Com. v. Spivey, C.

Opinion

J.S52001/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellee :

:

v. :

:

:

CURTIS SPIVEY, :

:

Appellant : No. 1913 EDA 2012

Appeal from the PCRA Order May 21, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-0805781-2004

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 23, 2014 Appellant, Curtis Spivey, appeals pro se from the order entered in the Philadelphia County Court of Common Pleas dismissing his timely, first Post Conviction Relief Act1 per curiam order,2 previously remanded for the PCRA court to conduct a Grazier hearing.3 The PCRA court has done so and has permitted Appellant

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 Order, 1913 EDA 2012 (Pa. Super. filed Sept. 6, 2012) (per curiam).

3 -conviction and

appellate stages, an on-the record determination should be made that the Commonwealth v.

to proceed pro se in this appeal. Appellant argues: (1) the PCRA court erred in ignoring his request to act pro se in the underlying PCRA proceedings; and (2) he was denied access to discovery, which prevented him from pursing another issue on appeal Finley letter4 was deficient. We affirm.

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in August of 2006, at which he

acted pro se,6 the jury found him guilty of murder in the first degree,7 possessing an instrument of crime, and carrying a firearm on public streets or public property in Philadelphia.8 The trial court imposed an aggregate term of life imprisonment.

Appellant took a counseled appeal. On November 24, 2008, this Court

Glacken, 32 A.3d 750, 752 (Pa. Super. 2011) (quoting Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998)). 4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 5 The first trial, in December of 2005, was held before the Honorable M. Theresa Sarmina; the Commonwealth pursued the death penalty. The second trial was held before the Honorable Jeffrey P. Minehart, who also conducted the instant PCRA proceeding. The Commonwealth did not pursue the death penalty at the second trial. N.T. Pre-Trial Mot., 7/17/06, at 3. 6 The court appointed stand-by counsel, who was not counsel during the first trial, to assist Appellant. 7 18 Pa.C.S. § 2502(a).

8 18 Pa.C.S. §§ 907, 6108.

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affirmed the judgment of sentence.9 On September 15, 2009, the

appeal.

On September 13, 2010, Appellant filed the instant, timely PCRA petition pro se. The petition alleged 105 instances of trial court, police, and prosecutorial error, as well as ineffectiveness of direct appeal counsel for failure to raise certain issues, including the validity of his waiver of counsel -

31. Appellant also averred that his discovery, letters, transcripts, and pictures were illegally taken from him.

The PCRA court appointed Joseph Sco Appellant. Appellant then filed a pro se letter with the court, stating he was waiving his right to counsel and invoking his right to self-representation,. He also subsequently filed a pro se amended PCRA petition on September 15, 2011.

Finley letter with the

PCRA court. The Finley letter summarized that Appellant alleged (1) his

9 Commonwealth v. Spivey, 1376 EDA 2007 (unpublished memorandum Pa. Super. filed Nov. 24, 2008) (denying relief on claims that evidence was insufficient and trial court erred in admitting autopsy photographs). This Court initially remanded for the trial court to supplement the record with trial transcripts and autopsy photographs that were introduced as evidence at trial. Commonwealth v. Spivey, 1376 EDA 2007 (unpublished memorandum Pa. Super. filed Apr. 30, 2008).

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waiver of counsel at trial was not voluntary, intelligent, or knowing, and that he was incompetent to represent himself; (2) the trial court failed to provide

tandby counsel at trial,

inappropriate remarks during opening and closing arguments and examination of witnesses; (6) the trial court acted with bias; and (7) appellate counsel was ineffective for failing to raise certain issues. Attorney Finley Letter, 12/8/11, at 2-

lure to preserve

them at trial or raise them on direct appeal.

Appellant filed a pro se objection to the Finley letter and a supplemental objection to the Finley letter.10 Both averred that Attorney Finley letter was not valid by virtue of Appell right to proceed pro se. However, Appellant simultaneously averred that counsel failed to comply with the Finley requirements, by failing to provide him a copy of the application to withdraw, advise him of his right to proceed pro se or with privately-retained counsel, and address all the issues in his

10 19, 2012,

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pro se PCRA petition.11 On March 29, 2012, the PCRA court issued Pa.R.Crim.P. 907 notice of

the court entered an order dismissing the petition,12 and then appointed another attorney to represent Appellant. Appellant subsequently filed a pro

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copy of the Finley letter. 12 Previously in the instant appeal, this Court directed the PCRA court to supplement the record with petition. Order, 1913 EDA 2012 (Pa. Super. filed Nov. 8, 2013) (per curiam). The PCRA court did not provide a traditional order, but instead forwarded notes of testimony of a May 21, 2012 proceeding, the sum of which states:

Court Crier: No. 13, Curtis Spivey [Appellant].

The Court: The 907 was sent.

The Court: So the petition is formally dismissed.

(Proceedings concluded.)

N.T. PCRA, 5/21/12, at 3. Attached to this transcript is a copy of the page

Furthermore, we note that on May 22, 2012, the day after the dismissal of the petition, the court issued a second Rule 907 notice.

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se notice of appeal13 and later a petition to waive counsel and proceed pro se.

On September 6, 2012, this Court, by per curiam order, remanded this case to the PCRA court to conduct a Grazier hearing. The court did so approximately one year later, on August 30, 2013, and entered an order the same day permitting Appellant to proceed pro se in this appeal. The PCRA court also filed an opinion.

After the Grazier hearing and return of this case to this Court, Appellant filed at least eight pro se petitions with this Court. In response, this Court issued two per curiam orders: one on November 8, 2013, directing the PCRA court to supplement the record with transcripts and documents requested by Appellant, and one on January 28, 2014, directing our Prothonotary to provide the recently-acquired notes of testimony to Appellant. Finally, Appellant filed a pro se appellate brief on April 4, 2014, and a supplemental appellate brief on May 27th.14 In his initial brief, Appellant presents one issue for our review:

pro se in

13 Although Appellant filed the notice of appeal pro se while represented by counsel, we note the notice of appeal was filed within the thirty-day period under Pa.R.A.P. 903(a). See Pa.R.A.P. 903(a) (stating appeal shall be filed within thirty days after entry of order from which appeal is taken); Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (reiterating there is no right to hybrid representation). 14 The Commonwealth has filed an a

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ppellant requests

relief in the form of a Grazier hearing to determine whether he may proceed pro se for not holding a hearing that the issues in his pro se PCRA petition were waived or meritless Grazier We note the relevant standard of review:

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. . . .

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012) (citations omitted), appeal denied, 64 A.3d 631 (Pa. 2013). Furthermore, we note:

To plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act.

Id. at 1189-90 (citation omitted).

While this Court previously remanded for the PCRA court to conduct a Grazier hearing to determine whether Appellant may proceed pro se in the instant appeal, his main issue now is whether the court erred in not allowing him to act pro se in the underlying PCRA proceedings. The sum

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for a Grazier The PCRA court opined:

proceed pro se in the PCRA proceedings], no relief is due .

. . because he demonstrated by filing a pro se PCRA petition that contained approximately 100 repetitive and vaguely worded issues that were either waived or patently lacking in merit that he was incapable of representing himself during the PCRA process without causing due and unnecessary delay and confusion. In Commonwealth v.

Staton, 12 A.3d 277, 2[7]9 (Pa. 2010), our Supreme Court stated that when self-representation will lead to

defendant is properly denied the right to represent himself.

...

PCRA Ct. Op., 9/5/13, at 3 (unpaginated).

We find, however, that Appellant ignores or overlooks the fact that

in fact pro se pro se PCRA petition and supplemental petition were still before the PCRA court to consider, as well as his objection to the Finley letter and supplemental objection to the Finley letter. Despite the

PCRA court to determine whether Appellant may litigate his PCRA petition pro se.15

supplemental brief that he was not provided discovery, transcripts, and other documents necessary to prepare a PCRA petition and an appellate 15 Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2012).

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brief. He avers that

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whether

Finley letter failed to address many of his pro se issues and whether the PCRA court erred in dismissing his petition because Finley -14.

We hold no relief is due. Appellant fails to explain what information is missing, and why or how the information can help him overcome the PCRA

[Appellant], who represented himself at trial, either did not preserve them at trial or was precluded from raising them because he represented himself at trial and thus[ ] could not raise his own ineffectiv See PCRA Ct. Op.

relief.

Order affirmed.

16 The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement, and Appellant did not file one after taking the instant appeal. Instead, Appellant had filed a pro se

informing the PCRA court that he wished to proceed pro se. Obviously, this filing was improper, as the PCRA court had not ruled on his PCRA petition and no notice of appeal had been filed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/23/2014