Com. v. Veretnov, A.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

v. :

: :

ANATOLIY V. VERETNOV :

:

Appellant : No. 1081 MDA 2020

Appeal from the PCRA Order Entered July 28, 2020 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0001128-2010, CP-14-CR-0001137-2010, CP-14-CR-0001160-2010

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

v. :

: :

ANATOLIY V. VERETNOV :

:

Appellant : No. 1082 MDA 2020

Appeal from the PCRA Order Entered July 28, 2020 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0001128-2010, CP-14-CR-0001137-2010, CP-14-CR-0001160-2010

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

v. :

: :

ANATOLIY V. VERETNOV :

:

Appellant : No. 1083 MDA 2020

Appeal from the PCRA Order Entered July 28, 2020 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0001128-2010,

CP-14-CR-0001137-2010, CP-14-CR-0001160-2010

BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.: FILED AUGUST 04, 2021

Appellant Anatoliy V. Veretnov appeals from the order denying his timely

first Post Conviction Relief Act1 (PCRA) petition. Appellant contends that his

trial counsel was ineffective because counsel failed to object to identification

evidence and failed to object to prejudicial remarks in the Commonwealth’s

closing argument. Appellant also contends his prior PCRA counsel was

ineffective for not raising these claims in his prior PCRA petition. We affirm.

A previous panel of this Court summarized the procedural history of this

case as follows:

Appellant’s trial was joined with the trials of three codefendants, Alexi Semionov (Semionov), Maksim Illarionov (Illarionov), and Dmitriy Litvinov (Litvinov), facing similar charges.

On February 9, 2011, the consolidated trial [(first trial)] of the four codefendants began. After three days of trial, however, codefendant Semionov decided to enter a guilty plea. The Commonwealth thereafter informed the trial court of its intention to call Semionov as a witness against the remaining three codefendants. Upon the motion of all defendants, the trial court granted a mistrial on February 14, 2011.

Commonwealth v. Veretnov, 1979 MDA 2012, 2013 WL 11253373, at *1

(Pa. Super. filed Sept. 10, 2013) (unpublished mem.) (formatting altered).

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1 42 Pa.C.S. §§ 9541-9546.

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During the first trial, the victim for the charges under docket number

CP-14-CR-1128-2010, Min Suh (victim),

had trouble seeing [Appellant] in the courtroom, to which [the Commonwealth] mused to the [trial] court that the victim should be able to get a closer look. After the [trial c]ourt recessed for lunch, the victim was seated on a bench across from the elevators outside the courtroom with [an assistant district attorney]. It was during this time that [Appellant] was brought out of the elevator with his co-defendant, likely in handcuffs and shackles as is customary procedure in Centre County. . . . [T]he victim . . . did not identify [Appellant] until immediately after the lunch break when he stated that he saw [Appellant] in front of the elevator.

PCRA Ct. Op. & Order, 7/28/20, at 5 (record citation omitted).

Appellant’s second joint trial with Illarionov and Litvinov began on June

18, 2012. “During the second trial, the victim again testified that the first

time he identified [Appellant] was in front of the elevator.” Id. (record citation

omitted). “The victim also testified that he immediately recognized

[Appellant] upon exiting the elevator during the [first] trial, despite

[Appellant] having changed his appearance, and stating ‘that one is the

driver.’” Id. at 7 (record citation omitted). The victim also gave a detailed

description of Appellant’s appearance during the night of the robbery. Id. at

7-8.

Also, during Appellant’s second trial, “co-defendant Litvinov’s confession

[was] introduced by way of a transcript of a call between [Litvinov] and

Lindsay Coatman[, which] was . . . redacted to remove all descriptions and

references to [Appellant] other than ‘the guy that was on the computer.’”

PCRA Ct. Op., 11/6/20, at 6. Coatman testified “that when he met

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[Appellant], he saw him at the computer . . . .” Id. at 7. During closing

arguments, the Commonwealth referred to both Litvinov’s redacted confession

and Coatman’s testimony, implying that Appellant was the “guy that was on

the computer” referenced in Litvinov’s redacted confession. Id. at 5, 8; PCRA

Ct. Op. & Order, 7/28/20, at 9.

A subsequent panel of this Court summarized the subsequent procedural

history as follows:

On June 22, 2012, at docket number CP-14-CR-1128-2010, Appellant was found guilty by a jury of one count each of robbery, theft by unlawful taking or disposition, receiving stolen property, kidnapping, and simple assault, and three counts of criminal conspiracy. At docket number CP-14-CR-1137-2010, the jury determined that Appellant committed one count of robbery, criminal attempt, and criminal conspiracy to commit robbery and two counts of simple assault and reckless endangerment. For purposes of docket number CP-14-CR-1160-2010, Appellant was found guilty of one count each of theft by unlawful taking or disposition, receiving stolen property, and criminal mischief, seven counts of robbery, and nine counts of criminal conspiracy.

On July 20, 2012, the court imposed a judgment of sentence of thirty and one-half to sixty-one years imprisonment, and we affirmed. Our Supreme Court denied allowance of appeal on February 6, 2014. Commonwealth v. Veretnov, 85 A.3d 484 (Pa. 2014). [Ronald McGlaughlin, Esq. (trial counsel) represented Appellant at trial and on direct appeal.]

On December 24, 2014, Appellant filed a timely PCRA petition, and [the PCRA court appointed Justin P. Miller, Esq., as PCRA counsel]. [Attorney Miller] filed an amended PCRA petition accusing trial counsel of ineffectiveness in one respect: for failing to call Pennsylvania State Trooper Leigh Barrows as a witness. The PCRA court issued a notice of its intent to dismiss that petition without a hearing, and, on November 9, 2015, an order was docketed denying PCRA relief. In the order, the PCRA court determined that trial counsel was not ineffective for neglecting to call the witness in question. On November 2[4], 201[5], Appellant

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filed a document of record complaining about [Attorney Miller’s] failure to raise other issues that Appellant wanted the court to consider in that timely PCRA proceeding.

Three months later, on February 11, 2016, Appellant filed a second petition for PCRA relief, maintaining that he should be granted the right to file a nunc pro tunc appeal from the denial of PCRA relief because [Attorney Miller] abandoned him by not pursuing a requested appeal from the November 9, 201[5] order denying PCRA relief and because he never received the court’s Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition without a hearing. On August 8, 2016, the February 11, 2016 petition was granted, and Appellant’s appellate rights were reinstated. [The following day, the PCRA court appointed Julian G. Allat, Esq. as counsel.] . . .

On appeal, Appellant claims that “previous court-appointed PCRA counsel, [Attorney Miller,] provided ineffective assistance during collateral review proceedings in the instant matter . . . .”

Commonwealth v. Veretnov, 1467 MDA 2016, 2017 WL 4675918, at *1-2

(Pa. Super. filed Oct. 17, 2017) (unpublished mem.) (some citations and

footnote omitted). The PCRA court filed a Pa.R.A.P. 1925(a) opinion

requesting that this Court remand the matter for the PCRA court to consider

Appellant’s claims that Attorney Miller rendered ineffective assistance as PCRA

counsel because Appellant did not receive the Rule 907 notice before his

petition was dismissed. Id. at *2. This Court agreed and remanded this

matter to the PCRA court to consider the merits of Appellant’s claims regarding

Attorney Miller’s ineffectiveness. Id.

The PCRA court summarized the procedural history following remand as

follows:

On March 6th, 2018, this court issued a notice of intention to dismiss [Appellant’s] PCRA [petition] pursuant to Pa.R.Crim.P. 907. [Appellant] subsequently filed objections to the notice and

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requested an extension to file an amended PCRA [petition]. [The PCRA court granted Appellant’s request to file an amended petition, and Appellant] filed his amended PCRA [petition] on September 17th, 2018. On February 6th, 2019, this court again issued a notice of intent to dismiss the PCRA [petition]. [Appellant] filed his objections on March 18th, 2019, and on March 22nd, 2019, this court sustained [Appellant’s] objections and granted [Appellant] leave to amend his PCRA [petition]. An evidentiary hearing was held on October 10th, 2019, in which the Commonwealth conceded [Appellant] would need to be resentenced pursuant to Alleyne v. United States, 570 U.S. 99 (2013).

PCRA Ct. Op. & Order, 7/28/20, at 2 (formatting altered). We add that trial

counsel and Appellant testified at the October 10, 2019 evidentiary hearing.

Attorney Miller, Appellant’s previous PCRA counsel, did not testify at this

hearing.

On July 28, 2020, the PCRA granted Appellant’s PCRA petition in part,

ordering that he be resentenced pursuant to Alleyne, and denied the petition

in all other respects.2 Id. at 11. Appellant timely filed notices of appeal.3

Appellant subsequently filed a court-ordered Pa.R.A.P. 1925(b) statement.

The PCRA court issued a Rule 1925(a) opinion addressing Appellant’s claims.

On appeal, Appellant raises the following issues for our review:

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2 The PCRA court’s July 28, 2020 order granting resentencing and denying Appellant’s PCRA petition in all other respects is a final order for purposes of appeal. See Commonwealth v. Gaines, 127 A.3d 15, 19 (Pa. Super. 2015) (en banc) (holding that the PCRA court’s order, which granted resentencing but denied all other claims for PCRA relief, was a final appealable order).

3 Appellant filed a separate notice of appeal at each docket number pursuant

to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). This Court, sua sponte, consolidated these cases on October 28, 2020. See Pa.R.A.P. 513.

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1. Whether the [PCRA] court erred by denying Appellant[’s] . . .

PCRA petition alleging the ineffectiveness of trial counsel where trial counsel was ineffective for failing to object to the in-person identification of Appellant by Commonwealth witness Min Suh on the basis of prosecutorial misconduct where the attorney for the Commonwealth in bad faith sought to prejudice Appellant by subjecting Appellant to a suggestive, pretrial “lineup” procedure without the presence of counsel?

2. Whether the [PCRA] court erred by denying Appellant[’s] . . .

PCRA petition alleging the ineffectiveness of trial counsel where trial counsel was ineffective for failing to object to the prosecutor’s reference during closing arguments to statements made by a co-defendant that specifically implicated Appellant in violation of the trial court’s January 14, 2011 order redacting said statements pursuant to Bruton v. United States?[4]

Appellants’ Brief at 6 (formatting altered).

Following our review of the record, the parties’ briefs, and the well-

reasoned conclusions of the PCRA court, we affirm on the basis of the PCRA

court’s opinions. See PCRA Ct. Op., 11/6/20, at 2-9; PCRA Ct. Op. & Order,

7/28/20, at 4-10. Specifically, we find that the PCRA court properly concluded

that Appellant failed to establish that he was prejudiced by trial counsel’s

failure to object to the identification evidence because trial counsel cross-

examined the victim about his identification of Appellant and there was other

evidence linking Appellant to the robbery. See PCRA Ct. Op., 11/6/20, at 4-

5; PCRA Ct. Op. & Order, 7/28/20, at 8. Additionally, we agree with the PCRA

court that that Appellant failed to properly plead, in his September 17, 2020

PCRA petition (as amended), all three elements of an ineffective assistance of

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4 Bruton v. United States, 391 U.S. 123 (1968).

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counsel claim with respect to Attorney Miller not raising trial counsel’s

ineffectiveness regarding the identification issue in a prior PCRA petition,

which is required as part of a layered claim of ineffective assistance of counsel.

See PCRA Ct. Op., 11/6/20, at 2-3, 5. Furthermore, we agree with the PCRA

court that Appellant failed to prove at the evidentiary hearing that Attorney

Miller was ineffective because he did not call Attorney Miller as a witness. See

id. at 3, 5.

We also find that the PCRA court properly concluded that the Bruton

claim underlying Appellant’s second layered claim of ineffective assistance of

counsel is meritless.5 See PCRA Ct. Op., 11/6/20, at 5-9; PCRA Ct. Op. &

Order, 7/28/20, at 8-10.

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5 We note that Appellant also failed to establish his layered claim of ineffective

assistance of counsel with respect to the Bruton issue because he only pleaded boilerplate claims of Attorney Miller’s ineffectiveness in his September 17, 2020 PCRA petition (as amended) and his appellate brief. See Commonwealth v. Sandusky, 203 A.3d 1033, 1044 (Pa. Super. 2019) (stating “[b]oilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove that counsel was ineffective” (citation omitted)), appeal denied, 216 A.3d 1029 (Pa. 2019); and Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (stating “[w]here the defendant asserts a layered ineffectiveness claim he must properly argue each prong of the three-prong ineffectiveness test for each separate attorney” (citations omitted)).

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/4/2021

Circulated 07/21/2021 01:43 PM