Com. v. Witts, R.

• Court: Superior Court of Pennsylvania
• Decided: December 7, 2020
• Docket: 860 EDA 2019
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RASHEED WITTS : : Appellant : No. 860 EDA 2019

Appeal from the PCRA Order Entered March 4, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0311351-2004, CP-51-CR-0700421-2005

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RASHEED WITTS : : Appellant : No. 861 EDA 2019

Appeal from the PCRA Order Entered March 4, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0311351-2004, CP-51-CR-0700421-2005

BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 07, 2020

Rasheed Witts appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful

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* Retired Senior Judge assigned to the Superior Court. J-S39009-20

review, we vacate, remand, and reinstate Witts’ direct appeal rights nunc pro

tunc.

On August 26, 2005, Witts entered a negotiated guilty plea, under two

separate docket numbers, to one count each of possession with intent to

deliver a controlled substance (PWID)1 and criminal conspiracy2 (CP-51-CR-

0311351-2004) and one count of PWID (CP-51-CR-0700421-2005). Witts

was sentenced to 11½ to 23 months of incarceration, with immediate

concurrent parole on each count, plus one year of reporting probation.

On October 19, 2005, and December 28, 2005, Witts was arrested and

charged with PWID. On July 7, 2006, and July 17, 2006, Witts pled guilty to

both charges, respectively, and received an Intermediate Punishment (IP)

Program sentence.3 On November 22, 2006, the court found Witts directly

violated his probation, terminated his parole, revoked his probation and

sentenced him to 11½ to 23 months’ imprisonment, plus three years of

reporting probation with immediate parole to house arrest. The probation

violation sentence was ordered to run concurrent on all counts and also

concurrent with his July 2006 sentence. On May 1, 2007, Witts was arrested

again for PWID. Although he was ultimately found not guilty of the charge,

1 35 P.S. § 780-113(a)(30).

2 18 Pa.C.S.A. § 903.

3 See 42 Pa.C.S. § 9721(a)(6) (listing county IP as sentencing alternative); see also id. at § 9763(a) (general rules for imposing county IP sentence); id. at § 9804(a) (describing county IP program options).

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Witts continued to test positive for various drugs while on probation. On May

8, 2008, the court held a second parole/probation violation hearing and

determined that Witts had technically violated his probation. The court

revoked Witts’ parole and ordered him to serve back time, followed by three

years of reporting probation, with immediate parole to house arrest with

electronic monitoring. The court reminded Witts that he faced a maximum

aggregate term of thirty years’ imprisonment, and warned him that if he

violated probation again, his sentence would be made consecutive to any

sentence he received for a new conviction.

On November 2, 2009, Witts was arrested for and charged again with

PWID. On January 21, 2010, Witts was arrested and charged with possession

of a controlled substance.4 After finding him guilty of the possession charge,

the court sentenced Witts, on September 28, 2010, to 18 months of probation.

On March 9, 2011, Witts was found guilty of PWID and sentenced to 3 to 6

years’ incarceration, with credit for time served.

On February 6, 2012, the court found that Witts had directly violated his

probation—for the third time. The court terminated Witts’ parole, revoked his

probation, and sentenced him to consecutive terms of 5 to 10 years of state

incarceration on each docket number for PWID; the sentence was also ordered

4 On May 25, 2010, Witts was arrested and subsequently convicted of false identification to law enforcement; however, Witts was sentenced to no further penalty.

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to run consecutive to his March 2011 sentence of 3 to 6 years’ imprisonment.

On the conspiracy charge,5 Witts was sentenced to 10 years of reporting

probation, to run consecutively to his parole. Witts asked the court to

reconsider his sentence, informing the court that he had been unable to

contact his attorney. On February 21, 2012, Witts filed a pro se petition to

vacate and reconsider his sentence. On March 7, 2012, Witts asked the public

defender to file an appeal. The public defender was removed from the case

and new counsel was appointed to represent Witts. Witts filed a notice of

appeal and his appellate rights were reinstated nunc pro tunc. On appeal,

Witts raised two issues: (1) whether the sentence imposed was illegal where

it was not based upon the gravity of the offense, the extent of Witts’ prior

record, the prospect of rehabilitation, and an assessment of mitigating and

aggravating factors; and (2) whether the court abused its discretion by

imposing a manifestly excessive sentence that because of its consecutive

nature is evidence of the court’s bias against Witts.

On appeal, our Court found that Witts’ revocation probation sentence of

two consecutive 5-10 year terms of imprisonment was “within the statutory

confines and[,] thus[,] legal.” Commonwealth v. Witts, 1321 EDA 2012 at

*2-*3 (Pa. Super. filed June 28, 2013) (unpublished memorandum decision).

The Court determined that Witts’ remaining claims implicated the

5 The court’s violation of parole order notes that the conspiracy charge is “[n]on-offense related.” Violation of Parole Order—Case Assessment Summary, 2/6/12, at 4.

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discretionary aspects of his sentence. Id. at *2. However, because Witts

failed to include a Pa.R.A.P. 2119(f) statement in his appellate brief and the

Commonwealth objected to its omission, our Court found his sentencing claims

waived on appeal. Id. at *4. In a footnote, our Court alternatively noted that

“[e]ven if Witts had properly preserved his sentencing challenge, we would

determine that it lacks merit for the reasons set forth by the trial court in its

well-reasoned [o]pinion. See Trial Court Opinion, 11/2/12, at 8-9.” Id. at *4

n.1. Witts did not file a petition for allowance of appeal.

On October 10, 2013, Witts filed a timely pro se PCRA petition. On July

15, 2016, Peter A. Levin, Esquire, was appointed to represent Witts. On

January 20, 2017, Attorney Levin filed an amended PCRA petition seeking,

among other things, that Witts be granted the right to file a petition for

allowance of appeal nunc pro tunc, alleging that “[t]rial counsel was ineffective

for failing to advise [Witts] that his Superior Court appeal was denied and that

he could file an Allocatur Petition to the Supreme Court of Pennsylvania.”

Amended PCRA Petition, 1/20/17, at 4-5. On May 18, 2017, the trial court

reinstated Witts’ appellate rights nunc pro tunc. On June 6, 2017, Witts filed

a nunc pro tunc petition for allowance of appeal, which the Supreme Court

denied on September 11, 2017.

Witts filed the instant PCRA petition pro se on January 2, 2018. On

January 11, 2018, PCRA counsel was appointed; counsel filed an amended

petition on November 7, 2018. On January 18, 2019, the court issued Witts

Pa.R.Crim.P. 907 notice of its intent to dismiss his petition without a hearing;

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Witts did not file a response. On March 15, 2019, the court dismissed Witts’

petition without a hearing. Witts filed a timely notice of appeal and court-

ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.

On appeal, Witts raises the following issues for our consideration:

(1) Whether the PCRA court erred by dismissing the PCRA petition when evidence was presented that appellate counsel was ineffective for failing to preserve all discretionary sentencing claims by filing a Rule 2119(f) statement.

(2) Whether the PCRA court erred by failing to grant an evidentiary hearing.

Appellant’s Brief, at 8.

Instantly, the March 4, 2019 order denying Witts’ PCRA petition lists

both underlying trial court docket numbers (Nos. 0311351-2004 & 0700421-

2005). On March 15, 2019, Witts filed identical notices of appeal for each

appeal (860 EDA 2019 & 861 EDA 2019); the notice lists both trial court docket

numbers. On April 29, 2019, our Court issued a rule to show cause why Witts’

“appeal should not be quashed in light of [Commonwealth v. ]Walker[, 185

A.3d 969 (Pa. 2018)].” Per Curiam Order, 4/29/19.6

6 In May 2019, our Prothonotary was directed to forward copies of pro se filings by Witts to Samuel A. DiMatteo, Jr., Esquire, as the record did not indicate that the trial court had granted counsel permission to withdraw. On August 5, 2019, our Court remanded the matter to the trial court for a determination as to whether counsel had abandoned Witts and to determine Witts’ eligibility for court-appointed counsel. After a hearing, the trial court determined that counsel did not, in fact, abandon Witts and that Attorney

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On September 11, 2019, this Court directed counsel to show cause why

the appeal should not be quashed pursuant to Walker. On September 17,

2019, counsel filed a response to the rule to show cause, stating “Counsel has

made corrections to its Case Management system, to assure to . . . make

adjustments to account for [t]he Rules of Appellate Procedure and

[s]pecifically Com[.] v. Walker[.]” Response to Order to Show Cause,

9/17/19, at ¶ 32.7 However, on December 9, 2019, in consideration of Witts’

response, our Court referred the Walker issue to the panel assigned to decide

the merits of the appeal. Per Curiam Order, 12/9/19.

Thus, before addressing Witts’ claims on appeal, we must first resolve

the procedural issue presented in the case. In Walker, our Supreme Court

found that Pa.R.A.P. 341 and its Official Comment, stating that “[w]here . . .

one or more orders resolves issues arising on more than one docket or relating

to more than one judgment, separate notices of appeal must be filed,”

constituted “a bright-line mandatory instruction to practitioners to file

DiMatteo would remain counsel of record. When Attorney DiMatteo failed to respond to our Court’s rule to show cause issued on April 29, 2019, our Court directed counsel to show cause why the appeal should not be quashed pursuant to Walker.

7 In November 2019, counsel failed to file a brief for Witts, so the appeal was remanded for a determination as to whether counsel abandoned Witts on appeal. On December 16, 2019, the trial court issued an order finding that counsel did abandon Witts on appeal, withdrew Attorney DiMatteo from the matter, and appointed appellate counsel, Lawrence J. O’Connor, Jr., Esquire, to represent Witts in both cases below.

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separate notices of appeal.” Walker, 185 A.3d at 976-77. The failure to do

so requires the appellate court to quash the appeal. Id. at 977.

Recently, our full Court revisited the Walker holding in

Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc)8

and Commonwealth v. Larkin, 235 A.3d 350 (Pa. Super. 2020) (en banc).

In those cases, our Court concluded that “in so far as Creese[9] stated ‘a notice

of appeal may contain only one docket number[,]’ . . . that pronouncement

is overruled.” See Johnson, supra at 1148 (emphasis in original); see also

Larkin, supra at 352 (recognizing that Johnson “expressly overruled Creese

to the extent that Creese interpreted Walker as requiring the Superior Court

to quash appeals when an appellant, who is appealing from multiple docket

numbers, files notices of appeal with all of the docket numbers listed on each

notice of appeal.”).

Similar to the defendant in Larkin, Witts filed identical notices of appeal

for his two cases below that listed both trial court docket numbers. Since it

“is of no consequence” that Witts’ notices of appeal contained more than one

docket number, Johnson, supra at 1158; Larkin, supra at 352, and because ____________________________________________

8On November 18, 2020, the Pennsylvania Supreme Court denied Johnson’s petitions for allowance of appeal in Nos. 269, 270, 271 & 272 EAL 2020. See Order, 11/18/20 at 2.

9 See Commonwealth v. Creese, 216 A.3d 1142, 1144 (Pa. Super. 2019) (construing mandates of Walker to mean that “we may not accept a notice of appeal listing multiple docket numbers, even if those notices are included in the records of each case.”).

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Witts complied with Walker by “fil[ing] separate appeals from an order that

resolves issues arising on more than one docket,” id. at 977 (emphasis

added), we decline to quash the appeal for violating Walker and its attendant

requirements. Therefore, we shall proceed to address the issues Witts raises

on appeal.10

Witts claims that the PCRA court improperly dismissed his petition,

without a hearing, where counsel was ineffective for failing to include a Rule

2119(f) statement in his appellate brief, thus waiving his discretionary aspects

of sentencing claims.

This Court’s standard of review regarding an order dismissing a PCRA

petition is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error. Commonwealth v. Walls, 993

A.2d 289, 294 (Pa. Super. 2010). The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. at 294-95. Moreover, “the right to an evidentiary hearing on a [PCRA]

petition is not absolute.” Commonwealth v. Jordon, 772 A.2d 1011, 1014

(Pa. Super. 2001).

It is within the PCRA court’s discretion to decline to hold a hearing if the petitioner’s claim is patently frivolous and has no support either in the record or other evidence. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to ____________________________________________

10The Commonwealth notes in its brief that it “does not seek quashal based on non-compliance with Walker,” Appellee’s Brief, at 11 n.4, where “the concerns addressed by the Walker decision are not at issue here.” Id. at 12 n.4.

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determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.

Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004)

(citations omitted).

In order to succeed on an ineffectiveness claim, an appellant must prove

that: (1) the underlying legal claim has arguable merit; (2) counsel had no

reasonable basis for his or her inaction; and (3) the appellant suffered

prejudice because of counsel’s ineffectiveness. Commonwealth v. Pierce,

527 A.2d 972, 975-76 (Pa. 1987). To establish prejudice, the appellant must

show that there is a reasonable probability that the outcome of the

proceedings would have been different but for counsel’s action or inaction.

Commonwealth v. Davido, 106 A.3d 611, 621 (Pa. 2014).

In limited circumstances prejudice is presumed where counsel’s actions

amounted to the functional equivalent of having no representation at all.

Commonwealth v. Brown, 18 A.3d 1147, 1156 (Pa. Super. 2011). “[T]he

decision [of] whether to presume prejudice or require an appellant to

demonstrate actual prejudice ‘turns on the magnitude of the deprivation of

the right to effective assistance of counsel.’” Commonwealth v. Halley, 870

A.2d 795, 801 (Pa. 2005). “The difference in degree between failures that

completely foreclose appellate review, and those which may result in

narrowing its ambit, justifies application of the presumption in the more

extreme instance.” Id.

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Here, we conclude that counsel’s failure to include a Rule 2119(f)

statement in Witts’ appellate brief resulted in total deprivation of his appellate

rights where the issues he raised on direct appeal solely concerned the

discretionary aspects of his sentence.

On direct appeal, Witts raised the following issues in his Rule 1925(b)

statement:

(1) Whether the sentence imposed by the trial court after a probation violation hearing was an illegal sentence where the sentence was not based upon the gravity of the violation, the extent of [Witts’] record, prospect of rehabilitation, and an assessment of both [Witts’] mitigating and aggravating factors as noted in 42 Pa.C.S. § 9721[,] et seq[.]

(2) Whether the trial court abused its discretion by entering a manifestly excessive sentence to such a degree that the consecutive sentences is evidence of the court’s bias against or animus toward [Witts].

Pa.R.A.P. 1925(b) Statement, 7/3/12, at 1-2. Although Witts, in his first

issue, posits that the sentencing court imposed an illegal sentence, he

supports the claim by stating that the court did not consider factors found in

section 9721 of the Sentencing Code. Such a question raises an issue with

regard to the discretionary aspects of his sentence, not its legality.11 See

Commonwealth v. Lucky, 229 A.3d 657 (Pa. Super. 2020);

Commonwealth v. Derry, 150 A.3d 987 (Pa. Super. 2016). Moreover, in ____________________________________________

11In Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007), our Court set forth examples of the narrow class of cases that constitute an illegal sentence: those that fall outside the parameters prescribed by a statute; double jeopardy claims; Apprendi issues; and lack of authority or jurisdiction of court to impose sentence of particular length or type. Id. at 21.

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his second issue, Witts claims that his sentence was excessive due to its

consecutive nature, and that such a sentence demonstrates the court’s bias

against him. Again, this raises a challenge to the discretionary aspects of his

sentence, not the legality of it. Commonwealth v. Caldwell, 117 A.3d 763

(Pa. Super. 2015); Commonwealth v. Williams, 69 A.3d 735 (Pa. Super.

2013); Robinson, supra. In fact, on direct appeal, our Court acknowledged

that while “Witts purports to raise a challenge to the legality of his sentence[,

. . . his] claims are, in fact, a challenge to the discretionary aspects of the

sentence, and we will address them as such.” Witts, supra at *2. Thus, we

conclude that counsel’s failure to include a Rule 2119(f) statement in Witts’

appellate brief, coupled with the Commonwealth’s objection to its omission,

effectively waived all of Witts’ issues on appeal.

To the extent that the Commonwealth claims that our Court alternatively

reviewed, on the merits, Witts’ discretionary sentencing claims in a footnote,

we recognize that such a discussion was merely dicta and did not constitute

the “independent legal review of his case that he was entitled to.” See

Commonwealth v. Johnson, 889 A.2d 620, 624 (Pa. Super. 2005), citing

Commonwealth v. Franklin, 823 A.2d 906, 910 (Pa. Super. 2003).

Moreover, pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.

1987), if an appellant fails to include a Rule 2119(f) statement in his or her

brief where it is required and the Commonwealth objects, our Court may not

consider the merits of the discretionary sentencing claim. See id. at 19.

Thus, Witts was effectively denied representation on appeal, where all of his

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claims were considered waived as a result of counsel’s failure to file a Rule

2119(f) statement. Johnson, supra at 623 (“[C]ounsel’s failure to include a

Pa.R.A.P. 2119(f) statement in the brief compromised appellant’s direct

appeal rights.”). See Commonwealth v. Anderson, 830 A.2d 1013, 1017

(Pa. Super. 2003) (in order to invoke appellate court’s jurisdiction over

discretionary aspects of sentence, appellant must include Rule 2119(f)

statement in brief); see also Commonwealth v. Montgomery, 861 A.2d

304, 308 (Pa. Super. 2004) (same).

Accordingly, we are constrained to find that appellate counsel was per

se ineffective for failing to include a Rule 2119(f) statement in Witts’ appellate

brief. See Commonwealth v. Rosado, 150 A.3d 425, 433 (Pa. 2016)

(“[E]rrors which completely foreclose appellate review amount to a

constructive denial of counsel and[,] thus[,] ineffective assistance of counsel

per se, whereas those which only partially foreclose such review are subject

to the ordinary [Pierce] framework.”); see also Commonwealth v.

Hernandez, 755 A.2d 1, 11-12 (Pa. Super. 2000), aff’d in part by 817 A.2d

479 (Pa. 2003) (first two prongs of ineffectiveness test clearly met where

counsel fails to follow procedural rules to ensure requested appellate review

of criminal defendant’s claims). Therefore, we vacate, remand and reinstate

Witts’ direct appeal rights nunc pro tunc. Johnson, supra.

Order vacated. Case remanded for reinstatement of Witts’ right to file

direct appeal nunc pro tunc. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/7/20

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