Com. v. Young, B.

• Court: Superior Court of Pennsylvania
• Decided: April 11, 2019
• Docket: 1572 EDA 2018
• Status: Unpublished

Opinion

J-S02027-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRYANT L. YOUNG, : : Appellant. : No. 1572 EDA 2018

Appeal from the PCRA Order, May 2, 2018, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0006568-2013.

BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 11, 2019

Bryant L. Young appeals pro se from the order denying his first petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

The pertinent facts and procedural history are as follows: On October

2, 2014, a jury convicted Young of first-degree murder and related offenses.

That same day, the trial court imposed an aggregate sentence of life in prison.

Young filed an appeal to this Court, and we affirmed his judgment of sentence

on October 20, 2015. Commonwealth v. Young, 134 A.3d 102 (Pa. Super.

2015). Young did not seek further review.

On June 14, 2016, Young filed a pro se PCRA petition in which he raised

multiple claims including ineffectiveness of counsel, prosecutorial misconduct

and alleged constitutional violations. The PCRA court appointed counsel. On J-S02027-19

July 12, 2017, PCRA counsel filed an amended petition, which raised the sole

issue of ineffective assistance of trial counsel for failing to investigate and/or

call a witness to the shooting, Bernadette Suber. The Commonwealth filed a

motion in which it requested that Young file a witness certification pursuant

42 Pa.C.S.A. Pa.R.Crim.P. 902(a)(15). See also 42 Pa.C.S.A. § 9545(d)(1).

The PCRA court granted Young three continuances so that he could

investigate and obtain Ms. Suber’s certification. On January 12, 2018, after

Young failed to submit a certification, the PCRA court issued Pa.R.Crim.P. 907

notice of its intention to dismiss Young’s amended PCRA petition without a

hearing. Young filed a response, which contained Ms. Suber’s witness

certification.

The PCRA court held an evidentiary hearing on May 1, 2018, at which

time it heard Ms. Suber’s testimony, as well rebuttal testimony from

Philadelphia homicide detective James Burns. The next day, the PCRA court

heard testimony from a private investigator who had interviewed Ms. Suber.

At the conclusion of this hearing, the PCRA court informed the parties that it

did not find Ms. Suber credible, and, therefore dismissed the amended PCRA

petition.

When discussing Young’s right to file an appeal, the issue arose as to

whether Young wanted PCRA counsel to still represent him, or whether Young

wished to file an appeal pro se. PCRA counsel informed the court that he had

told Young that the PCRA court’s credibility determination regarding Ms.

Suber’s testimony would be binding on appeal, and therefore, if he did file an

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appeal on Young’s behalf, he would feel compelled to file a petition to withdraw

and an Anders brief.1 See N.T., 5/2/18, at 35.

The PCRA court engaged in a colloquy with Young, explained to him the

process that occurs when counsel seeks to withdraw, and, ultimately,

determined that Young wished to represent himself on appeal. The PCRA court

then asked Young if he had any questions, and the following exchange

occurred:

[YOUNG]: I wanted to ask one more thing. As far as the petition I filed, now just because we went on with Ms. Suber’s statement today, none of the other issues [raised in the pro se petition] had any merit, is that the reason?

THE COURT: The way it works is yes, I mean [PCRA counsel] made a determination when he filed his amended petition that this was the only issue with merit, and you’re represented by counsel. So, yes, that’s the only issue that I’ve addressed.

N.T., 5/2/18, at 44-45. This timely appeal followed. The PCRA court did not

require Pa.R.A.P. 1925 compliance. The PCRA court, however, has prepared

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1See Anders v. California, 386 U.S. 738 (1967). However, because Young would be appealing from the denial of post-conviction relief, PCRA counsel would need to follow the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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an opinion that addresses Young’s ineffectiveness claim involving Ms. Suber’s

testimony. See PCRA Court Opinion, 6/18/18.2

Young raises the following issues in his brief:

1. The PCRA court denied Young’s PCRA petition, finding that PCRA counsel was not ineffective for failing to file a “no merit” letter, pursuant to Finley, supra, stating that none of the issues raised in Young’s pro se memorandum of law in support of his PCRA petition was of arguable merit, thus PCRA counsel and the PCRA court failed to comply with the procedural requirements for allowing PCRA counsel to withdraw. Did the PCRA court commit reversible legal error by doing so?

2. The PCRA court denied [Young’s] PCRA petition, finding that PCRA counsel was not ineffective for failing to challenge the PCRA court’s refusal to sequester Commonwealth rebuttal witness, Detective James Burns, who shaped his rebuttal testimony in accordance with the testimony given by defense witness Ms. Suber. Did the PCRA court commit reversible legal error and a clear abuse of discretion in doing so?

See Young’s Brief at 4.

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

under the PCRA is to ascertain whether “the determination of the PCRA court

is supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92

(Pa. Super. 2013) (citations omitted). ____________________________________________

2Within this opinion, the PCRA court noted that Young filed a second PCRA petition on June 12, 2018, and that the court dismissed it as premature. See PCRA Court Opinion, 6/18/18, at 2 n.4.

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Before addressing the issues Young raises on appeal, we must first

determine whether the claims are properly before us. Both of Young’s claims

involve the alleged ineffectiveness of PCRA counsel. Such claims cannot be

raised after a notice of appeal has been filed. Commonwealth v. Henkel,

90 A.3d 16, 21-30 (Pa. Super. 2014) (discussing in detail appellate decisions

addressing the preservation of claims of PCRA counsel’s ineffectiveness).

Here, contrary to Young’s statement of his issues, the PCRA court never

addressed the effectiveness of PCRA counsel, but rather only addressed the

ineffectiveness of trial counsel. Young never challenged PCRA counsel’s

effectiveness before the PCRA court. Thus, Young inappropriately has raised

the claims regarding PCRA counsel for the first time on appeal. See

generally, Pa.R.A.P. 302(a).

In addition, Young’s first issue, as stated, misunderstands the

circumstances regarding PCRA counsel’s withdrawal. Clearly, the dictates of

Turner/Finley do not apply given the procedural history of this case. PCRA

counsel did not seek to withdraw once he had reviewed the record, but rather

filed an amended petition after which an evidentiary hearing was held. Thus,

the PCRA court was under no obligation to independently review of the issues

PCRA counsel chose not to pursue. PCRA counsel was granted permission to

withdraw because he believed an appeal of the denial of post-conviction relief

would be frivolous, and the PCRA court determined that Young was willing and

able to file the appeal pro se.

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As to Young’s second issue, we note that, in addition to not being

preserved for appeal, it is also undeveloped. Young provides no supporting

argument for this claim. Indeed, the Commonwealth contends that Detective

Burns was not inside the courtroom when Ms. Suber testified. See

Commonwealth’s Brief at 10, n.3.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/11/19

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