Commonwealth v. Rykard

55 A.3d 1177, 2012 Pa. Super. 199, 2012 WL 4077380, 2012 Pa. Super. LEXIS 2513
CourtSuperior Court of Pennsylvania
DecidedSeptember 18, 2012
StatusPublished
Cited by623 cases

This text of 55 A.3d 1177 (Commonwealth v. Rykard) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Rykard, 55 A.3d 1177, 2012 Pa. Super. 199, 2012 WL 4077380, 2012 Pa. Super. LEXIS 2513 (Pa. Ct. App. 2012).

Opinions

OPINION BY

BOWES, J.:

Ernest Wesley Rykard appeals pro se from the May 27, 2011 order dismissing his petition for post-conviction relief. Following a remand to determine the status of PCRA counsel, we affirm.

We previously delineated the history of this case as follows.

A jury convicted Appellant of felony murder due to his role in the execution-style killing of Shawn Hutchinson. The underlying facts involve a plan by Appellant and several cohorts to rob Mr. Hutchinson of two eight balls of crack cocaine. Specifically, on November 29, 2006, Appellant, Jacquin Carr, Barbara Hamm, and Lizyvette Rosario-Casanova were smoking crack cocaine.1 As the group began to run low on the drug, they hatched a plan to rob someone to attain more drugs. They then encountered another individual, Rachel Rakita, who informed Appellant, Mr. Carr, and Ms. Rosario-Casanova that she could acquire more cocaine. Ms. Rakita placed a telephone call to Shawn Hutchinson and agreed to purchase two eight balls of crack cocaine from him. The group then drove to Hutchinson’s apartment.
The group, except for Ms. Hamm, agreed that Ms. Rakita would lure Hutchinson outside so that they could rob him.2 Once the victim was outside, Appellant and Mr. Carr seized the victim and Ms. Rakita returned to the vehicle. Mr. Carr held the victim’s arms behind his back while Appellant held a silver small caliber handgun on the victim and searched him for the drugs. Ms. Rosario-Casanova ultimately removed an eight ball from the victim’s back pocket. She then walked back toward the car and prevented Ms. Rakita from attempting to drive away. Mr. Carr remained behind holding the victim down while Appellant pointed the firearm at his head. Appellant then fired a shot into the victim’s head, and he and Mr. Carr returned to the vehicle. Afterward, the group traveled to Appellant’s sister’s home where they proceeded to smoke the stolen crack cocaine. While at his sister’s house, Appellant informed his nephews that he believed he killed somebody and showed them a bullet easing. After smoking crack, Appellant and Ms. Rosario-Casanova trav-elled to another house, where Appellant displayed the gun. Ms. Rosario-Casanova began to play with the weapon and caused it to jam. A short while later, Appellant disposed of the gun. Thereafter, police stopped Appellant and Ms. [1182]*1182Rosario-Gasanova, and Ms. Rosario-Casanova was arrested and taken into custody. Police did not arrest Appellant at that time.
The Commonwealth later arrested and charged Appellant with criminal homicide, robbery, and conspiracy to commit robbery. Following a jury trial wherein the Commonwealth tried Appellant and Mr. Carr jointly, the jury convicted Appellant of one count of felony murder.3 The court sentenced Appellant to the mandatory term of life imprisonment. Appellant filed post-sentence motions, which the court denied. Thereafter, Appellant neglected to file a timely direct appeal, but filed a motion to reinstate his direct appeal rights nunc pro tunc. The trial court granted that request, and Appellant filed his direct appeal. This Court affirmed, Commonwealth v. Rykard, 976 A.2d 1214 (Pa.Super.2009) (unpublished memorandum), and the Pennsylvania Supreme Court denied Appellant’s petition for allowance of appeal on November 30, 2009. Commonwealth v. Rykard [603 Pa. 709], 985 A.2d 219 (Pa.2009).
Appellant timely filed a pro se post-conviction petition on October 25, 2010. The PCRA court appointed counsel and directed that he file an amended petition within forty-five days. Counsel, however, petitioned to withdraw and filed a no-merit letter pursuant to Commonwealth v. Turner [518 Pa. 491], 544 A.2d 927 (Pa.1988) and Commonwealth v. Finley [379 Pa.Super. 390], 550 A.2d 213 (Pa.Super.1988) (“Tumer/Finley”), addressing the issues Appellant submitted in his pro se petition and an additional issue raised by Appellant at a meeting he had with counsel. Additionally, counsel averred that he could not find any other issues of merit. The PCRA court agreed with counsel’s assessment and issued a notice of intent to dismiss on December 27, 2010. Appellant, pro se, filed a petition for transcripts and a stay of proceedings to allow him to respond.4 The court delayed issuing its final order and Appellant, after the lapse of the one-year jurisdictional time-bar, responded to the notice of dismissal on May 23, 2011. In his response, Appellant advanced ineffective assistance of PCRA counsel claims and several other issues not expressed in his original pro se petition. Thereafter, the court dismissed Appellant’s petition. This appeal ensued. The PCRA court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and he complied.

Commonwealth v. Rykard, 50 A.3d 235 (Pa.Super.2012) (unpublished memorandum) (filed May 7, 2012).

Although it appeared that the PCRA court allowed counsel to withdraw, no order was contained within the record expressly authorizing counsel’s withdrawal. Accordingly, out of an abundance of caution, we remanded to the PCRA court for a determination as to counsel’s current status in this case, but retained jurisdiction. The PCRA court conducted a hearing as directed. However, at the conclusion of that hearing it appointed new counsel for the purpose of filing a new amended PCRA petition. This Court voided that order as exceeding the scope of our limited remand and the PCRA court has indicated that Tumer/Finley [1183]*1183counsel was permitted to withdraw.1 The matter is now ready for review. Appellant raises five issues for our consideration.

I. Did the court commit an error of law when it dismissed Appellant’s PCRA petition?
II. Was PCRA counsel ineffective for failing to investigate, raise and address all of the issues presented in Appellant’s pro se PCRA petition and failing to do a proper independent review of the record?
III. Was PCRA and trial counsel ineffective for failing to raise and preserve for appellate review the Brady violation where the witnesses Lizyvette Rosario-Casanovo, Rachel Rakita and Barbara Hamm all had tacit agreements with the Commonwealth in exchange for their testimony and the District Attorney’s Office had a duty to disclose said agreements to trial counsel, the court and the jury?
IV. Was trial counsel ineffective for failing to locate and develop an expert rebuttal witness to counter the erroneous findings of Commonwealth expert Dr. Wayne Ross?
V. Was trial counsel ineffective for failing to know what [a] defense witness was going to say?

Appellant’s brief at 5.

This Court recently delineated the governing precepts when reviewing a PCRA.

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Burkett,

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Cite This Page — Counsel Stack

Bluebook (online)
55 A.3d 1177, 2012 Pa. Super. 199, 2012 WL 4077380, 2012 Pa. Super. LEXIS 2513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-rykard-pasuperct-2012.