Opinion
J-S95037-16 No. 2115 EDA 2015
02-28-2017
COMMONWEALTH OF PENNSYLVANIA v. PHILLIP McCOY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 30, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0008542-2008 BEFORE: STABILE, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Phillip McCoy ("McCoy") appeals from the Order dismissing his first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
In its Opinion, the PCRA court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 4/29/16, at 1-6.
On appeal, McCoy raises the following issues for our review:
1. Whether the [PCRA c]ourt erred as a matter of law, in that [] McCoy should have been given a hearing on the merits of his [Petition], because it contained genuine issues of fact:
a. [W]hether trial counsel was ineffective for the failure to contact an available potential fact and alibi witness?
b. Whether [McCoy's trial counsel] was ineffective for his failure to object to prejudicial remarks in the prosecutor's closing statement?
c. Whether other failures of trial counsel[, to] raise post-trial and post-sentence motions which may have prevented an illegal sentence, miscalculations of credit, as well as preserving issues for appeal, created ineffective assistance of counsel?
Brief for Appellant at 8.
2. Whether court[-]appointed PCRA counsel's performance was deficient[,] and thereby denied [] McCoy his right to counsel in a post-conviction collateral proceeding?
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. This Court may affirm a PCRA court's decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
The PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied "that there are no genuine issues concerning any material fact, the petitioner is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by further proceedings." Commonwealth v. Paddy , 15 A.3d 431, 442 (Pa. 2011); see also Pa.R.Crim.P. 907. "To obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Paddy , 15 A.3d at 442 (quoting Commonweath v. D'Amato , 856 A.2d 806, 820 (Pa. 2004)). An evidentiary hearing "is not meant to function as a fishing expedition for any possible evidence that may support some speculative claim of ineffectiveness." Commonwealth v. Jones , 811 A.2d 994, 1003 n.8 (Pa. 2002) (citation omitted).
In his first issue, McCoy asserts three separate bases on which he claims that the PCRA court erred by not granting him an evidentiary hearing prior to dismissing his Petition. We will address each sub-issue separately.
In his first sub-issue, McCoy contends that his trial counsel should have investigated McCoy's alibi defense, and called "key" alibi and fact witnesses, "if those people exist." Brief for Appellant at 17-18. McCoy argues that, based on the record before it, the PCRA court could not have determined whether trial counsel was ineffective for failing to call potential fact or alibi witnesses, and erred by not conducting an evidentiary hearing on this issue. Id. at 19.
In the Turner/Finley "no merit" letter, PCRA counsel stated that McCoy had not provided any information regarding the identity of any of the "key" witnesses whom trial counsel had allegedly failed to interview and call at trial. Turner/Finley "No Merit" Letter at 12. PCRA counsel further indicated that, although he had requested this information, McCoy never responded to his request. Id.
See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).
Notably, McCoy failed to identify any potential fact or alibi witness in his pro se PCRA Petition, Response to the PCRA court's Pa.R.Crim.P. 907 Notice of its intent to dismiss the Petition, Concise Statement of matters complained of on appeal, or in his appellate brief. See Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (providing that if an appellant is directed to file a concise statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in that statement are waived); Commonwealth v. Dowling , 778 A.2d 683, 686-87 (Pa. Super. 2001) (providing that "[a] Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all.").
In its Opinion, the PCRA court addressed McCoy's first sub-issue, set forth the relevant law, and determined that an evidentiary hearing was unnecessary, as McCoy failed to establish any prong of the standard for determining the ineffectiveness of counsel based on the failure to call a witness at trial. See PCRA Court Opinion, 4/29/16, at 9-10, 14-15. Viewing the record in the light most favorable to the Commonwealth, as the prevailing party at the PCRA level, we agree with the reasoning of the PCRA court, which is supported by the record and is free of legal error, and affirm on this basis as to McCoy's first sub-issue. See id.; see also Jones , 811 A.2d at 1003 n.8 (wherein this Court declined to remand for an evidentiary hearing when the appellant merely asserted that counsel did not have a reasonable basis for his lack of action, but made no proffer of evidence as to counsel's lack of action).
In his second sub-issue, McCoy contends that the prosecutor's remarks in his closing statement were prejudicial and improper, and denied him a fair trial. Brief for Appellant at 19. McCoy claims that "none of these statements were objected to, no move for a mistrial was made, and this was never raised in a post-trial motion." Id. at 20. McCoy contends that the prosecutor's remarks were improper, and that he was prejudiced by them. Id. McCoy asserts that the PCRA court erred by not conducting an evidentiary hearing prior to dismissing his Petition because he "raised not only the claim of prosecutorial misconduct ..., but also his [trial] counsel's failure to raise this matter in post-trial motions or on appeal." Id. at 24.
In the Turner/Finley "no merit" letter, PCRA counsel stated that, although McCoy had failed to identify any improper remark allegedly made by the prosecutor, PCRA counsel had nevertheless undertaken an independent review of the notes of testimony of the prosecutor's closing argument. Turner/Finley "No Merit" Letter at 12. Based on his review, PCRA counsel determined that none of the remarks made by the prosecutor violated McCoy's rights, or caused prejudice to his case. Id. at 13. PCRA counsel further determined that trial counsel was not ineffective for failing to object to the prosecutor's remarks. Id.
In its Opinion, the PCRA court addressed McCoy's second sub-issue, and determined that an evidentiary hearing was unnecessary, as McCoy had failed to identify any improper remark allegedly made by the prosecutor in his closing statement. See PCRA Court Opinion, 4/29/16, at 15. Viewing the record in the light most favorable to the Commonwealth, as the prevailing party at the PCRA level, we agree with the reasoning of the PCRA court, which is supported by the record and is free of legal error, and affirm on this basis as to McCoy's second sub-issue. See id.; see also Pa.R.A.P. 302(a) (providing that issues not raised in the lower court are waived and cannot be raised for the first time on appeal).
McCoy failed to identify any remark made by the prosecutor in his pro se PCRA Petition, Response to the PCRA court's Pa.R.Crim.P. 907 Notice of its intent to dismiss the Petition, or in his Concise Statement of matters complained of on appeal.
Although McCoy, in his appellate brief, points to four specific remarks made by the prosecutor, McCoy's belated efforts are insufficient to overcome his failure to identify the prosecutor's objectionable remarks in the PCRA court. See Pa.R.A.P. 302(a).
In his third sub-issue, McCoy contends that, after sentencing, trial counsel filed an inadequate post-sentence Motion. Brief for Appellant at 25. McCoy asserts that the Motion "does not allege problems in the illegality of sentence, calculation of credit for time served, prosecutorial misconduct, nor does it properly preserve anything other than the discretionary aspect of sentencing for appeal." Id. McCoy claims that his trial counsel should have raised an illegal sentence claim, because McCoy "was sentenced utilizing a factual predicate of serious bodily injury, which was marked by the jury as 'yes.'" Id. at 26. McCoy argues that the PCRA court erred by dismissing his Petition without an evidentiary hearing on his claim that his sentence is unconstitutional under Commonwealth v. Valentine , 101 A.3d 801 (Pa. Super. 2014). Brief for Appellant at 26.
Our review discloses that the jury verdict report included the following question, which the jury answered in the affirmative: "Does the evidence establish, beyond a reasonable doubt, that the defendant's attempt to commit murder caused serious bodily injury to Angel Carrion?" Verdict Report, 9/25/09, at 1 (unnumbered).
In Valentine , this Court held that, in light of Alleyne v. United States , 133 S. Ct. 2151 (2013), and Commonwealth v. Newman , 99 A.3d 86 (Pa. Super. 2014) (en banc), the trial court could not overcome the constitutional infirmity of 42 Pa.C.S.A. §§ 9712 and 9713 by permitting the jury, on the verdict slip, to determine beyond a reasonable doubt whether the appellant possessed a firearm that placed the victim in fear of immediate serious bodily injury in the course of committing a theft for purposes of the mandatory minimum sentencing provisions of section 9712(a), and whether the crime occurred in whole or in part at or near public transportation, for purposes of the mandatory minimum sentencing provisions of section 9713(a). Valentine , 101 A.3d at 811-12.
In the Turner/Finley "no merit" letter, PCRA counsel explained that the sentence imposed was legal because, for each crime, the sentence imposed was less than the statutory maximum, and within the applicable standard guideline range. Turner/Finley "No Merit" Letter at 14. Thus, PCRA counsel concluded that trial counsel was not ineffective for failing to challenge the legality of McCoy's sentence. Id. at 15.
PCRA counsel did not address McCoy's claim that trial counsel was ineffective for failing to raise a challenge concerning credit for time served. However, as McCoy's brief is devoid of any argument on this issue, we deem it abandoned.
In its Opinion, the PCRA court addressed McCoy's third sub-issue, set forth the relevant law, and determined that an evidentiary hearing was unnecessary, as McCoy's sentence was not illegal because it fell within the applicable standard guideline ranges. See PCRA Court Opinion, 4/29/16, at 18-19; see also id. at 19 (wherein the PCRA court further noted that, when sentencing McCoy, the sentencing court had the benefit of a presentence investigation report, and closely considered that report, as well as McCoy's criminal history, the precise circumstances of the case, McCoy's reprehensible and dangerous conduct, his testimony at sentencing, and his personal circumstances). Viewing the record in the light most favorable to the Commonwealth, as the prevailing party at the PCRA level, we agree with the reasoning of the PCRA court, which is supported by the record and is free of legal error, and affirm on this basis as to McCoy's third sub-issue. See id.
Our review of the sentencing Order, as well as the notes of testimony for the sentencing hearing, discloses no indication that the prosecution requested, or that the sentencing court imposed, any mandatory minimum sentence. As such, we must conclude that McCoy's reliance on Valentine is misplaced. Moreover, even if a mandatory minimum sentence had been imposed, it would not be subject to retroactive correction under the auspices of the PCRA. See Commonwealth v. Ciccone , 2016 Pa. Super. LEXIS 756, at *14 (Pa. Super. 2016).
In his second issue, McCoy contends that PCRA counsel was ineffective because he made no effort to communicate with McCoy after sending McCoy an introductory letter. Brief for Appellant at 29. McCoy asserts that PCRA counsel was also ineffective for failing to investigate McCoy's claims. Id. at 29-30.
In its Opinion, the PCRA court addressed McCoy's second issue, set forth the relevant law, and determined that McCoy failed to establish a layered ineffectiveness claim regarding PCRA counsel because all of McCoy's issues lacked merit. See PCRA Court Opinion, 4/29/16, at 20-21. Viewing the record in the light most favorable to the Commonwealth, as the prevailing party at the PCRA level, we agree with the reasoning of the PCRA court, which is supported by the record and is free of legal error, and affirm on this basis as to McCoy's second issue. See id.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/28/2017
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