Opinion
J-S57037-17 No. 645 EDA 2017
11-14-2017
COMMONWEALTH OF PENNSYLVANIA v. ANDRE RAYMELLE WATLEY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order January 27, 2017 in the Court of Common Pleas of Northampton County, Criminal Division, No(s): CP-48-CR-0001039-2014 BEFORE: PANELLA, SOLANO and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Andre Raymelle Watley ("Watley"), pro se, appeals from the Order denying his first Petition for Relief 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 underlying the instant appeal, which we adopt as though fully restated herein. See PCRA Court Opinion, 4/18/17, at 1-6.
In his appellate brief, Watley presents 23 claims for our review:
1. [Whether] [Attorney] Alexander Karam['s] (PCRA counsel) Finley Letter was insufficient as a matter of law when PCRA [c]ounsel failed to (1) detail the nature and extent of his review; (2) list each issue [that Watley] wished to have reviewed; [and] (3) explain in the No[-]Merit Letter why [Watley's] issues are meritless, in relation to Pro Se Issues[?]
2. [Whether the PCRA court] erred in concurring with and accepting [PCRA counsel's] defective Finley Letter, allowing [PCRA counsel] to withdraw[?]
3. [Whether PCRA counsel] was [c]onstitutionally ineffective for failing to present [a] "Sworn Affidavit" made by eye-witness "George J. Groller" [("Groller"),] which [PCRA counsel] failed to submit[,] that raised a question of assurance to [Watley's] actual innocence at [the] evidentiary hearing [on] October 25th, 2016[?]
4. [Whether PCRA counsel] was [c]onstitutionally ineffective for failing to request a continuance to present eye-witness [] Groller to testify[?]
5. [Whether PCRA counsel] was [c]onstitutionally ineffective for failing to submit/forward [Watley's] Pro Se PCRA Petition[,] filed on December 12th, 2016, claiming [that PCRA counsel] was ineffective for abandoning to present [sic] "Sworn Affidavit" and [the] Commonwealth['s] failure to turn over favorable exculpatory information in [Watley's] favor[?]
6. [Whether] [t]he Commonwealth's prosecution team (i.e.[,] the police) used third[-]party hearsay information from [Trooper] Michael Acevedo [("Trooper Avecedo")] to implicate [Watley] in the incident[?]
7. [Whether] [t]he Commonwealth violated [Watley's] [c]onstitutional [r]ights to [d]ue [p]rocess by withholding exculpatory information favorable to [Watley]?
8. [Whether] [t]he Commonwealth's team (i.e.[,] the police) violated [Watley's] [c]onstitutional right[] to [d]ue [p]rocess and [Pa.R.Crim.P.] 573 (Right to Discovery & Inspection)[?]
9. [Whether PCRA counsel] was [c]onstitutionally ineffective for failing to obtain exculpatory information that [the] Commonwealth's prosecution team (i.e.[,] police) withheld from [d] iscovery and [i]nspection that [Watley] requested[,] and requested [PCRA counsel] to retrieve by subpoena[?]
10. [Whether PCRA counsel] was [c]onstitutionally ineffective for failing to assert that [plea counsel was] ineffective for
violating [Watley's] [d]ue [p]rocess [r]ights for fil[l]ing out [Watley's] guilty plea colloquy, failing to provide [Watley] with legal right [sic] to read and understand [the] plea[?]
11. [Whether plea counsel] was [c]onstitutionally ineffective for violating [Watley's] [d]ue [p]rocess [r]ights by filling out [the] written plea colloquy[?]
12. [Whether plea counsel] was [c]onstitutionally ineffective for wrongly inducing [Watley] to plead guilty?
13. [Whether PCRA counsel] was [c]onstitutionally ineffective for failing to assert that [plea counsel was] ineffective for failing to appeal [Watley's] sentence that the on[-]the [-]record colloquy was insufficient to support [the] written colloquy as a matter of [Pa.R.Crim.P.] 590[?]
14. [Whether plea counsel] was [c]onstitutionally ineffective for failing to appeal [Watley's] sentence on direct appeal as requested[?]
15. [Whether plea counsel] was [c]onstitutionally ineffective for failing to file omnibus pre-trial motions to challenge/suppress: (1) the [s]tatute of limitations; (2) [Pa.R.Crim.P.] 600 (180 days); (3) [s]uggestive [i]dentification; (4) [s]ubpoena [e]xculaptory [i]information; [and] (5) [s]uppression of [e]vidence[?]
16. [Whether] [t]he Commonwealth allowed fraud upon the court [by] accepting [plea counsel's] forging [of Watley's] signature on [the] Rule 600 waiver[?]
17. [Whether] [t]he Commonwealth had no jurisdiction to try [Watley] since the [s]tatute of [l]imitation[s] had passed[?]
18. [Whether] [t]he Commonwealth's team (i.e.[,] the police) violated [Watley's] [c]onstitutional rights to [d]ue [p]rocess of [l]aw [by] delaying to inform [him of the] tolling provision having passed for the statute of limitations[?]
19. [Whether] [t]he Commonwealth's prosecution team (i.e.[,] the police) conducted [a] suggestive identification of [Watley]?
20. [Whether plea counsel] was [c]onstitutionally ineffective for failing to investigate [the] case[?]Brief for Appellant at 4-6 (issues renumbered for ease of disposition, footnote added, some emphasis and capitalization omitted).
21. [Whether plea counsel] was [c]onstitutionally ineffective for failing to meet with [Watley] to consult over [the] case and prepare [the] defense[?]
22. [Whether plea counsel] was [c]onstitutionally ineffective for failing to interview [Watley's] alibi witnesses[?]
23. [Whether PCRA counsel] was [c]onstitutionally ineffective for failing to preserve [Watley's] issues[?]
See Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).
We will address Watley's first and second issues together. First, Watley claims that the PCRA court improperly granted PCRA counsel permission to withdraw, where PCRA counsel's Finley letter failed to (a) detail the nature and extent of his review, (b) list each issue Watley wished to have reviewed, and (c) set forth why Watley's pro se issues lack merit. Id. at 16. Watley argues that PCRA counsel's No-Merit Letter was deficient because it failed to include Watley's claim of a violation of Brady v. Maryland , 373 U.S. 83 (1963). Brief for Appellant at 16. Watley further disputes his PCRA counsel's assertion that his guilty plea was knowing and voluntary, because Watley had been "forbidden" to read the plea colloquy, initial each page, and did not fill out the written plea colloquy. Id. Watley also challenges his PCRA counsel's calculations regarding his Pa.R.Crim.P. 600 claim, as well as counsel's conclusion that a statute of limitations challenge lacked merit. Id. at 16-17.
In his second claim, Watley argues that PCRA counsel's Finley letter was defective and therefore, the PCRA court erred in permitting counsel to withdraw. Id. at 17. Watley argues that the PCRA court further erred in not appointing new counsel to represent him, following his claim of PCRA counsel's ineffectiveness. Id. In support, Watley challenges PCRA counsel's conclusion that the claim of a Brady violation was waived, and that Watley's Rule 600 claim lacks merit. Id.
In its Opinion, the PCRA court addressed these first two issues and concluded that they lack merit. See PCRA Court Opinion, 4/18/17, at 6-7 (regarding PCRA counsel's compliance with Finley ), 11-12 (pertaining to Watley's statute of limitations claim), 12 (pertaining to Watley's Brady claim). We agree with the reasoning of the PCRA court, as set forth in its Opinion, and affirm on this basis with regard to Watley's first two claims. See id.; see also Commonwealth v. Barbaro , 94 A.3d 389, 391 n.2 (Pa. Super. 2014) (concluding that the appellant's guilty plea waived any claim of error pursuant to Rule 600).
We will address Watley's challenges related to his written plea colloquy in more detail, infra.
Watley's third, fourth and fifth claims pertain to an affidavit signed by Groller. In his third claim, Watley argues that his PCRA counsel rendered ineffective assistance by failing to present newly discovered evidence, i.e., the affidavit of Groller. Brief for Appellant at 21. In this affidavit, Groller stated that he had witnessed two men enter the victim's home, but did not see Watley enter the home. See PCRA Court Opinion, 4/18/17, at 17-18. In his fourth claim, Watley argues that his PCRA counsel rendered ineffective assistance by not requesting a continuance so that the testimony of Groller could be presented. Brief for Appellant at 24. Watley also argues that his PCRA counsel abandoned him, and was ineffective for not presenting Groller's affidavit. Id. at 25. According to Watley, he should have been afforded new counsel upon PCRA counsel's "abandonment." Id. at 25-26.
Our review of the record discloses that Watley failed to present his claims regarding the Groller affidavit in his pro se PCRA Petition, his amended PCRA Petition, or in his Reply to PCRA counsel's Finley letter. Rather, Watley raised the Groller affidavit, for the first time, in his Concise Statement of matters complained of on appeal. See Statement of Matters, ¶¶ 3-5. Accordingly, these claims are waived. See Commonwealth v. Rose , 2017 Pa. Super. LEXIS 756, *12 (deeming an issue waived where the specific objection was not raised for the first time until it was included in the appellant's Pa.R.A.P. 1925(b) statement).
Even if Watley had preserved his third, fourth and fifth claims, we would conclude that they lack merit, for the reasons stated in the PCRA court's Opinion. See PCRA Court Opinion, 4/18/17, at 15-18.
In his sixth claim of error, Watley asserts that the Commonwealth improperly used third-party hearsay information to implicate him in the crimes. Brief for Appellant at 44. In support, Watley asserts that the police used "hearsay" statements from Randy Hayward ("Hayward"), from a separate incident, to implicate Watley in the instant case. Id. Watley contends that when the police detective investigating his case received this information, he improperly took no further action to interview Hayward, or to obtain a written statement from him. Id. Watley also contends that Hayward's photograph was never presented to the victim for review. Id. at 45. Watley claims that the photograph of him, used for identification by police, should have been excluded as "fruits of the poisonous tree." Id.
It appears that Watley challenges the investigation conducted by the police. This claim is not cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(i)-(vii) (setting forth the cognizable claims under the PCRA). Consequently, we discern no error or abuse of discretion by the PCRA court in denying Watley relief.
Further, "upon entry of a guilty plea, a petitioner waives all defects and defenses except those concerning the validity of the plea, the jurisdiction of the trial court, and the legality of the sentence imposed." Commonwealth v. Pitts , 981 A.2d 875, 886 (Pa. 2009) (citation omitted).
In his seventh, eighth and ninth claims, Watley directs our attention to a report made by the victim to Lehigh County Prison authorities. Watley argues that his plea counsel rendered ineffective assistance by failing to obtain this report. Brief for Appellant at 26-27. According to Watley, the victim reported to prison authorities that two of his attackers were being housed in the Lehigh County Prison unit. Id. at 27. Watley states that he was not incarcerated at the time, "nor did [the victim] know of [] Watley['s] identity." Id. Watley asserts that this report would have shown that he was mistakenly identified by the victim. Id. Watley asserts that his PCRA counsel rendered ineffective assistance by not raising this claim or addressing it in his Finley letter. Id. at 26. In addition, Watley asserts that the Commonwealth's failure to produce this evidence violated the United States Supreme Court's holding in Brady. Id. at 32-33.
In its Opinion, the PCRA court deemed the underlying claim waived:
[Watley] waived this claim by failing to raise it on direct appeal. [42 Pa.C.S.A.] § 9544(b); ( see also N.T., 10/25/[]16, at 30[] (Guilty Plea Counsel noting that [Watley] did not ask him to file an appeal), [Exhibit] CW5 (letter from Guilty Plea Counsel indicating his willingness to file an appeal if requested by [Watley]).)....PCRA Court Opinion, 4/18/17, at 12. We agree with and adopt the sound reasoning of the PCRA court, as set forth above. See id. We additionally note the following.
We additionally note that Watley did not claim PCRA counsel's ineffectiveness, in this regard, in his pro se PCRA Petition, his Amended Petition, or in his Reply to the Finley letter. Thus, it is waived on this basis as well. See Rose , 2017 Pa. Super. LEXIS 756, at *12 (deeming an issue waived where the specific objection was not raised for the first time until it was included in the appellant's Pa.R.A.P. 1925(b) statement).
By entering a guilty plea, Watley waived all non-jurisdictional defects and defenses, including a claim that the Commonwealth had failed to comply with the rules of discovery. See Commonwealth v. Jones , 929 A.2d 205, 212 (Pa. 2007) (stating that a plea of guilty waives all non-jurisdictional defects and defenses). Accordingly, Watley is not entitled to relief on this basis. See id.
In his tenth, eleventh, twelfth and thirteenth claims, Watley asserts ineffectiveness assistance of counsel related to his guilty plea. In his tenth claim, Watley argues that PCRA counsel rendered ineffective assistance by failing to assert that plea counsel violated his due process rights by filling out the written plea colloquy for Watley. Id. at 19. Watley argues that as a result, plea counsel deprived Watley of the opportunity to read and understand the plea and his rights. Id. Watley also includes a claim that plea counsel rendered ineffective assistance by not investigating his claim or meeting with Watley as requested. Id. According to Watley, plea counsel's failure to meet with him resulted in counsel being unaware that Watley wished to withdraw his plea. Id.
In his eleventh claim, Watley again asserts that his plea counsel violated his due process rights by reading the written plea colloquy to him, and not allowing him to have access to it. Id. In his twelfth claim, Watley asserts that his plea counsel wrongly induced him to plead guilty. Id. at 27-28. Watley argues that counsel told Watley that he had no chance to win at trial, and if he went to trial, the judge would impose consecutive sentences. Id. at 28. Watley asserts that his plea counsel thus forced him to plead guilty, and ignored his assertions of innocence. Id.
In his thirteenth claim, Watley argues that his PCRA counsel rendered ineffective assistance by not alleging plea counsel's ineffectiveness for not challenging the on-the-record plea colloquy. Id. at 20. Watley asserts that plea counsel rendered ineffective assistance by not filing a direct appeal claiming that the on-the-record colloquy "was insufficient to support [the] written colloquy as a matter of [Pa.R.Crim.P.] 590." Brief for Appellant at 20.
In its Opinion, the PCRA court addressed Watley's arguments based upon plea counsel's failure to meet with him and investigate the case, and concluded that these arguments lack merit. See PCRA Court Opinion, 4/18/17, at 8-11. We agree with the sound reasoning of the PCRA court, as set forth in its Opinion, and affirm on this basis as to this claim. See id.
Our review further discloses that, in his Pa.R.A.P. 1925(b) Concise Statement, Watley raised no claim that he had been forbidden to read, fill out or initial his guilty plea colloquy. Accordingly, these related claims are waived. See Commonwealth v. Castillo , 888 A.2d 775, 780 (Pa. 2005) (recognizing that the failure to raise claims in a court-ordered Pa.R.A.P. 1925(b) statement will result in waiver of those claims on appeal).
Regarding Watley's claim of ineffective assistance by PCRA counsel for failing to allege plea counsel's ineffectiveness, we note the following. To be eligible for relief based on a claim of ineffective assistance of counsel, the petitioner must demonstrate, by a preponderance of the evidence, that (1) the underlying claim is of arguable merit; (2) no reasonable basis existed for counsel's action or omission; and (3) there is a reasonable probability that the result of the proceeding would have been different absent such error. Commonwealth v. Steele , 961 A.2d 786, 796 (Pa. 2008).
"Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwise." Commonwealth v. Pollard , 832 A.2d 517, 523 (Pa. Super. 2003) (internal citation omitted). "[A] plea of guilty will not be deemed invalid if the circumstances surrounding the entry of the plea disclose that the defendant had a full understanding of the nature and consequences of his plea and that he knowingly and voluntarily decided to enter the plea." Commonwealth v. Reid , 117 A.3d 777, 783 (Pa. Super. 2015) (citation omitted).
"A valid plea colloquy must delve into six areas: 1) the nature of the charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4) the presumption of innocence, 5) the sentencing ranges, and 6) the plea court's power to deviate from any recommended sentence." Commonwealth v. Morrison , 878 A.2d 102, 107 (Pa. Super. 2005); Pa.R.Crim.P. 590, Comment.
During the plea colloquy, the trial court informed Watley of the charges against him, see N.T., 7/1/15, at 2-3; the factual bases for the plea, see id. at 8-10; his right to a jury trial, see id. at 3-4; the presumption of innocence, see id. at 3; the sentencing ranges, see id. at 4- 6; and the court's power to deviate from any recommended sentences, see id. at 8. When the trial court asked Watley whether he had filled out the written plea colloquy form, Watley responded in the affirmative. See id. at 6-7. Watley also informed the court that he fully understood his rights, as set forth in the written colloquy, and was satisfied with his plea counsel's advice to him. Id. at 7. Watley admitted to the facts underlying the charges against him. Id. at 8-10.
As this Court has explained,
a defendant may not challenge his guilty plea by asserting that he lied while under oath, even if he avers that counsel induced the lies. A person who elects to plead guilty is bound by the statements he makes in open court while under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy.
Thus, the record establishes that Watley tendered a knowing, intelligent plea, and that there is no merit to Watley's underlying claim of ineffective assistance of plea counsel. Consequently, we cannot conclude that PCRA counsel rendered ineffective assistance by failing to challenge plea counsel's alleged ineffectiveness in this regard. See Commonwealth v. Reaves , 923 A.2d 1119, 1128 n.10 (Pa. 2007) (concluding that the failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim).
In his fourteenth claim, Watley argues that his plea counsel failed to file a requested direct appeal. Brief for Appellant at 34. Watley asserts that plea counsel violated his constitutional rights by not filing an appeal. Id. at 31-32.
Watley did not raise this claim in his pro se PCRA Petition, the Amended Petition, or his Reply to PCRA counsel's Finley letter. Accordingly, it is waived. See Rose , 2017 Pa. Super. LEXIS 756, at *12 (deeming an issue waived where the specific objection was not raised for the first time until it was included in the appellant's Pa.R.A.P. 1925(b) statement).
In his fifteenth claim of error, Watley argues that his plea counsel rendered ineffective assistance by not filing omnibus pretrial motions to challenge (1) the statute of limitations, (2) the application of Pa.R.Crim.P. 600, and (3) a suggestive identification procedure. Brief for Appellant at 29. Watley further argues that his counsel failed to subpoena exculpatory information. Id. Watley argues that his plea counsel did not act in his best interests when he failed to "Amend and Submit" the omnibus pretrial Motions filed by Watley, pro se, and by abandoning those issues. Id. Watley further argues that his plea counsel improperly failed to challenge the victim's identification of him as one of the perpetrators, as well as the statute of limitations and the violation by the Commonwealth of Rule 600. Id. at 29-30.
In his related, sixteenth through nineteenth claims, Watley again challenges the Commonwealth's violation of Rule 600, its failure to notify Watley of the expiration of the statute of limitations period, and its improper use of a suggestive identification procedure. See id. at 37-41.
In its Opinion, the PCRA court addressed these claims and concluded that they lack merit. See PCRA Court Opinion, 3/18/17, at 11-12 (related to the statute of limitations and the alleged exculpatory evidence), 12-14 (related to the victim's identification of Watley), 14-15 (related to Watley's Rule 600 challenge). We agree with the sound reasoning of the PCRA court and affirm on this basis with regard to these claims. See id.
See Commonwealth v. Jones , 929 A.2d 205, 212 (Pa. 2007) (recognizing that "[a] plea of guilty constitutes a waiver of all nonjurisdictional defects and defenses."). --------
In his twentieth through twenty-second issues, Watley claims that his plea counsel rendered ineffective assistance by not investigating the case, meeting with Watley, and interviewing potential alibi witnesses. Brief for Appellant at 30-31 (claiming the failure to interview witnesses), 42-44 (claiming the failure to consult with Watley and investigate the case).
In its Opinion, the PCRA court addressed these claims and concluded that they lack merit. See PCRA Court Opinion, 3/18/17, at 8-11. The PCRA Court's findings are supported in the record and its legal conclusions are sound. We therefore affirm on the basis of the PCRA court's Opinion with regard to these claims. See id.
Finally, Watley argues that his PCRA counsel rendered ineffective assistance by failing to preserve Watley's claims. Brief for Appellant at 45. According to Watley, counsel was required to discover issues of merit and amend the issues presented in his pro se PCRA Petition. Id. In particular, Watley asserts that PCRA counsel rendered ineffective assistance by not preserving issues related to the legality of his sentence, the withholding of exculpatory information, and plea counsel's representation to the trial court that Watley understood his guilty plea. Id. Watley offers no legal analysis as to each of these assertions. To the extent that Watley's claims are not addressed supra, we conclude that they are waived. See Commonwealth v. Johnson , 985 A.2d 915, 924 (Pa. 2009) (stating that "where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived." (citation omitted)).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/14/2017
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Commonwealth v. Turetsky , 925 A.2d 876, 881 (Pa. Super. 2007) (citations omitted).