Opinion
J. S06045/19 No. 1349 EDA 2018
09-04-2019
COMMONWEALTH OF PENNSYLVANIA v. ROBERT EDGEFIELD, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order, February 28, 2018, in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0003654-2008 BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Robert Edgefield appeals pro se from the February 28, 2018 order entered by the Court of Common Pleas of Philadelphia County denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court provided the following synopsis of the procedural history of this case:
[Appellant] was charged, inter alia , with murder, generally, kidnapping for ransom, possession of an instrument of crime, generally, abuse of corpse, and criminal conspiracy. These charges arose out of an incident during which [appellant], together with other persons, murdered Juan Carlos Rosa.
[Appellant] and his three co-defendants, Amira Mohamed, Jason Edwards, and Darnell Thomas, were tried before [the trial court] and a jury in May and June of 2011.[Footnote 1] At the
conclusion of the trial, the jury found [appellant] guilty of first-degree murder and the other charges listed above. On [] June 17, 2011, [the trial court] sentenced [appellant] to life [imprisonment] without parole on the first-degree murder charge, ten to twenty years on the criminal conspiracy charge, ten to twenty years on the kidnapping charge, two-and-one half to five years on the possession of an instrument of crime charge, and one to two years on the abuse of corpse charge. These sentences were ordered to be served concurrently.
[Footnote 1] [Appellant], a/k/a Boz, was found guilty of first-degree murder and the other charges. Mr. Edwards, a/k/a J-Rock, was found not guilty on all charges. Ms. Mohamed was found not guilty on the charge of abuse of corpse. The jury could not reach a verdict on the other charges and a mistrial was granted.
Following the imposition of sentencing, [appellant] filed a notice of appeal to the Superior Court. On April 3, 2013, the Superior Court affirmed the judgment of sentence. Commonwealth v. Edgefield , 75 A.3d 541 (Pa.Super. 2013) ([unpublished memorandum]). [Appellant] thereafter sought further review in the Pennsylvania Supreme Court, which on August 25, 2015, denied [appellant's] petition for allowance of appeal. Commonwealth v. Edgefield , 125 A.3d 775 (Pa.[] 2015)[].
On August 12, 2016, [appellant] filed a pro se petition pursuant to the [PCRA]. He thereafter filed numerous pro se supplemental petitions raising additional issues. Counsel was appointed to represent him and on November 13, 2017, counsel filed a "no merit" letter in accordance with the Superior Court's decision in Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988), and a motion to withdraw as counsel. [The PCRA court] carefully reviewed the entire record and upon determining that [appellant] was not entitled to relief, it sent [appellant a] Pa.R.Crim.P. 907 notice of intent to dismiss. On
February 27, 2018, [the PCRA court], having again reviewed the entire record, issued an order dismissing [appellant's] PCRA petition and granting appointed counsel's motion to withdraw. Subsequent thereto, [appellant] filed a timely notice of appeal.PCRA court opinion, 4/16/18 at 1-2 (footnote 2 and extraneous capitalization omitted).
The PCRA court did not order appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 16, 2018, the PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
I. Whether PCRA counsel, James Lammendola, Esq., rendered ineffective assistance and inadequate representation to appellant in his PCRA proceedings, violating the rule-based right to counsel at this stage of appellant's appellate proceedings?Appellant's brief at iii (full capitalization omitted; issues re-ordered for ease of discussion).
[II.] Whether appellant was denied meaningful appellate review by PCRA counsel and [the] PCRA court in the clearly inappropriate filing of the "no-merit" letter and the adoption (aping) of that filing by [the] PCRA court, in violation of state and federal constitutional holdings?
[III.] Whether [the] PCRA court violated clearly[] existing precedent in denying his petition in the absence of evidentiary proceedings absent valid grounds existing in the record and/or existing legal precedent?
[IV.] Whether [the] PCRA court erred as a matter of law in not allowing appellant to amend his PCRA petition to correct any alleged deficiencies pursuant to Rule 905, Pa.R.Crim.Proc.?
PCRA petitions are subject to the following standard of review:
"[A]s a general proposition, we review a denial of PCRA relief to determine whether the findings of the PCRA court are supported by the record and free of legal error." Commonwealth v. Dennis , [] 17 A.3d 297, 301 ([Pa.] 2011) (citation omitted). A PCRA court's credibility findings are to be accorded great deference, and where supported by the record, such determinations are binding on a reviewing court. Id. at 305 (citations omitted). To obtain PCRA relief, appellant must plead and prove by a preponderance of the evidence: (1) his conviction or sentence resulted from one or more of the errors enumerated in 42 Pa.C.S.[A.] § 9543(a)(2); (2) his claims have not been previously litigated or waived, id., § 9543(a)(3); and (3) "the failure to litigate the issue prior to or during trial . . . or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel[,]" id., § 9543(a)(4). An issue is previously litigated if "the highest appellate court in which [appellant] could have had the review as a matter of right has ruled on the merits of the issue[.]" Id., § 5944(a)(2). "[A]n issue is waived if [appellant] could have raised it but failed to do so before trial, at trial, . . . on appeal or in a prior state postconviction proceeding." Id., § 9544(b).Commonwealth v. Treiber , 121 A.3d 435, 444 (Pa. 2015).
In his first two issues on appeal, appellant alleges ineffective assistance on the part of his PCRA counsel, James Lammendola, Esq. When considering whether counsel was ineffective, we are governed by the following standard:
[C]ounsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and
that such deficiency prejudiced him. Strickland v. Washington , 466 U.S. 668 [] (1984). [Our supreme court] has described the Strickland standard as tripartite by dividing the performance element into two distinct components. Commonwealth v. Pierce , [] 527 A.2d 973, 975 ([Pa.] 1987). Accordingly, to prove counsel ineffective, the petitioner must demonstrate that: (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) the petitioner was prejudiced by counsel's act or omission. Id. A claim of ineffectiveness will be denied if the petitioner's evidence fails to satisfy any one of these prongs.
Commonwealth v. Perzel , 116 A.3d 670, 671-672 (Pa.Super. 2015), order vacated on other grounds , 166 A.3d 1213 (Pa. 2017).
Commonwealth v. Busanet , [] 54 A.3d 34, 45 ([Pa.] 2012) (citations formatted). Furthermore, "[i]n accord with these well-established criteria for review, [an appellant] must set forth and individually discuss substantively each prong of the [ Pierce ] test." Commonwealth v. Fitzgerald , 979 A.2d 908, 910 (Pa.Super. 2009).
Here, appellant raises an ineffectiveness claim pertaining to his PCRA counsel. In order to preserve this claim on appeal, appellant is required to raise it in his response to the PCRA court's Rule 907 notice, which represents appellant's first opportunity to raise the issue before the PCRA court. Commonwealth v. Rykard , 55 A.3d 1177, 1186 (Pa.Super. 2012), appeal denied , 64 A.3d 631 (Pa. 2013), citing Commonwealth v. Pitts , 981 A.2d 875, 880 n.4 (Pa. 2009). Here, appellant raises his ineffectiveness claim pertaining to his PCRA counsel in his Rule 907 response; therefore, we will review appellant's claim on its merits.
Appellant specifically argues that Attorney Lammendola abdicated his duty to provide appellant with effective representation, and instead "sought to seek dismissal of [a]ppellant's PCRA petition absent evidentiary hearing, falsely asserting his ineffective claims as lacking merit and seeking withdrawl [sic] from [a]ppellant's case. (Appellant's brief at 3.) Appellant takes issue with the fact that Attorney Lammendola filed a Turner/Finley no-merit letter, which appellant avers is a violation of both the PCRA and the Pennsylvania Constitution. ( Id.) In particular, appellant avers that by filing a Turner/Finley letter, Attorney Lammendola is improperly determining the merits of a claim—a "function that lies solely with the [Pennsylvania] Supreme Court." ( Id.)
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) ( en banc ).
Appellant's claim is without arguable merit. The process for PCRA counsel to withdraw from a case after he or she determines that a PCRA petitioner's claim is without merit is well settled. See Turner , supra ; Finley , supra ; Commonwealth v. Muzzy , 141 A.3d 509, 510 (Pa.Super. 2016) (reiterating the process by which a PCRA attorney may petition for withdrawal upon reaching a conclusion that a petitioner's case lacks merit). We agree with the PCRA court's finding that Attorney Lammendola complied with the procedural requirements of Turner/Finley. ( See PCRA court opinion, 4/16/18 at 27-28.) Therefore, appellant's first two issues are without merit.
In his third issue on appeal, appellant argues that the PCRA court erred when it failed to hold an evidentiary hearing to evaluate claims raised by appellant. (Appellant's brief at 7.) When determining whether the PCRA court erred when it dismisses a PCRA petition without a hearing, we are held to the following standard:
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 defendant 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) (quoting Pa.R.Crim.P. 909(B)(2)). "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." Id. (quoting Commonwealth v. D'Amato , [] 856 A.2d 806, 820 [Pa.] 2004)). We stress that 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 Jones , we 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.Commonwealth v. Roney , 79 A.3d 595, 640-605 (Pa. 2013), cert. denied sub nom. Roney v. Pennsylvania , 135 S.Ct. 56 (2014).
Here, appellant contends as follows:
First, the evidence against [a]ppellant in his convictions lacked any "overwhelming" quantity and was solely based on individual(s) [sic] testimony and no forensic or expert evidence of guilt existed. Secondly, by this assertion of PCRA counsel, it is clearly demonstrated that he was exceeding his duty of appointment and failing to act effectively in [sic] behalf of [a]ppellant, but, acting as sole jurist and fact-finder and adjudicating [a]ppellant's claims rather than preparing or presenting them for the PCRA court to review.Appellant's brief at 8.
Appellant attacks both the sufficiency and weight of the evidence presented by the Commonwealth at trial. Those issues, however, have already been litigated, as sufficiency and weight of the evidence were issues considered by this court on direct review. See Edgefield , 75 A.3d 541; 42 Pa.C.S.A. § 9544(a)(2). Appellant also further raises the issue of Attorney Lammendola's performance on collateral review, which has been addressed, supra. Accordingly, appellant's third issue is without merit.
In his fourth issue, appellant avers that the PCRA court erred when it did not permit him to amend his PCRA petition after issuing a Rule 907 notice of dismissal, which appellant claims is in violation of Pa.R.Crim.P. 905. Rule 905 provides, in relevant part:
(A) The judge may grant leave to amend or withdraw a petition for post-conviction collateral relief at any time. Amendment shall be freely allowed to achieve substantial justice.Pa.R.Crim.P. 905(A). Our supreme court has stated that the purpose of Rule 905 is "to provide PCRA petitioners with a legitimate opportunity to present their claims to the PCRA court in a manner sufficient to avoid dismissal due to a correctable defect in claim pleading or presentation." Commonwealth v. McGill , 832 A.2d 1014, 1024 (Pa. 2003), citing Commonwealth v. Williams , 782 A.2d 517, 526-527 (Pa. 2001). "Adherence to this liberal standard for amendment is essential because criminal defendants may have just one opportunity to pursue collateral relief in state court." Commonwealth v. Crispell , 193 A.3d 919, 930 (Pa. 2018), citing Commonwealth v. Flanagan , 854 A.2d 489, 499-500 (Pa. 2004), reargument denied , 861 A.2d 254 (Pa. 2004). The Flanagan court further found that it is left to the discretion of the PCRA courts to permit a petition to amend a PCRA petition. Flanagan , 854 A.2d at 500.
Appellant's entire argument pertaining to Rule 905 is as follows:
[T]he [PCRA] court was to have allowed for amendment by [a]ppellant to grant him opportunity to correct those claims or present possibly existing other claims which may comport with the PCRA and contain merit. Also, it would have allowed for [a]ppellant to either strengthen those claims presented to the degree of them containing merit and, ipso facto, being reviewable and warranting an evidentiary hearing for opportunity to prove the claim and entitlement to relief.Appellant's brief at 15 (emphasis omitted).
Rule 905 [] requires and allows for a PCRA court to grant a petitioner the opportunity to amend his claims to achieve justice. Surely, this action would have allowed [a]ppellant the attempt to have his PCRA petition kept alive in the court for meaningful review of his claims, and, to prevent dismissal absent hearing and, also, the herein appeal.
A liberal reading of Rule 905, however, cannot permit a petitioner to seek leave to amend his or her PCRA petition in perpetuity any time he or she is faced with a Rule 907 notice of dismissal, as appellant is attempting to do here. Indeed, the record reflects that appellant filed three pro se amendments to his original pro se PCRA petition between August 12, 2016 and August 30, 2017. Therefore, we find that the PCRA court did not abuse its discretion when it refused to grant appellant leave to file a fourth amendment to his PCRA petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/4/19