Opinion
J-S52015-17 No. 694 MDA 2017
10-12-2017
COMMONWEALTH OF PENNSYLVANIA v. JAKWAN ARCHIE GREEN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order April 10, 2017 in the Court of Common Pleas of Lancaster County, Criminal Division, No(s): CP-36-CR-0005217-2011 BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Jakwan Archie Green ("Green"), pro se, appeals from the Order dismissing his Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court aptly summarized the relevant factual and procedural history in its Opinion, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 4/10/17, at 1-6.
The PCRA court dismissed Green's Amended Petition on April 10, 2017. Green filed a timely Notice of Appeal.
The PCRA court did not order Green to file a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal.
On appeal, Green raises the following questions for our review:
I. [Were] trial counsel[] ineffective for failure to investigate and interview a potential witness[,] which prejudice[d Green's right] to a fair trial?
II. [Were] trial and appella[te] counsel[] deficient in [their] representation for failure to suppress the [Commonwealth] witness['s] statement on grounds of inconsistent statements and hearsay?Brief for Appellant at 5-6 (unnumbered; issues renumbered, some capitalization omitted).
III. [Were] trial counsel[] ineffective for failure to obtain an expert witness to disqualify the [Commonwealth] witness['s] ability to stand trial as a witness, where it was said that this witness suffered from mental disabilities[?]
IV. [Were] trial counsel[] ineffective for failure to raise prosecutorial misconduct, during trial and direct appeal, where the [Commonwealth] knowing[ly] used a [perjured], fabricated statement to gain an arrest and conviction against [Green,] which violated [Green's] "due process rights" and the "due process clause"?
V. [Were] trial counsel[] ineffective for failure to raise and preserve a claim challenging the insufficiency of the evidence pursuant to Pa.R.Crim.P. 606(A)(2)[,] (7)[?]
VI. Was the [j]udgment of sentence illegal, due to the extent that [Green's] conduct "did not" violate "shared intent[,]" [a] basic element required in which [Green] was convicted[,] to sustain a first[-]degree murder and criminal conspiracy [conviction] on the basis of co-conspirator liability in violation of the 14th [A]mendment [] of the United States Constitution[,] and a miscarriage of justice occurred thereto?
VII. Did the [trial court] abuse [its] discretion by rendering a verdict against the weight of the evidence?
VIII. Did the government official[]s of Lancaster County abuse their discretion, violating [Green's] 14th Amendment rights, by committing a misconduct in office[]?
Our standard of review of a PCRA court's [dismissal] of a petition for post[-]conviction relief is well-settled: We must examine whether the record supports the PCRA court's determination, and whether the PCRA court's determination 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. Franklin , 990 A.2d 795, 797 (Pa. Super. 2010) (citation omitted).
Green's first five claims challenge the effectiveness of his trial counsel. The PCRA permits relief when a conviction is the result of "[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.A. § 9543(a)(2)(ii).
It is well-settled that counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves all of the following: (1) the underlying legal claim is of arguable merit; (2) counsel's action or inaction lacked any objectively reasonable basis designed to effectuate his client's interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome if not for counsel's error.Franklin , 990 A.2d at 797 (citations omitted). "A claim of ineffectiveness will be denied if the petitioner's evidence fails to satisfy any one of these prongs." Commonwealth v. Roane , 142 A.3d 79, 88 (Pa. Super. 2016) (citation omitted).
In his first claim, Green argues that his trial counsel were ineffective for failing to investigate and interview Rebecca Hall ("Hall"), the girlfriend of Green's co-defendant, Christopher Lassitter ("Lassitter"), as a potential witness. See Brief for Appellant at 18-22. According to Green, Hall told the police about a conversation between Lassiter and co-defendant Oscar Martinez ("Martinez"), during which Martinez stated that he "want[ed] to kill everybody in the house[,]" and Lassiter responded, "Do what you got to do." Id. at 19. Green contends that Hall's testimony would tend to show that "the gunm[a]n's intentions were his own." Id. at 18.
In its Opinion, the PCRA court set forth the relevant law, addressed Green's claim, and concluded that it lacks merit. See PCRA Court Opinion, 4/10/17, at 17-19. Because we conclude that the PCRA court's determinations are supported by the record and free of legal error, we affirm on this basis as to Green's first claim. See id.
We will address Green's next three issues together, as each one relates to the testimony of Taria Lowden ("Lowden"). In his second claim, Green argues that his trial counsel were ineffective for failing to "suppress" Lowden's statement to police "on the grounds of inconsistent statement and hearsay." Brief for Appellant at 22. Green claims that Lowden's statement, which he believes was false, was obtained through intimidation and coercion by the police. Id. at 22, 23-24. Green asserts that without Lowden's testimony, the Commonwealth could not prove that he was involved in the conspiracy. Id. at 25.
In his third claim, Green avers that his trial counsel were ineffective for failing to retain an expert witness to disqualify Lowden from testifying at trial, due to her "mental disabilities." Id. at 25. Green claims that Lowden was incompetent to testify because she suffers from bi-polar disorder, and because she was intoxicated on the night of the murder. Id. at 26; see also id. (wherein Green argues that an expert could explain that both bi-polar disorder and intoxication can affect memory). Green contends that he was prejudiced because "[i]f[] an expert would have been obtained, [Lowden] ... could have been impeached and eliminated from the record as a credi[ble] witness...." Id. at 27.
In his fourth claim, Green asserts that his trial counsel were ineffective for failing to raise a claim of prosecutorial misconduct, based on the use of purportedly perjured testimony by Lowden. Id. at 29. Green claims that the prosecutor knew that Lowden provided perjured testimony at trial because the prosecutor was aware that Hall had made a statement that contradicted Lowden's testimony. Id. at 30-31. Green argues that he was prejudiced because the trial court would have declared a mistrial if his trial counsel had raised the issue of prosecutorial misconduct. Id. at 31.
In its Opinion, the PCRA court addressed Green's claims regarding Lowden's testimony, and concluded that they lack merit. See PCRA Court Opinion, 4/10/17, at 20-24. Because we conclude that the PCRA court's determinations are supported by the record and free of legal error, we affirm on this basis as to Green's second, third, and fourth claims. See id. As an addendum, we note that Green failed to demonstrate that the outcome of trial would have been different if not for counsel's purported errors. See Franklin , supra ; see also Commonwealth v. Charleston , 94 A.3d 1012, 1026 (Pa. Super. 2014) (stating that "unsupported speculation" does not establish a reasonable probability that the outcome of trial would have been different).
In his fifth claim, Green argues that his trial counsel were ineffective for failing to raise and preserve a challenge to the sufficiency of the evidence. Brief for Appellant at 27. Green claims that he "never harbored a weapon, shared intent, malice or a motive to harm or kill anyone in the victim['s] household." Id. at 28.
In its Opinion, the PCRA court set forth the relevant law, addressed Green's claim, and concluded that it lacks merit. See PCRA Court Opinion, 4/10/17, at 26-32. We adopt the sound reasoning of the PCRA court as to Green's fifth claim. See id.
In his sixth claim, Green argues that his judgment of sentence is illegal because the Commonwealth did not establish that he shared an intent to commit first-degree murder, and therefore, he cannot be guilty of the offense as a co-conspirator. Brief for Appellant at 11-12. Green contends that the evidence presented at trial showed that the crime "revolved around" Lassitter, and a recent attack on the mother of Lassitter's child by "a group of Latin King females." Id. at 15. Green asserts that he did not speak with Lassitter "concerning a plan to commit an unlawful or prohibited act[,] and there is no evidence that can prove or say otherwise." Id. Green concedes that he spoke with the victim's boyfriend (who had allegedly ordered the attack on the mother of Lassitter's child), but argues that he "went to the home to defuse any further problem." Id. Green states that he walked to the victim's door with Martinez, but claims that he had no reason to believe that Martinez intended to commit a criminal act. Id.
Although Green states that his judgment of sentence is illegal, his argument challenges the sufficiency of the evidence supporting his conviction. A challenge to the sufficiency of the evidence is not a cognizable claim under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2); see also Commonwealth v. Price , 876 A.2d 988, 995 (Pa. Super. 2005) (rejecting a sufficiency claim that was raised on PCRA appeal without an ineffective assistance of counsel analysis because it is not cognizable under the PCRA); Commonwealth v. Bell , 706 A.2d 855, 861 (Pa. Super. 1998) (holding that sufficiency claims are not cognizable under the PCRA). Moreover, even if we could consider the merits of Green's claim, we would conclude that the evidence presented at trial was sufficient to support his conviction, based upon the reasons set forth by the PCRA court. See PCRA Court Opinion, 4/10/17, at 26-32. Accordingly, Green is not entitled to relief on this claim.
Even if Green had properly challenged the legality of his sentence, we would conclude that the trial court did not impose an illegal sentence. In fact, Green, who was an adult at the time of the murder, received a mandatory sentence for the crime of first-degree murder. See 18 Pa.C.S.A. § 1102(a)(1).
In his seventh claim, Green contends that the trial court abused its discretion by rendering a verdict against the weight of the evidence. Brief for Appellant at 31. Green argues that the trial court overlooked testimony that would prove that he did not share an intent to commit an unlawful act. Id. at 32-33. Green also challenges the credibility of Lowden's testimony. Id. at 33.
A challenge to the weight of the evidence is not a cognizable claim under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2). Moreover, Green could have raised a challenge to the weight of the evidence on direct review but failed to do so, and therefore, his claim is waived. See 42 Pa.C.S.A. § 9544(b) (providing that, under the PCRA, "an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post[-]conviction proceeding."); see also Commonwealth v. Rush , 838 A.2d 651, 660 (Pa. 2003) (stating that "[a]t the collateral review stage, allegations of trial court error are waived, since they were not raised at the first opportunity for review."). Therefore, Green is not entitled to relief on his seventh claim.
Even if we could consider Green's claim, which asks us to re-weigh the evidence and assess the credibility of the witnesses presented at trial, we would agree with the PCRA court's conclusion that a challenge to the weight of the evidence would be without merit. See PCRA Court Opinion, 4/10/17, at 32-33; see also Commonwealth v. Talbert , 129 A.3d 536, 545 (Pa. Super. 2015) (stating that "[t]he weight of the evidence is exclusively for the finder of fact, who is free to believe all, none or some of the evidence and to determine the credibility of the witnesses." (citation and brackets omitted)). --------
In his eighth claim, Green asserts that government officials in Lancaster County (i.e., the District Attorney and detectives) abused their discretion by pursuing a case against him based on corruption, prejudice and racism. Brief for Appellant at 34-35. Additionally, Green continues his arguments that there was insufficient evidence to support his convictions, and that Hall should have been called as a witness to contradict Lowden's testimony and establish that Green was not part of the conspiracy. Id. at 38-39.
Green's claim does not fall within one of the categories of errors for which the PCRA provides a remedy. See 42 Pa.C.S.A. § 9543(a)(2). Moreover, Green's claim is waived because he could have raised this issue on direct appeal but failed to do so. See 42 Pa.C.S.A. § 9544(b); see also Commonwealth v. Abdul-Salaam , 808 A.2d 558, 560 (Pa. 2001). Thus, Green is not entitled to relief on his final claim.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/12/2017
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