Opinion
J-S46022-15 No. 2357 EDA 2014
10-06-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. ALAN E. KUSHNER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order July 29, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0009814-2008
BEFORE: MUNDY, OLSON and MUSMANNO, JJ.: MEMORANDUM BY OLSON, J.:
Appellant, Alan E. Kushner, appeals from the order entered on July 29, 2014 in the Criminal Division of the Court of Common Pleas of Montgomery County that denied his petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On or around October 30, 2008, the Lower Merion Township Police Department arrested and charged Appellant with criminal attempt - murder (18 Pa.C.S.A. § 901), criminal solicitation to commit murder (18 Pa.C.S.A. § 902), and criminal conspiracy to commit murder (18 Pa.C.S.A. § 903). The charges arose from Appellant's efforts to hire an individual to kill his wife.
A thorough recitation of the historical facts underlying this appeal has been prepared by the PCRA court in its Pa.R.A.P. 1925(a) opinion. See PCRA Court Opinion, 11/14/14, at 1-6.
Appellant retained counsel and proceeded to a jury trial in July 2009. At the conclusion of trial on July 30, 2009, the jury found Appellant guilty of criminal solicitation to commit murder. Thereafter, on October 23, 2009, the trial court sentenced Appellant to serve seven and one-half to 20 years in prison. Appellant filed post-sentence motions, which the trial court denied on March 4, 2010.
Appellant retained new counsel and pursued relief on direct appeal. We affirmed Appellant's judgment of sentence on December 8, 2010 and our Supreme Court denied further review on October 13, 2011.
After exhausting his direct appeal rights, Appellant hired new counsel who filed a petition for collateral relief on October 11, 2012. Appellant amended and supplemented his petition through subsequent filings on October 19, 2012 and January 16, 2013. The PCRA court conducted hearings on March 1st, May 20th, August 26th, and November 12th of 2013 to address the issues raised in Appellant's PCRA petitions. On July 29, 2014, the PCRA court denied Appellant's request for collateral relief. This appeal timely followed.
Both Appellant and the PCRA court have complied with the procedures set forth in Pa.R.A.P. 1925.
On appeal, Appellant claims that the PCRA court erred in dismissing his claims that prior counsel rendered ineffective assistance. To substantiate this contention, Appellant cites 11 acts and omissions that demonstrate subpar performance on the part of trial and direct appeal counsel. See Appellant's Brief at 12-14; Appellant's Concise Statement of Matters Complained of on Appeal, 10/1/14 (listing matters for review as issues (a) through (k)). Appellant's claims merit no relief.
"As a general proposition, [an appellate court] review[s] 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. Trieber , 2015 WL 4886374, *3 (Pa. 2015). In this case, we carefully reviewed the certified record on appeal, the submissions of the parties, and the comprehensive opinion issued by the PCRA court. Based upon our review, we conclude that the record supports the PCRA court's findings of fact and that the court's legal conclusions are free of error. Hence, we affirm the dismissal of Appellant's collateral relief petition for the reasons expressed by the PCRA court and adopt its thorough and accurate determinations as our own. Going forward, the parties are instructed to include a copy of the PCRA court's opinion with all future filings concerning our disposition of the claims in this appeal.
We attach two minor caveats to our adoption of the PCRA court's determinations. First, Appellant's brief to this Court presents issues (i) and (j) as claims alleging that trial and direct appeal counsel (respectively) were ineffective in failing to litigate challenges to the sufficiency of the evidence offered in support of Appellant's conviction. Owing to some confusion in the description of these claims in Appellant's concise statement, the PCRA court addressed issues (i) and (j) as challenges to the weight of the evidence. We adopt the rationale employed by the PCRA court as grounds for our rejection of Appellant's sufficiency challenges. In addition, in discussing issue (k), the PCRA court held, in the alternative, that Appellant was not entitled to relief because his suppression issue was previously litigated on direct appeal. Trial Court Opinion, 11/14/14, at 27. This is technically incorrect, as Appellant raised this challenge under the guise of an ineffective assistance of counsel claim, which would not have been cognizable on direct review. See Commonwealth v. Collins , 888 A.2d 564, 573 (Pa. 2005) (holding that a claim of ineffectiveness of counsel is a discrete legal ground and not merely an alternative theory in support of an underlying issue that was raised on direct appeal). Although we do not adopt this aspect of the PCRA court's reasoning, we agree with its determination that counsel performed effectively since he challenged the trial court's suppression ruling on direct appeal before this Court.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2015
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