Opinion
J-S02033-14 No. 1825 EDA 2013
03-27-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MICHAEL W. LISTER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 29, 2013
in the Court of Common Pleas of Northampton County
Criminal Division at No.: CP-48-CR-0000267-2009
BEFORE: GANTMAN, J., OLSON, J., and PLATT, J. MEMORANDUM BY PLATT, J.
Retired Senior Judge assigned to the Superior Court.
Appellant, Michael W. Lister, appeals from the order dismissing his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
A jury convicted Appellant of murder of the first degree. A previous panel of this Court summarized the factual and procedural history of this case as follows:
The deceased victim, T.R., was the mother of one of Appellant's children. Appellant had threatened T.R. on prior occasions. On October 26, 2006, he armed himself with a semi-automatic pistol in anticipation of T.R.'s arrival at his home with their twelve-year-old son. After their son went inside the house, Appellant and T.R. argued, Appellant pulled out his gun, and he held it to T.R.'s head. T.R. yelled for him to stop, raising her arms in the( Commonwealth v. Lister, No. 3284 EDA 2009, unpublished memorandum at 1-2 (Pa. Super. filed Feb. 16, 2011)). Appellant appealed from his judgment of sentence, challenging the Commonwealth's introduction of certain photographs and images of the victim, and the sufficiency of the evidence to support the verdict. ( See id. at 2). This Court affirmed his judgment of sentence on February 16, 2011. ( See id. at 1). Appellant did not request that his counsel file a petition for allowance of appeal in our Supreme Court. ( See N.T. PCRA Hearing, 1/25/13, at 35; Appellant's Brief at 14). On March 17, 2011, Appellant filed a pro se petition for allowance of appeal, which our Supreme Court denied on October 24, 2011. ( See Commonwealth v. Lister, 31 A.3d 291 (Pa. 2011)).
air. T.R. called out to her son in an attempt to retrieve him and leave. Appellant shot her six times at close range.
Appellant turned himself in to police and confessed, but he insisted that he acted in self-defense because he thought the victim had a weapon. He was charged with homicide generally. [On March 13, 2009, Appellant filed an omnibus pre-trial motion seeking, inter alia, suppression of various statements he made to police officers. The trial court denied the motion on May 28, 2009, following a hearing.] On October 8, 2009, following three days of trial, the jury returned a guilty verdict and he was sentenced to life in prison.
On September 27, 2012, Appellant, acting pro se, filed the instant PCRA petition. The PCRA court appointed counsel, who filed a supplemental petition on January 25, 2013. The PCRA court held a hearing on January 25, 2013, and entered its order and supportin g opinion denying Appellant's PCRA petition on May 29, 2013. This timely appeal followed.
Pursuant to the PCRA court's order, Appellant filed a timely Rule 1925(b) statement of errors on July 2, 2013. The court entered a Rule 1925(a) opinion on July 5, 2013, in which it referred this Court to its previous opinion filed on May 29, 2013. See Pa.R.A.P. 1925.
Appellant raises the following questions for our review:
1. Whether appellate counsel was ineffective in failing to appeal the denial of the suppression motion by the trial court order and opinion dated May 28, 2009?(Appellant's Brief, at 3).
2. Whether trial counsel was ineffective in failing to specifically argue that the initial statement given to the police was not knowing and voluntary and based on police manipulation?
[3.] Whether appellate counsel had a duty to file a petition for allowance of appeal with the Pennsylvania Supreme Court?
[4.] Whether [Appellant's] claim that wearing shackles and handcuffs throughout court proceedings and viewed by a jury created undue prejudice constituting a denial of due process?
Although Appellant raised seven issues in his statement of the questions involved, he abandons three of the issues in the argument section of his brief, conceding that they lack merit. ( See Appellant's Brief, at 3, 11, 13, 17). We will therefore limit our review to the four issues Appellant advances as meritorious. We have re-ordered the remaining issues accordingly.
Given that Appellant's counsel filed a merits brief on behalf of Appellant rather than a "no merit" letter and a petition to withdraw under Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998) (en banc), we fail to see why counsel included issues wherein he argued against his client, and we caution counsel to refrain from such a practice in the future.
Our standard of review for an order denying PCRA relief is well-settled:
This Court's standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record.Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations and quotation marks omitted).
As a preliminary matter, we note that three of Appellant's issues allege ineffective assistance of counsel. To prevail on a petition for PCRA relief on grounds of ineffective assistance of counsel, "a petitioner must plead and prove, by a preponderance of the evidence, that his or her conviction or sentence resulted from . . . ineffectiveness of counsel . . . which so undermined the truth-determining process that no reliable adjudication of g uilt or innocence could have taken place." Commonwealth v. Spotz, 47 A.3d 63, 75-76 (Pa. 2012) (citing 42 Pa.C.S.A § 9543(a)(2)(i) and (ii)) (quotation marks omitted).
It is well-established that counsel 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. . . . [O]ur Supreme Court [has] articulated a three-part test to determine whether an appellant has received ineffective assistance of counsel. Appellant must demonstrate that: (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) Appellant was prejudiced by counsel's act or omission.Commonwealth v. Johnson, 51 A.3d 237, 243 (Pa. Super. 2012) (en banc), appeal denied, 63 A.3d 1245 (Pa. 2013) (citations and quotation marks omitted). In addition, "[an appellant's] failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation omitted).
In his first issue, Appellant argues that appellate counsel was ineffective for failing to raise an issue challenging the trial court's denial of his motion to suppress in the Rule 1925(b) statement or brief counsel filed with this Court on direct appeal. ( See Appellant's Brief, at 8). In support of this argument, Appellant baldly asserts, without explanation, that "[t]he suppression issue had arguable merit . . . [and t]here is a reasonable probability that the erior Court would view the suppression issue in a favorable light." ( Id. ). This argument is waived.
In his one-page argument on this issue, Appellant cites to general, boilerplate law regarding waiver of issues not included in a Rule 1925(b) statement. ( See Appellant's Brief, at 8). However, he does not cite to any legal support regarding the specifics of his claim that counsel was ineffective for failing to pursue the suppression issue on direct appeal, nor does he cite to the record. ( See id. ).
In an appellate brief, parties must provide an argument as to each question, which should include a discussion and citation of pertinent authorities. Pa.R.A.P. 2119(a), 42 Pa.C.S.A. This Court is neither obliged, nor even particularly equipped, toCommonwealth v. B.D.G. , 959 A.2d 362, 371-72 (Pa. Super. 2008) (en banc) (case citations omitted) (finding claim waived for failure to cite to any authority in support of appellant's argument); see also Pa.R.A.P. 2119(a), (b). Therefore, Appellant's first issue is waived.
develop an argument for a party. To do so places the Court in the conflicting roles of advocate and neutral arbiter. When an appellant fails to develop his issue in an argument and fails to cite any legal authority, the issue is waived.
In his second issue, Appellant claims that trial counsel was ineffective for failing to argue that the initial statements Appellant made to police officers after he turned himself in were unknowing and involuntary. ( See Appellant's Brief, at 9-10). He complains that, when he turned himself in to police, the interview began with two officers, the officers removed him from the interview room and then returned him to the room, and the officers asked questions to "pep [him] on to get [him] to talk about what happened." ( Id. at 9 (citing N.T. PCRA Hearing, 1/25/13, at 29)). He asserts that, because "his statement was obtained via manipulation and techniques of the Easton Police[,] . . . pursuant to the totality of the circumstances, the statements should be stri cken." ( Id. at 10). This issue does not merit relief.
The record reflects that trial counsel filed an omnibus pre-trial motion in which he argued that Appellant's statements to police were involuntary and a result of extreme duress. ( See Omnibus Pretrial Motion, 3/13/09, at unnumbered pages 2-3). The trial court, following briefing by the parties and a hearing, determined that there was no basis for suppressing the challenged statements. ( See Trial Court Opinion, 5/28/09, at 6). The court stated:
[I]t is clear that [Appellant] was not under undue pressure at the time he made the statements to Detective [Christopher] Miller and Inspector [Matthew] Gerould. [Appellant] informed Detective Miller upon their initial telephone communication that he wanted to turn himself in to the police. Thereafter, [Appellant] voluntarily proceeded to the police station to speak with Detective Miller. In the interview room, [Appellant] was not restrained in any way, was offered water and was cooperative. [The entire interview of Appellant was audio and video recorded and i]t is . . . clear from the taped interview that the interaction between [Appellant] and the officers was not confrontational and [Appellant] did not appear lethargic or under duress. . . .( Id. at 4-5).
Furthermore, Detective Miller read [Appellant] the Miranda [] warnings and [Appellant] responded affirmatively that he understood. In fact, it is clear from the transcript of the interview that [Appellant] answers affirmatively that he understood his rights and wanted to speak with the police no less than five times. [Appellant] also signed the Miranda Rights and Waiver form in two separate locations, indicating that he both understood his rights and wanted to waive them to speak with the police.
Miranda v. Arizona, 384 U.S. 436 (1966).
Thus, the record demonstrates that the trial court fully considered the circumstances surrounding Appellant's statements to police and expressly determined that his statements were not a result of police coercion. ( See id. ). Appellant's assertion that counsel failed to argue that his statements to police were involuntary lacks merit.
In his third issue, Appellant argues that appellate counsel was ineffective for failing to file a petition for allowance of appeal with our Supreme Court after this Court affirmed his judgment of sentence. ( See Appellant's Brief, at 14-15). Appellant concedes that he did not ask counsel to file a petition for allowance of appeal, but asserts that counsel violated the duty to consult with him regarding an appeal. ( See id. at 14). He acknowledges that he did accomplish review by the Pennsylvania Supreme Court by filing a pro se petition for allowance of appeal, but indicates that he did not draft his pro se petition as effectively as a counseled petition. ( See id. at 15). This issue does not merit relief.
[Our] cases impose a duty on counsel to adequately consult with the defendant as to the advantages and disadvantages of an appeal where there is reason to think that a defendant would want to appeal. The failure to consult may excuse the defendant from the obligation to request an appeal . . . such that counsel could still be found to be ineffective in not filing an appeal even where appellant did not request the appeal.Commonwealth v. Bath, 907 A.2d 619, 623-24 (Pa. Super. 2006), appeal denied, 918 A.2d 741 (Pa. 2007) (citations and quotation marks omitted).
* * *
. . . [C]ounsel has a constitutional duty to consult with a defendant about an appeal where counsel has reason to believe either (1) that a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.
* * *
Where no request [to file a petition for allowance of appeal] has been made, an appellant must establish that a duty to consult was owed. . . . [A]n appellant may establish a duty to consult by indicating issues that had any potential merit for further review. This does not require appellant to demonstrate
that the Supreme Court would likely grant review to a petition for allowance of appeal, but only that appellant must show that any issue rises above frivolity. . . . It [is] incumbent upon [an appellant] to demonstrate to this Court why [appealing issues raised on direct appeal to our Supreme Court would not be] manifestly frivolous. . . .
Here, in an effort to establish that counsel had a duty to consult with him regarding an appeal, Appellant argues that the "suppression issue, the prejudicial impact of the photographs, and a claim that there was insufficient evidence to sustain the conviction of first degree murder are not frivolous." (Appellant's Brief, at 15). However, this Court considered and rejected his challenges to the photographs and the sufficiency of the evidence, ( see Lister, supra at 1-12), and Appellant has not attempted to demonstrate that pursuing further review in our Supreme Court would not be "manifestly frivolous." Bath, supra at 624; ( see also Appellant's Brief, at 14-15). In fact, Appellant has offered no argument whatsoever in support of any of the issues he raised on direct appeal. ( see id. ). Accordingly, we conclude that Appellant has failed to demonstrate that counsel violated a duty to consult with him regarding an appeal. See Bath, supra at 624 (holding that "[appellant] has not met his burden of showing how he was prejudiced by counsel's failure to consult with him regarding a petition for allowance of appeal" where he "offered no argument in support of any of the issues raised on direct appeal"). Appellant's third issue does not merit relief.
In his fourth issue, Appellant claims that he was denied due process because members of the jury saw him wearing shackles and handcuffs throughout the trial court proceedings. ( See Appellant's Brief, at 15). Relying on this Court's decision in Commonwealth v. Keeler, 264 A.2d 407 (Pa. Super. 1970), Appellant argues that his appearance in restraints in front of the jury was inherently prejudicial because it branded him as convicted in the state's eyes. ( See id. at 15-16). This issue does not merit relief.
"[A PCRA] petitioner must plead and prove that an allegation of error has not been waived. 42 Pa.C.S.A. § 9543(a)(3)." Commonwealth v. Price, 876 A.2d 988, 992-93 (Pa. Super. 2005), appeal denied, 897 A.2d 1184 (Pa. 2006), cert. denied, 549 U.S. 902 (2006). "A claim is waived under the PCRA if, inter alia, it could have been raised on direct appeal." Id. at 993 (case citation omitted); see also Commonwealth v. Marshall, 812 A.2d 539, 543-44 (Pa. 2002) (finding appellant's fifteen claims of error that he could have raised on direct appeal waived under the PCRA).
Here, Appellant could have raised his due process challenge relating to his appearance in shackles in front of the jury on direct appeal, but failed to do so. ( See Commonwealth v. Lister, No. 3284 EDA 2009, unpublished memorandum at 1-12 (Pa. Super. filed Feb. 16, 2011)). Accordingly, it is waived. See 42 Pa.C.S.A. § 9543(a)(3); see also Marshall, supra at 543-44; Price, supra at 993.
Moreover, Appellant's allegation that the jury saw him in shackles is supported only by his self-serving testimony at the PCRA hearing that the jury "pretty much" saw him "going in and out of [the] door with shackles on" and that he "had the shackles on through the whole deal." (N.T. PCRA Hearing, 1/25/13, at 39-40). However, trial counsel testified to his recollection that Appellant was not handcuffed or shackled throughout trial proceedings, and explained that such restraint would have been unnecessary because Appellant was cooperative and well-behaved. ( see id. at 15-16). Counsel indicated that, although Appellant was restrained when he was going in and out of the courtroom, Appellant was seated and all restraints were removed before the jury entered the courtroom. ( see id. at 16-17). Counsel further testified that, if the jury had viewed Appellant in handcuffs and shackles, he would have objected. ( see id. at 17). The PCRA court credited counsel's testimony and rejected Appellant's contention as unsupported by the record and contrary to court procedure. ( see PCRA Ct. Op., 5/29/13, at 7). Accordingly, Appellant's final issue is waived and would lack merit.
Based on the foregoing, we discern no error in the PCRA court's denial of PCRA relief. The court's decision is supported by the evidence of record. See Carter, supra at 682. Accordingly, we affirm the order of the PCRA court.
Order affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary