Opinion
207 WDA 2020 J-A25042-21
04-08-2022
COMMONWEALTH OF PENNSYLVANIA v. JOSHUA JEROME WALKER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered January 13, 2020 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000691-2015
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J. [*]
MEMORANDUM
COLINS, J.
Appellant, Joshua Jerome Walker, appeals from the order of the Court of Common Pleas of Erie County (trial court) that dismissed his first petition filed under the Post Conviction Relief Act ("PCRA") without a hearing. For the reasons set forth below, we affirm as to all but one of the issues raised by Appellant, vacate the dismissal of one of Appellant's PCRA claims, and remand the case to the trial court for further proceedings on that claim.
On October 6, 2014, Appellant was charged with criminal homicide, aggravated assault, robbery, theft, and possession of an instrument of crime in connection with the killing of David McLendon (Victim) on August 6, 2014. These charges were tried to a jury from May 23, 2016, to May 27, 2016.
At trial, the Commonwealth's evidence showed that Victim was found dead at Delaware and Ottawa Avenues in Erie, Pennsylvania shortly before 6:00 a.m. on August 6, 2014 with his head and upper body covered in blood. N.T., 5/23/16, at 114-15, 118-21, 126; N.T., 5/24/16, at 6-8. The forensic pathologist who performed the autopsy on Victim testified that Victim had suffered 31 head wounds and opined that Victim was killed by blunt force trauma to the head. N.T., 5/25/16, at 196-97, 201-18. The pathologist did not make any determination of the time of death. N.T., 5/25/16, at 228-30.
Pamela Lutz, who lived in the 1000 block of Delaware Avenue, near the Delaware and Ottawa intersection, testified that between 1:00 a.m. and 1:30 a.m. on August 6, she heard loud voices that sounded like two men yelling and arguing or fighting. N.T., 5/24/16, at 67-73, 93-95, 103, 105-06. Lutz testified that she then walked to the front of her house and looked out the window and that a few minutes later, she saw a silhouette of what appeared to be a man moving around hunched over like he was looking for something, and then getting into an SUV and driving away very quickly heading north. Id. at 73-78, 90-91, 95-105. A surveillance camera on the next block of Delaware Avenue on the north side of Ottawa Avenue showed a Chevrolet Trailblazer SUV driving by northbound at 1:03 a.m. that morning and no other SUV driving north at any time between 12:20 a.m. and 2:20 a.m. N.T., 5/24/16, at 107-11, 114-17; N.T., 5/25/16, at 99-100; N.T., 5/26/16, at 67-72.
The Commonwealth's evidence also showed that Appellant was with Victim on the night of August 5 to 6, 2014 and was driving his then-girlfriend Shawneah Parraway's Chevrolet Trailblazer SUV that night. N.T., 5/24/16, at 184-95; N.T., 5/25/16, at 14-16, 47-50; N.T., 5/26/16, at 39-41. Appellant and Victim went to several bars and left the last of these bars, the Knotty Pine, together in Parraway's SUV between 12:00 a.m. and 12:30 a.m. N.T., 5/24/16, at 189-92; N.T., 5/25/16, at 14-16, 28, 47-50, 52-56; N.T., 5/26/16, at 39-42. Appellant, who was living with Parraway at the time, did not return to Parraway's apartment until around 3:00 a.m. and when he arrived there, he was wearing different clothes than he had been wearing when he had left on August 5. N.T., 5/24/16, at 174-75, 195-99, 201-02.
When Parraway drove her SUV to take her daughter to daycare around 8:00 a.m. on August 6, she saw a red substance on the passenger side window that she thought was ketchup. N.T., 5/24/16, at 211-13, 260-61. Parraway got angry at Appellant for bringing her vehicle home dirty and told him to clean it up and Appellant took the SUV to a car wash that morning. Id. at 214-17, 262-63. Later that day, the police asked Parraway if they could examine the SUV and she consented. N.T., 5/24/16, at 226-27. In this examination, the police found spots on the back of the driver's seat, the floor mat in front of the driver's seat, and the rear passenger seat of the SUV that tested positive for blood. N.T., 5/24/16, at 130-36, 141-51, 153-58; N.T., 5/26/16, at 12, 15. DNA testing of samples from those spots showed the presence of Victim's DNA. N.T., 5/25/16, at 166-68, 174-75.
At the close of the Commonwealth's case, the trial court dismissed the robbery and theft charges. N.T., 5/26/16, at 140-44. Appellant testified in his own defense and denied that he killed Victim. Id. at 188. Appellant testified that after he and Victim left the Knotty Pine, they went to another bar and that he dropped Victim off at Vulcan Street, rather than at Victim's home because Victim said that he had to meet someone. Id. at 169-70, 173-77. Appellant testified that after he dropped Victim off, he went with a woman to his cousin Ja'Rell Fleming's house and that he changed his clothes because he didn't want to smell of perfume from having sex with the woman when he came home to Parraway. Id. at 177-80, 204-06, 220-22. Appellant also called as a witness a friend who testified that Victim sometimes drove Parraway's SUV when he was with Appellant and that on one of those occasions, Victim had a cut on his hand from a broken bottle thrown in a fight. Id. at 149-51.
The trial court instructed the jury on both first-degree murder and third-degree murder with respect to the criminal homicide charge and on the offenses of aggravated assault and possession of an instrument of crime. N.T., 5/27/16, at 57-62. On May 27, 2016, the jury convicted Appellant of third-degree murder and aggravated assault and acquitted him of possession of an instrument of crime. Id. at 87-89. On August 24, 2016, the trial court sentenced Appellant to 20 to 40 years' imprisonment for the third-degree murder conviction and imposed no penalty for the aggravated assault conviction because it merged with the third-degree murder conviction. Sentencing Order.
Appellant timely appealed and raised two issues in that appeal, whether the trial court erred in failing to instruct the jury on voluntary manslaughter and whether it had erred in permitting the prosecutor to argue that money was a motive for the murder. Commonwealth v. Walker, No. 1425 WDA 2016, at 2 (Pa. Super. September 18, 2017) (unpublished memorandum). On September 18, 2017, this Court affirmed Appellant's judgment of sentence on the ground that both of these issues were waived because Appellant did not object to the failure to instruct the jury on voluntary manslaughter or object to the Commonwealth's closing argument. Id. at 2-3. Appellant did not file a petition for allowance of appeal to the Pennsylvania Supreme Court.
On October 12, 2018, Appellant filed a timely pro se first PCRA petition, in which he asserted 24 grounds for relief. The trial court appointed PCRA counsel for Appellant and granted PCRA counsel leave to file a supplemental PCRA petition. On February 6, 2019, PCRA counsel filed a document entitled as a "Supplement" to Appellant's pro se PCRA petition in which he incorporated by reference Appellant's pro se PCRA petition and also set forth additional argument that related to only some of the grounds for relief listed in the pro se petition.
On December 20, 2019, the trial court issued a notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss this PCRA petition without a hearing.In this Rule 907 notice, the trial court opined that all claims other than three claims that it concluded were specifically discussed in PCRA counsel's supplemental PCRA petition were waived. Rule 907 Notice at 2-3. The trial court, however, not only discussed those three issues and held that they did not state meritorious claims for PCRA relief, id. at 3-11, but also set forth the reasons that it considered all of Appellant's other claims for PCRA relief to be without merit. Id. at 11-31. Appellant's PCRA counsel filed no response to the Rule 907 notice and the trial court entered an order on January 13, 2020 dismissing Appellant's PCRA petition. This timely appeal followed.
Prior to the Rule 907 notice, the trial court judge who presided over Appellant's trial had retired from the bench and the Rule 907 notice and subsequent order dismissing Appellant's PCRA petition were issued by a different trial court judge.
Following the issuance of the dismissal order, the trial court received a pro se request from Appellant for additional time to respond to the Rule 907 notice and a motion to vacate the dismissal order. The trial court forwarded the motion to vacate the dismissal order to Appellant's PCRA counsel and did not act on it.
In his brief in this appeal, Appellant lists 17 claims of error. Appellant's Brief at 1-3. The trial court held and the Commonwealth argues that all but the first three of these issues are waived because they were allegedly not asserted in Appellant's counseled Supplement to PCRA Petition. Rule 907 Notice at 2-3; Trial Court Opinion, 11/4/20 at 2, 4; Appellee's Brief at 5. We agree that those issues that PCRA counsel merely incorporated by reference that are unrelated to counsel's discussion and legal argument in his supplemental PCRA petition are waived.
PCRA counsel must make a determination of what claims are worth pursuing when he files a supplemental or amended PCRA petition and incorporation by reference that merely passes pro se PCRA claims on for the court's consideration without any explanation or elaboration by counsel violates the prohibition on hybrid representation. Commonwealth v. Johnson, 179 A.3d 1153, 1157 (Pa. Super. 2018). Accordingly, where PCRA counsel files a supplemental or amended PCRA petition that asserts some claims and also incorporates by reference his client's pro se PCRA petition, counsel's incorporation of the pro se PCRA petition is insufficient to preserve for review the claims that counsel does not discuss. Id. That is what PCRA counsel did here. Counsel referred to Appellant's pro se PCRA petition, stated that the pro se PCRA petition "is hereby incorporated by reference," and stated that he "deemed that [Appellant] has sufficiently articulated the respective claims for purposes of evaluation and adjudication by the Court." Supplement to PCRA Petition at 1. Counsel then presented argument concerning three areas encompassing some of the claims raised in Appellant's pro se PCRA petition "in supplementation of the pro se pleading." Id. at 1-3.
We do not agree, however, that counsel's legal argument and discussion in his supplemental PCRA petition was limited to only three of Appellant's issues in this appeal. Counsel discussed and asserted ineffective assistance with respect to three subjects, failure to object to use at trial of evidence that supported the robbery charge, failure to request a jury instruction on voluntary manslaughter, and failure to present an alibi defense. Supplement to PCRA Petition at 1-3. Appellant's Issues 1 and 14 both relate to failure to object to use at trial of evidence that supported the robbery charge, the first issue discussed in the counseled PCRA petition. Issue 2 is the second issue discussed by counsel in the Supplement to PCRA Petition and both Issue 3 and Issue 13 are claims of ineffectiveness of counsel with respect to alibi witnesses encompassed by the third subject discussed by counsel in the Supplement to PCRA Petition. We therefore conclude that these five issues, all of which were also specifically raised in Appellant's pro se PCRA petition, were sufficiently preserved by PCRA counsel and address them on the merits.
Both the trial court and the Commonwealth also assert that Appellant's Issues 1 and 2 cannot be grounds for PCRA relief because they were previously litigated on direct appeal. Rule 907 Notice at 4-5; Trial Court Opinion, 11/4/20 at 2 n.4, 4; Appellee's Brief at 5-6. This contention is without merit. Section 9543(a) of the PCRA bars a claim as previously litigated only where "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue" or "it has been raised and decided in a proceeding collaterally attacking the conviction or sentence." 42 Pa.C.S. §§ 9543(a), 9544(a). Here, as discussed above, there was no ruling on merits on any issue in Appellant's direct appeal and there has been no proceeding challenging Appellant's conviction or sentence other than the instant PCRA proceeding.
We review the dismissal of a PCRA petition to determine whether the court's decision is supported by the record and free of legal error. Commonwealth v. Staton, 120 A.3d 277, 283 (Pa. 2015); Commonwealth v. Grayson, 212 A.3d 1047, 1051 (Pa. Super. 2019); Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012). Appellant's five unwaived issues all assert claims of ineffective assistance of counsel. To be entitled to relief under the PCRA on a claim of ineffective assistance of counsel, the defendant must prove: (1) that the underlying claim is of arguable merit; (2) that counsel's action or inaction had no reasonable basis designed to effectuate his client's interest; and (3) that he suffered prejudice as a result of counsel's action or inaction. Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015); Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa. Super. 2020); Wah, 42 A.3d at 338. The defendant must satisfy all three prongs of this test to obtain relief under the PCRA. Mason, 130 A.3d at 618; Selenski, 228 A.3d at 15.
In Issues 1 and 14, Appellant asserts that "[trial] counsel was ineffective in failing to object to the introduction of evidence in support of the robbery charge" and that "[trial] counsel was ineffective in failing to object to the Commonwealth's statements in closing argument in reference to a motive with direct allusion to a robbery … [or] seek a cautionary instruction or demand a mistrial." Appellant's Brief at 1, 3. These claims fail because Appellant cannot show that the actions that counsel failed to take had arguable merit and that he suffered prejudice.
The evidence in question was that Appellant needed money, that Victim carried substantial amounts of cash with him, and that Appellant retrieved $300 from a closet in Parraway's apartment and gave it to her after he returned to her apartment around 3:00 a.m. N.T., 5/24/16, at 180-81, 190-91, 206-08; N.T., 5/25/16, at 45-47. The Commonwealth's only reference to this subject in its closing was that this evidence showed that Appellant had a financial motive to kill Victim. N.T., 5/27/16, at 33-34. Evidence and argument that Appellant had a motive to kill Victim were relevant and admissible on the issue of whether he killed Victim, independent of any robbery or theft charge. Commonwealth v. Philistin, 53 A.3d 1, 16 (Pa. 2012) ("Evidence to prove motive is generally admissible."). Moreover, the verdict shows that this evidence did not cause the jury to be prejudiced or biased against Appellant, as the jury rejected the more serious first-degree murder charge that the Commonwealth contended that this evidence supported and convicted Appellant only of third-degree murder.
In Issue 2, Appellant asserts that "[trial] counsel was ineffective in failing to seek a jury charge of voluntary manslaughter." Appellant's Brief at 1-2. This claim fails because Appellant was not entitled to a voluntary manslaughter instruction and Appellant therefore cannot show that the underlying claims that counsel failed to assert had arguable merit. "There is no ineffectiveness of counsel for failing to request an unwarranted instruction." Commonwealth v. Ragan, 743 A.2d 390, 397 (Pa. 1999).
The killing of another person can constitute voluntary manslaughter where the defendant acted "under a sudden and intense passion resulting from serious provocation" or based on an unreasonable belief that deadly force was necessary to protect himself. 18 Pa.C.S. § 2503; Commonwealth v. Sanchez, 82 A.3d 943, 979 (Pa. 2013) A defendant in a homicide case is therefore entitled to an instruction on voluntary manslaughter only where there is evidence from which a jury could find that the defendant acted either in response to serious provocation or in unreasonable self-defense. Sanchez, 82 A.3d at 979-80; Ragan, 743 A.2d at 396-97. Indeed, a voluntary manslaughter instruction is not warranted where the defendant denies that he was the person who committed the killing. Sanchez, 82 A.3d at 980.
Here, there was no evidence whatsoever that the killing was in response to a provocation by Victim or a perceived attack or threat by Victim. While there was evidence from Lutz's testimony of an argument or fight at the time of the killing, there was no evidence that anything was said or done by Victim to provoke his killer or put his killer in fear of his life. Lutz testified that she could only hear that the voices were loud and angry and could not hear what was being said and Lutz did not see any interaction between the male figure that she saw and anyone else. N.T., 5/24/16, at 68-78, 90-91, 93-99, 103, 105. Moreover, Appellant denied that he killed Victim. N.T., 5/26/16, at 188.
Issues 3 and 13 concern trial counsel's failure to call two alibi witnesses, Lillie Freeman, the woman with whom Appellant claimed that he had a romantic encounter, and his cousin Ja'Rell Fleming, both of whom Appellant testified that he was with after he dropped Victim off. Appellant's Brief at 2-3, 16-18, 28-29; N.T., 5/26/16, at 177-78, 204-07, 220-21. Failure to call a witness can constitute ineffective assistance of counsel only where the defendant shows that the witness existed, was available, and was willing to testify on the defendant's behalf; that trial counsel knew or should have known of witness's existence; and that the absence of the witness's testimony prejudiced the defendant. Commonwealth v. Sneed, 45 A.3d 1096, 1108- 09 (Pa. 2012); Commonwealth v. Orner, 251 A.3d 819, 825 (Pa. Super. 2021) (en banc); Selenski, 228 A.3d at 16. Counsel is not ineffective for failure to call a witness where counsel made a decision not to call the witness based on a reasonable strategic judgment. Commonwealth v. Ervin, 766 A.2d 859, 866 (Pa. Super. 2000).
The trial court held that it could be determined from the existing record without a hearing that Appellant could not show that trial counsel's failure to call these witnesses constituted ineffective assistance of counsel. Rule 907 Notice at 1, 8-11, 22-24; Trial Court Opinion, 11/4/20 at 4. With respect to Freeman, the trial court held that two statements by counsel at trial showed that counsel made a reasonable strategic judgment not to call her as a witness. Rule 907 Notice at 8-11; Trial Court Opinion, 11/4/20 at 4. With respect to Fleming, the trial court concluded that Appellant's trial testimony established that Fleming was not available and wiling to testify at trial. Rule 907 Notice at 22-24; Trial Court Opinion, 11/4/20 at 4.
We agree that the trial court's conclusion with respect to Fleming is supported by the record. Appellant testified at trial that Fleming was not available and that he would not come in to testify. N.T., 5/26/16, at 223. Appellant did not allege in his PCRA petition that he could show that Fleming was willing to testify at his trial. Indeed, Appellant did not even list Fleming as a witness in his PCRA Petition. PCRA Petition at 7.
We do not agree, however, that the record precludes Appellant from showing that trial counsel lacked a reasonable basis for his decision not to call Freeman. Before the defense began presenting its case, trial counsel made the following statement at sidebar concerning Freeman:
There was another witness that we had discussed. I finally had the opportunity to speak with that witness today during the lunch break, Your Honor. I do not feel comfortable using that witness on my client's behalf. I don't believe that I can professionally call that witness as a witness for reasons I really don't want to elaborate on, Judge. I just don't believe that to be a viable option for my client at this point, and I made that decision not to do so.N.T., 5/26/16, at 144. During the Commonwealth's cross-examination of Appellant, when he identified the woman that he was with, trial counsel at sidebar stated with respect to Freeman:
This is the witness I spoke of earlier to counsel and the Court as well. As I indicated on the record previously, the witness was here, but pertaining to her credibility, I did not feel comfortable putting this witness on the witness stand, but she was here. The witness
was available, but I made the decision not to use this witness for reasons I explained.Id. at 206-07.
While this latter statement could support a finding that counsel made the decision not to call Freeman because he did not believe that she was credible, counsel's reason for not calling her was a factual issue that Appellant disputed. In his PCRA petition, Appellant alleged that he had repeatedly provided trial counsel with information concerning Freeman as an alibi witness, that trial counsel failed to interview her in advance of trial, and that trial counsel told him that he could not call Freeman as a witness because he had not filed notice of intent to offer an alibi defense. PCRA Petition, Argument and Citation ¶¶1-2; Supplement to PCRA Petition at 2-3. These allegations are consistent with trial counsel's admission that he did not interview Freeman until the fourth day of trial and that calling her was not "a viable option for my client at this point," N.T., 5/26/16, at 144 (emphasis added), and the fact that the trial court was noting that Appellant was "playing hide the ball until the trial with an alibi witness" at the time that counsel was offering his justification for not calling Freeman. Id. at 207. Given this factual dispute, whether trial counsel had a reasonable basis for his decision not to call Freeman cannot not be determined without a hearing. Grayson, 212 A.3d at 1054-55 ("'if there are factual issues to be resolved,' the PCRA court should hold an evidentiary hearing") (quoting Commonwealth v. Morris, 684 A.2d 1037 (Pa. 1996)).
Appellant's claim that counsel was ineffective for failing to call Freeman also requires proof that her testimony would be sufficiently beneficial to his defense that there was a reasonable probability of a different outcome at trial if she had testified. Sneed, 45 A.3d at 1109; Commonwealth v. Wantz, 84 A.3d 324, 332-33 (Pa. Super. 2014). To be entitled to present her testimony at a hearing to meet that burden, Appellant was required to include in his PCRA petition a certification setting forth Freeman's address, date of birth, and the substance of her testimony. 42 Pa.C.S. § 9545(d)(1); Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014). Although Appellant listed Freeman as a witness in his PCRA petition, PCRA Petition at 7, he did not provide this required certification concerning her testimony.
The trial court, however, did not mention this deficiency in its Rule 907 notice and stated only lack of merit as a ground for dismissal of this claim. Rule 907 Notice at 8-11. Where the trial court has not set forth failure to provide a sufficient witness certification in its Rule 907 notice and afforded the defendant the opportunity to correct that procedural defect, we cannot affirm its dismissal of a PCRA petition based on deficiency in defendant's witness certification. Commonwealth v. Robinson, 947 A.2d 710, 711 (Pa. 2008); Commonwealth v. Pander, 100 A.3d 626, 642 (Pa. Super. 2014) (en banc); Commonwealth v. Lippert, 85 A.3d 1095, 1098 (Pa. Super. 2014). We therefore cannot affirm the trial court's dismissal of Appellant's claim concerning Freeman on this alternative ground.
For the foregoing reasons, we conclude that, with the exception of Appellant's claim concerning alibi witness Freeman, the trial court did not err in dismissing Appellant's claims for PCRA relief without a hearing and affirm its dismissal of those claims. Because the trial court erred in ruling without a hearing that Appellant could not show ineffectiveness of trial counsel with respect to the failure to call Freeman as a witness, we vacate its dismissal of that claim and remand this case to the trial court with instructions to permit Appellant to provide a witness certification with respect to Freeman and any other witness other than himself that he would call at a hearing on this claim and to hold a hearing on that claim if Appellant provides a witness certification with respect to Freeman's testimony.
A PCRA petitioner is not required to file a witness certification with respect to his own testimony. Grayson, 212 A.3d at 1052-53.
Order affirmed in part and vacated in part. Case remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.