Opinion
J-S47007-12 No. 532 EDA 2011
05-12-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. TERRANCE WASHINGTON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 4, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): iCP-51-CR-0711021-1996, CP-51-CR-0711091-1996, CP-51-CR-0711141-1996, CP-51-CR-1009712-1996, CP-51-CR-1107481-1997, CP-51—CR-1107621-1997, CP-51-CR-1107651-1997, CP-51-CR-1107671-1997
BEFORE: BOWES, PANELLA AND MUSMANNO, JJ. CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:
As I strongly disagree with the distinguished majority's decision that Appellant is entitled to an evidentiary hearing as to his ineffectiveness alibi claim, I respectfully dissent from that aspect of the majority decision. I also separate myself from the majority's discussion of Alleyne v. United States , 133 S.Ct. 2151 (2013), during PCRA review. I concur with the remaining portions of the majority decision.
With respect to the alibi issue, Appellant cannot establish prejudice as a matter of law and therefore there is not any genuine issue of material fact. Appellant's purported alibi witness is Zenata Harper. In her witness certification, Ms. Harper stated that on June 6, 1996, and June 17, 1996, Appellant was "at our home with me." "Affidavit," Zenata Harper, at 1. She continued that it was "not feasible that he was out robbing anything/anybody on these two dates." Id . However, Appellant pled guilty to the armed robbery on June 6, 1996, as well as to one of the two armed robberies that occurred within hours of the other robbery on June 17, 1996. Hence, the contents of Ms. Harper's signed document, in light of Appellant's record confessions to robberies on the dates in question, demonstrate her incredulity.
Although entitled, "Affidavit," Ms. Harper's document does not meet the legal qualifications of an affidavit. See 1 Pa.C.S. § 1991; Commonwealth v. Brown , 872 A.2d 1139, 1168-1170 (Pa. 2005) (Castille, J., concurring) (discussing definition of affidavit).
Appellant robbed two separate stores on June 17, 1996. He pled guilty to a robbery occurring at 3393 Haverford Avenue, Philadelphia. He proceeded to trial on the robbery charge that transpired on 61st Street and Lancaster Avenue, Philadelphia.
Assuming arguendo that Ms. Harper can be viewed as a viable alibi witness as to the June 17, 1996 robbery that occurred at a state liquor store on Lancaster Avenue in Philadelphia, Appellant is still not entitled to relief. First, as noted, Ms. Harper prepared a document in which she claimed that she was at home with Appellant when he admittedly committed two other armed robberies, one on June 6, 1996 and another separate robbery on June 17, 1996. Indeed, Appellant's fingerprints were discovered at the scene of the June 6, 1996 crime, see N.T., 1/21/98, at 13, and on a bottle handled by one of the assailants at the Lancaster store during the June 17, 1996 robbery. N.T., 1/9/98, at 189-191. Thus, Ms. Harper's certification is refuted by the facts.
Appellant contends that it is of little moment that Ms. Harper's filing is contrary to the facts in relation to the June 6, 1996 occurrence. I disagree. While this Court does not review credibility, the PCRA court implicitly and necessarily found Appellant's entire claim incredible. Compare Commonwealth v. Washington , 927 A.2d 586, 597 (Pa. 2007) (recantation affidavit implicitly found incredible by PCRA court).
One of the cashiers at the Lancaster store also identified Appellant from a photographic array six days after the incident, although she failed to identify him at an in-person lineup. Equally important, police found proceeds of the robberies at the home that he and Ms. Harper shared when Appellant was arrested at that location. Those items included thousands of dollars in money wrappers, brown canvas cashier bags similar to those used by the Liquor Control Board, and a gun matching the description of a weapon used in the Lancaster robbery. Appellant's fingerprint was on that weapon. Hence, it is beyond cavil that the alibi is directly at odds with the physical evidence of record and Appellant's own admissions. Accordingly, Appellant cannot establish that there is a reasonable probability that the outcome of his trial would have been different, and there is no genuine issue of material fact necessitating an evidentiary hearing as to this claim.
I write further to note my disagreement with the majority's cursory discussion of Alleyne v. United States , 133 S.Ct. 2151 (2013), though I agree with its conclusion that Appellant is not entitled to Alleyne relief. The majority errs in concluding that the reason Appellant cannot achieve relief is because his claim is waived. A defendant proceeding on direct appeal may be entitled to relief based on an Alleyne claim, even if the issue is not preserved, because this Court has held that it applies to the legality of one's sentence. Similarly, in the PCRA setting, legality of sentence issues cannot be waived. See Commonwealth v. Rivera , 10 A.3d 1276 (Pa.Super. 2010; Commonwealth v. Springer , 961 A.3d 1262, 1264 n.3 (Pa.Super. 2008); Commonwealth v. Staples , 471 A.2d 847 (Pa.Super. 1984) (PCHA case); Commonwealth v. Roach , 453 A.2d 1001 (Pa.Super. 1983) (same); see also Commonwealth v. Fahy , 737 A.2d 214, 223 (Pa. 1999) ("Although legality of sentence is always subject to review within the PCRA, claims must still first satisfy the PCRA's time limits").
A defendant need not have preserved an issue relative to the legality of sentence to be entitled to retroactive application. Commonwealth v. Newman , 99 A.3d 86 (Pa.Super. 2014) (en banc); see also Commonwealth v. Foster , 17 A.3d 332, 345 n.21 (Pa. 2011) (OAJC). Indeed, the majority overlooks the very case it cites, Newman , which held that, on direct appeal, an Alleyne claim is not required to be raised to entitle a defendant to retroactive relief. Of course, retroactivity analyses for purposes of PCRA review and direct appeal are distinct. Thus, Appellant is not entitled to Alleyne relief for entirely separate reasons.
In Alleyne , the High Court held that the constitutional jury trial right requires any fact, other than a prior conviction, that triggers a mandatory minimum sentence, be proven beyond a reasonable doubt before a jury. Subsequently, this Court, though recognizing the distinction between a jury trial right claim and illegal sentencing issues, opined that an Alleyne claim can implicate the illegal sentencing paradigm. Commonwealth v. Watley , 81 A.3d 108 (Pa.Super. 2013) (en banc).
In addition, in a host of other decisions from this Court involving direct appeals, we have found that Alleyne issues are non-waivable illegal sentencing claims. Commonwealth v. Ferguson , 2015 PA Super 1; Commonwealth v. Wolfe , 2014 PA Super 288; Commonwealth v. Fennell , 2014 PA Super 261, Commonwealth v. Cardwell , 2014 PA Super 263; Commonwealth v. Valentine , 100 A.3d 801 (Pa.Super. 2014); Commonwealth v. Lawrence , 99 A.3d 116 (Pa.Super. 2014); Commonwealth v. Newman , 99 A.3d 86 (Pa.Super. 2014) (en banc); Commonwealth v. Matteson , 96 A.3d 1064 (Pa.Super. 2014); Commonwealth v. Thompson , 93 A.3d 478 (Pa.Super. 2014); Commonwealth v. Munday , 78 A.3d 661 (Pa.Super. 2013).
Importantly, in Watley , this Court also distinguished between applying Alleyne on direct appeal and collateral review. We noted that a case may be retroactive on direct appeal, but not during collateral proceedings. Watley , supra at 117 n.5. Thus, while this Court has held that Alleyne applies retroactively on direct appeal, see Newman , supra , we have declined to construe that decision as applying retroactively to cases during PCRA review. See Commonwealth v. Miller , 102 A.3d 988 (Pa.Super. 2014).
In Miller , the PCRA petitioner attempted to utilize Alleyne as a timeliness exception to the PCRA's one-year-time-bar based on the retroactive new constitutional rule exception. Miller, however, had been sentenced to a mandatory minimum based on prior convictions for violent crimes and Alleyne itself held that it did not apply to prior convictions. See Alleyne , supra at 2160 n.1; see also Watley , supra at 117 n.3. Thus, Alleyne had no application to the petitioner therein. Cf. Commonwealth v. Chambers , 35 A.3d 34 (Pa.Super. 2011) (holding of case and not its rationale determines whether case meets retroactive new constitutional rule exception).
However, the Miller panel discussed whether either the United Supreme Court or Pennsylvania Supreme Court held Alleyne retroactive. The Miller Court opined that because neither high court announced that Alleyne applied retroactively, it could not qualify as a timeliness exception. The panel was not faced with the separate question of whether it could consider Alleyne retroactive during a timely PCRA petition, despite the United States Supreme Court not having held Alleyne to be retroactive. See Danforth v. Minnesota , 552 U.S. 264 (2008) (holding that state courts may grant broader retroactive effect to a United States Supreme Court constitutional ruling).
The seminal test in determining whether a constitutional rule is new and warrants retroactive application during collateral review was delineated in Teague v. Lane , 489 U.S. 288 (1989) (plurality), and has been accepted by a majority of the United States Supreme Court. See Commonwealth v. Lesko , 15 A.3d 345, 363 (Pa. 2011) (citing Butler v. McKellar , 494 U.S. 407 (1990)). I am cognizant that Teague involved federal habeas review and did not consider whether state courts "can provide remedies for violations of [newly-recognized constitutional] rights in their own postconviction proceedings." Danforth , supra at 275. As Danforth stated, Teague spoke only to the context of federal habeas. Id. at 280-281.
In addition, I acknowledge that in Commonwealth v. McCormick , 519 A.2d 442 (Pa.Super. 1986), this Court held, in a pre -Teague direct appeal case, that Pennsylvania courts are not bound by United States Supreme Court determinations that a new rule is not retroactive. This view was accepted by the United States Supreme Court in Danforth , which, as noted, permits state courts to declare a federal constitutional right retroactive even if the United States Supreme Court has declined to do so. This Court could, therefore, theoretically utilize the Teague test and conclude a new constitutional rule was retroactive despite a contrary finding by the Supreme Court in a timely PCRA matter. Danforth , supra ; but see Commonwealth v. Cunningham , 81 A.3d 1 (Pa. 2013). Of course, such a ruling by this Court would not provide a timeliness exception for PCRA petitioners who did not timely file a petition.
"Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review. A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a 'watershed rule of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Whorton v. Bockting , 549 U.S. 406, 416 (2007) (internal citations omitted).
In Danforth v. Minnesota , 552 U.S. 264 (2008), the Supreme Court set forth that it did not decide "whether States are required to apply 'watershed' rules in state post-conviction proceedings[.]" Danforth , supra at 269 n.4. The dissent, however, opined, "a state court considering a federal constitutional claim on collateral review should follow the federal rule on whether new or old law applies." Id . at 307 n.3 (Roberts, C.J. dissenting).
Our Supreme Court has utilized the Teague test in examining retroactivity issues during state collateral review. Commonwealth v. Bracey , 986 A.2d 128 (Pa. 2009) (discussing Teague and substantive Atkins rule); Commonwealth v. Hughes , 865 A.2d 761 (Pa. 2004) (discussing Teague and whether a new rule was a watershed procedural rule); see also Cunningham , supra at 8 ("This Court, however, generally has looked to the Teague doctrine in determining retroactivity of new federal constitutional rulings.").
In Cunningham , the Court acknowledged that "this practice is subject to potential refinement" and "is not necessarily a natural model for retroactivity jurisprudence as applied at the state level." Cunningham , supra at 8. However, it ultimately applied the Teague formulation. In Teague , the Supreme Court sua sponte addressed the issue of retroactivity and stated, "[r]etroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated." Teague , supra at 300-01. The Court continued,
It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. See , e.g ., Rock v. Arkansas , 483 U.S. 44, 62, 107 S.Ct. 2704, 2714, 97 L.Ed.2d 37 (1987) (per se rule excluding all hypnotically refreshed testimony infringes impermissibly on a criminal defendant's right to testify on his behalf); Ford v. Wainwright , 477 U.S. 399, 410, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335 (1986) (Eighth Amendment prohibits the execution of prisoners who are insane). To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.Id . at 301 (emphasis in original); see also Hughes , supra at 780.
I have little hesitation in finding that Alleyne was a new constitutional rule as it expressly overruled Harris v. United States , 536 U.S. 545 (2002), and implicitly abrogated McMillan v. Pennsylvania , 477 U.S. 79 (1986). Of course, whether the constitutional rule announced is new is merely the first step in examining the retroactive effect of a United States Supreme Court decision. The Teague Court explained that new constitutional rules "generally should not be applied retroactively to cases on collateral review." Teague , supra at 305-06. In Penry v. Lynaugh , 492 U.S. 302 (1989), abrogated on other grounds by Atkins , supra , the Supreme Court more fully delineated the law governing retroactivity.
In Teague , we concluded that a new rule will not be applied retroactively to defendants on collateral review unless it falls within one of two exceptions. Under the first exception articulated by Justice Harlan, a new rule will be retroactive if it places "'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Teague , supra , at 307, 109 S.Ct., at 1073 (quoting Mackey , 401 U.S., at 692, 91 S.Ct., at 1179 (Harlan, J., concurring in judgments in part and dissenting in part)). Although Teague read this exception as focusing solely on new rules according constitutional protection to an actor's primary conduct, Justice Harlan did speak in terms of substantive categorical guarantees accorded by the Constitution, regardless of the procedures followed. This Court subsequently held that the Eighth Amendment, as a substantive matter, prohibits imposing the death penalty on a certain class of defendants because of their status, Ford v. Wainwright , supra , 477 U.S., at 410, 106 S.Ct., at 2602 (insanity), or because of the nature of their offense, Coker v. Georgia , 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (rape) (plurality opinion). In our view, a new rule placing a certain class of individuals beyond the State's power to punish by death is analogous to a new rule placing certain conduct beyond the State's power to punish at all. In both
cases, the Constitution itself deprives the State of the power to impose a certain penalty.Penry , supra at 329-30; see also Schriro v. Summerlin , 542 U.S. 348, 352 n.4 (2004).
As noted, the United States Supreme Court has utilized a substantive and procedural rule dichotomy in analyzing retroactivity. Substantive rules are those that decriminalize conduct or prohibit punishment against a class of persons. See Hughes , supra at 781. Concomitantly, the Supreme Court has made clear that "rules that regulate only the manner of determining the defendant's culpability are procedural." Schriro , supra at 353 (citation omitted) (emphasis in original). A constitutional criminal procedural rule will not apply retroactively unless it is a watershed rule that implicates the fundamental fairness and accuracy of the criminal proceeding.
A procedural rule is considered watershed if it is necessary to prevent an impermissibly large risk of an inaccurate conviction and alters the understanding of the bedrock procedural elements essential to the fairness of a proceeding. See Whorton , supra at 418. The only rule explicitly recognized by the United States Supreme Court as a watershed criminal procedural rule was announced in Gideon v. Wainwright , 372 U.S. 335 (1963), i.e., the right to counsel during a felony criminal prosecution. Whorton , supra at 419.
Gideon v. Wainwright , 372 U.S. 335 (1963), involved a case arising from Florida habeas review.
Instantly, the Alleyne ruling does not prohibit punishment for a class of offenders nor does it decriminalize conduct. Rather, Alleyne procedurally mandates the inclusion of facts in an indictment or information, which will increase a mandatory minimum sentence, and a determination by a fact-finder of those facts beyond a reasonable doubt. Alleyne , therefore, is not substantive. Nor do I find Alleyne to consist of a watershed procedural rule. See also United States v. Reyes , 755 F.3d 210 (3rd Cir. 2014); United States v. Redd , 735 F.3d 88, 91-92 (2d Cir.2013); In re Payne , 733 F.3d at 1029-30; In re Kemper , 735 F.3d 211, 212 (5th Cir. 2013); Simpson v. United States , 721 F.3d 875 (7th Cir. 2013).
In this regard, I find the United States Supreme Court decision in Schriro , supra and its discussion of Ring v. Arizona , 536 U.S. 584 (2002), instructive. Preliminarily, Ring involved a successful Apprendi challenge to a death penalty statute. Alleyne , it should be remembered, relied heavily on the Apprendi rationale. The High Court, in considering whether Ring applied retroactively, ruled that whether a judge or jury determined the facts essential to the increased punishment, beyond a reasonable doubt, was not material to the fundamental fairness or accuracy of capital sentencing. See Schriro , supra . Therefore, the distinction between whether a judge or jury determines the facts at issue does not result in the procedure announced in Alleyne being a watershed rule.
Apprendi v. New Jersey , 530 U.S. 466 (2000).
I acknowledge that the Alleyne decision involves not just a change in who determines the facts essential to punishment, but also the burden of proof that is to be applied. This, however, is no different from Apprendi , which no Pennsylvania court has found retroactive, and has not been held retroactive by the United States Supreme Court. Moreover, Alleyne does not create an entirely new procedure. Rather, it merely applies long-standing jury trial procedures into the setting of mandatory minimums, i.e., including facts in an indictment (or information) and requiring proof beyond a reasonable doubt of those facts. Although submission to a jury of certain facts may lead to more acquittals of the now "aggravated crime," it does not undermine the underlying conviction or sentence of the "lesser crime." This is because, in Pennsylvania, absent the jury finding the applicable facts, the defendant could receive the identical sentence for the "lesser crime." Hence, the fundamental fairness of the trial or sentencing is not seriously undermined.
In Ring v. Arizona , 536 U.S. 584 (2002), the judge was already required to determine the aggravating facts beyond a reasonable doubt.
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For the aforementioned reasons, I respectfully dissent from the majority's decision to grant an evidentiary hearing as to the alibi claim and distance myself from its discussion regarding waiver and Alleyne retroactivity. I concur in result as to the remaining claims.