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Commonwealth v. Taulton

Superior Court of Pennsylvania

November 8, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ERIC NIGEL TAULTON Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of November 8, 2012 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0004611-2003

BEFORE: PANELLA, OLSON and PLATT, [*] JJ.

MEMORANDUM

OLSON, J.

Appellant, Eric Nigel Taulton, appeals pro se from the order entered on November 8, 2012 dismissing his third petition filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

In February 2003, Appellant purchased one kilogram of cocaine from Edwin Torres ("Torres"). On three separate occasions later that month, Appellant sold in excess of 100 grams of cocaine to a co-conspirator or a confidential informant. On September 24, 2004, a jury convicted Appellant of corrupt organizations, [1] criminal conspiracy, [2] multiple counts of criminal use of communication facility, [3] and three counts of delivery of cocaine in an amount of at least 100 grams.[4] Appellant was sentenced to an aggregate term of 21 to 42 years' imprisonment. Appellant was represented by Attorney Leigh P. Narducci at trial. We affirmed the judgment of sentence on May 2, 2006 and our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Taulton, 903 A.2d 54 (Pa.Super. 2006) (unpublished memorandum), appeal denied, 912 A.2d 1292 (Pa. 2006). Appellant was represented by Attorney Laurence A. Narcisi on his direct appeal.

On August 21, 2007, Appellant filed a PCRA petition and the PCRA court appointed Attorney Joseph J. Hylan to represent Appellant. After reviewing the case, however, Attorney Hylan filed a purported "no merit" letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc), and declared that, in his professional judgment, Appellant's attempt at post-conviction collateral relief was meritless. The PCRA court found that this purported "no merit" letter was deficient and, because Attorney Hylan had retired, the PCRA court appointed Attorney Henry S. Hilles, III as new PCRA counsel. Attorney Hilles also filed a "no merit" letter. The PCRA court found that Attorney Hilles' "no merit" letter complied with Turner/Finley. After an independent review of the record, and giving notice pursuant to Pa.R.Crim.P. 907(1), the PCRA court dismissed Appellant's first PCRA petition without a hearing on January 28, 2009. We affirmed the dismissal. Commonwealth v. Taulton, 986 A.2d 1266 (Pa.Super. 2009) (unpublished memorandum), appeal denied, 991 A.2d 312 (Pa. 2010).

Acting pro se, Appellant filed a second PCRA petition on January 3, 2011. The PCRA court dismissed this PCRA petition without a hearing on March 3, 2011. We affirmed the dismissal. Commonwealth v. Taulton, 37 A.3d 1237 (Pa.Super. 2011) (unpublished memorandum).

While that appeal was pending, Appellant filed a "Motion for New Trial – After Discovered Evidence" with the PCRA court. In that filing, Appellant alleged that the Commonwealth had violated Brady v. Maryland, 373 U.S. 83 (1963), [5] by failing to disclose the extent of Torres' arrest record and allowing Torres to perjure himself at trial with respect to his arrest record.[6] The PCRA court dismissed the motion, finding that the claim must be brought in a PCRA petition and that the filing of a PCRA petition was barred because the appeal from the dismissal of Appellant's second PCRA petition was pending before us. See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (when PCRA appeal is pending, subsequent PCRA petition cannot be filed until resolution of appellate review by highest state court, or at expiration of time for seeking such review).

Appellant, again acting pro se, filed this, his third PCRA petition, on January 1, 2012.[7] In his petition, he raised the Brady issue that he had previously raised in his "Motion for New Trial – After Discovered Evidence." He further alleged that the Commonwealth violated Brady by failing to arrest him after he purchased the kilogram of cocaine from Torres. On February 7, 2012, Attorney Narducci entered his appearance on behalf of Appellant. Attorney Narducci did not file an amended PCRA petition. Instead, he requested time to investigate Appellant's claims and, after that investigation concluded, requested a hearing. However, on August 8, 2012 the PCRA court issued notice pursuant to Pa.R.Crim.P. 907(1) that it intended to dismiss the petition without a hearing.

After receiving an extension of time to file a response to the notice, Attorney Narducci, on September 7, 2012, notified the PCRA court that Appellant was requesting the appointment of new counsel as Appellant wished to raise a claim that Attorney Narducci had been ineffective. The PCRA court informed both Attorney Narducci and Appellant that it had determined that a hearing was not required and, therefore, Appellant was not entitled to appointment of counsel pursuant to Pa.R.Crim.P. 904(D). On September 26, 2012, Attorney Narducci filed a petition to withdraw as counsel, which the PCRA court granted with Appellant's consent. Thereafter, Appellant filed a timely pro se response to the PCRA court's Rule 907(1) notice, which included a request for the appointment of counsel. The PCRA court denied Appellant's request for appointment of counsel and dismissed the PCRA petition on November 8, 2012. This timely appeal followed.[8]

In Appellant's brief, he sets forth the following issues for our review:[9]

1. Did the PCRA court err in finding that the Commonwealth did not violate[] Brady, and that counsel was not ineffective for relying on the open file policy . . . ?
2. Did the PCRA court err in finding that Brady's [progeny] did not cover sentence manipulation [and] entrapment and [Appellant's petition] was not timely filed under Brady and that counsel was ineffective in this regards[?]
3. Did the PCRA court err in finding that counsel was not [ineffective] for advising Appellant not to take the deal offered by the Commonwealth; when [Lafler v. Cooper, 132 S.Ct. 1376 (2012), and Missouri v. Frye, 132 S.Ct. 1399 (2012)] direct[] re-sentencing because of counsel[']s ineffectiveness[?]
4. Did the PCRA court err in finding that Appellant was not innocent under the statute and that counsel was not ineffective when this claim is timely filed under Brady[?]
5. Did the PCRA court err in finding that counsel was not ineffective in failing to raise the sentence manipulation [and] entrapment defense when the claim is timely filed in light of the Brady claim[?]
6. Did the PCRA court err in finding that counsel was not ineffective in failing to investigate the Commonwealth[']s chief witness Torres when he had pending charges that [were] his motive to implicate Appellant falsely but relied on the open book policy when this claim is timely filed [in light] of the Brady claim[?]
7. Did the PCRA court err in finding counsel not [ineffective] for failing to raise [Crawford v. Washington, 541 U.S. 36 (2004)] at the [trial] level and on direct appeal[?]
8. Did the PCRA court err in finding that counsel was not ineffective for failing to raise the timely claim of the sentence being illegal[?]
9. Did the PCRA court err in finding that there was no conflict of interest when trial counsel entered his appearance as PCRA counsel who could not layer his own ineffectiveness . . . [and] that new counsel was not ...

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