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[U] Commonwealth v. Ratchliff

Superior Court of Pennsylvania

February 4, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TONY RUFUS RATCLIFF, III, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order entered June 4, 2013, in the Court of Common Pleas of Erie County, Criminal Division, at No(s): CP-25-CR-0001717-2009.

BEFORE: BOWES, ALLEN, and MUSMANNO, JJ.

MEMORANDUM

ALLEN, J.

Tony Rufus Ratcliff, III ("Appellant") appeals pro se from the order denying his first petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. sections 9541-46. We affirm.

The PCRA court summarized the pertinent facts and procedural history as follows:

At approximately 4:30 P.M. on May 16, 2009, Erie police and medical personnel were dispatched to investigate an unconscious driver that was stopped in the roadway blocking traffic on the Bay Front Highway, a high traffic, congested, undivided four lane parkway located in downtown Erie, Pennsylvania. [Appellant] was the sole occupant of the vehicle. After regaining consciousness and after being cleared by medical personnel, the Erie Police provided [Appellant] ample time to secure a driver for his automobile, during which time [Appellant] made approximately fifteen calls attempting to find a driver. However, [Appellant] was unable to secure a driver and after nearly a half hour on the scene, the Erie Police called a tow truck to move [Appellant's] vehicle as officers determined [Appellant] appeared to be incapable of safe driving. Police additionally discovered that [Appellant's] driver's license was suspended. In anticipation of the vehicle being towed from the scene and in compliance with department directives, police conducted a legal inventory search of [Appellant's] vehicle. [Appellant] was ultimately arrested after police discovered a variety of narcotics, drug paraphernalia, and a loaded .40 caliber Glock pistol.
Prior to trial, [Appellant] sought to suppress [] any and all evidence that was recovered from his vehicle via an Omnibus Pre-trial Motion challenging the propriety of the inventory search. After a hearing on the matter on February 3, 2010, this Court denied [Appellant's] motion in its Findings of Fact and Conclusions of Law filed February 23, 2010.
On March 22, 2011, [Appellant] appeared before [the trial court] for a trial by jury. [Appellant] was found guilty of possession with intent to deliver, firearms not to be carried without a license, possession of drug paraphernalia, three counts of possession of a controlled substance and the summary offense of driving while operating privileges are suspended.
On July 15, 2011, this Court sentenced [Appellant] to [an aggregate] term of five (5) to ten (10) years' incarceration.
[Appellant] filed a Post Sentence Motion on August 22, 2011 wherein he renewed the suppression issue [and] sought an arrest of judgment for failure of the Commonwealth to meet its burden of proof at trial. [Appellant's] Post Sentence Motion was argued before this Court on September 13, 2011, and the [trial court] denied [Appellant's] motion that same day.

PCRA Court Opinion and Notice, 1/31/13, at 1-2 (footnote omitted).

Appellant filed a timely appeal to this Court. Within his appeal, Appellant raised three issues that challenged the trial court's suppression ruling. In an unpublished memorandum filed on July 25, 2012, we rejected Appellant's claims, and affirmed his judgment of sentence. Commonwealth v. Ratcliff, 55 A.3d 148 (Pa.Super. 2012). Appellant did not file a petition for permission to appeal to our Supreme Court.

On October 24, 2012, Appellant filed a pro se PCRA petition, and the PCRA court appointed counsel. On December 5, 2012, PCRA counsel filed a motion to withdraw and a "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). In her "no-merit" letter, PCRA counsel addressed each issue raised by Appellant in his pro se petition, and concluded that Appellant's claims were either previously litigated, waived, or lacked arguable merit. After conducting an independent review of the record, the PCRA court filed, on January 31, 2013, Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition. In addition, the PCRA court granted PCRA counsel's petition to withdraw.

After the PCRA court granted Appellant several continuances to file a response, Appellant did so on May 6, 2013.[1] By order entered June 4, 2013, the PCRA court dismissed Appellant's PCRA petition. This timely pro se appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant raises the following issues in his pro se brief:

1. DID THE POLICE WHILE DOING AN "INVENTORY SEARCH" FINDING EVIDENCE [USED] AGAINST APPELLANT VIOLATE APPELLANT'S 4TH U.S. AMENDMENT [sic], AND THUS THE "FRUITS OF THE POISONOUS TREE"[?]
2. DID THE [TRIAL] COURT COMMIT AN ERROR OF LAW IN VIOLATION OF APPELLANT'S RIGHT TO [A] JURY OF ONE'S OWN PEERS IN VIOLATION OF APPELLANT'S 14th U.S. AMENDMENT [sic]?
3. WAS APPELLANT DEPRIVED OF HIS FIFTH AMENDMENT DOUBLE JEOPARDY PROTECTIONS VIOLATED FOR MULTIPLE PROSECUTIONS AND MULTIPLE PUNISHMENTS?
4. WAS APPELLANT'S TRIAL COUNSEL INEFFECTIVE DURING A STATE CRIMINAL PROCEEDING?
5. WAS APPELLANT DEPRIVED OF THE INEFFECTIVE ASSISTANCE [sic] OF APPELLATE COUNSEL DURING A STATE APPEAL PROCEEDINGS [sic]?

Appellant's Brief at 4.

This Court may only overturn a PCRA court's dismissal of a PCRA petition based on an error of law or an abuse of discretion. Commonwealth v. Johnson, 841 A.2d 136, 140 (Pa.Super. 2003), appeal denied, 858 A.2d 109 (Pa. 2004). "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. Daniels, 947 A.2d 795, 798 (Pa.Super. 2008), citing Commonwealth v. McClellan, 887 A.2d 291, 298 (Pa.Super. 2005), appeal denied, 897 A.2d 453 (Pa. 2006).

To be eligible for post-conviction relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated errors or defects in 42 Pa.C.S.A. section 9543(a)(2), and that the issues he raises have not been previously litigated. Commonwealth v. Carpenter, 725 A.2d 154, 160 (Pa. 1999). An issue has been "previously litigated" if 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 if the issue has been raised and decided in a proceeding collaterally attacking the conviction or sentence. Carpenter, 725 A.2d at 160; 42 Pa.C.S.A. § 9544(a)(2), (3). If a claim has not been previously litigated, the petitioner must then prove that the issue was not waived. Carpenter, 725 A.2d at 160. An issue will be deemed waived under the PCRA "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal, or in a prior state post-conviction proceeding." 42 Pa.C.S.A. § 9544(b).

In his first issue, Appellant challenges the inventory search that led to his arrest and convictions. As noted above, appellate counsel presented several challenges to the trial court's suppression ruling, and, finding no merit to the claims, we affirmed Appellant's judgment of sentence. Thus, Appellant's first issue is previously litigated, and we need not consider it further. Carpenter, supra.

In his second issue, Appellant challenges the makeup of the jury panel that convicted him. Appellant raised no such claim before the trial court, and did not raise the issue in his direct appeal. Thus, the claim is waived, and we need not consider it further. Carpent er, supra. The same is true for Appellant's third issue, in which he asserts a violation of his double jeopardy protection. Nevertheless, our review of the record reveals that no such violation occurred, as Appellant was properly tried and sentenced for his convictions.

In his remaining issues, Appellant challenges the effectiveness of trial and appellate counsel. Our standard of review is well settled. To obtain relief under the PCRA premised on a claim that counsel was ineffective, a petitioner must establish by a preponderance of the evidence that counsel's ineffectiveness so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). "Generally, counsel's performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner." Id. This requires the petitioner to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice" requires the petitioner to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. Counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.Super. 2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).

A PCRA petitioner claiming he or she received the ineffective assistance of counsel must allege sufficient facts from which a court can determine counsel's effectiveness. See Commonwealth v. Pettus, 424 A.2d 1332 (Pa. 1981) (stating that a defendant may not argue ineffectiveness in vacuum). Within his pro se brief, Appellant does no more than list his claims of ineffectiveness regarding each counsel. Importantly, he provides insufficient facts and no argument to establish his burden under the tripartite test for ineffective assistance claims. Johnson, supra. Thus, we need not consider Appellant's undeveloped claims further.

In sum, because the PCRA court did not commit an error of law or abuse of discretion, Appellant is not entitled to relief, and we affirm the PCRA court's order.

Order affirmed.

Judgment Entered.


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