February 7, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
WILLIAM STOVALL, Appellant
Appeal from the PCRA Order entered January 14, 2013, in the Court of Common Pleas of Montgomery County, Criminal Division, at No(s): CP-46-CR-0000936-1984.
BEFORE: ALLEN, STABILE, and STRASSBURGER, [*] JJ.
William Stovall ("Appellant") appeals from the order denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"). 42 Pa. C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the "relevant facts and tortured procedural history" as follows:
While on his way to the Montgomery County Courthouse from Graterford State Correctional Institution to testify as a witness in another case, [Appellant] escaped by force from police custody on February 2, 1984. Detectives apprehended [Appellant] twenty-five (25) days later and arrested him at a house in Philadelphia.
On the morning of the first day of trial, [Appellant] announced that he wished to dismiss his court-appointed attorney, Thomas Keenan, Esquire of the Montgomery County Public Defender's Office, and requested court- appointed counsel from outside the Public Defender's Office. The Honorable Samuel W. Salus, II denied [Appellant's] request. Following a lengthy, thorough colloquy, Judge Salus permitted [Appellant] to proceed pro se with Attorney Keenan present as standby counsel. [Judge Salus determined that Appellant's claim of a conflict was "created by [Appellant's] personal and subjective assertions and not on the basis of the record." N.T., 11/14/84, at 4. Judge Salus also noted that Appellant's eleventh hour motion was one more attempt to delay his trial.] Attorney Keenan turned over to [Appellant] the discovery he had received from the Commonwealth, as well as copies of the case law Attorney Keenan, the Commonwealth and Judge Salus all agreed was relevant.
Immediately preceding [Appellant's] case in chief, the Commonwealth stipulated that they would not use [Appellant's] record of crimen falsi crimes should [Appellant] choose to testify. In addition, the Commonwealth requested an offer of proof which would meet the parameters of the defense of duress before [Appellant] would be permitted to present such a defense. [Appellant] proffered his testimony in limine, after which Judge Salus informed [Appellant] that he had failed to make out the legal requirements for the defense of duress. [Judge Salus] did, however, allow [Appellant] to testify as [Appellant] did in his proffer as to the events in question and to explain the reasons for his actions as his defense. Moreover, the trial court gave a jury instruction on the four elements required for the defense of duress.
On cross-examination, [Appellant] conceded that he had not reported any of the alleged threats on his life to prison authorities, he had never requested a transfer to solitary confinement or to another prison, officers arrested him in an apartment where they found three (3) weapons including the Sheriff's 357 magnum revolver [Appellant] took during his escape, and [Appellant] had made no effort whatsoever to return to custody in the twenty-five (25) days since his escape. At the close of the two (2) day trial, the jury convicted [Appellant] of Escape, Weapons or Implements for Escape, Kidnapping, Possessing Instruments of Crime, Robbery, Theft of Movable Property and Unauthorized Use of a Motor Vehicle.
On May 1, 1985, Judge Salus held a post-trial evidentiary hearing on [Appellant's] Rule 1100 (now Rule 600) waiver claim. Both Attorney Keenan and [Appellant] provided testimony regarding their understanding of [Appellant's] request for a trial postponement. Judge Salus determined [Appellant's] claim lacked merit and denied relief. Attorney Richard J. Hodgson (subsequently Judge Hodgson) represented [Appellant] during the post-trial stage and on appeal. After receiving [Appellant's] presentence report and conducting a sentencing hearing, the court entered [Appellant's] judgment of sentence on May 23, 1985. [Appellant] received an aggregate sentence of fifteen (15) to thirty-four (34) years' incarceration consecutive to [Appellant's] existing Pennsylvania sentence.
[Appellant] filed a notice of appeal, and Judge Salus filed his opinion pursuant to Pa.R.A.P. 1925(a) on August 8, 1985. The Superior Court affirmed [Appellant's] judgment of sentence by Memorandum Opinion. Commonwealth v. Stovall, 512 A.2d 1292 (Pa.Super. 1986). Attorney Hodgson did not file a petition for allowance of appeal with the Pennsylvania Supreme Court ("Supreme Court").
[Appellant] filed his first [PCRA petition] on January 9, 1997. Judge Salus dismissed the petition without a hearing by order entered October 19, 2001. [Appellant] appealed the decision, and Judge Salus issued his 1925(a) opinion on November 28, 2001. The Superior Court affirmed the October 19, 2001 order denying PCRA relief by Memorandum Opinion. Commonwealth v. Stovall, [808 A.2d 252 (Pa.Super. 2002)]. On November 27, 2002, the Supreme Court issued a Per Curiam Order denying [Appellant's] pro se Petition for an Extension of Time and Appointment of Counsel to File a Petition for Allowance of Appeal. Commonwealth v. Stovall, 205 MM 2002 (Pa. filed November 27, 2002).
On January 28, 2003, [Appellant] filed a petition for Writ of Habeas Corpus in which he alleged that his conviction and sentence were obtained and imposed in violation of his Sixth Amendment right to counsel and in violation of his Fifth and Fourteenth Amendment rights to a fair, neutral, and impartial judge. The United States Magistrate Judge recommended that the Writ be denied and dismissed. The Honorable Linda K. Caracappa determined that there was nothing in the record demonstrating that "the trial judge was anything but fair and impartial." (Report and Recommendation[)] (C.A. No. 03-5879, 10/13/04, at 8). In addition, Judge Caracappa concluded that "All court proceedings were and have been proper, and [Appellant] is lawfully confined pursuant to a valid judgment and order of a court of competent jurisdiction." (Id.)
On April 19, 2005, the Honorable Paul S. Diamond issued his Memorandum Opinion. (William Stovall v. Warden, New Jersey State Prison, District Attorney of Montgomery County, PA, 2005 WL 913331, U.S. Dist. Ct. C.A. No. 03-5879 (E.D.Pa. April 19, 2005)). Judge Diamond agreed with Judge Caracappa's assessment of the trial court proceedings. He determined that "[t]he trial court's actions were clearly reasonable" and "the trial judge conducted a detailed colloquy". (Id. at 6, 8). As Judge Diamond noted, "[s]ignificantly, throughout the colloquy, [Appellant] actively discussed with the court his rights and obligations as they were explained to him." (Id. at 8). However, Judge Diamond also held, and the Commonwealth conceded, that [Appellant] was entitled to relief on his claim for ineffectiveness of appellate counsel for failing to seek allocatur. (Id. at 10). Accordingly, Judge Diamond granted [Appellant] the right to file a petition for allowance of appeal nunc pro tunc and denied the remainder of the claims without prejudice.
[Appellant] filed a petition for allowance of appeal to [our] Supreme Court on June 3, 2005. [Our] Supreme Court denied the petition by Per Curiam Order dated November 3, 2005. On October 17, 2006, or eleven and one-half (11 ½) months later, Appellant filed another PCRA Petition pro se. [The PCRA court appointed counsel, and on] November 6, 2006, [PCRA] Counsel filed an Amended Petition. This Amended Petition contained many of the same claims raised in the previous PCRA petition albeit with a slightly different spin.
In an abundance of caution, this Court held a video PCRA hearing on June 26, 2007. [Appellant participated in the hearing by video from the New Jersey State Prison in Trenton.] Cheryl J. Sturm, Esquire represented [Appellant] at the Hearing. Attorney Sturm called two witnesses in support of [Appellant's] amended petition, Attorney Thomas Keenan and [Appellant]. Attorney Sturm questioned Attorney Keenan concerning the Rule 1100 wavier and whether there was a conflict between himself and [Appellant]. Attorney Keenan did not recall a conflict. After a thorough review of the Notes of Testimony, the entire trial and appellate record, the post hearing briefs filed by Counsel, having heard oral argument and this court's review of the relevant and applicable case law, [this Court] denied [Appellant's] Amended PCRA Petition by order docketed on January 14, 2013.
PCRA Court Opinion, 7/9/13, at 1-7 (citations and footnotes omitted). This timely appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
Appellant raises the following issues:
I. WHETHER THE PCRA COURT ERRED WHEN IT RULED THAT SOME OF APPELLANT'S CLAIMS HAD BEEN PREVIOUSLY LITIGATED OR OTHERWISE WAIVED?
II. WHETHER THE PCRA COURT ERRED WHEN IT FAILED TO GRANT A NEW TRIAL BASED ON THE COMPLETE BREAKDOWN IN THE ATTORNEY-CLIENT RELATIONSHIP AND APPELLATE COUNSEL'S FAILURE TO RAISE THIS ISSUE ON APPEAL?
III. WHETHER THE PCRA COURT ERRED WHEN IT FAILED TO GRANT A NEW TRIAL BASED ON THE DENIAL OF THE SIXTH AMENDMENT RIGHT TO CALL WITNESSES FOR THE DEFENSE AND APPELLATE COUNSEL'S FAILURE TO RAISE THIS ISSUE ON APPEAL?
IV. WHETHER THE PCRA COURT ERRED WHEN IT FAILED TO GRANT A NEW TRIAL BASED ON JURY INSTRUCTIONS WHICH DIRECTED A VERDICT ON ELEMENTS OF THE OFFENSE, AND APPELLATE COUNSEL'S FAILURE TO RAISE THE ISSUE ON APPEAL?
V. WHETHER THE PCRA COURT ERRED WHEN IT FAILED TO GRANT A NEW TRIAL BASED ON  APPELLANT HAVING TO APPEAR BEFORE THE JURY IN HANDCUFFS AND SHACKLES AND, APPELLATE COUNSEL'S [FAILURE] TO RAISE THIS ISSUE ON APPEAL?
Appellant's Brief at 2 (emphasis omitted).
In reviewing the propriety of an order granting or denying PCRA relief, an appellate court is limited to ascertaining whether the record supports the determination of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great deference to the findings of the PCRA court, "but its legal determinations are subject to our plenary review." Id. Furthermore, 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). Finally, to be entitled to relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence that the conviction or sentence arose from one or more of the errors enumerated in section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness of counsel.
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. Johnson, 966 A.2d at 532. "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).
Appellant first asserts that his claims of ineffective assistance on the part of his appellate counsel have not been previously litigated under the PCRA. Appellant posits "[c]laims of ineffectiveness of counsel are separate and discrete [sic] from the underlying claims of error." Appellant's Brief at 10 (citing Commonwealth v. Collins, 888 A.2d 564, 573 (Pa. 2005)). According to Appellant, "when the United States District Court granted habeas corpus based on ineffective assistance of [appellate] counsel for failing to file a petition for allowance of appeal, [the court] restored the right to file the petition for allowance of appeal but denied the rest of the claims without prejudice." Id. at 11. Thus, Appellant concludes that Judge Diamond's "decision had the effect of granting Appellant the right to file a first PCRA petition alleging claims not previously litigated on direct appeal, including but not limited to ineffective assistance of appellate counsel." Id.
We agree with Appellant's claim that, following the restoration of his appellate rights, nunc pro tunc, he is afforded the right to file his "first" PCRA petition. Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.Super. 2007). Additionally, we agree with counsel that Appellant's claims of ineffective assistance of appellate counsel have not been "previously litigated" under the PCRA. Nevertheless, Appellant cites no authority for his corollary proposition that:
The effect of the [federal] order was to render null and void any opinions and orders issued by the state court system after the Superior Court's decision on direct appeal affirming the judgment of sentence. This includes the advisory opinion of the United States district court judge [sic]. The net effect of the order was to place [Appellant] in the position he would have occupied had appellate counsel filed the petition for allowance of appeal.
Appellant's Brief at 9. Thus, we will consider Appellant's present claims of ineffectiveness of appellate counsel in light of the prior reasoning and rationale provided by both state and federal appellate review in this case.
Secondly, Appellant claims that appellate counsel was ineffective for failing to pursue his claim that a complete breakdown in the attorney-client relationship occurred prior to trial. According to Appellant, "the trial court's failure to hold a hearing on the claim of complete breakdown in the attorney client relationship was, and is clear constitutional error of the first degree. The error is structural because it is not possible to reconstruct the trial, and conduct harmless error analysis." Id. at 17.
The PCRA court found Appellant's claim meritless because the Appellant's waiver of trial counsel had been previously litigated in Appellant's direct appeal, in his prior post-conviction proceeding, and in the federal courts. The PCRA court explained:
[Appellant] contends that this Court erred in failing to find that he was denied the right to counsel at trial because the trial judge's "erroneous refusal to appoint substitute counsel is reversible error." [Appellant] also complains that the trial court "should have, but did not, conduct an evidentiary hearing" regarding the "miscommunication" over the scope of the speedy trial waiver. Judge Salus addressed and dismissed these very issues in his first [Pa.R.A.P.] 1925(b) opinion. Moreover, the Superior Court affirmed the trial court's reasoning on direct appeal. (As these issues have been previously litigated, our inquiry ends.
As a subpart of his first issue, [Appellant] also alleges that he did not effectively waive his right to counsel. [Appellant] insists that he is entitled to PCRA relief because the trial judge afforded him the "impermissible choice to proceed with conflicted, incompetent counsel or proceed pro-se [sic]." This claim is belied by the record. Further, in spite of the opportunity to present additional evidence at the PCRA Hearing on June 26, 2007, [Appellant] failed to provide any evidence whatsoever to suggest that Judge Salus was incorrect in his assessment of [Appellant's] claims raised on the morning of the first day of trial.
In the matter sub judice, the Superior Court has already determined that the colloquy performed by Judge Salus resulted in "a knowing and effective waiver of the right to appointed counsel". Moreover, Judge Diamond of the United States District Court for the Eastern District of Pennsylvania concluded that Judge Salus conducted a "lengthy" and "adequate colloquy". In fact, Judge Diamond specifically "reject[ed] [Appellant's] contention that his waiver of counsel was involuntary because the trial judge forced him to choose between 'incompetent/conflicted' counsel and proceeding pro se." Judge Diamond agreed with the Magistrate that "[Appellant's] waiver of his Sixth Amendment right to counsel was knowing, voluntary, and intelligent."
PCRA Court Opinion, 7/9/13, at 15-17 (citations omitted).
Our review of the record supports the PCRA court's conclusions. Moreover, our review of Appellant's Pa.R.A.P. 1925(b) statement support's the Commonwealth's assertion that Appellant has not properly preserved his claim of ineffective assistance of appellate counsel with regard to this issue. Thus, the claim is waived. See generally, Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Allshouse, 969 A.2d 1236 (Pa.Super. 2009). Nevertheless, Appellant's claim of appellate counsel ineffectiveness fails on its merits because our review of the record supports the PCRA court's finding that, at the PCRA hearing, Attorney Keenan testified that he did not perceive a complete breakdown of the attorney-client relationship. See N.T., 6/27/07, at 10-15. Appellate counsel cannot be deemed ineffective for pursuing a meritless claim. Loner, supra. Thus, even if not waived, Appellant's claim fails.
In his third issue, Appellant asserts that appellate counsel was ineffective for failing to raise the issue of trial court error in connection with the calling of two witnesses that would have supported his defense of duress. According to Appellant:
[Appellant] testified at the suppression hearing that he escaped because he believed his life was in danger, and further testified that two Graterford inmates, Bobby Sims and Richard Harris had been recruited to kill him. At first, it appeared as if [Judge Salus] was amenable to the motion for writ of habeas corpus ad testificandum. However, the next day, the judge denied the motion.
[Judge Salus's] decision eliminated the only defense available to Appellant by eliminating the two witnesses who could have substantiated [that Appellant's] escape was in response to credible death threats if Appellant remained in jail. [Judge Salus's] decision denied [Appellant] the federal constitutional right to call witnesses for the defense.
Appellate counsel was constitutionally ineffective for failing to appeal this issue on grounds that the failure to call defense witnesses violated the Sixth Amendment right to present a defense.
Appellant's Brief at 19. Appellant further asserts that, had "appellate counsel litigated this issue, and requested a remand to develop the record, there was a reasonable chance of reversal on appeal." Id. at 20.
The PCRA court found Appellant's claim meritless because the issue regarding the trial court's ruling as to the two witnesses had been previously litigated. The PCRA court explained:
[Appellant] contends that this court erred in not finding Judge Salus violated [Appellant's] fundamental right to call defense witnesses at trial. [Appellant] asserts that the two witnesses he wanted to call, Bobby Sams [sic] and Richard Harris, were two Graterford inmates who had been offered money to kill him. By not allowing [Appellant] to call these two witnesses who allegedly could have substantiated that [Appellant's] escape was in response to fear, [Appellant] maintains [Judge Salus] undercut his defense of duress. [Appellant's] claim merits no relief.
Judge Salus originally addressed this issue in his [Pa.R.A.P.] 1925(a) opinion in response to [Appellant's] direct appeal. The Superior Court affirmed the decision in its Memorandum based upon Judge Salus's sound reasoning. As this issue has been previously litigated, our inquiry ends.
PCRA Court Opinion, 7/9/13, at 17-18. Our review of the record supports the PCRA court's conclusions. Because appellate counsel did, in fact, raise this exact claim in Appellant's direct appeal, Appellant's claim of ineffectiveness is baseless.
In his fourth issue, Appellant claims that appellate counsel was ineffective for failing to raise his claim that the trial court erred in instructing the jury on an element of the crime of escape.
"When reviewing a challenge to part of a jury instruction, we must review the jury charge as a whole to determine if it is fair and complete. A trial court has wide discretion in phrasing its jury instructions, and can choose its own words as long as the law is clearly, adequately, and accurately presented to the jury for its consideration. The trial court commits an abuse of discretion only when there is an inaccurate statement of the law." Commonwealth v. Roser, 914 A.2d 447, 455 (Pa.Super. 2006) (citation omitted). "A jury instruction will be upheld if it clearly, adequately, and accurately reflects the law." Commonwealth v. Smith, 956 A.2d 1029, 1034-35 (Pa.Super. 2008) (en banc) (citation omitted).
Judge Salus's entire instruction regarding the elements of escape reads:
The first charge, which is charged against [Appellant, ] is the obvious one of escape. In order to find [Appellant] guilty of the felony of escape, you must be satisfied that the following three elements have been proven beyond a reasonable doubt.
First, that [Appellant] was under official detention. Official detention includes detention in any facility for custody of persons charged or [convicted] of a crime. Second, that [Appellant] unlawfully removed himself from official detention or failed to return to official detention. And, third, that [Appellant] was under arrest or detained on a charge of a felony. I instruct you that [Appellant] was under detention for a felony.
N.T., 11/14/84, at 176.
According to Appellant, Judge Salus improperly directed a verdict on the third element of escape in that he relieved the Commonwealth from proving this element beyond a reasonable doubt. The PCRA court found no merit this claim, reasoning as follows:
[Appellant] proffers in his third issue on appeal that post trial and appellate counsel, Attorney Hodgson, provided ineffective assistance of counsel for failing to argue that Judge Salus erred in his jury instruction on the elements of the crime of Escape. [Appellant] failed to object to this charge at trial. Accordingly, [Appellant] is attempting to assert a challenge to the effectiveness of post trial and appellate counsel for failing to raise a claim regarding [Appellant's] own ineffectiveness. [Appellant's] claim is unavailing.
PCRA Court Opinion, 7/9/13, at 18-19.
Our review of the record supports the PCRA court's conclusion. Appellant cannot base a claim of appellate ineffectiveness on his own failure to preserve a claim for appellate review. See Commonwealth v. Fletcher, 986 A.2d 759, 774 (Pa. 2009) (explaining that a pro se defendant cannot assert his own ineffectiveness or that of standby counsel as a basis for relief). Thus, this ineffectiveness claim fails.
In his final ineffectiveness claim, Appellant asserts that appellate counsel should have raised a claim of trial court error because he had to appear before the jury in handcuffs and shackles. According to Appellant, he "was forced to appear before the jury in restraints for no good reason. This undermined if not eliminated the presumption of innocence, and denied a fair trial." Appellant's Brief at 24.
The PCRA court found Appellant's claim to be waived:
In his final issue on appeal, [Appellant] argues for the first time that the "trail [sic] court violated the Fifth and Fourteenth Amendments by requiring [him] to try his case in restraints for no good reason. [There is no record of Appellant requesting that the restraints be removed or of Appellant objecting to the restraints until his most recent PCRA petition.] [Appellant] has not pointed to a place in the record, nor can we find one, where he raised this claim before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding. Accordingly, [Appellant's] final issue is waived.
PCRA Court Opinion, 7/9/13, at 19 (citations and footnote omitted).
Our review of the record once again supports the PCRA court's conclusion. Carpenter, supra. Because Appellant never objected to appearing in restraints, he did not preserve the issue for appellate counsel to raise on appeal. Fletcher, supra.
In sum, Appellant's claims of appellate counsel's ineffectiveness are either refuted by the record, waived under the PCRA, or otherwise without merit. We therefore affirm the PCRA court's order denying him postconviction relief.