February 18, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
FRANCIS ALEXCIS CRUZ-RIVERA Appellant
Appeal from the PCRA Order April 16, 2013 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000909-2010
BEFORE: MUNDY, J., WECHT, J., and FITZGERALD, J. [*]
Appellant, Francis Alexcis Cruz-Rivera, appeals from the April 16, 2013 order denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Contemporaneously with this appeal, counsel has requested leave to withdraw in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc), and their progeny. After careful review, we grant counsel leave to withdraw and affirm the order of the PCRA court.
The PCRA court summarized the underlying facts and procedural history of this case as follows.
On December 31, 2009, [Appellant] was arrested for firing a handgun at two former co-workers as they were standing outside their place of employment locking up. [Appellant] and his accomplice returned to the location minutes later and did a second drive-by shooting at one of the men. [Appellant] was subsequently tried and convicted on December 2, 2010, of aggravated assault, criminal conspiracy, and recklessly endangering another person.2
On March 25, 2011, [Appellant received an aggregate sentence of five to ten years' incarceration in a state correctional institution. [Appellant] filed a timely post-sentence motion challenging the verdict as against the weight of the evidence. By Opinion and Order dated April 15, 2011, th[e trial c]ourt denied [Appellant's] post-sentence motion.
2 18 Pa.C.S.A. § 2702(a)(1), 18 Pa.C.S.A. § 903, [and] 18 Pa.C.S.A. § 2705, respectively.
PCRA Court Opinion, 4/16/13, at 1-2 (footnote in original).
On April 26, 2011, Appellant filed a timely notice of appeal, challenging the weight of the evidence. This Court affirmed Appellant's judgment of sentence on November 17, 2011. See Commonwealth v. Cruz-Rivera, 38 A.3d 923 (Pa.Super. 2011) (unpublished memorandum), appeal denied, 49 A.3d 442 (Pa. 2012). Thereafter, Appellant filed a petition for allowance of appeal with our Supreme Court, which was denied on July 23, 2012. Id. Appellant was represented during trial and on direct appeal by Christopher Lyden, Esquire (hereinafter, trial counsel).
On October 22, 2012, Appellant filed a timely pro se PCRA petition arguing, inter alia, that the evidence was insufficient to support the charges, that he was denied a fair jury pool, and that his trial counsel was ineffective. See Pro Se PCRA Petition, 10/22/12 (docketed 10/25/12), at ¶¶ 5A(1)-(3). On November 1, 2012, the PCRA court appointed Appellant's instant counsel, Andrew S. Cooper, Esquire (Attorney Cooper), to represent him. Attorney Cooper filed an amended PCRA petition on Appellant's behalf on January 4, 2013. The sole issue raised in Appellant's amended petition was the ineffectiveness of trial counsel for failing to raise a Batson challenge during voir dire. See Amended Petition, 1/4/13, at ¶¶ 12-15.
On January 10, 2013, the PCRA court entered an order directing Appellant to provide a full and complete record demonstrating the alleged Batson violation within 30 days. Attorney Cooper requested and was granted an additional 21 days to submit the necessary record. On March 4, 2013, in lieu of a full and complete Batson record, Attorney Cooper provided the PCRA court with a copy of correspondence he received from Appellant with regards to the alleged Batson violation. Upon review, the PCRA court concluded that Appellant was not entitled to an evidentiary hearing on the Batson challenge, and, on March 11, 2013, provided Appellant with notice of its intent to dismiss his petition without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant did not file a response to the PCRA court's Rule 907 notice. On April 16, 2013, the PCRA court dismissed Appellant's petition without a hearing.
This timely appeal followed on May 15, 2013. On May 16, 2013, the PCRA court directed Appellant to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b), within 21 days. Attorney Cooper filed a timely Rule 1925(b) statement on Appellant's behalf on June 4, 2013. In lieu of a formal Rule 1925(a) opinion, the PCRA court filed a one-paragraph memorandum on June 19, 2013, adopting the rationale of its prior opinion and order dated April 16, 2013.
Thereafter, on October 10, 2013, Attorney Cooper filed a petition styled as an "Amended Brief, " wherein he sought to withdraw as counsel pursuant to Turner/Finley. Therein, Attorney Cooper stated he independently reviewed the record, conducted legal research on the issue raised by Appellant, and concluded that Appellant's claim was devoid of merit. The record reflects, however, that Attorney Cooper failed to attach to his petition a copy of a letter notifying Appellant of his right to proceed pro se or with the assistance of private counsel. See Widgins, supra at 818. Accordingly, on October 18, 2013, this Court issued an order directing Attorney Cooper to do so, and to file a copy of the notification with this Court within ten days of said order. See Per Curiam Order, 10/18/13, at ¶ 3. On October 22, 2013, Attorney Cooper filed a copy of the letter he had sent to Appellant on October 11, 2013, properly advising him of the right to proceed pro se or with the assistance of private counsel. Attorney Cooper further indicated that he sent a second copy of this letter to Appellant following this Court's October 18, 2013 directive. See Letter from Attorney Cooper, 10/22/13. Appellant did not respond to Attorney Cooper's petition to withdraw.
On appeal, Attorney Cooper raises the following issue on Appellant's behalf.
[1.] Did the [PCRA c]ourt err when it dismissed both the [Appellant's] pro se PCRA petition and counsel's amended PCRA petition without a hearing on March 11, 2013?
Turner/Finley Brief at iv.
"Our review of a PCRA court's decision is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error." Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation omitted). "[Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level." Id. In order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated nor waived. 42 Pa.C.S.A. § 9543(a)(3). "The PCRA court's credibility determinations, when supported by the record, are binding on this Court." Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted). "However, this Court applies a de novo standard of review to the PCRA court's legal conclusions." Id.
Prior to considering Appellant's argument, we must review Attorney Cooper's request to withdraw from representation. In Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), our Supreme Court reiterated the level of review necessary to secure permission to withdraw from representation pursuant to Turner/Finley. The Pitts Court stated the following requirements.
1) A "no-merit" letter by PC[R]A counsel detailing the nature and extent of his review;
2) The "no-merit" letter by PC[R]A counsel listing each issue the petitioner wished to have reviewed;
3) The PC[R]A counsel's "explanation", in the "no-merit" letter, of why the petitioner's issues were meritless[.]
Id. at 876 (citation omitted).
"Counsel must also send to the petitioner: (1) a copy of the 'no-merit' letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel." Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (citation omitted).
[W]here counsel submits a petition and no-merit letter that do satisfy the technical demands of Turner/Finley, the court - trial court or this Court -must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief. By contrast, if the claims appear to have merit, the court will deny counsel's request and grant relief, or at least instruct counsel to file an advocate's brief.
Id. (internal citation omitted).
Herein, we conclude that Attorney Cooper's request to withdraw complied with the requirements of Turner/Finley. Specifically, Attorney Cooper's "Amended Brief" detailed the nature and extent of his review. In preparing said filing, Attorney Cooper addressed Appellant's underlying claim that his trial counsel was ineffective for failing to raise a Batson challenge during voir dire, and determined that the issue lacked merit. Thereafter, Attorney Cooper explained why the PCRA court properly dismissed Appellant's pro se and amended petitions without an evidentiary hearing. Finally, as discussed, Attorney Cooper served Appellant with a copy of his request to withdraw and advised Appellant that, if he was permitted to withdraw, Appellant had the right to proceed pro se or with privately retained counsel. Thus, we conclude that Attorney Cooper's request for leave to withdraw from representation satisfied the constraints of Turner/Finley. We must now conduct our own independent review as to whether Appellant's contention is without merit.
The crux of Appellant's argument on appeal is that the PCRA court erred in dismissing his PCRA petitions without an evidentiary hearing because he failed to provide the PCRA court with a full and complete record demonstrating the alleged Batson violation that his trial counsel was purportedly ineffective for failing to raise. Turner/Finley Brief at 3-5; see also PCRA Court Opinion, 4/16/13, at 6-9.
Preliminarily, we note that a PCRA petitioner is not automatically entitled to an evidentiary hearing.
[T]he right to an evidentiary hearing on a post-conviction petition is not absolute. It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (internal citations omitted).
As noted, this case concerns whether Appellant met the requirements for proving a Batso n violation at the post-conviction stage. Our Supreme Court has continually recognized that to prove a Batson claim, the moving party must "provide a full and complete record demonstrating the alleged violation." Commonwealth v. Sepulveda, 55 A.3d 1108, 1132 n.23 (Pa. 2012) (citations omitted). Specifically, the movant "must make a record … identifying the race of all the venirepersons removed by the [opposing party], the race of the jurors who served[, ] and the race of the jurors acceptable to the [opposing party] who were stricken by the [movant]." Commonwealth v. Washington, 927 A.2d 586, 609 (Pa. 2007).
Batson and its progeny established a three-part inquiry for evaluating a claim of racial discrimination in jury selection.
[T]he [movant] has to initially establish a prima facie showing that the circumstances give rise to an inference that the [opposing party] struck one or more prospective jurors on account of race. If the prima facie showing is made, the burden shifts to the [opposing party] to articulate a race-neutral explanation for striking the juror(s) at issue. The trial court ultimately makes a determination of whether the [movant] has carried [the] burden of proving purposeful discrimination.
Commonwealth v. Sanchez, 36 A.3d 24, 44 (Pa. 2011), cert. Denied, Sanchez v. Pennsylvania, 133 S.Ct. 122 (2012).
Furthermore, "[w]hen there is no Batson objection during jury selection, " as is the case here, "a post-conviction petitioner may not rely on a prima facie case under Batson, but must prove actual, purposeful discrimination by a preponderance of the evidence ... in addition to all other requirements essential to overcome the waiver of the underlying claim." Sepulveda, supra at 1132 n.23, citing Commonwealth v. Uderra, 862 A.2d 74, 86 (Pa. 2004).
In the instant matter, Appellant raised the issue of whether the Commonwealth had engaged in actual, purposeful racial discrimination during the jury selection process in his amended PCRA petition. As a result, the PCRA court ordered Appellant to provide a full and complete record demonstrating the alleged Batson violation. See PCRA Court Order, 1/10/13. The PCRA court further cautioned Appellant that his failure to comply would result in the denial of his request for a hearing. See id. As discussed, in lieu of a formal Batson record, Appellant responded to the PCRA court's directive by alleging the following in support of his Batson claim.
No blacks no hispanish [sic] or others was a choice or select for the jury panel.
Turner/Finley Brief at 5, citing Appellant's Letter, 2/7/13, Exhibit B.
Upon review, we agree with the PCRA court that Appellant has failed to set forth any credible evidence that his underlying Batson claim is of arguable merit. Notably, Appellant's petitions and his subsequent letter to the PCRA court clearly fail to satisfy the PCRA court's request for a full and complete Batson record. Specifically, Appellant fails to identify the race of the potential venirepersons who were removed by the Commonwealth or his own trial counsel, and makes nothing more than a scant reference to the racial composition of the individuals who did, in fact, serve on his jury. See Washington, supra. Moreover, Appellant has also failed to prove "actual, purposeful discrimination" on the part of the Commonwealth. Sepulveda, supra. As the PCRA court noted in its opinion, there is no evidence in the jury selection transcript that indicates "racial bias" on the part of the Assistant District Attorney in his questioning of potential jurors. PCRA Court Opinion, 4/16/13, at 7, referencing N.T., 12/1/10, at 3-53. We further agree with the PCRA court that, "the record reflects race-neutral reasons for the prosecutor to strike each of the jurors he peremptorily challenged, and there was no indication of unconstitutional bias." Id.
Based on the foregoing, we discern no error on the part of the PCRA court in dismissing Appellant's PCRA petitions without a hearing. Accordingly, we affirm the PCRA court's April 16, 2013 order and grant Attorney Cooper's petition to withdraw.
Order affirmed. Petition to withdraw as counsel granted.