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Commonwealth v. Lee

Superior Court of Pennsylvania

February 24, 2014



Appeal from the PCRA Order May 10, 2013 in the Court of Common Pleas of Erie County, Criminal Division at No: CP-25-CR-0001873-2011 ]




Thomas Edward Lee (Appellant) appeals from the May 10, 2013 order denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm in part, vacate in part, and remand for proceedings consistent with this memorandum.

On June 17, 2011, around 6: 00 p.m., Appellant entered a CVS store located in Erie County. He was in the store for a short period of time before he approached A.B., who was employed at the store as a cashier.[1] Appellant said to A.B.: "Give me all your cash." N.T., 11/ 17/ 2011, at 48. As she proceeded to do so, he stated: "Faster, faster." Id. at 49. Appellant also displayed a knife with a black handle. After giving Appellant the money, Appellant stated to A.B.: "Hey, you're a smart girl." Id. at 50. Appellant left the store. A.B. called 911 and also told John White, the store manager, about the incident. Police responded to the scene, and A.B. provided a description of Appellant. White turned over the surveillance video to the police.

Three days later, on June 20, 2011, Officer Donovan Rounds saw Appellant entering a Country Fair store. He recognized Appellant from still pictures that had been taken from the surveillance video and distributed to the Erie police force. Officer Rounds requested Appellant's identification, and Appellant asked if he could go into the store to buy a cup of coffee. The officer consented and watched as Appellant entered the store's bathroom. Officer Rounds called for back-up while waiting outside the store.

Officer Christian Reynolds arrived and, upon viewing Appellant, agreed that he fit the description of the perpetrator at CVS. After Appellant left the store, he was arrested and transported to the police station. Police recovered $220 in cash from Appellant. Approximately 20 to 30 minutes after arresting Appellant, Officer Reynolds returned to the Country Fair store, and found a knife inside a garbage can in the restroom.

On June 24, 2011, Detective Christopher Lynch asked A.B. come to the police station to give a statement and identify Appellant. Detective Lynch created a photo array that included Appellant, along with seven other individuals who were of the same gender, race, age, and description. A.B. immediately identified Appellant by circling his picture. Id. at 57-58.

Appellant was charged with numerous offenses related to the June 17, 2011 incident. On September 28, 2011, counsel for Appellant filed an omnibus pre-trial motion, which included a motion to suppress. Specifically, Appellant asserted that A.B.'s identification of Appellant was "highly tainted" and "unduly suggestive" as a newspaper article with Appellant's picture had been published on June 22, 2011, two days before A.B. identified Appellant from the photo array.

On November 3, 2011, a suppression hearing was held. On that date, Appellant filed an am ended omnibus pre-trial motion asserting a violation of Appellant's Sixth Amendment right to counsel because although counsel had been retained, [2] she had not been informed that A.B. had been asked to identify Appellant from a photo array.

The suppression court concluded that Appellant's late-filed, amended suppression motion would not be considered. N.T., Suppression Hearing, 11/ 3/ 2011, at 3. At the suppression hearing, A.B. testified that she did not see the newspaper article with Appellant's photo. Id. at 5-6. A.B. also identified Appellant at the hearing. Id. at 6. The suppression court found A.B.'s testimony credible, and concluded that the identification was not tainted and Appellant's constitutional rights were not violated.

Appellant was tried before a jury on November 17, 2011. At trial, A.B. identified Appellant as the individual who came into the CVS and robbed her on June 17, 2011. N.T., 11/ 17/ 2011, at 52. The jury convicted Appellant of robbery, theft by unlawful taking, and possession of an instrument of crime. On January 11, 2012, Appellant was sentenced to 25 to 50 years' incarceration. At sentencing, the trial court concluded that Appellant qualified as a recidivist pursuant to 42 Pa.C.S. § 9714, as he had been convicted of several prior robberies.

Appellant filed a timely post-sentence motion, which was denied by the trial court. He filed a timely notice of appeal asserting that the trial court erred in admitting into evidence the knife that was found in the bathroom of the Country Fair store. A panel of this Court held that the admission of the knife, if error, was harmless error based on "the uncontested and uncontradicted evidence of Appellant's identification[ .] " Commonwealth v. Lee, 64 A.3d 30 (Pa.Super. 2012) (unpublished memorandum at 9).

On February 6, 2013, Appellant filed a timely pro se PCRA petition alleging numerous issues related to the ineffective assistance of counsel. On February 7, 2013, Attorney William Hathaway was appointed to represent Appellant. He filed a supplemental PCRA petition on March 18, 2013, incorporating both the February 6, 2013 petition and a supplement filed pro se by Appellant on March 6, 2013.[3] On April 19, 2013, the PCRA court filed an opinion and order pursuant to Pa.R.Crim.P. 907 stating all of its reasons for concluding that Appellant was not entitled to a hearing. On May 9, 2013, Appellant filed a pro se response to the Rule 907 notice. On May 10, 2013, the PCRA court entered an order denying Appellant PCRA relief.

On May 23, 2013, Appellant filed a pro se notice of appeal and pro se "Petition for Waiver of Counsel and Surrender of Case Documents" with the PCRA court. Counsel for Appellant also filed a timely notice of appeal. On June 3, 2013, the PCRA court conducted a hearing to ensure Appellant's waiver of his right to counsel on appeal was knowing and voluntary. After the hearing, the PCRA court concluded that Appellant "knowingly, voluntarily, and intelligently waived his right to appellate counsel after being fully inform ed of his right to representation." Order, 6/ 3/ 2013.[4]

On appeal, Appellant presents numerous issues for our review, which we have re-ordered for ease of disposition.

[ 1.] Whether [ Appellant] was [ afforded] ineffective assistance of counsel in that trial counsel failed to assert an objection on the record in specific regard to the process engaged in by the trial court to determine the admissibility of the knife into evidence.
[ 2.] Whether trial counsel was ineffective in her failure to raise an objection to the Commonwealth's Prosecutorial Misconduct in her misstating/ misleading the evidence, during closing arguments.
[ 3.] Whether trial counsel was ineffective when she failed to timely move to suppress the illegal June 24, 2011 post-arrest police photographic identification conducted in violation of [ Appellant's] (right to counsel's presence at the critical stage of the photographic line-up identification) Pennsylvania Constitution Article 1, Section 9.
[ 4.] Whether [ Appellant's] right to effective assistance of counsel was violated in that trial counsel's deficient failure to address at the November 3, 2011 Omnibus Pretrial hearing (Motion to Suppress Identification) claim s concerning the illegally conducted June 24, 2011 "highly suggestive" and "unduly tainted" post-arrest police photo array identification, including police misconduct.
[ 5.] Whether trial counsel was ineffective for failing to request and the court's failure to give, sua sponte, a jury instruction that the alleged witness identification against [ Appellant] should be viewed with caution and could be disregarded because of the post-arrest improper June 24, 2011 police photographic identification violated [ Appellant's] Pennsylvania Constitutional Article 1, Section 9 right to due process and a fair t rial by jury.
[ 6.] Whether direct appeals counsel, Emily Mosco, was ineffective for failure to raise and argue on [ Appellant's] direct appeal the exhausted and properly preserved claims concerning the trial court's abuse of discretion in permitting the Commonwealth to request [ Appellant] to stand directly before the jury and demonstrate wearing the hat and sunglasses allegedly worn by the perpetrator.
[ 7.] Whether direct appeals counsel, Emily Mosco, afforded [ Appellant] ineffective assistance of counsel in her inaccurately citing the trial record as to the amount stolen from the CVS store. Thereby, inviting and permitting the Superior Court to accept that amount and then predicate its decision in significant part on the factual record.
[ 8.] Whether trial and direct appeal counsel were ineffective for not challenging the applicability of 42 Pa.C.S.A. § 9714(a)(2) which resulted in an illegal sentence.
[ 9.] Whether appointed PCRA counsel, William J. Hathaway, was ineffective for failing to am end [ Appellant's] pro se [ PCRA] Petition and then failed to respond to the [ PCRA court's] Pa.R.Crim .P. 907(1) Notice of Intention to dismiss: which, rendered the proceedings for all practical purposes, uncounseled and in violation of the representation requirements.
[ 10.] Whether the PCRA court erred in denying [ Appellant's] PCRA petition without an evidentiary hearing when all claim s involve ineffective assistance of counsel, and no record has been made for review.
[ 11.] Whether [ Appellant's] Sixth Amendment to the United States Constitution, right to effective assistance of counsel, was violated for the cum ulative ineffective assistance of counsel, which so undermined the truth determining process that no ...

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