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Commonwealth v. Lee

Superior Court of Pennsylvania

February 24, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
THOMAS EDWARD LEE, Appellant

NON-PRECEDENTI AL DECISION

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 ]

BEFORE: FORD ELLIOTT, P.J.E., WECHT, and STRASSBURGER [*] , JJ.

MEMORANDUM

STRASSBURGER, J.

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 reliable adjudication of guilt or innocence could have taken place.

Appellant's Brief at 3-6.

We begin by noting that in reviewing the propriety of an order granting or denying PCRA relief, this Court is limited to determining whether the evidence of record supports the determination of the PCRA court, and whether the ruling is free of legal error. Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003). To be eligible for relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence that the conviction or sentence in question arose from one or more of the errors enunciated in section 9543(a)(2), and that the issues raised have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An issue is 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 … it has been raised and decided in a proceeding collaterally attacking the conviction or sentence." 42 Pa.C.S. § 9544(a) (2), (3).

In reviewing the PCRA court's denial of Appellant's claim s of ineffective assistance of counsel, we bear in mind that counsel is presumed to be effective. Com monwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). To overcome this presumption, Appellant bears the burden of proving the following: "(1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance." Id. Appellant's claim will be denied if he fails to meet any one of these three prongs. Id.

First, Appellant argues the PCRA court erred in denying relief on the basis that trial counsel was ineffective for failing to object to the procedure which the trial court used to determine if the knife was admissible. Appellant's Brief at 15-18. "It is well- settled that a PCRA petitioner cannot obtain review of claim s that were previously litigated by presenting new theories of relief, including allegations of ineffectiveness, to relitigate previously litigated claims." Commonwealth v. Bond, 819 A.2d 33, 39 (Pa.Super. 2002). The only issue litigated on direct appeal was whether the knife should have been admitted as evidence at trial. On direct appeal, a panel of this Court concluded that the knife's admission, if error, was harm less error.

[ T]he doctrine of harmless error is a technique of appellate review designed to advance judicial economy by obviating the necessity for a retrial where the appellate court is convinced that a trial error was harmless beyond a reasonable doubt. I ts purpose is premised on the well-settled proposition that [ a] defendant is entitled to a fair trial but not a perfect one.

Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012), cert. denied, 133 S.Ct. 2336 (U.S. 2013) (internal quotation omitted). "Error is harm less if … the properly admitted and uncontradicted evidence was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict." Commonwealth v. Hardy, 918 A.2d 766, 777 (Pa.Super. 2007).

Here, a panel of this Court held that the admission of the knife, even if error, did not prejudice Appellant or affect the outcome of the trial. Accordingly, we agree with the PCRA court that Appellant is not entitled to relief on this issue as Appellant cannot show that he was prejudiced by counsel's performance.

I n Appellant's second issue, he argues that counsel was ineffective for failing to object to the prosecutor's closing argument where a reference to the knife's appearance was made. Appellant's Brief at 28-29. The prosecutor stated: "Ladies and gentlemen, the knife is silver with a black handle. And if you look very closely you can see a little bit of red on it." N.T., 11/ 17/ 2011, at 178-179. Appellant argues that the statement was prejudicial because that red m ark was not visible in the surveillance video. Appellant's Brief at 28.

"Comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant such that they could not weigh the evidence objectively and render a true verdict." Commonwealth v. Copenhefer, 719 A.2d 242, 314 (Pa. 1998). Prosecutors are "accorded reasonable latitude and may employ oratorical flair in arguing [ their] version of the case to the jury." Commonwealth v. Weiss, 776 A.2d 958, 969 (Pa. 2001).

Here, we point out that the prosecutor's comment that the knife had red on it was not prejudicial. The fact that the jury could not see any red on the knife in the surveillance video was irrelevant to the prosecutor's ability to make that comment. In fact, the crux of Appellant's argument is that the use of the knife during closing com pounded the trial court's error in admitting it. However, we have already concluded that the admission of the knife was harmless error. Thus, we conclude Appellant has failed to demonstrate that this issue has arguable merit, and therefore counsel could not be ineffective for failing to object.

We consider together Appellant's next three issues, all of which relate to identification. First, Appellant contends that he was entitled to counsel when, after his arrest, A.B. identified Appellant from a photo array, and trial counsel was ineffective for failing to raise this issue in a timely manner. Appellant also contends that appellate counsel was ineffective for failing to raise the issue of the allegedly tainted, post- arrest photographic array identification on direct appeal. Finally, Appellant contends that trial counsel was ineffective for failing to request a jury instruction to view the identification testimony with caution.

A suspect, who has been arrested, has the right to be represented by counsel at a photographic array. See Commonwealth v. Ferguson, 475 A.2d 810, 812 (Pa.Super. 1984). There is no question that this did not occur, and Appellant's rights were violated. However, even where an appellant's right to counsel is violated, the victim is permitted to make an in court identification as long as the Commonwealth shows that the identification had an independent origin. Commonwealth v. Whiting, 266 A.2d 738, 740 (Pa. 1970).

The factors to be considered in determining whether the in-court identification testimony … was purged of any taint stemming from the police station confrontation are: (1) The witnesses' opportunity to observe the criminal act; (2) any discrepancy between pre-confrontation descriptions and the appellant's actual appearance; (3) any identification of anyone other than the appellant; (4) any failure to identify appellant; (5) the lapse of time between the robbery and the confrontation; (6) the witnesses' degree of attention; and, (7) the degree of certainty in identifying the appellant.

Commonwealth v. Ivy, 448 A.2d 553, 555 (Pa.Super. 1982).

Instantly, A.B. had ample opportunity to observe Appellant during the robbery. She testified that she observed Appellant come into the store and bring three pieces of candy to her register. She rang up the purchase and Appellant handed her a dollar bill. When she went to give him change, he told her to leave her drawer open and give her all of the money. She testified that Appellant was in the store for about five minutes in total. Furthermore, A.B. positively identified Appellant at both the suppression hearing and trial. Thus, we conclude that A.B.'s observation of Appellant during the robbery itself was of independent origin and purged the unconstitutional photographic array identification of any taint.[5] Accordingly, trial counsel was not ineffective for failing to raise this issue in a timely manner in the suppression motion, as Appellant was not prejudiced by it. Moreover, appellate counsel was not ineffective for failing to pursue this issue on direct appeal, as Appellant suffered no prejudice from counsel's failure to raise an issue about the photo array.

We now consider whether trial counsel was ineffective for failing to request a jury instruction pursuant to Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). Appellant's Brief at 23-26. Appellant relies on testimony A.B. provided at his preliminary hearing where she testified "that she was not able to view the robbery suspect other than the bottom part of his face and sideburns." Id. at 24.[6]

A Kloiber charge instructs the jury that an eyewitness' identification should be viewed with caution where the eyewitness: (1) did not have an opportunity to clearly view the defendant; (2) equivocated on the identification of the defendant; or (3) had a problem making an identification in the past. However, identification testimony need not be received with caution where it is positive, unshaken, and not weakened by a prior failure to identify.

Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa.Super. 2008) (citation and quotation marks omitted). It is clear that this claim is without merit, as the trial court gave an instruction consistent with Kloiber. The trial court instructed the jury as follows.

Now, this is a case of identification. I want to go through with you some special instructions on identification that may help you in assessing the case.
I n his testimony, or in her testimony, [ A.B.] identified the defendant as the person who committed the crime. In evaluating her testimony, in addition to the other instructions I gave you for judging the testimony and credibility of witnesses, you should consider the following additional factors.
First, did she have a good opportunity to observe the perpetrator of the offenses. Second, was there sufficient lighting for her to make her observations. Third, was she close enough to the individual to notice his facial and other physical characteristics as well as clothing he was wearing. Fourth, has she made a prior identification of the defendant as the perpetrator of the crimes. Fifth, was the identification positive or was it qualified by any hedging or inconsistencies. And lastly, did she identify anyone else during the course of the case as the perpetrator.
In considering whether or not to accept her testimony you should consider all the circumstances under which her identification was made. Furthermore, you should consider all evidence relative to the question of who committed the crime including testimony of any witness from which identity, or nonidentity, of the perpetrator of the crime may be inferred.

N.T., 11/ 17/ 2011, at 186-187. As this instruction is a more than adequate Kloiber instruction, we conclude Appellant is not entitled to relief on this issue.

We now consider whether appellate counsel was ineffective for failing to pursue on direct appeal an argument that the trial court erred in permitting the Commonwealth to have Appellant stand before the jury wearing the hat and sunglasses allegedly worn by the perpetrator. Appellant's Brief at 26-27. Specifically, Appellant argues that even though the hat and sunglasses belonged to him, "this procedure violated his constitutional rights, lacked probative value and inflamed the passion of the jury" . Id. at 27.

We point out that trial counsel objected to this demonstrative evidence; thus, the issue was preserved for direct appeal. The following discussion occurred at sidebar.

[ Commonwealth]: [ C] an I have [ Appellant] put the hat and glasses on for the jury? I 'd like to do that in front of the jury.
The Court : It's permissible.
[ Commonwealth]: Thank you.
The Court: You can ask him to come forward and he can be asked to put the hat and glasses on.
[ Commonwealth]: Correct .
The Court: He can be asked to do that.
[ Defense Attorney]: Your Honor, I would object. I mean, it is essentially him testifying but not testifying and basically testifying on behalf of the prosecution.
The Court: It's not. It's nontestimonial. He's basically being used as demonstrative evidence. It's permissible in a case. It's not really testimony 'cause it's not communicating anything. You can ask a defendant to put on clothing, so it's --you can ask the defendant to be brought up and displayed in front of a jury. So, yeah, as to that, I will allow. Objection is noted and overruled.

N.T., 11/ 17/ 2011, at 153.

The Commonwealth then had Appellant stand up in front of the jury and put on the hat and sunglasses. Id. at 155. Direct appeal counsel did not pursue this issue on direct appeal; and, Appellant now suggests she was ineffective for not doing so. The PCRA court reiterated that Appellant's "act of donning a hat and sunglasses during trial was not testimonial[; rather, ] this form of demonstrative evidence has long been permitted." PCRA Court Opinion, 4/ 19/ 2013, at 11-12. We agree.

A wide discretion is vested in the trial judge in permitting demonstrations or experiments to be made in the presence of the jury. In Commonwealth v. Kenon, 333 Pa.Super. 366, 482 A.2d 611 (1984), for example, the defendant was ordered to try on, in the presence of the jury, a hooded sweatshirt and fatigue jacket, which had allegedly been worn by the robber. In holding that such demonstration was permissible, the Superior Court reasoned as follows:
First, inasmuch as demonstrative evidence is not testimonial it does not activate the right against self-incrimination. Secondly, courtroom exhibits of this type are left to the far-reaching discretion of the trial court; accordingly, appellate review is restricted.
The probative value of having appellant try on the clothing during trial outweighed potential prejudice. In pressing the identification issue, appellant compelled the Commonwealth to expend significant effort in substantiating the in-court identifications. The experiment displayed for the jury the extent to which appellant's head was covered by the hood. It also indicated whether the sweatshirt and jacket were properly fitted to appellant's body. We perceive no abuse of discretion in conducting a courtroom experiment for these purposes.

Commonwealth v. Thomas, 575 A.2d 921, 924-925 (Pa.Super. 1990) (citing Kenon, supra at 374, 482 A.2d at 615) (internal quotations citations omitted).

Appellant argued that he was not the person wearing the hat and sunglasses in the surveillance video. He also argued that A.B. could not properly observe the perpetrator as half of the perpetrator's face was covered by the hat and sunglasses. Thus, the issue of identification was key in this case, and there could be no abuse of discretion in having Appellant stand in front of the jury wearing the hat and sunglasses so that they could compare Appellant to the person in the surveillance video. Thus, based on the "restricted" appellate review of such issues, we cannot say that appellate counsel was ineffective for failing to pursue this issue on direct appeal.

We next consider whether appellate counsel was ineffective when in her appellate brief, "she misstated the actual amount stolen from the CVS store as $219[, ] which recitation was in contravention of the actual trial record and served to corroborate the Commonwealth's position and argument[ .] " Appellant's Brief at 29. He further claim s that this Court then adopted that erroneous amount in its memorandum.

Instantly, the CVS store manager, White, testified that the amount stolen was "between $212 and $215." See N.T., 11/ 17/ 2011, at 74. Detective Lynch testified that White told him the amount stolen was $219. Id., at 151. When Appellant was arrested, several days after the robbery, police recovered $220 from Appellant. Id.

Thus, even if appellate counsel stated that the amount stolen from the CVS was $219, we cannot see any error in such a statement where Detective Lynch testified that it was the amount. Moreover, whether or not counsel misstated the amount of cash stolen from the CVS is simply irrelevant in this case. As such, there is no arguable merit to Appellant's position that appellate counsel was somehow ineffective for using this number, and he is not entitled to relief.

We now consider whether the PCRA court erred in denying relief on Appellant's claim that his sentence is illegal. Appellant's Brief at 13-15. Appellant claim s that both trial counsel and direct appeal counsel were ineffective for failing to object to Appellant being sentenced as a recidivist pursuant to 42 Pa.C.S. § 9714(a)(2), when he should have only been sentenced under section (a)(1) of that statute.

That statute provides, in relevant part, as follows.

(a) Mandatory sentence.--

(1) Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Upon a second conviction for a crime of violence, the court shall give the person oral and written notice of the penalties under this section for a third conviction for a crime of violence. Failure to provide such notice shall not render the offender ineligible to be sentenced under paragraph (2).
(2) Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.

42 Pa.C.S. § 9714(a)(1) and (2).

The Commonwealth sought to sentence Appellant as a recidivist based upon the following applicable convictions arising from a series of robberies. On September 18, 1989, in Erie County, Appellant was sentenced at 3 separate docket numbers of qualifying counts of robbery. Two months later, on November 2, 1989, Appellant was sentenced in Allegheny County on another qualifying robbery charge. See Notice of Commonwealth's Intent to Seek Mandatory Minimum Sentence Pursuant to 42 Pa.C.S.A. § 9714(a)(2), 12/ 30/ 2011. Thus, the Commonwealth asserted that the Erie County sentence was Appellant's first strike, the Allegheny County sentence was his second strike, and now, his new Erie County sentence should be his third strike. The trial court agreed and sentenced Appellant accordingly as a third-strike offender.

The PCRA court concluded that the trial court did not err for the following reasons.

At the time of sentencing, [ Appellant] had prior convictions for a felony one Burglary (sentenced on 5/ 15/ 80); four counts of Robbery (sentenced in Erie County on 9/ 18/ 89 and treated as one offense under § 9714); and, two counts of Robbery (sentenced in Allegheny County on 11/ 02/ 89 and treated as one offense under § 9714). Despite [ Appellant's] argument to the contrary, the 1989 conviction in Allegheny and Erie Counties, which occurred on different dates and in separate venues, were separate occurrences and not part of a single episode or sentencing proceeding. Therefore, application of § 9714(a)(2) was clearly appropriate.

PCRA Court Opinion, 4/ 19/ 2013, at 12-13.

Appellant argues that the 1989 robbery convictions should have been treated together as a first strike. In Commonwealth v. Shiffler, 879 A.2d 185, 195 (Pa. 2005), our Supreme Court held that it is improper to sentence an appellant as a third-time offender where both prior strikes were sentenced at the same sentencing proceeding. Id. at 195 ("A construction of the statute that would treat appellant as a third-time offender under subsection (a)(2) would be particularly harsh in light of his single previous sentencing [ for three separate crimes] and single opportunity for reform ." (emphasis added)).

As to the recidivist philosophy, this and other Pennsylvania appellate courts have repeatedly recognized that, "the point of sentence enhancement is to punish more severely offenders who have persevered in criminal activity despite the theoretically beneficial effects of penal discipline." Particularly salient here is the implicit link between enhanced punishment and behavioral reform, and the notion that the former should correspondingly increase along with a defendant's foregone opportunities for the latter. Any other conception would ignore the rationale underlying the recidivist philosophy, i.e., that the most culpable defendant is " one, who after being reproved, 'still hardeneth his neck'." Just as the second-time offender enhancement under subsection (a)(1) is meant to punish a defendant more severely when that defendant has offended before and has been afforded an opportunity to reform, so too is the third-time offender enhancement under subsection (a)(2), which increases the minimum punishment to twenty-five years, obviously meant to punish a defendant more severely when he has already foregone two opportunities to reform him self. The generally recognized purpose of such graduated sentencing laws is to punish offenses more severely when the defendant has exhibited an unwillingness to reform his miscreant ways and to conform his life according to the law.

Commonwealth v. Arm strong, 74 A.3d 228, 240 (Pa.Super. 2013) (citing Shiffler, supra, at 195), appeal granted, __ A.3d __, 2014 WL 67734 (2014). "Thus, the Court, embracing a sequential approach to section 9714, determined that the appellant was only subject to a second-strike sentence, where he had multiple convictions which would each count as strikes, but had not been previously sentenced as a second-strike offender." Id. at 240-241.

In this case, even though Appellant's Allegheny County sentences occurred six weeks after his Erie County sentences, Appellant never had the opportunity to reform which is central to the recidivist philosophy. His Allegheny County crimes took place prior to his Erie County sentences. Accordingly, we agree with Appellant that all of the 1989 offenses should count as a first strike.

However, in its opinion, the PCRA court also relied upon a 1980 burglary conviction in support of its conclusion that Appellant was sentenced properly as a third-strike offender. See PCRA Court Opinion, 4/ 19/ 2013, at 12. Thus, even though the trial court may have relied on improper convictions in sentencing Appellant as a third-strike offender, Appellant's sentence may nonetheless be legal.

The pre-sentence investigation report reveals that Appellant was convicted of a felony one burglary in 1980. Under the recidivist statute, the only burglaries which qualify as crimes of violence subjecting an offender to the recidivist statute are those "defined in 18 Pa.C.S. § 3502(a)(1) (relating to burglary)[ .] " 42 Pa.C.S.§ 9714(g). Thus, in order for the 1980 burglary conviction to apply as a first-strike under the recidivist statute, it had to have met the criteria defined by 18 Pa.C.S. § 3502(a)(1).

Section 3502(a)(1) provides that a person commits the offense of burglary where he or she "enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense any person is present[ .] " Appellant argues on appeal that he did not burglarize a structure adapted for overnight accommodation with a person present. Appellant's Brief at 13. The certified record is incomplete with respect to the details of this 1980 burglary conviction, and the PCRA court does not offer any explanation for its reliance on it.

Accordingly, we vacate the portion of the PCRA court order with respect to Appellant's illegal sentencing claim, and rem and this case to the PCRA court for an evidentiary hearing to determine whether the 1980 burglary would qualify as a first strike pursuant to 42 Pa.C.S. § 9714(g). The PCRA court shall then enter a new order disposing of this portion of Appellant's PCRA petition. We also direct the PCRA court to be mindful of the potential implications of the decision of the United States Supreme Court in Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151 (2013). See also Commonwealth v. Lane, 81 A.3d 974 n.5 (Pa.Super. 2013) (noting that no Pennsylvania case has applied Alleyne to sentences enhanced solely by prior convictions).

Based on the foregoing analysis, Appellant's final three issues are moot. First, Appellant contends that PCRA counsel, William J. Hathaway, Esq. (Hathaway), was ineffective for failing to amend Appellant's PCRA petition and not responding to the PCRA court's 907 not ice. Appellant's Brief at 11-13. Appellant also argues that he was entitled to an evidentiary hearing on his ineffective assistance of counsel claims. Id. at 9-11. Finally, he claims that the overall cumulative effect of the aforementioned errors entitles him to a new trial. Id. at 31-32.

Because we have determined that the representation of neither trial nor appellate counsel was ineffective, the PCRA court did not err in denying Appellant a hearing on this matter. Moreover, PCRA counsel adequately represented Appellant's interests until Appellant electively sought his termination and decided to proceed pro se. Thus, there is no merit to the contention that PCRA counsel was ineffective for not responding to the PCRA court's Rule 907 notice. Finally, having determined that counsel was not ineffective, we conclude that there is no merit to a contention that the cumulative effect of any errors entitles Appellant to a new trial.

Order affirmed in part and vacated in part.

Case remanded for proceedings consistent with this memorandum.

Jurisdiction relinquished.

Judgment Entered.


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