February 27, 2014
COMMONWEALTH OF PENNSYLVANIA
HOWARD MILLER, Appellant
Appeal from the PCRA Order, October 15, 2012, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-1004711-2004
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND OTT, JJ.
FORD ELLIOTT, P.J.E.
Howard Miller appeals from the order of October 15, 2012, dismissing his PCRA petition. We affirm.
This court summarized the facts of this matter on direct appeal as follows:
Miller was involved in a romantic relationship with the victim's mother that ended in January 2003. He continued to call her for months after the relationship ended, forcing her to change her cell phone number. On October 26, 2003, at approximately 11:30 p.m., Miller called her house and her fifteen-year-old daughter, the victim, answered the phone. The victim explained that her mother was not home and her great-grandmother was asleep. She went on to tell Miller that she wanted to leave the house and stay somewhere else because her mother was angry with her. Miller responded that she could stay with him, and instructed her to pack her things.
About half-an-hour later, Miller arrived at the victim's house to pick her up. Miller waited in the victim's mother's bedroom while the victim showered and got dressed. After she was dressed, the victim went into her mother's bedroom to get some lotion. She saw Miller lying in her mother's bed under the covers. Miller began wrestling with her and eventually pulled her onto the bed. She saw that he was wearing nothing but underwear and asked him to let her up.
Instead of releasing her, Miller got on top of the victim and removed her clothes. He put his fingers in her vagina and told her to kiss him, which she refused to do. Miller then began licking her vagina and told [the] victim that he always "wanted" her and not her mother. N.T., Trial, 2/8/06, at 55. Miller then inserted his penis in the victim's vagina. He told her that he loved her and instructed her to tell him the same. The victim responded that if he loved her, he would not be doing what he was doing. Miller proceeded to punch her on the left side of her face. The victim did not scream because she was afraid of what Miller would do to her and her great-grandmother. When he was done raping her, Miller grabbed the victim by the hair and said, "[Y]ou ain't a snitch, are you?" and "[I]f you tell anyone I will kill you." Id., at 56.
After Miller left the house, the victim called her maternal grandmother, Gail Fordham, and told her that she had been raped by Miller. Ms. Fordham immediately called the police. Subsequently, Miller was arrested and charged with numerous crimes stemming from the incident.
A three-day jury trial commenced on February 7, 2006. The bulk of the Commonwealth's evidence consisted of the victim's testimony and that of her grandmother, Ms. Fordham. On February 9, 2006, Miller was found guilty of rape, involuntary deviate sexual intercourse, aggravated indecent assault, and corruption of minors. This timely appeal followed.
Commonwealth v. Miller, 970 A.2d 472 (Pa.Super. 2009), unpublished memorandum filed February 11, 2009 at 1-3, appeal denied, 602 Pa. 677, 981 A.2d 218 (2009).
Appellant raised a single issue on direct appeal, whether he was entitled to a new trial on the basis of the trial court's questioning of the victim's grandmother, which appellant claimed introduced evidence of appellant's status as an inmate in a correctional facility, and further elicited a direct reference to his general "bad character." Id. at 3-4. This court found the matter waived as appellant did not preserve it in the trial court by requesting a mistrial. Id. at 4-5. However, we went on to state that even if the issue had been properly preserved for our review, we would find it to be meritless. Id. at 5. Fordham merely said that she worked for the Department of Corrections and in no way implied that appellant was an inmate. Id. In addition, she did not directly impugn appellant's character, and the trial court immediately sustained appellant's objections and issued a cautionary instruction to the jury. Id. at 6. Therefore, we found the claim to be meritless. Id.
On April 12, 2010, appellant filed a timely pro se PCRA petition. Counsel was appointed, and filed an amended petition on appellant's behalf, requesting reinstatement of his post-sentence and direct appeal rights nunc pro tunc. On October 15, 2012, following Rule 907 notice, appellant's petition was dismissed. This timely appeal followed. Appellant was not directed to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.; however, on June 25, 2013, the PCRA court filed an opinion explaining the reasons for its dismissal of appellant's petition.
Appellant has raised the following issues for this court's review:
I. Did the trial court err in not reinstating the appellant's right to file an appeal nunc pro tunc from the judgment of sentence imposed in this matter?
II. Did the trial court err in not reinstating the appellant's right to file post sentence motions nunc pro tunc?
Appellant's brief at 2.
This Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795, 799 n. 2 (2005). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).
To prevail on a claim alleging counsel's ineffectiveness under the PCRA, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without a reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness, i.e. there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999); Commonwealth v. Douglas, 537 Pa. 588, 645 A.2d 226, 230 (1994).
Commonwealth v. Bracey, 568 Pa. 264, 276, 795 A.2d 935, 942 (2001).
In his first issue on appeal, appellant argues that he is entitled to reinstatement of his direct appeal rights nunc pro tunc where all issues were waived on appeal. (Appellant's brief at 6.) As recounted above, this court found the only issue raised on appeal to be waived where appellant failed to request a mistrial. According to appellant, trial counsel's failure to properly preserve the issue for appeal is per se ineffectiveness and prejudice is presumed. (Id.) We disagree.
In Commonwealth v. Mikell, 968 A.2d 779 (Pa.Super. 2009), appeal denied, 604 Pa. 688, 985 A.2d 971 (2009), this court found all claims waived on direct appeal, including a claim of prosecutorial misconduct which was waived at trial. Id. at 780. The appellant filed a PCRA petition seeking reinstatement of his direct appeal rights nunc pro tunc, which was dismissed. This court affirmed, finding that the appellant was not entirely denied his right to a direct appeal:
Here, in his role as appellate counsel, Appellant's counsel took all the steps necessary for this Court to review at least one of Appellant's direct appeal claims: the claim of prosecutorial misconduct. This Court found that claim to have been waived at trial and did not review its merits; however, Appellant still enjoyed appellate review of that claim. Accordingly, Appellant was not denied an appeal. See Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1128-29 (2007) (finding failure to raise objection to sentence at lower court level did not entirely foreclose appellate review of the decision to revoke probation and to recommit defendant). Appellant is therefore not entitled to reinstatement of his direct appeal rights.
Id. at 782. See also Commonwealth v. Reed, 601 Pa. 257, 275, 971 A.2d 1216, 1226 (2009) ("the filing of an appellate brief, deficient in some aspect or another, does not constitute a complete failure to function as a client's advocate so as to warrant a presumption of prejudice under [U.S. v. Cronic, 466 U.S. 648 (1984)]."). Cf. Halley, supra (failure to file a Rule 1925(b) statement on behalf of an accused seeking to appeal his sentence, resulting in waiver of all claims, constitutes an actual or constructive denial of counsel and entitles the accused to a direct appeal nunc pro tunc regardless of his ability to establish the merits of the waived issues); Commonwealth v. Franklin, 823 A.2d 906 (Pa.Super. 2003) (reinstatement of direct appeal rights was proper where the appellant's brief on direct appeal was so defective that this court found all issues to be waived); Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999) (failing to file a requested direct appeal denies the accused the assistance of counsel and the constitutional right to a direct appeal, and the accused is entitled to reinstatement of his direct appeal rights).
Instantly, appellate counsel perfected a direct appeal. While this court ultimately found the sole issue raised on appeal to be waived, appellant still enjoyed appellate review of his claim, and therefore was afforded a direct appeal. Furthermore, this court went on to state that even if appellant had properly preserved the issue for our review, we would find it meritless. Miller, supra at 5. We concluded that Fordham in no way implied that appellant was ever an inmate, and did not directly communicate to the jury that appellant had bad character. Id. at 5-6. We also found that appellant was not prejudiced because the trial court immediately sustained his objections and issued a cautionary instruction to the jury. Id. at 6.
Our analysis regarding Fordham's testimony constitutes an alternative holding supporting the result reached. See Commonwealth v. Markman, 591 Pa. 249, 282, 916 A.2d 586, 606 (2007) ("Where a decision rests on two or more grounds equally valid, none may be relegated to the inferior status of obiter dictum."), quoting Commonwealth v. Swing, 409 Pa. 241, 245, 186 A.2d 24, 26 (1962). See also Markman, supra, 591 Pa. at 282 n.15, 916 A.2d at 606 n.15, citing Reynolds-Penland Co. v. Hexter & Lobello, 567 S.W.2d 237, 241 (Tex.Civ.App. 1978) ("explaining that an 'alternative holding' exists where the appellate court 'rests its decision under the facts presented on two separate, but equally valid, grounds'"). Accord Reed, 601 Pa. at 265, 971 A.2d at 1220 (where this court determined that Reed's claims were waived, and even if the claims had not been waived, they were without merit, and explained the basis for our conclusions, our holding that Reed's claim regarding the admission of prior bad acts testimony was meritless was a valid holding that constituted the law of the case). Appellant would be unable to demonstrate trial counsel was ineffective for failing to request a mistrial where this court has already examined the underlying issue and found it to be without merit.
Turning to appellant's second issue, appellant claims he is entitled to file post-sentence motions nunc pro tunc to challenge the weight of the evidence and the discretionary aspects of sentencing. (Appellant's brief at 8.) Appellant complains that he would be unable to raise these issues on direct appeal because they were not preserved in post-sentence motions. (Id.) Appellant cites Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (2003) (counsel's conduct constituted a constructive denial of counsel warranting a presumption of prejudice where counsel failed to file a requested petition for allowance of appeal, thereby depriving the client of the right to seek discretionary review).
In Reaves, supra, our supreme court held that counsel's failure to file post-sentence motions at most "narrowed the ambit" of the subsequent appeal and did not constitute prejudice per se. Rather, the petitioner must satisfy the three-prong actual prejudice standard. Reaves, 592 Pa. at 150, 923 A.2d at 1129.
Whether VOP [(violation of probation)] counsel can be deemed ineffective, then, depends upon whether appellee has proven that a motion to reconsider sentence, if filed . . . would have led to a different and more favorable outcome at VOP sentencing. In this context, the only way the proceeding would have been more favorable would be if counsel's objection secured a reduction in the sentence.
Id. at 154, 923 A.2d at 1131-1132. Ultimately, the Reaves court found that the petitioner failed to prove actual prejudice where the PCRA judge, who was the same judge who initially sentenced the petitioner and then revoked probation and imposed the VOP sentence, made clear during PCRA proceedings that he would have imposed the same sentence. Id. at 155, 923 A.2d at 1132.
Instantly, appellant has not even alleged that he actually requested counsel file a post-sentence motion on his behalf. Moreover, appellant has failed to assert how the issues he purportedly wanted to raise in such motion, weight of the evidence and discretionary aspects of his sentence, have arguable merit. As such, appellant falls well short of demonstrating counsel's ineffectiveness. The PCRA court did not err in dismissing appellant's petition.