February 28, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
JADI FREDERICK DAVIS Appellant
Appeal from the PCRA Order May 16, 2013 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000781-2011
BEFORE: MUNDY, J., OLSON, J., and STABILE, J.
Appellant, Jadi Frederick Davis, appeals from the May 16, 2013 orderdenying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Additionally, Appellant's counsel, Anthony Tamborino, Esquire (PCRA counsel), has filed, with this Court, a motion to withdraw as counsel together with a "Turner-Finley Brief, " averring Appellant's issues are without merit. After careful review, we affirm the denial of PCRA relief and grant PCRA counsel's motion to withdraw.
The PCRA court has summarized the factual circumstances of this case, as adduced at Appellant's trial as follows.
On October 16, 2010, at 12:08 am, Officer Joseph J. Bunty, of the Hanover Borough Police Department, was on patrol in his unmarked police vehicle. While traveling northbound on State Route 194, Officer Bunty observed a maroon vehicle traveling the opposite direction, at a high rate of speed. The posted speed limit was 25 miles per hour. Officer Bunty believed that the vehicle was going faster than the posted speed limit. Officer Bunty reversed his direction of travel and caught up to the vehicle, in the area of Mckinley Avenue.
Once behind the vehicle, Officer Bunty observed the car cross the double yellow center line near the Rutter's convenience store. After continuing to follow the car, Officer Bunty witnessed the vehicle cross the double yellow line near Stock Street. On both occasions, the front end of the vehicle clearly entered the opposite lane of travel, without the use of turn signals. Continuing to follow the vehicle, Officer Bunty viewed the car briefly enter a left turn only lane and then move quickly back into the right hand lane. Officer Bunty then activated his lights and sirens in an attempt to initiate a traffic stop.
Officer Bunty testified that the vehicle initially pulled to the side of the road, and then it pulled back onto the roadway and made a right turn on [N]orth Railroad Street. Once on [N]orth Railroad Street, the vehicle pulled to the side of the road and briefly paused, then it continued to the opposite side of the alley, finally coming to a complete stop near the curb. Officer Bunty made contact with the driver who presented an identification card bearing the name Jadi Davis, the Appellant in this matter. After engagement in conversation, Officer Bunty noticed that Appellant had glassy eyes, and slurred speech. Officer Bunty also smelled a strong odor of alcohol emanating from Appellant's person. Officer Bunty also testified that Appellant's clothes were disheveled and his fleece jacket appeared to be inside-out. Officer Bunty asked the Appellant if he had been drinking and he responded that he had. Officer Bunty then asked the Appellant to step out of his vehicle.
As the Appellant exited the vehicle, Officer Bunty observed a clear plastic baggy in the map pocket of the door, which contained a green vegetable matter, consistent with the street drug packaged as marijuana. Officer Bunty then asked Appellant if he would submit to field sobriety testing. Appellant refused to submit to field testing and requested a lawyer. At this time, Officer Bunty placed the Appellant into custody and transported him to the hospital in order to test Appellant's blood alcohol content. After being read Section 1547 of the Pennsylvania Vehicle Code, Appellant refused to sign the warning and then refused to submit himself to a chemical blood test.
While escorting the Appellant into the hospital, Officer Bunty witnessed him stumble and state, "l am not that intoxicated". Upon Appellant's release, Officer Bunty observed him stagger and bump into the door frame, as he exited the emergency department.
PCRA Court Opinion, 8/13/13, at 1-3 (internal citations omitted).
Appellant was subsequently charged on October 19, 2010, with driving under the influence of alcohol, possession of a small amount of marijuana, possession of drug paraphernalia, failure to keep right, and driving while operating privilege was suspended (DUI related). The case proceeded to a jury trial held on December 13-15, 2011. At the conclusion of the trial, the jury found Appellant guilty of DUI with a specific finding that Appellant refused blood alcohol testing, and found Appellant not guilty of possession of drug paraphernalia. The trial court found Appellant guilty of possession of a small amount of marijuana, and the summary offenses of failure to keep right, and driving while operating privilege was suspended (DUI related). On February 28, 2012, the trial court sentenced Appellant to an aggregate term of incarceration of 21 months to five years. Appellant filed a facially untimely pro se post-sentence motion for reconsideration of his sentence on March 13, 2012, which the Clerk of Courts docketed and forwarded to Appellant's counsel. See Pa.R.Crim.P. 576(A)(4). No counselled post-sentence motion was submitted and no direct appeal from Appellant's judgment of sentence was filed.
On January 28, 2013, Appellant filed a pro se PCRA petition, and on January 30, 2013, the PCRA court appointed the York County Public Defender's Office to represent Appellant. A hearing on Appellant's PCRA petition was held on April 26, 2013. The PCRA court denied relief by order filed May 16, 2013. Appellant filed a timely notice of appeal on May 28, 2013. Subsequent to filing the appeal, PCRA counsel filed a motion to withdraw as counsel on September 26, 2013, together with a Turner/Finley brief. Appellant has not filed a response to PCRA counsel's motion.
PCRA counsel identifies, on Appellant's behalf, the following questions for our review.
1. Whether the PCRA court erred in denying Appellant's petition because trial counsel was ineffective for failing to file a Motion to Recuse the trial judge for actual bias and an appearance of bias against Appellant's trial counsel which impact[ed] Appellant's ability to receive a fair trial?
2. Whether the PCRA court erred in denying Appellant's petition because trial counsel was ineffective for failing to withdraw as counsel when trial counsel was aware interactions between counsel and the trial judge prejudiced Appellant to the point of impacting Appellant's ability to receive a fair trial?
3. Whether the PCRA court erred in denying Appellant's petition because trial counsel was ineffective for failing to rebut evidence presented by the Commonwealth that Appellant was so intoxicated on the night he was pulled over for DUI that he was wearing his jacket inside-out?
Turner/Finley Brief at 4.
Prior to considering Appellant's arguments, we must review PCRA counsel's request to withdraw from representation. As delineated by our Supreme Court, the requirements PCRA counsel must adhere to when requesting to withdraw include the following.
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[.]
Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley, supra at 215. "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).
[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. (citation omitted).
Instantly, we determine that PCRA counsel has complied with the requirements of Turner/Finley. Specifically, PCRA counsel's Turner/Finley brief details the nature and extent of PCRA counsel's review, addresses the claims Appellant raised in his amended PCRA petition and determines that the issues lack merit. PCRA counsel provides a discussion of Appellant's claims, explaining why the issues are without merit. Additionally, counsel served Appellant with a copy of the petition to withdraw and Turner/Finley brief, advising Appellant that, if PCRA counsel was permitted to withdraw, Appellant had the right to proceed pro se or with privately retained counsel. As noted, Appellant has not filed any response. We proceed, therefore, to conduct an independent merits review of Appellant's claims.
We acknowledge the following principles, guiding our consideration of an appeal from the denial of PCRA relief.
Our standard of review 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. 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 party who prevailed in the PCRA court proceeding.
Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012) (citations omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (internal quotation marks and citations omitted), appeal denied, 38 A.3d 823 (Pa. 2012). "The PCRA court's factual determinations are entitled to deference, but its legal determinations are subject to our plenary review." Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (internal quotation marks and citations omitted). 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).
In addition, when reviewing a claim of ineffective assistance of counsel we apply the following test, first articulated by our Supreme Court in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
When considering such a claim, courts presume that counsel was effective, and place upon the appellant the burden of proving otherwise. Counsel cannot be found ineffective for failure to assert a baseless claim.
To succeed on a claim that counsel was ineffective, Appellant must demonstrate that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) counsel's ineffectiveness prejudiced him.
[T]o demonstrate prejudice, appellant must show there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal quotation marks and citations omitted). "Failure to establish any prong of the test will defeat an ineffectiveness claim." Commonwealth v. Birdsong, 24 A.3d 319, 330 (Pa. 2011).
PCRA counsel couches Appellant's first two issues as asserting the ineffective assistance of trial counsel in failing to either seek the recusal of the trial judge or withdraw as Appellant's trial counsel in light of what Appellant deemed to be an apparent bias by the trial judge toward trial counsel. Turner/Finley Brief at 11, 14. In fact, however, Appellant's pro se PCRA petition did not assert ineffective assistance of trial counsel on this ground, or assert that the trial court was biased toward trial counsel. Rather, Appellant asserted the trial court was biased toward Appellant and sought PCRA relief of a new trial, averring the trial court's bias resulted in a denial of due process. Appellant's pro se PCRA Petition, 1/18/13, at 3-B, 7-B. Appellant characterized the issue as follows.
Did the trial judge demonstrate the required unbiased and objective demeanor – and hence, presume [Appellant] to be innocent until proven guilty beyond a reasonable doubt – when he: (a) denied [Appellant's] petition for reinstatement of bail so that he could enter rehab because [Appellant] "should stay in prison and 'do his jail time' first and then go to rehab for help after he is released"; (b) told [Appellant's] attorney to "work with us" to get the case resolved, as opposed to taking it to trial; and (c) got into a heated argument with [Appellant's] attorney about a different case, during a pretrial hearing in [Appellant's] case, again telling [Appellant's] attorney he needs to "work with us."
Id. at 3-B (emphasis in original).
At the PCRA hearing, the Commonwealth correctly noted that Appellant had not raised the issue of the trial court's bias before, during or after trial in this case. N.T., 4/26/13, at 3-4. Accordingly, PCRA relief would be unavailable, as the issue was previously waived. Id., see 42 Pa.C.S.A. § 9543(a)(3); Commonwealth v. Stafford, 749 A.2d 489, 501 (Pa. Super. 2000) (noting "[i]t is well-settled that a party seeking recusal or disqualification must raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred") (internal quotation marks and citations omitted), appeal denied, 795 A.2d 975 (Pa. 2000).
Nevertheless, the PCRA court permitted testimony on the issue of its alleged bias to the extent "there might be some questions … as to why there wasn't a motion filed [by trial counsel] for recusal or something of that nature." N.T., 4/26/13, at 4. During his PCRA hearing testimony, Appellant focused on a heated verbal exchange the trial judge had with trial counsel in an unrelated case, occurring a month before Appellant's trial. Id. at 9-10. Appellant acknowledged that based on the exchange, "I didn't – I really didn't think he was biased towards me. I just thought he was biased towards [trial counsel] after they showed that argument there." Id. at 15.
During his PCRA hearing testimony, trial counsel acknowledged that, as a result of the noted exchange, he also believed the trial judge displayed a bias against him. Id. at 23-24. Trial counsel testified that he discussed the issue with Appellant and related his belief that the trial judge nevertheless "gives a fair trial." Id. at 24. Trial counsel broached the possibility of Appellant securing alternative counsel under the circumstances, but Appellant related that he "believe[d] [trial counsel] was the right man for the job." Id.
In its Rule 1925(a) opinion, the PCRA court denied displaying any bias toward Appellant or trial counsel. Trial Court Opinion, 8/13/13, at 6. Significantly, Appellant has proffered no example of trial court bias evident in the underlying case. Nor has Appellant in any way articulated how such alleged bias resulted in prejudice against him. There is no allegation that the trial court made any erroneous evidentiary ruling or charge to the jury as a result of such bias, or that any biased action, comment, or demeanor by the trial court influenced the outcome of Appellant's trial. Accordingly, we agree with the PCRA court that, to the extent Appellant has raised and preserved an ineffective assistance of counsel claim in connection with trial counsel's failure to move for the trial judge's recusal or, himself, withdraw, Appellant has failed to meet the prejudice prong of the Pierce test and his claim fails. See Birdsong, supra.
PCRA counsel next advances Appellant's argument that the PCRA court erred in determining Appellant failed to establish trial counsel's ineffectiveness for failing to rebut certain testimony by Officer Bunty. Turner/Finley Brief at 15. Specifically, Officer Bunty testified that at the time of the traffic stop Appellant was wearing his fleece jacket inside out. N.T., 12/13-15/11, at 85. Appellant contended the Commonwealth emphasized this evidence as supporting an inference of Appellant's state of intoxication at the time of the traffic stop. Appellant's Pro Se PCRA Petition, 1/28/13, at 3-A. Appellant testified at the PCRA hearing that he advised trial counsel that this statement was untrue, but that trial counsel "ignored what I had said, did not bring or make any objections." N.T., 4/26/13, at 7. Appellant averred that if Officer Bunty's statement had been countered, it "might have changed the jury's perception of the case, " and on the credibility of Officer Bunty. Id. at 8.
At the PCRA hearing, trial counsel testified that he discussed the issue of the jacket with Appellant. Id. at 20. Trial counsel had an investigator try to locate the jacket but the investigator could not do so. Id. Furthermore, in trial counsel's view, the dash-cam video of the traffic stop was inconclusive on the question, so he did not use that to rebut Officer Bunty's assertion. Id. at 21-22. In the context of the case as a whole, trial counsel noted that the jacket evidence was not "dispositive of the case." Id. at 23. "There were other facts and issues, primarily the videotape that I think was dispositive of this case, and in particular [Appellant's] post-arrest behavior and things of that general nature that were more crucial to the case." Id. Rather than attack the credibility of Commonwealth witnesses, trial counsel's strategy was to "point out these things were subjective opinions as opposed to empirical information, and didn't rise to the level of substantial impairment judging as a stranger." Id. The PCRA court agreed.
It is difficult to determine how this fact would have made a difference to the jury's determination of the officer's credibility. … The jury had not only the officer's testimony regarding the traffic stop, but also a video recording from the dash mounted camera in the officer's patrol car. Trial counsel testified that he viewed the video no less than 10 times and was familiar with the video. It was his opinion that he had no basis of comparison for whether Mr. Davis' jacket was inside-out, since he did not know what Mr. Davis' jacket looked like.
PCRA Court Opinion, 8/13/13, at 15.
In light of the foregoing, we conclude Appellant failed to establish the second prong of the Pierce test, since trial counsel had a reasonable strategic basis for not attacking Officer Bunty's credibility by rebutting his statement about Appellant's jacket. Our review of the record reveals that the evidence supports the PCRA court's factual findings.
Therefore, we discern no abuse of discretion or error of law by the PCRA court's denial of Appellant's PCRA petition. Accordingly, we affirm the PCRA court's May 16, 2013 order and grant PCRA counsel's motion to withdraw.
Motion to withdraw granted.