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[U] Commonwealth v. Troche

Superior Court of Pennsylvania

March 5, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ALBERT TROCHE, JR. Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ALBERT TROCHE, JR. Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order June 27, 2013 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002688-2007

Appeal from the PCRA Order June 27, 2013 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002322-2007

BEFORE: MUNDY, J., OLSON, J., and STABILE, J.

MEMORANDUM

MUNDY, J.

Appellant, Albert Troche, Jr., appeals pro se from the June 27, 2013 order denying his petitions for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The underlying facts of this case were summarized by a prior panel of this Court on direct appeal, and need not be reiterated here. See Commonwealth v. Troche, 13 A.3d 983 (Pa.Super. 2010) (unpublished memorandum at 2-3).

On May 10, 2007, Appellant was charged with two counts of possession of a controlled substance (cocaine), and one count each of possession with intent to deliver a controlled substance (PWID) and delivery of a controlled substance.[1] Appellant was formally arraigned on July 16, 2007, and the case was assigned to docket number CP-06-CR-0002688-2007. On May 15, 2007, Appellant was charged with two counts each of possession of a controlled substance (cocaine and marijuana) and PWID. Appellant was formally arraigned on June 17, 2007, and the case was assigned to docket number CP-06-CR-0002232-2007. Thereafter, on July 18, 2007, these cases were consolidated with a third case assigned to docket number CP-06-CR-0002689-2007.

Following multiple changes in counsel and several pro se filings, Appellant filed an omnibus motion to suppress evidence with regard to docket number CP-06-CR-0002232-2007. The trial court denied this motion on February 18, 2009. Appellant twice attempted to appeal from the denial of this motion, and both times this Court dismissed the appeal as interlocutory. Following a Grazier[2] hearing, the trial court entered an order on March 30, 2009, permitting Appellant to proceed pro se at trial and appointing Kurt Geishauser, Esquire (Attorney Geishauser) as standby counsel. On August 17, 2009, Appellant's jury trial commenced. Appellant was acquitted of the charges stemming from docket number CP-06-CR-0002689-2007, but found guilty of all remaining charges.

The PCRA court summarized the remaining procedural history of this case as follows.

[On August 19, 2009, Appellant] was subsequently sentenced to serve a term of twelve years and one month to fifty years['] incarceration in a state correctional facility.
[Appellant] then filed a direct appeal to the Pennsylvania Superior Court. Douglas J. Waltman, Esquire, was appointed to represent [Appellant], and filed a brief on [Appellant's] behalf. On September 14, 2010, the Pennsylvania Superior Court affirmed [Appellant's] judgment of sentence. [See Troche, supra.]
[Appellant did not file a petition for allowance of appeal with our Supreme Court.] On January 24, 2011, [Appellant] timely filed a pro se [PCRA] petition[.] Lara Glenn Hoffert, Esquire [(Attorney Hoffert)], was appointed on January 28, 2011 to represent [Appellant] regarding the disposition of the PCRA petition. After her careful review of the record, counsel was directed to file either an amended petition pursuant to Pennsylvania Rule of Criminal Procedure 905 detailing [Appellant's] eligibility for relief, or a [Turner/]Finley Petition detailing the reasons why th[e PCRA] court should allow counsel to withdraw. Commonwealth v. Finley, [550 A.2d 213 (Pa.Super. 1988) (en banc)]; Commonwealth v. Turner, [544 A.2d 927 (Pa. 1988)].
[Attorney Hoffert] reviewed the entire file and corresponded with [Appellant]. Thereafter, on March 12, 2013, [Attorney Hoffert] filed a petition for leave of court to withdraw as counsel and filed a brief in support of said petition. Within the [Turner/]Finley Petition, [Attorney Hoffert] expressed that after careful review of the record, in her professional judgment there were no meritorious issues that could be raised within [Appellant's] petition based on relevant excerpts from the record.

PCRA Court Order and Notice of Intent to Dismiss, 5/23/13, at 1-2 (some case citations added; citation formatting amended).

On May 23, 2013, the PCRA court provided Appellant with notice of its intent to dismiss his petition without a hearing, pursuant to Pa.R.Crim.P. 907. Attorney Hoffert's request to withdraw as counsel was granted by the PCRA court that same day. Appellant responded to the PCRA court's Rule 907 notice by filing a "Petition to Amend PCRA" and a motion requesting additional time to reply to the PCRA court's Rule 907 notice. On June 3, 2013, the PCRA court denied both of Appellant's motions. Nonetheless, on June 6, 2013, Appellant filed a third, pro se amended PCRA petition. Thereafter, on June 27, 2013, the PCRA court dismissed Appellant's petitions without a hearing. On July 9, 2013, Appellant filed a timely pro se notice of appeal with respect to docket numbers CP-06-CR-0002688-2007 and CP-06-CR-0002232-2007, and these cases were consolidated by this Court.[3]

On appeal, Appellant raises the following 11 issues for our review.

I. Was PCRA counsel ineffective?
II. Did the trial court error at a critical stage of the proceedings, prior to the commencement of trial, when it excepted (sic) a waiver of counsel in violation of due process?
III. Was the trial courts' colloque (sic) of March 30, 2009, constitutionally void for vagueness?
IV. Did the trial court error in failing to allow Appellant to file pretrial motion[]s?
V. Was the trial court's sentence illegal and an abuse of discretion?
VI. Does the trial court's sentence violate the Pennsylvania Sentencing Code?
VII. Is [Appellant's] offense compellingly different from the 'typical' case of the same offense to require deviation from the sentencing norms?
VIII. Did the [PCRA] court violate due process when it denied Appellant an extension of time to properly respond to 907 Intent to Dismiss?
IX. Did the [PCRA] court violate due process when it denied Appellant to proceed pro se once PCRA counsel withdrew?
X. Did the [PCRA] court violate due process when it refused Appellant the right to amend his PCRA once counsel withdrew, as stated by Rule 907 Rule 905(A) and 907(1)?
XI. Was the [PCRA] court's denial of the PCRA petition without a hearing an abuse of discretion?

Appellant's Brief at 5-6.[4]

Preliminarily, our review of the record reveals that Appellant failed to raise Issue IX in his Rule 1925(b) statement. It is well established that an appellant's failure to include a claim in his court-ordered Rule 1925(b) statement will result in a waiver of that issue on appeal. Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011); see also Pa.R.A.P. 1925(b). Furthermore, our review of Issue VIII in the "Argument" section of Appellant's brief reveals that he failed to adequately develop this issue or demonstrate how the PCRA court's purported due process violation "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.A. § 9543(a)(2)(i). Rather, Issue VIII consists of a one-page argument replete with boilerplate and fails to identify the issues Appellant would have raised had he been afforded additional time to respond to the PCRA court's Rule 907 notice. See Appellant's Brief at 31. This Court will not consider issues where Appellant fails to cite to any legal authority or otherwise develop the issue. Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa.Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013). Accordingly, we conclude that Issues VIII and IX are waived.[5]

We now turn to Appellant's remaining claims. "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. "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.

In Issue I, the crux of Appellant's claim is that Attorney Hoffert rendered ineffective assistance of counsel by failing to prepare an amended PCRA petition on Appellant's behalf. See Appellant's Brief at 11-13. In sum, Appellant contends that,

[a]fter a lengthy and drawn-out review of [] Appellant's case with numerous extensions of time to file an amended PCRA Petition, [Attorney Hoffert] file[d], in a Scandlous (sic) Manner a No-Merit Turner/Finley letter brief.
There is a proven [p]attern of [Attorney Hoffert's] using undue delay in amending PCRA Petitions, Switching Hats, and playing the District Attorney's part by filing No-Merit letters than dismantle [Appellant's] claims, like a District Attorney would, instead of helping [him] formulate an amended PCRA Petition.

Id. at 12, ¶¶ 6, 9 (paragraph numeration and internal quotation marks omitted).

To prevail on a claim of ineffective assistance of counsel under the PCRA, a petitioner must plead and prove by a preponderance of the evidence that counsel's ineffectiveness "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.A. § 9543(a)(2)(ii). A petitioner must establish "(1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) Appellant was prejudiced by counsel's act or omission." Koehler, supra at 132, citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). "[C]ounsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him." Koehler, supra at 131 (citation omitted). Furthermore, "[i]f an appellant fails to prove by a preponderance of the evidence any of the … prongs, the Court need not address the remaining prongs of the test." Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super. 2009), appeal denied, 990 A.2d 727 (Pa. 2010).

Upon careful review of the record, we discern no error on the part of the PCRA court in concluding that Appellant's ineffectiveness claim is devoid of merit. The record reveals that Appellant has failed to adequately discuss, let alone prove, any of the three prongs of the aforementioned ineffectiveness test. See Appellant's Brief at 11-13. Notably, Appellant has failed to identify how Attorney Hoffert's decision to withdraw "lacked an objective reasonable basis." Koehler, supra. As the PCRA court reasoned in its opinion,

the record reflects that [Attorney Hoffert] was appointed to represent [Appellant] on January 28, 2011. After being granted a number of extensions, [Attorney Hoffert] filed a thorough and well-reasoned [Turner/Finley] petition on March 12, 2013, in which she explained that [Appellant's] PCRA petition was lacking in merit.

PCRA Court Opinion, 8/7/13, at 4.

Our Supreme Court has recognized that the "[f]ailure to prove any prong of th[e Pierce] test will defeat an ineffectiveness claim." Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012) (citation omitted). "With regard to the second, reasonable basis prong, 'we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis.'" Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (citation omitted). "[W]e only inquire whether counsel had any reasonable basis for his actions, not if counsel pursued the best available option." Philistin, supra. Accordingly, Appellant's ineffectiveness claim must fail.

In Issue XI, Appellant further argues that the PCRA court abused its discretion in failing to conduct an evidentiary hearing on Attorney Hoffert's purported ineffectiveness. Appellant's Brief at 34-35. Contrary to Appellant's contention, however, 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, Appellant has failed to establish that his ineffectiveness of counsel claim was of arguable merit. Accordingly, we discern no error on the part of the PCRA court in dismissing his petitions without conducting an evidentiary hearing.

We now turn to Appellant's numerous allegations of trial court error. Specifically, in Issues II and III, the crux of Appellant's argument is that the trial court abused its discretion in allowing him to waive his right to counsel prior to the commencement of trial, and in failing to conduct a proper colloquy at the March 30, 2009 hearing. Appellant's Brief at 13-18. In Issue IV, Appellant further contends that the trial court abused its discretion "in failing to allow [him] to file pre-trial motions[]s" to support these claims. Id. at 18-19.

It is well settled that 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). Furthermore, these issues must not be previously litigated nor waived. 42 Pa.C.S.A. § 9543(a)(3). In Commonwealth v. Price, 876 A.2d 988 (Pa.Super. 2005), appeal denied, 897 A.2d 1184 (Pa. 2006), cert. denied, Price v. Pennsylvania, 549 U.S. 902 (2006), a panel of this Court held the following.

Generally, an appellant may not raise allegations of error in an appeal from the denial of PCRA relief as if he were presenting the claims on direct appeal. Commonwealth v. Brown, [872 A.2d 1139, 1146-1148 (Pa. 2005)] (stating claims available on direct appeal are waived for purposes of PCRA review and this waiver cannot be overcome, absent full layered ineffectiveness of counsel analysis).

Id. at 995 (citation formatting corrected); accord 42 Pa.C.S.A. § 9544(b) (stating, "an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding[]").

Instantly, we note that Appellant could have raised these claims on direct appeal, but failed to do so; thus, these claims are not cognizable under the PCRA. See Price, supra. Moreover, to the extent Appellant attempts to characterize these claims as due process violations under Section 9543(a)(2) by citing to boilerplate, we find his argument is unavailing. Accordingly, Issues II, III, and IV are waived. See id.

In Issues V, VI, and VII, Appellant also raises three claims concerning the imposition of his sentence. See Appellant's Brief at 19, 21, 29. Although framed, in part, as a challenge to the legality of his sentence in an attempt to avoid waiver, the essence of Appellant's argument on appeal is that his sentence was excessive given the trial court's decision to impose consecutive rather than concurrent terms of imprisonment for the multiple crimes for which he was convicted. Id. This Court has long recognized that "[a] challenge to the imposition of consecutive rather than concurrent sentences does not present a substantial question regarding the discretionary aspects of sentence." Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.Super. 2008) (citation omitted; emphasis added), appeal denied, 968 A.2d 1280 (Pa. 2009).

Instantly, our review of the record reviews that this discretionary aspects of sentencing claim was addressed by a panel of this Court on direct appeal, and found to be without merit. See Troche, supra (unpublished memorandum at 4-6). It is well settled that a petitioner cannot raise a claim that has "been previously litigated in his prior direct appeal to this [C]ourt." Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa.Super. 2000). In support of this conclusion, the Hutchins Court reasoned as follows.

The mere fact that [an a]ppellant is now advancing new arguments in support of these previously litigated issues is of no avail. A PCRA Petitioner cannot obtain PCRA review of previously litigated claims decided adversely to him in his direct appeal simply by presenting those claims again in a PCRA Petition and setting forth new theories of relief in support thereof. The purpose of the PCRA is not to provide a defendant with a means of relitigating the merits of issues long since decided on direct appeal.

Id. (citation and internal quotation marks omitted). Based on the foregoing, Appellant's sentencing claims must fail.[6]

Lastly, in Issue X, Appellant argues that the PCRA court erred "when it refused Appellant the right to amend his PCRA [petition] once [Attorney Hoffert] withdrew[, ]" pursuant to Pennsylvania Rule of Criminal Procedure 905. Appellant's Brief at 32-33. Rule 905 provides, in relevant part, as follows.

Rule 905. Amendment and Withdrawal of Petition for Post-Conviction Collateral Relief
(A) The judge may grant leave to amend or withdraw a petition for post-conviction collateral relief at any time. Amendment shall be freely allowed to achieve substantial justice.
(D) All amended petitions shall be in writing, shall comply substantially with Rule 902, and shall be filed and served within the time specified by the judge in ordering the amendment.

Pa.R.Crim.P. 905.

Our Supreme Court has explained that the purpose of this rule is to provide a PCRA petitioner with "the ability to amend his petition in order to properly plead, and attempt to prove, layered claims where dismissal of the petition is imminent on grounds that such claims were not adequately pled." Commonwealth v. Carson, 913 A.2d 220, 233 (Pa. 2006) (citation omitted), cert. denied, Carson v. Pennsylvania, 552 U.S. 954 (2007). However, our Supreme Court also cautioned that we should not remand cases to allow pro se PCRA petitioners to amend their petitions where "a petitioner has not satisfied his … burden in relation to the underlying claim." Id. at 234.

In this case, Appellant alleges that the PCRA court erred in denying his pro se "Petition to Amend PCRA." Appellant's Brief at 33. However, Appellant's brief fails to mention the fact that, despite the PCRA court's denial of his request to do so, he went ahead and filed a third, pro se amended PCRA petition on June 6, 2013. See id. Although it was not required to do so, the PCRA noted that it reviewed this petition in conjunction with Appellant's other PCRA petitions and found it to be devoid of merit. See PCRA Court Opinion, 8/7/13, at 4. Additionally, Appellant has failed to articulate any of the additional issues he set forth in his amended petition that he believes entitle him to PCRA relief. Accordingly, Appellant's claim in this regard must fail. See Carson, supra at 234.

Based on the foregoing, we conclude Appellant's issues are either waived or devoid of merit. Accordingly, we affirm the PCRA court's June 27, 2013 order dismissing Appellant's PCRA petitions without a hearing.

Order affirmed.

Judgment Entered.


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