March 6, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
EDMOND JACKSON, Appellant
Appeal from the PCRA Order September 11, 2013 in the Court of Common Pleas of Fayette County Criminal Division at No.: CP-26-CR-0001871-2011
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and PLATT, J. [*]
Appellant, Edmond Jackson, appeals pro se from the dismissal of his first petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
On February 14, 2011, Appellant threw a container of urine and feces at two corrections officers when they came to pick up his food tray in the restricted housing unit of SCI Fayette. The incident was recorded on video surveillance tape. (See N.T. Trial, 6/07/12, at 99). After a trial, a jury convicted Appellant of two counts of aggravated harassment by a prisoner. The court also found Appellant guilty of two counts of harassment as a summary offense. (Id. at 101). On June 7, 2012, the court sentenced Appellant to an aggregate sentence of incarceration of not less than twenty-seven nor more than fifty-four months, to be served consecutively to the previous, unrelated sentence he was serving already. The same day, Appellant signed a "Rejection of Appeal" form provided by the Public Defender's office stating that he did not wish the Defender's Office to file an appeal. (See Motion to Withdraw, 8/09/13, at Exhibit 1 ("Rejection of Appeal")).
On May 31, 2013, Appellant filed a timely pro se PCRA petition, alleging insufficient evidence, a weight claim, and ineffective assistance of trial counsel. (See Pro Se PCRA Petition, 5/31/13, at 3). The court appointed counsel, who filed a no-merit letter, a motion to withdraw from representation, and a supporting brief on August 9, 2013. The PCRA court granted counsel's motion and entered notice of its intent to dismiss Appellant's PCRA petition without a hearing on August 19, 2013. See Pa.R.Crim.P. 907. Appellant filed a pro se objection to the notice of intent to dismiss on August 26, 2013. The PCRA court dismissed Appellant's petition on September 11, 2013. Appellant timely appealed pro se.Appellant raises four questions for our review:
I. Whether the Appellant was entitled to relief as [a] result of PCRA counsel rendered [sic] ineffective assistance of [counsel] when she failed to raise trial counsel's ineffectiveness for placing [a] mental[ly] incompetent defendant on the witness stand when it was known before doing so that [Appellant] suffered from schizophreni[a] and was heavily medicated with psychoactive drugs and was unable to recall events leading to his arrest and prosecution[?]
II. Whether the Appellant was entitled to relief as [a] result of PCRA counsel's rendered [sic] ineffective assistance of counsel when she failed to raise trial counsel's ineffectiveness for not objecting to the prosecutor using his peremptory challenges in a racially discriminatory manner to strikes [sic] blacks and latinos venire persons from jury service[?]
III. Whether the Appellant was denied due process of law as [a] result of him having consistently requested the complete transcripts of his trial[, ]voir dire[, ]trial counsel's and prosecutor's closing arguments as well as the trial court's final instructions to the jury to no avail[?]
IV. Whether the Appellant's claim that he is entitled to relief as [a] result of his trial counsel fraudulently induced [sic] him to waive his appellate rights by misinform[ing] his client who suffered with psychiatric disabilities to forego his direct appellate rights to cover-up his own ineffectiveness during his client's criminal trial[?]
(Appellant's Brief, at 5-6).
When reviewing the denial of a PCRA petition, our scope of review is limited by the parameters of the act. Our standard of review permits us to consider only whether the PCRA court's determination is supported by the evidence of record and whether it is free from legal error. Moreover, in general we may affirm the decision of the [PCRA] court if there is any basis on the record to support the [PCRA] court's action; this is so even if we rely on a different basis in our decision to affirm.
Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa.Super. 2005), appeal denied, 876 A.2d 393 (Pa. 2005) (citation omitted).
In his first issue, Appellant contends that "PCRA counsel rendered ineffective assistance of counsel when she failed to raise trial counsel's ineffectiveness for placing [the] mental[ly] incompetent [Appellant] on the witness stand during trial when it was known before trial that [Appellant] was schizophrenic and was heavily medicated with psychoactive drugs . . . ." (Appellant's Brief, at 10). We disagree.
"Counsel is presumed to be effective[.]" Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012) (citation omitted).
To be eligible for relief based on a claim of ineffective assistance of counsel, a PCRA petitioner must demonstrate, by a preponderance of the evidence, that (1) the underlying claim is of arguable merit; (2) no reasonable basis existed for counsel's action or omission; and (3) there is a reasonable probability that the result of the proceeding would have been different absent such error. With regard to the second, i.e., the "reasonable basis" prong, this Court will conclude that counsel's chosen strategy lacked a reasonable basis only if the appellant proves that an alternative not chosen offered a potential for success substantially greater than the course actually pursued. To establish the third prong, i.e., prejudice, the appellant must show that there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's action or inaction.
Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa.Super. 2013) (en banc), appeal denied, 74 A.3d 1030 (Pa. 2013) (some case citations and quotation marks omitted). "A claim of ineffectiveness will be denied if the petitioner's evidence fails to satisfy any one of these prongs." Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012), cert. denied, 134 S.Ct. 178 (2013).
Where the defendant asserts a layered ineffectiveness claim he must properly argue each prong of the three-prong ineffectiveness test for each separate attorney.
Layered claims of ineffectiveness are not wholly distinct from the underlying claims[, ] because proof of the underlying claim is an essential element of the derivative ineffectiveness claim[.] In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel. If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue.
Commonwealth v. Rykard, 55 A.3d 1177, 1189-90 (Pa.Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013) (citations and quotation marks omitted).
Furthermore, we observe that "[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Commonwealth v. Poindexter, 646 A.2d 1211, 1217 (Pa.Super. 1994), appeal denied, 655 A.2d 512 (Pa. 1995) (citation omitted); see also Commonwealth v. Hammond, 953 A.2d 544, 558 (Pa.Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) ("A claim of ineffectiveness generally cannot succeed through comparing, in hindsight, the trial strategy employed with alternatives not pursued.") (citation omitted).
Here, in his layered claim of ineffectiveness, Appellant "avers that had trial counsel not placed him on the witness stand to testify about events he did not recollect and/or would have presented expert testimony as to his mental state [as] competent and/or incompetent during the alleged criminal episode there's a great possibility that the final outcome of trial would have been different." (Appellant's Brief, at 12 (citations omitted)). This claim is unsupported and speculative, especially in light of the surveillance videotape of the incident which was played for the jury. (See N.T. Trial, 6/07/12, at 79). Furthermore, this allegation is belied by trial counsel's conduct at trial.
Preliminarily, we note that, at the beginning of the trial, counsel stated that "[Appellant] has indicated to me that he does suffer from some mental disorders and those mental disorders were affecting his ability to comprehend at the time of this incident." (N.T. Trial, 6/06/12, at 7-8). The court gave Appellant the opportunity to explain that he was prescribed medication for, inter alia, chronic paranoid schizophrenia. (Id. at 9, 80). Appellant testified that he acts out if he is not medicated, and that on the day of the assault he was not taking his medications because of their side effects. (See id. at 9, 81, 83, 84). Appellant testified that he had no recollection of what happened that day. (Id. at 84). Therefore, the issues of Appellant's mental competence and ability to recall events were squarely before the jury. (See Appellant's Brief, at 12). Furthermore, as observed by PCRA counsel, "[h]is testimony that he had no memory of that day was the basis of his defense." (Brief in Support of Motion to Withdraw, 8/09/13, at unnumbered page 9).
Thus, trial counsel's strategy to place Appellant on the stand had a reasonable basis, i.e., to establish his defense to the charges of harassment. See Matias, supra at 810. His own testimony presented his claim of mental illness and his mental state at the time of the incident. Appellant fails to demonstrate why additional expert testimony would have offered a potential for success substantially greater than the course counsel actually pursued. See Hammond, supra at 558. Appellant's mere speculation that expert testimony would have changed the outcome of his trial fails to overcome the presumption of counsel's effectiveness. See Bennett, supra at 1195. Thus, where trial counsel did not render ineffective assistance, neither did PCRA counsel for failing to pursue this issue. See Rykard, supra at 1189-90. Furthermore, he has failed to prove prejudice. Id. Appellant's first layered claim of ineffective assistance for placing him on the witness stand does not merit relief.
In his second issue, Appellant alleges that "PCRA counsel rendered ineffective assistance of counsel when she failed to raise trial counsel's ineffectiveness for not objecting to the manner in which the prosecutor exercised its peremptory challenges during voir dire selection." (Appellant's Brief, at 13-14 (citing Batson v. Kentucky, 476 U.S. 79 (1986))). We disagree.
Preliminarily, we observe that Appellant did not include this claim in his PCRA petition. See Commonwealth v. Williams, 899 A.2d 1060, 1066 n.5 (Pa. 2006) (holding that issues not raised in PCRA petition cannot be considered for first time on appeal); see also Pa.R.A.P. 302(a); 42 Pa.C.S.A. § 9544(b). Appellant first raised a Batson claim in his response to the PCRA court's notice of intent to dismiss. (See Pro Se PCRA Petition, 5/31/13; see also Pro Se "Objection", 8/26/13, at 1). Therefore, he has waived the underlying issue of whether trial counsel was ineffective for failing to object to the Commonwealth's use of peremptory challenges. See Commonwealth v. Rigg, 2014 Pa.Super. Lexis 18 at *8 (Pa.Super. 2014).
Furthermore, Appellant claims that PCRA counsel was "ineffective for failing to file an amended PCRA petition raising whether his equal protection rights under Batson were violated." (Appellant's Brief, at 15); see also Rykard, supra at 1189 (permitting challenge to PCRA counsel ineffectiveness first raised in response to notice of intent to dismiss). However, his claim that counsel failed to raise a Batson objection at trial is belied by the record. (See N.T. Trial, 6/06/12, at 4 ("Your Honor, . . . I am going to raise a Batson challenge . . . .")). Appellant's underlying claim is therefore frivolous, and his layered claim of PCRA counsel ineffectiveness is without merit. See Rykard, supra at 1190 ("If [trial counsel] was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue."). Accordingly, Appellant's second issue does not merit relief.
In his third claim, Appellant "avers that he is entitled to a full state court record as a fundamental prerequisite to the fair adjudication of his post conviction claims." (Appellant's Brief, at 16). Appellant's claim does not present a basis for PCRA relief. See 42 Pa.C.S.A. § 9543(a)(2)(i)-(viii). Therefore, this claim fails. Moreover, it would not merit relief.
In order to ensure a defendant's right to meaningful appellate review, this Court requires that he or she be furnished a full transcript or other equivalent picture of the trial proceedings. With this in mind, it is settled law that in order for a defendant to establish entitlement to relief based on the incompleteness of the trial record, he must first make some potentially meritorious challenge which cannot be adequately reviewed due to the deficiency in the [record].
Commonwealth v. Paxton, 821 A.2d 594, 596 (Pa.Super. 2003), appeal denied, 847 A.2d 1282 (Pa. 2004) (citations omitted); see also Commonwealth v. Hughes, 865 A.2d 761, 785 (Pa. 2004) (concluding that, on collateral review of ineffective assistance of counsel challenge with no identifiable, specific error for review, mere conjecture does not establish a petitioner's entitlement to relief on request for transcripts, given the presumption of effectiveness).
Here, Appellant fails to raise any meritorious challenge that cannot be reviewed due to a deficiency in the record. He merely argues that "myraid [sic] of errors may have occurred during voir dire[, ]trial[, ]closing arguments of both attorneys' [sic] and final instructions from the trial court, and sentencing but without his being afforded a full transcript by the state he is unable to glean what actually had taken place at his 2012 trial." (Appellant's Brief, at 17). Furthermore, the cases on which Appellant relies are inapposite because they refer to a right to meaningful appellate review where all or portions of the transcripts were missing from the certified record. (See id. at 18 (citing, inter alia, Commonwealth v. Goldsmith, 304 A.2d 478 (Pa. 1973))); cf. Pa.R.J.A. 5000.2(g) (defining requirements for trial transcription). Here, Appellant raised only a general allegation of ineffective assistance of counsel in his PCRA petition, and thus, has not established that he is entitled to the transcripts. (See Pro Se PCRA Petition, 5/31/13, at 3); see Hughes, supra at 785; Goldsmith, supra at 480. Thus, this third issue does not present a cognizable PCRA claim and would not merit relief.
In his final claim, Appellant "avers that his trial counsel coerced him into waiver of his direct appellate rights" by advising him to sign a rejection of appeal form. (Appellant's Brief, at 19; see id. at 19-22). We disagree.
It is well-settled that where a defendant requests a direct appeal and counsel fails to file one, a presumption of prejudice arises regardless of the merits of the underlying issues. See Commonwealth v. Lantzy, 736 A.2d 564, 571 (Pa. 1999).
However, here, on June 7, 2012, on the day of his guilty verdict and sentencing, Appellant signed a "Rejection of Appeal" form, duly witnessed, stating that he "[did] not want the Public Defender's office to file an appeal on [his] case." (Motion to Withdraw, 8/09/13, at Exhibit 1 ("Rejection of Appeal")). Appellant now claims that he was "suffering from mental illness and heavily sedated with psychoactive drugs, " (Appellant's Brief, at 19), and denies that he was, in fact, sufficiently fit to testify at trial that same day. (N.T. Trial, 6/07/12, at 7-10, 80-84; cf. id. at 11 (Commonwealth observing that Appellant had filed a sophisticated pro se memorandum of law in support of a petition for writ of habeas corpus that cited legal authority and discussed the facts of his case)).
However, Appellant fails to develop an argument that his self-described mental illness had a causal effect on his capacity to execute a knowing and intelligent waiver of his direct appeal rights. (See Appellant's Brief, at 20). Further, Appellant presents no support whatsoever for his companion claims of coercion and fraudulent inducement. (Id. at 20-21). To the contrary, Appellant baldly asserts that he was not responsible for his actions when he voluntarily went off his medications, nor was he responsible for his actions when he resumed them. (Id. at 20-22).
Furthermore, notably, Appellant took no further action in this case until he filed a pro se PCRA petition nearly a year later, on May 31, 2013. During that entire time, Appellant never articulated that he wished to file a direct appeal. See Lantzy, supra at 571. Thus, trial counsel was not deficient or ineffective by relying on his waiver form. See Bennett, supra at 1195. The record supports the PCRA court's determination that Appellant is not entitled to relief on this claim. See Heilman, supra at 544. The PCRA court properly dismissed Appellant's petition without a hearing.
Ford Elliott, P.J.E., concurs in the result.