Com. v. Scott, E.

J-S10033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : EDWARD SCOTT, : : Appellant : No. 1455 EDA 2018

Appeal from the PCRA Order April 6, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006350-2011

BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J. MEMORANDUM BY GANTMAN, P.J.E.: FILED APRIL 15, 2019

Appellant, Edward Scott, appeals from the order entered in the Philadelphia County Court of Common Pleas, which denied his first petition filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The relevant facts and procedural history of this case are as follows. On May 18, 2011, Appellant and an accomplice robbed Victim at gunpoint, and Appellant fled the scene in Victim’s vehicle. A jury convicted Appellant on February 7, 2013, of one count each of robbery, conspiracy to commit robbery, robbery of a motor vehicle, and possession of an instrument of crime. On July 2, 2013, the court sentenced Appellant to an aggregate term of ten (10) to twenty (20) years’ incarceration, plus ten (10) years’ probation. The sentence included a mandatory minimum sentence under 42 Pa.C.S.A. § 9714

____________________________________ * Retired Senior Judge assigned to the Superior Court.

J-S10033-19

(governing sentences for second and subsequent offenses).

This Court affirmed the judgment of sentence on July 29, 2015, and our Supreme Court denied allowance of appeal on December 1, 2015. See Commonwealth v. Scott, 125 A.3d 464 (Pa.Super. 2015) (unpublished memorandum), appeal denied, 633 Pa. 778, 126 A.3d 1284 (2015).

On February 26, 2016, Appellant filed pro se his first PCRA petition. The PCRA court appointed counsel, who filed an amended petition on November 23, 2016. Following a hearing on March 24, 2017, the court issued notice of its intent to dismiss Appellant’s petition, per Pa.R.Crim.P. 907. On April 10, 2017, despite having counsel, Appellant filed a pro se motion for an extension of time to respond to the Rule 907 notice, which the court granted. On August 10, 2017, Appellant filed his pro se response. Appellant’s counsel also filed a response to the Rule 907 notice on March 20, 2018. The PCRA court dismissed Appellant’s petition on April 6, 2018, and on April 13, 2018, Appellant filed a timely notice of appeal. The court did not order Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and Appellant did not file one.

Appellant raises the following issue for our review:

WAS COUNSEL INEFFECTIVE FOR FAILING TO RAISE THE ISSUE OF…APPELLANT’S BEING SUBJECT TO AN ILLEGAL MANDATORY MINIMUM SENTENCE?

(Appellant’s Brief at 9).

Our standard of review of the denial of a PCRA petition is limited to

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examining whether the evidence of record supports the court’s determination and whether its decision is free of legal error. Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We do not give the same deference, however, to the court’s legal conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). Traditionally, credibility issues are resolved by the trier of fact who had the opportunity to observe the witnesses’ demeanor. Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). “A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts.” Commonwealth v. Johnson, 600 Pa. 329, 356-357, 966 A.2d 523, 539 (2009).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Daniel J. Anders, we conclude Appellant’s issue merits no relief. The PCRA court opinion comprehensively discusses and properly disposes of the question presented. (See PCRA Court Opinion, filed May 25, 2018, at 2-6) (finding: prior convictions are sentencing factors, not elements of offenses; when Appellant committed underlying offense, he had prior conviction for voluntary

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manslaughter, another crime of violence; therefore, sentence imposed under 42 Pa.C.S.A. § 9714 was not unconstitutional, and his ineffectiveness claim lacks arguable merit). The record supports the PCRA court’s decision. Accordingly, we affirm based on the PCRA court opinion.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/15/19

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Circulated 03/20/2019 04:46 PM

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA FIRST JUDICIAL DISTRICT OF PENNSYLVANIA I L -ED TRIAL DIVISION-CRIMINAL

COMMONWEALTH OF PENNSYLVANIA 1455 EDA 2018 OFFICE OF JUDICIAL RECORDS CRIMINAL DIVISION

VS. CP-51-CR-006350 CP-51-CRA006350-2011 Comm. v.Scott, Edward K

EDWARD SCOTT

OPINION 1111111111111111 1111 1 111 8114537561

Defendant Edward Scott was convicted of robbery, conspiracy to commit robbery of a motor vehicle and possession of an instrument of crime, He was sentenced to 10 to 20 years of incarceration, Defendant challenged his judgment of sentence on a direct appeal, which the Superior Court affirmed. Commonwealth v. Edward Scott, 2286 EDA 2013, filed July 29, 2015.

On February 26, 2016, Defendant filed a timely petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541, et seq.; court -appointed counsel subsequently filed an amended PRCA petition. The PCRA court dismissed Defendant's PRCA petitions as without merit. For the reasons stated herein, the Superior Court should affirm the PCRA court's order dismissing Defendant's PCRA petitions.

FACTUAL AND PROCEDURAL BACKGROUND

the On May 18, 2011, Defendant and his co-defendant approached William Jackson on

1300 block of Narragansett Street in Philadelphia. The co-defendant pulled out a black and silver to get semi -automatic handgun and pointed it in Jackson's face. The co-defendant told Jackson

on the ground, Lay face -down on his stomach, and hand over his money; Jackson complied, The

co-defendant then put the gun to the center of the back of Jackson's head. As the co-defendant a did this, Defendant was standing directly behind Williams. The co-defendant then removed

wallet from Jackson's back pocket, and told Defendant to jump into Jackson's vehicle and drive off.

co-defendant and his Jackson called 911 and provided descriptions of Defendant, the stopped Defendant, who was vehicle in which Defendant drove off. Minutes later, police officers Police brought Jackson to observed walking away from the driver's side of Jackson's vehicle. identified Defendant based Defendant to make an on -scene identification. Jackson positively testified that he had no upon his face, skin color, height, stature and clothing. At trial, Jackson stole his vehicle. See generally doubt that he correctly identified Defendant as the person who

Trial Court Opinion, October 16, 2014 at 1-4. which the Superior Defendant challenged his judgment of sentence on a direct appeal,

Court affirmed. Commonwealth v. Edward Scott, 2286 EDA 2013, filed July 29, 2015. On

-appointed counsel February 26, 2016, Defendant filed a timely PCRA petition. Court 2016. subsequently filed an amended PRCA petition on November 23, PCRA petitions, On March 24, 2017. the PCRA court held a hearing on Defendant's

and issued a Rule 907 during which it concluded that his PCRA claims were without merit time to file a response to the Rule 907 Notice. On April 10, 2017, Defendant requested additional

the Rule 907 Notice. On March 20, Notice. On August 10, 2017, Defendant filed objections to objections. On April 6, 2018, court -appointed counsel filed a letter response to Defendant's PCRA claims as without merit. 2018, the PCRA court formally dismissed Defendant's

Defendant then filed this timely appeal.

DISCUSSION court erred in dismissing his claims as On appeal, Defendant will argue that the PCRA failing to (1) raise the constitutionality of without merit because his trial counsel was ineffective for pursuant to Pa.R.Crim.P. 600(g), (3) a mandatory sentence, (2) litigate a motion to dismiss

and (4) properly advise Defendant of his right interview, investigate and call several alibi witnesses,

to testify at trial. Defendant's Amended PCRA Petition, dated 11/23/2016, and Defendant's

Response and Objections to Rule 907 Notice, dated 8/10/2017.

1. The Standard of Review of Claims of Ineffectiveness in PCRA Petitions

In Commonwealth v. C'ax, 983 A.2d 666 (Pa. 2009), our Supreme Court set forth the

standards governing claims brought pursuant to the PCRA alleging ineffective assistance of

counsel:

Under the PCRA, collateral relief is afforded to individuals who prove that they are innocent of the crimes of which they were convicted, and those receiving illegal sentences. 42 Pa.C.S. § 9542. "A petitioner is eligible for PCRA relief only when he proves by a preponderance of the evidence that his conviction or sentence resulted from one or more of the circumstances delineated in 42 Pa.C.S. § 9543(a)(2)." Commonwealth v. Natividad, 938 A.2d 310, 320 (Pa. 2007). One of the grounds enumerated in 42 Pa.C.S § 9542(a)(2) involves claims alleging ineffective assistance of counsel. Thus, the PCRA provides relief to those individuals whose convictions or sentences "resulted from ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth - determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9542(a)(2)(ii). This Court has interpreted this to mean that in order to obtain relief on a claim alleging ineffective assistance of counsel, a petitioner must prove that: (1) the claim underlying the ineffectiveness claim has arguable merit; (2) counsel's actions lacked any reasonable basis; and (3) counsel's actions resulted in prejudice to petitioner. Commonwealth v. Collins, 957 A.2d 237 (Pa. 2008); Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). A chosen strategy will not be found to have lacked a reasonable basis unless it is proven 'that an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (quoting Commonwealth v. Howard, 719 A.2d 233, 237 (Pa. 1998)). "Prejudice in the context of ineffective assistance of counsel means demonstrating that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different." Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001); Strickland v. Washington, 466 U.S. 668, 694 (1984). Finally, the law presumes that counsel was effective and the burden of proving that this presumption is false rests with the petitioner. Commonwealth v. Basemore, 744 A.2d 717, 728 n.10 (Pa. 2000).

Cox, 983 A.2d at 678.

the defendant to show that "Prejudice," as articulated in Strickland and Pierce, requires

"trial counsel's omission had an actual adverse effect on the outcome of the proceedings such

that [Defendant] is entitled to anew trial." Commonwealth v. Spotz, 84 A.3d 294, 317 (Pa. 2014); Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa, 2004). The Pennsylvania Supreme Court clarified the standard of proof required to establish prejudice in a PCRA proceeding and distinguished it from the harmless error standard on direct appeal:

[A] defendant [raising a claim of ineffective assistance of counsel] is required to show actual prejudice; that is, that counsel's ineffectiveness was of such magnitude that it 'could have reasonably had an adverse effect on the outcome of the proceedings.' Pierce, 527 A.2d at 977. This standard is different from the harmless error analysis that is typically applied when determining whether the trial court erred in taking or failing to take certain action. The harmless error standard, as 164 set forth by this Court in Commonwealth v. Story, 383 A.2d [155], [(Pa. 1978)] (citations omitted), states that "[w]henever there is a `reasonable possibility' that an error 'might have contributed to the conviction,' the error is not harmless." This standard, which places the burden on the Commonwealth to show that the error did not contribute to the verdict beyond a reasonable doubt, is a lesser standard than the Pierce prejudice standard...."

Spot; 84 A.3d at 315 (emphasis added). Thus, to establish the requisite prejudice in a PCRA

that, but for counsel's proceeding, the defendant "must show there is a reasonable probability Id. at 320-21. error or omission, the result of the proceeding would have different." is "whether the findings The standard of review for an appeal from the denial of PCRA relief Commonwealth Gwynn, of the PCRA court are supported by the record and free of legal error." v

943 A.2d 940, 944 (Pa. 2008). "The level of deference accorded to the post -conviction court may

or matters of applying the vary depending upon whether the decision involved matters of credibility

governing law to the facts as so determined." C'orinnonwealth v. Williams, 950 A.2d 294, 299 (Pa.

to deference, but its legal conclusions 2008). "The PCRA court's factual determinations are entitled

are subject to plenary review." Commonwealth. v. Gorby, 900 A.2d 346, 363 (Pa. 2006).

if: (1) the petition is Finally, a judge may dismiss a PCRA petition without a hearing facts alleged therein would not, patently frivolous and without support in the record; or (2) the 907; Commonwealth v, Walls, 993 even if proven, entitle the defendant to relief. See Pa.R.Crim.P.

A.2d 289, 295 (Pa, Super. Ct. 2010) ("It is within the PCRA court's discretion to decline to hold a

no support either in the record or hearing if the petitioner's claim is patently frivolous and has hearing on a PCRA petition, and if other evidence."). "There is no absolute right to an evidentiary issues of material fact exist, then a the PCRA court can determine from the record that no genuine

hearing is not necessary." Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. Ct, 2008).

are wholly without merit, and the As discussed below, Defendant's ineffectiveness claims

Superior Court should affirm the PCRA court's dismissal of his PCRA petitions.

Failing 2. Defendant's Claim That Trial Counsel Was Ineffective For Merit To Challenge The Sentence As Unconstitutional Is Without to challenge the imposition Defendant asserts that trial counsel was ineffective for failing sentenced Defendant pursuant to 42 of a mandatory sentence of 10 to 20 years. The trial court court of this Pa.C.S. § 9714(a), which states, "Any person who is convicted in any

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." U.S. Supreme Court held that Regarding mandatory minimum sentencing statutes, the are therefore elements and must be any "fflacts that increase the mandatory -minimum sentence

doubt." Alleyne v. United States, 570 U.S. submitted to the jury and found beyond a reasonable A.3d 777 (Pa. Super. Ct. 2015), the Superior 99, 108 (2013). In Commonwealth v. Reid, 117

unconstitutional given the U.S. Supreme Court's Court considered whether Section 9714(a) was `Alleyne did not overturn prior precedent that dictates of Alleyne. The Superior Court noted that

784. Indeed, even in prior convictions are sentencing factors and not elements of offenses." Id. at

Alleyne, the U.S. Supreme Court recognized that prior convictions are a "narrow exception" to

the general rule that the Sixth Amendment provides defendants with the right to have a jury find

U.S. at beyond a reasonable doubt any fact that increases the mandatory minimum. Alleyne, 570

111, n.1. Given that "narrow exception," the Superior Court held that Section 9714 was not

unconstitutional under Alleyne. Reid, 117 A.3d at 785.

Thus, Defendant's ineffectiveness claim regarding an unconstitutional mandatory

sentence is without merit because - at the time he committed the offense for which he was sentenced - he had previously been convicted of voluntary manslaughter, which qualified as crime of violence.

3. Defendant's Claim That Trial Counsel Was Ineffective For Failins To Litigate A Rule 600(g) Motion Is Without Merit to Defendant claims that his trial counsel was ineffective for failing to litigate a motion counsel did litigate dismiss pursuant to Pa,R.Crim,P. 600(g). Contrary to Defendant's claim, trial See N.T. 02/05/2013 at a motion to dismiss pursuant to Pa.R,Crim.P. 600(g) on the day of trial,

trial counsel actually 2-9. The trial court denied the Rule 600(g) motion. Id. Because Defendant's claim litigated the Rule 600(g) motion, the PCRA court properly dismissed this ineffectiveness

as without merit.

4. Defendant's Claim That Trial Counsel Was Ineffective For Failing To Interview Investigate and Call Alibi Witnesses is Without Merit

investigate Defendant claims that his trial counsel was ineffective for failing to interview,

alibi witnesses at trial. and call Anthony Scott, Marcus Scott, Jabriel Buie and Nathan Sharin as

In order to prove that trial counsel was ineffective for failing to call an alibi witness to

(2) the witness testify on his behalf, a defendant must demonstrate that: (1) the witness existed;

was available 0 testify; (3) counsel was aware of the existence of the witness, or should have

ready, willing and able to known of her existence and availability; (4) the proposed witness was testimony prejudiced the testify on behalf of the defendant; and (5) the absence of the proposed

defendant. Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 1999). A defendant must satisfy

Lopez, 739 A.2d 485, 496 all of these elements by offers of objective proof. Commonwealth v.

on his claim. Id. Finally (Pa. 1999). If the defendant fails to do so, he is not entitled to relief or call a witness unless there "trial counsel will not be found ineffective for failing to investigate

is some showing by the appellant that the witness's testimony would have been helpful to the defense." Commonwealth v. Brown, 767 A.2d 576, 582 (Pa. Super. 2001) (citing Commonwealth

v. Auker, 545 Pa. 521, 548, 681 A.2d 1305, 1319 (1996)). told the trial Here, the PCRA court properly dismissed this claim because Defendant to the jury other court that he did not wish to have any witnesses or other evidence presented his trial counsel.' N.T. than Brenda Scott and that he was satisfied with the services of this ineffectiveness claim. 02/06/2013 at 73-74. Therefore, the PCRA court properly dismissed

See Commonwealth v. Paddy, 800 A.2d 294, 315 (Pa. 2002) (trial counsel was not ineffective

call any witnesses and did not where defendant was questioned by the court regarding right to v. Hancharik, 565 A.2d 782, 784 indicate any additional witnesses to be called); Commonwealth

(Pa. Super. Ct. 1998) (same).

Additionally, given the overwhelming evidence of Defendant's guilt - the strength of the arrest as he was walking away from identification testimony by Jackson as well as Defendant's

the driver's side of the stolen vehicle - Defendant cannot prove the requisite actual prejudice to Trial Court Opinion, October 16, 2014 at 1- succeed on this ineffectiveness claim. See generally, claim is without merit. 4. For this additional reason, Defendant's ineffectiveness

testified at trial on February 6, 2011 Pursuant to Defendant's request, Brenda Scott

5. Defendant's Claim That Trial Counsel Was Ineffective For Failing To Properly Advise Defendant Of His Right To Testify At Trial him of his Defendant claims that trial counsel was ineffective for failing to properly advise the trial court-just right to testify at trial. This claim is contradicted by the trial transcript wherein

before the trial ended - conducted a thorough colloquy of Defendant regarding his right to testify on his own behalf. N.T. 02/06/2013 at 72-73. Defendant testified that he was aware of

such, the PCRA constitutional right to testify and that he did not want to testify at trial. Id. As Willis, 68 court properly dismissed this ineffectiveness claim as without merit. Commonwealth I),

A.3d 997 (Pa. Super. Ct. 2013) (PCRA court correctly rejected petitioner's ineffectiveness claims

because defendant was where the claims would contradict petitioner's statements to trial court

bound by those statements made in open court while under oath).

CONCLUSION dismissal of Based on the foregoing, the Superior court should affirm the PCRA court's

Defendant's PCRA petitions.

DAN EL DERS, JUDGE Dated: May 25, 2018

Comm. v. Edward Scott CP-51-CR-0006350-2011 1455 EDA 2018 PROOF OF SERVICE

I hereby certify that I am this day caused to be served the foregoing Order upon this person(s):

Attorney for Appellant: J. Matthew Wolfe 4256 Regent Square Philadelphia, PA 19104

Type of Service: Regular mail

Appellant: Edward Scott MT61 17 SO Coal Township I Kelley Drive Coal Township, PA 17866-1020

Type of Service: Regular mail

Appellee: Appeals Unit Philadelphia District Attorney's Office 3 S. Penn Square Philadelphia, PA 19107

Type of Service: CJC Mailbox

F

DATED: 7.0 I 2 Ra nond T. Dorizi., Esquire Law Clerk to Hon. Daniel J. Anders