Opinion
J-S41037-14 No. 364 EDA 2014
08-19-2014
COMMONWEALTH OF PENNSYLVANIA Appellee v. WILLIAM JOHN MUFFLEY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order January 7, 2014
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0002692-2009
BEFORE: BOWES, J., DONOHUE, J., and MUNDY, J. MEMORANDUM BY MUNDY, J.:
Appellant, William John Muffley, appeals pro se from the January 7, 2014 order dismissing his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The relevant facts and procedural history of this case may be summarized as follows. On October 4, 2010, Appellant was found guilty in a bench trial of one count each of robbery, terroristic threats, theft by unlawful taking or disposition, and possession of instruments of crime (PIC), in connection with his June 26, 2009 robbery of Wachovia Bank in Northampton, Pennsylvania. On November 14, 2011, the trial court sentenced Appellant to an aggregate term of ten to 23 years' imprisonment. This Court affirmed Appellant's judgment of sentence on August 14, 2012, and our Supreme Court denied Appellant's petition for allowance of appeal on February 13, 2013. See Commonwealth v. Muffley, 60 A.3d 569 (Pa. Super. 2012) (unpublished memorandum), appeal denied, 63 A.3d 776 (Pa. 2013).
18 Pa.C.S.A. §§ 3701, 2706, 3921, and 907, respectively.
Appellant was represented at trial by Mark Minotti, Esquire, and on direct appeal by Brian M. Monahan, Esquire.
On September 9, 2013, Appellant filed a timely pro se PCRA petition. On September 12, 2013, the PCRA court appointed Matthew C. Potts, Esquire (Attorney Potts) to represent Appellant. Attorney Potts did not file an amended PCRA petition on Appellant's behalf, but did represent Appellant at his October 25, 2013 evidentiary hearing. On November 21, 2013, Attorney Potts requested leave to withdraw in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. On November 25, 2013, the PCRA court provided Appellant with notice of its intent to dismiss his petition, pursuant to Pa.R.Crim.P. 907. On December 9, 2013, Appellant filed a pro se response, wherein he reiterated the arguments raised in his PCRA petition, challenged the effectiveness of Attorney Potts' representation in his PCRA proceeedings, and requested to proceed pro se. See "[Appellant's] Response to Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907," 12/9/13, at 2-3.
Thereafter, on January 7, 2014, the PCRA court entered an order granting Attorney Potts' request to withdraw. By the same order, the PCRA court dismissed Appellant's PCRA petition. This timely appeal followed on January 23, 2014.
Appellant and the PCRA court have complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Appellant raises the following issues for our review.
[I.] Whether the PCRA court improperly denied [Appellant's] PCRA without providing it's [sic] reasons for each of the claims raised in [Appellant's] PCRA petition?Appellant's Brief at 3.
[II.] Whether the PCRA court improperly denied [Appellant] relief with respect to [Appellant's] claim of a violation of his speedy trial rights pursuant to Pa.R.Crim.P. 600, and protected by the Pennsylvania Constitution Article I, § 9, and U.S. Constitution Amendment VI?
[III.] Whether the PCRA court improperly denied [Appellant] relief when it failed to address the specific merits of [Appellant's] claim that a bank video existed, of which 22 still photographs were derived from, a violation of the Pennsylvania Rules of Evidence, Rule 1002, and a violation of the "Best Evidence Rule[,]" [] where the contents of the video were being sought?
[IV.] Whether the PCRA court improperly dismissed [Appellant's] claim that his direct
appeal counsel failed to address the issue of "insufficiency of evidence" to sustain a verdict on appeal, as [Appellant] properly laid out a "layered" claim in effectiveness [sic] against direct appeal counsel in his timely filed PCRA?
[V.] Whether PCRA counsel erred when it failed to submit a brief that was requested by the PCRA court following an evidentiary hearing and [] in the alternative, filed a [Turner/]Finley letter without investigating or illuminating upon the specific merits of [Appellant's] claims as argued in [Appellant's] pro se PCRA petition, and subsequent testimony from the evidentiary hearing?
For the purposes of our review, we have elected to address Appellant's claims in a slightly different order than presented in his pro se appellate brief. Additionally, to the extent Appellant's claims are interrelated, those issues will be addressed concurrently.
"On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). "[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." Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation omitted). "[T]his Court applies a de novo standard of review to the PCRA court's legal conclusions." Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).
Preliminarily, we note that Appellant's claims in Issues II and III, alleging violations of Pennsylvania Rule of Criminal Procedure 600 and the Pennsylvania Rule of Evidence 1002, are not cognizable under the PCRA. See Appellant's Brief at 13-24. 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 the aforementioned 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 his Rule 600 claim as due process violation under Section 9543(a)(2) by citing to boilerplate, we find his argument is unavailing. See Appellant's Brief at 13. Accordingly, Issues II and III are waived.
In reaching this conclusion, we emphasize that, "[a]lthough this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant." Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005) (citation omitted). Nor does it entitle him to have this Court advocate on his behalf. Commonwealth v. Hakala, 900 A.2d 404, 407 (Pa. Super. 2006) (stating "[i]t is not this Court's function or duty to become an advocate for the Appellant[]"), appeal denied, 900 A.2d 1288 (Pa. 2006). "To the contrary, any person choosing to represent himself in a legal proceeding must, to a reasonable extent, assume that his lack of expertise and legal training will be his undoing." Adams, supra (citations omitted).
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We now turn to Appellant's claim in Issue I that the PCRA court "erred in denying [his] first PCRA petition without providing it's (sic) own specific reasons addressing each of the claims raised in [Appellant's] PCRA petition." Appellant's Brief at 11. Our review reveals that Appellant failed to raise or adequately develop this issue in the "Argument" section of his pro se appellate brief. See id. at 11-13. Specifically, Appellant's brief does not contain a single citation to any pertinent legal authority in support of his claim that the PCRA court committed reversible error in this regard. This Court has long recognized that we 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). Furthermore, Pennsylvania Rule of Appellate Procedure 2119(a) provides that "[t]he argument shall be divided into as many parts as there are questions to be argued; ... followed by such discussion and citation of authorities as are deemed pertinent." Pa.R.A.P. 2119(a) (emphasis added).
Likewise, in Issue IV, Appellant contends that his direct appeal counsel, Attorney Monahan, rendered ineffective assistance by failing to challenge the "insufficiency of evidence," but fails to specify the charges he believes were not supported by sufficient evidence, or allege the specific elements of each crime that the Commonwealth allegedly failed to prove. See Appellant's Brief at 24-26. Appellant also neglected to specify in his Rule 1925(b) statement the elements of the offenses that the Commonwealth failed to prove beyond a reasonable doubt. See "[Appellant]'s 1925(b) Statement[] of the Errors Complained of on Appeal[,]" 2/12/14. "[A]n appellant's Rule 1925(b) statement must state with specificity the element or elements upon which the appellant alleges that the evidence was insufficient." Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (citations omitted).
Based on the foregoing, we conclude that Issues I and IV are also waived. See e.g., Commonwealth v. Briggs, 12 A.3d 291, 341 (Pa. 2011) (holding that arguments which are undeveloped and lack citation to relevant authority are waived), cert. denied, Briggs v. Pennsylvania, 132 S.Ct. 267 (2011).
The crux of Appellant's final issue on appeal is that his PCRA counsel, Attorney Potts, rendered ineffective assistance by failing to file either an amended PCRA petition or appellate brief on his behalf, in lieu of a Turner/Finley no-merit letter. See Appellant's Brief at 26-28; see also "[Appellant's] Response to Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907," 12/9/13, at 2. For the following reasons, we disagree.
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).
Instantly, the record reveals that Appellant has failed to adequately discuss, let alone prove, any of the three prongs of the aforementioned ineffectiveness test with respect to this issue. See Appellant's Brief at 26-29. Notably, Appellant has failed to identify how Attorney Potts decision to withdraw "lacked an objective reasonable basis." Koehler, supra. Courts in this Commonwealth have long recognized the procedural posture PCRA counsel may follow under Turner/Finley when they believe a petitioner's claims lack merit. As delineated by our Supreme Court, the requirements 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;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).
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[.]
Herein, as Appellant acknowledges in his appellate brief, Attorney Potts has complied with the requirements of Turner/Finley. See Appellant's Brief at 27 (acknowledging that, "PCRA counsel seemingly complied with the requirements of [ Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006)]"). Accordingly, Appellant's final claim in this regard must fail. See e.g., Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012) (citation omitted) (stating, "[f]ailure to prove any prong of th[e Pierce ] test will defeat an ineffectiveness claim[]").
Based on the foregoing, we conclude that Appellant's claims on appeal are either waived or devoid of merit. Accordingly, we affirm the January 7, 2014 order of the PCRA court.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2014