Commonwealth v. Alexander

1

COMMONWEALTH OF PENNSYLVANIA v. JOHN ALEXANDER Appellant

No. 1331 EDA 2023

J-S21024-24

Superior Court of Pennsylvania

November 5, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered May 26, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0111361-2006

BEFORE: LAZARUS, P.J., NICHOLS, J., and MURRAY, J.

MEMORANDUM

NICHOLS, J.

Appellant John Alexander appeals pro se from the order dismissing his first Post Conviction Relief Act^[1] (PCRA) petition. On appeal Appellant raises numerous claims of ineffective assistance of counsel. We affirm.

The PCRA court set forth the following factual and procedural history:

The evidence at trial showed that on the evening of May 5 2003, the victim, Reinaldo Zayas, was kidnapped when he met with Appellant to purchase a plasma television. When the victim did not return home, his girlfriend, Yomaxi Santos, tried calling him by cell phone. Santos testified that one of her calls was eventually answered and Zayas was heard screaming. After the call, Zayas's brother, Marcos Gutierrez, went to look for him. Zayas called 911. Police officers arrived at Zayas's home but Santos did not tell them about receiving a call from Zayas or hearing him screaming.

When Gutierrez returned home, he received a call from the kidnappers, demanding that money be dropped off at 9^th and Glenwood. Gutierrez worked with police to deliver $4,000 to the requested location, but the ransom was never picked up.

The following day, May 6, 2003, Appellant called the police and reported that he was abducted and beaten. At Episcopal Hospital, Appellant told Officer Steven Johnson that Appellant was forced into a van, with Zayas, at gunpoint, and that Appellant was forced to call his girlfriend, Michelle Carter, in order to request $3,500 in ransom money. Appellant told Officer Johnson that the kidnappers took Appellant to an abandoned house, where he was duct taped, beaten, and burned. Appellant then told Officer Johnson that he passed out several times before awak[ing] around 22^nd and Lehigh [Avenue]. While at the hospital, Appellant also gave a statement to Detective Ken Golczewski saying that when he woke up, he found a payphone near Broad and Lehigh and called Michelle Carter to pick him up.

Appellant then gave a statement to Homicide Detective Aaron Booker. He told Detective Booker that when the kidnappers let him go, they walked him to an alleyway at 22^nd and Sedgley. Appellant told Detective Booker that while he told East Detectives that Michelle Carter picked him up at Broad and Lehigh, he walked to his aunt's house at 3500 Old York Road.

After his interview with Homicide, Appellant rode with Detective Greg Pinto to show him where [the kidnappers released him]. Appellant told Detective Pinto that he was released on railroad tracks and took Detective Pinto to 22^nd and Sedgley. Appellant explained that he picked up a pay phone at 17^th and Lehigh, which did not work, and so [he] went to 15^th and Lehigh to find a working pay phone. After checking the 15^th and Lehigh pay phone himself, Detective Pinto found that it was not working, and then took Appellant back to East Detectives.

Next, Appellant met with Detective Robert Fetters and agreed to help detectives locate Reinaldo Zayas. After driving with detectives for approximately 45 minutes and heading westbound on Cecil B. Moore Avenue, Appellant said, "[i]f you flood this area, you will probably find the van, if the police flood the area." The detectives and Appellant approached a van near 1800 Cecil B. Moore Avenue, and Appellant told them, "it looks like the van." Zayas's body was found inside the van.

Several weeks later, on June 12, 2003, Michelle Carter called police regarding a domestic disturbance and told them that Appellant killed someone two weeks before. Michelle Carter's brother, Maurice Carter, gave an interview to Homicide and told them that Appellant admitted to Maurice Carter that Appellant set Zayas up. Maurice Carter later recanted [his statement].

At trial, Dr. Edwin [Lieberman] testified that he determined, to a reasonable degree of medical certainty, that Zayas's cause of death was multiple stab wounds to the buttock and thigh and that the manner of death was homicide. Dr. [Lieberman] testified from his observations made regarding photographs taken during the autopsy and the autopsy report that Dr. Ian Hood prepared. After a grand jury investigation, Appellant was arrested on September 20, 2005. On March 13, 2007, a jury sitting before the [trial court] found Appellant guilty of second-degree murder, robbery, kidnapping for ransom, unlawful restraint, and conspiracy.^[2] On May 17, 2007, [the trial court] imposed a mandatory sentence of life [imprisonment] without parole and 5 to 10 years running concurrent on Appellant's conspiracy charge. Appellant filed a post-sentence motion on May 22, 2007. The [trial court] denied the post-sentence motion on October 2, 2007.

Appellant appealed and the Superior Court affirmed Appellant's judgments of sentence on February 5, 2009. [See Commonwealth v. Alexander, 2551 EDA 2007 (Pa. Super. filed Feb. 5, 2009) (unpublished mem.).] Appellant filed a petition for allowance of appeal, which the Supreme Court of Pennsylvania denied on August 3, 2010. [See Commonwealth v. Alexander, 3 A.3d 669 (Pa. 2010). Appellant did not file a petition for a writ of certiorari with the Supreme Court of the United States.]

Appellant filed a pro se PCRA petition on May 9, 2011. He filed an amended PCRA petition on December 22, 2017^[Fn2] and a supplemental petition on May 3, 2018, seeking reinstatement of his direct appeal and post-sentence motion rights. After the Commonwealth responded, the [PCRA court] issued a dismissal notice under [Pa.R.Crim.P.] 907, on October 17, 2018. PCRA counsel filed a response to the [PCRA court's] Rule 907 notice on March 3, 2020, raising the aforementioned ineffectiveness claims. The Commonwealth filed its motion to dismiss the supplemental claims on June 23, 2020. On September 21, 2020, Judge Minehart issued a second notice of intent to dismiss under Rule 907. On November 19, 2020, the [PCRA] court formally dismissed Appellant's PCRA petition. However, on November 19, 2020, the [PCRA] court rescinded that order. [Subsequent] counsel entered an appearance shortly thereafter and filed the instant supplemental pleading. On September 28, 2021, Appellant filed a supplemental PCRA. On March 17, 2022, [the] Commonwealth filed a motion to dismiss [Appellant's] PCRA petition.

^[Fn2] Between the filing of Appellant's pro se petition and his amended petition, several different counsel were appointed and withdrew, resulting in multiple continuances. This led to Appellant's amended petition not being filed for over six years.

PCRA Ct. Op., 10/23/23, at 1-4 (footnote omitted and formatting altered).

The PCRA court entered an order dismissing Appellant's PCRA petition on May 26, 2023.^[3] Appellant filed a timely counseled notice of appeal on May 27, 2023. Although the PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement, the PCRA court issued an opinion addressing Appellant's PCRA claims.

On June 24, 2023, Appellant's counsel, Teri B. Himebaugh, Esq., filed an application to withdraw, stating that Appellant wished to proceed pro se. See Application to Withdraw as Counsel, 6/24/23. This Court entered an order on June 30, 2023, remanding the matter to the PCRA court to conduct a Grazier^[4] hearing. On November 8, 2023, the PCRA court held a Grazier hearing and found that Appellant knowingly, intelligently, and voluntarily waived his right to counsel and granted Attorney Himebaugh's motion to withdraw as counsel. See PCRA Ct. Order, 11/9/23.

Appellant raises the following issues for our review:

1. Did defense counsel^[5] render ineffective assistance at trial in failing to lodge a proper objection, and failing to take appeal issue with, the prosecution's presentation of testimony and argument about prior statements by Michelle Carter, including an accusation that [Appellant] had "killed someone" two weeks before, and were all previous PCRA counsel ineffective in failing to investigate identify or present this instance of defense counsel's ineffectiveness as a PCRA claim?

2. Did defense counsel render ineffective assistance at trial in failing to lodge any objection, and failing to take any appeal issue with, the prosecution's presentation of testimony and argument repeatedly referencing [Appellant's] pre-arrest silence and refusals to cooperate with police investigators, and were all previous PCRA counsel ineffective in failing to investigate, identify or present this instance of defense counsel's ineffectiveness as a PCRA claim?

3. Did defense counsel render ineffective assistance at trial in failing to lodge a proper objection, and failing to take appeal issue with, the prosecution's presentation of testimony and argument referencing other, unrelated criminal acts attributed to [Appellant], without any cautionary instruction or guide or limit jury consideration of same, and were all previous PCRA counsel ineffective in failing to investigate, identify or present this instance of defense counsel's ineffectiveness as a PCRA claim?

4. Did defense counsel render ineffective assistance at trial in failing to lodge any objection, and failing to take any appeal issue with, the trial court's instruction, during its jury charge, directing that the jury "must give weight" to testimony about "statements made" by that witness, and were all prior PCRA counsel ineffective in failing to investigate, identify or present this instance of defense counsel's ineffectiveness as a PCRA claim?

5. Did defense counsel

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