Commonwealth v. Anderson, J-S06016-15

COMMONWEALTH OF PENNSYLVANIA Appellee v. TALIB ANDERSON Appellant

J-S06016-15

No. 60 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

FEBRUARY 19, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order December 12, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0211481-2001

BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.^*

MEMORANDUM BY LAZARUS, J.:

Talib Anderson appeals from the order of the Court of Common Pleas of Philadelphia County, dismissing without a hearing his petition brought pursuant to the Post Conviction Relief Act.¹ We affirm based on the opinion of the Honorable Gwendolyn Bright.

On direct appeal, this Court set forth the relevant facts of this case as follows:

[On October 17, 1998,] the victim robbed a group of men playing craps on the street, including Jarod Strickland. Strickland was mad, and told one witness "somebody was going to pay" and he would "be back." Early the next morning, [Anderson] and another male, riding in a car, stopped Beth Ann Parsons and [Anderson] asked her if she knew where the victim was. She told them his usual whereabouts. Parsons then saw the victim and told him that someone was looking for him. Approximately 1 to 2 hours later, she saw the victim again. At that time, she saw [Anderson] and another man pull up in a car, exit the car, walk past her and start shooting the victim. She saw the victim fall to the ground.

David Harrington, who knew the victim, [Anderson], and Strickland, was awakened that morning by gunshots. After hearing the shots, he exited his house and saw Strickland standing over the victim, holding a gun. Harrington also saw [Anderson] standing next to a nearby car calling to Strickland, "Come on. Come on." He subsequently saw both [Anderson] and Strickland get in the car, and the car drive away.

The victim died; he had been shot six times; the bullets were fired from two different guns.

Commonwealth v. Anderson, No. 1223 EDA 2003, unpublished memorandum at 2-3 (Pa. Super. filed June 4, 2004) (citations omitted).

On January 24, 2003, a jury convicted Anderson of third degree murder and criminal conspiracy, and on April 2, 2003, the court sentenced him to 16 to 32 years' incarceration. This Court affirmed the judgment of sentence, and on December 28, 2006, the Supreme Court of Pennsylvania denied Anderson's petition for allowance of appeal. Commonwealth v. Anderson, 916 A.2d 630 (Pa. 2006).

Anderson filed a timely pro se PCRA petition on September 5, 2007. The court appointed counsel, who subsequently withdrew, and on November 9, 2012, new counsel filed the instant amended petition. The Commonwealth filed a motion to dismiss on March 15, 2013. By notice dated October 24, 2013, the court informed Anderson that it intended todismiss his PCRA petition without a hearing. See Pa.R.Crim.P. 907. The court dismissed the petition on December 12, 2013.

This timely appeal followed, in which Anderson raises the following issue for our review:

Did the trial court err in denying [Anderson] an evidentiary hearing when [he] alleged and demonstrated on the record that trial defense counsel was ineffective when counsel failed to file a post sentence motion asserting that the verdict was against the weight of the evidence?

Brief of Appellant, at 2.

In reviewing an appeal from the denial of PCRA relief, "our standard of review is whether the findings of the court are supported by the record and free of legal error." Commonwealth v. Martin, 5 A.3d 177, 182 (Pa. 2010) (citations omitted).

To be eligible for relief under the PCRA, Anderson must prove by a preponderance of the evidence that his conviction 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. § 9543(a)(2)(ii). "Counsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant." Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the defendant must show that the underlying claim had arguable merit, counsel had no reasonable basis for his or her action, and counsel's action resultedin prejudice to the defendant. Commonwealth v. Prince, 719 A.2d 1086, 1089 (Pa. Super. 1998).

After a review of the parties' briefs, the relevant case law, and record on appeal, we affirm the trial court's order dismissing Anderson's PCRA petition based upon Judge Bright's Pa.R.A.P. 1925(a) opinion, in which she explains that Anderson failed to establish a right to relief. We instruct the parties to attach a copy of Judge Bright's decision in the event of further proceedings in the matter.

Order affirmed.

Judgment Entered.

/s/_________

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2015

OPINION

BRIGHT, J.

On February 7, 2001 Appellant was arrested and charged with Murder, Criminal Conspiracy, and related offenses, and on January 24,2003, following a jury trial before this Court, the Honorable John J. Poserina, Jr. presiding, he was found guilty of Murder of the Third Degree and Criminal Conspiracy, On April 2, 2003 Appellant was sentenced to a period of incarceration of not less than sixteen (16) years nor more than thirty-two (32) years for Murder of the Third Degree and of not less than five (5) nor more than ten (10) years for Criminal Conspiracy. On April 11, 2003 Appellant filed a timely Notice of Appeal to the Superior Court of Pennsylvania and on August 4, 2004 the Judgment of Sentence was affirmed. 1223 EDA 2003. On August 18, 2006 Appellant filed a Petition for Allowance of Appeal in the Supreme Court of Pennsylvania and on December 28, 2006 the Petition for Allowance of Appeal was denied. 388 EAL 2006.

On September 5, 2007 Appellant filed the instant Petition pursuant to the Post Conviction Relief Act² (hereinafter referred to as PCRA) pro se, and PCRA counsel was appointed. On Sepatember 13, 2010 Appellant filed an Amended PCRA Petition, pro se. On December 5, 2011 PCRA counsel was permitted to withdraw and new PCRA counsel was appointed. On November 9, 2012 PCRA counsel filed an Amended PCRA Petition and on December 12, 2012 Appellant filed aMotion to Supplement PCRA Petition pro se. On March 15, 2013 the Commonwealth filed a Motion to Dismiss, following Notice pursuant to Pa.R.Crim.P. 907, the PCRA Petition was dismissed, This timely appeal followed on December 19, 2013.

Pursuant to Pa.R.A.P. 1925(b) Appellant was instructed to file a Statement of Matters Complained Of On Appeal. Appellant responded claiming that the Court erred when it dismissed the Appellant's PCRA Petition without holding an evidentiary hearing; that trial counsel rendered ineffective assistance in failing to file and litigate a post sentence motion asserting the weight of the evidence; that the trial court erred in not reinstating Appellant's right to file post sentence motions nunc pro tunc; and that the Court erred in not reinstating Appellants right to file an appeal from the judgment of sentence nunc pro tunc.³

FACTS

The facts are summarized in the trial courts' 1925(a) Opinion on direct appeal and in the documents filed of record in this proceeding.

On October 17, 1998 Decedent, Damon Blazer, robbed a group of men playing craps at the corner of Warnock and Indiana Streets, Philadelphia, PA. Jarod Strickland, Appellant's co-conspirator was one of the men playing craps and he vowed retribution. N.T. 1/22/2003 @ 108-130. The next morning, Appellant and Strickland began canvassing the area around the 3000 block of North Warnock Street near Germantown Avenue, looking for the decedent. They stopped Beth Ann Parsons who lived in the area and inquired about Decedent's whereabouts. Parsons told them that Decedent usually sold drugs on Warnock Street and then she proceeded home. Parsons returned approximately two hours later at which point she observed Appellant and Strickland exit their car carrying guns and observed them repeatedly shoot at Decedent. N.T. 1/21/2003 @ 83-88, 91, 93, 120.

David Harrington was inside bis home on Warnock Street at the time of the shooting and upon hearing the gunshots exited his house whereupon he observed Strickland standing over Decedent holding a gun, Harrington heard Appellant admonishing Strickland to 'come on, come on.' The two men then entered their vehicle and fled. Id. @ 125-145.

Philadelphia Police Sergeant Jonathan Josey responded to the scene and observed Decedent bleeding from multiple gunshot wounds. Decedent was transported to Temple Hospital with seven gunshot wounds to the head, chest, and side, and later died as a result of his injuries. Police recovered seven fired cartridge casings from the scene and determined that they had been fired from two different weapons, Parsons and Harrington later identified Appellant as one of the shooters.

DISCUSSION

Appellant complains that the Court committed error in denying his PCRA Petition asserting multiple incidents of ineffective assistance of counsel and in denying his request for an evidentiary hearing. These claims are without merit,

42 Pa.C.S.A. § 9543 provides, in pertinent part, as follows:

"§ 9543. Eligibility for relief

(a) General rule.--To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:

(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:

(i) currently serving a sentence of imprisonment, probation or parole for the crime;

(ii) awaiting execution of a sentence of death for the crime; or

(iii) serving a sentence which must expire before the person may commence serving the disputed sentence,

(2) That the conviction or sentence resulted from one or mote of the following;

(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United

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