Commonwealth v. Armstrong

1

COMMONWEALTH OF PENNSYLVANIA v. SHAVONE ARMSTRONG, Appellant

No. 1130 EDA 2022

No. J-S45036-22

Superior Court of Pennsylvania

March 1, 2023

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order Entered March 4, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at CP-51-CR-0011385-2016

Joseph D. Seletyn, Esq.

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM

MURRAY, J.

Shavone Armstrong (Appellant) pro se appeals from the order dismissing her petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The PCRA court summarized the procedural history as follows:

On February 26, 2018, following a jury trial …[ Appellant] was convicted of one count each of murder of the first degree (18 Pa.C.S. § 2502(a)), robbery (18 Pa.C.S § 3701(a)(1)), kidnapping (18 Pa.C.S. § 2901(a)(1)), conspiracy to commit robbery (18 Pa.C.S. §§ 903, 3701(a)(1)), conspiracy to commit kidnapping (18 Pa.C.S. §§ 903, 2901(a)(1)), conspiracy to commit murder of the first degree (18 Pa.C.S. §§ 903 & 2502(a)), unlawful restraint (18 Pa.C.S. § 2902(a)(1)), and possessing an instrument of crime [] (18 Pa.C.S. § 907). The [trial] court immediately imposed an aggregate sentence of life in prison without the possibility of parole. At trial, [Appellant] was represented by Gary Server, Esquire [(Mr. Server or Trial Counsel)] …. [Appellant was represented in connection with pre-trial proceedings by Qawi Abdul Rahman, Esquire (Attorney Rahman).]

[Appellant] filed post-sentence motions, which the [trial] court denied on June 21, 2018. On November 25, 2019, the Superior Court affirmed [Appellant's] judgment of sentence[. Commonwealth v. Armstrong, 24 A.3d 792 (Pa. Super. 2019) (unpublished memorandum) (affirming trial court's rejection of Appellant's challenges to the weight and sufficiency of the evidence).] [O]n June 16, 2020, the Supreme Court of Pennsylvania denied allocatur. [Commonwealth v. Armstrong, 2020 Pa. LEXIS 3339 (Pa. 2020).] [Appellant] was represented on post-sentence motions and appeal by Mr. Server.

On November 23, 2020, [Appellant timely] … filed a pro se petition ("PCRA Petition") raising numerous grounds for relief. Gina Amoriello, Esquire [(Ms. Amoriello)], was appointed to represent [Appellant] on January 22, 2021. On June 23, 2021, Ms. Amoriello filed a motion to withdraw as counsel and a letter, pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) [(en banc), and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)], stating there was no merit to [Appellant's] claims for collateral relief ("Finley letter"). However, after finding Ms. Amoriello's [Finley] letter to be inadequate, the [PCRA] court ordered her to file either a supplemental Finley letter or an amended [PCRA] petition. …

Thereafter, Ms. Amoriello filed a supplemental Finley letter ("Supplemental Finley Letter") on October 24, 2021, again stating there was no merit to [Appellant's] claims for collateral relief. On November 30, 2021, [Appellant] filed a pro se response to Ms. Amoriello's Supplemental Finley Letter ("Finley Response"), in which [Appellant] raised three new issues. On December 15, 2021, Ms. Amoriello filed a reply to [Appellant's] Finley Response. The [PCRA] court issued notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss [Appellant's] petition on December 20, 2021, to which [Appellant] filed a pro se response ("907 Response") on January 12, 2022. Ms. Amoriello filed a reply to [Appellant's] 907 Response … on February 2, 2022. On March 4, 2022, the [PCRA] court dismissed [Appellant's] PCRA Petition and granted Ms. Amoriello's motion to withdraw.

PCRA Court Opinion, 6/3/22, at 1-3 (footnotes omitted; some citations and capitalization modified).

Appellant timely filed a pro se appeal.^[1] Appellant thereafter filed a court-ordered Pa.R.A.P. 1925(b) statement of errors, and the PCRA court issued a responsive Pa.R.A.P. 1925(a) opinion.

Appellant presents four issues for review:

A. Did the Trial Court err in not granting Appellant relief based on the fact that she suffered layered ineffective assistance of counsel?

B. Did the Trial Court err in not granting Appellant relief based on judicial misconduct?

C. Was Appellant's due process rights [sic] violated by police misconduct?

D. Did prosecutorial misconduct violate Appellant's Constitutional rights and deprive her of a fair trial?

Appellant's Brief at 4.

"When reviewing the denial of a PCRA petition, an appellate court must determine whether the PCRA court's order is supported by the record and free of legal error." Commonwealth v. Drummond, 285 A.3d 625, 633 (Pa. 2022) (citation, quotations, and footnote omitted).

In her first issue, Appellant argues the PCRA court erred in rejecting her claim that Trial Counsel and Attorney Rahman were ineffective. See Appellant's Brief at 10-14. Appellant contends Trial Counsel was ineffective for failing to:

• Spend adequate time prior to trial consulting with Appellant, id. at 11;

• "Present evidence, make a defense, [and] investigate mitigating evidence," id. at 13;

• "Investigate any evidence, such as attacking [Appellant's] phone records," id. at 12;

• "File pretrial motions to suppress evidence[,] i.e., the knife which had no DNA or fingerprints belonging to Appellant[.]" Id. at 11.

With respect to Attorney Rahman, Appellant claims he improperly "attempted to pressure Appellant into taking a plea agreement[,] saying if [Appellant] didn't waive the preliminary hearing[,] she wouldn't be offered a deal." Id. at 10.

Pennsylvania law presumes counsel is effective, and a PCRA petitioner bears the burden of proving otherwise. Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018). A PCRA petitioner will be granted relief only when she proves, by a preponderance of the evidence, that her conviction or sentence resulted from the "[i]neffective 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.'" Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting 42 Pa.C.S.A. § 9543(a)(2)(ii)).

To establish ineffectiveness, the petitioner must plead and prove:

(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) [s]he suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability the result of the proceeding would have been different. Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective assistance of counsel test from Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987)). … Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim. Finally, because a PCRA petitioner must establish all Pierce prongs to be entitled to relief, we are not required to analyze the elements of an ineffectiveness claim in any specific order; thus, if a claim fails under any required element, we may dismiss the claim on that basis.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citations modified); see also Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011) ("When evaluating ineffectiveness claims, judicial scrutiny of counsel's performance must be highly deferential." (citation and quotes omitted)).

We first address Appellant's one-sentence claim of Attorney Rahman's ineffectiveness. Appellant's Brief at 10 (stating Attorney Rahman "attempted to pressure Appellant into taking a plea agreement, saying if she didn't waive the preliminary hearing she wouldn't be offered a deal.").

It is settled that "mere issue spotting without analysis or legal citation to support an assertion precludes appellate review of a matter." Coulter v. Ramsden, 94 A.3d 1080, 1089 (Pa. Super. 2014) (citation omitted); see also Pa.R.A.P. 2119(a) (stating the appellant's brief "shall have ... such discussion and citation of authorities as are deemed pertinent."). Moreover, an "appellant's failure to develop any argument at all concerning the second and third prongs of the ineffectiveness test … results in waiver[.]" Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002). Thus, Appellant has waived this claim. See id.; see also Commonwealth v. Lewis, 63 A.3d 1274, 1278 (Pa. Super. 2013) ("Although this Court is willing to construe liberally materials filed by a pro se litigant, pro se status generally confers no special benefit upon an appellant.").

Waiver notwithstanding, Appellant's claim does not merit relief. The PCRA court explained:

[Appellant asserts Attorney] Rahman waived the preliminary hearing without asking [Appellant] if she instead wanted to present an argument at the hearing, and that [Attorney Rahman] only visited [Appellant] on one occasion prior to her preliminary hearing. PCRA Petition[, 11/23/20, at] ¶¶ 12, 14. However, it is well established that once a defendant has been convicted of an offense beyond a reasonable doubt, any defects regarding the sufficiency of the evidence adduced at a preliminary hearing are deemed harmless. Commonwealth v. Wilson, 172 A.3d 605, 610 (Pa. Super. 2017) (quotation marks and citation omitted). Therefore, even if the Commonwealth would not have been able to establish a prima facie case at the time of the preliminary hearing, [Appellant] would not be entitled to relief. Id.

PCRA Court Opinion, 6/3/22, at 7-8. Our review reveals record and legal support for the above reasoning.

With respect to Appellant's claim of Trial Counsel's ineffectiveness, the PCRA court stated:

As for [T]rial [C]ounsel, [Appellant] avers that Mr. Server was ineffective because he only came to meet [Appellant] three times before the trial. PCRA Petition[, 11/23/20,] at ¶

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