Commonwealth v. Betts

240 A.3d 616

COMMONWEALTH of Pennsylvania

v.Tasai Marquise BETTS, Appellant

Commonwealth of Pennsylvania

v.Tasai Betts, Appellant

No. 1159 MDA 2019

No. 1160 MDA 2019

Superior Court of Pennsylvania.

Submitted June 15, 2020

Filed September 15, 2020

Damian J. DeStefano, Camp Hill, for appellant.

Ryan H. Lysaght, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

OPINION BY BOWES, J.:

Tasai Betts appeals from the trial court's June 17, 2019 order dismissing his petition for relief under the Post-Conviction Relief Act ("PCRA"). After careful review, we vacate the order and remand with instructions.

The factual and procedural history of this case concerns two episodes of criminal behavior. On the evening of June 13, 2013, a man sleeping in his car near the 1700 block of Miller Street in Harrisburg, Pennsylvania, was shot and robbed by a masked assailant. In a separate incident, Appellant was arrested on June 22, 2013, following a lengthy vehicle pursuit with the Swatara Township and Highspire Police Departments on Interstate 83, which ended in an officer-involved crash. See N.T. Trial, 3/2/15, at 14-17. Officers recovered two handguns from Appellant's car, one of which was forensically linked to the aforementioned shooting.

In connection with the shooting at docket number CP-22-CR-0001004-2014 ("Docket No. 1004"), a jury convicted Appellant of attempted criminal homicide, robbery, aggravated assault, carrying a firearm without a license, and possession of a firearm by a minor. With respect to the vehicle chase and ensuing crash at docket number CP-22-CR-0003339-2013 ("Docket No. 3339"), a jury convicted Appellant of aggravated assault, four counts of recklessly endangering another person ("REAP"), possession of a firearm with an altered manufacturer number, possession of a firearm by a minor, carrying a firearm without a license, fleeing and eluding, possession of a controlled substance, and possession of drug paraphernalia.

On May 14, 2015, the trial court sentenced Appellant at both dockets to an aggregate term of twenty-one to forty-two years of imprisonment, followed by fifteen years of probation. On direct appeal, this Court affirmed Appellant's judgment of sentence. See Commonwealth v. Betts , 159 A.3d 1018 (Pa.Super. 2016) (unpublished memorandum). On July 10, 2017, our Supreme Court denied Appellant's petition for allowance of appeal. See Commonwealth v. Betts , 642 Pa. 48, 169 A.3d 1039 (2017) (per curiam order).

Appellant filed a timely pro se PCRA petition alleging, inter alia , that appellate counsel had erred by challenging the weight, but not the sufficiency, of the evidence underlying Appellant's convictions. See PCRA Petition, 11/8/17, at 12-13. Damian DeStefano, Esquire, was appointed to represent Appellant. He filed a supplemental PCRA memorandum arguing, inter alia , that Appellant's trial counsel was ineffective by "opening the door" to the introduction of statements that Appellant had previously robbed another an individual named Robert Parker, Jr. at gunpoint.¹

On August 1, 2019, a PCRA hearing was held. During that hearing, the PCRA court heard testimony from both Appellant and his trial counsel concerning the cross-examination of Mr. Parker. See N.T. PCRA Hearing, 8/1/19, at 2-16. After entertaining briefs from both parties, the trial court filed an opinion concluding that trial counsel did not render ineffective assistance. See Memorandum Opinion and Order, 12/31/18, at 8-10. The order attached to the opinion notified Appellant of the PCRA court's intent to dismiss his petition, and provided him an opportunity to respond pursuant to Pa.R.Crim.P. 907.² Id .

Attorney DeStefano submitted a reply to the notice of dismissal that largely reiterated the prior arguments concerning trial counsel's allegedly erroneous cross-examination. See Response to Notice of Intent to Dismiss, 1/22/19, at ¶¶ 2(a)-(g). Two days later, Appellant filed pro se objections alleging that Attorney DeStefano had rendered ineffective assistance by failing to: (1) assert trial counsel's ineffectiveness for failing to refute fingerprint evidence tying Appellant to the crashed vehicle; and (2) raise direct appellate counsel's ineffectiveness for failing to seek a new trial on the basis of allegedly inconsistent statements made by Mr. Parker post-trial.³ See Appellant's Pro Se Objections, 1/24/19, at ¶¶ 2(a)-(b).⁴ Appellant's timely pro se objections were accepted for filing and docketed in the trial court.⁵ See Trial Court Consolidated Docket, 10/22/19, at #33.

On June 17, 2019, the PCRA court entered a final order dismissing Appellant's PCRA petition. In the text of this order, the PCRA court referenced only the arguments concerning trial counsel's cross-examinations of Mr. Parker. On July 10, 2019, Appellant filed a single pro se notice of appeal while still represented by Attorney DeStefano. Five days later, Attorney DeStefano submitted timely notices of appeal at both docket numbers noted above.⁶ That same day, he also filed a petition on Appellant's behalf that purported to seek permission to proceed pro se and requested a hearing pursuant to Commonwealth v. Grazier , 552 Pa. 9, 713 A.2d 81 (1998).⁷

On August 5, 2019, the Grazier hearing was held. However, Appellant advised the PCRA court that he had not requested a Grazier hearing, but wished to discuss his allegations of Attorney DeStefano's ineffectiveness and obtain substitute counsel. The following exchange took place:

APPELLANT: Well, I thought that this hearing was to see if [Attorney DeStefano] was ineffective.

THE COURT: No, you never indicated that he was ineffective.

APPELLANT: That's what I thought this hearing was about, so I could raise the claim that—

THE COURT: This hearing is to determine whether or not you can afford your own counsel or you're gonna represent yourself or continue with [Attorney DeStefano].

APPELLANT: Well, I will—I guess at this point in time I'm gonna represent myself.

N.T. Grazier Hearing, 8/5/19, at 4. After a colloquy, the PCRA court granted Appellant leave to proceed pro se and Attorney DeStefano leave to withdraw.

Appellant was directed to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b), and he timely complied. The PCRA court filed a Rule 1925(a) opinion. Thereafter, Appellant filed a number of pro se applications, which were denied. Then, Attorney DeStefano strangely filed an application seeking remand on Appellant's behalf.⁸ See Petition for Remand to Trial Court, 11/5/19, at 1-6. This filing asserted that Appellant had preserved claims related to Attorney DeStefano's alleged ineffectiveness.⁹ Id . at ¶¶ 19(a)-(j). Thereafter, he apparently resumed representation of Appellant, and filed a brief on his behalf. Appellant has not filed a pro se brief, and contemporaneous filings cast significant doubt on the nature and extent of the attorney-client relationship. See Pro Se Motion for Enlargement of Time, 2/13/20, at ¶ 5 ("As it stands, it is unclear whether Appellant is actually pro se or is still represented by [Attorney DeStefano].").

The brief filed on Appellant's behalf by Attorney DeStefano raises the following issue for our review: "Whether the trial court erred when it dismissed Appellant's petition for post[-]conviction relief following an evidentiary hearing regarding ineffectiveness of trial counsel?" Appellant's brief at 7 (excessive capitalization omitted).

Our standard of review when considering an order dismissing a PCRA petition is "whether that determination is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Williams , 220 A.3d 1086, 1090 (Pa.Super. 2019) (citing Commonwealth v. Johnston , 42 A.3d 1120, 1126 (Pa.Super. 2012) ).

Before addressing the argument presented by Attorney DeStefano, we are compelled to address a number of procedural irregularities in this case concerning Appellant's allegations of PCRA counsel's ineffectiveness, and the PCRA court's treatment of those claims. Specifically, "where an indigent, first-time PCRA petitioner was denied his right to counsel—or failed to properly waive that right—this Court is required to raise this error sua sponte and remand for the PCRA court to correct that mistake." Commonwealth v. Stossel , 17 A.3d 1286, 1290 (Pa.Super. 2011).

As this is Appellant's first PCRA petition, he enjoys a well-recognized right to legal representation during this initial collateral review of his judgment of sentence. See Commonwealth v. Albert , 522 Pa. 331, 561 A.2d 736, 738 (1989) ("[I]n this Commonwealth one who is indigent is entitled to the appointment of counsel to assist with an initial collateral attack after judgment of sentence."). In this context, "the right to counsel conferred on initial PCRA review means ‘an enforceable right’ to the effective assistance of counsel." See Commonwealth v. Holmes , 621 Pa. 595, 79 A.3d 562, 583 (2013) (quoting Commonwealth v. Albrecht , 554 Pa. 31, 720 A.2d 693, 699-700 (1998) ).

While the existence of this right is well-established, the procedure for its enforcement, i.e. , raising allegations of PCRA counsel's ineffectiveness, remains ill-defined under Pennsylvania law:

[T]here is no formal mechanism in the PCRA for a second round of collateral attack focusing upon the performance of PCRA counsel, much less is there a formal mechanism designed to specifically capture claims of [previous counsel's] ineffectiveness defaulted by initial-review PCRA counsel. Frankly, this Court has struggled with the question of how to enforce the "enforceable" right to effective PCRA counsel within the strictures of the PCRA .... The question of whether and how to vindicate the right to effective PCRA counsel has been discussed at length in majority opinions and in responsive opinions .... But, the Justices have not been of one mind respecting how

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