Commonwealth v. Ellison

COMMONWEALTH OF PENNSYLVANIA v. SOLOMON MCKEEVER ELLISON, III Appellant

J-S40045-20

No. 305 EDA 2020

SUPERIOR COURT OF PENNSYLVANIA

April 8, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered December 23, 2019

In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0000167-2014

BEFORE: SHOGAN, J., KING, J., and COLINS, J.^*

MEMORANDUM BY COLINS, J.:

Appellant, Solomon McKeever Ellison, III, appeals from the order dismissing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA").¹ We affirm.

The PCRA court described the relevant factual background of this case as follows:

The incident in question occurred on December 9, 2013. [Appellant] and [R.S. ("R.S." or "the Victim")] met online through a [dating] website. The Victim testified she went onto the website because she needed money. She began talking to [Appellant] frequently during the few days prior to the incident in question. At some point they discussed her financial issues and [Appellant] offered to pay her money for oral sex. On the afternoon of December 9th, the Defendant went to the Victim[']s house.

Initially, [Appellant] and the Victim sat down to talk and smoke marijuana that she had provided. After smoking, [Appellant] took out some money to pay the [V]ictim for the agreed upon sexual contact, however, he only produced forty dollars even though they previously agreed to a payment of a hundred dollars. When the Victim refused to comply with [Appellant's] request for oral sex, he grabbed her hair, pulled her face down to his crotch, and unbuttoned his pants. He also pulled out a box cutter. The Victim began to perform oral sex. While she was performing oral sex he put the box cutter to the Victim's chin, and then he cut the bottom of her chin which she did not notice until she saw blood on his pants.

She then backed away to see where the blood had come from and a fight between the two ensued. [Appellant] attempted to drag the Victim up the stairs, however, the Victim resisted. When she resisted by screaming and pushing him, [Appellant] lifted her up and then slammed her onto the floor, as well as elbowing her in the face. When she was able to push him back again, he fled out through the back door. Then, the Victim asked for help from a neighbor and called the police. The fight resulted in multiple injuries for the Victim, including bruises and an injured hand from going through a window during the fight.

In addition to this conduct[, Appellant] also fled from the police when they attempted to arrest him.

PCRA Court Opinion, 4/20/20, at 2-3 (citations omitted).

Appellant proceeded to a jury trial in October 2015, at which he was represented by Denis Leonard, Esquire. At the conclusion of trial, the jury convicted Appellant of involuntary deviate sexual intercourse, sexual assault, indecent assault, aggravated assault with a deadly weapon, possession of an instrument of crime, false identification to law enforcement authorities, and unsworn falsification to authorities.² The trial court sentenced Appellant to anaggregate term of confinement of 30 to 60 years, followed by 2 years of probation.

Appellant appealed, and on September 26, 2017, this Court affirmed the judgment of sentence. Commonwealth v. Ellison, No. 743 EDA 2016 (Pa. Super. filed September 26, 2017). Appellant filed a petition for allowance of appeal with our Supreme Court, which the Court denied on May 7, 2018. Commonwealth v. Ellison, 185 A.3d 278 (Pa. 2018). Appellant did not seek review of his judgment with the United States Supreme Court.

On April 26, 2019, Appellant filed this timely PCRA petition.³ An evidentiary hearing was held on the PCRA petition on September 13, 2019 at which Appellant's trial counsel testified. On December 23, 2019, following the submission of post-hearing briefs, the PCRA court entered an order dismissing the petition. Appellant thereafter filed a timely appeal.⁴

Appellant raises the following issues on appeal:

I. Was counsel ineffective under the Sixth Amendment of the U.S. Constitution and Article [IX, S]ection 1⁵ and Article [V, Section] 9 of the Pennsylvania Constitution for not making the Commonwealth meet their burden of proof regarding the admissibility of prior bad act evidence and for instead stipulating to its admission? Alternately, did the trial court err in finding that the [Pennsylvania Rule of Evidence] 404(b) burden was met by the Commonwealth in relation to the facts of this case and counsel at trial and was counsel on direct appeal ineffective for failing to preserve and assert the trial court error?

II. Was counsel ineffective under the Sixth Amendment of the U.S. Constitution and Article [IX, S]ection 1 and Article [V, Section] 9 of the Pennsylvania Constitution for entering into a factually misleading and prejudicial stipulation?

III. Was counsel ineffective under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article [IX, S]ection 1 and Article [V, Section] 9 of the Pennsylvania Constitution for failing to object to the prosecutor's improper comments during closing argument and ask for appropriate relief?

IV. Were Appellant's constitutional rights to due process of law and a fair trial [] violated by the cumulative impact of trial counsel[']s ineffectiveness in violation of the Sixth Amendment?

Appellant's Brief at 3 (suggested answers omitted).

We review the denial of a PCRA petition to determine whether the record supports the PCRA court's findings and whether its decision is free of legal error. Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018). The PCRA court's credibility determinations are binding on this Court when supported bythe record. Id. We review the PCRA court's findings and the evidence of record in the light most favorable to the Commonwealth as the winner at trial. Id. We may affirm the PCRA court's ruling on any grounds that support it. Commonwealth v. Smith, 194 A.3d 126, 132 (Pa. Super. 2018).

Appellant asserts claims of ineffective assistance of counsel. In reviewing these claims, we begin our analysis with the presumption that counsel has rendered effective assistance. Commonwealth v. VanDivner, 178 A.3d 108, 114 (Pa. 2018). To overcome that presumption, the defendant must establish each of the following three elements:

(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error[.]

Id. Boilerplate allegations are insufficient to meet the petitioner's burden of establishing ineffective assistance under this standard. Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (citation omitted).

"Arguable merit exists when the factual statements are accurate and could establish cause for relief. Whether the facts rise to the level of arguable merit is a legal determination." Commonwealth v. Urwin, 219 A.3d 167, 172-73 (Pa. Super. 2019) (citation omitted).

With regard to the second, reasonable basis prong, we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis. We will conclude that counsel's chosen strategy lacked a reasonable basis only if Appellant proves that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.

Chmiel, 30 A.3d at 1127 (internal citations and quotation marks omitted).

To satisfy the prejudice prong of the ineffective assistance test, the petitioner must prove that "there is a reasonable probability that, but for counsel's error, the outcome of the trial would have been different." Commonwealth v. Jones, 210 A.3d 1014, 1019 (Pa. 2019). As our Supreme Court has explained, this "actual prejudice" standard is "more exacting" than the harmless error standard applied on direct review to a claim that the trial court erred in taking or failing to take certain action:

The harmless error standard [] states that whenever there is a reasonable possibility that an error might have contributed to the conviction, the error is not harmless. This standard, which places the burden on the Commonwealth to show that the error did not contribute to the verdict beyond a reasonable doubt, is a lesser standard than the [actual] prejudice standard, which requires the defendant to show that counsel's conduct had an actual adverse effect on the outcome of the proceedings. This distinction appropriately arises from the difference between a direct attack on error occurring at trial and a collateral attack on the stewardship of counsel. In a collateral attack, we first presume that counsel is effective, and that not every error by counsel can or will result in a constitutional violation of a defendant's Sixth Amendment right to counsel.

Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014) (internal citations, quotation marks, brackets, and emphasis omitted).

In his first appellate issue, Appellant argues that the PCRA court erred in denying his claim that trial counsel was ineffective for stipulating to the admission of prior bad act evidence concerning Appellant's 2008 convictions of attempted indecent assault and aggravated assault with a deadly weapon. The Commonwealth first stated its intention to admit this prior bad actevidence at an August 28, 2014 hearing regarding the Commonwealth's motion for joinder of the present case with another matter docketed at CP-23-CR-0000527-2014 ("No. 527-14"), in which Appellant was also charged with perpetrating a separate sexual assault. The trial court denied the joinder motion, but stated that if it permitted the introduction of Appellant's 2008 convictions pursuant to a forthcoming Pennsylvania Rule of Evidence 404(b) motion in either the present case or in No. 527-14, that the evidence would be likely admissible in the other case. N.T., 8/28/14, at 19-20.⁶

On December 12, 2014...