Commonwealth v. Isaac

205 A.3d 358

COMMONWEALTH of Pennsylvania, Appellee

v.Prince ISAAC, Appellant

No. 389 EDA 2018

Superior Court of Pennsylvania.

Submitted August 27, 2018

Filed February 26, 2019

Alexandre N. Turner, Philadelphia, for appellant.

Nicholas J. Casenta, Jr., Assistant District Attorney, and Gerald P. Morano, Assistant District Attorney, West Chester, for Commonwealth, appellee.

BEFORE: OLSON, STABILE, JJ., and FORD ELLIOTT, P.J.E.

OPINION BY STABILE, J.:

Appellant, Prince Isaac, appeals from the December 21, 2017 order denying relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541 -46. We affirm.

Appellant represented himself at trial after a defective waiver-of-counsel colloquy—the trial court never apprised Appellant of the elements of the charged offenses.¹ Appointed direct appeal counsel did not raise this issue. On collateral review, Appellant claimed direct appeal counsel rendered ineffective assistance. The PCRA court originally denied relief, but a three-judge panel of this Court reversed, concluding that the defective waiver colloquy was an issue of arguable merit.² We remanded to the PCRA court for an assessment of counsel's strategy and the prejudice, if any, to Appellant. The PCRA court once again denied relief, and this timely appeal followed.

The prior panel quoted the underlying facts:

[Appellant] and his brother and co-conspirator, Shamek Hynson [ (Hynson) ], had a powerful motive to kill the victim, Omar Reid [ (the victim) ], on October 18, 2004. The murder was an act of retaliation against [the victim] for an incident involving another one of their brothers—Ramek Neal—that took place nearly one year earlier. On November 5, 2003, at approximately 10:30 p.m., Neal and another individual broke into [the victim's] apartment at 416 Victoria Drive, in the Regency Park complex located in Coatesville, Chester County, Pennsylvania. Neal brandished a pistol while demanding [the victim's] property. [The victim] fought back and in self-defense shot Neal, leaving Neal paralyzed from the neck down. This November 2003 incident was the subject of subsequent family meetings attended by both [Appellant] and Hynson.

On October 18, 2004, at approximately 11:00 p.m., [Appellant] drove Hynson to [the victim's] apartment at 416 Victoria Drive in a Kia automobile that had been taken from a couple in Lancaster, Pennsylvania, to be used in the murder. Hynson got out of the Kia and knocked on [the victim]'s front door. As [the victim] opened the door, Hynson asked, "Are you Omar?" and then shot [the victim] six times. Shell casings were ejected from Hynson's pistol and left at the murder scene. [The victim] collapsed and died on top of his five-year-old son, who had been on the living room floor near the front door. After the shooting, [Appellant] gestured to Hynson, from inside the Kia, to "hurry up." This was observed by a witness looking out the window of her apartment. Hynson ran to the Kia, which was waiting for him with the front passenger's door open. After Hynson got into the Kia, he closed the door, and [Appellant] sped away from the scene.

A police officer happened to be driving into the Regency Park complex when a 911 dispatcher advised him of the shooting. The officer spotted the Kia and gave chase. During the chase, the murder weapon—a Hi-Point .380—was thrown from the car into the brush next to a railroad track. Due to the wet roadway, [Appellant] lost control and crashed the Kia into a ditch. [Appellant] and Hynson fled in different directions, and neither was apprehended by police at that time.

Other individuals in [Appellant's] Buick Riviera (another getaway vehicle) had been waiting, as planned, near the Regency Park complex and observed the police chasing the Kia to the location in Coatesville where [Appellant] had earlier switched from driving his own car, the Buick, and begun driving the Kia. They picked up Hynson, and Hynson told them that he had "just shot a man," that he and [Appellant] were being chased, and that [Appellant] was still running from the police. Hynson and others then drove around Coatesville looking for [Appellant] and trying to find the gun that had been "tossed" during the getaway chase. Neither [Appellant] nor the gun was located, so they visited Ramek Neal to advise him of what happened and then returned to Lancaster. [Appellant] also made his way back to Lancaster. When he arrived, he was wet, he had a gash on his head, and his clothing was ripped. [Appellant] told his friends that, while being chased by the police, he had crashed the Kia and then had to run on foot.

[Appellant's] fingerprints were found on the interior driver's door window of the crashed Kia. DNA testing confirmed the presence of Hynson's blood on the interior passenger's side of the Kia. Gunshot residue was also found inside the Kia. The murder weapon was found almost a year later by a woman walking her dog near the railroad tracks along [Appellant's] escape route. That weapon was traced back to a straw purchase in North Carolina made by Tolanda Williams, the mother of Hynson's child. Williams testified that during the week before the murder, she went with [Appellant] and Hynson to several pawn and gun shops in [Appellant's] Buick, to be the straw purchaser of guns. The tag number of [Appellant's] Buick was written down by one of the shop owners who became suspicious of one of the transactions. During cross-examination, the gun shop owner identified [Appellant] as the driver of the Buick. The Hi-Point .380 murder weapon was also used by Hynson to shoot Edward Cameron in Lancaster at approximately 4:30 p.m. on October 18, 2004—less than seven hours before [the victim] was murdered in Coatesville. Shell casings from the two shootings were all matched to the Hi-Point .380 found along the escape route. Cell phone records indicated that [Appellant's] cell phone was active and used in the Coatesville area during and after the time of the murder.

Commonwealth v. Isaac , 2016 WL 5210891, at *1–2 (Pa. Super. July 19, 2016). At the conclusion of a six-day trial, the jury found Appellant guilty of first-degree murder and conspiracy. On July 8, 2009, the trial court sentenced Appellant to life in prison. This Court affirmed the judgment of sentence on direct appeal, and our Supreme Court denied allowance of appeal on August 12, 2012. Appellant filed this timely first PCRA petition on November 12, 2013.³

Presently, Appellant argues the PCRA court erred because counsel had no reasonable strategic basis for failing to raise the inadequate waiver colloquy on direct appeal, and because Appellant would have received a new trial had counsel challenged the defective waiver colloquy. Appellant's Brief at 4.

In PCRA appeals, our scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party. Because most PCRA appeals involve questions of fact and law, we employ a mixed standard of review. We defer to the PCRA court's factual findings and credibility determinations supported by the record. In contrast, we review the PCRA court's legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez , 111 A.3d 775, 779 (Pa. Super. 2015) (en banc ). Counsel is presumed effective, and a PCRA petitioner asserting otherwise bears the burden of proof. Id. at 779-80. Specifically, the petitioner must prove by a preponderance of the evidence that (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis in support of the action or inaction; and (3) the petitioner suffered prejudice, i.e. , the outcome of the proceeding in question would have been different but for counsel's error. Id. at 780. A petitioner's failure to prove any one of these three prongs is fatal to the claim. Id.

The right to counsel is guaranteed by the Sixth Amendment to the United States Constitution and Article V, Section 9 of the Pennsylvania Constitution. Commonwealth v. Clyburn , 42 A.3d 296, 298 (Pa. Super. 2012).⁴ When a defendant wishes to waive the right to counsel, the trial court is "ultimately responsible for ensuring that the defendant is questioned about the six areas [specified in Rule 121 ] and for determining whether the defendant is indeed making an informed and independent decision to waive counsel." Commonwealth v. Davido , 582 Pa. 52, 868 A.2d 431, 437 (2005) (quoting Commonwealth v. McDonough , 571 Pa. 232, 812 A.2d 504, 508 (2002) ), cert. denied , 546 U.S. 1020, 126 S.Ct. 660, 163 L.Ed.2d 534 (2005). Specifically, "it is incumbent on the court to fully advise the accused [of the nature and elements of the crime] before accepting waiver of counsel." Clyburn , 42 A.3d at 299 (quoting Commonwealth ex rel. Clinger v. Russell , 206 Pa.Super. 436, 213 A.2d 100, 102 (1965) ) (brackets added in Clyburn ). A "penetrating and comprehensive colloquy" is mandatory, regardless of the defendant's experience with the system. Id. at 300 (quoting Commonwealth v. Owens , 750 A.2d 872, 876 (Pa. Super. 2000) ). "Failure to conduct a thorough, on-the-record colloquy before allowing a defendant to proceed to trial pro se constitutes reversible error" on direct appeal. Id.

A defendant also has a constitutional right to self-representation. Clyburn , 42 A.3d at 298 ; United States v. Isaac , 655 F.3d 148, 153 (3d Cir. 2011), cert. denied , 566 U.S. 1029, 132 S.Ct. 2700, 183 L.Ed.2d 59 (2012). This right prevents the Commonwealth from bringing a defendant into court and forcing a lawyer on him. Commonwealth v. Starr , 541 Pa. 564, 664 A.2d 1326, 1334-35 (1995). In other words, the right to counsel is intended as "an aid to a wiling defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally." Commonwealth v. Tejada , 188 A.3d 1288, 1295 (Pa. Super. 2018) (quoting Faretta v. California , 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ).

We now turn to ...