Commonwealth v. Maness

1

COMMONWEALTH OF PENNSYLVANIA v. MARTY WILLIAM MANESS Appellant

No. 439 MDA 2022

No. J-S28010-22

Superior Court of Pennsylvania

November 30, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered February 24, 2022 In the Court of Common Pleas of Fulton County Criminal Division at No(s) CP-29-CR-0000143-2016

Joseph D. Seletyn, Esq.

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM

OLSON J.:

Appellant Marty William Maness, appeals from the February 24, 2022 order denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Counsel for Appellant, Mark F. Bayley, Esquire ("Attorney Bayley") filed a brief and a motion to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967) and its progeny.^[1] We affirm the order denying Appellant's petition and grant Attorney Bayley's motion to withdraw.

The PCRA court set forth the procedural history as follows:

This case arises from an incident [that occurred] on March 30, 2016,where an individual suffered a fatal overdose at [Appellant's residence]. As a result, [Appellant] was charged with [manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance, 35 P.S. § 780-113(a)(20),] and drug delivery resulting in death[, 18 Pa.C.S.A. § 2506(a),] on June 23, 2016.

On December 20, 2016, [Appellant] filed an omnibus pre[-]trial motion. He was represented by [] John J. Mooney[,] III[, Esquire ("Attorney Mooney")] at the time. A hearing was held on the matter on February 14, 2017. [On] April 4, 2017, [the trial court] denied [Appellant's] omnibus [] motion.

After a two-day jury trial on October 5[, 2017, and October] 6, 017,[Appellant] was convicted of [the aforementioned] charges. [Appellant] was sentenced on October 31, 2017, to a term of 108[ to ]240 months' incarceration in a state correctional institution for his conviction of drug delivery resulting in death[. H]is remaining conviction merged for sentencing purposes.

On November 6, 2017, [Appellant] filed a motion for post-sentence relief. Subsequently, [Appellant] applied for, and was granted, the assistance of the public defender's office. Thus, Attorney Mooney ceased his representation of [Appellant], and [] Philip Harper[, Esquire ("Attorney Harper")] took over as counsel for [Appellant].

[On] April 3, 2018, [the trial court] denied [Appellant's] post-sentence motion. [Appellant] timely appealed on May 2, 2018, On December 21, 2018, [this Court] affirmed [Appellant's] judgment of sentence. [See Commonwealth v. Maness, 2018 WL 6715297 (Pa. Super. filed Dec. 21, 2018) (unpublished memorandum). Appellant did not seek discretionary review by our Supreme Court. Therefore, Appellant's judgment of sentence became final on Tuesday, January 22, 2019.^[2]

On August 26, 2019, [Appellant] filed a pro se [PCRA] petition, in which he indicated that he wished to proceed without an attorney. On August 28, 2019, [the PCRA court] scheduled a hearing in order to colloquy [Appellant] on the record about his right to counsel. After [conducting a] hearing on October 15, 2019, [the PCRA court] determined [Appellant] wished to have an attorney represent him and directed the court administrator to appoint counsel[. The PCRA court] also directed future counsel to review the record and determine whether [amendment of Appellant's pro se] petition was necessary. On October 18, 2019, [] Bret Beynon[, Esquire ("Attorney Beynon") was appointed to represent Appellant].

[Following the appointment of Attorney Beynon, no additional filings were submitted on Appellant's behalf. Accordingly, on March 3, 2020, the PCRA court] entered an order [] directing Attorney Beynon to file an amended petition or otherwise notify the [PCRA] court that none was necessary. On March 17, 2020, [Appellant] filed a counseled [amended PCRA] petition[.] On April 9, 2020, [the PCRA court] received the Commonwealth's answer to [Appellant's amended PCRA petition. The PCRA court] then scheduled an evidentiary hearing on [Appellant's] petition for June 16, 2020.

On June 16, 2020, after an on-the-record discussion, [the PCRA court] vacated Attorney Beynon's appointment as counsel for [Appellant] due to a conflict of interest and directed the court administrator to appoint new counsel as quickly as possible[. The PCRA court] also directed future counsel [to] review the [amended PCRA] petition submitted by Attorney Beynon and determine if any motions must be filed [to prepare the matter] for a[n evidentiary] hearing.

On June 23, 2020, [Attorney Mark F. Bayley ("Attorney Bayley")] was appointed to represent [Appellant]. Attorney Bayley subsequently requested several transcripts and filed a motion for leave to file [an] amended petition once all transcripts were received[. The PCRA court subsequently] granted the motion. On January 8, 2021, Attorney Bayley filed a motion [] to withdraw [as Appellant's counsel], along with a [Turner/Finley] no[-]merit letter.

On January 28, 2021, [the PCRA court] entered an order scheduling an evidentiary hearing on [Appellant's] petition for March 4, 2021. [The PCRA court] clarified that the hearing was [] limited to the issues concerning [District Attorney Travis Kendall's] potential conflict of interest [in prosecuting Appellant's underlying criminal matter] and the failure to call certain witnesses [at trial. The PCRA court further] indicated that the issue regarding [Attorney Mooney's] failure to pursue certain suppression issues would be decided without [an] evidentiary hearing. On February 16, 2021, [Appellant] filed a motion for [a] continuance and [a] motion for [the evidentiary] hearing to be conducted via [an Internet-based video conferencing application. The PCRA court] granted the motion[s] and continued the hearing until May 6, 2021, [with the hearing] to take place [via a video conferencing application]. On April 29, 2021, upon the [PCRA] court's own motion, [the evidentiary hearing was] rescheduled [for] July 15, 2021[.]

On July 15, 2021, [the PCRA court] held an evidentiary hearing via [a video conferencing application], where [Appellant] presented testimony from Attorney [] Harper and Attorney [] Mooney[. Appellant] also testified at the hearing. However, two additional defense witnesses [(Randy Cubbage and Joshua Sarver)] were unable to access the virtual hearing. Therefore, [the PCRA court] scheduled a second evidentiary hearing for September 20, 2021, to be held in[-]person.

The second evidentiary hearing was held on September 20, 2021, at which time [Appellant] presented testimony from [] Cubbage.

[Appellant's] remaining witness, [] Sarver, [] failed to appear. Therefore, yet another [evidentiary] hearing was scheduled.

On February 2, 2022, despite personal service by [the] deputy sheriff, [of a subpoena to appear and offer testimony at the evidentiary hearing,] Sarver again failed to appear [at the] evidentiary hearing. Pursuant to 42 Pa.C.S.[A.] § 5904(d),

[Appellant] requested that a bench warrant be issued for [] Sarver. For the reasons set forth in [the] order [filed on] February 17, 2022, [the PCRA court] declined to issue a bench warrant. [Thereafter, the PCRA court closed the evidentiary hearing record, and no further testimony or evidence was presented.]

PCRA Court Opinion, 2/24/22, 1-4 (extraneous capitalization omitted). On February 24, 2022, the PCRA court denied Appellant's petition.^[3] On March 11, 2022, Appellant filed a notice of appeal.^[4] On June 8, 2022, Attorney Bayley filed an Anders brief, as discussed supra, and a motion to withdraw as court-appointed counsel with this Court.

Appellant raises the following issues for our review:

1. [Did] the [PCRA] court err[] in denying [] Appellant's [PCRA] petition [] where [Attorney Harper and Attorney Mooney] provided ineffective assistance of counsel by failing to formally object to District Attorney [] Kendall prosecuting the case[?]

2. [Did] the [PCRA] court err[] in denying [] Appellant's [PCRA] petition [] where [Attorney] Mooney[] provided ineffective assistance of counsel by failing to call [] Sarver [as a witness] at trial[?]

3. [Did] the [PCRA] court err[] in denying [] Appellant's [PCRA] petition [] where [Attorney] Mooney[] provided ineffective assistance of counsel by failing to call [] Cubbage [as a witness] at trial[?]

4. [Did] the [PCRA] court err[] in denying [] Appellant's [PCRA] petition [] where [Attorney] Mooney[] provided ineffective assistance of counsel by failing to call [] Karen Amos [as a witness] at trial[?]

5. [Did] the [PCRA] court err[] in denying [] Appellant's [PCRA] petition [] where [Attorney] Harper[] provided ineffective assistance of counsel by failing to argue the facts and case law in his brief submitted to the trial court on March 15, 2018, and during his [direct] appeal to [this Court?]

Appellant's Brief at 7-8 (extraneous capitalization omitted).

Preliminarily, we must address Attorney Bayley's motion to withdraw as counsel before addressing the merits of the claims raised on appeal. As discussed supra, because this appeal is from the denial of collateral relief under the PCRA, a Turner/Finley no-merit letter or brief is the appropriate filing. Although we accepted Attorney Bayley's Anders brief in lieu of a Turner/Finley brief, counsel is still required to adhere to all of the Turner/Finley requirements, stated as follows:

Counsel petitioning to withdraw from PCRA representation must proceed under Turner, supra[,] and Finley, supra[,] and must review the case zealously. Turner/Finley counsel must then submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing

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