Commonwealth v. Martin

1

COMMONWEALTH OF PENNSYLVANIA v. MICHAEL A. MARTIN Appellant

No. 398 WDA 2022

No. J-S42034-22

Superior Court of Pennsylvania

June 6, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the PCRA Order Entered March 15, 2022 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003982-2013

BEFORE: BOWES, J., OLSON, J., and COLINS, J. ^[*]

MEMORANDUM

COLINS, J.

Appellant Michael A. Martin, appeals from the order of the Court of Common Pleas of Westmoreland County (trial court) that denied his petition filed under the Post Conviction Relief Act (PCRA).^[1] Counsel for Appellant in this appeal (PCRA appellate counsel) has filed an application to withdraw and a brief concluding that the appeal presents no issues of any arguable merit. After careful review, we affirm the trial court's ruling rejecting the two grounds for relief asserted in Appellant's PCRA petition, but vacate in part the trial court's denial of the PCRA petition and remand for further proceedings to address six claims of PCRA counsel ineffectiveness that Appellant has raised in this appeal. Because PCRA appellate counsel has not shown that the appeal is wholly without merit, we deny the application to withdraw.

This case arises out of the August 2013 killing of Appellant's stepfather-in-law (Victim). Appellant was charged with first-degree murder and third-degree murder for stabbing Victim to death. These charges were tried to a jury from January 5 through 12, 2015. At trial, Appellant argued that he killed Victim in self-defense when Victim pulled a gun on him. On January 12, 2015, the jury convicted Appellant of first-degree murder.

On March 26, 2015, Appellant was sentenced to life in prison without the possibility of parole. Appellant timely filed post-sentence motions, which the trial court denied. Appellant filed a timely direct appeal asserting the trial court erred in admitting Victim's autopsy photographs and that the first-degree murder verdict was against the weight of the evidence. On June 22, 2016, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Martin, 153 A.3d 1116 (Pa. Super. 2016) (unpublished memorandum). Appellant did not file a petition for allowance of appeal to the Pennsylvania Supreme Court.

On September 23, 2016, Appellant filed a timely pro se first PCRA petition. The trial court appointed PCRA counsel for Appellant. Appellant's first PCRA counsel filed a no-merit letter and the trial court on April 30, 2018 issued a notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss this PCRA petition without a hearing. Appellant responded to the Rule 907 notice and the trial court held a hearing on the PCRA petition on December 12, 2019 at which trial counsel, Appellant, and Appellant's brother testified. Appellant was not represented by counsel at this hearing.^[2]

Following that hearing, new PCRA counsel appeared for Appellant and was granted leave to file an amended PCRA petition and reopen the record. On January 15, 2021, new PCRA counsel filed an amended PCRA petition asserting, inter alia, that trial counsel was ineffective for failing to present evidence that Victim had been convicted of aggravated assault for shooting another man in 1981 and for failing to file a motion to suppress Appellant's statement to police in which he admitted stabbing Victim. The trial court held a second PCRA hearing on December 3, 2021 on this amended PCRA petition at which trial counsel, Appellant, and Appellant's brother again testified. Following this second PCRA hearing, the trial court on March 15, 2022 denied Appellant's PCRA petition. Trial Court Opinion and Order, 3/15/22.

Appellant, represented by new counsel, timely appealed the order denying his PCRA petition. On June 6, 2022, PCRA appellate counsel filed and served on Appellant an application to withdraw and an Anders^[3] brief in which he concludes that there is no ground for reversal of the trial court's denial of Appellant's PCRA petition. Appellant filed a brief in response to PCRA appellate counsel's Anders brief. The Commonwealth has filed a brief in support of the trial court's order.

Before this Court can consider the merits of these appeals, we must first determine whether counsel has satisfied all of the requirements that court-appointed counsel must meet before leave to withdraw may be granted in a PCRA appeal. Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016); Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa. Super. 2014); Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012). To withdraw from representing a PCRA petitioner, counsel must file a no-merit letter, send the petitioner copies of the application to withdraw and no-merit letter, and advise petitioner of his right to proceed pro se or with a privately retained attorney. Walters, 135 A.3d at 591; Doty, 48 A.3d at 454; Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). The no-merit letter must set forth: 1) the nature and extent of counsel's review of the case; 2) each issue that the petitioner wishes to raise on appeal; and 3) counsel's explanation of why each of those issues is meritless. Commonwealth v. Turner, 544 A.2d 927, 928-29 (Pa. 1988); Freeland, 106 A.3d at 774; Widgins, 29 A.3d at 817-18. If counsel has satisfied the above requirements, this Court must then conduct its own review of the record and render an independent judgment as to whether the appeal is without merit. Walters, 135 A.3d at 591; Doty, 48 A.3d at 454.

Here, PCRA appellate counsel filed and sent Appellant his application to withdraw as counsel and sent Appellant a letter advising Appellant of his right either to retain new counsel or proceed pro se. Although PCRA appellate counsel filed and sent Appellant an Anders brief, which is required when counsel seeks to withdraw in a direct appeal, rather than a no-merit letter, an Anders brief can satisfy counsel's obligations in an appeal from denial of a PCRA petition provided that the brief contains all the information that must be included in a no-merit letter. Widgins, 29 A.3d at 817 & n.2, 819. We conclude that PCRA appellate counsel's brief here satisfies the requirements for a sufficient no-merit letter. PCRA appellate counsel's brief discusses the record in detail, sets forth the grounds for PCRA relief asserted by Appellant in the trial court and an additional claim of PCRA counsel ineffectiveness that Appellant seeks to raise in this appeal, which he represents to be the only other claim that he is aware that Appellant wishes to raise in this appeal, and explains why he concludes that all of those issues are without merit. We therefore conclude that PCRA appellate counsel has satisfied the requirements for seeking to withdraw and conduct our own review and independently determine whether Appellant has asserted any issues in this appeal that would support vacating the denial of his PCRA petition.^[4] PCRA appellate counsel sets forth the following three issues as the issues that Appellant seeks to raise in this appeal:

1. Did the PCRA Court err in denying [Appellant]'s PCRA Petition alleging ineffective assistance of counsel alleging that trial counsel failed to present evidence of the victim's prior conviction?

2. Did the PCRA Court err in denying [Appellant]'s PCRA Petition alleging ineffective assistance of counsel for failure to file a suppression motion?

3. Was PCRA counsel ineffective for failing to raise an ineffective assistance of counsel issue regarding trial counsel's failure to elicit potentially exculpatory testimony from [Appellant]'s wife?

Anders Brief at 5. Appellant in his pro se response brief argues that PCRA counsel was also ineffective for failing to assert the following additional claims: 1) that trial counsel was ineffective for failing to obtain and introduce Appellant's mental health records; 2) that trial counsel was ineffective for failing to introduce evidence that Appellant was high on cocaine at the time of the killing; 3) that trial counsel was ineffective for failing to convey a plea offer to Appellant; 4) that trial counsel was ineffective for failing to object to the introduction of Victim's autopsy photographs; 5) that trial counsel was ineffective for failing to investigate and call a witness who heard an argument at the time of the killing; and that 6) that direct appeal counsel was ineffective for failing to argue that the trial court's denial of a heat of passion voluntary manslaughter instruction was error. Appellant's Pro Se Brief at 24-30. We first address the two claims of trial counsel ineffectiveness that were raised by PCRA counsel and decided by the trial court, followed by the claim of ineffectiveness of PCRA counsel addressed by PCRA appellate counsel, and then the additional pro se claims raised by Appellant.

Our review of an order denying a PCRA petition is limited to determining whether the record supports the PCRA court's findings and whether its decision is free of legal error. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015); Commonwealth v. Johnson, 236 A.3d 63, 68 (Pa. Super. 2020) (en banc); Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018). We must view the findings of the PCRA court and the evidence of record in a light most favorable to the prevailing party. Mason, 130 A.3d at 617; Johnson, 236 A.3d at 68; Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc). The PCRA court's credibility determinations, if supported by the record, are binding on this Court. Mason, 130 A.3d at 617; Johnson, 236 A.3d at 68; Widgins, 29 A.3d at 820.

All of Appellant's claims here are claims of ineffective assistance of counsel. To be entitled to relief under the PCRA on a claim of ineffective assistance...