Commonwealth v. Pitt

313 A.3d 287

COMMONWEALTH of Pennsylvania

v.William PITT, Appellant

No. 466 EDA 2023

Superior Court of Pennsylvania.

Submitted February 12, 2024

Filed March 27, 2024

Appeal from the PCRA Order Entered January 26, 2023, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0014105-2014, Glenn B. Bronson, J.

William Pitt, Bellefonte, appellant, pro se.

Zachary A. Bailey, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Lawrence J. Goode, Supervisor, Appeals Unit, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, J, STABILE, J., and LANE, J.

OPINION BY BOWES, J.:

William Pitt appeals from the order denying his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.

This Court has previously recounted the lengthy procedural background of this matter as follows:

On April 11, 2016, [Appellant] entered an open guilty plea to third-degree murder, aggravated assault, and possession of an instrument of a crime [relating to the stabbing death of Tyhief Thomas]. The court imposed an aggregate sentence of 20 to 40 years’ incarceration. The court also imposed restitution in the amount of $10,000 to the victim’s family, for funeral expenses. [Appellant] filed a post-sentence motion seeking reconsideration of his sentence, which was denied. [Appellant] appealed, and we affirmed his judgment of sentence on March 13, 2018. [Appellant] did not seek allowance of appeal.

Less than one year after we affirmed, on September 25, 2018, [Appellant] filed the instant pro se PCRA petition, his first. He asserted claims that his plea counsel was ineffective for causing him to enter into an involuntary plea, the sentencing statute for third-degree murder was unconstitutional, and his sentence was illegal. Counsel was appointed and filed a … no-merit letter and a motion to withdraw as counsel [pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988) (en banc)]. The court thereafter issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition on August 23, 2019.

On September 20, 2019, [Appellant] filed a pro se response to the Rule 907 notice, styled as "Amended Post Conviction Relief Act Petition in Response to this Court’s 907 Notice to Dismiss" (hereinafter, "907 Response"), in which he claimed the following: 1) his guilty plea was unknowing and unintelligent because he was not informed at the guilty plea hearing that his sentence would include mandatory restitution; 2) his trial, direct appeal, and PCRA counsel were all ineffective for failing to raise this claim; 3) his trial, direct appeal, and PCRA counsel were all ineffective for failing to raise the claim that 18 Pa.C.S. § 2502(c) (regarding third-degree murder) was unconstitutionally vague; and 4) plea counsel was ineffective for failing to investigate and call witness Melissa Hurling, and PCRA counsel was ineffective for failing to raise this claim. The court ordered PCRA counsel to review [Appellant]’s 907 Response.

[Appellant] later wrote to the PCRA court, on October 10, 2019, requesting a new attorney. [Appellant] explained that since his 907 Response raised several claims of PCRA counsel’s ineffectiveness, PCRA counsel could no longer represent him because the claims created a conflict of interest.

After reviewing [Appellant]’s 907 Response, … counsel filed an amended PCRA petition ("Counseled Amended PCRA Petition"). The amended petition asserted a single claim: that plea counsel was ineffective for failing to inform [Appellant] that his sentence included mandatory restitution in the amount of$10,000. Counsel did not address the other issues raised in [Appellant]’s 907 Response.

[Appellant] filed another pro se petition on July 24, 2020, alleging the same claims set forth in his 907 Response, and adding a claim that he was innocent of third-degree murder.

The court held an evidentiary hearing on February 26, 2021, on the single claim set forth in [Appellant]’s Counseled Amended PCRA Petition, namely that plea counsel was ineffective for failing to notify [Appellant] that his sentence included restitution. During the hearing, the Commonwealth volunteered that it only had documentation in the amount of $8,192 for the restitution for funeral expenses, and not in excess of $10,000 as the victim’s family had stated at sentencing. The court allowed [Appellant]’s counsel to amend the petition to include a claim that the restitution amount was not supported by the evidence. [Appellant also testified on his own behalf that had he known he would be required to pay $10,000 in restitution, he would not have pled guilty.]

At the conclusion of the hearing, the court granted [Appellant]’s claim [in part] and vacated the restitution award for lack of proof. However, it rejected [Appellant]’s other PCRA claims, including his claim that plea counsel was ineffective. [Appellant] thereafter filed [a] timely appeal. During the pendency of th[at] appeal, [Appellant] filed a motion to proceed pro se[, which we ultimately granted. Appellant subsequently filed a pro se supplemental Pa.R.A.P. 1925(b) statement of errors complained of on appeal].

Commonwealth v. Pitt, 285 A.3d 949, 2022 WL 4392746 at *1-2 (Pa. Super. 2022) (non-precedential decision) (cleaned up).

On appeal to this Court, one of Appellant’s issues was whether the PCRA court erred by refusing to appoint him new counsel after he alleged ineffectiveness against PCRA counsel in his 907 Response. Without deciding the merits of any of Appellant’s other contentions, this Court vacated the order denying the petition and remanded the matter for "appointment of substitute PCRA counsel to ensure that [Appellant]’s interests are adequately represented and his right to counsel fully realized." Id. at *3.

On remand, the PCRA court appointed new counsel, who reviewed all of Appellant’s PCRA-related claims. The attorney issued a letter to both the court and Appellant, concluding that none of the issues warranted relief and that none of Appellant’s prior attorneys was ineffective. Counsel did not move to withdraw. The court agreed with the rationale in the letter and entered an order on January 26, 2023, again denying the petition.

Appellant filed the instant timely appeal through his same post-remand counsel.¹ He also complied with the court’s order directing that he file a concise statement of errors pursuant to Pa.R.A.P. 1925(b). The PCRA court entered a new Rule 1925(a) opinion, which in relevant part directed us to its prior opinions from June 4, 2021, and December 30, 2021. Appellant then submitted an application to this Court requesting leave to proceed pro se. After we remanded for the PCRA court to conduct a hearing pursuant to Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998), and following appropriate findings by the court, we permitted Appellant to proceed on appeal pro se.

This matter is now ripe for review. Appellant raises the following issues:

I. Was direct appeal counsel ineffective for failing to raise the claim that … Appellant’s plea was unknowing, involuntary[,] and unintelligent where he was never informed that he was subject to mandatory restitution as part of his plea?

a. Was PCRA counsel ineffective for failing to raise this claim in the PCRA court?

II. The PCRA court committed an error of law when it denied Appellant’s claim that trial and direct appeal counsel w[ere] ineffective for failing to raise the claim that 18 Pa.C.S. § 2502(c) is unconstitutionally vague and PCRA counsel was ineffective for failing to raise this claim.

Appellant’s brief at 7 (cleaned up).

[1–3] We begin with the legal tenets pertinent to our review. "On appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. We apply a de novo standard of review to the PCRA court’s legal conclusions." Commonwealth v. Wharton, — Pa.—, 263 A.3d 561, 567 (2021) (citations omitted). Further, "[i]t is an appellant’s burden to persuade us that the PCRA court erred and that relief is due." Commonwealth v. Thomas, 270 A.3d 1221, 1226 (Pa. Super. 2022).

[4–7] Both of Appellant’s issues raise layered claims of ineffective assistance of counsel. In this vein, we observe that counsel is presumed to be effective, and the petitioner bears the burden of proving otherwise. See Commonwealth v. Johnson, 236 A.3d 63, 68 (Pa. Super. 2020) (en banc). To do so, he must establish 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, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different.

Id. (citations omitted). Failure to prove any of the three elements will result in dismissal of the ineffectiveness claim. Id. (citation omitted). Additionally, "[w]e are not required to analyze the elements of an ineffectiveness claim in any particular order." Commonwealth v. Montalvo, 651 Pa. 359, 205 A.3d 274, 286 (2019).

[8] This Court has stated that a claim "has arguable merit where the factual averments, if accurate, could establish cause for relief." Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (cleaned up). "Whether the facts rise to the level of arguable merit is a legal determination." Id.

With regard to the prejudice prong, our Supreme Court has defined actual prejudice as

[a] reasonable probability that, but for counsel’s lapse, the result of the proceeding would have been different. In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Moreover, a verdict or conclusion only weakly supported by therecord is more likely to have been affected by errors than one

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