COMMONWEALTH OF PENNSYLVANIA Appellee
v.
MICHAEL AARON REED Appellant
J-S26011-15
No. 1044 MDA 2014
SUPERIOR COURT OF PENNSYLVANIA
JUNE 23, 2015
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 21, 2014
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0002248-2010
BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.:
Michael Aaron Reed appeals, pro se, from the order entered May 21, 2014, in the Franklin County Court of Common Pleas, dismissing his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Reed seeks relief from the judgment of sentence of an aggregate nine to 18 years' imprisonment imposed following his conviction of two counts of robbery and one count of criminal conspiracy.1 On appeal, he argues both trial and PCRA counsel provided ineffective assistance. For the reasons that follow, we affirm.
The facts underlying Reed's convictions are as follows. On July 27, 2010, at approximately 9:13 p.m., two armed men entered the Blue Ridge
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Food Mart in Blue Ridge Summit, Pennsylvania, and demanded the clerk give them all of the money in the cash register.2 Both men were wearing masks, one had a gun and the other was armed with a knife. After robbing the store of an estimated $500 to $550 in cash, they fled in a car parked behind the store.3 See N.T., 6/23/2011, at 45-49, 71. The robbery was captured on the store's video surveillance camera.
Two witnesses, who were outside of the food mart at the time of the robbery, saw the culprits flee in a two-door, two-tone maroon and grey car, which they believed had the same body type as a Dodge Shadow or Spirit. One witness, Joseph Trail, noticed the car had a Maryland license plate, although he could not identify the plate number. See N.T., 6/23/2011, at 85, 109.
At approximately 9:20 p.m., Jeffrey Croteau was traveling on Pen Mar Road near Camp Louise, just over the Maryland border, when he observed a car on the side of the road with its front end in a ditch. Id. at 136-137. Croteau stopped to see if the driver needed assistance and, as he
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approached, he noticed the driver and passenger putting on t-shirts as they exited the car. He explained the two men "seemed like they wanted to get the car back on the road and get moving as quickly as possible." Id. at 137. The passenger, later identified as Reed, asked Croteau if he could use his cell phone to call his mother. Croteau attempted to place the call for Reed, but the call would not go through. Croteau then left as another vehicle stopped to help. See id. at 137-138.
Shayla Murray and her boyfriend were driving by the accident scene around the same time when they stopped to help. Murray allowed Reed to use her cell phone, and he placed two calls to his mother at 9:27 p.m. Murray and her boyfriend were still at the scene when the police arrived. See N.T., 6/24/2011, at 4-6, 11.
Officer Bryan Chappell, Jr., of the Waynesboro Police Department, responded to a radio call from the Washington Township Police to assist in investigating an armed robbery. Officer Chappell proceeded to the food mart and began driving around the nearby area to search for the suspects. At approximately 9:37 p.m., he came upon an older model Dodge or Plymouth that had slid off the embankment on Pen Mar Road, approximately two miles from the robbery scene. The car was two-tone, maroon on top and silver on the bottom, with a Maryland license plate, and matched the
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description of the vehicle used in the robbery.4 Officer Chappell secured the four individuals at the scene - Reed, his co-defendant Russell Runk, as well as, Murray, and her boyfriend Cameron Himes - until backup arrived. See N.T., 6/23/2011, at 155-160.
Corporal Lloyd Perkins, of the Washington Township Police Department, also responded to the armed robbery call, arriving at the food mart at approximately 9:20 p.m. Corporal Perkins was interviewing witnesses at the scene when he received a radio call from Officer Chappell, stating the officer believed he had located the suspect vehicle. Corporal Perkins proceeded immediately to the crash scene in Maryland, arriving at approximately 9:39 p.m. See id. at 176-180. Corporal Perkins stated he was "surprised because [the vehicle that had skidded off the road] was the exact description [he] got from the witnesses at the [robbery] scene of the vehicle." Id. at 180-181 (emphasis supplied).
The responding officers conducted a pat down search of Reed and Runk. Detective Timothy Atwell, of the Washington County Maryland Sheriff's Office, who was assisting at the crash scene, asked Runk if he could search his clothing. Runk agreed, and Detective Atwell recovered $487.00, which was kept "in a loose unorganized haphazard fashion" in his back
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pocket.5 N.T., 6/24/2011, at 19. Thereafter, Runk and Reed were arrested. During a search incident to the arrest, the police recovered latex gloves from Reed.
Detective Atwell secured the vehicle involved in the crash and later obtained a search warrant for the vehicle. From inside the vehicle, the police recovered, inter alia, a pair of black camouflage pants, a black sweatshirt, a brown t-shirt, two pairs of sports gloves, a small pellet clip to an air gun, and a registration card indicating the vehicle was registered to Reed.6 See id. at 32-34. One pair of the gloves recovered matched the gloves on one of the suspects as seen in the surveillance video. No weapons were ever recovered.
Reed and his co-defendant Runk were tried before a jury in June of 2011. On June 24, 2011, the jury found both co-defendants guilty of two counts of robbery and one count of conspiracy. On August 23, 2011, Reed was sentenced to 60 to 120 months' imprisonment for one count of robbery, and a consecutive 48 to 96 months' incarceration for the conspiracy conviction. The court imposed a concurrent sentence of 18 to 36 months'
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imprisonment for the second robbery conviction. Reed did not file a direct appeal.7
On September 10, 2012, Reed filed a timely pro se PCRA petition, in which he raised, inter alia, a challenge to the sufficiency and weight of the evidence, and trial counsel's ineffectiveness for failing to: (1) object to evidence and impeach witnesses at trial; (2) conduct a more thorough pretrial investigation, including an investigation of a similar robbery that occurred two weeks after the one in question; and (3) file a direct appeal.8 Brian O. Williams, Esq. was appointed as counsel to assist Reed in litigating his PCRA petition. After being granted two extensions of time to file an amended petition, Williams filed a petition to withdraw as counsel and accompanying Turner/Finley9 "no merit" letter on August 2, 2013. However, on August 20, 2013, the PCRA court entered an order directing Williams to address Reed's claim that trial counsel failed to file a requested
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direct appeal. Thereafter, on September 9, 2013, Williams filed an amended "no merit" letter, contending, once again, that Reed's PCRA claims were meritless, and concluding, specifically, that Reed never asked trial counsel to file a direct appeal. See Amended No Merit Letter, 9/9/2013, at unnumbered p. 4.
On October 15, 2013, the PCRA court entered an opinion and order granting counsel's petition to withdraw, and dismissing Reed's PCRA petition without a hearing. However, the court entered an amended order eight days later, to comply with the requirements of Pa.R.Crim.P. 907, and provide Reed with the opportunity to respond to the court's proposed dismissal of his petition. Reed originally filed a pro se response to the court's first order on October 30, 2013, in which he reiterated his prior claims of trial counsel's ineffectiveness, as well as asserted PCRA counsel's ineffectiveness for failing to raise additional claims. Specifically, Reed claimed he asked PCRA counsel to challenge trial counsel's ineffectiveness for failing to file a suppression motion, contesting the legality of the police's arrest and subsequent search of his person. After the PCRA court entered its amended order, Reed filed a second pro se response, in which he incorporated by reference his prior filing. Thereafter, on December 20, 2013, the trial court entered an order, acknowledging that prior PCRA counsel's "no merit" letter "improperly addressed the issue of trial counsel's failure to file a direct appeal." Order, 12/20/2013. Accordingly, the court appointed Kristin Nicklas, Esq., to represent Reed at a February 13, 2014, hearing on the issue. See id.
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The hearing was continued until April 28, 2014, and, following the hearing, on May 22, 2014, the PCRA court entered an order and opinion dismissing Reed's PCRA petition.10 Reed filed a pro se motion for reconsideration, which the PCRA court declined to consider since Reed was, at that time, represented by counsel. On June 13, 2014, PCRA counsel filed a motion to amend the PCRA petition and requested a hearing, stating that she had obtained new evidence to support Reed's claim that he asked counsel to file a direct appeal. See Motion to Amend PCRA and Schedule Hearing, 6/12/2014. Nonetheless, the PCRA court denied counsel's motion, and this timely appeal followed.
On June 30, 2014, the PCRA court directed Reed to file a concise statement of...
