Commonwealth v. Reese

245 A.3d 1037 (Table)

COMMONWEALTH of Pennsylvania v. Bruce REESE, Appellant

No. 2953 EDA 2019

Superior Court of Pennsylvania.

Filed December 1, 2020

MEMORANDUM BY FORD ELLIOTT, P.J.E.:

Bruce Reese appeals the September 26, 2019 order, entered in the Court of Common Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"). ¹ After careful review, we affirm.

A previous panel of this court set forth the facts of this case on direct appeal and we need not repeat them here. See Commonwealth v. Reese , No. 52 EDA 2013, unpublished memorandum at 1-3 (Pa.Super. filed June 23, 2015) ( en banc ). The PCRA court set forth the following procedural history:

On October 5, 2012, at the conclusion of his jury trial, [appellant], represented by Jonathan Altschuler, Esq., was found guilty on four counts of robbery, one count of conspiracy and one count of possession of an instrument of a crime. ^[2] On November 20, 2012, [appellant], again represented by Mr. Altschuler, was sentenced to an aggregate period of confinement in a state correctional institution of 15 to 30 years. On December 10, 2012, [appellant], now represented by Jonathan Frisby, Esq., timely filed a direct appeal to the Superior Court of Pennsylvania, at 52 EDA 2013. On August 9, 2014, a divided three judge panel issued an order reversing [appellant]’s judgment of sentence. However, on October 3, 2014, [the] Superior Court withdrew that opinion and, on June 23, 2015, [the] Superior Court issued an en banc order affirming [appellant]’s convictions. However, [the] Superior Court, sua moto , vacated [appellant]’s sentence and remanded the matter back for resentencing, finding [appellant]’s sentence to be illegal, pursuant to Alleyne v. United States , , 133 S.Ct. 2151 (2013), and its progeny[.]

On April 25, 2016, the [trial] court, after a hearing, resentenced [appellant], now represented by David M. Simon, Esq., and re-imposed his original sentence. On May 23, 2016, [appellant] timely filed a direct appeal to the Superior Court at 1661 EDA 2016. Subsequently, on October 4, 2016, [the] Superior Court granted [appellant]’s motion to withdraw this appeal.

On September 5, 2017, [appellant] filed the subject timely pro se PCRA petition pursuant to 42 Pa.C.S.A. § 9541, et seq., seeking a new trial, alleging ineffectiveness of counsel. On September 27, 2017, Susan V. Buck, Esq., was appointed as counsel to represent [appellant] for the purposes of his PCRA petition. On July 9, 2018, Ms. Buck filed a counseled amended PCRA petition (first amended petition). On July 10, 2018, the [PCRA] court permitted Ms. Buck to withdraw her appearance, and, on July 12, 2018, appointed Peter A. Levin, Esq., to represent [appellant] for the purposes of his PCRA petition. On October 15, 2018, Mr. Levin filed a second counseled amended PCRA petition (second amended petition), averring appellate counsel, Mr. Frisby, was ineffective for failing to file a petition for allocator [sic] with the Supreme Court of Pennsylvania.

[Hearings on appellant's PCRA petition were held on June 13 and September 26, 2019.] On September 26, 2019, the [PCRA] court, after [the] hearing and a careful review of the record, issued an order dismissing [appellant]’s PCRA petition as being without merit. On October 10, 2019, [appellant] timely filed the instant direct appeal to the Superior Court of Pennsylvania.

On October 18, 2019, [the PCRA] court filed and served on [appellant] an order[,] pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, directing [appellant] to file and serve a statement of errors complained of on appeal, within 21 days of the [PCRA] court's order. On November 8, 2019, [appellant] timely filed his "Statement of Matters Complained of on Appeal ..."

PCRA court Rule 1925(a) opinion, 1/8/20 at 1-3 (footnote and extraneous capitalization omitted). Thereafter, the PCRA court filed its Rule 1925(a) opinion.

On appeal, appellant raises the following issues:

1. Whether appellate counsel was ineffective for not filing an [a]llocatur [petition] to the Pennsylvania Supreme Court?

2. Whether the PCRA court was in error in not allowing [a]ppellant to file a supplemental PCRA?

Appellant's brief at 8.

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." Commonwealth v. Sam , 952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because most PCRA appeals involve questions of fact and law, we employ a mixed standard of review. Commonwealth v. Pitts , 981 A.2d 875, 878 (Pa. 2009). We defer to the PCRA court's factual findings and credibility determinations supported by the record. Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa.Super. 2014) ( en banc ), appeal denied , 101 A.3d 785 (Pa. 2014). In contrast, where the appellant "raises questions of law, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Rykard , 55 A.3d 1177, 1183 (Pa.Super. 2012), appeal denied , 64 A.3d 631 (Pa. 2013).

Appellant claims his appellate counsel was ineffective for failing to file a petition for allocatur to our supreme court following the June 23, 2015 ruling of this court. (Appellant's brief at 8, 14-21.)

In evaluating claims of ineffective assistance of counsel, we presume that counsel is effective. To overcome this presumption, [a]ppellant must establish three factors. First, that the underlying claim has arguable merit. Second, that counsel had no reasonable basis for his action or inaction. In determining whether counsel's action was reasonable, we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis. Finally, [a]ppellant must establish that he has been prejudiced by counsel's ineffectiveness; in order to meet this burden, he must show that but for the act or omission in question, the outcome of the proceedings would have been different. A claim of ineffectiveness may be denied by a showing that the petitioner's evidence fails to meet any of these prongs.

Commonwealth v. Washington , 927 A.2d 586, 594 (Pa. 2007) (citations and quotation marks omitted).

[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the [i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014) (internal quotation marks omitted; some brackets in original), citing 42 Pa.C.S.A. § 9543(a)(2)(ii).

"A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim." Commonwealth v. Watson , 835 A.2d 786, 793 (Pa.Super. 2003). Furthermore, "a court is not required to analyze the elements of an ineffectiveness claim in any particular order of priority; instead, if a claim fails under any necessary element of the Strickland³ test, the court may proceed to that element first." Commonwealth v. Lesko , 15 A.3d 345, 374 (Pa. 2011). "If it is clear that Appellant has not demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met." Commonwealth v Albrecht , 720 A.2d 693, 701 (Pa. 1998).

Appellant claims his trial counsel was ineffective for not filing a petition for allowance of appeal to our supreme court after this court vacated appellant's sentence and remanded the matter for resentencing. "[W]hile a defendant does not have an automatic right to an appeal in the [s]upreme [c]ourt, he has a right to file a PAA, ⁴ provided that appellate counsel believes that the claims that a petitioner would raise ... would not be completely frivolous.’ " Commonwealth v. Ellison , 851 A.2d 977, 979 (Pa.Super.2004), (citations and quotation marks omitted; emphasis in original), appeal denied , 862 A.2d 1253 (Pa. 2004). However,

[b]efore a court will find ineffectiveness of counsel for failing to file a direct appeal, the defendant must prove that he requested an appeal and that counsel disregarded that request. Clearly, if a request to file a direct appeal is necessary to sustain an ineffectiveness claim based upon the failure to file a direct appeal, then such a request is also necessary where the alleged ineffectiveness is the failure to file a petition for allowance of appeal.

Commonwealth v. Bath , 907 A.2d 619, 622 (Pa.Super. 2006) (citations and quotation marks omitted), appeal denied , 918 A.2d 741 (Pa. 2007).

Attorney Frisby, appellate counsel, testified to his actions after the decision of this court en banc .

I remember sending [appellant] a letter after the en banc panel explaining their holding. I believe I included a copy of the en banc panel decision. And I believe my practice would be to have informed him of my belief as to the viability of the [s]upreme [c]ourt appeal. However, I don't have a distinct recollection of that letter. And, unfortunately, I provided my file to Mr. Simon and the computer where I drafted those letters has crashed and is now in a forever reboot mode so I can't actually access my digital copy of that letter anymore either.

I remember sending the letter. And it's a fairly form letter, but I don't remember the exact contents of it. But I believe I would have told him, [h]ere is the [s]uperior [c]ourt opinion, here is what they decided, we can go to the [s]upreme [c]ourt in this case, I believe I would have said, I don't believe it is likely to be granted.

Id. at 28 (bolding and italics added). He further testified that his letter would...