Commonwealth v. Stokes

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37

Appeal from the PCRA Order Entered January 24, 2019 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008090-2010

JOSEPH D. SELETYN, ESQ.

BEFORE: LAZARUS, J., KUNSELMAN, J. and COLINS, J. ^[*]

MEMORANDUM

COLINS, J.

Appellant, Joshua Stokes, appeals from the order denying his first petition filed pursuant to the Post Conviction Relief Act ("PCRA").^[1] We affirm in part, vacate in part, and remand for proceedings consistent with this memorandum.

This Court previously summarized the relevant facts and procedural history of this case. See Commonwealth v. Stokes, 159 A.3d 1015 (Pa. Super. 2016) (unpublished memorandum at 1-3). Briefly, on May 3, 2010, Appellant and another individual shot at Philip Riddick as Riddick drove away in a vehicle. Approximately one week later, Riddick's girlfriend, Marquita Taylor, reported to police that Appellant had approached her outside her home and told her that she "'better not go to court,' or 'something will happen.'"

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Id. (unpublished memorandum at 2), quoting N.T., 7/12/12, at 49-50. A jury convicted Appellant of criminal conspiracy, aggravated assault, persons not to possess firearms, carrying firearms without a license, possessing instruments of crime, and intimidation of witnesses or victims. The trial court sentenced Appellant to an aggregate term of incarceration of 35 to 70 years. No post-sentence motions were filed.

Appellant timely filed an appeal, which this Court dismissed for failure to file a docketing statement. Thereafter, Appellant filed a counseled petition pursuant to the PCRA, seeking reinstatement of his right to file a direct appeal nunc pro tunc. Following a hearing, the PCRA court granted the petition and reinstated Appellant's direct appeal rights nunc pro tunc. Appellant filed a notice of appeal nunc pro tunc and this Court affirmed Appellant's judgment of sentence.^[2] On May 23, 2017, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Stokes, 169 A.3d 540 (Pa. 2017).

On February 6, 2018, Appellant timely filed this pro se petition pursuant to the PCRA, raising claims of ineffective assistance of trial and appellate counsel. The PCRA court appointed counsel, who filed an amended PCRA petition on June 19, 2018. Among other things, Appellant argued that trial counsel was ineffective for failing to object to the Commonwealth's closing

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argument and failing to file a requested post-sentence motion. As a result, Appellant sought reinstatement of his post-sentence motion rights nunc pro tunc. On November 28, 2018, the Commonwealth filed a motion to dismiss. On January 24, 2019, the PCRA court dismissed Appellant's PCRA petition without a hearing.^[3]

This timely filed notice of appeal followed.^[4] Appellant raises the following issues on appeal:

1. Did the PCRA Court err by dismissing [Appellant's] timely Amended PCRA Petition without a hearing on the issue of whether trial counsel was ineffective for failing to object and move for a mistrial after the prosecutor made improper, prejudicial remarks in her closing argument

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2. Did the PCRA court err by dismissing [Appellant's] timely Amended PCRA Petition where a material issue of fact existed regarding whether [Appellant] instructed his prior counsel to file a post sentence motion for reconsideration and said motion was not filed, thus waiving [Appellant's] sentencing claim

Appellant's Brief at 2 (suggested answers omitted).

We review the denial of a PCRA petition to determine 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. Velazquez, 216 A.3d 1146, 1149 (Pa. Super. 2019); Commonwealth v. Johnson, 179 A.3d 1153, 1156 (Pa. Super. 2018). To be entitled to relief under the PCRA on a claim of ineffective assistance of counsel, the defendant must prove: (1) that the underlying legal claim is of arguable merit; (2) that counsel's action or inaction had no reasonable basis designed to effectuate his client's interests; and (3) that he suffered prejudice as a result of counsel's action or inaction. Mason, 130 A.3d at 618; Velazquez, 216 A.3d at 1149; Johnson, 179 A.3d at 1158. The defendant must satisfy all three prongs of this test to obtain relief under the PCRA. Mason, 130 A.3d at 618; Velazquez, 216 A.3d at 1149; Johnson, 179 A.3d at 1158.

A convicted defendant does not have an absolute right to an evidentiary hearing on his PCRA petition. Commonwealth v. Hill, 202 A.3d 792, 797 (Pa. Super. 2019); Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).

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It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007) (citations omitted). Dismissal of a PCRA petition without a hearing is proper where the PCRA petitioner's factual assertions are insufficient to support a claim for relief. Pa.R.Crim.P. 907(1); Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017); see also Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa. 2014).

Appellant first argues that trial counsel rendered ineffective assistance by failing to object to two sets of comments made by the Commonwealth during closing arguments. First, Appellant argues that counsel should have objected to the Commonwealth's characterization of the victim, Riddick, as not being the aggressor when the prosecutor stated that "he has never been arrested in his life, never in trouble, and they know it." Appellant's Brief at 7, quoting N.T., 7/19/12, at 65. Second, Appellant argues that counsel should have objected to the Commonwealth's insinuation that Appellant had a prior record based on the following statements:

[T]he defense is asking you to not convict the defendant because when he was arrested, he's telling his friends he doesn't know what he's in for. Well, what else is he doing? What else has he been doing? So he's not sure what he's been arrested for this time. I don't know. I don't know what

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these charges are. What does that tell you about the defendant if he's unsure?

Id. at 7, quoting N.T., 7/19/12, at 68 (emphasis in original).

According to Appellant, the comments concerning Riddick's lack of a criminal record "were comments on facts outside the record and not supported by any evidence." Id. at 8. Appellant further argues that he was prejudiced by these comments because the "case turned on the credibility of … Riddick" and the comments constituted "improper bolstering." Id. at 9. As to the Commonwealth's second set of comments, Appellant argues that these were not based on any evidence of record and improperly "conveyed to the jury that [Appellant] had committed other unrelated criminal conduct." Id. at 10. Stated briefly, Appellant contends these comments

destroyed [his] chance for a fair trial. On the one hand, the prosecutor improperly vouched for the credibility of its star witness without any evidence of record to support that statement; and on the other hand the prosecutor told the jury that [Appellant] was a criminal who could not be believed. [Appellant's] trial was unfair, and thus his underlying claim has merit. The only question that really ought to be answered is whether trial counsel had a reasonable basis for his failure to object to these remarks. The only way to resolve that question is after the issue is fully litigated at an evidentiary hearing.

Id. at 12.

We consider this claim mindful of the following.

[W]e recognize that a claim of ineffective