Commonwealth v. Washington

270 A.3d 1151 (Table)

COMMONWEALTH of Pennsylvania

v.Dante WASHINGTON, Appellant

No. 1035 MDA 2021

Superior Court of Pennsylvania.

Filed December 21, 2021

MEMORANDUM BY PELLEGRINI, J.:

Dante Washington (Washington) appeals from the March 22, 2021 judgment of sentence imposed by the Court of Common Pleas of Lycoming County (PCRA court) after his first petition pursuant to the Post-Conviction Relief Act¹ (PCRA) was granted in part and dismissed in part. He raises ineffective assistance of counsel (IAC) claims related to trial and appellate counsel and claims of error related to his resentencing. We affirm in part, reverse in part and remand to allow Washington to pursue a limited direct appeal nunc pro tunc .

I.

We glean the following facts from the certified record. In 2016, Washington was convicted following a bifurcated jury and bench trial of attempted murder, aggravated assault causing serious bodily injury (SBI), aggravated assault with a deadly weapon, four counts of robbery, theft by unlawful taking, possession of a weapon, persons not to possess and carrying a firearm without a license.² The charges were based on an incident in which Washington robbed and shot a taxicab driver, Eugene Williams (Williams), causing serious injuries. At trial, Washington argued that he had been misidentified as the perpetrator. The trial court sentenced Washington to an aggregate term of 36 to 72 years’ incarceration and this Court affirmed the judgement of sentence. See Commonwealth v. Washington , 455 & 480 MDA 2017, at *11 (Pa. Super. Nov. 2, 2018) (unpublished memorandum), allocator denied , 799 MAL 2018 (Pa. April 30, 2019).

Washington timely filed a pro se PCRA petition and the PCRA court appointed counsel. Counsel filed an amended petition raising the following claims relevant to this appeal: IAC for failure to appeal the denial of a mistrial after Juror 29 made prejudicial comments during voir dire , IAC for failure to properly pursue a motion to suppress Williams’ identification of Washington in a photographic line-up and his subsequent tainted in-court identification, and IAC for stipulating to SBI for the purposes of the attempted murder sentence and failing to challenge the use of the Deadly Weapon Enhancement (DWE).³

The PCRA court held a hearing on the petition at which Washington's trial and appellate counsel, Nicole Spring (Spring),⁴ was the sole witness. She first testified regarding the sentencing claims and confirmed that the jury was not asked to make a specific factual finding regarding whether SBI was caused during the attempted murder. After the jury had been discharged, she stipulated that SBI had occurred based on the guilty verdict for the count of aggravated assault causing SBI. The SBI doubled the statutory maximum sentence for the attempted murder and increased the Offense Gravity Score (OGS) from 13 to 14. As a result, the standard range sentence increased from 96 to 114 months to 192 months to the statutory limit of 40 years. Spring testified that she was aware of Apprendi v. New Jersey , 530 U.S. 466 (2000), and Alleyne v. U.S. , 570 U.S. 99 (2013),⁵ at the time of trial, but did not consider the applicability to Washington's case. She testified that she did not have a strategic reason for stipulating to the SBI.

The jury was also not asked to determine whether a deadly weapon was used in the commission of the attempted murder or the robbery. Spring said that she did not have a strategic reason at sentencing for agreeing that the DWE applied to the sentencing guidelines for the attempted murder and robbery convictions. For attempted murder, the DWE increased the standard range from 192 months to the statutory limit to 210 months to the statutory limit. She did not discuss or explain the SBI stipulation or the DWE with Washington before sentencing.

Next, Spring testified regarding Juror 29's statements at voir dire . When the trial court asked the venire whether anyone was familiar with Washington, Juror 29 said, "I've got a question ... if I might have seen his name in a professional capacity[.] I don't know if you want me to list that out loud because it might bias other people." Notes of Testimony, PCRA Hearing, 10/5/20, at 16 (quoting Notes of Testimony, Excerpt of Juror 29, 12/13/16, at 2). Later during voir dire , Juror 29 stated that he was "a staff physician at the Federal Penitentiary in Allenwood." Id. at 17. Spring testified that he made these statements in open court where the approximately 60 potential jurors could hear them.

At that point, Spring's co-counsel approached the trial court at sidebar and requested a mistrial. He argued that the jury pool was tainted by Juror 29's two answers in open court, as the jurors could infer that Washington had been incarcerated in federal prison, which was untrue. The Commonwealth then requested a cautionary instruction. The trial court denied the request, saying that the instruction might bring attention to an issue that the jurors had missed. It then said, "I'm going to believe that it's not prejudicial to your client. I'm just going to motor forward. We know more about this guy if I can get rid of him I will [sic]." Excerpt of Juror 29 at 5.

Spring testified that she and co-counsel were immediately concerned that Juror 29's comments were prejudicial. As a result, she later argued in Washington's post-sentence motion that the denial of the mistrial was prejudicial error. The trial court denied the post-sentence motion, and after filing an appeal, Spring again included the issue in her concise statement pursuant to Pa. R.A.P. 1925(b). However, she did not include the issue in the brief filed on direct appeal.

Spring testified that she had assigned a newer attorney to research the issues in Washington's appeal but discovered that no work had been done on the brief before the filing deadline. The attorney had not provided any research related to the voir dire issue. Spring requested an extension of time to file the brief but ultimately did not to raise the issue related to Juror 29. Of the five issues she chose to raise on direct appeal, three were evidentiary issues that were reviewed under an abuse of discretion standard and two were found to be waived. Spring testified that she believed that the Juror 29 issue was stronger than the ones that she raised on appeal because the error impacted the entire trial, was not harmless, was properly preserved and was highly prejudicial. She testified that she did not have a strategic reason for not raising the issue on appeal.

Next, Spring addressed the motion to suppress Williams’ identification of Washington in a photo line-up and at the preliminary hearing.⁶ Williams identified Washington in a photo line-up of eight men in which he was the only subject wearing an orange shirt that appeared to be a prison uniform. The other individuals were wearing street clothes in darker colors. All photos were of black men with beards. Williams identified Washington as his assailant in the photo line-up while he was still at the hospital following the shooting. At the preliminary hearing, Williams identified Washington by referring to his orange jumpsuit.

The suppression motion sought to suppress the identification on the basis that (1) Williams was under the influence of medication at the time that made the identification unreliable; and (2) the photo array was overly suggestive based on how Washington was depicted. At the hearing on the motion, Spring orally withdrew the second basis for suppression based on Commonwealth v. Sanders , 42 A.3d 325 (Pa. Super. 2011), a case that had been provided to her before the hearing by the Commonwealth. She agreed with the Commonwealth's interpretation of the case to mean that unless there was bad faith conduct on the part of the police conducting the photo line-up, suggestiveness would go to the weight and not the admissibility of the identification.

Spring testified that after receiving the PCRA petition and once again reviewing Sanders , she believed she misinterpreted the holding of the case and erroneously withdrew the suppression motion. She said that Sanders does not address the suggestiveness of the identification procedure, but rather the mental state of the witness making the identification and the weight of that evidence. Based on re-reading Sanders , Spring said that she should not have withdrawn that portion of the suppression motion and that she believed it would have had merit. As a result, she said she did not have a reasonable strategic basis for withdrawing the motion.⁷

Following the reception of the evidence, the PCRA court ordered Washington and the Commonwealth to file briefs in support of their positions. On February 2, 2021, the PCRA court issued an opinion and order granting relief on the sentencing claim relating to the stipulation to SBI for the attempted murder charge and denying relief on the remaining claims. Washington proceeded to resentencing on March 18, 2021, and the PCRA court sentenced him to an aggregate term of 31 to 62 years’ incarceration. Relevant to this appeal, the PCRA court imposed a sentence of 5 to 10 years’ incarceration on the count of aggravated assault with a deadly weapon, a charge for which Washington did not receive a sentence at his original hearing. The PCRA court once again applied the DWE to the charges of attempted murder and robbery.

Washington filed a timely post-sentence motion which the PCRA court denied. He timely appealed⁸ and he and the PCRA court have complied with Pa. R.A.P. 1925.

II.

Washington first argues that the PCRA court erred in dismissing his petition and denying him relief on his IAC claims.⁹ "To prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result." Commonwealth v. Sarvey , 199 A.3d 436, 452 (Pa. Super. 2018). "Prejudice, in this...