Commonwealth v. Wilson

273 A.3d 13

COMMONWEALTH of Pennsylvania

v.Tyreek WILSON, Appellant

No. 1018 EDA 2021

Superior Court of Pennsylvania.

Submitted March 7, 2022

Filed March 31, 2022

Peter Alan Levin, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Joshua S. Goldwert, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Tyreek Wilson appeals from the order of the Court of Common Pleas of Philadelphia County denying Appellant's first petition pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541, et seq . Appellant raises three claims alleging the ineffectiveness of his counsel. We affirm.

In the underlying case, a jury convicted Appellant of robbery, attempted burglary, simple assault, and recklessly endangering another person. On direct appeal, this Court summarized the factual background and procedural history of this case as follows:

On November 15, 2013, at 7:00 p.m., Mary Ellen Kelly went to Holly Turner's apartment at 29th Street and Girard Avenue in Philadelphia, Pennsylvania. See Notes of Testimony (N.T.), 6/9/15, at 55–58, 67, 101–103. Ms. Kelly rang the buzzer for Ms. Turner's apartment. Id . at 103. Ms. Turner, who was using crutches as a result of a broken foot, unlocked the inner vestibule door and the outside door of the apartment building. Id . at 57–58, 103–04. Appellant was standing a few feet behind Ms. Kelly. Id . at 62–63, 103–08. As she entered the vestibule, Appellant pushed his way in behind her. Id . at 63, 103–04, 110–11. The two women attempted to push Appellant out while he tried to force his way into the apartment proper. Id . at 63, 68–71, 104, 110–11. Ms. Turner kicked the apartment door shut while screaming for help. Id . at 69–72, 104, 113–14. During the struggle, both women were able to see Appellant's face; Ms. Kelly noted he was wearing a black coat with a brand tag reading "Zero." Id . at 125.

Appellant punched Ms. Kelly in the face and body, pulled her hair and her scarf, and shoved her against the wall. Id . at 64, 73, 115–16. Ms. Kelly screamed and fell to the ground while Appellant kicked her. Id . at 64, 72–73, 104, 115–17. Ms. Turner kicked Appellant in the groin. Id . at 64, 118. Appellant grabbed Ms. Kelly by the hair and dragged her three to four feet from the vestibule. Id . at 64, 121–23. The cross-body bag she was wearing snapped, and Appellant fled with the purse northbound on 30th Street. Id . at 77, 104, 123; N.T., 6/10/15, at 19–20. During the struggle, Appellant dropped his phone. Id . at 77.

Ms. Turner's neighbors arrived on the scene and told her they had called 911; Ms. Turner spoke to the dispatcher and gave a description of Appellant. See N.T., 6/9/15, at 76–77, 125–26. An unmarked police car arrived within a few minutes: Ms. Kelly got in the car with officers, and Ms. Turner remained at the apartment and picked up Appellant's phone. Id . at 77; N.T., 6/10/15, at 19–20, 23–24, 49–51. Ms. Kelly had an iPhone with a tracking application installed on it, so the police were able to follow Appellant's location. See N.T., 6/9/15, at 125–26; N.T., 6/10/15, at 24. Based on Appellant's westbound trajectory on Girard Avenue, officers concluded Appellant was on a trolley. See N.T., 6/9/15, at 128–29; N.T., 6/10/15, at 24–25.

Officers stopped two trolleys at 34th Street and Girard Avenue; on the second trolley, Ms. Kelly identified Appellant as the assailant. See N.T., 6/9/15, at 129–131; N.T., 6/10/15, at 25–26. Officers recovered Ms. Kelly's iPhone from Appellant, who was then arrested. Id . As a result of the assault, Ms. Kelly suffered a burn across the neck due to Appellant's pulling the bag; a black eye; and bruises on her arms and legs. See N.T., 6/9/15, at 134; N.T., 6/10/15, at 61–62. Police officers obtained a search warrant for Appellant's phone, which was logged into his Facebook account. See N.T., 6/10/15, at 65–70.

Prior to trial, Appellant cut the strap of his electronic monitoring bracelet and fled; a bench warrant was issued for his arrest. See N.T., 6/8/15, at 20–22, 25–26; N.T., 6/9/15, at 13–20, 26; N.T., 6/10/15, at 104–08, 114–133, 135–39. Appellant was subsequently tried in absentia. See N.T., 6/8/15, at 4, 21–22, 25–26; N.T., 6/9/15, at 13–20, 26. After the jury found Appellant guilty on all charges, Appellant was sentenced in absentia to twenty-two to forty-four years of incarceration. See N.T., 6/11/15, at 116–18; N.T., 9/17/15, at 4–6.

On September 22, 2015, while Appellant was still a fugitive, counsel filed a post-sentence motion on his behalf, which the court denied. On October 8, 2015, counsel filed a notice of appeal on Appellant's behalf, again, while he was still a fugitive. Appellant was taken into custody on new charges in October 2015. Following a bench warrant hearing on October 16, 2015, three days prior to the thirty-day appeal period running, the court ordered Appellant to file a Pa.R.A.P. 1925(b) statement. Instead, Appellant filed a second post-sentence motion. Appellant was allowed the opportunity for allocution, but the court denied his motion for reconsideration.

Commonwealth v. Wilson , 3079 EDA 2015, 2017 WL 3933410, at *1–2 (Pa.Super. Sept. 8, 2017) (unpublished memorandum) (footnote omitted).

On September 8, 2017, this Court affirmed the judgment of sentence. In doing so, this Court declined to find that Appellant waived his appellate rights during the time period in which he had been a fugitive as Appellant had been returned to court custody three days before the time to file an appeal had expired.

However, this Court found Appellant had waived his right to challenge the discretionary aspects of his sentence as he had been a fugitive during the time period in which he was required to file a post-sentence motion. Id . (quoting Commonwealth v. Doty , 997 A.2d 1184, 1187 (Pa.Super. 2010) ); Commonwealth v. Deemer , 550 Pa. 290, 705 A.2d 827, 829 (1997) (stating that "a fugitive who returns to court should be allowed to take the system of criminal justice as he finds it upon his return; if time for filing has elapsed, he may not file; if it has not, he may").

This Court determined that there was no merit to the sole issue Appellant had presented for appeal in which he challenged the sufficiency of the evidence supporting his simple assault conviction. On March 28, 2019, the Supreme Court denied Appellant's petition for allowance of appeal.

On March 20, 2020, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel, who subsequently filed an amended PCRA petition, raising claims of ineffectiveness of both trial and appellate counsel. On March 9, 2021, the PCRA court sent Appellant notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. On May 13, 2021, the PCRA court dismissed Appellant's petition. This timely appeal followed.

Appellant raises the following issues for our review on appeal:

1. Whether the court erred in denying Appellant's PCRA petition without an evidentiary hearing on the issues raised in the amended PCRA petition regarding trial counsel's ineffectiveness?

2. Whether the court was in error in not granting relief on the issue that counsel was ineffective for the following reasons:

a. Appellate counsel was ineffective for failing to appeal the denial of the objection to prejudicial evidence.

b. Appellate counsel was ineffective for failing to appeal the denial of the mistrial motion.

c. Trial counsel was ineffective for failing to object to an incorrect jury instruction.

Appellant's Brief, at 8 (reordered for ease of review).

Our standard of review is as follows:

Our review of a PCRA court's decision is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. We view the findings of the PCRA court and the evidence of record in a light most favorable to the prevailing party. With respect to the PCRA court's decision to deny a request for an evidentiary hearing, or to hold a limited evidentiary hearing, such a decision is within the discretion of the PCRA court and will not be overturned absent an abuse of discretion.

Commonwealth v. Maddrey , 205 A.3d 323, 327 (Pa.Super. 2019) (quoting Commonwealth v. Mason , 634 Pa. 359, 130 A.3d 601, 617 (2015) (internal citations and quotation marks omitted)). To successfully challenge the lower court's decision to deny the petitioner a hearing on his PCRA petition, "an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Commonwealth v. Paddy , 609 Pa. 272, 15 A.3d 431, 442 (2011).

Appellant raises several claims of the ineffectiveness of trial and appellate counsel. In reviewing such claims, we are guided by the following principles:

[a]s originally established by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984), and adopted by Pennsylvania appellate courts, counsel is presumed to have provided effective representation unless a PCRA petitioner pleads and proves all of the following: (1) the underlying legal claim is of arguable merit; (2) counsel's action or inaction lacked any objectively reasonable basis designed to effectuate his client's interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome at trial if not for counsel's error.

Commonwealth v. Wantz , 84 A.3d 324, 331 (Pa.Super. 2014) (citations omitted).

"A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels , 600 Pa. 1, 963 A.2d 409, 419 (2009).

Commonwealth v. Selenski , 228 A.3d 8, 15 (Pa.Super. 2020).

First, Appellant argues that appellate counsel was ineffective...