Commonwealth v. Freeland

Decision Date11 December 2014
Docket NumberNo. 1790 MDA 2013,1790 MDA 2013
Citation106 A.3d 768,2014 PA Super 274
CourtPennsylvania Superior Court
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Keyon Tyrell FREELAND, Appellant.

Keyon T. Freeland, appellant, pro se.

Stephanie E. Lombardo, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*

Opinion

OPINION BY PLATT, J.:

Appellant, Keyon Tyrell Freeland, appeals pro se from the order denying his first petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 –9546. Counsel has filed a Turner / Finley “no merit” letter and petitioned this Court for permission to withdraw.1 Appellant filed a response to counsel's petition. Appellant has also filed a pro se brief. We grant counsel's petition and affirm the order denying PCRA relief.

Appellant's conviction arose out of an incident on January 8, 2011, when he shot at Kyree Maxfield and Ja'Quinn Barnes, seriously wounding Maxfield, but missing Barnes. The attack was apparently in retaliation for the shooting of Appellant's friend, Ayon Coleman, at a party which Maxfield and Barnes had also attended earlier the same evening. After stopping Maxfield and Barnes on the street and questioning them, Appellant pulled out two guns and opened fire, saying, “Someone has to pay[.] (N.T. Trial, 12/06/11, at 125; see also id. at 127).

Maxfield received four shots to his leg, two rupturing his femoral artery and femoral vein, as well as a gunshot wound

to his left hand, apparently received as a defensive wound when he tried to shield his head from the barrage of bullets. (See id., at 157–58). The attending trauma surgeon, Keith David Clancy, M.D., accepted without objection as an expert in trauma, surgery, and critical care, testified at trial that Maxfield would have died from bleeding or sepsis in the leg without immediate surgery. (See id., at 154, 159, 160).

From his hospital bed, Maxfield identified Appellant as his assailant in a color photo array. Appellant's photo was apparently tinged in red. Nevertheless, at trial Maxfield denied that Appellant was the shooter, claiming he was shot by somebody from a local mall. (See N.T. Trial, 12/07/11, at 341–42).

A few days after the shooting, on January 12, 2011, police attempted to stop Appellant while he was driving a stolen vehicle without a license. He fled. The police pursued him in a high speed chase. When he crashed the vehicle into a telephone pole, he tried to escape on foot. As Appellant ran, he dropped two handguns to the ground. The police video recorded the entire incident on the dashboard camera of their patrol car. The Commonwealth played the video for the jury at trial.

Shortly after the trial judge adjourned the court session, excused counsel and sent the jury to begin deliberations, the jury sent out a question, requesting to see a copy of the trial transcript. (See N.T. Trial, 12/08/11, at 426–27). The trial judge replied, without bringing counsel back, that the jury had to rely on its memory of the testimony. The judge subsequently explained this action on the record, with counsel present, and asked if either counsel had any objections or wanted to supplement the record. (See id., at 427). Both declined. (See id. ).

On December 8, 2011, a jury convicted Appellant of attempted homicide and related offenses. (See id., at 431). Specifically, the jury convicted Appellant of the attempted homicide of Maxfield; aggravated assault (causing serious bodily injury) of Maxfield; and illegal possession of a firearm. The jury acquitted Appellant of the attempted homicide of Barnes, and aggravated assault (serious bodily injury) of Barnes.

On February 17, 2012, the court sentenced Appellant to an aggregate term of not less than fourteen nor more than twenty-eight years' incarceration in a state correctional institution. Appellant filed a post-sentence motion which the trial court denied.

Appellant filed a direct appeal, challenging the sufficiency of the evidence for attempted homicide, the publication to the jury of the red-tinged color photo from the photo array “lineup” that he claimed depicted injuries to his face (which he argued gave him the image of a propensity for violence), and the trial court's admission of the police video of the car chase and flight on foot. This Court affirmed the judgment of sentence, rejecting all three claims. (See Commonwealth v. Freeland, No. 553 MDA 2012, unpublished memorandum at 5–9 (Pa.Super. filed August 23, 2012)).

In particular, this Court found the claim of error for playing the video waived for failure to object at trial. (See id. at 9). However, the Court added in a footnote that even if the claim had been properly preserved for appeal, it would fail because the evidence was relevant to show consciousness of guilt, with the probative value outweighing the danger of unfair prejudice. (See id. at 9 n.7).

On March 4, 2013, Appellant filed a pro se petition for PCRA relief. The PCRA court appointed counsel, who filed an amended petition on April 24, 2013.2 That counsel, and other counsel, were permitted to withdraw; the court eventually appointed Attorney Scott A. McCabe, who filed an amended petition on August 16, 2013.3

After a hearing on September 25, 2013, the PCRA court denied relief from the bench. The court followed up with a written order denying relief, which also explained the reasons for its denial.4 Counsel filed a timely notice of appeal on October 3, 2013.5

On March 13, 2014, this Court remanded the appeal back to the PCRA court for a determination of whether counsel had abandoned Appellant by failure to file a brief. (See Order, per curiam, 3/13/14). After a hearing, the PCRA court found that counsel had drafted a Turner /Finley letter, but because of an office breakdown in communication, inadvertently failed to file and serve it in a timely fashion. (See N.T. Hearing, 3/27/14, at 1–4; see alsoOrder, 3/27/14, at 4–6). Therefore, the court concluded, counsel had not abandoned his client. (See N.T. Hearing, 3/27/14, at 4). The PCRA court issued an order directing counsel to file and serve his Turner /Finley letter and application to withdraw with this Court; the PCRA court also recommended that this Court permit counsel to file his Turner /Finley letter. (See Order, 3/27/14, at 5).

On April 4, 2014, Attorney McCabe filed a petition to withdraw with this Court, attaching his Turner /Finley “no merit” letter, (as originally addressed to Appellant), with notice to Appellant that he had the right to proceed pro se or retain private counsel. Appellant filed an application for relief on April 29, 2014, and his pro se response to the Turner /Finley letter on May 2, 2014. Appellant also requested an extension to file a “cross-appeal” in support of his opposition to counsel's petition to withdraw. (Application for Extension of Time, 7/02/14).

On August 4, 2014, this Court granted Appellant a thirty day extension to file a response to counsel's petition, as requested, and to file a brief on the merits of the appeal. (See Order, per curiam, 8/04/14). When the original extension period had expired, this Court granted Appellant an additional fifteen days' extension, with the proviso that no additional extensions would be granted. (See Order, 9/08/14). Appellant has now “timely” filed a pro se brief in response to counsel's petition to withdraw. (See Appellant's Brief, filed 9/10/14).

Appellant's brief raises three questions:

A. Did the PCRA/[t]rial [c]ourt err on remand when the [c]ourt [c]oncluded that Attorney Scott A. McCabe did not abandon the [A]ppellant on appeal?
B. Should counsel be allowed to withdraw after abandoning [A]ppellant, pursuant to Turner /Finley when counsel did not certify [A]ppellant's lack of merit on appeal?
C. Does [A]ppellant have meritorious issues?

(Appellant's Brief, at 4).

Before we may review the merits of Appellant's claims, we must determine if counsel has satisfied the requirements to be permitted to withdraw from further representation.

The Turner /Finley decisions provide the manner for post-conviction counsel to withdraw from representation. The holdings of those cases mandate an independent review of the record by competent counsel before a PCRA court or appellate court can authorize an attorney's withdrawal. The necessary independent review requires counsel to file a “no-merit” letter detailing the nature and extent of his review and list each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, see Turner, supra, then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit. See [Commonwealth v. ] Pitts [603 Pa. 1, 981 A.2d 875, 876 (2009) ], supra at [ ] n. 1.
In Commonwealth v. Friend, 896 A.2d 607 (Pa.Super.2006)abrogated in part by Pitts, supra, this Court imposed additional requirements on counsel that closely track the procedure for withdrawing on direct appeal. Pursuant to Friend, counsel is required to contemporaneously serve upon his client his no-merit letter and application to withdraw along with a statement that if the court granted counsel's withdrawal request, the client may proceed pro se or with a privately retained attorney. Though Chief Justice Castille noted in Pitts that this Court is not authorized to craft procedural rules, the Court did not overturn this aspect of Friend as those prerequisites did not apply to the petitioner in Pitts. See Pitts, supra at 881 (Castille, C.J., concurring).
After the decision in Pitts, this Court held in Commonwealth v. Widgins, 29 A.3d 816 (Pa.Super.2011), that the additional procedural requirements of Friend were still applicable during collateral review.

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super.2012), appeal denied, 619 Pa. 714, 64 A.3d 631 (2013) (footnote omitted).

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