Com. v. Granberry

• Decision Date: 28 July 1994
• Citation: 434 Pa.Super. 524,644 A.2d 204
• Parties: COMMONWEALTH of Pennsylvania v. Donald GRANBERRY, Appellant.
• Court: Pennsylvania Superior Court

Page 204

644 A.2d 204

434 Pa.Super. 524

COMMONWEALTH of Pennsylvania v. Donald GRANBERRY, Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 1, 1993.

Filed Feb. 7, 1994.

Reargument Denied July 28, 1994.

Donald Granberry, appellant, pro se.

Patrick M. Carey, Asst. Dist. Atty., Erie, for the Com., appellee.

Before ROWLEY, President Judge, and JOHNSON and BROSKY, JJ.

BROSKY, Judge.

Donald Granberry appeals from the July 9, 1992, trial court order denying his second petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 et seq. Appellant's appellate counsel, Joseph P. Burt, Esquire, has filed a petition to withdraw as counsel.

Appellant pled guilty to false reports and on March 1, 1984 he was sentenced by Judge William E. Pfadt to one-to-two years imprisonment (this case was docketed at No. 1753 Erie County 1983). He did not appeal to our Court. In a consolidated case (No. 1264 Erie County 1983) a jury found appellant guilty of burglary, receiving stolen property and conspiracy; on September 27, 1984 he was sentenced by Judge Jess S. Juiliante to four-to-eight years imprisonment. On January 9, 1984 appellant pled guilty to conspiracy and burglary; these crimes were docketed under the same Erie County Docket Number (No. 1264 of 1983) as the jury convictions of burglary, receiving stolen property and conspiracy. On March 1, 1984 appellant was sentenced by Judge James Dwyer to one-to-two years imprisonment and eight years probation, to run consecutive to the term of imprisonment.

Appellant appealed the jury convictions and on October 18, 1985 a panel of this Court affirmed his judgment of sentence. Commonwealth v. Granberry, (No. 1380 Pittsburgh 1984). Appellant then filed a petition under the Post Conviction Hearing Act ("PCHA"), 42 Pa.C.S. §§ 9541-9551 (Repealed April 13, 1988); the PCHA petition concerned his convictions under Nos. 1753 and 1264 Erie County 1983. An attorney from the Erie County Public Defender's Office was appointed to represent appellant. Trial Court Order, 9/12/86. On September 20, 1990, the trial court denied the petition, without a hearing. An untimely appeal was quashed by this Court on May 6, 1992. Appellant then apparently violated his probation at No. 1264 Erie County 1983 (the record is unclear regarding this matter but our conclusion is based upon events that transpire in the record subsequent to the gap in the record) and was sentenced.

Appellant then filed a direct appeal to our Court (regarding No. 1264 Erie County, 1983), raising ineffectiveness of counsel issues, a claim that the trial court erred in revoking his probation and a claim that his sentence for probation violation was excessive. On May 21, 1992 our Court found the ineffectiveness claims meritless and the probation revocation claim meritless, 421 Pa.Super. 648, 613 A.2d 28, but, found that the sentence of seven and one-half to fifteen years imprisonment for probation violation "has not been supported by the record before us and unless substantiated by review in accordance with the sentencing code ... it may be considered excessive[ ]"; our Court remanded for resentencing. Commonwealth v. Granberry, (No. 1502 Pittsburgh 1990, at 9-10). Appellant was resentenced and filed an appeal to this Court; as of this writing there has been no disposition of that appeal. Commonwealth v. Granberry, (No. 1342 Pittsburgh 1992).

Appellant then filed the instant pro se PCRA petition, his second post-conviction petition, and his issues and entire argument were as follows:

(1) Trial counsel was ineffective; (2) appellate counsel was ineffective; (3) denial of my 5th and 14th Amend. rights to due process; (4) Inordinate delay; (5) Counsel on PCHA petition was ineffective; (6) Denial of my 1st Amend. right to access of the courts; (7) Prosecutorial misconduct; (8) Official oppression; (9) Denial of my right to appeal; (10) Denial of my 6th Amend. right to a fair trial; (11) Abuse of discretionary aspects of sentence.

Appellant's PCRA Petition. The trial court did not appoint counsel and on July 9, 1992 denied the petition without a hearing. Counsel was appointed for appellant and the instant appeal was filed. The only issue raised was that the trial court erred in failing to appoint PCRA counsel and in denying the PCRA petition without a hearing. Appellant's appellate counsel, Joseph P. Burt, Esquire, then filed a petition to withdraw as counsel and advised appellant that he could raise additional issues. On September 22, 1993 appellant filed a pro se supplemental brief, alleging that (1) his counsel was ineffective (a) for failing to appeal from the denial of his PCHA petition (appellant's first post-conviction petition), (b) for failing to amend the pro se PCHA petition and failing to function as appellant's counsel, (c) counsel failed to request relief on appellant's behalf regarding a September 16, 1986, trial court order, and, (d) present counsel failed to review trial transcripts before he filed the instant petition to withdraw and failed to include in the "no merit letter" and "Anders brief" the issues that appellant wished to have raised; (2) the trial court erred by dismissing the PCHA and PCRA petitions without appointing counsel to assist appellant in amending the petitions; and, (3) the trial court erred (a) in waiting four years to rule on appellant's PCHA petition, (b) in refusing to enforce orders granting appellant's requests for transcripts, (c) in failing to grant appellant's requested relief regarding the September 16, 1985 trial court order, and, (d) in not properly notifying appellant of the summary dismissals of the PCHA and PCRA petitions.

Our scope of review, when examining a post-conviction court's grant or denial of relief is limited to determining whether the court's findings were supported by the record and the court's order is otherwise free of legal error. Commonwealth v. McClucas, 378 Pa.Super. 202, 548 A.2d 573 (1988). The findings of the post-conviction court will not be disturbed unless they have no support in the record. Id.

To be eligible for relief under the Post Conviction Relief Act, an appellant must plead and prove by a preponderance of evidence that his conviction resulted from ineffective 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. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989); 42 Pa.C.S. § 9543(a)(2)(ii).

In establishing a claim of ineffectiveness an appellant must initially demonstrate that the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). Next, if appellant's claim does have arguable merit, we must determine whether counsel's failure to pursue the matter had some reasonable basis designed to serve the interests of his client. Id. Finally, if the record reveals that counsel was ineffective, it must be determined whether appellant has demonstrated that counsel's ineffectiveness so prejudiced the appellant's case that it is likely that the result would have been different absent the errors. Commonwealth v. Tyson, 363 Pa.Super. 380, 526 A.2d 395, appeal denied at 518 Pa. 618, 541 A.2d 745 (1987).

The burden of establishing ineffective assistance of counsel rests upon the appellant since counsel's representation is presumed to be effective. Commonwealth v. Jones, 389 Pa.Super. 159, 566 A.2d 893 (1989). Appellant must demonstrate that counsel's omission or commission was arguably ineffective and the likelihood that appellant was prejudiced as a result thereof. Id.

A claim of ineffectiveness of trial counsel must be raised at the first opportunity at which the counsel whose ineffectiveness is being challenged no longer represents the defendant. Commonwealth v. Miller, 388 Pa.Super. 7, 564 A.2d 975 (1989). "For the purposes of [the PCRA], an issue is waived if the petitioner failed to raise it and if it could have been raised ... on ... appeal or [in any] other proceeding actually conducted or in a prior proceeding actually initiated under [the PCRA]." 42 Pa.C.S. § 9544(b). Appellant must also prove by a preponderance of the evidence that the allegation of error has not been previously litigated. 42 Pa.C.S. § 9543(a)(3).

Initially, we note that since this is appellant's second petition[ ] for post-conviction relief, it "will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred." Commonwealth v. Lawson, 519 Pa. 504, 513, 549 A.2d 107, 112 (1988); see also Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989) (applying Lawson standard of review to second or subsequent petitions filed under the PCRA). This standard is met if the petitioner can demonstrate either that the proceedings resulting in his [or her] conviction were so unfair that a miscarriage of justice which no civilized society can tolerate occurred or that he [or she] is innocent of the criminal charges.

Commonwealth v. Ryan, 394 Pa.Super. 373, 376, 575 A.2d 949, 950 (1990).

Pa.R.Crim.P. 1507(a) states, in pertinent part,

The [trial] judge shall promptly review the [PCRA] motion.... If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the motion ... [without a hearing][.]

The right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Box, 305 Pa.Super. 81, 451 A.2d 252 (1982). A hearing may be denied if a petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence. Id. A post-conviction petition may not...