Com. v. Schultz

• Decision Date: 22 December 1997
• Citation: 707 A.2d 513
• Parties: COMMONWEALTH of Pennsylvania, v. Deborah SCHULTZ, Appellant.
• Court: Pennsylvania Superior Court

Page 513

707 A.2d 513

COMMONWEALTH of Pennsylvania, v. Deborah SCHULTZ, Appellant.

Superior Court of Pennsylvania.

Submitted July 14, 1997.

Filed Dec. 22, 1997.

Sue A. Pfadt, Erie, for appellant.

Joseph P. Conti, Dist. Atty., for the Com., appellee.

Before EAKIN, SCHILLER and OLSZEWSKI, JJ.

OLSZEWSKI, Judge.

On May 28, 1993, Deborah Schultz, appellant herein, was charged by criminal information with one count each of arson, recklessly endangering another person and causing or risking a catastrophe, as well as three counts of criminal conspiracy to commit the above-related substantive offenses. In January of 1994, appellant and her co-defendant, Ricky Lee Pristello, proceeded to a joint trial by jury. Following deliberations, appellant was found guilty of the substantive offenses with which she was charged and was acquitted of the three criminal conspiracy charges.

Following the preparation of a pre-sentence report, appellant appeared for sentencing before the Honorable George Levin of the Court of Common Pleas of Erie County. Judge Levin sentenced appellant in the mitigated range of the suggested guideline sentences to an aggregate term of fifty to one hundred months' incarceration. Post-sentence motions were timely filed and denied.

Thereafter, appellant effectuated a direct appeal to this Court which, on March 31, 1994, affirmed the judgment of sentence. See Commonwealth v. Schultz, 440 Pa.Super. 653, 655 A.2d 1048 (1994). On May 12, 1995, appellant's petition for allowance of appeal to our Supreme Court was denied. See Commonwealth v. Schultz, 540 Pa. 648, 659 A.2d 987 (1994). Throughout the trial and direct appeal process, appellant was represented by Joseph P. Burt, Esquire, of the Erie County Public Defender's Office.

On May 30, 1995, appellant filed a pro se petition for collateral relief pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq. Attorney Elliot J. Segal was appointed as counsel for appellant and directed to file an amended post-conviction petition. On June 4, 1996, following the filing of said petition, the Honorable Ernest J. DiSantis denied appellant's request for relief. After filing a timely notice of appeal to this Court, Attorney Segal petitioned for, and was granted, leave to withdraw his representation of appellant. By court order, Sue Anthony Pfadt, Esquire, was appointed as appellate counsel.

Seeking to terminate her representation of appellant, Attorney Pfadt has, contemporaneous with her filing of a brief in this matter, filed what she styles an Anders brief with this Court. We note, initially, that briefs filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and its state counterpart Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), are only appropriate when seeking to withdraw from representation of a client on direct appeal. In a collateral attack, such as the instant matter, counsel seeking leave to withdraw must file a document comporting with the requirements of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). This distinction is not merely one of semantics. Rather, as our Supreme Court held in Turner, because a collateral petitioner has a statutory, but not a constitutional, right to counsel, the requirements for withdrawal from a collateral appeal are less cumbersome. Turner, supra.

When seeking leave to withdraw representation from a collateral appeal, counsel must file a "no-merit" letter that (1) details the nature and extent of counsel's review (2) lists each issue the petitioner wishes to raise, and (3) explains why those issues lack merit. See Commonwealth v. White, 449 Pa.Super. 386, 392, 674 A.2d 253, 256 (1996). Once counsel has complied with these requirements, withdrawal will be permitted if, after independent review, we conclude that the issues raised by appellant do not support a grant of relief (i.e., the issues lack merit). See Commonwealth v. Bishop, 435 Pa.Super. 211, 214, 645 A.2d 274, 275 (1994). This is distinguishable from the requirements for withdraw from a direct appeal. In that situation, counsel will not be permitted to withdraw unless all issues presented on appeal are wholly frivolous (i.e., the issues lack arguable merit). See Thornton v. Bd. of Probation and Parole, 525 Pa. 180, 578 A.2d 1289 (1990).

The petition filed by Attorney Pfadt states that she has reviewed appellant's entire file, that she has analyzed the issues on appeal, and that she has researched the same. Further, the brief filed by counsel lists the issues appellant wishes to raise and explains why they lack merit. We are convinced that Attorney Pfadt has satisfied the requirements for filing a "no-merit" letter.

This said, we proceed to an independent evaluation of appellant's petition for collateral relief. Finding that appellant is due no relief, we affirm the order of the trial court dismissing appellant's petition and grant Attorney Pfadt's petition to withdrawal.

When examining a post-conviction court's denial of relief, our scope of review is limited to a determination of whether the court's findings are supported by the record and are otherwise free of legal error. See, e.g., Commonwealth v. Gaskins, 692 A.2d 224, 226 (Pa.Super.1997). The findings of the post-conviction court will not be disturbed unless they have no support in the record. Id. Additionally, we note that there is no absolute right to a hearing pursuant to the PCRA. Rather, the post-conviction court may elect to dismiss a petition if it has thoroughly reviewed the claims presented and determined that they are utterly without support in the record. Id.

As all of appellant's present claims relate to the quality of prior counsels' representation, we will outline the applicable standard of review at the outset. In order to prevail, appellant must demonstrate that the underlying claim is of arguable merit, that counsel's actions had no reasonable basis designed to effectuate her interests and that counsel's actions prejudiced her. See, e.g., Commonwealth v. Patterson, 456 Pa.Super. 202, 205, 690 A.2d 250, 252 (1997); Commonwealth v. Connolly, 456 Pa.Super. 133, 136, 689 A.2d 950, 952 (1997).

In her first issue, appellant claims that trial counsel was ineffective in failing to move for severance of her trial from that of her co-defendant and that appellate counsel was ineffective for failing to present this issue on direct appeal. ¹ The decision whether to grant a severance rests in the sound discretion of the trial court. Absent a manifest abuse of that discretion, this Court will not disturb the trial court's ruling. See, e.g., Commonwealth v. Jones, 542 Pa. 464, 485, 668 A.2d 491, 501 (1995).

In making its determination, the trial court must consider whether judicial economy will be served by trying two or several defendants together and, if so, whether this convenience is outweighed by the possibility of actual prejudice to the defendants. Id. See also Commonwealth v. Zaslow, 448 Pa.Super. 289, 671 A.2d 707 (1996). Additionally, our Courts have consistently held that there is a clear preference in this Commonwealth for trying defendants charged with conspiracy together and, thus, "avoiding the expensive and time-consuming duplication of evidence." Jones, 542 Pa. at 486, 668 A.2d at 501. Finally, "[w]hile the possibility of conflicting and antagonistic defenses is a factor to be considered," the movant "must show a real potential for prejudice and not just mere speculation." Id.

With this in mind, we turn to the facts of the instant matter. Appellant has alleged that the joint trial resulted in actual prejudice and, in fact, was a substantial factor in bringing about her conviction. Additionally, the record plainly reveals that trial counsel did not make a pre-trial motion for severance. Nevertheless, because the filing of such a motion would have been futile, counsel's inaction was reasonable.

Following the fire that consumed their apartment, appellant and her boyfriend, Ricky Lee Pristello, were interviewed by fire and police detectives. The pair claimed that, while moving out of their apartment because they were being evicted, the fire was accidentally started when one of them left a cigarette burning on the couch. See, e.g., N.T. 1/11/94 at 87-89. This story was maintained by both appellant and Mr. Pristello until Mr. Pristello testified at trial in his own behalf. At that point, Mr. Pristello implicated appellant, swearing that she deliberately set the fire and that he initially lied to police and fire investigators to protect appellant from prosecution. Id. at 129-133. After this damning testimony, appellant's counsel cross-examined Mr. Pristello extensively and, eventually, Mr. Pristello stated that he, in fact, was solely responsible for the fire and that his implication of appellant the previous afternoon was done in anger. See, e.g., N.T. 1/12/94 at 8-9.

From these facts, we conclude that appellant's trial counsel was not ineffective in failing to file a pre-trial severance motion. Prior to trial, appellant and her co-defendant had a united defense. Appellant was surprised to learn, at the end of the second day of testimony, that Mr. Pristello was abandoning his defense that the fire was accidental. In fact, Mr. Pristello's trial counsel was utterly surprised by the in-court confession and actually requested that he be permitted to withdraw his representation. It is axiomatic that counsel cannot, at the pre-trial stage, be charged with knowledge of future trial events.

Moreover, because the Commonwealth intended to call the same witnesses and introduce the same evidence against the co-conspirators, the preference for a joint trial was great. As such, a pre-trial severance motion would have been to no avail and, because counsel cannot be found ineffective for failing to follow a futile course of action, appellant's first...