Commonwealth of Pa. v. Figueroa

• Decision Date: 03 October 2011
• Citation: 2011 PA Super 209,29 A.3d 1177
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Josue Rosario FIGUEROA, Appellant.
• Court: Pennsylvania Superior Court

29 A.3d 1177

2011 PA Super 209

COMMONWEALTH of Pennsylvania, Appellee

v.Josue Rosario FIGUEROA, Appellant.

Superior Court of Pennsylvania.

Submitted Aug. 15, 2011.Filed Oct. 3, 2011.

Josue R. Figueroa, appellant, pro se.James B. Martin, Assistant District Attorney, Allentown, for Commonwealth, appellee.BEFORE: BOWES, SHOGAN, and FREEDBERG, JJ.OPINION BY BOWES, J.:

Josue Rosario Figueroa appeals from the order entered December 8, 2010 denying his PCRA petition challenging his 1988 rape conviction. Finding that the PCRA court erred in treating Appellant's petition as a second petition and therefore failed to appoint counsel, we remand for a Grazier¹ hearing to ensure that an on-the-record colloquy is conducted to confirm Appellant's desire to proceed pro se.

The history of this case is long and complex, but a recitation of that background is beneficial to understand how the matter has arrived in its present state. The Commonwealth charged Appellant with rape, involuntary deviate sexual intercourse, indecent assault, and corruption of a minor. The charges stemmed from a May 10, 1987 incident involving a then- sixteen-year-old female friend of Appellant's daughter.

Appellant, at approximately 10:30 p.m. on the date in question, asked the victim if she would like to drive his vehicle. The victim agreed and entered Appellant's car. Appellant then drove the vehicle to purchase beer and gas before permitting the victim to drive. The victim proceeded to drive the vehicle. She eventually pulled the car over to allow Appellant to resume driving. Appellant and the victim exchanged seats and Appellant informed the victim that he deserved a favor for allowing her to drive. He then placed his hand on her breast. The victim exited the automobile but Appellant pursued her on foot. After catching the victim by seizing her jacket and hair, he forced her into a wooded area. Appellant pushed the victim onto the ground, struck her twice, and removed her shirt and bra. Appellant next attempted to strip the victim of her shorts. She persuaded him to let her remove them and tried to escape. However, Appellant seized her by her ankles and brought her to the ground again. Appellant then successfully forced off the victim's shorts, although she attempted to strike him with a rock. Appellant took the rock, slapped the victim, and threatened to kill her.

Thereafter, Appellant began to kiss and bite the victim on both her face and breasts before vaginally raping her multiple times. In addition, Appellant forced the victim to perform oral sex. Finally, he attempted to anally rape the young woman. This attempt was only averted because a motorist and his father approached to investigate the stopped vehicle. The motorist owned an adjacent property that consisted of a salvage yard and his home. He saw Appellant's car parked from his home and was concerned that someone was attempting to steal from the salvage yard.

When the motorist and his father approached Appellant's car, the victim was able to run naked through the wooded area back to the road. Appellant fled the scene in his vehicle while the victim ran down the road. She eventually jumped onto the motorist's car, grabbing hold of its windshield wipers as he pursued Appellant. The driver drove the victim to his home and his wife summoned police and an ambulance. He then attempted to follow Appellant and force him off the road but Appellant was able to escape. The victim was transported to Allentown Hospital where Dr. James F. Guenther examined her. He found a bruise on her left cheek and eye. Fresh bite marks were located on her left breast and there was bruising and an abrasion on her right breast. The victim's back and upper buttocks also were scratched and had abrasions and the doctor removed small stones imbedded in her back. He also found whitish fluid along her pubic area. No sperm was located within the victim's vagina. At the time of the attack, Appellant was on parole.

A jury convicted Appellant of the aforementioned charges on July 18, 1988. Before sentencing, trial counsel filed post-trial motions. Appellant also submitted pro se motions, one of which alleged the ineffectiveness of trial counsel.² As a result of Appellant's ineffective assistance of counsel claim, the court appointed substitute counsel. Somewhat confusingly, two different judges issued separate orders appointing different counsel. Neither attorney took action for over four years and the court appointed yet another lawyer. The original trial judge passed away and a new judge denied the post-verdict motions. On January 25, 1993, the court sentenced Appellant to twelve and one-half to twenty-five years imprisonment. Although represented by counsel, Appellant filed his own pro se appeal four days later. Appellant's then-counsel withdrew on March 22, 1993, and the court appointed a new counselor. That attorney, however, neglected to file an appellate brief. Nonetheless, this Court accepted Appellant's pro se brief and addressed the merits of his contentions, including claims of ineffective assistance of counsel.³ Ultimately, this Court denied him relief and our Supreme Court denied allowance of appeal on April 29, 1994.

Subsequently, Appellant filed a pro se PCRA petition, his first, on January 23, 1996. That petition fell within the one-year grace provision of 42 Pa.C.S. § 9545, and therefore was timely. See Commonwealth v. Beasley, 559 Pa. 604, 741 A.2d 1258 (1999); Commonwealth v. Thomas, 718 A.2d 326 (Pa.Super.1998). Among Appellant's claims was that this Court erred in accepting and ruling on his pro se brief, where he was represented by counsel, in violation of the bar against hybrid representation. The PCRA court denied relief after an evidentiary hearing finding that appellate counsel was not ineffective and that the issue did not involve the truth-determining process and was not cognizable under the PCRA.⁴ On appeal, this Court affirmed, concluding that appellate counsel's abandonment, i.e., failure to file a brief, was not ineffective assistance of counsel. The panel also opined that the bar against hybrid representation set forth in Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993), did not preclude review of Appellant's direct appeal pro se brief since there was no counseled brief filed.

In September 2005, Appellant achieved relief in the federal courts, which directed that his direct appeal rights be reinstated since it determined that Appellant's Sixth Amendment right to counsel during his direct appeal was clearly violated. Figueroa v. Vaughn, 2005 WL 2212362 (E.D.Pa.) (unreported decision). Accordingly, Appellant filed a counseled nunc pro tunc direct appeal. Somewhat inexplicably, counsel did not file that direct appeal until October 8, 2008. In that appeal, Appellant raised a weight of the evidence argument and the ineffectiveness of trial counsel in failing to call the victim's boyfriend to testify.⁵ We rejected both of these positions on the merits, and our Supreme Court denied allowance of appeal on March 19, 2010. Appellant filed a timely pro se PCRA petition on October 12, 2010.

The PCRA court did not appoint counsel pursuant to Pa.R.Crim.P. 904(C). Instead, it treated Appellant's petition as a second time PCRA petition and concluded that he failed to establish a miscarriage of justice. Appellant appealed, raising five issues for our consideration.

I. Whether the PCRA court abused its discretion when it refused to toll time to evaluate the issues presented and, if so, did the district court's order granting direct appeal rights re-set the collateral proceeding clock?

II. Did Appellant received [sic] ineffective assistance of counsel during his direct appeal phase when counsel created an inordinary [sic] delay in violation of due process of the Fourteenth Amendment to the United States Constitution?

III. Was Appellant's constitutional right to a fair trial violated when blacks and Hispanic[s] were excluded from his jury in violation of Batson v. Kentucky, [476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ] and the Sixth and Fourteenth Amendment to the United States Constitution?

IV. Whether the prosecutor violated Brady v. Maryland, [373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ] when the medical report containing material exculpatory evidence was impermissibly suppressed by soliciting false testimony?

V. Whether direct appeal counsel was ineffective for his failure to indicate during the direct appeal whether the victim's boyfriend was available and willing to testify on behalf of Appellant and for failing to interview the witness?

Appellant's brief at 4.

Here, Appellant's first issue gives rise to the question of whether it is appropriate for him to be proceeding pro se. If his PCRA petition is a first-time petition, then he has a rule-based right to counsel.⁶ Further, his petition would not be subject to the more stringent miscarriage of justice standard set forth in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988).

Appellant argues that the PCRA court erred in treating his petition as a second-time PCRA and in determining that certain issues were previously litigated. The Commonwealth candidly agrees that the PCRA court erred in handling Appellant's petition as a second-time petition and that he is entitled to the appointment of counsel and the filing of an amended petition or a Turner/Finley no-merit letter. Nevertheless, Appellant has filed a reply brief expressly stating that he does not wish to have counsel appointed and that he wishes to move forward pro se.

Initially, it is evident that the PCRA court erred in considering Appellant's petition as a second-time PCRA petition. Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.Super.2007) (“It is now well [-]established that a PCRA petition brought after an appeal nunc pro tunc is considered [an] appellant's first PCRA petition”) (brackets in original); Commonwealth v. Karanicolas, 836 A.2d 940 (...