Commonwealth v. Burrell

• Decision Date: 19 January 2023
• Docket Number: 1334 MDA 2021,J-S28043-22
• Parties: COMMONWEALTH OF PENNSYLVANIA Appellee v. DONALD CHARLES BURRELL, Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA Appellee v. DONALD CHARLES BURRELL, Appellant

No. 1334 MDA 2021

No. J-S28043-22

Superior Court of Pennsylvania

January 19, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered September 16, 2021 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000178-2014

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM

KING J.

Appellant Donald Charles Burrell, appeals from the order entered in the Bradford County Court of Common Pleas, which dismissed his first petition filed under the Post Conviction Relief Act ("PCRA").^[1] We affirm.

A prior panel of this Court set forth the relevant facts and procedural history of this appeal as follows:

In 2013, [Appellant] was charged with sexually assaulting his daughter consistently over a 20-year period. He had previously been charged with many of the same crimes in 2002 but after his daughter had recanted, the Commonwealth nolle prossed the charges. The charges were filed again in 2013, alongside charges arising from conduct occurring between 2002 and 2013.

In pre-trial motions, [Appellant] raised the issue of his competency to stand trial, whether double jeopardy barred the prosecution of the crimes he had been charged with in 2002, and whether the search warrant for his computer was overbroad. After the trial court denied all three motions, the case proceeded to a jury trial.

At trial, the victim testified that [Appellant] kept a calendar that memorialized the abuse, as well as assorted other evidence. The calendar recorded over 200 incidents of sexual intercourse between [Appellant] and his daughter. The jury found him guilty on all charges.

The trial court subsequently sentenced [Appellant] to an aggregate sentence of 1,031 to 2,546 years of imprisonment. It accomplished this sentence by running the sentences for all non-merged convictions consecutively. [Appellant] filed post-sentence motions, which the trial court denied.

Commonwealth v. Burrell, No. 660 MDA 2016, unpublished memorandum at 1-2 (Pa.Super. filed June 28, 2017), appeal denied, 644 Pa. 518, 177 A.3d 820 (2017).

This Court affirmed the judgment of sentence on June 28, 2017, and our Supreme Court denied Appellant's petition for allowance of appeal on December 27, 2017. On December 7, 2018, Appellant timely filed a pro se PCRA petition. The court appointed counsel ("first PCRA counsel"), and it provided sixty (60) days for the filing of an amended petition. Appellant did not file an amended petition within that period, and the court issued Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing on July 11, 2019. Appellant filed a pro se response to the Rule 907 notice and claimed that first PCRA counsel had abandoned him. Consequently, the court removed first PCRA counsel on August 8, 2019. In a separate order entered that same day, the court appointed current counsel.

Following the grant of several extensions, current counsel filed an amended PCRA petition on Appellant's behalf on February 12, 2021. In it, Appellant raised various claims of trial counsel's ineffectiveness. On May 27, 2021, the Commonwealth filed an answer to the amended petition. By order and opinion entered September 16, 2021, the court denied PCRA relief.

Appellant timely filed a notice of appeal on October 15, 2021. On October 20, 2021, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant timely filed his Rule 1925(b) statement on November 8, 2021.

Appellant now presents the following issues for this Court's review:

Did the PCRA court commit an abuse of discretion and error as a matter of law by dismissing Appellant's amended PCRA without proper notice of the court's intent to dismiss the amended PCRA Petition.

Did the PCRA court commit an abuse of discretion and errors as a matter of law in determining that Appellant's PCRA claims lacked merit when trial counsel did not properly make a viable Rule 600 claim, allowed inflammatory statements to be made by the district attorney during the Commonwealth's closing argument, and allowed inadmissible electronic evidence to be admitted into evidence at the time of trial without proper authentication?^[2]

(Appellant's Brief at 3).

"Our standard of review of [an] order granting or denying relief under the PCRA calls upon us to determine whether the determination of the PCRA court is supported by the evidence of record and is free of legal error." Commonwealth v. Parker, 249 A.3d 590, 594 (Pa.Super. 2021) (quoting Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.Super. 2013)). "The PCRA court's factual findings are binding if the record supports them, and we review the court's legal conclusions de novo." Commonwealth v. Prater, 256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, __Pa.__, 268 A.3d 386 (2021).

In his first issue, Appellant relies on Pa.R.Crim.P. 907(1) for the proposition that a PCRA court must "give notice to the defendant of its intention to dismiss the petition and provide the defendant with the reasons for the dismissal." (Appellant's Brief at 8). Appellant acknowledges that the court provided Rule 907 notice after he filed his initial, pro se petition, but Appellant emphasizes that he subsequently filed a counseled, amended petition. Appellant maintains that his amended PCRA petition "was substantially different in both form and substance than the initial pro se PCRA petition." (Id. at 9). Consequently, Appellant argues that the court should have provided a second Rule 907 notice of its intention to dismiss the amended PCRA petition without conducting an evidentiary hearing. Appellant concludes that the PCRA court abused its discretion by failing to issue Rule 907 notice prior to the dismissal of the amended PCRA petition. We disagree.

Rule 907 governs the consideration of PCRA petitions as follows:

Rule 907. Disposition Without Hearing

Except as provided in Rule 909 for death penalty cases,

(1) the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant's claim(s). 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 petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.

Pa.R.Crim.P. 907(1).

Instantly, the PCRA court did not summarily dismiss the petition upon initial review. Rather, the court: 1) appointed counsel and provided sixty days for the filing of an amended petition; 2) issued Rule 907 notice when Appellant did not file an amended petition within sixty days; 3) considered Appellant's pro se response to the Rule 907 notice, wherein Appellant claimed that counsel had abandoned him; 4) removed first PCRA counsel and appointed current counsel; 5) permitted Appellant to file a counseled, amended petition; and 6) permitted the Commonwealth to file an answer to the amended petition. The court's actions afforded Appellant multiple opportunities to present arguments in support of the original pro se petition, which is all that Rule 907 requires. See Commonwealth v. Albrecht, 554 Pa. 31, 63-64, 720 A.2d 693, 709-10 (1998) (analyzing Rule 1507(a), which was later renumbered Rule 907; holding Rule 1507 was inapplicable where PCRA court did not summarily dismiss petition upon initial review, but rather ordered appointment of counsel, filing of amended petition, and briefing of legal issues presented; appellant could not demonstrate Rule 1507 violation where he was afforded further proceedings and opportunity to present arguments in support of petition). Accordingly, Appellant is not entitled to relief on his first issue.

In his second issue, Appellant complains about trial counsel's failure to object to certain prosecutorial tactics. Initially, Appellant notes that the victim "was permitted to testify that Appellant never remarried and that he never had another romantic relationship following Appellant becoming divorced from [the victim's] mother." (Appellant's Brief at 11). Appellant contends that such testimony possessed no probative value, it caused him to suffer prejudice, and trial counsel should have objected. Appellant also asserts that the district attorney improperly referred to this testimony during his closing argument.

Specifically, the district attorney mentioned that the week of trial began with Father's Day, and he used this fact as a segue to emphasize the testimony regarding Appellant's abuse of his daughter. Appellant argues that the district attorney "referenced Father's Day to unfairly evoke the jury's emotions such that the jury would disregard the evidence that was actually presented at trial." (Id. at 14). Appellant concludes that "[t]rial counsel's failure to object to these remarks and questions … amounted to ineffective assistance of counsel," which "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." (Id. at 15). We disagree.

"Counsel is presumed to have rendered effective assistance." Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal denied, __Pa.__, 242 A.3d 908 (2020).

[T]o establish a claim of ineffective assistance of counsel, a defendant must show, by a

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