Commonwealth v. Harvey

• Decision Date: 25 February 2015
• Docket Number: J-S72021-14,No. 534 WDA 2014,534 WDA 2014
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. NORMAN HARVEY, Appellant

COMMONWEALTH OF PENNSYLVANIA, Appellee v. NORMAN HARVEY, Appellant

J-S72021-14

No. 534 WDA 2014

SUPERIOR COURT OF PENNSYLVANIA

FEBRUARY 25, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered March 4, 2014, In the Court of Common Pleas of Lawrence County, Criminal Division, at No. CP-37-CR-0000954-2010.

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.^*

MEMORANDUM BY SHOGAN, J.:

Appellant, Norman Harvey, appeals pro se from the order denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.

In its opinion, the trial court summarized the factual history of this case as follows:

[A]t approximately 9:30 P.M. on September 19, 2010, the New Castle Police Department received a telephone call that an individual was observed meddling with the front door of Mr. Greek Devasil's (hereinafter, "Mr. Devasil") jewelry store located in the city of New Castle. The store being closed at that time, Officer Richard Ryhal (hereinafter, "Officer Ryhal") of the New Castle Police Department telephoned the owner of the store, Mr. Devasil, on [Mr. Devasil's] cell phone and advised him of the [reason for the] telephone call. Mr. Devasil immediately checked the video surveillance of his store and reported that the video surveillance showed that an individual was at the front door of the store and was trying to gain entrance. Officer Ryhal immediately terminated the telephone call and proceeded directly to Mr. Devasil's store, arriving at the store in approximately one minute.

Mr. Devasil observed [Appellant] at the front door of his store attempting to gain entrance. When Officer Ryhal arrived at the scene, [Appellant] began walking towards the police cruiser. At this time, Mr. Devasil came outside [of] the store and confirmed to Officer Ryhal that [Appellant] was the person he saw on the video surveillance and at his front door attempting to gain entrance. At the time of his arrest, [Appellant] was wearing a dark blue sweatshirt with the hood over his head, black pants, black shoes, and a camouflage mask over his face. Subsequent to placing [Appellant] under arrest, Officer Ryhal searched [Appellant's] person and retrieved a pair of pliers, a screwdriver, a penlight, and a pair of black gloves.

Trial Court Opinion, 11/14/12, at 3-4.

On January 20, 2012, a jury convicted Appellant of the crimes of criminal attempt to commit burglary, possession of an instrument of crime, and loitering and prowling at night time. On April 30, 2012, the trial court sentenced Appellant to serve an aggregate term of incarceration of four and one-half to fourteen years. Appellant filed a timely post-sentence motion, which was denied by operation of law. On March 12, 2013, a panel of this Court affirmed Appellant's judgment of sentence. Commonwealth v. Harvey, 1462 WDA 2012, 69 A.3d 1291 (Pa. Super. filed March 12, 2013) (unpublished memorandum).

Thereafter, Appellant filed, pro se, the instant PCRA petition. The PCRA court then appointed counsel to represent Appellant and scheduled a PCRA hearing. Counsel entered his appearance on behalf of Appellant onMay 14, 2013. The PCRA court held a hearing on December 11, 2013. Further, the PCRA court permitted counsel to subsequently file a PCRA brief on behalf of Appellant. In an order and opinion dated March 4, 2014, the PCRA court denied Appellant's PCRA petition. Appellant then filed this timely appeal pro se. On April 10, 2014, the PCRA court directed Appellant to comply with Pa.R.A.P. 1925(b). Appellant filed, pro se, a compliant Pa.R.A.P. 1925(b) statement on April 21, 2014. On May 27, 2014, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Appointed counsel filed a motion to withdraw as counsel with the PCRA court on May 28, 2014, stating that Appellant desired to proceed on appeal pro se. In addition, Appellant filed, pro se, a handwritten letter dated June 9, 2014, addressed to a deputy prothonotary of this Court entitled "Application for Stay," in which Appellant expressed his interest in proceeding pro se. Appellant also filed with this Court a "Motion for Extension of Time to File Brief," dated June 15, 2014. In a per curiam order dated June 26, 2014, this Court remanded the case to the lower court for a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), suspended the briefing schedule, and dismissed as moot Appellant's motion for extension of time to file brief.

In an order filed August 5, 2014, the PCRA court indicated that, upon remand, it conducted a Grazier hearing and stated that it found "Appellantis of the mental and intellectual capacity to understand his request, his rights and his responsibilities for proceeding pro se and knowingly, voluntarily and intelligently waives his right to representation by counsel and reaffirms his desire to proceed in his appeal pro se," and determined that Appellant was permitted to proceed pro se. Order, 8/5/14, at 1-2. The order further appointed stand-by counsel to offer Appellant assistance in securing materials of record necessary for the PCRA appeal. Id. at 2.

Appellant now presents the following issues for our review, which we reproduce verbatim:

1. Was the PCRS courts determination that all of the appellants claims have been fully litigated and waived clearly erroneous ?

2. Was the PCRA courts determination that trial counsel was not ineffective, clearly erroneous?.

3. Was the PCRA courts determination that appellant was not prejudiced by the action and/or inaction of defense counsel clearly erroneous?.

4. Was the PCRA courts determination unsupported by the documented record ( i.e. PCRA petition, PCRA hearing ) clearly erroneous,

5. Was the PCRA courts determination that appellant is barred from seeking Post-conviction Collateral Relief, clearly erroneous,

6. Did the trial court abuse its discretion in failing to disclose to appellant relationship between juror # 10 and the court?

Appellant's Brief at 4.

Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's determination and whether the PCRA court's determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005)). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Phillips, 31 A.3d at 319 (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)).

In his first issue, Appellant argues that he is entitled to PCRA relief because the PCRA court erred in denying his PCRA petition without ruling on the merits of his claim of trial counsel ineffective assistance that was raised in his pro se PCRA petition and presented during his PCRA hearing on December 11, 2013.¹ Appellant's Brief at 8. Essentially, Appellant claimsthe PCRA court, in its order and opinion dated March 4, 2014, erred in addressing only the claims presented by appointed counsel in PCRA counsel's supplemental PCRA brief and developed at the PCRA hearing, and in failing to address the claims of ineffective assistance of trial counsel with regard to jury selection that Appellant presented in his pro se PCRA petition.

In Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011), our Supreme Court reiterated its "long-standing policy that precludes hybrid representation." Id. at 1036. While Jette involved a counseled appellant attempting to proceed pro se on appeal, our Supreme Court has also declared that "there is no constitutional right to hybrid representation . . . at trial," Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993), or during PCRA proceedings. See Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999) (applying Ellis rationale prohibiting hybrid representation to PCRA proceedings, stating "[w]e will not require courts considering PCRA petitions to struggle through the pro se filings of defendants when qualified counsel represent those defendants"). Accordingly, to the extent that Appellant asserts the PCRA court erred in failing to address Appellant's pro se claims in its opinion dated March 4, 2014, we conclude that this issue lacks merit.²

In his second issue, Appellant argues that he entitled to PCRA relief because the PCRA court erred in dismissing his PCRA petition without ruling upon the issues of "abuse of discretion" that occurred when the trial court failed to ensure that no bias or partiality was present in the jury, i.e., Appellant's right to an impartial jury was violated. Appellant's Brief at 13. Within this issue, Appellant makes a bald allegation that one of the jurors seated in his trial, juror number ten, perjured herself when she failed to disclose her association with the trial judge during general voir dire, and that his rights were violated because he was not present when the trial judge disclosed the association during individual voir dire.

A criminal defendant's right to an impartial jury is explicitly granted by Article 1, Section 9 of the Pennsylvania Constitution and the Sixth Amendment of the United States Constitution. Our Supreme Court has long stated that "the purpose of voir dire is to empanel a fair and impartial jury, not to empanel a jury sympathetic to positions or beliefs of either party." Commonwealth v. Paolello, 665 A.2d 439, 451 (Pa. 1995). As the Pennsylvania Supreme Court explained in Commonwealth v. Johnson, 305 A.2d 5 (Pa. 1973):

the purpose of the voir dire examination is to disclose qualifications or lack of qualifications of a juror and in particular to determine whether a juror has formed a fixed opinion as to the accused's guilt or innocence. The law recognizes that it would be unrealistic to expect jurors to be free from all prejudices, a failing common to all human beings. We can onlyattempt to have them put aside those prejudices in the performance of their duty, the determination of guilt or innocence. We therefore do not expect a

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