Commonwealth v. Ho
| Docket Number | 19 MDA 2022,20 MDA 2022,21 MDA 2022,22 MDA 2022,23 MDA 2022,24 MDA 2022,25 MDA 2022,26 MDA 2022,27 MDA 2022,28 MDA 2022,29 MDA 2022,30 MDA 2022,31 MDA 2022,32 MDA 2022,33 MDA 2022,34 MDA 2022,J-S12034-23 |
| Decision Date | 01 December 2023 |
| Parties | COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant COMMONWEALTH OF PENNSYLVANIA v. RYAN HO Appellant |
| Court | Pennsylvania Superior Court |
Ryan Ho appeals from the order denying his first petition filed pursuant to the Post Conviction Relief Act (PCRA). See 42 Pa.C.S. §§ 9541-9546. On appeal, Ho contends that the lower court erred in dismissing his petition and further asserts that he adequately demonstrated that his trial counsel provided him with ineffective assistance. Specifically, Ho avers that counsel failed to file a suppression motion predicated on two somewhat-related issues that immediately preceded the time of his arrest. Ho also raises claims as to the effectiveness of his prior PCRA counsel's handling of these issues under Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). After a thorough review of the record, we affirm the two discrete issues raised by appellate PCRA counsel. However, for the reasons explained below, we remand for further proceedings.
Although Ho was charged and convicted at sixteen separate docket numbers featuring offenses ranging from, inter alia, burglary to criminal trespass to indecent assault, the only factual underpinnings relevant to the present appeal are at docket number CP-14-CR-1100-2011, the events of which directly led to his arrest on May 19, 2011. As best as can be gleaned from the record, at 2:38 a.m., Centre County police officers were notified via dispatch call on that date of a home invasion in State College, Pennsylvania, which involved an almost entirely naked male wearing a black mask prying open a door frame and subsequently gaining access to an apartment. As reported, upon entering, the perpetrator masturbated and sexually assaulted the victim. After some period of time, which involved a struggle on the ground between the victim and perpetrator, the perpetrator stood up and ran outside of the apartment.
Immediately thereafter and close in proximity to the apartment, at around 2:40 that same morning, Ho was seized by a police officer on foot who later would testify that he, as a nearby resident, was intimately familiar with the layout of the apartment complex where the assault took place. At that point, Ho appeared to be sweating and was wearing dark, but unzipped, clothing. Moreover, his hair looked as though he had been wearing something over his head. To that officer, Ho appeared to have been walking in a hurried fashion on or towards the footpath, coming from hilly terrain, where he was initially spotted. During this police interaction, Ho was ordered to stop. He was then patted down, whereupon a screwdriver, black mask, surgical mask, and latex gloves were found. In addition, the victim, who arrived with another officer, requested, for identification purposes, that a mask be placed on Ho's head. This act resulted in the victim recognizing Ho as the individual who both broke into her apartment and then proceeded to sexually assault her. Ho was subsequently arrested.
Eventually, on the afternoon following his arrest, Ho confessed to being involved in all of the sixteen criminal cases in which he would ultimately be found guilty. Specifically, among other admissions, Ho admitted to targeting Asian females and acting in ways that would minimize his risk of getting caught. Subsequent DNA analysis linked him to two of the sixteen crime scenes.
After being charged, Ho's trial counsel filed a motion to suppress Ho's confession, alleging that it was involuntary, which was ultimately denied. Following a three-day jury trial, Ho was convicted on all sixty-eight counts he faced, which resulted in an aggregate sentence of twenty-six to fifty-two years of incarceration.
Ho's trial counsel then concurrently filed post-sentence motions and a motion to withdraw from representation. Thereafter, Ho's trial counsel was permitted to withdraw, and the court appointed the Centre County Public Defender's Office to represent him. Several months later, the court denied Ho's post-sentence motion.
After this denial, Ho filed a notice of appeal to this Court, which resulted in an affirmance of his judgment of sentence. Following our disposition, Ho petitioned our Supreme Court for further review, but was denied an allowance of appeal by that Court on May 29, 2014. Ho did not file a petition for certiorari with the United States Supreme Court.
On June 26, 2015, Ho, while counseled, filed a PCRA petition, his first, alleging ineffective assistance of trial counsel. On March 17, 2016, Ho filed an amended PCRA petition, which, too, asserted ineffective assistance of counsel. Despite including since-abandoned claims, the amended petition also raised the two counseled issues that are currently in dispute.
On December 14, 2017, the PCRA court[1] held an evidentiary hearing. That hearing featured an examination into trial counsel's reasons for not challenging Ho's initial investigatory detention and, separately, the seizure of items that were uncovered from the police officer's pat down. Following this hearing, the court denied PCRA relief on November 7, 2018.
PCRA counsel then sought leave to withdraw as counsel, which was granted. Ho, in a pro se capacity, filed a motion for reconsideration of the PCRA court's dismissal of his petition. The court granted Ho's motion on December 3, 2018.[2] Eventually, Ho, still pro se but apparently at that point with the benefit of standby counsel, filed an amended PCRA petition on June 12, 2019. Finally, the court, on November 23, 2021, entered an order denying PCRA relief without any further evidentiary hearing. Ho, while continuing to be pro se, filed a timely notice of appeal from this decision. However, after this filing, new PCRA counsel was appointed to represent him, and Ho continues to be represented by this counsel in the present appeal. Ho, through his current appellate PCRA counsel, filed an appellate brief raising two issues, the first based upon the ineffectiveness of trial counsel and the second upon the ineffectiveness of Ho's prior PCRA counsel.
On July 25, 2023, this Court issued a memorandum materially disposing of those two claims. However, in a document dated July 31, 2023, and filed August 3, 2023, Ho submitted a pro se "Application for Reargument and Appointment of New Counsel". In that filing, Ho purports to raise additional ineffective assistance of counsel claims under Bradley, this time against his current appellate PCRA counsel. Inter alia, Ho contends that appellate PCRA counsel failed to raise meritorious issues before this Court that had been allegedly raised by Ho before the PCRA court in a pro se capacity. See, e.g., Application for Reargument and Appointment of New Counsel, 8/3/23, at 8-9. Normally, Ho's application, filed while he was still represented by counsel, would constitute a legal nullity, given this Court's general prohibition on hybrid representation. See, e.g., Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016).
In light of our Supreme Court's Bradley decision, which allows for "a petitioner to raise claims of PCRA counsel's ineffectiveness at the first opportunity … even if on appeal," 261 A.3d at 401 (emphasis added), this Court granted panel reconsideration and withdrew the July 25, 2023 memorandum. Thereafter, on October 2, 2023, we issued an order directing Ho and/or appellate PCRA counsel to: (1) file an application to proceed pro se, (2) retain independent private counsel; or (3) file a petition to withdraw from representation and request the appointment of new counsel. See Order, 10/2/23, at 6-7. On October 23, 2023, Ho's appellate PCRA counsel filed a petition to withdraw and simultaneously requested the appointment of new counsel.
In this memorandum, we initially address the two questions raised by PCRA appellate counsel in his brief filed in this Court:
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