Commonwealth v. Holley

• Decision Date: 09 March 2022
• Docket Number: 36 WDA 2021,J-A29022-21
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH OF PENNSYLVANIA v. JESSIE JAMES HOLLEY Appellant

COMMONWEALTH OF PENNSYLVANIA v. JESSIE JAMES HOLLEY Appellant

No. 36 WDA 2021

No. J-A29022-21

Superior Court of Pennsylvania

March 9, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered December 11, 2020 In the Court of Common Pleas of Allegheny County Criminal Division at No(s) CP-02-CR-0014168-2014

BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

BOWES J.

Jessie James Holley appeals from the December 11, 2020 order denying his petition for relief pursuant to the Post-Conviction Relief Act ("PCRA"), wherein he argued that both his trial counsel and appellate counsel were ineffective in failing sufficiently to advance claims for relief implicating the double jeopardy clauses of the United States and Pennsylvania Constitutions. After careful review, we vacate the order and remand with instructions.

This case concerns Appellant's assault of an eleven-year-old child ("Victim") on the evening of September 27 2014, in McKeesport, Pennsylvania. This Court has summarized the facts of the case, as follows:

On September 27, 2014, Appellant's girlfriend was scheduled to babysit Victim. She, however, sent Appellant to watch Victim. While Victim was playing video games, Appellant touched her legs, breasts, and vagina while kissing her neck. Victim retreated to a bedroom. Appellant convinced her to open the door and then entered the bedroom. He touched her vagina and then penetrated her vagina with his fingers. Appellant took Victim's clothes off, performed oral sex on her, and raped her. The next morning, Victim reported the assault.

Commonwealth v. Holley, 200 A.3d 564 (Pa.Super. 2018) ("Holley I") (unpublished memorandum at 1). Appellant was arrested and charged with rape of a child, involuntary deviate sexual intercourse ("IDSI") with a child, aggravated indecent assault of a child, unlawful contact with a minor, aggravated indecent assault, unlawful restraint, indecent assault-person less than thirteen years of age, corruption of minors, and indecent exposure. Appellant was represented by an attorney of the Allegheny County Public Defender's Office ("trial counsel").^[1] His first trial took place from September 24 through September 30, 2015, which resulted in a deadlocked jury. The trial court declared a mistrial. See N.T. Trial I, 9/30/15, at 207.

Appellant's retrial began on December 6, 2016. In his opening statement at that proceeding, trial counsel averred Appellant's DNA had not been found on the bed where the assault occurred, which was consistent with the evidence available to the defense up to that point. See N.T. Trial II, 12/6/16, at 23. Later that day, however, the Commonwealth disclosed that it had overlooked a copy of a DNA test result establishing the presence of Appellant's DNA on the bed sheets. Although the Commonwealth had not provided a copy of this result to the defense, it nonetheless intended to introduce it at trial. Id. at 102-04. Trial counsel argued the admission of this evidence would completely undercut his claims to the contrary in his opening. Id. at 104-06. Appellant requested the test result be excluded from admission at trial, which the trial court cursorily denied. Id. at 107 ("I can't exclude it."). Instead, the trial court declared a second mistrial.

Appellant's third trial commenced on March 13, 2017. Shortly after proceedings began, another discovery discrepancy attributable to the Commonwealth came to light. The only record of these events consists of the following summary provided by the trial court at that trial:

THE COURT: It has been brought to my attention that the McKeesport police just today produced [a] note involved that the victim was alleged - that the victim wrote on the night of the alleged crime as well as a rather extensive forensic interview of the victim. There may be some other articles of evidence available that have not been produced to the District Attorney's Office.

The district attorney has - will immediately turn over this evidence to defense counsel. In an effort to not try this case for the fourth time[, ] the offer was made by the Commonwealth to give the defendant a period of time served, to plead to the indecent assault as well as the sex offender probation. [Trial counsel] has discussed this with [Appellant, ] who has declined the offer.

N.T. Trial III, 3/13/17, at 87. Appellant requested outright dismissal of the charges or, in the alternative, the declaration of a mistrial.^[2] The trial court immediately denied the request for dismissal and declared a third mistrial.

Appellant's fourth trial convened on May 3, 2017. The transcripts reveal that Appellant filed a pro se motion to dismiss all charges on double jeopardy grounds, which trial counsel adopted and presented to the trial court prior to the beginning of the trial.^[3] See N.T. Trial IV, 5/3/17, at 2-4. However, trial counsel declined to pursue a formal hearing or adduce any testimony in support of the motion. Id. Thus, the trial court denied the motion and trial commenced. On May 9, 2017, a jury found Appellant guilty of all charges. The trial court sentenced Appellant to fifteen to thirty years of incarceration for rape of a child, fifteen to thirty years of incarceration for IDSI of a child, and five to ten years of incarceration for unlawful contact with a minor. The sentences were set to run consecutively, resulting in an aggregate term of incarceration of thirty-five to seventy years. No further penalty was imposed on the remaining convictions.^[4] Appellant filed a notice of appeal and was represented by a different attorney from the Public Defender's Office ("appellate counsel"). In pertinent part, appellate counsel raised two issues on Appellant's behalf, namely: (1) a challenge to the weight of the Commonwealth's evidence; and (2) a claim that the trial court imposed an unnecessarily harsh sentence without adequately stating its reasons for doing so. On October 15, 2018, this Court affirmed Appellant's judgment of sentence. See Holley I, supra at 5. Appellant did not seek allowance of appeal in the Pennsylvania Supreme Court.

On January 9, 2019, Appellant filed a timely pro se PCRA petition averring that both trial counsel and appellate counsel were ineffective. PCRA counsel was appointed. Prior to the filing of an amended petition, Appellant elected to proceed pro se after a hearing was held pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Thereafter, the PCRA court dismissed Appellant's petition due to his failure to file an amended pleading. See Order, 7/8/19. On appeal, this Court vacated the order due to the PCRA court's failure to issue notice of its intent to dismiss without a hearing pursuant to Pa.R.Crim.P. 907. See Commonwealth v. Holley, 227 A.3d 398 (Pa.Super. 2020) ("Holley II") (non-precedential decision at 2).

On remand, replacement PCRA counsel was appointed and Appellant was granted leave to file an amended petition. Therein, he averred trial counsel was ineffective for neither seeking a hearing in support of the motion to dismiss or objecting to the trial court's alleged failure to hold a hearing or issue "a statement of findings of fact and conclusions of law" as contemplated by Pa.R.Crim.P. 587(B) . Amended PCRA Petition, 9/8/20, at ¶ 33. By failing to press for the creation of a factual record, Appellant argued that trial counsel allowed the Commonwealth to avoid explaining its "carelessness and apparent deliberate indifference to the possibility of a mistrial or reversal on appeal in failing to disclose evidence that it knew, or should have known existed, and was either in its possession, or the possession of the police prior to the commencement of trial[.]" Id. at ¶ 31. Separately, Appellant asserted appellate counsel was ineffective for neglecting to raise the issue of double jeopardy during Appellant's direct appeal. Id. at ¶ 25. The Commonwealth submitted an answer as directed by the PCRA court.

On November 18, 2020, the PCRA court filed notice of its intent to dismiss Appellant's amended petition without a hearing based upon its conclusion that the claims had no merit. The PCRA court provided Appellant twenty days in which to respond. After receiving no counseled response from Appellant within this time period, the PCRA court dismissed the amended petition.^[5] See Order, 12/11/20. Appellant timely appealed. The PCRA court directed Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b) and Appellant timely complied. Thereafter, the trial court filed a statement in lieu of an opinion pursuant to Rule 1925(a) averring that it was unable to provide a rationale with respect to its dismissal of Appellant's petition because it did not serve as the trial court in the earlier four trials.

Appellant has raised the following issue for our review:

Did the lower court abuse its discretion in denying the PCRA petition, as amended, without a hearing, insofar as [Appellant] established the merits of the claim that counsel was ineffective for failing to move to compel the lower court to comply with Pa.R.Crim.P. 587(B) and for failing to appeal the court's denial of the motion to dismiss on double jeopardy grounds?

Appellant's brief at 4. In reviewing the denial of PCRA relief, "we examine whether the PCRA court's determinations are supported by the record and are free of legal error." Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa. 2014). While "[t]he PCRA court's credibility determinations, when supported by the record, are binding on this Court," this Court applies a de novo standard of review with respect to the PCRA court's legal conclusions. Id.

Appellant seeks an evidentiary hearing in the PCRA court with respect to his claims of ineffectiveness. See Appellant's...