Commonwealth v. Markowitz

• Decision Date: 29 August 2011
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Michael MARKOWITZ, Appellant.
• Court: Pennsylvania Superior Court

2011 PA Super 184

32 A.3d 706

COMMONWEALTH of Pennsylvania, Appellee

v.Michael MARKOWITZ, Appellant.

Superior Court of Pennsylvania.

Submitted June 20, 2011.Filed Aug. 29, 2011.

Kenneth A. Snarey, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney and Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BOWES, PANELLA, and FITZGERALD,^* JJ.OPINION BY BOWES, J.:

Michael Markowitz appeals from the order denying his first PCRA petition, which was filed in 1994. We affirm.

Appellant pled guilty to robbery and criminal homicide on March 6, 1981, as well as numerous other crimes not relevant herein. The murder and robbery charge stemmed from a shooting that occurred during an armed robbery of a pharmacy in Hampton Township, Allegheny County. Appellant's co-defendant gave a statement to police implicating Appellant as the shooter. In addition, two eyewitnesses, the mother and son of the victim, identified Appellant from a photographic police lineup as the individual who committed the killing. The son of the victim physically wrestled the firearm away from Appellant. After an extensive guilty plea hearing, the trial court accepted Appellant's plea. Following a degree-of-guilt hearing, the trial court found Appellant guilty of second-degree murder and deferred sentencing. Ultimately, the court sentenced Appellant to the mandatory term of life imprisonment. Appellant did not file post-sentence motions, which were required at that time to preserve any issues for appeal, nor did he seek a direct appeal.

In 1994, after the enactment of the PCRA, but prior to the adoption of the one-year jurisdictional time bar of the current PCRA statute, Appellant submitted his first PCRA petition. The trial judge who presided over Appellant's plea no longer was a sitting judge and the case was assigned to Judge John A. Zottola. Judge Zottola appointed original PCRA counsel, who withdrew for health reasons. New counsel was appointed and filed an amended petition in March 1997. In that petition, Appellant asserted that he was denied an effective and meaningful opportunity to pursue collateral relief or a direct appeal. Subsequently, counsel amended that petition to include a more specific claim: that Appellant's Sixth and Fourteenth Amendment equal protection and due process rights were violated because there were no available copies of the plea and sentencing hearing transcripts and Appellant could not obtain a meaningful direct appeal.

The Commonwealth filed an answer averring that it was prejudiced due to Appellant's thirteen-year delay in seeking post-conviction relief. See 42 Pa.C.S. § 9543(b). The PCRA court scheduled a hearing on the prejudice matter for December 9, 1997. Apparently, no hearing was held because the matter was transferred to a second judge, who also scheduled an evidentiary hearing on the issue of prejudice to the Commonwealth. That judge thereafter recused himself since he had served as a juvenile probation officer for Appellant. The matter was reassigned to the Honorable Jeffrey A. Manning. Judge Manning scheduled a hearing on December 14, 2001. Before that hearing occurred, the Commonwealth submitted an affidavit indicating that the notes of Appellant's plea and sentencing could not be transcribed because one court reporter was deceased and another could not be located.¹

The court, on December 17, 2001, heard argument on the effect of the parties' inability to obtain the transcripts. The Commonwealth insisted that the lack of transcripts prejudiced its ability to defend against Appellant's claims. PCRA counsel disputed that the Commonwealth was prejudiced, and approximately one year later, filed a brief in support of Appellant's petition. However, prior to the court rendering a decision, counsel withdrew because she was employed as a law clerk and the courts no longer permitted law clerks to be appointed to represent defendants. The PCRA court appointed several different attorneys who each withdrew before the court appointed present counsel.

Counsel filed a third amended PCRA petition and thereafter provided the court with a brief and supplemental brief. In those filings, counsel raised four separate issues. Appellant's initial claim, again, was premised on the denial of a direct appeal. The Commonwealth responded, maintaining that prejudicial delay precluded any relief. Appellant replied, and the court issued a notice of intent to dismiss in July 2007, citing prejudicial delay to the Commonwealth. A final order followed, and Appellant sought review from this Court. In an unpublished memorandum, this Court reversed and remanded, determining that under the PCRA statute, an evidentiary hearing was required prior to a dismissal due to an allegation of prejudicial delay. Commonwealth v. Markowitz, 951 A.2d 1213 (Pa.Super.2008) (unpublished memorandum); see also Pa.R.Crim.P. 908(A)(1).

After remand, on August 28, 2008, the PCRA court conducted the requisite hearing. During that hearing, the Commonwealth established the following. The Hampton Township lead investigator in the case died in 1987. The Allegheny County homicide division, which was in charge of the investigation, no longer possessed any physical evidence or file related to the matter as the physical evidence was destroyed by court order after a 1996 flood. In addition, an officer who interviewed Appellant's co-defendant was deceased, and three other criminal homicide detectives involved in the case had also passed away, including one of the principal investigators. Specifically, Detectives Henry Watson and Richard Martin were the lead Allegheny County detectives investigating the robbery and homicide. Detective Watson was deceased at the time of the evidentiary hearing and Detective Martin was retired and believed to be residing in Tennessee. The officer who was responsible for showing the eyewitnesses the photographic array was also no longer living. Neither the Commonwealth nor Appellant presented any evidence regarding the status of the two family members of the victim who witnessed the crime.

Thereafter, the parties learned that the guilty plea hearing notes of testimony were available, and the court directed that those transcripts be transcribed. On March 8, 2010, the transcripts were filed. Appellant then provided a supplement to his amended petition. The Commonwealth replied shortly thereafter, and the PCRA court scheduled a hearing solely to determine whether Appellant was entitled to reinstatement of his post-sentence and direct appeal rights. Following that hearing, the court dismissed Appellant's PCRA. This appeal ensued.

Appellant's lone contention on appeal is that he is entitled to reinstatement of his direct appeal rights. More specifically, Appellant asserts that plea counsel was ineffective because Appellant informed him to correct his judgment of sentence, which was tantamount to requesting an appeal, and plea counsel should have more adequately consulted with Appellant regarding his desire to file a direct appeal. See Appellant's brief at 2.

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super.2010). This review is limited to the findings of the PCRA court and the evidence of record. Id. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. Id. This Court may affirm a PCRA court's decision on any grounds if it is supported by the record. Id. Further, we afford great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. Commonwealth v. Carter, 2011 PA Super 113, 21 A.3d 680, 681–82.

Although the PCRA court ultimately did not dismiss the current issue on appeal due to prejudicial delay caused by Appellant's delinquent filing of his petition,² and Appellant maintains that the question of prejudicial delay is not presently before this Court, we find it necessary to reach the issue. See Commonwealth v. Weinder, 395 Pa.Super. 608, 577 A.2d 1364, 1375 (1990) (finding actual prejudice but remanding to PCRA court for determination as to whether prejudicial delay would prejudice Commonwealth's ability to retry the defendant).

First, in practice, it would be an exercise in futility to permit a direct appeal where Appellant cannot obtain relief in that proceeding due to operation of § 9543(b). That provision precludes a defendant from being eligible for relief due to prejudicial delay, and states:

(b) Exception.—Even if the petitioner has met the requirements of subsection (a), the petition shall be dismissed if it appears at any time that, because of delay in filing the petition, the Commonwealth has been prejudiced either in its ability to respond to the petition or in its ability to re-try the petitioner. A petition may be dismissed due to delay in the filing by the petitioner only after a hearing upon a motion to dismiss. This subsection does not apply if the petitioner shows that the petition is based on grounds of which the petitioner could not have discovered by the exercise of reasonable diligence before the delay became prejudicial to the Commonwealth.

42 Pa.C.S. § 9543(b) (emphasis added). Thus, even where a defendant can establish that he was prejudiced by counsel's actions or inaction or a court's actions, § 9543(b) prevents the PCRA court from affording relief.

Appellant maintains that a successful sufficiency of the evidence challenge mandates discharge rather than a new trial,³ thereby permitting Appellant relief regardless of any prejudice to the Commonwealth's ability to retry him. Ordinarily, since Appellant pled guilty, he would be limited on direct appeal to asserting that his plea was involuntary, that his sentence was illegal, or that the court lacked jurisdiction. Commonwealth v. Main, 6...