Commonwealth v. Postie

• Decision Date: 12 December 2018
• Docket Number: No. 93 MDA 2017,93 MDA 2017
• Citation: 200 A.3d 1015
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Frederick Andrew POSTIE, Appellant
• Court: Pennsylvania Superior Court

200 A.3d 1015

COMMONWEALTH of Pennsylvania, Appellee

v.Frederick Andrew POSTIE, Appellant

No. 93 MDA 2017

Superior Court of Pennsylvania.

Submitted July 10, 2018

Filed December 12, 2018

Frederick A. Postie, appellant, pro se.

Jennifer N. Foose, Assistant District Attorney, and Michael A. O’Pake, Assistant District Attorney, Pottsville, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., and McLAUGHLIN, J.

OPINION BY GANTMAN, P.J.:

Appellant, Frederick Andrew Postie, appeals pro se from the order entered in the Schuylkill County Court of Common Pleas, which denied his first petition filed pursuant to the Post Conviction Relief Act ("PCRA").¹ We affirm.

The relevant facts and procedural history of this case are as follows. On October 29, 2013, a jury convicted Appellant of multiple counts of conspiracy, burglary, and other related offenses, in connection with four properties in Rush Township. The trial evidence showed how Appellant and his cohorts, Stephanie Keck and Kerry Frank, chose four properties, which appeared to be uninhabited and in the process of renovations or otherwise under construction, to strip them of tools, copper pipes, wiring, and other items to sell for money or drugs.

Specifically, the Commonwealth presented testimony from, inter alia , Ms. Keck and Mr. Frank, who both received negotiated plea deals in exchange for their testimony. They testified that Appellant had the idea to burglarize the homes because he knew no one was living in them. Ms. Keck and Mr. Frank explained how Appellant deactivated the brake lights on Ms. Keck's vehicle before the burglaries so no one would see them approaching the houses. Ms. Keck was the "look out" and Mr. Frank was the "muscleman." Ms. Keck said they wore gloves to avoid leaving fingerprints, and Appellant told her to keep the butts of any cigarettes she smoked during the burglaries so there would be no DNA left on the properties. After the burglaries, Appellant and Ms. Keck went to a scrap yard to sell the copper pipes, wiring, and other materials they had harvested. Appellant retained fifty percent of all money received; Ms. Keck and Mr. Frank split the remainder. Appellant, Ms. Keck, and Mr. Frank also stole tools from one property, which they sold for drugs. (See N.T. Trial, 10/28/13, at 139-241).

The two police officers, who interviewed Appellant about the crimes, testified that Appellant admitted his involvement in the burglaries. Sergeant Frederick described Appellant as "almost boastful" about his role in the offenses. He told the officers that Ms. Keck and Mr. Frank chose the properties to burglarize because they knew which ones were vacant from their respective jobs as a newspaper deliverywoman and trash collector. Appellant also said they wore gloves to avoid detection. During Sergeant Frederick's testimony, the Commonwealth introduced a written statement Appellant had given to police. Sergeant Frederick read aloud the relevant portions of Appellant's handwritten statement as follows:

I'm not certain of prior activity Kerry Frank or Stephanie Keck were involved [with]. Sometime within the last year, Frank and Keck approached me because Frank saw a few houses that were vacant and had the idea of entering them and removing/selling copper and/or wires. Frank knew the homes were vacant because he would remove trash from the surrounding areas and took notice to the ones that were not occupied. Keck delivered newspapers in a wide area around the...rural county areas and often knew where there were homes for sale [or] vacation[.] These houses were in Rush Township. I was asked to help them with these jobs in exchange for a cut of the profits. Houses were typically checked by me prior to entering to make sure no one was currently occupying the property. Typically after the metals were harvested, either Frank or Keck would deliver [it] to the scrap facility. I did attend the process on more than a few occasions in Pottsville and a facility near Allentown. [O]n at least two occasions in Rush Township[, I was] summoned by Keck to a house to help harvest. One was on Main Street and the other was on 309. [A p]roperty on Fairview Street produced copper, ...rods and wire.

(Id. at 260-61) (emphasis added for later discussion). Both police officers conceded on cross-examination that Appellant's written statement gave less detail than the officers' testimony about what Appellant had actually said during the interview. (See id. at 241-71).

Appellant testified in his own defense and denied any involvement in the burglaries. Appellant maintained Ms. Keck had approached him about the burglaries, but Appellant refused to participate. Appellant claimed Ms. Keck summoned him to the properties on two occasions, under false pretenses. On the one occasion when Appellant went to the location Ms. Keck described and discovered Ms. Keck and Mr. Frank in the midst of a burglary, Appellant said he yelled at Ms. Keck for burglarizing a home situated so close to his own home. Appellant admitted he had helped Ms. Keck unload some of the stolen property at a scrap yard following one of the burglaries because she was pregnant and could not lift the materials. Appellant insisted he did not admit his involvement in the burglaries to police at any time and denied implicating himself in his written statement. Importantly, Appellant disputed the portion of Sergeant Frederick's recitation of Appellant's written statement stating: "Houses were typically checked by me prior to entering to make sure no one was currently occupying the property." Appellant claimed the word "me," as Sergeant Frederick read it, actually says "one." Appellant submitted his trial testimony was consistent with his written statement concerning his lack of participation in the burglaries. (N.T. Trial, 10/29/13, at 287-330).

Following jury instructions, counsel for both parties brought to the court's attention the dispute regarding Appellant's handwritten statement, specifically over whether the statement said "me" or "one." Counsel agreed the jury should view the statement to resolve the dispute. Appellant's written statement in its entirety included some references to events unrelated to the crimes at issue. The parties agreed to redact the statement so the jury could view only the portion of the statement Sergeant Frederick had read during his examination, which was relevant to the charges at issue. The court ruled the redacted statement could go out with the jury during deliberations. (Id. at 367-68). During defense counsel's closing statement, counsel told the jury it would have an opportunity to review the disputed word in Appellant's written statement to confirm Appellant did not admit any role in the burglaries. (Id. at 378-79).

The jury convicted Appellant of two counts of conspiracy and four counts each of burglary, criminal trespass, receiving stolen property, criminal mischief, and theft. The court sentenced Appellant on December 6, 2013, to an aggregate term of 40-132 months' imprisonment plus two years' probation. This Court affirmed the judgment of sentence on January 26, 2015. See Commonwealth v. Postie , 118 A.3d 455 (Pa.Super. 2015). On March 26, 2015, Appellant filed a petition for leave to seek allowance of appeal with the Supreme Court nunc pro tunc , which the Supreme Court denied on April 24, 2015. Therefore, Appellant's judgment of sentence became final on February 25, 2015, upon expiration of the 30-days permitted to file a petition for allowance of appeal. See Commonwealth v. Hutchins , 760 A.2d 50 (Pa.Super. 2000) (holding appellant's judgment of sentence became final upon expiration of 30-day period to file petition for allowance of appeal to Supreme Court from Superior Court's decision affirming judgment of sentence; fact that appellant filed untimely petition for allowance of appeal nunc pro tunc with Supreme Court after expiration of 30-day period, which Supreme Court denied, does not alter date on which Appellant's judgment of sentence became final for purposes of PCRA).

On February 24, 2016, Appellant timely filed his first PCRA petition pro se . Appellant alleged, inter alia : (1) the trial court erred by failing to hold a hearing to pursue whether Appellant wanted to proceed pro se at trial, where Appellant initially indicated he wanted to proceed pro se but later changed his mind; and trial counsel was ineffective for failing to request a hearing on this issue; (2) trial counsel was ineffective for failing to seek an instruction that the jury could not consider testimony from one accomplice as "corroborating evidence" of testimony from another accomplice; and (3) trial counsel was ineffective for agreeing to send Appellant's written statement out with the jury during deliberations. Appellant requested appointment of counsel to litigate his PCRA claims. On March 1, 2016, the court granted Appellant in forma pauperis ("IFP") status and appointed PCRA counsel.

The Commonwealth filed a response to Appellant's pro se PCRA petition on March 30, 2016. Significantly, PCRA counsel did not file an amended petition on Appellant's behalf or seek to withdraw pursuant to Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley , 379 Pa.Super. 390, 550 A.2d 213 (1988) (en banc ). On April 1, 2016, the court issued notice of its intent to dismiss Appellant's petition without a hearing per Pa.R.Crim.P. 907.

On August 8, 2016, Appellant filed a pro se "Motion for Expedited Disposition." Appellant explained he had sent numerous letters to PCRA counsel, but PCRA counsel did not reply. Appellant indicated PCRA counsel did not seek to withdraw under Turner / Finley . Appellant expressed his belief that PCRA counsel had abandoned Appellant. Due to PCRA counsel's abandonment, Appellant said he was forced to assume control over his case to preserve his rights, and chose to ask the court to rule on his...