Commonwealth v. Prater

• Decision Date: 09 July 2021
• Docket Number: No. 677 EDA 2020, No. 676 EDA 2020, No. 679 EDA 2020,No. 673 EDA 2020, No. 674 EDA 2020, No. 678 EDA 2020,673 EDA 2020
• Citation: 256 A.3d 1274
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Wayne PRATER, Appellant Commonwealth of Pennsylvania, Appellee v. Wayne Prater, Appellant Commonwealth of Pennsylvania, Appellee v. Wayne Prater, Appellant Commonwealth of Pennsylvania, Appellee v. Wayne Prater, Appellant Commonwealth of Pennsylvania, Appellee v. Wayne Prater, Appellant Commonwealth of Pennsylvania, Appellee v. Wayne Prater, Appellant
• Court: Pennsylvania Superior Court

256 A.3d 1274

COMMONWEALTH of Pennsylvania, Appellee

v.Wayne PRATER, Appellant

Commonwealth of Pennsylvania, Appellee

v.Wayne Prater, Appellant

Commonwealth of Pennsylvania, Appellee

v.Wayne Prater, Appellant

Commonwealth of Pennsylvania, Appellee

v.Wayne Prater, Appellant

Commonwealth of Pennsylvania, Appellee

v.Wayne Prater, Appellant

Commonwealth of Pennsylvania, Appellee

v.Wayne Prater, Appellant

No. 673 EDA 2020

No. 674 EDA 2020

No. 676 EDA 2020

No. 677 EDA 2020

No. 678 EDA 2020

No. 679 EDA 2020

Superior Court of Pennsylvania.

Submitted February 9, 2021

Filed July 9, 2021

John P. Cotter, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Paul C. Adamski, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.^*

OPINION BY STABILE, J.:

Appellant, Wayne Prater, filed a petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541 - 9546, claiming that his original sentence was illegal and seeking a new trial on the basis of ineffective assistance of counsel. The PCRA court held that Appellant's original sentence was illegal and imposed a new sentence, but it rejected Appellant's claims of ineffective assistance. Appellant moved for reconsideration of his new sentence, which the court denied. He then filed an appeal to this Court challenging his new sentence as well as the denial of his ineffective assistance claims. We affirm.

Appellant stands convicted of multiple crimes against his estranged girlfriend and the mother of his children. On September 15, 2009, the victim obtained a Protection From Abuse order that evicted Appellant from the victim's home and directed Appellant to refrain from any contact with her. On November 30, 2009, Appellant made several harassing phone calls to the victim, smashed her car windows, threw a brick through her home window and slashed her tires. On December 2, 2009, Appellant broke into the victim's home and caused water to pour from the bathtub that he plugged up on the second floor to the first floor through the ceiling. Later that same day, when police spotted Appellant, he fled, resisted arrest, and threatened the arresting officers. On August 16, 2010, Appellant demanded money from the victim and physically assaulted her. On August 18, 2010, police informed the victim that someone had called 911 claiming that she was going to kill herself with a bomb. On August 19, 2010, the victim returned home to find her house again flooded and a pipe bomb in her basement. Police found Appellant's fingerprint on a bag containing an incendiary fuse nearby. On August 20, 2010, police again arrested Appellant and found a cellphone on him that was used to call 911 to inform authorities that the victim supposedly intended to kill herself with a bomb.

Appellant was charged in six separate cases, which the court consolidated for trial. The jury found Appellant guilty of three counts of contempt of a court order; two counts each of assault, harassment, burglary, and terroristic threats; and one count each of criminal trespass, criminal mischief, resisting arrest, stalking, endangering another person, aggravated assault, risking a catastrophe, possession of an instrument of crime, and making offensive weapons. On November 2, 2012, the court sentenced Appellant to an aggregate term of 35½ to 71 years of imprisonment, including a sentence of 10 to 20 years of imprisonment for risking a catastrophe, a third-degree felony under 18 Pa.C.S.A. § 3302. On April 7, 2014, this Court affirmed on direct appeal. Appellant did not file a petition for allowance of appeal with our Supreme Court.

On March 15, 2015, Appellant filed a pro se PCRA petition. Counsel was appointed and was permitted to withdraw without filing an amended petition. New counsel was appointed and submitted a letter stating that the issues in Appellant's petition were meritless and there were no other issues of arguable merit that could be raised. On May 31, 2017, the PCRA court dismissed Appellant's petition. Appellant appealed to this Court, which held that counsel's analysis of the PCRA claims had been cursory and incomplete and remanded the matter to the PCRA court for further consideration. In 2019, new PCRA counsel filed an amended petition and supplemented that petition several times.

In the amended PCRA filings, Appellant contended that his sentence of 10 to 20 years of imprisonment for risking a catastrophe was illegal because this offense is a third-degree felony carrying a maximum sentence of 7 years of imprisonment. In the same filings, Appellant raised multiple claims of ineffective assistance of counsel during trial.

On January 28, 2020, the PCRA court convened a video hearing on Appellant's PCRA claims. The PCRA court determined that it would resentence Appellant to 3½ to 7 years of imprisonment for risking a catastrophe while keeping all other sentences the same, resulting in a new aggregate sentence of 29 to 58 years of imprisonment. Appellant's attorney requested that the new sentence for risking a catastrophe run concurrently with the other sentences, thereby reducing Appellant's total sentence to 25½ to 52 years of imprisonment. N.T., 1/28/20, at 21-22. The Commonwealth objected to this request.

The court denied counsel's request for a concurrent sentence on the charge of risking a catastrophe, relying on its comment at the 2012 sentencing that an above-guidelines sentence was proper due to Appellant's lack of remorse and the threat he posed to the victim. Id. at 29-31.

After counsel informed Appellant of his right to appeal his sentence, the Commonwealth asked the court to address Appellant's claims of ineffective assistance. Appellant's counsel objected on the ground that the appeal from the new sentence would be a direct appeal, and therefore, the Superior Court would not permit Appellant to raise claims of ineffective assistance in the appeal. Id. at 33-34. The court heard argument on the ineffective assistance claims and denied relief. Id. at 34-38.

On January 28, 2020, the PCRA court entered a written order granting relief on the sentencing issue and denying relief on the ineffective assistance claims. On the same date, the court issued a new written judgment of sentence imposing a sentence of 3½ to 7 years of imprisonment for risking a catastrophe while keeping the sentences on all other counts the same as in Appellant's original sentence.

On February 3, 2020, Appellant filed motions seeking reconsideration of his new sentence. On February 12, 2020, the court denied these motions. On February 19, 2020, in each of the six consolidated cases, Appellant filed a notice of appeal from both his new judgment of sentence and the denial of PCRA relief on his ineffectiveness claims. Both Appellant and the court complied with Pa.R.A.P. 1925. By order dated May 5, 2020, this Court consolidated all six of the above-captioned appeals for appeal purposes.

Appellant raises the following issues in these appeals:

I. Is the appellant entitled to a new sentence hearing when the sentence of [29 to 58] years in prison was manifestly unreasonable, unjust and abuse of discretion when it was outside the guidelines and the protection of the community, public, complainant and the record of the appellant do not require such a draconian sentence?

II. Did the trial court err in denying the appellant an evidentiary hearing when appellant asserted material issue of fact that appellate counsel on direct appeal failed to address the issue of speedy trial which was preserved by the trial counsel in the trial court?

III. Did the trial court err in denying the appellant an evidentiary hearing when appellant raised a material issue of fact that trial defense was ineffective in failing to request a mere presence charge to the jury?

IV. Did the trial court err in denying the appellant an evidentiary hearing when appellant asserted a material issue of fact that trial defense counsel was ineffective in failing to call the defense witnesses Balance Jones and Frank Jones instead of offering a stipulation of their testimony when these witnesses would have directly contradicted and refuted the complainant's testimony that the appellant attacked the complaint in their presence?

V. Did the trial court err in denying the appellant an evidentiary hearing when appellant raised a material issue of fact that trial defense counsel was ineffective in failing to call the fact witness Eric Bell whose testimony would have refuted the testimony of the complainant?

VI. Did the trial court err in denying the appellant an evidentiary hearing when appellant raised a material issue of fact that trial defense counsel failed to call an alibi witness that counsel knew existed and where counsel filed an alibi notice concerning this witness prior to trial?

VII. Did the trial court err in denying the appellant an evidentiary hearing when appellant raised a material issue of fact that trial defense counsel failed to file a motion to suppress information that was secured by police from the appellant's alleged cell phone when the police did not secure a search warrant?

VIII. Did the trial court err in denying appellant an evidentiary hearing when appellant raised the issue that trial defense counsel was ineffective for failing to file a motion in limine disallowing the ATF report that contained confusing and misleading information?

IX. Should these consolidated appeals be quashed when they were consolidated by this Court and all the issues are the same and all these cases were consolidated in the trial court for trial, sentence and PCRA proceedings?

Appellant's Brief at 2-3.

As a preliminary matter, we address our jurisdiction to decide the issues raised on appeal. During the January 28, 2020 hearing, after the court announced Appellant's new sentence, Appellant's counsel argued that the court should not address Appellant's claims of ineffective assistance, because "th...