Commonwealth v. Rigg

• Decision Date: 27 January 2014
• Citation: 84 A.3d 1080,2014 PA Super 11
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Raquan RIGG, Appellant.

84 A.3d 1080

2014 PA Super 11

COMMONWEALTH of Pennsylvania, Appellee

v.Raquan RIGG, Appellant.

Superior Court of Pennsylvania.

Submitted June 24, 2013.

Filed Jan. 27, 2014.

Raquan Rigg, appellant, pro se.

James B. Martin, District Attorney, Allentown, for Commonwealth, appellee.

BEFORE: BOWES, MUNDY, and FITZGERALD,^* JJ.

OPINION BY BOWES, J.:

Raquan Rigg appeals pro se from the order entered by the PCRA court that denied his first-counseled PCRA petition and permitted counsel to withdraw pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) ( en banc ). After careful review, we affirm.

A jury found Appellant guilty of aggravated assault, recklessly endangering another person, and simple assault after he stabbed another man in the neck. On December 15, 2009, the trial court sentenced Appellant to seven to fourteen years incarceration on the aggravated assault charge. This sentence was within the standard range of the sentencing guidelines for Appellant's aggravated assault offense, when considering the deadly-weapon enhancement. Specifically, the governing range was sixty-six months to eighty-four months, i.e., seven years. The court noted that it considered a pre-sentence report and placed its reasons for its sentence on the record. Appellant filed a post-sentence motion, which the trial court denied.¹

Thereafter, Appellant filed a timely pro se appeal. The trial court appointed new counsel. Appellant's sole issue on appeal pertained to the discretionary aspects of his sentence. On June 14, 2011, a panel of this Court determined that Appellant presented a substantial question for review, but that his sentencing claim did not entitle him to relief. Commonwealth v. Rigg, 31 A.3d 743 (Pa.Super.2011) (unpublished memorandum). Appellant requested his appellate counsel to seek discretionary review with the Pennsylvania Supreme Court in three separate letters between June 16, 2011 and August 2, 2011. Appellate counsel sent a letter to Appellant on August 16, 2011, after the period for filing for permission of allowance of appeal, indicating that, since Appellant's case involved a challenge to the discretionary aspects of his sentence, no appeal could be filed with the Pennsylvania Supreme Court.

Subsequently, Appellant filed the underlying timely pro se PCRA petition on October 28, 2011.² Therein, he alleged that appellate counsel was ineffective in failing to file a requested petition for allowance of appeal. The PCRA court appointed counsel, who filed a Turner/Finley no-merit letter on February 10, 2012. The PCRA court initially declined to allow counsel to withdraw. Instead, the court directed PCRA counsel to address the applicability of Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (2003).

PCRA counsel apparently complied on February 29, 2012, arguing that Appellant's claim remained meritless because the Pennsylvania Supreme Court is generally without authority to grant allowance of appeal in a case solely involving a defendant's discretionary aspects of sentencing claim.³ The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss. Appellant filed a timely pro se response challenging the court's conclusion as to his Liebel claim only. The court issued a final order on April 18, 2012, dismissing Appellant's petition and allowing counsel to withdraw. This timely appeal ensued on May 15, 2012.

The PCRA court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, filing an original statement on June 19, 2012 and an amended statement on June 25, 2012. The original 1925(b) statement included Appellant's Liebel ineffectiveness claim and an additional issue not raised in his pro se petition. The amended 1925(b) statement also set forth various issues that Appellant had not included in his pro se petition. Appellant now argues both his Liebel claim and each of the non-Liebel issues on appeal.

The PCRA court issued a Pa.R.A.P. 1925(a) decision, concluding that Appellant waived all of the issues not related to his ineffectiveness claim regarding appellate counsel's failure to file a petition for allowance of appeal. As it pertained to that issue, the PCRA court determined that, because the Pennsylvania Supreme Court does not have jurisdiction to consider a defendant's discretionary sentencing challenge, appellate counsel could not be ineffective in declining to appeal to the Supreme Court. Appellant's lone issue in his statement of questions presented is “Whether the PCRA court committed erred [sic] and/or abuse[d] it's [sic] discretion and violated Appellant's right to due process and equal protection of law in failing to allow Appellant the opportunity to amend his PCRA petition and adding issues of arguable merit, prior to dismissing [the] petition without a hearing?” Appellant's brief at 4.⁴

This Court analyzes PCRA appeals “in the light most favorable to the prevailing party at the PCRA level.” Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super.2012). Our “review is limited to the findings of the PCRA court and the evidence of record” and we do not “disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error.” Id. Similarly, “[w]e grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions.” Id. (citations omitted). “[W]here the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.” Finally, we “may affirm a PCRA court's decision on any grounds if the record supports it.” Id.

Although Appellant presents only one issue in his statement of questions, he breaks down his argument respecting that claim into four subparts. Appellant's overarching position is that the PCRA court erred in declining to allow him to amend his petition to include the four issues he sets forth herein. While we are aware of the minor briefing deficiencies insofar as Appellant's brief does not strictly comply with our appellate rules, these irregularities do not prevent us from discussing Appellant's arguments.

The first argument Appellant levels is that trial counsel was ineffective in failing to object or move for a mistrial after the trial court conducted an individual voir dire of an empaneled juror and removed that juror from the jury without questioning additional jurors. Appellant contends that, although the trial court removed the juror in question after the juror admitted to personally knowing one of the prosecution's witnesses, the court did not inquire whether that juror had prejudiced the remaining jury panel members by discussing with them his familiarity with the witness. The Commonwealth counters that Appellant's issue is waived because he did not raise it before the PCRA court. Additionally, the Commonwealth maintains that Appellant's assertion that PCRA counsel was ineffective for failing to raise the issue below is waived for neglecting to assert PCRA counsel's ineffectiveness in his response to the PCRA court's Pa.R.Crim.P. 907 notice of dismissal.

We agree that Appellant's underlying trial counsel ineffectiveness claim is waived for failing to raise it before the PCRA court in his pro se petition, and that his derivative PCRA counsel ineffectiveness claim is waived for failing to assert it in his response to the PCRA court's Pa.R.Crim.P. 907 notice. In Rykard, supra, we outlined both the proper procedure for raising trial counsel ineffectiveness claims not originally included in a pro se petition where counsel files a Turner/Finley no-merit letter, as well as the mode for preserving a claim of PCRA counsel ineffectiveness.

Although Rykard was decided after the PCRA court issued the final order in this case, it relied on case law extant at the time of Appellant's underlying PCRA matter. See Commonwealth v. Pitts, 603 Pa. 1, 981 A.2d 875, 879 n. 3, 880 n. 4 (2009); Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1191 (1999). In Rykard, we concluded that a petitioner must request leave to amend his petition in his Rule 907 response to raise new trial counsel ineffectiveness claims. Rykard, supra at 1192;see also Commonwealth v. Porter, 613 Pa. 510, 35 A.3d 4, 12 (2012) (Pa.R.Crim.P. 905 governing amending petitions is not self-authorizing); Commonwealth v. Derrickson, 923 A.2d 466, 469 (Pa.Super.2007) (after receiving notice that petition was untimely the petitioner “should have sought leave to amend his petition” to allege timeliness exceptions).

Where the petitioner does not seek leave to amend his petition after counsel has filed a Turner/Finley no-merit letter, the PCRA court is under no obligation to address new issues. Rykard, supra; see also Williams, supra at 1191. In contrast, where the new issue is one concerning PCRA counsel's representation, a petitioner can preserve the issue by including that claim in his Rule 907 response or raising the issue while the PCRA court retains jurisdiction. See also Pitts, supra;Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super.2012).⁵ Since Appellant did not seek leave to amend his petition or otherwise preserve his trial counsel and PCRA counsel ineffectiveness claims, he waived the issues he raised for the first time in his Pa.R.A.P. 1925(b) statements. Further, the court cannot have erred in declining to allow Appellant to amend his petition where he never sought that relief before the PCRA court.

Appellant's next position is that trial counsel provided ineffective assistance by improperly advising him not to testify in his own defense. Appellant acknowledges that he underwent an on-the-record colloquy regarding his federal and state constitutional rights to testify, but posits that the colloquy failed to demonstrate that he knowingly and willingly waived his right to ...