Commonwealth v. Smith, No. 2715 EDA 2019

• Decision Date: 28 December 2020
• Docket Number: No. 2715 EDA 2019
• Citation: 245 A.3d 1103 (Table)
• Parties: COMMONWEALTH of Pennsylvania v. Dwayne SMITH, Appellant
• Court: Pennsylvania Superior Court

245 A.3d 1103 (Table)

COMMONWEALTH of Pennsylvania v. Dwayne SMITH, Appellant

No. 2715 EDA 2019

Superior Court of Pennsylvania.

Filed December 28, 2020

MEMORANDUM BY FORD ELLIOTT, P.J.E.:

Dwayne Smith appeals from the September 5, 2019 order, entered in the Court of Common Pleas of Philadelphia County, denying his PCRA petition. ¹ After careful review, we affirm.

The facts of this case, as found by the trial court, are as follows:

[The victims,] Charles Marshall and his wife, Erica Townsend, ... knew [appellant], who had lived with them in their apartment prior to the incident .... At some point, [appellant] was asked to leave over a dispute involving the [victims’] televisions. [Appellant] ... did not return the keys, which included a "fob", a device to gain access to the building.

[The victims] were in the habit of going to withdraw money from a "MAC" machine in the early morning hours of the first of [the] month, which is when the funds from their social security checks became available. [Appellant] had driven them to do this on several occasions.

Early in the morning hours of July 1, 2015, [the victims] went out to withdraw money, and then returned to their apartment. About one-half hour after returning home they heard a knock on the door. Thinking it was a friend [husband] had seen in the lobby[,] ... he opened the door, whereupon he encountered [appellant and] an unknown male. The unknown male had a gun. He pushed [husband] into the corner and put the gun to his head. [Appellant] demanded money, stating that if [husband] didn't give it up, he was going to shoot [husband]. They then entered the bedroom where the gun was aimed at [wife]. When [wife] fought for the money, [appellant] said to the unknown male that she must want to get shot. The male then put the gun to [wife]’s head and took $900 from her hands. [The victims] were warned that if they called the police they would be shot. [Appellant] and the male then left.

Video of the apartment building showing [appellant] on the premises [was] shown to [wife] and introduced by stipulation.

[Appellant] was stopped ... at which time keys and the apartment entry device were found in his vehicle. The keys and device were identified by [the victims] as the same types of keys and device [appellant] had been given when living with them, but which [he] had not returned.

Trial court Rule 1925(a) opinion, 2/13/17 at 2-4 (citations to notes of testimony omitted).

After a bench trial on March 18, 2016, appellant was convicted of two counts of robbery, conspiracy to commit robbery, one count of burglary, two counts of terroristic threats, possessing an instrument of a crime, and various related offenses." ² ( Id. at 1.) Appellant was sentenced to an aggregate term of 11½ to 25 years’ imprisonment, followed by 5 years’ probation.

Appellant filed a pro se motion for modification of sentence on August 12, 2016. ³ A counseled appeal ⁴ was filed on August 17, 2016. The trial court ordered appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b) on both September 26, 2016 and November 16, 2016. ⁵ Appellant filed his Rule 1925(b) statement on December 7, 2016. A supplemental statement was filed on January 4, 2017. The trial court filed its Rule 1925(a) opinion on February 13, 2017. This court affirmed appellant's judgment of sentence on March 14, 2018. See Commonwealth v. Smith , 2018 WL 1311889 (Pa.Super. March 14, 2018) (unpublished memorandum). Appellant did not file a petition for allowance of appeal with our supreme court.

Appellant filed a timely pro se PCRA petition on August 3, 2018. Counsel ⁶ filed an amended PCRA petition on January 4, 2019. On June 25, 2019, the PCRA court filed notice of its intention to dismiss the petition pursuant to Pa.R.C.P. 907. Appellant did not file a response. Appellant's PCRA petition was dismissed on August 1, 2019. On August 6, 2019, the PCRA court granted appellant's motion to vacate the dismissal of his PCRA petition. ⁷ On September 5, 2019, the PCRA court again dismissed appellant's petition. Appellant filed a timely appeal on September 17, 2019. The PCRA court did not order appellant to file a Rule 1925(b) statement. On September 23, 2019, the PCRA court advised this court that, pursuant to Pa.R.A.P. 1925(a)(1), the findings applicable to this appeal appear in the footnote to its September 5, 2019 order.

On appeal, appellant raises the following issues:

I. Whether the PCRA court erred in denying [a]ppellant's PCRA petition without an evidentiary hearing on the issues raised in the amended PCRA petition regarding trial counsel's ineffectiveness?

II. Whether the PCRA court erred in not granting relief on the PCRA petition alleging counsel was ineffective for the following:

[a.] Trial counsel was ineffective for his unjustified failure to file an alibi notice[?]

[b.] Trial counsel was ineffective for failing to raise the issue of video surveillance evidence[?]

[c.] Appellate counsel was ineffective for failing to argue the denial of the motion that the verdict was against the weight of the evidence[?]

[d.] Appellate counsel was ineffective for failing to argue the denial of the motion to reconsider sentence[?]

Appellant's brief at 8.

Proper appellate review of a PCRA court's dismissal of a PCRA petition is limited to the examination of "whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Miller , 102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). "This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding." Commonwealth v. Hickman , 799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted). In order to be eligible for PCRA relief, a defendant must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). Further, these issues must be neither previously litigated nor waived. See 42 Pa.C.S.A. § 9543(a)(3).

Appellant first contends the PCRA court erred in denying his PCRA petition without a hearing. ( See appellant's brief at 6.) He argues that while the right to an evidentiary hearing is not absolute, "a [PCRA] court may not summarily dismiss a PCRA petition when the facts alleged in the petition, if proven, would entitle [a]ppellant to relief." ( Id. at 16.)

Where a PCRA court has dismissed a petitioner's petition without an evidentiary hearing, as was the case here, we review the PCRA court's decision for an abuse of discretion. See Commonwealth v. Roney , 79 A.3d 595, 604 (Pa. 2013), certiorari denied , 574 U.S. 829 (2014). Moreover,

the right to an evidentiary hearing on a post-conviction petition is not absolute. It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.

Commonwealth v. Wah , 42 A.3d 335, 338 (Pa.Super. 2012) (citations omitted). "[T]o obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Commonwealth v. Johnson , 139 A.3d 1257, 1273 (Pa. 2016). We, therefore, will proceed to address appellant's four claims concerning the ineffectiveness of his trial and/or appellate counsel.

To prevail on a claim of ineffective assistance of counsel under the PCRA, a petitioner must establish the following three factors: "first[,] the underlying claim has arguable merit; second, that counsel had no reasonable basis for his action or inaction; and third, that [a]ppellant was prejudiced." Commonwealth v. Charleston , 94 A.3d 1012, 1020 (Pa.Super. 2014) (citation omitted), appeal denied , 104 A.3d 523 (Pa. 2014). "A claim of ineffectiveness may be denied by a showing that the petitioner's evidence fails to meet any of these prongs." Commonwealth v. Washington , 927 A.2d 586, 594 (Pa. 2007) (citations omitted).

Furthermore, "counsel is presumed to have rendered effective assistance. ... [A] court is not required to analyze the elements of an ineffectiveness claim in any particular order of priority; instead, if a claim fails under any necessary element of the Strickland [ ⁸ ] test, the court may proceed to that element first." Commonwealth v. Lesko , 15 A.3d 345, 374 (Pa. 2011) (citations omitted). "If it is clear that [a]ppellant has not demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met." Commonwealth v. Albrecht , 720 A.2d 693, 701 (Pa. 1998).

"[The] fact-based findings of a post-conviction court, which hears evidence and passes on the credibility of witnesses, should be given great deference, particularly where, as here, the PCRA court judge also served as the trial court judge." Commonwealth v. Martin , 5 A.3d 177, 213 (Pa. 2010), certiorari denied , 563 U.S. 1035 (2011). "[A]s multiple courts have recognized, the trial court is in the best position to review claims related to trial counsel's error in the first instance as that is the court that observed first hand counsel's allegedly deficient performance." Commonwealth v. Grant , 813 A.2d 726, 737 (Pa. 2002).

Appellant's first claim of ineffectiveness is that trial counsel was...