Commonwealth v. Snyder

• Decision Date: 20 April 2021
• Docket Number: No. 832 MDA 2020,832 MDA 2020
• Citation: 250 A.3d 1253
• Parties: COMMONWEALTH of Pennsylvania v. Brandon Ross SNYDER, Appellant
• Court: Pennsylvania Superior Court

250 A.3d 1253

COMMONWEALTH of Pennsylvania

v.Brandon Ross SNYDER, Appellant

No. 832 MDA 2020

Superior Court of Pennsylvania.

Submitted November 16, 2020

Filed April 20, 2021

Hank James Clarke II, Pottsville, for appellant.

Michael Andrew O'Pake, District Attorney, Pottsville, for Commonwealth, appellee.

BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.

OPINION BY MURRAY, J.:

Brandon Ross Snyder (Appellant) appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546. After careful review, we affirm in part, vacate in part, and remand with instructions.

In a prior decision, we summarized:

In December 2016, a loss prevention employee from Lowe's Home Improvement Center (Lowe's) contacted Schuylkill County Child Development, Inc. (the Agency) regarding suspicious activity on the Agency's credit card. The Agency had issued the credit card to its employee, Robert Ditzler, to use only after he had an approved purchase order. On December 6, 2016, the Agency fired Ditzler, but Ditzler never returned the credit card to the employer.

Almost two weeks later, from December 18-20, 2016, [Appellant] made purchases totaling $3,546.29 at Lowe's using the Agency's credit card. For each purchase, [Appellant] signed his name as Robert Ditzler. On December 22, 2016, [Appellant] again attempted to use the credit card at Lowe's. When questioned by the cashier, [Appellant] presented his Pennsylvania driver's license, which identified him as Brandon Snyder. A Lowe's employee confronted [Appellant] regarding his authorization to use the credit card under Ditzler's name, at which point [Appellant] left the store, leaving the credit card and merchandise behind.

After a two-day jury trial, [Appellant] was convicted of access device fraud on October 25, 2018. On November 27, 2018, the trial court sentenced [Appellant] to eighteen to thirty-six months’ incarceration in a state correctional facility.

Commonwealth v. Snyder , 2019 WL 4273798, at *1 (Pa. Super. Sep. 9, 2019) (unpublished memorandum) (footnote omitted).

On September 9, 2019, this Court affirmed Appellant's judgment of sentence. Appellant did not petition the Pennsylvania Supreme Court for allowance of appeal.

On September 30, 2019, Appellant pro se filed the underlying PCRA petition, in which he timely alleged ineffective assistance of both trial counsel and direct appeal counsel, Hank J. Clarke, Esquire. Despite Appellant's allegations against Attorney Clarke, the PCRA court appointed Attorney Clarke to represent Appellant in this PCRA action.¹

The PCRA court convened an evidentiary hearing on February 25, 2020. At the start of the hearing, Appellant, acting pro se , withdrew his allegations against Attorney Clarke,² who proceeded to represent Appellant at the hearing. The PCRA court did not advise Appellant that his withdrawal of allegations against Attorney Clarke would foreclose Appellant from raising them in the future. On May 4, 2020, the PCRA court denied Appellant's petition. This timely appeal followed.³ Appellant and the PCRA court have complied with Pennsylvania Rule of Appellate Procedure 1925.

Appellant presents four issues for review, in which he assails trial counsel's effectiveness when he:

(1) Failed to properly litigate a Rule 600 motion he filed during the pre-trial phase of the case, failed to make a motion to dismiss at trial, and failed to preserve the issue for appeal?

(2) Failed to strike a particular juror, Helen Kimmel, from the jury pool to jury selection, despite the fact that [Appellant] specifically requested her removal from consideration?

(3) Failed to request publication of certain security camera footage to the jury that could have exonerated [Appellant] at trial?

(4) Failed to object to the participation of the First Assistant District Attorney of Schuylkill County, Michael Stine, as trial counsel for the Commonwealth, despite the fact that Attorney Stine was employed as Chief Public Defender of Schuylkill County at the time [Appellant] was arrested and charged and [Appellant] was initially represented by the Public Defender's office?

Appellant's Brief at 4.⁴

It is well settled that we review the denial of PCRA relief by "examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error." Commonwealth v. Busanet , 618 Pa. 1, 54 A.3d 35, 45 (2012). "Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the party who prevailed in the PCRA court proceeding." Id.

As each of Appellant's issues claim that trial counsel was ineffective, we further recognize:

It is well-settled that counsel is presumed to have been effective and that the petitioner bears the burden of proving counsel's alleged ineffectiveness. Commonwealth v. Cooper, 596 Pa. 119, 941 A.2d 655, 664 (2007). To overcome this presumption, a petitioner must establish that: (1) the underlying substantive claim has arguable merit; (2) counsel did not have a reasonable basis for his or her act or omission; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance, "that is, a reasonable probability that but for counsel's act or omission, the outcome of the proceeding would have been different." Id. A PCRA petitioner must address each of these prongs on appeal. See Commonwealth v. Natividad , 595 Pa. 188, 938 A.2d 310, 322 (2007) (explaining that "appellants continue to bear the burden of pleading and proving each of the ... elements on appeal to this Court"). A petitioner's failure to satisfy any prong of this test is fatal to the claim. Cooper , 941 A.2d at 664.

Commonwealth v. Wholaver , 644 Pa. 386, 177 A.3d 136, 144 (2018) (citations modified).

However, before we proceed to the substance of Appellant's issues, we would be remiss to disregard Appellant's right to counsel on a first PCRA petition, and the legal authority which provides that appointed counsel "shall be effective throughout the post-conviction collateral proceedings, including any appeal from disposition ...). See Pa.R.Crim.P. 904(C), (F)(2) ; see also Commonwealth v. Figueroa , 29 A.3d 1177 (Pa. Super. 2011) ; Commonwealth v. Robinson , 970 A.2d 455 (Pa. Super. 2009) (en banc ). Likewise, our Supreme Court has recognized the right to effective assistance of PCRA counsel. See Commonwealth v. Jones , 572 Pa. 343, 815 A.2d 598 (2002). "[D]ue process requires that the post conviction process be fundamentally fair. ... Thus, petitioners must be given the opportunity for the presentation of claims at a meaningful time and in a meaningful manner ." Commonwealth v. Bennett , 593 Pa. 382, 930 A.2d 1264, 1273 (2007) (emphasis added). The Supreme Court in Bennett stated, "... while the performance of PCRA counsel is not necessarily scrutinized under the Sixth Amendment, the performance of counsel must comply with some minimum norms. ..." Id. at 1273-74.

Here, the record indicates Attorney Clarke failed to "comply with minimum norms." Despite Attorney Clarke being aware that Appellant's pro se petition contained allegations against him as direct appeal counsel, he did not seek to withdraw or communicate the conflict to the PCRA court. Also, we are unable to determine from the record if he advised Appellant of the consequences of withdrawing the allegations against him. Further, Attorney Clarke, rather than seeking to withdraw from representing Appellant or requesting a continuance to file an amended PCRA petition and prepare for the hearing, proceeded to represent Appellant at the hearing with little, if any, advance preparation. As we discuss further below, these circumstances compel remand.

In his first issue, Appellant asserts trial counsel was ineffective because he did not pursue a speedy trial motion during pre-trial proceedings, did not raise the issue when trial began, and did not preserve the issue for appeal. Appellant's Brief at 8-11. We review the merits of this claim because we are able to do so from our review of the record, and independent of Attorney Clarke's representation.

Rule 600 was designed "to prevent unnecessary prosecutorial delay in bringing a defendant to trial." Commonwealth v. Brock , 619 Pa. 278, 61 A.3d 1015, 1021 (2013). It provides in pertinent part:

(A) Commencement of Trial; Time for Trial

(1) For the purpose of this rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere.

(2) Trial shall commence within the following time periods.

(a) Trial in a court case in which a written complaint is filed against the defendant shall commence within 365 days from the date on which the complaint is filed.

* * *

(C) Computation of Time

(1) For purposes of paragraph (A), periods of delay at any stage of the proceedings caused by the Commonwealth when the Commonwealth has failed to exercise due diligence shall be included in the computation of the time within which trial must commence. Any other periods of delay shall be excluded from the computation.

Pa.R.Crim.P. 600(A)(1), (2)(a), (C)(1).

For purposes of determining the time within which trial must be commenced pursuant to paragraph (A), paragraph (C)(1) makes it clear that any delay in the commencement of trial that is not attributable to the Commonwealth when the Commonwealth has exercised due diligence must be excluded from the computation of time. Thus, the inquiry for a judge in determining whether there is a violation of the time periods in paragraph (A) is whether the delay is caused solely by the Commonwealth when the Commonwealth has failed to exercise due diligence. If the delay occurred as the result of circumstances beyond the Commonwealth's control and despite its due diligence, the time is excluded. In determining whether the Commonwealth has exercised due diligence, the courts have explained that due diligence is

...