Commonwealth v. Warren

• Decision Date: 08 November 2022
• Docket Number: 1555 EDA 2021
• Parties: COMMONWEALTH OF PENNSYLVANIA v. DAMIRE WARREN Appellant
• Court: Pennsylvania Superior Court

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COMMONWEALTH OF PENNSYLVANIA v. DAMIRE WARREN Appellant

No. 1555 EDA 2021

Superior Court of Pennsylvania

November 8, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered June 23, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004926-2017

BEFORE: BOWES, J., NICHOLS, J., and STEVENS P.J.E.^[*]

MEMORANDUM

NICHOLS, J.

Appellant Damire Warren appeals from the order dismissing his timely first Post Conviction Relief Act^[1] (PCRA) petition. Appellant raises claims of ineffective assistance of trial counsel and appellate counsel, challenges the weight of the evidence, and argues that the PCRA court erred by denying his petition without a hearing. We affirm.

A previous panel of this Court summarized the factual and procedural history of this matter as follows:

On May 16, 2017, at approximately 8:00 p.m., Michael Hawkins (the victim) walked across the street from his home at 1916 South Beachwood Street to visit his neighbor, Frank Nino. The pair had only recently begun drinking cans of beer on the front steps of Nino's residence when Damire Warren (Appellant) approached them "mumbling stuff." The Appellant and [the victim] briefly exchanged words before the Appellant then walked towards a nearby pile of debris and picked up a wooden board (approximately four feet in length, two feet in width, and two inches thick). [The victim] and Nino had resumed talking with each another when the Appellant reapproached [the victim] from his left side and hit him in the face with the board. The blow was so forceful that it caused the board to break into two pieces.

[The victim] immediately stood up from the steps and chased after the Appellant, who had retreated behind a nearby van. As [the victim] walked around the back of the van, the Appellant threw the remaining piece of the board at him, again striking him in the head. The impact of the blow caused [the victim] to slip and fall to the ground, whereby the Appellant immediately stomped on the victim's head once with his foot. Nino testified that he witnessed the Appellant hit the victim in the head with the board the first time, and then witnessed the victim chase after the Appellant behind the van, but he was unable to view what occurred once the two were out of his line of sight. He further testified that [the victim] did not physically engage the Appellant prior to being hit. After the incident, he saw the Appellant retreat down the street.

Shortly thereafter, Nino's son drove [the victim] to the Veterans Administration [(VA)] Hospital for treatment. Detective Duffy took a statement from [the victim] and several photographs of his injuries. [The victim] initially received forty-seven facial stitches the night of the incident. He later had several surgeries (beginning a week later) inserting five facial plates, and some of his teeth were reattached. Moreover, his jaw was wired shut for approximately eight weeks, requiring him to consume food through a straw. Furthermore, the victim testified that he still had lingering numbness on the left side of his face at the time of trial, nine months after the incident.

At the conclusion of Appellant's February 16, 2018 bench trial, the [trial] court found Appellant guilty of aggravated assault [(graded as a felony of the first degree)], [possessing instruments of crime (PIC),] and [recklessly endangering another person (REAP)]. The court determined Appellant was not guilty of additional charges of terroristic threats and simple assault. The court ordered a presentence investigation and scheduled sentencing for April 17, 2018, aware that Appellant had a prior record score of five.

On April 17, 2018, the trial court sentenced Appellant to a term of five and a half to eleven years in prison for aggravated assault, followed by two years' probation for PIC. The court did not impose any additional sentence for REAP, . . .

Commonwealth v. Warren, 1446 EDA 2018, 2020 WL 974921, at *1-2 (Pa. Super. filed Feb. 28, 2020) (unpublished mem.) (citations omitted and formatting altered).

Jay Samuel Gottlieb, Esq. (trial counsel) represented Appellant at trial. Appellant did not file any post-sentence motions, but he filed a timely notice of appeal. Although Bobby Hoof, Esq. initially represented Appellant on direct appeal, the trial court subsequently granted Attorney Hoof's motion to withdraw and appointed Lawrence Bozzelli, Esq. on Appellant's behalf.^[2]

On direct appeal, Appellant challenged, among other things, the weight and sufficiency of the evidence and the grading of his aggravated assault conviction. Id. at *2. This Court determined that Appellant had waived his weight-of-the-evidence claim because he did not raise it prior to sentencing or in a post-sentence motion. Id. at *3. This Court also concluded that the evidence was sufficient to sustain Appellant's conviction for aggravated assault and that aggravated assault was properly graded as a felony of the first degree because the evidence established that "Appellant caused serious bodily injury to his victim[.]" Id. at *3, *5.

Further, this Court noted:

Appellant contends the victim claimed injuries but failed to produce medical records to prove the injuries. As counsel for both parties indicated at trial, their attempts to procure records from the Veterans Administration Hospital by subpoena and court order were unsuccessful. Regardless, the Commonwealth admitted a photograph of the victim taken by the investigating detective on the night of the assault. That photograph shows significant bruising and swelling on the left side of the victim's face. In addition, although medical records were not available, the victim credibly testified as to his injuries and the treatments he endured as a result of the assault.

Id. at *5 n.3 (citation omitted).

This Court affirmed Appellant's judgment of sentence on February 28, 2020. Appellant did not file a petition for allowance of appeal with our Supreme Court.

On October 30, 2020, Appellant filed a timely pro se PCRA petition. The PCRA court appointed PCRA counsel, who filed an amended petition and supporting memorandum of law on Appellant's behalf. Therein, Appellant argued that trial counsel was ineffective for failing to conduct an adequate pre-trial investigation, failing to object to an incorrect sentencing guidelines calculation, and failing to file a post-sentence motion. Am. PCRA Pet., 3/23/21, at 2 (unpaginated). Appellant also claimed that appellate counsel was ineffective for failing to seek reinstatement of Appellant's post-sentence rights nunc pro tunc and for failing to raise appropriate claims on appeal. Id. Lastly, Appellant asserted that his constitutional rights were violated by the introduction of hearsay evidence at trial, a conviction that was against the weight of the evidence, and the use of incorrect sentencing guidelines calculation at sentencing. Id.

On May 21, 2021, the PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss Appellant's PCRA petition without a hearing. Appellant did not file a response. The PCRA court dismissed Appellant's PCRA petition on June 23, 2021.

Appellant filed a timely notice of appeal. Although the PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant filed a Rule 1925(b) statement on July 26, 2022. The PCRA court issued an opinion addressing Appellant's claims.

Appellant raises the following issues for our review:

1. Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence was presented to establish that trial counsel was ineffective for failing to properly investigate and present available defense evidence and witnesses; failing to object to the application of the incorrect offense gravity and prior record scores at sentencing; and failing to file post-sentence motions to preserve appropriate issues for appeal.

2. Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence was presented to establish that appellate counsels were ineffective for failing to seek to reinstate post-sentence motions nunc pro tunc, and failing to raise appropriate claims on appeal.

3. Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence was presented to establish violations of appellant's constitutional rights under the United States and Pennsylvania Constitutions, including introduction of hearsay evidence, the application of the incorrect offense gravity and prior record scores at sentencing, and a guilty verdict that was against the weight of the evidence.

4. Whether the PCRA court erred by failing to grant an evidentiary hearing.

Appellant's Brief at 8.

Trial Counsel's Ineffectiveness

In his first issue, Appellant raises three claims concerning trial counsel's ineffectiveness. Specifically, Appellant argues that trial counsel failed to (1) conduct an adequate pre-trial investigation; (2) object to an incorrect sentencing guidelines calculation; and (3) file a post-sentence motion. Appellant's Brief at 14-18. We will address each of these claims separately.

Pre-Trial Investigation

Appellant claims that trial counsel was ineffective for failing to conduct an adequate pre-trial investigation. Id. at 14, 16-17. Specifically, Appellant argues that trial counsel failed to "obtain and present the comprehensive medical records from [the victim's] treatment at the VA hospital[,]" and failed to "present testimony from any of the medical professionals involved in [the victim's] medical treatment." Id. at 14. Appellant contends that if trial counsel presented the victim's medical records and called the treating medical professionals as witnesses, it would have...