OPINION BY BOWES
Ernest W. Rykard, appellant, pro se. Craig W. Stedman, Assistant District Attorney, Lancaster, for Commonwealth, appellee.
BEFORE: BOWES, LAZARUS, and COLVILLE, JJ.
OPINION BY BOWES, J.:
Ernest Wesley Rykard appeals pro se from the May 27, 2011 order dismissing his petition for post-conviction relief. Following a remand to determine the status of PCRA counsel, we affirm.
We previously delineated the history of this case as follows.
A jury convicted Appellant of felony murder due to his role in the execution-style killing of Shawn Hutchinson. The underlying facts involve a plan by Appellant and several cohorts to rob Mr. Hutchinson of two eight balls of crack cocaine. Specifically, on November 29, 2006, Appellant, Jacquin Carr, Barbara Hamm, and Lizyvette Rosario–Casanova were smoking crack cocaine.1 As the group began to run low on the drug, they hatched a plan to rob someone to attain more drugs. They then encountered another individual, Rachel Rakita, who informed Appellant, Mr. Carr, and Ms. Rosario–Casanova that she could acquire more cocaine. Ms. Rakita placed a telephone call to Shawn Hutchinson and agreed to purchase two eight balls of crack cocaine from him. The group then drove to Hutchinson's apartment.
The group, except for Ms. Hamm, agreed that Ms. Rakita would lure Hutchinson outside so that they could rob him.2 Once the victim was outside, Appellant and Mr. Carr seized the victim and Ms. Rakita returned to the vehicle. Mr. Carr held the victim's arms behind his back while Appellant held a silver small caliber handgun on the victim and searched him for the drugs. Ms. Rosario–Casanova ultimately removed an eight ball from the victim's back pocket. She then walked back toward the car and prevented Ms. Rakita from attempting to drive away. Mr. Carr remained behind holding the victim down while Appellant pointed the firearm at his head. Appellant then fired a shot into the victim's head, and he and Mr. Carr returned to the vehicle. Afterward, the group traveled to Appellant's sister's home where they proceeded to smoke the stolen crack cocaine. While at his sister's house, Appellant informed his nephews that he believed he killed somebody and showed them a bullet casing. After smoking crack, Appellant and Ms. Rosario–Casanova travelled to another house, where Appellant displayed the gun. Ms. Rosario–Casanova began to play with the weapon and caused it to jam. A short while later, Appellant disposed of the gun. Thereafter, police stopped Appellant and Ms. Rosario–Casanova, and Ms. Rosario–Casanova was arrested and taken into custody. Police did not arrest Appellant at that time.
The Commonwealth later arrested and charged Appellant with criminal homicide, robbery, and conspiracy to commit robbery. Following a jury trial wherein the Commonwealth tried Appellant and Mr. Carr jointly, the jury convicted Appellant of one count of felony murder.3 The court sentenced Appellant to the mandatory term of life imprisonment. Appellant filed post-sentence motions, which the court denied. Thereafter, Appellant neglected to file a timely direct appeal, but filed a motion to reinstate his direct appeal rights nunc pro tunc. The trial court granted that request, and Appellant filed his direct appeal. This Court affirmed, Commonwealth v. Rykard, 976 A.2d 1214 (Pa.Super.2009) (unpublished memorandum), and the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal on November 30, 2009. Commonwealth v. Rykard , 985 A.2d 219 (Pa.2009).
Appellant timely filed a pro se post-conviction petition on October 25, 2010. The PCRA court appointed counsel and directed that he file an amended petition within forty-five days. Counsel, however, petitioned to withdraw and filed a no-merit letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa.1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super.1988) (“ Turner/Finley ”), addressing the issues Appellant submitted in his pro se petition and an additional issue raised by Appellant at a meeting he had with counsel. Additionally, counsel averred that he could not find any other issues of merit. The PCRA court agreed with counsel's assessment and issued a notice of intent to dismiss on December 27, 2010. Appellant, pro se, filed a petition for transcripts and a stay of proceedings to allow him to respond.4 The court delayed issuing its final order and Appellant, after the lapse of the one-year jurisdictional time-bar, responded to the notice of dismissal on May 23, 2011. In his response, Appellant advanced ineffective assistance of PCRA counsel claims and several other issues not expressed in his original pro se petition. Thereafter, the court dismissed Appellant's petition. This appeal ensued. The PCRA court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and he complied.
Commonwealth v. Rykard, 50 A.3d 235 (Pa.Super.2012) (unpublished memorandum) (filed May 7, 2012).
Although it appeared that the PCRA court allowed counsel to withdraw, no order was contained within the record expressly authorizing counsel's withdrawal. Accordingly, out of an abundance of caution, we remanded to the PCRA court for a determination as to counsel's current status in this case, but retained jurisdiction. The PCRA court conducted a hearing as directed. However, at the conclusion of that hearing it appointed new counsel for the purpose of filing a new amended PCRA petition. This Court voided that order as exceeding the scope of our limited remand and the PCRA court has indicated that Turner/Finley counsel was permitted to withdraw. The matter is now ready for review. Appellant raises five issues for our consideration.
The record also refers to Ms. Rosario–Casanova as Rosario–Casanovo.
Instantly, Appellant's claims were neither waived nor previously litigated. It would be logically impossible for Appellant to have argued the ineffective assistance of his post-conviction attorney in his pro se petition as he had not yet been appointed PCRA counsel. In addition, since petitioners are not authorized to pursue hybrid representation and counsel cannot allege his own ineffectiveness, claims of PCRA counsel ineffectiveness cannot ordinarily be raised in the state post-conviction proceeding below. As Appellant's post-conviction matter was his first and was not complete when he filed his response to the PCRA court's pre-dismissal notice, there was no completed prior post-conviction proceeding. Furthermore, only after counsel sought to withdraw was Appellant able to allege that his PCRA attorney was ineffective. Therefore, the rationale behind Lawson is not present where a defendant is raising, in a first-time PCRA proceeding at the PCRA court level, PCRA counsel's ineffectiveness.
In truth, the concern of Lawson and the principal case it relied upon, Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981) (plurality), was with multiple post-conviction proceedings. The plurality in Alexander posited, “the PCHA explicitly contemplates a single post-conviction proceeding in no uncertain terms.” Alexander, supra at 184. It specifically commented that allowing claims cloaked under ineffective assistance of counsel language “would further the proliferation of needless and wasteful multiple post-conviction proceedings.” Id. at 185 (emphasis added). However, the plurality reasoned that “if the ineffectiveness standard is to have any substance at all, it was necessary ... to provide ... at least one meaningful opportunity to have the underlying issues reviewed, at least in the context of an ineffectiveness claim.” Id. at 186. In sum, the Lawson Court was not distressed with the submission of multiple petitions during an initial collateral attack. Although Lawson was handed down prior to the passage of the jurisdictional time-bar, the legislature, in crafting the one-year time limitation, adopted the “second or subsequent petition” language of Lawson and therefore its legally-understood meaning at that time. Both the criminal rules of procedure and the Lawson decision primarily reflect a concern over serial PCRA proceedings instituted by second or subsequent petitions.
It is evident that the original meaning of the “second or subsequent petition” language in the PCRA, at the time of its adoption, did not include a response to a notice of intent to dismiss. It is only as a result of Pitts that defendants were compelled to raise new PCRA counsel ineffectiveness claims in response to a notice of intent to dismiss. Simply put, the General Assembly did not intend for the “second or subsequent” provision of the PCRA to apply to a response to a Rule 907 notice of intent to dismiss. Indeed, such a conclusion would be logically untenable as invariably, in the vast majority of cases, the permitted response would be filed after the one-year time deadline.
When the legislature amended the PCRA statute to include the “second or subsequent petition” language, defendants could raise PCRA claims of ineffectiveness for the first time while on appeal. Commonwealth v. Albert, 522 Pa. 331, 561 A.2d 736 (1989).
Defendants who submit untimely petitions, which are frequently disposed of without a hearing and require a notice of intent to dismiss, still are permitted to file a response to a notice of dismissal.
The purpose behind a Rule 907 pre-dismissal notice is to allow a petitioner an opportunity to seek leave to amend his petition and correct any material defects, see Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517, 526 (2001), the ultimate goal being to permit merits review by the PCRA court of potentially arguable claims. The response is an opportunity for a petitioner and/or his counsel to object to the dismissal and alert the PCRA court of a perceived error, permitting the court to “discern the potential for amendment.” Id. at 527. The response is not itself a petition and the law still requires leave of court to submit an amended petition. SeePa.R.Crim.P. 905(A). Hence, we conclude that a response to a notice of intent to dismiss is not a second or subsequent petition. Since Appellant's response is not a second petition subject to the PCRA time-bar, and he objected to PCRA counsel's effectiveness at the PCRA level, we may proceed to analyze his arguments. Compare Ford, supra.
This does not mean that a defendant may raise entirely new claims that he could have presented prior to his response to the notice of intent to dismiss. We discuss this issue in relation to Appellant's final two claims.
Appellant first posits that PCRA counsel was ineffective in failing to investigate, raise and address all of the issues presented in his pro se PCRA petition and failing to independently review the record for additional claims. To plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act. Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127 (2011). Where the defendant asserts a layered ineffectiveness claim he must properly argue each prong of the three-prong ineffectiveness test for each separate attorney. Id. at 1128;see also Commonwealth v. Reyes, 582 Pa. 317, 870 A.2d 888 (2005); Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (2003).
Layered claims of ineffectiveness “are not wholly distinct from the underlying claims[,]” because “proof of the underlying claim is an essential element of the derivative ineffectiveness claim[.]” Collins, supra at 584 (Saylor, J. concurring); Reyes, supra at 896 (proving three prong ineffectiveness test for trial counsel establishes arguable merit to appellate counsel's ineffectiveness). “In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel. If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue.” Burkett, supra at 1270.
Appellant argues that Pa.R.Crim.P. 904, relating to the appointment of PCRA counsel, “includes the concomitant right to effective assistance of counsel.” Appellant's brief at 11. Without citation to the record or pertinent authority, Appellant merely repeats his issue statement. The Commonwealth, for its part, relies on its argument relative to Appellant's first issue and submits that the record amply demonstrates that counsel properly addressed the claims Appellant raised in his pro se petition as well as one additional contention that was not set forth therein. We find that Appellant has waived his issue by neglecting to present appropriate argument and citation on appeal. See Paddy, supra at 448. Additionally, he has failed to establish his burden of proving ineffective assistance of counsel. Finally, we conclude that his position is meritless for the reasons outlined in our discussion of his first issue.
We further note that our Supreme Court has held that the Turner/ Finley cases do not require “counsel launch into an extra-record investigation of every claim raised by a PCRA petitioner on collateral attack.” Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 895 (1999).
Appellant also alleges PCRA counsel was ineffective in failing to assert trial counsel's ineffectiveness for neglecting to raise and preserve an alleged Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) violation. According to Appellant, Lizyvette Rosario–Casanova, Rachel Rakita and Barbara Hamm all had tacit agreements with the Commonwealth in exchange for their testimony, which the Commonwealth failed to disclose. Since Appellant has not forwarded any argument with regard to Ms. Rosario–Casanova, that aspect of his issue is waived. With respect to Barbara Hamm, Appellant argues that Ms. Hamm was arrested on December 6, 2005 in relation to this matter. When police apprehended her, they discovered a crack pipe in her possession. Appellant contends that the jury was entitled to hear that Ms. Hamm received a probationary sentence for possession of drug paraphernalia in exchange for her testimony.
Regarding Rachel Rakita, he maintains that although she testified that she did not expect any leniency in relation to her own charges arising out of the incident in this case, “she was rewarded by being permitted to plead guilty to third degree murder and received a sentence of six (6) to twelve (12) years for her role in the instant felony murder.” Appellant's brief at 14. Appellant posits that the concurring decision of Justice Papadakos in Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), lends credence to his position that the witness would not have testified “without any indication of leniency[.]” Appellant's brief at 14.
Public docket sheets indicate Ms. Rakita did, in fact, plead guilty to third degree murder in exchange for a sentence of six to twelve years and charges of robbery and criminal conspiracy were nolle prossed.
In Evans, the majority remanded for a new trial after the trial court limited the cross-examination of a testifying co-defendant in a homicide trial and did not allow defense counsel to explore whether the witness had been promised or expected leniency in numerous unrelated criminal matters in exchange for his testimony. In his concurring decision, Justice Papadakos expressed concern over possible prosecutorial misconduct writing:
The chief prosecution witness, David Crater, who was also a principal in the felony murder, testified that he had no expectations, and that no promises of leniency had been made to him by the District Attorney in exchange for his testimony. The District Attorney remained silent as to any “deal” that may have been made with the witness for his testimony, thus indicating to the jury that none had been made. Notwithstanding the fact that in addition to the criminal homicide, robbery and criminal conspiracy charges in the instant case, he also had ten to fifteen other burglary, theft and criminal conspiracy charges pending against him before the same District Attorney, to all of which he had pled not guilty. On the burglary charges alone, he could conceivably have received sentences totaling one hundred fifty years.
However, after he testified in the instant action against his co-conspirators, he was “rewarded” by being permitted to change his plea from not guilty to the charge of criminal homicide to a plea of guilty to third degree murder. He received a sentence of six (6) to twelve (12) years for his role in the instant felony murder. He was also permitted to change his plea to guilty on all the other pending charges and received a total sentence of two (2) to four (4) years for all those charges, to run consecutive to the Ritchie sentence. I find this not infrequent practice of district attorneys sitting back and remaining silent while their witnesses perjure themselves appalling. Such reprehensible conduct should not be tolerated by our courts.
I cannot bring myself to believe that this self-confessed conspirator in a killing and this perpetrator of many burglaries, “saw the light” and confessed his crimes without any indication of leniency from the Office of the District Attorney which would prosecute him after he testified against Nolen and Evans. What happened at Crater's trial and sentencing reeks of a “deal” having been made in exchange for his testimony against Nolen and Evans.
Id. at 633 (Papadakos, J. concurring) (emphasis in original).
The Commonwealth counters that Appellant's issue is waived because he neglected to raise it in his initial pro se petition. Appellant could not have alleged that PCRA counsel was ineffective in his pro se petition, as the court had not yet appointed him PCRA counsel. Furthermore, as discussed supra, Appellant followed the procedure outlined by the Pitts Court to preserve this issue and the claim is not being raised for the first time on appeal. Thus, we find the Commonwealth's argument in this regard unavailing. The Commonwealth, however, also maintains that PCRA counsel cannot be held ineffective for declining to address an issue that Appellant never brought to his attention and was not apparent from the record. Lastly, the Commonwealth posits that Appellant has merely made boilerplate assertions of ineffectiveness without developing any meaningful argument in support of his positions.
Public records indicate that Ms. Hamm was arrested on December 5, 2005 for an ungraded misdemeanor possession of drug paraphernalia and subsequently pled guilty almost a year prior to Appellant's trial. We fail to discern how there could be a reasonable probability that this would have affected Appellant's trial. Even absent Ms. Hamm's testimony, there was additional testimony implicating Appellant that was both consistent and cumulative of Ms. Hamm's testimony. Appellant's issue in this respect fails.
With relation to Ms. Rakita, contrary to Appellant's representation, Ms. Rakita testified, in response to Appellant's co-defendant's counsel's questioning, that although she did not have a formalized deal with the district attorney, she did expect to receive consideration and a benefit for testifying. N.T., 3/6/08, at 696. She also remarked that she was testifying to better her position. Id. at 697. In fact, the Commonwealth elicited testimony from Ms. Rakita that she was testifying to help herself. Id. at 714. Therefore, the jury was clearly apprised of Ms. Rakita's motive for testifying and Appellant's issue is meritless.
In addition to his claims of PCRA counsel ineffectiveness, in his response to the PCRA court's notice of dismissal, Appellant added two new assertions of trial counsel ineffectiveness. Those issues are his fourth and fifth positions leveled in this appeal. We have previously discussed that a response to a notice of intent to dismiss is not, itself, considered a serial petition. In Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167 (1999), the Court reasoned that the raising of a new (non-PCRA counsel ineffectiveness) claim after the PCRA court issued a notice of dismissal still requires a PCRA court to grant the petitioner leave to amend his petition. Notably, the Court opined, “The assertion of a new claim after the court has heard argument and indicated its intent to dismiss the petition militates in favor of the decision to deny leave to amend.” Id. at 1191.
While Appellant was explicitly instructed that he could respond, and by law is authorized to file a response to the court's pre-dismissal notice, both Williams, 732 A.2d at 1191, and Pa.R.Crim.P. 905, suggest that in order to properly aver a new non-PCRA counsel ineffectiveness claim, the petitioner must seek leave to amend his petition. See also Paddy, supra; Commonwealth v. Porter, ––– Pa. ––––, 35 A.3d 4, 12 (2012) (“amendment is permitted only by direction or leave of the PCRA court.”); Commonwealth v. D'Amato, 579 Pa. 490, 856 A.2d 806, 825 n. 19 (2004); Derrickson, supra at 469. Having not sought permission to amend his petition to raise these new claims, the PCRA court was not required to address the issues and it did not. Hence, Appellant's final two claims do not entitle him to relief. Williams, 732 A.2d at 1191.
Order affirmed. Judge COLVILLE files a Concurring Opinion.
CONCURRING OPINION BY COLVILLE, J.:
I agree with the Majority's conclusion that the PCRA court and PCRA counsel complied with the Turner/Finley requirements. Regarding Appellant's claims that PCRA counsel rendered ineffective assistance of counsel, I would find that he preserved these claims for appellate review by presenting them in his response to the PCRA court's notice of its intent to dismiss Appellant's petition without holding an evidentiary hearing. Commonwealth v. Pitts, 603 Pa. 1, 981 A.2d 875, 880 n. 4 (2009). I concur with the Majority's conclusion that these claims, as well as Appellant's claims regarding trial counsel's stewardship, do not entitle him to relief. Thus, I, too, would affirm the order dismissing Appellant's PCRA petition.
-------- Notes: