J-S06029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                   v.

ROBERT CARTER,

                        Appellant                   No. 1195 EDA 2016


           Appeal from the PCRA Order entered March 24, 2016,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0007203-2011.


BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY RANSOM, J.:                              FILED MAY 16, 2017

      Appellant, Robert Carter, appeals pro se from the March 24, 2016

order denying his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The pertinent facts and procedural history, as gleaned from our review

of the certified record, are as follows.   On April 5, 2011, police observed

Appellant operating a stolen car, activated their lights and sirens, and began

following the vehicle. Instead of pulling over, Appellant ran a stop sign and

accelerated.   A high speed-chase ensued, which ultimately ended when

Appellant hit another car and crashed into a building. Appellant’s passenger,

who was his good friend, was ejected upon impact and died at the scene.




*Former Justice specially assigned to the Superior Court.
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The person in the other car also suffered serious injury, as well as three

pedestrians who were standing on the sidewalk waiting for a bus.

       On February 13, 2013, a jury convicted Appellant of third-degree

murder, homicide by vehicle, and related charges. On April 19, 2013, the

trial court sentenced Appellant to an aggregate term of twenty-five to fifty

years of imprisonment.        Appellant filed a post-sentence motion, which the

trial court denied on August 6, 2013. Appellant timely filed an appeal to this

Court, in which he challenged the sufficiency and weight of the evidence

supporting his convictions, as well as a claim that the trial court abused its

discretion in allowing the Commonwealth to introduce evidence that, on

three prior occasions, he had fled from police while operating a motor

vehicle or ATV. In an unpublished memorandum filed on July 15, 2014, we

rejected Appellant’s claims and, therefore, affirmed his judgment of

sentence.     Commonwealth v. Carter, 105 A.3d 791 (Pa. Super. 2014)

(unpublished memorandum).

       Appellant timely filed a PCRA petition in which he raised certain claims

of ineffective assistance of trial counsel.      After a change of appointed-

counsel, PCRA counsel ultimately filed a “no-merit” letter and petition to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).1

____________________________________________


1
  Originally-appointed counsel filed a Turner/Finley letter, that the PCRA
court deemed inadequate.      The PCRA court permitted that counsel to
(Footnote Continued Next Page)


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On February 22, 2016, the PCRA court issued Pa.R.Crim.P. 907 notice of

intent to dismiss Appellant’s PCRA petition without a hearing. Appellant did

not file a response.        By order entered March 24, 2016, the PCRA court

dismissed Appellant’s PCRA petition.             This appeal follows.   Both Appellant

and the PCRA court have complied with Pa.R.A.P. 1925.

      Within his brief, Appellant asserts that the PCRA court erred in denying

his PCRA petition without first holding an evidentiary hearing because he

raised a genuine issue of material fact as to whether trial counsel was

ineffective for failing to: 1) object to the nolle prosequi of the involuntary

manslaughter charge and request that the jury be instructed on this lesser-

included offense; 2) investigate and present witnesses on his behalf; 3)

object to his removal from the courtroom without the trial court conducting a

colloquy to ensure that the waiver of his presence was knowing and

intelligent; 4) object to the autopsy report when the coroner who conducted

the autopsy did not testify at trial; 5) object when inadmissible hearsay was

introduced at trial and submitted to the jury to consider in establishing

malice; 6) object when evidence of prior bad acts was admitted where such

bad acts were actually dismissed and therefore inadmissible; and 7) to file a

pre-trial motion asserting the violation of his speedy trial rights.              See

Appellant’s Brief at 4. We will address these claims in the order presented.

                       _______________________
(Footnote Continued)

withdraw and appointed PCRA counsel. See PCRA Court Opinion, 6/20/16,
at 1-2.



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      When examining a post-conviction court's grant or denial of relief, we

are limited to determining whether the court's findings were supported by

the record and whether the court's order is otherwise free of legal error.

Commonwealth v. Quaranibal, 763 A.2d 941, 942 (Pa. Super. 2000). We

will not disturb findings that are supported in the record.      Id.   The PCRA

provides no absolute right to a hearing, and the post-conviction court may

elect to dismiss a petition after thoroughly reviewing the claims presented

and determining that they are utterly without support in the record. Id.

      Because Appellant’s claims challenge the stewardship of trial counsel,

we apply the following principles. The law presumes counsel has rendered

effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.

Super. 2010).      The burden of demonstrating ineffectiveness rests on

Appellant. Id. To satisfy this burden, Appellant must plead and prove by a

preponderance of the evidence that: “(1) his underlying claim is of arguable

merit; (2) the particular course of conduct pursued by counsel did not have

some reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonably probability that the outcome

of the challenged proceedings would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).




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      In assessing a claim of ineffectiveness, when it is clear that appellant

has failed to meet the prejudice prong, the court may dispose of the claim

on that basis alone, without a determination of whether the first two prongs

have been met.    Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.

1995). Counsel will not be deemed ineffective if any reasonable basis exists

for counsel's actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa.

1994). Even if counsel had no reasonable basis for the course of conduct

pursued, however, an appellant is not entitled to relief if he fails to

demonstrate the requisite prejudice which is necessary under Pennsylvania's

ineffectiveness standard. Douglas, 645 A.2d at 232.

      Appellant first claims that trial counsel was ineffective for failing to

object to the withdrawal of the involuntary manslaughter charge and for

failing to request that the jury be instructed on that crime because it is a

lesser included offense of homicide by vehicle.

      This Court has summarized:

            There is no requirement for the trial judge to instruct
         the jury pursuant to every request made to the court. In
         deciding whether a trial court erred in refusing to give a
         jury instruction, we must determine whether the court
         abused its discretion or committed an error of law.

            A defendant is entitled to a [jury] charge on a lesser-
         included offense only where the evidence has been made
         an issue in the case and the evidence would
         reasonably support such a verdict.            Instructions
         regarding matters which are not before the court or which
         are not supported by the evidence serve no purpose other
         than to confuse the jury.



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Commonwealth v. Phillips, 946 A.2d 103, 110 (Pa. Super. 2008)

(citations omitted). “An offense may be considered a lesser included offense

if each and every element of the lesser offense is necessarily an element of

the greater offense.”   Commonwealth v. Brandon, 79 A.3d 1192, 1194

(Pa. Super. 2013).

     Here, the PCRA court determined that the evidence presented would

not support an involuntary manslaughter conviction:

           In order to establish that [Appellant] was guilty of
        homicide by vehicle, the Commonwealth was required to
        prove that [he] caused the death of [the victim] by acting
        recklessly or with gross negligence, while violating any law
        or ordinance applying to the operation of a motor vehicle.
        75 Pa.C.S. § 3732; Commonwealth v. Pedota, 64 A.3d
        634 636 (Pa. Super. 2013). In order to establish that
        [Appellant] was guilty of involuntary manslaughter, the
        Commonwealth would have to prove that [he] caused the
        death of [the victim] by doing an act in a reckless or
        grossly negligent manner. 18 Pa.C.S. § 2504(a); Pedota,
        64 A.3d at 636. Therefore, homicide by vehicle includes all
        the elements of involuntary manslaughter, plus the
        additional requirement that the death was caused while
        violating the [Vehicle Code]. Accordingly, trial counsel
        would have been entitled to request that involuntary
        manslaughter be submitted to the jury if a reasonable
        juror could have found [Appellant] guilty of involuntary
        manslaughter but not guilty of homicide by vehicle.

           The evidence at trial, however, clearly established the
        contrary. In particular, there was overwhelming evidence
        that [Appellant’s] reckless and grossly negligent conduct
        consisted of multiple violations of the [Vehicle Code].

                                   ***

           [T]he evidence demonstrated that [Appellant] recklessly
        and with gross negligence caused [the victim’s] death by
        driving through a red light at a high rate of speed, thereby
        violating the laws applying to a motor vehicle. Because no

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         reasonable juror could have found [Appellant] guilty of
         involuntary manslaughter, but not guilty of homicide by
         vehicle, any request by trial counsel to submit the
         involuntary manslaughter charge to the jury would have
         been rejected.

PCRA Court Opinion, 6/20/16, at 6-7.

      Our review of the evidence presented at trial supports the PCRA

court’s conclusions. Trial counsel cannot be found ineffective for pursuing a

meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.

2003) (en banc). Thus, Appellant’s first issue fails.

      In his second issue, Appellant claims that trial counsel was ineffective

for failing to call the victim’s sister to testify on his behalf. See Appellant’s

Brief at 15. In order to establish that trial counsel was ineffective for failing

to investigate and/or call a witness at trial, a PCRA petitioner must

demonstrate that:

         (1) the witness existed; (2) the witness was available; (3)
         trial counsel was informed of the existence of the witness or
         should have known of the witness’s existence; (4) the
         witness was prepared to cooperate and would have testified
         on appellant’s behalf; and (5) the absence of the testimony
         prejudiced appellant.

Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005).

      During the final day of the proceedings, trial counsel informed the

court that she had been approached by members of the victim’s family, and

that the victim’s sister “has requested to testify during the trial regarding

the relationship between the two.”     N.T., 2/13/13, at 82.     The trial court

agreed   with   trial   counsel’s   assessment    that   such   testimony   was


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“inappropriate” and more relevant as a victim impact statement at

sentencing. Id. The trial court then informed the victim’s sister that she

had no relevant evidence for trial, but that she could testify at sentencing.

See id. at 83. Given these circumstances, the only Hall factor at issue is

whether the absence of testimony from the victim’s sister prejudiced

Appellant.    According to Appellant, “[h]ad the jury been provided the

opportunity to consider [his] friendship with the [victim] coming from a

victim herself, a reasonable probability exists that the results would have

been different.” Appellant’s Brief at 15.

      The PCRA court found no merit to Appellant’s claim:

            [A]ny evidence regarding [Appellant’s] relationship with
         the [victim] would have been irrelevant. The [victim] was
         a passenger in a car being recklessly driven by [Appellant]
         at the time of the crash that led to the charges in this
         case. There was never any contention that [Appellant]
         intended to harm the [victim]. Therefore, evidence of a
         close relationship between [Appellant] and the [victim]
         would not, in any manner, have refuted the
         Commonwealth’s case.

PCRA Court Opinion, 6/20/16, at 8. We agree. Moreover, after reading the

trial transcripts, it is clear that the jury was aware, via arguments made by

both the prosecutor and trial counsel, that Appellant and the victim were

good friends. See, e.g., N.T., 2/11/13, at 223 (in opening to the jury, the

prosecutor asserts the circumstances ultimately resulting in the victim’s

death “started out for [Appellant] and his friend as a joy ride in a stolen

vehicle”); N.T., 2/13/13 at 90 (in closing to the jury, trial counsel states that


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“two young guys out in a fancy Acura, driving around for a joy ride” ends up

in a tragic accident where “one of the people in the car, who is good friends

with [Appellant], is deceased”).   Once again, trial counsel cannot be faulted

for failing to pursue this meritless claim. Loner, supra.

      In his third issue, Appellant asserts that trial counsel was ineffective

for failing to object when he was removed from the courtroom without the

trial court first conducting a waiver colloquy.      We agree with the PCRA

court’s conclusion that this claim is waived because it does not appear in

Appellant’s pro se petition, or in a Pa.R.Crim.P. 907 response, and is thus

inappropriately raised for the first time on appeal. See generally, Pa.R.A.P.

302(a); Commonwealth v. Rigg, 84 A.3d 1080, 1084-85 (Pa. Super.

2014).   Appellant’s attempt to circumvent waiver by alleging a “layered

ineffectiveness claim” with regard to his first-court appointed post-conviction

counsel, see n.1, is unavailing. See Appellant’s Brief at 16. The fault for

failing to raise this claim via his original petition, or in response to the PCRA

court’s Pa.R.Crim.P. 907 notice, lies wholly upon Appellant himself.

      Moreover, Appellant’s claim is specious. A review of the record reveals

that the only reason no colloquy was conducted was because Appellant

refused to respond to the trial court’s attempt to provide him with one. See

N.T., 2/13/13, at 41-42.      Nevertheless, the record also establishes that

Appellant was moved to the back of the courtroom where he could hear the

proceedings, and that he decided to return to the courtroom prior to the




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court’s charge to the jury. See id., at 45-47; 142-143. Thus, Appellant’s

third issue fails.

      In his fourth issue, Appellant argues that trial counsel was ineffective

for failing to object to the admission of the autopsy report introduced

through the testimony of a forensic pathologist, because the report was

introduced to establish an element of the crimes charged, but the author of

the report did not testify.   According to Appellant, his inability to cross-

examine the coroner who conducted the autopsy violated his rights under

the Confrontation Clause of the Sixth Amendment to the U.S. Constitution.

See Appellant’s Brief at 17-19.

      The PCRA court found Appellant’s ineffectiveness claim to lack

arguable merit:

             Under Pennsylvania law, a medical examiner who did
          not perform the autopsy at issue in the case may still
          testify as to the cause and manner of death provided that
          the testifying expert is qualified and sufficiently informed
          so as to be able to render his or her own opinion.
          Commonwealth v. Buford, 101 A.3d 1182, 1198 (Pa.
          Super. 2014) (citing Commonwealth v. Ali, 10 A.3d 282,
          306-307 (Pa. 2010)). Here, Dr. Allison Hunt, performed
          [the victim’s] autopsy, but was no longer employed by the
          Philadelphia Medical Examiner’s Office by the time of
          [Appellant’s] trial. N.T., 2/13/13 at 55. As a result, Dr.
          Aaron Rosen reviewed Dr. Hunt’s report, as well as
          autopsy photos and toxicology reports. N.T., 2/13/13 at
          54-55. Dr. Rosen testified that, after reviewing these
          materials, he formed his own, independent opinions and
          conclusions regarding [the victim’s] death. N.T., 2/13/13
          at 55. Although Dr. Hunt’s report was reviewed by Dr.
          Rosen and admitted into evidence, Dr. Rosen never
          revealed any of Dr. Hunt’s opinions or conclusions and the
          report was never presented to the jury. Because Dr.

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         Rosen reached his own independent conclusions regarding
         cause and manner of death after reviewing the materials in
         the file, his opinions were properly admitted even though
         Dr. Hunt had performed the autopsy. Buford, 101 A.3d at
         1198.

PCRA Court’s Opinion, at 9-10. We agree with the PCRA court’s conclusions

that Appellant’s underlying claim regarding the autopsy report is meritless.

Thus, trial counsel cannot be deemed to be ineffective for failing to object to

this admissible evidence. Loner, supra.

      In his fifth issue, Appellant argues that trial counsel was ineffective for

failing to object when inadmissible hearsay was introduced to the jury to

consider in establishing malice. According to Appellant:

            [He] has a 5th Amendment Right to remain silent and
         not be a witness against himself. This right was stripped
         when the Commonwealth called Matthew Gavula to testify.
         Gavula testified to a statement purportedly made by
         Appellant which the jury was instructed to consider in
         determining the mens rea of Appellant on the most serious
         offense, third degree murder. Trial counsel failed to object
         and thus, prejudiced Appellant as he was convicted on
         inadmissible hearsay.

Appellant’s Brief at 19.

      Matthew Gavula was one of the first responders that spoke with

Appellant upon arriving at the crash scene. Mr. Gavula was the first witness

called by the Commonwealth and testified that when he asked Appellant

what happened, a “[t]ypical question on an accident scene,” Appellant

responded, “They were chasing me.”        N.T., 2/11/13, at 268.     Mr. Gavula

then asked Appellant to whom he was referring, and Appellant stated “[t]he



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police.” Id. Trial counsel did not object to this testimony, and she did not

question Mr. Gavula further regarding Appellant’s statement.

      The PCRA court found no merit to Appellant’s claim because Mr.

Gavula’s testimony was not inadmissible:

            Out-of-court statements made by a party offered
         against that party at trial are admissible under an
         exception to the hearsay rule. Pa.R.E. 803(25). As the
         statement at issue was made by [Appellant], and offered
         by the Commonwealth, its admission did not contravene
         the hearsay rule. Id.

PCRA Court Opinion, 6/20/16, at 10-11.        We agree with the PCRA court’s

conclusion. Appellant’s statement to Mr. Gavula qualified as an “admission

of a party opponent” under the exception to the hearsay rule. See Pa.R.E.

803(25); Commonwealth v. Weiss, 81 A.3d 767, 800 (Pa. 2013)

(explaining witness’s testimony that the defendant threatened to shoot the

police if they knocked at his door was admissible under Pa.R.E. 803(25)).

Thus, because trial counsel cannot be deemed ineffective for failing to raise

a meritless objection, Loner, supra, Appellant’s fifth issue fails.

      In his sixth issue, Appellant argues that trial counsel was ineffective

for failing to object to the Commonwealth’s admission of evidence of a prior

bad act committed by Appellant in 2007 because that proceeding was

dismissed in its entirety.   See Appellant’s Brief at 20.    Our review of the

record supports the PCRA court’s conclusion that this claim is waived

because it was not raised in Appellant’s pro se petition or in response to the

PCRA court’s Pa.R.Crim.P. 907 notice. See PCRA Court Opinion, 6/20/16, at

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11 (citing Rigg, supra).      Nevertheless, we note that this Court rejected

Appellant’s challenge to the admissibility of these prior incidents into

evidence. See Carter, supra, memorandum opinion at 10-13. Thus, the

claim has been previously litigated under the PCRA, see 42 Pa.C.S.A. §

9544(a), and Appellant’s sixth claim fails.

      In his final issue, Appellant asserts that trial counsel was ineffective for

failing to file a pretrial motion asserting that his right to a speedy trial under

Pa.R.Crim.P. 600 was violated.        Once again, our review of the record

supports the PCRA’s court’s conclusion that this claim was not preserved

below and, therefore, is inappropriately being raised for the first time on

appeal. See PCRA Court Opinion, 6/20/16, at 11 (citing Rigg, supra).

      In sum, Appellant’s seven claims of trial court’s ineffectiveness are

either without merit, refuted by the record, or waived. Thus, the PCRA court

did not err or abuse its discretion in failing to schedule an evidentiary

hearing. We therefore affirm the PCRA court’s order dismissing Appellant’s

PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2017


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