J-S25005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

DONZIE DEVERO,

                        Appellant                  No. 2143 EDA 2016


            Appeal from the PCRA Order Entered June 6, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0002797-2007


BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                        FILED JUNE 06, 2017

     Appellant, Donzie Devero, appeals from the post-conviction court’s

June 6, 2016 order denying his petition under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

     The facts of Appellant’s underlying convictions are unnecessary to our

disposition of his appeal.   We need only note that he was charged with

burglary in four different cases, which were ultimately disposed of in two

separate trials in September and November of 2009.

           During these trials, Appellant represented himself with
     court approval and the assistance of a court-appointed public
     defender. See Trial Court Opinion, 3/13/12, at 1.

            At Appellant’s first trial commencing on September 1,
     2009, the jury convicted him of burglarizing Alicia Carranco’s
     home on North 3rd Street in Philadelphia. Appellant’s second
     trial began on November 17, 2009, and at the close thereof, the
     jury found him guilty of committing burglaries at three different
     residences in Philadelphia.1 On January 15, 2010, Appellant was
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      sentenced in all four cases to an aggregate term of 15 to 30
      years’ imprisonment. He filed a timely pro se notice of appeal
      and, after conducting a hearing in accordance with
      Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the trial
      court granted him permission to proceed pro se [on appeal].
         1
          The jury acquitted Appellant of the burglary of a fourth
         home on East Comly Street in Philadelphia.

Commonwealth v. Devero, No. 407 EDA 2010, unpublished memorandum

at 1-2 (Pa. Super. filed February 15, 2013).

      On direct appeal, this Court affirmed two of Appellant’s burglary

convictions, but vacated his third, concluding that the evidence was

insufficient to sustain that conviction. See id. at 10-11. We did not remand

for resentencing, as our disposition did not upset the court’s overall

sentencing scheme. Id. at 14. Appellant did not file a petition for allowance

of appeal.

      Instead, on January 6, 2014, Appellant filed a pro se PCRA petition, as

well as a pro se amended petition on July 14, 2014. Counsel was appointed,

and he filed another amended petition on Appellant’s behalf on February 27,

2015. On May 3, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss Appellant’s petition. Appellant did not respond, and on

June 6, 2016, the court issued an order dismissing his petition. Appellant

filed a timely notice of appeal, as well as a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.       Herein, he presents two

issues for our review:

      I. Whether the court erred in denying [] Appellant’s PCRA
      petition without an evidentiary hearing on the issues raised in


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      the amended PCRA              petition     regarding       trial   counsel’s
      ineffectiveness[?]

      II. Whether the court erred in not granting relief on the PCRA
      petition alleging counsel was ineffective[?]

Appellant’s Brief at 9.

      Preliminarily, a discussion of Appellant’s first issue will be subsumed

within our assessment of his second claim, in which he presents the

following four assertions of trial counsel’s ineffectiveness:

      A. Trial counsel was ineffective for failing to object to the trial
      court’s deficient oral colloquy of [] Appellant’s waiver of his Fifth
      Amendment right to counsel.

      B. Trial counsel was ineffective for failing to object to the Judge’s
      request for counsel to cross-examine the fingerprint expert.

      C. Trial [c]ounsel was ineffective for failing to object to the
      Judge’s answering of the jury’s questions without Appellant’s
      presence.

      D. Counsel was ineffective for failing to object to the Judge’s
      answering of the jury questions.

Appellant’s Brief at 23, 26, 28, 30 (emphasis omitted).

      Our standard of review regarding an order denying post-conviction

relief under the PCRA is whether the determination of the court is supported

by the evidence of record and is free of legal error.             Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). 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. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001).

Additionally, it is well-settled that,



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      [t]o prove counsel's ineffectiveness, [an] appellant must
      demonstrate: (1) the underlying claim is of arguable merit; (2)
      counsel's performance lacked a reasonable basis; and (3) the
      ineffectiveness     of  counsel    caused     him     prejudice.
      Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213
      (2001). Failure to address any prong of the test will defeat an
      ineffectiveness claim. Commonwealth v. Basemore, 560 Pa.
      258, 744 A.2d 717, 738 n. 23 (2000).

Commonwealth v. Williams, 899 A.2d 1060, 1063 (Pa. 2006).

      In Appellant’s first claim of counsel’s ineffectiveness, he argues that

his trial attorney (who represented him until he was granted leave to

proceed pro se) rendered deficient representation during the oral colloquy of

Appellant regarding his waiver of the right to counsel. Appellant maintains

that counsel should have asked that he be questioned further about his

mental health issues, especially after the following exchange between

Appellant and the Commonwealth revealed that Appellant suffered from

mental illness:

      [The Commonwealth]: Are you currently under the influence of
      drugs or alcohol?

      [Appellant]: No, sir.

      [The Commonwealth]: Have you ever been treated for mental
      illness?

      [Appellant]: Yes, sir.

      [The Commonwealth]: Does that currently impair your abilities?

      [Appellant]: No, sir.

      [The Commonwealth]:        Are    you   currently   receiving   any
      psychiatric care?

      [Appellant]: No, not at this time.




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N.T. Hearing, 5/19/09, at 11.           Trial counsel did not ask for further

exploration into Appellant’s mental health, and the court ultimately allowed

Appellant to proceed pro se at trial.

      In Appellant’s pro se PCRA petition, and in his pro se amendment

thereto, he averred that his mental illness impacted his ability to waive his

right to counsel and, thus, his trial counsel should have sought further

inquiry about his mental health.    More specifically, Appellant asserted that

he had been diagnosed with paranoid schizophrenia, and that “he [has] the

tendency to lapse [into a] severe state of deep depression, which cause[s]

him to hullucinate [sic] and hear voices.”            Appellant’s “Supplement

Amendment to Brief,” 7/14/14, at 3. He also alleged that at the time of the

colloquy, he was in a “delusional state” such that he could not understand

the decision to waive his right to counsel.     Id.   Appellant maintained that

“[r]ecords from the county prison medical department” (which he stated he

would subpoena “upon [the] appointment of PCRA counsel”) would “verify

that [he] was being prescribed a range of medications including but not

limited to thorazine, singequan [sic] …, and/or Benadryl through all phases

of his trial process, including the colloquy and Grazier hearing.” Appellant’s

Brief in Support of PCRA Petition, 1/6/14, at 4.

      However, the PCRA court apparently did not consider the factual

assertions, presented in Appellant’s pro se petitions, regarding his mental

illness. Instead, the court only assessed the claims and allegations set forth

in Appellant’s February 27, 2015 counseled, amended petition (and an

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affidavit drafted by Appellant attached thereto). The PCRA court reasoned

that “[o]ur courts have strongly suggested that an amended PCRA petition

supersedes a preceding pro se one.” PCO at 4 (citing Commonwealth v.

Renchenski, 52 A.3d 251, 258, 259 (Pa. 2012) (stating that, “at the time a

[PCRA] court is considering ‘the petition,’ the document at issue is most

often the amended petition, as a pro se petitioner is entitled to file an

amended first petition once counsel is appointed[;]” and also noting that, “in

the usual case, the amended petition - rather than the original petition - sets

forth the claims that a petitioner must prove and upon which the PCRA court

may grant relief”)).   The PCRA court then concluded that Appellant had

failed to plead sufficient facts to demonstrate that, at the time of the oral

colloquy, he was suffering from a mental illness that impaired his ability to

waive his right to counsel. The court explained that “[n]either [Appellant]

nor   counsel   mentioned   [Appellant’s   mental   health]   history   in   their

submissions [to the PCRA court,] nor made any attempt to document a

mental condition, or in any way demonstrate, or even mention, its extent, of

what it consisted[,] nor what affects it had on [Appellant’s] rationality at the

time of the waiver hearing and trials.” Id. at 13. The court also stressed

that Appellant’s statements at the colloquy indicated that his mental health

issues were not impacting his abilities. See id. at 15. Therefore, the court

found that Appellant had failed to plead sufficient facts to show that he was

prejudiced by counsel’s failure to demand further inquiry into his mental

health.

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      Now, on appeal, Appellant’s counsel presents no challenge to the

court’s decision not to consider the factual claims presented in Appellant’s

pro se filings. Additionally, in Appellant’s Rule 1925(b) statement, counsel

referred only to the amended petition, stating: “The court was in error in

denying the amended PCRA filed by PCRA counsel on February 27,

2015 and developed in the amended PCRA.                 These issues in the

amended PCRA were the following[,]” after which counsel stated the

four ineffectiveness claims set forth, supra.   Pa.R.A.P. 1925(b) Statement,

8/17/16, at 1 (emphasis added). Based on PCRA counsel’s failure to raise

any challenge to the PCRA court’s decision to only consider the counseled,

amended petition, as well as counsel’s framing of the issues in Appellant’s

Rule 1925(b) statement, we cannot address whether the PCRA court erred

by ignoring the factual allegations presented by Appellant in his pro se

filings. See Commonwealth v. D’Amato, 856 A.2d 806, 814 (Pa. 2004)

(finding the appellant waived a claim where it was “so undeveloped that it

[was] the functional equivalent of no argument at all”); see also Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”).

      Restricting our review to the claims presented in counsel’s amended

PCRA petition, we are compelled to agree with the PCRA court that Appellant

failed to plead sufficient facts to support his claim that trial counsel was

ineffective by not requesting further colloquy into Appellant’s mental health.

In the amended petition, counsel stated, in pertinent part:

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      [Trial] counsel should have asked the court during the colloquy
      to question [Appellant] regarding his mental health history. That
      would have indicated that [Appellant] was unable to fully
      comprehend the situation of proceeding without counsel.

             The first prong of the [ineffectiveness] test is whether …
      trial counsel’s failure to correct the colloquy has merit. In this
      case, the prong is met.

            The second prong of the [ineffectiveness] test is whether
      there was a “reasonable basis” to justify counsel’s alleged
      ineffectiveness. In this case, there was no basis not to correct
      the colloquy.

            The third prong is whether [Appellant] has suffered actual
      prejudice as a result of counsel’s ineffectiveness. In this case,
      there is a clear showing of actual prejudice as a result of
      counsel’s ineffectiveness. Had [Appellant] been given a correct
      colloquy, he would have proceeded with counsel. Thus, it is
      evidence that actual prejudice resulted from counsel’s
      ineffectiveness.

Amended PCRA Petition, 2/27/15, at 17-17 (citations omitted). Counsel also

attached to this petition an affidavit from Appellant in which Appellant

referred to his “disability” and “mental affirmity [sic],” but he did not

elaborate on the specifics of his mental health issues. See id. at Appendix

A.

      Based on the undeveloped assertions in Appellant’s amended petition,

we must agree with the PCRA court that he did not plead sufficient facts to

support that, at the time of the colloquy, he was suffering from a mental

health issue that impaired his ability to validly waive his right to counsel. At

the time of the oral colloquy, Appellant stated he was not on medication, he

was not receiving psychiatric care, and his mental health issues were not

impacting his decision to waive his right to counsel. Without at least some



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description by Appellant, in his amended PCRA petition, of what his mental

health issues were at the time of the waiver colloquy, and how they

impacted his ability to waive his right to counsel, he simply cannot

demonstrate that he was prejudiced by trial counsel’s failure to demand

further colloquy regarding his mental health.               Accordingly, the PCRA court

did   not    err   in   rejecting   Appellant’s     first    claim   of   trial   counsel’s

ineffectiveness.

      Appellant’s       remaining   three    claims    of     ineffectiveness     are   also

meritless.    Essentially, Appellant contends that his standby counsel was

ineffective for: (1) failing to object when the trial court instructed standby

counsel to cross-examine an expert witness, (2) failing to object to the trial

court’s answering a question from the jury when Appellant was allegedly not

present in the courtroom, and (3) failing to object to the content of the

court’s answer to the question by the jury. Our Supreme Court has declared

that “the law is clear that a defendant who chooses to represent himself has

no    recourse     if    he   or    standby       counsel      has   been     ineffective.”

Commonwealth v. Fletcher, 986 A.2d 759, 778 (Pa. 2009) (emphasis

added); see also Commonwealth v. Spotz, 47 A.3d 63, 83 (Pa. 2012)

(clarifying that “the appointment of standby counsel does not imply or

authorize some sort of hybrid representation[,]” and reiterating Fletcher’s

holding that “a defendant who chooses to represent himself cannot obtain

relief by raising a claim of ineffectiveness of counsel or standby counsel”)

(emphasis in original).        Because Appellant chose to waive his right to

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counsel and proceed pro se, he cannot now claim that his standby counsel

rendered ineffective representation.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2017




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