J-S64018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

HAYDEN MARSHALL,

                         Appellant                  No. 329 WDA 2014


           Appeal from the PCRA Order Entered January 29, 2014
             In the Court of Common Pleas of Allegheny County
                         Criminal Division at No(s):
                          CP-02-CR-0000522-2005
                          CP-02-CR-0005039-2005


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED OCTOBER 10, 2014

      Appellant, Hayden Marshall, appeals from the court’s January 29, 2014

order denying his petition for relief filed pursuant to the Post Conviction

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

      Our Court previously summarized the facts and procedural history of

this case on direct appeal, as follows:

            The events giving rise to this appeal occurred during the
      early morning hours of December 5, 2004, when victims Maury
      Budd and Anthony Reeves were shot while sitting in Reeves’
      vehicle parked on Hamilton Avenue in the Homewood section of
      Pittsburgh. Although Budd recovered from his injuries, Reeves
      died later that morning. There were no eyewitnesses to the
      shooting, but Budd noticed a light colored Ford Bronco pull up
      across the street from Reeves’ vehicle just prior to the shooting.
      Budd also heard screeching tires after the shooting. The police
      responded quickly and observed a light colored Bronco traveling
      at a high rate of speed a short distance from the site of the
      shooting. Several police units pursued the Bronco into the
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     borough of Wilkinsburg, where the vehicle eventually came to a
     stop and the occupants, two African American males, fled.
     During the pursuit, the driver, later identified as [A]ppellant,
     discarded a camouflage jacket. Both the driver and passenger,
     later identified as co-defendant, Jesse William Thornton, eluded
     the police. The police recovered [A]ppellant’s latent fingerprints
     from above the exterior driver’s side door handle of the Bronco,
     and on one of three cell phones found in the pocket of the
     camouflage jacket. It was later determined that the Bronco
     belonged to codefendant Thornton’s father.

           Prior to trial, the police recorded a statement from
     Tomorra Williams, a friend of [A]ppellant[], who implicated
     [A]ppellant in the shooting. She told police that [A]ppellant had
     previously given her a gun to hide in her home, but that he and
     Thornton retrieved the gun on the night of the shooting and left
     her house in a light colored Bronco. She also stated that at
     approximately 3:00 a.m. she found both [A]ppellant and
     Thornton climbing through a window in her house. One of them
     told her that they had committed a murder. Her statement was
     corroborated in substantial measure by the testimony of
     Commonwealth witness, Devon Duell, who was present at
     Williams’ home on the day of the shooting.

            At trial, however, Ms. Williams changed her testimony,
     stating that Thornton had given the gun to her a month prior to
     the shooting. She further testified that she was at an after hours
     club in the early morning hours of December 5, 2004, and that
     she saw [A]ppellant at the club. Although she acknowledged that
     he had shown up at her house later that morning, she denied
     that he was nervous or that he had said he had shot someone.
     Finally, she claimed that she had told the police what they
     wanted to hear because they had threatened to arrest her and
     take her children from her.

           Neither [A]ppellant nor Thornton testified at trial.
     Appellant, however, presented the testimony of an alibi witness,
     Anthony Lee, who claimed that he was with [A]ppellant from the
     evening of December 4, 2004, until about 5:00 a.m. on the
     morning of December 5, 2004.2

            Following a six day consolidated jury trial, [A]ppellant was
     found guilty of murder of the first degree, attempted murder of
     the first degree, aggravated assault, possession of an instrument
     of crime, fleeing or attempting to elude a police officer, and


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     criminal conspiracy. The trial court granted a judgment of
     acquittal as to a firearms charge.      On January 30, 2008,
     [A]ppellant was sentenced to a term of life imprisonment for the
     murder conviction and a concurrent aggregate term of
     imprisonment of [] fifteen … to thirty years for the remaining
     convictions.

     _____________________
     2
      It bears mention that Mr. Lee disclosed the fact that he was a
     putative alibi witness for [A]ppellant only after he was
     approached by [A]ppellant’s counsel.

Commonwealth        v.   Marshall,   No.   457   WDA     2008,   unpublished

memorandum at 1-4 (Pa. Super. filed February 23, 2010).

     Appellant filed a timely direct appeal and, after this Court affirmed his

judgment of sentence, our Supreme Court denied his petition for allowance

of appeal.   Commonwealth v. Marshall, 996 A.2d 10 (Pa. Super. 2010)

(unpublished memorandum), appeal denied, 8 A.3d 898 (Pa. 2010).            On

October 18, 2011, Appellant filed a timely pro se PCRA petition.      Counsel

was appointed and an amended petition was filed on Appellant’s behalf.

Therein, Appellant argued that his appellate counsel was ineffective for not

challenging the sufficiency of the evidence on appeal.    He also contended

that his constitutional right to be tried by an impartial jury was violated

based on the following facts:

     [Appellant] alleges that during a recess in his trial he was
     apprised of information that Juror #3 on his jury had
     extrajudicial conversations with another county prisoner en route
     to the bullpen in the Courthouse. According to [Appellant], Juror
     #3 discussed the status of his case with this unknown inmate,
     and [Appellant] alleges that he discovered Juror #3 lived in the
     vicinity of where the killing he was tried for took place.
     [Appellant] alleges that he brought this information to the


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      attention of [his trial counsel], however, [his counsel] failed to
      do anything with the information.

Amended PCRA Petition, 11/1/13, at 8-9.

      On November 14, 2013, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss Appellant’s petition without a hearing.      The

court reasoned that Appellant’s ineffectiveness claim was meritless because

“[t]he underlying claim, that the evidence was not sufficient to support the

verdict, is wholly without merit, and counsel could not have [been]

ineffective for [not] pursuing a frivolous claim on appeal.” Notice of Intent

to Dismiss, 11/14/13, at 1.    In regard to Appellant’s remaining claim, the

court stated:

            [Appellant’s] claim that he did not receive a fair trial by an
      impartial jury based upon some alleged communication between
      juror number 3 and another county prisoner will be dismissed
      because [Appellant] has not provided any documentary proof
      that such a communication occurred, has not identified the
      prisoner who allegedly had communication with this juror, and
      has not set forth with any specificity what was allegedly said. It
      is [Appellant’s] obligation in a [PCRA] Petition to either point to
      the place in the record where there is factual support for his
      allegations or to supply documentary or other evidence in
      support of it. [Appellant] has done neither[.]

Id.

      On November 26, 2013, Appellant filed a response to the court’s Rule

907 notice, purportedly amending his claim regarding Juror #3. Specifically,

Appellant stated that his argument “concerns a potential connection or

familiarity between Juror #3 and the decedent, Anthony Reeves, because

there is reason to believe both lived in the North Side of Pittsburgh, thus



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making Juror #3 likely biased against [Appellant].” Response to 907 Notice,

11/26/13, at 2 (unnumbered). Appellant further alleged:

      Though, to date, [Appellant] has still been unable to provide
      specific information as to how he acquired information that Juror
      #3 was a biased juror (e.g., his sources’ names who knew of
      Juror #3), this highlights the exceptional need for limited
      discovery so [Appellant] may make out a more specific PCRA
      petition. At this point, [Appellant] cannot recall the names of
      the prisoners he met in the bullpen during his trial who provided
      the information about Juror #3, so he must necessarily inspect
      inmate transfer logs and jail records to proceed properly.

Id.

      The PCRA court issued an order on January 29, 2014, denying

Appellant’s petition for the reasons set forth in its Rule 907 notice. Appellant

filed a timely notice of appeal and raises the following two issues for our

review:

      I. Post-conviction discovery is permissible upon a showing of
      “exceptional circumstances.” Appellant complains that he was
      denied a fair trial by an impartial jury. Did the lower court abuse
      its discretion in refusing Appellant limited discovery to support
      his constitutional claim of error?

      II. Post-conviction claims may be dismissed without a hearing if
      there are no genuine issues of material fact, there is no
      entitlement to relief under the PCRA, and no purpose would be
      served by any further proceedings. Where Appellant raised
      factual issues that presented colorable claims, which the
      Commonwealth never disputed, did the lower court err in
      summarily dismissing Appellant’s post-conviction claims?

Appellant’s Brief at 4.

      We begin by noting that our standard of review regarding an order

denying post-conviction relief under the PCRA is whether the determination



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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).     The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record.   Commonwealth v. Carr,

768 A.2d 1164, 1166 (Pa. Super. 2001).

      In Appellant’s first issue, he argues that the PCRA court abused its

discretion in denying his request for ‘limited discovery’ to further develop his

claim that Juror #3 was biased.        Appellant claims that “post-conviction

discovery is permitted under ‘exceptional circumstances’” pursuant to

Pa.R.Crim.P. 902(E)(1) (“Except as provided in paragraph (E)(2) [(regarding

death penalty cases)], no discovery shall be permitted at any stage of the

proceedings, except upon leave of court after a showing of exceptional

circumstances.”). Appellant’s Brief at 13. Appellant argues that ‘exceptional

circumstances’ were present in this case because Appellant met a “nameless

defendant” while his trial was underway who informed Appellant that he

“was acquainted with Juror [#] 3” and who shared with Appellant

“information about Juror [#] 3’s personal connection with [Appellant’s]

case.”     Appellant’s Brief at 14.   Appellant does not detail what specific

information this ‘nameless defendant’ shared with him.




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      Appellant’s claim that the PCRA court abused its discretion fails for

several reasons.    First, because Appellant did not state in his amended

petition or response to the PCRA court’s Rule 907 notice (or even in the

instant appeal) precisely what information he received about Juror #3’s

connection with this case, his request for discovery appears to be a mere

fishing expedition. Therefore, the PCRA court did not err in concluding that

Appellant did not proffer ‘exceptional circumstances’ warranting post-

conviction discovery.

      Moreover, even if the PCRA court had granted Appellant’s discovery

request, and Appellant was able to establish that Juror #3 was biased,

Appellant has still failed to prove that he is entitled to PCRA relief in this

regard. To be eligible for post-conviction relief, the petitioner must “plead

and prove by a preponderance of the evidence” that “the allegation of error

has not been previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3). The

statute further declares that “an issue is waived if the petitioner could have

raised it but failed to do so before trial, at trial, during unitary review, on

appeal or in a prior state post[-]conviction proceeding.”        42 Pa.C.S. §

9544(b). Here, Appellant does not explain why he could not have asserted

Juror #3’s purported bias, and the alleged violation of his constitutional

rights, before this Court on direct appeal. Therefore, the PCRA court’s denial

of Appellant’s request for ‘limited discovery’ to further develop this otherwise

waived issue was not an abuse of discretion.




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      Similarly, we also ascertain no abuse of discretion in the PCRA court’s

decision to deny, without a hearing, Appellant’s assertion that his appellate

counsel was ineffective for not challenging the sufficiency of the evidence to

support Appellant’s convictions.         In his amended petition, Appellant

acknowledged that appellate counsel did not raise a sufficiency challenge

because “she believed it to have little chance for success.” Amended PCRA

Petition, 11/1/13, at 10. However, Appellant maintained that this decision

was error because, “to the extent there was any chance for success, failure

to raise the issue deprived [Appellant] of his right to have the [S]uperior

[C]ourt pass upon the issue.”     Id.     On appeal, Appellant reiterates this

argument, and also asserts that the PCRA court was required to hold an

evidentiary hearing because “[t]he Commonwealth never filed an answer to

dispute [Appellant’s] claim of error” regarding appellate counsel’s alleged

ineffectiveness.   Appellant’s   Brief   at   16.   Appellant   maintains   that

“[t]herefore, without dispute, [he] raised a colorable claim for relief that

implicated material facts warranting a hearing under Pennsylvania Rule of

Criminal Procedure 907.” Id.

      We disagree that the PCRA court erred by not conducting a hearing in

this case.

      [A] properly pled claim of ineffectiveness posits that: (1) the
      underlying legal issue has arguable merit; (2) counsel’s actions
      lacked an objective reasonable basis; and (3) actual prejudice
      befell the petitioner from counsel’s act or omission.




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Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).     Additionally, “[i]t is well-established that counsel may not be

deemed ineffective for failing to raise a meritless claim.” Commonwealth

v. Tarver, 420 A.2d 438, 438 (Pa. 1980).

        In Appellant’s amended PCRA petition, he made no attempt to argue

how the evidence was insufficient to support his convictions. 1          In other

words, while Appellant claimed that appellate counsel was ineffective for not

challenging the sufficiency of the evidence because there was a chance this

Court would find such a challenge meritorious, he does not explain any basis

on which we might have reached such a conclusion. Accordingly, Appellant

failed to raise “a genuine issue of fact which, if resolved in his favor, would

have entitled him to relief, or [show] that the court otherwise abused its

discretion in denying a hearing.” Commonwealth v. Paddy, 15 A.3d 431,

467 (Pa. 2011).

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2014
____________________________________________


1
    Appellant also presents no such discussion in his brief to this Court.



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