J-S32008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

MARTHA FENCHAK BELL

                         Appellant                   No. 620 WDA 2013


                Appeal from the PCRA Order March 14, 2014
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0005045-2004


BEFORE: PANELLA, J., DONOHUE, J., and ALLEN, J.

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 5, 2014

      Appellant, Martha Fenchak Bell, appeals from the denial of post-

conviction relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-9546, (PCRA) entered on March 14, 2013, by the Honorable David R.

Cashman, Court of Common Pleas of Allegheny County. We affirm.

      As we write exclusively for the parties, who are familiar with the

factual context and legal history of this case, we set forth only so much of

the procedural history as is necessary to our analysis.

      Bell was convicted on February 8, 2007, of one count each of the

following crimes in connection with the death of Mabel Taylor: (1)

involuntary manslaughter, (2) neglect of a care-dependent person, (3)

recklessly endangering another person, and (4) criminal conspiracy. Bell was

then sentenced on February 12, 2007, to 22-44 months’ imprisonment.
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During the sentencing hearing, the prosecution asked for clarification on

whether the sentence was consecutive to the federal sentence Bell was

already serving. The sentencing court confirmed that the sentence would be

consecutive to the federal sentence. However, when the sentencing court

entered the sentencing order it neglected to write that the sentence would

be served consecutively to the federal sentence. This error was corrected in

the written sentencing order on February 2, 2009, when the sentencing

court amended the written order to show that the sentence was to be served

consecutively to the federal convictions.

      Bell appealed to this Court, and we affirmed in a memorandum

decision filled on April 7, 2010. The Supreme Court of Pennsylvania denied

allocator on December 1, 2010. Thereafter, Bell filed a timely PCRA petition.

The PCRA court held a hearing on Bell’s PCRA petition and subsequently

entered an order denying relief on March 14, 2013. Bell then filled this

timely appeal.

      On appeal, Bell raises five issues for our review:

      I.     Whether the trial court lacked authority to modify the
             terms of the written judgment of sentence where there
             was no clear clerical error in the sentence and whether Ms.
             Bell’s right to due process was violated when the effective
             date of the sentence was changed to Ms. Bell’s detriment?
      II.    Whether the Commonwealth waived the right to challenge
             the sentence as expressed in the written sentencing order?
      III.   Whether the PCRA court erred in not finding appellate
             counsel was ineffective for failing to object to the sentence
             modification?
      IV.    Whether trial counsel was ineffective for failing to make
             the argument after trial that the Pennsylvania conviction

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            was barred by 18 P.S. 111 which protects the right not to
            be tried twice based on operative facts that substantially
            overlap a related federal prosecution which resulted in
            conviction and substantial sentence?
      V.    Whether trial counsel and appellate counsel were
            ineffective for not objecting to violation of the
            confrontations clause of the sixth amendment to the
            constitution based on admission of nurse Galati’s
            confession implicating herself and Martha bell in violation
            of the Bruton rule?

   Appellant’s Brief, at 2.

      Our standard of review regarding a PCRA court's denial of a petition for

post-conviction relief is well settled. We examine whether the determination

of the PCRA court is supported by the evidence of record and is free of legal

error. See Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010).

The PCRA court's findings will not be disturbed unless there is no support for

the findings in the certified record. See id. Our scope of review is limited to

the   findings   of   the   PCRA   court   and   the   evidence   of   record.   See

Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010).

      The first three issues on appeal all focus on the February 2, 2009

modification of the sentencing order by Judge Cashman. “It is well-settled in

Pennsylvania that a trial court has the inherent, common-law authority to

correct “clear clerical errors” in its orders.” Commonwealth v. Borrin, 12

A.3d 456, 471 (Pa. Super. 2011) (en banc). This authority is maintained by

the trial court even beyond the thirty day time period established in 42

Pa.C.S.A. § 5505. See id. A “clear clerical error” exists only where the trial

court’s intent to impose a certain sentence is clearly and unambiguously

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declared during the sentencing hearing. See id. Conversely, where such

stated intention is ambiguous, the terms of the written sentencing order

must control and the trial court does not have inherent power to correct its

mistake. See id.

      In the instant case, the trial court clearly and unambiguously stated its

intent that the sentence would run consecutive to any federal sentence

during the sentencing proceeding. The following exchange occurred between

the judge and prosecutor:

      Mr. Merrick: Your Honor, while we’re still on the record with
      respect to this, I take it—I’m taking it from our discussion of the
      law in chambers that it would be deemed consecutive to any
      other sentence she would be serving?

      The court: Based upon the case law, it is.

      Mr. Merrick: Yes, Sir.

      The court: Okay.

N.T., Sentencing, 02/12/07, at 16.          In light of this, it was within the trial

court’s power to modify the sentencing order to reflect its clear intent.

Therefore, Bell’s first claim must fail.

      Bell’s second claim is that the Commonwealth waived the right to

challenge the sentence as expressed in the written sentencing order. We find

that this claim is waived for a lack of support. “It is the Appellant who has

the burden of establishing his entitlement to relief by showing that the ruling

of   the   trial   court   is   erroneous   under   the   evidence   or   the   law.”

Commonwealth v. Brewer, 876 A.2d 1029, 1035 (Pa. Super 2005)

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(quoting Miller v. Miller, 744 A.2d 778, 788 (Pa. Super. 1999)). Therefore,

where the appellant cites no authority to support its claim, the claim is

waived. See id.

      Here, Bell develops this claim in only two sentences—and without

citing a single authority. We find this claim waived.

      Bell next argues trial counsel’s ineffective assistance for not objecting

to the modification of the sentencing order. Counsel is presumed effective,

and   an   appellant   bears   the   burden    of   proving   otherwise.   See

Commonwealth v. Steele, 961 A.2d 215, 223 (Pa. 2007).

      To prevail on his ineffectiveness claims, Appellant must plead
      and prove, by a preponderance of the evidence, three elements:
      (1) the underlying legal claim has arguable merit; (2) counsel
      had no reasonable basis for his action or inaction; and (3)
      Appellant suffered prejudice because of counsel’s action or
      inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).

“A failure to satisfy any prong of the test for ineffectiveness will require

rejection of the claim.” Commonwealth v. Morrison, 878 A.2d 102, 105

(Pa. Super. 2005) (citation omitted). Counsel cannot be deemed ineffective

for failing to raise a meritless claim. See Commonwealth v. Fears, 86

A.3d 795, 803 (Pa. 2014).

      Here, Bell’s claim of ineffective assistance of counsel fails because the

underlying claim is without merit. As noted, the trial court acted within its

authority to correct a “clear clerical error” in the sentencing order, to ensure

that it reflected the unambiguous intent expressed by the trial court during

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the sentencing hearing. Since counsel cannot be deemed ineffective for

failing to raise a non-meritorious claim, Bell’s contention that counsel was

ineffective fails.

        In the fourth issue on appeal, Bell raises another ineffective assistance

of counsel claim. She maintains that his trial counsel was ineffective for

failing to make the argument that the Pennsylvania conviction was barred by

18 Pa.C.S.A. § 111. We need not delve very far into this issue as Bell’s

contention is patently false. Her counsel filed a motion to dismiss the

proceedings pursuant to 18 Pa.C.S.A. § 111. See Motion to Dismiss

Proceeding Pursuant to 18 Pa. C.S.A. § 111, 10/5/07.

        Lastly, Bell asserts that trial and appellate counsel were ineffective for

failing to object to a violation of the Confrontation Clause of the Sixth

Amendment. Here, Bell asserts that trial and appellate counsel’s failure to

argue that the admission of Nurse Kathleen Galati’s statements implicating

Bell violated the Confrontation Clause and were analogous to a Bruton1

claim. In Bruton, the Supreme Court of the United States held that the

rights of an accused are violated, pursuant to the Confrontation Clause,

when a non-testifying co-defendant’s confession naming the accused as a

participant in the crime is introduced at their joint trial. See 391 U.S. at

136-7. Bell claims that the statements made by Galati were “crucial to the

____________________________________________


1
    Bruton v. United States, 391 U.S. 123 (1968).



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prosecution because they were used to inflame the passions and prejudices

of the jury and prove an essential element of a charged offense by improper

means.” Appellant’s Brief at 23.

        Here, this claim must fail for lack of merit. Galati was not tried along

with Bell in a joint trial; Galati entered a plea to one count of perjury

following Bell’s conviction (and was subsequently sentenced to a period of

five years’ probation). See Commonwealth v. Bell, 1460 and 1461 WDA

2007,     at   8-9   n.1   (Pa.   Super.,   filed   April   7,   2010)   (unpublished

memorandum). “It is the particularly “devastating” prejudicial effect and

inherent “unreliability” of a directly incriminating statement made by a non-

testifying co-defendant that powered Bruton's exception to the general

rule that cautionary charges are enough to avoid spillover prejudice in joint

trials.” Commonwealth v. McCrae, 832 A.2d 1026, 1038 (Pa. 2003)

(citation omitted; emphasis in original). Bruton simply does not apply here

as Galati was not a co-defendant. See id. (Bruton inapplicable to

statements made by an individual other than a non-testifying codefendant).

See also United States v. Artis, 917 F.Supp. 347, 349 (E.D. Pa. 1996).

        What Bell is attempting in this appeal is, in actuality, a thinly veiled

attempt to re-litigate a previous claim. While an ineffectiveness claim is

distinct from its underlying claim, it may fail for the same reason the

underlying claim failed on direct appeal. See Commonwealth v. Collins,

888 A.2d 564, 573-74 (Pa. 2005). Here, the underlying claim that Galati’s


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testimony was a violation of the Confrontation Clause was raised in the

direct appeal to this Court, which ruled in a memorandum decision that it

was without merit. See Bell, 1460 and 1461 WDA 2007, at 15-20.

Therefore, this claim fails.

      None of the issues complained of by Bell merit relief from this Court.

Therefore, we affirm the PCRA court’s denial of relief.

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2014




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