J-S13029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GARY SMITH                                 :
                                               :
                       Appellant               :   No. 1189 WDA 2018

               Appeal from the PCRA Order Entered June 19, 2018
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013605-2011


BEFORE:      BENDER, P.J.E., OTT, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 29, 2019

        Gary Smith appeals, pro se, from the order entered June 19, 2018, in

the Court of Common Pleas of Allegheny County, dismissing his first petition

for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

Smith seeks relief from the sentence of life imprisonment without the

possibility of parole, after the trial court convicted him of murder in the second

degree and related offenses. On appeal, Smith claims he received ineffective

assistance of all prior counsel, that the trial court abused its discretion, that

the prosecutor committed misconduct at trial, that he is actually innocent, and




____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.
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that his sentence is excessive and illegal. For the reasons discussed below,

we affirm.

     We take the underlying facts and procedural history in this matter from

this Court’s memorandum on direct appeal.

     Co–[d]efendant Eugene McMiller and this [d]efendant, Gary
     Smith, were accused of killing Justin Charles during a robbery on
     October 14, 2011[.] On that day, Michael Elko and Charles
     Coddington were at Mr. Elko’s home at 3103 Miles Street in
     C[l]airton. Both Mr. Elko and Mr. Coddington were admitted
     heroin users. A friend of the pair, Justin Charles, came to the
     home with two (2) African–American males, one of whom Mr. Elko
     later identified as [Smith]. Mr. Charles, also a heroin user, was
     trying to arrange a drug deal with the two (2) men. Mr. Charles
     asked to buy two (2) stamp bags of heroin from the men in order
     to sample what the men were selling and then offered that he
     would buy a bundle of stamp bags if he liked the first two (2). The
     men indicated that they did not have the drugs with them and
     would have to leave the house to go get the heroin. The men then
     left the house. Mr. Charles asked Mr. Elko if he would get some
     heroin for him in the meantime, and Mr. Elko left the house to do
     so.

     As Mr. Elko was walking in front of his house, he saw [McMiller]
     enter the front door of his home, and [Smith] entering the back
     door[.] Mr. Elko immediately returned to his home, entering the
     house shortly after [McMiller]. As he entered his home, Mr. Elko
     heard [Smith], who was in the kitchen, tell someone to lock the
     front door because there were police in the area. According to Mr.
     Elko, [McMiller] then pulled out a gun and demanded money from
     Justin Charles. Mr. Elko tried to give [McMiller] the $20 that Mr.
     Charles had given him to buy two (2) stamp bags, but [McMiller]
     did not even acknowledge the offer.

     [McMiller] threatened that, if Mr. Charles did not give him the
     money, he would give the gun to [Smith], who would use it.
     [McMiller] gave the gun to [Smith], and another demand for
     money was made. In response, Mr. Charles indicated that the
     money was upstairs. Mr. Elko stated that there was no money
     upstairs because Mr. Charles did not live in the home, and then
     the three (3) men walked up the stairs.

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     When the three (3) men began walking upstairs, Mr. Elko called
     911, and, during his report to the 911 operator, he heard shots
     coming from upstairs. Mr. Charles ran down the stairs, followed
     by [Smith] with the gun and then [McMiller]. As the three (3) ran
     toward the back door, there was another gunshot. After the
     shooting, Mr. Elko saw the two (2) African–American men jump
     over Mr. Charles and then run together behind some nearby
     buildings. Mr. Elko was in the back of the house with Mr. Charles
     when the paramedics arrived. Unfortunately, Mr. Charles was
     already dead by the time that the paramedics reached him.

     Mr. Elko described one of the men who entered his home that day
     to the 911 operator. He indicated that one of the men was a larger
     black man with a Muslim-style beard, meaning a beard that went
     from ear to ear, but with no mustache. Mr. Elko met with a
     detective from the Allegheny County Police, Homicide Unit, later
     that day and was presented with photographs of individuals who
     could have been in his home that day. Mr. Elko identified [Smith]
     as one of the men who came into his house, and as the man who
     was originally in the kitchen, when shown a photo array by
     Detective Hitchings of the Allegheny County police. Mr. Elko
     identified [Smith] in court as the man whose photo he selected in
     the photo array and as the man who was in his kitchen that day.

     The cases of [McMiller] (2011–13606) and [Smith] were originally
     joined. Counsel for [McMiller] filed a [m]otion for [s]everance
     pursuant to Rule of Criminal Procedure 583, stating that
     [McMiller’s] version of events was so antagonistic to [Smith’s]
     defense that it would be impossible for a trier-of-fact to believe
     both. Specifically, [McMiller] acknowledged in his [m]otion being
     present at Mr. Elko’s residence, with [Smith], at the time of the
     shooting. The court granted the severance motion on February
     16, 2012. While the cases were still joined, counsel for [Smith]
     filed a motion seeking to preclude the identification testimony of
     Mr. Charles Coddington, also an eyewitness to the events of
     October 14, 2011. [The trial court] granted the motion as to
     [Smith] on March 13, 2012. As such, the only person to present
     eyewitness testimony in this case was Mr. Elko.

Commonwealth v. Smith, 2015 WL 6750722 at **1-3 (Pa. Super. Jul. 21,

2015) (unpublished memorandum) (record citations omitted).


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       On July 21, 2015, this Court affirmed the judgment of sentence. Id. at

*1. On December 30, 2015, the Pennsylvania Supreme Court denied leave to

appeal. Commonwealth v. Smith, 130 A.3d 1289 (Pa. 2015).

       On December 8, 2016, Smith filed the instant, timely PCRA petition. On

December 14, 2016, the PCRA court appointed counsel, who moved to

withdraw on March 29, 2017.2 On May 31, 2017, the PCRA court issued a

Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition, and, ultimately

dismissed the petition and permitted counsel to withdraw on August 23, 2017.

       After continued correspondence from Smith, the court reopened the

case and, on December 4, 2017, Smith filed a voluminous amended PCRA

petition.   The Commonwealth filed an answer to the amended petition on

March 15, 2018. On April 4, 2018, Smith requested an extension of time to

file a response to the Commonwealth’s answer.        The PCRA court did not

respond to Smith’s request, and, without issuing a second Rule 907 notice,

dismissed the Amended PCRA petition on June 19, 2018.3 The instant, timely

appeal followed. In response to the trial court’s order, Smith filed a timely

ten-page “concise” statement of errors complained of on appeal on October

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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3Smith has not challenged the PCRA court’s dismissal of his amended petition
without first issuing a Rule 907 notice, thus he waived any objection to that
defect. See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).




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16, 2018.4     On October 25, 2018, the PCRA court issued an opinion.          On

November 20, 2018, Smith filed a nunc pro tunc motion for leave to amend

his Rule 1925(b) statement. The PCRA did not act on Smith’s request.

       The principles that guide our review are well settled. To be eligible for

relief pursuant to the PCRA, an appellant must establish that his conviction or

sentence resulted from one or more of the enumerated errors or defects found

in 42 Pa.C.S.A. § 9543(a)(2). He must also establish that the issues raised in

the PCRA petition have not been previously litigated or waived. 42 Pa.C.S.A.

§ 9543(a)(3). An allegation of error is waived “if the petitioner could have

raised it but failed to do so before trial, during unitary review, on appeal or in

a prior state post conviction proceeding.”       42 Pa.C.S.A. § 9544(b).      Our

standard of review for an order denying PCRA relief is as follows:

              This Court’s standard of review regarding a PCRA court’s
       order is whether the determination of the PCRA court is supported
       by the evidence of record and is free of legal error. Great
       deference is granted to the findings of the PCRA court, and these
       findings will not be disturbed unless they have no support in the
       certified record. Moreover, a PCRA court may decline to hold a
       hearing on the petition if the PCRA court determines that a
       petitioner’s claim is patently frivolous and is without a trace of
       support in either the record or from other evidence.
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4 Smith’s 10-page 8-issue Rule 1925(b) statement is not in compliance with
Pennsylvania Rule of Appellate Procedure 1925(b)(4). See Commonwealth
v. Vurimindi, 200 A.3d 394, 1031, 1040-1041 (Pa. Super. 2018). This Court
would be well within our rights to dismiss the appeal on this basis. However,
because the PCRA court was able to address Smith’s issues and because it
does not appear that Smith acted in bad faith, we will address the issues he
raised on appeal. See id. at 1043 (holding defendant waived all issues on
appeal by filing prolix Rule 1925(b) statement where PCRA court determined
that he deliberately raised outrageous number of issues).

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Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).

      In his first issue, Smith claims that he received ineffective assistance of

trial, direct appeal, and PCRA counsel. Smith’s Brief, at 7-14. Initially, we

note that, because of the scattershot nature of Smith’s brief, it is exceedingly

difficult to parse the specifics of his claims. However, it appears that he claims

that trial counsel was ineffective for coercing him into waiving his right to a

jury trial (Smith’s Brief, at 7-8), and for failing to investigate and call proposed

alibi witness Lolita Page (id. at 8-10). Smith claims that direct appeal counsel

was ineffective for: (1) not raising the ineffectiveness of trial counsel on direct

appeal; (2) not raising the issue of a violation of the Confrontation Clause of

the United States Constitution because Smith could not confront McMiller, his

co-defendant; (3) not raising the issue that he was actually innocent of

robbery; and (4) not raising the issue that the trial court wrongly admitted

identification testimony. Id. at 10-12. Lastly, Smith avers that PCRA counsel

failed to conduct a proper review of his proposed claims and should have filed

an amended PCRA petition. Id. at 12-14. However, Smith has waived the

majority of these claims.

      Our standard of review is long settled:

      With respect to claims of ineffective assistance of counsel, counsel
      is presumed to be effective, and the petitioner bears the burden
      of proving to the contrary. To prevail, the petitioner must plead
      and prove, by a preponderance of the evidence, the following
      three elements: (1) the underlying claim has arguable merit; (2)
      counsel had no reasonable basis for his or her action or inaction;

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      and (3) the petitioner suffered prejudice as a result of counsel’s
      action or inaction. With regard to the second prong (reasonable
      basis), we do not question whether there were other more logical
      courses of action which counsel could have pursued; rather, we
      must examine whether counsel’s decisions had any reasonable
      basis. We will hold that counsel’s strategy lacked a reasonable
      basis only if the petitioner proves that a foregone alternative
      offered a potential for success substantially greater than the
      course actually pursued. Our review of counsel’s performance
      must be highly deferential.       To establish the third element
      (prejudice), the petitioner must show that there is a reasonable
      probability that the outcome of the proceedings would have been
      different but for counsel’s action or inaction.

      Because a petitioner’s failure to satisfy any of the above-
      mentioned elements is dispositive of the entire claim, [a] court is
      not required to analyze the elements of an ineffectiveness claim
      in any particular order of priority; instead, if a claim fails under
      any necessary element of the ineffectiveness test, the court may
      proceed to that element first.

Commonwealth v. Brown, 196 A.3d 130, 150-151 (Pa. 2018) (citations,

internal citations, and quotation marks omitted).

      Here, Smith did not raise his claims that trial counsel was ineffective for

coercing him into waiving his right to a jury trial, as well as all his claims

regarding ineffective assistance of direct appeal and PCRA counsel in his Rule

1925(b) statement.     See Statement of Errors Complained of on Appeal,

10/16/2018, at unnumbered pages 1-10. As amended in 2007, Pennsylvania

Rule of Appellate Procedure 1925 provides that issues that are not included in

the Rule 1925(b) statement or raised in accordance with Rule 1925(b)(4) are

waived. See Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v.

Heggins, 809 A.2d 908, 911 (Pa. Super. 2011), appeal denied, 827 A.2d 430

(Pa. 2003) (“[A Rule 1925(b)] [s]tatement which is too vague to allow the



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court to identify the issues raised on appeal is the functional equivalent to no

[c]oncise [s]tatement at all.”); Commonwealth v. Lord, 719 A.2d 306, 308

(Pa.    1998),    superseded    by   rule   on   other   grounds   as    stated   in

Commonwealth v. Burton, 973 A.2d 428, 431 (Pa. Super. 2009). Thus,

Smith waived these claims.

        Smith’s only remaining claim of ineffective assistance of counsel is that

trial counsel was ineffective for failing to call proposed alibi witness Lolita

Page.

        To prove that trial counsel provided ineffective assistance for
        failing to call a witness, a petitioner must demonstrate:

               (1) the witness existed; (2) the witness was available
               to testify for the defense; (3) counsel knew of, or
               should have known of, the existence of the witness;
               (4) the witness was willing to testify for the defense;
               and (5) the absence of the testimony of the witness
               was so prejudicial as to have denied the defendant a
               fair trial.

Brown, supra at 167 (citation omitted).

        Here, Smith did not attach any witness certification from Lolita Page to

either his PCRA or amended PCRA petitions, did not delineate the specifics of

her testimony, did not state that she would testify at a PCRA hearing, and did

not indicate that she was ready and willing to testify at trial. It is also unclear

if Smith ever informed trial counsel of her existence. These omissions are

fatal to his claim. See Pa.R.Crim.P. 902(A)(15); Brown, supra. Smith’s first

claim fails.



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       In his second claim, Smith alleges that the trial court committed

numerous errors in its rulings throughout the trial process.5        Specifically,

Smith contends that the trial court’s rulings were not impartial because it also

heard McMiller’s case. Smith’s Brief, at 14-17. In his third issue, Smith claims

the prosecutor committed misconduct by making several false statements to

the trial court.6 Id. at 17-18. However, Smith waived these claims. See 42

Pa.C.S.A. § 9544(b) (“For purposes of this subchapter, 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 postconviction

proceeding.”).      We note that, generally, claims of trial court error and

prosecutorial misconduct, other than those enumerated in 42 Pa.C.S.A. §

9543(a)(2)(i-viii), are not cognizable under the PCRA. Here, Smith could have

raised his claims of trial court bias and prosecutorial misconduct on direct

appeal, but he failed to do so.         Accordingly, we need not address Smith’s

second and third arguments further.7

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5 Smith’s second claim is a direct claim of trial court error, which he raises
independently of his claims of ineffective assistance of counsel. See Smith’s
Brief, at 14-17.

6Again, this a direct claim of prosecutorial misconduct, raised separate and
apart from Smith’s claim of ineffective assistance of counsel. See Smith’s
Brief, at 17-18.

7 We note, moreover, that Smith did not raise his second and third claims in
his Rule 1925(b) statement and he waived them for that reason as well. See
Pa.R.A.P. 1925(b)(4)(vii).



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       In his fourth claim, Smith seems to challenge both the weight and

sufficiency of the evidence, claiming he is actually innocent of the crimes.

Smith’s Brief, at 18-21.8 However, to the extent that Smith alleges that the

evidence was not sufficient to sustain his conviction; the claim is again waived

because it was not presented on direct appeal. See 42 Pa.C.S.A. § 9544(b).

To the extent that Smith is challenging the weight of the evidence, that issue

was previously litigated (and rejected) on direct appeal. See Smith, supra,

2015 WL 6750722, at **5-6. See also Commonwealth v. Spotz, 47 A.3d

63, 101 (Pa. 2012) (issue previously litigated is not cognizable under PCRA).

Thus, Smith’s fourth claim fails.

       In his fifth and final claim, Smith challenges both the discretionary

aspects and legality of his sentence. Smith’s Brief, at 21-22. To the extent

that Smith challenges the discretionary aspects of his sentence, we conclude

this issue is waived as such a claim is not cognizable under the PCRA. See 42

Pa.C.S.A. § 9543(a)(2)(i-viii).9        Accordingly, this argument fails and/or is

waived.



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8 Like Smith’s second and third claims, his fourth claim is a direct challenge to
the weight and sufficiency of the evidence, made separately from his
ineffective assistance of counsel claims. See Smith’s Brief, at 18-21.

9 It is not clear whether Smith is challenging just the discretionary aspects of
the sentence for robbery, or the entire sentence. We note that the record
reflects that the trial court sentenced Smith to second-degree murder, which
carries a mandatory life sentence. Thus, it could not impose any other
sentence for that conviction.

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      Smith also purports to challenge the legality of his sentence, a claim

that is cognizable under the PCRA.       See 42 Pa.C.S.A. § 9543(a)(2)(vii).

However, our review of Smith’s brief demonstrates that his challenge to the

legality of his sentence for robbery is merely a reiteration of his claim that the

evidence was not sufficient to sustain his conviction, a claim we have already

disposed of. Thus, Smith’s final claim fails.

      Because we have concluded that all of the issues raised in Smith’s

appellate brief were either previously litigated, waived, or lacking in merit, we

conclude the PCRA court did not err in dismissing Smith’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/2019




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