J. S71013/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
JAMAR LASHAWN TRAVILLION,              :           No. 73 WDA 2015
                                       :
                       Appellant       :


               Appeal from the PCRA Order, January 8, 2015,
             in the Court of Common Pleas of Allegheny County
            Criminal Division at Nos. CP-02-CR-0003767-2003,
            CP-02-CR-0007963-2003, CP-02-CR-0008353-2003


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED MARCH 10, 2016

     Jamar Lashawn Travillion appeals from the order entered in the Court

of Common Pleas of Allegheny County that dismissed his petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

(“PCRA”).

     The PCRA court set forth the procedural history of this case as follows:

                  On February 26, 2006, [appellant] was found
            guilty of the charges of second degree murder,
            robbery, criminal attempt to commit criminal
            homicide, aggravated assault, two counts of violation
            of the Uniform Firearms Act, and one count of
            possession of a small amount of a controlled
            substance. A presentence report was ordered in aid
            of sentencing and [appellant] was sentenced on
            May 15, 2006, to the mandatory life without parole
            for the conviction of second degree murder and a
            consecutive sentence of one hundred eight to two
            hundred sixteen months for his conviction of the
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          charge of robbery and a consecutive sentence of
          twelve to twenty-four months for his conviction of
          possessing a firearm without a license. [Appellant]
          did not file either post-sentencing motions or a direct
          appeal to the Superior Court.

                 On April 2, 2007, his appellate counsel filed a
          petition for post-conviction relief requesting that his
          appellate rights be reinstated. On June 4, 2007, this
          Court entered an order granting the reinstatement of
          his appellate rights and [appellant’s] appellate
          counsel filed post-sentencing motions on June 15,
          2007. On August 29, 2007, a hearing was held on
          those motions and an Order was entered on
          January 31,      2008    denying      those    motions.
          [Appellant] filed an appeal from the denial of his
          post-sentencing motions and was directed to file a
          concise statement of matters complained of on
          appeal pursuant to Pennsylvania Rule of Appellate
          Procedure 1925(b).       In that concise statement,
          [appellant] suggested that there were four claims of
          error. Initially, [appellant] maintained that he was
          denied his right to counsel under the United States
          and Pennsylvania Constitutions.        [Appellant] also
          maintained he was denied his right to testify at the
          time of his trial. [Appellant] also suggested that this
          Court erred when it denied his motion to suppress
          the evidence seized by the Ross Township Police, the
          identification made of him by one of the victims and
          his inculpatory statements made to the investigating
          homicide detectives. Finally, [appellant] contended
          that this Court intimidated one of his witnesses
          thereby causing that witness to refuse to testify.

                This Court filed its 1925(b) Opinion and
          addressed all of the claims of error raised by
          [appellant’s] appellate counsel, Thomas Farrell.
          Although Farrell alleged four claims of error in his
          statement of matters complained of on appeal, his
          appellate brief only addressed one issue, that being
          [appellant’s] claim that he was denied his right to
          counsel. Following the decision by the Pennsylvania
          Supreme Court in Commonwealth v. Luccarelli,
          601 Pa. 185, 971 A.2d 1173 (2009), this Court


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           filed an addendum Opinion in which it maintained
           that [appellant] had forfeited his right to counsel as
           a result of his extremely dilatory conduct and
           obstructive behavior. On October 13, 2010, the
           Superior Court vacated [appellant’s] sentences and
           remanded his cases [sic] for the purpose of a new
           trial. The Commonwealth filed an application for
           allowance of appeal to the Pennsylvania Supreme
           Court and Farrell responded to that application with
           a no answer letter.        On April 29, 2011, the
           Pennsylvania Supreme Court issued an Order
           reversing the Superior Court’s disposition of
           [appellant’s] appeal and reinstated the judgment of
           sentence imposed on the basis of its decision in
           Commonwealth v. Luccarelli, supra. Farrell filed
           an application for reargument with the Pennsylvania
           Supreme Court, which was denied on July 6, 2011.

                  On June 14, 2012, [appellant] filed a pro se
           petition for post-conviction relief and this Court
           appointed his current counsel, Robert S. Carey, to
           represent him in connection with that petition and to
           file an amended petition for post-conviction relief,
           which was done.          A hearing was held on
           November 14, 2014, at which time [appellant]
           presented the testimony of his former counsel,
           Farrell. On January 8, 2015, this Court entered an
           Order      denying     [appellant’s]    petition    for
           post-conviction relief from which he has taken the
           instant timely appeal. [Appellant] was required to
           file a concise statement of matters complained of on
           appeal and in complying with that directive, he has
           asserted two claims of error, the first being that his
           former appellate counsel was ineffective for failing to
           file a response to the Commonwealth’s application
           for allowance of appeal to the Pennsylvania Supreme
           Court and, second, that his former appellate counsel
           was also ineffective for failing to address all of the
           issues that he originally raised in his statement of
           matters complained of on appeal.

PCRA court opinion, 3/10/15 at 2-4.

     Appellant raises the following issues on appeal:


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               1.         Whether the [PCRA] court erred in finding that
                          appellate counsel was effective when the
                          record establishes that Attorney Farrell had no
                          reasonable strategic basis for failing to file a
                          response to the Commonwealth’s Petition for
                          Allowance of Appeal and, based on counsel’s
                          omission, the Supreme Court reinstated
                          [appellant’s] judgment of sentence?

               2.         Whether the [PCRA] court erred in finding
                          appellate counsel effective where the record
                          shows that Attorney Farrell waived winning
                          claims when he failed to brief meritorious
                          issues that were previously identified in the
                          Rule 1925 statement?

Appellant’s brief at 3.

      In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed    in        the     light   most   favorable   to   the   prevailing   party.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.              Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).            We defer to the PCRA court’s factual findings and

credibility determinations supported by the record.               Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).                   In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

      Appellant’s issues assert ineffective assistance of appellate counsel.

               In evaluating claims of ineffective assistance of
               counsel, we presume that counsel is effective.
               Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
               435, 441 (Pa. 1999).         To overcome this


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          presumption, Appellant must establish three factors.
          First, that the underlying claim has arguable merit.
          See Commonwealth v. Travaglia, 541 Pa. 108,
          661 A.2d 352, 356 (Pa. 1995). Second, that counsel
          had no reasonable basis for his action or inaction.
          Id. In determining whether counsel’s action was
          reasonable, 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.       See Rollins, 738 A.2d at 441;
          Commonwealth v. (Charles) Pierce, 515 Pa. 153,
          527 A.2d 973, 975 (Pa. 1987). Finally, “Appellant
          must establish that he has been prejudiced by
          counsel’s ineffectiveness; in order to meet this
          burden, he must show that ‘but for the act or
          omission in question, the outcome of the proceedings
          would have been different.’” See Rollins, 738 A.2d
          at 441 (quoting Travaglia, 661 A.2d at 357). A
          claim of ineffectiveness may be denied by a showing
          that the petitioner’s evidence fails to meet any of
          these prongs.       Commonwealth v. (Michael)
          Pierce, 567 Pa. 186, 786 A.2d 203, 221-22 (Pa.
          2001); Commonwealth v. Basemore, 560 Pa. 258,
          744     A.2d    717,    738      n.23    (Pa.    2000);
          Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d
          693, 701 (Pa. 1998) (“If it is clear that Appellant has
          not demonstrated that counsel’s act or omission
          adversely affected the outcome of the proceedings,
          the claim may be dismissed on that basis alone and
          the court need not first determine whether the first
          and second prongs have been met.”). In the context
          of a PCRA proceeding, Appellant must establish that
          the ineffective assistance of counsel was of the type
          “which, in the circumstances of the particular case,
          so undermined the truth-determining process that no
          reliable adjudication of guilt [or] innocence could
          have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). See
          also (Michael) Pierce, 786 A.2d at 221-22;
          Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d
          326, 333 (Pa. 1999).

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).



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      Appellant first complains that the PCRA court erred in finding attorney

Farrell effective “when the record establishes that Attorney Farrell had no

reasonable   strategic     basis   for   failing   to   file   a   response   to   the

Commonwealth’s Petition for Allowance of Appeal and, based on counsel’s

omission, the Supreme Court reinstated [appellant’s] judgment of sentence.”

(Appellant’s brief at 12.) To support that contention, appellant sets forth the

following colloquy that took place between the Commonwealth and attorney

Farrell at the PCRA hearing:

             Q    You filed a no answer letter in response to the
                  petition for allowance of appeal, right?

             A    I did.

             Q    Now working in the DA’s Office in an appellate
                  capacity, you would agree with me that’s the
                  standard practice in replying to petitions for
                  allowance of appeal, correct?

             A    To answer your question, that’s correct and
                  that’s a wrong practice for a defense attorney
                  to take in this day and age. That was wrong
                  for me, I should have never done that and I
                  haven’t made that mistake since. Prior to that
                  decision, the Supreme Court -- it was strongly
                  believed that if you filed a letter and not
                  respond with a brief, that they would -- you
                  wouldn’t red flag it, okay.      So that’s the
                  purpose of not responding with a brief because
                  you would red flag it. In this case, like I had
                  done in the past as a defense attorney, I did
                  not file a brief in response because I didn’t
                  want to red flag it. However, I found out from
                  this case that other cases that the Supreme
                  Court had changed the position. That when
                  the Commonwealth takes an appeal that they
                  look at their appeal real strongly and they will


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                  reverse without briefs or argument. So in this
                  case I made a blunder, I made a mistake but I
                  never will have that happen again in any other
                  case and I have not done that since.

Notes of testimony, 11/14/14 at 17-18. Even though counsel admitted to

making a mistake, we need not determine whether his failure to file a reply

to the Commonwealth’s application for allowance of appeal was reasonable

because appellant has failed to demonstrate prejudice.

      As aptly noted by the PCRA court and as reflected in the record, our

supreme court reinstated appellant’s judgment of sentence after finding that

this court made an error of law when reversing the trial court’s judgment of

sentence and remanding for a new trial. (PCRA court opinion, 3/10/15 at 9;

Docket #47.)     After our supreme court entered that order, the record

reflects that attorney Farrell filed an application for reconsideration in which

he advanced his arguments.       (Notes of testimony, 11/14/14 at 20.)        Our

supreme court denied appellant’s application.1 (Id.)

      Therefore, regardless of whether attorney Farrell advanced his

arguments in a reply to the Commonwealth’s application for allowance of

appeal or in an application for reconsideration, our supreme court rejected

those arguments. As a result, appellant has not, and cannot, demonstrate

prejudice, and this claim lacks merit.




1
  We note that the certified record contains the order denying the application for
reconsideration, but there is no sequence number associated with the entry.


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      Appellant next complains that appellate counsel was ineffective

because he failed to raise certain claims on appeal that he raised in his

Rule 1925(b) statement.

      Here, attorney Farrell raised four issues in his Rule 1925(b) statement,

but pursued only one issue on appeal.2        At the PCRA hearing, attorney

Farrell testified that he has several decades of appellate experience, and

then he explained his strategy for selecting appellate issues, as follows:

            A     What I do is I look at the brief – I’m sorry, I
                  look at the transcript.    I go through the
                  transcript and I take copious notes, I have a

2
 Appellant raised the following issues in his statement of errors complained of
on appeal:

            1.    Whether      [appellant] was     denied    his
                  5th Amendment right to counsel during the trial
                  under both the Pennsylvania and United States
                  Constitution[s]?

            2.    Whether [appellant] was denied his absolute
                  right to testify during trial pursuant to the
                  Pennsylvania and/or United States Constitutions?

            3.    Whether the trial court erred in failing to grant
                  the motion to suppress evidence?

            4.    Whether the trial court erred, and/or violated the
                  [appellant’s] due process, when it intimidated
                  [appellant’s] witness when the court informed
                  the witness that he would be arrested for stating
                  during testimony that he was a jitney driver?

Statement of errors complained of on appeal, 4/3/08; Docket #41. Appellant
raised one issue on appeal: whether the trial court improperly deprived him of
his right of counsel. (Docket #72, Appendix A (Commonwealth v. Travillion,
No. 443 WDA 2008, unpublished memorandum (Pa.Super. filed October 13,
2010)).) In his brief, appellant mistakenly asserts that he raised two issues on
direct appeal. (Appellant’s brief at 18.)


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               pad. I don’t read it like a novel but I go
               through the transcript and I take copious notes
               and read everything. I read the record, I write
               and have notes to make sure that I understand
               the record fully. . . .

                      I have raised almost every issue that has
               been objected to at trial. The reason why I do
               that is, if I look at an issue and I think it’s
               really, really bad, sometimes I will not raise it
               but most of the time I will raise all of those
               issues in a concise statement to preserve. At
               that time, in that short period of time, I don’t
               have time to write a brief. I don’t have time to
               look at all the law and so forth. I’m trying to
               raise the issues, raise as many issues as I can
               -- that’s really wrong. I raise all the issues
               that have been preserved. Now on some of
               them I look at it and say it’s stupid, I’m not
               going to raise it in a concise statement. Things
               like sometimes the weight of the evidence and
               that kind of thing, I don’t raise it. But for the
               most part, I raise all of the issues that have
               been preserved and that’s what I do in a
               concise statement.

          Q    Mr. Farrell, so you’re casting a [wider] net in
               the 1925 B statement than you would later in
               the brief?

          A    Absolutely. Many times I’ll raise seven, eight,
               or maybe ten issues sometimes and I would
               never raise that in a brief. I would never do
               that in a brief. You raise two, three, four[]
               issues tops. I think the most I ever raised was
               five issues in a brief.     But in a concise
               statement, you raise those issues, you
               ferret [sic] it out and you see what the trial
               court writes. And there’s actually two cases
               that I had with Judge Cashman. One of them
               which is pending on appeal which is in front of
               the Supreme Court of Pennsylvania right now
               and the other has been reversed. In both
               cases I thought that the issues were frivolous.


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                I raised those and Judge Cashman wrote an
                opinion and after looking at his opinion, I
                realized maybe these claims did have merit
                and we did win both of them in Superior Court.

          Q     Your answer is, you said something along the
                lines “I would never raise ten issues in front of
                the Superior Court in my brief;” why is that?

          A     Well, Judge Aldisert’s quote[3] where if you
                raise ten, most appellate courts think that they
                all have no issues. You can only win a new
                trial on one issue, you don’t need two issues to
                win a trial so I try to be selective in most
                cases.




3
          The approach to appellate advocacy embarked on by
          present counsel for Appellant brings to mind the words
          of the Honorable Ruggero J. Aldisert of the United
          States Court of Appeals for the Third Circuit:

                With a decade and a half of federal
                appellate court experience behind me, I
                can say that even when we reverse a trial
                court it is rare that a brief successfully
                demonstrates      that   the    trial court
                committed more than one or two
                reversible errors.    I have said in open
                court that when I read an appellant’s brief
                that contains ten or twelve points, a
                presumption arises that there is no merit
                to any of them . . . [and] it is [this]
                presumption     ...    that   reduces   the
                effectiveness of appellate advocacy.

                Aldisert, “The Appellate Bar: Professional
                Competence          and       Professional
                Responsibility -- A View From the
                Jaundiced Eye of the Appellate Judge,” 11
                Cap. U. L. Rev. 445, 458 (1982).

Commonwealth v. Robinson, 864 A.2d 460, 479-480 n.28 (Pa. 2004).



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            Q     So Mr. Farrell, you would agree with me then
                  that you’re picking the best issue you think you
                  have when you write your brief to the Superior
                  Court?

            A     I try to raise the best issue that I can. . . .

Notes of testimony, 11/14/14 at 12-15.

      Here, attorney Farrell had a reasonable basis for pursuing one issue on

appeal: he focused on the one issue that he determined was the most likely

to prevail. His strategy comports with effective appellate advocacy, and his

actions, therefore, were reasonable.     Although our inquiry stops there, we

note that appellant claims that he suffered prejudice because attorney

Farrell’s “omission denied the opportunity for complete appellate review.”

(Appellant’s brief at 19.) Appellant, however, entirely fails to demonstrate

how counsel’s strategy so undermined the truth determining-process so that

no reliable adjudication of his guilt or innocence could have taken place.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/10/2016




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