J-S45019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SAMEEH RAWLS

                            Appellant                No. 1539 EDA 2016


                   Appeal from the PCRA Order May 11, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010110-2007


BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                              FILED JULY 26, 2017

        Appellant, Sameeh Rawls, appeals from the order entered in the

Philadelphia County Court of Common Pleas on May 11, 2016, denying his

petition pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546. We affirm.

        The relevant facts and procedural history of this case are as follows.

After a confrontation, Appellant and his co-defendant began discharging

firearms into a crowd of people. They killed one man, and two others

sustained gunshot wounds. A jury convicted Appellant of first-degree

murder, attempted murder, criminal conspiracy, and possession of an

instrument of crime. On June 10, 2010, the court sentenced Appellant to life

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S45019-17



imprisonment without the possibility of parole. Appellant timely filed a post-

sentence motion, which was denied by operation of law.

      Appellant timely appealed to this Court, and challenged the sufficiency

of the evidence presented by the Commonwealth. Appellant also contested a

two-week recess that occurred in the middle of his trial because of a

scheduling conflict known to the parties before trial. He claimed the trial

court improperly denied his motion for a mistrial, which was premised on

both the publication during the recess of a newspaper article critical of

Philadelphia’s criminal justice system, and the length of the recess. Our

Court found the sufficiency issue lacked merit, and Appellant waived the

mistrial argument for failure to cite to any pertinent authority. Appellant

timely filed a petition for allowance of appeal to our Supreme Court, which

was denied. Appellant did not seek a writ of certiorari from the United States

Supreme Court. Thus, Appellant’s judgment of sentence became final on

June 19, 2012, upon expiration of the time to file a petition for writ of

certiorari.

      Appellant timely filed the instant PCRA petition. After the court

appointed counsel, Appellant filed an amended petition. In it, Appellant

claimed trial counsel informed him of a prior plea deal the Commonwealth

offered. The alleged deal consisted of a twenty to forty-year sentence in

exchange for Appellant’s guilty plea to third-degree murder. Appellant

asserted he told trial counsel he wished to accept the plea, and that counsel

instead convinced Appellant to go to trial because he could “beat the case.”

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In his petition, Appellant also averred appellate counsel was ineffective for

failure to properly argue the mistrial issue.

      The PCRA court held an evidentiary hearing, at which time Appellant’s

trial counsel testified that he did not recall the Commonwealth making any

plea offer in this case. See N.T. Hearing, 7/17/15, at 8. Trial counsel stated

he reviewed his notes from the trial and had not found any notation

regarding a plea offer. See id. Further, counsel stated that he does not give

guarantees to clients, and would not have told Appellant he could “beat the

case.” Id., at 10. Appellant did not present any additional evidence or

argument regarding the mid-trial recess or newspaper article during the

hearing.   Following   the   evidentiary   hearing,   the   PCRA   court   denied

Appellant’s petition. This timely appeal is now before us.

      Appellant presents the following questions for our review:

      Is Appellant entitled to post-conviction relief in the form of a new
      trial or a remand for an evidentiary hearing since trial counsel
      and appellate counsel [rendered ineffective assistance] with
      regard to a plea offer made by the prosecutor?

      Is Appellant entitled to post-conviction relief in the form of [a]
      new trial or a remand for an evidentiary hearing since appellate
      counsel was ineffective when he failed to properly argue the
      issue of the trial court’s recess of the trial in the appellate brief?

Appellant’s Brief, at 4.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.



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Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “[Our] scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the

PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

2012) (citation omitted). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record. See

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

      “[T]his Court applies a de novo standard of review to the PCRA court’s

legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)

(citation omitted). In order to be eligible for PCRA relief, a petitioner must

plead and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A. §

9543(a)(2).

      It is well-settled that

      [t]o plead and prove ineffective assistance of counsel a
      petitioner must establish: (1) that the underlying issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) actual prejudice resulted from
      counsel's act or failure to act.

Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012)

(citation omitted). “Arguable merit exists when the factual statements are

accurate and could establish cause for relief. Whether the facts rise to the

level of arguable merit is a legal determination.” Commonwealth v.

Barnett, 121 A.3d 534, 540 (Pa. Super. 2015) (citation omitted). A failure



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to satisfy any prong of the test will require rejection of the claim. See

Spotz, 84 A.3d at 311.

       Appellant first argues that trial counsel was ineffective for advising

Appellant to reject the Commonwealth’s alleged twenty to forty-year plea

offer.1 Notwithstanding Appellant’s contention on appeal that he is entitled to

an evidentiary hearing, the PCRA court did, in fact, conduct a hearing on this

particular issue. At the hearing, Appellant testified that trial counsel

informed him of the plea offer from the Commonwealth. Appellant stated

that he told counsel he wished to accept the offer, but that counsel

convinced Appellant to instead proceed to trial because he could “beat the

case.”

       However, trial counsel also testified, and asserted that no such offer

was made. Further, counsel stated he would not have advised a client to

turn down a plea offer, and that counsel was not in the practice of making

guarantees about cases. The PCRA court accepted trial counsel’s testimony,

and rejected Appellant’s testimony as incredible. Moreover, the PCRA court,

which also presided over Appellant’s criminal trial, stated that its practice

was to record plea offers made before or during jury trials in order to

____________________________________________


1
  To the extent Appellant’s question for our review also purports to contest
appellate counsel’s effectiveness with regard to the plea offer, Appellant fails
to advance any argument whatsoever in this section of his brief concerning
appellate counsel. Thus, this issue is waived for our review. See Pa.R.A.P.
2119.



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colloquy the defendant. The court stated it had reviewed its file and found no

evidence that the Commonwealth made Appellant a plea deal.

      There is record support for the PCRA court’s credibility determinations.

Where there is such support, “we, as a reviewing court, are bound by those

determinations.” Commonwealth v. Abu-Jamal, 720 A.2d 70, (Pa. Super.

1998) (citation omitted). See also Commonwealth v. Harmon, 738 A.2d

1023, 1025 (Pa. Super. 1999). Appellant was unable to prove at the

evidentiary hearing that the Commonwealth ever offered a plea deal; thus,

his issue lacks arguable merit, and he is not entitled to relief based on

ineffective assistance of counsel.

      Appellant’s second issue challenges appellate counsel’s effectiveness.

On direct appeal, appellate counsel raised the issue of whether the court

erred by denying Appellant’s motion for a mistrial, due to the allegedly

prejudicial mid-trial recess and the newspaper article published during that

period. A prior panel of our Court found that issue waived, as appellate

counsel failed to cite to any authority in support of that argument. See

Commonwealth v. Rawls, No. 2935 EDA 2010, at 9 (Pa. Super., filed

September 16, 2011) (unpublished memorandum). Appellant’s argument in

his PCRA petition focuses on appellate counsel’s failure to properly argue

either of those grounds on direct appeal. To warrant relief at present,

Appellant’s underlying claim—that the mid-trial recess and the newspaper




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article about the court system necessitated a mistrial, and Appellant would

have been granted relief on appeal—must have arguable merit. It does not.

      A mistrial is an extreme remedy, and within the trial court’s discretion.

See Commonwealth v. Windslowe, 158 A.3d 698, 714 (Pa. Super. 2017).

“A trial court need only grant a mistrial where the alleged prejudicial event

may reasonably be said to deprive the defendant of a fair and impartial

trial.” Commonwealth v. King, 959 A.2d 405, 418 (Pa. Super. 2008)

(citation omitted).

      Aside from some general speculation on what jurors “may” have seen,

Appellant fails to even allege the prejudice that necessitated a mistrial.

Appellant does not assert that the newspaper article had any bearing on his

case. Instead, Appellant baldly claims, “[s]ome, if not all, of the jurors may

have read the Philadelphia Inquirer four part expose without informing the

trial court of their exposure.” Appellant’s Brief at 22. Even if we assumed

some jurors saw the article, Appellant’s own brief belies the notion that it

affected Appellant or his defense in particular. Indeed, his brief includes a

quote from trial counsel, who stated at the time that the article was

“uncomplimentary to everyone, to the court, to the district attorney’s office,

to a lesser extent the police department, to the defense bar, to everyone

associated with anything that goes on in the criminal justice system.” N.T.

Trial, 12/21/09, at 5; reproduced in Appellant’s Brief, at 19-20 (emphasis

added). Appellant fails to assert any specific prejudice with respect to his


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case that may have resulted from the newspaper article, and that would

have required a mistrial.

      Further, though Appellant’s brief claims otherwise, the court did issue

a cautionary instruction to the jurors advising them not to consider any

articles or editorials they may have read in the media. See N.T. Trial,

12/21/09, at 22. “The jury is presumed to have followed the court’s

instructions.” Commonwealth v. Chmiel, 30 A.3d 1111, 1147 (Pa. 2011)

(citation omitted).

      As to Appellant’s other asserted grounds for a mistrial, the record

establishes that all parties were aware of the mid-trial recess before the trial

began. See N.T. Trial, 12/4/09, at 287-300. Appellant’s trial counsel chose

not to rest the defense case before the recess, in order to locate an

additional witness. See id. Aside from vague speculation about what the

jury “may not have been able to recall” after the recess, Appellant again

advances no argument, let alone proof, that he was denied a fair and

impartial trial. Thus, there was no basis for a mistrial when the trial

resumed.

      Appellant has failed to present any evidence that, had appellate

counsel properly argued on direct appeal for a new trial based on the recess

or the newspaper article, either issue merited relief. Consequently, appellate

counsel cannot be deemed ineffective for failing to present this meritless




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claim on direct appeal. See, e.g., Commonwealth v. Lawrence, 960 A.2d

473, 478 (Pa. Super. 2008).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




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