J-S12023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CARNELL E. CHAMBERLAIN,

                            Appellant                 No. 978 EDA 2014


                 Appeal from the PCRA Order February 28, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0409611-2003


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 31, 2015

       Appellant, Carnell E. Chamberlain, appeals from the denial of his

petition filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541–9546. We affirm.

       We previously summarized the facts of the case as follows:

             On August 24, 2001, at approximately 9:30 p.m., 17 year
       old Curtis Cannon was shot dead in the street in the area of
       Clearfield and Potter Streets in the City and County of
       Philadelphia.  Apparently two groups of drug dealers doing
       business at opposite ends of the same street, Custer and
       Allegheny and Custer and Clearfield, were at odds with each
       other. The two groups argued regularly over customers and
       threatened to “take out arms.” The victim, Curtis Cannon was
       seen that day selling drugs at Clearfield and Custer Streets. On
       the night of August 24, 2001, Anna Vargas who lived at 3109
       Custer Street, was sitting on her steps with her children when
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*
    Former Justice specially assigned to the Superior Court.
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     she heard two groups of males arguing. They were yelling about
     whose customers were whose. Ms. Vargas moved the children
     to a safer location, just inside her outer door. When the yelling
     stopped, she returned to her steps. Then she heard about 6 gun
     shots. Ms. Vargas put her children inside the house and closed
     her door. She looked out of her window and saw [A]ppellant and
     another male, later identified as the co-defendant, Kevin Burton
     (Burton), running up the street, past her window. She was
     familiar with both males, having regularly seen them in the
     neighborhood selling drugs. As he ran, Ms. Vargas watched
     [A]ppellant put a silver metallic looking gun under his shirt.
     [A]ppellant and Burton entered the house at 3112 Custer Street.
     Burton exited the house about five minutes later and entered an
     abandoned property further up the street. [A]ppellant was not
     seen coming out. Philadelphia Police officers arrived on the
     scene and began conducting their investigation. Ms. Vargas
     indicated to an officer that she had some information about the
     shooting however, she would not allow any officer to come to
     her home. Arrangements were made and Ms. Vargas was picked
     up that night a few blocks from her home and transported to the
     Homicide Division where she relayed her observations to
     Homicide Detective James Burke.          Upon completion of the
     interview, Detective Burke gave Ms. Vargas his contact
     information in the event she needed to contact him further. On
     November 27, 2001, Ms. Vargas paged Detective Burke to tell
     him that [A]ppellant and Burton were in the neighborhood and
     gave a description of what they were wearing. Detective Burke
     was unable to respond at the time, but requested that
     plainclothes officers from the area, the 24th Police District, follow
     up on the information. The officers located [A]ppellant on the
     3100 block of Custer Street and he was stopped for
     investigation. An officer called Ms. Vargas while at the scene
     and she confirmed that they had the right male. [A]ppellant was
     picked up and brought in to the homicide unit. He was printed,
     identified, then released. On December 15, 2001, Detective
     Burke and Detective Mosley met with Ms. Vargas to show her
     photographs of possible suspects.          Ms. Vargas positively
     identified [A]ppellant and Burton from the photo spreads.

            On the night of August 24, 200[1], at approximately 9:30
     p.m., Tuere Rogers was walking down Clearfield Street from E
     Street, on her way to a cousin’s house, when she saw two males
     later identified as [A]ppellant and co-defendant, Kevin Burton,
     standing, peeking around and acting “sneaky” near a white van.

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     They were standing very close, directly on each other[’]s back,
     looking whispering and peeking out of the van. She observed
     Burton with a black gun which he appeared to be firing at her.
     He fired two shots in her direction and she ducked behind a car.
     She heard two more shots. The shooting subsided and Ms.
     Rogers came up from behind the car. At that point someone
     said that a boy had been shot and Ms. Rogers began walking
     down Potter Street to see what had happened. She again
     observed the same two males, [A]ppellant and Burton, peeking
     around the corner near a red brick house at 3100 Reach Street,
     still standing close and peeking out down Potter Street. Ms.
     Rogers was interviewed that night about what she had observed
     by Detective Burke of the Homicide Unit. On January 21, 2002,
     Ms. Rogers picked [A]ppellant and Burton from a photo spread.

           Arrest warrants were prepared for [A]ppellant and Burton.
     Burton was apprehended shortly thereafter however, [A]ppellant
     eluded police for some time. Until on January 11, 2003, while
     investigating an unrelated shooting, Lieutenant George McClay
     questioned a gunshot victim at the Medical College of
     Pennsylvania Hospital (MCP).      The victim later identified as
     [A]ppellant, gave his name as Tyrell Buffet. Detective McClay’s
     investigation determined that the name, Tyrell Buffet, was likely
     an alias. This information was relayed to Homicide Detective
     George Fetters who went to MCP with a fingerprint technician to
     try and determine the identity of the shooting victim. During the
     fingerprinting procedure, [A]ppellant who had appeared
     unconscious, awoke, observed what was going on, and snatched
     his hand away from the technician. The technician continued his
     work. This time, [A]ppellant sat straight up in the bed, again
     pulled his hand away, then fell back down onto the bed. The
     prints were analyzed and [A]ppellant’s identity was verified.
     [A]ppellant was arrested and charged with murder and related
     offenses. A motion to suppress was litigated and denied.

Commonwealth v. Chamberlain, 3353 EDA 2003, 876 A.2d 460 (Pa.

Super. filed April 27, 2005) (unpublished memorandum at 1–3).

     Following a multi-day jury trial, Appellant was convicted of first-degree

murder, criminal conspiracy, possession of an instrument of crime (“PIC”),

and a violation of the Uniform Firearms Act. On October 23, 2003, the trial

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court sentenced Appellant to life imprisonment for murder, five to ten years

of imprisonment for conspiracy, a three-and-one-half-to-seven-year term of

incarceration for the firearms violation, and two and one-half to five years of

imprisonment for PIC.        Appellant filed a timely notice of appeal, and both

Appellant and the trial court complied with Pa.R.A.P. 1925.          This Court

affirmed the judgment of sentence on April 27, 2005. Chamberlain, 3353

EDA 2003 (unpublished memorandum).1               Our Supreme Court denied

allowance of appeal on March 28, 2006. Commonwealth v. Chamberlain,

304 EAL 2005, 895 A.2d 1258 (Pa. 2006).2

       On December 11, 2006, Appellant filed a pro se PCRA petition.        The

PCRA court appointed counsel, who filed an amended petition on June 1,

2007, and a supplemental petition on July 30, 2007. The instant PCRA court

notes the following regarding the procedural history:

       On December 11, 2006, [A]ppellant filed a pro se PCRA petition
       claiming that his right to counsel was violated when the jury
       instructions on first and third degree murder were re-read
       without his counsel being present; that trial counsel was
____________________________________________


1
   The issues before this Court on direct appeal were the sufficiency of the
evidence, the composition of the jury, the trial court’s refusal to charge the
jury in accordance with Commonwealth v. Kloiber, 106 A.2d 820 (Pa.
1954), improper closing argument by the prosecutor, and improper
admission of prejudicial evidence. In addition, the trial court addressed the
weight of the evidence in its Pa.R.A.P. 1925 opinion, on which we relied in
affirming the judgment of sentence. Trial Court Opinion, 6/18/04.
2
   Appellant filed a pro se PCRA petition on September 28, 2005, which he
subsequently withdrew on October 24, 2005, due to his pending petition for
allowance of appeal in the Pennsylvania Supreme Court.



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     ineffective for failing to request a curative instruction when the
     prosecutor allegedly made improper statements during closing;
     that he was deprived of his right to a fair trial by several
     instances of alleged prosecutorial misconduct and trial counsel
     was ineffective for failing to object to the improper remarks; that
     trial counsel was ineffective for failing to file an oral motion in
     limine with respect to evidence used by the Commonwealth to
     show consciousness of guilt; and that trial counsel was
     ineffective for failing to present Evelyn Vasquez as a defense
     witness to contradict the testimony of other witnesses. PCRA
     counsel was appointed and filed an amended petition,
     incorporating all of [A]ppellant[’]s pro se complaints and adding
     that the Court erred in re-instructing the jury on 1st and 3rd
     degree murder and accomplice/co-conspirator liability without
     [A]ppellant’s counsel present in that [A]ppellant was deprived of
     counsel at a critical stage of the proceedings, and trial counsel
     was ineffective for failing to preserve the issue.2 Thereafter, the
     Commonwealth filed a Motion to Dismiss the PCRA petition
     asserting that the claims were meritless. The Court reviewed
     the submissions of counsel, the record and the controlling law
     and determined that [A]ppellant was not entitled to PCRA relief.
     Following proper notice, [A]ppellant’s petition was dismissed [on
     January 18, 2008].
           2
             The Court re-instructed the jury on first degree
           murder, including specific intent to kill and how it
           relates to co-conspirators and accomplices, and third
           degree murder in response to the jury’s request to
           re-define each. (N.T. 10/22/03 pg. 140-144)

           Appellant appealed the dismissal of his petition for relief
     [on January 29, 2008]. On September 29, 2008, in response to
     [A]ppellant’s pro se “Second Petition Requesting Remand to the
     PCRA Court for a Grazier hearing,” apparently filed directly with
     [the Superior Court] and not served upon this Court, the
     Superior Court, ordered that a hearing pursuant to
     Commonwealth v. Grazier be conducted.3
           3
             Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81
           (1998), holding that the waiver of the right to
           counsel at the appellate stage requires an on-the-
           record determination that the waiver is knowing
           intelligent and voluntary.


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       By correspondence dated October 29, 2008, the Superior Court
       was notified that, following the October 24, 2008 Grazier
       hearing, [A]ppellant’s decision to waive his right to counsel was
       determined to be knowing intelligent and voluntary, and
       [A]ppellant was permitted to represent himself on PCRA appeal.

PCRA Court Opinion, 7/30/14, at 1–3.

       On appeal to this Court, Appellant argued that his constitutional right

to counsel was violated when the trial court re-instructed the jury on first

and third degree murder and accomplice liability outside of the presence of

his trial counsel.   He also claimed that the trial court should not have

permitted his co-defendant’s counsel to stand-in for Appellant’s trial counsel

due to a conflict of interest, and that his trial counsel was ineffective for

failing to object or request a mistrial. Because Appellant asserted in his pro

se PCRA petition that allowing his co-defendant’s counsel to stand-in for trial

counsel posed a conflict of interest, and the claim was neither addressed by

the PCRA court in its opinion nor developed in the record to permit

consideration of this issue, we remanded the case for an evidentiary hearing

on April 29, 2009. Moreover, because Appellant sought to raise additional

claims challenging PCRA counsel’s ineffectiveness, we concluded that such

claims could be re-asserted upon remand in an amended PCRA petition and

then   addressed     in   the   evidentiary   hearing.   Commonwealth       v.

Chamberlain, 214 EDA 2008, 974 A.2d 1178 (Pa. Super. filed April 29,

2009) (unpublished memorandum).               Our Supreme Court denied the

Commonwealth’s request for allowance of appeal on December 30, 2009.


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Commonwealth v. Chamberlain, 305 EAL 2009, 987 A.2d 159 (Pa. filed

December 30, 2009).

      Appellant filed a post-remand PCRA petition on February 4, 2010,

setting forth four issues to be addressed at the evidentiary hearing. He also

requested appointment of counsel. The PCRA Court described the ensuing

procedural history as follows:

             New counsel was appointed, however, on May 17, 2010,
      [A]ppellant requested that substitute counsel be appointed or
      that he be permitted to represent himself, citing irreconcilable
      differences effecting representation.        On June 17, 2010,
      following a video status and Grazier hearing, [A]ppellant was
      again permitted to waive his right to counsel, appointed counsel
      was withdrawn, and [A]ppellant was ordered to submit all
      additional claims by July 16, 2010. Appellant submitted no
      additional claims but, in the interest of fairness, the Court again
      appointed new PCRA counsel to represent [A]ppellant for the
      impending evidentiary hearing [on August 17, 2010]. On April
      11, 2011, new PCRA counsel filed a consolidated supplemental
      PCRA petition and memorandum of law, and subsequently, a
      second consolidated supplemental amended PCRA petition and
      memorandum of law [on May 18, 2012] . . . . On March 18,
      2013, the Commonwealth filed a motion to dismiss denying the
      factual allegations and claims for relief in [A]ppellant’s petition,
      and requesting that the court deny the petition without a
      hearing. The [c]ourt reviewed the submissions of both counsel
      and scheduled an evidentiary hearing.                However, the
      proceedings in [A]ppellant’s case were significantly delayed due
      to frequent bouts of serious physical incapacity suffered by PCRA
      counsel, which ultimately resulted in her withdrawal from
      representation on April 19, 2013. On July 16, 2013, present
      PCRA counsel was appointed to represent [A]ppellant at the
      ensuing evidentiary hearing. Counsel subsequently apprised the
      Court that he had reviewed the pleadings and consulted with
      [A]ppellant and that there were no additional claims for relief he
      wished to present . . . .




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PCRA Court Opinion, 7/30/14, at 4–6.3

       The PCRA court held the evidentiary hearing on October 18, 2013,

wherein Appellant and his co-defendant’s counsel testified. At the conclusion

of the hearing, the PCRA court apprised counsel that any additional

submissions or a request for further hearing should be submitted by

November 22, 2013. Having received no further submissions, and following

notice, the PCRA court dismissed Appellant’s petition on February 28, 2014.

Appellant filed a timely notice of appeal; both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

       Appellant raises the following two issues on appeal:

       I.     Is [Appellant] entitled to an arrest of judgment on the
              charges of Murder in the First Degree and Criminal
              Conspiracy where, as here, the evidence is insufficient to
              sustain the verdict?


____________________________________________


3
   Appellant also filed a pro se petition for writ of habeas corpus in federal
court asserting several claims of ineffective assistance of counsel on
February 7, 2013, while his PCRA petition was pending. He asked the
District Court for the Eastern District of Pennsylvania to excuse his failure to
exhaust the claims in the Pennsylvania Courts due to the delay in
adjudicating them. The federal court denied the petition for writ of habeas
corpus, holding that while there were periods of inactivity, each time a
hearing date approached, Appellant asserted reservations regarding his
counsel or amended or supplemented the PCRA petition. Noting the instant
PCRA judge’s active role in moving the case as expeditiously as possible, the
district court concluded there was no substantial showing by Appellant of the
denial of a constitutional right requiring the issuance of a certificate of
appealability, and denied the petition.        Chamberlain v. Lamas, not
reported in F.Supp.2d, No. 13-790, 2013 WL 4787349 (E.D.Pa. filed
September 9, 2013).



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      II.   Is [Appellant] entitled to a new trial where, as here, the
            verdict on the charges of Murder in the First Degree and
            Criminal Conspiracy are not supported by the greater
            weight of the evidence?

Appellant’s Brief at 3.

      In this appellate brief, counsel for Appellant fails to reference any of

the procedural history between the judgment of sentence in 2003 and the

recent PCRA evidentiary hearing on October 18, 2013. Counsel erroneously

asserts that the present appeal is from the judgment of sentence and

mistakenly claims that the PCRA court reinstated Appellant’s appellate

rights. In his brief, he has failed to provide the proper order appealed from,

which was the denial of Appellant’s PCRA petition on February 28, 2014, and

instead, maintains that the appeal is from the October 23, 2003 judgment of

sentence. Appellant’s Brief at 2. The two issues Appellant raises in his brief

are issues that were raised in the direct appeal in 2005 and bear no relation

to 1) the issue addressed at the evidentiary hearing, as ordered in our

remand, 2) the issues stated in Appellant’s post-remand PCRA petition filed

on February 4, 2010, or 3) the issues set forth in PCRA counsel’s

supplemental amended PCRA petition filed on May 18, 2012.

      The two issues raised on appeal are procedurally barred as they are

either previously litigated or are waived because they were not presented in

the Pa.R.A.P. 1925(b) statement.     Commonwealth v. Jones, 811 A.2d

994, 1000 (Pa. 2002). A claim is previously litigated under the PCRA if, inter

alia, “the highest appellate court in which the petitioner could have had

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review as a matter of right has ruled on the merits of the issue.”

Commonwealth v. Chambers, 807 A.2d 872, 881 (Pa. 2002).                 The

sufficiency and weight of the evidence were addressed in the June 18, 2004

trial court opinion upon which we relied in affirming the judgment of

sentence. Chamberlain, 3353 EDA 2003 (unpublished memorandum).

      Moreover, the issues presented herein also are waived for failure to

include them in the Pa.R.A.P. 1925(b) statement.       Pennsylvania Rule of

Appellate Procedure 1925(b)(4)(vii) provides, “Issues not included in the

Statement [of Errors Complained of on Appeal] and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”    See

also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues

not raised in a 1925(b) statement will be deemed waived.”).

      We are cognizant, however, that counsel filed a Pa.R.A.P. 1925(b)

statement that set forth the issue upon which we remanded for the

evidentiary   hearing,   Chamberlain,      214   EDA   2008    (unpublished

memorandum), and issues of prior counsel’s ineffectiveness.         In his

statement pursuant to Pa.R.A.P. 1925(b), Appellant’s counsel raised the

following issues:

      1.    That the Defendant should be remanded to the PCRA Court
      for a full evidentiary hearing where the Honorable PCRA Court
      erred where it dismissed [Appellant’s] Amended PCRA Petition
      without a hearing, even though [Appellant], through previous
      counsel, Sondra Rodrigues, Esquire, had properly pled and would
      have been able to demonstrate that he was entitled to relief
      pursuant to the PCRA, where, in sum, [Appellant] raised the
      following meritorious issues through Ms. Rodrigues:

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           a)    Trial counsel was ineffective for failing to
           object to the Court giving a reinstruction to the jury
           without trial counsel being present;

           b)    Previous       post-conviction    counsel     was
           ineffective for failing to raise and preserve the issue
           that trial counsel was ineffective for failing to object
           to prosecutorial misconduct, where the Prosecutor
           referenced [Appellant’s] prearrest and post-arrest
           silence;

           c)     Previous PCRA counsel was ineffective for
           failing to raise the issue of trial counsel’s
           ineffectiveness for not objecting to prosecutorial
           misconduct during closing argument where the
           Prosecutor     stated and/or   implied  that   the
           presumption of innocence ended prior to the end of
           deliberations.

Pa.R.A.P. 1925(b) statement, 4/17/14, at 1–2.       These are the issues the

PCRA court considered, evaluated, and addressed in its Rule 1925 opinion.

Pa.R.A.P. 1925 directs an appellant to identify in a concise manner the

issues sought to be pursued on appeal, thereby allowing the trial court to

prepare a legal analysis which is pertinent to those issues.     Thus, a trial

court does not have to guess what issues an appellant is appealing, and

meaningful appellate review is fostered.

     Following our review of the record, we conclude that the cogent

opinion filed by the Honorable Sheila Woods-Skipper, who also was the trial

judge and the jurist who presided over the evidentiary hearing, provided a

thoughtful and thorough analysis of the issues set forth in the Rule 1925(b)

statement. Therefore, if the Rule 1925(b) issues had properly been placed




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before us, we would affirm on the basis of the PCRA Court’s July 30, 2014

opinion.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2015




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