Com. v. Roser, H.

J-S88020-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

HARRY C. ROSER :

:

Appellant : No. 1533 EDA 2016

Appeal from the PCRA Order May 4, 2016

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0002577-2014

BEFORE: OLSON, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 14, 2017

Appellant Harry C. Roser appeals pro se from the order granting PCRA

counsel leave to withdraw under Turner/Finley1 and dismissing Appellant’s

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

§§ 9541-46. We affirm in part, reverse in part, and vacate the underlying

judgment of sentence in part.

The relevant facts and procedural history are as follows. On June 1,

2014, Appellant was pulled over for driving onto a cement median,

endangering the safety of emergency personnel responding to a fatal

____________________________________________

*Retired Senior Judge assigned to the Superior Court.

1

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth

v. Finley, 550 A.2d 213 (Pa. 1988)

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accident, and almost striking a police officer. See Notes of Testimony

(N.T.), 4/21/2015, at 6-8. Appellant “showed many signs of intoxication,

including slurred speech, bloodshot, glassy eyes, he stumbled and after

denying drinking, ultimately admitted to drinking a fifth of vodka.” N.T.,

6/17/2015, at 42-43. Appellant told officers he was too intoxicated to

complete sobriety tests and did not attempt to do so. See N.T., 4/21/2015,

at 7. Appellant’s blood alcohol content was 0.300%. See Affidavit of

Probable Cause, 6/10/2014.2 On April 21, 2015, following a full written and

oral colloquy, Appellant pleaded guilty to driving under the influence (DUI)

with highest rate of blood alcohol content (BAC .16%+), second offense.

See Guilty Plea Colloquy, No. 2577-2014, 4/21/2015 (“Colloquy”).3

At sentencing, the Commonwealth asked the court specifically for an

upward departure from the sentencing guidelines in light of the risk

Appellant posed to the community. See N.T., 6/7/2015, at 3. According to

the pre-sentence investigation report, Appellant was serving probation for

his prior DUI at the time of the incident, and this was Appellant’s “seventh

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2

Appellant was charged with: (1) driving under the influence (DUI) with

highest rate of blood alcohol content (BAC .16%+) (second offense), (2)

careless driving through an emergency response area onto a concrete

medium in disregard for the safety of persons or property, (3) failing to drive

within a single lane on roadways laned for traffic, and (4) failing to reduce

speed for safety while passing an emergency vehicle response area. See

Criminal Compl., No. 62-14-0040, at 3-4. 75 Pa.C.S. §§ 3802(c), 3714(a),

3309(a)(1), 3327(a)(2), respectively.

3

See 75 Pa.C.S. § 3802(c).

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lifetime DUI.” Id. at 2. Appellant’s ex-girlfriend testified at the sentencing

hearing. See N.T., 6/17/2015, at 12-16.4 Appellant was sentenced to two

and one-half to five years of imprisonment. See id. at 43-44.

Appellant filed a motion for reconsideration on June 26, 2015, which

the court denied on the same day. Motion for Reconsideration of Sentence,

6/26/2015; Order, 6/25/2015. Appellant failed to file an appeal. Instead,

Appellant pro se filed a PCRA Petition on December 7, 2015. See Motion for

Post-Conviction Collateral Relief, 12/7/2015, at 2, 4. PCRA counsel was

appointed on December 17, 2015. PCRA counsel later submitted a

Turner/Finley letter indicating that Appellant’s claims lacked arguable merit

and moved to withdraw as counsel in February 2016.5 Trial Ct. Op.,

____________________________________________

4

Appellant received his two most recent DUIs driving to see his ex-girlfriend

when she explicitly asked him not to come over. See N.T., 6/17/2015, at

24-25. She could not tolerate his harassment because he constantly called

and emailed her, despite her explicit rejections. She testified that he sent

her hundreds of inappropriate emails; one stated that he tampered with his

ankle transmitter, and in another he admitted to drinking exorbitant

amounts of alcohol. See id. at 12-16. According to girlfriend, he posted a

‘vile’ tweet on her twitter account that could have damaged her professional

reputation. See id. at 24-30. She had to change her phone number and

feared for the safety of her children, whom she had to take into the

basement when Appellant threatened to make unwelcome visits. See id.

5

Following receipt of counsel’s Turner/Finley letter, Appellant pro se filed a

series of correspondence with the court, altering the substance of his original

collateral claims, asserting the discovery of new evidence, alleging PCRA

counsel’s ineffectiveness, and moving for the PCRA judge to recuse. See

PCRA Ct. Order, 5/4/2016, at 2 (“Footnote Order”). As Appellant was still

represented, the PCRA court properly forwarded this correspondence to

appointed counsel. See Commonwealth v. Padilla, 80 A.3d 1238, 1259

(Footnote Continued Next Page)

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7/28/2016, at 2.

In March 2016, the PCRA court issued notice of intent to dismiss

Appellant’s petition without an evidentiary hearing pursuant to Pa.R.Crim.P.

907. See Rule 907 Notice, 3/22/2016 (finding “no issues concerning any

material fact”). On May 4, 2016, the court dismissed Appellant’s petition

and granted counsel’s request to withdraw from his representation. See id.

Appellant timely appealed. The PCRA court issued a responsive

opinion incorporating its earlier Footnote Order. See PCRA Ct. Op.,

5/28/2016. On appeal, Appellant pro se raises the following issues:

Whether trial counsel was ineffective for not arguing or

raising the issues below and whether these issues were properly

addressed in my PCRA, subsequent filings, and in PCRA counsel’s

‘no merit’ letters.

1. Were my due process rights violated at my sentencing?

2. Did the sentencing court err when it allowed the

introduction of extrinsic acts and the testimony of a

non-victim, ‘negative’ character witness at the

sentencing proceedings?

3. Was my DUI sentence, specifically it’s conditions, legal?

4. Did the PCRA court err in dismissing the PCRA without

an evidentiary hearing on:

a. Exculpatory evidence withheld by the Court and

the District Attorney’s Office.

b. After ‘ambush’ testimony of two witnesses

regarding phone calls.

_______________________

(Footnote Continued)

(Pa. 2013); Pa.R.Crim.P. 576(A)(4); PCRA Ct. Op., 7/28/2016, at 2.

Further, under our rules of criminal procedure, purported amendments to

pending PCRA petitions require court permission, else they are subject to

waiver. Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015)

(rejecting a claim raised by petitioner “outside of a court-authorized PCRA

petition”); see Pa.R.Crim.P. 905(A). Accordingly, to the extent Appellant

attempted to modify his claims or assert new ones we deem them waived.

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c. Ineffective counsel at sentencing.

d. Performance and misrepresentations of appointed

PCRA counsel.

Appellant's Br. at 2.

As to the merits of Appellant’s brief, preliminarily we observe:

[A]ppellate briefs and reproduced records must materially

conform to the requirements of the Pennsylvania Rules of

Appellate Procedure. Pa.R.A.P. 2101. This Court may quash or

dismiss an appeal if the appellant fails to conform to the

requirements set forth in the Pennsylvania Rules of Appellate

Procedure. Id.; Commonwealth v. Lyons, 833 A.2d 245 (Pa.

Super. 2003).

In re Ullman, 995 A.2d 1207, 1211–12 (Pa. Super. 2010).

While this court is willing to liberally construe materials filed by a pro

se litigant, we note that Appellant is not entitled to any particular advantage

because he lacks legal training. Commonwealth v. Rivera, 685 A.2d

1011, 1013 (Pa. Super. 1996). Appellant’s brief falls well below the

standard for presenting the statement of issues. See Pa.R.A.P. 2116. His

argument consists of a ‘stream of consciousness,’ referencing Appellant’s

version of the facts and matters unrelated to the issues presented in his

PCRA petition. Further, he fails to develop any meaningful argument

regarding his claim of ineffective assistance of counsel or cite any authority

to support his claims, risking waiver of all of his issues. See Pa.R.A.P. 2118.

Accordingly, we could suppress Appellant’s brief and dismiss his appeal on

this basis. See Ullman, 995 A.2d at 1212; Commonwealth v. Adams,

882 A.2d 496, 497-98 (Pa. Super. 2005) (laying out the standard forms that

appellate briefs shall follow); see also Pa.R.A.P. 2111(a)(1)-(11); Pa.R.A.P.

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2114-2119 (specifying in greater detail the material to be included in briefs

on appeal). Even though Appellant’s brief is nearly unintelligible, we

recognize that he is pro se. In all fairness to Appellant, we will conduct a

brief review to explain why his issues are devoid of merit.

Our standard of review of an order denying a PCRA petition is to

determine whether the findings of the PCRA court are supported by the

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). This Court gives deference to the PCRA court’s findings

unless there is no support for them in the certified record. Commonwealth

v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth

v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

Under the PCRA, ineffective assistance of counsel is a discrete legal

ground for a collateral appeal. See 42 Pa.C.S. § 9543(a)(2)(ii);

Commonwealth v. Collins, 888 A.2d 564, 570 (Pa. 2005). To establish

ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence: “(1) the underlying legal issue has arguable

merit; (2) counsel’s actions lacked an objective reasonable basis; and (3)

actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citing

Commonwealth v. Pierce, 786 A.2d 973, 976 (Pa. 1987)). To establish

prejudice, a petitioner must show that “there is a reasonable probability

that, but for counsel's error, the outcome of the proceeding would have been

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different.” Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015)

(citation omitted). The PCRA court may deny an ineffectiveness claim by

showing that the claim fails any part of the three-part Pierce test. See

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citing

Commonwealth v. Natividad, 938 A.2d 310, 321–22 (Pa. 2007)).

Because Appellant failed to formulate a meaningful argument relating

to his claim of ineffective assistance of counsel, we deem these challenges to

be waived.6 Appellant’s other arguments relate predominantly to

discretionary aspects of his sentence. A bald discretionary sentencing claim

is not cognizable under the PCRA. Commonwealth v. Taylor, 65 A.3d 462,

467 (Pa. Super 2013); Commonwealth v. Wrecks, 934 A.2d 1287, 1289

(Pa. Super. 2007) (“Requests for relief with respect to the discretionary

aspects of sentence are not cognizable in PCRA proceedings.”) (citation

omitted). “[A]fter a defendant has entered a plea of guilty, the only

cognizable issues in a post-conviction proceeding are the validity of the plea

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6

Specifically, Appellant claims that his due process rights were violated at

sentencing by permitting testimony by his ex-girlfriend without affording him

prior notice. See Appellant's Br. at 12-13. Second, he claims that the court

abused its discretion by permitting evidence of aggravating circumstances.

See id. at 12-15. Third, he maintains that the court abused its discretion in

imposing “conditions” along with his sentence. See id. at 16-18. Fourth, he

reiterates his displeasure with the evidence presented by the Commonwealth

at his sentencing hearing regarding the alleged harassment. See id. at 19.

Appellant claims that he was ‘ambushed’ at the hearing and claims his

attorney’s failure to provide him with copies of the evidence somehow

affected his ability to file a direct appeal. See id. at 20.

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of guilty and the legality of the sentence.” Commonwealth v. Rounsley,

717 A.2d 537, 538 (Pa. Super. 1998) (citing Commonwealth v. Martinez,

539 A.2d 399 (Pa. Super. 1988)).

Appellant suggests that certain conditions added to his sentence were

improper. See Appellant’s Br. at 16-18 (referencing the court’s

requirements that Appellant refrain from any contact with his ex-girlfriend,

either in person or through social media). This constitutes a challenge to the

legality of his sentence. See Commonwealth v. Mears, 972 A.2d 1210,

1211 (Pa. Super. 2009).

“[T]he Pennsylvania Board of Probation and Parole has exclusive

authority to determine parole when the offender is sentenced to a maximum

term of imprisonment of two or more years.” Commonwealth v.

Coulverson, 34 A.3d 135, 141 (Pa. Super. 2011) (quoting Mears, 972 A.2d

at 1211); see 61 Pa.C.S. § 6132(a). Appellant was sentenced to two and

one-half to five years of imprisonment. Thus, any conditions of parole

imposed upon Appellant are subject to the “exclusive power” of the state

parole board. Coulverson, 34 A.3d at 141; Mears, 972 A.2d at 1211

(citation omitted); see 61 Pa.C.S. §§ 6132(a) and 6134(b)(1), (2).

Here, the trial court lacked authority to impose conditions on

Appellant’s parole. See Coulverson, 34 A.3d at 142. This Court has

previously recognized such court-imposed conditions as “advisory only.” Id.

at 141-42 (citing Mears, 972 A.2d at 1211). Nevertheless, as the court’s

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“no contact” condition encroaches upon the exclusive authority of the state

parole board, we vacate that portion of Appellant’s sentence. See id.

Finally, Appellant claims that the court erred in dismissing his PCRA

petition without an evidentiary hearing. See Appellant's Br. at 21. There is

no absolute right to an evidentiary hearing. See Commonwealth v.

Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On appeal, we examine

the issues raised in light of the record “to determine whether the PCRA court

erred in concluding there were no genuine issues of material fact and

denying relief without an evidentiary hearing.” Springer, 961 A.2d at 1264.

Based upon our review of the record and the issues raised in Appellant’s

brief, there were no genuine issues of material fact that would require an

evidentiary hearing. Id. Accordingly, the court did not err in denying

Appellant’s petition without a hearing.

For the reasons stated above, we affirm the part of the PCRA order

that dismissed Appellant’s PCRA petition without a hearing for failing to raise

any issues of material fact. However, to the extent that the court denied

relief on Appellant’s illegal sentencing claim, we reverse that conclusion.

Finding instead that the “no contact” conditions of Appellant’s sentence are

illegal, that portion of the sentence is vacated without remand in that the

vacatur does not change the length of Appellant’s incarceration.

Commonwealth v. Thur, 906 A.2d 552, 570-71 (Pa. Super. 2006) (citing

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Commonwealth v. Robinson, 817 A.2d 1153, 1163 n. 14 (Pa. Super.

2003).

PCRA order affirmed in part, reversed in part; judgment of sentence

vacated in part.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/14/2017

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