The opinion
J-S09028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICARDO A. WHITING
Appellant No. 1568 EDA 2016
Appeal from the PCRA Order entered April 20, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0009287-2009
BEFORE: SHOGAN, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 30, 2017
Appellant, Ricardo A. Whiting, appeals from the April 20, 2016 order
entered in the Court of Common Pleas of Philadelphia County, denying his
petition for collateral relief pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
Following trial, a jury convicted Appellant of sexual assault.1
Appellant, who had been designated a sexual violent predator previously,
was sentenced on September 14, 2012, to a term of 25 to 50 years in
prison. On direct appeal, we affirmed his judgment of sentence.
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3124.1.
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Commonwealth v. Whiting, No. 2717 EDA 2012, unpublished
memorandum (Pa. Super. filed August 8, 2013).2
Appellant filed a pro se PCRA petition on November 4, 2013. Counsel
was appointed and filed an amended petition on August 5, 2014. The
Commonwealth filed a motion to dismiss the petition on January 5, 2016.
On March 7, 2016, the PCRA court issued a notice in accordance with
Pa.R.Crim.P. 907, indicating its intent to dismiss the petition without a
hearing. Appellant did not file a response. On April 20, 2016, the PCRA
judge, who was also the trial judge, dismissed Appellant’s amended petition.
This timely appeal followed. Both Appellant and the PCRA court complied
with Pa.R.A.P. 1925.
Appellant asks us to consider three issues in this appeal:
1. Did the lower court err in failing to grant PCRA relief where
appellate counsel had failed to raise the issue of whether the
Appellant had been denied his constitutional right to a speedy
trial on direct appeal?
2. Did the lower court err in failing to grant PCRA relief where
trial counsel had failed to move for a mistrial where after (sic)
one of the complaining witnesses had an outburst in the
courtroom?
3. Did the lower court err in failing to hold an evidentiary
hearing prior to deciding the PCRA petition?
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2
The three issues raised in Appellant’s direct appeal included weight of the
evidence, prosecutorial misconduct, and trial court error for permitting an
expert report to go out with the jury.
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Appellant’s Brief at 9 (some capitalization omitted).
In Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014) (en
banc), this Court reiterated:
“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. 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, 614 Pa. 159, 36 A.3d 121,
131 (2012) (citation omitted). “The PCRA court’s credibility
determinations, when supported by the record, are binding on
this Court.” Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
244, 259 (2011) (citation omitted). “However, this Court applies
a de novo standard of review to the PCRA court’s legal
conclusions.” Id.
Id. at 1214-15. Further,
“Counsel is presumed effective, and appellant bears the burden
of proving otherwise.” Commonwealth v. Steele, 599 Pa. 341,
961 A.2d 786, 796 (2008). The Pierce[3] test requires appellant
to prove, with respect to counsel’s performance, that: “(1) the
underlying claim has arguable merit; (2) no reasonable basis
existed for counsel’s actions or failure to act; and (3) petitioner
suffered prejudice as a result of counsel’s error such that there is
a reasonable probability that the result of the proceeding would
have been different absent such error.” [Commonwealth v.
Lesko, 15 A.3d 345, 373–74 (Pa. 2011)] (citing Pierce, at
975). Failure to prove any prong of this test will defeat an
ineffectiveness claim. Commonwealth v. Basemore, 560 Pa.
258, 744 A.2d 717, 738 n. 23 (2000). Counsel cannot be
deemed ineffective for failing to raise a meritless claim.
Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278
(2006).
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3
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012) (footnote, brackets,
and additional citation omitted).
In his first issue as framed, Appellant complains that the PCRA court
erred by rejecting his claim of direct appeal counsel ineffectiveness for failing
to raise a violation of Pa.R.Crim.P. 600, relating to prompt trials. Appellant’s
Brief at 9. However, he begins the argument portion of his brief by
contending the PCRA court erred in denying relief because trial counsel was
ineffective for failing to request dismissal of the case under Rule 600.
Appellant’s Brief at 12. We note that Appellant asserted in his Rule 1925(b)
statement that both appellate and trial counsel were ineffective with respect
to Rule 600. In light of that fact, we will address the issue in the context of
a layered ineffectiveness claim.
In Commonwealth v. Pitts, 884 A.2d 251 (Pa. Super. 2005), this
Court explained:
On more than one occasion, our Supreme Court has instructed
that to establish [ineffective assistance] of appellate counsel
based on the antecedent ineffectiveness of trial counsel, the
petitioner must demonstrate: “(1) the underlying claim of trial
counsel’s ineffectiveness has arguable merit; (2) appellate
counsel had no reasonable basis for failing to pursue the claim;
and (3) but for appellate counsel’s ineffectiveness, the result on
direct appeal would have differed.” Commonwealth v. Moore,
580 Pa. 279, 860 A.2d 88, 94 (2004); see also
[Commonwealth v. Lopez, 854 A.2d 465, 468-69 (Pa. Super.
2004), 854 A.2d at 468-69]; Commonwealth v. McGill, 574
Pa. 574, 832 A.2d 1014, 1020-21 (2003); Commonwealth v.
duPont, 860 A.2d 525, 531-32 (Pa. Super. 2004).
Id. at 253-54.
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In Pitts, we quoted from duPont where we looked to our Supreme
Court’s decision in Lopez, which “explained that all three prongs of the
Pierce test must be pleaded and proved as to trial counsel by a PCRA
petitioner simply to establish that the layered ineffectiveness allegation
regarding trial counsel satisfies the arguable merit prong of Pierce as to
appellate counsel.” Id. at 254 (quoting DuPont, 860 A.2d at 532, in turn
citing Lopez, 854 A.2d at 468). “Assuming the PCRA petitioner carries this
burden, he then must plead and argue the second and third Pierce prongs
as to appellate counsel.” Id.
With respect to the Rule 600 issue, Appellant’s amended PCRA petition
includes the following averments:
[Appellant] was arrested on May 28, 2009 but the case was not
commenced until September 13, 2011. Three separate motions
to dismiss pursuant to Rule 600 were filed but the court never
granted one. Trial counsel failed to raise the issue prior to trial
and appellate counsel failed to raised the issue on appeal.
[Appellant] was denied his rights to due process and effective
counsel, under the laws and Constitutions of the United States
and Pennsylvania, as [Appellant’s] trial counsel was ineffective
for failing to request dismissal pursuant to Rule 600 and
appellate counsel was ineffective for failing to raise the issue on
appeal.
Appellant’s Amended PCRA Petition, 8/5/14, at ¶ 7(3)-(4). In his
Memorandum of Law filed in support of his petition, Appellant repeats the
dates of arrest and commencement of trial, contends the only request for
continuance by Appellant accounted for approximately four months, and
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indicates that the record is devoid of any extension of the Rule 600 run date.
Memorandum of Law, 8/5/14, at 4-5 (unnumbered). Appellant then asserts
that his right to a speedy trial was violated under constitutional provisions
and the mandates of Rule 600. Id. at 5 (unnumbered). He contends that
appellate counsel’s failure to raise the issue on direct appeal constitutes
ineffective assistance of counsel. Id. Nowhere in the memorandum does he
argue that trial counsel was ineffective with respect to Rule 600.
Addressing and rejecting Appellant’s Rule 600 claims, the PCRA court
explained:
The defendant filed numerous pro se pretrial motions to dismiss
based on various incongruous theories of why the
Commonwealth had insufficient evidence to proceed and how he
was being subjected to gross injustice. In three of them he cited
then Rule 600(g), simply noted the number of days he had been
held without bail, that the Commonwealth failed to exercise due
diligence in bringing him to trial, and he was prejudiced because
he had to stay in jail. Since none of them contained any
indication of having merit, and the defendant was represented
by counsel, they were ignored with one apparent exception
[involving a Rule 600G motion that was noted to be withdrawn
as “moot”].
....
In the amended PCRA petition and the 1925(b) Statement,
counsel merely cited Rule 600, without mentioning which of its
provisions applied, the time periods involved, or any other
applicable criteria, and claimed the defendant’s state and federal
rights were violated because counsel was ineffective for failing to
assert it. In none of the submissions did the defendant nor
counsel attempt to demonstrate how the Commonwealth failed
to exercise due diligence, the reasons for any delays and
whether they were caused by it, the court or himself, or how he
suffered and prejudice to his defense, and the court was not
required to make an effort to discover any such bases for those
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claims on his behalf. Nor did either mention the reason why the
defendant was not released on bail prior to his trial.4
PCRA Court Opinion, 7/28/16, at 21-22.
We conclude the PCRA court’s findings are supported by the record
and we find no error in its determination that Appellant’s Rule 600
ineffectiveness claim lacked merit. As the record reflects, Appellant failed to
meet his initial burden of pleading and proving trial counsel was ineffective
with regard to Rule 600. Having failed to meet that initial burden, Appellant
cannot succeed in a claim of layered ineffectiveness of counsel. Appellant’s
Rule 600 claim fails.
In his second issue, Appellant complains that the PCRA court erred in
denying relief based on trial counsel’s failure to request a mistrial after one
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4
The PCRA court later explained that the reason Appellant was not released
prior to trial was “evident from his history of sexual and other offenses as
summarized by the Sexual Offenders Assessment Board [“SOAB”]. It listed
his record in Philadelphia as nine previous arrests, under various aliases, for
sex related offenses for two of which there was no disposition available [and
one that] resulted in a guilty verdict.” PCRA Court Opinion, 7/28/16 at 27.
In addition he had a “significant history” of nonsexual crimes in several
jurisdictions resulting in thirty-two arrests and twelve convictions for, inter
alia, simple assault, DUI (drug related), and a Megan’s Law registration
violation. “Not surprisingly, [SOAB] concluded that his history represented a
very high risk for sex offense recidivism, thus rendering him eminently
qualified to the art. I, § 14 ‘no condition or combination of conditions can
ensure the safety of any person and the community. . .’ exception to Rule
600’s provisions.” Id. (citing Commonwealth v. Jones, 899 A.2d 353 (Pa.
Super. 2006)).
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of the complaining witnesses had an “outburst” in the courtroom.5 In its
review of the issue, the PCRA court focused on Appellant’s failure to satisfy
the third prong of the Pierce test, i.e., that Appellant was prejudiced by the
outburst or the failure to request a mistrial. Again, the failure to prove any
prong of the Pierce test will defeat an ineffectiveness claim. Philistin, 53
A.3d at 10 (citing Basemore, 744 A.2d at 738 n. 23).
Regarding the complaining witness’ outburst, the PCRA court
recognized that:
Nowhere in the amended petition did counsel explain how that
incident could have done the defendant’s case any harm, nor
why it would not be more likely to have been interpreted to be
exactly what it was, the result of [the witness] being justifiably
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5
In the course of cross-examination, the complaining witness stated, while
leaving the witness stand, “Do you know what? I’m done . . . I don’t care.
Let him off then. Let him rape everybody else. I don’t care--” and also
commented, “I’m tired of you fucking niggers.” N.T., Trial, 9/15/11, at 91-
93. When the trial court learned of the latter remark, and noting that the
jury was comprised of eight African-Americans, the trial court elected to “poll
the jury about what they heard and whether they can still be fair.” Id. at
93. We agree with the PCRA court and the Commonwealth that Appellant
has mischaracterized both the jurors’ responses and the witness’ testimony
when asked if she could continue cross-examination. When asked if their
ability to be fair and impartial would be affected by what they heard, the
jurors and alternates all stated they would not be affected. The closest any
answers came to being affirmative responses were one juror’s and one
alternate’s responses of “I don’t think so,” which the PCRA court equated to
a “no” answer. With regard to the trial court’s questioning of the
complaining witness to assess whether she was able to resume cross-
examination, the witness said she would “try” to answer defense counsel’s
questions, indicating she was willing to answer but simply did not have the
ability to answer some of the questions and was becoming frustrated. When
the trial court told her she should say, “I don’t remember or I can’t answer
that question,” the witness replied, “Okay.” Id. at 114-15.
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frustrated at being an innocent rape victim have to stand being
harassed by insignificant irrelevant and insidiously petty details
for having the nerve to have reported a crime. Trial counsel did
not move for a mistrial because the court would have certainly
denied it, and would have been fully justified in doing so, since it
was defense [counsel] that caused it.
PCRA Court Opinion, 7/28/16 at 7. The PCRA court also explained that the
jurors were asked individually about the outburst and whether it would affect
their ability to be fair and impartial and noted that none of the jurors
responded affirmatively. At the conclusion of the voir dire, which spanned
17 pages of the trial transcript, the court stated, “[b]ased on the comments
from all the jurors, I don’t see any legal grounds that would justify the
[c]ourt aborting the trial.” Id. at 11 (quoting N.T., Trial, 9/15/11, at 112-
13).6
Here, the trial court determined a mistrial was not warranted and
acknowledged in its PCRA opinion that a mistrial request would have been
denied. Id. at 7. Clearly, Appellant cannot demonstrate he was prejudiced
by trial counsel’s failure to request a mistrial. We find the PCRA court’s
findings in this regard are supported by the record and are without legal
error. Appellant’s second issue fails.
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6
As our Supreme Court recognized, “whether and to what extent relief is
due from an incident such as an emotional outburst in the courtroom is
within the discretion of the trial court, and unless the unavoidable effect of
the incident is to deny the defendant a fair trial, there is no error.”
Commonwealth v. Philistin, 774 A.2d 741, 743 (Pa. 2001) (citations
omitted).
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In his third issue, Appellant argues that the PCRA court erred in
dismissing his amended petition without an evidentiary hearing. We
disagree. As the PCRA court noted, Appellant initially identified one of the
complaining witnesses as a prospective witness but did not provide any
information concerning the substance of her testimony as required by 42
Pa.C.S.A. § 9545(d)(1). PCRA Court Opinion, 7/28/16, at 27. In his
amended petition, Appellant listed only trial counsel and direct appeal
counsel as witnesses, noting he expected trial counsel would explain his
failure to seek a Rule 600 dismissal and his failure to seek a mistrial for the
witness outburst, while direct appeal counsel would explain his failure to
raise the Rule 600 issue. See Amended PCRA Petition, 8/5/14, at 4-5
(unnumbered). Quoting this Court’s opinion in Commonwealth v. Jones,
942 A.2d 903 (Pa. Super. 2008), the PCRA court stated:
There is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record
that no genuine issues of material fact exist, then a hearing is
not necessary. All of appellant’s PCRA claims pertained to
ineffective assistance of counsel. Since such a claim must meet
all three prongs of the test for ineffectiveness, if the court can
determine without an evidentiary hearing that one of the prongs
cannot be met, then no purpose would be advanced by holding
an evidentiary hearing.
Id. at 28 (quoting Jones, 942 A.2d at 906 (citation omitted)). The PCRA
court then explained:
Here it is clear that [Appellant] has not met any of the Pierce
test’s prongs: he completely failed to demonstrate that a motion
for a mistrial or dismissal would have had arguable merit, and
that, therefore, his counsel would have had some reasonable
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basis to bring such motions, or that counsel’s alleged failure
prejudiced him, not by his having to remain incarcerated, but by
causing adverse effects on his ability to defend himself.
Id. We find no error in the PCRA court’s dismissal of Appellant’s amended
petition without first conducting an evidentiary hearing. Appellant’s third
issue fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2017
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