Com. v. Palmero, I.

J-S26025-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ISHMAEL PALMERO, :

:

Appellant : No. 247 EDA 2017

Appeal from the PCRA Order December 9, 2016

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0011132-2010

BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

MEMORANDUM BY BOWES, J.: FILED JUNE 07, 2018

Ishmael Palmero appeals pro se from the order that dismissed his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

Appellant was convicted of first-degree murder, rape, and other crimes

based upon his killing of Darnell Goode, the new paramour of his ex-partner,

Lotoya Dupree. Afterwards, Appellant forced Ms. Dupree to have sexual

intercourse with Appellant while he held the bloody knife he had used to stab

Mr. Goode sixty-four times. He was sentenced to concurrent terms of life

imprisonment and seventeen and one-half to thirty-five years imprisonment.

On Appellant’s direct appeal, this Court affirmed the judgment of sentence

and our Supreme Court denied his petition for allowance of appeal.

Commonwealth v. Palmero, 121 A.3d 1119 (Pa.Super. 2015), appeal

denied, 124 A.3d 309 (Pa. 2015).

____________________________________

* Former Justice specially assigned to the Superior Court.

J-S26025-18

Appellant timely filed a pro se PCRA petition, and the PCRA court

appointed counsel. Counsel filed a motion to withdraw and no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The

PCRA court issued notice of its intent to dismiss Appellant’s petition pursuant

to Pa.R.Crim.P. 907, and Appellant filed a response. The PCRA court

nonetheless dismissed Appellant’s petition by order of December 9, 2016, and

Appellant timely filed a notice of appeal.1 Both Appellant and the PCRA court

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

On appeal, Appellant clams that he is entitled to relief because (1) his

sentence of life imprisonment is illegal, (2) the prosecution suppressed

information favorable to his defense in violation of Brady v. Maryland, 373

U.S. 83 (1963), and (3) PCRA counsel was ineffective in failing to state various

claims of ineffective assistance of prior counsel. Appellant’s brief at 4.

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1 Appellant’s notice of appeal was docketed more than thirty days after the

date of the order dismissing his petition. However, (1) the docket contains no

indication of the date it was served upon Appellant’s then-former counsel as

required by Pa.R.Crim.P. 114(C)(2)(c), and (2) the date of the clerk of courts’

receipt of the notice suggests it likely was placed in the hands of prison

authorities by the thirtieth day. Moreover, the Commonwealth does not

contend that the appeal was untimely. Therefore, we deem Appellant’s notice

of appeal timely. See Commonwealth v. Jerman, 762 A.2d 366, 368

(Pa.Super. 2000) (deeming appeal timely where clerk of courts did not

properly enter appealed-from order on the docket); Commonwealth v.

Cooper, 710 A.2d 76, 78 (Pa.Super. 1998) (“[F]or prisoners proceeding pro

se, a notice is deemed filed as of the date it is deposited in the prison mail

system.”).

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“Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.” Commonwealth v.

Johnson, 179 A.3d 1153, 1156 (Pa.Super. 2018) (internal quotation marks

omitted).

Appellant first contends that his PCRA petition should not have been

dismissed because he is serving a sentence which the trial court lacked the

statutory authority to impose. Appellant’s brief at 9-13. Appellant notes that

18 Pa.C.S. § 1102(a)(1) specifies that, except under circumstances not

relevant here, “a person who has been convicted of a murder of the first

degree . . . shall be sentenced to death or to a term of life imprisonment in

accordance with 42 Pa.C.S. § 9711 (relating to sentencing procedure for

murder of the first degree).” Section 9711(a)(1) provides “[a]fter a verdict

of murder of the first degree is recorded and before the jury is discharged, the

court shall conduct a separate sentencing hearing in which the jury shall

determine whether the defendant shall be sentenced to death or life

imprisonment.”

Appellant claims that these statutes were violated because, in his case,

the trial court discharged the jury without having a separate sentencing

hearing, and the trial court, not the jury, determined that Appellant was to be

sentenced to life imprisonment. Appellant’s brief at 11. Appellant argues

that, because § 9711 does not grant the trial court the authority to impose a

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sentence on first-degree murder, his sentence must be vacated. Id. at 12

(citing, inter alia, Commonwealth v. Arest, 734 A.2d 910, 912 (Pa.Super.

1999) (“If no statutory authorization exists for a particular sentence, then that

sentence is illegal and . . . must be vacated.”)).

Our legislature has determined that only two sentences are permissible

for an adult convicted of first-degree murder: death or life imprisonment. That

is the import of 18 Pa.C.S. § 1102(a)(1). In order for the death penalty to be

a sentencing option post-conviction, the prosecution must, initially, disclose

its intent to seek the death penalty at the time of arraignment, and file a

notice of the aggravating circumstances alleged. Commonwealth v. Buck,

709 A.2d 892, 896 (Pa. 1998). When the Commonwealth has not sought the

death penalty, which it did not in the instant case, ipso facto the only sentence

allowed under 18 Pa.C.S. § 1102(a)(1) is that of life imprisonment. Indeed,

the imposition of life imprisonment upon a first-degree murder conviction is

mandatory in non-capital cases, and no “individualized consideration of

offender and crime,” which is the purpose of the procedures established in 42

Pa.C.S. § 9711, is required. Commonwealth v. Yount, 615 A.2d 1316, 1321

(Pa.Super. 1992). Accordingly, the PCRA court did not err in finding no merit

in Appellant’s first claim.

Appellant next contends that the Commonwealth committed a Brady

violation by withholding exculpatory evidence. Specifically, he contends that

the discovery materials provided to the defense omitted the portions of Ms.

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Dupree’s medical records reflecting her statements made to the attending

physician and “all physical and scientific findings” by the physician and medical

staff that “would support or negate rape.” Appellant’s brief at 14.

“The crux of the Brady rule is that due process is offended when the

prosecution withholds material evidence favorable to the accused.”

Commonwealth v. Wholaver, 177 A.3d 136, 158 (Pa. 2018). “To succeed

on a Brady claim, the defendant must show: (1) evidence was suppressed by

the prosecution; (2) the evidence, whether exculpatory or impeaching, was

favorable to the defendant; and (3) prejudice resulted.” Commonwealth v.

Hannibal, 156 A.3d 197, 209 (Pa. 2016).

The PCRA court determined that there is no indication that any rape kit

materials or medical records were withheld from Appellant. PCRA Court

Opinion, 8/29/17, at 13. “Indeed, this evidence was admitted into the record

without objection by stipulation at trial.” Id. (citing, N.T., 9/26/13, at 45-56).

Our review of the record supports the PCRA court’s determination.

Among the trial exhibits in the certified record is Commonwealth Exhibit 152,

which is Thomas Jefferson University Hospital records for Ms. Dupree that

include the nursing triage report, the attending physicians notes, lab results,

and sexual assault medical report reflecting Ms. Dupree’s narrative of the

incident and the physical exam report. Appellant has failed to identify any

materials that were withheld, let alone ones favorable to the defense.

Therefore, we conclude that the PCRA court did not err in finding no merit in

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Appellant’s Brady claim.2 See, e.g., Commonwealth v. Roney, 79 A.3d

595, 610 (Pa. 2013) (explaining Brady claim failed because, inter alia, the

“PCRA court found that the Commonwealth had disclosed all the information

in its possession”).

Appellant’s remaining claims are of ineffective assistance of counsel.

The following principles guide our review.

Counsel is presumed effective, and an appellant has the

burden of proving otherwise. In order for Appellant to prevail on

a claim of ineffective assistance of counsel, he must show, by a

preponderance of the evidence, ineffective assistance of counsel

which so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.

To prevail on his ineffectiveness claims, Appellant

must plead and prove by a preponderance of the

evidence that: (1) the underlying legal claim has

arguable merit; (2) counsel had no reasonable basis

for his action or inaction; and (3) Appellant suffered

prejudice because of counsel’s action or inaction.

With regard to the [reasonable basis] prong, we will

conclude that counsel’s chosen strategy lacked a

reasonable basis only if Appellant proves that an

alternative not chosen offered a potential for success

substantially greater than the course actually

pursued. To establish the [prejudice] prong,

Appellant must show that there is a reasonable

probability that the outcome of the proceedings would

have been different but for counsel’s action or

inaction.

____________________________________________

2 Furthermore, as the Commonwealth notes, Ms. Dupree’s medical records do

not support a Brady claim because they were not within the exclusive control

of the prosecution, but were equally available to Appellant. Commonwealth’s

brief at 11 (citing, inter alia, Commonwealth v. Miller, 746 A.2d 592, 600

(Pa. 2000) (holding Brady claim meritless because hospital records in

question were equally available to prosecution and defense)).

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Commonwealth v. Brown, 161 A.3d 960, 965 (Pa.Super. 2017) (citations

and quotation marks omitted).

Appellant contends that PCRA counsel should have amended the PCRA

petition to state various claims of prior counsel’s ineffectiveness.3 Appellant’s

brief at 16-25. Among these allegations are Appellant’s contentions that all

of his attorneys rendered ineffective assistance in failing to raise or litigate the

claims that the trial court lacked authority to sentence him and that the

Commonwealth committed a Brady violation. As we have determined that

those claims lack merit for the reasons discussed above, none of his attorneys

was ineffective in failing to pursue them. Commonwealth v. Sneed, 45 A.3d

1096, 1115 (Pa. 2012) (“Counsel will not be deemed ineffective for failing to

raise a meritless claim.”).

Appellant also asserts that his direct appeal counsel was ineffective in

failing to preserve the claim that the evidence at trial was insufficient to

sustain his rape conviction. In Appellant’s direct appeal, this Court reviewed

the sufficiency-of-the-evidence claims regarding the murder and sexual

assault convictions, but held that the claim regarding the rape conviction was

waived for failure to include it in the Rule 1925(b) statement. Palmero,

____________________________________________

3 Appellant preserved the issues related to PCRA counsel’s effectiveness by

raising them in the PCRA court in response to the notice of intent to dismiss.

See Objections to Intent to Dismiss, 11/16/16, at 3-7; Commonwealth v.

Rykard, 55 A.3d 1177, 1186 (Pa.Super. 2012).

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supra (unpublished memorandum at 8). Appellant argues that he was

prejudiced by counsel’s failure to preserve the claim because “the rape

evidence is so weak and inconclusive that, as a matter of law” his conviction

would have been overturned. Appellant’s brief at 18.

Appellant seems to base his argument on the fact, repeatedly reiterated

throughout his brief, that Ms. Dupree testified that she did not think that she

had been raped. N.T. Trial, 9/24/13, at 171-72; N.T. Trial, 9/25/13 a.m., at

114. The statute under which Appellant was convicted provides that a person

commits rape where he engages in sexual intercourse with a complainant by

forcible compulsion. 18 Pa.C.S. § 3121(a)(1).

It is well-established that in order to prove the forcible

compulsion component, the Commonwealth must establish,

beyond a reasonable doubt, that the defendant used either

physical force, a threat of physical force, or psychological

coercion, since the mere showing of a lack of consent does not

support a conviction for rape by forcible compulsion. . . .

[F]orcible compulsion includes not only physical force or violence,

but also moral, psychological or intellectual force used to compel

a person to engage in sexual intercourse against that person’s will.

Commonwealth v. Eckrote, 12 A.3d 383, 387 (Pa.Super. 2010) (citations

and quotation marks omitted).

Notably absent from the elements is a requirement that the victim is

aware of the legal requirements of the crime or is of the opinion that she has

been subjected to an act that legally qualifies as “rape.” As the PCRA court

noted, Ms. Dupree testified that she did not want to have sex with Appellant

after he brutally murdered her lover, but Appellant had threatened her, saying

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he would “do the same thing to you that I did to him.” PCRA Court Opinion,

8/29/17, at 14. Further, he made his “request” for sex while brandishing the

knife with which he had killed Mr. Goode. Ms. Dupree testified that she did

not feel that she could say “no,” and that she was scared to scream because

she feared Appellant would stab her. N.T., 9/24/13, at 156-57. As such, the

evidence was sufficient to sustain Appellant’s rape conviction. Eckrote,

supra.

Appellant next contends that trial counsel was ineffective in failing to

cross-examine or impeach Ms. Dupree with the statement she gave to police

on June 2, 2010, and that all other counsel were ineffective for not raising the

claim. Appellant’s brief at 19-20. Initially, we note that the statement to

which Appellant refers is not that of Ms. Dupree, but rather that of Officer Jose

Viera reporting to the homicide division what Ms. Dupree had told him upon

his arrival at the crime scene. Appellant’s brief at Exhibit A. Moreover,

Appellant’s argument again hinges upon Ms. Dupree’s failure to indicate that

she had been raped, a fact we have held lacks the import Appellant ascribes

to it.

At any rate, the PCRA court found Appellant’s claim lacked merit,

offering the following analysis.

The victim was extensively cross-examined by trial counsel.

Further, “the mere fact that inconsistencies in testimony exist

does not ipso facto prove perjury.” Commonwealth v. Dyson,

378 A.2d 408, 411 n.5 (Pa. Super. 1977). However, it is not clear

there is an actual inconsistency in the testimony. The fact that

the victim stated she did not believe she had been raped does not

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mean that she was not raped. She stated that “he had forced me

to have sex before in the relationship. I didn’t really know that

that was rape.” N.T., 9/24/2013, at 172. . . . Further, the victim

testified that the reason she did not tell police about the rape right

away was due to her fear of petitioner. Id. at 166-168. Thus,

there was clearly forcible compulsion, and no amount of cross

examination of the witness would have changed the outcome of

the trial. Therefore, neither counsel can be deemed ineffective for

failing to preserve a meritless claim.

PCRA Court Opinion, 8/29/17, at 16-17.

The PCRA court’s determination is legally correct and supported by the

record. See N.T., 9/25/13 a.m., at 29-145 (cross-examination of Ms.

Dupree); N.T., 9/25/13 p.m., at 16-50 (continued cross-examination of Ms.

Dupree). Accordingly, Appellant’s argument entitles him to no relief from this

Court. Sneed, supra at 1115 (“Counsel will not be deemed ineffective for

failing to raise a meritless claim.”).

Finally, Appellant maintains that trial counsel was ineffective for failing

to present expert testimony to establish a diminished capacity defense.

Appellant’s brief at 23-25. The PCRA court analyzed the claim thusly.

In order to obtain relief for failure to call an expert witness,

petitioner must demonstrate: (1) that the witness existed; (2)

that the witnesses was available; (3) that counsel was informed

of the existence of the witnesses or should have known of their

existence; (4) that the witnesses were available and prepared to

cooperate and testify on petitioner’s behalf; and, (5) that the

absence of the testimony prejudiced petitioner. . . . [Appellant]

did not comply with these requirements, as he does not even

identify the potential expert witness. . . .

Here, trial counsel presented evidence that [Appellant] had

ingested PCP and alcohol, and this court instructed the jury that

voluntary intoxication could reduce a charge of first[-]degree

murder to third[-]degree murder. An expert would not have

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demonstratively added to the evidence such that a different

verdict would have resulted. Despite his alleged intoxication,

[Appellant] understood the nature of his crime and its

ramifications, disposed of one of the murder weapons, and then

raped the victim. [Appellant’s] claims are factually incorrect and

meritless.

PCRA Court Opinion, 8/29/17, at 15-16.

Once again, the PCRA court’s finding is supported by the record4 and

evidences no error of law. Appellant points to no available expert who would

have offered testimony to support the diminished capacity defense.

Accordingly, Appellant has not convinced us that relief is due.

Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012) (“It is an

appellant’s burden to persuade us that the PCRA court erred and that relief is

due.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/7/18

____________________________________________

4 See, e.g., N.T., 9/26/13, at 174-75 (counsel eliciting testimony about

Appellant’s use of PCP, rum, and beer on the day in question, that Appellant

was drunk and high, and that Appellant experienced hallucinations in such a

state); N.T., 9/27/13, at 106-07 (instruction to jury that voluntary intoxication

can render accused incapable of forming the specific intent to kill and that

Commonwealth had burden to disprove the defense).

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