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HomeMy WebLinkAbout94-1498 CriminalCOMMONWEALTH VS. SCOTT ANDERSON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 94-1498 CRIMINAL TERM CHARGE: (A) CRIMINAL HOMICIDE (2ND DEGREE) (B) ROBBERY (C) CRIMINAL CONSPIRACY (HOMICIDE) (D) CRIMINAL CONSPIRACY (ROBBERY) AFFIANT: PTL. ROBERT SMEE IN RE: PETITION FOR POST-CONVICTION RELIEF BEFORE HESS, J. AND NOW, this ORDER day of October, 1998, the petition of the defendant for post-conviction relief is DENIED. BY THE COURT, Jaime M. Keating, Esquire Chief Deputy District Attorney James K. Jones, Esquire For the Defendant Scott Anderson Defendant Kevin A. Hess, J. :rlm COMMONWEALTH VS. SCOTT ANDERSON · CHARGE: · AFFIANT: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 94-1498 CRIMINAL TERM (A) CRIMINAL HOMICIDE (2ND DEGREE) (a) ROBBERY (C) CRIMINAL CONSPIRACY (HOMICIDE) (D) CRIMINAL CONSPIRACY (ROBBERY) PTL. ROBERT SMEE IN RE: PETITION FOR POST-CONVICTION RELIEF BEFORE HESS, J. OPINION AND ORDER The petitioner, Scott Anderson, has filed a petition for post-collateral relief and claims that he is entitled to a new trial under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. Section 9541. Mr. Anderson generally avers in his PCRA petition that his trial, appellate, and current collateral-relief counsel were all ineffective in handling certain aspects of his case. The petitioner was convicted after a trial by jury of second degree murder, robbery, and conspiracy to commit these crimes. The murder victim was Officer Willis Cole of the New Cumberland Police Department, who was killed by Seifullah Abdul-Salaam ("Abdul-Salaam"), the petitioner's accomplice in a failed coin shop robbery during the morning of August 19, 1994. During the robbery, the petitioner and Adbul-Salaam attempted to flee after learning that the police had arrived. Abdul-Salaam, who was armed with a handgun, left the store first and avoided the police. The petitioner, however, was stopped by officer Cole, who ordered him to the ground. The petitioner complied with Officer Cole's request, and while Officer Cole was 94-1498 CRIMINAL standing over the petitioner attempting to complete the arrest and take him into custody, Abdul- Salaam came back to the scene of the robbery and fatally shot Officer Cole. The petitioner and Abdul-Salaam then continued to flee and were apprehended a short time later. A jury found the petitioner guilty of second degree murder, robbery, and conspiracy to commit robbery, and he was sentenced by this court to spend life in prison without the possibility of parole. He appealed to the Superior Court where, in an opinion on May 9, 1997, the judgment of this court was vacated in part and affirmed in part. The Superior Court found that the robbery had merged with the homicide, and the sentence for robbery was vacated. However, the petitioner remains incarcerated for life without the possibility of parole on the homicide conviction. The petitioner raises four issues of ineffectiveness in his PCRA petition. First, he alleges that his trial counsel was ineffective for advising him to lie about his knowledge of his co- defendant's intent to commit the robbery. Second, he alleges that his appellate counsel was ineffective because he failed to raise four issues of ineffective counsel before the Supreme Court. Third, he alleges that his current collateral-relief counsel was ineffective for failing to amend his original PCRA petition. Finally, he alleges that amendments to his petition raised after his PCRA evidentiary hearing alleging ineffectiveness of counsel entitle him to post-conviction relief. Inquiries in this case include the question of whether any allegation of error has been previously litigated. The term previously litigated means that "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue; or... it has been raised and decided in a proceeding collaterally attacking the conviction 2 94-1498 CRIMINAL or sentence." 42 Pa.C.S.A. Section 9544. Second, we must determine whether the allegation of error has been waived. "An issue has been waived where the petitioner fails to raise it when it could have been raised at trial or on appeal ... and an anti-waiver rule does not apply." Commonwealth v. Whitney, 550 Pa. 618,628, 708 A.2d 471,475 (Pa. 1998). To prove ineffective assistance of counsel under the PCRA, the petitioner must prove by a preponderance of the evidence that the conviction resulted from "[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilty or innocence could have taken place." 42 Pa.C.S.A. Section 9543(a)(2)(ii). The Supreme Court of Pennsylvania recently interpreted this section and stated that the petitioner must prove that "(1) that the underlying claim is of arguable merit; (2) that counsel's conduct was without a reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness." Commonwealth v, Washington, 547 Pa. 563,570, 692 A.2d 1024, 1027 (Pa. 1997) (citing Commonwealth v. Howard, 538 Pa. 86, 93,645 A.2d 1300, 1304 (Pa. 1994)). In summary, [petitioner] must demonstrate a number of things. First, he must demonstrate that the claim has not been previously litigated and has not been waived. If the claim has been waived, [petitioner] must demonstrate the waiver was the result of ineffective assistance of counsel at some point through direct appeal. If such demonstration is met, then [petitioner] must demonstrate that the ineffective assistance of counsel "so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place." Whitney at 629-630, 708 A.2d at 476. 94-1498 CRIMINAL Initially, the petitioner alleges that his trial counsel was ineffective for advising him to lie about his knowledge of his co-defendant's intent to commit the robbery. Mr. Anderson alleges that his trial counsel suggested that if he admitted to knowledge of the robbery, the jury might be more lenient and find the rest of his testimony more credible. We find this claim to be without merit. At the PCRA hearing the petitioner's trial counsel stated that he never advised Mr. Anderson to lie and also that he remembers Mr. Anderson admitting to knowledge of the robbery plans. We find the testimony of Mr. Al.~derson's trial counsel to be credible. If the petitioner perjured himself, he did so of his own accord and not because his trial counsel advised him to lie. Second, the petitioner alleges that his appellate counsel was ineffective because he failed to raise four issues of ineffective counsel before the Supreme Court. Because these issues were "previously litigated" before the Superior Court, the petitioner is not entitled to relief on these claims. "The term 'previously litigated' means that the highest appellate court wherein the petitioner could have had review as a matter of right has ruled on the issue." Whitney at 628, 708 A.2d at 475. Additionally, "an appeal to our Supreme Court is not a matter of right. See Pa.R.A.P. 1114 (review of a final order of the Superior Court is not a matter of right, but of Commonwealth v. Tanner, 410 Pa. Super 398, 406, 600 A.2d 201, sound judicial discretion)". 205 (1991). Moreover, a claim of counsel's failure to inform appellant of his right to seek discretionary review by the Supreme Court is not cognizable under Section 9543(a)(2). The only PCRA category under which this claim could arguably be brought is Section 9543 (a)(2)(ii), which governs '~ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or 4 94-1498 CRIMINAL innocence could have taken place." We have interpreted this to mean that an ineffectiveness claim brought under the PCRA must raise a question of whether an "innocent individual" has been convicted. In the case sub judice, the petitioner has not proven that his appellate counsel's failure to raise four issues before the Supreme Court was ineffective. The Superior Court ruled against the petitioner on ten issues, and appellate counsel chose to bring six of those before the Supreme Court. The petitioner has not shown how this decision by his appellate counsel was ineffective. Moreover, these issues have been "previously litigated" by the Superior Court. Therefore, the petitioner is not entitled to relief on this claim. Third, the petitioner alleges that his collateral-relief counsel was ineffective for failing to amend his original PCRA petition. We also find this claim to be without merit. The petitioner's collateral-relief counsel ensured that he had an opportunity to raise all issues at the PCRA hearing, and the petitioner testified at his hearing that he had raised all the issues he wanted to raise. Therefore, Mr. Anderson's petition was not negatively affected by his counsel's actions. Finally, after his PCRA hearing, the petitioner wrote a letter dated August 27, 1998, and alleged that his trial counsel was ineffective when he failed to object to the District Attorney's statements in his closing argument when he said Mr. Anderson escaped from police custody. The petitioner argues that this was improper because he was not charged with the crime of escape. We believe that this claim is also without merit. When the district attorney said that the petitioner "escaped" police custody, he was only describing the petitioner's actions and his 94-1498 CRIMINAL involvement in the conspiracy to commit robbery. The district attomey did not state that the petitioner had been charged with escape. The petitioner made no mention of this issue at his PCRA hearing or in his peti. tion, and testified at the hearing that he was not aware of any other issues that he wished to raise. The petitioner has not presented any evidence that his trial counsel's failure to object to this statement prejudiced his case. Therefore, we do not believe that the petitioner has sustained his burden of proving that his trial counsel's failure to object to this statement "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.A. Section 9543(a)(2)(ii). ORDER AND NOW, this day of October, 1998, the petition of the defendant for post-conviction relief is DENIED. BY THE COURT, Jaime M. Keating, Esquire Chief Deputy District Attorney James K. Jones, Esquire For the Defendant Scott Anderson Defendant :rlm Kevin A. Hess, J.