It’s hard to get post-conviction relief.

Appeals from the denial of post-conviction relief (or PCRA petitions) consume a majority of the Superior Court’s docket.  The disposition of the majority of these appeals generally are unfavorable to the appellant and occur by way of an unpublished memorandum opinion, which has no precedential value.

Over the course of the past couple of days, from March 14 to  March 21, the Superior Court has issued three opinions that have advanced post-conviction law, but not to the benefit of the defendants before the court.  The details of these three cases are not highlighted, but the holdings are.

The first case was out of Allegheny County—Comm. v. Montgomery, 2018 PA Super 54 (Mar. 14, 2018).  This appeal was before an en banc panel of the Superior Court.  The Superior Court directed that counsel address the question of whether a PCRA court possesses subject-matter jurisdiction over a later-filed PCRA petition when a previous PCRA petition, regarding the same judgment, is pending before the PCRA court.  Prior panels of the Superior Court had reached different conclusions on this question.  Here, the Superior Court held as follows: “PCRA courts are not jurisdictionally barred from considering multiple PCRA petitions relating to the same judgment of sentence at the same time unless the PCRA court’s order regarding a previously filed petition is on appeal, and therefore, not yet final.”

The second case was out of Washington County—Comm. v. Smith, 2018 PA Super 60 (Mar. 19, 2018).  This appeal involved multiple claims for post-conviction relief.  They’re as follows.

First, Smith alleged his trial attorney was ineffective for advising him to waive his right to a jury trial and failing to object to what Smith deemed a “defective on-the-record oral colloquy.”  The Superior Court disagreed.  The court found that Smith was informed of the essential elements of a jury waiver—i.e. 1) that a jury is chosen from members of the community, 2) that the jury’s verdict must be unanimous, and 3) that the accused is allowed to participate in the selection of the jury panel. The use of a written jury-trial waiver to explain these essential elements was sufficient to make the waiver good.  Moreover, trial counsel had a reasonable basis to advise Smith to go non-jury because, given the sexual nature of the charges, he perceived a judge would be more capable of being fair since crimes of sexual violence tend to inflame a jury’s passions.

The second issue involved whether trial counsel inaccurately informed Smith that if he testified then his prior criminal history (or bad acts) could be brought up. This issue was resolved on a credibility determination.  Trial counsel had testified at the PCRA hearing that he had advised his client not to testify because he thought he would be a bad witness, and Smith confirmed that trial counsel informed him of as much.  Thus, this issue was denied.

The third and fourth issues involved whether counsel was ineffective for failing to present certain evidence, namely evidence about Smith’s hernia and evidence of text messages that two of the Commonwealth’s witnesses allegedly sent to Smith.  On these issues the PCRA court held, and the Superior Court agreed, that hearing evidence of Smith’s hernia would have had no impact on his convictions because “Smith could still have performed the acts of which he was convicted” even in spite of any physical limitations the hernia presented.  And regarding the text messages, it was hard to find that counsel was ineffective for failing to produce these messages when Smith himself never produced them.  He offered excuses that these messages were on his mom’s computer but she was hardly ever home to retrieve them.  The PCRA court opined: “If Smith truly believed the text messages would support his innocence, he certainly would have found time over the last five years to get the messages and present them to counsel.”

The fifth and six issues were directed to the effectiveness of appellate counsel.  Specifically, Smith complained that appellate counsel failed to properly brief a sufficiency claim on appeal.  Admittedly, appellate counsel confused the distinction between a challenge to the sufficiency of the evidence and the weight of the evidence on appeal, but for post-conviction purposes that was harmless if Smith could not demonstrate he was somehow prejudiced.  In other words, would he have prevailed on a sufficiency claim?  In this regard the Superior Court concluded that the evidence was sufficient to convict Smith; therefore, it really was harmless that appellate counsel botched this claim.  It likewise was not prejudicial that counsel did not challenge the weight of the evidence in a post-sentence motion because, aside from these claims being “one of the least assailable reasons for granting or denying a new trial,” the lower court concluded that the verdict was not against the weight of the evidence; the evidence was not so lacking or flimsy to shock the conscience that Smith had been convicted.

For all these reasons, the Superior Court concluded, appellant was not entitled to post-conviction relief.  Counsel had rendered effective assistance.

Lastly, the third case was out of Erie County—Comm. v. Pier, 2018 PA Super 65 (Mar. 21, 2018).  Here, Pier alleged his attorney for purposes of his nolo contendre plea (or no-contest plea) was ineffective because he did not advise him of the differing legal standards that apply when attempting to withdraw a plea before and after sentencing.  The Superior Court remarked that Pier provided “no authority to support his claim that effective assistance of plea counsel requires a discussion of the nuances of the standards for pre- and post-sentence withdrawal of [a] plea.”  Bearing that in mind, counsel’s assistance was deemed to be effective.