Com. v. Henry, D.
165 EDA 2016
| Pa. Super. Ct. | Sep 22, 2017Background
- On June 22, 2004 William Sizemore was robbed; he was struck in the face, had bleeding and swelling, and two men pointed a shotgun at him while demanding his wallet. Sizemore later identified Dwayne Henry at the scene.
- Police recovered a shotgun in a bag dropped by Henry during his attempt to flee; a co-defendant (King) wore the distinctive jersey seen by the victim.
- A jury convicted Henry of robbery on October 25, 2006; he was sentenced to 7½–15 years plus probation. Direct appeal affirmed; PA Supreme Court denied allowance of appeal.
- Henry filed a PCRA petition (amended multiple times). His first PCRA counsel (Cotter) filed amended petitions but was later challenged for ineffectiveness; subsequent counsel was appointed and withdrew; Henry proceeded pro se at points. The PCRA court dismissed the petition without a hearing; Henry appealed.
- Henry’s claims focused on layered ineffective-assistance-of-counsel: (1) PCRA counsel’s failure to claim appellate counsel was ineffective for not challenging sufficiency of evidence for robbery; (2) failure to assert trial counsel’s ineffectiveness for not objecting to the jury instruction; (3) failure to assert trial counsel’s ineffectiveness for not objecting to alleged hearsay/testimonial evidence; and (4) failure to consult with Henry.
- The Superior Court affirmed dismissal but remanded to correct a clerical error: the judgment of sentence mistakenly cited robbery under § 3701(a)(1)(i) (inflicting serious bodily injury) and must be amended to reflect conviction under § 3701(a)(1)(ii) (threatening/putting in fear of serious bodily injury).
Issues
| Issue | Appellant's Argument | Commonwealth/Respondent's Argument | Held |
|---|---|---|---|
| 1. Whether first PCRA counsel was ineffective for not arguing appellate counsel ineffective for failing to challenge sufficiency of evidence for robbery | Henry: insufficiency because Commonwealth did not prove he inflicted "serious bodily injury" | Record shows threats and pointing of shotgun and physical blows; sufficient evidence for robbery under § 3701(a)(1)(ii); appellate counsel may strategically omit issues | Denied — underlying sufficiency claim lacked merit; layered claim fails |
| 2. Whether trial counsel was ineffective for not objecting to jury instruction on robbery | Henry: instruction improperly emphasized threat rather than infliction so counsel should have objected | Trial court instructed on subsection (ii) (threat/fear), which is what Commonwealth charged and what evidence supported | Denied — instruction proper as given and matched charge/evidence |
| 3. Whether trial counsel was ineffective for not objecting to Detective Casee’s testimony about King showing the crime scene (hearsay/Confrontation Clause) | Henry: testimony was hearsay and "testimonial," so counsel should have objected | Testimony was offered to explain officer’s conduct (non-hearsay purpose) and thus not subject to Confrontation Clause | Denied — testimony admissible for non-hearsay purpose; no arguable merit |
| 4. Whether first PCRA counsel was ineffective for failing to consult with Henry before filing amended petition | Henry: counsel’s lack of consultation produced an incomplete petition | Commonwealth: claim was waived/not developed; Henry gave no specifics tying lack of consultation to prejudice | Denied — claim waived and undeveloped; no established prejudice |
Key Cases Cited
- Abu–Jamal v. Commonwealth, 941 A.2d 1263 (Pa. 2008) (standard of review for PCRA appeals)
- Spotz v. Commonwealth, 84 A.3d 294 (Pa. 2014) (ineffective assistance three-prong test)
- Talbert v. Commonwealth, 129 A.3d 536 (Pa. Super. 2015) (sufficiency standard review)
- Rega v. Commonwealth, 933 A.2d 997 (Pa. 2007) (out-of-court statements admissible to explain officer conduct)
- Rykard v. Commonwealth, 55 A.3d 1177 (Pa. Super. 2012) (layered ineffective-assistance analysis)
- Washington v. Commonwealth, 927 A.2d 586 (Pa. 2007) (when appellate counsel is ineffective for not raising an issue)
- Jette v. Commonwealth, 23 A.3d 1032 (Pa. 2011) (appellate counsel may strategically omit issues)
- Walters v. Commonwealth, 814 A.2d 253 (Pa. Super. 2002) (trial court may correct clerical sentencing errors)
- Michigan v. Bryant, 562 U.S. 344 (U.S. 2011) (Confrontation Clause does not apply when statements offered non-hearsay purposes)