Opinion
J-S35018-16 No. 2356 EDA 2015
01-27-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MARQUIS BROWN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered July 21, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0802761-2005 BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J. MEMORANDUM BY BENDER, P.J.E.:
Appellant, Marquis Brown, appeals pro se from the July 21, 2015 order denying his petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The PCRA court summarized the factual and procedural history of this case as follows:
On July 7, 2004, [Appellant] was arrested and charged with possession with intent to deliver a controlled substance (PWID) and conspiracy. From February 13, 2006 to February 15, 2006, a trial was held before this court in the presence of a jury. [Appellant] was represented at trial by Keith Dews, Esquire. During trial, the parties stipulated that, if Han Jong To ("To") were to testify, he would testify that he was employed with the Philadelphia Chemistry Laboratory and that he was an expert in analyzing narcotics and controlled substances. He would further testify that he analyzed the substance contained inside three clear packets recovered from Diane Manely and determined that the substance was heroin. To would further testify that he analyzed the contents of a black plastic bag that was recovered from a blue recycling bin [from which Appellant
was observed retrieving small objects]. To would testify that inside the bag there were 30 packets inside two clear plastic bags which all tested positive for marijuana, two clear packets inside a clear plastic bag which tested positive for cocaine, two blue Ziploc packets which tested positive for cocaine, 20 clear Ziploc packets which tested positive for cocaine, and five clear Ziploc packets inside a green paper candy box which tested positive for cocaine. The parties further stipulated that, if David Wolf ("Wolf") were called to testify, he would testify that he was employed by the Philadelphia Chemistry Laboratory and was an expert in analyzing controlled substances. Wolf would further testify that he analyzed the substance in a clear plastic packet recovered from John Wood ("Wood") and determined that the substance was cocaine. (N.T.[,] 2/14/2006[, at] 126-28).
On February 15, 2006, after the jury had begun their deliberations, this [c]ourt received the following question, "[O]n the charge of possession with intent to deliver, do we need to find the defendant guilty or not guilty with respect to the three drugs separately, i.e. heroin, cocaine, marijuana? Alternatively, can we find the defendant guilty on the charge just based on one of the drugs?" This [c]ourt stated that, as there was only one bill of information for all of the drugs, the jury could find [Appellant] guilty of the charge based upon just one of the drugs. Mr. Dews did not make any argument as to how the jury's question should be answered nor did he object to this [c]ourt's answer. Consequently, this court stated to the jury, "Your alternative is correct. Any one of the three. It doesn't have to be all of the three, it could be any one of the three." On that same day, [Appellant] was found guilty on all charges. (N.T.[,] 2/15/2006[, at] 72-77).
On May 22, 2006, this [c]ourt sentenced [Appellant] to 5 to 10 years['] state incarceration on the PWID charge and 5 to 10 year[s'] state incarceration on the conspiracy charge, to run consecutive to the sentence imposed on the PWID charge for a total aggregate term of 10 to 20 years['] state incarceration. After he was sentenced, [Appellant] stated that he wished to represent himself on appeal and, after conducting an oral colloquy, this court allowed him to represent himself on appeal. Mr. Dews stated that he would file the Notice of Appeal on [Appellant]'s behalf and a motion to withdraw. (N.T. Sentencing[,] 5/22/2006[, at] 17-27, 34). Mr. Dews and [Appellant] subsequently failed to file a direct appeal.
On July 2, 2008, [Appellant] filed a [PCRA] petition ... seeking to have his appellate rights reinstated nunc pro tunc. On July 24, 2009, this court reinstated [Appellant]'s appellate rights nunc pro tunc and, on July 28, 2009, Sondra Rodrigues, Esquire, was appointed as appellate counsel. On August 18, 2009, [Appellant] filed a Notice of Appeal with the Superior Court. On December 17, 2009, this [c]ourt filed its opinion in the matter. On October 4, 2010, the Superior Court affirmed the judgment of sentence. [ Commonwealth v. Brown , 15 A.3d 514 (Pa. Super. 2010) (memorandum opinion).] On November 11, 2010, [Appellant] filed a Petition for Allowance of Appeal with the Supreme Court. On March 30, 2011, the Supreme Court denied [Appellant]'s Petition for Allowance of Appeal. [ Commonwealth v. Brown , 19 A.3d 1049 (Pa. 2011).]
On December 9, 2011, [Appellant] filed a pro se [PCRA] petition.... On March 14, 2012, David Rudenstein, Esquire, was appointed [as Appellant's] PCRA counsel. On August 5, 2013, Mr. Rudenstein filed a Finley letter and a motion to withdraw. On August 28, 2013, Robert Levant, Esquire, entered an appearance as PCRA counsel. On October 1, 2014, Raymond Driscoll, Esquire, filed an amended petition on [Appellant's] behalf, arguing that trial counsel was ineffective for failing to request that this [c]ourt instruct the jury that they must find [Appellant] guilty or not guilty of PWID on each controlled substance that he possessed and for stipulating to the testimony of To and Ford without first consulting [Appellant].
On January 22, 2015, the Commonwealth filed a motion to dismiss. On February 25, 2015, Mr. Driscoll filed a second amended petition on [Appellant]'s behalf, adding a claim based upon the United States Supreme Court's holding in Alleyne v. United States , [133 S.Ct. 2151 (2013).]. On June 19, 2015, the Commonwealth filed an amended motion to dismiss. On June 29, 2015, this [c]ourt sent [Appellant] notice pursuant to [Pa.R.Crim.P.] 907, indicating that his petition would be dismissed due to a lack of merit. On July 10, 2015, [Appellant] filed a response to the 907 notice. On July 21, 2015, after independent review of [Appellant's] pro se petition, PCRA counsel's amended petitions, the Commonwealth's motion to
dismiss, and PCRA counsel's reply to the 907 notice, this [c]ourt dismissed [Appellant]'s petition as without merit. On August 8, 2015, [Appellant] appealed the dismissal of his petition to the Superior Court.PCRA Court Opinion (PCO), 8/28/15, at 1-4.
Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988).
Although still represented by counsel, Appellant's August 8, 2015 notice of appeal was filed pro se. On August 24, 2015, Appellant filed with this Court a request to proceed pro se in this appeal, and Attorney Levant simultaneously filed for leave to withdraw from representing Appellant. Appellant filed a timely, court-ordered, pro se Pa.R.A.P. 1925(b) statement on August 26, 2015. Subsequently, on September 16, 2015, this Court filed the following order:
Upon consideration of the Appellant's "Petition To Withdraw Appearance," filed by Robert Jeremy Levant, Esq., and the pro se request for "Permission to Proceed Pro Se in the Superior Court," and in light of the fact that Appellant is not proceeding in forma pauperis and has expressed his desire to represent himself in this appeal, counsel's request to withdraw is GRANTED and Appellant shall be permitted to proceed pro se. The Prothonotary of this Court is directed to send Appellant a criminal docketing statement and re-establish a docketing statement schedule.Per Curiam Order, 9/16/15, at 1 (single page).
On September 28, 2015, Appellant filed an application to proceed in forma pauperis (but did not therein request the appointment of counsel). He then filed his brief on October 8, 2015. Subsequently, this Court issued the following order:
Upon consideration of the Appellant's pro se September 28, 2015 "Permission To Proceed In Forma Pauperis," and in light of the fact that the PCRA court has not issued a ruling on
Appellant's motion to proceed in forma pauperis docketed in the Court of Common Pleas on August 4, 2015, the Appellant's pro se September 28, 2015 motion is hereby DEFERRED to the PCRA court for disposition within thirty (30) days of the date that this Order is filed. In the event the PCRA court permits Appellant to proceed in forma pauperis, the PCRA court shall also conduct an on-the-record determination as to whether the Appellant's waiver of counsel is knowing, intelligent and voluntary, pursuant to Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998), within thirty (30) days of the date of the in forma pauperis determination. The PCRA court shall provide the Prothonotary of this Court with written notice of its in forma pauperis and any waiver of counsel determination within sixty (60) days of the date that this Order is filed. The existing briefing schedule is VACATED, pending this Court's receipt of the PCRA court['s] determinations. The Prothonotary of this Court is directed to provide copies of the Appellant's September 28, 2015 motion and this Order to the Honorable Genece E. Brinkley.Per Curiam Order, 10/15/15, at 1 (single page).
On January 19, 2016, the PCRA court issued an order permitting Appellant to proceed in forma pauperis and pro se. That order also indicated that Appellant "made a knowing, intelligent and voluntary decision to waive his right to counsel pursuant to" Grazier. Order, 1/19/16, at 1 (single page).
The Commonwealth, after multiple extension requests, filed its brief on June 1, 2016. Appellant filed a timely reply on June 16, 2016. Appellant presents the following claims for our review:
Although Appellant's reply brief was technically due on or before June 15, 2016, it is patently obvious that Appellant must have filed his brief with prison authorities at least one day before that brief was received by this Court. Accordingly, Appellant's reply brief is considered timely by operation of the prisoner mailbox rule, which provides that a court filing is deemed filed on "the date that the appellant deposits [it] with prison authorities and/or places it in the prison mailbox." Commonwealth v. Jones , 700 A.2d 423, 426 (Pa. 1997).
[1.] IS ... APPELLANT'S SENTENCE A NULLITY IN LIGHT OF THIS COURT[']S RULING IN COMMONWEALTH V. NEWMAN [, 99 A.3d 86 (Pa. Super. 2014) (en banc),] IN WHICH THE MANDATORY SENTENCING STATUTES HAVE BEEN FOUND TO BE FACIALLY UNCONSTITUTIONAL?Appellant's Brief, at 7.
[2.] WAS TRIAL COUNSEL INEFFECTIVE FOR STIPULATING TO THE TOXICOLOGY REPORT THEREBY DEPRIVING THE PETITION[ER] OF HIS 6TH AMENDMENT RIGHT TO CONFRONT WITNESSES AGAINST HIM?
Our standard and scope of review of the denial of a timely PCRA petition is as follows:
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal citations omitted).
Appellant's first claim concerns the legality of his sentence. "Application of a mandatory minimum sentence gives rise to illegal sentence concerns, even where the sentence is within the statutory limits." Commonwealth v. Watley , 81 A.3d 108, 118 (Pa. Super. 2013).
Appellant avers that he was sentenced pursuant to 18 Pa.C.S. § 7508(a)(3)(i) (requiring a mandatory minimum sentence of 3 years' incarceration for PWID (cocaine), where the substance weighs between 2-10 grams, and where, "at the time of sentencing the defendant has been convicted of another drug trafficking offense"). Indeed, this Court held in Commonwealth v. Fennell , 105 A.3d 13 (Pa. Super. 2014), that Section 7508 is unconstitutional in its entirety pursuant to Alleyne and Newman. On this basis, Appellant contends we are obligated to remand for resentencing to correct his illegal sentence.
Echoing the opinion of the PCRA court, the Commonwealth counters that: 1) Appellant is not entitled to retroactive relief concerning the unconstitutionality of Section 7508 pursuant to Commonwealth v. Riggle , 119 A.3d 1058 (Pa. Super. 2015) (holding that petitioners are not entitled to the retroactive effect of Alleyne during PCRA proceedings), and 2) Appellant is not entitled to relief because the trial court did not mention the applicable mandatory minimums in its recitation of the reasons it imposed Appellant's aggravated-range sentence (which exceeded the mandatory minimum dictated by Section 7508(a)(3)(i)).
See Commonwealth's Brief, at 9; PCO at 8-9.
See Commonwealth's Brief, at 9; PCO at 9-10.
Regarding the first basis for the PCRA court's rejecting Appellant's illegal sentence claim (and presuming, for the sake of argument, that Appellant was indeed sentenced to a mandatory minimum sentence under Section 7508, as discussed below), the Commonwealth is correct. In Commonwealth v. Ciccone , --- A.3d ----, 2016 Pa. Super. 283, 2016 WL 7217269 (Pa. Super. 2016) (en banc), an en banc panel of this Court held that sentences rendered illegal by Alleyne and/or its Pennsylvania progeny, such as Fennell and Newman , are not subject to retroactive correction under the auspices of the PCRA. Like Ciccone's Alleyne / Newman offending sentence, if Appellant was sentenced under Section 7508, that "sentence was not illegal when imposed, he was sentenced under the [mandatory minimum] statute in justifiable reliance upon existing United States Supreme Court precedent that it was constitutional [in effect at that time of that sentence], and the statute is not a nullity." Ciccone , 2016 WL 7217269 at *5. Accordingly, we are compelled to reject Appellant's argument that the PCRA provides a remedy for an Alleyne / Newman -offending sentence.
Nevertheless, it is not even clear that Appellant was sentenced to a mandatory minimum sentence pursuant to Section 7508(a)(3)(i). As the Commonwealth and the PCRA court indicate, nothing in the trial court's recitation of the reasons for issuing Appellant's consecutive 5-10 year sentences indicates that the court was applying, or that it was compelled to apply, the applicable mandatory minimum sentence dictated by Section 7508(a)(3)(i). See N.T., 5/22/2006, at 17-20. However, we are not at all convinced by the argument that the trial court's failure to expressly indicate its application of a mandatory minimum during sentencing is conclusive evidence that the mandatory minimum did not ultimately apply or that it did not somewhat inform the final sentence, even if that sentence exceeded the mandatory minimum.
Under the framework of Pennsylvania's now-defunct mandatory minimum sentencing schemes, the Commonwealth was required to provide reasonable notice of its intent to seek a mandatory minimum sentence "before sentencing." 18 Pa.C.S. § 7508(b). And when "the Commonwealth ... promptly notified the sentencing court of its intention to seek the mandatory minimum, the sentencing court was without power to sentence [a defendant] to a term of incarceration below the mandatory minimum." Commonwealth v. Smith , 664 A.2d 622, 629 (Pa. Super. 1995).
Thus, under such a scheme, the sentencing court began all deliberations with a sentencing floor that necessarily informed the range of penalties considered. When a court exceeded an applicable mandatory minimum sentence, that may have indicated that the court was inclined to impose that sentence regardless of the applicable mandatory minimum. However, it is also conceivable in such circumstances that a sentencing court constructed the imposed sentence upon a foundation dictated by the mandatory minimum sentence, based on circumstances that deviated from its routine application, and that it may have done so without explicitly saying so when describing the basis for the imposed sentence. For this reason, we reject the Commonwealth's instant argument (and the corresponding reasoning by the PCRA court) that the sentencing court's statements are alone dispositive of whether Appellant was affected by the applicable mandatory minimum set forth by Section 7508(a)(3)(i). However, the court's failure to mention the mandatory minimum statute certainly does constitute some evidence that the mandatory was not applied.
Yet, at that same sentencing hearing, both defense counsel and the district attorney argued that the 3-6 year mandatory sentence applied to Appellant's crimes. See N.T., 5/22/06, at 3-4 (defense counsel's conceding "this was a mandatory case," and asking for the imposition of the mandatory 3-6 years' incarceration); and see id. at 6-7 (district attorney's recommending that the sentencing court exceed the mandatory minimum sentence based on Appellant's prior record and the aggravating circumstances surrounding this offense). This constitutes evidence that the mandatory sentence was invoked and applied, but nevertheless was exceeded by the sentencing court. However, it is also possible that both attorneys were incorrect in asserting the applicability of Section 7508(a)(3)(i), as both may have overlooked whether the Commonwealth had given sufficient notice of its intent to pursue the mandatory minimum sentence for Appellant's offense(s).
Indeed, in our independent review of the record, we cannot find any evidence that the Commonwealth properly invoked the mandatory minimum sentencing statute prior to Appellant's sentencing hearing, as was required under Section 7508(b). There are no docket entries indicating that the Commonwealth intended to proceed under the mandatory minimum, nor is there any notice document in the certified record. Moreover, the sentencing orders in this case both contain boxes in which the sentencing court could have indicated the applicability (or imposition) of a mandatory minimum sentence, but those boxes were not checked on either form.
Based on all of the above circumstances, we are constrained to conclude that Appellant was not sentenced to a mandatory minimum sentence pursuant to Section 7508(a)(3)(i) or, at least, that there is not adequate evidence of record that Appellant was sentenced under that provision. Despite the comments of both attorneys at sentencing, there is no other indication that Appellant was subjected to the now-unconstitutional mandatory minimum sentencing provisions of Section 7508. As such, we must conclude that, even if the PCRA provides retroactive relief from Alleyne / Newman -offending sentences (and it does not), Appellant would still not be entitled to relief, because the record does not adequately support his claim that one was applied to him.
Appellant's second claim concerns his allegation that trial counsel should not have stipulated to the content of the reports which identified one of the seized compounds as powder cocaine, as well the weight of that cocaine. Appellant claims that these stipulations deprived him of his 6th Amendment right to confront the witnesses against him, based on his reading of Melendez-Diaz v. Massachusetts , 129 S.Ct. 2527 (2009).
In reviewing a claim of counsel's ineffectiveness,
[w]e begin with the presumption that counsel rendered effective assistance. To obtain relief on a claim of ineffective assistance of counsel, a petitioner must rebut that presumption and demonstrate that counsel's performance was deficient, and that such performance prejudiced him. Strickland v. Washington , 466 U.S. 668, 687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In our Commonwealth, we have rearticulated the Strickland Court's performance and prejudice inquiry as a three-prong test. Specifically, a petitioner must show: (1) the underlying claim is of arguable merit; (2) no reasonable basis existed for counsel's action or inaction; and (3) counsel's error caused prejudice such that there is a reasonable probability that the result of the proceeding would have been different absent such error. Commonwealth v. Pierce , 515 Pa. 153, 158-59, 527 A.2d 973, 975 (1987).Commonwealth v. Dennis , 17 A.3d 297, 301 (Pa. 2011) (some internal citations omitted).
In Commonwealth v. Yohe , 39 A.3d 381 (Pa. Super. 2012), this Court summarized the ruling in Melendez-Diaz and related Confrontation Clause cases as follows:
The Confrontation Clause in the Sixth Amendment to the United States Constitution applies to both federal and state prosecutions and provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the
witnesses against him...." U.S. Const. amend. IV. The Pennsylvania Constitution likewise provides that, "[i]n all criminal prosecutions the accused hath a right ... to meet the witnesses face to face." Pa. Const. art. I, § 9. To be sure, the Confrontation Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands not that evidence be reliable but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. Commonwealth v. Holton , 906 A.2d 1246, 1252-1253 (Pa. Super. 2006) (citation omitted), appeal denied, 591 Pa. 697, 918 A.2d 743 (2007).
In Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment prohibits the use of testimonial hearsay obtained by police officers against a criminal defendant, even if such hearsay is reliable, unless the defendant has the opportunity to cross-examine the unavailable declarant. Id. at 54, 124 S.Ct. 1354. Later, in Melendez-Diaz ..., the United States Supreme Court addressed the "class of testimonial statements covered by the Confrontation Clause" delineated in Crawford. Melendez-Diaz [, 129 S.Ct.] at 2531. Such testimonial statements included "extrajudicial statements ... contained in formalized testimonial materials, such as affidavits [...] that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id., quoting Crawford , supra at 52, 124 S.Ct. 1354.
In Melendez-Diaz , the defendant objected to the admission of certificates of analysis, describing results of forensic testing that determined certain seized substances to be cocaine. Id. Melendez-Diaz maintained he had a constitutional right to confront the analysts, who should have been required to testify in person. Id. The Supreme Court determined that the certificates of analysis were affidavits made under circumstances leading a reasonable person to believe they would be used at trial. Id. at 2532. Accordingly, the affidavits were recognized as testimonial statements and the analysts who prepared the certificates were recognized as witnesses for the purposes of the Sixth Amendment, who the defendant had a right to confront.
Id. Because that right was not afforded, the certificates were held to be inadmissible. Id. In Melendez-Diaz the prosecution offered no witnesses in support of the proffered certificates.Yohe , 39 A.3d at 384-85 (footnotes omitted).
Instantly, Appellant makes the following argument concerning trial counsel's purported ineffectiveness:
In the instant case, [Appellant] avers that the arresting officers testified that the narcotics seized seemed to be a chunky substance that resembled crumbled drywall. As this testimony cast doubt on the authenticity of the narcotics themselves, and [Appellant] was facing an enhanced sentence based on the weight of the narcotics, [Appellant] avers that it was vital to confront the toxicologist to determine the authenticity of the narcotics themselves. As counsel chose to forego this basic line of defense, and stipulated to the authenticity, he was ineffective and the issue is of arguable merit.
Turning to the second prong of the test. [Appellant] requested that counsel have the toxicologist present to examine him/her as to the findings of the testing of the narcotics. Counsel refused to comply with this request and advised [Appellant] that it was standard operating procedure in Philadelphia to stipulate to the toxicology report. [Appellant] advised counsel that there were discrepancies in the report and the officer's testimony, and was adamant about cross examining the toxicologist, as he was facing an enhanced mandatory sentence if convicted of the weight reported. Counsel ignored this request and entered the stipulation over the objections of [Appellant]. When convicted, [Appellant] did in fact receive an enhanced mandatory sentence based on the weight of the narcotics. Clearly counsel had no reasonable basis for his actions or omissions in stipulating to the report, and the second prong has been met.
The third prong of the test is prejudice. As [Appellant] was unable to challenge the weight and authenticity of the narcotics in question, he was subjected [to] an enhanced mandatory minimum sentence based upon the unopposed weight of the narcotics stipulated to upon conviction. At sentencing, the Commonwealth requested, and received a mandatory minimum sentence based on the weight of the unchallenged narcotics.
Had the weight of the narcotics been challenged, and found to be less tha[n] that stipulated to, [Appellant] would not have been subject to the enhanced sentence and would have received a lighter prison term than he is currently serving. The prejudice prong has been satisfied and ineffective assistance of counsel has been proven which must result in a new trial and/or re-sentencing.Appellant's Brief, at 11.
The PCRA court addressed Appellant's stipulation-related ineffectiveness claim as follows:
The PCRA court addressed other ineffectiveness claims as well in its Rule 1925(a) opinion which have since been abandoned by Appellant.
[Appellant] ... claims that counsel was ineffective for stipulating to the testimony of To and Ford without consulting him first. [Appellant] argued that, by stipulating to the chemical analysis, defense counsel failed to cross-examine To and Ford about a supposed discrepancy between their description of the cocaine as being "off-white chunks" and the arresting officer's testimony that the cocaine was powder cocaine, as opposed to crack cocaine. [Appellant] further argued that, had defense counsel consulted him, he would not have stipulated to their testimony. [T]his claim is without merit. In stipulating to the testimony of To and Ford, trial counsel made a reasonable strategic move to lessen the impact of the otherwise admissible expert testimony that To and Ford could have presented.
Furthermore, [Appellant] has failed to show that he was prejudiced by counsel's stipulation to the testimony or by his alleged failure to consult with [Appellant] prior to stipulating to the testimony. Contrary to [Appellant]'s argument, Officer William Landis ("Landis") testified on cross-examination by Defense Counsel and redirect that powder cocaine, including the cocaine recovered in the instant case, sometimes contained chunks. Thus, the jury already heard the alleged discrepancy and the explanation for it. Consequently, [Appellant] has failed to prove that there is a reasonable likelihood that the jury would have arrived at a different verdict simply by hearing this
testimony for a second time. Moreover, [Appellant]'s claim that defense counsel never consulted him about the stipulation, and that he would not have agreed to the stipulation had defense counsel done so, is belied by his own statement during an oral colloquy later in the trial that he was satisfied with the representation of his lawyer (N.T.[,] 2/15/2006[,] [at] 8). Consequently, [Appellant] has failed ... to prove that the underlying claim had merit, that trial counsel's action or inaction was without a reasonable basis and that he was prejudiced by trial counsel's action or inaction. Therefore, [Appellant] cannot now obtain relief based upon his claims of ineffective assistance of counsel.PCO at 7-8 (citation omitted).
There is a clear discrepancy between Appellant's claim, as articulated in his brief, and the claim addressed by the PCRA court. In his brief, Appellant alleges that he did consult with trial counsel regarding the toxicologists' chemical analysis of the seized substances, but that trial counsel refused to take Appellant's advice not to stipulate to the report. As articulated by the PCRA court, Appellant claimed that he was not consulted at all by trial counsel regarding the decision to stipulate to the report, but if he had been, he would have told counsel not to do so.
After careful review of Appellant's pro se PCRA petition, as well as the two counseled, amended PCRA petitions, we conclude that Appellant has never before alleged that he specifically told counsel not to stipulate, or that he had any discussions with trial counsel on that topic at all at the time of trial. This factual assertion was raised for the first time in this appeal. In the memorandum of law attached to Appellant's pro se PCRA petition, he claimed that trial counsel was ineffective for stipulating to the report based on his Confrontation Clause right, but without any reference to whether or not Appellant was consulted. In the first Amended PCRA petition, the Confrontation Clause claim was restated and elaborated upon by counsel, with the addition of the following sub-argument:
Trial counsel entered into a stipulation with the Commonwealth with ... respect to the contents of the seizure analyses absent any discussion with [Appellant]. [Appellant] would not have agreed to any stipulation in this area as the distinction between the police officers' testimony and the police chemists['] description of the substance at issue was a point of contention throughout the trial.First Amended PCRA Petition, 10/1/14, at ¶ 32 (pages unnumbered). The second amended PCRA petition (in which Appellant's Alleyne claim was first raised) merely restated, verbatim, the ineffectiveness argument set forth in the first amended PCRA petition. Moreover, in Appellant's counseled response to the PCRA court's Rule 907 notice, he (through counsel) restated that "the decision to stipulate to their testimony was made absent Appellant's consent or knowledge." Response to PCRA Court's Rule 907 Notice, 7/10/15, at ¶ 16 (pages unnumbered). Consequently, because Appellant has never before alleged that counsel expressly rejected Appellant's request to counsel to not stipulate to the report, we deem any corresponding arguments waived. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
Nevertheless, Appellant has continued to assert, consistently, that counsel was ineffective for stipulating to the report independent of whether he was consulted in that decision, and Appellant has offered arguments under each of the three prongs of the Strickland test to support that claim. It is well-settled that the failure to prove any one of the three prongs results in failure of the entire ineffectiveness claim. See Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014) ("If a petitioner fails to prove any of these prongs, his claim fails.") (quoting Commonwealth v. Simpson , 66 A.3d 253, 260 (Pa. 2013)).
Turning to the third prong, we largely agree with the PCRA court's analysis that Appellant was not prejudiced by counsel's stipulation. In addition to the reasons set forth by the court above, we note that because we are unable to determine whether the Commonwealth invoked the mandatory minimum sentence based on the weight of the cocaine, it cannot be fairly said that Appellant was prejudiced by counsel's failure to cross-examine the Commonwealth's chemists on that basis. In any event, Appellant has failed to offer any argument regarding how or why the weight determination by the chemists could have been called into doubt through cross-examination.
Appellant has instead focused his arguments on the factual/evidentiary discrepancies regarding the form of the seized cocaine. Those discrepancies that did exist between the report and the statements of Officer Landis had nothing to do with weight of the seized substance, or even whether the substance was, in fact, cocaine, but instead with regard to whether that substance was powder or crack cocaine. Yet, even had the mandatory sentence been applied in this case, powder and crack cocaine are not treated differently under Section 7508(a)(3)(i). Accordingly, Appellant could not have been prejudiced by trial counsel's failure to cross-examine the chemists on that difference. As to whether the seized substance was, in fact, cocaine, Appellant has not pointed to anything in the record that would suggest that the cross-examination of either witness could have possibly demonstrated that it was not. The implicit suggestion that the cross-examination of the chemists would have revealed evidence that directly contradicted this basic finding in the report is specious at best. In sum, Appellant has failed to demonstrate that trial counsel's stipulation prejudiced him. Accordingly, his ineffectiveness claim must fail.
Pursuant to the Anti-Drug Abuse Act of 1986, powder and crack cocaine are treated differently under Federal Law for sentencing purposes. Although that disparity still exists, it was mitigated somewhat pursuant to the 2010 Fair Sentencing Act. However, to this Court's knowledge, Pennsylvania law has never treated these chemically-identical substances differently.
Finally, we address additional arguments/issues raised in Appellant's reply brief. Appellant frames this matter exclusively as one pertaining to trial counsel's ineffectiveness in his principal brief. However, he alters this claim in his reply brief, asserting that he is actually alleging direct appellate counsel's ineffectiveness (because Melendez-Diaz was issued during his direct appeal, and therefore could not provide the basis for an ineffectiveness claim concerning trial counsel's performance, thereby undermining the arguable merit of a claim regarding trial counsel's ineffectiveness). He also adds a corresponding layered-infectiveness claim positing PCRA counsel's ineffectiveness for not raising direct appellate counsel's ineffectiveness in that regard. However, because these distinct ineffectiveness claims were not raised in Appellant's principal brief, we deem them waived. See Commonwealth v. Wharton , 811 A.2d 978, 990 (Pa. 2002) (finding a claim raised for the first time in the appellant's reply brief waived because it was not set forth in the original brief).
The claim of direct appeal counsel's ineffectiveness is that appellate counsel should have sought remand to the trial court during Appellant's direct appeal for the filing of a motion for a new trial based on Melendez-Diaz.
In any event, the issue underlying these additional ineffectiveness claims is whether Appellant was deprived of his 6th Amendment right to confront witnesses when his trial counsel stipulated to the content of the scientific reports identifying the seized substances and their respective weights. Because we conclude that Appellant was not prejudiced by that stipulation, any corresponding ineffectiveness claim rooted in the Confrontation Clause claim must fail. While Appellant may have been entitled to cross-examine the chemists under Melendez-Diaz , the trial court never denied Appellant that right. Appellant must prove prejudice to succeed under Strickland , as the matter of counsel's ineffective stewardship is a distinct harm from a court's refusal to permit cross- examination, and there is no question that counsel may, generally speaking, forgo cross-examination of any witness by stipulation as a strategic matter.
Appellant supplies no argument, whatsoever, that his ineffectiveness claims (in both the principal and reply briefs) do not require a showing of actual prejudice under Strickland. He makes no argument that his claims may be analyzed pursuant to the doctrine set forth in U.S. v. Cronic , 466 U.S. 648 (1984) (holding that that an ineffectiveness claim may be established without a showing of actual prejudice when there is a complete deprivation of counsel or the effective equivalent of that structural error). And, although we cannot find any specific cases on point with regard to whether the Cronic standard applies to Confrontation Clause claims arising under Melendez-Diaz , we do note that the 3rd Circuit has routinely applied harmless error analysis to other Confrontation Clause claims:
The erroneous admission of testimonial hearsay in violation of the Confrontation Clause is "'simply an error in the trial process itself' ... [that] we may affirm if the error was harmless." United States v. Hinton , 423 F.3d 355, 361-62 (3d Cir. 2005) (applying harmless error analysis to a Confrontation Clause challenge); see United States v. Lore , 430 F.3d 190, 209 (3d Cir. 2005) (considering whether an error was harmless beyond a reasonable doubt). "An evidentiary error is harmless only if it is highly probable that the improperly admitted evidence did not contribute to the jury's judgment of conviction." United States v. Lopez , 340 F.3d 169, 177 (3d Cir. 2003) (internal quotation and marks omitted). The Supreme Court has directed us to consider numerous factors in assessing whether the erroneous admission of testimonial evidence in violation of the Confrontation Clause was harmless to the defendant, including the importance of the testimony to the Government's case, the cumulative nature of the evidence, the existence of corroborating evidence, the extent of cross-
examination allowed in the case, and the strength of the Government's case as a whole. See Delaware v. Van Arsdall , 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).U.S. v. Jimenez , 513 F.3d 62, 78 (3d Cir. 2008). Accordingly, even had Appellant argued the applicability of Cronic , there is, to our knowledge, no caselaw supporting the notion that Cronic applies to ineffectiveness claims premised on Confrontation Clause issues.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/27/2017