Opinion
J-S62036-15 No. 711 WDA 2015 No. 712 WDA 2015 No. 713 WDA 2015
12-01-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. JERMAINE F. MORGAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order April 21, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001117-2008; CP-65-CR-0003993-2008; CP-65-CR-0003994-2008 BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court. --------
Appellant, Jermaine F. Morgan, appeals from the order entered in the Westmoreland County Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
42 Pa.C.S.A. §§ 9541-9546.
The relevant facts and procedural history of this case are as follows. In January 2008, a confidential informant ("CI") assisted police with an investigation into Appellant's drug related activities. During the course of the investigation, the C.I. engaged in two controlled drug buys with Appellant at Appellant's house on January 21, 2008, and January 29, 2008. Following the second controlled buy between the C.I. and Appellant, police obtained a search warrant for Appellant's house. Patrolman Dennis Pape ("Patrolman Pape") wrote and signed the affidavit of probable cause in support of the search warrant.
On January 31, 2008, police executed the search warrant on Appellant's house and recovered, inter alia, cocaine, marijuana, a firearm, a digital scale, and over one-thousand dollars ($1,000.00). Police subsequently arrested Appellant and the Commonwealth charged Appellant with various drug-related crimes at three separate dockets on October 15, 2008. Specifically, the Commonwealth charged Appellant with the following offenses: at docket no. CP-65-CR-0003994-2008, two counts of PWID, and one count of possession of a controlled substance in connection with the January 21, 2008 controlled buy; at docket no. CP-65-CR-0003993-2008, two counts of PWID, and one count of possession of a controlled substance in connection with the January 29, 2008 controlled buy; and at docket no. CP-65-CR-0001117-2008, one count of receiving stolen property, two counts of possession of a controlled substance with the intent to deliver ("PWID"), two counts of possession of a controlled substance, and one count of possession of drug paraphernalia, in connection with the search of Appellant's house on January 31, 2008.
Appellant proceeded to a jury trial on November 10, 2009. On November 17, 2009, the jury convicted Appellant of all charged offenses at all three dockets. The court sentenced Appellant to an aggregate term of five (5) to ten (10) years' imprisonment on March 16, 2010. After the court denied Appellant's post-sentence motions, Appellant timely filed a notice of appeal on April 1, 2011. This Court affirmed Appellant's judgment of sentence on April 11, 2012, and our Supreme Court denied allowance of appeal on February 28, 2013. See Commonwealth v. Morgan , 48 A.3d 475 (Pa.Super. 2012), appeal denied, 619 Pa. 689, 63 A.3d 776 (2013).
Appellant timely filed a pro se PCRA petition on August 19, 2013. The court appointed counsel ("PCRA counsel") on November 12, 2013. On February 7, 2014, PCRA counsel filed an amended PCRA petition, in which Appellant claimed trial counsel was ineffective. The court held a hearing on Appellant's ineffective assistance of counsel claims on August 26, 2014, and the court denied PCRA relief on April 21, 2015. Appellant timely filed a notice of appeal on April 30, 2015. On May 4, 2015, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on May 14, 2015.
Appellant raises the following issues for our review:
WHETHER THE [TRIAL COURT] ERRED IN FAILING TO FIND [APPELLANT'S] TRIAL COUNSEL INEFFECTIVE FOR FAILING TO INVESTIGATE AND EXPLORE THE PERSONAL ANIMUS OF ARRESTING OFFICER, DENNIS PAPE[?](Appellant's Brief at 5).
WHETHER THE [TRIAL COURT] ERRED IN FAILING TO FIND [APPELLANT'S] TRIAL COUNSEL INEFFECTIVE FOR FAILING TO CALL WITNESS DEONNA WILLIAMS[?]
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a PCRA court's credibility determination, it is binding on the appellate court. Commonwealth v. Miller , 102 A.3d 988 (Pa.Super. 2014).
The law presumes counsel has rendered effective assistance. Commonwealth v. Williams , 597 Pa. 109, 950 A.2d 294 (2008). When asserting a claim of ineffective assistance of counsel, the petitioner is required to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and, (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball , 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Williams , supra.
"The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit...." Commonwealth v. Pierce , 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). "Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Commonwealth v. Poplawski , 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the 'reasonable basis' test to determine whether counsel's chosen course was designed to effectuate his client's interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel's assistance is deemed effective.Pierce , supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates that counsel's chosen course of action had an adverse effect on the outcome of the proceedings. The [appellant] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In [ Kimball , supra ], we held that a "criminal [appellant] alleging prejudice must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."Commonwealth v. Chambers , 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002) (some internal citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reason opinion of the Honorable Debra A. Pezze, we conclude Appellant's first issue on appeal merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed April 21, 2015, at 1-2) (finding: at PCRA hearing, Appellant alleged Patrolman Pape told Appellant's ex-girlfriend that Appellant was just another drug dealer that Patrolman Pape could put in jail if he wanted to; Appellant also testified that he informed trial counsel of Patrolman Pape's animus toward Appellant, but trial counsel failed to cross-examine Patrolman Pape with this information at trial; trial counsel provided testimony at PCRA hearing, in which trial counsel stated he did not recall Appellant ever telling trial counsel about Patrolman Pape's alleged animus toward Appellant; trial counsel also testified he felt he had vigorously cross-examined Patrolman Pape at trial; trial counsel further indicated he would have brought up Patrolman Pape's alleged animus toward Appellant if Appellant had informed trial counsel of it; PCRA court noted Patrolman Pape was merely one of many police officers involved in Appellant's case, so trial counsel's failure to explore alleged animus did not unfairly prejudice Appellant; Appellant's ineffective assistance of counsel claim against trial counsel warrants no relief). With respect to Appellant's first issue, we affirm on the basis of the trial court's opinion.
In his second issue, Appellant argues trial counsel failed to offer sufficient evidence to support the defense's theory of the case. Appellant maintains trial counsel's defense theory was that the house searched by police was not Appellant's residence, and the drugs found inside the house did not belong to Appellant. Appellant contends trial counsel merely offered character evidence at trial, even though various witnesses, including Deonna Williams, Meghan Milliron, Gina Hershey, and several of Appellant's cousins, were willing to provide testimony in support of this defense. Appellant also complains that trial counsel erroneously convinced Appellant not to testify on his own behalf. Appellant asserts his own testimony was necessary for the defense strategy to succeed, and there was no valid reason for Appellant not to testify, because Appellant had no criminal history at the time. Appellant concludes trial counsel's failure to call certain witnesses, including Appellant, constituted ineffective assistance of counsel, and this Court should grant relief. We disagree.
A petitioner's claim that counsel was ineffective for failing to call a particular witness, requires certain proof:
[T]he [petitioner] must show: (1) that the witness existed; (2) that the witness was available; (3) that counsel was informed of the existence of the witness or should have known of the witness' existence; (4) that the witness was prepared to cooperate and would have testified on [petitioner's] behalf; and (5) that the absence of the testimony prejudiced [petitioner].Commonwealth v. Michaud , 70 A.3d 862, 867-68 (Pa.Super. 2013). Significantly, a court shall not find trial counsel ineffective for failure to call a witness unless there is some showing by the petitioner that the witness' testimony would have been beneficial under the circumstances of petitioner's case. Commonwealth v. Auker , 545 Pa. 521, 548, 681 A.2d 1305, 1319 (1996). "[F]ailure to call a witness is not per se ineffective assistance of counsel for such decision usually involves matters of trial strategy." Michaud , supra at 868.
To be eligible for relief under the PCRA, a petitioner must plead and prove, inter alia, his allegations of error were not previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). "[A]n issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S.A. § 9544(b). Likewise, the failure to raise an issue before the PCRA court deems the claim presented waived. Commonwealth v. Bond , 572 Pa. 588, 819 A.2d 33 (2002). See also Pa.R.A.P. 302(a) (stating issues not raised in PCRA court are waived and cannot be raised for first time on appeal). Significantly, "the failure to raise an issue in an ordered Rule 1925(b) statement results in the waiver of that issue on appeal." See Commonwealth v. Poncala , 915 A.2d 97, 100 (Pa.Super. 2006), appeal denied, 594 Pa. 678, 932 A.2d 1287 (2007).
Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure provides:
Rule 2119. ArgumentPa.R.A.P. 2119(a). Additionally, Rule 2101 states:
(a) General rule. The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part—in distinctive type or in type distinctively displayed—the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.
Rule 2101. Conformance with Requirements
Briefs and reproduced records shall conform in all material respects with the requirements of these rules as nearly as the circumstances of the particular case will admit,
otherwise they may be suppressed, and, if the defects are in the brief or reproduced record of the appellant and are substantial, the appeal or other matter may be quashed or dismissed.Pa.R.A.P. 2101. Importantly:
The argument portion of an appellate brief must include a pertinent discussion of the particular point raised along with discussion and citation of pertinent authorities. This court will not consider the merits of an argument which fails to cite relevant case or statutory authority. Failure to cite relevant legal authority constitutes waiver of the claim on appeal.In re Estate of Whitley , 50 A.3d 203, 209 (Pa.Super. 2012), appeal denied, 620 Pa. 724, 69 A.3d 603 (2013).
Instantly, Appellant failed to raise in his Rule 1925(b) statement, his claim that trial counsel was ineffective for failure to call Ms. Hershey, Ms. Milliron, and several of Appellant's cousins as witnesses at trial. Additionally, Appellant failed to allege in his Rule 1925(b) statement, that trial counsel was ineffective based on trial counsel's advice to Appellant not to testify on his own behalf. Importantly, Appellant's failure to raise these issues in his Rule 1925(b) concise statement constitutes waiver of these claims. See Poncala , supra.
With respect to Appellant's claim that trial counsel was ineffective for failure to call Deonna Williams as a witness, Appellant did not separate his issues raised on appeal in the argument section of his brief as necessary to comply with the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. 2119(a). Appellant's argument section of his brief also fails to include any relevant case law to support this claim. Likewise, Appellant's argument does not address any of the factors necessary to prove ineffective assistance of counsel for failure to call a witness. Appellant's failure to develop his claim properly constitutes waiver of this claim as well. See In re Estate of Whitley , supra.
Moreover, even if Appellant had properly preserved his claim involving Ms. Williams, the trial court determined this issue lacked merit, reasoning:
The witness in question, Deonna Williams, testified at [Appellant's] evidentiary hearing and stated she was willing to testify at [Appellant's] trial. More specifically, she stated "his old attorney I spoke to saying I would be willing to testify." She later testified that she never actually spoke to [Appellant's] trial [counsel], but left a message on a machine that she believed was his office voicemail. Nevertheless, she elicited that she occasionally cleaned the house where it was alleged [Appellant] resided and where the drugs were found. She said it was a "party house" and although [Appellant] was the leaseholder, she thought he lived at his girlfriend's or cousin's house. The [c]ourt finds that prongs one, two, and four were met in establishing whether counsel was ineffective for failing to call a witness.
Trial counsel...testified that he had no recollection of [Appellant] discussing Deonna Williams as a possible witness, nor was there any mention of her in the notes he kept during the interim of the case. During cross-examination by the Commonwealth, [trial counsel] was informed that Ms. Williams had been convicted of several crimes of dishonesty in the past ten years and [when asked at the PCRA hearing] whether this fact would have factored in [trial counsel's] decision on whether to call her as a witness...[trial counsel] responded in the affirmative stating that he "would have been less inclined to call her as a witness because of [this] credibility issue...." Though the [c]ourt finds [trial counsel's] testimony credible, the [c]ourt is mindful of the fact that approximately five years
have passed since [Appellant's] trial and that having vivid recollections of all attorney-client conversations would be a near impossibility.(Trial Court Opinion, filed April 21, 2015, at 3-4) (internal citations omitted). The record supports the court's sound reasoning. See Conway , supra. Therefore, Appellant's second issue warrants no relief. Accordingly, we affirm.
[Appellant] testified at the PCRA [h]earing that he talked to [trial counsel] about many possible witnesses; however, the only witness that can be considered by this [c]ourt in [Appellant's] claim for ineffective assistance of counsel is [Ms.] Williams, due to the fact that she was the only prospective witness that was called to testify during the PCRA [h]earing and the only witness mentioned in [Appellant's] amended PCRA petition. [Appellant] further testified that "he discussed [Ms.] Williams briefly with [trial counsel], but only because she was there cleaning." Due to the sparse nature of [Appellant's] testimony relative to his conversation with trial counsel regarding Ms. Williams and due to the minimal testimony that Ms. Williams stated she would have provided, the [c]ourt finds that even if [Appellant] made mention of the aforementioned witness to trial counsel, the fact that she was not called as a witness was not so prejudicial to [Appellant's] case as to deny him a fair trial.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/01/2015
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