J-S72043-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : SYLVESTER ANDERSON, : : Appellant : No. 2008 MDA 2015
Appeal from the PCRA Order October 30, 2015, in the Court of Common Pleas of Cumberland County, Criminal Division at No(s): CP-21-CR-0000874-2013
BEFORE: GANTMAN, P.J., DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 16, 2016
Sylvester Anderson (Appellant) appeals from the from the order of
October 31, 2015, which denied his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we
affirm.
A prior panel of this Court summarized the facts underlying this case
as follows.
On March 8, 2013, Carlisle Borough police initiated a traffic stop of Appellant to serve an arrest warrant [for the sale of crack cocaine that had taken place the week prior, and] unrelated to the present case. When Corporal Timothy Groller activated his overhead lights, he observed Appellant turn from the driver’s seat and throw something to the back right of the vehicle, on the passenger’s side. Appellant was alone in the vehicle, which was registered to him.
When the police officers arrested Appellant, they found approximately $2,000.00 on his person, folded in several separate bundles. Detective Christopher S. Collare of the
*Retired Senior Judge assigned to the Superior Court. J-S72043-16
Cumberland County Drug Task Force searched Appellant’s vehicle pursuant to a search warrant and discovered a black knit glove behind the passenger’s side. Inside the glove, he found a zip lock baggie containing six individually packaged glassine bags of heroin totaling .18 grams. Detective Collare did not discover any drug paraphernalia.
Commonwealth v. Anderson, 116 A.3d 691 (Pa. Super. 2014)
(unpublished memorandum at 1-2) (citations omitted).
Appellant was subsequently charged with possession with intent to
deliver (PWID) for the heroin recovered from the backseat of the vehicle.
A jury trial was held from September 11 to 13, 2013. Prior to trial, counsel
for Appellant and the Commonwealth entered into two stipulations designed
to prevent the Commonwealth from mentioning the details surrounding the
arrest warrant. First, the Commonwealth “instructed [its] witnesses to say
[something] along the lines of pursuant to another matter the defendant
was lawfully stopped and taken into custody, and pursuant to a lawful
search of his person the money was found.” N.T., 9/11-13/2015, at 5-6
(emphasis added). It was the Commonwealth’s position that had Appellant
not stipulated to this information, then the details leading to the issuance of
that arrest warrant would be admissible into evidence as res gestae.1
1 The actions leading to the prior arrest warrant would have been subject to Pa.R.E. 404(b), which governs the admissibility of crimes, wrongs, or other acts. One exception to this rule is the res gestae exception, which can be “invoked when the bad acts are part of the same transaction involving the charged crime.” Commonwealth v. Brown, 52 A.3d 320, 332 (Pa. Super. 2012). It was the Commonwealth’s position that the arrest warrant for the sale of crack cocaine would have been admissible under this exception.
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The second stipulation related to the finding of cocaine residue on the
$2,000 found on Appellant. When the Commonwealth performed Ionscan
testing on that money, it tested positive for high amounts of cocaine.
Because the Commonwealth was seeking to prove PWID, the parties agreed
that the detective could testify that “typically street level drug traffickers
don’t only sell one type of drug, and therefore it’s common to find cocaine
on the money.” Id. at 6. Thus, the purpose of both stipulations was to
prevent the Commonwealth from mentioning the fact that Appellant’s prior
arrest warrant was for the sale of crack cocaine.
At trial, witnesses for the Commonwealth testified consistently with the
stipulations. Appellant also testified at trial in his defense.
Appellant testified that he sometimes slept in his car, and kept his valuables there, in order to keep them safe from other boarding house tenants, who often stole his property. However, he denied ownership of the heroin found in his vehicle. Appellant stated that he bundled the money found on him the way he did because it was to be used for separate purposes, and his mother briefly testified that she had given him a total of $5,000.00 for an apartment rental over February and March. Appellant maintained that he was a severe heroin addict, not a drug dealer, although his drug and alcohol evaluation did not show that he had an addiction to heroin.
On rebuttal, and over defense counsel’s objection, the Commonwealth played a prison telephone conversation between Appellant and his aunt in which he unsuccessfully tried to convince her to testify that he was a heroin addict. As explained by the trial court: “In the brief conversation, [Appellant] told his aunt what to say to support his ‘addict defense.’ When she told him she could not say what he wanted, [Appellant] pleaded with her to say it anyway.”
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Anderson, 113 A.3d 691 (Pa. Super. 2014) (unpublished memorandum at
3-4) (citations and footnotes omitted).
In other words, Appellant’s defense was that the heroin found in his
car was not his heroin, and even if it was his heroin, it was for his own use,
not to sell to others. On September 13, 2013, the jury found Appellant
guilty of PWID and possession of a controlled substance. On November 5,
2013, the trial court sentenced him to a term of not less than one nor more
than five years of incarceration, plus fines and costs. The trial court denied
Appellant’s motion to modify his sentence on November 19, 2013, and
Appellant timely appealed.
On December 18, 2014, this Court affirmed Appellant’s judgment of
sentence. Id. Specifically, this Court concluded that the evidence was
sufficient to support Appellant’s PWID conviction; that the verdict was not
against the weight of the evidence; and that the trial court did not err by
admitting the recording of the phone call between Appellant and his aunt.
Id.
On February 27, 2015, Appellant pro se filed a PCRA petition.
Attorney Jacob M. Jividen was appointed to represent Appellant. On May 1,
2015, counsel filed an amended PCRA petition and a petition requesting that
the Commonwealth produce dashboard camera video from the police cars
involved in Appellant’s stop. The Commonwealth responded to Appellant’s
petition for production of the dashboard camera video by filing a brief with
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the PCRA court. Specifically, the Commonwealth averred, inter alia, that it
had requested the video, but learned that there “is no video evidence
available from … the primary police vehicles involved in the traffic stop[.]”
Commonwealth Reply, 6/2/2015, at 1. On July 8, 2015, Appellant filed a
second amended PCRA petition. An evidentiary hearing was held on July 27,
2015. On October 30, 2015, the PCRA court denied Appellant’s petition.
Appellant timely filed a notice of appeal, and both Appellant and the PCRA
court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises numerous issues, which we address
mindful of the following principles. “Our standard of review of a [PCRA]
court order granting or denying relief under the PCRA calls upon us to
determine ‘whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error.’” Commonwealth v. Barndt,
74 A.3d 185, 192 (Pa. Super. 2013) (quoting Commonwealth v. Garcia,
23 A.3d 1059, 1061 (Pa. Super. 2011)).
As some of Appellant’s issues implicate the effective assistance of trial
counsel, we are guided by the following. “It is well-established that counsel
is presumed effective, and the defendant bears the burden of proving
ineffectiveness.” Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
To overcome this presumption, Appellant must show each of the following:
“(1) the underlying substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis for his or
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her actions or failure to act; and (3) the petitioner suffered prejudice as a
result of counsel’s deficient performance.” Id. “Prejudice in the context of
ineffective assistance of counsel means demonstrating there is a reasonable
probability that, but for counsel’s error, the outcome of the proceeding
would have been different.” Commonwealth v. Keaton, 45 A.3d 1050,
1061 (Pa. 2012). Appellant’s claim will be denied if he fails to meet any one
of these three prongs. Id.
Appellant first argues that trial counsel was ineffective in failing to
challenge the validity of the arrest warrant that led to the stop of his vehicle.
Appellant contends that the arrest warrant was invalid because police did not
file a criminal complaint with supporting affidavit prior to the issuance of the
arrest warrant. Specifically, Appellant avers that “he was never charged
with crimes related to a controlled buy of cocaine.” Appellant’s Brief at 20.
The PCRA court concluded that this issue is without arguable merit.
The PCRA court reviewed the docket in a prior case which revealed criminal
proceedings against Appellant at CP-21-CR-0842-2013. PCRA Court Opinion,
10/30/2015, at 7. That docket showed a criminal complaint was filed on
March 7, 2013, for a possessory drug offense occurring on March 2, 2013.
That charge was disposed of at the magisterial district court level on March
23, 2013.
Appellant does not disagree with the existence of this docket, but
argues that it was error for the PCRA court to take judicial notice of this fact.
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Therefore, Appellant suggests that it is not part of the certified record and
cannot be considered by this Court on appeal. Appellant’s Brief at 21.
It is well-settled that a court “may judicially notice a fact that is not
subject to reasonable dispute because it: (1) is generally known within the
trial court’s territorial jurisdiction; or (2) can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.”
Pa.R.E. 201(b). For example, “[c]ourts may take judicial notice of the record
and prior proceedings in the case in which they are currently involved.”
Commonwealth v. Martell, 452 A.2d 873, 875 (Pa. Super. 1982). Thus, a
criminal docket maintained by the clerk of courts may be judicially noticed,
and therefore the PCRA court could properly rely on this information in
reaching its conclusion. Accordingly, we agree with the PCRA court that
there is no arguable merit to Appellant’s position that trial counsel was
ineffective in failing to file a motion challenging the validity of the original
arrest warrant on the basis that no criminal charges had been filed. No
relief is warranted on this issue.
Appellant’s next four issues relate to the absence of dashboard camera
video from the primary police vehicle involved in this case. Appellant’s Brief
at 22-33. By way of background, after Appellant was stopped and arrested
pursuant to the arrest warrant, Appellant’s vehicle was towed to the secure
evidence bay at the police station. N.T., 9/11-13/2015, at 103. Police then
obtained a warrant to search the vehicle based, in part, on the officer’s
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having seen Appellant toss an item over his shoulder. The affidavit of
probable cause for the search warrant provided the following, in relevant
part.
During the first week of March 2013, your affiant did conduct a drug investigation which resulted in the controlled purchase of an illegal schedule II controlled substance. During this controlled purchase which occurred in the Borough of Carlisle in Cumberland County, [Appellant] did sell the illegal controlled substance from inside of his 2002 Ford Escape….
On Friday, March 8, 2013 an arrest warrant was served on [Appellant] at the intersection of Lincoln and College Streets. [Appellant] was observed driving his 2002 Ford Escape … west in the 300 block of Lincoln Street. During the traffic stop Cpl. Groller did observe [Appellant] “toss” an unknow[n] item towards the rear of the passenger compartment of the vehicle. A search incident to arrest did result in almost $2000 in cash being recovered from [Appellant]. [Appellant] is currently unemployed. The money recovered was in wads in the amounts of $180, $190, $200, $220, $400, etc. and were located in the front pants pocket.
Based upon the known drug transaction conducted by [Appellant] that occurred inside of his 2002 Ford Escape …, Cpl. Groller observing [Appellant] “toss” an item inside of the vehicle and the amount and separate denominations of money recovered from [Appellant] incident to his arrest, your affiant is requesting a search warrant for illegal controlled substances, drug paraphernalia, cell phones and other drug related items that may be located inside of the 2002 Ford Escape … belonging to and being driven by [Appellant] at the time of his arrest for an active drug delivery warrant.
Affidavit of Probable Cause, 3/11/2013.
Police conducted the search pursuant to this warrant two days later.
N.T., 9/11-13/2015, at 104. During this search, police viewed a black glove
in plain view on the floor behind the front passenger seat. Inside that glove
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was a clear “plastic sandwich type baggie” containing “six bags of … heroin.”
Id. at 109.
Appellant claims that the failure of the Commonwealth to provide the
dashboard camera video depicting the incident violated his constitutional
rights pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Appellant’s Brief
at 27. Specifically, he argues that this video would have shown that he
never turned around and threw something over his shoulder, which would
have supported his belief “that the drugs were planted in his vehicle once it
got to the impound lot.” N.T., 7/27/2015, at 38.
[Our Supreme] Court has explained that, in order to establish a Brady violation, a defendant must show that: (1) evidence was suppressed by the state, either willfully or inadvertently; (2) the evidence was favorable to the defendant, either because it was exculpatory or because it could have been used for impeachment; and (3) the evidence was material, in that its omission resulted in prejudice to the defendant.
Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012). “The burden rests
with the appellant to prove, by reference to the record, that evidence was
withheld or suppressed by the prosecution.” Commonwealth v. Ovalles,
144 A.3d 957, 965 (Pa. Super. 2016) (internal quotation marks omitted).
At the PCRA hearing, Corporal Groller testified about the existence of
the dashboard camera video. He testified that his vehicle was equipped with
a dashboard camera; however, he opined “that it was not recording. We did
not find a video from that car that night.” N.T., 7/27/2015, at 29. He
testified that despite the department’s policy to destroy evidence after two
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years, there were still videos from the March 2013 time period when he
searched in April of 2015. Corporal Groller found video from other cars
involved in this incident; however, the CD produced from his vehicle had
“nothing on” it. Id. at 31.
Based on the foregoing, it is clear that Appellant has not met his
burden in showing that the evidence was either withheld or suppressed by
the Commonwealth. In fact, the only evidence of record suggests that the
dashboard camera video never existed in the first place. Thus, Appellant is
not entitled to relief on his Brady claim. See Commonwealth v. Tedford,
960 A.2d 1, 31 (Pa. 2008) (holding no Brady violation where “appellant has
not even proven the existence of some of the evidence, such as alleged
undisclosed crime scene drawings, striation analysis, and the UPS log”).
Appellant also contends that trial counsel was ineffective for failing to
request the dashboard camera video. However, because Appellant failed to
establish the evidence existed, there is no arguable merit to this contention,
and counsel could not have been ineffective on this basis.
Appellant next suggests that counsel was ineffective in failing to file a
motion to suppress evidence in this case. Appellant’s Brief at 27-31.
Specifically, Appellant argues that “had counsel attempted to obtain the
dash-cam video, Appellant submits that the video would have negated
probable cause.” Id. at 30. Appellant also suggests that counsel was
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ineffective for failing to investigate the existence of this video in a timely
fashion. Id. at 31-33.
Once again, since the video did not exist, it does not matter when
counsel first requested the video. Moreover, counsel was not ineffective in
failing to file a motion to suppress the evidence on this basis, as the non-
existent video would not have warranted suppression of the heroin. Thus,
these four issues do not warrant relief for Appellant.
Appellant next contends that trial counsel’s “representation was
woefully inadequate” because counsel only “met with Appellant in person
once” and the “only time trial strategy or a defense to the charges was
discussed was the day of trial.” Appellant’s Brief at 33. Appellant also
argues that trial counsel was ineffective by failing to prepare Appellant
adequately for cross-examination because he admitted to buying heroin for
other people.2 Id. at 37-39.
In considering these issues, the PCRA court concluded the following.
While [Appellant] testified extensively that he only met [trial counsel] once to discuss his retainer fee and never discussed his discovery packet or his defense until five minutes before trial, we do not find his testimony credible. “Credibility determinations are the province of the PCRA Court.” Commonwealth v. Battle, 883, A.2d 641, 648 (Pa. Super.
2 Appellant testified that on March 8, 2013, he “was going to get alcohol and some drugs … to do some drugs … to purchase to go get some drugs.” N.T., 9/11-13/2013, at 167. When asked how he buys his heroin, Appellant testified that it “was not just for [him].” Id. at 177. On cross-examination, Appellant testified that when he would purchase heroin, he would often purchase it for someone else. Id. at 186. See also id. at 187 (“[E]very time I go to get heroin, it’s not just for me…. [it’s] for me and a friend.”).
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2005). By contrast, the court finds [trial counsel’s] testimony to be credible. [Trial counsel] testified that he met with [Appellant] three to four times at the prison, set up conversations with [Appellant’s] prison counselor, and took several phone calls from [Appellant] at his office. In total, [trial counsel] spoke with [Appellant] over ten times regarding [Appellant’s] defense strategy. Among other things, [trial counsel] arranged for a polygraph test at [Appellant’s] request, discussed the pre-trial suppression motion, the dashboard camera video, and, reviewed the discovery packet at the prison, during which [Appellant] pointed out that his guideline range was incorrect. On the basis of the [PCRA court’s] credibility determinations, [Appellant’s] claim fails for lack of arguable merit.
***
[Appellant] argues that because [trial counsel] met with [him] once, on the day of trial, he could not have possibly advised [Appellant] that an admission he bought heroin to share with another person would provide enough evidence to convict him. As previously discussed, we do not find [Appellant’s testimony credible. [Trial counsel] testified that he met or spoke with [Appellant] over ten times. In discussing trial strategy, [Appellant] first insisted that he deny that he ever possessed the heroin in his vehicle. The alternative strategy devised was that if [Appellant] did possess the drugs they were for personal use, not distribution. Given this extensive preparation, counsel cannot be held responsible for [Appellant’s] voluntary decision to expand upon his agreed upon trial strategy and make damaging remarks. Moreover, having listened to [Appellant] testify at trial and at the hearing, we submit that Clarence Darrow would have had difficulty prepping him. As is often the case with litigants who attempt to deflect the blame, [Appellant] is and was his own worst enemy.
PCRA Court Opinion, 10/30/2015, at 10-11, 14 (citations to notes of
testimony omitted).
The conclusions of the PCRA court are supported by the record. Trial
counsel testified, as summarized by the PCRA court, that he met with
Appellant “several times at the prison.” N.T., 7/27/2015, at 36. Trial
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counsel spoke to Appellant’s prison counselor and also spoke to Appellant by
phone. Id. at 36-37. Trial counsel testified extensively about his
preparation for this case and the discussions he had with Appellant.
Moreover, as pointed out by the PCRA court, counsel cannot be held
responsible for all of the statements made by Appellant under these
circumstances. Accordingly, we agree with the PCRA court that these claims
lack arguable merit.
Appellant next argues that the PCRA court erred in concluding that trial
counsel was not ineffective in failing to object to certain prejudicial
testimony that focused on the initial stop of Appellant. Appellant’s Brief at
34-37. Appellant argues that it was prejudicial for the jury to hear “that
nine police officers and five police vehicles were used in ‘affecting [sic] a
lawful stop’ of Appellant’s vehicle.”3 Id. at 35. Appellant goes on to argue
that this information left “no doubt [that] the jury believed there was much
more involved in this case than a simple stop of Appellant’s vehicle.” Id.
Appellant also contends that trial counsel was ineffective for not objecting to
Officer Rogers’ testimony where he testified that Appellant was searched
3 At trial, Corporal Groller testified that he was one of eight or nine police officers engaged in the lawful stop. N.T., 9/11-13/2013, at 37. Similarly, Officer David Rogers testified that he was one of “nine officers there.” Id. at 76. In addition, Appellant testified on cross-examination that there were eight officers involved in his arrest. See id. at 169.
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“incident to arrest.”4 N.T., 9/11-13/2013, at 76; see Appellant’s Brief at 37.
In addition, Appellant argues that trial counsel was ineffective in failing “to
move for a mistrial based upon Appellant[’s] admitting during his testimony
that he had been arrested.”5 Appellant’s Brief at 36.
In considering these issues, we bear in mind that “[w]hen it is clear
the party asserting an ineffectiveness claim has failed to meet the prejudice
prong of the ineffectiveness test, the claim may be dismissed on that basis
alone, without a determination of whether the first two prongs have been
met.” Commonwealth v. Wright, 961 A.2d 119, 148 (Pa. 2008). In
addition, “[c]ounsel is not ineffective for failing to raise meritless claims.”
Id. at 149.
In concluding that counsel was not ineffective in failing to object to or
move for a mistrial on the basis of this testimony, the PCRA court pointed
out that “[t]he number of arresting officers and vehicles is simply part of
[the history of the case].” PCRA Court Opinion, 10/30/2015, at 12. Thus,
the PCRA court held that this testimony would have been admissible even
had counsel objected. In addition, the PCRA court held that Officer Rogers’
4 Per the stipulations entered into prior to trial, the Commonwealth’s witnesses were supposed to say that Appellant was lawfully searched, rather than searched incident to arrest. 5 On cross-examination, Appellant answered affirmatively to the Commonwealth’s question asking if “an officer pulled [him] out and arrested [him].” N.T., 9/11-13/2013, at 169.
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testimony was in the context of “discussing the origin of the money in the
greater context of solidifying its chain of custody.” Id. at 13.
We agree with the PCRA court’s conclusions. References to multiple
officers and vehicles being utilized in a lawful stop of Appellant were not so
prejudicial that Appellant is entitled to a new trial. Similarly, two references
to Appellant’s having been arrested are also not so prejudicial as to warrant
a new trial where Appellant was actually on trial because police found heroin
in Appellant’s car. Accordingly, Appellant is not entitled to relief on these
issues.
Appellant next argues that trial counsel was ineffective in failing to
object to allegedly prejudicial Ionscan testimony. Appellant’s Brief at 41. In
considering this issue, it is important to point out that trial counsel entered
into a stipulation with the Commonwealth in order to eliminate the most
prejudicial aspect of the potential testimony, specifically that the arrest
warrant had been issued for the sale of crack cocaine. Thus, the issue to be
considered at this juncture is whether trial counsel was ineffective by
entering into this stipulation in the first place. Appellant has not briefed or
argued this issue. Accordingly, he is not entitled to relief. See
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (“The
failure to develop an adequate argument in an appellate brief may [ ] result
in waiver of the claim under Pa.R.A.P. 2119.”) (internal quotation marks
omitted).
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Furthermore, even if Appellant had presented argument on this issue,
we would not find counsel ineffective. The record is clear that counsel
entered into the stipulation regarding the Ionscan testimony in order to
eliminate the more prejudicial testimony that Appellant was arrested for the
sale of crack cocaine. N.T., 9/11-13/2013, at 6. As this was a reasonable
action on counsel’s part, counsel could not have been ineffective.
Finally, Appellant argues that the PCRA court erred by not concluding
that trial counsel was ineffective for his “failure to adequately argue that the
evidence was insufficient to support Appellant’s [PWID] conviction.”
Appellant’s Brief at 43. However, as the PCRA court points out, trial counsel
did indeed raise this issue in Appellant’s direct appeal. A panel of this Court
concluded that the evidence was sufficient to sustain Appellant’s PWID
conviction. See Anderson, 113 A.3d 691 (Pa. Super. 2014) (concluding that
the evidence was sufficient to sustain Appellant’s PWID conviction where the
Commonwealth proved beyond a reasonable doubt that Appellant
constructively possessed the heroin found in the glove in the vehicle where
Appellant owned the vehicle and was the sole occupant of the vehicle). At
this juncture, Appellant appears to believe that counsel should have argued
other theories to support the argument that Appellant did not constructively
possess the heroin. See Appellant’s Brief at 43 (pointing out that Appellant’s
fingerprints were not found on the glove or heroin). However, these
theories would not have changed the conclusion reached by this Court in
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Appellant’s direct appeal. Accordingly, trial counsel was not ineffective by
not advancing them, and Appellant is not entitled to relief on this basis.
For the foregoing reasons, we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/16/2016
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