NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
DAMON COVINGTON Appellant No. 1908 EDA 2013
Appeal from the PCRA Order February 27, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003053-2010
BEFORE: SHOGAN, J., ALLEN, J., and OTT, J. MEMORANDUM BY OTT, J.: FILED SEPTEMBER 26, 2014 Damon Covington appeals nunc pro tunc from the order entered on
February 27, 2013, in the Philadelphia Court of Common Pleas dismissing his
1
Covington seeks relief from the judgment of sentence of a term five to ten
simple assault and multiple violations of the Uniform Firearms Act. On appeal, Covington raises the following three issues: (1) counsel was ineffective for failing to object to bad character evidence admitted against Covington at trial; (2) counsel was ineffective for agreeing to a constructive
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1 42 Pa.C.S. §§ 9541-9546.
possession charge to the jury; and (3) the PCRA court erred in failing to hold an evidentiary hearing. Based on the following, we affirm.
The underlying convictions stem from a December 31, 2009, incident, in which Covington struck his landlord in the eye with a gun. On October 29, 2010, a jury convicted Covington of simple assault, persons not to possess firearms, carrying a firearm on a public street, and firearms not be carried without a license.2 On January 24, 2011, the trial court sentenced him to a s not to possess
probation for the remaining crimes. Covington filed a post-sentence motion, which was denied on February 1, 2011. He then filed a notice of appeal from the judgment of sentence.3 On December 23, 2011, this Court entered an order, indicating that the direct appeal had been discontinued and
On March 7, 2012, Covington filed a counseled PCRA petition. The Commonwealth filed a motion to dismiss the PCRA petition on October 5, 2012. The PCRA court entered a Pennsylvania Rule of Criminal Procedure
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2 18 Pa.C.S. §§ 2701(a), 6105(a)(1), 6108, and 6106(a)(1), respectively. The jury found Covington not guilty of aggravated assault and possession of an instrument of crime. A charge of recklessly endangering another person, 18 Pa.C.S. § 2705, was nolle prossed. 3 During this time, appointed counsel was relieved and Covington retained private counsel.
3
907 notice of intent to dismiss without a hearing on January 17, 2013. Counsel for Covington filed two responses to the Rule 907 notice on February 8, 2013, and February 15, 2013. By order of the court entered on
Subsequently, on May 24, 2013, Covington filed a motion to reinstate
PCRA appellate rights nunc pro tunc.4 On June 11, 2013, the PCRA court
5
This appeal followed.6
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4 In the motion, counsel indicated that he had informed Covington that he would file a notice of appeal from the dismissal of his PCRA petition but due t See Nunc Pro Tunc, 5/24/2013, at 2. 5 We note that, generally, any request for post-conviction collateral relief will be treated as a PCRA petition, regardless of how an appellant captions the motion. See 42 Pa.C.S. § 9542; Commonwealth v. Kubis, 808 A.2d 196, 199 (Pa. Super. 2002), appeal denied, 813 A.2d 839 (Pa. 2002). requests for reinstatement of appellate rights, including PCRA appellate
Commonwealth v. Fairiror, 809 A.2d 396, 397 (Pa. Super. 2002) (emphasis added), appeal denied, 827 A.2d 429 (Pa. 2003). Under the within one year of the
date the judgment becomes final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition, set
Commonwealth v. Harris, 972 A.2d 1196, 1200 (Pa. Super. 2009) (footnote omitted), appeal denied, 982 A.2d 1227 (Pa. 2009). Moreover, the exceptions must be pled within 60 days of the date the claim could have been presented. See 42 Pa.C.S. § 9545(b)(2). udgment of sentence became final after this Court entered an order, on December 23, 2011, indicating that the direct appeal had been discontinued and withdrawn
a PCRA petition was one year thereafter on December 23, 2012. The present petition, filed on May 24, 2013, therefore, was patently untimely. (Footnote Continued Next Page)
4
Covington raises the following issues in his brief:
1.
impermissible bad character evidence admitted against [Covington] at trial?
2. Was trial counsel ineffective for agreeing to a constructive possession charge to the jury, where the Commonwealth did not even argue constructive possession at trial and such instruction served only to widen the scope of behavior from
firearms in question?
3. Should the PCRA court have granted an evidentiary hearing where disputed issues of fact went unresolved; namely, whether trial counsel had any reasonable, strategic basis for his actions?
supported by evidence of record and
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(Footnote Continued)
Nevertheless, Covington pled and proved the Section 9545(b)(1)(ii)
e of appeal.
See Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (vacating the
failure to file a brief in the initial PCRA appeal). 6 On June 12, 2013, counsel filed a motion to withdraw. The PCRA court granted that motion on June 24, 2013, and appointed new PCRA counsel.
On July 11, 2013, the PCRA court ordered Covington to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Covington filed a concise statement on July 24, 2013. The PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 16, 2013.
5
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted), appeal denied, 54 A.3d 347 (Pa. 2012).
ineffectiveness of counsel, our review is well-settled:
We begin our analysis of ineffectiveness claims with the presumption that counsel is effective. To prevail on his ineffectiveness claims, Appellant must plead and prove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) Appellant
regard to the second, i.e.
conclude that cou
offered a potential for success substantially greater than the i.e., the
prejudice prong, Appellant must show that there is a reasonable probability that the outcome of the proceedings would have been
Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal sh any prong of the test will defeat an Commonwealth v. Keaton, 45 A.3d 1050, 1061 (Pa. 2012) (citations omitted).
for failing to object to prior bad acts evidence. Covington states that during
from [Wilkins] that [Covington] was a problem tenant because of his
Brief at 11, citing N.T., 10/27/2010, at 47. Covington argues that the failure
6
to object to this testimony constituted ineffective assistance of counsel. Moreover, Covington argues the PCRA court erred in finding that the res gestae exception applied to t properly invoked when the bad acts are part of the same transaction
citing Commonwealth v. Brown, 52 A.3d 320, 332 (Pa. Super. 2012), appeal denied, 62 A.3d 377 (Pa. 2013). Covington states his claim has arguable merit because:
[his] alleged prior bad behavior vis a vis his use of alcohol, disobeying rules, and disrespectfulness were not part of the same transaction that involved the crime he was charged with.
related to a time far remote from when the instant crime was alleged to have happened.
Id. (citation omitted). Further, he contends there was no reasonable basis for co
not to have committed the crimes he was cha Id. at 13.
We are guided by the following principles:
Rulings on the admissibility of evidence are within the discretion of the trial judge, and such rulings form no basis for a grant of appellate relief absent an abuse of discretion. While it is true that evidence of prior crimes and bad acts is generally inadmissible if offered for the
character or criminal propensity, the same evidence may be admissible where relevant for another purpose.
Examples of other such relevant purposes include showing
7
the absence of mistake or accident, a common scheme or design, or to establish identity. ... [T]he evidence may also be admitted where the acts were part of a chain or sequence of events that formed the history of the case and were part of its natural development. Of course, in addition to the relevance requirement, any ruling on the admissibility of evidence is subject to the probative value / prejudicial effect balancing that attends all evidentiary rulings.
Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419 (Pa. 2008) (internal citations omitted).
associated exceptions noted in Powell, supra, are set forth in Pa.R.E. 404(b). The res gestae exception, however, does not spring from Pa.R.E. 404. It is a:
crimes may be relevant and admissible ... where such evidence was part of the chain or sequence of events which became part of the history of the case and formed part of the natural development of the facts.
Commonwealth v. Murphy, 346 Pa.Super. 438, 499 A.2d 1080, 1082 (1985), quoting Commonwealth v.
Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932).
This special circumstance, sometimes referred to as the res gestae cription against
i.e., evidence of other criminal acts is
proving its immediate context of happenings near in time and place
Commonwealth v. Lark, 518 Pa. 290, 303, 543 A.2d 491, 497 (1988) (emphasis added).
Commonwealth v. Green, 76 A.3d 575, 583-584 (Pa. Super. 2013) (footnote omitted), appeal denied, 87 A.3d 318 (Pa. 2014).
stimony is as follows:
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Q. After you agreed to take Mr. Covington into your home, to rent a room to Mr. Covington, how long after the conversation with his mother did he come into your house?
A. I believe it was immediately.
Q. And at that time, sir, when he had moved into your home, tell the ladies and gentlemen of the jury how were the first days.
A. First days [were] okay.
Q. What happened next?
A. Then as we went on and on and on, it -- he started getting more controlling, thinking that he can do what he want to do, and disrespectful.
of the jury what you consider his activities to be that were disrespectful to you.
A. Not obeying my rules, drinking, just being disrespectful.
Like, you know, no one can tell him nothing but his mother.
Q. Did he bring people into your home?
A. Yeah.
Q. Who?
A. His girlfriends.
Q. Were there problems when he brought them into your home?
[Defense counsel]: Objection, leading.
THE COURT: Sustained.
[The Commonwealth]. What, if anything, happened when he brought the girlfriends into your home? What, if anything, had happened?
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A. I would have to get involved in his relationships because he would like to think he owned the girls. Then one of --
[Defense counsel]: Objection.
THE COURT: Sustained.
[The Commonwealth]: Did you actually see him do anything in terms of you said you had to break
[Defense counsel]: Objection, Judge.
THE COURT: Wait.
the relevance of this, Judge?
[The Commonwealth]: I think it becomes relevant.
THE COURT: Just ask him a question without suggesting an answer.
[The Commonwealth]: I will.
took place December 31st?
THE COURT: Some background might be appropriate.
[The Commonwealth]: And I think some background --
THE COURT: I think some background is appropriate, not much.
-- is that
what you mean by disrespectful?
A. Yeah.
Q. At some point, sir, did you make up your mind that this could no longer continue?
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A. Yes.
Q. Did you address it with Mr. Covington?
A. Yes.
Q. What, if anything, did you tell him at that point?
appreciate it and at a certain time that he would have to leave and find himself a place to go.
N.T., 10/27/2010, at 46-50.
The PCRA court found counsel was not ineffective for failing to object to the prior bad acts testimony based on the following:
[Covington] claims his trial counsel failed to object to [the
to object to permissible prior act evidence explaining the deterioration of the informal landlord-tenant relationship between the complainant and [Covington] preceding the assault.
See N.T. 10/27/10 at 49 (court expressing appropriateness of limited background information).
Prior to the assault, [Covington] rented a room in the Id. at 47. On the evening in question, [Covington] made an unapproved visit seeking to retrieve some residual personal belongings. Id. at 52. The assault followed
intoxicated, entry into his residence. Id.
events leading to the dissolution of their living arrangement and subsequent assault. Specifically, the complainant indicated that [Covington] did not obey his rules, drank, and was disrespectful.
Id. at 47.
aggressive demeanor immediately preceding the assault.
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Exploring the unsavory dynamic of their relationship formed the natural development of the facts and therefore did not constitute impermissible character evidence. See Commonwealth v.
Dillon, 925 A.2d 131, 137 (Pa. 2007) (citing res gestae exception to Rule 404(b) which allows admission of other crimes evidence when relevant to furnish the context or complete story of events surrounding a crime).
PCRA Court Opinion, 8/16/2013, at 3-4.
tatements about
Covington being disobedient, drunk, and disrespectful were not offered for
natural development of
See Lark, 543 A.2d at 497. Likewise, while Wilkins did not detail specific dates, and discussed the landlord-tenant relationship as lasting a year, his testimony demonstrated ext of happenings near in time and place Id. As such, this evidence was relevant, probative, and formed an integral part of the case history.
Brown, supra, is misplaced as that case is distinguishable from the present matter. There, the defendant was charged with violating 35 P.S. § 780-113(a)(14), relating to his prescription of drugs to six patients between June 1, 2002 and June 30, 2004 while he was a licensed practicing physician. Brown, 52 A.3d at 321. The trial court permitted the Commonwealth to introduce evidence of bad acts occurring in and before 1984 under the common law res gestae exception; specifically,
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his medical degree and license. Id. at 322. On appeal, a panel of this Court explained at length
Pennsylvania Supreme Court precedence with respect to the exception. As pointed out by Covington in this matter, the Brown Court then set forth that
formed the history of the case and were part of its natural development res gestae
admissible. Id. at 326. The Court also outlined the balancing test for determining whether the probative value of the res gestae history evidence outweighs its prejudicial impact, stating:
dence, the similarities between the crimes, the time lapse between crimes, the need for the other crimes evidence,
degree to which the evidence probably will rouse the jury to overmastering h
Id. Applying the test, the Brown Court determined:
[T]he alleged bad acts are so far removed from the charged crimes that it strains credulity to consider them as a natural part of the history, chain, or sequence of events in the case when considering the exception in light of its history. The bad acts do
are they part of the same transaction or interwoven in such a manner that failing to elucidate the jury to the information would render the case unintelligible. The prior alleged crimes are dissimilar in kind and purpose to the drug crimes and have no direct connection to the events that transpired in 2002 through 2004.
Id. at 332.
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Here, distinguishable from the facts in Brown and contrary to
Wilkins, were not so far removed in time from the crimes charged to separate them from the natural history of the present case.7 Moreover, as stated above, the bad acts shed light on the relationship between Covington and the victim, and supplemented the sequence of events. Accordingly, we
PCRA court properly found counsel was not ineffective for failing to object to the prior bad acts evidence.
Next, Covington argues that counsel was ineffective for failing to object to the jury charge on constructive possession. Specifically, he ington]
actually possessed a firearm and used it to strike Wilkins in the face. Though firearms were recovered from the vehicle that [Covington] drove on the night in question, the Commonwealth never argued or implied that [he] constructively possessed th
possess firearms at all, as evinced by its request for the court to re-define
Id. He asserts counsel was ineffective in agreeing to the
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7 Furthermore, we note that counsel did object, and the court sustained the objection, when the Commonwealth tried to introduce evidence related to
relevant to the matter at hand. N.T., 10/27/2010, at 48.
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Commonwealth had not argued constructive possession in its case-in-chief or during closing argument, and (2) the doctrine enlarges the scope of possession to encompass defendants who are not arrested for actual possession of contraband and therefore, counsel expanded the circumstances from which the jury could infer his guilt.
By way of background, Wilkins testified that after Covington hit him in the eye with a hard object, Wilkins observed Covington wrap something up in a white towel and put the item in the trunk of a white Acura. N.T., 10/27/2010, at 60, 64. Wilkins also stated that he saw Covington put a gun in the trunk. Id. Covington was eventually pulled over in the white Acura, with a passenger, and arrested. Police searched the car and seized a black .9 mm Taurus PT111 and a black and brown .32 caliber Duetsche Worker. Id. at 195. During deliberations, the jury asked the court to repeat the key eleme PIC offense. Additionally, the jury inquired what constitutes simple assault and whether possession of an instrument of crime suggests it was used in a crime. N.T., 10/28/2010, at 79. The court indicated that as to the
Id. at 82. Both
counsel agreed the court could instruct the jury on constructive possession. Id. at 82-83. The court then reread all of the elements for the crimes
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charged. Id. at 85-91. With respect to the PIC charge, the court stated, in pertinent part:
First, that the defendant possessed a certain item; that is, a firearm. For a person to possess an item, he or she must have the power to control and the intent to control that item.
And second, that the item was an instrument of crime. An instrument of crime is, A, anything specially made for criminal use; or B, anything specially adapted for criminal use; or C, anything that is used for criminal purposes and possessed by the defendant at the time of the alleged offense under circumstances not manifestly appropriate for lawful uses it may have.
The Commonwealth has charged here that the crime the defendant intended to commit with the instrument alleged was aggravated assault.
Possession defined. Possession means first what it means in ordinary usage; someone is knowingly holding, carrying, or otherwise directly controlling the possession of an item. A person can be guilty of possessing an item even when he or she is not holding it, touching it, or in same area as the item. That type of possession is what the law calls constructive possession.
For there to be constructive possession, it must be proved beyond a reasonable doubt that the individual had both the intent to control the item and the power to control the item.
In determining whether or not the defendant had possession of a firearm, you should consider evidence of all facts and circumstances that may shed light on the question of whether the defendant had the intent to control and the power to control it.
Id. at 89-91.
assistance of counsel claim, we must apply the standard for ineffective
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Commonwealth v. Battle, 883 A.2d 641, 645 (Pa. Super.
2005), abrogated on other grounds by, Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011). Moreover, we note the following:
Commonwealth v.
Johnson, 572 Pa. 283, 313, 815 A.2d 563, 580 (2002). The trial judge has broad discretion to choose the wording by which he explains legal concepts to the jury. Id. We therefore do not
the charge
sufficiently and accurately apprises a lay jury of the law it must Commonwealth v. Jones,
2004 PA Super 331, 858 A.2d 1198, 1200 (Pa. Super. 2004)
(quoting Commonwealth v. Thompson, 543 Pa. 634, 639, 674 A.2d 217, 218-19 (1996)).
Battle, 883 A.2d at 645.
As a prefatory matter, we note the court specifically charged the jury on constructive possession as to the aggravated assault and PIC charges. The jury acquitted Covington of those offenses. Therefore, he has not demonstrated he suffered any prejudice a object to the constructive possession jury instruction. See Spotz, supra.
Moreover, even if one could infer that the constructive possession instruction was imputed to the remaining charges, the PCRA court properly found the following:
Because the jury was properly instructed on the concept of constructive possession, counsel was not ineffective for declining to raise a meritless objection.
guidance regarding the term incorporated a portion of Standard Jury Instruction 16.02(b)A
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which, in part, provides a definition of possessing an item. The
found applicable in light of the testimony elicited at trial.
Specifically, evidence that [Covington] stashed a firearm into the trunk of the vehicle in which he was a passenger supported a determination that his possession of the firearm became constructive at that point in time. T
applicability.
jury instruction, the court was inclined to provide a broad definition of possession in See
ineffectiveness in failing to object to a definition that was appropriate under the circumstances.
PCRA Court Opinion, 8/16/2013, at 5-6 (footnote omitted). As the PCRA court correctly disposed of this issue, we conclude there is no arguable merit ineffective assistance of counsel based on a failure to object to the jury instruction. Accordingly, his second issue fails.
granting an evidentiary hearing pursuant to Pennsylvania Rule of Criminal Procedure 909(B) because genuine issues of material fact exist as to his
following:
An evidentiary hearing is not mandatory for all claims raised in a PCRA petition and [an a]ppellant may not avoid the requirement of setting forth evidence sufficient to establish an issue of See also Pa.R.Crim.P. 909(B) (providing that the PCRA court need only grant a hearing on those issues for which a petitioner raises an issue of material fact).
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Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008), cert. denied, 558 U.S. 1082 (2009). Because Covington failed to raise genuine issues of material fact with respect his ineffective assistance of counsel claims, he was not entitled to a hearing on these issues and the PCRA court committed no error in dismissing the claim. Therefore, his final argument fails.
For the foregoing reasons, we conclude the court did not err in denying
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/26/2014