Com. v. Crumpler, L.

• Court: Superior Court of Pennsylvania
• Decided: June 28, 2019
• Docket: 27 MDA 2019
• Status: Unpublished

Opinion

J-S25035-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LAMAR SHAREEF CRUMPLER, : : Appellant : No. 27 MDA 2019

Appeal from the PCRA Order Entered December 3, 2018 in the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0001569-2014

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 28, 2019

Lamar Shareef Crumpler (“Crumpler”) appeals from the Order

dismissing his Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

This Court previously set forth the relevant factual and procedural

history as follows:

State Trooper Rodney Fink [(“Trooper Fink”)] utilized a confidential informant [(“CI”)] to conduct a controlled purchase of heroin from [Crumpler] in Franklin County on July 24, 2014, and August 5, 2014. As a result, Trooper Fink executed a search warrant at [Crumpler’s] home on August 6, 2014, and recovered two firearms, heroin and marijuana packaged for sale, drug paraphernalia, and over $12,000.00.

The Commonwealth charged [Crumpler] with two counts each of persons not to possess firearms, delivery of a controlled substance, possession with intent to deliver a controlled substance (“PWID”), [and] criminal use of a communication facility, and one count of [possession of] drug paraphernalia. On July 27, 2015, [Crumpler] pled guilty to the seven drug-related counts and received a trial date for his two firearms charges. The [trial] court J-S25035-19

sentenced [Crumpler,] on September 2, 2015, to an aggregate term of four (4) to eight (8) years’ imprisonment for the drug convictions. [Crumpler] did not file a direct appeal. Instead, on June 10, 2016, [Crumpler] timely filed a pro se PCRA [P]etition related to the drug convictions.

On July 5, 2016, [Crumpler] proceeded to a jury trial on his two firearms charges. ... [A Newark Police Department detective] established that [Crumpler] had pled guilty to [PWID in New Jersey in February 2001].

The jury convicted [Crumpler] of both counts of persons not to possess firearms. On August 10, 2016, the court sentenced [Crumpler] to an aggregate term of five (5) to ten (10) years’ imprisonment for the firearms convictions. [Crumpler] timely [appealed.] Around the same time, [Crumpler] filed a [M]otion to withdraw his pro se PCRA [P]etition, which the court granted, and reinstated his direct appeal rights[,] nunc pro tunc[,] from his September 2, 2015 judgment of sentence. [Crumpler] timely filed an amended [N]otice of appeal on September 20, 2016, to include his September 2, 2015 judgment of sentence. …

Commonwealth v. Crumpler, 169 A.3d 1188 (Pa. Super. 2017)

(unpublished memorandum at 1-3). On appeal, Crumpler challenged only the

judgment of sentence imposed for his persons not to possess firearms

convictions, which this Court affirmed on April 19, 2017. See id. (unpublished

memorandum).

Crumpler, pro se, filed the instant timely PCRA Petition on September

8, 2017. The PCRA court appointed Crumpler counsel, who filed two Amended

Petitions on his behalf. The PCRA court conducted an evidentiary hearing, and

subsequently dismissed Crumpler’s Petition on December 3, 2018. Crumpler

thereafter filed the instant timely appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal.

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Crumpler now raises the following issues for our review:

1. The PCRA [c]ourt erred by denying [Crumpler’s] claim that counsel was ineffective by failing to adequately object to[,] or to attempt to exclude[,] evidence of a prior criminal conviction in New Jersey, and to then fail to properly develop the issue on appeal[?]

2. The PCRA [c]ourt erred by denying [Crumpler’s] claim that by failing to challenge/file a motion to suppress related to the probable cause [A]ffidavit in the application for the search warrant of [Crumpler’s] residence, counsel was ineffective at the pre-trial stage of this matter[?]

3. The PCRA [c]ourt erred by denying [Crumpler’s] claim that counsel was ineffective by opening the door to permit the Commonwealth to present evidence of [Crumpler’s] testimony and conduct at a separate forfeiture proceeding[?]

Brief for Appellant at 6.

Crumpler’s issues challenge the effectiveness of his prior counsel. The

applicable standards of review regarding the dismissal of a PCRA petition and

ineffectiveness claims are as follows:

Our standard of review of a PCRA court’s [dismissal] of a petition for post[-]conviction relief is well-settled: We must examine whether the record supports the PCRA court’s determination, and whether the PCRA court’s determination is free of legal error. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.

***

It is well-established that counsel is presumed to have provided effective representation unless the PCRA petition pleads and proves all of the following: (1) the underlying legal claim is of arguable merit; (2) counsel’s action or inaction lacked any objectively reasonable basis designed to effectuate his client’s interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome if not for counsel’s

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error. The PCRA court may deny an ineffectiveness claim if the petitioner’s evidence fails to meet a single one of these prongs. Moreover, a PCRA petitioner bears the burden of demonstrating counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations

omitted).

In his first claim, Crumpler argues that trial counsel was ineffective for

failing to attempt to exclude evidence of his prior criminal conviction in New

Jersey. Brief for Appellant at 13. Crumpler also argues that direct appeal

counsel was ineffective for failing to properly develop such claim on appeal.

Id. According to Crumpler, the testimony concerning his prior conviction,

which spanned 15 pages of trial testimony, was “considerably more” than a

mere admission of a specific predicate offense. Id. at 14.1

While challenging direct appeal counsel’s failure to develop this issue on

appeal, Crumpler continues to present this claim for review with only minimal

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1 We observe that Crumpler’s first claim is not specifically raised in his Concise Statement. See Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues not included in the Statement … are waived.”); see also Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (stating that a concise statement “must be specific enough for the trial court to identify and address the issue an appellant wishes to raise on appeal.” (citation, quotation marks and brackets omitted)). Instead, Crumpler’s Concise Statement includes a general allegation that counsel “was ineffective for failing to preserve the issues raised on appeal by not developing the issues in his [b]rief ..., thereby resulting in waiver….” Concise Statement, 1/22/19. However, the PCRA court was able to ascertain that Crumpler intended to challenge direct appeal counsel’s failure to develop his claim that he was unfairly prejudiced by testimony concerning his prior conviction. See PCRA Court Opinion, 1/28/19, at 5-6. Thus, we decline to deem Crumpler’s first issue waived on this basis.

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development, and a hurried discussion of the prongs of the ineffectiveness

test. See 1925(a) Opinion, 1/28/19, at 6 (stating that “[e]ven if there had

been an issue to develop during [Crumpler’s] appeal as of right, [Crumpler]

also failed to develop the issue with a collateral attack in his subsequent PCRA

[P]etition.”). Additionally, Crumpler baldly claims that he was prejudiced by

the lengthy discussion of his prior offense, but fails to argue that the outcome

of the proceedings would have been different but for counsel’s alleged failures.

See Franklin, supra. We will nevertheless address whether Crumpler’s first

claim has arguable merit.

“Relevance is the threshold for admissibility of evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015); see also

Pa.R.E. 402. “Evidence is relevant if it has any tendency to make a fact more

or less probable than it would be without the evidence[,] and the fact is of

consequence in determining the action.” Pa.R.E. 401. However, “[t]he court

may exclude relevant evidence if its probative value is outweighed by the

danger of … unfair prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, or needlessly presenting cumulative evidence.” Pa.R.E.

403; id., cmt. (explaining that unfair prejudice is “a tendency to suggest

decision on an improper basis or to divert the jury’s attention away from its

duty of weighing the evidence impartially.”). Further, in a persons not to

possess firearms case, a defendant does not suffer “unfair prejudice merely

by the admission into evidence of his or her certified conviction of a specific,

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identified, predicate offense, which has been offered by the Commonwealth to

prove the prior conviction element of [18 Pa.C.S.A. §] 6105 [(persons not to

possess firearms)].” Commonwealth v. Jemison, 98 A.3d 1254, 1262 (Pa.

2014).

At trial, counsel objected to the introduction of Crumpler’s prior

conviction as evidence only on the basis of relevance. On appeal, this Court

affirmed the trial court’s determination that evidence of Crumpler’s New

Jersey conviction was relevant for purposes of establishing Crumpler’s identity

(he had used an alias in the New Jersey criminal event), and establishing the

New Jersey conviction as a qualifying predicate offense for purposes of Section

6105. See Crumpler, supra (unpublished memorandum at 11-12). Our

review of the transcripts reveals that the Newark detective’s testimony

pertained only to Crumpler’s New Jersey conviction, the relevant state

statutory definition of the offense and the applicable sentencing scheme, and

Crumpler’s use of an alias during the commission of the crime. See N.T.,

7/5/16, at 17-32; see also Jemison, supra. Further, the Newark detective’s

testimony was not used as evidence of Crumpler’s bad character or propensity

to commit crime, nor did it have a tendency to suggest that the jury render

its decision on an improper basis. See generally Jemison, 98 A.3d at 1262

(concluding that jury instruction directing the jury to consider defendant’s

prior offense only as evidence to establish the prior conviction element

mitigated any possibility of unfair prejudice); see also Pa.R.E. 403, cmt.

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Thus, as Crumpler failed to establish that his underlying claim is of arguable

merit, he is not entitled to relief on this claim.

In his second claim, Crumpler contends that trial counsel was ineffective

for failing to file a motion to suppress, challenging the Affidavit of probable

cause supporting the search warrant for his residence. Brief for Appellant at

16. Crumpler argues that the controlled purchase of heroin at an “undisclosed

location” was insufficient to establish probable cause to believe that

possession and distribution of heroin was occurring at Crumpler’s residence.

Id. at 16-17. According to Crumpler, the police did not observe any criminal

activity at his residence. Id. at 17.

Here, Crumpler has failed to show that the underlying claim, i.e., that

the search warrant was not supported by probable cause, is of arguable merit.

The PCRA court addressed this claim as follows:

[T]he [A]ffidavit in the instant case contains detailed information that [Crumpler’s] residence was used in the commission of the crimes charged. In the instant case[,] a [CI] was used to conduct controlled buys. The [A]ffidavit indicates that the CI called [Crumpler] to effectuate the purchase of heroin. Law enforcement officers observed [Crumpler] leaving his residence … shortly thereafter. [Crumpler] then met with the CI, sold the CI heroin, and returned to his residence…. [Additionally,] the [A]ffidavit of [P]robable [C]ause in the instant case indicates that the police actually observed [Crumpler] departing his residence shortly after being contacted by the CI[,] and the police also observed him returning to his residence after selling heroin to the CI. The [c]ourt finds that … the evidence provided in the [A]ffidavit in the instant case did give rise to probable cause to search [Crumpler’s] home. …

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PCRA Court Opinion and Order, 12/4/18, at 11-12 (citations to record and

paragraph breaks omitted). Regarding the July 2014 controlled buy, our

review of the Affidavit of Probable Cause attached to the search warrant

application confirms that the CI called Crumpler to arrange a meeting; shortly

after the phone call, police surveillance units observed Crumpler riding a

bicycle near his residence; police observed Crumpler’s meeting with the CI;

and surveillance units observed Crumpler enter the fenced yard on the south

side of the residence. See Affidavit of Probable Cause, 8/6/14, at 2. Further,

regarding the August 2014 controlled buy, our review likewise confirms that

the CI called Crumpler to arrange a meeting; within minutes of the phone call,

surveillance units observed Crumpler leave the residence and meet with the

CI; following the arranged meeting, surveillance units observed Crumpler

enter the fenced yard on the south side of the residence, and re-enter the

house. See id. We therefore agree with the PCRA court’s determination that

the factual recitation contained in the Affidavit of Probable Cause was

sufficient to establish a nexus between Crumpler’s residence and the drugs

purchased, and that the search warrant was supported by probable cause.

See Commonwealth v. Clark, 28 A.3d 1284, 1292 (Pa. 2011) (concluding

that search warrant for defendant’s residence was supported by probable

cause, where police observed defendant leaving his residence, conducting the

controlled buy, and returning to his residence, consistent with information

provided by a CI). Thus, Crumpler is not entitled to relief on the basis that

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trial counsel was ineffective for failing to raise this claim in a motion to

suppress.

In his third claim, Crumpler asserts that the PCRA hearing brought to

light “newly discovered” information, i.e., that trial counsel had “opened the

door” to the admission of statements made by Crumpler in an unrelated

forfeiture proceeding. Brief for Appellant at 19. Crumpler claims that the

evidence was prejudicial because it made the jury aware of additional

firearms. Id. at 19-20.

Crumpler failed to raise this claim in his Concise Statement, and

therefore, it is waived. See Pa.R.A.P. 1925(b)(4)(vii); see also

Commonwealth v. Berry, 877 A.2d 479, 485 (Pa. Super. 2005) (stating that

any issues not raised in a Rule 1925(b) concise statement are waived on

appeal). Additionally, Crumpler fails to fully develop this claim by pointing to

the relevant portions of the trial and PCRA hearing testimony. See Pa.R.A.P.

2119(a) (requiring that each point in an argument contain “such discussion

and citation of authorities as are deemed pertinent.”); see also

Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014)

(concluding that appellant waived his claim by failing to adequately develop

his argument or provide citation to and discussion of relevant authority).

Based upon the foregoing, we affirm the PCRA court’s Order dismissing

Crumpler’s Petition.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/28/2019

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