Com. v. Ellis, J.

• Court: Superior Court of Pennsylvania
• Decided: March 9, 2021
• Docket: 968 EDA 2020
• Status: Unpublished

Opinion

J-S52007-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUSTIN ELLIS : : Appellant : No. 968 EDA 2020

Appeal from the PCRA Order Entered March 2, 2020 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006934-2015

BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, P.J.: FILED MARCH 9, 2021

Justin Ellis, pro se, appeals from the order dismissing his first petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546. In his petition, Ellis presents three separate instances where he

claims his trial counsel was ineffective. In addition, Ellis contends that the

Commonwealth engaged in prosecutorial misconduct. We affirm.

Preliminarily, we note that most of the factual and procedural history of

Ellis’s case can be found in his direct appeal. See Commonwealth v. Ellis,

3146 EDA 2016, 2018 WL 4062300 (Pa. Super. Aug. 27, 2018). Briefly, after

being advised of a vehicle with a suspended registration, a police officer pulled

over Ellis’s vehicle operated which matched the description. Ellis had a

passenger with him at the time. The officer subsequently determined that both

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 Former Justice specially assigned to the Superior Court. J-S52007-20

the vehicle’s registration and Ellis’s driver’s license were suspended.

The officer informed Ellis that his vehicle would have to be towed due to

these violations as well as the fact that the vehicle was stopped in an active

construction zone. The officer allowed Ellis to extract personal items from the

vehicle. The officer, apparently aiding Ellis in this endeavor, opened the

vehicle’s glove box, took out a gold watch, and handed it to Ellis. When the

officer attempted to close the glove box, he was obstructed from doing so by

a piece of plastic affixed to the glove box’s back wall. The officer pulled down

this piece of plastic and uncovered two illicit firearms.

Upon finding those weapons, the officer detained Ellis. Ellis then

admitted that he had illegal contraband on his person, namely bags of crack

cocaine and heroin. A subsequent search warrant yielded a finding of glass

vials in the vehicle that were commonly used to contain drug mixtures.

After being charged with various offenses stemming from this incident,

Elis filed two separate motions to suppress evidence, claiming first that his

vehicle’s inventory search was unlawful. The second motion contended that

the inventory search was actually an unlawful investigatory search. The court

denied both motions.

Ultimately, after a bench trial, Ellis was convicted of one count of

possession with intent to deliver a controlled substance; two counts of

possession of a controlled substance; three counts of possession with intent

to use drug paraphernalia; and one count each of firearms not to be carried

without a license, possession of firearm with altered manufacturer's number,

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and receiving stolen property. See 35 P.S. § 780-113(a)(30), (16) & (32) and

18 Pa.C.S.A. §§ 6106(a)(1), 6110.2(a) & 3925(a), respectively. The court

then sentenced Ellis to 60 to 120 months of confinement followed by ten

months of probation.

In his direct appeal, Ellis challenged the trial court’s denial of his two

suppression motions. See Ellis, 2018 WL 4062300 at *1. We found no merit

to either contention that the police officer’s actions constituted an illegal

search and affirmed Ellis’s judgment of sentence. See id.

Several months later, Ellis timely filed a pro se PCRA petition, his first.

The PCRA court appointed counsel. However, counsel subsequently filed a

request to withdraw and a Turner/Finley no-merit letter. See

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The PCRA court then

issued a Pa.R.Crim.P. 907 notice of its intent to dismiss his petition without a

hearing. Upon receiving no response from Ellis, it formally dismissed his PCRA

petition and granted counsel’s request to withdraw. In this appeal, both the

PCRA court and Ellis have complied with their respective obligations under

Pa.R.A.P. 1925.

Ellis raises four issues for our review:

1. Did the PCRA court err when it concluded that Ellis failed to meet his burden in demonstrating that trial counsel was ineffective for failing to object to the admission of the Commonwealth’s laboratory and ballistics reports?

2. Did the PCRA court err when it concluded that Ellis failed to

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meet his burden in demonstrating that trial counsel was ineffective for failing to challenge the veracity of the search warrant affidavit during his suppression hearings?

3. Did the PCRA court err when it concluded that Ellis failed to meet his burden in demonstrating that trial counsel was ineffective for not investigating the vehicle’s registration?

4. Did the Commonwealth engage in prosecutorial misconduct?

See Appellant’s Brief, at 4.

“Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court's ruling is

supported by the record and free of legal error.” Commonwealth v. Presley,

193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). However, the PCRA

court's findings and evidence of record are viewed in a light most favorable to

the prevailing party. See Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.

2015).

Here, the PCRA court did not conduct a hearing on Ellis's petition. Our

precedent makes clear that a PCRA court may dismiss a petition without a

hearing if it concludes the petition raises no genuine issues of material fact

and does not otherwise arguably justify collateral relief. See Commonwealth

v. Cruz, 223 A.3d 274, 277 (Pa. Super. 2019).

Three of Ellis’s four claims assert that his trial counsel was ineffective

through inaction at various points prior to his trial. Our case law defining

ineffective assistance of counsel is well-settled. First, counsel is presumed to

have rendered effective assistance. See Commonwealth v. Rivera, 10 A.3d

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1276, 1279 (Pa. Super. 2010). Second, Pennsylvania courts are guided by the

test promulgated in Strickland v. Washington, 466 U.S. 668 (1984). See

Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa. 1987). That test, as

adopted by our courts, means that in order to demonstrate ineffectiveness,

Ellis must plead and prove by a preponderance of the evidence that: “(1) his

underlying claim is of arguable merit; (2) the particular course of conduct

pursued by counsel did not have some reasonable basis designed to effectuate

his interests; and, (3) but for counsel's ineffectiveness, there is a reasonable

probability that the outcome of the challenged proceeding would have been

different.” Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).

Third, a failure to satisfy any one prong of that three-part test renders

an ineffective assistance of counsel claim fatally defective. See

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). As such, we, as

an appellate court, “need not analyze the prongs of an ineffectiveness claim

in any particular order.” Commonwealth v. Johnson, 139 A.3d 1257, 1272

(Pa. 2016). Fourth, “counsel cannot be deemed ineffective for failing to raise

a meritless claim.” Id.

In his first ineffective assistance claim, Ellis suggests that his trial

counsel was ineffective for stipulating to two laboratory reports: a drug report

and a firearm report. Ellis maintains that, in accordance with Melendez-Diaz

v. Massachusetts, 557 U.S. 305 (2009), his Sixth Amendment right to cross-

examine the authors of those reports was violated.

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In Melendez-Diaz, the United States Supreme Court determined that

“affidavits reporting the results of forensic analysis which showed the material

seized by the police and connected to [that] defendant was cocaine” were

testimonial evidence. Id., at 307, 310. The Court went on to conclude that

the affiants of those affidavits were “witnesses” within the meaning of a

defendant’s right of confrontation under the Sixth Amendment. Id., at 313-

14, 324. As such, a defendant has an inherent right to question laboratory

analysts because they “provide[] testimony against [a defendant], proving

one fact necessary for ... conviction[.]” Id., at 313 (identifying, there, that

the reported “fact” was a positive test for cocaine) (emphasis in original).

That said, Melendez-Diaz also acknowledged that, given the effective

spotlight placed on the forensic analysts should they be asked to provide live

testimony, “[d]efense attorneys and their clients will often stipulate to the

nature of the substance in the ordinary case.” Id., at 328. The Supreme Court

then went on to quote an amicus brief for the proposition that “[g]enerally,

defendants do not object to the admission of drug certificates most likely

because there is no benefit to a defendant from such testimony.” Id. (citation

omitted).

While Ellis is correct that he had a right to cross-examine the weapons

and drug analysts responsible for generating reports used against him at trial,

Melendez-Diaz also plainly reinforces the idea that a defense attorney may,

and in fact often will, stipulate to those laboratory findings, which is precisely

what happened here. Furthermore, Ellis fails to demonstrate with any

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particularity how he was prejudiced by the admission of those laboratory

reports.

Without context, Ellis, in his brief, latches on to the testimony of a

testifying officer who indicated that “there was some confusion in a prior

report[.]” N.T., 7/6/16, at 81. As that officer was not the author of that report,

Ellis believes that this confusion should have provided the opportunity to test

the veracity of that report’s contents. However, that answer was merely

responsive to the question “[a]nd you know that there was no fentanyl found

in the ZzzQuil?” Id. A few moments prior to this cross-examination, that

officer affirmatively stated that he had reviewed the drug laboratory report

and confirmed that a large majority of the bags Ellis had on his person

contained crack cocaine. See id., at 76. Ellis does not refute the laboratory’s

affirmative finding of cocaine or its further affirmative finding of heroin.

Rather, he highlights that some of the items that were seized did not contain

narcotics.

Similarly, Ellis takes issue with the testimony surrounding the firearms

laboratory report. Ellis cites to testimony regarding the inconclusive nature of

the firearm DNA tests and the fact that anybody could have put those firearms

in Ellis’s vehicle or removed the serial numbers from one of the recovered

guns. See Appellant’s Brief, at 18-19; N.T., 7/6/16, at 69-71. However, Ellis

does not indicate, with any degree of certainty, what aspect of the firearms

report he is specifically contesting or how he has been prejudiced by its

admission. In fact, the record reflects a vigorous cross-examination of the

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officer that was probative of Ellis’s specific relationship with the uncovered

firearms. See, e.g., N.T., 7/6/16, at 69-71.

Simply put, other than merely claiming that trial counsel should have

objected to the reports and was therefore deficient, Ellis does not further

explain precisely what elements of either report required exploration on cross-

examination. Accordingly, we see no basis to conclude that the failure to

cross-examine the authors of the forensic reports prejudiced Ellis in any

discernable way. Ellis is due no relief on this issue.

In his second argument, Ellis contends that his trial counsel was

“ineffective for failing to challenge the veracity of the search warrant affidavit

during the suppression hearing.” Appellant’s Brief, at 25. However, Ellis has

not established that he suffered any prejudice from this failure.

The affidavit supporting the search warrant was drafted after the

discovery of firearms in the vehicle and drugs on Ellis himself. Ellis does not

directly refute either basis as providing a pathway to provide probable cause

to search the vehicle, but instead highlights inconsistencies between the

affiant officer’s testimony and facts as purported by Ellis. Even if every alleged

erroneous statement made by the officer was stricken from the search

warrant, we find that based on this record, there still would have been enough

probable cause for a valid search warrant.

More specifically, Ellis, without evidence, baldly suggests that the officer

made a false statement as to his rationale when he initially pulled over Ellis’s

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vehicle because according to Ellis, no one informed the officer that the

vehicle’s registration was suspended. See Appellant‘s Brief, at 27, 31.

Ellis does not challenge the nucleus of facts utilized to underpin the

search warrant, namely the drugs and firearms already known to the affiant

officer at that time. Moreover, Ellis fails to demonstrate how any of trial

counsel’s actions or inactions were deficient or that a refutation of any of the

alleged inaccurate statements made in the affidavit would have vitiated the

probable cause necessary for the search warrant. In addition, the validity of

the search warrant has already been addressed during the trial court’s

consideration of and ruling on his pretrial suppression motions. Accordingly,

Ellis’s underlying assertion does not have legal merit, and he furthermore has

not adequately demonstrated that prejudice ensued from the purported lies

contained within the affidavit of probable cause.

In his third claim, Ellis believes that his trial counsel was ineffective for

not investigating the vehicle’s registration. He claims that research “would

have demonstrated that the police officer committed p[er]jury when offering

his testimony[.]” Appellant’s Brief, at 36. Ellis avers that his registration was

valid for several months after he was arrested. While it may be true that the

registration as provided by the Pennsylvania Department of Transportation

may have had a documented expiration date beyond the date when he was

pulled over and subsequently arrested, such a document does not reflect

whether the registration is suspended. See, e.g., Greenfield v. Com., Dept.

Of Transp., 67 A.3d 198, 200-201 (Pa. Cmwlth. 2013) (explaining that an

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unexpired registration is automatically suspended for three months when

there is no insurance covering the vehicle).

Here, the arresting officer confirmed, through the National Crime

Information Center System, that Ellis’s vehicle registration was suspended

after the officer received Information that a vehicle with a description

matching Ellis’s was being operated with a suspended registration. See N.T.,

2/29/2016, at 10. Other than simply declaring that “there’s no ‘Penndot record

of a suspended tag,’” Appellant’s Brief, at 40, Ellis does not provide any

objective indicia to controvert the arresting officer’s testimony that his

vehicle’s registration was suspended at the time he was pulled over.

Furthermore, the gravamen of Ellis’s underlying assertion, both here and his

prior issue dealing with the validity of the initial stop, inventory search, and

underlying search warrant, have been definitively addressed throughout the

various suppression motions and hearings in this case. As such, Ellis has failed

to demonstrate that his underlying claim has merit, and he is due no relief.

Ellis’s fourth issue contends that the Commonwealth knowingly admitted

false information against him and therefore engaged in prosecutorial

misconduct. While his argument is largely vague and undefined, we glean that

Ellis is, again, taking issue with some of the facts that were used to obtain the

search warrant. Most, if not all, of Ellis’s specific claims in this section are

contained within other sections of his brief. Given that we have already

concluded that Ellis has not established any prejudice from the search warrant

application given the undisputed discovery of firearms in his vehicle prior to

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the application, we see no reason to conclude that he has suffered from any

kind of cumulative error. See Commonwealth v. Spotz, 18 A.3d 244, 321

(Pa. 2011) (establishing that, while “lack of merit” claims can never result in

a cumulative error claim cognizable under the PCRA, a cumulative prejudice

claim may have validity if there are multiple instances of trial counsel’s

ineffective representation).

Accordingly, for the reasons discussed above, we affirm the PCRA court's

dismissal of Ellis's PCRA petition without a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/09/2021

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