Com. v. Gibbs, J.

• Court: Superior Court of Pennsylvania
• Decided: September 21, 2018
• Docket: 3728 EDA 2017
• Status: Unpublished

Opinion

J-S40006-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMAR GIBBS, : : Appellant : No. 3728 EDA 2017

Appeal from the PCRA Order October 30, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0007137-2015

BEFORE: LAZARUS, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 21, 2018

Appellant, Jamar Gibbs, appeals from the Order entered in the

Philadelphia County Court of Common Pleas dismissing his first Petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After

careful review, we affirm on the basis of the PCRA court’s March 6, 2018

Opinion.

The PCRA court set forth the underlying facts and we need not repeat

them in detail. See PCRA Court Opinion, filed 3/6/18, at 2-4. Briefly, on June

28, 2015, Appellant rode his bicycle past Philadelphia Police Officer John

Bruckner and other officers on routine patrol. Officer Bruckner saw a handgun

in Appellant’s rear pocket, so he and another officer pursued Appellant.

During the chase, Sergeant John Descher who was investigating a different

crime down the street, saw Appellant riding toward him with officers in pursuit.

Sergeant Descher watched as Appellant dropped a silver handgun, stopped ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S40006-18

his bicycle, retrieved the gun and its magazine from the ground, and continued

riding in the Sergeant’s direction.

Sergeant Descher ordered Appellant to stop as he approached, but

Appellant attempted to elude Sergeant Descher. Sergeant Descher tackled

Appellant, and the other officers helped handcuff and arrest Appellant. In a

search incident to arrest, the officers recovered a loaded and operable

handgun from inside Appellant’s pants. Appellant did not have a license to

carry a firearm and he was ineligible to possess a firearm because of prior

convictions.

The Commonwealth charged Appellant with Persons Not to Possess

Firearms, Carrying a Firearm Without a License, and Carrying a Firearm in

Public in Philadelphia.1 On November 2, 2015, Appellant proceeded to a bench

trial. Appellant testified that he had stopped and retrieved the gun while riding

his bike, and that he intended to sell the gun. Appellant admitted that he

knew that he was prohibited from possessing a firearm as a prior offender.

The trial court convicted Appellant of the above offenses. On January

8, 2016, the trial court imposed an aggregate term of five to ten years’

incarceration followed by five years’ probation.2

____________________________________________

1 18 Pa.C.S. § 6105; 18 Pa.C.S. § 6106; and 18 Pa.C.S. § 6108, respectively.

2 Appellant filed a timely Post-Sentence Motion, but later withdrew it.

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Appellant filed a timely Notice of Appeal, but discontinued his appeal on

June 7, 2016. On July 13, 2016, Appellant filed the instant pro se PCRA

Petition, his first, alleging ineffective assistance of counsel because counsel

purportedly advised him to admit at trial that he picked up the firearm to sell

it. The PCRA court appointed counsel and eventually permitted counsel to

withdraw pursuant to Turner/Finley.3

On September 26, 2017, the PCRA court filed a notice of its intent to

dismiss Appellant’s PCRA Petition without a hearing pursuant to Pa.R.Crim.P.

907. On October 30, 2017, the PCRA court dismissed Appellant’s PCRA

Petition.

Appellant filed a timely Notice of Appeal. Both Appellant and the PCRA

court complied with Pa.R.A.P. 1925.

Appellant presents one issue for our review:

Was trial counsel ineffective for advising the Appellant to admit his guilt of the offense during his direct testimony at trial?

Appellant’s Brief at 4.

We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007). We give no such deference, however, to the court’s legal

conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

There is no right to a PCRA hearing; a hearing is unnecessary where the

PCRA court can determine from the record that there are no genuine issues of

material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008). “With respect to the PCRA court’s decision to deny a request for an

evidentiary hearing, or to hold a limited evidentiary hearing, such a decision

is within the discretion of the PCRA court and will not be overturned absent

an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.

2015).

The law presumes counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy

this burden, Appellant 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). “A reasonable probability is a probability sufficient to

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undermine confidence in the outcome.” Commonwealth v. Stewart, 84

A.3d 701, 707 (Pa. Super. 2013) (en banc) (citation and quotation marks

omitted).

Failure to satisfy any prong of the test will result in rejection of the

appellant’s ineffective assistance of counsel claim. Commonwealth v.

Jones, 811 A.2d 994, 1002 (Pa. 2002). See also Commonwealth v.

Gibson, 951 A.2d 1110, 1128 (Pa. 2002) (“If it is clear that Appellant has not

met the prejudice prong of the ineffectiveness standard, the claim may be

dismissed on that basis alone and the court need not first determine whether

the first and second prongs have been met.”).

“The decision of whether or not to testify on one’s own behalf is

ultimately to be made by the defendant after full consultation with counsel.”

Commonwealth v. Smith, 181 A.3d 1168, 1179 (Pa. Super. 2018). “In

order to sustain a claim that counsel was ineffective for failing to advise the

appellant of his rights in this regard, the appellant must demonstrate either

that counsel interfered with his right to testify, or that counsel gave specific

advice so unreasonable as to vitiate a knowing and intelligent decision to

testify on his own behalf.” Id.

The Honorable Daniel D. McCaffery, sitting as the PCRA court, has

authored a comprehensive, thorough, and well-reasoned Opinion, citing the

record and relevant case law in addressing Appellant’s claim. The record

supports the PCRA court’s findings and the Order is otherwise free of legal

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error. We, thus, affirm on the basis of the PCRA court’s March 6, 2018

Opinion. See PCRA Court Opinion, 3/6/18, at 4-6 (concluding it properly

dismissed Appellant’s PCRA Petition because Appellant failed to demonstrate

counsel’s alleged ineffective assistance prejudiced him, opining specifically

that “this Court would have found Appellant guilty even had he not testified

and stated that he found the gun and kept it to sell.”).

The parties are instructed to attach a copy of the PCRA court’s March 6,

2018 Opinion to all future filings.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/21/18

-6- Circulated 08/28/2018 12:46 PM

IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION -CRIMINAL SECTION

COMMONWEALTH OF PENNSYLVANIA : PHILADELPHIA COURT : OF COMMON PLEAS : CRIMINAL TRIAL DIVISION

v. : CP-51-CR-0007137-2015

CP-51-CR-0007137-2015 Comm. v. Gibbs, Jamar JAMAR GIBBS Opinion FILED MAR 06 2018 111111180191217!1°1111111III Appe Trial Office of Jls/Post udicial Recorcts

MCCAFFERY, J

Jamar Gibbs {hereinafter "Appellant") appeals from the order dated October 30, 2017,

denying him relief pursuant to the Post -Conviction Relief Act {hereinafter PCRA), 42 Pa.C.S. §

9541 et seq. For the reasons set forth below, it is respectfully suggested that the referenced

order be affirmed.

PROCEDURAL HISTORY

On November 2, 2015, Appellant was found guilty following a waiver trial of committing

the crimes of Possession of Firearm by a Prohibited Person, 18 Pa.C.S. § 6105, Firearms not to

be Carried without a License, 18 Pa.C.S. § 6106, and Carrying Firearms on a Public Street, 18

Pa.C.S. § 6108. On January 8, 2016, this Court sentenced Appellant to five to ten years'

incarceration on the Possession of Firearm' by Prohibited Person charge and two terms of five

years' probation on the remaining two charges. The probationary sentences were ordered to be

served consecutive to the sentence of incarceration but concurrent with one another. On January

14, 2016, Appellant filed a post-sentence motion. On February 19, 2016, before this Court ruled

1 upon the motion, Appellant filed a Praecipe to Withdraw said motion. Again, before this Court

could acknowledge the Praecipe, Appellant filed a Notice of Appeal on February 20, 2016, after

which Appellant's counsel advised this Court that he intended to file an Anders Brief in the

Superior Court) In accordance with Pa.R.A.P. 1925(c), counsel filed a statement of matters

Appellant intends to raise on appeal.

Appellant discontinued his direct appeal on June 17, 2016. On July 18, 2016, Appellant

filed a timely pro se PCRA petition. Counsel was appointed to represent him and on September

22, 2017, counsel filed a Motion to Withdraw as Counsel and a no-merit letter pursuant to

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), wherein counsel averred that the

issues set forth by Appellant in his pro se PCRA petition lacked merit. After carefully reviewing

the entire record and determining that there were no issues that could be raised in an amended

petition, this Court sent Appellant a Pa.R.Crim.P. 907 Notice of Intent to Dismiss on September

26, 2017. On October 30, 2017, having again reviewed the entire record, this Court issued an

order dismissing Appellant's PCRA petition without a hearing. On November 28, 2017, this

Court granted court-appointed counsel's Motion to Withdraw. Appellant thereafter filed a timely

pro se notice of appeal and a court -ordered 1925(b) Statement of Matters.

FACTUAL HISTORY

On June 28, 2015, at about 5:35 p.m., Septa Police Officer John Bruckner was in the area

of the 2800 block of Kensington Avenue in Philadelphia on routine patrol with a Sergeant

Richards and a Police Officer Anderson when he observed Appellant ride by on a bicycle. (N.T.

11/2/15, 9-11). As Appellant rode past, Officer Bruckner saw a handgun in Appellant's rear

pocket and he and Sergeant Anderson began pursuing Appellant. (N.T. 11/2/15, 9-11). During

' Anders v, California, 386 U.S. 738 (1967).

2 the chase, the gun fell out of Appellant's pocket and Appellant stopped his bike and appeared to

retrieve it before again riding away. (NJ. 11/2/15, 11).

Philadelphia Police Sergeant John Descher was holding a crime scene in the 2800 block

of Kensington Avenue when he saw Appellant riding toward him with officers in pursuit of him.

(N.T. 11/2/15, 18-20). Appellant looked back over his shoulder a couple of times as he rode

toward the sergeant. (NJ. 11/2/15, 21). When Appellant was about thirty yards from the

sergeant, the sergeant saw a silver metallic gun fall from Appellant's waistband, the magazine of

which ejected from the gun when it hit the ground. (NJ. 11/2/15, 21). Sergeant Descher

observed Appellant stop his bike, retrieve the gun and the magazine, and then climb back on his

bike and continue down the street. (N.T. 11/2/15, 21).

Sergeant Descher ordered Appellant to stop when he came near the sergeant's patrol car.

(N.T. 11/2/15, 21). Appellant then attempted to elude Sergeant Descher, who had exited his

patrol car, but was unable to do so and Sergeant Descher tackled him. (N.T. 11/2/15, 21-22).

Officer Bruckner and the officers then ran up and after Appellant was handcuffed Officer

Bruckner and another officer searched Appellant and retrieved a handgun from inside his pants.

(N.T. 11/2/15, 16, 22).

An examination of the gun showed that it was loaded and operable. (N.T. 11/2/15, 25).

Appellant did not have a license to carry a concealed weapon and the parties stipulated that

Appellant was ineligible to possess a firearm. Id.

Appellant testified in his own defense and stated that he was riding his bike when he saw

a silver object and stopped and retrieved it. (N.T. 11/2/15, 27). Although he did not know what

it was before he picked it up, he immediately saw that it was a handgun once he did so. Id. He

conceded that he was a drug dealer and intended to sell the gun because he did not mess with

3 guns. Id. He further admitted that he knew he was prohibited from possessing a firearm and that

he picked the gun up because he saw "dollar signs." (N.T. 11/2/15, 28).

DISCUSSION

In his pro se 1925(b) statement, Appellant claims that trial counsel provided him with

ineffective assistance of counsel because he advised Appellant to admit his guilt when he took

the witness stand and testified. It is respectfully suggested that appellate relief be denied with

respect to this claim for the reasons set forth below.

In reviewing the propriety of the PCRA court's dismissal of a petition without a hearing,

the reviewing court is limited to determining whether the court's findings are supported by the

record and whether the order in question is free of legal error. Commonwealth v. Holmes, 905

A.2d 707, 509 (Pa. Super. Ct. 2006) citing Commonwealth v. Halley, 870 A.2d 795, 799 (Pa.

2005). The PCRA court's findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

A PCRA court may decline to hold a hearing on the petition if the petitioner's claim is patently

frivolous and is without a trace of support either in the record or from other evidence.

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). The reviewing court on

appeal must examine each of the issues raised in the PCRA petition in light of the record in order

to determine whether the PCRA court erred in concluding that there were no genuine issues of

material fact and denying relief without an evidentiary hearing. Id. See also Commonwealth v.

Hardcastle, 701 A.2d 541, 542 (Pa. 1997).

Pennsylvania law presumes counsel is effective and therefore, the burden is placed upon

the defendant to prove otherwise. Commonwealth v. Brown, 767 A.2d 576, 581 (Pa. Super.

2001), citing Commonwealth v. Carpenter, 725 A.2d 154, 161 (Pa. 1999), citing Commonwealth

4 v. Marshall, 633 A.2d 1100 (Pa. 1993); see also Commonwealth v. Baker, 614 A.2d 663, 673

(Pa. 1992). Trial counsel has broad discretion in matters of trial strategy and the determination of

what tactics to employ during litigation. Commonwealth v. Choi Chun Lam, 684 A.2d 153, 160

(Pa. Super. 1996). Furthermore, "[i]t is well established that failed trial tactics of defense

counsel are not grounds for a new trial." Commonwealth v. Hall, 565 A.2d 144, 148 (Pa. 1989).

Trial counsel will not be held ineffective if there was a reasonable strategic basis for his or her

trial tactics. Commonwealth v. Pursell, 724 A.2d 293, 311 (Pa. 1999).

In order to establish that trial counsel's representation was deficient, defendant must

establish all of the following three elements, as set forth in Commonwealth v. Pierce, 527, A.2d

973, 975-76 (Pa. 1987): (1) the underlying legal claim has arguable merit; (2) counsel had no

reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice

because of counsel's ineffectiveness. Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011),

citing Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008). "A court is not required to

analyze the elements of an ineffectiveness claim in any particular order of priority; instead, if a

claim fails under any necessary element of the ineffectiveness test, the court may proceed to that

element first." Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citing Commonwealth v.

Sepulveda, 55 A.3d 1108, 1117-1118 (Pa. 2012); Commonwealth v. Albrecht, 720 A.2d 693,

701 (1998)).

The threshold question in reviewing an ineffectiveness claim is whether the issue,

argument, or tactic which trial counsel failed to use at trial and which is the basis of the

ineffectiveness claim is of arguable merit. Commonwealth v. Balodis, 747 A.2d 341, 343 (Pa.

2000). If defendant can prove that the argiiment or tactic which trial counsel failed to use at trial

is of arguable merit, then the "reasonable basis" test is applied to determine if the course of

5 action chosen by trial counsel was designed to effectuate his or her client's interest. ld. With

regard to the second element, defendant must prove that "an alternative [action or inaction] not

chosen offered a potential for success substantially greater than the course actually pursued."

Chmiel, supra, citing Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (alteration

added). To establish prejudice, defendant must demonstrate that there is a reasonable probability

that, but for counsel's error, the outcome of the proceeding would have been different. Chmiel,

supra, at 1127-28, citing Dennis, supra, at 954.

Here, this Court denied Appellant PCRA relief because he failed to establish that

counsel's alleged advice prejudiced him. The evidence clearly established that Appellant had

possession of the gun before the police observed him bend over and pick up the object that

turned out to be the gun that served as the basis for charging him with the offenses he was

convicted of committing. Moreover, when confronted by the police, Appellant attempted to

elude them thereby manifesting consciousness of guilt. Thus, this Court would have found

Appellant guilty even had he not testified and stated that he found the gun and kept it to sell.

Accordingly, he failed to prove that trial counsel's alleged ineffectiveness prejudiced him and it

is respectfully suggested that his claim be deemed lacking in merit.

CONCLUSION

Based on the foregoing, it is respectfully suggested that the order denying Appellant

relief pursuant to the PCRA be affirmed.

BY THE COURT,

Date: -Oho /V Daniel D. McCaffery, J