J-S27012-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY THOMAS GREEN : : Appellant : No. 1719 EDA 2024
Appeal from the Order Entered May 21, 2024 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP-46-CR-0003256-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY THOMAS GREEN : : Appellant : No. 1721 EDA 2024
Appeal from the Order Entered May 21, 2024 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP-46-CR-0003259-2017
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED DECEMBER 11, 2025
Appellant, Anthony Thomas Green, appeals pro se from the order of the
Court of Common Pleas of Montgomery County dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.
Upon review, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S27012-25
The facts of the underlying cases are not in dispute. On April 3, 2017,
Detective David Crawford of the Norristown Police Department was on patrol
operating an unmarked police vehicle. N.T. Trial, 3/27/18, at 13-14, 16. He
observed Mary Bannon, an individual known to him from prior arrests for
engaging in prostitution and drug offenses. Id. at 14-15.
Detective Crawford watched Bannon converse with several individuals
in different vehicles. Id. at 17-20. Based on his training and experience, as
well as his past contacts with Bannon, Detective Crawford believed Bannon
was trying to buy drugs or sell herself. Id. at 20. At that point, he decided
to approach the last vehicle Bannon had contact with, a white truck. Before
he could do so, Bannon walked into the street and entered a blue van that
had stopped in front of her. Id. at 21. Detective Crawford now focused on
the blue van, which drove down the street about 50 to 60 yards and parked.
Id. Detective Crawford now believed he was watching a drug transaction. Id.
at 22. He ran the van’s registration and learned that Appellant was the
registered owner. Id. at 23.
Detective Crawford pulled his vehicle behind the van and approached
the driver’s side. Id. at 25. Due to heavy window tinting, Detective Crawford
was unable to see clearly inside the vehicle, but he still could see the driver’s
hands moving. Id. at 26-27. Believing that a drug transaction was occurring,
Detective Crawford opened the driver’s side door for officer safety, identified
himself, and asked Appellant, the driver, to exit the vehicle. Id. at 27.
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Bannon was in the passenger seat, and an unidentified male was in the back
seat.1 Id. at 28.
Appellant initially was cooperative but became increasingly aggressive
and hostile. Id. at 28. Officer Joshua Keenan, an officer who arrived at the
scene as backup, repeatedly told him to calm down and keep his hands on the
rear of the vehicle. Id. at 91. Based on Appellant’s behavior, Officer Keenan
was concerned that Appellant was going to engage him or other officers in
physical contact or run. Therefore, Appellant was handcuffed. Id.
Before putting Appellant into a patrol vehicle, Officer Keenan patted him
down in accordance with Norristown’s policy. Id. at 92. Officer Keenan
recovered 168 red paper bags of heroin, 14 white paper bags of heroin, 39
yellow plastic bags of methamphetamine, and $302 of U.S. currency from
Appellant’s person. Id. at 98; see also Commonwealth’s Exhibit 16. As a
result, Appellant was arrested, and his vehicle was towed.
Detective Crawford obtained a search warrant for Appellant’s van, and
a search revealed a loaded 40-caliber handgun underneath the driver’s seat.
Id. at 35. He also recovered a clear bag with four pills in the console. Id. In
Detective Crawford’s opinion, and based on the design of the driver’s seat, the
only person who could have placed the firearm at that angle was the driver.
Id. at 38. Appellant was charged with person not to possess a firearm,
carrying a firearm without a license, possession with intent to deliver (“PWI”),
1 This individual was never identified.
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and related crimes (CP-46-CR-3259-2017). Appellant posted bail and was
released.
On April 8, 2017, Officer Keenan was on patrol near the Americas Best
Hotel, a known high-crime, high-drug area in Norristown. Id. at 113. A
confidential informant told Officer Keenan that he had just purchased drugs
from a male known as “Ant.” Id. at 114. Based on this information, Officer
Keenan began surveillance in the area for a blue Subaru station wagon. Id.
Officer Keenan located the vehicle, which was registered to Appellant, and
initiated a traffic stop. Id. at 115-16. As soon as Officer Keenan approached,
Appellant was argumentative and questioned the stop. Id. at 116-17.
Appellant kept moving his hands toward the center console despite Officer
Keenan’s commands to keep his hands visible. Id. at 117.
Appellant ultimately complied and Officer Keenan asked him to exit the
vehicle, which he did. Id. While Officer Keenan conducted a pat down for
officer safety, Appellant continued to move and repeatedly turned away from
Officer Keenan. Id. at 118. Officer Keenan felt the outline of a Ziploc bag
with a rocklike object inside. Id. at 119. He removed the object, which was
consistent with crack cocaine, and placed Appellant under arrest. Id.
Appellant’s vehicle was towed, and a search warrant for it was obtained. Id.
at 119. When the search was executed, several cell phones were ringing
constantly. Id. at 120. Inside the fuse box underneath the dashboard and
underneath the driver’s seat, officers recovered 117 black plastic bags of
cocaine, 14 plastic bags of cocaine, 11 yellow plastic bags of
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methamphetamine, 34 green paper bags of fentanyl and heroin, one red paper
bag of heroin, and one plastic bag of unidentified white material. Id. at 120;
see also Commonwealth’s Exhibit 21. Appellant was charged with three
counts of PWI and related crimes (CP-46-CR-3256-2017).
On May 10, 2017, a combined preliminary hearing for both cases was
held, and all charges were held for court. Although the Commonwealth never
filed a formal motion to consolidate, the cases were consolidated by court
order on July 31, 2017. Appellant filed omnibus pretrial motions on both
cases, and the trial court conducted a combined hearing. Appellant’s motions
were denied on December 12, 2017. Trial was scheduled for March 29, 2018,
and subsequently rescheduled to March 26, 2018. Thereafter, the
Commonwealth gave notice of its intent to admit lab results as to the
quantities and type of narcotics seized. Appellant objected and filed a demand
for live testimony.
On the scheduled date of trial, Appellant waived his right to a jury. He
completed a written colloquy, and the trial court conducted an oral colloquy.
See Waiver of Jury Trial, 3/27/18; see also N.T. Trial, 3/27/18, at 6-12. After
presentation of evidence relating to the first case (No. 3259-2017), trial
counsel objected to the consolidation of the two cases and made an oral
motion to sever. N.T. Trial, 3/27/18, at 108. Trial counsel acknowledged that
he agreed to proceed in one trial for both cases. Id. However, he argued
that the cases should not have been consolidated because the evidence for
the second case was not admissible in the first case. Id. The court denied
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the motion and determined that consolidation would not prejudice Appellant
because they were not before a jury, and the court could separate the
evidence and consider the two events separately. Id. at 109.
The trial court found Appellant guilty on all counts and imposed an
aggregate sentence of 10 ½ to 40 years of incarceration. This Court affirmed
Appellant’s judgment of sentence. See Commonwealth v. Green, 2020 WL
1182267 (Pa. Super. filed March 11, 2020) (unpublished memorandum). On
October 6, 2020, our Supreme Court denied allowance of appeal. See
Commonwealth v. Green, 240 A.3d 99 (Table) (Pa. 2020).
On March 16, 2021, Appellant filed a pro se PCRA petition. The court
appointed Joshua M. Rudolph, Esquire, as PCRA counsel. Attorney Rudolph
filed a motion to withdraw with an accompanying Turner/Finley2 no-merit
letter. The PCRA court denied Attorney Rudolph’s motion and directed him to
confer with Appellant to determine whether to file an amended petition and
request for an evidentiary hearing. See Order 3/8/22. The court also directed
Attorney Rudolph to specifically address the 13 claims raised in Appellant’s
pro se PCRA petition and explain why each is without merit. Id.
On April 7, 2022, Attorney Rudolph filed a motion to withdraw with an
amended Turner/Finley no-merit letter. In addition to explaining why
Appellant’s claims were without merit, Attorney Rudolph stated that he had
not communicated with Appellant. Appellant filed pro se correspondence ____________________________________________
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).
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confirming that he had not spoken with Attorney Rudolph and attached copies
of letters of his attempts to speak with Attorney Rudolph. The PCRA court
denied Attorney Rudolph’s motion to withdraw and scheduled an evidentiary
hearing on three issues:
1. Whether trial counsel erroneously stipulated to the accuracy, reliability and admissibility of laboratory reports purporting to identify items alleged to have been seized from the possession and/or control of [Appellant] as illicit controlled substances.
2. Whether direct appeal counsel erred in failing to raise on direct appeal . . . a meritorious challenge preserved by trial counsel, challenging the improper consolidation of the trial proceedings on the charges at docket number CP-46-3259-2017 with CP- 46-3256-2017.
3. Whether direct appeal counsel erred in failing to raise on direct appeal . . . a meritorious challenge to the legality of [Appellant’s] sentence on the charge of prohibited possession of a firearm, graded as a felony of the first degree pursuant to 18 Pa.C.S.A. § 6105(a)(1.1)(i), where the prosecution failed to provide sufficient evidence to impose the enhanced sentence as required by Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny.5
5 This issue was raised in appellate counsel’s statement of matters complained of on appeal and addressed by the trial court in the supplemental opinion dated December 26, 2018, but was not presented for review at the Superior Court.
Order, 5/16/22, at 2-3 (our pagination).
Prior to the evidentiary hearing, Appellant filed a pro se motion to
postpone the hearing and requested appointment of new PCRA counsel
because Appellant had filed a formal complaint against Attorney Rudolph with
the disciplinary board. See Motion, 6/16/22. The evidentiary hearing was
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rescheduled twice to October 18, 2022. On the eve of the hearing, Attorney
Rudolph filed a motion to withdraw, citing a conflict of interest. Following a
hearing3, the PCRA court permitted Attorney Rudolph to withdraw, and
appointed James E. Tone, Esquire, as PCRA counsel. See Order, 10/19/22.
Attorney Tone’s appointment was terminated on August 9, 2023, after failing
to meet the court’s deadlines.
The court appointed Bonnie Keagy, Esquire, as PCRA counsel and
directed her to file either an amended PCRA petition or motion to withdraw
within 90 days. Following two extensions of time, on March 6, 2024, Attorney
Keagy filed a petition to withdraw as PCRA counsel with an accompanying
Turner/Finley no-merit letter. On April 1, 2024, the PCRA court issued a
notice of its intent to dismiss Appellant’s PCRA petition without a hearing and
granted Attorney Keagy’s request to withdraw as PCRA counsel. Appellant
filed a response which essentially reiterated the claims raised in his pro se
petition. On May 21, 2024, the PCRA court dismissed Appellant’s PCRA
petition. This appeal followed. Both Appellant and the PCRA court complied
with Pa.R.A.P. 1925.4
Appellant raises the following issues for our review, renumbered for ease
of disposition:
1. Was trial counsel ineffective for failing to object or move for a mistrial based on the Commonwealth’s introduction of bad acts ____________________________________________
3 A transcript of this proceeding is not in the certified record.
4 The Commonwealth did not file a brief.
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through Mary Bannon’s testimony (referencing prior drug sales and prior gun possession)?
2. Was trial counsel ineffective for stipulating to the accuracy of the lab reports which violated [Appellant’s] rights under the confrontation clause? See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
3. Whether PCRA counsel was ineffective under Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021) for not raising the claim that trial counsel was ineffective for failing to file a pre-trial motion to sever the two cases in this matter in light of the prior crimes and/or other crimes evidence which prejudiced the defense during trial?
4. Whether PCRA counsel was ineffective under [Bradley] for not raising the claim that trial counsel was ineffective for . . . advising [Appellant] to waive his jury trial because it would be better not to anger the judge as there was no severance or prior/other crime notices filed in the cases, it would inconvenience the court, and if convicted, [Appellant] would get less prison time?
5. Whether PCRA counsel was ineffective under [Bradley] for not raising the claim that trial counsel was ineffective for failing to impeach Commonwealth witness Mary Bannon with an open case (CP-46-CR-0008573-2017) consisting of a crimen falsi crime?
6. Whether the PCRA court committed an error when it failed to conduct an evidentiary hearing in this case to assess trial counsel’s strategic decisions on the record and only accepted PCRA counsel’s [Turner/]Finley letter which contained the out- of-court hearsay statements of trial counsel?
Appellant’s Brief, at 4-6.
We review an order denying a petition for collateral relief to determine
whether the PCRA court’s decision is supported by the evidence of record and
free of legal error. See e.g., Commonwealth v. Albrecht, 994 A.2d 1091,
1093 (Pa. 2010). “The PCRA court’s findings will not be disturbed unless there
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is no support for the findings in the certified record.” Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). “The scope of our review
is limited to the findings of the PCRA court and the evidence of record, which
we view in the light most favorable to the party who prevailed before that
court.” Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020) (internal
citations omitted).
Appellant raises two claims of trial counsel ineffectiveness: (1) failure to
object to and/or request a mistrial based on the introduction of prior bad acts
through Bannon’s testimony; and (2) stipulating to the accuracy of the lab
reports. He also raises three layered claims of PCRA counsel ineffectiveness
for failing to raise claims of trial counsel’s ineffectiveness in: (1) failing to file
a pre-trial motion to sever; (2) advising Appellant to waive his right to a jury
trial; and (3) failing to impeach Bannon.
In Pennsylvania, counsel is presumed to have rendered effective
assistance. Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. Super.
2017). To overcome this presumption, a petitioner must plead and prove by
a preponderance of the evidence that: (1) the underlying claim has arguable
merit; (2) counsel had no reasonable strategic basis for his or her action or
inaction; and (3) the petitioner suffered prejudice because of counsel’s action
or inaction. Id. Our Supreme Court has explained that:
A chosen strategy will not be found to have lacked a reasonable basis unless it is proven that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.
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Prejudice in the context of ineffective assistance of counsel means demonstrating that there is a reasonable probability, but for counsel’s error, the outcome of the proceedings would have been different.
Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009) (citations omitted).
If a petitioner fails to satisfy any one of the three prongs, the claim fails.
Orlando, 156 A.3d at 1281. “Counsel will not be found ineffective for failing
to raise a meritless claim.” Commonwealth v. Brown, 196 A.3d 130, 151
(Pa. 2018).
Appellant’s first claim is that trial counsel was ineffective by failing to
object to and/or request a mistrial based on the introduction of prior bad acts
in violation of Pa.R.E. 404(b). During the non-jury trial, the Commonwealth
elicited the following from Bannon:
Q: Why were you calling [Appellant] to purchase your heroin? Is he your regular dealer?
A: Yes.
Q: How long have you been buying from [Appellant]?
A: About a year.
Q: How often per week?
A: Like twice a week, three times a week.
Q: Do you ever see him with a gun?
A: No. I’ve never seen him himself with a gun on him.
Q: How about around him?
A: Yeah, in the van.
Q: What van?
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A: The blue van.
Q: Is that what he normally would pick you up in?
N.T. Trial, 3/27/18, at 61-62. Appellant contends that this line of questioning
elicited testimony of Appellant’s prior bad acts, specifically drug dealing and
possessing a firearm, and that trial counsel was ineffective by not objecting
or requesting a mistrial based on a violation of Pa.R.E. 404(b).
Rule 404(b) prohibits “[e]vidence of any other crime, wrong, or act . . .
to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.” Pa.R.E. 404(b)(1). Such
evidence may be admissible, however, for another purpose, “such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident[,]” so long as the probative value outweighs
the potential for unfair prejudice. Pa.R.E. 404(b)(2).
In denying Appellant’s claim, the PCRA court found:
The evidence elicited from Ms. Bannon was her own statement about how she knew Appellant and how she encountered him with respect to this crime; it is not evidence of Appellant’s prior bad acts to show his propensity to commit a crime. Even if it were, the evidence would have been [] admissible under Rule 404(b) as evidence of intent and modus operandi about the relationship between Ms. Bannon and Appellant. At trial, the defense was aware and was on notice of the evidence that Ms. Bannon alleged Appellant had previously sold drugs to her.
Appellant has failed to prove that even if trial counsel objected to the evidence of Ms. Bannon’s prior drug dealings with Appellant, it would have changed the outcome of the trial. Appellant was convicted of possession with intent to deliver because he was found
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to have large quantities of various narcotics in his possession that were too large for personal use. Ms. Bannon’s testimony about her own dealings with Appellant was admissible. Trial counsel employed a reasonable trial strategy in failing to object to this portion of Ms. Bannon’s testimony.
PCRA Court Opinion, 8/19/24, at 21.
We discern no abuse of discretion. The testimony elicited from Bannon
was not admitted to prove that Appellant had a propensity to commit crime.
Rather, the testimony detailed the sequence of events that ultimately led to
Appellant’s arrest. Additionally, even if trial counsel objected to that line of
questioning, it would not have changed the outcome of the proceedings
because the Commonwealth introduced other admissible evidence that firmly
established Appellant’s guilt for possession with intent to deliver. Detective
Crawford observed Appellant pick up Bannon, drive a short distance away and
park. Based on his training and experience, Detective Crawford believed a
drug transaction was occurring and approached the vehicle. Detective
Crawford subsequently recovered a significant number of narcotics from
Appellant’s person. Detective Michael Reynolds was admitted as an expert in
narcotics trafficking and opined that Appellant possessed the narcotics found
on his person with the intent to distribute. Thus, Appellant has failed to prove
that he was prejudiced by trial counsel’s inaction, and no relief is due.
Appellant’s second claim is that trial counsel was ineffective because he
stipulated to the accuracy of the lab results after filing a demand for live
testimony. We note that the PCRA court initially granted Appellant an
evidentiary hearing on this issue. Although a hearing was conducted on
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October 18, 2022, we do not know what took place, because the transcript
has not been made part of the certified record. However, based on our review,
it does not appear that Appellant’s trial counsel ever testified.
In denying this claim, the PCRA court found that Appellant failed to
establish that he was prejudiced by the stipulation:
On January 29, 2018, trial counsel filed a demand for live testimony from the person who conducted the lab analysis. Once Appellant decided to have a bench trial rather than a jury trial, a conscious decision was made to not require the Commonwealth to produce a live witness. The parties stipulated as to the identification of narcotics on the NMS lab report dated April 19, 2017. The Commonwealth introduced into evidence the NMS lab report dated April 19, 2017[,] detailing narcotics recovered from Appellant. Trial counsel did not object. In addition, the parties stipulated to the admission of the NMS lab report dated May 2, 2017. This lab report was for Ziploc baggies containing various narcotics. . . .
Trial counsel’s strategy at trial was to focus on who possessed the drugs that were found in the car as well as the credibility of the witnesses. Trial counsel did not need to question a lab technician as part of the strategy of his case. There is no evidence that having a live lab technician testify would have changed the outcome of the case. The stipulations to the admission of the NMS lab reports did not violate Appellant’s rights under the Confrontation Clause. As a result, the prejudice prong is not met.
PCRA Court Opinion, 8/19/24, at 23-24.
We discern no abuse of discretion. Appellant has not demonstrated how
the lab technician’s testimony would have changed the outcome of the case.
Our review of the record reveals that trial counsel did not question whether
the items recovered from Appellant’s possession were narcotics. Rather,
counsel argued that Appellant did not possess the firearm or narcotics. As for
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the firearm, trial counsel argued that the firearm was shoved under the
driver’s seat by the unidentified male in the rear of Appellant’s vehicle. See
N.T. Trial, 3/27/18, at 179-84. Counsel further argued that Appellant was not
the owner of the jacket he was found wearing and therefore was not aware
that the pockets contained various narcotics. See id. at 184. Likewise,
counsel argued that the Commonwealth failed to introduce evidence to prove
Appellant had knowledge of the narcotics found inside the fuse box of the
Subaru. See id. at 185. Therefore, Appellant has failed to prove that he was
prejudiced by counsel’s decision to stipulate to the lab reports. No relief is
due.
Appellant’s next three ineffectiveness claims relate to PCRA counsel,
Attorney Keagy. Specifically, he contends PCRA counsel was ineffective by
not raising claims of trial counsel’s ineffectiveness for: (1) failing to file a pre-
trial motion to sever the cases; (2) advising Appellant to waive his right to a
jury trial; and (3) failing to impeach Bannon.
Since the PCRA court granted Attorney Keagy’s motion to withdraw, this
is the first opportunity for Appellant to raise claims of her ineffectiveness. See
Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021) (“[A] PCRA
petitioner may, after a PCRA court denies relief, and after obtaining new
counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the
first opportunity to do so, even if on appeal.”). The question then is whether
we must remand to the PCRA court for further proceedings or whether “the
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record before the appellate court [is] sufficient to allow for disposition of [the]
newly-raised ineffectiveness claims.” Id. at 402.
To obtain relief on a layered claim of ineffectiveness,
appellant must plead and prove that: (1) trial counsel was ineffective for a certain action or failure to act; and (2) [PCRA] counsel was ineffective for failing to raise trial counsel’s ineffectiveness. As to each relevant layer of representation, appellant must meet all three prongs of the Pierce5 test for ineffectiveness. A failure to satisfy any of the three prongs of the Pierce test requires rejection of a claim of ineffective assistance of trial counsel, which, in turn, requires rejection of a layered claim of ineffective assistance of [PCRA] counsel.
Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011).
We begin with the claim that PCRA counsel was ineffective for not raising
trial counsel’s ineffectiveness of failing to file a pre-trial motion to sever the
cases.6 During the non-jury trial, after presentation of evidence in the first
case, trial counsel made an oral motion to sever. The trial court denied the
motion. Nevertheless, Appellant contends that he was prejudiced by trial
counsel’s failure to request severance pre-trial because “the trier of fact was
unlawfully influenced by crimes/bad acts” in the first case when it adjudicated
the second case. Appellant’s Brief, at 28. Specifically, he argues that the
evidence from the first case “painted [Appellant] as one constantly engaging
5 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
6 As noted above, the Commonwealth did not file a formal motion to consolidate because it believed the cases were administratively consolidated. Trial counsel stated that he did not request severance because the cases were never consolidated. N.T. Trial, 3/27/18, at 107-08. Our review of the record shows that the cases were consolidated by court order on July 31, 2017.
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in ‘heroin dealing’ in Norristown[;]” therefore, any argument that Appellant
was not in possession of narcotics in the second case “carried no weight with
the trier of fact.” Id. at 29.
Appellant has failed to demonstrate that the outcome of the proceedings
would have been different had the court granted severance. He does not point
to anything the court said which suggested that its decision in one case was
influenced by the evidence in the other case. Moreover, the evidence in each
case was overwhelming.
In the first case, Detective Crawford observed Bannon, a woman he
knew from prior contacts engaged in sex work and drug use, enter Appellant’s
blue van. The vehicle drove a short distance away and parked. Detective
Crawford believed this was a drug transaction based on his training and
experience. He approached the vehicle and asked Appellant, the driver, to
exit. Due to Appellant’s behavior, he was handcuffed and patted down for
officer safety. During the pat-down, Officer Keenan observed several bundled
bags of suspected heroin inside his jacket pocket. A lab test confirmed the
bags contained controlled substances. Appellant was arrested and his vehicle
was towed. A search warrant was obtained and executed. A firearm was
recovered from underneath the driver’s seat.
In the second case, a confidential informant (“CI”) told Officer Keenan
that he recently purchased narcotics from someone named “Ant,” whom
Officer Keenan believed was Appellant. Based on information from the CI,
Officer Keenan set up surveillance to look for a blue Subaru station wagon.
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Officer Keenan located the Subaru, which was registered to Appellant, and
conducted a traffic stop. Appellant was driving the vehicle. Once again, due
to Appellant’s behavior, Officer Keenan asked him to exit the vehicle and
patted Appellant down for officer safety. During the pat-down, Officer Keenan
felt a rocklike substance which he believed was crack cocaine. Appellant was
arrested and his vehicle was towed. A search warrant was obtained and
executed. Officers discovered a large quantity of various narcotics concealed
in the dashboard of the driver’s seat area. In addition, officers recovered four
cell phones that were “ringing constantly” during execution of the warrant.
In both cases, Detective Reynolds gave expert testimony that Appellant
possessed the narcotics with the intent to distribute. N.T., Trial 3/27/18, at
155, 160. His opinion was based on the quantity of narcotics, the way in
which they were packaged, and the storage of various amounts of money in
different places on Appellant’s person and in the vehicle. Id. at 155-58, 160-
64. Additionally, Detective Reynolds testified that drug dealers typically carry
a weapon and utilize multiple cell phones. Id. at 159, 163.
Given this overwhelming evidence of guilt, Appellant fails to
demonstrate that he suffered prejudice from trial counsel’s failure to request
severance of his cases. It follows that Appellant’s layered claim regarding
PCRA counsel’s ineffectiveness for failing to pursue this issue must also fail.
No relief is due.
Appellant’s next ineffectiveness claim is that PCRA counsel failed to raise
trial counsel’s ineffectiveness in advising Appellant to waive his right to a jury
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trial. According to Appellant, trial counsel advised him to waive his right to a
jury trial based on the following: (1) the cases were not properly consolidated,
and demanding jury trials in both would inconvenience the court; (2) the judge
would be angry if forced to schedule and conduct two jury trials; and (3) if
angry, the judge would ensure Appellant was convicted by an “all-white” jury
and sentence Appellant to the maximum. See Appellant’s Brief, at 37. He
further claimed that by waiving his right to a jury, trial counsel abandoned
their agreed-upon defense for docket number 3259-2017.7 Id.
The right to a jury trial is enshrined in both the United States and
Pennsylvania Constitutions. See U.S. Const. amend. VI; Pa. Const. art. I, §
6. Waiver of the right to a jury trial is governed by Pa.R.Crim.P. 620, which
provides:
In all cases, the defendant and the attorney for the Commonwealth may waive a jury trial with approval by a judge of the court in which the case is pending, and elect to have the judge try the case without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record, and signed by the defendant, the attorney for the Commonwealth, the judge, and the defendant’s attorney as a witness.
Pa.R.Crim.P. 620. We are guided by the following principles:
The essential elements of a jury waiver, though important and necessary to an appreciation of the right, are nevertheless simple to state and easy to understand. The essential ingredients, basic to the concept of a jury trial, are the requirements that the jury be chosen from members of the community (a jury of one’s ____________________________________________
7 Appellant did not elaborate what that defense was.
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peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.
Commonwealth v. Mallory, 941 A.2d 686, 696-97 (Pa. 2008) (quotation
marks and brackets removed).
“When a presumptively-valid waiver is collaterally attacked under the
guise of ineffectiveness of counsel, . . . the analysis must focus on the totality
of relevant circumstances.” Id. at 698. Such circumstances include “the
defendant’s knowledge of and experience with jury trials, his explicit written
waiver (if any), and the content of relevant off-the-record discussions counsel
had with his client.” Id. Thus, to show prejudice, a defendant must
“demonstrate a reasonable probability that but for counsel’s constitutionally
deficient service, the outcome of the waiver proceeding would have been
different, i.e., that he would not have waived his right to a jury trial.” Id. at
704.
The totality of the circumstances revealed that Appellant fully
understood the essential components of a jury trial and made an informed
decision to proceed to a non-jury trial. Not only did Appellant complete a
written waiver, but the court conducted an oral colloquy on the record. See
Waiver of Jury Trial, 3/27/18; N.T. Trial, 3/27/18, at 7-10. The trial court
verified that trial counsel explained to Appellant (1) the difference between a
jury and bench trial; (2) the verdict must be unanimous; and (3) Appellant
could participate and assist trial counsel in jury selection. N.T. Trial, 3/27/18,
at 9. The trial court also colloquied Appellant as follows:
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Q: Is this the waiver of jury trial form that you signed this morning?
Q: And by signing that form, you’ve indicated that you wish to waive a jury and have the court hear this case?
Q: That’s a decision that you made in consultation with your attorney[?]
Q: And did you make that decision – did you have enough to time to speak with [your attorney]?
Q: And the decision to waive a jury and let this Court decide the case at a bench trial is one that you made of your own free will?
****
Q: So knowing those distinctions and knowing everything that I just said and everything you spoke to [your attorney] about, is it your desire to waive a jury and proceed today with a bench trial?
N.T. Trial, 3/27/18, at 8-10. Appellant’s colloquy indicates that he understood
the “essential ingredients” of a jury trial and elected to waive that right of his
own volition. Appellant’s claim that trial counsel was ineffective for coercing
him to waive his right to a jury trial requires accepting that Appellant lied while
under oath. A PCRA petitioner “may not obtain post-conviction relief by
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claiming that he lied during his waiver colloquy.” Commonwealth v. Bishop,
645 A.2d 274, 277 (Pa. Super. 1994). Appellant stated that he had ample
time to consult with his attorney and decided to waive his right to a jury trial.
Appellant is bound by the statements he made during his oral colloquy.
Because the record shows that Appellant entered a voluntary, knowing
and intelligent jury waiver, his ineffectiveness claim against trial counsel lacks
arguable merit and the claim fails. It follows that Appellant’s layered claim
regarding PCRA counsel’s ineffectiveness for failing to pursue this issue must
also fail. No relief is due.
Appellant’s final claim of PCRA counsel ineffectiveness is the failure to
raise trial counsel’s ineffectiveness of not impeaching Bannon with an open
case with a crimen falsi offense. Appellant waived this claim by failing to
include it in his concise statement. See Pa.R.A.P. 302(a) (“Issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.”); Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“Any
issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived”).
Lastly, Appellant argues that the PCRA court abused its discretion by
declining to hold an evidentiary hearing. We review the PCRA court’s decision
dismissing a petition without a hearing for an abuse of discretion.
Commonwealth v. Williams, 244 A.3d 1281, 1287 (Pa. Super. 2021)
(citation omitted). The right to an evidentiary hearing on a PCRA petition is
not absolute; “[i]t is within the PCRA court’s discretion to decline to hold a
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hearing if the petitioner’s claim in patently frivolous and has no support either
in the record or other evidence.” Id. Moreover,
[t]o obtain a reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.
Commonwealth v. Roney, 79 A.3d 595, 605 (Pa. 2013) (quotation marks
and citations omitted). “[A]n evidentiary hearing is not meant to function as
a fishing expedition for any possible evidence that may support some
speculative claim[.]” Id.
Appellant argues that all the issues he presented to the PCRA court were
meritorious and involved genuine issues of material fact. See Appellant’s
Brief, at 50-57. The PCRA court disagreed, stressing that it extensively
reviewed the record and provided Appellant a 26-page notice of intent to
dismiss without a hearing detailing why there were no issues upon which it
would grant PCRA relief. As discussed supra, we agree with the PCRA court
that Appellant does not raise any genuine issues of material fact that would
entitle him to relief. Thus, we find no abuse of discretion in the PCRA court’s
denial of an evidentiary hearing.
Order affirmed.
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Date: 12/11/2025
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