NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
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v. :
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:
AMEER JACKSON :
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Appellant : No. 1340 EDA 2020
Appeal from the PCRA Order Entered July 7, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007838-2016
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.* MEMORANDUM BY PANELLA, P.J.: FILED JUNE 29, 2021 Ameer Jackson appeals from the order entered in the Philadelphia County Court of Common Pleas on July 7, 2020, dismissing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541- 9546, without a hearing. Jackson argues the PCRA court erred in declining to hold an evidentiary hearing on his claims of ineffective assistance of trial counsel. After careful review, we affirm.
We previously summarized the factual and procedural history on direct appeal:
On January 7, 2016, Officer Charles Kapusniak of the Narcotics Field Unit was conducting surveillance on controlled drug buys with the use of a confidential informant (CI). On that day, Officer Kapusniak, along with members of his “squad[,]” gave the CI $20 prerecorded buy money and sent the CI to the intersection of 2200
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* Former Justice specially assigned to the Superior Court.
Fitzwater where Officer Kapusniak had set up surveillance. There, Officer Kapusniak observed the CI approach [Jackson],[] engage him in a brief conversation and then hand[] him [the] prerecorded buy money in exchange for small items. The CI also received a phone number. Following this exchange, the CI met with another police officer, Officer Burada, and the CI gave him red packets, each containing an off-white chunky substance of alleged crack cocaine.
On January 15, 2016, a call was made to the number the CI was given and the male voice on the other end instructed the CI to meet at a predetermined location. Officer Kapusniak went to the designated area and set up surveillance. There, he observed [Jackson] exit a home, meet with the CI, and accept US currency and prerecorded buy money in exchange for [] small red items.
These two red packets contained an off-white chunky substance of alleged crack cocaine.
On March 22, 2016, the same CI was utilized once again. The CI, in the presence of Officer Kapusniak, dialed the phone number previously given, and had a drug[-]related conversation with a male voice in reference to purchasing crack cocaine. Once again, the CI was given a designated location to meet, and Officer Kapusniak set up surveillance. There, Officer Kapusniak observed the CI approach [Jackson]. After a brief conversation, the CI handed [Jackson] the prerecorded buy money in exchange for small items, which [Jackson] removed from the front of his pants.
The CI returned back to [the police] and turned over two green[-
]tinted packets each containing an off-white chunky substance, allege[dly] crack cocaine. A fourth controlled buy occurred on March 30, 2016 using a different CI. Similarly, in exchange for prerecorded buy money, the CI received two green tinted packets.
On that day, and each of the aforementioned days, Officer Kapusniak performed a [Narcotics Field Drug Test Kit] on the substance, which tested positive for cocaine base.
On April 1, 2016, Officer Kapusniak and members of his squad executed [a] search warrant at a home on Kemball Street. Officer Burada arrested [Jackson], who was sleeping in the bedroom. In that bedroom, officers recovered a cell phone, which rang when the number the CI had provided to Officer Kapusniak was dialed, a scale, and three baggies, which contained blue, yellow[,] and green tinted packets, all new [and] unused.[]
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Following his arrest, [Jackson] was charged with the aforementioned crimes. After an on-the-record colloquy, [Jackson] proceeded to a non-jury trial. After testimony from Officer Kapusniak and [Jackson],[] the trial court found [Jackson]
guilty on all counts charged. That same day, [Jackson] was sentenced to three years’ probation. No post-sentence motions were filed.
Commonwealth v. Jackson, 84 EDA 2017, at 1-4 (Pa. Super. filed 10/31/2018) (citations and internal quotation marks omitted).
After filing a timely notice of appeal, trial counsel sought and was granted leave to withdraw as counsel. Appellate counsel was appointed and later filed an Anders1 brief and a petition to withdraw. After review, we agreed there were no non-frivolous issues preserved for appeal, and affirmed Jackson’s judgment of sentence. See Commonwealth v. Jackson, 84 EDA 2017 (Pa. Super. filed 10/31/2018) (unpublished memorandum). While his direct appeal was pending in this Court, Jackson’s probation was revoked and he was re-sentenced to three additional years of probation. Jackson did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.
On January 4, 2019, Jackson filed a pro se PCRA petition arguing his constitutional rights were violated because he was not given the right to face his accuser, specifically the CI.2 Counsel was appointed and filed an amended petition, raising multiple claims of ineffective assistance of trial counsel. In
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1 Anders v. California, 386 U.S. 738 (1967).
2 On February 15, 2019, Jackson’s probation was again revoked and he was re-sentenced to an additional three years of probation.
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response, the Commonwealth filed a motion to dismiss, arguing that Jackson’s claims lacked merit.
The PCRA court subsequently issued notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. After receiving no response from Jackson, the PCRA court issued an order dismissing the petition. This appeal followed.
On appeal, Jackson presents two questions for our review:
1. Whether the [c]ourt erred in denying [Jackson]’s PCRA petition without an evidentiary hearing on the issues raised in the amended PCRA petition.
2. Whether the court erred in not granting relief on the PCRA petition alleging trial counsel was ineffective.
Appellant’s Brief, at 8.
“The standard of review for an order denying post-conviction relief is limited to whether the record supports the PCRA court’s determination, and whether that decision 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” Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation omitted).
Generally, “[t]he PCRA court may dismiss a petition without a hearing when the court is satisfied that there are no genuine issues concerning any material fact, the defendant is not entitled to post conviction collateral relief, and no legitimate purpose would be served by any further proceedings.” Commonwealth v. Johnson, 139 A.3d 1257, 1273 (Pa. 2016) (citation and
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internal quotation mark omitted). When the PCRA court denies a petition without an evidentiary hearing, we “examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.” Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004) (citation omitted).
In his amended PCRA petition, Jackson alleged that trial counsel was ineffective for failing to (1) file a motion to suppress evidence found during Jackson’s arrest, (2) file a motion to reveal the identity of the CI, (3) file a motion that the verdict was against the weight of the evidence, and (4) call alibi witnesses to testify. His amended petition included a memorandum of law in support of his petition. See Amended PCRA Petition, 8/12/2019, at 5- 21. Further, Jackson attached a letter from himself, and three affidavits from his mother, sister, and girlfriend, all of whom he claims are alibi witnesses. See id. at Appendix A.
All four of Jackson’s claims raised allegations of ineffectiveness of counsel. As such, he was required to plead and prove:
ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place … Appellant must demonstrate: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.
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Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005) (citations omitted).
Moreover, “[w]e presume counsel is effective and place upon Appellant the burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d 1262, 1267-1268 (Pa. Super. 2008) (citation omitted). This Court will grant relief only if an appellant satisfies each of the three prongs necessary to prove counsel ineffective. See Commonwealth v. Natividad, 938 A.2d 310, 321- 22 (Pa. 2007) (citation omitted). Thus, we may deny any ineffectiveness claim if “the petitioner's evidence fails to meet a single one of these prongs.” Id. at 321 (citation omitted).
To avoid such a result, counsel must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. However, [t]he controlling factor in determining whether a petition may be dismissed without a hearing is the status of the substantive assertions in the petition.
Commonwealth v. Stanley, 632 A.2d 871, 872 (Pa. 1993) (internal citations and quotation marks omitted). Jackson was required to set forth an offer of facts supporting his claims in his petition, as an evidentiary hearing “is not meant to function as a fishing expedition for any possible evidence that may support some speculative claim of ineffectiveness.” Commonwealth v. Jones, 811 A.2d 994, 1003 n. 8 (Pa. 2002) (citation omitted).
The first claim in Jackson’s petition was that trial counsel was ineffective for failing to file a motion to suppress evidence found during Jackson’s arrest.
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He asserts that no warrant was presented at trial and argues that no warrant existed. In the alternative, he asserts that even if there was a warrant, the entry into the house was illegal. Specifically, he claims “the police never knocked to announce their presence, nor did they furnish a warrant upon entry; instead they simply kicked the door in.” Amended PCRA Petition, at 13.
Jackson’s entire argument in this regard is that if trial counsel had filed a motion to suppress, “the suppression hearing would have provided an opportunity to delve deeper into the specific actions taken by police during the arrest.” Id. at 14. He further claims that if he had been successful at the suppression hearing, the case would have been dismissed altogether. Id.
We agree with the Commonwealth that Jackson failed to establish that he suffered prejudice from counsel’s failure to file the suppression motion. Even if we assume that the evidence seized at Jackson’s home would have been suppressed, Jackson wholly failed to allege or argue how this suppression would have affected the verdict. As the Commonwealth notes, the suppression of the physical evidence seized at Jackson’s home would not have affected any of the testimony or evidence of the four separate drug sales observed by officers. Jackson’s failure to address how the suppression of the fruits of the search would have changed the verdict is fatal to his claim on appeal. The PCRA court did not err in dismissing Jackson’s first claim of trial counsel ineffectiveness without a hearing.
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The second claim of trial counsel ineffectiveness in Jackson’s amended petition was that trial counsel was ineffective for failing to file a motion to disclose the identity of the CI. Specifically, Jackson argues that if trial counsel had filed a motion to reveal the CI, it would have been granted, and the CI would have been present at trial to testify regarding the evidence against Jackson. He claims the CI’s testimony would have changed the outcome of the trial.
Jackson was not automatically entitled to the identity of the CI:
The Commonwealth enjoys a qualified privilege to withhold the identity of a confidential source. In order to overcome this qualified privilege and obtain disclosure of a [CI]’s identity, a defendant must first establish, pursuant to Rule 573(B)(2)(a)(i), that the information sought is material to the preparation of the defense and that the request is reasonable. Only after the defendant shows that the identity of the confidential informant is material to the defense is the trial court required to exercise its discretion to determine whether the information should be revealed by balancing relevant factors, which are initially weighted toward the Commonwealth.
In striking the proper balance, the court must consider the following principles:
A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations[,] the trial court may require disclosure and, if the Government withholds the information, dismiss the action.
[N]o fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance
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renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.
Commonwealth v. Watson, 69 A.3d 605, 607-608 (Pa. Super. 2013) (citations omitted).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the PCRA court we conclude that Jackson’s claim of trial counsel ineffectiveness based on the identity of the CI is without merit. The PCRA court opinion properly addresses Jackson’s claim, and we adopt it as our own. See PCRA Court Opinion, 7/22/2020, at 7- 10 (concluding Jackson failed to present any evidence, or even a reasonable probability, that the CI could have provided specific, exculpatory testimony helpful to Jackson’s case; concluding Jackson’s argument that the CI was the only disinterested witness to the transactions does not tip the balance in his favor because this one factor is not determinative of whether a CI’s identity should be revealed; stating the court would not have rendered a different verdict even if a motion to ascertain the CI’s identity had been filed and granted because there was sufficient evidence presented, including that officers involved in the drug investigation observed Jackson engaged in multiple drug transactions and evidence was recovered, including a cell phone and drug paraphernalia connection Jackson to the crimes charged).
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We agree that Jackson’s allegations in his petition provided no basis for the PCRA court to conclude that the CI’s identity would help Jackson in his defense. Jackson’s apparent defense was that he was misidentified. However, Jackson’s guilt was not simply based on the CI’s identification of him, nor was it based on a single officer’s identification of a single controlled buy. Rather, the police here conducted several carefully controlled buys where they searched the CI immediately prior to each and had the CI under observation the entire time. Further, multiple police officers, including Officer Kapusniak, who testified at trial, directly observed the actual transfer of drugs from Jackson to the CI during every interaction. After each encounter, the CI proceeded directly back to the police and handed over drugs. Jackson failed to allege how questioning the CI would have bolstered Jackson’s defense of misidentification. Given these circumstances, the PCRA court did not err in denying relief based on Jackson’s second claim of trial counsel ineffectiveness without a hearing.
Next, Jackson argues trial counsel was ineffective for failing to file a post-sentence motion challenging the weight of the evidence, and consequently waiving the claim for appellate review.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the PCRA court we conclude that Jackson’s third claim of trial counsel ineffectiveness is without merit. The PCRA court opinion properly addresses Jackson’s claim, and we adopt it as our
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own. See PCRA Court Opinion, 7/22/2020, at 10-12 (finding the court did not err in denying relief on this claim because even if a motion preserving the weight claim had been filed, the court would have denied it and not granted a new trial; finding the guilty verdicts do not shock the conscience because the court credited the evidence presented that Jackson engaged in several drug transactions and police recovered evidence connecting Jackson to the illegal drug activity, and found Jackson’s self-serving testimony lacked credibility).
Accordingly, the PCRA court did not err in denying relief on Jackson’s third claim of trial counsel ineffectiveness without a hearing.
In the fourth and final issue raised in his amended petition, Jackson claims trial counsel was ineffective for failing to call certain alibi witnesses at trial. Specifically, Jackson claims trial counsel should have called his mother, his sister, and his girlfriend.
When a defendant claims counsel was ineffective based upon trial counsel's failure to call a witness, he is entitled to relief only if he proves all of the following: (a) the witnesses existed, (b) the witnesses were available, (c) counsel was informed of or should have known of the witnesses, (d) the witnesses were willing to cooperate and testify for the defendant at trial, and (e) how the absence of the witnesses' testimony prejudiced the defendant, in that it denied him a fair trial. Commonwealth v. Miller, 868 A.2d 578, 581– 582 (Pa. Super. 2005).
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After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the PCRA court we conclude that Jackson’s final claim of trial counsel ineffectiveness is without merit. The PCRA court opinion properly addresses Jackson’s claim, and we adopt it as our own. See PCRA Court Opinion, 7/22/2020, at 12-15 (first, concluding Jackson failed to present sufficient facts and information in the affidavits attached to his amended petition, as two of them simply stated Jackson was not in the city when the crimes were committed and did not identify what city he was not in, where he actually was, or set forth specific dates or times; finding the third affidavit lacked specific detail, as it simply stated Jackson was in Reading, Pennsylvania but contained no other details establishing an alibi, and additionally contradicted Jackson’s trial testimony in which he stated he was in Scranton, Pennsylvania on one of the dates in question; second, concluding the court would not have rendered a different verdict even if the alibi witnesses had testified because the Commonwealth’s testimony proved beyond a reasonable doubt that Jackson was the person who engaged in the transactions with the CI; third, concluding any potential helpful testimony from the alibi witnesses would have been compromised due to their close relationship with Jackson which would affect a finding of credibility; and finally concluding trial counsel was not ineffective for failing to call the three alibi witnesses because any testimony from them would have merely been cumulative of Jackson’s trial testimony).
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Accordingly, the PCRA court did not err in dismissing Jackson’s final claim of trial counsel ineffectiveness without a hearing.
As none of the claims in Jackson’s amended petition alleged sufficient facts to justify a hearing, the PCRA court did not err in dismissing the petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/29/2021
Circulated 06/22/2021 11:53 AM 0083_Opinion