J-S05013-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : GORDON LOUIS PERRY, II, : : Appellant : No. 488 WDA 2014
Appeal from the PCRA Order February 20, 2014, Court of Common Pleas, Blair County, Criminal Division at No(s): CP-07-CR-0001853-2009 and CP-07-CR-0001855-2009
BEFORE: DONOHUE, SHOGAN and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.: FILED MAY 15, 2015
Gordon Louis Perry, II (“Perry”) appeals from the February 20, 2014
order entered by the Blair County Court of Common Pleas denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. On appeal, counsel for Perry (“PCRA Counsel”) has
filed a motion to withdraw as counsel and a “no-merit” brief pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). Upon review,
we affirm and grant PCRA Counsel’s motion to withdraw.
On January 20, 2010, a jury convicted Perry of two counts each of
possession of a controlled substance, possession of a controlled substance
with intent to deliver, and criminal use of a communications facility. The
convictions were based on evidence that Perry sold crack cocaine to a J-S05013-15
confidential informant on July 6 and 7, 2009. Perry appealed his conviction
and this Court affirmed in an unpublished memorandum on December 6,
2010. On November 23, 2011, Perry filed a timely pro se PCRA petition.1
The PCRA court appointed counsel, who filed an amended PCRA petition on
June 7, 2012, raising four issues: (1) ineffective assistance of counsel for
failing to file a pretrial motion to suppress statements made by the
confidential informant; (2) ineffective assistance of counsel for not objecting
to the Commonwealth’s failure to provide all discovery; (3) ineffective
assistance of counsel for failing to properly cross-examine the police
witnesses and confidential informant; and (4) trial court error for appointing
a public defender to represent Perry on direct appeal, as this precluded him
from raising his trial counsel’s ineffectiveness on direct appeal. The PCRA
court held hearings on the amended PCRA petition on February 8 and April
19, 2013.
On April 19, 2013, the PCRA court issued an order for appointed
counsel to file upon receipt of the PCRA hearing transcripts “a summary of
his position with some detail as to the individual issues.” PCRA Court Order,
4/19/13. On May 9, 2013, appointed counsel filed a post-hearing
memorandum, including therein two issues that arose through testimony
provided at the PCRA hearing: (1) an abuse of discretion by the trial court
1 This petition appears as having been filed on the criminal docket, but is listed as “missing” thereon and is not contained in the certified record on appeal. See Criminal Docket at 8.
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for failing to appoint new counsel to represent Perry at trial upon learning
that trial counsel had also represented the confidential informant in an
unrelated criminal matter and (2) ineffective assistance of counsel for failing
to obtain the arresting officer’s disciplinary records.2
On August 20, 2013, the Honorable Jolene Grubb Kopriva, President
Judge of Blair County, issued an order appointing PCRA Counsel to represent
Perry.3 On February 20, 2014, the PCRA court issued an opinion and order
denying Perry’s amended PCRA petition. Perry filed a timely notice of
appeal, followed by a court-ordered concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). On July 18, 2014, the PCRA
court filed a statement in lieu of a written opinion pursuant to Pa.R.A.P.
1925(a), referring this Court to the existing record for the reasoning behind
its decision.
On February 4, 2015, upon finding that the brief filed by PCRA Counsel
neither advocated on Perry’s behalf nor complied with the Turner/Finley
2 In its opinion denying Perry’s request for PCRA relief, the PCRA court references a letter filed by originally appointed counsel “supplementing” the amended PCRA petition that reportedly raised the issue of trial counsel’s ineffectiveness for failing to request the arresting officers’ disciplinary files. See PCRA Court Opinion, 2/20/14, at 8. This document does not appear of record. As all of the issues raised were properly preserved through other means, however, it does not hamper our review on appeal. 3 According to the PCRA court, appointment of PCRA Counsel occurred after originally appointed counsel sustained an injury during an unrelated criminal trial. PCRA Court Opinion, 2/21/14, at 7.
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requirements to withdraw as counsel, we remanded the case for PCRA
Counsel to file a revised brief on appeal. PCRA Counsel timely complied.
Prior to addressing the issue raised on appeal, we must first determine
whether PCRA Counsel satisfied the requirements set forth in
Turner/Finley for this Court to grant him permission to withdraw as
counsel.
The holdings of [Turner/Finley] mandate an independent review of the record by competent counsel before a PCRA court or appellate court can authorize an attorney’s withdrawal. The necessary independent review requires counsel to file a “no- merit” letter detailing the nature and extent of his review and list each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit. See [Commonwealth v.] Pitts, [981 A.2d 875, 876 (Pa. 2009)].
In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006) abrogated in part by Pitts, supra, this Court imposed additional requirements on counsel that closely track the procedure for withdrawing on direct appeal. Pursuant to Friend, counsel is required to contemporaneously serve upon his client his no-merit letter and application to withdraw along with a statement that if the court granted counsel’s withdrawal request, the client may proceed pro se or with a privately retained attorney. Though [then- ]Chief Justice Castille noted in Pitts that this Court is not authorized to craft procedural rules, the Court did not overturn this aspect of Friend as those prerequisites did not apply to the petitioner in Pitts. See Pitts, supra at 881 (Castille, C.J., concurring).
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After the decision in Pitts, this Court held in Commonwealth v. Widgins, 29 A.3d 816 (Pa. Super. 2011), that the additional procedural requirements of Friend were still applicable during collateral review.
Commonwealth v. Freeland, 106 A.3d 768, 774-75 (Pa. Super. 2014)
(quoting Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super.
2012), appeal denied, 64 A.3d 631 (Pa. 2013)).
In the case at bar, PCRA Counsel has fulfilled the procedural
requirements of Turner/Finley. PCRA Counsel states that he reviewed the
memorandum filed by prior counsel, transcripts from the case, the PCRA
court’s decision, and “applicable case law,” and “does not see any basis for
reversing the trial court’s decision.” Turner/Finely Brief at 2. He then lists
each issue raised in the amended PCRA petition and post-hearing
memorandum filed by prior counsel appointed to represent Perry and states
(albeit briefly) why he believes the issues are meritless. Id. at 3. PCRA
Counsel appended a request to withdraw as counsel and the letter he sent to
Perry, in which he informed Perry of his right to retain new counsel or
proceed pro se, and which also indicated that he sent Perry a copy of his no-
merit letter. Perry neither responded to Counsel’s letter nor filed anything in
this Court.4
4 We note that in the letter sent to Perry, PCRA Counsel informed Perry that he had forty-five days to file in this Court a response in support of his appeal. PCRA Counsel’s Letter, 2/20/15. We awaited the expiration of that timeframe before deciding this appeal.
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Having found that PCRA Counsel complied with the Turner/Finley
requirements, we now turn to our review of the issues raised on appeal,
which, as stated above, mirror those raised in the amended PCRA petition
and the post-hearing memorandum. We review a PCRA court’s decision to
determine whether it is supported by the record and to ensure it is free of
legal error. Commonwealth v. Hackett, 99 A.3d 11, 50 (Pa. 2014). “We
cannot disturb the factual findings of the PCRA court, which hears evidence
and passes on the credibility of witnesses, if they are supported by the
record, even where the record could support contrary findings.” Id. (citation
omitted). Our scope of review is limited to the PCRA court’s findings and the
evidence presented at the PCRA hearing, which we view in the light most
favorable to the prevailing party. Id. at 50-51.
In resolving a question of counsel’s effectiveness, we begin with the
presumption that counsel rendered effective assistance. Commonwealth
v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that
presumption, the petitioner must establish: “(1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s action or failure
to act; and (3) the petitioner suffered prejudice as a result of counsel’s
error, with prejudice measured by whether there is a reasonable probability
that the result of the proceeding would have been different.” Id. (citation
omitted). If the petitioner fails to prove any of these prongs, the claim is
subject to dismissal. Id.
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The first issue raised was a claim of trial counsel’s ineffectiveness for
failing to file a motion to suppress the statements made by the confidential
informant obtained through an allegedly illegal wiretap. See Amended PCRA
Petition, 6/7/12, ¶¶ 19-25. The PCRA court found this issue meritless, as
the wiretap in question was lawfully obtained. PCRA Court Opinion, 2/20/14,
at 5-6. We agree.
Pursuant to section 5704 of the Wiretapping and Electronic
Surveillance Control Act, it is not unlawful, and no court approval is required,
for:
(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities, including, but not limited to, the crimes enumerated in section 5708 (relating to order authorizing interception of wire, electronic or oral communications), where:
* * *
(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be initiated, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however, such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted
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communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom[.]
18 Pa.C.S.A. § 5704(2)(ii).
At the PCRA hearing, trial counsel testified that he reviewed the
paperwork attendant to the wiretap and found no reason to file a
suppression motion on that basis, as “everything had been done properly[.]”
N.T., 4/19/13, at 6. The trial record supports that conclusion, as police
testified that the confidential informant, Donna Boore (“Boore”), consented
to the wiretap and that the police had Boore meet with the prosecutor to
comply with the above requirements. N.T., 1/20/10, at 136.
Perry testified at the PCRA hearing to his belief that Commonwealth
v. Schaeffer, 536 A.2d 354 (Pa. Super. 1987) (en banc), aff’d per curiam
without opinion by an equally divided court, 652 A.2d 294 (Pa. 1994),
compels a finding that the wiretap in question was illegal. N.T., 2/8/13, at
8-9. The Schaeffer case, however, is inapposite to the case at bar. As
aptly stated by the PCRA court,
In Schaeffer, the Pennsylvania Superior Court held that warrantless electronic monitoring of conversations in the suspect’s home, even one-party consensual monitoring, violates Pennsylvania’s [c]onstitutional protections in Article I, § 8 against unreasonable searches and seizures. [Schaeffer, 536 A.2d at 355]. However, [Perry]’s reliance on Schaeffer is misguided; the interceptions at issue were not obtained in [Perry]’s home and one-party
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consensual interceptions pursuant to [s]ection 5704(2)(ii) of the Pennsylvania Wiretapping and Electronic Surveillance Control Act are not unlawful.
PCRA Court Opinion, 2/20/14, at 5-6.
“[A]lthough the failure to file a suppression motion may be evidence of
ineffective assistance of counsel, if the basis for the motion is meritless
counsel cannot be deemed ineffective.” Commonwealth v. Costanzo, 455
A.2d 153, 155 (Pa. Super. 1983) (citing Commonwealth v. Ransome, 402
A.2d 1379, 1381 (Pa. 1979)). As such, this claim provides no basis for
relief. See Bomar, 104 A.3d at 1188.
Perry next raised a claim of trial counsel’s ineffectiveness for not
objecting to the Commonwealth’s failure to provide discovery in this case.
See Amended PCRA Petition, 6/7/12, ¶¶ 26-29. Perry contends he did not
receive the following: (1) Boore’s criminal history; (2) records of the
authorization by the prosecutor for the wiretap; (3) lab analysis regarding
the crack cocaine tested; (4) phone records confirming that Perry was the
individual recorded with the wiretap; and (5) the arresting officers’
disciplinary files. The PCRA court found that each claim was meritless.
PCRA Court Opinion, 2/20/14, at 7-12. Again, we agree.
Beginning with Boore’s criminal history, the record reflects that at trial,
counsel extensively cross-examined Boore regarding her criminal history,
belying Perry’s claim that the Commonwealth failed to turn over her criminal
record in discovery. Trial counsel questioned her about cases that were
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pending at the time of her testimony, N.T., 1/20/10, at 228-29, 255, as well
as prior criminal convictions on her record, id. at 255-56. There is therefore
no support in the record for Perry’s claim that the Commonwealth withheld
this information.
Nor is there support for his claim that the Commonwealth did not
provide in discovery records supporting the authorization of the wiretap by
the prosecutor. To the contrary, trial counsel testified at the PCRA hearing:
“I was provided documentation regarding the wire taps [sic][.]” N.T.,
4/19/13, at 6. The PCRA court found this testimony credible. PCRA Court
Opinion, 2/20/14, at 8.
Regarding the lab analysis of the crack cocaine, the record reflects that
trial counsel stipulated at trial that the controlled substance recovered by
police from Boore following the controlled buys was crack cocaine. N.T.,
1/20/10, at 115-18. The Commonwealth read the stipulation into the
record, which contained a lengthy and detailed explanation of the testing
procedures, the expert testimony that would have been provided by the
Commonwealth, the results of the testing, and that the lab reports were
received by police. Id. There is nothing in the record to support a claim
that the Commonwealth did not provide this information to the defense in
advance of trial, and neither the PCRA petition nor the testimony at the
PCRA hearing establishes a basis for us to conclude otherwise. Perry thus
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failed to satisfy his burden of proof on this issue. See Bomar, 104 A.3d at
1188.
Perry also claims a discovery violation in the Commonwealth’s failure
to turn over phone records confirming that the phone to which Boore placed
a call was Perry’s or that it was Perry’s voice on the other end of the line. As
Perry admitted at the PCRA hearing, however, the police never obtained
such records. N.T., 2/8/13, at 28, 32. The trial record reflects that counsel
cross-examined the police on the failure to obtain these records and used
this in his summation to argue to the jury that it may not have been Perry’s
voice they heard in the wiretapped conversations. N.T., 1/20/10, at 142-43;
N.T., 1/21/10, at 45. There is no discovery violation if the Commonwealth
fails to disclose evidence that it does not possess. Commonwealth v.
Collins, 957 A.2d 237, 253 (Pa. 2008) (citation omitted).
Lastly, Perry believed the Commonwealth was required to provide in
discovery the arresting officers’ internal disciplinary files. At the PCRA
hearing, Perry testified that he did not know of anything in the files that
would be helpful to his case, but that he wanted to review them to see if
there was any information he could use for impeachment purposes. N.T.,
2/8/13, at 33. In his argument in support of this claim contained in his
post-hearing memorandum, Perry relied upon Commonwealth v. French,
611 A.2d 175 (Pa. 1992).
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In French, the defendant alleged that her assault on a police officer
occurred in response to that officer’s use of excessive force on her boyfriend
and friend. Id. at 176-77. The internal affairs division of the police
conducted an investigation of the events giving rise to the defendant’s
charges, and the officer’s personnel file contained statements of witnesses
who testified at the defendant’s trial regarding the events of the day. Id. at
179. The Commonwealth contended that the files were confidential, and
following an in camera review, the trial court agreed and prohibited defense
counsel from reviewing the witnesses’ statements. Id. On appeal, this
Court found, and our Supreme Court agreed, that remand was required for
defense counsel to examine the statements contained in the internal affairs
files to determine whether the witness statements contained therein would
have been beneficial to the defense, and if so, for a new trial. Id. at 179-
80.
French is wholly inapposite to the case before us. Unlike the
defendant in French, Perry does not contend that the arresting officers’
disciplinary files contain any information related to the case, and instead
seeks to review them in a proverbial fishing expedition to see if he could find
any evidence of past police misconduct. This is impermissible. To be
entitled to review a police officer’s disciplinary files, “a defendant must be
able to articulate a reasonable basis for his request[.]” Commonwealth v.
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Mejia-Arias, 734 A.2d 870, 876 (Pa. Super. 1999). Having failed to do so,
Perry is not entitled to relief on this basis.
As none of Perry’s discovery-related claims have any support in the
record, counsel was not ineffective for failing to object to these meritless
allegations of discovery violations by the Commonwealth. Thus, no relief is
due on this issue.
Perry further claimed that trial counsel failed to effectively cross-
examine Boore and the arresting officers. Amended PCRA Petition, 6/7/12,
¶¶ 30-33. Regarding trial counsel’s cross-examination of Boore, Perry
testified at the PCRA hearing that trial counsel failed to “delve into” Boore’s
bias in testifying for the Commonwealth while facing multiple charges for her
own drug sales and possession; that she was testifying “under pretenses of
trying to get herself out of trouble”; and properly challenge her credibility.
N.T., 2/8/13, at 16. The PCRA court found, and our review of the record
confirms, that this claim is entirely meritless. PCRA Court Opinion, 2/20/14,
at 12-13. Trial counsel questioned Boore at length regarding her multiple
pending criminal charges – one of which related to her concealment from
police of crack cocaine purchased during a controlled buy with Perry – and
the benefits she hoped to receive at sentencing in those cases by serving as
a Commonwealth witness in Perry’s case. N.T., 1/20/10, at 228-29, 254-55,
260-61. Trial counsel attacked her credibility, repeatedly reminding the jury
of prior crimin falsi charges she had on her record, that she lied to police
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about using drugs while serving as a confidential informant, concealed crack
she obtained during a controlled buy with Perry, and that she further lied to
police about what she was going to do with the stolen crack cocaine. Id. at
249-50, 255-57. Thus, there is no merit to this contention.
Regarding trial counsel’s cross-examination of the arresting officers,
Perry testified at the PCRA petition to his belief that counsel failed to
question the officers regarding conflicts in their testimony, why police did
not arrest Boore when she stole the crack cocaine during the controlled buy,
and why police allowed Boore to drive without a license during her time as a
confidential informant. N.T., 2/8/13, at 17, 30. Again, the PCRA court
found, and our review of the record confirms, that trial counsel questioned
the arresting officers in all of these areas, rendering this claim meritless.
See PCRA Court Opinion, 2/20/14, at 14-15; N.T., 1/20/10, at 160, 184-86,
248; N.T. 1/21/10, at 40.
Perry further raised two claims of trial court error based on: (1) its
appointment of another assistant public defender to represent him on direct
appeal, thus foreclosing his ability to raise trial counsel’s ineffectiveness on
direct appeal, and (2) its failure to appoint new counsel once trial counsel
disclosed, as the inception of trial, that trial counsel briefly represented
Boore in an unrelated criminal matter. Beginning with the first argument, it
is clear that Perry was not prejudiced by the inability to raise claims of trial
counsel’s ineffectiveness on direct appeal, as he had the opportunity to raise
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them in his timely filed PCRA petition and have them reviewed by this Court
in the instant appeal. Therefore, this argument does not entitle him to
relief.
His second argument relating to the trial court’s error in failing to
appoint new counsel to represent Perry at trial likewise affords him no relief.
The record reflects that at the beginning of trial, trial counsel stated the
following:
Your Honor, … approximately some time in mid to late July, the confidential informant in this case[,] Donna Boore[,] had a case at Central Court in Altoona … for a DUI[.] [S]he made an application to the Public Defender’s Office [and] she was accepted [for representation.] I personally was the one who met with her, constructed a plea agreement and went ahead and waived her case. When [I] came back to my office[,] they realized that she was a confidential informant on an open case that we got [sic] on [] Perry. At that time[,] probably a week or two later[,] she was conflicted out and given a court appointed attorney. … [A]ll [of] this information was related to Mr. Perry approximately ten minutes ago and I guess we can just see how he feels about me continuing to represent him with that newfound knowledge.
N.T., 1/20/10, at 4.
Perry requested that the trial court appoint new counsel to represent
him. Id. at 5. The trial court questioned trial counsel about his ability to
continue in his representation of Perry, and trial counsel responded that his
brief representation of Boore would not influence his performance, but that
he was concerned that Perry’s confidence in trial counsel’s ability to
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represent him would be diminished. Id. Thereafter, the prosecutor
questioned trial counsel on the record about his ability to continue
representing Perry at trial. See id. at 104-09. Through this questioning,
trial counsel stated that he derived no financial benefit from his
representation of Boore; he did not represent Boore in any matter that
related in any way to Perry’s case; he met Boore on only one occasion and
the conversation was limited to discussing her driving under the influence
charge then pending; and he did not obtain any confidential or privileged
information from Boore that would be helpful in his cross-examination of her
as a witness in this matter. Id.
Prior to testifying, Boore was also questioned by the Commonwealth
without the jury present. See id. at 201-03. She indicated that although
she recalled that trial counsel represented her at the preliminary hearing
stage on a DUI charge, she spoke with him for a total of two minutes and
the conversation was limited solely to the pending charges. Id. at 201-02.
She did not share any personal or privileged information with trial counsel
and waived any potential conflict of interest that might exist. Id. at 203.
Addressing the burden of proof related to a claim of a conflict of
interest by counsel, our Supreme Court recently held:
[A] petitioner “cannot prevail on a conflict of interest claim absent a showing of actual prejudice.” Commonwealth v. Weiss, [81 A.3d 767, 794 (Pa. 2013)]; see also Commonwealth v. Hawkins, [] 787 A.2d 292, 297 (2001) (offering that petitioner
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must demonstrate that counsel’s prior representation of Commonwealth witness adversely affected counsel’s representation of petitioner under PCRA). … [A]lthough prejudice is presumed when there exists an actual conflict of interest, this presumption is only applicable when counsel actively represented conflicting interests. Weiss, [81 A.3d at 795 n.16]. Where counsel does not actively represent conflicting interests, a claim based upon the appearance of a conflict of interest lacks merit. Id.
Commonwealth v. Reid, 99 A.3d 427, 442-43 (Pa. 2014).
Perry failed to satisfy his burden of proving that an actual conflict of
interest existed based upon trial counsel’s brief representation of Boore in an
unrelated criminal matter. At both the PCRA hearing and in his post-hearing
memorandum, Perry pointed only to his personal discomfort with the fact
that trial counsel previously represented Boore. See N.T., 2/8/13, at 14-15;
Memorandum of Law, 5/9/13, at 6, 7-8. The record, however, does not
support a finding that trial counsel was actively representing conflicting
interests or that Perry suffered any prejudice by trial counsel’s prior
representation of Boore. See Reid, 99 A.3d at 442-43. To the contrary, as
stated hereinabove, trial counsel thoroughly cross-examined Boore, bringing
to light her history of lying, lengthy criminal history, pending criminal
charges, and bias motivated by her hope for leniency at sentencing in her
own criminal matters. N.T., 1/20/10, at 228-29, 249-50, 254-57, 260-61;
see Commonwealth v. Tharp, 101 A.3d 736, 754-55 (Pa. 2014) (finding
no actual bias in trial counsel’s prior representation of jailhouse informants
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where the appellant does not show a “nexus” between the prior
representation and counsel’s performance at trial, i.e., that counsel
“restricted his cross-examination” of his prior clients because of the conflict
of interest). We therefore find no error in the trial court’s failure to appoint
new counsel at trial.
Order affirmed. Motion to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/15/2015
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