J-S60011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL ALPHONSE POTTER,
Appellant No. 3239 EDA 2014
Appeal from the PCRA Order Entered November 4, 2014 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0007337-2007
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 05, 2015
Appellant, Michael Alphonse Potter, appeals from the November 4,
2014 order denying his petition for relief filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant raises several
ineffective assistance of counsel claims regarding his trial counsel, Michael A.
Frisk, Jr.1 We affirm.
The PCRA court set forth the facts and procedural history of Appellant’s
case, as follows:
A jury found [Appellant] guilty of three counts of robbery, one count of burglary, one count of aggravated assault, one count of conspiracy to commit robbery, one count of conspiracy to commit burglary and one count of criminal solicitation. The ____________________________________________
1 As will be discussed in more detail, infra, Mr. Frisk has been temporarily disbarred. Therefore, we will refer to him herein as Mr. Frisk, rather than Attorney Frisk. J-S60011-15
Honorable Paul W. Tressler, now retired, presided over the trial and later imposed an aggregate sentence of 16 to 45 years in prison. [Appellant] filed a direct appeal to the Pennsylvania Superior Court, which affirmed the judgment of sentence. Commonwealth v. Potter, No. [2028] EDA 2008, Memorandum (April 6, 2009).
In his [Pa.R.A.P.] 1925(a) Opinion, Judge Tressler explained that one of the robbery convictions was based upon [Appellant’s] inflicting serious bodily injury on Joseph Hevener, while the other two robbery convictions were based upon [his] inflicting or threatening bodily injury on Hevener and his wife, Nancy Hevener, respectively. The Opinion further detailed that [Appellant], who was having an affair with Nancy Hevener[,]
recruited two others to enter the victims’ home as part of a conspiracy to steal a large sum of cash they kept on hand. One of the accomplices, Andrew Bing, testified that he met [Appellant] and another accomplice, Tyreke Lawson, on the morning of the burglary, and [Appellant] told Bing and Lawson that the victims kept $400,000 cash in their home. The three made a plan to steal the money while the victims were at home. According to the plan, Bing and Lawson would first enter the home and take the cash. [Appellant] drove Bing and Lawson to the neighborhood where the victims lived, parked his SUV in a concealed spot and sent his co-conspirators on their way. The burglary did not go as planned because the victims resisted, and after a vicious struggle, Bing and Lawson fled in a pickup truck owned by the victims. Joseph Hevener suffered serious bodily injuries including a cut that required approximately fifty stiches to close and permanent visual impairment that resulted [from] an attempt by one of the assailants to gouge out his eyes.
Opinion, Tressler, J., p. 2 (Sept. 18, 2008).
After the Superior Court affirmed the judgment of sentence, [Appellant] did not file a petition for permission to appeal to the Pennsylvania Supreme Court. His judgment of sentence, thus, became final on May 6, 2009. The following month, [Appellant] commenced post-conviction collateral proceedings. Ultimately, the Superior Court reversed the dismissals of [Appellant’s] petition for post[-]conviction relief and a motion for new trial based on newly discovered evidence.
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Commonwealth v. Potter, [No.] 2789 EDA 2010, Memorandum ([December 21, 2011]).[2]
On remand, [Appellant], through privately retained counsel, filed an amended petition seeking post-conviction relief. The petition alleged trial counsel ineffectiveness, prosecutorial misconduct and an error in the trial court’s charge to the jury regarding reasonable doubt. The Commonwealth filed an answer and motion to dismiss the petition.
The undersigned, to whom the case had been reassigned, held a hearing and after consideration of the record, the petition, the Commonwealth’s response and the evidence presented at the hearing, denied the petition by Order dated November 4, 2014. [Appellant] filed a notice of appeal to the Superior Court and complied with this court’s directive to produce a Rule 1925(b) concise statement of errors.
PCRA Court Opinion (PCO), 1/27/15, at 1-3.
On appeal, Appellant presents three issues for our review:
a) Whether trial counsel was ineffective for failing to investigate and cross[-]examine the Commonwealth’s key witness, Andrew Bing[,] about his prior convictions?
b) Whether trial counsel was ineffective for failing to investigate and cross[-]examine Andrew Bing about his probationary status at the time of his testimony?
c) Whether trial counsel was ineffective for failing to investigate [Appellant’s] alibi defense?
Appellant’s Brief at 3.
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2 This Court concluded that Appellant’s initial PCRA counsel acted ineffectively by filing a deficient amended petition on Appellant’s behalf. Potter, No. 2789 EDA 2010 at 7. Consequently, we vacated the PCRA court’s order denying Appellant’s petition, and remanded for the appointment of new counsel and the filing of an amended PCRA petition on Appellant’s behalf. Id.
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Initially, we note that, “[t]his Court’s standard of review from the
grant or denial of post-conviction relief is limited to examining whether the
lower court’s determination is supported by the evidence of record and
whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d
516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352,
356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received
ineffective assistance of counsel, our Supreme Court has stated that:
[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the “[i]neffective 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.” Generally, counsel’s performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner. To obtain relief, a petitioner must demonstrate that counsel’s performance was deficient and that the deficiency prejudiced the petitioner. A petitioner establishes prejudice when he demonstrates “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” … [A] properly pled claim of ineffectiveness posits that: (1) the underlying legal issue has arguable merit; (2) counsel’s actions lacked an objective reasonable basis; and (3) actual prejudice befell the petitioner from counsel’s act or omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).3 ____________________________________________
3 Before delving into the merits of Appellant’s issues, we note that Appellant’s trial attorney, Mr. Frisk, testified at the PCRA hearing that he had a substance abuse problem at the time he represented Appellant at trial, and that his addiction subsequently led to a criminal conviction and a five-year (Footnote Continued Next Page)
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In his first issue, Appellant asserts that Mr. Frisk rendered ineffective
assistance when he failed to cross-examine Commonwealth witness Andrew
Bing about his prior convictions. Appellant explains that “[a]t the time of
Appellant’s trial, [] Bing had a prior record that included four (4) Felony
convictions for selling drugs and conspiracy to sell drugs; a felony theft
conviction; a conviction for Hindering Apprehension[; and a conviction for]
False Swearing.” Appellant’s Brief at 14. Appellant argues that Mr. Frisk did
not adequately investigate Bing’s prior record and impeach him with these
prior convictions, which was unreasonable and prejudicial because Bing “was
the lynchpin of the prosecution’s case[,] as he was the only witness that
connected Appellant to the crime.” Id.
Before addressing Appellant’s argument, we begin by noting that
Appellant’s claim that Mr. Frisk acted ineffectively by not investigating
and/or cross-examining Bing regarding his prior ‘drug, conspiracy, and theft’
convictions was not raised in Appellant’s PCRA petition. Accordingly, it is
waived. See Amended PCRA Petition, 9/17/13, at 2, 8-9; Pa.R.A.P. 302(a) _______________________ (Footnote Continued)
disbarment from the practice of law. See N.T. PCRA Hearing, 8/14/14, at 4- 6. In his brief to this Court, Appellant states that Mr. Frisk’s substance abuse problem “impacted his representation of Appellant” and “led to a constitutionally deficient representation at trial.” Id. at 12. However, Appellant goes on to discuss counsel’s purported ineffectiveness without specific elaboration on how Mr. Fisk’s substance abuse issues affected his ability to represent Appellant. Appellant also does not cite any legal authority to support a conclusion that Mr. Frisk’s addiction to drugs at the time he represented Appellant, in and of itself, constitutes deficient representation.
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(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”); Commonwealth v. Roney, 79 A.3d 595, 611
(Pa. 2013) (concluding that the appellant waived his “issue by his failure to
have raised it before the PCRA court”).
Additionally, Appellant has also failed to preserve this specific
assertion in his Rule 1925(b) statement, in which he presented this issue as
follows:
b) Trial counsel rendered ineffective assistance of counsel by failing to impeach the Commonwealth’s key witness, Andrew Bing, with his prior convictions for False Swearing [and] Hindering Apprehension [or] Prosecution. At the PCRA hearing, trial counsel testified that he did not check for the witness’s prior record, and only learned about it through questioning the witness. He acknowledged that he relied on the witness to give his accurate criminal history, rather than research it himself, and that he had no strategic reason for doing that.
Rule 1925(b) Statement, 1/2/15, at 1-2 (citation to the record omitted;
emphasis added). Because Appellant only referred to Mr. Frisk’s failure to
investigate and cross-examine Bing regarding his prior convictions for false
swearing and hindering apprehension or prosecution, he has waived his
claim that Mr. Frisk acted ineffectively regarding Bing’s other convictions on
this basis, as well. See Commonwealth v. Hill, 16 A.3d 484, 494 (Pa.
2011) (“Our jurisprudence is clear and well-settled, and firmly establishes
that: Rule 1925(b) sets out a simple, bright-line rule, which obligates an
appellant to file and serve a Rule 1925(b) statement, when so ordered; any
issues not raised in a Rule 1925(b) statement will be deemed waived; the
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courts lack the authority to countenance deviations from the Rule’s terms;
the Rule’s provisions are not subject to ad hoc exceptions or selective
enforcement; [and] Rule 1925 violations may be raised by the appellate
court sua sponte….”).
In regard to Bing’s purported conviction for false swearing, the record
demonstrates that that charge was nolle prossed in December of 2004. See
PCO at 4 n.1 (citing N.T. PCRA Hearing, 8/14/14, at 88); see also
Appellant’s Brief, Exhibit “A” (summary of Bing’s prior criminal history).
Accordingly, Appellant has failed to prove that Mr. Frisk could have cross-
examined Bing about this prior charge, which did not result in a conviction,
and which was not outstanding or non-final at the time of Appellant’s trial.
See Pa.R.E. 609(a) (“For the purpose of attacking the credibility of any
witness, evidence that the witness has been convicted of a crime[] … must
be admitted if it involved dishonesty or false statement.”) (emphasis
added); see also Commonwealth v. Buksa, 655 A.2d 576, 580 (Pa.
Super. 1995) (“[W]henever a prosecution witness may be biased in favor of
the prosecution because of outstanding criminal charges or because of any
non-final criminal disposition against him within the same jurisdiction, that
possible bias, in fairness, must be made known to the jury.”).
Therefore, the only aspect of Appellant’s first issue that could entitle
him to relief is his allegation that Mr. Frisk acted ineffectively by not
investigating and/or cross-examining Bing about his prior conviction for
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hindering apprehension or prosecution. As Appellant acknowledges, Mr.
Frisk did ask Bing about his prior record, resulting in the following exchange:
[Mr. Frisk:] You have a prior record, don’t you, sir?
[Bing:] Yes, I do.
[Mr. Frisk:] What is that prior record?
[Bing:] Drugs and stolen auto, that’s it.
[Mr. Frisk:] Felonies?
[Bing:] Yes.
N.T. Trial, 4/8/08, at 63. Appellant contends that had Mr. Frisk properly
investigated Bing’s prior record, he could have impeached Bing’s testimony
by pointing out that Bing had also been convicted of hindering apprehension.
The PCRA rejected this claim for several reasons, including the
following:
The record from the trial indicates that [Mr.] Frisk cross- examined Bing about his prior crimen falsi conviction for stealing a car (N.T. 4/8/08, p. 63)…. The judge also noted Bing’s prior crimen falsi conviction during his closing instructions to the jury, and gave the jury a “corrupt and polluted source” instruction in connection with Bing’s testimony. (N.T.[] 4/9/08, pp. 89-91) While [Mr.] Frisk did not cross-examine Bing regarding a prior conviction for hindering apprehension…, the jury was made aware that Bing had a prior conviction involving an offense of dishonesty…. Thus, [Mr. Frisk] cannot be deemed ineffective for failing to pursue cumulative evidence.
PCO at 5-6.
The record supports the PCRA court’s determination that evidence of
Bing’s prior conviction for hindering apprehension or prosecution would have
been merely cumulative of the evidence that he was convicted of a crimen
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falsi theft offense. Accordingly, Appellant has not demonstrated that he was
prejudiced by Mr. Frisk’s failure to cross-examine Bing with this additional
conviction.4
Next, Appellant argues that Mr. Frisk’s representation was deficient
because he did not cross-examine Bing about the fact that Bing “was on
active probation during the commission of the crime on June 12, 2006, and
when he testified against Appellant.” Appellant’s Brief at 19. In support,
Appellant relies on our Supreme Court’s decision in Commonwealth v.
Murphy, 591 A.2d 278 (Pa. 1991), where the Court concluded that trial
counsel acted ineffectively by not cross-examining a key Commonwealth
witness, Wanda Wilson, regarding her juvenile probationary status at the
4 We also agree with the PCRA court that Appellant failed to prove that Bing’s hindering apprehension or prosecution offense was admissible as a crimen falsi conviction. See PCO at 6. In Commonwealth v. Harris, 658 A.2d 811 (Pa. Super. 1995), this Court held that hindering apprehension or prosecution, as defined in 18 Pa.C.S. § 5105(a)(4), is not necessarily a crimen falsi offense, unless the underlying facts of the conviction demonstrate that the defendant acted dishonestly or made false statements. Id. at 813-814; see also 18 Pa.C.S. § 5105(a)(4) (stating a person commits the offense of hindering apprehension or prosecution if they warn another “of impending discovery or apprehension”). However, Harris did indicate that a conviction for hindering apprehension or prosecution under subparagraphs (1)-(3) and (5) of section 5105(a) would qualify as crimen falsi offenses because they involve “some form of concealment, disguise, or providing the authorities with false information….” Id. at 813-814 (internal quotation marks omitted). Nevertheless, nothing in the record establishes under which subpart of section 5105(a) Bing was convicted. Consequently, Appellant has not proven that Bing’s prior conviction for hindering apprehension or prosecution was a crimen falsi offense that Mr. Frisk could have used to impeach Bing.
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time of Murphy’s trial. Id. at 280. Namely, in finding that Murphy was
prejudiced by counsel’s failure, our Supreme Court stated:
[Murphy] was clearly prejudiced by counsel's performance. Wilson was the only eyewitness to the crime and her testimony was crucial to the Commonwealth's case. Although the murder of [the victim] occurred in 1981, it was only after Wilson was re- interviewed and gave additional information to the police in 1985 that the Commonwealth was able to bring charges against [Murphy]. It was incumbent upon defense counsel to bring to the jury’s attention the possibility that [the witness] had a motive for testifying against [Murphy], whether based upon a formal agreement with the prosecution or a subjective belief that she would receive favorable treatment with regard to her juvenile probation. If defense counsel was able to show that [the witness] was biased, it would have, in all probability, affected the outcome of the proceeding.
Id. (footnote omitted). Relying on Murphy, Appellant maintains that Mr.
Frisk’s failure to cross-examine Bing regarding his probationary status
prejudiced Appellant.
While we accept that under Murphy, Appellant’s claim of
ineffectiveness has arguable merit, the record convinces us that Appellant
was not prejudiced by Mr. Frisk’s failure to cross-examine Bing about his
probationary status. Unlike in Murphy, the jury in this case was made
aware of the possibility that Bing had a motive for testifying against
Appellant, albeit for reasons other than a hope for favorable treatment in
Bing’s probation case. Specifically, during Bing’s direct examination, the
Commonwealth asked him if he understood that (1) by testifying against
Appellant, he was incriminating himself for various offenses, including
robbery, burglary, aggravated assault, and conspiracy to commit each of
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these offenses; and (2) each of those felony offenses carried a potential
sentence of 20 years’ incarceration. N.T. Trial, 4/8/08, at 61-62. Bing
indicated that he understood these facts. Id. at 62. He was then asked if
“any promises [had] been made to [him] in exchange for [his] testimony,”
to which Bing replied, “No.” Id. at 62.
Immediately after that question and answer, Mr. Frisk began his cross-
examination of Bing, as follows:
[Mr. Frisk:] Sir, you don’t recall a conversation you had with [the prosecutor] at a preliminary hearing where he told you the more you give us, the more we’ll give you? Sitting in the room, next to – preparing to go into the preliminary hearing, [the prosecutor] here said, the more you give us, the more we’ll give you.
…
Is that correct?
[Mr. Frisk:] So there were no promises made. Sounds like [the prosecutor] has told you he will make promises; isn’t that true?
[Bing:] No. He didn’t make no promises, though.
Id. at 62-63.
Mr. Frisk also emphasized that, due to Bing’s prior record, he could
“serve the rest of [his] natural life in jail” if he were convicted of the crimes
listed by the Commonwealth. Id. at 64-65. Mr. Frisk then asked Bing, “And
the District Attorney has promised you leniency in your case for this
[testimony], correct?” Id. at 65. When Bing replied, “No, he hasn’t[,]”
Attorney Frisk stated: “You just told us [that the prosecutor] told you … the
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more you do for me, the more I’ll do for you. What does that mean to you?”
Id. Bing then reiterated that no promises were made to him in exchange for
testifying. Id.
In light of this record, the PCRA court concluded that Mr. Frisk
adequately “cross-examined Bing about … the potential that Bing may have
expected leniency in his own case related to the incident in return for
testifying.” PCO at 5. The court noted that “[w]hile [Mr.] Frisk did not
cross-examine Bing regarding … his probationary status at the time of trial,
the jury was made aware … [of Bing’s] potential Bias.” Id. at 4-5.
Ultimately, the PCRA court concluded that the evidence of Bing’s
probationary status would have been cumulative. We agree. Based on Mr.
Frisk’s impeaching Bing, and emphasizing Bing’s possible bias and
motivation for testifying against Appellant, we conclude that Appellant was
not prejudiced by Mr. Frisk’s failure to present cumulative evidence of Bing’s
probationary status.
Finally, Appellant contends that Mr. Frisk acted ineffectively by failing
to investigate Appellant’s alibi defense. Initially, we agree with the
Commonwealth that Appellant does not present a clear argument regarding
what his alibi actually was. For instance, in his amended PCRA petition,
Appellant stated that he “has consistently claimed that he was at the
Philadelphia Sporting Club in Philadelphia at the time the crime was
committed.” Amended PCRA Petition, 9/17/13, at 11. Appellant further
argued that, had Mr. Frisk investigated this alibi, he could have obtained
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evidence that Appellant “checked in [to the Sporting Club] that morning and
played basketball with other members at the club.” Id. at 13. Appellant
contended that “[i]t is unimaginable that trial counsel never contacted the
club to ascertain whether [Appellant] entered the facility on the date in
question, and he never sought to interview any club members … who would
have been able to confirm [Appellant’s] presence at the club that day.” Id.
At the PCRA hearing, Appellant continued to maintain that his alibi
defense was premised on his being at the Sporting Club in Philadelphia at
the time of the crimes. In this regard, his PCRA counsel questioned Mr. Frisk
as follows:
[Appellant’s Counsel:] Did you take any steps at all to investigate whether or not [Appellant] was actually at the Philadelphia Sporting Club at the time of this crime?
[Mr. Frisk:] No.
[Appellant’s Counsel:] Did you go and ask for any video evidence from the Sporting Club or did you actually go to the Sporting Club or did you check and see whether he was a member there or interview any witnesses that might have been there at the time in any way?
[Appellant’s Counsel:] But you were aware from [Appellant] that he maintained that he was there during this trial and before the trial?
[Mr. Frisk:] Yes.
[Appellant’s Counsel:] Did you have any strategic reason for not taking those steps to investigate any potential alibi?
[Mr. Frisk:] No, sir.
PCRA Hearing, 8/14/14, at 22.
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To refute Appellant’s claim that he was at the Sporting Club at the
time of the robbery, the Commonwealth presented at the PCRA hearing the
testimony of Laura Bruce, an employee of the club. Ms. Bruce testified that
in 2006, members of the Sporting Club were required to check-in and
present a membership card before entering. Id. at 45-46. The
Commonwealth admitted into evidence, and presented to Ms. Bruce, a
document that Ms. Bruce identified as a “visit listing,” which demonstrated
that Appellant checked into the Sporting Club at 10:59 a.m. on June 12,
2006, well after the early morning robbery at the Heveners’ residence. Id.
at 46-49.
Now, on appeal, Appellant seemingly abandons his alibi defense that
he was at the Sporting Club in Philadelphia, instead averring that Mr. Frisk
was ineffective for not investigating whether Appellant was in Atlantic City,
New Jersey, the night before (and, presumably, the morning of) the robbery.
See N.T. Trial, 4/9/08, at 23-24. It seems that this was the alibi asserted
by Appellant during his trial testimony, wherein he stated that on the night
of June 11, 2006, he went to Atlantic City, New Jersey, and did not return to
the Philadelphia area until “around 5:00 o’clock in the morning….” N.T.
Trial, 4/9/08, at 23-24. Appellant further claimed that he “was going to the
gym to play basketball at six.” Id. at 24. On cross-examination, the
Commonwealth questioned Appellant as follows:
[The Commonwealth:] Can anybody verify that you were in Atlantic City the night before?
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[Appellant:] Yeah. Actually, I could probably get documentation from the casinos that I was at. Only because whenever you’re a medium to high roller, as they call it, … you check-in with a card. That keeps track of how much money you spent, average bet. Anyone that goes to the casinos knows that.
[The Commonwealth:] Do you have it?
[Appellant:] Didn’t know I would need that. Again, I can provide that for you if you need it.
Id. at 43. Appellant now maintains that “[i]f the documentation that []
[A]ppellant referred to existed, then it is without question that Appellant was
prejudiced by counsel’s failure to investigate and obtain those records.”
Appellant’s Brief at 26.
Appellant’s argument is insufficient to demonstrate that Mr. Frisk’s
purported failure to investigate either of his alibi defenses prejudiced
Appellant. Ms. Bruce’s testimony at the PCRA hearing refuted Appellant’s
claim that he was at the Sporting Club in Philadelphia at the time the
Heveners were robbed. Thus, Appellant has not established that an
investigation by Mr. Frisk into this alibi would have aided Appellant’s
defense, let alone changed the outcome of his trial. Likewise, Appellant
presented no evidence to the PCRA court to support his alibi that he was in
Atlantic City at the time of the crime. Therefore, he has not established that
Mr. Frisk’s investigation of this alibi would have resulted in a different
verdict.5 ____________________________________________
5 We note that Appellant also argues herein that Mr. Frisk was ineffective for not investigating Appellant’s alibi because, had counsel done so and discovered that it “could not [be] verified, [Mr. Frisk] may have counseled (Footnote Continued Next Page)
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In sum, we conclude that none of Appellant’s claims of Attorney Frisk’s
ineffectiveness warrants relief. Therefore, the PCRA court did not err in
denying his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/5/2015
_______________________ (Footnote Continued)
Appellant that testifying about an alibi without proof may not have been in his best interest, especially in light of the fact that the Commonwealth’s case was flimsy.” Appellant’s Brief at 27. This argument was not raised in Appellant’s PCRA petition. Therefore, it is waived. See Pa.R.A.P. 302(a); Roney, 79 A.3d at 611.
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