Com. v. Thompson, J.

• Court: Superior Court of Pennsylvania
• Decided: June 6, 2023
• Docket: 441 WDA 2022
• Status: Unpublished

Opinion

J-S05038-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUMAR THOMPSON : : Appellant : No. 441 WDA 2022

Appeal from the PCRA Order Entered March 22, 2022 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0001068-2015

BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: June 6, 2023

Jumar Thompson appeals the order granting in part and denying in part

his Post Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-

9546. He claims that he raised meritorious claims of ineffective assistance of

counsel. We affirm.

We restate the facts as aptly summarized by the trial court.

John Corso testified that as of May 10, 2015 he owned several vehicles and it was his practice to rent his extra vehicles. In the morning hours of May 10th he received a telephone call from an individual named “Chris” advising that another individual desired to rent a vehicle. Mr. Corso went to a park in New Brighton where he met with a man he knew as “Tone”, whom Mr. Corso had previously met but did not know well. At [t]rial, Mr. Corso identified “Tone” as [Thompson]. Mr. Corso rented a 1995 Buick LaSabre to [Thompson] for the day for $100. [Thompson] advised that he had had an altercation with his girlfriend and needed the vehicle to move his personal belongings to Pittsburgh. [Thompson] placed a substantial amount (“a good bit”) of personal items in various bags into the vehicle. J-S05038-23

At approximately 8:00 P.M. Mr. Corso received a call from [Thompson] and they made arrangements to meet at a gas station for [Thompson] to return the vehicle. Mr. Corso arrived at the gas station and within a few minutes [Thompson] arrived. [Thompson] exited the gas station with Mr. Corso behind him and another vehicle between them. Mr. Corso observed that the vehicle between him and [Thompson] was an unmarked police car, which initiated a traffic stop of [Thompson’s] vehicle soon after it had left the gas station.

Mr. Corso denied that the vehicle contained a firearm or synthetic marijuana when he rented it to [Thompson]; prior to renting his vehicles it was his practice to completely empty and clean the vehicle.

Sergeant Ronald Walton is employed by the New Brighton Police Department. He has 21 years of experience in law enforcement and has handled hundreds of drug investigations and arrests in his career. Sgt. [Ronald] Walton testified as follows:

On the evening of May 10, 2015 he was on routine patrol traveling on Fifth Avenue in New Brighton. He observed a vehicle traveling towards him drift into his lane of travel; Sgt. Walton continued to watch the vehicle in his rearview mirror and observed the subject vehicle stop at a stop sign for an abnormally long period of time. He then observed the vehicle approach and swerve to avoid a parked vehicle. Sgt. Walton turned his vehicle around and observed the vehicle pass through a gas station parking lot, appearing to “cut the corner, so to speak, to avoid the stop sign.” At that time Sgt. Walton initiated a traffic stop.

Sgt. Walton first ran the (Ohio) license plate, which indicated the vehicle was registered to John Corso. Upon approaching the vehicle, he observed that the driver, [Thompson], was sweating profusely. [Thompson] was unable to provide the vehicle’s registration or proof of insurance and advised Sgt. Walton that he had rented the vehicle from a man named “Billy”. Sgt. Walton observed roaches or blunts on the center console ashtray; he also observed “shake”, or loose vegetable matter, on the seats, console, floor, and throughout the vehicle; he also observed flavored cigar packages on the passenger seat and a cup in

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the center console which contained tobacco, presumably from the emptied cigars. In Sgt. Walton’s experience all of these observations are consistent with the use of marijuana or other controlled substances.

Sgt. Walton removed [Thompson] from the vehicle and retrieved one of the blunts for examination. The substance inside of the blunt had the appearance of marijuana but did not have the odor. Sgt. Walton observed a duffle bag on the passenger floor of the vehicle; the duffle bag was partially unzipped and he observed a large (two-gallon) Ziploc bag inside the duffle bag. Inside the Ziploc bag were 61 individually sealed packages of synthetic marijuana labeled “Cheap Trick” or “Black Voodoo”. After removing the Ziploc bag from the duffle bag, Sgt. Walton observed a handgun in the duffle bag. The handgun was loaded and Sgt. Walton later tested the handgun and determined that it functioned properly. . . .

. . . The vehicle was impounded and searched and a debit card in [Thompson’s] name was found in the glove compartment. Sgt. Walton later learned from other law enforcement officers that [Thompson] uses the nickname “Tone”.

Opinion & Final Order, filed 3/22/22, at 3-5 (footnotes and citations omitted)

(citing Memorandum Opinion and Order, 6/16/16).

Following trial, the jury convicted Thompson of multiple crimes including

firearms not to be carried without a license and possession with intent to

deliver a controlled substance. The court sentenced Thompson to an

aggregate term of 42 to 84 months’ incarceration. Thompson filed a post-

sentence motion arguing that “[t]he Commonwealth did not present sufficient

evidence to prove beyond a reasonable doubt all of the elements of the

offenses for which he was convicted.” Post Trial Mot., filed 4/26/16, at ¶ 3(a).

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Thompson filed a direct appeal, raising issues of sufficiency and weight

of the evidence as well as a challenge to the discretionary aspects of his

sentence. Regarding the issue of sufficiency, we found the claim meritless

based on the trial court opinion which concluded that the Commonwealth

presented sufficient evidence of Thompson’s constructive possession of the

duffel bag and its contents. See Commonwealth v. Thompson, 2017 WL

729751 at *3 (Pa.Super. filed Feb. 24, 2017) (unpublished memorandum).

We affirmed the judgment of sentence and Thompson did not seek further

appellate review.

Thompson filed the instant timely PCRA petition in February 2018. The

court appointed counsel and following the withdrawal of counsel and

appointment of new counsel, Thompson filed an amended PCRA petition. In

the petition, he raised claims of ineffective assistance of counsel. The court

granted Thompson’s petition on the sole claim that trial counsel was ineffective

for failing to appeal the court’s denial of his suppression motion. It determined

that Thompson suffered no prejudice regarding the remaining claims and

denied them as meritless. The order denying in part and granting in part the

PCRA petition read: “Trial Counsel was determined to be ineffective for failing

to appeal the Suppression Court’s ruling (Petitioner’s claim D), and the

Petitioner’s direct appeal rights are reinstated as regards this single

issue.” Final Order, filed 3/21/22 (emphasis added). This timely appeal

followed.

Thompson raises the following claims:

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I. Whether the seizure of drugs and a firearm from the inside of a closed duffel bag found inside of a motor vehicle operated by [Thompson] was legal in that police lacked probable cause to force a stop of said motor vehicle and thereafter lacked probable cause to search the interior of the motor vehicle and seize the duffel bag and thereafter lacked probable cause to search inside the duffel bag[.]

II. Whether prior legal counsel provided ineffective assistance of counsel in failing to adequately preserve, raise, brief and argue post-sentence motion and on direct appeal the sufficiency of the evidence that [Thompson] constructively possessed the firearm and drugs found in the duffel bag in the Buick[.]

III. Whether prior legal counsel was ineffective in failing to secure expert testing of the firearm seized from the duffel bag for fingerprint and DNA evidence[.]

IV. Whether prior legal counsel provided ineffective assistance of counsel in failing to obtain and use at trial the complete prior criminal history of Corso, the owner of the Buick, through pre-trial discovery and/or his own investigation, specifically, his pending criminal charges and a pending summary case[.]

V. Whether prior legal counsel provided ineffective assistance of counsel in failing to cross-examine Corso and Walton about the cocaine found in the Buick which would have further undermined Corso’s credibility[.]

VI. Whether prior legal counsel provided ineffective assistance of counsel in failing to move into evidence Corso’s written statement and failing to then have it sent out with the jury during deliberation.

VII. Prior legal counsel provided ineffective assistance of counsel in laboring under an actual conflict of interest due to the office of the Beaver County Public Defender simultaneously representing Corso and [Thompson].

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Thompson’s Br. at 4-5 (answers omitted) (issues renumbered for ease of

disposition.

Thompson’s first issue addresses the trial court’s denial of his

suppression motion. Thompson notes that the PCRA court reinstated his direct

appeal rights as to the sole claim of counsel’s ineffectiveness regarding the

motion to suppress and failing to appeal the denial. See id. at 22 n.11. He

states that he addresses this claim before this Court “as if on direct appeal.”

Id.

We do not address this issue as it is not properly before this Court.

Thompson appealed the order of the PCRA court, as it denied PCRA relief in

part. However, he did not pursue the relief granted by the PCRA court, by

filing a direct appeal from his judgment of sentence raising a challenge to the

denial of the suppression motion. See Commonwealth v. Pratt, 930 A.2d

561, 562 n.1 (Pa.Super. 2007) (appeal of motion to suppress properly lies

from judgment of sentence). Therefore, the only appeal before us is the appeal

from the PCRA court’s order denying Thompson’s PCRA petition in part.

We now address Thompson’s remaining issues which go to the denial of

his PCRA petition. “Our standard of review of the denial of a PCRA petition is

limited to examining whether the evidence of record supports the court’s

determination and whether its decision is free of legal error.” Commonwealth

v. Beatty, 207 A.3d 957, 960-61 (Pa.Super. 2019).

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Thompson claims that counsel was ineffective for failing to “adequately

research and brief” a challenge to the sufficiency of the evidence for his

constructive possession of the duffel bag and its contents in the post-sentence

motion and appellate brief. Thompson’s Br. at 45. He maintains that counsel

drafted a post-sentence motion and appellate brief that contained “mere

boilerplate argument.” Id. at 50. He posits that the facts presented at trial did

not support a showing that he “exercised conscious dominion” of the contents

of the duffel bag or that he knew of the contents of the bag. See id. at 48-

49. Thompson argues that because of counsel’s “deficient pleadings,” counsel

prevented him from “obtaining a merit review of the issue.” Id. at 50.

Counsel is presumed effective. See Commonwealth v. Mason, 130

A.3d 601, 618 (Pa. 2015). To overcome this presumption, the petitioner must

plead and prove the following: “(1) the legal claim underlying the

ineffectiveness claim has arguable merit; (2) counsel’s action or inaction

lacked any reasonable basis designed to effectuate petitioner’s interest; and

(3) counsel’s action or inaction resulted in prejudice to petitioner.” Id.

Prejudice exists where “absent counsel’s conduct, there is a reasonable

probability the outcome of the proceedings would have been different.”

Commonwealth v. Miner, 44 A.3d 684, 687 (Pa.Super. 2012). The

petitioner must satisfy each prong or the claim must fail. See

Commonwealth v. Basemore, 744 A.2d 717, 738 n.23 (Pa. 2000).

Here, trial counsel filed a post-sentence motion raising amongst other

issues, a challenge to the sufficiency of the evidence. The post-sentence

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motion did not specify whether counsel was specifically challenging the

sufficiency of the evidence for constructive possession. The same is true of

Thompson’s brief on direct appeal. Nonetheless, we conclude that the PCRA

court did not err in rejecting this claim of ineffectiveness.

“Where a defendant is not in actual possession of the prohibited items,

the Commonwealth must establish that the defendant had constructive

possession to support the conviction.” Commonwealth v. Parrish, 191 A.3d

31, 36 (Pa.Super. 2018). Constructive possession exists where the defendant

has “the power to control the contraband and the intent to exercise that

control.” Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013)

(citation omitted). The Commonwealth may prove constructive possession “by

the totality of the circumstances” and through circumstantial evidence. Id.;

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa.Super. 1996). The

defendant’s presence near or at the place where police find the contraband,

alone, is not sufficient. See Commonwealth v. Valette, 613 A.2d 548, 551

(Pa. 1992). The Commonwealth must also prove the defendant’s intent to

control the contraband by showing the defendant’s knowledge of the existence

and location of the contraband. Parrish, 191 A.3d at 37.

When considering a challenge to the sufficiency of the evidence, a court

must determine “whether viewing all the evidence admitted at trial in the light

most favorable to the verdict winner, there is sufficient evidence to enable the

fact-finder to find every element of the crime beyond a reasonable doubt.”

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Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa.Super. 2014) (citation

omitted).

Here, the evidence established that Thompson rented a vehicle from

Corso and that the vehicle was empty prior to it being in his possession.

Thompson was the sole occupant of the vehicle at the time Sergeant Walton

conducted a traffic stop of the vehicle. Thompson was driving the vehicle and

the duffle bag was located on the floor of the front passenger seat. Sergeant

Walton also testified that the bag was partially unzipped. N.T., Trial, 3/16/16,

at 119.1 Considering the standard for a challenge to the sufficiency of the

evidence, the Commonwealth provided sufficient evidence of Thompson’s

constructive possession of the duffle bag. As the sole occupant of the vehicle,

Thompson had the power to control the duffle bag and the intent to control

that bag. Additionally, though Thompson claims that he did not know the bag

was in the car, the bag was in plain view. Therefore, even if appellate counsel

had presented a more robust argument in the post-sentence motion, a claim

challenging constructive possession would have been meritless. Furthermore,

counsel did not prevent Thompson from a merit review of the issue. As stated

above, this Court rejected Thompson’s claim of sufficiency and concluded that

the court correctly determined that the Commonwealth had sufficiently shown

Thompson’s constructive possession of the bag and the firearm in the bag.

Thus, counsel cannot be ineffective for failing to raise this meritless claim. See ____________________________________________

1 Throughout his brief, Thompson claims that the duffle bag was closed. This is an inaccurate representation of the evidence presented at trial.

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Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012) (“Counsel cannot be

deemed ineffective for failing to raise a meritless claim”).

Next, Thompson argues that counsel was ineffective for failing to order

forensic testing of the gun recovered from the duffle bag. Thompson maintains

that he “repeatedly requested prior legal counsel to secure fingerprint and

DNA analysis of the firearm[.]” Thompson’s Br. at 51. He alleges that counsel

“misled [Thompson] (and possibly himself) into believing that the

Commonwealth was in the process of securing said analysis[.]” Id. at 52.

Without this evidence, Thompson maintains that he was not able to present

rebuttable evidence.

A PCRA petitioner claiming ineffectiveness for failure to acquire or

present evidence must demonstrate how the missing evidence would have

changed the outcome of the case, in order to show prejudice. See

Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012);

Commonwealth v. Zepprinans, No. 1815 EDA 2020, 2022 WL 102632, at

*5 (Pa.Super. filed Jan. 11, 2022) (unpublished mem.). Thompson has failed

to show prejudice here because he has not shown that the forensic

examination of the firearm would have been helpful to the defense.

Here, Thompson claims that counsel’s failure to request forensic DNA

testing on the firearm prejudiced him because it “could have proven

[Thompson’s] innocence.” Thompson’s Br. at 53 (emphasis added). This is

speculative. Without a forensic analysis of the firearm, Thompson failed to

show that but for counsel’s inaction, the outcome of his case would have been

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different. See 42 Pa.C.S.A. § 9543.1(a) (providing for postconviction DNA

testing upon a motion explaining there is a reasonable probability the testing

would provide exculpatory evidence that would establish the applicant’s actual

innocence). Though Thompson claims that the testing could have proven his

innocence, it is just as likely that the testing could have proven his guilt.

Furthermore, even if there was a lack of forensic DNA evidence connecting

Thompson to the gun, the evidence at trial established his constructive

possession of the firearm. Thompson was the sole occupant of the vehicle and

officers recovered the firearm from a duffle bag on the floor directly across

from him. The PCRA court did not err in rejecting this claim.

Thompson’s next three issues challenge counsel’s effectiveness

regarding Corso, a witness for the Commonwealth. Thompson maintains that

Corso had a prior theft conviction, two pending criminal cases in Beaver

County, and one pending criminal case in Allegheny County. He states that

the three pending cases “established that Corso was biased and had a motive

to testify falsely, i.e., to avoid conviction and the associated potential penalties

for each of those three cases.” Thompson’s Br. at 32. He argues that counsel’s

actions prejudiced him because if counsel had admitted “the admissible

impeachment evidence against Corso, [it] would have presented a reasonable

alternative to the Commonwealth’s argument that the duffel bag was

[Thompson’s], since he was the sole occupant at the time of the forced stop.”

Id. at 33. He states that this is true considering his testimony that he rented

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the vehicle from someone named Billy. Thus, it is possible that he could have

rented the vehicle without knowing the bag was in the vehicle.

The PCRA court rejected all of Thompson’s claims regarding counsel’s

treatment of Corso at trial, finding that Thompson had failed to establish

prejudice. The court stated that no amount of evidence or questions directed

to expose Corso’s potential bias and attack his credibility “would have served

to overcome the overwhelming evidence in this case.” Opinion & Final Order

at 9. This was not error.

Here, even if counsel had addressed Corso about his three open cases,

Thompson has failed to prove prejudice, considering the overwhelming

evidence of Thompson’s guilt. As the PCRA court explained, the evidence

showed that when Sergeant Walton initiated a traffic stop of Thompson’s car,

Thompson was the sole occupant, and “the drugs and firearm were found in a

partially open duffle bag that was in arms reach of [Thompson], in plain view

on the floor of the front passenger-seat.” Opinion & Final Order at 7.

Furthermore, counsel cross-examined Corso regarding his crimen falsi

conviction, and the court instructed the jury that it could use the prior

conviction “in deciding whether or not to believe all or part of Mr. Corso’s

testimony.” See N.T. at 83, 88-89; 264; see also 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, whether by verdict or by plea of guilty or nolo

contendere, must be admitted if it involved dishonesty or false statement”).

Accordingly, this claim must fail.

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Thompson also claims that counsel was ineffective for failing to ask

Corso about police suspecting him of being the owner of a packet of cocaine

that officers recovered from the backseat of the vehicle. He states that at the

preliminary hearing, Sergeant Walton testified that police suspected that

Corso, and not Thompson, possessed the cocaine in the car. See Thompson’s

Br. at 35. He maintains that had counsel elicited this information at trial it

“would have provided the jury with something else to use in deciding Corso’s

veracity.” Id. Thompson maintains that he has established prejudice

considering his testimony at trial that he rented the vehicle from someone

other than Corso.

As with his previous claim, Thompson has again failed to establish

prejudice. Evening considering that police initially suspected that the cocaine

in the car belonged to Corso, there was an overwhelming amount of evidence

against Thompson. Therefore, Thompson failed to show that but for counsel’s

actions, the outcome of the case would have been different.

Thompson also argues that counsel failed to impeach Corso with his

statement to police. He claims that while counsel addressed some areas of the

statement, he failed to address inconsistencies within the statement such as:

1) that a man named Chris told Corso that his “unnamed friend” needed the

car because of some issues with his girlfriend; 2) that Corso never identified

the man he met in the park by name; 3) that Chris never gave the name of

his friend that needed the vehicle; and 4) that Corso didn’t know the person

he met with in the park. See id. at 42. Thompson maintains that if counsel

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had challenged Corso with these inconsistencies, it would have been the basis

to introduce his statement as a prior inconsistent statement and admitted as

evidence for the jury to review. He notes that counsel told the court “that he

never intended to submit it as an exhibit nor was he going to ask that it [be]

sent out with the jury[.]” Id. at 43. Thompson also states that counsel’s

actions prejudiced him because counsel did not give the jury an “alternative

to the Commonwealth’s argument that the duffel bag was [Thompson’s].” Id.

at 44. He also argues “that there is a reasonable probability that if the jury

possessed Corso’s written prior inconsistent statement,” along with the bag of

the cocaine in the car, Corso’s theft conviction, and his three open cases, it

might have disbelieved Corso’s testimony and instead chosen to believe his

testimony. Id. at 45.

Here, Thompson failed to show prejudice. Though he claims that

counsel’s cross-examination was inadequate, counsel confronted Corso with

the inconsistencies between his statement and his trial testimony. Counsel

asked Corso about the individual named Chris who initially contacted him and

questioned Corso about his theft conviction. Counsel also challenged Corso on

parts of his testimony that he did not mention to the police and confronted

him about his failure to indicate in his statement that he knew the individual

who wanted to rent the vehicle. N.T. at 78, 83, 88, 89. Counsel’s cross-

examination thoroughly attacked the credibility of Corso’s testimony. Thus,

Thompon has not shown that but for counsel’s actions, the outcome of the

trial would have been different. This claim fails.

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In his final claim, Thompson argues that trial counsel had a conflict of

interest. He maintains that the Public Defender’s office, which represented

Thompson at trial, also represented Corso in a then-pending theft case in the

same county as his trial. He argues that this created an actual conflict of

interest for the Public Defender’s office. He states that he and Corso had

“extremely different antagonistic interests in the same instant case.”

Thompson’s Br. at 39. He also notes that the record is incomplete as to why

trial counsel did not obtain and use the open cases against Corso at trial,

“including any plea agreement or negotiations” that Corso may have made in

exchange for his testimony. Id. at 40.

To prevail on a claim that counsel had a conflict of interest, the petitioner

must prove an actual conflict. See Commonwealth v. Sepulveda, 55 A.3d

1108, 1147 (Pa. 2012). An actual conflict exists where the petitioner shows

that: “(1) counsel ‘actively represented conflicting interests’; and (2) those

conflicting interests ‘adversely affected his lawyer’s performance.’”

Commonwealth v. Collins, 957 A.2d 237, 251 (Pa. 2008) (citation omitted).

“Clients’ interests actually conflict when ‘during the course of representation’

they ‘diverge with respect to a material fact or legal issue or to a course of

action.’” Sepulveda, 55 A.3d at 1147 (quoting Collins, 957 A.2d at 251).

Furthermore, we presume prejudice when the petitioner shows an actual

conflict. See Commonwealth v. Tharp, 101 A.3d 736, 754 (Pa. 2014).

“Representation by one member of a public defender’s office applies to

all members of the office.” Id. at 753 n.14 (citing Commonwealth v.

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Westbrook, 400 A.2d 160, 162 (Pa. 1979)). However, where the Public

Defender’s Office previously represented a person but no longer represents

them at the time of another client’s trial, no actual conflict exists. See

Commonwealth v. Tedford, 960 A.2d 1, 54 (Pa. 2008).

Here, Thompson has failed to show an actual conflict of interest. He has

not demonstrated the counsel actively represented conflicting interests and

the conflict adversely affected counsel’s performance. He failed to show that

during the course of representation, his interests and Corso’s interests

diverged with respect to a material fact or legal issue or to a course of action.

While Corso allegedly had open cases in the same county as the instant case,

that is insufficient standing alone to show a divergence of interests. Thompson

does not allege for example that any of these cases resulted in Corso becoming

a codefendant in the instant case, or explain a way in which the pendency of

the charges affected counsel’s treatment of Corso in this case. See

Commonwealth v. Evans, 451 A.2d 1373, 1375-77 (Pa. 1982) (holding that

conflict of interest existed for Beaver County Public Defender’s office where it

represented Evans and negotiated a guilty plea the day before trial for a co-

defendant who testified against Evans at trial). Having failed to show that an

actual conflict existed, Thompson’s claim fails.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/6/2023

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