Com. v. Thompson, S.

• Court: Superior Court of Pennsylvania
• Decided: August 28, 2018
• Docket: 1680 MDA 2017
• Status: Unpublished

Opinion

J-S42025-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAVAR L. THOMPSON : : Appellant : No. 1680 MDA 2017

Appeal from the PCRA Order September 22, 2017 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0003090-2013

BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 28, 2018

Shavar L. Thompson appeals from the order entered on September 22,

2017, which denied his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

We adopt the following statement of facts and procedural history from

the PCRA court’s memorandum. See PCRA Ct. Memo., 08/29/2017, at 1-3.1

In spring 2013, police in Harrisburg learned from a confidential informant (CI)

that Thompson was engaged in the sale of narcotics. Thereafter, while under

police surveillance, the CI conducted two controlled buys of cocaine from

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* Retired Senior Judge assigned to the Superior Court.

1The certified record mislabels this memorandum as an order filed August 29, 2017. The court filed its order dismissing Thompson’s petition on September 22, 2017. J-S42025-18

Thompson. On a third occasion, an undercover police officer purchased

cocaine from Thompson. Following this third incident, police arrested him.

Although appointed counsel, Thompson elected to proceed pro se until

reinstating appointed counsel just prior to trial. Following trial, a jury

convicted Thompson of three counts of delivery of a controlled substance but

acquitted him of a fourth count alleging possession with intent to deliver.2

In March 2014, the court sentenced Thompson to 45 to 108 months of

incarceration. Thompson timely filed post-sentence motions, which were

denied, and he then appealed. This Court affirmed his judgment of sentence,

and the Supreme Court denied his petition for allowance of appeal.

Commonwealth v. Thompson, 120 A.3d 378 (Pa.Super. 2015)

(unpublished memorandum), appeal denied, 125 A.3d 1201 (Pa. 2015).

In September 2016, Thompson timely and pro se filed a petition seeking

collateral relief, asserting myriad issues. PCRA counsel was appointed. In

July 2017, following several extensions granted by the PCRA court, counsel

filed a petition to withdraw and a Turner/Finley letter analyzing Thompson’s

claims and concluding they were without merit.3 The court granted counsel’s

petition to withdraw; Thompson timely responded to counsel’s letter; and

thereafter, the PCRA court dismissed Thompson’s petition.

2 See 35 P.S. § 780-113(a)(30).

3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).

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Thompson timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. The PCRA court issued a

responsive statement in which it directed our attention to its previous

memorandum addressing Thompson’s petition.

Thompson raises the following issues, reorganized and restated for

clarity:

1. Whether the PCRA court erred in denying relief, where the trial court had erred previously when it

a. granted the Commonwealth’s motion to amend the criminal information against Thompson;

b. forced Thompson to proceed pro se and did not inquire properly whether substitute counsel should have been appointed;

c. forced Thompson to proceed with a jury trial without reviewing the merits of his pretrial motions;

2. Whether the PCRA court erred in denying relief, where the Commonwealth committed Brady4 violations when it

a. suppressed illegal audio recordings of the alleged drug transactions; and

b. intentionally withheld a report by Officer Olivia Conner; and

3. Whether the PCRA court erred in denying relief, where trial counsel provided ineffective assistance when she

a. failed to challenge the admissibility of tainted narcotics evidence and failed to preserve such a challenge for appeal;

4 See Brady v. Maryland, 83 S. Ct. 1194 (1963).

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b. failed to challenge the jury panel as an unfair representation of the community and thus violated his right to a trial by his peers;

c. failed to challenge the anonymity of the CI or secure her testimony at trial; and

d. failed to amend the omnibus pretrial motion in order to suppress the allegedly unconstitutional, audio surveillance by police investigators.

See Thompson’s Br. at 4-5 (edited for clarity).

We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by record evidence and

free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa.

2007). We afford the court’s factual findings deference unless there is no

support for them in the certified record. Commonwealth v. Brown, 48 A.3d

1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995

A.2d 1184, 1189 (Pa. Super. 2010)). Further, we may affirm the PCRA court’s

decision on any grounds if the record supports it. See Commonwealth v.

Reed, 107 A.3d 137, 140 (Pa.Super. 2014).

Allegations of Direct Trial Court Error

In his first issue, Thompson asserts several errors by the trial court.

See Thompson’s Br. at 13-23. According to Thompson, the trial court erred

when it granted the Commonwealth’s motion to amend the criminal

information against him. Id. at 13-15. Thompson further asserts that the

trial court erred in “forcing” him to proceed pro se, in light of his irreconcilable

differences with appointed counsel. Id. at 15-19. Finally, according to

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Thompson, the trial court failed to review the merits of his pretrial motions

filed pro se. Id. at 19-23.

Each of these assertions by Thompson constitutes an allegation of direct,

trial court error. Thompson does not plead or attempt to prove ineffective

assistance of counsel with respect to these assertions. See PCRA Petition,

09/29/2016, at ¶ 13(a)-(c); Thompson’s Br. at 13-23. However, Thompson

failed to preserve these assertions before the trial court or raise them on direct

appeal. Accordingly, we deem them waived. See Commonwealth v. Harris,

852 A.2d 1168, 1171-72 (Pa. 2004) (denying collateral relief where petitioner

failed to raise confrontation claim on direct appeal); Commonwealth v.

Williams, 732 A.2d 1167, 1176 (Pa. 1999) (denying collateral relief where

general claims of trial court error were not raised on direct appeal); 42 Pa.C.S.

§§ 9543(a)(3), 9544(b).

Absent waiver, we note with approval certain of the PCRA court’s

conclusions that these claims lack merit. See, e.g., PCRA Ct. Memo. at 3-4

(recognizing that the trial court may permit the Commonwealth to amend an

information pursuant to Pa.R.Crim.P 564, provided it does not “charge an

additional or different offense,” quoting from the prior version of the rule), 5-

6 (rejecting Thompson’s attempt to secure a second appointment of counsel

where he had appointed counsel and then temporarily elected to proceed pro

se, where initially appointed counsel was ready to proceed and Thompson

merely sought to delay trial). Further, to the extent that Thompson suggests

the amendment to the information resulted in an illegal sentence, Thompson

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is incorrect. See PCRA Petition, 09/29/2016, at ¶ 13(a) (suggesting that

information was amended “for the purpose of mandatory minimum

sentencing”); Thompson’s Br. at 13-14 (same). Thompson was not sentenced

to a mandatory minimum sentence. See Criminal Dkt No. CP-22-CR-

0003090-2013 at p. 4-5; PCRA Ct. Memo. at 3-4.

Alleged Brady Violations

Next, Thompson asserts the Commonwealth suppressed (1) illegal audio

recordings of the narcotics transactions and (2) the police report filed by

Officer Olivia Conner, both constituting a Brady violation. As with his

assertions of trial court error, Thompson’s Brady claims are waived.

[A] prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature. To establish a Brady violation, an appellant must prove three elements: (1) the evidence at issue was favorable to the accused, either because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued.

Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (formatting

modified; citations omitted). Prejudice occurs if, had there been disclosure,

there is a reasonable probability that the result of a proceeding would have

been different. Id. However, Brady is not violated when an appellant knew

or could have uncovered the evidence in question, or where the evidence was

available from other sources. Id. at 608. Further, where a PCRA petitioner

could have raised a Brady claim at trial or on direct appeal, that claim is

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waived. Id. at 609 (citing in support Commonwealth v. Chmiel, 30 A.3d,

1111, 1129-30 (Pa. 2011)).

Here, Thompson knew of the allegedly missing evidence during trial.

See, e.g., Notes of Testimony (N.T.), 03/18-19/2014, at 81 (cross-

examination testimony from Detective Dennis Simmons explaining that there

was no audio recording made from a wire placed on undercover Ofc. Conner

for her safety); 106-07 (cross-examination testimony of Ofc. Conner

admitting that she had written a report, that it was not in her possession, and

that she was aware it was not provided to Thompson). Thus, as both of the

alleged violations could have been raised at trial or on direct appeal, they are

waived. Roney, 79 A.3d at 609; 42 Pa.C.S. §§ 9543(a)(3), 9544(b).

Further, even if we were to examine the merits of these claims, no relief

would be due. Regarding his first assertion, that the Commonwealth

suppressed illegal audio recordings, Thompson concedes that no such

recordings exist. See Thompson’s Br. at 23 (suggesting that the existence of

suppressed evidence is irrelevant). Regarding Officer Connor’s report, in light

of the overwhelming evidence of Thompson’s guilt, including eyewitness

testimony of his role in the narcotics transactions, Thompson cannot establish

prejudice. Thus, his Brady claims lack merit. Roney, 79 A.3d at 607.

Allegations of Trial Counsel Ineffectiveness

Finally, Thompson contends that trial counsel was ineffective. According

to Thompson, counsel was ineffective when she (1) failed to challenge (a) the

admissibility of tainted narcotics evidence; (b) the composition of the jury

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panel; (c) the anonymity of the CI; and (2) failed to amend the omnibus

pretrial motion in order to suppress the allegedly unconstitutional, audio

surveillance by police investigators. We will address each claim in turn.

To be eligible for relief for an ineffectiveness claim, a petitioner must

establish that counsel’s deficient performance “so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). We presume counsel is

effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). To

overcome this presumption, a petitioner must establish that: (1) the

underlying claim has arguable merit; (2) counsel lacked a reasonable basis for

his act or omission; and (3) petitioner suffered actual prejudice.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In order to

establish prejudice, a petitioner must demonstrate “that there is a reasonable

probability that, but for counsel's error or omission, the result of the

proceeding would have been different.” Commonwealth v. Koehler, 36

A.3d 121, 132 (Pa. 2012). A claim will be denied if the petitioner fails to meet

any one of these prongs. See Commonwealth v. Jarosz, 152 A.3d 344,

350 (Pa.Super. 2016) (citing Commonwealth v. Daniels, 963 A.2d 409, 419

(Pa. 2009)).

Thompson suggests that narcotics evidence collected during the

investigation was tainted. See, e.g., Thompson’s Br. at 28. According to

Thompson, the narcotics evidence collected on June 3, 2013, was maintained

improperly, its original packaging destroyed, and it arrived at the criminal lab

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in unsealed baggies. Id. Thus, Thompson concludes, trial counsel should

have challenged the admissibility of this evidence and properly preserved this

claim for direct appeal. Id. at 28, 33, 45.

Thompson has not accurately portrayed the record. The Commonwealth

elicited extensive testimony establishing the manner in which this narcotics

evidence was collected, maintained, and tested. See, e.g., N.T. at 60-61

(testimony from Detective Dennis Simmons describing two quantities of crack

cocaine collected June 3, 2013, from (1) controlled buy and (2) search incident

to Thompson’s arrest, and further describing manner in which he packaged

narcotics for testing); 118-26 (testimony from Officer Jason Turchetta

describing his role as evidence custodian responsible for maintaining evidence

collected during investigation and transporting evidence to criminal lab for

testing); 148-56 (testimony from Mr. Albert Lanttanzi, criminal lab scientist,

who stated narcotics arrived in separate, sealed packaging, was tested by him,

and then replaced into two, separate, heat-sealed bags). Based upon our

review of the record, Thompson’s underlying claim alleging tainted narcotics

evidence is without merit. Thus, Thompson’s ineffectiveness claim fails. See

Treiber, 121 A.3d at 445.

Thompson next suggests that the venire from which his jury was

selected did not fairly represent the community. Thompson’s Br. at 37.

According to Thompson, the venire failed to include sufficient “urban American

minorities” such that the final, empaneled jury could “fairly weigh the

conflicting testimony of a white female officer.” Id. at 38. Further, according

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to Thompson, when he expressed this concern to counsel, she declined to

object. Id. at 38-39. Thus, Thompson concludes, counsel was ineffective.

See id. at 39.

To establish a prima facie case that a community’s jury pool selection

process violates the Sixth Amendment’s fair cross-section requirement, a

defendant must show:

1) the group allegedly excluded is a distinctive group in the community; 2) representation of this group in the pool from which juries are selected is unfair and unreasonable in relation to the number of such persons in the community; and 3) the under- representation is due to the systematic exclusion of the group in the jury selection process.

Commonwealth v. Lopez, 739 A.2d 485, 495 (Pa. 1999).

Here, Thompson has made no effort to establish either the second or

third requirement. Thompson does not quantify the minority representation

on the venire from which his jury was selected, nor does he compare this

representation proportionally with the community at large. Further, he neither

pleads nor attempts to prove that the alleged under-representation is due to

the systematic exclusion of this group. Accordingly, we conclude that this

claim is without merit, and counsel was not ineffective for not making it. See

Thompson also suggests that the identity of and testimony from the CI

was essential to impeach the testimony of police investigators and establish

an entrapment defense. Thompson’s Br. at 40-41. According to Thompson,

without this evidence, he was denied a fair trial. Id. at 41. Therefore,

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Thompson concludes, trial counsel’s failure to secure testimony from the CI

constituted ineffective assistance. See id. at 39, 41.

Before disclosure of an informer’s identity is required, “the record should

at least suggest a reasonable possibility that the information might be helpful,

so that it would be unfair to withhold it.” Commonwealth v. Herron, 380

A.2d 1228, 1230 (Pa. 1977). Here, Thompson points to no evidence of record

that would support an entrapment defense. Thus, his bald assertion that

testimony from the CI was essential is merely self-serving and does not

establish a reasonable possibility that it would be helpful. Id. Further, in light

of the extensive evidence against Thompson, including eyewitness testimony

and substantial physical evidence collected during the three controlled buys,

we conclude that Thompson cannot establish a reasonable probability that

testimony from the CI – even if favorable to him – would change the result of

his trial. Thus, in the context of his ineffective assistance of counsel claim,

Thompson cannot establish prejudice. See Koehler, 36 A.3d at 132.

Finally, Thompson suggests that counsel was ineffective when she

refused to file a motion to suppress evidence based upon the Commonwealth’s

alleged violations of the Pennsylvania Wiretapping and Electronic Surveillance

Control Act, 18 Pa.C.S. §§ 5701-5782. Thompson’s Br. at 41-44. In this

claim, Thompson renews certain allegations raised previously in his Brady

claim, in which he asserted that police investigators illegally recorded his

crimes. Id.; see also id. at 23-24.

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This Court has previously found that the failure to file a suppression motion under some circumstances may be evidence of ineffective assistance of counsel. However, if the grounds underpinning that motion are without merit, counsel will not be deemed ineffective for failing to so move.

Commonwealth v. Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016)

(formatting modified; internal citations omitted).

As noted previously, investigators did not create an audio recording

from a wire placed on undercover Officer Conner for her safety. Thompson

has cited no evidence to the contrary. Moreover, even if such a recording

existed, the Commonwealth did not seek to introduce it at trial. Thus, there

was no valid basis for counsel to file a motion to suppress this illusory

evidence. Thompson’s claim is without merit. Id.; see Treiber, 121 A.3d at

445.

For these reasons, we discern no error in the PCRA court’s dismissal of

Thompson’s petition. He is entitled to no relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/28/2018

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