Com. v. Thomas, D. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK LEWIS THOMAS :
:
Appellant : No. 1337 MDA 2018
Appeal from the PCRA Order Entered July 24, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002118-2015
BEFORE: SHOGAN, J., OTT, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MAY 14, 2019
Appellant, Derrick Lewis Thomas, appeals pro se from the order
dismissing his first petition for relief filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the factual and procedural history of this
case as follows:
On January 16, 2015, [Appellant] was charged by way of
criminal complaint with Possession With Intent to Deliver a
Controlled Substance and Unlawful Possession of Drug
Paraphernalia.[1] A jury trial was held on February 10-11, 2016.
On February 18, 2016, [Appellant] was sentenced to an aggregate
term of 90 to 180 months incarceration. Following the trial court’s
denial of post-sentence motions, a Notice of Appeal was filed in
the Pennsylvania Superior Court1. The Pennsylvania Superior
Court affirmed the judgment of sentence. See Commonwealth v.
Thomas, 581 MDA 2016, 2017 WL 1003027[,] (Pa. Super. March
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1 35 P.S. §§ 780-113(a)(30) and (a)(32), respectively.
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* Former Justice specially assigned to the Superior Court.
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24, 2017). The Pennsylvania Supreme Court denied [Appellant’s]
Petition for Allowance of Appeal on August 16, 2017.
1 Filed April 8, 2016.
On January 8, 2018, [Appellant] filed a timely pro se Motion
for [PCRA relief], for which this [c]ourt appointed PCRA counsel
Amanda Batz. Ms. Batz filed a Petition to Vacate Previous
Appointment and to Appoint Alternative Counsel2 on January 18,
2018. On January 22, 2018, this [c]ourt granted the Petition to
Vacate and appointed new PCRA counsel Jonathan W. Crisp,
Esquire. PCRA Counsel filed, and this [c]ourt granted, three
Motion(s) for Extension of Time to file [a] Supplemental PCRA
Petition. On May 7, 2018, PCRA Counsel filed a No Merit
Turner/Finley Memorandum, a Petition for Leave to Withdraw as
Counsel, and a Letter (advising [Appellant] of his rights).
2 The [c]ourt noted that Attorney Batz was previously
involved as prior counsel at the suppression hearing
and [Appellant] sent a letter to the court requesting
that new PCRA counsel be appointed.
PCRA Court Opinion, 6/29/18, at 1-2.
The PCRA court issued its notice of intent to dismiss Appellant’s PCRA
petition on June 29, 2018. In that same order, the PCRA court granted
Attorney Crisp permission to withdraw. Order, 6/29/18, at 9. Appellant filed
a response on July 23, 2018. By order entered July 24, 2018, the PCRA court
dismissed Appellant’s PCRA petition. Appellant filed an appeal, pro se, on
August 10, 2018. Appellant filed a Pa.R.A.P. 1925(b) statement, and on
September 4, 2018, the PCRA court filed a Statement in Lieu of Memorandum
Opinion, stating that its reasons for dismissal were contained in its
Memorandum Order filed June 29, 2018.
On appeal, Appellant presents the following issues:
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I. Whether the PCRA Judge was in error in not granting relief
on the PCRA petition alleging counsel was ineffective.
II. Whether the PCRA Judge was in error in denying the
Appellant’s PCRA petition without an evidentiary hearing on
the issues raised in the PCRA petition regarding trial
counsel, and PCRA counsel’s ineffectiveness.
Appellant’s Brief at 8 (reordered for ease of disposition).
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA court’s
determination is free of legal error. Commonwealth v. Phillips, 31 A.3d
317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record. Id. “With
respect to the PCRA court’s decision to deny a request for an evidentiary
hearing, or to hold a limited evidentiary hearing, such a decision is within the
discretion of the PCRA court and will not be overturned absent an abuse of
discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).
Although in his statement of questions involved Appellant presents two
issues, the argument section of his brief contains multiple sub-issues.2
Appellant’s failure to list these additional sub-claims in the statement of
questions involved constitutes a violation of the rules of appellate procedure.
Rule 2116 of the Pennsylvania Rules of Appellate Procedure provides, in
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2 It is difficult to determine how many sub-issues Appellant is raising. He
alternates between lettered headings and numbered “claims” throughout the
argument section of his brief. Appellant’s Brief at 13-19.
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relevant part: “The statement of the questions involved must state concisely
the issues to be resolved, expressed in the terms and circumstances of the
case but without unnecessary detail. . . . No question will be considered
unless it is stated in the statement of questions involved or is fairly suggested
thereby.” Pa.R.A.P. 2116. “[I]f the defects are in the brief . . . of the appellant
and are substantial, the appeal or other matter may be quashed or dismissed.”
Pa.R.A.P. 2012. Appellant’s multiple sub-issues are not fairly suggested by
the issues presented in his statement of questions involved. While we could
find waiver of these issues on this basis, to the extent we are able to discern
Appellant’s arguments as presented in the argument section of his brief, we
shall address them.
In sub-issue “A” under issue “I,” Appellant asserts that “his
constitutional rights were violated when arresting police officers enter[ed] the
vehicle where he was a passenger, and that there was no probable cause to
enter such vehicle without a warrant, and any such evidence sustain[ed] from
the illegal search, should have been suppressed.” Appellant’s Brief at 14. This
claim was previously litigated.
In order to be eligible for relief under the PCRA, the error asserted must
not have been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An
issue has been previously litigated if “the highest appellate court in which the
petitioner could have had review as a matter of right has ruled on the merits
of the issue.” 42 Pa.C.S. § 9544(a)(2). On direct appeal, a panel of this Court
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addressed Appellant’s suppression claim and concluded that there was
probable cause to stop and search the vehicle. Thomas, 581 MDA 2016, at
3-6. Thus, Appellant is entitled to no relief on this claim.
In sub-issue “B,” Appellant asserts that his due process rights were
violated by counsel’s failure to have the arresting police officer, Gina Pupo,
present at the suppression hearing. Appellant’s Brief at 15.3 Appellant
contends that because of this, “his rights to appeal was [sic] hindered and
obstructed.” Id.
Our Supreme Court has explained the following in addressing an
ineffective assistance of counsel claim:
To prevail in a claim of ineffective assistance of counsel, a
petitioner must overcome the presumption that counsel is
effective by establishing all of the following three elements, as set
forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
975–76 (1987): (1) the underlying legal claim has arguable
merit; (2) counsel had no reasonable basis for his or her action or
inaction; and (3) the petitioner suffered prejudice because of
counsel’s ineffectiveness.
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). “In order to meet
the prejudice prong of the ineffectiveness standard, a defendant must show
that there is a ‘reasonable probability that but for counsel’s unprofessional
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3Appellant also inexplicably asserts in the context of this claim that the verdict
was against the weight of the evidence. Appellant’s Brief at 15. Appellant
does not identify which verdict he claims to be against the weight of the
evidence or develop any further argument. Id.
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errors, the result of the proceeding would have been different.’”
Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).
A claim of ineffective assistance of counsel will fail if the petitioner does
not meet any of the three prongs. Commonwealth v. Williams, 863 A.2d
505, 513 (Pa. 2004). “The burden of proving ineffectiveness rests with
Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).
When reviewing a claim that counsel was ineffective for failing to call a
witness, we observe that:
a failure to call a witness is not per se ineffective assistance of
counsel as such decision generally involves a matter of trial
strategy. To establish a claim that counsel was ineffective for
failing to call a witness, a defendant must establish that the
witness existed and was available, that counsel was informed of
the witness’s existence, that the witness was ready and willing to
testify and that the absence of the witness prejudiced the
defendant to a point where the defendant was denied a fair trial.
Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. Super. 2007).
The PCRA court provided the following analysis on this issue:
[Appellant] fails to satisfy the prejudice prong as the record
reflects that Officer Pupo testified against [Appellant] at trial and
was not willing to appear on his behalf. See Transcript of
Proceedings, Jury Trial, February 10-11, 2016, pages 122-127.
[Appellant] has failed to show how Officer Pupo’s testimony at the
suppression hearing would have been beneficial to him as Officer
Pupo testified against [Appellant] at trial. As such, [Appellant]
has not shown that the outcome of the trial would have been
different if Officer Pupo testified or that Officer Pupo’s lack of
testimony at the suppression hearing prejudiced him.
Accordingly, this issue is without merit.
PCRA Court Opinion, 6/29/18, at 7 (emphasis in original).
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We agree. Appellant has failed to establish that Officer Pupo was ready
and willing to testify in his favor. Moser, 921 A.2d at 531. Indeed, the fact
that she testified against him leads to the opposite conclusion. Furthermore,
Appellant has failed to establish that the absence of Officer Pupo at the
suppression hearing prejudiced him to the degree that he was denied a fair
trial. Moser, 921 A.2d at 531. Thus, Appellant has failed to establish counsel
was ineffective for failing to have Officer Pupo present and testify at the
suppression hearing.
In Appellant’s next claim, which he labels “B(1),” he maintains that
direct appeal counsel and PCRA counsel4 were ineffective for failing to raise
the issue that attorney Brian McQuillan “violated professional ethical
standards, when he was appointed by the courts to represent [Appellant] at
trial, when in fact counsel did not disclose that he was also appointed by the
courts while, also being retained and paid by [Appellant].” Appellant’s Brief
at 15. Despite Appellant’s assertion, he has failed to present any evidence
supporting the underlying claim that Attorney McQuillan was appointed by the
court and that Appellant was also paying Attorney McQuillan to represent him.
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4 “[C]laims of PCRA counsel ineffectiveness cannot be raised for the first time
after a notice of appeal has been taken from the underlying PCRA matter.”
Commonwealth v. Ford, 44 A.3d 1190, 1200-1201 (Pa. Super. 2012).
“Issues of PCRA counsel effectiveness must be raised in a serial PCRA petition
or in response to a notice of dismissal before the PCRA court.” Id. Here,
Appellant raised claims of PCRA counsel’s ineffectiveness in his response to
the PCRA court’s notice of intent to dismiss, filed July 23, 2018.
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Because there is no basis for the conclusion that the underlying legal claim
has any arguable merit, direct appeal and PCRA counsel cannot be deemed
ineffective for failing to raise it. Paddy, 15 A.3d at 442. Appellant is entitled
to no relief on this claim.
Appellant next asserts in claim “C” that “the unavailability at the time of
trial of exculpatory evidence that has subsequently become available and [sic]
would have changed the outcome of trial if it had been introduced.”
Appellant’s Brief at 15. The evidence Appellant references is “evidence based
off the district attorney[’s] remarks to the jury that they had in their
possession videos and audios of the appellant[’s] actions the day of this
incident.” Id. at 16. He contends this evidence “clearly suggest[s] that there
was exculpatory evidence withheld at trial, and that the district attorney never
introduced this evidence as part of the record.” Id.
To be eligible for relief on a claim of after-discovered evidence, a PCRA
petitioner must plead and prove by a preponderance of the evidence “[t]he
unavailability at the time of trial of exculpatory evidence that has subsequently
become available and would have changed the outcome of the trial if it had
been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi). To evaluate such a claim:
[an] appellant must demonstrate that the evidence: (1) could not
have been obtained prior to the conclusion of the trial by the
exercise of reasonable diligence; (2) is not merely corroborative
or cumulative; (3) will not be used solely to impeach the credibility
of a witness; and (4) would likely result in a different verdict if a
new trial were granted.
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008)).
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We first note that Appellant has failed to identify the alleged after-
discovered evidence with any specificity. Appellant does not explain why this
evidence was unavailable at the time of trial, when it became available, or
why it could not have been obtained prior to the conclusion of trial by the
exercise of due diligence. Pagan, 950 A.2d at 292. Moreover, Appellant has
failed to establish that introduction of this evidence would likely result in a
different verdict if a new trial were granted. Id. Accordingly, Appellant is
entitled to no relief on this claim.
In sub-issue “D,” Appellant addresses issues identified by the PCRA
court as claims four through ten as set forth by PCRA counsel, that the PCRA
court had found to be previously litigated. Appellant’s Brief at 16. Specifically,
Appellant alleges as follows:
Claim 4: an absence of probable cause for the arresting officer’s
search and seizure of [Appellant] and vehicle in which he was a
passenger. Claim 5: the credibility of testimony offered by officer
Brooks and officer Pupo at [Appellant’s] suppression hearing and
at trial. Claim 6: the denial of the right to due process because
Officer Gina Pupo was not called to testify at the suppression
hearing. Claim 7: the weight of the evidence relied upon for the
suppression court’s decision absent the testimony from Officer
Gina Pupo. Claim 8: the weight of the evidence related to
[Appellant’s] conviction. Claim 9: the trial court’s denial of
[Appellant’s] post sentence motions following his conviction.
Claim 10: the conviction was obtained in violation of the right to
due process of the law and equal protection of the laws,
specifically unreasonable search and seizures.
Appellant’s Brief at 16 (emphases in original). “Appellant[] states that these
claims were not previously litigated or waived.” Id. at 16. Appellant further
maintains that he “has shown all necessary elements to warrant relief where
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trial, direct appeal, and PCRA counsel were ineffective, and that appellant
suffered actual prejudice as a result of counsel’s failure to have arresting police
officer Gina Pupo present at suppression hearing.” Id. at 17.
As stated by the PCRA court, all of these issues were previously litigated
on direct appeal. Thomas, 581 MDA 2016, at 1-11. Moreover, the previous
panel of this Court found no merit to any of these claims. As a result, to the
degree Appellant is asserting trial, direct appeal, and PCRA counsel’s
ineffectiveness, we conclude that counsel cannot be deemed ineffective for
failing to raise a meritless claim. See Commonwealth v. Spotz, 896 A.2d
1191, 1210 (Pa. 2006) (“Counsel will not be deemed ineffective for failing to
raise a meritless claim.”). Additionally, for reasons stated previously, counsel
was not ineffective for failing to have Officer Pupo present at the suppression
hearing.
In Claim “E,” Appellant again asserts counsel’s ineffectiveness for failure
to have Officer Pupo at the suppression hearing. Appellant’s Brief at 17. For
reasons stated previously, Appellant is entitled to no relief on this claim.
In “Claim 11,” Appellant argues ineffective assistance of preliminary
hearing counsel Bryan Walk, relating to his representation of Appellant and
Appellant’s co-defendant at the preliminary hearing. Appellant’s Brief at 17.
Appellant asserts that counsel’s representation of both defendants at the
preliminary hearing was a conflict of interest and “that he was prejudice[d]
when he was charged with contraband that did not belong to him at [the]
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preliminary [hearing], and that these charges were held over onto the
appellant at [sic] trial, causing actual harm; thus violating his due process
rights.” Id.
It has been well established that dual representation alone
does not create a conflict of interest. While the mere existence of
a conflict of interest vitiates the proceedings, a defendant still has
the burden of demonstrating that a conflict of interest actually did
exist. In order to carry this burden, the defendant need not show
that actual harm resulted, but he must at least show the possibility
of harm.
Commonwealth v. Brown, 972 A.2d 529, 530 (Pa. Super. 2009) (internal
citations omitted). “[A]ppellant will satisfy the requirement of demonstrating
possible harm, if he can show, inter alia, ‘that he had a defense inconsistent
with that advanced by the other client, or that counsel neglected his case in
order to give the other client a more spirited defense.’” Commonwealth v.
Breaker, 318 A.2d 354, 356 (Pa. 1974).
We note that “[t]he preliminary hearing is not a trial.” Commonwealth
v. Hilliard, 172 A.3d 5, 10 (Pa. Super. 2017) (quoting Commonwealth v.
Weigle, 997 A.2d 306, 311 (Pa. 2010)). “The principal function of a
preliminary hearing is to protect an individual’s right against an unlawful arrest
and detention.” Id. “At the pre-trial stage of a criminal prosecution, it is not
necessary for the Commonwealth to prove the defendant’s guilt beyond a
reasonable doubt[.]” Id. (quoting Commonwealth v. Huggins, 836 A.2d
862, 866 (Pa. 2003)).
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Here, attorney Bryan Walk represented Appellant and his co-defendant
only at the preliminary hearing. Appellant was represented individually by
attorney Amanda Batz at his suppression hearing and by attorney Ronald
Gross at trial. As stated, the function of the preliminary hearing was solely to
determine if a prima facie case existed against Appellant. Appellant has failed
to establish that the dual representation during the preliminary hearing
resulted in a conflict of interest. Brown, 972 A.2d at 530. Appellant has not
demonstrated “actual harm,” nor has he alleged “possible harm” by showing
that he had a defense inconsistent with that advanced by the other client, or
that counsel neglected his case in order to give the other client a more spirited
defense. Breaker, 318 A.2d at 356. “Indeed, once a defendant has gone to
trial and has been found guilty of the crime or crimes charged, any defect in
the preliminary hearing is rendered immaterial.” Commonwealth v.
Sanchez, 82 A.3d 943, 984 (Pa. 2013). Thus, Appellant has failed to establish
Attorney Walk’s ineffectiveness.
In “Claim 12,” Appellant argues the ineffective assistance of suppression
counsel Amanda Batz for failure to call Officer Pupo to testify at the
suppression hearing. For reasons previously stated, Appellant is entitled to
no relief on this claim.
In what he deems “Claim 13,” Appellant asserts that attorney Brian
McQuillan was ineffective for permitting an associate at his firm to handle
Appellant’s suppression hearing. Appellant’s Brief at 18. Appellant contends
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that Attorney Batz “denied the [A]ppellant due process when she failed to
protect [Appellant’s] best interest at hand, by not securing every defense that
was available to her, that would be beneficial for [Appellant] at trial[.]” Id.
Appellant continues that “counsel was indeed ineffective, and [the] PCRA court
incorrectly denied [the] PCRA petition without first given [sic] an evidentiary
hearing.” Id. Appellant further maintains that if Attorney McQuillan would
have been present at the suppression hearing, Attorney McQuillan would have
given “the representation that he was retained to do” because Attorney
McQuillan assured Appellant that he would have Officer Pupo present at the
suppression hearing. Id.
Appellant fails to identify with specificity how Attorney Batz was
ineffective. To the extent he is arguing that Attorney Batz was ineffective for
failing to have Officer Pupo attend and testify at the suppression hearing, we
have previously determined that claim is without merit. Thus, Attorney Batz
cannot be deemed ineffective on that basis. Moreover, because there is no
merit to the underlying claim, and Appellant has not established that he was
prejudiced by Attorney Batz’s handling of his suppression hearing, Attorney
McQuillan cannot be deemed ineffective. Appellant is entitled to no relief on
this issue.
In “Claim 14,” Appellant asserts that trial counsel Ronald Gross was
ineffective for failing to secure suppression of the crack cocaine “discovered
in [Appellant’s] possession at the time of his arrest.” Appellant’s Brief at 19.
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Appellant again argues that there was no probable cause supporting the
search of the vehicle. Id.
As explained, a prior panel of this Court concluded that the suppression
court did not erroneously deny appellant’s motion to suppress. Thus, the
underlying legal claim lacks merit. Accordingly, Attorney Ronald Gross cannot
be deemed to be ineffective. Paddy, 15 A.3d at 442. Appellant is entitled to
no relief on this claim.
In the second issue as presented in the statement of questions involved,
Appellant asserts that the PCRA court erred in denying his PCRA petition
without holding an evidentiary hearing on the allegations of counsel’s
ineffectiveness. Appellant’s Brief at 8, 12-13. It is well settled that “[t]here
is no absolute right to an evidentiary hearing on a PCRA petition, and if the
PCRA court can determine from the record that no genuine issues of material
fact exist, then a hearing is not necessary.” Commonwealth v. Jones, 942
A.2d 903, 906 (Pa. Super. 2008).
To obtain reversal of a PCRA court’s decision to dismiss a petition
without a hearing, an appellant must show that he raised a
genuine issue of fact which, if resolved in his favor, would have
entitled him to relief, or that the court otherwise abused its
discretion in denying a hearing.
Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).
As explained in addressing Appellant’s first issue and sub-issues, the
PCRA court’s determination that Appellant is not entitled to relief on any of his
claims is supported by the record. Because the PCRA court concluded that
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there was no merit to Appellant’s allegations of trial and PCRA counsel’s
ineffectiveness, it did not abuse its discretion in dismissing Appellant’s petition
without holding an evidentiary hearing. Hanible, 30 A.3d at 452. Appellant’s
contrary claim lacks merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/14/2019
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