Com. v. Black, A. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANTOINE MAURICE BLACK, :
:
Appellant : No. 367 MDA 2014
Appeal from the Order entered on January 22, 2014
in the Court of Common Pleas of Dauphin County,
Criminal Division, No. CP-22-CR-0003493-2010
BEFORE: BOWES, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 18, 2014
Antoine Maurice Black (“Black”), pro se, appeals from the Order
denying his first Petition for relief filed pursuant to the Post Conviction Relief
Act (“PCRA”).1 We affirm.
The PCRA court summarized the history relevant to the instant appeal
as follows:
On June 15, 2010, [Black] was stopped for a traffic
violation. His information and that of his passenger were run
and [Black] was taken into custody on an unrelated matter,
along with his passenger. As per standard procedure and at the
direction of [Harrisburg Police] Officer [Michael] McCormick
[“Officer McCormick”], the police informed [Black] that his
vehicle was going to be towed[,] since it was parked too close to
the stop sign.
The officers requested his keys, to which [Black] refused.
The officers explained that it was standard police procedure to
conduct an inventory search of towed vehicles as the vehicle’s
1
42 Pa.C.S.A. §§ 9541-9546.
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are taken to Don’s Towing Lot and anything of value over five
dollars is inventoried. Prior to towing and searching the vehicle
and while on the scene, Officer McCormick called his supervisor
for approval to conduct said inventory search. [His supervisor]
looked through the computer system to try and find a phone
number for Ms. Patricia Louise Darty (hereinafter “Ms. Darty”),
the owner of the car per its registration, but was unable to locate
one. Ms. Darty testified that she is [Black’s] cousin. The vehicle
[that Black] was driving on June 15, 2010, is in Ms. Darty’s
name, i.e., the title, tags, and insurance. However, Ms. Darty
testified that it is not her vehicle and that [Black] drives it. Ms.
Darty put the vehicle in her name because [Black] told her [that]
he could not have it in his name. Ms. Darty has driven the
vehicle approximately three (3) times before. Ms. Darty does
not know the current location of the vehicle.
[Police] Officer [Matthew] Haflett [“Officer Haflett”]
conducted a search of the trunk of the vehicle…. When he
arrived at the right side of the trunk, he noticed a CD changer
that was bolted to the side of the vehicle. There was about a
three (3) inch space between the side of the trunk and the CD
changer wherein Officer Haflett observed a baby sock with pink
glassine plastic baggies protruding from the top…. Specifically,
there were twenty-eight (28) pink baggies and one (1)
blue/purple baggie with a dolphin emblem. Based upon his
training and experience, Officer Haflett suspected the baggies
contained crack cocaine. As a result, he field tested the contents
of the baggies[,] which resulted positive for crack cocaine.
Thereafter, the drugs were sent to the Pennsylvania State Police
Lab for testing. The lab report indicated that the drugs were
tested and confirmed to be over five (5) grams of crack
cocaine….
Trial Court Opinion, 3/13/14, at 3-4. Black was transported to the police
station. Id. at 5. During a strip search of Black conducted upon his arrival
at the station, officers discovered a blue/purple baggie with a dolphin
emblem. Id. The baggie matched the baggies found in the baby sock found
in the vehicle. Id. That baggie contained 0.18 grams of crack cocaine. Id.
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Black was charged with possession with intent to deliver a controlled
substance, possession of drug paraphernalia, driving without a license,
driving while operating privileges are suspended or revoked, and the
summary offense of turning movements and required signals.2 Represented
by the public defender’s office, Black filed a pre-trial suppression Motion,
which the suppression court denied.
A jury convicted Black of the above-described charges. On January
17, 2013, the trial court sentenced Black to an aggregate prison term of
three to six years, followed by one year of probation. The trial court
credited Black with the time he served in jail from December 4, 2012 to
January 16, 2013. After sentencing, Black requested leave to represent
himself during his direct appeal. After a hearing, Black was permitted to
proceed pro se. On direct appeal, this Court affirmed Black’s judgment of
sentence, after which the Pennsylvania Supreme Court denied allowance of
appeal. Commonwealth v. Black, 91 A.3d 1286 (Pa. Super. 2013)
(unpublished memorandum), appeal denied, 2013 Pa. LEXIS 2027.
On November 23, 2013, Black, pro se, timely filed his first PCRA
Petition. The PCRA court appointed Jennifer Tobias, Esquire (“Attorney
Tobias”), to represent Black. On January 15, 2014, Attorney Tobias filed a
Petition to withdraw from representation pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
2
35 P.S. §§ 780-113(a)(30), (32); 75 Pa.C.S.A. §§ 1501, 1543, 3334.
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A.2d 213 (Pa. Super. 1988) (en banc). Thereafter, the PCRA court issued
Notice of its intention to dismiss Black’s PCRA Petition and a Memorandum
Opinion. On January 22, 2014, the PCRA court denied Black’s Petition.
Black timely filed a Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b)
Concise Statement of Matters Complained of on Appeal.
On appeal, Black presents the following claims for our review:
(A). Whether PCRA counsel, [Attorney Tobias], gave ineffective
assistance[] for failing to raise ineffective assistance of trial
counsel, … for failing to raise ineffective assistan[ce] of
suppression hearing counsel, … for failing to object to Officer
McCormick’s testimony at the suppression hearing, and at trial
concerning [Black’s] vehicle being a safety hazard[?]
(B). Whether PCRA counsel, [Attorney Tobias], gave ineffective
assistance[] for failing to raise ineffective assistance of trial
counsel, … for failing to raise ineffective assistan[ce] of
suppression hearing counsel, … for failing to raise a “weight
claim” defense during pre-trial, trial and post-sentence, when
[Black] asked them to raise this claim[?]
(C). Whether PCRA counsel, [Attorney Tobias], gave ineffective
assistance[] for failing to raise ineffective assistance of trial
counsel, … for failing to raise ineffective assistan[ce] of
suppression hearing counsel, … for failing to investigate [Black’s]
actual innocence[?]
(D). Whether PCRA counsel, [Attorney Tobias], gave ineffective
assistance[] for failing to raise ineffective assistance of trial
counsel, … for failing to raise ineffective assistan[ce] of
suppression hearing counsel, … for citing the wrong case law[]
and statute at [Black’s] suppression hearing, prejudicing [Black]
in the process[?]
(E). Whether PCRA counsel, [Attorney Tobias], gave ineffective
assistance[] for failing to raise ineffective assistance of
suppression hearing counsel, … for failing to argue [that] “trial
court erred and abused its discretion[] by denying [Black’s]
Motion to Suppress Evidence found in [Black’s] vehicle”; “[t]he
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police had no probable cause to tow[] and inventory search
[Black’s] vehicle without a search warrant”[;] [and that] “[t]his
constituted [] a ‘warrantless search[]’”[?]
(F). Whether PCRA counsel, [Attorney Tobias], gave ineffective
assistance[] for failing to raise ineffective assistance of trial
counsel, … for failing to raise ineffective assistan[ce] of
suppression hearing counsel, … for failing to argue[] “the plain
view doctrine,” as a defense for [Black?]
(G). Whether PCRA counsel, [Attorney Tobias], trial counsel, …
and suppression hearing counsel, … completely abandon[ed]
[Black] by not filing any motions [or] appeals, when [Black]
asked them to do so, violating [Black’s] sixth [] Amendment
right to effective assistance of counsel at [sic] at stages of the
appeal process[?]
Brief for Appellant at 5-7 (emphasis in original).
An appellate court’s standard of review regarding an order denying a
PCRA petition is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Kretchmar, 971 A.2d 1249, 1251 (Pa. Super. 2009). The PCRA court’s
findings will not be disturbed unless there is no support for the findings in
the certified record. Commonwealth v. Treadwell, 911 A.2d 987, 989
(Pa. Super. 2006).
Black’s seven issues assert various claims of ineffective assistance of
counsel. To be eligible for relief based on a claim of ineffective assistance of
counsel, a PCRA petitioner must demonstrate, by a preponderance of the
evidence, that (1) the underlying claim is of arguable merit; (2) no
reasonable basis existed for counsel’s action or omission; and (3) there is a
reasonable probability that the result of the proceeding would have been
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different absent such error. Commonwealth v. Steele, 961 A.2d 786, 796
(Pa. 2008). With regard to the second, i.e., the “reasonable basis” prong,
this Court will conclude that counsel’s chosen strategy lacked a reasonable
basis only if the appellant proves that “an alternative not chosen offered a
potential for success substantially greater than the course actually pursued.”
Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (citation
omitted). To establish the third prong, i.e., prejudice, the appellant must
show that there is a reasonable probability that the outcome of the
proceedings would have been different but for counsel’s action or inaction.
Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).
Black first claims that PCRA counsel rendered ineffective assistance by
failing to claim that his suppression hearing counsel rendered ineffective
assistance. Brief for Appellant at 10. Black asserts that his suppression
hearing counsel rendered ineffective assistance by failing to object to the
testimony of Officer McCormick that Black’s vehicle presented a safety
hazard, which justified towing the vehicle. Id. at 12. According to Black,
Officer McCormick’s suppression hearing testimony directly contradicted his
testimony at the preliminary hearing. Id. At the preliminary hearing, Black
asserts, Officer McCormick testified that Black’s car was not a safety hazard.
Id. Black contends that his suppression hearing counsel rendered
ineffective assistance by failing to object to Officer McCormick’s testimony on
this basis. Id. at 13.
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Our review of the record discloses that Black did not raise this claim in
his pro se PCRA Petition. To overcome this waiver, Black avers that his
PCRA counsel rendered ineffective assistance by not raising this claim. The
record, however, discloses no arguable merit to Black’s ineffectiveness
claims.
Black’s underlying ineffectiveness claim is premised upon his assertion
that Officer McCormick’s suppression hearing testimony contradicted the
testimony he presented at the preliminary hearing. However, the notes of
testimony from the preliminary hearing are not included in the certified
record. In his appellate brief, Black has attached an affidavit, dated March
21, 2014, averring that Officer McCormick testified at the preliminary
hearing that Black’s vehicle presented no safety hazard. This affidavit was
not presented to the PCRA court and is not part of the certified record.
“[D]ocuments which are not part of the certified record on appeal are
considered to be non-existent.” Lundy v. Manchel, 865 A.2d 850, 855 (Pa.
Super. 2004). “[T]hese deficiencies may not be remedied by inclusion in a
brief.” Id. Those items that do not appear of record do not exist for
appellate purposes. Stumpf v. Nye, 950 A.2d 1032, 1041 (Pa. Super.
2008). Because Black did not raise this claim in his pro se PCRA Petition and
the record includes no evidence supporting for his claim, Black has failed to
establish arguable merit to his claim of ineffective assistance of suppression
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hearing counsel or PCRA counsel. Therefore, we cannot grant him relief on
this claim.3
Black next claims that his trial counsel rendered ineffective assistance
by failing to file a post-sentence motion challenging the verdict as against
the weight of the evidence. Brief for Appellant at 15. In its Opinion, the
PCRA court addressed this claim and concluded that it lacks merit. PCRA
Court Opinion, 3/13/14, at 8-9. We agree with the reasoning of the PCRA
court, and affirm on this basis. See id.In his third claim, Black argues that his PCRA counsel rendered
ineffective assistance by failing to claim the ineffective assistance of prior
counsel for not investigating his “actual innocence.” Brief for Appellant at
23. In support, Black asserts that his claim has arguable merit because the
evidence was not sufficient to sustain his verdict. Id. at 24. In this regard,
Black asserts that “the lab results proved [that his] fingerprints or DNA
wasn’t on the sandwich baggie,” and that police did not charge him related
to contraband found during his strip search. Id.
Our review of the record discloses that in his Pa.R.A.P. 1925(b)
Concise Statement, Black’s ineffectiveness claim did not address the
sufficiency of the evidence. Rather, Black presented the following claim:
3
In his Affidavit of Probable Cause, which is part of the record, Officer
McCormick averred that Black’s vehicle “was parked illegally at the
intersection. It was parked directly next to a stop sign and more than 12”
from the curb.” Affidavit of Probable Cause, 6/15/10. Officer McCormick’s
suppression hearing testimony was consistent with this statement. See
N.T., 6/7/11, at 5.
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PCRA Counsel … gave ineffective assistance for failing to raise
the ineffective assistance of trial counsel, … for failing to raise
the ineffective assistance of Suppression Hearing counsel, … for
failing to investigate [Black’s] actual innocence….
Concise Statement, ¶ 3. Because Black’s Concise Statement raised a
boilerplate and vague claim, the PCRA court concluded that the claim was
waived and denied relief. PCRA Court Opinion, 3/13/14, at 9. We agree,
and affirm on this basis. See id.
Black next claims that his suppression counsel rendered ineffective
assistance by citing “the wrong caselaw and statute” at his suppression
hearing. Brief for Appellant at 28. Black argues that his suppression
counsel referred to Pennsylvania Constitution Article I, section 9, rather than
section 8, as the provision applicable to illegal searches and seizure. Id. at
29. Black claims that his PCRA counsel rendered ineffective assistance by
not raising this claim. Id. at 28.
In its Opinion, the PCRA court addressed this claim and concluded that
it lacks merit. PCRA Court Opinion, 3/13/14, at 9-11. We agree with the
PCRA court’s determination that suppression counsel did not render
ineffective assistance by stating the wrong section number. Id. at 10.
Accordingly, we affirm on the basis of the PCRA court’s Opinion with regard
to this claim.4 See id. at 9-11.
4
We do not adopt the PCRA court’s speculation as to suppression hearing
counsel’s motivation for failing to correct his error.
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In his fifth claim, Black asserts that his trial counsel rendered
ineffective assistance by failing to challenge the suppression court’s denial of
Black’s suppression Motion. Brief for Appellant at 30. Black asserts that the
Commonwealth failed to prove that he constructively possessed the
controlled substances found in the vehicle; the police officers failed to follow
a uniform policy on inventory searches; and there were no exigent
circumstances permitting a search of the vehicle without a warrant. Id. at
33-42.
In order to be eligible for PCRA relief, Black was required to plead and
prove that “the allegation of error has not been previously litigated or
waived.” 42 Pa.C.S.A. § 9543(a)(3). “[A]n issue is waived if the petitioner
could have raised it but failed to do so before trial, at trial, during unitary
review, on appeal or in a prior state post-conviction proceeding.” Id.
§ 9544(b).
Our review of the record discloses that Black did not raise this claim in
his pro se direct appeal. Because this claim could have been raised on direct
appeal and Black failed to do so, Black’s claim is not cognizable under the
PCRA. Black’s PCRA counsel cannot be deemed ineffective for failing to raise
a claim that is without merit. See Commonwealth v. Fears, 86 A.3d 795,
804 (Pa. 2014) (stating that counsel cannot be deemed ineffective for failing
to raise a claim that lacks merit). Accordingly, we cannot grant Black relief
on this claim.
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In his sixth claim, Black argues that his suppression counsel rendered
ineffective assistance by failing to argue the “plain view” doctrine as a
defense. Brief for Appellant at 44. Black asserts that his PCRA counsel
rendered ineffective assistance by not raising this claim before the PCRA
court. Id.Our review discloses that during his pro se direct appeal, Black did not
challenge the legality of the vehicle search and the applicability of the plain
view doctrine. Because Black could have raised this issue on direct appeal,
and failed to do so, he was not eligible for relief under the PCRA. See 42
Pa.C.S.A. § 9543(a)(3). Black’s PCRA counsel cannot be deemed ineffective
for failing to raise a claim that is without merit. See Fears, 86 A.3d at 804.
Accordingly, we cannot grant Black relief on this claim.
In his seventh claim, Black argues that all prior counsel rendered
ineffective assistance “by not filing any motions [or] appeals, when [Black]
asked them to do so, violating [Black’s] Sixth (6th) Amendment right to
effective assistance of counsel, at all stages of the proceedings.” Brief for
Appellant at 57 (emphasis omitted). In support, Black argues that his PCRA
counsel refused to file an amended PCRA petition. Id. at 58. Black also
claims that his trial counsel rendered ineffective assistance. Id.
In its Opinion, the PCRA court addressed this claim and concluded that
it lacks merit. PCRA Court Opinion, 3/13/14, at 12. We agree, and affirm
based upon the reasons stated in the PCRA court’s Opinion. See id.
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Order affirmed.
Ott, J., joins the memorandum.
Bowes, J., files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2014
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