Com. v. Feliciano, E. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
EDDIE FELICIANO,
Appellant No. 27 MDA 2015
Appeal from the PCRA Order entered December 18, 2014,
in the Court of Common Pleas of Berks County,
Criminal Division, at No(s): CP-06-CR-0003359-2010
BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.
MEMORANDUM BY ALLEN, J.: FILED JULY 10, 2015
Eddie Feliciano (“Appellant”) appeals pro se from the order denying his
first petition for relief under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. sections 9541-46. We affirm the PCRA court’s order in part, and
remand for resentencing.
The pertinent facts have been summarized as follows:
On Monday, January 18, 2010, Detective Christopher
Mayer of the Reading Police Department was working in an
undercover capacity in the Vice Section handling drug
transactions, among other matters. At the time, Detective
[Pasquale] Leporace was also working in the Vice Section
of the Reading Police Department. After receiving
information from a confidential source, Detective Leporace
instructed Detective Mayer to accompany the confidential
source to the 800 block of Locust Street in the City of
Reading, Berks County, Pennsylvania, to attempt to
purchase five bags containing cocaine from [Appellant].
A few moments after Detective Mayer and the
confidential source arrived in the 800 block of Locust
*Retired Senior Judge specially assigned to the Superior Court.
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Street, [Appellant] exited 848 Locust Street and walked to
the passenger side of Detective Mayer’s vehicle. Detective
Mayer was driving a blue, late-80’s model Chevrolet pickup
truck. [Appellant] approached the passenger side of the
truck and handed the confidential source five bags
containing a substance that subsequently tested positive
for cocaine. Detective Mayer took the five packets from
the confidential source and handed [Appellant] $40 in pre-
recorded U.S. currency. [Appellant] walked away from the
truck, and Detective Mayer and the confidential source
went to the Vice Office, where Detective Mayer performed
a preliminary Valtox test on the substance in the packets.
The substance tested positive for cocaine. Detective Mayer
then placed the five packets containing cocaine into an
evidence envelope, which he sent to the Bethlehem
Regional Laboratory for chemical testing.
On January 21, 2010, Detective Mayer returned to the
800 block of Locust Street with the confidential source
around 2:30 [p.m.] Detective Mayer was driving the same
blue truck. After parking the truck, Detective Mayer
encountered an unnamed Hispanic female (hereinafter
“Jane Doe”). Detective Mayer stepped out of the truck and
spoke with Jane Doe. She told [Detective Mayer], “he’s
bagging it up. He will be out.” Jane Doe walked into 848
Locust Street, and Detective Mayer returned to the driver’s
seat of the truck. A few moments later, [Appellant] exited
848 Locust Street, approached the truck, and got in the
passenger side. [Appellant] instructed Detective Mayer to
drive around the block. During the ride, Detective Mayer
handed [Appellant] $40 in pre-recorded U.S. currency in
exchange for five bags containing a substance that
subsequently tested positive for cocaine.
Commonwealth v. Feliciano, 67 A.3d 19, 21-22 (Pa. Super. 2013) (en
banc) (citation omitted).
Appellant was arrested and charged with multiple drug and conspiracy
offenses. Over Appellant’s objection at his jury trial, the trial court
permitted the statement made by Jane Doe. See N.T., 3/23/11, at 29. The
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jury convicted Appellant of all charges. On March 30, 2011, the trial court
imposed an aggregate term of seven years and three months to fourteen
years and six months of imprisonment.
Appellant filed a timely appeal to this Court. After a panel of this
Court originally reversed and remanded for a new trial based upon its belief
that Jane Doe’s statement was inadmissible, we granted the
Commonwealth’s petition for reargument. Feliciano, 67 A.3d at 23. In a
published opinion, we rejected Appellant’s challenges to the sufficiency of
the evidence, as well as to the chain of custody of the drugs. Additionally,
we concluded that the trial court properly admitted Jane Doe’s statement to
Detective Mayer under the co-conspirator exception to the hearsay rule. Id.
at 26-27. On November 16, 2013, our Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v. Feliciano, 81 A.3d 75(Pa. 2013).
On February 24, 2014, Appellant filed a pro se PCRA petition, and the
PCRA court appointed counsel. On July 9, 2014, PCRA counsel filed a motion
to withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988) (en banc). In his “no-merit” letter, PCRA counsel
addressed each issue raised by Appellant in his pro se petition, and
concluded that Appellant’s claims were either previously litigated or lacked
arguable merit. The PCRA court granted PCRA counsel’s motion to withdraw
on September 11, 2014. After conducting an independent review of the
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record, the PCRA court filed, on November 6, 2014, Pa.R.Crim.P. 907 notice
of its intent to dismiss Appellant’s petition. Appellant filed his response on
November 18, 2014. By order entered December 18, 2014, the PCRA court
denied Appellant’s PCRA petition. This timely pro se appeal followed. Both
Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
Within his pro se brief, Appellant raises the following issues:
A. Whether trial counsel provided ineffective assistance by
failing to conduct a thorough investigation of the
unidentified Jane Doe co-conspirator who could have
provided material and favorable testimony?
B. Whether trial counsel provided ineffective assistance in
failing to challenge whether the Commonwealth’s
investigation of Appellant was improperly protracted
resulting in sentencing manipulation?
C. Whether direct appeal counsel provided ineffective
assistance in failing to seek remand during the pendency
of [allocatur] in the Pennsylvania Supreme Court between
6/13/13 and 11/26/13 to challenge the legality of
Appellant’s sentence pursuant to [Alleyne v. United
States], 133 S.Ct. 2151 (2013)?
D. Whether PCRA counsel provided ineffective assistance
for failing to file an amended petition raising the ineffective
assistance of trial and appellate counsel?
Appellant’s Brief at 3.
This Court may only overturn a PCRA court’s dismissal of a PCRA
petition based on an error of law or an abuse of discretion.
Commonwealth v. Johnson, 841 A.2d 136, 140 (Pa. Super. 2003), appeal
denied, 858 A.2d 109 (Pa. 2004). “Great deference is granted to the
findings of the PCRA court, and these findings will not be disturbed unless
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they have no support in the certified record.” Commonwealth v. Daniels,
947 A.2d 795, 798 (Pa. Super. 2008), citing Commonwealth v. McClellan,
887 A.2d 291, 298 (Pa. Super. 2005), appeal denied, 897 A.2d 453 (Pa.
2006). Moreover, a PCRA court may decline to hold a hearing on the
petition if the PCRA court determines that the petitioner’s claim is patently
frivolous and is without a trace of support either in the record or from other
evidence. Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).
To be eligible for post-conviction relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from one or more of the enumerated errors or defects in 42
Pa.C.S.A. section 9543(a)(2), and that the issues he raises have not been
previously litigated. Commonwealth v. Carpenter, 725 A.2d 154, 160
(Pa. 1999). 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, or if the issue has been raised and decided
in a proceeding collaterally attacking the conviction or sentence.
Carpenter, 725 A.2d at 160; 42 Pa.C.S.A. § 9544(a)(2), (3). If a claim has
not been previously litigated, the petitioner must then prove that the issue
was not waived. Carpenter, 725 A.2d at 160. An issue will be deemed
waived under the PCRA “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.” 42 Pa.C.S.A. § 9544(b).
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In his first issue, Appellant asserts that trial counsel was ineffective for
failing to fully investigate and/or present the testimony of the unidentified
Jane Doe. The PCRA court, citing this Court’s conclusion that sufficient
evidence established Jane Doe as a co-conspirator, concluded that
Appellant’s present claim is previously litigated under the PCRA. See PCRA
Opinion, 2/23/15, at 6-7. Even were we to disagree, Appellant still would
not be entitled to relief.
In order to establish that trial counsel was ineffective for failing to
investigate and/or call a witness at trial, a PCRA petitioner must
demonstrate that:
(1) the witness existed; (2) the witness was available to
testify for the defense; (3) [trial] counsel knew of, or should
have known of, the existence of the witness; (4) the
witness was willing to testify for the defense; and (5) the
absence of the testimony of the witness was so prejudicial
as to have denied [the appellant] a fair trial.
Commonwealth v. Thomas, 44 A.3d 12, 23 (Pa. 2012) (citations omitted).
Appellant has not met this burden. Specifically, Appellant has failed to
proffer any evidence that Jane Doe would be willing to testify on Appellant’s
behalf, let alone provide favorable testimony. See Pa.R.Crim.P. 902(A)(15)
(explaining that “any request for an evidentiary hearing shall include a
signed certification at to each intended witness”).
Moreover, our review of the record supports the PCRA court’s
conclusion that Appellant could not establish prejudice:
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Appellant asserts that [Jane Doe’s] testimony would
have changed the outcome of the trial. This is not so.
There was more than sufficient independent evidence to
convict [Appellant] without this testimony, as the
testimony and exhibits showed that Appellant gave
Detective Mayer $40 in pre-recorded currency and the
detective received directly from Appellant five bags
containing a substance that tested positive for cocaine. As
there was no prejudice, we need not address the other
[ineffectiveness] prongs.
PCRA Court Opinion, 2/23/15, at 7.
Appellant next claims that trial counsel was ineffective in failing to
challenge whether the length of the Commonwealth’s investigation and
charging choices resulted in “sentencing manipulation.” Appellant’s Brief at
10. Our review of the record support’s the PCRA court’s conclusion that
Appellant did not raise this claim in his original PCRA petition, and did not
petition to amend his petition to include it once PCRA counsel was permitted
to withdraw. See id., at 6 n.2. Thus, Appellant’s claim is waived under the
PCRA, and we need not address it further. Carpenter, supra.
In his third claim, Appellant asserts that appellate counsel was
ineffective for failing to seek a remand of his case while his allowance of
appeal was pending so that he could raise an illegality of sentence claim
under Alleyne v. United States, 133 S.Ct. 2151 (2013). The PCRA court
found merit to this claim, and determined that PCRA counsel was ineffective
in this regard. The PCRA court explained:
This PCRA petition, Appellant’s first, was filed on
February 24, 2014, the day his judgment of sentence
became final. Thus, it appears that we may have
jurisdiction to review the legality of his sentence.
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The United States Supreme Court has held that “[w]hen
a decision of this Court results in a [‘]new rule,[’] that rule
applies to all criminal cases still pending on direct review.”
Schriro v. Summerlin, 542 U.S. 348, 351 (2004), citing
Griffin v. Kentucky, 479 U.S. 314, 328 (1987). We now
find Alleyne may be applied retroactively to Appellant, as
his case was still pending on direct review when Alleyne
was decided. The fact that this case is now on collateral
review may be of no moment.
We now turn to the merits of Appellant’s issue of
whether Section 18 Pa.C.S.A. §6317(b), (Drug Free School
Zones) is unconstitutional under Alleyne. The Superior
Court, in Commonwealth v. Bizzel, [107 A.3d 102 (Pa.
Super. 2014)], very recently stated:
“. . . the United States Supreme Court’s decision in
Alleyne rendered unconstitutional those portions of
Pennsylvania’s mandatory minimum sentencing statutes
that allow a judge to increase a defendant’s sentence
based upon a preponderance of the evidence standard as
opposed to utilizing the beyond a reasonable doubt
standard. Thus, Alleyne rendered 18 Pa.C.S. § 6317(b)
unconstitutional.”
Id. at [104].
Appellant raises a valid constitutional issue that applies
to his sentences.
***
PCRA counsel was ineffective for failing to raise this new
constitutional rule in an Amended PCRA petition. He was
appointed March 10, 2014, well after Alleyne was decided,
and it appears that this constitutional rule was applicable
to his client’s case.
Appellant preserved the issue of ineffectiveness of PCRA
counsel by raising it in his objection to our Notice of Intent
to Dismiss. See Commonwealth v. Rykard, 55 A.3d
1177 (Pa. Super. 2012) citing Commonwealth v. Pitts,
987 A.2d 875 (Pa. 2009).
Accordingly, we respectfully request that the Superior
Court vacate Appellant’s sentence and remand this matter
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for resentencing, without application of the mandatory
minimum sentences, as Appellant’s sentence was still
under direct review when Alleyne was decided. It
appears that this new constitutional rule concerning
mandatory minimum sentences applies to Appellant
retroactively. Further, §6317(b) has been rendered
unconstitutional in its entirety.
PCRA Court Opinion, 2/23/15, at 9-10 (emphasis omitted). See also
Commonwealth v. Hopkins, 2015 Pa. LEXIS 1282, ___ A.3d ___ (Pa.
2015) (affirming unconstitutionality of § 6317 in its entirety and concluding
that its provisions are non-severable).
Our review of the record supports the trial court’s conclusion that
PCRA counsel should have raised appellate counsel’s ineffectiveness for
failing to amend Appellant’s allocatur petition to include an Alleyne claim.
Appellant challenges PCRA counsel’s ineffectiveness in his fourth and final
issue. Although Appellant’s claim regarding PCRA counsel’s failure to raise
trial counsel’s ineffectiveness lacks merit, we agree with the PCRA court that
PCRA counsel should have raised a claim of appellate counsel’s
ineffectiveness.
In sum, we affirm the PCRA court’s dismissal of Appellant’s PCRA
petition to the extent he claimed ineffectiveness of trial counsel. However,
as requested by the PCRA Court, we grant Appellant collateral relief in the
form of vacating his judgment of sentence pursuant to Alleyne, and remand
for resentencing.
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Order affirmed in part. Judgment of sentence vacated. Case
remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2015
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