Com. v. Kelsey, D. ( 2022 )

J-A25011-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID RUSSELL KELSEY :
:
Appellant : No. 99 WDA 2022
Appeal from the PCRA Order Entered December 23, 2021,
in the Court of Common Pleas of McKean County,
Criminal Division at No(s): CP-42-CR-0000414-2018.
BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: OCTOBER 6, 2022
David Russell Kelsey appeals from the order denying his petition for
relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A.
§§ 9541-46. Additionally, Kelsey’s court-appointed PCRA counsel has filed a
motion for leave to withdraw from representation, as well as an Anders brief.1
We grant counsel’s motion to withdraw and affirm the PCRA court’s order
denying Kelsey post-conviction relief.
____________________________________________
1 Anders v. California, 386 U.S. 738 (1967). Anders imposes stricter
requirements than those imposed when counsel seeks to withdraw during the
post-conviction process pursuant to Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). See Commonwealth v. Fusselman, 866 A.2d 1109, 1111
n.3 (Pa. Super. 2004). Thus, we will assess counsel’s assertion that the issues
Kelsey wished to raise have no merit under a Turner/Finley analysis.
J-A25011-22
On September 17, 2019, a jury convicted Kelsey of possession with
intent to deliver and criminal use of communication facility based on evidence
that Amber Stuckey, a police informant, purchased drugs from Kelsey after
communicating with him over Facebook messenger. Prior to the controlled
buy, Megan Mesler, an employee of McKean County’s Children and Youth
Services, conducted a strip search of Ms. Stuckey. Although subpoenaed by
the Commonwealth, Ms. Mesler did not testify at trial.
Ms. Stuckey, however, was the Commonwealth’s first witness. Upon
cross-examination, the following exchange occurred:
[BY TRIAL COUNSEL]:
Q Okay. Now, you had indicated that you were searched
prior to engaging [in] this alleged controlled buy, correct?
A Yes.
Q Okay. Were you cavity searched?
A Yes.
Q Okay. You were?
A I was fully undressed. She checked everything, I
had to squat, everything.
N.T., 9/16/19, at 56. Following Ms. Stuckey’s testimony, the Commonwealth
presented the testimony of various law enforcement officials who assisted in
conducting the controlled buy and subsequent investigation. The defense
presented no evidence.
As noted above, the jury convicted Kelsey of the above crimes. On
February 27, 2020, the trial court sentenced Kelsey to an aggregate term of
-2-
J-A25011-22
four to eight years of imprisonment. Kelsey filed a timely post-sentence
motion, which the trial court denied. He then appealed to this Court. On May
18, 2021, we rejected his challenge to the sufficiency of the evidence
supporting his convictions, and therefore affirmed his judgment of sentence.
Commonwealth v. Kelsey, 256 A.3d 39 (Pa. Super. 2021) (non-precedential
decision). Kelsey did not seek further review.
On August 27, 2021, Kelsey filed a pro se PCRA petition, and the PCRA
court appointed counsel. PCRA counsel filed an amended petition on
November 10, 2021. In this petition, Kelsey raised two ineffective assistance
of counsel claims. According to Kelsey, trial counsel was ineffective for failing
to: 1) call Ms. Mesler as a witness on his behalf or as a rebuttal witness; and
2) for failing to show him the video of the alleged controlled buy prior to trial.
The Commonwealth filed an answer to the amended PCRA petition on
December 10, 2021.
The PCRA court held an evidentiary hearing on December 17, 2021. At
the hearing, Kelsey called Ms. Mesler to explain why, in her summary of the
strip search she submitted to the authorities, she stated that no cavity search
was conducted. Kelsey then called trial counsel to testify regarding the second
ineffectiveness claim. However, after further consultation with PCRA counsel,
Kelsey withdrew the second claim. By order entered December 23, 2021, the
PCRA court denied Kelsey’s amended petition. This timely appeal followed.
Both Kelsey and the PCRA Court have complied with Pa.R.A.P. 1925.
-3-
J-A25011-22
As noted above, PCRA counsel filed and Anders brief and motion to
withdraw as counsel with this Court on July 5, 2022. We first address PCRA
counsel’s application to withdraw. When counsel decides to withdraw from
representing a PCRA petitioner, counsel must
review the case zealously. [PCRA] counsel must then
submit a “no-merit” letter to the trial court, or brief on
appeal to this Court, detailing the nature and extent of
counsel’s diligent review of the case, listing the issues which
[the] petitioner wants to have reviewed, explaining why and
how those issues lack merit, and requesting permission to
withdraw.
Counsel must also send to the petitioner: (1) a copy of
the “no-merit” letter/brief; (2) a copy of counsel’s petition
to withdraw; and (3) a statement advising [the] petitioner
of the right to proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that
. . . satisfy the technical demands of Turner/Finley, the
court—[PCRA] court or this Court—must then conduct its
own review of the merits of the case. If the court agrees
with counsel that the claims are without merit, the court will
permit counsel to withdraw and deny relief.
Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation
omitted).
Upon review, we conclude that PCRA counsel has substantially complied
with the Turner/Finley requirements as set forth above. See
Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)
(holding that substantial compliance with requirements to withdraw as counsel
will satisfy the Turner/Finley criteria). Thus, we will independently review
-4-
J-A25011-22
the claim Kelsey wished to raise on appeal, namely whether counsel was
ineffective for failing to call Ms. Mesler as a witness at trial.
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA
appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
Kelsey wished to challenge the PCRA court’s denial of his ineffectiveness
claim. To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must establish by a preponderance of the evidence
that counsel’s ineffectiveness so undermined the truth determining process
that no reliable adjudication of guilt or innocence could have taken place.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,
counsel’s performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing by the
petitioner.” Id. This requires the petitioner to demonstrate that: (1) the
underlying claim is of arguable merit; (2) counsel had no reasonable strategic
basis for his or her action or inaction; and (3) petitioner was prejudiced by
counsel's act or omission. Id. at 533. A finding of "prejudice" requires the
-5-
J-A25011-22
petitioner to show "that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different."
Id. A failure to satisfy any prong of the test for ineffectiveness will require
rejection of the claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.
2010).
Specifically, Kelsey claims that trial counsel was ineffective for failing to
call Ms. Mesler as a witness at trial to explain her report that she did not
conduct a cavity search. As we have observed:
When raising a claim of ineffectiveness for failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the [Strickland v. Washington,
466 U.S. 668 (1984)] test by establishing that: (1) the
witness existed; 2) the witness was available to testify for
the defense; (3) 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
defendant a fair trial[.]
Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013) (quoting
Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012)).
Kelsey cannot meet his burden of proof because, given Ms. Mesler’s
testimony at the PCRA hearing, he could not establish that the absence of her
trial testimony prejudiced him. At the PCRA hearing, Ms. Mesler confirmed
Ms. Stuckey’s trial testimony regarding the strip search. She further testified
that she reported no cavity search was conducted, based on her belief that
such a search “would be reaching up inside of like orifices that would need to
be checked.” N.T., 12/17/21, at 14.
-6-
J-A25011-22
At the conclusion of the hearing, the PCRA court concluded that, based
on Ms. Mesler’s testimony, Kelsey’s ineffectiveness claim lacked arguable
merit:
First you have to show there was an error, and that’s
questionable here. Because the Commonwealth chose not
to call [Ms.] Mesler, should the defense have done that and
clarified everything for everyone? Or should they have just
focused on that and said, they didn’t call her, we don’t know
what she’d say, this is what they said, what’s up with this
cavity search?
I would find that based on the total approach of the
defense, and I am finding, not I would, I am finding that
there was no error here, that to call [Ms.] Mesler and
present that would actually assist the Commonwealth. It
would clarify their case based on what she said here today,
that she has training, that here’s what she did, that she had
the females cough so that if there’s items in their vagina, it
will fall out. We’re talking about 20 pills here, that that’s
common procedure.
And so I find that [Kelsey] doesn’t get over even the first
part of the [ineffectiveness test]. Was there arguable merit
in not calling [Ms.] Mesler? That the defense could raise
more doubt by not calling her than calling her.
N.T., 12/17/21, at 42-43. In its Rule 1925(a) opinion, the PCRA court
confirmed that Ms. Mesler’s PCRA hearing testimony “demonstrated that her
search of [Ms. Stuckey] was extremely thorough. This testimony would have
only strengthened the Commonwealth’s case.” PCRA Court Opinion, 2/16/22,
at unnumbered 2.
Our review of the record supports the conclusion that not calling Ms.
Mesler assisted defense counsel’s trial strategy. Indeed, during his closing
argument, counsel challenged the Commonwealth’s failure to call her as a
-7-
J-A25011-22
witness, suggested that she was not qualified to conduct the strip search, and
questioned the thoroughness of the search. See N.T., 9/17/21, at 6-8. Had
trial counsel called Ms. Mesler, she would have testified, consistent with her
PCRA hearing testimony, that she had training to conduct the search and
would have explained the thoroughness of the procedure. As such, counsel’s
arguments were stronger without Ms. Mesler’s testimony.
In sum, because a review of the record supports PCRA counsel’s
assessment of Kelsey’s ineffectiveness claim as frivolous, the PCRA court
correctly denied his PCRA petition. We therefore affirm the order denying
Kelsey post-conviction relief.
Motion to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2022
-8-