Com. v. Powell, B. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BREON POWELL,
Appellant No. 1524 EDA 2019
Appeal from the PCRA Order April 26, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No: CP-09-CR-0003591-2012
BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J. FILED APRIL 29, 2020
Appellant, Breon Powell, who is serving a sentence of life imprisonment
for first-degree murder,1 appeals from an order denying him relief under the
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46. We affirm.
On December 28, 2011, Appellant, along with co-conspirators Jermaine
Jackson, Kazir Gist, Danasia Bakr and Tatyana Henderson, drove from
Trenton, New Jersey to Levittown, Bucks County to rob Danny DeGennaro of
money Jackson believed DeGennaro owed him. Jackson, the ringleader,
assigned each participant’s role in the crime: Bakr was the get-away driver;
Henderson was the lookout; and Appellant and Gist were to enter DeGennaro’s
house with Jackson and hold DeGennaro up at gunpoint.
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1 18 Pa.C.S.A. § 2502.
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When the co-conspirators arrived in Levittown, Jackson directed Bakr to
drive to the back of DeGennaro’s house, where he saw a car for sale. Spotting
a phone number on the sign, Jackson told Henderson to call the number,
thinking it belonged to DeGennaro. The number in fact belonged to
DeGennaro’s neighbor, Nick Wilson, who parked the car on DeGennaro’s
property for better visibility. Wilson answered, and Henderson feigned
interest in buying the car and asked Wilson to come outside to let her test
drive it. Wilson said it was too late at night and that she should come back
tomorrow.
Before entering DeGennaro’s house, Jackson reminded Appellant and
Gist that their role was to ensure Jackson got his money, and that if
DeGennaro refused, Appellant and Gist would hold him at gunpoint. As
Appellant, Jackson, and Gist made their way toward DeGennaro’s house,
Jackson called Henderson on her cellphone. Henderson first heard dead air,
and Jackson then said “Go ahead.” Henderson hung up.
A few minutes later, Henderson and Bakr heard one loud gunshot then
a quieter shot. Bakr realized that something had happened and started to
drive away, but Appellant and Gist stopped them before they left and got in
the car. Appellant and Gist both wore gloves, and Gist had a stocking pulled
over his face. Appellant was “freaking out” and yelling at Bakr to get him out
of Pennsylvania. Appellant said to Gist, “I had to do it. I had to do it. He was
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charging at me, coming for me.” Gist responded, “I shot him too,” and
complained that he had a burn on his hand.
Appellant and the others met up with Jackson back in Trenton later that
night. Jackson yelled at Appellant, asking, “Why did you do it? Why did you
shoot him? That man didn’t deserve that. You could have just knocked him
out. He looked like he was drunk.” Appellant responded that he had to do it,
and he exited Bakr’s car and removed his bag from Bakr’s trunk. He removed
a shotgun from his pant leg, “shortened it” by breaking it down, placed the
gun inside the bag and walked away.
An autopsy revealed that DeGennaro was killed by a shotgun wound to
the chest that damaged his ribs, heart, lung, diaphragm and liver. Eighty-six
shotgun pellets were recovered from his body for ballistics testing. The
spacing of pellets and the markings by his wound indicated that the shot was
from approximately three feet away. Ballistics evidence recovered from his
house demonstrated that the murder weapon was a .12 gauge caliber
shotgun.
During the police investigation, Bristol Township Detective Gregory
Beidler learned that the neighbor, Wilson, received a call around the time of
the murder regarding his car for sale. Through phone records, police identified
the caller as Henderson and placed her near DeGennaro’s home at the time of
the murder. Henderson’s phone records linked her to Bakr and likewise placed
Bakr near the crime scene around the time of the murder. After obtaining a
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search warrant for the content of Bakr’s text messages for December 28 and
29, 2011, police found messages between Henderson and Bakr referencing
“Jermaine,” whom they determined was Jackson through phone records. The
police requested a subpoena (but not a search warrant) for a phone number
that called Jackson’s phone four times on the night of the murder.
On February 13, 2012, the police obtained an order approving a
hardwire for the cell phones belonging to Bakr and Jackson. On February 15,
2012, the Commonwealth intercepted a call from Jackson’s phone to the
Ready, Aim, Fire (“RAF”), an indoor shooting range and gun dealer in Bristol
Township. That evening, Detective Jack Slattery posed as an employee behind
the counter in the showroom. Detective Beidler and Detective Tim Perkins
stayed in a car in RAF’s parking lot as backup for Detective Slattery. Detective
Slattery saw Jackson, Appellant, Gist, and Devon Clark enter the RAF
showroom together, supply identification to the staff, and complete liability
forms together. The four men huddled around two targets that both had
holes, and Appellant used a phone while standing in the showroom. All four
departed together in a Chevy Lumina.
On February 28 and March 1, 2012, Detective Beidler spoke several
times with Henderson by calling her phone. On March 2, 2012, Detective
Beidler and Detective Perkins interviewed Henderson. On the same day, after
interviewing Henderson, the detectives interviewed Bakr’s mother. On March
6, 2012, the two detectives accompanied Falls Township Police in arresting
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Henderson for a retail theft charge. On March 8, 2012, Bakr gave a statement
to Detective Beidler, and that evening Bakr wore a consensual body wire and
met with Jackson. On March 12, 2012, Bakr was charged with criminal
homicide, conspiracy, robbery, and burglary.
On March 12, 2012, the police received records for the number that
called Jackson four times on the night of the murder. The records showed
that Appellant was the account holder for this number.
Through these phone records and surveillance, police connected
Henderson, Bakr, Jackson, Gist and Appellant. The records showed numerous
calls and texts between Jackson and each co-conspirator in the hours leading
up to DeGennaro’s murder, and after. Cell tower information for each of the
five revealed them traveling from Trenton to Levittown, where the murder
occurred, and back to Trenton on December 28, 2011, and showed that all
were in the area of the murder around the time of the murder.
On March 29, 2012, the police executed search warrants and recovered
a .9 mm semi–automatic handgun in Gist’s home and a black gym bag
containing two .12 gauge shotgun rounds in Appellant’s home. Police
recovered a .357 caliber revolver inside Appellant’s closet and a Trentonian
newspaper opened to the article on Bakr’s arrest.
At trial, Appellant interposed an alibi defense, contending that he had
been at work at Ready-Pac Produce in New Jersey during the murder. The
testimony of Bakr and Henderson, as well as the call records showing
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Appellant exchanging calls with Jackson around the time of murder via cell
towers near DeGennaro’s residence, contradicted this claim. Appellant’s
cellphone did not acquire the cell tower near Ready-Pac again until 10:53
p.m., almost an hour after the murder.
On October 7, 2013, jury found Appellant guilty of first degree murder,
robbery, conspiracy to commit robbery, burglary, conspiracy to commit
burglary, and possession of an instrument of crime. He was sentenced to life
imprisonment. On April 3, 2014, Appellant filed a timely notice of appeal to
this Court. On direct appeal, this Court affirmed his judgment of sentence in
a published opinion. Commonwealth v. Powell, 171 A.3d 294 (Pa. Super.
2017). On April 3, 2018, our Supreme Court denied Appellant’s petition for
allowance of appeal. Appellant did not appeal to the United States Supreme
Court.
On September 21, 2018, Appellant filed a timely PCRA petition.
Subsequently, through counsel, Appellant filed an amended PCRA petition
alleging ineffective assistance of counsel. On April 26, 2019, following an
evidentiary hearing, the PCRA court denied Appellant’s petition. Appellant
filed a timely appeal to this Court, and both Appellant and the PCRA court
complied with Pa.R.A.P. 1925.
Appellant raises two issues in this appeal:
1. Did the Trial Court err in denying [Appellant]’s [PCRA] Petition
as to the challenge to the effectiveness of Trial Counsel[?]
Specifically, Trial Counsel Robin Lord was ineffective for failing to
properly conduct the cross-examination of a trial witness so as to
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maintain the Court’s pre-trial Order that precluded the
introduction of Prior Bad Acts Testimony by that witness. Trial
Counsel Lord’s cross-examination was overly aggressive and
opened the door for the introduction of extremely damaging
testimony against [Appellant] despite the Trial Court’s repeated
warnings that the cross-examination was going to lead to such
evidence becoming admissible where it had not been previously
permitted. The preclusion of such evidence was anticipated by
counsel to be prejudicial and Trial Counsel acted unreasonably by
ignoring the warnings given to her by the Court during her cross-
examination of [] Henderson to the detriment of [Appellant]’s
legal position.
2. Did the Trial Court err in failing to find that [Appellant]’s phone
was tracked without the use of a warrant[?] Specifically, whether
the searching of historical cell site data requires a warrant under
the Fourth Amendment to the United States Constitution and
under Art. I, § 8 of the Pennsylvania Constitution. [Appellant]’s
location at diverse times was unlawfully tracked by law
enforcement without a warrant and the tracking information was
then used by law enforcement for further investigation. This
statement of error asks whether, under the “fruit of the poisonous
tree” doctrine, any and all information gained without a warrant
should be deemed inadmissible and a new trial granted in this
matter that excludes the use of such evidence against [Appellant.]
Appellant’s Brief at 6-7.
To obtain relief under the PCRA, the petitioner must plead and prove:
(i) A violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could
have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances
make it likely that the inducement caused the petitioner to plead
guilty and the petitioner is innocent.
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(iv) The improper obstruction by government officials of the
petitioner’s right of appeal where a meritorious appealable issue
existed and was properly preserved in the trial court.
(v) Deleted.
(vi) The 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.
(vii) The imposition of a sentence greater than the lawful
maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 Pa.C.S.A. § 9543(a)(2).
In his first issue, Appellant argues that trial counsel was ineffective for
opening the door for Henderson’s testimony that Appellant participated in a
previous robbery with Henderson, Bakr and Jackson. No relief is due because
Appellant cannot demonstrate prejudice.
We presume counsel’s effectiveness, and Appellant bears the burden of
proving otherwise. Commonwealth v. Urwin, 219 A.3d 167, 172 (Pa.
Super. 2019). To establish ineffectiveness of counsel, a PCRA petitioner must
plead and prove: (1) his underlying legal claim has arguable merit; (2)
counsel’s actions lacked any reasonable basis; and (3) counsel’s actions
prejudiced him. Id. Failure to satisfy any of these three prongs requires
dismissal of the claim. Id.
A PCRA petitioner establishes prejudice by demonstrating that
“counsel’s chosen course of action had an adverse effect on the outcome of
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the proceedings.” Commonwealth v. Chambers, 807 A.2d 872, 883 (Pa.
2002). “The defendant must 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 reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. “[A] criminal defendant
alleging prejudice must show that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id.
Appellant insisted during trial proceedings that he was not involved in
the incident leading to DeGennaro’s death. Prior to trial, the Commonwealth
filed a motion seeking to introduce evidence that, before DeGennaro’s murder,
Appellant had participated in a robbery with his co-conspirators, Henderson,
Bakr and Jackson. The Commonwealth maintained that evidence of a prior
drug dealer robbery, for which the conspirators were not caught, motivated
their similar robbery of DeGennaro a short time later and established
Appellant’s participation in both, similar crimes. The trial court stated during
a pretrial hearing that it was not inclined to allow this evidence unless the
defense opened the door.
During trial, both Henderson and Bakr testified that Appellant
participated in DeGennaro’s robbery and murder. When Henderson testified,
Appellant’s counsel cross-examined her by emphasizing her relationships with
Jackson, Bakr, and a third individual not implicated in the murder, Clark.
When counsel explored Appellant’s relationship with Henderson, it was
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generally to question whether any relationship existed, or whether she had
him confused with another person, Breon Holloway.
The Commonwealth claimed that counsel’s cross-examination of
Henderson opened the door for testimony regarding Appellant’s participation
in the prior robbery. The trial court agreed for the reason that Appellant “tried
to lead the jury to believe that [] Henderson had no relationship with
[Appellant.]” Trial Court Opinion, 1/22/16, at 63. Henderson’s testimony was
permissible to “correct the untrue impression that was created on the record
that [] Henderson and [Appellant] had no relationship and that [] Bakr, []
Henderson, [] Jackson and/or [] Clark were the only ones who committed all
the robberies.” Id. at 61. The court limited the evidence to the date of the
robbery, the people involved, and where it happened. In addition, the court
instructed the jury:
You also have heard testimony in this case about an alleged prior
robbery at Orchard View Apartments. If you believe the testimony
of Tatyana Henderson in that regard, you may not consider the
testimony as evidence of [Appellant’s] guilt in this case. Rather,
I instruct you that this evidence was offered solely to show the
relationships between the individuals who have been identified—
between and among the individuals identified in this case. You
have not been given any details of this alleged robbery, nor should
you draw any inferences regarding the circumstances of the
robbery. Indeed, you must not consider it as evidence of guilt or
for any other purpose other than the one I have just given you.
If you do not believe Tatyana’s testimony in this regard, you must
disregard this testimony and any implication regarding the
relationships of the parties.
N.T. 10/4/13 (P.M. Session), at 31–32.
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On direct appeal, this Court held that the trial court acted within its
discretion by permitting Henderson’s testimony concerning the prior robbery:
This testimony elicited by the Commonwealth was probative of the
relationship between the co-conspirators, as it tended to show
that Appellant and [] Henderson did know each other, and that
she had not confused him with Breon Holloway. It was a
permissible refutation of the impression created by Appellant that
[] Henderson had no relationship with him . . . Furthermore, the
trial court minimized the prejudicial impact of this testimony by
limiting [] Henderson’s testimony to the people involved, the time,
and the place of its occurrence. Thus, we do not find that this
testimony would “inflame the jury’s sensibilities with references to
matters other than the legal proposition relevant to the case.”
Commonwealth v. Ivy, 146 A.3d 241, 253 (Pa. Super. 2016)
(citation omitted).
Moreover, the trial court . . . instructed the jury that the testimony
was only to be used to consider [] Henderson’s relationship with
Appellant, and nothing more . . . Any prejudice caused by []
Henderson’s testimony was alleviated by the court’s instruction.
Powell, 171 A.3d at 301.
Appellant now contends that trial counsel was ineffective for opening the
door for Henderson’s testimony concerning Appellant’s participation in the
prior robbery. He argues that trial counsel cross-examined Henderson too
aggressively, and by doing so, enabled the Commonwealth to inject evidence
that presented him as a bad person to the jury.
This Court already has determined on direct appeal, however, that the
testimony sought by defense counsel was not prejudicial to Appellant because
it was not the type of evidence that would inflame the jury’s sensibilities. In
addition, the trial court alleviated any conceivable prejudice by instructing the
jury to use the testimony solely to consider the nature of Henderson’s
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relationship with Appellant. The claim, therefore, lacks merit. Absent merit,
Appellant’s claim of ineffectiveness fails. Urwin, 219 A.3d at 172 (claim of
ineffective assistance fails unless petitioner satisfies all three prongs of
ineffectiveness test).
In his second issue, Appellant argues that the police violated his
constitutional rights under the federal and Pennsylvania constitutions by
obtaining his and his co-conspirators’ historical cellphone data without
warrants. He bases this argument on two decisions issued by the United
States Supreme Court and Pennsylvania Supreme Court while his case was on
direct appeal: (1) Carpenter v. United States, — U.S. —, 138 S. Ct. 2206
(2018), and (2) Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018). Once
again, no relief is due.
By obtaining call detail records for the various co-conspirators in this
case, police were able to determine that each had traveled from Trenton to
Levittown, where the murder occurred, and back again on December 28,
2011, and that all were in the area of the murder around the time of the
murder. In 2012, the statute governing governmental access to stored wire
and electronic communications and transactional records permitted a provider
of electronic communication service to disclose “a record or other information
pertaining to a subscriber to or customer of service,” other than contents of
communications, to law enforcement officers when they used one of several
means, including a grand jury subpoena. 18 Pa.C.S.A. § 5743(c)(2). The
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police obtained many cellphone records in this case through grand jury
subpoenas, except for Appellant’s text messages, which they obtained via
search warrant.
On June 22, 2018, while Appellant’s case was still on direct appeal, 2 the
United States Supreme Court held, for the first time, that law enforcement
officials violated an individual defendant’s Fourth Amendment rights by
obtaining his historical cell site location information from a third party carrier
without first obtaining a search warrant supported by probable cause.
Carpenter, 138 S. Ct. at 2216 (applying Fourth Amendment to a “new
phenomenon: the ability to chronicle a person’s past movements through the
record of his cell phone signals”).3 Similarly, in Fulton our Supreme Court
held that accessing information from a cellphone without a warrant is
unconstitutional under United States Supreme Court precedent. According to
Appellant, since Carpenter and Fulton were issued during his direct appeal,
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2 The Pennsylvania Supreme Court denied Appellant’s petition for allowance
of appeal on April 3, 2018, two and a half months earlier. Nevertheless,
Appellant had three months to file a petition for certiorari with the United
States Supreme Court, or until July 2, 2018. U.S. Sup. Ct. R. 13(1). Thus,
ten days remained in Appellant’s direct appeal period on June 22, 2018.
3 The Supreme Court emphasized that its decision was “narrow” and indicated
that it was not expressing a view on real-time CSLI or “tower dumps” (“a
download of information on all the devices that connected to a particular cell
site during a particular interval”). Id. at 2220. The Court added that its
decision was not calling into question “conventional surveillance techniques
and tools, such as security cameras . . . or business records that might
incidentally reveal location information.” Id.
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they require suppression of historical location information obtained from his
cellphone. Appellant is not entitled to relief.
Section 9543(a)(3) of the PCRA, 42 Pa.C.S.A. § 9543(a)(3), provides
that a petitioner is not eligible for relief if the allegation of error has been
previously litigated or waived. Section 9544(b) of the PCRA, 42 Pa.C.S.A.
§ 9544(b), provides that an issue is waived if it could have been raised but
was not, before trial, at trial, during unitary review, on appeal or in another
state post-conviction proceeding. The issue Appellant attempts to raise is a
suppression issue that had to have been raised pre-trial. Pa.R.Crim.P. 578,
581. Appellant’s failure to do so precludes him from seeking relief during
collateral review. Although his case was pending on direct appeal when both
Carpenter and Fulton were issued, “in order for a new rule to apply to a case
pending on direct appeal, the issue must be preserved at all stages of
adjudication, including at trial and on direct appeal.” Commonwealth v.
Hays, 218 A.3d 1260, 1267 (Pa. 2019). Our review of the record
demonstrates that Appellant did not raise this argument during trial
proceedings, in this Court on direct appeal, or in his petition for allowance of
appeal to the Pennsylvania Supreme Court. Appellant’s failure to preserve
this issue in accordance with Hays bars him from raising it now.
Nor do the decisions in Carpenter and Fulton entitle Appellant to relief
based on ineffective assistance of counsel. Before both the PCRA court and
this Court, Appellant did not couch this issue in terms of ineffective assistance.
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If this was his intent, he waived any argument that Carpenter and Fulton
gave rise to an ineffective assistance claim. Commonwealth v. Mason, 130
A.3d 601, 639-40 (Pa. 2015) (capital murder defendant failed to preserve
PCRA claim that he was entitled to new trial on basis that Commonwealth
exercised its peremptory challenges in gender-discriminatory manner, and
that prior counsel were ineffective for failing to litigate issue, by failing to
include claim in PCRA petition). Even if we construed Appellant’s argument
as a claim of ineffective assistance of counsel, relief still would be unavailable.
As stated above, Carpenter and Fulton were decided after trial, Appellant’s
direct appeal to this Court, and his unsuccessful petition for allowance of
appeal to our Supreme Court. “It is not ineffective assistance for counsel to
fail to predict (and hence comply with) future changes in governing law.
Commonwealth v. Brown, 196 A.3d 130, 178 (Pa. 2018) (citing
Commonwealth v. Mason, 130 A.3d 601, 650 (Pa. 2017)).
For these reasons, the PCRA court properly denied relief to Appellant.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2020
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