Com. v. Ellis, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JUSTIN ELLIS :
:
Appellant : No. 968 EDA 2020
Appeal from the PCRA Order Entered March 2, 2020
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006934-2015
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED MARCH 9, 2021
Justin Ellis, pro se, appeals from the order dismissing his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-9546. In his petition, Ellis presents three separate instances where he
claims his trial counsel was ineffective. In addition, Ellis contends that the
Commonwealth engaged in prosecutorial misconduct. We affirm.
Preliminarily, we note that most of the factual and procedural history of
Ellis’s case can be found in his direct appeal. See Commonwealth v. Ellis,
3146 EDA 2016, 2018 WL 4062300 (Pa. Super. Aug. 27, 2018). Briefly, after
being advised of a vehicle with a suspended registration, a police officer pulled
over Ellis’s vehicle operated which matched the description. Ellis had a
passenger with him at the time. The officer subsequently determined that both
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 Former Justice specially assigned to the Superior Court.
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the vehicle’s registration and Ellis’s driver’s license were suspended.
The officer informed Ellis that his vehicle would have to be towed due to
these violations as well as the fact that the vehicle was stopped in an active
construction zone. The officer allowed Ellis to extract personal items from the
vehicle. The officer, apparently aiding Ellis in this endeavor, opened the
vehicle’s glove box, took out a gold watch, and handed it to Ellis. When the
officer attempted to close the glove box, he was obstructed from doing so by
a piece of plastic affixed to the glove box’s back wall. The officer pulled down
this piece of plastic and uncovered two illicit firearms.
Upon finding those weapons, the officer detained Ellis. Ellis then
admitted that he had illegal contraband on his person, namely bags of crack
cocaine and heroin. A subsequent search warrant yielded a finding of glass
vials in the vehicle that were commonly used to contain drug mixtures.
After being charged with various offenses stemming from this incident,
Elis filed two separate motions to suppress evidence, claiming first that his
vehicle’s inventory search was unlawful. The second motion contended that
the inventory search was actually an unlawful investigatory search. The court
denied both motions.
Ultimately, after a bench trial, Ellis was convicted of one count of
possession with intent to deliver a controlled substance; two counts of
possession of a controlled substance; three counts of possession with intent
to use drug paraphernalia; and one count each of firearms not to be carried
without a license, possession of firearm with altered manufacturer's number,
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and receiving stolen property. See 35 P.S. § 780-113(a)(30), (16) & (32) and
18 Pa.C.S.A. §§ 6106(a)(1), 6110.2(a) & 3925(a), respectively. The court
then sentenced Ellis to 60 to 120 months of confinement followed by ten
months of probation.
In his direct appeal, Ellis challenged the trial court’s denial of his two
suppression motions. See Ellis, 2018 WL 4062300 at *1. We found no merit
to either contention that the police officer’s actions constituted an illegal
search and affirmed Ellis’s judgment of sentence. See id.Several months later, Ellis timely filed a pro se PCRA petition, his first.
The PCRA court appointed counsel. However, counsel subsequently filed a
request to withdraw and a Turner/Finley no-merit letter. See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The PCRA court then
issued a Pa.R.Crim.P. 907 notice of its intent to dismiss his petition without a
hearing. Upon receiving no response from Ellis, it formally dismissed his PCRA
petition and granted counsel’s request to withdraw. In this appeal, both the
PCRA court and Ellis have complied with their respective obligations under
Pa.R.A.P. 1925.
Ellis raises four issues for our review:
1. Did the PCRA court err when it concluded that Ellis failed to
meet his burden in demonstrating that trial counsel was
ineffective for failing to object to the admission of the
Commonwealth’s laboratory and ballistics reports?
2. Did the PCRA court err when it concluded that Ellis failed to
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meet his burden in demonstrating that trial counsel was
ineffective for failing to challenge the veracity of the search
warrant affidavit during his suppression hearings?
3. Did the PCRA court err when it concluded that Ellis failed to
meet his burden in demonstrating that trial counsel was
ineffective for not investigating the vehicle’s registration?
4. Did the Commonwealth engage in prosecutorial misconduct?
See Appellant’s Brief, at 4.
“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court's ruling is
supported by the record and free of legal error.” Commonwealth v. Presley,
193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). However, the PCRA
court's findings and evidence of record are viewed in a light most favorable to
the prevailing party. See Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.
2015).
Here, the PCRA court did not conduct a hearing on Ellis's petition. Our
precedent makes clear that a PCRA court may dismiss a petition without a
hearing if it concludes the petition raises no genuine issues of material fact
and does not otherwise arguably justify collateral relief. See Commonwealth
v. Cruz, 223 A.3d 274, 277 (Pa. Super. 2019).
Three of Ellis’s four claims assert that his trial counsel was ineffective
through inaction at various points prior to his trial. Our case law defining
ineffective assistance of counsel is well-settled. First, counsel is presumed to
have rendered effective assistance. See Commonwealth v. Rivera, 10 A.3d
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1276, 1279 (Pa. Super. 2010). Second, Pennsylvania courts are guided by the
test promulgated in Strickland v. Washington, 466 U.S. 668 (1984). See
Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa. 1987). That test, as
adopted by our courts, means that in order to demonstrate ineffectiveness,
Ellis must plead and prove by a preponderance of the evidence that: “(1) his
underlying claim is of arguable merit; (2) the particular course of conduct
pursued by counsel did not have some reasonable basis designed to effectuate
his interests; and, (3) but for counsel's ineffectiveness, there is a reasonable
probability that the outcome of the challenged proceeding would have been
different.” Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).
Third, a failure to satisfy any one prong of that three-part test renders
an ineffective assistance of counsel claim fatally defective. See
Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). As such, we, as
an appellate court, “need not analyze the prongs of an ineffectiveness claim
in any particular order.” Commonwealth v. Johnson, 139 A.3d 1257, 1272
(Pa. 2016). Fourth, “counsel cannot be deemed ineffective for failing to raise
a meritless claim.” Id.In his first ineffective assistance claim, Ellis suggests that his trial
counsel was ineffective for stipulating to two laboratory reports: a drug report
and a firearm report. Ellis maintains that, in accordance with Melendez-Diaz
v. Massachusetts, 557 U.S. 305 (2009), his Sixth Amendment right to cross-
examine the authors of those reports was violated.
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In Melendez-Diaz, the United States Supreme Court determined that
“affidavits reporting the results of forensic analysis which showed the material
seized by the police and connected to [that] defendant was cocaine” were
testimonial evidence. Id., at 307, 310. The Court went on to conclude that
the affiants of those affidavits were “witnesses” within the meaning of a
defendant’s right of confrontation under the Sixth Amendment. Id., at 313-
14, 324. As such, a defendant has an inherent right to question laboratory
analysts because they “provide[] testimony against [a defendant], proving
one fact necessary for ... conviction[.]” Id., at 313 (identifying, there, that
the reported “fact” was a positive test for cocaine) (emphasis in original).
That said, Melendez-Diaz also acknowledged that, given the effective
spotlight placed on the forensic analysts should they be asked to provide live
testimony, “[d]efense attorneys and their clients will often stipulate to the
nature of the substance in the ordinary case.” Id., at 328. The Supreme Court
then went on to quote an amicus brief for the proposition that “[g]enerally,
defendants do not object to the admission of drug certificates most likely
because there is no benefit to a defendant from such testimony.” Id. (citation
omitted).
While Ellis is correct that he had a right to cross-examine the weapons
and drug analysts responsible for generating reports used against him at trial,
Melendez-Diaz also plainly reinforces the idea that a defense attorney may,
and in fact often will, stipulate to those laboratory findings, which is precisely
what happened here. Furthermore, Ellis fails to demonstrate with any
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particularity how he was prejudiced by the admission of those laboratory
reports.
Without context, Ellis, in his brief, latches on to the testimony of a
testifying officer who indicated that “there was some confusion in a prior
report[.]” N.T., 7/6/16, at 81. As that officer was not the author of that report,
Ellis believes that this confusion should have provided the opportunity to test
the veracity of that report’s contents. However, that answer was merely
responsive to the question “[a]nd you know that there was no fentanyl found
in the ZzzQuil?” Id. A few moments prior to this cross-examination, that
officer affirmatively stated that he had reviewed the drug laboratory report
and confirmed that a large majority of the bags Ellis had on his person
contained crack cocaine. See id., at 76. Ellis does not refute the laboratory’s
affirmative finding of cocaine or its further affirmative finding of heroin.
Rather, he highlights that some of the items that were seized did not contain
narcotics.
Similarly, Ellis takes issue with the testimony surrounding the firearms
laboratory report. Ellis cites to testimony regarding the inconclusive nature of
the firearm DNA tests and the fact that anybody could have put those firearms
in Ellis’s vehicle or removed the serial numbers from one of the recovered
guns. See Appellant’s Brief, at 18-19; N.T., 7/6/16, at 69-71. However, Ellis
does not indicate, with any degree of certainty, what aspect of the firearms
report he is specifically contesting or how he has been prejudiced by its
admission. In fact, the record reflects a vigorous cross-examination of the
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officer that was probative of Ellis’s specific relationship with the uncovered
firearms. See, e.g., N.T., 7/6/16, at 69-71.
Simply put, other than merely claiming that trial counsel should have
objected to the reports and was therefore deficient, Ellis does not further
explain precisely what elements of either report required exploration on cross-
examination. Accordingly, we see no basis to conclude that the failure to
cross-examine the authors of the forensic reports prejudiced Ellis in any
discernable way. Ellis is due no relief on this issue.
In his second argument, Ellis contends that his trial counsel was
“ineffective for failing to challenge the veracity of the search warrant affidavit
during the suppression hearing.” Appellant’s Brief, at 25. However, Ellis has
not established that he suffered any prejudice from this failure.
The affidavit supporting the search warrant was drafted after the
discovery of firearms in the vehicle and drugs on Ellis himself. Ellis does not
directly refute either basis as providing a pathway to provide probable cause
to search the vehicle, but instead highlights inconsistencies between the
affiant officer’s testimony and facts as purported by Ellis. Even if every alleged
erroneous statement made by the officer was stricken from the search
warrant, we find that based on this record, there still would have been enough
probable cause for a valid search warrant.
More specifically, Ellis, without evidence, baldly suggests that the officer
made a false statement as to his rationale when he initially pulled over Ellis’s
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vehicle because according to Ellis, no one informed the officer that the
vehicle’s registration was suspended. See Appellant‘s Brief, at 27, 31.
Ellis does not challenge the nucleus of facts utilized to underpin the
search warrant, namely the drugs and firearms already known to the affiant
officer at that time. Moreover, Ellis fails to demonstrate how any of trial
counsel’s actions or inactions were deficient or that a refutation of any of the
alleged inaccurate statements made in the affidavit would have vitiated the
probable cause necessary for the search warrant. In addition, the validity of
the search warrant has already been addressed during the trial court’s
consideration of and ruling on his pretrial suppression motions. Accordingly,
Ellis’s underlying assertion does not have legal merit, and he furthermore has
not adequately demonstrated that prejudice ensued from the purported lies
contained within the affidavit of probable cause.
In his third claim, Ellis believes that his trial counsel was ineffective for
not investigating the vehicle’s registration. He claims that research “would
have demonstrated that the police officer committed p[er]jury when offering
his testimony[.]” Appellant’s Brief, at 36. Ellis avers that his registration was
valid for several months after he was arrested. While it may be true that the
registration as provided by the Pennsylvania Department of Transportation
may have had a documented expiration date beyond the date when he was
pulled over and subsequently arrested, such a document does not reflect
whether the registration is suspended. See, e.g., Greenfield v. Com., Dept.
Of Transp., 67 A.3d 198, 200-201 (Pa. Cmwlth. 2013) (explaining that an
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unexpired registration is automatically suspended for three months when
there is no insurance covering the vehicle).
Here, the arresting officer confirmed, through the National Crime
Information Center System, that Ellis’s vehicle registration was suspended
after the officer received Information that a vehicle with a description
matching Ellis’s was being operated with a suspended registration. See N.T.,
2/29/2016, at 10. Other than simply declaring that “there’s no ‘Penndot record
of a suspended tag,’” Appellant’s Brief, at 40, Ellis does not provide any
objective indicia to controvert the arresting officer’s testimony that his
vehicle’s registration was suspended at the time he was pulled over.
Furthermore, the gravamen of Ellis’s underlying assertion, both here and his
prior issue dealing with the validity of the initial stop, inventory search, and
underlying search warrant, have been definitively addressed throughout the
various suppression motions and hearings in this case. As such, Ellis has failed
to demonstrate that his underlying claim has merit, and he is due no relief.
Ellis’s fourth issue contends that the Commonwealth knowingly admitted
false information against him and therefore engaged in prosecutorial
misconduct. While his argument is largely vague and undefined, we glean that
Ellis is, again, taking issue with some of the facts that were used to obtain the
search warrant. Most, if not all, of Ellis’s specific claims in this section are
contained within other sections of his brief. Given that we have already
concluded that Ellis has not established any prejudice from the search warrant
application given the undisputed discovery of firearms in his vehicle prior to
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the application, we see no reason to conclude that he has suffered from any
kind of cumulative error. See Commonwealth v. Spotz, 18 A.3d 244, 321
(Pa. 2011) (establishing that, while “lack of merit” claims can never result in
a cumulative error claim cognizable under the PCRA, a cumulative prejudice
claim may have validity if there are multiple instances of trial counsel’s
ineffective representation).
Accordingly, for the reasons discussed above, we affirm the PCRA court's
dismissal of Ellis's PCRA petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/09/2021
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