Com. v. Harrison, E. ( 2016 )

J-S46041-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERIC K. HARRISON, :
:
Appellant : No. 3005 EDA 2015
Appeal from the PCRA Order September 11, 2015,
in the Court of Common Pleas of Monroe County,
Criminal Division, at No(s): CP-45-CR-0001542-2011
BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 10, 2016
Eric K. Harrison (Appellant) appeals from the order which denied his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. Upon review, we affirm.
A prior panel of this Court set forth in detail the background underlying
this matter and, thus, we need not repeat it at length herein. See
Commonwealth v. Harrison, 120 A.3d 393 (Pa. Super. 2015). Briefly,
Appellant was convicted following a jury trial of criminal conspiracy,
possession of drug paraphernalia, and three counts of possession of a
controlled substance based upon drugs and related contraband that were
found during a search of a vehicle in which Appellant was a passenger. He
was sentenced to an aggregate term of three and one half to seven years of
*Retired Senior Judge assigned to the Superior Court.
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imprisonment. Ultimately, this Court affirmed his judgment of sentence on
February 26, 2015. Id.On April 9, 2015, Appellant pro se filed a PCRA petition.1 Counsel was
appointed and a hearing was scheduled on the petition. 2 The
Commonwealth filed an answer in opposition to the petition, and, following
the hearing, the PCRA court denied the petition. This appeal followed.
On appeal, Appellant raises the following issues for our consideration:
I. Whether the [PCRA] court erred by finding that trial
counsel’s failure to convey pre-trial plea offers to Appellant
did not amount to ineffectiveness of counsel.
II. Whether trial counsel’s failure to raise a spoliation of
evidence argument at trial, failure to request a jury
instruction on spoliation of evidence, and failure to raise
the issue on appeal amounted to ineffective assistance of
counsel.
Appellant’s Brief at 4 (unnecessary capitalization omitted).
1
Appellant initially pro se filed a PCRA petition on October 16, 2014, which
the PCRA court dismissed without prejudice as having been prematurely
filed, as Appellant’s direct appeal was pending. See Commonwealth v.
Kubis, 808 A.2d 196, 198 n.4 (Pa. Super. 2002) (“The PCRA provides
petitioners with a means of collateral review, but has no applicability until
the judgment of sentence becomes final.”).
2
Appellant’s counsel did not file an amended petition on Appellant’s behalf,
despite requesting and receiving an extension of time to do so. At the PCRA
hearing, counsel indicated that upon review of the pro se filing, it was his
position that all of the issues raised therein were “of arguable merit at least”
and that there were “no additional issues in looking at [Appellant’s] file that
jumped out to [him].” N.T., 6/30/2015, at 4-5. Counsel confirmed that he
and Appellant were satisfied that all issues were contained in the pro se
petition and that they “would like to go forward at [that] time with those
issues.” Id.-2-
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On appeal from the denial of PCRA relief, our standard of review
calls for us to determine whether the ruling of the PCRA court is
supported by the record and free of legal error. The PCRA court’s
findings will not be disturbed unless there is no support for the
findings in the certified record. The PCRA court’s factual
determinations are entitled to deference, but its legal
determinations are subject to our plenary review.
Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (internal
citations and quotation marks omitted). “We review the PCRA court’s
findings of fact in the light most favorable to the Commonwealth as verdict
winner to determine if they are supported by the record.” Commonwealth
v. Freeland, 106 A.3d 768, 777 (Pa. Super. 2014). Moreover, “[i]t is well-
settled that a PCRA court’s credibility determinations are binding upon an
appellate court so long as they are supported by the record.”
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).
Appellant’s claims are based upon the alleged ineffective assistance of
his counsel.
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the [i]neffective 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. …
It is well-established that counsel is presumed to have
provided effective representation unless the PCRA
petitioner pleads and proves all of the following: (1) the
underlying legal claim is of arguable merit; (2) counsel’s
action or inaction lacked any objectively reasonable basis
designed to effectuate his client’s interest; and (3)
prejudice, to the effect that there was a reasonable
probability of a different outcome if not for counsel’s error.
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The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(internal citations and quotation marks omitted).
In his first issue, Appellant argues that his trial counsel was ineffective
because, as demonstrated by various letters and an email pertaining to plea
negotiations leading up to trial, she never told him that the Commonwealth’s
offer to plead guilty to conspiracy was still “on the table past the suppression
hearing” held in this case. Appellant’s Brief at 8.
We address Appellant’s argument mindful of the following.
“Defendants have a Sixth Amendment right to counsel, a right that extends
to the plea-bargaining process. During plea negotiations defendants are
entitled to the effective assistance of competent counsel.” Lafler v. Cooper,
132 S. Ct. 1376, 1384 (2012) (citations and internal quotation marks
omitted). “[A]s a general rule, defense counsel has the duty to communicate
formal offers from the prosecution to accept a plea on terms and conditions
that may be favorable to the accused.” Missouri v. Frye, 132 S. Ct. 1399,
1408 (2012).
In order to show that trial counsel was ineffective for failing to advise
him of a plea offer, Appellant must establish that “(1) an offer for a plea was
made; (2) trial counsel failed to inform him of such offer; (3) trial counsel
had no reasonable basis for failing to inform him of the plea offer; and (4)
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he was prejudiced thereby.” Commonwealth v. Chazin, 873 A.2d 732,
735 (Pa. Super. 2005) (citation omitted).
To show prejudice from ineffective assistance of counsel where a
plea offer has lapsed or been rejected because of counsel’s
deficient performance, defendants must demonstrate a
reasonable probability they would have accepted the earlier plea
offer had they been afforded effective assistance of counsel.
Defendants must also demonstrate a reasonable probability the
plea would have been entered without the prosecution canceling
it or the trial court refusing to accept it, if they had the authority
to exercise that discretion under state law. To establish
prejudice in this instance, it is necessary to show a reasonable
probability that the end result of the criminal process would have
been more favorable by reason of a plea to a lesser charge or a
sentence of less prison time.
Frye, 132 S. Ct. at 1409.
Herein, the PCRA court concluded that “[w]hile it is clear there were
multiple plea offers made, having had the opportunity to view the witnesses,
[trial counsel] testified credibly that she presented all plea offers to
[Appellant] but because [Appellant] would not plead to a felony, [Appellant]
rejected all offers.” PCRA Court Opinion, 9/11/2015, at 5. The testimony
offered by trial counsel at the PCRA hearing indicates that, at the least, she
informed Appellant prior to the suppression hearing that an offer to plead to
conspiracy to commit PWID was tendered and that after the hearing an offer
to plead to PWID was available. See generally N.T., 6/30/2015, at 7-27,
35-36, 38-40; see also Defendant’s Exhibit 2. Counsel testified that
Appellant was only willing to plead to the paraphernalia charge, “never
wanted to plead throughout all of [their] discussions,” was “adamant that he
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wanted a trial,” and did not want to plead to a felony because he was on
state parole at the time the incident occurred. Id. at 8, 11, 16-18, 20, 35-
36, 40. Assuming arguendo that counsel did not advise Appellant that the
offer to plead to conspiracy was still available after the suppression hearing,
in light of this testimony, which the trial court credited and which we view in
the light most favorable to the Commonwealth, Appellant has failed to
demonstrate a reasonable probability he would have accepted the offer to
plead to conspiracy even if it were still available and conveyed to him after
the suppression hearing.3 Thus, his ineffectiveness claim fails.
Appellant’s second issue centers on the spoliation of two pieces of
evidence that Appellant contends should have been argued at trial, included
in jury instructions, and raised on appeal: (1) a mobile video recording of
the incident in question, which “was destroyed solely through the negligence
of the State Police/Commonwealth,” and (2) a canister containing drugs
found in the vehicle, from which the police were unable to obtain fingerprints
because the police mishandled the evidence. Appellant’s Brief at 9-11.
Upon review, we again conclude that Appellant has failed to
demonstrate prejudice.
To satisfy the prejudice prong, it must be demonstrated that,
absent counsel’s conduct, there is a reasonable probability that
the outcome of the proceedings would have been different. If it
has not been demonstrated that counsel’s act or omission
3
In reaching this conclusion, we further note that Appellant includes no
argument whatsoever in his brief as to the prejudice prong of the
ineffectiveness test, let alone the specific requirement discussed above.
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adversely affected the outcome of the proceedings, the claim
may be dismissed on that basis alone, and the court need not
first decide whether the first and second prongs have been met.
Commonwealth v. Perez, 103 A.3d 344, 348 (Pa. Super. 2014) (citation
omitted).
In an effort to establish prejudice, Appellant argues that had counsel
requested a spoliation charge with respect to the evidence above, “the court
would have directed the jury that they could infer from the destruction of the
evidence that the evidence would have been favorable to Appellant,” which
“would have been powerful information to provide to the jury.” Appellant’s
Brief at 11. Appellant also argues that “it should be clear that counsel’s
omission worked to prejudice Appellant’s interest, i.e., had an adverse effect
upon the outcome of the proceedings.” Id. With respect to the lack of
fingerprint analysis in particular, Appellant further argues that
[g]iven the fact that trial counsel’s stated defense was that
Appellant [did not] know about the existence of the drugs, surely
the Commonwealth’s destruction of evidence which would have
tended to shed light on whether Appellant had ever handled the
very canister which housed the drugs in question would have
been powerful evidence tending to establish his innocence. ...
Appellant’s fingerprints, or lack thereof, on the very item in the
car which housed the contraband is crucial to the issue of
whether he had knowledge of the existence of the contraband.
Appellant’s Brief at 10-11.
Appellant’s bald claims amount to nothing more than mere speculation
as to the prejudice Appellant allegedly suffered and, thus, are insufficient to
meet his burden under the ineffectiveness test. See Commonwealth v.
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Charleston, 94 A.3d 1012, 1026 (Pa. Super. 2014) (“Unsupported
speculation does not establish reasonable probability.”); Commonwealth v.
Pursell, 724 A.2d 293, 311 (Pa. 1999) (“Claims of ineffective assistance of
counsel that are based on speculation and conjecture do not adequately
establish the degree of prejudice necessary.”). Moreover, with respect to
Appellant’s argument about the lack of fingerprint analysis in particular, we
fail to see how he was prejudiced given that (1) the case against Appellant
was one of constructive possession4 and (2) the evidence is not exculpatory
per se. See Commonwealth v. Wright, 388 A.2d 1084, 1086 (Pa. Super.
1978) (“[T]he absence of appellant’s fingerprints is not exculpatory per se
and might be explained [by] any one of many reasons consistent with his
guilt.”). For these reasons, his claim fails.
Appellant has failed to establish that his issues entitle him to relief.
Accordingly, we affirm the order of the PCRA court.
Order affirmed.
4
Where “[a]ctual possession is proven by showing ... [that the] controlled
substance [was] found on the [defendant’s] person,” constructive possession
is proven by demonstrating a defendant’s “ability to exercise a conscious
dominion over the illegal substance: the power to control the contraband
and the intent to exercise that control. … It is a judicially created doctrine ...
[that] enables law enforcement officials to prosecute individuals in situations
where the inference of possession is strong, yet actual possession at the
time of arrest cannot be shown.” Commonwealth v. Vargas, 108 A.3d
858, 868 (Pa. Super. 2014) (citations and internal quotation marks omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2016
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