Com. v. Morgan, J. ( 2015 )

J-S62036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERMAINE F. MORGAN
Appellant No. 711 WDA 2015
Appeal from the PCRA Order April 21, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001117-2008;
CP-65-CR-0003993-2008; CP-65-CR-0003994-2008
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERMAINE F. MORGAN
Appellant No. 712 WDA 2015
Appeal from the PCRA Order April 21, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001117-2008;
CP-65-CR-0003993-2008; CP-65-CR-0003994-2008
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERMAINE F. MORGAN
Appellant No. 713 WDA 2015
J-S62036-15
Appeal from the PCRA Order April 21, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001117-2008;
CP-65-CR-0003993-2008; CP-65-CR-0003994-2008
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 1, 2015
Appellant, Jermaine F. Morgan, appeals from the order entered in the
Westmoreland County Court of Common Pleas, which denied his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
In January 2008, a confidential informant (“CI”) assisted police with an
investigation into Appellant’s drug related activities. During the course of
the investigation, the C.I. engaged in two controlled drug buys with
Appellant at Appellant’s house on January 21, 2008, and January 29, 2008.
Following the second controlled buy between the C.I. and Appellant, police
obtained a search warrant for Appellant’s house. Patrolman Dennis Pape
(“Patrolman Pape”) wrote and signed the affidavit of probable cause in
support of the search warrant.
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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On January 31, 2008, police executed the search warrant on
Appellant’s house and recovered, inter alia, cocaine, marijuana, a firearm, a
digital scale, and over one-thousand dollars ($1,000.00). Police
subsequently arrested Appellant and the Commonwealth charged Appellant
with various drug-related crimes at three separate dockets on October 15,
2008. Specifically, the Commonwealth charged Appellant with the following
offenses: at docket no. CP-65-CR-0003994-2008, two counts of PWID, and
one count of possession of a controlled substance in connection with the
January 21, 2008 controlled buy; at docket no. CP-65-CR-0003993-2008,
two counts of PWID, and one count of possession of a controlled substance
in connection with the January 29, 2008 controlled buy; and at docket no.
CP-65-CR-0001117-2008, one count of receiving stolen property, two counts
of possession of a controlled substance with the intent to deliver (“PWID”),
two counts of possession of a controlled substance, and one count of
possession of drug paraphernalia, in connection with the search of
Appellant’s house on January 31, 2008.
Appellant proceeded to a jury trial on November 10, 2009. On
November 17, 2009, the jury convicted Appellant of all charged offenses at
all three dockets. The court sentenced Appellant to an aggregate term of
five (5) to ten (10) years’ imprisonment on March 16, 2010. After the court
denied Appellant’s post-sentence motions, Appellant timely filed a notice of
appeal on April 1, 2011. This Court affirmed Appellant’s judgment of
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sentence on April 11, 2012, and our Supreme Court denied allowance of
appeal on February 28, 2013. See Commonwealth v. Morgan, 48 A.3d
475 (Pa.Super. 2012), appeal denied, 619 Pa. 689, 63 A.3d 776 (2013).
Appellant timely filed a pro se PCRA petition on August 19, 2013. The
court appointed counsel (“PCRA counsel”) on November 12, 2013. On
February 7, 2014, PCRA counsel filed an amended PCRA petition, in which
Appellant claimed trial counsel was ineffective. The court held a hearing on
Appellant’s ineffective assistance of counsel claims on August 26, 2014, and
the court denied PCRA relief on April 21, 2015. Appellant timely filed a
notice of appeal on April 30, 2015. On May 4, 2015, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on May 14,
2015.
Appellant raises the following issues for our review:
WHETHER THE [TRIAL COURT] ERRED IN FAILING TO FIND
[APPELLANT’S] TRIAL COUNSEL INEFFECTIVE FOR FAILING
TO INVESTIGATE AND EXPLORE THE PERSONAL ANIMUS
OF ARRESTING OFFICER, DENNIS PAPE[?]
WHETHER THE [TRIAL COURT] ERRED IN FAILING TO FIND
[APPELLANT’S] TRIAL COUNSEL INEFFECTIVE FOR FAILING
TO CALL WITNESS DEONNA WILLIAMS[?]
(Appellant’s Brief at 5).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
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Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a PCRA court’s
credibility determination, it is binding on the appellate court.
Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, the petitioner is
required to demonstrate that: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable strategic basis for his action or inaction; and,
(3) but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different.
Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).
The failure to satisfy any prong of the test for ineffectiveness will cause the
claim to fail. Williams, supra.“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
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v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The [appellant]
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. In [Kimball, supra], we held
that a “criminal [appellant] 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.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
(2002) (some internal citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reason opinion of the Honorable Debra A. Pezze,
we conclude Appellant’s first issue on appeal merits no relief. The trial court
opinion comprehensively discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed April 21, 2015, at 1-2) (finding: at
PCRA hearing, Appellant alleged Patrolman Pape told Appellant’s ex-girlfriend
that Appellant was just another drug dealer that Patrolman Pape could put in
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jail if he wanted to; Appellant also testified that he informed trial counsel of
Patrolman Pape’s animus toward Appellant, but trial counsel failed to cross-
examine Patrolman Pape with this information at trial; trial counsel provided
testimony at PCRA hearing, in which trial counsel stated he did not recall
Appellant ever telling trial counsel about Patrolman Pape’s alleged animus
toward Appellant; trial counsel also testified he felt he had vigorously cross-
examined Patrolman Pape at trial; trial counsel further indicated he would
have brought up Patrolman Pape’s alleged animus toward Appellant if
Appellant had informed trial counsel of it; PCRA court noted Patrolman Pape
was merely one of many police officers involved in Appellant’s case, so trial
counsel’s failure to explore alleged animus did not unfairly prejudice
Appellant; Appellant’s ineffective assistance of counsel claim against trial
counsel warrants no relief). With respect to Appellant’s first issue, we affirm
on the basis of the trial court’s opinion.
In his second issue, Appellant argues trial counsel failed to offer
sufficient evidence to support the defense’s theory of the case. Appellant
maintains trial counsel’s defense theory was that the house searched by
police was not Appellant’s residence, and the drugs found inside the house
did not belong to Appellant. Appellant contends trial counsel merely offered
character evidence at trial, even though various witnesses, including Deonna
Williams, Meghan Milliron, Gina Hershey, and several of Appellant’s cousins,
were willing to provide testimony in support of this defense. Appellant also
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complains that trial counsel erroneously convinced Appellant not to testify on
his own behalf. Appellant asserts his own testimony was necessary for the
defense strategy to succeed, and there was no valid reason for Appellant not
to testify, because Appellant had no criminal history at the time. Appellant
concludes trial counsel’s failure to call certain witnesses, including Appellant,
constituted ineffective assistance of counsel, and this Court should grant
relief. We disagree.
A petitioner’s claim that counsel was ineffective for failing to call a
particular witness, requires certain proof:
[T]he [petitioner] must show: (1) that the witness existed;
(2) that the witness was available; (3) that counsel was
informed of the existence of the witness or should have
known of the witness’ existence; (4) that the witness was
prepared to cooperate and would have testified on
[petitioner’s] behalf; and (5) that the absence of the
testimony prejudiced [petitioner].
Commonwealth v. Michaud, 70 A.3d 862, 867-68 (Pa.Super. 2013).
Significantly, a court shall not find trial counsel ineffective for failure to call a
witness unless there is some showing by the petitioner that the witness’
testimony would have been beneficial under the circumstances of petitioner’s
case. Commonwealth v. Auker, 545 Pa. 521, 548, 681 A.2d 1305, 1319
(1996). “[F]ailure to call a witness is not per se ineffective assistance of
counsel for such decision usually involves matters of trial strategy.”
Michaud, supra at 868.
To be eligible for relief under the PCRA, a petitioner must plead and
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prove, inter alia, his allegations of error were not previously litigated or
waived. 42 Pa.C.S.A. § 9543(a)(3). “[A]n issue is waived 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). Likewise, the failure to raise an issue before the PCRA
court deems the claim presented waived. Commonwealth v. Bond, 572
Pa. 588, 819 A.2d 33 (2002). See also Pa.R.A.P. 302(a) (stating issues not
raised in PCRA court are waived and cannot be raised for first time on
appeal). Significantly, “the failure to raise an issue in an ordered Rule
1925(b) statement results in the waiver of that issue on appeal.” See
Commonwealth v. Poncala, 915 A.2d 97, 100 (Pa.Super. 2006), appeal
denied, 594 Pa. 678, 932 A.2d 1287 (2007).
Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure
provides:
Rule 2119. Argument
(a) General rule. The argument shall be divided into as
many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in
type distinctively displayed—the particular point treated
therein, followed by such discussion and citation of
authorities as are deemed pertinent.
Pa.R.A.P. 2119(a). Additionally, Rule 2101 states:
Rule 2101. Conformance with Requirements
Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as
the circumstances of the particular case will admit,
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otherwise they may be suppressed, and, if the defects are
in the brief or reproduced record of the appellant and are
substantial, the appeal or other matter may be quashed or
dismissed.
Pa.R.A.P. 2101. Importantly:
The argument portion of an appellate brief must include a
pertinent discussion of the particular point raised along
with discussion and citation of pertinent authorities. This
court will not consider the merits of an argument which
fails to cite relevant case or statutory authority. Failure to
cite relevant legal authority constitutes waiver of the claim
on appeal.
In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal
denied, 620 Pa. 724, 69 A.3d 603 (2013).
Instantly, Appellant failed to raise in his Rule 1925(b) statement, his
claim that trial counsel was ineffective for failure to call Ms. Hershey, Ms.
Milliron, and several of Appellant’s cousins as witnesses at trial.
Additionally, Appellant failed to allege in his Rule 1925(b) statement, that
trial counsel was ineffective based on trial counsel’s advice to Appellant not
to testify on his own behalf. Importantly, Appellant’s failure to raise these
issues in his Rule 1925(b) concise statement constitutes waiver of these
claims. See Poncala, supra.With respect to Appellant’s claim that trial counsel was ineffective for
failure to call Deonna Williams as a witness, Appellant did not separate his
issues raised on appeal in the argument section of his brief as necessary to
comply with the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P.
2119(a). Appellant’s argument section of his brief also fails to include any
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relevant case law to support this claim. Likewise, Appellant’s argument does
not address any of the factors necessary to prove ineffective assistance of
counsel for failure to call a witness. Appellant’s failure to develop his claim
properly constitutes waiver of this claim as well. See In re Estate of
Whitley, supra.Moreover, even if Appellant had properly preserved his claim involving
Ms. Williams, the trial court determined this issue lacked merit, reasoning:
The witness in question, Deonna Williams, testified at
[Appellant’s] evidentiary hearing and stated she was
willing to testify at [Appellant’s] trial. More specifically,
she stated “his old attorney I spoke to saying I would be
willing to testify.” She later testified that she never
actually spoke to [Appellant’s] trial [counsel], but left a
message on a machine that she believed was his office
voicemail. Nevertheless, she elicited that she occasionally
cleaned the house where it was alleged [Appellant] resided
and where the drugs were found. She said it was a “party
house” and although [Appellant] was the leaseholder, she
thought he lived at his girlfriend’s or cousin’s house. The
[c]ourt finds that prongs one, two, and four were met in
establishing whether counsel was ineffective for failing to
call a witness.
Trial counsel…testified that he had no recollection of
[Appellant] discussing Deonna Williams as a possible
witness, nor was there any mention of her in the notes he
kept during the interim of the case. During cross-
examination by the Commonwealth, [trial counsel] was
informed that Ms. Williams had been convicted of several
crimes of dishonesty in the past ten years and [when
asked at the PCRA hearing] whether this fact would have
factored in [trial counsel’s] decision on whether to call her
as a witness…[trial counsel] responded in the affirmative
stating that he “would have been less inclined to call her
as a witness because of [this] credibility issue….” Though
the [c]ourt finds [trial counsel’s] testimony credible, the
[c]ourt is mindful of the fact that approximately five years
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have passed since [Appellant’s] trial and that having vivid
recollections of all attorney-client conversations would be a
near impossibility.
[Appellant] testified at the PCRA [h]earing that he talked
to [trial counsel] about many possible witnesses; however,
the only witness that can be considered by this [c]ourt in
[Appellant’s] claim for ineffective assistance of counsel is
[Ms.] Williams, due to the fact that she was the only
prospective witness that was called to testify during the
PCRA [h]earing and the only witness mentioned in
[Appellant’s] amended PCRA petition. [Appellant] further
testified that “he discussed [Ms.] Williams briefly with [trial
counsel], but only because she was there cleaning.” Due
to the sparse nature of [Appellant’s] testimony relative to
his conversation with trial counsel regarding Ms. Williams
and due to the minimal testimony that Ms. Williams stated
she would have provided, the [c]ourt finds that even if
[Appellant] made mention of the aforementioned witness
to trial counsel, the fact that she was not called as a
witness was not so prejudicial to [Appellant’s] case as to
deny him a fair trial.
(Trial Court Opinion, filed April 21, 2015, at 3-4) (internal citations omitted).
The record supports the court’s sound reasoning. See Conway, supra.Therefore, Appellant’s second issue warrants no relief. Accordingly, we
affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/01/2015
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IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA )
)
vs. ) No. 1117 Criminal, 2008
) 3993 Criminal, 2008
JERMAINE F. MORGAN ) 3994 Criminal, 2008
)
Petitioner. )
OPINION AND ORDER
By Debra A. Pezze, Judge:
This matter is before the Court on Petitioner's Amended Petition for Post-Conviction
Collateral Relief, in which he alleges that counsel was ineffective in his representation of him at
trial for failing to investigate and explore personal animus of arresting officer, Dennis Pape,
toward Petitioner and for failing to call as an alibi witness, Deonna Williams. After a hearing
held on August 26, 2014, and having given careful consideration to the arguments of counsel, the
Petition will be denied.
The Court will first address Petitioner's claim that trial counsel was ineffective in failing
to investigate and explore personal animus of arresting officer, Dennis Pape. To prevail in an
ineffectiveness of counsel claim under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.,
the petitioner must prove the following: 1) that his claim has arguable merit; 2) that counsel's
conduct lacked a reasonable basis designed to effectuate his best interests; and 3) that the
petitioner was prejudiced by counsel's ineffectiveness. Commonwealth v. Kimball, 724 A.2d 326(Pa. 1999).
Circulated 11/20/2015 02:08 PM
Petitioner testified his former girlfriend, Gina Hershey, was asked out by Officer Pape
and when she declined, Officer Paper stated that he (Petitioner) was just a drug dealer like
everyone else in West Jeannette and if he wanted to, he could put him (Petitioner) in jail (PCRA
Hearing Transcript, page 31; hereinafter referred to as P.H. T, p. 31) Petitioner further testified
that he discussed this with Attorney Monzo. However, Attorney Monzo testified that he did not
recall the Petitioner ever informing him of some type of animus toward him by Officer Pape. He
additionally noted that after reviewing the trial transcript, he thought he "went at him pretty hard
at trial, and I think ifwe would have had more to go with it, we would have done it." (P.H.T. p.
20)
A review of the record reveals that a confidential informant was utilized by the Drug
Task Force to conduct a controlled "buy" on the Petitioner. Though Officer Pape's name is
listed as the affiant on the Criminal Complaint, other members of the Westmoreland County
Drug Task Force were present in a police vehicle near the Petitioner's residence during the
aforementioned "buy." A search warrant was later executed on Petitioner's residence, and once
again, numerous law enforcement members of the Westmoreland County Drug Task Force were
present. Due to the fact that Officer Pape was merely one law enforcement member in a case
that utilized many, not exploring possible personal animus of one officer would not result in the
Petitioner suffering any prejudice. Furthermore, Attorney Monzo had no recollection of being
informed of any possible animus of Officer Pape toward the Petitioner. Therefore, this Court
finds that even if Petitioner's claim of ineffective assistance of counsel did not lack merit, he did
not suffer any prejudice from his counsel failing to explore the above noted animus.
Petitioner next claims that trial counsel was ineffective for failing to present the
testimony of Deonna Williams. In establishing whether counsel was ineffective for failing to
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call a witness, the Petitioner must demonstrate: (1) the witness existed; (2) the witness was
available; (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 was so
prejudicial to petitioner to have denied him a fair trial. Commonwealth v. Clark, 961 A.2d 80,
90 (Pa. 2008).
The witness in question, Deonna Williams, testified at the Petitioner's evidentiary
hearing and stated that she was willing to testify at Petitioner's trial. More specifically, she
stated "his old attorney I spoke to saying I would be willing to testify." (P.H.T. p. 8) She later
testified that she never actually spoke to Petitioner's trial attorney, but left a message on a
machine that she believed was his office voicemail. (P.H.T. p. 23) Nevertheless, she elicited that
she occasionally cleaned the house where it was alleged the Petitioner resided and where the
drugs were found. She said it was a "party house" and although Petitioner was the leaseholder,
she thought he lived at his girlfriend's or cousin's house. (P.H.T., p. 6) The Court finds that
prongs one, two and four were met in establishing whether counsel was ineffective for failing to
call a witness.
Trial Counsel, Jeffrey Monzo, testified that he had no recollection of the Petitioner
discussing Deonna Williams as a possible witness, nor was there any mention of her in the notes
he kept during the interim of the case. (P.H.T., pp. 17-18). During cross-examination by the
Commonwealth, Attorney Monzo was informed that Ms. Williams had been convicted of several
crimes of dishonesty in the past ten years and whether this fact would have factored in Attorney
Monzo's decision on whether to call her as a witness ifhe was aware that the Petitioner wished
her to testify. Attorney Monzo responded in the affirmative stating that he ''would have been
less inclined to call her as a witness because of credibility issue ... " (P.H.T. p. 19) Though the
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Court finds Attorney Monzo's testimony credible, the Court is mindful of the fact that
approximately five years have passed since Petitioner's trial and that having vivid recollections
of all attorney-client conversations would be a near impossibility.
Petitioner testified at the PCRA Hearing that he talked to counsel, Jeff Monzo, about
many possible witnesses; however, the only witness that can be considered by the Court in
Petitioner's claim for ineffective assistance of counsel is Deonna Williams, due to the fact she
was the only prospective witness that was called to testify during the PCRA Hearing and the only
witness mentioned in Petitioner's Amended PCRA Petition. Petitioner further testified that "he
discussed Deonna Williams briefly {with Attorney Monzo], but only because she was there
cleaning. (P.H.T. p. 32). Due to the sparse nature of Petitioner's testimony relative to his
conversation with trial counsel regarding Ms. Williams and due to the minimal testimony that
Ms. Williams stated she would have provided, the Court finds that even if Petitioner made
mention of the aforementioned witness to trial counsel, the fact that she was not called as a
witness was not so prejudicial to Petitioner's case as to deny him a fair trial.
Based upon the foregoing, the Court finds that Petitioner's ineffective assistance of
counsel claims fail, and the Post-Conviction Relief Act Petition will be denied.
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IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY
COMMONWEAL TH OF PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA )
)
vs. ) No. 1117 Criminal, 2008
) 3993 Criminal, 2008
JERMAINE F. MORGAN ) 3994 Criminal, 2008
)
Petitioner. )
ORDER OF COURT
``
AND NOW, to wit, this __ day of April, 2015, based upon the rationale contained in
the foregoing Opinion, it is hereby ORDERED and DECREED that the Post Conviction Relief
Act Petition is DENIED.
COURT:
ATTEST:
cc: Allen Powanda, Esq. - for the Commonwealth
Michael DeMatt, Esq. - for the Defendant
Court Administrator's Office
- ...
. ,_;