Com. v. Corley, C. ( 2016 )

J-S18036-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CONRAD JARVIS CORLEY :
:
Appellant : No. 1197 MDA 2015
Appeal from the Order Entered January 23, 2015
in the Court of Common Pleas of Northumberland County,
Criminal Division, at No(s): CP-49-CR-0000353-2007
BEFORE: BOWES, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 09, 2016
Conrad Jarvis Corley (Appellant) appeals from the order entered on
January 23, 2015, which denied his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
The facts underlying Appellant’s conviction can be summarized as
follows. On the morning of December 18, 2006, police officers arrived at
Appellant’s residence to execute an arrest warrant for Maria Petruskevich.
After officers knocked on his front door for several minutes, Appellant
opened the door, appearing as though he had just gotten out of bed.
Appellant admitted the police officers into the residence.
While conducting a protective sweep of the residence, an
officer observed drugs and drug paraphernalia scattered on the
floor in [Appellant’s] bedroom. The officer seized all of the items
that were in plain view.
*Retired Senior Judge assigned to the Superior Court.
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In sum, police discovered twenty-nine small bags of
heroin, three prescription pill-bottles containing narcotic
medications, marijuana, a glass pipe used to smoke crack-
cocaine, two bent spoons used to liquefy heroin, a syringe,
empty plastic bags, and a wallet containing $1,871.00 in cash.
Based upon that evidence, [Appellant] was charged with
possession with intent to deliver (“PWID”) and other drug-
related offenses.
***
At the conclusion of his jury trial, Appellant was
adjudicated guilty of PWID (heroin), [one count] of possession of
heroin, possession of an adulterated controlled substance,
possession of marijuana, and possession of drug paraphernalia.
Thereafter, [Appellant] waived his right to counsel and
proceeded to sentencing pro se, although standby counsel was
present. The hearing was held on November 10, 2008, after
which, [Appellant] was sentenced to a term of imprisonment of
93 to 189 months. [Appellant did not file a post-sentence
motion, but timely filed a direct appeal.]
Commonwealth v. Corley, 23 A.3d 560 (Pa. Super. 2010) (unpublished
memorandum at 1-2).
On December 7, 2010, a panel of this Court affirmed Appellant’s
judgment of sentence, and on July 13, 2011, our Supreme Court denied
Appellant’s petition for allowance of appeal. Id., appeal denied, 24 A.3d 361
(Pa. 2011).
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On August 15, 2011, Appellant timely filed pro se a PCRA petition.
Counsel was appointed on July 29, 2013.1 On December 4, 2013, counsel
filed an amended PCRA petition. That petition asserted trial counsel’s
ineffective assistance with respect to interviewing witness Maria Petruskevich
prior to trial. An evidentiary hearing was held on July 8, 2014, and on
January 23, 2015, the PCRA court denied Appellant’s petition for PCRA relief.
Appellant timely filed a notice of appeal. Both Appellant and the PCRA
court complied with Pa.R.A.P. 1925.
Appellant presents one question for our review: “Whether the court
erred in finding [Appellant’s] trial counsel effective when [Appellant’s]
attorney failed to interview and investigate the Commonwealth’s primary
witness?” Appellant’s Brief at 4.
In reviewing the propriety of an order granting or denying PCRA relief,
an appellate court is limited to ascertaining whether the record supports the
determination of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). 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).
1
It is not clear from the record why counsel was not appointed until almost
two years after the filing of Appellant’s petition.
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As Appellant’s claim alleges the ineffective assistance of trial counsel,
we set forth the well-settled principles of law. In reviewing the PCRA court’s
denial of such a claim, we bear in mind that counsel is presumed to be
effective. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). To
overcome this presumption, Appellant bears the burden of proving the
following: “(1) the underlying substantive claim has arguable merit; (2)
counsel whose effectiveness is being challenged did not have a reasonable
basis for his or her actions or failure to act; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance.” Id. Appellant’s
claim will be denied if he fails to meet any one of these three prongs. Id.
The PCRA court summarized the circumstances underlying Appellant’s
issue.
[Appellant’s jury trial was set to begin on September 23,
2008.] The day before the 23rd, [Assistant District Attorney Cole
(ADA Cole)] received word from a witness, Maria Petruskevich,
that she would be available to testify the next day concerning
[Appellant’s] delivery of heroin at or around the time of the
incident in question. [ADA] Cole prepared a 404(b)(4) notice
and submitted the same to [Appellant’s attorney, Attorney
Ulmer,] via facsimile approximately fifteen minutes before
[c]ourt closed. [ADA] Cole urged the [c]ourt to accept the
evidence and argued that evidence of prior drug sales was
admissible and cited case law to demonstrate his point. The
[c]ourt interjected the notion that there was no surprise because
the name of Ms. Petruskevich was known. [Attorney] Ulmer
responded that although Ms. Petruskevich was known to the
defense, she was not known for this purpose. Specifically,
[Attorney] Ulmer argued that there had been no indication that
Ms. Petruskevich would be material to the case vis-à-vis
identifying [Appellant] as delivering heroin. [Attorney] Ulmer
knew Ms. Petruskevich was involved because it was on a warrant
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for her arrest that the officers responded to [Appellant’s]
residence at all in December of 2006.1
1
Though noted above, this fact bears mentioning
again. The entirety of the witness’ involvement in
the case was as the individual the police were
searching for when they first encountered
[Appellant]. Evidence of a drug-related relationship
was absent, evidence of any knowledge on the part
of the witness which in any way could incriminate
[Appellant] was utterly absent from the case.
[Attorney] Ulmer testified that he believed he was being
sandbagged by [ADA] Cole. He indicated that he was
unprepared to effectively cross-examine Ms. Petruskevich. He
felt that he needed a trial continuance in which to prepare.
[ADA] Cole affirmed that he only came to interview Ms.
Petruskevich the day before the trial, [and] according to him, the
knowledge that Ms. Petruskevich was an eye-witness to
[Appellant’s] delivery of heroin was new information to [ADA]
Cole. In other words, he first learned this fact the day before
trial. The [trial c]ourt denied the continuance, indicating that
the witness was known to both sides for some time and that the
use of the witness was a matter of Commonwealth strategy.
The jury was sworn, and the [trial c]ourt gave its opening
instructions. At the conclusion of which, immediately prior to
[ADA] Cole beginning the Commonwealth’s case, [Attorney]
Ulmer requested a side bar.
At side bar, [Attorney] Ulmer indicated that after he
explained to [Appellant] what had occurred in chambers and his
own person[al] belief that he was being rendered ineffective by
the [trial c]ourt’s ruling, [Appellant] fired him. [Attorney] Ulmer
expressed a concern that the jury may have heard [Appellant’s]
determination. The [trial c]ourt dismissed the jury to the jury
room, and conducted a colloquy with [Appellant] regarding
proper conduct in the courtroom. After having [Appellant]
sworn, [Appellant] expressed his consternation at the notion that
his counsel was ineffective.2
2
Testimony at the PCRA hearing indicated that
[Appellant], subsequent to his trial, reviewed the
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transcripts of [Attorney] Ulmer’s interaction with the
trial court in chambers. After his review of the
transcripts, he wrote [Attorney] Ulmer a letter and
apologized for the things [Appellant] had said and
done in respect to [Attorney] Ulmer during the trial
and after.
He also indicated a desire to represent himself[, stating,]
I understand also that if my lawyer, right, is
not doing what I asked him to do regarding my
defense because I know my rights is being totally
violated, right, I have a right to fire him right? You
know what I mean? I’ll represent myself better than
that.
The [trial c]ourt asked [Appellant] if it was his desire to
terminate the representation of [Attorney] Ulmer? [Appellant]
indicated “yes, sir.” The [trial c]ourt accepted his decision and
appointed [Attorney] Ulmer as stand-by counsel.
Immediately thereafter, [Attorney] Ulmer made yet
another request that the [trial c]ourt continue the case so he
could regroup with [Appellant]. The [trial c]ourt denied the
same.
The [trial c]ourt again questioned [Appellant] regarding his
decision to proceed without [Attorney] Ulmer’s assistance.
[Appellant] again indicated he wished to proceed pro se, and
then indicated he wished to make several motions to the [trial
c]ourt.
He made a motion to dismiss under Rule 600, a motion for
a change of venue, and Baster motions (regarding lack of
minority representation on the jury),[2] and a request for
suppression. All motions were denied.
The [trial c]ourt ordered the jury to be returned. [ADA]
Cole delivered his opening argument. [Appellant] addressed the
jury in his pro se capacity. [Immediately thereafter, Appellant
2
Presumably, the PCRA court is referring to motions pursuant to Batson v.
Kentucky, 476 U.S. 79 (1986).
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decided to reinstate Attorney Ulmer as his counsel. The trial
court granted the request and permitted Attorney Ulmer to act
as counsel for the rest of the trial.]
Ms. Petruskevich was the second witness called by the
Commonwealth and her testimony indicated that [Appellant]
provided her with heroin. She indicated that “a few times it was
bought and a few times it was given [by Appellant].” She
indicated she was a heroin addict at the time of the drug deal
and that she has since reformed. On cross she indicated again
that she was a heroin addict and that heroin affects the mind
and the memory. She also testified that she was “in trouble”
with the law as a result of her involvement with [Appellant]. On
re-direct, she was asked if she had “an axe to grind” with
[Appellant], and she indicated she did not.
At the PCRA hearing, [Attorney] Ulmer indicated that he
was aware that Ms. Petruskevich was wanted by Northumberland
County Adult Probation on a warrant at the time of the incident.
He was also aware she was listed as a confidential informant for
the police. He indicated that he did not believe she was
important enough to be called as a witness. He testified that he
told the trial court repeatedly that he was being rendered
ineffective if the [trial c]ourt would not grant his continuance
request. He testified that [Appellant] told him at trial that
[Appellant] had a list of rebuttal witnesses who could challenge
Ms. Petruskevich’s credibility.
PCRA Court Opinion, 1/23/2015, at 1-4 (some quotations, citations, and
footnotes omitted).
We first consider whether the failure of trial counsel to interview Ms.
Petruskevich prejudiced Appellant.3 “To demonstrate prejudice, the
3
“A claim that trial counsel did not conduct an investigation or interview
known witnesses presents an issue of arguable merit where the record
demonstrates that counsel did not perform an investigation.”
Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013). Thus,
Attorney Ulmer’s failure to interview Ms. Petruskevich presents an issue of
arguable merit. Moreover, we will assume arguendo that trial counsel’s
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petitioner 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 of the proceeding.” Commonwealth
v. King, 57 A.3d 607, 613 (Pa. 2012) (quotations and citations omitted).
Appellant argues that evidence of prejudice is clear because “trial
counsel was unable to investigate rebuttal witnesses which [Appellant] had
told him to call.” Appellant’s Brief at 12. At the PCRA hearing, Attorney
Ulmer testified that had he known earlier that the Commonwealth planned to
call Ms. Petruskevich, he would have “asked the [trial c]ourt to expend fees
for an investigator” to interview her. N.T., 7/8/2014, at 8. Attorney Ulmer
also testified that Appellant told him about some rebuttal witnesses, but
there was no time to interview them on the eve of trial. Id. at 13. Appellant
testified that once he learned that Ms. Petruskevich was going to testify
against him, he told Attorney Ulmer that he “had Darryl Fife, Joey Feudale,
and maybe a couple other people that [he] could have brought to court to
discredit her testimony[.]” Id. at 42.
In considering this issue, we bear in mind that Appellant was convicted
of five separate counts. The only count to which Ms. Petruskevich’s
rationale for failing to interview her, ie. that she was not important enough,
was unreasonable.
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testimony was related was PWID (heroin). The trial court charged the jury
as follows with respect to this count:
In order for a person to be convicted of possession of a
controlled substance with intent to deliver, the following four
elements must be proved to you beyond a reasonable doubt:
First, that the item, in fact, is a controlled substance. And
that substance as I have pointed out is heroin and it’s a
controlled substance under Pennsylvania law.
Second, that the item was possessed by [Appellant].
Third, that [Appellant] was aware of the item’s presence
and that the item, in fact, was the controlled substance charged.
And fourth, that [Appellant] possessed this item with the
specific intent to deliver the item to another person.
***
[T]here are basically three ways to determine whether [the
intent to deliver] exists. The first is where [Appellant] is proved
beyond a reasonable doubt to have engaged in the actual
delivery of drugs. The second is where [Appellant] is proved to
have expressed his intent to deliver. The third way recognizes
that ordinarily it is not possible to prove intent by direct
evidence.
However, intent like any other matter may be proven by
circumstantial evidence. … In determining whether it has been
proven that [Appellant] had the intent to deliver the substance
and not merely the intent to retain it for personal use, you
should consider all the evidence including the evidence as to the
quantity and quality of the items, in this case heroin, the
monetary value, [Appellant’s] circumstances, and the
circumstances of possession.
N.T., 9/23/2008, at 181-83.
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At trial, in addition to Ms. Petruskevich’s testimony about Appellant’s
actual delivery of heroin, the jury heard other testimony about the heroin
that was found in Appellant’s bedroom. Todd Owens, a police officer who is
a member of the Northumberland County/Montour County Drug Task Force,
testified that he found three containers in Appellant’s bedroom, each
containing nine or ten foil packets.4 Owens testified about what this
packaging means:
Generally in a situation like this these were obtained from
a source city, Reading or Philadelphia, Newark, somewhere --
one of the larger cities. And the reason for that is generally a
bundle or a deck as some of the slang term[s] for heroin each
one of these silver packs contained as I said ten and in one case
one contained nine.
Through investigations with other agencies we’ve seen as
high as 12 and as little as 9 in a bundle. It all depends on the
person that someone is buying from if they’re going to get a
little bit of a better deal or not.
So that’s a general good rule of thumb that these bundles
contain ten individual. And I refer to them as bags. In this
situation they were small little pieces of foil similar to if you
crumbled up a small gum wrapper.
***
Generally in our area this would be -- this would be more
consistent with someone who is a supplier [rather] than just a
mere user.
N.T., 9/23/2008, at 105-106.
4
John Evans, a forensic scientist supervisor with the Pennsylvania State
Police, testified that the 29 foil packets containing off white powder found in
Appellant’s bedroom all tested positive for heroin.
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Owens further testified about the $1,871 in cash found in Appellant’s
wallet. That amount included “numerous hundred dollar bills, fifties, and
then there’s some smaller denominations….” Id. at 109. Owens indicated
that this distribution indicated that Appellant was purchasing large amounts
of heroin from source cities because those transactions usually took place
with $100 bills, rather than smaller denominations. Id. at 110. Owens also
noted that there were several prescription pain medications found as well,
which meant “it wouldn’t be necessary to get heroin if you’re already
prescribed and you have a legal prescription to possess controlled
substances.” Id. at 112.
The jury could have found that Appellant guilty of PWID based only
upon this testimony.5 Accordingly, we conclude that Appellant did not suffer
prejudice by Attorney Ulmer’s failing to interview Ms. Petruskevich prior to
trial. In other words, we cannot say there is a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different” had Attorney Ulmer interviewed Ms. Petruskevich.
King, 57 A.3d at 613. The evidence found in Appellant’s bedroom was
sufficient and overwhelming evidence of Appellant’s intent to deliver heroin.
5
At trial, Appellant testified that he was a drug user, not a drug dealer. He
stated that there was a party at his house the night before and everybody
was “getting high.” N.T., 9/23/2008, at 133. He testified that he “shot six
bags of heroin in one shot” and that between midnight and 9:00 a.m. that
morning, he “ingested 29 to 39 bags of heroin.” Id. at 136. He also testified
he had withdrawn $2,000 from his bank account days earlier to buy gifts for
his children. Id. at 138.
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Even if Appellant had interviewed Ms. Petruskevich, and therefore had
the opportunity to learn of rebuttal witnesses, Appellant’s proof at this
juncture is woefully deficient.
In order to prevail on a claim of ineffectiveness for failing to call
a witness, a defendant must prove, in addition to meeting the
three [aforementioned] requirements, that: (1) the witness
existed; (2) the witness was available to testify for the defense;
(3) counsel knew 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 witness’s testimony was so prejudicial
as to have denied him a fair trial.
Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super. 2010) (citing
Commonwealth v. Wright, 961 A.2d 119, 155 (Pa. 2008)) (citations
omitted). Moreover, “Pa.R.Crim.P. 902(A)(15) states that a petition seeking
an evidentiary hearing shall include ‘a signed certification as to each
intended witness, stating the witness’s name, address, and date of birth,
and the substance of the witness’s testimony. Any documents material to
the witness’s testimony shall also be included in the petition[.]’”
Commonwealth v. Pander, 100 A.3d 626, 640 (Pa. Super. 2014). In
Pander, this Court also clarified that such certifications do not need to be in
the form of affidavits. Id.
Appellant’s PCRA petition did not contain the names of these
witnesses, let alone certifications about their availability, willingness to
testify, or what they would have actually testified about. Accordingly,
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Appellant is not entitled to relief on his claim of ineffective assistance of
counsel.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2016
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