Com. v. Watson, L. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LAQUINCEY ANTRON WATSON :
:
Appellant : No. 687 MDA 2017
Appeal from the PCRA Order March 30, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004163-2010
CP-22-CR-0004167-2010
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 01, 2018
Appellant, LaQuincey Antron Watson, appeals from the order entered
in the Court of Common Pleas of Dauphin County, denying his petition filed
pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Watson contends both his pre-trial counsel and trial counsel provided
ineffective assistance. We affirm.
The Commonwealth charged Watson with numerous offenses
stemming from a residential burglary spree spanning four counties, which
took place from November 2009 until March 2010. Typically, Watson parked
his car near or at the targeted home and kicked in a door to gain access. He
would then methodically rummage the home, stealing household electronics,
cash, and other items of value.
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After a three-day trial, a jury convicted Watson of twelve counts of
burglary and one count each of robbery, receiving stolen property, and
possession of a firearm. The trial court ultimately imposed an aggregate
sentence of imprisonment of 22 to 44½ years. This Court affirmed his
judgment of sentence. See Commonwealth v. Watson, 900 MDA 2013
(Pa. Super., filed August 11, 2014) (unpublished memorandum). And our
Supreme Court denied Watson’s petition for allowance of appeal. See
Commonwealth v. Watson, 112 A.3d 652 (Pa. 2015) (Table).
Watson filed a timely pro se PCRA petition. The PCRA court appointed
counsel who later filed an amended petition. The PCRA court denied the
petition and this timely appeal followed. On appeal, Watson raises four
issues concerning the ineffective assistance of counsel.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of
law, our scope of review is de novo. See id.To establish ineffectiveness of counsel, a PCRA petitioner must plead
and prove: his underlying legal claim has arguable merit; counsel’s actions
lacked any reasonable basis; and counsel’s actions prejudiced the petitioner.
See Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). Failure to
satisfy any prong of the ineffectiveness test requires dismissal of the claim.
See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004).
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Watson first argues that Korey Leslie, Esquire, his preliminary hearing
counsel, provided ineffective assistance by providing “confidential
information” to the Commonwealth at a pretrial hearing. Appellant’s Brief, at
12.
Prior to trial, Watson filed a petition for writ of habeas corpus, alleging
the Commonwealth failed to present a prima facie case at the preliminary
hearing. Attorney Leslie testified at the hearing held on the habeas petition.
Watson claims he never waived his attorney-client privilege.1 And according
to Watson, Attorney Leslie’s testimony “provided the Commonwealth with
information on how the Appellant was going to proceed during the trial” and
that his testimony explicitly disclosed “what the trial strategy would be[.]”
Id. In support of this argument, Watson provides a single citation to the
notes of testimony. The record, however, does not support his assertions as
to any revelation of trial strategy.
At the hearing, Attorney Leslie testified only as to the strategy he
employed at the preliminary hearing. See N.T., Pre-Trial Hearing, 6/28/12,
at 11-12. There were 45 witnesses at the preliminary hearing ready to
testify for the Commonwealth. See id., at 10. The Commonwealth called
Attorney Leslie as a witness to explain his reasoning behind waiving the
requirement of the Commonwealth calling all 45 witnesses to testify.
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1 Watson’s trial counsel lodged no objection to Attorney Leslie’s testimony.
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Attorney Leslie explained that “[u]p to that point there had only been maybe
one or two identifications” and he “didn’t want to run the risk of everyone
getting on the stand and saying that they remembered him from
somewhere.” Id., at 12. At that stage of the proceedings, the defense, not
surprisingly, was that Watson was not the perpetrator of the burglaries. See
id., at 13, 23. So, to avoid potential identifications from the 45 witnesses
assembled and ready to testify, Attorney Leslie entered into an agreement
with the Commonwealth permitting them to proceed at the preliminary
hearing without putting all of those witnesses on the stand. See id., at 15.
Attorney Leslie never disclosed anything about trial strategy. His
testimony focused exclusively on the strategy employed at the preliminary
hearing. See id., at 7-26. Thus, Watson’s assertion he was prejudiced by
Attorney Leslie’s “reciting what the trial strategy would be” is simply
baseless. Appellant’s Brief, at 12.
Watson next argues trial counsel provided ineffective assistance by
failing to object to the exclusion of all African-American jurors in violation of
Batson v. Kentucky, 476 U.S. 79 (1986). There, the Court held that a
prosecutor’s challenge of potential jurors solely because of their race violates
the Equal Protection Clause. See id., at 89.
If a defendant establishes a prima facie Batson claim, “the burden
shifts to the prosecutor to articulate a race-neutral explanation for striking
the juror(s) at issue.” Commonwealth v. Hanible, 30 A.3d 426, 475 (Pa.
2011) (citation omitted). However, “where,” as here, “no Batson challenge
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was raised during the voir dire process, a post-conviction petitioner is not
entitled to the benefit of Batson’s burden-shifting formula, but instead,
bears the burden in the first instance and throughout of establishing actual,
purposeful discrimination by a preponderance of the evidence.” Id., at 476
(internal quotation marks and citation omitted). And a defendant who lodged
no objection to the prosecutor’s use of peremptory strikes during voir dire
must “present a record identifying the race of the venirepersons stricken by
the Commonwealth, the race of the prospective jurors acceptable to the
Commonwealth but stricken by the defense, and the racial composition of
the final jury selected.” Id. (citation omitted).
Here, in his counseled PCRA petition, Watson did not even allege
purposeful discrimination; he simply alleged the Commonwealth struck two
African-American male jurors. See Amended PCRA Petition, filed 8/31/16, at
¶ 16. Nor did he present a record identifying the race of the prospective
jurors stricken by the Commonwealth, the race of the prospective jurors
acceptable to the Commonwealth, and the racial makeup of the selected
jury. Rather, for the first time in his appellate brief, and without any citation
to the record, Watson states, “all of the victims that testified in this case
were white families, and his jury was all white.” Appellant’s Brief, at 14.
Assuming for the sake of argument the prosecutor struck more
African-Americans than Caucasians, “[t]his fact, absent any other evidence
of discrimination, is insufficient to demonstrate purposeful discrimination.”
Hanible, 30 A.3d at 478 (citation omitted). Nor has Watson provided (or
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even alleged) any other evidence of racial bias, such as comments made by
the prosecutor during voir dire. See id., at 478-479.
In fact, Watson concedes that a review of the record reveals “there is
not enough evidence to meet the burden of showing purposeful
discrimination.” Appellant’s Brief, at 14 n.1. This burden fell squarely on
Watson. And as he cannot establish it, his claim fails.
Next, Watson argues trial counsel provided ineffective assistance when
he failed to request a Kloiber instruction.
A Kloiber instruction informs the jury that an eyewitness
identification should be viewed with caution when either the
witness did not have an opportunity to view the defendant
clearly, equivocated on the identification of the defendant, or has
had difficulties identifying the defendant on prior occasions.
Commonwealth v. Sanders, 42 A.3d 325, 332 (Pa. Super. 2012) (citation
and footnote omitted). See also Pa. SSJI (Crim) § 4.07B Identification
Testimony—Accuracy in Doubt.
At trial, Pamela Heinbaugh testified Watson broke into her home and
she identified him directly. See N.T., Jury Trial, 9/11/12, at 57-60, 67. But
she also admitted that approximately five months after the burglary she was
unable to identify Watson in a Pennsylvania State Police photo array. See
id., at 66-67.2 Trial counsel extensively cross-examined Heinbaugh about
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2 On cross-examination, she explained the photo array provided to her “was
a terrible copy.” N.T., Jury Trial, 9/11/12, at 79.
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inconsistencies in her trial testimony and preliminary hearing testimony and
about her failure to identify Watson in the photo array. See id., at 68-80.
But trial counsel did not request a Kloiber instruction. And such an
instruction was clearly warranted, as Heinbaugh equivocated in her
identification between the photo array and trial testimony.3 Thus, this issue
has arguable merit. We proceed to the prejudice prong.
Watson did not plead prejudice in his PCRA petition. See Amended
PCRA Petition, filed 8/31/16, at ¶ 17. That alone is fatal to his claim. He did,
however, assert prejudice in his brief. Even accepting that, Watson’s entire
argument on that prong is as follows: “Because it [i.e., the Kloiber
instruction] was not [given to the jury], the Appellant suffered prejudice and
counsel was ineffective.” Appellant’s Brief, at 17. How? Saying it does not
make it so. “Claims of ineffective assistance of counsel are not self-
proving[.]” Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002)
(citations omitted).
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3 The Commonwealth maintains no Kloiber charge was necessary as
Heinbaugh testified she had a clear opportunity to observe Watson. See
Commonwealth’s Brief, at 12-13 The Commonwealth cites cases for the
proposition that “once the opportunity to observe is established it becomes
defense counsel’s cross-examination, not the court’s Kloiber charge, which
must highlight any problems with the quality of a witness’s observation.”
Commonwealth v. Cleveland, 703 A.2d 1046, 1049 (Pa. Super. 1997).
That is certainly correct. But we are not dealing with opportunity to observe
here; we are dealing with equivocation in the two identifications. Heinbaugh
identified Watson at trial, but not in the photo array. Cleveland is
inapposite. See Pa. SSJI (Crim) § 4.07B 2.
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“In order to meet the prejudice prong of the ineffectiveness standard,
a 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.” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super.
2012) (internal quotation marks omitted; citations omitted). The PCRA
“requires that the prejudice prong of an ineffectiveness claim be ‘plead and
prove[n] by a preponderance of the evidence.’” Commonwealth v.
Lassiter, 722 A.2d 657, 663 n.8 (Pa. 1998) (opinion announcing the
judgment of the court) (quoting 42 Pa.C.S.A. § 9543(a)) (emphasis and
brackets in original). Watson’s blunt conclusion in his brief does not establish
a reasonable probability.
Lastly, Watson argues trial counsel provided ineffective assistance
when he failed to request a corrupt source charge in regards to the
testimony of Watson’s girlfriend, Latoya Craighead, who testified as a
Commonwealth witness.
Craighead testified Watson instructed her to go to his apartment and
remove his possessions. See N.T., Jury Trial, 9/12/12, at 13-14. She went
there and took “everything” out of his apartment, including “electronics.”
Id., at 14. She further testified Watson instructed her to try to sell two
televisions and a radio. See id., at 17.
Watson maintains Craighead was an accomplice. “A person is an
accomplice of another person in the commission of an offense if … with the
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intent of promoting or facilitating the commission of the offense, [s]he …
aids or agrees or attempts to aid such other person in planning or
committing it[.]” 18 Pa.C.S.A. § 306(c)(1)(ii). “An accomplice charge is
necessitated not only when the evidence requires an inference that the
witness was an accomplice, but also when it permits that inference.”
Commonwealth v. Watts, 501 A.2d 1152, 1154 (Pa. Super. 1985)
(citation omitted). See also Hanible, 30 A.3d at 462 (“The charge is
warranted where the evidence is sufficient to present a jury question with
respect to whether the Commonwealth’s witness is an accomplice.”) The
motivation behind the instruction is that an accomplice witness will implicate
others to gain leniency. See Watts, 501 A.2d at 1154. The instruction can
be found at Pa. SSJI (Crim) § 4.01 Accomplice Testimony.
The Commonwealth never charged Craighead with any crime, nor was
she facing charges. But the jury was unaware of this. From the jurors’
perspective, her actions in removing “everything” from Watson’s apartment
and then her complying with his directive for her to try to sell two televisions
and a radio, in the context of this case, permits a reasonable inference that
she was an accomplice to the crime of receipt of stolen property.
The PCRA court relies on the fact that “Mrs. Craighead was cooperative
and testified on behalf of the Commonwealth” to support its finding that
Craighead was not an accomplice. PCRA Court Opinion, at 7. As does the
Commonwealth. See Commonwealth’s Brief, at 14 (stating Craighead “was
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fully cooperative with the investigation”). The witness’s cooperation and
testimony on the Commonwealth’s behalf is the impetus behind the
instruction. Accordingly, we find this issue has arguable merit. But is there
prejudice?
Watson’s argument founders, once more, on the prejudice prong. He
did not plead prejudice in his PCRA petition. See Amended PCRA Petition,
filed 8/31/16, at ¶ 20. As noted, by itself that is fatal to his claim. See 42
Pa.C.S.A. § 9543(a). And even looking past the failure to plead, in his brief
Watson merely claims, “the testimony of Mrs. Craighead was crucial to the
Commonwealth’s case” and then simply concludes he “suffered prejudice, as
the outcome of the trial could have been different if the correct jury
instruction was given.” Appellant’s Brief, at 19. Again, one cannot but
wonder how, exactly?
As mentioned, “[t]o demonstrate prejudice, a petitioner must show
that there is a reasonable probability that, but for counsel’s actions or
inactions, the result of the proceeding would have been different.”
Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (citations
omitted). Watson’s terse conclusion falls far short of this standard.
Even if the jury disbelieved Craighead’s testimony, the Commonwealth
presented a plethora of evidence to establish beyond a reasonable doubt
that Watson was the perpetrator of the burglaries and related crimes. For
instance: Heinbaugh’s identification of Watson at trial, see N.T., Jury Trial,
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9/11/12, at 57-60, 67; Anthony Valenti’s testimony of catching Watson
trying to kick his home’s door down, see N.T., Jury Trial, 9/11/12, at 106-
107, 109; Detective James Glucksman’s testimony, see N.T., Jury Trial,
9/11/12, at 126-191; and the testimony throughout trial concerning the
technological ability to place Watson in close proximity to the burglaries
through cellphone “pings.”
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/1/18
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