Com. v. Owens, A. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AMIN L. OWENS,
Appellant No. 1958 MDA 2015
Appeal from the PCRA Order October 16, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001748-2010
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 19, 2016
Appellant Amin L. Owens appeals from the order entered in the Court
of Common Pleas of Lancaster County that denied, after an evidentiary
hearing, his first petition filed under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. Appellant contends (1) trial counsel was
ineffective in failing to communicate effectively with Appellant regarding
expert testimony to be presented by the Commonwealth; (2) trial counsel
was ineffective in failing to file a motion for severance; and (3) trial counsel
was ineffective in failing to request a lesser-included offense instruction. We
affirm.
The relevant facts and procedural history of this case may be
summarized as follows: The underlying case involved a criminal conspiracy
*Former Justice specially assigned to the Superior Court.
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in trafficking cocaine and marijuana to customers in several counties from
Philadelphia to Lancaster.1 Following a grand jury presentment, criminal
complaints were filed against Appellant and his seven co-conspirators: Henry
L. Williams, Justin E. Wiley, Leroy K. Warrick, David L. Lambert, David
Huggins, Jr., Salim D. Brokenborough, and Felicia Cooper. The charges
common to all co-conspirators included corrupt organizations, criminal
conspiracy, criminal use of a communication facility, and violations of the
Controlled Substance, Drug, Device and Cosmetic Act.2 Pursuant to
Pa.R.Crim.P. 582, the criminal cases were consolidated for trial.
Thereafter, Appellant filed a pre-trial omnibus motion seeking to
suppress intercepted telephone conversations, as well as a change of venue.
The trial court denied Appellant’s pre-trial motion.
On April 4, 2011, the case proceeded to a jury trial against five of the
original eight co-conspirators. Warrick and Wiley entered guilty pleas prior
to trial. Cooper, in hopes of negotiating a favorable plea agreement with the
Commonwealth, testified at trial against her co-conspirators. In addition to
her testimony, the Commonwealth presented evidence seized from a search
of Wiley’s house, including crack and powder cocaine, cash, ammunition,
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1
A detailed factual background of this case is set forth in this Court’s
published opinion in Commonwealth v. Huggins, 68 A.3d 962 (Pa.Super.
2013). Huggins was one of Appellant’s co-defendants.
2
Appellant’s co-defendant, Lambert, was additionally charged with person
not to possess or sell firearms.
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and drug-distribution paraphernalia. The Commonwealth also presented
recordings of drug-related conversations from lawful wiretaps on two cell
phones belonging to Lambert, as well as the lay and expert testimony of
Agent David Carolina.
On April 19, 2011, the jury entered a guilty verdict against Appellant
and his co-defendants. Specifically, as to Appellant, the jury convicted him
of corrupt organizations, criminal conspiracy, criminal use of a
communication facility, and five counts of delivery or possession with the
intent to deliver a controlled substance.3 On August 4, 2011, the trial court
sentenced Appellant to an aggregate of eleven years to twenty-two years in
prison.
Following the denial of Appellant’s post-sentence motion in which he
challenged the weight of the evidence, Appellant filed a timely direct appeal
to this Court. On appeal, Appellant averred the trial court erred in
permitting Agent David Carolina to testify as both a lay and expert witness.
He also averred the jury’s verdict was against the weight of the evidence.
Finding no merit to either claim, this Court affirmed Appellant’s judgment of
sentence. See Commonwealth v. Owens, 1984 MDA 2011 (Pa.Super.
filed 5/8/13) (unpublished memorandum). Appellant filed a petition for
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3
18 Pa.C.S.A. §§ 911(b)(3)(4), 903, 7512(a), and 35 P.S. § 780-
113(a)(30), respectively.
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allowance of appeal, which our Supreme Court denied on November 19,
2013.
On or about March 17, 2014, Appellant filed a timely pro se PCRA
petition, and the PCRA court appointed Michael V. Marinaro, Esquire, to
represent Appellant. Attorney Marinaro filed an amended PCRA petition on
June 16, 2014. The Commonwealth filed a motion requesting that the PCRA
court direct Appellant to file an amended petition that conformed with the
pleading requirements. By order entered on October 14, 2014, the PCRA
court directed Appellant to file a second amended PCRA petition averring
more specific facts to support his claims of ineffective assistance of counsel.
Thereafter, the trial court permitted Attorney Marinaro to withdraw
and new counsel, Edwin G. Pfursich, IV, Esquire, was appointed to represent
Appellant. On May 27, 2015, Attorney Pfursich filed a second amended
PCRA petition alleging trial counsel was ineffective for the following reasons:
(1) failing to communicate with Appellant in the months prior to trial; (2)
failing to request severance of Appellant’s case from the case of his co-
defendants; (3) failing to file a motion to suppress physical evidence; and
(4) failing to request a lesser-included offense instruction.
The Commonwealth filed a response to the second amended PCRA
petition, and on September 9, 2015, the PCRA court held an evidentiary
hearing at which Appellant and his former trial counsel, Curt Schulz, Esquire,
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testified.4 By order and opinion entered on October 16, 2015, the PCRA
court denied Appellant relief under the PCRA, and this timely appeal
followed. All Pa.R.A.P. 1925 requirements have been met.
On appeal, Appellant presents claims of ineffective assistance of trial
counsel. In reviewing Appellant’s particular claims, we are mindful of the
following legal precepts:
Our review of a PCRA court's decision is limited to
examining whether the PCRA court's findings of fact are
supported by the record, and whether its conclusions of law are
free from legal error. We view the findings of the PCRA court
and the evidence of record in a light most favorable to the
prevailing party. . . .The PCRA court's credibility determinations,
when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA
court's legal conclusions.
Commonwealth v. Mason, ___ Pa. ___, 130 A.3d 601, 617 (2015)
(internal quotation marks and citations omitted).
In order to obtain relief under the PCRA based on a claim
of ineffectiveness of counsel, a PCRA petitioner must satisfy the
performance and prejudice test set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). In Pennsylvania, we have applied the Strickland test
by requiring a petitioner to establish that: (1) the underlying
claim has arguable merit; (2) no reasonable basis existed for
counsel's action or failure to act; and (3) the petitioner suffered
prejudice as a result of counsel's error, with prejudice measured
by whether there is a reasonable probability that the result of
the proceeding would have been different. Commonwealth v.
Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001). Counsel is
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4
Since Attorney Schulz resides in Washington, the PCRA court permitted him
to testify via telephone.
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presumed to have rendered effective assistance, and, if a claim
fails under any required element of the Strickland test, the
court may dismiss the claim on that basis. Commonwealth v.
Ali, 608 Pa. 71, 10 A.3d 282, 291 (2010).
Commonwealth v. Vandivner, ___ Pa. ___, 130 A.3d 676, 680 (2015).
Regarding the arguable merit prong, a claim has arguable merit where
the factual predicate is accurate and “could establish cause for relief.”
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa.Super. 2013) (en
banc). A determination as to whether the facts asserted present a claim of
arguable merit is a legal one. Id.Relating to the reasonable basis prong, [g]enerally, where
matters of strategy and tactics are concerned, counsel's
assistance is deemed constitutionally effective if he chose a
particular course that had some reasonable basis designed to
effectuate his client's interests. Courts should not deem
counsel's strategy or tactic unreasonable unless it can be
concluded that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.
Also [a]s a general rule, a lawyer should not be held ineffective
without first having an opportunity to address the accusation in
some fashion. . . .The ultimate focus of an ineffectiveness
inquiry is always upon counsel, and not upon an alleged
deficiency in the abstract.
Relating to the prejudice prong of the ineffectiveness test,
the PCRA petitioner must demonstrate that there is a reasonable
probability that, but for counsel's error or omission, the result of
the proceeding would have been different.
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012)
(internal quotation marks and citations omitted).
Appellant first claims that trial counsel was ineffective in failing to
communicate effectively with him prior to trial. Specifically, he avers trial
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counsel failed to inform him that the Commonwealth would present the
expert testimony of Agent David Carolina at trial, and counsel did not
discuss the possibility of retaining a defense expert to refute Agent
Carolina’s expert testimony.5
At the evidentiary hearing, Appellant’s PCRA counsel questioned trial
counsel, in relevant part, on direct-examination as follows:
Q: Okay. Did you ever inform [Appellant] that the
Commonwealth would be calling an expert witness in this case?
A: Yes. Well, I mean the preliminary hearing, the expert I
assume you are referring to is Agent Carolina. He was used at
the preliminary hearing, so we had days of it where we actually
sat down and he was the expert.
And you know, the conversations—as I told him, you
know, the trial is going to be a lot like what the preliminary
hearing was. He’s going to get up there and he’s going to testify
as to the phone calls.
N.T. PCRA Hearing, dated 9/9/15, at 15-16.
In analyzing the PCRA hearing testimony, and rejecting Appellant’s
claim, the PCRA court explained as follows:
[Appellant] was at the preliminary hearing where Agent
Carolina testified as to the meaning of words that were used on
the wiretaps. [N.T. PCRA Hearing, dated 9/9/15, at 15-16, 32-
33]. While he was not specifically identified as an “expert” at
that time, [trial counsel] testified that Agent Carolina was clearly
providing “expert” testimony, or specialized knowledge beyond
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5
At trial, Agent Carolina was permitted to testify as a fact witness, as well
as an expert witness. With regard to his expert opinions, the trial court
permitted Agent Carolina to opine that various intercepted telephone
conversation were drug-related and consisted of various terms used in the
drug culture. In Huggins, supra, we concluded the trial court did not err in
permitting this testimony.
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that possessed by a layperson, such that [Appellant] would have
known. . .the purpose of his anticipated testimony for the jury.
[Id. at 15-16, 33].
PCRA Court Opinion, filed 10/16/15, at 12-13 (citations omitted).
Furthermore, as to Appellant’s assertion trial counsel did not discuss
the possibility of retaining a defense expert to refute Agent Carolina’s expert
testimony, counsel admitted as much at the PCRA evidentiary hearing. N.T.
PCRA Hearing, dated 9/9/15, at 16. However, in rejecting Appellant’s
ineffectiveness claim based thereon, the PCRA court explained:
[Trial counsel] concedes that he never discussed with
[Appellant] the possibility of retaining a rebuttal expert to Agent
Carolina. [Id.] Although he considered the idea, he rejected it
as simply unworkable. [Id. at 16-17]. The language used was
not its standard context and was oblique. Agent Carolina was
decoding drug slang in the particular circumstances of this case
so the jury would know to what the tapes referred. It was trial
counsel’s professional opinion that the better strategy was to
simply argue to the jury that the words interpreted one way by
Agent Carolina could mean anything. [Id. at 16]. “[C]ounsel’s
assistance is deemed constitutionally effective once the court
concludes that the particular course chosen by counsel had some
reasonable basis designed to effectuate his client’s interests.”
Such was the case here.
PCRA Court Opinion, filed 10/16/15, at 13 (quotation and citation omitted).
We find no error in this regard. See Mason, supra.
Appellant next claims trial counsel was ineffective in failing to request
that Appellant’s case be severed from the case of his co-defendants. We
find no relief is due on this claim.
Here, the Commonwealth provided notice under Pa.R.Crim.P. 582 that
it was consolidating Appellant’s and his co-defendants’ cases for trial.
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Pa.R.Crim.P. 582 governs consolidation of separate criminal indictments and
informations, and provides, in pertinent part:
Rule 582. Joinder--Trial of Separate Indictments or
Informations
(A) Standards
(1) Offenses charged in separate indictments or informations
may be tried together if:
(a) the evidence of each of the offenses would be
admissible in a separate trial for the other and is capable of
separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or
transaction.
(2) Defendants charged in separate indictments or informations
may be tried together if they are alleged to have participated in
the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses.
Pa.R.Crim.P. 582 (bold in original).
The PCRA court herein concluded that Appellant’s underlying issue
lacked arguable merit since consolidation was properly granted and,
additionally, that Appellant failed to demonstrate he was prejudiced by
counsel’s omission. Specifically, the PCRA court indicated, in relevant part,
as follows:
The Commonwealth charged these co-defendants with
conspiracy and alleged that [Appellant] and his co-defendants
were co-conspirators in a drug enterprise over the course of
several months. See Pa.R.Crim.P. 582(A)(2). Each co-defendant
was responsible for the natural and probable consequences of
their co-conspirators’ actions.
***
[T]he relevant evidence to one defendant was applicable to
his co-defendants (for example, the voluminous wiretap
evidence showed not only individual drug deliveries but also an
illegal drug distribution enterprise involving all of the defendants
as perpetrators/conspirators). Moreover, the charges against all
co-defendants arose from the same course of events. Lastly, the
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same witnesses (law enforcement agents and cooperating
witnesses) would be required to testify in each of the co-
defendants’ trials if they were severed and presented to separate
juries.
Based on the foregoing, [Appellant’s] suggestion that he
could have obtained a separate trial from his co-defendants had
his counsel moved for severance is plainly without merit. In
addition, [Appellant] fails to allege how he was prejudiced by
being tried jointly with his co-defendants and how the outcome
of his trial would have differed had he been tried separately,
when the undisputed evidence established beyond a reasonable
doubt that [Appellant] is guilty of the crimes for which he was
charged.
PCRA Court Opinion, filed 10/16/15, at 16-17. We find no error in this
regard. See Mason, supra.
Appellant’s final claim is that trial counsel was ineffective in failing to
request a lesser-included offense instruction. Specifically, Appellant contends
trial counsel should have requested that the trial court instruct the jury on
the lesser-included offense of simple possession of a controlled substance.6
We find Appellant is not entitled to relief.
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6
Appellant also contends trial counsel should have requested that the trial
court instruct the jury on the “lesser-included offense” of possession of drug
paraphernalia, 35 P.S. § 780-113(a)(32). “A lesser-included offense is a
crime having elements. . . which are a necessary subcomponent of elements
of another crime. . . .The elements in the lesser-included offense are all
contained in the greater offense; however, the greater offense contains one
or more elements not contained in the lesser-included offense.”
Commonwealth v. Kelly, 102 A.3d 1025, 1032 (Pa.Super. 2014) (en
banc).
Appellant was convicted of corrupt organizations, criminal conspiracy,
criminal use of a communication facility, and five counts of delivery or
possession with the intent to deliver a controlled substance. He has failed to
explain to which “greater offense” the crime of possession of drug
(Footnote Continued Next Page)
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A review of the record reveals that inviting the jury to convict on the
lesser-included offense of simple possession would have been inconsistent
with Appellant’s defense strategy, which was to seek a full acquittal on all of
the charges. For instance, trial counsel argued to the jury that “most of
these guys, they don’t even know each other much less [are] in a business
organization.” N.T. Jury Trial, 4/6/11, at 348. He argued that law
enforcement had targeted Appellant based on speculation and telephone
conversations without proof. N.T. Jury Trial, 4/18/11, at 1561, 1563-64.
More specifically, with regard to Appellant’s five charges of possession
with the intent to deliver a controlled substance, trial counsel’s strategy was
that Appellant did not possess a controlled substance, let alone deliver or
have the intent to deliver, a controlled substance on any of the five alleged
occasions. N.T. Jury Trial, 4/6/11, at 348-52; N.T. Jury Trial, 4/18/11,
1558-66. In this regard, he argued to the jury that the police neither
observed the alleged transactions nor seized any drugs from the alleged
transactions. N.T. Jury Trial, 4/6/11, at 348-52. He further argued that
when the police searched a residence allegedly connected to Appellant, the
police found seven people, but Appellant was not present. Id. at 351. Trial
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(Footnote Continued)
paraphernalia is allegedly a lesser-included offense. However, simple
possession of a controlled substance is a lesser-included offense of
possession with the intent to deliver a controlled substance, and therefore,
we shall address this portion of Appellant’s ineffective assistance of counsel
claim. See 35 P.S. §§ 780-113(a)(16), (30).
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counsel argued the police found no money or drugs at the house, except for
a small amount of drug residue that was not connected to Appellant and
may have been left over from “a party the night before[.]” N.T. Jury Trial,
4/18/11, at 1562-63. See N.T. Jury Trial, 4/6/11, at 351-52. He indicated
that the Commonwealth is “asking you to take a huge leap of faith here[.]”
Id. at 352. He argued “[t]hey are asking you to find convictions when they
didn’t find all of these drugs and this money, stuff that they thought that
they would find.” N.T. Jury Trial, 4/18/11, at 1564. Trial counsel suggested
that “[a]t the end of the day, the evidence that they have and what they are
alleging, it just doesn’t match up. They have not proved their case beyond a
reasonable doubt against [Appellant].” Id. at 1566.
This Court has held that “[t]he goal of seeking [a] complete acquittal
does not constitute ineffective assistance of counsel.” Commonwealth v.
Harrison, 663 A.2d 238, 241 (Pa.Super. 1995). Moreover, counsel’s
strategy in this regard does not rise to the level of ineffective assistance
unless “in light of all the alternatives available to counsel, the strategy
actually employed was so unreasonable that no competent lawyer would
have chosen it.” Id. (quotation and quotation marks omitted). In the case
sub judice, trial counsel’s strategy seeking a full acquittal was not
unreasonable.
In sum, Appellant’s entire defense was that he was not a part of a
corrupt organization or conspiracy, and he never possessed, let alone
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delivered, a controlled substance. In light of the defense strategy, it would
have been inconsistent for trial counsel to seek to have the jury convict
Appellant on the lesser-included offense of simple possession of a controlled
substance. Accordingly, Appellant’s ineffectiveness claim fails. See
Harrison, supra.For all of the foregoing reasons, we affirm the PCRA court’s order
denying Appellant’s first PCRA petition.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2016
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