Com. v. Garcia, F. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
FELIX D. GARCIA :
:
Appellant : No. 3437 EDA 2018
Appeal from the PCRA Order Entered October 25, 2018
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0004050-2015
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 30, 2019
Appellant, Felix D. Garcia, appeals from the order of the Court of
Common Pleas of Chester County (trial court) that denied his first petition filed
under the Post Conviction Relief Act (PCRA).1 After careful review, we affirm.
This case arises out of a robbery of a Walgreens pharmacy in West
Chester, Pennsylvania on September 9, 2015, in which the robber jumped
over the pharmacy counter, threatened the pharmacist with harm unless she
gave him the pharmacy’s Oxycodone and Oxycontin pills, and stole 2,694
Oxycodone and Oxycontin pills. Appellant was arrested for this crime on
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
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October 21, 2015 and was subsequently charged with robbery by threat of
serious bodily injury, robbery in the commission of a first or second degree
felony, robbery by threat of bodily injury, theft by unlawful taking, possession
of a controlled substance, possession of a controlled substance with the intent
to deliver (PWID), and possession of drug paraphernalia.2
At trial, the facts concerning the robbery were undisputed and the main
issue was whether Appellant was the person who committed the robbery. The
victim and the other Walgreens employee who saw the robber could not
identify the robber and no drugs or other evidence relating to the robbery was
found on Appellant or in his car or apartment when he was arrested six weeks
after the robbery. The Commonwealth’s primary evidence against Appellant
consisted of surveillance videotapes of the robbery and of the robber in a
nearby store just before the robbery, the latter of which showed the robber’s
face, and photographs of Appellant that showed the same facial hair and
resembled the surveillance videotape images of the robber. A videotaped
statement given by Appellant at the time of his arrest was also introduced in
evidence. Appellant in that statement did not admit to the robbery and denied
that the person in the surveillance images was him.
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218 Pa.C.S. § 3701(a)(1)(ii), (iii), and (iv), 18 Pa.C.S. § 3921(a), and 35 P.S.
§§ 780-113(a)(16), (30), and (32). The Commonwealth also charged
Appellant with simple assault, 18 Pa.C.S. § 2701(a)(1), but withdrew that
charge before trial.
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Following a four-day jury trial, Appellant was convicted on December
16, 2016, of robbery by threat of serious bodily injury, robbery by threat of
bodily injury, theft by unlawful taking, possession of a controlled substance,
and possession of drug paraphernalia. The jury acquitted Appellant of the
robbery in the commission of a first or second degree felony and PWID
charges.
On March 13, 2017, the trial court sentenced Appellant to an aggregate
term of three to seven years’ imprisonment. Appellant filed a timely post-
sentence motion seeking a judgment of acquittal or new trial, which the trial
court denied on June 21, 2017. Appellant filed a timely direct appeal, but
discontinued that appeal on August 28, 2017.
On April 26, 2018, Appellant timely filed the instant first PCRA petition,
in which he asserted claims of ineffective assistance of counsel based on 1)
trial counsel’s failure to object to references by a police detective to debt as a
motive for stealing drugs and paying off debt as an act that constitutes
distribution of drugs and 2) trial counsel’s withdrawal of a motion for a mistrial.
On September 24, 2018, the trial court held an evidentiary hearing limited to
the withdrawal of the motion for a mistrial, at which Appellant and trial counsel
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testified. The trial court dismissed the PCRA petition on October 25, 2018.3
This timely appeal followed.
Appellant raises the following two issues for our review:
1. Did the trial court err in concluding that there were no genuine
issues of material fact and in denying relief without an evidentiary
hearing on Appellant’s ineffective assistance of counsel claim, that
prior counsel’s failure to object to testimony and evidence
introduced by the Commonwealth when viewed under the totality
of the circumstances constituted prosecutorial misconduct?
2. Did the trial court err in dismissing Appellant’s PCRA Petition
after an evidentiary hearing on the issue of ineffective of [sic]
assistance of counsel as it relates to Appellant’s claim that
Appellant withdrew a motion for mistrial unknowingly,
involuntarily, and unintelligently due to prior counsel’s advice to
[do] so, when such advice lacked any reasonable basis or
reasonable strategy?
Appellant’s Brief at 6. We conclude that the trial court correctly held that
neither of the claims for relief in Appellant’s PCRA petition had merit and that
there were no disputed facts that required a hearing on the first claim asserted
in Appellant’s PCRA petition.
We review the denial of Appellant’s PCRA petition to determine whether
the record supports the trial court’s findings and whether the court’s decision
is free of legal error. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.
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3 The trial court ordered Appellant to file a concise statement of errors
complained of on appeal and Appellant complied with this order. The judge
who tried the case and ruled on the PCRA petition retired shortly after
Appellant filed his concise statement, and the trial court’s opinion, filed March
8, 2019, was authored by a different judge assigned to this matter after the
dismissal of the PCRA petition.
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2015); Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018).
We must view the findings of the trial court and the evidence of record in a
light most favorable to the prevailing party, and the court’s credibility
determinations, if supported by the record, are binding on this Court. Mason,
130 A.3d at 617.
To be entitled to relief under the PCRA on a claim of ineffective
assistance of counsel, the convicted defendant must prove: (1) that the
underlying legal claim is of arguable merit; (2) that counsel’s action or inaction
had no reasonable basis designed to effectuate his client’s interests; and (3)
that he suffered prejudice as a result of counsel’s action or inaction. Mason,
130 A.3d at 618; Smith, 181 A.3d at 1174-75; Commonwealth v. Michaud,
70 A.3d 862, 867 (Pa. Super. 2013). The defendant must satisfy all three
prongs of this test to obtain relief under the PCRA. Mason, 130 A.3d at 618;
Smith, 181 A.3d at 1175; Michaud, 70 A.3d at 867.
Appellant’s first claim for relief was based on the contention that the
references to debt to which trial counsel failed to object violated the trial
court’s pretrial rulings. That contention is contrary to the record. The trial
court before trial excluded as unfairly prejudicial portions of Appellant’s
statement to police in which he admitted that he had approximately $1,000 in
gambling debts that he had paid off in August 2015 and evidence that
Appellant had maxed out on his credit card and owed $1,500 at the time of
the September 9, 2015 robbery. N.T. Pretrial Conference, 12/12/16, at 8, 12-
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20, 22-36. The references to Appellant’s debt were redacted from the
videotape of Appellant’s statement and were not played to the jury and no
evidence was introduced at trial or argument made to the jury that Appellant
had any debts.
Rather, the only reference to debt in the videotaped statement consisted
of the following:
Det. DiBattista: …. So this is gonna be somebody robbed the
pharmacy to make thousands and thousands of dollars sellin’
whatever they took. And you’re gonna be painted as this evil drug
dealing robber. I don’t see....
Appellant: The....
Det. DiBattista: Let me finish. I don’t see that person sitting in
front of me. I see somebody who’s trying to get his life back
on track and made one stupid decision, probably to pay off
a debt. That’s my take on it.
Appellant: It’s not me and, dude, my life is over. My life is over.
Commonwealth Ex. 48 at 13 (emphasis added). This statement did not assert
that Appellant had a debt, only that paying off “a debt” was a possible motive
for committing a drug robbery. Moreover, the jury was well aware that
Detective DiBattista’s statements in his questions to Appellant had no basis in
fact. Detective DiBattista admitted in his testimony that he lied in his
questions to Appellant and made things up that were contrary to the evidence
to see what response he would get. N.T. Trial, 12/15/16, at 514, 532.
The only other reference to debt did not relate to Appellant at all.
Instead, it was a response by Detective DiBattista in his testimony as an
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expert witness, to a question about what types of acts can constitute delivery
of drugs for the offense of PWID. This testimony consisted of the following:
A. … Again, if someone has possession of a large amount of drugs
or any drugs in general and they are telling me they don’t use
them, what else are you going to do with them? I guess it’s also
important to clarify, technically speaking, there doesn’t
necessarily need to be a hand to hand exchange of money for a
drug deal to have occurred. It’s something we run into a lot in
West Chester with college kids where you have someone who
knows where to get pills or cocaine or marijuana. And they think
they are helping their friends out and just pass a little off.
Technically, that's a drug deal.
Q. So the term distribution, can that take on different meanings?
A. Yes.
Q. And what are the various meanings to you as a narcotic
officer for distribution?
A. Again, just that some forms of distribution are for financial gain.
Some are in the case I just presented to you where people think
they are helping friends out, paying off debts, paying bills,
whatever the case may be.
Q. And can distribution mean both hand to hand transactions and
the sale of narcotics in bulk form?
A. Certainly.
N.T. Trial, 12/15/16, at 525-26 (emphasis added). Because the references to
debt did not violate the trial court’s rulings, the underlying claim lacked merit
and trial counsel’s failure to object therefore did not constitute ineffective
assistance of counsel.
Appellant also did not show prejudice from these isolated references to
debt. To satisfy the prejudice element of an ineffective assistance of counsel
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claim, the convicted defendant must show that there is a reasonable
probability that, but for counsel’s error, the outcome of the trial would have
been different. Mason, 130 A.3d at 618; Michaud, 70 A.3d at 867.
Neither of the statements to which counsel failed to object suggested
that Appellant had any debt. Although the jury requested and was permitted
to see Appellant’s videotaped statement during its deliberations, that does not
show any likelihood that Detective DiBattista’s single reference to debt
impacted their verdict. The jury’s requests showed that its focus was on the
visual content in the statement. The jury during its deliberations also
requested all photographs of the robber, all photographs of Appellant and the
surveillance videotapes and was given the photographs and reshown the
surveillance videotapes in addition to the videotaped statement. N.T. Trial,
12/16/16 at 797-99, 801-09. Indeed, the jury indicated, when it was reshown
the videotaped statement and one of the surveillance videotapes, that the
reason for its request was that two of the jurors had been unable to adequately
see the videotapes when they were played at trial because of where they were
seated. Id. at 803-05. Moreover, the jury’s verdict demonstrates that it did
not find that the robbery was committed because of a debt. If Appellant had
intended to use the stolen drugs to pay off a debt, he would have had intent
to deliver the drugs and would have been guilty of PWID. The jury, however,
acquitted Appellant of PWID.
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Appellant’s contention that the court erred in failing to hold an
evidentiary hearing on this issue likewise fails. A convicted defendant does
not have an absolute right to an evidentiary hearing on a PCRA petition.
Commonwealth v. Hill, 202 A.3d 792, 797 (Pa. Super. 2019);
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). Where
there are no genuine issues of material fact that must be resolved to rule on
a PCRA claim, the court is not required to hold a hearing. Commonwealth
v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019); Jones, 942 A.2d at 906.
Here, there were no genuine issues of fact with respect to Appellant’s claim
that trial counsel was ineffective for failure to object to the two references to
debt, as this claim was based solely on the record of the trial and pretrial
conference. The trial court therefore did not err in limiting its hearing on the
PCRA petition to Appellant’s second claim and ruling on Appellant’s first PCRA
claim without an evidentiary hearing.
Appellant’s second claim in his PCRA petition asserted that trial counsel’s
advice to withdraw a motion for a mistrial constituted ineffective assistance of
counsel. Counsel had moved for a mistrial on the second day of trial when
the prosecutor elicited testimony from a police detective that Appellant had
refused to give the police the passcode for his cellphone. N.T. Trial, 12/14/16,
at 412-14. The trial court took the motion for mistrial under advisement and
recessed the trial. Id. at 414-16.
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During the recess, trial counsel discussed the mistrial motion with
Appellant. N.T. Trial, 12/14/16, at 417-18; N.T. PCRA Hearing at 9-12, 14-
15, 27-30. Following the recess, trial counsel withdrew the motion for a
mistrial and requested instead that the trial court give a cautionary instruction
and admonish the prosecutor in front of the jury. N.T. Trial, 12/14/16, at
416-19. The trial court colloquied Appellant, and Appellant confirmed that he
wanted to withdraw the motion for a mistrial and that he had sufficiently
discussed the issue with counsel. Id. at 417-18. The trial court, in accordance
with counsel’s request, gave the following cautionary instructions and
admonition to the prosecutor:
And I want to caution you about one matter. And first of all, the
question that was, the last two questions that were asked, I’m
going to direct that they be, the responses be stricken. And you’re
not to consider the last couple questions by the officer. And I
caution you that it’s entirely up to a defendant in every criminal
trial whether or not he wishes to supply the police with information
or to testify. He has an absolute right founded on the Constitution
to remain absolutely silent. He does not have, he or she does not
have to do anything in response to anything. Our Constitution
guarantees that right. You must not draw any inference of guilt
from the fact that the defendant did not talk to police, talked to
the police or not. You cannot draw any inference of guilt from
those last few questions. Do you understand?
And I want to reiterate to Ms. Morgan [the prosecutor], as an
officer of this court, to please be cautious with regard to your
further questioning of this detective.
Id. at 420.
At the PCRA hearing, both Appellant and trial counsel testified
concerning their discussions of the mistrial motion before it was withdrawn
and trial counsel testified concerning his reasons for recommending
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withdrawal of the motion. Trial counsel testified that he advised Appellant
during the recess that if the mistrial motion were granted, Appellant would be
retried before a different jury and that the composition of the existing jury
was more favorable than a new jury was likely to be because the existing jury
had three minority jurors and Chester County juries usually have fewer
minority jurors. N.T. PCRA Hearing at 28-29. Trial counsel testified that he
believed that it was better to proceed with the existing jury and a cautionary
instruction because minority jurors would be more receptive to the defense’s
arguments that it is difficult to identify members of other races and ethnic
groups, a new jury was therefore likely to be less favorable, and the case was
going well. Id. at 28-29, 37. Appellant admitted that trial counsel advised
him that the mistrial motion should be withdrawn because the existing jury
was “probably the best, the best jury I could get” because it had three minority
jurors. Id. at 11-12, 17-18.
The undisputed evidence thus established that trial counsel’s advice to
withdraw the motion for mistrial was a strategic decision. Where the trial
counsel’s conduct is an informed strategic choice that could be reasonably
viewed at the time as advancing the defendant’s interests, the requirement
that counsel had no reasonable basis designed to effectuate his client’s
interests is absent and ineffective assistance of counsel cannot be shown, even
if in hindsight trial counsel’s strategy was not successful. Commonwealth v.
Williams, 141 A.3d 440, 463 (Pa. 2016); Michaud, 70 A.3d at 868.
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Trial counsel’s conclusion and advice that Appellant would be retried
before a different jury if the motion was granted was plainly reasonable. The
grant of a defendant’s motion for mistrial does not bar a retrial unless the
prosecutor’s improper conduct constituted an intentional attempt to provoke
a mistrial or there was prosecutorial misconduct so pervasive or egregious as
to show an intent to prevent the defendant from receiving a fair trial.
Commonwealth v. Washington, 198 A.3d 381, 387-88 (Pa. Super. 2018).
No such intentional, egregious, or pervasive misconduct was shown here.
Rather, the basis of the mistrial motion consisted of brief questioning on
redirect examination that the prosecutor contended was permissible based on
Appellant’s cross-examination of the witness. N.T. Trial, 12/14/16, at 412-
16. Such isolated improper reference to the defendant’s silence does not rise
to the level of intentional prosecutorial misconduct that precludes a retrial.
Commonwealth v. Lesko, 719 A.2d 217, 227 (Pa. 1998); Commonwealth
v. Redel, 484 A.2d 171, 176 (Pa. Super. 1984).
Because Appellant would be subject to trial before a new jury if a mistrial
was granted, trial counsel’s conclusion that it was better to proceed with a
jury that was more likely to be favorable to Appellant’s arguments and a
cautionary instruction had a reasonable basis designed to advance Appellant’s
interests. The advice to withdraw the mistrial motion therefore cannot
constitute ineffective assistance of counsel. Commonwealth v. Ogrod, 839
A.2d 294, 324-25 (Pa. 2003); Michaud, 70 A.3d at 868.
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Appellant testified that trial counsel told him that he would have to pay
additional attorney fees for the retrial, N.T. PCRA Hearing at 10-12, and
argues that his consent to withdraw the motion for a mistrial was therefore
not knowing, voluntary, and intelligent. Trial counsel, however, testified that
no such discussion of attorney fees occurred and that Appellant would not
have been charged additional attorney fees for a retrial if a mistrial had been
granted. Id. at 30-31, 35-37. In addition, the Commonwealth introduced
evidence that Appellant had previously been advised that an attorney would
be appointed to represent him without charge if he could not afford an
attorney. Id. at 24-25.
The trial court found trial counsel’s testimony credible and rejected as
incredible Appellant’s testimony that he was told that he would have to pay
additional attorney fees for a retrial. Trial Court Order, 10/25/18; Trial Court
Opinion at 30-31. The court further found that Appellant was aware that
counsel would be provided at a retrial at no cost if he could not afford to hire
an attorney. Trial Court Order, 10/25/18; Trial Court Opinion at 31-32. This
Court is bound by those credibility determinations. Smith, 181 A.3d at 1181;
Commonwealth v. Stewart, 84 A.3d 701, 708 (Pa. Super. 2013). Appellant
therefore did not show that his agreement to withdraw the motion for a
mistrial was unknowing, involuntary or unintelligent.
For the foregoing reasons, we conclude that Appellant did not show any
ineffective assistance of counsel by his trial counsel or error by the trial court
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in limiting the hearing or dismissing the PCRA petition. Accordingly, we affirm
the trial court’s order dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/19
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