Com. v. Ivory, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MARK IVORY,
Appellant No. 651 WDA 2014
Appeal from the PCRA Order Entered April 8, 2014
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000125-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 7, 2015
Appellant, Mark Ivory, appeals from the order denying his petition for
collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. We affirm.
On February 21, 2012, Appellant was charged with possession of a
controlled substance with intent to deliver (“PWID”), possession of a
controlled substance, and criminal conspiracy. On May 2, 2012, a jury found
Appellant guilty of all charges, and on August 17, 2012, the trial court
imposed an aggregate sentence of four to fifteen years of incarceration.
Appellant filed a timely post-sentence motion seeking modification of his
sentence. The trial court denied Appellant’s motion on September 11, 2012,
and October 5, 2012, Appellant filed a timely notice of appeal. On April 1,
2013, this Court affirmed Appellant’s judgment of sentence.
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Commonwealth v. Ivory, 1555 WDA 2012, 75 A.3d 540 (Pa. Super. filed
April 1, 2013) (unpublished memorandum).
On July 22, 2013, Appellant filed a timely PCRA petition. The PCRA
court appointed counsel, and on November 9, 2013 and December 12, 2013,
the PCRA court held hearings on Appellant’s petition. In an order filed on
April 8, 2014, the PCRA court denied Appellant’s petition. This timely appeal
followed.
On appeal, Appellant raises the following issue for this Court’s
consideration:
I. Whether the PCRA Court erred in not finding Trial Counsel
to have been ineffective for eliciting otherwise inadmissible
evidence of [Appellant’s] criminal history/pending charges,
and for failing to request [a] cautionary instruction from
the Trial Court.
Appellant’s Brief at 2.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
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When considering an allegation of ineffective assistance of counsel,
counsel is presumed to have provided effective representation unless the
PCRA petitioner pleads and proves that: (1) the underlying claim is of
arguable merit; (2) counsel had no reasonable basis for his or her conduct;
and (3) Appellant was prejudiced by counsel’s action or omission.
Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). “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).
An allegation of ineffective assistance of counsel will fail if the petitioner
does not meet any of the three prongs. Commonwealth v. Williams, 863
A.2d 505, 513 (Pa. 2004). Thus, when it is clear that an appellant has failed
to meet the prejudice prong of an assertion of ineffective assistance of
counsel, the claim may be disposed of on that basis alone, without a
determination of whether the first two prongs have been met.
Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005). “The
burden of proving ineffectiveness rests with Appellant.” Commonwealth v.
Rega, 933 A.2d 997, 1018 (Pa. 2007).
Appellant contends that counsel was ineffective at trial for eliciting
testimony that referenced his criminal history. Appellant’s Brief at 3.
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Specifically, Appellant refers to trial counsel’s cross-examination of
Commonwealth witness Detective Kevin Price:
[Appellant’s Counsel] Q: Do you have those papers of
[Appellant’s]?
A: I called my office to see if you picked them up and they were
up? [sic] You haven’t picked them up, they are sitting in my
office ….
Q: Do you have an inventory of what those papers are, did you
make one?
A: I know what they are, yes.
Q: Did you write an inventory of what they were that you were
giving to me, did you have one available?
A: No. We had personal papers, and I believe we might have put
what the papers were. I didn’t go through those papers, I didn’t
like analyze those. I didn’t want to analyze them. I didn’t want
to look at them.
Q: What indication did you have to believe they belonged to
[Appellant]?
A: His name was on them, several of them.
Q: They will be available this afternoon?
A: If you want to put it in evidence, that’s fine like I said, there
was a reason why I didn’t go through the papers, I didn’t want
to. I didn’t feel it was proper for me to do that.
N.T., 5/1/12, at 92-93. The cross-examination continued as follows:
Q: I understand. This bag of these personal papers and the
items that you described that the box with the wax bags were in,
how was it found in the crib or the play pen?
A: It was found folded down, the actual crib/play pen was folded
down on the ground and it was sitting sort of in the middle of it
and the bag, the bag was there.
Q: When you looked, you could see?
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A: I opened up the bag, I believe, I opened up the bag, and I
immediately saw these personal papers, so I was a little le[e]ry.
Q: Kind of digging through with your eyes closed?
A: Not my eyes closed, no, I tried not to look at the contents of
what was written on the papers because again, I felt that it was
not proper for me to do that.
Q: Not really the focus of your search basically as well?
A: It wasn’t proper. I didn’t, I saw these papers and I am
thinking I don’t think I should look at these. That’s what I
thought. I moved these papers aside and they were the items
and I took whatever items that I could put the personal papers
back in, and I believe closed up the bag a little bit and we took
the bag.
Q: I have a copy of your inventory with regard to that contents
search and seized property, and there is some notation in the
right-hand side, AB, VA, these would be initials of the other
agents that were with you?
A: That’s who found or again seized the property or what not,
but again, I was there during the search and the items being
found. I didn’t claim the bag that we found, I don’t know who
would have claimed the bag as far as finding it.
Q: I was just looking through this inventory, sorry, I saw KP on
it?
A: I am the one that filled it out, but when we found that
bag, Mr. Kasaback, and God, I don’t know what I can say
or what I am allowed to say.
Q: I am just trying to get this clear.
A: We treated that bag like very private because we didn’t want
to be accused of things and those papers, we were very careful
with them. We didn’t want to go through those. We didn’t want
to be accused of going through them.
Q: I guess the inference here is if these items are found and you
are saying they are consistent with the packaging of heroin and
his personal papers are found in that bag, I guess why would
they be turned over and not kept as part of evidence in this case
by showing there was an inference from his property and these
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other items, which would be the inference of his property as
well?
A: Are you talking about why I was turning the papers over?
Q: Yes.
A: You requested that property be turned over, they were court
papers. They were court documents, they were criminal
charges, they were everything that as far as his cases go, his
personal notes as far as how he was going to defend his cases.
That’s what was there.
Q: Do you know whether those items were cataloged or
inventoried?
A: I did not go through those items, I know what. I saw what
was were [sic], we handled them very carefully. You were to
pick them up, you never came and picked them up. On three
different times, I also have an e-mail from the prison that
[Appellant] was requesting those papers because they were his
court documents. Those were his criminal charges that he
has, he’s facing, okay. And I responded that he was to get
ahold of you, I spoke to you to come get them. We have them,
they are on the way down. I will be more than happy to turn
them over. If you would like me to document them and go
through the steps and read them, and I will do that.
Q: I just wondered why that wasn’t done?
A: I was not getting into the defense of his criminal charges that
he’s facing because I don’t want to be accused of tampering with
the case or interfering in how attorney-client privilege type
thing. That’s his personal stuff. I want nothing to do with how
he defends any criminal case. I don’t want any part in that. I
don’t want to know.
Q: I understand.
Id. at 97-100 (emphasis added).
Following this exchange, Appellant’s trial counsel asked to approach
the bench for a sidebar conference, and the following exchanged occurred:
[Appellant’s Trial Counsel]: I am going to move for a mistrial.
Maybe we don’t want to do it right here.
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The Court: Right here.
[Appellant’s Trial Counsel]: Now, he has given the inference
there are prior criminal charges. Maybe you can, I didn’t ask
about the personal papers, I don’t think it was necessary to talk
about defenses and further charges. It is basically telling the
jury he has had prior charges at the time he found these, there
were not charges filed in that case.
[Assistant District Attorney]: Our position would be the
detective’s testimony made it clear the papers seemed to do
with charges with respect to this case, no other cases. I don’t -
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[Appellant’s Trial Counsel]: He did not say that.
[Assistant District Attorney]: I don’t think that point, I don’t
think there was a reference or an inference there were other
cases pending, is my recollection of the testimony.
[Appellant’s Trial Counsel]: First, he didn’t know what they were,
and he gets on the stand and of everything that was in that bag,
he said there were criminal charges in that bag, which is what he
found. There are no charges [pending] at that time on this case,
prior ones. The jury knows he has prior charges, prior defenses,
prior cases.
The Court: I am going to say to you, Detective Price went out of
his way to try not to answer that question which, quite frankly, is
uncharacteristic of him. He went above and beyond not to get
into that area. You asked the question and you asked the same
question once too often and so, he threw in the towel.
[Appellant’s Trial Counsel]: I didn’t ask what the contents were.
The Court: The motion is denied.
[Appellant’s Trial Counsel]: I just asked about whether they
were inventoried.
The Court: The motion is denied.
[Appellant’s Trial Counsel]: Okay.
Id. at 100-102.
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We will not speculate as to what counsel hoped to achieve with this
line of questioning. Our focus is the three-pronged test set forth in Pierce,
and we conclude that Appellant has failed to establish the prejudice prong.
As set forth above, in order to establish prejudice, the 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. Reed, 42 A.3d at 319. Here, while Detective Price undoubtedly
referred to court and arrest papers containing Appellant’s name, Appellant,
himself, testified to these same facts. The PCRA court explained as follows:
Here, [Appellant] has failed to establish that there is a
reasonable probability that the verdict would have been different
absent Price’s testimony. [Appellant] himself put the issue of
other criminal charges and his criminal record before the jury
through his own testimony. In his testimony [Appellant] stated
“at this time, I had come from, I was locked up, and I
was, they sent me to the halfway house in Johnstown.”
N.T. 5/12/2012 p. 6, 32. [Appellant] further admitted to
participating in a drug conspiracy relative to marijuana. Id. at
81. Even absent Price’s testimony the jury would have learned
about other charges from [Appellant] himself.
PCRA Court Opinion, 4/8/14, at 6 (emphasis added). Thus, we cannot
conclude that the outcome of Appellant’s trial would have been any different.
Appellant, in his own testimony, raised the issue of his incarceration and
criminal involvement in drug activity.
Furthermore, we conclude that even if Detective Price had never
mentioned Appellant’s court papers, the outcome of Appellant’s trial would
have been the same. The evidence admitted at trial overwhelmingly
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supported Appellant’s conviction. Dale Blough, the father of Appellant’s
girlfriend, testified that Appellant was involved in packaging and selling
heroin. N.T., 5/1/12, at 46. Kayla Younkers, Appellant’s girlfriend, testified
that while Appellant lived in her house, he was packaging and selling heroin
with another individual named Joseph Quinn. Id. at 108. Ms. Younkers
testified that detectives came to her house, and she gave consent to search
her house. Id. at 110. During the search, the detectives found heroin. Id.
at 110, 151. Additionally, Appellant’s co-conspirator, Joseph Quinn, testified
that he transported heroin for Appellant. Id. at 170. Mr. Quinn also
testified that he and Appellant packaged the heroin together for sale. Id. at
171, 179. Therefore, even if the challenged testimony had not been
presented, we cannot conclude that there is any probability the outcome of
the proceedings would have been different.
For the reasons set forth above, Appellant is entitled to no relief.
Accordingly, we affirm the April 8, 2014 order denying Appellant’s PCRA
petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/2015
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