Com. v. Gordon, Sr., J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JERMAINE R. GORDON, SR.
Appellant No. 439 MDA 2015
Appeal from the PCRA Order February 17, 2015
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000383-2013
BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED JULY 08, 2016
Jermaine R. Gordon, Sr. appeals, pro se,1 from the order entered on
February 17, 2015, in the Court of Common Pleas of Franklin County,
denying him relief on his first petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. In this timely appeal, Gordon
raises eight issues regarding trial court error, prosecutorial misconduct,
ineffective assistance of trial counsel, ineffective assistance of PCRA counsel,
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*
Retired Senior Judge assigned to the Superior Court.
1
Gordon’s counsel filed a Turner/Finley no merit letter with the PCRA
court. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). His motion to
withdraw as counsel was granted by the trial court. As required, Gordon
was informed of his right to obtain new counsel. He opted to represent
himself in this appeal.
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and PCRA court error. After a thorough review of Gordon’s brief,2 the
certified record and relevant law, we affirm.
In the underlying matter, Gordon was tried before a jury on a variety
of charges related to his assault of his estranged wife. Essentially, the
victim testified that Gordon, under the guise of reconciliation, invited her to
dinner, then tried to force her to smoke a “blunt”, forced her to undress, and
then beat her with his fists, a bottle, and iron, and a drinking glass. The
victim suffered various abrasions, a bite to her back and a gash on her
forehead.3 The jury found him guilty of aggravated assault attempting to
cause serious bodily injury, aggravated assault causing bodily injury with a
deadly weapon, false imprisonment, simple assault, terroristic threats,
possession of a small amount of marijuana and possession of drug
paraphernalia.4 He received an aggregate sentence of 138 to 276 months’
incarceration. His direct appeal afforded him no relief. See
Commonwealth v. Gordon, 105 A.3d 800 (Pa. Super. 2014) (unpublished
memorandum). He then filed this, timely, PCRA petition. The petition raised
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2
The Commonwealth opted not to file an appellee’s brief.
3
Gordon testified on his own behalf that he did not assault his wife. Rather,
after having consensual sex, she attempted to steal more than $1,000 from
him and tried to escape by climbing out the window while only partially
clothed. However, he pulled her back inside by her feet, at which time she
bumped her head on the windowsill.
4
18 Pa.C.S. §§ 2702(a)(1), 2702(a)(4), 2903(a), 2701(a)(1), 2706(a)(1),
35 P.S. §§ 780-113(a)(31)(i) and 780-113(a)(32) respectively.
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two claims: (1) trial “counsel failed to conduct a prompt investigation of the
circumstances of the case”, and (2) “Prosecution sought out to charge
defendant with simple assault victim false testimony had defendant charges
change to aggravated assault.” See PCRA Petition, 10/22/14, p. 3.
Counsel was appointed and ultimately filed a Turner/Finley no merit
letter and motion to withdraw as counsel. In the Turner/Finley letter,
counsel addressed the issues of ineffective assistance of trial counsel
regarding failure to object to the presentation of false evidence, 5 failure to
investigate and failure to challenge the sentence as excessive.
After proper notice, the petition was denied without a hearing and
counsel was granted leave to withdraw. Gordon did file a response to the
notice of intent to dismiss without a hearing. The PCRA court found
Gordon’s response to be vague and determined no hearing was required.
See Pa.R.Crim.P. 907(1) (regarding dismissal of a PCRA petition without a
hearing).
After his petition was denied, Gordon appealed and raised seven issues
in his Pa.R.A.P. 1925(b) statement of errors complained of on appeal. These
issues were: 1) insufficient evidence to support his convictions, 2) ineffective
assistance of trial counsel in failing to subpoena treating physician to
impeach the victim’s testimony, 3) ineffective assistance of trial counsel for
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5
This claim produced a related claim of insufficiency of the evidence.
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failing to challenge credibility of victim with the affidavit of probable cause,
4) ineffective assistance of counsel for failing to conduct pre-trial
investigation as to who leased the apartment where the incident took place
in order to prove Gordon did not possess the drugs, 5) the Commonwealth
intentionally failed to call treating physician, 6) ineffective assistance of trial
counsel for failing to file post-sentence motion regarding excessive sentence,
and 7) PCRA court error in dismissing the petition without a hearing.
In his pro se appellant’s brief, Gordon has raised eight issues. These
are: 1) trial court error in holding preliminary hearing when Gordon sought a
continuance to obtain new counsel, 2) trial court error in allowing the
Commonwealth to amend the charges after the preliminary hearing, thereby
allowing a new count of aggravated assault without having presented a
prima facie case, 3) ineffective assistance of counsel for failing to conduct a
prompt investigation, 4) ineffective assistance of counsel for failing to file a
motion to suppress evidence, 5) ineffective assistance of counsel for failing
to present medical report or expert medical testimony, 6) ineffective
assistance of PCRA counsel for filing a Turner/Finley letter, 7) prosecutorial
misconduct for presenting false evidence and testimony during the trial, and
8) PCRA court error in dismissing the petition without a hearing.
There appears to be only one that was raised before both the PCRA
court and on appeal. That is ineffective assistance of counsel for the failure
to conduct a prompt investigation regarding “ownership” of the apartment.
Because none of the other issues in Gordon’s brief was preserved before the
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PCRA court, they have been waived.6 Similarly, any issues raised before the
PCRA court, but were not preserved in the 1925(b) statement and/or in the
appellant’s brief have been abandoned.7
Accordingly, we will examine the only properly preserved issue. Our
standard of review of an order denying PCRA relief is well settled.
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 decision is free of legal error. The
PCRA court's findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Ruiz, 131 A.3d 54, 57 (Pa. Super. 2015) (citation
omitted).
To plead and prove ineffective assistance of counsel a petitioner
must establish: (1) that the underlying issue has arguable merit;
(2) counsel's actions lacked an objective reasonable basis; and
(3) actual prejudice resulted from counsel's act or failure to act.
The failure to meet any of these aspects of the ineffectiveness
test results in the claim failing.
Commonwealth v. Stultz, 114 A.3d 865, 880 (Pa. Super. 2015) (citation
omitted).
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6
“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.” Pa.R.A.P. 302(a); Commonwealth v. York, 465
A.2d 1028, 1032 (Pa. Super. 1983).
7
Commonwealth v. Frank, 640 A.2d 904, 907 (Pa. Super. 1994) (failure
to brief an issues results in abandonment of that issue); Commonwealth v.
Keysock, 345 A.2d 767, 770 (Pa. Super. 1975) (Claims preserved but not
pursued on appeal have been abandoned).
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Gordon claims trial counsel was ineffective for failing to conduct a
prompt pre-trial investigation into the identity of the legal tenant of the
apartment. Gordon posits that by showing his name was not on the lease, he
would have demonstrated the drugs and drug paraphernalia found in the
apartment were not his. Gordon has provided no legal support for this
argument. Here, the victim testified that upon her arrival in the apartment,
Gordon tried to force her to smoke a “blunt” filled with marijuana and
cocaine. See N.T. Trial 8/2/2013, at 25. That testimony placed Gordon
personally in control of the drugs and paraphernalia, regardless of who the
legal tenant of the apartment was or even whether that person had been the
purchaser of the drugs. The PCRA court correctly noted that dominion and
control of the small amount of marijuana and drug (cocaine) spoons is not
dependent upon “ownership” of the apartment.8 See PCRA Court Opinion,
4/23/2015, at 18. Therefore, based on the victim’s testimony, Gordon can
show no prejudice due to trial counsel’s failure to show his name was not on
the lease. Accordingly, his claim of ineffective assistance of counsel must
fail.
In light of the foregoing, Gordon is not entitled to relief. We note that
it has been difficult to attempt to follow Gordon’s claims from their inception
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8
See Commonwealth v. Valette, 613 A.2d 548, 550 (Pa. 1992)
(constructive possession demonstrated by dominion and control over the
illegal substance).
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in the pro se PCRA petition through his appellant’s brief. We located only
one constant issue throughout the PCRA process. However, the PCRA court
authored a comprehensive 28-page opinion in response to Gordon’s claims.
This opinion addresses the wide variety of issues Gordon raised without
necessarily addressing whether the issue had been waived. To the extent
that we may have misinterpreted any of Gordon’s claims, we rely, in the
alternative, upon the sound analysis provided by the PCRA court in its April
23, 2015 Opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
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