Com. v. White, B. ( 2017 )

J-S59021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BILLY WHITE :
:
Appellant : No. 3130 EDA 2016
Appeal from the PCRA Order September 27, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0002430-2012
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 26, 2017
Billy White appeals pro se1 from the order entered September 27, 2016,
in the Court of Common Pleas of Montgomery County, that denied in part,
following a hearing, his first petition filed pursuant to the Pennsylvania Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546.2 White seeks collateral relief
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
Former Justice specially assigned to the Superior Court.
1
On November 18, 2016, following a hearing in accordance with
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the PCRA court entered
an order concluding that White made a knowing, intelligent and voluntary
waiver of his right to counsel for his direct appeal to this Court. The PCRA
court’s order of November 18, 2016 also granted court-appointed counsel’s
petition for leave to withdraw from representation of White in the PCRA court.
This Court, on December 19, 2016, granted counsel leave to withdraw from
representation of White in this appeal, based upon the PCRA court’s November
18, 2016 order.
2
The PCRA court’s order granted relief with regard to sentencing and denied
all other claims. This order is a final, appealable order. See Commonwealth
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from the judgment of sentence to serve an aggregate term of five to 10 years’
imprisonment, imposed after a jury found him guilty of burglary, criminal
trespass, terroristic threats, possession of marijuana, possession of drug
paraphernalia, and carrying a firearm without a license.3 Based upon the
following, we affirm in part, reverse in part, and remand for resentencing.
The parties are well acquainted with the facts of this case, which were
set forth by this Court in White’s direct appeal. See Commonwealth v.
White, 100 A.3d 294 (Pa. Super. 2014) (unpublished memorandum).
Before this Court, White raises the following 11 issues, which we
reproduce verbatim:
[1.] WAS TRIAL COUNSEL INFFECTIVE IN FAILING TO REQUEST
A MISSING WITNESS CHARGE FOR KENNETH TUGGLE WHOSE
NAME WAS PROVIDED IN THE AFFIDAVIT WHICH COULD BEEN
DISCOVERED SIMPLY BY READING THE AFFIDAVIT BEING THAT
COUNSEL CIRILLO NEVER COME TO VISIT THE PETITIONER OR
WENT OVER A STRATEGY BEFORE TRIAL BECAUSE OF HIS
ASSUMPTION WITNESSES WERE NOT WILLING TO TESTIFY?
[2.] WAS THE TRIAL COUNSEL INEFFECTIVE IN FAILING TO
CHALLENGE THE VERACITY AND THE ‘LACK OF PROBABLE CAUSE;
OF THE AFFIDAVIT BEING THAT THE PETITIONER WAS ARRESTED
SOLEY ON A ARREST WARRANT THAT DOES NOT EXIST THE
NIGHT IN QUESTION?
[3.] WAS TRIAL COUNSEL INEFFECTVE IN FAILING TO SUPPRESS
THE ILLEGAL ENTRY IN TO PETITIONER GARAGE AT HIS GIRL
FRIENDS HOUSE AND THE ILLEGAL SEIZURE OF PETITIONER’S
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v. Grove, 170 A.3d 1127 [2017 Pa. Super. LEXIS 662 *17-*18] (Pa. Super.
2017).
3
18 Pa.C.S. §§ 3502(a), 3503(a)(1)(i), and 2706(a)(1); 35 P.S. § 780-
113(a)(31) and (32); and, 18 Pa.C.S. § 6106(a)(1), respectively.
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MOTHER’S VEHICLE WITH OUT A WARRANT OR HER PERMITTING
AND STATEMENTS THAT WAS PROVIDED DAYS LATER?
[4.] WAS TRIAL COUNSEL INEFFECTIVE IN FAILING TO FILE POST
MOTIONS ON THE BEHALF OF PETITIONER ESPECIALLY AFTER
THE NEW DISCOVERED EVIDENCE OF OFFICER TRIMBUR
TESTIMONY AT TRIAL WAS DIFFERENT THEN DETECTIVE
JACKSON AFFIDAVIT AND [T.T.’S] NEW STATEMENT AND [B.T.’S]
SUPRIZED AMENDED ALLEGED INCIDENT?[4]
[5.] DID OFFICERS ‘LACK SUBJECT MATTER
JURISDICTION’/PROBABLE CAUSE TO ARREST THE PETITIONER
WHEN NO ARREST WARRANT DID NOT EXIST AND NO FELONIES
OR MISDEMEANOR WERE COMMITED IN THE PRESENCE OF THE
OFFICER THE NIGHT IN QUESTION?
[6.] WAS THERE A LACK OF “SUBJECT MATTER JURISDICTION”
WHEN PROPERLY PROSECUTING THE PETITIONER WHEN NO
INDICTMENT TOOK PLACE WHEREAS THOUGH THE BILL OF
INFORMATION IS INVAILD ON ITS FACE BECAUSE THE
INFORMATION DOES NOT SPECIFIY WHICH SUB SECTION
PARTICULAR MODE OR CONSTITUTION OR STATUE FOR
BURGLARY THE PETITIONER COMMITED, THAT'S A DEFECT?
[7.] DID THE TRIAL COURT HAVE JURISDICTION OVER THE
PETITIONER WHEN NO INDICTMENT TOOK PLACE AT THE
PRELIMINARY AND THE WITNESSES CHOSE NOT TO TESTIFY AND
EXERCISING THEIR 5TH AMENDMENT RIGHT IN WHICH VIOLATED
PETITIONERS CONSTITUTIONAL RIGHT TO CONFRONT HIS
ACCUSERS?
[8.] WAS THE TRIAL COUNSEL INEFFECTIVE IN FAILING TO LET
THE COURT AND THE JURY AND CLIENT KNOW HE PREVIOUSLY
REPRESENTED [T.T.] AND WAS CURRENTLY REPRESENTING HER
DAUGHTER FOR DRUG CHARGES?
[9.] DID THE PROSECUTION COMMIT A MISCONDUCT WHEN
ESTABLISHING PRIMA FACIE CASE AT THE PRELIMINARY WHEN
THE AFFIDAVIT AND STATEMENTS WAS PREPARED AFTER THE
ILLEGAL SEARCH AND THE CERTIFIED SEARCH WARRANT WAS
____________________________________________
4
Because the names of T.T. and B.T. were changed to initials in White’s direct
appeal, we do likewise.
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UNSIGNED AND NO ARREST EVEN EXISTED AT THAT TIME AND
WITNESSES DID NOT TESTIFY FOR THE COMMONWEALTH AND
WITH HOLD EVIDENCE BEFORE AND AFTER TRIAL?
[10.] DID THE POLICE COMMIT A MISCONDUCT BY PURPOSELY
MISLEADING REPORTS ON THE CRIMINAL JUSTICE PROCESS BY
FALSIFYING PERJURING FRAUD PREPPING AND TAMPERING WITH
WITNESSES?
[11.] DID THE TRIAL COURT COMMIT PROFESSIONAL
MISCONDUCT WHEN LEAD ATTORNEY CIRILLO AT THE P.C.R.A.
HEARING TO MAKE HIM EFFECTIVE AND PERSUAUDE HIM TO SAY
SOMETHING CIRILLO KNEW WAS UNTRUE AFTER HE JUST
PERJURED HIMSELF ON THE STAND?
White’s Brief at 4–5 (Statement of Questions Involved).5
Our standard of review of a PCRA court’s ruling is well settled:
Under the applicable standard of review, we must determine
whether the ruling of the PCRA court is supported by the record
and is free of legal error. The PCRA court’s credibility
determinations, when supported by the record, are binding on this
Court. However, this Court applies a de novo standard of review
to the PCRA court’s legal conclusions.
Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citations omitted).
Preliminarily, we note that White presents no argument regarding the
fifth, seventh, ninth, tenth, and eleventh issues identified in the Statement of
Questions Involved. Accordingly, these issues have been waived. See
Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super. 2008) (stating
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5
White timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement, after the PCRA granted an extension of time. White raised
52 claims in his concise statement. See White’s Concise Statement,
11/25/2016.
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an issue identified on appeal but not developed in an appellant’s brief is
abandoned and, therefore, waived).
Herein, White raises numerous claims to trial counsel’s ineffectiveness.
In our reviewing these ineffectiveness claims,
[w]e begin our analysis … with the presumption that counsel is
effective. To prevail on his ineffectiveness claims, Appellant must
plead and prove, by a preponderance of the evidence, three
elements: (1) the underlying legal claim has arguable merit; (2)
counsel had no reasonable basis for his action or inaction; and (3)
Appellant suffered prejudice because of counsel’s action or
inaction.
Spotz, supra, 18 A.3d at 259-60 (2011) (citations omitted).
White first claims trial counsel was ineffective for failing to request a
missing witness charge for Kenneth Tuggle.
The missing witness adverse inference rule has been summarized
as follows:
When a potential witness is available to only one of the
parties to a trial, and it appears this witness has special
information material to the issue, and this person's
testimony would not merely be cumulative, then if such
party does not produce the testimony of this witness, the
jury may draw an inference that it would have been
unfavorable.
Commonwealth v. Manigault, 501 Pa. 506, 510-11, 462 A.2d
239, 241 (1983) (quotations, citations and emphasis omitted).
This Court has delineated the circumstances which preclude
issuance of the instruction.
1. The witness is so hostile or prejudiced against the party
expected to call him that there is a small possibility of
obtaining unbiased truth;
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2. The testimony of such a witness is comparatively
unimportant, cumulative, or inferior to that already
presented;
3. The uncalled witness is equally available to both parties;
4. There is a satisfactory explanation as to why the party
failed to call such a witness;
5. The witness is not available or not within the control of
the party against whom the negative inference is desired;
and
6. The testimony of the uncalled witness is not within the
scope of the natural interest of the party failing to produce
him.
Commonwealth v. Evans, 444 Pa. Super. 545, 664 A.2d 570,
573-74 (Pa. Super. 1995). To invoke the missing witness
instruction against the Commonwealth, the witness must only be
available to the Commonwealth and no other exceptions must
apply. Commonwealth v. Culmer, 413 Pa. Super. 203, 604
A.2d 1090, 1098 (Pa. Super. 1992).
Commonwealth v. Boyle, 733 A.2d 633, 638-39 (Pa. Super. 1999).
Here, White failed to prove that Kenneth Tuggle was only available to
the Commonwealth. Further, the testimony of Kenneth Tuggle was
comparatively unimportant and cumulative. See N.T., 9/14/2016, at 47
(Lieutenant Jackson explaining, “the only information [Kenneth Tuggle] had
was that Billy White was standing outside, but we already confirmed that when
police arrived and Billy White was outside the home.”). As such, a missing
witness instruction would not have been available. Therefore, White’s first
claim fails.
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With regard to the second and fourth issues, which are ineffectiveness
claims, these issues were not raised in the PCRA Court. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”). Even if these claims were raised below, White failed
to include these claims in his Pa.R.A.P. 1925(b) statement. See White’s
Concise Statement, 11/25/2016, at 4 (“Trial Counsel’s ineffectiveness). Rule
1925(b)(vii) provides: “Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are waived.”
Therefore, the claims would be waived on this basis. Accordingly, no relief is
due.
The third and eighth issues are also ineffectiveness claims, and we
address them sequentially. In the third issue, White contends trial counsel
was ineffective in failing to file a suppression motion regarding the search of
his car. In the eighth issue, White contends trial counsel was ineffective for
representing White when counsel had a conflict of interest based upon his
representation of a witness, T.T., and her daughter, B.T.
With respect to the third issue, where “an assertion of ineffective
assistance of counsel is based upon the failure to pursue a suppression motion,
proof of the merit of the underlying suppression claim is necessary to establish
the merit of the ineffective assistance of counsel claim.” Commonwealth v.
Jones, 942 A.2d 903, 909 (Pa. Super. 2008).
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The PCRA court explained the suppression issue revolved around the
assertion that the search warrant was unsigned by the issuing authority
and/or there was a problem with the date the warrant was signed. The PCRA
court determined the suppression issue was meritless because testimony at
the PCRA hearing belied these contentions. The PCRA court found that
Detective Michael Jackson testified credibly that the search warrant date read
the 27th and not the 22nd as it appeared to PCRA counsel, and that he waited
for the issuing authority, Judge Cathleen Rebar, to sign the warrant before he
began searching White’s car. The PCRA court concluded any suppression
motion would have been denied, and we find no error in the PCRA court’s
determination. See PCRA Court Opinion, 1/3/2017, at 19. Therefore, White’s
third claim fails.
Nor do we find merit in White’s eighth claim, that trial counsel was
ineffective because he had a conflict of interest because he represented
Commonwealth witness, T.T., and her daughter, B.T.
[T]o establish a conflict of interest, an appellant must show that
“counsel actively represented conflicting interests[,] and the
actual conflict adversely affected counsel's performance.”
Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 563 (Pa.
2009) (citing Spotz V, 896 A.2d at 1232); see also
Commonwealth v. Weiss, 604 Pa. 573, 986 A.2d 808, 818 (Pa.
2009) (rejecting the view that counsel's representation of a client
continues until such time as the client's sentence expires, and
requiring a petitioner who alleges a conflict of interest rooted in
his counsel's obligation to a former client to establish that the
conflict adversely affected counsel's performance).
Spotz, supra, 18 A.3d at 268.
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The PCRA court found White waived this ineffectiveness claim with
respect to B.T. because this issue was raised for the first time on appeal. The
PCRA court further opined that with respect to trial counsel’s previous
representation of T.T., trial counsel credibly testified at the evidentiary hearing
that his previous representation of T.T. did not affect his cross-examination of
her at White’s trial. The PCRA court concluded White had established neither
that his counsel represented conflicting interests, nor that the alleged conflict
adversely affected counsel’s performance. See PCRA Court Opinion,
1/3/2017, at 17–18. We find the PCRA court has properly disposed of this
claim, and we conclude White’s argument warrants no further discussion by
this Court. Therefore, White’s eighth claim fails.
With regard to the sixth issue, regarding subject matter jurisdiction
based upon an alleged defect in the charging document, White argues the
“information is invalid on its face because the information does not specify
which sub section particular mode or constitution or statue for burglary the
petitioner committed that’s a defect.” White’s Brief at 26 (verbatim).
The courts of common pleas have statewide jurisdiction in all cases
arising under the Crimes Code. Commonwealth v. Jones, 929 A.2d 205,
210 (Pa. 2007) (citation omitted). The Commonwealth invokes that
jurisdiction when it files a formal and specific accusation of the crimes
charged. Id. at 211-212. Although the Information is not included in the
certified record, it is evident from this Court’s prior memorandum, which
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reproduces the burglary charge set forth in the Information, that White was
properly charged with burglary under extant 18 Pa.C.S. § 3502(a). See
Commonwealth v. White, 100 A.3d 294 (Pa. Super. 2014) (unpublished
memorandum, at 15 n.5). Therefore, this issue is meritless.
Nevertheless, while the claims presented by White in this appeal are
either waived or meritless, we recognize the PCRA court found merit in White’s
claim that “trial counsel was ineffective for failing to object to White’s illegal
mandatory minimum sentence of five to ten years” imposed on the burglary
conviction, pursuant to 42 Pa.C.S. § 9712. PCRA Court Opinion, 1/3/2017, at
20. The PCRA court opined:
In this case, White was sentenced on February 8, 2013 and he
was sentenced pursuant to a mandatory minimum in Section
9712. White did file a timely appeal, which was decided on March
4, 2014. White’s direct appeal was pending at the time Alleyne
[v. United States, 133 S. Ct. 2151 (U.S. 2013)] was decided on
June 17, 2013. Therefore, the holding of Alleyne applies.[6] See
Commonwealth v. Ruiz, 131 A.3d 54, 58 (Pa. Super. 2015)
(defendant was entitled to the benefit of Alleyne where he raised
the claim in a timely PCRA petition and his judgment of sentence
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6
In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S.Ct. at
2155. Applying Alleyne, the courts of this Commonwealth have determined
our mandatory minimum sentencing statutes are unconstitutional where the
language of those statutes “permits the trial court, as opposed to the jury, to
increase a defendant’s minimum sentence based upon a preponderance of the
evidence” standard. Commonwealth v. Newman, 99 A.3d 86, 98 (Pa.
Super. 2014) (en banc) (invalidating 42 Pa.C.S. § 9712.1), appeal denied,
632 Pa. 693, 121 A.3d 496 (Pa. 2015). See Commonwealth v. Valentine,
101 A.3d 801 (Pa. Super. 2014) (declaring 42 Pa.C.S. § 9712 unconstitutional
under Alleyne and Newman).
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was still pending on direct review when Alleyne was handed
down). Accordingly, White is entitled to a new sentencing hearing.
Id. at 21. The PCRA court “requests a limited remand so that White might be
granted a new sentencing hearing.” Id. at 1. We agree with the PCRA court,
and note the Commonwealth concedes that White is entitled to resentencing.
See Commonwealth’s Brief at 8.
Accordingly, the order of the PCRA court is affirmed in part, reversed in
part, and this case is remanded for resentencing.
Order affirmed in part, reversed in part. Case remanded for
resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/26/2017
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