Com. v. Jackson, T. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
THEODORE JACKSON :
:
Appellant : No. 806 EDA 2021
Appeal from the PCRA Order Entered March 31, 2021
In the Court of Common Pleas of Delaware County
Criminal Division at No CP-23-CR-0006588-2018
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED DECEMBER 9, 2022
Appellant, Theodore Jackson, appeals from the order entered on April 1,
2021 in the Court of Common Pleas of Delaware County, denying his petition
for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. Appellant claims trial counsel ineffectiveness for
failure to file a motion to suppress and argues his guilty plea was not
knowingly and intelligently entered. Upon review, we affirm.
The record reflects that on July 10, 2019, after a jury was empaneled
but before his trial began, Appellant entered into an open guilty plea to one
count each of possession of a controlled substance (methyl fentanyl),
possession with intent to deliver (“PWID”) (methyl fentanyl), possession of
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* Retired Senior Judge assigned to the Superior Court.
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drug paraphernalia, and criminal use of a communication facility (“CUCF”).1
Following an on-the-record colloquy, the trial court imposed a sentence of five
to 14 years in a state correctional institution for possession of a controlled
substance, a consecutive term of two years’ probation for PWID, and
concurrent terms of probation of one and two years respectively for the
remaining counts. Appellant did not file post-sentence motions or a direct
appeal.
On August 3, 2020, Appellant pro se filed a timely first PCRA petition.
On August 10, 2020, counsel was appointed with instruction to file an
amended petition or a “no-merit” letter, pursuant to Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).
On December 21, 2020, counsel filed a Finley no-merit letter and an
application to withdraw as counsel. Appellant filed a 17-page letter in
response on or about February 3, 2021.
On March 10, 2021, the PCRA court issued a notice of its intent to
dismiss Appellant’s petition in accordance with Pa.R.Crim.P. 907. The court
dismissed the petition by order entered on April 1, 2021. This timely appeal
followed. The PCRA court did not order Appellant to file a statement of errors
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1 35 P.S. §§ 780-113(a)(16), 780-113(a)(30), 780-113(a)(32), and 18
Pa.C.S.A. § 7512(a), respectively. The remaining charges against Appellant
were dismissed pursuant to the plea agreement. See Notes of Testimony,
7/10/19, at 5.
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complained of on appeal pursuant to Pa.R.A.P. 1925 but did issue an opinion
on November 16, 2021, setting forth its reasons for dismissing the petition. 2
In his brief, Appellant lists five issues, which we repeat here verbatim,
as follows:
(1) Did the PCRA commit error when it didnt address any of the
Appellants issues stated in his PCRA?
(2) Did the PCRA commit error dismissing Appellants PCRA
without a evidentiary hearing on the material facts?
(3) Can a petitioner plead guilty to a crime there is no evidence
for?
(4) IS the PCRA courts decions free of error and based on fact
supported by the record?
(5) Is counsel ineffective for not filing a motion to suppress
when ask by defendant and constitutionally void on its face?
Appellant’s Brief at 3.
We first note that Appellant’s brief does not conform to the Pennsylvania
Rules of Appellate Procedure, and in particular, Pa.R.A.P. 2119(a). While we
recognize that Appellant is pro se, that does not excuse him from compliance.
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2 In its brief, the Commonwealth acknowledged, “As [Appellant] notes, the
PCRA court’s opinion makes some significant mistakes” concerning the date
and terms of Appellant’s guilty plea. Commonwealth Brief at 1 n.1. In
addition, the opinion—after repeating verbatim the language included in the
Rule 907 Notice, includes a paragraph (PCRA Court Opinion, 11/16/21, at 3
¶ 1), which is unrelated to Appellant’s case and appears to have been
mistakenly cut and pasted from another document. Despite the careless
drafting errors, the opinion explains the basis for the court’s order dismissing
Appellant’s petition. And, as the Commonwealth recognizes, Appellant “is
appealing from the PCRA court’s dismissal order, not the opinion drafted
months later.” Commonwealth Brief at 1 n.1.
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As this Court observed in Commonwealth v. Lyons, 833 A.2d 245 (Pa.
Super. 2003),
[A]though this Court is willing to construe liberally materials filed
by a pro se litigant, pro se status generally confers no special
benefit upon an appellant. Accordingly, a pro se litigant must
comply with the procedural rules set forth in the Pennsylvania
Rules of the Court. This Court may quash or dismiss an appeal if
an appellant fails to conform with the requirements set forth in
the Pennsylvania Rules of Appellate Procedure. For example,
The argument [section] shall be divided into as many parts
as there are questions to be argued; and shall have as the
head of each part—in distinctive type or in type distinctively
displayed—the particular point treated therein, followed by
such discussion and citation of authorities as are deemed
pertinent.
Pa.R.A.P. 2119(a).
Id. at 251-52 (citations omitted).
As reflected above, Appellant has set forth five questions to be argued.
However, in the argument section of his brief, he provides the following two
headings:
A. The PCRA court erred when it stated trial counsel was not
ineffective.
B. The PCRA court erred when it stated [Appellant’s] open plea
was not [sic] knowing and intelligent.
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Appellant’s Brief at 8, 9-10. Construing Appellant’s pro se brief liberally, we
will address his argument in the interest of justice, analyzing the arguments
raised under those two headings.3
On appeal from the denial of a PCRA petition, we “examin[e] whether
the PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012) (citation omitted). “Our scope of review is limited
to the findings of the PCRA court and the evidence of record, viewed in the
light most favorable to the party who prevailed in the PCRA court
proceeding.” Id.With respect to claims of ineffective counsel, our Supreme Court has
stated:
It is well-settled that counsel is presumed to have been effective
and that the petitioner bears the burden of proving counsel’s
alleged ineffectiveness. Commonwealth v. Cooper, 596 Pa.
119, 941 A.2d 655, 664 (2007). To overcome this presumption,
a petitioner must establish that: (1) the underlying substantive
claim has arguable merit; (2) counsel did not have a reasonable
basis for his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance, “that is,
a reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different.” Id. A
PCRA petitioner must address each of these prongs on
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3 We note that Appellant identified the lack of an evidentiary hearing among
his statement of questions. However, he did not develop the issue in the
argument section of his brief. Therefore, the issue is waived.
Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016) (“issues
raised in a Brief’s Statement of Questions Involved but not developed in the
Brief’s argument section will be deemed waived”).
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appeal. See Commonwealth v. Natividad, 595 Pa. 188, 938
A.2d 310, 322 (2007) (explaining that “appellants continue to
bear the burden of pleading and proving each of
the Pierce[4] elements on appeal to this Court”). A petitioner’s
failure to satisfy any prong of this test is fatal to the
claim. Cooper, 941 A.2d at 664.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).
Appellant first argues that the PCRA court erred when it stated counsel
was not effective. Appellant’s Brief at 8. While not specifically phrased in
terms of counsel’s failure to file a motion to suppress, we read his argument
to be claim of error in that respect, recognizing that Appellant claimed
ineffectiveness for failure to file a suppression motion in his statement of
questions.5
In Commonwealth v. Watley, 153 A.3d 1034 (Pa. Super. 2016), this
Court reiterated:
This Court has previously found that “[t]he failure to file a
suppression motion under some circumstances may be evidence
of ineffective assistance of counsel.” Commonwealth v.
Metzger, 295 Pa. Super. 267, 441 A.2d 1225, 1228 (1981); see
also Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379,
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4 Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001) (reiterating the
well-settled elements of the ineffectiveness test, as rephrased in Cooper and
quoted in this excerpt from Wholaver).
5 In its brief, the Commonwealth similarly read Appellant’s issue as one
involving the motion to suppress, as reflected in its counter-statement of
questions involved as follows:
1. Was trial counsel ineffective for failing to file a motion to
suppress the contraband recovered by police where
[Appellant’s] proposed suppression claim went to the weight of
the evidence, not its admissibility?
Commonwealth Brief at 1.
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1381[-82] (1979). “However, if the grounds underpinning that
motion are without merit, counsel will not be deemed ineffective
for failing to so move.” Metzger, 441 A.2d at 1228. “[T]he
defendant must establish that there was no reasonable basis for
not pursuing the suppression claim and that if the evidence had
been suppressed, there is a reasonable probability the verdict
would have been more favorable.” Commonwealth v. Melson,
383 Pa. Super. 139, 556 A.2d 836, 839 (1989).
Id. at 1044.
As the Commonwealth recognizes,
“The point of a motion to suppress physical evidence” is to exclude
evidence that was acquired in a way that violated the defendant’s
constitutional rights. Commonwealth v. Millner, 888 A.2d 680,
693 (Pa. 2005). The strength of the evidence is immaterial; “the
focus is upon the manner of acquisition, and how that manner of
acquisition implicated the defendant’s constitutional rights.” Id.Commonwealth Brief at 8.
Appellant acknowledges that constitutional rights must be implicated,
stating, “Where a defendant claims a guilty plea was unlawfully induced by
counsel[’]s failure to seek suppression of illegally obtained incriminating
evidence the defendant must establish there was a constitutional basis to
challenge the incriminating evidence.” Appellant’s Brief at 8 (citing
Commonwealth v. Nelson, 574 A.2d 1107 (Pa. Super. 1990)). However,
Appellant does not advance any cognizable argument with respect to any
violation of constitutional rights.6
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6 In his no-merit letter, counsel addressed the issue of constitutional rights,
noting, “With regard to possible alleged violations of the law and Constitutions
of Pennsylvania and the United States, my investigation reveals no facts
(Footnote Continued Next Page)
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As the Commonwealth observes, Appellant’s suppression argument
focuses not on the manner of acquisition, but rather on his assertions that he
did not own or have possessory interest in the apartment where the drugs
were located, that the phone forming the basis of the CUCF offense was not
in his name, and that the drugs and paraphernalia did not belong to him.
Because these issues are questions of possession for the jury, and not a
constitutional basis supporting a suppression motion, Appellant cannot
demonstrate that counsel lacked a reasonable bases for not filing a motion to
suppress. Again, failure to prove any prong of the Pierce test defeats an
ineffectiveness claim, Wholaver, 177 A.3d at 144. Appellant’s first issue
fails.7
In his second issue, Appellant argues that his guilty plea was not
knowing and intelligent. The PCRA court addressed this contention, stating:
Allegations of ineffectiveness in connection with a guilty plea do
not warrant relief unless counsel’s ineffectiveness caused an
involuntary, unknowing, or unintelligent plea. [Commonwealth
v. Escobar, 70 A.3d 838, 841 (Pa. Super. 2013)] (citation
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sufficient to prove a violation of any right of [Appellant] under the
Pennsylvania and/or United States Constitution.” Finley No-Merit Letter,
12/21/20, at 6. In his response, Appellant suggested that the search warrant
was based on hearsay and was unconstitutional. Response to No-Merit Letter,
2/3/21, at 1. However, the Commonwealth correctly notes that “this Court
has explicitly stated that hearsay may be ‘sufficient to form the basis of a
search warrant.’” Commonwealth Brief at 8 (quoting Commonwealth v.
Harlan, 208 A.3d 497, 506 (Pa. Super. 2019)).
7 While Appellant also claims the PCRA court’s decision is unsupported by the
record—citing the drafting errors in the court’s November 10, 2021 opinion,
we have discounted those errors, attributing them to carelessness. See n. 2.
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omitted). Where the defendant enters a plea on counsel’s advice,
the voluntary and knowing nature of that plea turns on whether
counsel’s advice fell within the range of competence demanded of
attorneys in criminal cases. Id. In order for the withdrawal of a
guilty plea under post conviction relief, the defendant’s plea must
be unlawfully induced and the defendant is innocent of the
charges. See 42 Pa.C.S.A. § 9543(a)(2)(iii).
A person “who elects to plead guilty is bound by the statements
he makes in open court while under oath and may not later assert
grounds for withdrawing the pleas which contradict the
statements he made at his plea colloquy.” Commonwealth v.
Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011).
Both trial counsel and this court conducted a thorough and
detailed colloquy of [Appellant] at the open guilty plea hearing
and the record shows [Appellant’s] willing intentions to enter an
open plea. The record indicates that [Appellant] understood the
ramifications of accepting the guilty plea and waived all of his trial
rights and possible defenses. These guidelines were also supplied
to [Appellant] so he could make a knowing and intelligent plea.
Ultimately, this court accepted [Appellant’s] plea as both knowing
and intelligent. There is nothing to indicate that [Appellant’s open
plea was not knowing and intelligent nor that his court or trial
counsel failed to provide a detailed colloquy to [Appellant].
PCRA Court Opinion, 11/10/21, at 2-3 (reference to notes of testimony and
some capitalization omitted).
Based on our review of the record, including the written colloquy and
the transcript of the guilty plea hearing, which included an on-the-record
colloquy, we find the PCRA court’s findings of fact, viewed in the light most
favorable to the Commonwealth, are supported by the record and that its
conclusions of law are free from legal error. Appellant’s claim that his guilty
plea was not knowingly or intelligently made is refuted by the record, in the
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written guilty plea colloquy, and in the answers he provided during his oral
guilty plea colloquy with the trial court. Appellant’s second issue fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2022
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