Com. v. Kelley, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JASON ROBERT KELLEY :
:
Appellant : No. 1556 MDA 2021
Appeal from the PCRA Order Entered October 12, 2021
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000141-2019
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: SEPTEMBER 2, 2022
Jason Robert Kelley appeals from the order denying, following a hearing,
his first and timely petition filed pursuant to the Post Conviction Relief Act.
See 42 Pa.C.S.A. §§ 9541-9546. On appeal, Kelley singularly asserts that his
trial counsel was ineffective for failing to investigate, both prior to and at trial,
the procedures surrounding the Adams County Drug Task Force’s (ACDTF) use
of a female confidential informant (CI). However, our review of the record
leads us to conclude that Kelley’s counsel had a reasonable basis to act in the
manner that he did. Moreover, Kelley has failed to demonstrate prejudice. As
such, we find there is no basis for him to establish that he suffered from
ineffective assistance and affirm.
Briefly, the ACDTF, working in tandem with a female CI, became aware
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 Retired Senior Judge assigned to the Superior Court.
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of an alleged heroin seller by the name of Ira Trivitt. Thereafter, the CI
arranged to buy heroin from Trivitt through the communication platform
Facebook Messenger. As had been agreed to, the drug buy was facilitated at
a Sheetz convenience store/gas station (Sheetz) in New Oxford, Pennsylvania.
The transaction was completed using marked currency provided to the CI by
the ACDTF. When the meeting between the CI and Trivitt had concluded, the
CI gave the ACDTF a substance that was believed to be heroin. Furthermore,
the CI indicated to the ACDTF that she knew who Kelley was, as he was
Trivitt’s drug supplier and present as a passenger in Trivitt’s vehicle while the
exchange took place.
Approximately two weeks later, after the CI began conversing with
Kelley in the same manner as Trivitt, there was another rendezvous
established for the purpose of purchasing heroin. The CI met with Kelley at
the exact same Sheetz as she had with Trivitt and, too, used marked currency
to consummate the trade. Subsequent testing would confirm that the CI had
acquired illicit/controlled substances from Kelley (as well as Trivitt).
After his trial concluded, a jury found Kelley guilty of three counts of
delivering a controlled substance and one count of criminal conspiracy to do
the same.1 For these offenses, Kelley received a total of five to ten years of
incarceration. Following sentencing, Kelley filed a notice of appeal, and this
Court affirmed his judgment of sentence.
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1 See 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903(a)(1), respectively.
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Six months after our decision, Kelley, acting pro se, filed the present
and timely PCRA petition.2 Subsequently, counsel was appointed to represent
him in his post-conviction proceedings. Ultimately, after the lower court
granted a complete hearing to delve into Kelley’s assertions, it dismissed his
petition. After Kelley filed a notice of appeal from this decision, the relevant
parties complied with their obligations under Pennsylvania Rule of Appellate
Procedure 1925. Accordingly, this matter is ripe for review.
On appeal, Kelley avers that trial counsel was ineffective for failing to
investigate the procedures employed by the ACDTF regarding the use of
female CIs. See Appellant’s Brief, at 4. Relatedly, counsel was ineffective for
failing to cross examine the Commonwealth’s witnesses about these
procedures. See id.
We utilize well-settled precepts to evaluate an order that dismisses a
PCRA petition:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court's ruling if it is supported
by evidence of record and is free of legal error. This Court may
affirm a PCRA court's decision on any ground if the record supports
it. Further, we grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless they have no
support in the record. However, we afford no such deference to
its legal conclusions. Where the petitioner raises questions of law,
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2 Although Kelley initially raised five issues in his petition, he has elected to
only argue one of those claims in his brief before this Court, with three of the
issues having already been dismissed by the lower court for lack of merit. See
Trial Court Opinion, 10/12/21, at 3.
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our standard of review is de novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
As Kelley’s sole contention is that his trial counsel provided him with
ineffective assistance, he must demonstrate:
(1) that the underlying claim has arguable merit; (2) that no
reasonable basis existed for counsel's actions or failure to act; and
(3) that the petitioner suffered prejudice as a result of counsel's
error. To prove that counsel's chosen strategy lacked a reasonable
basis, a petitioner must prove that an alternative not chosen
offered a potential for success substantially greater than the
course actually pursued. Regarding the prejudice prong, a
petitioner must demonstrate that there is a reasonable probability
that the outcome of the proceedings would have been different
but for counsel's action or inaction. Counsel is presumed to be
effective; accordingly, to succeed on a claim of ineffectiveness[,]
the petitioner must advance sufficient evidence to overcome this
presumption.
Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citations and
quotation marks omitted). However, we note that a failure to satisfy even one
of the three ineffective assistance prongs results in a rejection of the entire
claim. See Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
Distilled down, Kelley avers that his trial counsel’s failure to explore the
ACDTF’s policies and procedures, either in their oral or written form, that
governed its use of CIs did not allow the jury to “hear any information about
the ‘behind-the-scenes’ of the sting operation” that led to his arrest.
Appellant’s Brief, at 8. However, Kelley concedes that only the most
outrageous circumstances could warrant a finding that the government’s
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conduct in a criminal investigation violated due process. See id., at 10-11,
citing, inter alia, Commonwealth v. Nelson, 666 A.2d 714 (Pa. Super.
1995). Moreover, “[i]in the absence of … pervasive, long term police
involvement in a criminal enterprise, … courts have generally refused to find
due process violations, even where the government’s conduct was unseemly.”
Commonwealth v. Benchino, 582 A.2d 1067, 1071 (Pa. Super. 1990); see
also id., at 1070 (indicating that there is no violation of due process merely
because the government is the genesis of an undercover operation).
Kelley faults trial counsel for not engaging in a vigorous cross-
examination of the way ACDTF performs CI-based undercover operations.
Kelley highlights Detective Anthony Gilberto’s testimony, wherein the
Detective stated that, in providing an overview of the first drug deal, he
unilaterally searched the CI prior to the transaction with Trivitt, rode with the
CI to the Sheetz, and provided the CI with the marked currency. See N.T.,
10/9/19, at 34-35. Despite this testimony, “[t]here was no indication … at the
time of the trial that any other member of the [ACDTF] observed any
interaction that took place with the CI at any time prior to or immediately
after the controlled buy.” Appellant’s Brief, at 13. Implicitly, then, counsel
should have explored why there was only one ACDTF member present for the
pre- and post-transaction CI search as well as the handoff of marked dollar
bills. Despite Kelley’s supposition, the Detective remarked at trial that ACDTF
does not have any type of on-point written protocol or procedure. See N.T.,
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10/9/19, at 72. At least as it pertained to CI searches, while the Detective
indicated that he had received training when dealing with searches, the
Detective made clear that there were no printed materials in existence
mandating that searches had to be performed in a certain way. See id.
To the extent that it is true that the ACDTF does not have any formal
policies for interactions that involve the use of CIs, Kelley believes that this
unguided conduct “is so outrageous as to constitute a violation of due
process.” Appellant’s Brief, at 14. At the PCRA hearing, trial counsel indicated
that it was “basically impossible to obtain [ACDTF protocols] because those
are internal documents that aren’t always provided. [Counsel] would make an
effort, but … doubt[ed] that [he] would be able to obtain those documents.”
PCRA Hearing, 9/21/21, at 28. Counsel later stated that he “couldn’t obtain
[the documents].” Id., at 30. Counsel wanted to “bring out on cross-
examination what are [the] general policies … and were the policies in fact
followed where if you were dealing with a female CI … was there a female
officer available [for] the search[.]” Id. However, counsel then remarked that
having the policies would not have made any difference because of what was
obtained at trial through testimony. See id.
The lower court found that Kelley’s counsel did, in fact, conduct a
reasonable, yet unfruitful, investigation into the ACDTF’s procedures. See
Trial Court Opinion, 10/12/21, at 9. In the alternative, the court determined
that counsel’s failure to explore ACDTF’s procedures to the degree Kelley now
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suggests counsel should have done did not demonstrably prejudice him.
The Commonwealth concedes that the ACDTF “did not utilize any
protocols or procedures for searches of female [CIs] because they did not
have any specific procedures delineated for [that category of individuals].”
Appellee’s Brief, at 9. However, there were multiple ACDTF officers present
when, inter alia, the drug deal between Kelley and the CI occurred. More
importantly, though, the Commonwealth adamantly stresses that there is no
known legal requirement or mandate establishing that a drug task force must
use written policies when it utilizes CIs. See id., at 10.
To the extent that Kelley suggests that there should be written
procedures dealing with both CIs generally and those that are specifically
female, we agree that it would be prudent for the ACDTF to adopt written
guidelines. Specifically, it would likely be in ACDTF’s best interest to
incorporate language that addresses a situation such as this: a male officer
being the sole individual who engages a female CI pre- and post-transaction.
However, Kelley has not demonstrated, as the Commonwealth indicates, that
the government must have a specifically enumerated written plan in order for
its use of CIs to be legally viable. Moreover, as Kelley is attacking his former
counsel premised on an ineffective assistance claim, based on the record as it
exists, it is unclear what more trial counsel could have done here. If there was
no written policy, there was nothing that counsel could have obtained.
Therefore, it was not unreasonable for counsel to proceed in the manner that
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he did.
Counsel unequivocally stated, at the PCRA hearing, that he could not
obtain the complained-of procedures in written form. At trial, bolstering the
idea that it was impossible for counsel to acquire the very thing Kelley now
seeks, the Detective expressly stated that there is no written policy governing
searches of CIs. It was trial counsel’s questioning that brought about this
admission. In addition, the Detective provided a complete overview of what
his role was in searching the CI and furnishing her with marked currency.
Other than vague insinuations that the Detective or the female CI could
have possibly engaged in some sort of chicanery, given that they were the
only two individuals present for both the searches of the CI and transfer of
marked money from the Detective to the CI, Kelley has not demonstrated,
through clear authority, that his trial counsel engaged in unreasonable
behavior. Stated differently, assuming that no written policies exist, Kelley
does not identify, with any level of specificity, other areas about which counsel
should have questioned the Detective on cross-examination.
In summary, when juxtaposed against the ACDTF’s lack of written
policies and the cross-examination that did occur, we are compelled to
conclude that both counsel’s actions and inactions fell within the bounds of
being reasonable. Accordingly, because this element of his ineffective
assistance claim fails, the entire basis for his appeal necessarily fails, too.
In the alternative, Kelley provides no clear reason for this Court to find
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that his trial counsel’s actions or inactions have prejudiced him. Kelley
generally asserts that counsel’s “lack of exploration on these issues at trial
severely prejudiced [him] and very likely could have affected the jury’s
decision in deciding the outcome of [his] case.” Appellant’s Brief, at 20.
However, there is little development of this ineffective assistance prong
beyond that bald statement.
As stated, supra, trial counsel believed that obtaining a physical copy of
the protocols used by the ACDTF, to the extent that they exist, would not have
made any difference in any aspect of the trial proceedings. Moreover, counsel
indicated that physical or tangible knowledge of those procedures was not
necessary to defend the case. See PCRA Hearing, 9/21/21, at 30. The court
found counsel to be credible when he made this statement, and we see no
cogent basis, either in the record or in law, to refute counsel’s conclusion.
As Kelley has failed to demonstrate that his trial counsel provided him
with ineffective assistance, we affirm the lower court’s order dismissing his
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/02/2022
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