Com. v. Smith, F. ( 2022 )

J-A18044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANZORA ARNEZ SMITH :
:
Appellant : No. 1437 WDA 2021
Appeal from the PCRA Order Entered November 5, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003149-2016
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 17, 2022
Franzora Arnez Smith appeals from the order dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. He claims the Commonwealth violated Brady v. Maryland, 373 U.S.
83 (1963), and raises claims of ineffective assistance of counsel. He also
argues we should remand for re-sentencing based on a sentencing disparity
following the resentencing of his co-defendant. We affirm.
The trial court summarized the procedural history as follows:
[Smith] was initially charged with one count of Criminal
Conspiracy of Possession with Intent to Deliver (PWID), two
counts of PWID, one count of Possession of Drug
Paraphernalia, two counts of Possession of a Controlled
Substance, one count of Persons Not to Possess Firearms,
and one count of Receiving Stolen Property.[1] The charges
stemmed from the recovery of cocaine, heroin, and firearms
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1 18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(30), (a)(32), and (a)(16), 18
Pa.C.S.A. §§ 6105(c)(2), and 3925(a), respectively.
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that were found on [Smith’s] person as well as in a house in
Erie, Pennsylvania following a drug trafficking investigation
and surveillance. [Smith] was tried with his Co-Defendant,
Stephen Maurice Barry-Gibbons, who was charged with
similar offenses. . . .
[Smith] was represented at trial by Attorney Steven
Townsend. Attorney Townsend had been privately retained
and began representing [Smith] subsequent to [Smith’s]
Preliminary Hearing. Attorney Townsend filed a Motion to
Suppress, alleging that the police lacked reasonable
suspicion to stop the car, in which [Smith] was a passenger.
The motion was denied by Judge William R. Cunningham.
[Smith] and Co-Defendant Gibbons were tried together
before Judge Michael E. Dunlavey. The majority of the
Commonwealth’s case consisted of evidence from officers
involved in the drug trafficking investigation — Detective
Michael Chodubski, a Sergeant with the Drug Unit of the City
of Erie Police Department; Sergeant Matthew Bennaci, a
County Detective with the Erie County District Attorney's
Office; and Lieutenant Michael Nolan, the supervisor of the
Drug and Vice Unit of the City of Erie Police Department.
Trial Court Opinion, filed Nov. 5, 2021, at 1-2 (“1925(a) Op.”).
We need not engage in a full recitation of the facts for this appeal, but
will provide factual information relevant to two claims. First, during the direct
examination of Lieutenant Nolan, two comments were made that indicated
Smith’s co-defendant had prior contact with police and a criminal background.
Lieutenant Nolan stated that when the Lieutenant walked into the interview
room, the co-defendant “looked up at [Lieutenant Nolan]” and “said, ‘Good
job, Mike, good fucking job[.]’” N.T., Aug 15, 2017, at 112. Lieutenant Nolan
also discussed that the co-defendant wanted to work with the police, but that
the co-defendant pointed out they should not charge him yet because he was
on parole. Id. at 114.
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Second, we repeat the PCRA court’s summary of the factual and
procedural history regarding the Commonwealth’s disclosure during trial of a
police report, which is relevant to Smith’s Brady claim:
The other item of note involves testimony regarding the
recovery of buy money from [Smith] and the apparent
failure of the Commonwealth to turn over a copy of a police
report referencing the recovery of the money as part of pre-
trial discovery. As part of his testimony, Sergeant Chodubski
explained that controlled buys and targeted buys were used
during [the] course of the investigation. Attorney Townsend
sought to discredit the evidence of the buys as they related
to [Smith] by showing that Sergeant Chodubski had labeled
Tag 14 on $1,534 of U.S. currency as having been seized
from L.S. - Leiah Smith. Sergeant Chodubski testified that
the evidence had been mislabeled, and it had actually been
seized from Defendant Franzora Smith. See N.T., Aug. 14,
2017 at 136-37. Additionally, Attorney Townsend sought to
discredit the testimony by suggesting that there was
nothing in any of the investigation reports tying the money
used in the controlled buys to [Smith]. Attorney Townsend
concluded his cross-examination of Sergeant Chodubski
with the following:
[Attorney Townsend]; And with regard to the -- when
you do buys, do you have prerecorded money?
[Sergeant Chodubski]: Yes.
Q. Okay. And when you do the prerecorded money,
you would write a list of the serial numbers of the
bills?
A. That’s correct.
Q. If you had that evidence that you believe someone
was in possession of that recorded money, you would
present that in your case, would you not?
A. Yes.
Mr. Townsend: All right. Thank you, that’s all I have.
N.T., Aug. 14, 2017 at 140-41.
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Immediately after the conclusion of Attorney Townsend’s
cross-examination of Sergeant Chodubski, the Assistant
District Attorney handed Attorney Townsend a copy of
Detective Bennaci’s investigation report, which had
apparently been omitted from the pretrial discovery
provided to [Smith]. Bennaci’s report made reference to buy
money that was recovered from [Smith] following the traffic
stop. Following an in camera discussion, Judge Dunlavey
found the failure to provide a copy Bennaci’s report in pre-
trial discovery was an inadvertent oversight[2] and that there
was no surprise or prejudice to [Smith] regarding the
reference to Bennaci’s report and the buy money on
[Smith’s] person because that information had been elicited
at [Smith’s] Preliminary Hearing. See N.T., Aug. 15, 2017
at 19-22.
Although Attorney Townsend had not represented [Smith]
at the time of the Preliminary Hearing, the information
about the buy money was of record and known to [Smith].
See N.T., Aug. 15, 2017 at 6-22.
1925(a) Op. at 3-4.
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2 The Assistant District Attorney described the disclosure of the report as
follows:
Now, those questions [about the buy money] were asked.
There was no answer elicited from Officer Chodubski and
immediately, when Attorney Townsend was done cross-
examining, I provided – I said, well, we had a reference to
buy money in Sergeant Bennaci’s report. That report was
not turned over to the defense. Sergeant Bennaci works for
the District Attorney’s Office. It was not attached to the
incident report. I was unaware that it was not provided in
the initial discover that went out.
I immediately turned it over to him. There is a reference to
the buy money in that report, Officer Bennaci was the one
that assisted with the arrest of . . . Smith along with patrol
units from the Erie Police Department.
I did provide both attorneys with that report, neither of
them had it, unbeknownst to me[.]
N.T., Aug. 15, 2017, at 6-7.
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The jury convicted Smith of all charges. The court sentenced him to an
aggregate sentence of 18 to 36 years’ incarceration.3 Smith appealed, and
this Court affirmed the judgment of sentence. The Pennsylvania Supreme
Court denied his petition for allowance of appeal in January 2020.
In August 2020, Smith filed a timely pro se PCRA petition, alleging,
among other things, prosecutorial misconduct under Brady. The petition also
claimed that counsel was ineffective for failing to investigate the case and
challenge the reliability of the confidential informants, file a motion for
severance, and raise a Brady violation claim. The PCRA court appointed
counsel. Counsel, “consistent with the directives of [Smith],” did not file an
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3 The court imposed the following sentences:
Count 1: Conspiracy (PWID) — 72 to 144 months
incarceration;
Count 2: PWID — 72 to 144 months incarceration,
consecutive to Count 1
Count 3: PWID — 72 to 144 months incarceration,
consecutive to Count 2;
Count 4: Paraphernalia— merges with Count 3;
Count 5; Possession — merges with Count 1;
Count. 6: Possession – merges with. Count 3;
Count 7: Persons Not to Possess — 60 to 120 months
incarceration, concurrent to Count 3;
Count 8: Receiving Stolen Property — 33 to 66 months
incarceration, concurrent to Count 3.
1925(a) Op. at 5 (citation omitted).
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amended petition. Supplemental Petition, filed May 28, 2012, at 1. The court
scheduled a hearing, which after multiple delays, was set for June 30, 2021.
In May 2021, counsel filed a supplement PCRA petition, seeking relief
because this Court vacated Smith’s co-defendant’s receiving stolen property
conviction and concluded certain convictions should have merged for
sentencing purposes. The supplemental petition pointed out that the evidence
supporting the receiving stolen property conviction was the same for both
Smith and his co-defendant. Supplemental Petition at 2. The petition further
noted that unlike the trial court at his co-defendant’s initial sentencing, the
trial court properly merged Smith’s possession convictions for sentencing
purposes. Id. The relief sought in the supplemental petition was to “vacat[e]
the conviction for receiving stolen property at count 8 and [strike] the
sentence imposed at count 8 arising from said conviction.” Supplemental
Petition at 3.
A hearing occurred on June 30, 2021.4 On November 5, 2021, the PCRA
court granted the PCRA petition in part and denied it in part. It granted the
petition on the claim that counsel was ineffective for failing to challenge the
sufficiency of the evidence supporting the receiving stolen property conviction
and vacated the sentence on that count. It denied the petition as to the
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4 The certified record does not have a copy of the transcript of this hearing,
and counsel did not request one. The appellant is responsible for ensuring this
Court receives a complete certified record. Commonwealth v. Houck, 102
A.3d 443, 456 (Pa.Super. 2014) (citation omitted). However, we decline to
find waiver here because the lack of the hearing transcript does not hinder
our review. Id. at 458.
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remaining claims. On that same day, it issued an amended sentencing order
vacating the conviction for receiving stolen property and the sentence imposed
at that count. It ordered that the remaining provisions and conditions of the
September 2017 sentencing order remain unchanged. Smith filed a timely
notice of appeal.5
Smith raises the following issues:
A. Whether the PCRA court erred in failing to find that a
Brady violation had transpired given the failure of the
Commonwealth to provide a copy of the investigative report
of Detective Bennaci in pre-trial discovery wherein said
report was provided to counsel during trial at the conclusion
of the cross-examination wherein that report would have
been utilized in informing the content of the cross-
examination?
B. Whether [Smith] was afforded ineffective assistance of
counsel given the failure to file a motion for severance of
trial from the co-defendant Stephen Maurice Barry-
Gibbons?
C. Whether defense counsel was ineffective in failing to
properly investigate the case in preparation of a defense by
specifically seeking the disclosure and unmasking of the
identity of the confidential informant(s) utilized by the
police?
D. Whether [Smith] should be granted sua sponte review
and remedy as to the egregious circumstance of a disparate
sentencing exposure arising from the resentencing of the
co-defendant Barry-Gibbons on remand per a successful
direct appeal wherein the co-defendant was resentenced to
an aggregate sentence of 75 months to 150 months
[Smith’s] sentence remains unaltered at 18 years to 36
years where both individuals are similarly-situated and
identically convicted and where if anything [Smith]
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5The court did not order a concise statement pursuant to Rule 1925(b), and
Smith did not file one.
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possesses vastly more significant mitigating factors while
Barry-Gibbons bears a significant prior record score and
indicia of being the mastermind and primary actor as to the
drug trafficking at the core of the instant charges?
Smith’s Br. at 2.
Upon a challenge to the denial of PCRA relief, we determine whether the
record supports the PCRA court’s findings and whether its conclusions are free
of legal error. Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa.Super.
2015) (en banc).
In his first claim, Smith argues the PCRA court erred in denying his claim
that a Brady violation occurred when the Commonwealth failed to provide
Smith a copy of the police investigative report until after cross-examination of
one of the police detectives. He maintains the report was material and the
court erred in failing to find prosecutorial misconduct or a Brady violation. He
argues the “prejudicial impact on a fair trial was evident” and “it surpasses
credulity to assign knowledge and notice of the report contents to [defense
counsel] wherein he was not even involved in the case at the time of the
preliminary hearing.” Smith’s Br. at 9.
To obtain relief under the PCRA, a petitioner must prove that the
“allegation of error has not been previously litigated or waived.” 42 Pa.C.S.A.
§ 9543(a)(3). A claim is previously litigated “if the highest appellate court in
which the petitioner could have had review as a matter of right has ruled on
the merits of the issue.” Commonwealth v. Brown, 872 A.2d 1139, 1144
(Pa. 2005) (citing 42 Pa.C.S.A. § 9544(a)(2)). A claim is “waived ‘if the
petitioner could have raised it but failed to do so before trial, at trial, on appeal
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or in a prior state post[-]conviction proceeding.’” Id. (quoting 42 Pa.C.S.A. §
9544(b)).
Smith discovered the alleged Brady violation during trial. See N.T.,
Aug. 15, 6-22. He did not challenge the trial court’s ruling on direct appeal,
and he therefore waived the issue. See Brown, 872 A.2d at 1144.
Even if he had not waived the claim, we would conclude the PCRA court
did not err in finding it lacked merit. To establish a Brady violation, the
petitioner must prove: “(1) evidence was suppressed by the state, either
willfully or inadvertently; (2) the evidence was favorable to the defendant,
either because it was exculpatory or because it could have been used for
impeachment; and (3) the evidence was material, in that its omission resulted
in prejudice to the defendant.” Commonwealth v. Willis, 46 A.3d 648, 656
(Pa. 2012) (citation omitted).
The PCRA court noted that the trial court found the Commonwealth
inadvertently failed to provide the report in pre-trial discovery. Trial Court
Opinion, filed Nov. 5, 2021, at 16.6 It pointed out the information contained
in the report – that is, the existence of buy money on Smith’s person when he
____________________________________________
6 In his PCRA petition, Smith raised a Brady violation claim based on the late
disclosure and a claim counsel was ineffective for failing to object to the
testimony derived from the report that had not been disclosed during
discovery. On appeal, Smith does not raise the ineffectiveness claim. Even if
he did, because we agree with the trial court that the underlying Brady claim
lacked merit, we would conclude the ineffectiveness claim also lacked merit.
See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (stating the
three prongs the petitioner must prove to establish a counsel ineffectiveness
claim, including that the petitioner must show the underlying claim had merit).
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was arrested – was not favorable to Smith and had been known to him, as the
existence of buy money on Smith had been mentioned at the preliminary
hearing. Id. The PCRA court therefore concluded he was not prejudiced by the
late provision of the report. This was not error.
In his next two claims, Smith claims his trial counsel was ineffective. To
prevail on an ineffective assistance of counsel claim, the petitioner must
establish: “(1) his underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner suffered
actual prejudice as a result.” Spotz, 84 A.3d at 311 . “[C]ounsel is presumed
to be effective and the burden of demonstrating ineffectiveness rests on
appellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.Super.
2011) (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.
2010)). “The failure to prove any one of the three [ineffectiveness] prongs
results in the failure of petitioner's claim.” Id. (quoting Rivera, 10 A.3d at
1279). “To establish the third, prejudice prong, the petitioner must show that
there is a reasonable probability that the outcome of the proceedings would
have been different but for counsel’s ineffectiveness.” Commonwealth v.
Chmiel, 30 A.3d 1111, 1127-28 (Pa. 2011).
Smith claims counsel was ineffective for failing to file a motion to sever
his trial from that of his co-defendant. He argues his co-defendant had a
significant criminal history that was revealed during trial. Smith claims he was
a “‘bit’ player if involved at all or just implicated by circumstance yet he had
to bear the consequence of being tried with a major drug trafficker with a
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marked criminal record.” Smith’s Br. at 10. He argues the situation was “rife
with the prospect of prejudice and jury bias through unwarranted linkage
between the two defendants.” Id. He claims the joint trial became more
prejudicial because of the reference to the co-defendant’s criminal record, as
there was testimony disclosing that the co-defendant was on parole. He
concludes that trial counsel had a valid and arguable meritorious basis to seek
severance and was ineffective for failing to do so.
“Severance questions fall within the discretion of the trial [court].”
Commonwealth v. Brown, 925 A.2d 147, 161 (Pa. 2007). “When conspiracy
is charged, a joint trial generally is advisable.” Id. “In ruling upon a severance
request, the trial court should consider the likelihood of antagonistic defenses.
A claim of mere hostility between defendants, or that one defendant may try
to exonerate himself at the expense of the other . . . is an insufficient basis
upon which to grant a motion to sever.” Id. (citations omitted). Rather,
“severance should be granted only where the defenses are so antagonistic
that they are irreconcilable—i.e., the jury essentially would be forced to
disbelieve the testimony on behalf of one defendant in order to believe the
defense of his co-defendant.” Id. at 161-162 (citation omitted). Accordingly,
“a defendant claiming error on appeal has the burden of demonstrating that
he suffered actual, not speculative, prejudice because of the ruling permitting
a joint trial.” Id. at 162 (citations omitted).
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The PCRA court concluded Smith failed to establish his counsel was
ineffective because he did not prove he was prejudiced, as he did not show
the trial court would have granted a motion to sever:
[T]he Court finds that there would have been little possibility
the trial court would have granted such a motion had it been
raised. There is a strong preference to trying co-defendants
together where, as here, there are charges of conspiracy.
...
[Smith] argues that the evidence presented at trial was
either incredible or tended to prove that his Co-Defendant
Barry-Gibbons was involved in drug trafficking but that
there was no evidence to tie [Smith] to the crimes. There is
nothing there to show that the Co-Defendants’ trial defenses
were so antagonistic that they could not be tried together.
Moreover, if the jury believed that the evidence of drug
trafficking was only attributable to Co-Defendant Barry-
Gibbons, that would have only benefitted [Smith], not
prejudiced him.
Additionally, [Smith] argues that evidence showing Co-
Defendant was on parole at the time these crimes were
committed was introduced at trial and that the “spillover”
effect of knowledge of his Co-Defendant’s criminal
background was prejudicial to [Smith’s] case. The only
reference to Co-Defendant’s parole status came from two
unsolicited references to Co-Defendant Barry-Gibbon’s past
criminal history by Lieutenant Nolan. In the first instance,
Lieutenant Nolan testified that when he walked into the
interview at the Erie Police Department, Barry-Gibbons
“looked up at [Lieutenant Nolan] and he said--he said,
``Good job, Mike, good fucking job,’ and he kind of put his
head down and shook his head.” N.T., Aug. 15, 2017 at
1[1]2. This passing reference, which indicated Co-
Defendant Barry-Gibbons knew Lieutenant Nolan and might
have suggested had a criminal background, was so minor
that it did not raise an objection from either defense counsel
and was so minor and fleeting that there was no prejudice
to either Defendant from the reference.
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The second reference occurred when Lieutenant Nolan
responded to a question from the Commonwealth about Co-
Defendant Barry-Gibbon’s offer to work with the Erie Police
Department. At trial, the following exchange took place:
[Assistant District Attorney Garcia] Q. Did. Mr. Barry-
Gibbons make any proposals to you about wanting to
work for the Erie Police Department?
[Lieutenant Nolan] A. Yes, he did.
Q. What did he say in that respect?
A. Well, he told us that he’d be willing to help us get
some bigger fish, and that. But he said he couldn’t go
to the county prison. So what that means is he can’t
charge me now, because if I go to the county prison,
I’m on parole, and I’ll be locked up in there or -- by
my -- everyone is going to know that I was – that’s
what it was. Everyone is going to know that I was
locked up.
N.T., Aug. 1[5], 2017 at 1[1]4.
Co-Defendant Barry-Gibbons’ counsel immediately
requested a sidebar and requested a mistrial. At sidebar and
in an in camera discussion with the trial judge, [Smith’s]
trial counsel stated that the testimony did not prejudice his
client. See id. at 116. Indeed, when the judge offered to
make a curative instruction advising the jury to ignore all of
the testimony regarding the conversation between
Lieutenant Nolan and Co-Defendant Barry-Gibbons,
[Smith’s] trial counsel specifically requested that the
entirety of the conversation not be stricken from the record
because some of the conversation helped his client. See id.
[at 121]. Thereafter, the trial judge gave a curative
instruction to the jury to disregard those portions of
Lieutenant Nolan’s testimony. See id. at 127-28. It is well
established that juries are presumed to follow the trial
court’s instructions and that a trial court’s curative
instruction is presumed to be sufficient to cure any
prejudice. See Commonwealth v. Thornton, 791 A.2d
1190 (Pa. Super. 2002).
The jury heard very little — and heard no details — about
Co-Defendant Barry-Gibbon’s criminal record. The trial court
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gave an immediate curative instruction which the jurors
acknowledged. Accordingly, there was no prejudice to
[Smith]. Additionally, trial counsel could not have known or
anticipated that Co-Defendant Barry-Gibbons’ criminal
history would be inadvertently disclosed at the time of trial.
Trial counsel cannot be faulted for choosing not to file a
motion to sever the two cases before trial because he did
not foresee the unexpected disclosure.
Here, [Smith] failed to present testimony at the Evidentiary
Hearing tending to show that he suffered real prejudice
because he was tried together with his Co-Defendant, and
the Court cannot discern any. Accordingly, trial counsel was
not ineffective for making the strategic decision not to raise
the issue, particularly where the issue had no merit.
1925(a) Op. at 11-15 (some alterations in original).
The record supports the court’s conclusions, and it did not err in finding
Smith failed to prove prejudice. Smith did not establish that if counsel had
filed a motion to sever, it would have been meritorious. The defenses were
not “so antagonistic that they were irreconcilable,” such that severance was
required.
Next, Smith argues the PCRA court erred in denying his claim that his
counsel was ineffective for failing to file a motion to compel the disclosure of
the identities of the confidential informants. He maintains counsel should have
“contested the reliability of the confidential informants and that the failure to
pursue this avenue of investigation and challenge served to undermine his
contentions underlying the suppression motion and further impeaching the
reliability and efficacy of the Commonwealth’s case at trial.” Smith’s Br. at 12.
He argues his “fundamental contention is that he did not know or have contact
with any of the confidential informants and if they had been disclosed to the
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defense he would have been positioned to display any lack of nexus with
them,” which would call into question the Commonwealth’s case. Id.“The Commonwealth enjoys a qualified privilege to withhold the identity
of a confidential source.” Commonwealth v. Marsh, 997 A.2d 318, 321 (Pa.
2010) (citation omitted). “[T]o overcome this qualified privilege and obtain
disclosure of a confidential informant's identity, a defendant must first
establish, pursuant to Rule 573(B)(2)(a)(i), that the information sought is
material to the preparation of the defense and that the request is reasonable.”
Id. (citation omitted). “Only after the defendant shows that the identity of the
confidential informant is material to the defense is the trial court required to
exercise its discretion to determine whether the information should be
revealed by balancing relevant factors, which are initially weighted toward the
Commonwealth.” Id. at 321-322 (citation omitted).
The PCRA court concluded any motion seeking the identities of the
confidential informants would have been meritless and therefore counsel was
not ineffective:
Attorney Steven Townsend testified at the Evidentiary
Hearing that he and [Smith] spoke often by phone and they
discussed how the Confidential Informants may or may not
factor into [Smith’s] case. Attorney Townsend further
testified that, in his professional opinion, the identities of
the Confidential Informants did not come into play. The
controlled buys were made under surveillance and the
investigating officers were available to testify that [Smith]
had appeared and met a Confidential Information at a
predetermined location. Therefore, the identity of the
Confidential Informants was immaterial and a request to
discover their identities was unlikely to be granted. See,
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e.g., Commonwealth v. Bing, 713 A.2d 56 (Pa. 1998). As
the issue of the identity of the Confidential Informants was
meritless, trial counsel could not be ineffective for refusing
to raise it.
1925(a) Op. at 11.7
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7 Smith also contends the court erred in relying on the trial and appellate court
findings that the confidential informants were reliable when they were ruling
on the motion to suppress, reasoning such reliance “is dismissive of his
present argument that but for the omission of counsel, there would have been
more credible and compelling means and evidence to impugn the reliability of
the confidential informants.” Smith’s Br. at 12. In denying Smith’s separate
PCRA claim that counsel was ineffective for failing to contest the reliability of
the informants, the PCRA court concluded the claim was previously litigated
and, to the extent he attempted to reframe it on PCRA, it lacked merit,
reasoning:
On direct appeal, . . . [t]he Superior Court adopted the
findings of the Suppression Court and cited the Suppression
Court’s ultimate determination:
All of the confidential informants were corroborated
by the surveillance conducted by the police, who
observed [Juan] [a/k/a Stephen Barry Gibbons] and
[Appellant] [a/k/a/ Franzora Smith] inaction, starting
from 1055 West 30 Street to the designated meeting
sites. Both [Juan] and [Appellant] had a house key to
enter 1055 West 30th Street since July, 2015.
See Franzora Smith Superior Court Opinion, Aug. 26, 2019
at 15; Stephen Barry- Gibbons Trial Court Opinion, Feb. 21,
2018 at 10. Additionally, the Court notes that the
Suppression Court specifically found that the information
provided by the Confidential Informants was reliable. See
Stephen Barry-Gibbons Trial Court Opinion, Feb. 21, 2018
at 9. As the Superior Court adopted the Suppression Court’s
findings that the Confidential Informants were reliable,
there is not merit to the underlying claim and counsel could
not have been ineffective for not raising it.
1925(a) Op. at 9. The PCRA court did not mention this Court’s findings
regarding reliability when denying the counsel ineffectiveness claim for failure
(Footnote Continued Next Page)
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The record supports the court’s findings, and it did not err in rejecting
the ineffectiveness claim. Smith could not establish the identities were
material, and therefore the underlying claim lacked arguable merit.
In his final claim, Smith argues the court erred in failing to grant relief
based on the sentencing disparity following the re-sentencing of Smith’s co-
defendant. He argues that a vast disparity now exists between Smith’s
sentence of 18 to 36 years’ imprisonment and his co-defendant’s sentence,
which he alleges was 75 to 150 months’ imprisonment, and claims the
disparity exists even though his co-defendant had more criminal culpability.
He claims the disparity “is so significant as to constitute a legal travesty and
compels a sua sponte correction.” Smith’s Br. at 15-16. He reasons that “a
three-fold amplification of sentence for co-defendant convicted of the same
criminal offenses arising out of analogous criminal conduct where if anything
the mitigative factors would [] play toward the defendant facing the much
lengthier sentence from any reasonable evaluation should be an affront to this
Court as a lapse of fundamental fairness and justice.” Id. at 16. Smith argues
“[t]he fact that a different judge imposed the resentencing causing the
disparity should be of no legal moment as the judges are constituent members
and constitute the same lower Court and the resulting sentences should be
____________________________________________
to file a motion to disclose the informants. To the extent Smith is attempting
to also argue the court erred in denying the claim that counsel was ineffective
for failing to contest the informant’s reliability, we conclude he was waived
such claim and, even if he had not waived it, we would conclude the court did
not err in denying it.
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reviewable as if imposed by the same Court exercising the same jurisdiction
and discretion and confronted with the same legal standards and obligations.”
Id. at 17. He argues the court when sentencing Barry-Gibbons did not afford
any reason as to the disparity in sentences.8
Smith waived this claim for failing to raise it in the PCRA court. Pa.R.A.P.
302(a) (“Issues not raised in the trial court are waived and cannot be raised
for the first time on appeal.”). In the PCRA court, Smith requested that the
court vacate the receiving stolen property conviction and vacate the sentence
on that conviction. The PCRA court granted this relief. Smith did not seek relief
based on an alleged disparity in the sentencing following Barry-Gibbons’ re-
sentencing. Smith asks us to review this claim sua sponte but provides no
case law to support our ability to do so.
Order affirmed.
____________________________________________
8 On direct appeal Smith’s co-defendant, Barry-Gibbons, challenged, among
other things, the sufficiency of the evidence supporting the receiving stolen
property conviction and the court’s failure to merge the possession counts for
sentencing purposes. Commonwealth v. Barry-Gibbons, 2019 WL 2503185(Pa.Super. June 17, 2019). This Court agreed, vacated the sentences for the
receiving stolen property conviction and the possession of controlled
substances convictions. Id., at *11, 16. We found that resentencing was not
required because the disposition did not impact the sentencing scheme. Id.
at *16. Barry Gibbons then filed a PCRA petition claiming, among other things,
that the sentence was based on an incorrect calculation of his offense gravity
score. Commonwealth v. Barry-Gibbons, 2022 WL 1931429, at *3
(Pa.Super. filed June 6, 2022). The PCRA granted relief on his sentencing claim
and re-sentenced Barry-Gibbons to ten to 20 years’ incarceration. Id., at *3-
4.
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J-A18044-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2022
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