Com. v. Davis, P. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PETIE P. DAVIS, :
:
Appellant : No. 724 MDA 2019
Appeal from the PCRA Order Entered April 16, 2019
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002199-2016
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 26, 2020
Petie P. Davis (“Davis”) appeals, pro se, from the Order dismissing his
first Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously set forth the relevant facts as follows:
On January 7, 2016, Officer Nicolas Licata [(“Officer
Licata”)] contacted a Confidential Informant (“CI”) to utilize in a
controlled[-]buy operation. Officer Licata instructed the CI to call
a drug dealer and order a “brick” of heroin. Once the telephone
call was placed, Officer Licata marked $200 in Dauphin County
drug funds and gave it to the CI. Officer Licata searched the CI
and his vehicle for contraband, and, finding nothing, proceeded to
follow the CI in an unmarked police vehicle to a location where a
black male stood outside.
Officer Licata, and a second officer, Officer Dennis Simmons
[(“Officer Simmons”)], observed the black male enter the CI’s
vehicle and emerge from the vehicle a short time later. The CI
proceeded to a predetermined location where Officer Licata
performed another search. Officer Licata did not find the pre-
marked buy money on the CI[,] but did find a brick of heroin.
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Simultaneously, the police arrested the male [who had met with
the CI], later identified as [Davis].
During a search of [Davis], police found the pre-marked
drug fund money[,] as well as a cell phone matching the number
dialed by the CI in the presence of Officer Licata. Upon recovering
the pre-marked bills, Officer Licata returned them to the drug fund
to use in further investigations.
[Davis] was charged with delivery of a controlled substance
and criminal use of a communication facility. During pre-trial
proceedings, [Davis] moved to dismiss his case due to the police’s
failure to preserve the marked money used in the transaction and
to reveal the identity of the CI. At the hearing on the [M]otions,
[Davis] failed to present any evidence. However, the
Commonwealth presented the testimony of Officer Licata[,] who
described the danger involved in revealing the CI’s identity. The
trial court denied both [M]otions.
[Davis’s] case proceeded to a jury trial. Prior to the
commencement of trial, [Davis] argued [that] the trial court
should exclude any testimony related to the recovery of the pre-
marked buy money as a violation of the best evidence rule. The
trial court denied the [M]otion and allowed the Commonwealth’s
witnesses to testify about their use and recovery of the pre-
marked buy money. [Davis] did not present any evidence but
cross-examined all of the Commonwealth’s witnesses. During
[Officer Licata’s testimony, Davis] attempted to question [Officer
Licata] about the credibility of a supervisor. The Commonwealth
objected to this line of questioning, and this objection was
seemingly sustained by the trial court. Following deliberations,
the jury convicted [Davis] of both charges.
Commonwealth v. Davis, 181 A.3d 1235 (Pa. Super. 2017) (unpublished
memorandum at 1). This Court affirmed the judgment of sentence. Id. Davis
did not file a petition for allowance of appeal with the Pennsylvania Supreme
Court.
On July 12, 2018, Davis, pro se, filed the instant timely PCRA Petition.
The PCRA court appointed Davis counsel. Upon the filing of a pro se “Motion
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to Withdraw Counsel” by Davis, and following a Grazier1 hearing where the
PCRA court determined that Davis’s waiver of counsel was knowing, intelligent
and voluntary, the PCRA court permitted Davis to proceed pro se. Davis
subsequently filed a “Motion for Discovery,” requesting the production of
“Dauphin County Police Department policies relating to the use of funds by
the ‘Vice’ unit….” The PCRA court denied the Motion.
After filing a Pa.R.Crim.P. 907 Notice of Intent to Dismiss, the PCRA
court dismissed Davis’s Petition without a hearing. Davis filed a timely Notice
of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
matters complained of on appeal.
On appeal, Davis presents the following questions for our review:
1. Whether trial counsel was ineffective for:
(a) failing to object to the expert opinion of a detective;
(b) failing to investigate the law regarding a “missing
witness” adverse inference jury instruction;
(c) failing to present evidence in support of the [M]otion to
[D]ismiss for failure to preserve material evidence; and
(d) failing to present evidence in support of the [M]otion to
[C]ompel production of confidential informants?
2. Whether appellate counsel was ineffective for failing to ensure
that the certified record was complete for review of the claims
raised on direct appeal?
3. Whether the trial court erred in limiting the cross-examination
of Detective Licata, in violation of the right of cross-examination
and the right to present a complete defense?
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1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
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4. Whether the PCRA [c]ourt abused its discretion in denying
[Davis’s] Motion for Discovery?
5. Whether the PCRA [c]ourt abused its discretion in denying
[Davis’s] Motion for an Evidentiary Hearing?
Brief for Appellant at 3.
“The standard of review of an order dismissing a PCRA petition is
whether that determination is supported by the evidence of record and is free
of legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super.
2017). “The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.” Id. (citation omitted).
Further, “a PCRA court has discretion to dismiss a PCRA petition without a
hearing if the court is satisfied that there are no genuine issues concerning
any material fact; that the defendant is not entitled to post-conviction
collateral relief; and that no legitimate purpose would be served by further
proceedings.” Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super.
2017) (citations omitted). “[A]s to ineffectiveness claims in particular, if the
record reflects that the underlying issue is of no arguable merit or no prejudice
resulted, no evidentiary hearing is required.” Commonwealth v.
Baumhammers, 92 A.3d 708, 726-27 (Pa. 2014).
To prevail on a claim of ineffective assistance of counsel under the PCRA,
a petitioner must plead and prove, by a preponderance of the evidence, that
counsel’s ineffectiveness “so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken place.” 42
Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that “the
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underlying claim has arguable merit; second, that counsel had no reasonable
basis for his action or inaction; and third, that [the a]ppellant was prejudiced.”
Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa. Super. 2014). “A
PCRA petitioner must address each of these prongs on appeal.”
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).
In his first claim, Davis alleges that his trial counsel was ineffective in
failing to object to certain trial testimony given by Officer Simmons. See Brief
for Appellant at 9-16. According to Davis, Officer Simmons gave expert
witness testimony, even though the Commonwealth solely offered him as a
fact witness. Id. at 9-10. Specifically, Davis directs our attention to Officer
Simmons’s testimony that, based on his experience as a police officer, he
believed that a drug deal had occurred in the CI’s vehicle. Id. Davis points
out that his trial counsel failed to object to this testimony, and request a
cautionary instruction to the jury. Id. Davis argues that the expert testimony
was highly prejudicial because it “related directly to the ultimate issue at trial,”
i.e., whether Davis had sold heroin to the CI while inside of the CI’s vehicle.
Id. at 10.
Pennsylvania Rule of Evidence 701 states that
[i]f a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is: (a) rationally based on the
witness’s perception; (b) helpful to clearly understanding the
witness’s testimony or to determining a fact in issue; and (c) not
based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
Pa.R.E. 701.
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Here, Officer Licata testified that he had provided the CI with $200 in
marked U.S. currency and told him to call a drug dealer and order a brick of
heroin. See N.T., 11/3-4/16, at 22-23, 25. Officer Licata stated that the CI
called a purported drug dealer, and made an agreement to meet on Cameron
Street to buy a brick of heroin. Id. at 23-24, 26. The CI then drove his
vehicle to Cameron Street, followed by Officer Licata in an unmarked vehicle.
Id. at 26-28.
Officer Simmons testified that he was on Cameron Street when the CI
arrived. Id. at 96-97. Officer Simmons witnessed Davis enter the CI’s vehicle
and remain there for a few seconds, then exit the vehicle and enter the
passenger seat of a red Hyundai. Id. Officer Simmons stated that he and
other officers then surrounded the Hyundai, removed Davis from the
passenger seat, and arrested him. Id. at 97-98. After removing Davis from
the vehicle, Officer Simmons discovered U.S. currency on the passenger seat
where Davis had been sitting. Id. at 99-100. Officer Simmons also discovered
two cell phones on Davis’s person. Id. at 100. Officer Licata testified that he
identified the U.S. currency as the same marked currency that he had given
the CI for the controlled buy. Id. at 34.
While Officer Simmons was arresting Davis, Officer Licata met with the
CI, searched him, and found a brick of heroin on his person. Id. at 30. Officer
Licata subsequently dialed the phone number for the dealer that the CI had
given to him, and one of the cell phones that Davis had on his person rang
and displayed the officer’s phone number. Id. at 34. On cross-examination,
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Officer Simmons testified, “[b]ased on the actions of Detective Licata before
this investigation and my observations, I’ve observed multiple drug deals and
this is usually how they actually happen.” Id. at 102.
In light of the foregoing testimony, the record reflects that there was
overwhelming evidence for the jury to conclude that Davis was guilty of
delivery of a controlled substance and criminal use of a communication facility.
Therefore, even if Officer Simmons had improperly provided expert witness
testimony, Davis was not prejudiced by his trial counsel’s failure to object to
the testimony. See Charleston, supra. Accordingly, Davis’s trial counsel
did not provide ineffective assistance on these grounds, and Davis’s first claim
fails.
In his second claim, Davis alleges that his trial counsel was ineffective
in failing to “investigate the law” regarding the “missing witness” instruction.
See Brief for Appellant at 16-19. Davis alleges that his trial counsel requested
that the trial court give the “missing witness” jury instruction, but was denied,
based on a failure to provide legal support for issuance of the instruction. Id.
at 16-17. Davis points to his trial counsel’s admission that she was unaware
of any legal authority stating that the charge should be given in Davis’s
particular circumstances, and that she “didn’t do a significant amount of
research on that particular issue.” Id. at 17; see also N.T., 11/3-4/16, at
74. Davis argues that his trial counsel lacked a reasonable basis for failing to
conduct the proper research, and that he was prejudiced by trial counsel’s
failure to effectively advocate on his behalf. See Brief for Appellant at 17-19.
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“A negative inference may be drawn from the failure of a party to call a
particular witness who was in that party’s control. However, an inference may
not be drawn where there exists a satisfactory explanation as to why the party
failed to call such witness.” Commonwealth v. Jones, 637 A.2d 1001, 1005
(Pa. Super. 1994). The Commonwealth’s genuine concern for a CI’s safety
can form a satisfactory explanation for its failure to call a CI as a witness. Id.Here, the Commonwealth did not call the CI as a witness, and the trial
court denied Davis’s pre-trial Motion to disclose the CI’s identity. See Order,
9/19/16. However, the trial court found that the Commonwealth’s concern
that disclosing the CI’s identity could compromise the CI’s safety was a
satisfactory explanation to excuse his testimony at trial. See Trial Court
Opinion, 3/7/17, at 7-8; N.T., 9/9/16, at 4-6. Therefore, grounds for the
missing witness jury instruction were not established. See Jones, supra.Accordingly, Davis’s underlying claim lacks merit, and his second claim fails.
We will consider Davis’s third, fourth and fifth claims together, as they
are related. In his third and fourth claims, Davis alleges that his trial counsel
was ineffective in failing to “present evidence in support” of his “Motion to
Dismiss for Intentional Failure to Preserve Material Evidence,” and “Motion to
Compel Production of Confidential Informants.” See Brief for Appellant at 19-
23. Davis argues that production of the marked buy money and the CI’s
identity would have benefitted his case. Id.In his fifth claim, Davis claims that his direct appeal counsel was
ineffective in failing to ensure that the certified record on appeal was complete
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by having the record supplemented pursuant to Pa.R.A.P. 1926. See Brief for
Appellant at 23-25. Davis states that, at trial, the Commonwealth objected
to his question regarding the identity of Officer Licata’s supervisor, which was
purportedly sustained at sidebar, off the record. Id. at 24. Davis points out
that this Court, on direct appeal, waived his claim regarding the trial court’s
ruling on this objection, because the record did not include the trial court’s
ruling. Id. at 25.
Here, Davis fails to develop the prejudice prong of the ineffectiveness
test on all three claims. Davis makes bald assertions that he suffered
prejudice as a result of counsel’s actions, without citing to any relevant
authority or presenting any legal argument in support of his claims. “[W]here
an appellate brief fails to provide any discussion of a claim with citation to
relevant authority[,] or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.” Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009). It is not the role of this Court to
“formulate [an a]ppellant’s arguments for him.” Id. at 925; see also
Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (noting that
boilerplate allegations and bald assertions cannot satisfy a petitioner’s burden
to prove ineffective assistance of counsel). Because Davis failed to properly
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develop these claims for our review, they are waived.2
In his sixth claim, Davis alleges that the trial court violated his
constitutional right to confrontation by limiting his cross-examination of
Officer Licata. See Brief for Appellant at 26-28. Davis claims that Officer
Licata’s supervisor had been charged with “stealing from the funds of the Vice
Unit,” which information was relevant to Davis’s defense. Id. at 26. Davis
argues that the supervisor’s alleged misappropriation of funds was relevant to
prove that “a drug transaction never occurred, that the CI was not properly
searched [and] was not reliable, and that the investigation was not credible
or reliable.” Id.
As this Court has explained, the Sixth Amendment of the
United States Constitution provides that, [i]n all criminal
prosecutions, the accused shall enjoy the right to be confronted
with the witnesses against him. This protection has been
incorporated into the Fourteenth Amendment and thus is
applicable in state court prosecutions.
In the context of cross-examining a testifying witness, this
Court has explained that a defendant’s right to confrontation
means more than being allowed to confront the witness physically.
Indeed, the main and essential purpose of confrontation is to
secure for the opponent the opportunity of cross-examination. Of
particular relevance here, the Supreme Court of the United States
has recognized that the exposure of a witness’[s] motivation in
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2 Even if Davis had preserved these claims, and even if Davis had satisfied the
first two prongs of the ineffectiveness test, we would have found that Davis
suffered no prejudice as a result of these alleged failures. As we discussed in
response to Davis’s first claim, there was overwhelming evidence in support
of his convictions, and no evidence to support Davis’s allegations that
production of the CI’s identity, the marked buy money, or the identity of
Officer Simmons’s supervisor would have changed the outcome of Davis’s
trial. See Charleston, supra.
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testifying is a proper and important function of the constitutionally
protected right of cross-examination. It does not follow, of
course, that the Confrontation Clause of the Sixth Amendment
prevents a trial judge from imposing any limits on defense
counsel’s inquiry into the potential bias of a prosecution witness.
On the contrary, trial judges retain wide latitude insofar as
the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on
concerns about, among other things, harassment, and
prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.
The Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.
Commonwealth v. Akrie, 159 A.3d 982, 988 (Pa. Super. 2017) (citations,
quotation marks, ellipses and brackets omitted; emphasis added). “The
pertinent case law permits a police witness to be cross-examined about
misconduct as long as the wrongdoing is in some way related to the
defendant’s underlying criminal charges and establishes a motive to
fabricate.” Commonwealth v. Bozyk, 987 A.2d 753, 757 (Pa. Super. 2009).
“However, if the prior police behavior is unrelated to the present matter and
irrelevant, the trial court is permitted to restrict questioning on the prior
incident.” Id.Here, Davis has not alleged that Officer Licata’s supervisor had any role
in Davis’s apprehension or prosecution. Additionally, Officer Licata’s
supervisor did not provide any testimony at Davis’s trial. The trial court
appropriately exercised its discretion in limiting Davis’s questioning of Officer
Licata regarding the alleged actions of Officer Licata’s supervisor in an
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unrelated matter. See Akrie, supra; Bozyk, supra. Accordingly, Davis was
not denied his right to confrontation, and this claim fails.
In his seventh claim, Davis alleges that the PCRA court abused its
discretion in denying his Motion for discovery. See Brief for Appellant at 29.
Davis states that he intended to seek production of the Harrisburg Bureau of
Police’s policies regarding (1) the use of marked money, and (2) the use of
confidential informants. Id. Davis claims that production of these policies
would have supported his ineffectiveness claims for his counsel’s alleged
failure to present evidence in support of his Motion to Dismiss and Motion to
Compel. Id.Pennsylvania Rule of Criminal Procedure 902(E)(1) states that “no
discovery shall be permitted at any stage of the proceedings, except upon
leave of court after a showing of exceptional circumstances.” Pa.R.Crim.P.
902(E)(1).
Neither the PCRA nor the Pennsylvania Rules of Criminal
Procedure define the term “exceptional circumstances.” This
Court, however, has held that the trial court, in its discretion[,]
determines whether a case is exceptional and warrants discovery.
Thus, we will not disturb a court’s determination regarding the
existence of exceptional circumstances unless the court abused its
discretion.
Commonwealth v. Watley, 153 A.3d 1034, 1048 (Pa. Super. 2016)
(citations, brackets, and some quotation marks omitted).
Here, Davis baldly alleges that these policies would have supported his
claims of ineffectiveness, but does not indicate how disclosure of these policies
would have supported these claims. See Watley, supra. Moreover, as
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discussed supra, Davis’s convictions were supported by overwhelming
evidence, and there is no evidence to suggest that production of these policies
would have supported his case at trial. See Watley, supra. As Davis
suffered no prejudice, this claim fails.
In his eighth claim, Davis alleges that the PCRA court erred in denying
his Motion for an evidentiary hearing. See Brief for Appellant at 30.
Because the record reflects that Davis’s arguments lack arguable merit,
and he failed to establish that he suffered actual prejudice, we conclude that
the PCRA court did not abuse its discretion in dismissing Davis’s Petition
without a hearing. See Brown, supra; Baumhammers, supra.
Based on the foregoing, we affirm the PCRA court’s Order.
Order affirmed.
Judge Shogan joins the memorandum.
Judge Lazarus concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2020
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