Com. v. Young, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDRE D. YOUNG
Appellant No. 408 WDA 2015
Appeal from the PCRA Order January 22, 2015
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000315-2012
CP-33-CR-0000316-2012
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDRE D. YOUNG
Appellant No. 409 WDA 2015
Appeal from the PCRA Order February 17, 2015
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000315-2012
CP-33-CR-0000316-2012
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 16, 2015
*
Retired Senior Judge assigned to the Superior Court.
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Appellant Andre D. Young appeals pro se from the order entered in the
Jefferson County Court of Common Pleas, which dismissed his petition for
relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
This Court previously set forth the relevant facts and procedural
history underlying this appeal as follows:
On April 24, 2012, state police utilized a confidential
informant (“CI-1”) to conduct a controlled purchase of
heroin from Appellant and co-defendant, Anthony Harris,
at 229½ Cranberry Alley in Punxsutawney. On April 30,
2012, police utilized another informant (“CI-2”) to conduct
a second controlled purchase of heroin directly from
Appellant at the Cranberry Alley residence. Following the
second transaction, police stopped Appellant outside the
residence, performed a frisk, and recovered prerecorded
buy money from his pocket.
At No. 315 of 2012, the Commonwealth filed a criminal
information charging Appellant with conspiracy in
conjunction with the April 24, 2012 controlled purchase.
At No. 316 of 2012, the Commonwealth filed a criminal
information charging Appellant with possession of a
controlled substance and delivery of a controlled substance
in conjunction with the April 30, 2012 controlled purchase.
On September 7, 2012, Appellant filed omnibus pretrial
motions to suppress evidence and compel discovery. The
court conducted a hearing on the motions on October 31,
2012. After receiving testimony, the court denied the
suppression motions and granted the motion to compel
discovery. At the conclusion of the hearing, the
Commonwealth moved to consolidate the charges for trial.
Appellant objected to consolidation, but the court granted
the Commonwealth’s motion.
Following trial, a jury convicted Appellant of [possession of
a controlled substance, delivery of a controlled substance,
1
42 Pa.C.S. §§ 9541-9546.
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and criminal conspiracy2]. On November 14, 2012, the
court sentenced Appellant to thirty-two (32) months to six
(6) years’ imprisonment for the conspiracy conviction at
No. 315 of 2012. The court imposed a consecutive
sentence of seven and one-half (7½) to fifteen (15) years’
imprisonment for the drug convictions at No. 316 of 2012.
Appellant timely filed post-sentence motions at both
docket numbers on Monday, November 26, 2012, which
included a challenge to the weight of the evidence. On
November 30, 2012, the court denied the post-sentence
motions. Appellant did not file a notice of appeal.
On January 3, 2013, Appellant filed a counseled motion for
leave to file a notice of appeal nunc pro tunc at both
docket numbers. That same day, the court granted
Appellant’s motion. Also on January 3, 2013, Appellant
timely filed notices of appeal nunc pro tunc at both docket
numbers… [T]his Court consolidated the appeals sua
sponte.
Commonwealth v. Young, No. 40 WDA 2013, unpublished memorandum
at 2-3 (Pa.Super. filed October 25, 2013).
On October 25, 2013, this Court affirmed Appellant’s judgment of
sentence. On September 29, 2014, Appellant timely filed a pro se PCRA
petition. The PCRA court appointed counsel on October 7, 2014. On
January 22, 2015, Appellant’s PCRA counsel filed a petition to withdraw
along with a no-merit letter pursuant to Turner3 and Finley.4 That same
day, the court issued a notice of intent to dismiss the petition without a
hearing, pursuant to Pennsylvania Rule of Criminal Procedure 907. On
2
35 P.S. § 780-113(a)(16), (30), and 18 Pa.C.S. § 903, respectively.
3
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
4
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
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January 30, 2015, Appellant filed a response to the court’s Pa.R.Crim.P. 907
notice, requesting the court appoint him new counsel to proceed with his
appeal. On February 17, 2015, the court denied Appellant’s request for
additional PCRA counsel, dismissed Appellant’s PCRA petition, and granted
counsel’s petition to withdraw.
On February 20, 2015, Appellant timely filed a pro se notice of appeal.
On February 25, 2015, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b), and he timely complied on March 9, 2015.5
Appellant raises the following issues for our review:
DID THE PCRA COURT ERR INSOFAR AS ADOPTING PCRA
COUNSEL[’]S “NO[-]MERIT” LETTER SEEKING THEN
GRANTING WITHDRAWAL AS ATTORNEY FOR APPELLANT
IN LIEU OF FILING A PCRA OPINION WHEN SUCH A
PRACTICE DID NOT DEMONSTRATE IN THE CERTIFIED
RECORD ON APPEAL THAT THE PCRA COURT CONDUCTED
A MEANINGFUL INDEPENDENT REVIEW OF APPEAL ISSUES
OF APPELLANT[?]
WHETHER [PCRA] COUNSEL[’S] PRETEXTED TENDERED
DEFENSE AND PERFUNCTORY PERFORMANCE
SUMMARIZED IN THE FOLLOWING DERELICTIONS OF
DUTY AND BREACH OF PROFESSIONAL RESPONSIBILITY
TO THE [LAWYER][-]CLIENT RELATIONS, RENDERED HIS
BELOW EFFECTIVE ASSISTANCE, THAT FORFEITING AND
DEPRIVING APPELLANT OF HIS RIGHT TO A MEANINGFUL
REVIEW UNDER THE [PCRA]?
WAS TRIAL COUNSEL INEFFECTIVE IN FAILING TO ADVISE
APPELLANT OF [THE POSSIBILITY] OF [A] 15 YEAR
MAXIMUM SENTENCE AS HE WAS GIVEN [AND]
PREVENTING HIM FROM ACCEPTING THE 5 YEAR
5
The PCRA court filed a Pa.R.A.P. 1925(a) opinion on March 12, 2015.
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MAXIMUM OFFERED IN A PLEA DEAL [WHEN] APPELLANT
WAS UNDER THE IMPRESSION THAT 5 YEARS WAS THE
ABSOLUTE MAXIMUM SENTENCED ALLOWED?
WAS TRIAL COUNSEL INEFFECTIVE IN FAILING TO
CHALLENGE [NUMEROUS] ASPECTS OF APPELLANT’S
SENTENCE WHICH WERE UNREASONABLE, AND BASED ON
INCORRECT INFORMATION WHICH RESULTED IN AN
EXCESS[IVE SENTENCE]?
WAS TRIAL COUNSEL INEFFECTIVE IN FAILING TO
CHALLENGE AND PRESERVE APPELLANT[’]S SIXTH
AMENDMENT RIGHT TO CONFRONT WITNESS[ES] WHEN
[THE] TRIAL COURT UNCONSTITUTIONALLY ALLOWED
INTRODUCTION OF AFFIDAVIT TO LAB REPORTS OF NON
TESTIFYING WITNESS[?]
DID THE PCRA COURT ERR [IN] DENYING APPELLANT
PCRA RELIEF WITHOUT AN [EVIDENTIARY] HEARING ON
APPELLANT’S PCRA CLAIM OF TRIAL COUNSEL[’]S
INEFFECTIVENESS?
Appellant’s Brief at ii.6, 7
Our standard of review is well settled. “In reviewing the denial of
PCRA relief, we examine whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Fears,
86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).
6
We note that Appellant failed to provide a statement of questions involved
as required under Pa.R.A.P. 2116. His table of contents indicates that the
“Statement of Questions Involved” will appear on page v, but page v is not
included in his brief. However, because he has identified the specific issues
he asks us to review in his “Table of Contents” section, his failure to comply
with Pa.R.A.P. does not impede our ability to review the issues. Accordingly,
we will address the merits of Appellant’s claims. See Commonwealth v.
Long, 786 A.2d 237, 239 n.3 (Pa.Super.2001) aff'd, 819 A.2d 544(Pa.2003).
7
We have re-ordered Appellant’s issues for purposes of disposition.
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“The 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 prevailing party
at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014)
(citation omitted). “It is well-settled that a PCRA court’s credibility
determinations are binding upon an appellate court so long as they are
supported by the record.” Commonwealth v. Robinson, 82 A.3d 998,
1013 (Pa.2013) (citation omitted). However, this Court reviews the PCRA
court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa.Super.2014) (citation omitted).
In his first two issues, Appellant argues PCRA counsel failed to
thoroughly investigate and amend the issues Appellant raised in his pro se
PCRA petition and that counsel failed to find and raise additional issues of
merit. He further contends the PCRA court impermissibly relied on PCRA
counsel’s “no-merit” letter when denying Appellant’s petition instead of
conducting an independent review of the record. Appellant concludes the
PCRA court erred in denying his petition and granting counsel’s motion to
withdraw, and that we should remand so that he can have effective
assistance of counsel on collateral review. We disagree.
Our Supreme Court has explained the procedure required for court-
appointed counsel to withdraw from PCRA representation:
[Turner and Finley] establish the procedure for
withdrawal of court-appointed counsel in collateral attacks
on criminal convictions. Independent review of the record
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by competent counsel is required before withdrawal is
permitted. Such independent review requires proof of:
1) A ‘no-merit’ letter by PCRA counsel detailing the
nature and extent of his [or her] review;
2) A ‘no-merit’ letter by PCRA counsel listing each
issue the petitioner wished to have reviewed;
3) The PCRA counsel’s ‘explanation’, in the ‘no-merit’
letter, of why the petitioner’s issues were meritless;
4) The PCRA court conducting its own independent
review of the record; and
5) The PCRA court agreeing with counsel that the
petition was meritless.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.2009) (citations
omitted). In addition, this Court has required that PCRA counsel who seeks
to withdraw must:
contemporaneously serve a copy on the petitioner of
counsel’s application to withdraw as counsel, and must
supply the petitioner both a copy of the ‘no-merit’ letter
and a statement advising the petitioner that, in the event
the court grants the application of counsel to withdraw, he
or she has the right to proceed pro se or with the
assistance of privately retained counsel.
Commonwealth v. Friend, 896 A.2d 607, 614 (Pa.Super.2006) (emphasis
deleted). Further,
[i]f counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not reach
the merits of the underlying claims but, rather, will merely
deny counsel’s request to withdraw. Commonwealth v.
Mosteller, 633 A.2d 615, 617 (Pa.Super.1993). Upon
doing so, the court will then take appropriate steps, such
as directing counsel to file a proper Turner/Finley request
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or an advocate’s brief. Commonwealth v. Karanicolas,
836 A.2d 940, 948 (Pa.Super.2003).
However, where counsel submits a petition and no-merit
letter that do satisfy the technical demands of
Turner/Finley, the court—trial court or this Court—must
then conduct its own review of the merits of the case. If
the court agrees with counsel that the claims are without
merit, the court will permit counsel to withdraw and deny
relief. Mosteller, 633 A.2d at 617. By contrast, if the
claims appear to have merit, the court will deny counsel’s
request and grant relief, or at least instruct counsel to file
an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721-22 (Pa.Super.2007).
Instantly, PCRA counsel complied with Turner and Finley. His twenty
(20) page “no-merit” letter details the nature and extent of his review by
stating he interviewed Appellant and reviewed Appellant’s PCRA petition,
docket entries, the case file, all pleadings, court orders, Appellant’s prior
record, and the relevant statutory law and case law. No-Merit Letter, filed
January 22, 2015, at 1. Counsel listed each of the seventeen issues
Appellant raised in his pro se PCRA petition and explained, with references to
relevant law and the record, why each of Appellant’s issues lacked merit.
No-Merit Letter at 3-20. Counsel then stated that, after meaningful review,
he determined there were no additional issues to raise that had any merit.
No-Merit Letter at 20.
Along with his “no-merit” letter, counsel filed a petition to withdraw
and supplied Appellant with a copy of the “no-merit” letter and a statement
advising Appellant that, in the event the court granted counsel’s application
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to withdraw, he had the right to proceed pro se or with the assistance of
privately retained counsel. Therefore, we conclude that PCRA counsel has
satisfied the requirements of Turner and Finley.
The PCRA court then issued a Pa.R.Crim.P. 907 notice of its intent to
dismiss Appellant’s PCRA petition, finding that, after consideration of the
“no-merit” letter and the PCRA court’s “own independent review,” the
Appellant’s issues lacked merit. PCRA Order, filed January 22, 2015. On
February 17, 2015, the PCRA court dismissed Appellant’s petition:
AND NOW,, this 17th day of February 2015, for the
reasons articulated in PCRA counsel’s Petition to
Withdraw/No-Merit letter, which clearly outlines why the
defendant is not entitled to PCRA relief, it is hereby
Ordered and Decreed that his PCRA petition is
DISMISSED.
Opinion and Order Dismissing PCRA Petition, filed February 17, 2015.
Appellant complains the PCRA court should have issued an opinion
instead of relying on PCRA counsel’s “no-merit” letter, and that its decision
to rely on the “no-merit” letter indicates the PCRA court did not conduct an
independent review of the record. Appellant is incorrect.
The PCRA court stated in its Pa.R.Crim.P. 907 notice that it had
conducted an independent review of the record. PCRA counsel’s “no-merit”
letter thoroughly analyzed each of Appellant’s extensive issues with
references to the record and explained how counsel found no additional
issues of merit. The PCRA court did not err by adopting PCRA counsel’s
articulated reasons for dismissing Appellant’s petition, and it did not err in
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granting counsel’s petition to withdraw. We shall now address the merits of
Appellant’s other claims.
In his next three issues, Appellant challenges the effectiveness of his
trial counsel.
This Court follows the Pierce8 test adopted by our Supreme Court to
review claims of ineffective assistance of counsel:
When a petitioner alleges trial counsel’s ineffectiveness in
a PCRA petition, he must prove by a preponderance of the
evidence that his conviction or sentence resulted from
ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place. We have
interpreted this provision in the PCRA to mean that the
petitioner must show: (1) that his claim of counsel’s
ineffectiveness has merit; (2) that counsel had no
reasonable strategic basis for his action or inaction; and
(3) that the error of counsel prejudiced the petitioner-i.e.,
that there is a reasonable probability that, but for the error
of counsel, the outcome of the proceeding would have
been different…
Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal
citations and quotations omitted). “[C]ounsel is presumed to be effective,
and a petitioner must overcome that presumption to prove the three
Strickland[9]/Pierce factors.” Commonwealth v. Simpson, 66 A.3d 253,
260 (Pa.2013) (citation omitted). “If an appellant fails to prove by a
8
Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
9
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984).
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preponderance of the evidence any of the Pierce prongs, the Court need not
address the remaining prongs of the test.” Commonwealth v. Fitzgerald,
979 A.2d 908, 911 (Pa.2010) (citation omitted).
First, Appellant claims that if he had known the maximum sentence for
his crimes, he would have entered into a plea deal with the Commonwealth.
He contends the Commonwealth offered him a two and one half (2½) to five
(5) year sentence in exchange for a guilty plea that he would have taken if
he had known that he could have received a fifteen (15) year sentence. He
argues his trial counsel was ineffective for failing to advise him of the length
of the maximum sentence allowed for his crimes.
Appellant has waived this issue because he failed to include it in his
PCRA petition or his Pa.R.A.P. 1925(b) statement. See Commonwealth v.
Jones, 912 A.2d 268, 278 (Pa.2006) (“[A]n issue is waived where it was not
presented in the original or amended PCRA petition below.”). Moreover, our
independent review of the record did not reveal evidence of a possible plea
bargain with the Commonwealth. Thus, Appellant’s issue merits no relief.
Next, Appellant contends his trial counsel was ineffective for failing to
challenge the discretionary aspect of his sentence. We disagree.
Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super.2011). Before this Court can address such a discretionary
challenge, an appellant must comply with the following requirements:
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An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P. [720]; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
Id.“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa.Super.2011). Further:
A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.
Id. (internal citations omitted).
“An appellant making an excessiveness claim raises a substantial
question when he sufficiently articulates the manner in which the sentence
violates either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.” Commonwealth v. Raven, 97 A.3d 1244, 1253
(Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014) (internal citations
omitted).
Additionally:
In determining whether a substantial question exists, this
Court does not examine the merits of whether the
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sentence is actually excessive. Rather, we look to whether
the appellant has forwarded a plausible argument that the
sentence, when it is within the guideline ranges, is clearly
unreasonable. Concomitantly, the substantial question
determination does not require the court to decide the
merits of whether the sentence is clearly unreasonable.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.2013),
reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)
(internal citations omitted).
Appellant argues his claim that the sentencing court failed to consider
his rehabilitative needs along with his claim that his sentence is “unduly
excessive” presents a substantial question for our review.
This Court has held that “an excessive sentence claim—in conjunction
with an assertion that the court failed to consider mitigating factors—raises a
substantial question.” Commonwealth v. Raven, 97 A.3d 1244, 1253
(Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014) (quoting
Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super.2005)). This
Court has also held that a challenge to the imposition of consecutive
sentences “as unduly excessive, together with [a] claim that the court failed
to consider…rehabilitative needs upon fashioning its sentence, presents a
substantial question.” Commonwealth v. Caldwell, 117 A.3d 763, 770
(Pa.Super.2015).
Thus, Appellant’s claim could have presented a substantial question for
our review. However, even if Appellant’s trial counsel had properly
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preserved a challenge to the discretionary aspects of his sentence and raised
a substantial question, his claim would have merited no relief.
When reviewing a challenge to the discretionary aspects of sentencing,
we determine whether the trial court has abused its discretion.
Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa.Super.2014). We
observe:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed
on appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored
or misapplied the law, exercised its judgment for reasons
of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.
Raven, supra. at 1253 (quoting Commonwealth v. Shugars, 895 A.2d
1270, 1275 (Pa.Super.2006)).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 [Pa.C.S.] § 9721(b), that is, the protection of the
public, gravity of offense in relation to impact on victim and community, and
rehabilitative needs of the defendant. And, of course, the court must
consider the sentencing guidelines.” Commonwealth v. Fullin, 892 A.2d
843, 847-48 (Pa.Super.2006) (internal citations omitted).
Here, the sentencing court imposed an aggravated sentence of thirty-
two (32) months to six (6) years’ imprisonment for the conspiracy
conviction. The sentencing court imposed a consecutive sentence of seven
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and one-half (7½) to fifteen (15) years’ imprisonment for his drug
convictions, which was above the aggravated range. The sentencing court
imposed these sentences after reviewing the pre-sentence investigation
report and listening to Appellant’s testimony. It stated its reasons for
departing from the guidelines on the record and filed a contemporaneous
written statement of reasons for departure above the guidelines pursuant to
42 Pa.C.S. § 9721(b).
The sentencing court provided the following reasons for sentencing
Appellant:
1. [Appellant] is an inter-county drug dealer.
2. [Appellant] made three separate deliveries of heroin to
Russel Peace but was only charged with one.
3. [Appellant] and Anthony Harris engaged in the criminal
enterprise of dealing drugs.
4. [Appellant] and his business partner dealt drugs for
several weeks to many individuals in Punxsutawney.
5. [Appellant] was on probation at the time of this offense.
6. [Appellant] is a poor candidate for rehabilitation having
been in Summit Academy as a juvenile and participating
in many programs and probation without being
successful as he is still engaged in the business of drug
dealing.
7. [Appellant] shows no remorse.
8. [Appellant] is disrespectful to authority.
Contemporaneous Written Statement of Reasons for Departure above the
Guidelines, filed November 15, 2012.
The sentencing court provided sound reasoning for its decision to
depart from the guidelines that reflected consideration of the sentencing
guidelines, the protection of the public, the gravity of Appellant’s offenses in
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relation to the impact on the community, and Appellant’s rehabilitative
needs and lack of success with probation. Thus, the sentencing court did not
abuse its discretion in sentencing Appellant, and any claim challenging the
discretionary aspects of his sentence would have failed. See Fullin, supra.
Trial counsel was not ineffective for failing pursue a claim without merit.
See Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa.2006) (“Counsel
will not be deemed ineffective for failing to raise a meritless claim.”);
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super.2008) (“[I]f the
PCRA court can determine from the record that the sentence was not
excessive, or that adequate reasons were placed on the record for exceeding
the sentencing guidelines, then there is no underlying merit to the
ineffectiveness claim and the claim must fail.”).
Next, Appellant claims trial counsel was ineffective for allowing
introduction of the affidavits of the lab analyst when the lab analyst did not
testify at trial. He argues that the affidavits were testimonial in nature, and
that trial counsel’s failure to object to the introduction of testimonial
evidence that violated his Sixth Amendment right to confront witnesses
against him prejudiced him. We disagree.
This Court has recognized that “an analyst’s certification prepared in
connection with a criminal investigation or prosecution ... is ‘testimonial,’
and therefore within the compass of the Confrontation Clause.”
Commonwealth v. Yohe, 39 A.3d 381, 386 (Pa.Super.2012) aff'd, 79 A.3d
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520 (Pa.2013) (quoting Bullcoming v. New Mexico, ___ U.S.___, 131
S.Ct. 2705, 2713-2714, 180 L.Ed.2d 610 (2011)). Further, “[a]s a rule, if
an out-of-court statement is testimonial in nature, it may not be introduced
against the accused at trial unless the witness who made the statement is
unavailable and the accused has had a prior opportunity to confront that
witness.” Id.In this case, the Commonwealth introduced a lab report that indicated
the substance of the controlled buy was heroin, and the lab analyst did not
testify. Defense counsel, however, had no reason to object to the
introduction of the lab report because Appellant was not arguing that the
substance sold was not heroin. Appellant admitted that someone was selling
heroin, but claimed it was not him, and the Commonwealth’s evidence did
not prove his guilt beyond a reasonable doubt. See N.T., 11/13/12, at 121.
Further, counsel’s failure to object to the admission of this testimony
did not prejudice Appellant. In addition to introducing the lab report, the
Commonwealth presented seven witnesses who testified against Appellant,
four of whom testified that the substance in question was heroin. See N.T.
at 21, 41, 51, 78. Thus, Appellant’s ineffective assistance of counsel claim
fails. See Spotz, 896 A.2d at 1231 (“A defendant is not prejudiced by the
failure of counsel to present merely cumulative evidence.”).
In his final issue, Appellant claims the PCRA court erred in denying him
relief without an evidentiary hearing. Again, we disagree.
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“There is no absolute right to an evidentiary hearing.”
Commonwealth v. Burton, 2015 PA Super 176, *2, ___ A.3d ___ (filed
August 25, 2015) (en banc). “[I]f the PCRA court can determine from the
record that no genuine issues of material fact exist, then a hearing is not
necessary.” Commonwealth v. Springer, 961 A.2d 1262, 1264
(Pa.Super.2008) (quoting Commonwealth v. Jones, 942 A.2d 903, 906
(Pa.Super.2008), appeal denied, 956 A.2d 433 (Pa.2008)). On appeal, we
examine the issues raised in light of the record “to determine whether the
PCRA court erred in concluding that there were no genuine issues of material
fact and in denying relief without an evidentiary hearing.” Burton, supra
(quoting id.).
Here, as discussed supra, Appellant presented no genuine issues of
material fact. Thus, the PCRA court did not err in denying Appellant’s PCRA
petition without conducting an evidentiary hearing, and his final issue merits
no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2015
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