Com. v. Thompson, C. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CHAPEL THOMPSON,
Appellant No. 1531 MDA 2016
Appeal from the PCRA Order August 22, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001547-2012
BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 18, 2017
Chapel Thompson (“Appellant”) appeals from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546, following his convictions for robbery, kidnapping,
conspiracy, theft by extortion, and unlawful restraint.1 We affirm.
The PCRA Court set forth the following factual and procedural
background:
On December 18, 2011, Leroy Freeman went to the Lancaster
City Bureau of Police to report that he had been forced at
gunpoint on three separate occasions to give money to
[Appellant] and his coconspirators, Aaron Robinson and Lennell
Preston. Specifically, on December 11, 2011, all three
individuals came into Freeman’s place of business, a barber shop
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18 Pa.C.S. § 3701(a)(1)(ii), 18 Pa.C.S. § 2901(a)(2), 18 Pa.C.S.
§ 903(a)(1),18 Pa.C.S. § 3923(a)(1), and 18 Pa.C.S. § 2902(a)(1),
respectively.
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in the City of Lancaster, and demanded $5,000.00. Freeman
was forced into the rear of the shop and handcuffed to a pipe.
The victim’s money and identification were taken; a gun was
brandished, and his life was threatened. Freeman told the co-
defendants that he only had $1,500.00 in his bank account at
that time.
Freeman was eventually forced to travel to a bank
automated teller machine outside the City, where the daily
maximum withdrawal amount of $500.00 was removed from the
victim’s account and taken by [Appellant] and his co-
conspirators. The co-defendants told Freeman they would return
the next day for the remainder of the $1,500.00, and
[Appellant] told Freeman if he did not come up with money “it
could get fatal.”
On December 12, 2011, [Appellant] appeared at the
victim’s place of business, demanding the remainder of the
money. Freeman had only been able to remove $500.00 from
the ATM that day because he did not have his identification
which had been stolen from him the night before. [Appellant]
left and returned with Freeman’s identification and forced the
victim to go with him to the bank to withdraw additional funds
from his account.
The third incident occurred on December 18, 2011, and
involved only co-defendant Aaron Robinson. After returning to
the shop, Robinson demanded money and proceeded to assault
Freeman and threaten him with a firearm. He allowed Freeman
15 minutes to obtain additional money “or he was going to
shoot [Freeman].” After Robinson left the shop, Freeman got in
his car and, instead of going to the bank, he went to the police
to report the robberies and kidnap[p]ings.
As a result, on December 27, 2011, the Commonwealth
charged [Appellant] and his co-defendants Robinson and
Preston with three counts of robbery, two counts of
kidnap[p]ing to facilitate a felony, criminal conspiracy, theft by
extortion, and unlawful restraint/risking serious injury based on
these armed robberies involving Freeman that took place
between December 12 and December 18, 2011. [Appellant] was
ultimately arrested on January 4, 2012.
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On January 9, 2013, a motion in limine was filed in which
[Appellant] requested the Court preclude the admission of a
number of items seized from his house on January 4, 2012, at
the time of his arrest, particularly two handguns, a Glock and a
Makarov, along with a set of handcuffs. This motion was
addressed at a pre-trial hearing held on January 14, 2013. Co-
defendant Preston’s statement to the police put the Glock in
[Appellant’s] hand and the handcuffs in his own during the
course of one of the robberies. As such, [the trial court] ruled
that the Glock handgun and handcuffs recovered from
[Appellant’s] house were admissible evidence, but nothing else
found at his home, including the Makarov, would be allowed in
unless the door was opened. Trial counsel did not note an
objection to this decision, and stated that he understood what
the [c]ourt’s decision was. During this hearing, [Appellant’s]
trial attorney also orally joined Robinson’s motion to sever the
cases. I denied this motion and, on January 16, 2013, jury
selection began for the joint trial.
During the course of the trial, counsel for co-defendant
Robinson cross examined the victim of the [kidnappings] and
robberies regarding the gun that was used to facilitate the
crimes. The victim testified that the handgun he observed was
silver and brown. [Appellant’s] counsel thereafter conceded that
the Makarov recovered in [Appellant’s] residence was a blued
steel handgun with “distinctive” brown plastic grips. Therefore,
the Commonwealth argued that the victim’s testimony opened
the door to the admission of the Makarov as the description the
victim provided was similar to that of the Makarov. Defense
attorney Gratton objected to the admission of the evidence
because the door had been opened for its admission by counsel
for co-defendant Robinson, and not [Appellant]. [Appellant’s]
objection was overruled and the Commonwealth was permitted
to introduce the Makarov into evidence.
Consequently, the Commonwealth marked both
handguns—the Glock (Commonwealth Exhibit 6) and the
Makarov (Commonwealth Exhibit 7)—and, at the conclusion of
its case, moved for their admission, along with eight other
exhibits. Attorney Gratton had “[n]o objection” to the
Commonwealth’s exhibits at that time. Trial counsel, however,
did immediately thereafter request a mistrial due to the
admission of the handguns, although he did not specifically
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object to their actual admission. This mistrial request was
denied.
At the close of the Commonwealth’s case, [the trial court]
inquired into whether [Appellant] would be testifying. Trial
counsel informed me that he did not have an answer yet from
[Appellant]. Later, trial counsel stated that he did not have any
witnesses on behalf of [Appellant]. Following a three-day trial,
[Appellant] was found guilty of the robberies, kidnap[p]ings,
and related offenses.
PCRA Court Opinion, 8/22/16, at 1–5 (footnotes and citations omitted).
Appellant received an aggregate sentence of twenty-three to forty-six
years of incarceration and filed timely post-sentence motions, which the trial
court denied by opinion and order dated June 24, 2013. Appellant filed a
timely appeal to this Court, and we affirmed the judgment of sentence on
May 7, 2014. Commonwealth v. Thompson, 104 A.3d 40, 1346 MDA
2013 (Pa.Super. filed May 7, 2014). Appellant filed a timely notice of appeal
to the Supreme Court of Pennsylvania which was denied on October 15,
2014. Commonwealth v. Thompson, __ A.3d __, 391 MAL 2014 (Pa.
2014). On January 11, 2016, Appellant filed the instant timely PCRA
petition. The PCRA court held a hearing regarding Appellant’s PCRA petition
on March 11, 2016. The PCRA court denied the PCRA petition, and Appellant
timely appealed to this Court.
Appellant presents the following issues for our review:
1. Whether appellate counsel was ineffective for failing to raise
the admission of two firearms. The issue was preserved for
appellate review and was even included in counsel’s 1925(b)
statement. [Appellant] was highly prejudiced by the
admission of these firearms. Did the trial court err in holding
that appellate counsel was not ineffective?
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2. Whether trial counsel interfered with [Appellant’s] right to
testify when trial counsel did not tell [Appellant] he has a
right to testify, trial counsel told [Appellant] not to testify
because he would not be convicted, counsel only met with
[Appellant] to discuss his possibility of testifying in two short
meetings, and there was no on-the-record colloquy regarding
his decision?
Appellant’s Brief at 4.
We will review an order dismissing a PCRA petition in the light most
favorable to the prevailing party at the PCRA level. Commonwealth v.
Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). When reviewing the propriety
of an order denying PCRA relief, this Court is limited to determining whether
the evidence of record supports the conclusions of the PCRA court and
whether the ruling is free of legal error. Commonwealth v. Robinson, 139
A.3d 178, 185 (Pa. 2016). The PCRA court’s finding will not be disturbed
unless there is no support for those findings in the certified record.
Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014).
In his first issue, Appellant argues that the PCRA court erred when it
found that Appellant’s appellate counsel was not ineffective for failing to
raise and brief the trial court’s alleged error in the admission of the Glock
semi-automatic gun and the Makarov semi-automatic gun in his appeal to
the Superior Court. Appellant’s Brief at 16. Preliminarily, we note that when
reviewing a claim of ineffective assistance of counsel, “counsel is presumed
effective and will only be deemed ineffective if the petitioner demonstrates
counsel’s performance was deficient and he was prejudiced by that deficient
performance.” Ford, 44 A.3d at 1194 (quoting Commonwealth v.
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Burkett, 5 A.3d 1260, 1271–1272 (Pa. Super. 2010)). The Supreme Court
of Pennsylvania set forth the following three-pronged test Appellant must
satisfy in order to prevail on his claim of ineffective assistance of counsel:
“(1) the underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his or her action or inaction; and (3) the petitioner
suffered prejudice because of counsel’s ineffectiveness.” Commonwealth
v. Paddy, 15 A.3d 430, 442 (Pa. 2011).
There are two guns at issue in this appeal, a Glock and a Makarov,
which were admitted into evidence as Commonwealth’s exhibits numbers six
and seven, respectively. N.T. (Trial), 1/17/13, at 230. Because the grounds
for their admissibility are different, we will discuss each gun separately.
Turning first to the Glock, trial counsel filed a motion in limine seeking,
inter alia, to preclude admission of the Glock and a pair of handcuffs.
Appellant’s Motion in Limine, 1/9/13, at 1–2. At the pretrial hearing, while
discussing the motion in limine, trial counsel noted that “[o]ut of all the
things seized at the time of [Appellant’s] arrest, [the Glock and the
handcuffs] would be the only two things that in any way could arguably
relate to the offenses for which [Appellant] stands before Your Honor
prepared to go to trial.” N.T. (Pretrial Hearing), 1/14/13, at 50. He also
stated, “In any event, Your Honor, I do think the argument remains that the
most that should come in out of this extensive list of fire-arms related things
would be the Glock and the handcuffs.” Id. at 53. Further, we note that
when the trial court admitted the Glock as Commonwealth’s exhibit number
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six, trial counsel failed to lodge an objection to its admissibility. 2 N.T.
(Trial), 1/17/13, at 232–234. Thus, any issues relating to its admissibility
are waived. See, e.g., Commonwealth v. Burchard, 503 A.2d 936, 938–
939 (Pa. Super. 1986) (“Our Courts have repeatedly held that issues must
be preserved at each and every stage of review; otherwise, they are deemed
waived and cannot subsequently be raised on appeal”). Because the issue of
the admissibility of the Glock was not preserved for appeal by trial counsel,
it is without arguable merit and appellate counsel cannot be found to be
ineffective for failing to raise the issue. Paddy, 15 A.3d at 442.
Turning to the Makarov, we first note that the trial court granted
Appellant’s motion in limine to exclude the Makarov. N.T. (Pretrial Hearing),
1/14/13, at 55. Although the trial court excluded the Makarov and other
evidence, the trial court stated that any of the excluded evidence would
remain inadmissible “unless the door is open.” Id. As the trial progressed,
Appellant’s co-defendant’s counsel asked the victim about the guns used
during the robbery, and the victim testified that the gun was “maybe silver
and brown.” N.T. (Trial), 1/17/13, at 188. The Makarov is a blued steel gun
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Although trial counsel did not object to the admission of the gun, he later
moved for a mistrial on the grounds that the Glock should not have been
admitted into evidence. N.T. (Trial), 1/17/13, at 327. This does not
preserve the issue for appeal. “We have long held that ‘[f]ailure to raise a
contemporaneous objection to the evidence at trial waives that claim on
appeal.’” Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa. Super.
2013) (quoting Commonwealth v. Pearson, 685 A.2d 551, 555 (Pa.
Super. 1996)).
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with brown grips. Id. at 225. During a sidebar, trial counsel for Appellant
objected to admitting the Makarov into evidence because the victim testified
that the gun was silver, not blued steel, and because Appellant should not
be prejudiced because his co-defendant’s counsel opened the door for the
admission of the gun. Id. at 226. The trial court denied the objection and
allowed a law enforcement officer to testify about the Makarov found in
Appellant’s home. Id. at 227. Thus, there has been no waiver of
Appellant’s argument regarding the admissibility of the Makarov.
As discussed supra, Appellant must meet the following three-pronged
test to establish ineffective assistance of counsel: “(1) the underlying legal
claim has arguable merit; (2) counsel had no reasonable basis for his or her
action or inaction; and (3) the petitioner suffered prejudice because of
counsel’s ineffectiveness.” Paddy, 15 A.3d at 442. Appellant is unable to
prove that the underlying claim, namely that the trial court erred when it
admitted the Makarov into evidence, has arguable merit and his ineffective
assistance of counsel claim fails for that reason.
Preliminarily, we note that the admission of evidence is within the
sound discretion of the trial court. Commonwealth v. Washington, 63
A.2d 797, 805 (Pa. Super. 2013). Thus, we will review the trial court’s
ruling on the admissibility of that Makarov for an abuse of discretion.
Commonwealth v. Elliot, 80 A.3d 415, 446 (Pa. 2013). As the Supreme
Court of Pennsylvania held:
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An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous. Typically, all relevant evidence, i.e., evidence
which tends to make the existence or non-existence of a
material fact more or less probable, is admissible, subject to the
prejudice/probative value weighing which attends all decisions
upon admissibility.
Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007) (internal citations
and quotations omitted).
Appellant argues that the trial court’s decision to admit the Makarov
was unduly prejudicial for a litany of reasons, including: its admission
persuaded the jury to convict only because Appellant had a gun, the
admission of the gun diverted the jury’s attention from the facts of the case;
and the admission of the gun caused the jury to convict Appellant “based on
[Appellant] as a person, not on what he has done.” Appellant’s Brief at 38.
Appellant also argues that the admission of the gun constituted a violation of
his due process right to a fundamentally fair trial. Id. None of these
arguments has merit.
As the PCRA properly noted, “[r]elevance is the threshold for
admissibility of evidence.” PCRA Court Opinion, 8/22/16, at 19 (quoting
Commonwealth v. Semenza, 127 A.3d 1, 7 (Pa. Super. 2015)). “Evidence
is relevant if it logically tends to establish a material fact in the case, tends
to make a fact at issue more or less probable or supports a reasonable
inference or presumption regarding a material fact.” Id. (quoting
Commonwealth v. Drumheller, 805 A.2d 893, 894 (Pa. 2002)). Pursuant
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to Pennsylvania Rule of Evidence 403, a trial court may exclude relevant
evidence if its probative value is outweighed by the danger, inter alia, of
unfair prejudice or misleading the jury. Pa.R.E. 403.
The trial court admitted the Makarov because it, along with the Glock
and handcuffs, were found in Appellant’s home within two weeks of the
crimes. PCRA Court Opinion, 8/22/16, at 20. The trial court found that the
admission of the Makarov tended to make a fact or consequence in the crime
more probable, as required by Pennsylvania Rule of Evidence 401. Id.
Specifically, the PCRA court found that evidence of the guns was admissible
to show Appellant had the ability to acquire a gun and had the opportunity
to commit the crimes for which he was convicted. Id. Further, the Makarov
matched the victim’s description of the gun at trial. N.T. (Trial), 1/17/13, at
188. Appellant’s co-defendant testified that Appellant had a gun during the
commission of the crime and provided the handcuffs used to cuff the victim
to a pipe in the back room. Id. at 248–249. The PCRA court also noted that
the possession of a gun is not a bad act and the jury did not hear evidence
that Appellant committed a crime by possessing the gun. PCRA Court
Opinion, 8/22/16, at 20.
Given all of the above, the admission of the Makarov does not
constitute an abuse of the trial court’s discretion. See Commonwealth v.
Williams, 640 A.2d 1251, 1260 (Pa. 1994) (finding that a weapon found in
the possession of a defendant may be admitted into evidence, “even though
it cannot positively be identified as the weapon used in the commission of a
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particular crime, if it tends to prove that the defendant had a weapon similar
to the one used in the perpetration of the crime.”). See also
Commonwealth v. Christine, 125 A.3d 394, 401 (Pa. 2015) (“Possession
of a handgun may be relevant even if the particular gun possessed cannot
be proven to be the one used in the crime.”); Commonwealth v. Holmes,
No. 2704 EDA 2011, 2013 WL 11279593 (Pa. Super. 2/22/2013) (applying
Williams and finding that guns recovered in defendant’s basement were
admissible to show access to firearms). To the extent that it is not certain
that the Makarov was the actual weapon used in the commission of the
crime, that uncertainty speaks to the weight of the evidence. Williams, 640
A.2d at 1260. The trial court did not err when it admitted the Makarov into
evidence; thus the underlying issue was without merit, and appellate counsel
cannot be deemed ineffective for failing to raise a meritless claim. Paddy,
15 A.3d at 442.
In his second issue, Appellant argues that his trial counsel was
ineffective for failing to call Appellant as a witness at trial, thereby
interfering with his right to testify. Appellant’s Brief at 42. The Supreme
Court of Pennsylvania held in Commonwealth v. Nieves:
In order to sustain a claim that counsel was ineffective for failing
to advise the appellant of his rights in this regard, the appellant
must demonstrate that counsel interfered with his right to
testify, or that counsel gave specific advice so unreasonable as
to vitiate a knowing and intelligent decision to testify on his own
behalf.
Nieves, 746 A.2d 1102, 1104 (Pa. 2000).
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In support of his claim, Appellant argues that he was unaware that he
had the right to testify and that he believed he had no choice but to follow
trial counsel’s advice. Appellant’s Brief at 45. Appellant also argues that the
lack of an on-the-record colloquy regarding his right to testify and decision
not to do so is evidence of the fact that his waiver of his right to testify was
not knowing, voluntary, or intelligent. Id. at 46.
The PCRA court found that trial counsel credibly testified at the PCRA
hearing that “on at least two occasions, he specifically explained and
thoroughly discussed with [Appellant] whether he should testify at trial: one
meeting occurred pre-trial and one meeting occurred during the trial.” PCRA
Court Opinion, 8/22/16, at 11–12 (citing N.T. (PCRA Hearing), 3/11/16 at 8,
15). Conversely, the PCRA Court found that Appellant’s testimony regarding
his lack of understanding of his right to testify was not credible.3 It is well
established that “[t]he PCRA Court’s credibility determinations, when
supported by the record, are binding on this Court.” Commonwealth v.
Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014). Thus, this Court will defer
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In support of its finding that Appellant’s testimony on this issue was not
credible, the PCRA court noted that Appellant’s testimony on the issue
vacillated between Appellant making the decision and trial counsel making
the decision for him. PCRA Court Opinion, 8/22/16, at n. 9. The PCRA Court
also relied on the fact that at the time of trial, Appellant was twenty-eight
years old and had his G.E.D.; thus, the argument that he could not “discern
the difference between someone giving legal advice and someone dictating a
course of action is unsupportable.” Id.
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to the PCRA court’s credibility determination regarding the testimony of
Appellant’s trial counsel and Appellant.
This finding is supported by the testimony at the PCRA hearing.
During that hearing, trial counsel testified that he informed Appellant of the
pros and cons of testifying and that the decision whether to testify or not
was made by Appellant. N.T. (PCRA Hearing), 3/11/16, at 15. Trial counsel
also testified that he would have put Appellant on the witness stand if he
had wanted to testify. Id. We also note that during the trial, the judge
asked counsel who they would be calling as a witness and Appellant’s trial
counsel responded, “The only thing I can tell you, I don’t have a hundred
percent answer out of [Appellant]…I don’t think [Appellant is] going to, but
I’ll tell him we need a final answer.” N.T. (Trial), 1/18/13, at 338.
Further, during the PCRA hearing, Appellant testified that it was his
decision not to testify, based upon trial counsel’s advice:
Q: So it was your decision not to testify?
A: I guess.
Q: Based on his advice, it was your decision, though?
A: My decision was to tell my version of the story. His decision
was that I wouldn’t have been found guilty, so just leave it as
it is. And I agree with his decision, I guess.
Q: You agree with his decision for you not to testify?
A: Yes.
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N.T. (PCRA Hearing), 3/11/16, at 24. As the PCRA Court found, the
evidence established that after consulting with trial counsel, Appellant made
the decision not to testify. PCRA Court Opinion, 08/22/16, at 11.
Appellant argues in the alternative that trial counsel’s advice that
Appellant not take the stand was so unreasonable that it vitiated Appellant’s
knowing and intelligent waiver. Appellant’s Brief at 45. This claim is without
merit. Trial counsel advised Appellant not to testify for several reasons, and
this Court has repeatedly held that “[c]ounsel is not ineffective where
counsel’s decision not to call the defendant was reasonable.”
Commonwealth v. O’Bidos, 849 A.2d 243, 250 (Pa. Super. 2004).
In this case, trial counsel testified that he advised against Appellant
testifying for several reasons, including that Appellant’s testimony could
open the door to a significant amount of drug-related evidence that was
discovered at Appellant’s residence, which had been excluded through
Appellant’s pretrial motion in limine. N.T. (PCRA Hearing), 3/11/16, at 16–
17. Trial counsel also testified that he knew the district attorney in this case
was aggressive on cross-examination and may have pushed Appellant to
open the door to that evidence. Id. at 17. He also testified that there was
little physical evidence that placed Appellant at the bank with the victim—but
that Appellant’s proposed testimony would do specifically that. Id. at 15.
Finally, trial counsel advised Appellant against testifying because he believed
there were significant credibility issues with Appellant’s proposed testimony.
Id. at 15–16. The above reasons establish that trial counsel was acting
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reasonably when he advised Appellant against testifying in this case. See,
e.g., Commonwealth v. Puskar, 951 A.2d 267, 280 (Pa. 2008) (finding
that counsel was not ineffective for not offering the testimony of individuals
who could open the door to evidence that had been excluded); O’Bidos, 849
A.2d at 250 (finding counsel was not ineffective for counseling against
defendant taking stand on his own behalf where there were issues that could
be brought out on cross examination, including, inter alia, defendant’s prior
criminal history and the circumstances surround his arrest and where
counsel believed that the jury would negatively perceive aspects of
defendant’s proposed testimony).
Appellant has failed to establish that trial counsel interfered with his
right to testify or that trial counsel offered advice so unreasonable so as to
vitiate Appellant’s knowing and intelligent decision to testify on his own
behalf. Thus, Appellant’s second issue does not warrant PCRA relief on
those grounds.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, we affirm the order dismissing Appellant’s PCRA
petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
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