Com. v. Stone, C. ( 2023 )

J-S23006-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER STONE :
:
Appellant : No. 1962 EDA 2021
Appeal from the PCRA Order Entered September 8, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008129-2017,
CP-51-CR-0008130-2017, CP-51-CR-0008767-2017,
CP-51-CR-0008768-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER STONE :
:
Appellant : No. 1963 EDA 2021
Appeal from the PCRA Order Entered September 8, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008129-2017,
CP-51-CR-0008130-2017, CP-51-CR-0008767-2017,
CP-51-CR-0008768-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER STONE :
:
Appellant : No. 1964 EDA 2021
Appeal from the PCRA Order Entered September 8, 2021
J-S23006-23
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008129-2017,
CP-51-CR-0008130-2017, CP-51-CR-0008767-2017,
CP-51-CR-0008768-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER STONE :
:
Appellant : No. 1965 EDA 2021
Appeal from the PCRA Order Entered September 8, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008129-2017,
CP-51-CR-0008130-2017, CP-51-CR-0008767-2017,
CP-51-CR-0008768-2017
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 12, 2023
Christopher Stone appeals from the order dismissing his timely petition
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Stone claims his guilty plea was unlawfully induced. After careful
review, we affirm.
On August 1, 2017, Stone shot two people in Philadelphia. The shooting
was witnessed by James and Jasmine Smith. Almost three weeks later, Stone
returned to the location of the shooting, encountered James and Jasmine
Smith, pointed a gun at them and made a comment about them knowing him.
James Smith then called the police and Stone was apprehended. On
September 3, 2019, Stone plead guilty to two counts of attempted murder,
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two counts of possession of an instrument of crime, two counts of witness
intimidation and persons not to possess firearms. Pursuant to negotiations
with the Commonwealth, Stone was sentenced to nine and a half to nineteen
years’ incarceration followed by two years’ probation.
Stone did not file a direct appeal to this Court, instead filing this timely
PCRA petition on August 20, 2020. Counsel was appointed and filed an
amended petition.
In these filings, Stone claimed that his guilty plea was not entered
knowingly, voluntarily, and intelligently due to plea counsel’s ineffectiveness.
The PCRA court entered an order dismissing Stone’s petition without a hearing
on September 8, 2021. This timely appeal followed.1
All four of Stone’s claims of PCRA court error are based on his contention
that plea counsel was ineffective. When we review an order dismissing a PCRA
petition we determine whether the decision is supported by the record and
free of legal error. See Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.
Super. 2016). Counsel is presumed effective and the person claiming
ineffectiveness must prove otherwise. See Commonwealth v. Koehler, 36
A.3d 121, 178 (Pa. 2012). To succeed on a claim of ineffective assistance of
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1 Stone filed four separate notices of appeal to this Court for each of his trial
court dockets. Each of Stone’s notices of appeal contained all four lower court
docket numbers, implicating Commonwealth v. Walker, 185 A.3d 969, 977
(Pa. 2018). However, because they were properly filed separately and
subsequently consolidated sua sponte by this Court, Stone did not violate the
dictates of Walker. See Commonwealth v. Johnson, 236 A.3d 1141, 1148
(Pa. Super. 2020) (en banc).
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counsel, a petitioner must plead and prove three things: “(1) that the
underlying issue has arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice resulted from counsel’s act or
failure to act.” Commonwealth v. Stultz, 114 A.3d 865, 880 (Pa. Super.
2015) (citation omitted). If the petitioner fails to meet any one of these
prongs, their claim fails. See id.Furthermore, a PCRA court may dismiss a petition without a hearing if
the claims in the petition are “patently frivolous.” Commonwealth v.
Grayson, 212 A.3d 1047, 1054 (Pa. Super. 2019) (citation omitted). The
decision to hold an evidentiary hearing lies within the discretion of the PCRA
court and we will not reverse such a decision absent an abuse of discretion.
See Commonwealth v. Maddrey, 205 A.3d 323, 327 (Pa. Super. 2019).
In his first issue on appeal, Stone argues that counsel was ineffective
for failing to file a motion to suppress the testimony of Commonwealth witness
Jasmine Smith. See Appellant’s Brief, at 14. He contends the PCRA court erred
in dismissing this claim without a hearing.
Initially, we note that Stone does not cite to any authority by which,
under these facts, plea counsel could have suppressed Smith’s testimony. In
fact, Stone does not meaningfully develop the suppression argument beyond
mere assertion. He has therefore waived any such claim. See
Commonwealth v. Armolt, 294 A.3d 364, 376-77 (Pa. 2023).
Alternatively, Stone claims that counsel was ineffective because he
failed to file a motion for Smith to be appointed counsel to consult with her
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regarding her Fifth Amendment right to silence. See Appellant’s Brief at 14.
Stone asserts that Smith, an eyewitness to the shooting and one of the victims
of witness intimidation, had a separate pending criminal case at the time she
would have been called to testify against him. See id. Stone argues that
independent counsel would have advised Jasmine Smith not to testify due to
her prior record and open case. See id. Further, he argues that Jasmine Smith
would have been eliminated as a witness against him, a factor which may have
changed his decision to plead guilty. See id. at 15.
Stone’s argument on this claim is underdeveloped to the point of almost
being undeveloped. However, he does assert that it “is almost inconceivable”
that Jasmine Smith would have testified at Stone’s trial if she had the advice
of independent counsel regarding her Fifth Amendment rights. See Appellant’s
Brief, at 14. The Fifth Amendment’s prohibition on self-incrimination prevents
a court from compelling a witness to “disclose[] a fact that would form a
necessary and essential part of a crime[.]” Commonwealth v. Taylor, 230
A.3d 1050, 1063 (Pa. 2020).
Stone failed to identify any fact that Smith would have testified to that
would have exposed her to criminal liability. Even on appeal, he fails to identify
any such fact. As a result, he has failed to establish the PCRA court erred in
dismissing this claim without a hearing.
In his second issue on appeal, Stone claims that plea counsel was
ineffective for failing to inform him that two of the police officers involved in
the case had been placed on the District Attorney’s Office’s “do not call” list
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and that Jasmine Smith was hoping to receive a plea deal in exchange for her
testimony. See Appellant’s Brief at 15. Stone argues that plea counsel
withheld the information, relayed to him in an email from the Commonwealth,
and therefore unlawfully induced Stone’s guilty plea. See id. at 16. The email
from the Commonwealth specified that the prosecutor assigned to Stone’s
case had no communication with Jasmine Smith regarding a plea deal and
explained the procedure for Stone to call the officers to testify. See id. at
Exhibit C. Stone makes no attempt to argue the three prongs of
ineffectiveness, simply calling for an evidentiary hearing to resolve the factual
discrepancy of whether counsel informed him of these facts. See id. at 16.
Stone did not raise this issue in his PCRA petition. In fact, this issue
was first broached in an attachment to the Commonwealth’s motion to dismiss
Stone’s petition. In his response to that motion, Stone did not raise any issue
with the “do not call” list officers. Since Stone has raised this issue for the first
time on appeal, he has waived it. See Commonwealth v. Reid, 99 A.3d 470,
494 (Pa. 2014).
However, even if the claim were not waived, it would be meritless. To
establish counsel’s ineffectiveness prejudiced Stone, he must show that if
counsel had not committed the alleged errors, there is a reasonable probability
that he would not have pleaded guilty. See Commonwealth v. Pier, 182
A.3d 476, 479 (Pa. Super. 2018). Stone has failed to show how he was
prejudiced by counsel allegedly not informing him of Jasmine Smith’s criminal
record and the police officers’ status. Even assuming that this information
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would have allowed Stone to irretrievably damage Smith’s proposed
testimony, there was another available eyewitness. Further, Stone alleged no
facts capable of establishing that the “do not call” list officers had significant
involvement in this case.
Without developing an argument, Stone states that the Commonwealth
withheld Brady2 material by failing to disclose Jasmine Smith’s criminal record
and that certain police officers were on the “do not call” list. See Appellant’s
Brief at 13. In order to successfully claim a Brady violation, the accused must
show that the evidence in question is either exculpatory or impeaching, it was
suppressed by the Commonwealth, and he was prejudiced by the suppression.
See Commonwealth v. Natividad, 200 A.3d 11, 26 (Pa. 2019). Here, once
again, Stone failed to plead any facts capable of establishing that these officers
were significantly involved in this case, or that the Commonwealth failed to
disclose any relevant information about Jasmine Smith’s pending case. Stone’s
second issue merits no relief.
Stone’s third issue on appeal is that he did not freely, voluntarily, and
intelligently enter into his guilty plea under all the circumstances. See
Appellant’s Brief at 17. Stone repeats his claims regarding Jasmine Smith’s
prior criminal record and the police officers involved in his case and claims
that counsel’s concern for the potential sentence he faced in this case as well
as the trial court’s reputation for imposing severe sentences, led to his
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2 See Brady v. Maryland, 373 U.S. 83 (1963).
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unlawful inducement to plead guilty. See id. at 17-8. As noted above, Stone
failed to plead sufficient facts to create a prima facie case that counsel was
ineffective. The same is true for the other circumstances he highlights under
this argument. Beyond mere boilerplate assertion, he pleaded no facts to
establish either that counsel was irrationally concerned with the possible
sentence, or that the sentencing judge was known for imposing severe
sentences. Accordingly, we can find no error or abuse of discretion in the PCRA
court’s dismissal of this claim without a hearing.
In Stone’s final issue on appeal, he claims that the trial court accused
counsel of witness intimidation, allegedly unlawfully inducing his guilty plea.
See Appellant’s Brief at 18. Stone refers to an interaction that occurred
between counsel and the trial court at a trial readiness conference on August
21, 2019. See N.T. 8/21/19 at 23-24. At the conference, the trial court
addressed alleged communication between Stone’s mother and one of the
victims. See id. at 20-22. This led to counsel informing the trial court that the
victim was reaching out to Stone’s mother and counsel intended to determine
why the two were communicating. See id. at 23-24. The trial court advised
counsel not to put himself in a position where he would become a witness in
the case, as this might pose ethical issues under the Rules of Professional
Conduct. See id. Stone asserts that this advice amounted to both the trial
court accusing counsel of intimidating or tampering with the witness and
intimidating counsel to convince Stone to plead guilty. See Appellant’s Brief
at 18.
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The record reflects no such accusation or threat. The trial court raised a
reasonable concern about possible witness intimidation. See N.T. 8/21/19 at
20. When trial counsel indicated that he believed the victim had reached out
to Stone’s mother, see id. at 23, the trial court merely cautioned trial counsel
not to involve himself as a potential witness in this case, see id. at 24. Trial
counsel’s response indicated that he understood the trial court’s concern, and
that he would have another person conduct the investigation to avoid any
ethical issues. See id. Under these circumstances, there is no merit to Stone’s
claim that the trial court threatened or intimidated trial counsel in any way.
Stone’s final issue on appeal merits no relief.
Order affirmed.
Date: 10/12/2023
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