Com. v. Jackson, A. ( 2021 )

J-A08011-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMEER JACKSON :
:
Appellant : No. 1340 EDA 2020
Appeal from the PCRA Order Entered July 7, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007838-2016
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED JUNE 29, 2021
Ameer Jackson appeals from the order entered in the Philadelphia
County Court of Common Pleas on July 7, 2020, dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-
9546, without a hearing. Jackson argues the PCRA court erred in declining to
hold an evidentiary hearing on his claims of ineffective assistance of trial
counsel. After careful review, we affirm.
We previously summarized the factual and procedural history on direct
appeal:
On January 7, 2016, Officer Charles Kapusniak of the Narcotics
Field Unit was conducting surveillance on controlled drug buys
with the use of a confidential informant (CI). On that day, Officer
Kapusniak, along with members of his “squad[,]” gave the CI $20
prerecorded buy money and sent the CI to the intersection of 2200
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* Former Justice specially assigned to the Superior Court.
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Fitzwater where Officer Kapusniak had set up surveillance. There,
Officer Kapusniak observed the CI approach [Jackson],[] engage
him in a brief conversation and then hand[] him [the] prerecorded
buy money in exchange for small items. The CI also received a
phone number. Following this exchange, the CI met with another
police officer, Officer Burada, and the CI gave him red packets,
each containing an off-white chunky substance of alleged crack
cocaine.
On January 15, 2016, a call was made to the number the CI was
given and the male voice on the other end instructed the CI to
meet at a predetermined location. Officer Kapusniak went to the
designated area and set up surveillance. There, he observed
[Jackson] exit a home, meet with the CI, and accept US currency
and prerecorded buy money in exchange for [] small red items.
These two red packets contained an off-white chunky substance
of alleged crack cocaine.
On March 22, 2016, the same CI was utilized once again. The CI,
in the presence of Officer Kapusniak, dialed the phone number
previously given, and had a drug[-]related conversation with a
male voice in reference to purchasing crack cocaine. Once again,
the CI was given a designated location to meet, and Officer
Kapusniak set up surveillance. There, Officer Kapusniak observed
the CI approach [Jackson]. After a brief conversation, the CI
handed [Jackson] the prerecorded buy money in exchange for
small items, which [Jackson] removed from the front of his pants.
The CI returned back to [the police] and turned over two green[-
]tinted packets each containing an off-white chunky substance,
allege[dly] crack cocaine. A fourth controlled buy occurred on
March 30, 2016 using a different CI. Similarly, in exchange for
prerecorded buy money, the CI received two green tinted packets.
On that day, and each of the aforementioned days, Officer
Kapusniak performed a [Narcotics Field Drug Test Kit] on the
substance, which tested positive for cocaine base.
On April 1, 2016, Officer Kapusniak and members of his squad
executed [a] search warrant at a home on Kemball Street. Officer
Burada arrested [Jackson], who was sleeping in the bedroom. In
that bedroom, officers recovered a cell phone, which rang when
the number the CI had provided to Officer Kapusniak was dialed,
a scale, and three baggies, which contained blue, yellow[,] and
green tinted packets, all new [and] unused.[]
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Following his arrest, [Jackson] was charged with the
aforementioned crimes. After an on-the-record colloquy,
[Jackson] proceeded to a non-jury trial. After testimony from
Officer Kapusniak and [Jackson],[] the trial court found [Jackson]
guilty on all counts charged. That same day, [Jackson] was
sentenced to three years’ probation. No post-sentence motions
were filed.
Commonwealth v. Jackson, 84 EDA 2017, at 1-4 (Pa. Super. filed
10/31/2018) (citations and internal quotation marks omitted).
After filing a timely notice of appeal, trial counsel sought and was
granted leave to withdraw as counsel. Appellate counsel was appointed and
later filed an Anders1 brief and a petition to withdraw. After review, we agreed
there were no non-frivolous issues preserved for appeal, and affirmed
Jackson’s judgment of sentence. See Commonwealth v. Jackson, 84 EDA
2017 (Pa. Super. filed 10/31/2018) (unpublished memorandum). While his
direct appeal was pending in this Court, Jackson’s probation was revoked and
he was re-sentenced to three additional years of probation. Jackson did not
file a petition for allowance of appeal with the Pennsylvania Supreme Court.
On January 4, 2019, Jackson filed a pro se PCRA petition arguing his
constitutional rights were violated because he was not given the right to face
his accuser, specifically the CI.2 Counsel was appointed and filed an amended
petition, raising multiple claims of ineffective assistance of trial counsel. In
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1 Anders v. California, 386 U.S. 738 (1967).
2 On February 15, 2019, Jackson’s probation was again revoked and he was
re-sentenced to an additional three years of probation.
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response, the Commonwealth filed a motion to dismiss, arguing that Jackson’s
claims lacked merit.
The PCRA court subsequently issued notice of its intent to dismiss the
petition without a hearing pursuant to Pa.R.Crim.P. 907. After receiving no
response from Jackson, the PCRA court issued an order dismissing the
petition. This appeal followed.
On appeal, Jackson presents two questions for our review:
1. Whether the [c]ourt erred in denying [Jackson]’s PCRA petition
without an evidentiary hearing on the issues raised in the
amended PCRA petition.
2. Whether the court erred in not granting relief on the PCRA
petition alleging trial counsel was ineffective.
Appellant’s Brief, at 8.
“The standard of review for an order denying post-conviction relief is
limited to whether the record supports the PCRA court’s determination, and
whether that decision is free of legal error. The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified record”
Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation
omitted).
Generally, “[t]he PCRA court may dismiss a petition without a hearing
when the court is satisfied that there are no genuine issues concerning any
material fact, the defendant is not entitled to post conviction collateral relief,
and no legitimate purpose would be served by any further proceedings.”
Commonwealth v. Johnson, 139 A.3d 1257, 1273 (Pa. 2016) (citation and
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internal quotation mark omitted). When the PCRA court denies a petition
without an evidentiary hearing, we “examine each issue raised in the PCRA
petition in light of the record certified before it in order to determine if the
PCRA court erred in its determination that there were no genuine issues of
material fact in controversy and in denying relief without conducting an
evidentiary hearing.” Commonwealth v. Khalifah, 852 A.2d 1238, 1240
(Pa. Super. 2004) (citation omitted).
In his amended PCRA petition, Jackson alleged that trial counsel was
ineffective for failing to (1) file a motion to suppress evidence found during
Jackson’s arrest, (2) file a motion to reveal the identity of the CI, (3) file a
motion that the verdict was against the weight of the evidence, and (4) call
alibi witnesses to testify. His amended petition included a memorandum of
law in support of his petition. See Amended PCRA Petition, 8/12/2019, at 5-
21. Further, Jackson attached a letter from himself, and three affidavits from
his mother, sister, and girlfriend, all of whom he claims are alibi witnesses.
See id. at Appendix A.
All four of Jackson’s claims raised allegations of ineffectiveness of
counsel. As such, he was required to plead and prove:
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 … Appellant must demonstrate: (1) the underlying claim is
of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
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Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)
(citations omitted).
Moreover, “[w]e presume counsel is effective and place upon Appellant
the burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d
1262, 1267-1268 (Pa. Super. 2008) (citation omitted). This Court will grant
relief only if an appellant satisfies each of the three prongs necessary to prove
counsel ineffective. See Commonwealth v. Natividad, 938 A.2d 310, 321-
22 (Pa. 2007) (citation omitted). Thus, we may deny any ineffectiveness claim
if “the petitioner's evidence fails to meet a single one of these prongs.” Id. at
321 (citation omitted).
To avoid such a result, counsel must set forth an offer to prove at
an appropriate hearing sufficient facts upon which a reviewing
court can conclude that trial counsel may have, in fact, been
ineffective. However, [t]he controlling factor in determining
whether a petition may be dismissed without a hearing is the
status of the substantive assertions in the petition.
Commonwealth v. Stanley, 632 A.2d 871, 872 (Pa. 1993) (internal citations
and quotation marks omitted). Jackson was required to set forth an offer of
facts supporting his claims in his petition, as an evidentiary hearing “is not
meant to function as a fishing expedition for any possible evidence that may
support some speculative claim of ineffectiveness.” Commonwealth v.
Jones, 811 A.2d 994, 1003 n. 8 (Pa. 2002) (citation omitted).
The first claim in Jackson’s petition was that trial counsel was ineffective
for failing to file a motion to suppress evidence found during Jackson’s arrest.
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He asserts that no warrant was presented at trial and argues that no warrant
existed. In the alternative, he asserts that even if there was a warrant, the
entry into the house was illegal. Specifically, he claims “the police never
knocked to announce their presence, nor did they furnish a warrant upon
entry; instead they simply kicked the door in.” Amended PCRA Petition, at 13.
Jackson’s entire argument in this regard is that if trial counsel had filed
a motion to suppress, “the suppression hearing would have provided an
opportunity to delve deeper into the specific actions taken by police during the
arrest.” Id. at 14. He further claims that if he had been successful at the
suppression hearing, the case would have been dismissed altogether. Id.
We agree with the Commonwealth that Jackson failed to establish that
he suffered prejudice from counsel’s failure to file the suppression motion.
Even if we assume that the evidence seized at Jackson’s home would have
been suppressed, Jackson wholly failed to allege or argue how this suppression
would have affected the verdict. As the Commonwealth notes, the suppression
of the physical evidence seized at Jackson’s home would not have affected
any of the testimony or evidence of the four separate drug sales observed by
officers. Jackson’s failure to address how the suppression of the fruits of the
search would have changed the verdict is fatal to his claim on appeal. The
PCRA court did not err in dismissing Jackson’s first claim of trial counsel
ineffectiveness without a hearing.
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The second claim of trial counsel ineffectiveness in Jackson’s amended
petition was that trial counsel was ineffective for failing to file a motion to
disclose the identity of the CI. Specifically, Jackson argues that if trial counsel
had filed a motion to reveal the CI, it would have been granted, and the CI
would have been present at trial to testify regarding the evidence against
Jackson. He claims the CI’s testimony would have changed the outcome of the
trial.
Jackson was not automatically entitled to the identity of the CI:
The Commonwealth enjoys a qualified privilege to withhold the
identity of a confidential source. In order to overcome this
qualified privilege and obtain disclosure of a [CI]’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. 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.
In striking the proper balance, the court must consider the
following principles:
A further limitation on the applicability of the privilege arises
from the fundamental requirements of fairness. Where the
disclosure of an informer's identity, or of the contents of his
communication, is relevant and helpful to the defense of an
accused, or is essential to a fair determination of a cause,
the privilege must give way. In these situations[,] the trial
court may require disclosure and, if the Government
withholds the information, dismiss the action.
[N]o fixed rule with respect to disclosure is justifiable. The
problem is one that calls for balancing the public interest in
protecting the flow of information against the individual's
right to prepare his defense. Whether a proper balance
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renders nondisclosure erroneous must depend on the
particular circumstances of each case, taking into
consideration the crime charged, the possible defenses, the
possible significance of the informer's testimony, and other
relevant factors.
Commonwealth v. Watson, 69 A.3d 605, 607-608 (Pa. Super. 2013)
(citations omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the PCRA court we conclude
that Jackson’s claim of trial counsel ineffectiveness based on the identity of
the CI is without merit. The PCRA court opinion properly addresses Jackson’s
claim, and we adopt it as our own. See PCRA Court Opinion, 7/22/2020, at 7-
10 (concluding Jackson failed to present any evidence, or even a reasonable
probability, that the CI could have provided specific, exculpatory testimony
helpful to Jackson’s case; concluding Jackson’s argument that the CI was the
only disinterested witness to the transactions does not tip the balance in his
favor because this one factor is not determinative of whether a CI’s identity
should be revealed; stating the court would not have rendered a different
verdict even if a motion to ascertain the CI’s identity had been filed and
granted because there was sufficient evidence presented, including that
officers involved in the drug investigation observed Jackson engaged in
multiple drug transactions and evidence was recovered, including a cell phone
and drug paraphernalia connection Jackson to the crimes charged).
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We agree that Jackson’s allegations in his petition provided no basis for
the PCRA court to conclude that the CI’s identity would help Jackson in his
defense. Jackson’s apparent defense was that he was misidentified. However,
Jackson’s guilt was not simply based on the CI’s identification of him, nor was
it based on a single officer’s identification of a single controlled buy. Rather,
the police here conducted several carefully controlled buys where they
searched the CI immediately prior to each and had the CI under observation
the entire time. Further, multiple police officers, including Officer Kapusniak,
who testified at trial, directly observed the actual transfer of drugs from
Jackson to the CI during every interaction. After each encounter, the CI
proceeded directly back to the police and handed over drugs. Jackson failed
to allege how questioning the CI would have bolstered Jackson’s defense of
misidentification. Given these circumstances, the PCRA court did not err in
denying relief based on Jackson’s second claim of trial counsel ineffectiveness
without a hearing.
Next, Jackson argues trial counsel was ineffective for failing to file a
post-sentence motion challenging the weight of the evidence, and
consequently waiving the claim for appellate review.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the PCRA court we conclude
that Jackson’s third claim of trial counsel ineffectiveness is without merit. The
PCRA court opinion properly addresses Jackson’s claim, and we adopt it as our
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own. See PCRA Court Opinion, 7/22/2020, at 10-12 (finding the court did not
err in denying relief on this claim because even if a motion preserving the
weight claim had been filed, the court would have denied it and not granted a
new trial; finding the guilty verdicts do not shock the conscience because the
court credited the evidence presented that Jackson engaged in several drug
transactions and police recovered evidence connecting Jackson to the illegal
drug activity, and found Jackson’s self-serving testimony lacked credibility).
Accordingly, the PCRA court did not err in denying relief on Jackson’s
third claim of trial counsel ineffectiveness without a hearing.
In the fourth and final issue raised in his amended petition, Jackson
claims trial counsel was ineffective for failing to call certain alibi witnesses at
trial. Specifically, Jackson claims trial counsel should have called his mother,
his sister, and his girlfriend.
When a defendant claims counsel was ineffective based upon trial
counsel's failure to call a witness, he is entitled to relief only if he proves all
of the following: (a) the witnesses existed, (b) the witnesses were available,
(c) counsel was informed of or should have known of the witnesses, (d) the
witnesses were willing to cooperate and testify for the defendant at trial, and
(e) how the absence of the witnesses' testimony prejudiced the defendant, in
that it denied him a fair trial. Commonwealth v. Miller, 868 A.2d 578, 581–
582 (Pa. Super. 2005).
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After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the PCRA court we conclude
that Jackson’s final claim of trial counsel ineffectiveness is without merit. The
PCRA court opinion properly addresses Jackson’s claim, and we adopt it as our
own. See PCRA Court Opinion, 7/22/2020, at 12-15 (first, concluding Jackson
failed to present sufficient facts and information in the affidavits attached to
his amended petition, as two of them simply stated Jackson was not in the
city when the crimes were committed and did not identify what city he was
not in, where he actually was, or set forth specific dates or times; finding the
third affidavit lacked specific detail, as it simply stated Jackson was in Reading,
Pennsylvania but contained no other details establishing an alibi, and
additionally contradicted Jackson’s trial testimony in which he stated he was
in Scranton, Pennsylvania on one of the dates in question; second, concluding
the court would not have rendered a different verdict even if the alibi
witnesses had testified because the Commonwealth’s testimony proved
beyond a reasonable doubt that Jackson was the person who engaged in the
transactions with the CI; third, concluding any potential helpful testimony
from the alibi witnesses would have been compromised due to their close
relationship with Jackson which would affect a finding of credibility; and finally
concluding trial counsel was not ineffective for failing to call the three alibi
witnesses because any testimony from them would have merely been
cumulative of Jackson’s trial testimony).
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Accordingly, the PCRA court did not err in dismissing Jackson’s final
claim of trial counsel ineffectiveness without a hearing.
As none of the claims in Jackson’s amended petition alleged sufficient
facts to justify a hearing, the PCRA court did not err in dismissing the petition
without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2021
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Circulated 06/22/2021 11:53 AM
0083_Opinion