Com. v. James, A.

J-S02030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ABDUL MUSSAWIR JAMES
Appellant No. 231 EDA 2015
Appeal from the PCRA Order September 2, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000995-2008
BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 08, 2016
Abdul Mussawir James appeals, nunc pro tunc, from the order of the
Court of Common Pleas of Philadelphia County that dismissed his petition
filed pursuant to the Post-Conviction Relief Act (PCRA).1 Counsel for James
had filed with this Court a Turner/Finley letter and an application to
withdraw as counsel.2 After our review, we affirm the PCRA court’s order
and grant counsel’s petition to withdraw.
This Court previously set forth the underlying facts of the case as
follows:
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1
42 Pa.C.S. §§ 9541-9546.
2
See Commonwealth v. Turner, 544 A.2d 917 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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James was arrested and charged with [possession of a controlled
substance and possession with intent to deliver a controlled
substance (“PWID”)] based on police observation of a single sale
of Oxycodone by James to an unidentified white male. On April
28, 2008, James filed a motion to suppress the physical
evidence, arguing that he was stopped without reasonable
suspicion that criminal activity was afoot and was arrested
without probable cause that a crime was committed. A hearing
was held on the motion on August 11, 2008. Agent John
Brennan (“Agent Brennan”) testified as a narcotics expert
regarding his observations of what he believed to be a drug
transaction between James and the unidentified white male. He
stated that he was conducting surveillance in the 900 block of
North 65th Street based on numerous complaints of drug activity
in the area. He observed the unidentified white male walk up
and down the street “looking around constantly,” and then sit
down on the steps in front of 925 North 65th Street.
Agent Brennan then saw James leave a conversation with two
individuals at the 6400 block of Jefferson Street, walk directly
over to the unidentified white male, pull out an amber colored
pill bottle, pour some of its contents into the male’s hand, and
place the pill bottle back in his pocket. The male then gave
James something that James also put into his pocket, although
Agent Brennan testified he could not see what was given to
James. Agent Brennan stated that based on his expertise and
experience, he believed a drug transaction had just occurred and
radioed backup officers with a description of James. Police
stopped James, went into his pant pockets, and removed $16.00
and the amber pill bottle, which was found to contain 13
Oxycodone pills.
The trial court indicated that it found Agent Brennan’s testimony
to be credible, and based on his testimony, denied the
suppression motion. A bench trial immediately followed, wherein
Agent Brennan’s prior testimony was incorporated into the
record. He was briefly recalled to testify, at which time he
indicated that the pill bottle bore James’ name and indicated that
the prescription had been filled on the day of this incident, June
4, 2007.
James testified that he had a prescription for Oxycodone because
he had recently been hit by a car and was experiencing back and
arm pain. He stated that the unidentified white male was his
neighbor, Joey, and that he merely said hello to Joey as James
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exited the building. He denied selling or providing Joey with any
drugs. He testified that he was on the corner talking to friends
when a police officer “attacked” him and he was arrested.
James alleged that the police officer told him that unless he
could provide them with a “big fish,” James would be charged
with selling drugs.
The trial court indicated that it found James’ version of events to
be incredible. He was convicted of possession of a controlled
substance and PWID.
Commonwealth v. James, 46 A.3d 776, 777-78 (Pa. Super. 2012)
(citations omitted).
On October 10, 2008, James was sentenced to two concurrent terms
of 3 to 6 years’ incarceration. Following a timely direct appeal to this Court,
the matter was remanded to the trial court, which on November 1, 2010,
vacated the sentence imposed for possession because it merged with the 3-6
year sentence for PWID.
On June 5, 2012, this Court, en banc, affirmed James’ judgment of
sentence.
On August 14, 2012, James filed a pro se PCRA petition, and the court
appointed Michael Doyle, Esquire to represent him. Attorney Doyle filed a
Turner/Finley letter, and the court issued an order pursuant to
Pa.R.Crim.P. 907, advising James that the court intended to dismiss his
petition without a hearing. On September 2, 2014, the court dismissed the
PCRA petition and granted counsel’s request to withdraw.
James did not file a timely appeal of the court’s September 2, 2014
order. However, on December 15, 2014, upon review of pro se
correspondence from James asserting problems with the service of the Rule
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907 notice, the court reinstated his PCRA appellate rights and appointed new
counsel, Irina G. Ehrlich, Esquire to represent James. On January 8, 2015,
James filed a notice of appeal nunc pro tunc.
First, we determine whether PCRA counsel has complied with the
technical requirements of Turner/Finley:
Counsel petitioning to withdraw from PCRA representation must
proceed under [Turner/Finley and] . . . must review the case
zealously. Turner/Finley counsel must then submit a “no-
merit” letter to the trial court, or brief on appeal to this Court,
detailing the nature and extent of counsel’s diligent review of the
case, listing the issues which petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw. Counsel must also send to the
petitioner: (1) a copy of the “no merit” letter/brief; (2) a copy
of counsel’s petition to withdraw; and (3) a statement advising
petitioner of the right to proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that 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.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations
omitted). If counsel’s petition and no-merit letter satisfy Turner/Finley, we
then conduct an independent review of the merits of the case. If this Court
agrees with counsel that the claims are meritless, we will permit counsel to
withdraw and deny relief. Commonwealth v. Wrecks, 931 A.2d 717, 721
(Pa. Super. 2007) (citing Commonwealth v. Mosteller, 633 A.2d 615, 617
(Pa. Super. 1993)).
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Here, James’ counsel has complied with the technical requirements of
Turner/Finley. She forwarded to James a copy of the brief and the petition
to withdraw along with a letter informing him of his right to hire private
counsel or proceed pro se. In the brief, counsel sets forth the claims that
James sought to raise before this Court. Counsel presents the background
of the case, and an explanation as to why the record does not support the
claims raised by James in his PCRA petition. Accordingly, we proceed with
the merits of the appeal.
On appeal, James raises three issues for our review:
1. Did the trial court err by holding that James’ claim of trial
counsel ineffectiveness for failing to properly present evidence
of a valid prescription did not entitle him to relief?
2. Did the PCRA court err by holding that James’ claim that his
trial counsel was ineffective for failing to investigate or call a
defense witness named Joey did not entitle him to relief?
3. Did the PCRA court err by not holding an evidentiary hearing?
Our standard of review regarding a PCRA court’s order is whether the
determination of the PCRA court is supported by evidence of record and is
free from legal error. The PCRA court’s findings will not be disturbed unless
there is no support for those findings in the certified record.
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citing
Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010).
To be eligible for relief under the PCRA, James must prove by a
preponderance of the evidence that his conviction resulted from “ineffective
assistance of counsel which, in the circumstances of the particular case so
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undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
“Counsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d
1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the
defendant must show that the underlying claim had arguable merit, counsel
had no reasonable basis for his or her action, and counsel’s action resulted
in prejudice to the defendant. Commonwealth v. Pierce, 527 A.2d 973,
975-77 (Pa. 1987).
At trial, police officers testified that they found James in possession of
an amber pill bottle with a CVS pharmacy label indicating James’ name and
information about the contents. James asserts that trial counsel was
ineffective for failing to present evidence that he had a valid prescription for
Oxycodone at the time of his arrest. In James’ pro se PCRA petition he
stated:
[James] was denied the right to effective assistance of counsel
when trial counsel failed to procure evidence of [James’]
innocence, namely, that the “PILL-BOTTLE” that [James’]
prescription came in was labeled with the prescribing physician’s
information, and was in police custody under property receipt
2722780. In addition to the prescription information being on
the bottle, counsel would have been able to subpoena the
physician, [who] would have testified to the lawful[ness] of the
prescription.
PCRA Petition, 8/14/12, at 1-2.
Included in the record is the Turner/Finely letter submitted by the
first attorney appointed to represent James on his PCRA petition, Attorney
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Doyle. Attached as an exhibit to the Turner/Finley letter is a letter to CVS
Prescription Records in Woonsocket, Rhode Island seeking records for a
prescription for Oxycodone that was filled at a CVS for James. The request
included the following information from the pill bottle label: (1) James’
name; (2) the prescription number; and (3) the name of the prescriber of
the medication, Dr. Samuel Peacock. CVS informed counsel that James’
name did not match any of its records.
Attorney Doyle also sent a request to Dr. Peacock, who responded that
he did not know James and never knowingly wrote any prescriptions for him.
The diligent efforts of PCRA counsel to procure evidence supporting
James’ contention that he possessed the Oxycodone pursuant to a valid
prescription were fruitless. Under these circumstances, James has failed to
establish that he suffered prejudice from his trial counsel’s failure secure
evidence of a valid prescription. Accordingly, he is not entitled to relief on
this claim under the PCRA. See Pierce, supra.
James next asserts that trial counsel was ineffective for failing to
investigate or call as a witness James’ neighbor Joey. At trial, James
maintained that Joey was a neighbor he said hello to on the street, and not a
person to whom he sold drugs, as Agent Brennan testified.
To prevail on a claim that trial counsel rendered ineffective assistance
by failing to call a witness, the defendant must show that: (1) the witness
existed; (2) the witness was available; (3) counsel was informed of the
existence of the witness or should have known of the witness’ existence; (4)
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the witness was prepared to cooperate and would have testified on
defendant's behalf; and (5) that the absence of the witness’ testimony
prejudiced the defendant. Commonwealth v. Brown, 767 A.2d 576, 582
(Pa. Super. 2001). James has the burden of showing that trial counsel had
no reasonable basis for failing to call a particular witness. Commonwealth
v. Small, 980 A.2d 549, 560 (Pa. 2009).
Although James did not raise this issue in his PCRA petition, he
informed counsel that Joey would testify that he shook his hand and walked
away before the incident. PCRA counsel reviewed trial counsel’s file, which
included a request dated April 20, 2008 for an investigator to locate Joey at
923 North 65th St. and take a statement. This establishes that trial counsel
investigated the issue.
PCRA counsel later tried to obtain the witness’s last name from James,
but to no avail. Despite several attempts, PCRA counsel was unable to reach
James’ stepmother, who according to James, lived next door to Joey.
Accordingly, James is unable to prove that Joey exists and was willing to
cooperate. In light of these circumstances, James cannot establish that trial
counsel was ineffective for not calling Joey as a witness. Accordingly, James
is not entitled to PCRA relief. See Brown, supra.James next asserts that the PCRA court erred by dismissing his
petition without a hearing.
The PCRA court has the discretion to 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
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to post-conviction collateral relief, and no legitimate purpose
would be served by further proceedings.” Commonwealth v.
Paddy, 15 A.3d 431, 442 (Pa. 2011) (quoting Pa.R.Crim.P.
909(B)(2)). “To obtain reversal of a PCRA court's decision to
dismiss a petition without a hearing, an appellant must show
that he raised a genuine issue of fact which, if resolved in his
favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.” Id.(quoting Commonwealth v. D'Amato, 856 A.2d 806, 820 (Pa.
2004)).
Commonwealth v. Roney, 79 A.3d 595, 604-05 (Pa. 2013). In light of the
PCRA court’s conclusion that James’ claims lacked merit, it did not abuse its
discretion in denying the petition without a hearing.
Order affirmed.3
STABILE, J., Joins the majority.
SHOGAN, J., Concurs in the result.
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3
In its brief, the Commonwealth argues that the court’s order reinstating
James’ right to appeal was a legal nullity. The trial court sentenced James
to three to six years’ incarceration on October 10, 2008. However, it
reinstated James’ appellate rights on December 15, 2014. The
Commonwealth notes, “it cannot be inferred from the docket that he was
currently serving a sentence, since the maximum term of his sentence was
six years and the order reinstating his appeal rights was entered six years
and two months after sentencing date.” Appellee’s Brief, at 9.
Our review of the sentencing hearing transcript indicates that at the time
James committed the offenses, he was on probation. N.T. Sentencing
Hearing, 10/10/08, at 10-12. In light of his conviction in this case, it is
reasonable to assume that his probation was revoked, thus delaying the
commencement of his three to six year sentence. We also note that on July
20, 2015, counsel sent her Turner/Finley letter to James at SCI Forrest.
Under these circumstances, we decline the Commonwealth’s request that we
quash the appeal, and instead render this decision on the merits.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2016
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