Com. v. Leonard, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMES LEONARD
Appellant No. 1350 WDA 2016
Appeal from the PCRA Order August 23, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0002957-2012
BEFORE: STABILE, SOLANO, and FITZGERALD, * JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 2, 2017
Appellant, James Leonard, appeals pro se from the August 23, 2016
order of the Court of Common Pleas of Allegheny County (“PCRA court”)
dismissing Appellant’s petition under the Post-Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
A panel of this court previously summarized the procedural and factual
history of the matter as follows.
On November 1, 2011, Officers Burgunder, Churilla, and
Ficorilli of the Pittsburgh Bureau of Police were contacted by a
confidential informant who notified them that a black male
known as James Leonard was selling Percocet and heroin from
his residence at 3454 Ligonier Street in Pittsburgh, Pennsylvania.
The police officers were familiar with that residence, having
previously conducted drug-related arrests of two individuals
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*
Former Justice specially assigned to the Superior Court.
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departing from that location. The officers conducted surveillance
of the residence and observed a lot of foot traffic in and out of
the residence, with various people briefly entering and then
leaving, in a pattern consistent with street level drug sales.
Soon thereafter, Appellant left the residence in a silver Dodge
Stratus. Officers Ficorilli and Burgunder followed Appellant and
observed him quickly change lanes three times without using a
turn signal. The police officers activated their lights and sirens
and stopped Appellant’s vehicle. When Officer Burgunder
approached the passenger side of the vehicle, he observed a
clear plastic bag containing a large quantity of white, oval
shaped pills in the center console, which Appellant informed him
were Percocet. Appellant stated that he did not have a
prescription for the drugs, but he took them for pain
management. Subsequent testing revealed the pills were
Vicodin and not Percocet.
Appellant was arrested and the officers secured a search
warrant for Appellant’s residence in which they retrieved
marijuana, heroin, over $12,000 in United States currency, a
semi-automatic weapon, and drug paraphernalia. Appellant was
charged with [possession with intent to deliver a controlled
substance, possession of a controlled substance, possession of
drug paraphernalia, driving while his operating privileges were
suspended, and failure to use a turn signal].
On May 16, 2013, Appellant filed a suppression motion.
The trial court convened a hearing on August 1, 2013, at the
conclusion of which the trial court entered an order denying
Appellant’s suppression motion. Following a stipulated [non-
]jury trial on September 24, 2013, the trial court rendered its
guilty verdicts.
On January 31, 2014, the trial court conducted a
sentencing hearing and sentenced Appellant to five (5) to ten
(10) years of imprisonment.
Commonwealth v. Leonard, 342 WDA 2014, unpublished memorandum at
1-3 (Pa. Super. filed November 14, 2014) (footnote omitted). A panel of
this Court affirmed Appellant’s judgment of sentence on November 14, 2014,
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and our Supreme Court denied Appellant’s allocatur petition on March 27,
2015.
Appellant filed a timely pro se PCRA petition on March 29, 2016. On
April 13, 2016, the PCRA court appointed Scott Coffey, Esquire, as
Appellant’s PCRA counsel. On June 23, 2016, PCRA counsel filed a
Turner/Finley1 “no merit” letter and an application to withdraw. On July 5,
2016, the PCRA court granted counsel’s application to withdraw and
provided Appellant with notice, pursuant to PA.R.Crim.P. 907, that it
intended to dismiss Appellant’s PCRA petition without a hearing. Appellant
filed a pro se response on July 26, 2016, and the PCRA court dismissed
Appellant’s PCRA petition on August 23, 2016.
Appellant, pro se, filed a timely appeal on September 12, 2016. The
following day the PCRA court directed Appellant to file a concise statement of
errors complained of on appeal. Appellant complied on October 5, 2016 and
the PCRA court issued a Pa.R.A.P. 1925(a) opinion on January 19, 2017.
Appellant raises four issues on appeal, which we quote verbatim.
[I.] After reviewing all relevant pleadings/proceedings
pertaining to this case, does the PCRA court err in the
wholesale adoption, and acceptance, of the Turner/Finley
letter, and in subsequently permitting PCRA counsel to
withdraw?
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1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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[II.] After reviewing all relevant pleadings/proceedings
pertaining to this case, does the PCRA court err by not
granting Appellant the opportunity to amend the original,
bare-bones, pro se PCRA petition?
[III.] After review of the facts in the Motion for Change of
Counsel, the Response to Notice of Intent to
Dismiss/Motion to file Amended PCRA Petition, and the
Turner/Finley letter, does the PCRA court err in
presumably ruling that PCRA counsel was effective?
[IV.] Does the PCRA court err in summarily dismissing
Appellant’s PCRA petition without an evidentiary hearing,
and in declaring all arguments and issues meritless and/or
frivolous?
Appellant’s Brief at 4 (sic).
Appellant’s first issue is challenging the PCRA court’s independent
review of the record and dismissal of his PCRA petition. “In PCRA
proceedings, this Court’s scope of review is limited by the PCRA’s
parameters. Since most PCRA appeals involve mixed questions of fact and
law, the standard of review we apply is whether the PCRA court’s findings
are supported by the record and free of legal error.” Commonwealth v.
Brown, 161 A.3d 960, 964 (Pa. Super. 2017) (citing Commonwealth v.
Pitts, 981 A.2d 875, 878 (Pa. 2009)).
The Turner/Finley decisions provide the manner for post-
conviction counsel to withdraw from representation. The
holdings of those cases mandate an independent review of the
record by competent counsel before a PCRA court or appellate
court can authorize an attorney’s withdrawal. The necessary
independent review requires counsel to file a “no-merit” letter
detailing the nature and extent of his review and list each issue
the petitioner wishes to have examined, explaining why those
issues are meritless. The PCRA court, or an appellate court if the
no-merit letter is filed before it, see Turner, [544 A.2d at 927],
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then must conduct its own independent evaluation of the record
and agree with counsel that the petition is without merit.
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012) (citing
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009)).
Counsel identified seven meritless allegations of ineffective assistance
of counsel in his Turner/Finley letter upon which Appellant wished to
proceed. See Turner/Finley Letter, 6/23/16, at 4-9. “It is well established
that counsel is presumed effective, and a [PCRA] petitioner bears the burden
of proving ineffectiveness.” Commonwealth v. Reyes-Rodriguez, 111
A.3d 775, 779-80 (Pa. Super. 2015) (en banc) (quoting Commonwealth v.
Ligons, 971 A.2d 1125, 1137 (Pa. 2009) (alteration in original) (additional
citations omitted)). “To prevail on an [ineffective assistance of counsel]
claim, a PCRA petitioner must plead and prove by a preponderance of the
evidence that (1) the underlying claim has arguable merit; (2) counsel had
no reasonable basis for acting or failing to act; and (3) the petitioner
suffered resulting prejudice. Id. at 780 (citations omitted). If the petitioner
fails to meet any of the Pierce2 prongs, the claim fails. Id.
Counsel’s first meritless issue is whether trial counsel failed to raise a
claim regarding the time the search warrant was signed and served.
Appellant cites the police criminal complaint, which states that the search
warrant was signed at 9:40 p.m. on November 1, 2011, and executed at
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2
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
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9:55 p.m. the same date; however, on the face of the warrant it appears to
have been signed at 10:00 p.m. “Pennsylvania Courts have long held that a
technical defect in a warrant, such as the mis-dating at issue here, does not
render a warrant invalid in the absence of a showing of prejudice.”
Commonwealth v. Benson, 10 A.3d 1268, 1274 (Pa. Super. 2010) (citing
Commonwealth v. Hamlin, 469 A.2d 137, 140 (Pa. 1983)). In the matter
sub judice, the time period in question was twenty minutes. Thus, Appellant
would be unable to establish prejudice and the claim is meritless.
Counsel identifies a second meritless claim as to the untested nature
of the confidential informant. Appellant’s brief is bereft of discussion on this
issue, as he focuses solely on the tense of the word “currently” and the fact
that the challenge to the informant had previously been litigated. While
Appellant is correct that PCRA counsel failed to acknowledge this issue was
previously litigated, this on its own does not establish a claim upon which
relief can be granted. Moreover, it renders the underlying claim waived.
See 42 Pa.C.S.A. § 9544. Relatedly, Appellant asserts that trial counsel was
ineffective for failing to challenge the timing of when the confidential
informant obtained the information that led to the search warrant. PCRA
counsel noted this as issue four and concluded that this issue lacked merit
because it did not render the warrant defective for lack of probable cause.
See Turner/Finley, Letter, 6/23/16, at 8.
[A] determination of probable cause based upon information
received from a confidential informant depends upon the
informant’s reliability and basis of knowledge viewed in a
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common sense, non-technical manner. Commonwealth v.
Luv, 557 Pa. 570, 735 A.2d 87, 90 (1999). Thus, an informant’s
tip may constitute probable cause where police independently
corroborate the tip, or where the informant has provided
accurate information of criminal activity in the past, or where
the informant himself participated in the activity. Id.Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011) (emphasis in
original). In the matter sub judice, the police corroborated the information
via surveillance that occurred on the same date they received the
information from the confidential informant and obtained the warrant. Thus,
Appellant’s claims is meritless and would not satisfy the first Pierce prong.
Counsel’s third and seventh identified claims involve an alleged
inconsistency with the criminal complaint and the testimony at the
suppression hearing regarding a bag of pills in the center console. Appellant
asserts that the pills were not in plain view and requests an expert to
establish that it was impossible to see them. During the suppression hearing
the following exchange occurred during cross-examination of Officer Brian
Burgunder.
Q. You say you found a plastic bag containing oval pills in the
console of Mr. Leonard’s vehicle.
A. Yes.
Q. Did this console have a lid to it?
A. It did. What I refer to as the entire center console. The gear
shifter was in the middle.
Q. Could someone have put the lid on top of the console, thus
concealing anything in it?
A. Not where the pills were.
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Q. They were in a clear plastic bag; right?
A. Yes.
N.T. Suppression Hearing, C, at 20. Upon review of the testimony, this
claim is meritless as the lid Appellant was describing did not obscure the
visibility of the pills. Thus, the claim lacks merit and fails to meet the first
Pierce prong. Appellant’s claim fails.
The final meritless claims of ineffective assistance of counsel identified
by PCRA counsel involves failing to call as witnesses a second police officer
who was present at the traffic stop and James White, an individual who was
present at Appellant’s house during the period the police were conducting
surveillance of his residence.
When raising a claim of ineffectiveness for the failure to
call a potential witness, a petitioner satisfies the performance
and prejudice requirements of the Strickland[3] test by
establishing that: (1) the witness existed; (2) the witness was
available to testify for the defense; (3) counsel knew of, or
should have known of, the existence of the witness; (4) the
witness was willing to testify for the defense; and (5) the
absence of the testimony of the witness was so prejudicial as to
have denied the defendant a fair trial.
Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations
omitted). Appellant’s brief is bereft of discussion of the second police officer,
thus this claim fails. While Appellant’s brief discusses James White, his
contention is that PCRA counsel failed to contact him regarding James White,
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3
Strickland v. Washington, 468 U.S. 668 (1984).
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not that trial counsel was ineffective for failing to call James White. There is
nothing to establish that the absence of the testimony of James White would
have been so prejudicial as to deny Appellant a fair trial. During the
suppression hearing Officer Churilla testified regarding a number of people
going in and out of the residence, not just the one person that James White
would have testified to. See N.T. Suppression Hearing, 8/1/13, at 25.
Thus, while the testimony would have contradicted the testimony of Officer
Churilla, it would not have caused substantial prejudice as there was ample
evidence to establish probable cause for the search warrant. See generally
N.T. Suppression Hearing, 8/1/13. Thus, Appellant’s claim fails.
Next, Appellant alleges the PCRA court erred when it denied his motion
to amend his PCRA petition. The PCRA court “may grant leave to amend or
withdraw a petition for post-conviction collateral relief at any time.
Amendment shall be freely allowed to achieve substantial justice.”
Pa.R.Crim.P. 905(A). While Rule 905 provides for liberal amendment, when
such amendment is frivolous or meritless, such amendment would be
unnecessary. See Pa.R.Crim.P. 907(1). As discussed above, permitting
such amendment was unnecessary as the PCRA court conducted an
independent review of the record4 and there were no issues of merit; thus,
the PCRA court properly denied his motion to amend.
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4
As noted above, this Court previously reviewed this independent review
and determined that the claims were indeed meritless.
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Appellant’s third claim is that PCRA counsel was ineffective for filing a
Turner/Finley letter rather than an amended PCRA petition. As discussed
above, Appellant’s underlying claims lack merit; thus, his ineffectiveness
claim against PCRA counsel is frivolous. Additionally, counsel’s
Turner/Finley letter satisfies the requirements of Turner and Finley, as
explained above. Thus, Appellant’s claim fails.
Appellant’s final argument is that the PCRA court erred when it denied
his petition without a hearing.
Pursuant to [Pa.R.Crim.P. 907], a PCRA court has discretion to
dismiss a PCRA petition without a hearing if the court is satisfied
that there are no genuine issues concerning any material fact;
that the defendant is not entitled to post-conviction collateral
relief; and that no legitimate purpose would be served by further
proceedings.
Brown, 161 A.3d at 964 (quoting Commonwealth v. Burton, 158 A.3d
618, 622 (Pa. 2017)). As discussed above, Appellant’s claims lacked merit;
thus, there was no legitimate purpose to be served by the PCRA court
holding a hearing. Appellant’s claim fails.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2017
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