Com. v. Watley, A.

J-S75028-16
2016 Pa. Super. 311
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDRE RAYMELLE WATLEY
Appellant No. 845 EDA 2016
Appeal from the PCRA Order January 27, 2016
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0001701-2009
BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.
OPINION BY MOULTON, J.: FILED DECEMBER 29, 2016
Andre Raymelle Watley appeals from the January 27, 2016 order of
the Court of Common Pleas of Northampton County dismissing, in part, his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
This Court previously summarized the factual background of this
matter as follows:
State police effectuated a traffic stop of [Watley] and
his passenger, Randy Hayward, after observing them
traveling at ninety-five miles per hour in a forty-five mile
per hour zone. The stop occurred at approximately 1:45
a.m. on February 14, 2009, on State Route 22 in
Northampton County, Pennsylvania. After pulling over the
vehicle, Trooper Michael Acevedo and Trooper Lucas
Lohrman approached. Trooper Lohrman walked to the
passenger's side of the car while Trooper Acevedo went to
the driver's side, where [Watley] was seated. When asked
why he was traveling at such a high rate of speed [Watley]
indicated that he was going to Easton Hospital. However,
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[Watley] had passed two exits leading to the hospital.
[Watley] turned over to police a Pennsylvania identification
card with the name “Chonce Acey.” Hayward informed
police that he was Jermaine Jones, and his birth date was
October 4, 1982, but he was unable to provide his social
security number.
The troopers ran the information and learned that
Jermaine Jones was an alias for Hayward, who had an
outstanding warrant for his arrest in New Jersey. Trooper
Lohrman removed [Watley] from the car and took the keys
to the vehicle before allowing [Watley] to re-enter it. The
troopers also asked Hayward to exit the vehicle. When
Hayward stepped from the vehicle, police noticed that the
floor mat was raised into a high bump and an object
appeared to be underneath it. While placing Hayward
under arrest, Trooper Acevedo lifted the floor mat and
discovered a loaded .22 caliber handgun. Trooper Acevedo
promptly alerted his partner, drew his own weapon, and
ordered [Watley] to step from the car and show his hands.
Rather than comply, [Watley] who was on his cellular
phone, fled the scene by running across the road and its
median before crossing the opposing lanes of travel and
into a wooded area. Trooper Acevedo gave chase for
approximately fifteen minutes, but was unable to locate
[Watley].
Before police ordered the towing of the vehicle,
Hayward requested a jacket that was in the backseat.
Police searched the coat for weapons before turning it over
to Hayward and discovered two receipts from Western
Union containing [Watley’s] name. Police also obtained a
search warrant for the car and discovered a .25 caliber
pistol, a .25 caliber magazine, a box of .22–caliber
ammunition, a container with a small amount of
marijuana, and thirty-four Ecstasy pills. These items were
located in the passenger side glove compartment.
Hayward provided police with a written statement, as
follows:
On the date of February 13th I was picked up
by “TEF” whose real name is Andre Watley
around 6'o[']clock in the evening he was
driving a [I]mpala (silver) which he told me
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was rented for him by a female friend by the
name of Erica[.] [W]e proceeded to drive thru
Allentown while he made his drops and
transactions[.] [A]round 10 or 11 I got
dropped off at Philly's sport[s] bar on Hamilton
for a few while he had to go get something. He
picked me up around 11:30 or 12 and told me
about a party going on in Easton at Larry
Holmes Ringside Bar and Grille so we headed
out that way about 1:15 or so before we made
it to Ringside we were pulled over on 22 East.
When the officers initially turned the lights
over he stated let's keep going we can outrun
them and I stated “no” because we were only
speeding and that's when Andre Watley told
me there's a slammer under the seat which
means “gun” and I said so it's not min[e] and
he said it isn't mine either by then the officers
were at my window asked for License reg.
insurance and ID[.] I didn't have mine and
gave them my alias Jermaine Jones which
came back as my real name Randy Hayward
[.] I was then taken into custody and the gun
was found under the seat and Andre took off
running.
Commonwealth's Exhibit 6, Hayward Statement.
Prior to [Watley's] trial, Hayward also pled guilty to
conspiracy related to the firearms possession and admitted
that he was in a vehicle driven by [Watley] that contained
two firearms and that he was not licensed to carry such
weapons. This information was presented to the jury.
When he testified at [Watley’s] trial, however, Hayward
denied knowing [Watley] or having been with [Watley] on
the morning of the stop. In addition, he denied any
knowledge of Ecstasy being in the car or that police
provided him with his Miranda rights, and he did not
remember writing the drops and transactions statement.
That statement, which was adopted by Hayward, was
introduced as substantive evidence.
Commonwealth v. Watley, 81 A.3d 108, 111–13 (Pa.Super. 2013)
(en banc) (footnote omitted).
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Following a jury trial, Watley was convicted of two counts of firearms
not to be carried without a license, one count of possession with intent to
deliver (“PWID”) ecstasy, one count of criminal conspiracy to commit PWID,
one count of possession of ecstasy, one count of possession of a small
amount of marijuana, one count of false identification to law enforcement,1
and two summary offenses. The court imposed consecutive sentences of
42-84 months on the firearms charges, 60-120 months on the PWID
charge,2 4-12 months on the false identification charge, and a consecutive
sentence of 15-30 days on the marijuana charge.
Subsequently, as the trial court explained:
[Watley] filed a direct appeal to the Superior Court on May
27, 2011, following the reinstatement of his appellate
rights nunc pro tunc. A panel of the Superior Court
reversed [Watley’s] PWID and conspiracy convictions. The
Commonwealth sought reargument, which was granted.
Thereafter, [Watley’s] sentence was affirmed by the
Superior Court. Commonwealth v. Watley, 81 A.3d 108
(Pa. Super. 2013). He filed a petition for allowance of
appeal to the Supreme Court, which was denied on July 8,
2014. On June 2, 2015, [Watley] filed a timely petition
pursuant to the Post-Conviction Relief Act (PCRA), 42
Pa.C.S, § 9541 et seq., which was assigned to the
Honorable Paula A. Roscioli as a result of Judge Smith’s
appointment to the Federal bench in 2014. A hearing on
the matter was held on October 9, 2015, and the record
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1
18 Pa.C.S. § 6106(a)(1); 35 P.S. § 780-113(a)(30); 18 Pa.C.S. §
903(a)(1); 35 P.S. § 780-113(a)(16); 35 P.S. § 780-113(a)(31); and 18
Pa.C.S. § 4914(a), respectively.
2
The court imposed a mandatory minimum sentence of five years’
incarceration on the PWID charge pursuant to 42 Pa.C.S. § 9712.1.
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left open for additional testimony. The parties then
reconvened on October 30, 2015, at which time counsel
for [Watley] made an oral discovery motion. That motion
was denied in a written opinion by the undersigned on
November 12, 2015.
Opinion, 1/27/16, at 1-2 (“PCRA Op.”).
On January 27, 2016, the PCRA court vacated Watley’s sentence and
ordered re-sentencing to be held on March 11, 2016.3 The PCRA court
explained that, pursuant to Alleyne v. United States, 133 S. Ct. 2151
(2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014),
Watley’s mandatory minimum sentence was unconstitutional. PCRA Op. at
7. The PCRA court further explained that Watley’s sentence had to be
vacated in its entirety because the entire sentencing scheme was impacted.
Id. The PCRA court denied Watley’s petition in all other aspects. Watley
filed a timely notice of appeal on February 19, 2016.4
Watley raises the following issues on appeal:
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3
The court’s order stated that re-sentencing was contingent upon lack
of a timely appeal in this matter. Order of Court, 1/27/16. We find that this
appeal is now properly before us. See Commonwealth v. Gaines, 127
A.3d 15, 17-18 (Pa.Super. 2015) (finding that an order granting in part and
denying in part all issues raised in Appellant’s PCRA petition was a final order
for purposes of appeal).
4
Watley originally filed a pro se notice of appeal on February 16,
2016. He then filed a counseled notice of appeal on February 19, 2016.
Watley’s pro se appeal, docketed with this Court at No. 835 EDA 2015, was
discontinued, and this Court sent notice of the discontinuance on April 5,
2016.
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A. Attorney Sletvold was ineffective for failing to object (or
failing to appeal, if the trial record is construed as the
Trial Court ruling that such statements were admissible)
to the admission of the prior statement and prior guilty
plea colloquy of Randy Hayward, given that such prior
statements were not inconsistent with Haywards trial
testimony.
B. Attorney Sletvold was ineffective for failing to file a
motion to suppress evidence found during an
unconstitutional search and seizure of the vehicle
stopped by the state police.
C. Attorney Sletvold was ineffective for failing to consult
with [Watley] prior to trial, failing to call alibi witnesses,
and failing to advise [Watley] that it was in his interest
to testify at trial.
D. The PCRA Court erred in failing to grant [Watley]'s
request that the identification card of Chonce Acey be
sent to the Pennsylvania State Police for fingerprint
analysis.
Watley’s Br. at 4-5 (suggested answers omitted).
Our standard of review from the denial of post-conviction relief “is
limited to examining whether the PCRA court’s determination is supported by
the evidence of record and whether it is free of legal error.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). This
Court “will not disturb findings that are supported by the record.” Id.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
We first address Watley’s claims for ineffective assistance of counsel.
When analyzing ineffectiveness claims, we begin with the presumption that
counsel was effective. Commonwealth v. Spotz, 18 A.3d 244, 259-60 (Pa.
2011). “[T]he defendant bears the burden of proving ineffectiveness.”
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Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009). To overcome
the presumption of effectiveness, a PCRA petitioner must demonstrate that:
“(1) the underlying substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis for his or
her actions or failure to act; and (3) the petitioner suffered prejudice as a
result of counsel’s deficient performance.” Id. “A claim of ineffectiveness
will be denied if the petitioner’s evidence fails to meet any of these prongs.”
Id. To establish the second ineffectiveness prong, the petitioner must prove
that “an alternative not chosen offered a potential for success substantially
greater than the course actually pursued.” Spotz, 18 A.3d at 260 (quoting
Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006)). To
establish the third prong, the petitioner “must show that there is a
reasonable probability that the outcome of the proceedings would have been
different but for counsel’s action or inaction.” Id.
A. Prior Inconsistent Statements
First, Watley claims that his trial counsel was ineffective for failing to
object to (or failing to appeal) the admission of Randy Hayward’s prior
statement to the police and prior guilty plea colloquy. The prosecution
called Hayward as a witness at trial. When Hayward testified that he did not
know Watley, the prosecutor first used both Hayward’s earlier, signed
statement to the police and his sworn guilty plea colloquy in an effort to
refresh Hayward’s recollection. See N.T., 7/13/10, at 126-41. When that
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effort proved largely unsuccessful, the prosecutor then used the statements
both to impeach Hayward and as substantive evidence of Watley’s guilt.
See id. at 183.5 Watley argues that his trial counsel should have objected
to the admission of those prior statements on the ground that they were not
inconsistent with his trial testimony and therefore inadmissible hearsay.
Watley’s Br. at 25.
“Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Commonwealth v. McCrae, 832 A.2d 1026, 1034 (Pa.
2003); see Pa.R.E. 801(c). Hearsay is not admissible “except as provided
by the Pennsylvania Rules of Evidence, [by other rules prescribed by the
Supreme Court of Pennsylvania], or by statute.” McCrae, 832 A.2d at
1034; see Pa.R.E. 802. “It is long settled that a prior inconsistent
statement may be used to impeach a witness.” Commonwealth v. Brown,
448 A.2d 1097, 1102 (Pa.Super. 1982) (quoting Commonwealth v.
Hensley, 441 A.2d 431, 435 (Pa.Super. 1982)). “Further, a prior
inconsistent statement may be offered not only to impeach a witness, but
also as substantive evidence if it meets additional requirements of
reliability.” Commonwealth v. Carmody, 799 A.2d 143, 148 (Pa.Super.
2002). “The test is a two-part inquiry: 1) whether the statement is given
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5
The transcript of Hayward’s guilty plea hearing was admitted into
evidence without objection on the second day of trial. N.T., 7/14/10, at 125.
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under reliable circumstances; and 2) whether the declarant is available for
cross-examination.” Id. “With respect to the second prong, cross-
examination, the inconsistent statement itself must be the subject of the
cross-examination in order to satisfy the test.” Id. at 148. At the time of
Watley’s trial, Pennsylvania Rule of Evidence 803.1 read as follows:
The following statements, as hereinafter defined, are not
excluded by the hearsay rule if the declarant testifies at
the trial or hearing and is subject to cross-examination
concerning the statement:
(1) Inconsistent Statement of Witness. A
statement by declarant that is inconsistent
with the declarant’s testimony and (a) was
given under oath subject to the penalty of
perjury at a trial, hearing, or other proceeding,
or in a deposition, or (b) is a writing signed
and adopted by the declarant, or (c) is a
verbatim contemporaneous recording of an
oral statement.6
In his brief, Watley contends:
As a matter of law, Hayward’s trial testimony, consisting of
“I don’t know” and “I don’t recall” in response to the
Commonwealth’s questions, was not inconsistent with his
February 20, 2009 statement to the police. As such,
neither the statement to the police nor his guilty plea
colloquy were admissible as substantive evidence.
____________________________________________
6
The text of Pa.R.E. 803.1 was amended in 2013, after Watley’s trial.
The amendment did not change the rule substantively. See Pa.R.E.
Explanatory Comments (noting that 2013 amendments to Pennsylvania
Rules of Evidence left substantive content unchanged).
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Watley’s Br. at 25 (emphasis in original). In support of this argument,
Watley relies chiefly on the following statement in Commonwealth v.
Knudsen, 278 A.2d 881, 883 (Pa. 1971):
[O]ur courts have been loathe to allow cross-examination
for purposes of impeachment by use of prior statements
when a witness states that he does not know or that he
cannot remember. This is so for the reason that such an
in-court declaration does not harm the calling party nor aid
the opposing party.
We disagree with Watley’s contention that Hayward’s trial testimony
was not inconsistent with his prior written statement and guilty plea
colloquy. There is an important distinction between a mere failure of
recollection, which might not be inconsistent with an earlier statement, see
Commonwealth v. Moore, 340 A.2d 447, 449 (Pa. 1975) (“[W]here the
witness has made no assertions which stand in contradiction to statements
the witness has made earlier, but merely claims he or she does not know or
cannot remember, the prior statements should not be introduced.”), and a
claimed failure of recollection accompanied by affirmative assertions
inconsistent with the earlier statement. While at times during his trial
testimony, Hayward professed a failure of recollection, see, e.g., N.T.,
7/13/10, at 126, 134, at other times his recollection was quite strong. Most
significantly, he repeatedly asserted both that he did not know Watley and
that Watley was not in the car with him at the time of the stop. The
following passages from Hayward’s trial testimony are illustrative:
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Q. Exactly. He picked you up again around 11:30 or 12
and told you about a party going on in Easton at the Larry
Holmes Ringside.
So you headed that way about 1:15 or so. You’re
leaving Allentown about 1:15 with Watley in the car, with
Watley driving; right? Right? Yes? Correct?
A. I don’t know who Watley is.
Q. You don’t know who he is?
A. No.
Q. You’re writing all about him in the statement, but you’re
telling these people you don’t know who he is?
A. No, I don’t.
Q. You made it to the Ringside. You were headed to the
Ringside; right? Right? Because he told you about the
party’s there; is that right? Is that a yes?
A. You keep saying he told me about the party, but I’m
telling you I don’t know who he is.
Q. Notwithstanding the fact that your entire statement
referring to Andre Watley, Andre Watley, Andre Watley,
now you don’t know?
A. No, sir. I don’t know who he is.
N.T., 7/13/10, at 132-33.
Q. And with the State Police standing at your window, you
knew you got guns in the car?
A. Yes.
Q. And you knew you got Watley sitting next to you or had
he run yet?
A. I don’t know who Watley is.
Q. Well, let me help you. Look over there.
A. I never seen him before in my life.
Q. Never saw him before in your whole life?
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A. No, sir.
Q. Andre Watley, all the way through the statement; right?
A. Yes.
Q. Now you’re telling me you never seen him before?
A. No, sir.
Id. at 136.
Q. Now, I said so it’s not mine. I went through that
already. But now you’re telling us you did know it was
there. Officers at your window asking for a license, you
didn’t have your license, so you gave them an alias.
You gave them a fake name; right?
A. Yes.
Q. And came back as your real name Randy Hayward. You
were taken into custody and then Watley ran; right?
A. I don’t know who ran.
Q. Somebody ran.
A. Somebody ran.
Q. The person that throughout your interview with police
you called Andre Watley; right?
A. No, sir.
Q. No, sir?
A. I said, No, sir. It wasn’t Andre Watley. I’m watching
him right now. It wasn’t him.
Id. at 136-37.
Q. You told the state police, yeah, that’s the guy who was
driving the car. I’m wearing his coat. Remember that?
A. No. I don’t remember that, sir.
Q. You don’t remember that?
A. No.
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Q. But there’s no question Commonwealth’s Exhibit 6 is
your statement in your hand, signed by you; correct?
A. Yes.
Q. But somehow your testimony today is that it was not
Andre Watley with you; is that correct?
A. Yes, sir.
Q. With your written statement and your interview with the
police being in exact contradiction; right?
A. Yes.
Id. at 138-39.
Similarly, Hayward affirmatively denied at trial knowing
several important facts, such as the meaning of the term
“slammer,” despite having told the police in his written statement
that Watley had used the term to refer to a gun under the seat of
the car.
Q. Right here, That’s when Andre Watley. You see where
you wrote that.
A. Yes.
Q. February 20, 2009?
A. Yes.
Q. That’s when Andre Watley told me there’s a slammer
under the seat. Tell them what a slammer is. Tell the
ladies and gentlemen of the jury what a slammer is.
A. I don’t know what it is.
Q. You don’t know what that is either?
A. No, sir.
Q. So when Watley told you there was a slammer under
the seat, you’re telling us you didn’t know what that
meant?
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A. No, sir.
Q. But in the very next line, the very next set of words,
you tell us what a slammer is, because you know what a
slammer is. You know, you’re with Watley. Let’s read on.
I stated no because we are only speeding. And that’s
when Andre Watley told me there’s a slammer under the
seat, which means -- right in the statement -- you see
that? Which means gun. That’s your statement; right,
sir?
A. Yes. I’m reading it.
Q. Okay. That’s what it says; right?
A. Yes. That’s what it says.
Q. That’s your statement. I said no. Excuse me. I said so
-- this is you speaking -- I said, So it’s not mine. And then
he, Watley, said, It isn’t mine either; right? That’s what
you wrote?
A. Yes. That’s what I wrote.
Id. at 134-36.
We agree with the PCRA court that Hayward’s trial testimony “was
plainly inconsistent with his prior sworn testimony on multiple occasions.”
PCRA Op. at 12. Hayward acknowledged that he wrote and signed a
statement to the police on February 20, 2009. N.T., 7/13/10, at 124-25.
Hayward also acknowledged his previous guilty plea colloquy. Id. at 139.
However, contrary to both his signed written statement and his plea
colloquy, in his trial testimony Hayward expressly denied that Watley was in
the car with him on the day in question, that Watley had told him about the
gun under the seat of the car, and that Watley was the person who had run
from the car to elude the police. Indeed, Hayward himself, in response to a
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question from the prosecutor, conceded that his trial testimony was in “exact
contradiction” to his statement to the police. Id. at 138-39. In short,
contrary to Watley’s claim on appeal, Hayward’s trial testimony was plainly
and materially inconsistent with both his signed prior statement to the police
and his sworn plea colloquy.
Watley’s reliance on our Supreme Court’s 1971 decision in Knudsen is
misplaced. In Knudsen, a witness testified on direct examination that he
did not know whether the defendant had cocked his gun before heading in
the direction of his victim. 278 A.2d at 882. Conversely, the witness had
earlier told the police that the defendant had cocked the gun. Id. Our
Supreme Court held that “when a witness claims he does not know or cannot
remember, the prior statements should not be introduced because of the
danger that the prior statements will be considered as substantive evidence
by the jury.” Id. at 883. While Knudsen was decided before Pennsylvania
adopted the Rules of Evidence in 1998, its central premise remains good law
– in some circumstances a mere failure of recollection at trial should not be
understood as sufficiently inconsistent with an earlier statement to warrant
the admission of the earlier statement. Nevertheless, Knudsen is readily
distinguishable. As discussed above, Hayward’s trial testimony, far from a
simple failure of recollection, directly contradicted his earlier statements.
That Hayward also responded “I don’t recall” and “I don’t remember,” see,
e.g., N.T., 7/13/10, at 125, 128, 131, hardly brings this case within
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Knudsen’s ambit. In sum, Hayward’s statement to the police and his guilty
plea colloquy were both inconsistent with his trial testimony. Because
Hayward signed and adopted the prior statement, and the guilty plea
colloquy was administered under oath at a formal legal proceeding, both
were properly admitted as substantive evidence at trial. See Lively, 610
A.2d at 11. Because Watley’s underlying substantive claim lacks merit, he
cannot satisfy the first prong of the ineffectiveness test. Accordingly, we
need not reach the second and third prongs of the test.
B. Search of Vehicle
Next, Watley claims that trial counsel was ineffective for failing to file a
motion to suppress evidence found during an unconstitutional search and
seizure of the vehicle. We disagree.
This Court has previously found that “[t]he failure to file a suppression
motion under some circumstances may be evidence of ineffective assistance
of counsel.” Commonwealth v. Metzger, 441 A.2d 1225, 1228 (Pa.Super.
1981); see also Commonwealth v. Ransome, 402 A.2d 1379, 1381 (Pa.
1979). “However, if the grounds underpinning that motion are without
merit, counsel will not be deemed ineffective for failing to so move.”
Metzger, 441 A.2d at 1228. “[T]he defendant must establish that there
was no reasonable basis for not pursuing the suppression claim and that if
the evidence had been suppressed, there is a reasonable probability the
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verdict would have been more favorable.” Commonwealth v. Melson, 556
A.2d 836, 839 (Pa.Super. 1989).
Watley contends that his trial counsel should have filed a pretrial
motion seeking suppression of all evidence – including firearms, drugs, and
receipts – recovered from the vehicle stopped by police on February 14,
2009. Watley’s Br. at 32. In particular, he argues that the officers’ search
of the vehicle, resulting in discovery of a gun under the passenger floor mat,
was unconstitutional. Id. at 36. After the vehicle was impounded, police
conducted a second search pursuant to a warrant. PCRA Op. at 14. Watley
argues that the evidence recovered from this search should have been
suppressed as fruit of the poisonous tree. Watley’s Br. at 37.
We find that Watley’s trial counsel was not ineffective because a
motion to suppress the evidence would have been without merit. Watley’s
claim turns on whether it was constitutionally proper for Trooper Acevedo to
have lifted the floor mat on the passenger’s side of the car. We agree with
the PCRA court that “[Trooper] Acevedo’s action in lifting the floor mat” was
a constitutionally permissible protective search for weapons. PCRA Op. at
14. The United States Supreme Court, in addressing when a police officer
may conduct a protective weapons search of the interior compartment of a
car, has held that:
[T]he search of the passenger compartment of an
automobile, limited to those areas in which a weapon may
be placed or hidden, is permissible if the police officer
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possesses a reasonable belief based on “specific and
articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant the
officers believing that the suspect is dangerous and the
suspect may gain immediate control of weapons.”
Michigan v. Long, 463 U.S. 1032, 1049 (1983) (quoting Terry v. Ohio,
392 U.S. 1, 21 (1968)).7 Our Supreme Court has stated that a police officer
may conduct a protective weapons sweep of a vehicle where the officer has
sufficient facts at his disposal such that a “reasonably prudent man would
have believed his safety was compromised.” Commonwealth v. Morris,
644 A.2d 721, 723 (Pa. 1994). Accordingly, “[w]e look at the totality of the
circumstances facing an officer when we examine whether that officer came
to a reasonable suspicion to search for a weapon.” Commonwealth v.
Tuggles, 58 A.3d 840, 843 (Pa.Super. 2012).
The totality of the circumstances in this case gave the officers
reasonable suspicion to support a protective search of the car for weapons.
As Trooper Acevedo testified, upon first approaching the car and looking
inside, he observed that Hayward, who was sitting in the passenger seat,
had his knees together and was suspiciously covering up the area
underneath his knees. N.T., 7/13/10, at 37, 103-04. After running the
information Hayward provided through the computer, the officers discovered
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7
In Commonwealth v. Morris, 644 A.2d 721 (Pa. 1994), “our
Supreme Court concluded that the Long standard comported with the
Pennsylvania Constitution.” Commonwealth v. Tuggles, 58 A.3d 840, 843
(Pa.Super. 2012).
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that there was an outstanding warrant for Hayward’s arrest and decided to
take him into custody. Id. at 206. First, the officers told Watley to exit the
car, took the keys out of the ignition, and permitted Watley to re-enter the
car. Id. at 37, 207. They then removed Hayward from the car to take him
into custody. Id. At this time, Trooper Acevedo “observed that the floor
mat was bunched up really high and that something was there. . . .
[u]nderneath the floor mat.” Id. at 38.
Trooper Acevedo had reasonable suspicion to believe a firearm was
under the floor mat in an area that Hayward, who had an outstanding arrest
warrant, had earlier appeared to be covering up. Further, he had reasonable
suspicion to fear for his safety, as Watley was still in the vehicle where he
could easily access the object underneath the passenger’s side floor mat. 8
See Tuggles, 58 A.3d at 844 (finding that police were permitted to ensure
that suspect would not be able to gain access to a weapon in his vehicle
upon return to his car after the close of investigative detention).
Watley observes that neither of the troopers testified that they feared
for their safety before looking under the floor mat, and that the officers did
not search Watley prior to letting him back into the car. Watley’s Br. at 36.
The relevant inquiry, however, is not the officers’ subjective beliefs at any
____________________________________________
8
Trooper Acevedo testified that when he discovered the gun under the
floor mat, “[t]he gun was within arm’s reach of the driver at that point.”
N.T., 7/13/10, at 109.
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given time but the objective reasonableness of the search under the totality
of the circumstances. Tuggles, 58 A.3d at 843. The officers’ discovery of
the bulge in the floor mat while Watley was in the car fundamentally
changed the totality of the circumstances.9 As stated above, Trooper
Acevedo had yet to observe the floor mat when Watley was allowed re-enter
the car. Furthermore, although Trooper Acevedo had seen Hayward
covering up an area of the car, he had no further reason to believe that
Hayward might have been actively concealing a weapon, until he saw the
bulge.10
Here, the officers acted on a reasonably prudent belief that their safety
was compromised once they saw the bulge in the floor mat in an area that
an unsecured person in the car could readily access. Accordingly, because
the claim that the evidence should have been suppressed lacks merit, we
need not reach the second and third prongs of the ineffectiveness test.
____________________________________________
9
Although the occupants of the car complied the officers’ instructions,
at least up to the time Watley fled, “cooperation with police does not erase
an otherwise valid belief that a defendant may have access to a gun.”
Tuggles, 58 A.3d at 845.
10
This Court has previously held that “[w]here a person performs an
activity that is indicative of an attempt to secrete a weapon, that movement,
regardless of whether it is singular, or multiple, can support a belief that the
person has a gun.” Tuggles, 58 A.3d at 844. Although the record does not
suggest that the troopers immediately feared for their safety when Trooper
Acevedo first observed Hayward concealing an area of the car, this act of
concealment coupled with the actual discovery of the bulge in the floor mat
supported the officers’ subsequent belief that there was a gun.
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C. Investigation and Trial Preparation
Watley also claims that trial counsel was ineffective for failing to
conduct a proper investigation of the case, including failing to spend
sufficient time consulting with Watley prior to trial, resulting in a failure to
advise Watley to testify and a failure to call critical alibi witnesses on
Watley’s behalf. Watley’s Br. at 41. This claim lacks merit.
“[C]ounsel is not deemed ineffective per se merely because of the
short amount of time he has met with his client.” Commonwealth v.
Porter, 728 A.2d 890, 896 (Pa. 1999). “[T]he time actually spent by
counsel with the accused discussing his case is not necessarily related to,
and affords no basis for inferring, the extent of total trial preparation.”
Commonwealth v. Owens, 312 A.2d 378, 381 (Pa. 1973). Rather, “to
establish [ineffectiveness of counsel] Appellant must establish that counsel
inexcusably failed to raise issues which, had they been raised, would have
afforded Appellant relief.” Porter, 728 A.2d at 896.
Watley alleges that he interacted with counsel only once before trial,
“during which Attorney Sletvold simply presented him with a Rule 600
waiver form and asked him to sign it.” Watley’s Br. at 14. According to
Watley, “[a]t that time, Attorney Sletvold did not engage in any detailed
discussion of the case with [him].” Id. In contrast, Attorney Sletvold
testified at the PCRA hearing that he met with Watley on a number of
occasions prior to trial:
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Q: In your file in this case, would it be your typical practice
to mark down when you meet with a client to discuss his
case?
A: Sometimes it is. Not usually, because with Court-
appointed cases, I’m not paid or I don’t bill for my time, so
I try to meet with clients when I’m able to. And certainly
for a serious case like this, I tried to meet with him as
much as I thought was necessary to be prepared for the
trial.
...
Q: And I’m sorry to keep badgering you about this, but
beyond testifying that you met with him more than once,
can you narrow it down to any extent?
A. I would have met with him to discuss what he wanted to
do with the case. I would have met with him to discuss
the allegations in discovering the case and I would have
met with him prior to trial, certainly when it got much
closer to trial more frequently, just to make sure that he
understood what was going on, what the procedure was
and what evidence we would be either presenting or
fighting as the case proceeded.
N.T., 10/9/15, at 6-8. The PCRA court found Watley’s testimony not credible
and Attorney Sletvold’s testimony credible. We are bound by the PCRA
court’s credibility determinations. Commonwealth v. Abu Jamal, 720
A.2d 79, 93 (Pa. 1998). Therefore, we find the PCRA court did not err in
concluding that Attorney Sletvold did not fail to consult with Watley.
Further, the PCRA court did not err in concluding that counsel was not
ineffective for failing to call alibi witnesses. The PCRA court found Watley’s
aunt, Karen Burton, not credible when testifying that she had communicated
Watley’s alibi to Attorney Sletvold. PCRA Op. at 18. While Burton testified
that she spoke to Attorney Sletvold over the phone on two occasions before
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trial, she could not state when these conversations occurred.11 She further
testified that, “despite believing that she had an alibi for [Watley], she did
not contact the authorities with this information.” Id. The PCRA court found
Attorney Sletvold credible when he testified that just before trial, he was
approached by females whose identities he could not recall, and was
uncomfortable during his conversations with them, because it appeared the
women intended to perjure themselves. Id. at 19-20. Further, the PCRA
court found that Attorney Sletvold credibly testified that Watley’s aunt and
uncle did not contact him prior to trial concerning an alibi, and that Watley
never told Attorney Sletvold that he was at his aunt and uncle’s house
during the time period in question. Id. at 20. Accordingly, given the PCRA
court’s fully supported conclusion that counsel had not been made aware of
any truthful alibi witnesses prior to trial, he cannot be found ineffective. Id.
We also conclude the PCRA court did not err in finding that Attorney
Sletvold was not ineffective for failing to advise Watley to testify. 12 The
PCRA court found that Watley’s testimony – that Attorney Sletvold did not
____________________________________________
11
Burton testified that she spoke to Attorney Sletvold “way prior to a
week before the trial” but was unable to provide any more specific estimate
when asked. N.T., 10/8/15, at 82.
12
Watley asserts that he would have testified as to how Chonce Acey
came into possession of the Western Union receipts bearing Watley’s name,
as well as Watley’s whereabouts at the time of the arrest, and that Attorney
Sletvold would have learned this information had he consulted with Watley
prior to trial. Watley’s Br. 41-43.
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speak to him about the decision to testify prior to trial – was not credible.
PCRA Op. at 21. Rather, the PCRA court found that Attorney Sletvold
credibly testified that, while he could not recall a specific conservation with
Watley, he would have discussed the decision to testify with Watley prior to
trial, and would not have presented him with this choice at the last minute.
Id. Moreover, Attorney Sletvold’s testimony is supported by Watley’s
colloquy at trial, wherein Watley stated that it was his decision not to
testify, and that Attorney Sletvold told him that “It’s ultimately my decision
of taking the stand or not.” Id.; N.T., 7/14/10, at 95. Finally, Watley also
testified at the PCRA hearing that it was his choice not to testify at trial.
N.T., 10/9/15, at 108.
II. REQUEST FOR FINGERPRINT ANALYSIS
Finally, Watley seeks reversal of the PCRA court’s November 12, 2015
order denying his motion for fingerprint analysis of an identification (“ID”)
card bearing the name “Chonce Acey,” given to the police by the driver of
the car and admitted by the Commonwealth as evidence at trial. As both
parties acknowledge, “no discovery shall be permitted at any stage of
[PCRA] proceedings, except upon leave of court after a showing of
exceptional circumstances.” Pa.R.Crim.P. 902(E)(1). Neither the PCRA nor
the Pennsylvania Rules of Criminal Procedure define the term “exceptional
circumstances.” Commonwealth v. Frey, 41 A.3d 605, 611 (Pa.Super.
2012). This Court, however, has held that “the trial court, in its discretion”
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determines whether a case is exceptional and warrants discovery. Id.
Thus, “[w]e will not disturb a court’s determination regarding the existence
of exceptional circumstances unless the court abused its discretion.” Id.
Watley argues that fingerprint testing is appropriate for a number of
reasons. In part, Watley claims that “the presence of his fingerprints on the
card would be highly incriminating,” while the absence of his fingerprints
“would be highly exculpatory, given that, if Watley were the driver of the
vehicle, then his fingerprints would be on the ID card.” Watley’s Br. at 49
(emphasis and footnote omitted).
We find that the PCRA court did not abuse its discretion in denying
Watley’s motion. There is nothing in the record to suggest that the PCRA
court’s decision was the result of bias, ill will, partiality, prejudice, manifest
unreasonableness, or misapplication of law. Rather, the PCRA court found
that exceptional circumstances warranting discovery did not exist. The PCRA
court reasoned:
First, we cannot conclude that the evidence alleged
to exist would be exculpatory. Exculpatory evidence is that
which tends to establish a criminal defendant's innocence.
The fingerprint evidence that Defendant contends would be
found upon testing of the ID is not of such character, and
his contention that “if [he] were the driver of the vehicle,
then his fingerprints would be on the ID card” is logically
false. The alleged absence of Defendant’s fingerprints on
the ID card in this case could be as a result of any number
of circumstances, including those consistent with his guilt
in this case, e.g. the ID was wiped by Defendant, the ID
was held by other persons in such a manner as to obscure
Defendant's prints, the ID was held by the Defendant only
along the edges, or degradation of the prints over time.
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See, e.g. Commonwealth v. Wright, 388 A.2d 1084
(Pa.Super. 1978).
Furthermore, we cannot conclude that the alleged
absence of fingerprints would be of any particular
impeachment value. At the time of trial, both Trooper
Lohrman and Trooper Acevedo positively identified
Defendant as the driver of the vehicle in question. N.T.
7/13/10, pp.33, 48-50, 202. During cross-examination,
trial counsel thoroughly tested this identification by calling
into question Trooper Lohrman’s opportunity to see the
driver under the lighting conditions that were present, the
amount of time he had in which to observe the driver, the
position from which his observation was made, and
whether a mistake can be made in distinguishing between
two people of similar features. N.T. 7/13/10, pp.247 -253.
The jury heard from the officers that an ID was provided to
them identifying the driver as Chonce Acey. N.T. 7/13/10,
p.34. The jury also heard testimony that the codefendant,
Randy Hayward, told police that Chonce Acey was not the
driver, while pointing to evidence which would tend to
identify Defendant. N.T. 7/13/10, pp.244-245. The jury
was able to consider all of this evidence in reaching its
verdict, and we cannot conclude that additional evidence of
an absence of Defendant's fingerprints on the ID would
have had such additional impeachment value as to render
the circumstances in this case exceptional so as to warrant
discovery.
Order of Court, Statement of Reasons, 11/12/15, at 2-4 (emphasis in
original).
Watley further argues that Attorney Sletvold was “ineffective for failing
to request fingerprint analysis of the ID card prior to trial.” Watley’s Br. at
48. As Watley acknowledges, a PCRA petitioner alleging ineffective
assistance of counsel must demonstrate resulting prejudice in order to
prevail on his claim. Id. Watley argues that he cannot demonstrate the
required prejudice “unless the ID card is actually analyzed and the analysis
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confirms that Watley’s fingerprints are not present.” Id. This argument is
unconvincing, and Watley offers no support from the case law for this
proposition. The law is clear that there is no discovery in PCRA proceedings
except upon a showing of exceptional circumstances, and the PCRA court
found that exceptional circumstances warranting discovery do not exist in
this matter. Accordingly, we will not order fingerprint analysis so that
Watley may advance a speculative claim for ineffectiveness of counsel, and
in essence, circumvent the PCRA court’s determination that discovery is
unwarranted.
Accordingly, because Watley is unable to demonstrate the required
prejudice, his ineffectiveness claim based on Attorney Sletvold’s alleged
failure to request fingerprint analysis fails.
Order affirmed.13
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2016
____________________________________________
13
In light of our disposition of this appeal, we note that Watley is due
for re-sentencing on his PWID conviction pursuant to the PCRA court’s
January 27, 2016 order and opinion.
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