Com. v. Taylor, D.

J-S05011-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DONTE TAYLOR, :
:
Appellant : No. 85 WDA 2014
Appeal from the PCRA Order December 5, 2013,
Court of Common Pleas, Allegheny County,
Criminal Division at No. CP-02-CR-0018805-2006
BEFORE: DONOHUE, SHOGAN and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 18, 2015
Appellant, Donte Taylor (“Taylor”), appeals from the order entered on
December 5, 2013 by the Court of Common Pleas, Allegheny County,
denying his petition for relief pursuant to the Post-Conviction Relief Act
(“PCRA”).1 For the reasons set forth herein, we affirm the PCRA court’s
order.
A prior panel of this Court provided the following summary of the facts
and procedural history:
On July 2, 2006, Detective Edward Fallert, Detective
Mark Goob, and Sergeant Jason Snyder of the
Pittsburgh Police were patrolling Creswell Street, in
Pittsburgh, in an unmarked car and in an undercover
capacity. At approximately 12:27 a.m., they
observed [Taylor] and another man sitting alone on
a wall; [Taylor] was holding a potato chip bag.
(Notes of testimony, 2/24–25/10 at 110.) As the
1
42 Pa.C.S.A. §§ 9541-46.
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officers approached, [Taylor] crumpled the bag and
put it down to his side. [Taylor] then tossed the bag
onto the ground. (Id. at 112.) At this point, the
officers, having viewed what just transpired, got out
of their vehicle and identified themselves as police
officers.
Detective Fallert testified that based on his training
and experience, he was aware that drug dealers
sometimes conceal drugs in potato chip bags or iced
tea cartons. (Id. at 18.) They typically hide them at
a nearby location and retrieve them when they need
to make a sale. Detective Fallert picked up the
potato chip bag and discovered that it contained 68
bags of crack cocaine and 55 bags of heroin. (Id. at
21, 38.) The chip bag also contained a bag of rice
which, Detective Fallert explained, is commonly used
to absorb water to prevent heroin from getting wet.
(Id. at 22.) According to Detective Fallert, the
packaging of the drugs was consistent with drugs
that are packaged for sale. (Id. at 42–43.) Thus,
based on his training and experience, he believed
the potato chip bag contained something illegal
based on “[t]he way [Taylor] acted with it.” (Id. at
19.) At this point, [Taylor] was placed under arrest.
(Id. at 23.) A search of [Taylor’s] person revealed
$127 and a cell phone; no paraphernalia was
recovered. (Id. at 24.) The Commonwealth also
presented the expert testimony of Detective Anthony
Scarpine. Detective Scarpine testified that a
hypothetical set of facts, identical to those recited
above, led him to conclude that the drugs were
packaged and possessed with intent to sell them.
(Id. at 150, 152–153, 159.)
[Taylor] testified at trial and stated that Ernest
Turner [(“Turner”)] handed him the potato chip bag
as they were sitting on the wall. (Id. at 165–166.)
[Taylor] looked inside the bag and observed the
drugs. (Id. at 166.) [Taylor] explained that he did
not want the bag and only held it for a few seconds
before the police apprehended him. (Id. at 166–
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168.) [Taylor] averred that he did not intend to take
the drugs or to sell the drugs.
Thereafter, [Taylor] was convicted of the
aforementioned charges. On May 19, 2010, [Taylor]
was sentenced to a term of imprisonment of not less
than three nor more than six years for the conviction
of possession with intent to deliver heroin, and a
consecutive sentence of five to ten years'
imprisonment for the conviction of intent to deliver
cocaine; the simple possession convictions merged
for sentencing purposes. Post-sentence motions were
filed on June 1, 2010 and denied by the trial court on
July 8, 2010. This appeal followed, and the trial court
issued on [sic] opinion on January 19, 2011.
Commonwealth v. Taylor, 33 A.3d 1283, 1284-85 (Pa. Super. 2011).
Finding no basis upon which to reverse, this Court affirmed Taylor’s
judgment of sentence. Id. at 1289. On January 18, 2012, Taylor filed a
petition for allowance of appeal to our Supreme Court, which denied the
petition on June 14, 2012.
On March 8, 2013, Taylor filed a pro se petition for relief pursuant to
the PCRA and a memorandum in support thereof. The PCRA court appointed
Christopher Urbano (“Attorney Urbano”) as counsel to assist Taylor with
filing an amended PCRA petition. On June 28, 2013, Attorney Urbano filed a
“no-merit” letter and petition to withdraw as counsel pursuant to
Pennsylvania v. Finley, 481 U.S. 551 (1987), and Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988). The PCRA court held a hearing on
December 5, 2013. At the conclusion of the hearing, the PCRA court
granted Attorney Urbano’s motion for leave to withdraw and denied Taylor’s
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PCRA petition. Taylor filed a timely notice of appeal and concise statement
of matters complained of on appeal pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure to this Court on January 8, 2014.2
On appeal, Taylor raises the following issues for our review:
(1) Did the PCRA court commit reversible error in
denying [Taylor] PCRA relief on clear claims of trial
counsel’s ineffective assistance during pre-trial and
trial[]?
(2) Did the PCRA court commit reversible error in
not finding PCRA counsel rendered ineffective
assistance for failing to present appellant‘s claim of
discretionary aspects of sentence grounded on new
case law that overruled prior commonwealth case?
Taylor’s Brief at 4.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court's findings of fact, and whether the PCRA
court's determination is free of legal error. Commonwealth v. Phillips,
31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry,
877 A.2d 479, 482 (Pa. Super. 2005)), appeal denied, 42 A.3d 1059 (Pa.
2
We note that Taylor’s notice of appeal was not docketed until January 8,
2014, and therefore, would appear to be untimely. However, “the prisoner
mailbox rule provides that a pro se prisoner’s document is deemed filed on
the date he delivers it to prison authorities for mailing.” Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citing Commonwealth v.
Jones, 700 A.2d 423, 425 (Pa. 1997)). In this case, Taylor’s appeal is
dated December 27, 2013 and the envelope in which Taylor mailed his
appeal to the Allegheny County clerk of courts is postmarked December 31,
2013. Accordingly, we conclude that Taylor delivered his appeal on
December 31, 2013, which complies with the timeliness requirement.
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2012). A PCRA petitioner must establish the claim by a preponderance of
the evidence. Commonwealth v. Gibson, 925 A.2d 167, 169 (Pa. 2007).
For his first issue on appeal, Taylor alleges that trial counsel, Giuseppe
Rosselli (“Attorney Rosselli”) provided ineffective assistance. To this end,
Taylor presents three sub-issues for our review: whether Attorney Rosselli
(1) failed “to conduct meaningful pre-trial investigation into co-defendant []
Turner’s willingness to accept full responsibility for the sole possession of the
[d]rugs”; (2) inadequately prepared Taylor to testify at the suppression
hearing; and (3) provided ineffective assistance by stipulating to the use of
the testimony at the suppression hearing for use at trial. Id. at 7-13.3
“Our longstanding test for ineffective assistance of counsel derives
from the standard set by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984).” Commonwealth v. Clark, 961 A.2d
80, 85 (Pa. 2008). The test for ineffective assistance of counsel requires the
petitioner to meet a three-prong test: (1) underlying the petitioner’s
allegation of ineffectiveness, there is a claim of arguable merit; (2)
petitioner’s counsel had no reasonable strategic basis for proceeding as he
did; and (3) the petitioner was prejudiced by counsel’s ineffectiveness. Id.3
Taylor also states in his brief that Attorney Rosselli provided ineffective
assistance by failing to file a motion in limine to exclude the drugs from use
at trial and by failing to conduct a colloquy to ensure that he knew the
benefits of a jury trial. Taylor’s Brief at 10-12. We observe, however, that
Taylor raises these issues for the first time on appeal, and therefore, the
issues are waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
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Failure to meet any one of the three prongs is fatal to petitioner’s claim of
ineffectiveness. Id.First, Taylor argues that Attorney Rosselli failed to conduct a
meaningful investigation into Turner’s willingness to accept full responsibility
for possessing the drugs. Id. at 7. The PCRA court determined that
Attorney Rosselli did not render ineffective assistance of counsel because he
could not ethically contact Turner without contacting his counsel first, he
determined that Turner would not be a beneficial witness because Taylor
would still be liable under the concept of constructive possession, and he did
not have knowledge that Turner was willing to testify on behalf of the
defense. PCRA Court Opinion, 7/19/14, at 5. The PCRA court further
concluded that the outcome of the trial would not have changed if Turner
had testified because “the evidence was clearly sufficient to convict
[Taylor].” Id. at 5-6.
After reviewing the record, we conclude that the record supports the
PCRA court’s conclusion that Attorney Rosselli did not render ineffective
assistance. In reaching our conclusion, we find the third prong of the
Strickland test to be dispositive.
To satisfy the prejudice prong of [the Strickland]
test when raising a claim of ineffectiveness for the
failure to call a potential witness at trial, our
Supreme Court has instructed that the PCRA
petitioner must establish that: (1) the witness
existed; (2) the witness was available to testify for
the defense; (3) counsel knew, or should have
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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. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citing
Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012)).
In this case, Taylor failed to establish that Turner was available or
willing to testify for the defense. Taylor did not call Turner to testify at the
PCRA hearing to establish that Turner would have testified on behalf of the
defense at Taylor’s trial. Moreover, Taylor failed to provide the PCRA court
with an affidavit from Turner indicating that he would have testified at
Taylor’s trial. This Court has held that “we will not grant relief based on an
allegation that a certain witness may have testified in the absence of an
affidavit to show that the witness would, in fact, testify[.]” Commonwealth
v. Hall, 867 A.2d 619, 631 (Pa. Super. 2005) (quoting Commonwealth v.
Days, 718 A.2d 797, 803 (Pa. Super. 1998)). Accordingly, we conclude that
Taylor failed to prove that Turner was willing to testify, and consequently,
failed to satisfy the prejudice prong of the Strickland test.4
Next, Taylor argues that Attorney Rosselli provided ineffective
assistance by inadequately preparing him to testify at the suppression
4
Although the basis of our decision differs from that of the PCRA court, “if
the court’s decision is correct, we can affirm on any ground.”
Commonwealth v. Price, 876 A.2d 988, 994 (Pa. Super. 2005) (quoting
Commonwealth v. Miller, 787 A.2d 1036, 1038 (Pa. Super. 2001), appeal
denied, 798 A.2d 1288 (Pa. 2002)).
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hearing. Taylor’s Brief at 11. Taylor states that he “was not prepared for
the questioning of the District Attorney who elicited information that made it
appear that [he] was in possession of the [c]ontrolled substances and
allowed for the improper inference to be made[.]” Id.At the PCRA hearing, Attorney Rosselli testified that he personally
prepared Taylor for trial and believed that he was prepared. N.T., 12/5/13,
at 13. The PCRA court determined that Attorney Rosselli “credibly testified
that he, indeed, prepared [Taylor] to testify at the suppression hearing.” It
is well established that “[t]he Commonwealth and this Court are bound by
the preliminary credibility determinations of the PCRA court.”
Commonwealth v. Stewart, 84 A.3d 701, 711 (Pa. Super. 2013). Thus,
absent any evidence establishing the contrary to be true, we conclude that
the record supports the PCRA court’s conclusion that Attorney Rosselli
adequately prepared Taylor for trial.
Third, Taylor contends that Attorney Rosselli erred by stipulating to the
use of the testimony at the suppression hearing for use at trial. Taylor’s
Brief at 12. Taylor states that Attorney Rosselli’s stipulation “caused unfair
prejudice to [] Taylor as he was unable to confront and cross examine
[Turner] … about the statements made to [p]olice and utilized in the [t]rial
against [] Taylor.” Id. at 12-13.
At the PCRA hearing, Attorney Rosselli testified that he stipulated to
the use of the testimony of the detectives from the suppression hearing at
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trial because the suppression hearing was held on the same day as the non-
jury trial. N.T., 12/5/13, at 15. Attorney Rosselli stated that “[b]ecause it
was a non-jury trial[,] I felt most of the testimony, if not all of it, would have
just been repetitive.” Id. at 13. Attorney Rosselli provided that he did not
see any need to recall the police officers that testified during the suppression
hearing because he “believe[d] the testimony from the suppression hearing
covered everything that [he] wanted to address on cross examination.” Id.
at 14. Finally, Attorney Rosselli stated that it was his “common practice to
stipulate to the Commonwealth’s testimony from a suppression hearing
when [he proceeded] non-jury[.]” Id. at 16.
The PCRA court concluded that stipulating to the use of testimony is a
common practice and that “[t]he record is devoid of any prejudice to
[Taylor].” PCRA Court Opinion, 7/19/14, at 7. We agree with the PCRA
court that the stipulation did not prejudice Taylor. Attorney Rosselli had the
opportunity to cross-examine the police officers during the suppression
hearing. See N.T., 2/24/10, at 26-40, 52-64, 70-73. Moreover, Taylor’s
claim that “he was unable to confront and cross examine [Turner] … about
the statements made to [p]olice and utilized in the [t]rial against []
Taylor[,]” is without merit, as we previously determined that he failed to
establish that Turner was willing to testify. We therefore conclude that
Taylor has not established prejudice sufficient to satisfy the Strickland test
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for ineffective assistance of counsel. Accordingly, we discern no abuse of
discretion. Taylor is not entitled to relief on his first issue on appeal.
For his second issue on appeal, Taylor claims that Attorney Urbano
provided ineffective assistance “for failing to raise the claim of [] Taylor’s
mandatory minimum sentence being unconstitutional, illegal and void[.]”
Taylor’s Brief at 14. Specifically, Taylor asserts that his Sixth Amendment
right “to have a jury determine any aggravating or mitigating circumstance
that would change the penalty that can be imposed upon him by statute”
was violated by the trial court’s imposition of a mandatory minimum
sentence. Id. at 16. In support of his assertion, Taylor relies upon the
United States Supreme Court decisions in Apprendi v. New Jersey, 530
U.S. 466 (2004), and Alleyne v. United States, 133 S.Ct. 2151 (2013).
Taylor argues that consistent with these decisions, his counsel provided
ineffective assistance by failing to challenge the constitutionality of his
sentence, and furthermore, that his sentence should be vacated.
In Apprendi, the United States Supreme Court concluded that “[i]t is
unconstitutional for a legislature to remove from the jury the assessment of
facts that increase the prescribed range of penalties to which a criminal
defendant is exposed.” Apprendi, 530 U.S. at 490. The Court extended its
rationale in Apprendi to its decision in Alleyne, holding that “Apprendi’s
definition of ‘elements’ necessarily includes not only facts that increase the
ceiling, but also those that increase the floor.” Alleyne, 133 S.Ct. at 2158.
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The Court explained, “Both kinds of facts alter the prescribed range of
sentences to which a defendant is exposed and do so in a manner that
aggravates the punishment. Facts that increase the mandatory minimum
sentence are therefore elements and must be submitted to the jury and
found beyond a reasonable doubt.” Id.The PCRA court did not address the merits of this claim, finding the
issue to be waived for failure to raise it in the lower court. PCRA Court
Opinion, 7/19/14, at 7. A recent panel of this Court recently concluded,
however, “that a challenge to a sentence premised upon Alleyne []
implicates the legality of the sentence and cannot be waived on appeal.”
Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc).
Thus, we disagree with the PCRA court’s determination that Taylor waived
the issue on appeal.
After reviewing the record and applicable case law, we nevertheless
conclude that Taylor is not entitled to relief under Alleyne. This Court
recently determined that
[e]ven assuming that Alleyne did announce a new
constitutional right, neither our Supreme Court, nor
the United States Supreme Court has held that
Alleyne is to be applied retroactively to cases in
which the judgment of sentence had become final.
… This Court has recognized that a new rule of
constitutional law is applied retroactively to cases on
collateral review only if the United States Supreme
Court or our Supreme Court holds it to be
retroactively applicable to those cases.
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Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citations
omitted).
In this case, Taylor’s judgment of sentence became final on September
14, 2012, ninety days after our Supreme Court denied his petition for
allowance of appeal.5 The Supreme Court did not issue its decision in
Alleyne until June 17, 2013. As provided by Miller, in order to retroactively
apply the holding in Alleyne to Taylor’s judgment of sentence, the United
States Supreme Court or our Supreme Court must have held that the
holding was retroactively applicable to cases on collateral review. Miller,
102 A.2d at 995. As neither supreme court has done so, we conclude that
Taylor is not entitled to relief. Taylor’s second issue on appeal therefore
fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2015
5
See Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 2013)
(“under the PCRA, petitioner’s judgment of sentence becomes final ninety
days after our Supreme Court rejects his or her petition for allowance of
appeal since petitioner had ninety additional days to seek review with the
United States Supreme Court.”).
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