Com. v. Jacques, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANTAE JACQUES :
:
Appellant : No. 527 EDA 2019
Appeal from the PCRA Order Entered February 15, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000963-2013
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 25, 2019
Dantae Jacques appeals from the February 15, 2019 order dismissing
his PCRA petition without a hearing. We affirm.
Appellant was convicted by a jury of second-degree murder and robbery
based on the following events, which were summarized by this Court on direct
appeal:
On October 18, 2012, Appellant arranged to purchase one pound
of marijuana from the victim, Raviya Roeuth. Appellant entered
the backseat of a car driven by Mr. Roeuth at a predetermined
location, while another individual, Jony Sam, sat in the passenger
seat.
From the rear seat of the vehicle, Appellant fatally shot Mr.
Roeuth, and severely injured Mr. Sam, who sustained injuries to
his neck, wrist, and the side of his face. Appellant unlocked the
trunk of the car and stole the marijuana. He then fled the scene
of the crime.
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* Retired Senior Judge assigned to the Superior Court.
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Subsequently, a search warrant for Appellant’s residence was
issued. Officers executed the warrant at 6 a.m. on November 7,
2012, and seized a large quantity of marijuana and a scale.
Appellant was placed under arrest and transferred to the
Philadelphia homicide unit. He remained in an interrogation room
with suspects from other investigations throughout the course of
that day, and the next. During this interval, Appellant was
provided with breakfast, cheese sandwiches, beverages, and a
cheesesteak. He had access to a bathroom and slept in the
interrogation room.
Detective Brian Peters spoke with Appellant numerous times while
he remained in police custody. At approximately 4 p.m. on
November 7, 2012, Detective Peters informed Appellant of his
Miranda rights. Appellant did not request an attorney at this
time, but chose to speak with the detective, who memorialized
their conversation with handwritten notes. Later that evening,
Appellant again waived his rights, and the detective conducted a
formal interview. Detective Peters created a written statement
based on Appellant’s statements, which Appellant reviewed and
signed. The interview ended at 12:32 a.m. on November 8, 2012.
Following this interview, Detective Peters investigated the
averments attested to by Appellant in his statement. Noting
inconsistencies in that statement, Detective Peters conducted a
second interview with Appellant during the morning and early
afternoon of November 8, 2012. Appellant once again waived his
rights and confessed, in a written statement, to the shootings of
Mr. Roeuth and Mr. Sam.
Commonwealth v. Jacques, 156 A.3d 337 (Pa.Super. 2016) (unpublished
memorandum at 1-3).
Appellant filed a pre-trial motion to suppress his confession. Following
a hearing, the court denied Appellant’s motion. A jury convicted Appellant of
the abovementioned crimes, and the court sentenced him to life in prison
without possibility of parole.
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On direct appeal, Appellant challenged the denial of his motion to
suppress. We affirmed the suppression court’s finding that the statements
were voluntarily given. Jacques, supra. The Supreme Court denied allocatur
on December 28, 2016. Commonwealth v. Jacques, ___A.3d___, 2016 Pa.
LEXIS 2944 (Pa. 2016).
On January 23, 2018, Appellant filed a timely pro se PCRA petition for
post-conviction relief, and counsel was appointed. Counsel filed an amended
PCRA petition on Appellant’s behalf. The Commonwealth moved to dismiss
the petition without a hearing as the petitioner has failed to present evidence
or an appropriate offer of proof demonstrating the existence of genuine issues
of material fact, citing Pa.R.Crim.P. 909(B), and Commonwealth v. Roney,
79 A.3d 595, 604 (Pa. 2013).1 Commonwealth’s brief at 14. The PCRA court
sent Pa.R.Crim.P. 907 notice to Appellant of its intention to dismiss the petition
without a hearing because the issues were without merit. When Appellant did
not file a response, the PCRA court denied the petition by order of February
15, 2019. Appellant timely filed this appeal raising three issues for our review:
1. Did the PCRA court err in dismissing Appellant’s PCRA Petition
without a hearing because trial/direct appeal counsel was
ineffective for failing to properly litigate Appellant’s
suppression issue in relation to Appellant’s confession to
homicide detectives?
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1 The Commonwealth’s reliance upon Pa.R.Crim.P. 909(B) and
Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013), is inapt as that
Rule applies only to post-conviction proceedings in death penalty cases, and
this is not such a case.
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2. Did the PCRA court err in dismissing Appellant’s PCRA Petition
without a hearing because trial counsel was ineffective for
allowing Appellant’s prior conviction and incarceration to be
elicited at trial?
3. Did the PCRA court err in dismissing Appellant’s PCRA Petition
without a hearing because trial counsel was ineffective for
introducing character evidence when counsel knew that such
evidence would be subject to impeachment with a prior robbery
conviction?
Appellant’s brief at 4.
In reviewing the denial of PCRA relief, “this Court is limited to
ascertaining whether the evidence supports the determination of the PCRA
court and whether the ruling is free of legal error.” Commonwealth v.
Andrews, 158 A.3d 1260, 1263 (Pa.Super. 2017). All three of Appellant’s
claims implicate ineffective assistance of counsel. We start from the premise
that counsel’s performance is presumed to be constitutionally adequate. In
order to prevail on an ineffectiveness claim, the petitioner must demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) petitioner
was prejudiced by counsel’s act or omission. See Commonwealth v.
Johnson, 966 A.2d 523, 533 (Pa. 2009) (citing 42 Pa.C.S. § 9543(a)(2)(ii));
see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
A finding of “prejudice” requires the petitioner to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, supra at 703(citations omitted). When it is clear that an appellant has failed to meet the
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prejudice prong, the court may dispose of the claim on that basis alone,
without a determination of whether a petitioner met the first two prongs. See
Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.Super. 2003) (en banc).
Finally, a PCRA petitioner is not automatically entitled to an evidentiary
hearing.
“It is the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in light of the
record certified before it in order to determine if the PCRA court
erred in its determination that there were no genuine issues of
material fact in controversy and in denying relief without
conducting an evidentiary hearing.”
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citations
omitted).
Appellant alleges first that trial and appellate counsel were ineffective
because they did not challenge the confession based on “a crucial issue of
undisputed fact,” i.e., that Appellant refused to speak to Detective Peters on
November 8, 2012, and that he did not receive Miranda warnings at that
time. See Appellant’s brief at 11. Appellant contends that instead of honoring
his right to remain silent, Detective Peters sent in Detective Howard Peterman,
who did not Mirandize him before he confessed to the crimes. Instead, he
contends, both trial and appellate counsel dwelt on issues such as sleep and
nourishment in arguing that the confession was not voluntary.
The record does not support the factual predicate of Appellant’s
ineffectiveness claim. Trial counsel did seek to suppress Appellant’s
confession on the ground that he invoked his right to counsel and right to
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remain silent, but that his rights were ignored. Trial counsel argued,
“[Appellant] repeatedly asserted his right to counsel and said he did not want
to talk any more” but the “Detectives continued to badger him.” N.T. Motion
Vol. I, 7/3/14, at 30.
In support of that claim, Appellant testified that he told Detective Peters
that he needed a lawyer. Id. at 147. According to Appellant, Detective Peters
left the room, and Detective Peterman came in and began to question him.
Appellant testified at the suppression hearing that he refused to speak to
Detective Peterman, and asked for Detective Peters. When Detective Peters
returned, Appellant testified that he again asked to make a phone call to ask
his mother to get him a lawyer. Id.
Trial counsel contended, based in large part on the foregoing testimony
offered by Appellant that, prior to the November 8, 2012 statement, Appellant
“asserted his right to counsel several times and they continued to question
him.” Id. at 216. Counsel argued that the waiver was invalid and that
Appellant’s statement was obtained after he had invoked his right to an
attorney should be suppressed. Id. at 217. Hence, the record refutes
Appellant’s premise that trial counsel failed to present these facts as the basis
for suppression.
As the PCRA court noted, it “heard [Appellant’s] assertion during the
suppression hearing that he invoked his right to remain silent.” PCRA Court
Opinion, 4/5/19, at 9. It considered that testimony, together with conflicting
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testimony offered by the Commonwealth. Despite Appellant’s testimony, the
suppression court found that Appellant was given his Miranda warnings, and
he waived them prior to giving his statement to Detective Peters on November
8, 2012. Id. The court found further that Appellant “did, in fact receive
Miranda warnings prior to each statement given.” N.T. Motion Vol. I, 7/3/14,
at 228. Considering the totality of the circumstances, the court found no
violation of Appellant’s rights under Miranda. Id.2 We find Appellant’s claim
that trial counsel was ineffective in this regard meritless.
Nor do we find any merit in Appellant’s claim that direct appeal counsel
was ineffective because he failed to argue the facts surrounding Detective
Peterman’s involvement after Appellant refused to talk to Detective Peters.
Appellant fails to demonstrate how the outcome of the appeal would have
been different if appellate counsel had focused on this basis for suppressing
the confession, rather than on whether the confession was involuntary and
coerced. The PCRA court found that he received Miranda warnings, and
waived his right to an attorney prior to confessing to the murder. No relief is
due.
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2 Testimony was adduced by the Commonwealth that Appellant was provided
with Miranda warnings prior to each interrogation, that “he never asked for
an attorney,” and “[h]e never asked not to be questioned.” N.T. Motion Vol.
I, 7/3/14, at 101. In addition, signed waivers were introduced into evidence.
The suppression court credited this evidence.
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Appellant’s second ineffectiveness claim relates to counsel’s failure to
file a motion in limine, or object at trial, to exclude evidence that he had been
“locked up” at Glen Mills. Appellant’s brief at 15. The evidence was admitted
as part of his confession.3 Appellant concedes that the evidence was relevant
to show that he knew the victim, but claims, without more, that “there was
definitely a manner in which that relationship could have been shown without
reference to being locked up in an institution.” Id.
The Commonwealth counters that the evidence was admissible for a
proper purpose: to show that he and the victim knew each other, and why the
victim would have trusted Appellant enough to allow Appellant to enter his
car. Commonwealth’s brief at 23. The Commonwealth also points out that it
did not exploit the passing reference. Furthermore, the Commonwealth cites
Commonwealth v. Adams-Smith, 209 A.3d 1011 (Pa.Super. 2019), for the
proposition that it was not required to sanitize its case by removing facts that
are part of its history and development. Commonwealth’s brief at 23. In
short, the Commonwealth contends that Appellant cannot demonstrate that
an objection would have been sustained, or that Appellant was prejudiced by
counsel’s alleged failure in this regard. Id. at 24. Moreover, even assuming
a timely objection would have been sustained, the Commonwealth points out
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3 The actual reference to Appellant’s stay at Glen Hills did not state that he
was “locked up.” It consisted of the following: “I met [Roeuth] up at Glen
Mills. We were in the same unit for about a year.” N.T. (Jury), 7/16/14, at
142.
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that the jury already had been told that Appellant would testify in his own
defense. Thus, it was inevitable that his adjudication for robbery as a juvenile
would have been revealed on cross-examination. Id. Finally, given
Appellant’s confession and the strong evidence corroborating his guilt, the
Commonwealth argues that there is no reasonable probability that had counsel
successfully objected, the result would have been different. Id. at 24-25.
The PCRA court noted that even Appellant conceded that there was a
proper purpose for the admission of such Rule 404(b) evidence, and Appellant
did not establish that it was unfairly prejudicial in this case. Since the evidence
was relevant, and not admitted to show that Appellant possessed a bad
character or a propensity to commit crimes, it was generally admissible. PCRA
Court Opinion, 4/5/19, at 12. Furthermore, Appellant failed to suggest an
alternative means for advising the jury about the relationship. Echoing the
Commonwealth’s position, the PCRA court stated that it was aware that
Appellant intended to testify and that his prior robbery adjudication would
have been a basis for cross-examination. It concluded that trial counsel could
not be deemed ineffective for failing to file a motion or make an objection that
was futile. Id. (citing Commonwealth v. Jones, 912 A.2d 268, 278 (Pa.
2006). We find no error or abuse of discretion, and hence, no relief is due on
this claim.
Finally, Appellant contends that trial counsel was ineffective in
presenting a character witness to testify to his reputation for non-violence.
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He claims that trial counsel had no reasonable basis for such a strategy, as it
resulted in the jury learning that he had committed a prior robbery.
Appellant’s brief at 12-13.
Again, Appellant’s claim lacks merit. The jury heard that Appellant had
a prior adjudication that resulted in him being placed in a juvenile facility
where he met the murder victim. Trial counsel mitigated the prejudicial effect
of that evidence by eliciting from Appellant’s mother on redirect examination
that the prior adjudication was for a robbery that occurred when Appellant
was thirteen years old and involved a bicycle. As the PCRA court explained,
“the details of the crime as stated sounded like a kid being a kid rather than
a violent person who gets sent to a juvenile institution.” PCRA Court Opinion,
4/5/19, at 13. The court reasoned that since trial counsel could not prevent
the jury from hearing that Appellant had been detained as a juvenile, defense
counsel “framed [Appellant’s] record in a way that he sounded like a child
rather than a hardened offender.” Id. at 14. Moreover, counsel’s strategy
permitted Appellant to request a jury instruction on good character and
nonviolence. Id. Hence, the PCRA court found no support for Appellant’s
claim that trial counsel lacked a reasonable basis for his decision. We find no
error or abuse of discretion. No relief is due.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/19
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