Com. v. McDonald, 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
v. :
:
JULIAN DAIN McDONALD, : No. 1721 WDA 2013
:
Appellant :
Appeal from the PCRA Order, September 25, 2013,
in the Court of Common Pleas of Bedford County
Criminal Division at No. CP-05-CR-0000328-2009
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 14, 2014
Julian Dain McDonald appeals from the order of September 25, 2013,
denying his PCRA1 petition. We affirm.
On August 1, 2009, at approximately 8:47 a.m., Pennsylvania State
Police Trooper Steven Lucia stopped a silver Chrysler on the Pennsylvania
Turnpike for tailgating a mini-van. Commonwealth v. McDonald,
Nos. 1765 & 1789 WDA 2010, unpublished memorandum at 2 (Pa.Super.
filed July 27, 2011). Appellant was the passenger; his brother and
co-defendant, Michael McDonald, was the driver. Id. at 3. Trooper Lucia
testified that when appellant rolled down his window, he immediately
smelled an overwhelming odor of raw marijuana emanating from the vehicle.
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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Id. Neither appellant nor his brother could produce a valid driver’s license.
Id. at 3-4. The registration card identified the vehicle as an Alamo rental
vehicle. Id. at 4.
Trooper Lucia testified that both men were extremely nervous. Id.
Their hands were shaking uncontrollably; they were breathing heavily and
avoiding eye contact. Id. Appellant’s face was twitching, and the artery in
his neck was visibly pounding. Id. Trooper Lucia also observed in plain
view three cell phones, a GPS unit, a large amount of Red Bull energy
drinks, fast food wrappers, and a spray can of air freshener. Id. The rental
agreement provided to Trooper Lucia was expired; it indicated that the
vehicle had been rented in Philadelphia on July 20, 2009, and was to be
returned on July 28, 2009. Id. at 5. There was no indication that the terms
of the agreement had been extended. Id. Furthermore, the renter of the
vehicle was listed as Kelly Haranczak, who was not present. Id. Neither
appellant nor his brother was listed as an authorized driver of the Chrysler
vehicle. Id.
When Trooper Lucia ran their driver’s licenses, he discovered that
appellant’s was suspended and Michael’s had expired. Id. Trooper Lucia
returned to the car and again smelled the “obvious overwhelming odor of
raw marijuana coming from the vehicle.” Id. at 6. Trooper Lucia informed
Michael that he was going to give him traffic warnings for following the
mini-van too closely and for driving with an expired license, but would not
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cite him. Id. Trooper Lucia asked Michael who had rented the Chrysler, and
he responded, “Kelly.” Id. at 7. Michael informed Trooper Lucia that Kelly
was his girlfriend. Id. Appellant also confirmed that Kelly had rented the
vehicle; however, he was unable to produce her last name. Id. at 8.
Trooper Lucia testified that both men appeared to be extremely nervous,
even though he had told them they would not be receiving a traffic citation.
Id. at 7-8.
At this point, Trooper Lucia told appellant that he was smelling an odor
of marijuana coming from the vehicle, and asked if there was anything like
that in the vehicle; appellant replied, “No.” Id. at 8. Trooper Lucia asked
for consent to search the vehicle, which was denied. Id. Michael also
denied consent to search, indicating that he had “to be somewhere.” Id. at
9. At that point, Trooper Lucia called for back-up and told appellant and
Michael that he intended to search the vehicle. Id. Trooper Lucia
discovered $1,080 in cash in a handbag in the back seat, and a large
cellophane wrapped bundle of suspected marijuana in the trunk. Id. at 10.
At the completion of the search, police recovered 177 pounds of marijuana.
Id.
Appellant and Michael filed a joint motion to suppress physical
evidence which was denied. They proceeded to a jury trial as
co-defendants, and were found guilty of one count each of possession with
intent to deliver a controlled substance (“PWID”), possession of drug
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paraphernalia, and criminal conspiracy. On October 18, 2010, they were
each sentenced to an aggregate of 6 to 11 years’ incarceration. 2 They filed
separate notices of appeal; however, the cases were consolidated on appeal.
In an unpublished memorandum filed July 27, 2011, this court affirmed the
judgments of sentence; and on February 23, 2012, our supreme court
denied allowance of appeal. Commonwealth v. McDonald, 433 WAL 2011
(Pa. filed February 23, 2012) (per curiam).
On March 15, 2012, appellant filed a timely pro se PCRA petition.
Counsel was appointed, and filed amended petitions on appellant’s behalf.
Following an evidentiary hearing, at which appellant and his brother Michael
testified, appellant’s petition was denied. This timely appeal followed.
Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the
PCRA court has filed an opinion, relying on its prior memorandum of
September 25, 2013.
Appellant has raised the following issues for this court’s review:
1. Whether the trial court erred in denying
appellant’s petition for [PCRA] relief where
newly discovered evidence unavailable at the
time of trial was exculpatory and would have
changed the outcome of the trial?
2. Whether the trial court erred in failing to find
trial counsel ineffective for failing to move to
sever appellant’s case from that of his
co-defendant prior to trial?
2
The five-year mandatory minimum for the PWID conviction was also the
statutory maximum, resulting in a flat sentence.
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3. Whether the trial court erred in failing to find
trial counsel ineffective for failing to advise
appellant that a conviction for a felony drug
offense could result in his deportation from the
United States?
Appellant’s brief at 4.
Initially, we recite our standard of review:
This Court’s standard of review regarding an order
denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
In his first issue on appeal, appellant claims he is entitled to a new
trial based on newly discovered evidence. Appellant presented an affidavit
from his brother and co-defendant, Michael, which states:
I Michael D. Mcdonald swear that on August 1, 2009
[I] acted alone in the criminal activity that i [sic] am
now incarcerated for, furthermore it is my sworn
statement that [appellant] had no knowledge of the
events that took place on the above mentioned day.
It is my sworn testimony that I Michael D. Mcdonald
acted alone and in no way conspired with
[appellant].
Petitioner’s Exhibit A; affidavit of Michael Dain McDonald, 3/11/13 at 1.
At the PCRA hearing on June 27, 2013, Michael McDonald testified that
the drugs were his and that appellant had no idea they were there. (Notes
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of testimony, 6/27/13 at 14.) When asked why he waited until March 11,
2013, to say anything, Michael testified that he was scared. (Id. at 15.)
According to Michael, he did not make this information available to appellant
until March 2013:
My -- since I’ve been incarcerated, it’s been eating
me alive. It’s just now, I really, really come to me to
come out with the truth. Because it’s just been me
holding that in. I couldn’t do it no [sic] more. I just,
I just couldn’t because he didn’t have nothing [sic]
to do with this and at that point, that’s the time I
gave up and I just say, I’m just going to let it out. I
don’t know, so.
Id. at 18-19.
Appellant is proceeding under Section 9543(a)(2)(vi) of the PCRA
statute. According to that subsection, the petitioner must plead and prove
by a preponderance of the evidence that his conviction or sentence resulted
from: “The unavailability at the time of trial of exculpatory evidence that
has subsequently become available and would have changed the outcome of
the trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi).
[Section] 9543(a)(2)(vi) provides for post-conviction
relief where a petitioner could prove a claim of newly
discovered exculpatory evidence. In order to
succeed on such a claim, the petitioner must
establish by a preponderance of the evidence that:
(1) the evidence has been discovered after the trial
and it could not have been obtained at or prior to
trial through reasonable diligence; (2) such evidence
is not cumulative; (3) it is not being used solely to
impeach credibility; and (4) such evidence would
likely compel a different verdict.
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Commonwealth v. Fiore, 780 A.2d 704, 711 (Pa.Super. 2001),
appeal granted, 797 A.2d 910 (Pa. 2002), appeal dismissed, 817 A.2d
1080 (Pa. 2003), citing Commonwealth v. Abu-Jamal, 720 A.2d 79, 94
(Pa. 1998) (citations omitted).
We agree with the PCRA court that Michael’s affidavit is not newly
discovered evidence in any traditional sense. (PCRA court opinion, 9/25/13
at 4.) Obviously, appellant knew from day one whether or not he was aware
of the marijuana in the trunk of the car. Commonwealth v. Washington,
927 A.2d 586 (Pa. 2007), is instructive. In that case, the appellant’s
co-defendant, Derrick Teagle (“Teagle”), who did not testify, asserted that
he, not the appellant, fired the fatal shot and that he lied to police about the
appellant being the shooter to avoid the death penalty. Id. at 596. Teagle
claimed that the shooting was an accident. Id. The appellant filed a PCRA
petition asserting that Teagle’s declaration constituted newly discovered
evidence compelling a new trial. Id.
Our supreme court noted that Teagle’s confession-declaration was not
technically a recantation because he did not testify against the appellant at
trial and his statement to police was only admitted as evidence against him,
not the appellant. Id. at 597. Therefore, his declaration was not a true
recantation. Id. Nevertheless, the Washington court analyzed Teagle’s
declaration consistently with prior jurisprudence pertinent to recantation
evidence; Teagle’s current assertion contradicted his pre-trial statement to
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police and was a confession to the crime for which the appellant was
convicted and sentenced. Id.
The Washington court observed that the PCRA court implicitly found
Teagle’s affidavit not to be credible. Id. The PCRA court analyzed Teagle’s
confession and noted that he had nothing to lose in contradicting his
pre-trial statement. Id. The PCRA court concluded that the evidence was
not truly after-discovered and was not persuasive evidence of the appellant’s
innocence. Id.
Similarly, here, the PCRA court listened to Michael McDonald’s
testimony and found him not to be credible. (PCRA court opinion, 9/25/13
at 4.) The PCRA court observed that, similar to Teagle in the Washington
case, Michael was already convicted and sentenced for the crime and “has
nothing to lose.” (Id.) It should also be noted that Michael and appellant
are brothers and so Michael has a motive to give false testimony. In
addition, Michael’s affidavit should be viewed the same as recanting
testimony, which has been recognized as “exceedingly unreliable.”
Commonwealth v. Loner, 836 A.2d 125, 135 (Pa.Super. 2003), appeal
denied, 852 A.2d 311 (Pa. 2004).
In fact, at the arraignment, appellant took full responsibility for the
crime. Appellant stated that Michael “had no idea about anything,” that he
was “very sorry,” and he claimed the luggage in the vehicle as his alone.
(Notes of testimony, 6/27/13 at 50.) Appellant told the magisterial district
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judge who arraigned him on these charges that he had made a mistake and
was very disappointed in himself. (Id.) So, as the PCRA court observes,
either Michael or appellant is lying. (PCRA court opinion, 9/25/13 at 4.)
Both of them have taken sole responsibility for the crime and claimed that
the other brother knew nothing. (Id.) The PCRA court’s conclusion that
Michael’s affidavit is simply not believable is fully supported by the record
and will not be disturbed on appeal. The PCRA court did not err in denying
appellant’s newly discovered evidence claim.
Appellant’s final two issues relate to trial counsel ineffectiveness.
Appellant argues that trial counsel, Steven Passarello, Esq., was ineffective
for failing to move to sever his case from that of his co-defendant, and for
failing to advise him that a conviction for a felony drug offense could result
in deportation proceedings.
“To prevail on a claim alleging counsel’s
ineffectiveness, Appellant must demonstrate (1) that
the underlying claim is of arguable merit; (2) that
counsel’s course of conduct was without a
reasonable basis designed to effectuate his client’s
interest; and (3) that he was prejudiced by counsel’s
ineffectiveness.” Commonwealth v. Wallace, 555
Pa. 397, 407, 724 A.2d 916, 921 (1999), citing
Commonwealth v. Howard, 538 Pa. 86, 93, 645
A.2d 1300, 1304 (1994) (other citation omitted). In
order to meet the prejudice prong of the
ineffectiveness standard, a defendant must show
that there is a “‘reasonable probability that but for
counsel’s unprofessional errors, the result of the
proceeding would have been different.’”
Commonwealth v. Kimball, 555 Pa. 299, 308, 724
A.2d 326, 331 (1999), quoting Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,
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80 L. Ed. 2d 674 (1984). A “‘[r]easonable probability’
is defined as ‘a probability sufficient to undermine
confidence in the outcome.’” Id. at 309, 724 A.2d at
331, quoting Strickland, 466 U.S. at 694, 104 S. Ct.
2052.
Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal
denied, 832 A.2d 435 (Pa. 2003). “We presume counsel is effective and
place upon Appellant the burden of proving otherwise. Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)
(citations omitted).
“The decision to sever co-defendants’ trials lies
within the trial court’s discretion, and will not be
disturbed absent an abuse thereof.”
Commonwealth v. Birdsong, 611 Pa. 203, 232, 24
A.3d 319, 336 (2011).
Joint trials are favored when judicial economy will be
served by avoiding the expensive and
time-consuming duplication of evidence, and where
the defendants are charged with conspiracy.
[T]he mere fact that there is hostility between
defendants, or that one may try to save himself at
the expense of another, is in itself not sufficient
grounds to require separate trials. In fact, it has
been asserted that the fact that defendants have
conflicting versions of what took place, or the
extents to which they participated in it, is a reason
for rather than against a joint trial because the truth
may be more easily determined if all are tried
together.
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Commonwealth v. Akbar, 91 A.3d 227, 231-232 (Pa.Super. 2014),
quoting Birdsong, supra (internal citations and quotation marks omitted)
(emphasis deleted).
At trial, the court ruled that appellant’s statement to police that
Michael’s girlfriend rented the vehicle was inadmissible because it could
implicate Michael and was a Bruton violation.3 (Notes of testimony, 9/9/10
at 14-16.) The jury could infer that perhaps Kelly put the marijuana in the
car or had some part in it, thereby also implicating Michael. (Id.) According
to appellant, trial counsel should have moved to sever the cases because at
a separate trial, this statement could have come in as evidence that Michael
and/or his girlfriend, and not appellant, put the marijuana in the trunk.
(Appellant’s brief at 16.)
Appellant’s argument ignores the fact that, as stated above, Michael
also told Trooper Lucia that Kelly, his girlfriend, had rented the vehicle.
(Notes of testimony, suppression, 2/9/10 at 30-31.) This statement was not
suppressed. (Notes of testimony, 9/9/10 at 14.) Therefore, the jury heard
that Kelly was Michael’s girlfriend and the rental agreement was in her
name. Appellant cannot show how he was prejudiced by counsel’s failure to
file a severance motion.
3
See Bruton v. U.S., 391 U.S. 123, 135-137 (1968) (admission of a
facially incriminating confession by a non-testifying co-defendant introduced
at the defendant and co-defendant’s joint trial, deprives a defendant of his
Sixth Amendment right to confrontation, even where the court instructs the
jury to consider the confession only against the co-defendant).
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In addition, the PCRA court states that Michael did file a motion to
sever which was denied, and appellant’s would have been similarly denied.
(PCRA court opinion, 9/25/13 at 7.) There was no basis to sever the cases,
particularly where appellant and Michael were charged as co-conspirators.
This claim fails.
Finally, appellant argues that trial counsel was ineffective for failing to
advise him of the immigration consequences of being found guilty of a felony
drug offense. Apparently, appellant is a Jamaican national and faces
deportation proceedings as a result of his conviction. Appellant relies on
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), in which the
United States Supreme Court held that counsel must inform his client
whether his plea carries a risk of deportation.
Jose Padilla, a Honduran native who had lived in the
United States for more than 40 years, pled guilty to
transportation of a large amount of marijuana, a
deportable offense under 8 U.S.C.
§ 1227(a)(2)(B)(i). Padilla, 130 S. Ct. at 1477.
Padilla claimed that counsel not only failed to advise
him of the possibility of deportation prior to entering
the plea, but also told him that he “did not have to
worry about immigration status since he had been in
the country so long.” Id. at 1478. Padilla relied on
counsel’s erroneous advice when he pleaded guilty to
the drug charges, and alleged in his post-conviction
petition that he would have gone to trial had he not
received incorrect advice from his attorney. Id.
Noting the “unique nature of deportation,” the
Padilla Court decided that, “The weight of prevailing
professional norms supports the view that counsel
must advise her client regarding the risk of
deportation.” Id. at 1481-1482. The Court found
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that, although civil in nature, “deportation is
nevertheless intimately related to the criminal
process” (id. at 1481), and concluded that “The
severity of deportation -- ‘the equivalent of
banishment or exile,’ -- only underscores how critical
it is for counsel to inform her noncitizen client that
he faces a risk of deportation.” Id. at 1486, quoting
Delgadillo v. Carmichael, 332 U.S. 388, 390-391
(1947) (footnote omitted). Ultimately, the Court in
Padilla remanded the matter for a determination as
to whether Padilla could demonstrate that he was
prejudiced by counsel’s incorrect advice. Id. at
1487.
Commonwealth v. Wah, 42 A.3d 335, 339-340 (Pa.Super. 2012).
Instantly, appellant’s reliance on Padilla is misplaced where he did not
enter a guilty plea. Rather, appellant went to trial and was found guilty by a
jury. Therefore, the Padilla line of cases is inapposite. Appellant argues
that without knowing about the potential for deportation, appellant could not
make a knowing and voluntary decision whether to go to trial or try to
negotiate a plea. (Appellant’s brief at 17.) Appellant contends that if he had
known he could be deported for a felony drug conviction, he could have tried
to negotiate a plea to a lesser, non-deportable offense. (Id.)
However, by taking a plea, Padilla was exposing himself to certain
deportation. By exercising his right to a jury trial, appellant did not face the
certainty of being deported. He could conceivably have been found not
guilty. In addition, appellant has a constitutional right to a jury trial but not
to enter a plea. The Commonwealth can force a trial if it chooses. Appellant
has cited no case law for the proposition that the holding in Padilla extends
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to cases where the defendant is found guilty after a jury trial, and we are
aware of none. This claim also fails.
Having determined, for the reasons discussed above, that the PCRA
court did not err in denying appellant’s petition, and that appellant is not
entitled to PCRA relief, we will affirm the order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2014
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