Com. v. Phillips, G.

J-S47023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GABRIELL PHILLIPS,
Appellant No. 2612 EDA 2013
Appeal from the PCRA Order of August 22, 2013
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007782-2008
BEFORE: MUNDY, OLSON AND WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 12, 2014
Appellant, Gabriell Phillips, appeals from the order entered on August
22, 2013, denying relief on his first petition pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
The PCRA court summarized the facts and procedural history of this
case as follows:
On February 24, 2009, after [a bench trial], [Appellant]
was found guilty of the manufacture, delivery, or possession
of cocaine with the intent to manufacture or deliver,
criminal conspiracy, and intentional possession of a
controlled substance by a person not registered to possess
controlled substances. Pursuant to a plea agreement,
[Appellant] was sentenced on April 21, 2009, to a term of
imprisonment of not less than three nor more than six years
in a state correctional facility, and a consecutive four-year
term of probation. [Appellant] filed a notice of appeal on
May 15, 2009, and [the trial court] issued an order on May
27, 2009, directing [Appellant] to file a statement of
matters complained of on appeal within twenty-one days.
J-S47023-14
[Appellant] filed a docketing statement on June 1, 2009,
but did not file a statement of matters complained of on
appeal. On July 22, 2009, [the trial court] issued an opinion
stating that since [Appellant] had not filed a statement of
matters complained of on appeal, there were no issues
should be quashed. On September 4, 2009, [this Court]
remanded this case for sixty days in order to give
[Appellant] a chance to file a statement of matters
complained of on appeal. [Appellant] filed a statement of
matters complained of on appeal on September 18, 2009.
2010, and on July 16, 2010, [Appellant] filed a [PCRA]
petition. Thereafter, an amended PCRA petition was filed by
counsel on September 15, 2010. On October 21, 2011, an
order granting a motion for change of counsel was entered
and Sharif Abaza, Esq. was appointed.
On November 22, 2011, a video hearing was held but
was continued. On February 12, 2013, a motion to re-list
the PCRA hearing was filed by counsel. On March 27, 2013,
a hearing was scheduled for April 26, 2013. On August 22,
2013, [the trial court] denied [Appe
PCRA Court Opinion, 12/4/2013, at 2-3. This timely appeal followed.1
Appellant presents the following issue for our review:
A. Did the lower court err in finding that this [PCRA]
petition was not granted?
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1
On September 11, 2013, Appellant filed a notice of appeal. On September
30, 2013, the PCRA court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied on October 15, 2013. The PCRA court issued an opinion pursuant
to Pa.R.A.P. 1925(a) on December 4, 2013.
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Appellant claims that trial counsel was ineffective for failing to call a
witness in order to challenge an affidavit of probable cause and to support
suppression of narcotics found in a storage locker. More specifically,
Appellant asserts that the manager
nse
2
Id.
Our standard of review is as follows:
We review an order granting a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA
court's ruling if it is supported by evidence of record and is
free of legal error. Further, we afford great deference to
the factual findings of the PCRA court and will not disturb
those findings unless they have no support in the record.
Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (internal
citations and quotations omitted).
____________________________________________
2
To the extent that Appellant raised additional claims before the PCRA court
and failed to raise those issues on appeal, they are not presently before us.
See Commonwealth v. Whitaker, 30 A.3d 1195, 1197 n.7 (Pa. Super.
2011)(Appellant waived appellate review of issues included in his concise
statement of the errors complaint on appeal but not developed in appellate
brief).
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To plead and prove ineffective assistance of counsel a petitioner must
establish:
(1) that the underlying issue has arguable merit; (2)
counsel's actions lacked an objective reasonable basis; and
(3) actual prejudice resulted from counsel's act or failure to
act. Where the petitioner fails to plead or meet any
elements of the above-cited test, his claim must fail.
Id. at 706-707 (citations and quotation omitted).
To satisfy the prejudice prong of this test when raising a claim of
ineffectiveness for the failure to call a potential witness, 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
known, of the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have
denied the defendant a fair trial.
Commonwealth v. Sneed, 45 A.3d 1096, 1108 1109 (Pa. 2012).
In this case, the PCRA court held a hearing wherein Appellant and trial
counsel testified. Appellant testified as follows:
I asked [trial counsel] to subpoena a guy named
Morris who ran, actually, the storage unit in Bensalem. And
he can attest that the officer officers misrepresented
themselves when they sent out the affidavit about the
[drug-sniffing] dog going to my locker, going to 30 lockers
and then going to my locker and tested positive for drugs.
It was never no drugs in there. I kept a vehicle in there.
And Mr. Morris had evidence, had testimony that would
went directly to my lockers. And they had four dogs and
none of the dogs did anything. And but the affidavit says
that they had one dog and they went to 30 lockers and back
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to my locker an[d] the dog went crazy. Mr. Morris had
Id. at 20. Appellant
further testified that trial counsel told him that a private investigator could
not locate Mr. Morris. Id. at 14.
In contrast, trial counsel testified that:
[Appellant] indicated that he bumped into somebody, I
did say he bumped into him and spoke to him. And once he
told me that, I had my private investigator, Bill Bell, go over
to the storage locker. He did go to the storage locker. He
did speak to this individual.
This individual did not tell him, meaning Mr. Bell,
anything that the guy apparently told [Appellant]. And he
refused to cooperate with us and then suggested that we
contact corporate office to get more information, which we
received from their corporate, I believe, to there was
another attorney involved in this case. I think it was Guy
Sciolla.
* * *
want to call a witness who was not going to cooperate with
Id. at 30-31.
the decision, and we will not usurp that determination. The proposed
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witness refused to testify for the defense. Thus, Appellant failed to satisfy
the prejudice prong of the test for counsel ineffectiveness under the PCRA.
Accordingly, his sole appellate issue fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2014
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