Com. v. Ambrose, J.

J-S02033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JARON AMBROSE
Appellant No. 2227 EDA 2015
Appeal from the Order June 26, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008198-2011
BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.
MEMORANDUM BY MOULTON, J.: FILED AUGUST 03, 2017
Jaron Ambrose appeals from the June 26, 2015 order entered in the
Philadelphia County Court of Common Pleas dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.
We affirm.
The PCRA court comprehensively set forth the factual and procedural
history of this case in its June 26, 2015 order and opinion, which we adopt
and incorporate herein. See Order and Opinion, 6/26/15, at 1-3 (“PCRA Ct.
Op.”).
Ambrose filed the instant PCRA petition, pro se, on January 31, 2014.
On March 13, 2015, appointed PCRA counsel filed an amended petition. On
May 28, 2015, the PCRA court sent notice of its intent to dismiss Ambrose’s
petition pursuant to Pennsylvania Rule of Criminal Procedure 907. On June
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11, 2015, Ambrose filed a response letter originally addressed to PCRA
counsel. On June 26, 2015, the PCRA court dismissed the petition.
Thereafter, Ambrose filed a timely notice of appeal.1
Ambrose raises the following issues on appeal:
Did the trial court err when it denied [Ambrose] post-
conviction relief in the form of a new trial based on the
ineffectiveness of trial counsel and after-discovered
evidence in the absence of an evidentiary [hearing]?[2]
A. Is [Ambrose] entitled to a new trial or a remand for an
evidentiary hearing since trial counsel was ineffective when
he abdicated his responsibility as counsel to make legal
determinations that were in the best interest of [Ambrose]
by failing to request a mistrial after a juror was
approached by a member of the deceased victim’s family?
B. Is [Ambrose] entitled to a new trial or a remand for an
evidentiary hearing since appellate counsel was ineffective
for arguing in the direct appeal that the trial court should
have sua sponte declared a mistrial?
C. Is [Ambrose] entitled to a new trial or a remand for an
evidentiary hearing since trial counsel was ineffective when
he failed to file and litigate a motion to suppress
identification?
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1
On November 23, 2015, Barnabay C. Wittels, Esquire, who was
Ambrose’s PCRA counsel, entered his appearance in the instant appeal.
Thereafter, he filed an application to withdraw as counsel, which this Court
denied on February 2, 2016. On February 10, 2016, Attorney Wittels filed
an application for reconsideration of the Court’s order. On April 18, 2016,
this Court denied the application without prejudice to Attorney Wittels’ right
to apply to the PCRA court for the requested relief. On May 6, 2016, the
PCRA court appointed Mitchell S. Strutin, Esquire, to represent Ambrose.
2
We will not address separately this introductory issue, as it merely
summarizes the remaining issues Ambrose has raised on appeal.
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D. Is [Ambrose] entitled to a new trial or a remand for an
evidentiary hearing since trial counsel was ineffective when
he failed to conduct a pretrial investigation?
E. Is [Ambrose] entitled to a new trial or a remand for an
evidentiary hearing since trial counsel was ineffective when
he failed to request DNA testing be performed on the gun
retrieved, the fired cartridge casings and the magazine?
F. Is [Ambrose] entitled to a new trial or a remand for an
evidentiary hearing as a result of after-discovered
evidence based upon misconduct allegations against
Detectives James Pitts and Ohmarr Jenkins?
G. Is [Ambrose] entitled to a new trial or a remand for an
evidentiary hearing since PCRA counsel was ineffective for
failing to raise in the amended PCRA petition trial counsel’s
ineffectiveness for failing to object to the admissibility of
[Ambrose]’s Facebook photo as a denial of [Ambrose]’s
right to confrontation since the photo was not
authenticated?
H. Is [Ambrose] entitled to a new trial or a remand for an
evidentiary hearing since PCRA counsel was ineffective for
failing to raise in the amended PCRA petition trial counsel’s
ineffectiveness for failing to object to the Commonwealth’s
introduction of inadmissible hearsay?
I. Is [Ambrose] entitled to a new trial or a remand for an
evidentiary hearing since PCRA counsel was ineffective for
failing to raise in the amended PCRA petition the issue of
the prosecutor’s misconduct for failing to disclose DNA
testing which was conducted by Police Officer Edward
Fidler and trial counsel’s ineffectiveness for failing to
investigate and raise this issue at trial?
Ambrose’s Br. at 4-6.
Our standard of review from the denial of PCRA 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).
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Further, “[t]he right to an evidentiary hearing on a post-conviction
petition is not absolute.” Commonwealth v. Jordan, 772 A.2d 1011, 1014
(Pa.Super. 2001). If a claim is “patently frivolous and is without a trace of
support in either the record or from other evidence[,]” a PCRA court may
decline to hold an evidentiary hearing. Id. “[O]n appeal, [this Court] must
examine each of the issues raised in the PCRA petition in light of the record
in order to determine whether the PCRA court erred in concluding that there
were no genuine issues of material fact and denying relief without an
evidentiary hearing.” Id.
Ambrose’s first five issues (A through E) raise claims for ineffective
assistance of his 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.” 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.
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In Ambrose’s first issue, he argues that his trial counsel was ineffective
for failing to move for a mistrial after a member of the victim’s family spoke
to a juror during a lunch break prior to closing arguments.
Our Supreme Court has stated:
[T]he remedy of a mistrial is an extreme one. . . . It is
primarily within the trial court’s discretion to determine
whether Appellant was prejudiced by the event that forms
the substance of the motion. Finally, it must be
remembered that a mistrial is required only when an
incident is of such a nature that its unavoidable effect is to
deprive the appellant of a fair and impartial trial.
Commonwealth v. Lease, 703 A.2d 506, 508 (Pa.Super. 1997) (quoting
Commonwealth v. Montgomery, 626 A.2d 109, 112-13 (Pa. 1993)).
On direct appeal, Ambrose claimed the trial court erred in failing to
declare a mistrial sua sponte.3 We concluded the trial court did not err,
reasoning:
Here, the trial court dismissed the juror who was actually
approached and thoroughly interviewed every other juror
with regard to what he or she may or may not have heard.
Moreover, each juror testified unequivocally that he or she
could render a fair and impartial verdict. Moreover,
[Ambrose] was colloquied and elected to proceed.
Accordingly, we conclude that the trial court did not abuse
its discretion when it did not grant a mistrial sua sponte as
there was no manifest necessity to do so.
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3
Because a claim of ineffectiveness “raises a distinct issue for
purposes of the PCRA,” Commonwealth v. Collins, 888 A.2d 564, 573
(Pa.2005), we conclude that this claim for ineffective assistance of counsel is
not barred for having been previously litigated.
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Commonwealth v. Ambrose, No. 698 EDA 2013, unpublished
memorandum at 6 (Pa.Super. filed Dec. 4, 2013). Accordingly, because we
previously concluded that a mistrial was not necessary, the underlying claim
of Ambrose’s first issue lacks arguable merit. The PCRA court therefore did
not err in finding that Ambrose’s trial counsel was not ineffective.
In his second issue, Ambrose contends that his appellate counsel was
ineffective for arguing on direct appeal that the trial court should have sua
sponte declared a mistrial in light of the contact between the juror and
family member. Ambrose claims that appellate counsel “should never have
made this argument.” Ambrose’s Br. at 24. Rather, Ambrose argues that
the decision to request a mistrial lay with trial counsel, and not with
Ambrose himself or the trial court. Because we previously concluded that a
mistrial was not necessary, the underlying claim lacks arguable merit.
Further, there is no merit to the argument that only counsel could have
requested a mistrial. Cf. Commowealth v. Kelly, 797 A.2d 925, 936
(Pa.Super. 2002) (“It is within a trial judge’s discretion to declare a mistrial
sua sponte upon the showing of manifest necessity, and absent an abuse of
that discretion, we will not disturb his or her decision.”). Accordingly,
Ambrose cannot show that he was prejudiced by appellate counsel’s
performance. Thus, we conclude that appellate counsel was not ineffective.
Ambrose next argues that his trial counsel was ineffective for failing to
file a motion to suppress identification testimony from a Commonwealth
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witness, Shaquita Morton. The PCRA court concluded that Ambrose’s
underlying claim, that Morton’s identification testimony should have been
suppressed, had no arguable merit, and thus, counsel was not ineffective for
failing to file a motion to suppress. After our review of the certified record,
the parties’ briefs, and the relevant law, we conclude the PCRA court did not
err for the reasons stated in the PCRA court’s opinion, which we adopt and
incorporate herein. See PCRA Ct. Op. at 6-9.
Ambrose next argues that his trial counsel was ineffective for failing to
conduct a pretrial investigation. Ambrose claims that “[t]here is no evidence
that trial counsel hired an investigator, sought out witnesses or did anything
other than react to the discovery provided to him by the Commonwealth.”
Ambrose’s Br. at 27.
We first examine the part of Ambrose’s claim regarding trial counsel’s
alleged failure to investigate witnesses.
To demonstrate the arguable merit of [an] underlying
claim that his trial counsel was ineffective in failing to
present additional witnesses, Appellant must establish the
existence of and the availability of the witnesses, counsel's
actual awareness, or duty to know, of the witnesses, the
willingness and ability of the witnesses to cooperate and
appear on the defendant’s behalf and the necessity for the
proposed testimony in order to avoid prejudice. Moreover,
Appellant must show how the uncalled witnesses’
testimony would have been beneficial under the
circumstances of the case.
Commonwealth v. Gibson, 951 A.2d 1110, 1133–34 (Pa. 2008) (citations
and internal quotation omitted).
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At trial, after Ambrose’s counsel informed the court that he did not
intend to present any testimony or evidence on Ambrose’s behalf, and that
Ambrose did not intend to testify, the court colloquied Ambrose. The
following exchange occurred:
THE COURT: The first thing is, I know you have been
communicating with [your counsel] Mr. Joseph and
consulting with him and he’s been talking with you as he
examined witnesses. So the first question I have to you,
when he makes the representation that he has no
testimony to present or witnesses to present, are you in
agreement with that decision?
[AMBROSE]: Yes.
THE COURT: Is there anyone that you want him to call or
subpoena to court and they have not arrived?
[AMBROSE]: No.
THE COURT: Are you comfortable in that decision that you
have had enough time speak with your attorney and he’s
answered all of your questions?
[AMBROSE]: Yes.
N.T., 12/6/12, at 84-85. In addition, Ambrose failed to identify the
witnesses he believes counsel failed to investigate,4 either in his amended
PCRA petition5 or in his appellate brief. Therefore, we agree with the PCRA
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4
In his amended PCRA petition, Ambrose alleged that trial counsel
also failed to interview and call alibi witnesses. Amend. PCRA Pet. at 10. He
also averred that PCRA counsel was awaiting information from Ambrose
regarding the witnesses for the purpose of obtaining affidavits. Id. at n.1.
The certified record does not contain any such affidavits.
5
In his original pro se PCRA petition, Ambrose listed Shikeda Johnson
as a potential witness. However, Johnson testified at trial, N.T., 12/5/12, at
(Footnote Continued Next Page)
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court that trial counsel was not ineffective for allegedly failing to investigate
witnesses.
We also conclude that Ambrose’s claim trial counsel was ineffective for
failing to hire an investigator or for failing to do “anything other than react”
to the Commonwealth’s discovery likewise does not warrant relief. Ambrose
cites no legal authority obligating trial counsel to hire an investigator, nor is
this Court aware of such a duty; thus, the underlying claim is without merit.
The case on which Ambrose relies for his claim that counsel did nothing but
react to the Commonwealth’s discovery, Von Moltke v. Gillies, 332 U.S.
708 (1948), is irrelevant and contains no support for his claim. Thus, we
conclude that the underlying claim lacks merit.
_______________________
(Footnote Continued)
25-68, and the certification attached to Ambrose’s pro se petition indicates
that Johnson’s proposed testimony would support Ambrose’s after-
discovered evidence claim, not a claim based on counsel’s alleged failure to
investigate witnesses.
Additionally, according to the PCRA court, in Ambrose’s response to
the court’s Rule 907 notice, which is not part of the certified record,
Ambrose identified an unknown United States mail carrier as a potential
witness. PCRA Ct. Op. at 14-15. The PCRA court states that this witness
was presumably Elizabeth Gilbert. Id. at 14. Detective James Pitts testified
at trial that someone contacted Gilbert several days after the crime to
inquire whether she was the mail carrier for the street on which the crime
occurred. N.T., 12/5/12, at 56. Later, Gilbert’s supervisor contacted
Detective Pitts, informing him that Gilbert no longer wanted to be involved in
the case, was afraid, and had indicated that “she could never identify
anyone and was ultimately moved off that route.” Id.
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Ambrose next argues that his trial counsel was ineffective for failing to
request DNA testing on the recovered gun, fired cartridge casings, and gun
magazine. At a pre-trial hearing on November 29, 2012, Ambrose expressly
declined DNA testing of the murder weapon and waived his right to “later
claim that there is possible DNA evidence that could exonerate” him. N.T.,
11/29/12, at 7. As the trial court stated, “[I]n other words, if you were to
be convicted, you can’t later say I want a new trial because the DNA testing
was never done.” Id. Our Supreme Court has stated that counsel cannot
be deemed ineffective for acting in conformity with his or her client’s
instructions. Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005).
Accordingly, we agree with the PCRA court’s conclusion that counsel was not
ineffective for the reasons stated in the PCRA court’s opinion, which we
adopt and incorporate herein. See PCRA Ct. Op. at 15-18.
In Ambrose’s sixth issue, he contends that he is entitled to a new trial
based on after-discovered evidence of the alleged misconduct of two
detectives involved in Ambrose’s case. A PCRA petitioner may be eligible for
relief if he pleads and proves by a preponderance of the evidence that his
conviction resulted from “[t]he 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.
§ 9543 (a)(2)(vi). To establish a right to a new trial based on after-
discovered evidence:
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appellant must show the evidence: 1) has been discovered
after trial and could not have been obtained at or prior to
the conclusion of trial by the exercise of reasonable
diligence; 2) is not merely corroborative or cumulative; 3)
will not be used solely to impeach a witness's credibility;
and 4) is of such a nature and character that a different
verdict will likely result if a new trial is granted.
Commonwealth v. Cousar, 154 A.3d 287, 311 (Pa. 2017). Ambrose
argues that the detectives’ misconduct was documented in a November 5,
2013 newspaper article that was attached to Ambrose’s pro se PCRA
petition. Ambrose’s Br. at 30.
The Supreme Court addressed a similar argument in Commonwealth
v. Castro, 93 A.3d 818 (Pa. 2014). In Castro, the Court concluded that the
newspaper article in that case was not evidence6 for purposes of the
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6
The Court explained why the article was not evidence:
We need not belabor the question of whether a newspaper
article is evidence – the parties agree the article itself is
not evidence.11 The Superior Court erred in treating the
article as containing evidence; the article contains
allegations that suggest such evidence may exist, but
allegations in the media, whether true or false, are no
more evidence than allegations in any other out-of-court
situation. Nothing in these allegations, even read in the
broadest sense, can be described as “evidence,” and
references to the officer being under investigation for
misconduct contains no information regarding what
evidence existed to substantiate this averment. One
cannot glean from these bald allegations what evidence of
misconduct appellee intended to produce at the hearing.
As the articles themselves were not evidence, much less
sufficient evidence, we instead focus on whether the
(Footnote Continued Next Page)
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appellant’s post-sentence motion for a new trial based on after-discovered
evidence. Id. at 826. Moreover, because the newspaper article represented
the reporter’s version of what he or she had been told by another person,
the Court found that it was double hearsay. Id. The Court distinguished
Castro from Commonwealth v. Brosnick, 697 A.2d 725 (Pa. 1992), in
which the Court remanded for a new trial. In Brosnick, the appellant, who
had been convicted of driving under the influence, learned from a newspaper
article that the Pennsylvania Auditor General was investigating “the company
that manufactured items used to test the accuracy of breath-testing
machines. The ensuing report [from the Auditor General] attacked the
credibility of the machines’ certificates of accuracy.” Id. at 826–27. The
appellant then moved for a new trial, citing the report rather the newspaper
article. Id. at 827. The Castro Court found that, unlike Brosnick, there
was no “end product here, no published report, no findings made, no
charges filed.” Id. It concluded that “[w]hile newspaper articles can alert a
party to the possible existence of evidence, the party must do more than
_______________________
(Footnote Continued)
information described in the March 30 article can otherwise
serve as the basis for appellee's claim.
11
This Court and the Commonwealth and
Superior Courts have held newspaper
articles generally do not constitute
evidence, as they contain inadmissible
hearsay.
Castro, 93 A.3d at 825–26 (internal citations omitted).
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attach the article as establishing the evidence that will meet the four-
pronged test.” Id.
Ambrose contends that because the detectives involved in his case
have been removed from their positions and because “some of the
convictions in cases in which they were involved” have been overturned,
“[t]his calls into question the propriety of the investigation and the tactics
employed and utilized to obtain witness statements and identification.”
Ambrose’s Br. at 32. Ambrose baldly asserts that “[i]n the instant matter,
witnesses were prepared to testify that they were pressured, intimidated and
threatened into giving inculpatory statement[s] and testimony against” him,
id.; notably, however, in his brief he does not identify any of the witnesses.
As stated above, in his pro se PCRA petition, Ambrose asserted that Shikeda
Johnson could testify as to possible police misconduct in relation to this
matter. Specifically, Johnson would testify that she gave statements to
police and testified because “she was pressured, intimidated, [and] possibly
threatened” by Detective Pitts and “possibly Robyn Alston[.]” PCRA Pet. at
7. However, Ambrose has failed to established that “the evidence was
discovered after trial and could not have been obtained at or prior to the
conclusion of trial by the exercise of reasonable diligence.” Cousar, 154
A.3d at 311.
At trial, Johnson testified as follows:
Q. Did [the police] say that they were going to take [your]
child from you?
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A. Yeah. They were threatening me.
Q. Is that why you gave the statement?
A. No. They asked me questions and I answered them. But
this right here is not what I'm saying. He put extra stuff in
here.
Q. So what's the extra stuff that he put in?
A. The big paragraph right here.
Q. You didn't say any of that?
A. No. He put it in his words. That's not how I put it in
mind.
N.T., 12/5/12, at 58. Johnson further testified that although she was asked
to review her statement for accuracy and then sign it, which she did, she
was “trying to sign it and go get [her] child.” Id. at 65. She testified that a
police officer told her that the quicker she signed her statement, the quicker
she could “get out to be with [her] child.” Id. at 67. Ambrose does not
explain why any testimony regarding possible police misconduct could not
have been obtained before the conclusion of trial by the exercise of
reasonable diligence. Therefore, Ambrose is not entitled to relief on his
after-discovered evidence claim.
Additionally, we conclude that Ambrose’s last three issues, which claim
ineffectiveness of PCRA counsel, cannot be reviewed for the first time on
appeal. See Commonwealth v. Henkel, 90 A.3d 16, 20, 30 (Pa.Super.
2014) (en banc) (holding that “claims of PCRA counsel's ineffectiveness may
not be raised for the first time on appeal” and that such claims are
unreviewable); Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa.Super.
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2012) (holding that “absent recognition of a constitutional right to effective
collateral review counsel, claims of PCRA counsel ineffectiveness cannot be
raised for the first time after a notice of appeal has been taken from the
underlying PCRA matter”).
Finally, because there were no genuine issues of material fact, we
conclude that the PCRA court properly dismissed Ambrose’s PCRA petition
without an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2017
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