Com. v. Dickey, M.

J-S20045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MASSAI SHAWN DICKEY :
:
Appellant : No. 687 WDA 2021
Appeal from the PCRA Order Entered May 17, 2021
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001385-2015
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: September 29, 2022
Appellant, Massai Shawn Dickey, appeals from the order entered in the
Cambria County Court of Common Pleas, which dismissed his first petition
filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.
A prior panel of this Court set forth the relevant facts and procedural
history of this appeal as follows:
On April 30, 2015, a search warrant was executed by the
Safe Street Task Force[, a joint federal, state and local
effort,] at 1127 Riffith Street in Stonycreek Township,
Pennsylvania. As a group of eight to ten officers arrived at
the residence to execute the warrant, a sizeable group of
people were encountered exiting through the front door.
[Appellant] was one of [the] people [the officers]
encountered at this time. In one of the upstairs bedrooms
of the residence, a Wilson’s brown leather jacket was found
by Special Agent (Ret.) Arnold Bernard of the Federal
Bureau of Investigation. Inside the pocket of the jacket was
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1 42 Pa.C.S.A. §§ 9541-9546.
J-S20045-22
a Taurus .38 caliber firearm. Inside a safe located in a closet
of the same room, officers recovered an Erma .22 caliber
firearm. A bedroom dresser in the same room contained
photographs depicting [Appellant], a hotel receipt with
[Appellant’s] name on it and two traffic citations issued to
[Appellant]. [Appellant] was arrested and charged with,
inter alia, two counts of Persons Not to Possess a Firearm[.]
After a two-day jury trial on January 25-26, 2017,
[Appellant] was found guilty of one count (the jury convicted
him of possessing the Taurus firearm and acquitted him of
the Erma firearm). On February 21, 2017, the [c]ourt
sentenced [Appellant] to a period of five (5) to ten (10)
years in a State Correctional Institution.
Commonwealth v. Dickey, No. 678 WDA 2017, unpublished memorandum
at 1-2 (Pa.Super. filed Feb. 28, 2018) (quoting Trial Court Opinion, filed
4/21/17, at 1-2).
This Court affirmed the judgment of sentence on February 28, 2018,
and Appellant did not seek further review with our Supreme Court. On
February 20, 2019, Appellant timely filed a pro se PCRA petition. The court
appointed counsel, who filed an amended petition on April 30, 2019. In it,
Appellant argued trial counsel was ineffective for failing to call a police witness.
On September 5, 2019, Appellant filed a counseled supplement to the
amended petition. Therein, Appellant raised an additional ineffectiveness
claim based upon trial counsel’s failure to file a petition for allowance of appeal
following the denial of relief in this Court.
After several continuances, the PCRA court conducted an evidentiary
hearing on January 14, 2021. At that time, the court received testimony from
Appellant and trial counsel. On May 17, 2021, the court dismissed Appellant’s
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PCRA petition. Appellant timely filed a notice of appeal on June 7, 2021. That
same day, the PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Appellant timely filed
his Rule 1925(b) statement on June 14, 2021.
Appellant raises two issues for our review:
Whether the PCRA court erred/abused its discretion by
failing to find trial counsel ineffective for failing to call
witness Detective Justin Arcurio on [Appellant’s] behalf?
Whether the PCRA court erred/abused its discretion by
failing to find [Appellant’s] trial counsel [in]effective for
failing to seek an appeal to the Pennsylvania Supreme
Court, when [Appellant] had requested that his appeal be
fully litigated?
(Appellant’s Brief at 4).
“Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error.” Commonwealth v. Beatty,
207 A.3d 957, 960-61 (Pa.Super. 2019), appeal denied, 655 Pa. 482, 218
A.3d 850 (2019). “[W]e review the court’s legal conclusions de novo.”
Commonwealth v. Prater, 256 A.3d 1274, 1282 (Pa.Super. 2021), appeal
denied, ___ Pa. ___, 268 A.3d 386 (2021).
Traditionally, credibility issues are resolved by the trier of
fact who had the opportunity to observe the witnesses’
demeanor. A PCRA court passes on witness credibility at
PCRA hearings, and its credibility determinations should be
provided great deference by reviewing courts.
Beatty, supra at 961 (internal citations and quotation marks omitted).
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In his first issue, Appellant argues trial counsel “failed to investigate,
interview, and/or call Detective Justin Arcurio as a witness at Appellant’s trial.”
(Appellant’s Brief at 11). Appellant asserts Detective Arcurio’s testimony
would have confirmed that another individual was present in the room where
police discovered the firearm. Appellant claims this testimony would have
cast doubt on the Commonwealth’s theory that Appellant constructively
possessed the firearm. Appellant also insists that Detective Arcurio’s
testimony about another individual “would have resulted in a reasonable
probability of acquittal.” (Id.)
Moreover, Appellant maintains that Detective Arcurio existed and was
available to testify at trial. Appellant submits that trial counsel knew of
Detective Arcurio, that he would have testified on Appellant’s behalf, and that
the absence of his testimony was prejudicial to Appellant. Based upon the
foregoing, Appellant concludes trial counsel was ineffective for failing to call
Detective Arcurio as a witness. We disagree.
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied, ___ Pa. ___, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence
could have taken place. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
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reasonable strategic basis for his or her action or inaction;
and (3) but for the errors and omissions of counsel, there is
a reasonable probability that the outcome of the
proceedings would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and
quotation marks omitted). The failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111 (2011).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit[.]” Commonwealth
v. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175,
179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514, 524,
645 A.2d 189, 194 (1994)). “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) (quoting Commonwealth v. Geathers,
847 A.2d 730, 733 (Pa.Super. 2004)).
“Once this threshold is met we apply the ‘reasonable basis’ test to
determine whether counsel’s chosen course was designed to effectuate his
client’s interests.” Commonwealth v. Kelley, 136 A.3d 1007, 1012
(Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95).
The test for deciding whether counsel had a reasonable
basis for his action or inaction is whether no competent
counsel would have chosen that action or inaction, or, the
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alternative, not chosen, offered a significantly greater
potential chance of success. Counsel’s decisions will be
considered reasonable if they effectuated his client’s
interests. We do not employ a hindsight analysis in
comparing trial counsel’s actions with other efforts he may
have taken.
Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting
Sandusky, supra at 1043-44).
“To demonstrate prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different. [A] reasonable probability is a
probability that is sufficient to undermine confidence in the outcome of the
proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312
(2014) (internal citations and quotation marks omitted). “[A] criminal
defendant alleging prejudice must show that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3,
22, 807 A.2d 872, 883 (2002)).
For claims of ineffectiveness based upon counsel’s failure to call a
witness:
A defense attorney’s failure to call certain witnesses does
not constitute per se ineffectiveness. In establishing
whether defense counsel was ineffective for failing to call
witnesses, a defendant must prove the witnesses existed,
the witnesses were ready and willing to testify, and the
absence of the witnesses’ testimony prejudiced petitioner
and denied him a fair trial.
Commonwealth v. Cox, 603 Pa. 223, 267-68, 983 A.2d 666, 693 (2009)
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(internal citations omitted). A petitioner “must show how the uncalled
witnesses’ testimony would have been beneficial under the circumstances of
the case.” Commonwealth v. Gibson, 597 Pa. 402, 441, 951 A.2d 1110,
1134 (2008).
Instantly, trial counsel testified at the PCRA hearing. At that time, PCRA
counsel commenced a line of questioning about a report prepared by Detective
Arcurio. (See N.T. PCRA Hearing, 1/14/21, at 8-10). PCRA counsel
emphasized the report’s finding “that there were two other individuals on the
second floor,” near where law enforcement recovered the contraband. (Id.
at 10). Trial counsel acknowledged that he was aware of Detective Arcurio’s
report. (Id. at 9). Nevertheless, trial counsel opted not to call the detective
as a witness and explained:
In this particular case, the Commonwealth’s case was built
on … the testimony of police officers and law enforcement.
One of my concerns was if I would have called Detective
Arcurio, I don’t know what he would have said. He could
have said something against [Appellant] that could have,
you know, not raised reasonable doubt in the eyes of the
jury. And this is no disrespect to law enforcement, I just
don’t want to keep calling in members of law enforcement
and not knowing what they’re going to say as my witness.
He would have been a hostile witness most likely. … I was
basing it on just asking the officers who were there at trial
what they saw, who was in the house, who was not in the
house. I just don’t think Detective Arcurio would have
added anything to our defense.
(Id. at 10-11). Trial counsel added that he questioned the police witnesses
about other potential suspects at crime scene, and he “felt there was enough
there to attack the Commonwealth’s case….” (Id. at 12).
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The PCRA court deemed this strategy reasonable. The court emphasized
that trial counsel’s decision could not be viewed in hindsight, and that trial
counsel adhered to a reasonable “strategy not to call any additional law
enforcement officers as witnesses.” (PCRA Court Opinion, filed 5/17/21, at
8). Moreover, the court concluded that the absence of Detective Arcurio’s
testimony was not “so prejudicial as to have denied [Appellant] a fair trial.”
(Id.) Based upon our review, we agree with the PCRA court’s conclusion that
trial counsel’s chosen course was designed to effectuate Appellant’s interests.
See King, supra; Kelley, supra. Thus, the record supports the PCRA court’s
determination, and its decision is free of legal error. See Beatty, supra.
Consequently, Appellant is not entitled to relief on his first claim.
In his second issue, Appellant claims he spoke with trial counsel
immediately after trial and informed him that “he wanted to appeal[.]”
(Appellant’s Brief at 14). Appellant “assumed” that this request evinced his
desire to appeal to both the Pennsylvania Superior and Supreme Courts, if
necessary. (See id.) Appellant argues that trial counsel subsequently
informed him of this Court’s affirmance of the judgment of sentence, but
counsel did not provide additional information about seeking further review
with our Supreme Court. Appellant maintains that he “communicated his
desires to pursue an appeal through all avenues,” and trial counsel “should
have taken special care to preserve and pursue” a petition for allowance of
appeal. (Id. at 15). Further, Appellant baldly asserts that there was “obvious
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merit” to a sufficiency of the evidence claim. (Id.) Appellant concludes that
trial counsel was ineffective for failing to pursue a petition for allowance of
appeal with our Supreme Court. We disagree.
This Court has explained:
[I]n presenting a PCRA claim of ineffective assistance of
counsel for failing to file a requested petition for allowance
of appeal, an appellant need not show that the petition
would likely have been granted, but merely that the appeal
was requested and counsel failed to act. [See
Commonwealth v. Liebel, 573 Pa. 375, 383-384, 825
A.2d 630, 635 (2003)]. In these situations, the Supreme
Court has effectively held that the prejudice prong of the
test for ineffective assistance has been established per se.
See id.On the other hand, “[b]efore a court will find ineffectiveness
of counsel for failing to file a direct appeal, the defendant
must prove that he requested an appeal and that counsel
disregarded that request.” Commonwealth v. Knighten,
742 A.2d 679, 682 (Pa.Super. 1999). Clearly, if a request
to file a direct appeal is necessary to sustain an
ineffectiveness claim based upon the failure to file a direct
appeal, then such a request is also necessary where the
alleged ineffectiveness is the failure to file a petition for
allowance of appeal. Cf. Commonwealth v. Cooke, 852
A.2d 340, 344 (Pa.Super. 2004) and Commonwealth v.
Gadsden, 832 A.2d 1082, 1088 (Pa.Super. 2003) (directing
PCRA court upon remand to determine whether appellant
requested that petition for allowance of appeal be filed).
Commonwealth v. Bath, 907 A.2d 619, 622 (Pa.Super. 2006), appeal
denied, 591 Pa. 695, 918 A.2d 741 (2007).
Where no request has been made, an appellant must
establish that a duty to consult was owed. Under Roe and
Touw, an appellant may establish a duty to consult by
indicating issues that had any potential merit for further
review. See Roe [v. Flores-Ortega, 528 U.S. 470, 480,
120 S.Ct. 1029, 1036, 145 L.Ed.2d 985 (2000);
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Commonwealth v. Touw, 781 A.2d 1250, 1254
(Pa.Super. 2001)]. This does not require appellant to
demonstrate that the Supreme Court would likely grant
review to a petition for allowance of appeal, but only that
appellant must show that any issue rises above frivolity.
Bath, supra at 623-24.
Instantly, Appellant testified that trial counsel sent him a letter notifying
him about this Court’s decision on direct appeal. Appellant claimed that this
letter did not contain any information regarding his options for a petition for
allowance of appeal, but he thought that trial counsel would “automatically go
ahead to the Supreme Court.” (N.T. PCRA Hearing at 24). Despite testifying
about the existence of this letter, Appellant failed to produce a copy of the
letter at the hearing. (See id. at 26).
In response, trial counsel indicated that it is his practice to send a letter
to clients informing them about their right to pursue an appeal to our Supreme
Court. (Id. at 15). Trial counsel could not specifically recall whether he sent
a letter to Appellant in the instant case, but he testified that he “absolutely
would have filed” a petition for allowance of appeal if Appellant had made a
request. (Id. at 17). Further, trial counsel explained that he does not
automatically file a petition for allowance of appeal because he believes it is
“more beneficial and advantageous” for his clients to begin the collateral
review process. (Id. at 14).
Based upon this testimony, the PCRA court found that Appellant did not
ask trial counsel to file a petition for allowance of appeal. (See PCRA Court
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Opinion at 13). Here, the PCRA court found trial counsel credible. We grant
deference to this finding as it is supported by the record. See Beatty, supra.
Other than Appellant’s own, self-serving testimony, the remainder of the
record fails to demonstrate that Appellant requested the filing of a petition for
allowance of appeal. To the extent that the law also required Appellant to
establish that trial counsel owed a duty to consult, Appellant’s bald assertion
of “obvious merit” failed to show that the potential sufficiency issue rose above
frivolity. See Bath, supra. Based upon the foregoing, Appellant is not
entitled to relief on his second claim. Accordingly, we affirm the order
dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2022
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