Com. v. Douglas, T.

J-S23006-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
TERRELL LEE DOUGLAS
Appellant No. 243 MDA 2022
Appeal from the PCRA Order Entered January 11, 2022
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0004313-2016
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED OCTOBER 13, 2022
Appellant Terrell Lee Douglas appeals from the January 11, 2022 order
of the of the Court of Common Pleas of Berks County (“PCRA court”), which
denied his petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-46. Upon review, we affirm.
The facts and procedural history of this case are undisputed. As
recounted by the PCRA court:
On September 12, 2016, Berks County Probation Officers
traveled to the premises located at 717 Locust Street in the City
of Reading (“the Property”) to conduct a home visit on Lidia
Burgos, a parolee residing in the third-floor apartment of the
Property (“the Apartment”). Ascending the stairs to the
Apartment, the officers detected the odor of burnt marijuana
emanating from the vicinity of the second floor of the building.
Arriving at the Apartment, the officers discovered [Appellant],
who was [Ms.] Burgos’ boyfriend, lying on her bed and underneath
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* Retired Senior Judge assigned to the Superior Court.
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the sheets. The officers confirmed that [Appellant] was the
subject of an active State Parole warrant, and he was taken into
custody and removed.
Because of the odor of burnt marijuana, the officers received
permission from their supervisor to do a visual search of the
bedroom. On the floor, the agents observed a plastic bag
containing ammunition. A further search of the room yielded a
loaded Colt .45 handgun, located between the mattress and box
spring upon which [Appellant] was lying when they entered. Also
found in the room were a cell phone belonging to [Appellant], two
pieces of mail addressed to him at different addresses, and a
suitcase containing men’s clothing and sneakers.
Subsequent to his arrest, [Appellant] admitted to officers of
the Reading Police Department that the gun and ammunition
belonged to him. [Ms.] Burgos, the initial subject of the home
visit, denied any knowledge as to how the gun made its way
beneath her mattress or to whom it belonged. The matter
proceeded to trial on May 15, 2017, [at] which [Appellant]
testified that the handgun actually belonged to a deceased friend
of his, Joseph Caston, and that his prior false confession was made
only to protect [Ms.] Burgos from potential consequences of a
parole violation.
[Appellant’s] trial counsel, Kathleen Dautrich, Esq., also
called Charity Young, Caston’s mother and the owner of the
Property. [Ms.] Young testified that Caston owned the handgun
that was found prior to his death, but that on the night of Caston’s
death, he left his gun at the Property prior to going out with
friends. The defense did not present any further witnesses.
On May 16, 2017, the jury convicted [Appellant] of one
count of possession of a firearm prohibited pursuant to 18 Pa.
C.S.A. § 6105 (a)(1). That same day, [Appellant] was sentenced
to a total term of incarceration in the custody of the Bureau of
Corrections of not less than five nor more than ten years, and
credited for 246 days of time served.
On May 26, 2017, trial counsel, filed timely post-sentence
motions seeking judgment of acquittal or, in the alternative, a new
trial. Th[e] court denied the post-sentence motions by order
dated May 30, 2017. Trial counsel filed a motion to withdraw on
June 6, 2017, and th[e] court granted the motion on June 7, 2017.
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On June 23, 2017, Michael Nuccio, Esq. of the Berks County
Public Defender’s Office (“Appellate Counsel”) filed a timely appeal
on [Appellant’s] behalf to the Superior Court. In its March 27,
2018 memorandum [decision], the Superior Court affirmed
[Appellant’s] judgment of sentence. No further appeal was taken.
On March 18, 2019, [Appellant] filed a timely pro se PCRA
petition[.] Lara Glenn Hoffert, Esq. (“PCRA Counsel”) was
appointed by the court to represent [Appellant]. On May 19,
2021, PCRA Counsel filed a revised amended petition for relief[.]
The amended petition alleged ineffective assistance of trial
counsel based upon two specific grounds for relief. The first was
the claim that trial counsel was ineffective for failure to call [Ms.]
Burgos as a defense witness during [Appellant’s] trial. The second
was the claim that trial counsel both failed to communicate the
terms of plea offers made by the Commonwealth, and failed to
discuss with [Appellant] the merits of any such offers.
Hearing was held on the [Appellant’s] petition on September
16, 2021. Prior to the commencement of testimony, PCRA
Counsel withdrew the claim that trial counsel failed to reveal to or
discuss with [Appellant] the plea offers made by the
Commonwealth. Thus, the hearing proceeded on the sole issue of
whether trial counsel was ineffective for failure to call [Ms.] Burgos
as a witness at [Appellant’s] jury trial. At the September 16, 2021
hearing, PCRA Counsel called both [Appellant] and [Ms.] Burgos
as witnesses. The Commonwealth called trial counsel as its sole
witness.
[Appellant] testified that he wanted both the owner of the
building and [Ms.] Burgos to testify on his behalf at trial. He
further said that he was given no explanation by trial counsel as
to why she was [not] called.
[Ms.] Burgos stated, in her testimony that she spoke to trial
counsel multiple times prior to trial, and expected to be called to
testify. She would have testified that the gun was owned by
Joseph Caston. She said she knew this because he told her he
was going to leave the gun “upstairs,” and that she did not want
him to do that since she was on parole.
On cross-examination, [Ms.] Burgos admitted that she knew
the gun remained under the mattress after Caston had died, but
stated that she left the gun for fear of getting her fingerprints on
the weapon. Conceding that when questioned by police, she told
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them that she had no idea that the gun was in the room, but
explained that she did so because she was pregnant and did not
want to get into trouble for something that was not hers. [Ms.]
Burgos further acknowledged that she has prior convictions for
both forgery and for retail theft.
The Commonwealth called trial counsel, who testified that
she had been practicing criminal law in Berks County for more
than two decades and that she is familiar with criminal and jury
trial practices in the county. Trial counsel continued that after her
engagement in this matter, she had extensive discussions with
[Appellant] regarding trial strategy and potential witnesses. Trial
counsel explained that she believed the most viable witness for
the defense at trial was [Ms.] Young, who was the owner of the
Property and knew that the gun had belonged to her now-
deceased son. Trial counsel stated that [Ms.] Young’s testimony
provided a tragic, yet essential backstory recounting how her son,
on the night of his death, left his gun at the Property.
In preparation for trial with [Appellant], trial counsel
recalled that [Appellant] instructed her that he did not want [Ms.]
Burgos called as a witness on his behalf. [Appellant] told trial
counsel that he wished to shield [Ms.] Burgos from any
consequences because [Ms.] Burgos was on supervision at the
time and the gun was found in her residence. According to trial
counsel, several times during the period prior to trial, [Appellant],
in referring to [Ms.] Burgos, said “She’s not built for jail.”
Though she did not represent [Ms.] Burgos, trial counsel did
inform [Appellant] that there would be probable consequences to
[Ms.] Burgos because she was under supervision and the gun was
found in her room. In explaining her analysis, trial counsel
elucidated that the gun having been under the bed in [Ms.]
Burgos’ room months after the death of the alleged owner of the
gun would have [been] difficult to defend if her testimony was
presented. Also significant was the fact that, at the time in
question, [Ms.] Burgos was pregnant with [Appellant’s] fourth
child.
Further concerting to trial counsel were [Ms.] Burgos’
statements to police following the incident in which she denied
knowing that the gun was in the room. Trial counsel expressed
concern regarding possible inconsistencies in [Ms.] Burgos’
testimony at trial and the impact that may have had on her
credibility and the consequences to [Appellant] of her testimony.
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Trial counsel described oscillating between calling [Ms.] Burgos as
a witness because the cross-examination of [Ms.] Young had not
gone as well as expected and because [Ms.] Burgos and [Ms.]
Young were having a dispute around the time of trial, which she
believed may complicate the strategy. [However, w]hen trial
counsel did attempt to call [Ms.] Burgos as a witness at the trial,
[she] was not in the hallway.
[Nonetheless], trial counsel remained convinced that [Ms.]
Burgos’ testimony would not have been helpful to [Appellant], but
instead, may have been worse because of the inconsistencies in
[Ms.] Burgos’ statements, as well as [Ms.] Burgos’ crimen falsi
convictions.
At the conclusion of testimony, [the court] ordered the
transcription of the notes of testimony and gave counsel 30 days
from the lodging of the notes to file briefs of argument. The Notes
were lodged on October 5, 2021. Both counsel filed timely briefs
pursuant to the briefing schedule.
PCRA Court Opinion, 1/11/22, at i-v (record citations and unnecessary
capitalizations omitted). On January 11, 2022, the court denied Appellant’s
PCRA petition. Appellant timely appealed. Both Appellant and the PCRA court
complied with Pa.R.A.P. 1925.
On appeal,1 Appellant raises a single issue for our review.
[I.] Whether the PCRA court erred in denying Appellant’s petition
for relief under the [PCRA] where trial counsel was ineffective for
failing to call Lidia Burgos as an affirmative defense witness where
Ms. Burgos was known or should have been known to the defense,
where her proffered testimony was known or should have been
known to the defense, where she was available to the defense,
where she was willing to testify at trial for the defense, and where
Appellant was prejudiced by trial counsel’s omission as it deprived
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1“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
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him of the affirmative presentation of Ms. Burgos’s exculpatory
information?
Appellant’s Brief at 5 (unnecessary capitalization omitted). Essentially, he
claims that trial counsel was ineffective for failing to call Ms. Burgos to the
stand because her testimony “would have served to reinforce the defense’s
theory of the case.” Id. at 14.
When a petitioner asserts an ineffectiveness claim, he is entitled to relief
if he pleads and proves that prior counsel rendered ineffective assistance of
counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). “To prevail on an [ineffectiveness]
claim, a PCRA petitioner must plead and prove by a preponderance of the
evidence that (1) the underlying legal claim has arguable merit; (2) counsel
had no reasonable basis for acting or failing to act; and (3) the petitioner
suffered resulting prejudice.” Commonwealth v. Reyes-Rodriguez, 111
A.3d 775, 780 (Pa. Super. 2015) (en banc) (citing Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987)).
Failure to call a witness is not ineffective assistance of counsel per se.
Commonwealth v. Cox, 983 A.2d 666, 693 (Pa. 2009) (citation omitted).
The petitioner must prove the following, in addition to meeting the above
ineffectiveness prongs, in order to prove that trial counsel was ineffective for
failing to call a witness:
(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 witness’s testimony was
so prejudicial as to have denied him a fair trial.
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Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super. 2010). “[T]rial
counsel will not be found ineffective for failing to call a witness whose
testimony would be cumulative.” Commonwealth v. Gibson, 951 A.2d
1110, 1134 (Pa. 2008) (citation omitted); see also Commonwealth v.
Milligan, 693 A.2d 1313, 1319 (Pa. Super. 1997) (“[a]s a general rule,
counsel will not be deemed ineffective for failing to call witnesses whose
testimony is merely cumulative of that of other witnesses”).
Instantly, based upon our review of the entire record, we agree with the
PCRA court’s conclusion that Appellant is not entitled to relief.2 His argument
that trial counsel was ineffective for failing to call to the stand Ms. Burgos
lacks merit. Had she been called to testify, she would have stated that the
gun recovered between the mattress and box spring belonged to Caston, who
hid it in the bedroom on the night of his death, approximately two months
prior to the parole visit and related search herein. As the PCRA court
determined, Ms. Burgos’ “testimony would . . . have added nothing of value
to the defense as it would have merely been duplicative of the claims to which
[Ms.] Young already had testified.” PCRA Court Opinion, 1/11/22, at vi-vii.
Indeed, as detailed earlier, Ms. Young testified at trial that the recovered gun
belonged to Caston, her then-deceased son. In July 2016, approximately two
months prior to the home visit, as Caston was preparing to meet some people
outside the Property, Ms. Young urged him to leave the gun at the house.
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2 Based upon our disposition, we need not decide whether Ms. Burgos was
available and willing to testify on the day of trial.
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Caston did as his mother requested. Later that evening, he was murdered.
Thus, we agree with the PCRA court’s conclusion that Ms. Burgos’ testimony
would have been cumulative. See Gibson, and Mulligan, supra.
Accordingly, Appellant does not obtain relief.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2022
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3 We acknowledge trial counsel’s concern that Ms. Burgos’ testimony and
credibility would have undermined the strength of Appellant’s case. Not only
did Ms. Burgos provide statements to police that would have been inconsistent
with her proposed trial testimony, but she also had convictions for crimen
falsi.
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