Com. v. Pierce, R.

J-S29029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAMONE PIERCE :
:
Appellant : No. 284 WDA 2022
Appeal from the PCRA Order Entered February 2, 2022
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0008454-2018
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED: OCTOBER 17, 2022
Ramone Pierce (Appellant) appeals from the order dismissing, without
a hearing, his first petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541–9546. We affirm.
In our memorandum on direct appeal, we summarized:
Appellant’s convictions arise out of a controlled purchase of
narcotics by a confidential informant (CI), which occurred on May
8, 2018 (the “May 8 controlled buy”). On that date, police
observed Appellant exit his residence, enter his white Chrysler
300, and drive to a nearby restaurant to conduct the pre-arranged
drug transaction. In the parking lot of the restaurant, the CI
entered Appellant’s car and purchased a plastic bag containing
approximately 7 grams of narcotics, with $1,250 in pre-recorded
U.S. currency. … The police subsequently apprehended Appellant
and charged him with two counts of [possession with intent to
deliver (PWID)] and other drug charges.
***
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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At trial, the CI was not called to testify on behalf of the
Commonwealth, purportedly out of concern for the CI’s safety.
The defense attacked the credibility of the CI and his or her
account that Appellant had sold narcotics to the CI. The defense
emphasized that no other witness implicated Appellant in the May
8 controlled buy, and the police did not recover any narcotics,
contraband, or pre-recorded buy money during a subsequent
search of Appellant’s residence.
The jury found Appellant guilty of two counts of PWID[.] … The
jury acquitted Appellant of the remaining drug charges.
Commonwealth v. Pierce, 2020 WL 1490968, at *1-2 (Pa. Super. Mar. 27,
2020) (unpublished memorandum), appeal denied, 238 A.3d 343 (Pa.
2020).
This Court affirmed the judgment of sentence in part and vacated in part
as to one count of PWID. We held, in accordance with our decision in
Commonwealth v. Ramsey, 214 A.3d 274 (Pa. Super. 2019), that
Appellant’s sentence on two counts of PWID was illegal because “the charges
pertained to a single compound mixture comprised of two inseparable
controlled substances.” Pierce, supra at *2. Thus, we vacated one of the
sentences for PWID. Id. at *3. Because the sentences were to run
concurrently, our decision did not upset the overall sentencing scheme, and
we did not remand for resentencing. Id. at *3 n.7. On September 8, 2020,
the Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal. See Pierce, 238 A.3d 343.
Appellant filed a timely pro se PCRA petition on August 2, 2021. The
PCRA court appointed counsel, who filed an amended petition on November
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13, 2021. On January 10, 2022, the PCRA court issued notice of its intent to
dismiss the petition without a hearing, pursuant to Pa.R.Crim.P. 907. On
January 31, 2022, Appellant filed a counseled response asserting that his
ineffective assistance of counsel claims merited relief, and the PCRA court
could not dismiss the petition without holding a hearing. Response, 1/31/22,
at 2 (unnumbered). The PCRA court dismissed the petition on February 2,
2022. This timely appeal followed. Appellant and the PCRA court have
complied with Pa.R.A.P. 1925.
Appellant raises the following issues:
1. Did the PCRA Court err in dismissing the Appellant’s [PCRA
p]etition without a hearing when trial counsel was ineffective for
failing to object to prohibited, prejudicial hearsay testimony
related to the [CI’s] speculation that he was in danger of assault
or homicide when this testimony resulted in the Appellant’s
convictions?
2. Did the PCRA Court err in dismissing Appellant’s [PCRA
p]etition without a hearing where trial counsel failed to voir dire
Juror 11 who was excused to attend to a family medical
emergency but remained through deliberations when this panelist
was unable to perform her role as a fair and impartial juror,
impacting the outcome of the proceedings?
Appellant’s Brief at 5.
We review the PCRA court’s denial of relief by “examining whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of
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the PCRA court and the evidence of record, viewed in the light most favorable
to the party who prevailed in the PCRA court proceeding.” Id.We recognize:
[T]he PCRA court has the discretion to dismiss a petition without
a hearing when the court is satisfied “that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by any further proceedings.” Pa.R.Crim.P.
909(B)(2). “[T]o obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.” Commonwealth v.
D’Amato, 856 A.2d 806, 820 (Pa. 2004).
Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).
In both issues, Appellant argues ineffectiveness of trial counsel. Our
Supreme Court has stated:
It is well-settled that counsel is presumed to have been effective
and that the petitioner bears the burden of proving counsel’s
alleged ineffectiveness. Commonwealth v. Cooper, 941 A.2d
655, 664 (Pa. 2007). To overcome this presumption, a petitioner
must establish that: (1) the underlying substantive claim has
arguable merit; (2) counsel did not have a reasonable basis for
his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance, “that is,
a reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different.” Id. A
PCRA petitioner must address each of these prongs on appeal.
See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.
2007) (explaining that “appellants continue to bear the burden of
pleading and proving each of the Pierce elements on appeal to
this Court”). A petitioner’s failure to satisfy any prong of this test
is fatal to the claim. Cooper, 941 A.2d at 664.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations
modified). “Counsel cannot be found ineffective for failing to pursue a
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baseless or meritless claim.” Commonwealth v. Taylor, 933 A.2d 1035,
1042 (Pa. Super. 2007) (citation omitted).
In his first issue, Appellant claims trial counsel was ineffective for failing
to object to the testimony of Police Officer Jason Moss regarding the CI’s
“speculation that he was in danger of assault or homicide when this testimony
resulted in Appellant’s conviction.” Appellant’s Brief at 14. We disagree.
The following principles guide our review:
With regard to evidentiary challenges, it is well established that
[t]he admissibility of evidence is at the discretion of the trial court
and only a showing of an abuse of that discretion, and resulting
prejudice, constitutes reversible error. An abuse of discretion is
not merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record. Furthermore, if in
reaching a conclusion the trial court overrides or misapplies the
law, discretion is then abused, and it is the duty of the appellate
court to correct the error.
Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (citation
and quotation marks omitted).
The Pennsylvania Rules of Evidence provide that “[a] relevant evidence
is admissible, except as otherwise provided by law. Evidence that is not
relevant is not admissible.” Pa.R.E. 402.
In addition,
[h]earsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted. Pa.R.E. 801(c). Thus, any out
of court statement offered not for its truth but to explain the
witness’s course of conduct is not hearsay. Commonwealth v.
Rega, 593 Pa. 659, 933 A.2d 997, 1017 (Pa. 2007)[, cert. denied,
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128 S.Ct. 1879 (2008] (citing Commonwealth v. Sneed, 514
Pa. 597, 526 A.2d 749, 754 (Pa. 1987)).
Commonwealth v. Johnson, 42 A.3d 1017, 1035 (Pa. 2012) (internal
quotation marks omitted).
Police Officer Jason Moss was the lead investigator in the May 8
controlled buy. Trial counsel questioned Officer Moss extensively about the
police failure to record the telephone conversations between the CI and
Appellant; the search of the CI’s car; and the details pertaining to the May 8
transaction. See, e.g., N.T., 3/14-15/19, 85-86; id. at 87-92.
On redirect, the Commonwealth questioned Officer Moss:
Q [The Commonwealth]. Okay. So [trial counsel] asked you why
the search of the car was not videotaped. Can you explain that
for the folks of the jury why that wasn’t videotaped?
A [Officer Moss]. I mean, the focus is getting down there and not
being detected. I mean, to get down there, [to] happen to have
a camera or a cell phone, whatever, I don’t know how good it
would be. Truly, I’ve never seen anybody do it.
Q. Well, you’re aware that if something was recorded, that would
have to be provided to [Appellant] in discovery?
A. Correct, and then it would show -- it would show the Cl’s
vehicle, and obviously, then, the Cl would be found out.
Q. And what happens if the Cl gets found out?
A. They’re certainly in danger.
Q. Of what?
A. Of assault or homicide.
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Id. at 100.1
While Appellant cites the three-part test from Strickland v.
Washington, 466 U.S. 668, 687 (1984), for determining counsel’s
ineffectiveness, he does not discuss the first two prongs other than to state
that they “are easily met.” Appellant’s Brief at 14. Further, Appellant provides
no legal support for his contention that Officer Moss’s testimony constituted
inadmissible hearsay. Id. at 14-16. Because Appellant has not discussed the
first two prongs of the test or provided legal support for his claim, his claim of
trial counsel’s ineffectiveness fails. See Commonwealth v. Rolan, 964 A.2d
398, 406 (Pa. Super. 2008) (where appellant fails to prove any one prong of
the ineffectiveness test, he does not meet his burden, and counsel is deemed
constitutionally effective).
Moreover, we agree with the PCRA court, which concluded:
These statements do not constitute hearsay since they were not
made by the confidential informant but instead were made by
____________________________________________
1 Appellant quotes other portions of the redirect examination of Officer Moss
he believes were objectionable. See Appellant’s Brief at 14-15. However, in
his amended PCRA petition, Appellant claimed only that counsel was
ineffective for failing to object to Officer Moss’s testimony that the CI was “in
danger of ‘assault or homicide.’ (T.T. Page 100, line 8).” Amended PCRA
Petition, 11/13/21, at 7 (unnumbered). Thus, the PCRA court had no basis to
address any other allegedly objectionable portions of Officer Moss’s testimony.
Accordingly, we limit our review to the question of whether trial counsel was
ineffective for not objecting to Officer Moss’s testimony at page 100, line 8,
because an appellant waives on appeal issues not raised in the PCRA petition.
See Commonwealth v. Lauro, 819 A.2d 100, 103-04 (Pa. Super. 2003)
(waiving five issues not in original or amended PCRA petition); Pa.R.A.P.
302(a).
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Officer Moss as an expression of his opinion regarding what may
happen if the identity of a confidential informant is revealed.
In addition, the statement was not offered for the truth of the
matter asserted, but to explain the course of conduct of the police.
The answer followed testimony by Officer Moss explaining that he
did not record an incident because it would necessarily have
involved filming information which could lead to the disclosure of
a confidential informant. (TT 99-100). Since the testimony in
question was not offered for the truth of the matter asserted, an
objection lodged on that basis would have been overruled. A
statement from a confidential informant to an officer to explain a
course of conduct is admissible. Commonwealth v. Estepp, 17
A.3d 939 (Pa. Super. 2011). Since the underlying claim lacks
merit, counsel was not ineffective in failing to raise the claim.
PCRA Court Opinion, 4/27/22, at 4.
Multiple decisions have held a police officer’s testimony concerning an
out of court statement is admissible to explain his course of conduct. See
Rega, 933 A.2d at 1017. (trooper’s testimony about what codefendant told
trooper was not inadmissible hearsay, where Commonwealth introduced
testimony to explain further investigation of codefendant and defendant);
Sneed, 526 A.2d at 754 (police officer’s testimony describing radio call which
prompted his trip to the crime scene was not hearsay because it was
introduced to explain why he went to scene); Estepp, 17 A.3d at 945 (police
officer’s testimony regarding CI’s statements was admissible to explain
officer’s course of conduct in investigating drug sales); Commonwealth v.
Dargan, 897 A.2d 496, 499, 501–02 (Pa. Super. 2006) (officer’s testimony
regarding CI’s out of court statements were admissible to explain officer’s
actions during investigation).
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Here, the record reflects the Commonwealth did not present Officer
Moss’s testimony for its truth, but to explain Officer Moss’s course of conduct.
Because the testimony was not hearsay, the PCRA court did not err in finding
Appellant failed to prove that trial counsel was ineffective. See Rega, 933
A.2d at 1017; see also Taylor, 933 A.2d at 1042. Appellant’s first issue does
not merit relief.
In his second issue, Appellant contends trial counsel was ineffective for
failing
to voir dire Juror 11 who was excused to attend to a family medical
emergency but remained through deliberations when this panelist
was unable to perform her role as a fair and impartial juror,
impacting the outcome of the proceedings[.]
Appellant’s Brief at 16.
Immediately prior to closing statements, the following exchange
occurred:
TIPSTAFF: Before I bring the jury down, Juror No. 11 had just
received a phone call about her son being injured with a broken
bone of some kind. She was very nervous, and I said let me
mention it first.
THE COURT: Does she want to leave? Is that what she wants?
TIPSTAFF: She was on the phone trying to figure out what was
going on. She was like standing outside the door, and she seemed
a little upset, so I decided to ask before just bringing them down.
THE COURT: I don’t remember who Juror 11 is.
TIPSTAFF: It was a lady.
THE COURT: A younger woman or –
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TIPSTAFF: Her son is in junior high.
THE COURT: Oh, yes. Okay. I think we have to excuse her.
[THE COMMONWEALTH]: Yes.
[TRIAL COUNSEL]: I’m not going to force her to sit here when
her son’s injured. That’s fine.
THE COURT: Yes. So if this is something just happening right
now –
TIPSTAFF: Yes, Your Honor.
THE COURT: Do you want to voir dire her, or do you just
want to let her go?
[TRIAL COUNSEL]: I trust [the Tipstaff’s] account unless [the
Commonwealth] –
[THE COMMONWEALTH]: No. If she wants to leave, no problem.
***
TIPSTAFF: … We maintained the full jury, Your Honor.
THE COURT: Pardon?
TIPSTAFF: We maintained the full jury.
***
THE COURT: Okay. Just to be clear on the record, [the tipstaff]
did indicate when he came down, but I’m not sure that it is clear
on the record, Juror No. 11, who we all agreed could be excused
if she was having a family emergency, apparently resolved the
issue to her satisfaction and chose to stay instead, so Juror No.
11 was not replaced by an alternate.
N.T., 3/14-15/19, at 154-55, 191-92 (emphasis added).
Again, Appellant fails to discuss the first two prongs of the
ineffectiveness test and does not provide record support for his claim that
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Juror 11 was unfit to deliberate. Appellant’s Brief at 16-19. In addition,
Appellant claims that trial counsel’s failure to voir dire the juror “resulted in
an actual denial of counsel,” id. at 19 (emphasis in original), but cites no
law to support this claim.
The PCRA court explained:
Appellant has not established prejudice. All jurors were instructed
on their duty to carefully consider all of the evidence and not allow
any emotion to influence their decision. (TT 175-176). Jurors are
presumed to have followed the instructions of the trial court,
absent evidence to the contrary. Commonwealth v. Laird, 988
A.2d 618, 629 (Pa. 2010). [The PCRA c]ourt notes that the jury
considered the plethora of evidence in support of conviction and
rendered a verdict which was affirmed by the Superior Court of
Pennsylvania. Appellant has brought forth no evidence that any
juror failed to live up to his or her oath, merely speculation. The
ineffectiveness claim lacks arguable merit and this [c]ourt’s
dismissal of the claim without a hearing is without error.
PCRA Court Opinion, 4/27/22, at 5.
As the record supports the PCRA’s court’s findings, we discern no error.
Busanet, 54 A.3d at 45. Appellant’s second issue does not merit relief.
For the above reasons, the PCRA court did not abuse its discretion in
dismissing Appellant’s PCRA petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2022
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