Com. v. Tuggle, I.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
IZEK EUGENE TUGGLE :
: No. 3799 EDA 2016
Appellant
Appeal from the PCRA Order November 30, 2016
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0006944-2011
BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 25, 2017
Appellant Izek Eugene Tuggle appeals pro se from the Order entered in
the Court of Common Pleas of Montgomery County on November 30, 2016,
dismissing, without a hearing, his first petition filed pursuant to the Post
Conviction Relief Act.1 We affirm.
The trial court aptly set forth the facts and procedural history herein as
follows:
FACTUAL HISTORY
In 2011, [appellant] was the target of an investigation into
the distribution of controlled substances and usage of fraudulent
medical prescriptions in Montgomery County. The Montgomery
County Detective's Bureau gathered information about [appellant]
through confidential informants, reports from other police
departments, surveillance, and controlled purchases of controlled
substances. Based upon the probable cause established by this
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1 42 Pa.C.S.A. §§ 9541-9546.
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* Former Justice specially assigned to the Superior Court.
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information, police applied for and received a search warrant for
[Appellant’s] residence. Various items were discovered during
this search, including: Percocet, marijuana, blank prescription
pads, and a handgun. In 2013, Appellant was convicted in a non
-jury trial of person not to possess a firearm, attempting to obtain
a controlled substance by fraud, manufacture of a controlled
substance, possession of marijuana with intent to deliver, and
possession of Percocet with intent to deliver.
During appellant's suppression hearing, Detective Vinter
testified that appellant was immediately taken into custody after
the search of appellant's residence. Detective Vinter testified that
at some point he engaged appellant in a very brief conversation,
during the course of which he asked appellant if he wanted to
cooperate and give a statement. The detective testified that
appellant replied that he did want to make a statement. Detective
Vinter readily acknowledged that he had not informed appellant of
his rights under Miranda prior to asking appellant if he was willing
to cooperate with the police.
Detective Reynolds also testified during appellant's
suppression hearing: specifically, that he took appellant's
statement in an interview room in the Montgomery County
Detective's building. Prior to taking the statement, he read the
appellant his Miranda rights, and appellant then executed a
written waiver of those rights. The waiver on its face explicitly
advised appellant that: he had a right to remain silent and that
anything he said could and would be used against him; that he
had a right to consult a lawyer before being questioned and he
could have a lawyer present during questioning; that if he could
not afford a lawyer, a lawyer would be provided to him without
cost prior to questioning; and that he had the right to refuse any
questions and to stop talking at any time. After appellant executed
the waiver, Detective Reynolds conducted an interview of
appellant, beginning at 11:00 a.m. and ending at 11:50 a.m. The
detective testified that appellant was cooperative, and that at no
point did the conversation become contentious or heated and that
at no point did the appellant ask to stop the interview or ask for a
lawyer. Appellant testified that he was concerned that the
handgun-which he denied owning-might have been used in a
crime that the police would try to "pin it on me" because the
handgun was discovered during a search of his residence.
Appellant testified that this concern "played a major role" in his
decision to waive his Miranda rights and give a statement,
testifying that he thought that "if I give him statements then
maybe he would stop asking me about the firearm or so." On
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cross-examination by the attorney for the Commonwealth,
appellant testified that no threats or promises were made to him
to induce him to make a statement, but he asserted that he
nonetheless felt "intimidated."
PROCEDURAL HISTORY
On August 19th, 2011, appellant was arrested and accused
of the following crimes: use/possession of drug paraphernalia (2
counts); receiving stolen property (14 counts); forgery -
unauthorized act in writing (5 counts); manufacture, delivery, or
possession with intent to manufacture or deliver (6 counts); theft
by unlawful taking (14 counts); possession of firearm; possession
of a controlled substance. Appellant was arraigned on November
16th, 2011. Appellant moved for suppression of evidence on
January 23rd, 2013, which the trial court heard and denied in its
entirety on July 15th, 2013. On July 17th, 2013, following a bench
trial before the Honorable William J. Furber, the appellant was
convicted of: person not to possess firearm, attempting to obtain
a controlled substance, possession of a controlled substance with
intent to distribute, and possession with intent to deliver.
Appellant appealed the trial court's decision to overrule the
appellant's motion for suppression. Specifically, the appellant
appealed the trial court's decision denying appellant's claim that
his waiver of his Miranda rights was not knowing, intelligent, and
voluntary. On [November 24, 2014], the Superior Court affirmed
the trial court's decision and affirmed the appellant's sentence.
The Superior Court reaffirmed the trial court's factual finding that
Detective Vinter's testimony was credible. Appellant appealed the
Superior Court's decision. On March 18th, 2015, the Pennsylvania
Supreme Court denied appellant's petition for allowance of appeal.
On March 22nd, 2016, [a]ppellant filed a petition under
Pennsylvania's PCRA statute. The trial court appointed counsel,
who then submitted a Finley[2] letter on October 17th, 2016.
Court-appointed counsel advised his client that there was no merit
in any of the issues that appellant disputed. The trial court found
no genuine issues of material fact. Following the no-merit letter
and with no evidentiary hearing, the trial court dismissed
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2 The PCRA court is referencing Commonwealth v. Finley, 550 A.2d 213(Pa.Super. 1988) (en banc). Also on that date, counsel filed his Petition to
Withdraw as Counsel.
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appellant's PCRA petition.[3] Thereafter, appellant filed an appeal
of the dismissed PCRA petition. Appellant was directed to file a
concise statement pursuant to Pa.R.A.P. 1925(b); he did so
untimely.[4]
Trial Court Opinion, filed 4/24/17, at 1-4 (internal citations omitted).
In his brief, Appellant presents the following Statement of the Questions
Involved:
1. Whether PCRA counsel erred by failing to investigate the
known witness and leaving the burden of locating and contacting
witness on Appellant?
2. Whether trial/PCRA counsel caused Appellant harmful error
by failing to challenge the “body” of the search warrant or the
authenticity of the signatures on the affidavit/warrants?
3. Whether trial/PCRA counsel erred by failing to investigate
the approval of the search warrant applications by attorney for the
Commonwealth and counsel causing harmful error by not ordering
the Commonwealth to turnover [sic] any and all documents
pursuant to the 60 days after the expiration of the sealed records?
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3 Prior to doing so, the PCRA court properly provided Notice to Appellant
pursuant to Pa.R.Crim.P. 907 on October 27, 2016, and Appellant filed a pro
se response thereto on November 25, 2016.
4 The PCRA court’s order directing Appellant to file a concise statement of
errors complained of on appeal within twenty-one days was filed on December
15, 2016. While Appellant did not file his concise statement until January 10,
2017, affixed thereto is an envelope with a postmark date of January 6, 2017,
which serves as evidence of the date upon which he gave his concise
statement to prison authorities for mailing. “[T]he prisoner mailbox rule
provides that a pro se prisoner's document is deemed filed on the date he
delivers it to prison authorities for mailing.” Commonwealth v. Chambers,
35 A.3d 34, 38 (Pa.Super. 2011) (citation omitted), appeal denied, 616 Pa.
625, 46 A.3d 715 (2012). Therefore, the trial court’s statement Appellant
untimely filed his concise statement is erroneous.
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4. Whether prosecution erred by withholding exculpatory
evidence of the photograph(s)?
5. Whether trial court erred by amending Ct. #8 on the Bills of
Information to a different offense with a higher gravity score?
6. Whether trial court erred by accepting information provided
by non-testifying confidential sources which all alleged
information falls outside of 30 days prior to the search warrant
application?
7. Whether trial court erred by finding Appellant guilty of
possession of a firearm when there was no intent to exercise
dominion and control?
Brief for Appellant at 5 (unnecessary capitalization omitted).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court's determination
and whether the court's decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal denied, 598 Pa. 779,
959 A.2d 319 (2008). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). However, we give no such
deference to the trial court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190, 1194 (Pa.Super 2012).
To be eligible for relief pursuant to the PCRA, an appellant must
establish, inter alia, that his conviction or sentence resulted from one or more
of the enumerated errors or defects found in 42 Pa.C.S.A. § 9543(a)(2).
Appellant must also establish that the issues raised in the PCRA petition have
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not been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). An
allegation of error “is waived if the petitioner could have raised it but failed to
do so before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.” 42 Pa.C.S.A. § 9544(b).
Appellant’s first three issues challenge the effectiveness of trial and/or
PCRA counsel.5 When considering claims of counsel's ineffectiveness, we are
guided by a well-settled standard of review:
[C]ounsel is presumed to have provided effective representation
unless the PCRA petitioner pleads and proves that: (1) the
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his or her conduct; and (3) Appellant was
prejudiced by counsel's action or omission. To demonstrate
prejudice, an appellant must prove that a reasonable probability
of acquittal existed but for the action or omission of trial counsel.
A claim of ineffective assistance of counsel will fail if the petitioner
does not meet any of the three prongs. Further, a PCRA petitioner
must exhibit a concerted effort to develop his ineffectiveness claim
and may not rely on boilerplate allegations of ineffectiveness.
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5 In its Opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court found that
to the extent his allegations pertained to trial counsel’s ineffective assistance,
Appellant’s claims were waived because he could have raised them on direct
appeal “since all of his alleged grievances with his trial counsel happened
during trial.” Trial Court Opinion, filed 4/24/17, at 7. However, this is
incorrect, for claims of ineffective assistance of counsel are properly raised on
collateral review. See Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d
726, 738 (2002) (providing ineffectiveness claims are generally reserved for
collateral review); Commonwealth v. Leverette, 911 A.2d 998, 1004
(Pa.Super. 2006) (explaining ineffectiveness claims may be raised on direct
appeal only if: (1) appellant raised claim(s) in post-sentence motion; (2)
evidentiary hearing was held on claim(s); and (3) record devoted to claim(s)
has been developed). However, this Court is not bound by the rationale of the
trial court and may affirm on any valid basis. Blumenstock v. Gibson, 811
A.2d 1029, 1033 (Pa.Super. 2002), appeal denied, 828 A.2d 349 (Pa. 2013).
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Commonwealth v. Perry, 959 A.2d 932, 936 (Pa.Super. 2008) (citations
and quotation marks omitted). Appellant’s second and third issues present
layered claims of PCRA counsel's ineffectiveness. In this regard, we further
note that:
[l]ayered claims of ineffectiveness are not wholly distinct from the
underlying claims because proof of the underlying claim is an
essential element of the derivative ineffectiveness claim. In
determining a layered claim of ineffectiveness, the critical inquiry
is whether the first attorney that the defendant asserts was
ineffective did, in fact, render ineffective assistance of counsel. If
that attorney was effective, then subsequent counsel cannot be
deemed ineffective for failing to raise the underlying issue.
Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa.Super. 2012) (citations
and quotation marks omitted). In addition,
a petitioner must plead in his PCRA petition that his prior counsel,
whose alleged ineffectiveness is at issue, was ineffective for failing
to raise the claim that counsel who preceded him was ineffective
in taking or omitting some action. In addition, a petitioner must
present argument ... on the three prongs of the Pierce[6] test as
to each relevant layer of representation.
Commonwealth v. Reaves, 592 Pa. 134, 148, 923 A.2d 1119, 1128 (2007)
(citations omitted).
Initially, Appellant asserts PCRA counsel was ineffective for failing to
investigate and call an unnamed witness whom counsel allegedly knew existed
and who was willing to provide a statement. Appellant’s second and third
claims attempt to present layered claims of ineffectiveness. Specifically,
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6 Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
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Appellant maintains both trial and PCRA counsel were ineffective for failing to
challenge the search warrant applications and the representations made
therein. The PCRA court concluded that these claims were both unclear as to
which counsel Appellant was referring and unsubstantiated because the
underlying claims did not have arguable merit. The PCRA court observed that
PCRA counsel investigated and contacted certain witnesses as well as
addressed Appellant’s post-convictions concerns and explained in his letter
attached to his Petition to Withdraw as Counsel why trial counsel’s actions
regarding the search warrant did not rise to the level of ineffectiveness. PCRA
Court Opinion, filed 4/24/17, at 8-10.
Upon our review, we agree with the PCRA court’s assessment and
conclude that Appellant has not developed or substantiated his bald
statements to demonstrate the issues underlying his ineffectiveness claims
have merit. For example, Appellant fails to name the purported witness whose
signed certification PCRA counsel allegedly was insufficient for failing to
obtain. Brief for Appellant at 10. In addition, Appellant presents no argument
to support his conclusory statements that prior counsel caused him “[h]armful
error by not objecting to the authenticity of the signatures on the warrant.”
Instead, he merely reproduces the point at trial at which time the search
warrant and attendant affidavit of probable cause were admitted into
evidence. Id. at 11 (citing N.T. Suppression Hearing, 7/15/13, at 86-87).
Finally, Appellant provides no support for his position that prior counsel were
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ineffective for failing to investigate the propriety of the warrant application
process which he baldly claims resulted in prejudicial prosecutorial
misconduct. Id. at 12.
“Claims of ineffective assistance of counsel are not self-proving [.]”
Commonwealth v. Spotz, 587 Pa. 1, 100, 896 A.2d 1191, 1250 (2006)
(citation omitted). Our Supreme Court has repeatedly refused to consider
bald, undeveloped allegations of ineffectiveness such as these. See
Commonwealth v. Thomas, 560 Pa. 249, 256, 744 A.2d 713, 716 (2000)
(declining to find counsel ineffective where appellant failed to allege with
sufficient specificity facts in support of his claim). Thus, because Appellant has
failed to develop his claims with sufficient specificity, we find them waived,
and there is no basis upon which to upset the PCRA court's finding that
Appellant was not entitled to relief on these issues.
Appellant’s remaining questions presented raise claims of police,
prosecutorial, and judicial misconduct.7 First, Appellant alleges the
prosecution withheld an inventory photograph as is evidenced by the trial
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7 We note that Appellant presents approximately one page of disjointed
argument in support of each of these issues. For this reason alone we could
find them waived for lack of development. Pa.R.A.P. 2119; Commonwealth
v. Steele, 599 Pa. 341, 361, 961 A.2d 786, 797 (2008), abrogated on other
grounds, Pena-Rodriguez v. Colorado, 137 S.Ct. 85, 197 L.Ed. 2d 107(2017) (finding claims waived for lack of development where appellant failed
to discuss them meaningfully, failed to set forth all prongs of ineffectiveness
test, and relied upon boilerplate and rambling allegations).
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testimony of Detective David Holtzman that he photographed three pill bottles
discovered in a kitchen cabinet of Appellant’s home. At that time, defense
counsel indicated to the trial court that such a photograph was not provided
to the defense in discovery. N.T. Trial, 7/16/13, at 64-65.8
As stated previously, to obtain PCRA relief, a petitioner must establish
that the allegation of error has not been waived. 42 Pa.C.S.A. § 9543(a)(3).
Appellant did not present this issue in his direct appeal. Instead, Appellant
raised this issue for the first time on PCRA appeal. An issue is waived if the
petitioner could have raised it but failed to do so on appeal. 42 Pa.C.S.A. §
9544(b). Clearly, Appellant became aware of this purported error at the time
of trial, yet he raised only a single issue on direct appeal. 9 Accordingly,
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8 Notwithstanding the question regarding this particular photograph, it was
clarified that Commonwealth Exhibit No. 16 contained “a number of items
including multiple bottles, as well as plastic bags containing pills.” N.T. Trial,
7/16/13 at 66.
9 On direct Appeal, Appellant raised only the following issue for this Court’s
review:
Whether the trial court erred in denying [Appellant’s] Motion
to Suppress his statements in that such statements were not
preceded by a knowing, intelligent, and voluntary waiver of
Miranda rights as the alleged waiver was preceded by coercive
questioning by Detective James Vinter of [Appellant] relating to
the gun found in the premises and wanting him to cooperate with
law enforcement authorities, which tainted the voluntariness of
the subsequent Miranda waiver?
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Appellant has waived this claim. See 42 Pa.C.S.A. § 9544(b); Pa.R.A.P. 302
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”); Commonwealth v. Washington, 592 Pa. 698, 723,
927 A.2d 586, 601 (2007).
The same is true of Appellant’s fifth and sixth claims wherein he asserts
the trial court erred in permitting the Commonwealth to amend the Bills of
Information prior to the start of trial and in “accepting information” of a non-
testifying witness. Appellant did not present these issues to the trial court at
the proper juncture during trial or in his direct appeal; thus, he has waived
these substantive claims. 42 Pa.C.S.A. § 9544(b); Washington, supra.Appellant’s final issue presents a challenge to the sufficiency of the
evidence to sustain his conviction for possession of a firearm. Straightforward
challenges to the sufficiency and weight of the evidence are not enumerated
errors listed in the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(i–viii). In addition, an
appellant generally may not raise allegations of error in an appeal from the
denial of PCRA relief as if he were presenting them on direct appeal.
Commonwealth v. Price, 876 A.2d 988, 995 (Pa.Super. 2005), appeal
denied, 587 Pa. 706, 897 A.2d 1184 (2006), cert. denied, 549 U.S. 902, 127
S.Ct. 224, 166 L.Ed.2d 179 (2006) (holding petitioner's challenge to
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Commonwealth v. Tuggle, No. 218 EDA 2014, unpublished memorandum
at 6 (Pa.Super. filed November 21, 2014).
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sufficiency of evidence is not cognizable under PCRA); Commonwealth v.
Bell, 706 A.2d 855 (Pa.Super. 1998), appeal denied, 557 Pa. 624, 732 A.2d
611 (1998) (stating sufficiency of evidence claims are not cognizable under
PCRA). Appellant raised a challenge to the sufficiency of the evidence for the
first time on PCRA appeal, although he was aware of the evidence the
Commonwealth had presented to support each of his convictions at the
conclusion of trial and, thus, could have raised this claim on direct appeal.
Therefore, in light of the foregoing, we deem Appellant’s challenge to the
sufficiency of the evidence to be waived. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2017
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