Com. v. Maines, J.

J-S26023-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON ALLEN MAINES :
:
Appellant : No. 1541 WDA 2019
Appeal from the PCRA Order Entered September 20, 2019
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0001919-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON MAINES :
:
Appellant : No. 1545 WDA 2019
Appeal from the PCRA Order Entered September 20, 2019
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0000774-2013
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 17, 2020
Jason Maines appeals the denial of his request for relief under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Maines challenges
the Commonwealth’s closing argument raises a Brady1 claim, and argues his
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Brady v. Maryland, 373 U.S. 83 (1963).
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trial counsel was ineffective. We affirm on the basis of the PCRA court’s
opinion. See PCRA Ct. Op., filed Sept. 20, 2019.
In 2014, a jury found Maines guilty of Criminal Attempt – Possession
with Intent to Deliver; Criminal Attempt – Possession of a Controlled
Substance; Terroristic Threats; and Witness Intimidation.2 The jury also found
him guilty at a separate docket of Conspiracy – Robbery; Robbery; Burglary;
Criminal Trespass; and two counts of Aggravated Assault.3 The trial court
imposed an aggregate sentence of 19 to 40 years’ incarceration. We affirmed
the judgment of sentence, and our Supreme Court denied Maines’ petition for
allowance of appeal. See Commonwealth v. Maines, No. 584 MDA 2015,
2016 WL 1734921 (Pa.Super. filed May 2, 2016) (unpublished memorandum),
appeal denied, 160 A.3d 758 (Table) (Pa. filed Oct. 25, 2016).
Maines filed the instant timely PCRA petition in November 2017. The
PCRA court appointed counsel who filed an amended PCRA petition.4 The PCRA
court held a hearing after which it denied the PCRA petition. This timely appeal
followed.
On appeal, Maines raises the following issues:
____________________________________________
2 18 Pa.C.S.A. § 901, 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 901, 35 P.S.
§ 780-113(a)(16); 18 Pa.C.S.A. § 2706(a)(1); and 18 Pa.C.S.A. § 4952(a)(1),
respectively.
318 Pa.C.S.A. §§ 903, 3701(a)(1); 3701(a)(1); 3502(a)(1); 3503(a)(1); and
2702(a)(1), (a)(4), respectively.
4The counsel whom the court initially appointed obtained leave to withdraw,
and the court appointed new counsel who entered his appearance in December
2018.
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1. Did the lower court err by denying PCRA Relief on the
basis of constitutional violations by the Commonwealth
when the Commonwealth:
a. engaged in impermissible inflammatory rhetoric,
impermissible vouching, and impermissible Biblical
references during closing argument?
b. failed to disclose exculpatory evidence in the form of
two discarded prior statements by a witness who
implicated [Maines] in a third statement?
2. Did the lower court err by denying PCRA Relief on the
basis of ineffective assistance of counsel when trial counsel:
a. failed to disclose a conflict of interest in the form of his
own contemporaneous prosecution by the same office
that was prosecuting [Maines]?
b. failed to raise a viable Brady claim concerning the
deprivation of inconsistent witness statements?
c. failed to object to impermissible rhetoric by the
Commonwealth during closing argument?
d. failed to conduct a sufficient investigation?
e. failed to sufficiently cross-examine witnesses,
challenge a photographic array, present evidence
concerning alternative suspects, object to impermissible
evidence, and challenge the identification of a vehicle as
belonging to [Maines]?
3. Did the lower court err by denying relief on the cumulative
effect of multiple errors?
Maines’ Br. at 2-3.
When reviewing the denial of PCRA relief, we determine whether “the
determination of the PCRA court is supported by the evidence of record and is
free of legal error. The PCRA court’s findings will not be disturbed unless there
is no support for the findings in the certified record.” Commonwealth v.
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Larkin, --- A.3d ----, 2020 WL 3869710, at *4 (Pa.Super. 2020) (en banc)
(citation omitted).
Maines claims that the prosecutor made impermissible comments in
closing argument. He argues that the Commonwealth’s closing argument was
improper because it vouched for the credibility of witnesses and included
biblical references. Maines’ Br. at 16, 19. This claim is waived as Maines could
have raised this issue on direct appeal, but failed to do so. See 42 Pa.C.S.A.
§ 9544(b) (“an issue 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”).
Next, Maines alleges that the Commonwealth withheld exculpatory
evidence, in violation of Brady, in the form of two statements from a witness,
Michael Edwards, that a detective allegedly threw in the trash. He waived this
claim as well by not raising it on direct appeal.
Maines also claims that the PCRA court erred in denying his
ineffectiveness claims. He argues that trial counsel was ineffective because he
had a conflict of interest and failed to do numerous things: raise a Brady
violation, object to alleged prosecutorial misconduct, impeach witnesses,
investigate or interview witnesses or potential witnesses, call Edwards as a
witness, challenge various identifications, and allow Maines to testify.
We presume counsel was effective and a petitioner bears the burden of
proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965
(Pa.Super. 2017). A petitioner may overcome the presumption by pleading
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and proving all of the following: “(1) the underlying legal claim has arguable
merit; (2) counsel had no reasonable basis for his or her action or inaction;
and (3) the petitioner suffered prejudice because of counsel’s ineffectiveness.”
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). A petitioner’s
failure to prove any one factor defeats the ineffectiveness claim. See
Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).
The PCRA court denied all of Maines’ ineffectiveness claims. The court
explained that the fact that defense counsel was allegedly being prosecuted
for driving under the influence by the same District Attorney’s office as was
prosecuting Maines did not create a conflict of interest, and even if it did,
Maines had not shown prejudice. See PCRA Ct. Op. at 9. The court next
concluded that Maines’ Brady claim was meritless because he “failed to
establish that the first two statements are materially exculpatory evidence as
he failed to establish either statement contained information that was different
from the third statement.” Id. at 14.
The PCRA court also concluded that counsel was not ineffective for
failing to object to the Commonwealth’s closing argument because Maines
failed to show that he was prejudiced by the Commonwealth’s comments. Id.
at 18, 19-21. It rejected Maines’ claim predicated on a failure to impeach
witnesses because “[a] review of the trial transcripts shows that [counsel]
engaged in vigorous cross-examination of each of these witnesses including
highlighting inconsistencies between their statements and their testimony.”
Id. at 21-22. Regarding Maines’ claim that counsel was ineffective for not
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interviewing witnesses or potential witnesses, the PCRA court found that
Maines had failed to show that the actions of counsel were not reasonable. Id.
at 23. The PCRA court also found that the claim that counsel ought to have
challenged witnesses’ identification of him in a photo array was meritless
because Maines had presented no evidence that counsel had unreasonably
concluded that such a motion would not have been successful. Id. at 25.
The PCRA court also rejected Maines’ claim that counsel was ineffective
for failing to challenge the witnesses’ identification of Maines’ vehicle. The
court explained that he had “presented no evidence that had [counsel]
followed a different strategy, such as calling an expert witness, the outcome
of the trial would have been different,” in view of the evidence against Maines.
Id. at 26. As for Maines’ claim that counsel was ineffective for refusing to
allow him to testify, the court rejected it based on its factual finding that
Maines had agreed with counsel that it was not in his best interest to testify
and had therefore decided not to testify. Id.
For his final claim, Maines alleges that “[t]he lower court erred by
denying relief based on the existence of cumulative error.” Maines’ Br. at 35.
He maintains the cumulative error exists in this case when looking at the
alleged prosecutorial misconduct, the alleged Brady violations, and his claims
of ineffective assistance of counsel. See id. Since each of these claims fails
for lack of merit or of arguable merit, they do not in combination entitle Maines
to relief. See Commonwealth v. Spotz, 84 A.3d 294, 321 n.22 (Pa. 2014)
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(stating that claims that fail due to lack of merit or arguable merit cannot
collectively entitle a petitioner to relief).
After a review of the parties’ briefs, the certified record, and the relevant
law, we find no abuse of discretion or error in the PCRA court’s ruling. We thus
affirm the rejection of Maines’ prosecutorial misconduct and Brady claims, for
the reasons set forth above. We affirm the denial of his ineffectiveness claims
on the basis of the well-reasoned opinion of the Honorable Norman A.
Krumenacker, III, which we adopt and incorporate herein. See PCRA Ct. Op.
at 6-27.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2020
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