Com. v. Smith, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONNIE SMITH :
:
Appellant : No. 777 EDA 2022
Appeal from the PCRA Order Entered February 16, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000103-2016
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 18, 2023
Ronnie Smith appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, dismissing her first petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel has
filed a petition to withdraw, pursuant to Turner/Finley.1 After review, we
affirm the PCRA court’s order and grant counsel’s petition to withdraw.
This Court has previously adopted the following facts:
On October 1, 2015, the Philadelphia police received
information[,] including a phone number[,] that led them to the
1500 block of Woodstock Street. On that date, Officer Jason
Yerges[, of the Philadelphia Police Department,] dialed the phone
number and listened on speakerphone to the conversation
between a confidential informant (CI) and the recipient of the call.
[Officer] Yerges testified that he heard what appeared to be a
female voice speaking on the receiving end of the call. [He] then
gave the [CI] $40[.00] of buy money and directed him to conduct
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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a transaction with the recipient of the phone call at 1551 South
Woodstock Street. [Officer Yerges] observed the [CI] enter the
house and exit approximately 5 minutes later. The [CI] returned
to [Officer] Yerges’ patrol car and handed to him one blue pill
stamped with “A 215.” A seizure analysis indicated that the pill
tested positive[] for oxycodone.
On October 7, 2015[,] at approximately 7:00 p.m., Officer Yerges
employed the same [CI] to replicate the previous transaction.
[Officer] Yerges testified that he redialed the same phone number,
and the [CI] arranged a drug buy with the recipient of the phone
call. [Officer] Yerges then gave the [CI] $40[.00] in buy money
and directed him to go to the 1500 block of South Woodstock
Street. The [CI] returned to [Officer] Yerges and gave him two
green pills stamped “A 214” immediately after the transaction. A
seizure analysis indicated that these pills tested positive[] for
oxycodone.
On October 15, 2015, [at approximately 2:00 p.m.,] Officer
Yerges and other officers returned to the same location with a
search warrant for 1551 South Woodstock Street[. Officer]
Yerges set up surveillance from his patrol car at the corner of
Tasker Street and Woodstock Street (approximately 100 feet from
the target location). [Officer] Yerges testified that the front door
to the house was open and he observed [Smith] seated on a chair
a few feet within the entrance. Approximately fifteen minutes
later, he observed a female walk down the 1500 block of South
Woodstock Street with money in her hand and approach[] the
doorway. [Officer Yerges witnessed Smith] c[o]me to the
doorway [] and exchange[] items for money. [The unidentified
female wore a red coat and blue jeans. Officer Yerges observed
the female put her palm to her mouth before walking away. He
indicated that it was not a swallowing motion.]
On October 16, 2015[,] at approximately 12:30 p.m., Officer
Yerges and other agents set up surveillance at the same location.
Yerges testified he observed a heavyset black male (Leonard
Ware[—Smith’s uncle]) knock on the door to the 1551 Woodstock
Street several times unanswered. He then observed Ware looking
up and down the street and answering a couple [of] phone calls.
Approximately 15 minutes later, he observed [Smith] and two
male passengers arrive in a SUV. [Smith] was carrying a brown
handbag when she exited the vehicle. [Smith], Ware[,] and the
unidentified men then entered the house.
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Shortly thereafter, the police and other agents knocked and
announced their presence before using force to enter the house.
[Smith] was secured in the hallway on the second floor as was a
brown handbag in [] close proximity [to her]. Police recovered
from the brown handbag 6 pill bottles containing various
scheduled drugs, a small clear glass jar containing purple liquid, a
utility bill for 1551 Woodstock Street in [Smith’s] name, a white
cell phone, and cash.2
2 Seizure analysis of the scheduled drugs in the pill bottles
tested positively for oxycodone, Alprazolam, codeine and
acetaminophen, Diazepam, and a non-controlled
prescription item.
Commonwealth v. Smith, 3386 EDA 2017, *1-3 (Pa. Super. filed Mar. 7,
2019) (unpublished memorandum decision), citing Trial Court Opinion,
7/10/18, at 2-4 (footnotes in original, record citations and emphasis omitted).
On September 16, 2016, following a waiver trial, Smith was convicted
of possession with intent to deliver,3 possession of a controlled substance,4
use/possession of drug paraphernalia,5 criminal use of a communication
facility,6 and conspiracy.7,8 On September 14, 2017, Smith was sentenced to
an aggregate term of 6 to 12 years’ incarceration followed by 2 years’
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3 35 P.S. § 780-113(a)(30).
4 Id. at § 780-113(a)(16).
5 Id. at § 780-113(a)(32)
6 18 Pa.C.S.A. § 7512.
7 Id. at § 903.
8 Smith was with charged with, but acquitted of, possession of a firearm
prohibited and possessing an instrument of a crime.
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probation.9 On October 10, 2017, Smith filed a direct appeal to this Court.
We affirmed her judgment of sentence on March 7, 2019. See Smith, supra.
Smith did not seek allowance of appeal in our Supreme Court.
On March 6, 2020, Smith, through Robert Gamburg, Esquire, filed a
PCRA petition, alleging that trial counsel, Paul Hetznecker, Esquire, was
ineffective for: (1) failing to call Leonard Ware, who would have testified that
certain narcotics recovered by the police belonged to him rather than Smith;
and (2) withdrawing a pre-trial omnibus motion that alleged a violation of the
knock-and-announce rule.10 See PCRA Petition, 3/6/2020, at 3-5. The
Commonwealth filed a motion to dismiss Smith’s petition on August 25, 2020.
Counsel filed an amended PCRA petition on October 3, 2020, attaching a
witness certification from Ware and pharmacy documentation showing Ware’s
August 21, 2015 and September 22, 2015 prescriptions for Endocet. See 42
Pa.C.S.A. § 9545(d)(1); Pa.R.Crim.P. 902(A)(15).
On December 2, 2021, an evidentiary hearing was held, during which
the PCRA court heard testimony from trial counsel and Ware. On January 21,
2022, the court issued a notice of its intent to dismiss the petition pursuant
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9 Smith was sentenced on the PWID and criminal use of a communication
facility convictions, but no further penalties were imposed on the remaining
convictions.
10 See Pa.R.Crim.P. 207(A)-(C) (providing that a law enforcement officer
executing a search warrant shall give notice of the officer’s identity and
authority to occupant of the premises specified in the warrant prior to entry,
and shall wait reasonable time for response prior to entry, unless exigent
circumstances apply).
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to Pa.R.Crim.P. 907. The court denied the petition on February 16, 2022.11
Attorney Gamburg filed Smith’s notice of appeal to this Court on March 15,
2022 and he submitted Smith’s Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal on March 24, 2022. Thereafter, Attorney Gamburg
requested to withdraw, which this Court granted on April 28, 2022. The PCRA
court appointed new counsel, Lawrence Bozzelli, Esquire, on June 10, 2022.
Attorney Bozzelli filed a Turner/Finley no-merit letter in lieu of an appellate
brief and a petition to withdraw as counsel.
Prior to reviewing the merits of this appeal, we first determine whether
PCRA counsel has fulfilled the procedural requirements for withdrawing as
counsel. Commonwealth v. Daniels, 947 A.2d 795, 797 (Pa. Super. 2008).
Our Supreme Court has stated that competent counsel must independently
review the record before withdrawal shall be permitted. Turner, supra at
928, citing Pennsylvania v. Finley, 481 U.S. 551, 558 (1987). Independent
review requires counsel to review the case zealously. Commonwealth v.
Mosteller, 633 A.2d 615, 617 (Pa. Super. 1993). Counsel must then submit
a “no-merit” letter or brief on appeal to this Court, listing the issues which the
petitioner wants reviewed, explaining how and why those issues lack merit,
detailing the nature and extent of counsel’s diligent review of the case, and
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11On March 9, 2022, Smith filed a second PCRA petition, which the PCRA court
dismissed on April 19, 2022 due to this pending appeal.
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requesting permission to withdraw. Commonwealth v. Karanicolas, 836
A.2d 940, 947 (Pa. Super. 2003).
Counsel shall also forward to the petitioner a copy of the “no-merit”
letter or brief and counsel’s petition to withdraw, as well as explain to
petitioner his right to proceed pro se or with new counsel. Commonwealth
v. Friend, 896 A.2d 607, 614-15 (Pa. Super. 2006). After it is determined
that counsel has satisfied these technical requirements, this Court must
independently review the record to determine whether the petition is in fact
meritless. Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super.
2012).
Instantly, Attorney Bozzelli has complied with the procedural
requirements. See Turner/Finley Letter, 9/23/22. In particular, PCRA
counsel forwarded his petition to withdraw and a copy of his no-merit
letter/brief to Smith, which details his zealous review of the record and review
of the issues Smith raised in her PCRA petition, why he believes the issues
Smith raises are meritless, and a letter explaining to Smith her right to
proceed pro se or with new counsel. Therefore, we may proceed to review
the following issues Smith raised on appeal:
1. The PCRA court erred by denying [Smith]’s PCRA petition.[12]
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12 This issue is encompassed within issued two and three and need not be
independently reviewed.
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2. The PCRA court erred by finding that trial counsel’s ineffective
failure to pursue a motion to suppress under the “knock-and-
announce” rule did not justify relief.
3. The PCRA court erred by finding that trial counsel’s ineffective
failure to present the testimony of [Ware] at trial did not justify
relief.
Rule 1925(b) Statement, at 1.13
Our standard and scope of review are as follows:
When reviewing the propriety of an order pertaining to PCRA
relief, we consider the record in the light most favorable to the
prevailing party at the PCRA level. This Court is limited to
determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of
legal error. We grant great deference to the PCRA court’s findings
that are supported in the record and will not disturb them unless
they have no support in the certified record. However, we afford
no such deference to the post-conviction court’s legal conclusions.
We thus apply a de novo standard of review to the PCRA court’s
legal conclusions.
Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018) (citations
omitted and formatting altered).
Additionally, “the PCRA court’s credibility determinations, when
supported by the record, are binding on this Court.” Commonwealth v.
Mason, 130 A.3d 601 (Pa. 2015). “When a PCRA hearing is held, and the
PCRA court makes findings of fact, we expect the PCRA court to make
necessary credibility determinations.” Commonwealth v. Johnson, 966
A.2d 523, 539-40 (Pa. 2009) (primary reason for evidentiary hearing is to
allow court to make credibility determinations).
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13The PCRA court, in its Rule 1925(a) opinion, and Attorney Bozzelli, in his
Turner/Finley “no-merit” letter responded to the issues Smith raised in her
Rule 1925(b) statement of errors complained of on appeal.
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Here, Smith raises two claims of trial counsel’s ineffectiveness. One
avenue of relief under the PCRA is to demonstrate “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.” 42 Pa.C.S.A. § 9543(a)(2)(ii). Counsel is presumed
to be effective, and “the burden of demonstrating ineffectiveness rests on
[the] appellant.” Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super.
2010).
To satisfy this burden, an appellant must plead and prove by a
preponderance of the evidence that: (1) [her] underlying claim is
of arguable merit; (2) the particular course of conduct pursued by
counsel did not have some reasonable basis designed to effectuate
[her] interests; and, (3) but for counsel’s ineffectiveness[,] there
is a reasonable probability that the outcome of the challenged
proceeding would have been different. Failure to satisfy any prong
of the test will result in rejection of the appellant’s ineffective
assistance of counsel claim.
Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal
citations omitted).
First, Smith argues that Attorney Hetznecker was ineffective in
withdrawing a pre-trial omnibus motion, which included a suppression motion
based on the officers’ failure to comply with the knock-and-announce rule.
See Amended PCRA Petition, 10/3/20, at 5. Smith alleges that she and Ware
would testify that the officers did not knock and announce themselves as
police, but rather “rammed down the door immediately.” Id. Smith is
afforded no relief.
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Instantly, Ware stated, “the cops bus[t]ed open the door with a f—king
hammer.” N.T. Evidentiary Hearing, 12/2/21, at 8; id. at 17 (Ware testifying
other individuals ran upstairs “when they heard the guy banging on the door
with a ram”); id. at 19 (Ware testifying officers “banged the door open”).
However, Officer Yerges testified that after obtaining a warrant, he and other
officers “knocked and announced at 1551 South Woodstock Street.” N.T.
Waiver Trial, 12/9/16, at 47; id. at 48 (Officer Yerges testifying nobody let
officers into house; “force was used to enter the property.”).
Attorney Hetznecker testified regarding his decision to withdraw the
omnibus pre-trial motion. He withdrew the motion because there was a
chance that hearsay regarding conversations Smith allegedly had with the CI
prior to the execution of the search warrant would be admitted as evidence.
N.T. Evidentiary Hearing, 12/2/21, at 33, 40; id. at 37 (Attorney Hetznecker
testifying “I didn’t [believe] we had a chance of winning the motion to
suppress”); id. (Attorney Hetznecker testifying “I felt there was more damage
that would come out through the hearsay.”).
The PCRA court determined that Ware’s “profane and expletive-laden
testimony [was] neither credible nor persuasive” and, thus, there was no
reasonable probability that the trial court would have granted Smith’s motion
to suppress based on his testimony. Trial Court Opinion, 6/10/22, at 6-7. On
the other hand, the PCRA court found Officer Yegers’ testimony to be credible.
Id. at 6. The PCRA court also credited Attorney Hetznecker’s testimony that
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withdrawing the omnibus pre-trial motion was strategically intended to
prevent the trial court from hearing damaging evidence. Id. at 8.
Indeed, although Ware’s testimony claims the officers did not knock and
announce, the PCRA court determined that he was not credible. See Mason,
supra (credibility determinations supported by record binding on this Court).
Moreover, Attorney Hetznecker had a reasonable basis to withdraw the motion
where he did not think it was meritorious and wanted to prevent evidence
about Smith’s prior drug sales from being admitted at trial. See N.T.
Evidentiary Hearing, 12/2/21, at 37-39.
In light of the foregoing, the PCRA court’s determination that Attorney
Hetznecker was not ineffective in withdrawing the motion to suppress was not
in error. Holt, supra.Second, Smith claims that Attorney Hetnzecker was ineffective for
failing to call Ware as a witness. Specifically, Smith averred that prior to trial,
she communicated to Attorney Hetnzecker that the pills belonged to Ware,
not to her. See PCRA Petition, 10/3/20, at 4. Smith argues that this defense
would have exonerated her. Id. Smith’s claim is meritless.
Ware testified that he was on the way to his mother’s house but stopped
to see Smith, his niece. N.T. Evidentiary Hearing, 12/2/21, at 8. Ware also
testified, “I was prescribed [the] medication[, and the doctor] gave me a f—
king letter and I showed the letter to the damn cop.” Id. at 10. However,
when the prosecutor stated that evidence presented at trial showed that the
pill bottle had the name scratched out, the following exchange occurred:
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Ware: Well, that cop scratched the name out.
Attorney Gamburg: Leonard, stay calm please.
Ware: That punk ass cop.
Attorney Gamburg: Leonard.
Ware: All right. Hey, I don’t have nobody scratch nothing out on
my shit.
The Court: Mr. Ware, your attorney has asked you and I’m asking
you to please stop.
Ware: Let me tell you something . . .
Attorney Gamburg: No, no, sir. The Court is speaking and we’re
in court.
Ware: I’m telling you that . . .
Id. at 20.
Further, Attorney Hetnzecker testified he ultimately decided to forego
calling Ware as a witness because “[he] felt like [the] credibility of that
particular defense was useless.” Id. at 32. Attorney Hetnzecker stated,
It’s unlikely from my understanding that [] Ware would be there
just out of the blue and have his drugs on him, pills on him, just
on a social visit with [] Smith. It looked like it could very easily
be that the [j]udge would not believe that at all, and actually
consider that it was joint possession between the two of them.
***
It would be clearly, I think, an ill-advised attempt to put on sham
evidence frankly.
Id. at 33-34, 36. Attorney Hetnzecker testified regarding the joint possession
argument that would have been available to the prosecution: “[] Ware went
[to Smith’s], obviously, with the idea that the two of them would sell drugs,
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those pills that he had[.]” Id. at 34. Moreover, Attorney Hetnzecker
highlighted that Smith was charged with conspiracy, but it pertained to
another co-defendant, not Ware. Id.
In determining that Attorney Hetnzecker was not ineffective, the PCRA
court found that Ware’s testimony was neither credible nor persuasive and, in
light of Attorney Hetnzecker’s testimony, the court determined that Smith’s
purported defense did not have arguable merit. Trial Court Opinion, supra at
6, 8.
Indeed, although Ware testified that, “[The Endocets] belonged to
[him],” and that he had just picked them up from the pharmacy, id. at 16-17,
the PCRA court determined Ware’s testimony was not credible. Mason,
supra. Additionally, Attorney Hetnzecker explained that foregoing this
defense was a strategic decision and prevented the prosecution from claiming
Smith and Ware had joint possession of the Endocet. Id. at 34, 36.
In light of the foregoing, the PCRA court did not err in its determination
that Attorney Hetnzecker had a reasonable basis to forego calling Ware as a
witness and to forego raising Smith’s purported defense. Diaz, supra; Holt,
supra. Moreover, we have independently reviewed the record and
determined that Smith’s petition is, indeed, meritless. Rykard, supra.Order affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2023
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