Commonwealth v. Carter

273 A.3d 1022 (Table)

COMMONWEALTH of Pennsylvania

v.Ralph Justin CARTER, Appellant

No. 22 WDA 2021

Superior Court of Pennsylvania.

February 4, 2022

MEMORANDUM BY COLINS, J.:

Ralph Justin Carter appeals from the order that, following a hearing, dismissed his amended first Post Conviction Relief Act ("PCRA") petition. See 42 Pa.C.S.A. §§ 9541 - 9546. On appeal, Carter presents four interrelated issues premised on the allegation that his trial counsel was ineffective for the way that it handled certain audio recordings taken of Carter while he was in jail. In particular, Carter contends that because trial counsel never had the opportunity to review the alleged audio recordings’ contents, counsel improperly provided Carter with advice that ultimately led to him not testifying on his own behalf. Although we are cognizant of both the Commonwealth's timing as it pertains to the audio recording disclosure and trial counsel's corresponding actions after becoming aware of those recordings, we conclude that Carter has failed to demonstrate ineffective assistance of counsel. Accordingly, we affirm.

The facts underpinning Carter's convictions are not particularly relevant to this present appeal. However, by way of background, drugs, drug paraphernalia, and a firearm were found in Carter's residence. These items were uncovered after the office overseeing Carter's parole had been "tipped off" as to their existence by an informant.

At trial, Carter maintained that the contraband found at his home were not his and that a corresponding confession he provided to police was unreliable. To supplement his defense, Carter originally insisted that he wished to testify on his own behalf despite having prior crimen falsi convictions.

During an afternoon colloquy with the court over that desire to testify, a recess was taken for Carter to discuss with trial counsel his right to call character witnesses. At recess, the Commonwealth informed Carter and trial counsel that it had audio recordings of calls Carter had made while he was inside the jail. The ninety-two minutes of recordings, which the Commonwealth had just received that morning and reviewed during that day's lunch break, included calls made on the eve of and during trial and were asserted by the Commonwealth to contain both incriminating statements as well as language instructing witnesses how to testify.¹

Trial counsel stridently advised Carter as to the inherent problems he faced if he were to testify on his behalf. Counsel believed that, based on the Commonwealth's summary of the recordings’ contents, they would be admitted into evidence notwithstanding any kind of objection. Counsel also was cognizant of Carter's crimen falsi convictions. To counsel, both situations had a high propensity to lead to impeachment.

Following the court's recess, Carter decided to knowingly waive his right to testify on his own behalf after being apprised by counsel and the court of his right to do so. Carter indicated that it would not be in his best interest to testify given that it would introduce the jail recordings to the jury and additionally expose his past criminal record.

Ultimately, a jury convicted Carter of possessing drug paraphernalia, possessing a controlled substance, possessing a controlled substance with the intent to deliver, and possessing a firearm as a person not able to possess.² Resultantly, Carter was sentenced to eight to sixteen years of incarceration, which would subsequently be reduced to seven years, two months to fourteen years, four months of incarceration after pursuing a direct appeal from his judgment of sentence.

Following his direct appeal, Carter filed a pro se PCRA petition. The court appointed PCRA counsel who thereafter found that Carter raised no non-frivolous claims in his petition. Correspondingly, PCRA counsel filed a no-merit letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc ), wherein counsel requested permission from the court to withdraw. The court noticed its intent to dismiss Carter's petition without a hearing, giving him twenty days to respond. After that time had elapsed without a response, the court dismissed his petition, deeming it to be patently frivolous.

Carter then filed a pro se notice of appeal seeking redress in this Court, asserting that he never received notice of the court's intent to dismiss his petition without a hearing. Moreover, Carter claimed that he did not timely receive PCRA counsel's no-merit letter. The Commonwealth conceded that Carter had not received the court's notice of its intent to dismiss his petition. Predicated on this concession, this Court vacated the PCRA court's order so that a new notice of intent to dismiss could be issued. This new notice gave Carter twenty days to raise any challenges to his counsel's no-merit letter.

After that, Carter filed a pro se amendment to his PCRA petition, which raised several claims of ineffective assistance of counsel. Carter's petition was ultimately dismissed without a hearing. Following dismissal, Carter filed another pro se notice of appeal, which alleged that the PCRA court erred by not conducting a hearing on his trial counsel's handling of the jail recordings. This Court ascertained that, given the existence of unresolved questions of fact related to those recordings, the PCRA abused its discretion by dismissing Carter's petition without a hearing. See Commonwealth v. Carter , 1105 WDA 2019 (Pa. Super., May 27, 2019) (unpublished memorandum). We consequently ordered the appointment of counsel on Carter's behalf to conduct an evidentiary hearing on his ineffectiveness claims.

New PCRA counsel, among other things, filed a motion in limine seeking to preclude the Commonwealth from offering the jail recordings at the evidentiary hearing. This motion was denied. In the end, after the court received testimony from Carter, Carter's trial counsel, and the Commonwealth, it dismissed his petition, finding no merit to any of his ineffectiveness contentions.

After this disposition, Carter filed a notice of appeal. The relevant parties have complied with their respective obligations under Pennsylvania Rule of Appellate Procedure 1925, and as such, this appeal is ripe for review.

On appeal, Carter presents four separate questions for review. However, all four questions fall under the auspice of claiming that his trial counsel was ineffective. Distilled down, Carter claims that counsel was ineffective given that, without having reviewed the tapes: (1) it provided advice leading to Carter waiving his right to testify; (2) it determined that the tapes would be admissible; and (3) it did not object to the Commonwealth's late disclosure of evidence. See Appellant's Brief, at 5-6. In addition, Carter avers that the PCRA court erred in denying his motion in limine because: (1) the content of the tapes was prejudicial; and (2) the specific language used in those tapes was not known to counsel when it provided Carter with advice. See id ., at 6.

Preliminarily, we note that this Court reviews the denial of a PCRA petition based on whether the record supports the PCRA court's findings. See Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014). In addition, we ascertain whether such a denial is free from legal error. See id . If the record supports the PCRA court's findings, this Court is very deferential to the lower court's ultimate determination. See Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa. Super. 2007). Legal conclusions, however, are not treated with that same corresponding deference. See Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012).

As to a claim asserting ineffective assistance of counsel, we are guided by a well-settled set of precepts:

We presume counsel's effectiveness, and an appellant bears the burden of proving otherwise. To establish ineffectiveness of counsel, a PCRA petitioner must plead and prove: his underlying legal claim has arguable merit; counsel's actions lacked any reasonable basis; and counsel's actions prejudiced him. Failure to satisfy any prong of the ineffectiveness test requires dismissal of the claim. Arguable merit exists when the factual statements are accurate and could establish cause for relief. Whether the facts rise to the level of arguable merit is a legal determination.

Commonwealth v. Urwin , 219 A.3d 167, 172 (Pa. Super. 2019) (internal citations and quotation marks omitted). As to what constitutes "reasonable basis," "[t]he test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success." Commonwealth v. Stewart , 84 A.3d 701, 707 (Pa. Super. 2013) (citation omitted). As such, "[c]ounsel's decisions will be considered reasonable if they effectuated his client's interest." Id . (citation omitted).

Carter asserts that "the crux of this appeal is whether [he] knowingly and intelligently waived his right to testify on his own behalf during his jury trial." Appellant's Brief, at 19. "The decision of whether or not to testify on one's own behalf is ultimately to be made by the defendant after full consultation with counsel." Commonwealth v. Nieves , 746 A.2d 1102, 1104 (Pa. 2000). In this specific domain, "the appropriate standard for assessing whether a defendant was prejudiced by trial counsel's ineffectiveness regarding the waiver of his right to testify is whether the result of the waiver proceeding would have been different absent counsel's ineffectiveness[.]" Commonwealth v. Walker , 110 A.3d 1000, 1005 (Pa. Super. 2015) (emphasis in original) (contrasting this assessment with the much different consideration of "whether the outcome of the trial itself would have been more favorable had the defendant taken the stand[ ]"). However, Walker also reinforces the broader...