Commonwealth v. Hargroves

258 A.3d 515 (Table)

COMMONWEALTH of Pennsylvania

v.Tyree Calvin HARGROVES, Appellant

No. 1759 EDA 2020

Superior Court of Pennsylvania.

Filed: June 10, 2021

MEMORANDUM BY LAZARUS, J.:

Tyree Calvin Hargroves appeals from the trial court's order denying, after a hearing, his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546. Upon review, we affirm.

The trial court summarized the facts underlying the instant case as follows:

In December 2016, a bench warrant was issued for the Defendant, Tyree Hargroves, for failure to appear at an unrelated proceeding before the Monroe County Court of Common Pleas. Officers with the Pocono Mountain Regional Police Department (PMRPD), who were familiar with the Defendant, attempted to execute on that warrant and went to the area near 9157 Brandywine Drive in Coolbaugh Township, which was known to be the residence of the Defendant's girlfriend. While conducting surveillance, Detective/Corporal Lucas Bray observed the Defendant on the porch of the residence shoveling snow and in the driveway clearing snow from a running vehicle. Detective/Corporal Bray continued surveillance while he awaited assistance from another officer. Before the arrival of additional officers, the Defendant left the residence in the vehicle. Detective/Corporal Bray followed the Defendant and observed him stop the vehicle in front of a residence at 2415 Winding Way in Coolbaugh Township. At that location, Detective/Corporal Bray observed a male, later identified as Joseph Nemeth, walk to the driver's side of the Defendant's vehicle, at which time a hand[-]to[-]hand transaction occurred between Nemeth and the Defendant and Nemeth then returned to his residence. As the Defendant drove away, additional officers finally arrived and a traffic stop was initiated on the Defendant's vehicle a short distance from the Nemeth residence to detain the Defendant on the bench warrant.

At the time of the traffic stop, the Defendant was on a video phone call with his girlfriend. The cell phone that the Defendant was using for that call was seized and later searched pursuant to a search warrant. In addition to the cell phone, the Defendant was in possession of three (3) $100 bills folded together outside his wallet and an additional $117. Officers also observed rubber bands inside the vehicle consistent with what they believed were used to bundle heroin. Utilizing his K-9 partner, Niko, PMRPD Corporal Matt Nero conducted a K-9 sniff of the Defendant's vehicle. K-9 Niko alerted to the driver's side of the vehicle for the scent of drugs. No drugs were ultimately found in the vehicle; rather, only the rubber bands were found in and around the driver's side of the vehicle.

When Detective/Corporal Bray confronted the Defendant about the hand to hand transaction he observed on Winding Way, the Defendant admitted to Detective/Corporal Bray that the $300 came from Nemeth, but alleged it was a loan and denied it was for the sale of drugs. When Detective/Corporal Bray and Corporal Nero questioned Nemeth regarding the hand to hand transaction, Nemeth and his girlfriend admitted the Defendant was their drug dealer and they arranged for him to take the $300 to purchase heroin and cocaine. Detective/Corporal Bray reviewed Nemeth's cellular phone and observed communications consistent with Nemeth's statements. The subject communications happened within a short time before the hand[-]to[-]hand exchange was observed. Following the execution of a search warrant on the Defendant's phone, Detective/Corporal Bray located the same communications Nemeth admitted to and contained on Nemeth's phone.

This evidence was submitted at trial through testimony of Nemeth, Monroe County District Attorney's Office Detective Brian Webbe, Corporal Nero and Detective/Corporal Bray, as well as through Nemeth[s’] and the Defendant's cell phones.

Trial Court Opinion, 1/30/18, at 2-3.

After a two-day jury trial held on October 5-6, 2017, Hargroves was found guilty¹ of attempted possession with intent to deliver heroin,² attempted possession with intent to deliver cocaine,³ criminal conspiracy,⁴ and criminal use of a communication facility.⁵ On November 20, 2017, the court sentenced Hargroves to 24-48 months’ imprisonment for possession (heroin), to be followed by a consecutive sentence of 12-24 months’ incarceration for possession (cocaine), a consecutive sentence of 12-24 months’ incarceration for criminal use of a communication facility, and a concurrent sentence of 12-24 months’ imprisonment for conspiracy—for an aggregate sentence of 48-96 months of imprisonment.⁶ Hargroves filed post-trial motions, which the trial court denied on January 30, 2018. Hargroves filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On February 19, 2019, our Court affirmed Hargroves’ judgment of sentence. See Commonwealth v. Hargroves , 685 EDA 2018 (Pa. Super. filed Feb. 19, 2019) (unpublished memorandum decision).

On October 21, 2019, Hargroves filed a pro se PCRA petition alleging trial counsel's ineffectiveness. On October 28, 2019, the trial court appointed Robert A. Saruman, Esquire, as PCRA counsel; counsel filed an amended petition on January 9, 2020. After several delays and continuances due to complications in transporting Hargroves to court amid the COVID-19 pandemic, a hearing was held on Hargroves’ petition on June 27, 2020. On August 5, 2020, the court denied Hargroves’ petition. He filed a timely appeal and court-ordered Rule 1925(b) statement. Hargroves presents the following issues for our consideration:

(1) Whether the PCRA court erred and abused its discretion by failing to find that trial counsel was ineffective for failing to object to the introduction of an expert in drug trafficking[,] the same individual who was also a fact witness in the same case, thereby increasing the witness’[s] credibility in the eyes of the jury.

(2) Whether the PCRA court erred and abused its discretion by failing to find that trial counsel was ineffective for failing to object to statements in the Commonwealth's closing indicating that failing to convict the defendant would be tantamount to ignoring the opiate epidemic.

Appellant's Brief, at 4.

"In reviewing the denial of PCRA relief, we examine whether the PCRA court's determinations are supported by the record and are free of legal error." Commonwealth v. Natividad , 200 A.3d 11, 25 (Pa. 2019) (citation omitted). See also Commonwealth v. Pier , 182 A.3d 476, 478 (Pa. Super. 2018) (same).

Each of Hargroves’ issues on appeal concerns the effectiveness of his trial counsel.⁷ In his first issue, Hargroves contends that counsel was ineffective for not objecting to the Commonwealth using the affiant as an expert witness in drug distribution "where the underlying fact pattern was that [Hargroves] had merely taken money from a friend to [ ] buy drugs" and where the prosecution's strategy was to impermissibly "paint Hargroves’ action in light of a wider drug conspiracy in the community." Appellant's Brief, at 8.

"A trial court has broad discretion to determine whether evidence is admissible and a trial court's ruling on an evidentiary issue will be reversed only if the court abused its discretion." Commonwealth v. Cook , 676 A.2d 639, 647 (Pa. 1996). "Accordingly, a ruling admitting evidence ‘will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support [as] to be clearly erroneous.’ " Commonwealth v. Minich , 4 A.3d 1063, 1068 (Pa. Super. 2010).

In Commonwealth v. Huggins , 68 A.3d 962 (Pa. Super. 2013), also a drug case, our Court addressed the following issue of first impression: "whether the same witness may be proffered to testify regarding both lay and expert opinion without usurping the jury's fact-finding function." Id. at 966. In Huggins , the trial court permitted a drug agent to offer opinion testimony as both a lay witness and as an expert, where the agent reviewed legally intercepted telephone conversations, deciphered the drug jargon used by the parties to the conversations, and testified regarding the investigation, in general, based upon his personal perceptions. Id. at 968. In addition, during direct examination, the prosecutor asked the agent whether he believed the telephone dialogue was drug-related and whether it was his opinion that the call related to narcotics distribution. Id. at 967-68. Because the trial judge carefully and frequently instructed the jury regarding the dual purposes of the agent's lay and expert testimony and reminded them that they were solely responsible for making credibility determinations, id. at 973, the Court concluded that "the jury was able to differentiate between the two types of evidence presented by [the a]gent ... [where] the trial court employed additional safeguards to ensure that the jury understood its function in evaluating the evidence." Id. at 974.

At Hargroves’ trial, Officer Bray testified as both a fact witness, regarding what he had observed and done during the drug investigation, and as an expert witness in the field of drug distribution. Specifically, as a fact witness, Officer Bray testified to observing Hargrove on the porch of the residence shoveling snow and in the driveway clearing snow from a running vehicle. N.T. Jury Trial, 10/5/17, at 115. Officer Bray also conducted additional surveillance, while waiting for other officers to arrive on the scene, and observed Hargroves drive away from the residence in a vehicle, stop the vehicle in front of another residence, saw another male approach the driver's side of Hargroves’ vehicle and conduct a hand-to-hand transaction with Hargroves, and then watched that individual return to the residence as Hargroves drove away. Id. at 117-19.

Officer Bray also testified as an expert witness, after being certified, see id. at 152, 161, regarding...