Commonwealth v. Jackson

258 A.3d 558 (Table)

COMMONWEALTH of Pennsylvania

v.Ameer JACKSON, Appellant

No. 1340 EDA 2020

Superior Court of Pennsylvania.

Filed June 29, 2021

MEMORANDUM BY PANELLA, P.J.:

Ameer Jackson appeals from the order entered in the Philadelphia County Court of Common Pleas on July 7, 2020, dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541 - 9546, without a hearing. Jackson argues the PCRA court erred in declining to hold an evidentiary hearing on his claims of ineffective assistance of trial counsel. After careful review, we affirm.

We previously summarized the factual and procedural history on direct appeal:

On January 7, 2016, Officer Charles Kapusniak of the Narcotics Field Unit was conducting surveillance on controlled drug buys with the use of a confidential informant (CI). On that day, Officer Kapusniak, along with members of his "squad[,]" gave the CI $20 prerecorded buy money and sent the CI to the intersection of 2200 Fitzwater where Officer Kapusniak had set up surveillance. There, Officer Kapusniak observed the CI approach [Jackson],[ ] engage him in a brief conversation and then hand[ ] him [the] prerecorded buy money in exchange for small items. The CI also received a phone number. Following this exchange, the CI met with another police officer, Officer Burada, and the CI gave him red packets, each containing an off-white chunky substance of alleged crack cocaine.

On January 15, 2016, a call was made to the number the CI was given and the male voice on the other end instructed the CI to meet at a predetermined location. Officer Kapusniak went to the designated area and set up surveillance. There, he observed [Jackson] exit a home, meet with the CI, and accept US currency and prerecorded buy money in exchange for [ ] small red items. These two red packets contained an off-white chunky substance of alleged crack cocaine.

On March 22, 2016, the same CI was utilized once again. The CI, in the presence of Officer Kapusniak, dialed the phone number previously given, and had a drug[-]related conversation with a male voice in reference to purchasing crack cocaine. Once again, the CI was given a designated location to meet, and Officer Kapusniak set up surveillance. There, Officer Kapusniak observed the CI approach [Jackson]. After a brief conversation, the CI handed [Jackson] the prerecorded buy money in exchange for small items, which [Jackson] removed from the front of his pants. The CI returned back to [the police] and turned over two green[-]tinted packets each containing an off-white chunky substance, allege[dly] crack cocaine. A fourth controlled buy occurred on March 30, 2016 using a different CI. Similarly, in exchange for prerecorded buy money, the CI received two green tinted packets. On that day, and each of the aforementioned days, Officer Kapusniak performed a [Narcotics Field Drug Test Kit] on the substance, which tested positive for cocaine base.

On April 1, 2016, Officer Kapusniak and members of his squad executed [a] search warrant at a home on Kemball Street. Officer Burada arrested [Jackson], who was sleeping in the bedroom. In that bedroom, officers recovered a cell phone, which rang when the number the CI had provided to Officer Kapusniak was dialed, a scale, and three baggies, which contained blue, yellow[,] and green tinted packets, all new [and] unused.[ ]

Following his arrest, [Jackson] was charged with the aforementioned crimes. After an on-the-record colloquy, [Jackson] proceeded to a non-jury trial. After testimony from Officer Kapusniak and [Jackson],[ ] the trial court found [Jackson] guilty on all counts charged. That same day, [Jackson] was sentenced to three years' probation. No post-sentence motions were filed.

Commonwealth v. Jackson, 84 EDA 2017, at 1-4 (Pa. Super. filed 10/31/2018) (citations and internal quotation marks omitted).

After filing a timely notice of appeal, trial counsel sought and was granted leave to withdraw as counsel. Appellate counsel was appointed and later filed an Anders¹ brief and a petition to withdraw. After review, we agreed there were no non-frivolous issues preserved for appeal, and affirmed Jackson's judgment of sentence. See Commonwealth v. Jackson, 84 EDA 2017 (Pa. Super. filed 10/31/2018) (unpublished memorandum). While his direct appeal was pending in this Court, Jackson's probation was revoked and he was re-sentenced to three additional years of probation. Jackson did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

On January 4, 2019, Jackson filed a pro se PCRA petition arguing his constitutional rights were violated because he was not given the right to face his accuser, specifically the CI.² Counsel was appointed and filed an amended petition, raising multiple claims of ineffective assistance of trial counsel. In response, the Commonwealth filed a motion to dismiss, arguing that Jackson's claims lacked merit.

The PCRA court subsequently issued notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. After receiving no response from Jackson, the PCRA court issued an order dismissing the petition. This appeal followed.

On appeal, Jackson presents two questions for our review:

1. Whether the [c]ourt erred in denying [Jackson]'s PCRA petition without an evidentiary hearing on the issues raised in the amended PCRA petition.

2. Whether the court erred in not granting relief on the PCRA petition alleging trial counsel was ineffective.

Appellant's Brief, at 8.

"The standard of review for an order denying post-conviction relief is limited to whether the record supports the PCRA court's determination, and whether that decision 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. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation omitted).

Generally, "[t]he PCRA court may dismiss a petition without a hearing when the court is satisfied that there are no genuine issues concerning any material fact, the defendant is not entitled to post conviction collateral relief, and no legitimate purpose would be served by any further proceedings." Commonwealth v. Johnson, 139 A.3d 1257, 1273 (Pa. 2016) (citation and internal quotation mark omitted). When the PCRA court denies a petition without an evidentiary hearing, we "examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing." Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004) (citation omitted).

In his amended PCRA petition, Jackson alleged that trial counsel was ineffective for failing to (1) file a motion to suppress evidence found during Jackson's arrest, (2) file a motion to reveal the identity of the CI, (3) file a motion that the verdict was against the weight of the evidence, and (4) call alibi witnesses to testify. His amended petition included a memorandum of law in support of his petition. See Amended PCRA Petition, 8/12/2019, at 5-21. Further, Jackson attached a letter from himself, and three affidavits from his mother, sister, and girlfriend, all of whom he claims are alibi witnesses. See id. at Appendix A.

All four of Jackson's claims raised allegations of ineffectiveness of counsel. As such, he was required to plead and prove:

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 ... Appellant must demonstrate: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005) (citations omitted).

Moreover, "[w]e presume counsel is effective and place upon Appellant the burden of proving otherwise." Commonwealth v. Springer, 961 A.2d 1262, 1267-1268 (Pa. Super. 2008) (citation omitted). This Court will grant relief only if an appellant satisfies each of the three prongs necessary to prove counsel ineffective. See Commonwealth v. Natividad, 938 A.2d 310, 321-22 (Pa. 2007) (citation omitted). Thus, we may deny any ineffectiveness claim if "the petitioner's evidence fails to meet a single one of these prongs." Id. at 321 (citation omitted).

To avoid such a result, counsel must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. However, [t]he controlling factor in determining whether a petition may be dismissed without a hearing is the status of the substantive assertions in the petition.

Commonwealth v. Stanley, 632 A.2d 871, 872 (Pa. 1993) (internal citations and quotation marks omitted). Jackson was required to set forth an offer of facts supporting his claims in his petition, as an evidentiary hearing "is not meant to function as a fishing expedition for any possible evidence that may support some speculative claim of ineffectiveness." Commonwealth v. Jones, 811 A.2d 994, 1003 n. 8 (Pa. 2002) (citation omitted).

The first claim in Jackson's petition was that trial counsel was ineffective for failing to file a motion to suppress evidence found during Jackson's arrest. He asserts that no warrant was presented at trial and argues that no warrant existed. In the alternative, he asserts that even if there was a warrant, the entry into the house was illegal. Specifically, he claims "the police never knocked to announce their presence, nor did they furnish a warrant upon entry; instead they simply kicked the door...