Commonwealth v. Palson

COMMONWEALTH OF PENNSYLVANIA v. COREY D. PALSON Appellant

No. 173 MDA 2022

No. J-S39042-22

Superior Court of Pennsylvania

February 22, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered December 28, 2021 In the Court of Common Pleas of Cumberland County Criminal Division at No(s) CP-21-CR-0003256-2015

BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.

MEMORANDUM

NICHOLS, J.

Appellant Corey D. Palson appeals from the order denying his timely first Post Conviction Relief Act^[1] (PCRA) petition. Appellant contends that the Commonwealth failed to disclose a plea agreement offered to one of its key witnesses and claims that trial counsel was ineffective. We affirm.

A previous panel of this Court set forth the underlying facts of this matter as follows:

[Appellant] was charged in connection with three separate deaths. Lorraine Avery died from a drug overdose that was reported to the Middlesex Township Police on May 2, 2015. Michael Sullivan died from a drug overdose that was reported to the Hampden Township Police on May 14, 2015. At the scene of both incidents, police found empty glassine bags stamped "M*O*B." At trial, Avery's sister testified that the evening before Avery was found dead, "Avery had obtained a ride from a friend . . . whom she asked to drive her to meet a person who was going to lend her money, and that first they would be dropping this person off somewhere along the way as part of the shared ride." Trial Court Opinion, 4/17/18, at 5. The person Avery met with was Jesse Blais, [Appellant's] codefendant charged with the deaths of Avery and Sullivan. At trial, Blais testified that he bought the "M*O*B product" from [Appellant] and that [Appellant] was his only source of the "M*O*B product." On June 6, 2016, [Nicole] Tubbs died in a car crash in Silver Spring Township. At the scene of the accident, the police found a pedicure kit in the vehicle. Inside the pedicure kit was a blue glassine bag and a "bundle" of what the officer believed to be heroin, stamped "M*O*B."

Commonwealth v. Palson, 2018 WL 6258905 at *1 (Pa. Super. filed Nov. 30, 2018) (unpublished mem.).

Following trial, the jury convicted Appellant of three counts of drug delivery resulting in death, three counts of possession with intent to deliver heroin, and one count of conspiracy to possess heroin with intent to deliver.^[2]The trial court imposed an aggregate sentence of thirty-one and one-half years to sixty-three years' incarceration.

Appellant filed post-sentence motions^[3] in which he raised multiple claims concerning the validity of the drug delivery resulting in death statute, the weight and sufficiency of the evidence, and the trial court's evidentiary rulings. Appellant subsequently filed a direct appeal in which he challenged the validity of the drug delivery resulting in death statute and the discretionary aspects of his sentence. Ultimately, this Court affirmed Appellant's convictions, but vacated the judgment of sentence and remanded the case for re-sentencing because it was unclear from the record whether the trial court used the correct prior record score. See id. at *4. On remand, the trial court clarified the correct prior record score and subsequently imposed an identical sentence on May 28, 2019. See Sentencing Order, 5/28/19. Appellant did not file post-sentence motions or a direct appeal.

Appellant subsequently retained PCRA counsel, who filed a timely first PCRA petition on Appellant's behalf. See PCRA Pet., 6/26/20. Therein, Appellant claimed that the Commonwealth violated Brady^[4] by withholding information pertaining to a key trial witness's plea agreement and that trial counsel was ineffective for failing to file suppression motions and mounting a "legally invalid defense" that was predicated on jury nullification. See id. at 26, 39.

On March 17, 2021, the PCRA court issued an order dismissing Appellant's Brady claim without a hearing. Therein, the PCRA court explained that Appellant's claim was meritless, as "the trial transcript clearly reflects that at the time of [Appellant's] trial[,] the testimony of Jesse Blais established that he was testifying in exchange for consideration from the Commonwealth." See PCRA Ct. Order, 3/17/21, at 1. Further, the PCRA court concluded that this issue was waived as "the plea deal with Mr. Blais was formalized on the record on April 25, 2017, which makes [Appellant's] Brady argument patently untimely as raised in his June 26, 2020 PCRA petition." Id. at 2. However, the PCRA court stated that it would hold a hearing on Appellant's remaining PCRA claims. Id.

The PCRA court held evidentiary hearings on Appellant's remaining claims on May 27, 2021 and July 8, 2021. During the hearings, the PCRA court heard testimony from the Commonwealth, Appellant's trial counsel, and Appellant. On December 28, 2021, the PCRA court entered an order denying Appellant's PCRA petition.

Appellant filed a timely notice of appeal. Both Appellant and the PCRA court complied with the mandates of Pa.R.A.P. 1925.

Appellant sets forth the following issues for our review:

1. Whether the Commonwealth violated the Brady rule and [Appellant's] state and federal constitutional rights to due process of law by failing to disclose, actively concealing and misleading the jury as to the prosecution's "deal" with its chief witness against [Appellant] who at trial was facing two first degree felony counts of drug delivery resulting in death and adamantly denied any "deal" with the prosecution in exchange for his cooperation and testimony against [Appellant] and yet, months later, the most serious charges were dismissed and he pled nolo contendere to a delivery count for approximately time served in a plea agreement?

2. Whether trial counsel was ineffective for failing to file any suppression motions on behalf of [Appellant], especially a motion to suppress incriminating statements to police?

3. Whether trial counsel was ineffective for pursuing a defense strategy lacking any legal validity and contrary to statutory and case law when he could have based a defense on Commonwealth v. Parker, 327 A.2d 128 (Pa. 1974)?

Appellant's Brief at 1-2 (some formatting altered).

Brady Claim

In his first issue, Appellant contends that the PCRA court erred in dismissing his Brady claim on the basis that Appellant "should have known of the deal given to Jesse Blais because it was a public record as far back as April 25 2017." Appellant's Brief at 10. In support, Appellant argues that "the prosecution has an absolute obligation to reveal all Brady[] material whether in the public record or not." Id. Therefore, Appellant asserts that "[t]he fact that the plea agreement was in the public record does not excuse the prosecution from fail[ing] to disclose the agreement to the defense in time for it to be used." Id. at 11 (citing Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020)).

With respect to the underlying Brady claim, Appellant argues that Mr. Blais' "undisclosed plea agreement was excessively generous" and that "a reasonable jury would regard it as an incentive to testify falsely." Id. at 11. Additionally, Appellant emphasizes that Blais' testimony was "crucial" to the Commonwealth's case. Id. Therefore, Appellant concludes that "there was a 'reasonable probability' of a different outcome if the benefits of the plea agreement had been disclosed to defense counsel[] and the jury." Id. at 12.

The Commonwealth responds that the information about Mr. Blais' plea agreement "was publicly available prior to the filing of [Appellant's] second post-sentence motion and could have been obtained by [Appellant] or counsel by exercising reasonable diligence, the issue is permanently waived." Commonwealth's Brief at 21. Therefore, the Commonwealth argues that the PCRA court "correctly dismissed [Appellant's] claim that the Commonwealth committed a Brady violation as meritless and untimely." Id. At 21-22. Further, the PCRA court notes that Blais testified at trial that he was testifying against Appellant in the hope of receiving leniency from the Commonwealth, such that there was no concealment of information by prosecutors concerning a deal for cooperation which would mislead the jury. Id. at 9, 10.

Our standard of review from the denial of a PCRA petition "is limited to examining whether the PCRA court's determination is supported by the evidence of record and whether it is free of legal error." Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citation omitted). "The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions." Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014) (citation omitted).

To be eligible for relief under the PCRA, a petitioner must plead and prove by a preponderance of the evidence that the claim has not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). Pursuant to Section 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." 42 Pa.C.S. § 9544(b).

In the context of a Brady claim, our Supreme Court has explained:

To succeed on a Brady claim, the defendant must show: (1) evidence was suppressed by the prosecution; (2) the evidence, whether exculpatory or impeaching, was favorable to the defendant; and (3) prejudice resulted. Commonwealth v. Daniels, 104 A.3d 267, 284 (Pa. 2014) [(citation omitted)]. A Brady violation exists only where the suppressed evidence is material to guilt or punishment i.e., where there is a reasonable probability that, had the

...