Commonwealth v. Pierce

287 A.3d 869 (Table)

COMMONWEALTH of Pennsylvania

v.Ramone PIERCE, Appellant

No. 284 WDA 2022

Superior Court of Pennsylvania.

Filed: October 17, 2022

MEMORANDUM BY MURRAY, J.:

Ramone Pierce (Appellant) appeals from the order dismissing, without a hearing, his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 – 9546. We affirm.

In our memorandum on direct appeal, we summarized:

Appellant's convictions arise out of a controlled purchase of narcotics by a confidential informant (CI), which occurred on May 8, 2018 (the "May 8 controlled buy"). On that date, police observed Appellant exit his residence, enter his white Chrysler 300, and drive to a nearby restaurant to conduct the pre-arranged drug transaction. In the parking lot of the restaurant, the CI entered Appellant's car and purchased a plastic bag containing approximately 7 grams of narcotics, with $1,250 in pre-recorded U.S. currency.... The police subsequently apprehended Appellant and charged him with two counts of [possession with intent to deliver (PWID)] and other drug charges.

* * *

At trial, the CI was not called to testify on behalf of the Commonwealth, purportedly out of concern for the CI's safety. The defense attacked the credibility of the CI and his or her account that Appellant had sold narcotics to the CI. The defense emphasized that no other witness implicated Appellant in the May 8 controlled buy, and the police did not recover any narcotics, contraband, or pre-recorded buy money during a subsequent search of Appellant's residence.

The jury found Appellant guilty of two counts of PWID[.] ... The jury acquitted Appellant of the remaining drug charges.

Commonwealth v. Pierce , 2020 WL 1490968, at *1-2 (Pa. Super. Mar. 27, 2020) (unpublished memorandum), appeal denied , 238 A.3d 343 (Pa. 2020).

This Court affirmed the judgment of sentence in part and vacated in part as to one count of PWID. We held, in accordance with our decision in Commonwealth v. Ramsey , 214 A.3d 274 (Pa. Super. 2019), that Appellant's sentence on two counts of PWID was illegal because "the charges pertained to a single compound mixture comprised of two inseparable controlled substances." Pierce , supra at *2. Thus, we vacated one of the sentences for PWID. Id. at *3. Because the sentences were to run concurrently, our decision did not upset the overall sentencing scheme, and we did not remand for resentencing. Id. at *3 n.7. On September 8, 2020, the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. See Pierce , 238 A.3d 343.

Appellant filed a timely pro se PCRA petition on August 2, 2021. The PCRA court appointed counsel, who filed an amended petition on November 13, 2021. On January 10, 2022, the PCRA court issued notice of its intent to dismiss the petition without a hearing, pursuant to Pa.R.Crim.P. 907. On January 31, 2022, Appellant filed a counseled response asserting that his ineffective assistance of counsel claims merited relief, and the PCRA court could not dismiss the petition without holding a hearing. Response, 1/31/22, at 2 (unnumbered). The PCRA court dismissed the petition on February 2, 2022. This timely appeal followed. Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant raises the following issues:

1. Did the PCRA Court err in dismissing the Appellant's [PCRA p]etition without a hearing when trial counsel was ineffective for failing to object to prohibited, prejudicial hearsay testimony related to the [CI's] speculation that he was in danger of assault or homicide when this testimony resulted in the Appellant's convictions?

2. Did the PCRA Court err in dismissing Appellant's [PCRA p]etition without a hearing where trial counsel failed to voir dire Juror 11 who was excused to attend to a family medical emergency but remained through deliberations when this panelist was unable to perform her role as a fair and impartial juror, impacting the outcome of the proceedings?

Appellant's Brief at 5.

We review the PCRA court's denial of relief by "examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error." Commonwealth v. Busanet , 54 A.3d 35, 45 (Pa. 2012). "Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the party who prevailed in the PCRA court proceeding." Id.

We recognize:

[T]he PCRA court has the discretion to 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." Pa.R.Crim.P. 909(B)(2). "[T]o obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Commonwealth v. D'Amato , 856 A.2d 806, 820 (Pa. 2004).

Commonwealth v. Hanible , 30 A.3d 426, 452 (Pa. 2011).

In both issues, Appellant argues ineffectiveness of trial counsel. Our Supreme Court has stated:

It is well-settled that counsel is presumed to have been effective and that the petitioner bears the burden of proving counsel's alleged ineffectiveness. Commonwealth v. Cooper , 941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, a petitioner must establish that: (1) the underlying substantive claim has arguable merit; (2) counsel did not have a reasonable basis for his or her act or omission; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance, "that is, a reasonable probability that but for counsel's act or omission, the outcome of the proceeding would have been different." Id. A PCRA petitioner must address each of these prongs on appeal. See Commonwealth v. Natividad , 938 A.2d 310, 322 (Pa. 2007) (explaining that "appellants continue to bear the burden of pleading and proving each of the Pierce elements on appeal to this Court"). A petitioner's failure to satisfy any prong of this test is fatal to the claim. Cooper , 941 A.2d at 664.

Commonwealth v. Wholaver , 177 A.3d 136, 144 (Pa. 2018) (citations modified). "Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Commonwealth v. Taylor , 933 A.2d 1035, 1042 (Pa. Super. 2007) (citation omitted).

In his first issue, Appellant claims trial counsel was ineffective for failing to object to the testimony of Police Officer Jason Moss regarding the CI's "speculation that he was in danger of assault or homicide when this testimony resulted in Appellant's conviction." Appellant's Brief at 14. We disagree.

The following principles guide our review:

With regard to evidentiary challenges, it is well established that [t]he admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record. Furthermore, if in reaching a conclusion the trial court overrides or misapplies the law, discretion is then abused, and it is the duty of the appellate court to correct the error.

Commonwealth v. Serrano , 61 A.3d 279, 290 (Pa. Super. 2013) (citation and quotation marks omitted).

The Pennsylvania Rules of Evidence provide that "[a] relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible." Pa.R.E. 402.

In addition,

[h]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Pa.R.E. 801(c). Thus, any out of court statement offered not for its truth but to explain the witness's course of conduct is not hearsay. Commonwealth v. Rega , 593 Pa. 659, 933 A.2d 997, 1017 (Pa. 2007) [, cert. denied , 128 S.Ct. 1879 (2008] (citing Commonwealth v. Sneed , 514 Pa. 597, 526 A.2d 749, 754 (Pa. 1987) ).

Commonwealth v. Johnson , 42 A.3d 1017, 1035 (Pa. 2012) (internal quotation marks omitted).

Police Officer Jason Moss was the lead investigator in the May 8 controlled buy. Trial counsel questioned Officer Moss extensively about the police failure to record the telephone conversations between the CI and Appellant; the search of the CI's car; and the details pertaining to the May 8 transaction. See , e.g. , N.T., 3/14-15/19, 85-86; id. at 87-92.

On redirect, the Commonwealth questioned Officer Moss:

Q [The Commonwealth]. Okay. So [trial counsel] asked you why the search of the car was not videotaped. Can you explain that for the folks of the jury why that wasn't videotaped?

A [Officer Moss]. I mean, the focus is getting down there and not being detected. I mean, to get down there, [to] happen to have a camera or a cell phone, whatever, I don't know how good it would be. Truly, I've never seen anybody do it.

Q. Well, you're aware that if something was recorded, that would have to be provided to [Appellant] in discovery?

A. Correct, and then it would show -- it would show the Cl's vehicle, and obviously, then, the Cl would be found out.

Q. And what happens if the Cl gets found out?

A. They're certainly in danger.

Q. Of what?

A. Of assault or homicide.

Id. at 100.¹

While Appellant cites the three-part test from Strickland v. Washington , 466 U.S. 668, 687 (1984), for determining counsel's ineffectiveness, he does not discuss the first two prongs other than to state that they "are easily met." Appellant's Brief at 14. Further, Appellant provides no legal support for his contention that Officer Moss's testimony...