HomeMy WebLinkAboutCP-21-CR-0002532-2010
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. :
:
JEFFREY C. PORTER :
OTN: L580078-2 : CP-21-CR-2532-2010
IN RE: DEFENDANT’S AMENDED PETITION FOR POST CONVICTION
RELIEF PURSUANT TO THE POST CONVICTION RELIEF ACT
BEFORE PECK, J.
OPINION and ORDER OF COURT
PECK, J., January 22, 2013
In this criminal case, in a jury trial held before the Honorable Senior Judge Wesley
1
Oler, Jr., a jury found Defendant not guilty of Manufacture of a Schedule I Controlled
Substance, guilty of Possession with Intent to Deliver a Schedule II Controlled
Substance, an ungraded felony, guilty of Unlawful Possession of a Schedule II Controlled
Substance, an ungraded misdemeanor, and guilty of Unlawful Possession of Drug
2
Paraphernalia, an ungraded misdemeanor. Judge Oler sentenced the Defendant to an
aggregate period of imprisonment in a state prison of not less than 5 years nor more than
34
10 years. The issue raised in Defendant’s petition for post conviction collateral relief is
whether counsel was ineffective for declining to take action that he, in his professional
opinion, deemed meritless. For the reasons stated herein, Defendant’s request for post
conviction collateral relief will be denied.
At a hearing on this petition, Defendant raised the following three issues as his
grounds for relief:
1.trial counsel was ineffective by failing to preserve Petitioner’s appeal rights;
2.trial counsel was ineffective by failing to file a post-sentence motion; and
1
He was not yet a Senior Judge at the time of the trial.
2
Order of Court, April 28, 2011.
3
Order of Court, May 31, 2011. This sentence was imposed pursuant to a mandatory minimum sentence
on the possession with intent to deliver.
4
Pennsylvania Rules of Criminal Procedure, Rule 908.
Post Conviction Relief Act (P.C.R.A.),
3.trial counsel was ineffective by failing to file an omnibus pretrial motion
seeking suppression of evidence gained as a result of a search warrant and
5
subsequent search of defendant’s personal belongings.
Karl Rominger, Esquire, represented the Defendant in the initial phases of the
case. Attorney Rominger applied for and was granted leave to withdraw as counsel upon
6
the entry of appearance of alternate counsel. Gary Kelley, Esquire, then entered his
7
appearance prior to Defendant’s formal arraignment. Defendant continued his pre-trial
8
conference, and, thereafter, Attorney Kelly petitioned the court to withdraw as counsel.
The court, over the Commonwealth’s objection, found that the petition to withdraw could
not be granted without prejudicing the Defendant, denied the petition, and set the case for
9
trial. Defendant was tried, convicted and sentenced.
Stephen Maitland, Esquire, entered his appearance and filed a post sentence
motion which raised inter alia the following two issues: 1) that Defendant’s trial
counsel’s representation was ineffective because he did not attempt to suppress the
evidence against him, and 2) that there was insufficient evidence presented at trial to
10
connect him with any contraband to sustain the verdict. The Commonwealth filed an
answer thereto and the Defendant filed a reply to the Commonwealth’s answer. The
Honorable Judge Oler issued an order declining to consider Defendant’s ineffective
assistance of trial counsel claims at that stage of the proceedings, without prejudice to
Defendant’s right to raise the claims in the form of a PCRA petition, ordered briefs and
scheduled oral argument on the balance of the issues contained in the post sentence
11
motion. Attorney Maitland subsequently filed a motion to withdraw the post sentence
5
Amended Petition for Post Conviction Relief Pursuant to the PCRA, July 12, 2012; Transcript of
Proceedings from Post Conviction Relief Act hearing, hereinafter “PCRA”, p.4-6.
6
Order of Court, January 18, 2011.
7
Order of court, January 20, 2011.
8
Orders of Court, March 3, 2011 and March 30, 2011.
9
Order of Court, April 19, 2011. The court noted in its order that the Defendant was to maintain contact
with his attorney so that they could prepare for trial.
10
Entry of Appearance and Post Sentence Motion, June 10, 2011.
11
Order of Court, July 1, 2011.
2
motion stating that, after review and analysis, Attorney Maitland believed that the
12
defendant’s claims would best be pursued through a PCRA petition. Judge Oler granted
Defendant’s motion to withdraw the post sentence motion and granted leave to the
13
Defendant to pursue relief under the PCRA.
Attorney Maitland withdrew as counsel and Defendant was again granted leave to
14
pursue relief through a PCRA petition with court appointed counsel. Defendant filed a
15
pro se PCRA petition. This court in the meantime appointed counsel, Jacob Jividen,
Esquire, who filed an Amended Petition under the PCRA which subsumed all of the
16
issues contained in Defendant’s original pro se PCRA petition. Defendant did not file a
direct appeal to the Superior Court.
STATEMENT OF FACTS
As a result of an incident occurring on August 25, 2010, Defendant Jeffrey
Christopher Porter was charged with Unlawful Delivery, Manufacture, Possession with
Intent to Deliver a Schedule II Controlled Substance-Cocaine, Unlawful Possession of a
Schedule II Controlled Substance-Cocaine and Unlawful Possession of Drug
17
Paraphernalia. At the jury trial, the Commonwealth presented the testimony of Hubert
Gilroy, Esquire, who is a partner in a law firm located on the bottom floor of the building
where the cocaine at issue was found, Trooper James Borza of the Pennsylvania State
Police (hereinafter, “PSP”), who was certified as an expert in the street delivery of
cocaine and was present during the execution of the search warrant, Corporal Taylor of
PSP, also present during the search warrant, and John Evans, a Drug Unit supervisor with
18
PSP forensics.
12
Id.
13
Order of Court, August 18, 2011.
14
Motion to Withdraw Appearance, December 30, 2011. Order of Court, February 17, 2012.
15
Amended Petition under the PCRA, March 20, 2012.
16
Amended Petition for Post Conviction Relief Pursuant to the PCRA Act, July 12, 2012.
17
Information, filed November 3, 2010.
18
Notes of Trial Transcript (hereinafter N.T. __) 10-111.
3
Trooper Borza testified that he applied for and was granted a search warrant to
search for cocaine or any other controlled substances, drug paraphernalia, and any
records or other evidence related to the sale of controlled substances in any area that
could conceal such contraband at 16 East High Street, Apartment #D, Carlisle, an
apartment later determined to be where the Defendant was staying some of the time with
19
his girlfriend. In his affidavit of probable cause for the search warrant, Trooper Borza
stated that he was an experienced trooper in all aspects of investigating drug traffic and
20
had participated in over 100 drug investigations. He stated that on August 19, 2010 and
again on August 24, 2010, he made purchases of cocaine from an unwitting subject who
went into a residence at 16 East High Street and returned from the same address each
21
time with cocaine for Trooper Borza to purchase.
Trooper Borza further explained in his search warrant that unwitting subjects have
been proven to be reliable since he or she does not know that they are being used by a
police officer to purchase the drugs and obtain information as to who is the seller above
22
the unwitting subject. The unwitting told Trooper Borza on both occasions that the
place he got the cocaine from at 16 East High Street was the only apartment being used
23
(by tenants) in that building at the time. Trooper Borza said that, on the first buy, the
24
unwitting also said he used to live in the same building but had since moved out.
Trooper Borza said that, on the second buy, the unwitting also said that “his guy (who he
purchased cocaine from) was in the apartment fighting with his girlfriend” and that the
25
noise was not an issue since they were the only ones renting an apartment there.
19
N.T. 26-27; Application for Search Warrant and Affidavit of Probable Cause, issued August 25, 2010;
entered as Commonwealth’s Exhibit 20 at trial and as Commonwealth’s Exhibit 1 during the PCRA
hearing.
20
Id.
21
Id.
22
Id.
23
Id.
24
Id.
25
Id.
4
Trooper Borza said in his search warrant affidavit that the drugs he bought each
time tested positive for the presence of cocaine, that he verified with the Carlisle
Postmaster that there was only one apartment in that building that was receiving mail,
that the mail was being sent to someone there named Jaleesa Inman, and that the
aforesaid information confirmed the information given to him by the unwitting that his
26
supplier was located in the only occupied apartment at that building address. He further
27
said that the subjects in that apartment were not authorized to possess cocaine. In his
affidavit, Trooper Borza requested that his search include any persons in the property to
be searched, because weapons and controlled substances are often concealed on the
28
person who sells drugs.
Present during the execution of the search warrant were two adult males, a female
2930
and a child. The Defendant was in a back bedroom preparing to take a shower. He
3132
didn’t have any clothes on. Pants were on the floor in the bathroom. Trooper Borza
testified that the Defendant asked to put back on his pants whereupon Trooper Borza
looked in the pants before returning them to make sure they didn’t contain any
33
weapons. In the Defendant’s pants, Trooper Borza found $159, an identification card of
the Defendant, two ripped plastic bags and another plastic bag which contained suspected
34
cocaine.
35
Trooper Borza read the Defendant his Miranda rights. The Defendant said he
stayed at the residence with his girlfriend and that any cocaine the troopers found in the
26
Id.
27
Id.
28
Id.
29
N.T. 29.
30
N.T. 29-30.
31
N.T. 30.
32
N.T. 29-30.
33
N.T. 30.
34
N.T. 34.
35
N.T. 35-37.
5
36
residence belonged to the Defendant. The troopers then found nineteen bags of
37
packaged cocaine in a Gerber baby can in the kitchen. The Defendant admitted the
38
nineteen bags of cocaine were his. They also found a grinder used to grind marijuana,
mail showing the Defendant received mail at the address where they were conducting the
search, an electronic scale, an owe sheet, a bottle of Inosital that was used to break up
39
cocaine to make it have more weight and a metal spoon with residue on it. All of these
40
items were presented as evidence at trial. Based on the above, Trooper Borza opined
that the nineteen baggies of cocaine were used for the sale of cocaine, not for personal
41
use. Trooper Borza testified that the Defendant told him that the Troopers had “just
missed the big money” because they took it out of the residence prior to the troopers’
42
arrival and that the little bit of cocaine the troopers would find “ain’t shit.”
Corporal Taylor of PSP also testified that he was present during the search warrant
43
and found the 19 bags of cocaine. Corporal Taylor spoke with the Defendant at the
44
police station after the execution of the search warrant. The Defendant said that he had
already been Mirandized by Trooper Borza and provided a written statement that none of
the drugs or drug paraphernalia found by the troopers belonged to his girlfriend, Jaleesa
45
Inman.
Hubert Gilroy, Esquire testified that he is a partial owner of the building at 16 East
46
High Street and that he handled any evictions of the building. He said that there was
36
N.T. 35-37.
37
N.T. 38.
38
N.T. 42.
39
N.T. 42-43.
40
N.T. 31-55.
41
N.T. 54-55.
42
N.T. 37-38, 134.
43
N.T. 104-106.
44
N.T. 107.
45
N.T. 107-108.
46
N.T. 12.
6
only one apartment that had a tenant in the building, located in apartment D, after July
47
31, 2010. He also said that fact was true on August 25, 2010, the date of the execution
48
of the search warrant, and that the tenant’s name was Jaleesa Inman.
The Commonwealth further presented the expert testimony of John Evans, a Drug
Unit Supervisor and forensic chemist at the Pennsylvania State Police Harrisburg
49
Regional Laboratory. He testified to a reasonable degree of scientific certainty that the
50
nineteen baggies of cocaine contained 16.5 grams of identified cocaine.
Defendant testified on his behalf at trial and presented additional testimony from
Jaleesa Inman, the mother of his child whom he often stayed with at the searched
residence, and Anthony Cotton, who was apparently testifying as the unwitting individual
51
in question from the search warrant. The Defendant testified that he spent a lot of time
52
at the address where the search warrant was executed. He admitted that it was his
5354
girlfriend’s apartment. He said he knew Tyrone Cotton, the unwitting individual, and
that Tyrone Cotton used to live in the building but that he had not visited the Defendant
55
on the days when Trooper Borza bought cocaine. He further testified that the cocaine
found in his house was his, but that he purchased it for his own personal use and that it
56
was already packaged in small baggies when he bought it. He said the money found in
47
N.T. 13.
48
N.T. 13.
49
N.T. 90-92.
50
N.T. 99-100.
51
N.T. 113-153; also see footnote 51 .
52
N.T. 129.
53
N.T. 147.
54
N.T. 149-153. In his testimony the Defendant said he knew a Tyrone Cotton from the building and that
he never saw Tyrone Cotton on any day in question, but then presented a witness by the name of Anthony
Cotton to apparently try to corroborate the Defendant’s testimony on this point and thereby challenge
Trooper Borza’s credibility on the purchases he made from an unwitting individual that served as part of
the basis for the search warrant.
55
N.T. 129-130.
56
N.T. 132-133, 139.
7
57
his pants pocket was for rent and that the two empty baggies found in his pants used to
58
have cocaine in it that he used for his own personal use. He admitted he put the scale
59
next to where the 19 baggies of cocaine were located. He admitted he told the Troopers
that the cocaine was his and that he told the troopers they had just missed the big money
60
because he had taken it out of the residence before the troopers arrived. He admitted he
61
told the troopers that the little bit of cocaine that the troopers found “ain’t shit.”
Jaleesa Inman testified that she was home each day when Trooper Borza bought
62
cocaine from their building and that no one ever came to her residence on those days.
She said the Inositol found was a digestive agent used by her to lose weight and the
63
digital scale was used by her to measure out the Inositol. Anthony Cotton testified that
he did in fact go into the same building where the Defendant was staying on the days that
64
Trooper Borza bought cocaine, but that he never went into the Defendant’s residence.
Following deliberations, the jury found Defendant not guilty of count 1A,
65
Manufacture of a Schedule II Controlled Substance, guilty of count 1B, Possession with
Intent to Deliver a Schedule II Controlled Substance, guilty of count 2, Simple
Possession of a Schedule II Controlled Substance and guilty of count 3, Possession of
6667
Drug Paraphernalia. On May 31, 2011, he was sentenced as indicated above.
57
N.T. 134.
58
N.T. 135.
59
N.T. 142.
60
N.T. 143-144. The Defendant said he made the latter statement “out of anger”.
61
N.T. 144.
62
N.T. 115-117.
63
N.T. 117-121.
64
N.T. 151-153.
65
N.T. 159-163, 169. Although the Information filed contained only one count of unlawful delivery,
manufacture or possession with intent to deliver a schedule II controlled substance-cocaine, the
Honorable Senior Judge Oler split the offense on two verdict slips for the jury, and instructed them
accordingly, into count 1A-manufacture and count 1B-possession with intent to deliver.
66
N.T. 178-180.
67
Order of Court, May 31, 2011.
8
As stated above, Attorney Maitland, filed, but then withdrew, a post-sentence
motion. He did not file a direct appeal to the Superior Court. Defendant subsequently
filed an Amended Petition for Post Conviction Collateral Relief sub judice, seeking a new
trial, release from custody and discharge, that his sentence be corrected, that his appeal
rights be reinstated and that his post-sentence motion rights be reinstated based on
68
ineffective assistance of counsel.
A hearing on the petition was held on August 31, 2012. At the hearing, the
69
Defendant testified that he asked Attorney Maitland to file an appeal. He stated that the
issues he wanted directly appealed were “the search warrant, the probable cause and a
70
suppression hearing.” He said Attorney Maitland sent him a letter stating that he would
71
rather bring those issues up in a PCRA because they have no merit. He said Attorney
Maitland never filed a PCRA for him because he sent a letter to Defendant saying he was
going to withdraw as counsel if he wasn’t paid in full and that the Defendant “signed the
72
paper.” Defendant testified that Attorney Maitland spoke with the Defendant after he
73
had filed the post-sentence motion.
Defendant further testified that he asked his trial counsel, Attorney Kelley, to file a
74
pretrial motion and that Attorney Kelley said he was going to file one. None was ever
filed. Approximately a month before the trial term, Defendant asked Attorney Kelley
75
why no motion was ever filed and was told it was too late. He admitted he met with
76
Attorney Kelley 3 to 4 times prior to trial.
68
See Amended Petition for Post Conviction Relief, filed July 12, 2012.
69
P.C.R.A. 9-10.
70
P.C.R.A. 10.
71
P.C.R.A. 10.
72
P.C.R.A. 10.
73
P.C.R.A. 18.
74
P.C.R.A. 13-14.
75
P.C.R.A. 14-15.
76
P.C.R.A. 15-16.
9
Attorney Kelley testified that he told the Defendant that he would look at the
77
search warrant and file a suppression motion “if appropriate.” Attorney Kelley said he
reviewed the search warrant and discovery and determined that there was not a basis to
file for suppression because the police had a good faith basis to obtain the search
78
warrant. He testified he had trouble contacting the Defendant prior to trial, but that
when he did meet with the Defendant, they had a disagreement because Attorney Kelley
79
said he would not file for suppression based on his review of the discovery. Attorney
Kelley said that although he believed filing a suppression motion would have no basis, he
nevertheless attempted to raise the issue as a motion in limine just prior to trial, in the
8081
Honorable Judge Oler’s chambers. He said that motion was denied.
Attorney Maitland testified that he filed a post sentence motion and then withdrew
it because he believed there was sufficient evidence to convict the Defendant and that the
only other issues Defendant was raising were better handled in a PCRA, not a direct
82
appeal. He testified that, after review of the trial transcript, he did not believe that an
83
appeal would be meritorious. He said he explained that to the Defendant and that the
84
Defendant deferred to Attorney Maitland’s professional judgment. He was never told
85
to file an appeal.
DISCUSSION
As a general rule, in order to be eligible for post conviction collateral relief based
upon inadequate representation, “the petitioner must plead and prove by a preponderance
of the evidence … [i]neffective assistance of counsel which, in the circumstances of the
77
P.C.R.A. 25.
78
P.C.R.A. 23-24, 31-32, 35.
79
P.C.R.A. 26, 30.
80
P.C.R.A. 27, 32. The motion in limine appears nowhere in the trial transcript.
81
P.C.R.A. 27.
82
P.C.R.A. 38, 41.
83
P.C.R.A. 39.
84
P.C.R.A. 39, 42.
85
P.C.R.A. 39.
10
particular case, so undermined the truth-determining process that no reliable adjudication
of guilt or innocence could have taken place.” Act of May 13, 1982, P.L. 417, §2, as
amended, 42 Pa. C.S. § 9543(a)(2)(ii).
There are three elements a petitioner must prove to establish ineffectiveness of
counsel upon which relief can be granted. Commonwealth v. Blount, 538 Pa. 156, 647
A.2d 199 (1994);Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987);
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2025, 80 L. Ed. 2d 674 (1984). First,
the “underlying claim [must be] of arguable merit.” Blount, 538 Pa. 156, 163, 647 A.2d
199, 203. Second, the counsel’s action or inaction must not have been grounded on any
“reasonable basis designed to effectuate [the client’s] interest.” Id at 163, 647 A.2d at
203. Third, “counsel’s ineffectiveness [must have] prejudiced [the client].” Id at 163,
647 A.2d at 203. Prejudice in this context generally means that “counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Commonwealth v. Pierce, 515 Pa. 153, 158, 527 A.2d 973, 975 (1987) (quoting
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2025, 2064, 80 L. Ed. 2d 674,
693 (1984)). These elements in the context of the present case will be reviewed
hereafter.
Failure to file post sentence motion based on sufficiency of the evidence.
First, it does not appear to the court that the underlying sufficiency of the evidence
argument was of arguable merit. The test to evaluate the sufficiency of the evidence
presented at trial is whether, “viewing the evidence admitted at trial in the light most
favorable to the Commonwealth and drawing all reasonable inferences in the
Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find
every element of the [crime] charged beyond a reasonable doubt.” Commonwealth v.
Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996) (quoting Commonwealth v.
Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288 (1984)). A conviction is
proper if the evidence presented at trial is sufficient to allow the “fact finder to find every
element of the crime charged beyond a reasonable doubt.” Commonwealth v. Coleman,
2009 PA Super 229, ¶6, 984 A.2d 998, 1000. The trier of fact is “free to believe all, part
11
or none of the evidence.” Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d
1256, 1257 (1986).
A person is guilty of unlawful possession with intent to deliver a schedule II
controlled substance if he “intentionally and knowingly…possesses with intent
to…deliver, a controlled substance, said defendant [not otherwise being] authorized by
the [Controlled Substance, Drug, Device and Cosmetic] Act (hereinafter, the “Act”).” 35
P.S. §780-113(a)(30). The Commonwealth must prove the following 4 elements for a
jury to find the defendant guilty beyond a reasonable doubt of possession with intent to
deliver:
1.that the item in question is in fact a controlled substance;
2.that the item was possessed by the defendant;
3.that the defendant was aware of the item’s presence and that the item in fact
was the controlled substance charge; and
4.that the defendant possessed the item with the specific intent of delivering the
item to another.
Standard Jury Instruction, Possession with Intent to Deliver.
A person is guilty of Unlawful Possession of a Schedule II Controlled Substance if
he “knowingly or intentionally possesses a schedule II controlled substance” and is not
otherwise authorized to do so under the Act. 35 P.S. §780-113(a)(16). A person is guilty
of Unlawful Possession of Drug Paraphernalia if he “uses or possesses with intent to use
drug paraphernalia for the purpose of …manufacturing, compounding, converting,
producing, processing, …packing, repacking, storing, containing, concealing, injecting,
inhaling and/or otherwise introducing into the human body a controlled substance.” 35
P.S. §780-113(a)(32).
In the present case, it is believed that the evidence recited above was sufficient to
prove beyond a reasonable doubt that the Defendant was guilty of possession of cocaine
with intent to deliver, unlawful possession of a schedule II controlled substance and
unlawful possession of drug paraphernalia. The Commonwealth presented evidence that
the Troopers executed a search warrant in the Defendant’s girlfriend’s residence. The
12
Defendant was in the residence during execution of the search warrant and acknowledged
that he stayed there often. The Troopers found nineteen baggies of suspected cocaine, a
digital scale, a cutting agent and other drug paraphernalia. The Commonwealth’s expert
testified that the powder in the nineteen baggies was in fact cocaine. The Defendant
acknowledged on the day of the search warrant and again at trial that the drugs found
were his. He said they were for his own personal use. Trooper Borza, testifying as a
street drug expert, opined that all of the evidence found led him to the conclusion that the
items were possessed with the intent to deliver. Viewing this evidence in the light most
favorable to the Commonwealth and drawing all reasonable inferences in the
Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find
every element of each crime charged beyond a reasonable doubt.
It is a well settled fact that in a jury trial the jury is the trier of fact.
Commonwealth v. Salter, 2004 PA Super. 318, ¶8, 858 A.2d 610, 615 (2004). As the
trier of fact, the jury is to evaluate the credibility of witnesses and the evidence
presented. Id. at ¶9, 858 A.2d at 615; See also Commonwealth v. Lehr, 400 Pa. Super
514, 518, 583 A.2d 1234, 1236 (1990) (“Matters of credibility are vested in the sound
discretion of the trier of fact….”). In this case the jury chose to believe the
Commonwealth’s evidence and discredited the Defendant’s witnesses’ testimony.
Second, post-trial counsel’s action of withdrawing the post-sentence motion and
inaction of moving forward with the post-sentence motion did not lack a “reasonable
basis” from his client’s standpoint. See Blount, 538 Pa. 156, 163, 647 A.2d 199,
203 (1994). Attorney Maitland filed the post-sentence motion raising two issues: 1)
insufficiency of the evidence, and 2) ineffective assistance of trial counsel for failing to
86
file for suppression of the evidence. At the time he filed the post-sentence motion,
Attorney Maitland stated in his motion that he had not had the benefit of having
observed the trial or having reviewed the trial transcript, but that he had requested the
87
trial transcript that same day.
86
Post Sentence Motion, June 10, 2011.
87
Id.
13
It is important to note here that post-trial counsel cannot be said to have been
ineffective based on the timing of the post-sentence motion. Post-sentence motions must
88
be filed within 10 days after imposition of sentence. Defendant was sentenced on May
89
31, 2011; the post-sentence motion was filed on June 10, 2011.
In response to the two issues raised in the post-sentence motion, Judge Oler
issued an order declining to consider the ineffectiveness claim on direct appeal, without
prejudice to file the issue in a PCRA petition, and scheduled oral argument on the
90
remaining claim of insufficiency of the evidence. Attorney Maitland reviewed the trial
transcript and filed the withdrawal of the post-sentence motion, stating that, he was
aware the court was declining to hear ineffectiveness claims at that time, except for in a
PCRA, and that, “upon thorough review and analysis of the defendant’s claims,
undersigned counsel believes through the exercise of his professional judgment that the
defendant’s claims would best be pursued through a PCRA petition rather than through a
91
post-sentence motion.” It is apparent that Attorney Maitland had reviewed the trial
transcript and believed there was sufficient evidence at trial to convict the Defendant. As
a result, Attorney Maitland simply withdrew the insufficiency of the evidence claim
from his filed post-sentence motion, leaving the only other issue, ineffective assistance
92
of counsel, to be pursued through a PCRA petition.
Third, post-trial counsel’s alleged ineffectiveness did not prejudice the
Defendant. See Blount, 538 Pa. 156, 163, 647 A.2d 199, 203 (1994). Defendant did not
provide any proof that, but for counsel’s error, there was a reasonable probability of a
different outcome. A new trial would not have been granted in response to a sufficiency
of the evidence post sentence motion.
88
Pa. Rule of Criminal Procedure, Rule 720(A)(1).
89
Order of Court, May 31, 2011 and Post-Sentence Motion, June 10, 2011.
90
Order of Court, July 1, 2011.
91
Motion to Withdraw Post-Sentence Motion, August 12, 2011, ¶7.
92
P.C.R.A. 38, 41
14
Failure to preserve Defendant’s appeal rights.
Defendant states his appeal counsel was ineffective for withdrawing his
appearance without first filing a timely notice of a direct appeal. As stated above,
counsel did, in fact, file a timely appeal through a post-sentence motion, but later
withdrew it. The only issue that the court would have considered in that post-sentence
motion was insufficiency of the evidence. As discussed above, a new trial would not
have been granted in response to a sufficiency of the evidence post sentence motion. The
post sentence motion therefore would have been denied. The only issue Defendant could
have raised on direct appeal to the Superior Court from the denial of the post sentence
motion would have been insufficiency of the evidence.
In Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999), the Pennsylvania
Supreme Court held that counsel was ineffective for withdrawing a perfected direct
appeal, and, therefore, that the defendant was eligible for relief under the Post Conviction
Relief Act. The Court stated as follows:
[W]here there is an unjustified failure to file a requested
direct appeal, the conduct of counsel falls beneath the range
of competence demanded of attorneys in criminal cases …
and where the remaining requirements of the PCRA are
satisfied, the petitioner is not required to establish his
innocence or demonstrate the merits of the issue or issues
93
which would have been raised on appeal.
The Court in Lantzy emphasized, however, that the principle recited above does
not mean that a defendant can “pursue frivolous claims on appeal, or demand that counsel
pursue every possible course of action or press every point.” Id. at 227 n.8, 736 A.2d at
572 (citations omitted).
In order to succeed on a claim of ineffectiveness of counsel based solely upon a
failure to appeal, without regard to whether the appeal would have had merit, it is
necessary that defendant have requested counsel to appeal. Commonwealth v. Knighten,
93
Commonwealth v. Lantzy, 558 Pa. 214, 226-27, 736 A.2d 564, 572 (1999).
15
1999 PA Super. 291, ¶13, 742 A.2d 679, 682 (1999); see also Commonwealth v. Lehr,
400 Pa. Super. 514, 517, 583 A.2d 1234, 1235 (1990).
Defendant hired Attorney Maitland to represent Defendant on appeal. He never
94
requested Attorney Maitland file a post-sentence motion. He did, however, request
Attorney Maitland to file an appeal regarding “the search warrant, the probable cause and
95
a suppression hearing.” Although it may be assumed that Defendant expected his
counsel to file an appeal regarding insufficiency of the evidence since that issue is often
raised on appeal, there is no evidence in the record that he had directed him to
specifically include in the appeal a challenge to the sufficiency of the evidence. Attorney
Maitland nevertheless filed that issue in his post-sentence motion to preserve it until he
had time to review the trial transcript. After doing so, he came to the opinion that the
issue had no merit and withdrew it.
Because there is not an unjustified failure to file a requested direct appeal on the
issue of sufficiency of the evidence, Defendant’s request for relief must fail because it is
dependent upon proof that such an appeal would have possessed arguable merit and that
the failure to file the appeal was prejudicial. As stated previously, an award of a new trial
based on a challenge to the sufficiency of the evidence would not have been justified.
The failure to continue with the appeal caused no prejudice to the Defendant.
Failure of trial counsel to file an Omnibus Pretrial Motion Seeking Suppression.
Defendant claims that his trial counsel was ineffective for failing to file an
omnibus pretrial motion seeking suppression of evidence gained as the result of the
96
search warrant and subsequent search of Defendant’s personal belongings. He further
averred in his petition for PCRA that the search warrant was invalid, was not properly
97
served and that the search of Defendant’s clothing was illegal. At the PCRA hearing,
94
P.C.R.A. 11.
95
P.C.R.A. 9-10.
96
Amended Petition for Post Conviction Relief, July 12, 2012.
97
Id.; Defendant offered no support for his original positions that the search warrant was not properly
served and that the search of his clothing was illegal. He did not indicate what arguments should have
been made or anything on the merits of those matters. Because Defendant has failed to properly develop
16
however, the Defendant did not raise the above issues and instead testified that the issue
98
he asked Attorney Kelley to raise in a pretrial motion was the “probable cause” and that
“they didn’t have no probable cause if the co-defendant in my case was the main situation
of the probable cause that took the stand and told them that he never received anything
99
from me”. It appears from the record that Defendant wished his counsel to file a
pretrial motion to suppress the evidence based on his thoughts that the unwitting
individual who got cocaine from the searched residence to sell to Trooper Borza, and
listed as the basis of the search warrant, had since recanted, and that therefore the
100
Defendant did not think there was a basis for the search warrant to have been granted.
Again, in considering an ineffectiveness claim, the first prong the court must
consider is whether the underlying claim is of arguable merit. Blount, 538 Pa. at 163, 647
A.2d at 203. Defendant asks for relief on the basis that there was insufficient probable
cause for a search warrant to be issued. In Commonwealth v. Rivera, 816 A.2d 282
(2003), the Pennsylvania Superior Court held that counsel was not ineffective for failing
to file a motion to suppress evidence, including cocaine and other items, gained during a
search warrant of the defendant’s residence. In considering whether the search warrant
issued contained sufficient probable cause, the Court articulated the following standard:
Before an issuing authority may issue a constitutionally valid search
warrant, he or she must be furnished with information sufficient to persuade
a reasonable person that probable cause existed to conduct the search. The
information offered to demonstrate probable cause must be viewed in a
common sense, nontechnical, ungrudging and positive manner. It must also
be remembered that probable cause is based on a finding of the probability,
not a prima facie showing of criminal activity and that deference is to be
accorded a magistrate’s finding of probable cause. And the duty of the
those issues, this court will not consider the merits thereof. See Commonwealth v. Gonzalez, 608 A.2d
528, 531 (Pa.Super. 1992).
98
P.C.R.A. 14.
99
P.C.R.A. 17.
100
32, 36-37, 46. Multiple terms such as co-defendant, CI and unwitting individual were used on the
record to refer to Mr. Cotton, who testified at trial, apparently as the unwitting individual listed in Trooper
Borza’s search warrant. There is no evidence that Mr. Cotton was either charged as a co-defendant or
was a confidential informant.
17
reviewing court is simply to ensure that the magistrate had a substantial
101
basis for …concluding that probable cause existed.
Here, the affidavit of Trooper Borza said that he made buys of cocaine from an
unwitting individual on two separate days when the unwitting went into an apartment at
16 East High Street and came out with cocaine for Trooper Borza to buy. He said the
unwitting told Trooper Borza that the drugs came from the only rented out apartment in
the building at 16 East High Street. Trooper Borza was present outside the building when
the unwitting went into the residence at 16 East High Street, returned with cocaine and
sold it to Trooper Borza. He said that both purchases showed a positive result for the
presence of cocaine. He confirmed with the postmaster that there was only one
apartment in the building receiving mail at the time. This information corroborated the
statements the unwitting made to Trooper Borza that he received the cocaine from the
only apartment that was in use in the building. Applying a totality of the circumstances
test, this court finds that the issuing authority had a substantial basis for concluding that
probable cause existed that cocaine and other related items to the sale of cocaine would
be found in apartment D at 16 East High Street.
“It is axiomatic that trial counsel will not be considered ineffective for failing to
pursue meritless claims.” Rivera, 816 A.2d at 292. Although it may have been more
prudent for trial counsel to file a motion to suppress to lodge some defense, such a
motion would have lacked merit and would not have been granted. Defendant therefore
fails in the first prong that his underlying claim has arguable merit. It is interesting to
note that the Rivera Court further pointed out that, “post-trial counsel will not be deemed
ineffective for failing to raise and preserve meritless challenges to the effectiveness of
trial counsel.” 816 A.2d at 292.
In addition, Defendant fails to prove the third prong that trial counsel’s alleged
ineffectiveness of failing to file a motion to suppress prejudiced the Defendant. See
Blount, 538 Pa. 156, 163, 647 A.2d 199, 203 (1994). Defendant did not provide any
proof that, but for counsel’s error, there was a reasonble probability of a different
101
Commonwealth v. Rivera, 816 A.2d 282, 291 Pa.Super. 2003.
18
outcome. Suppression of the evidence would not have been granted and the evidence
would have been admitted at trial.
For the foregoing reasons, this court is unable to agree with Defendant that any of
his counsel have been shown to have been ineffective with respect to their failure to file a
omnibus pretrial motion seeking suppression, failure to continue an appeal through a post
sentence motion and failure to preserve Defendant’s appeal rights. The following order
will therefore be entered:
ORDER OF COURT
AND NOW, this 22nd day of January, 2013, upon consideration of Defendant’s
Amended Petition for Post Conviction Relief, following a hearing held on August 31,
2012, and for the reasons stated in the accompanying opinion, the motion is denied.
PURSUANT TO Pennsylvania Rule of Criminal Procedure 908(E), Defendant is
hereby notified of his right to file an appeal to the Pennsylvania Superior Court from this
order within 30 days of its entry.
BY THE COURT,
s/ Christylee L. Peck
Christylee L. Peck, J.
Matthew P. Smith, Esq.
Chief Deputy District Attorney
Jacob M. Jividen, Esq.
Court-appointed Counsel for Defendant
Jeffrey C. Porter, KB-4423
SCI-Forest
P.O. Box 945
Marienville, PA 16239
[BY CERTIFIED AND REGULAR MAIL]
19
20
21
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. :
:
JEFFREY C. PORTER :
OTN: L580078-2 : CP-21-CR-2532-2010
IN RE: DEFENDANT’S AMENDED PETITION FOR POST CONVICTION
RELIEF PURSUANT TO THE POST CONVICTION RELIEF ACT
BEFORE PECK, J.
ORDER OF COURT
nd
AND NOW, this 22 day of January, 2013, upon consideration of Defendant’s
Motion for Post Conviction Collateral Relief at CP-21-CR-2532-2010, following a
hearing held on August 31, 2012, and for the reasons stated in the accompanying opinion,
the motion is denied.
PURSUANT TO Pennsylvania Rule of Criminal Procedure 908(E), Defendant is
hereby notified of his right to file an appeal to the Pennsylvania Superior Court from this
order within 30 days of its entry.
BY THE COURT,
____________________
Christylee L. Peck, J.
Matthew P. Smith, Esq.
Chief Deputy District Attorney
Jacob M. Jividen, Esq.
Court-appointed Counsel for Defendant
Jeffrey C. Porter, KB-4423
SCI-Forest
P.O. Box 945
Marienville, PA 16239
[BY CERTIFIED AND REGULAR MAIL]