J-S49034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RAYMOND GASTON POWELL, III,

                            Appellant                  No. 208 EDA 2016


                  Appeal from the PCRA Order January 5, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0007621-2009

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED JUNE 13, 2016

        Appellant Raymond Gaston Powell, III, appeals the order entered in

the Court of Common Pleas of Montgomery County on January 5, 2016,

dismissing his first, counseled petition filed pursuant to the Post Conviction

Relief Act (“PCRA”).1 Upon our review of the record, we affirm.

        In our disposition of Appellant’s direct appeal, we related the following

factual and procedural history of Appellant’s case:


              Beginning in October 2007, investigators from the
        Plymouth Township Police Department and the Montgomery
        County District Attorney’s Office conducted an investigation
        involving a drug ring operating in and around Plymouth
        Township and Norristown Borough, Montgomery County. Along
        with [Appellant], the principal subjects of this investigation were
        Charles Barksdale and Dontay Brewer. The investigation focused
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-46.



*Former Justice specially assigned to the Superior Court.
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     on two primary locations: 44 Ross Street, Plymouth Meeting and
     807 Green Street, 2nd Floor, Norristown.
            On September 17, 2009, Montgomery County District
     Attorney’s Office Detective Michael Fedak submitted an
     application for a search warrant along with an extensive affidavit
     of probable cause. The affidavit detailed the investigation dating
     back to its inception in late 2007. Based upon the averments
     contained therein, which included information obtained through
     the cooperation of six confidential informants, the Honorable
     Joseph A. Smyth issued a warrant authorizing investigators to
     search, inter alia, the aforementioned residence located on Ross
     Street in Plymouth Meeting. Upon execution of the warrant,
     officers discovered numerous firearms, ammunition, drug
     paraphernalia including plastic bags, a scale, cooking pots with
     cocaine residue, cutting agents, and instructions for preparing
     powder and crack cocaine. Investigators also retrieved several
     items linking [Appellant] to the residence, including photographs
     of him, a driver’s license, registrations for two automobiles and
     letters.
            Having been detained at the scene prior to the
     commencement of the search, [Appellant] was subsequently
     arrested after the police discovered the contraband. A search
     warrant was obtained for [Appellant’s] Cadillac, in which police
     found additional contraband. [Appellant] was ultimately charged
     with numerous offenses related to the drug-trafficking ring.
     Others were charged in the conspiracy, but all except [Appellant]
     entered into guilty plea agreements, some of which involved
     testifying for the prosecution against [Appellant].
            [Appellant] was tried by a jury and, on September 23,
     2010, was convicted of possession with intent to deliver a
     controlled substance, unlawful possession of firearms and related
     charges.     On December 7, 2010, Judge Smyth sentenced
     [Appellant] to an aggregate term of 16 to 40 years’
     incarceration.


Commonwealth v. Powell, No. 110 EDA 2011, unpublished memorandum

at 1-3 (Pa.Super. filed March 28, 2013).

     On direct appeal, Appellant first alleged Judge Smyth should have

recused himself from the suppression proceedings, and Appellant attacked



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the validity of the search warrant the court had issued.     Appellant further

challenged Judge Smyth’s denial of his motion to disclose the identities of

the confidential informants and claimed he was entitled to a new trial in light

of after-discovered evidence in the form of a recantation of one of the

Commonwealth’s witnesses.      Finding no merit to these claims, this Court

affirmed Appellant’s judgment of sentence. Our Supreme Court denied

Appellant’s petition for allowance of appeal on October 29, 2013.         See

Commonwealth v. Powell, 621 Pa. 702, 78 A.3d 1090 (2013).

      On June 20, 2014, Appellant filed a PCRA petition, pro se.       Counsel

was appointed and filed an amended petition wherein he raised various

claims of trial counsel’s ineffectiveness. The PCRA court held a hearing on

Appellant’s petition on April 14, 2015, at which time Appellant, his sister and

trial counsel testified. Following the hearing, the PCRA court took the matter

under advisement to review the issues Appellant had raised in his PCRA

petition in light of the hearing testimony, the parties’ briefs, and the record

as a whole. In its Memorandum and Final Order Dismissing Post-Conviction

Petition dated December 31, 2015, and entered on January 5, 2016, the

PCRA court denied Appellant’s petition (“Memorandum”).       Appellant filed a

timely notice of appeal on January 15, 2016. The trial Court did not order,

and Appellant did not file, a concise statement of matters complained of on

appeal pursuant to Pa.R.A.P. 1925.

      In his brief, Appellant presents the following question for our review:


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            Did Trial Counsel render ineffective assistance of counsel
      when he failed to raise a motion in limine, or take other
      appropriate steps, to redact portions of an intercepted telephone
      conversation, involving the Appellant, which clearly revealed that
      the Appellant was incarcerated?

Brief for Appellant at 3.

      “In PCRA proceedings, an appellate court's scope of review is limited

by the PCRA's parameters; since most PCRA appeals involve mixed

questions of fact and law, the standard of review is whether the PCRA court's

findings   are   supported   by   the    record   and   free   of   legal   error.”

Commonwealth v. Pitts, 603 Pa. 1, 7, 981 A.2d 875, 878 (2009) (citation

omitted). Our Supreme Court has further stated that before a PCRA

petitioner will be deemed entitled to relief on an ineffectiveness claim, he or

she must establish:

      (1) the underlying claim has arguable merit; (2) no reasonable
      basis existed for counsel's action or failure to act; and (3) he
      suffered prejudice as a result of counsel's error, with prejudice
      measured by whether there is a reasonable probability the result
      of the proceeding would have been different. Commonwealth
      v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127 (2011) (employing
      ineffective assistance of counsel test from Commonwealth v.
      Pierce, 515 Pa. 153, 527 A.2d 973, 975–76 (1987)). Counsel is
      presumed       to    have    rendered     effective   assistance.
      Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291 (2010).
      Additionally, counsel cannot be deemed ineffective for failing to
      raise a meritless claim. Commonwealth v. Jones, 590 Pa. 202,
      912 A.2d 268, 278 (2006). Finally, because a PCRA petitioner
      must establish all the Pierce prongs to be entitled to relief, we
      are not required to analyze the elements of an ineffectiveness
      claim in any specific order; thus, if a claim fails under any
      required element, we may dismiss the claim on that basis. Ali,
      at 291.




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Commonwealth v. Treiber, ___ Pa. ____, ____, 121 A.3d 435, 445

(2015) (footnote omitted).

        Herein, during the course of trial, the Commonwealth played a tape

recording of a conversation between Appellant and his co-conspirator sister,

Erica Powell, and displayed a transcript of the conversation as an aid to the

jury, which included a reference that a co-conspirator Asmar Gary was “in

here with me.”2       The call was recorded shortly after Appellant had been

arrested and incarcerated awaiting trial in the instant matter, and his arrest

was the topic of the conversation between Ms. Powell and Appellant.

Defense counsel did not timely object to the playing of the conversation.

Instead, after the jury had been excused for a recess, defense counsel

placed an objection on the record, and the following discussion ensued in

chambers:

              THE COURT: Okay.           Do you want to put something on the

        record?

              TRIAL COUNSEL: Yes, Judge. I know the tape, for the
        record, has already been played. But there was [sic] references,
        I think in there that I believe the jury clearly could have figured
        out that the call was from prison.

             THE COURT:       Well, the tape was provided to you in
        advance. I wish-- and the transcripts-- and I wish--

            TRIAL COUNSEL: Well, that’s not true, Judge. I don’t
        mean to cut Your Honor off. I didn’t get a transcript ever. The
____________________________________________


2
    Only the tape, not the transcript thereof, was admitted into evidence.



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     first time I looked at the transcript was just now right before the
     District Attorney played it.

         As far as the tape is concerned, I did get the CD on
     Monday night, a day and a half ago.

           DISTRICT ATTORNEY:        Judge, he has had the CD since
     June or July.

              TRIAL COUNSEL: The redacted CD.

            DISTRICT ATTORNEY:         Right.   And the only thing I
     redacted was the part where they talk about Montgomery
     County Correctional facility. And when the operator comes on, I
     said to him, let me know if you have any objections when I gave
     it to him on Monday.
            As far as the transcript is concerned, I believe that, when
     we were ready to go to trial in July, a transcript was prepared
     then.

              THE COURT: Was it given to him?

              DISTRICT ATTORNEY:     I don’t know.   It is an aid to the
     jury--

            THE COURT: Yes. But it would have been nice if he made
     this objection beforehand and called it to my attention, and I
     could have looked at the transcription.          Nobody made the
     objection to me in advance.
            The only objection I considered, off the record, was the
     fact that the two talkers’ pictures were on the disc. And I ruled
     that those pictures should not be shown.
            And you made an objection that said, this is a pay call.
     And you thought the fact that it was a pay call, there was an
     inference that the call was coming from the prison.
            And I said I didn’t think that to be so. I said that call—this
     is a pay call from [Appellant]. Do you accept?
            And I believe something to that effect. And I said that
     doesn’t mean prison. I mean, my God, that’s the way I always
     used to call my kids.
            We didn’t put that on the record. At no time did anybody
     call my attention, I think there might have been one or two
     references about in here. Obviously, I would delete those in


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      advance. I can’t delete them now. The tapes have been played
      and the transcripts have been shown.

            DISTRICT ATTORNEY: The tape is the evidence. I mean,
      the tape is the evidence in the case.

            TRIAL COURT: The tape is the evidence.

            DISTRICT ATTORNEY: In June or July. And the redacted
      portion is –

             THE COURT: There was some statement he made that, he
      better have the money. If he don’t have the money he is in here
      with me. Something to that effect. Now, that can mean a lot of
      different things.

            DISTRICT ATTORNEY: Exactly.

            THE COURT: If I would have heard it in advance, you
      know, there’s a good chance I might have deleted it. Nobody
      called this to my attention in advance. There’s nothing I can do
      about it now. I don’t want to give a cautionary instruction. It
      would just [sic] their attention to it.

            DEFENSE COUNSEL: Understood.

            THE COURT: The objection is noted. Okay. Nothing else I
      could say.

N.T., Trial, 9/22/10, at 233-237.

      Appellant avers that the “unmistakable, plain language of the

telephone conversation (of which the jury was provided a written transcript)

made it clear that [Appellant] was incarcerated at that specific point in

time.”   As such, Appellant maintains trial counsel had been ineffective in

failing to file a motion in limine, or otherwise act appropriately, to ensure the

jury would not hear the “inadmissible” portions of the recordings. Brief for

Appellant at 7-8.

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      As permitted under Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052 (1984), we analyze the prejudice prong of the Pierce test first.

See also Trieber, ___ Pa. at ____, 121 A.3d at 448.        In doing so we find

that even assuming, as Appellant urges, that there is arguable merit to

Appellant’s claim the jury understood his words to mean he had been

incarcerated at the time of the phone call and that trial counsel had no

reasonable basis for failing to challenge this evidence in a timely fashion,

Appellant is not entitled to relief for his failure to demonstrate the outcome

of trial would have been different had his statement been redacted from the

telephone conversation.

      As the PCRA court noted in its Memorandum, if the jury were able to

infer from Appellant’s ambiguous statement that “[h]e in here with me”

meant Appellant was incarcerated, it would have done so in the context of

Appellant’s being in prison awaiting trial for the charges pending in this case.

Memorandum, filed 12/31/15, at 29. However, Appellant erroneously posits

he was prejudiced by any reference to his incarceration, for our Supreme

Court has stated that “although generally no reference may be made at trial

in a criminal case to a defendant’s arrest or incarceration for a previous

crime, there is no rule in Pennsylvania which prohibits reference to a

defendant’s incarceration awaiting trial or arrest for the crimes charged.”

Commonwealth v. Johnson, 576 Pa. 23, 52-53, 838 A.2d 663, 680-81

(2003) (citing Commonwealth v. Williams,           541 Pa. 85, 94, 660 A.2d


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1316, 1321 (1995); see also, Commonwealth v. Wilson, 538 Pa. 485,

506-07, 649 A.2d 435, 445-46 (1994) (finding testimony indicating

defendant had been incarcerated before trial was not improper where jury

reasonably could infer defendant’s detention was result of criminal acts for

which he was then being tried); Commonwealth v. King, 959 A.2d 405,

419 (Pa.Super. 2008) (relying upon Johnson, supra for a holding in the

alternative that the appellant had not been harmed by an inferential

reference of incarceration related to the matter for which he was on trial).

      In addition, given the overwhelming direct and circumstantial evidence

of Appellant's guilt, it is difficult to believe the outcome of the proceedings

would have been different but for counsel's failure to challenge Appellant’s

brief statement in the recorded phone call.         See Commonwealth v.

Philistin, 617 Pa. 358, 53 A.3d 1, 10 (2012) (stating trial counsel presumed

effective, and appellant must overcome such presumption by proving

prejudice, meaning that there is a reasonable likelihood the outcome would

have been different but for counsel's alleged ineffectiveness).     Appellant’s

DNA was discovered on the recovered firearms and significant contraband

was recovered from both his home and vehicle. Furthermore, testimony of

his co-conspirators implicated him in the crimes. In this regard, the PCRA

court stated:

      [T]he [c]ourt is convinced, in the context of the other evidence
      in the case, that any error in allowing the references to be heard
      by the jury would have been harmless beyond a reasonable
      doubt.    The evidence connecting [Appellant] with the crack

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     cocaine operation, and with possession, at the very least joint if
     not sole possession, of the drugs, paraphernalia, and firearms
     found in the house, and with conspiracy with the others in the
     crimes, was overwhelming. The testimony of the admitted drug
     dealer Asmar Gary that Barksdale was his cocaine supplier, Gary
     would buy from either brother depending who had it, he had
     seen [Appellant] buy cocaine in large quantity and cook it into
     crack in a pot found in the house, had seen him display and
     move the firearms, which he claimed were his, and was there
     the day of the arrests to arrange to buy two ounces of coke from
     [Appellant] was alone sufficient to convict [Appellant] in the
     cocaine conspiracy beyond a reasonable doubt. In light of Gary’s
     testimony, especially damning were the letters, one addressed to
     [Appellant], describing methods for preparing cocaine and crack
     for distribution, found in his house in a room to which he had
     free access in close proximity to his driver’s license, car
     registration, and photographs of him. This evidence, together
     with all the other evidence presented by the Commonwealth,
     provided the jury with a strong inference [Appellant] was a
     leader of the cocaine conspiracy and guilty of the crimes [with]
     which he was charged. By contrast, [Appellant’s] evidence was
     weak and inherently incredible. A sister described a job to which
     she drove him, but could not explain convincingly why he
     needed a ride when he had his own car, and no records of
     employment were produced. A brother and coconspirator,
     Barksdale, claimed all the other conspirators were involved in
     the conspiracy but his brother was not, and explained his plea to
     conspiracy with his brother as being prompted by his attorney’s
     urging him to lie. Of course, his attorney contradicted this
     preposterous claim. The mild references to prison in the taped
     telephone call-if that is how the jury perceived them- could in
     the entire context of the case have had no influence on the jury’s
     verdict finding [Appellant] guilty of the crimes charged. The jury
     had already heard testimony that [Appellant], Gary and Thomas
     were arrested on the day his house was searched. It was
     apparent from the context of their testimony that Barksdale and
     Gary were both incarcerated.         The jury could simply have
     presumed [Appellant] was as well, and paid no mind to the brief,
     passing, equivocal prison references in the taped telephone call,
     upon which the Commonwealth’s witness interpreting language
     in the call was not asked to and did not comment. Admission of
     the tape was harmless to the defense’s case.




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Memorandum, filed 1/5/15, at 28-29 (citing Trial Court Opinion, dated

8/10/11, at 34-40).

      Accordingly, we conclude Appellant's claim that trial counsel had been

ineffective for failing to raise a motion in limine or otherwise properly

challenge the Commonwealth's playing of the telephone conversation for the

jury without first redacting Appellant’s vague reference fails for lack of

prejudice.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2016




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