J-S63036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
               v.                        :
                                         :
                                         :
 CHARLES W. SMITH                        :
                                         :
                     Appellant           :   No. 618 WDA 2018

                 Appeal from the PCRA Order April 4, 2018
    In the Court of Common Pleas of Fayette County Criminal Division at
                      No(s): CP-26-CR-0000045-2012


BEFORE:      OTT, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                 FILED NOVEMBER 06, 2018

      Appellant, Charles W. Smith, appeals from the order entered in the

Court of Common Pleas of Fayette County denying his first petition filed under

the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, following

the appointment of counsel and an evidentiary hearing. After a careful review,

we affirm.

      On direct appeal, this Court previously summarized the facts underlying

Appellant’s convictions as follows:

            On November 1, 2011, Detectives Thomas Patton, Antonio
      Muniz, and Christopher Kozlowski of the Fayette County Drug Task
      Force arrived at 334 Breakiron Road, Bullskin township, Fayette
      County, Pennsylvania, where they met a confidential information
      (“CI”). (N.T., 11/5-6/12, 30-31). The CI had previously informed
      the police that crack cocaine could be purchased from inside one
      of the two mobile home trailers located at 334 Breakiron Road.
      (N.T. at 32). The CI was then driven to a secure location and
      searched by the detectives for money and contraband. (N.T. at
      32). Following the search, the CI was given $25.00 in marked
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S63036-18


        U.S. currency and was then returned to 334 Breakiron Road by
        the detectives. (N.T. at 32-33). After a few moments inside 334
        Breakiron Road, the CI reemerged with a small plastic baggie
        containing what the detectives suspected to be crack cocaine.
        (N.T. at 34). Shortly thereafter, the detectives obtained a search
        warrant for 334 Breakiron Road. (N.T. at 37-39).
               The detectives returned to the location along with two
        additional police officers and a search warrant that same night….
        (N.T. at 39). Upon entering one of the trailers, the detectives
        observed an African American male, later identified as Leron
        Brown from Pittsburgh, Pennsylvania, retreat to a back bedroom
        where he was eventually apprehended. (N.T. at 42, 44-45).
        Detective Kozlowski discovered a plastic baggie containing cocaine
        only a few feet away from Brown’s location. (N.T. at 78, 86-88).
        [Detective] Muniz also uncovered a revolver in the trailer’s
        ventilation ductwork and a muzzleloader in one of the closets.
        (N.T. at 88-89). The detectives also found spoons, syringes, a
        digital scale, two cell phones, $461.00 in cash, phone numbers
        and “owe sheets” that night as well. (N.T. at 47, 54).
              [Appellant] was also found inside the trailer. (N.T. at 56).
        After being Mirandized[,1 Appellant] admitted that he knew and
        permitted Leron Brown to sell drugs from the trailer. (N.T. at 60-
        61, 80).

Commonwealth v. Smith, No. 2006 WDA 2012, *1-2 (Pa.Super. filed

6/16/14) (unpublished memorandum) (quoting Trial Court Opinion, filed

6/20/13, at 2-3) (footnote added).

        Appellant was charged with two counts of person not to possess a

firearm, criminal conspiracy, possession of a controlled substance, and

possession of drug paraphernalia.2 On November 5, 2012, represented by


____________________________________________


1   Miranda v. Arizona, 384 U.S. 436 (1966).

218 Pa.C.S.A. § 6105(a)(3)(i), 18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(30),
and 35 P.S. § 780-113(a)(16), respectively.

                                           -2-
J-S63036-18


counsel, he proceeded to a jury trial, at the conclusion of which the jury

convicted Appellant on all counts.

      After the jury returned its verdict, Appellant had an outburst in the

courtroom, for which the trial court found him in contempt and sentenced him

to a flat term of six months’ imprisonment. N.T., 11/6/12, at 153-54. On

December 6, 2012, the trial court sentenced Appellant on his other convictions

to an aggregate of seven years to fourteen years in prison, to run

consecutively to his sentence for contempt. Appellant filed a timely appeal to

this Court.

      On appeal, Appellant contended the trial court erred in failing to give

the jury a missing witness instruction with respect to the Commonwealth’s

failure to call the CI as a witness at trial. This Court concluded Appellant was

not entitled to relief on his sole appellate claim. However, we sua sponte

addressed the legality of Appellant’s sentence for contempt and concluded

that the trial court’s imposition of a flat six month term of incarceration for

Appellant’s criminal contempt conviction was illegal.       Thus, we vacated

Appellant’s judgment of sentence and remanded for resentencing as to all

offenses.

      On remand, the trial court initially resentenced Appellant on July 29,

2014, to a term of three to six months’ incarceration for the contempt of court

conviction, to run consecutively with the sentence imposed on December 6,

2012. Appellant timely filed a notice of appeal on August 1, 2014.


                                     -3-
J-S63036-18


       While the appeal was pending, the trial court held a resentencing

hearing on October 9, 2014, because the trial court was concerned that it had

not complied in full with this Court’s remand instructions since the trial court

resentenced Appellant on the contempt conviction and left the rest of the

December 6, 2012, sentence alone. The trial court purported to “resentence”

Appellant for his jury convictions to an aggregate of seven years to fourteen

years in prison, to run consecutively to the contempt sentence imposed on

July 29, 2014.

       After a careful review, this Court concluded that the trial court lacked

the jurisdiction to “resentence” Appellant on October 9, 2014, which was more

than two months after Appellant filed an appeal to this Court.             See

Commonwealth v. Smith, No. 1259 WDA 2014 (Pa.Super. filed 2/19/15)

(unpublished memorandum). Accordingly, we held the trial court’s October

9, 2014, “resentencing” was null and void.

       As to the July 29, 2014, judgment of sentence, this Court held the trial

court erred in failing to follow this Court’s specific remand instructions to

resentence Appellant on all of his convictions. Accordingly, we vacated the

July 29, 2014, judgment of sentence and remanded for full resentencing on

all of Appellant’s convictions.3 See id.


____________________________________________


3 Moreover, to the extent Appellant attempted to reargue his issue concerning
the trial court’s failure to give a missing witness instruction, we found the
issue to be outside the scope of this Court’s limited remand order, and thus,
we declined to alter this Court’s previous resolution of the issue.

                                           -4-
J-S63036-18


      Upon remand, the trial court resentenced Appellant to three months to

six months of prison for the contempt conviction, as well as to an aggregate

of five and one-half years to eleven years in prison for the remaining

convictions, the sentences to run concurrently. Appellant filed a timely appeal

wherein he again contended the trial court erred in failing to give the jury a

missing witness instruction. Concluding the issue was outside the scope of

this Court’s limited remand order, we declined to address the issue, noting

that our previous decisions adequately addressed the issue. Consequently,

we affirmed Appellant’s judgment of sentence on September 28, 2015.

Commonwealth v. Smith, 826 WDA 2015 (Pa.Super. filed 9/28/15)

(unpublished memorandum).        Appellant filed a petition for allowance of

appeal, which our Supreme Court denied on December 29, 2015.

      On December 20, 2016, Appellant filed a timely pro se PCRA petition,

and the PCRA court appointed counsel, who filed an amended PCRA petition

on Appellant’s behalf. On June 26, 2017, the PCRA court held an evidentiary

hearing, and by order entered on April 4, 2018, the PCRA court denied

Appellant’s PCRA petition. This timely, counseled appeal followed. The PCRA

court directed Appellant to file a timely Pa.R.A.P. 1925(b) statement,

Appellant timely complied, and the PCRA court filed a Pa.R.A.P. 1925(a)

statement in lieu of opinion.

      On appeal, Appellant presents the following issues in his Statement of

Questions Involved (verbatim):


                                     -5-
J-S63036-18


      1. Whether the PCRA court erred in finding that Officer Ryan
         Thomas Reese’s subsequent criminal charges do not constitute
         after-discovered evidence[?]
      2. Whether the PCRA court erred in not finding defense counsel,
         Benjamin Goodwin, Esq., ineffective for failing to file a motion
         stating that the Commonwealth violated Rule 600?
      3. Whether the PCRA court erred in not finding defense counsel,
         Benjamin Goodwin, Esq., ineffective for failing to call Brenda
         St[ewart] as a witness?
      4. Whether the PCRA court erred in not finding defense counsel,
         Benjamin Goodwin, Esq., ineffective for failing to call Karen
         Smith as a witness?

Appellant’s Brief at 3.

      Initially, we note that, when reviewing the propriety of an order denying

PCRA relief, this Court is limited to determining whether the evidence of record

supports the conclusions of the PCRA court and whether the ruling is free of

legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super.

2012). We grant great deference to the PCRA court’s findings that are

supported in the record and will not disturb them unless they have no support

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084

(Pa.Super. 2014).

      In his first issue, Appellant contends the PCRA court erred in failing to

find that Police Officer Ryan Thomas Reese’s criminal charges/conviction for,

inter alia, unlawful contact with a minor, constituted after-discovered evidence

requiring a new trial in Appellant’s case.    Appellant’s Brief at 10.   In this

regard, Appellant asserts that Officer Reese testified at Appellant’s 2012 jury

trial as an expert in the field of narcotics, opining that the trailer raided in


                                     -6-
J-S63036-18


Appellant’s case was used as a “narcotics house.” Id. Appellant avers that,

if he is awarded a new trial, Officer Reese’s subsequent 2014 criminal charges

and 2016 conviction “would be used to question whether Officer Reese was

qualified to testify as an expert witness.” Id. at 12.

      To be entitled to relief under the PCRA on the basis of exculpatory after-

discovered evidence, the petitioner must plead and prove by a preponderance

of the evidence “[t]he unavailability at the time of trial of exculpatory evidence

that has subsequently become available and would have changed the outcome

of the trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi).

            To obtain relief based on after-discovered evidence, [an]
      appellant must demonstrate that the evidence: (1) could not have
      been obtained prior to the conclusion of the trial by the exercise
      of reasonable diligence; (2) is not merely corroborative or
      cumulative; (3) will not be used solely to impeach the credibility
      of a witness; and (4) would likely result in a different verdict if a
      new trial were granted.
            The test is conjunctive; the [appellant] must show by a
      preponderance of the evidence that each of these factors has been
      met in order for a new trial to be warranted. Further, when
      reviewing the decision to grant or deny a new trial on the basis of
      after-discovered evidence, an appellate court is to determine
      whether the PCRA court committed an abuse of discretion or error
      of law that controlled the outcome of the case.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa.Super. 2012) (citations,

brackets, and quotation marks omitted).

      Here, at the PCRA hearing, the following relevant exchange occurred

during PCRA counsel’s direct examination of trial counsel:

      Q. Officer Reese testified at trial, correct?



                                      -7-
J-S63036-18


     A. Without seeing the transcript, I couldn’t tell you. I remember
     Patton and I’m not trying to be evasive, I don’t remember, I
     remember Patton.
           [PCRA COUNSEL]: Your Honor, may I approach the
     witness?
           THE COURT: You may.
     Q. [Trial counsel], I’m going to show you a copy of the transcript.
     A. Okay. Yes, I reviewed the record.     It appears Officer Reese
     testified.
     Q. And at the time you did not know about his misconduct that
     eventually came to light, correct?
     A. No.
     Q. And you would not have been able to cross-examine him on
     that misconduct at that time, correct?
     A. I didn’t know anything about it, you know, so I had no
     knowledge of it.

N.T., 6/26/17, at 7-8.

     Further, the following relevant exchange occurred during PCRA counsel’s

direct examination of Appellant:

     Q. Did Officer Reese testify on behalf of the Commonwealth at
     trial?
     A. Yes.
     Q. And after trial did you learn anything about Officer Reese?
     A. I didn’t hear you.
     Q. After trial did you learn anything about Officer Reese?
          [ADA]: Your Honor, I’m going to object, it does call for
     hearsay.
           THE COURT: Sustained.
     Q. [Appellant], you learned something about Officer Reese that
     you believed you that [sic] couldn’t use in trial, correct?
     A. Yes.
     Q. But you were unable to use that information against Officer
     Reese at trial because you learned it afterwards?

                                    -8-
J-S63036-18


      A. Yes, that’s correct.
                                       ***
      Q. As a matter of public record, you discovered that Officer Reese
      had legal problems, correct?
      A. Yes, he did.
      Q. And these legal problems as a matter of public record were
      criminal in nature?
      A. That’s correct.

Id. at 10-12.

      In concluding Appellant was not entitled to relief on his after-discovered

evidence claim, the PCRA court found Appellant failed to demonstrate that

Officer Reese’s subsequent criminal conduct would not be used solely to

impeach the credibility of Officer Reese and/or that the evidence would likely

result in a different verdict if a new trial was granted. PCRA Court Opinion,

filed 4/3/18, at 1. The PCRA court noted there was no nexus or relationship

between Appellant’s case and Officer Reese’s criminal misconduct and,

further, Officer Reese testified at Appellant’s trial as an expert in the field of

narcotics as opposed to a fact witness. Id.

      We find no abuse of discretion or error of law in this regard.         See

Foreman, supra.      In fact, we note that, during closing arguments to the

PCRA court, PCRA counsel admitted that Officer Reese’s testimony at

Appellant’s trial was “rather ancillary…more testifying about the whole process

of the drug bust and more of an expert witness, not so much as actually

handling the evidence itself or even being the lead officer in the case[.]” N.T.,



                                      -9-
J-S63036-18


6/26/17, at 28. Thus, we conclude Appellant is not entitled to relief on his

first claim.

      In his remaining claims, Appellant presents issue related to the effective

assistance of his trial counsel. In reviewing his claims, we note the following

well-established legal precepts.

      “To plead and prove ineffective assistance of counsel, a petitioner must

establish: (1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice resulted

from counsel’s act or failure to act.” Rykard, 55 A.3d at 1189–90 (citation

omitted). A claim of ineffectiveness will be denied if the petitioner’s evidence

fails to meet any one of these prongs. Commonwealth v. Martin, 607 Pa.

165, 5 A.3d 177, 183 (2010).       “We do not employ a hindsight analysis in

comparing trial counsel’s actions with other efforts he may have taken.”

Commonwealth v. Stultz, 114 A.3d 865, 881 (Pa.Super. 2015). Moreover,

counsel is presumed to have rendered effective assistance. Commonwealth

v. Montalvo, 631 Pa. 516, 114 A.3d 401, 410 (2015). We have explained

that trial counsel cannot be deemed ineffective for failing to pursue a meritless

claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.Super. 2003) (en

banc).

      In his first ineffective assistance of counsel claim, Appellant avers trial

counsel was ineffective in failing to file a motion seeking dismissal pursuant

to Pa.R.Crim.P. 600.


                                     - 10 -
J-S63036-18


       Rule 600 of our Rules of Criminal Procedure requires that the

Commonwealth bring a defendant to trial within 365 days of the filing of the

criminal complaint. See Pa.R.Crim.P. 600(A)(2)(a).4

       A defendant, however, is not automatically entitled to discharge
       under Rule 600 where trial starts more than 365 days after the
       filing of the complaint. Rather, Rule 600 “provides for dismissal
       of charges only in cases in which the defendant has not been
       brought to trial within the term of the adjusted run date, after
       subtracting all excludable and excusable time.” The adjusted run
       date is calculated by adding to the mechanical run date, i.e., the
       date 365 days from the complaint, both excludable and excusable
       delay.

Commonwealth v. Roles, 116 A.3d 122, 125 (Pa.Super. 2015) (quotations

and citations omitted).

       Excludable time includes delays attributable to a defendant or his

counsel. See Commonwealth v. Matis, 551 Pa. 220, 710 A.2d 12, 16

(1998). Excusable time includes delays that occur despite the due diligence

of the Commonwealth and beyond its control. See Commonwealth v.

Goldman, 70 A.3d 874, 879 (Pa.Super. 2013). Charges must be dismissed

for failure to abide by Rule 600 only where the Commonwealth fails to bring a

defendant to trial within 365 days, calculated after taking into account all

excusable delays and excludable time. See id. at 880.


____________________________________________


4 The Pennsylvania Supreme Court adopted a new Rule 600, effective July 1,
2013. Here, because the criminal complaint was filed prior to the enactment
of the new rule, we will apply the former version. See Commonwealth v.
Brock, 619 Pa. 278, 61 A.3d 1015, 1016 n.2 (2013).



                                          - 11 -
J-S63036-18


         Because a successful Rule 600 motion results in the dismissal of charges

before trial, prejudice in a PCRA context will be established upon a showing of

a meritorious claim. See Commonwealth v. Lynn, 815 A.2d 1053, 1056

(Pa.Super. 2003). Therefore, in order to determine if trial counsel was indeed

ineffective, we must assess if Appellant’s Rule 600 motion would have been

successful.

         Here, Appellant was formally charged on November 2, 2011, and his

mechanical run date under Rule 600 was November 2, 2012. However, as the

PCRA court found, there were at least 42 days of excludable delay attributed

to   Appellant. Specifically, the     docket entries reveal that Appellant’s

preliminary hearing was scheduled for November 10, 2011; however, it was

rescheduled for November 17, 2011, due to a continuance request made by

trial counsel.    See Commonwealth v. Brown, 875 A.2d 1128 (Pa.Super.

2005) (holding that, under Rule 600, excludable time includes the

unavailability of the defendant or the defendant’s attorney, as well as any

continuance granted at the request of the defendant or the defendant’s

attorney).     Further, on November 17, 2011, the preliminary hearing was

rescheduled to December 22, 2011, because “[Appellant] failed to appear-

good cause.” See id. Thereafter, Appellant was brought to trial on November

5, 2012, well within the adjusted run date.         Thus, we find no merit to

Appellant’s Rule 600 claim, and counsel may not be deemed ineffective on this

basis.


                                       - 12 -
J-S63036-18


      Appellant intertwines his remaining ineffective assistance of counsel

claims, contending that trial counsel was ineffective in failing to call Brenda

Stewart and Karen Smith as trial witnesses. In this regard, he specifically

avers the following:

              During the PCRA hearing in the present case, [Appellant]
      called Brenda Stewart and Karen Smith to testify on his behalf.
      Both Brenda Stewart and Karen Smith stated that they were not
      called as witnesses at trial, but they would have been willing to
      testify on [Appellant’s] behalf. [N.T., 6/26/17, at 18, 22]. In fact,
      Brenda Stewart actually spoke to [trial counsel] prior to trial. [Id.
      at 18]. The absence of their testimony denied [Appellant] a fair
      trial, because these witnesses would have verified for the jury that
      [Appellant] did not reside at the trailer that was raided by the
      police, but rather at the other trailer on the property. [Id. at 19,
      23]. Also, their testimony would have enabled the jury to draw
      the conclusion that Clifton E. Smith, [Karen Smith’s husband], was
      in fact engaged in the sale of drugs out of the trailer, since Clifton
      E. Smith resided in the trailer. [Id.]

Appellant’s Brief at 17-18.

      To prove that trial counsel provided ineffective assistance for failing to

call a witness, a petitioner must demonstrate:

      (1) the witness existed; (2) the witness was available to testify
      for the defense; (3) counsel knew of, or should have known of,
      the existence of the witness; (4) the witness was willing to testify
      for the defense; and (5) the absence of the testimony of the
      witness was so prejudicial as to have denied the defendant a fair
      trial.

Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 599 (citation

omitted). Failure to call a witness is not per se ineffective assistance of

counsel,   for   such   a   decision   implicates   matters   of   trial   strategy.

Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305, 1319 (1996).


                                       - 13 -
J-S63036-18


       In the case sub judice, trial counsel testified that he knew Ms. Stewart

and Ms. Smith existed, and Appellant asked him to call them as witnesses

during the trial. N.T., 6/26/17, at 9. However, trial counsel testified that he

did not call Ms. Stewart to testify because, when he interviewed her, he

discovered that she had not been to the Fayette County area for some time

and she did not have any relevant information about either the crimes or the

location of Appellant’s residence.5 Id. at 6.      Moreover, as to Ms. Smith, trial

counsel testified that Ms. Smith’s attorney informed trial counsel that, if he

called Ms. Smith to testify at Appellant’s trial, Ms. Smith would “plead the

fifth.” Id. at 7. Accordingly, trial counsel had a reasonable strategic basis for

not calling Ms. Stewart or Ms. Smith to testify on behalf of Appellant at trial.

See Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127 (“With

regard to…reasonable basis prong, we do not question whether there were

other more logical courses of action which counsel could have pursued; rather,

we must examine whether counsel’s decisions had any reasonable basis.”)

(quotation marks and quotation omitted)); Commonwealth v. McCormick,

519 A.2d 442, 445 (Pa.Super. 1986) (holding the possibility of prejudice to

the defendant as a result of the jury seeing a witness called on the defendant’s

behalf invoke the Fifth Amendment, which might suggest the witness was an



____________________________________________


5 During closing legal arguments at the PCRA evidentiary hearing, PCRA
counsel admitted to the PCRA court that, “Brenda Stewart, of course, as it
turns out, doesn’t know much of anything.” N.T., 6/26/17, at 27.

                                          - 14 -
J-S63036-18


accomplice of the defendant’s, provided a reasonable strategic basis for not

calling the witness).

      Furthermore, as the PCRA court indicated, even if Ms. Stewart and Ms.

Smith would have testified at trial that Appellant did not reside in the trailer,

which was raided by the police, but resided in a different trailer, their

testimony would have been merely cumulative of other evidence offered by

Appellant.   For instance, at trial, Appellant presented the testimony of a

Fayette County Tax Assessment Office employee, who identified the owner of

the police-raided trailer as “Alice Smith in care of Earl Smith,” as well as the

testimony of Steven Pritts, who testified that Appellant did not live in the

police-raided trailer.    N.T., 11/5/12, at 120-21, 127-28.         Accordingly,

Appellant has not demonstrated that the absence of Ms. Stewart’s or Ms.

Smith’s testimony was so prejudicial as to have denied Appellant a fair trial.

See Washington, supra. Therefore, we find Appellant is not entitled to relief

on his ineffective assistance of counsel claims.

      For all of the foregoing reasons, we affirm.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2018

                                     - 15 -
