J-S62027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STEPHEN MAURICE BARRY-GIBBONS

                            Appellant                   No. 543 WDA 2015


                  Appeal from the PCRA Order March 10, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000405-2007


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                        FILED NOVEMBER 19, 2015

        Appellant Stephen Maurice Barry-Gibbons appeals from the order of

the Erie County Court of Common Pleas denying his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq.         We

affirm.

        This Court previously set forth the relevant facts as follows:

           On January 3, 2007, Lieutenant Michael Nolan of the Erie
           Police Department applied for and was granted a search
           warrant for Appellant’s residence at 1015 East 5th Street
           in Erie.   Lt. Nolan’s affidavit of probable cause relied
           heavily on information provided by a confidential
           informant, who[m] he deemed reliable based on the fact
           that the confidential informant previously provided
           information leading to fifteen felony drug arrests and
           fourteen convictions. Within the two weeks prior to the
           issuance of the search warrant, the confidential informant
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       made a controlled buy from Appellant at a location other
       than the residence on East 5th Street. Thereafter, the
       confidential informant informed Lt. Nolan that Appellant
       was now dealing drugs out of his current residence at 1015
       East 5th Street. The confidential informant also told Lt.
       Nolan that within the past forty-eight hours, he had been
       in Appellant’s East 5th Street residence and observed
       Appellant in possession of a baggie of crack cocaine and
       [a] small handgun.       Lt. Nolan had the confidential
       informant conduct a controlled buy of crack cocaine from
       Appellant within twenty-four hours prior to the issuance of
       the search warrant.      During the controlled buy, the
       confidential informant observed additional amounts of
       crack cocaine inside Appellant’s residence. Based on the
       above information, Lt. Nolan obtained a search warrant for
       Appellant’s residence as well as his person.

       Prior to executing the search warrant, several other
       officers set up surveillance of Appellant’s residence on East
       5th Street at around 8:00 a.m. Lt. Nolan joined the
       surveillance team at approximately 10:00 a.m. and
       remained there until approximately 12:30 p.m. During
       that time, Lt. Nolan did not observe Appellant entering the
       apartment, though he did see Appellant exit the
       apartment. Lt. Nolan testified that he did not execute the
       search warrant during that time for safety reasons.
       Specifically, Lt. Nolan believed Appellant was also under
       investigation for a drug-related homicide by a different
       police department.

       Accordingly, Lt. Nolan waited for Appellant to exit the
       residence to execute the search warrant.         Thereafter,
       police officers stopped the vehicle in which Appellant was a
       passenger and conducted a search of his person, finding a
       small baggie of crack-cocaine and a digital scale covered in
       crack-cocaine residue. A search of Appellant’s residence
       led to the discovery, in a bedroom, of an estimate for auto
       work, as well as a lease listing Appellant as a tenant. In
       that same bedroom, police discovered various drugs as
       well as a loaded firearm.

       Prior to trial, Appellant filed a motion to suppress the
       evidence discovered on his person and in the residence. In
       his motion, Appellant argued that the search warrant was
       not supported by probable cause, and further that the

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           police exceeded the scope of the search warrant by
           stopping the vehicle in order to search his person. The
           trial court denied the motion to suppress. Following a
           bench trial, Appellant was found guilty of three counts of
           possession of a controlled substance, three counts of
           possession with intent to deliver, possession of drug
           paraphernalia, and two counts of criminal conspiracy. On
           January 11, 2010, Appellant was sentenced to an
           aggregate term of four to fifteen years’ incarceration.

Commonwealth v. Barry- Gibbons, 173 WDA 2010, at *2-4 (Pa. Super.

12/21/2010) (internal citations omitted).        This Court affirmed Appellant’s

judgment of sentence on December 21, 2010.

        Appellant filed a PCRA petition seeking reinstatement of his right to

appeal to the Supreme Court of Pennsylvania nunc pro tunc, which the PCRA

court granted. Appellant filed a petition for allowance of appeal, which the

Supreme Court of Pennsylvania denied on March 14, 2013.

        From April 11, 2013 through July 15, 2013, Appellant sent pro se

filings to the trial court, including a motion for extraordinary relief, a writ of

habeas corpus, and a “motion for Post Conviction Relief Act Discovery Rule

902(e)(1), Pa.R.Crim.Proc.,” which were sent to his attorney.1 On June 3,

2014, Appellant filed a motion entitled “request for a Grazier2 hearing and

in accordance with Faretta v. California.”3          The PCRA court appointed
____________________________________________


1
  The trial court states Appellant also filed a motion for extraordinary relief
on April 11, 2013. However, a copy of this document is not contained in the
certified record, and the docket does not reflect an April 11, 2013 filing.
2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa.1998).
3
    422 U.S. 806, 95 S.Ct. 2525 (2012).



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counsel. On October 10, 2014, counsel filed a supplemental PCRA petition.

On December 22, 2014, the PCRA court held an evidentiary hearing.               On

March 10, 2015, the court denied the PCRA petition.

      Appellant filed a timely notice of appeal. On April 22, 2015, Appellant

filed a concise statement of errors complained of on appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b). On April 23, 2015, the

trial court issued its Rule 1925(a) opinion incorporating its March 10, 2015

opinion and final order.

      Appellant raises the following issue on appeal:

         I. Did the [trial court] commit an abuse of discretion and
         reversible error by failing to grant [Appellant] a new trial
         due to ineffective assistance of trial counsel?

Appellant’s Brief at 1.

      Our standard of review from the denial of post-conviction relief “is

limited to examining whether the PCRA court’s determination is supported by

the   evidence   of   record   and   whether   it   is   free   of   legal   error.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011) (citing

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).

      For ineffective assistance of counsel claims, the petitioner must

establish: “(1) his underlying claim is of arguable merit; (2) counsel had no

reasonable basis for his action or inaction; and (3) the petitioner suffered

actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311

(Pa.2014) (quoting Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.2010)).

“[C]ounsel is presumed to be effective and the burden of demonstrating

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ineffectiveness rests on appellant.”           Ousley, 21 A.3d at 1244 (quoting

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010)).                 “The

failure to prove any one of the three [ineffectiveness] prongs results in the

failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279). “To

demonstrate prejudice, the petitioner must show that ‘there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different.’”          Spotz, 84 A.3d at 312 (quoting

Commonwealth v. King, 57 A.3d 607, 613 (Pa.2012)).                “[A] reasonable

probability is a probability that is sufficient to undermine confidence in the

outcome of the proceeding.” Id. (quoting Commonwealth v. Ali, 10 A.3d

282, 291 (Pa.2014)).

       Appellant first maintains pre-trial counsel4 was ineffective for failing to

present his co-defendant Javon Franklin as a witness at the pre-trial

suppression hearing. Appellant’s Brief at 4.

       To establish an ineffective assistance of counsel claim for failure to call

a witness, the petitioner must prove:            “(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.”

____________________________________________


4
  Appellant was represented by different counsel at the pre-trial and trial
phases of his prosecution.



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Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa.2009) (quoting

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa.2007)).

         At the evidentiary hearing, Appellant and Stephanie Barry testified that

they asked Appellant’s counsel to subpoena Franklin for the pre-trial

hearing, and counsel agreed to do so.        N.T., 12/22/2014, at 5-7, 12-14.

Appellant, Barry, and Franklin stated that Franklin would have testified at

the suppression hearing that the drugs found during the search were his

drugs, not Appellant’s.     Id. 7-8, 13-14, 27. Appellant’s counsel, however,

stated that he did not inform anyone that he would call Franklin and stated

Franklin’s testimony was irrelevant for pre-trial purposes. Id. at 42-43.

         The trial court credited Appellant’s counsel, including his testimony

that he did not inform Appellant that he would subpoena Franklin. Further,

the trial court found counsel had a reasonable basis for not calling Franklin,

i.e.,

           because his proffered testimony had no relevancy at the
           suppression hearing on [Appellant’s] challenge to the
           search warrant (i.e., four corners of the affidavit) or the
           traffic stop.     Rather, Franklin’s testimony involved
           [Appellant’s] defense of lack of culpability, which was a
           trial matter and not cognizable in a suppression hearing.

Opinion and Final Order, 3/10/2015, at 5.         The trial court further found

Appellant was not prejudiced because Franklin testified at trial.        The trial

court did not err in its analysis, and Appellant’s counsel ineffectiveness claim

fails.




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      Appellant next claims trial counsel was ineffective for failing to

interview Appellant until the day before trial, failing to interview trial

witnesses prior to trial, failing to request that the trial judge recuse himself,

and failing to investigate or challenge a discrepancy in the weight of the

drugs at issue. Appellant’s Brief at 5.

      Appellant maintains the PCRA court erred in accepting trial counsel’s

testimony that he spoke with Appellant twice before trial and that he spoke

with trial witnesses, Barry and Franklin, prior to trial. He claims counsel’s

testimony was contradicted by the testimony of Appellant, Barry and

Franklin. Appellant’s Brief at 5. The PCRA court found:

         At the evidentiary hearing, Attorney Williams credibly
         testified that he spoke with [Appellant] on at least two
         prior occasions before trial.        Furthermore, Attorney
         Williams stated that he spoke with both Stephanie Barry
         and Javon Franklin several times before trial, and both
         witnesses testified consistently with what they told him
         during their pre-trial discussions. [Appellant’s] claims that
         Attorney Williams failed to meet with him or speak with his
         witnesses are meritless.

Opinion and Final Order at 6. We are bound by the PCRA court’s credibility

determinations, which are supported by the record. See, e.g., Spotz, 18

A.3d at 259.      The PCRA court did not err in finding counsel was not

ineffective.

      Appellant next maintains trial counsel was ineffective for failing to seek

recusal of the trial judge, who presided over the suppression hearing and the

bench trial.   Appellant’s Brief at 5-6.   The Supreme Court of Pennsylvania

has found a trial judge must recuse only if a defendant demonstrates

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“substantial doubt    as to    the   judge’s ability   to   preside   impartially.”

Commonwealth v. Reyes, 870 A.2d 888, 897-98 (Pa.2005).                  It further

noted that recusal is unnecessary merely because a trial judge was involved

in a pre-trial proceeding.   Id.

      The trial court found:

         [T]he record is devoid of any evidence that [Appellant]
         desired [the trial c]ourt’s recusal or that the [c]ourt was
         unable to preside impartially during the trial. At the
         evidentiary hearing, [counsel] testified that he spoke with
         [Appellant] before trial and at no time did [Appellant]
         request a recusal or jury trial.          [Counsel] advised
         [Appellant] that a non-jury trial before [the trial c]ourt was
         the better option, and [Appellant] agreed.

         Furthermore, similar to Reyes, [the trial c]ourt presided
         over the suppression hearing and [Appellant] informed
         [the trial c]ourt before trial that he desired to proceed non-
         jury before the [c]ourt.         Unlike Reyes, none of the
         evidence was suppressed pre-trial. Nevertheless, at the
         non-jury trial, [counsel] objected to the admission of the
         probable cause section of the warrant as it contained
         information from a third party that would not be testifying.
         [The trial c]ourt admitted the warrant itself and inventory
         but removed Exhibit A (the affidavit) from evidence. [The
         trial c]ourt noted it would not consider the affidavit. [The
         trial c]ourt also informed [Appellant] that although it
         previously reviewed it at the suppression hearing, it would
         not be admissible during a jury trial and therefore, asked
         [Appellant] if he still wanted to proceed non-jury before
         the [c]ourt. [Appellant] noted that he wanted to continue
         before [the trial c]ourt. As there is no evidence that that
         [Appellant] desired [the trial c]ourt's recusal or that the
         [c]ourt was unable to preside impartially during the trial,
         this claim is meritless.

Opinion and Final Order, 3/10/2015, at 7 (internal citations omitted). This

was not error.



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      Appellant’s final claim is that counsel erred in not challenging a

discrepancy in the weight of the drugs at issue. Appellant’s Brief at 5. The

trial court found:

         Regarding a drug weight discrepancy, this matter was
         addressed at the non-jury trial. Before the Commonwealth
         rested, it noted that the criminal information charged
         220.48 grains of cocaine but the total weight was actually
         220.35 grams. As noted by [defense counsel], this was a
         small discrepancy that did not affect its admissibility.
         Accordingly, any claim related to [defense counsel’s]
         ineffectiveness regarding the minimal weight discrepancy
         is meritless.

Opinion and Final Order, 3/10/2015, at 7-8 (internal citations omitted). This

was not error.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2015




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