J-S05039-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF                        :    IN THE SUPERIOR COURT OF
PENNSYLVANIA,                          :          PENNSYLVANIA
                                       :
                Appellee               :
                                       :
          v.                           :
                                       :
LIONEL MONTELL WATTS,                  :
                                       :
                Appellant              :      No. 1362 WDA 2017

                Appeal from the PCRA Order August 23, 2017
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0015439-2010

BEFORE: OLSON, OTT, and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                     FILED APRIL 10, 2018

     Lionel Montell Watts (Appellant) appeals from the order entered August

23, 2017, dismissing his petition filed under the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     The underlying facts of Appellant’s case are as follows.

            On January 27, 2010, at 1:11 p.m. Adam Flint walked from
     his home to the Dairy Mart located on Grant Avenue in Duquesne,
     Allegheny County, Pennsylvania. Outside of the Dairy Mart, Flint
     encountered Appellant who asked him for a cigarette and a light.
     Flint went into the Dairy Mart, made his purchase and left the
     store. He proceeded to Sixth Street to buy a bag [of] marijuana
     and then walked home. Approximately 10-15 minutes later Flint
     received a phone call from his grandfather asking him to go play
     his lottery numbers. Flint left his house by way of Erwin Street,
     turning left on Edith Street and Huckleberry Alley, making a left
     onto Meadow Street up to Grant Street to the Dairy Mart.

           Flint purchased the tickets and proceeded home the same
     way he came. As he did so Flint encountered Appellant who was
     talking on his cell phone. Flint passed Appellant walking in the


* Retired Senior Judge assigned to the Superior Court.
J-S05039-18

     opposite direction down Huckleberry Alley. Appellant turned and
     followed Flint down Huckleberry Alley. When he turned at the
     corner of Edith and Erwin Streets, Appellant said to him, “White
     boy Rick pays good,” and shot Flint in his right arm. Flint turned
     and saw Appellant holding a black semi-automatic weapon and
     immediately fled. Appellant kept shooting at Flint as he ran to the
     left side of Erwin Street in an attempt to hide behind parked cars.
     During this time Flint was shot a second time, the bullet entering
     through his back and exiting out the front of his abdomen. As Flint
     neared 117 Erwin Street he saw Appellant turn and run in the
     opposite direction on Erwin Street making a right onto Edith
     Street. Flint got to his home at 116 Erwin Street where his
     girlfriend called for an ambulance and Flint was transported to a
     hospital.

            Detective Thomas DeFelice, a homicide detective with the
     Allegheny County Police Department, responded to a call for
     assistance from the Duquesne Police. During his investigation of
     the crime scene, Detective DeFelice found bullet damage to homes
     at 101, 103, 107, and 115 Erwin Street. There were 12 shell
     casings found at the scene.

           In reference to Appellant’s statement, “White boy Rick pays
     well,” Flint knew a Rick Jacik with whom he had been in an
     argument ... at a bar. [Flint] robbed Jacik of $1200 with a BB gun
     within a few weeks of this incident. Rick Jacik had shot at [Flint]
     on Kennedy Avenue in Duquesne in January of 2010.

           As a result of being shot twice Flint spent over two months
     in the hospital. In 2010, he was in the hospital for a total of 299
     days. Flint experienced complications that required additional
     medical procedures to implant stents and open up his bile ducts.
     The bullet that entered Flint’s right arm shattered his humerus
     bone. The injury to his arm required the insertion of a steel plate
     and metal rod to stabilize his arm. The bullet that entered Flint’s
     back perforated his liver and exited through the left side of his
     abdomen.

            On February 24, 2010, Detective Zabelsky of the Allegheny
     County Police Department showed Flint several photo arrays,
     however, he was heavily medicated and did not make an
     identification. At that time, due to the serious nature of his
     injuries, Flint was taking Fentanyl, Dilaudid, Demerol and


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      Percocet. Flint had to be restrained to his hospital bed because he
      repeatedly tried to get up as he thought that he was in Las Vegas.

            On July 21, 2010, the victim identified Appellant in a photo
      array and Appellant was arrested and charged [with two counts of
      aggravated assault, and one count each of criminal attempt
      (homicide), carrying a firearm without a license, person not to
      possess a firearm, and recklessly endangering another person].

Commonwealth v. Watts, 82 A.3d 1067 (Pa. Super. 2013) (unreported

memorandum at 1-2) (quoting Trial Court Opinion, 10/26/12, at 4–6).

      Following a trial, the jury found Appellant guilty of the above-referenced

charges. On September 20, 2011, the trial court sentenced Appellant to an

aggregate term of not less than 12 nor more than 24 years of incarceration.

This Court affirmed Appellant’s judgment of sentence on July 16, 2013. Id.

Appellant did not file a petition for allowance of appeal.

      On July 19, 2014, Appellant timely filed pro se a PCRA petition.

Following appointment of counsel, Appellant amended his petition and filed a

motion for discovery. On June 19, 2017, the PCRA court denied Appellant’s

discovery motion. On July 12, 2017, the PCRA court notified Appellant that it

intended to dismiss his petition without a hearing pursuant to Pa.R.Crim.P.

907. Appellant did not file a response. By order of August 23, 2017, the PCRA

court dismissed Appellant’s PCRA petition. Appellant timely filed a notice of

appeal. The PCRA court complied with Pa.R.A.P. 1925 by directing our

attention to its Rule 907 notice. Appellant was not ordered to file, and did not

file, a concise statement of matters complained of on appeal.



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      On appeal, Appellant sets forth two issues.1 In his first issue, Appellant

asks this Court to decide whether the PCRA court abused its discretion by

dismissing the PCRA petition without a hearing, asserting that he properly

established that trial counsel rendered ineffective assistance of counsel when

counsel failed to take action regarding a juror who was sleeping during trial.

Appellant’s Brief at 6.

      “On review of orders denying PCRA relief, our standard is to determine

whether the PCRA court’s ruling is free of legal error and supported by the

record.” Commonwealth v. Boyer, 962 A.2d 1213, 1215 (Pa. Super. 2008).

Because Appellant challenges the actions of trial counsel, we observe the

following.

         It is well-established that counsel is presumed to have
         provided effective representation unless the PCRA petitioner
         pleads and proves all of the following: (1) the underlying
         legal claim is of arguable merit; (2) counsel’s action or
         inaction lacked any objectively reasonable basis designed to
         effectuate his client’s interest; and (3) prejudice, to the
         effect that there was a reasonable probability of a different
         outcome if not for counsel’s error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.




1
 Appellant also sets forth an additional issue regarding whether his claims are
cognizable under the PCRA. It is unclear why Appellant did so, as the PCRA
court properly analyzed his claims under the PCRA, and Appellant and the
Commonwealth agree that Appellant’s claims are cognizable under the PCRA.
See PCRA Court Opinion, 12/12/2017, at 1-2; Appellant’s Brief at 15-16;
Commonwealth’s Brief at 15-18.
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Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (internal

citations omitted).

      Appellant contends juror number 9 was sleeping during the direct

testimony of Detective Zabelsky, whose testimony was pivotal because it

concerned the identification of Appellant by the alleged victim. Appellant’s

Brief at 18. Appellant argues that his trial counsel was ineffective because he

did not move for the trial court to question the sleeping juror or request that

the court remove and replace the sleeping juror with an alternate juror. Id.

at 16. According to Appellant, he was prejudiced by the sleeping juror because

“the juror had to rely on the recollection, analysis and weighing of the

Commonwealth’s evidence by the other jury members.” Id. at 18.

      The record reveals the following exchange at trial. While at sidebar on

another issue following the testimony of Commonwealth witness Detective

Zabelsky, Appellant’s trial counsel informed the court that “juror number … 9

is having a real hard time staying awake.” N.T., 6/20/2011, at 144. The trial

court responded, “All right. Let’s keep our eye on that person,” and adjourned

for a recess. Id. at 145. No further discussion regarding juror number 9 took

place on the record.

      Despite Appellant’s assertion that juror number 9 was asleep and did

not hear the testimony of Detective Zabelsky, the discussion on the record

does not establish that juror number 9 actually fell asleep or was asleep for a

substantial period.    Moreover, even if Appellant were to establish at an


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evidentiary hearing that the juror was sleeping during Detective Zabelsky’s

testimony, Appellant would not be able to “demonstrate that but for the

sleeping juror, the outcome of the trial would have been different.”

Commonwealth v. Lawson, 762 A.2d 753, 757–58 (Pa. Super. 2000). As

in Lawson, the Commonwealth presented ample evidence to convict

Appellant, including the testimony of Flint.

       Specifically, Flint identified Appellant in court as the person who shot

him.    N.T., 6/20/2011, at 63.      He also testified directly regarding his

opportunity to view Appellant at the scene and his identification of Appellant

in the photo array Detective Zabelsky showed him on July 21, 2010. Id. at

62-70, 76-77, 79-83.     Flint described his heavily medicated condition on

February 24, 2010, the day Detective Zabelsky first showed him a photo array,

and acknowledged his failure to identify Appellant in that array. Id. at 75-76.

On cross-examination, Flint conceded that despite his seeing double when he

was shown the February 24, 2010 photo array, he was still able to identify

Rick Jacik in the photo array. Id. at 85-87. Detective Zabelsky’s testimony

was largely cumulative of Flint’s. See id. at 123-40 (recounting Flint’s poor

condition on February 24, 2010, Flint’s failure to identify Appellant on February

24, 2010, Flint’s identification of Jacik on February 24, 2010, and Flint’s

identification of Appellant on July 21, 2010). Thus, even if juror number 9

was sleeping during Detective Zabelsky’s testimony, Appellant cannot




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establish prejudice by his counsel’s failure to address further the conduct of

juror number 9.

      In his second issue, Appellant argues that the PCRA court abused its

discretion by denying his motion for discovery during the PCRA proceedings.

Appellant’s Brief at 6. This Court has summarized the law regarding discovery

requests in PCRA proceedings as follows.

            In PCRA proceedings, discovery is only permitted upon leave
      of court after a showing of exceptional circumstances. 42
      Pa.C.S.[] § 9545(d)(2); Pa.R.Crim.P. 902(E)(1). The PCRA and
      the criminal rules do not define the term “exceptional
      circumstances.” Rather, it is for the trial court, in its discretion, to
      determine whether a case is exceptional and discovery is therefore
      warranted.

            We will not disturb a court’s determination regarding the
      existence of exceptional circumstances unless the court abused its
      discretion. An abuse of discretion is not a mere error in judgment.
      Instead, it is a decision based on bias, ill will, partiality, prejudice,
      manifest unreasonableness, or misapplication of law. Moreover, …
      the appellant has the duty to convince us an abuse occurred.

Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012) (some citations

omitted).

      The specific discovery sought by Appellant in his motion was an

“investigation and review of ballistics evidence, in the possession of,

maintained or stored by the District Attorney’s Office of Allegheny County, the

Allegheny County Crime Lab, prosecutors and/or any of the police officers,

detectives, police stations, interns, investigators or other agents of the

Commonwealth who were involved in [Appellant’s] case….”                  Motion for

Discovery, 4/12/2017, at ¶ 4.        On appeal, Appellant specifies that he is

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seeking “leave of court to have the ballistics evidence tested for fingerprints.”

Appellant’s Brief at 23.

      Appellant argues that the PCRA court abused its discretion by denying

his motion for discovery during the PCRA process because exceptional

circumstances warranted such discovery.           Appellant’s Brief at 19-23.

According to Appellant, this case “hinged on highly contested identification

evidence” and fingerprint testing of cartridges found at the scene could have

revealed prints belonging to someone other than Appellant. Id. at 19-20.

      Appellant’s original discovery request was premised upon his allegation

that the Commonwealth withheld exculpatory evidence in violation of Brady

v. Maryland, 373 U.S. 83 (1963), by not disclosing testing of the cartridges

and/or his allegation that counsel rendered ineffective assistance of counsel.

Motion for Discovery, 4/12/2017, at ¶ 4.           Appellant admits that the

Commonwealth never tested the cartridges for fingerprints and has

abandoned his Brady claim. Appellant’s Brief at 22-23. Therefore, the only

purpose of the discovery request would be to establish that his trial counsel

rendered ineffective assistance of counsel by stipulating to the crime lab report

regarding 12 spent 9 millimeter cartridge casings found at the scene of the

shooting and not moving the court to have an expert examine the cartridges

for the presence of fingerprints. Id. at 11-22. According to Appellant, if the

cartridges contained fingerprints that did not belong to him, it could have

“benefited [his] defense.” Id. at 22.


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      However,    Appellant   has   waived    any   claim   regarding    counsel’s

ineffectiveness as to the cartridges, as such a claim was neither presented in

the statement of questions involved in his brief nor fairly suggested thereby.

See Pa.R.A.P. 2116(a) (“The statement of the questions involved must state

concisely the issues to be resolved…. No question will be considered unless it

is stated in the statement of questions involved or is fairly suggested

thereby.”).

      Even if he had not waived his ineffectiveness claim regarding the

cartridges, Appellant cannot establish that he was prejudiced by the

stipulation of the report and the failure to investigate whether the cartridges

contained fingerprints.     The absence of Appellant’s fingerprints on the

cartridges is not exculpatory per se. See Commonwealth v. Wright, 388

A.2d 1084, 1086 (Pa. Super. 1978) (“[T]he absence of appellant’s fingerprints

is not exculpatory per se and might be explained [by] any one of many reasons

consistent with his guilt.”). Here, Flint identified Appellant in both out-of-court

and in-court identifications, which were made after an opportunity to view

Appellant during several encounters. Thus, even if counsel had discovered

that the cartridges did not contain Appellant’s fingerprints and/or contained

someone else’s fingerprints, a different outcome at trial is still not reasonably

probable.

      Based on the foregoing, because Appellant has waived the underlying

claim upon which his request for discovery would be based, and alternatively


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because he was not prejudiced by counsel’s alleged ineffectiveness, Appellant

is due no relief on his discovery request. Furthermore, a fishing expedition

for potentially exculpatory evidence is not sufficient to establish exceptional

circumstances warranting discovery, particularly when no facts of record

reasonably support the belief that the requested discovery may lead to

evidence exculpating Appellant. Frey, 41 A.3d at 612. Accordingly, Appellant

has failed to convince us that the PCRA court’s determination that exceptional

circumstances did not exist was “based on bias, ill will, partiality, prejudice,

manifest unreasonableness, or misapplication of law.” Id. at 611.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2018




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