J-S07004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

VICTOR HARRIS,

                          Appellant                  No. 1211 EDA 2017


            Appeal from the PCRA Order Entered March 13, 2017
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0005222-2013


BEFORE: BENDER, P.J.E. , PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                           FILED MAY 07, 2018

      Appellant, Victor Harris, appeals from the post-conviction court’s March

13, 2017 order denying his first, timely petition under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant presents one claim,

alleging that his trial counsel was ineffective for failing to investigate and

interview the confidential informant (CI) in this case. After careful review, we

affirm.

      This Court previously set forth the following summary of the procedural

and factual history of Appellant’s underlying conviction:

            On October 23, 2012, Bensalem Police Officers conducted a
      controlled buy of narcotics from [Appellant]. A [CI] was utilized
      to purchase seven bags of cocaine for $80.00.

            Arrangements were made for [Appellant] to sell the [CI]
      cocaine at the Stadium Bar in Bensalem, Bucks County,
      Pennsylvania. Bensalem Police Sergeant Busch and Officers Smith
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        and Brady conducted the surveillance concerning the transaction.
        Officer Brady testified that he observed [Appellant] hand a plastic
        bag to the [CI]. The [CI], in exchange, was observed counting
        and handing cash to [Appellant].

              After the transaction, Officer Brady maintained visual
        contact with the [CI]. They met in a secluded area of the parking
        lot and the [CI] handed the bags containing white powder to
        Officer Brady and returned $120.00 of the pre-recorded ‘buy’
        money.

              The bags were submitted to the Bucks County Crime Lab for
        analysis. The lab determined that the bags contained 1.83 grams
        of cocaine. On October 7, 2013, the case proceeded to trial.
        [Appellant] raised a single pre-trial motion to disclose the identity
        of the [CI]. The motion was denied[,] as [Appellant] readily
        admitted he already knew the identity of the [CI], but insisted on
        confronting and cross-examining this person. The Commonwealth
        elected to proceed to trial with[out] calling the [CI] as a witness.

              The jury returned a verdict of guilty as to the lone count of
        the Criminal Information, Delivery of a Controlled Substance.[1] A
        Pre-Sentence Report was ordered and on December 15, 2013,
        [Appellant] was sentenced to not less than three and one half nor
        more than seven years in a State Correctional Institution.

Commonwealth v. Harris, No. 605 EDA 2014, unpublished memorandum at

1-2 (Pa. Super. filed Jan. 16, 2015) (quoting Trial Court Opinion, 5/9/14, at

1-2).

        Appellant filed a direct appeal with this Court, and we affirmed. See

Harris, supra. He did not file a petition for allowance of appeal with our

Supreme Court. Instead, he filed a PCRA petition on June 10, 2015. Counsel

was appointed and an amended petition was filed on Appellant’s behalf raising

several claims of trial counsel’s ineffectiveness. On December 19, 2016, a


____________________________________________


1   35 P.S. § 780-113(a)(30).

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PCRA hearing was conducted, at which trial counsel testified. On March 13,

2017, the PCRA court issued an order denying Appellant’s petition.

      Appellant filed a timely notice of appeal, and he also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) statement. Herein, he

presents one issue for our review: “Was trial counsel ineffective when he failed

to interview the [CI], whose identity was known to [Appellant] and counsel,

when he was an eyewitness and allegedly had exculpatory evidence?”

Appellant’s Brief at 3.

      We begin by recognizing that “[t]his Court’s standard of review from the

grant or denial of post-conviction relief is limited to examining whether the

lower court’s determination is supported by the evidence of record and

whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d 516,

520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4

(Pa. 1995)). Where, as here, a petitioner claims that he received ineffective

assistance of counsel, our Supreme Court has directed that the following

standards apply:

      [A] PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence
      resulted from the “[i]neffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
      “Counsel is presumed effective, and to rebut that presumption,
      the PCRA petitioner must demonstrate that counsel’s performance
      was deficient and that such deficiency prejudiced him.”
      [Commonwealth v.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,]
      886 [(Pa. 2010)] (citing Strickland[ v. Washington, 104 S.Ct.
      2053 (1984)]). In Pennsylvania, we have refined the Strickland


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      performance and prejudice test into a three-part inquiry. See
      [Commonwealth v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa.
      1987)]. Thus, to prove counsel ineffective, the petitioner must
      show that: (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. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291 (2010).
      “If a petitioner fails to prove any of these prongs, his claim fails.”
      Commonwealth v. Simpson, [620] Pa. [60, 73], 66 A.3d 253,
      260 (2013) (citation omitted). Generally, counsel’s assistance is
      deemed constitutionally effective if he chose a particular course of
      conduct that had some reasonable basis designed to effectuate his
      client’s interests. See Ali, supra. Where matters of strategy and
      tactics are concerned, “[a] finding that a chosen strategy lacked
      a reasonable basis is not warranted unless it can be concluded
      that an alternative not chosen offered a potential for success
      substantially greater than the course actually pursued.” Colavita,
      606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks
      omitted). 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.” Commonwealth v. King, 618 Pa. 405, 57 A.3d
      607, 613 (2012) (quotation, quotation marks, and citation
      omitted). “‘[A] reasonable probability is a probability that is
      sufficient to undermine confidence in the outcome of the
      proceeding.’” Ali, 608 Pa. at 86–87, 10 A.3d at 291 (quoting
      Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244
      (2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

      Presently, Appellant maintains that his trial counsel was ineffective for

failing to investigate and interview the CI in this case. In regard to this specific

type of ineffectiveness claim, our Court has elucidated:

      Neglecting to call a witness differs from failing to investigate a
      witness in a subtle but important way. The failure to investigate
      presents an issue of arguable merit where the record
      demonstrates that counsel did not perform an investigation. It
      can be unreasonable per se to conduct no investigation into known
      witnesses.    Importantly, a petitioner still must demonstrate
      prejudice. To demonstrate prejudice where the allegation is the


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      failure to interview a witness, the petitioner must show that there
      is a reasonable probability that the testimony the witness would
      have provided would have led to a different outcome at trial.

             In this respect, a failure to investigate and interview a
      witness claim overlaps with declining to call a witness since the
      petitioner must prove: (i) the witness existed; (ii) the witness was
      available to testify; (iii) counsel knew of, or should have known
      of, the existence of the witness; (iv) the witness was willing to
      testify; and (v) the absence of the testimony was so prejudicial as
      to have denied the defendant a fair trial.

Commonwealth v. Pander, 100 A.3d 626, 638–39 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

      In this case, Appellant maintains that he has established arguable merit

to his ineffectiveness claim because his trial counsel failed to interview or

investigate the CI. He further avers that “trial counsel was unreasonable per

se when he determined that he would not call [the CI] to testify at trial without

conducting an investigation and interviewing him.” Appellant’s Brief at 15.

According to Appellant, counsel decided not to call the CI to the stand at trial

directly   after   the   preliminary   hearing,   which   was   “premature   and

uninformed[,]” considering that counsel had not interviewed the CI. Id. at

17. In regard to prejudice, Appellant stresses that “virtually the only issue [at

his trial was] the credibility of the Commonwealth witnesses versus that of

[Appellant],” and therefore, “counsel’s failure to explore all alternatives

available to assure that the jury heard the testimony of a known witness who

might be capable of casting a shadow upon the Commonwealth witnesses’

truthfulness is ineffectiveness of counsel.” Id. Appellant maintains that, even

if counsel believed the CI would be ‘hostile’ to the defense, “there was no risk


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in interviewing [the CI] to determine how the operation was planned, if he

had additional information that had not been disclosed by the Commonwealth,

and if his and [Appellant’s] accounts of what transpired inside the bar were

substantially similar.” Id. at 17-18.

       Initially, we agree with the Commonwealth that the record does not

support Appellant’s assertion that counsel failed to investigate the CI. At the

PCRA hearing, trial counsel testified that Appellant told him who the CI was,

and provided him with the CI’s phone number. N.T. PCRA Hearing, 12/19/16,

at 38, 39. Counsel called the CI, who told counsel “not to bother him.” Id.

at 38.2 During the call, the CI also informed counsel that he was not going to

testify, and that “[h]e wasn’t going to do anything for [Appellant].” Id. at 39,

40.     Nevertheless,      counsel    filed    a   pretrial   motion   to   compel   the

Commonwealth to disclose the identity of the CI so counsel could verify that

the person named by Appellant was actually the CI, see id. at 38, and to

discover the location of the CI and “his criminal history[,]” N.T. Pretrial

Hearing at 7. However, counsel’s pretrial motion was denied.


____________________________________________


2 Appellant suggests that counsel’s testimony that he spoke to the CI was not
credible, because counsel stated at the hearing on Appellant’s pretrial motion
to reveal the CI’s identity that he did not have the CI’s contact information.
However, as the Commonwealth points out, at the pretrial hearing, counsel
also informed the court that he and Appellant had had contact with the CI
“[u]p until January [of 2013]” but after that point, the contact had ended and
he no longer knew where the CI was located. N.T. Pretrial Hearing, 10/7/13,
at 7. Thus, counsel’s testimony at the PCRA hearing that he spoke to the CI
at some unidentified time was not contradicted by his comments at the pretrial
hearing.

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      Based on this record, it is apparent that trial counsel did conduct an

investigation of the CI, discovering that the CI was not willing to talk to

counsel or testify at trial on Appellant’s behalf. Counsel then filed a pretrial

motion in an effort to obtain more information about the CI, but that motion

was denied.    These actions by trial counsel demonstrate that there is no

arguable merit to Appellant’s claim that counsel failed to investigate the CI.

      In any event, we would also conclude that Appellant has not established

that he was prejudiced by trial counsel’s conduct.          Notably, Appellant

subpoenaed the CI to testify at the PCRA hearing, but the CI failed to appear.

N.T. PCRA Hearing at 19-20. Additionally, Appellant does not explain what

testimony the CI would have offered at trial, nor discuss how that testimony

would have changed the jury’s verdict. Therefore, Appellant has not “show[n]

that there is a reasonable probability that the testimony [the CI] would have

provided would have led to a different outcome at trial.” Pander, 100 A.3d

at 639.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/7/18




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