J-A24017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

MICA HORATIO DAWKINS

                         Appellant                    No. 1206 WDA 2016


              Appeal from the PCRA Order Dated July 22, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0001772-2013

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                       FILED NOVEMBER 07, 2017

      Appellant, Mica Horatio Dawkins, appeals from the order dismissing his

first petition filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§   9541-9546.     Appellant   raises   a   single   issue   of   trial   counsel’s

ineffectiveness. We affirm.

      The PCRA court summarized the procedural history of this case as

follows:

            On February 26-27, 2014, Appellant appeared before the
      Trial Court for a jury trial, at the conclusion of which the jury
      found Appellant guilty of possession with intent to deliver heroin,
      two counts of possession of [a] controlled substance, and
      possession of drug paraphernalia; Appellant was found not guilty
      of possession of instruments of crime and criminal conspiracy.

            On May 13, 2014, Appellant was sentenced by the Trial
      Court to five to ten years[’] incarceration for possession with
      intent to deliver.  Appellant did not file any post sentence
      motions.
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              On March 11, 2015, Appellant filed a pro se motion to
       vacate illegal sentence.     Counsel was appointed, and on
       February 3, 201[6], Appellant filed a Post-Conviction Relief Act
       Petition. The Commonwealth filed its Answer on February 23,
       2016. On June 21, 2016, the Trial Court granted Appellant’s
       petition in part and sentenced Appellant to a new sentence [of
       two and a half to five years’ incarceration]. On June 22, 2016,
       the Trial Court filed a notice of intent to dismiss Appellant’s
       remaining PCRA claims, and denied the remainder of the PCRA
       Petition on July 2[2], 2016.

PCRA Ct. Op., 2/21/17, at 3.1

       On August 12, 2016, Appellant filed a timely appeal in which he raises

the following issue:

       Whether the trial court erred in denying Appellant’s Post-
       Conviction Relief Act Petition without a hearing because trial
       counsel provided ineffective assistance of counsel for not
       objecting when [the] assistant district attorney incorrectly
       argued in [his] opening statement that the Appellant admitted to
       possessing heroin with intent to deliver when no such admission
       was uttered.

Appellant’s Brief at 4.

       “Our standard of review of a PCRA court’s dismissal of a PCRA petition

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

by the evidence of record and free of legal error.”        Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc), appeal denied,

839 A.2d 352 (Pa. 2003).            The PCRA court has discretion to dismiss a

petition without a hearing when the court is satisfied that there are no

genuine issues concerning any material fact, the petitioner is not entitled to
____________________________________________
1
  The Honorable Edward J. Borkowski, sitting as the PCRA court, also
presided at Appellant’s jury trial.


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post-conviction collateral relief, and no legitimate purpose would be served

by further proceedings. Commonwealth v. Blakeney, 108 A.3d 739, 750

(Pa. 2014).   To obtain a reversal of a PCRA court’s decision to dismiss a

petition without a hearing, an appellant must show that he raised a genuine

issue of fact which, if resolved in his favor, would have entitled him to relief,

or that the court otherwise abused its discretion in denying a hearing. Id.

      Further, the law presumes counsel has rendered effective assistance.

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

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the

particular course of conduct pursued by counsel did not have some

reasonable basis designed to effectuate his interests; and (3) but for

counsel’s ineffectiveness, there is a reasonably probability that the outcome

of the challenged proceedings would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      Appellant argues that the PCRA court erred in failing to grant him a

hearing because his claim of trial counsel’s ineffectiveness had arguable

merit.   Appellant’s Brief at 11.     Specifically, Appellant asserts that trial

counsel was ineffective for “failing to object and move for a mistrial when


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the assistant district attorney misspoke in his opening statement and stated

that the Appellant admitted ownership of the heroin and body vest that was

recovered.” Id. at 11, 14, citing N.T., 2/26-27/14, at 22. Appellant claims

that because there was no testimony or evidence presented at trial that he

admitted to possessing the heroin, he was prejudiced by the statement of

the assistant district attorney, and without the statement, the “the outcome

of Appellant’s case would have been different as the jury would not have had

a fixed bias or hostility towards the Appellant at the outset of the case.” Id.

at 17.

         In response, both the PCRA court and Commonwealth argue that

Appellant was not entitled to a hearing or post-conviction relief because the

assistant district attorney never stated that Appellant admitted to possessing

heroin.     PCRA Ct. Op., 2/21/17, at 9; Commonwealth Brief at 7-9.          The

PCRA court, which – as noted above – also sat as the trial court, explained:

               Appellant     misstates the record in claiming that the
         Commonwealth       stated Appellant admitted to possessing heroin
         with intent to     deliver during the opening statement.      The
         relevant portion   of the opening statement reads as follows:

                    Based on the testimony that you hear and the
              evidence that you see introduced, you should find beyond
              a reasonable doubt that the defendant and Mr. Nelson
              were engaged in heroin trafficking, that they possessed
              the heroin with intent to deliver and not for personal use,
              that the cash found in the safe and in the apartment were
              proceeds of drug dealing activity, that the defendant
              possessed body armor. You will hear testimony that he
              admitted that the vest was his in conjunction with the
              felony of possessing the heroin with intent to deliver.
              Based on all of this testimony, you should be able to find


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            beyond a reasonable doubt that the defendant committed
            the crimes charged.

     (T.T. 22). The Commonwealth properly made an argument
     based on the evidence to be presented at trial that the jury
     should find Appellant guilty of possessing heroin with intent to
     deliver. The only admission which the assistant district attorney
     ascribed to Appellant was ownership of the vest. The assistance
     district attorney went on to argue that Appellant possessed that
     vest as part of his drug dealing behavior, and based on the
     evidence to be presented the jury should find Appellant guilty.
     These statements were not objectionable, and counsel will not
     be deemed ineffective for failing to raise a meritless objection.
PCRA Ct. Op., 2/21/17, at 9.

     We have reviewed the notes of testimony and agree that Appellant is

not entitled to relief. At the outset, we note that in addressing the jurors

prior to trial, the trial court advised, “[a]s I already alluded to, the

statements and arguments of the attorneys are not made under oath and

although they are made in good faith, they are not evidence in the case.”

N.T., 2/26-27/14, at 15. The assistant district attorney’s opening remarks

followed.   For clarity and context, we set forth the assistant district

attorney’s entire opening statement below:

          Thank you, Your Honor.          May it please the Court,
     [Appellant’s Counsel], ladies and gentlemen of the jury.

            The purpose of my opening statement is basically to give
     you a short roadmap of where a trial will go so you are not
     totally in the dark. You’ve heard the charges. It is a heroin
     case. The defendant was on probation back in November of
     2012. His probation officer went to his house for a routine visit.
     Nobody was home. The house is located in Wilmerding.

           As they are leaving the front door, the defendant pulls up
     driving the car. The defendant’s license is under suspension. He


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     is not permitted to drive a car. They have a conversation with
     him. There is a passenger in the front passenger seat. The
     passenger, Mr. Nelson, goes on into the house.

            During the course of the conversation with [Appellant], the
     defendant, they recover in the car a paper bag. In that bag is a
     plastic baggie with a quantity of white powder. Also in that
     baggie are four cardboard boxes each of which are full of what
     you will be hearing described as stamp bags. These were black
     – if you ever bought stamp bags at the Post Office, they hand
     them to you in glassine envelopes with frosted paper. This is the
     sort of paper but it was black. There were 2,400 of these stamp
     bags, 600 per bag.

           They go into the house. They go up the stairs to the
     bedroom. They find Mr. Nelson in one of the bedrooms and
     along with Mr. Nelson they recover a black jacket with red
     sleeves which the probation officer seen [sic] the defendant
     wearing a very similar looking jacket in the past. In the pocket
     of that jacket is just a little over two ounces of cocaine, 59.9
     grams – I’m sorry, of heroin – I’m sorry, 59.9 grams of heroin in
     one package. Mr. Nelson is taken into custody. [Appellant] is
     taken into custody.

            In that room that is identified as [Appellant’s] bedroom,
     they see a piece of body armor, a bulletproof vest. There is a
     safe that [Appellant] provides the combination to open. Inside
     the safe is $15,207 in cash. There is another $1,250 in cash in a
     drawer. [Appellant] has been under probation supervision for –
     I think it was at least a year. The probation officer is going to
     tell you that during that period of time [Appellant] did not have a
     job. You will also learn that the vast bulk of that money was in
     twenty dollar bills. There were 590 twenty dollar bills and 122
     ten dollar bills.

            There will be a stipulation that whoever possessed this
     heroin possessed it with the intent to deliver. It wasn’t for their
     own use. This is a massive quantity of heroin. You will hear
     testimony when broken down into the individual stamp bags,
     given that quantity of heroin, you would have roughly 2,900
     individual stamp bags, individual dosage units of heroin that is
     used on the average.




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J-A24017-17


             Based on the testimony that you hear and the evidence
      that you see introduced, you should find beyond a reasonable
      doubt that [Appellant] and Mr. Nelson were engaged in heroin
      trafficking, that they possessed the heroin with the intent to
      deliver and not for personal use, that the cash found in the safe
      and in the apartment were the proceeds of drug dealing activity,
      that [Appellant] possessed body armor.          You will hear
      testimony that he admitted that the vest was his in
      conjunction with the felony of possessing the heroin with
      the intent to deliver. Based on all of this testimony, you
      should be able to find beyond a reasonable doubt that
      [Appellant] committed the crimes charged.

N.T., 2/26-27/14, at 19-22 (emphasis added).

      At trial, the Commonwealth called six witnesses, including Appellant’s

probation officer, Mark Wilner.   Mr. Wilner testified to completing a “walk-

through” of Appellant’s bedroom, where he saw “in an open closet a bullet

resistant vest and a safe.”   N.T., 2/26-27/14, at 49.    Mr. Wilner said he

recognized the vest because he wore one “for his daily duties at work.” Id.

He testified that Appellant admitted to owning the vest. Id. at 50. He also

testified that Appellant stated he didn’t have the key for the safe, but knew

the combination and provided it to Mr. Wilner. Id. at 51. When Mr. Wilner

used the combination to open the safe, he found a “large amount of U.S.

currency” which he turned over as evidence. Id.     As Appellant emphasizes,

no testimony or evidence indicated that Appellant admitted to possessing

heroin. Appellant did not testify, nor did he call any witnesses to testify in

his defense.

      On this record, we find no merit to Appellant’s argument that he was

prejudiced by trial counsel’s failure to object to the statement of the

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J-A24017-17


assistant district attorney during the opening remarks. First, the trial court

cautioned the jury that remarks by the attorneys “are not evidence.” N.T.,

2/26-27/14, at 15. A jury is presumed to follow the trial court’s instructions.

See, e.g., Commonwealth v. Spotz, 716 A.2d 580, 587 (Pa. 1998).

      Second, considered in context, the one sentence of the opening

argument to which Appellant objects did not say that Appellant admitted

possessing heroin.    After the prosecutor noted that Appellant possessed

body armor, he added that Appellant “admitted that the vest was his.” The

rest of the sentence at issue says that the admission was made “in

conjunction with” the felony proceedings regarding heroin possession.        It

does not say that Appellant admitted to possessing the heroin, and we do

not believe it reasonably could have been construed in that manner.

Moreover, even if, as Appellant argues, the jury somehow may have

interpreted the sentence differently, the evidence subsequently introduced

by the Commonwealth demonstrated that Appellant admitted only to

possessing the bullet resistant vest.

      Finally, the Commonwealth, through its six witnesses, presented

ample inculpatory evidence. The record thus does not show prejudice or a

reasonable probability of a different outcome had counsel objected to the

assistant district attorney’s statement.      See Commonwealth v. Pierce,

527 A.2d 973, 977 (Pa. 1987) (a defendant raising claim of ineffective

assistance of counsel is required to show actual prejudice — that is, that


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J-A24017-17


counsel’s    conduct    “had    an    adverse    effect   on   the   outcome   of   the

proceedings”). In rejecting a claim for post-conviction relief, the Supreme

Court in Pierce reasoned:

       Even if [the claimed error had merit], we cannot see how it
       affected the outcome of the trial. The uncontradicted, properly
       admitted evidence of Appellant’s guilt was overwhelming, and we
       can find no reasonable probability that [but for the claimed
       error], the result would have been different. Since the prejudice
       question is resolvable, we need not even consider whether
       counsel’s [actions] had a reasonable basis, and the
       ineffectiveness claim can be dismissed.

Id. (emphasis in original).        The Pierce reasoning similarly applies to this

case.2   Because there is no merit to Appellant’s claim for post-conviction

relief, we affirm the order of the PCRA court.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2017




____________________________________________
2
  From our reading of the record as a whole, it is likely that if Appellant’s
counsel had objected, the assistant district attorney would have rephrased
his statement to clarify that Appellant admitted to possessing the bullet
resistant vest, but not the heroin.


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