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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

MALIK SUMMERS,

                           Appellant                  No. 2312 EDA 2014


                  Appeal from the PCRA Order July 18, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001615-2008


BEFORE: BOWES, PANELLA, AND FITZGERALD, *JJ.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 16, 2015

       Malik Summers appeals from the July 18, 2014 order denying him

PCRA relief. We reverse and remand for an evidentiary hearing as to one of

Appellant’s claims.

       In a criminal case not involved in this appeal, CP-51-CR-1614-2008,

Appellant was charged with numerous offenses, including attempted murder,

aggravated assault, robbery, and possession of a firearm by a prohibited

person.    At this criminal action, Appellant was accused of possession of a

controlled substance with intent to deliver (“PWID”) and possession of drug

paraphernalia. The two cases were consolidated for trial and arose from the

following events.     On August 28, 2007, Granville Jones, a drug dealer,

arranged to meet Appellant so that Appellant could buy drugs.      Appellant


*
    Former Justice specially assigned to the Superior Court.
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had purchased cocaine from Jones four or five previous times.      Appellant

entered Jones’ car, and the duo traveled to a secluded location to

consummate the drug transaction. Jones handed Appellant nine ounces of

cocaine and then turned his head toward a noise outside the car. Instead of

paying Jones for the drugs, Appellant retrieved a gun while Jones was

distracted, and then shot him six times before fleeing on foot. Jones was

able to drive to a nearby police station and was taken to a hospital, where

he remained for two months.

     Two days later, on August 30, 2007, Jones gave police a description of

his assailant and reported that the perpetrator’s sister and possibly the

perpetrator himself lived in a beige or yellow house located at the corner of

20th and Somerset Streets. Detectives canvassed the area and discovered a

house matching that description at 2001 West Indiana Avenue, which was on

the corner of 20th Street and Indiana Avenue. They surveilled the residence,

and saw a man meeting the description of Jones’ assailant entering and

exiting it. Police showed Jones a picture of the house, and he reported that

it was where Jones believed Appellant lived.

     The afternoon of August 30, 2007, police executed a search warrant at

that location. They found nearly eighty grams of crack cocaine, about 124

grams of powdered cocaine, and drug-dealing paraphernalia.        Appellant,

three women, and children were present when police arrived with the

warrant.   Appellant admitted that he had a key to 2001 West Indiana

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Avenue, which was either owned or rented by his sister. After the warrant

was executed, Jones was shown a photographic array containing Appellant’s

picture, and Jones identified Appellant as his assailant.

      At the conclusion of trial, on January 22, 2009, a jury convicted

Appellant of PWID and possession of drug paraphernalia in this case, but

was unable to reach a unanimous verdict in the other action. Our review of

the docket sheet of CP-51-CR-0001614-2008, which is a public record,

reveals that on March 30, 2009, a jury acquitted Appellant therein. On April

3, 2009, the court imposed a sentence of nine to eighteen years

imprisonment in this matter. On appeal, we rejected Appellant’s assertion

that the evidence was insufficient to establish that he constructively

possessed the drugs found in 2001 West Indiana Avenue, and we affirmed.

Commonwealth v. Summers, 11 A.3d 1006 (Pa.Super. 2010).                       Our

Supreme Court denied review on March 1, 2011.               Commonwealth v.

Summers, 17 A.3d 1254 (Pa. 2011).

      Appellant filed a timely PCRA petition, counsel was appointed, and

counsel filed an amended petition.      On July 18, 2014, that petition was

denied without a hearing, and this appeal followed. Appellant raises these

issues:

      A. Whether the Appellant claims that the PCRA court erred in
      denying the Appellant’s PCRA petition where trial counsel was
      ineffective for failing to present several critical fact witnesses on
      his behalf who would have been able to testify regarding his



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      non-ownership of the drugs that were recovered from a house
      where he was staying?

      B. Whether the Appellant claims that the PCRA court erred in
      denying the appellant’s PCRA petition where the mandatory
      sentencing scheme violated his fundamental right to have each
      and every element of the crime proved beyond a reasonable
      doubt?

      C. Whether the Appellant claims that the PCRA court erred in
      denying the appellant’s PCRA petition where trial counsel failed
      to file a severance motion in this matter?

Appellant’s brief at 5.

      Initially, we recite our standard or review herein.        “As a general

proposition, we review a denial of PCRA to determine whether the findings of

the PCRA court are supported by the record and free of legal error.”

Commonwealth v. Treiber, 2015 WL 4886374, 3 (Pa. 2015).                Appellant

first seeks either a new trial or remand on the basis that trial counsel was

ineffective for failing to call as witnesses two people, his sister and her

friend, Nicole Lancaster.    Appellant avers that both women “would have

testified that the drugs” found in the house “did not belong to the Petitioner

but another person and that Petitioner did not live in the house.” Appellant’s

brief at 12. In order to establish that trial counsel was ineffective for failing

to either present or investigate a witness for purposes of trial, a PCRA

petition 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



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the testimony was so prejudicial as to have denied the defendant a fair

trial.”    Commonwealth v. Pander, 100 A.3d 626, 639 (Pa.Super. 2014)

(en banc).

          The PCRA court refused to hold an evidentiary hearing because

Appellant      did   not   provide   affidavits   from   the   two   women.    The

Commonwealth parrots this position, which we reject.                 In Pander, we

specifically held that the fact that the defendant did not provide affidavits

from the witnesses whom defendant claimed counsel should have called was

not fatal to his claim.      We ruled that as long as the defendant provides

certifications, even if those documents are authored by the defendant, the

defendant may be facially entitled to an evidentiary hearing on his PCRA

claim. Therein, we applied 42 Pa.C.S. § 9545(d)(1), which expressly states:

“Where a petitioner requests an evidentiary hearing, the petition shall

include a signed certification as to each intended witness stating the

witness’s name, address, date of birth, and substance of testimony and shall

include any documents material to that witness’s testimony.” A certification

conforming to this statute is sufficient to entitle the defendant to a PCRA

hearing, unless the defendant has expressly stated at trial that he did not

want to call any witnesses other than those presented. Pander, supra.

          Herein, Appellant filed the appropriate certifications.     In his pro se

PCRA petition, Appellant set forth that trial counsel should have called

Serena Summers as a witness. Ms. Summers is Appellant’s sister and the

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residence where the drugs were located was her home.                Appellant

represented that Ms. Summers “knows that the contraband was not mine

and who it belong’s [sic] to.” PCRA Petition, 4/19/11, at 6 (made subject to

penalties for unsworn falsification and asserted as grounds for an evidentiary

hearing).   Appellant also listed as a witness Nicole Lancaster, “who was

present during the search of the residence and she know’s [sic] the

contraband in question was not mine. She know’s [sic] who the contraband

belong[s] to.”   Id.   The address and date of birth of each woman were

outlined in the PCRA petition. Id.

      In the amended PCRA petition, counsel continued with an appropriate

proffer regarding the witnesses averring that trial counsel was told about the

witnesses and that they were available and willing to testify.     He further

alleged that, since there were three other adults present in the house when

the warrant was executed, the testimony of these two witnesses would have

changed the outcome at trial. We find these averments sufficient to invoke

the aspects of the test for ineffective assistance of counsel in this area to

entitle Appellant to an evidentiary hearing.    Commonwealth v. Khalifah,

852 A.2d 1238 (Pa. 2004). We decline to grant Appellant a new trial since

trial counsel may refute Appellant’s assertions at the evidentiary hearing and

the PCRA court may not credit the witnesses’ testimony.        An evidentiary

hearing is the sole relief warranted at this juncture.




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      Appellant’s second position lacks merit. He avers that he is entitled to

be   re-sentenced   in   that   he   was   sentenced     under   a   statute   ruled

unconstitutional by decisions applying the United States Supreme Court’s

pronouncement in Alleyne v. United States, 133 S.Ct. 2151 (2013).                In

Commonwealth        v.   Riggle,     119   A.3d   1058   (Pa.Super.    2015),    we

specifically held that decisions striking down mandatory minimum sentencing

provisions under Alleyne will not be given full retroactive effect to PCRA

petitioners.

      Appellant’s third assertion is that “the PCRA court erred in denying the

Appellant’s PCRA petition where trial counsel failed to file a severance

motion in this matter.” Appellant’s brief at 16. Appellant claims that, after

the trial court permitted consolidation, trial counsel rendered ineffective

assistance by failing to seek severance of the charges involving Jones from

the charges arising from the execution of the warrant at his sister’s home.

“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.” Commonwealth v. Stewart,

84 A.3d 701, 706 (Pa.Super. 2013) (en banc). The failure to meet any of

these aspects of the ineffectiveness test results in the claim failing. Id. A

claim has arguable merit where the factual predicate is accurate and “could

establish cause for relief.” Id. at 707. A determination as to whether the

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facts asserted present a claim of arguable merit is a legal one.     Id.   It is

presumed that counsel renders effective representation.

      Pa.R.Crim.P. 582 governs consolidation of separate informations and

provides, in pertinent part:

            (1) Offenses charged in separate           indictments    or
            informations may be tried together if:

                 (a) the evidence of each of the offenses would
            be admissible in a separate trial for the other and is
            capable of separation by the jury so that there is no
            danger of confusion; or

                 (b) the offenses charged are based on the
            same act or transaction.

Pa.R.Crim.P. 582(A)(1).

      The PCRA court herein concluded that counsel was not ineffective for

neglecting to seek severance of the two actions since consolidation was

properly granted.   It ruled first that the crimes at each information would

have been admissible in a separate trial for the other in that they were

based upon that same series of events. We agree. Evidence of other crimes

is inadmissible at a trial when that proof is introduced to “show the

defendant's bad character or propensity to commit crime.”             Pa.R.E.

404(b)(1). However, evidence of other crimes is allowed to be introduced in

a variety of circumstances, including “where such evidence is part of the

history of the case and forms part of the natural development of the facts.”




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Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa.Super. 2010) (citation

omitted).

     Our Supreme Court’s decision in Commonwealth v. Wholaver, 989

A.2d 883 (Pa. 2010), is instructive.    Therein, the defendant was charged

with sexually abusing his daughters. Weeks before trial on those charges,

the defendant killed his wife and the victims. The sexual abuse and murder

charges were joined for trial, and the defendant’s motion for severance was

denied. On appeal, our Supreme Court upheld consolidation of the charges.

It observed, inter alia, that since all the offenses “flowed from the same

events and were part of the same story, joinder for trial was appropriate.”

Id. at 899.   It also noted that the crimes would have been admissible if

separate trials had occurred since they were part of the same chain or

sequence of events.

     Herein, the two sets of crimes were inextricably intertwined.    Jones

was shot during a drug deal, and Jones led police to Appellant and to the

house that was searched.     Jones was assaulted merely two days before

police located Appellant and executed the search warrant.        Jones sold

Appellant cocaine, which was found inside the searched house.      The trial

court did not abuse its discretion in concluding that the charges arose from

the same chain or sequence of events.

     We also concur with the PCRA court’s determination that there was no

danger of confusion by the jury due to the consolidation and that Appellant

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was not prejudiced by the joinder. It premised these conclusions on the fact

that the jurors returned different verdicts as to the two sets of offenses. We

concur with this assessment.     The charges relating to Jones were distinct

from that arising from the search. The jury rendered different verdicts as to

the two criminal cases. Hence, we find that consolidation was proper so that

Appellant’s position that severance could have been successfully achieved

does not have arguable merit. Trial counsel, therefore, was not ineffective

for failing to request that the two cases be severed for trial.

      Order reversed. Case remanded for proceedings consistent with this

adjudication. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




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