J-S46041-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                 v.                      :
                                         :
ERIC K. HARRISON,                        :
                                         :
                 Appellant               :      No. 3005 EDA 2015

            Appeal from the PCRA Order September 11, 2015,
             in the Court of Common Pleas of Monroe County,
           Criminal Division, at No(s): CP-45-CR-0001542-2011

BEFORE:    BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED AUGUST 10, 2016

     Eric K. Harrison (Appellant) appeals from the order which denied his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. Upon review, we affirm.

     A prior panel of this Court set forth in detail the background underlying

this matter and, thus, we need not repeat it at length herein.           See

Commonwealth v. Harrison, 120 A.3d 393 (Pa. Super. 2015).             Briefly,

Appellant was convicted following a jury trial of criminal conspiracy,

possession of drug paraphernalia, and three counts of possession of a

controlled substance based upon drugs and related contraband that were

found during a search of a vehicle in which Appellant was a passenger. He

was sentenced to an aggregate term of three and one half to seven years of




*Retired Senior Judge assigned to the Superior Court.
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imprisonment. Ultimately, this Court affirmed his judgment of sentence on

February 26, 2015. Id.

      On April 9, 2015, Appellant pro se filed a PCRA petition.1 Counsel was

appointed    and   a   hearing   was   scheduled    on   the   petition. 2    The

Commonwealth filed an answer in opposition to the petition, and, following

the hearing, the PCRA court denied the petition. This appeal followed.

      On appeal, Appellant raises the following issues for our consideration:

       I.    Whether the [PCRA] court erred by finding that trial
             counsel’s failure to convey pre-trial plea offers to Appellant
             did not amount to ineffectiveness of counsel.

       II.   Whether trial counsel’s failure to raise a spoliation of
             evidence argument at trial, failure to request a jury
             instruction on spoliation of evidence, and failure to raise
             the issue on appeal amounted to ineffective assistance of
             counsel.

Appellant’s Brief at 4 (unnecessary capitalization omitted).



1
   Appellant initially pro se filed a PCRA petition on October 16, 2014, which
the PCRA court dismissed without prejudice as having been prematurely
filed, as Appellant’s direct appeal was pending. See Commonwealth v.
Kubis, 808 A.2d 196, 198 n.4 (Pa. Super. 2002) (“The PCRA provides
petitioners with a means of collateral review, but has no applicability until
the judgment of sentence becomes final.”).
2
  Appellant’s counsel did not file an amended petition on Appellant’s behalf,
despite requesting and receiving an extension of time to do so. At the PCRA
hearing, counsel indicated that upon review of the pro se filing, it was his
position that all of the issues raised therein were “of arguable merit at least”
and that there were “no additional issues in looking at [Appellant’s] file that
jumped out to [him].” N.T., 6/30/2015, at 4-5. Counsel confirmed that he
and Appellant were satisfied that all issues were contained in the pro se
petition and that they “would like to go forward at [that] time with those
issues.” Id.

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      On appeal from the denial of PCRA relief, our standard of review
      calls for us to determine whether the ruling of the PCRA court is
      supported by the record and free of legal error. The PCRA court’s
      findings will not be disturbed unless there is no support for the
      findings in the certified record. The PCRA court’s factual
      determinations are entitled to deference, but its legal
      determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (internal

citations and quotation marks omitted). “We review the PCRA court’s

findings of fact in the light most favorable to the Commonwealth as verdict

winner to determine if they are supported by the record.” Commonwealth

v. Freeland, 106 A.3d 768, 777 (Pa. Super. 2014). Moreover, “[i]t is well-

settled that a PCRA court’s credibility determinations are binding upon an

appellate   court   so   long   as   they   are   supported   by   the    record.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).

      Appellant’s claims are based upon the alleged ineffective assistance of

his counsel.

      [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. …

         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.



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      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.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(internal citations and quotation marks omitted).

      In his first issue, Appellant argues that his trial counsel was ineffective

because, as demonstrated by various letters and an email pertaining to plea

negotiations leading up to trial, she never told him that the Commonwealth’s

offer to plead guilty to conspiracy was still “on the table past the suppression

hearing” held in this case. Appellant’s Brief at 8.

      We    address   Appellant’s   argument     mindful    of   the   following.

“Defendants have a Sixth Amendment right to counsel, a right that extends

to the plea-bargaining process.     During plea negotiations defendants are

entitled to the effective assistance of competent counsel.” Lafler v. Cooper,

132 S. Ct. 1376, 1384 (2012) (citations and internal quotation marks

omitted). “[A]s a general rule, defense counsel has the duty to communicate

formal offers from the prosecution to accept a plea on terms and conditions

that may be favorable to the accused.” Missouri v. Frye, 132 S. Ct. 1399,

1408 (2012).

      In order to show that trial counsel was ineffective for failing to advise

him of a plea offer, Appellant must establish that “(1) an offer for a plea was

made; (2) trial counsel failed to inform him of such offer; (3) trial counsel

had no reasonable basis for failing to inform him of the plea offer; and (4)

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he was prejudiced thereby.”      Commonwealth v. Chazin, 873 A.2d 732,

735 (Pa. Super. 2005) (citation omitted).

      To show prejudice from ineffective assistance of counsel where a
      plea offer has lapsed or been rejected because of counsel’s
      deficient performance, defendants must demonstrate a
      reasonable probability they would have accepted the earlier plea
      offer had they been afforded effective assistance of counsel.
      Defendants must also demonstrate a reasonable probability the
      plea would have been entered without the prosecution canceling
      it or the trial court refusing to accept it, if they had the authority
      to exercise that discretion under state law.             To establish
      prejudice in this instance, it is necessary to show a reasonable
      probability that the end result of the criminal process would have
      been more favorable by reason of a plea to a lesser charge or a
      sentence of less prison time.

Frye, 132 S. Ct. at 1409.

      Herein, the PCRA court concluded that “[w]hile it is clear there were

multiple plea offers made, having had the opportunity to view the witnesses,

[trial counsel] testified credibly that she presented all plea offers to

[Appellant] but because [Appellant] would not plead to a felony, [Appellant]

rejected all offers.” PCRA Court Opinion, 9/11/2015, at 5.        The testimony

offered by trial counsel at the PCRA hearing indicates that, at the least, she

informed Appellant prior to the suppression hearing that an offer to plead to

conspiracy to commit PWID was tendered and that after the hearing an offer

to plead to PWID was available. See generally N.T., 6/30/2015, at 7-27,

35-36, 38-40; see also Defendant’s Exhibit 2. Counsel testified that

Appellant was only willing to plead to the paraphernalia charge, “never

wanted to plead throughout all of [their] discussions,” was “adamant that he



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wanted a trial,” and did not want to plead to a felony because he was on

state parole at the time the incident occurred. Id. at 8, 11, 16-18, 20, 35-

36, 40. Assuming arguendo that counsel did not advise Appellant that the

offer to plead to conspiracy was still available after the suppression hearing,

in light of this testimony, which the trial court credited and which we view in

the light most favorable to the Commonwealth, Appellant has failed to

demonstrate a reasonable probability he would have accepted the offer to

plead to conspiracy even if it were still available and conveyed to him after

the suppression hearing.3 Thus, his ineffectiveness claim fails.

      Appellant’s second issue centers on the spoliation of two pieces of

evidence that Appellant contends should have been argued at trial, included

in jury instructions, and raised on appeal: (1) a mobile video recording of

the incident in question, which “was destroyed solely through the negligence

of the State Police/Commonwealth,” and (2) a canister containing drugs

found in the vehicle, from which the police were unable to obtain fingerprints

because the police mishandled the evidence. Appellant’s Brief at 9-11.

      Upon review, we again conclude          that Appellant has failed to

demonstrate prejudice.

      To satisfy the prejudice prong, it must be demonstrated that,
      absent counsel’s conduct, there is a reasonable probability that
      the outcome of the proceedings would have been different. If it
      has not been demonstrated that counsel’s act or omission

3
  In reaching this conclusion, we further note that Appellant includes no
argument whatsoever in his brief as to the prejudice prong of the
ineffectiveness test, let alone the specific requirement discussed above.

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      adversely affected the outcome of the proceedings, the claim
      may be dismissed on that basis alone, and the court need not
      first decide whether the first and second prongs have been met.

Commonwealth v. Perez, 103 A.3d 344, 348 (Pa. Super. 2014) (citation

omitted).

      In an effort to establish prejudice, Appellant argues that had counsel

requested a spoliation charge with respect to the evidence above, “the court

would have directed the jury that they could infer from the destruction of the

evidence that the evidence would have been favorable to Appellant,” which

“would have been powerful information to provide to the jury.” Appellant’s

Brief at 11.   Appellant also argues that “it should be clear that counsel’s

omission worked to prejudice Appellant’s interest, i.e., had an adverse effect

upon the outcome of the proceedings.”        Id.   With respect to the lack of

fingerprint analysis in particular, Appellant further argues that

      [g]iven the fact that trial counsel’s stated defense was that
      Appellant [did not] know about the existence of the drugs, surely
      the Commonwealth’s destruction of evidence which would have
      tended to shed light on whether Appellant had ever handled the
      very canister which housed the drugs in question would have
      been powerful evidence tending to establish his innocence. ...

      Appellant’s fingerprints, or lack thereof, on the very item in the
      car which housed the contraband is crucial to the issue of
      whether he had knowledge of the existence of the contraband.

Appellant’s Brief at 10-11.

      Appellant’s bald claims amount to nothing more than mere speculation

as to the prejudice Appellant allegedly suffered and, thus, are insufficient to

meet his burden under the ineffectiveness test.       See Commonwealth v.

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Charleston, 94 A.3d 1012, 1026 (Pa. Super. 2014) (“Unsupported

speculation does not establish reasonable probability.”); Commonwealth v.

Pursell, 724 A.2d 293, 311 (Pa. 1999) (“Claims of ineffective assistance of

counsel that are based on speculation and conjecture do not adequately

establish the degree of prejudice necessary.”).      Moreover, with respect to

Appellant’s argument about the lack of fingerprint analysis in particular, we

fail to see how he was prejudiced given that (1) the case against Appellant

was one of constructive possession4 and (2) the evidence 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.”). For these reasons, his claim fails.

      Appellant has failed to establish that his issues entitle him to relief.

Accordingly, we affirm the order of the PCRA court.

      Order affirmed.




4
  Where “[a]ctual possession is proven by showing ... [that the] controlled
substance [was] found on the [defendant’s] person,” constructive possession
is proven by demonstrating a defendant’s “ability to exercise a conscious
dominion over the illegal substance: the power to control the contraband
and the intent to exercise that control. … It is a judicially created doctrine ...
[that] enables law enforcement officials to prosecute individuals in situations
where the inference of possession is strong, yet actual possession at the
time of arrest cannot be shown.” Commonwealth v. Vargas, 108 A.3d
858, 868 (Pa. Super. 2014) (citations and internal quotation marks omitted).

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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/10/2016




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