J-S09039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DONALD SAVAGE,

                            Appellant                No. 3838 EDA 2015


                 Appeal from the PCRA Order November 23, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0011386-2008


BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 28, 2017

        Appellant, Donald Savage, appeals from the order denying his first

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

§§ 9541-9546. We affirm.

        We provide only those facts from the PCRA court’s July 28, 2016

opinion and from our independent review of the certified record that are

relevant to our review:

        At Appellant’s preliminary hearing, Philadelphia Police Officer Timothy

Bogan testified to the following facts. On February 7, 2007, Officer Bogan

set up surveillance from his vehicle at the Dunkin’ Donuts located at 16th

and Washington Avenue, based on a tip from an informant that Appellant
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*
    Retired Senior Judge assigned to the Superior Court.
J-S09039-17


would be delivering crack cocaine to that location.1        (See N.T. Preliminary

Hearing, 9/10/08, at 4-5). When Appellant’s car pulled into a parking lot,

back-ups, Officer John Brennan and Sergeant William Torpey, ordered

Appellant out of the car. Officer Brennan recovered approximately twenty-

eight grams of cocaine and $3,791.00 in cash from Appellant’s person and

placed him under arrest. (See id. at 5).

        Appellant then stated he wanted to cooperate, and Sergeant Torpey

read him his Miranda2 warnings.            Appellant advised Sergeant Torpey that

there were more than six ounces of crack cocaine at an apartment located at

7701 Lindbergh Boulevard in Philadelphia, and that he had the only two keys

to the apartment. (See id. at 6). Police drove Appellant to the apartment

and obtained his consent to enter, using the keys they had confiscated from

his person to do so. (See id.). Upon entering the vacant apartment, police

observed a large amount of cocaine in plain view, obtained a search warrant,

and seized over 180 grams of cocaine, drug paraphernalia, and $5,210.30 in

cash.     (See id.      at 6-7).3        Judge   Frank Palumbo   found that the

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1
   Relevant to our review, we note that Officer Brian Reynolds and the
informant waited in the car with Officer Bogan. (See N.T. Trial, 9/21/10, at
33). The notes of testimony do not reveal that Officer Reynolds had any
further involvement in Appellant’s case and he did not testify.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).
3
  At trial, Officer Michael Spicer of the Philadelphia Police Department
Narcotics Field Unit South testified as an expert in how narcotics are
(Footnote Continued Next Page)


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Commonwealth established a prima facie case of possession with intent to

deliver (PWID), and explained that he did not think it appropriate to make a

finding of particularity as to the evidence, because that would be up to the

trial judge. (See id. at 19-23).

      On September 22, 2010, a jury found Appellant guilty of PWID for the

cocaine found on his person and seized from the apartment. (See Verdict,

9/22/10). On November 10, 2010, Appellant filed a post-trial motion that

the court denied on November 18, 2010. The court sentenced him to a term

of not less than seven nor more than fourteen years’ incarceration, followed

by eighteen months of probation.

      On June 30, 2011, this Court affirmed Appellant’s judgment of

sentence.    (See Commonwealth v. Savage, 31 A.3d 760 (Pa. Super.

2011)). Appellant did not file a petition for leave to appeal in our Supreme

Court.

      On January 20, 2012, Appellant filed a timely pro se petition for PCRA

relief. Appointed counsel filed amended petitions on May 27, 2013 and July


                       _______________________
(Footnote Continued)

packaged, sold, delivered, and valued. (See N.T. Trial, 9/22/10, at 4, 8).
He stated that the amount of crack cocaine and money found on Appellant’s
person pointed to him being a drug dealer. (See id. at 11-12, 14-15). He
also explained that a stash house is a place where a “particular person or
persons feel safe putting their narcotics[,]” and is used “as a safe place so
you can do business, and then you bring out whatever was ordered[.]” (Id.
at 24-25). He opined that the items found in the apartment were possessed
with the intent to deliver. (See id. at 18).



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17, 2014.4 After a hearing, the PCRA court denied the petition in an order

filed on November 18, 2015, with the decision effective November 23, 2015.

Appellant timely appealed.5

       Appellant raises two questions for this Court’s review:

       1.    Did the [PCRA] [c]ourt err in finding the Appellant in
       possession of controlled substances that were thrown out at the
       preliminary hearing and imposing an unconstitutional mandatory
       minimum sentence?

       2.     Did the [PCRA] [c]ourt err in failing to grant leave for the
       Appellant to have discovery into the corrupt Philadelphia police
       officers involved in his arrest and in failing to [h]old an
       evidentiary hearing?

(Appellant’s Brief, at 8).

       Our standard of review of the denial of a PCRA petition is well-

established:

              This Court analyzes PCRA appeals in the light most
       favorable to the prevailing party at the PCRA level. Our review
       is limited to the findings of the PCRA court and the evidence of
       record and we do not disturb a PCRA court’s ruling if it is
       supported by evidence of record and is free of legal error.
       Similarly, we grant great deference to the factual findings of the
       PCRA court and will not disturb those findings unless they have
       no support in the record. However, we afford no such deference
       to its legal conclusions. Where the petitioner raises questions of
       law, our standard of review is de novo and our scope of review is

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4
 The July 17, 2014 petition was merely a re-filing of the one filed on May
27, 2013.
5
  Pursuant to the PCRA court’s order, Appellant filed a timely Rule 1925(b)
statement on May 9, 2016, and the court filed an opinion on July 28, 2016.
See Pa.R.A.P. 1925.



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       plenary. Finally, we may affirm a PCRA court’s decision on any
       grounds if the record supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (citation

omitted).

       In his first issue, Appellant alleges trial court error on the bases that:

(1) he was convicted of possessing controlled substances for which he was

not bound over for trial;6 and (2) his mandatory minimum sentence is illegal

pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013).                (See

Appellant’s Brief, at 15-18).         We will address each of these arguments

separately.

       In his first claim, Appellant asserts that his PWID conviction should

only have been for the drugs found on him, not for the larger amount seized

from the apartment, because the preliminary hearing judge only bound over

the case for the charge on the drugs in his physical possession. (See id. at

15). This issue is waived on two bases.

       First, Appellant’s claim is waived for his failure to provide any pertinent

legal citation or discussion. (See id. at 15); Pa.R.A.P. 2101, 2119(a)-(b).

His thin argument is based on one statement by the preliminary hearing

judge, taken out of context, and does not contain any legal authority to

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6
  It is not clear that Appellant’s claim is cognizable under the PCRA. See 42
Pa.C.S.A. § 9543(a)(2). However, even assuming it is a claim for which
PCRA relief is available, for the reasons discussed infra, it is waived for our
review.



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support his position that the jury was prohibited from finding him guilty of

PWID for the drugs in both his physical and constructive possession. (See

Appellant’s Brief, at 15).

       Second, it is well-settled that “an issue is waived if the petitioner could

have raised it but failed to do so before trial, at trial, during unitary review,

on appeal or in a prior state post[-]conviction proceeding.” 42 Pa.C.S.A. §

9544(b); see also 42 Pa.C.S.A. § 9543(a)(3). Here, Appellant failed to raise

this issue either in his post-trial motion or on direct appeal, where the only

claim he raised was the denial of his motion to suppress.                  (See N.T.

Sentencing, 11/08/10, at 4 (trial court observing the “focus [of the post-trial

motion]     is   on    the    [denial     of     the]   motion   to   suppress[.]”)); 7

(Commonwealth           v.    Savage,      No.     3440   EDA    2010,    unpublished

memorandum, at *2 (Pa. Super. filed June 30, 2011)). Therefore,

Appellant’s first claim of error is waived on this basis as well. See 42

Pa.C.S.A. §§ 9543(a)(3), 9544(b); Commonwealth v. Koehler, 36 A.3d



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7
  The certified record does not contain Appellant’s post-trial motion for our
review; therefore, we rely on the notes of testimony from sentencing, where
the motion was argued.         (See N.T. Sentencing, at 3-13); see also
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006), appeal
denied, 916 A.2d 632 (Pa. 2007) (“Our law is unequivocal that the
responsibility rests upon the appellant to ensure that the record certified on
appeal is complete in the sense that it contains all of the materials necessary
for the reviewing court to perform its duty.”) (citation omitted).




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121, 160-61 (Pa. 2012) (concluding appellant waived claim where he failed

to raise it in post-trial motion or in direct appeal).8

        Next, Appellant argues that the trial court imposed an unconstitutional

mandatory minimum sentence on the basis of Alleyne, supra.                    (See

Appellant’s Brief, at 15-18). This claim fails.

        “In Alleyne, the Supreme Court [of the United States] held that ‘facts

that increase mandatory minimum sentences must be submitted to the jury

and must be found beyond a reasonable doubt.’ Alleyne, supra at 2163.”

Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014).                  “The

Alleyne      decision,   therefore,     renders   those   Pennsylvania   mandatory

minimum sentencing statutes that do not pertain to prior convictions

constitutionally infirm insofar as they permit a judge to automatically

increase a defendant’s sentence based on a preponderance of the evidence


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8
    Moreover, we briefly note that Appellant’s allegation would lack merit.

     “At the pre-trial stage of a criminal prosecution, it is not necessary for
the Commonwealth to prove the defendant’s guilt beyond a reasonable
doubt, but rather, its burden is merely to put forth a prima facie case of the
defendant’s guilt.” Commonwealth v. Nieves, 876 A.2d 423, 424 (Pa.
Super. 2005), appeal denied, 891 A.2d 731 (Pa. 2005) (citation omitted).

      Here, the preliminary hearing transcript reveals that the judge found
that the Commonwealth established a prima facie case of PWID. (See N.T.
Preliminary Hearing, 9/10/08, at 20, 23). A careful review of the entire
proceeding reveals that the judge did not feel it appropriate to be bound to a
finding of particularity, and it did make a specific finding about the weight of
the drugs for which Appellant could be prosecuted. (See id. at 20-22).



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standard.” Commonwealth v. Ferguson, 107 A.3d 206, 214 (Pa. Super.

2015) (citation omitted).

      However, the Pennsylvania Supreme Court expressly held that

“Alleyne does not apply retroactively to cases pending on collateral

review[.]”     Commonwealth v. Washington, 142 A.3d 810, 820 (Pa.

2016). Therefore, Appellant’s judgment of sentence is not unconstitutional.

See id.      Appellant’s argument is meritless.   Hence, Appellant’s first issue

does not afford him relief.

      In his second issue, Appellant maintains that the PCRA court erred in

denying his request for discovery, and in failing to hold an evidentiary

hearing on this issue. (See Appellant’s Brief, at 19-20). Appellant’s claim

does not merit relief.

      Pursuant to Pennsylvania Rule of Criminal Procedure 902, post-

conviction requests for discovery shall not be permitted, “except upon leave

of court after a showing of exceptional circumstances.”            Pa.R.Crim.P.

902(E)(1).

      [I]t is for the [PCRA] 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, we recall that the appellant has
      the duty to convince us an abuse occurred.


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

denied, 65 A.3d 413 (Pa. 2013) (citations omitted).      Importantly, “mere

speculation that exculpatory evidence might exist does not constitute an

exceptional circumstance warranting discovery.”        Id. at 612 (citation

omitted).

     In its July 28, 2016 opinion, the PCRA court explained:

     . . . Appellant contends that the underlying reasons for the
     Commonwealth’s withdrawal of prosecution[s] [involving Officers
     Spicer and Reynolds in other, unrelated, cases] may provide a
     basis to attack [his] conviction[]. He further points out that the
     Commonwealth withdrew prosecution in over 270 unrelated
     cases involving Police Officers Michael E. Spicer, . . . Brian
     Reynolds[, and others,] and as a result, the Commonwealth
     should explain why it withdrew prosecution in these cases.
     However, although the Commonwealth may not have explained
     why it withdrew prosecution in the other cases, the Appellant’s
     claim has little relevance to [his] case.

            In [Appellant’s] case, Officer Reynolds, along with many
     other officers, was merely present at the scene during the
     Appellant’s arrest. Reynolds’ mere presence at the scene neither
     compromised evidence nor provided the Appellant with a basis to
     attack his conviction. Just as importantly, Officer Spicer only
     testified at the Appellant’s trial as an expert witness. He was not
     part of the investigation at any stage, not present during the
     time of the Appellant’s arrest, and was not a fact witness against
     the Appellant. Neither does the Appellant contend there was any
     error in Officer Spicer’s expert testimony. For all of these
     reasons, the Commonwealth did not have to explain to the
     Appellant why it withdrew prosecution in some unrelated cases.

     . . . Appellant merely speculates that the Commonwealth’s
     reason for withdrawal of prosecution against Officers Spicer and
     Reynolds may provide a basis to attack his conviction. Even if
     the court had granted the Appellant’s [m]otion, he cannot
     demonstrate that his information would have been outcome
     determinative.    Interestingly enough[,] these [o]fficers were
     ultimately acquitted in federal court. As Officer Reynolds’ mere

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      presence at the scene of the arrest, along with Officer Spicer’s
      uncontested expert drug testimony, does not meet a showing of
      “exceptional circumstances,” the Appellant has not demonstrated
      that the court abused its discretion. Therefore, this claim should
      be dismissed.

(PCRA Court Opinion, 7/28/16, at 13-14) (quotation marks, emphases, and

footnote omitted). We agree with the sound reasoning of the PCRA court.

      There is nothing in the PCRA court’s decision that suggests that it is

“based on bias, ill will, partiality, prejudice, manifest unreasonableness, or

misapplication of law.” Frey, supra at 611. Additionally, the five sentences

Appellant devotes to this issue fail to demonstrate either that an abuse

occurred, or that his claim about the existence of exculpatory evidence is

anything more than pure speculation. (See Appellant’s Brief, at 19). This

contention fails.

      In his last argument, Appellant maintains that the PCRA court erred in

failing to hold a hearing on the exculpatory evidence issue. (See id. at 19-

20). We disagree.

      We have long held that “[a] petitioner is not entitled to a PCRA hearing

as a matter of right; the PCRA court can decline to hold a hearing if there is

no genuine issue concerning any material fact and the petitioner is not

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

by any further proceedings.”   Commonwealth v. Smith, 121 A.3d 1049,

1052 (Pa. Super. 2015), appeal denied, 136 A.3d 981 (Pa. 2016) (citations

omitted); see Pa.R.Crim.P. 907(1).


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      In this case, the PCRA court stated:

            The Commonwealth’s decision to withdraw prosecution in
      outside cases involving Officers Reynolds and Spicer is not an
      issue of material fact to the Appellant’s case, given the very
      limited role these officers played in the Appellant’s case based on
      the totality of the circumstances. No purpose would be served
      by any further proceedings in this case. The Appellant has not
      shown that the basis of the Commonwealth’s decision to
      withdraw prosecution created a genuine issue of material fact
      that would merit a hearing. . . .

(PCRA Ct. Op., at 14-15).

      We agree.     A review of the trial testimony reflects that, although

Officer Reynolds rode along with Officer Rogan to the scene of the arrest, he

did not participate in Appellant’s arrest or testify at trial.   (See N.T. Trial,

9/21/10, at 33-34). Additionally, Officer Spicer provided expert testimony.

(See N.T. Trial, 9/22/10, at 8).       He was not involved with Appellant’s

underlying case. (See id.). The PCRA court could discern these facts from

the record and properly determined that Appellant’s speculation about the

existence of exculpatory evidence did not require a further hearing.

      Therefore, we conclude that the record supports the PCRA court’s

denial of Appellant’s PCRA petition. See Benner, supra at 919.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017




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