J-S58029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 JOHNNY L. PENNINGTON, III                  :
                                            :
                    Appellant               :   No. 525 WDA 2019

            Appeal from the PCRA Order Entered March 11, 2019
    In the Court of Common Pleas of Clarion County Criminal Division at
                      No(s): CP-16-CR-0000600-2016


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED JANUARY 7, 2020

      Appellant, Johnny L. Pennington, III, appeals from the post-conviction

court’s March 11, 2019 order denying his timely petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues that

his trial counsel acted ineffectively by not calling a certain witness to testify

at the pretrial suppression hearing. After careful review, we affirm.

      On April 17, 2018, Appellant was convicted by a jury of sexual

exploitation of children (18 Pa.C.S. § 6320(a)), endangering the welfare of

children (18 Pa.C.S. § 4304(a)(1)), and criminal solicitation to commit rape of

a child (18 Pa.C.S. § 902(a)).      Appellant’s convictions were premised on

evidence that he “sent a Snapchat message to his then girlfriend, Elynn

Sumser, requesting that Ms. Sumser perform sexual acts on his minor son.”

Appellant’s Brief at 8. As Appellant explains, prior to his trial,
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     the Commonwealth filed [“N]otice of Prior Bad Acts and Motion in
     Limine[,”] in which it was indicated that the Commonwealth would
     be introducing text messages extracted from a Samsung Galaxy
     Note 4 cellular phone at trial. On June 28, 2017, [Appellant] filed
     a [“]Motion to Suppress Evidence[”] in which it was alleged that
     the Pennsylvania State Police conducted an unconstitutional
     search of [Appellant’s] Samsung Galaxy Note 4 cellular phone and
     all data, information and evidence obtained from the phone should
     be suppressed. On June 30, 2017, the Commonwealth filed an
     [“]Answer to [Appellant’s] Motion to Suppress Evidence[,”] in
     which it was alleged that the Pennsylvania State Police,
     specifically, Corporal Timothy Lencer, reasonably believed the
     Samsung Galaxy Note 4 to be the property of [Ms.] Sumser, the
     girlfriend with whom [Appellant] resided, who gave him
     authorization to search the phone, and, therefore the police had
     valid consent to search said phone.

           On July 10, 2017, the trial court held oral argument and an
     evidentiary hearing on the Commonwealth’s [“]Notice of Prior Bad
     Acts and Motion in Limine[”] as well as [Appellant’s] [“]Motion to
     Suppress Evidence.[”] At the hearing held on July 10, 2017,
     Corporal Lencer testified that[,] during the investigation[,] he
     came into possession of a Samsung Galaxy Note 4 cellular phone,
     a[n] SVP Tablet, and two Alcatel cell phones. He testified that his
     understanding at the time was that the owner of the phones and
     the tablet was [Ms.] Sumser. Corporal Lencer also testified that
     [Ms.] Sumser had provided consent for him to search all four
     phones, including the Samsung Galaxy Note 4[,] and at no time
     was he aware or had the belief that [Appellant] was the owner of
     the Samsung Galaxy Note 4. [Appellant’s trial counsel, Michael]
     Marshall[, Esq.,] did not call [Ms.] Sumser to testify at the hearing
     held on July 10, 2018[,] regarding whether she had told Corporal
     Lencer anything regarding the ownership of the Samsung Galaxy
     Note 4.

           By [o]rder of [c]ourt dated July 13, 2017, the [c]ourt
     determined that Corporal Lencer had consent to search the Galaxy
     Note 4 under the apparent authority doctrine[,] as he reasonably
     believed [Ms.] Sumser had authority to consent to said search.
     Thereafter, the Commonwealth presented evidence it had
     obtained from the Samsung Galaxy Note 4 cell phone at
     [Appellant’s] trial. Specifically, the Commonwealth introduced
     page 690 of the Samsung Galaxy Report, lines 92 and 91,
     indicating that on October 1, 2016[,] [Ms.] Sumser received a
     message from the Appellant’s phone stating, “Wanna be bad

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      mommy and have dirty playtime with your little boys ppl[?”]
      Additionally, messages were sent from the Galaxy Note 4 to [Ms.]
      Sumser’s phone on September 5, 2016[,] as recorded in the
      extraction report. The Commonwealth introduced lines 2532,
      2533, 2535, 2536 2539, 2540, and 2541 from [Appellant’s]
      portion of that conversation which read[, verbatim,] as follows:

         Line 2532[:] Yes baby I do

         Line 2533[:] Tell me more baby

         Line 2535[:] You wanna put him on top of you and grind his
         cock against your pussy

         Line 2536[:] You gotta be gentle hes tiny baby

         Line 2539[:] ??

         Line 2540[:] You want his pp huh mommy

         Line 2541[:] Rub your pussy with [the victim’s] underwear
         baby please

         The court permitted the admission of the extraction report from
      the Samsung Galaxy Note 4 during the trial on the basis of
      apparent authority of [Ms.] Sumser to give the phone to Corporal
      Lencer. However, at [Appellant’s] trial held on April 16, 2018,
      [Ms.] Sumser testified that when she gave the Samsung Galaxy
      Note 4 to Corproal [sic] Lencer, she told him it was … Appellant’s
      cell phone.

Id. at 8-12 (citations to the record omitted).

      At the close of Appellant’s jury trial, he was convicted of the above-

stated offenses.   On May 9, 2018, the court sentenced Appellant to an

aggregate term of 87 to 261 months’ incarceration.

      Following the trial, … Appellant filed a [p]ost [s]entence [m]otion
      requesting a new trial on the grounds that the trial court had erred
      by denying [Appellant’s] Motion to Suppress on the basis that
      Trooper Lencer believed [Ms.] Sumser had apparent authority to
      consent to the search of the Samsung Galaxy Note 4[,] when [Ms.]
      Sumser later testified at trial that she told Corporal Lencer that
      said phone belonged to [Appellant]. In the Opinion and Order
      dated August 21, 2018, the trial court stated that it could not

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      make an error in denying the suppression motion by failing to
      consider evidence, specifically the testimony of [Ms.] Sumser at
      the trial, when the evidence was not presented at the time of the
      suppression hearing.

Id. at 12.

      Appellant did not file a direct appeal. Instead, on August 23, 2018, he

filed a pro se PCRA petition. Counsel was appointed and an amended petition

was filed on Appellant’s behalf on December 4, 2018.       Therein, Appellant

argued that his trial counsel, Attorney Marshall, was ineffective by failing to

call Ms. Sumser to the stand at the suppression hearing. On February 13,

2019, the court conducted an evidentiary hearing. There,

      [Attorney] Marshall[] testified that[,] although the basis for the
      suppression hearing with regard to the information extracted from
      the Samsung Galaxy Note 4 was whether Corporal Lencer had
      apparent authority from [Ms.] Sumser to search the phone, he did
      not interview her prior to the suppression hearing[,] and that it
      never occurred to him to talk to her or have her come in for the
      hearing. He indicated that[,] had he known what she would have
      testified to regarding authority to search the phone, he would
      have called her at the suppression hearing. He also testified that
      having [Ms.] Sumser testify at the suppression hearing would
      have made a much stronger case for the suppression of the
      evidence that was obtained from the Samsung Galaxy Note 4.

Id. at 13.

      On March 11, 2019, the PCRA court entered an opinion and order

denying Appellant’s petition. The court concluded, for the reasons set forth

infra, that Appellant failed to establish that he was prejudiced by counsel’s

alleged error. Appellant filed a timely notice of appeal on April 10, 2019. He

also complied with the court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. The court thereafter issued a


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Rule 1925(a) opinion indicating that it was relying on the rationale set forth

in its March 11, 2019 opinion.            Herein, Appellant states one issue for our

review:

      Whether the PCRA Court erred in denying post-conviction relief to
      [Appellant] for a failure to establish prejudice created by the
      ineffective assistance of trial counsel when trial counsel failed to
      call [Ms.] Sumser to testify at the suppression hearing and the
      court concluded that the claim of ineffective assistance of counsel
      had arguable merit and the actions of trial counsel lacked a
      reasonable basis to effectuate … Appellant’s interest?

Id. at 5.

      “This 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, … 993 A.2d [874,] 886 [(Pa.
      2010)] (citing Strickland [v. Washington, 466 U.S. 668 ...
      (1984)]). In Pennsylvania, we have refined the Strickland
      performance and prejudice test into a three-part inquiry. See
      [Commonwealth v.] Pierce, [527 A.2d 973 (Pa. 1987)]. Thus,

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      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, …
      10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any of
      these prongs, his claim fails.” Commonwealth v. Simpson, …
      66 A.3d 253, 260 ([Pa.] 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, … 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, … 57 A.3d 607, 613 ([Pa.] 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, … 10 A.3d at 291 (quoting
      Commonwealth v. Collins, … 957 A.2d 237, 244 ([Pa.] 2008)
      (citing Strickland, 466 U.S. at 694….)).

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

      In this case, the PCRA court provided the following analysis of

Appellant’s ineffectiveness claim in its opinion:

              [T]he court finds that [Appellant] has met his burden of
      proving by a preponderance of evidence that the claim of
      ineffectiveness of counsel has arguable merit. Further, since trial
      counsel made an assumption that [Ms.] Sumser would be a hostile
      witness and did not attempt to determine what her testimony
      would in fact be, his inaction in calling her as a witness lacked a
      reasonable basis designed to effectuate [Appellant’s] interest.
      Still, [Appellant] must … prove the third prong of the test; that
      [A]ttorney Marshall’s action or inaction resulted in prejudice to
      him.

           “To establish the third, prejudice prong, the petitioner must
      show that there is a reasonable probability that the outcome of

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     the proceedings would have been different but for counsel’s
     ineffectiveness.” [Commonwealth v.] Chmiel, 30 A.3d [1111,]
     1127-28 [(Pa. 2011)].

            During the trial, April Pennington, [Appellant’s] estranged
     wife and mother of his son[, the victim], testified about text
     messages she had received on December 1, 2011[,] and
     December 2, 2011[,] from [Appellant,] when [the victim] was
     approximately two and a half years old. In the messages,
     [Appellant] described his sexually explicit dream about April
     [being] involved in sexual acts with their son, [the victim]. N.T.
     [] [T]rial[, 4/16/18,] at pp. 137-43.

             Additionally, the Commonwealth presented evidence of
     Facebook messages retrieved from the SVP Tablet Extraction
     Report pages 39-40 (Commonwealth’s Exhibit 8). [Ms.] Sumser
     testified that the message referred to her desire to not have
     “incest for tonight just rough.” She testified that[,] “I didn’t want
     him calling me mommy” [] but she wanted “grabbing, groping,
     and choking[,]” as she was interested in rough sex. N.T. []
     [T]rial[, 4/16/18,] at pp. 137-43. [Ms.] Sumser also testified that
     [Appellant] had a “mother/son fetish” and calling her
     [“]mommy[“] was an example of the types of things he would say
     during sex. [Id.] at pp. 77. She also testified that[,] “[h]e asked
     me to put his son’s underwear on and play with myself.” [Id.] at
     p. 79. Further, the Commonwealth presented evidence that on
     November 21, 2016, prior to the Snap[c]hat [message] in
     question being sent[,] [Appellant] had searched on the internet
     for “mom son incest sex toons” using the SVP Tablet. [Id.] at p.
     39; [N.T.] Trial[, 4/17/18,] at page 113; and Commonwealth’[s]
     Exhibit 4. Finally, there was the screen shot of the Snap[c]hat
     itself that [Ms.] Sumser testified she received on her phone from
     [Appellant] where [Appellant] asked her to perform oral sex on
     his son, [the victim]. N.T. [] [T]rial[, 4/16/18,] at pp. 96-98 and
     Commonwealth’s Exhibit 11.

            Under these circumstances, there was sufficient evidence of
     [Appellant’s] “mommy/son fetish[,]” and his past acts showing his
     motive and planning of encouraging women with whom he was in
     relationships to participate in this fetish[,] and also to involve his
     child[, the victim]. If the evidence that was extracted from the
     Samsung Galaxy Note 4 had been suppressed, the jury still could
     have reasonably concluded that [Appellant] had this sexual
     propensity, and he had sent the Snap[c]hat message to [Ms.]
     Sumser. The jury could have reasonably concluded that the

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      Commonwealth met its burden of proving [Appellant] guilty
      beyond a reasonable doubt. Therefore, there is not a reasonable
      probability that the outcome of the proceedings would have been
      different but for counsel’s ineffectiveness.

PCRA Court Opinion, 3/11/19, at 7-9.

      Appellant now contends that the PCRA court erred by concluding that he

failed to demonstrate prejudice.    Appellant argues that the trial evidence

discussed by the PCRA court “does not carry the same weight as the sexually

explicit text messages[,] which the jury members could read for themselves

and attribute directly to … Appellant.” Appellant’s Brief at 24. He additionally

stresses that, “[b]ecause the text messages from the Samsung Galaxy Note

4 [phone] came directly from … Appellant, it was more prejudicial than the

evidence and testimony offered by … Appellant’s ex-wife and ex-girlfriend[,]

which was subject to credibility determinations.”      Id. at 25.    Therefore,

Appellant concludes that, “[w]ithout the introduction of the text messages

extracted from the [phone]…, there is a reasonable certainty that the outcome

of the proceeding, a guilty verdict on all charges, would have been different.”

Id.

      We do not agree.       While we recognize that the messages from

Appellant’s phone were prejudicial, we cannot accept his position that they

controlled the jury’s verdict in this case, considering the other evidence of

Appellant’s guilt. Namely, Ms. Sumser testified that Appellant had a sexual

fetish about incest, and that he sent her a Snapchat message that stated, in

relevant part: “I really want you to suck my sons cock[.]      I’m done being

closed and clouded about it[.] I really want something to happen…[.]” N.T.

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Trial, 4/16/18, at 98. Ms. Sumser took a screen shot of this message, which

was presented at trial. Her testimony that Appellant sent this message to her

was corroborated by the screen shot she took of the message; the evidence

that, just prior to this message being sent, Appellant had conducted an

internet search for pornography depicting incest; the Facebook messages sent

by Ms. Sumser to Appellant discussing his incestuous fantasies; and April

Pennington’s testimony that Appellant had communicated his sexual thoughts

about incest to her, as well. Clearly, the totality of the evidence supporting

Appellant’s guilt was compelling, even without the at-issue messages from his

phone. Therefore, we agree with the PCRA court that Appellant has failed to

demonstrate a reasonable probability that the outcome of his trial would have

been different, had that evidence been suppressed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2020




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