J-S18012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

DARLENE V. PALMER

                            Appellant                 No. 1360 EDA 2016


                    Appeal from the PCRA Order April 7, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0004393-2012


BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                               FILED April 25, 2017

        Appellant, Darlene V. Palmer, appeals from the order dismissing her

petition pursuant to the Post Conviction Relief Act (“PCRA”) that challenged

the effectiveness of her trial counsel. Darlene argues that trial counsel was

not diligent in preparing for trial and therefore was unable to present a

coherent defense to the charges brought against her. After careful review,

we agree with the PCRA court’s conclusion that Darlene has failed to

establish that she suffered any prejudice from trial counsel’s actions and

therefore affirm.

        The Commonwealth charged Darlene with acting as a lookout for her

nephew, Jerrell Palmer, a drug dealer in Chester. At the bench trial on these
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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charges, the Commonwealth presented evidence that an undercover police

officer and a confidential informant were engaged in making a controlled buy

from Jerrell on April 10, 2012. They requested heroin from Jerrell, but he

informed them that he could only provide them with cocaine.

      After this short conversation, Jerrell left the undercover officer and

informant and got in a vehicle. Darlene then stopped her vehicle near the

officer and informant and asked them about the nearby hotdog stand. She

proceeded to question the two about their presence in the area. After

concluding her questioning, she rolled up her window and made a call on her

mobile phone.

      Shortly thereafter, Jerrell returned in his vehicle. He dropped a bag of

cocaine near his car and instructed the officer to drop the money in the

same spot after taking the cocaine. However, after picking up the baggie of

cocaine, the officer handed his cash to an unidentified female in Jerrell’s

vehicle.

      Jerrell then walked to the hotdog stand and made a purchase. He

proceeded to Darlene’s vehicle and handed her the cash. This was the first

time he acknowledged the presence of his aunt at the scene.

      At trial, the Commonwealth presented a video of the transaction,

including the conversation between Darlene and the undercover officer.

Furthermore, the officer testified that, in his experience, Darlene’s actions




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were consistent with lookouts employed by drug dealers. These lookouts are

used in an attempt to screen out possible undercover police officers.

      The Commonwealth also presented evidence of a similar transaction

on April 16, 2012. The undercover officer testified that, once again, Darlene

Palmer acted in a manner consistent with being a lookout for Jerrell Palmer’s

narcotics trafficking. However, the Commonwealth did not present a video

recording of this transaction.

      Darlene testified that she was at the scene of the transaction because

she had loaned Jerrell some money. He had failed to pay her back the night

before, so she had tracked him down and demanded repayment. Darlene

vehemently denied being involved in trafficking narcotics. The defense also

presented the testimony of two character witnesses who testified to

Darlene’s reputation for honesty and being a peaceful, law abiding citizen.

      The trial court found Darlene guilty of delivery of cocaine, possession

of cocaine, conspiracy, and possession of drug paraphernalia. It sentenced

her to an aggregate period of incarceration of time served to 23 months.

Darlene did not file a direct appeal. Instead, she filed this timely PCRA

petition, asserting ineffectiveness of trial counsel.

      After two evidentiary hearings, the PCRA court denied her relief on her

petition. This timely appeal followed.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are


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supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “[Our] scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the

PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

2012) (citation omitted).

      We are to apply “a de novo standard of review to the PCRA court’s

legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)

(citation omitted). In order to be eligible for PCRA relief, a petitioner must

plead and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2).

      On appeal, Darlene contends that the trial court erred in concluding

that trial counsel was effective. It is well settled that

      [t]o 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. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012)

(citation omitted). In assessing a claim of ineffectiveness, when it is clear

that appellant has failed to meet the prejudice prong, the court may dispose

of the claim on that basis alone, without a determination of whether the first

two prongs have been met. See Commonwealth v. Travaglia, 661 A.2d


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352, 357 (Pa. 1995). “To establish the [prejudice] prong, Appellant must

show that there is a reasonable probability that the outcome of the

proceedings would have been different but for counsel’s action or inaction.”

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).

      In her argument, Darlene contends that trial counsel was unaware of

the charges relating to the controlled buy that occurred on April 16, 2012.

After laying out the basis for this contention, the remainder of Darlene’s

argument consists of the following:

      Clearly, [trial counsel] was unaware of the April 16th controlled
      drug sale because he did not fully review the discovery materials
      available to him prior to trial. Whether this was due to [trial
      counsel] taking for granted there was only one alleged drug
      transaction, because the Commonwealth only had videotaped
      evidence of the April 10th transaction, mere inadvertence, or
      more likely the advancing debilitating illness suffered by [trial
      counsel], which … the prosecutor on the case[] said caused a
      protracted delay in the adjudication of [Darlene’s] case is of no
      moment. Regardless of the cause of [trial counsel’s] deficient
      review of discovery and preparation of [Darlene’s] case, [trial
      counsel’s lack of preparedness[] precluded [Darlene] from
      presenting a viable defense to the Commonwealth’s allegations
      surrounding the April 16th transaction, including Appellant’s
      claim that she asked [trial counsel] to call Kevin Nichols as an
      alibi witness to establish that coincident with the time and date
      of the April 16th transaction, she was [nowhere] near the scene
      when [Jerrell] dropped of his second delivery of cocaine to [the
      undercover officer.] Clearly, [trial counsel’s failure to adequately
      review discovery, which precluded [Darlene’s] potential alibi
      defense, prejudiced [her] right to a fair trial.

Appellant’s Brief, at 19.

      After reviewing the record, we conclude that the PCRA court did not

abuse its discretion in finding that Darlene had failed to establish that she


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had suffered prejudice from the failure to call to Kevin Nichols as an alibi

witness. Clearly, the trial court, sitting as fact-finder, did not believe

Darlene’s testimony that she was not acting as a lookout for Jerrell on the

April 12, 2012 transaction. The same undercover officer who testified to the

April 12, 2012 transaction testified to the April 16, 2012, transaction. In

both instances, he explicitly identified Darlene as being involved as a lookout

for the transaction.

      Darlene has presented no argument, and no evidence to support such

an argument, that the trial court would have found the undercover officer

not credible merely due to Kevin Nichols’s alibi testimony regarding

Darlene’s whereabouts on April 16, 2012. Nor has she established that the

trial court would have found credible her testimony that she was not present

for the April 16, 2012 transaction. There is simply no evidence that Kevin

Nichols’s alibi testimony would have changed the trial court’s determination

that the undercover officer was credible. We therefore conclude that the

PCRA court did not err or abuse its discretion in denying Darlene’s PCRA

petition.

      Order affirmed. Jurisdiction relinquished.

      Judge Solano joins the memorandum.

      Justice Fitzgerald concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2017




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