J-S07023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    TERRANCE GARRIS                            :
                                               :
                       Appellant               :      No. 3085 EDA 2018

           Appeal from the PCRA Order Entered September 20, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011384-2007


BEFORE:      NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.:                                 FILED MARCH 12, 2020

        Appellant, Terrance Garris, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

        The PCRA court opinion set forth the relevant facts of this appeal as

follows:

           In response to numerous complaints, the Philadelphia Police
           Department’s Narcotics Enforcement Team set up a
           narcotics surveillance at the Sunoco Gas Station at Oxford
           Avenue and Roosevelt Boulevard in Philadelphia on
           September 28, 2005, approximately at 9:00 p.m. A male,
           William Ramos, driving a green Mazda, was observed pulling
           up to a gas pump, exiting the vehicle, and made a cell phone
           call. Moments later, Appellant arrived on the scene in a blue
           Buick and parked nearby. Appellant went into the store,
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*   Retired Senior Judge assigned to the Superior Court.
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         made no purchase, exited and entered the passenger side
         of Ramos’s vehicle. While Appellant was in the store, Ramos
         retrieved a backpack from his trunk, then returned to his
         driver’s seat. After a few minutes the males drove to
         Appellant’s car, whereupon [Appellant] exited with a white
         plastic bag and entered his vehicle.

         The males drove off in their respective vehicles with officers
         following in pursuit of Appellant.        When the officers
         activate[d] their lights and sirens, Appellant fled, ultimately
         jumped from the moving vehicle, and was later
         apprehended. As Appellant fled from the moving vehicle he
         was observed tossing the plastic bag, which was later
         recovered, that he carried from Ramos’s car. Cocaine,
         marijuana, and $103.00 [were] confiscated from Appellant
         upon his arrest.

(PCRA Court Opinion, filed May 6, 2019, at 2) (internal citations and footnote

omitted).

       At trial, the Commonwealth presented testimony from Philadelphia

Police Officer Cynthia Frye.      Officer Frye, a member of the Narcotics

Enforcement Team, participated in the surveillance operation on the night of

Appellant’s arrest. Officer Frye confirmed that Appellant entered Mr. Ramos’

vehicle, exited with a white plastic bag, and drove off in his own vehicle. When

the police attempted to stop Appellant, he did not pull over. Rather, Appellant

“made a couple of sharp turns,” before he “jumped out of the vehicle while it

was still moving. His vehicle struck two parked cars.” (N.T. Trial, 5/8/08, at

97).

       Appellant testified in his own defense, indicating that he exited the

convenience store and an unidentified male “asked me if I had a light.” (N.T.

Trial, 5/9/08, at 40). Appellant claimed he gave the man a light and drove

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off. Appellant acknowledged that police vehicles pursued him; however, he

indicated that he “turned and pulled over.”         (Id. at 41).    On cross-

examination, Appellant stated that Officer Frye lied about witnessing him jump

out of the vehicle. Appellant also denied causing an accident, claiming: “I

stopped. It never crashed.” (Id. at 49).

       Following Appellant’s testimony, the Commonwealth asked to present a

rebuttal witness. At that point, the court called a recess for the weekend.

When trial continued, the Commonwealth called Joseph Purfield, a retired

police officer who prepared the accident report (“the report”) regarding the

two parked cars struck by Appellant’s vehicle. The Commonwealth also sought

to introduce the report into evidence.

       Defense counsel immediately objected, arguing the Commonwealth did

not provide a copy of the report during discovery.1 Defense counsel concluded

that the Commonwealth’s failure amounted to a violation of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Nevertheless,

the trial court overruled defense counsel’s objection and permitted the

Commonwealth to introduce the report and the testimony from Mr. Purfield.

       On May 14, 2008, a jury found Appellant guilty of knowing or intentional

possession of a controlled substance, possession with intent to deliver a

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1 The Commonwealth first faxed the report to defense counsel sometime
during the trial recess that began on May 9, 2008. (See N.T. Trial, 5/12/08,
at 6).



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controlled substance, and fleeing or attempting to elude police officers.2 On

August 5, 2008, the court sentenced Appellant to an aggregate term of seven

(7) to fourteen (14) years’ imprisonment, followed by six (6) years’ probation.

This Court affirmed the judgment of sentence on November 30, 2009, and

Appellant did not seek further review with our Supreme Court.

        Appellant timely filed a pro se PCRA petition on January 25, 2010. On

July 12, 2011, the PCRA court reinstated Appellant’s right to file a petition for

allowance of appeal nunc pro tunc. Appellant filed his petition for allowance

of appeal nunc pro tunc, which our Supreme Court denied on December 19,

2012.

        On December 31, 2012, Appellant filed the current pro se PCRA petition.

The PCRA court appointed counsel, who filed a motion for leave to withdraw

and “no-merit” letter pursuant to Commonwealth v. Turner, 518 Pa. 491,

544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc).           On April 20, 2016, the PCRA court issued

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without a

hearing.

        Prior to the entry of a dismissal order, privately retained counsel entered

his appearance on Appellant’s behalf. The PCRA court continued the matter,

and Appellant filed a counseled, amended petition on October 21, 2016. In



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2   35 P.S. § 780-113(a)(16), (30), and 75 Pa.C.S.A. § 3733(a), respectively.

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the amended petition, Appellant challenged trial counsel’s effectiveness for

failing to request or receive the report prior to trial. Appellant also claimed

that direct appeal counsel was ineffective for failing to raise any issues related

to the Commonwealth’s failure to provide the report during discovery. The

PCRA court conducted evidentiary hearings on February 26, 2018 and July 24,

2018.     Appellant, trial counsel, and direct appeal counsel testified at the

hearings. On September 20, 2018, the court denied PCRA relief.

        Appellant timely filed a notice of appeal on October 21, 2018.3        On

November 7, 2018, the PCRA court ordered Appellant to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.            Appellant

timely filed his Rule 1925(b) statement on November 19, 2018.

        Appellant raises two issues for our review:

           WHETHER THE COURT ERRED IN NOT GRANTING RELIEF ON
           THE PCRA PETITION ALLEGING [THE] COMMONWEALTH
           COMMITTED A BRADY VIOLATION.

           WHETHER THE COURT ERRED IN DENYING APPELLANT’S
           PCRA   PETITION  REGARDING   TRIAL  COUNSEL’S
           INEFFECTIVENESS.

(Appellant’s Brief at 7).


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3Appellant’s notice of appeal was technically due on October 20, 2018, which
was a Saturday. See Pa.R.A.P. 903 (stating notice of appeal shall generally
be filed within thirty days after entry of order from which appeal is taken).
Accordingly, the notice of appeal Appellant electronically filed on Sunday,
October 21, 2018 was timely. See 1 Pa.C.S.A. § 1908 (providing general
guidelines for computation of time).



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       In his two issues, Appellant insists a prosecutor must disclose all

material information, including impeachment evidence. Appellant argues the

report constituted impeachment evidence, because it revealed a ten-minute

discrepancy regarding what time the police encountered Appellant on the night

at issue.4    Appellant maintains the Commonwealth could have reasonably

anticipated: 1) Appellant’s decision to testify and dispute the officers’ version

of events; and 2) the necessity to rebut Appellant’s potential testimony with

the   report.       Under     these     circumstances,   Appellant   contends   the

Commonwealth was obligated to provide the report during discovery, and its

failure to do so amounted to a Brady violation.

       Regarding prior counsels’ representation, Appellant claims trial counsel

was ineffective for failing to request the report during discovery. Appellant

asserts direct appeal counsel compounded trial counsel’s error by failing to

raise Brady issues on appeal. Based upon the foregoing, Appellant concludes

the PCRA court erred by denying PCRA relief. We disagree.

       Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795



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4 At trial, Officer Frye stated that the criminal episode occurred around 9:00
p.m. (See N.T. Trial, 5/8/08, at 90). The report lists the time of the accident
as 8:50 p.m. (See Commonwealth’s PCRA Ex. C-2).

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(2011). This Court grants great deference to the findings of the PCRA court if

the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74

(2007). We give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012).

      Pennsylvania law presumes counsel has rendered effective assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When

asserting a claim of ineffective assistance of counsel, the petitioner is required

to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and, (3) but for

the errors and omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different. Commonwealth v.

Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong

of the test for ineffectiveness will cause the claim to fail. Williams, supra.

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)

(quoting Commonwealth v. Geathers, 847 A.2d 730, 733 (Pa.Super.

2004)).


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         Once this threshold is met we apply the ‘reasonable basis’
         test to determine whether counsel’s chosen course was
         designed to effectuate his client’s interests. If we conclude
         that the particular course chosen by counsel had some
         reasonable basis, our inquiry ceases and counsel’s
         assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

         Prejudice is established when [an appellant] demonstrates
         that counsel’s chosen course of action had an adverse effect
         on the outcome of the proceedings. The [appellant] must
         show that there is a reasonable probability that, but for
         counsel’s unprofessional errors, the result of the proceeding
         would have been different. A reasonable probability is a
         probability sufficient to undermine confidence in the
         outcome. In [Kimball, supra], we held that a “criminal
         [appellant] alleging prejudice must show that counsel’s
         errors were so serious as to deprive the defendant of a fair
         trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)

(some internal citations and quotation marks omitted).

      “Under Brady and subsequent decisional law, a prosecutor has an

obligation to disclose all exculpatory information material to the guilt or

punishment of an accused, including evidence of an impeachment nature.”

Commonwealth v. Roney, 622 Pa. 1, 22, 79 A.3d 595, 607 (2013), cert.

denied, 574 U.S. 829, 135 S.Ct. 56, 190 L.Ed.2d 56 (2014). “To establish a

Brady violation, an appellant must prove three elements: (1) the evidence at

issue was favorable to the accused, either because it is exculpatory or because

it impeaches; (2) the evidence was suppressed by the prosecution, either

willfully or inadvertently; and (3) prejudice ensued.” Id.

      Instantly, the PCRA court determined the report was not material:

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         Here, the Commonwealth’s failure to produce the report
         neither enticed Appellant’s testimony nor “baited” him to lie.
         All of [the] discovery referenced an accident, and was
         supported by the testimony of the officers at trial. Appellant
         was on notice that the evidence established that he fled
         from police, jumped from his moving vehicle, and that an
         accident occurred.

(PCRA Court Opinion at 7) (internal citation omitted).

      Additionally, we emphasize Officer Frye’s testimony that the criminal

episode occurred “around” or “at approximately” 9:00 p.m. (See N.T. Trial,

5/8/08, at 90, 91, 125). Because the officer did not provide an exact time for

the incident, we cannot say that a discrepancy actually existed between her

testimony and the time listed in the report.     Therefore, the report did not

amount to impeachment evidence under Brady, and prior counsel cannot be

deemed ineffective on the grounds alleged by Appellant. See Roney, supra;

Poplawski, supra. Accordingly, we affirm the order denying PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/20




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