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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

MICKEY SANTOS COLON

                            Appellant                       No. 543 EDA 2015


                 Appeal from the PCRA Order January 23, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0001921-2010


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                             FILED SEPTEMBER 11, 2015

        Appellant, Mickey Santos Colon, appeals from the order entered

January 23, 2015, by the Honorable Ann Marie M. Wheatcraft, Court of

Common Pleas of Chester County, which denied his Post Conviction Relief

Act1 (“PCRA”) petition. We affirm.

        The PCRA court’s Rule 1925(a) opinion sets forth the relevant facts

and procedural history of this case.           Therefore, we only briefly summarize

them as follows. Herman McMullen, a confidential informant with a known

drug history, facilitated the controlled purchase of cocaine from Colon on two

occasions. A jury convicted Colon of two counts of possession with intent to


____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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deliver a controlled substance2 and two counts of criminal use of a

communication facility.3 The trial court sentenced Colon to an aggregate

term of 12 to 24 years’ incarceration.4          On appeal, this Court affirmed

Colon’s judgment of sentence, and the Pennsylvania Supreme Court denied

allocatur. See Commonwealth v. Colon, 226 EDA 2012 (Pa. Super., filed

Nov. 1, 2012) (unpublished memorandum), appeal denied, 67 A.3d 793

(Pa. 2013).

        Colon filed a timely PCRA petition.      The PCRA court conducted an

evidentiary hearing and later dismissed Colon’s petition. This timely appeal

followed.

        Appellant raises the following issues for our review:

____________________________________________


2
    35 P.S. § 780-113(a)(30).
3
    18 Pa.C.S.A. § 7512(a).
4
  The court imposed a mandatory minimum five-year sentence pursuant to
18 Pa.C.S.A. § 7508. See 18 Pa.C.S. § 7508(a)(3)(ii) (mandatory five year
sentence when the amount of cocaine involved is at least 10 grams but less
than 100 grams and at the time of sentencing defendant has been convicted
of another drug trafficking offense). We recognize that Section 7508 has
been found to be constitutionally invalid under Alleyne v. United States,
133 S.Ct. 2151 (U.S. 2013). See Commonwealth v. Newman, 99 A.3d 86
(Pa. Super. 2014) (en banc); Commonwealth v. Vargas, 108 A.3d 858
(Pa. Super. 2014) (en banc) (applying Newman to Section 7508). However,
to date, “neither our Supreme Court, nor the United States Supreme Court
has held that Alleyne is to be applied retroactively to cases in which the
judgment of sentence had become final.” Commonwealth v. Miller, 102
A.3d 988, 995 (Pa. Super. 2014). See also Commonwealth v. Riggle, ---
A.3d ---, 2015 Pa.Super. 147 (filed July 7, 2015) (finding Alleyne is not
entitled to retroactive effect in PCRA setting).



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      I.    Was the PCRA court’s dismissal of the Appellant’s
            ineffective assistance of counsel claim an error because
            trial counsel was ineffective when they failed to object to
            Mr. McMullen’s testimony about prior drug transactions
            between himself and Appellant which predated Mr.
            McMullen’s working with the police?

      II.   Was the PCRA court’s dismissal of the Appellant’s
            ineffective assistance of counsel claim [an] error because
            trial counsel was ineffective when they failed to object at
            trial or move for a mistrial when the Commonwealth
            witnesses characterized Appellant as a high-level drug
            dealer?

Appellant’s Brief at 4.

      “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

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

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[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). 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).

These issues must be neither previously litigated nor waived.         See 42

Pa.C.S.A. § 9543(a)(3). “[T]his Court applies 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).


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     As this Court has repeatedly stated,

     [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. Chmiel, 612
     Pa. 333, 30 A.3d 1111, 1127 (2011).

Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012),

appeal denied, 64 A.3d 631 (Pa. 2013). A failure to satisfy any prong of

the Pierce test will require rejection of the claim. See Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). Moreover, deference is given to the

PCRA court’s credibility determination if supported by the record. See

Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014).

     Colon first argues that trial counsel were ineffective for failing to object

to McMullen’s testimony at trial regarding prior drug transactions between

himself and Colon.    See Appellant’s Brief at 11.       Specifically, McMullen

testified that he had purchased $6,000 worth of drugs from Colon on one

occasion in May 2009, and that he then purchased drugs from Colon on a

weekly basis that entire year. See N.T., Trial, 10/6/10 at 180-182.

     We note that “the admission of evidence is within the sound discretion

of the trial court and will be reversed only upon a showing that the trial

court clearly abused its discretion.” Commonwealth v. Fransen, 42 A.3d

1100, 1106 (Pa. Super. 2012) (internal citations omitted).

     It is impermissible to present evidence at trial of a defendant’s prior

bad acts or crimes to establish the defendant’s criminal character or


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proclivities.   See Pa.R.E. 404(b); Commonwealth v. Hudson, 955 A.2d

1031, 1034 (Pa. Super. 2008). Such evidence, however, may be admissible

“where it is relevant for some other legitimate purpose and not utilized

solely to blacken the defendant’s character.” Commonwealth v. Russell,

938 A.2d 1082, 1092 (Pa. Super. 2007) (citation omitted).

      Initially, we note that it appears from the record that the admissibility

of the prior bad acts evidence in the nature of McMullen’s testimony was

previously litigated in the lower court. In its Rule 1925(a) opinion, the PCRA

court correctly points out that the trial court determined on direct appeal

that the “purpose of this evidence was offered to show motive, opportunity,

intent, preparation, a common scheme or plan, knowledge, identity or

absence of mistake or accident.” PCRA Court Opinion, 4/17/15 at 9. See

also, Trial Court Opinion, 3/23/12 at 16-17.     This Court affirmed the trial

court’s ruling on appeal. See Colon, supra (affirming judgment of sentence

on the basis of the trial court’s Rule 1925(a) opinion). Accordingly, Colon

cannot establish that the underyling issue regarding the admissibility of the

prior bad acts testimony has arguable merit, and counsel was not ineffective

for failing to object to it.

      Even assuming, arguendo, that the underyling issue did have arguable

merit, Colon cannot establish actual prejudice resulted from counsel’s failure

to object to McMullen’s prior acts testimony.       The record reveals that,

immediately following McMullen’s testimony, the trial court instructed the

jury regarding the limited purpose of the prior bad acts testimony.        The

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court specifically instructed the jury that they must not regard the “evidence

of these other bad situations as showing that the defendant is either a

person of bad character or criminal tendencies from which you might be

included to infer guilt on these two occasions with which he is charged.”

N.T., Jury Trial, 10/6/10 at 235-236. The court further instructed that “any

testimony of other alleged bad conduct in the past on the part of [the]

defendant is not admitted for any purpose whatsoever other than to show

motive or course of conduct to set the scene of the charges in this case.”

Id. at 236. See also, N.T., Jury Trial, 10/6/10 at 149-151. We presume

the jury followed these instructions. See, e.g., Commonwealth v. Miller,

572 Pa. 623, 819 A.2d 504, 513 (2002). Therefore, Colon cannot establish

that he was prejudiced by the admission of the prior bad acts evidence and,

consequently, counsel’s failure to object thereto.

      Colon additionally argues that counsel was ineffective for failing to

either object to or declare a mistrial following Detective Michael Reich’s

characterization of Colon at trial as a “mid to high-level” drug dealer.

Appellant’s Brief at 19. This argument likewise fails.

      The PCRA court, based upon the testimony of counsel elicited at the

evidentiary hearing, determined that counsel had a reasonable basis for not

objecting to the detective’s characterization of Colon:

      During the re-cross examination of Detective Reich, defense
      counsel asked him to explain the difference between McMullen’s
      level of drug activity and [Colon’s] level of drug activity. We
      found it was to [Colon’s] advantage, and a reasonable strategy,
      for defense counsel to show the jury that McMullen was

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      testifying to save himself from further prosecution for his own
      drug dealings and that [his] testimony was self-serving.

PCRA Court Opinion, 4/17/15 at 10.

      The PCRA court further determined that the overwhelming evidence of

guilt presented at trial, including the telephone conversations in which Colon

agreed to sell drugs to McMullen, the meetings between McMullen and Colon

during which the informant obtained drugs, and Colon’s admission that he

had sold drugs prior to May and June of 2009, was such that Colon suffered

little to no prejudice as a result of the detective’s characterization. We find

no error in the PCRA court’s reasoning.

      We additionally note that the trial court promptly issued a curative

instruction following the detective’s testimony that specifically addressed the

characterization of Colon as a mid to high-level drug dealing:

            I want to tell you about the principles of law before we
      break for lunch. You have heard testimony that the authorities,
      police officers, believe that Mr. Colon was a drug dealer, and you
      have heard high-level. I don’t know what you have heard. But
      you have to recall that his is only charged with two separate
      incidents in this trial. He is not charged for other things.

            However, other crimes, wrongs or acts may be admitted
      for other purposes such as to prove motive, opportunity, intent,
      preparation and about mistaken identity, those sorts of things.
      There are special rules that go along with those. As I said, he is
      not charged here with being a mid-level drug dealing or bad acts
      in the past. …

            You must not regard this evidence of other conduct on his
      part that you might interpret as criminal or bad or improper that
      the defendant is either a person of bad character or criminal
      tendencies from which you might be inclined to infer his guilt of
      these two charges.

N.T., Trial, 10/6/10 at 149-150 (emphasis added).

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      We find the trial court’s instructions were sufficient to cure any

prejudice that may have resulted from the detective’s comments.          See

Miller, supra. Accordingly, as Colon fails to establish that counsel did not

have a reasonable basis for failing to object to the detective’s testimony or

that prejudice resulted therefrom, counsel cannot be deemed ineffective on

that basis.

      Based on the foregoing, we affirm the PCRA court’s dismissal of

Colon’s PCRA petition.

      Order affirmed.

      Judge Mundy concurs in the result.

      Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2015




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