J-S04032-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    Appellee             :
                                         :
                    v.                   :
                                         :
TRAVIS DIONTE SIMMS,                     :
                                         :
                    Appellant            :     No. 401 WDA 2015

                Appeal from the PCRA Order February 4, 2015
              in the Court of Common Pleas of Cambria County
            Criminal Division, at No(s): CP-11-CR-0001902-2011

BEFORE:    BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED FEBRUARY 29, 2016

      Travis Dionte Simms (Appellant) appeals from an order denying his

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

§§ 9541-9546. We affirm.

      This Court previously summarized the facts underlying this matter as

follows:

            On September 27, 2011, law enforcement officials were
      serving an arrest warrant on Cirilito Cheatham and a search
      warrant for his residence at 816 Park Avenue, Johnstown, after
      having engaged Cheatham in a controlled drug purchase. Police
      arrested Cheatham outside the home while he was standing in
      an alleyway. At the time, Cheatham was near a parked vehicle,
      which was waiting for him.        Appellant was located in the
      backseat and another person was driving that vehicle. Vincent
      Arcurio, a deputy sheriff in Cambria County for seventeen years
      and a part-time detective with the Cambria County Drug Task
      Force for thirteen years, knew Appellant as an individual with an
      extensive criminal history. He removed Appellant from the car
      and handcuffed him.        Shortly thereafter, he performed a
      pat-down search. During the pat-down, Detective Arcurio felt a

*Retired Senior Judge assigned to the Superior Court.
J-S04032-16

      packet of rice, which he remarked was used to package drugs.
      Detective Arcurio then recovered twelve glassine stamp bags
      containing .20 grams of heroin. Appellant admitted to selling
      drugs to certain individuals to feed his own drug habit.

Commonwealth v. Simms, 91 A.3d 1287 (Pa. Super. 2013) (unpublished

memorandum at 1-2).

      On February 23, 2012, following a jury trial, Appellant was found guilty

of possession with intent to deliver (PWID) (heroin), possession of heroin,

and possession of drug paraphernalia.      He was sentenced to an aggregate

term of two years and three months to seven years of incarceration.          On

November 15, 2013, this Court affirmed Appellant’s judgment of sentence.

Id.

      On November 10, 2014, Appellant pro se timely filed the PCRA petition

at issue.1 Therein, Appellant alleged that his trial counsel was ineffective for

failing to object to the Commonwealth’s publication to the jury of Cambria

County Drug Task Force Personal History Report DLE-6 (Form DLE-6), which

contained information relating to Appellant’s prior criminal record.      PCRA

Petition, 11/10/2014, at 4.      Counsel was appointed and, following an

evidentiary hearing, the PCRA court denied Appellant’s petition.



1
  Appellant pro se filed a PCRA petition on July 3, 2013, which the PCRA
court dismissed without prejudice, explaining that Appellant was ineligible
for PCRA relief because his direct appeal was still pending.           See
Commonwealth v. Kubis, 808 A.2d 196, 198 n.4 (Pa. Super. 2002) (“The
PCRA provides petitioners with a means of collateral review, but has no
applicability until the judgment of sentence becomes final.”).


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      Appellant timely filed a notice of appeal.        The PCRA court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and one was filed. The PCRA court filed its

opinion pursuant to Pa.R.A.P. 1925(a) on April 30, 2015.            On appeal,

Appellant contends that the PCRA court erred in denying post-conviction

relief on his ineffective-assistance-of-counsel claim above.

             Our standard of review for an order denying post-
      conviction relief is whether the record supports the PCRA court’s
      determination, and whether the PCRA court’s determination is
      free of legal error. The PCRA court’s findings will not be
      disturbed unless there is no support for the findings in the
      certified record.

Commonwealth v. McDermitt, 66 A.3d 810, 813 (Pa. Super. 2013)

(internal citation omitted).

      Appellant takes issue with Form DLE-6’s publication to the jury

because the bottom of the form contains the words “Robbery, Poss.” in the

field next to the one labeled “Prior Criminal Record,” and the words “Not Yet”

in the field next to the ones labeled “Currently On?” and “Probation.” Form

DLE-6, Commonwealth Exhibit 5.              Appellant argues that the form’s

publication prejudiced the jury against him based on the information it

contained relative to his prior criminal record and, thus, his trial counsel was

ineffective for failing to object to its publication.

      In order to obtain relief based on a claim of ineffective assistance of

counsel under the PCRA, “a petitioner must show that such ineffectiveness




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‘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.’”    Commonwealth v. Cam Ly, 980 A.2d 61, 73 (Pa.

2009) (quoting 42 PA.C.S. § 9543(a)(2)(ii)). A petitioner must prove that:

      (1) the underlying claim is of arguable merit; (2) counsel’s
      performance lacked a reasonable basis; and (3) the
      ineffectiveness of counsel caused the petitioner prejudice. A
      chosen strategy will not be found to have lacked a reasonable
      basis unless it is proven that an alternative not chosen offered a
      potential for success substantially greater than the course
      actually pursued. To demonstrate prejudice, the petitioner must
      show that there is a reasonable probability that, but for counsel’s
      error or omission, the result of the proceeding would have been
      different.    A reasonable probability is a probability that is
      sufficient to undermine confidence in the outcome of the
      proceeding. A failure to satisfy any one of the three prongs of
      the test for ineffectiveness requires rejection of the claim.

Id. (internal quotation marks and citation omitted).

      Upon review, we conclude that the PCRA court did not err in rejecting

Appellant’s ineffectiveness claim. Specifically, Appellant has not established

that trial counsel’s failure to object to the publication of Form DLE-6 to the

jury resulted in prejudice to him.     Appellant admitted to having heroin

packaged in rice on his person at the time he was patted down.              N.T.,

2/23/2012, at 122-23.      Moreover, as stated by this Court in rejecting

Appellant’s sufficiency claims on direct appeal, the evidence at trial

established “that Appellant possessed $360 worth of heroin, admitted to

selling heroin in the past, was located outside of a suspected drug house,

and did not possess items normally associated with personal use of the



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drug.”   Commonwealth v. Simms, 91 A.3d 1287 (Pa. Super. 2013)

(unpublished memorandum at 8). In light of this other evidence establishing

Appellant’s guilt, Appellant has failed to show that prohibiting publication of

Form DLE-6 to the jury would have changed the outcome of his trial.2

      Because   Appellant   has   not   met   the   prejudice   prong   of   the

ineffectiveness test, his claim must fail. The PCRA court, therefore, did not

err in denying Appellant post-conviction relief.    Accordingly, we affirm the

order of the PCRA court.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




2
  Appellant argues that, “[i]n viewing the publishing of [Form DLE-6] in a
realistic manner, if only one juror relied on the former possession conviction
to convict [Appellant], then [Appellant] did not receive a trial by a fair and
impartial jury.    One juror could have been the difference between a
conviction and an acquittal.” Appellant’s Brief at 4. We observe that
“[u]nsupported speculation does not establish reasonable probability.”
Commonwealth v. Charleston, 94 A.3d 1012, 1026 (Pa. Super. 2014).



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Date: 2/29/2016




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