J-S74045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 RODNEY LEGGETT                            :
                                           :
                    Appellant              :    No. 213 EDA 2018

                  Appeal from the PCRA Order July 25, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0002638-2012


BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                           Filed March 19, 2019

      Rodney Leggett appeals from the order denying his petition for relief

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

9546. Leggett asserts his trial counsel was ineffective for failing to call three

witnesses to testify at trial. We affirm on the basis of the PCRA court’s opinion.

      The trial court convicted Leggett in 2013 of violating the statute

delineating persons not to possess firearms. See 18 Pa.C.S.A. § 6105(a)(1).

The PCRA court’s opinion recounts the evidence presented at trial, and we

need not restate it here. See PCRA Court Opinion, filed 8/23/18, at 2 (quoting

Commonwealth v. Leggett, 100 A.3d 302 (Pa.Super. 2014) (unpublished

memorandum)). Suffice it to say, Leggett protested that the firearm the police

found in his apartment did not belong to him, as the police found it in a room

rented by Robert Whaley, a fact that Leggett asserts was evidenced by the

testimony of his friend, Latifah Cade. Leggett appealed his conviction on the
J-S74045-18



basis that the verdict was unsupported by sufficient evidence. We affirmed

Leggett’s judgment of sentence, noting that other evidence, such as the police

officer’s testimony that he observed Leggett leave the room were the firearm

was found just prior to the search, was sufficient to prove Leggett

constructively possessed the firearm. The Supreme Court denied review.

      Leggett filed a timely first PCRA petition. The PCRA court appointed

counsel, who filed an amended petition asserting that Leggett’s trial counsel

was ineffective for failing to call three additional witnesses, including Whaley,

to testify that Whaley rented the room where the police found the firearm.

      The court held a hearing, at which Leggett testified that he had spoken

with the witnesses prior to trial, and they had agreed to testify on his behalf;

he told his trial counsel of their existence, and counsel said he would contact

the witnesses; and, at trial, counsel told Leggett that he “couldn’t get in touch

with” the witnesses. N.T., 7/25/17, at 9. Leggett also testified that the

witnesses were no longer willing to testify on his behalf. The parties entered

a stipulation that Leggett’s trial counsel would have testified at the PCRA

hearing that he recalls representing Leggett; he investigated potential

witnesses during the course of his representation; he cannot recall the three

potential witnesses to which Leggett now refers; and “his standard practice is

to call willing and available witnesses whose testimony would aid the defense.”

Id. at 13. The PCRA court denied relief.




                                      -2-
J-S74045-18



      Leggett appealed, and presents the following issue:

      Did the lower court err in denying [Leggett]’s PCRA petition where
      [Leggett] testified that three witnesses were willing to testify on
      his behalf but were never contacted by trial counsel?

Leggett’s Br. at 3.

      Our review of denial of PCRA relief “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. Medina, 92

A.3d 1210, 1214 (Pa.Super. 2014) (quoting Commonwealth v. Koehler,

legal 36 A.3d 121, 131 (Pa. 2012)). We are bound by any credibility

determinations made by the PCRA court and supported by the record, but

apply a de novo standard of review to the PCRA court’s legal conclusions. Id.

at 1214-15.

      “Counsel is presumed effective, and [a petitioner] has the burden of

proving otherwise.” Commonwealth v. Brown, 161 A.3d 960, 965

(Pa.Super. 2017). To overcome this presumption, a petitioner must plead and

prove that: “(1) the underlying claim has arguable merit; (2) counsel had no

reasonable basis for his or her action or inaction; and (3) the petitioner

suffered prejudice because of counsel’s ineffectiveness.” Commonwealth v.

Paddy, 15 A.3d 431, 442 (Pa. 2011) (citation omitted). Specifically, when an

ineffectiveness claim is premised on counsel’s failure to present a witness, the

petitioner must demonstrate that: “(1) the witness existed; (2) counsel was

either aware of or should have been aware of the witness’s existence; (3) the



                                      -3-
J-S74045-18



witness was willing and able to cooperate on behalf of the defendant; and (4)

the proposed testimony was necessary to avoid prejudice to the defendant.”

Commonwealth v. Tharp, 101 A.3d 736, 757 (Pa. 2014) (quoting

Commonwealth v. Bryant, 855 A.2d 726, 746 (Pa. 2004)). To establish

prejudice, a petitioner must prove that “there is a reasonable probability that

the outcome of the proceedings would have been different had counsel not

been ineffective in the relevant regard.” Commonwealth v. Dennis, 950

A.2d 945, 954 (Pa. 2008). Failing to satisfy even one of these factors requires

this Court to reject the ineffectiveness claim. Id.

      In its Rule 1925(a) opinion, the PCRA court explained that Leggett had

failed to establish that his trial counsel did not attempt to produce the three

witnesses at trial. The court pointed to Leggett’s own testimony that counsel

had said he had been unable to contact the witnesses, the stipulation that

counsel would have testified that he had investigated all potential witnesses,

and Leggett’s failure to produce the witnesses at the PCRA hearing. PCRA Ct.

Op. at 7.

      The court also determined that even if the witnesses had testified at

trial, “additional witness testimony as to who rented the back bedroom would

[not have] changed [the trial court]’s finding that [Leggett] constructively

possessed the rifle.” Id. at 6. The PCRA court observed that trial judge, as

finder of fact, had already considered Cade’s trial testimony that Leggett did

not rent the back room, and found it “did not refute the fact that the

Commonwealth proved [Leggett] had full access to the back bedroom[.]” Id.

                                      -4-
J-S74045-18



     After a review of the parties’ briefs, the certified record, and the relevant

law, we find no abuse of discretion or error in the PCRA court’s analysis. We

thus affirm on the basis of the well-reasoned opinion of the Honorable Charles

A. Erlich, which we adopt and incorporate herein. See PCRA Ct. Op. at 5-8.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2019




                                     -5-
                                                                                   Circulated 02/19/2019 12:04 PM




         FILED
    �OIB RUG
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         a IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
             23 PHRRS1i JUDICIAL DISTRICT OF PENNSYLVANIA
  OFFICE OF JUDICIAL REcoJ:8-:J.AL DIVISION - CRIMfNAL SECTION
       CRIMl�!/\.l DI VISION
    FJRST ,JUDICIAL OiSTRICT
       or PENNSYLVl-'�HJ\
        Commonwealth of Pennsylvania
                                                          CP-51-CR-0002638-2012

                      v.
                                                          SUPERIOR COURT
        Rodney Leggett                                    NO. 213 EDA 2018



                                                                  CP-51-CR-0002638-2012 Comm.   v.   Legget!, Rodney
                                                                                    Opinion
                                         OPINION


Ehrlich, J.
                                                                      1111111111111111 I IIIII
                                                                               8154108741
                                                                                                           Ill
        Rodney Leggett, hereinafter referred to as Appellant, filed an appeal from this Court's

Order of July 25, 2017 granting the Commonwealth's Motion to Dismiss his Amended Petition,

which had sought relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§

9541 et seq.


                                 Factual and Procedural History


        On February 11, 2013 appellant was found guilty following a bench trial before the

Honorable Chris R. Wogan, now retired, of violating 18 Pa.C.S. §6105(a)(l), felon not to be in

possession of a firearm.   On April 9, 2013, appellant was sentenced by Judge Wogan to 56-120

months incarceration. Appellant appealed and his conviction and sentence were affirmed by our

Superior Court in a memorandum decision filed on March 10, 2014. 1




11176   EDA 2013
      The Superior Court's opinion summarized the evidence at trial as follows:

               "On February 12, 2012, Philadelphia police detectives �xecuted a search
      warrant for the property at 6100 Callowhill Street in Philadelphia. The police had
      received information from a person that Shakeriah Curry, a resident of the second
      floor apartment at that address was illegally obtaining cable television and having
      the serviced billed to the complainant. The complainant also indicated that the
      defendant, Rodney Leggett was a resident of the same second floor apartment.
               When Detectives John Leinmiller and Gilson served the warrant, Detective
      Leinmiller looked through the small window in the front door of the building. He
      observed Leggett come to the front door from the upstairs hallway. After entering
      the residence, he determined that the only place Leggett could have come from was
      the back second-floor bedroom. Despite initially acting in an irate manner, Leggett
      allowed the police to enter. However, because of his initial reaction to the police
      presence, it was necessary to handcuff Leggett to insure the detectives' safety.
               In addition to Leggett, there were two or three adult women in the
      apartment, as well as some children in the back bedroom. The children were
      watching television. While searching the back bedroom, in plain view on a bedside
      table, detective Leinmiller observed 13 red gauge shotgun shells. Under the bed,
      the detective found a .22 caliber rifle, loaded with 11 live rounds of ammunition;
       10 rounds were in a magazine and one was in the chamber. There were also two
      boxes of .22 caliber ammunition under the bed, containing a combined 84 live
      rounds. Additionally, the police found a Comcast bill addressed to Leggett at the
      Callowhill address.[Footnote 6: the Comcast bill was introduced to show proof of
      residency. Leggett did not dispute the fact that he lived there.] Counsel stipulated
      that Leggett had been convicted of a felony and was ineligible to possess a firearm.
               In his defense, Leggett presented the testimony of Latifah Cade, who
      testified that Leggett was her best friend. Additionally, she testified she had been
      temporarily living at the Callowhill residence, in the front bedroom with Leggett
      and his girlfriend, Curry. She claimed that Curry had rented the back bedroom to
      a person named Robert Whaley and that she was present when Curry accepted
       money from Whaley and provided him with receipts. [Footnote 7: Police found a
       letter addressed to Whaley during their search, however the address was different.
       Detective Leinmiller testified he checked Whaley's address and determined that he
       did not live at the Callowhill address]. Although she had never seen the rifle prior
       to the police finding it, she believed it belonged to Whaley. [Footnote 8: Although
       Detective Leinmiller did not identify to whom the gun was registered, he testified
       that it was not registered to either Leggett or Whaley]. Cade testified that at the
       time the rifle was found, she told the detectives that the gun belonged to Whaley.
       Detective Leinmiller testified that he had not been so informed. Neither Whaley
       nor Curry testified at trial."

Commonwealth v. Leggett, 1176 EDA 2013, 03/10/2014 (memorandum decision), pp. 1-4.




                                                2
        The only error raised by appellant on direct appeal was whether there was sufficient

evidence to support his conviction for possession of the rifle. The Superior Court, guided by their

decision in Commonwealth v, Aviles, 615 A.2d 398,(Pa. Super. 1992) affirmed the trial court's

decision and found that the evidence presented at trial proved that appellant had constructive

possession of the rifle.2 In so finding, our Superior Court, noted that:

                "Leggett was a resident of the address and received mail there. As the police
        waited outside for someone to answer the door, they witnessed Leggett coming
        from the area of the back bedroom. The back bedroom was open and occupied by
        children at the time the police searched the residence. Shotgun ammunition was
        plainly visible on a side table in the back bedroom. A loaded .22 caliber rifle and
        84 extra rounds of .22 caliber ammunition were found in the back bedroom, under
        the bed.
                The trial court made no specific finding regarding whether Whaley had
        rented the room. However, the trial court noted that as a resident of the apartment,
        the fact that the back bedroom was open and accessible to anyone, occupied by
        children, Leggett was seen leaving the back bedroom area and Whaley was not
        present (as far as the record reveals he was never present at all), gave rise to the
        permissible presumption that Leggett had access to the back bedroom.
        Additionally, the trial court noted that the plainly visible ammunition demonstrated
        the likelihood that Leggett was aware of the firearm."

Commonwealth v. Leggett, 1176 EDA 2013, 03/10/2014 (memorandum decision), p. 6.

         Thereafter, appellant filed a timely Petition for Allowance of Appeal with the Supreme

Court of Pennsylvania, which was denied by Order dated August 5, 2014.

         Appellant then filed a timely pro se petition for relief pursuant to the Post Conviction Relief

Act. Peter A. Levin, Esquire, who was subsequently appointed to represent the appellant, filed an

Amended PCRA petition on May 2, 2016. On November 26, 2016, the undersigned trial judge,

Charles A. Ehrlich, by Administrative Order, was reassigned this PCRA matter, replacing Judge

Wogan, who had retired from the bench. On February 28, 2017, the Commonwealth filed a Motion

to Dismiss appellant's amended petition.



2
    Commonwealth v. Leggett, memorandum decision, p. 6


                                                    3
       This court carefully reviewed appellant's amended petition and the Commonwealth's

Motion to Dismiss, and independently reviewed the entire record, and after a hearing and

considering the arguments of counsel, dismissed appellant's Amended PCRA Petition on July 25,

2017. Petitioner then filed a timely appeal of this court's Dismissal Order to the Superior Court.

       In appellant's collateral attack of his conviction he avers the following:

        Did the lower court err in denying defendant's PCRA petition where the defendant
testified that three witnesses were willing to testify on his behalf but were never contacted
by trial counsel?

Appellant's Pa.R.A.P. 1925(b) Statement.



                                       Standard of Review

       The law presumes that counsel was effective, and therefore Petitioner carries the burden of

proving that counsel was ineffective. Commonwealth v. Baker, 614 A.2d 663, 673 (Pa. 1992).

Therefore, when a claim of ineffective assistance of counsel is made, it is the petitioner's burden

to prove such ineffectiveness; that burden does not shift. Commonwealth v. Cross, 535 Pa. 38,

634 A.2d 173, 175 (1993), cert. denied, 513 U.S. 833 (1994); Commonwealth v. Marchesano, 519

Pa. 1, 544 A.2d 1333, 1335-36 (1988). To establish ineffectiveness under the PCRA, a Petitioner

must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of

conduct was without any reasonable basis designed to effectuate his or her client's interest; and

(3) that he or she was prejudiced by counsel's ineffectiveness. Commonwealth v. Kimball, 724

A.2d 326, 333 (Pa. 1999); Commonwealth v. Lauro, 819 A.2d 100, 105-106 (Pa. Super. 2003).

Prejudice in the context of ineffective assistance of counsel means establishing that there is a

reasonable probability that, but for counsel's alleged errors, the outcome of the trial would have

been different. Commonwealth v. Bond, 572 Pa. 588, 603, 819 A.2d 33, 42 (2002). Counsel is




                                                 4
never ineffective for failing to make a frivolous objection or motion.     Commonwealth v. Groff,

514 A.2d 1382, 1386 (Pa. Super. 1986), appeal denied, 531 A.2d 428 (Pa. 1987); Commonwealth

v. Davis, 459 A.2d 1267, 1271 (Pa. Super. 1983). Failure to satisfy any prong of the test for

ineffectiveness will require rejection of the claim. Commonwealth v. Hudson, 820 A.2d 720, 726

(Pa. Super. 2003).

         Moreover, ineffectiveness only occurs where the alternative not selected offered a potential

for success substantially greater than the tactics used by counsel. Where it is clear that allegations

of ineffectiveness of counsel are baseless or meritless, then an evidentiary hearing is unnecessary

and the unfounded allegations should be rejected and dismissed. Commonwealth v. Clemmons,

479 A.2d 955, 957 (Pa. 1984).



                                        DISCUSSION

            Failure to Contact Witnesses Who Were Willing to Testifv on Appellant's Behalf


         Appellant contends that his trial counsel was ineffective for failing to contact three

witnesses, namely, Shakeriah Curry, Tyiecha Curry and Robert Whaley. Appellant argues that if

presented during trial, these witnesses would have testified that appellant "had nothing to do with

the back room and that he had nothing to do with the firearms."! At the PCRA hearing appellant

testified that although he lived in the subject house, he did not live in the particular bedroom where

the rifle and ammunition were found by the police.4 Appellant testified that both Shakeriah Curry




3
    Appellant's Amended PCRA Petition at p. 9
4
    PCRA Hearing, July 25, 2017, p. 10


                                                   5
and Tyiecha Curry would have testified that appellant had "nothing to do with that back bedroom"

and that Robert Whaley would have testified that he was the one renting the bedroom. 5

           As stated above, appellant must prove all three prongs for counsel to be deemed

ineffective. Lauro, supra at l 05-106. Appellant contends that he has satisfied the third prong,

prejudice, arguing that had these witnesses testified, it would have then been left to the trier of fact

[Judge Wogan] to decide if their testimony rebutted the Commonwealth's case. As Kimball and

Lauro, supra, instruct, appellant must prove that but for counsel's alleged errors, the outcome of

the trial would have been different. However, Judge Wogan, in his Pa. R.A.P. l 925(a) opinion

discredited appellant's attempt at trial to establish that a "Robert Whaley" had rented the back

bedroom from appellant's girlfriend as testified to by appellant's "best friend" Latifah Cade.6

Judge Wogan, in citing, Commonwealth v. Aviles, 419 Pa.Super 345, 355, 615 A.2d 39 (1992) and

Commonwealth v. Parsons, 391 Pa.Super 273, 570 A.2d 1328 (1990) opined that despite the

appellant's argument that he did not rent the back bedroom, the commonwealth had still proven

that appellant had constructive possession of the rifle. As Judge Wogan opined:

          Nevertheless, this testimony did not refute the fact that the Commonwealth

          proved the defendant had full access to the back bedroom as set forth above.

Trial Court Opinion, Judge Wogan, July 12, 2013, p. 5-6

          Therefore, since the trial court based its finding of appellant's guilt on constructive

possession rather than actual possession, additional witness testimony as to who rented the back

bedroom would have not have changed Judge Wogan's finding that appellant was in constructive

possession of the rifle. Therefore, as appellant is unable to show that he was in fact prejudiced by




5   Id. p. 11
6   Trial Court Opinion, Judge Wogan, July 12, 2013, p. 5


                                                   6
counsel's alleged failure to present additional witnesses, his claim of ineffectiveness is without

merit.

         Further, appellant, at his PCRA hearing was unable to establish that trial counsel failed to

contact and present these three additional witnesses. To the contrary, appellant testified at his

PCRA hearing that trial counsel had in fact told him that he would contact these witnesses and

then advised him prior to trial that he was not able to make contact with them.7 Further, Judge

Wogan, in his opinion, stated that defense counsel had advised the court at trial that he had been

searching for one of those witnesses, Mr. Whaley, for a year and was unable to locate him.8

         Moreover, there was a stipulation between the parties at the PCRA hearing that if trial

counsel were called to testify he would have testified that although he had no particular recollection

of the names of these three witnesses, he did investigate potential witnesses during his

representation of appellant in this case, as he does with all cases. 9 Perhaps most telling was

appellant's testimony that he himself was unable to produce any of these three witness to testify at

his PCRA hearing.!? Therefore, appellant has failed to prove his contention that trial counsel did

not attempt to contact these witnesses.

         Accordingly, appellant has failed to prove that his claim of ineffectiveness has arguable

merit or that he was prejudiced. As such, his claim of ineffectiveness is without merit.




7  PCRA Hearing, July 25, 2017, p. 9, p.12
8
   Trial Court Opinion, July 12, 2013, p. 5
9 PCRA
           Hearing, July 25, p. 13
10
   Id. p. 12


                                                   7
                                           Conclusion

       Petitioner has failed to demonstrate any basis for relief for his claim of ineffective

assistance of counsel.   In the absence of any meritorious challenge that can be found in the

reviewable record, Petitioner has failed to articulate his allegations in accordance with the

requisites of a claim predicated upon counsel's ineffectiveness. Therefore, no relief is due.

       Accordingly, for the foregoing reasons, the dismissal of Petitioner's Petition for Post-

Conviction Relief should be affirmed.



                                                     By the Court:




                                                     CHARLES A. EHRLICH,                   J.




                                                 8
