J-S20016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                     v.

MARK IVORY,

                          Appellant                     No. 651 WDA 2014


               Appeal from the PCRA Order Entered April 8, 2014
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0000125-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                                  FILED MAY 7, 2015

        Appellant, Mark Ivory, appeals from the order denying his petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. We affirm.

         On February 21, 2012, Appellant was charged with possession of a

controlled substance with intent to deliver (“PWID”), possession of a

controlled substance, and criminal conspiracy. On May 2, 2012, a jury found

Appellant guilty of all charges, and on August 17, 2012, the trial court

imposed an aggregate sentence of four to fifteen years of incarceration.

Appellant filed a timely post-sentence motion seeking modification of his

sentence. The trial court denied Appellant’s motion on September 11, 2012,

and October 5, 2012, Appellant filed a timely notice of appeal. On April 1,

2013,     this   Court    affirmed    Appellant’s     judgment   of   sentence.
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Commonwealth v. Ivory, 1555 WDA 2012, 75 A.3d 540 (Pa. Super. filed

April 1, 2013) (unpublished memorandum).

      On July 22, 2013, Appellant filed a timely PCRA petition.     The PCRA

court appointed counsel, and on November 9, 2013 and December 12, 2013,

the PCRA court held hearings on Appellant’s petition. In an order filed on

April 8, 2014, the PCRA court denied Appellant’s petition. This timely appeal

followed.

      On appeal, Appellant raises the following issue for this Court’s

consideration:

      I.    Whether the PCRA Court erred in not finding Trial Counsel
            to have been ineffective for eliciting otherwise inadmissible
            evidence of [Appellant’s] criminal history/pending charges,
            and for failing to request [a] cautionary instruction from
            the Trial Court.

Appellant’s Brief at 2.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).      The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).




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      When considering an allegation of ineffective assistance of counsel,

counsel is presumed to have provided effective representation unless the

PCRA petitioner pleads and proves that:           (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his or her conduct;

and   (3)   Appellant    was   prejudiced   by    counsel’s   action   or   omission.

Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). “In order

to meet the prejudice prong of the ineffectiveness standard, a defendant

must show that there is a ‘reasonable probability that but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).

An allegation of ineffective assistance of counsel will fail if the petitioner

does not meet any of the three prongs. Commonwealth v. Williams, 863

A.2d 505, 513 (Pa. 2004). Thus, when it is clear that an appellant has failed

to meet the prejudice prong of an assertion of ineffective assistance of

counsel, the claim may be disposed of on that basis alone, without a

determination    of     whether   the   first    two   prongs   have    been    met.

Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).                     “The

burden of proving ineffectiveness rests with Appellant.” Commonwealth v.

Rega, 933 A.2d 997, 1018 (Pa. 2007).

      Appellant contends that counsel was ineffective at trial for eliciting

testimony that referenced his criminal history.           Appellant’s Brief at 3.




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Specifically,   Appellant   refers    to   trial   counsel’s    cross-examination    of

Commonwealth witness Detective Kevin Price:

      [Appellant’s Counsel]      Q:    Do     you    have      those   papers   of
      [Appellant’s]?

      A: I called my office to see if you picked them up and they were
      up? [sic] You haven’t picked them up, they are sitting in my
      office ….

      Q: Do you have an inventory of what those papers are, did you
      make one?

      A: I know what they are, yes.

      Q: Did you write an inventory of what they were that you were
      giving to me, did you have one available?

      A: No. We had personal papers, and I believe we might have put
      what the papers were. I didn’t go through those papers, I didn’t
      like analyze those. I didn’t want to analyze them. I didn’t want
      to look at them.

      Q: What indication did you have to believe they belonged to
      [Appellant]?

      A: His name was on them, several of them.

      Q: They will be available this afternoon?

      A: If you want to put it in evidence, that’s fine like I said, there
      was a reason why I didn’t go through the papers, I didn’t want
      to. I didn’t feel it was proper for me to do that.

N.T., 5/1/12, at 92-93. The cross-examination continued as follows:

      Q: I understand. This bag of these personal papers and the
      items that you described that the box with the wax bags were in,
      how was it found in the crib or the play pen?

      A: It was found folded down, the actual crib/play pen was folded
      down on the ground and it was sitting sort of in the middle of it
      and the bag, the bag was there.

      Q: When you looked, you could see?




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     A: I opened up the bag, I believe, I opened up the bag, and I
     immediately saw these personal papers, so I was a little le[e]ry.

     Q: Kind of digging through with your eyes closed?

     A: Not my eyes closed, no, I tried not to look at the contents of
     what was written on the papers because again, I felt that it was
     not proper for me to do that.

     Q: Not really the focus of your search basically as well?

     A: It wasn’t proper. I didn’t, I saw these papers and I am
     thinking I don’t think I should look at these. That’s what I
     thought. I moved these papers aside and they were the items
     and I took whatever items that I could put the personal papers
     back in, and I believe closed up the bag a little bit and we took
     the bag.

     Q: I have a copy of your inventory with regard to that contents
     search and seized property, and there is some notation in the
     right-hand side, AB, VA, these would be initials of the other
     agents that were with you?

     A: That’s who found or again seized the property or what not,
     but again, I was there during the search and the items being
     found. I didn’t claim the bag that we found, I don’t know who
     would have claimed the bag as far as finding it.

     Q: I was just looking through this inventory, sorry, I saw KP on
     it?

     A: I am the one that filled it out, but when we found that
     bag, Mr. Kasaback, and God, I don’t know what I can say
     or what I am allowed to say.

     Q: I am just trying to get this clear.

     A: We treated that bag like very private because we didn’t want
     to be accused of things and those papers, we were very careful
     with them. We didn’t want to go through those. We didn’t want
     to be accused of going through them.

     Q: I guess the inference here is if these items are found and you
     are saying they are consistent with the packaging of heroin and
     his personal papers are found in that bag, I guess why would
     they be turned over and not kept as part of evidence in this case
     by showing there was an inference from his property and these


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     other items, which would be the inference of his property as
     well?

     A: Are you talking about why I was turning the papers over?

     Q: Yes.

     A: You requested that property be turned over, they were court
     papers.    They were court documents, they were criminal
     charges, they were everything that as far as his cases go, his
     personal notes as far as how he was going to defend his cases.
     That’s what was there.

     Q: Do you know whether those items were cataloged or
     inventoried?

     A: I did not go through those items, I know what. I saw what
     was were [sic], we handled them very carefully. You were to
     pick them up, you never came and picked them up. On three
     different times, I also have an e-mail from the prison that
     [Appellant] was requesting those papers because they were his
     court documents. Those were his criminal charges that he
     has, he’s facing, okay. And I responded that he was to get
     ahold of you, I spoke to you to come get them. We have them,
     they are on the way down. I will be more than happy to turn
     them over. If you would like me to document them and go
     through the steps and read them, and I will do that.

     Q: I just wondered why that wasn’t done?

     A: I was not getting into the defense of his criminal charges that
     he’s facing because I don’t want to be accused of tampering with
     the case or interfering in how attorney-client privilege type
     thing. That’s his personal stuff. I want nothing to do with how
     he defends any criminal case. I don’t want any part in that. I
     don’t want to know.

     Q: I understand.

Id. at 97-100 (emphasis added).

     Following this exchange, Appellant’s trial counsel asked to approach

the bench for a sidebar conference, and the following exchanged occurred:

     [Appellant’s Trial Counsel]: I am going to move for a mistrial.
     Maybe we don’t want to do it right here.

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     The Court: Right here.

     [Appellant’s Trial Counsel]: Now, he has given the inference
     there are prior criminal charges. Maybe you can, I didn’t ask
     about the personal papers, I don’t think it was necessary to talk
     about defenses and further charges. It is basically telling the
     jury he has had prior charges at the time he found these, there
     were not charges filed in that case.

     [Assistant District Attorney]: Our position would be the
     detective’s testimony made it clear the papers seemed to do
     with charges with respect to this case, no other cases. I don’t -
     -

     [Appellant’s Trial Counsel]: He did not say that.

     [Assistant District Attorney]: I don’t think that point, I don’t
     think there was a reference or an inference there were other
     cases pending, is my recollection of the testimony.

     [Appellant’s Trial Counsel]: First, he didn’t know what they were,
     and he gets on the stand and of everything that was in that bag,
     he said there were criminal charges in that bag, which is what he
     found. There are no charges [pending] at that time on this case,
     prior ones. The jury knows he has prior charges, prior defenses,
     prior cases.

     The Court: I am going to say to you, Detective Price went out of
     his way to try not to answer that question which, quite frankly, is
     uncharacteristic of him. He went above and beyond not to get
     into that area. You asked the question and you asked the same
     question once too often and so, he threw in the towel.

     [Appellant’s Trial Counsel]: I didn’t ask what the contents were.

     The Court: The motion is denied.

     [Appellant’s Trial Counsel]: I just asked about whether they
     were inventoried.

     The Court: The motion is denied.

     [Appellant’s Trial Counsel]: Okay.

Id. at 100-102.




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      We will not speculate as to what counsel hoped to achieve with this

line of questioning. Our focus is the three-pronged test set forth in Pierce,

and we conclude that Appellant has failed to establish the prejudice prong.

      As set forth above, in order to establish prejudice, the petitioner must

show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different. Reed, 42 A.3d at 319. Here, while Detective Price undoubtedly

referred to court and arrest papers containing Appellant’s name, Appellant,

himself, testified to these same facts. The PCRA court explained as follows:

             Here, [Appellant] has failed to establish that there is a
      reasonable probability that the verdict would have been different
      absent Price’s testimony. [Appellant] himself put the issue of
      other criminal charges and his criminal record before the jury
      through his own testimony. In his testimony [Appellant] stated
      “at this time, I had come from, I was locked up, and I
      was, they sent me to the halfway house in Johnstown.”
      N.T. 5/12/2012 p. 6, 32.        [Appellant] further admitted to
      participating in a drug conspiracy relative to marijuana. Id. at
      81. Even absent Price’s testimony the jury would have learned
      about other charges from [Appellant] himself.

PCRA Court Opinion, 4/8/14, at 6 (emphasis added).          Thus, we cannot

conclude that the outcome of Appellant’s trial would have been any different.

Appellant, in his own testimony, raised the issue of his incarceration and

criminal involvement in drug activity.

      Furthermore, we conclude that even if Detective Price had never

mentioned Appellant’s court papers, the outcome of Appellant’s trial would

have been the same.        The evidence admitted at trial overwhelmingly



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supported Appellant’s conviction.    Dale Blough, the father of Appellant’s

girlfriend, testified that Appellant was involved in packaging and selling

heroin. N.T., 5/1/12, at 46. Kayla Younkers, Appellant’s girlfriend, testified

that while Appellant lived in her house, he was packaging and selling heroin

with another individual named Joseph Quinn.      Id. at 108.    Ms. Younkers

testified that detectives came to her house, and she gave consent to search

her house. Id. at 110. During the search, the detectives found heroin. Id.

at 110, 151. Additionally, Appellant’s co-conspirator, Joseph Quinn, testified

that he transported heroin for Appellant.     Id. at 170.      Mr. Quinn also

testified that he and Appellant packaged the heroin together for sale. Id. at

171, 179.     Therefore, even if the challenged testimony had not been

presented, we cannot conclude that there is any probability the outcome of

the proceedings would have been different.

      For the reasons set forth above, Appellant is entitled to no relief.

Accordingly, we affirm the April 8, 2014 order denying Appellant’s PCRA

petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2015




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