J-S45045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BILLY GIBSON                               :
                                               :
                       Appellant               :   No. 1852 EDA 2018

               Appeal from the PCRA Order Entered May 25, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0008036-2013


BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                          FILED AUGUST 16, 2019

        Billy Gibson (Gibson) appeals from the order entered in the Court of

Common Pleas of Philadelphia County (trial court) dismissing his petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,

without a hearing. We affirm.

        We take the following facts and procedural history from the July 1, 2016

memorandum decision issued in Gibson’s case on direct appeal and our

independent review of the record. This case stems from Gibson’s arrest after

police acted on a tip from a known, confidential informant (CI), conducted a

Terry1 pat-down of his person at a bar and discovered drugs (crack cocaine

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*   Retired Senior Judge assigned to the Superior Court.

1   Terry v. Ohio, 392 U.S. 1 (1968).
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and Percocet) and a gun. Police also recovered additional narcotics during the

search of Gibson’s vehicle. On March 11, 2015, the trial court denied Gibson’s

motion to suppress and motion to reveal the identity of the CI.

        The case proceeded to a bench trial and the court found Gibson guilty

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

controlled substance, person not to possess a firearm, carrying a firearm

without a license, and carrying a firearm in public in Philadelphia. 2 On July

17, 2015, the court sentenced Gibson to an aggregate term of not less than

fifty-six nor more than 120 months’ incarceration followed by five years of

probation. This Court affirmed his judgment of sentence and our Supreme

Court subsequently denied his petition for allowance of appeal on October 24,

2016.

        Gibson, acting pro se, filed the instant PCRA petition on February 2,

2017, and appointed counsel filed an amended petition. After issuing notice

of its intent to do so, the PCRA court entered its order dismissing the petition.

See Pa.R.Crim.P. 907(1). This timely appeal followed.

        First, Gibson challenges the PCRA court’s denial of his PCRA petition

without holding an evidentiary hearing when he raised meritorious issues



____________________________________________


2 35 P.S. §§ 780-113(a)(30) and (a)(16); 18 Pa.C.S. §§ 6105(a)(1),
6106(a)(1), and 6108.




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concerning the ineffective assistance of trial and appellate counsel and

prosecutorial misconduct. (See Gibson’s Brief, at 3, 8-12).3

       At the outset, we note that “[a] petitioner is not entitled to a PCRA

hearing as a matter of right; the PCRA court can decline to hold a hearing if

there is no genuine issue concerning any material fact, the petitioner is not

entitled to PCRA relief, and no purpose would be served by any further

proceedings.” Postie, supra at 1022 (citation omitted).

       Next, Gibson argues that his trial counsel was ineffective for failing to

obtain a police All Incidents Report (Report) showing the exact times that calls

were made at the address of the subject bar.4 (See Gibson’s Brief, at 9-10).

Gibson asserts that because the police testified that the radio call containing

the flash information was broadcast at approximately 12:45 a.m., counsel

should have obtained the Report to demonstrate the officers’ lack of

credibility. (See id.).

       “The law presumes counsel has rendered effective assistance.” Postie,

supra at 1022 (citation omitted).              “In general, to prevail on a claim of


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3 “Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. This Court grants great
deference to the findings of the PCRA court if the record contains any support
for those findings.” Commonwealth v. Postie, 200 A.3d 1015, 1022 (Pa.
Super. 2018) (en banc) (citations omitted).

4The Report shows calls made at 12:56 a.m. and 1:35 a.m. for “investigation
of persons” and “weapon violations,” respectively. (See Exhibit A to Amended
PCRA petition, 9/26/17; Trial Court Opinion, 7/30/18, at 5).

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ineffective assistance of counsel, a petitioner must show, by a preponderance

of the evidence, ineffective assistance of counsel which, 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.”          Id.

(citation omitted).   “The petitioner must demonstrate:       (1) the underlying

claim has arguable merit; (2) counsel lacked a 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.” Id. (citation omitted). “The petitioner bears the burden

of proving all three prongs of the test.” Id. (citation omitted). “A claim has

arguable merit where the factual averments, if accurate, could establish cause

for relief.” Id. at 1023 (citation omitted). “[T]he ultimate question of whether

facts rise to the level of arguable merit is a legal determination.” Id. (citation

omitted).

      Instantly, Detective Falcone testified that “just after midnight” he

received a phone call from the CI and he immediately “relayed the flash

information what the guy was wearing that was armed with a handgun.” (N.T.

Trial, 3/11/15, at 7-8). Police Officer Kozlowski similarly testified that “in the

early morning hours . . . there was a radio call that came out for that location.”

(Id. at 14). After review, we agree with the PCRA court’s conclusion that

“[Gibson] failed to explain how the exact times of these calls, rather than an

estimate, renders the testimony of the officers incredible.” (Trial Ct. Op., at


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5).   Because Gibson has failed to demonstrate that his underlying claim

regarding the impeachment value of the Report would have any probability of

making the outcome of the proceedings different, his ineffectiveness claim

merits no relief.

        Gibson also maintains that trial and appellate counsel were ineffective

for failing to challenge the trial court’s deficient jury waiver colloquy, which

the court conducted only after finding him guilty. (See Gibson’s Brief, at 8,

10-11).

        The relevant rule of criminal procedure provides:

        In all cases, the defendant and the attorney for the
        Commonwealth may waive a jury trial with approval by a judge of
        the court in which the case is pending, and elect to have the judge
        try the case without a jury. The judge shall ascertain from the
        defendant whether this is a knowing and intelligent waiver, and
        such colloquy shall appear on the record. The waiver shall be in
        writing, made a part of the record, and signed by the defendant,
        the attorney for the Commonwealth, the judge, and the
        defendant’s attorney as a witness.

Pa.R.Crim.P. 620.

        “The constitutional right to trial by jury, as with other constitutional

rights, will not lightly be deemed to have been waived. In fact, courts indulge

every     reasonable   presumption    against   waiver   of   such   fundamental

constitutional rights.” Commonwealth v. Washington, 2019 WL 2146074,

at *2 (Pa. Super. filed May 16, 2019) (citation omitted).        Nevertheless, a

criminal defendant may waive his right to a jury trial and proceed to trial

before a judge, provided his waiver is knowing and voluntary.” Id. (citation


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omitted). The defendant “must be aware of the essential ingredients inherent

to a jury trial,” which are “1) that the jury be chosen from members of the

community (i.e., a jury of one’s peers), 2) that the accused be allowed to

participate in the selection of the jury panel, and 3) that the verdict be

unanimous.” Id. (citation omitted). A reviewing court considers the totality

of the circumstances surrounding a defendant’s waiver to determine whether

it was voluntary. See id.

      Here, the trial court found Gibson guilty after hearing extensive

testimony on the motion to suppress, which was incorporated by reference

into a waiver trial.   (See N.T. Trial, 3/11/15, at 59-61).     The court then

conducted a thorough, oral colloquy with Gibson, confirming his awareness of

his right to a jury trial by his peers and that the verdict would need to be

unanimous. (See id. at 61-63). The court expressly advised Gibson: “If you

still want a jury time, you can have one[.] . . . [I]f you want to exercise your

constitutional rights to a jury trial which is guaranteed by the United States

and Pennsylvania Constitution[,] not only would [defense] counsel help in

defending you against the Commonwealth’s presentation of its evidence in its

case in chief, he would help you in selecting those jurors.” (Id. at 61). After

the court was “thoroughly convinced” of the knowing and voluntary nature of

Gibson’s waiver, Gibson executed a written waiver colloquy, further

demonstrating his understanding of the rights he was waiving. (Id. at 64;

see also Written Jury Trial Waiver Colloquy, 3/11/15, at 1-4).


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      Based upon the totality of these circumstances, Gibson has failed to

meet his burden of establishing that his underlying claim of a deficient jury

waiver colloquy has arguable merit.         Accordingly, his claim of trial and

appellate counsel ineffectiveness on this basis fails.

      Last, Gibson contends that at trial, the prosecutor engaged in

misconduct by knowingly presenting false testimony from police officers

regarding the time flash information was broadcast over police radio. (See

Gibson’s Brief, at 11-12). However, to be eligible for relief under the PCRA, a

petitioner must plead and prove by a preponderance of the evidence: “[t]hat

the allegation of error has not been previously litigated or waived.” 42 Pa.C.S.

§ 9543(a)(3). “[A]n issue is waived if the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal or in a

prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b).

      Accordingly, because Gibson could have raised his claim of prosecutorial

misconduct in his direct appeal to this Court but failed to do so, this issue is

waived. See Commonwealth v. Ford, 809 A.2d 325, 329 (Pa. 2002), cert.

denied, 540 U.S. 1150 (2004) (finding claims of prosecutorial misconduct

waived under the PCRA where appellant could have raised them on direct

appeal, but failed to do so.). Thus, we conclude that the PCRA court did not

err in dismissing Gibson’s PCRA petition without a hearing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/19




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