J-S04010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DERRICK LEWIS THOMAS                       :
                                               :
                       Appellant               :   No. 1337 MDA 2018

               Appeal from the PCRA Order Entered July 24, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0002118-2015


BEFORE:      SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                                   FILED MAY 14, 2019

        Appellant, Derrick Lewis Thomas, appeals pro se from the order

dismissing his first petition for relief filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court summarized the factual and procedural history of this

case as follows:

              On January 16, 2015, [Appellant] was charged by way of
        criminal complaint with Possession With Intent to Deliver a
        Controlled Substance and Unlawful Possession of Drug
        Paraphernalia.[1] A jury trial was held on February 10-11, 2016.
        On February 18, 2016, [Appellant] was sentenced to an aggregate
        term of 90 to 180 months incarceration. Following the trial court’s
        denial of post-sentence motions, a Notice of Appeal was filed in
        the Pennsylvania Superior Court1. The Pennsylvania Superior
        Court affirmed the judgment of sentence. See Commonwealth v.
        Thomas, 581 MDA 2016, 2017 WL 1003027[,] (Pa. Super. March

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1   35 P.S. §§ 780-113(a)(30) and (a)(32), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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     24, 2017). The Pennsylvania Supreme Court denied [Appellant’s]
     Petition for Allowance of Appeal on August 16, 2017.

           1   Filed April 8, 2016.

            On January 8, 2018, [Appellant] filed a timely pro se Motion
     for [PCRA relief], for which this [c]ourt appointed PCRA counsel
     Amanda Batz. Ms. Batz filed a Petition to Vacate Previous
     Appointment and to Appoint Alternative Counsel2 on January 18,
     2018. On January 22, 2018, this [c]ourt granted the Petition to
     Vacate and appointed new PCRA counsel Jonathan W. Crisp,
     Esquire. PCRA Counsel filed, and this [c]ourt granted, three
     Motion(s) for Extension of Time to file [a] Supplemental PCRA
     Petition. On May 7, 2018, PCRA Counsel filed a No Merit
     Turner/Finley Memorandum, a Petition for Leave to Withdraw as
     Counsel, and a Letter (advising [Appellant] of his rights).

           2 The [c]ourt noted that Attorney Batz was previously
           involved as prior counsel at the suppression hearing
           and [Appellant] sent a letter to the court requesting
           that new PCRA counsel be appointed.

PCRA Court Opinion, 6/29/18, at 1-2.

     The PCRA court issued its notice of intent to dismiss Appellant’s PCRA

petition on June 29, 2018.       In that same order, the PCRA court granted

Attorney Crisp permission to withdraw. Order, 6/29/18, at 9. Appellant filed

a response on July 23, 2018. By order entered July 24, 2018, the PCRA court

dismissed Appellant’s PCRA petition.    Appellant filed an appeal, pro se, on

August 10, 2018.      Appellant filed a Pa.R.A.P. 1925(b) statement, and on

September 4, 2018, the PCRA court filed a Statement in Lieu of Memorandum

Opinion, stating that its reasons for dismissal were contained in its

Memorandum Order filed June 29, 2018.

     On appeal, Appellant presents the following issues:


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       I.     Whether the PCRA Judge was in error in not granting relief
              on the PCRA petition alleging counsel was ineffective.

       II.    Whether the PCRA Judge was in error in denying the
              Appellant’s PCRA petition without an evidentiary hearing on
              the issues raised in the PCRA petition regarding trial
              counsel, and PCRA counsel’s ineffectiveness.

Appellant’s Brief at 8 (reordered for ease of disposition).

       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). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record. Id. “With

respect to the PCRA court’s decision to deny a request for an evidentiary

hearing, or to hold a limited evidentiary hearing, such a decision is within the

discretion of the PCRA court and will not be overturned absent an abuse of

discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

       Although in his statement of questions involved Appellant presents two

issues, the argument section of his brief contains multiple sub-issues.2

Appellant’s failure to list these additional sub-claims in the statement of

questions involved constitutes a violation of the rules of appellate procedure.

Rule 2116 of the Pennsylvania Rules of Appellate Procedure provides, in



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2 It is difficult to determine how many sub-issues Appellant is raising. He
alternates between lettered headings and numbered “claims” throughout the
argument section of his brief. Appellant’s Brief at 13-19.

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relevant part: “The statement of the questions involved must state concisely

the issues to be resolved, expressed in the terms and circumstances of the

case but without unnecessary detail.         . . . No question will be considered

unless it is stated in the statement of questions involved or is fairly suggested

thereby.” Pa.R.A.P. 2116. “[I]f the defects are in the brief . . . of the appellant

and are substantial, the appeal or other matter may be quashed or dismissed.”

Pa.R.A.P. 2012. Appellant’s multiple sub-issues are not fairly suggested by

the issues presented in his statement of questions involved. While we could

find waiver of these issues on this basis, to the extent we are able to discern

Appellant’s arguments as presented in the argument section of his brief, we

shall address them.

      In   sub-issue   “A”   under   issue    “I,”   Appellant   asserts   that   “his

constitutional rights were violated when arresting police officers enter[ed] the

vehicle where he was a passenger, and that there was no probable cause to

enter such vehicle without a warrant, and any such evidence sustain[ed] from

the illegal search, should have been suppressed.” Appellant’s Brief at 14. This

claim was previously litigated.

      In order to be eligible for relief under the PCRA, the error asserted must

not have been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An

issue has been previously litigated if “the highest appellate court in which the

petitioner could have had review as a matter of right has ruled on the merits

of the issue.” 42 Pa.C.S. § 9544(a)(2). On direct appeal, a panel of this Court


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addressed Appellant’s suppression claim and concluded that there was

probable cause to stop and search the vehicle. Thomas, 581 MDA 2016, at

3-6. Thus, Appellant is entitled to no relief on this claim.

       In sub-issue “B,” Appellant asserts that his due process rights were

violated by counsel’s failure to have the arresting police officer, Gina Pupo,

present at the suppression hearing.            Appellant’s Brief at 15.3   Appellant

contends that because of this, “his rights to appeal was [sic] hindered and

obstructed.” Id.

       Our Supreme Court has explained the following in addressing an

ineffective assistance of counsel claim:

          To prevail in a claim of ineffective assistance of counsel, a
       petitioner must overcome the presumption that counsel is
       effective by establishing all of the following three elements, as set
       forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
       975–76 (1987): (1) the underlying legal 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). “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




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3Appellant also inexplicably asserts in the context of this claim that the verdict
was against the weight of the evidence. Appellant’s Brief at 15. Appellant
does not identify which verdict he claims to be against the weight of the
evidence or develop any further argument. Id.

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errors,   the   result   of   the   proceeding   would   have   been   different.’”

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

      A claim 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).          “The burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

      When reviewing a claim that counsel was ineffective for failing to call a

witness, we observe that:

      a failure to call a witness is not per se ineffective assistance of
      counsel as such decision generally involves a matter of trial
      strategy. To establish a claim that counsel was ineffective for
      failing to call a witness, a defendant must establish that the
      witness existed and was available, that counsel was informed of
      the witness’s existence, that the witness was ready and willing to
      testify and that the absence of the witness prejudiced the
      defendant to a point where the defendant was denied a fair trial.

Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. Super. 2007).

      The PCRA court provided the following analysis on this issue:

             [Appellant] fails to satisfy the prejudice prong as the record
      reflects that Officer Pupo testified against [Appellant] at trial and
      was not willing to appear on his behalf. See Transcript of
      Proceedings, Jury Trial, February 10-11, 2016, pages 122-127.
      [Appellant] has failed to show how Officer Pupo’s testimony at the
      suppression hearing would have been beneficial to him as Officer
      Pupo testified against [Appellant] at trial. As such, [Appellant]
      has not shown that the outcome of the trial would have been
      different if Officer Pupo testified or that Officer Pupo’s lack of
      testimony at the suppression hearing prejudiced him.
      Accordingly, this issue is without merit.

PCRA Court Opinion, 6/29/18, at 7 (emphasis in original).




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       We agree. Appellant has failed to establish that Officer Pupo was ready

and willing to testify in his favor. Moser, 921 A.2d at 531. Indeed, the fact

that she testified against him leads to the opposite conclusion. Furthermore,

Appellant has failed to establish that the absence of Officer Pupo at the

suppression hearing prejudiced him to the degree that he was denied a fair

trial. Moser, 921 A.2d at 531. Thus, Appellant has failed to establish counsel

was ineffective for failing to have Officer Pupo present and testify at the

suppression hearing.

       In Appellant’s next claim, which he labels “B(1),” he maintains that

direct appeal counsel and PCRA counsel4 were ineffective for failing to raise

the issue that attorney Brian McQuillan “violated professional ethical

standards, when he was appointed by the courts to represent [Appellant] at

trial, when in fact counsel did not disclose that he was also appointed by the

courts while, also being retained and paid by [Appellant].” Appellant’s Brief

at 15. Despite Appellant’s assertion, he has failed to present any evidence

supporting the underlying claim that Attorney McQuillan was appointed by the

court and that Appellant was also paying Attorney McQuillan to represent him.



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4 “[C]laims of PCRA counsel ineffectiveness cannot be raised for the first time
after a notice of appeal has been taken from the underlying PCRA matter.”
Commonwealth v. Ford, 44 A.3d 1190, 1200-1201 (Pa. Super. 2012).
“Issues of PCRA counsel effectiveness must be raised in a serial PCRA petition
or in response to a notice of dismissal before the PCRA court.” Id. Here,
Appellant raised claims of PCRA counsel’s ineffectiveness in his response to
the PCRA court’s notice of intent to dismiss, filed July 23, 2018.

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Because there is no basis for the conclusion that the underlying legal claim

has any arguable merit, direct appeal and PCRA counsel cannot be deemed

ineffective for failing to raise it. Paddy, 15 A.3d at 442. Appellant is entitled

to no relief on this claim.

      Appellant next asserts in claim “C” that “the unavailability at the time of

trial of exculpatory evidence that has subsequently become available and [sic]

would have changed the outcome of trial if it had been introduced.”

Appellant’s Brief at 15. The evidence Appellant references is “evidence based

off the district attorney[’s] remarks to the jury that they had in their

possession videos and audios of the appellant[’s] actions the day of this

incident.” Id. at 16. He contends this evidence “clearly suggest[s] that there

was exculpatory evidence withheld at trial, and that the district attorney never

introduced this evidence as part of the record.” Id.

      To be eligible for relief on a claim of after-discovered evidence, a PCRA

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

unavailability at the time of trial of exculpatory evidence that has subsequently

become available and would have changed the outcome of the trial if it had

been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi). To evaluate such a claim:

      [an] appellant must demonstrate that the evidence: (1) could not
      have been obtained prior to the conclusion of the trial by the
      exercise of reasonable diligence; (2) is not merely corroborative
      or cumulative; (3) will not be used solely to impeach the credibility
      of a witness; and (4) would likely result in a different verdict if a
      new trial were granted.

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008)).

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      We first note that Appellant has failed to identify the alleged after-

discovered evidence with any specificity. Appellant does not explain why this

evidence was unavailable at the time of trial, when it became available, or

why it could not have been obtained prior to the conclusion of trial by the

exercise of due diligence. Pagan, 950 A.2d at 292. Moreover, Appellant has

failed to establish that introduction of this evidence would likely result in a

different verdict if a new trial were granted. Id. Accordingly, Appellant is

entitled to no relief on this claim.

      In sub-issue “D,” Appellant addresses issues identified by the PCRA

court as claims four through ten as set forth by PCRA counsel, that the PCRA

court had found to be previously litigated. Appellant’s Brief at 16. Specifically,

Appellant alleges as follows:

      Claim 4: an absence of probable cause for the arresting officer’s
      search and seizure of [Appellant] and vehicle in which he was a
      passenger. Claim 5: the credibility of testimony offered by officer
      Brooks and officer Pupo at [Appellant’s] suppression hearing and
      at trial. Claim 6: the denial of the right to due process because
      Officer Gina Pupo was not called to testify at the suppression
      hearing. Claim 7: the weight of the evidence relied upon for the
      suppression court’s decision absent the testimony from Officer
      Gina Pupo. Claim 8: the weight of the evidence related to
      [Appellant’s] conviction. Claim 9: the trial court’s denial of
      [Appellant’s] post sentence motions following his conviction.
      Claim 10: the conviction was obtained in violation of the right to
      due process of the law and equal protection of the laws,
      specifically unreasonable search and seizures.

Appellant’s Brief at 16 (emphases in original). “Appellant[] states that these

claims were not previously litigated or waived.” Id. at 16. Appellant further

maintains that he “has shown all necessary elements to warrant relief where

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trial, direct appeal, and PCRA counsel were ineffective, and that appellant

suffered actual prejudice as a result of counsel’s failure to have arresting police

officer Gina Pupo present at suppression hearing.” Id. at 17.

      As stated by the PCRA court, all of these issues were previously litigated

on direct appeal. Thomas, 581 MDA 2016, at 1-11. Moreover, the previous

panel of this Court found no merit to any of these claims. As a result, to the

degree Appellant is asserting trial, direct appeal, and PCRA counsel’s

ineffectiveness, we conclude that counsel cannot be deemed ineffective for

failing to raise a meritless claim. See Commonwealth v. Spotz, 896 A.2d

1191, 1210 (Pa. 2006) (“Counsel will not be deemed ineffective for failing to

raise a meritless claim.”). Additionally, for reasons stated previously, counsel

was not ineffective for failing to have Officer Pupo present at the suppression

hearing.

      In Claim “E,” Appellant again asserts counsel’s ineffectiveness for failure

to have Officer Pupo at the suppression hearing. Appellant’s Brief at 17. For

reasons stated previously, Appellant is entitled to no relief on this claim.

      In “Claim 11,” Appellant argues ineffective assistance of preliminary

hearing counsel Bryan Walk, relating to his representation of Appellant and

Appellant’s co-defendant at the preliminary hearing. Appellant’s Brief at 17.

Appellant asserts that counsel’s representation of both defendants at the

preliminary hearing was a conflict of interest and “that he was prejudice[d]

when he was charged with contraband that did not belong to him at [the]


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preliminary [hearing], and that these charges were held over onto the

appellant at [sic] trial, causing actual harm; thus violating his due process

rights.” Id.

            It has been well established that dual representation alone
      does not create a conflict of interest. While the mere existence of
      a conflict of interest vitiates the proceedings, a defendant still has
      the burden of demonstrating that a conflict of interest actually did
      exist. In order to carry this burden, the defendant need not show
      that actual harm resulted, but he must at least show the possibility
      of harm.

Commonwealth v. Brown, 972 A.2d 529, 530 (Pa. Super. 2009) (internal

citations omitted). “[A]ppellant will satisfy the requirement of demonstrating

possible harm, if he can show, inter alia, ‘that he had a defense inconsistent

with that advanced by the other client, or that counsel neglected his case in

order to give the other client a more spirited defense.’” Commonwealth v.

Breaker, 318 A.2d 354, 356 (Pa. 1974).

      We note that “[t]he preliminary hearing is not a trial.” Commonwealth

v. Hilliard, 172 A.3d 5, 10 (Pa. Super. 2017) (quoting Commonwealth v.

Weigle, 997 A.2d 306, 311 (Pa. 2010)).            “The principal function of a

preliminary hearing is to protect an individual’s right against an unlawful arrest

and detention.” Id. “At the pre-trial stage of a criminal prosecution, it is not

necessary for the Commonwealth to prove the defendant’s guilt beyond a

reasonable doubt[.]” Id. (quoting Commonwealth v. Huggins, 836 A.2d

862, 866 (Pa. 2003)).




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      Here, attorney Bryan Walk represented Appellant and his co-defendant

only at the preliminary hearing. Appellant was represented individually by

attorney Amanda Batz at his suppression hearing and by attorney Ronald

Gross at trial. As stated, the function of the preliminary hearing was solely to

determine if a prima facie case existed against Appellant. Appellant has failed

to establish that the dual representation during the preliminary hearing

resulted in a conflict of interest. Brown, 972 A.2d at 530. Appellant has not

demonstrated “actual harm,” nor has he alleged “possible harm” by showing

that he had a defense inconsistent with that advanced by the other client, or

that counsel neglected his case in order to give the other client a more spirited

defense. Breaker, 318 A.2d at 356. “Indeed, once a defendant has gone to

trial and has been found guilty of the crime or crimes charged, any defect in

the preliminary hearing is rendered immaterial.”           Commonwealth v.

Sanchez, 82 A.3d 943, 984 (Pa. 2013). Thus, Appellant has failed to establish

Attorney Walk’s ineffectiveness.

      In “Claim 12,” Appellant argues the ineffective assistance of suppression

counsel Amanda Batz for failure to call Officer Pupo to testify at the

suppression hearing. For reasons previously stated, Appellant is entitled to

no relief on this claim.

      In what he deems “Claim 13,” Appellant asserts that attorney Brian

McQuillan was ineffective for permitting an associate at his firm to handle

Appellant’s suppression hearing. Appellant’s Brief at 18. Appellant contends


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that Attorney Batz “denied the [A]ppellant due process when she failed to

protect [Appellant’s] best interest at hand, by not securing every defense that

was available to her, that would be beneficial for [Appellant] at trial[.]” Id.

Appellant continues that “counsel was indeed ineffective, and [the] PCRA court

incorrectly denied [the] PCRA petition without first given [sic] an evidentiary

hearing.” Id. Appellant further maintains that if Attorney McQuillan would

have been present at the suppression hearing, Attorney McQuillan would have

given “the representation that he was retained to do” because Attorney

McQuillan assured Appellant that he would have Officer Pupo present at the

suppression hearing. Id.

      Appellant fails to identify with specificity how Attorney Batz was

ineffective. To the extent he is arguing that Attorney Batz was ineffective for

failing to have Officer Pupo attend and testify at the suppression hearing, we

have previously determined that claim is without merit. Thus, Attorney Batz

cannot be deemed ineffective on that basis. Moreover, because there is no

merit to the underlying claim, and Appellant has not established that he was

prejudiced by Attorney Batz’s handling of his suppression hearing, Attorney

McQuillan cannot be deemed ineffective. Appellant is entitled to no relief on

this issue.

      In “Claim 14,” Appellant asserts that trial counsel Ronald Gross was

ineffective for failing to secure suppression of the crack cocaine “discovered

in [Appellant’s] possession at the time of his arrest.” Appellant’s Brief at 19.


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Appellant again argues that there was no probable cause supporting the

search of the vehicle. Id.

      As explained, a prior panel of this Court concluded that the suppression

court did not erroneously deny appellant’s motion to suppress.        Thus, the

underlying legal claim lacks merit. Accordingly, Attorney Ronald Gross cannot

be deemed to be ineffective. Paddy, 15 A.3d at 442. Appellant is entitled to

no relief on this claim.

      In the second issue as presented in the statement of questions involved,

Appellant asserts that the PCRA court erred in denying his PCRA petition

without holding an evidentiary hearing on the allegations of counsel’s

ineffectiveness. Appellant’s Brief at 8, 12-13. It is well settled that “[t]here

is no absolute right to an evidentiary hearing on a PCRA petition, and if the

PCRA court can determine from the record that no genuine issues of material

fact exist, then a hearing is not necessary.” Commonwealth v. Jones, 942

A.2d 903, 906 (Pa. Super. 2008).

      To obtain reversal of a PCRA court’s decision to dismiss a petition
      without a hearing, an appellant must show that he raised a
      genuine issue of fact which, if resolved in his favor, would have
      entitled him to relief, or that the court otherwise abused its
      discretion in denying a hearing.

Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).

      As explained in addressing Appellant’s first issue and sub-issues, the

PCRA court’s determination that Appellant is not entitled to relief on any of his

claims is supported by the record. Because the PCRA court concluded that


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there was no merit to Appellant’s allegations of trial and PCRA counsel’s

ineffectiveness, it did not abuse its discretion in dismissing Appellant’s petition

without holding an evidentiary hearing. Hanible, 30 A.3d at 452. Appellant’s

contrary claim lacks merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/14/2019




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