J-S73039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 PETIE P. DAVIS,                            :
                                            :
                     Appellant              :         No. 724 MDA 2019

              Appeal from the PCRA Order Entered April 16, 2019
               in the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0002199-2016

BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                        FILED FEBRUARY 26, 2020

      Petie P. Davis (“Davis”) appeals, pro se, from the Order dismissing his

first Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      This Court previously set forth the relevant facts as follows:

            On January 7, 2016, Officer Nicolas Licata [(“Officer
      Licata”)] contacted a Confidential Informant (“CI”) to utilize in a
      controlled[-]buy operation. Officer Licata instructed the CI to call
      a drug dealer and order a “brick” of heroin. Once the telephone
      call was placed, Officer Licata marked $200 in Dauphin County
      drug funds and gave it to the CI. Officer Licata searched the CI
      and his vehicle for contraband, and, finding nothing, proceeded to
      follow the CI in an unmarked police vehicle to a location where a
      black male stood outside.

             Officer Licata, and a second officer, Officer Dennis Simmons
      [(“Officer Simmons”)], observed the black male enter the CI’s
      vehicle and emerge from the vehicle a short time later. The CI
      proceeded to a predetermined location where Officer Licata
      performed another search. Officer Licata did not find the pre-
      marked buy money on the CI[,] but did find a brick of heroin.
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     Simultaneously, the police arrested the male [who had met with
     the CI], later identified as [Davis].

           During a search of [Davis], police found the pre-marked
     drug fund money[,] as well as a cell phone matching the number
     dialed by the CI in the presence of Officer Licata. Upon recovering
     the pre-marked bills, Officer Licata returned them to the drug fund
     to use in further investigations.

            [Davis] was charged with delivery of a controlled substance
     and criminal use of a communication facility. During pre-trial
     proceedings, [Davis] moved to dismiss his case due to the police’s
     failure to preserve the marked money used in the transaction and
     to reveal the identity of the CI. At the hearing on the [M]otions,
     [Davis] failed to present any evidence.            However, the
     Commonwealth presented the testimony of Officer Licata[,] who
     described the danger involved in revealing the CI’s identity. The
     trial court denied both [M]otions.

            [Davis’s] case proceeded to a jury trial. Prior to the
     commencement of trial, [Davis] argued [that] the trial court
     should exclude any testimony related to the recovery of the pre-
     marked buy money as a violation of the best evidence rule. The
     trial court denied the [M]otion and allowed the Commonwealth’s
     witnesses to testify about their use and recovery of the pre-
     marked buy money. [Davis] did not present any evidence but
     cross-examined all of the Commonwealth’s witnesses. During
     [Officer Licata’s testimony, Davis] attempted to question [Officer
     Licata] about the credibility of a supervisor. The Commonwealth
     objected to this line of questioning, and this objection was
     seemingly sustained by the trial court. Following deliberations,
     the jury convicted [Davis] of both charges.

Commonwealth v. Davis, 181 A.3d 1235 (Pa. Super. 2017) (unpublished

memorandum at 1). This Court affirmed the judgment of sentence. Id. Davis

did not file a petition for allowance of appeal with the Pennsylvania Supreme

Court.

     On July 12, 2018, Davis, pro se, filed the instant timely PCRA Petition.

The PCRA court appointed Davis counsel. Upon the filing of a pro se “Motion



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to Withdraw Counsel” by Davis, and following a Grazier1 hearing where the

PCRA court determined that Davis’s waiver of counsel was knowing, intelligent

and voluntary, the PCRA court permitted Davis to proceed pro se.              Davis

subsequently filed a “Motion for Discovery,” requesting the production of

“Dauphin County Police Department policies relating to the use of funds by

the ‘Vice’ unit….” The PCRA court denied the Motion.

       After filing a Pa.R.Crim.P. 907 Notice of Intent to Dismiss, the PCRA

court dismissed Davis’s Petition without a hearing. Davis filed a timely Notice

of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

       On appeal, Davis presents the following questions for our review:

       1. Whether trial counsel was ineffective for:

              (a) failing to object to the expert opinion of a detective;

              (b) failing to investigate the law regarding a “missing
              witness” adverse inference jury instruction;

              (c) failing to present evidence in support of the [M]otion to
              [D]ismiss for failure to preserve material evidence; and

              (d) failing to present evidence in support of the [M]otion to
              [C]ompel production of confidential informants?

       2. Whether appellate counsel was ineffective for failing to ensure
       that the certified record was complete for review of the claims
       raised on direct appeal?

       3. Whether the trial court erred in limiting the cross-examination
       of Detective Licata, in violation of the right of cross-examination
       and the right to present a complete defense?
____________________________________________


1   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).

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      4. Whether the PCRA [c]ourt abused its discretion in denying
      [Davis’s] Motion for Discovery?

      5. Whether the PCRA [c]ourt abused its discretion in denying
      [Davis’s] Motion for an Evidentiary Hearing?

Brief for Appellant at 3.

      “The standard of review of an order dismissing a PCRA petition is

whether that determination is supported by the evidence of record and is free

of legal error.”    Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super.

2017).   “The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record.”            Id. (citation omitted).

Further, “a PCRA court has discretion to dismiss a PCRA petition without a

hearing if the court is satisfied that there are no genuine issues concerning

any material fact; that the defendant is not entitled to post-conviction

collateral relief; and that no legitimate purpose would be served by further

proceedings.” Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super.

2017) (citations omitted). “[A]s to ineffectiveness claims in particular, if the

record reflects that the underlying issue is of no arguable merit or no prejudice

resulted,   no     evidentiary   hearing    is   required.”    Commonwealth        v.

Baumhammers, 92 A.3d 708, 726-27 (Pa. 2014).

      To prevail on a claim of ineffective assistance of counsel under the PCRA,

a petitioner must plead and prove, by a preponderance of the evidence, that

counsel’s ineffectiveness “so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place.”           42

Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that “the


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underlying claim has arguable merit; second, that counsel had no reasonable

basis for his action or inaction; and third, that [the a]ppellant was prejudiced.”

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa. Super. 2014). “A

PCRA    petitioner   must    address   each    of   these   prongs    on   appeal.”

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).

       In his first claim, Davis alleges that his trial counsel was ineffective in

failing to object to certain trial testimony given by Officer Simmons. See Brief

for Appellant at 9-16.      According to Davis, Officer Simmons gave expert

witness testimony, even though the Commonwealth solely offered him as a

fact witness. Id. at 9-10. Specifically, Davis directs our attention to Officer

Simmons’s testimony that, based on his experience as a police officer, he

believed that a drug deal had occurred in the CI’s vehicle. Id. Davis points

out that his trial counsel failed to object to this testimony, and request a

cautionary instruction to the jury. Id. Davis argues that the expert testimony

was highly prejudicial because it “related directly to the ultimate issue at trial,”

i.e., whether Davis had sold heroin to the CI while inside of the CI’s vehicle.

Id. at 10.

       Pennsylvania Rule of Evidence 701 states that

       [i]f a witness is not testifying as an expert, testimony in the form
       of an opinion is limited to one that is: (a) rationally based on the
       witness’s perception; (b) helpful to clearly understanding the
       witness’s testimony or to determining a fact in issue; and (c) not
       based on scientific, technical, or other specialized knowledge
       within the scope of Rule 702.

Pa.R.E. 701.


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      Here, Officer Licata testified that he had provided the CI with $200 in

marked U.S. currency and told him to call a drug dealer and order a brick of

heroin. See N.T., 11/3-4/16, at 22-23, 25. Officer Licata stated that the CI

called a purported drug dealer, and made an agreement to meet on Cameron

Street to buy a brick of heroin.   Id. at 23-24, 26. The CI then drove his

vehicle to Cameron Street, followed by Officer Licata in an unmarked vehicle.

Id. at 26-28.

      Officer Simmons testified that he was on Cameron Street when the CI

arrived. Id. at 96-97. Officer Simmons witnessed Davis enter the CI’s vehicle

and remain there for a few seconds, then exit the vehicle and enter the

passenger seat of a red Hyundai. Id. Officer Simmons stated that he and

other officers then surrounded the Hyundai, removed Davis from the

passenger seat, and arrested him. Id. at 97-98. After removing Davis from

the vehicle, Officer Simmons discovered U.S. currency on the passenger seat

where Davis had been sitting. Id. at 99-100. Officer Simmons also discovered

two cell phones on Davis’s person. Id. at 100. Officer Licata testified that he

identified the U.S. currency as the same marked currency that he had given

the CI for the controlled buy. Id. at 34.

      While Officer Simmons was arresting Davis, Officer Licata met with the

CI, searched him, and found a brick of heroin on his person. Id. at 30. Officer

Licata subsequently dialed the phone number for the dealer that the CI had

given to him, and one of the cell phones that Davis had on his person rang

and displayed the officer’s phone number.   Id. at 34. On cross-examination,

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Officer Simmons testified, “[b]ased on the actions of Detective Licata before

this investigation and my observations, I’ve observed multiple drug deals and

this is usually how they actually happen.” Id. at 102.

         In light of the foregoing testimony, the record reflects that there was

overwhelming evidence for the jury to conclude that Davis was guilty of

delivery of a controlled substance and criminal use of a communication facility.

Therefore, even if Officer Simmons had improperly provided expert witness

testimony, Davis was not prejudiced by his trial counsel’s failure to object to

the testimony. See Charleston, supra. Accordingly, Davis’s trial counsel

did not provide ineffective assistance on these grounds, and Davis’s first claim

fails.

         In his second claim, Davis alleges that his trial counsel was ineffective

in failing to “investigate the law” regarding the “missing witness” instruction.

See Brief for Appellant at 16-19. Davis alleges that his trial counsel requested

that the trial court give the “missing witness” jury instruction, but was denied,

based on a failure to provide legal support for issuance of the instruction. Id.

at 16-17. Davis points to his trial counsel’s admission that she was unaware

of any legal authority stating that the charge should be given in Davis’s

particular circumstances, and that she “didn’t do a significant amount of

research on that particular issue.” Id. at 17; see also N.T., 11/3-4/16, at

74. Davis argues that his trial counsel lacked a reasonable basis for failing to

conduct the proper research, and that he was prejudiced by trial counsel’s

failure to effectively advocate on his behalf. See Brief for Appellant at 17-19.

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      “A negative inference may be drawn from the failure of a party to call a

particular witness who was in that party’s control. However, an inference may

not be drawn where there exists a satisfactory explanation as to why the party

failed to call such witness.” Commonwealth v. Jones, 637 A.2d 1001, 1005

(Pa. Super. 1994). The Commonwealth’s genuine concern for a CI’s safety

can form a satisfactory explanation for its failure to call a CI as a witness. Id.

      Here, the Commonwealth did not call the CI as a witness, and the trial

court denied Davis’s pre-trial Motion to disclose the CI’s identity. See Order,

9/19/16. However, the trial court found that the Commonwealth’s concern

that disclosing the CI’s identity could compromise the CI’s safety was a

satisfactory explanation to excuse his testimony at trial.      See Trial Court

Opinion, 3/7/17, at 7-8; N.T., 9/9/16, at 4-6.      Therefore, grounds for the

missing witness jury instruction were not established. See Jones, supra.

Accordingly, Davis’s underlying claim lacks merit, and his second claim fails.

      We will consider Davis’s third, fourth and fifth claims together, as they

are related. In his third and fourth claims, Davis alleges that his trial counsel

was ineffective in failing to “present evidence in support” of his “Motion to

Dismiss for Intentional Failure to Preserve Material Evidence,” and “Motion to

Compel Production of Confidential Informants.” See Brief for Appellant at 19-

23.   Davis argues that production of the marked buy money and the CI’s

identity would have benefitted his case. Id.

      In his fifth claim, Davis claims that his direct appeal counsel was

ineffective in failing to ensure that the certified record on appeal was complete

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by having the record supplemented pursuant to Pa.R.A.P. 1926. See Brief for

Appellant at 23-25. Davis states that, at trial, the Commonwealth objected

to his question regarding the identity of Officer Licata’s supervisor, which was

purportedly sustained at sidebar, off the record. Id. at 24. Davis points out

that this Court, on direct appeal, waived his claim regarding the trial court’s

ruling on this objection, because the record did not include the trial court’s

ruling. Id. at 25.

      Here, Davis fails to develop the prejudice prong of the ineffectiveness

test on all three claims.    Davis makes bald assertions that he suffered

prejudice as a result of counsel’s actions, without citing to any relevant

authority or presenting any legal argument in support of his claims. “[W]here

an appellate brief fails to provide any discussion of a claim with citation to

relevant authority[,] or fails to develop the issue in any other meaningful

fashion capable of review, that claim is waived.”         Commonwealth v.

Johnson, 985 A.2d 915, 924 (Pa. 2009). It is not the role of this Court to

“formulate [an a]ppellant’s arguments for him.”        Id. at 925; see also

Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (noting that

boilerplate allegations and bald assertions cannot satisfy a petitioner’s burden

to prove ineffective assistance of counsel). Because Davis failed to properly




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develop these claims for our review, they are waived.2

       In his sixth claim, Davis alleges that the trial court violated his

constitutional right to confrontation by limiting his cross-examination of

Officer Licata. See Brief for Appellant at 26-28. Davis claims that Officer

Licata’s supervisor had been charged with “stealing from the funds of the Vice

Unit,” which information was relevant to Davis’s defense. Id. at 26. Davis

argues that the supervisor’s alleged misappropriation of funds was relevant to

prove that “a drug transaction never occurred, that the CI was not properly

searched [and] was not reliable, and that the investigation was not credible

or reliable.” Id.

             As this Court has explained, the Sixth Amendment of the
       United States Constitution provides that, [i]n all criminal
       prosecutions, the accused shall enjoy the right to be confronted
       with the witnesses against him.         This protection has been
       incorporated into the Fourteenth Amendment and thus is
       applicable in state court prosecutions.

             In the context of cross-examining a testifying witness, this
       Court has explained that a defendant’s right to confrontation
       means more than being allowed to confront the witness physically.
       Indeed, the main and essential purpose of confrontation is to
       secure for the opponent the opportunity of cross-examination. Of
       particular relevance here, the Supreme Court of the United States
       has recognized that the exposure of a witness’[s] motivation in
____________________________________________


2 Even if Davis had preserved these claims, and even if Davis had satisfied the
first two prongs of the ineffectiveness test, we would have found that Davis
suffered no prejudice as a result of these alleged failures. As we discussed in
response to Davis’s first claim, there was overwhelming evidence in support
of his convictions, and no evidence to support Davis’s allegations that
production of the CI’s identity, the marked buy money, or the identity of
Officer Simmons’s supervisor would have changed the outcome of Davis’s
trial. See Charleston, supra.

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      testifying is a proper and important function of the constitutionally
      protected right of cross-examination. It does not follow, of
      course, that the Confrontation Clause of the Sixth Amendment
      prevents a trial judge from imposing any limits on defense
      counsel’s inquiry into the potential bias of a prosecution witness.
      On the contrary, trial judges retain wide latitude insofar as
      the Confrontation Clause is concerned to impose
      reasonable limits on such cross-examination based on
      concerns about, among other things, harassment, and
      prejudice, confusion of the issues, the witness’ safety, or
      interrogation that is repetitive or only marginally relevant.
      The Confrontation Clause guarantees an opportunity for effective
      cross-examination, not cross-examination that is effective in
      whatever way, and to whatever extent, the defense might wish.

Commonwealth v. Akrie, 159 A.3d 982, 988 (Pa. Super. 2017) (citations,

quotation marks, ellipses and brackets omitted; emphasis added).              “The

pertinent case law permits a police witness to be cross-examined about

misconduct as long as the wrongdoing is in some way related to the

defendant’s underlying criminal charges and establishes a motive to

fabricate.” Commonwealth v. Bozyk, 987 A.2d 753, 757 (Pa. Super. 2009).

“However, if the prior police behavior is unrelated to the present matter and

irrelevant, the trial court is permitted to restrict questioning on the prior

incident.” Id.

      Here, Davis has not alleged that Officer Licata’s supervisor had any role

in Davis’s apprehension or prosecution.          Additionally, Officer Licata’s

supervisor did not provide any testimony at Davis’s trial.       The trial court

appropriately exercised its discretion in limiting Davis’s questioning of Officer

Licata regarding the alleged actions of Officer Licata’s supervisor in an




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unrelated matter. See Akrie, supra; Bozyk, supra. Accordingly, Davis was

not denied his right to confrontation, and this claim fails.

      In his seventh claim, Davis alleges that the PCRA court abused its

discretion in denying his Motion for discovery. See Brief for Appellant at 29.

Davis states that he intended to seek production of the Harrisburg Bureau of

Police’s policies regarding (1) the use of marked money, and (2) the use of

confidential informants. Id. Davis claims that production of these policies

would have supported his ineffectiveness claims for his counsel’s alleged

failure to present evidence in support of his Motion to Dismiss and Motion to

Compel. Id.

      Pennsylvania Rule of Criminal Procedure 902(E)(1) states that “no

discovery shall be permitted at any stage of the proceedings, except upon

leave of court after a showing of exceptional circumstances.” Pa.R.Crim.P.

902(E)(1).

            Neither the PCRA nor the Pennsylvania Rules of Criminal
      Procedure define the term “exceptional circumstances.” This
      Court, however, has held that the trial court, in its discretion[,]
      determines whether a case is exceptional and warrants discovery.
      Thus, we will not disturb a court’s determination regarding the
      existence of exceptional circumstances unless the court abused its
      discretion.

Commonwealth v. Watley, 153 A.3d 1034, 1048 (Pa. Super. 2016)

(citations, brackets, and some quotation marks omitted).

      Here, Davis baldly alleges that these policies would have supported his

claims of ineffectiveness, but does not indicate how disclosure of these policies

would have supported these claims.        See Watley, supra.      Moreover, as

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discussed supra, Davis’s convictions were supported by overwhelming

evidence, and there is no evidence to suggest that production of these policies

would have supported his case at trial.        See Watley, supra.    As Davis

suffered no prejudice, this claim fails.

      In his eighth claim, Davis alleges that the PCRA court erred in denying

his Motion for an evidentiary hearing. See Brief for Appellant at 30.

      Because the record reflects that Davis’s arguments lack arguable merit,

and he failed to establish that he suffered actual prejudice, we conclude that

the PCRA court did not abuse its discretion in dismissing Davis’s Petition

without a hearing. See Brown, supra; Baumhammers, supra.

      Based on the foregoing, we affirm the PCRA court’s Order.

      Order affirmed.

      Judge Shogan joins the memorandum.

      Judge Lazarus concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2020




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