J-S23027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARREN TALBERT                             :
                                               :
                       Appellant               :   No. 2480 EDA 2017

                   Appeal from the PCRA Order July 11, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0004677-2012,
                            CP-23-CR-0004680-2012


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

MEMORANDUM BY NICHOLS, J.:                                 FILED JULY 17, 2018

        Appellant Darren Talbert appeals pro se from the order dismissing his

first timely petition filed under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. Appellant claims that the PCRA court erred in rejecting

his claims based on the ineffective assistance of counsel and a violation of

Brady v. Maryland, 373 U.S. 83 (1963). We affirm in part, reverse in part,

and remand for an evidentiary hearing.

        The trial court set forth the facts of this case as follows:

        On July 3, 2012 at 10:30 p.m.[,] Officer Kristine McAleer of the
        Upper Darby Township Police Department’s Narcotics Unit met
        with a black male, known to her at that time as “Money[,”] on
        Baltimore Pike and Lewis Avenue for the purpose of purchasing
        heroin. Officer McAleer contacted “Money” using cellular number
        215-776-9834. Officer McAleer handed “Money” sixty dollars in
        US currency in exchange for six white bags each containing a blue
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S23027-18


     wax paper bag filled with an off[-]white substance. “Money”
     advised Officer McAleer to contact him at cellular number 215-
     776-9834 for further purchases of heroin. Officer McAleer
     returned to headquarters and conducted a field test on the off-
     white substance using a Narco test kit. The test yielded a positive
     reaction for the presence of heroin.

     On July 11, 2012 at 8:30 p.m.[,] Officer McAleer for the second
     time met with a black male, known as “Money,” at 69th Street and
     Ludlow Avenue for the purpose of purchasing heroin. Officer
     McAleer contacted “Money” using cellular number 215-776-9834.
     Officer McAleer handed “Money” sixty dollars in US currency in
     exchange for six white bags each containing a blue wax paper bag
     filled with an off-white substance. “Money” advised Officer
     McAleer to contact him at cellular number 215-776-9834 for
     further purchases of heroin. Officer McAleer returned to
     headquarters and conducted a field test on the off-white
     substance using a Narco test kit. The test yielded a positive
     reaction for the presence of heroin.

     Members of the Upper Darby Township Narcotics Unit had
     previously set up surveillance at 69th Street and Ludlow Avenue.
     The officers observed a blue Chevrolet Uplander bearing PA
     registration HZF-2042 pull up and park. Officers then observed an
     unknown black male exit this vehicle and walk directly to Officer
     McAleer. After a short period of time the unknown black male
     walked away from Officer McAleer and directly back to his vehicle,
     without making any stops. The vehicle was then observed leaving
     the area.

     On July 12, 2012 at 5:40 p.m.[,] Officer McAleer for the third time
     met with a black male, known as “Money,” at 69th Street and
     Ludlow Avenue for the purpose of purchasing heroin. Officer
     McAleer contacted “Money” using cellular number 215-776-9834.
     Officer McAleer handed “Money” sixty dollars in US currency in
     exchange for six white bags each containing a blue wax paper bag
     filled with an off[-]white substance. Members of the Upper Darby
     Township Narcotics Unit had previously set up surveillance at 69th
     Street and Ludlow Avenue. Officers observed the Uplander
     bearing PA registration HZF-2042 pull up and park. Officers then
     observed an unknown black male exit the vehicle and proceed
     directly to Officer McAleer. After a short period of time the
     unknown black male walked away from Officer McAleer and
     directly to the vehicle, without making any stops. At this time
     members of the Upper Darby Township Narcotics Unit approached

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J-S23027-18


     the vehicle and took “Money” into custody. “Money” was identified
     as Darren Talbert [(Appellant)]. Located on [Appellant] at the
     time of his arrest was a black and silver AT&T cellular phone, and
     five hundred and seventy dollars in US currency. Located inside
     the vehicle were two small children and an adult male identified
     as Mrwan Mohamed of 9601 Ashton Road, Apartment 26
     Philadelphia[,] Pa[,] 19114. Mr. Mohamed was also arrested and
     charged in this matter.

     Officer Timothy M. Bernhardt was present at [Appellant]’s arrest.
     Officer Bernhardt has been a police officer for the past fifteen
     years, the last ten of which were with the Upper Darby Police
     Department, and for the last seven years he was assigned to the
     narcotics division. At the time of [Appellant]’s arrest, [Appellant]
     was operating a blue Chevrolet Uplander bearing Pennsylvania
     registration HZF-2042. Officer Bernhardt observed [Appellant]
     driving this vehicle on all three occasions during the narcotics
     investigation. Based upon Officer Bernhardt’s observations and
     Officer McAleer[’s] investigation, it was Officer Bernhardt’s belief
     this vehicle was operated by [Appellant] while in the possession
     of illegal narcotics.

     Officer Bernhardt decided to impound the vehicle. Since the
     vehicle was located only a few blocks from the Police Station,
     Officer Bernhardt drove it there rather than having it towed. Upon
     arriving at the Police Station, Officer Bernhardt parked in their
     secure lot, locked the vehicle and then returned to duty to assist
     with other ongoing investigations.

     The next day, July 13, 2012, Officer Bernhardt returned to
     [Appellant]’s vehicle to conduct an inventory of the Chevrolet
     Uplander per Upper Darby Township Police Department Policy
     #1200, “Inventory Searches of Auto’s.” Officer Bernhardt
     observed an air conditioning vent that was not properly attached
     to the vehicle dashboard. Officer Bernhardt was able to see the
     butt of a handgun through the air conditioning vent. Based on
     Officer Bernhardt’s training and experience, he believed it is not
     uncommon for individuals to hide their monies, and or narcotics
     in hidden compartments.

     After seeing the gun, Officer Bernhardt stopped the inventory
     search and obtained a search warrant. On Friday[,] July 13, 2012
     at approximately 4:15 p.m., Officer Bernhardt executed a search
     warrant on the blue Chevrolet Uplander bearing Pennsylvania
     registration HZF-2042 that was being operated by [Appellant].


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      The following items were located as a result of the search: One
      (1) fully loaded Smith & Wesson 9mm hand gun with an
      obliterated serial number, Eighty Five (85) white plastic bags each
      filled with a blue wax paper bag filled with an off white substance,
      one Wachovia Check Card # 4828 6232 4901 2015 in the name
      Darren Talbert, one brown Gucci bag which contained the above
      mention[ed] Eighty Five (85) bags, one clear ziploc bag stamped
      with an apple, mail addressed to Darren Talbert of 325 N. 52nd
      Street, Philadelphia PA[,] 19139, a copy of proof of insurance for
      the Chevrolet Uplander policy number # 4065314, and a copy of
      the Pennsylvania registration for the Chevrolet Uplander bearing
      PA registration HZF-2042.

PCRA Ct. Op., 9/14/17, at 1-6.

      Appellant was arrested and charged with various offenses at two

separate dockets, CP–23–CR–0004680–2012 (Docket No. 4680) and CP–23–

CR–0004677–2012 (Docket No. 4677), arising from his sales of heroin to the

undercover police officer on July 3rd, 11th, and 12th of 2012.               See

Commonwealth v. Talbert, 51 EDA 2014, 2015 WL 7287984, at *1 (Pa.

Super. 2015) (unpublished mem.). The trial court consolidated Appellant’s

cases.

      Prior to trial, Appellant filed a motion to suppress, in relevant part, the

items obtained during the search of Appellant’s person and vehicle. See Mot.

to Suppress, 6/4/13. The trial court held a hearing on Appellant’s motion to

suppress on June 11, 2013. See generally N.T., 6/11/13. We quote the

relevant testimony from that hearing below. In denying Appellant’s motion,

the court reasoned that there was no doubt that probable cause existed to

arrest Appellant and impound the vehicle he was driving, based on the officers’

observations regarding Appellant’s involvement in the sales of narcotics.


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Order Denying Mot. to Suppress, 8/7/13, at 8. The court further reasoned

that the inventory search of the vehicle was also proper as the vehicle was

lawfully in police custody and the search was performed in good faith and in

accordance with reasonable, standard police procedures. Id. at 8-9.

       On August 15 and 16, 2013, the trial court held a trial. During trial,

Appellant’s    counsel     (trial   counsel)     stipulated   to   the   admission   of

Commonwealth’s exhibits C-4, C-5, and C-8. See N.T., 8/15/13, at 220-22.

Exhibit C-4 was identified as being a manila envelope dated July 11, 2012,

containing six bags with a blue wax paper and an off-white substance. Id.

Exhibit C-5 was also identified as being a manila envelope containing six bags

with a blue wax paper and an off-white substance, but dated July 12, 2012.

Id. Exhibit C-8 was identified as the forensic lab report. Id. The relevant

exchange regarding these stipulations was as follows:

       [Commonwealth]: Specifically that in Commonwealth’s Exhibits C-
       1, C-4 and C-5 were submitted on July 3, 2012 by Detective Brad
       Ross of the Upper Darby Township Police Department to the
       Pennsylvania State Police Bureau of Forensic Services, Lima
       Regional Laboratory.[1] And that on or about September 17, 2012
       the bags contained in C-1, C-4 and C-5 were analyzed by Irena B.
       Eleshkovitch, Forensic Scientist II from the Lima Regional
       Laboratory, who concluded the following. . . . As to
       Commonwealth’s Exhibit C-4, the powder in those bags was
       weighed at eleven-hundredths of a gram. The contents of a single
       bag which weighed three-hundredths of a gram were analyzed and
       found to contain heroin, Schedule I controlled substance. And as

____________________________________________


1 We have the benefit of most of the exhibits being included in the certified
record. A review of the forensic lab report shows the date Detective Brad Ross
submitted exhibits C-4 and C-5 as July 30, 2012. See Drug Identification Lab
Report, 9/17/12, at 1.

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      to Commonwealth’s Exhibit C-5, the powder in those bags
      weighed fifteen-hundredths of a gram. The contents of a single
      bag weighed two-hundredths of a gram and were analyzed and
      found to contain heroin, a Schedule I. Your Honor, we further
      stipulate that if called to testify Irene B. Eleshkovitch would be
      qualified as an expert in the Field of Forensic Science and Analysis.
      And that proper procedure were used during her analysis of
      Commonwealth’s Exhibit C-1, C-4 and C-5. And following that a
      proper chain-of-custody has been maintained to Commonwealth’s
      Exhibits C-1, C-4 and C-5 from the time that they were obtained
      by Officer Mc[A]leer to the time they were analyzed at the lab and
      up until they were presented in court today.

      [Trial counsel]: So stipulated.

N.T., 8/15/13, at 220-22 (emphasis added).

      On August 16, 2013, a jury convicted Appellant of the following offenses.

At Docket No. 4680, the jury found Appellant guilty of possession with intent

to deliver (PWID), PWID where Appellant possessed a firearm, and conspiracy

to commit PWID. See N.T., 11/15/13, at 3-4. At Docket No. 4677, the jury

found Appellant guilty of PWID, conspiracy, possession of a firearm with an

altered serial number, and carrying a firearm without a license. Id. at 3-4.

Appellant’s aggregate sentence was six to twelve years’ incarceration,

followed by five years’ probation. Id. at 20.

      Appellant filed a direct appeal to this Court arguing: (1) that the trial

court erred in failing to grant the motion to suppress the contents of the




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vehicle;2 (2) sufficiency of the evidence; and (3) that the mandatory minimum

sentence imposed was unconstitutional in light of Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).3 See Talbert, 51 EDA

2014, 2015 WL 7287984, at *2.                  On April 1, 2015, this Court affirmed

Appellant’s convictions, but vacated Appellant’s sentence under 42 Pa.C.S. §

9712.1, and remanded for resentencing.              Id. at *8-*9.   On May 1, 2015,

Appellant filed a petition for allowance of appeal, which the Pennsylvania

Supreme Court denied on October 27, 2015.




____________________________________________


2 During oral argument, Appellant’s counsel indicated that he was abandoning
the suppression issue. Talbert, 51 EDA 2014, 2015 WL 7287984, at *2.
Accordingly, this Court did not address that issue on appeal. Id.

3The Newman Court held that the holding of Alleyne v. United States, 570
U.S. 99 (2013), rendered 42 Pa.C.S. § 9712.1, relating to sentences for
certain drug offenses committed with firearms, unconstitutional in its entirety.
See Newman, 99 A.3d at 98.

Section 9712.1(a) provides in relevant part:

       Mandatory sentence.—Any person who is convicted of a
       violation of section 13(a)(30) . . . , when at the time of the offense
       the person or the person’s accomplice is in physical possession or
       control of a firearm, whether visible, concealed about the person
       or the person’s accomplice or within the actor’s or accomplice’s
       reach or in close proximity to the controlled substance, shall
       likewise be sentenced to a minimum sentence of at least five years
       of total confinement.


42 Pa.C.S. § 9712.1(a).


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      On January 25, 2016, the trial court resentenced Appellant to an

aggregate term of 72 to 136 months’ incarceration. Appellant did not appeal

the resentencing order.

      On February 16, 2016, Appellant filed his pro se first PCRA petition. In

his petition, Appellant alleged:

      1. Trial counsel was unconstitutionally ineffective—counsel
      neglected to motion to arrest the criminal bill of information
      against [Appellant]. In light of extraordinary circumstances. [sic]

      2. [Appellant]’s right to due process and a fair trial were violated
      by the misconduct of the District Attorney and deficient
      performance of defense counsel in failing to protect [Appellant]’s
      rights under the confrontation clause and the compulsory process
      in joint stipulations of and for the admissibility of the lab reports
      absent under oath qualifications.

      3. The Commonwealth prosecuted the criminal matter in the case
      of Com. v. Darren Talbert, 4677-2012 and 4680-2012 in direct
      violation of the Pa. Rules of Discovery, Brady, and confrontation
      clause.

      4. In light of trial counsel’s deficient representation in failing to
      conduct mandatory pre-trial investigation which would have
      revealed illegal police questioning of a minor known to be
      [Appellant]’s younger brother age ‘8’ in absence of a parent or
      guardian.

      5. [Appellant]’s arrest, detention, subsequent jury trial
      convictions and the resulting sentences is [sic] unconstitutional
      and in direct violation of the Miranda[v. Arizona, 384 U.S. 436
      (1966)] rule.

      6. The good faith exception does not extend to the herein
      meritable case issues [1] through [7], the Commonwealth and its
      police agents sought not to pursue the interest of justice but
      rather a mere conviction and the court abandon[ed] its position of
      impartiality.

      7. The trial court engaged in the role of super prosecutor when
      the Commonwealth obviously received preferential treatment
      during a sidebar conference regarding the admissibility and the

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J-S23027-18


      purported facts relevant to the introduction of photo identification
      of which is arguably at odds with United States Supreme Court
      controlling decisional law pursuant to Brady v. Maryland.

Mot. for Post Conviction Collateral Relief, 2/16/16, at 8, 13, 15, 17, 19, 21,

23 (unpaginated).

      The PCRA court appointed counsel. On December 16, 2016, however,

Appellant filed a motion to proceed pro se. On January 31, 2017, the court

held a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.

1998). On February 2, 2017, the court granted Appellant’s petition to proceed

pro se.

      On March 15, 2017, Appellant filed an amended PCRA petition raising

the same allegations as in his original PCRA petition and further alleging:

      1. Trial court’s instruction on the charge of possession of a firearm
         with obliterated manufacturer’s number was erroneous
         because it did not require the Commonwealth to prove beyond
         a re[a]sonable doubt that [Appellant] knew that the serial
         number on the firearm had been obliterated when he
         possessed it.

      2. [Appellant]’s right to due process and a fair trial guaranteed by
         the state and federal constitutions were violated by the
         misconduct of the Assistant District Attorney design[ed]
         intentionally to deprive petitioner of equal protection of the law
         and to secure a conviction through the concealment of
         exculpatory and impeachment evidence as well as the deficient
         performance of trial counsel in failing to conduct a mandatory
         pre-trial investigation.

      3. When denying [Appellant]’s 4th [A]mendment challenge on
         grounds of unlawful search the court engaged in the role of
         super prosecutor by shrewd and calculated misrepresentation
         of the case record facts via memorandum mandate to assist
         the Commonwealth in the introduction of evidence in absence
         of establishing a proper chain of custody.


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      4. Trial and appella[te] counsel rendered ineffective assistance
         when neglecting to pursue and p[re]serve prejudicial error by
         the court’s failure to provide the jury with instructions on the
         elements of entrapment in the presence of overwhelming
         evidence that [Appellant] was the victim of police persuasions
         constitutes reversible error.

Am. Pet. for Post-Conviction and Habeas Corpus Relief Under the Post-

Conviction Act and the Pennsylvania Constitution (Amended PCRA), 3/15/17,

at 19, 21, 26, 28 (unpaginated).

      On May 4, 2017, the PCRA court filed a notice of its intent to dismiss the

petition without a hearing. The court found that Appellant was attempting to

re-litigate his underlying criminal conviction and that all his claims were

previously litigated or waived. See Twenty Day Notice of Intent to Dismiss

PCRA Pet. Without a Hr’g, 5/4/17, at 3. The court further found that Appellant

failed “to proffer any evidence whatsoever to support his claim.” Id. As for

Appellant’s ineffectiveness claims, the PCRA court stated that Appellant had

“not raised any genuine issues of material fact or stated any grounds entitling

him to relief under the PCRA.” Id. at 6.

      On June 19, 2017, Appellant filed a response to the PCRA court’s notice

of intent to dismiss. In his response, Appellant narrowed his arguments down

to the following: (1) trial counsel was ineffective “by failing to [m]otion to

[a]rrest the criminal bill of information”; (2) trial counsel was ineffective “by

reason of joint stipulation for the admissibility of the lab reports, essentially

violating [Appellant]’s right to confront witnesses”; (3) trial counsel was

ineffective “by failing to conduct a mandatory pre-trial investigation, which


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would have revealed illegal police questioning of a legal minor known to be

[Appellant]’s younger brother in the absence of a parent or legal guardian”;

and (4) the Commonwealth “intentionally committed fraud upon the [c]ourt

in order to secure a criminal conviction against [Appellant].” Objs. to Notice

of Intent to Dismiss PCRA, 6/19/17, at 2, 4, 6, 7.

      On July 11, 2017, the PCRA court dismissed Appellant’s petition.

Appellant filed a timely notice of appeal. On August 3, 2017, the PCRA court

ordered Appellant to file a Pa.R.A.P. 1925(b) statement, and Appellant

complied.   On September 14, 2017, the court filed a responsive Pa.R.A.P.

1925(a) opinion.

      Appellant, in his pro se brief, raises four issues on appeal, which we

have reordered as follows:

      1. Was trial counsel ineffective for stipulating to evidence which
         was at variance with the facts of the case, specifically by
         stip[u]lating that exhibits C-4 and C-5 were submitted to the
         Lima Regional Laboratory on July 3, 2012?

      2. By stipulating to the proper chain of custody for the contents
         as well as to the authenticity of the results of a forensic lab
         report [(exhibit C-8)] where there exist[s] a clear fault in the
         chain which raises direct questions as to the truthfulness of the
         report was Appellant denied due process through trial counsel’s
         stipulation and failure to request the presence of the forensic
         scientist for cross-examination?

      3. Was trial counsel ineffective for failing to conduct a pre-trial
         investigation into the items recovered from Appellant at the
         time of arrest as well as the items recovered during the
         subsequent search of his vehicle prior to engaging into the
         stipulation where there existed the presence of exculpatory
         information?



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       4. Did the Commonwealth intentionally conceal exculpatory
          evidence from the [c]ourt at Appellant’s suppression hearing
          through contesting against its existence and thereafter
          stipulating with trial counsel during trial that the evidence does
          in fact exist and was recovered from Appellant’s vehicle?

Appellant’s Brief at 4-5.

       As a prefatory matter, we note that our standard of review from the

dismissal of a PCRA petition “is limited to examining whether the PCRA court’s

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

legal error.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super.

2011) (citation omitted). “The PCRA court’s credibility determinations, when

supported by the record, are binding on this Court; however, we apply a de

novo    standard   of   review   to   the   PCRA   court’s   legal   conclusions.”

Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014) (citation

omitted).    Moreover, “[t]o be entitled to PCRA relief, [the defendant] must

establish, by a preponderance of the evidence, that his conviction or sentence

resulted from one or more of the circumstances enumerated in 42 Pa.C.S. §

9543(a)(2), and that the allegation of error has not been previously litigated

or waived.” Id. at 1265-66.

I.     Ineffectiveness

       It is well-settled that to establish a claim of ineffective assistance of

counsel, a defendant “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.” Commonwealth

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v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). The

burden is on the defendant to prove all three of the following prongs: “(1)

the underlying claim is of arguable merit; (2) that counsel had no reasonable

strategic basis for his or her 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); see

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).

       Our Supreme Court has explained:

       A chosen strategy will not be found to have lacked a reasonable
       basis unless it is proven that an alternative not chosen offered a
       potential for success substantially greater than the course actually
       pursued. Prejudice in the context of ineffective assistance of
       counsel means demonstrating that there is a reasonable
       probability that, but for counsel’s error, the outcome of the
       proceeding would have been different. Counsel is presumed to
       have been effective and the burden of rebutting that presumption
       rests with the petitioner.

Commonwealth v. Fletcher, 986 A.2d 759, 772 (Pa. 2009) (quotation

marks and citations omitted).

       We add that “boilerplate allegations and bald assertions of no reasonable

basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove

that counsel was ineffective.” Commonwealth v. Paddy, 15 A.3d 431, 443

(Pa. 2011). Moreover, “[a] failure to satisfy any prong of the ineffectiveness

test requires rejection of the claim of ineffectiveness.” Daniels, 963 A.2d at

419.




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      A. Stipulations


      Appellant’s first two issues involve claims that trial counsel was

ineffective in entering into stipulations with the Commonwealth as to exhibits

C-4, C-5, and C-8. We will discuss them together.

      Appellant argues that his first two issues have arguable merit because

trial counsel entered into a stipulation as to “Commonwealth’s exhibit[s] C-4

and C-5 [being] confiscated and submitted to the Lima Regional Laboratory

for testing on July 3, 2012” when the investigating officer testified that these

exhibits were not confiscated until July 11th and 12th. See Appellant’s Brief

at 12 (citing N.T., 8/15/13, at 162-69, 220-22).         Moreover, trial counsel

stipulated to the admission of C-8—the forensic lab report—without the in-

court testimony of the analyst who prepared the report. Id. at 16. This,

Appellant argues, deprived him of the opportunity to confront and cross-

examine the analyst.    Id.

      Generally, “testimony entered by counsel’s stipulation may be so

damaging that admission of the stipulation at trial must be surrounded by

safeguards   similar   to   those   attending   the   entry   of   a   guilty   plea.”

Commonwealth v. Williams, 443 A.2d 338, 342 (Pa. Super. 1982) (citing

Commonwealth v. Davis, 322 A.2d 103, 105 (Pa. 1974)). Thus, there must

be an on-the-record colloquy to insure that a defendant is making a knowing

and understanding decision to waive his valuable Sixth Amendment right to

confront the Commonwealth’s witness. Id. at 344 (citing Davis, 322 A.2d at


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105. The question we ask is whether the stipulation made the outcome of the

trial a forgone conclusion. Id. at 342 (citing Davis, 322 A.2d at 105).

        Moreover, in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009),

the United States Supreme Court explained that the “Sixth Amendment to 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.”    Id. at 309.    The Melendez-Diaz Court explained that analysts’

affidavits are testimonial statements covered by the Confrontation Clause and

that analysts are witnesses for purposes of the Sixth Amendment. Id. at 311.

“Absent a showing that the analysts [are] unavailable to testify at trial and

that petitioner had a prior opportunity to cross-examine them, petitioner [is]

entitled to be confronted with the analysts at trial.” Id. (emphasis, citation,

and internal quotation marks omitted).

        Here, the record contains discrepancies as to when the narcotics were

recovered—July 11 and 12, 2012—and when they were submitted to the lab—

July 3, 2012, or July 30, 2012.        See N.T., 8/15/13, at 221-22; Drug

Identification Lab Report, 9/17/12, at 1. Nevertheless, trial counsel’s only

response was “[s]o stipulated.” See id.

        Furthermore, there is no indication that trial counsel explained to

Appellant the rights he was giving up by entering into the stipulation. See

Williams, 443 A.2d at 342. Trial counsel entered into the stipulation as to

the admissibility of exhibit C-8 and the proposed testimony of the analyst,


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waiving Appellant’s right to confront the analyst, notwithstanding the fact that

the Commonwealth did not claim that the analyst who prepared the lab report

was unavailable. See generally N.T., 8/15/13, at 221; see also Melendez-

Diaz, 557 U.S. at 311.

      Moreover, trial counsel did not object to the lack of an “on-the-record

colloquy” by the trial court to insure that Appellant was making a knowing and

understanding decision to waive his Sixth Amendment right to confront the

Commonwealth’s witnesses. See Williams, 443 A.2d at 344.

      Thus, the stipulations at issue made the outcome of the trial a foregone

conclusion—that the items Appellant sold to Officer McAleer on July 11 and

12, 2013 and submitted to the lab for testing were narcotics, i.e., heroin. See

id. at 342. Therefore, we conclude Appellant’s first two issues have arguable

merit.

      Next, Appellant argues that trial counsel had no reasonable basis for

stipulating to the admissibility and chain of custody of exhibits C-4, C-5, and

C-8 because the lab report was inconsistent with the facts of the case and the

Commonwealth relied heavily on those reports in convicting him of PWID.

Appellant’s Brief at 13, 16-18.

      In making a determination as to reasonable basis, “our Supreme Court

has cautioned against finding no reasonable basis for trial counsel’s actions in

the absence of supporting evidence.”          See Commonwealth v. Reyes-

Rodriguez, 111 A.3d 775, 783-84 (Pa. Super. 2015) (en banc). “The fact


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that an appellate court, reviewing a cold trial record, cannot prognosticate a

reasonable basis for a particular failure to raise a plausible objection does not

necessarily prove that an objectively reasonable basis was lacking.” Id. at

784 (citation omitted). “This Court does not sit as a fact-finder.” Id.

       Here, we do not have the benefit of trial counsel’s testimony from a

PCRA hearing.      While trial counsel might have had a reasonable basis for

stipulating to the admission of the lab report,4 we have no evidence of record

of what that basis might have been. Further, we have no evidence of record

that trial counsel discussed with Appellant what the stipulation was about, the

rights Appellant was waiving by entering into the stipulation, and the


____________________________________________


4 The Melendez-Diaz Court acknowledged that there are situations where
there may be a strategic basis for counsel to enter into stipulations regarding
the testimony of an analyst:

       Defense attorneys and their clients will often stipulate to the
       nature of the substance in the ordinary drug case. It is unlikely
       that defense counsel will insist on live testimony whose effect will
       be merely to highlight rather than cast doubt upon the forensic
       analysis. Nor will defense attorneys want to antagonize the judge
       or jury by wasting their time with the appearance of a witness
       whose testimony defense counsel does not intend to rebut in any
       fashion. The amicus brief filed by District Attorneys in Support of
       the Commonwealth in the Massachusetts Supreme Court case
       upon which the Appeals Court here relied said that it is almost
       always the case that [analysts’ certificates] are admitted without
       objection. Generally, defendants do not object to the admission
       of drug certificates most likely because there is no benefit to a
       defendant from such testimony.

Melendez-Diaz, 557 U.S. at 328 (internal quotation marks, footnote, and
citation omitted).


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consequences of such stipulation.     See Melendez-Diaz, 557 U.S. at 311;

Williams, 443 A.2d at 342.

      Finally, Appellant argues that he was prejudiced because the stipulations

“relieved the Commonwealth of its burden to prove its case beyond a

reasonable doubt that the substances forwarded to the lab were in fact

narcotics.”   Appellant’s Brief at 14.    Appellant also claims that he was

prejudiced because trial counsel’s stipulation “hampered” his right to confront

the forensic scientist regarding whether C-8 was “submitted to the lab on July

3, 2012 and [the results in the lab report] are in fact the results of a true and

authentic analysis prepared by [the analyst].”    Id. at 19.

      In establishing prejudice, Appellant must prove that there is a

reasonable probability that, but for trial counsel’s error, the outcome of the

proceeding would have been different.     See Fletcher, 986 A.2d at 772.

      Here, the stipulations to exhibits C-4, C-5, and C-8 prevented Appellant

from determining when the alleged narcotics were submitted to the lab for

testing. Moreover, he was deprived of his right to confront and cross-examine

the analyst as to this discrepancy in dates and whether the results in the lab

tests were result of a true and authentic analysis. See Melendez-Diaz, 557

U.S. at 311. If the aforementioned exhibits were submitted to the lab for

testing on July 3, 2012, prior to the sales on July 11 and 12, the discrepancy

in dates could render the lab results inadmissible.       This could lead to a

reasonable probability that the proceeding would have been different. See


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Fletcher, 986 A.2d at 772; Turetsky, 925 A.2d at 880.        Thus, we conclude

Appellant has established prejudice.

      Because the trial court did not hold a hearing on Appellant’s PCRA

petition, we have no record to determine trial counsel’s basis for entering into

the stipulations.   Therefore, we remand for an evidentiary hearing to

determine whether trial counsel had a reasonable basis for entering into the

stipulations of exhibits C-4, C-5, and C-8. See Reyes-Rodriguez, 111 A.3d

at 778 (“[A] lawyer should not be held ineffective without first having an

opportunity to address the accusation in some fashion.” (footnote and citation

omitted)).

      B. Pre-trial Investigation

      Next, Appellant claims trial counsel was ineffective for failing to conduct

a “pre-trial investigation” into the items recovered from Appellant at the time

of his arrest or from the subsequent search of the vehicle. Appellant’s Brief

at 26.    Appellant claims that had trial counsel conducted a pre-trial

investigation, he would have discovered “fruitful results through the

acquisition of favorable information concerning the existence and date of

recovery of the I.D. cards.” Id. Appellant argues that with this information,

counsel could have challenged the seizure of the I.D. cards. Id. He further

argues that counsel had no reasonable basis for failing to investigate,

especially since counsel was aware that the vehicle was driven “to police

headquarters by one of the arresting/investigating officers.”        Id. at 27.


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Regarding the prejudice prong, Appellant claims that counsel’s failure to

investigate led to a stipulation without first establishing a proper chain of

custody.   Id. at 28.   More specifically, Appellant claims that because the

investigating officer applied for a search warrant on July 13, 2012, the I.D.

cards seized on July 12, 2012 were unlawfully obtained. Id. at 28-29.

     By way of background, at the suppression hearing, trial counsel

attempted to address a discrepancy regarding I.D. cards recovered following

Appellant’s arrest. See generally N.T., 6/11/13, at 80-92. The following

relevant exchange occurred:

     [Trial counsel]: Officer McAleer is the author of the incident report,
     dated July 12, apparently, she would have known where the
     items, with respect to -- and to wit, money, silver -- excuse me.
     Black and silver AT&T phone and by money, I don’t mean what
     the Commonwealth [sic] allegation about his alias. I’m talking
     about actual United States currency and as well as, a black cell
     phone, a Pennsylvania I.D. card, as well as, a debit card, where
     those items were recovered from.

     [The Court]: Commonwealth?

     [Commonwealth]: With respect to the items referenced in the
     police report as being seized to [Appellant] at the time of his
     arrest, I’ll stipulate that those items were taken from him, incident
     to an arrest.

     [The Court]: Okay.

     [Trial counsel]: Well, I’m not asking for that stipulation because
     the paperwork is not clear to me. That’s why -- I -- we have a
     different opinion. I think that those items were taken from the
     Uplander and that’s what I want to get to the bottom of. Since
     she’s the author of this report . . .

                                     ***




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J-S23027-18


      [Trial counsel]: That’s part of the -- that’s the head scratcher. If
      she testified -- she testified exactly to that and then on the report
      that she authored, says something very different.

                                     ***

      [Trial counsel]: [Officer McAleer] did you author an incident report
      regarding the circumstances of July 12?

                                     ***

      [Officer McAleer]: Yes.

      Q. Okay. And in that incident report, you chronicled money having
      been recovered, as well as a cell phone. Agree?

      A. Okay, yes.

      Q. Okay. And a debit card and a PA identification card in the name
      of [Appellant]. Right?

                                     ***

      [Commonwealth]: Wait a second.               Objection,   Judge,   to
      misconstruing what’s in her report.

      [Trial counsel]: And if she didn’t, she can say no.

      [The court]: I’m sorry. What did you . . .

      [Commonwealth]: Well, that -- I’m sorry, Judge. If he’s going to
      ask about her report, he has to let her -- he can’t try to trick her
      and say that’s in there too. Ha-ha, it’s not.

      [The court]: Yeah. Okay.

Id. at 80-82, 86-87.

      It is well settled that “[c]ounsel has a general duty to undertake

reasonable investigations or make reasonable decisions that render particular

investigations unnecessary. Counsel’s unreasonable failure to prepare for trial

is ‘an abdication of the minimum performance required of defense counsel.’”




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Commonwealth v. Johnson, 966 A.2d 523, 535 (Pa. 2009) (citation

omitted).

      A review of the transcript of the hearing on Appellant’s motion to

suppress shows that counsel was aware of the discrepancy regarding when

and where the I.D. cards were recovered. See generally N.T., 6/11/13, at

80-92. However, Appellant’s counsel was unsuccessful in attempting to raise

this issue. Id.

      Moreover, counsel for Appellant ultimately had the information related

to the I.D. cards admitted at trial. See N.T., 8/16/13, at 9-10, 14. During

trial, Sergeant Bernhart testified that a search of the vehicle revealed, among

other things, Pennsylvania I.D. cards, one with Appellant’s name. Id. Upon

counsel’s   questioning   during   cross-examination,     Sergeant    Bernhart

acknowledged that he could not make out the names. Id. at 14. Further, the

Commonwealth stipulated that the names on the cards were of Aaron Talbert-

Wilkinson and Mrwan Mohamed, not Appellant’s.        Id. at 14.   Accordingly,

Appellant has not met his burden of proving that there is an issue of arguable

merit, nor does he explain how he has been prejudiced.

II.   Brady Violation

      Next, Appellant contends that the Commonwealth “withheld exculpatory

and impeachment evidence during his pre-trial suppression hearing by

resorting to extreme measures in making an objection to deflect the nature

and existence of exculpatory evidence.” Appellant’s Brief at 21. Specifically,


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Appellant argues that “by objecting and arguing against the existence of the

exculpatory evidence at the suppression stage and then to ultimately present

a stipulation confirming its existence amounts to fraud upon the court.” Id.

      To succeed on a Brady claim, an appellant must show that: “(1) the

evidence at issue was favorable to the accused, either because it is

exculpatory or because it impeaches; (2) the evidence was suppressed by the

prosecution, either willfully or inadvertently; and (3) prejudice ensued.”

Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (citation omitted).

The evidence must be “material evidence that deprived the defendant of a fair

trial.” Id. (citation omitted). Further, constitutional error results from the

Commonwealth’s suppression of the evidence “if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” Id. Appellant bears the burden

of proving “by reference to the record, that evidence was withheld or

suppressed by the prosecution.” Id.

      The Pennsylvania Supreme Court has further explained that

      Brady does not require the disclosure of information “that is not
      exculpatory but might merely form the groundwork for possible
      arguments or defenses,” nor does Brady require the prosecution
      to disclose “every fruitless lead” considered during a criminal
      investigation. The duty to disclose is limited to information in the
      possession of the government bringing the prosecution, and the
      duty does extend to exculpatory evidence in the files of police
      agencies of the government bringing the prosecution. Brady is
      not violated when the appellant knew or, with reasonable
      diligence, could have uncovered the evidence in question, or when
      the evidence was available to the defense from other sources.


                                     - 23 -
J-S23027-18



Id. at 608 (citations and emphasis omitted).

      Initially, we note that Appellant had this information available at the

time of his direct appeal, but failed to raise it. Thus, he has waived this claim.

See 42 Pa.C.S. § 9544(b) (“[A]n issue is waived if the petitioner could have

raised it but failed to do so . . . on appeal[.]”).

      In any event, we note that Appellant incorrectly states that the

Commonwealth objected to the existence or admissibility of identification

cards at the suppression hearing. During that hearing, the only discussion of

identification cards was during Officer McAleer’s direct-examination, where

Appellant’s counsel asked Officer McAleer whether “a debit and a PA

identification card in the name of Darren Talbert” were recovered from

Appellant on July 12th. N.T., 6/11/13, at 87. The Commonwealth’s objection

was to the form of the question, which the Commonwealth argued, seemed to

“try to trick [the officer].” Id.

      Thus, Appellant has further failed to prove that the alleged material

evidence was suppressed by the Commonwealth. Accordingly, his claim of

prosecutorial misconduct fails.

      Order affirmed in part and vacated in part. Case remanded for further

proceedings regarding trial counsel’s basis for entering into the stipulations of

exhibits C-4, C-5, and C-8. Jurisdiction relinquished.




                                       - 24 -
J-S23027-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/18




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