J-S08033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ROY GARNETT                             :
                                         :
                   Appellant             :   No. 2635 EDA 2018

           Appeal from the PCRA Order Entered August 20, 2018
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0003841-2015


BEFORE:    BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED APRIL 24, 2019

     Appellant, Roy Garnett, appeals from the order entered in the Court of

Common Pleas of Delaware County dismissing his first petition filed under the

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

     On November 18, 2015, following a two-day trial, a jury convicted of

Possession with Intent to Deliver a Controlled Substance (Heroin), Possession

of a Controlled Substance (Heroin), Possession of Drug Paraphernalia, and

Criminal Conspiracy. On December 17, 2015, the court sentenced Appellant

to an aggregate term of 72 to 144 months’ incarceration, with an 11-year

probationary period to follow. Appellant filed a motion for reconsideration of

sentence, which the trial court denied on January 20, 2016.

     Appellant filed a timely direct appeal on February 2, 2016. Among his

issues was the assertion that the trial court erroneously refused his request

to amend the qualification of a Commonwealth expert witness—whom the

____________________________________
* Former Justice specially assigned to the Superior Court.
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Commonwealth had offered as an expert in narcotics distribution and

investigations—to include qualification as an expert in the area of narcotics

weight.    This Court, however, determined Appellant had waived the claim

because trial counsel not only failed to object to the court’s refusal but also

failed to ask for recordation of the pertinent sidebar discussion that preceded

the refusal. See Commonwealth v. Garnett, 393 EDA 2016, unpublished

memorandum (Pa.Super. filed March 27, 2017). Notably, we also observed

Appellant had not explained why qualifying the expert witness on narcotics

weight was important when the Commonwealth did not rely on weight to prove

intent to deliver and Appellant offered no weight-based defense.

        On March 26, 2018, Appellant filed a timely PCRA petition, his first.

Through counsel, Appellant claimed that trial counsel ineffectively failed to

object and make an appropriate record of the court’s expert qualification

ruling, and that direct appeal counsel ineffectively failed to assemble a

Pa.R.A.P. 19231 Statement containing an agreed-upon version of the sidebar
____________________________________________


1   Rule 1923, “Statement in Absence of Transcript,” provides:

        If no report of the evidence or proceedings at a hearing or trial
        was made, or if a transcript is unavailable, the appellant may
        prepare a statement of the evidence or proceedings from the best
        available means, including his recollection. The statement shall
        be served on the appellee, who may serve objections or propose
        amendments thereto within ten days after service. Thereupon the
        statement and any objections or proposed amendments shall be
        submitted to the lower court for settlement and approval and as
        settled and approved shall be included by the clerk of the lower
        court in the record on appeal.



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discussion at issue. The Commonwealth filed a court-ordered response, in

which it requested dismissal of Appellant’s petition without a hearing.

       On July 17, 2018, the PCRA court filed a Notice of Intent to Dismiss

pursuant to Pa.R.Crim.P. 907. PCRA counsel filed a response to the Rule 907

Notice, but the PCRA court entered its Order of August 20, 2018, dismissing

Appellant’s petition without an evidentiary hearing.         This timely appeal

followed.

       Appellant raises two related issues asserting the ineffective assistance

of prior counsel. The first issue maintains, “trial counsel was ineffective when

he failed to put on the record his objection to the ruling about the qualifications

of Officer Donohue as an expert in narcotics weight. Moreover, trial counsel

was ineffective for failing to ensure that the [trial court] put its ruling on the

record.” Appellant’s brief, at 8. The second issue claims direct appeal counsel

failed “to follow the procedure of Pa.R.A.P. 1923 in order to supplement the

record where it was silent in reference to sidebar about the qualifying of Officer

Donohue as an expert in narcotics weight.” Id. at 10.

       “Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.” Commonwealth v. Spotz,

171 A.3d 675, 678 (Pa. 2017). We must keep in mind that the petitioner has

____________________________________________




Pa.R.A.P. 1923.


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the burden of persuading this Court that the PCRA court erred and that such

error requires relief. Commonwealth v. Wholaver, 177 A.3d 136, 144-45

(Pa. 2018). This Court may affirm a valid judgment or order for any reason

appearing of record. Id. at 145.

         To be entitled to relief on a claim of ineffective assistance of counsel, a

PCRA petitioner must establish that (1) the underlying claim is of arguable

merit; (2) there was no reasonable basis for counsel’s action or failure to act;

and (3) but for counsel’s error, there is a “reasonable probability the result of

the proceeding would have been different.” Commonwealth v. Treiber, 121

A.3d 435, 444 (Pa. 2015). Failure to satisfy any of the three prongs is fatal

to a claim of ineffective assistance of counsel. Commonwealth v. Spotz, 84

A.3d 294, 311 (Pa. 2014).

         Moreover, we presume counsel provided effective assistance, and a

PCRA petitioner bears the burden of demonstrating counsel’s ineffectiveness.

Id.; see also Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011)

(noting “[w]hen evaluating ineffectiveness claims, judicial scrutiny of

counsel’s performance must be highly deferential.” (citation and internal

quotation marks omitted)). Additionally, the right to an evidentiary hearing

on a post-conviction petition is not absolute. Commonwealth v. Wah, 42

A.3d 335, 338 (Pa.Super. 2012).

         Appellant’s two ineffectiveness claims implicate the same moment at

trial.    As noted previously, the Commonwealth offered Officer Matthew

Donohue as an expert witness in illegal narcotics investigation. During voir

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dire on Officer Donohue’s qualifications, he testified he had been employed

with the Chester City Police Department for six years, the last two-and-one-

half years with the Narcotics Division. N.T. 11/18/15, at 5. He had taken

multiple classes on narcotics investigation and identification offered by the

Drug    Enforcement    Agency,   and    he   had   participated   in   undercover

investigations involving the use of confidential informants to obtain evidence

against suspected drug dealers. N.T. at 6-7.

       Donohue, himself, frequently posed as a buyer and made drug buys

directly from drug dealers. N.T. at 7-8.     His experience spanned “well over a

thousand” controlled substance investigations that resulted in arrests and

seizure of contraband, including approximately 250 involving heroin. N.T. at

8. He testified that he had gained additional knowledge about the illegal drug

trade by talking to hundreds of dealers he arrested who were willing to share

their knowledge and insights with him. N.T. at 11-12.

       Based on this experience, Officer Donohue has provided expert opinion

in District Court “two or three times a week” regarding whether seized

controlled substances were possessed for personal use or with the intent to

deliver, he testified. N.T. at 12-13. The Commonwealth asked him whether,

therefore, in light of his training and experience, he was familiar with “the

manner of preparation, cost, packaging, and consistency and sale of weights

of heroin?” N.T. at 13. Donohue said that he was. Id.

       The Commonwealth then referred back to his testimony that he had

been an expert witness in the field of “illegal drugs, drug distribution, and drug

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investigations,” and asked if he had testified to this effect in the Court of

Common Pleas, to which Officer Donohue answered that he had. N.T. at 13.

The Commonwealth, therefore, indicated it wished to offer Officer Donohue as

a witness “expert in the field of illegal drugs, drug distribution, and drug

investigations.” N.T. at 13-14.

      Counsel for Appellant cross-examined Officer Donohue as to his

expertise. Specifically, counsel first asked if Donohue had just claimed to be

an expert “in the weight of heroin,” to which Donohue answered that he had.

N.T. at 14.   Counsel then asked if Officer Donohue knew the difference

between a stationhouse weighing of heroin and a laboratory weighing.

Donohue replied that the initial stationhouse weighing keeps the heroin in

their baggies for safety reasons, whereas the crime laboratory, given its more

controlled environment, weighs the heroin after its removal from the baggies.

N.T. at 15.   Counsel asked Donohue again if he believed he was just as

qualified to discuss the weight of a drug as he was to discuss whether the drug

was possessed for personal use or with the intent to deliver.      Id.   Officer

Donohue answered that he was. Id.

      The court determined that Officer Donohue was qualified as an expert

“in illegal drugs, drug distribution, and drug investigation.”    N.T. at 16.

Counsel for Appellant, however, asked that the court also deem Donohue

expert on drug weight, given Donohue’s testimony on cross-examination. Id.

The Commonwealth asked for a sidebar discussion, which took place off the

record. After sidebar, the Court announced to the jury the following:

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      THE COURT:        Ladies and gentlemen, I have found Officer
      Donohue to be an expert witness in the field of illegal drugs, drug
      distribution and drug investigation. What that means is that he
      has certain specialized knowledge based on training and
      experience that allows him to offer opinions that may assist you
      in your deciding this case other than like lay witnesses that can’t
      offer opinions.

N.T. at 16. Counsel offered no objection to the court’s ruling.

      Appellant now contends that trial counsel ineffectively failed to object to

the court’s post-sidebar declaration of Officer Donohue expertise in the “field

of illegal drugs, drug distribution and drug investigation” without also

specifying an expertise in “drug weight.” He also claims trial counsel’s failure

to ensure a complete record of the sidebar discussion, and direct appeal

counsel’s failure to develop a Rule 1923 statement of the discussion,

constituted ineffective assistance.

      Initially, we find problematic Appellant’s failure to indicate how the

absence of the words “drug weight” from the court’s declaration of expert

qualifications mattered, where Officer Donohue testified that part of his

expertise in drug distributions and investigations included a knowledge of drug

weights involved in illegal drug sales. See N.T. at 13, supra. Indeed, the

Commonwealth itself asked Officer Donohue if his training and experience

made him familiar with, inter alia, “the manner of . . . sale of weights of

heroin[,]” and he answered in the affirmative. He repeated this assertion and

variants thereof several times during extensive cross-examination on the

point, without objection.



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      That the trial court elected to qualify Officer Donohue in accordance with

the wording of the Commonwealth’s offer—“an expert in the field of illegal

drugs, drug distribution and drug investigation”—would appear, therefore, to

be of no moment. The court did not explicitly exclude the subject of drug

weight from its declaration of qualifications, and, given the undisputed content

of Donohue’s testimony, the narrow subject of weight was implicitly

encompassed within the court’s broader declaration. We, therefore, disagree

with Appellant’s predicate claim to the extent it suggests that the court

precluded Officer Donohue from opining on the subject of drug weight and any

potential effect weight may have on Appellant’s case.

      Perhaps more important, however, is the inadequacy of Appellant’s

“arguable merit prong” argument. Specifically, the entirety of his argument

states, “it cannot be said that there is no merit to the allegation of

ineffectiveness for failing to ensure that the record was not silent as to the

off-the-record discussion about Officer Donohue.” Appellant’s brief, at 9.

      This conclusory statement does not even begin to explain what potential

underlying error with the court’s ruling could have become known if counsel

had objected or requested recordation of the sidebar discussion. Controlling

decisional law has rejected ineffectiveness claims as meritless under virtually

identical circumstances.

      In Commonwealth v. Blakeney, 108 A.3d 739 (Pa. 2014), petitioner

Blakeney filed a PCRA petition claiming that direct appeal counsel rendered

ineffective assistance by failing to challenge an unrecorded sidebar discussion,

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conducted over Blakeney’s pro se objection, between the trial court,

prosecutor, and standby counsel. In affirming the order denying PCRA relief,

our Supreme Court explained a petitioner carries a burden to specify a

potentially meritorious underlying claim necessitating the transcription of the

off-the-record sidebar discussion; merely asserting broadly that transcription

may have revealed some error is insufficient:

      [Blakeney] offers no specific argument as to what error might
      have been revealed had this sidebar been transcribed. This Court
      has recently explained the relevant legal principles applicable to
      claims of this nature:

            The U.S. Supreme Court has recognized that adequate
            and effective appellate review is impossible without a
            trial transcript or adequate substitute and has held
            that the States must provide trial records to indigent
            inmates. This Court has similarly concluded that a
            criminal defendant is entitled to “a full transcript or
            other equivalent picture of the trial proceedings” in
            order to engage in meaningful appellate review.
            However, in order to “establish entitlement to relief
            based on the incompleteness of the trial record,
            [Blakeney] must first make some potentially
            meritorious challenge which cannot be adequately
            reviewed due to the deficiency in the transcript.”

      Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108,
      1149 (2012) (citations omitted).

      In Sepulveda, on collateral appeal in a capital case, the appellant
      claimed that his rights to counsel, due process, and meaningful
      appellate review were denied because a number of sidebars had
      not been transcribed and counsel had not objected. Noting that
      the appellant had failed to specify any potentially meritorious
      claim that could not be adequately developed or reviewed because
      sidebars had not been transcribed, but instead took an absolutist
      position, unsupported by controlling authority, that a “full and
      accurate” record necessarily includes transcription of all sidebars


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      regardless of their substance, this Court dismissed the claim as
      meritless. Id. at 1150.

      Here, [Blakeney] makes a similar, broad-based claim without
      supporting argument as to why the off-the-record sidebars,
      including the single one to which he objected, should have been
      transcribed, other than his claimed entitlement to review every
      unrecorded discussion to determine whether some unspecified
      error might have occurred. [Blakeney] has failed to establish his
      underlying claim of incompleteness of the record. Thus, his claim
      of ineffectiveness of appellate counsel for failing to challenge the
      allegedly incomplete record on appeal lacks merit. Sepulveda,
      supra. The PCRA court properly dismissed this claim of counsel
      ineffectiveness without a hearing, as the claim failed to set forth
      a material fact requiring additional review.

Blakeney, 108 A.3d at 764–65.

      Like the petitioner in Blakeney, Appellant fails to articulate what

potentially meritorious underlying challenge escapes adequate review because

of prior counsels’ respective failures to make a record of the sidebar

discussion. Consequently, Appellant’s ineffectiveness claims against both trial

counsel and appellate counsel are without arguable merit. See Spotz, 84

A.3d at 311 (holding failure to satisfy any one prong defeats claim of

ineffective assistance of counsel).

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/19



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