J-S21033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DAMON COVINGTON

                            Appellant               No. 1908 EDA 2013


                 Appeal from the PCRA Order February 27, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003053-2010


BEFORE: SHOGAN, J., ALLEN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED SEPTEMBER 26, 2014

       Damon Covington appeals nunc pro tunc from the order entered on

February 27, 2013, in the Philadelphia Court of Common Pleas dismissing his
                                                                             1



Covington seeks relief from the judgment of sentence of a term five to ten



simple assault and multiple violations of the Uniform Firearms Act.        On

appeal, Covington raises the following three issues:        (1) counsel was

ineffective for failing to object to bad character evidence admitted against

Covington at trial; (2) counsel was ineffective for agreeing to a constructive

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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possession charge to the jury; and (3) the PCRA court erred in failing to hold

an evidentiary hearing. Based on the following, we affirm.

        The underlying convictions stem from a December 31, 2009, incident,

in which Covington struck his landlord in the eye with a gun. On October 29,

2010, a jury convicted Covington of simple assault, persons not to possess

firearms, carrying a firearm on a public street, and firearms not be carried

without a license.2 On January 24, 2011, the trial court sentenced him to a

                                                               s not to possess



probation for the remaining crimes. Covington filed a post-sentence motion,

which was denied on February 1, 2011.            He then filed a notice of appeal

from the judgment of sentence.3 On December 23, 2011, this Court entered

an order, indicating that the direct appeal had been discontinued and



        On March 7, 2012, Covington filed a counseled PCRA petition.         The

Commonwealth filed a motion to dismiss the PCRA petition on October 5,

2012.    The PCRA court entered a Pennsylvania Rule of Criminal Procedure

____________________________________________


2
  18 Pa.C.S. §§ 2701(a), 6105(a)(1), 6108, and 6106(a)(1), respectively.
The jury found Covington not guilty of aggravated assault and possession of
an instrument of crime. A charge of recklessly endangering another person,
18 Pa.C.S. § 2705, was nolle prossed.
3
   During this time, appointed counsel was relieved and Covington retained
private counsel.



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907 notice of intent to dismiss without a hearing on January 17, 2013.

Counsel for Covington filed two responses to the Rule 907 notice on

February 8, 2013, and February 15, 2013. By order of the court entered on



       Subsequently, on May 24, 2013, Covington filed a motion to reinstate

PCRA appellate rights nunc pro tunc.4            On June 11, 2013, the PCRA court
                                                      5
                                                          This appeal followed.6

____________________________________________


4
   In the motion, counsel indicated that he had informed Covington that he
would file a notice of appeal from the dismissal of his PCRA petition but due
t                                                                         See
                                                  Nunc Pro Tunc, 5/24/2013,
at 2.
5
   We note that, generally, any request for post-conviction collateral relief
will be treated as a PCRA petition, regardless of how an appellant captions
the motion. See 42 Pa.C.S. § 9542; Commonwealth v. Kubis, 808 A.2d
196, 199 (Pa. Super. 2002), appeal denied, 813 A.2d 839 (Pa. 2002).
requests for reinstatement of appellate rights, including PCRA appellate

Commonwealth v. Fairiror, 809 A.2d 396, 397 (Pa. Super. 2002)
(emphasis added), appeal denied, 827 A.2d 429 (Pa. 2003). Under the
                                                     within one year of the
date the judgment becomes final unless the petition alleges, and the
petitioner proves, that an exception to the time for filing the petition, set

Commonwealth v. Harris, 972 A.2d 1196, 1200 (Pa. Super. 2009)
(footnote omitted), appeal denied, 982 A.2d 1227 (Pa. 2009). Moreover,
the exceptions must be pled within 60 days of the date the claim could have
been presented. See 42 Pa.C.S. § 9545(b)(2).                       udgment
of sentence became final after this Court entered an order, on December 23,
2011, indicating that the direct appeal had been discontinued and withdrawn

a PCRA petition was one year thereafter on December 23, 2012. The
present petition, filed on May 24, 2013, therefore, was patently untimely.
(Footnote Continued Next Page)


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      Covington raises the following issues in his brief:

      1.
           impermissible bad character             evidence     admitted   against
           [Covington] at trial?

      2. Was trial counsel ineffective for agreeing to a constructive
         possession charge to the jury, where the Commonwealth did
         not even argue constructive possession at trial and such
         instruction served only to widen the scope of behavior from

           firearms in question?

      3. Should the PCRA court have granted an evidentiary hearing
         where disputed issues of fact went unresolved; namely,
         whether trial counsel had any reasonable, strategic basis for
         his actions?




supported     by    evidence       of   record     and


                       _______________________
(Footnote Continued)

Nevertheless,      Covington     pled    and     proved   the   Section
                                                     9545(b)(1)(ii)
                                                       e of appeal.
See Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (vacating the


failure to file a brief in the initial PCRA appeal).
6
   On June 12, 2013, counsel filed a motion to withdraw. The PCRA court
granted that motion on June 24, 2013, and appointed new PCRA counsel.

On July 11, 2013, the PCRA court ordered Covington to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Covington filed a concise statement on July 24, 2013. The PCRA court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 16, 2013.



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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted), appeal denied, 54 A.3d 347 (Pa. 2012).



ineffectiveness of counsel, our review is well-settled:

      We begin our analysis of ineffectiveness claims with the
      presumption that counsel is effective.      To prevail on his
      ineffectiveness claims, Appellant must plead and prove, by a
      preponderance of the evidence, three elements: (1) the
      underlying legal claim has arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) Appellant

      regard to the second, i.e.
      conclude that cou

      offered a potential for success substantially greater than the
                                                             i.e., the
      prejudice prong, Appellant must show that there is a reasonable
      probability that the outcome of the proceedings would have been


Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal

                                       sh any prong of the test will defeat an

                         Commonwealth v. Keaton, 45 A.3d 1050, 1061

(Pa. 2012) (citations omitted).



for failing to object to prior bad acts evidence. Covington states that during



from [Wilkins] that [Covington] was a problem tenant because of his



Brief at 11, citing N.T., 10/27/2010, at 47. Covington argues that the failure


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to object to this testimony constituted ineffective assistance of counsel.

Moreover, Covington argues the PCRA court erred in finding that the res

gestae exception applied to t

properly invoked when the bad acts are part of the same transaction



citing Commonwealth v. Brown, 52 A.3d 320, 332 (Pa. Super. 2012),

appeal denied, 62 A.3d 377 (Pa. 2013). Covington states his claim has

arguable merit because:

     [his] alleged prior bad behavior vis a vis his use of alcohol,
     disobeying rules, and disrespectfulness were not part of the
     same transaction that involved the crime he was charged with.

     related to a time far remote from when the instant crime was
     alleged to have happened.

Id. (citation omitted). Further, he contends there was no reasonable basis

for co




not to have committed the crimes he was cha                Id. at 13.

     We are guided by the following principles:

         Rulings on the admissibility of evidence are within the
         discretion of the trial judge, and such rulings form no basis
         for a grant of appellate relief absent an abuse of
         discretion. While it is true that evidence of prior crimes
         and bad acts is generally inadmissible if offered for the

         character or criminal propensity, the same evidence may
         be admissible where relevant for another purpose.
         Examples of other such relevant purposes include showing

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        the absence of mistake or accident, a common scheme or
        design, or to establish identity. ... [T]he evidence may
        also be admitted where the acts were part of a chain or
        sequence of events that formed the history of the case and
        were part of its natural development.         Of course, in
        addition to the relevance requirement, any ruling on the
        admissibility of evidence is subject to the probative value /
        prejudicial effect balancing that attends all evidentiary
        rulings.

     Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419
     (Pa. 2008) (internal citations omitted).


     associated exceptions noted in Powell, supra, are set forth in
     Pa.R.E. 404(b).    The res gestae
     exception, however, does not spring from Pa.R.E. 404. It is a:


        crimes may be relevant and admissible ... where such
        evidence was part of the chain or sequence of events
        which became part of the history of the case and formed
        part of the natural development of the facts.
        Commonwealth v. Murphy, 346 Pa.Super. 438, 499
        A.2d 1080, 1082 (1985), quoting Commonwealth v.
        Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932).
        This special circumstance, sometimes referred to as the
         res gestae                              cription against

                          i.e., evidence of other criminal acts is

        proving its immediate context of happenings near in
        time and place

     Commonwealth v. Lark, 518 Pa. 290, 303, 543 A.2d 491, 497
     (1988) (emphasis added).

Commonwealth v. Green, 76 A.3d 575, 583-584 (Pa. Super. 2013)

(footnote omitted), appeal denied, 87 A.3d 318 (Pa. 2014).

                                                   stimony is as follows:


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     Q. After you agreed to take Mr. Covington into your home, to
     rent a room to Mr. Covington, how long after the conversation
     with his mother did he come into your house?

     A. I believe it was immediately.



     Q. And at that time, sir, when he had moved into your home,
     tell the ladies and gentlemen of the jury how were the first days.

     A. First days [were] okay.

     Q. What happened next?

     A. Then as we went on and on and on, it -- he started getting
     more controlling, thinking that he can do what he want to do,
     and disrespectful.


     of the jury what you consider his activities to be that were
     disrespectful to you.

     A. Not obeying my rules, drinking, just being disrespectful.
     Like, you know, no one can tell him nothing but his mother.

     Q. Did he bring people into your home?

     A. Yeah.

     Q. Who?

     A. His girlfriends.

     Q. Were there problems when he brought them into your home?

     [Defense counsel]: Objection, leading.

     THE COURT: Sustained.

     [The Commonwealth]. What, if anything, happened when he
     brought the girlfriends into your home? What, if anything, had
     happened?


                                   -8-
J-S21033-14


     A. I would have to get involved in his relationships because he
     would like to think he owned the girls. Then one of --

     [Defense counsel]: Objection.

     THE COURT: Sustained.

     [The Commonwealth]: Did you actually see him do anything in
     terms of you said you had to break

     [Defense counsel]: Objection, Judge.

     THE COURT: Wait.

                                 the relevance of this, Judge?



     [The Commonwealth]: I think it becomes relevant.



     THE COURT:     Just ask him a question without suggesting an
     answer.

     [The Commonwealth]: I will.


     took place December 31st?

     THE COURT: Some background might be appropriate.

     [The Commonwealth]: And I think some background --

     THE COURT: I think some background is appropriate, not much.


                                                             -- is that
     what you mean by disrespectful?

     A. Yeah.

     Q. At some point, sir, did you make up your mind that this could
     no longer continue?

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J-S21033-14



     A. Yes.

     Q. Did you address it with Mr. Covington?

     A. Yes.

     Q. What, if anything, did you tell him at that point?


     appreciate it and at a certain time that he would have to leave
     and find himself a place to go.

N.T., 10/27/2010, at 46-50.

     The PCRA court found counsel was not ineffective for failing to object

to the prior bad acts testimony based on the following:

           [Covington] claims his trial counsel failed to object to [the



     to object to permissible prior act evidence explaining the
     deterioration of the informal landlord-tenant relationship
     between the complainant and [Covington] preceding the assault.
     See N.T. 10/27/10 at 49 (court expressing appropriateness of
     limited background information).

           Prior to the assault, [Covington] rented a room in the
                            Id. at 47. On the evening in question,
     [Covington] made an unapproved visit seeking to retrieve some
     residual personal belongings. Id. at 52. The assault followed

     intoxicated, entry into his residence.     Id.

     events leading to the dissolution of their living arrangement and
     subsequent assault. Specifically, the complainant indicated that
     [Covington] did not obey his rules, drank, and was disrespectful.
     Id. at 47.



     aggressive   demeanor     immediately    preceding      the   assault.

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      Exploring the unsavory dynamic of their relationship formed the
      natural development of the facts and therefore did not constitute
      impermissible character evidence.     See Commonwealth v.
      Dillon, 925 A.2d 131, 137 (Pa. 2007) (citing res gestae
      exception to Rule 404(b) which allows admission of other crimes
      evidence when relevant to furnish the context or complete story
      of events surrounding a crime).

PCRA Court Opinion, 8/16/2013, at 3-4.

                                                              tatements about

Covington being disobedient, drunk, and disrespectful were not offered for



                                                      natural development of



See Lark, 543 A.2d at 497. Likewise, while Wilkins did not detail specific

dates, and discussed the landlord-tenant relationship as lasting a year, his

testimony demonstrated                        ext of happenings near in time

and place                      Id.    As such, this evidence was relevant,

probative, and formed an integral part of the case history.

                                          Brown, supra, is misplaced as that

case is distinguishable from the present matter. There, the defendant was

charged with violating 35 P.S. § 780-113(a)(14), relating to his prescription

of drugs to six patients between June 1, 2002 and June 30, 2004 while he

was a licensed practicing physician. Brown, 52 A.3d at 321. The trial court

permitted the Commonwealth to introduce evidence of bad acts occurring in

and before 1984 under the common law res gestae exception; specifically,


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his medical degree and license. Id. at 322. On appeal, a panel of this Court

                                                         explained at length

Pennsylvania Supreme Court precedence with respect to the exception. As

pointed out by Covington in this matter, the Brown Court then set forth that



formed the history of the case and were part of its natural development

                       res gestae

admissible.   Id. at 326.    The Court also outlined the balancing test for

determining whether the probative value of the res gestae history evidence

outweighs its prejudicial impact, stating:


                dence, the similarities between the crimes, the time
      lapse between crimes, the need for the other crimes evidence,

      degree to which the evidence probably will rouse the jury to
      overmastering h

Id. Applying the test, the Brown Court determined:

      [T]he alleged bad acts are so far removed from the charged
      crimes that it strains credulity to consider them as a natural part
      of the history, chain, or sequence of events in the case when
      considering the exception in light of its history. The bad acts do

      are they part of the same transaction or interwoven in such a
      manner that failing to elucidate the jury to the information would
      render the case unintelligible. The prior alleged crimes are
      dissimilar in kind and purpose to the drug crimes and have no
      direct connection to the events that transpired in 2002 through
      2004.

Id. at 332.

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       Here, distinguishable from the facts in Brown and contrary to



Wilkins, were not so far removed in time from the crimes charged to

separate them from the natural history of the present case.7 Moreover, as

stated above, the bad acts shed light on the relationship between Covington

and the victim, and supplemented the sequence of events. Accordingly, we



PCRA court properly found counsel was not ineffective for failing to object to

the prior bad acts evidence.

       Next, Covington argues that counsel was ineffective for failing to

object to the jury charge on constructive possession.          Specifically, he

                                                                       ington]

actually possessed a firearm and used it to strike Wilkins in the face.

Though firearms were recovered from the vehicle that [Covington] drove on

the night in question, the Commonwealth never argued or implied that [he]

constructively    possessed      th



possess firearms at all, as evinced by its request for the court to re-define

                  Id.    He asserts counsel was ineffective in agreeing to the
____________________________________________


7
  Furthermore, we note that counsel did object, and the court sustained the
objection, when the Commonwealth tried to introduce evidence related to

relevant to the matter at hand. N.T., 10/27/2010, at 48.



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J-S21033-14




Commonwealth had not argued constructive possession in its case-in-chief

or during closing argument, and (2) the doctrine enlarges the scope of

possession to encompass defendants who are not arrested for actual

possession    of    contraband   and   therefore,   counsel     expanded    the

circumstances from which the jury could infer his guilt.

      By way of background, Wilkins testified that after Covington hit him in

the eye with a hard object, Wilkins observed Covington wrap something up

in a white towel and put the item in the trunk of a white Acura.           N.T.,

10/27/2010, at 60, 64. Wilkins also stated that he saw Covington put a gun

in the trunk. Id. Covington was eventually pulled over in the white Acura,

with a passenger, and arrested. Police searched the car and seized a black

.9 mm Taurus PT111 and a black and brown .32 caliber Duetsche Worker.

Id. at 195. During deliberations, the jury asked the court to repeat the key

eleme                                                                       PIC

offense. Additionally, the jury inquired what constitutes simple assault and

whether possession of an instrument of crime suggests it was used in a

crime.   N.T., 10/28/2010, at 79.      The court indicated that as to the



                                                              Id. at 82.   Both

counsel agreed the court could instruct the jury on constructive possession.

Id. at 82-83.      The court then reread all of the elements for the crimes


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charged. Id. at 85-91. With respect to the PIC charge, the court stated, in

pertinent part:

             First, that the defendant possessed a certain item; that is,
      a firearm. For a person to possess an item, he or she must have
      the power to control and the intent to control that item.

            And second, that the item was an instrument of crime. An
      instrument of crime is, A, anything specially made for criminal
      use; or B, anything specially adapted for criminal use; or C,
      anything that is used for criminal purposes and possessed by the
      defendant at the time of the alleged offense under circumstances
      not manifestly appropriate for lawful uses it may have.



           The Commonwealth has charged here that the crime the
      defendant intended to commit with the instrument alleged was
      aggravated assault.

            Possession defined. Possession means first what it means
      in ordinary usage; someone is knowingly holding, carrying, or
      otherwise directly controlling the possession of an item. A
      person can be guilty of possessing an item even when he or she
      is not holding it, touching it, or in same area as the item. That
      type of possession is what the law calls constructive possession.

            For there to be constructive possession, it must be proved
      beyond a reasonable doubt that the individual had both the
      intent to control the item and the power to control the item.

            In determining whether or not the defendant had
      possession of a firearm, you should consider evidence of all facts
      and circumstances that may shed light on the question of
      whether the defendant had the intent to control and the power
      to control it.

Id. at 89-91.



assistance of counsel claim, we must apply the standard for ineffective


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              Commonwealth v. Battle, 883 A.2d 641, 645 (Pa. Super.

2005), abrogated on other grounds by, Commonwealth v. Jette, 23 A.3d

1032 (Pa. 2011). Moreover, we note the following:


                                                  Commonwealth v.
     Johnson, 572 Pa. 283, 313, 815 A.2d 563, 580 (2002). The
     trial judge has broad discretion to choose the wording by which
     he explains legal concepts to the jury. Id. We therefore do not

                                                             the charge
     sufficiently and accurately apprises a lay jury of the law it must
                                           Commonwealth v. Jones,
     2004 PA Super 331, 858 A.2d 1198, 1200 (Pa. Super. 2004)
     (quoting Commonwealth v. Thompson, 543 Pa. 634, 639, 674
     A.2d 217, 218-19 (1996)).

Battle, 883 A.2d at 645.

     As a prefatory matter, we note the court specifically charged the jury

on constructive possession as to the aggravated assault and PIC charges.

The jury acquitted Covington of those offenses.      Therefore, he has not

demonstrated he suffered any prejudice a

object to the constructive possession jury instruction. See Spotz, supra.

     Moreover, even if one could infer that the constructive possession

instruction was imputed to the remaining charges, the PCRA court properly

found the following:

     Because the jury was properly instructed on the concept of
     constructive possession, counsel was not ineffective for declining
     to raise a meritless objection.


     guidance regarding the term
     incorporated a portion of Standard Jury Instruction 16.02(b)A

                                   - 16 -
J-S21033-14


      which, in part, provides a definition of possessing an item. The

      found applicable in light of the testimony elicited at trial.
      Specifically, evidence that [Covington] stashed a firearm into the
      trunk of the vehicle in which he was a passenger supported a
      determination that his possession of the firearm became
      constructive at that point in time. T

      applicability.


      jury instruction, the court was inclined to provide a broad
      definition of possession in
      See


      ineffectiveness in failing to object to a definition that was
      appropriate under the circumstances.

PCRA Court Opinion, 8/16/2013, at 5-6 (footnote omitted).         As the PCRA

court correctly disposed of this issue, we conclude there is no arguable merit

                        ineffective assistance of counsel based on a failure to

object to the jury instruction. Accordingly, his second issue fails.



granting an evidentiary hearing pursuant to Pennsylvania Rule of Criminal

Procedure 909(B) because genuine issues of material fact exist as to his



following:

      An evidentiary hearing is not mandatory for all claims raised in a
      PCRA petition and [an a]ppellant may not avoid the requirement
      of setting forth evidence sufficient to establish an issue of
                        See also Pa.R.Crim.P. 909(B) (providing that
      the PCRA court need only grant a hearing on those issues for
      which a petitioner raises an issue of material fact).


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Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008), cert. denied, 558

U.S. 1082 (2009).       Because Covington failed to raise genuine issues of

material fact with respect his ineffective assistance of counsel claims, he was

not entitled to a hearing on these issues and the PCRA court committed no

error in dismissing the claim. Therefore, his final argument fails.

      For the foregoing reasons, we conclude the court did not err in denying



      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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