J-S04019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellant

                     v.

CHRISTIAN VANCE JOY,

                          Appellee                   No. 860 MDA 2014


             Appeal from the PCRA Order entered May 16, 2014,
              in the Court of Common Pleas of Dauphin County,
            Criminal Division, at No(s): CP-22-CR-0005188-2009


BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

DISSENTING MEMORANDUM BY ALLEN, J.:                    FILED JUNE 25, 2015

      Respectfully, I dissent.   Concluding that Appellee had established all

prongs of the tripartite ineffectiveness claim, the Majority affirms the PCRA

court’s granting Appellee a new trial.

      My review of the record reveals that, even if Appellee’s claim is of

arguable merit, the PCRA court improperly assessed trial counsel’s strategy,

and improperly relied upon Appellee’s speculation to establish the requisite

prejudice. I would reverse the PCRA court’s order and deny Appellee post-

conviction relief.

             Our standard of review is well established:

            We review an order granting a petition under the PCRA
         in the light most favorable to the prevailing party at the
         PCRA level. Commonwealth v. Sam, 597 Pa. 523, 952



*Retired Senior Judge assigned to the Superior Court.
J-S04019-15


         A.2d 564, 573 (2008). This review is limited to the
         findings of the PCRA court and the evidence of record. Id.
         We will not disturb a PCRA court’s ruling if it is supported
         by evidence of record and is free of legal error. Id.
         “Further, we afford great deference to the factual findings
         of the PCRA court and will not disturb those findings unless
         they have no support in the record.” Commonwealth v.
         Carter, 21 A.3d 680, 681-82 (Pa. Super. 2011).

Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en

banc).

     While we pay great deference to the findings of the PCRA court, “its

legal determinations are subject to our plenary review.” Commonwealth v.

Johnson, 966 A.2d 523, 532 (Pa. 2009).        Furthermore, to be entitled to

relief under the PCRA, the petitioner must plead and prove by a

preponderance of the evidence that the conviction or sentence arose from

one or more of the errors enumerated in section 9543(a)(2) of the PCRA.

One such error involves the ineffectiveness of counsel.

     To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish 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.

Johnson, 966 A.2d at 523. “Generally, counsel’s performance is presumed

to be constitutionally adequate, and counsel will only be deemed ineffective

upon a sufficient showing by the petitioner.” Id. This requires the petitioner

to demonstrate that:    (1) the underlying claim is of arguable merit; (2)

counsel had no reasonable strategic basis for his or her action or inaction;


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and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533.

A finding of "prejudice" requires an appellant to show "that there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different." Id.

     Further, as our Supreme Court has reiterated, “we only inquire

whether counsel had any reasonable basis for his actions, not if counsel

pursued the best available option.” Commonwealth v. Philistin, 53 A.3d

1, 10 (Pa. 2012) (citation omitted). Stated differently, counsel will not be

deemed ineffective if any reasonable basis exists for counsel's actions.

Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa. 1994).              Even if

counsel had no reasonable basis for the course of conduct pursued, an

appellant is not entitled to relief if he fails to demonstrate the requisite

prejudice which is necessary under Pennsylvania's ineffectiveness standard.

Id. at 232.   When it is clear that an appellant has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

     Initially, the Majority concludes that “the money recovered from

Appellee’s person provided an important piece of circumstantial evidence

relied upon by the Commonwealth in its attempt to prove that Appellee

possessed the drugs and paraphernalia.” Majority at 10.     The PCRA court

made no such conclusion, and I do not read the Commonwealth’s



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presentation of evidence to emphasize the amount of money found on

Appellee’s person.   Indeed, this Court cited the following summary by the

trial court when affirming the trial court’s rejection of Appellee’s challenge to

the weight of the evidence:

              In its opinion explaining why it denied [Appellee’s] post-
         sentence       motion,    the   trial  court   discussed    the
         circumstantial evidence supporting the inference that it
         was [Appellee] who possessed the bag and placed it on the
         bush. In so doing, the court noted that [Appellee] kept his
         hand in his pocket until he ran around the building, that
         Officer [Cover] saw no other people in the path of the
         pursuit, that the contraband in question was found
         unweathered on a bush in that path, and that [Appellee’s]
         girlfriend tried to access [Appellee’s] pockets during his
         arrest. Noting the evidence also indicated [Appellee] had
         little or no opportunity to see the plastic bag and/or other
         contraband after Officer [Cover] located that evidence on
         the bush, the court observed [Appellee] nonetheless
         remarked that he could not believe the police thought the
         contraband included marijuana.

            After discussing the foregoing evidence, the trial court
         reasoned there was no basis to disturb the jury’s verdict.
         As part of its analysis, the court acknowledged that police
         found no drugs on [Appellee’s] person and, further,
         recognized that there was no direct evidence showing
         [Appellee] possessed the bag and its contents.
         Nevertheless, the court determined those arguable
         weaknesses in the Commonwealth’s case were not enough
         to render the jury’s verdict shocking to the conscience
         given the overall proof offered at trial.

Commonwealth v. Joy, 62 A.3d 464 (Pa. Super. 2012), unpublished

memorandum at 5-6.         As noted above, the rationale did not include

consideration of the $250 found in Appellee’s pocket following his arrest.




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      Even conceding Appellee’s claim is of arguable merit, I cannot agree

with the Majority’s conclusion that “Appellee proved trial counsel’s strategy

for not presenting the evidence of the source of the money is unreasonable.”

Majority at 10-11.

      Trial counsel’s entire testimony regarding his trial strategy is as

follows:

             I didn’t get the bank paperwork. I believe [Appellee]
           had 200 some dollars in his pocket and the bank records
           would have shown that he withdrew that.

              The reason I didn’t get them was my strategy on the
           case was arguing it wasn’t him. To me, the money issue
           was more if you were arguing possession with intent to
           deliver versus simple possession.

              But in this case, it was, like, 15 grams of PCP which
           would have been, like, a hundred ounces of cocaine. And I
           thought trying to argue simple possession was not doable.

              In retrospect - - actually after talking to [PCRA counsel]
           on the phone when you called me about the PCRA is when
           I realized maybe it would have helped a jury say, hey, he
           wasn’t a drug dealer because he had a reason to have the
           $250 not from the sale of drugs.

N.T., 5/13/14, at 6.

      On     cross-examination,    the    following   exchange    between   the

Commonwealth and trial counsel expanded on counsel’s chosen trial

strategy:

           Q. Okay. Now, going to the trial where you represented
           [Appellee], do you remember [him] informing you of the
           existence of the bank records?

           A. Yes.


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       Q. Do you remember when during the representation?

       A. It was definitely before trial, how much before I’m not
       exactly sure of. My recollection of this is it was at least a
       two-day trial.

           With them being at Metro Bank, I should have - - if I
       thought they were that important at the time I would have
       been able to send one of our investigators across the
       street to Metro to obtain them.

       Q. Why didn’t you think they were important enough?

       A. Because at the time I was arguing simple possession
       versus - - or I wasn’t arguing simple possession versus
       possession with intent to deliver, I was just arguing it
       wasn’t him.

            If this would have been, like, $2,500 in his pocket,
       because I believe [the Commonwealth’s expert] testified
       this was like $1,500 worth of PCP, at that point, maybe it
       makes a difference.

          But it was a smaller amount of cash and I wasn’t trying
       to say that he possessed [the drugs] for personal use. I
       wasn’t as worried about the cash in his pocket.

       Q. Did [Appellee] understand the defense that you were
       presenting?

       A. That I don’t know.

       Q. In your discussions with him, did he express any
       disagreement with regard to the defense you were going
       to present?

       A. Not that I recall. But he asked for the records at some
       point. He said, hey, let’s show where this came from. I
       said, hey, it’s not that important. I’m arguing [the drugs]
       weren’t yours. The money in your pocket is not that
       important.

         If I recall correctly, this was done at counsel table. It
       wasn’t a long, drawn out discussion over it.

       Q. That’s when he- -



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         A. Well, I think our discussion - - he might have said
         something before that but our discussion about it I believe
         was, like, while we were picking the jury early on in the
         proceedings.

         Q. You explained the defenses you were going to present?

         A. Well, I just said why I didn’t have the bank records
         when he asked about them.

         Q. And what did [Appellee] say to you?

         A. I don’t recall his exact words.

         Q. Okay. In your opinion, would a defense of personal
         use of 15 grams of PCP, would have been a viable
         defense?

         A. No.

         Q. Could you have presented that defense and a defense
         of the drugs weren’t mine?

         A. They cut into each other so I tend not to do that. I
         mean, one’s saying, look, they’re not his; but if you
         believe it’s his, it’s not the felony, it’s the misdemeanor.
         You’re kind of talking out of both sides of your mouth.

         Q. Okay. And in your opinion which was the best defense
         in this case?

         A. Wasn’t him.

         Q. That - - the defense it wasn’t him?

         A. Correct.

N.T., 5/13/14, at 8-10.

      Trial counsel's strategic decisions cannot be the subject of a finding of

ineffectiveness if the decision to follow a particular course of action was

reasonably based and was not the result of sloth or ignorance of available

alternatives.   Commonwealth v. Collins, 545 A.2d 882, 886 (Pa. 1988)



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(cited with approval by Commonwealth v. Hall, 701 A.2d 190, 204 (Pa.

1997)).     Counsel's approach must be "so unreasonable that no competent

lawyer would have chosen it."      Commonwealth v. Ervin, 766 A.2d 859,

862-63 (Pa. Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d

233, 234 (Pa. 1981). Our Supreme Court has defined “reasonableness” as

follows:

               Our inquiry ceases and counsel’s assistance is deemed
           constitutionally effective once we are able to conclude that
           the particular course chosen by counsel had some
           reasonable basis designed to effectuate his client’s
           interests. The test is not whether other alternatives
           were more reasonable, employing a hindsight
           evaluation of the record. Although weigh the alternatives
           we must, the balance tips in favor of a finding of effective
           assistance as soon as it is determined that trial counsel’s
           decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (emphasis

added) (quoting Com. ex rel. Washington v. Maroney, 235 A.2d 349,

352-53 (Pa. 1967)).      See also Commonwealth v. Clark, 626 A.2d 154,

157 (Pa. 1993) (explaining that a defendant asserting ineffectiveness based

upon trial strategy must demonstrate that the “alternatives not chosen

offered a potential for success substantially greater than the tactics

utilized”).   Here, introducing evidence of the source of the money that was

found in Appellee’s pocket (along with an I.D. card and ATM card, see N.T.,

12/5/11, at 34) would not be inconsistent with the defense that the bag of

drugs found on the bush did not belong to Appellee. Although trial counsel

knew of the bank statement’s existence, he chose not to present it.

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      Even though trial counsel testified that in hindsight he probably should

have introduced the records, this is not a basis for relief. Pierce, supra.

Thus, the PCRA court’s reliance upon trial counsel’s hindsight analysis in

determining the reasonableness of his basis for not introducing the records

was improper.    Likewise, a PCRA petitioner is not entitled to relief simply

because a chosen strategy is unsuccessful. Commonwealth v. Buksa, 655

A.2d 576, 582 (Pa. Super. 1995).

      Finally, even if trial counsel’s chosen trial strategy was unreasonable,

Ervin, supra, I agree with the Commonwealth that Appellee did not

establish prejudice. In affirming the PCRA court’s finding of prejudice, the

Majority does no more than “succinctly” restate the ineffectiveness test for

prejudice.   Majority at 11.   The PCRA court credited Appellee’s testimony

that he believed the jury in his first trial heard the Commonwealth’s

objection to the admission of the bank statement, and that this led to their

inability to reach a verdict on the drug-related charges. We cannot disturb

this determination. See Commonwealth v. Battle, 883 A.2d 641, 648 (Pa.

Super. 2005) (explaining that credibility determinations are solely within the

province of the PCRA court). However, Appellee’s opinion is no more than

speculation, and cannot establish the requisite prejudice to support an

ineffectiveness claim. This is especially true, given the additional evidence

that Appellee’s girlfriend was going through his pockets while Officer Cover

was trying to handcuff him, and Appellee’s own statement of disbelief that


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the police officers believed the substance found within the bag was

marijuana. See N.T., 5/18-19/11, at 23-65. For all of these reasons, the

PCRA court erred in concluding that Appellee proved actual prejudice. See,

e.g., Commonwealth v. Spotz, 84 A.2d 294, 315-16 (explaining that PCRA

petitioner must prove actual prejudice; “we disagree with the Superior Court

that the challenged references [to petitioner’s post arrest silence] made in

the prosecutor’s cross-examination of [the petitioner] went to the ‘heart’ of

his self-defense claim such that he was ‘actually prejudiced’”).

      Because my review of the record does not support the PCRA court’s

determination that trial counsel’s trial strategy was unreasonable, and/or

that Appellee established prejudice, I would reverse its order vacating

Appellee’s judgment of sentence and granting him a new trial.        I would

remand this matter to the trial court for re-imposition of Appellee’s judgment

of sentence.




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