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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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

MEMORANDUM BY STRASSBURGER, J.:                      FILED JUNE 25, 2015

     Christian Vance Joy (Appellee) filed a petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.    The PCRA court

granted the petition, which resulted in a new trial for Appellee.     The

Commonwealth of Pennsylvania (the Commonwealth) appeals the PCRA

court’s order.   In addition, Appellee has filed in this Court a document

entitled “Second Request for Application for Extension of Time to File

Supplemental Brief.” We affirm the PCRA court’s order and deny Appellee’s

application as moot.

     The background underlying this matter can be summarized as follows.

            On July 1, 2009, at roughly 2:40 p.m., [Officer Stephen
     Cover] was dispatched to an apartment complex in response to a
     reported domestic dispute wherein a male and female were
     fighting. When Officer [Cover] arrived at the address to which
     he had been dispatched, he was not accompanied by other
     officers. He saw two maintenance workers and, across a street,


* Retired Senior Judge assigned to the Superior Court.
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     [Appellee].   One of the maintenance workers pointed to
     [Appellee] and told Officer [Cover], “There he is[;] there’s the
     guy you need to speak to.”

            Officer [Cover] told [Appellee] words to the effect that the
     officer needed to talk to him. [Appellee] indicated that he was
     not going to talk to the police. Seeing that [Appellee] had one of
     his hands in one of his pockets, Officer [Cover] asked him to
     remove his hand therefrom. [Appellee] refused. Officer [Cover]
     then asked or told [Appellee] to “come here.” Officer [Cover]
     also advised [Appellee] that, if no one had been injured and no
     charges were to be filed, [Appellee] would be free to leave.

           Officer [Cover] then began walking toward [Appellee].
     [Appellee] walked away from him.           Officer [Cover] again
     indicated that he needed to speak to [Appellee] and told him to
     stop. At that point, [Appellee] ran. Officer [Cover] chased
     [Appellee] and saw that he continued to keep his hand in his
     pocket until [Appellee] and Officer [Cover] ran around the corner
     of a certain building. [Appellee] slowed his pace somewhat at
     that point, and Officer [Cover] eventually caught him.

            Upon catching [Appellee], Officer [Cover] took him to the
     ground. [Appellee] then struggled with Officer [Cover]. At that
     time, [Appellee’s] girlfriend arrived on the scene and began
     trying to go through [Appellee’s] pockets. The female refused
     Officer [Cover’s] commands to back away and, when [Officer
     David Shifflett] arrived, the female also refused Officer
     [Shifflett’s] similar commands. Eventually, Officer [Shifflett]
     arrested the female.

           Officer [Cover] arrested [Appellee] and, during a search
     incident to that arrest, Officer [Cover] found roughly $250.00 in
     [Appellee’s] pockets. After placing [Appellee] in a police car,
     Officer [Cover] retraced the path of his foot pursuit and, while
     doing so, found a plastic bag. The bag, which did not appear to
     be weathered in any way, was on a bush, somewhat “nestled
     down” into the bush, but essentially on top of it. Officer [Cover]
     would later testify that, while chasing [Appellee], Officer [Cover]
     did not see anyone other than [Appellee] in the path or area of
     the chase.

           In the bag were numerous clear vials. Liquid was in some
     of those vials; vegetable matter was in others. Laboratory tests


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     would later show that the liquid was PCP and that the vegetable
     matter contained PCP.

           After retrieving the bag, Officer [Cover] walked past the
     police car in which [Appellee] sat.      As the officer did so,
     [Appellee] tried to kick out the windows of the vehicle. Officer
     [Cover] later transported [Appellee] to a police station. While
     [Appellee] was in a holding cell, police administered him his
     rights under Miranda v. Arizona, 384 U.S. 436 (1966). He
     agreed to speak with police and asked with what he was being
     charged. When Officer [Cover] indicated [Appellee] was being
     charged with possession with intent to deliver (“PWID”)
     marijuana based on Officer [Cover’s] belief that the vegetable
     matter was marijuana, [Appellee] replied to the effect that he
     could not believe the police thought “that was weed.” An expert
     witness for the Commonwealth would later testify that PCP is
     typically coated onto mint leaves to be smoked.

            [Appellee] eventually faced charges of PWID PCP,
     possessing drug paraphernalia (“paraphernalia”), resisting arrest
     (“RA”) and disorderly conduct (“DC”). Prior to trial, he moved to
     suppress the evidence found by Officer [Cover] on the aforesaid
     bush. The court denied that motion; [Appellee] proceeded to
     trial. He was convicted of RA and DC, but the jury could not
     reach a verdict on PWID and paraphernalia. The court declared
     a mistrial on those charges.

           Thereafter, [Appellee] was retried on PWID and
     paraphernalia, and he was convicted of those offenses.
     [Appellee] was then sentenced on all four convictions. He filed a
     post-sentence motion for a new trial, essentially contending in
     that motion that the PWID verdict was against the weight of the
     evidence. The court denied [Appellee’s] post-sentence motion….

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

memorandum at 1-4) (citations omitted).

     This Court affirmed Appellee’s judgment of sentence. Id. On May 31,

2013, our Supreme Court denied Appellee’s petition for allowance of appeal.




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Commonwealth v. Joy, 68 A.3d 907 (Pa. 2013). Appellee timely filed a

PCRA petition, and the PCRA court appointed counsel to represent Appellee.

      PCRA counsel initially sought to withdraw his representation of

Appellee pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

However, counsel later withdrew his request to withdraw and filed an

amended PCRA petition.

      In the amended petition, counsel stated that Appellee’s wife provided

counsel with bank statements.    The bank statements indicate that, on the

day he was arrested, Appellee had withdrawn approximately $250 from his

bank account. According to the amended PCRA petition, during his trial, the

Commonwealth utilized the $250 found on Appellee on the day of his arrest

as evidence to connect Appellee to the drugs the police recovered in a bush.

Appellee averred that trial counsel was ineffective for failing to present the

jury with the bank statements, as those statements would have countered

the Commonwealth’s theory regarding the $250.

      The PCRA court held a hearing on May 13, 2014.         The PCRA court

subsequently issued an order, which in effect granted Appellee’s PCRA

petition and ordered that Appellee receive a new trial. The Commonwealth

timely filed a notice of appeal. The PCRA court directed the Commonwealth

to comply with Pa.R.A.P. 1925(b), and the Commonwealth filed a 1925(b)




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statement. The PCRA court eventually authored an opinion in response to

that statement.1

     In its supplemental brief to this Court, the Commonwealth asks us to

consider the following question: “Whether the PCRA court erred in finding

Appellee’s trial counsel was ineffective for failing to introduce a bank

statement that was irrelevant to [] Appellee’s defense at trial when []

Appellee’s defense at trial involved denying possession of the controlled

substance that he was convicted of possessing?” Commonwealth’s Brief at 4

(unnecessary capitalization omitted).

     Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s rulings are supported by the evidence of

record and free of legal error.     Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010).       “To establish ineffectiveness of counsel, a

PCRA petitioner must show the underlying claim has arguable merit,

counsel’s actions lacked any reasonable basis, and counsel’s actions

prejudiced the petitioner. Prejudice means that, absent counsel’s conduct,

there is a reasonable probability the outcome of the proceedings would have

been different.”   Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa.

Super. 2013) (citations omitted).



1
  Because the PCRA court did not file its opinion until January 9, 2015, this
Court remanded the matter to allow the Commonwealth to file a
supplemental brief addressing the rationale employed by the PCRA court in
its opinion.


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     The PCRA court accurately summarized the evidence submitted at the

PCRA hearing as follows:

            At the PCRA Hearing, [PCRA] counsel called [trial counsel
     to testify]. [Trial counsel] is currently employed at the Dauphin
     County Public Defender’s Office and represented [Appellee] for
     the second jury trial. [Trial counsel] testified that he had a
     chance to review the transcripts from the first jury trial and that
     he noticed the bank records were objected to. [Trial counsel]
     did have an opportunity to talk to [Appellee] prior to [his]
     second trial. [Appellee] did inform [trial counsel] about the bank
     statement.     [Trial counsel] testified that “in retrospect … 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.” When asked if [trial counsel] could have
     changed what he had done and obtained the records, [trial
     counsel] stated that “yea he probably would.” [Trial counsel]
     testified that the defense presented at trial was that it was not
     [Appellee]. [Trial counsel] testified that [Appellee] asked him
     for the records at some point and that [Appellee] told him to
     “show where this came from.” [Trial counsel] responded that it’s
     not important.

           [PCRA counsel] proceeded to call [Appellee] to the stand.
     [Appellee] indicated that there were two trials in this case and
     the first trial was a hung jury. [Appellee] testified that he
     informed [previous counsel] at the first trial of the bank record
     and that [Appellee] actually gave [previous counsel] a copy of it.
     [Appellee] testified that he believed that the jury actually heard
     the objection and that it helped to cause a hung jury as to [the
     drug-related charges]. [Appellee] testified that he was upset
     that [trial counsel] did not have the bank records because
     [Appellee] had just gone through a jury trial in which he knew
     that he needed to make the bank statements authentic.

            On cross-examination at the PCRA Hearing, the
     Commonwealth introduced the bank statement.            [Appellee]
     testified that his [statement] looked a little different but the
     amounts were the same. The bank statements were shown that
     the [account] was overdrawn. They also showed that there was
     a deposit of $227.05 from the National Recovery Agency where
     [Appellee] was employed. [Appellee] testified that he had the
     cash on him because he has a wife and six kids and that he had


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      bills to pay. [Appellee] further stated that he withdrew the
      money [out of the MAC machine] five minutes [] before he was
      arrested. [Appellee] testified that he believed [trial counsel] had
      his bank statement and that he was going to turn it over to
      PCRA counsel.     [Appellee] further testified that there was
      nothing found inside his pockets that was indicative of selling
      drugs.

             On direct examination at the PCRA Hearing, the
      Commonwealth called [the district attorney who represented the
      Commonwealth at both trials] to testify. [He] testified that the
      money was not that important. [The district attorney] further
      testified that what was important to the Commonwealth’s case
      was proving [Appellee’s] possession of those items by looking at
      all the surrounding circumstances of the case.           On cross-
      examination, [he] stated that he gave a hypothetical to [the
      Commonwealth’s expert at trial] which included the $250. [The
      district attorney] was asked if “the last thing the jury heard from
      [the Commonwealth’s expert] was $250 in his pockets broken
      down into twenty-dollar bills, that’s directly related to drug
      dealing?” [His] response was “if that’s what the last thing was
      he said in there. I mean, that would have been the last part
      during my direct, because then [the expert] was on cross-
      examination.”

PCRA Court Opinion, 1/9/2015, at 3-5 (footnotes omitted).

      The PCRA court offered the following analysis in support of its decision

to grant Appellee a new trial:

             [Trial counsel] represented [Appellee] at the second jury
      trial. [Trial counsel], at the PCRA hearing, testified that in
      retrospect he would have tried to get the bank statements in.
      [Trial counsel] had a copy of the December, 2011 Jury Trial
      transcripts and could have seen that the bank statements were
      attempted to be introduced and were objected to. Furthermore,
      [Appellee] attempted to tell [trial counsel] that the jury heard
      the objection in the first trial and that the reason he thought he
      had a hung jury on two counts was because the jury heard the
      objection. [Appellee] further testified that he was aware of why
      the bank statement was objected to. Due to the bank statement
      not being properly authenticated, it did not come in the first
      trial. Furthermore, [t]rial counsel] testified that when looking


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      back he would have, probably, obtained the records. [He] tries
      to make the argument that he did not use the bank statement
      “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.” But because
      it was [not] a smaller amount of [drugs], [trial counsel] testified
      that he was not trying to say that [Appellee] possessed it for
      personal use. Although [trial counsel] makes these arguments,
      the amount of cash that was found in [Appellee’s] pockets would
      have directly related to the amount of money that [Appellee]
      had withdrawn from an ATM merely minutes prior to being
      arrested.      Furthermore, no other items were found in
      [Appellee’s] pockets that could tie him to the drugs.            By
      producing the bank statement, there would have been a direct
      reason as to why [Appellee] had the cash in his pocket.

             Finally, the result would have been different absent such
      error. There were two jury trials. In the first jury trial, there as
      a hung jury as to [the drug-related charges]. Only in the second
      trial, was [Appellee] found guilty of these counts. [Appellee]
      testified that, in his opinion, the reason the first jury reached a
      hung decision on [the drug-related charges] was due to the fact
      that they heard the objection as to the bank statement which
      would have indicated where [Appellee] received the cash that
      was found on his person.

             Because the underlying claim has arguable merit, there
      was no reasonable basis as to why [trial counsel] in the second
      trial did not attempt to introduce the bank statements and the
      fact that [trial counsel] testified that he should have attempted
      to introduce the bank statements, and that there is a reasonable
      probability that the result of the proceeding would have been
      different absent such error as indicated by the first trial resulting
      in a hung jury at to [the drug-related charges], [Appellee]
      satisfied the ineffective assistance [standard].

Id. at 6-7.

      The Commonwealth summarizes its argument on appeal as follows:

            The Commonwealth contends that the PCRA court’s
      decision is not supported by the record as the record indicates
      that [trial counsel’s] strategic basis implemented at trial was
      reasonable in light of the defense theory he pursued which was


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      that the 15 grams of PCP did not belong to [Appellee]. At the
      evidentiary hearing, [trial counsel] testified that the bank record
      only explained the source of the money that was recovered from
      [Appellee], which would have only been effective in a defense of
      simple possession of the PCP found on [Appellee’s] person. As
      [trial counsel] testified that the quantity of the PCP at issue in
      this case made an argument of personal use impractical, the
      Commonwealth contends that [trial counsel] had a reasonable
      basis for not introducing the bank record as it bore no relevance
      to [Appellee’s] defense theory. Further, [on direct appeal, this
      Court] did not even address the money in [Appellee’s] pocket
      when it concluded the weight of the evidence supported Joy’s
      conviction of PWID in this matter and the bank record further
      presented [Appellee’s] suspicious accounting practices.

Commonwealth Brief at 17. We disagree with the Commonwealth.

      At trial, the Commonwealth was required to prove that Appellee

possessed with the intent to deliver the drugs that Officer Cover discovered

in a bush and that he possessed the related drug paraphernalia.             The

Commonwealth was unable to obtain direct evidence which established that

Appellee possessed these items. Consequently, the Commonwealth had to

prove that Appellee possessed the items through the presentation of

circumstantial evidence.

      A key piece of circumstantial evidence that the Commonwealth

introduced at trial to establish that Appellee possessed the drugs and

paraphernalia was the $250 that Office Cover removed from Appellee’s

pocket.    The Commonwealth highlighted that the $250 consisted of all

twenty dollar bills, save for one ten dollar bill. N.T., 12/5/2011-12/7/2011,

at 35.    Later, the Commonwealth’s expert witness, through the use of a

hypothetical, essentially testified that the circumstances of this case led him


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to conclude that Appellee is a drug dealer.          Id. at 87-91.    One of those

circumstances was that Appellee had cash on his person, the majority of

which was made up of twenty dollar bills.

       In short, 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.    It was not, as the Commonwealth would like us to

believe, unimportant.     We therefore conclude there is arguable merit to

Appellee’s claim that trial counsel was ineffective for failing to present bank

records showing Appellee withdrew $250 from a bank on the day he was

arrested for these offenses. Such evidence would have strongly challenged

the Commonwealth’s theory that the $250 was related to the sale of drugs

and thus may have undermined the suggestion that Appellee possessed the

drugs and paraphernalia.

       In terms of counsel’s basis for not presenting the bank statements as

evidence, counsel testified at the PCRA hearing that his trial strategy was to

present a defense of “it wasn’t him.”         N.T., 5/13/2014, at 6.       However,

evidence of the source of money found in Appellee’s pocket is entirely

consistent with an “it-wasn’t-him” defense. Evidence that Appellee did not

have    drug-sale-related    money     on      his    person       undermines   the

Commonwealth’s theory that the money suggests Appellee possessed the

drugs and paraphernalia.     For these reasons, we conclude that Appellee



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proved trial counsel’s stated strategy for not presenting the evidence of the

source of the money is unreasonable.

     Lastly, we also conclude Appellee proved the prejudice prong of the

ineffective-assistance-of-counsel standard.   Stated succinctly, there is a

reasonable probability that, but for counsel’s failure to introduce the bank

records as evidence at trial, the outcome of Appellee’s trial would have been

different. For these reasons, we affirm the PCRA court’s order.

     Order affirmed. Second Request for Application for Extension of Time

to File Supplemental Brief denied.

     Judge Bowes joins the memorandum.

     Judge Allen files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/25/2015




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