J-S15010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RALPH JUSTIN CARTER                        :
                                               :
                       Appellant               :   No. 1105 WDA 2019

               Appeal from the PCRA Order Entered May 24, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0008812-2012


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

MEMORANDUM BY BENDER, P.J.E.:                             FILED MAY 27, 2020

        Appellant, Ralph Justin Carter, appeals pro se from the post-conviction

court’s May 24, 2019 order denying his timely-filed petition under the Post-

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

several claims of ineffective assistance of counsel (IAC). After careful review,

we vacate the court’s order denying Appellant’s petition, and remand for an

evidentiary hearing.

        This Court previously summarized the pertinent facts and procedural

history of Appellant’s case, as follows:

               [Parole] Agent [Darin] Reid was Appellant’s parole agent.
        N.T., 1/15/2013, at 4. On June 15, 2012, Appellant tested
        positive for marijuana and cocaine. [Id.] at 21, 25; N.T.,
        8/22/2013, at 7. Appellant was to have a drug evaluation. N.T.,


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     8/22/2013, at 7. He completed the initial evaluation, but failed to
     appear for the June 27, 2012 follow-up evaluation. Id. at 7.

            On July 2, 2012, a confidential informant advised Agent Reid
     that Appellant “was selling drugs, using drugs and in possession
     of a firearm.” N.T., 1/15/2013, at 5. The confidential informant
     was Jennifer Scott, who had a child with Appellant.5 N.T.,
     4/22/2013, at 5. She told Agent Reid she was concerned because
     her son stayed with Appellant, and Appellant was using marijuana
     and cocaine, was selling drugs, and she believed he had a gun in
     his residence. Id. at 5-6.
        5 Ms. Scott contacted Appellant’s counsel on the morning of
        the first suppression hearing and identified herself.
        Appellant then filed a motion to disclose the confidential
        information, which he withdrew. Agent Reid referred to Ms.
        Scott at the second hearing.

           Ms. Scott informed Agent Reid that Appellant had recent
     driving without a license tickets, which Agent Reid confirmed.
     N.T., 1/15/2013, at 37; N.T., 4/22/2013, at 6.         She also
     mentioned the drug use involved marijuana and cocaine for which
     Appellant had tested positive on June 15, 2013, a mere two-and-
     a-half weeks prior to receipt of the information from Ms. Scott.
     N.T., 4/22/2013, at 5-6. Further, Ms. Scott showed Agent Reid a
     video from a Facebook page where, during a cell phone call,
     Appellant slurred his speech and appeared intoxicated. N.T.,
     1/15/2013, at 6; N.T., 4/22/2013, at 7. During this telephone
     conversation, Appellant mentioned shooting raccoons. Id. at 6-
     7. As conditions of Appellant’s parole, he was not permitted to
     drink alcohol or use a firearm. Id. at 7.

           On July 2, 2012, Agent Reid discussed the information
     supplied by Ms. Scott and Appellant’s missed drug evaluation with
     his supervisor. N.T., 4/22/2013, at 8. They decided to detain
     Appellant and conduct a home inspection search of Appellant’s
     residence. Id. at 8-9.

            On July 3, 2012, Appellant arrived at the probation office
     with his girlfriend. N.T., 1/15/2013, at 8. The parole agents
     detained Appellant and conducted a home inspection search of his
     residence. After the agents discovered heroin in one of Appellant’s
     bedrooms, the home inspection search ceased and the agents
     notified the police.    Id. at 9-10.     The McKeesport Police
     Department applied for and obtained a search warrant for
     Appellant’s residence. Id. at 10. The police conducted a search,

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      which yielded drugs, drug paraphernalia, and a gun. [Id.] at 35;
      Police Criminal Complaint at 2.

             Appellant was arrested on July 3, 2012. On January 9,
      2013, Appellant filed a motion to suppress, which he amended on
      April 9, 2013. On January 15, 2013 and April 22, 2013, the trial
      court held suppression hearings. On August 13, 2013, the trial
      court denied the amended motion.

Commonwealth v. Carter, No. 503 WDA 2014, unpublished memorandum

at *2-4 (Pa. Super. filed Aug. 14, 2015) (one footnote omitted).

      On October 23, 2013, following a jury trial, Appellant was convicted of

persons not to possess a firearm, possessing a controlled substance with the

intent to deliver (PWID), possession of a controlled substance, and possessing

drug paraphernalia. On January 30, 2014, he was sentenced to an aggregate

term of 8 to 16 years’ incarceration. On direct appeal, we affirmed Appellant’s

convictions, but determined that his sentence was illegal because the court

had imposed an unconstitutional mandatory-minimum term of incarceration,

and also exceeded the statutory-maximum term for his PWID offense. See

id. at 14-15. Accordingly, we vacated Appellant’s judgment of sentence and

remanded for resentencing. Appellant was resentenced to an aggregate term

of incarceration of 7 years and two months to 14 years and four months.

      Appellant thereafter filed a timely PCRA petition.    He was appointed

counsel, who filed a petition to withdraw and ‘no-merit letter’ pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On November 21, 2017,

the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

Appellant’s petition without a hearing. Appellant did not file a response, and

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on December 15, 2017, the court issued an order dismissing his petition and

granting counsel’s petition to withdraw.

       Appellant filed a timely appeal, claiming, inter alia, that he had not

received the court’s Rule 907 notice. On January 11, 2019, this Court vacated

the order denying Appellant’s petition and remanded for the court to provide

him with an opportunity to respond to its notice of intent to dismiss his

petition.    See Commonwealth v. Carter, 66 WDA 2018, unpublished

memorandum at *5 (Pa. Super. filed Jan. 11, 2019). On remand, Appellant

filed a pro se amendment to his PCRA petition, which the PCRA court

apparently accepted. The court ordered the Commonwealth to file a response,

and the Commonwealth did so on April 15, 2019. On May 24, 2019, the court

again issued an order dismissing Appellant’s petition without a hearing.1

       Appellant filed a timely, pro se notice of appeal. The PCRA court ordered

him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. On July 18, 2019, the PCRA court filed a Rule 1925(a) opinion stating

that Appellant had not complied with its order to file a concise statement, and

concluding that his issues were waived. Appellant filed a pro se petition with
____________________________________________


1 Notably, the court again failed to provide Appellant with a Rule 907 notice of
its intent to dismiss his petition without a hearing, and an opportunity to
respond thereto. However, Appellant has not objected to the court’s error in
this regard, thus waiving that claim for our review. See Commonwealth v.
Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (“The failure to challenge the
absence of a Rule 907 notice constitutes waiver.”) (citation omitted).




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this Court, claiming that he had attempted to file a Rule 1925(b) statement,

but that it had been returned to him unfiled for some unknown reason. On

August 14, 2019, we issued a per curiam order remanding Appellant’s case

for him to file a concise statement, and for the court to issue an opinion.

Appellant complied with our order, and the court filed its Rule 1925(a) opinion

on October 16, 2019.

      We now review the following issues raised in Appellant’s pro se brief:

      I. Whether the PCRA [c]ourt erred in failing to find trial counsel
      ineffective in violation of Appellant’s right to due process and
      effective assistance under the Sixth and Fourteenth Amendment
      to the U.S. Constitution and Article I, Section 9 of the PA
      Constitution on the basis that trial counsel interfered with
      Appellant’s fundamental right to testify on one[’]s own behalf by
      giving specific advice so unreasonable as to vitiate a knowing and
      intelligent decision by Appellant not to testify on his own behalf?

      II. Whether the PCRA Court erred in failing to find trial counsel
      ineffective in violation of Appellant’s right to due process and
      effective assistance under the Sixth and Fourteenth Amendment
      to the U.S. Constitution and Article I, Section 9 of the PA
      Constitution on the basis that trial counsel failed to perform due
      diligence and conduct an independent, professionally reasonable
      investigation of the jail telephone recordings himself, prior to
      offering Appellant advice about their admissibility?

      III. Whether the PCRA Court erred in failing to find trial counsel
      ineffefctive [sic] in violation of Appellant’s right to due process and
      effective assistance under the Sixth and Fourteenth Amendment
      to the U.S. Constitution and Article I, Section 9 of the PA
      Constitution on the basis that trial counsel failed to call material
      witnesses, whom were present in the courtroom, and whom would
      [have] offered exculpatory testimony[] on Appellant’s behalf?

      IV. Whether the PCRA Court erred in failing to find trial counsel
      ineffective in violation of Appellant’s right to due process and
      effective assistance under the Sixth and Fourteenth Amendment
      to the U.S. Constitution and Article I, Section 9 of the PA
      Constitution on the basis that trial counsel failed to object, or act

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      in any way, to prevent and protect Appellant from the DA’s
      “ambush” tactics that were employed to keep Appellant and his
      two most material witnesses from testifying?

      V. Whether the PCRA Court erred and violated paragraph (1) of
      Pa.R.Crim.P. Rule 907 by summarily dismissing the petition
      without a hearing where there was a genuine issue of material fact
      in claims I-IV raised by Appellant?

Appellant’s Brief at 5-6.

      First, “[t]his Court’s standard of review from the grant or denial of post-

conviction   relief   is   limited   to   examining   whether   the   lower   court’s

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

legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).

Where, as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has stated that:

      [A] PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence
      resulted from the “[i]neffective 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.”             Generally, counsel’s
      performance is presumed to be constitutionally adequate, and
      counsel will only be deemed ineffective upon a sufficient showing
      by the petitioner. To obtain relief, a petitioner must demonstrate
      that counsel’s performance was deficient and that the deficiency
      prejudiced the petitioner. A petitioner establishes prejudice when
      he demonstrates “that there is a reasonable probability that, but
      for counsel’s unprofessional errors, the result of the proceeding
      would have been different.” … [A] properly pled claim of
      ineffectiveness posits that: (1) the underlying legal issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) actual prejudice befell the petitioner
      from counsel’s act or omission.




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Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

      Appellant’s issues are all interrelated, and stem from his trial counsel’s

response to the Commonwealth’s disclosure of an allegedly damaging

recording of a prison phone call made by Appellant (hereinafter “the

recording”). By way of background, after the Commonwealth rested its case

on the afternoon of the final day of trial, the court began to voir dire Appellant

about his right to testify on his own behalf. Initially, Appellant informed the

court that, after consulting with counsel, he had decided that he wanted to

testify. N.T. Trial, 10/21/13-10/23/13, at 147. The court then recessed for

approximately 20 minutes for Appellant to further discuss his decision with his

counsel. Id. at 149. When the trial resumed, Appellant was again asked by

the court if he wished to testify. Id. The following exchange took place:

      THE COURT: And what is [your] decision?

      [Appellant]: I will not be testifying.

      THE COURT: All right. And now you’ve changed your mind on that?
      You indicated to me at sidebar that you did wish to testify.

      [Appellant]: Yes, ma’am.

      THE COURT: And [trial counsel] has taken some time to discuss
      with you again your rights. You understand those rights?

      [Appellant]: Yes, ma’am.

      THE COURT: And he’s also discussed with you your trial strategy?
      You have been present in the courtroom, you’ve heard the other
      testimony, and you’ve considered his advice; is that true?

      [Trial Counsel]: You’ve considered my advice?



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     [Appellant]: I mean, with respect to the information that I just
     received --

     THE COURT: From [trial counsel]?

     [Appellant]: Yes, ma’am. I -- I mean,

     THE COURT: I guess, so, basically my guess here -- and correct
     me if I’m wrong -- is that they, the Commonwealth, had informed
     your attorney that if you do testify, they would request to impeach
     you with a prior record that would involve crimen falsi?

     [Trial Counsel]: Prior records involving crimen falsi. There’s also
     jail tapes from last night --

     THE COURT: From last night?

     [The Commonwealth]: Yes, Your Honor.

     [Trial Counsel]: -- that I think, even though I would
     vigorously object, I feel like they’d probably be admitted.

     THE COURT: Okay. So --

     [Appellant]: After discussing that, it’s my understanding, after
     discussing that, I mean, that -- that heavily influenced my
     decision, and I feel like it’s not in my best interest if these
     tapes are going to be introduced, if that’s the extent.

     THE COURT: Okay. So, has anybody forced, threatened, or
     coerced you with regard to your decision not to testify?

     [Appellant]: I mean, that is kind of like -- I mean, I want to
     testify, but it’s -- it’s to the point, I mean, it’s --

     THE COURT: Well, it’s your decision. You can testify.

     [Appellant]: Yes, ma’am.

     THE COURT: You understand what the risks of doing so are?

     [Appellant]: Yes, ma’am.

     THE COURT: And that you would be subject to cross-examination?

     [Appellant]: Yes, ma’am.

     THE COURT: That that cross-examination may place before the
     jury your criminal record or some part of it?


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     [Appellant]: Yes, ma’am.

     THE COURT: And [cross-examination] also may place before
     the jury taped phone conversations from the jail?

     [Appellant]: Yes, ma’am.

     THE COURT: And given that information --

     [Appellant]: I decided it’s not in my best interest to take the stand.

     THE COURT: And that’s your decision?

     [Appellant]: Yes, ma’am.

     THE COURT: And nobody has forced, threatened, or coerced you?

     [Appellant]: Oh, no, ma’am.

     THE COURT: So this is your decision, having considered all of this
     information and [trial counsel’s] advice, but it is your decision, not
     his?

     [Appellant]: Yes, ma’am.

Id. at 150-52 (emphasis added).

     Appellant now claims that during the recess, the prosecutor approached

the defense and

     [s]tated that he was in possession of [the] recording[] where
     Appellant could be heard instructing a defense witness how to
     testify, essentially encouraging that witness to fabricate their
     testimony and perjure themselves. [The prosecutor] further
     stated that Appellant made incriminating statements during [the
     recording] and [it] would play the [recording] for the jury if
     Appellant went forward with his decision to testify[,] or if he called
     any of the remaining witnesses that the defense had planned on
     calling, namely Melody Carter-Frye or Ujamaa T. Walker.
     Appellant vehemently denied engaging in such a call to trial
     counsel and further informed him that he had not spoken to either
     of the witnesses the day prior. Appellant requested to be
     permitted to listen to the recordings in question and asked trial
     counsel if he had reviewed the tapes himself[,] to which [counsel]
     replied[,] “There’s no time. I just learned of these recordings at
     the same time that you did. Why don’t you just not take the stand


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      and we won’t have to worry about these tapes.” Appellant again
      reiterated to counsel that he had not engaged in such a call and
      informed him that the sole call that he did make on the day prior
      was to a friend, who[] had no interest in the case, and there was
      absolutely nothing incriminating in the dialogue during that
      conversation, nor was there any request made for anyone to
      “perjure themselves” as purposed by [the prosecutor]. Appellant
      explained to counsel that he had vented to this friend his
      disapproval for the juror who[] had been selected to sit on his
      jury…. Appellant admitted to counsel that he had used some
      profanity and derogatory language when expressing himself, but
      he was certain that he did not say anything “incriminating” during
      the call[’s] duration. Counsel responded by telling Appellant[,]
      “Well [the prosecutor] is claiming that your [sic] on the tape
      saying these things and the [c]ourt will allow him to play the
      [recording] for the jury[,] I’m sure of it.”

Appellant’s Brief at 11-12.

      Appellant claims that counsel acted ineffectively in several ways in

responding to the Commonwealth’s disclosure of the recording. For instance,

he contends that counsel erred by not objecting to the fact that the

Commonwealth waited until the afternoon of his final day of trial to reveal its

possession of that evidence, rather than informing the defense immediately

when trial commenced that morning.

      Appellant also claims that counsel was ineffective for not asking to listen

to the recording to determine its potential admissibility before advising

Appellant not to testify because the recording could be admitted if he did.

Appellant maintains that counsel was wrong to presume the admissibility of

the recording because, if it contained what the Commonwealth claimed, then

the recording was not of Appellant. Id. at 25. Alternatively, if the recording

was of Appellant’s only phone conversation with his uninvolved friend, then



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that conversation would not have been admissible under Pa.R.E. 403 because

Appellant’s “making derogatory remarks about an impaneled juror [was] not

only irrelevant, but would [have] be[en] of the highest prejudicial value.” Id.

at 16. Under either scenario, Appellant insists that his counsel was ineffective

for not investigating the recording and determining its admissibility before

convincing Appellant to waive his right to testify, when Appellant clearly

wanted to testify before the Commonwealth revealed the recording.

      Appellant also contends that his trial counsel acted ineffectively because

he premised his decision not to call Melody Carter-Frye and Ujamaa T. Walker

on the presumed admissibility of the recording without investigating it further.

According to Appellant,

      [b]oth of these witnesses were present, ready and willing to testify
      on the first and second day of Appellant’s trial. Then came the
      11th hour, oral disclosure of the recording[] by the
      Commonwealth, … coupled with the threat to play the recording[]
      for the jury if counsel decided to call Appellant or either of these
      two witnesses to the stand to testify. Both of these witnesses,
      and also Appellant, made counsel aware of the fact that they had
      not spoken to Appellant on the previous day as [the prosecutor]
      purported. (See Appendix E and D, “Witness Affidavits”)[.]

Appellant’s Brief at 32-33. Appellant claims that counsel erroneously decided

not to call Carter-Frye or Walker to the stand because of the possibility that

the recording could be admitted during their cross-examinations. Appellant

insists that he was prejudiced by counsel’s decision because “both of these

witnesses woud[ have] offered exculpatory testimony had they been called to

testify.” Id. at 33 (citing Appendix D and E, “Witness Affidavits”).



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      Finally, Appellant argues that the PCRA court erred by not conducting

an evidentiary hearing to permit him to introduce evidence to further support

these ineffectiveness claims.

      We agree with Appellant that the PCRA court abused its discretion in

dismissing his petition without a hearing. First, in rejecting Appellant’s claim

that counsel was ineffective for advising him not to testify based on the

recording, the court relied on the fact that the prosecutor “informed [trial]

counsel that Appellant could be heard on the recordings instructing a defense

witness how to testify and encouraging that witness to fabricate testimony.”

PCRA Court Opinion (PCO), 10/15/19, at 3-4 (citing PCRA Counsel’s “No-Merit

Letter,” 11/17/17, at 11). The PCRA court reasoned that the recording would

have been admissible as an admission by a party-opponent, which is an

exception to the rule precluding hearsay evidence. See id. at 4 (citing Pa.R.E.

803(25)(a)). Thus, the court concluded that “trial counsel had a reasonable

basis in advising Appellant not to testify” because “the recorded statements

may have been deemed relevant to impeach his credibility.” Id.

      The PCRA court’s determination is not supported by the record.

Importantly, nothing in the record indicates what was actually on the

recording, or even what the prosecutor told trial counsel was on the recording.

Moreover, the court provided no analysis of Appellant’s claim that his counsel

acted ineffectively by simply accepting what the prosecutor said the recording

contained, rather than asking to listen to the recording before advising

Appellant about its potential admissibility if he took the stand.

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        We also find no support in the record for the court’s dismissal of

Appellant’s claim that counsel ineffectively failed to call Carter-Frye and/or

Walker based on the recording.          The court reasoned that “trial counsel

interviewed two of the witnesses, Appellant’s family members, each of whom

failed to corroborate Appellant’s version of events. Appellant’s sister[, Carter-

Frye,] had no direct knowledge of any relevant facts while his brother’s[,

Walker,] testimony would have contradicted … Appellant’s.”           Id. at 5.   In

support of this determination, the court cited prior PCRA counsel’s ‘no-merit

letter,’ in which PCRA counsel seemingly described a conversation he had with

trial counsel regarding trial counsel’s rationale for not calling these witnesses.

However, nothing in the record indicates the basis for trial counsel’s decision

not to call Carter-Frye and/or Walker to the stand. Accordingly, the PCRA

court    erred   by   relying   on   PCRA   counsel’s   apparently   off-the-record

conversation with trial counsel to conclude that trial counsel had a reasonable

basis for not presenting the testimony of the at-issue witnesses.

        Finally, the record does not support the PCRA court’s conclusion that

trial counsel acted properly in not objecting to the timeliness of the

Commonwealth’s disclosure of the evidence because the Commonwealth

informed counsel about the recording and its substance “as soon as trial

counsel arrived at court” on the morning of the final day of trial. Id. at 5.

The PCRA court cites no portion of the record to support this statement. As

Appellant points out, the recess during which he claims to have first been

informed about the recording took place from 2:14 p.m. until 2:35 p.m., not

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first thing in the morning as the PCRA court claims. See N.T. Trial at 149;

see also Appellant’s Brief at 40.

        Given this record, we agree with Appellant that an evidentiary hearing

is required.    Questions of material fact clearly exist regarding when the

Commonwealth first informed the defense about the recording; what the

Commonwealth told Appellant and his counsel about that evidence; what

counsel advised Appellant regarding the potential admissibility of the

recording; why counsel did not request to listen to the recording before

presuming its admissibility; and whether counsel’s decision not to call Carter-

Frye and Walker was premised on the possible admission of the recording.

Without further evidence on these questions, and credibility determinations

by the PCRA court, we cannot assess the reasonableness of trial counsel’s

actions after the Commonwealth revealed the existence of the recording.

        Accordingly, we vacate the court’s order dismissing Appellant’s petition.

We remand for the court to appoint Appellant counsel, and to conduct an

evidentiary hearing on his ineffectiveness claims. See Pa.R.Crim.P. 908(C)

(“The judge shall permit the defendant to appear in person at the hearing and

shall    provide   the   defendant    an   opportunity   to   have   counsel.”).

        Order vacated.    Case remanded for further proceedings.        Superior

Court’s Prothonotary shall return the record to the PCRA court. Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2020




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