J-S04033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 LANDARE JELMAIK HINES                   :
                                         :
                   Appellant             :   No. 1519 MDA 2018

           Appeal from the PCRA Order Entered August 14, 2018
    In the Court of Common Pleas of Centre County Criminal Division at
                      No(s): CP-14-CR-0000641-2014


BEFORE:    SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                     FILED MARCH 18, 2019

      Landare Jelmaik Hines (“Appellant”) files this appeal from the order of

the Court of Common Pleas of Centre County that dismissed his petition

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. After careful review, we affirm.

      This Court briefly summarized the factual background of the case on

direct appeal:

            Briefly, Appellant’s convictions stemmed from evidence that
      he and two women, Tiffany Ingram and Sarah Frank, conspired to
      sell heroin out of a residence in State College, Pennsylvania.
      During an investigation of these individuals in March of 2014,
      Sarah Frank delivered heroin to a confidential informant on two
      occasions, and to an undercover detective on a third. Based on
      Frank’s deliveries, as well as additional information acquired by
      police during the investigation, a search warrant was obtained for
      Ingram’s residence. On March 28, 2014, when the search warrant
      was executed, police discovered Appellant inside Ingram’s home.
      Appellant was taken into custody and searched, revealing a small
      amount of marijuana and a key to a safe where narcotics were

____________________________________
* Former Justice specially assigned to the Superior Court.
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     found [(62 bags of heroin)]. A search of Ingram’s residence
     revealed narcotics, drug paraphernalia, and evidence indicating
     that Appellant was residing there.

Commonwealth v. Hines, 1730 MDA 2015 (Pa.Super. 2016) (unpublished

memorandum).

     Appellant proceeded to a trial at which a jury convicted Appellant of

Manufacture, Delivery, or Possession of Drugs with the Intent to Deliver

(PWID), conspiracy to commit PWID, and various misdemeanor drug charges.

On May 21, 2015, the trial court imposed an aggregate sentence of 8 to 16

years’ incarceration. Appellant filed timely-post sentence motions, which were

subsequently denied.    On November 17, 2015, this Court affirmed the

judgment of sentence.

     On December 8, 2016, Appellant filed a pro se PCRA petition.

Thereafter, Appellant acquired counsel, who filed an amended PCRA petition

on May 15, 2017. On January 26, 2018 and March 22, 2018, the PCRA court

held hearings on Appellant’s petition, and on August 14, 2018, the PCRA court

entered an order denying Appellant’s amended petition. Appellant filed a

timely appeal and complied with the lower court’s direction to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

     Appellant raises the following issues for our review:

     1. Did the Court err and abuse its discretion when it found there
        was insufficient evidence here to find an agreement, promise,
        or implication of leniency was given to either Ingram, Frank, or
        Young? In doing so, did it fail to consider the prosecutor’s
        testimony, finding that each witness’[s] hope for consideration
        based on the value of their testimony came solely from their
        attorneys, as opposed to from the prosecutor? Did the Court


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          apply the incorrect legal standard, abuse its discretion when it
          found any implication of leniency [was] immaterial, and fail to
          consider the question of materiality cumulatively?

       2. Did the Court err and abuse its discretion, violating Appellant’s
          right to due process of law when it granted Young’s attorney[’]s
          motion to quash a subpoena?

       3. Did the Court err and abuse its discretion by denying
          Appellant’s claim of ineffective assistance of counsel for failing
          to cross-examine Young on his full criminal record in order to
          establish bias in favor of law enforcement? In doing so, did the
          Court apply the incorrect standard under Strickland v.
          Washington, 466 U.S. 668 (1984)?

       4. Did the Court err and abuse its discretion by denying
          Appellant’s claim of ineffective assistance of counsel related to
          the accomplice jury instructions? In doing so, did the Court
          apply the incorrect prejudice standard for a claim of
          ineffectiveness?

Appellant’s Brief, at 1-2 (quotations omitted).

       Our standard of review is as follows:

       When reviewing the denial of a PCRA petition, we must determine
       whether the PCRA court's order is supported by the record and
       free of legal error. Generally, we are bound by a PCRA court's
       credibility determinations. However, with regard to a court's legal
       conclusions, we apply a de novo standard.

Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted).1
____________________________________________


1 We note that any PCRA petition, “including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final.” 42
Pa.C.S.A. § 9545(b)(1). Appellant’s sentence became final on December 17,
2015 when the thirty-day appeal period expired for seeking review with our
Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3) (providing that a “judgment
becomes final at the conclusion of direct review, including discretionary review
in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review”); Pa.R.A.P.
1113(a). Thus, Appellant filed a timely petition on December 8, 2016.

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      To be eligible for PCRA relief, the petitioner must prove by a

preponderance of the evidence that his conviction or sentence resulted from

one of the enumerated circumstances found in 42 Pa.C.S.A. § 9543(a)(2).

Appellant invokes two of these circumstances: (1) a constitutional violation

and (2) ineffectiveness of counsel; Appellant must show that either

circumstance “so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. §

9543(a)(2)(i), (ii).

      Appellant first argues that the Commonwealth violated his due process

rights by failing to disclose exculpatory impeachment evidence pursuant to

Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In Brady, the Supreme Court of the United States held that “[w]here evidence

material to the guilt or punishment of the accused is withheld, irrespective of

the good or bad faith of the prosecutor, a violation of due process has

occurred.” Id. We are guided by the following principles:

             Under Brady and subsequent decisional law, a prosecutor
      has an obligation to disclose all exculpatory information material
      to the guilt or punishment of an accused, including evidence of an
      impeachment nature. See, e.g., Commonwealth v. Strong, 563
      Pa. 455, 761 A.2d 1167, 1171 & n. 5 (2000). To establish a Brady
      violation, an appellant must prove three elements:

               [1] the evidence [at issue] was favorable to the
         accused, either because it is exculpatory or because it
         impeaches; [2] the evidence was suppressed by the
         prosecution, either willfully or inadvertently; and [3]
         prejudice ensued.




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     Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d 848, 854
     (2005) (citation omitted).

           The evidence at issue must have been “material evidence
     that deprived the defendant of a fair trial.” Commonwealth v.
     Johnson, 572 Pa. 283, 815 A.2d 563, 573 (2002). “Favorable
     evidence is material, and constitutional error results from its
     suppression by the government, if there is a reasonable
     probability that, had the evidence been disclosed to the defense,
     the result of the proceeding would have been different. A
     reasonable probability is a probability sufficient to undermine
     confidence in the outcome.” Id. (quoting Kyles v. Whitley, 514
     U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

Commonwealth v. Spotz, 610 Pa. 17, 71-72, 18 A.3d 244, 275-76 (2011).

     With respect to the disclosure of impeachment evidence relevant to a

witness, our Supreme Court has provided the following:

     Exculpatory evidence favorable to the accused is not confined to
     evidence that reflects upon the culpability of the defendant.
     Exculpatory evidence also includes evidence of an impeachment
     nature that is material to the case against the accused. Napue
     v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217
     (1959). As the court in Napue sagely observed: “[t]he jury's
     estimate of the truthfulness and reliability of a given witness may
     well be determinative of guilt or innocence, and it is upon such
     subtle factors as the possible interest of the witness in testifying
     that a defendant's life or liberty may depend.” Id. at 269, 79
     S.Ct. 1173. Any implication, promise or understanding that the
     government would extend leniency in exchange for a witness'
     testimony is relevant to the witness' credibility. United States
     v. Giglio, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104
     (1972). As Brady and its progeny dictate, when the failure of
     the prosecution to produce material evidence raises a
     reasonable probability that the result of the trial would
     have been different if the evidence had been produced, due
     process has been violated and a new trial is warranted.
     United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87
     L.Ed.2d 481 (1985).

Strong, 563 Pa. at 462–63, 761 A.2d at 1171 (emphasis added).



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      Appellant argues that the PCRA court erred in dismissing his Brady

claim after the lower court found “there was no understanding, implication, or

promise from the Commonwealth that a testifying witness would get any

consideration in exchange for their testimony.” P.C.O. at 12. The PCRA court

had highlighted the statements of ADA Nathan Boob, the prosecutor at

Appellant’s trial, when he claimed at the PCRA hearing that he had made no

promises or inducements to the testifying witnesses and had told the

witnesses the following: “I am offering you nothing. You must decide what

you are going to do and if you think that will help you or not.”       Notes of

Testimony (N.T.), PCRA hearing 1/26/18, at 69.

      However, Appellant asserts that ADA Boob had implied the witnesses

would be treated favorably in exchange for their testimony against Appellant,

claiming that ADA Boob conveyed an “informal understanding” that he would

evaluate the witnesses’ testimony against Appellant when considering their

own cases in the future. Attorney Boob did not dispute that he may have

suggested to the witnesses that he would “consider the value of their

testimony” in forming their subsequent plea offers. N.T., 1/26/18, at 76-77.

      Nevertheless, we need not determine whether the prosecutor’s

statements constituted impeachment evidence that should have been

disclosed to the defense, as Appellant has not shown that the result of the

proceeding would have been different if the evidence had been produced.

Appellant’s trial counsel thoroughly attempted to impeach the credibility of the

Appellant’s co-defendants and his cellmate at trial, emphasizing that each

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witness had motive to testify favorably for the Commonwealth in order to

receive favorable treatment in their own criminal cases.      The PCRA court

summarized the substance of the witnesses’ testimony as follows:

            At trial, the Commonwealth called both Ingram and Frank
     to testify against [Appellant]. Both were facing charges for their
     involvement in the heroin distribution conspiracy.         Ingram
     testified Petitioner was in charge of the drug distribution
     operations, he was bringing in the drugs and was controlling the
     money. Frank testified that she was addicted to heroin and was
     selling for [Appellant] to afford to have heroin for personal use.
     Both testified that they were not promised or offered any sort of
     reduced sentence in exchange for their cooperation and testimony
     against [Appellant].

            The Commonwealth also called Richard Young (Young) to
     testify against [Appellant]. Young was incarcerated on unrelated
     charges and was [Appellant’s] cellmate. Young wrote a letter
     detailing what [Appellant] told him about his drug operations while
     the two were discussing their respective cases. Young testified
     consistent with that letter stating [Appellant] detailed how he
     would bring large amounts of drugs from the Harrisburg area to
     State College, weight and package them, store them in the safe
     under the mattress, and then give to people like Frank for
     distribution. Young also testified [Appellant] asked him to pass a
     note to Ingram asking her to take the blame for the whole
     operation, and that [Appellant] threatened Frank for cooperating.
     The note was introduced into evidence. Young testified that he
     was not offered nor did he hope for something in exchange for his
     testimony, but was motivated to testify because he heard
     [Appellant] physically abused Ingram’s three children and had
     threatened Frank.

            [Appellant] was represented by Attorney Ronald
     McGlaughlin (Attorney McGlaughlin) at trial. Attorney McGlaughlin
     questioned Young on eight (8) of his prior convictions for crim[e]n
     falsi charges, and implied Young stole a letter at issue in this case
     from [Appellant]. Attorney McGlaughlin also elicited that Young’s
     bail had been reduced and he was able to start serving time on
     his state sentence in exchange for his cooperation. Attorney
     McGlaughlin questioned Ingram on why she was testifying to

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      which she responded she was hoping for a lesser sentence, but
      she was not promised anything and was testifying because she
      didn’t want to take responsibility for something for which she
      wasn’t entirely responsible.     Attorney McGlaughlin likewise
      thoroughly questioned Frank about her motivations for testifying,
      to which she responded that she was not promised anything, but
      her bail was reduced after she agreed to cooperate but had been
      revoked prior to her testimony.

            In his closing, Attorney McGlaughlin highlighted Young’s
      lack of credibility, and his motivations for testifying including his
      reduced bail. Attorney McGlaughlin also highlighted that Young
      had pending charges and was obviously seeking a benefit in
      exchange for his testimony against [Appellant].             Attorney
      McGlaughlin highlighted Ingram’s lack of credibility in his closing,
      especially that she hoped to get a better plea deal in exchange for
      her testimony.        Attorney McGlaughlin highlighted Frank’s
      credibility problems and her hopes for a favorable plea deal in
      exchange for her testimony, and how her bail and been reduced
      in exchange for her cooperation.

             After both the Commonwealth and Attorney McGlaughlin
      finished their closing statements, the Court instructed the jury on
      the appropriate law to apply to the charges. All instructions were
      in accordance with Pennsylvania Law and consistent with the
      Pennsylvania Suggested Standard Criminal Jury Instructions. The
      Court properly instructed the jurors to consider the potential bias,
      prejudice, and other motivations a witness may have that would
      affect their testimony.

PCRA court opinion (P.C.O.), 8/14/18, at 1-4.

      Moreover, we emphasize that the prosecution presented overwhelming

physical evidence that connected Appellant to the drug operation conducted

from Ingram’s home. When executing a warrant to search Ingram’s home,

officers detained Appellant and found him in possession of a key to a safe

hidden under the bed in the master bedroom, which contained a large amount

of heroin. The officers discovered a large quantity of U.S. currency, additional

drugs, and men’s clothing in the master bedroom, along with evidence to

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suggest that Appellant was residing there. Thus, we cannot find that there is

a reasonable probability that the result of Appellant’s trial would be different

if the disputed evidence had been produced. Bagley, supra. As a result, we

find the PCRA court properly denied Appellant’s Brady claim.

       Second, Appellant argues that the PCRA court abused its discretion and

violated Appellant’s right to due process when it granted the motion of Young’s

attorney’s, Deborah Lux, to quash a subpoena for her to testify at Appellant’s

PCRA hearing. Although Atty. Lux argued that her testimony was protected

by attorney-client privilege, Appellant asserted that he only wished to question

her as to her prior conversations with the prosecution about the possibility of

favorable treatment for Young if he testified favorably at Appellant’s trial.

       Section 5916 of the Judicial Code governs confidential communications

to an attorney in criminal proceedings; it provides that “[i]n a criminal

proceeding counsel shall not be competent or permitted to testify to

confidential communications made to him by his client, nor shall the client be

compelled to disclose the same, unless in either case this privilege is waived

upon the trial by the client. 42 Pa.C.S.A. § 5916.

       Even if we were to assume that the trial court’s decision to quash Atty.

Lux’s subpoena was incorrect, it was harmless error.2       Although Appellant

____________________________________________


2 Although Appellant properly preserved and developed this issue for our
review, it was not addressed by the lower court or by the Commonwealth.
However, “[t]his Court may affirm the lower court for any reason, including
such reasons not considered by the lower court.” Commonwealth v.



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argues that Atty. Lux should have been allowed to testify as to her

communication with the prosecution with respect to a possible deal available

to her client, Young, if he testified favorably at Appellant’s trial, Young himself

testified that he was not offered nor did he hope for something in exchange

for his testimony, but was motivated to testify because he heard Appellant

physically abused Ingram’s three children and had threatened Frank.

       Moreover, we reiterate that Appellant’s trial counsel thoroughly cross-

examined Young as to his potential bias and motives for testifying. We again

emphasize that even without the testimony of Young and his counsel, the

prosecution presented overwhelming physical evidence linking Appellant to

the drug enterprise in which his co-defendants were involved.           Thus, we

conclude any potential error was harmless.

       Third, Appellant argues that trial counsel was ineffective in failing to

cross-examine Young on his full criminal record in order to establish his bias

in favor of law enforcement. In reviewing a claim of the ineffectiveness of

counsel, we are guided by the following principles:

       It is well-established that counsel is presumed to have provided
       effective representation unless the PCRA petitioner pleads and
       proves all of the following: (1) the underlying legal claim is of
       arguable merit; (2) counsel's action or inaction lacked any
       objectively reasonable basis designed to effectuate his client's
       interest; and (3) prejudice, to the effect that there was a
____________________________________________


Clemens, 66 A.3d 373, 381 n. 6 (Pa.Super. 2013) (citation omitted).
Additionally, we “may affirm a judgment based on harmless error even if such
an argument is not raised by the parties.” Commonwealth v. Allshouse,
614 Pa. 229, 261, 36 A.3d 163, 182 (2012).


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      reasonable probability of a different outcome if not for counsel's
      error. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
      973, 975–76 (1987); Strickland v. Washington, 466 U.S. 668,
      104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The PCRA court may
      deny an ineffectiveness claim if “the petitioner's evidence fails to
      meet a single one of these prongs.”           Commonwealth v.
      Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (2000)....
      Because courts must presume that counsel was effective, it is the
      petitioner's burden to prove otherwise. See Pierce, supra;
      Commonwealth v. Holloway, 559 Pa. 258, 739 A.2d 1039,
      1044 (1999).

Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa.Super. 2018)

(quoting Commonwealth v. Natividad, 595 Pa. 188, 207–208, 938 A.2d

310, 321 (2007)).

      There is no arguable merit to Appellant’s claim that his trial counsel

failed to adequately impeach Young’s credibility. Atty. McGlaughlin thoroughly

cross-examined Young with eight of his prior crimen falsi convictions. In light

of Young’s prior criminal record, Atty. McGlaughlin attempted to convince the

jury that Young obtained specific details about Appellant’s case by stealing a

letter from Appellant’s casefile in his jail cell. Atty. McGlaughlin also suggested

that Young had a motive to testify favorably for the prosecution as Young was

awaiting sentencing on additional charges.

      Moreover, Appellant cannot show that the outcome of the trial would

have been different had trial counsel impeached Young with his entire criminal

record. In addition to the fact that Atty. McGlaughlin did confront Young with

eight prior convictions of crimen falsi offenses to convince the jury to question

Young’s credibility, we again note that there was overwhelming physical

evidence linking Appellant to the drugs found in his co-defendant’s home. As


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a result, the PCRA court properly found that trial counsel was not ineffective

in failing to introduce additional charges to impeach Young’s credibility.

      Lastly, Appellant claims trial counsel was ineffective in failing to object

to the jury instruction on accomplice liability, which “allowed the jury to

conclude whether Ingram and Frank were accomplices, rather than instructing

[the jury] that they were accomplices as a matter of law.” Appellant’s Brief,

at 46. Appellant claims this instruction would have directed the jury to find

Ingram and Frank were “corrupt and polluted sources whose testimony should

be viewed with disfavor and accepted only with care and caution.” Appellant’s

Brief, at 47.

      In reviewing the adequacy of the trial court’s instruction, we consider

the following principles:

             In reviewing a challenge to a jury instruction, the entire
      charge is considered, not merely discrete portions thereof. The
      trial court is free to use its own expressions as long as the
      concepts at issue are clearly and accurately presented to the jury.
      It is the policy of this Court to give our trial courts latitude and
      discretion in phrasing instructions.

Commonwealth v. Johnson, 630 Pa. 493, 552, 107 A.3d 52, 87–88 (2014)

(citing Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1138

(2007)). “Only when the court commits an abuse of discretion or provides the

jury with an inaccurate statement of law is there reversible error.”

Commonwealth v. Rivera, 631 Pa. 67, 121–22, 108 A.3d 779, 812 (2014)

(citing Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 207 (1997)).




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      In a similar case, Commonwealth v. Jones, 542 Pa. 464, 518, 668

A.2d 491, 517 (1995), the Supreme Court held that it was not error for a trial

court to allow the jury to decide whether other individuals were the

defendant’s accomplices rather than giving a binding instruction that required

the jury to find the individuals were the defendant’s accomplices as a matter

of law.   As the trial court also instructed the jury that an accomplice’s

testimony must be given care and scrutiny before it can be considered

credible, the Supreme Court determined that the instruction was proper.

      Likewise, in this case, it was appropriate for the trial court to permit the

jury to decide whether Ingram and Frank were Appellant’s accomplices. The

trial court properly instructed the jury on the proper level of care and scrutiny

that the jury was required to give to an accomplice’s testimony. As the trial

court’s instruction accurately stated the law relevant to accomplice liability

and Appellant has not shown the trial court abused its discretion, there is no

arguable merit to this ineffectiveness claim.

      For the foregoing reasons, we affirm the PCRA court’s order dismissing

Appellant’s petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/18/2019




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