Com. v. Boggs (memorandum)

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J-S09008-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. LEWIS CLEVELAND BOGGS, Appellant No. 1903 EDA 2011 Appeal from the PCRA Order July 1, 2011 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0008265-2003 CP-46-CR-0008934-2003 BEFORE: STEVENS, P.J., BOWES, J., and FITZGERALD, J.* MEMORANDUM BY STEVENS, P.J. Filed: March 5, 2013 Lewis Boggs (hereinafter Appellant ) appeals from the Order entered in the Court of Common Pleas of Montgomery County on July 1, 2011, denying his petition filed pursuant to the Post Conviction Relief Act (PCRA).1 Upon our review of the record, we affirm. In our memorandum decision filed on December 16, 2008, this Court reiterated the trial court s statement of the relevant facts as follows: [O]n or about September 9, 2003, Trooper Bradley Getz, Pennsylvania State Police, Skippack Station, received information from his crime unit supervisor relating to the instant case. The information was conveyed by two Philadelphia Homicide Unit members. (N.T. Trial 8/01/06, at 32, 33). On ____________________________________________ * 1 Former Justice specially assigned to the Superior Court. 42 Pa.C.S.A. §§ 9541-9546. J-S09008-13 September 12, 2003, Trooper Getz met with the two Philadelphia homicide detectives who had been working with informant, Pamfilio Dacua ( Dacua or informant ), on an unsolved murder case since the middle of August, 2003. (N.T. Trial, 8/1/06, at 33). Trooper Getz learned from the homicide detectives that [Appellant] had approached Dacua, about having Francine Hansen ( Ms. Hansen[ ] or Franny ), his former girlfriend, murdered. (N.T. Trial, 8/1/06, at 34). Dacua and [Appellant] were inmates at SCI Graterford at the time. Trooper Getz met with Dacua at SCI Graterford on September 23, 2003, to conduct an interview. Dacua told Trooper Getz that [Appellant] had approached him about arranging to have Ms. Hansen killed, because she testified against him at a parole hearing. (N.T. Trial, 8/01/06, at 35. After verifying the information that Dacua had given to him, Trooper Getz immediately requested internal security at SCI Graterford to monitor [Appellant s] incoming and outgoing mail, and his phone calls. (N.T. Trial, 8/01/06, at 36). [Appellant] sent approximately (20) letters between September 28, 2003 and January 1, 2004. [Appellant s] letters were monitored by SCI Graterford by internal security and were subsequently turned over to Trooper Getz. (N.T. Trial 8/01/06, at 38, 39). In those letters, [Appellant] told his daughter he needed a picture of Ms. Hansen, and that it was all over for her. (N.T. Trial 8/01/06 at 42). [Appellant] sent a reminder to [h]is [m]other to get his clothes and not to forget to send the picture of Franny. (N.T. Trial 8/01/2006 at 44). To his brother Nate Boggs, [Appellant] wrote ¦I need you to take care of something for me. I need you to give my man Jose a quarter ounce to take care of something important for me. I need this done. I really need this. This is important. This is something serious I need done. (N.T. Trial 8/01/2006 at 44, 45). [Appellant] wrote to Trooper Santiago, an undercover Pennsylvania State Trooper, enclosing a picture of Ms. Hansen s daughter stating that she and Ms. Hansen were always together. If you see the daughter, you will see Franny. [Appellant] continued with the letters until the time of his arrest. On September 26, 2003, a recorded conversation took place at SCI Graterford between Dacua, wearing a consensual wire, and [Appellant]. After Dacua s conversation with [Appellant], Trooper Getz arranged for an undercover State Police Trooper to -2- J-S09008-13 act as a hit man and to meet with, and record a conversation with [Appellant]. Hit man , Jose Santiago, (Trooper Wilfredo Moreno) met with [Appellant] on September 30, 2003. (N.T. Trial, 8/2/06, at 39, 40). [Appellant] and Jose Santiago (Trooper Moreno) met in the visitor s area at SCI Graterford, after [Appellant] added Moreno to his visitor s list. [Appellant] and Moreno moved to a more secluded area of the room to engage in conversation about the hit on Francine Hansen. (N.T. Trial, 8/2/06 at 8). [Appellant] told Moreno that he wanted to kill Francine Hansen because she ratted him out on a prior occasion, and she had testified against him in court. (N.T. Trial, 8/02/06 at 8). [Appellant] said that Francine Hansen was a cancer and she needed to go . (N.T. Trial, 8/02/06 at 8). Moreno said, You want me to do it like straight up clean and out. Boom, boom, done? How much you hate the bitch? You want her to suffer a little bit ? [Appellant] said, No. Just kill the bitch . Fuck it . You know what I mean . Bang, that s it . You know what I mean ? Moreno said, Right . I got to feel it from you though, for real, for real. [Appellant] said, I want the bitch killed man . Come on man . She got to go man . Because if I get out man, if I get home, whoever the fuck she sees me with she gonna try to cause fucking problems so that s a problem for me . (N.T. Trial 8/02/06 at 43). Moreno told [Appellant] that he would need some form of payment to carry out this act. (N.T. trial 8/02/06 at 9) [Appellant] asked what Moreno s preference was as a method of payment. Moreno responded that a few thousand dollars would get things started, or several ounces of cocaine. [Appellant] indicated that his brother, Nate, could be the person to furnish that payment, but he would need to make the arrangements with his brother. Moreno asked [Appellant] to supply him with a picture of Ms. Hansen, to clarify who the intended target would be. (N.T. Trial 8/02/06 at 9). [Appellant] said that he would ask his daughter to retrieve a picture of Ms. Hansen and give the picture to his brother, Nate, so that Nate could pass it along to Moreno with the up front payment. (N.T. Trial 8/02/06 at 9). At that point, [Appellant] retrieved a pencil and paper from a corrections officer to explain and draw a diagram of where Ms. Hansen resided. He also wrote down her specific address and described her vehicle. Moreno said that at least five to ten times during his conversation with [Appellant] he gave Appellant every -3- J-S09008-13 opportunity to back out of the situation. Trooper Moreno testified that he was wearing a body wire during the conversation with [Appellant] and that the entire conversation was recorded. On the evening of September 30, 2003, [Appellant] made a call to his [m]other, Alice Boggs asking her to obtain a picture of Ms. Hansen. [Appellant] sent a letter dated September 30, 2003 to his daughter, Nigeria King, asking her to take care of securing a picture of Ms. Hansen. In the postscript, [Appellant] added: Once you send the picture of Franny, it s all over for her, so take care of this for your daddy. Love always, Daddy, One love us. Write me back with the picture . (N.T. Trial 8/01/06 at 40). Trooper Moreno, identifying himself as Jose Santiago placed several phone calls to [Appellant s] brother, Nate Boggs. Nate Boggs spoke with Moreno on two occasions. Nate Boggs acknowledged that he knew who Santiago was but he did not have whatever payment he was going to give him at the first conversation. Nate Boggs told Santiago to call him back. The second time Moreno called, Nate Boggs said he had nothing for him. Commonwealth v. Boggs, 3187 EDA 2006, unpublished memorandum at 1-4 (Pa. Super. filed December 16, 2008) (citing Trial Court Opinion, 2/1/08 at 2-6). Appellant was arrested on solicitation to commit murder charges on November 3, 2002, while an inmate at SCI Graterford. 2004, Appellant entered into a cooperation Montgomery County District Attorney. On October 22, agreement with the Appellant and his then counsel reviewed the agreement, and both initialized each page and signed the final page thereof. Appellant also provided a written statement wherein he admitted he had attempted to hire someone to kill Ms. Hansen, and once -4- J-S09008-13 again, he and his counsel reviewed the statement, initialed and signed it after each question, and signed the bottom of each page. On October 25, 2004, Appellant entered into an open guilty plea before the trial court. He later moved to withdraw the plea on May 18, 2005, averring that he was innocent of all charges and that his plea had not been knowing and voluntary. The trial court granted the motion on May 19, 2005. A four-day jury trial ensued after which Appellant was convicted of one count of criminal solicitation to commit murder, two counts of criminal use of a communication facility, and possession of a controlled substance (cocaine).2 At the outset of trial, the trial court informed the jury that Appellant and the Commonwealth would be entering into the following stipulation: So this is the stipulation, the agreement: That [Appellant], who has been identified here in court, was involved in a domestic altercation with Francine Hansen, his then girlfriend. And Francine Hansen called the police department regarding the altercation. When [Appellant] was arrested for that, he was found to have nine bags of cocaine in his pants pocket, which was approximately 2.06 grams of cocaine. And this happened in the Borough of Norristown in Montgomery County. That Francine Hansen testified at a hearing regarding this domestic altercation that I referred to. And as a result of that hearing, [Appellant] received a sentence of incarceration. N.T., 8/1/06, at 24-25. ____________________________________________ 2 18 Pa.C.S.A. §§902(a), 2502(a), 7512(a) and 35 Pa.C.S.A. § 780-113, respectively. -5- J-S09008-13 On October 12, 2006, Appellant was sentenced to an aggregate term of eleven (11) years to twenty-two (22) years in prison. Appellant filed a timely notice of appeal, and a panel of this Court affirmed his judgment of sentence on February 25, 2009. On September 4, 2009, Appellant filed a timely PCRA petition pro se wherein he alleged the ineffectiveness of trial and appellate counsel. On September 29, 2009, PCRA counsel was appointed, and he filed an Amended Petition for Post-Conviction Relief on November 27, 2009. A PCRA hearing was held on May 5, 2010, at which time both Appellant and trial counsel testified regarding the issue of severance and joinder. In its Order filed on July 1, 2011, the trial court denied Appellant s Amended Petition for PostConviction Relief. Appellant filed a timely notice of Appeal and a concise statement of matters complained of on appeal on July 19, 2011. In his brief, Appellant presents a single issue for our review: Did the [t]rial [c]ourt err by finding [t]rial [c]ounsel effective when [t]rial [c]ounsel failed to request severance of the charges against [Appellant] insofar as the the [sic] two charges were completely unrelated, one from the other? Brief for Appellant at 2. We begin our analysis with our well-settled standard of review: This Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795, 799 n. 2 (2005). The PCRA court's findings will not be -6- J-S09008-13 disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). To be entitled to relief on an ineffective assistance of counsel claim, a PCRA petitioner must plead and prove facts establishing that: (1) the underlying claim has arguable merit; (2) counsel's actions or omissions lacked a reasonable basis; and (3) counsel's actions resulted in prejudice. Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 678 (2009); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987). In the PCRA context, prejudice means that, absent counsel's actions or omissions, there is a reasonable probability that the outcome of the proceedings would have been different. Cox, 983 A.2d at 678. Counsel is presumed to be effective; the burden lies upon the petitioner to demonstrate otherwise. Id. Commonwealth v. Johnson, 51 A.3d 237, 248 (Pa. Super. 2012) (footnote omitted). In his brief, Appellant argues: [c]ounsel[ s] failing to request severance of the unrelated charges against [Appellant], clearly an issue of arguable merit under Criminal Rule 583, had no reasonable basis designed to promote, protect, or otherwise advance [Appellant s] interests. On trial for Solicitation (to commit murder) [Appellant] had introduced against him at trial the extremely prejudicial evidence of drug dealing which activity was, as stated, unrelated in time, place, factual circumstances and modus operandi to the charge of Solicitation. Brief for Appellant at 5. Appellant further reasons that if trial counsel had moved to sever the charges, and the trial court had granted that motion, the fact that Appellant had been charged with a violation of the Controlled -7- J-S09008-13 Substance, Drug, Device and Cosmetic Act, would not have been introduced. Id. at 7. Appellant ultimately admits that [i]t goes without saying that even if the charge of drug dealing had been severed out, [Appellant] may still have been convicted of Solicitation, but claims that trial counsel s failure to move to sever provided the Commonwealth an opportunity not to shoot a fish in a barrel but, rather, an opportunity to shoot a fish in a pickle jar. Id. at 8. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Thomas P. Rogers, we conclude Appellant s issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. (See Trial Court Opinion, filed 11/1/12, at 9-24) (finding trial counsel had a reasonable basis for proceeding in her chosen manner and Appellant failed to demonstrate that the filing of a motion to sever the drug charge from the solicitation charge before trial would have afforded him a greater likelihood of success at trial ). Accordingly, we affirm on the basis of the trial court s opinion. See Commonwealth v. Lauro, 819 A.2d 100, 108 (Pa. Super. 2003) (finding that where, based upon the evidence adduced at the PCRA hearing, the PCRA court concluded that trial counsel had a reasonable basis for not seeking a severance and having the two cases tried together and where this conclusion is supported by the record and free of legal error, we must affirm (citing Commonwealth v. Fricke, 378 A.2d -8- J-S09008-13 982, 984 (1977) (stating that a court's inquiry into counsel's effectiveness ceases once it determines he or she had some reasonable basis for his or her actions designed to effectuate the defendant's interests)).3 Order affirmed. ____________________________________________ 3 We further note that Appellant has failed to prove his claim has arguable merit, for in fact, the trial court has indicated that based upon the record, it would not have granted a motion to sever had trial counsel filed one. See Trial Court Opinion, 11/1/12, at n. 8. Moreover, by acknowledging that even had such a motion been granted Appellant may still have been convicted of Solicitation, Appellant has, in essence, failed to establish there was a reasonable probability that the outcome of the proceedings would have been different if the charges had been severed. See Johnson, supra. If it is clear that Appellant has not demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs [of the ineffectiveness test] have been met. Commonwealth v. Rainey, 593 Pa. 67, 96-97, 928 A.2d 215, 233 (2007) (citation omitted). -9-

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