Com. v. Sanchez (memorandum)

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J-S60031-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. CANDELARIO SANCHEZ Appellant No. 340 MDA 2012 Appeal from the Order Dated January 13, 2012 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0001621-2006 BEFORE: SHOGAN, J., MUNDY, J., and OTT, J. MEMORANDUM BY OTT, J. Filed: March 14, 2013 Candelario Sanchez appeals from the order entered on January 13, 2012, denying him relief on his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Sanchez, who had been convicted of drug crimes and sentenced to an aggregate term of 25 to 50 years incarceration, raises five issues in this appeal. (1) Trial counsel was ineffective for failing to properly cross-examine the Commonwealth s expert regarding drug packaging and processing and the PCRA court erred in failing to grant funds to obtain an expert to testify at the PCRA hearing; (2) Trial counsel was ineffective for failing to challenge the legality of the search warrant for 314 Reinecke Place, Sanchez s residence; (3) trial counsel was ineffective for failing to elicit relevant testimony from co-defendant, Santos Ramos-Rodriguez; (4) trial counsel was ineffective for advising Sanchez not J-S60031-12 to testify at trial; and (5) trial counsel was ineffective for failing to object to testimony regarding lab test results by someone other than the technician who performed the tests. After a thorough review of the submissions by the parties, relevant law, and the official record, we affirm. On the first four issues, we affirm on the basis of the Pa.R.A.P. 1925(a) opinion by the Honorable Richard K. Renn. We write separately on the final issue.1 The parties are directed to attach a copy of the PCRA court opinion in the event of further proceedings. We recite the factual history from our Court s direct appeal opinion.2 On November 22, December 1, and December 7, 2005, [Sanchez s] co-defendant, Santos B. Ramos-Rodriguez [footnote omitted] ( Santos ), sold five and one-half ounces of cocaine to a confidential informant ( CI ) during three controlled buys. On December 14, 2005, [Sanchez] and Santos were arrested while attempting to sell cocaine to the CI; [Sanchez] was present in the vehicle with Santos when the delivery was to occur. [Sanchez] and Santos were searched, and keys to three houses were seized.[3] A subsequent search of 626 Chestnut Street resulted in the police finding 1,600 grams of heroin; 3,700 grams of cocaine; $43,554 in cash; as well as packaging materials and a stolen gun. Also at this residence, police discovered mail in the name of [Sanchez] in the top right dresser drawer of bedroom furniture. (Notes of Testimony, 7/5/06____________________________________________ 1 See Commonwealth v.Fransen, 42 A.3d 1100, 1113 (Pa. Super. 2012) (an appellate court may affirm a valid judgment based on any reason appearing as of record, regardless of whether it is raised by appellee). 2 See Commonwealth v. Sanchez, 2194 MDA 2007 (3/24/09). 3 The police could not testify which of the men possessed which set(s) of keys. -2- J-S60031-12 7/7/06 at 87.) Medical paperwork for [Sanchez] and a letter addressed to [Sanchez] were recovered here. Additionally, the police found pictures of [Sanchez] and his co-defendant. The residence at 32 North Queen Street yielded drug packaging materials, a small amount of drugs, and various paperwork in the name of Santos Ramos. At 314 Reinecke Place, the processing house, the police found drugs; sandwich bags; plastic bags with the corners ripped; scissors; a coffee grinder; and a newspaper with numbers written in the margins.4 Originally, 314 Reinecke Place was leased to Santos; however, a year after Santos signed the lease, he moved to 626 Chestnut Street and [Sanchez] assumed the lease. In fact, Santos cosigned the lease with [Sanchez]. An electric bill addressed to Santos was also found along with [Sanchez s] mail. Opinion, 3/24/09 at 1-2. We additionally note that a neighbor of the Chestnut Street residence testified she often saw Sanchez at that residence, even when Santos was not present. Sanchez was refinishing furniture there. Sanchez took the witness into the residence to show her the completed furniture. The witness never saw any indication of drugs when she was there. Santos testified at the trial and claimed Sanchez was not part of the drug dealing activities and on the day he was arrested, Santos was giving Sanchez a ride to a relative s home. Sanchez was convicted of possession with intent to deliver cocaine and heroin, conspiracy as well as other related crimes.5 Sanchez filed a direct ____________________________________________ 4 The PCRA court correctly notes that no drugs were found at the Reinecke Place residence. This includes no evidence of drug residue on anything seized pursuant to the warrant. We also note that only one plastic bag with a corner ripped off was found, not multiple bags. 5 35 P.S. § 780-113(a)(30) (cocaine and heroin) and 18 Pa.C.S. § 903, respectively. -3- J-S60031-12 appeal, but was afforded no relief. See Commonwealth v. Sanchez, supra. He then filed this, timely, PCRA petition. After a hearing, he was denied relief and this appeal followed. As related above, we rely on the opinion of the Honorable Richard K. Renn regarding the disposition of Sanchez s first four claims. 6 Sanchez s fifth and final claim is that trial counsel was ineffective for failing to object to the testimony of Jeffrey Wagner, forensic drug supervisor for the Pennsylvania State Police. Wagner did not perform the tests on the evidence obtained in this matter. The testing was performed by Kathy Martin, a technician, who, at the time of trial had changed jobs and was employed as a laboratory technician for the Virginia Department of Forensic Sciences. Wagner, as Martin s supervisor, was allowed to testify regarding the contents of the lab reports, because the reports were business records and therefore were admissible as an exception to the hearsay rule. See Pa.R.E. 803(6). The Commonwealth and the PCRA court agreed that at the time of trial, relevant law forbid the use of a supervisor to read in lab test reports based on the business records exception. See Commonwealth v. Carter, 861 A.2d 957 (Pa. Super. 2004) (en banc). ____________________________________________ 6 The trial court authored a 1925(a) opinion on March 20, 2012 that specifically addressed the Sanchez s first issue regarding the failure to obtain an expert. That decision incorporated the prior decision of January 17, 2012. Our reliance on the trial court s reasoning includes both decisions. -4- J-S60031-12 In summary, we conclude that Appellant's constitutional right to confrontation was violated when the court admitted the lab report without the testimony of the forensic scientist who performed the mechanics of the testing and prepared the report. We base this conclusion on the following reasons, described above and summarized here: (1) Mr. Reigle was not proffered as an expert but, rather, was proffered and colloquied as a custodian of business records of the lab because the Commonwealth proceeded on the erroneous assumption that the report was properly admitted as a business record; (2) even if Mr. Reigle had been proffered as an expert, the entire substance of his testimony was merely a repetition of the information in the lab report, and the lab report would have remained inadmissible hearsay despite the fact that, as an expert, Mr. Reigle would have been entitled to rely upon it in formulating his own opinion; (3) Mr. Reigle did not have the close connection to the actual testing like the witnesses did in Kennedy and Williams, such that admission of the lab report could be deemed harmless error; and (4) the information in the erroneously admitted report was the only evidence of record establishing an essential element of the drug offenses herein, i.e., the presence of cocaine, and therefore, pursuant to McCloud, required a witness with personal knowledge of the testing. Commonwealth v. Carter, 861 A.2 at 969. Therefore, the trial court, over objection by co-defendant s counsel, erroneously allowed Wagner to testify that the evidence taken from the Chestnut Street residence, the Queen Street residence, as well the that which was obtained through the controlled buys and taken from Ramos-Rodriquez s person was, in fact, illegal narcotics. The lab report also indicated that a quantity of white powder, -5- J-S60031-12 found in a shopping bag at Sanchez s residence was not a controlled substance.7 We agree, but for different reasons, with the PCRA court that the error was ultimately harmless.8 The remedy provided for in Carter was a new trial, not dismissal of the charges. Therefore, had trial counsel objected thereby preserving the issue for direct appellate review, Sanchez would have obtained a new trial. October 17, 2007. However, our Supreme Court reversed Carter on See Commonwealth v. Carter, 932 A.2d 1261 (Pa. 2007). By the time Sanchez filed his timely direct appeal, nunc pro tunc, on December 27, 2007, the Supreme Court had reversed Carter. There would have been no point in granting a new trial, because in the new trial Wagner would have been allowed to testify regarding the lab test results just as he had in the original trial. Therefore, even if the issue had been preserved, he could not have prevailed.9 ____________________________________________ 7 There is no indication in the record how much white powder was seized from the Reinecke Street residence. Nor is there any indication what the white powder was. All the record reveals is that the seized material was not illegal. 8 See Commonwealth v. Fransen, 42 A.3d 1100, 1113 (Pa. Super. 2012) (an appellate court may affirm a valid judgment based on any reason appearing as of record, regardless of whether it is raised by the appellee). 9 The law has changed again, reverting to the requirement that the person who conducted the tests be present to testify. See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and Commonwealth v. BartonMartin, 5 A.3d 363 (Pa. Super. 2010). However, those decisions are not (Footnote Continued Next Page) -6- J-S60031-12 Judgment of sentence affirmed. Parties are directed to attach a copy of the trial court opinion in the event of further proceedings. (Footnote Continued) _______________________ retroactively applied, and do not provide an avenue of relief for Sanchez. See Commonwealth v. Brandon, 51 A.3d 231, 236 (Pa. Super. 2012). -7-

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