Com. v. Newton, Jr., B. (memorandum)
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J-S30021-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. BRIAN DEHAVEN NEWTON, JR. Appellant No. 1058 MDA 2013 Appeal from the PCRA Order May 14, 2013 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001776-2009 BEFORE: BENDER, P.J.E., MUNDY, J., and JENKINS, J. MEMORANDUM BY MUNDY, J.: FILED JUNE 02, 2014 Appellant, Brian DeHaven Newton, Jr. appeals pro se from the May 14, 2013 order dismissing his first petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. ยงยง 9541-9546.1 After careful review, we affirm. The PCRA Court summarized the relevant facts and procedural history of this case as follows. On April 28, 2010, following a jury trial [Appellant] was found guilty of fifteen (15) drug[-] related charges. On August 3, 2010, [Appellant] was sentenced by [the trial c]ourt to an aggregate sentence of three (3) to six (6) years in a state [c]orrectional [i]nstitution with a consecutive period ____________________________________________ 1 The Commonwealth elected not to file a brief in this matter. J-S30021-14 of one (1) year supervision. On August 13, 2010, [Appellant] filed [p]ost-[s]entence [m]otions, which were denied by [the trial court on January 12, 2011]. remanded for resentencing. On December 2, 2011, [the trial c]ourt resentenced [Appellant] to two (2) years and (9) months to six (6) years with a consecutive period of one (1) year of supervision. [No additional appeals were filed by Appellant]. On December 6, 2012, [Appellant] filed a pro se Post Conviction Relief Act (PCRA) Petition. [Appellant] alleged three (3) issues: 1) trial counsel was ineffective for failing to give proper representation; 2) trial counsel was ineffective for failing to object to false and incorrect statements made by the prosecutor during closing arguments to the jury; and 3) trial counsel was ineffective for inflame the jury during closing arguments. On December 13, 2012, Donald Martino, Esquire, who was appointed to represent [Appellant], filed a Motion to Withdraw as Counsel and a Memorandum Pursuant to Turner/Finley.[2] On April 16, 2013, [the PCRA court] agreed with Attorney Martino and granted the [m]otion to [w]ithdraw. In addition, the [PCRA c]ourt proposed the dismissal of the PCRA Petition and gave [Appellant] twenty (20) days to file an objection. On May [14], 2013, the [PCRA c]ourt dismissed the PCRA Petition as [Appellant] did not file any objections. PCRA Court Opinion, 8/13/13, at 1-2.3 Thereafter, on June 14, 2013, Appellant filed a timely notice of appeal.4 ____________________________________________ 2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 3 We note that on May 14, 2013, Appellant filed a pro se petition for appointment of new counsel and amendment of PCRA petition, which was (Footnote Continued Next Page) -2- J-S30021-14 On appeal, Appellant raises the following three issues for our review. I. Whether trial counsel provided ineffective assistance by failing to object to false and incorrect statements made by the prosecuting attorney during the closing arguments made to the jury[?] II. Whether trial counsel assistance by failing provided ineffective to object to the jury during closing arguments[?] III. (Footnote Continued) Whether trial counsel provided ineffective assistance of counsel by failing to investigate the case and present a proper defense[?] _______________________ petition had already been dismissed earlier that same day. 4 risoner-mailbox rule. See Smith v. Pa. Bd. of Probation and Parole, 683 A.2d 278, 281 (Pa. 1996) (establishing that under the prisoner mailbox rule, timeliness of a filing from an incarcerated pro se party is measured from the date the prisoner places it Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (applying Smith pro se Smith, supra at 282. Instantly, the final order was entered on May 14, 2013, therefore, the envelope in the certified record containing his notice of appeal is June mailbox rule. Additionally, on June 19, 2013, the PCRA court ordered Appellant to file, within 30 days, a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. On August 13, 2013, in lieu of a formal opinion, the PCRA court adopted its petition. -3- J-S30021-14 We begin by noting our well-settled standard of review. On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA and without legal error. Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania, 134 ings of the PCRA court and the evidence of record, viewed in the light most favorable to Commonwealth v. Koehler, credibility determinations, when supported by the record, are binding on this Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation de novo standard of review to the Id. Further, is well-established that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that Koehler, supra, citing Strickland v. Washington, 466 U.S. 668, 687-691 (1984). Our Supreme Court has articulated a three-pronged test to determine when an appellant has received ineffective assistance of counsel. arguable merit; (2) c Id., citing -4- J-S30021-14 Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). A defendant must show that his claim meets all three prongs of the Pierce framework in order to be entitled to relief. Commonwealth v. Thomas, 44 A.3d 12, 17 (Pa. 2012) (citation omitted). Furthermore, by a preponderance of the evidence any of the address the prongs, the Court need not Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009), appeal denied, 990 A.2d 727 (Pa. 2010). nts during closing arguments, we will address them concomitantly. In his first issue, Appellant asserts that incorrect statements made by the prosecuting attorney during the closing either, nobody saw that at 19. Id. at 14, quoting N.T., 4/29/10, Appellant argues this is in direct contradiction to the affidavit of probable cause attached to the search warrant, which stated that C.I. Joseph Wyland was seen meeting with Appellant and an exchange was observed. -5- J-S30021-14 determining process, and deprived [A]ppellant [] of a fair and impartial Id. at 16. Additionally, in his second issue Appellant argues, trial counsel was Id. at 18. Specifically, Appellant argues the prose Id. llant] guilty as Id. In accord with the long-standing principle that has permitted vigorous pros long as there is a reasonable basis in the record for Commonwealth v. Robinson, 581 Pa. 154, 864 A.2d 460, 516 17 (2004). Prosecutorial comments based on the evidence or reasonable inferences therefrom are not objectionable, nor are comments that merely constitute oratorical flair. [Commonwealth v. ] Tedford, [960 A.2d 1], 33 [(Pa. 2008)]. Furthermore, the prosecution must be permitted to Id. Any challenged prosecutorial comment must not be viewed in isolation, but rather must be considered in the context in which it was offered. Robinson, supra, at 517. It is improper for a prosecutor to offer his or her personal opinion as to the guilt of the accused or the credibility of any testimony. Commonwealth v. DeJesus, 580 Pa. 303, 860 A.2d 102, 112 (2004). However, it is well within the bounds of proper -6- J-S30021-14 advocacy for the prosecutor to summarize the facts of the case and then to ask the jury to find the accused guilty based on those facts. See id. The standard by which the court considers allegations of improper prosecutorial comments is a stringent one: Comments by a prosecutor constitute reversible error only where their unavoidable effect is to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant such that they could not weigh the evidence objectively and render a fair verdict. Tedford, supra at 33 (citation omitted). Commonwealth v. Hutchinson, 25 A.3d 277, 306-307 (Pa. 2011), cert. denied, Hutchinson v. Pennsylvania, 132 S. Ct. 2711 (2012). unable [to] view in the record any false or incorrect statements made by the review of the record, we agree. A was not observed making an exchange with C.I. Wyland, we deem record does not contain testimony that Trooper Herbst observed an exchange. [Defense Counsel]: And in particular on the 28th, your duty was to observe [Appellant] or the confidential informant or both, correct? -7- J-S30021-14 [Trooper Herbst]: Yes. [Defense Counsel]: And at no point you saw [Appellant] hand any drugs to [C.I. Wyland on the 28th]? [Trooper Herbst]: No. [Defense Counsel]: And on October 7th [the C.I.] gives you an empty bag, correct? [Trooper Herbst]: Yes. [Defense Counsel]: had no drugs in it? That potato chip bag, that [Trooper Herbst]: Correct. [Defense Counsel]: my client? But the money was found on [Trooper Herbst]: Correct. [Defense Counsel]: Ultimately as a result of all the evidence that you gathered, you requested a [Trooper Herbst]: Yes. [Defense Counsel]: car did you discover any evidence of drugs? [Trooper Herbst]: [Defense Counsel]: all? [Trooper Herbst]: No. There were no drugs in my None. N.T., 4/27/10, at 50, 55. -8- J-S30021-14 Appellant that there is any merit to the assertion that the prosecutor made a false or improper statement during his closing remarks to the jury. Rather, the prosecutor stated, as the testimony had revealed, that no exchange was Therefore, as failure to meet any prong of the Pierce test defeats a claim of In his brief, Appellant cites the following passage as an attempt to inflame the jury. [The Commonwealth]: say there is a drug problem here in Lycoming County is area? doing nothing. citing N.T., 4/29/10, at 17. theory that the C.I.s in this matter were cooperating solely to get paid. as a result of this there will be some type of judicial type o I need money to support my drug habit so what am I -9- J-S30021-14 s many buys as possible even if it means doing fake buys, even if it means implicating someone who did not detection from my surveillance team[.] N.T., 4/29/10, at 6-7. As a result, the Commonwealth responded to the defense attack on recovering addicts. They get involved with the drug a whole lot? Do you think they should be paid for contacts here with [the C.I.] and [Appellant], it, thirty bucks for each time that you do this kind of work? But they did it and they were searched. They going to stand by do nothing. We all sit back and area? The so. Id. at 17. Based on the standard set forth by our Supreme Court in Hutchinson, intended to inflame the jury must fail. Specifically, we conclude Appellant was not prejudiced by said statement as it was in direct response to Defense - 10 - J-S30021-14 See Commonwealth v. Busanet, 54 A.3d 35, 64 (Pa. 2012) (citations and violated a constitution , cert denied, Busanet v. Pennsylvania, 134 S. Ct. 178 (2013). Finally, Appellant argues that trial counsel was ineffective for failing to counsel conducted proper pretrial preparation, counsel would have had Brief at 20. More specifically, Appellant argues that Shannon Tutler, a Id. at 22. Further, Appellant asserts trial counsel did not familiarize himself with the case and therefore did not object to testimony made by C.I. Wyland which contradicted facts in the record. Id. A the following test. tness to testify does not constitute ineffectiveness per se. Commonwealth v. Cox, 603 Pa. 223, 267, 983 establishing whether defense counsel was ineffective for failing to call witnesses, a defendant must prove - 11 - J-S30021-14 the witnesses existed, the witnesses were ready and testimony prejudiced petitioner and denied him a fair Id. at 268, 983 A.2d at 693. Commonwealth v. Johnson, 27 A.3d 244, 247 (Pa. Super. 2011). defendant fails to provide affidavits from the alleged witnesses indicating Commonwealth v. McLaurin, 45 A.3d 1131, 1137 (Pa. Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013), quoting Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super. 2002), appeal denied, 818 A.2d 503 (Pa. 2003). Instantly, Appellant argues trial counsel was ineffective for failing to to attach any affidavit of her availability and willingness to testify, or to present an argument as to what evidence she would have testified about. preparation, trial counsel did not adequately familiarize himself with the case, and the must also fail. Id. at 22. Appellant argues that had counsel objected to discredited [his] testimony, it also would have exposed and established - 12 - J-S30021-14 Id. at 23. Specifically, he Id. Appellant concludes that trial counsel had no reasonable strategic basis for this decision. Our Supreme Court has recognized that the prong of th[e Pierce Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012) (citation omitted). whether there were other more logical courses of action which counsel could Commonwealth v. Chmiel, 30 A.3d 1111, 1127 reasonable basis for his actions, not if counsel pursued the best available Philistin, supra. As Appellant notes, defense counsel specific testimony into question for the jury. In his closing argument, defense counsel argued as follows. [Defense Counsel]: about the credibility of witnesses there [are] certain factors that get taken into consideration, their ability to tell the truth, in essence, and you take into consideration whether there is any motive, bias, or reasons for them to make statements other than the truth. Now, this case - - the sole part of this case rests on the credibility of [the C.I.]. Each and every alleged buy here, controlled buy, buy on September 18th, the dealing of money on September 22nd. Each - 13 - J-S30021-14 and every single one had no other visible witnesses outside of [the C.I.]. N.T., 4/28/10, at 3. Further, the only alleged error Appellant cites is the prosecutor on redirect asking him if Appellant had ever asked if he Defens vigorously pursued the defense theory that C.I. Wyland had personal motives for implicating Appellant. N.T., 4/27/10, 89-97. Accordingly, Appellant cannot meet the reasonable basis prong of the Pierce test, and his issue must fail. Based on the foregoing, we conclude that the PCRA court properly 013 order is affirmed. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/2/2014 - 14 -
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