Com. v. Ambrose, J. (memorandum)

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J-S02033-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JARON AMBROSE Appellant No. 2227 EDA 2015 Appeal from the Order June 26, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008198-2011 BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J. MEMORANDUM BY MOULTON, J.: FILED AUGUST 03, 2017 Jaron Ambrose appeals from the June 26, 2015 order entered in the Philadelphia County Court of Common Pleas dismissing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm. The PCRA court comprehensively set forth the factual and procedural history of this case in its June 26, 2015 order and opinion, which we adopt and incorporate herein. See Order and Opinion, 6/26/15, at 1-3 (“PCRA Ct. Op.”). Ambrose filed the instant PCRA petition, pro se, on January 31, 2014. On March 13, 2015, appointed PCRA counsel filed an amended petition. On May 28, 2015, the PCRA court sent notice of its intent to dismiss Ambrose’s petition pursuant to Pennsylvania Rule of Criminal Procedure 907. On June J-S02033-17 11, 2015, Ambrose filed a response letter originally addressed to PCRA counsel. On June 26, 2015, the PCRA court dismissed the petition. Thereafter, Ambrose filed a timely notice of appeal.1 Ambrose raises the following issues on appeal: Did the trial court err when it denied [Ambrose] postconviction relief in the form of a new trial based on the ineffectiveness of trial counsel and after-discovered evidence in the absence of an evidentiary [hearing]?[2] A. Is [Ambrose] entitled to a new trial or a remand for an evidentiary hearing since trial counsel was ineffective when he abdicated his responsibility as counsel to make legal determinations that were in the best interest of [Ambrose] by failing to request a mistrial after a juror was approached by a member of the deceased victim’s family? B. Is [Ambrose] entitled to a new trial or a remand for an evidentiary hearing since appellate counsel was ineffective for arguing in the direct appeal that the trial court should have sua sponte declared a mistrial? C. Is [Ambrose] entitled to a new trial or a remand for an evidentiary hearing since trial counsel was ineffective when he failed to file and litigate a motion to suppress identification? ____________________________________________ 1 On November 23, 2015, Barnabay C. Wittels, Esquire, who was Ambrose’s PCRA counsel, entered his appearance in the instant appeal. Thereafter, he filed an application to withdraw as counsel, which this Court denied on February 2, 2016. On February 10, 2016, Attorney Wittels filed an application for reconsideration of the Court’s order. On April 18, 2016, this Court denied the application without prejudice to Attorney Wittels’ right to apply to the PCRA court for the requested relief. On May 6, 2016, the PCRA court appointed Mitchell S. Strutin, Esquire, to represent Ambrose. 2 We will not address separately this introductory issue, as it merely summarizes the remaining issues Ambrose has raised on appeal. -2- J-S02033-17 D. Is [Ambrose] entitled to a new trial or a remand for an evidentiary hearing since trial counsel was ineffective when he failed to conduct a pretrial investigation? E. Is [Ambrose] entitled to a new trial or a remand for an evidentiary hearing since trial counsel was ineffective when he failed to request DNA testing be performed on the gun retrieved, the fired cartridge casings and the magazine? F. Is [Ambrose] entitled to a new trial or a remand for an evidentiary hearing as a result of after-discovered evidence based upon misconduct allegations against Detectives James Pitts and Ohmarr Jenkins? G. Is [Ambrose] entitled to a new trial or a remand for an evidentiary hearing since PCRA counsel was ineffective for failing to raise in the amended PCRA petition trial counsel’s ineffectiveness for failing to object to the admissibility of [Ambrose]’s Facebook photo as a denial of [Ambrose]’s right to confrontation since the photo was not authenticated? H. Is [Ambrose] entitled to a new trial or a remand for an evidentiary hearing since PCRA counsel was ineffective for failing to raise in the amended PCRA petition trial counsel’s ineffectiveness for failing to object to the Commonwealth’s introduction of inadmissible hearsay? I. Is [Ambrose] entitled to a new trial or a remand for an evidentiary hearing since PCRA counsel was ineffective for failing to raise in the amended PCRA petition the issue of the prosecutor’s misconduct for failing to disclose DNA testing which was conducted by Police Officer Edward Fidler and trial counsel’s ineffectiveness for failing to investigate and raise this issue at trial? Ambrose’s Br. at 4-6. Our standard of review from the denial of PCRA relief “is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). -3- J-S02033-17 Further, “[t]he right to an evidentiary hearing on a post-conviction petition is not absolute.” Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super. 2001). If a claim is “patently frivolous and is without a trace of support in either the record or from other evidence[,]” a PCRA court may decline to hold an evidentiary hearing. Id. “[O]n appeal, [this Court] must examine each of the issues raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and denying relief without an evidentiary hearing.” Id. Ambrose’s first five issues (A through E) raise claims for ineffective assistance of his counsel. When analyzing ineffectiveness claims, we begin with the presumption that counsel was effective. Commonwealth v. Spotz, 18 A.3d 244, 259-60 (Pa. 2011). “[T]he defendant bears the burden of proving ineffectiveness.” 1137 (Pa. 2009). Commonwealth v. Ligons, 971 A.2d 1125, To overcome the presumption of effectiveness, a PCRA petitioner must demonstrate that: “(1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel’s deficient performance.” Id. “A claim of ineffectiveness will be denied if the petitioner’s evidence fails to meet any of these prongs.” Id. -4- J-S02033-17 In Ambrose’s first issue, he argues that his trial counsel was ineffective for failing to move for a mistrial after a member of the victim’s family spoke to a juror during a lunch break prior to closing arguments. Our Supreme Court has stated: [T]he remedy of a mistrial is an extreme one. . . . It is primarily within the trial court’s discretion to determine whether Appellant was prejudiced by the event that forms the substance of the motion. Finally, it must be remembered that a mistrial is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial. Commonwealth v. Lease, 703 A.2d 506, 508 (Pa.Super. 1997) (quoting Commonwealth v. Montgomery, 626 A.2d 109, 112-13 (Pa. 1993)). On direct appeal, Ambrose claimed the trial court erred in failing to declare a mistrial sua sponte.3 We concluded the trial court did not err, reasoning: Here, the trial court dismissed the juror who was actually approached and thoroughly interviewed every other juror with regard to what he or she may or may not have heard. Moreover, each juror testified unequivocally that he or she could render a fair and impartial verdict. Moreover, [Ambrose] was colloquied and elected to proceed. Accordingly, we conclude that the trial court did not abuse its discretion when it did not grant a mistrial sua sponte as there was no manifest necessity to do so. ____________________________________________ 3 Because a claim of ineffectiveness “raises a distinct issue for purposes of the PCRA,” Commonwealth v. Collins, 888 A.2d 564, 573 (Pa.2005), we conclude that this claim for ineffective assistance of counsel is not barred for having been previously litigated. -5- J-S02033-17 Commonwealth v. Ambrose, No. 698 EDA 2013, unpublished memorandum at 6 (Pa.Super. filed Dec. 4, 2013). Accordingly, because we previously concluded that a mistrial was not necessary, the underlying claim of Ambrose’s first issue lacks arguable merit. The PCRA court therefore did not err in finding that Ambrose’s trial counsel was not ineffective. In his second issue, Ambrose contends that his appellate counsel was ineffective for arguing on direct appeal that the trial court should have sua sponte declared a mistrial in light of the contact between the juror and family member. Ambrose claims that appellate counsel “should never have made this argument.” Ambrose’s Br. at 24. Rather, Ambrose argues that the decision to request a mistrial lay with trial counsel, and not with Ambrose himself or the trial court. Because we previously concluded that a mistrial was not necessary, the underlying claim lacks arguable merit. Further, there is no merit to the argument that only counsel could have requested a mistrial. Cf. Commowealth v. Kelly, 797 A.2d 925, 936 (Pa.Super. 2002) (“It is within a trial judge’s discretion to declare a mistrial sua sponte upon the showing of manifest necessity, and absent an abuse of that discretion, we will not disturb his or her decision.”). Accordingly, Ambrose cannot show that he was prejudiced by appellate counsel’s performance. Thus, we conclude that appellate counsel was not ineffective. Ambrose next argues that his trial counsel was ineffective for failing to file a motion to suppress identification testimony from a Commonwealth -6- J-S02033-17 witness, Shaquita Morton. The PCRA court concluded that Ambrose’s underlying claim, that Morton’s identification testimony should have been suppressed, had no arguable merit, and thus, counsel was not ineffective for failing to file a motion to suppress. After our review of the certified record, the parties’ briefs, and the relevant law, we conclude the PCRA court did not err for the reasons stated in the PCRA court’s opinion, which we adopt and incorporate herein. See PCRA Ct. Op. at 6-9. Ambrose next argues that his trial counsel was ineffective for failing to conduct a pretrial investigation. Ambrose claims that “[t]here is no evidence that trial counsel hired an investigator, sought out witnesses or did anything other than react to the discovery provided to him by the Commonwealth.” Ambrose’s Br. at 27. We first examine the part of Ambrose’s claim regarding trial counsel’s alleged failure to investigate witnesses. To demonstrate the arguable merit of [an] underlying claim that his trial counsel was ineffective in failing to present additional witnesses, Appellant must establish the existence of and the availability of the witnesses, counsel's actual awareness, or duty to know, of the witnesses, the willingness and ability of the witnesses to cooperate and appear on the defendant’s behalf and the necessity for the proposed testimony in order to avoid prejudice. Moreover, Appellant must show how the uncalled witnesses’ testimony would have been beneficial under the circumstances of the case. Commonwealth v. Gibson, 951 A.2d 1110, 1133–34 (Pa. 2008) (citations and internal quotation omitted). -7- J-S02033-17 At trial, after Ambrose’s counsel informed the court that he did not intend to present any testimony or evidence on Ambrose’s behalf, and that Ambrose did not intend to testify, the court colloquied Ambrose. The following exchange occurred: THE COURT: The first thing is, I know you have been communicating with [your counsel] Mr. Joseph and consulting with him and he’s been talking with you as he examined witnesses. So the first question I have to you, when he makes the representation that he has no testimony to present or witnesses to present, are you in agreement with that decision? [AMBROSE]: Yes. THE COURT: Is there anyone that you want him to call or subpoena to court and they have not arrived? [AMBROSE]: No. THE COURT: Are you comfortable in that decision that you have had enough time speak with your attorney and he’s answered all of your questions? [AMBROSE]: Yes. N.T., 12/6/12, at 84-85. In addition, Ambrose failed to identify the witnesses he believes counsel failed to investigate,4 either in his amended PCRA petition5 or in his appellate brief. Therefore, we agree with the PCRA ____________________________________________ 4 In his amended PCRA petition, Ambrose alleged that trial counsel also failed to interview and call alibi witnesses. Amend. PCRA Pet. at 10. He also averred that PCRA counsel was awaiting information from Ambrose regarding the witnesses for the purpose of obtaining affidavits. Id. at n.1. The certified record does not contain any such affidavits. 5 In his original pro se PCRA petition, Ambrose listed Shikeda Johnson as a potential witness. However, Johnson testified at trial, N.T., 12/5/12, at (Footnote Continued Next Page) -8- J-S02033-17 court that trial counsel was not ineffective for allegedly failing to investigate witnesses. We also conclude that Ambrose’s claim trial counsel was ineffective for failing to hire an investigator or for failing to do “anything other than react” to the Commonwealth’s discovery likewise does not warrant relief. Ambrose cites no legal authority obligating trial counsel to hire an investigator, nor is this Court aware of such a duty; thus, the underlying claim is without merit. The case on which Ambrose relies for his claim that counsel did nothing but react to the Commonwealth’s discovery, Von Moltke v. Gillies, 332 U.S. 708 (1948), is irrelevant and contains no support for his claim. Thus, we conclude that the underlying claim lacks merit. (Footnote Continued) _______________________ 25-68, and the certification attached to Ambrose’s pro se petition indicates that Johnson’s proposed testimony would support Ambrose’s afterdiscovered evidence claim, not a claim based on counsel’s alleged failure to investigate witnesses. Additionally, according to the PCRA court, in Ambrose’s response to the court’s Rule 907 notice, which is not part of the certified record, Ambrose identified an unknown United States mail carrier as a potential witness. PCRA Ct. Op. at 14-15. The PCRA court states that this witness was presumably Elizabeth Gilbert. Id. at 14. Detective James Pitts testified at trial that someone contacted Gilbert several days after the crime to inquire whether she was the mail carrier for the street on which the crime occurred. N.T., 12/5/12, at 56. Later, Gilbert’s supervisor contacted Detective Pitts, informing him that Gilbert no longer wanted to be involved in the case, was afraid, and had indicated that “she could never identify anyone and was ultimately moved off that route.” Id. -9- J-S02033-17 Ambrose next argues that his trial counsel was ineffective for failing to request DNA testing on the recovered gun, fired cartridge casings, and gun magazine. At a pre-trial hearing on November 29, 2012, Ambrose expressly declined DNA testing of the murder weapon and waived his right to “later claim that there is possible DNA evidence that could exonerate” him. N.T., 11/29/12, at 7. As the trial court stated, “[I]n other words, if you were to be convicted, you can’t later say I want a new trial because the DNA testing was never done.” Id. Our Supreme Court has stated that counsel cannot be deemed ineffective for acting in conformity with his or her client’s instructions. Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005). Accordingly, we agree with the PCRA court’s conclusion that counsel was not ineffective for the reasons stated in the PCRA court’s opinion, which we adopt and incorporate herein. See PCRA Ct. Op. at 15-18. In Ambrose’s sixth issue, he contends that he is entitled to a new trial based on after-discovered evidence of the alleged misconduct of two detectives involved in Ambrose’s case. A PCRA petitioner may be eligible for relief if he pleads and proves by a preponderance of the evidence that his conviction resulted from “[t]he unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.” 42 Pa.C.S. § 9543 (a)(2)(vi). To establish a right to a new trial based on after- discovered evidence: - 10 - J-S02033-17 appellant must show the evidence: 1) has been discovered after trial and could not have been obtained at or prior to the conclusion of trial by the exercise of reasonable diligence; 2) is not merely corroborative or cumulative; 3) will not be used solely to impeach a witness's credibility; and 4) is of such a nature and character that a different verdict will likely result if a new trial is granted. Commonwealth v. Cousar, 154 A.3d 287, 311 (Pa. 2017). Ambrose argues that the detectives’ misconduct was documented in a November 5, 2013 newspaper article that was attached to Ambrose’s pro se PCRA petition. Ambrose’s Br. at 30. The Supreme Court addressed a similar argument in Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014). In Castro, the Court concluded that the newspaper article in that case was not evidence6 for purposes of the ____________________________________________ 6 The Court explained why the article was not evidence: We need not belabor the question of whether a newspaper article is evidence – the parties agree the article itself is not evidence.11 The Superior Court erred in treating the article as containing evidence; the article contains allegations that suggest such evidence may exist, but allegations in the media, whether true or false, are no more evidence than allegations in any other out-of-court situation. Nothing in these allegations, even read in the broadest sense, can be described as “evidence,” and references to the officer being under investigation for misconduct contains no information regarding what evidence existed to substantiate this averment. One cannot glean from these bald allegations what evidence of misconduct appellee intended to produce at the hearing. As the articles themselves were not evidence, much less sufficient evidence, we instead focus on whether the (Footnote Continued Next Page) - 11 - J-S02033-17 appellant’s post-sentence motion for a new trial based on after-discovered evidence. Id. at 826. Moreover, because the newspaper article represented the reporter’s version of what he or she had been told by another person, the Court found that it was double hearsay. Id. The Court distinguished Castro from Commonwealth v. Brosnick, 697 A.2d 725 (Pa. 1992), in which the Court remanded for a new trial. In Brosnick, the appellant, who had been convicted of driving under the influence, learned from a newspaper article that the Pennsylvania Auditor General was investigating “the company that manufactured items used to test the accuracy of breath-testing machines. The ensuing report [from the Auditor General] attacked the credibility of the machines’ certificates of accuracy.” Id. at 826–27. The appellant then moved for a new trial, citing the report rather the newspaper article. Id. at 827. The Castro Court found that, unlike Brosnick, there was no “end product here, no published report, no findings made, no charges filed.” Id. It concluded that “[w]hile newspaper articles can alert a party to the possible existence of evidence, the party must do more than (Footnote Continued) _______________________ information described in the March 30 article can otherwise serve as the basis for appellee's claim. 11 This Court and the Commonwealth and Superior Courts have held newspaper articles generally do not constitute evidence, as they contain inadmissible hearsay. Castro, 93 A.3d at 825–26 (internal citations omitted). - 12 - J-S02033-17 attach the article as establishing the evidence that will meet the fourpronged test.” Id. Ambrose contends that because the detectives involved in his case have been removed from their positions and because “some of the convictions in cases in which they were involved” have been overturned, “[t]his calls into question the propriety of the investigation and the tactics employed and utilized to obtain witness statements and identification.” Ambrose’s Br. at 32. Ambrose baldly asserts that “[i]n the instant matter, witnesses were prepared to testify that they were pressured, intimidated and threatened into giving inculpatory statement[s] and testimony against” him, id.; notably, however, in his brief he does not identify any of the witnesses. As stated above, in his pro se PCRA petition, Ambrose asserted that Shikeda Johnson could testify as to possible police misconduct in relation to this matter. Specifically, Johnson would testify that she gave statements to police and testified because “she was pressured, intimidated, [and] possibly threatened” by Detective Pitts and “possibly Robyn Alston[.]” PCRA Pet. at 7. However, Ambrose has failed to established that “the evidence was discovered after trial and could not have been obtained at or prior to the conclusion of trial by the exercise of reasonable diligence.” Cousar, 154 A.3d at 311. At trial, Johnson testified as follows: Q. Did [the police] say that they were going to take [your] child from you? - 13 - J-S02033-17 A. Yeah. They were threatening me. Q. Is that why you gave the statement? A. No. They asked me questions and I answered them. But this right here is not what I'm saying. He put extra stuff in here. Q. So what's the extra stuff that he put in? A. The big paragraph right here. Q. You didn't say any of that? A. No. He put it in his words. That's not how I put it in mind. N.T., 12/5/12, at 58. Johnson further testified that although she was asked to review her statement for accuracy and then sign it, which she did, she was “trying to sign it and go get [her] child.” Id. at 65. She testified that a police officer told her that the quicker she signed her statement, the quicker she could “get out to be with [her] child.” Id. at 67. Ambrose does not explain why any testimony regarding possible police misconduct could not have been obtained before the conclusion of trial by the exercise of reasonable diligence. Therefore, Ambrose is not entitled to relief on his after-discovered evidence claim. Additionally, we conclude that Ambrose’s last three issues, which claim ineffectiveness of PCRA counsel, cannot be reviewed for the first time on appeal. See Commonwealth v. Henkel, 90 A.3d 16, 20, 30 (Pa.Super. 2014) (en banc) (holding that “claims of PCRA counsel's ineffectiveness may not be raised for the first time on appeal” and that such claims are unreviewable); Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa.Super. - 14 - J-S02033-17 2012) (holding that “absent recognition of a constitutional right to effective collateral review counsel, claims of PCRA counsel ineffectiveness cannot be raised for the first time after a notice of appeal has been taken from the underlying PCRA matter”). Finally, because there were no genuine issues of material fact, we conclude that the PCRA court properly dismissed Ambrose’s PCRA petition without an evidentiary hearing. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/3/2017 - 15 - Circulated 07/11/2017 10:51 AM

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