COMMONWEALTH of Pennsylvania, Appellee v. Hermion Jay McLAURIN, Appellant.
Superior Court of Pennsylvania.
Submitted Feb. 6, 2012. Filed May 25, 2012.
45 A.3d 1131
Instantly, Appellant argues if Zortman applies, “the case at bar, must be one in which the proverbial ‘line is drawn’ and the facts of this case, as presented . . . a firearm found on separate and distinct floors, concealed within а bag in a shared duplex basement, with access to all, cannot be said to be in close proximity to a quantity of drugs found in an upstairs bedroom.” Appellant‘s Brief at 23-24.
Herein, the record supports the trial court‘s finding that the firearm was in “close proximity” to the controlled substance recovered in Appellant‘s bedroom, stating, “the gun was recovered from a common area inside [Appellant‘s] apartment—an area to which he had access.” Trial Court Opinion, 6/21/11, at 7. Additionally, “police found a black set of scales both inside the bag [with the firearm] and inside [Appellant‘s] bedroom.” Id. Finally, “[t]he gun was registered to a deceased [out of state] person[,]” and “[t]here is no evidence that the gun or the bag belonged to any of the other tenants.” Id. at 6-7. The evidence presented demonstrated Appellant could access the basement directly from his apartment within 10 to 15 seconds; therefore, the gun in the basement was in close proximity to the drugs in Appellant‘s bedroom. Based on the foregoing, we conclude the trial court properly determined that the gun was in close proximity to the drugs, and therefore correctly applied the mandatory minimum pursuant to
Accordingly, for all of the forеgoing reasons, we discern no error on the part of the trial court. Therefore, we affirm Appellant‘s March 2, 2011 judgment of sentence.
Judgment of sentence affirmed.
Alisa R. Hobart, Reading, for appellee.
BEFORE: STEVENS, P.J., PANELLA, J., and STRASSBURGER, J.*
OPINION BY STEVENS, P.J.:
This is an appeal from the order of the Court of Common Pleas of Berks County denying Appellant Hermion Jay McLaurin‘s petition filed pursuant to the Post Conviction Relief Act (“PCRA“),
This Court summarized the factual background of this case in reviewing Appellant‘s direct appeal:
Appellant was in a relationship with the mother of his 13-year-old victim, S.E., and frequently spent the night at the mother‘s home. On the night of June 22, 2008, Appellant was in the living room of the home, watching television, when S.E. came downstairs to watch television. S.E. watched television for a while and fell asleep on a couch. S.E. awoke to the feeling of something “going around [her] mouth.” When she opened her eyes, she “saw a man‘s penis in [her] face.” She screamed and ran up the stairs. Her mother was coming down the steps and S.E. told her what happened. S.E. continued up the stairs where she told her older sister what happened. As S.E.‘s mother was tеlling Appellant to leave the home, S.E.‘s older sister called 9-1-1. Appellant left the house before the police arrived. While the police were in the home, Appellant called and S.E.‘s sister answered the phone. She told Appellant the police wanted him to return to the home to talk with them. During this conversation, Appellant told S.E.‘s sister that he was trying to get the remote control from the couch where S.E. was lying.
When Appellant returned to the home, Officer Lincoln of the Exeter Township Police Department went outside and saw a fellow officer patting down Appellant and removing a plastic baggie containing marijuana from Appellant‘s pants pocket. Appellant was arrested and charged with two counts of indecent assault, and one count each of indecent exposure, corruption of minors, and possession of a small amount of marijuana.
Following deliberations, a jury returned guilty verdicts on one count of indеcent assault and on the indecent exposure and corruption of minors charges. The trial court found Appellant guilty of possession of a small amount of marijuana.
Appellant was sentenced to a term of 88 days (time served) to 23 months for indecent assault. The trial court also imposed concurrent three-year probationary sentences for indecent exposure and corruption of minors, consecutive to the indecent assault sentence, and imposed a $25 fine for possession of a small amount of marijuana for personal use. The trial court also confirmed thаt Appellant completed his ten-year Megan‘s Law registration form.
Commonwealth v. McLaurin, 1627 MDA 2009, unpublished memorandum at 1-3, 6 A.3d 570 (Pa.Super. filed July 22, 2010) (internal citations omitted). On July 22, 2010, this Court affirmed Appellant judgment of sentence. Id.
On March 10, 2011, Appellant filed a timely, counseled PCRA petition raising several claims of the ineffective assistance of trial counsel. After the Commonwealth filed a response to Appellant‘s petition, the PCRA court notified Appellant of its intention to dismiss his petition pursuant to
In reviewing а challenge to an order denying a PCRA petition, our standard of review is “whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court‘s findings will not be disturbed unless there is no support for the findings in the certified record.” Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa.Super.2012) (citations omitted).
Appellant claims the PCRA court erred in denying his petition without an evidentiary hearing as he alleges his various claims of the ineffective assistance of his trial counsel entitle him to a new trial. Specifically, Appellant claims his trial counsel was ineffective in (1) failing to seek the suppression of marijuana found on his person, (2) failing to call character witnesses, (3) failing to properly cross-examine and impeach the victim‘s mother, (4) failing to raise the issue of tainted testimony, (5) failing to obtain the victim‘s CYS records, and (6) failing to provide an appropriate defense to the corruption of minors charge.
Our Supreme Court has emphasized, “[a] PCRA petitioner is not entitled to an evidentiary hearing as a matter of right,
As noted above, Appellant raises numerous claims of ineffectiveness of trial counsel. “It is well-established that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel‘s performance was deficient and that such deficiency prejudiced him.” Commonwealth v. Koehler, — Pa. —, 36 A.3d 121, 132 (2012). More specifically,
[t]o prevail on a claim alleging counsel‘s ineffectiveness undеr the PCRA, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel‘s course of conduct was without a reasonable basis designed to effectuate his client‘s interest; and (3) that he was prejudiced by counsel‘s ineffectiveness, i.e. there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999); Commonwealth v. Douglas, 537 Pa. 588, 645 A.2d 226, 230 (1994).
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super.2012) (quoting Commonwealth v. Bracey, 568 Pa. 264, 276, 795 A.2d 935, 942 (2001)). After reviewing the record and Appellant‘s petition, we find that Appellant neither established that there are any genuine issues of material fact nor that he is entitled to post-conviction collateral relief.
First, Appellant claims his trial counsel was ineffective in failing to pursue suppression of the marijuana confiscated from his person after the police frisked Appellant for their safety in order to check for weapons. In his petition, Appellant states “[w]hile a patdown for weapons may have been appropriate, there was no reason [for the officers] to believe that a small bag of marijuana was a weapon.” PCRA Petition, at 2.
However, regardless of the legality of the patdown, the PCRA court concluded that this claim had no arguable merit becаuse the marijuana was admissible under the inevitable discovery doctrine upon a search incident to arrest for indecent assault. The inevitable discovery doctrine provides the following:
[i]f the prosecution can establish by a preponderance of the evidence that the illegally obtained evidence ultimately or inevitably would have been discovered by lawful means, then the evidence is admissible. The purpose of the inevitable discovery rule is to block setting aside convictions that would have been obtained without police misconduct. Thus, evidence that ultimately or inevitably would have been recovered by lawful means should not be suppressed despite the fact that its actual recovery was accomplished through illegal actions. Suppressing evidence in such cases, where it ultimately or inevitably would have lawfully been recovered, “would reject logic, experience, and common sense.”
Commonwealth v. Gonzalez, 979 A.2d 879, 890 (Pa.Super.2009) (quoting Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). In Gonzalez, this
Likewise, in this case, the police had probable cause to believe Appellant had committed an indecent assault and had the power to lawfully arrest Appellant on those grounds.1 Appellant does not challenge the officers’ authority to arrest him for the indecent assault but limits his claim to challenge thе officer‘s decision to retrieve the marijuana from Appellant‘s pants. As the marijuana would have inevitably been discovered in a search incident to arrest, counsel cannot be deemed ineffective for failing to raise this meritless claim.
Second, Appellant argues that trial counsel was ineffective in failing to call witnesses to testify to his character as a “law-abiding individual.” PCRA Petition, at 2. Our courts have set forth the procedure by which a petitioner must properly plead and prove his claim that trial counsel was ineffective in failing to call a witness:
In order to prevail on a сlaim of ineffectiveness for failing to call a witness, a defendant must prove, in addition to meeting the [main ineffectiveness prongs], that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew or should have known of the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the witness‘s testimony was so prejudicial as to have denied him a fair trial.
Commonwealth v. Walls, 993 A.2d 289, 302 (Pa.Super.2010) (quoting Commonwealth v. Wright, 599 Pa. 270, 331, 961 A.2d 119, 155 (2008) (citations omitted)).
“Further, ineffectiveness for failing to call a witness will not be found where a defendant fails to provide affidavits from the alleged witnesses indicating availability and willingness to cooperate with the defense.” Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa.Super.2002), appeal denied, 572 Pa. 754, 818 A.2d 503 (2003) (citing Commonwealth v. Davis, 381 Pa.Super. 483, 554 A.2d 104 (1989)). In Khalil, this Court dismissеd the appellant‘s claim that counsel was ineffective for failing to call certain witnesses without an evidentiary hearing because the appellant failed to provide sworn statements from the putative witnesses indicating that they were available and willing to testify or that counsel knew of their existence. Khalil, 806 A.2d at 422. This Court provided that we “will not grant relief based on an allegation that a certain witness may have testified in the absence of an affidavit from that witness to show that the witness would, in fact, testify.” Id. at 422-23.
Similarly, in this case, Appellant failed to properly plead and prove his ineffectiveness clаim as he simply listed four-
Third, Appellant claims trial counsel was ineffective in failing to properly impeach the credibility of the victim‘s mother, P.E., who was also Appellant‘s fiancée before this incident. Appellant alleges counsel should have cross-examined P.E. as to her relationship with Appellant after the assault to show she believed Appellant‘s version of the events in question. The PCRA court was correct in denying this claim as counsel did question P.E. about whether she continued her relationship with Appellant after the alleged аssault, and she denied it.
[Defense Counsel:] At the time of this alleged incident on June 22nd of 2008, was [Appellant] living with you?
[P.E.:] No.
[Defense Counsel:] Was he staying over?
[P.E.:] Yes.
[Defense Counsel:] After this happened, did you continue to see him?
[P.E.:] No.
[Defense Counsel:] Never spoke to him?
[P.E.:] Yes, I spoke to him.
[Defense Counsel:] Did you have dinner together?
[P.E.:] No.
[Defense Counsel:] Did you see one another socially after this?
[P.E.:] No.
[Defense Counsel:] Not at all?
[P.E.:] No. We—not socially, but, like I said, I talked to him because he kept calling in regards to his property and regards to maybe that we should get together and sit down and discuss what happened with [the victim]. But I refused to do so.
N.T. Trial, 3/16/09, at 32-33.
Even though P.E. denied she had any further dealings with Appellant, Appellant claims that defense counsel should have called a witness to testify that P.E. continued her relationship with Appellant after the alleged assault. Similar to Appellant‘s purported character witnesses, Appellant failed to properly prove counsel should have called this witness as he did not provide an affidavit from this witness or claim that counsel knew she existed. See Khalil, 806 A.2d at 422-23. Further, even if Appellant properly presented this claim in his petition, the trial court would not have allowed counsel to impeach P.E. with extrinsic evidence concerning specific instances of her conduct to attack her credibility on such a collateral matter far removed from the main issue оf Appellant‘s guilt.
Appellant also claims his trial counsel should have presented evidence of P.E.‘s conviction for welfare fraud to impeach her credibility. Evidence that a witness has been convicted of a crime involving dishonesty or a false statement may be admitted for the purposes of impeachment.
Fourth, Appellant argues trial counsel was ineffective in failing to “cross-examine the victim as to taint.” Appellant‘s Brief at 16. Appellant “disagrees with the victim‘s version of events and believes that the victim, her mother, and her sister all discussed and coordinated their testimony to prepare for trial.” Id. at 17. However, as Appellant has cited no lеgal authorities nor developed any meaningful analysis, we find this issue waived for lack of development.
Even if Appellant had properly developed this claim, it would be dismissed for lack of merit. In claiming that the victim fabricated her testimony, Appellant actually challenges the victim‘s credibility and does not raise an issue of taint, which concerns a child‘s comрetency to testify at trial.
The core belief underlying the theory of taint is that a child‘s memory is peculiarly susceptible to suggestibility so that when called to testify a child may have difficulty distinguishing fact from fantasy. Taint is the implantation of false memories or the distortion of real memories caused by interview techniques of law enforcement, social service personnel, and other interested adults, that are so unduly suggestive and coercive as to infect the memory of the child, rendering that child incompetent to testify. Commonwealth v. Moore, 980 A.2d 647, 650 (Pa.Super.2009) (quoting Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 (2003)).
Appellant does not question the victim‘s memory of the events in question,3 but claims the victim lied аbout the assault and rehearsed her account of the incident with her mother and sister. Appellant speculates if trial counsel had cross-examined the victim and her family on this point, they would have admitted that they coordinated their testimony. However, trial counsel repeatedly challenged the vic-
Fifth, Appellant contends his trial counsel was ineffective for failing to obtain the victim‘s CYS records because he believes these documents “contain corroborating evidence that the alleged victim has lied in the past about significant matters.” PCRA Petition, at 7.4 However, evidence of the victim‘s dishonesty would not have been admissible as
Lastly, Appellant claims that trial counsel failed to develop an appropriate defense fоr his corruption of minors charge. Appellant alleges that trial counsel did not know the corruption of minors charge was based on both the indecent assault and his marijuana use. In his petition, Appellant claims “trial counsel should have cross-examined the Commonwealth witnesses to show that marijuana was never discussed or used in the presence of the alleged victim.” PCRA Petition, at 9. Further, Appellant alleges that he would have “testified that he never discussed or used marijuana in the presence of the alleged victim.” Id.
This claim is meritless as trial counsel thoroughly cross-examined the victim after she claimed she smelled Appellant and her sister smoking marijuana in her living room. Moreover, during his trial testimony, Appellant admitted to this marijuana use and affirmed the victim was telling the truth:
[Prosecution:] On June 22nd, 2008, were you smoking marijuana?
[Appellant:] Yes, I was.
[Prosecution:] Okay. And so [the child victim] told the truth when she said that she smelled marijuana when she came downstairs?
[Appellant:] Yes, she did.
[Prosecution:] Okay. Now you heard [the victim‘s sister‘s] testimony?
[Appellant:] Yes.
[Prosecution:] Is that the person you were smoking marijuana with that night?
[Appellant:] Yes, it was.
N.T. Trial, 3/16/09, at 75. As Appellant concedes that he smoked marijuana in the
As all of Appellant‘s claims of ineffectiveness are meritless, we find that he failed to show he is entitled to post-conviction collateral relief. Accordingly, the PCRA court did not err in denying Appellant‘s petition without a hearing pursuant to
Order affirmed.
STRASSBURGER, J. files a concurring dissenting opinion.
CONCURRING AND DISSENTING OPINION BY STRASSBURGER, J.:
I agree with the majority‘s disposition of Appellant‘s claims (3) through (6). However, as I would hold that Appellant has pledged sufficient facts to warrant a hearing on his claims (1) and (2), I respectfully dissent.
As to Appellant‘s claim that counsel was ineffective for failing to seek suppression of the marijuana removed by the police from Appellant‘s pocket upon Appellant‘s return to the victim‘s house on the night of the incident, I agree with the majority and the PCRA court that, if Appellant was going to be arrested, the marijuana would be admissible under the inevitable discovery doctrine. See, e.g., Commonwealth v. Van Winkle, 880 A.2d 1280, 1285 (Pa.Super.2005) (holding that evidence obtained after officer exceeded permissible scope of weapons frisk was admissible because it fell within the inevitable discovery exception); Commonwealth v. Garcia, 443 Pa.Super. 414, 661 A.2d 1388 (1995) (holding that the defendant was not entitled to suppression of drugs in his pockеt because they inevitably would have been discovered in search incident to arrest). However, I would hold that the PCRA court‘s determination that Appellant was inevitably going to be arrested at that time is not supported by the record.
The only evidence presently of record on this subject is the trial testimony of Exeter Police Officer Karen Lincoln. Officer Lincoln testified that she and two other officers went to the victim‘s residence on June 22, 2008, to investigate a “possible sexual assault.” N.T., 3/16/2009, at 47. When Appellant returned to the home, Officer Lincoln observed Officer Harley pat down Appellant to makе sure he did not bring a weapon with him. Id. at 49. During the protective frisk, Officer Harley pulled a plastic baggie with marijuana residue from Appellant‘s front pants pocket. Id. No officer testified that Appellant would have been arrested at that time had they not discovered the marijuana.
As such, I would hold that Appellant‘s claim is not patently frivolous based upon on the present record, and that the PCRA court erred in denying Appellant the opportunity to prove his claim at a hearing. See, e.g., Walls, 993 A.2d at 299 (“Certainly, the issue cannot be deemed patently frivolous and without any support in the record or from other evidence, which is the standard for dismissing a PCRA petition without a hearing.“).
In his second claim, Appellant alleges that trial counsel was ineffective for failing to call character witnesses. Appellant alleges that the 14 witnesses listed in his PCRA petition, of whom trial counsel knew or should have known, would have testified at a hearing that they were available to testify at trial as to Appellant‘s character as a truthful and law-abiding person. Appellant‘s Brief at 13. Appellant claims
The majority holds that dismissal of this claim was propеr because Appellant failed to offer proof of the existence of the witnesses and did not attach affidavits from them concerning their proposed testimony. The PCRA court did not cite this pleading defect as a reason for dismissing the claim.1 Rather than affirm dismissal on this basis, therefore, the appropriate remedy would be to remand to allow Appellant‘s counsel to rectify the deficiency. See Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517, 526-527 (2001) (remanding case because the appellant was not put on notice of the need to amend the petition to cure a pleading defect);
“In a case such as this, where there are only two direct witnesses involved, credibility of the witnesses is of paramount importance, and character evidence is critical to the jury‘s determination of credibility.” Commonwealth v. Hull, 982 A.2d 1020, 1025 (Pa.Super.2009) (quoting Commonwealth v. Weiss, 530 Pa. 1, 606 A.2d 439, 442 (1992)). As we stated long ago,
[e]vidence of good character is substantive and positive evidence, not a mere make-weight to be considered in a doubtful case, and, according to аll our authorities, is an independent factor which may of itself engender a reasonable doubt or produce a conclusion of innocence. To be sure, it is to be considered with all the other evidence in the case. But it is not to be measured with or by other evidence. Its probative value, its power of persuasion, does not depend upon, and is not to be measured by, or appraised according to, the might or the infirmity in the Commonwealth‘s case. Even though, under all the other evidence a jury could reach a conclusion of guilt, still if the character evidence creates a reasonable doubt or establishes innocence a verdict of acquittal must be rendered.
Commonwealth v. Padden, 160 Pa.Super. 269, 50 A.2d 722, 725 (1947) (emphasis in original) (internal citations omitted) (cited with approval in Commonwealth v. Wood, 432 Pa.Super. 183, 637 A.2d 1335, 1352 (1994)). As such, when character evidence is offered, “[a] criminal defendant must receive a jury charge that evidence of good character (reputation) may, in and of itself, (by itself or alone) create a reasonable doubt of guilt and, thus, require a verdict of not guilty.” Commonwealth v. Neely, 522 Pa. 236, 561 A.2d 1, 3 (1989) (emphasis added).
Thus, the PCRA court‘s dismissive rejection of Appellant‘s second claim upon noting that “[r]eputation is an idle and most false imposition; oft got without merit . . .[,]” Order and Notice of Intеnt to Dismiss, 6/30/2011, at 6, is contrary to the well-established principles of this Commonwealth, and particularly onerous in a he-said, she-said case such as the one before us. Therefore, I would hold that Appellant‘s claim that counsel was ineffective for failing to present character witnesses is not patently frivolous, and that a hearing
“Pennsylvania courts have recognized expressly that every post-conviction litigant is entitled to at least one meaningful opportunity to have . . . issues reviewed, at least in the context of an ineffectiveness claim.” Commonwealth v. Hampton, 718 A.2d 1250, 1252 (Pa.Super.1998) (internal quotation omitted) (emphasis in original). I believe the majority‘s affirmance of the dismissal, without a hearing, of Appellant‘s above-referenced claims in his first PCRA petition fails to provide Appellant the meaningful opportunity to have his issues reviewed to which he is entitled.