Case Information
*1 J-S32014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL WILLIAMS,
Appellant No. 2836 EDA 2015
Appeal from the PCRA Order August 10, 2015 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001102-2013 BEFORE: BOWES, MUNDY AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 21, 2016
Michael Williams appeals from the August 10, 2015 order denying him PCRA relief. We affirm.
On January 16, 2013, East Police Department Inspector Salvatore Crisafulli was investigating the manufacture of methamphetamine at 1415 Pine Street, Easton. At 4:00 a.m., he conducted a trash pull, and police confiscated two trash bags from trash cans located on the curb in front of that location. Since an intense chemical odor and a white gas was emanating from the bags, the Pennsylvania Police State Clandestine Response Team (the “Team”) was contacted to process the items and control exposure to hazardous chemicals. The following items were found in the trash bags in question: 1) broken batteries, including lithium strips and * Retired Senior Judge assigned to the Superior Court.
J-S32014-16
battery hulls; 2) a brown liquid in a bottle labeled as waste; 3) a melted bottle containing a white solid substance; 4) starting fluid; 5) ammonia and PH test kits; 6) empty packages of pseudoephedrine-based medicine; 7) ice packs containing ammonia nitrate; 8) a broken pipe used to consume methamphetamine; and 9) several articles of mail addressed to Appellant at the 1415 Pine Street address. The Team concluded that these items included components and chemicals needed to manufacture methamphetamine.
Inspector Crisafulli completed an affidavit of probable cause to search 1415 Pine Street, and a warrant was issued on January 17, 2013. It was executed the same day, and the following items were recovered at that location: 1) packs of cold compresses that had been sliced open; 2) a can of starting fluid; 3) a box of baking soda; 4) two containers of salt; 5) a small glass dish and aluminum foil; 6) an ammonia nitrate test kit; 7) isopropyl alcohol; 8) a full-mouth facemask respirator; and 9) a box containing pipes utilized to consume methamphetamine. Appellant was charged with operating a methamphetamine laboratory, possession of red phosphorus and other substances with the intent to manufacture a controlled substance, possession of drug paraphernalia, and possession of a controlled substance with intent to manufacture or deliver it.
At trial, the Commonwealth’s witnesses included Inspector Crisafulli, and Rebecca Patrick, who was a laboratory technician with the Team.
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Inspector Crisafulli introduced a print-out from Meth Check, an online database tracking the purchase of ephedrine and pseudoephedrine, which are used to manufacture methamphetamine. The Meth Check document indicated that Appellant’s last purchase of a drug used to manufacture methamphetamine, which was pseudoephedrine, occurred on January 6, 2013. As of that date, Appellant was legally prevented from purchasing any more of that substance for thirty days.
Exhibits included a videotaped statement Appellant gave to police and letters that he wrote to Inspector Crisafulli. In the statement, Appellant boasted about his knowledge of the local methamphetamine market and his experience in producing that substance. Appellant told police that the remnants of the methamphetamine laboratory discovered in the trash pull was not his work, even though letters addressed to him were located in the same trash bag, since the components indicated that the laboratory was amateurish and beneath his abilities. In his letters, Appellant delineated his extensive knowledge of cooking methamphetamine, volunteered to aid the police in investigating other methamphetamine laboratories, and examined the evidence obtained in the present case.
Ms. Patrick was qualified as an expert witness in drug analysis and the clean-up of of hazardous materials from methamphetamine laboratories. She authored two laboratory reports. In the first one, Ms. Patrick focused on evidence obtained through the trash pull and reviewed the one-pot method
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of methamphetamine cooking, which she stated was commonly used in Pennsylvania. Ms. Patrick concluded that the trash pull indicated that there had been an unsuccessful attempt to manufacture methamphetamine. Ms. Patrick also testified about the empty packets of cold medicine found in the trash and indicated that they contained 8.2 grams of pseudoephedrine, which could be used to produce the same amount of methamphetamine. Ms. Patrick also stated that she tested the liquid in the bottle marked as waste and discovered during the trash pull. The liquid was positive for the presence of methamphetamine crystals and contained other by-products from producing that drug. Ms. Patrick’s second report examined the items seized pursuant to the search warrant. Ms. Patrick discussed the inventory list and explained how some of the items seized could be used to manufacture methamphetamine and were consistent with the one-pot method.
A jury convicted Appellant of all the offenses. After receiving a sentence of six and one-quarter to twenty-one years imprisonment, Appellant filed a direct appeal. We rejected his argument that his convictions were not supported by sufficient evidence and were against the weight of the evidence, but remanded for resentencing since Appellant had received a mandatory minimum sentence in violation of Alleyne v. United States , 133 S. Ct. 2151 (2013). Commonwealth v. Williams , 116 A.3d
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689 (Pa.Super. 2014) (unpublished memorandum). On March 6, 2015, Appellant was re-sentenced and received the same term of imprisonment.
On April 9, 2015, Appellant filed a timely pro se PCRA petition, counsel was appointed, and the court conducted a hearing. This appeal followed the denial of relief. Appellant presents these issues for our review:
1. Whether trial counsel was ineffective for failing to file a suppression motion challenging the validity of a search warrant?
2. Whether trial counsel was ineffective for failing to challenge the scientific evidence?
3. Whether trial counsel was ineffective for failing to object to remarks made in the closing argument by the Commonwealth?
4. Whether trial counsel was ineffective in failing to call Dawn Stocker as a witness.
Appellant’s brief at 3.
Initially, we outline our standard of review of a PCRA order.
Under the applicable standard of review, we must determine whether the ruling of the PCRA court is supported by the record and is free of legal error. Commonwealth v. Marshall , 596 Pa.
587, 947 A.2d 714, 719 (2008). The PCRA court's credibility determinations, when supported by the record, are binding on this Court. Commonwealth v. Johnson , 600 Pa. 329, 966 A.2d 523, 532, 539 (2009). However, this Court applies a de novo standard of review to the PCRA court's legal conclusions. Commonwealth v. Rios , 591 Pa. 583, 920 A.2d 790, 810 (2007).
Commonwealth v. Spotz , 18 A.3d 244, 259 (Pa. 2011). Accord Commonwealth v. Bardo , 105 A.3d 678, 685 (Pa. 2014) (“If supported by the record, the PCRA court's credibility determinations and factual findings
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are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions.”).
Appellant averments all relate to his insistence that he received ineffective assistance from trial counsel. In this respect, we observe:
Counsel is presumed effective, and in order to overcome that presumption a PCRA petitioner must plead and prove that: (1) the legal claim underlying the ineffectiveness claim has arguable merit; (2) counsel's action or inaction lacked any reasonable basis designed to effectuate petitioner's interest; and (3) counsel's action or inaction resulted in prejudice to petitioner. With regard to reasonable basis, the PCRA court does not question whether there were other more logical courses of action which counsel could have pursued; rather, the court must examine whether counsel's decisions had any reasonable basis. .
. . To demonstrate prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's actions or inactions, the result of the proceeding would have been different.
Failure to establish any prong of [this test, which is known as the] Strickland/Pierce test will defeat an ineffectiveness claim. Commonwealth v. Mason , 130 A.3d 601, 618 (Pa. 2015) (citations, quotation marks and footnote omitted).
After careful consideration of Appellant’s averments of ineffectiveness, we conclude that they are wholly without merit. We affirm on the thorough and well-reasoned August 10, 2015 opinion of the Honorable Stephen G. Baratta.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2016
- 7 - *8 Circulated 06/30/2016 01:44 PM \ .. : : • ~ i, :,,
.IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION COMMONWEAL TH OF PENNSYLVANIA
No, CP-48-CR .. 0001102.,2013 v.
MICHAEL WILLIAMS, ;.h, ~·; n '.::::
Defendant ; " ~ •1 •• .. l : ·!~·~:··.~ ;. : , .... ; :f.·{: '.. ; OPINION AND ORDER OF COURT [1] Court for disposition Is Defendant's, Ml~hael Willlams:)pet1t)'p .the
B~·fore for· r • • • ·.:. 'tt '"" • • reUef filel pursuant to Act §§ PA.CON~'.'i+Ar.A·N~. (PCRA), 42 the Post-Conviction Relief ,, : ~: .' I> !' • : ~• I "I 9541-9546. : .• :~···: i~·-; ... ••.•• ,, ... _ ~j"': I ... :Fa~tu~a·i Background and Procedural History · I, On January· 16, 2013, Inspector Salvatore Crlsafulli, of the Easton Police Department was participating in an /nvestlgatlon related to the manutactore of controlled substances from .a resldence !dentified as 1415 Pine Street In fhe City of Easton. '.
Northampton County. Pennsylvania. At approximately 4:00 a.m., Inspector· Crlsafulli . .- conducted a "trash pull'\ In which the police took two bags of trash from three curbside trashcans in front of 1415 Pine Street. The trash bags were transported to the Easton Police Department for examination. Inspector Crlsafulll testified that there was a strong.
intense ch~;mlcal,p?or coming from the bags, along with a white gas.
•; ... The P~pnsy!.v:~nia State Clandestine Response ,earn was contacted to aid In processing }he lf,erns and to limit the hazardous exposure of the officers. The Items recovered f;om';:t_H-~'·1rash pull included (1) broken batteries, lnciudlng lithium strips and 1) L .: .. :r
,-
battery hulls; (2) a · brownish liquid In a Pepsi bottle marked as "waste"; (3) a melted .: bottle with a white solid gassing substance; (4) starting fluld; (5) an ammonia test kit and *9 . ,· I ' ' ·.j • •. :'/ . 'l .: • ·, PH test kit; (~)'empty blister packs of pseudoephedrine-based medicine; (7) ice packs, : . . \~ ·/T~~ . which contain .ammonta nitrate In small round balls; and (8) a broken meth pipe. The
·
Clan Lab Team confirmed that a clandestine metharnphetamine lab was recovered as
:-.;:'/.· well as the lngiedients used to manufacture methamphetamlne. Additionally, the officers recovered from the trash bags several articles of mail and paperwork addressed to Michael Williams with the address of 1415 Pine Street.
tnspector CrisafulH presented an appllcatlon for a search warrant and affidavit of probable cause on January 17, 2013. The search warrant for 1415 Pine Street was signed by the lss.uing authority, Elizabeth A. Romig, Senior Magisterial District Judge, '
The search warrant was executed on January 17, 2013 and the officers selzed (1) •• [0] [0] tO T packs of cold compresses, which were cut open; (2) a can of Prestone Starting Ffuld, unopened: (3) · (box of baking soda; (4) two containers of salt; (5) a smalLg!ass dish
.:: J ~.: : • : and. alumJnum:.f6"i!; (6) an ammonia nitrate test kit; (7) lsopropyl alcohol; (8) a full-mouth ' ·:
facernaskresplrator: and (9) a box containing rneth pipes. Wflllams was subsequently
'} ! : I~-~!;• • ·.
charged w1th-:qH¢.rat1ng a methamphetamine laboratory; possession of red phosphorus • . , etc. with lntent to manufacture a controlled substance; use of, or possession with intent to use, drug paraphernalia; and manufacture, delivery, or possession with Intent to manufacture or deliver a controlled substance. [1] A jury trial was held from July 8 through July 1 q, 2013.
Followlng a jury trial, Wilflarns was found gullty of all charges. In so dolng, the jury also concluded that Williams had manufactured between 5 and 10 grams of methamohetemlne. Subsequent thereto, this Court sentenced Williams on Sep,!ember 6, 1 35 P .q.i §§" x.780-113.4(a)(1), 780-113. 1 (a)(3), 780-113(a)(32), 780-113(a)(3)l respectively.
. ·,
2013 toan aggregate period of 6 Y-i to 21 years' incarceration. On September 61 2013, Wllli~m: filed post-sentence motions pro se. On September 9, 2013, detense counsel was dlsoharqed, as Williams raised complaints of Ineffectiveness of counsel, and
• :•l conflict .. counset Brian Monahan, E:squlre, was appointed to represent Williams I!~·· . ~ .';° .. regardint1 post-sentence matters .
:i. · 'On s·eptember 16, 2013, Williams filed a pro se notice of appeal to the Superior
· . . Court o(Pen:nsylvanla. Consequently, this court found ·that Williams' notice divested us . 1:-' :.::,; ' of Jurisdiction and entered an order denying said motions pursuant to Pa.RAP. 1701 (a)
on September 24, 2013. On or about December 6 [1] 2013, the Superlor Court remanded the matter back to this Court for the filing of counseled post-sentence motions nuno pro • • I • ' ~ .-· tune. On March 13, 2014, Wiiiiams filed post-sentence motions, which this Court denied .
on April 15, 2014. Williams then filed a timely appeal to the Superior Court raising challenges to the sufficiency and weight of the evidence and· both the discretionary the [1] 133 S.Ct 2151 (2013). On December 16, 2014 Superior Court affirmed States, aspects of his sentence and the legality of this In light of sentence Alleyne· v, United . ,, . . Witllams' 9.pnvlctfqns; however vacated Williams' sentence and remanded the. matter to ; ~ . .'·
this. Court:for resentenclnq without consideration of the mandatory minimum sentences
. ·l ~ f .
provided in 18, ..PA.CONS.STAT.ANN. § 7508(a)(4){f). On March 6, 20151 this Court : ,· :·, .. :· .. ~ ~
resentenced Williams. Williams flied the instant prose PCRA petition on April 9, 2015.
Brian Monahan, Esquire, was appointed to continue representing Wllllams in these PCRA proceedings. This Court held a hearing on Wllllamsr PCRA petition on June 11, 2015.
·:'.
··-'h)i
II. PCRA Standard of Review
;, When reviewing an order dismissing a PCRA petition, the Superior Court must determf~e whether the rullng of the PCRA court rs supported by. record evidence and is free of legal error. Commonwealth v, Burkett, 5 A.3d 1260, 1267 (Pa, Super. 2010). "Great deference is granted to the findings of the PCRA court, and these findings will not be d.isturbed unless they have no support ln the certified· record." Commonwealth v, cener, 21 ~.3d 680, 682 (Pa. Super. 2011) (cltatlon omitted) .
. Ill. Discussion :··. ,·. ,;·i ;•::· !•'1;: Ineffective of Counsel- General Standard . i:-· The· i;~w J~~kumes counsel has rendered effective assistance. Comm9nwealth v.
Willlams, 597. · Pa. 109 [1] (2008). 294 A.2d 950 a clalrn of Ineffective When asserting .'·. ~I. I ~ ~ • • /: j: : $ I
..... ·,··~ assistance of'c~unsel, the petitioner is required to demonstrate that: (1) the un~erlying claim Is of arguable merit; (2) counsel had no reasonable strategic basis for his action or Inaction: and, (3) but for the errors and omissions of counsel, there Is a reasonable probability that the outcome of the proceedings would have been. different. Commonwealth v, Kimball, 555 Pa. 299 [1] 724 A.2d 326 (1999). The failure to satisfy any prong. of the test for Ineffectiveness wlll cause the clalm to fail. Williams, supra.
"The threshold inquiry In ineffectiveness claims Is whether the Issue/argument/tactic which counsel,: lias foregon~ and which forms the basis for the assertion of :-, ineffecUv~ness)if of arguable meriC." Commonwealth v. Pierce, 537 Pa.'. 514, 524, 6~5 A.2d \189, A ~4 (1994). "Counsel cannot be fou.nd ineffective for falllng to pursue a
~ ! ' $ • • I ' baseless -or 11\~titless claim." Commonwealth v, Poplawski, 852 A.2d 323, 327 (Pa. ·:. .-
'.\"
Super. 20Q4). :)}( :·t ·:.
once · 'this threshold Is met we apply the 'reasonable basis' test to 9:eterrnihe whether counsel's chosen co.urse was designed to effectuate his client' s Interests, If we conclude that the particular course chosen by c:9unseF:;had some reasonable basis, our inquiry ceases and counsel's assistance Is deemed effective. '··.:· :·.·. ,i:
Pierce, ~upr1 -~t 524, 645 A.2d at 194-195 (internal citations omitted). Prejudice Is established when [a defendant] demonstrates that counsel's chosen course of action had an adverse effect on th·e outcome of the proceedings. The defendant must. show that there is a reasonable probablllly that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probabllity )s a probabllily sufficient to undermine confidence In the outcome. In [Klniba/1, supra], we held that a "crlmlnal defendant alleging prejud{ce must 'show th~t counsel's errors were so serious as t9 deprive the defendant of a falr trial, a trial whose result Is reliable."
CoP.Jmo.JJwealth v, 9,hambers, 570 Pa. 3 [1] 21-22, 807 A.2d 872, 883 (2002) (some internal cltatlons and quotation marks omitted) .
."_ Ineffectiveness of Counsel - Fa/lure to File a Motion to Suppress/~',., 1Jh1s firit issue, Willlams avers that trial counsel was lne~ective /~ failing to
. .:t -::;_;';! . ch.allenge· the:'Jklidlty of the search warrant by flllng an omnibus pre-trla] motion to '•,·: , t •.'· \ ;. I suppress.' w\hia:ms submits that raising a Fourth Amendment claim 'would have ~.: ·-~
resulted I~ the excluslon of evidence that was unconstltutlonally seized from an illegal
l search or('January 17, 2013 [11] wher~ the "police executed a 'force entry without a search warrant oriany offlcial document au.thorlzlng them do so." See Pro Se Brief In Support of Post-Conviction Relief Act, 5/4/151 at 2J3. Further, Williams avows that the "affldavlt ... itself failed to establlsh probable cause to issue the warrant" and thus, trial counsel ~ ... should haye filed a motion to suppress. The crux of WJJllams' argument at tre time of
the PCRA_, hearing and, m his repeatedly pro se filings to this Court Is that, counsel failed to provlde, bim with a copy of the signed search warrant and that In his words "[the
I :-, '.<~ / ··.,· :\. .·• ,·,_
.. '~ .;'-._,;\.\·_:) *13 pollce] .entered [his] house with no paperwork at all" and as such "the search was not legal.'t s:ee N.T. [1] PCRA Hearing, 6/11~15 [1] at 14.
Where the ineffectiveness claim is based on the failure of counsel. to move for suppression o'i evidence, "the defendant must establish that there was no. reasonable
·: ·.·: basis f9r not }ursuing the suppression claim and that If the evidence had been £:J. '; • suppress,ed, .th~re is a reasonable probability the verdict would have been more favorable," Co'fi/monwea/th v. Arch, 1141 654 A.2d 1143 (Pa. Super. 1995) ( citation [1] .. ·.; .,· j ~ I r. • ~) ~·
omitted). Thus, we must first determine If there Is merit to the claim that the evidence seized fr?m Willlams' residence should have been suppressed due to the lack of a search warrant or that the affidavit Jacked probable cause to Issue.
Article I, Section 8 of the Pennsylvania Constitution provides as follows: The people shall be secure in their persons, houses, papers and possession from unreasonable searches and seizures, and no warrant to · search any place or to seize any person or things shall Issue without
describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the afflant.
The· protection provided by Article I, Section 8 "extends to areas ·Where an ~ . ·. \ individual ·has ateasonable expectation of privacy." Commonwealth v, Shaw, 564 Pa, ~-- ~- : .: ~ 1 : 617, 770 ,6;:2d 2~$. 299 (2001). Pursuant to the so-called exclusionary rule, "(eJvidence :-· -.; ·:... !·._··.,;.. •
discovered· as· a · result of a search that violates the fundamental constitutional ······ , ... i -.'' -:" I, Section 8 will be suppressed." Commonwealth v, Gordon, 546 guarantees ofArtlcle Pa. 651 68~ A.2d 253, 256 (1996). Thus, It is Important to dis11ngulsh between a vlolatlon of the fundamental constitutional guarantees of Article I, Section 8 and the mere technJ.cal noncompllan?e wi.th the Pennsylvania Rules of Criminal Procedure. The Supreme court of Pennsylvanfa has in fact, spec!fically [0] reject[edJ the automatic
"'•: ., .. :·: ' Ii,: ! -~. app/ica\ion of the exclusionary rule to suppress evidence selzed pursuant to a search
,, which In some way vlolates the Pennsylvania Rules of Crimlnal Procedure relating to the issuance and execution of search warrants." Commonwealth v, Ger~ld Mason, 507 Pa. 396, 490 A.2d 421, 423 (1985). Indeed, ft Is only when vlolatlons of the Rules "assume .. constitutional dimensions and/or substantially prejudice the accused" that suppresslon may be necessary. Id. at 425. ·
in .order to insure the protections provided under the Fourth Amendment to the United States Constitution and Article I, Section a of our Pennsylvania Constitution ... •' ·: >- ·~ . :: : I against unreasonable searches' and seizures, ·both the Pennsylvania Supreme Court ~nd · the ;:Unlt~idy:~tates Supre~e Court require law enforcement offic.ers to ob.tai~ a ' Judicialliissued:'$earch warrant, absent certain exigent circumstances. Commonwealth •
v, Chandler, q0.5 Pa, 113 [1] 122, 4 77 A.2d 851, 855 (1984). A prior Independent judlclal
:_i· e
determination of probable cause Is essential:
It Is· not enough, absent exigent.circumstances, that a policeman believe thefacts he has are probable cause for a search warrant. The people of thls~state and nation are constitutionally entitled to an Independent 'judfclal determination. of probable cause before they must open to the policeman's knock at the door fn the night. Moreover, that determination must be made before and not after the search. The written affidavit of probable cause simply Insures an accurate record of the verlfled (sworn) facts the issuing author.Uy had when he made his determination before the event
*** Reasonable judges and legal scholars may well differ over .the technicalities of how best to memorialize the facts the Issuer of the warrant had\~1hen;he .Issued It and how technical courts should be in reviewlng [1] his deolslon ·t~ .. lssue. We believe, however, none ever doubted the necessity of the ex~r?lse of j~dicial discretion.
/d.:':(dtatlons omr(t~d).
· At the tfrh{~t the PCRA hearing, Wllllams argued that he instructed trial counsel to ffle a mStto~·\g: suppress; however) counsel "didn't do anything." See N.T., PCRA
·'· ':, Hearing; 6/1 v_~:s. at 12. To the contrary, Attorney Shipman testified that he :~rd not recall asking' William~:· that him to do but "he may have," Id. 44. at if [11] According to counsel •. .. -·· t: '.;;
{Williams] dld, [he] would have told him that {he] would not have filed it because the · .. warrant :~p~ci'~,r~d to comply," .Id. More importantly, [11] if the warrant had any Irregularities ·.'. ' .. ;._•.·· that (heJ::.observed" Attorney Shipman "would have tiled a motion to address that." Id.
Attorney Shipman's trial strategy Is sound In this regard. Senior Magisterial Dlstrlct J,udge Elizabeth Romig swore the oath of Inspector CrlsafuHI on ~aduary 17 [1] 2013 and, concluded that probable cause existed for the Issuance of the warrant. Contra~.to Williams repeated proclamation otherwise, the Jurat 2 as well the slqnature of th.e Issuing authority is affixetj. to ,t_he warrant. Further, our review qf the "Application for Search Warranr and Authorlzatlon" trne-stamped and flied with this Court on January t 28, 2013:_.indlc~t~s that all of the other procedural mandates with respect to th~ Issuance :.!.! : ':': ~J of a search warrant have been fully complied with. Specifically, In the "Search Warrant"
~ · I ; , t s~dion of*the -~:~rrant, Sr. Magisterial District Judge Romig marked an "x" ~e; to the line indlc-~tiniva :.: daytime warrant and wrote "1 :30 PM o'clock January 19 [1] 2013 [11] -, ,·
lndloating)he la$t date on which the warrant could be executed. She checked the box under [11] Slgnature of Issuing Authority" lndlcatrng her title as [11] Senlor Magisterial District Judge [11] an~ wrote in the date on whfch her commission expires, usr.M.D.,J.". Even though Williams Insists otherwise, the search warrant was not sealed.
Atto,rney Shipman readfly admitted that "Initially In discovery [he] received a
j ,;· search warrant" which "was not completed": however, as he recalls "somewhere near 2 The jura( ls the;; certificate signed by the judicial officer stating that the affidavit of probable cause'" was sworn to and subscribed by the affiant before her, See Commom{ealth'.Y., Vaughn, 789 A2d 261, n. 1 (Pa. Super, 2001). · ~,.: .:· r. ·., t~~;
<~ ..... ;I *16 trial, maybe even the first day" he was provided with ' [1] a copy of the signed warrant 1·. : which was filed with this Court. Id. at 43. Attorney Shipman testifJed that '.he provlded Williams with a copy of the warrant. Id. The search warrant was valid 'and properly executed, WIHlams invokes no other constltutlonal violations with respect to the warrant . ., other than a ~:rbcedural one. As such, counsel cannot be deemed lneffectiV.e in falling to t,·· . ~· ··: <:. ·'._ ~ ~ . .. pursuea baseless suppression motion. .. .
•, ,· . Ineffectiveness of Counsel - Failure to Challenge the Scientific Evldr:ince :~ ; . N·ext, '.Williams argues that counsel was Ineffective in failing to hire an expert to .\ : . the' results in order to challenge the scientific evidence presented by
test ... C<?f(l~O~Yf~~lt.~ ... ~.lt~e.ss., Rebecca Patrick,. Alter.n~~!Y~lYi William~ avers t.hat counsel
was ineffective In falling to request additlonal discovery related to the tests, conducted by the state police laboratory technician. Sea N.T., PCRA Hearing, 6/11/15; a.t 24.
At the time of trial, the Commonwealth presented PSP forensic scientist Rebecca Patrtok as an expert witness In the field of drug analysis and the hazmat 'clean-up of meth labs. In her testimony, the Commonwealth Introduced Into evidence two laboratory
!_,.· reports. T_he ff~sflab report focused on evidence obtained through the "tras·b pull" and
:·: .. ... ·i.. :/,' g~ve an :6veNi.~yv of the one-pot method of meth cooking that is commonly used In ~.-:. ;-·
. / -: ~ Pennsylv;:inla. [1] ·.:Ms.. Patrick concluded that the clandestine manufacturing of
., ·• ! :
methamphetarnih_e was attempted, but unsuccessful, citing the Ignited plastic bottle, '. ":•.-. which she' referred to as the ' [1] cooking vessel", as evidence that something went wrong in the maqufacturing process. Ms. Patrick testified that no methamphetamlns was found
,.
because it ·appeared that the cooking process had failed.
;·. .,,. -~·-. ···~
··--~· ·: l • r
/: ,; ·Li;·;.\d fy1s. Patrlok also testlffed about the two blister packs of cold medicine. Ms. Patrick , .. .. testified. that each blister pack holds 3.6 grams of pseudoephedrlne and can be used to · generate a one-to-one ratio of methamphetamlne - 3.6 grams of pseudoephedrlne can produce 3.6 grams of metharnphetamlne.
The second lab report focused on the items seized from Williams' bedroom when the police officers executed the search warrant. Ms. Patrick went through the Inventory list and explained· how some of the Items seized could be used to manufacture methamohetamlns. Ms. Patrick concluded that many of the items found were. consistent ' with the?one~~6t method commonly used in Pennsylvania. During her te~~lmony Ms, ·;·, : : ·:; ~· ; ' :- .l1\ · · Patric~ w~~.P.t~s~nted with a Peps] b.qtH~ •. which was fille.d with what appeared to be a ....
brownlshiliq~ld:':The bottle was marked 'waste," apparently labeled prior to lts seizure by law evforc~nj¢nt. Ms. Patrick testified that she removed and weighed just the liquid. ; ; -: ~ :,. ,.
Then sh~, tested the liquid for the presence of methamphetamlne and identified the presence· of melharrohetamlne crystals fn the /iquld.
On .dlreot and cross-examinatlon, Ms. Patrick acknowledge that the liquid -solutlon was not,· entirely methamphetamine. It also contained the by-products . from the manufacture of methamphetamlne. Ms. Patrlck testified that one knowledgeable about the manufacturing process can store the water from the manufacturing process to later distlll the soJutio;nJo retrieve the methamphetamlne that is dissolved within. Further, Ms.
Patrick acknowledged that it is possible that the solution may also have contained urine, ·.:· .. .'.';.'_• . as;,knowledgea6ti{ users can recycle urine to reclaim any methamphetamlne·that was • t ;: , ~ • ; .. ; : 1 I : ; : not processed by the body. However, Ms, Patrick did not test the solution for the ,;\,.:· ;·- I'-' presence qf urlnf .. Further, Ms. Patrick did not reduce the llquid solution to 'measure the '!:' :·-~! .....
'. ; .. ~ *18 weight ;pt on [1] IY; ,the methamphetamine. The lab report indicated that the edt1re solution
:_:'.~ ·\!.\ 7: . weighe~; 1,34,Q;grams.
~·!-/ ··: :"{ ;/.:::~- . In. hls--.·P,GRA. Williams avers that, Ms. Patrick Is "not certified to do analogical . : :' •.· ,':."I
chemical aD;~fy.sis on gas chromatography testing" because the 'Bethlehem Reglonal . ~ . .: . . .
Laboratory ls··::not eqlJipped to do those klnds of tests." See N.T., PCRA Hearing . . '. ·I'
6/11/15, '. .at 15-16. Williams, a selt-proclalmed expert meth cooker stated that Ms. Patrick's conclusions were based on pure speculation and conjecture because, 'you cannot know the contents of bottle by doing a Ph test and a color test." Id. at 20. It is Williams'· opinion that without 'a "fluid analysis work-up" it was Impossible to piJt on tests for contents of the bottle." fcf.. ~t. 1.l?. 20 .. Af> such, Williams argues that Ms. P.atrick's
·, report was what he coins "a dry lab report" meaning "a report without the test.certificate attached to it." fc(.Williams avows that trial counsel was Ineffective in falling tq/challenge
;:.:,. :<t ·.~·: . ::~.; the sclentltlc ivldence presented by Ms. Patrick by callin'g Its own ·,:expert or . . ;· .< .". ': .
alternatlv~ly, r~qulring the Commonwealth to produce additional discovery, Le .• a copy . . ·.:• . ' of the tes(res~lts."We disagree. \!i -~·~ :-: .-:
Admission .of evidence is within the sound discretion of the trial court and will not '" . ~
be reversed absent an abuse of that discretion. Commonwealth v. Begley, 566 Pa. 239, 780 A2d 605 (2001 ). Moreover, the standard for qualifylng an expert witness Is a liberal one: the witness need only have a reasonable pretension to specialized knowledge on a subject for which expert testimony is admissible. Commonwealth v, Rlffert, 549_ A.2d 566 (1988). The witness's expertise may be based on practical, occupational. or other experiential training; It need not have been gained .'through · Id. Expertise can most certainly be .acquired· though academic training,. alone. <
Io • • ., :· .. . ~ -' .: ·.·:.:·, ---~ :.· *19 .....
... ....,;
occupational experience as well as by scientific study.'' Commonwealth v, Spotz, A.2d 1139, 1160 (Pa. 2000), cert. denied, 532 U.S. 932, 121 S.Ct. 1381, .149 L.Ed.2d 307 (citations omitted).
As th1$/;Court aptly noted, Ms. Patrick "gave her opinion based on her observation, b,·ased on her work In the lab and a whole bunch of things related to -
[Wllli~ms} co~klng process". Id. The jury, sitting as the flnder-ot-taot was free to weigh - '! ·.,· ..
the evldence.and Ms. Patrick's credibility In rendering Its verdict. Whatever counsel's .''. ;, reasoning or-'~!fategy behind not calling an expert witness of his own cannot be deemed ,,, I
Ineffectiveness of counsel Just because it was not the winning d~fense, Trial counsel testified that h~. h~q the opportunity to examine the lab .report .. . ' prepared by Ms. Patrick and nothing "In that lab report raised suspicion or caused fhlmJ · to believe there was an Issue with It." See N.T., PCRA Hearing, 6/11/15 at 46. If there "had been something that alerted [himJ" he would have Investigated further.' Id. Accordlnq to Attorney Shipman:
It appeared to fhlmJ to be on its face, like every other lab report that [heJ [has] seer Jn here, It just Indicated .. , there was nothing about it that would have· indicated that this was based on a falsehood, not on science, but slmP.JY a II~'/ '" ':», • I;.'. ; Id;· at' 4 7. In: addltlo:n, counsel tenaciously cross-examined the expert Ms. Patrick whom
had the lab:.repnrts'ln hand and testified as to what tests she performed in the Jab. Id. at 23. By Wlll~~ms"=/~wn admission, counsel "did bring out some points at trial" and "did a good job" of "proving It was not lab waste." Id. at 34. Accordingly, this claim too lacks merit.
~ . .
'··' ·;:·i/
Lneffecflveness of Trial Counsel - Failure to Ob/eel Wiiiiams next asserts that during the Commonwealth's closing argument, the prosecutor made improper remarks "concernlnc the ingredients to the jury." See N.T., PCRA Hearing, 6/11 /15 at 27. Specifically, Williams avers that "[the prosecutor] told the jury' that baking soda can be used as a substitute for drain cleaner" and that "polloe found red phosphorus, which they did not." Id. Willlams, a self-proclaimed quallly meth cooker, testified that "there {are) seven ingredients that she claims to manufacture
l .; . rnelhamphetamlne: red phosphorous is not one." Id. at 27, 38-39. Further, Willlams • ~i: .•" I avers th~'t ''bakl~g soda ls not used In place of drain cleaner to manufacture meth In the ;:· '.. . . : ', , -·.· ·,-_:. United St~tes cir around the world. You can ask any criminal you want." id. at 28. It is·
Williams' posH19n, that those comments by the prosecutor were improper. remarks made· ,. : to the jury and as such, trial counsel was Ineffective In falling to object to the
prosecutor's closing argument We disagree.
In considering a prosecutorlal misconduct claim, "our attention ls focused on whether the defendant was deprived of a fair trial, not a perfect one." Commonwealth v, Harris,.884 A.2d 920, 927 (Pa. Super. 2005), appeal denied, 593 Pa. 726, .928 A.2d 1289 (2007,),
Not every unwise remark on a prosecutor's part constitutes reversible error. Indeed, the test is a relatlvely stringent one. Generally speaking\.· a prosecutor's comments do not constitute reversible error unless the unayoldafiie'. effect of such comments would be to prejudice the j1.frv1 forming lh ·~heir minds fixed bias and hostlllly toward [the defendant) 'so I I . that:'they"·could not weigh the evidence objectively and render a true I verdict. Proseoutorlat misconduct, however, wlll not be found where l comments: .. were only oratorical flalr. In order to evaluate whether comments were Improper, we must look to the context In which they were I made. FlnaUy, when a trial court finds that a prosecutor's comments were inappropriate, 1hey may be appropriately cured by a cautionary instruction to th~: Jury. I !
: ' )
Id. "[At_newjtrial is required only when a prosecutor's improper remarks are prejudlclal, i;.: · 't,«, w~·en they are of such a nature or delivered in such a manner that they may
reasonablyr··.b:e said to have deprived the defendant of a fair and impartial trlal," 1989), 111 (Pa. Super. 554 A.2d 104, [1] J. Davis, v, Commq_nwealfh 524 appeal denied, , .-~ : • ~ ~ I
Pa, 61?_571 A.2d 380 (1989).
Instantly, the prosecutor made the following comments during closing arguments: Now, we also have the Ingredients, lhe precursors. We have the main Jngredlent,· the ingredient you must have, the pseudoephedrine.
(indicating). The hot Item. We have the sodium chloride, which Is the salt, (indicating), we have the lithium, (Indicating) the batteries, (Indicating, we have the ammonium nitrate, (indlcating)t' the cut cold packs, (Indicating), we have the sodium bloarbonate, (indicating), which she testified you oen iis'itb'akliiii soda, · ws a weaJrer siilisBtute' for "th'e"(lialn G,Y$fats;· ...
but stl/l works, She found it to be significant. The alcohol, (indicating). to: help · break down the pseudoephedrlne. There was also: red phosphorus from matches, you saw the picture, but you had to get the stg'iy. What else? We have the byproducts of the manufacti,tring process.:;., the waste. She testified how when you rnanutacture , ... rnethamphetamlne, you take a coffee filter, you pour the product Into a
funnel i~tb the coffee filter to drain out the waste product and you're left wJth the'smokable, ingestible, usable meth crystals. So we have the waste p~oduct:right here. (i~dicating) ,, ii;
,:i ,.· Now, let's talk about that a UUle further. Let's talk about some of the things that he did admit to processfng. First in the garbage we have these recipes or these ingredients used to make meth, the baking soda, the sodium bicarbonate is in here, the ammonia, the battery acid, hydrochloric acid, the eiher, not short of trying to make meth with the red phosphorus, the strike pad.
See N.T. [1] Jury Trial, Volume Ill, 7/10/13, at 15~17 (emphasis added).
"A prosecutor has great discretion during closing argument. Indeed/ a closing : I ' ' 'argument'· is just that: argument." Commonwealth v, Brown. 911 A.2d 576; 580 (Pa.
Super. 2906), ~ppea/ denied, 591 Pa. 722, 920 A.2d 830 (2007). ult Is well settled that > '·i ;_:;:-(:
:·,'.···,. *22 the prosecutor may fairly respond to points made in the defense closing. Moreover, prosecutorlal misconduct will not be found where comments were based on the evidence or proper inferences therefrom ... [11] Commonwealth v, Hogentogfer. 53 A.3d 866, 878 (Pa-Super, 2012), appe8f denled1 620 Pa. 720. 69 A.3d 600 (201-3) (quotation . . .. . ; . omitted). Her~;:ithe prosecutor was merely commenting on the evidence presented by . . . : . ··: ... : ~ . \ .
the Co~mo~~~alth's witnesses. The comments were clearly derived from the evidence ·. . .... ·. . · . . :· .
and tesfmony.adduced at trial or from proper Inferences drawn therefrom and thus, . . . . . ~ . .·. were entl,rely,p:ermlsslble. A~ such, trial counsel cannot be deemed Ineffective In falling to objectto the prosecutor's remarks. ln_effectiveness of Trial Counsel - Failure to Call a Witness ..... .
. . . . . . Williams next avers that counsel was ineffective in falling to call his sister, Dawn Stocker as a witness at the time. of irial. To succeed on a claim of counsel's . ..
ineffective!)ess for failure to call a witness a petitioner must prove that "the wltness r J . :
. existed, the witness (was} ready and willing to testify, and the absence· of the witness['] . . ,.• testimony prejudlced petitioner and denied him a fair trial." commonweettnv. Luster, . . : .· 71 A.3d 1029, 1047 (Pa. super. 2013) (en bane) (citations omitted) . . .. ·: ~ ; '. . . , .
Acc~rdln~jo Williams, Dawn Stocker was ready and willing to testify on his ·~·:· .. ~· / ',
behalf. ln .. suppc,tfof his claim, Williams attached an affidavit from Dawn Stocker which ', ~ . ~ ... . ··..
provided as tdllows: . ·:(· , ... ,. :,_ · Mike L. Wiiiiams did not live at 120 A. 15 1h Street. I Dawn Stocker rent the
apt. 'at the time I was In a work-release program, the apt. was raided, the police were not there for Mike Wiiliams they came In looking for a guy my dau9hter was dating who was also selling heroin.
See unsworn Declaration to Authorities, Dawn M. Stocker, 3/2/15. At the time of the PCRA hearing, Williams stated "this cop lied on the witness stand about [his)
··..:·
.i .: ··.·i ..... lnvolvementtbecause he had "a statement from Dawn Stocker saying that she was the one that was renting" the property. See N. T., PCRA Hearing, 6/11/15, at 28, 30. Williams· avers that counsel was Ineffective in falling to call Dawn Stocker to testify that "she was the renter of the house when the place was raided on January 11 1h" to rebut Inspector Crisafulll's testimony that the police "came In looking for [him]": and, ''they didn't" because according to Williams "they went In for Denny lnokay, Dawn Stocker and another guy in there." Id: at 29. Williams Insisted that he "was not a target for that . house." Id, at 32. : ~- :: : .'. ::, \
While iH~ apparent that the witness existed and was willing to testify at trial ..... ::i.· .Ai~ornei::Shipi·~n ... ~~~t!f.!~d .~~at. he remembers _'1sp~~kl~g with (P~Yi!'I. §_~;~k~r)" and I , : :
ultimately'"d~clded not to call her as a witness" "because of credlblllty issues relate to ; : ..~.: : . her prio(_recor?,-'.' Id. at 45. Williams is however unable to show how the absence of Dawn Stooker's testimony prejudiced him. As this Court pointed out at the PCRA hearing, how is it."relevant fhatthe police went to another house that they believed-was Involved in methamphetamine" and "they thought [Williams) would be IA the house." Id. (emphasis: .added). That residence and its occupants may have been under investigation; however, the fact remains that, followlng a "trash pull" on January 16, 2013, outs/de of Williams' residence, 1415 Pine Street, evidence was uncovered and, the police obtained a search warrant. The search warrant was executed on January 17, 2013 andthe offj~ers seized (1) packs of cold compresses, which were cut open; (2) a • :.... ;:. •,:·• • : :• I can of Pres tone ·;Starting Fluid, unopened; (3) a box of baking soda; (4) two containers •;,lj I.
of salt; (5) .. a $·i)lall glass dish and aluminum foil; (6) an ammonia nitrate test kit; (7)
·,·. isopropyl a(coh~.1;. (8) a full~mouth facemask resplrator: and (9) a box containing meth *24 pipes. Accor~lngly, counsel cannot be deemed ineffective in falllng to call Dawn Stocker .. ..,·,,. .... }··;~> :·:
as a wltness:?s :her proffered testimony would have been Irrelevant and, not have aided : -, ' ·,· ·.'.: ...
··:(_:
fhe defense. · : ·.· : ..
.. :.: .... ·. ' ..
BY THE COURT:· s .. • . :•,
,i· ... . ·.; : -~ *25 .
. ' ... -- •,
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY COMMONWEAL TH OF PENNSYLVANIA CRIMINAL DIVISION COMMONWEAL TH OF PENNSYLVANIA
No. CP .. 48-CR·0001102"2013 v.
MICHAEL WILLIAMS,
Defendant . · . . r"~ ORDER OF COUR.T AND NQW, this /I) day of August, 2015, upon consideration of Defendant's, . . Michael ·Williams petition for relief filed pursuant to the Post-Convlctlon Relief Act .... .. ....... .... .....
(PCM)°, 42°PA .. CONS.STAT.ANN. §§ 9541-9546, said petition is hereby DENIEq.
BY THE COURT: '\ ~~ f~: ..
STEPHEN G, BA ATTA, P.J. ,•
,•