Com. v. Potter, M

J-S60011-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL ALPHONSE POTTER,

Appellant No. 3239 EDA 2014

Appeal from the PCRA Order Entered November 4, 2014

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0007337-2007

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 05, 2015

Appellant, Michael Alphonse Potter, appeals from the November 4,

2014 order denying his petition for relief filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant raises several

ineffective assistance of counsel claims regarding his trial counsel, Michael A.

Frisk, Jr.1 We affirm.

The PCRA court set forth the facts and procedural history of Appellant’s

case, as follows:

A jury found [Appellant] guilty of three counts of robbery,

one count of burglary, one count of aggravated assault, one

count of conspiracy to commit robbery, one count of conspiracy

to commit burglary and one count of criminal solicitation. The

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1

As will be discussed in more detail, infra, Mr. Frisk has been temporarily

disbarred. Therefore, we will refer to him herein as Mr. Frisk, rather than

Attorney Frisk.

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Honorable Paul W. Tressler, now retired, presided over the trial

and later imposed an aggregate sentence of 16 to 45 years in

prison. [Appellant] filed a direct appeal to the Pennsylvania

Superior Court, which affirmed the judgment of sentence.

Commonwealth v. Potter, No. [2028] EDA 2008,

Memorandum (April 6, 2009).

In his [Pa.R.A.P.] 1925(a) Opinion, Judge Tressler

explained that one of the robbery convictions was based upon

[Appellant’s] inflicting serious bodily injury on Joseph Hevener,

while the other two robbery convictions were based upon [his]

inflicting or threatening bodily injury on Hevener and his wife,

Nancy Hevener, respectively. The Opinion further detailed that

[Appellant], who was having an affair with Nancy Hevener[,]

recruited two others to enter the victims’ home as part of a

conspiracy to steal a large sum of cash they kept on hand.

One of the accomplices, Andrew Bing, testified that he met

[Appellant] and another accomplice, Tyreke Lawson, on

the morning of the burglary, and [Appellant] told Bing and

Lawson that the victims kept $400,000 cash in their home.

The three made a plan to steal the money while the

victims were at home. According to the plan, Bing and

Lawson would first enter the home and take the cash.

[Appellant] drove Bing and Lawson to the neighborhood

where the victims lived, parked his SUV in a concealed

spot and sent his co-conspirators on their way. The

burglary did not go as planned because the victims

resisted, and after a vicious struggle, Bing and Lawson fled

in a pickup truck owned by the victims. Joseph Hevener

suffered serious bodily injuries including a cut that

required approximately fifty stiches to close and

permanent visual impairment that resulted [from] an

attempt by one of the assailants to gouge out his eyes.

Opinion, Tressler, J., p. 2 (Sept. 18, 2008).

After the Superior Court affirmed the judgment of

sentence, [Appellant] did not file a petition for permission to

appeal to the Pennsylvania Supreme Court. His judgment of

sentence, thus, became final on May 6, 2009. The following

month, [Appellant] commenced post-conviction collateral

proceedings. Ultimately, the Superior Court reversed the

dismissals of [Appellant’s] petition for post[-]conviction relief

and a motion for new trial based on newly discovered evidence.

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Commonwealth v. Potter, [No.] 2789 EDA 2010,

Memorandum ([December 21, 2011]).[2]

On remand, [Appellant], through privately retained

counsel, filed an amended petition seeking post-conviction relief.

The petition alleged trial counsel ineffectiveness, prosecutorial

misconduct and an error in the trial court’s charge to the jury

regarding reasonable doubt. The Commonwealth filed an answer

and motion to dismiss the petition.

The undersigned, to whom the case had been reassigned,

held a hearing and after consideration of the record, the petition,

the Commonwealth’s response and the evidence presented at

the hearing, denied the petition by Order dated November 4,

2014. [Appellant] filed a notice of appeal to the Superior Court

and complied with this court’s directive to produce a Rule

1925(b) concise statement of errors.

PCRA Court Opinion (PCO), 1/27/15, at 1-3.

On appeal, Appellant presents three issues for our review:

a) Whether trial counsel was ineffective for failing to investigate

and cross[-]examine the Commonwealth’s key witness, Andrew

Bing[,] about his prior convictions?

b) Whether trial counsel was ineffective for failing to investigate

and cross[-]examine Andrew Bing about his probationary status

at the time of his testimony?

c) Whether trial counsel was ineffective for failing to investigate

[Appellant’s] alibi defense?

Appellant’s Brief at 3.

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2

This Court concluded that Appellant’s initial PCRA counsel acted

ineffectively by filing a deficient amended petition on Appellant’s behalf.

Potter, No. 2789 EDA 2010 at 7. Consequently, we vacated the PCRA

court’s order denying Appellant’s petition, and remanded for the

appointment of new counsel and the filing of an amended PCRA petition on

Appellant’s behalf. Id.

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Initially, we note that, “[t]his Court’s standard of review from the

grant or denial of post-conviction relief is limited to examining whether the

lower court’s determination is supported by the evidence of record and

whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d

516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352,

356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received

ineffective assistance of counsel, our Supreme Court has stated that:

[A] PCRA petitioner will be granted relief only when he proves,

by a preponderance of the evidence, that his conviction or

sentence resulted from the “[i]neffective assistance of counsel

which, in the circumstances of the particular case, so

undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.”

Generally, counsel’s performance is presumed to be

constitutionally adequate, and counsel will only be deemed

ineffective upon a sufficient showing by the petitioner. To obtain

relief, a petitioner must demonstrate that counsel’s performance

was deficient and that the deficiency prejudiced the petitioner. A

petitioner establishes prejudice when he demonstrates “that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” … [A] properly pled claim of ineffectiveness

posits that: (1) the underlying legal issue has arguable merit;

(2) counsel’s actions lacked an objective reasonable basis; and

(3) actual prejudice befell the petitioner from counsel’s act or

omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).3

____________________________________________

3

Before delving into the merits of Appellant’s issues, we note that

Appellant’s trial attorney, Mr. Frisk, testified at the PCRA hearing that he had

a substance abuse problem at the time he represented Appellant at trial, and

that his addiction subsequently led to a criminal conviction and a five-year

(Footnote Continued Next Page)

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In his first issue, Appellant asserts that Mr. Frisk rendered ineffective

assistance when he failed to cross-examine Commonwealth witness Andrew

Bing about his prior convictions. Appellant explains that “[a]t the time of

Appellant’s trial, [] Bing had a prior record that included four (4) Felony

convictions for selling drugs and conspiracy to sell drugs; a felony theft

conviction; a conviction for Hindering Apprehension[; and a conviction for]

False Swearing.” Appellant’s Brief at 14. Appellant argues that Mr. Frisk did

not adequately investigate Bing’s prior record and impeach him with these

prior convictions, which was unreasonable and prejudicial because Bing “was

the lynchpin of the prosecution’s case[,] as he was the only witness that

connected Appellant to the crime.” Id.

Before addressing Appellant’s argument, we begin by noting that

Appellant’s claim that Mr. Frisk acted ineffectively by not investigating

and/or cross-examining Bing regarding his prior ‘drug, conspiracy, and theft’

convictions was not raised in Appellant’s PCRA petition. Accordingly, it is

waived. See Amended PCRA Petition, 9/17/13, at 2, 8-9; Pa.R.A.P. 302(a)

_______________________

(Footnote Continued)

disbarment from the practice of law. See N.T. PCRA Hearing, 8/14/14, at 4-

6. In his brief to this Court, Appellant states that Mr. Frisk’s substance

abuse problem “impacted his representation of Appellant” and “led to a

constitutionally deficient representation at trial.” Id. at 12. However,

Appellant goes on to discuss counsel’s purported ineffectiveness without

specific elaboration on how Mr. Fisk’s substance abuse issues affected his

ability to represent Appellant. Appellant also does not cite any legal

authority to support a conclusion that Mr. Frisk’s addiction to drugs at the

time he represented Appellant, in and of itself, constitutes deficient

representation.

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(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”); Commonwealth v. Roney, 79 A.3d 595, 611

(Pa. 2013) (concluding that the appellant waived his “issue by his failure to

have raised it before the PCRA court”).

Additionally, Appellant has also failed to preserve this specific

assertion in his Rule 1925(b) statement, in which he presented this issue as

follows:

b) Trial counsel rendered ineffective assistance of counsel by

failing to impeach the Commonwealth’s key witness, Andrew

Bing, with his prior convictions for False Swearing [and]

Hindering Apprehension [or] Prosecution. At the PCRA

hearing, trial counsel testified that he did not check for the

witness’s prior record, and only learned about it through

questioning the witness. He acknowledged that he relied on the

witness to give his accurate criminal history, rather than

research it himself, and that he had no strategic reason for doing

that.

Rule 1925(b) Statement, 1/2/15, at 1-2 (citation to the record omitted;

emphasis added). Because Appellant only referred to Mr. Frisk’s failure to

investigate and cross-examine Bing regarding his prior convictions for false

swearing and hindering apprehension or prosecution, he has waived his

claim that Mr. Frisk acted ineffectively regarding Bing’s other convictions on

this basis, as well. See Commonwealth v. Hill, 16 A.3d 484, 494 (Pa.

2011) (“Our jurisprudence is clear and well-settled, and firmly establishes

that: Rule 1925(b) sets out a simple, bright-line rule, which obligates an

appellant to file and serve a Rule 1925(b) statement, when so ordered; any

issues not raised in a Rule 1925(b) statement will be deemed waived; the

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courts lack the authority to countenance deviations from the Rule’s terms;

the Rule’s provisions are not subject to ad hoc exceptions or selective

enforcement; [and] Rule 1925 violations may be raised by the appellate

court sua sponte….”).

In regard to Bing’s purported conviction for false swearing, the record

demonstrates that that charge was nolle prossed in December of 2004. See

PCO at 4 n.1 (citing N.T. PCRA Hearing, 8/14/14, at 88); see also

Appellant’s Brief, Exhibit “A” (summary of Bing’s prior criminal history).

Accordingly, Appellant has failed to prove that Mr. Frisk could have cross-

examined Bing about this prior charge, which did not result in a conviction,

and which was not outstanding or non-final at the time of Appellant’s trial.

See Pa.R.E. 609(a) (“For the purpose of attacking the credibility of any

witness, evidence that the witness has been convicted of a crime[] … must

be admitted if it involved dishonesty or false statement.”) (emphasis

added); see also Commonwealth v. Buksa, 655 A.2d 576, 580 (Pa.

Super. 1995) (“[W]henever a prosecution witness may be biased in favor of

the prosecution because of outstanding criminal charges or because of any

non-final criminal disposition against him within the same jurisdiction, that

possible bias, in fairness, must be made known to the jury.”).

Therefore, the only aspect of Appellant’s first issue that could entitle

him to relief is his allegation that Mr. Frisk acted ineffectively by not

investigating and/or cross-examining Bing about his prior conviction for

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hindering apprehension or prosecution. As Appellant acknowledges, Mr.

Frisk did ask Bing about his prior record, resulting in the following exchange:

[Mr. Frisk:] You have a prior record, don’t you, sir?

[Bing:] Yes, I do.

[Mr. Frisk:] What is that prior record?

[Bing:] Drugs and stolen auto, that’s it.

[Mr. Frisk:] Felonies?

[Bing:] Yes.

N.T. Trial, 4/8/08, at 63. Appellant contends that had Mr. Frisk properly

investigated Bing’s prior record, he could have impeached Bing’s testimony

by pointing out that Bing had also been convicted of hindering apprehension.

The PCRA rejected this claim for several reasons, including the

following:

The record from the trial indicates that [Mr.] Frisk cross-

examined Bing about his prior crimen falsi conviction for stealing

a car (N.T. 4/8/08, p. 63)…. The judge also noted Bing’s prior

crimen falsi conviction during his closing instructions to the jury,

and gave the jury a “corrupt and polluted source” instruction in

connection with Bing’s testimony. (N.T.[] 4/9/08, pp. 89-91)

While [Mr.] Frisk did not cross-examine Bing regarding a prior

conviction for hindering apprehension…, the jury was made

aware that Bing had a prior conviction involving an offense of

dishonesty…. Thus, [Mr. Frisk] cannot be deemed ineffective for

failing to pursue cumulative evidence.

PCO at 5-6.

The record supports the PCRA court’s determination that evidence of

Bing’s prior conviction for hindering apprehension or prosecution would have

been merely cumulative of the evidence that he was convicted of a crimen

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falsi theft offense. Accordingly, Appellant has not demonstrated that he was

prejudiced by Mr. Frisk’s failure to cross-examine Bing with this additional

conviction.4

Next, Appellant argues that Mr. Frisk’s representation was deficient

because he did not cross-examine Bing about the fact that Bing “was on

active probation during the commission of the crime on June 12, 2006, and

when he testified against Appellant.” Appellant’s Brief at 19. In support,

Appellant relies on our Supreme Court’s decision in Commonwealth v.

Murphy, 591 A.2d 278 (Pa. 1991), where the Court concluded that trial

counsel acted ineffectively by not cross-examining a key Commonwealth

witness, Wanda Wilson, regarding her juvenile probationary status at the

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4

We also agree with the PCRA court that Appellant failed to prove that

Bing’s hindering apprehension or prosecution offense was admissible as a

crimen falsi conviction. See PCO at 6. In Commonwealth v. Harris, 658

A.2d 811 (Pa. Super. 1995), this Court held that hindering apprehension or

prosecution, as defined in 18 Pa.C.S. § 5105(a)(4), is not necessarily a

crimen falsi offense, unless the underlying facts of the conviction

demonstrate that the defendant acted dishonestly or made false statements.

Id. at 813-814; see also 18 Pa.C.S. § 5105(a)(4) (stating a person

commits the offense of hindering apprehension or prosecution if they warn

another “of impending discovery or apprehension”). However, Harris did

indicate that a conviction for hindering apprehension or prosecution under

subparagraphs (1)-(3) and (5) of section 5105(a) would qualify as crimen

falsi offenses because they involve “some form of concealment, disguise, or

providing the authorities with false information….” Id. at 813-814 (internal

quotation marks omitted). Nevertheless, nothing in the record establishes

under which subpart of section 5105(a) Bing was convicted. Consequently,

Appellant has not proven that Bing’s prior conviction for hindering

apprehension or prosecution was a crimen falsi offense that Mr. Frisk could

have used to impeach Bing.

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time of Murphy’s trial. Id. at 280. Namely, in finding that Murphy was

prejudiced by counsel’s failure, our Supreme Court stated:

[Murphy] was clearly prejudiced by counsel's performance.

Wilson was the only eyewitness to the crime and her testimony

was crucial to the Commonwealth's case. Although the murder

of [the victim] occurred in 1981, it was only after Wilson was re-

interviewed and gave additional information to the police in 1985

that the Commonwealth was able to bring charges against

[Murphy]. It was incumbent upon defense counsel to bring to the

jury’s attention the possibility that [the witness] had a motive

for testifying against [Murphy], whether based upon a formal

agreement with the prosecution or a subjective belief that she

would receive favorable treatment with regard to her juvenile

probation. If defense counsel was able to show that [the

witness] was biased, it would have, in all probability, affected

the outcome of the proceeding.

Id. (footnote omitted). Relying on Murphy, Appellant maintains that Mr.

Frisk’s failure to cross-examine Bing regarding his probationary status

prejudiced Appellant.

While we accept that under Murphy, Appellant’s claim of

ineffectiveness has arguable merit, the record convinces us that Appellant

was not prejudiced by Mr. Frisk’s failure to cross-examine Bing about his

probationary status. Unlike in Murphy, the jury in this case was made

aware of the possibility that Bing had a motive for testifying against

Appellant, albeit for reasons other than a hope for favorable treatment in

Bing’s probation case. Specifically, during Bing’s direct examination, the

Commonwealth asked him if he understood that (1) by testifying against

Appellant, he was incriminating himself for various offenses, including

robbery, burglary, aggravated assault, and conspiracy to commit each of

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these offenses; and (2) each of those felony offenses carried a potential

sentence of 20 years’ incarceration. N.T. Trial, 4/8/08, at 61-62. Bing

indicated that he understood these facts. Id. at 62. He was then asked if

“any promises [had] been made to [him] in exchange for [his] testimony,”

to which Bing replied, “No.” Id. at 62.

Immediately after that question and answer, Mr. Frisk began his cross-

examination of Bing, as follows:

[Mr. Frisk:] Sir, you don’t recall a conversation you had with [the

prosecutor] at a preliminary hearing where he told you the more

you give us, the more we’ll give you? Sitting in the room, next

to – preparing to go into the preliminary hearing, [the

prosecutor] here said, the more you give us, the more we’ll give

you.

…

Is that correct?

[Bing:] Yes.

[Mr. Frisk:] So there were no promises made. Sounds like [the

prosecutor] has told you he will make promises; isn’t that true?

[Bing:] No. He didn’t make no promises, though.

Id. at 62-63.

Mr. Frisk also emphasized that, due to Bing’s prior record, he could

“serve the rest of [his] natural life in jail” if he were convicted of the crimes

listed by the Commonwealth. Id. at 64-65. Mr. Frisk then asked Bing, “And

the District Attorney has promised you leniency in your case for this

[testimony], correct?” Id. at 65. When Bing replied, “No, he hasn’t[,]”

Attorney Frisk stated: “You just told us [that the prosecutor] told you … the

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more you do for me, the more I’ll do for you. What does that mean to you?”

Id. Bing then reiterated that no promises were made to him in exchange for

testifying. Id.

In light of this record, the PCRA court concluded that Mr. Frisk

adequately “cross-examined Bing about … the potential that Bing may have

expected leniency in his own case related to the incident in return for

testifying.” PCO at 5. The court noted that “[w]hile [Mr.] Frisk did not

cross-examine Bing regarding … his probationary status at the time of trial,

the jury was made aware … [of Bing’s] potential Bias.” Id. at 4-5.

Ultimately, the PCRA court concluded that the evidence of Bing’s

probationary status would have been cumulative. We agree. Based on Mr.

Frisk’s impeaching Bing, and emphasizing Bing’s possible bias and

motivation for testifying against Appellant, we conclude that Appellant was

not prejudiced by Mr. Frisk’s failure to present cumulative evidence of Bing’s

probationary status.

Finally, Appellant contends that Mr. Frisk acted ineffectively by failing

to investigate Appellant’s alibi defense. Initially, we agree with the

Commonwealth that Appellant does not present a clear argument regarding

what his alibi actually was. For instance, in his amended PCRA petition,

Appellant stated that he “has consistently claimed that he was at the

Philadelphia Sporting Club in Philadelphia at the time the crime was

committed.” Amended PCRA Petition, 9/17/13, at 11. Appellant further

argued that, had Mr. Frisk investigated this alibi, he could have obtained

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evidence that Appellant “checked in [to the Sporting Club] that morning and

played basketball with other members at the club.” Id. at 13. Appellant

contended that “[i]t is unimaginable that trial counsel never contacted the

club to ascertain whether [Appellant] entered the facility on the date in

question, and he never sought to interview any club members … who would

have been able to confirm [Appellant’s] presence at the club that day.” Id.

At the PCRA hearing, Appellant continued to maintain that his alibi

defense was premised on his being at the Sporting Club in Philadelphia at

the time of the crimes. In this regard, his PCRA counsel questioned Mr. Frisk

as follows:

[Appellant’s Counsel:] Did you take any steps at all to

investigate whether or not [Appellant] was actually at the

Philadelphia Sporting Club at the time of this crime?

[Mr. Frisk:] No.

[Appellant’s Counsel:] Did you go and ask for any video evidence

from the Sporting Club or did you actually go to the Sporting

Club or did you check and see whether he was a member there

or interview any witnesses that might have been there at the

time in any way?

[Mr. Frisk:] No.

[Appellant’s Counsel:] But you were aware from [Appellant] that

he maintained that he was there during this trial and before the

trial?

[Mr. Frisk:] Yes.

[Appellant’s Counsel:] Did you have any strategic reason for not

taking those steps to investigate any potential alibi?

[Mr. Frisk:] No, sir.

PCRA Hearing, 8/14/14, at 22.

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To refute Appellant’s claim that he was at the Sporting Club at the

time of the robbery, the Commonwealth presented at the PCRA hearing the

testimony of Laura Bruce, an employee of the club. Ms. Bruce testified that

in 2006, members of the Sporting Club were required to check-in and

present a membership card before entering. Id. at 45-46. The

Commonwealth admitted into evidence, and presented to Ms. Bruce, a

document that Ms. Bruce identified as a “visit listing,” which demonstrated

that Appellant checked into the Sporting Club at 10:59 a.m. on June 12,

2006, well after the early morning robbery at the Heveners’ residence. Id.

at 46-49.

Now, on appeal, Appellant seemingly abandons his alibi defense that

he was at the Sporting Club in Philadelphia, instead averring that Mr. Frisk

was ineffective for not investigating whether Appellant was in Atlantic City,

New Jersey, the night before (and, presumably, the morning of) the robbery.

See N.T. Trial, 4/9/08, at 23-24. It seems that this was the alibi asserted

by Appellant during his trial testimony, wherein he stated that on the night

of June 11, 2006, he went to Atlantic City, New Jersey, and did not return to

the Philadelphia area until “around 5:00 o’clock in the morning….” N.T.

Trial, 4/9/08, at 23-24. Appellant further claimed that he “was going to the

gym to play basketball at six.” Id. at 24. On cross-examination, the

Commonwealth questioned Appellant as follows:

[The Commonwealth:] Can anybody verify that you were in

Atlantic City the night before?

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[Appellant:] Yeah. Actually, I could probably get documentation

from the casinos that I was at. Only because whenever you’re a

medium to high roller, as they call it, … you check-in with a card.

That keeps track of how much money you spent, average bet.

Anyone that goes to the casinos knows that.

[The Commonwealth:] Do you have it?

[Appellant:] Didn’t know I would need that. Again, I can provide

that for you if you need it.

Id. at 43. Appellant now maintains that “[i]f the documentation that []

[A]ppellant referred to existed, then it is without question that Appellant was

prejudiced by counsel’s failure to investigate and obtain those records.”

Appellant’s Brief at 26.

Appellant’s argument is insufficient to demonstrate that Mr. Frisk’s

purported failure to investigate either of his alibi defenses prejudiced

Appellant. Ms. Bruce’s testimony at the PCRA hearing refuted Appellant’s

claim that he was at the Sporting Club in Philadelphia at the time the

Heveners were robbed. Thus, Appellant has not established that an

investigation by Mr. Frisk into this alibi would have aided Appellant’s

defense, let alone changed the outcome of his trial. Likewise, Appellant

presented no evidence to the PCRA court to support his alibi that he was in

Atlantic City at the time of the crime. Therefore, he has not established that

Mr. Frisk’s investigation of this alibi would have resulted in a different

verdict.5

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5

We note that Appellant also argues herein that Mr. Frisk was ineffective for

not investigating Appellant’s alibi because, had counsel done so and

discovered that it “could not [be] verified, [Mr. Frisk] may have counseled

(Footnote Continued Next Page)

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In sum, we conclude that none of Appellant’s claims of Attorney Frisk’s

ineffectiveness warrants relief. Therefore, the PCRA court did not err in

denying his petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/5/2015

_______________________

(Footnote Continued)

Appellant that testifying about an alibi without proof may not have been in

his best interest, especially in light of the fact that the Commonwealth’s case

was flimsy.” Appellant’s Brief at 27. This argument was not raised in

Appellant’s PCRA petition. Therefore, it is waived. See Pa.R.A.P. 302(a);

Roney, 79 A.3d at 611.

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