Com. v. Kennedy, J.

J-S03005-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JERMAINE LEMAR KENNEDY,

Appellant No. 1913 WDA 2015

Appeal from the PCRA Order of November 17, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0013109-2014

BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 22, 2017

Appellant, Jermaine Lemar Kennedy, appeals from the order entered

on November 17, 2015, which dismissed his petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On March 3, 2015, Appellant entered a negotiated guilty plea at three

criminal docket numbers. Under the plea agreement, Appellant agreed to

plead guilty to: two counts of possession of a controlled substance with the

intent to deliver (“PWID”); three counts of possession of a controlled

substance; three counts of possession of a firearm by a prohibited person;

and, one count each of receiving stolen property, criminal use of a

* Retired Senior Judge assigned to the Superior Court.

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communications facility, and possession of drug paraphernalia.1 In

exchange, the Commonwealth agreed to withdraw one count of PWID and

recommend an aggregate sentence of four to eight years in prison, followed

by five years of probation.

During the guilty plea hearing, the Commonwealth set forth the factual

basis for Appellant’s guilty plea:

Your Honor, had Case No. 2014-14631 gone to trial, the

Commonwealth would have called as its witnesses City of

Pittsburgh Police Officers Glavach [], Novosel []; and from

the Allegheny County Medical Examiner’s Office, Emily Ashy.

They would testify substantially as follows:

That on August the 7th, 2014, the officers mentioned

observed what they believed to be a drug transaction

between [Appellant] and an individual named Adam Todd.

They pursued Mr. Todd and, in fact, recovered heroin from

him. They then went back and got [Appellant] who was in

or at his Mercedes automobile and took him into custody. A

search was made. They recovered additional heroin. Mr.

Todd had ten stamp bags marked “HEART ATTACK” in red

ink, and there were four stamp bags marked “RICH” in red

ink. [Appellant] had $101 in [United States] currency and

three cell phones.

The drugs were turned over to the Allegheny County

Medical Examiner’s Office for testing. . . . The weight of the

heroin was 0.67 grams and tested positive for heroin. . . .

The car was towed by the police. Subsequently[,] the police

received information from an informant that there were

more drugs to be found in the car. And so at Case No.

2014-13098, the Commonwealth would call City of

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35 P.S. § 780-113(a)(30) and (16), 18 Pa.C.S.A. §§ 6105(a)(1), 3925(a),

and 7512(a), and 35 P.S. § 780-113(a)(32), respectively.

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Pittsburgh Police Officers Brian Martin[,] Brian Burgunder, []

William Churilla, [] Walter Jones[,] and Jeffrey Deschon[.]

Having received information from the informant there were

more drugs in the car, they took a K-9 officer on August the

15th to the impound lot. The dog hit on the car, and as a

result, the officers obtained a search warrant for the car

resulting in the recovery of [69] blue stamp bags marked

“MTV” each holding tan powder, [68] stamp bags – excuse

me, [12] stamp bags stamped “Buzz Light Year” or with a

Buzz Lightyear picture each holding tan powder, five stamp

bags stamped “Heart Attack” each holding tan powder,

three stamp bags marked “Black Jack” each holding tan

powder, and three stamp bags stamped “Rich” each holding

tan powder, and one each of stamp bags marked “Focus”

and “Chi-Raq”. . . . The material tested positive for heroin.

. . . The approximate weight was 1.592 grams. There was

an additional knotted baggie of off-white solids that tested

positive for cocaine. That weighed .518 grams.

It would be the officer’s opinion, based on their training and

experience, the quantity of heroin, that the heroin was

possessed in that case with the intent to deliver.

As a result of finding the heroin pursuant to the search

warrant, an arrest warrant was issued for [Appellant] for

that material, the heroin and the cocaine; and on

September the 11th, 2014, at Case No. 2014-13109, the

Commonwealth would call Detective Sheila Ladner[,]

Detective Joseph Novakowski[,] Detective Matt Truesdell[,]

Detective Anthony Palermo[,] and from the Allegheny

County Crime Lab, Jason Very, Nicole James[,] civilian

witness, John Ciangiarulo[], and Ryan Young from the

Pittsburgh Police. They would testify that an attempt was

made to locate [Appellant] on the warrant issued from the

previous case. They located him in the McKees Rocks area,

and he was going in and out of a house on Olivia, but they

weren’t sure which one, and he was seen going to a black

Mercedes, not the same black Mercedes that was involved in

the first case. He was seen at and in the trunk of the car.

Detective Ladner placed phone calls and text messages to a

phone belonging to [Appellant] and arranged to buy a

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bundle of heroin from [Appellant] in the McKees Rocks area

under a bridge.

Once the meet was set, the detectives who were watching

the street observed [Appellant] leave the house on Olivia,

go over to the trunk of the car, open it, take something out

and then head down . . . towards the bridge at which time

United States Marshals and City of Pittsburgh Police

apprehended him. At the time they apprehended him, he

was on his cell phone with Detective Ladner. She was

giving him directions on where she was, and she’d testify

that she actually heard [Appellant] – the beginning of the

attempt to take [Appellant] into custody over the phone.

[Appellant] was searched incident to arrest and found to

have a bundle of ten blue stamp bags marked “DRAFT,” []

on his person as well as $60 in cash . . . and they recovered

the cell phone.

Once he was taken into custody, they sat on the black

Mercedes that he had gone to before he went to make the

deal and obtained a search warrant for it. When they

executed the search warrant, they recovered Exhibit 2, a

gray Atlanta Braves drawstring bag which contained the

following: [a] plastic sandwich bag containing two bundles

and seven loose bags of heroin marked “DRAFT,” [] in blue

ink that matched the bundle [Appellant] had on his person

when he was taken into custody.

There was also a Ziploc bag containing one knotted baggie

of loose crack cocaine and one knotted baggie containing a

number of knotted baggie corners of crack cocaine.

There was also a brown box which contained [36] white

unmarked bags of heroin, one Scotch Tape roll, . . . two

stamp pads and two wooden stampers, neither of which was

the “DRAFT” stamp.

They also recovered a Ziploc baggie of marijuana and a

plastic bag containing multiple bundles of heroin marked

with a red stamp. The stamp itself was unreadable.

There was also a pack of Juicy Fruit gum and a black digital

scale.

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Then there were three additional Ziploc baggies each of

which contained a handgun. One contained a loaded

Beretta [92FS] 9-millimeter semiautomatic. . . . One

contained a loaded Israel Military Industries Desert Eagle 9-

millimeter semiautomatic handgun. . . . That gun had been

reported stolen by Mr. Ciangiarulo approximately eight

months earlier from his residence in McKees Rocks. And the

third one was an FIE .22 caliber Model T18 revolver. . . .

We would introduce documents that were recovered from

the car in [Appellant’s] name; specifically, purchase

documents for the Mercedes that had been seized earlier as

well as a financial responsibility card for the Mercedes that

had been seized earlier in the first case that led to all of

this.

The drugs were turned over to the Allegheny County

Medical Examiner’s Office. . . . The total weight of the

heroin on [Appellant] was . . . in excess of .25 grams. . . .

There was a calculated collective net weight of slightly over

one gram of the [27] blue stamp bags. There was the

cocaine base. The crack cocaine weighed 5.815 grams.

That was the baggie of it. And then the multiple baggies

had a collective gross weight of 2.091 grams. There was

also .839 grams in the exhibit holding the [36] white stamp

bags. . . . The marijuana weighed 14.923 grams. . . .

The guns were all examined and test-fired, and they were

all found to be in good operating condition.

It would be the officer’s opinion, based on their training and

experience, the quantity of heroin, the possession of the

digital scale, the ink pads, the stampers, the multiple stamp

bags with the different stamp bags, the lack of any use

paraphernalia, the fact that [Appellant] engaged in

conversation with the detective to make a sale and, in fact,

went to make a sale of heroin, that he possessed the heroin

as well as the crack cocaine with intent to deliver and not

solely for personal use. There was no paraphernalia

whatsoever for the crack cocaine.

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We would also introduce evidence that [Appellant] had two

prior felony drug convictions which would make him a

person who is not permitted to possess a firearm. . . .

N.T. Guilty Plea and Sentence, 3/3/15, at 6-12.

At the conclusion of the factual recitation, Appellant testified that he

was “pleading guilty to [the] charges because [he is], in fact, guilty.” Id. at

12-13. The trial court then sentenced Appellant in accordance with the

negotiated term of incarceration; specifically, the trial court sentenced

Appellant to serve an aggregate term of four to eight years in prison,

followed by five years of probation, for his convictions. Id. at 14-15.

On April 20, 2015, Appellant filed an untimely, pro se “Motion to

Withdraw Guilty Plea.” Within the motion, Appellant requested to withdraw

his guilty plea for a number of reasons, including: 1) “counsel was

ineffective for fail[ing] to present [Appellant’s] mental health status before

sentencing in court for mitigating circumstances;” 2) “counsel [was]

ineffective . . . for not filing [a] suppression [motion] as requested by

[Appellant];” 3) “counsel was [] ineffective for nondisclosure of discovery;”

and, 4) “guilty plea was coerced due to misrepresentation by counsel and

the apology to trial judge while taking the plea.” Appellant’s “Motion to

Withdraw Guilty Plea,” 4/20/15, at 1-3.

The trial court correctly construed Appellant’s untimely motion as a

first petition filed under the PCRA. See Commonwealth v. Johnson, 803

A.2d 1291, 1293 (Pa. Super. 2002) (“the PCRA provides the sole means for

obtaining collateral review, and [] any petition filed after the judgment of

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sentence becomes final will be treated as a PCRA petition”). Therefore, the

trial court appointed counsel to represent Appellant during the PCRA

proceedings. PCRA Court Order, 4/28/15, at 1. However, on September 2,

2015, appointed counsel filed a no-merit letter and a request to withdraw as

counsel, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

After reviewing counsel’s no-merit letter, the PCRA court granted counsel’s

petition to withdraw and issued Appellant notice, pursuant to Pennsylvania

Rule of Criminal Procedure 907, of its intent to dismiss Appellant’s petition in

20 days, without holding a hearing. PCRA Court Order, 10/21/15, at 1-3.

Appellant did not file a meaningful response to the PCRA court’s Rule

907 notice and, on November 17, 2015, the PCRA court finally dismissed

Appellant’s petition. PCRA Court Order, 11/17/15, at 1.

Appellant filed a timely, pro se notice of appeal from the PCRA court’s

order and the PCRA court appointed counsel to represent Appellant on this

appeal. See PCRA Court Order, 2/4/16, at 1.2 Appellant raises one claim on

appeal:

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2

The PCRA court did not order Appellant to file a concise statement of errors

complained of on appeal, pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b). Moreover, although Appellant filed a purported Rule

1925(b) statement pro se, Appellant only did so after the PCRA court

appointed counsel to represent him on appeal. See Appellant’s Pro Se Rule

1925(b) Statement, 2/16/16, at 1. Therefore, since Appellant filed his pro

se Rule 1925(b) statement while he was represented by counsel, we will not

hold that Appellant’s pro se Rule 1925(b) statement constricts the claims he

(Footnote Continued Next Page)

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Did the [PCRA] court err as a matter of law in refusing to

grant relief on the [PCRA] petition in the form of permitting

[Appellant] to withdraw his guilty plea due to the ineffective

assistance of counsel?

Appellant’s Brief at 5.

As we have stated:

[t]his Court’s standard of review regarding an order

dismissing a petition under the PCRA is whether the

determination of the PCRA court is supported by evidence of

record and is free of legal error. In evaluating a PCRA

court’s decision, our scope of review is limited to the

findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the prevailing party at

the trial level. We may affirm a PCRA court’s decision on

any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).

_______________________

(Footnote Continued)

is entitled to raise on appeal. See Commonwealth v. Ellis, 626 A.2d

1137, 1139 (Pa. 1993) (“there is no constitutional right to hybrid

representation either at trial or on appeal”); Commonwealth v. Pursell,

724 A.2d 293, 302 (Pa. 1999) (“[w]e will not require courts considering

PCRA petitions to struggle through the pro se filings of [petitioners] when

qualified counsel represent[s] those [petitioners]”); Commonwealth v.

Ruiz, 131 A.3d 54, 56 n.4 (Pa. Super. 2015) (the defendant’s “pro se

motion to modify sentence . . . was a legal nullity . . . [because] he was

represented by counsel” at the time); Pa.R.Crim.P. 576(A)(4) (where a

represented criminal defendant submits a pro se document for filing, “the

clerk of courts shall accept it for filing, time stamp it with the date of receipt

and make a docket entry reflecting the date of receipt, [] place the

document in the criminal case file[, and forward a copy of the document] to

the defendant’s attorney and the attorney for the Commonwealth”);

Pa.R.Crim.P. 576 cmt. (Rule 576(A)(4)’s “requirement that the clerk time

stamp and make docket entries of the filings in these cases only serves to

provide a record of the filing, and does not trigger any deadline nor require

any response”).

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To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.” Rivera, 10 A.3d at

1279. To satisfy this burden, Appellant must plead and prove by a

preponderance of the evidence that:

(1) his underlying claim is of arguable merit; (2) the

particular course of conduct pursued by counsel did not

have some reasonable basis designed to effectuate his

interests; and, (3) but for counsel’s ineffectiveness, there is

a reasonable probability that the outcome of the challenged

proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Id.

To establish the reasonable basis prong, we must look to see whether

trial counsel’s strategy was “so unreasonable that no competent lawyer

would have chosen that course of conduct.” Commonwealth v. Williams,

640 A.2d 1251, 1265 (Pa. 1994). An attorney’s trial strategy “will not be

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found to have lacked a reasonable basis unless it is proven that an

alternative not chosen offered a potential for success substantially greater

than the course actually pursued.” Commonwealth v. Howard, 719 A.2d

233, 237 (Pa. 1998). Further, if an appellant has clearly not met the

prejudice prong, a court may dismiss the claim on that basis alone and need

not determine whether the other two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

We also note that “[a] criminal defendant has the right to effective

counsel during a plea process as well as during trial.” Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). Yet, where the

ineffectiveness of counsel is claimed in connection with the entry of a guilty

plea, a petitioner may only obtain relief where “counsel’s deficient

stewardship resulted in a manifest injustice, for example, by facilitating [the]

entry of an unknowing, involuntary, or unintelligent plea.” Commonwealth

v. Moser, 921 A.2d 526, 530 n.3 (Pa. Super. 2007) (en banc) (internal

citations and quotations omitted). As we have explained:

once a defendant has entered a plea of guilty, it is

presumed that he was aware of what he was doing, and the

burden of proving involuntariness is upon him. Therefore,

where the record clearly demonstrates that a guilty plea

colloquy was conducted, during which it became evident

that the defendant understood the nature of the charges

against him, the voluntariness of the plea is established.

Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (internal

quotations, citations, and corrections omitted), quoting Commonwealth v.

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Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994). “To prove prejudice, [an]

appellant must prove he would not have [pleaded] guilty and would have

achieved a better outcome at trial.” Commonwealth v. Fears, 86 A.3d

795 (Pa. 2014) (internal quotations and citations omitted).

According to Appellant, his trial counsel was ineffective for failing to

file a suppression motion and for failing to inform the trial court about his

“mental health issues.” Appellant’s Brief at 17.3 These claims fail.

First, with respect to counsel’s failure to file a suppression motion, the

claim of ineffectiveness fails because Appellant never specified the possible

basis for a suppression motion in his PCRA petition or in his brief to this

Court and Appellant thus never claimed or argued that: the unarticulated

suppression claim had arguable merit; counsel’s failure to file the

suppression motion lacked “some reasonable basis designed to effectuate his

interests;” or, Appellant suffered prejudice as a result of counsel’s alleged

failing. Fulton, 830 A.2d at 572. The claim thus immediately fails.

With respect to Appellant’s claim that his trial counsel was ineffective

for failing to inform the trial court about Appellant’s “mental health issues,”

the claim likewise fails because Appellant never pleaded or claimed that he

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Within Appellant’s brief to this Court, Appellant also claims that counsel

was ineffective for failing to inform the prosecution about his “mental health

issues.” Appellant’s Brief at 14 and 17. Appellant never raised this claim in

his PCRA petition; as such, the claim is waived. Fulton, 830 A.2d at 572;

Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal”).

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suffered from some specific, identifiable “mental health issue” and Appellant

never pleaded or claimed that the trial court would have acted any

differently had it known of Appellant’s alleged “mental health issue.” See

Fulton, 830 A.2d at 572.

Therefore, Appellant’s claims on appeal fail.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/2017

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