Com. v. Harris, A., Jr.

J-S46033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

AARON F. HARRIS, JR. :

:

Appellant : No. 210 MDA 2017

Appeal from the PCRA Order January 3, 2017

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0001185-2014

BEFORE: BOWES, OLSON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 27, 2017

Appellant, Aaron F. Harris, Jr., appeals from the January 3, 2017,

order entered in the Court of Common Pleas of Centre County dismissing his

first petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546, without an evidentiary hearing. After a careful review, we

affirm.

This Court has previously set forth the relevant facts and procedural

history, in part, as follows:

In the instant case, the testimony showed

[Appellant] possessed heroin with the intent to

deliver over the span of the days between October

31, 2012[,] and November 5, 2012, which led to the

charge of Possession with Intent to Deliver.

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*

Former Justice specially assigned to the Superior Court.

J-S46033-17

Evidence also showed Appellant completed two

deliveries to Timothy Wilson on October 31, 2012[,]

and November 2, 2012, for which he was charged

with two counts of Delivery of a Controlled

Substance.

***

[I]ntercepted text messages and calls,

surveillance video, and eyewitness testimony also

showed Appellant possessed heroin with the intent to

deliver on November 3, 2012[,] and that the heroin

Appellant possessed was ultimately delivered to

individuals at a nearby school and the Arena Bar and

Grill that evening by Appellant and Mr. Wilson.

Contacts between Appellant and Mr. Wilson

established Appellant was bringing heroin to Mr.

Wilson that day, and Mr. Wilson had several

individuals who wished to purchase said heroin.

Once Appellant arrived at Mr. Wilson’s home, a

phone call was intercepted between Mr. Wilson and

Melissa Colby. During that phone call, Mr. Wilson

indicated he had just received heroin from Appellant

and would be using the heroin himself to test the

quality.

Approximately a half hour later, another phone

call was intercepted in which Mr. Wilson and Ms.

Colby ma[d]e arrangements for Mr. Wilson and

Appellant to meet her at a nearby school for a heroin

purchase, after [Mr. Wilson] [took] heroin to his

paramour, Colleen Berrigan, who [was] working at

the Arena Bar and Grill. Shortly after that phone

call, Mr. Wilson and Appellant were observed exiting

Appellant’s vehicle at the Arena [Bar and Grill] and

entering the restaurant. After Appellant and Mr.

Wilson left the Arena Bar and Grill, another phone

call was intercepted in which Mr. Wilson indicated to

Ms. Colby they had arrived at the Fairmont school.

Ms. Colby indicated she would be along in a few

moments to pick up the heroin.

Evidence also demonstrated Appellant

possessed heroin with the intent to deliver on

November 5, 2012, and did in fact deliver it to Mr.

Wilson at his residence. Again, phone calls and text

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messages were intercepted between Mr. Wilson and

Appellant indicating Appellant was travelling to State

College with heroin for Mr. Wilson to distribute.

Later, messages indicated the vehicle Appellant was

driving had a flat tire and the vehicle was

consequently towed to a garage in Milesburg for

repair. Mr. Wilson contacted Appellant approximately

a half an hour later via text message, asking if the

vehicle had [been] repaired yet as he still had

several people waiting to make heroin purchases.

Later that evening, the vehicle Appellant was

driving was observed leaving Milesburg, stopping at

a gas station, then leaving the gas station and

turning onto Mr. Wilson’s street, at which point

surveillance was discontinued. The next day, Mr.

Wilson left a voicemail for Appellant, indicating there

[were] many individuals in town who still wish[ed] to

purchase heroin and it would be worthwhile for

Appellant to return to State College with more

heroin.

Trial Court Opinion, 4/9/15, at 2-3.

At the conclusion of a bench trial on October 27, 2014, [at

which Appellant was represented by counsel,] Appellant was

found guilty of [two counts of delivery of a controlled substance

and one count each of possession with the intent to deliver a

controlled substance, criminal use of a communication facility,

and criminal conspiracy.1] [H]e was sentenced to an aggregate

of 64-200 months’ imprisonment. The trial court denied

Appellant’s post-sentence motion on February 17, 2015.

Appellant filed a notice of appeal with the trial court on February

23, 2015, and complied with the trial court’s order requiring

Appellant to produce a concise statement of errors complained of

on appeal, pursuant to Pa.R.A.P. 1925(b). The trial court then

filed its opinion on April 9, 2015.

[On appeal, Appellant raised the following issues:]

1. Whether the sentence for Count Number 1,

Possession with the Intent to Deliver Controlled

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1

35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. §§ 7512(a) and 903,

respectively.

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Substance, merges with sentences for Count

Numbers 3 and 4, Delivery of a Controlled

Substance.

2. Whether the trial court abused its discretion by

admitting the testimony of Thomas Moore, a so-

called “expert witness” in the field of coded

language.

Commonwealth v. Harris, No. 360 MDA 2015, at 1-4 (Pa.Super. filed

11/6/15) (unpublished memorandum) (footnote added).

After a careful review, this Court found no merit to Appellant’s issues,

and consequently, this Court affirmed his judgment of sentence. See id.

Appellant did not file a petition for allowance of appeal to our Supreme

Court.

On February 22, 2016, Appellant filed a timely pro se PCRA petition,2

and the PCRA court appointed counsel, who filed an amended PCRA petition

on behalf of Appellant on July 6, 2016. The Commonwealth filed an answer

to Appellant’s amended PCRA petition, and on December 14, 2016, the PCRA

court provided Appellant with notice of its intent to dismiss the petition

without an evidentiary hearing. PCRA counsel filed a response to the PCRA

court’s notice, and by order entered on January 3, 2017, the PCRA court

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2

Appellant’s pro se PCRA petition was time-stamped on March 4, 2016;

however, the envelope in which Appellant mailed the petition bears a

postage stamp of February 22, 2016. Although this discrepancy does not

affect our disposition of this case, under the prisoner mailbox rule, we shall

deem Appellant’s petition to have been filed on February 22, 2016. See

Commonwealth v. Brandon, 51 A.3d 231, 234 n.5 (Pa.Super. 2012).

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dismissed Appellant’s PCRA petition. This timely, counseled appeal followed.

The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) statement,

counsel timely complied, and the PCRA court filed an opinion.

Appellant presents the following issues on appeal:

1. Did the [PCRA] court err in concluding that there was

sufficient evidence to support a conviction in all possession

with [the] intent to deliver and delivery charges so that

[direct appeal counsel] was not ineffective in failing to raise

the issue on direct appeal?

2. Did the [PCRA] court err in failing to find [Appellant’s] trial

counsel ineffective as a result of his failure to object to

testimony of Agent [Thomas] Moore that extended beyond his

expertise in coded language?

3. Did the [PCRA] court err in concluding that there were

hearsay statements that were properly admitted under the

co-conspirator exception, and therefore [Appellant’s] trial

counsel was not ineffective in failing to object to the

statements?

4. Did the [PCRA] court err in concluding that, in consideration

of the record, no genuine issues of material fact existed?

5. Did the [PCRA] court err and/or abuse [its] discretion in

dismissing [Appellant’s] PCRA petition without the benefit of a

hearing as it relates to [the above stated issues]?

Appellant’s Brief at 4.3

When reviewing the denial of a PCRA petition, we must

determine whether the PCRA court’s order is supported by the

record and free of legal error. Generally, we are bound by a

PCRA court’s credibility determinations. However, with regard to

a court’s legal conclusions, we apply a de novo standard.

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3

We have renumbered Appellant’s issues for the ease of discussion.

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Commonwealth v. Johnson, --- Pa. ---, ---, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted).

Furthermore,

In order to be eligible for PCRA relief, the petitioner must

prove by a preponderance of the evidence that his conviction or

sentence resulted from one or more of the enumerated

circumstances found in Section 9543(a)(2), which includes the

ineffective assistance of counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).

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. To prevail on an ineffectiveness

claim, the petitioner has the burden to prove that (1) the

underlying substantive claim has arguable merit; (2) counsel

whose effectiveness is being challenged did not have a

reasonable basis for his or her actions or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s deficient

performance. The failure to satisfy any one of the prongs will

cause the entire claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa.Super. 2016)

(quotation marks, quotations, and citations omitted).

We need not analyze the prongs of an ineffectiveness claim

in any particular order. Rather, we may discuss first any prong

that an appellant cannot satisfy under the prevailing law and the

applicable facts and circumstances of the case. Finally, counsel

cannot be deemed ineffective for failing to raise a meritless

claim.

Johnson, --- Pa. at ---, 139 A.3d at 1272 (citations omitted).

In his first argument, Appellant contends that direct appeal counsel

was ineffective in failing to raise on direct appeal the issue of whether the

evidence was sufficient to sustain his conviction on two counts of delivery of

a controlled substance (one on October 31, 2012, and one on November 2,

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2012), as well as one count of possession with the intent to deliver a

controlled substance (from October 31, 2012, to November 5, 2012).

Specifically, he argues the Commonwealth failed to prove that the identity of

the substance at issue was, in fact, a controlled substance (heroin).4

With regard to Appellant’s underlying substantive claim, we note the

following:

Our standard of review for a challenge to the sufficiency of

the evidence is to determine whether, when viewed in a light

most favorable to the verdict winner, the evidence at trial and all

reasonable inferences therefrom are sufficient for the trier of fact

to find that each element of the crimes charged is established

beyond a reasonable doubt. The Commonwealth may sustain its

burden of proving every element of the crime beyond a

reasonable doubt by means of wholly circumstantial evidence.

[T]he facts and circumstances established by the

Commonwealth need not preclude every possibility of innocence.

Any doubt raised as to the accused's guilt is to be resolved by

the fact-finder. As an appellate court, we do not assess

credibility nor do we assign weight to any of the testimony of

record. Therefore, we will not disturb the verdict unless the

evidence is so weak and inconclusive that as a matter of law no

probability of fact may be drawn from the combined

circumstances.

Commonwealth v. Knox, --- A.3d ---, 2017 WL 2417826, *1 (Pa.Super.

filed 6/5/17) (citations, quotation marks, and quotations omitted).

It is...well-established in this Commonwealth that the

identity of illegal narcotic substances may be established by

____________________________________________

4

As Appellant has limited his underlying sufficiency of the evidence claim,

we find it unnecessary to set forth or analyze the remaining elements of

delivery of a controlled substance or possession with the intent to deliver a

controlled substance.

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J-S46033-17

circumstantial evidence alone, without any chemical analysis of

the seized contraband. Such a policy indicates that the courts

will not, in cases involving the sale or use of illegal drugs,

constrict their fact-finding function in regard to the identity of

drugs to a strict scientific analysis, but will rather permit the use

of common sense and reasonable inferences in the determination

of the identity of such substances.

Commonwealth v. Minott, 577 A.2d 928, 932 (Pa.Super. 1990) (citations

omitted).

Here, in finding no merit to Appellant’s underlying sufficiency claim,

the PCRA court indicated the following:

In the case at bar, the totality of the evidence presented at

trial sufficiently established [Appellant] possessed heroin with an

intent to deliver, delivered heroin on October 31, 2012, and

delivered heroin on November 2, 2012. The Commonwealth’s

evidence at trial consisted of the following: intercepted

communications between [Appellant] and co-conspirators

Timothy Wilson, Colleen Berrigan, David Immel, Melissa Colby,

and Donnee Gordon; intercepted communications between said

co-conspirators which discussed [Appellant’s] possession and

delivery of controlled substances; interpretation of language

used in said communications by Agent Moore, who had been

qualified and accepted as an expert in coded language and drug

deliveries; testimony of surveillance agents; and the testimony

of Timothy Wilson and Colleen Berrigan, who were co-

conspirators.[5] This evidence, when considered in its entirety,

clearly presented sufficient circumstantial evidence from which

the Court could conclude [Appellant] engaged in each controlled

substance delivery for which he was charged and that

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5

Mr. Wilson testified at trial that he travelled with Appellant to make heroin

deliveries and the quality of Appellant’s heroin was not that good, but it

would “get you well[.]” N.T., 10/27/14, at 129. Ms. Berrigan testified at

trial that she had a heroin addiction to the point that, without heroin, she

would become physically sick. Id. at 143. She testified that the heroin,

which Appellant provided to her, “kept [her] well.” Id.

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[Appellant] engaged in the possession of a controlled substance

with intent to deliver. The calls set up the players, the time, the

drug, the quantity, and the price.[6]

***

The Commonwealth did not need to produce the actual

controlled substances in question at trial, as there was sufficient

circumstantial evidence presented to establish the identity of the

controlled substance.

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6

For instance, Agent Moore testified that he listened to recorded voice mail

messages and telephone conversations between Mr. Wilson and Appellant,

whose voice he recognized. N.T., 10/27/14, at 32. Specifically, on October

31, 2012, Mr. Wilson called Appellant, asked if he was coming back to the

State College area, indicated he had a friend, as well as a couple of other

people, looking for heroin and he needed “two stacks.” Id. at 38, 41. Later

on that same day, Appellant told Mr. Wilson he was “right around the

corner,” and Appellant was then captured on video camera arriving at Mr.

Wilson’s house. Id. at 42. Further, on that same date, Ms. Berrigan sent a

text message to Appellant indicating she had people at work who wanted to

buy heroin, and Appellant returned later in the day to Mr. Wilson’s home.

Id. at 56. Mr. Wilson then called Ms. Berrigan to report Appellant had

brought the heroin, and they negotiated a price. Id. Surveillance officers

watched as Mr. Wilson and Appellant delivered the heroin to Ms. Berrigan’s

place of employment. Id. at 66. Also, on October 31, 2012, Appellant was

overheard on the phone telling Mr. Wilson that he had only “two bunnies” of

heroin left. Id.

With regard to November 2, 2012, the Commonwealth entered into

evidence transcripts of text messages and telephone conversations wherein

Mr. Wilson called Appellant, who indicated he would be at Mr. Wilson’s house

in ten minutes. See Commonwealth’s Exhibit 1. Mr. Wilson then called Ms.

Colby, indicating it would be “no more than twenty a ticket.” Id. Agent

Moore testified that “tickets” referred to heroin. N.T., 10/27/14, at 48.

Further, Agent Moore testified generally about telephone conversations

in which Mr. Wilson rated the heroin, which he purchased from Appellant, as

a 7.5 or 8 on a scale of 10, and that it was “pretty decent.” Id. at 70-71.

Mr. Wilson informed people on the telephone that the heroin was not “the

$10 bags of heroin from his friend down the street.” Id. at 71.

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PCRA Court Opinion, filed 12/14/16, at 3-4 (citations omitted) (footnotes

added).

We agree with the PCRA court’s analysis and conclude there is no

merit to Appellant’s underlying sufficiency claim. Specifically, since the trial

judge was permitted to use his common sense and the reasonable inferences

from the evidence presented in determining that the substance at issue was,

in fact, heroin, there is no merit to Appellant’s underlying claim that the

evidence was insufficient to establish the identity of the substance. See

Minott, supra. Thus, direct appeal counsel cannot be deemed ineffective

for failing to raise the meritless claim on direct appeal. See Benner, supra.

In his next argument, Appellant contends trial counsel was ineffective

in failing to object to testimony of Agent Moore that extended beyond his

expertise in coded language. We find this issue to be waived on appeal.

Appellant baldly asserts that “[t]rial counsel failed to object to

statements by Agent Moore that went beyond the scope of his expertise,

with those statements being found at pages 36 through 40, 49, 67, and 91

of the trial transcript.” Appellant’s Brief at 21. However, Appellant has not

identified precisely which statements he is challenging and has cited no

authority supporting his one paragraph argument. We decline to develop

the argument for Appellant, and thus, we find it to be waived. See

Pa.R.A.P. 2119; Coulter v. Ramsden, 94 A.3d 1080 (Pa.Super. 2014)

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(holding this Court will not act as counsel and develop arguments on behalf

of an appellant).

In his next argument, Appellant contends trial counsel was ineffective

in failing to object to the inadmissible hearsay testimony of Donee Gordon

and Melissa Colby.7 Further, he contends the PCRA court erred in ruling the

underlying substantive claim meritless on the basis the testimony was

admissible under the co-conspirator exception to the hearsay rule as set

forth in Pa.R.E. 803(25)(e), which permits hearsay statements made by a

co-conspirator to be admitted against an accused if the statements are made

during the conspiracy and in furtherance thereof.

With regard to the underlying substantive claim, we note the following

legal precepts:

Our standard of review relative to the admission of evidence is for an

abuse of discretion. Commonwealth v. Cain, 29 A.3d 3 (Pa.Super. 2011).

This Court has previously articulated the requisite standard for admitting a

co-conspirator’s hearsay statement as follows.

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7

We note Appellant has not set forth the specific challenged portions of

testimony in his brief; but rather, he indicates that “[c]ounsel for [Appellant]

in the amended PCRA [petition] laid out all pages and lines of the transcript

where hearsay evidence was admitted with no objection from [trial

counsel].” See Appellant’s Brief at 23. Further, while Appellant makes a

passing reference to inadmissible hearsay testimony being offered by David

Immel, Appellant has not developed his argument with regard thereto on

appeal.

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To lay a foundation for the co-conspirator exception to the

hearsay rule, the Commonwealth must prove that: (1) a

conspiracy existed between the declarant and the person against

whom the evidence is offered[8] and (2) the statement sought to

be admitted was made during the course of the conspiracy. In

addition, there must be evidence other than the statement of the

co-conspirator to prove that a conspiracy existed.

Commonwealth v. Kersten, 482 A.2d 600, 603 (Pa.Super. 1984) (citation

omitted) (footnote added).

Here, Appellant focuses his argument on the first requirement of the

exception, i.e., whether there was evidence a conspiracy existed between

the declarants (Ms. Gordon and Ms. Colby) and the person against whom the

evidence was offered (Appellant).

Application of the co-conspirator exception to the hearsay

rule is predicated on agency principles—when the elements of

the exception are established, each conspirator is considered an

agent of the other, and therefore, a statement by one represents

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8

To prove a criminal conspiracy,

[t]he Commonwealth must establish that the [appellant] (1)

entered into an agreement to commit or aid in an unlawful act

with another person or persons, (2) with a shared criminal

intent, and (3) an overt act done in furtherance of the

conspiracy. Circumstantial evidence may provide proof of the

conspiracy.

***

Additionally, an agreement can be inferred from a variety

of circumstances including, but not limited to, the relation

between the parties, knowledge of and participation in the crime,

and the circumstances and conduct of the parties surrounding

the criminal episode.

Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa.Super. 2005)

(quotation omitted).

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an admission by all....[T]o meet the first requirement of the

exception (existence of a conspiracy), the Commonwealth’s

burden is gauged according to a preponderance [of the

evidence] standard, and a conspiracy may be inferentially

established, for example, by relation, conduct, or circumstances

of the parties.

Commonwealth v. Johnson, 576 Pa. 23, 43, 838 A.2d 663, 675 (2003)

(citations and footnote omitted). Simply put, only slight evidence of the

conspiracy is needed for a co-conspirator’s statement to be introduced. See

id.

Here, in finding the Commonwealth met its burden in this regard, the

PCRA court indicated the following:

The content of the intercepted calls presented to the court

were wholly either relating to [Appellant’s] drug deliveries on

their face or were determined to be relating to [Appellant’s] drug

deliveries through the decoding of the content, by way of the

Commonwealth’s expert testimony. The parties involved in said

calls were either [Appellant’s] drug buyers or intermediaries

between drug buyers and [Appellant]. At trial, the

Commonwealth introduced intercepted text messages and calls,

surveillance video, and eyewitness testimony.

PCRA Court Opinion, filed 12/14/16, at 8.

We agree with the PCRA court’s analysis in this regard. Further,

specifically as to the conspiracy between Appellant and Ms. Gordon, we note

that the Commonwealth offered evidence of an intercepted telephone call

whereby Ms. Gordon called Mr. Wilson, asking for “a brick of heroin.” N.T.,

10/27/14, at 66. Agent Moore testified that Mr. Wilson, who covered the

telephone with his hand, talked to Appellant, who could be heard in the

background indicating that they had only “two bunnies” left. Id. Mr. Wilson

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communicated this information to Ms. Gordon, who asked for a price. Id. at

66-67. Agent Moore testified that Mr. Wilson “again cover[ed] the phone

and [came] back with the price of 3½...It [was] going to be two bundles of

heroin for $350.” Id. at 67. Agent Moore also testified to a telephone call

that occurred between Mr. Wilson and Appellant after the delivery of the

heroin was made to Ms. Gordon. In this conversation, Mr. Wilson informed

Appellant that Ms. Gordon had been $100 short when the heroin was

delivered, but that she now had the money available. Id. at 74.

Furthermore, as to the conspiracy between Appellant and Ms. Colby,

the Commonwealth offered evidence that Mr. Wilson telephoned Appellant

on November 3, 2012, and Appellant indicated that he was returning to Mr.

Wilson’s house. Id. at 75-76. Surveillance officers then observed Appellant

entering Mr. Wilson’s house, and Mr. Wilson then telephoned Ms. Colby to

inform her that “there is now heroin at [his] house for distribution[.]” Id. at

77. Mr. Wilson then made arrangements to meet Ms. Colby at a school to

give her the heroin, which Appellant had just delivered to him. Id. at 90.

Agent Moore testified that a subsequent phone call revealed that Appellant

drove Mr. Wilson to the school to deliver the heroin to Ms. Colby. Id. at 90-

91.

Based on the aforementioned, we agree with the PCRA court that the

Commonwealth proved, by a preponderance of the evidence, that a

conspiracy existed between the declarants and Appellant. Contrary to

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Appellant’s assertion, the “division of labor” whereby Mr. Wilson primarily

negotiated the purchases with Ms. Gordon and Ms. Colby does not negate

Appellant’s active participation in the conspiracy to sell drugs, which he

supplied. See generally Commonwealth v. $6.425.00 Seized from

Esquilin, 583 Pa. 544, 880 A.2d 523, 531 (2005) (observing that “[i]t is not

unusual for drug dealing confederates to engage in a division of labor[.]”).

Thus, there is no merit to Appellant’s underlying evidentiary claim, and,

therefore, trial counsel cannot be deemed ineffective for failing to object to

the testimony at trial. See Benner, supra.

Appellant’s final two issues are intertwined. Specifically, Appellant

contends the PCRA court erred in concluding that there was no genuine issue

of material fact with regard to his claims presented supra, and therefore, the

PCRA court erred in dismissing his first PCRA petition without holding an

evidentiary hearing.

It is well-settled that “[t]here is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super.

2008) (citation omitted). In the case sub judice, Appellant’s issues

pertained to claims of ineffective assistance of counsel. Since such a claim

must meet all three prongs of the test for ineffectiveness, if the PCRA court

can determine without an evidentiary hearing that one of the prongs cannot

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be met, then no purpose would be advanced by holding an evidentiary

hearing. See id. Here, as indicated supra, Appellant has failed to

demonstrate arguable merit to his underlying claims and/or his

ineffectiveness claim has been otherwise waived on appeal. Accordingly, we

conclude the PCRA court did not err in dismissing Appellant’s PCRA petition

without an evidentiary hearing.

For all of the foregoing reasons, we affirm.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/27/2017

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