February 7, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
EUGENE YOUNG, Appellant
Appeal from the PCRA Order December 2, 2011 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000023-2007
BEFORE: BOWES, ALLEN, and LAZARUS, JJ.
Eugene Young appeals from the December 2, 2011 order denying him PCRA relief. We affirm.
Appellant was convicted of two counts of possession of a controlled substance with intent to deliver and one count of criminal use of a communication facility. On September 29, 2006, a confidential informant told Agent Steven Martinec, a narcotics agent with the Office of the Attorney General of Pennsylvania, that Appellant stored drugs at and sold drugs from Apartment E, 3 Pennsylvania Avenue, Franklin, but that another m ale, Brian McClelland, lived in the apartment. Appellant resided at 322 Cedar Avenue, Oil City, with his girlfriend, Kianna Daniels, and their children. Apartment E is referred to as a stash house in drug parlance.
On September 26, 2006, the CI told Agent Martinec that Appellant would be at the stash house that night. Surveillance was conducted, and, at approximately 10: 00 p.m., Agent Martinec saw Appellant enter Apartment E utilizing a key. Thereafter, Ms. Daniels, who had been the subject of a past cocaine investigation, entered the apartment at 10: 30 p.m. and exited it six minutes later. Shortly thereafter, three people, one of whom was the subject of a drug investigation, entered the apartment and then left soon thereafter. A background check revealed that Appellant had a prior drug conviction.
On September 29, 2006, Agent Martinec participated in the execution of a search warrant obtained in connection with a different drug investigation. Jason Smith was arrested, and Agent Martinec asked him to name his drug supplier. As a result of Mr. Smith's reply and the information from the CI, Appellant became the focus of a narcotics investigation. On November 20, 2006, Agent Martinec used Mr. Smith and his girlfriend, Mary Lockham, to conduct a controlled buy of one ounce of cocaine from Appellant in exchange for $1, 000. The conversations between Mr. Smith and Appellant to arrange the drug transaction were recorded, and transcripts of the recordings were given to Appellant prior to trial.
The November 20, 2006 controlled buy was consummated on Plummer Street in Oil City. Police followed Mr. Smith and Ms. Lockman to Plummer Street, where Agent Martinec observed Appellant standing. The police car circled the block while Mr. Smith and Ms. Lockman parked next to Appellant. When police returned to Plummer Street, Agent Martinec saw Appellant inside Mr. Smith's car. After the sale, Mr. Smith gave Agent Martinec the cocaine at a pre-arranged meeting place. There was a recording device in Mr. Smith's car during the purchase of the ounce of cocaine. A transcript of that recording was forwarded to Appellant prior to trial.
In the meantime, on November 15, 2006, Agent Martinec had met with another confidential inform ant, who confirm ed the first confidential inform ant's report that Appellant was a drug dealer who lived in Oil City, but who stored and sold his drugs from the stash house in Franklin.
On December 5, 2006, Agent Martinec conducted a second controlled buy using Mr. Smith. On this occasion, Mr. Smith bought two ounces of cocaine for $2, 000 from Appellant. Telephone calls cementing the drug-purchase arrangements were recorded, transcribed, and copies of the transcriptions were given to Appellant prior to trial. The December 5, 2006 sale occurred in the parking lot of the apartment building located on 3 Pennsylvania Avenue, Franklin. Agent Martinec observed Appellant inside Mr. Smith's car during the sale. A tape recording of this second purchase was also made. Appellant again received a copy of the transcript of the recording before trial.
On December 5, 2006, Agent Martinec obtained a search warrant for Appellant's stash house in Franklin, and police recovered therein cocaine, two handguns, and drug-dealing paraphernalia. Mr. McClelland testified at trial that those item s belonged to Appellant.
Following his conviction of the above-delineated offenses, Appellant was sentenced to eight to twenty years imprisonment. Appellant litigated a direct appeal and challenged the constitutionality of the search warrant and an evidentiary ruling made by the trial court. We affirmed. Commonwealth v. Young, 987 A.2d 828 (Pa.Super. 2009 (unpublished memorandum). Appellant filed a timely PCRA petition on December 31, 2009. The following issues were presented to the PCRA court:
a. That [ trial counsel] Attorney Gettleman failed t o cross examine Agent Steven Martinec with regard to inconsistencies in his testimony as compared with the testimony offered in the Suppression Hearing held on September 18, 2007, and as com pared to Agent Martinec's written reports, affidavits, transcripts of recordings made with concealed recording devices, and statements of witnesses.
b. That Attorney Gettleman failed to pursue the evidence referred to in discovery indicating that the apartment in question had been used by other suspects, and failed to cross examine Agent Martinec and other police witnesses with regard to that evidence.
c. That Attorney Gettleman failed to investigate the prior residences of Defendant and whether or not Defendant had ever had a vehicle registered in his name in order to impeach Agent Martinec on his testimony regarding a prior investigation involving Defendant alleged to have occurred in December 2005.
d. That Attorney Gettleman was ineffective because he failed to cross examine Jason Smith and Mary Lockman on testimony that was inconsistent with their prior written and oral statements inconsistent with transcripts of recordings made with concealed recording devices.
e. That Attorney Gettleman was ineffective for failing to pursue a copy of Brian McClelland's recorded statement via discovery motions, and thereby failed to cross examine Mr. McClelland with regard to said statement.
f. That the District Attorney engaged in a discovery violation by failing to provide a copy or transcript of Brian McClelland's recorded statement.
g. That Attorney Gettleman was ineffective for permitting the entry of Lab Reports without testimony from police officers and the lab regarding chain of custody and without testimony from the individual(s) who conducted the testing.
Trial Court Opinion, 12/ 2/ 11, at 1-2. Finally, Appellant averred that appellate counsel " was ineffective in t he pursuit of Defendant's direct appeal by failing to include the above allegations of ineffectiveness and discovery violations" as well as by failing to request "transcripts of the opening statements, closing statements or charge to t he jury in order to investigate the possibility of prejudicial error within them ." Id. at 2. The PCRA court rejected those allegations, and denied Appellant's PCRA petition on December 2, 2011.
On appeal from the order denying him PCRA relief, Appellant raises this allegation, which was first presented in his Pa.R.A.P. 1925(b) statement:
I . Whether the lower court erred in denying relief in the form of a new trial based upon Trial, Direct Appeal, and PCRA Counsel's ineffective assistance of counsel and the Commonwealth's violations of discovery rules and the trial court's discovery orders?
Not answered below due to the failure of PCRA counsel to properly raise and develop the issue .
Appellant's brief at 3 (emphasis added). Specifically, Appellant maintains that,
Trial Counsel is alleged to have been ineffective for commencing litigation before securing and reviewing the recordings generated during electronic surveillance. Direct Appeal Counsel is alleged to have been ineffective for failing to raise the discovery violations, and PCRA counsel is alleged to have been ineffective for her failure to raise the issues discussed herein and her concomitant failure to develop a record suitable for review .
Appellant's brief at 6 (emphasis added).
Appellant's averments on appeal, in essence, are that, even though trial counsel was provided the transcripts of all recordings made in connection with Appellant's investigation, PCRA counsel was ineffective for failing to litigate trial and appellate counsel's ineffectiveness for not obtaining and listening to the actual tape recordings. However, as the Commonwealth points out in its brief, Appellant's allegations that PCRA counsel was ineffective for failing to present trial counsel's ineffectiveness in not obtaining the original tape recordings prior to trial cannot be raised in this appeal. The law is that "claims of PCRA counsel ineffectiveness cannot be raised for the first time after a notice of appeal has been taken from the underlying PCRA matter." Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa.Super. 2012). In Ford, we relied upon our Supreme Court's pronouncements in Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011), Commonwealth v. Paddy, 15 A.3d 431 (Pa. 2011), Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011), Commonwealth v. Colavita, 993 A.2d 874,
886 893 n.12 (Pa. 2010), and Commonwealth v. Pitts, 981 A.2d 875, 880 n.4. (Pa. 2009). In this case, Appellant failed to raise his claims of PCRA counsel's ineffectiveness at any point in the lower court proceedings. Hence, we cannot entertain Appellant's present averments.