February 7, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
JUSTINO SANCHEZ Appellant
Appeal from the PCRA Order of September 27, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0008774-2009.
BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J.[*]
Justino Sanchez appeals the September 27, 2012 order dismissing his petition for relief pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. We affirm.
On April 29, 2010, following a non-jury trial, Sanchez was convicted of possession of a controlled substance with intent to deliver ("PWID") and possession of a controlled substance ("simple possession"). On direct appeal, we summarized the evidence underlying Sanchez's convictions as follows:
At about 8:00 p.m. on June 12, 2009, two Philadelphia Highway Patrol officers, on routine patrol, made a traffic stop of a minivan for careless driving on East Elkhart Street in Philadelphia. When the police officers approached the minivan, they smelled a very strong chemical odor. Officer Bruce Cleaver recognized this smell as a cutting agent used in the preparation of cocaine for distribution. A computer check also showed that the minivan was registered to Evilissa Fred, who lived at the same address as [Sanchez]. Based on these facts, the officers arrested both [Sanchez], who was the driver of the minivan, and a passenger. During the search incident to arrest, the police did not find drugs on the body of [Sanchez], however, three $100 notes and thirteen $20 notes (totaling $560) were found on his person.
The police transported the minivan to headquarters, and thereafter they obtained and executed a search warrant. The officer who conducted the search immediately detected the same strong chemical odor noticed by the arresting officers. In fact, Officer Michael Keenan testified that "this was some of the strongest [cocaine] that I've ever smelled." The smell was noticeable "[a]s soon as Officer Kelly opened the driver side door[.]" The odor became so intense that the searching officers filled out a contact memo (confirming officer contact with a controlled substance) because "the smell was burning [their] throats." Investigating the source of the smell, the searching officer found a black canvas bag on the back seat of the minivan. Inside the canvas bag police found a kilo brick of cocaine wrapped in heavy plastic, which a police expert testified is done to keep the cocaine smell from "emanating." The police also found a letter addressed to [Sanchez] in the glove box of the van.
Commonwealth v. Sanchez, No. 3189 EDA 2012, slip op. at 1-3 (Pa.Super. July 7, 2011) (footnotes and citations to notes of testimony omitted). On October 29, 2010, Sanchez was sentenced to forty-eight to ninety-six months' incarceration on the PWID conviction. Sanchez received no penalty for the simple possession conviction.
On July 7, 2011, we affirmed Sanchez' judgment of sentence in an unpublished opinion. Id. at 8. On July 8, 2011, Sanchez filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on November 29, 2011. See Commonwealth v. Sanchez, 34 A.3d 829 (Pa. 2011) (per curiam).
On February 8, 2012, Sanchez filed a timely pro se PCRA petition. Thereafter, counsel was appointed. Following a review of the case, appointed counsel determined that the issues that Sanchez proffered in his pro se petition were meritless. Thus, counsel filed a comprehensive no-merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc), as well as a motion to withdraw as counsel for Sanchez. After a review of the materials submitted by counsel and Sanchez, the PCRA court concurred with counsel's assessment of the issues that Sanchez raised in his pro se petition. Consequently, the PCRA court issued a notice of its intention to dismiss the pro se petition without a hearing pursuant to Pa.R.Crim.P. 907(1). On September 10, 2012, Sanchez filed a written response to the PCRA court's Rule 907 notice. On September 27, 2012, the PCRA court entered an order dismissing Sanchez's petition without a hearing, and granting counsel's petition to withdraw as counsel.
On October 18, 2012, Sanchez filed a notice of appeal. In response, the PCRA court directed Sanchez to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On December 31, 2012, Sanchez filed a timely statement. On February 8, 2013, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a). Sanchez presents five issues for our review:
1. Whether the prosecutor violated [Sanchez's] Sixth and Fourteenth Amendment rights when the Commonwealth suppressed tests, reports and forensic evidence, in disregard to [Sanchez's] request made by defense counsel, including exculpatory or inculpatory evidence?
2. Whether trial counsel was ineffective for failing to seek and obtain an expert witness to testify to the scientific fact that the police officer cannot smell cocaine when it is wrapped in plastic[?] Counsel's inaction violated [Sanchez's] right to effective assistance of counsel under the Sixth Amendment. PCRA counsel was equally ineffective for failure to seek [an] expert at the suppression hearing to show that the police officer could not have smelled cocaine in the van[.]
3. Whether the lack of probable cause required the arrest, search, and seizure to be suppressed because it was in violation of [Sanchez's] Fourth Amendment rights under the federal constitution and his rights under the Pennsylvania Constitution to be free from illegal search and seizure[?] Appellate counsel failed to preserve the illegal search and seizure suppression allegation and thus abandoned [Sanchez's] valid constitutional claim. Appellate counsel was constitutionally ineffective. Additionally [Sanchez] had standing to seek suppression of all evidence against him and any argument by trial counsel otherwise is contrary to well established state and federal law[.]
4. Whether [Sanchez's] constitutional rights under the Sixth Amendment was violated when preliminary hearing counsel represented [Sanchez] and [the] co-defendant at the same time and shifted the evidence of guilt against [Sanchez][?] As a result the co-defendant was released.
5. PCRA counsel was constitutionally ineffective for failing to amend and preserve all issues now alleged. PCRA counsel defaulted these constitutional issues. These issues are not waived and petitioner should have effective counsel appointed to brief these issues. Counsel should have supplemented [Sanchez's] PCRA petition.
Brief for Sanchez at 3.
Before we address these issues, we first must dispose of a motion filed by Sanchez with this Court. On December 17, 2012, two days before the PCRA court directed Sanchez to file a concise statement, Sanchez filed an application for relief with this Court based upon newly-discovered facts. On December 7, 2012, the Philadelphia Daily News published an article identifying various Philadelphia Police Officers that were transferred out of the narcotics division because of the officers' misconduct and credibility problems. Because of the integrity issues now associated with these officers, assistant district attorneys were forced to withdraw numerous criminal cases involving these officers. Two of the officers were associated with Sanchez's case. Lieutenant Robert Otto signed the application for the search warrant that was executed on Sanchez's vehicle. Officer Michael Spicer testified as an expert witness in narcotics and the packaging and distribution of narcotics in Sanchez's non-jury trial. For these reasons, Sanchez requests that this Court either stay this appeal and remand the case to the PCRA court, or dismiss his charges and discharge him immediately. Sanchez also asks for the appointment of new counsel to pursue this claim.
We deny Sanchez's motion without prejudice to file a subsequent PCRA petition at the conclusion of this appeal. Had this been a direct appeal, we would consider Sanchez's motion as an after-discovered evidence claim, and we would analyze the claim to determine whether remand would be proper under the traditional four-part after-discovered evidence test. Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa.Super. 2007).However, Rivera is not applicable on collateral appeal. See Commonwealth v. Soto, 983 A.2d 212, 216 (Pa.Super. 2009).
Because this is a collateral appeal, we will treat Sanchez's motion as if it were a second or subsequent PCRA petition. See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). Due to the procedural posture of this case, and for all practical purposes, Sanchez's request for relief appears to be predicated upon the newly-discovered fact exception to the PCRA's strict time limitation. See 42 Pa.C.S. § 9545(b)(1)(ii) (permitting the filing of a PCRA petition over one year after a judgment of sentence becomes final when "the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence."). Because a subsequent PCRA petition cannot be filed while another PCRA is pending on appeal, Lark, 746 A.2d at 588, Sanchez must wait until this appeal is resolved with finality and then re-file his request with the PCRA court as a subsequent PCRA petition. Should Sanchez pursue such relief, a subsequent petition must be filed pursuant to one of the exceptions to the PCRA's jurisdictional time bar (presumably subsection 9545(b)(1)(ii)) and within sixty days of the date of the order that resolves this appeal with finality, because that would be the first "date [that] the claim could have been presented." Id. (citing 42 Pa.C.S. § 9545(b)(2)). However, at this juncture, we deny Sanchez's motion without prejudice to his right to pursue relief in a second PCRA petition. We also deny Sanchez's request for the appointment of counsel, without prejudice to his right to re-submit the request with the PCRA court if he so chooses.
We turn now to Sanchez's substantive claims. We begin with our standard of review of a challenge to a PCRA court's dismissal of a PCRA petition without a hearing:
In reviewing the propriety of a PCRA court's order dismissing a PCRA petition, we are limited to determining whether the PCRA court's findings are supported by the record and whether the order in question is free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Spencer, 892 A.2d 840, 841 (Pa.Super. 2006) (citation omitted). Moreover, "[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), appeal denied, 956 A.2d 433 (Pa. 2008) (citing Commonwealth v. Barbosa, 819 A.2d 81 (Pa.Super. 2003)); Pa.R.Crim.P. 907(2). A reviewing court must examine the issues raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super. 2001) (citation omitted).
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.Super. 2008) (citations modified).
In his first issue, Sanchez alleges that the Commonwealth violated its duty pursuant to Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose to Sanchez the results of forensic tests conducted on the narcotics recovered by the police, all of the reports made by the arresting officers, and "the reports allegedly made by arresting officers relating to their exposure to the cocaine within their system as a result of this strong odor vibrating from the back of the van." Brief for Sanchez at 15 (emphasis in original). Sanchez alleges that, had he been provided with this information, he would have been able to test more effectively the credibility of the arresting officers, which Sanchez maintains was a crucial issue at trial. Id. at 15-16. This issue is waived.
To be eligible for relief under the PCRA, a petitioner must "plead and prove" by a preponderance of the evidence "[t]hat the allegation of error has not been previously litigated or waived." 42 Pa.C.S. § 9543(a)(3). "[A]n issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding." Id. § 9544(b). The reports and "cover memos" that Sanchez now claims were not disclosed to the defense were known to him at the time of trial. See Notes of Testimony ("N.T."), 4/28/2010, at 65-67, 70. Sanchez could have raised a Brady claim at that time, and could have pursued relief on direct appeal had his efforts been unsuccessful. Sanchez did not do so. Consequently, Sanchez cannot pursue this claim for the first time in a PCRA petition. The claim is waived. See 42 Pa.C.S. §§ 9543(a)(3); 9544(b).
At the very conclusion of his argument on this issue, Sanchez tacks on a boilerplate claim that trial counsel was ineffective for failing to pursue this issue on direct appeal. Claims of ineffective assistance of counsel ("IAC") are subject to the following standard:
[I]n order to obtain relief based on [an IAC] claim, a petitioner must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) petitioner suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.
Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). The petitioner bears the burden of proving all three prongs of this test. Commonwealth v. Meadows, 787 A.2d 312, 319-20 (Pa. 2001). Our Supreme Court has held that "a petitioner must set forth and individually discuss substantively each prong of the Pierce test." Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008). Instantly, Sanchez does not address any of the three Pierce prongs in his claim that trial counsel was ineffective for failing to pursue a Brady claim. Hence, his IAC claim fails.
In his second issue, Sanchez argues that trial counsel was ineffective for failing to call an expert witness at trial to explain to the trial court that a police officer cannot smell cocaine that is wrapped in plastic. See Brief for Sanchez at 20. Recently, in Commonwealth v. Luster, 71 A.3d 1029 (Pa.Super. 2013), we explained the burden that a PCRA petitioner must satisfy when he alleges that trial counsel was ineffective for failing to call an expert witness:
In order to demonstrate counsel's ineffectiveness for failure to call a witness, a petitioner must prove that "the witness  existed, the witness [was] ready and willing to testify, and the absence of the witness['] testimony prejudiced petitioner and denied him a fair trial." Commonwealth v. Johnson, 27 A.3d 244, 247 (Pa.Super. 2011) (internal citation omitted). In particular, when challenging trial counsel's failure to produce expert testimony, "the defendant must articulate what evidence was available and identify the witness who was willing to offer such evidence." Commonwealth v. Bryant, 855 A.2d 726, 745 (Pa. 2004) (internal citation omitted). Also, "[t]rial counsel need not introduce expert testimony on his client's behalf if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony." Commonwealth v. Copenhefer, 719 A.2d 242, 253 (Pa. 1998); accord Commonwealth v. Williams, 640 A.2d 1251, 1265 (Pa. 1994). Finally, "trial counsel will not be deemed ineffective for failing to call a medical, forensic, or scientific expert merely to critically evaluate expert testimony which was presented by the prosecution." Copenhefer, 719 A.2d at 253, n.12.
Luster, 71 A.3d at 1047. (citations modified).
Sanchez has failed to identify any forensics expert who would have provided testimony to counter the Commonwealth's theory of the case. Hence, Sanchez has failed to provide an offer of proof sufficient to establish that his claim has arguable merit. Id. at 1048 ("Without any offer of proof, [an appellant] cannot demonstrate that the absence of proposed expert testimony denied him a fair trial."). Additionally, our review of the record reflects that trial counsel effectively cross-examined the Commonwealth's police witnesses regarding the odor that is produced by cocaine and any agents used to cut cocaine. See N.T. at 62-67. For these reasons, Sanchez's claim lacks arguable merit. Consequently, this IAC claim also fails.
In his third claim, Sanchez contends that his appellate counsel was ineffective for failing on direct appeal to pursue a constitutional challenge to the stop of his vehicle. See Brief for Sanchez at 26. Sanchez notes that trial counsel filed a pre-trial suppression motion, wherein counsel asserted that the police lacked probable cause or reasonable suspicion to stop Sanchez's vehicle. However, appellate counsel failed to litigate this issue on direct appeal, an error that Sanchez claims constituted constitutionally ineffective stewardship.
Sanchez goes to great lengths to establish the underlying merits of his suppression claim, and, therefore, to establish that his claim has arguable merit. However, Sanchez does not devote as much attention to the remaining two prongs of the IAC test. Indeed, with regard to the prejudice prong, Sanchez offers only boilerplate allegations that, had appellate counsel pursued the claim, the outcome would have been different. Brief for Sanchez at 34, 35. Sanchez does not elaborate on these bald assertions in any substantive way. Such undeveloped claims do not satisfy the IAC test. Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008) (citing Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001)). Therefore, Sanchez's third claim fails.
In his fourth issue, Sanchez argues that his preliminary hearing counsel was ineffective by representing both Sanchez and his co-defendant at the same time. See Brief for Sanchez at 36. This claim is not cognizable under the PCRA. To be eligible for PCRA relief based upon an IAC claim, a PCRA petitioner must demonstrate that counsel's deficient performance "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). "Thus, when a claim for PCRA relief relates to stewardship of trial counsel, counsel's actions must implicate the truth-determining process in order to be facially cognizable. Claims relating to trial counsel's stewardship at a preliminary hearing are not cognizable since the truth-determining process is not implicated." Commonwealth v. Lassen, 659 A.2d 999, 1007 (Pa.Super. 1995) (citation omitted). Hence, Sanchez's fourth issue is not cognizable under the PCRA, and must fail.
In his final issue, Sanchez argues that PCRA counsel was ineffective for failing to raise and litigate the issues that Sanchez sets forth in this appeal. See Brief for Appellant at 38. In Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super. 2012), we addressed a very similar layered IAC claim. 55 A.3d at 1189 ("Appellant first posits that PCRA counsel was ineffective in failing to investigate, raise and address all of the issues presented in his pro se PCRA petition and failing to independently review the record for additional claims."). Therein, we set forth the principles governing layered claims implicating PCRA counsel's effectiveness as follows:
Where the defendant asserts a layered ineffectiveness claim[, ] he must properly argue each prong of the three-prong ineffectiveness test for each separate attorney. Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011); see also Commonwealth v. Reyes, 870 A.2d 888 (Pa. 2005); Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003).
Layered claims of ineffectiveness "are not wholly distinct from the underlying claims[, ]" because "proof of the underlying claim is an essential element of the derivative ineffectiveness claim[.]" Commonwealth v. Collins, 888 A.2d 564, 584 (Pa. 2005) (Saylor, J. concurring); Reyes, supra at 896 (proving three prong ineffectiveness test for trial counsel establishes arguable merit to appellate counsel's ineffectiveness). "In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel. If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue." Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa.Super. 2010)].
Rykard, 55 A.3d at 1190 (citations modified).
For the reasons set forth above, Sanchez has failed to demonstrate that either trial counsel or appellate counsel was ineffective on any of the bases alleged in his PCRA petition or in his brief to this Court. Consequently, pursuant to Burkett, supra, Sanchez cannot establish that PCRA counsel was ineffective for failing to amend and pursue such claims on Sanchez's behalf. See Burkett, supra. Thus, Sanchez's final issue fails.