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[U] Commonwealth v. Harriott

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
RYAN DESMOND HARRIOTT Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of July 2, 2012 In the Court of Common Pleas of Delaware County Criminal Division at No.: CP-23-CR-0008373-2007

BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J. [*]

MEMORANDUM

WECHT, J.

Ryan Desmond Harriott ("Harriott") appeals from the July 2, 2012 order dismissing his petition pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. We affirm.

This Court summarized the factual history of this case in our previous memorandum affirming Harriott's conviction:

On June 27, 2007, a Pennsylvania State Police Trooper on traffic patrol in full uniform in a marked vehicle stopped a black Honda on Interstate 95 in Chester[, Pennsylvania] for following too closely. [Harriott] was a passenger in the vehicle, which was driven by Kevin Kelly. When the trooper approached the driver's door he smelled the fresh odor of marijuana. Kelly presented documentation [that] confirmed that the vehicle was registered in Delaware under a female name. The trooper called for backup. [Harriott] displayed unusual behavior. The trooper observed him looking down with his hand "elbow deep" beneath the seat. [Harriott] claimed he was looking for his cell phone, but the cell phone was resting on his lap. His pants were unzipped. Twice, he ignored instructions to stay in the car and had to be ordered back in by the trooper.
[Kelly] gave the trooper permission to search the car, telling [the trooper] to "go ahead." When the back[-]up trooper arrived, the first trooper searched the car, finding a loaded, operational .32 caliber handgun under [Harriott's] passenger seat. The trooper also found a black plastic bag containing a brick of marijuana [that] weighed almost eight pounds under some clothing in the trunk.

Commonwealth v. Harriott, 775 EDA 2009, slip op. at 1-2 (Pa.Super. April 22, 2010). On January 10, 2008, Harriott was charged by information with various offenses related to possession of narcotics, possession of a firearm, and criminal conspiracy.

On February 22, 2008, Harriott filed an omnibus pre-trial motion seeking to suppress physical evidence seized from the vehicle on the basis that the officer "lacked reasonable suspicion, let alone probable cause, to detain, interrogate, and search [Harriott, Kelly, ] and the motor vehicle." Harriott's Omnibus Pre-Trial Motion, 2/22/2008, at 2 (unpaginated). Harriott also sought to suppress statements that he made to the police during his arrest. Id. at 3-4. On March 18, 2008, the trial court held a suppression hearing. On April 4, 2008, the trial court granted Harriott's suppression motion as to monies seized from the car, as well as to Harriott's statements. Harriott, 775 EDA 2009, at 2 n.4. However, the trial court denied Harriott's suppression motion with respect to the marijuana and the firearm. Id. At 2. On April 16, 2008, Harriott's trial counsel filed a motion for reconsideration with respect to the motion to suppress physical evidence, arguing:

It is believed and therefore respectfully suggested that [the trial court] erred in denying [Harriott's] Motion to Suppress Evidence because any evidence [that] the vehicle in which [Harriott] was a passenger [was] following [another car] too closely would have been depicted in the video obtained via [the Pennsylvania state trooper's recording unit] . . . said video did not depict a vehicle following too closely as compared to all other motor vehicles traveling . . . at or about the time of the stop.

Harriott's Motion for Reconsideration, 4/16/2008, at 2 (unpaginated). On May 9, 2008, the trial court denied Harriott's motion for reconsideration.

Following a jury trial, on July 31, 2008, Harriott was found guilty of possession of a controlled substance with intent to deliver (35 P.S. § 780-113(a)(30)), concealed firearms not to be carried without a license (18 Pa.C.S. § 6106), and criminal conspiracy (18 Pa.C.S. § 903). Harriott, 775 EDA 2009, slip op. at 1. On October 23, 2008, the trial court sentenced Harriott "to a mandatory minimum term of sixty months' incarceration for [possession with intent to deliver, ] followed by a consecutive term of twelve to sixty months' incarceration for possessing a firearm without a license, following by a consecutive term of five years' state probation for the conspiracy conviction." Id. at 3. On October 29, 2008, Harriott filed post-sentence motions challenging the sufficiency of the evidence and alleging ineffective assistance of trial counsel. Id. On February 24, 2009, the trial court denied Harriott's post-sentence motions. Harriott filed a timely notice of appeal to this Court. On April 22, 2010, a panel of this Court upheld Harriott's judgment of sentence.[1] Id. at 6. On May 21, 2010, Harriott petitioned the Pennsylvania Supreme Court for allowance of appeal. On February 25, 2011, the Pennsylvania Supreme Court denied Harriott's request.

On December 15, 2011, Harriott filed a pro se PCRA petition alleging violations of his constitutional rights and ineffective assistance of counsel ("IAC"). On December 22, 2011, the PCRA court appointed counsel to represent Harriott and directed counsel to file an amended PCRA petition. On May 7, 2012, Harriott's PCRA counsel filed a Turner/Finley "no merit" letter.[2] On May 31, 2012, the PCRA court allowed Harriott's counsel to withdraw. That same day, the PCRA court filed notice of its intent to dismiss Harriott's petition without a hearing pursuant to Pa.R.Crim.P. 907(1). On June 29, 2012, Harriott submitted a pro se objection to the notice of intent to dismiss. On July 2, 2012, after considering Harriott's objections, the PCRA court dismissed Harriott's petition.

On July 27, 2012, Harriott filed a timely notice of appeal. On August 3, 2012, the PCRA court ordered Harriott to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Harriott's Rule 1925(b) statement was filed on August 28, 2012.[3] On September 26, 2012, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Harriott presents the following five issues for our review:

1. Whether counsel was ineffective for not challenging the most important issue, being [whether] the traffic stop initiated by the police was unlawful.
2. Whether trial counsel was ineffective in allowing the A.D.A. to commit perjury by telling the jury in the closing argument that [Harriott] was a "career criminal."
3. Whether [the] trial judge[] and counsel commit[t]ed an error when they ordered the [PCRA] counsel to file an amended complaint to [Harriott's PCRA petition] and [PCRA] counsel failed to do so.
4. Whether trial counsel was ineffective when he never challenged the initial traffic stop initiated by police.
5. Whether trial counsel was ineffective for not challenging the "weight of the evidence"[] at trial or preserving the matter for appeal.

Brief for Harriott at 7. Although listed as five separate issues, Harriott actually presents four claims for our review: (1) that trial counsel was ineffective for failing to object to the assistant district attorney's alleged "perjury;" (2) that PCRA counsel was ineffective for failing to file an amended PCRA petition; (3) that trial counsel was ineffective for not challenging the validity of the initial traffic stop; and (4) that trial counsel was ineffective for failing to preserve a challenge to the weight of the evidence. See Brief for Harriott at 9 (summarizing Harriott's appellate arguments). We will address each claim in turn.

We begin with Harriott's IAC claim relating to trial counsel's alleged failure to object to the assistant district attorney's "perjur[ed]" statement that Harriott was a "career criminal." Our review of the certified record indicates that Harriott did not include this issue in his Rule 1925(b) statement. "[I]n order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of [Errors] Complained of On Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived." Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (quoting Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)); see Pa.R.A.P. 1925(b)(4)(vii). Therefore, Harriott has waived his first claim.

We turn now to Harriott's second claim asserting IAC, which concerns PCRA counsel's alleged failure to file an amended PCRA petition. Specifically, Harriott alleges that "[PCRA] counsel failed to consult, write or amend [Harriott's PCRA petition] during his entire time as counsel of record." Brief for Harriott at 15 (unpaginated). Although framed as a challenge to the effectiveness of PCRA counsel, Harriott's discussion of the issue appears to be set-up as a layered IAC claim. See id. ("[Harriott] requested [PCRA counsel] to litigate the fact of ineffectiveness of all prior counsel in that none of them even tried to fight the most important issue of all, which is the initial traffic[] stop."). As such, we will evaluate Harriott's issue as a layered IAC claim asserting that each of his prior attorneys was ineffective either for failing to seek the suppression of physical evidence on the basis of the initial traffic stop in this case, or failing to challenge the failure to seek suppression on appeal.

Our standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.Super. 2011) (citing Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010)) (internal citations omitted).

It is well-established that counsel is presumed effective, and the defendant bears the burden of proving ineffectiveness. Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, [an a]ppellant must satisfy a three-pronged test and demonstrate that: (1) the underlying substantive claim has arguable merit; (2) counsel who 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. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). A claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any of these prongs. Id. at 221-22.

Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009) (citations modified). This Court has identified a framework governing layered ineffectiveness claims:

[A] petitioner must plead in his PCRA petition that his prior counsel, whose alleged ineffectiveness is at issue, was ineffective for failing to raise the claim that the counsel who preceded him was ineffective in taking or omitting some action. In addition, a petitioner must present argument . . . on the three prongs of the Pierce test as to each relevant layer of representation.

Commonwealth v. McGill, 832 A.2d 1014, 1023 (Pa. 2003). "The inability of a petitioner to prove each prong of the Pierce test in respect to trial counsel's purported ineffectiveness alone will be fatal to his layered ineffectiveness claim." Commonwealth v. Tedford, 960 A.2d 1, 13 (Pa. 2008) (quoting Commonwealth v. Carson, 913 A.2d 220, 233 (Pa. 2006)).

Instantly, Harriott has not layered his IAC claim in the manner prescribed by the precedent above.[4] Harriott's argument does not discuss any of the three Pierce prongs with any specificity, nor does Harriott properly subdivide his discussion with respect to his trial, direct appellate, or PCRA counsel. Even assuming, arguendo, that Harriott properly had constructed his argument, his claim must fail because he cannot demonstrate that his IAC claim with respect to trial counsel has arguable merit.

Harriott asserts that the underlying ineffectiveness in his layered IAC claim was trial counsel's alleged failure to challenge the legitimacy of the initial traffic stop in this case. Harriott's contentions to the contrary notwithstanding, the certified record reveals that trial counsel did, in fact, challenge the legitimacy of the initial traffic stop in this case.

Harriott's omnibus pre-trial motion argued that the investigating officer lacked the necessary "reasonable suspicion" or "probable cause" to "detain, interrogate, and search" Harriott. Harriott's Omnibus Pre-Trial Motion, 2/22/2008, at 2 (unpaginated). More particularly, in Harriott's motion for reconsideration, his trial counsel specifically argued that the investigating officer's original reason for stopping the vehicle was not supported by the evidence. See Harriott's Motion for Reconsideration, 4/16/2008, at 2 (unpaginated). Stated simply, the alleged failure that Harriott's layered IAC claim relies upon did not occur. Harriott's trial counsel challenged the validity of the initial traffic stop. Thus, Harriott is unable to demonstrate that his layered IAC claim has arguable merit under Pierce with respect to trial counsel. See Ligons, supra. Accordingly, Harriott's layered IAC claim must fail. See Tedford, supra. Therefore, we conclude that the PCRA court's conclusion is supported by the record and free from legal error.

We turn now to Harriott's third issue, in which he alleges the ineffectiveness of trial counsel for failing to challenge the validity of the initial traffic stop. We already have discussed the legal standards relevant to this issue in our earlier discussion of Harriott's layered IAC claim. Moreover, the substance of Harriott's third claim is the same as the substance of Harriott's layered IAC claim. We already have concluded that Harriott's claims that trial counsel failed to challenge the validity of the initial traffic stop are not supported by the record. See supra at 9-10. Harriott was unable to demonstrate that this issue had arguable merit with respect to his layered IAC claim. He equally is unable to do so now. Harriott's third claim fails.

We turn now to Harriott's last issue, in which he alleges that trial counsel was ineffective for failing to preserve a challenge to the weight of the evidence. Our standard of review and the legal principles attendant to IAC remain the same as above. See Ligons; Garcia, supra. It is well-established under Pennsylvania law that "[a] weight of the evidence claim must be raised in a motion prior to sentencing, in an oral motion at sentencing, or a post-sentence motion to be preserved properly." Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa.Super. 2013). Instantly, the certified record indicates that Harriott's trial counsel did not preserve a challenge to the weight of the evidence in post-trial proceedings.

Evaluating trial counsel's actions under the rubric provided by Pierce, it is well-established that Harriott 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, Harriott does not directly address any of the three Pierce prongs in his claim that trial counsel was ineffective for failing to pursue a weight of the evidence claim. While Harriott's discussion fails specifically to invoke the Pierce prongs, his brief charitably could be construed as discussing the arguable merit of the underlying issue. However, even assuming, arguendo, that Harriott adequately has addressed arguable merit, he has failed to discuss the remaining factors. Our Supreme Court has determined that IAC claims that confine their discussion solely to the arguable merit prong of Pierce "cannot establish counsel's ineffectiveness." Commonwealth v. Jones, 876 A.2d 380, 386 (Pa. 2005). Therefore, we conclude that the PCRA court's determination is supported by the record and free from legal error. Hence, Harriott's fourth claim fails.

Order affirmed.

Judgment Entered.


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