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[U] Commonwealth v. Clark

Superior Court of Pennsylvania

February 20, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
KEON CLARK, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order May 30, 2013 In the Court of Common Pleas of Indiana County Criminal Division at No(s): CP-32-CR-0000587-2009

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and WECHT, JJ.

MEMORANDUM

BOWES, J.

Keon Clark appeals from the order entered by the court below denying his first-counseled PCRA petition. We affirm.

The PCRA court detailed the following relevant factual and procedural background.

In May 2009, the Pennsylvania State Police received a complaint that persons in the Hickory Meadow Apartments at 110 Roush Drive, White Township, Indiana County were possibly selling and using illegal drugs. Trooper Christopher Leon visited the apartments to conduct surveillance. While driving through the complex, Trooper Leon was stopped by the apartment complex manager and maintenance man. Scott Snyder, the maintenance man, informed Trooper Leon that he removed four trash bags from the rear porch of 110 Roush Drive. Residents were not permitted to leave trash on their porches, and if they did so, Snyder was permitted to remove the trash. Trooper Leon examined the contents of the trash bags and discovered torn and cut baggies that he believed to be evidence of drug paraphernalia consistent with his experience and training. A receipt was also recovered containing the name Heather McGee. Trooper Leon sought and obtained a search warrant for McGee's apartment.
The police searched the residence and removed a bank check box containing bagged heroin and crack cocaine, torn and cut baggies, rubber bands, a digital scale, $50.00 in United States currency, and other drug paraphernalia. Defendant was arrested on unrelated felony drug charges and was found to be in possession of $1, 135.75. As a result of the search of McGee's apartment, Defendant was charged with Possession with Intent to Deliver a Controlled Substance-Cocaine and Heroin, Criminal Conspiracy-Possession with Intent to Deliver a Controlled Substance, Possession of a Controlled Substance, and Possession of Drug Paraphernalia. A jury trial began on February 9, 2010 and ended in a mistrial. Defendant's second trial was held on February 22, 2010 and resulted in Defendant being convicted of all charges against him. Defendant appealed to the Superior Court, asserting that the evidence seized by Snyder should have been suppressed because he was a state actor and that there was not probable cause to grant the warrant to search McGee's apartment. The Superior Court [affirmed] and the Supreme Court denied Defendant's appeal.

PCRA Court Opinion, 5/30/13, 1-2.

Appellant filed a timely pro se PCRA petition, and the court appointed counsel. Counsel submitted an amended petition and the PCRA court conducted an evidentiary hearing, wherein trial counsel and Appellant testified. Following the hearing, the PCRA court denied relief. This timely appeal ensued. The PCRA court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the PCRA court authored its Pa.R.A.P. 1925(a) opinion. The matter is now ready for our consideration. Appellant raises the following issues for this Court's review.

I. Whether the trial court erred when it denied defendant relief under the Post Conviction Collateral Relief Act when it made a finding that trial counsel was not ineffective counsel, even though insufficient evidence was presented by the Commonwealth on all charges and trial counsel did not argue the claim to the Superior Court of Pennsylvania?
II. Whether the trial court erred when it denied defendant relief under the Post Conviction Collateral Relief Act when it made a finding that trial counsel was not ineffective counsel, even though the weight of the evidence on all charges clearly favored the defendant and trial counsel did not argue the claim to the Superior Court of Pennsylvania?
III. Whether the trial court erred when it denied defendant relief under the Post Conviction Collateral Relief Act, even though trial counsel failed to raise an objection under Pennsylvania Rule of Evidence 404(b) regarding prior bad acts, resulting in severe prejudice to defendant?
IV. Whether the trial court erred when it denied defendant relief under the Post Conviction Collateral Relief Act when it made a finding that defense counsel was not ineffective counsel, even though trial counsel failed to object to the testimony of a Pennsylvania State Trooper as an expert witness, resulting in severe prejudice to the defendant?

Appellant's brief at 4.

This Court analyzes PCRA appeals "in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super. 2012). Our "review is limited to the findings of the PCRA court and the evidence of record" and we do not "disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error." Id. Similarly, "[w]e grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions." Id. (citations omitted). "[W]here the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary." Id. Finally, we "may affirm a PCRA court's decision on any grounds if the record supports it." Id.

Appellant's four claims all relate to the effectiveness of trial counsel. "To plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act." Commonwealth v. Stewart, 2013 PA Super 317, *4 (en banc). Failure to meet any prong of this test will result in the claim failing. Id.

Appellant's first issue is that counsel was ineffective on direct appeal for failing to allege a sufficiency of the evidence claim. According to Appellant, the evidence at trial was insufficient to prove conspiracy to commit possession with intent to deliver ("PWID"), PWID, and possession of drug paraphernalia. He asserts that the alleged co-conspirator, Heather McGee, testified that she was not present at the residence when police located the drugs in question and was not at the home for that entire week. Appellant acknowledges that McGee testified that she drove Appellant to deliver drugs and would drive him to both pick up and sell drugs. However, he maintains that her testimony did not relate directly to the stamp bags of heroin and cocaine located in their residence.

In addition, Appellant argues that the Commonwealth did not prove that he constructively possessed the drugs and drug paraphernalia. In this respect, he posits that McGee, with whom he shared the apartment where the drugs were found, did not testify that the drugs were at her home when she left the home for a week to attend Air Force Reserve training. Based on this argument, the logical inference is that Appellant himself brought the drugs to the residence or helped another individual do so. Nonetheless, Appellant maintains that, since there were no drugs or paraphernalia found on his person when he was searched outside the apartment before police searched the home and because there was no fingerprint evidence on the bags of drugs, the Commonwealth did not sustain its burden.

In reviewing a sufficiency challenge, "we must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt." Commonwealth v. Brown, 52 A.3d 320, 323 (Pa.Super. 2012). The Commonwealth can meet its burden "by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances." Id.

This Court does not "re-weigh the evidence and substitute our judgment for that of the fact-finder." Id. Additionally, "all evidence actually received must be considered." Id. Further, we must draw all reasonable inferences from the evidence in favor of the Commonwealth as the verdict-winner. Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013). "Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail." Brown, supra at 323. "[T]he evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented." Id.

Instantly, sufficient evidence was presented to establish Appellant's guilt of conspiracy to commit PWID, PWID, and possession of drug paraphernalia. Appellant casts aside this Court's standard of review and ignores the reasonable and logical inferences derived from the evidence. The Commonwealth introduced evidence that numerous stamp bags of heroin were located at Appellant's shared residence with McGee along with multiple bags of crack cocaine.[1] McGee indicated that on prior occasions she had aided Appellant in delivering and buying drugs by driving him to certain locations.

"To sustain a conviction for criminal conspiracy, the Commonwealth must establish the defendant: 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 was done in furtherance of the conspiracy." Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa.Super. 2011). "The conduct of the parties and the circumstances surrounding such conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt." Id. The conspiratorial 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." Id.

Commonwealth v. Feliciano, 67 A.3d 19, 25-26 (Pa.Super. 2013) (en banc)

Appellant's position that McGee did not specify that she drove him with respect to the drugs found in the home does not require a finding that insufficient evidence existed. Certainly, the drugs Appellant still possessed had yet to be delivered, and therefore McGee could not have aided him in selling or delivering that heroin or cocaine. This fact does not mean that she did not conspire to help him sell or deliver those drugs. The fact that the drugs were stored at her home, that she was aware that drugs previously had been kept at her residence, and she aided Appellant in transporting drugs in the past is sufficient to sustain Appellant's conviction for conspiracy.

Indeed, it is a reasonable and logical inference that Appellant and McGee agreed to distribute drugs and hold drugs for purposes of distribution in the apartment. Furthermore, the jury was free to disbelieve McGee's self-serving testimony that she did not know of the seized drugs upon leaving the house. This is not a case where the evidence is so weak that no probability of fact can be drawn from the circumstances. Additionally, evidence that the drugs were located in Appellant's shared residence establishes possession of the drugs and the drug paraphernalia inside of which the drugs were stored. Appellant's claim lacks arguable merit. Accordingly, counsel was not ineffective for failing to pursue a meritless issue.

Next, Appellant asserts that trial counsel was ineffective in failing to preserve a weight of the evidence challenge. "Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence." Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (italics in original). Accordingly, "[o]ne of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice." Id.

A trial judge should not grant a new trial due to "a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion." Id. Instead, the trial court must examine whether "'notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.'" Id. Only where the jury verdict "is so contrary to the evidence as to shock one's sense of justice" should a trial court afford a defendant a new trial. Id. A weight of the evidence issue concedes that sufficient evidence was introduced. Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa.Super. 2006).

In presenting his argument, Appellant begins by essentially reiterating his sufficiency of the evidence position. Appellant submits that McGee did not have any knowledge of the heroin or cocaine when she left her apartment and the Commonwealth did not demonstrate that she agreed to purchase or possess those drugs while she attended Air Force Reserve training. He continues that a known drug dealer was located in the apartment when police found the drugs and that the Commonwealth did not produce any fingerprint evidence relative to the stamp bags. Thus, Appellant maintains that trial counsel was ineffective in declining to litigate a weight of the evidence claim on appeal.

The Commonwealth merely replies that the verdict was not shocking. The PCRA court ruled that counsel's proffered reason for not addressing the issue, i.e., that the weight of the evidence argument was weak, was reasonable. We discern no error on the part of the PCRA court. Weight of the evidence issues are, by their nature, one of the weakest arguments that can be advanced on appeal. See Clay, supra. Indeed, Appellant has not cited a single case in support of his position where a weight of the evidence issue was successful on appeal. Here, there is no conflict in the testimony nor are certain facts tending to exculpate Appellant clearly of greater weight than facts demonstrating his guilt. Appellant's underlying weight of the evidence issue is meritless; therefore, counsel was not ineffective.

The third issue Appellant levels on appeal is that trial counsel was ineffective in neglecting to object to the admission of prior bad acts evidence. Specifically, Appellant alleges that trial counsel was ineffective in failing to argue that the probative value of evidence that McGee previously transported Appellant to obtain drugs was outweighed by its prejudicial impact. At trial, the prosecution asked McGee if she knew of Appellant's involvement with drugs. She responded that she formerly drove him to receive delivery of drugs. Counsel objected, and the trial court set forth that the evidence was admissible to demonstrate the existence of a conspiracy. The court then instructed the jury in that regard. Trial counsel did not proffer that the prejudicial impact of the evidence outweighed its probative value. Thereafter, the Commonwealth introduced evidence that, after Appellant received the drugs, he would leave the shared residence and sell the drugs.

Appellant maintains that, pursuant to Pa.R.E. 404(b), the Commonwealth should not have been allowed to present evidence that he previously received and delivered drugs. In support, Appellant contends that, because McGee testified that she was unaware of the drugs in the apartment, there was no evidence that a conspiracy existed as to those drugs and that the prior bad acts should not have been admissible.

The Commonwealth responds that PCRA counsel provided a strategic reason for declining to make the argument now advanced by Appellant, since he believed the court's limiting instruction was sufficient. It adds that Appellant cannot show prejudice because the evidence was admissible. The PCRA court ruled that trial counsel provided a reasonable basis for not objecting based on the prejudicial verse probative concern.

Rule 404(b) is frequently misunderstood as precluding most instances of bad acts evidence. However, the rule actually prohibits bad acts evidence where it is being introduced solely to prove a defendant acted in conformity with those bad acts or to demonstrate a criminal propensity. See Pa.R.E. 404(b)(1); Brown, supra at 325. In contrast, bad acts evidence is admissible for myriad reasons including, but not limited to, proving "motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident." Pa.R.E. 404(b)(2); Brown, supra at 325.

As we explained in Brown, prior to the codification of our rules of evidence, our Supreme Court provided additional grounds for introducing bad acts evidence, such as to impeach the credibility of a defendant who testifies, where the defendant's prior criminal history had been used by him to threaten or intimidate the victim, and situations where the distinct crimes were part of a chain or sequence of events which formed the history of the case and were part of its natural development, i.e., the res gestae exception. Id. at 326.

Instantly, the evidence was admissible to demonstrate McGee's knowledge that Appellant kept drugs in her residence and sold drugs and that she agreed to aid him in his drug dealing endeavors. That McGee denied knowledge of the exact heroin and cocaine ultimately found in the apartment does not preclude the Commonwealth from showing that McGee actively helped Appellant distribute drugs or that her alleged claim of lack of knowledge was suspect. In deciding whether this evidence's probative valued was outweighed by its prejudicial impact, a court examines "the strength of the 'other crimes' evidence, the similarities between the crimes, the time lapse between crimes, the need for the other crimes evidence, the efficacy of alternative proof of the charged crime, and 'the degree to which the evidence probably will rouse the jury to overmastering hostility.'" Id.

Since Appellant was charged with a conspiracy to commit PWID, and the conspiracy centered around an agreement or agreements with McGee, the need for this evidence was strong. The crimes are similar and although no precise time lapse is indicated, McGee provided that she and Appellant had lived together for thirty or forty days. Thus, the time lapse was insignificant. Alternative proof of an ongoing conspiracy could be derived from the fact that a large amount of heroin was located in the shared apartment of McGee and Appellant; however, McGee claimed no knowledge of those drugs. Hence, it was necessary to show McGee was aware of Appellant's drug business and the usage of her apartment for conducting that enterprise. Finally, the trial court's limiting instruction set forth that the jury should only consider Appellant's prior drug dealing with McGee in conjunction with the conspiracy charge. For these reasons, Appellant's ineffectiveness claim fails.

The final issue Appellant raises is that trial counsel rendered ineffective assistance by not objecting to testimony by Trooper Leon as improper expert testimony. Appellant contends that Trooper Leon's testimony regarding the packaging of the heroin, including using knotted baggies and rubber bands to bundle packets and stamping the baggies, "was tantamount to expert testimony." Appellant's brief at 32. He submits that counsel was ineffective in neglecting to object on the grounds that the Commonwealth did not offer Trooper Leon as an expert witness.

The Commonwealth's reply echoes that set forth by the PCRA court. Both the Commonwealth and PCRA court opined that, although Trooper Leon may not have been "formally qualified as an expert, his qualifications show that his opinion is entitled to be treated as such." Commonwealth's brief at 15. In this respect, the Commonwealth points out that Trooper Leon testified that he had been a state trooper for eighteen year, including eight years working in the vice and narcotics departments. The Commonwealth avers that Trooper Leon explained his extensive training and experience in the drug field, and that his opinions fell within the proper ambit of expert testimony.

At the PCRA hearing, trial counsel testified that he did not consider the officer's testimony to consist of expert testimony. Rather, he believed that the trooper "testified as to what he has commonly found in the arrests that he has made." PCRA hearing, 4/10/13, at 22. More importantly, he noted that had he conducted voir dire of the officer he would have been permitted to testify since he was "a very well credentialed officer." Id.

Our review of Trooper Leon's testimony reveals that the officer did relay his opinion regarding the significance of torn knotted baggies, the stamping of small bags containing heroin, and that small rubber bands are used to bundle heroin to be sold. He also added that individuals break off large pieces of crack cocaine into smaller pieces and place the small pieces in plastic baggies for sale. This testimony related to the finding of small rubber bands, stamp bags, and crack cocaine packaged in the manner described by the officer. Trooper Leon also testified, based on the weight and quantity of the heroin, that possession of that drug was not consistent with personal use. It appears that this is the testimony that Appellant objects to as impermissible expert testimony, although he fails to cite to where in the record the precise testimony that he is challenging can be located.

We find that Appellant is entitled to no relief. Had counsel objected to Trooper Leon's testimony that can be construed as expert opinion, the Commonwealth could have offered the trooper explicitly as an expert.[2] Trial counsel related at the PCRA hearing that Trooper Leon's credentials would have allowed him to testify as an expert, and any voir dire of him would not have excluded his testimony. Thus, counsel had a reasonable basis for not objecting and, had he objected, there is not a reasonable probability that the outcome of the proceeding would have been different.

Order affirmed.

Judge Wecht Concurs in the Result.

Judgment Entered.


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