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Commonwealth v. Watley

Superior Court of Pennsylvania

December 29, 2016


          Appeal from the PCRA Order January 27, 2016 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001701-2009

          BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.


          MOULTON, J.

         Andre Raymelle Watley appeals from the January 27, 2016 order of the Court of Common Pleas of Northampton County dismissing, in part, his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.

         This Court previously summarized the factual background of this matter as follows:

State police effectuated a traffic stop of [Watley] and his passenger, Randy Hayward, after observing them traveling at ninety-five miles per hour in a forty-five mile per hour zone. The stop occurred at approximately 1:45 a.m. on February 14, 2009, on State Route 22 in Northampton County, Pennsylvania. After pulling over the vehicle, Trooper Michael Acevedo and Trooper Lucas Lohrman approached. Trooper Lohrman walked to the passenger's side of the car while Trooper Acevedo went to the driver's side, where [Watley] was seated. When asked why he was traveling at such a high rate of speed [Watley] indicated that he was going to Easton Hospital. However, [Watley] had passed two exits leading to the hospital. [Watley] turned over to police a Pennsylvania identification card with the name "Chonce Acey." Hayward informed police that he was Jermaine Jones, and his birth date was October 4, 1982, but he was unable to provide his social security number.
The troopers ran the information and learned that Jermaine Jones was an alias for Hayward, who had an outstanding warrant for his arrest in New Jersey. Trooper Lohrman removed [Watley] from the car and took the keys to the vehicle before allowing [Watley] to re-enter it. The troopers also asked Hayward to exit the vehicle. When Hayward stepped from the vehicle, police noticed that the floor mat was raised into a high bump and an object appeared to be underneath it. While placing Hayward under arrest, Trooper Acevedo lifted the floor mat and discovered a loaded .22 caliber handgun. Trooper Acevedo promptly alerted his partner, drew his own weapon, and ordered [Watley] to step from the car and show his hands. Rather than comply, [Watley] who was on his cellular phone, fled the scene by running across the road and its median before crossing the opposing lanes of travel and into a wooded area. Trooper Acevedo gave chase for approximately fifteen minutes, but was unable to locate [Watley].
Before police ordered the towing of the vehicle, Hayward requested a jacket that was in the backseat. Police searched the coat for weapons before turning it over to Hayward and discovered two receipts from Western Union containing [Watley's] name. Police also obtained a search warrant for the car and discovered a .25 caliber pistol, a .25 caliber magazine, a box of .22-caliber ammunition, a container with a small amount of marijuana, and thirty-four Ecstasy pills. These items were located in the passenger side glove compartment.
Hayward provided police with a written statement, as follows:
On the date of February 13th I was picked up by "TEF" whose real name is Andre Watley around 6'o[']clock in the evening he was driving a [I]mpala (silver) which he told me was rented for him by a female friend by the name of Erica[.] [W]e proceeded to drive thru Allentown while he made his drops and transactions[.] [A]round 10 or 11 I got dropped off at Philly's sport[s] bar on Hamilton for a few while he had to go get something. He picked me up around 11:30 or 12 and told me about a party going on in Easton at Larry Holmes Ringside Bar and Grille so we headed out that way about 1:15 or so before we made it to Ringside we were pulled over on 22 East. When the officers initially turned the lights over he stated let's keep going we can outrun them and I stated "no" because we were only speeding and that's when Andre Watley told me there's a slammer under the seat which means "gun" and I said so it's not min[e] and he said it isn't mine either by then the officers were at my window asked for License reg. insurance and ID[.] I didn't have mine and gave them my alias Jermaine Jones which came back as my real name Randy Hayward [.] I was then taken into custody and the gun was found under the seat and Andre took off running.
Commonwealth's Exhibit 6, Hayward Statement.
Prior to [Watley's] trial, Hayward also pled guilty to conspiracy related to the firearms possession and admitted that he was in a vehicle driven by [Watley] that contained two firearms and that he was not licensed to carry such weapons. This information was presented to the jury. When he testified at [Watley's] trial, however, Hayward denied knowing [Watley] or having been with [Watley] on the morning of the stop. In addition, he denied any knowledge of Ecstasy being in the car or that police provided him with his Miranda rights, and he did not remember writing the drops and transactions statement. That statement, which was adopted by Hayward, was introduced as substantive evidence.

Commonwealth v. Watley, 81 A.3d 108, 111-13 (Pa.Super. 2013) (en banc) (footnote omitted).

          Following a jury trial, Watley was convicted of two counts of firearms not to be carried without a license, one count of possession with intent to deliver ("PWID") ecstasy, one count of criminal conspiracy to commit PWID, one count of possession of ecstasy, one count of possession of a small amount of marijuana, one count of false identification to law enforcement, [1]and two summary offenses. The court imposed consecutive sentences of 42-84 months on the firearms charges, 60-120 months on the PWID charge, [2] 4-12 months on the false identification charge, and a consecutive sentence of 15-30 days on the marijuana charge.

Subsequently, as the trial court explained:
[Watley] filed a direct appeal to the Superior Court on May 27, 2011, following the reinstatement of his appellate rights nunc pro tunc. A panel of the Superior Court reversed [Watley's] PWID and conspiracy convictions. The Commonwealth sought reargument, which was granted. Thereafter, [Watley's] sentence was affirmed by the Superior Court. Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013). He filed a petition for allowance of appeal to the Supreme Court, which was denied on July 8, 2014. On June 2, 2015, [Watley] filed a timely petition pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S, § 9541 et seq., which was assigned to the Honorable Paula A. Roscioli as a result of Judge Smith's appointment to the Federal bench in 2014. A hearing on the matter was held on October 9, 2015, and the record left open for additional testimony. The parties then reconvened on October 30, 2015, at which time counsel for [Watley] made an oral discovery motion. That motion was denied in a written opinion by the undersigned on November 12, 2015.

Opinion, 1/27/16, at 1-2 ("PCRA Op.").

         On January 27, 2016, the PCRA court vacated Watley's sentence and ordered re-sentencing to be held on March 11, 2016.[3] The PCRA court explained that, pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014), Watley's mandatory minimum sentence was unconstitutional. PCRA Op. at 7. The PCRA court further explained that Watley's sentence had to be vacated in its entirety because the entire sentencing scheme was impacted. Id. The PCRA court denied Watley's petition in all other aspects. Watley filed a timely notice of appeal on February 19, 2016.[4]

         Watley raises the following issues on appeal:

A. Attorney Sletvold was ineffective for failing to object (or failing to appeal, if the trial record is construed as the Trial Court ruling that such statements were admissible) to the admission of the prior statement and prior guilty plea colloquy of Randy Hayward, given that such prior statements were not inconsistent with Haywards trial testimony.
B. Attorney Sletvold was ineffective for failing to file a motion to suppress evidence found during an unconstitutional search and seizure of the vehicle stopped by the state police.
C. Attorney Sletvold was ineffective for failing to consult with [Watley] prior to trial, failing to call alibi witnesses, and failing to advise [Watley] that it was in his interest to testify at trial.
D.The PCRA Court erred in failing to grant [Watley]'s request that the identification card of Chonce Acey be sent to the Pennsylvania State Police for fingerprint analysis.

Watley's Br. at 4-5 (suggested answers omitted).

         Our standard of review from the denial of post-conviction relief "is limited to examining whether the PCRA court's determination is supported by the evidence of record and whether it is free of legal error." Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). This Court "will not disturb findings that are supported by the record." Id.


         We first address Watley's claims for ineffective assistance of counsel. When analyzing ineffectiveness claims, we begin with the presumption that counsel was effective. Commonwealth v. Spotz, 18 A.3d 244, 259-60 (Pa. 2011). "[T]he defendant bears the burden of proving ineffectiveness." Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009). To overcome the presumption of effectiveness, a PCRA petitioner must demonstrate 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." Id. "A claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any of these prongs." Id. To establish the second ineffectiveness prong, the petitioner must prove that "an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Spotz, 18 A.3d at 260 (quoting Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006)). To establish the third prong, the petitioner "must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or inaction." Id.

         A. Prior Inconsistent Statements

         First, Watley claims that his trial counsel was ineffective for failing to object to (or failing to appeal) the admission of Randy Hayward's prior statement to the police and prior guilty plea colloquy. The prosecution called Hayward as a witness at trial. When Hayward testified that he did not know Watley, the prosecutor first used both Hayward's earlier, signed statement to the police and his sworn guilty plea colloquy in an effort to refresh Hayward's recollection. See N.T., 7/13/10, at 126-41. When that effort proved largely unsuccessful, the prosecutor then used the statements both to impeach Hayward and as substantive evidence of Watley's guilt. See id. at 183.[5] Watley argues that his trial counsel should have objected to the admission of those prior statements on the ground that they were not inconsistent with his trial testimony and therefore inadmissible hearsay. Watley's Br. at 25.

         "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Commonwealth v. McCrae, 832 A.2d 1026, 1034 (Pa. 2003); see Pa.R.E. 801(c). Hearsay is not admissible "except as provided by the Pennsylvania Rules of Evidence, [by other rules prescribed by the Supreme Court of Pennsylvania], or by statute." McCrae, 832 A.2d at 1034; see Pa.R.E. 802. "It is long settled that a prior inconsistent statement may be used to impeach a witness." Commonwealth v. Brown, 448 A.2d 1097, 1102 (Pa.Super. 1982) (quoting Commonwealth v. Hensley, 441 A.2d 431, 435 (Pa.Super. 1982)). "Further, a prior inconsistent statement may be offered not only to impeach a witness, but also as substantive evidence if it meets additional requirements of reliability." Commonwealth v. Carmody, 799 A.2d 143, 148 (Pa.Super. 2002). "The test is a two-part inquiry: 1) whether the statement is given under reliable circumstances; and 2) whether the declarant is available for cross-examination." Id. "With respect to the second prong, cross- examination, the inconsistent statement itself must be the subject of the cross-examination in order to satisfy the test." Id. at 148. At the time of Watley's trial, Pennsylvania Rule of Evidence 803.1 read as follows:

The following statements, as hereinafter defined, are not excluded by the hearsay rule if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement:
(1) Inconsistent Statement of Witness. A statement by declarant that is inconsistent with the declarant's testimony and (a) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (b) is a writing signed and adopted by the declarant, or (c) is a verbatim contemporaneous recording of an oral statement.[6]

         In his brief, Watley contends:

         As a matter of law, Hayward's trial testimony, consisting of "I don't know" and "I don't recall" in response to the Commonwealth's questions, was not inconsistent with his February 20, 2009 statement to the police. As such, neither the statement to the police nor his guilty plea colloquy were admissible as substantive evidence. Watley's Br. at 25 (emphasis in original). In support of this argument, Watley relies chiefly on the following statement in Commonwealth v. Knudsen, 278 A.2d 881, 883 (Pa. 1971):

[O]ur courts have been loathe to allow cross-examination for purposes of impeachment by use of prior statements when a witness states that he does not know or that he cannot remember. This is so for the reason that such an in-court declaration does not harm the calling party nor aid the opposing party.

         We disagree with Watley's contention that Hayward's trial testimony was not inconsistent with his prior written statement and guilty plea colloquy. There is an important distinction between a mere failure of recollection, which might not be inconsistent with an earlier statement, see Commonwealth v. Moore, 340 A.2d 447, 449 (Pa. 1975) ("[W]here the witness has made no assertions which stand in contradiction to statements the witness has made earlier, but merely claims he or she does not know or cannot remember, the prior statements should not be introduced."), and a claimed failure of recollection accompanied by affirmative assertions inconsistent with the earlier statement. While at times during his trial testimony, Hayward professed a failure of recollection, see, e.g., N.T., 7/13/10, at 126, 134, at other times his recollection was quite strong. Most significantly, he repeatedly asserted both that he did not know Watley and that Watley was not in the car with him at the time of the stop. The following passages from Hayward's trial testimony are illustrative:

Q. Exactly. He picked you up again around 11:30 or 12 and told you about a party going on in Easton at the Larry Holmes Ringside.
So you headed that way about 1:15 or so. You're leaving Allentown about 1:15 with Watley in the car, with Watley driving; right? Right? Yes? Correct?
A. I don't know who Watley is.
Q. You don't know who he is?
A. No.
Q. You're writing all about him in the statement, but you're telling these people you don't know who he is?
A. No, I don't.
Q. You made it to the Ringside. You were headed to the Ringside; right? Right? Because he told you about the party's there; is that right? Is that a yes?
A. You keep saying he told me about the party, but I'm telling you I don't know who he is.
Q. Notwithstanding the fact that your entire statement referring to Andre Watley, Andre Watley, Andre Watley, ...

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