from the PCRA Order January 27, 2016 In the Court of Common
Pleas of Northampton County Criminal Division at No(s):
BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.
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.
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
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
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, and two summary offenses. The court imposed
consecutive sentences of 42-84 months on the firearms
charges, 60-120 months on the PWID charge,  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.").
January 27, 2016, the PCRA court vacated Watley's
sentence and ordered re-sentencing to be held on March 11,
2016. 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.
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
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).
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
INEFFECTIVE ASSISTANCE OF COUNSEL
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.
Prior Inconsistent Statements
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
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.
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.
brief, Watley contends:
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
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
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?
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, ...