J-S34021-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES A. BELLON,
Appellant No. 1472 WDA 2013
Appeal from the PCRA Order August 26, 2013
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0001272-2002
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 07, 2014
2013 order denying his petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant raises a
multitude of issues, the majority of which involve allegations of ineffective
assistance of his trial counsel. After careful review, we affirm.
We summarize the complicated and lengthy procedural history of this
case as follows. On May 9, 2002, the Pennsylvania Office of Attorney
General (OAG) filed a criminal complaint charging Appellant with 23
offenses, including: seventeen counts of possession with intent to deliver a
controlled substance (PWID), two counts of corrupt organizations, and one
count each of criminal conspiracy, criminal use of a communication facility,
stemmed from his involvement in a large-scale drug dealing operation
J-S34021-14
conducted throughout Blair County and several surrounding counties from
1997 through 2001.
Appellant initially entered into a negotiated plea agreement whereby
withdrawing all of the remaining charges and recommending a sentence of
Appellant filed a motion to withdraw his plea. The trial court denied that
peal
his plea should have been granted. Accordingly, we reversed his judgment
of sentence and remanded for trial. Commonwealth v. Bellon, 864 A.2d
574 (Pa. Super. 2004) (unpublished memorandum).
Upon remand, Appellant proceeded to a jury trial and, on August 7,
2006, he was convicted of eleven counts of PWID, two counts of corrupt
organizations, and one count each of conspiracy, criminal use of a
communication facility, and dealing in unlawful proceeds. On April 5, 2007,
affirmed his judgment of sentence. Commonwealth v. Bellon, 29 A.3d
836 (Pa. Super. 2011) (unpublished memorandum).
Appellant filed a pro se PCRA petition on September 30, 2011.
New counsel subsequently entered his appearance and was granted leave to
-2-
J-S34021-14
file, and did file, two more amended petitions. After conducting an initial
hearing to ascertain the precise issues Appellant was raising, the PCRA court
conducted an evidentiary hearing on August 23, 2012. On August 26, 2012,
the court issued an order and a 72-
petition.
Appellant filed a timely notice of appeal.1 Herein, he presents seven
issues, and eight sub-issues, for our review:
I. Was trial counsel ineffective for not pursuing whether the
statute of limitations was violated by alleging criminal conduct in
all of 1997?
II. [] Was trial counsel ineffective for not appropriately moving
for dismissal of charges [when] the case was remanded for trial?
[a.] [] Was trial counsel ineffective for not moving for
dismissal due to res judicata/procedural default and
defect?
[b.] [] Was trial counsel ineffective for not moving for
dismissal due to the expired statute of limitations?
III. Was trial counsel ineffective regarding witness Haralson?
[a.] [] Was trial counsel ineffective for not moving for a
mistrial and dismissal of charges for the inappropriate
[b.] [] Did the Commonwealth commit misconduct by not
fully turning over the plea arrangement and agreement of
witness Haralson?
____________________________________________
1
The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement. Instead, it filed a document advising Appellant that in support of
its denial of his petition, the court would rely on the established record
(assumedly referencing, inter alia, its detailed August 26, 2012 opinion).
-3-
J-S34021-14
IV. [] Was trial counsel ineffective for not further pursuing the
V. [] Was trial counsel ineffective regarding the
witnesses[, Agent] Young and [Agent]
Feather?
[a.] [] Was trial counsel ineffective in allowing Agent
Young to testify as an expert?
[b.] [] Was trial counsel ineffective in allowing Agent
[c.] [] Was trial counsel ineffective in allowing Agent Young
to testify as an expert to the credibility of witnesses?
[d.] [] Was trial counsel ineffective in not objecting to
further testimony by Agent Feathers?
VI. [] Does newly pertinent case of [Alleyne v. U.S., 133 S.Ct.
2151 (2013)] apply?
VII. [] Was trial counsel ineffective for not objecting to
misconduct by the prosecutor?
-76.
To begin we note that
or denial of post-conviction relief is limited to examining whether the lower
Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.
1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa.
1995)). Where, as here, a petitioner claims that he received ineffective
assistance of counsel, our Supreme Court has stated that:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sen
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
-4-
J-S34021-14
performance is presumed to be
constitutionally adequate, and counsel will only be deemed
ineffective upon a sufficient showing by the petitioner. To obtain
was deficient and that the deficiency prejudiced the petitioner. A
unprofessional errors, the result of the proceeding would have
m of ineffectiveness
posits that: (1) the underlying legal issue has arguable merit;
omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).
for failing to challenge the criminal complaint and/or information on two
grounds. First, Appellant claims that both the criminal complaint and
criminal information violated the Pennsylvania Rules of Criminal Procedure
between 1997
about
date within the applicable statute of limitations (SOL). See Pa.R.Crim.P.
committed on or about any date within the period of limi
Pa.R.Crim.P. 506(B)(3) (requiring that criminal information allege that the
-5-
J-S34021-14
2
consequently,
it is waived. See
see e.g.
Commonwealth v. Rainey, 928 A.2d 215, 226 (Pa. 2007) (stating that
claims not raised in the PCRA petition are waived).
Appellant also contends that his trial counsel should have challenged
the criminal complaint and information because it alleged criminal activity
that occurred outside of the applicable five-year SOL.3 Specifically, it
appears that Appellant takes issue with count 1 in the criminal information,
Information, 5/9/02, at 1 (unnumbered pages). Appellant maintains that
because the criminal complaint was filed on May 9, 2002, any criminal
conduct that occurred between January 1, 1997 and May 8, 1997 fell outside
of the five-year SOL.4 Therefore, he argues that his trial counsel should
instruction informing the jury that in order to convict Appellant, it must
____________________________________________
2
pro se petition, as
well as the three counseled amendments thereto.
3
The parties do not dispute that the applicable SOL is five years. See 42
Pa.C.S. § 5502(b)(2).
4
Appellant claims that the criminal complaint was filed on May 2, 2002. The
PCRA court, however, states that it was filed on May 9, 2002. Our review of
the certified record supports the date used by the PCRA court.
-6-
J-S34021-14
84.
Initially, Appellant did not argue in his PCRA petition, or at the PCRA
hearing, that counsel was ineffective for failing to request a jury instruction
regarding the SOL issue.5 Therefore, that argument is waived. See
Pa.R.A.P. 302(a); Rainey, 928 A.2d at 226.
pretrial motion seeking dismissal of [the] PWID charges on grounds that
Pro Se PCRA Petition, 9/30/11,
at 3. Appellant has failed to even argue, let alone prove, that he was
explain why the Commonwealth could not have simply amended the criminal
information upon an objection by defense counsel. See Pa.R.Crim.P. 564
in form, the description of the offense(s), the description of any person or
any property, or the date charged, provided the information as amended
ineffective representat
liability may not be imposed upon acts committed outside the limitations
Commonwealth v. Purcell, 589 A.2d 217, 234 (Pa. Super. 1991)
____________________________________________
5
Consequently, the PCRA court did not address this claim.
-7-
J-S34021-14
(citations omitted). Here, the PCRA court concluded that the
were committed, continuously, from late 1997 through March of 2001. See
PCRA Court Opinion, 8/26/12, at 26-28. The court noted the testimony of
Commonwealth witness Norman Ransom, who stated that in 1997 he and
Appellant agreed to begin a drug-selling operation. N.T. Trial, 7/31/06, at
-
funding of $2,000 to purchase crack cocaine. Id. at 23-24. Ransom stated
late Id. at
24 (emphasis added).
-selling activity began at the end of
1997. While Appellant contends that the SOL issue should have been
determined by the jury,6
testimony, the jury would have concluded that his PWID offenses occurred
between January 1, 1997 and May 8, 1997. Accordingly, he has not proven
See
Commonwealth v. Spotz
____________________________________________
6
See Commonwealth v. Bethlehem, 570
Commonwealth is required to prove as an element of every criminal offense
omitted).
-8-
J-S34021-14
s unprofessional errors, the result of the proceedings
-parts), he
alleges that his trial counsel was ineffective for not moving to dismiss the
charges that were reinstated after he withdrew his guilty plea. To reiterate,
Appellant initially pled guilty in this case and, after the trial court denied his
presentence motion to withdraw his guilty plea, he was sentenced on the
seven counts of PWID to w
20, 2003 sentencing order, it stated that the remaining 16 counts were
nolle prossed
appealed to this Court and, upon concluding that the trial court should have
sentence and remanded for trial. Upon remand, the Commonwealth
nolle prossed
03 sentencing order.
ability to reinstate those 16 charges. The trial court concluded that because
the sentencing order dismissing those charges had been vacated by this
Court on direct app
Opinion, 2/7/06, at 10. In other words, the trial court concluded that the
Commonwealth could prosecute Appellant for all 23 counts originally
charged.
-9-
J-S34021-14
Following his trial and conviction, Appellant once again appealed to
this Court, arguing that the trial court erred in allowing the Commonwealth
to reinstate the 16 charges that had been nolle prossed and dismissed.
Commonwealth v. Bellon, 1213 WDA 2009, unpublished memorandum at
4 (Pa. Super. filed April 18, 2011) (citation omitted). In rejecting this claim,
our Court stated, in pertinent part:
logic, a defendant could plead guilty in exchange for the
guilty plea, and then prevent the Commonwealth from
reinstituting the charges that had been withdrawn as part of plea
negotiations. This position is untenable. A plea agreement is
exactly that, an agreement. Once the defendant withdraws the
agreement, the parties stand in the same position as they did
before its entry. Thus, all of the charges against Appellant
could lawfully be prosecuted after he withdrew his guilty
plea. See Commonwealth v. Rose, 820 A.2d 164 (Pa. Super.
2003). To hold otherwise would result in defendants gaming the
system by pleading guilty and withdrawing their pleas by
proclaiming innocence solely to reduce the number of charges.
Id. at 12 (emphasis added).
reinstatement of the at-issue charges. However, this time, Appellant frames
the issue as an ineffective assistance of counsel claim. Specifically, he
argues that counsel should have objected to the reinstatement of the
charges on the grounds that it violated the doctrine of res judicata. He also
- 10 -
J-S34021-14
lude that Appellant was lawfully
prosecuted on all of the original 23 counts with which he was charged.
considered and decided a question submitted to it on appeal, it will not upon
a subsequent appeal on another phase of the same case, reverse its
Albright v.
Wella Corp., 359 A.2d 460, 463 n.4 (Pa. Super. 1976) (citing Burke v.
Pittsburgh Limestone Corp., 100 A.2d 595, 598 (Pa. 1953)).
charges against Appellant could lawfully be prosecuted after he withdrew his
Bellon, 1213 WDA 2009, at 12. Not only do we agree with
that determination and the rationale underlying it, but even if we did not,
the law of the case doctrine compels us to adhere to it. The fact that
Appellant attempts to once again challenge the reinstatement of the charges
on slightly different grounds does not permit this Court to reach a different
result.7 -parts thereof,
are meritless.
____________________________________________
7
We note that the PCRA court reached the same conclusion, finding that it
at 33.
- 11 -
J-S34021-14
Next, Appellant contends that his trial counsel was ineffective based on
two ostensible errors regarding the testimony of Commonwealth witness
Charles Haralson. In regard to his first complaint, Appellant essentially
contends that the Commonwealth discovered that Mr. Haralson committed
perjury during his testimony before a grand jury in this case, yet the
no steps whatsoever other than to casually bring it to
perjury, yet he does not
specify precisely what the Commonwealth was required to do differently.
Moreover, despite conceding that during cross-examination his counsel
Appellant contends that his trial counsel acted ineffectively by not objecting
Id.
at 88-89.
a claim of ineffective assistance grounded in trial counsel's
failure to object to a prosecutor's conduct may succeed when the
petitioner demonstrates that the prosecutor's actions violated a
constitutionally or statutorily protected right, such as the Fifth
Amendment privilege against compulsory self-incrimination or
the Sixth Amendment right to a fair trial, or a constitutional
interest such as due process. To constitute a due process
violation, the prosecutorial misconduct must be of sufficient
significance to result in the denial of the defendant's right to a
fair trial. The touchstone is fairness of the trial, not the
culpability of the prosecutor.
- 12 -
J-S34021-14
Commonwealth v. Koehler, 36 A.3d 121, 144 (Pa. 2012) (citations and
internal quotation marks omitted).
duct in
Id.
examination of Mr. Haralson, she revealed the issue of his perjured grand
jury testimony, explicitly asking Mr. Haralson if he had testified truthfully.
N.T. Trial, 8/3/0, at 10. He stated that he had not. Id. The prosecutor
Id. at 10-11. Mr. Haralson responded that he did
understand those facts. Id. at 10-11.
Then, on cross-
acknowledged that he lied during his grand jury testimony. Id. at 21.
Id. at 22. Counsel
then questioned Mr. Haralson as follows:
[Trial Counsel]: So why should the jury believe you now when
you already admitted that you lied under oath?
[Trial Counsel]: Alright. But the grand jury thought you were
speaking the truth [t]here, correct?
[Mr. Haralson]: Yes.
- 13 -
J-S34021-14
[Mr. Haralson]: Yes.
[Mr. Haralson]: Yes.
Id. at 22.
Based on this evidence, the PCRA court conclud
Opinion at 40. We agree. Consequently, we conclude that trial counsel was
not ineffec
Additionally, the record confirms that counsel had a reasonable basis
for not doing so. For instance, when asked at the PCRA hearing whether it is
following exchang
trial counsel:
[The Commonwealth]: And you also asked a series of questions
to Mr. Haralson about him lying to the grand jury in order to
discredit him before the jury?
[Trial Counsel]: Yes.
[The Commonwealth]: So, even though you may not have filed a
motion to preclude Mr. Haralson as a witness, your strategy was
- 14 -
J-S34021-14
[Trial Counsel]: Correct, because that fit our whole defense
scheme which was prosecutorial misconduct and [the] lengths
that they would go to prosecute [Appellant].
Id. at 41-
designed to bolster Appellant
claim of ineffectiveness fails on this basis, as well.
claims that the Commonwealth violated Brady v. Maryland, 83 S.Ct. 1194
(1963), by not di
Brady claim. There, Mr. Haralson stated that in exchange for testifying at
he subsequently pled guilty. N.T. PCRA Hearing, 8/23/12, at 6-7.
exchange:
[PCRA Counsel]: Okay. Now, I guess the key question, Mr.
Haralson, is when did you know that your cooperation against
[Appellant] was going to aid you in your federal plea?
[Mr. Haralson]: Before --- before trial, I was told that whatever
needed to be done was gonna be done to help me out.
Id. at 6. Mr. Haralson clarified that these statements were made by both
Assistant District Attorney Jackie Bernard (ADA Bernard) and Pennsylvania
Office of Attorney General Narcotics Agent Randy Feathers (Agent Feathers).
Id. at 11.
- 15 -
J-S34021-14
However, on cross-examination, it was revealed that the federal
charges against Mr. Haralson had not even been filed until November 15,
2006, several months after Mr. Haralson testified against Appellant in late
July and early August of 2006. Id. at 10. Mr. Haralson was also asked on
cross-
specific agreement,
understanding or promise with the Commonwealth where the
Id. at 14. Mr.
Id. at 14-15.
trial, she disclosed to defense counsel that the Commonwealth had entered
into three plea agreements with Mr. Haralson in state court. Id. However,
she repeatedly maintained that she never entered into an agreement with
Mr. Haralson, nor made any promises to him, regarding his federal case. Id.
at 103, 106. Indeed, ADA Bernard testified that she did not recall even
knowing
Id. at 104. She also stated that there was no
Id.
- 16 -
J-S34021-14
sentencing transcript for [Mr.] Haralson [] indicates that there was
communication made from [her] and/or [Assistant District Attorney] Dave
Id. at
103. When asked to explain further, ADA Bernard stated:
[ADA Bernard]: Well, the [federal] case against Mr. Haralson
was not even brought until after the trial for [Appellant]. I do
recall [ADA] Gorman asking me if Haralson had testified in
did relay back to him that he had. He apparently had a phone
conversation or a phone call, I should say, from John Valkovci,
Id. at 104.
ADA Gorman also took the stand at the PCRA hearing. He testified
that he could not recall having a conversation with federal authorities about
Id. at 96. However, he
testified that it was possible that federal authorities had contacted him in
this regard and he simply relayed to them that Mr. Haralson had testified
Id. at 96.
stated that he never entered into any agreement or made any promise to
Mr. Haralson regarding his federal case. Id. at 55-56. Indeed, he testified:
ever would tell somebody that I could handle something another agency was
- 17 -
J-S34021-14
Id. at 56. Agent
Feathers also stated that he never heard ADA Bernard make any promises to
Mr. Haralson regarding his federal case. Id. at 56.
Based on this evidence, we ascertain no abuse of discretion in the
Brady claim. Initially, Appellant does not
explain when he discovered the purported deal with Mr. Haralson in order to
satisfy his burden of proving that he could not have raised this claim on
direct appeal. See 42 Pa.C.S. § 9543(a)(3) (stating that to be eligible for
has not been previously lit
trial, at trial, during unitary review, on appeal or in a prior state
s waived.
Nevertheless, based on the evidence presented at the PCRA hearing,
we would conclude this Brady assertion is meritless. Even if ADA Bernard
and/or Agent Feathers suggested to Mr. Haralson that they would make his
known in any future criminal proceedings,
such a suggestion did not constitute an agreement or promise that had to be
disclosed under Brady. See Commonwealth v. Burkhardt, 833 A.2d 233,
243-
truthful testimony and cooperation would be considered in future
Brady, as such a
- 18 -
J-S34021-14
represents nothing more than the type of ge
sentencing hearing, ADAs Bernard and Gorman answered honestly when
asked
trial. See Commonwealth v. Russell, 665 A.2d 1239, 1244 (Pa. Super.
1995) (concluding that the fact that a homicide detective responded to
inquiries by a federal prosecutor rega
Brady claim would fail
even if it were not waived.
responded to a request for a Bill of Particulars filed by Appellant. In
f Particulars Nunc Pro Tunc
contended that the criminal information was insufficiently specific regarding
the dates of his alleged offenses. Specifically, Appellant took issue with the
fact that for many of his offenses, the criminal information simply stated the
year in which the crime occurred. For the remaining offenses, the
information only specified a time-frame of several months of a particular
year, which Appellant also claimed was inadequate. Accordingly, Appellant
requested that the court order the Commonwealth to file a Bill of Particulars,
- 19 -
J-S34021-14
providing more specific dates of his alleged crimes. The court ultimately
Therein, the Commonwealth again stated the year in
See
Request for Bill of Particulars, 2/27/06, at 1.
Particul
namely, an alibi defense for the year of 1997.
of
Particulars
daily
considering the circumst
Having heard the evidence at trial, the Court understands
Particulars. Indeed, based on the testimony of Norman Ransom,
[Appellant] possessed cocaine literally every day he was in Blair
County with the intent to deliver it to various individuals
including passing out free samples to encourage customers.
testimony of Norman Ransom
- 20 -
J-S34021-14
was entirely consistent with the evidence which they presented.
The testimony of Norman Ransom was supported by Theresa
Rickabaugh Givens who described specific purchases from
[Appellant] which she testified commenced in 1997 and then
You know I did some calculating when I was going through
the transcript in this matter if I gave you a 30 year
sentence there would be I would not be giving you a one
day per crime sentence. In other words, if you take 30
years and you multiply it by 365 [days,] more crimes were
committed in your name or by you than there are days in
30 years and you were central to every one of those
crimes.
(See transcript of Sentencing Proceeding April 5, 2007,
Pages[]48-49).
PCRA Court Opinion at 34-35.
stated that
daily
counsel was not ineffective for failing to seek further clarification of the
Furthermore, even if this claim of ineffectiveness had arguable merit,
Appellant has not demonstrated that he was prejudiced. Appellant avers
that his defense was hampered by the lack of specificity in the criminal
to present an alibi defense for the PWID offense committed in 1997.
However, at the PCRA hearing, Appellant stated that he told trial counsel he
was not present in Blair County at any time in 1997; instead, he told counsel
he arrived in Blair County in March of 1998. N.T. PCRA Hearing at 149. As
- 21 -
J-S34021-14
more specific averment as to when in 1997 he committed PWID would not
ogic is convincing. Accordingly, even if this claim of
ineffectiveness had arguable merit, we would conclude that Appellant has
-issues) involves trial
testimony of Agent Young regarding
an encounter [the agent] had with Appellant at a basketball
court in Altoona. Agent Young approached [] Appellant about a
large missing sum of police money and angrily confronted []
Appellant. [] Appellant indicated he felt he had to respond to
vidence amounted to a confession that []
Appellant had been involved in the business of selling narcotics.
y
Id. at 95-96.
bald claim that a suppression motion would likely have been granted,
Appellant offers no explanation as to why the court would have suppressed
- 22 -
J-S34021-14
Agent Young. Therefore, Appellant has failed to prove his ineffectiveness
claim has arguable merit. See Commonwealth v. Cope, 518 A.2d 819,
In any event, we would also agree with the PCRA
that trial counsel had a reasonable basis for not seeking to exclude Agent
not filing a motion to suppress this evidence as follows:
[Trial Counsel]: The biggest reason would probably be that
obviously since it was outside; [Appellant] was not in custody so
obviously Miranda, even though I disagree with it --- the rulings
on most of them --- but you have to be in custody; he has to be
subject to custodial interrogation. Obviously, the argument
between [Appellant] and [Agent] Young over ten thousand
dollars ($10,000) fit neither of those criteria and that
conversation, again, I think was important because it fit our
defense that that was one of the reasons they were so gung-ho
to convict [Appellant] at all costs.
N.T. PCRA Hearing at 44.
From this testimony, the PCRA court concluded:
Having reviewed the trial transcript we see the merit of [trial
good tactic as the evidence was (arguably) valuable to the
Defense at trial. Indeed, our review suggests this was the
clearest evidence the Defense had during the entire proceeding
that the Commonwealth was setting [Appellant] up and was
angry with him.
Accordingly, since the strategy [trial counsel] adopted (included)
admission of the conversation/argument between [Appellant]
to get t
- 23 -
J-S34021-14
[Appellant] in front of the jury. In that pivotal respect, the
Defense had to choose. The choice [trial counsel] made was
clearly legitimate as he explained it and [it was] consistent (in
fact important) to the Defense strategy at trial.
PCRA Court Opinion at 46-
determination. Consequently, even if Appellant had satisfied the arguable
merit prong of the ineffectiveness test, we would conclude that counsel had
testimony.
witness. Appellant maintain
weight Id. at 98-99. Appellant
witnesses that testified during the Id.
with the expert qualification, it would be plain error for an expert to bolster
the credibility of other lay witnesses, yet this was exactly what was
Id. at 97-98.
- 24 -
J-S34021-14
laim that counsel should have objected to Agent
credibility of other witnesses is waived for two reasons. First, Appellant did
not raise this claim in his PCRA petition. See Pa.R.A.P. 302(a); Rainey, 928
A.2d at 226. Second, Appellant provides no citation to where in the record
this ostensibly improper testimony by the agent occurred. Indeed, Appellant
does not even name the four witnesses on whose credibility Agent Young
allegedly commented. Consequently, this specific assertion is waived. See
Pa.R.A.P. 302(a); Commonwealth v. Berry, 877 A.2d 479, 485 (Pa. Super.
In
arguable merit. This Court recently stated that Pennsylvania Rules of
opinions, in the capacity as both a lay and an expert witness on matters that
may embrace the ultimate issues to be decided by the fact-
Commonwealth v. Huggins, 68 A.3d 962, 967 (Pa. Super. 2013), appeal
denied, 80 A.3d 775 (Pa. 2013).
Furthermore, Appellant did not establish that counsel made an
basis. At the PCRA hearing, Appellant only questioned trial counsel
- 25 -
J-S34021-14
testimony on the basis that the Commonwealth failed to disclose that Agent
Young would be offered as an expert witness. See N.T. PCRA Hearing at 30.
PCRA hearing concerning whether trial counsel should have objected to
but was only testifying as a fa
Id. The record confirms
ellant
has not met his burden of pleading and proving
this regard.
portion of
[Agent Feathers]: No, in my experience with corrupt
direct buys from the leaders.
[The Commonwealth]: And do you have an expert opinion on the
role [Appellant] played in this organization?
[The Commonwealth]: And what is that?
- 26 -
J-S34021-14
for the fact finder.
going to sustain the objection. Another question, [ADA]
Bernard.
[The Commonwealth]: Thank you, your Honor. You said that
your interest was peaked [sic] once you spoke to Mr. Butler and
you found out the amounts of money that Mr. Butler owed
r answer.
Why was your interest peaked [sic]?
[Agent Feathers]: Well, this individual had owed [Appellant]
fifty-six hundred dollars ($5,600) on a front. To me as an expert
indicated to me that Mr. Butler was himself somewhat of a major
dealer and he was going to his source, which I believed was a
major dealer, [Appellant], just due to the amount of money
involved.
N.T. Trial, 8/4/06, at 263-64.
Appellant argues that trial counsel should have renewed his objection
Id. at 264.
Appellant maintains that
had this been a minor detail or low evidentiary worth question,
the inaction [of counsel] may have been excusable; however,
this question was of significant evidentiary value. Allowing
Appellant to be labeled by an expert witness as a major drug
intents and purposes handed the [Commonwealth] convictions
signed, sealed and delivered.
- 27 -
J-S34021-14
Appellant provides no discussion of the basis on which counsel should
why such an objection would likely have been sustained. Indeed, the PCRA
court concluded that an objection to the above-quoted testimony by Agent
court reasoned, in relevant part:
[Agent Feathers] answered the question he was asked as to why
his interest was piqued. In his response, he indicated that both
Mr. Butler and [Appellant] appeared (due to the amount of
money involved) as major dealers. At the conclusion of a seven
day trial there was no nuclear rocket science in that opinion by
PCRA Court Opinion at 62-63. Because Appellant offers no argument
meritless, we conclude that Appellant has failed to prove that his
ineffectiveness claim regarding Agent Feather
merit. See Cope, 518 A.2d at 820.
of trial counsel ineffectiveness. Instead, Appellant attacks the legality of his
sentence under the Supreme Court of the Un
Alleyne
Id. at 2155.
multiple mandatory sentence enhancements without the benefit of a
- 28 -
J-S34021-14
Brief at 100-101. Consequently, he maintains that under Alleyne, his
mandatory sentences must be vacated as illegal.
We disagree. Alleyne was decided on June 17, 2013, nearly two
that rule applies to all criminal cases still pending on direct review. As to
convictions that are already final, however the rule applies only in limited
Schriro v. Summerlin, 124 S.Ct. 2519, 2522 (2004). In
Id.
at 2522-2523.
addressed the retroactivity of Alleyne
this Court should undertake such an analysis. Instead, he asserts that we
should apply Alleyne to his case because he
has continually remained in the appellate process since his
conviction. This includes direct appeals and the instant PCRA
appeal. One of the issues challenged both at the direct appeal
level and in the instant PCRA was the aggregation of weights [of
the drugs] and the resulting application of mandatory sentences.
Since day one of the appeals process[,] [] Appellant has
contended that what eventually became the Alleyne decision
was the appropriate rule of law.
- 29 -
J-S34021-14
became final prior to the decision in Alleyne; therefore, his case was not
Alleyne was issued. Schriro, 124 S.Ct. at
2522. We cannot ignore these facts and apply Alleyne on collateral review
not demonstrated that he is entitled to retroactive application of Alleyne.
In
ineffective for not objecting to particular instances of prosecutorial
misconduct as well as not moving for dismissal due to the cumulative nature
s Brief at 102. In support of this
claim, Appellant essentially rehashes the same arguments proffered in
several of his previous issues. Namely, Appellant asserts that (1) the
the criminal information; (2) the Commonwealth committed a Brady
violation with regard to an agreement with Charles Haralson; (3) the
testimony; and (4) the Commonwealth impermissibly elicited testimony from
Id. at 104. We thoroughly addressed each of these claims, infra,
and concluded
final issue is meritless.
- 30 -
J-S34021-14
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2014
- 31 -
Com. v. Bellon, C.
Combined Opinion