J-S07042-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHAKHANNAH DUPREAY SMITH
Appellant No. 1184 MDA 2014
Appeal from the Order Entered July 8, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000192-2011
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED MAY 26, 2015
Chakhannah Dupreay Smith appeals from the order entered in the
Lycoming County Court of Common Pleas, dated July 8, 2014, dismissing his
first petition filed under the Post-Conviction Relief Act (“PCRA”).1 Smith
seeks relief from the judgment of sentence of four to eight years’
incarceration imposed on September 20, 2011, after pleading guilty to one
count of persons not to possess firearms.2 On appeal, Smith raises a claim
of PCRA court error with respect to the credibility of a witness. Based on the
following, we affirm.
The PCRA court set forth the factual background as follows:
____________________________________________
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 6105(c)(2).
J-S07042-15
On January 27, 2011, Smith was charged with two criminal
counts. Under Count I, Smith was charged pursuant to 18
Pa.C.S. § 6105 (Persons Not to Possess a Firearm), a felony in
the second degree and under Count II he was charged pursuant
to 35 P.S. [§] 780-113[(a)](31) (Possession of a Small Amount
of Marijuana), a misdemeanor. At that time, Mr. John G[i]rardi,
a Pennsylvania State Parole Agent, supervised Smith related to a
life sentence Smith received in New York State for a drug
conviction in 1997. Subsequent to the New York conviction,
Smith was also convicted for drug related charges locally. In
2004, Smith was convicted in Clinton County for possession with
intent to deliver. Smith was convicted twice in Lycoming County
for selling drugs. Smith received a 2-5 year sentence for a drug
related conviction in Lycoming County on 2007 charges. On
January 27, 2011, Girardi had been supervising Smith for New
York State for about 8 months.
…
While under the supervision of Agent Girardi, Smith
resided with his mother at 617 High Street in Williamsport,
Pennsylvania. The residence was subject to a home approval by
parole and an agreement permitting searches. As the agent
supervising Smith related to Smith’s life sentence, Girardi was
well aware of Smith’s criminal convictions for selling and
possessing drugs. Agent Girardi received 3 tips from 3 separate
individuals over the course of 3 weeks about Smith using or
selling drugs. The most recent tip came from an anonymous
female who left a message stating that Smith was selling drugs.
On January 27, 2011, Agent Girardi orchestrated a home visit of
Smith’s residence. Girardi requested assistance from the
Williamsport Police to use their[] K-9 drug detection dog.
(Lycoming parole agents lost their drug detection dog because of
funding.) Agent Girardi conducted a home visit of Smith’s
residence. Girardi knocked on the door and was granted
permission to enter the residence. The K-9 officer, Officer Roy
Snyder, did not enter the residence at that time. Upon entry
into the residence, Girardi smelled marijuana. Shortly thereafter
Girardi requested that Snyder deploy the drug detection dog.
Once in the residence, the dog alerted to a black nylon luggage
bag. A search of the bag revealed an automatic pistol and New
York State Correction paperwork with Smith’s information. The
dog also found a partially smoked marijuana cigarette in plain
view on a dresser in a bedroom at the residence where Smith
lived. The cigarette tested positive for marijuana. As a
-2-
J-S07042-15
convicted felon on parole, it was unlawful for Smith to possess a
firearm and a parole violation to have marijuana at his
residence.
PCRA Court Opinion, 5/29/2014, at 1-2.
Following his arrest, Smith filed a petition for writ of habeas corpus,
which was denied on May 25, 2011. On September 20, 2011, Smith pled
guilty to one count of persons not to possess firearms. The possession of
marijuana charge was dismissed. That same day, the court sentenced Smith
to a term of four to eight years’ incarceration.
Smith did not file a direct appeal, but did file a pro se PCRA petition on
September 21, 2012. Counsel was appointed, who filed an amended
petition on February 22, 2013. Subsequently, on April 17, 2013, new
counsel was appointed to represent Smith. Two evidentiary hearings were
held on February 27, 2014, and May 13, 2014. On May 29, 2014, the PCRA
court entered an order and opinion, pursuant to Pa.R.Crim.P. 907, of its
intent to dismiss the petition unless Smith filed an objection within 20 days.3
Smith filed objections to that order on June 13, 2014. Nevertheless, on July
8, 2014, the court dismissed Smith’s PCRA petition. This timely appeal
followed.4
____________________________________________
3
We note Rule 907 is reserved for disposition of a PCRA petition where
there is no evidentiary hearing.
4
On July 17, 2014, the PCRA court ordered Smith to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
(Footnote Continued Next Page)
-3-
J-S07042-15
On appeal, Smith raises one issue:
Did the lower court err when it found testimony of Officer John
Girardi concerning tips from parolees credible in light of the fact
that Officer Girardi testified differently at [Smith]’s preliminary
hearing?
Smith’s Brief at 6.
Our standard and scope of review for the denial of a PCRA petition is
well-settled:
[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and
reviews its conclusions of law to determine whether they are free
from legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.
Commonwealth v. Charleston, 94 A.3d 1012, 1018-1019 (Pa. Super.
2014) (citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).
To be eligible for PCRA relief, [the a]ppellant must prove by a
preponderance of the evidence that his conviction or sentence
resulted from one or more of the enumerated circumstances
found at 42 Pa.C.S. § 9543(a)(2) (listing, inter alia, the
ineffective assistance of counsel and the unavailability at the
time of trial of exculpatory evidence, which would have changed
the outcome of the trial had it been introduced).
Commonwealth v. Koehler, 36 A.3d 121, 131-132 (Pa. 2012).
We initially note that Smith’s brief is poorly constructed. Smith’s
argument centers on the assertion that the “PCRA court made a controlling
_______________________
(Footnote Continued)
Smith filed a concise statement on July 25, 2014. The PCRA court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on September 22, 2014, relying on its
May 29, 2014, and July 8, 2014, opinions and orders. The Commonwealth
did not file a responsive brief in this matter.
-4-
J-S07042-15
credibility determination with respect to Officer Girardi’s testimony that was
not supported by the record.” Id. at 11. He points to alleged discrepancies
in statements made by Agent Girardi, while testifying at the February 4,
2011, preliminary hearing and at the May 13, 2014, PCRA hearing, as to the
agent’s reasonable suspicion that permitted the search of Smith’s residence.
Id. at 11-13. On its face, this argument does not qualify under any of the
enumerated errors found at 42 Pa.C.S. § 9543(a)(2) that would make Smith
eligible for relief.
Nevertheless, we are able to discern from Smith’s amended PCRA
petition, his objections to the Rule 907, and one statement in his brief that
he is actually arguing trial counsel was ineffective for counseling him to
accept a guilty plea rather than to file a motion to suppress based on the
agent’s alleged lack of reasonable suspicion. Consequently, he complains
that because of counsel’s ineffectiveness, his guilty plea was not voluntary,
knowing, or intelligent because the evidence would have been suppressed if
counsel filed such a motion. See Amended Petition for Post-Conviction
Collateral Relief and Certified Statement of Defendant, 2/22/2013;5 see
____________________________________________
5
In the amended petition, Smith asserted the following:
5. [Smith] was denied his constitutionally guaranteed right to
effective representation when trial counsel advised [Smith] that
there was no reason to request a suppression hearing.
(Footnote Continued Next Page)
-5-
J-S07042-15
also Smith’s Brief at 12 (“This [testimony at the preliminary hearing] goes
to the very heart of [Smith]’s ineffective assistance argument because the
issue of reasonable suspicion was never contested.”).
With respect to a claim of ineffective assistance of counsel, we are
guided by the following:
It is well-settled that counsel is presumed effective, and to rebut
that presumption, the PCRA petitioner must demonstrate that
counsel’s performance was deficient and that such deficiency
prejudiced him. Strickland v. Washington, 466 U.S. 668,
687-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674, (1984). This Court
has described the Strickland standard as tripartite by dividing
the performance element into two distinct components.
Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975
(Pa. 1987). Accordingly, to prove trial counsel ineffective, the
petitioner must demonstrate that: (1) the underlying legal issue
has arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) the petitioner was prejudiced by
counsel’s act or omission. Id. A claim of ineffectiveness will be
denied if the petitioner’s evidence fails to satisfy any one of
these prongs.
Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013), cert. denied, 135
S.Ct. 50 (U.S. 2014).
_______________________
(Footnote Continued)
6. The prejudicial ineffectiveness of trial counsel so undermined
the truth determining process that no reliable adjudication of
guilt or innocence could have taken place.
7. [Smith]’s guilty plea was not voluntary, knowing, and
intelligent.
8. [Smith] asserts that he relied upon trial counsel’s advice that
all evidence was admissible when he entered his plea.
Amended Petition for Post-Conviction Collateral Relief and Certified
Statement of Defendant, 2/22/2013, at 1.
-6-
J-S07042-15
In his argument, Smith fails to address any of the three prongs of the
ineffectiveness test directly. Accordingly, we find he fails to overcome the
presumption of counsel’s effectiveness. “Counsel’s assistance is deemed
constitutionally effective once this Court determines that the defendant
has not established any one of the prongs of the ineffectiveness test.”
Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (citation
omitted) (emphasis in original). Therefore, his claim fails.
Additionally, his argument would merit no relief. As noted above,
Smith claims the PCRA court erred in finding Agent Girardi’s testimony
credible. With respect to this assertion, we are guided by the following:
[W]e must defer to the PCRA court’s findings of fact and
credibility determinations, which are supported by the record.
[Commonwealth v. Johnson, 600 Pa. 329, 345, 966 A.2d 523,
532 (2009)] (“The findings of a post-conviction court, which
hears evidence and passes on the credibility of witnesses, should
be given great deference.”) (quotation and quotation marks
omitted). The PCRA court, and not the appellate courts, has
personally observed the demeanor of the witnesses, and as we
indicated in Johnson, when a PCRA hearing is held, “we expect
the PCRA court to make necessary credibility determinations.”
Id. at 358, 966 A.2d at 539. See Commonwealth v.
Basemore, 560 Pa. 258, 293-94, 744 A.2d 717, 737 (2000)
(offering that particularized assessment of the credibility of
testimony is essential to resolution of ineffectiveness claims and
that such assessment “is most appropriately accomplished, in
the first instance, by the finder of fact”).
Commonwealth v. Spotz, 84 A.3d 294, 319 (Pa. 2014).
Here, the PCRA found the following:
The Court … notes that the difference in [Agent Girardi’s]
testimony at the preliminary hearing as compared to the PCRA
hearing is consistent with the differences in the purpose of those
proceedings. At the preliminary hearing it was determined
-7-
J-S07042-15
whether there was sufficient evidence to proceed at trial whereas
one of the issues at the PCRA hearing was whether the parole
officer had a reasonable suspicion to search the residence. As a
result, the testimony elicited may have had a different focus. To
find in [Smith]’s favor in the PCRA petition, this Court would
have had to find that Officer Girardi was not credible. Instead,
this Court found Officer Girard[i]’s testimony credible.
Order, 7/8/2014, at 1-2.
We agree with the PCRA court’s sound analysis and reiterate that
credibility determinations are vested solely with the PCRA court. See
Spotz, supra. Accordingly, we discern no error on the part of the PCRA
court in dismissing Smith’s contention that Agent Girardi was an incredible
witness. Therefore, his sole claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2015
-8-