J-S30015-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY DWIGHT ANDERSON, III
Appellant No. 2673 EDA 2014
Appeal from the PCRA Order August 14, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007545-2009
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 06, 2015
Appellant, Anthony Dwight Anderson, III, appeals from the order
entered in the Bucks County Court of Common Pleas, which denied his first
petition brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We
affirm.
In its opinion, the PCRA court fully and correctly sets forth the relevant
facts and procedural history of this case.2 Therefore, we have no reason to
restate them. We add only that Appellant timely filed a notice of appeal on
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
2
The court conducted PCRA hearings on April 12, 2013, September 19,
2013, and April 2, 2014. At page three of the PCRA court’s opinion, the
court states it held a PCRA hearing on September 13, 2013; that PCRA
hearing actually occurred on September 19, 2013.
J-S30015-15
September 12, 2014. On September 16, 2014, the court ordered Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant timely filed his concise statement on October
6, 2014.
Appellant raises the following issues for our review:
WHETHER TRIAL COUNSEL WAS INEFFECTIVE WHEN HE
FAILED TO REQUEST A MISTRIAL AND PRESERVE THE
ISSUE OF PROSECUTORIAL MISCONDUCT FOR APPELLATE
REVIEW WHEN THE PROSECUTOR PURPOSELY ELICITED
INADMISSIBLE PRIOR BAD ACT EVIDENCE FROM THE
COOPERATING WITNESS?
WHETHER TRIAL COUNSEL WAS INEFFECTIVE WHEN HE
FAILED TO INFORM APPELLANT THAT THE
COMMONWEALTH EXTENDED A PLEA OFFER THAT
EXPIRED AT THE COMMENCEMENT OF HIS JURY TRIAL?
(Appellant’s Brief at 4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959
A.2d 319 (2008). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,
593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction
court’s credibility determination, it is binding on the appellate court.
Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).
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After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Diane E.
Gibbons, we conclude Appellant’s issues merit no relief. The PCRA court
opinion comprehensively discusses and properly disposes of the questions
presented. (See PCRA Court Opinion, filed November 12, 2014, at 4-7)
(finding: (1) on direct appeal, Superior Court deemed waived Appellant’s
claim of prosecutorial misconduct based on trial counsel’s failure to request
mistrial; nevertheless, Appellant’s claim of prosecutorial misconduct lacks
merit where trial counsel did not intend to elicit from witness inadmissible
prior bad act evidence, but merely sought to establish that witness and
Appellant had sufficient contact in past such that witness could identify
Appellant’s voice during various telephone calls; moreover, following
witness’ “prior bad act” statement, court instructed witness not to mention
any prior bad act by Appellant without court permission, and witness
followed court’s instruction;3 given overwhelming evidence at trial, witness’
isolated and ambiguous reference to Appellant’s prior bad act did not have
unavoidable effect of preventing jury from weighing evidence in neutral
manner and rendering true verdict;4 trial counsel is not ineffective for failing
____________________________________________
3
The court gave the witness this instruction outside the jury’s presence.
4
At the PCRA hearing on April 12, 2013, trial counsel testified he did not
request a mistrial because he did not believe the prosecutor’s line of
questioning to the witness constituted “prosecutorial misconduct” to warrant
(Footnote Continued Next Page)
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to raise meritless claim, and Appellant failed to demonstrate prejudice; thus,
Appellant’s ineffectiveness claim fails; (2) record belies Appellant’s claim
that trial counsel failed to communicate plea offer; trial counsel testified at
PCRA hearing that he pursued plea deal, communicated to Appellant
Commonwealth’s plea offer of 1-2 year state sentence, and Appellant
rejected plea offer;5 prosecutor corroborated trial counsel’s testimony;
prosecutor also testified that on morning of trial, trial counsel approached
prosecutor asking once more for county sentence (as Appellant would not
agree to state sentence), which prosecutor rejected; thus, Appellant’s
ineffectiveness claim lacks merit). Accordingly, we affirm on the basis of the
PCRA court’s opinion.
Order affirmed.
_______________________
(Footnote Continued)
a mistrial. Thus, Appellant also failed to establish that trial counsel lacked a
reasonable basis for his actions. See Commonwealth v. Turetsky, 925
A.2d 876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365
(2007) (stating to prevail on claim of ineffective assistance of counsel, PCRA
petitioner must demonstrate (1) underlying claim has arguable merit; (2)
counsel had no reasonable strategic basis for his action or inaction; and (3)
but for errors and omissions of counsel, there is reasonable probability that
outcome of proceedings would have been different; petitioner bears burden
of proving all three prongs of test).
5
Trial counsel specifically recalled Appellant’s “colorful” language when
rejecting the plea offer. Trial counsel testified Appellant stated something to
the effect of, “tell that mother fucker” or “tell that son of a bitch the answer
is no and I’m going to trial. I’m picking 12.” (N.T. PCRA Hearing, 9/19/13,
at 33).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2015
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IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEAL TH OF PENNSYLVANIA : No. CP-09-CR-0007545-2009
v. (2673 EDA 2014)
ANTHONY DWIGHT ANDERSON
OPINION
By Order dated August 14, 2014, this Court denied Petitioner's request for relief pursuant
1
to the Post Conviction Relief Act ("PCRA"). Petitioner now appeals.
On February 23, 2010, following a trial by jury, Petitioner was convicted of five counts
of felony Theft by Unlawful Taking' five counts of felony Receiving Stolen Property.' and two
counts of felony Criminal Conspiracy4 arising out of the theft of five motorcycles from five
separate owners in August of 2009. On that same date, Petitioner was sentenced to undergo
imprisonment for not less than twelve nor more than twenty-four months on each of the five
Theft convictions. Petitioner was sentenced to seven years probation on each of the two
Conspiracy counts. All of the sentences imposed were run consecutive to one another. No
further penalty was imposed on the remaining counts. On April 1, 2010, this Court granted the
~-~
Petitioner's Motion to Reconsider Sentence and resentenced Petitioner te::c:611.secutiviL=terms of
;:_-·-.-.~,~- %
., . ..:·... ))·ft O
nine to twenty-four months imprisonment on each of the five Theft convfotroiii All@l.er
... N
5
aspects of the sentence remained unchanged.
1J
1 42 Pa.C.S. § 9541 et seq.
218 Pa.C.S. § 392l(a); § 3903(a.l).
3 18 Pa.C.S. § 3925(a); § 3903(a.l ).
4 18 Pa.C.S. § 903.
5 On January 4, 2013, by agreement of the parties, this Court entered an order granting Petitioner's Recidivism Risk
Reduction Incentive ("RRRI") eligibility, directing Petitioner's RRRI minimum aggregate sentence to be 37.5
months incarceration.
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The evidence presented at the trial for the underlying crimes was summarized in this
Court's Opinion for purposes of direct appeal as follows:
The evidence presented at trial established that during the
late night hours of August 25th and/or the early morning hours of
August 26, 2009, there was a series of motorcycle thefts from
private residences. Of the five thefts, three occurred in Bensalem
Township, Bucks County, one occurred in Yardley, Bucks County
and one occurred in Philadelphia. The four Bucks County
residents each testified that they had parked their motorcycles
outside their respective homes on August 25th and that they awoke
the following morning to find that their motorcycles had been
stolen. Each immediately reported the theft to their local police
department. The Philadelphia resident testified that he left his
motorcycle at his residence on August 2ist. When he returned to
his residence on August 30th, he too learned that his motorcycle
had been taken and immediately reported the theft to police.
At trial, the Commonwealth presented the testimony of
William Seddon. Seddon testified that in August of 2009, he had a
telephone conversation with the Defendant during which the
Defendant told Seddon that he wanted to steal motorcycles and
wanted to know if Seddon knew of any buyers. Seddon agreed to
.buy some of the stolen motorcycles. On August 26th,
approximately one week after the initial conversation, the
Defendant informed Seddon that he had gone out the night before
and had stolen six motorcycles. Seddon, who was cooperating
with law enforcement as a result of his arrest for receiving stolen
property, notified the Detective with whom he was working that he
had information concerning stolen motorcycles. Working with law
enforcement, Seddon arranged to purchase two of the motorcycles
from the Defendant, a 2000 Kawasaki valued at $3,095 and a 2004
Honda valued at $4,555, for $800 each. The Defendant told
Seddon to pick up the two motorcycles at the residence of Albert
Wynne in Philadelphia the following day, August 281h.
On August 28th, undercover officers accompanied Seddon
to the residence of Albert Wynne where they retrieved the two
motorcycles Seddon had agreed to purchase. The motorcycles
were placed on a trailer attached to the vehicle being utilized by
Seddon and the undercover officers. While in the basement of the
Wynne residence, police observed four other motorcycles.
After leaving Wynne's residence, Seddon had another
telephone conversation with the Defendant. During that
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conversation, the Defendant asked how the motorcycles were
being transported. Upon learning that the motorcycles were in an
open trailer, the Defendant became upset and told Seddon that he
shouldn't be driving around with the motorcycles in plain view
since the motorcycles had been stolen from Bensalem. The
Defendant advised Seddon that he was going to get some tarps to
cover the motorcycles and then he would meet Seddon to receive
payment.
That same day, the undercover officers and Seddon met the
Defendant in the parking lot of the Franklin Mills Mall to pay for
the motorcycles as previously arranged. The Defendant was
arrested at that time. As promised, the Defendant had brought
tarps to cover the motorcycles. Following his arrest, the Defendant
made unsolicited statements to Trooper John McGeary to the effect
that he was "the middle man" in this operation and that he found
buyers for the motorcycles.
On that same date, police executed a search warrant at the
Wynne residence in Philadelphia and recovered four more
motorcycles. Of the six motorcycles that were recovered during
the course of the investigation, five belonged to the victims in the
instant case. Ownership of the sixth motorcycle could not be
determined. 6
On direct appeal of his conviction, Petitioner raised, inter alia, the issue of whether the
prosecuting attorney engaged in prosecutorial misconduct by eliciting prior bad acts through
witness William Seddon. In a memorandum opinion dated April 29, 2011, the Superior Court
affirmed the judgment of sentence. The Superior Court found that Petitioner waived his claim
regarding prosecutorial misconduct by failing to request a mistrial. 7 Petitioner did not file a
petition for allowance of appeal to the Pennsylvania Supreme Court.
On December 2, 2011, Petitioner filed a prose PCRA petition. On February 3, 2012,
PCRA counsel was appointed. On May 30, 2012, PCRA counsel filed an amended petition. An
evidentiary hearing was held on April 12, 2013 and on September 13, 2013. On
6
Opinion, Trial Court, 6/07/10 pp. 2-4 (footnotes omitted).
7
See Commonwealth v. Anderson, 945 EDA 2010 (Pa. Super. Ct. 2011) at p. 7.
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September 18, 2013, PCRA counsel filed a supplemental PCRA petition. On April 2, 2014, a
third evidentiary hearing was held. On August 14, 2014, this Court entered an order denying
Petitioner's PCRA petition.
To obtain PCRA relief, Petitioner must plead and prove by a preponderance of the
evidence that his conviction resulted from one of the enumerated grounds for relief set forth in
42 Pa.C.S. § 9543(a)(2). One of the enumerated grounds for relief is ineffective assistance of
counsel. 8 Petitioner raised three claims of ineffective assistance of counsel.
Generally, counsel is presumed to have provided constitutionally adequate representation.
Commonwealth v. Smith, 609 Pa. 605, 623, 17 A.3d 873, 883 (2011). In order to establish
ineffective assistance of counsel which would warrant relief, a petitioner is required to plead and
to prove (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an
objective reasonable basis; and (3) actual prejudice befell the petitioner from counsel's act or
omission. Id. To demonstrate prejudice, a petitioner must show that there is a reasonable
probability that, but for counsel's error or omission, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668 (1984). Additionally, defense counsel is
afforded broad discretion to determine tactics and strategy. Commonwealth v. Fowler, 670 A.2d
153 (Pa.Super.1996).
Petitioner contends that trial counsel was ineffective for failure to preserve a claim of
prosecutorial misconduct. This Court previously found that the underlying issue to be without
merit. This Court addressed the issue as follows:
In his final allegation of error, the Defendant argues that
the prosecutor engaged in misconduct by eliciting evidence
concerning prior bad acts during the testimony of William Seddon.
As previously stated, Seddon testified that he had called the
Defendant to ask him if he would work with him on a construction
8
42 Pa.C.S. § 9543(a)(2)(ii).
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job. During that conversation, the Defendant told Seddon that he
wanted to steal motorcycles before the end of the summer. The
Defendant asked Seddon if he knew of any potential buyers.
Following this testimony, the following exchange occurred:
Q. At that time had you worked with him in the
past?
A. Yes, sir.
Q. When you say worked with him, what had you
done?
A. I worked on motorcycles and sold some
motorcycles for him.
Q. You said you sold motorcycles?
A. Yes, sir.
Q. Did you - - when you worked on these
motorcycles, did you do anything specifically?
A. Yes. Switch frames, ignitions, things of that
sort, try to cover up that they were stolen.
Counsel for the Defendant then objected to the admission
of any testimony being elicited that the Defendant in sales of stolen
motorcycles in past. The assistant district attorney advised this
Court and counsel that he did not intend to elicit evidence
concerning prior bad acts but was merely attempting to establish
that the witness and the Defendant had sufficient contact in the
past so as to allow the witness to identify the Defendant's voice
during various telephone conversations. Based upon that
representation, the witness was instructed not to make any
reference to any prior bad act without prior court permission. No
further references were, in fact, made.
This Court finds that this line of questioning was not
undertaken in an effort to elicit an inadmissible response from
Seddon and, therefore, concludes that the assistant district attorney
did not engage in prosecutorial misconduct. See Commonwealth
v. Johnson, 611 A.2d 1315 (Pa.Super.1992). Moreover, "a
defendant is not entitled to relief for a claim of prosecutorial
misconduct unless the unavoidable effect of the prosecutor's
comments or actions is to prejudice the jury so that a true verdict
cannot be rendered because the existence of bias and hostility
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makes it impossible to weigh the evidence in a neutral manner."
Commonwealth v. Hill, 542 Pa. 291, 666 A.2d 642 (1995)
(quotations omitted). Given the overwhelming evidence
introduced at trial, this isolated and ambiguous reference did not
have the "unavoidable effect" of preventing the jury from
weighing the evidence in a neutral manner and rendering a true
verdict.9
Trial counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth
v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995). Moreover, for the reasons set forth above,
Petitioner has failed to establish prejudice as required.
Petitioner also asserts that trial counsel was ineffective for failure to pursue plea
negotiations and for failure to communicate to him any plea offer made by the Commonwealth.
Petitioner's claim is contradicted by the record. Trial counsel testified that prior to trial he had
been in discussions with the prosecutor attorney in reference to a potential plea agreement, that
the final offer from the Commonwealth was a state sentence of not less than one to not more than
two years, that he communicated the offer to Petitioner, that Petitioner rejected this offer, and
that he contacted the prosecuting attorney and advised him that Petitioner had rejected the
offer.'? Trial counsel's testimony was corroborated by the prosecuting attorney who testified
that he had engaged in plea negotiations with trial counsel, that he offered a state sentence of not
less than one to not more than two years, and that trial counsel called him while he was on
vacation to advise him that Petitioner was not accepting the plea offer.11 The prosecuting
attorney testified that on the morning of trial, trial counsel approached him ask for a county
sentence "one more time." The prosecuting attorney rejected that proposal.12 Based on this
testimony, this Court concluded that trial counsel did, in fact, pursue plea negotiations, that he
9
Opinion, Trial Court, 6/07/10 pp. 9-10 (footnotes omitted).
1°N.T. 04/12/2013 pp. 10-12, 21-22; N.T. 09/19/2013 pp. 20, 23-32, 36.
LIN.T. 04/02/2014 pp. 19-21.
12Id.;
N.T. 04/02/2014 pp. 22, 25-26.
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did, in fact, communicate the plea offer to Petitioner and that Petitioner did, in fact, reject that
offer. Petitioner's claim of ineffective assistance of counsel for failure to do so, therefore, lacks
merit.
For the reasons set forth above, this Court denied Petitioner's request for PCRA relief.
BY THE COURT:
Date
[)Jruq - [ ~
DIANE E. GIBBONS, J.
1-UMt,.J
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Maureen Spang, Deputy District Attorney
Bucks County District Attorney's Office
5 5 East Court Street
Doylestown PA 18901
Elissa Heinrichs, Esquire
Cevallos & Wong, LLP
40 Court Street
Newtown PA 18940