Com. v. Ingram, M.

J-S32021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MICHAEL DEVON INGRAM,

Appellant No. 1681 WDA 2014

Appeal from the PCRA Order of August 7, 2014
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000376-2009

BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.: FILED JULY 24, 2015

Appellant, Michael Devon Ingram, appeals from the order entered on

August 7, 2014, dismissing his first petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel filed a

petition to withdraw from further representation pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Upon review, we

grant counsel's petition to withdraw and affirm the dismissal of Appellant's

PCRA petition.

We previously summarized the facts of this case as follows:

At the conclusion of trial on April 13, 2010, a jury found
Appellant guilty of criminal conspiracy to distribute a
controlled substance (cocaine), distribution of a controlled
substance (cocaine), criminal attempt to deliver a non-
controlled substance, possession of drug paraphernalia, and
driving while operating privileges are suspended or revoked.
J-S32021-15

Thereafter, on June 16, 2010, the trial court sentenced
Appellant to an aggregate term of 69-138 months’
incarceration.

The evidence introduced at trial established the following
facts. In May 2009, several undercover narcotics officers
engaged in a surveillance detail observed Appellant enter a
residence on Liberty Street in Franklin, PA. A confidential
informant followed Appellant into the residence. Once
inside, the informant gave $175.00 in pre-marked currency
to Rebecca [Chludzinski], the occupant of the Liberty Street
residence, who in turn handed the money to Appellant who
was standing in the doorway of a separate room. The
informant testified that, although Appellant was standing in
a different room, the informant was still able to observe
Appellant hand a baggie of crack cocaine to [Chludzinski].
[Chludzinski] also told the informant that he should hurry
back if he wanted more cocaine because Appellant intended
to leave the area shortly. After exiting the Liberty Street
residence, the informant walked directly to law enforcement
personnel engaged in the surveillance detail and gave them
the baggie of crack cocaine. Subsequently, Appellant left
the residence and departed from the scene in a green, 2-
door Buick.

Based upon their observations and information obtained
from the confidential informant, the investigating officers
obtained and executed a search warrant at the Liberty
Street residence. While executing the warrant, the officers
interviewed [Chludzinski] who stated that the crack cocaine
sold at her residence came from Appellant and that
Appellant planned to return to the residence in the green
Buick with at least two baggies of crack cocaine.

The following day, pursuant to an anticipatory vehicle
warrant obtained in reliance upon the foregoing facts,
investigating officers detained and performed a search of
Appellant and his automobile. As a result of this search,
officers recovered from Appellant’s left front pants pocket
the pre-marked currency used by the confidential informant
to make the controlled purchase of crack cocaine. Officers
also recovered a counterfeit substance packaged as crack
cocaine.

-2-
J-S32021-15

On August 6, 2009, Appellant moved to suppress the
evidence obtained from the search of his vehicle. The trial
court denied Appellant’s suppression motion on January 26,
2010. Based upon the evidence presented at trial, a jury
found Appellant guilty on April 13, 2010. At the sentencing
hearing held on June 16, 2010, Appellant made an oral
motion for extraordinary relief based on the contention that
one of the Commonwealth’s witnesses wished to recant her
testimony. After concluding that Appellant’s claim did not
warrant extraordinary relief, the trial court deferred
consideration of Appellant’s contention and proceeded to
impose the sentence described above. Appellant filed a
post-sentence motion on February 4, 2011. That motion
was denied by operation of law on June 4, 2011.

Commonwealth v. Ingram, 50 A.3d 231 (Pa. Super. 2011) (unpublished

memorandum) (footnotes to criminal statutes omitted) at 2-4.

A timely appeal resulted. On May 1, 2012, this Court affirmed

Appellant’s judgment of sentence in an unpublished memorandum wherein

we adopted the trial court’s opinion. See id. On August 2, 2012, Appellant

filed a pro se PCRA petition. On August 7, 2012, the PCRA court appointed

counsel to represent Appellant. On March 18, 2013, counsel for Appellant

filed an amended PCRA petition. The PCRA court held a hearing on the

amended PCRA petition on April 11, 2014. By order and opinion dated

August 7, 2014, the PCRA court denied relief. This timely appeal followed.1

____________________________________________

1
Appellant filed a notice of appeal on September 5, 2014. On October 7,
2014, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied.
The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on December
17, 2014.

-3-
J-S32021-15

On appeal to this Court, PCRA counsel determined that there are no

“non-frivolous” issues for appellate review. Because of this determination,

counsel notified Appellant of his intent to withdraw from representation and

filed, in this Court, both a motion to withdraw as counsel and an

accompanying “no merit” letter pursuant to Turner/Finley. See

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012). Appellant

filed a pro se request for an extension of time to respond to counsel’s “no

merit” letter. By order entered on February 6, 2015, this Court granted an

extension, giving Appellant until January 29, 2015 to file a response. To

date, Appellant has not responded.

Counsel's Turner/Finley letter presents the following claims for our

consideration:

1. The offense of possession with intent to deliver should be
made concurrent with the possession offense, since the
lesser of the offenses is included in the greater offense[],
and should not have been sentenced consecutively.

2. [Appellant] believes he was convicted of [possessing] a
non-controlled substance but sentenced for [possessing]
a controlled substance.

3. The trial court failed to hold a hearing or to address the
assertion that one of the Commonwealth’s witnesses,
Rebecca Chludzinski, had recanted her testimony and
been coerced into providing the testimony at trial.

4. Trial and appellate counsel were ineffective for failing to
appeal or to [file] post-sentence motions when the
Commonwealth’s witness stated that she wanted to
recant her testimony and had been forced into testifying
falsely at trial.

-4-
J-S32021-15

5. Trial counsel failed to conduct a proper or adequate pre-
trial investigation, by failing to interview witnesses,
finding out about the alleged confidential informant who
was never involved in prior criminal cases, and therefore
was not a reliable confidential informant as alleged by
the police.

6. The District Attorney was involved in previous cases of
similar prosecutorial misconduct.

Appellant's Brief at 2-6 (superfluous capitalization omitted).2

Prior to reviewing the merits of this appeal, we first decide whether

counsel fulfilled the procedural requirements for withdrawing as counsel.

Doty, 48 A.3d at 454. As we have explained:

Counsel petitioning to withdraw from PCRA representation
must proceed ... under Turner, supra and Finley, supra
and must review the case zealously. Turner/Finley
counsel must then submit a “no-merit” letter to the trial
court, or brief on appeal to this Court, detailing the nature
and extent of counsel's diligent review of the case, listing
the issues which petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the
“no merit” letter/brief; (2) a copy of counsel's petition to
withdraw; and (3) a statement advising petitioner of the
right to proceed pro se or by new counsel.

* * *

____________________________________________

2
Counsel has not paginated the Turner/Finley brief. We have provided
page numbers for ease of reference.

-5-
J-S32021-15

Where counsel submits a petition and no-merit letter that ...
satisfy the technical demands of Turner/Finley, the court—
trial court or this Court—must then conduct its own review
of the merits of the case. If the court agrees with counsel
that the claims are without merit, the court will permit
counsel to withdraw and deny relief.

Id.

Here, counsel satisfied all of the above procedural requirements. Thus,

having concluded that counsel's petition to withdraw is Turner/Finley

compliant, we now undertake our own review of the case to consider

whether the PCRA court erred in dismissing Appellant's petition.

In reviewing the denial of PCRA relief,

we examine whether the PCRA court's determination is
supported by the record and free of legal error. To be
entitled to PCRA relief, an appellant must establish, by a
preponderance of the evidence, that his conviction or
sentence resulted from one or more of the enumerated
errors in 42 Pa.C.S.A. § 9543(a)(2); his claims have not
been previously litigated or waived, id. § 9543(a)(3); and
the failure to litigate the issue prior to or during trial or on
direct appeal could not have been the result of any rational,
strategic, or tactical decision by counsel. Id. § 9543(a)(4).
An issue is previously litigated if the highest appellate court
in which [the appellant] could have had review as a matter
of right has ruled on the merits of the issue. Id.
§ 9544(a)(2). An issue is waived if [A]ppellant could have
raised it but failed to do so before trial, at trial, on appeal or
in a prior state postconviction proceeding. Id. § 9544(b).

In order to obtain relief on a claim of ineffectiveness of
counsel, a PCRA petitioner must satisfy the performance
and prejudice test set forth in Strickland v. Washington,
466 U.S. 668 (1984). In Pennsylvania, we have applied the
Strickland test by requiring that a petitioner establish that
(1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel's action or failure to
act; and (3) the petitioner suffered prejudice as a result of

-6-
J-S32021-15

counsel's error, with prejudice measured by whether there
is a reasonable probability that the result of the proceeding
would have been different. In other words, prejudice is
assessed in terms of whether the petitioner has shown that
the demonstrated ineffectiveness sufficiently undermines
confidence in the verdict. Counsel is presumed to have
rendered effective assistance, and, if a claim fails under any
required element of the Strickland test, the court may
dismiss the claim on that basis.

Commonwealth v. Montalvo, 2015 WL 1888580, at *7-8 (Pa. 2015)

(quotations, ellipsis and some citations omitted).

In his first issue presented, Appellant contends that his sentences

should have run concurrently, because his convictions arose from the same

events. Appellant’s Brief at 3. This claim implicates the discretionary

aspects of sentencing. See Commonwealth v. Treadway, 104 A.3d 597,

599 (Pa. Super. 2014) (“Generally, Pennsylvania law affords the sentencing

court discretion to impose its sentence concurrently or consecutively to other

sentences being imposed at the same time or to sentences already

imposed.”). Upon review, however, Appellant did not couch this claim in

terms of ineffective assistance of counsel in his PCRA petition and it is

waived. See Commonwealth v. Watson, 835 A.2d 786, 801 (Pa. Super.

2003) (holding a claim regarding the discretionary aspects of sentence, must

be raised in the context of an ineffectiveness claim to be cognizable under

the PCRA). Moreover, upon review of the record, Appellant argued that his

sentence was excessive on direct appeal. Thus, any challenge to the

consecutive nature of his sentences was previously litigated or otherwise

waived for this additional reason.

-7-
J-S32021-15

Alternatively, Appellant claims trial counsel was ineffective for failing

to request the merger of the sentences. Id. Unlike a challenge to the

discretionary aspects of sentencing, a claim that merger of sentences was

applicable implicates the legality of sentence and cannot be waived. See

Commonwealth v. Williams, 920 A.2d 887 (Pa. Super. 2007) (claim that

sentences should have merged raises a non-waivable challenge to the

legality of the sentences). Here there is no merit to the claim that trial

counsel was ineffective for failing to request merger, because merger was

not applicable. We previously determined:

Crimes do not merge unless they arise from a single
criminal act and all the statutory elements of one offense
are included in the elements of the other. Commonwealth
v. Williams, 920 A.2d 887, 889 (Pa. Super. 2007); 42
Pa.C.S.A. § 9765. The crime of possessing a controlled
substance does not involve, as a statutory element, the
possession of paraphernalia. See 35 P.S. § 780-
113(a)(16). Similarly, possessing paraphernalia does not
have as a material element, the possession of a controlled
substance. See 35 P.S. § 780-113(a)(32). Lastly, the crime
of delivering a controlled substance requires, quite
obviously, the delivery thereof to another person. 35 P.S.
§ 780-113(a)(30). The offenses of possessing a controlled
substance and possessing paraphernalia do not require
delivery. Thus, the statutory elements of each of these
offenses are not contained in the others. The sentences do
not merge. Appellant's claim fails.

Commonwealth v. Pitner, 928 A.2d 1104, 1111 (Pa. Super. 2007).

Moreover, “it is well established that the completed crime and the conspiracy

to complete the crime are separate and distinct offenses and do not merge

for sentencing purposes.” Commonwealth v. Causey, 833 A.2d 165, 177

-8-
J-S32021-15

(Pa. Super. 2003) (citation omitted). Here, none of Appellant’s convictions

should have merged; therefore, counsel cannot be ineffective for failing to

raise a meritless challenge. Hence, Appellant’s first issue fails.

Next, Appellant claims “that he was convicted by the jury of conspiracy

and delivery of a non-controlled substance in counts one and two, and that

he was sentenced [for] conspiracy and delivery of a controlled substance

on those counts.” Appellant’s Brief at 4 (emphasis supplied).

On this issue, the PCRA court determined:

[] Appellant, in fact, was convicted and sentenced on
[convictions for possessing] both a non-controlled and
controlled substance. A review of [the trial court’s]
sentencing order reveals that on June 16, 2010, Appellant
was sentenced as follows: on count 1, criminal conspiracy
to commit distribution of sale of a controlled
substance/cocaine, to a term of imprisonment of forty-five
(45) months to ninety (90) months; count 2, distribute a
controlled substance/cocaine, to a term of forty-five (45)
months to ninety (90) months; [] and count 3, criminal
attempt to deliver a non-controlled substance to a term of
imprisonment of twenty-four (24) months to forty-eight
(48) months. Count 4 and 5 dealt with possession of
paraphernalia and driving while operating privilege is
suspended, respectively.

PCRA Court Opinion, 12/17/2014, at 6 (some capitalization omitted).3

Upon review of the certified record, we conclude that Appellant was

convicted and sentenced for conspiracy, delivery of a controlled substance,

attempt to deliver a non-controlled substance, and possession of drug
____________________________________________

3
The PCRA court did not paginate its opinion. Thus, we have provided page
numbers for ease of reference.

-9-
J-S32021-15

paraphernalia. Appellant’s confusion stems from the fact that the

Commonwealth filed a bill of criminal information and, subsequently,

amended it three times before trial. Prior to trial, the trial court held two

hearings for additional discovery, wherein Appellant requested laboratory

tests conducted on the substance that police obtained in the controlled

narcotics purchase. At trial, the Commonwealth presented the testimony of

Ted Williams, a forensic scientist, who tested all of the recovered

substances. The substance recovered from the controlled narcotics buy

tested positive as crack cocaine. N.T., 4/13/2010, at 12, 16-17. The

Commonwealth requested that the laboratory results be published to the

jury because, “the third count [against Appellant] was a substantially similar

substance that [Appellant] was trying to pass [] off as crack cocaine.” Id. at

17. Defense counsel did not object. Id. at 18. Thereafter, Williams

testified that “no controlled substances [were] detected” from the

substances recovered from the trunk of the vehicle Appellant was driving,

despite the fact that presumptive tests conducted by the police department

indicated the presence of cocaine. Id. at 20. Prior to deliberation, the trial

court noted there were four charges for the jury’s consideration –

conspiracy, delivery of cocaine, criminal attempt to deliver a non-controlled

substance, and possession of drug paraphernalia. N.T., 4/13/2010, at 191.

The trial court defined the elements of those crimes to the jury. Id. at 192-

205. The verdict slip reflects that the jury found Appellant guilty of

possession of delivery of a controlled substance and criminal attempt to

- 10 -
J-S32021-15

deliver a non-controlled substance, as well as conspiracy and possession of

drug paraphernalia. Verdict, 4/13/2010, at 1.

At the sentencing hearing prior to the imposition of the sentence, the

Commonwealth told the trial court that amendments to the bill of criminal

information were necessary because the presumptive narcotics tests and

confirmatory tests were not compatible. N.T., 6/16/2010, at 28. The

District Attorney noted that it amended the bill of criminal information and

the jury was charged accordingly. Id. at 29. The trial court compounded

the confusion regarding the controlled versus non-controlled substances

charges and convictions, however, by entering an order of court on April 13,

2010. In that order, the trial court directed the Pennsylvania Board of

Probation and Parole to complete a pre-sentence investigation in anticipation

of sentencing, but erroneously stated that Appellant was “guilty [of] [c]ount

2, distribute a non-controlled substance.” Trial Court Order, 4/13/2010, at

1 (emphasis added). The Commonwealth brought the error to the trial

court’s attention prior to sentencing and the trial court agreed that its April

order was erroneous. N.T., 6/16/2010, at 29-32. Defense counsel also

agreed. Id. at 31. Before imposing sentence, the trial court sent the pre-

sentence investigation report back to the probation department for a

recalculation of the sentencing guidelines as the result of the error. Id. at

31-33. Appellant was sentenced thereafter. Thus, Appellant was properly

charged and the jury found him guilty of both delivery of cocaine and

attempt to deliver a non-controlled substance, as well as conspiracy and

- 11 -
J-S32021-15

possession of drug paraphernalia. Hence, there is no merit to Appellant’s

second issue.

Appellant’s third and fourth issues presented are inter-related and we

will examine them together. At the hearing prior to sentencing, the trial

court noted that it received a letter, dated May 22, 2010, from trial witness

Rebecca Chludzinski claiming “she was coerced into giving the testimony

that she gave at the time of trial, and that the testimony was not true.”

N.T., 6/16/2010, at 13. Currently, Appellant argues that the trial court

erred by not holding a hearing on the matter when it was raised at

sentencing. Appellant’s Brief at 5. Appellant also claims that trial and

appellate counsel were ineffective for failing to raise the matter in a post-

sentence motion. Id.

On these issues, the PCRA court determined:

At [Appellant’s] PCRA hearing, [] Jeri Bolton, Esq[.], who
worked for the Public Defender’s Office and was counsel for
[Appellant] at trial, testified that [] the letter dated May 22,
2010, actually was recanted by Ms. Chludzinski. Moreover,
Attorney Bolton testified she informed then-Assistant
District Attorney (“ADA”) James Carbone she was told by
Cody Kostra (“Kostra”), a jailhouse informant, that Ms.
Chludzinski told Kostra she recanted. Attorney Bolton
testified that she did not know of Ms. Chludzinski’s
reputation to be a snitch or tendency to say anything.
Importantly, however, Attorney Bolton testified that the
evidence [at trial] was so overwhelmingly against
[Appellant] that, even discounting Ms. Chludzinski’s
testimony in its entirety, the verdict would have been the
same. For example, [Appellant] was found with the drugs
in his car, along with the marked bills which were used in
the controlled buy. There really was no question but that
[Appellant] was guilty.

- 12 -
J-S32021-15

PCRA Court Opinion, 12/17/2014, at 5.

Upon review, we agree. Appellant failed to show he was prejudiced by

Chludzinski’s trial testimony. In reviewing the trial transcripts, Chludzinski

was the intermediary between the confidential informant and Appellant; she

testified that she found customers for Appellant. N.T., 4/13/2010, at 39-42.

However, the confidential informant testified at trial as an eyewitness to the

drug transaction that ultimately led to Appellant’s arrest and charges. The

informant testified that he gave Chludzinski money, she gave the money to

Appellant, Appellant handed drugs to Chludzinski, and Chludzinski handed

the drugs to the informant. N.T., 4/12/2010, at 161. Because the

informant personally witnessed the drug transaction, Chludzinski’s testimony

in this regard was superfluous. Officer Kirt R. Gindhart testified that he

executed a search warrant for the vehicle Appellant was driving and found,

what police initially believed to be, crack cocaine hidden in a shoe inside the

trunk. Id. at 196-204. In a search incident to arrest, Officer Fred Meyers

testified that he recovered, from Appellant’s person, the marked currency

used by the confidential informant in the controlled narcotics purchase. Id.

at 96-107. Based on the foregoing, there was sufficient evidence, without

Chludzinski’s testimony, to support Appellant’s convictions. Appellant has not

shown there was a reasonable probability that the result of the proceeding

would have been different or shown that counsel’s ineffectiveness sufficiently

- 13 -
J-S32021-15

undermined confidence in the verdict. Hence, Appellant’s third and fourth

issues fail.

Next, Appellant claims “trial counsel was ineffective in that she failed

to conduct a proper or adequate pretrial investigation by failing to interview

witnesses and failing to investigate the confidential informant.” Appellant’s

Brief at 7. More specifically, Appellant avers that trial counsel “failed to talk

to Cody Kostra and Wesley Cain[,]” as potential trial witnesses. Id.

Appellant’s claim fails for several reasons. First, the transcript of

Appellant’s trial reflects that trial counsel interviewed Cody Kostra and called

him as a witness at trial. See N.T., 4/13/2010, at 112-123. Thus, there is

no merit to this portion of Appellant’s claim. Next, trial counsel testified at

the PCRA hearing that Wesley Cain’s testimony would have been cumulative

of Kostra’s and counsel was concerned that Cain’s history of domestic

problems, including a bench warrant at the time of trial, made him a poor

witness. N.T., 4/11/2014, at 16-18. Thus, trial counsel had a reasonable

basis not to call Cain as a trial witness. Finally, with regard to Appellant’s

contention that counsel was ineffective for failing to investigate the

confidential informant, on direct appeal we determined that “the reliability of

the confidential informant was established by prior accurate information

furnished to the police and through his or her involvement in the criminal

activity under investigation in the present case.” Commonwealth v.

Ingram, 50 A.3d 231 (Pa. Super. 2011) (unpublished memorandum) at 5

- 14 -
J-S32021-15

n.7. As such, there is no merit to Appellant’s contention that counsel was

ineffective for failing to investigate independently the confidential informant

before trial. Accordingly, Appellant’s fifth issue fails.

Finally, Appellant contends the assistant district attorney in this case

“has been found to have engaged in prosecutorial misconduct in other

cases.” Appellant’s Brief at 8. Appellant, however, “cannot demonstrate

prejudice in the instant case through an alleged violation in a different one.”

Commonwealth v. Simpson, 66 A.3d 253, 267 n.19 (Pa. 2013). This

claim fails.

Order affirmed. Counsel’s petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/24/2015

- 15 -