J-S62027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEPHEN MAURICE BARRY-GIBBONS
Appellant No. 543 WDA 2015
Appeal from the PCRA Order March 10, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000405-2007
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 19, 2015
Appellant Stephen Maurice Barry-Gibbons appeals from the order of
the Erie County Court of Common Pleas denying his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We
affirm.
This Court previously set forth the relevant facts as follows:
On January 3, 2007, Lieutenant Michael Nolan of the Erie
Police Department applied for and was granted a search
warrant for Appellant’s residence at 1015 East 5th Street
in Erie. Lt. Nolan’s affidavit of probable cause relied
heavily on information provided by a confidential
informant, who[m] he deemed reliable based on the fact
that the confidential informant previously provided
information leading to fifteen felony drug arrests and
fourteen convictions. Within the two weeks prior to the
issuance of the search warrant, the confidential informant
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*
Retired Senior Judge assigned to the Superior Court.
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made a controlled buy from Appellant at a location other
than the residence on East 5th Street. Thereafter, the
confidential informant informed Lt. Nolan that Appellant
was now dealing drugs out of his current residence at 1015
East 5th Street. The confidential informant also told Lt.
Nolan that within the past forty-eight hours, he had been
in Appellant’s East 5th Street residence and observed
Appellant in possession of a baggie of crack cocaine and
[a] small handgun. Lt. Nolan had the confidential
informant conduct a controlled buy of crack cocaine from
Appellant within twenty-four hours prior to the issuance of
the search warrant. During the controlled buy, the
confidential informant observed additional amounts of
crack cocaine inside Appellant’s residence. Based on the
above information, Lt. Nolan obtained a search warrant for
Appellant’s residence as well as his person.
Prior to executing the search warrant, several other
officers set up surveillance of Appellant’s residence on East
5th Street at around 8:00 a.m. Lt. Nolan joined the
surveillance team at approximately 10:00 a.m. and
remained there until approximately 12:30 p.m. During
that time, Lt. Nolan did not observe Appellant entering the
apartment, though he did see Appellant exit the
apartment. Lt. Nolan testified that he did not execute the
search warrant during that time for safety reasons.
Specifically, Lt. Nolan believed Appellant was also under
investigation for a drug-related homicide by a different
police department.
Accordingly, Lt. Nolan waited for Appellant to exit the
residence to execute the search warrant. Thereafter,
police officers stopped the vehicle in which Appellant was a
passenger and conducted a search of his person, finding a
small baggie of crack-cocaine and a digital scale covered in
crack-cocaine residue. A search of Appellant’s residence
led to the discovery, in a bedroom, of an estimate for auto
work, as well as a lease listing Appellant as a tenant. In
that same bedroom, police discovered various drugs as
well as a loaded firearm.
Prior to trial, Appellant filed a motion to suppress the
evidence discovered on his person and in the residence. In
his motion, Appellant argued that the search warrant was
not supported by probable cause, and further that the
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police exceeded the scope of the search warrant by
stopping the vehicle in order to search his person. The
trial court denied the motion to suppress. Following a
bench trial, Appellant was found guilty of three counts of
possession of a controlled substance, three counts of
possession with intent to deliver, possession of drug
paraphernalia, and two counts of criminal conspiracy. On
January 11, 2010, Appellant was sentenced to an
aggregate term of four to fifteen years’ incarceration.
Commonwealth v. Barry- Gibbons, 173 WDA 2010, at *2-4 (Pa. Super.
12/21/2010) (internal citations omitted). This Court affirmed Appellant’s
judgment of sentence on December 21, 2010.
Appellant filed a PCRA petition seeking reinstatement of his right to
appeal to the Supreme Court of Pennsylvania nunc pro tunc, which the PCRA
court granted. Appellant filed a petition for allowance of appeal, which the
Supreme Court of Pennsylvania denied on March 14, 2013.
From April 11, 2013 through July 15, 2013, Appellant sent pro se
filings to the trial court, including a motion for extraordinary relief, a writ of
habeas corpus, and a “motion for Post Conviction Relief Act Discovery Rule
902(e)(1), Pa.R.Crim.Proc.,” which were sent to his attorney.1 On June 3,
2014, Appellant filed a motion entitled “request for a Grazier2 hearing and
in accordance with Faretta v. California.”3 The PCRA court appointed
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1
The trial court states Appellant also filed a motion for extraordinary relief
on April 11, 2013. However, a copy of this document is not contained in the
certified record, and the docket does not reflect an April 11, 2013 filing.
2
Commonwealth v. Grazier, 713 A.2d 81 (Pa.1998).
3
422 U.S. 806, 95 S.Ct. 2525 (2012).
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counsel. On October 10, 2014, counsel filed a supplemental PCRA petition.
On December 22, 2014, the PCRA court held an evidentiary hearing. On
March 10, 2015, the court denied the PCRA petition.
Appellant filed a timely notice of appeal. On April 22, 2015, Appellant
filed a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). On April 23, 2015, the
trial court issued its Rule 1925(a) opinion incorporating its March 10, 2015
opinion and final order.
Appellant raises the following issue on appeal:
I. Did the [trial court] commit an abuse of discretion and
reversible error by failing to grant [Appellant] a new trial
due to ineffective assistance of trial counsel?
Appellant’s Brief at 1.
Our 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) (citing
Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).
For ineffective assistance of counsel claims, the petitioner must
establish: “(1) his underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner suffered
actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311
(Pa.2014) (quoting Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.2010)).
“[C]ounsel is presumed to be effective and the burden of demonstrating
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ineffectiveness rests on appellant.” Ousley, 21 A.3d at 1244 (quoting
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010)). “The
failure to prove any one of the three [ineffectiveness] prongs results in the
failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279). “To
demonstrate prejudice, the petitioner must show that ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different.’” Spotz, 84 A.3d at 312 (quoting
Commonwealth v. King, 57 A.3d 607, 613 (Pa.2012)). “[A] reasonable
probability is a probability that is sufficient to undermine confidence in the
outcome of the proceeding.” Id. (quoting Commonwealth v. Ali, 10 A.3d
282, 291 (Pa.2014)).
Appellant first maintains pre-trial counsel4 was ineffective for failing to
present his co-defendant Javon Franklin as a witness at the pre-trial
suppression hearing. Appellant’s Brief at 4.
To establish an ineffective assistance of counsel claim for failure to call
a witness, the petitioner must prove: “(1) the witness existed; (2) the
witness was available to testify for the defense; (3) counsel knew of, or
should have known of, the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant a fair trial.”
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4
Appellant was represented by different counsel at the pre-trial and trial
phases of his prosecution.
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Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa.2009) (quoting
Commonwealth v. Washington, 927 A.2d 586, 599 (Pa.2007)).
At the evidentiary hearing, Appellant and Stephanie Barry testified that
they asked Appellant’s counsel to subpoena Franklin for the pre-trial
hearing, and counsel agreed to do so. N.T., 12/22/2014, at 5-7, 12-14.
Appellant, Barry, and Franklin stated that Franklin would have testified at
the suppression hearing that the drugs found during the search were his
drugs, not Appellant’s. Id. 7-8, 13-14, 27. Appellant’s counsel, however,
stated that he did not inform anyone that he would call Franklin and stated
Franklin’s testimony was irrelevant for pre-trial purposes. Id. at 42-43.
The trial court credited Appellant’s counsel, including his testimony
that he did not inform Appellant that he would subpoena Franklin. Further,
the trial court found counsel had a reasonable basis for not calling Franklin,
i.e.,
because his proffered testimony had no relevancy at the
suppression hearing on [Appellant’s] challenge to the
search warrant (i.e., four corners of the affidavit) or the
traffic stop. Rather, Franklin’s testimony involved
[Appellant’s] defense of lack of culpability, which was a
trial matter and not cognizable in a suppression hearing.
Opinion and Final Order, 3/10/2015, at 5. The trial court further found
Appellant was not prejudiced because Franklin testified at trial. The trial
court did not err in its analysis, and Appellant’s counsel ineffectiveness claim
fails.
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Appellant next claims trial counsel was ineffective for failing to
interview Appellant until the day before trial, failing to interview trial
witnesses prior to trial, failing to request that the trial judge recuse himself,
and failing to investigate or challenge a discrepancy in the weight of the
drugs at issue. Appellant’s Brief at 5.
Appellant maintains the PCRA court erred in accepting trial counsel’s
testimony that he spoke with Appellant twice before trial and that he spoke
with trial witnesses, Barry and Franklin, prior to trial. He claims counsel’s
testimony was contradicted by the testimony of Appellant, Barry and
Franklin. Appellant’s Brief at 5. The PCRA court found:
At the evidentiary hearing, Attorney Williams credibly
testified that he spoke with [Appellant] on at least two
prior occasions before trial. Furthermore, Attorney
Williams stated that he spoke with both Stephanie Barry
and Javon Franklin several times before trial, and both
witnesses testified consistently with what they told him
during their pre-trial discussions. [Appellant’s] claims that
Attorney Williams failed to meet with him or speak with his
witnesses are meritless.
Opinion and Final Order at 6. We are bound by the PCRA court’s credibility
determinations, which are supported by the record. See, e.g., Spotz, 18
A.3d at 259. The PCRA court did not err in finding counsel was not
ineffective.
Appellant next maintains trial counsel was ineffective for failing to seek
recusal of the trial judge, who presided over the suppression hearing and the
bench trial. Appellant’s Brief at 5-6. The Supreme Court of Pennsylvania
has found a trial judge must recuse only if a defendant demonstrates
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“substantial doubt as to the judge’s ability to preside impartially.”
Commonwealth v. Reyes, 870 A.2d 888, 897-98 (Pa.2005). It further
noted that recusal is unnecessary merely because a trial judge was involved
in a pre-trial proceeding. Id.
The trial court found:
[T]he record is devoid of any evidence that [Appellant]
desired [the trial c]ourt’s recusal or that the [c]ourt was
unable to preside impartially during the trial. At the
evidentiary hearing, [counsel] testified that he spoke with
[Appellant] before trial and at no time did [Appellant]
request a recusal or jury trial. [Counsel] advised
[Appellant] that a non-jury trial before [the trial c]ourt was
the better option, and [Appellant] agreed.
Furthermore, similar to Reyes, [the trial c]ourt presided
over the suppression hearing and [Appellant] informed
[the trial c]ourt before trial that he desired to proceed non-
jury before the [c]ourt. Unlike Reyes, none of the
evidence was suppressed pre-trial. Nevertheless, at the
non-jury trial, [counsel] objected to the admission of the
probable cause section of the warrant as it contained
information from a third party that would not be testifying.
[The trial c]ourt admitted the warrant itself and inventory
but removed Exhibit A (the affidavit) from evidence. [The
trial c]ourt noted it would not consider the affidavit. [The
trial c]ourt also informed [Appellant] that although it
previously reviewed it at the suppression hearing, it would
not be admissible during a jury trial and therefore, asked
[Appellant] if he still wanted to proceed non-jury before
the [c]ourt. [Appellant] noted that he wanted to continue
before [the trial c]ourt. As there is no evidence that that
[Appellant] desired [the trial c]ourt's recusal or that the
[c]ourt was unable to preside impartially during the trial,
this claim is meritless.
Opinion and Final Order, 3/10/2015, at 7 (internal citations omitted). This
was not error.
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Appellant’s final claim is that counsel erred in not challenging a
discrepancy in the weight of the drugs at issue. Appellant’s Brief at 5. The
trial court found:
Regarding a drug weight discrepancy, this matter was
addressed at the non-jury trial. Before the Commonwealth
rested, it noted that the criminal information charged
220.48 grains of cocaine but the total weight was actually
220.35 grams. As noted by [defense counsel], this was a
small discrepancy that did not affect its admissibility.
Accordingly, any claim related to [defense counsel’s]
ineffectiveness regarding the minimal weight discrepancy
is meritless.
Opinion and Final Order, 3/10/2015, at 7-8 (internal citations omitted). This
was not error.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2015
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