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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL RAY JAMES, :
:
Appellant : No. 4 WDA 2016
Appeal from the PCRA Order November 30, 2015
in the Court of Common Pleas of Erie County,
Criminal Division, No(s): CP-25-CR-0000939-2013
BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 11, 2016
Michael Ray James (“James”) appeals from the Order dismissing his
first Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. § 9541-9546. We affirm.
On February 12, 2013, the U.S. Marshal’s Fugitive Task Force served
an arrest warrant on James, who was staying in a hotel with his girlfriend,
De’Shuna Crosby (“Crosby”). The task force officers knocked on the door,
James opened the door, and the officers placed him in handcuffs. James
told the officers that Crosby and their 4-month-old son were inside. Crosby
walked into the hallway, carrying the baby and the baby’s car seat.
Detective Mark Rosenthal (“Detective Rosenthal”) conducted a search of the
car seat, which revealed three plastic bags containing white powder tucked
beneath the lining of the car seat. James admitted ownership of the drugs.
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The officers turned over the substance to Pennsylvania State Trooper
Donald Claypoole (“Trooper Claypoole”), who conducted a preliminary field
test and weighed the substance. Trooper Claypoole’s incident report
indicated that the plastic bags contained 199 grams of cocaine. Ted A.
Williams (“Williams”), a forensic scientist supervisor in Erie Regional
Laboratory, conducted further testing. Williams’s lab report stated that the
three plastic bags contained a total of 128.9 grams of cocaine and 53.6
grams of heroin.
Following a jury trial, James was convicted of endangering the welfare
of children, conspiracy to manufacture or possess a controlled substance
with intent to deliver, possession of drug paraphernalia, and two counts each
of possession with intent to deliver and possession of a controlled
substance.1 On January 10, 2014, the trial court sentenced James to an
aggregate term of 9 years, 9 months to 19½ years in prison. 2 The trial
court ordered that the sentence would be served consecutive to James’s
prior sentence, imposed following his guilty plea for involuntary
manslaughter. James filed a Motion for Reconsideration, which the trial
court denied. This Court affirmed James’s judgment of sentence on
November 10, 2014. See Commonwealth v. James, 113 A.3d 346 (Pa.
Super. 2014) (unpublished memorandum).
1
18 Pa.C.S.A. §§ 4304(a)(1), 903; 35 P.S. §§ 780-113(a)(32), (30), (16).
2
The two counts of possession with intent to deliver merged with the two
counts of possession for sentencing purposes.
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On April 13, 2014, James, pro se, filed the instant PCRA Petition.
James subsequently retained private counsel, who filed a Supplemental
PCRA Petition. The PCRA court issued a Pa.R.A.P. 907 Notice of Intent to
Dismiss on October 8, 2015. James filed a Response. On November 10,
2015, the PCRA court issued an Amended Rule 907 Notice, and ultimately
dismissed James’s Petition on November 30, 2015. James’s PCRA counsel
filed a Motion to Withdraw as Counsel, which the PCRA court granted. After
the PCRA court appointed James new counsel, James filed a timely Notice of
Appeal and a court-ordered Rule 1925(b) Concise Statement.
On appeal, James raises the following questions for our review:
I. Whether trial counsel was ineffective for stipulating to the
entry of the Pennsylvania State Police Lab Report analysis []
without confronting the lab technician who prepared said lab
report?
II. Whether [appellate] counsel was ineffective for failing to raise
on direct appeal the sufficiency of the evidence as to the
conviction for endangering the welfare of children?
Brief for Appellant at 4.
The applicable standards of review regarding the denial of a PCRA
petition and ineffectiveness claims are as follows:
Our standard of review of a PCRA court’s [dismissal] of a
petition for post[-]conviction relief is well-settled: We must
examine whether the record supports the PCRA court’s
determination, and whether the PCRA court’s determination is
free of legal error. The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the
certified record.
***
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It is well-established that counsel is presumed to have
provided effective representation unless the PCRA petition pleads
and proves all of the following: (1) the underlying legal claim is
of arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error. The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(citations omitted).
In his first claim, James argues that the PCRA court erred in finding
that his trial counsel was not ineffective for stipulating to the entry of
Williams’s lab report. Brief for Appellant at 11. James claims that
stipulating to the lab report results violated his Confrontation Clause rights,
pursuant to Crawford v. Washington, 541 U.S. 36 (2004),3 and
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).4 Brief for
3
In Crawford, the prosecution admitted into evidence a tape-recorded
statement given by the defendant’s wife, although she did not testify at trial.
See Crawford, 541 U.S. at 39-40. The United States Supreme Court held
that, where a witness does not testify at trial, the Confrontation Clause of
the Sixth Amendment prohibits the introduction of testimonial statements,
unless the witness is unavailable and the defendant had a prior opportunity
to cross-examine the witness. Id. at 68-69.
4
In Melendez-Diaz, affidavits reporting that seized evidence was cocaine
were admitted into evidence without allowing the defendant the opportunity
to cross-examine the lab analysts. Melendez-Diaz, 557 U.S. at 308. The
United States Supreme Court held that the lab analysts’ statements
contained within the report, which were prepared specifically for trial, were
testimonial in nature, and therefore, “the analysts were subject to
confrontation under the Sixth Amendment.” Id. at 324.
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Appellant at 11. James asserts that his counsel’s stipulation to the lab
report was unreasonable because the lab report effectively doubled the
number of possession with intent to deliver and possession charges against
him, based on the finding that the bags contained both heroin and cocaine,
thereby increasing his prison term. Id. at 11-12. James also argues that he
should have been able to cross-examine Williams regarding the
discrepancies between the initial field testing and the laboratory testing. Id.
at 12-13. James contends that cross-examination of Williams could have
revealed “anything from a mishandling in the chain of custody to a flat out
discovery of misconduct,” or other information that might have led to a
different outcome at trial. Id. at 14.
At trial, James’s trial counsel, in James’s presence, stipulated to the
introduction of Williams’s lab report, which identified the contents and
weight of the substances found in the baby’s car seat. See N.T., 11/12/13,
at 56-57. Additionally, James testified that he knew that the drugs were in
the hotel room. See N.T., 11/12/13, at 108-09, 125. James also testified
that while he was willing to admit to possession of the drugs, the drugs
belonged to his friend, Marcus Robuck (“Robuck”), who had rented the hotel
room. See id. at 106, 116, 117, 125. James stated that Robuck had
brought the drugs inside with the intent to sell them, but that Robuck left
earlier in the day, and left the drugs in the room. See id. at 106, 108.
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Because the crux of James’s defense rested on the premise that the
drugs were not his, it would be reasonable for his trial counsel to stipulate to
the contents of the lab report rather than to highlight the analyst’s specific
findings. Indeed, defense attorneys and defendants often stipulate to the
nature of substances found in drug cases, due to a number of strategic
considerations. See Melendez-Diaz, 557 U.S. at 328 (indicating that live
testimony often adds no benefit to analysts’ certificates, and can “highlight
rather than cast doubt upon the forensic analysis”).5 Further, the lab report
did not identify James as the perpetrator of the crimes, but merely identified
the illegal substances. Thus, because the lab report did not implicate
James’s defense, James’s disclaimer of ownership was not prejudiced by the
stipulation to the report. Accordingly, James failed to demonstrate that his
trial counsel was ineffective for stipulating to the lab report, and his first
claim is without merit.
5
Here, cross-examination regarding the discrepancies between the initial
field test and Williams’s lab report would have revealed that the initial field
test found a higher total quantity of drugs. See Amended Notice of Intent to
Dismiss, 11/10/15, at 3. James’s trial counsel could have reasonably
determined that highlighting the differences between the initial field test and
the lab report would be detrimental to James’s case. See Commonwealth
v. Howard, 719 A.2d 233, 237 (stating that “where matters of strategy and
tactics are concerned, counsel’s assistance is deemed constitutionally
effective if he chose a particular course that had some reasonable basis
designed to effectuate his client’s interest”). Moreover, the lab technician
could not testify to the police’s field tests, but instead would have been
limited to explaining the lab test and results. See Amended Notice of Intent
to Dismiss, 11/10/15, at 3-4.
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In his second claim, James argues that the PCRA court erred in finding
that James’s appellate counsel was not ineffective for failing to raise, on
direct appeal, a challenge to the sufficiency of the evidence regarding the
endangering the welfare of children conviction. Brief for Appellant at 16.
James asserts that there was insufficient evidence to sustain his conviction
because there was no evidence that the child could have come into physical
contact with the drugs, as the child was fully clothed, and the drugs were
under both the car seat cover and the car seat lining. Id. at 17-18. James
also claims that there was no evidence that he sold drugs from the hotel
room, or in the presence of the child. Id. at 18. James claims that he
suffered prejudice as a result of appellate counsel’s failure to raise this issue
because he received an additional 9 to 18 months consecutive sentence on
the endangering the welfare of children conviction. Id.
Here, James has failed to show that the underlying claim, a challenge
to the sufficiency of the evidence regarding the endangering the welfare of
children conviction, is of arguable merit. A parent or guardian commits the
offense of endangering the welfare of children if he “knowingly endangers
the welfare of the child by violating a duty of care, protection or support.”
18 Pa.C.S.A. § 4304(a). In order to sustain a conviction of this offense, the
Commonwealth must establish the following elements:
1) the accused is aware of [his] duty to protect the child; 2) the
accused is aware that the child is in circumstances that could
threaten the child’s physical or psychological welfare; and 3) the
accused has either failed to act or has taken action so lame or
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meager that such actions cannot reasonably be expected to
protect the child’s welfare.
Commonwealth v. Wallace, 817 A.2d 485, 490-91 (Pa. Super. 2002)
(citation omitted).
The record shows that the 4-month-old infant was staying in James’s
hotel room, which contained a significant quantity of cocaine and heroin.
See N.T., 11/12/13, at 52-53; see also Amended Notice of Intent to
Dismiss, 11/10/15, at 5. Trooper Church testified that upon entering the
hotel room, he observed a digital scale and plastic bags, paraphernalia
associated with drug trafficking. See N.T., 11/12/13, at 52. Trooper Church
also stated that he did not observe any paraphernalia that would be used to
consume, rather than sell, the drugs. See id. at 53.
Detective Rosenthal testified that when he asked Crosby to step into
the hallway, she walked back into the room to retrieve the car seat and baby
bag before leaving. See N.T., 11/12/13, at 34. The baby was still in the car
seat at that time. See id. at 35. Detective Rosenthal testified that Crosby
removed the infant from the car seat so he could conduct a search, and he
found three plastic bags containing white powder inside the lining of the car
seat. See id.
James testified that he knew the drugs were in the hotel room, and he
did not dispute that he was in possession of the drugs. See id. at 108-09,
125. James also stated that he hid the drugs in his son’s car seat. See id.
at 110.
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Contrary to James’s argument that his child was not in danger because
he could not have come into physical contact with the drugs, the statute
merely requires that the child be placed in danger, not that the harm
actually resulted. See 18 Pa.C.S.A. § 4304(a); see also Wallace, 817 A.2d
at 491-92 (stating that “the statute does not require the actual infliction of
physical injury. Nor does it state a requirement that the child [] be in
imminent threat of physical harm. Rather[,] it is the awareness by the
accused that his violation of his duty of care, protection and support is
‘practically certain’ to result in the endangerment to his [child’s] welfare….”)
(emphasis in original).
Here, “[James] continued to place the child in harm’s way by putting a
significant quantity of heroin and cocaine in the child’s car seat, placing the
child in the car seat, and attempting to smuggle the child by the police so
that the drug-trafficking activity could continue.” Amended Notice of Intent
to Dismiss, 11/10/15, at 6. Because there was sufficient evidence to sustain
a conviction of endangering the welfare of children, the underlying claim is
not of arguable merit. See Commonwealth v. Henke, 851 A.2d 185, 187
(Pa. Super. 2004) (stating that “[c]ounsel will not be deemed ineffective for
failing to raise a baseless claim”). Therefore, James is not entitled to relief
on the basis that his appellate counsel was ineffective for failing to raise this
claim on direct appeal.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2016
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