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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHAVAR L. THOMPSON :
:
Appellant : No. 1680 MDA 2017
Appeal from the PCRA Order September 22, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0003090-2013
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 28, 2018
Shavar L. Thompson appeals from the order entered on September 22,
2017, which denied his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
We adopt the following statement of facts and procedural history from
the PCRA court’s memorandum. See PCRA Ct. Memo., 08/29/2017, at 1-3.1
In spring 2013, police in Harrisburg learned from a confidential informant (CI)
that Thompson was engaged in the sale of narcotics. Thereafter, while under
police surveillance, the CI conducted two controlled buys of cocaine from
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* Retired Senior Judge assigned to the Superior Court.
1The certified record mislabels this memorandum as an order filed August 29,
2017. The court filed its order dismissing Thompson’s petition on September
22, 2017.
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Thompson. On a third occasion, an undercover police officer purchased
cocaine from Thompson. Following this third incident, police arrested him.
Although appointed counsel, Thompson elected to proceed pro se until
reinstating appointed counsel just prior to trial. Following trial, a jury
convicted Thompson of three counts of delivery of a controlled substance but
acquitted him of a fourth count alleging possession with intent to deliver.2
In March 2014, the court sentenced Thompson to 45 to 108 months of
incarceration. Thompson timely filed post-sentence motions, which were
denied, and he then appealed. This Court affirmed his judgment of sentence,
and the Supreme Court denied his petition for allowance of appeal.
Commonwealth v. Thompson, 120 A.3d 378 (Pa.Super. 2015)
(unpublished memorandum), appeal denied, 125 A.3d 1201 (Pa. 2015).
In September 2016, Thompson timely and pro se filed a petition seeking
collateral relief, asserting myriad issues. PCRA counsel was appointed. In
July 2017, following several extensions granted by the PCRA court, counsel
filed a petition to withdraw and a Turner/Finley letter analyzing Thompson’s
claims and concluding they were without merit.3 The court granted counsel’s
petition to withdraw; Thompson timely responded to counsel’s letter; and
thereafter, the PCRA court dismissed Thompson’s petition.
____________________________________________
2 See 35 P.S. § 780-113(a)(30).
3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
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Thompson timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The PCRA court issued a
responsive statement in which it directed our attention to its previous
memorandum addressing Thompson’s petition.
Thompson raises the following issues, reorganized and restated for
clarity:
1. Whether the PCRA court erred in denying relief, where the trial
court had erred previously when it
a. granted the Commonwealth’s motion to amend the
criminal information against Thompson;
b. forced Thompson to proceed pro se and did not inquire
properly whether substitute counsel should have been
appointed;
c. forced Thompson to proceed with a jury trial without
reviewing the merits of his pretrial motions;
2. Whether the PCRA court erred in denying relief, where the
Commonwealth committed Brady4 violations when it
a. suppressed illegal audio recordings of the alleged drug
transactions; and
b. intentionally withheld a report by Officer Olivia Conner;
and
3. Whether the PCRA court erred in denying relief, where trial
counsel provided ineffective assistance when she
a. failed to challenge the admissibility of tainted narcotics
evidence and failed to preserve such a challenge for
appeal;
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4 See Brady v. Maryland, 83 S. Ct. 1194 (1963).
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b. failed to challenge the jury panel as an unfair
representation of the community and thus violated his
right to a trial by his peers;
c. failed to challenge the anonymity of the CI or secure her
testimony at trial; and
d. failed to amend the omnibus pretrial motion in order to
suppress the allegedly unconstitutional, audio
surveillance by police investigators.
See Thompson’s Br. at 4-5 (edited for clarity).
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by record evidence and
free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa.
2007). We afford the court’s factual findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48 A.3d
1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995
A.2d 1184, 1189 (Pa. Super. 2010)). Further, we may affirm the PCRA court’s
decision on any grounds if the record supports it. See Commonwealth v.
Reed, 107 A.3d 137, 140 (Pa.Super. 2014).
Allegations of Direct Trial Court Error
In his first issue, Thompson asserts several errors by the trial court.
See Thompson’s Br. at 13-23. According to Thompson, the trial court erred
when it granted the Commonwealth’s motion to amend the criminal
information against him. Id. at 13-15. Thompson further asserts that the
trial court erred in “forcing” him to proceed pro se, in light of his irreconcilable
differences with appointed counsel. Id. at 15-19. Finally, according to
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Thompson, the trial court failed to review the merits of his pretrial motions
filed pro se. Id. at 19-23.
Each of these assertions by Thompson constitutes an allegation of direct,
trial court error. Thompson does not plead or attempt to prove ineffective
assistance of counsel with respect to these assertions. See PCRA Petition,
09/29/2016, at ¶ 13(a)-(c); Thompson’s Br. at 13-23. However, Thompson
failed to preserve these assertions before the trial court or raise them on direct
appeal. Accordingly, we deem them waived. See Commonwealth v. Harris,
852 A.2d 1168, 1171-72 (Pa. 2004) (denying collateral relief where petitioner
failed to raise confrontation claim on direct appeal); Commonwealth v.
Williams, 732 A.2d 1167, 1176 (Pa. 1999) (denying collateral relief where
general claims of trial court error were not raised on direct appeal); 42 Pa.C.S.
§§ 9543(a)(3), 9544(b).
Absent waiver, we note with approval certain of the PCRA court’s
conclusions that these claims lack merit. See, e.g., PCRA Ct. Memo. at 3-4
(recognizing that the trial court may permit the Commonwealth to amend an
information pursuant to Pa.R.Crim.P 564, provided it does not “charge an
additional or different offense,” quoting from the prior version of the rule), 5-
6 (rejecting Thompson’s attempt to secure a second appointment of counsel
where he had appointed counsel and then temporarily elected to proceed pro
se, where initially appointed counsel was ready to proceed and Thompson
merely sought to delay trial). Further, to the extent that Thompson suggests
the amendment to the information resulted in an illegal sentence, Thompson
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is incorrect. See PCRA Petition, 09/29/2016, at ¶ 13(a) (suggesting that
information was amended “for the purpose of mandatory minimum
sentencing”); Thompson’s Br. at 13-14 (same). Thompson was not sentenced
to a mandatory minimum sentence. See Criminal Dkt No. CP-22-CR-
0003090-2013 at p. 4-5; PCRA Ct. Memo. at 3-4.
Alleged Brady Violations
Next, Thompson asserts the Commonwealth suppressed (1) illegal audio
recordings of the narcotics transactions and (2) the police report filed by
Officer Olivia Conner, both constituting a Brady violation. As with his
assertions of trial court error, Thompson’s Brady claims are waived.
[A] prosecutor has an obligation to disclose all exculpatory
information material to the guilt or punishment of an accused,
including evidence of an impeachment nature. To establish a
Brady violation, an appellant must prove three elements: (1) the
evidence at issue was favorable to the accused, either because it
is exculpatory or because it impeaches; (2) the evidence was
suppressed by the prosecution, either willfully or inadvertently;
and (3) prejudice ensued.
Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (formatting
modified; citations omitted). Prejudice occurs if, had there been disclosure,
there is a reasonable probability that the result of a proceeding would have
been different. Id. However, Brady is not violated when an appellant knew
or could have uncovered the evidence in question, or where the evidence was
available from other sources. Id. at 608. Further, where a PCRA petitioner
could have raised a Brady claim at trial or on direct appeal, that claim is
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waived. Id. at 609 (citing in support Commonwealth v. Chmiel, 30 A.3d,
1111, 1129-30 (Pa. 2011)).
Here, Thompson knew of the allegedly missing evidence during trial.
See, e.g., Notes of Testimony (N.T.), 03/18-19/2014, at 81 (cross-
examination testimony from Detective Dennis Simmons explaining that there
was no audio recording made from a wire placed on undercover Ofc. Conner
for her safety); 106-07 (cross-examination testimony of Ofc. Conner
admitting that she had written a report, that it was not in her possession, and
that she was aware it was not provided to Thompson). Thus, as both of the
alleged violations could have been raised at trial or on direct appeal, they are
waived. Roney, 79 A.3d at 609; 42 Pa.C.S. §§ 9543(a)(3), 9544(b).
Further, even if we were to examine the merits of these claims, no relief
would be due. Regarding his first assertion, that the Commonwealth
suppressed illegal audio recordings, Thompson concedes that no such
recordings exist. See Thompson’s Br. at 23 (suggesting that the existence of
suppressed evidence is irrelevant). Regarding Officer Connor’s report, in light
of the overwhelming evidence of Thompson’s guilt, including eyewitness
testimony of his role in the narcotics transactions, Thompson cannot establish
prejudice. Thus, his Brady claims lack merit. Roney, 79 A.3d at 607.
Allegations of Trial Counsel Ineffectiveness
Finally, Thompson contends that trial counsel was ineffective. According
to Thompson, counsel was ineffective when she (1) failed to challenge (a) the
admissibility of tainted narcotics evidence; (b) the composition of the jury
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panel; (c) the anonymity of the CI; and (2) failed to amend the omnibus
pretrial motion in order to suppress the allegedly unconstitutional, audio
surveillance by police investigators. We will address each claim in turn.
To be eligible for relief for an ineffectiveness claim, a petitioner must
establish that counsel’s deficient performance “so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). We presume counsel is
effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). To
overcome this presumption, a petitioner must establish that: (1) the
underlying claim has arguable merit; (2) counsel lacked a reasonable basis for
his act or omission; and (3) petitioner suffered actual prejudice.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In order to
establish prejudice, a petitioner must demonstrate “that there is a reasonable
probability that, but for counsel's error or omission, the result of the
proceeding would have been different.” Commonwealth v. Koehler, 36
A.3d 121, 132 (Pa. 2012). A claim will be denied if the petitioner fails to meet
any one of these prongs. See Commonwealth v. Jarosz, 152 A.3d 344,
350 (Pa.Super. 2016) (citing Commonwealth v. Daniels, 963 A.2d 409, 419
(Pa. 2009)).
Thompson suggests that narcotics evidence collected during the
investigation was tainted. See, e.g., Thompson’s Br. at 28. According to
Thompson, the narcotics evidence collected on June 3, 2013, was maintained
improperly, its original packaging destroyed, and it arrived at the criminal lab
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in unsealed baggies. Id. Thus, Thompson concludes, trial counsel should
have challenged the admissibility of this evidence and properly preserved this
claim for direct appeal. Id. at 28, 33, 45.
Thompson has not accurately portrayed the record. The Commonwealth
elicited extensive testimony establishing the manner in which this narcotics
evidence was collected, maintained, and tested. See, e.g., N.T. at 60-61
(testimony from Detective Dennis Simmons describing two quantities of crack
cocaine collected June 3, 2013, from (1) controlled buy and (2) search incident
to Thompson’s arrest, and further describing manner in which he packaged
narcotics for testing); 118-26 (testimony from Officer Jason Turchetta
describing his role as evidence custodian responsible for maintaining evidence
collected during investigation and transporting evidence to criminal lab for
testing); 148-56 (testimony from Mr. Albert Lanttanzi, criminal lab scientist,
who stated narcotics arrived in separate, sealed packaging, was tested by him,
and then replaced into two, separate, heat-sealed bags). Based upon our
review of the record, Thompson’s underlying claim alleging tainted narcotics
evidence is without merit. Thus, Thompson’s ineffectiveness claim fails. See
Treiber, 121 A.3d at 445.
Thompson next suggests that the venire from which his jury was
selected did not fairly represent the community. Thompson’s Br. at 37.
According to Thompson, the venire failed to include sufficient “urban American
minorities” such that the final, empaneled jury could “fairly weigh the
conflicting testimony of a white female officer.” Id. at 38. Further, according
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to Thompson, when he expressed this concern to counsel, she declined to
object. Id. at 38-39. Thus, Thompson concludes, counsel was ineffective.
See id. at 39.
To establish a prima facie case that a community’s jury pool selection
process violates the Sixth Amendment’s fair cross-section requirement, a
defendant must show:
1) the group allegedly excluded is a distinctive group in the
community; 2) representation of this group in the pool from which
juries are selected is unfair and unreasonable in relation to the
number of such persons in the community; and 3) the under-
representation is due to the systematic exclusion of the group in
the jury selection process.
Commonwealth v. Lopez, 739 A.2d 485, 495 (Pa. 1999).
Here, Thompson has made no effort to establish either the second or
third requirement. Thompson does not quantify the minority representation
on the venire from which his jury was selected, nor does he compare this
representation proportionally with the community at large. Further, he neither
pleads nor attempts to prove that the alleged under-representation is due to
the systematic exclusion of this group. Accordingly, we conclude that this
claim is without merit, and counsel was not ineffective for not making it. See
Treiber, 121 A.3d at 445.
Thompson also suggests that the identity of and testimony from the CI
was essential to impeach the testimony of police investigators and establish
an entrapment defense. Thompson’s Br. at 40-41. According to Thompson,
without this evidence, he was denied a fair trial. Id. at 41. Therefore,
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Thompson concludes, trial counsel’s failure to secure testimony from the CI
constituted ineffective assistance. See id. at 39, 41.
Before disclosure of an informer’s identity is required, “the record should
at least suggest a reasonable possibility that the information might be helpful,
so that it would be unfair to withhold it.” Commonwealth v. Herron, 380
A.2d 1228, 1230 (Pa. 1977). Here, Thompson points to no evidence of record
that would support an entrapment defense. Thus, his bald assertion that
testimony from the CI was essential is merely self-serving and does not
establish a reasonable possibility that it would be helpful. Id. Further, in light
of the extensive evidence against Thompson, including eyewitness testimony
and substantial physical evidence collected during the three controlled buys,
we conclude that Thompson cannot establish a reasonable probability that
testimony from the CI – even if favorable to him – would change the result of
his trial. Thus, in the context of his ineffective assistance of counsel claim,
Thompson cannot establish prejudice. See Koehler, 36 A.3d at 132.
Finally, Thompson suggests that counsel was ineffective when she
refused to file a motion to suppress evidence based upon the Commonwealth’s
alleged violations of the Pennsylvania Wiretapping and Electronic Surveillance
Control Act, 18 Pa.C.S. §§ 5701-5782. Thompson’s Br. at 41-44. In this
claim, Thompson renews certain allegations raised previously in his Brady
claim, in which he asserted that police investigators illegally recorded his
crimes. Id.; see also id. at 23-24.
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This Court has previously found that the failure to file a
suppression motion under some circumstances may be evidence
of ineffective assistance of counsel. However, if the grounds
underpinning that motion are without merit, counsel will not be
deemed ineffective for failing to so move.
Commonwealth v. Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016)
(formatting modified; internal citations omitted).
As noted previously, investigators did not create an audio recording
from a wire placed on undercover Officer Conner for her safety. Thompson
has cited no evidence to the contrary. Moreover, even if such a recording
existed, the Commonwealth did not seek to introduce it at trial. Thus, there
was no valid basis for counsel to file a motion to suppress this illusory
evidence. Thompson’s claim is without merit. Id.; see Treiber, 121 A.3d at
445.
For these reasons, we discern no error in the PCRA court’s dismissal of
Thompson’s petition. He is entitled to no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/28/2018
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