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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ISAAC BILAL PEARSON, :
:
Appellant : No. 2116 EDA 2018
Appeal from the PCRA Order Entered July 16, 2018
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004988-2015
BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 28, 2019
Isaac Bilal Pearson (“Pearson”), pro se, appeals from the Order denying
his first Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
In February 2015, Allentown Police Detective Jason Krasley (“Detective
Krasley”), while investigating prostitution, responded to an internet
advertisement on backpage.com. Through text messages, Detective Krasley
arranged to meet Elizabeth Lopez (“Lopez”) at a specified room in the Royal
Motel in Allentown. Upon his arrival, Detective Krasley observed Pearson exit
the specified room and leave the premises in a dark-colored vehicle. Another
officer followed Pearson’s vehicle as it departed the motel. After Detective
Krasley gained entrance to the room, Lopez offered him sex in exchange for
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1 42 Pa.C.S.A. §§ 9541-9546.
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money. Detective Krasley then asked to use the bathroom, at which time he
observed another woman, Kelly Favazza (“Favazza”), exit the bathroom.
Detective Krasley subsequently arrested Lopez for prostitution, and arrested
Favazza for possession of drug paraphernalia.
At trial, Favazza testified that she had met Pearson while staying in a
recovery house for her heroin addiction. Pearson, an employee of the
recovery house, arranged for Favazza to leave the facility and stay at a motel.
Pearson provided heroin to Favazza and posted Favazza’s photograph on
backpage.com. Pearson used a cellular telephone to receive responses from
the website posting. Favazza was to pay Pearson for narcotics and the motel
room through prostitution. Favazza paid Pearson approximately $250.00 to
$400.00 a day. Pearson controlled Favazza by limiting her access to narcotics.
Detective Krasley learned, through discussions with Pearson’s girlfriend,
Shelly Dewitt (“Dewitt”), the three cell phone numbers used by Pearson to
facilitate prostitution.
On March 12, 2015, Detective Krasley again responded to an
advertisement listed on backpage.com. Detective Krasley was directed to
Room 216 of the Roadway Inn, on Downeyflake Lane in Allentown. Upon
Detective Krasley’s arrival at the room, Angelie Schular (“Schular”) opened
the door and offered him sex for money. After agreeing to the price, Schular
disrobed. At that time, Detective Krasley placed Schular under arrest. Schular
explained that a black male named Jay a/k/a Cap a/k/a Buddy had posted her
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photograph on the backpage.com website. She further explained that the
same man had transported her to motel rooms and collected all of her income.
According to Schular, the man collected $900.00 from her that morning, and
would be arriving shortly to collect additional funds. At Detective Krasley’s
request, Schular telephoned the man. Schular advised Detective Krasley that
the man would be driving a silver Chevrolet.
Shortly thereafter, Pearson arrived at the scene in a silver Chevrolet.
Detective Krasley dialed the number that Schular had called earlier, and one
of Pearson’s cell phones rang, displaying Detective Krasley’s telephone
number. Detective Krasley also dialed a number listed on backpage.com, at
which time a second cell phone in Pearson’s possession rang.2
Following a trial, during which Pearson proceeded pro se,3 a jury
convicted Pearson of two counts of trafficking in individuals, and one count
each of promoting prostitution and criminal use of a communication facility.4
The trial court thereafter sentenced Pearson to an aggregate prison term of
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2 A forensic analysis of Pearson’s three cell phones disclosed photographs of
women who were posted on backpage.com, “as well as a video of [Pearson]
coaching [] Dewitt to try to get the girls to return to work for him.” Trial Court
Opinion, 4/4/16, at 7. In addition, in a recorded telephone conversation from
the Lehigh County Jail, Pearson discussed being a pimp and controlling his
girls. See id.
3 Pearson represented himself pre-trial and throughout the proceedings.
Standby counsel was appointed, who assisted Pearson.
4 See 18 Pa.C.S.A. §§ 3011(a), 4902(b)(3), 7512(a).
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17 to 34 years. This Court affirmed Pearson’s judgment of sentence, after
which the Pennsylvania Supreme Court denied allowance of appeal. See
Commonwealth v. Pearson, 169 A.3d 1177 (Pa. Super. 2017) (unpublished
memorandum), appeal denied, 170 A.3d 996 (Pa. 2017).
On January 8, 2018, Pearson timely filed the instant PCRA Petition, his
first. The PCRA court described what next transpired as follows:
Matthew Rapa, Esquire [(“Attorney Rapa”)], was appointed to
represent [Pearson] on his [Petition] for Post Conviction Collateral
Relief. On April 5, 2018, Attorney Rapa authored a “no-merit
letter” pursuant to Commonwealth v. Finley, 550 A.2d 213
(1988), advising [Pearson] of his professional opinion that
[Pearson] is not eligible for relief under the [PCRA]…. After a
hearing on April 30, 2018, [the PCRA court] allowed Attorney Rapa
to withdraw as attorney of record. At this time, [Pearson]
indicated his desire to proceed pro se at the evidentiary hearing,
as well as his willingness and readiness to proceed at that time.
Consequently, a hearing relative to [Pearson’s PCRA Petition] was
conducted before [the PCRA court] on April 30, 2018 ….
PCRA Court Opinion, 7/16/18, at 2-3. On July 16, 2018, the PCRA court
denied Pearson post-conviction relief. Thereafter, Pearson, pro se, filed the
instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
Pearson presents the following claims for our review:
1. Did the trial court err in failing to suppress information
extracted on 10-7-15 from [Pearson’s] cell phone[, which] was
seized on 3-12-15[,] incident to arrest, where no “exigent
circumstances” existed[?] A search warrant for the contents of
[Pearson’s] phone was sworn out on 9-30-15 at 10:29 a.m.[,]
and expired on 10-2-15 [at] 10:29 a.m. It was not executed[,]
and the information not extracted until 10-7-15[,] five days
after the search warrant had expired.
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2. Was Pearson denied due process by not being allowed to
[c]onfront [a]ccuser [Schular] … [,] whose statements [were]
the only implicating evidence to effectuate Pearson’s
warrantless arrest[?] Pearson did timely object at the
preliminary hearing [on] 5-19-15, at [the] pretrial hearing [on]
12-17-15[,] and [at] trial …. [, but] Schul[a]r was never called
as a Commonwealth witness[,] leaving the impression [that]
impropriety,] and fair adjudication was denied.
3. … Since the Commonwealth [led] the jury to believe Pearson’s
funds were from prostitution[,] but did not meet its burden at
the forfeiture hearing[,] where the standard of proof was lower,
was the jury verdict wrong? Was the state short of the
statu[tory] requirements for the charges [of] promoting
prostitution and human trafficking for financial benefit? Did
[the PCRA court’s] admissibility ruling severely miss the mark
on [Pearson’s] [e]xculpatory [evidence] [c]laim[,] since the
said currency was the crux of the Commonwealth’s
conviction[,] and Pearson proved entitlement? Pearson’s
$905.00 in U.S. currency was ordered to be returned by [the
forfeiture court]. Can [Pearson] be guilty of operating a
business of prostitution[,] where his currency had no nexus
with unlawful activity[,] as ruled by the forfeiture court?
4. Was [standby trial counsel] ineffective[,] during [the] cross[-]
examination of [] Favazza[,] by failing to move for
impeachment for possibly granted leniency on behalf of the
Commonwealth by dismissing [Favazza’s] pending charges … ?
[Was counsel ineffective for] failing to raise case[-]specific
arguments of legal insufficiency on [Pearson’s Pa.R.A.P.]
1925(b) [Concise Statement,] or that police lacked probable
cause to effectuate a warrantless arrest for the charge of
promoting prostitution on 3-12-15, [where] the state
presented no indication of [] Schul[a]r’s reliability[,] or that the
information possessed by police had a degree of dependency
in the totality of the circumstances?
Brief for Appellant at 3-4 (unnumbered, citations and emphasis omitted).
Pearson first claims that the trial court improperly failed to suppress the
information extracted from his cell phone on October 7, 2015. Id. at 7
(unnumbered). Pearson contends that the search warrant on the cell phone,
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which was seized incident to his arrest, was not executed until five days after
the warrant had expired. Id. Pearson recognizes that on direct appeal, this
Court deemed the issue waived, based upon his failure to raise the issue
before the trial court. Id. Pearson contends that, before the PCRA court, he
showed where, in the record, he preserved the issue. Id.
As our Supreme Court has recognized, “[t]o 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).” Commonwealth v. Cousar, 154 A.3d 287,
296 (Pa. 2017).
Additionally, [an] appellant must show [that] his claims have not
been previously litigated or waived, and [that] “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.” 42 Pa.C.S.A. § 9543(a)(3), (a)(4). An issue
is previously litigated if “the highest appellate court in which
[appellant] could have had review as a matter of right has ruled
on the merits of the issue.” 42 Pa.C.S.[A.] § 9544(a)(2). An issue
is waived if appellant “could have raised it but failed to do so
before trial, at trial, ... on appeal or in a prior state post[-]
conviction proceeding.” 42 Pa.C.S.A. § 9544(b).
Id.
Our review of the record discloses that Pearson raised this claim on
direct appeal. See Pearson, 169 A.3d 1177 (unpublished memorandum at 2
(setting forth the issues raised by Pearson on direct appeal), 4 (addressing
Pearson’s claim and deeming it waived)). Thus, Pearson’s present claim was
not cognizable under the PCRA, as he previously had litigated the claim on
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direct appeal. See 42 Pa.C.S.[A.] § 9544(a)(2), (b). Consequently, we
cannot grant Pearson relief on this claim. See Cousar, 154 A.3d at 296.
In his second issue, Pearson claims that he was denied due process
because he was not able to confront Schular, his “accuser.” Brief for Appellant
at 8 (unnumbered). According to Pearson, “to omit [] [Schular,] but allow
Detective [] Krasley to testify as a third party only inflamed the jury and was
prejudicial to Pearson’s trial.” Id. at 9 (unnumbered). Pearson cites to
Detective Krasley’s testimony that Schular had implicated Pearson, and that
Pearson had received $905.00 from Schular’s “prostituting herself.” Id.
Pearson appears to argue that this testimony is hearsay, and points out that
the funds in question subsequently were returned to Pearson. Id. Without
the admission of Schular’s statements, Pearson asserts, he would not have
been convicted. Id.
In its Opinion, the PCRA court addressed this claim as follows:
[Pearson] argues that he was denied his right to confront his
accuser, [] Schular. This argument is baseless, as [] Schular was
never called as a witness by the Commonwealth to testify against
[Pearson]. The only reference to [] Schular at trial occurred when
[Pearson] himself questioned Detective [] Krasley about who []
Schular claimed her pimp to be. Moreover, no objection was made
at the time of trial, and therefore[,] any issue surround[ing] [the]
same has been waived.
PCRA Court Opinion, 4/16/18, at 5. Our review confirms the PCRA court’s
determination that the claim lacks merit, and we affirm on the basis of the
PCRA court’s above-stated rationale. See id.
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In his third issue, Pearson argues that the return of the $905.00 seized
by the police exonerated him. Brief for Appellant at 10 (unnumbered).
According to Pearson, the Commonwealth Court reversed the forfeiture of
these funds because there was no direct evidence connecting the funds to
unlawful activity. Id. Pearson contends that the source of the funds is the
“crux” of the Commonwealth’s case against him, and because he was entitled
to the return of those funds, the jury’s verdict was “wrong.” Id. at 11
(unnumbered). Without those funds, Pearson argues, the “financial gain”
required to establish the crime of human trafficking cannot be met. Id.
Our review discloses that in Commonwealth v. Pearson, 178 A.3d
972 (Pa. Cmwlth. 2017) (unpublished memorandum), the Commonwealth
argued that the $905.00 in cash was subject to “common law” forfeiture. Id.
(unpublished memorandum at 1). The Commonwealth Court, however,
concluded that the Commonwealth’s forfeiture claim was “neither initiated
under, nor authorized by statute[.]” Id. Specifically, the Commonwealth
Court explained that common law forfeiture does not exist in Pennsylvania,
and that “the Crimes Code does not authorize forfeiture as a sanction for this
criminal conviction.” Id. (unpublished memorandum at 6). The
Commonwealth Court declined to allow forfeiture of the funds based upon
Pearson’s conviction of human trafficking, as the Commonwealth did not
allege, in its forfeiture Motion, that the funds were connected to human
trafficking. Id. (unpublished memorandum at 7). Contrary to Pearson’s
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claim, the Commonwealth Court’s decision did not address the relevance or
admissibility of such evidence during Pearson’s criminal trial. Therefore,
Pearson’s claim in this regard lacks merit.
Finally, Pearson claims that his standby counsel rendered ineffective
assistance during the cross-examination of Favazza, “by failing to impeach for
possible granted lenience on behalf of the Commonwealth by dismissing
pending charges” against her. Brief for Appellant at 12 (unnumbered).
Pearson also asserts that standby counsel was ineffective for failing to raise
“case specific arguments of legal insufficiency,” “or that police lack probable
cause to effectuate a warrantless arrest for the charge of promoting
prostitution on 3-12-15[.]” Id. Pearson also argues that certain hearsay
evidence was not sufficient to proceed to trial, and that he was denied his
right to challenge the affidavit of probable cause. Id.
To the extent that Pearson is asserting ineffective assistance of standby
counsel the law is clear:
When a defendant elects to proceed at trial pro se, the
defendant—and not standby counsel—is in fact counsel of record
and is responsible for trying the case. This understanding of the
limited role of standby counsel is essential to satisfy the United
States Supreme Court’s directive that a defendant’s choice to
proceed pro se “must be honored out of ‘that respect for the
individual which is the lifeblood of the law[,]’” even when the
defendant acts to his or her own detriment. [Faretta v.
California, 422 U.S. 806, 834 (1975).] This understanding also
underlies [the Pennsylvania Supreme Court’s] prior holding that a
defendant who chooses to represent himself cannot obtain relief
by raising a claim of ineffectiveness of counsel or standby counsel.
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Commonwealth v. Spotz, 47 A.3d 63, 83 (Pa. 2012) (some citations
omitted). Thus, we cannot grant Pearson relief on his claims of ineffective
assistance by standby counsel.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/19
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