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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROY GARNETT :
:
Appellant : No. 2635 EDA 2018
Appeal from the PCRA Order Entered August 20, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003841-2015
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 24, 2019
Appellant, Roy Garnett, appeals from the order entered in the Court of
Common Pleas of Delaware County dismissing his first petition filed under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm.
On November 18, 2015, following a two-day trial, a jury convicted of
Possession with Intent to Deliver a Controlled Substance (Heroin), Possession
of a Controlled Substance (Heroin), Possession of Drug Paraphernalia, and
Criminal Conspiracy. On December 17, 2015, the court sentenced Appellant
to an aggregate term of 72 to 144 months’ incarceration, with an 11-year
probationary period to follow. Appellant filed a motion for reconsideration of
sentence, which the trial court denied on January 20, 2016.
Appellant filed a timely direct appeal on February 2, 2016. Among his
issues was the assertion that the trial court erroneously refused his request
to amend the qualification of a Commonwealth expert witness—whom the
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* Former Justice specially assigned to the Superior Court.
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Commonwealth had offered as an expert in narcotics distribution and
investigations—to include qualification as an expert in the area of narcotics
weight. This Court, however, determined Appellant had waived the claim
because trial counsel not only failed to object to the court’s refusal but also
failed to ask for recordation of the pertinent sidebar discussion that preceded
the refusal. See Commonwealth v. Garnett, 393 EDA 2016, unpublished
memorandum (Pa.Super. filed March 27, 2017). Notably, we also observed
Appellant had not explained why qualifying the expert witness on narcotics
weight was important when the Commonwealth did not rely on weight to prove
intent to deliver and Appellant offered no weight-based defense.
On March 26, 2018, Appellant filed a timely PCRA petition, his first.
Through counsel, Appellant claimed that trial counsel ineffectively failed to
object and make an appropriate record of the court’s expert qualification
ruling, and that direct appeal counsel ineffectively failed to assemble a
Pa.R.A.P. 19231 Statement containing an agreed-upon version of the sidebar
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1 Rule 1923, “Statement in Absence of Transcript,” provides:
If no report of the evidence or proceedings at a hearing or trial
was made, or if a transcript is unavailable, the appellant may
prepare a statement of the evidence or proceedings from the best
available means, including his recollection. The statement shall
be served on the appellee, who may serve objections or propose
amendments thereto within ten days after service. Thereupon the
statement and any objections or proposed amendments shall be
submitted to the lower court for settlement and approval and as
settled and approved shall be included by the clerk of the lower
court in the record on appeal.
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discussion at issue. The Commonwealth filed a court-ordered response, in
which it requested dismissal of Appellant’s petition without a hearing.
On July 17, 2018, the PCRA court filed a Notice of Intent to Dismiss
pursuant to Pa.R.Crim.P. 907. PCRA counsel filed a response to the Rule 907
Notice, but the PCRA court entered its Order of August 20, 2018, dismissing
Appellant’s petition without an evidentiary hearing. This timely appeal
followed.
Appellant raises two related issues asserting the ineffective assistance
of prior counsel. The first issue maintains, “trial counsel was ineffective when
he failed to put on the record his objection to the ruling about the qualifications
of Officer Donohue as an expert in narcotics weight. Moreover, trial counsel
was ineffective for failing to ensure that the [trial court] put its ruling on the
record.” Appellant’s brief, at 8. The second issue claims direct appeal counsel
failed “to follow the procedure of Pa.R.A.P. 1923 in order to supplement the
record where it was silent in reference to sidebar about the qualifying of Officer
Donohue as an expert in narcotics weight.” Id. at 10.
“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court’s ruling is
supported by the record and free of legal error.” Commonwealth v. Spotz,
171 A.3d 675, 678 (Pa. 2017). We must keep in mind that the petitioner has
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Pa.R.A.P. 1923.
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the burden of persuading this Court that the PCRA court erred and that such
error requires relief. Commonwealth v. Wholaver, 177 A.3d 136, 144-45
(Pa. 2018). This Court may affirm a valid judgment or order for any reason
appearing of record. Id. at 145.
To be entitled to relief on a claim of ineffective assistance of counsel, a
PCRA petitioner must establish that (1) the underlying claim is of arguable
merit; (2) there was no reasonable basis for counsel’s action or failure to act;
and (3) but for counsel’s error, there is a “reasonable probability the result of
the proceeding would have been different.” Commonwealth v. Treiber, 121
A.3d 435, 444 (Pa. 2015). Failure to satisfy any of the three prongs is fatal
to a claim of ineffective assistance of counsel. Commonwealth v. Spotz, 84
A.3d 294, 311 (Pa. 2014).
Moreover, we presume counsel provided effective assistance, and a
PCRA petitioner bears the burden of demonstrating counsel’s ineffectiveness.
Id.; see also Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011)
(noting “[w]hen evaluating ineffectiveness claims, judicial scrutiny of
counsel’s performance must be highly deferential.” (citation and internal
quotation marks omitted)). Additionally, the right to an evidentiary hearing
on a post-conviction petition is not absolute. Commonwealth v. Wah, 42
A.3d 335, 338 (Pa.Super. 2012).
Appellant’s two ineffectiveness claims implicate the same moment at
trial. As noted previously, the Commonwealth offered Officer Matthew
Donohue as an expert witness in illegal narcotics investigation. During voir
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dire on Officer Donohue’s qualifications, he testified he had been employed
with the Chester City Police Department for six years, the last two-and-one-
half years with the Narcotics Division. N.T. 11/18/15, at 5. He had taken
multiple classes on narcotics investigation and identification offered by the
Drug Enforcement Agency, and he had participated in undercover
investigations involving the use of confidential informants to obtain evidence
against suspected drug dealers. N.T. at 6-7.
Donohue, himself, frequently posed as a buyer and made drug buys
directly from drug dealers. N.T. at 7-8. His experience spanned “well over a
thousand” controlled substance investigations that resulted in arrests and
seizure of contraband, including approximately 250 involving heroin. N.T. at
8. He testified that he had gained additional knowledge about the illegal drug
trade by talking to hundreds of dealers he arrested who were willing to share
their knowledge and insights with him. N.T. at 11-12.
Based on this experience, Officer Donohue has provided expert opinion
in District Court “two or three times a week” regarding whether seized
controlled substances were possessed for personal use or with the intent to
deliver, he testified. N.T. at 12-13. The Commonwealth asked him whether,
therefore, in light of his training and experience, he was familiar with “the
manner of preparation, cost, packaging, and consistency and sale of weights
of heroin?” N.T. at 13. Donohue said that he was. Id.
The Commonwealth then referred back to his testimony that he had
been an expert witness in the field of “illegal drugs, drug distribution, and drug
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investigations,” and asked if he had testified to this effect in the Court of
Common Pleas, to which Officer Donohue answered that he had. N.T. at 13.
The Commonwealth, therefore, indicated it wished to offer Officer Donohue as
a witness “expert in the field of illegal drugs, drug distribution, and drug
investigations.” N.T. at 13-14.
Counsel for Appellant cross-examined Officer Donohue as to his
expertise. Specifically, counsel first asked if Donohue had just claimed to be
an expert “in the weight of heroin,” to which Donohue answered that he had.
N.T. at 14. Counsel then asked if Officer Donohue knew the difference
between a stationhouse weighing of heroin and a laboratory weighing.
Donohue replied that the initial stationhouse weighing keeps the heroin in
their baggies for safety reasons, whereas the crime laboratory, given its more
controlled environment, weighs the heroin after its removal from the baggies.
N.T. at 15. Counsel asked Donohue again if he believed he was just as
qualified to discuss the weight of a drug as he was to discuss whether the drug
was possessed for personal use or with the intent to deliver. Id. Officer
Donohue answered that he was. Id.
The court determined that Officer Donohue was qualified as an expert
“in illegal drugs, drug distribution, and drug investigation.” N.T. at 16.
Counsel for Appellant, however, asked that the court also deem Donohue
expert on drug weight, given Donohue’s testimony on cross-examination. Id.
The Commonwealth asked for a sidebar discussion, which took place off the
record. After sidebar, the Court announced to the jury the following:
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THE COURT: Ladies and gentlemen, I have found Officer
Donohue to be an expert witness in the field of illegal drugs, drug
distribution and drug investigation. What that means is that he
has certain specialized knowledge based on training and
experience that allows him to offer opinions that may assist you
in your deciding this case other than like lay witnesses that can’t
offer opinions.
N.T. at 16. Counsel offered no objection to the court’s ruling.
Appellant now contends that trial counsel ineffectively failed to object to
the court’s post-sidebar declaration of Officer Donohue expertise in the “field
of illegal drugs, drug distribution and drug investigation” without also
specifying an expertise in “drug weight.” He also claims trial counsel’s failure
to ensure a complete record of the sidebar discussion, and direct appeal
counsel’s failure to develop a Rule 1923 statement of the discussion,
constituted ineffective assistance.
Initially, we find problematic Appellant’s failure to indicate how the
absence of the words “drug weight” from the court’s declaration of expert
qualifications mattered, where Officer Donohue testified that part of his
expertise in drug distributions and investigations included a knowledge of drug
weights involved in illegal drug sales. See N.T. at 13, supra. Indeed, the
Commonwealth itself asked Officer Donohue if his training and experience
made him familiar with, inter alia, “the manner of . . . sale of weights of
heroin[,]” and he answered in the affirmative. He repeated this assertion and
variants thereof several times during extensive cross-examination on the
point, without objection.
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That the trial court elected to qualify Officer Donohue in accordance with
the wording of the Commonwealth’s offer—“an expert in the field of illegal
drugs, drug distribution and drug investigation”—would appear, therefore, to
be of no moment. The court did not explicitly exclude the subject of drug
weight from its declaration of qualifications, and, given the undisputed content
of Donohue’s testimony, the narrow subject of weight was implicitly
encompassed within the court’s broader declaration. We, therefore, disagree
with Appellant’s predicate claim to the extent it suggests that the court
precluded Officer Donohue from opining on the subject of drug weight and any
potential effect weight may have on Appellant’s case.
Perhaps more important, however, is the inadequacy of Appellant’s
“arguable merit prong” argument. Specifically, the entirety of his argument
states, “it cannot be said that there is no merit to the allegation of
ineffectiveness for failing to ensure that the record was not silent as to the
off-the-record discussion about Officer Donohue.” Appellant’s brief, at 9.
This conclusory statement does not even begin to explain what potential
underlying error with the court’s ruling could have become known if counsel
had objected or requested recordation of the sidebar discussion. Controlling
decisional law has rejected ineffectiveness claims as meritless under virtually
identical circumstances.
In Commonwealth v. Blakeney, 108 A.3d 739 (Pa. 2014), petitioner
Blakeney filed a PCRA petition claiming that direct appeal counsel rendered
ineffective assistance by failing to challenge an unrecorded sidebar discussion,
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conducted over Blakeney’s pro se objection, between the trial court,
prosecutor, and standby counsel. In affirming the order denying PCRA relief,
our Supreme Court explained a petitioner carries a burden to specify a
potentially meritorious underlying claim necessitating the transcription of the
off-the-record sidebar discussion; merely asserting broadly that transcription
may have revealed some error is insufficient:
[Blakeney] offers no specific argument as to what error might
have been revealed had this sidebar been transcribed. This Court
has recently explained the relevant legal principles applicable to
claims of this nature:
The U.S. Supreme Court has recognized that adequate
and effective appellate review is impossible without a
trial transcript or adequate substitute and has held
that the States must provide trial records to indigent
inmates. This Court has similarly concluded that a
criminal defendant is entitled to “a full transcript or
other equivalent picture of the trial proceedings” in
order to engage in meaningful appellate review.
However, in order to “establish entitlement to relief
based on the incompleteness of the trial record,
[Blakeney] must first make some potentially
meritorious challenge which cannot be adequately
reviewed due to the deficiency in the transcript.”
Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108,
1149 (2012) (citations omitted).
In Sepulveda, on collateral appeal in a capital case, the appellant
claimed that his rights to counsel, due process, and meaningful
appellate review were denied because a number of sidebars had
not been transcribed and counsel had not objected. Noting that
the appellant had failed to specify any potentially meritorious
claim that could not be adequately developed or reviewed because
sidebars had not been transcribed, but instead took an absolutist
position, unsupported by controlling authority, that a “full and
accurate” record necessarily includes transcription of all sidebars
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regardless of their substance, this Court dismissed the claim as
meritless. Id. at 1150.
Here, [Blakeney] makes a similar, broad-based claim without
supporting argument as to why the off-the-record sidebars,
including the single one to which he objected, should have been
transcribed, other than his claimed entitlement to review every
unrecorded discussion to determine whether some unspecified
error might have occurred. [Blakeney] has failed to establish his
underlying claim of incompleteness of the record. Thus, his claim
of ineffectiveness of appellate counsel for failing to challenge the
allegedly incomplete record on appeal lacks merit. Sepulveda,
supra. The PCRA court properly dismissed this claim of counsel
ineffectiveness without a hearing, as the claim failed to set forth
a material fact requiring additional review.
Blakeney, 108 A.3d at 764–65.
Like the petitioner in Blakeney, Appellant fails to articulate what
potentially meritorious underlying challenge escapes adequate review because
of prior counsels’ respective failures to make a record of the sidebar
discussion. Consequently, Appellant’s ineffectiveness claims against both trial
counsel and appellate counsel are without arguable merit. See Spotz, 84
A.3d at 311 (holding failure to satisfy any one prong defeats claim of
ineffective assistance of counsel).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/19
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