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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LAMAR SHAREEF CRUMPLER, :
:
Appellant : No. 27 MDA 2019
Appeal from the PCRA Order Entered December 3, 2018
in the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001569-2014
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 28, 2019
Lamar Shareef Crumpler (“Crumpler”) appeals from the Order
dismissing his Petition filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously set forth the relevant factual and procedural
history as follows:
State Trooper Rodney Fink [(“Trooper Fink”)] utilized a
confidential informant [(“CI”)] to conduct a controlled purchase of
heroin from [Crumpler] in Franklin County on July 24, 2014, and
August 5, 2014. As a result, Trooper Fink executed a search
warrant at [Crumpler’s] home on August 6, 2014, and recovered
two firearms, heroin and marijuana packaged for sale, drug
paraphernalia, and over $12,000.00.
The Commonwealth charged [Crumpler] with two counts
each of persons not to possess firearms, delivery of a controlled
substance, possession with intent to deliver a controlled substance
(“PWID”), [and] criminal use of a communication facility, and one
count of [possession of] drug paraphernalia. On July 27, 2015,
[Crumpler] pled guilty to the seven drug-related counts and
received a trial date for his two firearms charges. The [trial] court
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sentenced [Crumpler,] on September 2, 2015, to an aggregate
term of four (4) to eight (8) years’ imprisonment for the drug
convictions. [Crumpler] did not file a direct appeal. Instead, on
June 10, 2016, [Crumpler] timely filed a pro se PCRA [P]etition
related to the drug convictions.
On July 5, 2016, [Crumpler] proceeded to a jury trial on his
two firearms charges. ... [A Newark Police Department detective]
established that [Crumpler] had pled guilty to [PWID in New
Jersey in February 2001].
The jury convicted [Crumpler] of both counts of persons not
to possess firearms. On August 10, 2016, the court sentenced
[Crumpler] to an aggregate term of five (5) to ten (10) years’
imprisonment for the firearms convictions. [Crumpler] timely
[appealed.] Around the same time, [Crumpler] filed a [M]otion to
withdraw his pro se PCRA [P]etition, which the court granted, and
reinstated his direct appeal rights[,] nunc pro tunc[,] from his
September 2, 2015 judgment of sentence. [Crumpler] timely filed
an amended [N]otice of appeal on September 20, 2016, to include
his September 2, 2015 judgment of sentence. …
Commonwealth v. Crumpler, 169 A.3d 1188 (Pa. Super. 2017)
(unpublished memorandum at 1-3). On appeal, Crumpler challenged only the
judgment of sentence imposed for his persons not to possess firearms
convictions, which this Court affirmed on April 19, 2017. See id. (unpublished
memorandum).
Crumpler, pro se, filed the instant timely PCRA Petition on September
8, 2017. The PCRA court appointed Crumpler counsel, who filed two Amended
Petitions on his behalf. The PCRA court conducted an evidentiary hearing, and
subsequently dismissed Crumpler’s Petition on December 3, 2018. Crumpler
thereafter filed the instant timely appeal and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal.
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Crumpler now raises the following issues for our review:
1. The PCRA [c]ourt erred by denying [Crumpler’s] claim that
counsel was ineffective by failing to adequately object to[,] or to
attempt to exclude[,] evidence of a prior criminal conviction in
New Jersey, and to then fail to properly develop the issue on
appeal[?]
2. The PCRA [c]ourt erred by denying [Crumpler’s] claim that by
failing to challenge/file a motion to suppress related to the
probable cause [A]ffidavit in the application for the search warrant
of [Crumpler’s] residence, counsel was ineffective at the pre-trial
stage of this matter[?]
3. The PCRA [c]ourt erred by denying [Crumpler’s] claim that
counsel was ineffective by opening the door to permit the
Commonwealth to present evidence of [Crumpler’s] testimony
and conduct at a separate forfeiture proceeding[?]
Brief for Appellant at 6.
Crumpler’s issues challenge the effectiveness of his prior counsel. The
applicable standards of review regarding the dismissal 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.
***
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
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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, Crumpler argues that trial counsel was ineffective for
failing to attempt to exclude evidence of his prior criminal conviction in New
Jersey. Brief for Appellant at 13. Crumpler also argues that direct appeal
counsel was ineffective for failing to properly develop such claim on appeal.
Id. According to Crumpler, the testimony concerning his prior conviction,
which spanned 15 pages of trial testimony, was “considerably more” than a
mere admission of a specific predicate offense. Id. at 14.1
While challenging direct appeal counsel’s failure to develop this issue on
appeal, Crumpler continues to present this claim for review with only minimal
____________________________________________
1 We observe that Crumpler’s first claim is not specifically raised in his Concise
Statement. See Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues not
included in the Statement … are waived.”); see also Commonwealth v.
Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (stating that a concise
statement “must be specific enough for the trial court to identify and address
the issue an appellant wishes to raise on appeal.” (citation, quotation marks
and brackets omitted)). Instead, Crumpler’s Concise Statement includes a
general allegation that counsel “was ineffective for failing to preserve the
issues raised on appeal by not developing the issues in his [b]rief ..., thereby
resulting in waiver….” Concise Statement, 1/22/19. However, the PCRA court
was able to ascertain that Crumpler intended to challenge direct appeal
counsel’s failure to develop his claim that he was unfairly prejudiced by
testimony concerning his prior conviction. See PCRA Court Opinion, 1/28/19,
at 5-6. Thus, we decline to deem Crumpler’s first issue waived on this basis.
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development, and a hurried discussion of the prongs of the ineffectiveness
test. See 1925(a) Opinion, 1/28/19, at 6 (stating that “[e]ven if there had
been an issue to develop during [Crumpler’s] appeal as of right, [Crumpler]
also failed to develop the issue with a collateral attack in his subsequent PCRA
[P]etition.”). Additionally, Crumpler baldly claims that he was prejudiced by
the lengthy discussion of his prior offense, but fails to argue that the outcome
of the proceedings would have been different but for counsel’s alleged failures.
See Franklin, supra. We will nevertheless address whether Crumpler’s first
claim has arguable merit.
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015); see also
Pa.R.E. 402. “Evidence is relevant if it has any tendency to make a fact more
or less probable than it would be without the evidence[,] and the fact is of
consequence in determining the action.” Pa.R.E. 401. However, “[t]he court
may exclude relevant evidence if its probative value is outweighed by the
danger of … unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Pa.R.E.
403; id., cmt. (explaining that unfair prejudice is “a tendency to suggest
decision on an improper basis or to divert the jury’s attention away from its
duty of weighing the evidence impartially.”). Further, in a persons not to
possess firearms case, a defendant does not suffer “unfair prejudice merely
by the admission into evidence of his or her certified conviction of a specific,
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identified, predicate offense, which has been offered by the Commonwealth to
prove the prior conviction element of [18 Pa.C.S.A. §] 6105 [(persons not to
possess firearms)].” Commonwealth v. Jemison, 98 A.3d 1254, 1262 (Pa.
2014).
At trial, counsel objected to the introduction of Crumpler’s prior
conviction as evidence only on the basis of relevance. On appeal, this Court
affirmed the trial court’s determination that evidence of Crumpler’s New
Jersey conviction was relevant for purposes of establishing Crumpler’s identity
(he had used an alias in the New Jersey criminal event), and establishing the
New Jersey conviction as a qualifying predicate offense for purposes of Section
6105. See Crumpler, supra (unpublished memorandum at 11-12). Our
review of the transcripts reveals that the Newark detective’s testimony
pertained only to Crumpler’s New Jersey conviction, the relevant state
statutory definition of the offense and the applicable sentencing scheme, and
Crumpler’s use of an alias during the commission of the crime. See N.T.,
7/5/16, at 17-32; see also Jemison, supra. Further, the Newark detective’s
testimony was not used as evidence of Crumpler’s bad character or propensity
to commit crime, nor did it have a tendency to suggest that the jury render
its decision on an improper basis. See generally Jemison, 98 A.3d at 1262
(concluding that jury instruction directing the jury to consider defendant’s
prior offense only as evidence to establish the prior conviction element
mitigated any possibility of unfair prejudice); see also Pa.R.E. 403, cmt.
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Thus, as Crumpler failed to establish that his underlying claim is of arguable
merit, he is not entitled to relief on this claim.
In his second claim, Crumpler contends that trial counsel was ineffective
for failing to file a motion to suppress, challenging the Affidavit of probable
cause supporting the search warrant for his residence. Brief for Appellant at
16. Crumpler argues that the controlled purchase of heroin at an “undisclosed
location” was insufficient to establish probable cause to believe that
possession and distribution of heroin was occurring at Crumpler’s residence.
Id. at 16-17. According to Crumpler, the police did not observe any criminal
activity at his residence. Id. at 17.
Here, Crumpler has failed to show that the underlying claim, i.e., that
the search warrant was not supported by probable cause, is of arguable merit.
The PCRA court addressed this claim as follows:
[T]he [A]ffidavit in the instant case contains detailed information
that [Crumpler’s] residence was used in the commission of the
crimes charged. In the instant case[,] a [CI] was used to conduct
controlled buys. The [A]ffidavit indicates that the CI called
[Crumpler] to effectuate the purchase of heroin. Law enforcement
officers observed [Crumpler] leaving his residence … shortly
thereafter. [Crumpler] then met with the CI, sold the CI heroin,
and returned to his residence…. [Additionally,] the [A]ffidavit of
[P]robable [C]ause in the instant case indicates that the police
actually observed [Crumpler] departing his residence shortly after
being contacted by the CI[,] and the police also observed him
returning to his residence after selling heroin to the CI. The
[c]ourt finds that … the evidence provided in the [A]ffidavit in the
instant case did give rise to probable cause to search [Crumpler’s]
home. …
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PCRA Court Opinion and Order, 12/4/18, at 11-12 (citations to record and
paragraph breaks omitted). Regarding the July 2014 controlled buy, our
review of the Affidavit of Probable Cause attached to the search warrant
application confirms that the CI called Crumpler to arrange a meeting; shortly
after the phone call, police surveillance units observed Crumpler riding a
bicycle near his residence; police observed Crumpler’s meeting with the CI;
and surveillance units observed Crumpler enter the fenced yard on the south
side of the residence. See Affidavit of Probable Cause, 8/6/14, at 2. Further,
regarding the August 2014 controlled buy, our review likewise confirms that
the CI called Crumpler to arrange a meeting; within minutes of the phone call,
surveillance units observed Crumpler leave the residence and meet with the
CI; following the arranged meeting, surveillance units observed Crumpler
enter the fenced yard on the south side of the residence, and re-enter the
house. See id. We therefore agree with the PCRA court’s determination that
the factual recitation contained in the Affidavit of Probable Cause was
sufficient to establish a nexus between Crumpler’s residence and the drugs
purchased, and that the search warrant was supported by probable cause.
See Commonwealth v. Clark, 28 A.3d 1284, 1292 (Pa. 2011) (concluding
that search warrant for defendant’s residence was supported by probable
cause, where police observed defendant leaving his residence, conducting the
controlled buy, and returning to his residence, consistent with information
provided by a CI). Thus, Crumpler is not entitled to relief on the basis that
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trial counsel was ineffective for failing to raise this claim in a motion to
suppress.
In his third claim, Crumpler asserts that the PCRA hearing brought to
light “newly discovered” information, i.e., that trial counsel had “opened the
door” to the admission of statements made by Crumpler in an unrelated
forfeiture proceeding. Brief for Appellant at 19. Crumpler claims that the
evidence was prejudicial because it made the jury aware of additional
firearms. Id. at 19-20.
Crumpler failed to raise this claim in his Concise Statement, and
therefore, it is waived. See Pa.R.A.P. 1925(b)(4)(vii); see also
Commonwealth v. Berry, 877 A.2d 479, 485 (Pa. Super. 2005) (stating that
any issues not raised in a Rule 1925(b) concise statement are waived on
appeal). Additionally, Crumpler fails to fully develop this claim by pointing to
the relevant portions of the trial and PCRA hearing testimony. See Pa.R.A.P.
2119(a) (requiring that each point in an argument contain “such discussion
and citation of authorities as are deemed pertinent.”); see also
Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014)
(concluding that appellant waived his claim by failing to adequately develop
his argument or provide citation to and discussion of relevant authority).
Based upon the foregoing, we affirm the PCRA court’s Order dismissing
Crumpler’s Petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/28/2019
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