Com. v. Hill-Gamble, C.

J-S38041-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CALVIN JAMAR HILL-GAMBLE :
:
Appellant : No. 58 MDA 2020

Appeal from the PCRA Order Entered December 19, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005209-2014

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 10, 2020

Appellant Calvin Jamar Hill-Gamble files this pro se appeal from the

order of the Court of Common Pleas of Dauphin County denying his petition

pursuant to the Post-Conviction Relief Act (PCRA).1 Appellant argues that he

is entitled to a new trial due to the ineffectiveness of his trial counsel. After

careful review, we affirm the order denying Appellant’s petition.

On August 22, 2014, at approximately 3:12 a.m., Officer Matthew

Corby of the Swatara Police Department observed a silver Chrysler 300 with

a black driver’s side quarter panel. Notes of Testimony (N.T.), Trial,

10/27/15, at 42-44, 322-23. Officer Corby noticed that this vehicle that

matched the unique description of a car that had been reported stolen and

____________________________________________

* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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observed that the vehicle’s registration light was burned out. N.T. at 44-45.

When Officer Corby ran the license plate, he discovered the vehicle had not

been reported stolen, but its registration was expired. N.T. at 45.

Officer Corby subsequently activated the overhead lights of his patrol

car and initiated a traffic stop of the vehicle. The vehicle did not

immediately stop and “hastily” pulled into the parking lot of the Ivy Ridge

Apartments, after which the three occupants attempted to escape the

vehicle. N.T. at 52, 54, 61. When Officer Corby commanded the occupants

to remain in the vehicle and pulled out his firearm, the occupants put their

hands up but fled the scene, leaving the doors of the vehicle open and the

engine running. N.T. at 52-53.

While Officer Corby caught up to the driver, Antoine Dayd, and placed

him under arrest, Officer Corby was unable to apprehend the other two

occupants of the vehicle. N.T. at 56-59. Officer Corby indicated that Dayd

had told him that the other occupants of the vehicle were “J and Mark.” N.T.

at 110.

Thereafter, Officer Corby looked into the rear seat window of the

vehicle and observed a clear bag containing a white, chalky substance in the

backseat cup holder, which Officer Corby suspected was cocaine. N.T. at 61-

62. A search of the vehicle revealed several boxes of bullets, three ski

masks, binoculars, twenty bags of heroin, a digital scale, a driver’s license

update card with Appellant’s name, and three firearms (two of which were

determined to be stolen). N.T. at 61-88, 94-95.

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In addition, Officer Corby discovered a Samsung Galaxy S5 cell phone

in the front passenger seat door handle. N.T. at 73, 86-87. After Officer

Corby obtained a search warrant for the Galaxy S5 phone, he discovered

that the phone number associated with this phone was 717-736-6647 and

that this number was transferred to another phone on August 23, 2014, the

day after the Galaxy S5 had been seized in the traffic stop.

While Officer Corby was only able to apprehend the driver of the

vehicle, Antoine Dayd, Officer Corby observed the other two occupants and

described them as black males that appeared to be in their 20s or early 30s.

N.T. at 53-58, 91. Officer Corby recalled that the front-seat passenger was

wearing a blue collared shirt and the rear passenger was wearing a black

shirt. N.T. at 53, 122. Officer Corby saw the front seat passenger running

towards the apartment complex and then lost sight of him. N.T. at 53.

Officer Corby also determined that the vehicle was registered to

Appellant. N.T. at 87-88. When Officer Corby ran the vehicle’s registration

and saw the picture for the registered owner of the vehicle, Officer Corby

found this person resembled the front seat passenger that had fled from

Appellant’s vehicle that evening. N.T. at 91. Officer Corby admitted that he

could not “say with 100% certainty that was definitely the same person.”

N.T. at 91.

On August 25, 2014, Appellant contacted the Swatara Police

Department and requested to remove items from his vehicle. N.T. at 91-93.

In doing so, Appellant provided his house phone number and also his

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mother’s phone number as he claimed that he did not have a cell phone.

N.T. at 92-93. Thereafter, Officer Corby obtained and executed an arrest

warrant for Appellant and found him to be in possession of a Samsung

Galaxy S3 phone, which had the same phone number as the Galaxy S5 that

had been left in Appellant’s vehicle. N.T. at 92-94.

Appellant was charged with possession of a controlled substance with

intent to distribute (PWID), several violations of the Uniforms Firearms Act

(VUFA), and various offenses related to his possession of the drugs, guns,

and paraphernalia that was discovered in his vehicle. At the time of the

vehicle stop, Appellant did not have a license to carry a firearm as he was

not permitted to possess firearms due to his prior criminal convictions.

Appellant proceeded to a jury trial at which Officer Corby testified to

the aforementioned events. The Commonwealth also offered the testimony

of Joseph Sierra, a custodian of records for T-Mobile, who indicated that the

subscriber information for the number 717-736-6647 showed that the

account was prepaid, which did not require the user to provide name or

address verification. N.T. at 214-17. Sierra also testified that a review of

the device history showed that the aforementioned phone number was

switched from one device to another sometime between August 22-23,

2014. N.T. at 218-20. The last outgoing message from the former phone

was sent at 2:56 a.m. on August 22, 2014, twenty minutes before the stop

occurred. N.T. at 217-18.

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In addition, several individuals who resided at the Ivy Ridge

Apartments on the day of the traffic stop in question testified at trial. N.T.

at 60, 97. Michelle Stolle testified that she lived on the third floor of the

apartment complex and was getting ready to go into work for 4 a.m. on

August 22, 2014 when she saw red flashing lights from a police car outside

her bathroom window. N.T. at 115-118. When she looked out the window,

she saw a “black gentleman in a black shirt running across the lawn.” N.T.

at 118.

Stolle exited her apartment to go report her observation to the officers

and descended the open-air stairway to the second floor. Stolle stopped at

the second floor balcony and observed an officer with his firearm drawn.

N.T. at 119. At that point, Stolle heard a nearby voice say, “It’s fine.” N.T.

at 120. When Stolle looked to her left, she observed a “lighter-skinned”

African-American gentleman, who was “shorter than normal” and was

wearing a blue polo shirt. N.T. at 120, 126-27. Stolle noticed that this man

was approximately seven feet away and talking to an unidentified occupant

of Apartment #203. N.T. at 120. Stolle did not believe this encounter had

any significance until she heard Officer Corby indicate that one of the men

who fled from the vehicle was wearing a blue collared shirt. N.T. at 122.

Appellant’s half-sister, Brittany Hill, who shares the same father with

Appellant, testified that she lived with her mother at Apartment #203 of the

Ivy Ridge Apartments on August 22, 2014. N.T. at 141-143. Hill recalled

that in the early morning hours, her mother woke her up to tell her that the

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police were outside with a patrol car and flashing lights and were looking at

Appellant’s car. N.T. at 142-43. Hill indicated that she went outside to talk

to police and tell them the vehicle belonged to her brother. N.T. at 145.

Both Hill and her mother, Caroline Everson, denied seeing Appellant that

night. N.T. at 152, 312-13.

Appellant testified on his own behalf, claiming that he was not in his

car when the vehicle was pulled over by Officer Corby. N.T. at 345.

Appellant asserted that he had been drinking heavily on the night in

question, asked Antoine Dayd to drive him home in his vehicle, and went to

bed when he got home. N.T. at 338-42. Appellant claimed that he allowed

Dayd to keep his vehicle that evening so that Dayd could fix the bumper and

front driver’s side of his vehicle the next morning. N.T. at 333-36. The next

morning, Appellant transferred his number to a new phone as he believed he

had lost his phone due to the fact that he was drunk. N.T. at 342-44.

Appellant described himself as being of “mixed” race; while he

admitted that his skin tanned well in the summer, he admitted that he was

“light skinned” at the time of trial. N.T. at 326-37. While on direct

examination, Appellant claimed to be 5’9”, he admitted on cross-

examination that he “gave himself an inch” and conceded that his PennDOT

license information indicates he was 5’8.” N.T. at 351-52. Appellant

asserted that he was not the individual Dayd referred to as “J” that was in

his vehicle on the night of Officer Corby’s stop. N.T. at 353-54. While

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Appellant claimed that his friends would referred to him by his nickname

“Curly,” Appellant admitted his middle name is Jamar. N.T. at 330-31.

After the trial concluded, the jury convicted Appellant of three counts

of firearms not to be carried without a license, and one count each of

persons not to possess firearms, receiving stolen property, possessing

instruments of crime, PWID, possession of a controlled substance, and

possession of drug paraphernalia.2 On January 26, 2016, Appellant was

sentenced to an aggregate term of ten to twenty years’ imprisonment.

On February 5, 2016, Appellant filed a post-sentence motion, arguing

inter alia, that the trial court did not adequately set forth its reasons for

imposing its sentence on the record. On February 29, 2016, the trial court

granted the post-sentence motion in part and vacated his sentence, agreeing

that Appellant was entitled to be resentenced at a hearing at which the trial

court fully set forth its rationale for imposing its sentence.

On March 22, 2016, the trial court resentenced Appellant to an

aggregate term of ten to twenty years’ imprisonment. On January 17, 2017,

this Court affirmed the judgment of sentence and on July 18, 2017, the

Supreme Court denied Appellant’s petition for allowance of appeal.

Commonwealth v. Hill-Gamble, 678 MDA 2016 (Pa.Super. 2017)

____________________________________________

218 Pa.C.S.A. §§ 6106(a)(1), 6105(a)(1), 3925(a), 907(a), 35 P.S. §§ 780–
113(a)(30), (a)(16), and (a)(32), respectively.

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(unpublished memorandum), appeal denied, 642 Pa. 76, 169 A.3d 1052

(2017).

On September 27, 2018, Appellant filed a pro se PCRA petition.3 The

PCRA court subsequently appointed Jonathan Crisp, Esquire, who filed an

amended petition on Appellant’s behalf. On November 25, 2019, the PCRA

court filed notice of its intent to dismiss the petition without a hearing

pursuant to Pa.R.A.P. 907. Thereafter, on December 19, 2019, the PCRA

court dismissed Appellant’s petition.

On January 6, 2020, Appellant filed a pro se notice of appeal. On

January 15, 2010, Attorney Crisp filed a notice of appeal. On January 24,

2020, this Court filed a per curiam order directing the trial court to hold a

Grazier hearing to determine whether Appellant wished to proceed pro se or

with the assistance of Attorney Crisp.4 After a hearing, the PCRA court

permitted Appellant to proceed pro se on appeal.

Appellant raises the following issues for review on appeal, verbatim:

I. Did the PCRA court [err] when it held that trial counsel was
not ineffective for failing to object to and file a motion in
____________________________________________

3 Appellant’s petition meets the PCRA timeliness requirements. Generally, a
PCRA petition “including a second or subsequent petition, shall be filed
within one year of the date the judgment of sentence becomes final.” 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the
review. 42 Pa.C.S.A. § 9545(b)(3).
4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (requiring on-the-

record inquiry to determine whether waiver of counsel is knowing,
intelligent, and voluntary).

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limine to preclude the prosecutor from using
unauthenticated Facebook messages in an attempt to
connect a phone number to [Appellant] which denied him
his 14th Amendment rights.

II. Did the PCRA court [err] when it held that trial counsel was
not ineffective for introducing prejudicial and irrelevant
testimony of other crimes by having [Appellant] testify
that he committed other crimes similar to the one he stood
trial for?

III. Did the PCRA court [err] when it held that trial counsel was
not ineffective in failing to object to the trial court’s failure
to provide the definition and adequately explain
constructive possession during it’s instruction to the jury
which denied [Appellant] his 14th Amendment rights.

IV. Did the PCRA court [err] when it held that trial counsel was
not ineffective for failing to request a judgment of acquittal
due to the prosecutor presenting evidence consistent with
two opposing propositions. And the evidence was
insufficient as a matter of law to sustain the verdict.

Appellant’s Brief, at 5 (reordered for ease of review).

Our standard of review is well-established:

[o]ur review of the grant or denial of PCRA relief is limited to
examining whether the PCRA court's findings of fact are
supported by the record, and whether its conclusions of law are
free from legal error. Commonwealth v. Cox, 636 Pa. 603, 146
A.3d 221, 226 n.9 (2016). The PCRA court's credibility
determinations, when supported by the record, are binding on
this Court; however, we apply a de novo standard of review to
the PCRA court's legal conclusions. Commonwealth v. Burton,
638 Pa. 687, 158 A.3d 618, 627 n.13 (2017).

Commonwealth v. Small, 647 Pa. 423, 440–41, 189 A.3d 961, 971

(2018). Further,

A petitioner is not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no
genuine issue concerning any material fact, the petitioner is not
entitled to PCRA relief, and no purpose would be served by any
further proceedings.

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Commonwealth v. Postie, 200 A.3d 1015, 1022 (Pa.Super. 2018) (en

banc) (citation omitted).

As noted above, Appellant raises various arguments in which he

claimed he is entitled to new trial due to the ineffectiveness of his trial

counsel. We are guided by the following principles:

[a]s originally established by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, [104
S.Ct. 2052, 80 L.Ed.2d 674] (1984), and adopted by
Pennsylvania appellate courts, counsel is presumed to
have provided effective representation unless a PCRA
petitioner 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 at trial if not for
counsel's error.

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014)
(citations omitted). “A failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim of
ineffectiveness.” Commonwealth v. Daniels, 600 Pa. 1, 963
A.2d 409, 419 (2009).

Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa.Super. 2020).

First, Appellant claims the PCRA court erred in denying his claim that

his trial counsel was ineffective for failing to argue that the prosecution

should have been precluded from admitting unauthenticated Facebook

messages associated with the phone found in Appellant’s vehicle and the

phone in Appellant’s possession upon his arrest as they unfairly suggested

that Appellant was engaged in illegal activities.

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Pennsylvania Rule of Evidence 901 sets forth the requirement that

evidence must be authenticated before it is admitted. Rule 901(a) provides

that “[t]he proponent must produce evidence sufficient to support a finding

that the item is what the proponent claims it is.” Pa.R.E. 901(a). Rule

901(b) provides a non-exhaustive list of evidence that could be used to

satisfy the authentication requirement. This list includes “testimony of a

Witness with Knowledge … that an item is what it is claimed to be.” Pa.R.E.

901(b)(1). Evidence can also be authenticated by circumstantial evidence

as set forth in Rule 901(b)(4): “Distinctive Characteristics and the Like. The

appearance, contents, substance, internal patterns, or other distinctive

characteristics of the item, taken together with all the circumstances.”

Pa.R.E. 901(b)(4).

Our court has rejected the notion that electronic communication is

inherently unreliable due to its relative anonymity and the difficulty

connecting the electronic message to a specific author with certainty. In re

F.P., 878 A.2d 91, 95 (Pa.Super. 2005). This Court has emphasized that

the “same uncertainties exist with traditional written documents [as] a

signature can be forged; a letter can be typed on another’s typewriter;

distinct letterhead stationary can be copied or stolen.” Id.

As such, this Court declined to construct separate rules to evaluate the

admissibility of instant messages and other forms of electronic

communication, but emphasized that such messages can be authenticated

within the framework set forth in Pa.R.E. 901 and precedential law. Id.

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“[E]mails and text messages are documents and subject to the same

requirements for authenticity as non-electronic documents generally.”

Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa.Super. 2011), affirmed by

an equally divided court, 630 Pa. 374, 106 A.3d 705 (2014).

The question of the admissibility of instant messages and other

electronic communication must be “evaluated on a case-by-case basis as

any other document to determine whether or not there has been an

adequate foundational showing of their relevance and authenticity.” In re

F.P., 878 A.2d at 96. Further, “[a]uthentication generally entails a relatively

low burden of proof; in the words of Rule 901 itself, simply ‘evidence

sufficient to support a finding that the item is what the proponent claims.’”

Commonwealth v. Murray, 174 A.3d 1147, 1156–57 (Pa.Super. 2017)

(quoting Koch, 630 Pa. 374, 106 A.3d 705, 713 (2014) (Castille, C.J., in

support of affirmance) (quoting Pa.R.E. 901(a)).

In this case, the prosecution presented evidence that Appellant

created the relevant social media account. There is no dispute in this case

that Appellant was the owner of both the Samsung Galaxy S5 phone

recovered from Appellant’s vehicle and the Galaxy S3 phone found in

Appellant’s possession upon his arrest. An extraction report revealed that

both phones were associated with the relevant Facebook account belonging

to “Calvin Hill.” N.T. at 229-233.

In addition, the messages contained contextual clues that corroborated

the prosecution’s claim that Appellant was the author of the messages.

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Appellant specifically listed his first name in a Facebook message he sent on

the day of the traffic stop; this conversation was contained on Appellant’s

cell phone. N.T. at 233-34. In another Facebook message when an

individual messaged “Calvin” asking for his phone number, the author of the

messages texted the number 736-6647, which is the number associated with

both of Appellant’s phones. N.T. at 233.

Another conversation revealed Appellant’s identity as the author of the

message by referring to the preceding stop of Appellant’s vehicle and the

confiscation of his stolen weapons. When an individual named “Uncle Carl,”

sent a Facebook message on August 28, 2014, to Appellant’s account asking

if Appellant “had some heat,” a subsequent outgoing message sent eighteen

minutes later states “Nah. Lost it all wit my car.” N.T. at 240. The

prosecution presented testimony that the term “heat” can be used as slang

for a firearm. N.T. at 296. As such, this message’s reference to the “loss”

of weapons from the author’s car substantiates that Appellant had written

these messages about Officer Corby’s seizure of stolen firearms from his car

several days earlier.

Based on this evidence, we find that there was sufficient evidence to

authenticate the Facebook messages such that their admission was proper.

As such, there is no arguable merit to Appellant’s argument that trial counsel

was ineffective in failing to object to the admission of the Facebook

messages in question.

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Even assuming Appellant’s claim had merit, Appellant has failed to

show prejudice to the effect that there was a reasonable probability of a

different outcome at trial if not for counsel's error. See Selenski, supra.

Appellant concedes that Officer Corby effectuated a lawful stop of his

vehicle, which contained crack cocaine, heroin, stolen firearms, drug

paraphernalia and Appellant’s cell phone (which was located in the front

passenger door). Officer Corby testified that the front-seat passenger who

fled towards the Ivy Ridge apartment complex was wearing a blue collared

shirt and resembled Appellant’s picture associated with the vehicle’s

registration information.

In addition, a disinterested witness indicated that at the time of stop

of Appellant’s vehicle, she observed a light-skinned African-American male

wearing a blue polo talking to the occupants of Ivy Ridge Apartment #203,

where Appellant’s half-sister lived with her mother. As such, the

prosecution’s circumstantial evidence led to a strong inference that Appellant

was the front seat passenger that fled from his vehicle upon the vehicle stop

in question.

Given the prosecution’s substantial evidence against Appellant, we

cannot find that the outcome of Appellant’s trial would have been different

had trial counsel objected to the admission of the Facebook messages in

question. Accordingly, the PCRA court did not err in denying this claim of

ineffectiveness.

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Second, Appellant argues that the PCRA court erred in dismissing his

claim that trial counsel was ineffective in asking him on the witness stand

about his past history of dealing drugs and participating in illegal activities.

It is well-established that:

[t]he decision of whether or not to testify on one's own behalf is
ultimately to be made by the defendant after full consultation
with counsel. In order to sustain a claim that counsel was
ineffective for failing to advise the appellant of his rights in this
regard, the appellant must demonstrate either that counsel
interfered with his right to testify, or that counsel gave specific
advice so unreasonable as to vitiate a knowing and intelligent
decision to testify on his own behalf.

Commonwealth v. Nieves, 560 Pa. 529, 533–34, 746 A.2d 1102, 1104

(2000).

As an initial note, Appellant does not develop a claim on appeal that

trial counsel was ineffective in advising Appellant with respect to his decision

to testify on his own behalf. Our review of the record shows that the PCRA

court conducted an oral colloquy to determine whether Appellant’s choice to

testify was voluntary, knowing, and intelligent. N.T. at 169-171. Appellant

does not argue that his decision to testify was unknowing or involuntary.

Rather, Appellant criticizes trial counsel for subjecting him to a line of

questioning about his past involvement in selling drugs and firearms.

However, Appellant fails to acknowledge that the prosecution had already

admitted evidence that suggested that Appellant had sold drugs and illegal

firearms.

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After trial counsel used this line of questioning, Appellant was able to

stress to the jury that he had never sold heroin or cocaine, but only sold

marijuana. While Appellant admitted to being a “middleman” in the sale of

illegal firearms, Appellant expressly denied that the cocaine, heroin, and

stolen firearms seized from his vehicle belonged to him.

In choosing to testify, Appellant was also able to provide support for

defense counsel’s theory that Appellant was not in his vehicle at the time of

Officer Corby’s stop and offer an explanation that he had allowed his co-

defendant Dayd to borrow his vehicle to repair it on the next day.

We find that Appellant has not proven he was prejudiced by counsel’s

line of questioning about Appellant’s involvement in selling marijuana and

facilitating illegal firearm sales. Appellant’s concession of certain illegal

behavior allowed him to explain the admitted instant messages suggesting

he sold drugs and firearms and to deny possessing and/or selling the

cocaine, heroin, and illegal firearms found in his vehicle. Moreover, as noted

above, the prosecution presented substantial evidence of Appellant’s guilt.

As a result, we cannot conclude that Appellant has proven that the

outcome of his proceeding would have been different had trial counsel

refrained from asking Appellant to concede certain aspects of his past

criminal behavior. See Selenski, supra. As such, the PCRA court did not

err in denying this claim of ineffectiveness.

Third, Appellant asserts that the PCRA court erred in dismissing his

claim that trial counsel was ineffective in failing to object to the trial court’s

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failure to provide a jury instruction on constructive possession. In reviewing

this challenge, we are guided by the following principles:

[A] trial court possesse[s] broad discretion in phrasing its
instructions to the jury and [is] permitted to choose its own
wording so long as the law [is] clearly, adequately and
accurately presented to the jury for consideration.
Commonwealth v. (Roy) Williams, 557 Pa.207, 732 A.2d
1167, 1187 (1999); Commonwealth v. Hawkins, 549 Pa. 352,
701 A.2d 492, 511 (1997), cert. denied, 523 U.S. 1083, 118
S.Ct. 1535, 140 L.Ed.2d 685 (1998). Furthermore, a trial court
need not accept counsel's wording for an instruction, as long as
the instruction given correctly reflects the law. (Roy) Williams,
732 A.2d at 1187; Commonwealth v. Ohle, 503 Pa. 566, 470
A.2d 61, 70 (1983). It is axiomatic that, in reviewing a
challenged jury instruction, an appellate court must consider the
charge in its entirety, not merely isolated fragments, to ascertain
whether the instruction fairly conveys the legal principles at
issue. Commonwealth v. Jones, 546 Pa. 161, 683 A.2d 1181,
1196 (1996). Instructions will be upheld if they adequately and
accurately reflect the law and are sufficient to guide the jury
properly in its deliberations. Commonwealth v. Rivera, 565
Pa. 289, 773 A.2d 131, 139 (2001); Commonwealth v.
Gibson, 553 Pa. 648, 720 A.2d 473, 481 (1998).

Commonwealth v. Rainey, 593 Pa. 67, 112–13, 928 A.2d 215, 242–43

(2007).

Specifically, with respect to constructive possession, this Court has

held that:

[c]onstructive possession is a legal fiction, which is invoked
when actual possession at the time of arrest cannot be shown,
but there is a strong inference of possession from the facts
surrounding the case. Constructive possession has been defined
as “conscious dominion,” which requires two elements: the
power to control the contraband and the intent to exert such
control.

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Commonwealth v. Battle, 883 A.2d 641, 644–45 (Pa.Super. 2005)

(citations omitted), abrogated on other grounds by Commonwealth v.

Jette, 23 A.3d 1032 (Pa. 2011).

In a similar case, in Battle, this Court held that Battle’s trial counsel

was not ineffective for failing to request a jury instruction on constructive

possession in his prosecution related to drugs found in Battle’s residence

that he shared with his co-defendant. While this Court found Battle’s claim

had arguable merit as the trial court should have instructed the jury on

constructive possession in addition to actual possession, this Court found

that counsel had a reasonable strategy in refraining from objecting to the

deficient charge, which would “likely have harmed her client by stressing the

fact that possession can be proven through circumstances other than actual

possession.” Battle, 883 A.2d at 646-47 (noting that the prosecution is

more likely to request a constructive possession instruction, which “expands

the scope of possession statutes to encompass defendants who are not

arrested in actual possession of the controlled substances at issue”).

Additionally, this Court found that Battle failed to show he was

prejudiced by counsel’s inaction. This Court emphasized the substantial

evidence presented against Battle and the fact that the jury charge given

(on actual possession) was more favorable to Battle than a constructive

possession charge as the trial court did not inform the jury that it could find

Battle guilty of possession charges even though he had no drugs on his

person when he was arrested.

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Likewise, in this case, we find that Appellant has failed to show that

trial counsel had no reasonable basis for failing to request an instruction on

constructive possession.5 It was a reasonable strategy to avoid placing

emphasis on the fact that Appellant could be convicted of the possessory

offenses even though Appellant had no contraband on his person when he

was arrested.

Furthermore, we cannot find Appellant was prejudiced by counsel’s

inaction, as Appellant has not shown that the outcome of the proceeding

would have been different if the constructive possession charge was given

when viewing the substantial evidence presented against Appellant. As

such, we find this ineffectiveness claim fails.

Lastly, Appellant claims the PCRA court erred in dismissing Appellant’s

claim that trial counsel was ineffective for failing to request a judgment of

acquittal. Appellant argues that the prosecution asked the jury to make

“two equally and mutually inconsistent inferences” from the same set of

circumstances. Appellant’s Brief, at 8.

We fail to see the merit of Appellant’s argument as the prosecution

presented one single proposition that Appellant fled from the front passenger
____________________________________________

5 “[C]ounsel's stewardship may be deemed effective if any reasonable basis
for his or her actions is apparent from the record, and counsel's actual
reasoning need not be established at an evidentiary hearing.”
Commonwealth v. Washington, 592 Pa. 698, 733, 927 A.2d 586, 606
(2007) (quoting Commonwealth v. Hancharik, 534 Pa. 435, 633 A.2d
1074, 1079 (1993)).

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seat of his vehicle when stopped by Officer Corby and that Appellant

possessed the drugs, firearms, and paraphernalia in the vehicle, which he

concedes belongs to him. We emphasize that “[c]ounsel cannot be deemed

ineffective for failing to raise a meritless claim.” Commonwealth v. Fears,

624 Pa. 446, 461, 86 A.3d 795, 804 (2014) (quoting Commonwealth v.

Washington, 592 Pa. 698, 927 A.2d 586, 603 (2007) (citations omitted)).

For the foregoing reasons, we affirm the PCRA court’s order dismissing

Appellant’s petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/10/2020

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