J-S45045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BILLY GIBSON :
:
Appellant : No. 1852 EDA 2018
Appeal from the PCRA Order Entered May 25, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008036-2013
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 16, 2019
Billy Gibson (Gibson) appeals from the order entered in the Court of
Common Pleas of Philadelphia County (trial court) dismissing his petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,
without a hearing. We affirm.
We take the following facts and procedural history from the July 1, 2016
memorandum decision issued in Gibson’s case on direct appeal and our
independent review of the record. This case stems from Gibson’s arrest after
police acted on a tip from a known, confidential informant (CI), conducted a
Terry1 pat-down of his person at a bar and discovered drugs (crack cocaine
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* Retired Senior Judge assigned to the Superior Court.
1 Terry v. Ohio, 392 U.S. 1 (1968).
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and Percocet) and a gun. Police also recovered additional narcotics during the
search of Gibson’s vehicle. On March 11, 2015, the trial court denied Gibson’s
motion to suppress and motion to reveal the identity of the CI.
The case proceeded to a bench trial and the court found Gibson guilty
of possession with intent to deliver a controlled substance, possession of a
controlled substance, person not to possess a firearm, carrying a firearm
without a license, and carrying a firearm in public in Philadelphia. 2 On July
17, 2015, the court sentenced Gibson to an aggregate term of not less than
fifty-six nor more than 120 months’ incarceration followed by five years of
probation. This Court affirmed his judgment of sentence and our Supreme
Court subsequently denied his petition for allowance of appeal on October 24,
2016.
Gibson, acting pro se, filed the instant PCRA petition on February 2,
2017, and appointed counsel filed an amended petition. After issuing notice
of its intent to do so, the PCRA court entered its order dismissing the petition.
See Pa.R.Crim.P. 907(1). This timely appeal followed.
First, Gibson challenges the PCRA court’s denial of his PCRA petition
without holding an evidentiary hearing when he raised meritorious issues
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2 35 P.S. §§ 780-113(a)(30) and (a)(16); 18 Pa.C.S. §§ 6105(a)(1),
6106(a)(1), and 6108.
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concerning the ineffective assistance of trial and appellate counsel and
prosecutorial misconduct. (See Gibson’s Brief, at 3, 8-12).3
At the outset, we note that “[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.” Postie, supra at 1022 (citation omitted).
Next, Gibson argues that his trial counsel was ineffective for failing to
obtain a police All Incidents Report (Report) showing the exact times that calls
were made at the address of the subject bar.4 (See Gibson’s Brief, at 9-10).
Gibson asserts that because the police testified that the radio call containing
the flash information was broadcast at approximately 12:45 a.m., counsel
should have obtained the Report to demonstrate the officers’ lack of
credibility. (See id.).
“The law presumes counsel has rendered effective assistance.” Postie,
supra at 1022 (citation omitted). “In general, to prevail on a claim of
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3 “Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. This Court grants great
deference to the findings of the PCRA court if the record contains any support
for those findings.” Commonwealth v. Postie, 200 A.3d 1015, 1022 (Pa.
Super. 2018) (en banc) (citations omitted).
4The Report shows calls made at 12:56 a.m. and 1:35 a.m. for “investigation
of persons” and “weapon violations,” respectively. (See Exhibit A to Amended
PCRA petition, 9/26/17; Trial Court Opinion, 7/30/18, at 5).
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ineffective assistance of counsel, a petitioner must show, by a preponderance
of the evidence, ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.” Id.
(citation omitted). “The petitioner must demonstrate: (1) the underlying
claim has arguable merit; (2) counsel lacked a reasonable strategic basis for
his action or inaction; and (3) but for the errors and omissions of counsel,
there is a reasonable probability that the outcome of the proceedings would
have been different.” Id. (citation omitted). “The petitioner bears the burden
of proving all three prongs of the test.” Id. (citation omitted). “A claim has
arguable merit where the factual averments, if accurate, could establish cause
for relief.” Id. at 1023 (citation omitted). “[T]he ultimate question of whether
facts rise to the level of arguable merit is a legal determination.” Id. (citation
omitted).
Instantly, Detective Falcone testified that “just after midnight” he
received a phone call from the CI and he immediately “relayed the flash
information what the guy was wearing that was armed with a handgun.” (N.T.
Trial, 3/11/15, at 7-8). Police Officer Kozlowski similarly testified that “in the
early morning hours . . . there was a radio call that came out for that location.”
(Id. at 14). After review, we agree with the PCRA court’s conclusion that
“[Gibson] failed to explain how the exact times of these calls, rather than an
estimate, renders the testimony of the officers incredible.” (Trial Ct. Op., at
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5). Because Gibson has failed to demonstrate that his underlying claim
regarding the impeachment value of the Report would have any probability of
making the outcome of the proceedings different, his ineffectiveness claim
merits no relief.
Gibson also maintains that trial and appellate counsel were ineffective
for failing to challenge the trial court’s deficient jury waiver colloquy, which
the court conducted only after finding him guilty. (See Gibson’s Brief, at 8,
10-11).
The relevant rule of criminal procedure provides:
In all cases, the defendant and the attorney for the
Commonwealth may waive a jury trial with approval by a judge of
the court in which the case is pending, and elect to have the judge
try the case without a jury. The judge shall ascertain from the
defendant whether this is a knowing and intelligent waiver, and
such colloquy shall appear on the record. The waiver shall be in
writing, made a part of the record, and signed by the defendant,
the attorney for the Commonwealth, the judge, and the
defendant’s attorney as a witness.
Pa.R.Crim.P. 620.
“The constitutional right to trial by jury, as with other constitutional
rights, will not lightly be deemed to have been waived. In fact, courts indulge
every reasonable presumption against waiver of such fundamental
constitutional rights.” Commonwealth v. Washington, 2019 WL 2146074,
at *2 (Pa. Super. filed May 16, 2019) (citation omitted). Nevertheless, a
criminal defendant may waive his right to a jury trial and proceed to trial
before a judge, provided his waiver is knowing and voluntary.” Id. (citation
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omitted). The defendant “must be aware of the essential ingredients inherent
to a jury trial,” which are “1) that the jury be chosen from members of the
community (i.e., a jury of one’s peers), 2) that the accused be allowed to
participate in the selection of the jury panel, and 3) that the verdict be
unanimous.” Id. (citation omitted). A reviewing court considers the totality
of the circumstances surrounding a defendant’s waiver to determine whether
it was voluntary. See id.
Here, the trial court found Gibson guilty after hearing extensive
testimony on the motion to suppress, which was incorporated by reference
into a waiver trial. (See N.T. Trial, 3/11/15, at 59-61). The court then
conducted a thorough, oral colloquy with Gibson, confirming his awareness of
his right to a jury trial by his peers and that the verdict would need to be
unanimous. (See id. at 61-63). The court expressly advised Gibson: “If you
still want a jury time, you can have one[.] . . . [I]f you want to exercise your
constitutional rights to a jury trial which is guaranteed by the United States
and Pennsylvania Constitution[,] not only would [defense] counsel help in
defending you against the Commonwealth’s presentation of its evidence in its
case in chief, he would help you in selecting those jurors.” (Id. at 61). After
the court was “thoroughly convinced” of the knowing and voluntary nature of
Gibson’s waiver, Gibson executed a written waiver colloquy, further
demonstrating his understanding of the rights he was waiving. (Id. at 64;
see also Written Jury Trial Waiver Colloquy, 3/11/15, at 1-4).
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Based upon the totality of these circumstances, Gibson has failed to
meet his burden of establishing that his underlying claim of a deficient jury
waiver colloquy has arguable merit. Accordingly, his claim of trial and
appellate counsel ineffectiveness on this basis fails.
Last, Gibson contends that at trial, the prosecutor engaged in
misconduct by knowingly presenting false testimony from police officers
regarding the time flash information was broadcast over police radio. (See
Gibson’s Brief, at 11-12). However, to be eligible for relief under the PCRA, a
petitioner must plead and prove by a preponderance of the evidence: “[t]hat
the allegation of error has not been previously litigated or waived.” 42 Pa.C.S.
§ 9543(a)(3). “[A]n issue is waived if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, on appeal or in a
prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b).
Accordingly, because Gibson could have raised his claim of prosecutorial
misconduct in his direct appeal to this Court but failed to do so, this issue is
waived. See Commonwealth v. Ford, 809 A.2d 325, 329 (Pa. 2002), cert.
denied, 540 U.S. 1150 (2004) (finding claims of prosecutorial misconduct
waived under the PCRA where appellant could have raised them on direct
appeal, but failed to do so.). Thus, we conclude that the PCRA court did not
err in dismissing Gibson’s PCRA petition without a hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/19
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Com. v. Gibson, B.
Combined Opinion