Commonwealth v. McCalvin COMMONWEALTH OF PENNSYLVANIA v. PURNELL McCALVIN, Defendant

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1 COMMONWEALTH OF PENNSYLVANIA v. PURNELL McCALVIN, Defendant 411 PCRA Relief: Evidentiary Hearing; Ineffective Assistance of Counsel; Criminal Conspiracy with a government agent. 1. Pennsylvania Rule of Criminal Procedure 907(1) requires that a judge promptly review the Defendant s petition, any answer by the Commonwealth, and other matters of record relating to the Defendant s PCRA claims. If the court concludes that there are no genuine issues concerning material fact, that the Defendant is not entitled to post conviction relief, and that no purpose would be served by further proceedings, the Defendant has no right to an evidentiary hearing. 2. In order to prevail on a claim of ineffective assistance of counsel, a Defendant must rebut the presumption of professional competence by demonstrating that: (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel s ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different." 3. Counsel is presumed to have been effective and the burden of proving counsel s ineffectiveness rests on the Defendant. 4. Here, in denying the Defendant s request for PCRA relief without an evidentiary hearing, the court found the issues raised to be meritless, based upon the Superior Court having previously ruled upon the issue in the Defendant s Direct Appeal. COMMONWEALTH OF PENNSYLVANIA v. PURNELL McCALVIN, DEFEN- DANT, IN THE COURT OF COMMON PLEAS OF BERKS COUNTY, PENNSYLVANIA, CRIMINAL DIVISION No Heather Adams, Esquire, Deputy Attorney General, Attorney for the Commonwealth Francis M. Walsh, Esquire, Attorney for the Defendant MEMORANDUM OPINION, LIEBERMAN, S.B. JUDGE, August 8, 2012 The Defendant appeals from the dismissal of his PCRA petition, which lacked merit. On July 25, 2012, this court directed the Defendant to file a Concise Statement of Errors Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). The Defendant complied with this court s Order on August 6, In his appeal, the Defendant alleges the following errors: 1. Did the PCRA Court err in dismissing said petition without a hearing where Appellant alleged that trial counsel was ineffective for failure to specifically argue during his oral motion for judgment of acquittal that the Appellant would be prejudiced by the amendment of the Bills of Information because a defendant cannot conspire with only one other person if that person is a government agent?

2 412 Vol. 104 (Concise Statement of Errors Complained of on Appeal, 8/6/12). This court thoroughly explained in its Order and Notice of Intent to Dismiss why the Defendant s PCRA petition was lacking in merit. Therefore, we incorporate that document, attached hereto as Exhibit A, adopt it as our opinion in this matter, and respectfully request that the Defendant s appeal be denied based upon the Exhibit A ORDER AND NOTICE OF INTENT TO DISMISS AND NOW, this 25 th day of May, 2012, notice is hereby given by the undersigned, the Honorable Stephen B. Lieberman, of his intention to dismiss the Defendant s Petition for Relief under the Post Conviction Relief Act (hereinafter PCRA ), 42 Pa. C.S.A et seq., pursuant to Pennsylvania Rule of Criminal Procedure 907(1). After a careful review of the petition and the record, this court concludes that there are no genuine issues concerning material fact, that the Defendant has presented no meritorious issues entitling him to post conviction relief, and that no purpose would be served by any further proceedings in this matter. FACTUAL AND PROCEDURAL HISTORY Following a jury trial, the Defendant was convicted on March 11, 2009 of possession with the intent to deliver a controlled substance 1 and criminal conspiracy. 2 Subsequently, he was sentenced pursuant to 18 Pa.C.S.A. 7508(3)(iii) to a mandatory minimum sentence of seven to fifteen years of incarceration. The Defendant filed a timely direct appeal, which was dismissed by the Pennsylvania Superior Court because counsel failed to file a brief. On November 1, 2010, current counsel filed a PCRA petition seeking to have the Defendant s direct appellate rights reinstated. This court granted the Defendant s petition on November 5, Thereafter, on November 19, 2010, the Defendant filed a direct appeal to Pennsylvania Superior Court, which affirmed his judgment of sentence on September 12, On March 12, 2012, the Defendant filed the instant PCRA petition, which is considered his first because it was filed after an appeal nunc pro tunc. See Commonwealth v. O Bidos, 849 A.2d 243, 252 (Pa. Super. 2004). In his PCRA petition, the Defendant argues that trial counsel was ineffective for failing to specifically argue during his Motion for Judgment of Acquittal that the Petitioner would be prejudiced by the amendment of the Bills of Information 1 35 P.S (a)(30) 2 18 Pa.C.S.A. 903

3 because a defendant cannot conspire with only one other person if that person is a government informant. PCRA Petition at 4. In addition, the Defendant contends that although the Superior Court stated in its September 12, 2011 Opinion that this issue had no merit, he is not precluded from raising the issue because the opinion was dicta... and [t]he Superior Court in its dicta misconstrued the argument as a factual impossibility argument defense... when it [sic] fact it was a failure to establish an element of this crime defense, i.e., 2 or more people making an agreement for a criminal purpose. PCRA Petition at 5. Following a thorough review of the record, it is the opinion of this court that the Defendant s petition is lacking in merit. APPLICABLE LAW Disposition of the Defendant s petition is governed by the PCRA and the decisional law that flows from the PCRA and its predecessor, the Post Conviction Hearing Act. The PCRA was enacted as a means of providing collateral relief for persons who have either been convicted of crimes they did not commit, or persons who are serving illegal sentences. 42 Pa. C.S.A. 9543(a)(2). Pennsylvania law provides that in order to qualify for relief under the PCRA, the defendant must plead and prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated errors or defects found listed in 42 Pa. C.S.A. 9543(a) (2). The defendant is also required to establish that the issues raised in his PCRA petition have not been previously litigated or waived. 42 Pa. C.S.A. 9543(a)(3), 9544; see also Commonwealth v. Zook, 887 A.2d 1218, 1227 (Pa. 2005). The standard of review of a PCRA court s grant or denial of relief is limited to examining whether the trial court s determination is supported by the evidence of record and whether it is free of legal error. Commonwealth v. Owens, 750 A.2d 872 (Pa. Super. 2000), see also, Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717 (Pa. 2000); Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (Pa. 1999). Pennsylvania Rule of Criminal Procedure 907(1) requires that a judge promptly review the Defendant s petition, any answer by the Commonwealth, and other matters of record relating to the Defendant s PCRA claims. If the court concludes that there are no genuine issues concerning material fact, that the Defendant is not entitled to post conviction relief, and that no purpose would be served by further proceedings, the Defendant has no right to an evidentiary hearing. See Rule 907(1). Here, the Defendant has no right to an evidentiary hearing on his PCRA petition because his claims could not possibly entitle him to relief. See Commonwealth v. Johnson, 841 A.2d 136, 140 (Pa Super. 2003). I. INEFFECTIVE ASSISTANCE OF COUNSEL The Defendant argues that trial counsel was ineffective for failing to specifically argue during his Motion for Judgment of Acquittal that the Petitioner would be prejudiced by the amendment of the Bills of Information because a defendant 413

4 414 Vol. 104 cannot conspire with only one other person if that person is a government informant. PCRA Petition at 4. When a defendant alleges ineffective assistance of counsel under 9543(a)(2)(ii) of the PCRA, he is eligible for post conviction relief only where counsel s act or omission so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place. The same standard governs ineffectiveness claims regardless of whether the defendant is represented by privately retained counsel, court appointed counsel, or by a member of the public defender s office. Commonwealth v. Smith, 467 A.2d 1307 (Pa. Super. 1983). Counsel is presumed to have been effective and the burden of proving counsel s ineffectiveness rests on the appellant. Commonwealth v. Cox, 556 Pa. 368, 382, 728 A.2d 923, 929 (Pa. 1999). In order to prevail on a claim of ineffective assistance of counsel, a defendant must rebut the presumption of professional competence by demonstrating that: (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel s ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005). In the instant case, the Defendant argued on direct appeal that because his co-conspirator was working as an informant for the Commonwealth from June 13, 2007 through August of 2007, the Defendant could not be guilty of conspiracy. As a result, the Defendant argues that trial counsel was ineffective for failing to specifically argue during his Motion for Judgment of Acquittal that the Petitioner would be prejudiced by the amendment of the Bills of Information because a defendant cannot conspire with only one other person if that person is a government informant. PCRA Petition at 4. In its Memorandum Opinion, the Superior Court stated: In support of his claim that a person alone cannot engage in a conspiracy with a government agent, Appellant cites, without explanation or argument, two federal district court cases, United States v. Conn, 907 F. Supp. 335 (M.D. Pa. 1995) aff d, 68 F.3d 457 (3D Cir. 1995) and United States v. Carter, 966 F.Supp. 335 (E.D. Pa. 1977). Decisions by federal courts inferior to the United States Supreme Court are not precedential in any court within the Commonwealth judicial system. Commonwealth v. Santiago, 855 A.2d 682, 693 n.10 (Pa. 2004). Further, both cases interpret the federal conspiracy statutes. Appellant does not explain how the decision of a federal district court interpreting federal conspiracy law is relevant to this Court s interpretation of Pennsylvania law. To the contrary, this Court has held that factual impossibility is not a defense to conspiracy. Commonwealth v. Timer, 609 A.2d 572, (Pa. Super. 1992). In Timer, the appellant and two other individuals arranged to purchase drugs from an undercover narcotics officer posing as a drug dealer. Timer, supra. In discussing the Appellant s claim that the evidence was insufficient to sustain his conviction for conspiracy because the Commonwealth failed to disprove his defense of impossibility, this Court stated:

5 415 The evil against which the conspiracy law is aimed is the agreement of two or more persons to act in concert for a criminal purpose. The fact that the criminal purpose would not be accomplished as a factual matter does not bar nor diminish the capacity and the intent to agree to accomplish the criminal object. The police officer s knowledge that he would not relinquish the drugs to appellant does not present a defense to the formation of the conspiratorial agreement and the overt steps the conspirators took toward its accomplishment. Id. Thus, Appellant has not demonstrated that he was prejudiced by the amendment to the criminal information because impossibility is not a defense to conspiracy under Pennsylvania law. Superior Court Memorandum, 1897 MDA 2010, filed September 12, This court believes that the Defendant s attempted differentiation of factual impossibility from failure to establish an element of the crime of conspiracy is a distinction without a difference. Therefore, based upon the reasoning contained in the Pennsylvania Superior Court s September 12, 2011 Opinion, we find that the Defendant s PCRA petition is without merit, and that no purpose would be served by any further proceedings in this matter. The Defendant shall have twenty (20) days from the date of this Notice of Intent to Dismiss to respond to the proposed dismissal. If this court receives no response within the twenty-day time period, an Order dismissing the Petition for Post Conviction Collateral Relief will be filed with the Clerk of Courts. BY THE COURT: Stephen B. Lieberman, J.