Opinion
J. S21024/17 No. 1138 WDA 2016
05-24-2017
COMMONWEALTH OF PENNSYLVANIA v. PAMELA ATKINSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order July 11, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002704-2012 BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Pamela Atkinson, appeals from the July 11, 2016 Order entered in the Court of Common Pleas of Erie County denying her first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm on the basis of the PCRA court's June 15, 2016 Opinion, which accompanied the court's Notice of Intent to Dismiss Without a Hearing Pursuant to Pa.R.Crim.P. 907.
The PCRA court incorporated the June 15, 2016 Opinion in its September 6, 2016 1925(a) Opinion by reference.
The relevant facts, as summarized by this Court in a prior appeal, are as follows:
Following a grand jury investigation into the distribution of OxyContin [OC] and other controlled substances in Erie County, Pennsylvania, Agent Alan McGill of the Office of Attorney General, Bureau of Narcotics Investigation and Drug Control learned that Appellant was involved in a drug distribution ring. Affidavit of Probable Cause, 6/18/12. Utilizing a confidential informant named Ryan Fatica, Officer McGill conducted controlled purchases of OxyContin [OC] from an individual name[d] Denise McConnell on July 7, 2010. Id. ; N.T., 9/24/13, at 35-42. Ms. McConnell was thereafter arrested and informed the police that Appellant and a woman known only as "Viola" were her drug suppliers and that Appellant transported the drugs from New York to Erie approximately once a month. Affidavit of Probable Cause, 6/18/12. An investigation into Appellant's medical records revealed that over several years, Appellant had received numerous OxyContin [OC] prescriptions, with a value of approximately seventy thousand ($70,000.00) dollars, from a New York City physician. Id.Commonwealth v. Atkinson , No. 193 WDA 2014, unpublished memorandum at 1 (Pa. Super. filed January 5, 2015).
On September 27, 2013, a jury convicted Appellant of Corrupt Organizations, Criminal Conspiracy, three counts of Possession of a Controlled Substance with Intent to Deliver, and Criminal Use of a Communication Facility. On December 16, 2013, the court sentenced Appellant to an aggregate term of 48 to 124 months' incarceration. Appellant filed a direct appeal and on January 5, 2015, this Court affirmed her Judgment of Sentence. Id.
18 Pa.C.S. § 911(b)(3); 18 Pa.C.S. § 903; 35 P.S. § 780-113(a)(30); and 18 Pa.C.S. § 7512(a), respectively.
On January 5, 2016, Appellant filed the instant timely pro se PCRA Petition, later amended by appointed counsel, alleging, inter alia, ineffective assistance of trial counsel.
January 5, 2016, is the date of the postmark on the envelope Appellant used to mail her Petition. Pursuant to the prisoner-mailbox rule, we consider January 5, 2016, to be the date Appellant filed this Petition. See Commonwealth v. Fransen , 986 A.2d 154, 155 n.5 (Pa. Super. 2009). --------
After providing Notice to Appellant pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed Appellant's Petition without a hearing on July 11, 2016. Appellant filed a timely Notice of Appeal.
Appellant presents the following issues for our review:
1. The PCRA court erred in denying [Appellant]'s PCRA Petition and/or conducting a hearing to take testimony where she argued that her trial counsel was ineffective in failing to subpoena records that would have shown that she did not have access to the drugs in question, and that the verdict in her case would have been "not guilty" as to all counts, had these records been produced.Appellant's Brief at 2 (some capitalization omitted).
2. The PCRA court erred in denying [Appellant]'s PCRA Petition and/or conducting a hearing to take testimony where she argued that her trial counsel was ineffective in failing to object to the Attorney General's evidence from a "distribution entity" for several pharmacies, when the evidence was not properly authenticated, and that the verdict in her case would have been "not guilty" as to all counts, had these records been produced.
We review the denial of a PCRA Petition to determine whether the record supports the PCRA court's findings and whether its Order is otherwise free of legal error. Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014). This Court grants great deference to the findings of the PCRA court if they are supported by the record. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa. Super. 2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012).
To be eligible for relief pursuant to the PCRA, Appellant must establish, inter alia, that his conviction or sentence resulted from one or more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant must also establish that the issues raised in the PCRA petition have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). There is no right to a PCRA hearing; a hearing is unnecessary where the PCRA court can determine from the record that there are no genuine issues of material fact. Commonwealth v. Jones , 942 A.2d 903, 906 (Pa. Super. 2008).
In the instant case, Appellant avers that trial counsel was ineffective for failing to obtain records from Purdue Pharma Patients Assistance Program ("Purdue") to support Appellant's testimony that she began receiving a reformulated version of OxyContin, OxyContin OP, in April 2010, thereby exonerating her from possessing the OxyContin OC pills introduced as evidence at trial. Appellant's Brief at 2. Appellant also avers that trial counsel was ineffective for failing to object to the introduction of evidence of a database printout from the National Drug Code Directory, which contradicted Appellant's testimony and demonstrated that the reformulated version, OxyContin OP, was not available until August 2010. Id. at 6. These claims lack merit.
The law presumes counsel has rendered effective assistance. Commonwealth v. Rivera , 10 A.3d 1276, 1279 (Pa. Super. 2010). The burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy this burden, Appellant must plead and prove by a preponderance of the evidence 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 challenged proceeding would have been different." Commonwealth v. Fulton , 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in rejection of the appellant's ineffective assistance of counsel claim. Commonwealth v. Jones , 811 A.2d 994, 1002 (Pa. 2002).
The Honorable John Garhart, sitting as the PCRA court, has authored a comprehensive and well-reasoned Opinion, citing to the record and relevant case law in addressing Appellant's ineffectiveness claims. The record supports the PCRA court's findings and its Order is otherwise free of legal error. We affirm on the basis of the PCRA court's July 15, 2016 Opinion, which concluded that the underlying claims are without merit because: (1) defense counsel did introduce select paperwork from Purdue and additional, unidentified paperwork would not have been exculpatory because Purdue only manufactures OxyContin; (2) Appellant's prescription records from Express Scripts, the pharmacy that actually distributed the medication to Appellant, reflected that Appellant had been prescribed the older version, OxyContin OC, in June, July, and August 2010; and (3) Appellant's claim regarding evidence from a "distribution entity" for several pharmacies had been raised and rejected on direct appeal. See Notice of Intent to Dismiss Without a Hearing Pursuant to Pa.R.CrimP. 907, 6/15/16, at 3-5.
The parties are instructed to attach a copy of the PCRA court's June 15, 2016 Opinion to all future filings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/24/2017
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