Opinion
No. 812 WDA 2021
04-06-2022
COMMONWEALTH of Pennsylvania v. Patrick Dale MORLEY, Appellant
MEMORANDUM BY LAZARUS, J.:
Patrick Dale Morley appeals, pro se , from the order, entered in the Court of Common Pleas of Erie County, dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA). See 42 Pa.C.S.A. §§ 9541 - 9546. Upon review, we affirm.
We previously adopted the trial court's factual summary, as follows:
On June 9, 2018, [Morley] was driving a 2004 Audi A4 registered to his girlfriend, Loretta Weber. At the intersection of Route 8 and Kuhl Road in Greene Township, Pennsylvania, [Morley] rear-ended a 2005 Dodge Ram 1500, causing the truck to roll over. Immediately after the accident, [Morley] exited the 2004 Audi A4, reached in the back seat and grabbed a briefcase, and fled the scene on foot. A cell phone in [Morley]’s name was recovered from the vehicle[,] as well as clothing belonging to [Morley]. The briefcase was recovered from behind a nearby garage. Inside the briefcase were drugs, including multiple bags of marijuana and a marijuana blunt, bags of cocaine, and LSD; drug paraphernalia including a digital scale, glass pipe, and plastic baggies; a switchblade knife; receipts for repairs to the 2004 Audi A4 bearing [Morley]’s name; two American Association of Retired Persons (AARP) cards bearing [Morley]’s name; a doctor's appointment note for [Morley]; and [Morley]’s expired driver's license. At the time of the accident, [Morley]’s driver's license was suspended. Several weeks later, [Morley] was found at a hotel room rented in his friend's name[,] where he was arrested and charged.
On November 9, 2018, following a two-day jury trial, [Morley] was convicted of: three counts of possession with intent to deliver[, see 35 P.S. § 780-113(a)(30) ]; three counts of possession[, see id. at (a)(16)]; one count of possession of small amount of marijuana ... [, see id. at § (a)(31)(i)]; possession of drug paraphernalia[, see id. at § (a)(32)]; prohibited offensive weapons[, see 18 Pa.C.S.A. § 908(a) ]; accidents involving damage to attended vehicle or property[, see 75 Pa.C.S.A. § 3743(a) ]; drivers required to be licensed[, see id. at § 1501(a)]; driving while operating privilege is suspended or revoked following ARD/DUI-related offense[, see id. at § 1543(b)(1)]; following too closely[, see id. at § 3310(a)]; driving at safe speed[, see id. at § 3361]; careless driving[, see id. at § 3714(a)]; duty to give information and render aid[, see id. at § 3744]; and immediate notice of accident to police department[, see id. at § 3746(a)(1)].
On December 21, 2018, [Morley] was sentenced to an aggregate period of 87 [to] 174 months incarceration, followed by a probationary period.
Commonwealth v. Morley , 227 A.3d 407 (Pa. Super. 2020) (Table). Morley filed a timely notice of appeal and this Court affirmed his judgment of sentence. See id.
On October 2, 2020, Morley filed the instant, timely, pro se PCRA petition, his first. The PCRA court appointed counsel. Morley filed a pro se motion for a Grazier hearing and, thereafter, the PCRA court granted Morley's motion and permitted him to proceed pro se .
Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1988).
Subsequently, on April 7, 2021, the PCRA issued notice of its intent to dismiss Morley's PCRA petition pursuant to Pa.R.Crim.P. 907. Morley requested additional time to file objections, which the PCRA court granted, and on May 26, 2021, Morley filed pro se objections to the Rule 907 notice. On June 7, 2021, the PCRA court issued an order dismissing Morley's pro se PCRA petition. Morley filed a timely pro se notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Morley raises the following claim for our review: "Did the PCRA court err in dismissing [Morley]’s petition without a hearing when [Morley] raised claims with merit and which[,] if proven[,] would entitle [Morley] to relief?" Brief for Appellant, at v.
We review an order [dismissing] a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
Morley raises five sub-issues, all of which claim his trial counsel rendered ineffective assistance of counsel. Counsel is presumed to be effective, and "the burden of demonstrating ineffectiveness rests on [the] appellant." Commonwealth v. Rivera , 10 A.3d 1276, 1279 (Pa. Super. 2010).
To satisfy this burden, an 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. Failure to satisfy any prong of the test will result in rejection of the appellant's ineffective assistance of counsel claim.
Commonwealth v. Holt , 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal citations omitted).
For ease of disposition, we summarize Morley's sub-issues and address them together. First, Morley contends that his trial counsel rendered ineffective assistance by failing to object to testimony from Courtney Cochran. Brief for Appellant, at 2-3. Second, Morley claims that his trial counsel failed to object to "the perjured testimony of [ ] Trooper Ryan Tyler." Id. Third, Morley argues that his trial counsel rendered ineffective assistance by failing to call an expert witness. Id. at 3-4. Fourth, Morley argues that his trial counsel rendered ineffective assistance by failing to object to the "flight" jury instruction. Id. at 4-5. Fifth, Morley argues that trial counsel failed to object to the "constructive possession" jury instruction as it "exceeded the legal definition provided by [the] legislature[,]" Morley was "not caught with any substances at all[,]" Morley did not own the Audi A4, and the drugs in the briefcase were not his. Id. at 5-6.
Preliminarily, Morley has failed to develop any of these claims in his appellate brief. Indeed, his entire argument section is 5 pages in length and contains no citations to the record, and only boilerplate citations to case law. See Brief for Appellant, at 2-6; see also Pa.R.A.P. 2119(a) (requiring "discussion and citation of authorities as are deemed pertinent"); Commonwealth v. Johnson , 985 A.2d 915, 924 (Pa. 2009) ("[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority[,] or fails to develop the issue is any other meaningful fashion capable of review, that claim is waived."). Accordingly, all of Morley's claims are waived.
Even if Morley had not waived these claims, we would afford him no relief for the reasons stated in the PCRA court's notice of intent to dismiss.
Regarding Morley's challenge to Trooper Tyler's alleged perjured testimony, the PCRA court, likewise, was unable to discern which statements Morley was challenging in his PCRA petition. See Rule 907 Notice of Intent to Dismiss, 4/7/21, at 4. Thus, this claim is waived for this reason as well.
Regarding trial counsel's alleged ineffectiveness to call an expert witness, the PCRA court determined that Morley had failed to satisfy his burden of demonstrating that an expert existed and was willing and able to testify. Id. at 6; see id. (PCRA court also concluding Morley failed to establish how absence of testimony was prejudicial); Commonwealth v. Chmiel , 30 A.3d 1111, 1143 ("The mere failure to obtain an expert witness is not ineffectiveness. Appellant must demonstrate that an expert witness was available who would have offered testimony designed to advance appellant's cause.") (citation omitted).
Regarding trial counsel's alleged ineffectiveness at failing to object to Cochran's testimony, the PCRA court determined that this claim lacked merit. In particular, the PCRA court concluded that trial counsel had objected to Cochran's testimony, but the court ultimately overruled trial counsel's objection after hearing argument. See Rule 907 Notice of Intent to Dismiss, 4/7/21, at 7; see also N.T. Jury Trial Day 2, 11/8/18, at 7-10.
Regarding trial counsel's alleged ineffectiveness for failing to object to jury instructions, Pennsylvania courts are generally afforded "broad discretion in phrasing [jury] instructions, and may choose [their] own wording so long as the law is clearly adequately and accurately presented to the jury for its consideration. Only where there is an abuse of discretion or an inaccurate statement of law is there reversible error." Commonwealth v. Antidormi , 84 A.3d 738, 754 (Pa. Super. 2014).
This Court has previously stated that flight instructions are proper when "a person commits a crime, knows that he is wanted therefor, and flees or conceals himself." Commonwealth v. Clark , 961 A.2d 80, 92 (Pa. 2008) (citation omitted). "[S]uch conduct is evidence of consciousness of guilt, and may form the basis of a conviction in connection with other proof from which guilt may be inferred." Id.
Instantly, the PCRA court determined that the "flight" instruction was appropriate because witness testimony placed Morley at the scene of the accident, grabbing the suitcase, and fleeing the accident. See Rule 907 Notice of Intent to Dismiss, 4/7/21, at 8-10; see also N.T. Jury Trial Day 1, 11/7/18, at 94-95, 106-07, 112 (testimony Morley grabbed suitcase before fleeing scene of accident he caused); id. at 138-40 (Morley did not return home for two weeks after accident); id. Day 2, 11/8/18, at 59-61 (Morley ultimately located in hotel room rented in Cochran's name). Our review confirms the PCRA court's determination and, thus, Morley has failed to demonstrate that this claim has arguable merit, and trial counsel was not ineffective for failing to object. See Clark , supra ; Holt , supra .
With regard to the constructive possession jury instruction, Morley claims that the jury instruction exceeded the definition provided by the legislature. At trial, the trial counsel issued the following instruction:
Morley also asserts that he was not in possession of the Audi A4, or the narcotics and paraphernalia and, therefore, the constructive possession jury instruction was inappropriate. Brief for Appellant, at 5-6. We do not address these claims, because Morley's challenge to the sufficiency of the evidence has already been litigated on his direct appeal. In particular, this Court determined that the evidence was sufficient to show Morley was in "constructive possession of the narcotics and paraphernalia recovered from the briefcase located near the motor vehicle following the accident that occurred on June 9, 2018." See Morley , supra . Therefore, the jury instruction was proper where sufficient evidence existed. See Commonwealth v. Hall , 199 A.3d 954, 963 (Pa. Super. 2018) (trial court properly gives jury instruction where evidentiary basis for "element, offense, or defense that is the subject of the instruction" exists).
Now, to possess a controlled substance you must have a power to control and the intent to control. You'll note that in the definition it doesn't say he had to be physically touched or holding it at the time you get caught with the substance. All right? Because under our law, we are in possession of a lot of items even though we're not holding on to them. As we sit here today, my office is next door. I have items on my desk. I'm in possession of those items as we speak. I'm not over in my room, office, I'm not holding onto them, but I have the power to control and intent to control those items, and that ... constitutes possession.
N.T. Jury Trial Day 2, 11/8/18, at 181-82.
Pennsylvania's Suggested Standard Jury Instruction provides, in relevant part, as follows:
16.02(b)A CONTROLLED SUBSTANCE, "POSSESSION" DEFINED
* * *
4. A person can be guilty of possessing an item even when he or she is not holding it, touching it, or in the same area as the item. That type of possession is what the law calls constructive possession. For there to be constructive possession, it must be proved beyond a reasonable doubt that the individual had both the intent to control the item and the power to control the item.
Pa. SSJI (Crim) § 16.02(b)A.
Our review reveals that, while not a verbatim recitation of the suggested jury instruction, the trial court's instruction is not legally erroneous. See Antidormi , supra . Moreover, as noted above, we previously determined that sufficient evidence existed to convict Morley of constructively possessing the drugs and paraphernalia. See Morley , supra ; see also Hall , supra . Thus, it logically follows that the trial court did not abuse its discretion in issuing the instruction. Accordingly, Morley's claim lacks arguable merit, and trial counsel was not ineffective for failing to object. See Antidormi , supra ; Holt , supra .
Our review of the record confirms the determinations and conclusions of the PCRA court and, therefore, we affirm. See Ford , supra .
Order affirmed.