Commonwealth v. Carter, 2004 PA Super 420 (PA 10/29/2004), 912 MDA 2002.

• Decision Date: 29 October 2004
• Docket Number: No. 912 MDA 2002.,912 MDA 2002.
• Citation: 2004 PA Super 420
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH OF PENNSLVANIA v. ALFONSO F. CARTER, Appellant.

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2004 PA Super 420

COMMONWEALTH OF PENNSLVANIA v. ALFONSO F. CARTER, Appellant.

No. 912 MDA 2002.

Superior Court of Pennsylvania.

Filed: October 29, 2004.

Appeal from the PCRA Order May 29, 2002, In the Court of Common Pleas of Dauphin County, Criminal Division at No. 1683 CD 1998.

Before: HUDOCK, JOYCE, MUSMANNO, KLEIN, BENDER, BOWES, GANTMAN, MCCAFFERY, PANELLA, JJ.

OPINION BY BENDER, J.:

¶ 1 Alfonso F. Carter appeals from the May 29, 2002 order denying relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46. We reverse and remand for a new trial.

¶ 2 In a memorandum opinion this Court filed in this case on Appellant's direct appeal, we set forth the following factual recitation:

The incident occurred at approximately 6:15 p.m., on the evening of March 18, 1998. Officer Brenda Holmes of the Harrisburg City Police department was patrolling Hall Manor in Harrisburg. As Officer Holmes approached 44 Hall Manor, she observed a vehicle in the parking area. The vehicle was unattended with its keys in the ignition, its lights and windshield wipers on and its engine running. Being in a high crime area, Officer Holmes was concerned that someone may steal the unattended vehicle. Officer Holmes exited her patrol car and called dispatch to determine the vehicle's owner. At this time, a black male, later identified as Appellant, approached Officer Holmes. Appellant told the officer that he was the owner of the vehicle and that he was driving the car. Officer Holmes asked Appellant for some identification to confirm that the vehicle was Appellant's or if Appellant knew the owner of the vehicle. Appellant told Officer Holmes that he was "Kevin Watson" and gave a date of birth. At about this time, Officer Holmes learned that the vehicle was registered to a female. After running a check on "Kevin Watson" and learning that his actual date of birth did not correspond to the one given by Appellant, Officer Holmes became suspicious and called for backup. A black female approached Officer Holmes and Appellant. The female informed Officer Holmes of a second name for Appellant. Eventually, Appellant identified himself as "Alfonso Carter." Officer Holmes conducted a records check of "Alfonso Carter" and discovered a summary warrant.

Officer Holmes arrested Appellant and placed him in custody. At this time, Officer Holmes searched Appellant and discovered thirty-five empty blue zip-lock baggies in his jacket pocket. The officer then brought Appellant to the downtown police station. During the search at the police station, Officer Homes discovered a plastic bag that contained over sixty rocks of suspected crack cocaine. A field test was conducted on the "rocks", and they tested positive for cocaine.

Commonwealth v. Carter, No. 330 MDA 1999 unpublished memorandum at 2-3 (Pa. Super. filed October 22, 1999) (footnote omitted).¹

¶ 3 On January 12, 1999, following a nonjury trial, the trial court convicted Appellant of possession with the intent to manufacture or deliver a controlled substance, 35 Pa.C.S. § 780-113(a)(30). On the same date, the trial court sentenced Appellant to five to ten years' imprisonment. Appellant obtained new counsel and filed a timely direct appeal, but our Court affirmed his judgment of sentence. Id.² ¶ 4 On September 11, 2000, Appellant, acting pro se, filed a PCRA petition. The court appointed counsel, who filed an amended PCRA petition on October 11, 2000. On May 29, 2002, the trial court dismissed the petition without a hearing. Appellant filed a timely notice of appeal. The appeal was first presented to a three-judge panel of this Court, but we later granted reargument and en banc consideration. Commonwealth v. Carter, 2003 Pa. Super. LEXIS 4471 (filed December 5, 2003).

¶ 5 Appellant argues that his constitutional right to confrontation was violated when the trial court permitted the Commonwealth to admit into evidence a report, prepared by a Pennsylvania State Police crime laboratory, to prove the existence of cocaine from items seized from Appellant following his arrest. More specifically, Appellant argues that the trial court erred by permitting the crime lab manager, Larry L. Reigle, to provide the expert testimony with regard to the report in lieu of the testimony of the forensic scientist, Edward J. Kozlusky, who actually performed the mechanics of the test to determine the presence of cocaine in the items seized from Appellant. Pursuant to the lab manager's testimony, the trial court admitted, over defense counsel's objection, the report itself as substantive evidence.³ Appellant couches this issue in terms of appellate counsel's ineffectiveness for failing to raise the issue on direct appeal. He makes no claim with regard to trial counsel's ineffectiveness on this issue, nor could he since trial counsel objected and properly preserved the issue for appeal.⁴

¶ 6 Our standard of review in an appeal from an order which has dismissed a petition for relief under the PCRA is well settled:

This Court's standard of review from the grant or denial of post-conviction relief is limited to examining whether the lower court's determination is supported by the evidence of record and whether it is free of legal error.

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997). Moreover,

To be entitled to relief under the PCRA, a petitioner must plead and prove by a preponderance of the evidence that the conviction or sentence arose from one or more of the errors enumerated in 42 Pa.C.S.A. § 9543(a)(2), and that the issues raised in the petition have not been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). An allegation of error 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.A. § 9544(b).

Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002). "A petitioner can avoid a finding of waiver under the PCRA by making an adequate and properly layered claim of ineffective assistance of counsel at his first available opportunity to do so." Commonwealth v. Rivera, 816 A.2d 282, 287 (Pa. Super. 2003) (quoting Commonwealth v. Abdul-Salaam, 808 A.2d 558, 560, n.3 (Pa. 2001)).

¶ 7 Since Appellant claims that his appellate counsel was ineffective for failing to raise the issue pertaining to the lab report on direct appeal, we recognize the following with regard to ineffectiveness claims:

To prevail on a claim alleging counsel's ineffectiveness under the PCRA, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without any reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness, i.e., there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different.

Commonwealth v. Malone, 823 A.2d 931, 934 (Pa. Super. 2003) (citation omitted). With these rules in mind, we proceed to review Appellant's claim that appellate counsel was ineffective for failing to raise the issue of trial court error in admitting the lab report. The underlying standard of review with regard to a trial court's evidentiary rulings is as follows:

The admissibility of evidence is solely within the discretion of the trial court and will be reversed only if the trial court has abused its discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record.

Commonwealth v. Herb, 852 A.2d 356, 363 (Pa. Super. 2004) (citations omitted).

¶ 8 The lab report at issue indicated the presence of 11.6 grams of cocaine from the material seized from Appellant. The forensic scientist who conducted the testing on the material and prepared the report, Mr. Kozlusky, was not available to testify. Thus, the Commonwealth called the lab manager, Mr. Reigle, to testify about the contents of the report. Over trial counsel's objection, the trial court admitted the actual report itself as substantive evidence. Appellant claims that the trial court erred in overruling trial counsel's objection (and that appellate counsel was ineffective for failing to raise this issue on direct appeal), because the lab report constituted hearsay evidence that did not qualify for any exceptions to the hearsay rule. The trial court agreed that the report constituted hearsay but determined it was, nevertheless, admissible under the hearsay exception provided in Pa.R.E. 803(6), which exception permits admission of records of regularly conducted activity, commonly referred to as the "business records exception" to the hearsay rule.

¶ 9 "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Pa.R.E. 801 ("Definitions"). "A `statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." Id. The "declarant" is the "person who makes a statement." Id. "Hearsay is generally inadmissible at trial unless it falls into an exception to the hearsay rule." Commonwealth v. McEnany, 732 A.2d 1263, 1272 (Pa. Super. 1999). See also Pa.R.E. 802 ("Hearsay is not admissible except as provided by these rules [of evidence], by other rules prescribed by the Pennsylvania Supreme Court, or by statute."). "The rationale for the hearsay rule is that hearsay is too untrustworthy to be considered by the trier of fact. Exceptions have been fashioned to accommodate certain classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit exception to the hearsay rule." Commonwealth v. Bean, 677 A.2d 842, 844 (Pa....