J-S62027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. STEPHEN MAURICE BARRY-GIBBONS Appellant No. 543 WDA 2015

Appeal from the PCRA Order March 10, 2015 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000405-2007

BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J. * MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 19, 2015 Appellant Stephen Maurice Barry-Gibbons appeals fr om the order of the Erie County Court of Common Pleas denying his p etition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq . We affirm. This Court previously set forth the relevant facts as follows:

On January 3, 2007, Lieutenant Michael Nolan of the Erie Police Department applied for and was granted a sea rch warrant for Appellant’s residence at 1015 East 5th Street in Erie. Lt. Nolan’s affidavit of probable cause r elied heavily on information provided by a confidential informant, who[m] he deemed reliable based on the f act that the confidential informant previously provided information leading to fifteen felony drug arrests and fourteen convictions. Within the two weeks prior t o the issuance of the search warrant, the confidential in formant

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* Retired Senior Judge assigned to the Superior Cour t.J-S62027-15

- 2 - made a controlled buy from Appellant at a location other than the residence on East 5th Street. Thereafter, the confidential informant informed Lt. Nolan that Appe llant was now dealing drugs out of his current residence at 1015 East 5th Street. The confidential informant also t old Lt. Nolan that within the past forty-eight hours, he ha d been in Appellant’s East 5th Street residence and observ ed Appellant in possession of a baggie of crack cocain e and [a] small handgun. Lt. Nolan had the confidential informant conduct a controlled buy of crack cocaine from Appellant within twenty-four hours prior to the iss uance of the search warrant. During the controlled buy, the confidential informant observed additional amounts of crack cocaine inside Appellant’s residence. Based o n the above information, Lt. Nolan obtained a search warr ant for Appellant’s residence as well as his person. Prior to executing the search warrant, several othe r officers set up surveillance of Appellant’s residen ce on East 5th Street at around 8:00 a.m. Lt. Nolan joined th e surveillance team at approximately 10:00 a.m. and remained there until approximately 12:30 p.m. Duri ng that time, Lt. Nolan did not observe Appellant ente ring the apartment, though he did see Appellant exit the apartment. Lt. Nolan testified that he did not exe cute the search warrant during that time for safety reasons. Specifically, Lt. Nolan believed Appellant was also under investigation for a drug-related homicide by a diff erent police department. Accordingly, Lt. Nolan waited for Appellant to exit the residence to execute the search warrant. Thereafte r, police officers stopped the vehicle in which Appell ant was a passenger and conducted a search of his person, fin ding a small baggie of crack-cocaine and a digital scale c overed in crack-cocaine residue. A search of Appellant’s res idence led to the discovery, in a bedroom, of an estimate for auto work, as well as a lease listing Appellant as a ten ant. In that same bedroom, police discovered various drugs as well as a loaded firearm. Prior to trial, Appellant filed a motion to suppres s the evidence discovered on his person and in the reside nce. In his motion, Appellant argued that the search warran t was not supported by probable cause, and further that t heJ-S62027-15

- 3 - police exceeded the scope of the search warrant by stopping the vehicle in order to search his person. The trial court denied the motion to suppress. Followi ng a bench trial, Appellant was found guilty of three co unts of possession of a controlled substance, three counts of possession with intent to deliver, possession of dr ug paraphernalia, and two counts of criminal conspirac y. On January 11, 2010, Appellant was sentenced to an aggregate term of four to fifteen years’ incarcerat ion. Commonwealth v. Barry- Gibbons , 173 WDA 2010, at *2-4 (Pa. Super. 12/21/2010) (internal citations omitted). This Cou rt affirmed Appellant’s judgment of sentence on December 21, 2010. Appellant filed a PCRA petition seeking reinstatem ent of his right to appeal to the Supreme Court of Pennsylvania nunc pr o tunc, which the PCRA court granted. Appellant filed a petition for allo wance of appeal, which the Supreme Court of Pennsylvania denied on March 14, 2 013. From April 11, 2013 through July 15, 2013, Appella nt sent pro se filings to the trial court, including a motion for extraordinary relief, a writ of habeas corpus, and a “motion for Post Conviction Re lief Act Discovery Rule 902(e)(1), Pa.R.Crim.Proc.,” which were sent to his attorney. 1 On June 3, 2014, Appellant filed a motion entitled “request fo r a Grazier 2 hearing and in accordance with Faretta v. California .” 3 The PCRA court appointed

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1 The trial court states Appellant also filed a moti on for extraordinary relief on April 11, 2013. However, a copy of this documen t is not contained in the certified record, and the docket does not reflect a n April 11, 2013 filing.

2 Commonwealth v. Grazier , 713 A.2d 81 (Pa.1998).

3 422 U.S. 806, 95 S.Ct. 2525 (2012).J-S62027-15

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counsel. On October 10, 2014, counsel filed a supp lemental PCRA petition. On December 22, 2014, the PCRA court held an eviden tiary hearing. On March 10, 2015, the court denied the PCRA petition. Appellant filed a timely notice of appeal. On Apr il 22, 2015, Appellant filed a concise statement of errors complained of o n appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). O n April 23, 2015, the trial court issued its Rule 1925(a) opinion incorpo rating its March 10, 2015 opinion and final order. Appellant raises the following issue on appeal:

I. Did the [trial court] commit an abuse of discretion and reversible error by failing to grant [Appellant] a new trial due to ineffective assistance of trial counsel? Appellant’s Brief at 1. Our standard of review from the denial of post-conv iction relief “is limited to examining whether the PCRA court’s deter mination is supported by the evidence of record and whether it is free of le gal error.” Commonwealth v. Ousley , 21 A.3d 1238, 1242 (Pa.Super.2011) (citing Commonwealth v. Morales , 701 A.2d 516, 520 (Pa.1997)). For ineffective assistance of counsel claims, the p etitioner must establish: “(1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3 ) the petitioner suffered actual prejudice as a result.” Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa.2014) (quoting Commonwealth v. Ali , 10 A.3d 282, 291 (Pa.2010)). “[C]ounsel is presumed to be effective and the burd en of demonstratingJ-S62027-15

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ineffectiveness rests on appellant.” Ousley , 21 A.3d at 1244 (quoting Commonwealth v. Rivera , 10 A.3d 1276, 1279 (Pa.Super.2010)). “The failure to prove any one of the three [ineffectiven ess] prongs results in the failure of petitioner’s claim.” Id. (quoting Rivera , 10 A.3d at 1279). “To demonstrate prejudice, the petitioner must show tha t ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.’” Spotz , 84 A.3d at 312 (quoting Commonwealth v. King , 57 A.3d 607, 613 (Pa.2012)). “[A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.” Id. (quoting Commonwealth v. Ali , 10 A.3d 282, 291 (Pa.2014)). Appellant first maintains pre-trial counsel 4 was ineffective for failing to present his co-defendant Javon Franklin as a witnes s at the pre-trial suppression hearing. Appellant’s Brief at 4. To establish an ineffective assistance of counsel c laim for failure to call a witness, the petitioner must prove: “(1) the wit ness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the abs ence of the testimony of the witness was so prejudicial as to have denied the de fendant a fair trial.”

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4 Appellant was represented by different counsel at the pre-trial and trial phases of his prosecution.J-S62027-15

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Commonwealth v. Johnson , 966 A.2d 523, 536 (Pa.2009) (quoting Commonwealth v. Washington , 927 A.2d 586, 599 (Pa.2007)). At the evidentiary hearing, Appellant and Stephanie Barry testified that they asked Appellant’s counsel to subpoena Franklin for the pre-trial hearing, and counsel agreed to do so. N.T., 12/22/ 2014, at 5-7, 12-14. Appellant, Barry, and Franklin stated that Franklin would have testified at the suppression hearing that the drugs found during the search were his drugs, not Appellant’s. Id. 7-8, 13-14, 27. Appellant’s counsel, however, stated that he did not inform anyone that he would call Franklin and stated Franklin’s testimony was irrelevant for pre-trial p urposes. Id. at 42-43. The trial court credited Appellant’s counsel, inclu ding his testimony that he did not inform Appellant that he would subp oena Franklin. Further, the trial court found counsel had a reasonable basi s for not calling Franklin, i.e., because his proffered testimony had no relevancy at the

suppression hearing on [Appellant’s] challenge to t he search warrant (i.e., four corners of the affidavit ) or the traffic stop. Rather, Franklin’s testimony involve d [Appellant’s] defense of lack of culpability, which was a trial matter and not cognizable in a suppression he aring. Opinion and Final Order, 3/10/2015, at 5. The tria l court further found Appellant was not prejudiced because Franklin testi fied at trial. The trial court did not err in its analysis, and Appellant’s counsel ineffectiveness claim fails.J-S62027-15

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Appellant next claims trial counsel was ineffective for failing to interview Appellant until the day before trial, fai ling to interview trial witnesses prior to trial, failing to request that t he trial judge recuse himself, and failing to investigate or challenge a discrepan cy in the weight of the drugs at issue. Appellant’s Brief at 5. Appellant maintains the PCRA court erred in accepti ng trial counsel’s testimony that he spoke with Appellant twice before trial and that he spoke with trial witnesses, Barry and Franklin, prior to trial. He claims counsel’s testimony was contradicted by the testimony of Appe llant, Barry and Franklin. Appellant’s Brief at 5. The PCRA court found:

At the evidentiary hearing, Attorney Williams credi bly testified that he spoke with [Appellant] on at leas t two prior occasions before trial. Furthermore, Attorne y Williams stated that he spoke with both Stephanie B arry and Javon Franklin several times before trial, and both witnesses testified consistently with what they tol d him during their pre-trial discussions. [Appellant’s] claims that Attorney Williams failed to meet with him or speak with his witnesses are meritless. Opinion and Final Order at 6. We are bound by the PCRA court’s credibility determinations, which are supported by the record. See, e.g., Spotz , 18 A.3d at 259. The PCRA court did not err in finding counsel was not ineffective. Appellant next maintains trial counsel was ineffec tive for failing to seek recusal of the trial judge, who presided over the s uppression hearing and the bench trial. Appellant’s Brief at 5-6. The Suprem e Court of Pennsylvania has found a trial judge must recuse only if a defen dant demonstratesJ-S62027-15

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“substantial doubt as to the judge’s ability to pre side impartially.” Commonwealth v. Reyes , 870 A.2d 888, 897-98 (Pa.2005). It further noted that recusal is unnecessary merely because a trial judge was involved in a pre-trial proceeding. Id. The trial court found:

[T]he record is devoid of any evidence that [Appell ant] desired [the trial c]ourt’s recusal or that the [c] ourt was unable to preside impartially during the trial. At the evidentiary hearing, [counsel] testified that he sp oke with [Appellant] before trial and at no time did [Appell ant] request a recusal or jury trial. [Counsel] advised [Appellant] that a non-jury trial before [the trial c]ourt was the better option, and [Appellant] agreed. Furthermore, similar to Reyes , [the trial c]ourt presided over the suppression hearing and [Appellant] inform ed [the trial c]ourt before trial that he desired to p roceed nonjury before the [c]ourt. Unlike Reyes , none of the evidence was suppressed pre-trial. Nevertheless, a t the non-jury trial, [counsel] objected to the admission of the probable cause section of the warrant as it contain ed information from a third party that would not be te stifying. [The trial c]ourt admitted the warrant itself and i nventory but removed Exhibit A (the affidavit) from evidence . [The trial c]ourt noted it would not consider the affida vit. [The trial c]ourt also informed [Appellant] that althoug h it previously reviewed it at the suppression hearing, it would not be admissible during a jury trial and therefore , asked [Appellant] if he still wanted to proceed non-jury before the [c]ourt. [Appellant] noted that he wanted to c ontinue before [the trial c]ourt. As there is no evidence that that [Appellant] desired [the trial c]ourt's recusal or that the [c]ourt was unable to preside impartially during th e trial, this claim is meritless. Opinion and Final Order, 3/10/2015, at 7 (internal citations omitted). This

was not error.J-S62027-15

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Appellant’s final claim is that counsel erred in n ot challenging a discrepancy in the weight of the drugs at issue. A ppellant’s Brief at 5. The trial court found:

Regarding a drug weight discrepancy, this matter wa s addressed at the non-jury trial. Before the Common wealth rested, it noted that the criminal information char ged 220.48 grains of cocaine but the total weight was a ctually 220.35 grams. As noted by [defense counsel], this was a small discrepancy that did not affect its admissibi lity. Accordingly, any claim related to [defense counsel’ s] ineffectiveness regarding the minimal weight discre pancy is meritless. Opinion and Final Order, 3/10/2015, at 7-8 (interna l citations omitted). This

was not error. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/19/2015