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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 from the order of 

the Erie County Court of Common Pleas denying his petition 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 search 

warrant for Appellant’s residence at 1015 East 5th Street 

in Erie. Lt. Nolan’s affidavit of probable cause relied 

heavily on information provided by a confidential 

informant, who[m] he deemed reliable based on the fact 

that the confidential informant previously provided

information leading to fifteen felony drug arrests and 

fourteen convictions. Within the two weeks prior to the 

issuance of the search warrant, the confidential informant 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 
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 Appellant 

was now dealing drugs out of his current residence at 1015 

East 5th Street. The confidential informant also told Lt. 

Nolan that within the past forty-eight hours, he had been 

in Appellant’s East 5th Street residence and observed 

Appellant in possession of a baggie of crack cocaine 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 issuance of 

the search warrant. During the controlled buy, the

confidential informant observed additional amounts of 

crack cocaine inside Appellant’s residence. Based on the 

above information, Lt. Nolan obtained a search warrant for 

Appellant’s residence as well as his person. 

Prior to executing the search warrant, several other 

officers set up surveillance of Appellant’s residence on East 

5th Street at around 8:00 a.m. Lt. Nolan joined the 

surveillance team at approximately 10:00 a.m. and 

remained there until approximately 12:30 p.m. During 

that time, Lt. Nolan did not observe Appellant entering the 

apartment, though he did see Appellant exit the 

apartment. Lt. Nolan testified that he did not execute 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 different 

police department. 

Accordingly, Lt. Nolan waited for Appellant to exit the 

residence to execute the search warrant. Thereafter, 

police officers stopped the vehicle in which Appellant was a 

passenger and conducted a search of his person, finding a 

small baggie of crack-cocaine and a digital scale covered in 

crack-cocaine residue. A search of Appellant’s residence 

led to the discovery, in a bedroom, of an estimate for auto 

work, as well as a lease listing Appellant as a tenant. In 

that same bedroom, police discovered various drugs as 

well as a loaded firearm. 

Prior to trial, Appellant filed a motion to suppress the 

evidence discovered on his person and in the residence. In 

his motion, Appellant argued that the search warrant was 

not supported by probable cause, and further that the 
J-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. Following a 

bench trial, Appellant was found guilty of three counts of 

possession of a controlled substance, three counts of 

possession with intent to deliver, possession of drug 

paraphernalia, and two counts of criminal conspiracy. On 

January 11, 2010, Appellant was sentenced to an 

aggregate term of four to fifteen years’ incarceration. 

Commonwealth v. Barry- Gibbons, 173 WDA 2010, at *2-4 (Pa. Super. 

12/21/2010) (internal citations omitted). This Court affirmed Appellant’s 

judgment of sentence on December 21, 2010. 

 Appellant filed a PCRA petition seeking reinstatement of his right to 

appeal to the Supreme Court of Pennsylvania nunc pro tunc, which the PCRA 

court granted. Appellant filed a petition for allowance of appeal, which the 

Supreme Court of Pennsylvania denied on March 14, 2013. 

 From April 11, 2013 through July 15, 2013, Appellant 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 Relief 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 for a Grazier2 hearing and 

in accordance with Faretta v. California.”3 The PCRA court appointed 

____________________________________________ 

1

 The trial court states Appellant also filed a motion for extraordinary relief 

on April 11, 2013. However, a copy of this document is not contained in the 

certified record, and the docket does not reflect an 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 

- 4 - 

counsel. On October 10, 2014, counsel filed a supplemental PCRA petition. 

On December 22, 2014, the PCRA court held an evidentiary hearing. On 

March 10, 2015, the court denied the PCRA petition. 

 Appellant filed a timely notice of appeal. On April 22, 2015, Appellant 

filed a concise statement of errors complained of on appeal pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(b). On April 23, 2015, the 

trial court issued its Rule 1925(a) opinion incorporating 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-conviction relief “is 

limited to examining whether the PCRA court’s determination is supported by 

the evidence of record and whether it is free of legal 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 petitioner 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 burden of demonstrating 
J-S62027-15 

- 5 - 

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 [ineffectiveness] prongs results in the 

failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279). “To 

demonstrate prejudice, the petitioner must show that ‘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 counsel4 was ineffective for failing to 

present his co-defendant Javon Franklin as a witness at the pre-trial 

suppression hearing. Appellant’s Brief at 4. 

To establish an ineffective assistance of counsel claim for failure to call 

a witness, the petitioner must prove: “(1) the witness 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 absence of the testimony of the 

witness was so prejudicial as to have denied the defendant a fair trial.” 

____________________________________________ 

4

 Appellant was represented by different counsel at the pre-trial and trial 

phases of his prosecution. 
J-S62027-15 

- 6 - 

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 purposes. Id. at 42-43. 

The trial court credited Appellant’s counsel, including his testimony 

that he did not inform Appellant that he would subpoena Franklin. Further, 

the trial court found counsel had a reasonable basis for not calling Franklin, 

i.e., 

because his proffered testimony had no relevancy at the 

suppression hearing on [Appellant’s] challenge to the 

search warrant (i.e., four corners of the affidavit) or the 

traffic stop. Rather, Franklin’s testimony involved 

[Appellant’s] defense of lack of culpability, which was a 

trial matter and not cognizable in a suppression hearing. 

Opinion and Final Order, 3/10/2015, at 5. The trial court further found 

Appellant was not prejudiced because Franklin testified at trial. The trial 

court did not err in its analysis, and Appellant’s counsel ineffectiveness claim 

fails. 
J-S62027-15 

- 7 - 

Appellant next claims trial counsel was ineffective for failing to 

interview Appellant until the day before trial, failing to interview trial 

witnesses prior to trial, failing to request that the trial judge recuse himself, 

and failing to investigate or challenge a discrepancy in the weight of the 

drugs at issue. Appellant’s Brief at 5. 

Appellant maintains the PCRA court erred in accepting 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 Appellant, Barry and 

Franklin. Appellant’s Brief at 5. The PCRA court found: 

At the evidentiary hearing, Attorney Williams credibly 

testified that he spoke with [Appellant] on at least two 

prior occasions before trial. Furthermore, Attorney 

Williams stated that he spoke with both Stephanie Barry 

and Javon Franklin several times before trial, and both 

witnesses testified consistently with what they told 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 ineffective for failing to seek 

recusal of the trial judge, who presided over the suppression hearing and the 

bench trial. Appellant’s Brief at 5-6. The Supreme Court of Pennsylvania 

has found a trial judge must recuse only if a defendant demonstrates 
J-S62027-15 

- 8 - 

“substantial doubt as to the judge’s ability to preside 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 [Appellant] 

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 spoke with 

[Appellant] before trial and at no time did [Appellant] 

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] informed 

[the trial c]ourt before trial that he desired to proceed nonjury before the [c]ourt. Unlike Reyes, none of the 

evidence was suppressed pre-trial. Nevertheless, at the 

non-jury trial, [counsel] objected to the admission of the 

probable cause section of the warrant as it contained 

information from a third party that would not be testifying. 

[The trial c]ourt admitted the warrant itself and inventory 

but removed Exhibit A (the affidavit) from evidence. [The 

trial c]ourt noted it would not consider the affidavit. [The 

trial c]ourt also informed [Appellant] that although 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 continue 

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 the trial, 

this claim is meritless. 

Opinion and Final Order, 3/10/2015, at 7 (internal citations omitted). This 

was not error. 
J-S62027-15 

- 9 - 

 Appellant’s final claim is that counsel erred in not challenging a 

discrepancy in the weight of the drugs at issue. Appellant’s Brief at 5. The 

trial court found: 

Regarding a drug weight discrepancy, this matter was 

addressed at the non-jury trial. Before the Commonwealth 

rested, it noted that the criminal information charged 

220.48 grains of cocaine but the total weight was actually 

220.35 grams. As noted by [defense counsel], this was a 

small discrepancy that did not affect its admissibility. 

Accordingly, any claim related to [defense counsel’s] 

ineffectiveness regarding the minimal weight discrepancy 

is meritless. 

Opinion and Final Order, 3/10/2015, at 7-8 (internal citations omitted). This 

was not error. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 11/19/2015