J-S49034-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RAYMOND GASTON POWELL, III, 

Appellant No. 208 EDA 2016

Appeal from the PCRA Order January 5, 2016

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0007621-2009

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 13, 2016

Appellant Raymond Gaston Powell, III, appeals the order entered in 

the Court of Common Pleas of Montgomery County on January 5, 2016, 

dismissing his first, counseled petition filed pursuant to the Post Conviction 

Relief Act (“PCRA”).1 Upon our review of the record, we affirm. 

In our disposition of Appellant’s direct appeal, we related the following 

factual and procedural history of Appellant’s case:

Beginning in October 2007, investigators from the 

Plymouth Township Police Department and the Montgomery 

County District Attorney’s Office conducted an investigation 

involving a drug ring operating in and around Plymouth 

Township and Norristown Borough, Montgomery County. Along 

with [Appellant], the principal subjects of this investigation were 

Charles Barksdale and Dontay Brewer. The investigation focused 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-46. 
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on two primary locations: 44 Ross Street, Plymouth Meeting and 

807 Green Street, 2nd Floor, Norristown. 

On September 17, 2009, Montgomery County District 

Attorney’s Office Detective Michael Fedak submitted an 

application for a search warrant along with an extensive affidavit 

of probable cause. The affidavit detailed the investigation dating 

back to its inception in late 2007. Based upon the averments 

contained therein, which included information obtained through 

the cooperation of six confidential informants, the Honorable 

Joseph A. Smyth issued a warrant authorizing investigators to 

search, inter alia, the aforementioned residence located on Ross 

Street in Plymouth Meeting. Upon execution of the warrant, 

officers discovered numerous firearms, ammunition, drug 

paraphernalia including plastic bags, a scale, cooking pots with 

cocaine residue, cutting agents, and instructions for preparing 

powder and crack cocaine. Investigators also retrieved several 

items linking [Appellant] to the residence, including photographs 

of him, a driver’s license, registrations for two automobiles and 

letters.

Having been detained at the scene prior to the 

commencement of the search, [Appellant] was subsequently 

arrested after the police discovered the contraband. A search 

warrant was obtained for [Appellant’s] Cadillac, in which police 

found additional contraband. [Appellant] was ultimately charged 

with numerous offenses related to the drug-trafficking ring. 

Others were charged in the conspiracy, but all except [Appellant] 

entered into guilty plea agreements, some of which involved 

testifying for the prosecution against [Appellant]. 

[Appellant] was tried by a jury and, on September 23, 

2010, was convicted of possession with intent to deliver a 

controlled substance, unlawful possession of firearms and related 

charges. On December 7, 2010, Judge Smyth sentenced 

[Appellant] to an aggregate term of 16 to 40 years’ 

incarceration. 

Commonwealth v. Powell, No. 110 EDA 2011, unpublished memorandum 

at 1-3 (Pa.Super. filed March 28, 2013). 

On direct appeal, Appellant first alleged Judge Smyth should have 

recused himself from the suppression proceedings, and Appellant attacked 
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the validity of the search warrant the court had issued. Appellant further 

challenged Judge Smyth’s denial of his motion to disclose the identities of 

the confidential informants and claimed he was entitled to a new trial in light 

of after-discovered evidence in the form of a recantation of one of the 

Commonwealth’s witnesses. Finding no merit to these claims, this Court 

affirmed Appellant’s judgment of sentence. Our Supreme Court denied 

Appellant’s petition for allowance of appeal on October 29, 2013. See 

Commonwealth v. Powell, 621 Pa. 702, 78 A.3d 1090 (2013). 

On June 20, 2014, Appellant filed a PCRA petition, pro se. Counsel 

was appointed and filed an amended petition wherein he raised various 

claims of trial counsel’s ineffectiveness. The PCRA court held a hearing on 

Appellant’s petition on April 14, 2015, at which time Appellant, his sister and 

trial counsel testified. Following the hearing, the PCRA court took the matter 

under advisement to review the issues Appellant had raised in his PCRA 

petition in light of the hearing testimony, the parties’ briefs, and the record 

as a whole. In its Memorandum and Final Order Dismissing Post-Conviction 

Petition dated December 31, 2015, and entered on January 5, 2016, the 

PCRA court denied Appellant’s petition (“Memorandum”). Appellant filed a 

timely notice of appeal on January 15, 2016. The trial Court did not order, 

and Appellant did not file, a concise statement of matters complained of on 

appeal pursuant to Pa.R.A.P. 1925. 

In his brief, Appellant presents the following question for our review: 
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Did Trial Counsel render ineffective assistance of counsel 

when he failed to raise a motion in limine, or take other 

appropriate steps, to redact portions of an intercepted telephone 

conversation, involving the Appellant, which clearly revealed that 

the Appellant was incarcerated?

Brief for Appellant at 3. 

“In PCRA proceedings, an appellate court's scope of review is limited 

by the PCRA's parameters; since most PCRA appeals involve mixed 

questions of fact and law, the standard of review is whether the PCRA court's 

findings are supported by the record and free of legal error.” 

Commonwealth v. Pitts, 603 Pa. 1, 7, 981 A.2d 875, 878 (2009) (citation 

omitted). Our Supreme Court has further stated that before a PCRA 

petitioner will be deemed entitled to relief on an ineffectiveness claim, he or 

she must establish: 

(1) the underlying claim has arguable merit; (2) no reasonable 

basis existed for counsel's action or failure to act; and (3) he 

suffered prejudice as a result of counsel's error, with prejudice 

measured by whether there is a reasonable probability the result 

of the proceeding would have been different. Commonwealth 

v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127 (2011) (employing 

ineffective assistance of counsel test from Commonwealth v. 

Pierce, 515 Pa. 153, 527 A.2d 973, 975–76 (1987)). Counsel is 

presumed to have rendered effective assistance. 

Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291 (2010). 

Additionally, counsel cannot be deemed ineffective for failing to 

raise a meritless claim. Commonwealth v. Jones, 590 Pa. 202, 

912 A.2d 268, 278 (2006). Finally, because a PCRA petitioner 

must establish all the Pierce prongs to be entitled to relief, we 

are not required to analyze the elements of an ineffectiveness 

claim in any specific order; thus, if a claim fails under any 

required element, we may dismiss the claim on that basis. Ali,

at 291.
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Commonwealth v. Treiber, ___ Pa. ____, ____, 121 A.3d 435, 445 

(2015) (footnote omitted). 

Herein, during the course of trial, the Commonwealth played a tape 

recording of a conversation between Appellant and his co-conspirator sister, 

Erica Powell, and displayed a transcript of the conversation as an aid to the 

jury, which included a reference that a co-conspirator Asmar Gary was “in 

here with me.”2 The call was recorded shortly after Appellant had been 

arrested and incarcerated awaiting trial in the instant matter, and his arrest 

was the topic of the conversation between Ms. Powell and Appellant. 

Defense counsel did not timely object to the playing of the conversation. 

Instead, after the jury had been excused for a recess, defense counsel 

placed an objection on the record, and the following discussion ensued in 

chambers:

THE COURT: Okay. Do you want to put something on the 

record?

TRIAL COUNSEL: Yes, Judge. I know the tape, for the 

record, has already been played. But there was [sic] references, 

I think in there that I believe the jury clearly could have figured 

out that the call was from prison.

THE COURT: Well, the tape was provided to you in 

advance. I wish-- and the transcripts-- and I wish-- 

TRIAL COUNSEL: Well, that’s not true, Judge. I don’t 

mean to cut Your Honor off. I didn’t get a transcript ever. The 

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2 Only the tape, not the transcript thereof, was admitted into evidence. 
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first time I looked at the transcript was just now right before the 

District Attorney played it.

As far as the tape is concerned, I did get the CD on 

Monday night, a day and a half ago. 

DISTRICT ATTORNEY: Judge, he has had the CD since 

June or July.

TRIAL COUNSEL: The redacted CD.

DISTRICT ATTORNEY: Right. And the only thing I 

redacted was the part where they talk about Montgomery 

County Correctional facility. And when the operator comes on, I 

said to him, let me know if you have any objections when I gave 

it to him on Monday. 

As far as the transcript is concerned, I believe that, when 

we were ready to go to trial in July, a transcript was prepared 

then. 

THE COURT: Was it given to him?

DISTRICT ATTORNEY: I don’t know. It is an aid to the 

jury--

THE COURT: Yes. But it would have been nice if he made

this objection beforehand and called it to my attention, and I 

could have looked at the transcription. Nobody made the 

objection to me in advance.

The only objection I considered, off the record, was the 

fact that the two talkers’ pictures were on the disc. And I ruled 

that those pictures should not be shown. 

And you made an objection that said, this is a pay call. 

And you thought the fact that it was a pay call, there was an 

inference that the call was coming from the prison.

And I said I didn’t think that to be so. I said that call—this 

is a pay call from [Appellant]. Do you accept?

And I believe something to that effect. And I said that 

doesn’t mean prison. I mean, my God, that’s the way I always 

used to call my kids.

We didn’t put that on the record. At no time did anybody 

call my attention, I think there might have been one or two 

references about in here. Obviously, I would delete those in 
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advance. I can’t delete them now. The tapes have been played 

and the transcripts have been shown. 

DISTRICT ATTORNEY: The tape is the evidence. I mean, 

the tape is the evidence in the case.

TRIAL COURT: The tape is the evidence.

DISTRICT ATTORNEY: In June or July. And the redacted 

portion is –

THE COURT: There was some statement he made that, he 

better have the money. If he don’t have the money he is in here 

with me. Something to that effect. Now, that can mean a lot of 

different things. 

DISTRICT ATTORNEY: Exactly.

THE COURT: If I would have heard it in advance, you 

know, there’s a good chance I might have deleted it. Nobody 

called this to my attention in advance. There’s nothing I can do 

about it now. I don’t want to give a cautionary instruction. It 

would just [sic] their attention to it. 

DEFENSE COUNSEL: Understood.

THE COURT: The objection is noted. Okay. Nothing else I 

could say. 

N.T., Trial, 9/22/10, at 233-237. 

Appellant avers that the “unmistakable, plain language of the 

telephone conversation (of which the jury was provided a written transcript) 

made it clear that [Appellant] was incarcerated at that specific point in 

time.” As such, Appellant maintains trial counsel had been ineffective in 

failing to file a motion in limine, or otherwise act appropriately, to ensure the 

jury would not hear the “inadmissible” portions of the recordings. Brief for 

Appellant at 7-8. 
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As permitted under Strickland v. Washington, 466 U.S. 668, 104 

S.Ct. 2052 (1984), we analyze the prejudice prong of the Pierce test first.

See also Trieber, ___ Pa. at ____, 121 A.3d at 448. In doing so we find 

that even assuming, as Appellant urges, that there is arguable merit to 

Appellant’s claim the jury understood his words to mean he had been 

incarcerated at the time of the phone call and that trial counsel had no 

reasonable basis for failing to challenge this evidence in a timely fashion, 

Appellant is not entitled to relief for his failure to demonstrate the outcome 

of trial would have been different had his statement been redacted from the

telephone conversation. 

As the PCRA court noted in its Memorandum, if the jury were able to 

infer from Appellant’s ambiguous statement that “[h]e in here with me” 

meant Appellant was incarcerated, it would have done so in the context of 

Appellant’s being in prison awaiting trial for the charges pending in this case. 

Memorandum, filed 12/31/15, at 29. However, Appellant erroneously posits 

he was prejudiced by any reference to his incarceration, for our Supreme 

Court has stated that “although generally no reference may be made at trial 

in a criminal case to a defendant’s arrest or incarceration for a previous 

crime, there is no rule in Pennsylvania which prohibits reference to a 

defendant’s incarceration awaiting trial or arrest for the crimes charged.” 

Commonwealth v. Johnson, 576 Pa. 23, 52-53, 838 A.2d 663, 680-81 

(2003) (citing Commonwealth v. Williams, 541 Pa. 85, 94, 660 A.2d 
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1316, 1321 (1995); see also, Commonwealth v. Wilson, 538 Pa. 485, 

506-07, 649 A.2d 435, 445-46 (1994) (finding testimony indicating 

defendant had been incarcerated before trial was not improper where jury 

reasonably could infer defendant’s detention was result of criminal acts for 

which he was then being tried); Commonwealth v. King, 959 A.2d 405, 

419 (Pa.Super. 2008) (relying upon Johnson, supra for a holding in the 

alternative that the appellant had not been harmed by an inferential 

reference of incarceration related to the matter for which he was on trial). 

In addition, given the overwhelming direct and circumstantial evidence 

of Appellant's guilt, it is difficult to believe the outcome of the proceedings 

would have been different but for counsel's failure to challenge Appellant’s 

brief statement in the recorded phone call. See Commonwealth v. 

Philistin, 617 Pa. 358, 53 A.3d 1, 10 (2012) (stating trial counsel presumed 

effective, and appellant must overcome such presumption by proving 

prejudice, meaning that there is a reasonable likelihood the outcome would 

have been different but for counsel's alleged ineffectiveness). Appellant’s 

DNA was discovered on the recovered firearms and significant contraband 

was recovered from both his home and vehicle. Furthermore, testimony of 

his co-conspirators implicated him in the crimes. In this regard, the PCRA 

court stated:

[T]he [c]ourt is convinced, in the context of the other evidence 

in the case, that any error in allowing the references to be heard 

by the jury would have been harmless beyond a reasonable 

doubt. The evidence connecting [Appellant] with the crack 
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cocaine operation, and with possession, at the very least joint if 

not sole possession, of the drugs, paraphernalia, and firearms 

found in the house, and with conspiracy with the others in the 

crimes, was overwhelming. The testimony of the admitted drug 

dealer Asmar Gary that Barksdale was his cocaine supplier, Gary 

would buy from either brother depending who had it, he had 

seen [Appellant] buy cocaine in large quantity and cook it into 

crack in a pot found in the house, had seen him display and 

move the firearms, which he claimed were his, and was there 

the day of the arrests to arrange to buy two ounces of coke from 

[Appellant] was alone sufficient to convict [Appellant] in the 

cocaine conspiracy beyond a reasonable doubt. In light of Gary’s 

testimony, especially damning were the letters, one addressed to 

[Appellant], describing methods for preparing cocaine and crack 

for distribution, found in his house in a room to which he had 

free access in close proximity to his driver’s license, car 

registration, and photographs of him. This evidence, together 

with all the other evidence presented by the Commonwealth, 

provided the jury with a strong inference [Appellant] was a 

leader of the cocaine conspiracy and guilty of the crimes [with] 

which he was charged. By contrast, [Appellant’s] evidence was 

weak and inherently incredible. A sister described a job to which 

she drove him, but could not explain convincingly why he 

needed a ride when he had his own car, and no records of 

employment were produced. A brother and coconspirator, 

Barksdale, claimed all the other conspirators were involved in 

the conspiracy but his brother was not, and explained his plea to 

conspiracy with his brother as being prompted by his attorney’s 

urging him to lie. Of course, his attorney contradicted this 

preposterous claim. The mild references to prison in the taped 

telephone call-if that is how the jury perceived them- could in 

the entire context of the case have had no influence on the jury’s 

verdict finding [Appellant] guilty of the crimes charged. The jury 

had already heard testimony that [Appellant], Gary and Thomas 

were arrested on the day his house was searched. It was 

apparent from the context of their testimony that Barksdale and 

Gary were both incarcerated. The jury could simply have 

presumed [Appellant] was as well, and paid no mind to the brief, 

passing, equivocal prison references in the taped telephone call, 

upon which the Commonwealth’s witness interpreting language 

in the call was not asked to and did not comment. Admission of 

the tape was harmless to the defense’s case. 
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Memorandum, filed 1/5/15, at 28-29 (citing Trial Court Opinion, dated 

8/10/11, at 34-40). 

Accordingly, we conclude Appellant's claim that trial counsel had been 

ineffective for failing to raise a motion in limine or otherwise properly 

challenge the Commonwealth's playing of the telephone conversation for the 

jury without first redacting Appellant’s vague reference fails for lack of 

prejudice.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/13/2016