J-S04019-15

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellant

v.

CHRISTIAN VANCE JOY,

 Appellee

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 860 MDA 2014

Appeal from the PCRA Order Entered May 16, 2014,

in the Court of Common Pleas of Dauphin County, 

Criminal Division at No(s): CP-22-CR-0005188-2009

BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 25, 2015

Christian Vance Joy (Appellee) filed a petition pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The PCRA court 

granted the petition, which resulted in a new trial for Appellee. The 

Commonwealth of Pennsylvania (the Commonwealth) appeals the PCRA 

court’s order. In addition, Appellee has filed in this Court a document 

entitled “Second Request for Application for Extension of Time to File 

Supplemental Brief.” We affirm the PCRA court’s order and deny Appellee’s 

application as moot.

The background underlying this matter can be summarized as follows.

On July 1, 2009, at roughly 2:40 p.m., [Officer Stephen 

Cover] was dispatched to an apartment complex in response to a 

reported domestic dispute wherein a male and female were 

fighting. When Officer [Cover] arrived at the address to which 

he had been dispatched, he was not accompanied by other 

officers. He saw two maintenance workers and, across a street, 
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[Appellee]. One of the maintenance workers pointed to 

[Appellee] and told Officer [Cover], “There he is[;] there’s the 

guy you need to speak to.” 

Officer [Cover] told [Appellee] words to the effect that the 

officer needed to talk to him. [Appellee] indicated that he was 

not going to talk to the police. Seeing that [Appellee] had one of 

his hands in one of his pockets, Officer [Cover] asked him to 

remove his hand therefrom. [Appellee] refused. Officer [Cover] 

then asked or told [Appellee] to “come here.” Officer [Cover] 

also advised [Appellee] that, if no one had been injured and no 

charges were to be filed, [Appellee] would be free to leave.

Officer [Cover] then began walking toward [Appellee]. 

[Appellee] walked away from him. Officer [Cover] again 

indicated that he needed to speak to [Appellee] and told him to 

stop. At that point, [Appellee] ran. Officer [Cover] chased 

[Appellee] and saw that he continued to keep his hand in his 

pocket until [Appellee] and Officer [Cover] ran around the corner 

of a certain building. [Appellee] slowed his pace somewhat at 

that point, and Officer [Cover] eventually caught him.

Upon catching [Appellee], Officer [Cover] took him to the 

ground. [Appellee] then struggled with Officer [Cover]. At that 

time, [Appellee’s] girlfriend arrived on the scene and began 

trying to go through [Appellee’s] pockets. The female refused 

Officer [Cover’s] commands to back away and, when [Officer 

David Shifflett] arrived, the female also refused Officer 

[Shifflett’s] similar commands. Eventually, Officer [Shifflett] 

arrested the female.

Officer [Cover] arrested [Appellee] and, during a search 

incident to that arrest, Officer [Cover] found roughly $250.00 in 

[Appellee’s] pockets. After placing [Appellee] in a police car, 

Officer [Cover] retraced the path of his foot pursuit and, while 

doing so, found a plastic bag. The bag, which did not appear to 

be weathered in any way, was on a bush, somewhat “nestled 

down” into the bush, but essentially on top of it. Officer [Cover] 

would later testify that, while chasing [Appellee], Officer [Cover] 

did not see anyone other than [Appellee] in the path or area of 

the chase.

In the bag were numerous clear vials. Liquid was in some 

of those vials; vegetable matter was in others. Laboratory tests 
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would later show that the liquid was PCP and that the vegetable 

matter contained PCP.

After retrieving the bag, Officer [Cover] walked past the 

police car in which [Appellee] sat. As the officer did so, 

[Appellee] tried to kick out the windows of the vehicle. Officer 

[Cover] later transported [Appellee] to a police station. While 

[Appellee] was in a holding cell, police administered him his 

rights under Miranda v. Arizona, 384 U.S. 436 (1966). He 

agreed to speak with police and asked with what he was being 

charged. When Officer [Cover] indicated [Appellee] was being 

charged with possession with intent to deliver (“PWID”) 

marijuana based on Officer [Cover’s] belief that the vegetable 

matter was marijuana, [Appellee] replied to the effect that he 

could not believe the police thought “that was weed.” An expert 

witness for the Commonwealth would later testify that PCP is 

typically coated onto mint leaves to be smoked.

[Appellee] eventually faced charges of PWID PCP, 

possessing drug paraphernalia (“paraphernalia”), resisting arrest 

(“RA”) and disorderly conduct (“DC”). Prior to trial, he moved to 

suppress the evidence found by Officer [Cover] on the aforesaid 

bush. The court denied that motion; [Appellee] proceeded to 

trial. He was convicted of RA and DC, but the jury could not 

reach a verdict on PWID and paraphernalia. The court declared 

a mistrial on those charges.

Thereafter, [Appellee] was retried on PWID and 

paraphernalia, and he was convicted of those offenses. 

[Appellee] was then sentenced on all four convictions. He filed a 

post-sentence motion for a new trial, essentially contending in 

that motion that the PWID verdict was against the weight of the 

evidence. The court denied [Appellee’s] post-sentence motion....

Commonwealth v. Joy, 62 A.3d 464 (Pa. Super. 2012) (unpublished 

memorandum at 1-4) (citations omitted).

This Court affirmed Appellee’s judgment of sentence. Id. On May 31, 

2013, our Supreme Court denied Appellee’s petition for allowance of appeal. 
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Commonwealth v. Joy, 68 A.3d 907 (Pa. 2013). Appellee timely filed a 

PCRA petition, and the PCRA court appointed counsel to represent Appellee.

PCRA counsel initially sought to withdraw his representation of 

Appellee pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) 

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

However, counsel later withdrew his request to withdraw and filed an 

amended PCRA petition. 

In the amended petition, counsel stated that Appellee’s wife provided 

counsel with bank statements. The bank statements indicate that, on the 

day he was arrested, Appellee had withdrawn approximately $250 from his 

bank account. According to the amended PCRA petition, during his trial, the 

Commonwealth utilized the $250 found on Appellee on the day of his arrest 

as evidence to connect Appellee to the drugs the police recovered in a bush. 

Appellee averred that trial counsel was ineffective for failing to present the 

jury with the bank statements, as those statements would have countered 

the Commonwealth’s theory regarding the $250.

The PCRA court held a hearing on May 13, 2014. The PCRA court 

subsequently issued an order, which in effect granted Appellee’s PCRA 

petition and ordered that Appellee receive a new trial. The Commonwealth 

timely filed a notice of appeal. The PCRA court directed the Commonwealth 

to comply with Pa.R.A.P. 1925(b), and the Commonwealth filed a 1925(b) 
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statement. The PCRA court eventually authored an opinion in response to 

that statement.1

In its supplemental brief to this Court, the Commonwealth asks us to 

consider the following question: “Whether the PCRA court erred in finding 

Appellee’s trial counsel was ineffective for failing to introduce a bank 

statement that was irrelevant to [] Appellee’s defense at trial when [] 

Appellee’s defense at trial involved denying possession of the controlled 

substance that he was convicted of possessing?” Commonwealth’s Brief at 4 

(unnecessary capitalization omitted).

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the court’s rulings are supported by the evidence of 

record and free of legal error. Commonwealth v. Anderson, 995 A.2d 

1184, 1189 (Pa. Super. 2010). “To establish ineffectiveness of counsel, a 

PCRA petitioner must show the underlying claim has arguable merit, 

counsel’s actions lacked any reasonable basis, and counsel’s actions 

prejudiced the petitioner. Prejudice means that, absent counsel’s conduct, 

there is a reasonable probability the outcome of the proceedings would have 

been different.” Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. 

Super. 2013) (citations omitted).

 

1 Because the PCRA court did not file its opinion until January 9, 2015, this 

Court remanded the matter to allow the Commonwealth to file a 

supplemental brief addressing the rationale employed by the PCRA court in 

its opinion. 
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The PCRA court accurately summarized the evidence submitted at the 

PCRA hearing as follows:

At the PCRA Hearing, [PCRA] counsel called [trial counsel 

to testify]. [Trial counsel] is currently employed at the Dauphin 

County Public Defender’s Office and represented [Appellee] for 

the second jury trial. [Trial counsel] testified that he had a 

chance to review the transcripts from the first jury trial and that 

he noticed the bank records were objected to. [Trial counsel] 

did have an opportunity to talk to [Appellee] prior to [his] 

second trial. [Appellee] did inform [trial counsel] about the bank 

statement. [Trial counsel] testified that “in retrospect ... I 

realized maybe it would have helped a jury say, hey, he wasn’t a 

drug dealer because he had a reason to have the $250 not from 

the sale of drugs.” When asked if [trial counsel] could have 

changed what he had done and obtained the records, [trial 

counsel] stated that “yea he probably would.” [Trial counsel] 

testified that the defense presented at trial was that it was not 

[Appellee]. [Trial counsel] testified that [Appellee] asked him 

for the records at some point and that [Appellee] told him to 

“show where this came from.” [Trial counsel] responded that it’s 

not important.

[PCRA counsel] proceeded to call [Appellee] to the stand. 

[Appellee] indicated that there were two trials in this case and 

the first trial was a hung jury. [Appellee] testified that he 

informed [previous counsel] at the first trial of the bank record 

and that [Appellee] actually gave [previous counsel] a copy of it. 

[Appellee] testified that he believed that the jury actually heard 

the objection and that it helped to cause a hung jury as to [the 

drug-related charges]. [Appellee] testified that he was upset 

that [trial counsel] did not have the bank records because 

[Appellee] had just gone through a jury trial in which he knew

that he needed to make the bank statements authentic.

On cross-examination at the PCRA Hearing, the 

Commonwealth introduced the bank statement. [Appellee] 

testified that his [statement] looked a little different but the 

amounts were the same. The bank statements were shown that 

the [account] was overdrawn. They also showed that there was 

a deposit of $227.05 from the National Recovery Agency where 

[Appellee] was employed. [Appellee] testified that he had the 

cash on him because he has a wife and six kids and that he had 
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bills to pay. [Appellee] further stated that he withdrew the 

money [out of the MAC machine] five minutes [] before he was 

arrested. [Appellee] testified that he believed [trial counsel] had 

his bank statement and that he was going to turn it over to 

PCRA counsel. [Appellee] further testified that there was 

nothing found inside his pockets that was indicative of selling 

drugs.

On direct examination at the PCRA Hearing, the 

Commonwealth called [the district attorney who represented the 

Commonwealth at both trials] to testify. [He] testified that the 

money was not that important. [The district attorney] further 

testified that what was important to the Commonwealth’s case 

was proving [Appellee’s] possession of those items by looking at 

all the surrounding circumstances of the case. On crossexamination, [he] stated that he gave a hypothetical to [the 

Commonwealth’s expert at trial] which included the $250. [The 

district attorney] was asked if “the last thing the jury heard from 

[the Commonwealth’s expert] was $250 in his pockets broken 

down into twenty-dollar bills, that’s directly related to drug 

dealing?” [His] response was “if that’s what the last thing was 

he said in there. I mean, that would have been the last part 

during my direct, because then [the expert] was on crossexamination.”

PCRA Court Opinion, 1/9/2015, at 3-5 (footnotes omitted).

The PCRA court offered the following analysis in support of its decision 

to grant Appellee a new trial:

[Trial counsel] represented [Appellee] at the second jury 

trial. [Trial counsel], at the PCRA hearing, testified that in 

retrospect he would have tried to get the bank statements in. 

[Trial counsel] had a copy of the December, 2011 Jury Trial 

transcripts and could have seen that the bank statements were 

attempted to be introduced and were objected to. Furthermore, 

[Appellee] attempted to tell [trial counsel] that the jury heard 

the objection in the first trial and that the reason he thought he 

had a hung jury on two counts was because the jury heard the 

objection. [Appellee] further testified that he was aware of why 

the bank statement was objected to. Due to the bank statement 

not being properly authenticated, it did not come in the first 

trial. Furthermore, [t]rial counsel] testified that when looking 
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back he would have, probably, obtained the records. [He] tries 

to make the argument that he did not use the bank statement 

“because at the time I was arguing simple possession versus –

or I wasn’t arguing simple possession versus possession with 

intent to deliver. I was just arguing it wasn’t him.” But because 

it was [not] a smaller amount of [drugs], [trial counsel] testified 

that he was not trying to say that [Appellee] possessed it for 

personal use. Although [trial counsel] makes these arguments, 

the amount of cash that was found in [Appellee’s] pockets would 

have directly related to the amount of money that [Appellee] 

had withdrawn from an ATM merely minutes prior to being 

arrested. Furthermore, no other items were found in 

[Appellee’s] pockets that could tie him to the drugs. By 

producing the bank statement, there would have been a direct 

reason as to why [Appellee] had the cash in his pocket.

Finally, the result would have been different absent such 

error. There were two jury trials. In the first jury trial, there as 

a hung jury as to [the drug-related charges]. Only in the second 

trial, was [Appellee] found guilty of these counts. [Appellee] 

testified that, in his opinion, the reason the first jury reached a 

hung decision on [the drug-related charges] was due to the fact 

that they heard the objection as to the bank statement which 

would have indicated where [Appellee] received the cash that 

was found on his person.

Because the underlying claim has arguable merit, there 

was no reasonable basis as to why [trial counsel] in the second 

trial did not attempt to introduce the bank statements and the 

fact that [trial counsel] testified that he should have attempted 

to introduce the bank statements, and that there is a reasonable 

probability that the result of the proceeding would have been 

different absent such error as indicated by the first trial resulting 

in a hung jury at to [the drug-related charges], [Appellee] 

satisfied the ineffective assistance [standard].

Id. at 6-7.

The Commonwealth summarizes its argument on appeal as follows:

The Commonwealth contends that the PCRA court’s 

decision is not supported by the record as the record indicates 

that [trial counsel’s] strategic basis implemented at trial was 

reasonable in light of the defense theory he pursued which was 
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that the 15 grams of PCP did not belong to [Appellee]. At the 

evidentiary hearing, [trial counsel] testified that the bank record 

only explained the source of the money that was recovered from 

[Appellee], which would have only been effective in a defense of 

simple possession of the PCP found on [Appellee’s] person. As 

[trial counsel] testified that the quantity of the PCP at issue in 

this case made an argument of personal use impractical, the 

Commonwealth contends that [trial counsel] had a reasonable 

basis for not introducing the bank record as it bore no relevance 

to [Appellee’s] defense theory. Further, [on direct appeal, this 

Court] did not even address the money in [Appellee’s] pocket 

when it concluded the weight of the evidence supported Joy’s 

conviction of PWID in this matter and the bank record further 

presented [Appellee’s] suspicious accounting practices.

Commonwealth Brief at 17. We disagree with the Commonwealth.

At trial, the Commonwealth was required to prove that Appellee 

possessed with the intent to deliver the drugs that Officer Cover discovered 

in a bush and that he possessed the related drug paraphernalia. The 

Commonwealth was unable to obtain direct evidence which established that 

Appellee possessed these items. Consequently, the Commonwealth had to 

prove that Appellee possessed the items through the presentation of 

circumstantial evidence.

A key piece of circumstantial evidence that the Commonwealth 

introduced at trial to establish that Appellee possessed the drugs and 

paraphernalia was the $250 that Office Cover removed from Appellee’s 

pocket. The Commonwealth highlighted that the $250 consisted of all 

twenty dollar bills, save for one ten dollar bill. N.T., 12/5/2011-12/7/2011, 

at 35. Later, the Commonwealth’s expert witness, through the use of a 

hypothetical, essentially testified that the circumstances of this case led him 
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to conclude that Appellee is a drug dealer. Id. at 87-91. One of those 

circumstances was that Appellee had cash on his person, the majority of 

which was made up of twenty dollar bills.

In short, the money recovered from Appellee’s person provided an 

important piece of circumstantial evidence relied upon by the 

Commonwealth in its attempt to prove that Appellee possessed the drugs 

and paraphernalia. It was not, as the Commonwealth would like us to 

believe, unimportant. We therefore conclude there is arguable merit to 

Appellee’s claim that trial counsel was ineffective for failing to present bank 

records showing Appellee withdrew $250 from a bank on the day he was 

arrested for these offenses. Such evidence would have strongly challenged 

the Commonwealth’s theory that the $250 was related to the sale of drugs 

and thus may have undermined the suggestion that Appellee possessed the 

drugs and paraphernalia.

In terms of counsel’s basis for not presenting the bank statements as 

evidence, counsel testified at the PCRA hearing that his trial strategy was to 

present a defense of “it wasn’t him.” N.T., 5/13/2014, at 6. However, 

evidence of the source of money found in Appellee’s pocket is entirely 

consistent with an “it-wasn’t-him” defense. Evidence that Appellee did not 

have drug-sale-related money on his person undermines the 

Commonwealth’s theory that the money suggests Appellee possessed the 

drugs and paraphernalia. For these reasons, we conclude that Appellee 
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proved trial counsel’s stated strategy for not presenting the evidence of the 

source of the money is unreasonable.

Lastly, we also conclude Appellee proved the prejudice prong of the 

ineffective-assistance-of-counsel standard. Stated succinctly, there is a 

reasonable probability that, but for counsel’s failure to introduce the bank 

records as evidence at trial, the outcome of Appellee’s trial would have been 

different. For these reasons, we affirm the PCRA court’s order.

Order affirmed. Second Request for Application for Extension of Time 

to File Supplemental Brief denied.

Judge Bowes joins the memorandum.

Judge Allen files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/25/2015