J-S32021-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

MICHAEL DEVON INGRAM, 

 Appellant No. 1681 WDA 2014 

Appeal from the PCRA Order of August 7, 2014 

In the Court of Common Pleas of Venango County 

Criminal Division at No(s): CP-61-CR-0000376-2009 

BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ. 

MEMORANDUM BY OLSON, J.: FILED JULY 24, 2015

 Appellant, Michael Devon Ingram, appeals from the order entered on 

August 7, 2014, dismissing his first petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel filed a 

petition to withdraw from further representation pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth 

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Upon review, we 

grant counsel's petition to withdraw and affirm the dismissal of Appellant's 

PCRA petition. 

 We previously summarized the facts of this case as follows: 

At the conclusion of trial on April 13, 2010, a jury found 

Appellant guilty of criminal conspiracy to distribute a 

controlled substance (cocaine), distribution of a controlled 

substance (cocaine), criminal attempt to deliver a noncontrolled substance, possession of drug paraphernalia, and 

driving while operating privileges are suspended or revoked. 
J-S32021-15 

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Thereafter, on June 16, 2010, the trial court sentenced 

Appellant to an aggregate term of 69-138 months’ 

incarceration. 

The evidence introduced at trial established the following 

facts. In May 2009, several undercover narcotics officers 

engaged in a surveillance detail observed Appellant enter a 

residence on Liberty Street in Franklin, PA. A confidential 

informant followed Appellant into the residence. Once 

inside, the informant gave $175.00 in pre-marked currency 

to Rebecca [Chludzinski], the occupant of the Liberty Street 

residence, who in turn handed the money to Appellant who 

was standing in the doorway of a separate room. The 

informant testified that, although Appellant was standing in 

a different room, the informant was still able to observe 

Appellant hand a baggie of crack cocaine to [Chludzinski]. 

[Chludzinski] also told the informant that he should hurry 

back if he wanted more cocaine because Appellant intended 

to leave the area shortly. After exiting the Liberty Street 

residence, the informant walked directly to law enforcement 

personnel engaged in the surveillance detail and gave them 

the baggie of crack cocaine. Subsequently, Appellant left 

the residence and departed from the scene in a green, 2-

door Buick. 

Based upon their observations and information obtained 

from the confidential informant, the investigating officers 

obtained and executed a search warrant at the Liberty 

Street residence. While executing the warrant, the officers 

interviewed [Chludzinski] who stated that the crack cocaine 

sold at her residence came from Appellant and that 

Appellant planned to return to the residence in the green 

Buick with at least two baggies of crack cocaine. 

The following day, pursuant to an anticipatory vehicle 

warrant obtained in reliance upon the foregoing facts, 

investigating officers detained and performed a search of 

Appellant and his automobile. As a result of this search, 

officers recovered from Appellant’s left front pants pocket 

the pre-marked currency used by the confidential informant 

to make the controlled purchase of crack cocaine. Officers 

also recovered a counterfeit substance packaged as crack 

cocaine. 
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On August 6, 2009, Appellant moved to suppress the 

evidence obtained from the search of his vehicle. The trial 

court denied Appellant’s suppression motion on January 26, 

2010. Based upon the evidence presented at trial, a jury 

found Appellant guilty on April 13, 2010. At the sentencing 

hearing held on June 16, 2010, Appellant made an oral 

motion for extraordinary relief based on the contention that 

one of the Commonwealth’s witnesses wished to recant her 

testimony. After concluding that Appellant’s claim did not 

warrant extraordinary relief, the trial court deferred 

consideration of Appellant’s contention and proceeded to 

impose the sentence described above. Appellant filed a 

post-sentence motion on February 4, 2011. That motion 

was denied by operation of law on June 4, 2011. 

Commonwealth v. Ingram, 50 A.3d 231 (Pa. Super. 2011) (unpublished 

memorandum) (footnotes to criminal statutes omitted) at 2-4. 

 A timely appeal resulted. On May 1, 2012, this Court affirmed 

Appellant’s judgment of sentence in an unpublished memorandum wherein 

we adopted the trial court’s opinion. See id. On August 2, 2012, Appellant 

filed a pro se PCRA petition. On August 7, 2012, the PCRA court appointed 

counsel to represent Appellant. On March 18, 2013, counsel for Appellant 

filed an amended PCRA petition. The PCRA court held a hearing on the 

amended PCRA petition on April 11, 2014. By order and opinion dated 

August 7, 2014, the PCRA court denied relief. This timely appeal followed.1 

____________________________________________ 

1

 Appellant filed a notice of appeal on September 5, 2014. On October 7, 

2014, the PCRA court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied. 

The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on December 

17, 2014. 
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On appeal to this Court, PCRA counsel determined that there are no 

“non-frivolous” issues for appellate review. Because of this determination, 

counsel notified Appellant of his intent to withdraw from representation and 

filed, in this Court, both a motion to withdraw as counsel and an 

accompanying “no merit” letter pursuant to Turner/Finley. See

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012). Appellant 

filed a pro se request for an extension of time to respond to counsel’s “no 

merit” letter. By order entered on February 6, 2015, this Court granted an 

extension, giving Appellant until January 29, 2015 to file a response. To 

date, Appellant has not responded. 

Counsel's Turner/Finley letter presents the following claims for our 

consideration: 

1. The offense of possession with intent to deliver should be 

made concurrent with the possession offense, since the 

lesser of the offenses is included in the greater offense[], 

and should not have been sentenced consecutively. 

2. [Appellant] believes he was convicted of [possessing] a 

non-controlled substance but sentenced for [possessing] 

a controlled substance. 

3. The trial court failed to hold a hearing or to address the 

assertion that one of the Commonwealth’s witnesses,

Rebecca Chludzinski, had recanted her testimony and

been coerced into providing the testimony at trial.

4. Trial and appellate counsel were ineffective for failing to 

appeal or to [file] post-sentence motions when the 

Commonwealth’s witness stated that she wanted to 

recant her testimony and had been forced into testifying 

falsely at trial. 
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5. Trial counsel failed to conduct a proper or adequate pretrial investigation, by failing to interview witnesses, 

finding out about the alleged confidential informant who 

was never involved in prior criminal cases, and therefore 

was not a reliable confidential informant as alleged by 

the police. 

6. The District Attorney was involved in previous cases of 

similar prosecutorial misconduct. 

Appellant's Brief at 2-6 (superfluous capitalization omitted).2

Prior to reviewing the merits of this appeal, we first decide whether 

counsel fulfilled the procedural requirements for withdrawing as counsel. 

Doty, 48 A.3d at 454. As we have explained: 

Counsel petitioning to withdraw from PCRA representation 

must proceed ... under Turner, supra and Finley, supra

and must review the case zealously. Turner/Finley

counsel must then submit a “no-merit” letter to the trial 

court, or brief on appeal to this Court, detailing the nature 

and extent of counsel's diligent review of the case, listing 

the issues which petitioner wants to have reviewed,

explaining why and how those issues lack merit, and

requesting permission to withdraw. 

Counsel must also send to the petitioner: (1) a copy of the 

“no merit” letter/brief; (2) a copy of counsel's petition to 

withdraw; and (3) a statement advising petitioner of the 

right to proceed pro se or by new counsel. 

* * * 

____________________________________________ 

2

 Counsel has not paginated the Turner/Finley brief. We have provided 

page numbers for ease of reference. 
J-S32021-15 

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Where counsel submits a petition and no-merit letter that ... 

satisfy the technical demands of Turner/Finley, the court—

trial court or this Court—must then conduct its own review 

of the merits of the case. If the court agrees with counsel 

that the claims are without merit, the court will permit 

counsel to withdraw and deny relief. 

Id. 

 Here, counsel satisfied all of the above procedural requirements. Thus, 

having concluded that counsel's petition to withdraw is Turner/Finley

compliant, we now undertake our own review of the case to consider 

whether the PCRA court erred in dismissing Appellant's petition. 

In reviewing the denial of PCRA relief, 

we examine whether the PCRA court's determination is 

supported by the record and free of legal error. To be 

entitled to PCRA relief, an appellant must establish, by a 

preponderance of the evidence, that his conviction or 

sentence resulted from one or more of the enumerated 

errors in 42 Pa.C.S.A. § 9543(a)(2); his claims have not 

been previously litigated or waived, id. § 9543(a)(3); and 

the failure to litigate the issue prior to or during trial or on 

direct appeal could not have been the result of any rational, 

strategic, or tactical decision by counsel. Id. § 9543(a)(4). 

An issue is previously litigated if the highest appellate court 

in which [the appellant] could have had review as a matter 

of right has ruled on the merits of the issue. Id.

§ 9544(a)(2). An issue is waived if [A]ppellant could have 

raised it but failed to do so before trial, at trial, on appeal or 

in a prior state postconviction proceeding. Id. § 9544(b). 

In order to obtain relief on a claim of ineffectiveness of 

counsel, a PCRA petitioner must satisfy the performance 

and prejudice test set forth in Strickland v. Washington,

466 U.S. 668 (1984). In Pennsylvania, we have applied the 

Strickland test by requiring that a petitioner establish that

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

reasonable basis existed for counsel's action or failure to 

act; and (3) the petitioner suffered prejudice as a result of 
J-S32021-15 

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counsel's error, with prejudice measured by whether there 

is a reasonable probability that the result of the proceeding 

would have been different. In other words, prejudice is 

assessed in terms of whether the petitioner has shown that 

the demonstrated ineffectiveness sufficiently undermines 

confidence in the verdict. Counsel is presumed to have 

rendered effective assistance, and, if a claim fails under any 

required element of the Strickland test, the court may 

dismiss the claim on that basis. 

Commonwealth v. Montalvo, 2015 WL 1888580, at *7-8 (Pa. 2015) 

(quotations, ellipsis and some citations omitted). 

 In his first issue presented, Appellant contends that his sentences 

should have run concurrently, because his convictions arose from the same 

events. Appellant’s Brief at 3. This claim implicates the discretionary 

aspects of sentencing. See Commonwealth v. Treadway, 104 A.3d 597, 

599 (Pa. Super. 2014) (“Generally, Pennsylvania law affords the sentencing 

court discretion to impose its sentence concurrently or consecutively to other 

sentences being imposed at the same time or to sentences already 

imposed.”). Upon review, however, Appellant did not couch this claim in 

terms of ineffective assistance of counsel in his PCRA petition and it is 

waived. See Commonwealth v. Watson, 835 A.2d 786, 801 (Pa. Super. 

2003) (holding a claim regarding the discretionary aspects of sentence, must 

be raised in the context of an ineffectiveness claim to be cognizable under 

the PCRA). Moreover, upon review of the record, Appellant argued that his 

sentence was excessive on direct appeal. Thus, any challenge to the 

consecutive nature of his sentences was previously litigated or otherwise 

waived for this additional reason. 
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Alternatively, Appellant claims trial counsel was ineffective for failing 

to request the merger of the sentences. Id. Unlike a challenge to the 

discretionary aspects of sentencing, a claim that merger of sentences was 

applicable implicates the legality of sentence and cannot be waived. See

Commonwealth v. Williams, 920 A.2d 887 (Pa. Super. 2007) (claim that 

sentences should have merged raises a non-waivable challenge to the 

legality of the sentences). Here there is no merit to the claim that trial 

counsel was ineffective for failing to request merger, because merger was 

not applicable. We previously determined: 

Crimes do not merge unless they arise from a single

criminal act and all the statutory elements of one offense 

are included in the elements of the other. Commonwealth 

v. Williams, 920 A.2d 887, 889 (Pa. Super. 2007); 42 

Pa.C.S.A. § 9765. The crime of possessing a controlled 

substance does not involve, as a statutory element, the 

possession of paraphernalia. See 35 P.S. § 780-

113(a)(16). Similarly, possessing paraphernalia does not 

have as a material element, the possession of a controlled 

substance. See 35 P.S. § 780-113(a)(32). Lastly, the crime 

of delivering a controlled substance requires, quite 

obviously, the delivery thereof to another person. 35 P.S. 

§ 780-113(a)(30). The offenses of possessing a controlled 

substance and possessing paraphernalia do not require 

delivery. Thus, the statutory elements of each of these 

offenses are not contained in the others. The sentences do 

not merge. Appellant's claim fails. 

Commonwealth v. Pitner, 928 A.2d 1104, 1111 (Pa. Super. 2007). 

Moreover, “it is well established that the completed crime and the conspiracy 

to complete the crime are separate and distinct offenses and do not merge 

for sentencing purposes.” Commonwealth v. Causey, 833 A.2d 165, 177 
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(Pa. Super. 2003) (citation omitted). Here, none of Appellant’s convictions 

should have merged; therefore, counsel cannot be ineffective for failing to 

raise a meritless challenge. Hence, Appellant’s first issue fails. 

 Next, Appellant claims “that he was convicted by the jury of conspiracy 

and delivery of a non-controlled substance in counts one and two, and that 

he was sentenced [for] conspiracy and delivery of a controlled substance 

on those counts.” Appellant’s Brief at 4 (emphasis supplied). 

 On this issue, the PCRA court determined: 

[] Appellant, in fact, was convicted and sentenced on 

[convictions for possessing] both a non-controlled and 

controlled substance. A review of [the trial court’s] 

sentencing order reveals that on June 16, 2010, Appellant 

was sentenced as follows: on count 1, criminal conspiracy 

to commit distribution of sale of a controlled 

substance/cocaine, to a term of imprisonment of forty-five 

(45) months to ninety (90) months; count 2, distribute a 

controlled substance/cocaine, to a term of forty-five (45) 

months to ninety (90) months; [] and count 3, criminal 

attempt to deliver a non-controlled substance to a term of 

imprisonment of twenty-four (24) months to forty-eight 

(48) months. Count 4 and 5 dealt with possession of 

paraphernalia and driving while operating privilege is 

suspended, respectively. 

PCRA Court Opinion, 12/17/2014, at 6 (some capitalization omitted).3 

 Upon review of the certified record, we conclude that Appellant was 

convicted and sentenced for conspiracy, delivery of a controlled substance, 

attempt to deliver a non-controlled substance, and possession of drug 

____________________________________________ 

3

 The PCRA court did not paginate its opinion. Thus, we have provided page 

numbers for ease of reference. 
J-S32021-15 

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paraphernalia. Appellant’s confusion stems from the fact that the 

Commonwealth filed a bill of criminal information and, subsequently, 

amended it three times before trial. Prior to trial, the trial court held two 

hearings for additional discovery, wherein Appellant requested laboratory 

tests conducted on the substance that police obtained in the controlled 

narcotics purchase. At trial, the Commonwealth presented the testimony of 

Ted Williams, a forensic scientist, who tested all of the recovered 

substances. The substance recovered from the controlled narcotics buy 

tested positive as crack cocaine. N.T., 4/13/2010, at 12, 16-17. The 

Commonwealth requested that the laboratory results be published to the 

jury because, “the third count [against Appellant] was a substantially similar 

substance that [Appellant] was trying to pass [] off as crack cocaine.” Id. at 

17. Defense counsel did not object. Id. at 18. Thereafter, Williams 

testified that “no controlled substances [were] detected” from the 

substances recovered from the trunk of the vehicle Appellant was driving, 

despite the fact that presumptive tests conducted by the police department 

indicated the presence of cocaine. Id. at 20. Prior to deliberation, the trial 

court noted there were four charges for the jury’s consideration – 

conspiracy, delivery of cocaine, criminal attempt to deliver a non-controlled 

substance, and possession of drug paraphernalia. N.T., 4/13/2010, at 191. 

The trial court defined the elements of those crimes to the jury. Id. at 192-

205. The verdict slip reflects that the jury found Appellant guilty of 

possession of delivery of a controlled substance and criminal attempt to 
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deliver a non-controlled substance, as well as conspiracy and possession of 

drug paraphernalia. Verdict, 4/13/2010, at 1. 

At the sentencing hearing prior to the imposition of the sentence, the 

Commonwealth told the trial court that amendments to the bill of criminal 

information were necessary because the presumptive narcotics tests and 

confirmatory tests were not compatible. N.T., 6/16/2010, at 28. The 

District Attorney noted that it amended the bill of criminal information and 

the jury was charged accordingly. Id. at 29. The trial court compounded 

the confusion regarding the controlled versus non-controlled substances 

charges and convictions, however, by entering an order of court on April 13, 

2010. In that order, the trial court directed the Pennsylvania Board of 

Probation and Parole to complete a pre-sentence investigation in anticipation 

of sentencing, but erroneously stated that Appellant was “guilty [of] [c]ount 

2, distribute a non-controlled substance.” Trial Court Order, 4/13/2010, at 

1 (emphasis added). The Commonwealth brought the error to the trial 

court’s attention prior to sentencing and the trial court agreed that its April 

order was erroneous. N.T., 6/16/2010, at 29-32. Defense counsel also 

agreed. Id. at 31. Before imposing sentence, the trial court sent the presentence investigation report back to the probation department for a 

recalculation of the sentencing guidelines as the result of the error. Id. at 

31-33. Appellant was sentenced thereafter. Thus, Appellant was properly 

charged and the jury found him guilty of both delivery of cocaine and 

attempt to deliver a non-controlled substance, as well as conspiracy and 
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possession of drug paraphernalia. Hence, there is no merit to Appellant’s 

second issue. 

 Appellant’s third and fourth issues presented are inter-related and we 

will examine them together. At the hearing prior to sentencing, the trial 

court noted that it received a letter, dated May 22, 2010, from trial witness 

Rebecca Chludzinski claiming “she was coerced into giving the testimony 

that she gave at the time of trial, and that the testimony was not true.” 

N.T., 6/16/2010, at 13. Currently, Appellant argues that the trial court 

erred by not holding a hearing on the matter when it was raised at 

sentencing. Appellant’s Brief at 5. Appellant also claims that trial and 

appellate counsel were ineffective for failing to raise the matter in a postsentence motion. Id. 

 On these issues, the PCRA court determined: 

At [Appellant’s] PCRA hearing, [] Jeri Bolton, Esq[.], who 

worked for the Public Defender’s Office and was counsel for 

[Appellant] at trial, testified that [] the letter dated May 22, 

2010, actually was recanted by Ms. Chludzinski. Moreover, 

Attorney Bolton testified she informed then-Assistant 

District Attorney (“ADA”) James Carbone she was told by 

Cody Kostra (“Kostra”), a jailhouse informant, that Ms. 

Chludzinski told Kostra she recanted. Attorney Bolton 

testified that she did not know of Ms. Chludzinski’s 

reputation to be a snitch or tendency to say anything. 

Importantly, however, Attorney Bolton testified that the 

evidence [at trial] was so overwhelmingly against 

[Appellant] that, even discounting Ms. Chludzinski’s 

testimony in its entirety, the verdict would have been the 

same. For example, [Appellant] was found with the drugs 

in his car, along with the marked bills which were used in 

the controlled buy. There really was no question but that 

[Appellant] was guilty. 
J-S32021-15 

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PCRA Court Opinion, 12/17/2014, at 5. 

 Upon review, we agree. Appellant failed to show he was prejudiced by 

Chludzinski’s trial testimony. In reviewing the trial transcripts, Chludzinski 

was the intermediary between the confidential informant and Appellant; she 

testified that she found customers for Appellant. N.T., 4/13/2010, at 39-42. 

However, the confidential informant testified at trial as an eyewitness to the 

drug transaction that ultimately led to Appellant’s arrest and charges. The 

informant testified that he gave Chludzinski money, she gave the money to 

Appellant, Appellant handed drugs to Chludzinski, and Chludzinski handed 

the drugs to the informant. N.T., 4/12/2010, at 161. Because the 

informant personally witnessed the drug transaction, Chludzinski’s testimony 

in this regard was superfluous. Officer Kirt R. Gindhart testified that he 

executed a search warrant for the vehicle Appellant was driving and found, 

what police initially believed to be, crack cocaine hidden in a shoe inside the 

trunk. Id. at 196-204. In a search incident to arrest, Officer Fred Meyers 

testified that he recovered, from Appellant’s person, the marked currency 

used by the confidential informant in the controlled narcotics purchase. Id.

at 96-107. Based on the foregoing, there was sufficient evidence, without 

Chludzinski’s testimony, to support Appellant’s convictions. Appellant has not 

shown there was a reasonable probability that the result of the proceeding 

would have been different or shown that counsel’s ineffectiveness sufficiently 
J-S32021-15 

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undermined confidence in the verdict. Hence, Appellant’s third and fourth 

issues fail. 

 Next, Appellant claims “trial counsel was ineffective in that she failed 

to conduct a proper or adequate pretrial investigation by failing to interview 

witnesses and failing to investigate the confidential informant.” Appellant’s 

Brief at 7. More specifically, Appellant avers that trial counsel “failed to talk 

to Cody Kostra and Wesley Cain[,]” as potential trial witnesses. Id. 

 Appellant’s claim fails for several reasons. First, the transcript of 

Appellant’s trial reflects that trial counsel interviewed Cody Kostra and called 

him as a witness at trial. See N.T., 4/13/2010, at 112-123. Thus, there is 

no merit to this portion of Appellant’s claim. Next, trial counsel testified at 

the PCRA hearing that Wesley Cain’s testimony would have been cumulative 

of Kostra’s and counsel was concerned that Cain’s history of domestic 

problems, including a bench warrant at the time of trial, made him a poor 

witness. N.T., 4/11/2014, at 16-18. Thus, trial counsel had a reasonable 

basis not to call Cain as a trial witness. Finally, with regard to Appellant’s 

contention that counsel was ineffective for failing to investigate the 

confidential informant, on direct appeal we determined that “the reliability of 

the confidential informant was established by prior accurate information 

furnished to the police and through his or her involvement in the criminal 

activity under investigation in the present case.” Commonwealth v. 

Ingram, 50 A.3d 231 (Pa. Super. 2011) (unpublished memorandum) at 5 
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n.7. As such, there is no merit to Appellant’s contention that counsel was 

ineffective for failing to investigate independently the confidential informant 

before trial. Accordingly, Appellant’s fifth issue fails. 

 Finally, Appellant contends the assistant district attorney in this case 

“has been found to have engaged in prosecutorial misconduct in other 

cases.” Appellant’s Brief at 8. Appellant, however, “cannot demonstrate 

prejudice in the instant case through an alleged violation in a different one.” 

Commonwealth v. Simpson, 66 A.3d 253, 267 n.19 (Pa. 2013). This 

claim fails. 

 Order affirmed. Counsel’s petition to withdraw granted. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/24/2015