Jason Robert Kelley appeals the denial of his first petition under the Post Conviction Relief Act (PCRA), which was filed timely and followed a hearing on October 12, 2021. Kelley claims ineffective assistance of trial counsel for failing to investigate the procedures of the Adams County Drug Task Force (ACDTF) regarding the use of a female confidential informant (CI). The appeals court concluded that trial counsel had a reasonable basis for their actions and that Kelley did not demonstrate any prejudice from this alleged ineffectiveness.
The ACDTF's operations involved a female CI who arranged a heroin purchase from Ira Trivitt via Facebook Messenger at a Sheetz convenience store in New Oxford, Pennsylvania, using marked currency. The CI identified Kelley as Trivitt's drug supplier, having seen him in Trivitt's vehicle during the transaction. After further interactions, the CI met with Kelley at the same location to buy heroin, which was confirmed to be a controlled substance through testing. Kelley was subsequently convicted of three counts of delivering a controlled substance and one count of criminal conspiracy, receiving a five to ten-year prison sentence.
Following the conviction, Kelley filed a notice of appeal, which was affirmed by the court. Six months later, he filed a pro se PCRA petition, leading to the appointment of counsel and a hearing that ultimately dismissed his claims. Kelley's appeal reiterated his trial counsel's alleged ineffectiveness for not investigating ACDTF procedures and for not cross-examining witnesses about these procedures. The appellate court emphasized its limited review of the PCRA court’s findings and legal conclusions, affirming the dismissal based on the lack of evidence supporting Kelley's claims.
Petitioner Kelley asserts ineffective assistance of counsel, requiring proof of three elements: 1) the underlying claim must have arguable merit; 2) there must be no reasonable basis for counsel's actions or inactions; and 3) the petitioner must show prejudice stemming from the counsel's errors. To demonstrate a lack of reasonable basis, Kelley must establish that an alternative strategy had a significantly greater chance of success than what was pursued. On the prejudice aspect, Kelley needs to show a reasonable probability that the case's outcome would have been different without counsel's errors. Counsel is presumed effective, and failing to satisfy any of the three prongs results in a claim rejection.
Kelley criticizes his trial counsel for not adequately investigating the policies of the ACDTF regarding the use of confidential informants (CIs), claiming this prevented the jury from understanding key aspects of the sting operation leading to his arrest. He acknowledges that only extreme circumstances could lead to a due process violation in criminal investigations and notes that courts typically do not find due process violations without significant police involvement in criminal activities.
Kelley highlights Detective Anthony Gilberto's testimony, which revealed that he was the sole ACDTF member present during the CI’s search and transaction, raising questions about the adequacy of protocols. Despite this, the detective admitted that ACDTF lacked written protocols for CI searches. Kelley argues that such absence of guidelines constitutes outrageous conduct justifying a due process violation. At the PCRA hearing, trial counsel stated difficulty in obtaining ACDTF protocols, indicating that while efforts would be made, success was unlikely. Counsel expressed a desire to question general policies during cross-examination but ultimately believed that having the protocols would not have altered the trial outcome based on the evidence presented.
The lower court determined that Kelley’s counsel conducted a reasonable investigation into the procedures of the ACDTF, although it was ultimately unproductive. The court ruled that any failure to investigate further did not prejudice Kelley. The Commonwealth acknowledged that the ACDTF lacked specific protocols for searches involving female confidential informants (CIs) but emphasized that no legal requirement mandates written policies for drug task forces using CIs. While it would be prudent for the ACDTF to adopt such guidelines, Kelley did not prove that the absence of a written plan rendered the CI’s use legally invalid. The court highlighted that Kelley’s ineffective assistance claim lacked merit because trial counsel had no written policies to obtain and had questioned a Detective who confirmed the absence of such policies during cross-examination.
Kelley’s claims against his counsel were vague, lacking specific areas where further questioning could have been beneficial. The court concluded that counsel's actions were reasonable given the circumstances, and Kelley failed to demonstrate any prejudice resulting from counsel’s performance. Thus, the court affirmed the dismissal of Kelley’s PCRA petition, with judgment entered on 09/02/2022.
