Opinion
1624 EDA 2021 J-S18004-23
08-14-2023
COMMONWEALTH OF PENNSYLVANIA v. JOSEPH BUFORD Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered July 9, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0014415-2014
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.[*]
MEMORANDUM
PANELLA, P.J.
Joseph Buford appeals from the order entered in the Philadelphia County Court of Common Pleas on July 9, 2021, dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541-9546. On appeal, Buford argues the PCRA court erred in finding trial counsel was not ineffective. We find the record supports the PCRA court's decision. Accordingly, we affirm.
On September 17, 2015, a hearing was held on Buford's omnibus pretrial motion to suppress evidence recovered from his truck after a traffic stop. Philadelphia Police Officer Brian Rosenbaum testified that he was on routine patrol on December 9, 2014, when he observed a black Chevy Avalanche with tinted windows. See N.T., 9/17/15, at 7-8. The front driver's side and passenger's side windows were tinted to such a degree that Officer Rosenbaum could not see inside the vehicle. Accordingly, Officer Rosenbaum stopped the vehicle for a suspected violation of the motor vehicle code. See id. at 11.
Officer Rosenbaum approached the vehicle and asked Buford for his license and registration. See id. Officer Rosenbaum immediately smelled unburnt marijuana and observed unused narcotics packaging and a metal cylinder used for breaking up marijuana inside the vehicle. See id. As a result, Officer Rosenbaum asked Buford to exit the vehicle and placed him in the back of the patrol car for safety and to perform a brief search of the vehicle. See id. at 11-12. During the search, Officer Rosenbaum noticed the front of the cup holders was loose. See id. at 12. After moving the top of the cup holder, Officer Rosenbaum observed a revolver which was recovered and placed into evidence. See id.
Officer Rosenbaum testified that, at the time of the hearing, he had been a police officer for 8 years. See id. As part of his job, he has smelled marijuana "almost every day." See id. at 13. He has also seen narcotics packaging, as well as metal cylinders used to grind up marijuana "numerous times." See id. at 13-14.
On cross-examination, defense counsel showed Officer Rosenbaum three photographs of a black Chevy Avalanche that did not have any tint on the front driver's side and passenger's side windows. See id. at 19-20. Officer Rosenbaum acknowledged the vehicle in the pictures was a black Chevy Avalanche, but was unsure if the vehicle in the photographs was the same vehicle that he stopped. See id. at 20. There were no defining characteristics included in the photographs that would identify it as the same vehicle Officer Rosenbaum stopped, including the license plate number, a VIN number, or anything else. See id. at 22-23. Buford testified that the three photographs contained images of the same black Chevy Avalanche that he was driving on the date of his arrest. See id. at 26. He acknowledged that there was no date on the photographs. See id.
As part of its findings of facts, the trial court noted several differences in the vehicles displayed in the three photographs, including different color door handles, different hubcaps, different Chevrolet insignias, and different color side view mirrors. See id. at 30-31. Based on these observed differences, the trial court concluded that none of the three photographs showed the same vehicle. See id. at 31. The trial court discredited Buford's testimony and instead credited Officer Rosenbaum's testimony in full. See id. Accordingly, the trial court denied the motion to suppress. See id.
After the suppression hearing, Buford agreed to immediately proceed to a bench trial. See id. at 35-37. All relevant and admissible evidence from the suppression hearing was incorporated into the trial by agreement of the parties. See id. at 38. A stipulation was entered that the firearm found in the vehicle was operable, Buford did not have a valid license to carry a firearm in Pennsylvania, and that Buford is prohibited from carrying a firearm. See id. Both sides thereafter rested their cases, and the trial court found Buford guilty of three firearms violations and possession of drug paraphernalia.
The trial court subsequently sentenced Buford to an aggregate term of five years and one day to seventeen years' incarceration. We affirmed the judgment of sentence on direct appeal. See Commonwealth v. Buford, 3805 EDA 2015 (Pa. Super. filed June 6, 2017) (unpublished memorandum).
On December 21, 2017, Buford filed a pro se PCRA petition. After initial PCRA counsel withdrew from the case, due to leaving the practice of criminal law, the PCRA court appointed new counsel, who filed an amended petition on February 7, 2020, followed by a supplemental amended petition on June 26, 2020. After consideration of a motion to dismiss filed by the Commonwealth and Buford's responses, the PCRA court issued notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. The PCRA court subsequently dismissed the petition. This timely appeal followed.
"The standard of review for an order denying post-conviction relief is limited to whether the record supports the PCRA court's determination, and whether that decision is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record" Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation omitted).
Generally, "[t]he PCRA court may dismiss a petition without a hearing when the court is satisfied that there are no genuine issues concerning any material fact, the defendant is not entitled to post conviction collateral relief, and no legitimate purpose would be served by any further proceedings." Commonwealth v. Johnson, 139 A.3d 1257, 1273 (Pa. 2016) (citation and internal quotation mark omitted). When the PCRA court denies a petition without an evidentiary hearing, we "examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing." Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004) (citation omitted).
Buford raises a claim of ineffective assistance of trial counsel. We presume counsel is effective, and Buford bears the burden to prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012). The test for ineffective assistance of counsel is the same under both the Federal and Pennsylvania Constitutions. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Commonwealth v. Kimball, 724 A.2d 326, 330-332 (Pa. 1999). Buford must demonstrate: (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different. See Commonwealth v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. See id. at 1163.
Buford alleges that trial counsel was ineffective for failing to introduce the proper photographs during the suppression hearing. Specifically, Buford argues trial counsel should have presented photographs and documents generated by Buford's insurance adjuster that would have showed his vehicle did not have tinted windows in the front windows.
We begin by noting that Buford failed to proffer evidence, or even allege, that trial counsel knew of, or should have known, about the insurance adjuster photographs that were taken four months prior to the instant arrest, in response to a completely unrelated accident. On the contrary, Buford himself provided the "incorrect" photographs that the court found did not depict Buford's vehicle. Buford admits to asking a friend to take photographs of his vehicle and providing the three photographs in question to his counsel to present at the suppression hearing. Further, while under oath at the suppression hearing, Buford identified the photographs as his own truck. See N.T., 9/17/15, at 25-26. Under these circumstances, we cannot fault the PCRA court for concluding that there is no arguable to the claim trial counsel should have presented other photographs of Buford's truck.
Further, even if we were to assume, arguendo, that there is arguable merit to Buford's claim, we conclude Buford has failed to establish the third prong of the ineffectiveness test, prejudice, for this claim. To establish prejudice, Buford was required to establish that "there was a reasonable probability of a different outcome if not for counsel's error." Commonwealth v. Medina, 209 A.3d 992, 1000 (Pa. Super. 2019) (citation omitted). The condition of the truck four months prior to the relevant arrest would prove nothing about the condition of the truck at the time of the arrest. Even if the truck did not have window tint in August 2014, Buford could have installed window tint any time in the next four months. As a result, Buford has not established he was prejudiced by counsel's alleged error.
As we can find no error in the PCRA court's conclusion, we affirm the PCRA court's dismissal of Buford's petition.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.