Opinion
J-S66007-15 No. 1466 WDA 2014
12-09-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. WELDON FELLS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order August 7, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015704-2011 BEFORE: OLSON, STABILE and STRASSBURGER, JJ. MEMORANDUM BY OLSON, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Weldon Fells, appeals pro se from the order entered on August 7, 2014, dismissing his petition filed under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously explained the underlying facts of this case:
Appellant was charged with retail theft and two violations of the Uniform Firearms Act: persons not to possess firearms and carrying a firearm without a license. His pretrial motions to dismiss pursuant to [Pennsylvania Rule of Criminal Procedure] 600 and to suppress evidence were denied following a hearing on May 7, 2012, and Appellant was [subsequently found] guilty of all charges. . . .
A pre-sentence investigation report was ordered and Appellant appeared before [the trial court for sentencing on] July 31, 2012. At that time, [Appellant] was sentenced to a
term of imprisonment of [five to ten] years on the possession charge. . . .
Briefly, a review of the evidence presented at trial established that[,] on April 8, 2011, Appellant was shopping at Home Depot when Joshua Wright, a Home Depot Loss Prevention Associate, observed Appellant put a package of curtains into a tote bag he was carrying and zip the bag closed. Appellant then went to the cash register where he paid for a curtain rod he was carrying but did not reveal the curtains to the cashier or pay for them. Once [Appellant] exited the store, [] Wright stopped [Appellant], identified himself and asked [Appellant] to return to the store. Appellant produced the curtains from the bag and gave them to [] Wright, but refused to go back inside. Eventually[,] Appellant was convinced to re-enter the store, and was taken to the manager's office where he waited with Wright and Wright's supervisor[] for the police to come. . . .
[Wright] asked Appellant for identification and for permission to look into the bag but Appellant refused. Once the police arrived, Wright took the bag from Appellant and opened it himself. There was no other merchandise in the bag but [Wright] did find a gun. Although [Wright] told Officer Miles he found a gun, Officer Miles testified that he was able to see inside the bag when it was opened and saw the gun himself. Appellant then exclaimed that he carried the gun for protection. The Commonwealth introduced evidence of Appellant's prior conviction for robbery and his non-licensure to carry a concealed weapon. . . .
[On direct appeal to the Superior Court,] Appellant raise[d] the following issues of [] review:
I. Did the court err in denying the requested Rule 600 relief where more than 365 days passed before trial was commenced and that time was not attributable to Appellant?
II. Did the court err in denying the motion to suppress where a zippered back pack was opened under the supervision of police officers absent a warrant and in violation of the United States and Pennsylvania Constitutions?
Commonwealth v. Fells , 81 A.3d 1010 (Pa. Super. 2013) (unpublished memorandum) at 1-3 (internal corrections and quotations omitted) (some internal citations, footnotes, and capitalization omitted), appeal denied, 81 A.3d 75 (Pa. 2013).III. Was the evidence of possession of a firearm insufficient to convict where the Commonwealth failed to produce any evidence of the bag in which the firearm was alleged to have been found?
18 Pa.C.S.A. §§ 3929(a)(1), 6105(a)(1), and 6106(a)(1), respectively.
On May 31, 2013, we concluded that Appellant's three claims failed on their merits and we thus affirmed Appellant's judgment of sentence. Specifically, we held that: Appellant's Rule 600 claim failed because "Appellant [was] clearly responsible for [] 36 days of delay [prior to trial], which[,] when the[ excludable time was] subtracted from [the total, 396 days that elapsed from when the criminal complaint was filed until trial occurred,] result[ed] in Appellant's having been brought to trial within . . . the 365 days permitted by Rule 600;" Appellant's suppression claim failed because the private security guard, Mr. Wright, "conducted the search [of Appellant's bag] without any direction from Officer Miles . . . [and] Mr. Wright was not acting under the color of state authority when he searched Appellant's bag;" and, Appellant's sufficiency of the evidence claim failed because the evidence established that Appellant possessed a firearm and Appellant was neither licensed nor permitted to carry such a firearm. Id. at 1-22.
Our Supreme Court denied Appellant's petition for allowance of appeal on November 26, 2013. Id.
On June 12, 2014, Appellant filed a timely pro se PCRA petition and the PCRA court appointed counsel to represent Appellant. However, on July 10, 2014, appointed counsel filed a "no merit" letter and a petition to withdraw as counsel, pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).
On July 14, 2014, the PCRA court entered an order granting counsel's petition to withdraw and notifying Appellant that it intended to dismiss Appellant's PCRA petition in 20 days, without holding a hearing. PCRA Court Order, 7/14/14, at 1; see also Pa.R.Crim.P. 907(1). On August 7, 2014, the PCRA court finally dismissed Appellant's PCRA petition.
Appellant filed a timely, pro se notice of appeal on September 3, 2014. Appellant raises the following claims on appeal:
[1.] Was Appellant denied Pennsylvania and United States Constitution Rights, Article 1, §§ 8 & 9 and Due Process Clause respectively, to have trial counsel's effective assistance to law of the land, for a [speedy] trial, to have accusation investigated, and requested witnesses?
[2.] Was Appellant denied Pennsylvania and United States Constitution Rights, Article 1, §§ 8 & 9 and Due Process Clause respectively, to have trial counsel's effective assistance to law of the land, for a speedy trial, to demand the nature of accusation, and to confront the witnesses against him?
[3.] Was Appellant denied Pennsylvania and United States Constitution Rights, Article 1, §§ 8 & 9 and Due Process Clause respectively, to have trial counsel's effective assistance to law of the land, to be protected against prosecutorial misconduct of false and misleading statements or fraud on the court?Appellant's Brief at 19, 23, 28, and 33 (internal emphasis omitted).
[4.] Was Appellant denied Pennsylvania and United States Constitution Rights, Article 1, §§ 8 & 9 and Due Process Clause respectively, to have trial counsel's effective assistance to law of the land, to demand cause of the accusation, and to be secure from unreasonable searches?
[5.] Was Appellant denied Pennsylvania and United States Constitution Rights, Article 1, §§ 8 & 9 and Due Process Clause respectively, to have trial counsel's effective assistance to law of the land to be heard by himself, and to challenge the imposed sentence?
We have reviewed the briefs of the parties, the relevant law, the certified record, and the well-written and thorough opinion from the able PCRA court judge, the Honorable Donna Jo McDaniel. We conclude that the claims raised in Appellant's brief fail and that Judge McDaniel's opinion, filed on May 20, 2015, meticulously and accurately explains why Appellant's claims fail. Therefore, we adopt the PCRA court's opinion as our own. In any future filings with this or any other court addressing this ruling, the filing party shall attach a copy of the PCRA court's opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/9/2015
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