Opinion
J-S08005-17 No. 214 WDA 2016
05-19-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. RICKY FIELDS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order dated January 12, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006918-2012 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J. MEMORANDUM BY SOLANO, J.:
Appellant, Ricky Fields, appeals from the order denying his petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. PCRA counsel also filed a petition to withdraw pursuant to Turner/Finley. We affirm and grant PCRA counsel's petition to withdraw.
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).
Appellant was found guilty of possession of a prohibited firearm, carrying firearms without a license, and driving while operating privileges are suspended or revoked. The facts of this case are related in an opinion of the trial court following Appellant's conviction:
18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1) and 75 Pa.C.S. § 1543(a), respectively.
This matter arises out of the arrest on March 4, 2012 of [Appellant] following an encounter between [Appellant] and police officers responding to a call of shots fired in Homestead, Pennsylvania.
[Appellant joined co-defendant's] Motion to Suppress all evidence obtained during the encounter and a hearing was held on December 20, 2012.
At the Suppression Hearing[,] the Commonwealth called Officer James Wintruba of the Homestead Police Department[,] who testified that on March 4, 2012 at approximately 1:00 a.m. he was dispatched to West 15th Avenue in Homestead for a report of numerous shots fired in the area. Officer Wintruba testified that this is a high crime and drug area with numerous reports of shots fired and attempted homicides, as well as a homicide having occurred within the last year.
Officer Wintruba proceeded to an alleyway along the rear of the 300 block of W[est] 15th St[reet]. As he was in the alleyway he observed a silver four door Cadillac parked at an angle on the left side of the street with the brake lights on. The rear of the car was one to two feet from the curb and the front wheels were touching the curb. Officer Wintruba testified that he was using his spotlight to scan the area and as he was passing the Cadillac he ran the spotlight through the windows and saw the occupants slouched down inside the vehicle so low that he could only see the tops of their heads. At that point Officer Wintruba backed his vehicle up and checked on the registration of the vehicle and was informed that the vehicle's registration had been checked four times recently related to possible criminal activity.
Officer Wintruba then decided to watch the vehicle and call for backup. As he was watching the vehicle, all four doors opened simultaneously and four men got out of the vehicle. He noted that the driver was wearing a gray jacket and the passenger directly behind him was wearing a blue coat with a blue shirt and horizontal stripes. The other two passengers were both dressed similarly and were similarly built. Officer Wintruba identified [Appellant] as the driver of the vehicle and Michael Watts as the left
rear passenger. Officer Wintruba testified that after [Appellant] exited the vehicle he then returned to the driver's door and appeared to be locking the door before walking away again. Officer Wintruba testified that because the other two men who were in the vehicle, Duane Alston and Jeffdyn Rushton, were wearing similar clothes and were similarly built he could not tell who had been sitting in the right front seat and who had been in the right rear seat. Officer Wintruba watched the four men walk away and followed them in his vehicle until his partner arrived.Trial Ct. Op., 6/24/13, at 2-4 (footnote and citations to the record omitted; paragraphing added).
At that point, Officer Wintruba approached the men and asked to speak to them. He described them as cooperative and informed them that he was investigating a report of shots fired. He acknowledged that he was talking to them in part to stall for time to allow additional backup to arrive as only he and his partner were present. As he began speaking to them he could smell an overwhelming odor of green fresh marijuana. At that point he told them that he believed they had marijuana in their possession and he would have to check them. Officer Wintruba testified he informed them that they were being detained until he could determine where the marijuana was located and each agreed to be patted down.
Officer Wintruba further testified, as follows:
Q. You said they were detained at that point, by that you mean they were handcuffed?
A. They were handcuffed around then. . . . They weren't handcuffed when I said I smelled marijuana. At that point I believe they were all handcuffed. Once again, there were four of them and two of us. It came across the radio that back-up wouldn't be available for some time.
. . .
They would have been against the wall, and they were very relaxed.
Q. Did you tell them to go to the wall?N.T., 12/20/12, at 35-36. The trial court's opinion continues:
A. We were in that area, and I explained that since there were two of us that we were going to have to handcuff them.
[Officer Wintruba] also asked them for identification. [Appellant] produced a Pennsylvania identification card which, when checked, came back as showing [Appellant] having his driving license suspended. [Appellant] was asked if anyone else in the vehicle had a driver's license and [Appellant] then became very nervous and said he would call his girlfriend to drive the car and then said he would drive the car himself.Trial Ct. Op., 6/24/13, at 4-5 (citations to the record omitted). Appellant "was placed in" the police vehicle. N.T., 12/20/12, at 18. Officer Wintruba "transported [Appellant] and Rushton in [his] police car less than a block back to where the car was parked." Id. The opinion continues:
When Michael Watts was asked for identification he could not produce any identification but instead identified himself as Michael Dickerson and gave a date of birth. When that information was checked and came back with no record, Mr. Watts then became argumentative as the officers tried to obtain more information regarding his identity. It was then determined that he was wearing an ankle bracelet with an electronic monitor on it at which point he was placed in the rear of one of the police vehicles. Alston produced identification and was released from the scene. Rushton was searched and found in possession of marijuana and was placed under arrest.
At that point Officer Wintruba told [Appellant] that his vehicle would have to be towed as no one could drive the vehicle and was asked if he would consent to it being searched. [Appellant] denied having the keys but when told that he was seen locking the driver's door, [Appellant] then said that he lost the keys and he couldn't find them.
Officer Wintruba then approached the vehicle and looked inside using the light from the nearby street light and saw a handgun sitting on the floor boards of the right rear seat. After seeing the gun[,] Officer Wintruba return to the vehicle and asked [Appellant] and Rushton if they had ever been arrested before and if they had ever been convicted of felonies. Both said they had felony convictions and[, after being asked by Officer Wintruba, "Are you guys allowed to have any guns," N.T., 12/20/12, at 19,] acknowledged they were not allowed to possess firearms. At that point Officer Wintruba returned to the vehicle and, using his flashlight, looked through the passenger window and saw the magazine and the butt of the handle of a firearm projecting from underneath the front seat on the driver's side. He then opened the right rear door and retrieved the handgun, a Ruger, from the floor in front of the right rear seat and then went to the other side of the vehicle and retrieved the second handgun, a Glock, from under the driver's seat. All four men were subsequently arrested and charged with possession of firearms.Trial Ct. Op., 6/24/13, at 5 (citations to the record omitted).
Based on the testimony of Officer Wintruba the Motion to Suppress was denied. The case then immediately proceeded to a nonjury trial and Officer Wintruba's testimony was incorporated as his trial testimony. On cross examination Officer Wintruba acknowledged that Mr. Watts was seated in the left rear passenger seat and that the handgun was on the right center side of the vehicle. He also acknowledged that he didn't see any furtive movement from any of the occupants of the vehicle because they were slouched down so low he could only see the tops of their heads. He also acknowledged that the gun in the front of the car was directly under the front seat.
After Officer Wintruba's testimony, the Commonwealth moved into evidence a certified conviction for possession with intent to deliver a controlled substance and a certified firearms license form showing that Appellant did not have a valid license to carry a firearm. Commonwealth Exs. 7-8; N.T., 12/20/12, at 74. The trial court admitted these exhibits without objection by Appellant. Id.
Also relevant to Appellant's PCRA contentions, the Commonwealth stated the following during closing arguments:
They can't be in the presence of a gun regardless of whether it's their gun or someone else's gun. Because of that, Your Honor, I feel we have met our burden beyond a reasonable doubt, and I believe the presence of the guns in plain view meets that burden of proof.N.T., 12/20/12, at 88.
On December 20, 2012, following a bench trial, Appellant was found guilty of the firearms charges and of driving while operating privileges are suspended or revoked. Appellant was sentenced to four to eight years' confinement.
Appellant filed a direct appeal challenging, among other things, that the trial court should have suppressed the seized evidence because the police lacked any basis to detain him and the inventory search of the vehicle was invalid. This Court held that Appellant waived these two issues because, instead of filing his own motion to suppress based on the facts and arguments specific to him, he joined his co-defendant's motion to suppress, which was based on different facts and raised arguments peculiar to that co-defendant. Commonwealth v. Fields , 94 WDA 2013, at 6 (Pa. Super., Nov. 12, 2013), appeal denied , No. 542 WAL 2013, 89 A.3d 660 (Pa., Apr. 4, 2014). Further, Appellant's then-trial counsel also did not present any arguments or question any witness at the suppression hearing. Id. This Court addressed Appellant's preserved challenge to the sufficiency of the evidence and affirmed.
On July 1, 2014, Appellant filed a timely pro se PCRA petition. On August 12, 2014, PCRA counsel entered his appearance for Appellant, and on October 8, 2014, he filed an amended PCRA petition. After holding a hearing, on January 12, 2016, the PCRA court denied Appellant's PCRA petition. Appellant timely appealed on February 11, 2016.
Appellant's judgment of sentence became final on July 3, 2014, when the 90-day time period for filing an appeal to the United States Supreme Court expired. See U.S. Sup. Ct. R. 13; 42 Pa.C.S. § 9545(b)(3). His PCRA petition hence was timely, and this Court therefore has jurisdiction over the appeal from his petition. See 42 Pa.C.S. § 9545(b)(1) (petition must be filed no later than one year after judgment of sentence became final); Commonwealth v. Hernandez , 79 A.3d 649, 651 (Pa. Super. 2013).
On November 29, 2016, PCRA counsel filed a Turner/Finley letter and brief with this Court, along with a motion to withdraw as counsel. Appellant did not file a pro se or counseled response to the Turner/Finley letter.
In his Turner/Finley brief, PCRA counsel raises the following appellate issues on Appellant's behalf:
1. Whether trial counsel gave ineffective assistance for failing to properly raise the claim that the statement by Appellant should have been suppressed pursuant to Miranda v. Arizona [, 384 U.S. 436 (1966)]?
2. Whether trial counsel gave ineffective assistance for failing to properly argue that the evidence should be suppressed in violation of Article 1, Section 8 of the
Pennsylvania Constitution and the Fourth Amendment when Appellant was subject to an illegal arrest?Turner/Finley Brief at 7.
3. Whether trial counsel gave ineffective assistance for failing to properly argue that the evidence should be suppressed in violation of Article 1, Section 8 of the Pennsylvania Constitution and the Fourth Amendment when police illegally seized Appellant's vehicle?
4. Whether trial counsel gave ineffective assistance for failing to object to prosecutor's argument that the Commonwealth was not required to prove possession or constructive possession?
Our standard of review of a PCRA court's denial of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the record evidence and free of legal error. Commonwealth v. Wilson , 824 A.2d 331, 333 (Pa. Super. 2003) (en banc). Before we review Appellant's claim, however, we must ascertain whether PCRA counsel satisfied the requirements to withdraw:
The Turner/Finley decisions provide the manner for post-conviction counsel to withdraw from representation. The holdings of those cases mandate an independent review of the record by competent counsel before a PCRA court or appellate court can authorize an attorney's withdrawal. The necessary independent review requires counsel to file a "no-merit" letter detailing the nature and extent of his review and list each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, see Turner , supra, then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit. See [ Commonwealth v.] Pitts [, 603 Pa. 1, 3 n.1, 981 A.2d 875, 876 n.1 (2009)].
In Commonwealth v. Friend , 896 A.2d 607 (Pa. Super. 2006)[,] abrogated in part by Pitts , supra, this Court imposed additional requirements on counsel that closely track the procedure for withdrawing on direct appeal. Pursuant to Friend , counsel is required to contemporaneously serve upon his client his no-merit letter and application to withdraw along with a statement that if the court granted counsel's withdrawal request, the client may proceed pro se or with a privately retained attorney. Though Chief Justice Castille noted in Pitts that this Court is not authorized to craft procedural rules, the Court did not overturn this aspect of Friend as those prerequisites did not apply to the petitioner in Pitts. See Pitts , supra at 881 (Castille, C.J., concurring).Commonwealth v. Freeland , 106 A.3d 768, 774-75 (Pa. Super. 2014).
After the decision in Pitts , this Court held in Commonwealth v. Widgins , 29 A.3d 816 (Pa. Super. 2011), that the additional procedural requirements of Friend were still applicable during collateral review.
Here, we conclude that PCRA counsel's Turner/Finley no-merit letter complies with all of these requirements. See Freeland , 106 A.3d at 774-75. Accordingly, we conduct our own independent evaluation of the record to ascertain whether we agree with PCRA counsel that Appellant is not entitled to relief. See id.
All four issues raised by Appellant are claims of ineffective assistance of counsel. To obtain relief under the PCRA premised on a claim that counsel was ineffective, a petitioner must demonstrate the following: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) petitioner was prejudiced by counsel's act or omission. See Commonwealth v. Pierce , 527 A.2d 973, 975 (Pa. 1987). In this context, a finding of "prejudice" requires the petitioner to show "there is a reasonable probability that, but for the error of counsel, the outcome of the proceeding would have been different." Commonwealth v. Stevens , 739 A.2d 507, 512 (Pa. 1999); see also Commonwealth v. Simpson , 66 A.3d 253, 260 (Pa. 2013) ("the petitioner was prejudiced — that is, but for counsel's deficient stewardship, there is a reasonable likelihood the outcome of the proceedings would have been different"). "If a petitioner fails to prove any of these prongs, his claim fails." Id. Where "the underlying claim is meritless, the derivative claim of ineffective assistance of counsel for failing to object has no arguable merit." Commonwealth v. Spotz , 47 A.3d 63, 122 (Pa. 2012). "[C]ounsel cannot be considered ineffective for failing to pursue a meritless claim." Commonwealth v. Lopez , 739 A.2d 485, 495 (Pa. 1999), cert. denied , 530 U.S. 1206 (2000).
We first address the merits of Appellant's claim that he was improperly interrogated in violation of Miranda v. Arizona , 384 U.S. 436 (1966). Turner/Finley Brief at 8-12. Specifically, PCRA counsel challenges Officer Wintruba's inquiries about Appellant's prior arrests, prior felony convictions, and ability to own firearms, while Appellant was handcuffed and after he had been patted down by police. Turner/Finley Brief at 11; see also N.T., 12/20/12, at 19, 35-36; Trial Ct. Op., 6/24/13, at 4-5. PCRA counsel alleges that this claim had merit, but "[a]t the trial, the Commonwealth presented a stipulation that Appellant had been convicted of possession with the intent to deliver, a felony, which would bar him from possessing a firearm. Therefore, Appellant cannot prove actual prejudice." Turner/Finley Brief at 12.
We are unable to locate in the notes of testimony the "stipulation" referenced by counsel, but those notes do show that Appellant's certified conviction for possession with intent to deliver a controlled substance and a certified firearms license form showing that Appellant did not have a valid license to carry a firearm were both moved into evidence by the Commonwealth and admitted by the trial court without objection by Appellant. See Commonwealth Exs. 7-8; N.T., 12/20/12, at 74. In light of this evidence, Appellant could not prove prejudice.
In addition, we conclude that Appellant's Miranda argument lacks arguable merit. "In a Terry stop,[] the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." Commonwealth v. Chase , 960 A.2d 108, 120 (Pa. 2008) (citation and internal quotation marks omitted). Thus, the simple act of a police officer stopping an individual and asking him or her for basic biographical information is permissible. See id. More in-depth interrogation, however, requires a deeper analysis:
A " Terry stop" is "[a]n investigative detention [that] occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes." Commonwealth v. Barber , 889 A.2d 587, 592 (Pa. Super. 2005). "Such a detention constitutes a seizure of a person and thus activates the protections of the Fourth Amendment and the requirements of Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)." Barber , 889 A.2d at 592. It must be supported by "reasonable suspicion that the person seized is then engaged in unlawful activity." Id. at 593.
It is a fundamental precept of constitutional law that a suspect subject to a custodial interrogation by police must be warned that he has the right to remain silent, that anything he says may be used against him in court, and that he is entitled to the presence of an attorney. Miranda , 384 U.S. at 469, 86 S.Ct. 1602. If an individual is not advised of those rights prior to a custodial interrogation, any evidence obtained through the interrogation is inadmissible at trial. In re K.Q.M., 873 A.2d 752, 755 (Pa.Super.2005). The Miranda safeguards are triggered "whenever a person in custody is subjected to either express questioning or its functional equivalent." Rhode Island v. Innis , 446 U.S. 291, 292, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) . . . (defining interrogation to include express questioning and its functional equivalent).Commonwealth v. Freeman , 128 A.3d 1231, 1240 (Pa. Super. 2015).
In Commonwealth v. Rosas , 875 A.2d 341, 348 (Pa. Super. 2005), appeal denied , 897 A.2d 456 (Pa. 2006), we held that, "for their safety, police officers may handcuff individuals during an investigative detention." In Commonwealth v. Guillespie , 745 A.2d 654, 660-61 (Pa. Super. 2000), we determined that the act of handcuffing suspects during an investigatory detention "was merely part and parcel of ensuring the safe detaining of the individuals during the lawful Terry stop," and we could not "find that the officer's detention of Guillespie and the fact that he was placed in handcuffs immediately rose to the level of an unwarranted custodial detention."
In Commonwealth v. Pakacki , 901 A.2d 983, 988 (Pa. 2006), a police officer conducted a pat-down and "felt an object in the defendant's left front pants pocket; he asked what it was, and the defendant responded it was 'chronic,' which the officer knew to be a street term for marijuana." The Supreme Court of Pennsylvania held that this pat-down search was not the functional equivalent of an arrest and that pat-down searches do not place a suspect in custody for Miranda purposes.
In Commonwealth v. Revere , 888 A.2d 694 (Pa. 2005), the Supreme Court of Pennsylvania was "persuaded that a hard and fast rule that would equate placing a suspect in a police vehicle and transporting him with an arrest requiring probable cause, in all instances, would be an arbitrarily crabbed view of Terry ." Id. at 706 (footnote omitted). "[T]here is no hard and fast rule which prohibits the movement of suspects during the course of an investigative detention." Id. at 703-04.
Instantly, we focus our discussion upon whether Appellant was "in custody" for Miranda purposes at the time of his statement. According to Officer Wintruba, he handcuffed the suspects because there were four suspects and only two officers, as back-up would not be available for some time. N.T., 12/20/12, at 35. They were also in a high-crime area, late at night. Trial Ct. Op., 6/24/13, at 2-3.
Since being handcuffed for purposes of officers' safety, being patted down, and being transported are insufficient to establish that a defendant was in custody at the time that he was questioned by police, we hold that Appellant was not in custody so as to require Miranda warnings. See Pakacki , 91 A.2d at 988; Revere , 888 A.2d at 703-04, 706; Rosas , 875 A.2d at 348; Guillespie , 745 A.2d at 660-61. Accordingly, his Miranda challenge is meritless, and "counsel cannot be considered ineffective for failing to pursue a meritless claim." Lopez , 739 A.2d at 495. Thus, we disagree with PCRA counsel's contention that Appellant's underlying Miranda claim had merit.
Appellant's next claims that trial counsel gave ineffective assistance for failing to argue that evidence stemming from Appellant's allegedly illegal arrest should be suppressed. Turner/Finley Brief at 12-13. According to Appellant, this "illegal arrest" occurred when Appellant was detained "to determine who had the marijuana," handcuffed, and subjected to a "'pat down' search." Id. (citing N.T., 12/20/12, at 35-36). For the reasons explained above, Appellant was neither in custody nor arrested at this time. See Pakacki , 91 A.2d at 988; Revere , 888 A.2d at 703-04, 706; Rosas , 875 A.2d at 348; Guillespie , 745 A.2d at 660-61. Thus, Appellant's illegal arrest claim is meritless, as is his derivative ineffective assistance of counsel claim. Lopez , 739 A.2d at 495.
Appellant further claims that trial counsel gave ineffective assistance by not properly arguing that evidence stemming from Appellant's motor vehicle search - specifically, the firearm - should be suppressed. Turner/Finley Brief at 13-14.
Our review of the record discloses that in Appellant's direct appeal, trial counsel did argue that the search of Appellant's vehicle and the seizure of the handguns within it were invalid and that the firearms should thus be suppressed. Trial Ct. Op., 6/24/13, at 2. Appellant's PCRA claim on this issue therefore is without merit. In addition, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned direct appeal opinion of the Honorable Randal B. Todd dated June 24, 2013, we conclude that no relief is due on this issue because there was no proper basis for suppression. See Trial Ct. Op., 6/24/13, at 11-13 (finding: pursuant to Commonwealth v. Liddie , 21 A.3d 229, 233-34, 236 (Pa. Super. 2011) (en banc), that a warrantless search of a vehicle is justified and the evidence seized therefrom should not be suppressed when the officer observed the vehicle from a lawful vantage point, the incriminating nature of the evidence was immediately apparent, and probable cause arose suddenly and without any advance warning that the defendant or his vehicle would be the target of an investigation; here, the testimony demonstrated that the firearms were in plain view when Officer Wintruba approached the vehicle and were seized pursuant to this limited exception). Accordingly, with respect to Appellant's third issue raised in this current appeal, we affirm on the basis of the trial court's direct appeal opinion.
On direct appeal, this Court held that Appellant's challenge to the trial court's failure to suppress evidence that Appellant claimed was the fruit of illegal searches and seizures was waived. Fields , 94 WDA 2013, at 5. The trial court's analysis of this claim nevertheless is applicable to the substantive issue underlying Appellant's third ineffective assistance of counsel challenge for the instant collateral appeal. --------
Finally, Appellant claims that trial counsel was ineffective for failing to object to the Commonwealth's closing argument, alleging that the Commonwealth had improperly stated the law about possession. To prove ineffective assistance of counsel, a petitioner must show that he was prejudiced by counsel's act or omission. Pierce , 527 A.2d at 975. In Commonwealth v. McFadden , 156 A.3d 299, 309 (Pa. Super. 2017), we wrote, "This was a bench trial, and a trial court acting as the fact-finder is presumed to know the law, ignore prejudicial statements, and disregard inadmissible evidence" (emphasis added; citation and internal quotation marks omitted). Appellant had a non-jury trial; thus, in the current action, the trial court is also presumed to have known the law and to have ignored any inaccurate statements about the law made by either counsel. See id. Hence, Appellant has failed to demonstrate prejudice and, therefore, cannot establish ineffective assistance of counsel. See Pierce , 527 A.2d at 975.
For the reasons stated above, we affirm the PCRA court's order. Because, for Appellant's third issue on appeal, we affirm partly on the basis of the trial court's opinion of June 24, 2013, the parties are instructed to attach a copy of the trial court's opinion of June 24, 2013, to all future filings. We also grant PCRA counsel's petition to withdraw.
Petition to withdraw granted. Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/19/2017