Opinion
J-S70041-13 No. 1548 EDA 2013
04-29-2014
COMMONWEALTH OF PENNSYLVANIA Appellee v. DENNIS FREDERICK MADDREY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order of May 20, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0008761-2009
BEFORE: GANTMAN, J., OLSON, J., and WECHT, J. MEMORANDUM BY WECHT, J.:
Dennis Frederick Maddrey ("Maddrey") appeals, pro se, from the May 20, 2013 order dismissing his petition for relief pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. We affirm.
The PCRA court aptly has summarized the factual and procedural history of this case as follows:
[Maddrey] was convicted of six counts of criminal conspiracy, eight counts of robbery, [one count of] simple assault, eight counts of terroristic threats, seven counts of theft by unlawful taking[,] and [one count of] attempted theft for his role in a string of armed robberies, which occurred in Cheltenham and Abington Townships, Montgomery County, [Pennsylvania] during August of 2009.PCRA Court Opinion ("P.C.O."), 6/28/2013, at 1-3.
On August 28, 2009, [Maddrey] was apprehended in Philadelphia County by Abington Township police after an attempted robbery. [Maddrey waived] his Miranda rights and provided a voluntary statement to police. Police also executed a search warrant on [Maddrey's] white conversion van used during the armed robberies.
On February 18, 2010, [Maddrey] filed a motion to suppress, which went to a hearing on December 12, 2010. After an extensive hearing, argument on the motion to suppress was held on December 13, 2010. At the conclusion of argument, [the trial court] placed its findings of fact and conclusions of law on the record and denied the motion.
On December 17, 2010, [Maddrey] proceeded to a stipulated bench trial and was found guilty of the aforementioned charges. On March 31, 2011, [Maddrey] was sentenced to an aggregate term of 20 to 40 years' imprisonment. A petition to reconsider sentence was filed April 7, 2011, which was denied on April 18, 2011. A timely direct appeal was filed.
On June 29, 2012, the Pennsylvania Superior Court affirmed [Maddrey's] judgment of sentence.[ Maddrey's] Petition for Allowance of Appeal was denied [by the Pennsylvania Supreme Court] on February 14, 2013.
On February 25, 2013, [Maddrey] filed a timely first pro se PCRA petition, which is the subject of this appeal. Counsel was appointed to assist [Maddrey] with his petition. Determining that there were no meritorious issues to pursue, PCRA counsel filed a no-merit letter and requested permission to withdraw [pursuant to the Turner/Finley framework.] Having reviewed [Maddrey's] pro se PCRA petition and PCRA counsel's no-merit
letter, on April 29, 2013, [the PCRA court] issued a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907. The order notified [Maddrey] of [the PCRA court's] intention to dismiss his PCRA petition without a hearing, informed [Maddrey] of his right to respond and permitted PCRA counsel to withdraw. On May 13, 2013, [Maddrey] filed a response to the pre-dismissal notice. Thereafter, [the PCRA court] issued a Final Order of Dismissal on May 30, 2013, which was erroneously dated May 29, 2013.
18 Pa.C.S. §§ 903(a)(1), 3701(a)(1)(ii), 2701(a)(1), 2706(a)(1), 3921(a), and 901(a)-3921(a), respectively.
See Miranda v. Arizona, 384 U.S. 436 (1966).
Commonwealth v. Maddrey, 53 A.3d 943 (Pa. Super. 2012) (table).
Commonwealth v. Maddrey, 63 A.3d 775 (Pa. 2013) (table).
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
On May 31, 2013, Maddrey filed a notice of appeal to this Court. On June 3, 2013, the PCRA court directed Maddrey to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 12, 2013, Maddrey timely complied. On June 28, 2013, the PCRA court issued a Rule 1925(a) opinion.
Maddrey raises three issues for our consideration:
1. Did [the] PCRA court err when it did not grant [Maddrey] his direct appeal rights following appellate counsel's failure to properly brief and argue the direct appeal issues?Maddrey's Brief at i.
2. Was appellate counsel ineffective when he failed to include pertinent facts from the record / transcript to support [a] claim favorable to [the] defense that the Abington [Police Department] violated the Municipal Police Jurisdiction Act (MPJA 42 Pa.C.S. § 8953(a)(2))?
3. Did [the] trial court err when it sentenced [Maddrey] to an illegal sentence of 20 to 40 years, despite the plain language under the 'Three Strikes Statute' of 42 Pa.C.S. § 9714(a)(1) and 18 Pa.C.S. § 1103(1)?
"[A]n appellate court reviews the PCRA court's findings of fact to determine if they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error." Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citing Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)). "The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level." Id. (citing Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008)).
In its opinion, the PCRA court thoroughly and accurately disposed of Maddrey's first claim. P.C.O. at 4-16. In that issue, Maddrey asserts that direct appellate counsel was ineffective because he failed to advance a claim that the police lacked probable cause or reasonable suspicion initially to detain Maddrey. Maddrey's Brief at 6. In its opinion, the PCRA court completely recites the standards attendant to claims of ineffective assistance of counsel ("IAC"), including the axiomatic principle that "counsel will not be considered ineffective for failing to pursue meritless claims." Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999) (citing Commonwealth v. Parker, 469 A.2d 582, 584 (Pa. 1983)). Reproducing a thorough discussion of probable cause from the Rule 1925(a) opinion issued in Maddrey's direct appeal, the PCRA court concludes that the police's detention of Maddrey was supported by probable cause, and that, consequently, Maddrey's allegation is without merit. P.C.O. at 4-16. Consequently, the PCRA court concluded that Maddrey's first IAC claim fails. We have reviewed the record, Maddrey's brief, applicable law and the PCRA court's opinion. Having done so, we adopt the PCRA court's analysis with respect to Maddrey's first claim. A copy of that opinion is attached hereto for reference.
Maddrey initially was approached by police approximately twenty-four minutes after an armed robbery was reported early in the morning of August 28, 2009 at an apartment complex. That apartment complex had been under police surveillance in connection with the aforementioned "string" of robberies on the previous night. During that prior surveillance, a white van registered to a "Mr. Maddrey" was observed "acting suspiciously" by circling the parking lot, late a night, without its headlights. P.C.O. at 6-8. The victim of the August 28, 2009 robbery also reported that a white van had been in the vicinity immediately before the attack, and was gone afterwards. Id. at 8. The registration information related to the white van observed by the police in the parking lot led the investigating officers to an address on Thouron Avenue in Philadelphia on the night of August 28, 2009. Maddrey was observed walking away from the white van at this location, and he matched a general description of the suspect in the armed robbery. Id. Maddrey was questioned about the van and asked for identification, at which point it was determined that he "was associated with the van and that he also had an extensive criminal history, including robberies." Id. at 9. The victim of that morning's robbery was brought to the scene by police and positively identified Maddrey. Id. at 10. Thereafter, Maddrey was taken to the police department, where he waived his Miranda v. Arizona, 384 U.S. 436 (1966), rights and made voluntary statements. Id. at 10-12.
In Maddrey's second issue, he alleges that direct appellate counsel was ineffective "because he did not direct [the appellate court] to or include in [the] appellate brief sufficient / pertinent facts from the record . . . that was favorable to defense, and also would have negated any [hot/fresh] pursuit claim[s] by the Abington Police." Maddrey's Brief at 12. We disagree.
In our opinion resolving Maddrey's direct appeal, a panel of this Court concluded that the Abington Police Department's entry into Philadelphia's jurisdiction following the August 28 robbery was legitimate under the Municipal Police Jurisdiction Act ("MPJA"), 42 Pa.C.S. § 8951, et seq. Commonwealth v. Maddrey, 1248 EDA 2011, slip op. at 12 (Pa. Super. June 29, 2012). The panel held that the "immediate, continuous, and uninterrupted response to the armed robbery attempt was a hot and fresh pursuit as defined in [subsection] 8953(a)(2) of the MPJA." Id. at 11-12.
The legal standards attendant to IAC claims are well-defined:
[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the "[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). "Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him." Colavita, 993 A.2d at 886 (citing Strickland v. Washington, 466 U.S. 668, 687-91 (1984)). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See Commonwealth v. Pierce, 527 A.2d 973, 975-78 (Pa. 1987). Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). "If a petitioner fails to prove any of these prongs, his claim fails." Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) (citation omitted). Generally, counsel's assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client's interests. See Ali, supra. Where matters of strategy and tactics are concerned, "[a] finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative notSpotz, 84 A.3d at 311-12 (internal citations modified). "[T]he Pierce test requires the PCRA petitioner to set forth the three[-]prong standard of ineffectiveness as it relates to the performance of counsel." Commonwealth v. Jones, 876 A.2d 380, 386 (Pa. 2005) (citing Pierce, 527 A.2d at 975). Furthermore, "a petitioner must . . . individually discuss substantively each prong of the Pierce test." Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008). Moreover, the Pennsylvania Supreme Court has held that a "bald assertion" is inadequate to sustain an appellant's burden of proof pursuant to Pierce. See Steele, 961 A.2d 786, 797 (Pa. 2008) ("[U]ndeveloped claims, based on boilerplate allegations, cannot satisfy [an appellant's] burden of establishing ineffectiveness."); see also Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001) (holding that IAC arguments appended as an "after-thought" to a brief "simply does not satisfy [a]ppellant's burden of establishing that he is entitled to any relief.").
chosen offered a potential for success substantially greater than the course actually pursued." Colavita, 993 A.2d at 887 (quotation and quotation marks omitted).
Instantly, Maddrey has not set forth or substantively addressed the legal requirements pursuant to establishing IAC in the discussion addressing his second claim. Even assuming, arguendo, that we were to construe his arguments as generally addressing the "arguable merit" and "prejudice" prongs discussed above, his only statement regarding the reasonableness of counsel's decisions is as follows: "Counsel[']s failure to direct this [C]ourt to the facts, nor include them in [the] appellate brief cannot be deemed as part of any strategy, . . . ." Maddrey's Brief at 14. This bald allegation, included as the penultimate sentence in Maddrey's substantive discussion of his second issue, is insufficient to sustain his burden of proof. In relevant part, Maddrey has failed to present any cogent argument that directly addresses the reasonableness of counsel's actions. "Failure to address any prong of the [IAC] test will defeat an effectiveness claim." Commonwealth v. Williams, 899 A.2d 1060, 1063 (Pa. 2006). Because Maddrey has failed to demonstrate that there was no reasonable basis for counsel's actions, we conclude that his second claim fails. See Steele, Bracey, supra.
In Maddrey's third issue, he claims that his aggregate sentence is illegal and violates the strictures of 42 Pa.C.S. § 9714(a). The exact nature of the illegality alleged is unclear from Maddrey's argument, but the most complete statement of Maddrey's argument is as follows:
The confusion regarding Maddrey's sentence may stem from the Rule 1925(a) opinion in his direct appeal. "In [the] Rule 1925(a) Opinion dated August 1, 2011, it was mistakenly set forth that [Maddrey] was sentenced to an aggregate term of 10 to 20 years' imprisonment." P.C.O. at 3 n.9. Our independent review of the certified record confirms that Maddrey's aggregate sentence accurately is calculated at twenty to forty years' incarceration. See Corrected Trial/Plea/Sentence Form, 3/31/2011, at 1-7.
[Maddrey] was found guilty on all charges in a single proceeding on the same day, also [Maddrey] was sentenced in a single proceeding on the same day on all counts, thus [Maddrey] believes that the ten (10) to twenty (20) year sentence should be applicable instead of the aggregated 20 to 40 year sentenceMaddrey's Brief at 12. Therefore, Maddrey argues that "the current conviction[s] should be considered one conviction for purposes of Section 9714(a)(1)," as a matter of law. Id. at 13. We disagree.
to allow [Maddrey] an opportunity to reform in between enhancements under the Three Strikes Statute . . . .
The scope and standard of review applied to determine the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court's application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.Commonwealth v. Poland, 26 A.3d 518, 523-24 (Pa. Super. 2011) (quoting Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009)). In relevant part, 42 Pa.C.S. § 9714 provides as follows:
§ 9714. Sentences for second and subsequent offenses42 Pa.C.S. § 9714.
(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. . . .
* * *
(a.1) Mandatory maximum.—An offender sentenced to a mandatory minimum sentence under this section shall be sentenced to a maximum sentence equal to twice the mandatory minimum sentence, notwithstanding 18 Pa.C.S. § 1103 (relating to sentence of imprisonment for felony) or any other provision of this title or other statute.
* * *
(e) Authority of court in sentencing.—There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsections (a) and (a.1) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.
* * *
(g) Definition.—As used in this section, the term "crime of violence" means . . . robbery as defined in 18 Pa.C.S. §[§] 3701(a)(1)(i), (ii) or (iii) . . . ."
The only legal support that Maddrey offers in support of his argument are citations to our Supreme Court's holding in Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005). In Shiffler, the Pennsylvania Supreme Court held that mandatory sentencing provisions pursuant to 42 Pa.C.S. § 9714 "reflects a 'recidivist philosophy' and should be construed to allow for heightened punishment for repeat offenders only where their convictions for crimes of violence, and corresponding terms of incarceration, are sequential and each is separated by an intervening opportunity to reform." 879 A.2d at 186. In Shiffler, the Supreme Court vacated the appellant's sentence, and remanded for resentencing, where the appellant was subjected to a mandatory minimum sentence pursuant to subsection 9714(a)(2), which is applicable only to offenders who have "previously been convicted of two or more . . . crimes of violence arising from the separate criminal transactions." 42 Pa.C.S. § 9714; see Shiffler, 879 A.2d at 194-95. Specifically, the Court in Shiffler concluded that it was improper to sentence the appellant as a "third-strike" offender pursuant to subsection 9714(a)(2) because the appellant's only previous convictions were three burglary charges that arose from the same criminal transaction. In so doing, the Supreme Court rejected the argument that each prior count of the previous conviction counted as a separate "strike" under section 9714:
The anomaly of appellant's situation is thus: while he has not ever been - nor could he have been - sentenced as a second-strike offender, a reflexive application of subsection 9714(a)(2) would subject him to sentencing as a third-strike offender. . . . We do not believe that such a result was intended by the General Assembly in adopting the graduated scheme of recidivist sentencing which is reflected in Section 9714.Id. at 194 (emphasis in original).
Maddrey's reliance upon Shiffler is inapposite. We discern that Maddrey is not citing to Shiffler to support the proposition that he was not eligible for a mandatory minimum sentence pursuant to subsection 9714(a)(1). Rather, Maddrey is arguing that "being as [Maddrey] was found guilty and sentenced all in a single proceeding, the current conviction should be considered one conviction for the purposes of [subsection] 9714(a)(1)." Maddrey essentially is arguing that his multiple mandatory minimums should merge for sentencing purposes. The holding of Shiffler does not address this issue. Additionally, Maddrey's argument that the "recidivist philosophy" undergirding section 9714 precludes the sentencing court from sentencing Maddrey to a harsher sentence is refuted by the text of the statute itself. In relevant part, subsection 9714(e) provides that "[n]othing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section." 42 Pa.C.S. § 9714(e).
Maddrey qualified for mandatory minimum sentences in this case due to a prior, unrelated conviction for robbery. See P.C.O. at 9 (discussing Maddrey's prior criminal record); see aiso Brief for the Commonwealth at 22 (referencing Maddrey's 2004 conviction for robbery).
Furthermore, Maddrey's claim is contrary to well-established law. In relevant part, Pennsylvania's merger statute provides as follows: "No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense." 42 Pa.C.S. § 9765. "Our courts have long held that where a defendant commits multiple distinct acts, concepts of merger do not apply." Commonwealth v. Pettersen, 49 A.3d 903, 911-12 (Pa. Super. 2012) (citing Commonwealth v. Robinson, 931 A.2d 15, 24 (Pa. Super. 2007)).
Instantly, the PCRA court aptly has established in its opinion that Maddrey was convicted for criminal acts arising from multiple incidents:
In this case, [Maddrey] was sentenced to an aggregate term of imprisonment of 20 to 40 years['] imprisonment. More specifically, in connection with two counts of robbery-fear of serious bodily injury, counts 19 and 20 of the Bills ofP.C.O. at 22 (citation modified). Based on the foregoing, we conclude that Maddrey's third claim is without merit. Maddrey has advanced no argument that convinces us that his sentence violates the tenets of 42 Pa.C.S. § 9714, or is otherwise illegal. Consequently, his third claim fails.
Information, [Maddrey] was sentenced on count 19 to a term of 10 to 20 years' imprisonment for the robbery of Ya Ying Xie pursuant to 42 Pa.C.S. § 9714(a)(1). [Maddrey] also was sentenced to a consecutive term of 10 to 20 years' imprisonment for the robbery of Sun Park at count 20 pursuant to 42 Pa.C.S. § 9714(a)(1). See Corrected Trial/Plea/Sentence Form, 3/31/2011, at 2. These were separate offenses for which this Court applied the mandatory minimum to each offense.
"The Commonwealth filed its Notice of Intent to Seek the Mandatory Sentence pursuant to 42 Pa.C.S. § 9714(a)(1) on December 29, 2010." P.C.O. at 22 n.10 (citation modified).
Order affirmed. Judgment Entered. __________________
Joseph D. Seletyn, Esq.
Prothonotary
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
V. DENNIS MADDREY
CP-46-CR-0008761-2009
1548 EDA 2013
OPINION
CARPENTER J.
FACTUAL AND PROCEDURAL HISTORY
Appellant, Dennis Maddrey, appeals from an Order dated May 29, 2013, dismissing, without a hearing, his petition seeking post-conviction relief under the Post-Conviction Relief Act, ("PCRA"), 42 Pa.C.S.A. §§9541-9546. The dismissal was based on counsel's no-merit letter submitted in accordance with Commonwealth v. Turner. 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) and this Court's independent review of the record.
The Final Order of Dismissal was erroneously dated "May 29, 2013". It should read "May 20, 2013" as indicated at the bottom the Order when notice of the Order was mailed out.
Appellant was convicted of six counts of criminal conspiracy, eight counts of robbery, simple assault, eight counts of terroristic threats, seven counts of theft by unlawful taking and attempted theft for his role in a string of armed robberies, which occurred in Cheltenham and Abington Townships, Montgomery County, during August of 2009.
18 Pa.C.S.A. §27019(a)(1).
On August 28, 2009, Appellant was apprehended in Philadelphia County by Abington Township police after an attempted robbery. Appellant did waive his Miranda rights and provided a voluntary statement to police. Police also executed a search warrant on Appellant's white conversion van used during the armed robberies.
On February 18, 2010, Appellant filed a motion to suppress, which went to a hearing on December 12, 2010. After an extensive hearing, argument on the motion to suppress was held on December 13, 2010. At the conclusion of argument, this Court placed its findings of fact and conclusions of law on the record and denied the motion.
The December 12, 2010 Hearing on the Motion to Suppress addressed both the Motion to Suppress filed by Appellant and that of his co-conspirator, Kenneth Williams.
On December 17, 2010, Appellant proceeded to a stipulated bench trial and was found guilty of the aforementioned charges. On March 31, 2011, Appellant was sentenced to an aggregate term of 20 to 40 years' imprisonment. A petition to reconsider sentence was filed April 7, 2011, which was denied on April 18, 2011. A timely direct appeal was filed.
In this Court's 1925(a) Opinion dated August 1, 2011, it was mistakenly set forth that Appellant was sentenced to an aggregate term of 10 to 20 years' imprisonment.
On June 29, 2012, the Pennsylvania Superior Court affirmed Appellant's judgment of sentence. Appellant's Petition for Allowance of Appeal was denied on February 14, 2013.
On February 25, 2013, Appellant filed a timely first pro se PCRA petition, which is the subject of this appeal. Counsel was appointed to assist Appellant with his petition. Determining that there were no meritorious issues to pursue, PCRA counsel filed a no-merit letter and requested permission to withdraw. Having reviewed Appellant's pro se PCRA petition and PCRA counsel's no-merit letter, on April 29, 2013, this Court issued a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907. The order notified Appellant of this Court's intention to dismiss his PCRA petition without a hearing, informed Appellant of his right to respond and permitted PCRA counsel to withdraw. On May 13, 2013, Appellant filed a response to the pre-dismissal notice. Thereafter, this Court issued a Final Order of Dismissal on May 20, 2013, which was erroneously dated May 29, 2013. This timely appeal followed.
ISSUES
I. Whether appellate counsel was effective, despite that he did not raise all issues in his appellate brief that he raised in his concise statement of errors complained of on appeal in regard to Appellant's direct appeal.
II. Whether appellate counsel was effective, despite the fact that he did not include facts that Appellant deems pertinent from the suppression
hearing in support of the appellate argument that the Abington Police violated the Municipal Police Jurisdiction Act.
III. Whether this PCRA Court provided an independent review of the issues Appellant raised in his petition.
IV. Whether Appellant was properly sentenced.
DISCUSSION
Our appellate court, when reviewing the propriety of an order dismissing a PCRA petition on timeliness grounds, determines whether the decision of the trial court is supported by the evidence of record and is free of legal error. Commonwealth v. Williamson. 21 A.3d 236, 240 (Pa.Super. 2011). The trial court's findings with regard to the timeliness of a PCRA petition will not be disturbed unless there is no support for those findings in the certified record. Id.
I. Appellate counsel was effective, despite that he did not raise all issues in his appellate brief that he raised in his concise statement of errors complained of on appeal in regard to Appellant's direct appeal.
First, Appellant asserts that appellate counsel was ineffective because he did not argue in his appellate brief all of the issues raised in his concise statement of errors complained of on appeal ("1925(b) Statement") submitted in regard to Appellant's direct appeal.
On June 13, 2011, appellate counsel submitted a 1925(b) Statement, in accordance with this Court's directive, following the filing of Appellant's notice of appeal from his judgment of sentence. Therein, counsel raised numerous issues, including two which he did not include in his appellate brief, namely whether (1) Abington police lacked reasonable suspicion to believe that Maddrey had been involved in any criminal activity so as to justify stopping and detaining him and (2) the statements made by Maddrey at the Abington Police Department were not knowing, intelligent or voluntary and were coerced in violation of the six hour arraignment rule as well as the totality of the circumstances surrounding Maddrey's provision of such statements. Based on appellate counsel's failure to brief them, the Superior Court found them to be waived. Commonwealth v. Maddrey, 53 A.3d 9 943 at p. 6, n. 7 (Pa.Super. June 29, 2012) (unpublished memorandum). The Superior Court only reviewed two issues on appeal, including, whether the Municipal Police Jurisdictional Act was violated and whether the search of Maddrey's vehicle was unconstitutional.
To prevail on a claim of ineffectiveness of counsel, a petitioner must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstance of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Anderson, 995 A.2d 1184, 1191 (Pa.Super. 2010). The law presumes counsel was effective and thus, the burden of proving otherwise rests with the defendant. Commonwealth v. Zook, 887 A.2d 1218, 1227 (Pa. 2005). To properly plead ineffective assistance of counsel, a petitioner must plead and prove: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act. Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1 (Pa. 2008) (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (Pa. 19987) (adopting the U.S. Supreme Court's holding in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
Here, appellate counsel cannot be deemed ineffective for not pursuing issues which lack merit. As the issues were raised in the direct appeal 1925(b) Statement, this Court addressed them in its September 14, 2011, 1925(a) Opinion, and found them to be without merit. The facts and analysis from the 1925(a) Opinion are reproduced here as follows:
The 1925(a) Opinion included the following relevant facts as established at the Suppression Hearing.
In August of 2009, Sergeant Shawn Williams, a 19 year veteran of the Abington Township Police Department, was investigating a string of armed robberies which were occurring in Cheltenham and Abington Townships as part of the Crime Trends Unit. (Motion to Suppress 12/12/10 p. 7-9). The victims were almost all Asian, and the manner of the armed robberies were the same. Id. at 9. They occurred at night, in the parking lots of large apartment complexes. Id. The victims were often coming to or from the apartment, getting in or out of their car. Id. The suspects were black males, wearing dark clothing. Id. They would approach their victims from behind. Id. at 9, 11.
On August 26, 2009, Sergeant Williams was assigned to robbery detail at a large apartment complex, the Colonade Manor, located in Abington Township, where there had been prior robberies and where there was a large Asian population. Id. at 11-12, 20. At approximately 8:00 p.m., the sergeant, in plain clothes and on a bike, began his stake out in a dark area of the parking lot that wasn't very crowded. Id. at 12, 13.
At about 11:00 p.m., Sergeant Williams observed a suspicious white conversion van. Id. at 14, 15. The van's lights were out, its engine was running and it was backed in to a parking spot. Id. at 14. Sergeant Williams recorded the registration tag and called it into dispatch. Id. at 15. The vehicle came back as a Ford conversion van, out of Philadelphia with a last name of Maddrey. Id. About five minutes after the sergeant first observed the van, it pulled out of the parking space and left, still with its lights out. Id. 15, 16. The sergeant followed it to the adjacent apartment complex. Id. He was able to see that the operator of the van was a black male with glasses. Id. at 16. When the operator exited the vehicle and walked toward the apartment complex, Sergeant Williams was able to observe that he was of medium build. Id. Then the operator disappeared from view, and the sergeant returned to his original stake out location. Id. at 17,
At approximately 11:30 p.m., Sergeant Williams determined that a good observation point would be from the vestibule of a closed sushi restaurant, which was part of the apartment complex. Id. at 17-18. About twenty-five minutes later, at 11:55 p.m., the white conversion van came back in view. Id. at 18. It was creeping through the parking lot of the apartment complex at about five miles per hour. Id. The sergeant lost sight of the van, until it came back in view a third time. Id. at 18-19. This really alarmed the sergeant, and he radioed dispatch and requested that marked vehicles stop the white conversion van. Id. at 19. Sergeant Williams followed the van to the rear of the apartment complex, where the robbery occurred the following evening. Id. at 19. That is where the sergeant lost sight of the van again. Id.
The following day on August 27, 2009, the sergeant worked the 1:00 p.m. to 1:00 a.m. shift. Id. at 20. He conducted the same surveillance as he had on his previous shift. Id. When his shift ended at 1:00 a.m. on August 28, 2009, the sergeant returned to the police department. Id. at 21. At approximately 1:08 a.m., Abington Township police received a report of an armed robbery at the Colonade Manor, involving a
black male, 5'8", black tee shirt and blue jeans. Id at 21. The report indicated that the same modus operandi was used in this armed robbery as had been used the previous robberies, wherein the victim was approached from behind and knocked down. Id.
The victim had been parked near the sushi restaurant and he had noticed a white conversion van before the robbery. Id. at 22. After the victim was robbed, he chased the robber and at that time he noticed that the white conversion van was no longer there. Id. The victim was unable to get a tag number, make, model or year of the van. Id. at 43.
Sergeant Williams believed it was the same white conversion van that he saw during his previous shift, so he asked dispatch to give him the information on the tag which was recorded. Id. at 23. Because the tag came back to Philadelphia, Sergeant Williams told dispatch to advise Philadelphia and Cheltenham to be on the lookout for the white conversion van. Id Because time was of the essence and it was anticipated that Cheltenham's response would be slower than the Abington Township police, Sergeant Williams, Sergeant Patrick Molloy, Officer Dwyer responded to the Philadelphia address of 8648 Thouron Avenue, Philadelphia, an area right outside of the Abington jurisdiction. Id. at 25, 26, 54.They were in separate police vehicles, two marked cars and one unmarked car. Id. at 57.
At 1:32 a.m., about 24 minutes after the robbery was reported, the Abington Township officers arrived at the Thouron Avenue address, id. at 26. Sergeant Molloy was the first to see the white van, and he observed someone walking away from it. Id at 58. Nobody else was about on the street. Id. Sergeant Molloy stopped the person, who turned out to be Appellant. Id. at 58, 59, 61. He believed that when he stopped Appellant, Appellant fit the victim's general description of the perpetrator. Id at 58. He believed this despite the fact that at the time Appellant was stopped he was wearing a white tee shirt, sandals and glasses because he recognized that people can quickly change tee shirts, especially a black one to a white one,
very easily. Id. at 59, 60, 77. Sergeant Molloy also concluded that Appellant was not walking toward his home, but rather, away from it. Id. at 75.
When Sergeant Molloy made contact with Appellant, he asked Appellant whether he knew who owned the white conversion van. Id. at 61. Appellant tried to distance himself from the van by responding that "They live there", pointing across the street. Id. Sergeant Molloy also asked Appellant if the van had been parked there all night or if it was just parked there. Id. at 61-62. Appellant responded that it had been there all night. Id. at 62. Appellant was also asked to produce his identification, which he did. Id. at 62.
While Sergeant Molloy was talking to Appellant, Sergeant Williams checked the white van and determined that the van's engine was hot and that there was a black tee shirt inside. Id. at 28, 29. These facts were made known to Sergeant Molloy. Id. at 65-66.
Now with Appellant's name and date of birth, Sergeant Molloy contacted dispatch. With a secure radio, the Sergeant Molloy was told that Appellant was associated with the van and that he also had an extensive criminal history, including robberies. Id. at 63. Appellant was confronted about the van, and he denied any involvement with it that night. Id. A pat down search was conducted and Appellant was detained pending a show-up identification by the victim of the robbery which just occurred. Id. at 64, 66. Appellant was handcuffed and placed in a police car for safety and to allow the identification procedure to take place. Id. at 66.
About five minutes after the Abington Township officers arrived on the scene, the officers of the Philadelphia Police Department arrived. Id. at 29, 64. The Philadelphia officers were apprised of the unfolding of events. Id. at 29.
The victim of the August 28, 2009 armed robbery, had to be taken to the hospital due to injuries. Id. at 106. He was then brought from the hospital to
the crime scene very promptly. Id. Prior to the victim's identification, Appellant was taken out of the police car and his handcuffs were removed. Id. at 69, 107-108. Appellant was placed in front of the police car, facing the victim, about 10 to 12 feet away. Id. at 69. Two uniformed officers were standing right with Appellant. Id. at 108. The lighting was good. Id. At first the victim did not identify Appellant, but he did identify him after Appellant turned and his glasses were removed. Id. at 108-109.
After the identification, Appellant began yelling that they've got the wrong guy and violently resisting the police, requiring three officers to hold onto him. Id. at 70. Appellant was subdued by a taser. Id. Appellant was then put into the police car and taken to Abington Township Police Department at about 2:00 a.m. Id. at 71-72, 129.
Working the 8 a.m. to 4 p.m. shift at the Abington Township Police Department on August 28, 2009 was Detective Sergeant Anthony DiSandro, a veteran investigator. Id. at 123-125. When he arrived at work that morning, he was briefed regarding Appellant's arrest. Id. at 125. The detective sergeant spoke to the other detectives involved in the investigation, gathering as much information about the robberies that he could because he wanted to intelligently question Appellant, if that opportunity arose. Id. In fact, the detectives discussed how to go about questioning Appellant. Id. While the Detective Sergeant DiSandro was preparing himself, Abington police were readying a search warrant for the white conversion van. The detective sergeant was waiting on the results of that search. Id. at 126-127.
The warrant on the white conversion van was executed at 11:45. Id. at 126. Inside, the police found a BB gun, a black shirt, glasses and paperwork with Appellant's name on it, Id. at 127.
At approximately 12:00 p.m., after Detective Sergeant DiSandro learned of the results of the search, he and Detective Ammaturo went to the cell block where Appellant had been held overnight. Id. at 127. At
the time the detectives went to the holding cell, Appellant had not yet been arraigned, although he had been detained all night. Appellant was not handcuffed, and he had been fed breakfast. Id. at 128. Before these detective came to see Appellant, no one else had questioned him. Id. at 129-130.
The detectives identified themselves, and asked Appellant whether he wanted to talk about the incident from the previous night. Id. at 127-128. They also informed Appellant that the white conversion van had been searched and the results of that search. Id. at 128. Appellant was asked whether he understood English, which he acknowledged he did. Id. Appellant was advised of the right to remain silent, to which Appellant replied, "I know my rights. I will tell you what happened last night. There's no way that guy could identify anyone if he was attacked from behind." Id. This was a statement that Appellant made three or four times. Id. Appellant did eventually agree to go to the interview room for a formal interview. Id. at 128, 130. Detective Sergeant DiSandro testified that Appellant appeared calm, educated and informed. Id. at 129.
Appellant was taken to the interview room in ankle shackles. Id. at 130. Detective Sergeant DiSandro informed Appellant that he would not be handcuffed, and although this was not normal police procedure, it was done to build a rapport. Id. at 130-131. Sergeant Detective DiSandro, Detective Ammaturo and Appellant walked upstairs and went into an interview room, where the door was left open. Id. at 131. Appellant was asked if he wanted anything to eat or drink, and he requested iced tea. Id. at 131. Appellant read his rights form, said that he understood his rights and signed the form. Id at 131-133, 135. Appellant indicated that he wanted to give a voluntary statement. Id. at 131-132. Before the formal statement was taken, Appellant did ask to make a phone call, which he was allowed to do. Id. at 133.
The manner in which the statement was taken was that Detective Sergeant DiSandro asked the questions and the other detective typed the questions and answers. Id. at 134. The first portion of the
statement started at 12:40 p.m. and lasted until 1:45 p.m. Id, at 137, 138. The statement was all about the events from the previous night. Id. at 138, After the statement was taken, Appellant was given the chance to review it and to make any changes. Id Appellant initialed each page of the statement and then signed it. Id. Appellant even commented that Detective Ammaturo did an excellent job typing the statement. Id.
The second part of the statement began five to ten minutes later. Id. at 139. During the interim, Appellant had the opportunity to go to the bathroom and was offered something to eat and drink. Id The detectives spoke to Appellant about the other robberies. Id. Initially, Appellant denied involvement, but eventually he did admit to them. Id. The formal statement began at 2:35 p.m. and lasted until 3:25 p.m.. Id at 139, 140. At no time did Appellant ask for an attorney, Id at 140. Appellant's demeanor during this second portion of his statement was as it was before, calm and confident. Id. Appellant was then fingerprinted and photographed on the first robbery, while other detectives were preparing a criminal complaint. Id.
After Appellant was processed, the statement was reopened at 3:45 p.m. Id. at 141. Appellant had been reminded that he had the right to remain silent and that his statement had to be voluntary. Id. at 142. Appellant reiterated that he understood that and that he wanted to continue with his statement. Id. at 142. The statement lasted until 4:45 p.m. Id. at 141.
The detectives contacted the district justice for the arraignment. Id. at 142. The district justice did not get around to arraigning Appellant until approximately 7:00 p.m., and it was done by video. Id.
Based upon the above factual history of the case, this Court provided the following analysis of the issues, the issues that appellate counsel did not include in his appellate brief, namely, (1) whether the Abington police lacked reasonable suspicion to believe that Maddrey had been involved in any criminal activity so as to justify stopping and detaining him and (2) the statements made by Maddrey at the Abington Police Station were not knowing, intelligent or voluntary and were coerced in violation of the 6-hour arraignment rule as well as the totality of the circumstances surrounding Appellant's provision of such statements, including being tasered by police. Concise Statement of Errors Complained of on Appeal 6/13/11, Issues 1(b) & (c).
(1) Probable Cause\Reasonable Suspicion
First, Appellant contends that Abington Township police lacked reasonable suspicion to believe that he had been involved in any criminal activity so as to justify stopping and detaining him. This Court disagrees, and in fact has determined that the police had probable cause to arrest Appellant.
"Probable cause to arrest exists when the facts and circumstances within the police officer's knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Commonwealth v. Holton, 906 A.2d 1246, 1249 (Pa.Super. 2006). Whether probable cause exists is a highly fact-sensitive inquiry that must be based on the totality of the circumstances as viewed through the eyes of a prudent, reasonable, cautious police officer guided by experience and training. Commonwealth v. Clark, 735 A.2d 1248, 1252 (Pa. 1999). Probable cause does not involve certainties, but rather the factual and practical considerations of everyday life on which reasonable and prudent men act. Commonwealth v. Wright, 867 A.2d 1265, 1268 (Pa.Super. 2005). It is only the probability and not a prima facie showing of criminal activity that is a standard of probable cause. Holton, supra.
In this case, there were many facts known to police which gave rise to probable cause. There were a string of seven robberies in Cheltenham Township and Abington Township with the same modus operandi. The robberies occurred in the parking lots of large apartment complexes with substantial Asian populations, which is significant because almost all of the victims were Asian. The robberies occurred after dark. The suspect descriptions included black males of varying heights, 20 to 30 years old.
Additionally, the police were aware of the information that Sergeant Williams had achieved due to excellent police surveillance. The sergeant observed a white conversion van that was acting suspiciously in the parking lot of a large apartment complex, with a large Asian population, after dark. The van was backed into a parking spot, running and with its lights off. He also saw the van drive through the parking lot with its lights off into the adjoining apartment complex and sit there for a few minutes. Sergeant Williams saw the white conversion van creeping thought the lot a third time very slowly, as if trolling for victims. These factors would lead any police officer to be suspicious. It is not conduct that is consistent with innocent behavior. In fact, this conduct is all very consistent with the type of criminal activity that Sergeant Williams was investigating, which did involve looking for victims and robbing victims in the parking lot.
These facts are coupled with the events of August 28, 2009, when there was a police report of an armed robbery at the same apartment complex where Sergeant Williams had observed the white conversion van the previous night. The victim also reported seeing the van at the scene of the robbery. The Abington Township police legally concluded that the white conversion van was involved in the robbery. At time of the August 28, 2009 robbery, the police knew that the white conversion van was registered to a Mr, Maddrey at 8648 Thouron Avenue. The police located the van not very long after the report of the robbery.
Sergeant Williams also observed the driver of the white conversion van the night prior to the August 28,
2009 robbery, when he observed him exit the van. The police spotted Appellant fitting a proper physical description near the van. Appellant was the only person on the street. Accordingly, these facts gave rise to probable cause.
(2) Six-Hour Rule
...Appellant contends that the statements made by him at the Abington Police station were not knowing, intelligent or voluntary and were coerced in violation of the six hour arraignment rule as well as the totality of the circumstances surrounding his provision of such statements, including being tasered by police.
In Commonwealth v. Perez, 845 A.2d 779 (Pa. 2004), the Pennsylvania Supreme Court abrogated the Duncan-Davenport six-hour rule and held that "voluntary statements by an accused, given more than six hours after arrest when the accused has not been arraigned, are no longer inadmissible per se." Id. at 845 A.2d at 787. Instead the totality of the circumstances was adopted to determine whether a pre-arraignment statement was freely and voluntarily made by the accused. Id. Various other factors to consider include the interrogation's duration and means, the defendant's physical and mental state, the detention conditions, police attitude during the interrogation, and any other factors indicating whether coercion was used. Id at 785.
In this case, this Court found that the totality of the circumstances demonstrated that Appellant's statements to Detective Sergeant DiSandro and Detective Ammaturo were knowingly, intelligently and voluntarily given. Appellant was brought to the Abington Township Police Department at approximately 2;00 a.m. on March 28, 2009, and that he was not arraigned until 7:00 p.m. (Motion to Suppress 12/12/10 p. 129, 169). Detective Sergeant DiSandro testified that overnight the police were finishing up the investigation, doing the canine search
and getting the search warrant for the white conversion van. Appellant had not been questioned before the detectives went down to see Appellant at 12:00 p.m.
Detective Sergeant DiSandro's credibly testified to the circumstances surrounding Appellant's confession. Once at the holding cell, Appellant was advised of his right to remain silent, however, Appellant did agree to give a formal statement. He also testified that Appellant appeared calm, articulate, educated and smart throughout the entire process. Prior to giving the statement, Appellant was provided with a Miranda Rights form, which he read, understood and signed. During the process, Appellant was offered food and drink, and he did request iced tea. Appellant was also allowed to make an unsupervised phone call. He was not handcuffed throughout the interview and the door to the interview room was left open. It was a non-threatening atmosphere. The detectives treated Appellant with the dignity and respect to which he was entitled and they treated him fairly. Under these circumstances, Appellant's statement was voluntarily given,
The failure to promptly arraign Appellant was due in part to a district justice delay, but it certainly was not something exploited by the police to get a coercive statement. Appellant was simply housed overnight during a continuing investigation. Appellant was not subject to a prolonged police interrogation all night or to multiple interrogations. There is nothing in the record that would indicate that the delay in Appellant's arraignment was aimed at overcoming his will, or that the police used any coercive tactics to persuade Appellant to give a statement.
Therefore, as these issues lack merit, appellate counsel cannot be deemed ineffective in failing to pursue meritless claims. II, Appellate counsel was effective, despite the fact that he did not include facts that Appellant deems pertinent from the Suppression Hearing in support of the appellate argument that the Abington Police violated the Municipal Police Jurisdiction Act.
Second, Appellant contends that appellate counsel was ineffective in arguing a violation of the Municipal Police Jurisdiction Act ("MPJA") in his direct appeal because appellate counsel failed to include pertinent facts from the record that were favorable to him, Appellant specifically cites to the notes of testimony from the December 12, 2010 Suppression Hearing at pages 43 through 44. Appellant argues that this testimony reveals that the victim did not give any description of the alleged vehicle and did not provide any information that would have justified police to travel into another jurisdiction. This claim amounts to an attempt to re-litigate a claim, albeit under a different theory, already reviewed and rejected by the Superior Court on direct appeal. A claim is previously litigated under the PCRA if the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue. 42 Pa.C.S. § 9544(a)(2). It is well-settled that a PCRA petitioner cannot obtain review of claims that were previously litigated by presenting new theories of relief. Commonwealth v. Bond, 598, 819 A.2d 33, 38 (Pa, 2002). In addition to the bar of previously litigated claims, the substance of this claim lacks merit and should be rejected.
The pages of testimony identified by Appellant comprise a portion of the cross-examination of Sergeant Williams. During that cross-examination, defense counsel questioned the sergeant, trying to undercut his direct examination testimony, in which he stated that the victim from the attempted armed robbery was able to identify a white conversion van. Specifically, Appellant cites to the following cross-examination testimony.
Q. The victim could not describe the year of the van?(Suppression Hearing 12/12/10 pp. 43-44). This testimony would not have been helpful on direct appeal.
A. No.
Q. The victim could not describe the model of the van? The victim couldn't give you a plate number?
A. No.
Q. The victim couldn't even give you whether or not it was a Pennsylvania tag, right?
A. No.
Q. So the only description of the vehicle was that it was a white van, correct?
A. Yes, and the location of it, that's it.
Q. The victim did not see an assailant come from the van?
A, Not that I recall.
Q. And the victim did not see the assailant get in the van and drive away, correct?
A. No.
Q. So other than being a white van, there were no objective facts that night to lead you to believe that it was the same vehicle, correct?
A. Based on my observations, based on what the victim said as being there before and after, the location at the sushi restaurant, I was very confident there was a good chance it was the van.
Q. But there were no objective facts supporting that?
A. No.
On direct appeal, the Superior Court reviewed the issue of whether the "Abington police arrest and subsequent search of Appellant and his vehicle in Philadelphia violate[d] the provision of the statewide Municipal Police Jurisdiction Act, requiring the suppression of the fruits of such search." Commonwealth v. Maddrey, 53 A.3d 943 at p. 6 (Pa.Super. June 29, 2012) (unpublished memorandum). The Superior Court reviewed the issue under the "hot pursuit" exception under 42 Pa.C.S.A. §8953(a)(2), which the suppression court found to be applicable. Id. at 8. After the Superior Court set out that the "hot pursuit" exception requires a police officer (1) to possess probable cause that an offense has been committed in his or her primary jurisdiction, and (2) is in hot and fresh pursuit of the perpetrator of the offense, it observed that Appellant was only challenging the first requirement of the hot pursuit exception by claiming the Abington Township police did not have probable cause to believe the driver or owner of the van was perpetrator of the robbery in Abington before they followed the van out of their primary jurisdiction. Maddrey, 53 A.3d at 8.
In analyzing whether the Abington police had probable cause, the Court noted that "[t]he officers received a report of an attempted armed robbery at 1:08 a.m. which occurred in the parking lot of the Colonade apartment complex. The victim, an Asian male, told police he was attacked from behind by a black male, 5'8" in height, wearing a black tee shirt. The robber pointed a gun in the victim's face and demanded the victim give him his wallet. When the victim resisted, the robber hit him in the head with his gun and fled. From this report, Abington officers had probable cause to believe an attempted armed robbery occurred in heir jurisdiction and met the first requirement of the hot pursuit exception of the MPJA." Id. at 10 - 11.
A reading of this analysis demonstrates that the Superior Court did not rely on the victim's description of the white conversion van in order to make a determination as to probable cause; therefore any deficiencies in the victim's identification of the white conversion van that was brought out on cross-examination were irrelevant.
The Superior Court in its opinion, did sua sponte discuss the white conversion van in regard to the second requirement of the "hot pursuit" exception, namely, whether the Abington police were in hot and fresh pursuit of Appellant when they arrived in Philadelphia. Id. at 11 - 12. However, this is irrelevant since the Superior Court also held that even if the Abington police violated the MPJA, the suppression of the evidence obtained from the stop would not be an appropriate remedy for this violation viewing the totality of the circumstances, stating that "Sergeant William had probable cause that an attempted armed robbery had just occurred in his jurisdiction and set out to apprehend the suspect who could be linked to multiple robberies where victims had been threatened at gunpoint. Sergeant Williams's conduct was reasonable in pursuing the perpetrator of this robbery attempt to promote public safety, one of the Legislature's primary purposed in enacting the MPJA." Id. at 13 - 14.
Accordingly, the cross-examination testimony that Appellant wished appellate counsel would have highlighted would have either been irrelevant or inconsequential.
III. This PCRA Court provided an independent review of the issues Appellant raised in his petition.
Next, Appellant contends that this PCRA Court committed error when it abrogated its responsibility under Turner and Finley to independently review the issues and give an "autonomous judicial expression" of its own reasons for denying relief before allowing PCRA counsel to withdraw.
Presumably, Appellant is referring to this Court's April 29, 2013, pre-dismissal notice in which this Court noted that "[a]nd for all the reasons set forth in court-appointed counsel's 'no merit' letter, hereby gives notice of the Court's intention to dismiss the PCRA Petition without a hearing." This Court believes that this claim is waived. Appellant should have preserved this claim of alleged PCRA Court error in his response to the pre-dismissal notice, but he did not; therefore this claim should be considered waived.
Assuming arguendo, that this claim has been properly preserved, it is also without merit. Within the April 29, 2013, pre-dismissal notice, this Court also states that, "[a]nd after this Court's independent review of the record." In regard to this Court's "autonomous judicial expression" of its reasons for dismissing Appellant's PCRA petition, this Court notes that that this 1925(a) Opinion is exactly that.
IV. Appellant was properly sentenced.
Lastly, Appellant contends that the trial court erred when it sentenced him to an illegal sentence of 20 to 40 years under the " 'Three Strikes Statute', despite the plain language in 42 Pa.C.S.A. §9714(a)(1) and 18 Pa.C.S.A. §1103(1) that mandates a second time offender receives a fixed sentence of 10 to 20 years." Concise Statement of Errors Complained of on Appeal 6/2/13, Issue 4,
In this case, Appellant was sentenced to an aggregate term of imprisonment of 20 to 40 years. More specifically, in connection with two counts of robbery-fear of serious bodily injury, counts 19 and 20 of the Bills of Information, Appellant was sentenced on count 19 to a term of 10 to 20 years' imprisonment for the robbery of Ya Ying Xie pursuant to 42 Pa.C.S.A. §9714(a)(1). Appellant was also sentenced to a consecutive term of 10 to 20 years' imprisonment for the robbery of Sun Park at count 20 pursuant to 42 Pa.C.S.A. §9714(a)(1). See Disposition Sheet, 3/31/2011. These were separate offenses for which this Court applied the mandatory minimum to each offense. Accordingly, Appellant was properly sentenced.
The Commonwealth filed its Notice of Intent to Seek the Mandatory Sentence pursuant to 42 Pa.C.S.A. §9714(a)(1) on December 29, 2010.
CONCLUSION
Based on the foregoing analysis, the Final Order of Dismissal dated May 29, 2013, dismissing Appellant's PCRA petition should be affirmed.
BY THE COURT:
________________________
WILLIAM R. CARPENTER J.
COURT OF COMMON PLEAS
MONTGOMERY COUNTY
PENNSYLVANIA
38th JUDICIAL DISTRICT
Copies sent on June 27, 2013
By Interoffice Mail to:
Anne Schools, Court Administration
By First Class Mail to:
Dennis Maddrey #JZ1098
SCI Albion
10745 Route B
Albion, PA 16475-0001