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HomeMy WebLinkAbout98-1039 criminalCOMMONWEALTH Vo CHRISTINA NICULAE · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·NO. 98-1039 CRIMINAL TERM IN RE' DEFENDANT'S REQUEST FOR NEW TRIAL BASED UPON CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL BEFORE GUIDO, J. ORDER OF COURT AND NOW, this day of JANUARY, 2000, for the reasons set forth in the attached opinion we find that Defendant has failed to sustain her burden of proving that her trial counsel was ineffective. Therefore, her request for a new trial is DENIED. She is directed to appear for commitment of sentence on Tuesday, February 29, 2000. If she has perfected an appeal prior to that date, we will address the issue of bail at that time. By the Court, Edward E. Guido, J. Jaime M. Keating, Esquire For the Commonwealth David M. McGlaughlin, Esquire For the Defendant :sld COMMONWEALTH ge CHRISTINA NICULAE · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 98-1039 CRIMINAL TERM IN RE' DEFENDANT'S REQUEST FOR NEW TRIAL BASED UPON CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL BEFORE GUIDO, J. OPINION AND ORDER OF COURT Following a jury trial defendant was found guilty of driving under the influence of alcohol.~ On December 1, 1998, she was sentenced to pay a fine and to undergo a period of incarceration of not less than forty-eight hours nor more than twenty-three months. After sentence the defendant obtained private counsel and filed a timely appeal. The appeal was based upon the alleged ineffectiveness of her trial counsel. The Superior court rejected all of defendant's claims of ineffectiveness, save one. It remanded the case to us for the purpose of conducting an evidentiary hearing on the issue of thai counsel's alleged ineffectiveness in failing to move to suppress certain statements made by the defendant.2 An evidentiary hearing was held on December 10, 1999. Counsel have filed briefs in support of their respective positions. This matter is now ready for disposition. ~ She was charged under 75 Pa.C.S.A. § 3731(a)(1) and (a)(4)(ii). The jury found her not guilty of violating Section 373 l(a)(1) and guilty of violating Section 373 l(a)(4)(ii). We found her guilty of the summary offenses of One-Way Roadways, 75 Pa.C.S.A. {} 3308(b), and Purchase, Consumption, Possession or Transportation of Intoxicating Beverages, 18 Pa.C.S.A. {} 6308. 2 See memorandum opinion of Hudock, Ford Elliott, JJ. and Cercone P.J.E. filed on September 23, 1999 in the Superior Court of Pennsylvania at No. 77 Middle District 1999. NO. 98-1039 CRIMINAL FINDINGS OF FACT At approximately 3'50 a.m. on April 5, 1998, officer Nicole Herb and officer David Herb were on routine patrol in the Borough of Shippensburg Cumberland County, Pennsylvania.3 They were walking along East Fort Street when they observed a gray Volkswagen Jetta with a missing headlight coming toward them.4 East Fort Street is a one-way street and the Jetta was travelling the wrong way. It was being driven by a white female with dark brown hair pulled up into a bun or ponytail.5 As she mined from East Fort Street onto High Street, she did not use her mm signal.6 Officer Nicole Herb pursued the vehicle on foot while Officer David Herb went to the patrol car.7 She lost sight of the vehicle briefly as she ran through yards to cut it off.8 However, she could hear it the entire time.9 The vehicle stopped very close to where she was.l° She found it parked in front of an apartment house on Rotz Avenue.l~ It was only one minute from the time she had initially seen the vehicle until she found it parked on Rotz Avenue.12 She felt the hood and confirmed that it was warm.~3 Officer David Herb arrived at her location and they ran a registration check on the Jetta.TM While waiting for the registration information to be provided, they entered the apartment building to see if they could locate the driver.~5 They noticed a light on in Trial transcript, p. 12. Trial transcript, p. 13. Trial transcript, p. 14. Trial transcript, p. 37. Trial transcript, p. 15. Trial transcript, p. 15. Trial transcript, p. 15. ~o Trial transcript, p. 15. ~ Trial transcript, p. 15. ~2 Trial transcript, p. 15. ~3 Trial transcript, p. 16. ~4 Trial transcript, p. 16. ~s Trial transcript, p. 17. NO. 98-1039 CRIMINAL front of only one apartment, so they knocked on the door.~6 The defendant answered the door with her hair in a ponytail type bun.17 This was only three or four minutes after the Jetta had passed the officers on East Fort Street.~8 Defendant's eyes were glassy and bloodshot and her breath smelled strongly of alcohol.~9 She denied any knowledge of the Volkswagen Jetta.2° The officers went back to their patrol vehicle to see if the registration information on the Jetta was available.2~ However, Officer Nicole Herb was certain that she recognized the defendant as the driver.22 The vehicle was registered to Christina Niculae at another address in the Borough.23 The officers also noticed a Shippensburg University identification card on the dash with the name of Christina Niculae on it.24 The officers returned to the apartment to get some identification from the defendant.2s They knocked on the door and a male answered. He identified himself as a "Mr. Niculae," the brother of the defendant.26 The officers asked to speak with his sister and he said she was asleep.27 Officer David Herb told Mr. Niculae that she could not be sleeping since they had just talked to her.28 He asked him again to have his sister come to the door, which she did.29 16 Trial transcript, p. 17. 17 Trial transcript, p. 19. la Trial transcript, p. 19. ~9 Trial transcript, p. 19. 20 Trial transcript, pp. 19-20. 2~ Trial transcript, p. 20. 22 Trial transcript, p. 20. 23 Trial transcript, p. 20. 24 Trial transcript, p. 21. 25 Trial transcript, pp. 21, 43.' 26 Trial transcript, p. 21. 27 Trial transcript, pp. 21-22. 28 Trial transcript, pp. 22, 44. 29 Trial transcript, pp. 44-45. NO. 98-1039 CRIMINAL When the defendant came back to the door, Officer David Herb asked her for identification.3° She produced her driver's license.31 When he asked her again if she was the driver of the Jetta she began to cry and apologized for lying to them earlier.32 It was obvious to both officers that she was intoxicated.33 They placed her under arrest for driving under the influence and transported her to the police station.34 DISCUSSION Defendant's only argument is that her counsel was ineffective for failing to move to suppress the statements she made to the police at the doorway of the apartment.35 For the reasons hereinafter set forth, we disagree. The standard for determining whether relief should be granted on a claim of ineffective assistance of counsel is well settled. The defendant must: demonstrate that the underlying claim is of arguable merit; then, that counsel's action or inaction was not grounded on any reasonable basis designed to effectuate [her] interest; and, finally, that but for the act or omission in question, the outcome of the proceedings would have been different. Commonwealth v. Arroyo, 555 Pa. 125, 143,723 A.2d 162, 171 (1999)36 quoting from Commonwealth v. Travaglia, 541 Pa. 108, 118, 661 A.2d 352, 356-357 (1995). Counsel is presumed to be effective until defendant proves otherwise. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). The defendant has the burden of proving all three prongs of the ineffectiveness standard. Commonwealth v. Travaglia, supra. 3o Trial transcript, p. 45. 3~ Trial transcript, p. 45. 32 Trial transcript, pp. 45-46. 33 Trial transcript, pp. 23, 47-48. 34 Trial transcript, pp. 24, 48. 35 See transcript of December 10, 1999 Evidentiary Hearing, pp. 10-11. 36 Commonwealth v. Arrgy.o., like the instant case, dealt with a claim of ineffective assistance of counsel being raised on direct appeal. NO. 98-1039 CRIMINAL The threshold question we must address is whether the motion to suppress was of arguable merit. Counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Lebo, 713 A.2d 1158 (Pa. Super. 1998). In the instant case, we are satisfied that any motion to suppress the statements made at the doorxvay would have been without merit. Defendant contends that the statements in question were the product of a custodial interrogation and were obtained without a valid waiver of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). However, based upon the officers' trial testimony, 37 we are satisfied that the events at the doorway amounted to no more than an investigative detention. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968); Commonwealth v. Ellis, 541 Pa. 285,662 A.2d 1043 (1995). The defendant was not taken into custody for purposes of invoking Miranda until the officers placed her under arrest to be transported to the police station. See Commonwealth v. Proctor, 441 Pa. Super. 176, 657 A.2d 8 (1995). Any motion to suppress her statements during the investigative detention would have been fruitless. Commonwealth v. Haupt, 389 Pa. Super. 614, 567 A.2d 1074 37 Since the Defendant elected not to call the officers to testify at the evidentiary hearing, we were forced to view the trial transcript to get their version of what occurred at the doorway. Defendant gave a radically different version. If we were to believe her, there is an argument to be made that the confrontation had escalated from an investigative detention to a custodial situation. See Commonwealth v, Check.o, 500 Pa. 571,459 A.2d 311 (1983), wherein the Supreme Court set forth what constituted custodial interrogation: The test for determining whether a suspect is being subjected to custodial interrogation so as to necessitate Miranda warnings is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation. Id. at 577,459 A.2d at 314 (citations omitted). However, we did not find the Defendant's version of events to be credible. NO. 98-1039 CRIMINAL (1989). Therefore, her trial counsel cannot be deemed to have been ineffective for not having filed one.38 ORDER AND NOW, this 27TM day of JANUARY, 2000, for the reasons set forth in the attached opinion we find that Defendant has failed to sustain her burden of proving that her trial counsel was ineffective. Her request for a new thai is DENIED. She is directed to appear for commitment of sentence on Tuesday, February 29, 2000. If she has perfected an appeal to that date, we will address the issue of bail at that time. By the Court, /s/Edward E. Guido Edward E. Guido, J. Jaime M. Keating, Esquire For the Commonwealth David M. McGlaughlin, Esquire For the Defendant :sld 38 Even if the suppression issue was of arguable merit, defendant's claim for relief based upon ineffectiveness of trial counsel would still fail. She has failed to satisfy the third prong of the test, i.e. that there is a reasonable probability that the outcome of the proceedings would have been different. Even if the statement at the door had been suppressed, the Commonwealth would still have been able to use the post Miranda statements given at the police station.