HomeMy WebLinkAbout99-216; 99-225 CriminalCOMMONWEALTH
WILLIAM JOHN HOOTEN
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-0225 CRIMINAL TERM
NO. 99-0216 CRIMINAL TERM
IN RE: OPINION PURSUANT TO APPELLATE RULE 1925
Guido, J., December ,2002
The petitioner, William Hooten, was charged along with co-defendants James
Moss and Levar Smith, with various drug related offenses. All of the cases were
consolidated for trial. After a two day trial before a jury, petitioner was convicted at 99-
0216 of conspiracy to unlawfully possess cocaine with intent to deliver. ~ He was also
found guilty at 99-0225 of possessing a small amount of marijuana.2 On August 31,
1999, we sentenced the petitioner to 5-10 years in a state correctional institution on the
conspiracy charge.3 He filed a timely appeal which was denied by the Pennsylvania
Superior Court by memorandum opinion dated July 24, 2000. On January 8, 2001, the
Pennsylvania Supreme Court denied his request for allowance of appeal.
Petitioner then filed a petition for relief under the Post Conviction Relief Act.4
He raised several issues, all of which related to the alleged ineffectiveness of his trial
~ 18 Pa. C.S.A. § 903 to 35 P.S. § 780-113(a)(30). The jury found him not guilty of possession with intent
to deliver. The jury returned with the same verdicts as to Defendant Smith. Defendant Moss was
convicted of both charges.
: 35 P.S. § 780-113(a)(31).
~ We imposed a sentence of costs and fines on the other charge.
4
42 Pa. C.S.A. § 9541 et seq.
counsel. After an evidentiary hearing held before us on July 19, 2002, we denied his
petition. This timely appeal followed.
On appeal petitioner challenges our decision to deny his request for relief based
upon the ineffectiveness of his trial counsel. Specifically, he seeks review of our refusal
to grant his ineffectiveness claim on any of the following grounds:
1 .) Counsel's failure to move to suppress the small amount of marijuana found in
the Camaro on the basis that petitioner had a valid expectation of privacy
therein.
2.) Counsel's failure to move to suppress the small amount of marijuana found in
the Camaro occupied by petitioner on the basis that the owner did not consent
to the search.
3.) Counsel's failure to effectively cross-examine Trooper Leydig.
We will discuss each claim in the opinion that follows.
FACTUAL BACKGROUND
On the early morning hours of January 14, 1999, Troopers Chad Sydnor and
Jeffrey Braid of the Pennsylvania State Police were patrolling Interstate 81 in
Cumberland County.5 They were in a four wheel drive marked patrol unit.6 The weather
was dreadful. It was snowing, the roads were icy, and it was cold.?
At approximately 1:00 a.m., as the troopers were traveling southbound on
Interstate 81, they came upon a Camaro with Maryland tags stuck in the median.8 They
Trial Transcript, p. 11.
Trial Transcript, p. 11.
Trial Transcript, p. 11.
Trial Transcript, pp. 12, 14.
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stopped to help, as they had done for several other vehicles during the night.9 As they
approached the vehicle, petitioner was behind the wheel and the two co-defendants were
standing outside, l0 Trooper Sydnor began to question the parties. Co-defendant Moss
made a point to tell him that he did not know the others, and that he had just stopped to
help. ~ When the trooper asked co-defendant Smith what had happened, Smith responded
with silence. He just looked at the trooper.~2 The trooper then questioned petitioner.
Petitioner stated that he had been driving the Camaro when it slid into the median and got
stuck.~3
Petitioner refused the troopers' initial offer to summon a tow truck. However,
when it became clear that he and his cohorts could not extricate the Camaro, petitioner
asked the trooper to call for a tow truck. 14 Both troopers returned to their patrol vehicle
to place the call. ~5 As they were waiting for the tow truck, the troopers saw all three
defendants walk across the highway and get into a Nissan that was parked along the
southbound berm ofI-81 .~6 Without saying a word and without signaling in any way, all
three left in the Nissan. ~7 This struck the troopers as very strange, so they pursued the
vehicle. ~8
9 Trial Transcript, p. 35.
l0 Trial Transcript, p. 14.
~ Trial Transcript, pp. 15, 43.
~: Trial Transcript, p. 15.
~3 Trial Transcript, p. 16.
~4 Trial Transcript, p. 16.
~s Trial Transcript, p. 16.
16 Trial Transcript, p. 16.
~7 Trial Transcript, p. 17.
~8 The troopers went on to state that they had never before seen anyone abandon their vehicle while waiting
for a tow truck. (p. 17, 40.)
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As soon as the troopers stopped the Nissan, the driver, Moss, jumped out.
Trooper Sydnor obtained information from Moss, while Trooper Braid talked to the
occupants.2° Petitioner told Trooper Braid a version of events that was at odds with what
he had told Trooper Sydnor earlier.2~ Specifically, he indicated that the Camaro was not
his, but belonged to another man named "Sincere". The other man had been driving it
when it went off the road. According to petitioner, the other man had gone to a nearby
gas station to call for help, but he never returned.22
The troopers obtained permission from Moss to search the Nissan, which was
properly registered to him in North Carolina.23 They discovered a small baggie of
marijuana between the driver's side seat and the door.24 Moss denied any knowledge of
the marijuana.25
After running the registration on the Camaro, the troopers determined that it did
not belong to petitioner.26 They contacted the owner and obtained permission to search
it. As a result of that search, they found a small baggie of marijuana under the front
passenger seat.27 It was identical to the marijuana found in the Nissan, i.e. same size
baggie, same approximate amount.28
The police eventually obtained search warrants for both the Camaro and Nissan.
No additional drugs were found in the Camaro. However, 927 grams of crack cocaine
19 Trial Transcript, p. 17.
20 Trial Transcript, p. 18.
21 Trial Transcript, p. 50.
22 See Commonwealth PCRA Hearing Exhibit 1, p. 3.
23 Trial Transcript, p. 20.
24 Trial Transcript, p. 20.
:s Trial Transcript, p. 20.
26 Trial Transcript, p. 54.
27 Trial Transcript, p. 54.
28 Trial Transcript, pp. 58-59.
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having a street value of at least $200,000, were found in the Nissan.
DISCUSSION
Petitioner is entitled to relief under the Post Conviction Relief Act if he can prove
that ineffective assistance of counsel "so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken place." 42 Pa. C.S.A. §
9542(a)(2)(ii). The standard for proving an ineffectiveness claim is well settled. The
petitioner must prove the following by a preponderance of the evidence: "(1) that the
underlying claim is of arguable merit; (2) that counsel's performance lacked a reasonable
basis; and (3) that the ineffectiveness of counsel caused him prejudice." Commonwealth
v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001.) The petitioner bears the burden of
proving all three of the above. Failure to prove any prong will result in a failure of the
claim. Com. v. Meadows, 567 Pa. 344, 787 A.2d 312 (2001). Applying the above
standard to the case at bar, we were not persuaded that petitioner had sustained his burden
of proof in connection with any of his claims of ineffective assistance of counsel.
Petitioner's Expectation of Privacy in the Camaro.
Petitioner's first claim centered around his trial counsel's failure to attack the
search of the Camaro on the grounds that his consent was neither sought nor given. He
argued that, as the driver, he had an expectation of privacy in the contents of the vehicle.
Therefore, the consent of the owner alone was not sufficient to make the search valid.
Counsel cannot be deemed to have been ineffective for failing to raise a meritless
issue. Com. v. Meadows, supra. Petitioners "expectation of privacy" argument is such
an issue. Petitioner gave conflicting statements regarding his connection to the Camaro.
While he initially claimed to be the driver, he later denied it. In fact, in the last statement
he gave to the police, petitioner told them that the driver had abandoned the Camaro.
Under those circumstances, it was entirely reasonable for the police to seek permission
from the owner to search the vehicle. Under the same circumstances, it would have been
unreasonable for petitioner' s counsel to argue that he had an expectation of privacy in the
contents thereof.
Owner's Consent to Search Vehicle.
Petitioner next faulted his trial counsel for failing to check with the owner in order
to verify that he had actually given permission to search the Camaro. Petitioner testified
that according to his conversations with the owner, no such permission was ever given.
We found this issue to have been without merit for two reasons. In the first
instance, we did not believe petitioner' s testimony with regard to what the owner told
him. Furthermore, we did believe trial counsel's testimony that petitioner neither
requested that he contact the owner nor suggested that the owner might not have given
permission to search the vehicle. Therefore, counsel could not have been deemed to have
been ineffective on this ground.
Cross Examination of Trooper Leydig.
Petitioner's final argument centered on his counsel's alleged ineffective cross
examination of Trooper Leydig. Particularly, petitioner felt that the following portion of
the trooper's report should have been brought to the jury's attention:
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I spoke with Lt. SEVERIN, 212-426-2752, New York City Police Dept.,
Narcotics Division, on 01/20/99 in reference to three accuseds. He had a record
of MOSS being arrested with a James JACKSON in November, 1997. He faxed
me a photo of JACKSON. It did not match SMITH or HOOTEN.
I spoke with Det. CULLAFORD, 919-856-6967, Raleigh, N.C. Drug Task Force
in reference to MOSS. He checked his records and could not provide any helpful
information.
On 01/21/99 1 met with members of the Washington Co. Drug Task Force and the
Hagerstown Police Dept. I showed them pictures of the three accused. Ofc. Curtis
WOOD Hagerstown PD bike detail stated that he has seen all three in Hagerstown
but has not seen them together.29
He argued that the above information would highlight the fact that the police could not
establish a prior connection between him and his codefendants. We were satisfied that
this third claim failed both the "reasonable basis" and "prejudice" prongs of the
ineffectiveness test.
Counsel had a reasonable basis for not eliciting the above information on cross
examination. The next sentence of the police report states:
HOOTEN is currently on probation in Hagerstown. I spoke with his probation
officer, Roshelle SHAIN, 301-791-4747.
Counsel was legitimately concerned that the jury might discover petitioner' s prior contact
with law enforcement authorities. Furthermore, he felt that he could establish the same
point, i.e., no prior connection between petitioner and his codefendants, more effectively
in his closing argument.
In his closing statement, trial counsel strongly argued that the Commonwealth had
not presented any evidence to link petitioner with the codefendants prior to the "chance"
29
Petitioner's PCRA Exhibit 2.
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encounter in the snow storm on the night in question. Therefore, petitioner suffered no
prejudice from counsel's failure to elicit the above information on his cross examination
of Trooper Leydig.
For the reasons set forth in the above opinion, we denied petitioners request for
relief under the Post Conviction Relief Act.
DATE
Edward E. Guido, J.
Jaime Keating, Esquire
For the Commonwealth
Dirk Berry, Esquire
For the Defendant
:sld
BELOW IS THE PREVIOUS OPINION - ARE WE TO DELETE.
All three defendants were processed at the State Police Barracks in Carlisle on a
charge of possession of a small amount of marijuana. While at the barracks, Defendant
Moss seized the marijuana found in the Nissan and attempted to eat it.3°
Trooper Keith Leydig is a member of the Pennsylvania State Police Bureau of
Drug and Law Enforcement assigned to the tactical narcotics unit of Troop H. Because
of the bad weather, and because he lives nearby, he decided to go to the Carlisle Barracks
to do some paperwork on the morning of January 14, 1999.3~ The sergeant in charge
described the strange events of the night before to Trooper Leydig and asked if he
thought there might be something more going on.32 Based upon his training and
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experience, Leydig was certain that there was.
Trooper Leydig was qualified by the Commonwealth and allowed to testify,
without objection, as an expert in the field of drug investigation. He offered the
following relevant testimony:
Route 81 is a known - ! guess you can could say as a drug route. From
this area and a little bit south, drugs are normally from New York going south.
And northbound usually is where the large cash seizures are. Drug dealers
will use 81 to go north with their money, and come south with their drugs.
The fact that they were going southbound, ! believe they stated none of
them had large amounts of cash or any cash for that fact, the small baggies of
marijuana in both vehicles, and, well, let me back up. The fact that there were
two vehicles together through my training and through one particular prior
investigation, it's known that drug dealers nowadays will use two vehicles.
3o Notes of testimony, p. 53.
3~ Notes of testimony, p. 79.
32 Notes of testimony, p. 79.
33 Notes of testimony, pp. 79-80.
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One is in case one vehicle breaks down, the other can pick the people up
and the drugs are in that vehicle, put the drugs in the other vehicle, and
continue on their way. Another reason is in the drug - the car carrying the
drugs would be stopped and get arrested, somebody is there to obtain bail
money, and get them out of jail right away, just for safety. You know, safety
in numbers.
Now, the bags of marijuana also during the training and experience and
talking with informants, it's known that they will take small baggies of
marijuana and place it in easily accessible places if for one way or another
they are stopped by the police, and they do a search, they are counting on
police officers who are tattered in the middle of the night - they do travel at
night.
They are counting on police officers that don't have a lot of experience
when they find this bag, they know and they hope that the police officer will
stop searching, they will get a small - the outcome will be slight, and they can
get their vehicle back and be on their way. The fact that those bags were both
similar, the way they described it, they appeared to be identical bags.
Q. Was it significant at all that one of the cars that was involved in this
incident didn't belong to any of the three suspects?
A. Yes, that is common too, that they will either borrow a car or they will
rent a car or lease a car. Most of the times they will borrow a car, and it will
be from a user, like, ! need your car for a couple of days. ! will give you some
rocks. That way if they are stopped, or if the car breaks down, they can
abandon it and leave it. There is no way to trace them. The people that are
driving it, there is no way to trace them to the car. And if they do get arrested
with it, it's not theirs to be seized.34
Trooper Leydig obtained a search warrant for both the Camaro and Nissan.35 He
eventually found 927 grams of crack cocaine in the air cleaner housing of the Nissan.36 It
was packaged in the vehicle in such a way that he was surprised that the engine would
34 Notes of testimony, pp. 80, 81, 82
3s Notes of testimony, p. 82.
36 Notes of testimony, pp. 86, 107.
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run.37 There was little chance that it would run well.38 The drugs had a street value of at
least $200,000.39
Trooper Leydig interviewed Defendant Smith who acknowledged that he was
traveling from New York to Hagerstown.® Defendant Hooten told the trooper that he
was merely out joyriding that night.4~ When the trooper told him he was lying, Hooten
admitted that he was traveling from New York to Hagerstown.42
The crime of conspiracy is defined, in relevant part, as follows:
§ 903. Criminal conspiracy
(a) Definition of conspiracy. - A person is guilty of conspiracy with
another person or persons to commit a crime if with the intent of
promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of
them will engage in conduct which constitutes such crime...
(2) agrees to aid such other person or persons in the planning or
commission of such crime...
(e) Overt act. - No person may be convicted of conspiracy to commit a
crime unless an overt act in pursuant of such conspiracy is alleged and
proved to have been done by him or by a person with whom he
conspired.43
As our Supreme Court has stated:
"To sustain a conviction for criminal conspiracy, the Commonwealth must
establish that the defendant (1) entered an agreement to commit or aid in
an unlawful act with another person or persons, (2) with a shared criminal
intent and, (3) an overt act was done in furtherance of the conspiracy."
37 Notes of testimony, p. 86.
38 Notes of testimony, p. 94.
39 Notes of testimony, p. 87.
40 Notes of testimony, p. 89.
4~ Notes of testimony, p. 90.
42 Notes of testimony, pp. 90-91.
43 18 Pa. C.S.A. § 903.
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Com. v. Rios_, 546 Pa. 271,283,684 A.2d 1025, 1030 (1996).
We are satisfied that the facts, as related above, along with the reasonable inferences
deducible therefrom, are sufficient to establish beyond a reasonable doubt that this
Defendant is guilty of conspiracy.
The jury obviously concluded that the actions of the three Defendants fit the drug
trafficking scheme as described by Trooper Leydig. Defendant Hooten was driving a
borrowed car late at night coming from New York. There was a small amount of
marijuana planted under the front passenger seat where it would be easily discovered by
the police if they were stopped. The fact that he was acting in concert with Defendant
Moss is clearly established by the fact that Moss stopped to aid Hooten and Smith when
the Camaro ran off the road. There is no other logical explanation why a man carrying
over $200,000 worth of illegal drugs in his air cleaner would stop to help. Rather than
wait for the tow truck, all three fled the scene together in Moss's Nissan. 44 Add to this
scenario the "identical" small amounts of marijuana in the Nissan and Camaro, the
abandonment of the Camaro, and the ridiculous explanations given by Hooten for his
actions,45 the jury had more than sufficient evidence upon which to base its conclusion
that Smith and Hooten had agreed to aid Moss in the transportation of the crack cocaine.
In this Commonwealth we routinely advise jurors to use their reason and common
sense in evaluating the evidence. Looking at the above facts, there is no reasonable or
common sense explanation of the conduct of the three defendants on the night in
44 While evidence of flight alone is not sufficient to sustain a conviction, it is relevant and admissible to
establish an inference of guilt. Com. v. Gorb¥, 527 Pa. 98, 588 A.2d 902 (1991).
4s One of the various scenarios Hooten floated was that he was joyriding in a car without a driver's side
window on a cold snowy night.
12
question, other than that they were acting in concert to transport a large quantity of crack
cocaine.
13
Edward E. Guido, J.
Jaime Keating, Esquire
For the Commonwealth
Michael A. Scherer, Esquire
For the Defendant
:sld
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