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HomeMy WebLinkAboutCP-21-CR-486-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : : ANDRE ANTONIO MILLER : CP-21-CR-0486-2008 IN RE: AMENDED P.C.R.A. PETITION BEFORE HESS, P.J. OPINION and ORDER In this criminal case, following a bench trial, Defendant was found guilty of Possession With Intent to Deliver (“PWID”) a Controlled Substance (Marijuana), a violation of 35 P.S. § 780-113(a)(30). (Order of Court, Mar. 3, 2009). He was thereafter sentenced to a period of imprisonment in a state correctional institution of five (5) years, which represented both the applicable mandatory minimum and the maximum sentence allowed by law. (Order of Court, Apr. 21, 2009). From the judgment of sentence, Defendant timely filed a direct appeal to the Pennsylvania Superior Court. (Notice of Appeal, filed May 5, 2009). The issue pursued on appeal was whether the suppression court erred when it determined that probable cause existed for a warrantless search. (Defendant’s Concise Statement of Matters Complained of on Appeal, filed Jun. 3, 2009). The Superior Court affirmed the judgment of sentence on June 4, 2010. Commonwealth v. Miller, No. 771-MDA-2009 Criminal Court (Pa.Super. June 4, 2010). On May 26, 2011, Defendant timely filed a Motion for Post-Conviction Collateral Relief. (See Motion for Post-Conviction Collateral Relief, filed May 26, 2011). On June 1, 2011, Gregory Barton Abeln, Esq., was appointed as counsel to represent Defendant, and, on February 24, 2012, counsel filed an amended petition under the Post-Conviction Relief Act (P.C.R.A.) on behalf of Defendant. (See Amended Petition for Relief under the Post-Conviction Relief Act, filed Feb. 24, 2012) (hereinafter “Amend. P.C.R.A., ¶__”). Defendant’s petition alleges that his attorney at the underlying suppression hearing, Assistant Public Defender Arla Waller, was ineffective in that she did not “take sufficient time to meet with him and that she did not otherwise represent him properly throughout the proceedings.” (Amend. P.C.R.A., ¶ 9). Defendant’s petition, as well as his testimony at the PCRA hearing, also appears to allege that his trial counsel, Paul Orr, Esq., was additionally ineffective for failing to call Defendant to the witness stand to testify on his own behalf. Specifically, Defendant asserts that he was denied the effective assistance of th counsel, as guaranteed by Article 1, Section 9 of the Pennsylvania Constitution and the 6 and th 14 Amendments to the United States Constitution, in the following ways: (a)Counsel failed to adequately investigate and prepare the defense in this case. (b)Counsel failed to watch the video recording of the vehicle stop and therefore failed to challenge the officer’s testimony and the credibility of his statements. (c)Counsel did not call the petitioner to the witness stand to allow him to challenge the officer’s statements to therefore preserve his objections to the testimony despite his request to testify. (In neither the suppression hearing on 6/17/08 nor the non-jury trial on 2/2/09 was a colloquy conducted as to the Petitioner’s right to take the stand and testify on his own behalf.) (Amend. P.C.R.A., ¶ 11). On March 1, 2012, a hearing was held on the instant petition. The Defendant testified on his own behalf but did not present any other witnesses. (Notes of Testimony, In Re: PCRA Petition, Mar. 1, 2012 (hereafter “P.C.R.A. N.T. __”)). The Commonwealth presented the testimony of Arla Waller. (P.C.R.A. N.T.). The facts of this case may be summarized as follows. As a result of a traffic stop occurring on February 5, 2009, Defendant Andre Miller (hereinafter “Defendant” or “Petitioner”) was charged with Possession With Intent to Deliver (“PWID”) a Controlled 2 Substance (Marijuana). (Information, filed Apr. 15, 2008). Prior to trial, Defendant filed an omnibus pre-trial motion alleging that a warrantless roadside search of his vehicle was unconstitutional and seeking suppression of the evidence as a result. (Omnibus Pre-Trial Motion, filed May 15, 2008). On June 17, 2008, a hearing was held on Defendant’s suppression motion. At that time, Defendant was represented by Cumberland County Assistant Public Defender Arla Waller. (Notes of Testimony, In Re: Suppression Hearing, Jun. 17, 2008 (hereafter “Suppression N.T. __”)). The Commonwealth presented the testimony of both the arresting officer, Pennsylvania State Trooper Adam Reed, and the officer assigned to conduct an inventory search of the vehicle upon its return to the Pennsylvania State Police barracks, Trooper Anthony Todaro. (Suppression N.T. 4, 24). Trooper Reed testified that, at approximately 9:05 a.m. on February 5, 2008, Defendant was driving southbound on I-81 near Carlisle. (Suppression N.T. 5). Defendant passed by Trooper Reed who, at that time, was performing speed checks by way of a 1 handheld radar unit. (Suppression N.T. 6). Trooper Reed observed that Defendant was exceeding the posted speed limit by more than twelve (12) miles per hour and gave chase. (Suppression N.T. 7). Before a traffic stop could be initiated, Defendant exited I-81 onto State Route 641. (Suppression N.T. 7). Trooper Reed continued to follow the vehicle and was able to effectuate a traffic stop a short distance after exiting the interstate. (Suppression N.T. 8). According to Trooper Reed’s suppression hearing testimony, the interaction proceeded as follows: Trooper Reed approached Defendant’s vehicle and observed that Defendant was the sole occupant. (Suppression N.T. 8). Defendant indicated that he was traveling back to Georgia from New York City, where he had attended a family reunion. (Suppression N.T. 13). Upon 1 Commonwealth’s Exhibit 1, the accuracy and calibration certificate for Trooper Reed’s radar unit, was admitted into the record at the suppression hearing. (Commonwealth Ex. 1, admitted Jun. 17, 2008). 3 further questioning, Defendant provided the trooper with inconsistent answers: he first indicated that the reunion was on his father’s side and later stated that it was his mother’s side. (Suppression N.T. 13). Additionally, Defendant presented an extremely nervous demeanor, and Trooper Reed testified that Defendant was “shaking violently.” (Suppression N.T. 8). The trooper also testified that his suspicions were raised by the fact that Defendant was operating a rental vehicle, which had apparently been leased to a Marylia Harris, and also which, according to the rental agreement, was to be returned to its Georgia origination point within a few hours of the traffic stop. (Suppression N.T. 9-11). Moreover, Trooper Reed specifically testified that, as he was bending over and speaking with Defendant close to the interior of the vehicle, he “[caught] the odor of raw marijuana emanating from inside the vehicle.” (Suppression N.T. 12). Armed with the above knowledge, and accompanied by backup troopers, Trooper Reed conducted a roadside search of Defendant’s vehicle which revealed the presence of a large quantity of marijuana located in the trunk of the rental car. (Suppression N.T. 16-17). At the suppression hearing, Arla Waller, as counsel for Defendant, engaged in cross- examination of Trooper Reed, which revealed the following: Trooper Reed testified that, although he had stated just moments earlier that Defendant was “shaking violently” during the traffic stop, the trooper did not include that fact in his report. (Suppression N.T. 19). Rather, the report indicated only that Defendant was “overly nervous.” (Suppression N.T. 19). Additionally, Ms. Waller engaged Trooper Reed in the following dialogue: Q: Now, you said that initially - - you testified this morning that initially you smelled the odor of raw marijuana from the interior of the vehicle, is that correct? A: Yes. It’s a practice of mine on a traffic stop upon conversing with the operator I’ll put my head low into the vehicle. Q: And, again, that information is not listed in your report also, is that correct? 4 A: I don’t believe it is. Q: You say in your - - is it correct that you say in your report that upon opening the trunk of the vehicle you detected the odor of marijuana? A: The very strong odor, yes. Q: When you opened the trunk? A: Correct. (Suppression N.T. 20). Ms. Waller also questioned Trooper Reed about the location of the marijuana, whereupon the trooper indicated that, indeed, there was no marijuana found in the interior of the vehicle; rather, the only contraband found was located in sealed boxes stored within the trunk. (Suppression N.T. 22). Ms. Waller did not question Trooper Reed regarding the reason for the traffic stop, instead focusing her inquiry on the quantum of probable cause which the trooper had as justification for the warrantless search. (Suppression N.T. 19-23). After taking the matter under advisement, the Honorable Edgar B. Bayley issued an Order and Opinion denying Defendant’s suppression motion and finding that Trooper Reed possessed sufficient probable cause to conduct the warrantless roadside search of Defendant’s 2 vehicle. (Opinion and Order of Court, filed Jun. 20, 2008). Following a bench trial during which Defendant did not testify, Defendant was found guilty of Possession With Intent to Deliver (“PWID”) a Controlled Substance (Marijuana), a violation of 35 P.S. § 780-113(a)(30), and was subsequently sentenced. (Order of Court, Mar. 3, 2009); (Order of Court, Apr. 21, 2009). At the PCRA hearing, Defendant’s counsel elicited the following testimony from Defendant regarding the specific issues raised in the petition: 2 On June 4, 2010, the Superior Court affirmed the judgment of sentence and upheld Judge Bayley’s determination of probable cause. Commonwealth v. Miller, No. 771-MDA-2009 Criminal Court (Pa.Super. June 4, 2010). 5 Q: So is it fair to say that the two main issues that you want to bring up today is the fact that you were not either told you could testify or were allowed to testify at either [the suppression hearing or the non-jury trial], is that correct? A: Yes. Q: And the other one is that you feel that the stop was a result of racial profiling? A: Yes, sir. Q: Is there anything else that you want to bring up to the Judge? A: Yes, sir. In the case of Ms. Arla Waller I feel as if she should have asked more specific questions. I think she failed to allow Judge Bayley to even doubt the statements of Trooper Reed. (P.C.R.A. N.T. 9.) On cross-examination, Defendant agreed with the statement of the District Attorney that, with regard to the “specific questions” matter, Defendant has taken issue “not that [suppression counsel] didn’t bring up the discrepancies, which she did, but rather the manner in which she did it[.]” (P.C.R.A. N.T. 13). At the PCRA hearing, Defendant testified to the following regarding the possibility of his testifying at the suppression hearing: Q: So you knew that you could testify? A: She did not ask me to testify. Q: But my question is you knew you could testify, correct? A: Yes, sir. Q: At the suppression hearing you testified that you can’t really remember if you discussed it with her or if she discussed it with you, is that correct? A: Exactly. (P.C.R.A. N.T. 13). 6 With regard to his ability to testify at the non-jury trial, Defendant stated that he was, indeed, informed by Mr. Orr that it was his “right to testify if [he] wanted to.” (P.C.R.A. N.T. 14). Defendant also testified that, although he was informed of his right to testify, Mr. Orr advised him that it would be better if he did not, yet the choice was ultimately left to Defendant as to whether or not to take the stand. (P.C.R.A. N.T. 15). At the hearing, the Commonwealth presented the testimony of Defendant’s suppression counsel, who testified, inter alia, to the following: Q: Were you Mr. Miller’s attorney, at least for the suppression phase of the case? A: Yes. Q: Do you remember specifically talking to him about whether or not he should testify? A: I don’t remember any specific conversation with him, and that’s just because the hearing was a number of years ago at this point. I usually do discuss that with clients, whether it is a suppression hearing or a nonjury trial or a jury trial. Q: Especially for a suppression hearing, is defense testimony typically critical during a suppression hearing? A: The majority of the time it is not, but sometimes you do need to have your client take the stand. Q: And if you need to have your client take the stand, that would be something you would discuss with them? A: Absolutely. Q: And you mentioned earlier it is your normal practice to discuss those type of things with your client? A: Yes. (P.C.R.A. N.T. 17-18). On cross-examination, PCRA counsel eliciting the following testimony from Defendant’s suppression counsel regarding the traffic stop and the issue of racial profiling: 7 Q: Don’t you think that that’s an important part of a suppression, if the person’s motive is to stop the car is based upon racial profiling, then wouldn’t that be something you would want to put on the record? A: If I thought it was important in that case, it would be put on the record. Q: And I assume you didn’t think it was important? A: If it is not in the suppression transcript, then, no, I did not bring it up. (P.C.R.A. N.T. 19-20). Defendant’s suppression counsel also stated that, because she had gotten Trooper Reed to admit to certain discrepancies between his report and testimony, she concluded that it was unnecessary to call her client to the stand during the suppression hearing. (P.C.R.A. N.T. 20). In general, in order to be eligible for post-conviction relief based upon inadequate representation, “the petitioner must plead and prove by a preponderance of the evidence . . . [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). Additionally, a petitioner must establish that the claims of error raised in his PCRA petition have not been previously litigated or waived, and that “the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.” 42 Pa.C.S. § 9543(a)(3) and (4); Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011). There are three elements a petitioner must prove in order to prevail on a claim of ineffective assistance of counsel. Id.; Commonwealth v. Blount, 538 Pa. 156, 647 A.2d 199 (1994); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2025 (1984). First, the petitioner must prove that the “underlying claim is of arguable merit.” Blount, 538 Pa. at 163, 647 A.2d at 203. Second, it must be proved that 8 counsel’s action or inaction was not grounded on any “reasonable basis designed to effectuate [the client’s] interest.” Id. Third, the petitioner must prove that “counsel’s ineffectiveness prejudiced him.” Id. With regard to the reasonable basis prong, “we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel’s decisions had any reasonable basis.” Chmiel, 30 A.3d at 1127 (quoting Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 594 (2007)). A counsel’s chosen strategy will be found to have lacked the requisite reasonable basis “only if Appellant proves that ‘an alternative not chosen offered a potential for success substantially greater than the course actually pursued.’” Id. (quoting Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006)). With regard to the third, prejudice prong, prejudice in this context generally means that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Pierce, 515 Pa. at 158, 527 A.2d at 975. Moreover, to establish this prong, the petitioner must show that a reasonable probability exists that the outcome of the proceedings would have been different but for counsel’s ineffectiveness. Chmiel, 30 A.3d at 1127-28 (citing Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945, 954 (2008)). “We stress that boilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove that counsel was ineffective.” Id. at 1128 (quoting Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011)). When analyzing a petition for post- conviction collateral relief, a court must begin with the presumption that counsel was effective, and the burden is on the petitioner to show otherwise. Commonwealth v. duPont, 2004 PA Super 364, ¶ 8, 860 A.2d 525, 531. We turn, first, to Defendant’s contention that his suppression counsel was ineffective for failing to “adequately investigate and prepare the defense in this case.” In light of Defendant’s 9 PCRA hearing testimony, we construe this as an assertion of ineffective assistance of counsel for reasons relating to Ms. Waller’s decision or failure to bring up a “racial profiling” motive for the traffic stop at the suppression hearing. We are satisfied that the racial profiling argument was not of arguable merit in this case. Defendant raises the racial profiling argument based on a statement made by Trooper Reed at the non-jury trial where the trooper agreed with a statement of Defendant’s trial counsel that, once the trooper had initiated the traffic stop, checked Defendant’s driver’s license, and was holding him at the scene, the trooper was not “going to let him go, a young Black kid driving a rental car.” (Notes of Testimony, In Re: Non-Jury Trial Proceedings, 25, Feb. 2, 2009 (hereafter “Non-Jury Trial N.T. __”)). Trooper Reed’s agreement with trial counsel’s statement goes not to the impetus of the stop, but rather the trooper’s motive for holding Defendant at the scene potentially beyond the scope of a legitimate traffic stop. At the suppression hearing, Trooper Reed testified that he observed that Defendant was operating his vehicle in excess the posted speed limit by more than twelve (12) miles per hour. No evidence or testimony was presented of record at the suppression hearing, non-jury trial, or PCRA hearing as to a racial motive as the basis of the traffic stop. There is, simply, no factual basis to support Defendant’s suggestion that suppression counsel should have raised a “racial profiling” motive as the impetus for the traffic stop. Defendant next argues that suppression counsel was ineffective for failing to “watch the video recording of the vehicle stop and therefore failed to challenge the officer’s testimony and the credibility of his statements.” As noted above, a counsel’s chosen strategy will be found to lack the requisite reasonable basis “only if Appellant proves that ‘an alternative not chosen offered a potential for success substantially greater than the course actually pursued.’” Chmiel, 10 30 A.3d at 1127. Defendant, no doubt, would have preferred that suppression counsel’s questioning was so effective in impeaching Trooper Reed’s testimony that the suppression judge would have found in his favor, but Defendant simply has not offered up an alternative strategy which would have accomplished this. Instead, Defendant admitted at the PCRA hearing that suppression counsel did, in fact, bring up a variety of discrepancies between the trooper’s report and his testimony at the suppression hearing. It is unclear what more she should or could have done. Because Defendant has not proven that an alternative strategy offered a substantially greater potential for success than that chosen by suppression counsel, we do not find her to have been ineffective in her questioning of Trooper Reed. Lastly, Defendant contends that his suppression counsel and his trial counsel were ineffective for failing to call him to the witness stand or for failing to inform him of his right to do so. To address this issue, we are guided by the Superior Court’s decision in Commonwealth v. Thomas, 783 A.2d 328 (Pa.Super. 2001), which provided that a defendant’s decision to testify on his own behalf: is ultimately to be made by the accused after full consultation with counsel. In order to support a claim that counsel was ineffective for “failing to call the appellant to the stand,” [the appellant] must demonstrate either that (1) counsel interfered with his client’s freedom to testify, or (2) counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision by the client not to testify in his own behalf. Id. at 334 (quoting Commonwealth v. Preston, 418 Pa.Super. 125, 613 A.2d 603, 605 (1992), appeal denied, 533 Pa. 658, 625 A.2d 1192 (1993)). “A claim of strategic error absent a showing of specific incidents of counsel’s impropriety will not satisfy this standard.” Id. at 334- 35. Moreover, “[c]ounsel is not ineffective where counsel’s decision not to call the defendant was reasonable.” Commonwealth v. O’Bidos, 2004 PA Super 131, ¶ 13, 849 A.2d 243, 250 (quoting Commonwealth v. Breisch, 719 A.2d 352, 355 (Pa.Super. 1998)). 11 Defendant’s suppression counsel testified at the PCRA hearing that, although she could not remember specifically whether she had a conversation with Defendant about his taking the stand, she stated that it is her “normal practice” to discuss with a client his right to testify. (P.C.R.A. N.T. 17-18). Additionally, suppression counsel testified that she did not believe Defendant’s testimony to be required because she was able to elicit admissions of discrepancies by Trooper Reed himself, and, therefore, Defendant’s testimony was not necessary to impeach the officer. Defendant himself testified at the PCRA hearing that, although he could not remember a conversation with his suppression counsel regarding his right to take the stand, he knew that he did have that right. (P.C.R.A. N.T. 13). After review, we are convinced that the record lacks any indication that suppression counsel interfered with Defendant’s freedom to testify or unreasonably advised him not to testify. Turning to Defendant’s contention that trial counsel was ineffective for failing to call him to the stand, we find that this claim too must fail. The record reveals that, with regard to his ability to testify at the non-jury trial, Defendant stated that he was, indeed, informed by Mr. Orr that it was his “right to testify if [he] wanted to.” (P.C.R.A. N.T. 14). Defendant also testified that, although he was informed of his right to testify, trial counsel advised him that it would be better if he did not, yet the choice was ultimately left to Defendant as to whether or not to take the stand. (P.C.R.A. N.T. 15). Because the decision not to testify was ultimately made by Defendant after advice and consultation with his attorney, we therefore do not find Defendant’s trial counsel to have been ineffective for failing to call Defendant as a witness in his own defense. 12 ORDER th AND NOW, this 30 day of April, 2012, upon consideration of Defendant’s Amended Petition for Relief Under the Post-Conviction Relief Act, and following hearing, Defendant’s petition is DENIED. BY THE COURT, Kevin A. Hess, P.J. Matthew Smith, Esquire Chief Deputy District Attorney Gregory B. Abeln, Esquire For the Defendant :rlm 13 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : : ANDRE ANTONIO MILLER : CP-21-CR-0486-2008 IN RE: AMENDED P.C.R.A. PETITION BEFORE HESS, P.J. ORDER th AND NOW, this 30 day of April, 2012, upon consideration of Defendant’s Amended Petition for Relief Under the Post-Conviction Relief Act, and following hearing, Defendant’s petition is DENIED. BY THE COURT, Kevin A. Hess, P.J. Matthew Smith, Esquire Chief Deputy District Attorney Gregory B. Abeln, Esquire For the Defendant :rlm