HomeMy WebLinkAboutCP-21-CR-0003355-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CP-21-CR–3355–2009
:
v. : CHARGE: UNLAWFUL DELIVERY,
: MANUFACTURE OR POSSESSION WITH
: INTENT TO DELIVER A SCHEDULE II,
: CONTROLLED SUBSTANCE – COCAINE
CONWAY R. BROWN :
OTN: L526973 – 6 : AFFIANT: DET. JEFFREY KURTZ
IN RE: OPINION PURSUANT TO PA.R.A.P. 1925
Ebert, J., January 9, 2014 –
In this criminal case the Defendant, Conway R. Brown, is appealing the denial of
his Post Conviction Relief Act (PCRA). Defendant specifically complains of the
following on appeal:
1. It is respectfully submitted that the Honorable Trial Court committed
reversible error by not deciding the case on the merits.
2. It is respectfully submitted that the Honorable Trial Court committed
reversible error as it was not Ordered that a Brief be provided and filed.
3. It is respectfully submitted that the Honorable Trial Court committed
reversible error by not dismissing the underlying case due to prosecutorial
misconduct.
4. It is respectfully submitted that the Honorable Trial Court committed
reversible error by not reinstating the defendant’s right to appeal, due to a
matter being waived by Trial Counsel, when Cumberland County does not
1
file briefs of record.
1
Concise Statement of Matters Complained of on Appeal, filed Dec. 10, 2013
Facts and Procedural History
On December 3, 2009, Defendant was pulled over for an investigative stop
based on information Carlisle Police received from Detective Flythe of the Dauphin
County Drug Task Force. During the stop, a pat-down of Defendant’s person revealed
a bag of cocaine. As a result of the traffic stop, a search warrant was obtained for
Defendant’s residence and vehicle, where Officers found more cocaine. Defendant was
subsequently charged with the above-captioned offense. Defendant filed an Omnibus
Pretrial Motion on March 9, 2010, to suppress the evidence seized during the stop and
as a result of the search warrant. The Omnibus Pretrial Motion was denied on June 16,
2
2010.
Defendant waived a jury trial and on December 1, 2010, a voluntary stipulated
fact trial was held. The Court found Defendant guilty beyond a reasonable doubt of
Unlawful Delivery, Manufacture, or Possession with Intent to Deliver a Schedule II
3
Controlled Substance – Cocaine. Defendant was sentenced on February 8, 2011, to a
4
mandatory sentence of four to eight years in the State Correctional Institute.
Defendant filed a Notice of Appeal on February 23, 2011, and a Concise
Statement of Matters Complained Of on March 3, 2011. Essentially, on his direct
appeal, Defendant argued that the trial court erred in denying Defendant’s suppression
5
motion. Defendant’s direct appeal was denied on December 8, 2011. See
Commonwealth v. Brown, 378 MDA 2011 (Pa. Super. 2011).
2
Opinion and Order of Court, In Re: Omnibus Pretrial Motion, June 16, 2010
3
Order of Court, In Re: Non-Jury Trial, Dec. 1, 2010
4
Order of Court, In Re: Sentence, Feb. 8, 2011
5
See Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925, filed Mar. 3, 2011
2
Defendant then filed a PCRA on February 28, 2013, requesting that Defendant’s
charges be dismissed and/or his direct appeal rights be reinstated. Defendant argues
that his conviction or sentence resulted from (1) a violation of the Constitution of this
Commonwealth or the Constitution of the United States, and/or (2) ineffective
6
assistance of counsel. 42 Pa.C.S.A. § 9543. A hearing was held on May 9, 2013,
where Defendant had the opportunity to testify and to cross-examine his trial counsel,
Bryan McQuillan, Esquire. At the conclusion of the hearing, the parties were provided a
7
timeline for submitting briefs. Defendant would have thirty days after the hearing
transcript was filed to submit a brief and the Commonwealth would have fifteen days
8
after that to respond. The PCRA hearing transcript was filed on August 22, 2013.
Defendant never submitted a brief. Defendant’s PCRA was denied on October 10,
2013. Defendant filed a Motion for Reconsideration on Petition for Post-Conviction
Collateral Relief on November 13, 2013, which was denied. This appeal followed.
Discussion
I. Merits of the Case
Defendant’s first error complained of is that the court erred by not deciding the
case on the merits. This Court did not err.
This Court held a hearing on Defendant’s PCRA and examined the record in this
case before making its decision. The Order of Court issued on October 10, 2013,
denying Defendant’s PCRA reflects this. The language in the Order detailing what this
Court based its decision on states:
6
Petition for Post-Conviction Collateral Relief, filed Feb. 28, 2013
7
Notes of Testimony, In Re: Post Conviction Relief Act Hearing, 32, May 9, 2013 (hereinafter “N.T. ___”)
8
N.T. 32
3
th
AND NOW, this 10 day of October 2013, upon consideration of the
Defendant’s Petition for Post Conviction Collateral Relief, a full
examination of the record in the case and after hearing, the Defendant
having chosen not to file a brief in support of his position;
IT IS HEREBY ORDERED AND DIRECTED that Defendant’s Petition for
9
Post Conviction Collateral Relief is DENIED.(emphasis added).
This language clearly indicates that, while this Court noted that Defendant had not filed
a brief, the decision to deny Defendant’s PCRA was made upon a full examination of
the record and therefore was based on the merits.
II. Briefs
Defendant’s second error complained of is that the court erred by failing to order
that a brief be provided and filed. This Court did not err.
At the conclusion of the PCRA hearing, The Honorable M. L. Ebert, Jr. entered
the following order:
th
AND NOW, this 9 day of May, 2013, after hearing in the above-captioned
matter, IT IS HEREBY ORDERED AND DIRECTED that a transcript of the
testimony will be prepared and filed. After filing of the transcript, the
defendant will be given an opportunity to file a brief within 30 days of the
date of filing. The Commonwealth may respond within 15 days of the date
10
of the filing of the defendant’s brief.
The transcript from the PCRA hearing was filed on August 22, 2013, and is reflected on
the public docket sheet associated with this case. Therefore, Defendant had until
September 23, 2013, to file his brief. He failed to do so. Defendant was, in fact,
provided the opportunity to file a brief to this Court and now cannot claim that it was
error simply because he failed to do so. This Court did not err.
9
Order of Court, In Re: Petition for Post Conviction Collateral Relief, filed Oct. 10, 2013
10
N.T. 32.
4
III. Prosecutorial Misconduct
Defendant’s third error complained of is that the court erred in not dismissing the
charges against Defendant because of prosecutorial misconduct. It is unclear from
Defendant’s Concise Statement of Matters Complained Of exactly what prosecutorial
misconduct Defendant alleges. Upon reviewing Defendant’s Motion for Reconsideration
on Petition for Post-Conviction Collateral Relief it appears that Defendant is arguing that
he did not receive a fair trial because two different law enforcement officers testified
11
differently about the use of a confidential informant.
When reviewing a claim of prosecutorial misconduct, the court evaluates whether
a defendant received a fair trial, not a perfect one. Commonwealth v. Rios, 721 A.2d
1049, 1054 (Pa. 1998). Here, two officers involved in the investigation said different
things regarding the use of a confidential informant at the preliminary hearing and the
suppression hearing. One officer said a confidential informant was not used and
another officer said a confidential informant was involved. This is not prosecutorial
misconduct, but rather a witness credibility issue. Defendant had the opportunity to
cross-examine both officers at the respective hearings. The fact-finder evaluated any
apparent discrepancy and determined the credibility of the officers’ testimony.
Defendant’s actual trial was a stipulated fact, non-jury trial. While this Court was
provided with the transcripts from both the preliminary hearing and the suppression
hearing, no testimony was given at the trial itself. There was simply no prosecutorial
misconduct and there was no error in not dismissing the charges against Defendant.
11
Motion for Reconsideration on Petition for Post-Conviction Collateral Relief, filed Nov. 13, 2013
5
IV. Reinstating Direct Appeal
Defendant’s final error complained of is that the court erred by not reinstating
Defendant’s right to direct appeal. Defendant argues that his right to appeal should be
reinstated because his trial counsel waived an issue on appeal due to the fact that
Cumberland County does not file briefs of record. This Court did not err.
The issue waived by trial counsel was whether the suppression court violated
Pa.R.Crim.P. 203 when it allegedly considered evidence regarding the confidential
informant, when the affidavit of probable cause did not mention the confidential
informant. See Brown, 378 MDA 2011, 16-17. Rule 203 requires that at a suppression
hearing, no evidence is admissible to establish probable cause other than the affidavits
submitted to obtain the search warrant. Pa.R.Crim.P. 203(D).
It is noted that the suppression court was required to determine not only if there
was probable cause for the search warrant, but also whether the initial traffic stop and
pat-down of Defendant were valid. Those were separate issues. The suppression court
was entitled to hear and evaluate evidence relating to the confidential informant as it
related to the traffic stop and pat-down of Defendant.
Moreover, the search warrant was properly granted. The Superior Court found
that under the totality of the circumstances probable cause existed and “there was a fair
probability that drugs and other contraband would be found within [Defendant’s]
residence.” Brown, 378 MDA 2011, 21. The affidavit of probable cause clearly
indicated that the Affiant was familiar with the investigation of Defendant currently
pending, that drugs were found on Defendant, and that Defendant had been under
surveillance and was seen going into his vehicle and back inside his house before
6
leaving in a different vehicle with drugs on his person. Brown, 378 MDA 2011, 20-21. A
nexus existed between the drugs found on Defendant and his residence based on the
ongoing investigation and surveillance of Defendant. Id. Therefore, there was sufficient
probable cause for the suppression court to find the search warrant was properly
granted without considering evidence of the confidential informant. Therefore, as the
appeal issue waived by trial counsel would not have changed the outcome of
Defendant’s appeal, there was no error in denying Defendant’s request to reinstate his
right to appeal.
Conclusion
This Court did not err for the above reasons. Defendant’s PCRA should be
denied.
By the Court,
______________________
M. L. Ebert, Jr., J.
District Attorney’s Office
Christopher J. Basner, Esquire
Attorney for Defendant
2 Kings Highway West, Suite 205
Haddonfield, NJ 08033
7