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HomeMy WebLinkAbout98-2020 criminalCOMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA vs · 98-2020 CRIMINAL · o BOBBY R. BURGESS · IN RE' P.C.R.A. PETITION BEFORE HESS, J. ORDER AND NOW, this / O ~ day of February, 2000, the motion of the defendant for post-conviction relief is DENIED. BY THE COURT, K~/~. Hess, J. Jaime Keating, Esquire Chief Deputy District Attorney Jason Kutulakis, Esquire Court-appointed for the Defendant :rlm COMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA vs · 98-2020 CRIMINAL · BOBBY R. BURGESS · IN RE: P.C.R.A. PETITION BEFORE HESS, J. OPINION AND ORDER Defendant Bobby Burgess was charged by the Lower Allen Township Police Department with Indecent Assault, Involuntary Deviate Sexual Intercourse and Corruption of Minors. On April 27, 1999 defendant appeared before this court and pled guilty and was sentenced pursuant to a negotiated plea agreement to the charge of Involuntary Sexual Deviate Intercourse and a period of incarceration of not less than four years and not more than eight years. On July 29, 1999 the defendant filed a post conviction relief petition with the Cumberland County Court of Common Pleas to allow the defendant to withdraw his guilty plea, based on the defendant's claim that his counsel at the time of the plea agreement was ineffective. In October of 1999, current defense counsel was appointed. The defendant appeared before the Honorable Kevin A. Hess on November 3, 1999 for a hearing pursuant to his petition for post conviction relief. The defendant's lone contention for post-conviction relief is that his guilty plea counsel was ineffective for failing to advise him that legal grounds existed for the suppression of a taped conversation between the defendant and his son that contained incriminating statements made by the defendant. Section 9543 of the Post Conviction Relief Act (PCRA) states: 98-2020 CRIMINAL To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following' (1) That the petitioner has been convicted of a crime under the laws of the Commonwealth and is at the time relief is granted: (i) currently serving a sentence of imprisonment, probation or parole for the crime... (2) That the conviction or sentence resulted from one or more of the following:... (ii) ineffective 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. Section 9543. The Court of Common Pleas has original jurisdiction ~over a proceeding under the Post Conviction Relief Act. See 42 Pa.C.S. Section 9545. "In order to preserve a claim of ineffectiveness of counsel, under the PCRA, the claims must be raised at the earliest possible stage in the proceedings at which the allegedly ineffective counsel is no longer representing the claimant." Commonwealth v. Griffin, 644 A.2d 1167, 1170, 537 Pa. 447, 554 (Pa. 1994). The defendant in the instant proceeding has not challenged the ineffectiveness of guilty plea counsel previously, nor has he been represented in any other proceeding since his guilty plea. Therefore the defendant's PCRA claim as to the effectiveness of guilty plea counsel is properly before this court. Trial counsel is presumed to have been effective; the burden is on the defendant to prove otherwise. See Commonwealth v. Fowler, 670 A.2d 153, 155,447 Pa. Super. 534, 539 (Pa. Super. 1995). To establish the ineffectiveness of prior counsel, the defendant must establish that · "1) his underlying claim has arguable merit, 2)the course chosen by 98-2020 CRIMINAL counsel could have had no reasonable basis designed to serve the defendant's interest, and 3) the defendant was prejudiced by counsel's act or omission." Id. The defendant bases his claim that guilty plea counsel was ineffective on counsel's failure to advise defendant that there were legal grounds to exclude the recorded phone conversation that took place between the defendant and his son Eddie Burgess. The defendant claims that the holding in Commonwealth v. Brion, 652 A.2d 287, 539 Pa. 256 (Pa. 1994), stands for the proposition that Article 1, Section 8 of the Pennsylvania Constitution demands that prior judicial approval was required before the words spoken by the defendant over the telephone in his home could be recorded. Brion dealt with whether the police could send a confidential informant into the home of an individual to electronically record conversations between the individual and the informant and then transmit those conversations back to the police. See id.._:, at 652 A.2d at 287, 539 Pa. at 265-7. The Pennsylvania Supreme Court held that "with respect to oral communications occurring within one's home, interception pursuant to the Wiretapping and Electronic Surveillance Control Act (18 Pa.C.S. Section 5704(2)(ii)) can only be deemed constitutional under Article 1, Section 8 of the Pennsylvania Constitution if there has been a prior determination of probable cause by a neutral, judicial authority." Brion. at 652 A.2d at 290, 539 Pa. at 261. The defendant in the instant proceeding offers the Pennsylvania Superior Court's recent holding in Commonwealth v. Damsh, 740 A.2d 722 (Pa. Super. Ct. 1999) in support of his argument that Brion dictates the outcome of his ineffectiveness of counsel claim. Darush dealt with the consensual recording of a telephone conversation between the appellant and an undercover agent. See id. at 723. Damsh was in his home at the time he spoke with the agent over the phone. See id. The Superior court ruled that 98-2020 CRIMINAL "Brion provides no basis for a distinction between the recording of words spoken in one's home directly to a person wearing a body wire, and those spoken from one's home over a telephone to a person who has consented to the recording of the conversation .... Thus, we conclude under the dictates of Brion and Schaeffer [652 A.2d 294, 539 Pa. 272 (Pa. 1994)] 1 that regardless of whether the intercept occurs by one wearing a body wire into the home or by one phoning into the home and consenting to the simultaneous recording [of] the conversation, a legitimate expectation of privacy enjoyed in one's home is violated in either instance." Damsh, 740 A.2d at 726. The defendant in the instant proceeding claims that his guilty plea counsel was ineffective for failing to advise him that under current law as embodied in Brion there was grounds for suppression of the taped phone conversation between defendant and his brother Eddie Burgess. Brion dealt with an "oral communication" between the appellant and an informant that took place within the appellant's home. See Brion, 652 A.2d at 289, 539 Pa. at 262. Darush then extended that holding to provide the same Article 1, Section 8 privacy protections to telephone conversations. See Damsh, 740 A.2d at 726. Conversation between two parties via telephone represents a means of communication requiring an electronic transfer outside of one's home, and therefore telephone communication falls outside of the Brion court's holding which covered only oral communication within one's home. See Brion, 652 A.2d at 289, 539 Pa. at 262. We are satisfied that the holding in Damsh represents a substantive change in the law that, moreover, became effective after the defendant entered his guilty plea. ~ In Schaeffer, the Pennsylvania Supreme Court affirmed the Superior Court's ruling that the Pennsylvania Constitution requires a prior issuance of a warrant based upon probable cause before an indiVidual's conversation within his home can be recorded by a confidential informant wearing a body wire. See Schaeffer, 652 A.2d 294, 539 Pa. 272 (Pa. 1994). 4 98-2020 CRIMINAL Turning to the merits of the defendant's claim of ineffectiveness of counsel, the law in Pennsylvania is well settled with regard to counsel's failure to predict a substantive change in the law. The Pennsylvania Supreme Court has stated that "the adequacy of counsel's representation will be assessed in light of the standards in effect at the time of the representation... Counsel need not predict changes in the law." Commonwealth v. Pizzo, 602 A.2d 823,825,529 Pa. 155, 159 (Pa. 1992); see also Commonwealth v. Christy, 656 A.2d 877, 889, 540 Pa. 192, 216 (Pa. 1995) ("counsel is not ineffective for failing to predict a change in the law"). Therefore, guilty plea counsel's effectiveness will be judged by the state of the laW at the time the plea was entered. Guilty plea counsel cannot be determined ineffective for failure to predict the change in the law regarding the consensual recording of telephone conversations, as represented by Damsh, because Damsh was decided roughly five months after defendant entered his guilty plea. ORDER AND NOW, this lo ' day of February, 2000, the motion of the defendant for post-conviction relief is DENIED. B Y THE COURT, Kev/~. Hess, J. Jaime Keating, Esquire Chief Deputy District Attorney Jason Kutulakis, Esquire Court-appointed for the Defendant :rlm