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HomeMy WebLinkAboutCP-21-CR-0000046-2016 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-0046-2016 v. : CHARGES: (1) RESISTING ARREST OR : OTHER LAW : ENFORCEMENT : (2) OBEDIENCE TO TRAFFIC : CONTROL DEVICES : (3) OPERATION OF VEHICLE : WITHOUT OFFICIAL : CERTIFICATE OF : INSPECTION : (4) PROHIBITION ON : EXPENDITURES FOR : EMISSION INSPECTION : PROGRAM : (5) VIOLATIONS OF USE OF : CERTIFICATE OF : INSPECTION : ABU BAKARR NABIE : AFFIANT: TPR. JOSEPH MANNING OTN: T725625-5 : PSP – CARLISLE IN RE: DEFENDANT’S POST SENTENCE MOTION OPINION and ORDER OF COURT BREWBAKER, J., January ___, 2017 Before the Court are Defendant Abu Bakarr Nabie’s Post Sentence Motion. A hearing on the motion took place on December 20, 2016. For the reasons that follow, the motion will be granted. Facts The facts of the present case were previously established in this Court’s August 26, 2016 opinion. The facts relevant to Defendant’s Post Sentence Motion may be summarized as follows. On November 13, 2015, at approximately 1:00 p.m., Pennsylvania State Police Officers 1 Joseph Manning and Trooper Lane (née Black) came across Abu Bakarr Nabie (hereinafter “Defendant”) when he was standing next to his vehicle in the median of Interstate 81 near mile marker 52.2. Defendant’s vehicle was in a small paved area between the northbound and southbound lanes of Interstate 81 which is a restricted crossover area for emergency vehicles. Upon approach, the Troopers saw Defendant getting ready to pour something into his gas tank from a clear plastic bottle; Defendant affirmed that it was gasoline. Trooper Manning noticed that the inspection and registration stickers on Defendant’s vehicle from the outside appeared to be “not right,” as they were crumbled and not flush on the windshield. Because Defendant’s driver’s door was open and before talking to Defendant, Trooper Manning walked around the open door and stuck his head inside the vehicle in an effort to see the back of the stickers, which he then noticed appeared to be blank. The Troopers requested Defendant’s driver’s license, registration, and proof of insurance, to which Defendant asked why and proceeded to indicate that he did not need to provide such information to them. Subsequently, to summarize, Trooper Manning attempted to grab Defendant to prevent him from entering his vehicle, and Defendant resisted. It took four officers and significant pushing, pulling and struggling for Defendant to eventually be taken into custody. Defendant testified that his car had run out of gas, lost power steering, and the median was the only location where he could safely pull over. Approximately three weeks prior to Defendant’s trial, his counsel, Attorney Morgan, was terminated from her employment with the Cumberland County Public Defender’s Office and Attorney Toomey was appointed in her place. Following a nonjury trial on August 26, 2016, Defendant was found guilty of Counts I, II, III, and IV, and not guilty of Count V. In the 1 The Criminal Information incorrectly spells Defendant’s last name as Nabbie. Defendant’s last name is Nabie. An order correcting the caption was entered on September 19, 2016. 2 opinion, the Court noted that “\[w\]hile there were significant issues presented and argued regarding the Troopers looking inside the vehicle and actually physically touching Defendant, the proper forum for addressing those issues would be a suppression motion and not during a trial.” Trial Ct. Op., August 26, 2016, at 3 ¶ 3. Defendant was directed to appear for sentencing on October 18, 2016. On September 22, 2016, Attorney Toomey filed a motion to withdraw prior to sentencing, which this Court granted on October 4, 2016. Sentencing was continued until November 7, 2016, at which time Defendant was sentenced. Defendant’s new counsel, Attorney Wolf, then filed the instant Post Sentence Motion alleging prior counsel’s ineffectiveness for failure to file a suppression motion. A hearing on the post sentence motions occurred on December 20, 2016 at which time both of Defendant’s prior attorneys, Attorney Morgan and Attorney Toomey, testified. Attorney Morgan testified that she received the video of the traffic stop only a few days 2 before the trial was originally scheduled on July 6, 2016. She reviewed the video along with several other attorneys with the Public Defender’s Office. Attorney Morgan stated that she did not see the suppression issue regarding Trooper Manning’s looking into Defendant’s vehicle or whether Defendant’s arrest was lawful. Attorney Morgan testified that the decision not to file a suppression motion was not part of any trial strategy, it was simply an error, and in hindsight she should have filed such a motion. Attorney Toomey testified that while he was appointed to the case two to three weeks prior to the trial, he did not receive the case materials and begin reviewing them until approximately one week before the trial. Attorney Toomey stated that he also did not see the suppression issues until trial had already started, at which point it was too late to seek the 2 Trial was initially scheduled for July 6, 2016, but due to Defendant not being notified of the trial date, the trial was rescheduled to August 26, 2016. 3 suppression of evidence. Attorney Toomey testified that he attempted to create the best record he could of the issue at trial. Analysis We begin by noting that Defendant is permitted to raise the issue of ineffective assistance of counsel in a post sentence motion. See generally Pa. R.Crim.P. 720. While the general rule is that ineffectiveness may only be raised on collateral review, our Supreme Court in Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003) held that an exception existed when counsel raised the ineffectiveness claim in a post sentence motion. Id. at 853-54. The Bomar court reasoned that the trial court is in the best position to review claims of trial counsel’s errors as the trial court is the one to observe first-hand the allegedly deficient performance. Id. at 854. Additionally, the trial court is able to create a record on the issue by holding hearings and making findings of fact. Id. The rule from Bomar was affirmed by the Supreme Court in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). This Court may therefore consider the issue of ineffectiveness. In order to prevail on a claim of ineffective assistance of counsel, a defendant must overcome the presumption of competence by showing that: (1) the underlying claim is of arguable merit; (2) the particular course of conduct taken by counsel did not have some reasonable basis designed to serve the defendant’s interest; and (3) but for counsel’s ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001); Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999). A failure to satisfy any prong of the test will result in the motion being denied. Pierce, 786 A.2d at 221-22. 4 Defendant argues in his post sentence motion that Trooper Manning entered the passenger compartment of Defendant’s vehicle without consent or a warrant to collect information about the inspection status of Defendant’s vehicle. Defendant contends that the search was unconstitutional and therefore any information and events occurring subsequent to that action should be suppressed as fruit of the poisonous tree. Defendant also notes that while stopping or standing in a highway crossover is a violation of 75 Pa. C.S. § 3353(a)(1)(ix), an exception exists when a vehicle is “disabled in such a manner and to such an extent that it is impossible to avoid stopping and temporarily leaving the vehicle in that position.” 75 Pa. C.S. § 3351(b). Defendant therefore argues that the Troopers had no reasonable suspicion to begin a police encounter because Defendant’s actions were not in violation of the Motor Vehicle Code. Consequently, Defendant contends his arrest was unlawful and he could not have been found guilty of resisting an unlawful arrest. The Commonwealth’s position is that Defendant’s only remedy to challenge his counsel’s ineffectiveness is through collateral relief. We first examine whether Defendant’s claim is of arguable merit. We find that while Defendant was stopped on the highway in the emergency crossover, he was clearly disabled and was attempting to put gas into his vehicle. Therefore, the exception under 75 Pa. C.S. § 3351(b) likely applies. The only justification remaining for the Troopers to arrest Defendant was the invalid inspection stickers. However, Trooper Manning testified at trial that the appearance of the stickers from the outside alone was not enough to justify a search. It was not until Trooper Manning stuck his head inside Defendant’s vehicle that he observed that the backs of the stickers were apparently blank, which is a violation of the Motor Vehicle Code. This search by Trooper Manning was arguably unconstitutional, and therefore any additional evidence obtained would be fruit of the poisonous tree and suppressible. Without reasonable suspicion to suspect a 5 violation of the Motor Vehicle Code, the Troopers would consequently lack justification to attempt to arrest Defendant and therefore his arrest could be deemed to be unlawful. For these reasons, Defendant has presented sufficient evidence to show that his claim is of arguable merit. We next consider whether the particular course of conduct taken by counsel did not have some reasonable basis designed to serve the defendant’s interest. The failure to file a suppression motion was not part of any trial strategy, as testified to by both Attorney Morgan and Attorney Toomey. Both attorneys stated that they simply missed the suppression issue. As the oversight of an important legal issue is clearly not in a defendant’s best interest, the second prong of the ineffectiveness test has been satisfied. The third and final analysis is whether, but for counsel’s ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different. While we are not definitively deciding the issue at this time, if a suppression motion had been filed and Defendant had been successful, he very likely would not have been found guilty of the charges as much of the evidence introduced at trial would have been suppressed. As this satisfied the third and final prong of the ineffectiveness test, a new trial is warranted. For the above stated reasons, Defendant’s Post Sentence Motion will be granted. ORDER th AND NOW, this 6 day of January, 2017, upon consideration ofDefendant’s Post GRANTED Sentence Motion, the Motion is hereby . The judgment of sentence entered VACATED November 7, 2016 is hereby and the Defendant’s right to request a bill of 6 particulars, to move for discovery, and to file and serve an omnibus pretrial motion, if any, are hereby reinstated, with the respective time limits running from this date. BY THE COURT, __________________________ Jessica E. Brewbaker, J. Daniel J. Sodus, Esquire Sr. Assistant District Attorney Nathan Wolf, Esquire Court-appointed for Defendant Bradon Toomey, Esquire Assistant Public Defender :rlm 7 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-0046-2016 v. : CHARGES: (1) RESISTING ARREST OR : OTHER LAW : ENFORCEMENT : (2) OBEDIENCE TO TRAFFIC : CONTROL DEVICES : (3) OPERATION OF VEHICLE : WITHOUT OFFICIAL : CERTIFICATE OF : INSPECTION : (4) PROHIBITION ON : EXPENDITURES FOR : EMISSION INSPECTION : PROGRAM : (5) VIOLATIONS OF USE OF : CERTIFICATE OF : INSPECTION : ABU BAKARR NABIE : IN RE: DEFENDANT’S POST SENTENCE MOTIONS ORDER OF COURT th AND NOW, this 6 day of January, 2017, upon consideration ofDefendant’s Post GRANTED Sentence Motion, the Motion is hereby . The judgment of sentence entered VACATED November 7, 2016 is hereby and the Defendant’s right to request a bill of particulars, to move for discovery, and to file and serve an omnibus pretrial motion, if any, are hereby reinstated, with the respective time limits running from this date. BY THE COURT, __________________________ Jessica E. Brewbaker, J. 8