Burgess v. Mason

BRADLEY BURGESS, Petitioner v. BERNADETTE MASON, Respondent

Civil No. 3:19-cv-1731

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

September 4, 2020

(Judge Mariani)

MEMORANDUM

I. Background

Petitioner Bradley Burgess ("Burgess") files the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief from the Judgment of Sentence entered on January 22, 2016, in Court of Common Pleas of Luzerne County criminal case CP-40-CR-0003452-2014, following convictions for twenty-seven counts of drug charges and related offenses. (Doc. 1).

For the reasons set forth below, the petition for writ of habeas corpus, which is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996 ("AEDPA"), will be denied.

II. State Court Factual and Procedural Background

The following relevant facts and procedural history set forth below are extracted from the Superior Court of Pennsylvania's January 25, 2017 decision affirming Petitioner's conviction:

On November 19, 2014, the Luzerne County District Attorney filed a Criminal Information charging [Appellant] with possession of heroin with intent to deliver and DUI stemming from an August 20, 2014 traffic stop of a vehicle driven by [Appellant]. [Appellant] filed a counseled pre-trial motion to suppress statements made by [Appellant] and physical evidence seized.

A suppression hearing was held on July 18, 2015. The Commonwealth presented the testimony of Wilkes-Barre Police Officer David Balchun and introduced [Appellant's] driving record and two lab reports into evidence. Officer Balchun testified that on August 20. 2014, he observed a vehicle make a right hand turn from North Empire Court Street onto Coal Street without using its turn signal. Additionally, Officer Balchun testified that he smelled a strong odor of marijuana smoke coming from the vehicle. Officer Balchun initiated a traffic stop of the vehicle, and when he approached the driver's side door the odor of marijuana got stronger. Officer Balchun observed [Appellant] in the driver's seat, and asked him for his license and registration information, which [Appellant] provided. Officer Balchun then asked [Appellant] if he had any marijuana in the vehicle because he could smell a strong odor of marijuana coming from it. Officer Balchun testified that [Appellant] responded that he had a little marijuana in his vehicle and then handed the officer a cigar wrapper with a small baggie of marijuana inside it. After being handed the marijuana, Officer Balchun advised [Appellant] that he was going to search [Appellant's] vehicle for any other narcotics. Before the search could be conducted, however, [Appellant] fled in the vehicle. Officer Balchun pursued [Appellant] with his lights and siren activated, but [Appellant] refused to stop and instead ran several stop signs at a high rate of speed, travelled the wrong way down a one way street, and nearly hit a pedestrian. While pursuing [Appellant], Officer Balchun observed him throw several objects out the vehicle's window. [Appellant] was eventually apprehended and placed into custody after he pulled his vehicle into a driveway and jumped out while the vehicle was still rolling. When Officer Balchun returned to the area where he had observed [Appellant] throw the items out of the vehicle the officer found bundles of packaged heroin, totaling 250 packets. Based on [Appellant's] careless and reckless driving, and a statement he made after being taken into custody that the had smoked marijuana prior to being pulled over by Officer Balchun, [Appellant] was taken for blood work. He tested positive for marijuana. Officer Balchun also testified that as a result of his check on [Appellant's] driver's license, he learned that the license was suspended. At the conclusion of the suppression hearing, the Court denied [Appellant's] suppression motion.

An Amended Information was subsequently filed setting forth twenty-nine (29) counts against [Appellant] relating to the events of August 20, 2014. Following a September 16, 2015 jury trial, [Appellant] was found guilty of twenty-seven (27) of the twenty-nine (29) counts. A Pre-Sentence Investigation (PSI) was ordered to be completed by the Luzerne County Adult Probation and Parole Department, and sentencing was scheduled for November 23, 2015. [Appellant] failed to appear on that date, however, and sentencing was continued until January 22, 2016.

Following review and consideration of the recommendations of counsel and review of the PSI, [the trial court] sentenced [Appellant] to an aggregate term of incarceration of seven and one half (7½ ) to fifteen (15) years in a state correctional institution. (Trial Ct. Op., filed 6/30/16, at 1-3).

Appellant, still represented by the Public Defender's Officer, filed a Motion for Modification of Sentence on January 28, 2016. Before the trial court ruled on the Motion, Appellant retained private counsel, who filed a Notice of Appeal with this Court on February 22, 2016. On March 1, 2016, the trial court denied Appellant's Post-Sentence Motion.

Appellant raises five issues on appeal.

1. Whether the trial court erred in ruling that there was probable cause to initiate a lawful traffic stop of the vehicle that was being driven by the Appellant?

2. Whether the trial court erred in ruling that the statements made by the Appellant during the traffic stop were admissible at trial, given that they were the result of a custodial interrogation in which the Appellant was not read his Miranda rights?

3. Whether the trial court erred in ruling that the items of purported marijuana and heroin that were seized from the Appellant and taken into evidence were admissible at trial, given that they were fruits of inadmissible statements given by the Appellant to Officer Balchun?

4. Whether the Appellant was provided with effective assistance of counsel throughout the duration of his case?

5. Whether the sentence imposed by the Honorable Judge David W. Lupas of the Luzerne County Court of Common Pleas on January 22, 2016, was too excessive, given that a lesser sentence would not deprecate the seriousness of the offenses and it would still adequately punish the Appellant.

(Doc. 9-3 at 73, Commonwealth v. Burgess, 366 MDA 2016 at 1-3 (Pa. Super. Jan. 25, 2017) (unpublished memorandum). On January 25, 2017, the Superior Court affirmed Appellant's judgment of sentence. Id.

On May 15, 2017, Burgess filed a timely petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.SA §§ 9541-9546. (Doc. 9-4 at 2).

The remainder of procedural history is extracted from the Superior Court of Pennsylvania's April 9, 2019 decision affirming the PCRA Court's order denying Burgess' PCRA petition:

[Appellant] appeals from the order denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.SA §§ 9541-9546. In this appeal, Appellant's court-appointed counsel (PCRA Counsel) filed a petition to withdraw as counsel and a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Because we conclude that PCRA Counsel fulfilled the procedural requirements of Turner/Finley, and this appeal is without merit, we affirm the PCRA court's order denying Appellant's PCRA petition and grant PCRA Counsel's petition to withdraw.

*****

The PCRA Court summarized the subsequent procedural history pertinent to this appeal as follows:

[Appellant] filed a pro se [PCRA petition] on May 15, 2017, and we entered an Order on March 29, 2018, which inter alia, appointed counsel to represent [Appellant] relative to the instant matter and directed said counsel to determine the necessity for the filing of any supplement to [Appellant]'s pro se [petition].

On May 29, 2018, a hearing was held on [Appellant's petition], when testimony and evidence was presented by [Appellant] for the Court'sconsideration. We denied [Appellant's PCRA petition] on the record at the conclusion of the PCRA hearing at which time he was also advised of his appellate rights. ([N.T., 5/29/18, at 18-19).]

[Appellant] filed a timely Notice of Appeal on June 11, 2018 and, following the appointment of appellate counsel, filed a Statement of Matters Complained of on Appeal on July 5, 2018. The Commonwealth filed a response thereto on July 17, 2018.

*****

In Appellant's first issue, as raised in the Turner/Finley no-merit letter, he asserts that the PCRA court erred in dismissing his claim that trial counsel was ineffective for failing to object to hearsay testimony from Officer Balchun regarding "what a victim told him in furtherance of his investigation." Turner/Finley Letter at 5.

*****

In Appellant's second issue, as raised in the Turner/Finley no-merit letter, Appellant argues that trial counsel was ineffective in his cross-examination of Officer Balchun. Appellant asserts that trial counsel was ineffective because he did not question Officer Balchun about the inconsistent statements he made regarding the route he used in pursuit of Appellant.

*****

Finally, in his pro se response to Counsel's Turner/Finley Letter, Appellant argues that his constitutional rights were violated because "the Commonwealth failed to provide the defendant with formal and specific notice for the charges: (1) fleeing and eluding, (2) possession of a small amount of marijuana, (3) recklessly endangering another person, (4) flight to avoid apprehension, and (5) resisting arrest and summary offenses." Response to Turner/Finley Letter at 1. Appellant maintains that he is entitled to a new trial.

(Doc. 9-4 at 73, Commonwealth v. Burgess, 982 MDA 2018 at 1-4 (Pa. Super. April 9, 2019) (unpublished memorandum). The Pennsylvania Superior Court agreed with the PCRA Court and PCRA Counsel that there were no meritorious issues that Appellant could pursueon collateral review, and affirmed the order dismissing the PCRA petition. Id.

Thereafter, on ...