Commonwealth v. Burns

1

COMMONWEALTH OF PENNSYLVANIA v. CLINTON DESHAUN BURNS Appellant

No. 608 MDA 2022

Superior Court of Pennsylvania

August 25, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the PCRA Order Entered March 9, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s) CP-22-CR-0006181-2019

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM

OLSON J.

Appellant Clinton Burns, appeals from an order entered on March 9, 2022 in the Criminal Division of the Court of Common Pleas of Dauphin County that denied his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We previously summarized the historical and procedural facts of this case as follows.

This case arose out of an incident [wherein Appellant threatened his roommate, Kathleen Carabello (Carabello), with a firearm]. The two were [] living in a house located [along] North [Sixth] Street in Harrisburg[, Pennsylvania]. Carabello did not know [Appellant] before moving into the house a week before the incident.

On the night of October 15, 2018, Carabello's friend, Carly Twyman (Twyman), was staying at the house and planned to move in when she found a job. While the two were in the kitchen, [Appellant] returned to the house and told Carabello that he did not want her living in the house anymore. After [Appellant] left, Twyman reached into a Little Debbie snack box on top of the refrigerator and felt a handgun inside. Carabello told Twyman to leave the handgun in the box. The two then decided to go to bed early, with both going to separate bedrooms and locking their doors.

After falling asleep, Carabello woke up to the sound of [Appellant] yelling. According to [Carabello, Appellant] yelled, "I want everybody to get the f __ out of my house," and "I'ma shoot everybody in this f _ house." [Appellant] then started banging on the bedroom doors and tried to open the door to Carabello's room. Carabello unlocked her door and opened it, hoping to calm [Appellant down]. When she opened the door, Carabello saw [Appellant] facing her while holding up a handgun. [Appellant] repeated that he wanted everybody out. Carabello responded that she and Twyman would get a hotel room and move out the next day. After Carabello said this, [Appellant] said, "Okay, I want everybody out of my f _ house because I'll shoot everybody in this house."

Carabello went back to her room and texted Twyman about leaving and going to the police. Carabello then walked out of her bedroom and waited for Twyman. After Twyman came out of her room, the two walked out of the house. After leaving, Carabello and Twyman called a cab and went to the police station. There, the two spoke to Officer Jacobbi Harper (Officer Harper). Carabello told [Officer Harper] that [Appellant] threatened her with a gun. She also gave Officer Harper a key to the house.

Along with several other officers, Officer Harper went to [Appellant's] house. After opening the front door, Officer Harper called out for [Appellant] to come down to the door. Several minutes passed before [Appellant] came down from the kitchen area and was taken into custody. Once [Appellant] was detained, the officers entered [Appellant's home] and did a protective sweep of the house. Inside the kitchen, the officers found a Ruger 9mm handgun on the refrigerator. After photographing the handgun, the officers secured it and discovered that it was loaded. Inside the living room, meanwhile, the officers found a bag of marijuana.

At the time of the incident, [Appellant] was on federal probation and disqualified from possessing a firearm. Additionally, the police ran a check on the Ruger 9mm and found out that it was listed as stolen. As a result, [Appellant] was charged by criminal complaint with (1) persons not to possess firearms [(18 Pa.C.S.A. § 6105)]; (2) receiving stolen property (RSP) [(18 Pa.C.S.A. § 3925)]; (3) terroristic threats [(18 Pa.C.S.A. § 2706)]; (4) simple assault [(18 Pa.C.S.A. § 2701)]; (5) possession of a small amount of marijuana [(35 P.S. § 780-113(a)(31))]; and (6) possession of drug paraphernalia [(35 P.S. § 780-113(a)(32))].

After the Commonwealth dismissed the RSP charge, [Appellant] proceeded to a bifurcated jury trial on the remaining [offenses] in October 2020. At the end of trial, the jury found [Appellant] guilty of persons not to possess firearms and terroristic threats.^[FN] At sentencing on December 14, 2020, the trial court imposed an aggregate [term of eight] to 16 years' imprisonment comprised of 90 to 180 months for the firearms offense and a consecutive [six] to 12 months for terroristic threats.

[Appellant] filed a timely post-sentence motion for a new trial asserting that the jury's verdict was against the weight of the evidence. The trial court denied [Appellant's] motion without hearing. [Thereafter, Appellant] filed a timely notice of appeal[.]

^[FN] The jury found [Appellant] not guilty of simple assault and possession of drug paraphernalia. Based on the latter [determination], the trial court found [Appellant] not guilty of the summary marijuana charge.

Commonwealth v. Burns, 2021 WL 3629964, at * 1-2 (Pa. Super. 2021) (footnote in original).

On August 17, 2021, this Court affirmed Appellant's judgment of sentence.^[1] See id. Appellant did not petition for allowance of appeal before our Supreme Court.

Appellant filed a petition for collateral relief pursuant to the PCRA on September 2, 2021.^[2] On September 8, 2021, the court appointed counsel, who filed an amended petition on December 7, 2021. Thereafter, the PCRA court convened a hearing on February 25, 2022. Appellant's petition was denied by opinion and order issued on March 9, 2022. Appellant filed a timely notice of appeal on April 5, 2022 and timely, court-ordered Pa.R.A.P. 1925(b) concise statement on May 19, 2022. The court relied on its March 9, 2022 opinion as its explanation for denying relief.

Appellant asks us to review the following question on appeal.

Whether the PCRA court erred and trial counsel was prejudicially ineffective by failing to file a motion to suppress requiring a reversal of the PCRA court's decision?

Appellant's Brief at 3 (extraneous capitalization omitted).

Appellant alleges that trial counsel was ineffective in failing to file a motion to suppress a firearm and a small amount of marijuana recovered from his residence following his arrest. When analyzing such claims, we start with the presumption that counsel was effective. See Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011). A PCRA petitioner bears the burden of proving ineffectiveness. See Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009). To overcome the presumption of effectiveness, a PCRA petitioner must demonstrate that: "(1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance." Id.

"A claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any of these prongs." Id. To establish the absence of a reasonable basis for counsel's action or inaction, the petitioner must prove that "an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Spotz, 18 A.3d at 260, quoting Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006). Prejudice is proven if the petitioner "show[s] that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or inaction." Id.

To support his claim that trial counsel was ineffective, Appellant asserts that the PCRA court erred in finding that Carabello possessed apparent authority to consent to a search of the North Sixth Street residence. Without contesting Carabello's status as a lodger in the home, Appellant argues that she planned to leave the residence the day after the incident at issue and, therefore, she possessed no tangible interest that would permit her to consent to a search. See Appellant's Brief at 13. Appellant asserts that counsel had no reason to forgo suppression since there was no downside to pursuing the motion. See id. at 16. Lastly, Appellant maintains that he suffered prejudice due to counsel's inaction since there was a reasonable likelihood of a more favorable disposition of his charges if his suppression claims had succeeded.^[3] See id. at 19.

The following principles govern our assessment of whether Carabello gave valid consent to search the North Sixth Street residence.

The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. Fernandez v. California, 571 U.S. 292, 298 (2014); Commonwealth v. Strader, 931 A.2d 630, 634 (Pa. 2007). Warrantless entry by law enforcement into a home to look for a suspect is presumptively unreasonable and is constitutionally impermissible absent an applicable exception to the Fourth Amendment's general requirement that a warrant be obtained. Payton v. New York, 445 U.S. 573, 586-603 (1980); Strader, 931 A.2d at 634; Commonwealth v. Hawkins, 257 A.3d 1, 9 (Pa. Super. 2020); Commonwealth v. Berkheimer, 57 A.3d 171, 179 (Pa. Super. 2012) (en banc). "Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment." Payton, 445 U.S. at 587, quoting Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970).

Commonwealth v. Lehnerd, 273 A.3d 586, 589-591 (Pa. Super. 2022).

While warrantless searches unsupported by probable cause are generally deemed to be unreasonable, Pennsylvania courts...