Commonwealth v. Fudge

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered November 20, 2020 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0002236-2017

BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E. ^[*]

MEMORANDUM

STEVENS, P.J.E.

Appellant Dolphus Otis Fudge appeals from the Order entered in the Court of Common Pleas of Cumberland County on November 20, 2020, denying his first petition filed pursuant to the Post Conviction Relief Act (PCRA).^[1] We affirm.

This Court set forth the underlying facts and procedural history on direct appeal as follows:

In the evening of June 27, 2017, Pennsylvania State Trooper Dabrowski, observed a commercial tractor trailer driving unlawfully in the left lane of Interstate 81 in Cumberland County. Following this commercial vehicle, Trooper Dabrowski followed the vehicle and clocked it traveling at seventy-five miles per hour in a posted sixty-five miles-per-hour zone. He further observed the vehicle swerve in front of and nearly strike a pickup truck driving

2

in the middle lane. Trooper Dabrowski activated his emergency lights and initiated a traffic stop of the tractor trailer

As he approached the vehicle, which was occupied by Appellant and a female passenger, the trooper smelled burnt marijuana emanating from the cab. At Trooper Dabrowski's request he and Appellant conversed outside the cab

Appellant suggested that his passenger had been smoking marijuana. However, Trooper Dabrowski observed that Appellant's pupils were dilated and did not constrict when light hit them. In addition, he observed that Appellant continuously ground his teeth. Based on these observations Trooper Dabrowski believed that Appellant was under the influence of some kind of stimulant.

Appellant agreed to submit to field sobriety testing. As a result of this testing, Trooper Dabrowski noted that Appellant had a "sped-up body clock and eyelid tremors." Id. at 3. Trooper Dabrowski concluded that Appellant was operating the tractor trailer while under the influence of marijuana and/or some other stimulant and placed Appellant under arrest.

Trooper Dabrowski requested backup, including a K-9 unit, to assist in his warrantless search of the tractor trailer. Trooper Dabrowski and a canine handler subsequently searched the cab and found a loaded 9mm handgun, a separate magazine for the firearm, marijuana, methamphetamine, and various items of drug paraphernalia. Thus, in addition to a charge of DUI, Appellant incurred charges related to the drugs and firearm.

Thereafter, Appellant filed a Motion to Suppress seeking, inter alia, the suppression of physical evidence seized from the cab of the tractor trailer. See Omnibus Motion, 9/22/17, at 2-3 (unpaginated). According to Appellant, police lacked probable cause to conduct a warrantless search of the cab. Id. Following a hearing, the lower court denied Appellant's Motion to Suppress. Suppression Ct. Order, 1/25/18.

In March 2018, a jury trial commenced. At the close of testimony, the court instructed the jury on all offenses, including the DUI. Following deliberations, the jury convicted Appellant of Firearms Not to be Carried Without a License, Possession of a Controlled Substance (methamphetamine), and Possession of Drug Paraphernalia (glass pipes associated with smoking methamphetamine). N.T. Trial, 3/20/18, at 155-56. However, the jury informed the court that it was unable to reach a unanimous verdict on the DUI charge. Id. at 156-57. The trial court instructed the jury to leave its verdict sheet blank for that charge. Over Appellant's objection, the court then sua sponte entered a verdict

3

of guilty for DUI and the summary traffic violations. Id. at 154-55.

Following a presentence investigation, the court imposed a sentence as indicated above, in addition to various costs and fines. Appellant did not file a post-sentence motion but timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement. The trial court issued a responsive Opinion.

Commonwealth v. Fudge, 213 A.3d 321, 325-26 (Pa.Super. 2019), appeal denied, 222 A.3d 747 (Pa. 2019) (footnotes omitted). This Court vacated Appellant's judgment of sentence as to the DUI charge and affirmed his other convictions and the sentences imposed thereon. Id. at 33.

On July 20, 2020, Appellant filed a PCRA petition pro se. Counsel was appointed and filed an amended PCRA petition on November 9, 2020. Following a hearing, the PCRA court denied the PCRA petition in its Order entered on November 20, 2020.

Appellant filed a timely notice of appeal on December 22, 2020.^[2] The PCRA court did not order Appellant to file a concise statement of matters

4

complained of on appeal, and Appellant did not file a concise statement. Notwithstanding, the PCRA court filed its Opinion Pursuant to Pa.R.A.P. 1925(a) on June 22, 2021.

Appellant raises two issues for our review:

I. Whether the PCRA court erred in denying Appellant relief based upon Appellant's claim that the Commonwealth violated Appellant's Fourteenth Amendment due process rights when it knowingly presented or failed to correct false testimony in a criminal proceeding?

II. Whether the PCRA court erred in denying Appellant relief based upon Appellant's claim that trial counsel was ineffective by failing to adequately protect Appellant's due process rights?

Brief for Appellant at 5.

Appellant argues he was denied due process when the Commonwealth presented the testimony of Pennsylvania State Trooper Chester Dabrowski at trial because the trooper had testified falsely at the suppression hearing that a search of Appellant's tractor cab was performed by a canine unit. Appellant contends that trial counsel failed to protect his due process rights when she failed to object to the trooper's trial testimony, despite counsel's knowledge that Trooper Dabrowski previously had given testimony which dash cam video proved to be false.

5

This Court's standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the PCRA court's determination and whether its decision is free of legal error. Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). We grant great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). However, this Court does not give the same deference to the PCRA court's legal conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012).

Pennsylvania law presumes counsel has rendered effective assistance. Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When asserting a claim of ineffective assistance of counsel, a petitioner is required to demonstrate the underlying claim is of arguable merit, counsel had no reasonable strategic basis for his action or inaction, and but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). A petitioner's failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Williams, supra.

"The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit...." Commonwealth

6

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). "Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

Once this threshold is met we apply the 'reasonable basis' test to determine whether counsel's chosen course was designed to effectuate his client's interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel's assistance is deemed effective.

Pierce, at 524, 645 A.2d at 194-95 (internal citations omitted). As a general rule, counsel should not be held ineffective without first having an opportunity to address the accusation in some fashion. Commonwealth. v. Colavita, 606 Pa. 1,...