Commonwealth v. Guess

53 A.3d 895

2012 PA Super 196

COMMONWEALTH of Pennsylvania, Appellee

v.Larry GUESS, Appellant.

Superior Court of Pennsylvania.

Submitted Aug. 8, 2012.

Filed Sept. 13, 2012.

Reargument Denied Nov. 28, 2012.

Ethan O'Shea, Lansdale, for appellant.

Robert M. Falin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: SHOGAN, J., LAZARUS, J., and PLATT, J.^*

OPINION BY LAZARUS, J.

Larry Guess appeals from the order entered in the Court of Common Pleas of Montgomery County denying his petition pursuant to the Post Conviction Relief Act (“PCRA”).¹ We affirm.

The relevant facts are as follows. Brandon Krupka was a resident of apartment M–101 at Wissahickon Apartments, in Landsdale, Pennsylvania. On August 28, 2008 at approximately 12:22 p.m., Krupka heard a knock at his door, which was secured with a deadbolt. As Krupka walked toward the door, he heard the doorknob “jingle” and saw that pressure was being applied on the door as if someone was trying to pry the door open. Believing someone was trying to get into the apartment, Krupka ran back into his bedroom and grabbed a baseball bat. He then stood away from the door and watched as it shook for about 10 to 15 seconds.

When the shaking stopped, Krupka looked through the peephole and saw two black males in the hallway trying to enter the apartment next door in the same manner. Krupka observed one of the males wearing a white t-shirt, and the other wearing a black jacket.

Continuing to look through the peephole, Krupka saw the two males knocking on doors, turning the knobs and trying to “nudge” their way into other apartments. Krupka testified that the two males unsuccessfullyattempted to gain access to at least three other apartments. Krupka called 911 to report an attempted burglary after he saw the two men attempt to enter the third apartment.

Within 10 minutes, Lansdale police, including plain-clothes Detective Justin DiBonaventura, responded to the report of a burglary in progress at the apartment complex. The report described the suspects as two black males, one wearing a white t-shirt, and the other wearing a black jacket, and stated that they had last been seen in the area of “M” building.

Detective DiBonaventura positioned himself outside “M” building near his unmarked vehicle and a marked police cruiser while three uniformed officers went inside the building. Moments later, Detective DiBonaventura saw two black males, later identified as Guess and Kevin Jordan, coming from a grassy area between buildings “M” and “N.” Guess was wearing a white t-shirt and Jordan a black jacket. Guess and Jordan began to walk away “rapidly,” looking back frequently in the direction of Detective DiBonaventura and “M” building.

Detective DiBonaventura drove his vehicle across the parking lot toward Guess and Jordan. From inside his vehicle, Detective DiBonaventura identified himself as being with the Lansdale Police Department, and inquired of the two men whether they lived at the apartment. They responded that they did not live there, but were on the premises to visit a friend. When asked to provide the name of the friend, Guess and Jordan did not respond.

Detective DiBonaventura exited his vehicle and asked the men if he could speak with them. During this interaction, Guess dropped a credit card. Detective DiBonaventura retrieved the card, which bore the name Ramana Kumar. Upon seeing that the card did not belong to Guess, Detective DiBonaventura patted Guess down for officer safety. During the pat-down, Detective DiBonaventura recovered various pieces of jewelry from Guess' pockets ² as well as plastic hotel placards that were marked along the edges. Detective DiBonaventura placed Guess and Jordan under arrest.³

Police charged Guess with burglary (Apt.M–204),⁴ conspiracy to commit burglary,⁵ attempted burglary (Apt.M–101),⁶ possession of an instrument of crime,⁷ criminal trespass (Apt.M–204),⁸ identity theft,⁹ theft by unlawful taking ¹⁰ and receiving stolen property (credit card of Kumar).¹¹ Guess proceeded to a jury trial on November 4, 2009. On November 5, 2009, the jury found Guess guilty on all charges except identity theft, which the trial court dismissed at the close of the evidence.

The trial court sentenced Guess on January 15, 2010 to a mandatory term of 25 to 50 years' imprisonment pursuant to 42 Pa.C.S.A. § 9714(a)(2). ¹² Guess filed a timely post-trial motion which the court denied by order dated January 25, 2010. Guess filed a direct appeal on February 4, 2010; this Court affirmed the judgment of sentence on December 2, 2010. The Supreme Court of Pennsylvania denied Guess' petition for allowance of appeal.

On June 9, 2011, Guess filed a pro se PCRA petition. The PCRA court appointed Ethan O'Shea, Esquire, to serve as PCRA counsel. Guess, through counsel, filed an amended PCRA petition on December 28, 2011. After a hearing, the PCRA court denied the amended petition in an order dated January 9, 2012. Guess filed a timely notice of appeal and complied with the PCRA court's order to file a statement of errors complained of on appeal pursuant to Pa.R.A.P.1925(b). Guess raises three issues for our review:

1. Whether trial counsel was ineffective for failing to move to suppress evidence obtained through [Guess'] illegal search and seizure.

2. Whether trial counsel was ineffective for failing to object to the Commonwealth's introduction of jewelry found on [Guess] into evidence.

3. Whether trial counsel was ineffective for failing to object to the Commonwealth's introduction of [Guess'] pre-arrest silence at trial.

Brief of Appellant, 8/8/12, at 4.¹³

Our standard of review is well-settled:

In reviewing the propriety of [a] PCRA court's order, we are limited to determining whether the court's findings are supported by the record and whether the order in question is free of legal error. The PCRA court's findings will not be disturbed if there is any support for the findings in the certified record.

Commonwealth v. Grant, 992 A.2d 152, 156 (Pa.Super.2010) (internal citations and quotations omitted).

To be eligible for relief under the PCRA for ineffective assistance of counsel, the petitioner must plead and prove that the ineffective assistance “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). To meet this standard, “[t]he petitioner must demonstrate: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) 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. Anderson, 995 A.2d 1184, 1191–92 (Pa.Super.2010) (internal quotations omitted).

Guess first argues that trial counsel was ineffective for failing to argue that the evidence should be suppressed because the police unlawfully detained Guess prior to his arrest. Specifically, Guest avers that his interaction with Detective DiBonaventura escalated to an “investigative detention” that was not supported by reasonable suspicion of criminal activity. We disagree.

The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures. Commonwealth v. Pratt, 930 A.2d 561, 563 (Pa.Super.2007).

Fourth Amendment jurisprudence has led to the development of three categories of interactions between citizens and police. The first of these is a “mere encounter” (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second, an “investigative detention” must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or “custodial detention” must be supported by probable cause.

Commonwealth v. Hudson, 995 A.2d 1253, 1256–57 (Pa.Super.2010).

“A mere encounter can be any formal or informal interaction between an officer and a citizen, but will normally be an inquiry by the officer of a citizen.” Commonwealth v. Coleman, 19 A.3d 1111, 1115 (Pa.Super.2011). “In determining whether an interaction should be considered a mere encounter or an investigative detention, the focus of our inquiry is on whether a ‘seizure’ of the person has occurred.” Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa.Super.2010) (citation omitted).

Our Supreme Court has adopted an objective test for determining whether a police officer has restrained the liberty of a citizen such that a seizure occurs. The pivotal inquiry in making this determination is whether a reasonable [person] innocent of any crime, would have thought he [or she] was being restrained had he [or she] been in the defendant's shoes. A Court must examine all surrounding circumstances evidencing a show of authority or exercise of force, including the demeanor of the police officer, the manner of expression used by the officer in addressing the citizen, and the content of the interrogatories or statements. If a reasonable person would not feel free to terminate the encounter with police and leave the scene, then a seizure of that person has occurred.

Commonwealth v. Key, 789 A.2d 282, 288–89 (Pa.Super.2001) (citations and quotations omitted).

Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might by compelled.

Commonwealth v. McClease, 750 A.2d 320, 324–25 (Pa.Super.2000) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, ...