Commonwealth v. McLendon

1

COMMONWEALTH OF PENNSYLVANIA v. DASHAWN MCLENDON Appellant

No. 1689 MDA 2021

No. J-S15042-23

Superior Court of Pennsylvania

January 18, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered December 20, 2021 In the Court of Common Pleas of Luzerne County Criminal Division at No(s) CP-40-CR-0001475-2016

BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.

MEMORANDUM

SULLIVAN, J.

Dashwan McLendon ("McLendon") appeals pro se from the order denying his petition for relief under the Post-Conviction Relief Act ("PCRA"), relating to alleged ineffectiveness relating to his convictions by separate juries for violations of the Uniform Firearms Act.^[1] We affirm.

This Court previously summarized the relevant facts on direct appeal:

[McLendon's] convictions stem from events occurring on the night of December 4, 2015, in Wilkes-Barre, Pennsylvania. The victim, Ian Nieves ["Mr. Nieves"], testified that he saw [McLendon] and [McLendon's] brother, Ibn McClain ("Co-defendant"), whom he knew from the area. They approached his car and requested a ride. [McLendon] entered the vehicle and sat in the front passenger seat, while Co-defendant sat in the rear passenger seat. When Mr. Nieves stopped the car at their request, Co-defendant exited the vehicle and shot Mr. Nieves in the left shoulder. When Mr. Nieves attempted to drive away with [McLendon] still in the car, [McLendon] shot Mr. Nieves in the leg. A struggle over a firearm ensued, and the weapon fired and hit the car's windshield. The car eventually crashed outside the home of someone Mr. Nieves knew, and Co-defendant came running and shooting toward the car. [McLendon] and Co-defendant fled. The police arrived at the scene, and ultimately determined that the firearm that was used to shoot Mr. Nieves in the leg was a Glock 37 .45 GAP (hereafter "Glock").

[McLendon] testified to a different story. According to [McLendon], Mr. Nieves picked up [McLendon] after [McLendon] called to purchase cannabis. After [McLendon] paid for the drugs, Mr. Nieves indicated that he had to go retrieve them. [McLendon] demanded his money back, and Mr. Nieves refused. During the confrontation, Mr. Nieves brandished the Glock, the two struggled over it, and it fired twice. The vehicle crashed, [McLendon] left the vehicle, but went back to check on Mr. Nieves. [McLendon] took the Glock but left his money behind. [McLendon] then fled to a residence of a friend to whom he gave the Glock.¹

¹ On cross-examination, [McLendon] added Co-defendant into this story and acknowledged that Co-defendant had a revolver, although he claimed he had not known earlier that Co-defendant was armed.

After the encounter, [McLendon] and Co-defendant fled to Allentown, where they were found in a hotel room a few days after the incident as a result of cell phone pinging technology. After requesting that [McLendon] and the other hotel occupants leave the room, the police obtained consent to a search of the hotel room from the third party in whose name it was registered. The Glock was retrieved from the room, along with ammunition for the weapon. [McLendon] and Co-defendant were arrested.

See Commonwealth v. McLendon, 2019 WL 4052448 (Pa. Super. 2019), unpublished memorandum at *1-2.

McLendon filed a successful motion to sever his charge of possession of a firearm by a prohibited person. As a result, he had two separate jury trials on the charges against him: a first trial for attempted murder, aggravated assault, and carrying a firearm without a license,^[2] and a second trial two months later for possession of a firearm by a prohibited person. Prior to the first trial, McLendon moved to suppress the evidence found in the hotel room on the basis that the police failed to obtain valid consent to search. See McLendon's Memorandum in Support of Pre-Trial Motions, 8/10/16, at 27-29. At the first trial, trial counsel, Robert C. Trichilo, Esquire ("trial counsel"), did not request a justification defense. At the second trial, trial counsel requested, and the trial court issued, a justification instruction; the jury at the second trial convicted McLendon of possession of a firearm by a prohibited person. In November 2017, the court imposed an aggregate sentence of seventy-two to one-hundred-and-ninety-two months of imprisonment for McLendon's crimes. In August 2019, this Court affirmed McLendon's judgment of sentence. See McLendon, 2019 WL 4052448, unpublished memorandum at *7. McLendon did not seek allowance of appeal in our Supreme Court.

On July 27, 2020, McLendon filed a timely pro se PCRA petition, and on August 31, 2020, a substantially similar PCRA petition relating to his convictions at the first and second trials. The PCRA court appointed counsel for McLendon ("PCRA counsel"). In October 2020, PCRA counsel filed a supplemental PCRA petition asserting that trial counsel was ineffective for failing to request a "necessity" [sic] jury instruction^[3] at McLendon's first trial, and for failing to seek suppression of evidence found in the hotel room where the police arrested McLendon.

The PCRA court conducted an evidentiary hearing on McLendon's petition at which Detective Shane Yelland testified that the hotel room in which the police arrested McLendon was registered to Abdul Khiari ("Khiari"), Khairi consented to the search of the room, and that he had testified at the motion to suppress. See N.T., 4/6/21, at 4-10, 12-15. Trial counsel testified that he filed a motion to suppress the evidence recovered from the hotel room, including a challenge to the voluntariness of the consent to search. See id. at 30-31.

McLendon testified trial counsel said after the first trial that he had forgotten to request a justification/"necessity" instruction. See id. at 17-19. Trial counsel testified at the evidentiary hearing that based on the version of events McLendon gave him - McLendon wrestled the gun from Nieves and walked away from the scene with the gun and sold it to someone else that day - a "necessity" instruction would not have been plausible because McLendon retained the gun for a substantial period of time after any emergency permitting his possessing and use of the gun. Trial counsel also testified there was evidence McLendon bought ammunition five days after the shooting, and police found four guns in the hotel room that day as well, which wholly undermined a justification/"necessity" defense. See id. at 34-35.^[4]Trial counsel further testified that given the seriousness of the charges McLendon faced, and the lack of a valid defense to the charge of possessing firearms without a license, it made sense to focus on the more serious charges. Trial counsel also testified he feared losing credibility with the jury by arguing an implausible justification/"necessity" defense. See id. at 36-37.

At the conclusion of the hearing, the PCRA court held the case under advisement. In December 2021, the PCRA court denied the petition. McLendon timely file a notice of appeal. After PCRA counsel withdrew from representation and was replaced by two attorneys in succession, McLendon requested the right to proceed pro se and after a Grazier hearing^[5] the court granted him permission to do so. McLendon and the PCRA court complied with Pa.R.A.P. 1925.

On appeal, McLendon raises the following issues for our review:

I. Was trial counsel ineffective because he failed to ask the [trial j]udge to give the necessity defense [instruction] to the jury at [McLendon's] first trial?

II. Was trial counsel ineffective because he failed to file a motion to suppress evidence that was found during a search of a hotel room in which [McLendon] was staying?

See McLendon's Brief at 9 (unnecessary capitalization eliminated).

Both of McLendon's claims implicate the effective assistance of trial counsel. Our standard and scope of review of a PCRA court's dismissal of a PCRA petition are well-settled:

Appellate review of a PCRA court's dismissal of a PCRA petition is limited to the examination of whether the PCRA court's determination is supported by the record and free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. In contrast, we review the PCRA court's legal conclusions de novo.

Commonwealth v. Maxwell, 232 A.3d 739, 744 (Pa. Super. 2020) (en banc) (internal citations omitted). Further, a "PCRA court's credibility findings are to be accorded great deference, and where supported by the record, such determinations are binding on a reviewing court." Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016) (internal citations omitted).

Generally, to prevail on a claim of ineffective assistance of counsel, a PCRA petitioner must demonstrate:

(1) that the underlying claim has arguable merit; and (2) that no reasonable basis existed for counsel's actions or failure to act; and (3) that the petitioner suffered prejudice as a result of counsel's error. To prove that counsel's chosen strategy lacked a reasonable basis, a petitioner must prove that an alternative not chosen offered a potential for success substantially greater than the course actually pursued. Regarding the prejudice prong, a petitioner must demonstrate that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or inaction. Counsel is presumed to be effective; accordingly, to succeed on a claim of ineffectiveness[,] the petitioner must advance sufficient evidence to overcome this presumption.

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016)...