Commonwealth v. Mullen

267 A.3d 507

COMMONWEALTH of Pennsylvania, Appellee

v.Christopher S. MULLEN, Appellant

No. 571 MDA 2021

Superior Court of Pennsylvania.

Submitted October 14, 2021

Filed: December 8, 2021

Donald F. Martino, Williamsport, for appellant.

Ryan C. Gardner, District Attorney, Williamsport, for Commonwealth, appellee.

BEFORE: BOWES, J., OLSON, J., and KING, J.

OPINION BY KING, J.:

Appellant, Christopher S. Mullen, appeals from the order entered in the Lycoming County Court of Common Pleas, which denied his petition filed pursuant to the Post Conviction Relief Act ("PCRA").¹ We affirm.

The relevant facts and procedural history of this case are as follows. In 2017, Appellant was under the supervision of the Pennsylvania Board of Probation and Parole. While under supervision, Appellant absconded, which resulted in an arrest warrant for Appellant. On June 7, 2017, Parole Agent Michael Barvitskie received an anonymous tip regarding Appellant's whereabouts. Specifically, the caller said Appellant was residing at 408 Anthony Street in Williamsport, which was the residence of Appellant's former paramour.² The caller indicated there might be drugs and guns in the home, and that Appellant was present at that location the night before. Following some investigation, Agent Barvitskie learned that 408 Anthony Street was half a double home; Appellant's mother lived on one side of the home at 406 Anthony Street. Shortly after receiving the anonymous tip that morning, parole agents and other law enforcement surrounded the property.³ Agent Barvitskie observed Appellant through one of the windows of 408 Anthony Street and ordered him to come to the door. Appellant refused the commands and closed the blinds to the window. After agents knocked on the door, another male, Mr. Miller, answered the door. Mr. Miller initially denied that Appellant was present but eventually admitted that Appellant was inside. Upon entry, agents observed guns and drugs in the home. Agents ultimately located Appellant in the crawl space/attic of the property. A Special Response Team had to pull Appellant out through the ceiling on Appellant's mother's side of the home. After Appellant's apprehension, police secured a search warrant for the property.

The Commonwealth charged Appellant with various drug and gun related offenses. Attorney Joshua Bower entered his appearance as Appellant's counsel on July 12, 2017. Appellant filed a suppression motion on August 10, 2017. Appellant argued the anonymous tip was unreliable, and the agents lacked reasonable suspicion or probable cause to enter the residence based on the tip. Based on the law at the time, Appellant conceded: "Where authorities have a reasonable belief that the subject of an arrest warrant lives within a given premises, they can enter the home and arrest the suspect without a search warrant," citing this Court's decision in Commonwealth v. Romero , 138 A.3d 21, 25 (Pa.Super. 2016), rev'd , 646 Pa. 47, 183 A.3d 364 (2018). (Suppression Motion, filed 8/10/17, at ¶13). Appellant claimed the anonymous tip was insufficient on its own to provide a reasonable belief that Appellant was in the home, such that all evidence recovered should be suppressed. Because the search warrant was based on observations made during the allegedly illegal entry, Appellant argued that any evidence recovered must also be suppressed as fruit of the poisonous tree.

The court held a suppression hearing on October 12, 2017, at which Agent Barvitskie testified about the events leading up to Appellant's apprehension. Appellant argued that the anonymous tip was an insufficient basis for a reasonable belief that Appellant was inside the home. Appellant conceded that if the court found the agent's testimony credible regarding his observation of Appellant through the window, that would be enough to create a reasonable belief that Appellant was in the home. The next day, the court denied Appellant's suppression motion.

In December 2017, Attorney Bower left the Public Defender's Office. Attorney Matthew Welickovitch subsequently entered an appearance on Appellant's behalf. On January 22, 2019, Appellant filed a motion in limine seeking to suppress the evidence, citing the Supreme Court's decision in Romero , which was filed on April 26, 2018. Appellant claimed he just became aware of the Supreme Court's ruling in Romero , which Appellant said stood for the proposition that the agents were required to obtain a search warrant prior to entering 408 Anthony Street. (Motion in Limine , filed 1/22/19, at ¶¶16-17). The next day, the court denied Appellant's motion in limine as untimely and waived, stating defense counsel was informed of the Supreme Court's Romero decision on September 30, 2018.

On February 15, 2019, the court convicted Appellant of two counts of persons not to possess firearms, and one count each of possession of a controlled substance, and possession of drug paraphernalia. The court sentenced Appellant on April 2, 2019, to an aggregate term of 6 to 13 years’ imprisonment. On April 17, 2019, Appellant filed a post-sentence motion, which the court denied as untimely on June 12, 2019. Appellant did not file a direct appeal.

Following submission of a pro se PCRA petition, the court appointed Attorney Jeana Longo to represent Appellant. Counsel filed an amended PCRA petition on August 5, 2019, seeking reinstatement of Appellant's direct appeal rights nunc pro tunc . The PCRA court granted relief on October 3, 2019, and Appellant timely filed a nunc pro tunc appeal on October 14, 2019.

On appeal, Appellant argued the trial court erred in failing to suppress evidence obtained pursuant to a warrantless search of a third-party residence, in the absence of exigent circumstances. On May 22, 2020, this Court affirmed Appellant's judgment of sentence, deciding Appellant's issue was waived. See Commonwealth v. Mullen , 237 A.3d 479 (Pa.Super. 2020) (unpublished memorandum). Specifically, this Court said Appellant's complaint in his suppression motion and at the suppression hearing was that the agents lacked a sufficient belief that Appellant was inside the residence prior to their entry; whereas, on appeal, Appellant claimed the agents lacked a search warrant authorizing entry into the residence or exigent circumstances. See id.

On June 8, 2020, Appellant filed a pro se PCRA petition alleging ineffective assistance of trial and appellate counsel, where counsels’ errors waived Appellant's suppression issue. The court subsequently appointed PCRA counsel. The court held a PCRA hearing on February 5, 2021, at which Agent Barvitskie, Attorney Bower, and Attorney Longo testified. Following the submission of post-hearing briefs, the court denied PCRA relief on April 20, 2021.

Appellant timely filed a notice of appeal on April 29, 2021. On May 3, 2021, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely filed his Rule 1925(b) statement the next day.

Appellant raises one issue for our review:

Trial counsel and appellate counsel were ineffective for failing to correctly pursue suppression of the evidence obtained as a result of the warrantless entry of a third party residence and the [PCRA] court erred in failing to grant [Appellant's PCRA] petition requesting suppression of all items seized as a result of this warrantless entry as well as by failing to vacate Appellant's conviction and sentence.

(Appellant's Brief at 4).

Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the 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). This Court grants 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). We do not give the same deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190 (Pa.Super. 2012). "A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts." Commonwealth v. Johnson , 600 Pa. 329, 356, 966 A.2d 523, 539 (2009).

Appellant argues that all prior counsel failed to preserve his claim that the parole agents’ entry into a third-party residence was unlawful absent a search warrant or exigent circumstances. Appellant asserts counsels’ waiver of the issue establishes the arguable merit prong of the ineffectiveness test. Appellant claims the only dispute is whether he can establish prejudice. Appellant insists he can establish prejudice because his suppression claim would have been successful but for counsels’ errors in waiving it.

Appellant contends that under the Supreme Court's decision in Romero , a magistrate must determine that officers have probable cause to believe the residence in question is the residence of the person sought to be arrested prior to the officers’ entry into a home. Appellant maintains law enforcement lacked probable cause to believe Appellant resided at 408 Anthony Street. Although the agents had an arrest warrant for Appellant, Appellant avers the arrest warrant did not list 408 Anthony Street as Appellant's residence. Appellant emphasizes Agent Barvitskie's testimony that he did not obtain a search warrant based solely on the anonymous tip because the agent did not believe the tip, alone, was sufficient to establish probable cause to enter the residence.⁴

Appellant suggests exigent circumstances were not present in this case, distinguishing these facts from those where police are in hot pursuit of a fugitive. To the extent exigent circumstances ensued, Appellant insists those circumstances were created by the agents when they knocked on the door and demanded that Appellant exit the premises....