Com. v. Puckett, D. (memorandum)
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J-S73023-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DAVID A. PUCKETT Appellant No. 491 WDA 2012 Appeal from the PCRA Order March 5, 2012 In the Court of Common Pleas of Indiana County Criminal Division at No(s): CP-32-CR-0001045-2007 BEFORE: SHOGAN, J., OTT, J., and COLVILLE, J.* MEMORANDUM BY OTT, J. FILED MAY 21, 2013 David A. Puckett appeals from the order dated March 5, 2012 of the Court of Common Pleas of Indiana County denying his timely filed petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. He argues the PCRA court erred in determining trial counsel was not ineffective for: 1) requesting continuances rather than filing a timely Rule 600 motion; 2) failing to examine witnesses at trial as to the true ownership of the shed from which stolen items were seized; 3) failing to cross examine Commonwealth s witness James Day as to personal bias against Puckett; 4) failing to question Puckett s wife as an alibi witness; 5) failing to question defense witness Raymond Erwin about his role as the perpetrator of the ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S73023-12 burglary; 6) coercing Puckett not to testify at trial; and 7) repeatedly disrespecting Puckett during the trial and in front of the jury. Based on the following, we affirm. We adopt the PCRA court s recitation of the procedural and factual history for this appeal: [O]n the morning of August 7, 2007, the Pennsylvania State Police investigated a burglary at the residence of Janis Barner. The investigation included interviewing James Day (hereinafter referred to as Day ) who stated that he observed a small skinny man with a ruddy complexion in a silver car at Barner s residence. Day also stated that he observed various items in the silver vehicle. Later that day, Day identified [Puckett] in a photographic lineup. At approximately 6:30 p.m. the police arrived at [Puckett s] residence at which time [Puckett s] wife consented to a search of the residence, which resulted in the arrest of [Puckett], who was found hiding in a closet. The next day the Troopers returned to the home of [Puckett] and again spoke to [Puckett s] wife who stated that she and her husband owned a nearby shed and again consented to a search of the shed. The Trooper found various items in the shed but returned to the police barracks to confer with the victim as to exactly what items were taken from her home. The officer later returned to the home and found [Puckett], who had posted bail, standing outside the shed and, without reading him his Miranda Rights, inquired as to certain items that were located in the shed, which [Puckett] gave to the officer. After a preliminary hearing on October 3, 2007, [Puckett s] charges were bound over to this Court. On January 18, 2008, Defense Counsel filed a Pretrial Motion for Discovery and on January 22, 2008, the Court entered an Order requiring that discovery be provided to [Puckett] by February 1, 2008, and for defense counsel to file Pretrial Motions on or before February 29, 2008. On January 28, 2008, [Puckett] sought his first continuance apparently because mandatory discovery was not finalized. On February 29, 2008, [Puckett] again filed a Motion for Continuance rather than go to trial. A -2- J-S73023-12 month later on March 27, 2008, [Puckett] filed his first suppression motion. Afterwards, [Puckett] sought three consecutive continuances on March 28, April 23 and May 23 of 2008. Defense did not file a motion to compel discovery pursuant to Pa.R.Crim.P. 573(E) but instead filed a Motion For a Bill of Particulars on May 30, 2008. On July 11, 2008 the Commonwealth requested its first continuance, seeking to delay a scheduled suppression hearing. Three days later, [Puckett] filed a Motion for Continuance to push back the trial date. [Puckett] had four more continuance[s] granted before November 21, 2008, on which date the Court entered a continuance because the Commonwealth had not filed an adequate bill of particulars. The Commonwealth filed and received its second continuance on November 26, 2008, and submitted a bill of particulars on December 10, 2008, which was again inadequate prompting the Court to enter a continuance order on December 19, 2008. On January 8, 2009 an appropriate bill of particulars was submitted. [Puckett] again continued the matter on January 22, 2009. On March 12, 2009, [Puckett] asked the Court to dismiss the case due to the Commonwealth s delay in preparing an appropriate bill of particulars, but again sought a continuance just eight days later. On May 15, 2009 [Puckett] filed a second suppression motion based on the information turned over to him by the Commonwealth, the Motion was decided on July 9, 2009. [Puckett] sought two more continuances before filing a Rule 600 motion on October 14, 2009. In total [Puckett] filed sixteen continuances. On October 22, 2009, arguments were made by the Commonwealth and defense counsel relative to [Puckett s] Motion Pursuant to Pa.R.Crim.P. 600, the Court denied [Puckett s] Motion. [Puckett] then proceeded to jury trial on October 26 [sic], 2009. During the trial the Commonwealth called four witnesses, including Janis Barner, Day, and Troopers Bono and Snyder. Defense counsel called two witnesses, [Puckett s] wife and a Raymond Erwin, [Puckett] did not testify at trial. At the close of the trial [Puckett] was found guilty on charges of Burglary, Theft by Unlawful Taking and Receiving Stolen Property. Following trial [Puckett] appealed to the Superior Court arguing the Commonwealth failed to sustain its burden of proof, that the trial court erred by denying [Puckett s] Pretrial Motion to Dismiss Pursuant to Rule 600, that the trial -3- J-S73023-12 court abused its discretion by not suppressing any and all items found in the shed on August 8, 2007, and that the trial court should have suppressed any and all items seized from [Puckett s] shed after Trooper Bono failed to read [Puckett] his Miranda rights on August 8, 2007. The Superior Court affirmed [Puckett s] conviction.[1] Trial Court Opinion, 3/5/2012 at 1-4. This Court s standard of review regarding an order dismissing a petition under the PCRA is whether the determination of the PCRA court is supported by evidence of record and is free of legal error. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010). The PCRA court s findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011). In all of his claims, Puckett argues that his trial counsel was ineffective. To succeed on an ineffectiveness claim, Puckett must demonstrate by the preponderance of the evidence that (1) [the] underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel s ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). ____________________________________________ [1] Commonwealth v. Puckett, 165 WDA 2010. -4- Counsel is J-S73023-12 presumed to be effective and the burden is on the appellant to prove otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011). In his first issue, Puckett argues by requesting multiple continuances because the Commonwealth was not obeying discovery orders, his defense counsel precluded a successful Rule 600 challenge.1 On October 12, 2007 Puckett executed his waiver of arraignment. Pennsylvania Rule of Criminal Procedure 572 directs that a request for a bill of particulars be made within seven days of the arraignment. Puckett did not timely request a bill of particulars pursuant to Rule 572. Instead, between August 7, 2007 and August 8, 2008 the defense filed seven continuances.2 Following his March 7, 2008 Omnibus Pretrial Motion, Puckett filed on May 30, 2008 a petition for leave to file a request for a bill of ____________________________________________ 1 The period for calculating Rule 600 began on August 7, 2007 when the complaint was filed. 2 Of those, the first two requested continuances of the call of the trial list to permit defense counsel to file pretrial motions. See Motions for Continuance, 1/28/2008 and 2/29/2008. Thereafter, on March 3, 2008, counsel filed a petition requesting an extension of time to file the pretrial motion due to health issues. This was granted and the pretrial motion was filed in a timely manner on March 27, 2008. The next two requests, again, were made to continue the call of the trial list, this time because the pretrial motion hearing was pending. See Motions for Continuance, 4/3/2008 and 4/23/2008. On May 23, 2008, the defense requested a continuance of the pretrial hearing to permit Puckett to file an amended pretrial motion. Simultaneously, a continuance was filed requesting a continuance of the June 5, 2008 call of the trial list because of the pending amended motion. The seventh continuance, filed on July 14, 2008, was moot as the trial court, on July 11, 2008, had granted the Commonwealth s motion to continue the August 7, 2008 call of the list as well as the July 17, 2008 pretrial hearing. -5- J-S73023-12 particulars. In the petition, Puckett stated the bill of particulars was necessary to provide more specific notice to the defendant of the charged criminal conduct that is provided in the criminal complaint or criminal information. Petition for Leave to File Request For Bill of Particulars, 5/30/2008 at 2. The petition was granted on June 4, 2008. Thereafter, multiple requests for continuances were made by Puckett. On appeal, Puckett has failed to show that trial counsel was not acting reasonably in requesting the information to ensure the pretrial motions were adequately prepared. Furthermore, we note the trial court found Puckett did not object to any of the continuance requests. Because Puckett cannot show prejudice, the ineffectiveness claim fails. In his second issue, Puckett claims trial counsel was ineffective for failing to file a motion to suppress evidence relative to the ownership of the sheds due to lack of consent to search by the owner, wife s father. The Fourth Amendment's prohibition against warrantless entry of a person's home does not apply to situations in which voluntary consent has been obtained, either from an individual whose property is searched, or from a third party who possesses common authority over premises. See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). Common authority rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the inhabitants has the right to permit the inspection in his own right and -6- J-S73023-12 that the others have assumed the risk that one of their number might permit the common area to be searched. 1055, 1058 (Pa. Super. 1983). Commonwealth v. Jordan, 456 A.2d The primary justification of third party consent is that there is a reduced expectation of privacy in premises or things shared with another, and when one leaves something with another person; one assumes the risk that it may find its way to the police. See id. Here, the trial court has thoroughly addressed Puckett s claims and found them to be without merit. The trial court correctly concluded because Puckett s wife had apparent authority to consent to the searches of the home and the sheds, the searches were constitutional. Trial Court Opinion, 3/5/212 at 5. Accordingly, we adopt its reasoning for the purposes of this appeal. See id. at 5. In his next three issues, Puckett claims trial counsel was ineffective for failing to: cross-examine Commonwealth s witness James Day relative to a personal grudge he had against Puckett; use Puckett s wife as an alibi witness; and cross-examine defense witness Raymond Erwin to prove he was the perpetrator. 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 v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). -7- J-S73023-12 Again, we conclude the trial court has thoroughly addressed each of these claims and correctly concluded that trial counsel was not ineffective. Trial Court Opinion, 3/5/2012, at 6-7. Accordingly, we adopt its reasoning for the purposes of this appeal. See id. at 6-7. In his sixth issue, Puckett claims trial counsel coerced him not to testify at trial on his own behalf. The decision to testify on one's own behalf: is ultimately to be made by the accused after full consultation with counsel. In order to support a claim that counsel was ineffective for failing to call the appellant to the stand, [the appellant] must demonstrate either that (1) counsel interfered with his client's freedom to testify, or (2) counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision by the client not to testify in his own behalf. Counsel is not ineffective where counsel's decision to not call the defendant was reasonable. Commonwealth v. O'Bidos, 849 A.2d 243, 250 (Pa. Super. 2004)(internal citations omitted). Prior to the colloquy, trial counsel stated, I advised [Puckett] that he could or could not testify. I told him in my opinion that he should not testify. N.T., 10/28/2009 at 62. Thereafter, Puckett was colloquied by the court as follows: THE COURT: Mr. Puckett, Mr. McKee [trial counsel] has advised this Court on your behalf that you have elected not to testify. My questions to you are straightforward. Have you had what you believe is an adequate opportunity to speak with Mr. McKee about this matter? -8- J-S73023-12 THE DEFENDANT: Yes. THE COURT: Has Mr. McKee talked with you about your right to testify if you choose to do so? THE DEFENDANT: Yes. THE COURT: Has Mr. McKee told you that you do have an absolute right to testify if you choose? THE DEFENDANT: Yes. THE COURT: Has Mr. McKee also told you that you have the right not to testify if you elect not to, that the jury is being instructed that they cannot hold this against you? THE DEFENDANT: Yes, sir. THE COURT: You have elected not to testify. Is this a decision that you have made of your own free choice? THE DEFENDANT: Yes. THE COURT: Do you believe that you have had an adequate opportunity to discuss this matter with counsel? THE DEFENDANT: Yes, sir. THE COURT: Has counsel answered any questions you may have had about your right to testify, your right not to testify and the consequences of the exercise of your right either to or to not testify? THE DEFENDANT: Yes. N.T., 10/28/2009 at 63-64. We are convinced that Puckett's waiver was voluntary and informed and based upon a reasonable strategy. Therefore, trial counsel was not ineffective for failing to call Puckett as a witness in his own defense. -9- J-S73023-12 Finally, Puckett claims trial counsel repeatedly disrespected him during the trial and in front of the jury. Puckett testified counsel wouldn t recognize me. He kept turning his back on me or wadding up papers and throwing them at me. He wouldn t have anything to do with me at the trial. N.T., 1/30/2012 at 12. He later stated he felt disrespected by trial counsel because, [h]e was just treating me like I was guilty right in front of the jury, and the jurors seen every bit of it. They were looking at me and they were giving me weird looks because of the way he was treating me. Id. at 14. On cross-examination Puckett testified, I d write something on a piece of paper and [counsel would] push it back to me and turn his back to me. Id. at 22. We agree with the PCRA court s conclusion that Puckett s imagined slights falls far short of entitling [Puckett] to relief. PCRA Court Opinion, 3/5/2013 at 7. This issue fails. Order affirmed. The parties shall attach a copy of the PCRA court s opinion in the event of further proceedings. Judgment Entered. Deputy Prothonotary Date: 5/21/2013 - 10 -
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