Com. v. Milinski, B. (memorandum)
Annotate this Case
Download PDF
J-S40034-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. BILL MARTIN MILINSKI, Appellant : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : No. 3838 EDA 2016 : : Appeal from the Order November 17,.2016 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0001044-2013 and CP-45-CR-0002096-2013 BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E. * MEMORANDUM BY DUBOW, J.: FILED JULY 19, 2017 Appellant Bill Martin Milinski appeals from the November 17, 2016 Order denying his first Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, and challenges the effectiveness of trial counsel. After review of the record and the Briefs of the parties, we adopt the Opinion filed by the PCRA Court on November 17, 2016, as our own, and affirm. On April 10, 2013, Appellant was at Kathy Hockenjos’s apartment in Smithfield Township when the next-door neighbor, Shannon Henley, heard banging on the wall coming from the apartment. Henley sent a text message to Hockenjos asking her to stop the noise. * Former Justice specially assigned to the Superior Court. 1 The banging then J-S40034-17 became louder, and Appellant, who was drunk at the time, became belligerent, stating “just come outside and fight.” N.T. Trial, 3/11/14, at 66, 72. Henley saw Appellant outside his window with a knife in his hand, shouting that if Henley did not come out in 15 minutes, he was going to kick in Henley’s door. Id., at 69-70. Henley, who had had prior run-ins with Appellant and knew that Appellant had guns, called the police. Pennsylvania State Troopers Kearney and Olszar responded and, after Henley informed them that Appellant had firearms in the apartment, five more troopers were called in to cover the back door and area around the building at the tree line. Appellant exited the apartment, and Trooper Riddell handcuffed him for safety, walked him to a nearby parking lot, and patted him down for weapons. Appellant was not armed, but when asked about weapons in the home, Appellant informed troopers that there were two guns in the apartment that belonged to Hockenjos, his girlfriend. Appellant also volunteered that he had moved from New Jersey to the Smithtown apartment three months prior “to get away from all this stuff,” i.e. similar problems that he had experienced in New Jersey. N.T. Omnibus Hearing, 10/31/13, at 27, N.T. Trial, 3/11/14, at 149, 161. Hockenjos invited State Trooper Kearney into the apartment. She retrieved two guns from the living room, and gave them to Trooper Kearney, telling him that the firearms were hers. See N.T. Omnibus Hearing, 10/31/13, at 14-16, 19-20; N.T. Trial, 3/11/14, at 171-72. 2 J-S40034-17 The Commonwealth charged Appellant with, inter alia, Person not to Possess a Firearm, Terroristic Threats, Harassment, and Public Drunkenness. After a preliminary hearing, the court bound the charges over for trial. At Appellant’s arraignment on May 29, 2013, the court ordered that Omnibus Pre-trial Motions be filed by June 26, 2013. On July 30, 2013, Appellant filed an Omnibus Pre-trial Motion, including a Motion to Suppress, and contended, inter alia, that his statements about his moving to Pennsylvania should be suppressed because he was not given his Miranda warning.1, 2 The court held a hearing on Appellant’s omnibus motion on October 31, 2013. The court subsequently granted the Commonwealth’s Motion to Reopen, and held an additional hearing where the Commonwealth introduced Appellant’s application for a Pennsylvania State Identification card. On January 21, 2014, the court dismissed the Omnibus Motion as untimely pursuant to Pa.R.Crim.P. 579(A).3 See Trial Ct. Order and Opinion, 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 On August 30, 2013, Appellant was again charged with various offenses after Appellant and Henley had another run-in, which escalated and resulted in Appellant breaking Henley’s arm with a crowbar after Henley had fired a warning shot into the air. See N.T. Trial, 3/11/14, at 71-76. Those charges were consolidated with the April 2013 charges. Henley was not charged. 3 Pa.R.Crim.P. 579(A) provides, in relevant part, that an “omnibus pretrial motion for relief shall be filed and served within 30 days after arraignment, unless opportunity therefor did not exist, or the defendant or defense 3 J-S40034-17 dated 1/21/14. The court nonetheless addressed the merits of the Motion and, after noting its finding that the troopers’ testimony was credible, concluded that in light of the circumstances, the conditions of Appellant’s detention were similar to that of a valid investigatory detention to gather information and to determine if there was a safety concern. Id. at 8. The court also concluded that Appellant had offered the statement about his having moved to Pennsylvania from New Jersey without any prompting from the troopers. Id. Having determined that there had been no Miranda violation, the court concluded that Appellant’s statement about the guns and his current residence would not be suppressed.4 Appellant was present for jury selection on March 4, 2014. On March 10, 2014, the first day of trial, Appellant did not appear because he was out of state and allegedly had no transportation. The court continued the trial to the next day. On March 11, 2014, Appellant failed to appear, and the court issued a warrant for his arrest and held the trial with Appellant in absentia. The jury found him guilty of all charges, except for Public Drunkenness. Appellant was subsequently apprehended and on June 30, 2014, the court sentenced him to an aggregate term of 42 to 84 months’ incarceration. After the denial of his post-sentence motion, Appellant timely appealed, and attorney … was not aware of the grounds for the motion, or unless the time for filing has been extended by the court for cause shown.” 4 The court also noted that Hockenjos had invited Trooper Kearney into the apartment and the guns obtained were, therefore, admissible. 4 J-S40034-17 this Court affirmed the Judgment of Sentence. Commonwealth v. Milinski, No. 2240 EDA 2014 (Pa. Super. filed June 5, 2015). Appellant filed a timely pro se PCRA Petition, amended after the appointment of counsel, alleging ineffective assistance of trial counsel for failing to file a timely Pre-trial Motion to Suppress. The PCRA court held a hearing on June 23, 2016, and denied the Petition on November 17, 2016. Appellant timely appealed to this Court. Appellant raises one issue: “Whether the [PCRA] court erred in finding that trial counsel provided effective assistance of counsel.” Appellant’s Brief at 5. We review the denial of a PCRA Petition to determine whether it is supported by the record and free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). We grant great deference to the findings of the PCRA court, and “these findings will not be disturbed unless they have no support in the certified record.” Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003). “The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Moreover, “where a PCRA court’s credibility determinations are supported by the record, they are binding on the reviewing court.” Commonwealth v. White, 734 A.2d 374, 381 (Pa. 1999). 5 J-S40034-17 Appellant avers that he received ineffective assistance of trial counsel. The law presumes counsel has rendered effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he burden of demonstrating ineffectiveness rests on Appellant.” Id. To satisfy this burden, Appellant must plead and prove by a preponderance of the evidence that: “(1) his 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 challenged proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in rejection of the appellant’s ineffective assistance of counsel claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). Appellant avers that his underlying claim, i.e., that his statement to the troopers should have been suppressed, has arguable merit. He also alleges that counsel did not have a reasonable basis for failing to file a timely pre-trial motion, and but for counsel’s error, “Appellant would have had a substantially greater likelihood of having said statements suppressed” and “the suppression of the statements would have had a significant impact at trial [because] Appellant’s statement that he had been residing in the apartment and his acknowledgement that there were firearms located in the 6 J-S40034-17 residence constituted the only evidence establishing Appellant’s constructive possession of the firearms.” Appellant’s Brief at 29-30. The PCRA Court thoroughly addressed Appellant’s arguments in its Opinion denying the PCRA Petition, with citation to relevant statutory and case law, as well as thoughtful analysis and reasoning. The certified record supports the court’s findings. Therefore, we adopt that Opinion as our own for purposes of this appeal, and affirm the denial of relief. See PCRA Court Opinion, dated November 17, 2016 (finding that the public safety exception to Miranda applied under the circumstances presented and Appellant’s statement about the guns in the residence was therefore admissible, id. at 9-10; (2) Appellant’s statement about his current residence was spontaneous, voluntary, and not in response to custodial interrogation, id. at 10; and (3) notwithstanding counsel’s unexplained tardiness in filing the omnibus motion, Appellant did not suffer prejudice because his statements were not subject to suppression, id. at 11). We direct the parties to annex the PCRA court’s November 17, 2016 Opinion to all future filings. Order affirmed. 7 J-S40034-17 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/19/2017 8 Circulated 06/30/2017 12:01 PM
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
