Com. v. Henderson, S. (memorandum)

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J-S09007-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. SHAQUILLE HENDERSON Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2245 EDA 2020 Appeal from the PCRA Order Entered November 10, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009598-2013 BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.* MEMORANDUM BY LAZARUS, J.: FILED MAY 16, 2022 Shaquille Henderson appeals from the trial court’s order denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm based on the well-reasoned opinions authored by the Honorable Lillian H. Ransom and the Honorable Tracy Brandeis-Roman. In March 2013, police responded to a shooting at 1311 W. Butler Street in Philadelphia. A witness had called 9-1-1 after hearing several gunshots at a boarding home where the witness, the victim, and Henderson lived. The witness found the victim unresponsive on the floor of a room on the third floor of the boarding home. Upon their arrival, officers observed the victim lying in the hallway suffering from multiple gunshot wounds. ____________________________________________ * Former Justice specially assigned to the Superior Court. J-S09007-22 The victim was pronounced dead at the scene; an autopsy revealed that he had been shot nine times, suffering three independent fatal wounds—one to the left side of the head, one near the base of the neck, and one directly to the heart. Among other things, police recovered an empty firearm lock box for a Glock pistol in one of the third-floor bedrooms, and nine fired cartridge casings on the steps leading from the second floor to the third-floor hallway of the boarding house. Henderson was able to elude capture until April 25, 2013. On that date, officers observed Henderson sitting on a bench outside a Starbucks on Temple University’s campus. Knowing there was an outstanding warrant for Henderson’s arrest on an unrelated case, the officers approached him. Henderson fled as soon as he saw the officers. During their pursuit of Henderson, officers observed him discard a weapon into a nearby alleyway.1 The weapon, a police-issued Glock 17 pistol, was later recovered and determined to be the murder weapon in the March 2013 Butler Street shooting. The gun had been reported stolen from an apartment on September 13, 2012, during a burglary. Henderson filed a pre-trial motion to suppress “any and all evidence recovered from his person[,] . . . any and all information retrieved from a cell phone(s) recovered from his person at the time of his arrest[, and] all items of physical evidence recovered inside 1311 W. Butler Street,” including the ____________________________________________ Henderson was arrested and found to be in possession of several grams of crack cocaine. 1 -2- J-S09007-22 lockbox and cartridge casings. 9/16/14, at 1-2. Motion to Suppress Physical Evidence, On September 25, 2014, the court held a suppression hearing at which six officers and detectives involved in the case testified for the Commonwealth. At the beginning of the hearing, Henderson’s counsel acknowledged that he was not contesting the officers’ authority to enter the property or their right to examine the common areas of the boarding house. N.T. Suppression Hearing, at 8. Following a suppression hearing,2 the court granted Henderson’s motion in part, suppressing fingerprints found on items inside Henderson’s backpack and photos found on Henderson’s cell phone. The court, however, denied the motion with respect to the lockbox and casings.3 Following the hearing, the court issued its findings of fact and conclusions of law, which included the following: [] Officer [Robert] Slaughter was the first responder and he spoke with a male who gave consent for the officer to enter the location. [] Upon entry the officer found fired cartridge casings on the stairway going from the second to the third floor, and he located a bleeding and unresponsive male lying in the hallway of the third floor. ____________________________________________ The court issued detailed findings of fact and conclusions of law, in compliance with Pa.R.Crim.P. 581(I). 2 Although unrelated to the issue on appeal, Henderson also sought to suppress his post-arrest statement, made to a lieutenant, claiming it was made in violation of his state and federal rights where it was taken without counsel present or a valid waiver of his right to counsel. 3 -3- J-S09007-22 [] Officer Slaughter testified that he secured the crime scene and that he opened no doors at that location. * * * [] The door to the third[-]floor bedroom was in the open position in the photos taken by the Crime Scene Unit. Officer Jacqueline Davis testified that the door was open when she arrived. * * * [A] search and seizure warrant was executed on March 8, 2013[,] and the following items were recovered: Fired cartridge casings from the second[-]floor landing and from the stairway leading from [the] second to [the] third floors[; and] An empty gun box which was in plain view on the bed in the third[-]floor bedroom[.] Findings of Fact and Conclusions of Law, 10/7/14, at ¶¶ 2-4, 6, 9. A five-day jury trial was held in October 2014. On October 31, 2014, Henderson was found guilty of first-degree murder4 and related offenses and sentenced to mandatory term of life in prison without the possibility of parole.5 the above-stated offenses and sentenced to a mandatory term of life in prison without the possibility of parole. Henderson timely filed post-sentence ____________________________________________ 4 18 Pa.C.S.A. § 2502. Henderson was also charged with various violations of the Uniform Firearms Act (VUFA) and possession of an instrument of crime (PIC). In addition to murder, he was convicted of carrying firearms in public in Philadelphia (M-1), 18 Pa.C.S.A. §6108. Henderson was sentenced “with no further penalty” on the section 6108 offense. 5 -4- J-S09007-22 motions that were denied by operation of law. Henderson filed a timely notice of appeal; our Court affirmed his judgment of sentence. Commonwealth v. Henderson, No. 870 EDA 2015 (Pa. Super. filed April 28, 2017) (unpublished memorandum decision).6 The Pennsylvania Supreme Court denied Henderson’s petition for allowance of appeal on August 9, 2017. See id., No. 236 EAL 2017 (Pa. filed Aug. 9, 2018) (order). On May 16 2018, Henderson filed a pro se PCRA petition. The court appointed counsel, who filed an amended PCRA petition on September 15, 2019. The trial court issued Pa.R.Crim.P. 907 notice of its intent to dismiss Henderson’s petition without a hearing on September 23, 2020. Henderson filed a Rule 907 response on October 6, 2020. On November 10, 2020, the court dismissed the petition. Henderson filed a timely notice of appeal and court-ordered Rule 1925(b) statement. He raises the following issue for our review, “Did the trial court err in denying [Henderson’s] amended PCRA petition without a hearing after appellate counsel failed to argue a challenge to the suppression ruling ____________________________________________ 6 In his Pa.R.A.P. 1925(b) concise statement of errors complained of on direct appeal, Henderson included an issue regarding the improper admission of the firearm lockbox and empty shell casings. However, in his appellate brief, counsel did not include the issue. See Pa.R.A.P. 1925(b) Concise Statement, 4/16/15, at 2 (“The Defendant must be awarded a new trial as the [c]ourt allowed the introduction of evidence, i.e. an empty gun box and various ballistics evidence, that were recovered inside a room located within 1311 W. Butler Street.”). -5- J-S09007-22 on direct appeal after raising same in the [Rule] 1925([b]) statement?” Appellant’s Brief, at 4.7 Our standard of review from the denial of a PCRA petition “is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA court’s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014) (citation omitted). Moreover, a PCRA petitioner has “no absolute right to an evidentiary hearing on a . . . petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary.” ____________________________________________ Henderson’s single issue on appeal raises a claim of ineffectiveness of appellate counsel. To be entitled to relief on a claim of ineffective assistance of counsel, a petitioner must establish that: (1) the underlying claim has arguable merit; (2) counsel lacked a reasonable basis for his action or inaction; and (3) but for the act or omission in question, the outcome of the proceedings would have been different (i.e., petitioner was prejudiced). See Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007). “A claim of ineffectiveness may be denied by a showing that the petitioner’s evidence fails to meet any of these prongs.” Id. (citations omitted). See also Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citations omitted) (to establish ineffectiveness under PCRA, petitioner “must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could have taken place”). Finally, we presume that the petitioner’s trial counsel was effective. Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014). 7 -6- J-S09007-22 Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (internal citation omitted); see also Pa.R.Crim.P. 907(1). We review a PCRA court’s decision to dismiss a petition without a hearing under an abuse of discretion standard. See Commonwealth v. Brown, 196 A.3d 130, 192-93 (Pa. 2018) (internal citation omitted). Here, testimony at Henderson’s suppression hearing revealed that the ballistic evidence was in open view in the common area of the boarding house—specifically in the stairway leading from the second floor to the thirdfloor hallway. N.T. Suppression Hearing, 9/25/14, at 76, 81, 86, 90. See Commonwealth v. Hendrix, 627 A.2d 1224, 1226 (Pa. Super. 1993) (subjective expectation of privacy for item in area of common access deemed unreasonable; visual observation of evidence located in open view in unprotected area does not constitute search so as to trigger Fourth Amendment protections). Moreover, investigating officers testified that the door to Henderson’s third-floor bedroom was ajar when they arrived at the scene, and that the lock box was in plain view on the bed in Henderson’s bedroom. N.T. Suppression Hearing, 9/25/14, at 75-76, 81, 91-94. Photographs from the crime scene, taken while evidence was being collected and subsequently admitted into evidence, confirmed that the bedroom door was open. Id. at 91-92. Thus, no search warrant was necessary to retrieve the lock box. See Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012) (citations omitted) (“[E]vidence in plain view of the police can be seized -7- J-S09007-22 without a warrant . . . if: 1) police did not violate U.S. Const. amend. IV during the course of their arrival at the location where they viewed the item in question; 2) the item was not obscured and could be seen plainly from that location; 3) the incriminating nature of the item was readily apparent; and 4) police had the lawful right to access the item.”). After reviewing the certified record, the parties’ briefs, and relevant case law, we rely upon the opinions, authored by Judge Ransom and Judge Brandeis-Roman, to affirm the court’s denial of Henderson’s PCRA petition. See Trial Court’s Rule 1925(b) Opinion, 9/17/15, at 8; PCRA Court’s Rule 1925(b) Opinion, 6/9/21, at 7-10. Henderson’s underlying claim lacks arguable merit; thus, he cannot succeed in his ineffectiveness claim. Washington, supra. Moreover, because no genuine issues of material fact exist, the PCRA court correctly determined that a hearing on Henderson’s petition was not necessary. Jones, supra. We instruct the parties to attach the opinions in the event of further proceedings in the matter. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/16/2022 -8- Circulated 04/25/2022 11:41 AM 0052_Opinion Circulated 04/25/2022 11:41 AM

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