Com. v. Bundy, N. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NATHAN WINSTON BUNDY :
:
Appellant : No. 964 EDA 2018
Appeal from the PCRA Order April 2, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003368-2008
BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 07, 2019
Nathan Winston Bundy appeals from the order entered April 2, 2018, in
the Philadelphia County Court of Common Pleas, dismissing his first petition
for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1
Bundy seeks relief from the judgment of sentence of an aggregate term of 19
to 38 years’ imprisonment, imposed following his jury conviction of third-
degree murder, possession of a firearm without a license, and possession of
an instrument of crime (“PIC”).2 On appeal, Bundy contends the PCRA court
erred in dismissing his petition without first conducting an evidentiary hearing
on his claims that trial counsel was ineffective for: (1) failing to object when
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 Retired Senior Judge assigned to the Superior Court.
1 See 42 Pa.C.S. §§ 9541-9546.
2 See 18 Pa.C.S. §§ 2502(c), 6106(a), and 907(a), respectively.
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he was arraigned on a charge of persons not to possess firearms (18 Pa.C.S.
§ 6105) before the jury; (2) failing to file a motion to suppress two statements
he provided to police; and (3) failing to object to prosecutorial misconduct.
For the reasons below, we affirm.
The facts underlying Bundy’s arrest and conviction were summarized by
a prior panel of this Court as follows:
On December 13, 2007[,] at approximately 5:00 p.m., [Bundy]
and Jerome Foreman (“Foreman”) engaged in a gun battle on a
public street in a residential neighborhood in Philadelphia.
Foreman called [Bundy] on the telephone and challenged him to
come outside to settle an argument over a watch. As [Bundy]
walked outside, Foreman saw him and began shooting. Foreman
was standing in front of a convenience store when [Bundy]
returned fire, firing thirteen (13) shots from a Ruger 9mm. One
of these stray bullets entered the store behind Foreman and killed
the store clerk, Craig Young.
Commonwealth v. Bundy, 24 A.3d 452 [284 EDA 2010] (Pa. Super. 2011)
(unpublished memorandum at 1) (citation omitted). Bundy was apprehended
fleeing from the scene, and initially told officers that someone had tried to rob
him. See N.T., 5/7/2009, at 62-63. After Bundy was unable to identify
persons stopped at two locations, he admitted to the officers that he had been
robbed two weeks earlier, and believed he “was being set up” at the time of
the shooting. Id. at 68. He claimed he fled after someone started shooting.
See id. at 68-69. Bundy was transported to the police station as a witness,
and within 30 minutes of his arrival, gave a similar statement to another
officer. See id. at 150-154, 157, 164. Later, Bundy was provided with
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Miranda3 warnings, and gave a second statement to police, in which he
conceded that he returned fire after others shot at him. See id. at 184-204.
Bundy was charged with murder, PIC, and three firearm offenses.4
Following a jury trial, he was found guilty of the aforementioned crimes. On
August 12, 2009, Bundy was sentenced to a term of 19 to 38 years’
imprisonment for third-degree murder, a concurrent term of three and one-
half to seven years for the firearms conviction, and a concurrent term of two
and one-half to five years for the PIC conviction. Bundy filed a direct appeal
to this Court, which affirmed the judgment of sentence in an unpublished
decision. See Bundy, supra. On September 19, 2011, the Pennsylvania
Supreme Court denied his petition for review. See Commonwealth v.
Bundy, 29 A.3d 794 (Pa. 2011).
On December 11, 2012, Bundy filed a timely, pro se PCRA petition.5
Counsel was appointed, and filed an amended petition on October 23, 2014.
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3 Miranda v. Arizona, 384 U.S. 436 (1966).
4 In addition to carrying a firearm without a license, Bundy was also charged
with persons not to possess firearms and carrying a firearm on a public street
in Philadelphia. See 18 Pa.C.S. §§ 6105(a)(1) and 6108. The
Commonwealth, however, chose not to proceed on those charges at trial.
5 A PCRA petition must be filed within one year of the date the petitioner’s
judgment of sentence is final. See 42 Pa.C.S. § 9545(b)(1). In this instance,
Bundy’s judgment of sentence was final on December 19, 2011, 90 days after
the Pennsylvania Supreme Court denied review, and the period for filing a writ
of certiorari with the United States Supreme Court expired. See 42 Pa.C.S.A.
§ 9545(b)(3); U.S.Sup.Ct.R. 13.
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For reasons not revealed in the record, the case sat dormant until November
of 2016, when another new attorney was appointed. That attorney filed
another amended petition, the one presently before us, on January 31, 2017.
The Commonwealth filed a motion to dismiss the petition on January 12, 2018.
Thereafter, on February 12, 2018, the PCRA court provided Bundy with notice
of its intent to dismiss the petition without first conducting an evidentiary
hearing pursuant to Pa.R.Crim.P. 907. Bundy did not file a response to the
court’s Rule 907 notice, and, therefore, the PCRA court dismissed Bundy’s
petition on April 2, 2018. This timely appeal follows.6
As noted above, all three claims Bundy raises on appeal challenge the
ineffective assistance of trial counsel. Our standard of review, when
considering the denial of PCRA relief, is well settled. “In reviewing the denial
of PCRA relief, we examine whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v.
Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016) (internal punctuation and
citation omitted). Further, “a PCRA court may decline to hold a hearing on
the petition if petitioner’s claim is patently frivolous or lacks support from
either the record or other evidence.” Commonwealth v. duPont, 860 A.2d
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6 On April 3, 2018, the PCRA court ordered Bundy to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Bundy
complied with the court’s directive, and filed a concise statement on April 8,
2018.
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525, 530 (Pa. Super. 2004) (citation omitted), appeal denied, 889 A.2d 87(Pa. 2005), cert. denied, 547 U.S. 1129 (2006).
In order to obtain relief based upon an allegation of the ineffective
assistance of counsel, a PCRA petitioner must demonstrate: “(1) the claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) counsel’s ineffectiveness prejudiced him.”
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013).
Moreover, we presume counsel provided effective assistance, and “place upon
the appellant the burden of proving otherwise.” Id.First, Bundy argues the PCRA court erred in dismissing his petition
without a hearing on his claim that counsel was ineffective for “allowing [him]
to be arraigned” on the charge of persons not to possess firearms (18 Pa.C.S.
§ 6105) before the jury. Bundy’s Brief at 8. He insists: “This is America and
everyone knows that the only people that are prohibited from firearm
possession are convicted felons.” Id. Bundy maintains counsel had no
reasonable basis for the inaction, and he suffered prejudice because “his prior
felony was effectively revealed.” Id. at 10. Bundy contends the “suggestion
as to prior criminality” is the reason Section 6105 charges are severed from a
jury trial. Id.
Here, the PCRA court determined Bundy failed to demonstrate “his
arraignment on VUFA [Violation of the Uniform Firearms Act] § 6105 before
the jury prejudiced the outcome of his trial.” PCRA Court Opinion, 6/7/2018,
at 5. The court explained:
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At the onset of [Bundy’s] trial, [Bundy] was arraigned before the
jury on five (5) charges. As is customary, the court officer asked
[Bundy] how he pled to each charge. VUFA § 6105 was the second
(2nd) charge out of five (5) to which [Bundy] was asked to plead.
As noted by the Commonwealth, the court officer merely asked
[Bundy], “to the charge of possession of a firearm prohibited, how
do you plead?” [Bundy] responded “not guilty.” The court officer
then proceeded to ask about the other three (3) charges. VUFA §
6105 was not highlighted and did not stand out from the other
charges in any way. [Bundy’s] criminal past was never
mentioned. No evidence of [Bundy’s] criminal past was
introduced. While [Bundy] is correct that “no reference may be
made at trial to a defendant’s prior criminal acts”, this Court did
not find that the limited verbal arraignment on VUFA § 6105, in
any way constituted a reference to [Bundy’s] prior criminal
history. It is illogical to assume that the mention of “possession
of a firearm prohibited” signaled to the jury that [Bundy] had a
prior felony history. There are a multitude of gun laws that
regulate firearm possession; convicted felons are not the only
class of citizens who are prohibited from possessing a firearm.
The court will not assume, and [Bundy] has not proven, that
arraigning [Bundy] on VUFA § 6105 before the jury, at the onset
of trial, where his criminal past was not explicitly mentioned,
prejudiced [Bundy].
Id. (record citations omitted).
We agree with the PCRA court’s analysis. It is important to reiterate
Bundy was briefly arraigned on five charges just prior to the start of trial. See
N.T., 5/6/2009, at 271. The only mention of the Section 6105 offense was
the following:
A COURT OFFICER: To the charge—on the same bill to the charge
of possession of a firearm prohibited, how do you plead?
[BUNDY]: Not guilty.
Id. Bundy was then arraigned on two additional gun charges, firearms not to
be carried without a license and carrying firearms in public in Philadelphia.
See id. at 271-272. As the PCRA court explained, there was no mention of
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Bundy’s criminal record, nor any indication that he was prohibited from
possessing a firearm based on a prior felony conviction.
Moreover, we find Bundy’s reference to cases in which the trial court
denied a motion to sever a Section 6105 charge from a jury trial clearly
distinguishable. See Bundy’s Brief at 9-10. Indeed, in those cases, this Court
found the defendant was prejudiced because in order to prove the offense to
the jury, the Commonwealth was required “to show a previous conviction for
a violent crime.” Commonwealth v. Carroll, 418 A.2d 702, 704 (Pa. Super.
1980). Therefore, in such a case, “the jury [was] exposed to the fact that this
particular defendant had previously committed a violent crime.” Id. See also
Commonwealth v. Galassi, 442 A.2d 328 (Pa Super. 1982). Here, there
was absolutely no reference to Bundy’s prior convictions.7 Accordingly, this
claim fails.
Next, Bundy contends the PCRA court erred in dismissing his petition
without a hearing on his claim that counsel was ineffective for failing to file a
pretrial motion to suppress two statements he provided to police. See
Bundy’s Brief at 11. Bundy argues he gave the first statement without being
provided his Miranda rights, and “while in custody and [] not free to leave.”
Id. at 12. Although he was Mirandized before his second statement, Bundy
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7 We note, too, at the time those severance cases were decided, Section 6105
was titled, “Former convict not to own a firearm.” See 18 Pa.C.S. § 6105,
amended 1995, June 13, P.L. 1024, No. 17 (Spec. Sess. No. 1), § 2, effective
in 120 days (emphasis supplied).
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insists it was “tainted by the first non-Mirandized statement.” Id. Moreover,
he emphasizes he was in custody “for thirty hours” before giving the second
statement and “bullied into making a statement because police stated that
[he] was lying with no cutoff unless a confession occurred.” Id. at 13. Bundy
maintains he was prejudiced by counsel’s failure to seek suppression of his
statements because there was “very little evidence” against him, and the
Commonwealth used his “two contradictory statements to imply guilt.” Id. at
13-14.
It is axiomatic that Miranda warnings are required only when a
defendant is subject to a custodial interrogation. See Commonwealth v.
Heggins, 809 A.2d 908, 914 (Pa. Super. 2002) (“In order to trigger the
safeguards of Miranda, there must be both custody and interrogation”),
appeal denied, 827 A.2d 430 (Pa. 2003). Our Supreme Court has explained:
“The standard for determining whether police have initiated a
custodial interrogation or an arrest is an objective one, with due
consideration given to the reasonable impression conveyed to the
person interrogated rather than the strictly subjective view of the
troopers or the person being seized.” … A person is in custody
when he is physically denied his freedom of action in any
significant way or is placed in a situation in which he reasonably
believes that his freedom of action or movement is restricted by
the interrogation.
Commonwealth v. Yandamuri, 159 A.3d 503, 517-518 (Pa. 2017) (internal
citations omitted). When determining whether a person is in custody for
Miranda purposes,
[t]he court must consider the totality of circumstances, including
factors such as “the basis for the detention; the duration; the
location; whether the suspect was transferred against his will, how
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far, and why; whether restraints were used; the show, threat or
use of force; and the methods of investigation used to confirm or
dispel suspicions.”
Commonwealth v. Cruz, 71 A.3d 998, 1004 (Pa. Super. 2013) (citation
omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
In the present case, the PCRA court concluded there was no arguable
merit to Bundy’s claim because (1) Bundy was not in custody when he gave
his first statement, and (2) he was provided with Miranda warnings before
his second statement. The court opined:
Here, [Bundy] was initially treated as a witness therefore
Miranda warnings were unnecessary. [Bundy] was transported
to the Homicide Unit by Housing Authority Officer’s (sic) as a
witness to the shooting of Craig Young. At that time, he was not
the focus of the investigation, but a witness. He was not
handcuffed or restrained. [Bundy] was interviewed by Detective
Buckley within thirty (30) minutes of arriving at the Homicide Unit.
Detective Buckley asked [Bundy] for basic biographical
information and whether he could read, write and understand
English, to which [Bundy] replied “yes.” [Bundy] was also asked
whether he was under the influence of alcohol or drugs and he
replied “no”. Detective Buckley then interviewed [Bundy]
specifically about the shooting of Craig Young, asking how
[Bundy] knew the victim and what [Bundy] knew about the
shooting. [Bundy] told the detective that he heard someone call
his name, then he heard shots and took off running until he was
approached by police. Detective Buckley then requested [Bundy]
read and sign the typed interview and [he] complied. After this
initial statement was given to Detective Buckley, [Bundy] was left
to sit on a bench in the waiting area, unrestrained, while waiting
for transportation by the officer who brought him in, as was
customary for witnesses brought in by police officers. [Bundy]
was not detained or in custody for Miranda purposes. The
Pennsylvania Supreme Court has found that when individuals are
interviewed as a witness, like here, even if they are subsequently
arrested, Miranda warnings are not required.5 Thus, [Bundy’s]
claim that trial counsel as ineffective for failing to file a Motion to
Suppress [Bundy’s] initial statement to homicide detectives is
without arguable merit.
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5 In Commonwealth v. Homer, 442 A.2d 682 (Pa. 1982),
the Pennsylvania Supreme Court found Miranda warnings
were unnecessary where a defendant was brought to the
homicide division as a witness, in a locked police van and
treated as a witness until police reviewed statements of
other witnesses and made a decision to arrest the
defendant.
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Accordingly, [Bundy’s] assertion that his second,
Mirandized statement, should be suppressed because it was
tainted by the first, non-Mirandized statement is meritless
because [Bundy’s] first statement did not require Miranda
warnings.
PCRA Court Opinion, 6/7/2018, at 6-7 (record citations omitted).
Our review of the record supports the trial court’s findings. When Bundy
was initially stopped by the housing officers, he told them he had been a victim
of a robbery. In response, the officers relayed a description he provided of
the alleged suspect over the police radio, and transported Bundy to two
separate locations to see if he could identify suspects that were stopped based
on his description. See N.T., 5/7/2009, at 62-65. Later, after the officers
took Bundy back to the scene of the shooting, Bundy acknowledged he had
been robbed two weeks earlier, and he believed he was the target of the
shooters. See id. at 68-69. Bundy was then transported to the police station,
where he was interviewed by Detective Stephen Buckley. Detective Buckley
explained that, at that time, Bundy was simply a witness to the shooting. See
id. at 149-150. See also id. at 156 (“He was present at the scene of the
shooting. They brought him in as a witness.”). The detective stated:
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When I completed my interview, I sat [Bundy] back out on the
bench where he first came from, and I let him know as soon as
we are done interviewing the officers that brought you in, you are
going to be getting out of here.
Id. at 156. Bundy was not handcuffed, and was given food. See id. at 217-
219. Sometime after speaking with the officers who transported Bundy to the
station, the detectives determined there were inconsistencies in Bundy’s
account. See id. at 165. It was at that point he became a suspect.
Accordingly, because at the time of the first interview, Bundy was not in
custody, Miranda warnings were not required. Therefore, we agree with the
PCRA court that there is no arguable merit to his claim that counsel should
have filed a motion to suppress his first statement.
With regard to his second statement, Bundy’s argument focuses on his
claim that the second Mirandized statement was tainted by the first, non-
Mirandized statement. See Bundy’s Brief at 12. Because we have concluded
the first statement did not require Miranda warnings, we agree with the PCRA
court that the second statement was not tainted. See PCRA Court Opinion,
6/7/2018, at 7. Furthermore, to the extent Bundy contends his second
statement was involuntary, we find this claim is undeveloped, and therefore
waived. Bundy cites one case for the proposition that “[e]xtended time in
custody” can undermine the voluntariness of a defendant’s statement.
Bundy’s Brief at 12. His entire argument on this issue is limited to the
following:
[Bundy] was in custody for thirty hours prior to giving the second
statement and he was bullied into making a statement because
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police stated that [he] was lying with no timely cutoff unless a
confession occurred.
Id. at 13. He provides no further argument, citation to relevant authority, or
explanation as to why his statement was involuntary. Accordingly, we find
this claim waived.8 See Commonwealth v. Rhodes, 54 A.3d 908, 915 (Pa.
Super. 2012) (defendant waived issue when he failed to “adequately develop
[the] argument”).
In his final claim, Bundy challenges the PCRA court’s refusal to grant
him an evidentiary hearing on his claim that trial counsel was ineffective for
failing to object to prosecutorial misconduct. See Bundy’s Brief at 14-15.
Specifically, Bundy asserts the prosecutor improperly elicited testimony
“about a receipt for $500 from a lawyer that was in [Bundy’s] possession when
arrested.” Id. at 14. He insists this testimony was improper because it
implied he either had a criminal record, or he anticipated his arrest for this
crime:
Presently, the mention of a receipt for $500 from a lawyer
in [Bundy’s] possession implied prior criminality because no young
men pay lawyers for anything other than crimes, especially those
who are charged with Murder before a jury. Moreover, and
potentially worse, the information would imply consciousness of
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8 It merits mention the PCRA court found Bundy’s second statement was
voluntary under the totality of the circumstances. See PCRA Court Opinion,
6/7/2018, at 8 (noting Bundy was “unrestrained, given food and water,
allowed to use the restroom and was not injured or ill.”). Further, the court
concluded the record did not support Bundy’s assertion that he was “abused
or threatened into confession to police.” Id. at 8-9. We find no basis to
disagree.
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guilt in the present case because it implies that [Bundy] was
giving money to an attorney in the present matter in anticipation
of arrest.
Id. at 15.9
It is well-settled that “generally no reference may be made at trial in a
criminal case to a defendant’s arrest or incarceration for a previous crime[.]”
Commonwealth v. Johnson, 838 A.2d 663, 680 (Pa. 2003), cert. denied,
543 U.S. 1008 (2004). Nevertheless, “there is no rule in Pennsylvania which
prohibits reference to a defendant’s incarceration awaiting trial or arrest for
the crimes charged.” Id.The receipt recovered from Bundy’s car was referred to in the following
context. After Bundy was arrested, the police obtained a search warrant for
his car. Detective Francis Kane executed the warrant and described the items
recovered from the automobile as he displayed them to the jury:
[There is] a Motorola cell phone.
One is a receipt from a lawyer’s office in the amount of $500,
and it was received from Nathan Bundy.
This is a Home Depot – looks like a bill from Home Depot in
the name of Nathan Bundy.
This is a correspondence of Community Bank in the name of
Nathan Bundy.
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9 While Bundy raised this same issue in his second amended PCRA petition,
the claim in his brief differs slightly from the issue listed in his concise
statement, where he asserted his “pretrial detention was clearly elicited.”
Statement of Matters Complained of on Appeal Pursuant to Pennsylvania Rule
of Appellate Procedure 1925, 4/8/2018, at 2. However, we decline to find
waiver on this basis. See Pa.R.A.P. 1925(b)(4)(v) (“Each error identified in
the Statement will be deemed to include every subsidiary issue contained
therein which was raised in the trial court”).
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And this is a sales receipt from Raymour & Flanigan
Furniture in the name of Nathan Bundy.
N.T., 5/11/2009, at 8-9. That was the sole reference at trial to the lawyer’s
receipt.
The PCRA court disposed of this claim as follows:
Here, reference to the receipt for legal services found in
[Bundy’s] possession was made in passing and not improper. …
This Court rejects [Bundy’s] claim that the receipt implies prior
criminality “because no young men pay lawyers for anything other
than crimes….” The testimony regarding the receipt was made
within a list of items found in [Bundy’s] possession. It was not
highlighted nor was any specific information regarding the nature
of the legal service given. Furthermore, as the Supreme Court
stated in Johnson, “there is no rule in Pennsylvania which
prohibits reference to a defendant’s incarceration awaiting trial or
arrest for the crimes charged.” [Bundy] has failed to establish
that trial counsel was ineffective for failing to object to the
testimony regarding the receipt because testimony regarding the
receipt for legal services was made in passing and reference to a
defendant’s pretrial incarceration is not improper. Thus, this claim
is without arguable merit.
PCRA Court Opinion, 6/7/2018, at 9-10 (citations omitted).
We agree with the trial court’s conclusion that this issue has no arguable
merit. Moreover, even if Bundy could demonstrate he met the first prong of
the ineffectiveness test, he has failed to establish how this brief, passing
reference to a receipt from a lawyer for undisclosed services prejudiced him.
Accordingly, no relief is warranted.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/19
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