Com. v. Kemp, A. ( 2014 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ALONZO KEMP, : No. 775 WDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, March 12, 2012,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0000453-2010
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 03, 2014
Appellant appeals from the judgment of sentence entered March 12,
2012. Finding no error, we affirm.
The trial court accurately related the factual background:
On October 23, 2009, the Defendant was
pulled over in the Garfield section of the City of
Pittsburgh for traffic violations, including having
tinted windows and brake lights that were not
working. (T.R. 11/29/11, pp. 70, 73, 74). When
officers asked the Defendant to step out of his
vehicle, he did so, telling officers that he just had
“a little bag of weed” on his person. (T.R. 11/29/11,
p. 80). However, when he was searched by police,
they discovered cocaine, marijuana and heroin, with
a total estimated value of $1000, along with $334 in
cash and two (2) cell phones. (T.R. 11/29/11, pp.
81-82, 86-87, 93).
Trial court opinion, 7/3/14 at 1-2.
* Retired Senior Judge assigned to the Superior Court.
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While the factual background is straightforward, the procedural history
is somewhat complex due to the involvement of multiple counsel on behalf
of appellant and appellant’s additional pro se filings. We will simplify the
history noting only those matters germane to the issue on appeal.
On June 23, 2010, counsel for appellant filed a motion to suppress. At
the ensuing hearing on August 16, 2010, testimony was taken from the
arresting officers. It was appellant’s theory that the traffic stop was
pretextual and the subsequent pat-down illegal. At the hearing,
Officer Michael Saldutte testified that as appellant was exiting his vehicle, he
stated, “ah, man, all I have is a little bag of weed on me.” (Notes of
testimony, 8/16/10 at 11.) On August 19, 2010, the trial court denied the
motion to suppress. On December 28, 2010, appellant filed a notice of
appeal pro se.
On September 27, 2011, appellant filed a pro se “Pretrial Writ of
Habeas Corpus,” in which he asserted that the police falsified the “allegation
of probable cause” when they stated in the criminal complaint that as
appellant was exiting his vehicle, he stated, “ah, man, all I have is a little
bag of weed on me.” Appellant concluded by requesting that all charges be
dismissed. On October 17, 2011, appellant filed his second notice of appeal
pro se. On November 22, 2011, the trial court denied appellant’s Pretrial
Writ of Habeas Corpus.
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On November 30, 2011, a jury convicted appellant of two counts of
possession of a controlled substance with intent to deliver and three counts
of simple possession.1 On March 12, 2012, the court sentenced appellant to
an aggregate term of three to six years’ imprisonment followed by
seven years’ probation. Numerous parties filed post-sentence motions
including pro se motions by appellant, the Public Defender, and private
counsel, Mark Rubenstein, Esq. On March 30, 2012, appellant filed a third
notice of appeal pro se, purportedly from the November 22, 2011 order
denying his Pretrial Writ of Habeas Corpus, as made final by the March 12,
2012 judgment of sentence. On April 25, 2012, the parties appeared for a
hearing on post-trial motions. Appellant stated that he wanted to proceed
pro se on post-trial and on appeal. Thereafter, a Grazier colloquy was
conducted, and appellant was permitted to proceed pro se.2
On appeal, appellant raises a single issue, asserting that the trial court
erred in failing to grant his Pretrial Writ of Habeas Corpus petition. Appellant
claims that the police lied when he supposedly admitted having “a little bag
of weed on me.” Although he does not extend his argument further,
presumably appellant is also arguing that the drug evidence should have
1
35 P.S. § 780-113(a)(30) and (16), respectively.
2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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been suppressed because without this admission, the police were without
probable cause to search him. We find no merit in appellant’s argument.3
As a procedural matter, we note that appellant was represented by
counsel when he filed the Pretrial Writ of Habeas Corpus petition pro se.
We agree with the trial court that appellant was not entitled to hybrid
representation. Our supreme court has set a Commonwealth policy that no
defendant has a right to hybrid representation, either at trial or on appeal.
Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013), cert. denied,
Padilla v. Pennsylvania, 134 S.Ct. 2725 (2014). Therefore, the trial court
properly could not grant relief on his Pretrial Writ of Habeas Corpus petition.
3
We also disagree with the Commonwealth’s argument. The
Commonwealth asserts that appellant’s Pretrial Writ of Habeas Corpus
petition must be treated as a petition under the Post Conviction Relief Act
(“PCRA”). As such, the Commonwealth argues, appellant’s claim is not
cognizable under the PCRA. We acknowledge that there is abundant case
law directing that petitions for writ of habeas corpus be treated as petitions
under the PCRA. See Commonwealth v. Turner, 80 A.3d 754, 770 (Pa.
2013), cert. denied, Turner v. Pennsylvania, 134 S.Ct. 1771 (2014).
However, these cases pertain to instances where the petition for writ of
habeas corpus was filed post conviction (and usually following a direct
appeal) and was functioning as a vehicle for collateral review. As these
cases note, the PCRA subsumes the remedy of habeas corpus on collateral
review. 42 Pa.C.S.A. § 9541. Instantly, however, appellant’s Pretrial Writ of
Habeas Corpus petition was not attempting to seek collateral review but
rather pre-trial dismissal of charges. Thus, it should not be treated as a
PCRA petition. Moreover, our case law holds that the PCRA subsumes the
remedy of habeas corpus where the claims asserted are cognizable under
the PCRA. Turner, 80 A.3d at 770. If appellant’s argument on appeal is not
cognizable under the PCRA, as the Commonwealth contends, then
appellant’s Pretrial Writ of Habeas Corpus petition would not be subsumed
by the PCRA.
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Moreover, we find that appellant’s issue, raised as per his Pretrial Writ
of Habeas Corpus petition, actually goes to the decision of the court below to
deny the motion to suppress. In this regard, we note our standard of
review:
Our standard of review in addressing a challenge to
the denial of a suppression motion is limited to
determining whether the suppression court’s factual
findings are supported by the record and whether
the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed
before the suppression court, we may consider only
the evidence of the Commonwealth and so much of
the evidence for the defense as remains
uncontradicted when read in the context of the
record as a whole. Where the suppression court’s
factual findings are supported by the record, we are
bound by these findings and may reverse only if the
court’s legal conclusions are erroneous. Where, as
here, the appeal of the determination of the
suppression court turns on allegations of legal error,
the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to
determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of
the courts below are subject to our plenary review.
Commonwealth v. Thompson, 93 A.3d 478, 484 (Pa.Super. 2014),
quoting Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super.
2012), appeal denied, 65 A.3d 413 (Pa. 2013).
We are bound by the credibility determinations of the trial court where
they are supported by the record. Commonwealth v. Floyd, 937 A.2d
494, 500 (Pa.Super. 2007). Here, the court below made a specific
determination that Officer Saldutte was credible when he testified that
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appellant stated as he was getting out of his car, “ah, man, all I have is a
little bag of weed on me.” (Trial court opinion, 7/3/14 at 4.) Thus, we are
bound by this determination and therefore find that the court did not abuse
its discretion in denying suppression.
Accordingly, having found no merit in the issue on appeal, we will
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2014
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