Com. v. Whitehead, M. ( 2021 )

J-S09036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL WHITEHEAD :
:
Appellant : No. 254 EDA 2020
Appeal from the PCRA Order Entered December 13, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005247-2012
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 13, 2021
Michael Whitehead (“Whitehead”) appeals from the Order dismissing his
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously summarized the factual history of this case as
follows:
On March 7, 2012, at 1:20 p[.]m[.], Philadelphia Police
Officer Daniel McMonagle [(“Officer McMonagle”)] was on routine
patrol in a marked patrol car when he observed [Whitehead]
operating a 2002 silver Chevy Impala on Upsal Street[,] and
approaching the intersection of Belfield Street. The traffic light at
the intersection was a “steady red” when [Whitehead] made a
right turn onto Belfield Street without stopping or using a right
turn signal. Officer McMonagle stopped [Whitehead’s] vehicle
because [Whitehead] committed a motor vehicle violation.
As Officer McMonagle approached the driver’s side of the
vehicle, he observed [Whitehead] reaching across the vehicle[,]
as well as leaning forward and reaching toward his sides.
According to Officer McMonagle, [Whitehead] was “reaching
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around quite a bit” and was “reaching forward, down, and to his
side all the way across the vehicle.” Officer McMonagle described
[Whitehead’s] movements as being “more than just going to the
glove box to get paperwork.” Based upon the observed
movements, Officer McMonagle “thought that [Whitehead] was
possibly trying to conceal a weapon.”
Officer McMonagle ordered [Whitehead] to stop reaching
and to provide his driver’s license, registration, and proof of
insurance. In response, [Whitehead] stuttered and was fumbling
with paperwork. He produced a photocopy of a driver’s license
with the name Percey Whitehead[,] and the photo [was] blacked
out. [Whitehead] stated that he was the owner of the vehicle and
that he was driving home. [Whitehead] appeared to be nervous
and “slightly standoffish.”
During his interaction with [Whitehead], Officer McMonagle
stood behind the door jam[b] of the vehicle and leaned forward
toward the vehicle. He specifically testified that the door to the
vehicle was closed and he “wasn’t in the vehicle.” From that
viewpoint, he observed a clear, small Ziploc baggy—that he
immediately recognized as narcotics packaging—on the floor mat
at [Whitehead’s] feet. Based upon his observation of the narcotics
packaging, Officer McMonagle removed [Whitehead] from his car
and frisked him for weapons. [Officer McMonagle’s] partner
detained [Whitehead] at the back of [the] vehicle; [Whitehead]
was not handcuffed at this time.
Officer McMonagle went to the driver’s side of the vehicle to
retrieve the narcotics packaging. As he was recovering the
narcotics packaging, he observed that the plastic portion of the
gear shifter was popped up and was cockeyed, or sitting off []
center by a quarter to one[-]half of an inch. He thought that the
dislodged gear shifter was unusual[,] so he used his flashlight to
look into the gear shifter. When he did so, he immediately
recognized—based upon his familiarity with firearms—that there
was a firearm inside the gear shifter from his observation of the
top of the barrel or the slide of the firearm. He did not touch or
otherwise manipulate the gear shifter in order to make his
observations. Officer McMonagle did not recover the firearm, but
rather requested a search warrant for the vehicle. The narcotics
packaging and firearm were both recovered and placed on
property receipts; the firearm was recovered pursuant to a search
warrant obtained by Detective Linda Hughes.
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Officer McMonagle regard[ed] the area where [Whitehead]
was stopped as an “extremely high[-]crime area known for a lot
of shootings.” In his career as a police officer, Officer McMonagle
has made more than 100 arrests for illegal narcotics. He is
familiar with the type of narcotics packaging that he observed in
[Whitehead’s] vehicle. He also has extensive familiarity with
firearms. During cross-examination, [Whitehead’s] counsel
repeatedly asked Officer McMonagle whether he “leaned in the
vehicle” or “leaned in[to] the vehicle.” [Whitehead’s] counsel also
showed the officer an arrest memo, which states that, “Police
leaned into the vehicle to get a better view.” In response, Officer
McMonagle testified that he “leaned forward up to the vehicle,”
“leaned forward to the driver,” and “was not in the vehicle” prior
to observing the narcotics packaging. He further testified that he
could see the narcotics packaging from where he was standing
and without leaning into the car. Officer McMonagle testified that
his partner, … prepared the arrest memo based, in part, on
information received from Officer McMonagle, but that it was not
a verbatim account of his statements to [his partner].
Commonwealth v. Whitehead, 125 A.3d 452 (Pa. Super. 2015)
(unpublished memorandum at 1-3).
On June 6, 2012, Whitehead filed a Motion to suppress the evidence
seized from his vehicle, asserting, inter alia, that the first, warrantless, search
of his vehicle was unconstitutional, because it did not meet the “plain view”
exception to the warrant requirement, and that the subsequent search warrant
was “issued unlawfully” and “executed unlawfully.” On December 7, 2012,
the suppression court conducted a suppression hearing, and denied
Whitehead’s Motion.
On March 27, 2014, after a bench trial, Whitehead was found guilty of
possession of a controlled substance, possession of firearm prohibited,
firearms not to be carried without a license, and carrying firearms on public
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streets in Philadelphia.1 The trial court subsequently sentenced Whitehead to
an aggregate prison term of four to eight years.
On July 17, 2015, this Court affirmed Whitehead’s judgment of
sentence. See Whitehead, 125 A.3d 452 (unpublished memorandum).
On September 18, 2015, Whitehead filed a timely, pro se, PCRA Petition.
On January 11, 2017, Whitehead filed a counseled Amended PCRA Petition,
alleging, inter alia, that appellate counsel rendered ineffective assistance of
counsel by failing to inform Whitehead of this Court’s decision, and thus
depriving Whitehead of seeking allocator with the Pennsylvania Supreme
Court. On November 17, 2017, the PCRA court reinstated Whitehead’s
appellate rights, nunc pro tunc. Whitehead subsequently filed a Petition for
allowance of appeal, nunc pro tunc, with the Pennsylvania Supreme Court,
which was denied on May 8, 2018. See Commonwealth v. Whitehead, 185
A.3d 280 (Pa. 2018).
On June 7, 2018, Whitehead filed the instant, pro se, PCRA Petition. The
PCRA court appointed counsel, and, on January 11, 2019, PCRA counsel filed
an Amended PCRA Petition. In the Amended Petition, Whitehead alleged that
Whitehead’s trial counsel rendered ineffective assistance of counsel by failing
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1See 35 P.S. § 780-113(a)(16); 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1),
6108.
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to file a “Franks”2 motion challenging the veracity of Officer McMonagle’s
statements at the suppression hearing.
On October 4, 2019, the PCRA court filed a Pa.R.Crim.P. 907 Notice of
Intent to Dismiss Whitehead’s Petition without a hearing. On December 13,
2019, the PCRA court dismissed Whitehead’s PCRA Petition.
Whitehead filed a timely Notice of Appeal3 and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of errors complained of on appeal.
Whitehead now presents the following claim for our review:
Did the PCRA court err by dismissing the [PCRA] [P]etition without
an evidentiary hearing[,] as there was a material issue of fact as
to whether [] Officer McMonagle actually saw a gun in the gear-
shift-box of [Whitehead]’s car[,] as that fact was in an [A]ffidavit
of probable [sic] to search the car which lead [sic] to the gun’s
recovery?
Brief for Appellant at 2 (quotation marks omitted).
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2In Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme
Court held that,
[w]here the defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the
warrant affidavit, and if the allegedly false statement is necessary
to the findings of probable cause, the Fourth Amendment requires
that a hearing be held at the defendant’s request.
Franks, 438 U.S. at 154.
3 Because the 30th day following the imposition of sentence was Sunday,
January 12, 2019, Whitehead’s Notice of Appeal was timely filed. See 1
Pa.C.S.A. § 1908 (providing that “[w]henever the last day of any such period
shall fall on Saturday or Sunday … such day shall be omitted from the
computation.”).
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We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of the record. We will not disturb a PCRA court’s ruling
if it is supported by evidence of record and is free of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Whitehead claims that the PCRA court erred in dismissing his PCRA
Petition without an evidentiary hearing because his trial counsel rendered
ineffective assistance by failing to file and litigate a “Franks” motion. Brief
for Appellant at 5. Whitehead argues that Officer McMonagle did not truly see
a firearm in the gear-shift-box, because if he had, he would have recovered
the gun during his initial vehicle search instead of waiting to secure a search
warrant. Id. at 5-7. Further, Whitehead asserts that his trial counsel should
have challenged Officer McMonagle’s observations by entering photographs of
the gear shifter into evidence. Id.
Counsel is presumed to be effective, and “the burden of demonstrating
ineffectiveness rests on [the] appellant.” Commonwealth v. Rivera, 10
A.3d 1276, 1279 (Pa. Super. 2010).
To satisfy this burden, an 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. Failure to satisfy any prong
of the test will result in rejection of the appellant’s ineffective
assistance of counsel claim.
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Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal
citations omitted).
Generally, “[t]he failure to file a suppression motion under some
circumstances may be evidence of ineffective assistance of counsel.”
Commonwealth v. Metzger, 441 A.2d 1225, 1228 (Pa. 1981). “However,
if the grounds underpinning that motion are without merit, counsel will not be
deemed ineffective for failing to so move.” Id. “[T]he defendant must
establish that there was no reasonable basis for not pursuing the suppression
claim and that if the evidence had been suppressed, there is a reasonable
probability the verdict would have been more favorable.” Commonwealth
v. Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016) (citation omitted).
Whitehead has failed to develop this claim for our review. Whitehead’s
appellate brief contains only boilerplate citations of this Court’s standard of
review. Indeed, Whitehead’s brief is devoid of any citations to the record or
legal precedent supporting his position. See Pa.R.A.P. 2119(a) (providing
that an appellant’s argument shall include “such discussion and citation of
authorities as are deemed pertinent.”); Commonwealth v. Paddy, 14 A.3d
431, 443 (Pa. 2011) (providing that “boilerplate allegations and bald
assertions … cannot satisfy a petitioner’s burden to prove that counsel was
ineffective.”); see also Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009) (stating that “where an appellate brief fails to provide any discussion of
a claim with citation to relevant authority[,] or fails to develop the issue in
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any other meaningful fashion capable of review, that claim is waived.”).
Accordingly, Whitehead’s claim is waived.
Even if Whitehead had preserved this claim for our review, the PCRA
court addressed it as follows:
Here, [Whitehead]’s claim … is without merit because police
had a sufficient legal basis to conduct a limited search of the
vehicle’s passenger compartment. At the suppression hearing,
Officer McMonagle testified that [Whitehead]’s vehicle was
stopped in a high[-]crime area. Once stopped, Officer McMonagle
observed [Whitehead] making excessive movements inside the
vehicle, “more than just going to the glove box to get paperwork.”
Officer McMonagle further observed that [Whitehead] appeared
nervous and provided Officer McMonagle with an altered driver’s
license.
[Whitehead]’s claim that trial counsel acted without a
reasonable basis by failing to introduce photos of the interior of
the vehicle in support of [a] “Franks” motion to impeach the
veracity of the facts supporting the search warrant [also fails].
Officer McMonagle testified that while he stood outside [of] the
vehicle, he looked inside and observed a small, clear plastic
baggie consistent with narcotics packaging on the floor
mat at [Whitehead]’s feet. Officer McMonagle’s observation of
the narcotics packing was proper under the plain view doctrine.
During the suppression hearing, [Whitehead]’s trial counsel
argued that Officer McMonagle was impeached by statements in
the arrest memo prepared by another officer that stated “police
leaned into the vehicle to get a better view.” Officer McMonagle
did not adopt the statements in the arrest memo. He testified
that the arrest memo was a summary of his statements and not a
verbatim transcription. When Officer McMonagle went to retrieve
the narcotics packaging, he had a clear, close view of an off-
centered, unusual and “popped-up” gear box. He then used his
flashlight to look into the gear shifter, and immediately recognized
the top of a gun barrel—or slide—of a firearm. The suppression
court determined that Officer McMonagle testified credibly. The
photos attached to [Whitehead]’s Amended [PCRA]
[P]etition show a gear shifter with the plastic portion
missing, which is consistent with Officer[] McMonagle’s
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testimony. [Whitehead]’s claim is meritless because Officer
McMonagle was conducting a constitutionally permissible search
at the time he observed the popped[-]up gear shifter.
Accordingly, trial counsel had a reasonable basis for not pursuing
a meritless “Franks” motion.
Finally, [Whitehead] cannot establish actual prejudice from
trial counsel’s failure to litigate a “Franks” motion given the
overwhelming evidence that supports the suppression court’s
denial [of] his [M]otion to suppress including, (1) police initially
had reasonable suspicion to conduct a limited warrantless search
of defendant’s vehicle for weapons[;] (2) the arrest memo that
supported the search warrant was not a verbatim recitation of
Officer McMonagle’s observations[;] (3) Officer McMonagle’s
observation of the firearm was made while legally recovering the
narcotics packaging from the floor mat of the vehicle[;] and (4)
the suppression court credited the observations of Officer
McMonagle based upon the suppression court’s observation of his
demeanor, manner of testifying[,] and corroborating evidence.
Even if [Whitehead’s] trial counsel introduced photos of the
interior of [Whitehead]’s vehicle, the outcome of the suppression
hearing would not have changed. Indeed, police waited to
obtain a search warrant before retrieving the firearm even
though they could have conducted a warrantless search of
[Whitehead]’s vehicle. For all of these reasons, [Whitehead]’s
claim of ineffectiveness is without merit.
PCRA Court Opinion, 6/12/20, at 6-8 (emphasis added; some citations and
capitalization omitted).
Our review of the record confirms the PCRA court’s analysis and
conclusion. See N.T. (Suppression Hearing), 12/7/12, at 19-20 (wherein
Officer McMonagle testified that the gear shifter was altered and he could see
the barrel of a firearm hidden underneath). Moreover, as the PCRA court
concluded, the photographs attached to Whitehead’s Amended PCRA Petition
and appellate brief depict an altered gear-shifter, which supports Officer
McMonagle’s testimony at the suppression hearing. See PCRA Court Opinion,
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6/12/20, at 7-8; see also Amended PCRA Petition, 1/11/19, at 5-7
(unnumbered); Brief for Appellant, Appendix C. Thus, Whitehead’s trial
counsel had a reasonable basis in not filing a Franks motion; Whitehead has
not demonstrated that he suffered prejudice as a result; and his claim is
without arguable merit. See Holt, supra; see also Watley, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2021
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