Com. v. Copenhaver, V. ( 2021 )

J-S20042-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VICTOR LEE COPENHAVER :
:
Appellant : No. 128 MDA 2021
Appeal from the PCRA Order Entered December 21, 2020
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000005-2019,
CP-01-CR-0000007-2019
BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: SEPTEMBER 9, 2021
Victor Lee Copenhaver (“Copenhaver”) appeals from the Order granting
in part and denying in part his Petition for relief filed pursuant to the Post
Conviction Relief Act (“PCRA”).1 We affirm.
On December 21, 2018, Officer Shannon Hilliard (“Officer Hilliard”), of
the Gettysburg Borough Police Department, was on patrol when he observed
a black Jeep Cherokee with a suspicious-looking license plate. When Officer
Hilliard ran the license plate number, he learned that the plate was registered
to a Cougar camper, not the Jeep Cherokee. Officer Hilliard activated his
emergency lights to initiate a traffic stop, but the Jeep accelerated away.
Officer Hilliard gave chase in his vehicle. During the pursuit, Officer Hilliard’s
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1 42 Pa.C.S.A. §§ 9541-9546.
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vehicle was damaged, and he was forced to pull over and stop his pursuit of
the Jeep. Officer Hilliard contacted his dispatch, informed them of the pursuit,
and gave a description of the Jeep and the license plate number.
Shortly thereafter, Copenhaver visited the home of Joseph Rose
(“Rose”), who had recently sold the Jeep to Copenhaver. Copenhaver
informed Rose that he had just eluded police. Copenhaver spoke with Rose
for a few minutes and departed in the Jeep. Less than an hour later, Officer
Joshua Goodling (“Officer Goodling”), of the Cumberland Township Police
Department, spotted the Jeep, which he had been looking for based on Officer
Hilliard’s report to dispatch, traveling at a high rate of speed. Officer Goodling
activated his lights and sirens, and pursued the Jeep. During the course of
the pursuit, Officer Goodling recognized Copenhaver as the driver of the Jeep.
The pursuit ended when the Jeep made a sharp turn into a ditch, at which
point Officer Goodling was able to apprehend Copenhaver. Officer Hilliard
subsequently arrived on scene, took custody of Copenhaver, and transported
him to Gettysburg Hospital for chemical blood testing. The test results
revealed that Copenhaver had cocaine and a metabolite of cocaine in his
system.
Copenhaver was subsequently charged with two sets of charges, one
set of charges for each separate chase, at docket number CP-01-CR-000005-
2019 and docket number CP-01-CR-000007-2019, respectively. At each
docket number, Copenhaver was charged with one count of driving under the
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influence (“DUI”),2 and related offenses. The charges were ultimately
consolidated for trial, after which a jury convicted Copenhaver of several
counts across both docket numbers, including one count of DUI at each docket
number. On July 30, 2019, the trial court sentenced Copenhaver to an
aggregate term of 5 to 11 years in prison. Copenhaver filed a timely post-
sentence Motion, which the trial court denied.
On October 17, 2019, Copenhaver filed a direct appeal from his
judgments of sentence. Because Copenhaver’s single Notice of Appeal listed
both docket numbers, this Court issued a Rule to Show Cause as to why his
appeal should not be quashed in light of our Supreme Court’s decision in
Commonwealth v. Walker, 185 A.3d 969, 976-77 (Pa. 2018) (holding that
separate notices of appeal are required when an appellant appeals from
convictions spanning multiple docket numbers). Copenhaver’s counsel, Paul
Royer, Esquire (“Attorney Royer”), filed a Response to the Rule to Show
Cause. Following Attorney Royer’s Response, this Court discharged the Rule
to Show Cause on January 21, 2020. Attorney Royer subsequently filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), and a Petition
to withdraw from representation. On May 1, 2020, this Court denied Attorney
Royer’s Petition to withdraw, as Attorney Royer’s Anders Brief failed to satisfy
the requirements set forth in Commonwealth v. Santiago, 978 A.2d 349____________________________________________
2 75 Pa.C.S.A. § 3802(d)(1)(ii).
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(Pa. 2009).3 Subsequently, on June 9, 2020, this Court issued an Order
dismissing Copenhaver’s appeal for failure to file a brief.
On August 10, 2020, Copenhaver, pro se, filed the instant PCRA Petition.
The PCRA court appointed Thomas Nell, Esquire (“Attorney Nell”), as PCRA
counsel. On November 2, 2020, Attorney Nell filed an Amended PCRA Petition,
wherein Copenhaver claimed a variety of allegations related to Attorney
Royer’s ineffective assistance of counsel. The PCRA court held a hearing on
December 14, 2020. On December 18, 2020, the PCRA court entered an Order
granting Copenhaver relief on his claim of ineffective assistance of counsel.
Specifically, the PCRA court concluded that Attorney Royer’s failure to file a
conforming Anders Brief or file a brief on the substantive merits of
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3 This Court noted that Attorney Royer’s Anders brief failed to refer to
anything in the record that counsel believed arguably supported Copenhaver’s
appeal, and did not state counsel’s reasons for concluding that the appeal was
frivolous beyond an undeveloped assertion that contained no citation. Order,
5/1/20, at n.1.
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Copenhaver’s appeal constituted ineffective assistance of counsel.4 As a
result, the PCRA court reinstated Copenhaver’s direct appeal rights, nunc pro
tunc. Further, the PCRA court directed Attorney Nell to either file an appellate
brief or an Anders brief, because the trial court had already issued a Pa.R.A.P.
1925(a) Opinion addressing the issues that Copenhaver had previously raised
on direct appeal. The PCRA court also noted that “there is no merit to
[Copenhaver]’s claim that Attorney Royer failed to raise meritorious issues on
appeal.” PCRA Court Order, 12/18/20, at 4. Copenhaver filed a timely Notice
of Appeal, and a court-ordered Rule 1925(b) Concise Statement of matters
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4 The PCRA court’s Order also imposed a new sentence on his convictions for
DUI, in light of our Supreme Court’s holding in Commonwealth v.
Copenhaver, 229 A.3d 242 (Pa. 2020). There, Copenhaver appealed a 2017
conviction for DUI and related offenses, following a traffic stop by an Adams
County Sheriff’s Deputy, due to an expired registration. Our Supreme Court
concluded that an expired registration sticker, alone, did not constitute a
breach of the peace necessary for a sheriff’s deputy to invoke his common law
authority to enforce violations of the Vehicle Code. Copenhaver, 229 A.3d
at 246-47. This Court subsequently vacated Copenhaver’s judgment of
sentence for the 2017 DUI conviction. Commonwealth v. Copenhaver, 238
A.3d 509 (Pa. Super. 2020). Accordingly, the PCRA court imposed a new
sentence for Copenhaver’s instant DUI convictions, as they were now graded
as his first and second offense, respectively. PCRA Court Order, 12/18/20, at
1-2.
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complained of on appeal.5
Copenhaver raises the following question for our review:
Did the [PCRA c]ourt error [sic] in determining that there was no
merit in Copenhaver’s assertion that his attorney was ineffective
in not filing an appeal on the issue of double jeopardy[,] when
both cases were based on the same facts[;] Copenhaver asked his
attorney to file an appeal on the issue of double jeopardy[;] and
Copenhaver’s attorney did not file the appeal on the double
jeopardy issue?
Brief for Appellant at 6.
Copenhaver argues that his trial counsel was ineffective in failing to
appeal the trial court’s determination that his two DUI arrests were separate
criminal incidents, rather than one continuing criminal incident. Id. at 14-17.
Copenhaver asserts that, because Officer Hilliard “coordinated the
continuation of the chase by notifying dispatch … and contacting the 911
center[,]” and because Officer Hilliard took Copenhaver for blood testing after
Officer Goodling had arrested him, the two chases should have been
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5 Copenhaver’s Notice of Appeal contained both trial court docket numbers.
On April 1, 2021, this Court issued a Rule to Show Cause as to why the instant
appeal should not be quashed pursuant to Walker. On the same day,
Copenhaver filed a Response, indicating that he had filed two separate Notices
of Appeal, one at each docket number, with both Notices of Appeal listing both
docket numbers. See Response, 4/1/21, at 1-2. Copenhaver attached to his
Response copies of two separately-filed Notices of Appeal, with the
appropriate docket number circled on each copy. See id. at Exhibit 5. This
Court has concluded that such filings do not violate the rule stated in Walker.
See Commonwealth v. Johnson, 236 A.3d 1141, 1148 (Pa. Super. 2020)
(stating that four separate notices of appeal were compliant with Walker
where each notice of appeal included all four trial court docket numbers, and
that “each notice of appeal list[ing] all four docket numbers does not invalidate
his notices of appeal”).
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considered one ongoing DUI incident. Id. at 16-17. Copenhaver also claims
that two separate prosecutions for DUI were inappropriate, because there was
only one blood sample taken, after the second chase. Id. at 16. Finally,
Copenhaver points out that Attorney Royer’s failure to file a requested appeal
including this issue constituted ineffective assistance of counsel. Id. at 15.
We review an order [addressing] 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 record. We will not disturb a PCRA court’s ruling
if it is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court’s decision on any grounds if
the record supports it. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford no
such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
To prevail on a claim of ineffective assistance of counsel under the PCRA,
a petitioner must plead and prove, by a preponderance of the evidence, that
counsel’s ineffectiveness “so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken place.” 42
Pa.C.S.A. § 9543(a)(2)(ii). Specifically,
[t]o be entitled to relief on an ineffectiveness claim, a PCRA
petitioner must establish: (1) the underlying claim has arguable
merit; (2) no reasonable basis existed for counsel’s action or
failure to act; and (3) he suffered prejudice as a result of counsel’s
error, with prejudice measured by whether there is a reasonable
probability the result of the proceeding would have been different.
Commonwealth v. Chmiel, ... 30 A.3d 1111, 1127 (Pa. 2011)
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(employing ineffective assistance of counsel test from
Commonwealth v. Pierce, ... 527 A.2d 973, 975-76 (Pa.
1987)). Counsel is presumed to have rendered effective
assistance. Additionally, counsel cannot be deemed ineffective for
failing to raise a meritless claim. Finally, because a PCRA
petitioner must establish all the Pierce prongs to be entitled to
relief, we are not required to analyze the elements of an
ineffectiveness claim in any specific order; thus, if a claim fails
under any required element, we may dismiss the claim on that
basis.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (footnote and
some citations omitted).
In this case, the PCRA court addressed Copenhaver’s argument that his
counsel had provided ineffective assistance by failing to raise a double
jeopardy argument as follows:
The double jeopardy provisions [of] the United States and
Pennsylvania Constitutions prohibit multiple prosecutions for the
same offense. Commonwealth v. States, 891 A.2d 737, 741
(Pa. Super. 2005). For the double jeopardy protections under the
Pennsylvania Constitution to apply, a defendant must be charged
with criminal conduct from the same criminal episode or conduct
as a previous prosecution. Commonwealth v. Schmidt, 919
A.2d 241, 245 (Pa. Super. 2007). In determining whether charges
are logically related to each other, the court should look to see if
there is a substantial duplication of factual or legal issues
presented. Id. at 246[.]
Prior to trial [Copenhaver]’s former counsel, [] Sean Mott,
[Esquire,] moved to dismiss duplicative counts. On April 15,
2019, th[e trial c]ourt denied said [M]otion and articulated that
these were two separate and distinct criminal incidents, involving
two separate police departments and two distinct police chases.
The same logic holds true on appeal.
The factual history shows that [Copenhaver] engaged in two
separate and distinct criminal incidents. [Copenhaver]
successfully evaded capture by Officer Hilliard after fleeing from
Officer Hilliard’s pursuit and even stopped and exited his vehicle
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when [Copenhaver] visited [] Rose. An hour later, [Copenhaver]
then led Officer Goodling on a second police chase before he was
eventually apprehended. Both incidents took place over an hour
apart from one another, involved ample amount [sic] of time for
[Copenhaver] to leave his vehicle, visit [] Rose and to then return
to the vehicle before being pursued for a second time. The
incidents involved multiple police departments across multiple
jurisdictions.
[Copenhaver] seems to suggest his protection from “double
jeopardy” rights were violated as he was charged for DUI for the
first chase and the second offense DUI for the second chase, all
occurring on one night. Such a claim is meritless. Consider the
situation where a defendant is arrested for DUI without incident.
Following arrest, that defendant is released and an hour later is
seen driving again. The defendant is arrested and charged for a
second offense DUI on the same night. There is no double
jeopardy issue if defendant is tried for both DUI offenses. The
circumstances here are no different except instead of an arrest
after the first chase, there was a pause in [Copenhaver]’s driving
when he visited a friend’s house before driving the second time.
[Copenhaver] was charged, tried and convicted of [DUI] two times
on a single night. There is no double jeopardy issue.
As such, it was and remains clear to th[e PCRA c]ourt that
[Copenhaver’s] claim of double jeopardy has no merit. Attorney
Royer stated at [Copenhaver]’s PCRA [h]earing that he did not
raise the double jeopardy issue on appeal because he believed it
to be meritless. As [a]ppellate [a]uthority is clear, Attorney Royer
cannot be held ineffective for failing to raise the double jeopardy
issue as it did not have merit. Because it is clear to th[e PCRA
c]ourt that the issue of double jeopardy is meritless, and Attorney
Royer agreed with this reasoning by not raising it on appeal, the
first prong of the ineffective counsel test has not been met.
PCRA Court Opinion, 2/3/21, at 9-10.
We affirm on the basis of the PCRA court’s Opinion, as set forth above,
with the following addendum. The record confirms that Copenhaver led
officers on two separate police chases: the initial chase with Officer Hilliard,
in which Copenhaver eluded capture after Officer Hilliard’s vehicle was
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damaged; and a second chase with Officer Goodling, approximately one hour
later, which ended after Copenhaver’s vehicle became disabled. See N.T.,
5/30/19, at 32-46 (wherein Officer Hilliard describes the first chase); id. at
82-110 (wherein Officer Goodling describes the second chase and
Copenhaver’s apprehension). The record further reflects that, in between the
two separate chases, Copenhaver visited Rose at his residence, where he
briefly discussed the first chase with Rose before departing. Id. at 67-70
(wherein Rose describes his conversation with Copenhaver). Cf.
Commonwealth v. Bezick, 207 A.3d 400 (Pa. Super. 2019) (holding that
appellant’s double jeopardy rights were violated when she was convicted of
multiple counts of DUI after she struck another vehicle, immediately fled the
scene, and was pulled over and arrested about 1.5 miles away from the
accident scene); cf. Commonwealth v. Kimmel, 125 A.3d 1272 (Pa. Super.
2016) (stating that the appellant committed separate criminal acts when
police pursued and stopped the appellant, the appellant reentered his truck
and drove away using a second set of keys, and police stopped appellant a
second time and arrested him).
Accordingly, because the trial court properly found no arguable merit to
Copenhaver’s double jeopardy claim, Attorney Royer was not ineffective in
failing to challenge that determination on direct appeal. See Treiber, supra.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/09/2021
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