Com. v. Cole, J. ( 2019 )

J-S68027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES COLE :
:
Appellant : No. 775 WDA 2019
Appeal from the PCRA Order Entered April 25, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013244-2013
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 20, 2019
James Cole appeals from the trial court’s order, entered in the Court of
Common Pleas of Allegheny County, denying his petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
In a prior appeal, our Court summarized the underlying facts of the case
as gleaned from the trial court:
On September 12, 2013, McKeesport Police Officer Steve
Kondrosky was on patrol when he observed a blue Hyundai
travelling eastbound on East Fifth Avenue. The vehicle was
travelling in a prohibited driving lane and made an illegal left turn
across three lanes of traffic onto the Duquesne McKeesport Bridge
without using a signal. Officer Kondrosky pursued the vehicle,
which finally pulled over after approximately one[-]half of a mile,
on Route 837 and Cochran Street in Duquesne.
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* Retired Senior Judge assigned to the Superior Court.
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Officer Kondrosky approached the car’s driver, subsequently
identified as Cole, and requested his license, insurance and
registration information. Cole provided the officer with his
license, but indicated that he was not the car’s owner and could
not find the insurance or registration. Officer Kondrosky advised
Cole that the documents could usually be found either in the
center console or the glove compartment. However, Cole
responded that he did not want to go in the glove box. Officer
Kondrosky testified that Cole appeared nervous. Officer
Kondrosky told Cole not to make any sudden movements while he
waited for the dispatch center to respond with information
regarding Cole’s license.
While Officer Kondrosky waited to hear from dispatch, he
observed Cole lean over to the passenger-side of the vehicle,
nearly disappearing from his line of sight. Officer Kondrosky told
Cole to sit up and stop reaching around and Cole complied. Due
to Cole’s movement and behavior, Officer Kondrosky called for
backup. Lieutenant Connor Craig, a K-9 officer, Sergeant Mark
Steele and Detective Vandelli Summers responded to the scene.
As they arrived, Officer Kondrosky again approached Cole’s
vehicle, at which point Cole again began to reach toward the
passenger-side floor. Officer Kondrosky yelled to Cole to sit up
and stop reaching and proceeded to unholster his weapon, as he
was not sure whether Cole was reaching for a gun. At that point
the three backup officers had arrived, and they all approached the
vehicle together.
Officer Kondrosky asked Cole why he had disobeyed his order not
to reach around in the vehicle, at which time he detected an odor
of marijuana and informed Cole of what he smelled. Officer
Kondrosky then observed that Cole was sweating profusely and
was unable to complete a sentence because he was so shaken up.
As a result of Cole’s actions, movements and demeanor, Officer
Kondrosky asked Cole to exit the vehicle. Cole replied, “for what?”
and placed his foot on the brake as he reached for the center
gearshift. Officer Kondrosky then pointed his weapon at Cole and
informed him that he was not free to leave. After a few more
demands by Officer Kondrosky, Cole exited the vehicle. Cole was
placed at the rear of the vehicle. Officer Kondrosky informed
Lieutenant Craig of Cole’s nervousness and movement while in the
vehicle. As a result, Lieutenant Craig went to the passenger[-
]side of the vehicle and, through the window, observed what
appeared to be the butt end of a firearm protruding from the
passenger seat floorboard. He stated “gun” to the other officers,
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at which time Cole fled across Route 837 as Sergeant Steele
grasped the back of his shirt. Lieutenant Craig deployed his
[T]aser on Cole’s back, after which Cole was taken into custody.
Lieutenant Craig recovered the firearm and another officer located
a baggie containing a small amount of marijuana in the vehicle.
Commonwealth v. Cole, 1526 WDA 2015 at 1-4 (Pa. Super. filed Nov. 16,
2016) (unpublished memorandum).
Cole filed a pretrial motion to suppress1 claiming, in part, that the stop
of his vehicle and initial detention were unlawful where “McKeesport Police
exceeded or acted beyond their jurisdictional power and violated the
Pennsylvania Statewide Municipal Police Jurisdiction Act (MPJA).” Omnibus
Pre[]trial Motion, 1/13/14, at ¶ 4. After a suppression hearing, the trial court
denied the motion and a non-jury trial ensued, after which the trial court found
Cole guilty of various firearm, drug and traffic offenses.2 On September 2,
2015, Cole was sentenced to a term of three to six years’ imprisonment on
the possession of firearm (prohibited) charge and four years of probation on
the persons not to possess a firearm charge; no further penalty was imposed
on the remaining counts. Cole filed a timely notice of appeal. Our Court
affirmed his judgment of sentence. See Cole, supra. Cole’s petition for
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1Cole also filed a motion to sever as to his possession of firearm (prohibited)
charge, which was denied.
2 Cole was convicted of the following: possession of firearm (prohibited), 18
Pa.C.S. § 6105(a)(1); firearms not to be carried without a license, 18 Pa.C.S.
§ 6106(a)(1); resisting arrest, 18 Pa.C.S. § 5104; possession of marijuana,
35 P.S. § 780-113(a)(31); carrying a loaded weapon, 18 Pa.C.S. § 6106.1(a);
and improper signal, 75 Pa.C.S. § 3334(b). The Commonwealth dismissed
the charge of use/possession of drug paraphernalia and Cole was found not
guilty with regard to the charge of obedience of traffic-control devices.
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allowance of appeal to the Pennsylvania Supreme Court was denied on May
24, 2017.
On June 15, 2017, Cole filed a pro se PCRA petition alleging, in part,
that counsel was ineffective for failing to raise on direct appeal the issue
regarding whether Officer Kondrosky had jurisdiction to pursue him under the
MPJA. The trial court appointed PCRA counsel, Brian McDermott, Esquire, who
filed an amended PCRA petition including the claim that “counsel was
ineffective for failing to argue [in prior counsel’s direct appeal to the Superior
Court of Pennsylvania] that Officer Kondrosky’s pursuit of [Cole] was not ‘Hot
and Fresh[.]’” Amended PCRA Petition, 2/13/18, at ¶ 37. Following a hearing,
the PCRA court denied Cole’s amended petition on April 25, 2019.3 This timely
appeal follows.
On appeal, Cole presents the following issue for our consideration: “Did
the trial court err when it denied [Cole’s] [a]mended PCRA [petition] to
overturn his conviction and suppress all evidence as fruit of the poisonous tree
[as a result of counsel’s ineffectiveness]?” Appellant’s Brief, at 4.
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3 The standard of review of an order denying a PCRA petition is whether that
determination is supported by the evidence of record and is free of legal error.
The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record. Commonwealth v. Johnston, 42 A.3d
1120, 1126 (Pa. Super. 2012).
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Cole argues that since Officer Kondrosky failed to immediately activate
his overhead lights and sirens when he stopped him, the officer’s pursuit was
not “hot and fresh” for purposes of the MPJA.4 We disagree.
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4In his amended petition, Cole supports his ineffectiveness claim by pointing
out the following:
 Officer Kondrosky testified that he could not immediately
turn and follow the vehicle after he observed the traffic
violation due to traffic. He waited approximately five to
ten seconds before he was able to follow the vehicle;
 Once he got to the top of the ramp he testified the vehicle
was approximately 300 yards in front of him. The Officer
was able to catch up to the vehicle near the halfway
point of the bridge at which point he activated his
overhead lights and sirens; [t]he Officer testified
Petitioner may have been out of the officer’s
jurisdiction prior to activation of lights and sirens;
 Petitioner therefore argues that the chase was not
immediate as required under the MPJA since the officer
waited five to ten seconds before beginning to pursue
him;
 Petitioner argues that since police officers on patrol have the
right to stop all traffic to pursue a suspect and that he could
have done so;
 Petitioner submits that since the officer failed to
immediately activate his overhead lights and sirens
that the pursuit was not hot and fresh for purposes of
the MPJA;
 Additionally, it was not immediate because the
overhead lights and sirens were not activated until
half[]way across the bridge, which was [in] another
jurisdiction[.]
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The MPJA confers jurisdiction on officers making arrests outside of their
primary jurisdiction. See generally 42 Pa.C.S. § 8951-8955. That statute
specifies six exceptions permitting officers to act outside their primary
jurisdiction. One of those exceptions, set forth at section 8953(a)(2) of the
MPJA, permits an officer to enforce the laws of this Commonwealth beyond
the territorial limits of his primary jurisdiction “[w]here [he] is in hot pursuit
of any person for any offense which was committed, or which he has probable
cause to believe was committed, within his primary jurisdiction and for which
offense the officer continues in fresh pursuit of the person after the
commission of the offense.” 42 Pa.C.S. § 8953(a)(2) (emphasis added). The
“hot and fresh pursuit” requirement under the MPJA necessitates a finding that
the officer met the immediate, continuous, and uninterrupted standard
previously applicable to the Intrastate Hot Pursuit Act (IHPA),5 as well as the
additional requirement of some sort of chase. Commonwealth v. McPeak,
708 A.2d 1263, 1266 (Pa. Super. 1998).
Cole claims that counsel had no strategic reason for failing to argue, at
his request, the “hot and fresh pursuit” issue on direct appeal, and that he
was prejudiced because our Court would have reversed the suppression order
and his conviction.
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Amended Post Conviction Relief Act Petition, 2/13/18, at 9-10 (emphasis
added).
5 The IHPA, which was repealed and replaced by the MPJA, required police to
“continue in pursuit.” McPeak, supra at 1265.
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With respect to claims of ineffective assistance of counsel, we begin with
the presumption that counsel is effective. Commonwealth v. Spotz, 47 A.3d
63, 76 (Pa. 2012). To prevail on an ineffectiveness claim, a petitioner must
plead and prove, by a preponderance of the evidence, three elements: (1)
the underlying legal claim has arguable merit; (2) counsel had no reasonable
basis for his or her action or inaction; and (3) the petitioner suffered prejudice
because of counsel’s action or inaction. Id. (citation omitted).
Our Supreme Court has noted that the MPJA must be construed liberally
to achieve its purposes, one of which is to provide police with the authority to
act outside their jurisdictions under the circumstances enumerated in that Act.
Commonwealth v. Chernosky, 874 A.2d 123, 129 (Pa. Super. 2005), citing
Commonwealth v. Lehman, 870 A.2d 818, 820 (Pa. 2005). In
Commonwealth v. Hilliar, 943 A.2d 984 (Pa. Super. 2008), our Court
reiterated that:
One of the principal purposes of the MPJA is to promote public
safety while placing a general limitation on extraterritorial police
patrols. It is in the interest of promoting public safety, therefore,
that the MPJA exceptions contemplate and condone extra-
territorial activity in response to specifically identified criminal
behavior that occur[s] within the primary jurisdiction of the police.
Id. at 991 (citation omitted); see also Lehman, 870 A.2d at 820 (Act was
not intended to “erect impenetrable jurisdictional walls benefiting only
criminals hidden in their shadows.”).
At the time Officer Kondrosky stopped Cole on Route 837 and Cochran
Street in Duquesne, he had been following Cole for more than one-half mile
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after witnessing him commit traffic violations in McKeesport, specifically
making an illegal left turn without using a signal. Witnessing the traffic
violations gave Officer Kondrosky probable cause to stop Cole. See
Commonwealth v. Brown, 64 A.3d 1101, 1106 (Pa. Super. 2013) (where
officer testified defendant turned vehicle from one street to another without
using signal lamps, officer “unquestionably possessed facts to warrant belief
by any reasonable person that [defendant] violated the [V]ehicle [C]ode”).
The stop occurred after the cars crossed the Duquesne-McKeesport Bridge
(Bridge) as the officer had “probably” just crossed over from his jurisdiction
(McKeesport) into Duquesne.6 N.T. Suppression Hearing, 2/4/14, at 67
(defense attorney indicating that stop “probably” occurred outside
jurisdiction); N.T. PCRA Hearing, 4/23/19, at 8 (trial counsel stating that
defendant was “probably arrested right outside McKeesport”). Finally, Officer
Kondrosky testified that Cole took almost one-half a mile to stop his vehicle
after the officer activated his overhead lights and audible siren. Id. at 6.
Based upon these facts, we conclude that Officer Kondrosky’s pursuit of
Cole was an “immediate, continuous, and uninterrupted” chase. McPeak,
supra. The fact that the officer took a mere five to ten seconds to turn his
vehicle around to follow Cole for more than half a mile and that he did not
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6The Bridge connects Route 837 in Duquesne and Route 148 in McKeesport.
See https://en.wikipedia.org/wiki/McKeesport-Duquesne_Bridge (last visited
12/4/19).
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activate his siren and lights7 until he had “probably” just crossed the
jurisdictional line does not vitiate the officer’s “hot and fresh” pursuit of Cole
under section 8953(a)(2). To find merit in Cole’s argument would require a
hyper-technical reading of the MPJA and contravene our Court’s liberal
construction of the statute to effectuate its purpose. Hilliar, supra. See
also N.T. Suppression Hearing, 2/4/14, at 69 (trial court acknowledges “the
more prudent thing was [to] let [the officer] get over the bridge to pull him
over so there is a place to pull him over”).8
Because Cole’s underlying claim has no arguable merit, counsel cannot
be deemed ineffective. Spotz, supra. Accordingly, the trial court properly
denied Cole’s petition. Johnston, supra.
Order affirmed.
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7 In fact, at the PCRA hearing, Officer Kondrosky testified that he may have
also turned on his overhead lights prior to crossing the bridge in order to get
in front of oncoming traffic to pursue Cole. N.T. PCRA Hearing, 4/23/19, at
15-16. If in fact this is true, then the officer’s lights were turned on within his
jurisdiction (McKeesport).
8We note that even if Officer Kondrosky technically was not in hot and fresh
pursuit of Cole, as it is defined under section 8953(a)(2), suppression would
not have been the proper remedy. See Hilliar, supra (minor infraction of
MPJA does not warrant suppression of inculpatory evidence; exclusionary rule
does not apply in such cases).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2019
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