Com. v. Milinski, B.

J-S40034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BILL MARTIN MILINSKI, : No. 3838 EDA 2016
:
Appellant :
Appeal from the Order November 17,.2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001044-2013 and
CP-45-CR-0002096-2013
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E. *
MEMORANDUM BY DUBOW, J.: FILED JULY 19, 2017
Appellant Bill Martin Milinski appeals from the November 17, 2016
Order denying his first Petition for relief filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, and challenges the effectiveness
of trial counsel. After review of the record and the Briefs of the parties, we
adopt the Opinion filed by the PCRA Court on November 17, 2016, as our
own, and affirm.
On April 10, 2013, Appellant was at Kathy Hockenjos’s apartment in
Smithfield Township when the next-door neighbor, Shannon Henley, heard
banging on the wall coming from the apartment. Henley sent a text
message to Hockenjos asking her to stop the noise. The banging then
*
Former Justice specially assigned to the Superior Court.
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became louder, and Appellant, who was drunk at the time, became
belligerent, stating “just come outside and fight.” N.T. Trial, 3/11/14, at 66,
72. Henley saw Appellant outside his window with a knife in his hand,
shouting that if Henley did not come out in 15 minutes, he was going to kick
in Henley’s door. Id., at 69-70. Henley, who had had prior run-ins with
Appellant and knew that Appellant had guns, called the police.
Pennsylvania State Troopers Kearney and Olszar responded and, after
Henley informed them that Appellant had firearms in the apartment, five
more troopers were called in to cover the back door and area around the
building at the tree line. Appellant exited the apartment, and Trooper
Riddell handcuffed him for safety, walked him to a nearby parking lot, and
patted him down for weapons. Appellant was not armed, but when asked
about weapons in the home, Appellant informed troopers that there were
two guns in the apartment that belonged to Hockenjos, his girlfriend.
Appellant also volunteered that he had moved from New Jersey to the
Smithtown apartment three months prior “to get away from all this stuff,”
i.e. similar problems that he had experienced in New Jersey. N.T. Omnibus
Hearing, 10/31/13, at 27, N.T. Trial, 3/11/14, at 149, 161.
Hockenjos invited State Trooper Kearney into the apartment. She
retrieved two guns from the living room, and gave them to Trooper Kearney,
telling him that the firearms were hers. See N.T. Omnibus Hearing,
10/31/13, at 14-16, 19-20; N.T. Trial, 3/11/14, at 171-72.
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The Commonwealth charged Appellant with, inter alia, Person not to
Possess a Firearm, Terroristic Threats, Harassment, and Public Drunkenness.
After a preliminary hearing, the court bound the charges over for trial. At
Appellant’s arraignment on May 29, 2013, the court ordered that Omnibus
Pre-trial Motions be filed by June 26, 2013.
On July 30, 2013, Appellant filed an Omnibus Pre-trial Motion,
including a Motion to Suppress, and contended, inter alia, that his
statements about his moving to Pennsylvania should be suppressed because
he was not given his Miranda warning.1, 2
The court held a hearing on Appellant’s omnibus motion on October
31, 2013. The court subsequently granted the Commonwealth’s Motion to
Reopen, and held an additional hearing where the Commonwealth
introduced Appellant’s application for a Pennsylvania State Identification
card.
On January 21, 2014, the court dismissed the Omnibus Motion as
untimely pursuant to Pa.R.Crim.P. 579(A).3 See Trial Ct. Order and Opinion,
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
On August 30, 2013, Appellant was again charged with various offenses
after Appellant and Henley had another run-in, which escalated and resulted
in Appellant breaking Henley’s arm with a crowbar after Henley had fired a
warning shot into the air. See N.T. Trial, 3/11/14, at 71-76. Those charges
were consolidated with the April 2013 charges. Henley was not charged.
3
Pa.R.Crim.P. 579(A) provides, in relevant part, that an “omnibus pretrial
motion for relief shall be filed and served within 30 days after arraignment,
unless opportunity therefor did not exist, or the defendant or defense
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dated 1/21/14. The court nonetheless addressed the merits of the Motion
and, after noting its finding that the troopers’ testimony was credible,
concluded that in light of the circumstances, the conditions of Appellant’s
detention were similar to that of a valid investigatory detention to gather
information and to determine if there was a safety concern. Id. at 8. The
court also concluded that Appellant had offered the statement about his
having moved to Pennsylvania from New Jersey without any prompting from
the troopers. Id. Having determined that there had been no Miranda
violation, the court concluded that Appellant’s statement about the guns and
his current residence would not be suppressed.4
Appellant was present for jury selection on March 4, 2014. On March
10, 2014, the first day of trial, Appellant did not appear because he was out
of state and allegedly had no transportation. The court continued the trial to
the next day. On March 11, 2014, Appellant failed to appear, and the court
issued a warrant for his arrest and held the trial with Appellant in absentia.
The jury found him guilty of all charges, except for Public Drunkenness.
Appellant was subsequently apprehended and on June 30, 2014, the
court sentenced him to an aggregate term of 42 to 84 months’ incarceration.
After the denial of his post-sentence motion, Appellant timely appealed, and
attorney … was not aware of the grounds for the motion, or unless the time
for filing has been extended by the court for cause shown.”
4
The court also noted that Hockenjos had invited Trooper Kearney into the
apartment and the guns obtained were, therefore, admissible.
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this Court affirmed the Judgment of Sentence. Commonwealth v.
Milinski, No. 2240 EDA 2014 (Pa. Super. filed June 5, 2015).
Appellant filed a timely pro se PCRA Petition, amended after the
appointment of counsel, alleging ineffective assistance of trial counsel for
failing to file a timely Pre-trial Motion to Suppress. The PCRA court held a
hearing on June 23, 2016, and denied the Petition on November 17, 2016.
Appellant timely appealed to this Court.
Appellant raises one issue: “Whether the [PCRA] court erred in finding
that trial counsel provided effective assistance of counsel.” Appellant’s Brief
at 5.
We review the denial of a PCRA Petition to determine whether it is
supported by the record and free of legal error. Commonwealth v. Fears,
86 A.3d 795, 803 (Pa. 2014). We grant great deference to the findings of
the PCRA court, and “these findings will not be disturbed unless they have
no support in the certified record.” Commonwealth v. Wilson, 824 A.2d
331, 333 (Pa. Super. 2003). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Moreover, “where a
PCRA court’s credibility determinations are supported by the record, they are
binding on the reviewing court.” Commonwealth v. White, 734 A.2d 374,
381 (Pa. 1999).
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Appellant avers that he received ineffective assistance of trial counsel.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he
burden of demonstrating ineffectiveness rests on Appellant.” Id. To satisfy
this burden, 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.” Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the
test will result in rejection of the appellant’s ineffective assistance of counsel
claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
Appellant avers that his underlying claim, i.e., that his statement to
the troopers should have been suppressed, has arguable merit. He also
alleges that counsel did not have a reasonable basis for failing to file a
timely pre-trial motion, and but for counsel’s error, “Appellant would have
had a substantially greater likelihood of having said statements suppressed”
and “the suppression of the statements would have had a significant impact
at trial [because] Appellant’s statement that he had been residing in the
apartment and his acknowledgement that there were firearms located in the
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residence constituted the only evidence establishing Appellant’s constructive
possession of the firearms.” Appellant’s Brief at 29-30.
The PCRA Court thoroughly addressed Appellant’s arguments in its
Opinion denying the PCRA Petition, with citation to relevant statutory and
case law, as well as thoughtful analysis and reasoning. The certified record
supports the court’s findings. Therefore, we adopt that Opinion as our own
for purposes of this appeal, and affirm the denial of relief. See PCRA Court
Opinion, dated November 17, 2016 (finding that the public safety exception
to Miranda applied under the circumstances presented and Appellant’s
statement about the guns in the residence was therefore admissible, id. at
9-10; (2) Appellant’s statement about his current residence was
spontaneous, voluntary, and not in response to custodial interrogation, id. at
10; and (3) notwithstanding counsel’s unexplained tardiness in filing the
omnibus motion, Appellant did not suffer prejudice because his statements
were not subject to suppression, id. at 11).
We direct the parties to annex the PCRA court’s November 17, 2016
Opinion to all future filings.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2017
8
Circulated 06/30/2017 12:01 PM