Com. v. Hill, C.

J-S28041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CORY ALAN HILL :
:
Appellee : No. 574 MDA 2022
Appeal from the PCRA Order Entered March 18, 2022
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000373-2018
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED FEBRUARY 15, 2023
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Berks County Court of Common Pleas, which granted the Post
Conviction Relief Act (“PCRA”)1 petition filed by Appellee, Cory Alan Hill. We
affirm.
The PCRA court’s opinion set forth the relevant procedural history of this
appeal as follows:
[Appellee] was arrested after fleeing a motor vehicle stop
after police observed a vehicle with a New Jersey license
plate tapping its brakes, the officer observed it negotiate a
traffic circle without using a turn signal, and the officer
observed an occupant of the vehicle observing police while
police followed the vehicle. [Appellee] waived his
arraignment on January 25, 2018, at which time he was
represented by [a public defender]. On February 16, 2018,
[another public defender] entered his appearance on
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1 42 Pa.C.S.A. §§ 9541-9546.
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[Appellee’s] behalf. The time for filing a pretrial suppression
motion expired on or about March 16, 2018. No pretrial
motion was filed within that time, nor was there a request
for an extension. On May 1, 2018, private counsel Gary
Dorsett entered his appearance on behalf of [Appellee].
Almost a year later, private attorney Jay Nigrini entered his
appearance on behalf of [Appellee]. On May 8, 2019,
Attorney Nigrini filed an omnibus pretrial suppression
motion on behalf of [Appellee]. The Commonwealth moved
to quash the pretrial suppression motion due to its
untimeliness. After a hearing, on June 7, 2019, [the trial
court] quashed the motion and did not address its merits.
On August 29, 2019, [Appellee] was convicted following a
bench trial of one count of persons not to possess firearms,
one count of possession with intent to deliver cocaine, one
count of possession of cocaine, one count of possession of a
small amount of marijuana, one count of possession of drug
paraphernalia, and one count of resisting arrest or other law
enforcement. On September 25, 2019, [Appellee] was
sentenced to five (5) to twenty (20) years for persons not
to possess firearms followed by three (3) to twenty (20)
years for possession with intent to deliver cocaine to run
concurrent with the other remaining counts. No post-
sentence motions or notice of appeal were filed within the
time limits.
On May 15, 2020, [Appellee], pro se, filed a [motion for
leave to appeal nunc pro tunc, presenting arguments
sounding in ineffective assistance of counsel.2 The court
treated Appellant’s filing as a pro se PCRA petition and, o]n
July 9, 2020, [the PCRA court] appointed [counsel] to assist
[Appellee] with the preparation and filing of a [PCRA
petition].
* * *
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2 Despite the nature of Appellee’s pro se request for relief, the clerk of courts
mistakenly forwarded the filing to this Court as if it was a notice of appeal.
This Court docketed the filing as a notice of appeal, and Appellee subsequently
filed an application to discontinue the matter. This Court granted Appellee’s
application on September 28, 2020.
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[O]n November 23, 2021, [appointed counsel] asked for his
appearance to be withdrawn and for new counsel to be
appointed due to his withdrawal as county appointed PCRA
counsel. On December 15, 2021, [the PCRA court]
appointed [current counsel] to represent [Appellee] and
entered an order for counsel to prepare and file an amended
PCRA petition or a “no-merit letter” as appropriate. On
January 11, 2022, [PCRA counsel] filed an amended [PCRA]
petition alleging it was ineffective assistance of counsel for
[Appellee’s] prior counsel to not file a pretrial suppression
motion or an extension of time to file one before Attorney
Nigrini entered his appearance and filed it in May 2019. On
February 15, 2022, a hearing was held to determine
whether [Appellee] had a colorable claim for ineffective
assistance of counsel for trial counsel’s failure to file a
pretrial suppression motion or to request an extension for
the same prior to Attorney Nigrini’s filing over a year late.
On March 18, 2022, [the PCRA court] granted the PCRA
petition.
On April 13, 2022, the Commonwealth filed a notice of
appeal to the Superior Court…. A concise statement of
errors complained of on appeal was filed on April 26, 2022.
(PCRA Court Opinion, filed 5/16/22, at 1-3) (internal footnotes and some
capitalization omitted).
The Commonwealth now raises two issues on appeal:
Did the PCRA court err by granting relief as [Appellee] failed
to prove that his underlying claim is of arguable merit under
a statutory construction analysis of 75 Pa.C.S.A. § 3334 as
the vehicle stop was valid for failing to use a turn signal
when exiting a traffic circle when turning onto another road?
Did the PCRA court err by granting relief as [Appellee] failed
to show that “but for” the inaction of original counsel that
he was prejudiced by the failure to file a suppression motion
where there is no reasonable probability the results would
have been different as under Pennsylvania law a failure to
use a turn signal when exiting a traffic circle violates 75
Pa.C.S.A. § 3334 when turning onto another road?
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(Commonwealth’s Brief at 10).
“Our standard of review of [an] order granting or denying relief under
the PCRA calls upon us to determine whether the determination of the PCRA
court is supported by the evidence of record and is free of legal error.”
Commonwealth v. Parker, 249 A.3d 590, 594 (Pa.Super. 2021) (quoting
Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.Super. 2013)). “The
PCRA court’s factual findings are binding if the record supports them, and we
review the court’s legal conclusions de novo.” Commonwealth v. Prater,
256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 268 A.3d
386 (2021).
Regarding questions of statutory interpretation:
Statutory interpretation is a question of law, therefore our
standard of review is de novo, and our scope of review is
plenary. In all matters involving statutory interpretation,
we apply the Statutory Construction Act, 1 Pa.C.S. § 1501
et seq., which provides that the object of interpretation and
construction of statutes is to ascertain and effectuate the
intention of the General Assembly.
Generally, a statute’s plain language provides the best
indication of legislative intent. We will only look beyond the
plain language of the statute when words are unclear or
ambiguous, or the plain meaning would lead to a result that
is absurd, impossible of execution or unreasonable.
Therefore, when ascertaining the meaning of a statute, if
the language is clear, we give the words their plain and
ordinary meaning.
Commonwealth v. Watts, 283 A.3d 1252, 1255-56 (Pa.Super. 2022)
(internal citations and quotation marks omitted).
The Commonwealth’s issues are related, and we address them together.
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The Commonwealth acknowledges that the state police conducted the
underlying motor vehicle stop based upon the driver’s failure to use a turn
signal, and the trooper “needed probable cause to effectuate the stop.”
(Commonwealth’s Brief at 18). The Commonwealth also asserts that Trooper
Erik Sinwich provided the justification for the stop during the bench trial, when
he testified that he observed the vehicle at issue exit a traffic circle while using
a “quick, partial signal.” (Id. 19) (quoting N.T. Trial, 8/27/19, at 24). The
Commonwealth asserts that Section 3334 of the Motor Vehicle Code mandates
the use of turn signals under certain circumstances, and “[t]he question then
becomes whether … the use of a turn signal is required when exiting a traffic
[circle] and whether … the ‘quick, partial signal’ was enough” to satisfy the
statute. (Id.)
The Commonwealth concedes that it “was unable to find any case law
by the Pennsylvania appellate courts on the issue of the use of turn signals
when exiting a traffic circle.” (Id.) Therefore, the Commonwealth contends
that this Court must engage in statutory interpretation. Based upon the plain
meaning of the statutory language, coupled with the definition of a traffic circle
from the Pennsylvania Department of Transportation’s driver’s manual, the
Commonwealth maintains that exiting a traffic circle amounts to a “turn” that
requires an appropriate signal. (See id. at 21). The Commonwealth posits
that the “quick, partial signal” utilized by the driver did not comply with
Section 3334, and there was no arguable merit to Appellee’s claim that prior
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counsel was ineffective for failing to challenge the vehicle stop in a timely
suppression motion.
Regarding the prejudice prong of the test for ineffective assistance, the
Commonwealth argues that the PCRA court did not make “a firm ruling that a
turn signal is not required when exiting a traffic circle.” (Id. at 24). Absent
such a finding, the Commonwealth reasons that there was not a “reasonable
probability that the outcome would have been different,” and Appellee could
not satisfy the prejudice prong. (Id.) The Commonwealth concludes that the
PCRA court erred in granting relief, and this Court must reverse the PCRA
court’s order. We disagree.
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied, ___ Pa. ___, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence
could have taken place. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction;
and (3) but for the errors and omissions of counsel, there is
a reasonable probability that the outcome of the
proceedings would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and
quotation marks omitted). The failure to satisfy any prong of the test for
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ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111 (2011).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit[.]” Commonwealth
v. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175,
179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514, 524,
645 A.2d 189, 194 (1994)). “Counsel cannot be found ineffective for failing
to pursue a baseless or meritless claim.” Commonwealth v. Poplawski,
852 A.2d 323, 327 (Pa.Super. 2004) (quoting Commonwealth v. Geathers,
847 A.2d 730, 733 (Pa.Super. 2004)).
“Once this threshold is met we apply the ‘reasonable basis’ test to
determine whether counsel’s chosen course was designed to effectuate his
client’s interests.” Commonwealth v. Kelley, 136 A.3d 1007, 1012
(Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95).
The test for deciding whether counsel had a reasonable
basis for his action or inaction is whether no competent
counsel would have chosen that action or inaction, or, the
alternative, not chosen, offered a significantly greater
potential chance of success. Counsel’s decisions will be
considered reasonable if they effectuated his client’s
interests. We do not employ a hindsight analysis in
comparing trial counsel’s actions with other efforts he may
have taken.
Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting
Sandusky, supra at 1043-44).
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“To demonstrate prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different. [A] reasonable probability is a
probability that is sufficient to undermine confidence in the outcome of the
proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312
(2014) (internal citations and quotation marks omitted). “[A] criminal
defendant alleging prejudice must show that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3,
22, 807 A.2d 872, 883 (2002)).
Additionally, the Motor Vehicle Code requires the use of turn signals as
follows:
§ 3334. Turning movements and required signals
(a) General rule.—Upon a roadway no person shall
turn a vehicle or move from one traffic lane to another or
enter the traffic stream from a parked position unless and
until the movement can be made with reasonable safety nor
without giving an appropriate signal in the manner provided
in this section.
(b) Signals on turning and starting.—At speeds of
less than 35 miles per hour, an appropriate signal of
intention to turn right or left shall be given continuously
during not less than the last 100 feet traveled by the vehicle
before turning. The signal shall be given during not less
than the last 300 feet at speeds in excess of 35 miles per
hour. The signal shall also be given prior to entry of the
vehicle into the traffic stream from a parked position.
(c) Limitations on use of certain signals.—The
signals required on vehicles by section 3335(b) (relating to
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signals by hand and arm or signal lamps) shall not be
flashed on one side only on a disabled vehicle, flashed as a
courtesy or “do pass” signal to operators of other vehicles
approaching from the rear, nor be flashed on one side only
of a parked vehicle except as may be necessary for
compliance with this section.
(d) Discontinuing turn signals.—Turn signals shall
be discontinued immediately after completing the turn or
movement from one traffic lane to another traffic lane.
75 Pa.C.S.A. § 3334. “For a stop based on the observed violation of the
Vehicle Code or otherwise non-investigable offense, an officer must have
probable cause to make a constitutional vehicle stop.” Commonwealth v.
Harris, 176 A.3d 1009, 1019 (Pa.Super. 2017).
Instantly, Trooper Sinwich testified at trial regarding his observations
that prompted the vehicle stop. On December 31, 2017, at approximately
12:40 p.m., Trooper Sinwich was on patrol when he saw a black Ford Focus
traveling northbound on Museum Road. The trooper followed the Ford, which
was “excessively braking even with no other vehicles around, no vehicles in
front.” (N.T. Trial at 23). The trooper also “observed three occupants in that
vehicle, and the rear occupant behind the driver’s seat[, Appellee,] was
intently watching me through the rearview mirror.” (Id.)
Trooper Sinwich followed the vehicle through an intersection with Penn
Avenue, at which point the vehicle approached a traffic circle leading to West
Reading. (See id. at 24). Trooper Sinwich described what happened next as
follows:
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I observed the vehicle not signal entering the traffic circle[3]
and proceed around to the right, almost completely around
the circle, and exit onto what is the one, two, third right
onto Reading Avenue with just a quick partial signal.
(Id.) After the vehicle exited the traffic circle, Trooper Sinwich conducted a
traffic stop. The remainder of the record confirms that Trooper Sinwich
stopped the vehicle based upon its failure to use a turn signal. See Affidavit
of Probable Cause, dated 12/31/17, at 1 (stating trooper conducted traffic
stop “for vehicle code violation VC 3334 Turning Movements and Required
Signals”).
In light of this testimony, Appellee’s PCRA petition argued that “there is
no clear authority requiring a driver to use a turn signal during the negotiation
of a traffic circle.” (Amended PCRA Petition, filed 1/11/22, at 4). PCRA
counsel expanded on this argument at the PCRA hearing as follows:
That car that [Appellee] was a passenger in had not changed
roads but simply been on one road, entered the roundabout
and continued on the same road after going around half of
the roundabout.
My basic assertion is … that it’s not at all clear from reading
either the statutes regarding turning devices or the statute
regarding roundabouts that it’s necessary to use a turn
signal when proceeding down a particular roadway that
happens to have a roundabout in the middle of it.[4]
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3In its brief, the Commonwealth does not argue that the failure to signal when
entering the circle constituted a violation of Section 3334.
4 To the extent counsel referred to a statue regarding roundabouts, we note
that the parties use the terms “roundabout” and “traffic circle”
interchangeably. Further, the Motor Vehicle Code governs the right-of-way
(Footnote Continued Next Page)
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(N.T. PCRA Hearing, 2/15/22, at 5).
The PCRA court reviewed these claims and agreed that “[t]here has been
no clear authority established in this Commonwealth as to whether a driver is
required to use a turn signal during the negotiation of a traffic circle.” (PCRA
Court Opinion at 4). Consequently, the court engaged in statutory
interpretation, and it reviewed case law from other jurisdictions with similar
statutory provisions. Based upon this analysis, the PCRA court found that
Appellee was entitled to relief:
[L]ooking at other jurisdictions, there are numerous states
where a turn signal is not required when navigating a
roundabout because the statute for use of turn signals is too
ambiguous to require the use of turn signals in a
roundabout.
As there is no clear authority in the Commonwealth
requiring the use of turn signals when navigating a
roundabout, there was a basis for previous counsel to file a
timely pretrial suppression motion for all evidence gathered
[as] a result of the traffic stop for failure to use a turn signal.
* * *
[The PCRA court also] finds that [Appellee] has shown
prejudice due to counsel’s failure to file a pretrial
suppression motion timely or to request an extension of
time to file a pretrial motion.
(PCRA Court Opinion at 5-6) (internal citations omitted).
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for vehicles negotiating traffic circles. See 75 Pa.C.S.A. § 3321(b) (stating
that traffic in traffic circle shall have right-of-way). The statute, however,
does not mention the use of turn signals in conjunction with driving through
a traffic circle.
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Our review of the relevant case law from other jurisdictions confirms the
PCRA court’s findings. See Noble v. State, 357 P.3d 1201, 1206 (Alaska
App. 2015) (stating turn signal statute was formulated before state began
constructing roundabouts; while statute requires motorists to signal at least
100 feet before turning, it was unclear whether entering or exiting roundabout
constituted turn; court declined to “stretch” language of statute governing
turn signals to make it apply to roundabouts); State v. Davis, 143 N.E.3d
343, 347 (Ind.App. 2020) (holding defendant did not violate turn signal
statute when he did not signal upon exiting roundabout; any assumption that
statute specifically applied to roundabouts fails to withstand scrutiny when
considering “reality and logistics” of roundabouts); People v. McBride, 490
P.3d 810 (Colo.App. 2020), reversed in part on other grounds, 511 P.3d 613(Colo. 2022) (explaining turn signal statute did not apply to entering or exiting
roundabouts; while statute requires motorists to signal not less than 100 feet
before turning in urban or metropolitan areas, entrances and exits of
roundabouts are often less than 100 feet apart).
Here, the PCRA court carefully evaluated Section 3334, and we cannot
say that the court committed legal error in its interpretation of the statute.
See Parker, supra. Thus, we agree that Appellee demonstrated the arguable
merit of his claim that prior counsel should have filed a timely suppression
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motion challenging the vehicle stop on this basis.5 See Smith, supra;Poplawski, supra. Further, the PCRA court properly determined that
Appellee suffered prejudice due to prior counsel’s failure to pursue this claim
in a timely suppression motion. See Spotz, supra. Accordingly, we affirm
the order granting PCRA relief in favor of Appellee.
Order affirmed.
Judge Olson joins this memorandum.
Judge McLaughlin files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2023
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5 We also emphasize that the Commonwealth’s argument is limited to its
assertion that “an individual exiting from a traffic circle must use an
appropriate signal when turning or moving from one lane to another under
Pennsylvania law.” (Commonwealth’s Brief at 14). Consequently, the
Commonwealth contends that the subject vehicle’s “quick, partial signal” upon
exiting the traffic circle was inadequate under Section 3334. Assuming
without deciding that Section 3334 mandates the use of a turn signal upon
exiting a traffic circle, our review reveals that the record is silent regarding
the approximate speed of the subject vehicle and the distance traveled
between the start of the turn signal and the vehicle’s exit from the traffic
circle. Likewise, the Commonwealth’s brief is devoid of such specifics. (See
Commonwealth’s Brief at 21-22). Absent more, we cannot conclude that the
“quick, partial signal” was inappropriate under the circumstances. Thus, this
is an alternative argument that Appellee’s prior counsel could have raised in
a timely filed suppression motion.
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