Com. v. Lighty, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRY LIGHTY,
Appellant No. 297 MDA 2015
Appeal from the PCRA Order February 5, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000893-2011
BEFORE: BOWES, WECHT, AND FITZGERALD * JJ.
MEMORANDUM BY BOWES, J: FILED SEPTEMBER 02, 2015
Terry Lighty appeals the order entered on February 5, 2015, wherein
the trial court denied his petition for post-conviction relief. We affirm.
Appellant was charged and convicted of one count of burglary of an
occupied structure and one count of theft by unlawful taking. These charges
stemmed from Appellant’s unauthorized entry into an occupied residence at
136 North Mary Street in Lancaster, Pennsylvania on January 18, 2011. The
victim testified that she awoke to find Appellant in her house and that he
told her that he was going to take her television. Appellant also warned the
victim not to call the police because he had “friends downstairs” and he
knew where she lived.
*
Former Justice specially assigned to the Superior Court.
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The victim’s neighbor, Brian Manning, noticed Appellant leaving the
residence carrying some of the victim’s property. Mr. Manning called 911
immediately after witnessing this and provided the police with a detailed
description of Appellant’s clothing and physical characteristics. A fresh snow
was falling on the night of the burglary. Sergeant Philip Berkheiser tracked
a single set of boot prints leading away from the crime scene down Mill
Avenue, until they reached 500 West Orange Street, where he noticed other
sets of footprints in the snow. N.T., 11/08/11, at 156-160. While tracking
these prints, Sergeant Berkheiser located an abandoned box which
contained an air purifier and palm sander owned by the victim.
After Mr. Manning provided him with the suspect’s description as a
“black male . . . wearing a gray hoody, gray pants, a blue vest, and gloves,”
Officer Ben Bradley sent out a police radio call to all officers at 1:00 a.m.
N.T., 11/07/11, at 95. Sergeant William Hickey received this call and, just
before 2:00 a.m., he observed a black male, who matched Mr. Manning’s
description, walking through the parking lot where his patrol vehicle was
parked and heading toward the convenience store across the street. Id. at
99. Officer Chris Genetti arrived to back up Sergeant Hickey and the two
approached Appellant and identified themselves. Id. at 101-102. Sergeant
Hickey explained to Appellant that a burglary had just occurred at a nearby
house and that he matched the suspect’s description. Id. He then asked
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Appellant if would step outside the store so that he could ask him some
questions about the incident. Id.
During this period of questioning, Sergeant Hickey learned Appellant’s
identity and that he claimed to be staying at 602 West King Street,
Apartment 5, with a person named “B” or “Bob.” Id. at 101, 104. Appellant
was patted-down for weapons, and police officers took photographs of his
clothing and boots. Id. at 106-108. Sergeant Hickey contacted the officers
who had been at the crime scene and asked if they could bring anyone who
could identify the suspect to the convenience store. Id. at 102. Mr.
Manning was brought to the store and was allowed to view Appellant from
inside a police vehicle. Id. He identified Appellant’s clothing as matching
that of the suspect but was not able to conclusively state that Appellant was
the person who he observed at the crime scene. Id. at 103.
Appellant’s photograph was later included in a photo array shown to
Willy Robertson, who occupied an apartment in the same building in which
Appellant claimed that he was staying. Mr. Robertson identified Appellant as
the person who had brought him a television the same night of the burglary.
Id. at 111. This television was recovered from Mr. Robertson’s apartment
by police and was identified as the same one stolen from the victim. Id. at
108.
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Appellant’s trial counsel failed to file a suppression motion seeking to
preclude the introduction of evidence obtained during Appellant’s Terry1
stop outside the convenience store. Consequently, Appellant’s statements,
items seized, and the photographs taken from this encounter with the police
were later offered into evidence at trial.
A jury convicted Appellant of burglary of an occupied structure and
theft by unlawful taking. The trial court imposed the mandatory minimum
sentence of twenty-five to fifty years imprisonment pursuant to 42 Pa.C.S. §
9714(a)(2) because Appellant had a prior record that included at least two
crimes of violence. We affirmed the judgment of sentence on August 14,
2012, and our Supreme Court denied allowance of appeal on April 16, 2013.
Commonwealth v. Lighty, 60 A.3d 570 (Pa.Super. 2012) (unpublished
memorandum), appeal denied, 64 A.3d 631 (Pa. 2013).
On December 24, 2013, Appellant filed a timely pro se PCRA petition.
Appointed counsel filed an amended PCRA petition that alleged Appellant’s
trial counsel provided ineffective assistance for failing to file an omnibus
pretrial motion seeking to suppress the evidence derived from his detention
outside of the convenience store and the search of his person. Appellant
requested that the PCRA court vacate his sentence and remand the matter
for a new trial without the allegedly tainted evidence.
____________________________________________
1
Terry v. Ohio, 392 U.S. 1 (1968).
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An evidentiary hearing was held on Appellant’s PCRA petition on April
16, 2014. Appellant’s trial counsel was the only witness and testified as to
why he had not filed a suppression motion. He explained:
[The police] asked him to come outside; he voluntarily went with
them. They returned all his personal belongings to him. There
was no statement made by him at the time and he, again,
basically volunteered to when they asked him to go with them,
or at least outside with them.
PCRA Hearing, 05/16/14, at 9. Counsel further elucidated that he received
the police report prior to trial and reviewed the report’s account of the
interaction to determine whether a suppression motion was warranted. Id.
at 10-12. He continued that it was his typical trial strategy in criminal cases
to identify suppression issues, and when he discovered a potentially
meritorious challenge, he pursued it. Id. at 11-12. He estimated that he
files suppression motions in approximately thirty-five percent of the cases
that he tries, but he did not believe that the facts and circumstances of this
encounter between Appellant and the police would be subject to
suppression. Id at 11-14. Specifically, he agreed, “that it was a lawful
investigative detention supported by reasonable suspicion[.]” Id. at 13.
The PCRA court denied relief on February 5, 2015, on the grounds that
Appellant, “failed to demonstrate by a preponderance of the evidence that
[counsel’s failure to file a] motion to suppress rises to the level of a claim of
arguable merit,” because trial counsel’s testimony indicated that he had
done the necessary investigation of Appellant’s interaction with the police
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before determining that there were no meritorious suppression issues. PCRA
Court Opinion, 02/15/15, at 6, 10. Appellant filed a timely notice of appeal.
Appellant presents a single issue for our review:
Whether the Court erred in denying post-conviction relief where
trial counsel was ineffective in failing to seek suppression of the
fruits of an illegal search, when the police did not have sufficient
cause to detain and interrogate Appellant, or to search him for
incriminating evidence?
Appellant’s brief at 4.
In order to prevail on his ineffective assistance of counsel claim,
Appellant must show that his trial counsel provided ineffective assistance.
We have previously held that:
This Court’s standard of review regarding an order denying a
petition under the PCRA is whether the determination of the
PCRA court is supported by the evidence of record and is free of
legal error. Commonwealth v. Halley, 870 A.2d 795, 799 n. 2
(Pa. 2005). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.
2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007).
For Appellant to prevail on a PCRA claim for ineffectiveness of counsel,
Appellant must establish by a preponderance of the evidence: (1) that the
underlying claim has merit; (2) that there was no reasonable basis for
counsel’s conduct or lack thereof; and (3) that Appellant suffered prejudice
as a result of counsel’s conduct or lack thereof. Commonwealth v. Laird,
__ A.3d __, 2015 WL 4401561 at *3 (Pa. 2015). We are also reminded that
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counsel is presumed effective, and the burden of establishing counsel’s
ineffectiveness always lies with Appellant. Commonwealth v. Balodis, 747
A.2d 341, 334 (Pa. 2000).
In Commonwealth v. Reed, 19 A.3d 1163, 1166 (Pa.Super. 2011),
this Court highlighted the differences between the three levels of police
interaction with a person. We also held that each level requires a different
amount of justification. Id. The three levels of interaction between police
and citizens under search and seizure laws are the “mere encounter,”
“investigative detention,” and “custodial detention.” Id.
The first level of interaction is the ‘mere encounter’ (or request
for information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or respond.
The second, an ‘investigative detention’ must be supported by
reasonable suspicion; it subjects a suspect to a stop and period
of detention, but does not involve such coercive conditions as to
constitute the functional equivalent of an arrest. Finally, an
arrest or ‘custodial detention’ must be supported by probable
cause.
Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005)
(citation omitted).
The determination of whether or not a person can be considered to
have been “seized” by police requires the court to consider whether the
citizen’s movement was restrained in some way by means of physical force
or a show of authority. Commonwealth v. Strickler, 757 A.2d 884, 887
(Pa. 2000). Instantly, there is nothing in the record which suggests that
Appellant’s movement was restrained at the outset of questioning. Appellant
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voluntarily agreed to go outside after Sergeant Hickey and Officer Genetti
approached him, identified themselves, indicated that they were
investigating a burglary in the area, and asked if he would step outside with
them for questioning. N.T., 11/07/11, at 101-102. At this point, the
interaction between Appellant and police witnesses remained a mere
encounter and he was under no compulsion to comply with the officers’
request to step outside or provide them with any information.
The Commonwealth mistakenly claims that Appellant provides no
factual or evidentiary basis from which we can assume that this mere
encounter became an investigatory detention. However, once the officers
began to conduct a pat-down search for weapons and use a camera to take
photographs of Appellant’s appearance and attire, we find that, “the
encounter escalated into an investigatory detention.” Commonwealth v.
Guess, 53 A.3d 895, 901 (Pa.Super. 2012).
Examples of circumstances that might indicate a seizure, even
where the person did not attempt to leave, would be the
threatening presence of several officers, the display of a weapon
by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.
Commonwealth v. McClease, 750 A.2d 320, 324-325 (Pa.Super. 2000)
(citation omitted)
An investigatory detention requires a reasonable belief by the officers
that criminal activity was afoot. In Commonwealth v. Tam Thanh
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Nguyen, __A.3d __, 2015 WL 1883050 (Pa.Super. 2015), we recently
reiterated,
Reasonable suspicion exists only where the officer is able to
articulate specific observations which, in conjunction with
reasonable inferences derived from those observations, led him
reasonably to conclude, in light of his experience, that criminal
activity was afoot and that the person he stopped was involved
in that activity.
Id. at *5 (citation omitted). We continued, “this Court must make an
objective inquiry, namely, whether the facts available to the officer at the
moment of the intrusion warrant a man of reasonable caution in the belief
that the action taken was appropriate.” Id. (citation omitted).
Appellant relies on Commonwealth v. Hicks, 253 A.2d 276 (Pa.
1969), in support of his claims that his investigatory detention by the
officers lacked the requisite reasonable suspicion. Forty-five minutes after a
reported attempted burglary, the defendant therein was detained and
subjected to a pat-down search as he was walking on the sidewalk four
blocks from where the crime occurred. The victims, who reported the
burglary via a 911 call, described the suspect as a thirty-year-old black male
with a mustache, wearing a brown coat. The defendant lacked a mustache,
but was black, in his thirties, and wearing a “beige or light colored jacket.”
Id. at 278. The police officers continued to hold the defendant following the
pat-down to enable the victims to arrive and positively identify the suspect.
Our Supreme Court ultimately found that the mere fact that the defendant
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was black and in his thirties was not enough to establish reasonable
suspicion that he committed the crimes.
Appellant also relies upon Commonwealth v. Berrios, 263 A.2d 342
(Pa. 1970), where the Pennsylvania Supreme Court invalidated an
investigative detention of two men based on their respective races. The
police officers in Berrios had received information about a shooting and
received a generalized description that the suspects were two black males in
dark clothing and one Hispanic male in light clothing. Id. at 344. The
officers proceeded to patrol the nearby area searching for the suspects, and
twenty minutes later, observed a black man and a Hispanic man walking
together three blocks from the crime scene. Id. The men were stopped by
the officers and subjected to an investigatory detention. Id. The Court
found that the description of the defendants’ races and general color of their
clothing was insufficient to raise a reasonable suspicion to justify their
detention. Id.
Instantly, Appellant asserts that the rulings in Hicks and Berrios
conclusively illustrate that there were insufficient facts for Sergeant Hickey
to form a reasonable suspicion that Appellant was involved in the Mary
Street burglary just because he was black and wore clothing that was similar
to the witness’s description. Appellant mischaracterizes the difference in the
level of specificity between the descriptions given of the suspects in Berrios
and Hicks, and the suspect’s description in the present case. In contrast to
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the generalized descriptions of the respective suspects in those two cases,
the eyewitness’s description of the suspect in the instant case matched the
color and type of almost every piece of clothing that Appellant was wearing.
Appellant was observed by Sergeant Hickey entering a convenience
store only four blocks from the crime scene an hour after the burglary had
occurred. N.T., 11/07/11, at 99. Sergeant Hickey also noticed Appellant
was wearing gray sweatpants, a gray hooded sweatshirt, a dark vest, and
tan boots, which identically matched the description of the burglary suspect
provided by the eyewitness. Id. Sergeant Hickey testified that, prior to
Appellant’s appearance at the convenience store, he had not seen any other
individuals dressed in any type of clothing that even remotely matched this
description. Id. at 100. Due to these circumstances, we concur with the
trial court’s opinion that, from the beginning of Appellant’s interaction with
police, Sergeant Hickey’s suspicions were much more reasonable than those
of the officers in Hicks and Berrios. Moreover, Appellant was not
immediately detained based on Sergeant Hickey’s observations of his
clothing, as was the defendant in Hicks. In fact, Appellant acquiesced to
the officers’ request to go outside the store and answer some questions
about the burglary. Id. at 102.
This Court has previously found that the combination of a defendant
matching the physical description of a suspect, coupled with the fact that no
other individuals in the area fit the description, and nervous or anxious
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behavior during questioning in the mere encounter stage of police interaction
are all relevant factors in an officer’s reasonable suspicion determination.
Guess, supra. We find that it is entirely reasonable for trial counsel to
conclude that Appellant’s behavior prior to the pat-down search, in
combination with the fact that his attire directly matched the description of
the suspect given by Mr. Manning, enhanced Sergeant Hickey’s suspicions
and justified his investigatory detention.
Upon careful review of the evidence, we concur with the PCRA court’s
finding that Appellant has failed to demonstrate that trial counsel provided
ineffective assistance by not raising a motion to suppress the evidence
presented by the Commonwealth at trial. As a result, Appellant has failed to
prove one of the three required elements of the established test for a PCRA
claim regarding ineffective assistance of counsel. Since counsel cannot be
considered ineffective for failing to raise a claim that is without merit,
Douglas, supra, Appellant is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/2/2015
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