Com. v. Peterkin, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KEITH DAVID PETERKIN
Appellant No. 173 MDA 2019
Appeal from the PCRA Order Entered November 20, 2018
In the Court of Common Pleas of Centre County
Civil Division at No.: CP-14-CR-0001358-2015
BEFORE: BOWES, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 20, 2019
Appellant Keith David Peterkin pro se appeals from the November 20,
2018 order entered in the Court of Common Pleas of Centre County (“PCRA
court”), which denied his request for collateral relief under the Post Conviction
Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The facts and procedural history of this case are undisputed. As
recounted by a prior panel of this Court on direct appeal:
On July 31, 2015, Troopers Aaron Tiracorda and Christopher
Pifer were on a midnight traffic detail with a police dog, K9 Officer
Tom. At approximately 2:30 a.m., the troopers observed
suspected illegal window tint on Appellant’s vehicle, in violation of
75 Pa.C.S.A. § 4524. Trooper Tiracorda activated his emergency
lights and spotlight to conduct a traffic stop. Appellant did not
immediately stop; he continued to drive for over one minute
before pulling over
The troopers approached Appellant’s vehicle and questioned
him about his travels that early morning. Appellant was sweating
profusely, became increasingly nervous throughout the
interaction, and employed “stall tactics” when answering the
troopers’ questions: he was evasive, would not immediately
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answer, and provided vague, uncertain answers. N.T., 1/8/2016,
at 19.
Trooper Pifer conducted a check of the National Crime
Information Center (NCIC) database from the patrol vehicle while
Trooper Tiracorda remained with Appellant. At this time, Trooper
Tiracorda detected the odor of raw marijuana emanating from the
interior of Appellant’s vehicle. Trooper Tiracorda returned to the
patrol vehicle and notified Trooper Pifer of the smell. The troopers
returned to Appellant’s vehicle, and Trooper Pifer also detected
the odor of marijuana.
Trooper Pifer asked Appellant to exit the vehicle so that
Trooper Pifer could explain the warning for the window tint
violation. Appellant hesitated before reluctantly exiting the
vehicle. The troopers questioned Appellant about the smell of
marijuana coming from his vehicle. Appellant initially denied the
presence of marijuana in the vehicle, but after several more
questions from the troopers, he acknowledged that there was a
small amount of marijuana in the vehicle. Appellant was patted
down and placed in handcuffs for officer safety.
Trooper Tiracorda conducted a “pre-search” of the vehicle
to ensure the vehicle was safe for K9 Officer Tom. Id. at 23.
During this pre-search, Trooper Tiracorda recovered
approximately $12,000 and a small amount of marijuana from
within the center console. K9 Officer Tom searched the vehicle;
he alerted the troopers and “indicated on” the center console
where the marijuana was found and a birthday present bag
located in the backseat. Id. at 26. The bag was opened and
found to contain approximately one pound of cocaine. The window
tint was tested with a tint meter, and the reading indicated that
only 22% of light could pass through the window.
Appellant was arrested and charged with [possession with
intent to deliver a controlled substance, possession of a small
amount of marijuana, possession of a controlled substance, and
possession of drug paraphernalia]. Appellant filed a motion to
suppress, in which he alleged that the initial traffic stop was illegal,
the search of the vehicle was illegal, and any statements made
during the stop were not rendered voluntarily, knowingly, and
intelligently, in violation of Miranda v. Arizona, 384 U.S. 436
(1966).
After a hearing, his motion to suppress evidence was
denied. The trial court held that the troopers had reasonable
suspicion to conduct the traffic stop due to the window tint
violation, and that the odor of marijuana and Appellant’s
admission to the presence of marijuana in the vehicle created
probable cause for the troopers to search the vehicle. Trial Court
Opinion, 2/19/2016, at 3-5.
Appellant’s motion to suppress statements was granted in
part and denied in part. In addressing Appellant’s motion to
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suppress statements, the trial court separated the interaction
between Appellant and the troopers into four periods:
(1) the period from the start of the traffic stop until
the initiation of the repetitive questioning of
[Appellant] regarding marijuana in the vehicle (“How
much do you have in the car? Did you smoke before
you left?”); (2) the period from the start of the
repetitive questioning until the officers notify
[Appellant] that he is under arrest and give
[Appellant] an incomplete Miranda warning; (3) the
period between the arrest and incomplete Miranda
warning and the second complete Miranda warning
and; (4) the period after the complete Miranda
warning.
Id. at 8. The trial court held that Appellant’s statements in
segments (1) and (4) were admissible, but those in segments (2)
and (3) were not. Notably, the admission to the presence of a
small amount of marijuana occurred during segment (2), and was
deemed inadmissible.
Thereafter, Appellant was convicted following a stipulated
nonjury trial and sentenced [to four and one-half to nine years of
imprisonment]. Appellant timely filed a notice of appeal. [Both
Appellant and the trial court complied with Pa.R.A.P. 1925.]
Commonwealth v. Peterkin, No. 485 MDA 2017, unpublished
memorandum, at 1-5 (Pa. Super. filed November 21, 2017) (footnote
omitted). On appeal, Appellant argued only that the trial court erred in failing
to suppress the results of the illegal search of his vehicle. We disagreed. In
so doing, we determined:
the totality of the circumstances demonstrates that the troopers
still had probable cause to believe that an offense had been
committed, namely: (1) the illegally tinted windows; (2)
Appellant’s delayed response to the troopers initiating a traffic
stop; (3) Appellant’s evasiveness and stalling tactics when
answering the troopers’ basic questions; (4) Appellant’s increased
nervousness; (5) Appellant’s profuse sweating; (6) the smell of
marijuana emanating from Appellant’s vehicle; and (7) Appellant’s
hesitation to exit the vehicle to receive a warning. These
circumstances, viewed in the aggregate, would cause a reasonable
officer to believe that Appellant possessed contraband in the
vehicle.
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Peterkin, supra, at 7-8. On April 10, 2018, our Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Peterkin,
184 A.3d 144 (Pa. 2018).
On May 3, 2018, Appellant pro se filed the instant timely first PCRA
petition, challenging the legality of the underlying traffic stop and the resulting
search of his vehicle. On July 11, 2018, the PCRA court appointed counsel.
On August 14, 2018, the Commonwealth filed an answer to Appellant’s PCRA
petition, asserting that Appellant previously litigated the issue raised in his
PCRA petition. See Commonwealth’s Answer, 8/14/18, at 3 (unpaginated).
On September 17, 2018, appointed counsel filed a no-merit letter under
Turner/Finley1 and petitioned to withdraw from the case. The PCRA court
granted counsel’s petition on September 19, 2018. On the same day, the
PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition
without a hearing. The court directed Appellant to respond to the Rule 907
notice within twenty days.2 Appellant responded. On November 14, 2018,
the PCRA court denied Appellant PCRA relief. On November 20, 2018, the
PCRA court vacated its November 14, 2018 order because it contained pages
of, and references to, another, unrelated case and reissued a corrected order
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2 In September 19, 2018 Rule 907 order, the PCRA court committed a
typographical error by referring to appointed counsel by a different last name.
See PCRA Court Opinion, 11/20/18 at 3 (acknowledging the typographical
error).
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and opinion. Appellant pro se timely appealed. The PCRA court directed
Appellant to file a Rule 1925(b) statement of errors complained of on appeal.
Appellant complied, raising eight assertions.3 In response, the PCRA court
issued a Rule 1925(a) opinion, concluding that Appellant’s claims do not merit
relief. Specifically, the court noted that only Appellant’s “first and fifth
allegations of error pertain to the PCRA proceedings” and that his “second,
third, fourth, six, seventh, and eighth” assertions of error “have either been
fully litigated or have been waived by failure to previously raise them” pre-
trial, during trial and after trial. PCRA Court Opinion, 3/11/19, at 1.
On appeal,4 Appellant presents the following issues for our review, which
we quote from the argument section of his brief.5
[I.] Is the court’s dismissal of Appellant’s PCRA petition and
granting of appointed counsel leave to withdraw valid when Judge
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3 Specifically, Appellant challenged (1) the PCRA court’s decision to dismiss
his petition without a hearing and granting appointed counsel’s petition to
withdraw; (2) the trial court’s denial of his suppression motion and the
discretionary aspects of his sentence insofar as he claims that the sentence
imposed was harsh; (3) the prosecutor’s conduct during trial; (4) the reasons
underlying the traffic stop; (5) the effectiveness of his trial, appellate and
PCRA counsels; (6) the weight of the evidence supporting his conviction; (7)
the sufficiency of the evidence supporting his conviction; and (8) the legality
of his sentence.
4“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).
5We note with disapproval that Appellant’s brief does not fully conform with
our rules of appellate procedure because it does not contain a statement of
questions involved, as required by Pa.R.A.P. 2116.
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Brian K. Marshall failed to comply with procedures of the
Pa.R.Crim.P. 907(1)[?]
[II.] Did the court err in dismissing Appellant’s appointed PCRA
attorney when Attorney provided ineffective assistance of counsel
by failing to conduct thorough investigation and amend
Appellant’s pro se petition[?]
[III.] Was counsel during suppression hearing and the trial
ineffective for failing to challenge and impeach evidence and
testimony of police officers with evidence of misconduct, fraud and
prior inconsistent statements[?]
[IV.] Was counsel ineffective for failing to seek recusal of judge
pending criminal proceedings and for not objecting to the same
judge presiding over the suppression hearing and judge only
trial[?]
[V.] Did layered ineffective assistance of counsel victimize and
prejudice Appellant during every single phase of his legal
proceedings[?]
[VI.] Did counsel’s failure to challenge the discretionary aspects
of sentencing prejudice Appellant, depriving him of effective legal
assistance, resulting in an excessive sentence[?]
[VII.] Did counsel render ineffective assistance of counsel for
failing to object to sentencing judge’s abuse of discretion,
prosecutor’s submission of incorrect criminal history and
imposition of excessive sentence[?]
Appellant Brief at 4, 7, 10, 14, 16, 17, 19 (unnecessary capitalizations
omitted).
We begin our analysis by addressing Appellant’s third, fourth, sixth, and
seventh issues on appeal. In this regard, the Commonwealth points out that
these issues are waived because Appellant did not raise them before the PCRA
court. Upon our review of the record, as detailed above, we agree. Under
Pa.R.A.P. 302, “[i]ssues not raised in the lower court are waived and cannot
be raised for the first time on appeal.” Pa.R.A.P. 302(a).
Similarly, we are constrained to agree with the Commonwealth that
Appellant’s second and fifth issues challenging the effectiveness of appointed
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counsel are waived.6 In Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super.
2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014), we explained that
“claims of PCRA counsel’s ineffectiveness may not be raised for the first time
on appeal.” Henkel, 90 A.3d at 20 (citations omitted).
With the foregoing in mind, we now address the only issue that Appellant
has preserved for our review: whether the PCRA court failed to comply with
Rule 907(1) in dismissing Appellant’s PCRA petition. Rule 907 provides in
relevant part:
(1) the judge shall promptly review the petition, any answer by
the attorney for the Commonwealth, and other matters of record
relating to the defendant’s claim(s). If the judge is satisfied from
this review that there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-
conviction collateral relief, and no purpose would be served by any
further proceedings, the judge shall give notice to the parties of
the intention to dismiss the petition and shall state in the notice
the reasons for the dismissal. The defendant may respond to the
proposed dismissal within 20 days of the date of the notice. The
judge thereafter shall order the petition dismissed, grant leave to
file an amended petition, or direct that the proceedings continue.
Pa.R.Crim.P. 907(1). Here, no genuine issues concerning any material fact
were raised by Appellant’s PCRA petition and, as a result, the PCRA court
correctly determined that no purpose would be served by any further
proceedings or hearings. Thus, as we set forth earlier, on September 19,
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6 Although we are aware of this Court's recent decision in Commonwealth v.
Shaw, 214 A.3d 283 (Pa. Super. 2019), we find it readily distinguishable. In
Shaw, this Court concluded that Shaw’s claim of PCRA counsel’s
ineffectiveness was not waived on appeal because prior PCRA counsel
“abandoned the only claim [Shaw] had presented at the PCRA hearing” by
failing to include it in Shaw’s Rule 1925(b) statement. Id. at 292-93. Here,
by contrast, except for the claims addressed below, Appellant did not preserve
the remaining claims by raising them in the PCRA court.
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2018, the PCRA court issued a Rule 907 notice, wherein it granted Appellant
twenty days to respond. Upon receiving and considering the response, the
PCRA court dismissed the petition on November 14, 2018.
Under the facts and circumstances of this case, we do not discern any
error. Appellant had raised a single claim in his pro se PCRA petition, which
challenged a previously-raised suppression issue. A petitioner must plead and
prove his allegation of error has not been previously litigated or waived.
Commonwealth v. Bridges, 886 A.2d 1127, 1130 (Pa. 2005) (citing 42
Pa.C.S.A. § 9543(a)(3)). “A claim previously litigated in a direct appeal is not
cognizable under the PCRA.” Commonwealth v. Hutchins, 760 A.2d 50, 55
(Pa. Super. 2000). As mentioned, the suppression issue giving rise to the
instant PCRA petition was previously litigated pre-trial and on direct appeal.
Accordingly, the trial court did not err and, contrary to Appellant’s argument,
fully and properly complied with the requirements of Rule 907. Appellant,
therefore, is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2019
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