Com. v. Bishop, S.

J-S43042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT BISHOP :
:
Appellant : No. 2450 EDA 2021
Appeal from the PCRA Order Entered October 29, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003894-2015
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED APRIL 20, 2023
Scott Bishop appeals from the order denying his timely first petition for
relief pursuant to the Post Conviction Relief Act (PCRA).1 Appellant claims that
both trial counsel and direct appeal counsel were ineffective and argues that
the PCRA court erred in denying Appellant’s petition without a hearing. After
review, we reverse the PCRA court’s order and remand for further
proceedings.
The PCRA court set forth the following factual and procedural history:
On March 28, 2015, Parole Agent Brandon Smith made an
unannounced visit to Appellant at his apartment, where he had
just moved the prior month. After chatting briefly, Smith informed
Appellant that he was due for a drug screening test pursuant to
his parole agreement; Appellant complied. A urine test was then
administered, which came back positive for methamphetamines.
Because this was a violation of the terms of Appellant’s parole, the
Agent handcuffed Appellant and placed him into custody while he
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1 42 Pa.C.S. §§ 9541-9546.
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phoned his supervisor for approval to conduct a search of
Appellant’s property for contraband in light of the positive drug
test.
Once he had obtained approval to search the apartment, Agent
Smith asked Appellant whether he had anything in the home that
Smith should know about, to which Appellant replied that he had
a gun. When prompted, Appellant then told the Agent that the
gun was in the hallway closet. In the closet, Smith detected the
smell of marijuana and observed a black trash bag, inside of which
he found a revolver, some spent shell casings, two electronic
scales, packaging materials and marijuana. In addition to the
marijuana in the closet, parole agents at the scene then recovered
marijuana from Appellant’s bedroom.
Agent Smith called for support from Parole Agent Eric Brown.
Agent Brown arrived and secured the residence. Once inside, he
observed keys on a dresser in Appellant’s bedroom. Brown asked
Appellant where his car was, and Appellant responded that it was
“on the corner.” The vehicle was located; it was registered to
Appellant. While searching Appellant’s vehicle, Agent Brown
recovered bullets in the center console that matched the guns and
bullets which Agent Smith had recovered from Appellant’s closet.
Appellant was charged with prohibited possession of a firearm in
violation of the Uniform Firearms Act, 18 Pa.C.S. § 6105;
possession of marijuana, [35 P.S.] § 780-113(a)(32). On
November 19 and November 25, 2015, Appellant appeared before
the Honorable Daniel J. Anders to litigate his motion to suppress
statements and physical evidence. Judge Anders granted
suppression of Appellant’s statement to Parole Agent Brandon
Smith as to the location of the revolver but denied the suppression
of Appellant’s statement as to the location of his car and denied
suppression of all physical evidence recovered from both the
apartment and the car.
On January 28, 2016, Appellant appeared before [the trial court]
for a waiver trial and was found guilty on all counts. On April 15,
2016, [the trial court] sentenced Appellant to three to eight years
of incarceration, followed by one year of probation. Appellant
timely appealed to the Superior Court, which affirmed Appellant’s
judgment of sentence in an unpublished [memorandum] on June
18, 2018. Commonwealth v. Bishop, 1193 EDA 2016, 2018 WL
3015333 (Pa. Super. filed 2018) (unpublished mem.). The
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Pennsylvania Supreme Court granted Appellant’s petition for
allowance of appeal to address the scope of protection against
self-incrimination offered by the Pennsylvania Constitution
relative to that of the United States Constitution.
Commonwealth v. Bishop, 196 A.3d 129 (Pa. 2018) (per
curiam). In September of 2019, the Supreme Court affirmed the
Superior Court’s order in a 6-1 decision, declining to directly
address the question after determining that it had not been
properly preserved in the courts below. Commonwealth v.
Bishop, 217 A.3d 833 (Pa. 2019).
Appellant timely filed a pro se PCRA petition on June 6, 2020.
Thereafter, the PCRA [c]ourt appointed counsel, who filed an
amended petition on January 22, 2021. After receiving briefs from
the Commonwealth and Appellant, the [PCRA court] gave notice
of its intent to dismiss Appellant’s petition pursuant to
Pa.R.Crim.P. 907, and it dismissed the petition without a hearing
on October 29, 2021.
PCRA Ct. Op., 5/26/22, at 1-3 (citations to the record omitted, formatting
altered). Appellant filed a timely appeal. Both the PCRA court and Appellant
complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review, which we have
reordered as follows:
1. Whether the PCRA court erred by failing to grant an evidentiary
hearing[?]
2. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
that trial counsel was ineffective for failing at the suppression
hearing to distinguish between the protections provided by
Article I, Section 8 of the Pennsylvania Constitution; failing to
object to the Commonwealth’s non-disclosure of Brady[2]
material; and failing to protect [Appellant’s] constitutional
rights pursuant to the Confrontation Clause[?]
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2 Brady v. Maryland, 373 U.S. 83 (1963).
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3. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
that appellate counsel was ineffective for failing to raise the
Article I, Section 8 claim on appeal, leading to a determination
that the claim was waived[?]
4. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
that Appellant’s constitutional rights were violated by trial and
appellate counsel’s deficient performances, the
Commonwealth’s non-disclosure of Brady material, and
unreasonable search and seizure[?]
Appellant’s Brief at 9 (formatting altered).
In his first issue, Appellant contends that the PCRA court erred when it
dismissed Appellant’s PCRA petition without first holding an evidentiary
hearing. Appellant claims that he “raised significant claims of trial and
appellate counsels’ ineffectiveness and violations of his constitutional
rights[,]” and Appellant further describes those claims as “legitimate, based
on fact and supported by legal precedent.” Appellant’s Brief at 22. As noted
by the PCRA court, an evidentiary hearing in this matter would have revolved
around the question of “whether deeper exploration of the field [drug] test
might have led to its suppression and consequently the suppression of the
statements and the contraband, which in this case would have made it
virtually impossible for the Commonwealth to convict Appellant.” PCRA Ct.
Op. at 8.
In its Rule 1925(a) opinion, the PCRA court agrees with Appellant and
concedes that it erred when it failed to hold an evidentiary hearing.
Specifically, the PCRA court notes that there are genuine issues of material
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fact that, should they be resolved in Appellant’s favor, may entitle him to
relief. Id. at 8. Accordingly, the PCRA court requests that its order be
reversed and that this case be remanded with instructions to hold an
evidentiary hearing. Id.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citation omitted). “[W]e
apply a de novo standard of review to the PCRA court’s legal determinations.”
Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014) (citation
omitted).
As stated previously, Appellant claims that the PCRA court erred when
it failed to hold an evidentiary hearing before denying his PCRA petition. The
decision of whether to hold a PCRA evidentiary hearing is an exercise of
discretion on the part of the PCRA court, and we review for an abuse of that
discretion. Commonwealth v. Maddrey, 205 A.3d 323, 327 (Pa. Super.
2019).
[T]he right to an evidentiary hearing on a post-conviction petition
is not absolute. It is within the PCRA court’s discretion to decline
to hold a hearing if the petitioner’s claim is patently frivolous and
has no support either in the record or other evidence. It is the
responsibility of the reviewing court on appeal to examine each
issue raised in the PCRA petition in light of the record certified
before it in order to determine if the PCRA court erred in its
determination that there were no genuine issues of material fact
in controversy and in denying relief without conducting an
evidentiary hearing.
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* * *
Generally, if there are factual issues to be resolved, the PCRA
court should hold an evidentiary hearing.
Commonwealth v. Grayson, 212 A.3d 1047, 1054-55 (Pa. Super. 2019)
(citations omitted and formatting altered). This Court has cautioned,
however, that, “an evidentiary hearing is not meant to function as a fishing
expedition for any possible evidence that may support some speculative
claim.” Commonwealth v. Grove, 170 A.3d 1127, 1149 (Pa. Super. 2017).
In the instant case, the determinative issue before us is whether
Appellant’s claim that a challenge to and information concerning the drug test
administered by parole agents “might have led to its suppression and
consequently the suppression of the statements and the contraband, which in
this case would have made it virtually impossible for the Commonwealth to
convict Appellant.” PCRA Ct. Op. at 8. Indeed, Appellant argues that
trial counsel was obligated to insist that the [parole] agent provide
corroborating evidence [as to the positive urine test.] At the very
least, it was incumbent upon trial counsel to inquire of the witness
about the lack of documentation for a positive field test. Although
the field test may not have generated a corresponding written
report, the agent could have provided photographic evidence of
the field test results. Counsel’s omission was not reasonably
designed to advance the interests of [Appellant]. The lack of
documentation for the positive field test undermined the
credibility of the parole agent, yet trial counsel failed to raise this
vital issue during the suppression hearing.
Appellant’s Brief at 15-16.
The PCRA court further noted:
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It may be that no written documentation or photographs exist,
that trying to impeach Agent Smith about it would not have
changed the outcome, and that even if it would have, trial counsel
had latitude to pursue a different strategy. But these are genuine
issues of material fact that, if resolved in Appellant’s favor, could
entitle him to a new proceeding or other relief, be it because there
is exculpatory evidence in the form of favorable written
documentation or photographs or because trial counsel’s strategy
not to impeach the Agent’s credibility was deficient, either of
which could have led to a different outcome.
PCRA Ct. Op. at 8.
On this record, we agree with the PCRA court that Appellant’s challenge
rises to the level of a genuine issue of material fact, as resolution in Appellant’s
favor could entitle him to relief. See Grayson, 212 A.3d at 1054-55.
Accordingly, we reverse the PCRA court’s order and remand this case for the
PCRA court to hold an evidentiary hearing on Appellant’s PCRA petition.3
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2023
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3 In light of our conclusion that the PCRA court erred in denying Appellant’s
petition without a hearing, we do not reach the merits of Appellant’s remaining
issues, as they all relate to whether the results of the field drug test provided
the parole agents with reasonable suspicion to conduct a warrantless search
of Appellant’s residence.
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