Com. v. Doll, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES ANDREW DOLL :
:
Appellant : No. 1659 MDA 2022
Appeal from the PCRA Order Entered November 2, 2022
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001117-2018
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 08, 2023
Appellant James Andrew Doll appeals from the order denying his timely
first Post Conviction Relief Act1 (PCRA) petition. Appellant argues that his trial
counsel2 was ineffective for failing to argue that Appellant’s then-wife did not
have authority to consent to the search of Appellant’s computers. We affirm.
The underlying facts of this matter are well known to the parties. See
Commonwealth v. Doll, 2074 MDA 2019, 2020 WL 5888194, at *1-3 (Pa.
Super. filed Oct. 5, 2020) (unpublished mem.). Briefly, on August 4, 2017,
the Pennsylvania State Police executed a search warrant at Appellant’s home
for computers and other electronic devices that may contain child
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 Steve Rice, Esq. (trial counsel) represented Appellant at the suppression
hearing, the guilty plea and sentencing hearing, and on direct appeal.
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pornography. At that time, Appellant’s then-wife was present in the home
and she consented to both the seizure of Appellant’s electronic devices and
the search of their contents. As a result of the search, Appellant was
subsequently charged with child pornography and related offenses.
Appellant filed a motion to suppress the nine videos that the police
recovered from the seized computers, which the trial court denied. Appellant
subsequently entered a conditional guilty plea to nine counts of child
pornography, and one count each of aggravated indecent assault: complainant
less than 16 years of age, aggravated assault without consent, indecent
assault: complainant less than 16 years, indecent assault without consent,
interception of communications, and corruption of minors.3 As part of his plea
agreement, Appellant reserved his right to appeal the denial of his suppression
motion. On December 4, 2019, the trial court sentenced Appellant to an
aggregate term of seven to twenty-one years’ incarceration.
Appellant filed a direct appeal challenging the denial of his suppression
motion on several grounds. Among other things, Appellant argued that the
suppression court erred in concluding that his wife had authority to consent
to the seizure of Appellant’s electronic devices and the search of their
contents. See id. at *3-4. On appeal, a prior panel of this Court concluded
that the suppression court did not err in denying Appellant’s motion, albeit on
different grounds, and affirmed his judgment of sentence. See id. at *4-9,
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3 18 Pa.C.S. §§ 6312(d); 3125(a)(1); 3125(a)(8); 3126(a)(1); 3126(a)(8);
5703(1); and 6301(a)(1)(ii), respectively.
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*6 n.7. Specifically, this Court concluded that Appellant’s wife had actual
authority to consent to the search of the computers because Appellant and his
wife “generally shared joint access to and control over the house and the
electronics. Although some computers were used primarily by [Appellant],
the record reflects that [Appellant’s wife] always had access.” See id. at *6
(citations omitted and formatting altered). The Court also concluded that
Appellant’s wife had apparent authority to consent to the searches. See id.
at *6 n.8 (noting that this Court “need not fully address the issue of apparent
authority[,]” but stating that it “would also conclude that, based on the
testimony presented at the suppression hearing, the officers could reasonably
believe that [Appellant’s wife] had apparent authority to provide consent”
(citations omitted)). After this Court affirmed Appellant’s judgment of
sentence, Appellant did not seek further review with our Supreme Court.
On June 28, 2021, Appellant filed a timely, counseled PCRA petition in
which he argued that trial counsel was ineffective for failing to argue that
Appellant’s then-wife lacked authority to consent to the seizure and search of
the computers because these items were Appellant’s personal property and
not marital property. See PCRA Pet., 6/28/20, at ¶¶ 15-22, R.R. at 45a-47a.4
On May 13, 2022, the PCRA court held an evidentiary hearing. Marvin
Doll, Appellant’s father, testified that he had given a desktop computer to
Appellant as a gift and that Appellant inherited the laptop computer from his
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4 We may cite to the reproduced record for the parties’ convenience.
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uncle. N.T. PCRA Hr’g, 5/13/22, at 5-11. Appellant corroborated this
testimony. Id. at 14. Appellant further testified that he sent a letter to trial
counsel informing him that these computers were his personal property and
not marital property. Id. at 14-17. Trial counsel testified that he believed
that the controlling issue for the suppression motion was whether Appellant’s
wife had the authority to consent to the search, and not the status of the
computers as personal or marital property. Id. at 33-34. Trial counsel
explained that the prior panel of this Court agreed by concluding that the
computers’ status as marital property was a not controlling issue, even though
the prior panel affirmed the suppression order. Id. at 31-32, 34.
On November 2, 2022,5 the PCRA court issued an opinion and order
denying Appellant’s PCRA petition. Therein, the PCRA court reiterated that a
prior panel of this Court concluded that Appellant’s then-wife had common
authority over the marital home, and that therefore, she had the authority to
consent to search and seizure of the electronic devices in the home. See
PCRA Ct. Op. & Order, 11/2/22, at 5 (citing Doll, 2020 WL 5888194, at *6 &
n.7). Accordingly, the PCRA court concluded that Appellant failed to establish
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5 We note that the PCRA court’s opinion and order was time-stamped and
entered on the docket on November 1, 2022, but the docket entries reflect
that the PCRA court served Appellant with a copy of this order on November
2, 2022. See Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super.
2000) (stating that “[i]n a criminal case, the date of entry of an order is the
date the clerk of courts enters the order on the docket, furnishes a copy of
the order to the parties, and records the time and manner of notice on the
docket” (citations omitted)); see also Pa.R.Crim.P. 114(C)(2)(c); Pa.R.A.P.
108(a)(1), (d)(1). We have amended the caption accordingly.
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the arguable merit prong of the ineffective assistance of counsel test. See
id.; see also id. at 5-7 (concluding that Appellant also failed to establish the
reasonable basis and prejudice prongs).
Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. The PCRA court filed a Rule 1925(a) opinion adopting the
reasoning of its November 2, 2022 opinion and order. See PCRA Ct. Op.,
12/19/22, at 1-3.
On appeal, Appellant raises the following issues for review:
1. Did the [PCRA c]ourt err and commit an abuse of discretion in
dismissing [Appellant’s PCRA petition] based upon a finding
that the claim lacked arguable merit and did not result in
prejudice based on footnotes from the Superior Court’s
[memorandum] on direct appeal because the footnotes were
dicta and decided an issue which the parties had not argued or
briefed, and thus was not controlling authority?
2. Did the [PCRA c]ourt err and commit an abuse of discretion in
dismissing the PCRA [petition] due to finding that [trial
counsel] had a reasonable strategic basis to not seek to reopen
the record or reconsideration based upon evidence brought to
the attention of [trial counsel] after the suppression hearing
which refuted the notion that Appellant’s [then-]wife had actual
authority to consent to the search and seizure of computers
alleged to contain evidence and contraband, and which
undermined the repeated legal conclusions of the suppression
court, because there would be nothing improper about seeking
to reopen the record before the decision was made or seeking
reconsideration after it was made, and failing to do so denied
[Appellant] the ability to litigate this issue?
Appellant’s Brief at 5.
Appellant’s issues are related, therefore we address them together.
First, Appellant argues that trial counsel was ineffective for failing to present
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evidence at the suppression hearing (or in a motion for reconsideration) to
establish that Appellant’s computers were his personal property, and not
marital property. Id. at 12-18. In support, Appellant claims that he informed
trial counsel that the computers were gifts, which are not marital property.
Id. at 13 (citing 23 Pa.C.S. § 3501(a)(3); Anzalone v. Anzalone, 835 A.2d
773 (Pa. Super. 2003); Smith v. Smith, 653 A.2d 1259 (Pa. Super. 1995)).
However, Appellant notes that trial counsel declined to make the argument at
the suppression hearing that the computers were Appellant’s personal
property, and instead argued that Appellant’s then-wife lacked authority to
consent to a search of those computers, even if the devices were marital
property. Id. at 14.
Appellant explains that after the suppression hearing, but before the
suppression court rendered its decision, Appellant provided trial counsel with
evidence to show that the computers were gifts. Id. at 13-14, 18. Appellant
contends that trial counsel failed to supplement the record with this evidence
before the suppression court announced its decision or to present this
evidence in a motion for reconsideration of the order denying his suppression
motion. Id. at 14, 16.
Appellant asserts that his claim has arguable merit because the
suppression court ultimately denied relief based on its conclusion that the
computers were marital property and trial counsel had no reasonable basis for
failing to contest that conclusion. Id. at 16-18. Additionally, Appellant
contends that he was prejudiced by trial counsel’s error because Appellant
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would not have pled guilty if the trial court had granted his motion to suppress.
Id. at 14-15.
Appellant also argues that the PCRA court erred by relying on dicta in
this Court’s memorandum decision addressing Appellant’s direct appeal to
conclude that Appellant’s ineffectiveness claim lacked arguable merit. Id. at
15. Specifically, Appellant contends that the PCRA court cited footnotes in
which the prior panel determined that the police could have reasonably
believed that Appellant’s then-wife had apparent authority to consent to a
search of the computers. Appellant claims that this conclusion was dicta
because the issue of his then-wife’s apparent authority to consent to a search
had not been raised on appeal, the parties had not briefed that issue, and this
Court “acknowledged [that conclusion] to be dicta and the issue was ‘not fully
address[ed].’” Id. (quoting Doll, 2020 WL 5888194, at *6 n.8).
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). This
Court applies a de novo standard of review to the PCRA court’s legal
determinations. Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa.
2014).
[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
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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.
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
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.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Sandusky, 203 A.3d at 1043-44 (citations omitted and formatting altered).
“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. Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Bickerstaff, 204 A.3d 988, 992 (Pa. Super. 2019)
(citations omitted and formatting altered).
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The law of the case doctrine is “a family of rules which embody the
concept that a court involved in the later phases of a litigated matter should
not reopen questions decided by another judge of that same court or by a
higher court in the earlier phases of the matter.” Commonwealth v. Fears,
86 A.3d 795, 815 n.23 (Pa. 2014) (citation and quotation marks omitted).
In the PCRA context, our Supreme Court has recognized that although
claims of ineffective assistance of counsel “are distinct from those claims that
are raised on direct appeal[,]” an ineffectiveness claim “may fail on the
arguable merit or prejudice prong[s] for the reasons discussed” by our
appellate courts in addressing the merits of the underlying claim on direct
appeal. Commonwealth v. Collins, 888 A.2d 564, 573 (Pa. 2005); see also
Bickerstaff, 204 A.3d at 993-94 (concluding that the defendant’s claim that
trial counsel was ineffective for failing to conduct an adequate investigation
into a witness lacked arguable merit because this Court had concluded on
direct appeal that the defendant’s claim of after-discovered evidence
regarding the same witness was meritless); Commonwealth v. Coon, 26
A.3d 1159, 1164 (Pa. Super. 2011) (explaining that this Court’s prior ruling
that a missing evidence jury instruction was not warranted was the law of the
case and the defendant was not entitled to relief on a claim of ineffective
assistance of counsel for failing to request that jury instruction).
It is well-established that “dicta is generally regarded as information in
an opinion which is not necessary to the determination of the case.”
BouSamra v. Excela Health, 210 A.3d 967, 976 n.5 (Pa. 2019) (citation and
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quotation marks omitted); see also In re Kenin’s Trust Estate, 23 A.2d
837, 842 (Pa. 1942) (explaining that “[t]he decision in [a] case must be
interpreted in the light of the facts of that case. . . . [I]n every case what is
actually decided is the law applicable to the particular facts; all other legal
conclusions therein are but obiter dicta” (citations and quotation marks
omitted)). However, our Supreme Court has also explained that “where a
decision rests on two or more grounds equally valid, none may be relegated
to the inferior status of obiter dictum.” Commonwealth v. Reed, 971 A.2d
1216, 1220 (Pa. 2009) (citation and some formatting omitted). In Reed, the
defendant argued in his PCRA petition that appellate counsel was ineffective
for failing to develop his claim that the trial court erred by admitting evidence
of the defendant’s prior bad acts on direct appeal. Id. at 1219-20. However,
on direct appeal, this Court found that the defendant’s prior bad acts claim
was waived, but this Court also addressed that claim on the merits. Id.
Therefore, our Supreme Court held that this Court’s alternative holding that
concerning the merits of defendant’s prior bad acts claim “was a valid holding
that constitutes the law of the case, constraining” this Court on PCRA review.
Id. at 1220 (citation and footnote omitted); see also id. at 1227.
Here, the PCRA court explained:
[Appellant] has not met the first prong of the
Strickland/Pierce[6] analysis — that the underlying legal claim
has arguable merit. Although the suppression court based its
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6 Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987).
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determination of the suppression motion on the foundation that
the devices were marital property, the Superior Court, while
reaching the same result, did not. Rather, the Superior Court
found that “[b]ased on the totality of circumstances, . . .
[Appellant’s spouse] possessed common authority over the
marital home and the electronics at issue, and therefore had
authority to consent to the search and seizure.” [Doll, 2020 WL
5888194, at *6] (internal citations omitted). In a footnote
contained in its [memorandum], the Superior Court explained that
although the suppression court’s reasoning was grounded on
[Appellant’s] spouse possessing authority to consent based on the
devices being marital property, it reached the same conclusion for
reasons not considered by the suppression court, which a
reviewing court may do. See id. at [*6 n.7]. Accordingly, we find
that even if [trial] counsel had managed to place the marital status
of the two computers before the suppression court and/or the
Superior Court, the outcome would not have changed. Therefore,
the underlying legal argument lacks merit.
PCRA Ct. Op. & Order, 11/2/22, at 5 (some citations omitted).
Based on our review of the record, we find that the PCRA court’s
conclusions are based on the record and are free of legal error. See
Sandusky, 203 A.3d at 1043. First, the record belies Appellant’s claim that
the issue of apparent authority was not before the prior panel of this Court.
See Doll, 2020 WL 5888194, at *4 (stating that “[Appellant] asserts that
[Appellant’s then-wife] lacked apparent authority to consent to the search”
(citation omitted and emphasis added)). As previously noted, the prior panel
of this Court determined that Appellant’s wife had both actual and apparent
authority to consent to the search of Appellant’s computers. See id. at *4-6,
*6 nn.7-8. The prior panel did not indicate that its alternative holding
regarding apparent authority was dicta. See id. Because the prior panel’s
decision rests on two equally valid grounds, neither can be considered dicta
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and both constitute the law of the case. See Reed, 971 A.2d at 1220; cf.
BouSamra, 210 A.3d at 976 n.5 (explaining that dicta is “information in an
opinion which is not necessary to the determination of the case” (citation and
quotation marks omitted)). Therefore, pursuant to the law of the case
doctrine, Appellant’s underlying claim that his then-wife lacked authority to
consent to the search of the computers because they were not marital
property lacks arguable merit.7 See Reed, 971 A.2d at 1220, 1227; see also
Collins, 888 A.2d at 573; Bickerstaff, 204 A.3d at 993-94; Coon, 26 A.3d
____________________________________________7 Additionally, even if the law of the case doctrine did not apply here,
Appellant’s ineffectiveness claim lacks arguable merit. The United States
Supreme Court has explained:
Common authority is, of course, not to be implied from the mere
property interest a third party has in the property. The authority
which justifies the third-party consent does not rest upon
the law of property, with its attendant historical and legal
refinements, but rests rather on mutual use of the property
by persons generally having joint access or control for most
purposes, so that it is reasonable to recognize that any of the co-
inhabitants has the right to permit the inspection in his own right
and that the others have assumed the risk that one of their
number might permit the common area to be searched.
United States v. Matlock, 415 U.S. 164, 171 n.7 (1974) (citations omitted
and emphases added); see also Commonwealth v. Basking, 970 A.2d
1181, 1188 (Pa. Super. 2009) (explaining that “the concept of common
authority is based on mutual use of the property rather than a mere property
interest” (citations omitted and formatting altered)). Therefore, even if
Appellant could establish that the computers were his personal property, he
would not be entitled to relief because his wife had access to the computers
and Appellant provided her with the password to computers when she needed
to use them. See Doll, 2020 WL 5888194, at *5. Trial counsel cannot be
deemed ineffective for failing to meritless claim. See Bickerstaff, 204 A.3d
at 992.
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at 1164. For these reasons, Appellant is not entitled to relief on his claims.
Accordingly, we affirm.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/08/2023
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