Com. v. Kuhns, J. ( 2016 )

J-S33044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON ERIC KUHNS
Appellant No. 1909 WDA 2015
Appeal from the PCRA Order December 1, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005268-2011
BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 29, 2016
Appellant, Jason Eric Kuhns, appeals from the order entered in the
Allegheny County Court of Common Pleas, which dismissed his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its opinion, the PCRA court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issue for our review:
DID THE [PCRA] COURT ERR IN DENYING APPELLANT’S
PCRA PETITION SINCE TRIAL COUNSEL WERE
INEFFECTIVE FOR FAILING TO FILE A MOTION TO
SUPPRESS APPELLANT’S 4/22/11 STATEMENT TO POLICE
____________________________________________
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42 Pa.C.S.A. §§ 9541-9546.
___________________________
*Former Justice specially assigned to the Superior Court.
J-S33044-16
SINCE HE WAS NEVER PROVIDED MIRANDA[2]
WARNINGS, HE ASKED FOR A LAWYER, AND HE WAS
UNDER THE INFLUENCE OF DRUGS WHEN HE MADE THE
STATEMENT; APPELLANT COMMUNICATED ALL OF THE
AFOREMENTIONED TO TRIAL COUNSEL PRIOR TO AND
DURING THE TRIAL, AND ALTHOUGH HIS STATEMENT TO
POLICE WAS UNQUESTIONABLY THE MOST DAMAGING
EVIDENCE AGAINST HIM THAT WAS PRESENTED TO THE
JURY, COUNSEL REFUSED TO ATTEMPT TO SUPPRESS THE
INVOLUNTARY STATEMENT?
(Appellant’s Brief at 3).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190, 1194 (Pa.Super. 2012). Further, a petitioner is not entitled to a
PCRA hearing as a matter of right; the PCRA court can decline to hold a
hearing if there is no genuine issue concerning any material fact, the
petitioner is not entitled to PCRA relief, and no purpose would be served by
any further proceedings. Commonwealth v. Wah, 42 A.3d 335, 338
____________________________________________
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Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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J-S33044-16
(Pa.Super. 2012).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Anthony M.
Mariani, we conclude Appellant’s issue merits no relief. The PCRA court’s
opinion fully discusses and properly disposes of the question presented.
(See PCRA Court Opinion, filed January 14, 2016, at 3-7) (finding: PCRA
court did not conduct hearing because facts necessary to resolve PCRA
petition were present in trial record; substantial evidence was presented at
trial to prove police properly read Appellant his Miranda warnings, that
Appellant did not request to speak with counsel, and that Appellant was not
under influence of narcotics during interview; Detective Sherwood testified
at trial that, prior to interviewing Appellant on April 22, 2011, Detective read
Appellant his Miranda rights direct from Pittsburgh Police Department’s
form, Detective personally observed that Appellant did not exhibit signs that
he was under influence of narcotics, Detective asked Appellant if he
understood his Miranda rights and Appellant answered in affirmative and
indicated his response on Miranda form, Detective informed Appellant that
he could have a lawyer present and Appellant stated he understood and his
response was noted on Miranda form, Detective asked Appellant if he
wished to waive Miranda rights and Appellant responded “yes,” which
Detective indicated on Miranda form, and Appellant signed his name at
bottom of Miranda form and initialed each page of form; Detective’s trial
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J-S33044-16
testimony indicates she properly mirandized Appellant prior to his interview
on April 22, 2011; prior to any questioning, Detective also informed
Appellant he had right not to answer any questions, that anything he said
could be used against him in court, and that he was entitled to attorney and
one would be appointed to represent Appellant if he could not afford
attorney; Appellant indicated he was aware of these rights and voluntarily
waived them; Appellant’s claim that he was under influence of narcotics at
time of April 22, 2011 interview is unsupported by evidence; trial counsel
was not ineffective because court would have properly denied suppression
motion based on Appellant’s meritless issues). The record supports the
PCRA court’s decision; therefore, we have no reason to disturb it.
Accordingly, we affirm on the basis of the PCRA court’s opinion.
Order affirmed.
Judge Olson concurs in the result.
Justice Fitzgerald files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2016
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Circulated 05/26/2016 03:05 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTII OF PENNSYLVANIA )
)
VS. ) cc NO. 2011-5268
)
JASON ERIC KUHNS, )
)
Petitioner. )
)
OPINION
Mariani, J.
This is an appeal of a denial of Petitioner, Jason Eric Kuhn's, petition pursuant to
the Post-Conviction Relief Act (hereinafter referred to as "PCRA"), 42 Pa.C.S. § 9541, et
seq. In this case, Petitioner was convicted of First Degree Murder, Burglary, Robbery,
Receiving Stolen Property and Conspiracy. This Court imposed a term of life
imprisonment relative to the murder conviction and a consecutive aggregate term of not
less than 15 Y2 nor more than 31 years relative to the remaining convictions. He appealed
that sentence and the Superior Court affirmed his conviction and sentence on June 3,
2014 (1972 WDA 2012). Petitioner then filed a pro se PCRA on August 6, 2015.
Counsel was appointed and an Amended PCRA Petition was filed on October It, /2015.
The Commonwealth filed a response to the Amended PCRA Petition on November 3,
2015. On December 1, 2015, this Court entered an order denying the PCRA petition. A
timely appeal was then filed.
Petitioner's only claim is that trial counsel rendered ineffective assistance of
counsel for failing to file a motion to suppress his statements to police on April 22, 2011
because he was not Mirandized, requested counsel and he was under the influence of
drugs at the time he made the statements. As noted by the Superior Court and this Court
in its original opinion on direct appeal, during this interview, the defendant admitted
sneaking into the victim's residence through the garage door for the purpose of stealing
money or coins. He said that he was under the influence of drugs when he entered the
residence. He surprised the victim and he struck the victim in the head with a tire iron.
The defendant could not recall how many times he struck the victim. He admitted to
placing bags over the victim's head. He admitted taking the coins and trying to pawn
them at three different locations.
It is well established that counsel is presumed effective and the petitioner bears the
burden of proving ineffectiveness. Commonwealth v. Cooper, 596 Pa. 119, 941 A.2d 655,
664 (Pa 2007). Under the federal constitution, to obtain relief on a claim of ineffective
assistance of counsel, a petitioner must rebut that presumption and demonstrate that
counsel's performance was deficient, and that such performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). As set forth in Commonwealth v. Dermis, 17A.ad297, 301 (Pa.Super. 2011),
[i]n our Commonwealth, we have rearticulated the
Strickland Court's performance and prejudice inquiry as a
three-prong test. Specifically, a petitioner must show: (1)
the underlying claim is of arguable merit; (2) no reasonable
basis existed for counsel's action or inaction; and (3)
counsel's error caused prejudice such that there is a
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reasonable probability that the result of the proceeding
would have been different absent such error.
Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213
(Pa. 2001).
The standard remains the same for claims under Pennsylvania and federal law. A
claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any of these
prongs. 1iu,t1~"Pnt. .. Moreover, the credibility determinations of a trial court hearing a
PCRA petition are binding on higher courts where the record supports such credibility
assessments. Commonwealth v. R. Jolmson, 600 Pa. 329, 356-57, 966 A.2d 523, 539
(2009).
The threshold inquiry in a claim of ineffective assistance of counsel is whether the
issue/argument/tactic which counsel has forgone and which forms the basis for the
assertion of ineffectiveness is of arguable merit. Commonwealth v. Ingram, 404 Pa.
Super. 560, 591 A.2d 734 (Pa.Super. 1991). Counsel cannot be considered ineffective for
failing to assert a meritless claim. Commonwealth v. Tanner. 600 A.2d 201 (Pa.Super.
1991).
Because the facts necessary to resolve the instant PCRA petition were present in
the trial court record, this Court did not convene a hearing relative to the instant PCRA
petition. At trial, substantial evidence was presented establishing that the Petitioner was
Mirandized, that he did not request to speak with counsel and that he was not under the
influence of narcotics at the time of the interview. Accordingly, in this Court's view,
trial counsel could not have rendered ineffective assistance of counsel because the issue
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raised by Petitioner would have been meritless as the suppression motion would have
been properly denied.
Contrary to the allegations made by the Petitioner, Detective Patricia Sherwood
testified during the trial of this case that prior to interviewing the Petitioner on April 22,
2011, she read his Miranda rights to him directly from a Miranda form maintained by the
City of Pittsburgh Police Department. She personally observed that Petitioner was clear-
headed and did not exhibit any signs that he was under the influence of narcotics. She
orally advised Petitioner:
It is my duty to inform you of the rights that you possess
under the law. You cannot be compelled to answer, and
you have the right to refuse to answer any questions asked
of you during this interview or while you're in custody. If
you do answer such questions, the answers given by you
will be used against you in a trial in a court of law at some
later date.
After advising the petitioner of those rights, Detective Sherwood asked Petitioner if he
understood those rights. Petitioner indicated that he did understand his rights and his
response was noted on the Miranda form. She then informed Petitioner that
You're entitled to talk to a lawyer, have a lawyer present
before you decide whether or not to answer any questions,
and while you're answering questions.
If you don't have the money to hire a lawyer, you are
entitled to have lawyer appointed without cost t consult
with you and to have a lawyer present before you decide
whether or not you will answer questions and while you're
answering questions.
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Do you understand this?
Petitioner responded "yeap" and Detective Sherwood wrote his response on the Miranda
form. She further explained
To continue, you can decide at any time before or during
the questioning to exercise those rights by not answering
any further questions or making any further statements, and
if you exercise the right not to answer, the questioning will
stop. Do you understand this?
The petitioner replied "yes". Detective Sherwood then asked the petitioner
Knowing these rights, are you willing to waive your rights
to answer questions without the presence of a lawyer?
The petitioner again replied "yes". Detective Sherwood wrote the petitioner's answers on
the Miranda form and Petitioner signed his name at the bottom of the Miranda form and
inserted his initials on each page of the form.
Detective Sherwood's testimony clearly indicates that she Mirandized the
petitioner prior to his incriminating interview. In Miranda v. Arizona, 384 U.S. 436, 'f1I-
479 (1966), the United States Supreme Court explained:
To summarize, we hold that when an individual is taken
into custody or otherwise deprived of his freedom by the
authorities in any significant way and is subjected to
questioning, the privilege against self-incrimination is
jeopardized. Procedural safeguards must be employed to
protect the privilege, and unless other fully effective means
are adopted to notify the person of his right of silence and
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to assure that the exercise of the right will be scrupulously
honored, the following measures are required. He must be
warned prior to any questioning that he has the right to
remain silent, that anything he says can be used against him
in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will
be appointed for him prior to any questioning if he so
desires. Opportunity to exercise these rights must be
afforded to him throughout the interrogation. After such
warnings have been given, and such opportunity afforded
him, the individual may knowingly and intelligently waive
these rights and agree to answer questions or make a
statement. But unless and until such warnings and waiver
are demonstrated by the prosecution at trial, no evidence
obtained as a result of interrogation can be used against
him.
As set forth in Commonwealth v. Best, 789 A.2d 757, 762 (Pa. Super. 2002):
[T]he protective provisions of Miranda prohibit the
continued interrogation of an interviewee in police custody
once he or she has invoked the right to remain silent and/or
to consult with an attorney. Commonwealth v Rucci, 543
Pa. 261, 670 A.2d 1129 (Pa.Super. 1996). "Interrogation"
means police questioning or conduct calculated to,
expected to, or likely to evoke an admission.
Commonwealth v Brown, 551 Pa. 465, 711 A.2d 444
(Pa.Super. 1998). Where an interviewee elects to give an
inculpatory statement without police interrogation,
however, the statement is "volunteered" and not subject to
suppression, notwithstanding the prior invocation of rights
under Miranda. Id; Commonwealth v. Bracey, 501 Pa. 356,
461 A.2d 775 (Pa.Super. 1993); Commonwealth v. Abdul-
Salaam, 544 Pa. 514, 678 A.2d 342 (Pa.Super. 1992).
Interrogation occurs when the police should know that their
words or actions are reasonably likely to elicit an
incriminating response, and the circumstances must reflect
a measure of compulsion above and beyond that inherent in
custody itself. See Commonwealth v. Fisher, 564 Pa. 505,
769 A.2d 1116. (Pa.Super. 2001)(emphasis supplied).
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In this case, the record reveals that, Detective Sherwood warned Petitioner prior to
any questioning that he had the right to not answer any of her questions, i.e, remain silent.
She advised him that anything he said to her could be used against him in a court of law.
She informed him that he had the right to the services of an attorney, and that if he could
not afford an attorney, one would be appointed to represent him prior to any questioning.
Petitioner indicated that he was aware of these rights and he voluntarily waived him. His
claim that he was not informed of his Miranda rights and requested counsel is baseless.
His claim that he was under the influence of narcotics at the time of the interview is self-
serving and unsupported by any additional evidence. This Court gives no credence to
Petitioner's self-serving assertion. Accordingly, had trial counsel filed a motion seeking
to suppress Petitioner's statements of April 22, 2014, such motion would have been
denied as meritless. Therefore, trial counsel did not render ineffective assistance of
counsel and the PCRA petition was properly denied.
By the Court:
Date: ~':JJ4-, '20(°0
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