Com. v. Staton, F. ( 2020 )

J-S07027-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
FLINT STATON :
:
Appellant : No. 1030 EDA 2019
Appeal from the PCRA Order Entered March 22, 2019
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000671-2013,
CP-39-CR-0000681-2013
BEFORE: NICHOLS, J., KING, J., and STRASSBURGER, J.*
MEMORANDUM BY KING, J.: FILED MARCH 27, 2020
Appellant, Flint Staton, appeals from the order entered in the Lehigh
County Court of Common Pleas, which denied his first petition brought
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its opinion, the PCRA court accurately set forth the relevant facts and
procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises five issues for our review:
WHETHER [THE] APPEAL SHOULD BE DISMISSED GIVEN
THE BRIGHT-LINE DIRECTIVE OF COMMONWEALTH V.
WALKER, [646 PA. 456, 185 A.3D 969 (2018)] BECAUSE
ONE NOTICE OF APPEAL WAS FILED FOR TWO DOCKET
NUMBERS?
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
J-S07027-20
DID THE PCRA COURT ERR BY CONCLUDING THAT TRIAL
COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO
CHALLENGE THE CREDIBILITY AND MOTIVE OF THE VICTIM
BY CROSS-EXAMINING HER ON AN EXTRA-MARITAL
AFFAIR?
DID THE PCRA COURT ERR BY CONCLUDING THAT TRIAL
COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT
TO VOLUMINOUS EXHIBITS THAT WERE IRRELEVANT AND
MORE PREJUDICIAL THAN PROBATIVE AND BY FINDING
TRIAL COUNSEL’S STRATEGY TO HAVE BEEN REASONABLE?
DID THE PCRA COURT ERR BY CONCLUDING THAT TRIAL
COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBTAIN
OR INTRODUCE A RECEIPT THAT WOULD HAVE
CORROBORATED [APPELLANT]’S TESTIMONY?
DID THE PCRA COURT ERR BY CONCLUDING COUNSEL WAS
NOT INEFFECTIVE FOR FAILING TO SEEK REVIEW ON
DIRECT…APPEAL OF THE TRIAL COURT’S RULING ON A
MOTION IN LIMINE; THE COURT’S RULING PERMITTED
PRIOR BAD ACTS TO BE INTRODUCED TO THE JURY[?]
(Appellant’s Brief at 6-7).
In his first issue, Appellant concedes the Commonwealth filed charges
against him at two separate criminal docket numbers. Nevertheless, Appellant
asserts that all charges were heard together at the preliminary hearing and at
every subsequent judicial proceeding, including his jury trial. Appellant
maintains he filed a single direct appeal from the judgment of sentence at
both underlying docket numbers, which this Court disposed of at one Superior
Court docket number. Appellant contends he filed the current PCRA petition
listing both underlying docket numbers, and the PCRA court denied relief at
both underlying docket numbers in a single order. Appellant highlights the
court’s explanation of appellate rights in the order denying PCRA relief, which
-2-
J-S07027-20
states: “The defendant is advised that he has the right to appeal this order to
the Superior Court of Pennsylvania by filing a notice of appeal with the Clerk
of Courts of Lehigh County.” (Appellant’s Brief at 11) (emphasis in original).
Appellant emphasizes that this Court has found a breakdown in the operations
of the court, where the trial court misinformed an appellant of his right to file
a notice of appeal even though that appellant had been sentenced at two
criminal docket numbers. Appellant insists there would be no prejudice to the
Commonwealth by allowing the appeal to proceed, and he claims the
Commonwealth has no objection to merits review. Appellant concludes this
Court should decline to quash the appeal under Walker, and review the merits
of his appeal. We agree.
On June 1, 2018, our Supreme Court held in Walker, supra, that the
common practice of filing a single notice of appeal from an order involving
more than one docket will no longer be tolerated, because the practice violates
Pa.R.A.P. 341, which requires the filing of “separate appeals from an order
that resolves issues arising on more than one docket.” Walker, supra at
469, 185 A.3d at 977. The failure to file separate appeals under these
circumstances generally “requires the appellate court to quash the appeal.”
Id. Absent extraordinary circumstances such as fraud or some breakdown in
the processes of the court, this Court has no jurisdiction to entertain an
untimely appeal. Commonwealth v. Patterson, 940 A.2d 493 (Pa.Super.
2007), appeal denied, 599 Pa. 691, 960 A.2d 838 (2008).
-3-
J-S07027-20
In Commonwealth v. Stansbury, 219 A.3d 157 (Pa.Super. 2019), this
Court declined to quash an appeal under Walker, where the PCRA court had
misinformed the appellant about the manner in which to take an appeal. This
Court explained:
In the case sub judice, the PCRA court advised [a]ppellant
that he could appeal the dismissal of his PCRA petition by
filing within thirty days a notice of appeal from its order.
The court, still referring to its order that disposed of a PCRA
petition pending at two separate docket numbers, again
utilized the singular in advising [a]ppellant where to file
“Said notice of appeal.” Order, 1/4/19 (emphasis added).
Hence, while Walker required that [a]ppellant file separate
notices of appeal at each docket number, the PCRA court
informed [a]ppellant that he could pursue appellate review
by filing a single notice of appeal.
We conclude that such misstatements as to the manner that
[a]ppellant could effectuate an appeal from the PCRA court’s
order amount to a breakdown in the court operations such
that we may overlook the defective nature of [a]ppellant’s
[otherwise] timely notice of appeal rather than quash
pursuant to Walker. Therefore, we shall proceed to
address the substance of this appeal.
Id. at 160 (internal footnote omitted) (emphasis in original).
Instantly, the PCRA court denied relief by order entered March 22, 2019.
The order listed both underlying criminal docket numbers in the caption. The
order states:
AND NOW, this 22nd day of March 2019, upon consideration
of [Appellant’s] petition filed pursuant to the Post-
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (PCRA),
IT IS HEREBY ORDERED that said petition is DENIED and
DISMISSED.
[Appellant] is advised that he has a right to appeal this order
to the Superior Court of Pennsylvania by filing a Notice of
-4-
J-S07027-20
Appeal with the Clerk of Courts of Lehigh County—Criminal
Division, within 30 days of the date of this order. The Clerk
is directed, pursuant to Pa.R.Crim.P. 908(E), to forward a
copy of this order to [Appellant] by certified mail, return
receipt requested.
(Order, filed 3/22/19, at 1). Here, the PCRA court misinformed Appellant
about the manner in which to take an appeal, by using the singular when
referring to Appellant’s ability to file “a” notice of appeal. The court’s
misstatement in this regard constitutes a breakdown in the operations of the
court such that we may overlook the defective nature of Appellant’s otherwise
timely notice of appeal. See Stansbury, supra. Therefore, we decline to
quash the appeal under Walker, and will review the appeal on the merits.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d
319 (2008). 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). If the record supports a post-conviction court’s credibility
determination, it is binding on the appellate court. Commonwealth v.
Dennis, 609 Pa. 442, 17 A.3d 297 (2011).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable James T.
-5-
J-S07027-20
Anthony, we conclude Appellant’s issues two through five merit no relief. The
PCRA court opinion comprehensively discusses and properly disposes of those
questions. (See Opinion in Support of Order, filed March 22, 2019, at 2-8)
(finding: (issue 2) at PCRA hearing, Appellant testified that he told trial
counsel Victim was having affair with ex-employee of Appellant’s seafood
business;2 trial counsel testified that Appellant did not mention any affair with
that person, but told trial counsel Victim was having affair with Sergeant
Hoats, who was affiant in this case; trial counsel testified that Appellant
provided counsel no evidence of alleged affair besides Appellant’s observation
that Sergeant Hoats touched Victim’s arm after one court proceeding in this
matter; trial counsel did not have reason to believe Victim was having affair
with Sergeant Hoats based solely on Appellant’s suspicions; further, Appellant
failed to demonstrate outcome of trial would have differed if counsel had
questioned Victim about alleged affair; thus, trial counsel was not ineffective
on this ground; (issue 3) counsel had reasonable trial strategy for declining
to object to admission of numerous exhibits which depicted various items in
trunk of Appellant’s car; Appellant contended that he did not know gun was in
his car; counsel testified at PCRA hearing that allowing jury to view so many
random, innocuous items in Appellant’s trunk would support Appellant’s
____________________________________________
2Appellant claims the affair gave Victim a motive to fabricate the allegations
against Appellant, and Appellant wanted trial counsel to cross-examine Victim
about the affair to undermine her credibility.
-6-
J-S07027-20
position; thus, counsel was not ineffective on this ground; (issue 4) trial
counsel testified he could not recall if Appellant had told him about Wawa
receipt prior to trial, but counsel did not believe receipt would have been
helpful at trial in any event; Appellant testified that he went to Wawa at
approximately 4:00 a.m., one hour before police pulled him over; thus, Wawa
receipt would not have disproved allegation that Appellant was following
Victim when police stopped him; further, Appellant did not raise alibi defense
alleging he was somewhere else at time police reported seeing Appellant
following Victim; Appellant cannot establish prejudice to succeed on this
ineffectiveness claim; (issue 5) trial counsel testified that he did not raise on
direct appeal trial court’s denial of Appellant’s motion in limine to preclude
“prior bad acts” evidence because after researching issue, trial counsel
believed court properly admitted that evidence to establish course of conduct;
trial court properly admitted evidence of prior bad acts in this case (namely,
PFA and non-consensual sexual encounter between Appellant and Victim that
occurred in 2011), so underlying claim lacks arguable merit; trial counsel was
not ineffective on this ground). Accordingly, we affirm based on the PCRA
court’s opinion.3
Order affirmed.
____________________________________________
3We direct the parties to attach a copy of the PCRA court’s March 22, 2019
opinion to all future filings pertaining to our disposition of this appeal.
-7-
J-S07027-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2020
-8-
Circulated 03/05/2020 11:30 AM
IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA No. CR-671-2013
CR-681-2013
vs.
FLINT STATON,
Defendant
********** ·,
:;::o
:r:rn
--....
r-�
C:J
�
:r...
•
_ ...\ _ .
APPEARANCES: .5�·; ..
''\ .. , ........
:::0
-··
'
;···c) !'.J
N
;::? ··1'
Robert W. Schopf, Esquire, Senior Deputy District Attorney, �,--., -,-,, T\
-��
l
For the Commonwealth z>-;, ::I� ;
.::2.�c:;
.�·-"""'\
487 A.2d 802 (Pa.
1985). To establish a claim of ineffective assistance, a defendant must prove that (1)
the underlying claim is of arguable merit; (2) there was no reasonable basis for
counsel's action or inaction; and (3) the defendant suffered actual prejudice as a result.
1
The defendant initially claimed Attorney Long was ineffective for failing to object to evidence of the
defendant's prior bad acts, but changed his challenge during the course of the PCRA hearing.
2 On December 28, 2018, I issued an order
directing the parties to submit briefs or memorandums of law.
The Commonwealth filed a brief on February 8, 2019. To date, the defendant has not submitted a brief or
memorandum of law.
2
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). A failure to satisfy any prong of
the test for ineffectiveness will require rejection of the claim. Id.An attorney cannot be held ineffective for failing to raise an issue which lacks
merit. Commonwealth v. Koehler, 36 A.3d 121, 140 (Pa. 2012). In determining
reasonableness, the court cannot engage in a hindsight evaluation of counsel's
performance to find other alternatives that were more reasonable. Commonwealth v.
Peterkin, 513 A.2d 373, 381-382 (Pa. 1986). Rather, the test is whether counsel's
decision had any reasonable basis. Id. Finally, actual prejudice is defined as a showing
that but for counsel's action, there is a reasonable probability that the outcome of the
proceeding would have been different. Commonwealth v. Ellis, 662 A.2d 1043, 1047
(Pa. 1995).
1. Pretrial Motions -Attorney Marciano
Attorney Marciano filed pretrial motions on behalf of the defendant, including a
petition for writ of habeas corpus; a motion to suppress the inventory search of the
defendant's vehicle; a motion to suppress statements made by the defendant; a motion
to suppress the February 4, 2013, search warrant for the defendant's car; and a motion
to suppress the search warrants for the defendant's cell phone, laptop, and camera.
The defendant now alleges Attorney Marciano was ineffective for failing to challenge the
initial stop of the defendant's vehicle and the February 1, 2013, arrest warrant, which
was a partial basis for the vehicle stop.
Attorney Marciano testified she did not challenge the arrest warrant because she
did not see any basis for doing so. I agree. At trial, the defendant made much of the
fact that the incident date was listed as February 1, 2013, on the warrant despite the
3
fact that everyone agreed nothing occurred on that date. However, police witnesses
testified that the date was entered in error as the report was filed on February 1, 2013,
for an incident that occurred on January 31, 2013.3 A technical defect in a warrant does
not render a warrant invalid absence a showing of prejudice. Commonwealth v. Benson,
10 A.3d 1268 (Pa.Super. 2010). The defendant has made no such showing especially
considering the affidavit of probable cause lists the correct incident date of January 31,
2013, and contains enough additional facts within the four corners to provide the issuing
authority with a substantial basis for a finding of probable cause. Commonwealth v.
Cramutola, 676 A.2d 1214 (Pa.Super. 1996) (reviewing court does not conduct de novo
review of probable cause determination, but rather is limited to determining whether
there was a substantial basis for the issuing authority's finding of probable cause).
Regarding the stop of the defendant's vehicle, Attorney Marciano believed there
were plenty of facts, including the warrant, to justify pulling the defendant over. Ann
reported to police that the defendant was following her despite an active PFA; the
defendant repeatedly text Ann in violation of the PFA; Sergeant Hoats corroborated
Ann's report by observing the defendant following Ann on the morning the defendant
was pulled over; and, while following the defendant, Sergeant Hoats observed him fail
to signal. Attorney Marciano provided a reasonable basis for her decisions on the
pretrial motions, and I will not find her ineffective for failing to raise additional issues.
2. Credibility and Motive of Ann Staton's Testimony- Attorney Long
This is the only issue the defendant testified to at his PCRA hearing. The
defendant stated Ann was having an affair with Dillon Ciaz, an ex-employee of the
3
Notes of Testimony ("N.T."), Trial Volume I, 2121/15. P.p. 149-150; N.T., Trial Volume Ill, 2/23115, pp.
73-83
4
defendant's seafood business. He stated he told Attorney Long prior to trial about an
affair, and then learned the identity of Mr. Ciaz during trial. The defendant did not
provide any other evidence of an affair.
Attorney Long testified that the defendant advised him prior to trial that Ann was
having an affair, but provided a different name than Mr. Ciaz. The defendant told
Attorney Long that Ann was having an affair with Timothy Hoats, the affiant in this case.
The only evidence the defendant provided to Attorney Long was that he observed
Sergeant Hoats touch Ann's arm following one of the court proceedings in this matter.
Attorney Long did not have reason to believe there was an affair and testified that even
if he did, it would have no bearing on the charges the defendant was facing. I agree with
Attorney Long. Based on the evidence, there does not appear to be any merit to the
defendant's allegation. More importantly, assuming Ann had an affair, the defendant
has not demonstrated that the outcome of his trial would have been different but for
Attorney Long's decision not to question Ann about it.
3. Admission of Exhibits - Attorney Long
The defendant next claims Attorney Long was ineffective for stipulating to the
admission of over 300 exhibits that were irrelevant and prejudicial. Attorney Long
clarified that he did not stipulate to the admission of any exhibits, but agreed he did not
object to their admission. It was the defendant's contention that he did not know the gun
was in his car,4 and Attorney Long believed that allowing all the exhibits in would show
that there were so many random, innocuous items in the defendant's trunk that it was
possible the defendant did not know about the gun. Attorney Long stated he wanted the
4 N.T., Trial Volume IV, 2/24/15, p. 129
5
jury to see all the "messy" stuff. 5 I find this to be a reasonable trial strategy and will not
find Attorney Long ineffective.
4. Exculpatory Evidence - Attorney Long
The defendant next claims Attorney Long was ineffective for failing to obtain a
receipt from Wawa. At trial, the defendant claimed the receipt would have shown where
he was prior to being pulled over by the police to counter the allegation that he was
following Anne.6 The defendant believed the police threw out the receipt. Attorney Long
could not recall if the defendant told him about the receipt prior to trial, but nonetheless,
he did not believe it would have been helpful. I agree. The defendant's trial testimony
was that he went to Wawa around 4:00 a.m.,7 which was over an hour before he was
pulled over. The receipt would not have disproved the allegation that he was following
Ann over an hour later. Additionally, the defendant never raised an alibi defense
alleging he was somewhere else when Sergeant Hoats reported seeing him following
Ann. The defendant has failed to establish he was prejudiced by Attorney Long's failure
to obtain the receipt.
5. Search of Cell Phone - Attorney Long
The defendant next claims Attorney Long did not sufficiently challenge the search
of his cell phone on appeal. Specifically, Attorney Long challenged the scope of the
search warrant on appeal, and argued it was overbroad in permitting retrieval of data
other than text messages, emails, or phone calls. Attorney Long did not specify what
other data, if any, was retrieved.
5 N.T., PCRA Hearing, 12/7/18, p. 32
6
N.T., 2/24/15, p. 163.
7
N.T., 2/24/15, p. 233.
6
As part of his argument, the defendant references the Superior Court's
Memorandum Opinion of October 26, 2015, wherein the Court indicated Attorney Long's
argument on this issue was underdeveloped because he did not specify whether the
police retrieved any evidence from the cell phone other than text messages, emails, or
phone calls. Attorney Long testified at the PCRA hearing that he filed the appeal and
while working on his brief, he realized there was no additional information retrieved from
the cell phone, so he believed there was nothing more to specify. Since no other
evidence was retrieved from the cell phone, Attorney Long's "underdeveloped"
argument would not have changed the outcome of the Superior Court's decision. As
such, the defendant has not established prejudice, and this claim must fail.
6. Motion in Limine - Attorney Long
Finally, the defendant alleges Attorney Long was ineffective for failing to appeal
the denial of his pretrial motion in limine, wherein he sought to preclude the
Commonwealth from introducing evidence of a PFA and of a non-consensual sexual
encounter between the defendant and Ann that occurred on Christmas Day 2011.
Attorney Long testified he did not appeal the decision on the motion in limine
because after researching the issue, he believed that the prior bad acts were properly
admitted into evidence to establish the course of conduct necessary for a charge of
stalking. I find the evidence was properly admitted, so the underlying claim does not
have arguable merit and Attorney Long presented a reasonable basis for not appealing
it. See Commonwealth v. Urrutia, 653 A.2d 706 (Pa.Super. 1995).
7
Conclusion
Based on the foregoing, the defendant is not entitled to relief and his PCRA
petition must be denied.
March 22, 2019
8