Com. v. Fairman, S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAUN CASEY FAIRMAN, :
:
Appellant : No. 1670 WDA 2019
Appeal from the PCRA Order Entered October 2, 2019
in the Court of Common Pleas of Indiana County
Criminal Division at No(s): CP-32-CR-0001275-2012
BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 21, 2020
Shaun Casey Fairman (“Fairman”) appeals from the Order denying his
first Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The trial court previously summarized the factual history as follows:
[On May 22, 2012, Jessica Fairman (“Jessica”) obtained a
Protection from Abuse Order (“PFA”) against Fairman, her
husband, with whom she shared four children.] On June 2-3,
2012, [Jessica] was at the marital residence with two of the
couples’ minor children [and] her parents[,] Richard E. Shotts
[(“Richard”)] and Candice Shotts [(“Candice”) (collectively, “the
Shottses”)]. [The Shottses] were present because of the concern
that [Fairman] would violate the [PFA] and appear at the
residence. [Candice] was also present to help [Jessica] prepare
for a birthday party for one of the children[, which was] scheduled
for the next day. …
[That night, Fairman] traveled to the marital residence.
[Fairman] observed [Jessica]’s car in the driveway, as well as [the
Shottses’s] vehicles. [Fairman] approached the home and walked
up to the porch to the kitchen door [and] demand[ed] to see his
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wife. [Fairman] was armed with [a] Colt handgun and [a] 30.06
rifle.
[Richard, armed with a .22 caliber RG Industries double-
action revolver, spoke with Fairman and denied Fairman entry into
the home.]
After [Richard] denied [Fairman] entry into the home[,
Fairman] attempted to force [open] the kitchen door without
success. He then fired the Colt into the door in an unsuccessful
attempt to gain entry. [Richard returned fire with] the [.22]
caliber handgun into the wall between the kitchen window and the
door. [Fairman] then fired the Colt handgun through the kitchen
window[,] striking [Richard] in the neck [and] causing his death.
[Fairman] then broke out the remaining portion of the
kitchen window and crawled through the opening while in
possession of both of his weapons. [Fairman] then traveled
through the kitchen[,] past [Richard’s] body[,] and climbed the
stairs to the second floor in search of [Jessica].
After the first shot was fired[, Jessica] called 911 to report
the PFA violation. [Jessica], her two children[,] and [Candice]
took refuge on the steps leading to the attic[,] while [Jessica]
positioned herself inside the attic door. At this time[, Jessica] was
armed with a New England [F]irearms .22 caliber double[-]action
revolver.
When [Fairman] entered the upstairs bedroom[, Jessica
shot Fairman twice in the shoulder. Jessica] then held [Fairman]
at gunpoint until the Pennsylvania State Police arrived and took
[Fairman] into custody.
After being taken into custody[, Fairman] admitted [to
police officers] that he fired the shot that killed [Richard].
[Fairman] claimed that it was unintentional. [Fairman] also stated
that it was his intent to kill himself in the presence of his wife. In
addition, [Fairman] stated he wanted to scare his wife.
Trial Court Opinion, 9/18/13, at 4-7.
On April 25, 2013, Fairman was convicted by a jury of one count each
of murder in the second degree and burglary, and two counts of aggravated
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assault.1 Fairman was sentenced to serve a mandatory life sentence for the
murder conviction, as well as an aggregate concurrent sentence of 5 to 20
years in prison for the remaining offenses. This Court affirmed his judgment
of sentence on February 7, 2014. Commonwealth v. Fairman, 97 A.3d 797(Pa. Super. 2014) (unpublished memorandum).
This Court described what next transcribed as follows:
On February 27, 2015, [Fairman, pro se,] filed a [P]etition
for post-conviction relief. The PCRA court appointed counsel on
March 27, 2015. Counsel filed an [A]mended [P]etition on
January 4, 2016. The PCRA court held a hearing on the [P]etition
on July 6, 2016. On November 15, 2016, the PCRA court … denied
relief with respect to two issues raised by [Fairman] regarding
alleged ineffective assistance by his trial counsel—the failure to
file a motion to suppress statements made to the police, and the
failure to argue case law when his plea agreement was rejected.
However, the [PCRA] court granted [Fairman] relief on [his] third
issue—that his appellate counsel was ineffective for failing to
argue that the convictions for murder of the second degree and
burglary were against the weight of the evidence.
Commonwealth v. Fairman, 182 A.3d 1266 (Pa. Super. 2017) (unpublished
memorandum at 2-3) (footnote, citation and quotation marks omitted). The
PCRA court concluded that Fairman’s appellate counsel had not adequately
notified him regarding the status of his appeal, and reinstated Fairman’s direct
appeal rights, nunc pro tunc.
On November 28, 2016, Fairman filed a nunc pro tunc Notice of Appeal.
On appeal, Fairman challenged the weight of the evidence and alleged that
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1 18 Pa.C.S.A. §§ 2502(b); 3502(a); 2702(a)(1), (4).
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trial counsel was ineffective for failing to file a motion to suppress Fairman’s
statements to police. On December 22, 2017, this Court concluded that it
could not rule on Fairman’s weight claim because Fairman had not first filed a
post-sentence motion before the trial court challenging the weight of the
evidence. See Fairman, 181 A.3d 1266 (unpublished memorandum at 4-6).
This Court explained that the PCRA court’s Order did not explicitly state
whether it had restored Fairman’s right to file a post-sentence motion. Id.(unpublished memorandum at 6). Consequently, this Court vacated the PCRA
court’s Order, and remanded for the PCRA court to clarify whether it had
intended to restore Fairman’s rights to file a post-trial motion raising the
weight claim. Id. (unpublished memorandum at 6-7). Additionally, this Court
concluded that it lacked jurisdiction to rule on Fairman’s ineffective assistance
of counsel claim because his judgment of sentence had not become final. Id.(unpublished memorandum at 7-8).
On remand, the PCRA court reinstated Fairman’s post-sentence rights
as well as his direct appeal rights, in order for Fairman to properly proceed on
his weight claim. Fairman filed a post-sentence Motion challenging the weight
of the evidence, which the trial court ultimately denied. On February 28, 2018,
Fairman filed a direct appeal claiming that the verdict was against the weight
of the evidence. On February 28, 2019, this Court affirmed Fairman’s
judgment of sentence, after which the Pennsylvania Supreme Court denied
allowance of appeal on August 22, 2019. See Commonwealth v. Fairman,
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209 A.3d 1107 (Pa. Super. 2019) (unpublished memorandum), appeal
denied, 217 A.3d 211 (Pa. 2019).
On August 27, 2019, Fairman filed a Motion to reinstate his previously-
filed PCRA Petition. Specifically, Fairman sought to reinstate his PCRA Petition
as to the issue of whether trial counsel rendered ineffective assistance by
failing to file a motion to suppress Fairman’s statements to police. On October
1, 2019, the PCRA court conducted a hearing,2 and the parties agreed that no
further testimony would be needed to supplement the July 6, 2016, PCRA
hearing. On October 2, 2019, the PCRA court granted Fairman’s Motion to
reinstate his previously-filed PCRA Petition. In the same Order, the PCRA
court denied Fairman’s claim that trial counsel was ineffective for failing to file
a motion to suppress Fairman’s statements to police. Fairman timely filed the
instant Notice of Appeal, as well as a court-ordered Concise Statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Fairman now presents the following claim for our review:
(1) W[hether] [d]efense [c]ounsel [was] ineffective [] when they
failed to file a suppression motion to exclude any
prejudicial/damaging statements [Fairman] made to the arresting
officers, including his confession, while [Fairman] was intoxicated,
[and] suffering the effects of blood loss and mental illness?
Brief for Appellant at 6.
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2While the PCRA court references this October 1, 2019 hearing, the docket
does not reflect that such a hearing occurred. Additionally, the record does
not contain a transcript of this hearing.
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Our standard of review of an order denying [a] PCRA
[petition] is whether the record supports the PCRA court’s
determination and whether the PCRA court’s determination is free
of legal error. The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011) (internal
citations omitted).
Fairman argues that his trial counsel was ineffective in failing to file a
motion to suppress his statements to the police. Brief for Appellant at 28.
Fairman asserts that he did not knowingly and voluntarily waive his Miranda3
rights. Id. Specifically, Fairman contends that at the time he made the
statements at issue, he had a blood alcohol content of 0.248, was on
prescription medication for depression, and had lost blood as a result of
suffering two gunshot wounds. Id. at 29-31. Further, Fairman claims that
his trial counsel had no reasonable basis for failing to file a motion to suppress
Fairman’s statements. Id. at 32. Fairman acknowledges that counsel did not
file the motion because the interrogation would demonstrate to the jury that
Fairman was intoxicated. Id. Fairman claims that this decision lacked a
reasonable basis because there were a multitude of witnesses who could have
testified as to Fairman’s level of intoxication. Id. at 32-33. Additionally,
Fairman asserts that the interrogation was actually damaging to his defense
because it showed Fairman as an angry and distressed man who was upset
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3 Miranda v. Arizona, 384 U.S. 436 (1966).
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with his wife. Id. at 31-32. Fairman contends that “[t]he jury viewed
[Fairman] in a very angry state when he spoke of his wife, giving the
Commonwealth motive.” Id. at 33.
Counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [the] appellant.” Commonwealth v. Rivera, 10
A.3d 1276, 1279 (Pa. Super. 2010).
To satisfy this burden, an appellant must plead and prove by a
preponderance of the evidence that[] (1) his underlying claim is
of arguable merit; (2) the particular course of conduct pursued by
counsel did not have some reasonable basis designed to effectuate
his interests; and, (3) but for counsel’s ineffectiveness there is a
reasonable probability that the outcome of the challenged
proceeding would have been different. Failure to satisfy any prong
of the test will result in rejection of the appellant’s ineffective
assistance of counsel claim.
Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal
citations and quotation marks omitted).
“[W]here a defendant alleges that counsel ineffectively failed to pursue
a suppression motion, the inquiry is whether the failure to file the motion itself
is objectively unreasonable, which requires a showing that the motion would
be meritorious.” Commonwealth v. Johnson, 179 A.3d 1153, 1160 (Pa.
Super. 2018). “[T]he defendant must establish that there was no reasonable
basis for not pursuing the suppression claim and that if the evidence had been
suppressed, there is a reasonable probability that the verdict would have been
more favorable.” Commonwealth v. Melson, 556 A.2d 836, 839 (Pa. Super.
1989).
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Instantly, the PCRA court found “a strategic basis exists for [not]
suppressing [Fairman]’s statements or video interview because that very
evidence shows [Fairman]’s high degree of intoxication.” PCRA Court Opinion
and Order, 11/15/16, at 4 (unnumbered). The record supports the PCRA
court’s finding. Notably, at the PCRA Hearing, Fairman and the
Commonwealth entered the following stipulation:
[PCRA Court]: And the [] stipulation is that in regards to the failure
to file a motion to suppress the statements based upon the
intoxication, mental health issues[,] and physical injuries, that
trial counsel’s strategy was that they wanted [Fairman’s
interrogation video] to come in [as evidence] in an effort to reduce
first[-]degree murder to third[-]degree murder; is that correct?
[The Commonwealth]: Yes, your honor.
[PCRA Court]: And we are agreeing that that[?] All right. Okay….
Any other issues or anything that we need to discuss then?
[PCRA Counsel]: No, your honor.
N.T. (PCRA Evidentiary Hearing), 7/6/16, at 12-13.
We agree with the PCRA court’s conclusion that trial counsel had a
reasonable basis for not filing a motion to suppress. See Melson, supra;
see also Holt, supra. Thus, Fairman has failed to prove that his trial counsel
lacked a reasonable basis for his actions, and the PCRA court did not abuse its
discretion when it determined that Fairman’s trial counsel was not ineffective.
See Rivera, supra; Holt, supra. Accordingly, we cannot afford Fairman
relief on his claim.
Based on the foregoing, we affirm the PCRA court’s Order denying
Fairman’s Petition.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/21/2020
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