Com. v. Booker, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN BOOKER :
:
Appellant : No. 943 EDA 2022
Appeal from the Judgment of Sentence Entered March 7, 2022,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0000628-2021.
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 21, 2023
In this pro se direct appeal, John Booker appeals from the judgment of
sentence imposed after he was convicted of violating of one count of person
not to possess a firearm.1 He raises a claim that trial counsel was ineffective
for failing to file a suppression motion. Because we agree with the trial court
that this claim must await collateral review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6105. Booker was also charged with additional firearm
violations under sections 6106 and 6108. After hearing evidence that the
firearm at issue was inoperable, however, the trial court granted Booker’s
motion for judgment of acquittal as to these two charges but denied the
motion as to section 6105. The trial court correctly noted that “unlike sections
6106 and 6108, section 6105 does not require ‘operability’ as an element of
the crime.” Trial Court Opinion, 6/29/22 at 2 n.5 (citing Commonwealth v.
Batty, 169 A.3d 70 (Pa. Super. 2017)).
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The trial court summarized the pertinent facts as follows:
Philadelphia Police Officer, Matthew Ibbotson (Officer
Ibbotson,) testified at trial that on the evening of November
17, 2020, around 9:20 p.m., while patrolling the 1900 block
of West Cambria Street, he observed [Booker] emerging
from an alleyway. [Booker] stopped, “started patting
himself down,” and said he “was just pissing.” Officer
Ibbotson immediately saw that [Booker] had a gun inside
his right jacket pocket, which Officer Ibbotson retrieved,
discovered was loaded, and placed on [a] property receipt.
[The Commonwealth presented footage from the officer’s
body camera as a trial exhibit.]
[Booker] advised Officer Ibbotson that he had “just found
[the gun] in the alleyway.” When Officer Ibbotson asked
what he intended to do with the gun, [Booker] responded
“nothing.” Following his arrest, [Booker] asked whether he
could lock the door to the home at 2855 North Garnet
Street, which shared the alleyway from which [Booker]
emerged with the gun. At [Booker’s] behest, Officer
Ibbotson locked the front door of the premises. [Detective
Richard Pacell testified that he and his partner took a
recorded statement from Booker following his arrest and the
Commonwealth presented the recording at trial.]
Officer Daniel Cha (Officer Cha), who is assigned to the
Philadelphia Police Department’s Firearms Identification
Unit, testified that the gun recovered from [Booker] was a
Sterling semiautomatic handgun. Upon testing, the gun was
“found to be inoperable due to a broken firing pin.”
[Booker] also testified. He claimed that he lived at 2855
North Garnet Street, which is owned by his grandmother
(Gwendolyn Johns) and uncle (Terrell Johns). [Booker]
testified that everybody residing at the residence – except
him – had been infected with COVID. On the day/evening
of his arrest, [Booker] had been cleaning and disinfecting
the home with the help of hired personnel. At some point
[Booker] took the trash out the back door, locked himself
out of the back entrance, and had to “relieve himself” while
in the alleyway behind the home. After relieving himself,
[Booker] proceeded to exit the alleyway and inadvertently
kicked a gun lying on the ground. He retrieved the gun and
placed it inside his pocket.
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Upon exiting the alleyway, [Booker] saw Officer Ibbotson
in his patrol car. Officer Ibbotson asked [Booker] what he
was doing. [Booker] responded that he “was pissing.”
Officer Ibbotson then exited his patrol car, and [Booker]
pulled out his wallet and placed his hands in the air. Officer
Ibbotson conducted a pat down and “found the firearm that
[Booker] had just recovered in the alleyway.” [Booker]
testified that he cooperated with Officer Ibbotson and
advised him that he found the gun in the alleyway.
[Booker] further testified that he informed the
investigating detectives that he found the firearm while
taking out the trash from 2855 North Garnet Street.
[Booker] testified that he was locked outside the rear of his
home and therefore was walking down the alleyway to get
around to the front of the property. [Booker] claimed he
had no intention of keeping the gun and intended to give it
to his next-door neighbor, who is his former attorney.
According to [Booker] he intended to stop at his neighbor’s
home and give him the gun. Although [Booker] knew he
was not permitted to possess a firearm, he retrieved the gun
anyway because he did not want kids accessing it and/or
someone getting injured.
Trial Court Opinion, 6/29/22, at 1-3 (footnotes, citations, and some quotation
marks omitted).
At the conclusion of a waiver trial, the court took the matter under
advisement. On December 20, 2021, the trial court found Booker guilty of
possessing a firearm in violation of 18 Pa.C.S.A. § 6105. On March 7, 2022,
the trial court sentenced Booker to an aggregate term of two to four years of
imprisonment.
Booker filed a timely pro se appeal, which was docketed at No. 943 EDA
2022. Trial counsel, who was only retained to represent Booker at trial, also
filed a notice of appeal on Booker’s behalf which was docketed at No. 1035
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EDA 2022. Thereafter, trial counsel filed in this Court applications to withdraw
at both docket numbers. We granted trial counsel’s applications to withdraw
and instructed the trial court to determine whether Booker was eligible for
court-appointed counsel. On May 26, 2022, the trial court entered an order
appointing new counsel to represent Booker at No. 943 EDA 2022.
On June 13, 2022, counsel filed a Pa.R.A.P. 1925(b) statement with the
trial court, and the trial court filed its Rule 1925(a) opinion on June 29, 2022.
After receiving several pro se documents from Booker, however, this Court,
by order entered October 21, 2022, remanded the appeal for the trial court to
conduct a Grazier2 hearing. The trial court held the hearing and at its
conclusion permitted Booker to proceed pro se.
On December 16, 2022, Booker filed a pro se brief. After considering
an earlier filed pro se document from Booker, by order entered January 30,
2023, we remanded the certified record to the trial court so that Booker could
file a supplemental Rule 1925(b) statement and the court could then file a
Rule 1925(a) opinion addressing the claims raised in the supplemental
statement. This Court further ordered that the pro se brief Booker had already
filed to be stricken, and that the briefing schedule would be vacated pending
the return of the certified record to this Court. Thereafter, Booker and the
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2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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trial court complied with this Court’s directives, the parties filed briefs, and
the appeal is ready for disposition.3
We cite verbatim the claim put forth by Booker in his supplemental Rule
1925(b) statement:
Trial counsel was ineffective for failing to pursue a motion
of suppression against the submission of the firearm in question
and [Booker’s] statement[s] to police prior to trial, due to the
illegality of Officer Matthew Ibbotson’s search of [Booker]; based
upon lack of probable cause to “stop,” approach and search
[Booker], due to the officer’s testimony that there was no report
of criminal activity in the area and [Booker] was not considered a
suspect, at the time the officer decided to stop as [Booker] was
leaving an alley and had stopped, and began patting himself in
search of his wallet; as the officer approached [Booker] and
demanded that [Booker] turn around to be patted down; because
the officer assumed that [Booker] had possession of an unseen
firearm . . . merely based upon an impression of [Booker’s] jacket
pocket.
Booker’s Supplemental Rule 1925(b) Statement, at 1.4
As noted above, Booker is attempting to raise a claim of trial counsel’s
ineffectiveness on direct appeal. Our Supreme Court has held that, as a
general rule, claims of ineffective assistance of counsel must await collateral
review under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
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3Ultimately, this Court dismissed as duplicative the appeal docketed at No.
1035 EDA 2022.
4 In his appellate brief filed on March 30, 2023, Booker raised four different
issues, including a mistaken claim that our previous remand was due to the
ineffectiveness of counsel. As none of these claims were raised in Booker’s
supplemental Rule 1925(b) statement, they are waived, and we will not
consider them further. See Pa.R.A.P. 1925(b)(4)(vii).
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46. Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). The Holmes
Court recognized two exceptions to the general rule whereby claims of
ineffective assistance of counsel may be raised and addressed on direct appeal
“both falling within the discretion” of the trial court: (1) there are
extraordinary circumstances in which trial counsel’s “ineffectiveness is
apparent from the record and meritorious to the extent that immediate
consideration best serve the interests of justice” or (2) “there is good cause
shown” and the defendant knowingly and expressly waives his entitled to seek
subsequent PCRA review of his conviction and sentence.” Holmes, 79 A.3d
563-64. Subsequently, our Supreme Court recognized an additional exception
permitting courts “to address claims challenging trial counsel’s performance
where the defendant is statutorily precluded from obtaining subsequent PCRA
review.” Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018).
Here, we agree with the trial court’s conclusion that Booker’s
ineffectiveness claim does not meet either exception recognized in Holmes:
[The trial court] does not find [Booker’s] claim to be
meritorious and apparent from the record to require
immediate consideration. Nor does [Booker] allege any
“good cause” for seeking unitary review of his
ineffectiveness claim, much less express any intention of
waiving collateral review. As such, neither of the exceptions
set forth in Holmes is applicable here. Accordingly, the
instant claim is unreviewable at this stage.
Supplemental Trial Court Opinion, 3/10/23, at 4 (citations omitted).
Additionally, although not addressed by the trial court, Booker’s
ineffectiveness claim is not reviewable under the Delgros exception, because
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unlike Delgros who was only sentenced to pay a fine, Booker was sentenced
to a term of incarceration. He is, therefore, eligible for post-conviction review.
Thus, we affirm Booker’s judgment of sentence without prejudice to his ability
to raise the claim in a PCRA petition.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2023
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