J-S02040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ROBERT J. MCBREARTY                       :
                                           :
                    Appellant              :    No. 1416 EDA 2017

                  Appeal from the PCRA Order April 4, 2017
     In the Court of Common Pleas of Bucks County Criminal Division at
                       No(s): CP-09-0001058-2010


BEFORE:    BOWES, J., NICHOLS, J., and RANSOM*, J.

CONCURRING MEMORANDUM BY BOWES, J.:                      FILED JUNE 26, 2018

      In this PCRA appeal, Robert J. McBrearty raises several ineffective

assistance of counsel claims. I agree with my learned colleagues that we may

deem these claims waived because they are underdeveloped and improperly

pled. However, I find it preferable to decide the issues on their merits as

Appellant’s core claim of trial counsel ineffectiveness is, despite those defects,

discernible. For that reason, I concur in the result reached by the Majority.

      With respect to the ineffective assistance of trial counsel claims, I

believe that trial counsel ably represented Appellant in pursuing a claim that

his confession was obtained in violation of United States v. Miranda, 384

U.S. 436 (1966), and therefore had a reasonable strategic basis for failing to

pursue the alternative suppression basis discussed in the PCRA petition.

Additionally, I find that Appellant has failed to plead and prove his claim of

appellate counsel ineffectiveness.    Critically, Appellant has not established

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S02040-18



that a proper presentation of the Miranda claim would have succeeded on

direct appeal. My reasoning follows.

      A major factor in this case is our prior memorandum deeming waived

the sole appellate argument. Thus, I begin with a review of the facts, as set

forth in that decision.

      Prior to the charges being filed in the present case, Appellant pled
      guilty to Driving Under the Influence in Montgomery County and
      had been under the supervision of [Parole Officer Glenn Sherman]
      since July of 2009. On December 21, 2009, Officer Sherman met
      with Appellant in the Adult Probation and Parole Office located in
      the Bucks County Courthouse in Doylestown, Pennsylvania. The
      meeting, which lasted approximately fifteen to twenty minutes,
      took place in a 10’x15’ conference room which had a table and
      chairs in the middle of the room, video conferencing equipment,
      and a telephone. When the meeting concluded, and after Officer
      Sherman scheduled their next appointment, he asked Appellant
      whether he would be willing to speak with Detective [Lance]
      Carlen of the Doylestown Borough Police Department. Appellant
      said that he would be willing to speak with Detective Carlen. After
      Appellant agreed, Officer Sherman allowed Detective Carlen to
      enter the conference room.

      Detective Carlen was in plain clothes and was not carrying his
      firearm at the time of the meeting. He sat at the end of the table
      in the seat closest to the door between Officer Sherman and
      Appellant. Throughout Detective Carlen’s two (2) hour interview
      of Appellant, the door to the conference room was open six inches
      to one foot, Appellant moved freely about the room, never asked
      to use the restroom, or to stop the interview. Officer Sherman
      remained in the room during the interview with the exception of a
      period of approximately fifteen to thirty minutes when he left to
      reschedule clients who he was supposed to see that day. Prior to
      commencing the interview, Detective Carlen told Appellant that he
      was not in nor was he going to be taken into custody, and that
      Appellant did not have to speak with him. Detective Carlen did not
      read the Miranda warnings to Appellant. Detective Carlen
      testified that Appellant did not ask for an attorney at any point
      during the interview.


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     When the interview began, Detective Carlen informed Appellant
     that his purpose was to question him about the recent fires in
     Doylestown. Initially, Appellant denied having any knowledge of
     the fires. It was only after Detective Carlen explained the nature
     and locations of the fires, noted that Appellant had been stopped
     by police on several occasions in connection with those fires, and
     presented evidence of his connection to them, that Appellant
     admitted that he knew about the fires and had been stopped and
     questioned by police investigators. In an effort to help Appellant
     conceptualize the timeline and locations of the fires, Detective
     Carlen drew a map indicating where certain fires had been set
     near the James Lorah house. Appellant admitted to Detective
     Carlen that he set the fire to the fence behind Finny’s Royal Grotto
     and to leaves at the James Lorah house; Appellant made pen
     marks on the map indicating where he had started the fires.
     Appellant denied involvement in the fires at Union Station and
     behind the Doylestown Fire Station.

     As the interview progressed, Detective Carlen wrote all of the
     locations and dates down on a piece of paper and asked Appellant
     if he would be able to confirm whether he did or did not start the
     fires. In confirmation that he’d started two of the fires, Appellant
     wrote “leaves between two buildings” next to the James Lorah
     house entry, and “fence” next to Finny’s Royal Grotto to mark
     where the fires began. He put an “X” and “no” next to the Union
     Station and Shewell Avenue locations to indicate that he did not
     start those fires. Detective Carlen went through thirteen (13) fires
     on the list, Appellant wrote “yes,” “no,” or “possible” next to each
     location and signed the document underneath the detective’s
     signature. Detective Carlen told Appellant that he could be
     prosecuted for each of the thirteen fires separately or as one
     offense on a “common scheme prosecution” and that anything he
     did on the day of the interview would help him in regards to the
     prosecution of the offense. Additionally, Detective Carlen told
     Appellant that it would be beneficial for him if he continued to be
     “forthcoming” with information regarding the fires. Appellant did
     not change his answers regarding the fires after this statement
     was made by Detective Carlen. When the interview concluded,
     Detective Carlen told Appellant that he was not going to arrest
     him until after the holidays when they would proceed with
     prosecution of the arsons. Appellant was permitted to leave the
     courthouse without any interference from Detective Carlen or
     Officer Sherman.



                                    -3-
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      . . . Appellant testified that, although the detective told him that
      he was free to terminate the interview and leave at any time, he
      did not believe he was allowed to do so because he believed it
      would “violate [his] relationship with [his] probation officer.” On
      cross-examination, Appellant admitted Officer Sherman did not
      tell him that he had to speak with Detective Carlen, would violate
      his probation if he did not talk to the detective, and did not tell
      him that he was not permitted to end the interview at any time.
      Appellant stated that he asked for an attorney during the
      interview. Appellant accused Officer Sherman and Detective
      Carlen of lying about whether he asked for an attorney, the reason
      for Officer Sherman leaving the conference room during the
      interview, and the length of the time that Officer Sherman was
      absent from the room. The testimony of Detective Carlen and that
      of Officer Sherman directly contradict these allegations.

Commonwealth v. McBrearty, 1381 EDA 2011 (Pa.Super. 2012), at 1-4

(quoting trial court opinion) (footnote and citations omitted, alterations in

original).

      The trial court denied Appellant’s motion to suppress his statements.

Appellant proceeded to a non-jury trial, and was convicted of, inter alia, arson,

and sentenced to four to eight years incarceration, followed by a consecutive

period of seven years probation.     He was also ordered to pay more than

$900,000 in restitution. Appellant did not file post-sentence motions. He filed

a timely notice of appeal raising the following issue:

      Did the trial court err by denying [Appellant’s] motion to suppress
      evidence, namely, [Appellant’s] incriminating statement insofar as
      the statement had been made without [Appellant] having been
      advised of his Miranda rights, had been made by reason of
      coercion by the police threatening to bring additional charges
      against him, and had been made by reason of inducement by the
      police promising not to bring additional charges against him?

Id. at 5 (quoting brief, emphasis and alterations supplied by Superior Court).


                                      -4-
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      We deemed this claim waived. As it relates to these proceedings, we

noted that the pre-trial motion to suppress was based on a purported violation

of Miranda.    However, while Appellant cited Miranda in his brief, our

memorandum noted that his substantive argument did not rely on the absence

of those warnings:

      Appellant attacks the voluntariness of the admissions that he
      made to Detective Carlen. Appellant points out that he was not
      provided Miranda warnings prior to making the inculpatory
      statements. However, Appellant does not presently argue that his
      statements should be suppressed due to that omission. Rather,
      he contends that the statements were the product of
      coercion through the use of improper promises and
      inducement. Appellant asserts that Detective Carlen induced his
      confession by making both express and implied promises that the
      authorities would “go easier” on him if he confessed and that they
      would not file attempted homicide or manslaughter charges
      against him if he was “forthcoming.” Additionally, Appellant points
      out that he never was informed that he was free to leave or that
      he could terminate the interview at any time. Finally, Appellant
      notes that, during the interview, he never was offered a break, a
      drink, a snack, or a visit to the bathroom. Because of these
      promises and deprivations, Appellant argues that his inculpatory
      statements were involuntary, and therefore inadmissible.

            ....

      [At the trial court level,] Appellant did not claim that he was
      improperly induced into confessing through promises for leniency
      and/or promises not to file particular charges. . . . Appellant
      informed the court that he would only advance the suppression
      issue contained in the motion, i.e., the Miranda issue. He did not
      attempt to amend the motion orally, or otherwise preserve the
      issues he now raises.

Id. at 6-7 (emphasis added, citation omitted).

      Before discussing the instant PCRA proceedings, I briefly review the

differing legal theories involved in the pre-trial motion versus those pursued

                                     -5-
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on direct appeal. As noted in our prior decision, the motion to suppress was

based on Miranda. In United States v. Patane, 542 U.S. 630 (2004), Justice

David Souter summarized Miranda as follows:

      Miranda rested on insight into the inherently coercive character
      of custodial interrogation and the inherently difficult exercise of
      assessing the voluntariness of any confession resulting from it.
      Unless the police give the prescribed warnings meant to counter
      the coercive atmosphere, a custodial confession is inadmissible,
      there being no need for the previous time-consuming and difficult
      enquiry into voluntariness.

Id. at 645 (Souter, J., dissenting).     Thus, the failure to warn requires

suppression of statements made during a custodial interrogation, regardless

of whether the statement was actually involuntary within the meaning of the

Fifth Amendment.    See Oregon v. Elstad, 470 U.S. 298, 306–07 (1985)

(“The Fifth Amendment prohibits use by the prosecution in its case in chief

only of compelled testimony. Failure to administer Miranda warnings creates

a presumption of compulsion. Consequently, unwarned statements that are

otherwise voluntary within the meaning of the Fifth Amendment must

nevertheless be excluded from evidence under Miranda.”).

      However, even in cases where a defendant is not subjected to custodial

interrogation, a confession may still be involuntary under the Fifth Amendment

standard. See Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998)

(“In this case, Nester was not in custody when he confessed and he concedes

that the warnings described in [Miranda] were not required here.”).         We




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apply a totality of the circumstances test to determine if a noncustodial

interrogation was involuntary:

      a noncustodial interrogation might possibly in some situations, by
      virtue of some special circumstances, result in an involuntary
      confession. When assessing voluntariness pursuant to the totality
      of the circumstances, a court should look at the following factors:
      the duration and means of the interrogation; the physical and
      psychological state of the accused; the conditions attendant to the
      detention; the attitude of the interrogator; and any and all other
      factors that could drain a person's ability to withstand suggestion
      and coercion.

Id. at 882 (quotation marks and citations omitted).

      Trial counsel sought suppression based on the failure to issue Miranda

warnings, and did not challenge the voluntariness of the confession based on

the totality of the circumstances.      Appellate counsel, on the other hand,

argued that the confession was involuntary under the latter test. We deemed

the claim waived, since the theory advanced on appeal was not advanced at

the trial court level.

      Appellant subsequently filed a pro se petition seeking PCRA relief.

Counsel was appointed and filed an amended petition.               Appellant raised

several undeveloped claims and theories. The following passage is illustrative:

      It is uncontested that there were multiple factual, legal, and
      constitutional grounds for suppressing the alleged confession
      where there was no forensic evidence implicating Appellant in any
      way, yet there was not litigation and appellate review of these
      matters because trial and appellate counsel raised diametrically
      opposed claims without preserving all constitutional claims for
      Appellant. It is likewise uncontested that trial counsel did not wish
      for his client to be able to exercise his constitutional right to testify
      and trial counsel specifically crafted as short a direct examination
      as possible preempting Appellant from testifying about the issues

                                        -7-
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      he had previously and specifically mentioned to trial counsel. It is
      also uncontested that trial counsel did not conduct the
      investigation of the evidence and records requested by Appellant
      to support his diminished mental capacity, supporting his account
      of the coercive nature of the interrogation and impeaching any of
      the Commonwealth's witnesses. Taken together, it is clear that for
      the following reasons, trial counsel provided ineffective
      representation of counsel on issues that involved arguable merit
      without a shared or consulted reasonable basis that prejudiced
      Appellant by waiving suppression, trial, reconsideration, and
      appellate issues resulting in possibly a wrongful conviction and
      sentence of excessive period of probation whenever he ultimately
      is released.

      The ineffective assistance of counsel individually and/or jointly
      occurred through the lack of investigation, case preparation,
      consultation, advice with client, preparing, litigating and
      ultimately waiving suppression issues, as well as undermining,
      limiting and essentially preventing the exercise of his right to
      testify. This was further compounded by the lack of any
      meaningful advice or discussion regarding the differences between
      a waiver trial, stipulated waiver trial, and a jury trial, the ability
      to present defense evidence, preserving post–sentence rights, as
      well as failing to preserve, litigate, and address issues pre-trial, at
      trial, and on direct appeal. Simply put, the above errors by all
      counsel denied Appellant his constitutional protections, rights, and
      due process, thereby constituting ineffective assistance of counsel
      so significant that it undermined the truth-determining process so
      that no reliable adjudication of guilt or innocence could have taken
      place resulting in the possible conviction of an innocent man.

Appellant’s brief at 14-15.

      Confusingly, Appellant claims that these errors failed to “preserve

Appellant’s substantive due process rights to present a meaningful defense[.]”

Id. at 14.    As is evident from the aforementioned arguments, Appellant

elected to litigate several claims of ineffectiveness, which the Majority finds

underdeveloped.     I agree that Appellant’s presentation of these claims is

lacking, but I would address the gravamen of his petition: the claim that trial

                                       -8-
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counsel ineffectively failed to investigate and produce evidence that his

statement was involuntary under the totality of the circumstances. We apply

the following standard to such claims.

       The law presumes counsel has rendered effective assistance.
       When asserting a claim of ineffective assistance of counsel, the
       petitioner is required to plead and prove: (1) the underlying claim
       has arguable merit; (2) counsel had no reasonable strategic basis
       for his 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.

Commonwealth v. Moriarty, 180 A.3d 1279, 1285 (Pa.Super. 2018)

(citation omitted).

       I submit that we may dispose of the majority of Appellant’s claims by

assessing whether the decision to pursue a Miranda suppression motion had

a reasonable strategic basis.1 I would hold that there clearly was, based on


____________________________________________


1 A consistent theme in Appellant’s brief is that counsel failed to properly
consult with him regarding the wisdom of pursuing suppression based on
Miranda. “[W]ithout consulting with Appellant, trial counsel withdrew half of
the constitutional bas[e]s for said claims in advance of said hearing.”
Appellant’s brief at 7. However:

       [T]he decision to litigate, or not litigate, suppression motions is
       left to counsel in the exercise of his or her professional judgment.
       “[S]trategic choices made after thorough investigation of law and
       facts     relevant     to   plausible     options     are    virtually
       unchallengeable[.]” Strickland v. Washington, 466 U.S. 668,
       690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, where counsel
       fails to file a suppression motion, a prejudice analysis is
       unnecessary so long as there was a reasonable strategic basis for
       failing to file the motion.




                                           -9-
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the factual circumstances surrounding Appellant’s probation meeting, the

request to speak to Detective Carlen immediately following that meeting, and

the fact that the probation officer was present for most of the interview.

Furthermore, the PCRA evidentiary hearing demonstrates that trial counsel

consciously chose not to pursue the unpreserved grounds.           Trial counsel

testified that he only litigated the motion to suppress based on Miranda:

       [THE COMMONWEALTH]: And why was that?

      [Trial counsel]: Because I thought that that was the best motion
      to litigate. I thought there was a unique set of facts and
      circumstances that would lead a reasonable person to perhaps
      believe that [Appellant] was in custody during the time that that
      statement was taken.
N.T. PCRA Hearing, 5/9/16, at 16. On cross-examination by PCRA counsel,

trial counsel explained his assessment of the merits of the motion:


____________________________________________


       The upshot of these principles is that where a defendant alleges
       that counsel ineffectively failed to pursue a suppression motion,
       the inquiry is whether the failure to file the motion is itself
       objectively unreasonable, which requires a showing that the
       motion would be meritorious. See Commonwealth v. Melson,
       383 Pa.Super. 139,556 A.2d 836, 839 (1989) (“Where the
       challenge is to a failure to move for suppression of evidence, the
       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 the verdict
       would have been more favorable.”).

Commonwealth v. Johnson, 179 A.3d 1153, 1160 (Pa.Super. 2018)
(footnote omitted). see also Gonzalez v. United States, 553 U.S. 242, 249
(2008) (“Giving the attorney control of trial management matters is a practical
necessity. The adversary process could not function effectively if every tactical
decision required client approval.”) (quotation marks and citation omitted).



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     [Trial counsel]: Well, first of all the interview took place in the
     Bucks County Adult Probation Office. [Appellant] was brought in
     for his regular visit.    And somehow the Doylestown Police
     Department found out about that and had made arrangements to
     be present at the probation office when [Appellant] met with Mr.
     Sherman.

     As I recall the testimony, the sergeant was in another room across
     the hall, and once the interview was concluded by Mr. Sherman,
     [Appellant] was asked would he hang around so the police could
     talk to him.

     What I found particularly coercive about that setting not only was
     where it took place, but Mr. Sherman remained in the interview
     the entire time but for what he testified to be about a five-minute
     break where he had to make a phone call. I think the detective
     sergeant said he may have been out of the interview a little longer
     than that. But for an overwhelming majority of the two-and-a-
     half-hour interview, another factor that went to this coerciveness,
     his probation officer is sitting right next to him.

     So having had a lot of experience with people on probation from
     both sides of the aisle, I don’t think people believe they have the
     right to leave because of the presence of their probation officer
     when he’s present, despite being told to do so.

     And so, therefore, I did not think [Appellant], or a reasonable
     person in [Appellant]’s shoes, would believe that he had the right
     to leave. And I thought that that was a very coercive setting, and
     they did not, admittedly, advise him of his Miranda rights. So
     my argument was that he was in custody, and that the statement
     was involuntary.

Id. at 36-38.




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      With respect to the various materials that Appellant asserts should have

been introduced in support of his motion to suppress, trial counsel opined on

cross-examination that those materials were irrelevant:

      Q. You are aware now that [Appellant] had records at the Bucks
      County Correctional Facility, Council Rock School District, and
      Children’s Hospital of Philadelphia, correct?

      A. Correct.

      Q. Did you take any steps to obtain those documents before trial?

      A. No.

            ....

      I don’t believe that what happened at Council Rock High School
      has any effect on what happened in this case. I believe it’s
      completely irrelevant.

      Q. So if somebody received special education, training, and
      support for numerous years, you believe that’s completely
      irrelevant in your legal opinion?

      A. Correct.

      Q. You don’t believe that it would establish a history of ongoing
      need and support to understand the difference processing issues?

      A. Maybe, but not in this case.

Id. at 33-34.

      Appellant now attacks the failure to procure and present those kinds of

materials as follows:

      Trial counsel admitted that one's longstanding mental
      health history could be relevant to issues such as the
      voluntariness of statement and to explain the Appellant's
      conduct, but nevertheless, counsel never asked nor sought readily
      available records regarding Appellant's mental health treatment,

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       eight years of special education, Bucks County Correctional
       Facility records, and Children's Hospital of Philadelphia records.
       Even though trial counsel had retained a mental health expert, he
       did not ask the expert regarding any issue regarding
       involuntariness. Counsel, rather boldly proclaimed, that he
       strongly believed the statement [w]as involuntary and he
       declined to ask the expert this issue because, "I don't need
       him [an expert] to tell me that." This failure to in any way
       investigate    the   foregoing    records,   undermined     cross[-
       ]examination, prevented rehabilitation of Appellant's credibility,
       and denied the fact finders of evidence that would corroborate the
       Appellant's account, namely video from the Bucks County
       Courthouse, interview logs, parole papers, rules and regulations,
       or measuring/demonstrating the size of the room where the two
       and one-half (2 1/4) hour interrogation occurred. The records
       submitted as part of the record clearly establish processing and
       other issues that would only further support this claim that
       counsel seemed so strong he did not even need to ask his already
       retained expert. When one's life is at risk, evidence and experts
       cannot be ignored or disregarded, but it was in this case, and the
       records submitted show why an expert was warranted and helpful
       to the defense.

Appellant’s brief at 17-18 (emphases added).2

       I do not find trial counsel’s conclusion to be a “bold proclamation,” as

Appellant’s ineffectiveness argument ignores the distinction set forth supra

between involuntary due to the failure to issue Miranda warnings, and

involuntary under the distinct totality of the circumstances standard.

Counsel’s concession that, inter alia, mental health records “could be relevant”

was obviously referring to the latter standard. Nester, supra at 882 (listing,


____________________________________________


2  Appellant also faults trial counsel for failing to review these records before
filing the motions. However, Appellant fails to discuss how the substance of
those records would have made any difference whatsoever. In other words,
Appellant appears to advance a “failure to prepare” theory of ineffectiveness
without explaining how he was prejudiced by those failures.

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under totality of circumstances test, “the physical and psychological state of

the accused . . . and any and all other factors that could drain a person's

ability to withstand suggestion and coercion”). Appellant, however, appears

to believe that counsel somehow conceded that those records were relevant

to the Miranda inquiry. Trial counsel correctly opined that those other factors

were irrelevant if Appellant was in fact subject to custodial interrogation.

Therefore, I would hold that Appellant has failed to establish that trial counsel

lacked a reasonable strategic basis in presenting the Miranda claim to the

exclusion of the alternative claim. “[W]e will conclude that counsel's chosen

strategy lacked a reasonable basis only if the petitioner proves that the

alternative strategy not selected offered a potential for success substantially

greater than the course actually pursued.” Commonwealth v. Busanet, 54

A.3d 35, 46 (Pa. 2012) (citation omitted).

      Puzzlingly, Appellant appears to believe that Miranda warnings were,

in fact, required. It is not, of course, inconsistent to state that (1) Appellant

was in custody and subjected to interrogation, therefore requiring Miranda

warnings, and (2) that his statement was involuntary, even though Miranda

warnings were not given. However, as trial counsel recognized, there was

simply no need to establish that the statement was actually involuntary if

Miranda warnings were required. That is precisely the point of Miranda’s




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prophylactic rule.3 If Appellant continues to believe that he was subject to

custodial interrogation, then his continuing insistence that trial counsel was

ineffective makes little sense.

       Having established that trial counsel had a reasonable strategic basis

for focusing on the Miranda issue, the remaining question would be whether

appellate counsel was ineffective for failing to pursue that issue. However,

Appellant has failed to properly plead and prove appellate counsel’s

____________________________________________


3 Appellant also raises issues regarding the Sixth Amendment right to counsel:
“Appellate counsel only raised the voluntariness of the statement, and then
waiving any appellate review of the Fifth or Sixth Amendment violations.”
Appellant’s brief at 16. Appellant fails to discuss the differences between
these two Amendments. See McNeil v. Wisconsin, 501 U.S. 171, 176
(1991) (discussing Sixth Amendment right to counsel versus right to counsel
under Miranda; “Petitioner relies, however, upon a different ‘right to counsel,’
found not in the text of the Sixth Amendment, but in this Court's jurisprudence
relating to [Miranda].”).

The source for this claim, it appears, is that Appellant testified at the
suppression hearing that he had requested an attorney. As trial counsel made
abundantly clear at the evidentiary hearing, he feared that Appellant’s
testimony was not credible and urged Appellant not to testify, as the probation
officer and the detective denied the assertion that Appellant requested an
attorney. More significantly, trial counsel believed that any invocation of
counsel was irrelevant since the Commonwealth conceded that Miranda
warnings were not issued.        According to the Commonwealth’s theory,
Appellant was not in custody, was free to leave, and therefore not entitled to
counsel. Appellant fails to explain why a preemptive request for counsel in a
non-custodial interview must be honored. See Commonwealth v. Morgan,
610 A.2d 1013, 1018 (Pa.Super. 1992) (police officer read Miranda rights to
non-custodial suspect and suspect thereafter requested counsel, which was
not honored; “it is error for a court to consider a confession presumptively
coerced merely because a request for a lawyer is not honored where, as here,
the suspect was not in custody at the time.”) (emphasis in original)




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ineffectiveness, as a stand-alone claim regarding that attorney’s failure to

argue the correct legal theory to this Court on direct appeal. I would therefore

find that Appellant has waived that discrete claim. See Commonwealth v.

Koehler, 36 A.3d 121, 142 n.19 (Pa. 2012) (“A claim of appellate counsel

ineffectiveness for failing to raise a claim of trial counsel ineffectiveness is

distinct from the instant stand-alone claim of appellate counsel ineffectiveness

grounded in the manner in which appellate counsel litigated a claim on

appeal.”).

      Even if properly pled, I would find that Appellant failed to establish

prejudice. The prejudice prong is not self-proving. Appellant is required to

show that, had appellate counsel properly presented the Miranda argument

on direct appeal, “a reasonable probability exists that the outcome of the

appeal would have been different.” Commonwealth v. Thomas, 44 A.3d

12, 17 (Pa. 2012). Functionally, that reduces to a question of whether this

Court, on direct appeal, would have granted relief on the Miranda claim had

counsel argued that issue.

      Appellant’s only argument in this respect is that his attorneys failed to

cite Commonwealth v. Cooley, 118 A.3d 370 (Pa. 2015), and other cases

for the proposition that his confession should have been suppressed.

Appellant argues:

      In Cooley, the court concluded that Cooley was questioned
      regarding new criminal charges, that there was custodial
      interrogation and the failure to issue Miranda warnings violated
      his Fifth Amendment rights. Under Cooley, not only would

                                     - 16 -
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      Appellant have been entitled to a suppression of the statement
      because it was so coercive, a legal and factual conclusion that
      would have been far easier to reach if trial counsel was not so
      ineffective, the court clearly indicated that the transition from
      typical parolee/parole officer conversations to one that translates
      to new criminal charges, at the very least required Miranda
      warnings. Cooley, supra at 78. (Indicating that in comes [sic]
      circumstances someone subject to custodial interrogation is
      entitled to a self-executing privilege against self-incrimination.)

      . . . Pennsylvania is neither the first nor the last jurisdiction to
      have concluded that custodia[l] interrogation by parole or
      probation officers about new crimes requires Miranda warnings.
      The view about whether Miranda rights should be self-executing
      was specifically commented on in the case of Minnesota v.
      Murphy, 465 U.S. 420 (1984), unlike the instant case, the
      defendant did not believe that he would face any consequences
      for walking out of the interview. However, when a defendant
      believes that there are consequences, the right to remain silent
      may be self-executed. Commonwealth v. Knoble, 42 A.3d 976,
      982 (Pa. 2012).

            ....

      The foregoing case law clearly sets forth that the record, even as
      it now exists, constitutes a violation of Appellant's Miranda rights
      which were not fully and fairly litigated on initial suppression and
      trial stages due to the ineffectiveness of trial counsel. It further
      exemplifies how the additional testimony and evidence regarding
      the circumstances of the room, the position of the actors, physical
      and video evidence, and Appellant's mental state were all highly
      probative and could have only aided in the defense and litigation
      of these issues if counsel had provided effective assistance of
      counsel.

Appellant’s brief, at 21-23 (some citations omitted).

      This quoted explanation serves as a proxy for Appellant’s argument that

he was prejudiced. However, his argument largely places the blame on trial

counsel—as opposed to appellate counsel—and is little more than citation to



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cases that might have been used to support a properly-developed argument.

Therefore, I agree with the Majority that Appellant has waived this claim.

      I would add, however, that Cooley is not directly on point, and is readily

distinguishable. Therein, Cooley’s parole agents received reliable information

that Cooley possessed firearms and was selling drugs.         One week after

receiving this information, Cooley appeared for a scheduled parole meeting.

Immediately upon arrival, Cooley was handcuffed and told that his home

would be searched.      He was transported to his home, still in handcuffs.

Miranda warnings were not issued, and Cooley sought to suppress

statements made during these events, which the trial court denied on the

basis that Cooley was neither in custody nor interrogated. The Cooley Court

concluded that, under the totality of the circumstances, “a reasonable parolee

would not feel free to terminate the encounter and leave the parole office.”

      A detailed examination of Cooley is not necessary for present purposes.

Suffice to say, this case does not involve the probation officer asking the

questions, does not involve the use of physical restraints, and did not result

in the authorities immediately confronting Appellant. Those facts alter the

totality of the circumstances analysis applied in Cooley. Id. at 379 n.13 (“A

court views the totality of circumstance in each case; we accordingly limit our

holding to the facts presented here and recognize the outcome might be

different with factual variations.”).




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       Moreover, Appellant refers to the possibility that his rights were self-

executing. That concept applies only if “the government in any way asserts

that a probationer's claiming of the privilege would lead to probation

revocation[.]” Knoble, supra at 982. Herein, Appellant was not put in the

position where he had to choose between speaking to Detective Carlen, and

refusing, thereby jeopardizing his probationary status. Thus, Appellant has

failed to establish that a proper presentation of the Miranda claim would have

resulted in relief on direct appeal.4

       Next, Appellant asserts that trial counsel’s ineffectiveness continued

after suppression, as “trial counsel elected to proceed by way of a stipulated

waiver trial. The record reflects that Appellant did not realize that he had the

choice and believed that this decision was up to the attorney[.]” Appellant’s

brief at 24. The record reflects no such thing. Appellant cites to his own

testimony at the PCRA hearing to support his argument.              However, the

transcript from the non-jury trial establishes that the trial court fully explained

to Appellant that he had a right to a jury trial, and asked if he wished to waive

that right. There is no support whatsoever for his claim that his trial attorney

made the decision for him.




____________________________________________


4 Additionally, Appellant does not address the fact that Cooley was issued in
2015; his direct appeal was decided in 2012. Therefore, Appellant has failed
to establish that he would have succeeded based on precedents existing at
the time of his direct appeal.

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      Finally, Appellant’s remaining claim asserted that trial counsel failed to

file a post-sentence motion for reconsideration of his sentence. I would affirm

denial on substantive grounds. Appellant alleges that a motion to reconsider

should have been filed because his sentence exceeded the aggravated range

of the guidelines at one of the counts. Trial counsel fully explained why he

did not file that motion:

      Q. Did you have any recommendations for him regarding filing a
      motion to reconsider?

      A. I recommended he not.

      Q. Why is that?

      A. Well, for a couple different reasons. First of all, while any time
      in the state penitentiary is a long time in my eyes, I still thought
      the sentence was a very fair sentence given the facts and
      circumstances of this case. I mean, a home was pretty much
      burnt down. The people were home at the time. They escaped.
      Their five pets barely escaped, three of which, as I remember now,
      had smoke inhalation. I thought that was extremely egregious.
      The number of fires during a [thirty-one] day period, that was an
      excellent sentence in my book, number one.

      Number two, certainly in this case but in most cases I find motions
      to reconsider to be exercises in futility. I mean, the judge gave a
      very reasoned explanation and analysis of why he was going
      outside of the guidelines. His reasons were on the record. I
      thought them to be valid. So from a common sense standpoint
      I’m going to come back now or somebody is going to come back
      in nine or ten days and say, oh, by the way, we want you to
      reconsider? I didn’t think there was much value in the motion to
      reconsider.

      And lastly, I made it clear to the family, I don’t do appellate work.

            ....

      Q. Now, a couple things I want to clarify. You mentioned that the
      actual sentence in terms of looking at the guidelines for at least
      that one count was an aggravated range sentence or outside of

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      the aggravated range. How did you analyze that in terms of the
      overall nature of this case?

      A. Well, clearly the judge could have given him – sentenced him
      on each count and made those sentences to run consecutive[ly],
      which would have been far worse than what [Appellant] received
      . . . the judge made it clear that he was sentencing [Appellant] to
      a – I don’t remember whether it was an aggravated range or an
      outside-the-guidelines sentence but was not sentencing him on
      the other counts. I mean, listen, quite frankly, I left here very
      satisfied with that sentence.

N.T. PCRA Hearing, 5/9/16, at 27-29.

      Therefore, trial counsel believed there was no arguable merit to the

claim. Moreover, Appellant was not prejudiced by that failure as the PCRA

judge, who sentenced Appellant, confirmed in his PCRA court opinion that he

would not have revisited that sentence had the motion been filed.           “In

imposing a sentence in this matter . . . [t]his [c]ourt is satisfied that an

appropriate sentence was imposed. . . .By failing to demonstrate that this

[c]ourt would have granted a motion for reconsideration of sentence, PCRA

counsel has failed to plead and prove that [Appellant] was prejudiced as a

result of his counsel's failure to file post-sentence motions.”   PCRA Court

Opinion, 7/20/17, at 13-14.

      For the foregoing reasons, I concur in the decision to affirm the order

dismissing the petition.


      Judge Nichols concurs in the result.




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