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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ENRICO THOEDIS RHODES, SR. :
:
Appellant : No. 133 WDA 2018
Appeal from the PCRA Order December 28, 2017
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0000564-2015
BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 08, 2018
Enrico Thoedis Rhodes, Sr., appeals from the order denying his petition
for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1
Upon review, we affirm.
Robert Butch, a drug addict, worked at his parents’ business, Butch Auto
Salvage. Gary and Cynthia Butch, Robert Butch’s parents, lived in an
apartment above their salvage yard office. A tall cyclone fence with locks
enclosed both the salvage yard and the apartment. Butch’s parents decided
they had had enough of his drug addiction and wrote him a letter forbidding
him from entering the entire auto salvage property, including their apartment.
Thereafter, Butch’s parents changed the locks on the fence and building
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1 42 Pa.C.S.A. §§ 9541-9546.
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because Butch had a key to the previous locks. Gary and Cynthia Butch locked
the fence and building around 5:00 P.M. on the day in question.
Butch owed a drug debt to Carl Hammonds. To repay this debt, Butch
planned to give Hammonds a sport utility vehicle. Butch went to Youngstown,
Ohio to pick up Hammonds and bring him back to Grove City. Rhodes
accompanied them on the ride back.
On August 15, 2014, around 8:00 p.m., while at Butch’s home, which
was located across from the salvage yard, Hammonds decided he did not want
the SUV and instead wanted cash. Butch informed Hammonds he owned a
safe, which contained cash, at the salvage yard. Butch told Hammonds he was
forbidden to be on the salvage yard premises, but Hammonds allegedly
insisted they go get the safe anyway. The three men walked across State
Route 58, through high grass and weeds, crawled under the fence, broke a
few windows and entered the salvage yard building. Hammonds and Rhodes
carried the heavy black safe back through the field, where Butch met them
with his car, a Volkswagen Beetle.
At the same time, Sheriff Gary Hartman was returning from dinner with
his family and observed two black males carrying a heavy object out of the
high grass field, which he found suspicious. Sheriff Hartman exited the car
and encountered Butch, who told the officer a story about keeping his safe
near a tree stand so his girlfriend would not find it. By this point, the safe
was in the trunk of Butch’s Volkswagen. Hammonds and Rhodes, the two
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black men Sheriff Hartman had seen walking out of the field, were sweating
and appeared fidgety in the back seat of Butch’s car.
Trooper Timothy Callahan of the Pennsylvania State Police arrived and
Sheriff Hartman filled him in on what he had observed. Sheriff Hartman
remained as backup until other state troopers arrived. Trooper Callahan asked
the three men to exit the car and, after having a conversation with Butch,
conducted a safety frisk on each of the individuals and found nothing. Trooper
Callahan searched the car, for safety, and found a jacket. The jacket
contained items that did not feel like weapons or contraband. Trooper
Callahan pulled the items out of the pocket and found them to be a wallet and
gold jewelry, which he subsequently placed back in the pocket. Rhodes asked
for the jacket because he was chilly, even though he was visibly sweating. As
Trooper Callahan handed Rhodes the jacket, the wallet fell out, at which time
Rhodes identified the wallet as his. Trooper Callahan looked inside the wallet
and noticed it was brand new, unused and still had cardboard inside. Trooper
Callahan subsequently let the three men go.
About a half hour after letting the men go, Trooper Callahan received a
call that Butch’s Salvage Yard had been burglarized. Upon responding to that
call, Gary Butch informed Trooper Callahan that a window was broken, and a
safe, money, jewelry and wallets were missing. Gary Butch stated that the
wallets were in new condition, still containing the cardboard, because they
were gifts.
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On June 1, 2015, the District Attorney’s Office filed a criminal
information charging Rhodes with burglary, theft by unlawful taking, criminal
conspiracy/burglary, criminal conspiracy/theft, criminal trespass and criminal
mischief. Thereafter, Rhodes filed an omnibus pre-trial motion, which the
court granted in part by finding Trooper Callahan’s initial search of the jacket
to be unlawful because the pat-down search of it clearly indicated it did not
contain a weapon. The court, therefore, suppressed the wallet and jewelry
found during that initial search of Rhodes’ jacket as well as any reference
made to them or Rhodes’ statements about them.2 See Trial Court Order,
8/5/15. However, the court ruled that the events that occurred after Rhodes
asked for the jacket -- the wallet falling out, Rhodes’ statement that the wallet
was his and the trooper’s description of the wallet-- would be admissible at
trial. Trial Court’s Rule 1925(a) Opinion, 4/4/18, at 4-7.
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2 In Rhodes’ motion to suppress, he alleged, “after charges were filed, it
became clear that law enforcement was trying [to] link the items found in the
jacket, [the jewelry and wallet], with items allegedly taken from [Gary and
Cynthia Butch] during the alleged burglary.” Appellant’s Omnibus Pretrial
Motion to Suppress, 7/2/15.
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On September 25, 2015, a jury convicted Rhodes of theft by unlawful
taking,3 criminal conspiracy,4 criminal trespass,5 and criminal mischief.6 On
April 1, 2016, the court sentenced Rhodes to an aggregate term of
incarceration in a state correctional facility of not less than 36 months, but
not more than 100 months.7 Id. at 1-2. Rhodes filed a direct appeal, and this
Court affirmed his judgment of sentence. See Commonwealth v. Rhodes,
No. 628 WDA 2016 (Pa. Super. filed April 6, 2017) (unpublished
memorandum).
On August 31, 2017, Rhodes filed a timely pro se PCRA petition.
Thereafter, the court appointed counsel for Rhodes, who filed an amended
petition challenging trial counsel’s effectiveness. Specifically, Rhodes claimed
counsel was ineffective in failing to object to Trooper Callahan’s testimony
about the contents of the wallet after it fell out of the pocket of the jacket and
for failing to raise this issue in the Rule 1925(b) statement. By order dated
January 3, 2018, the PCRA court denied relief. This appeal followed.
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3 18 Pa.C.S.A. § 3921(a).
4 18 Pa.C.S.A. §§ 903 & 3921(a).
5 18 Pa.C.S.A. § 3503(a)(1)(ii).
6 18 Pa.C.S.A. § 3304(a)(5).
7Butch was not charged with stealing the safe or its contents, instead he was
charged with stealing other cash and items inside the building. Trial Court’s
Rule 1925(a) Opinion, 7/22/16, at 8.
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On appeal, Rhodes raises the following issues:
[Whether] the [PCRA c]ourt erred when [it] failed to find [Rhodes’]
trial counsel ineffective for (1) not including in [the Rule 1925(b)]
Statement of [Errors] Complained of on Appeal that the
Commonwealth improperly referenced the contents of the wallet
when the wallet fell from [Rhodes’] jacket and/or (2) failing to
object to the testimony of Commonwealth Witness Trooper
Callahan . . . relative to the contents and/or appearance of the
wallet when the wallet fell from [Rhodes’] jacket.
Appellant’s Brief, at 4.
The standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination, and whether the PCRA court’s
determination is free of legal error. Commonwealth v. Allen, 732 A.2d 582,
586 (Pa. 1999). The reviewing court gives great deference to the PCRA court
findings if the record contains any support for these findings. See
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. 2001) (emphasis added).
Rhodes’ claims on appeal challenge trial counsel’s effectiveness. “To
prevail on an ineffectiveness claim, appellant must demonstrate that: (1) his
claims are of arguable merit, (2) counsel had no reasonable basis for his
actions, and (3) counsel’s actions prejudiced appellant.” Allen, 732 A.2d at
587; see also Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. Super.
1987). Relating to the prejudice prong of the ineffectiveness test, the PCRA
petitioner must demonstrate “that there is a reasonable probability that, but
for counsel’s error or omission, the result of the proceeding would have been
different.” Commonwealth v. Ly, 980 A.2d 61, 73 (Pa. 2009).
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The court found the initial search of the jacket unlawful and suppressed
any reference to the contents stemming from that search as fruit of the
poisonous tree. However, the court also ruled that evidence relating to the
wallet arising after it fell out of the jacket pocket was admissible. Trooper
Callahan’s testimony did not violate the court’s suppression order, as it related
to the latter time-period. Moreover, counsel had a reasonable basis for not
objecting. Although there was some discrepancy in Trooper Callahan’s
testimony with respect to the sequence of events, in particular, at what point
he opened the wallet (at the suppression hearing, he testified he opened the
wallet during the initial search that was suppressed; at trial, he testified that
he opened it after it fell out of the jacket), trial counsel testified that he did
not object because he did not want to draw further attention to this issue.
Thus, Rhodes failed to establish that trial counsel lacked a strategic basis for
choosing to forego an objection. See Commonwealth v. Koehler, 36 A.3d
121, 132 (Pa. 2012) (counsel’s decision not to object and to avoid highlighting
issue for jury was objectively reasonable strategy). Finally, Rhodes did not
establish that but for counsel’s failure to object to this testimony, the result
would have been different. The evidence at trial, including the testimony of
co-defendant Robert Butch, as well as that of Sherriff Hartman and Trooper
Callahan, placed Rhodes at the scene. See Ly, supra.
The PCRA court’s findings are supported by the record. Allen, supra.
We, therefore, affirm the PCRA court’s order denying relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2018
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