Com. v. Bethea, M.

J-S45014-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee

v.

MONTEZ BETHEA,

Appellant No. 3375 EDA 2018

Appeal from the PCRA Order Entered October 19, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009460-2011

BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 13, 2019

Appellant, Montez Bethea, appeals from the post-conviction court’s

October 19, 2018 order denying his petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

The PCRA court provides a lengthy summary of the facts and procedural

history underlying Appellant’s conviction, which we adopt for purposes of this

appeal. See PCRA Court Opinion (PCO), 1/28/19, at 1-8. We only highlight

that on April 15, 2016, Appellant filed a timely, pro se PCRA petition. Although

the court initially appointed counsel, Appellant ultimately retained a private

attorney, who filed two amended petitions on his behalf. After the court

conducted a bifurcated evidentiary hearing on April 27, 2018, and July 20,

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S45014-19

2018, it issued an order denying Appellant’s petition on October 19, 2018. He

filed a timely notice of appeal, and he also timely complied with the PCRA

court’s order to file a Pa.R.A.P. 1925(b) statement. On January 28, 2019, the

PCRA court filed a Rule 1925(a) opinion.

Herein, Appellant states six issues for our review:

I. Was Appellant denied his rights under the Sixth Amendment of
the U.S. Constitution and Article 1, sec. 9 of the Pennsylvania
Constitution when trial counsel ineffectively advised Appellant not
to testify on his own behalf?

II. Was Appellant entitled to relief based upon after[-]discovered
evidence that the Commonwealth’s key witness, Darryl Rigney,
lied when he inculpated [] Appellant in the crime?

III. Was Appellant denied his Sixth Amendment and Article 1, sec.
9 rights when trial counsel ineffectively failed to secure and use …
phone records at trial?

IV. Was Appellant denied his rights under the Sixth Amendment
of the U.S. Constitution and Article 1, sec. 9 of the Pennsylvania
Constitution when counsel ineffectively failed to obtain and use
available impeachment evidence?

V. Was Appellant denied his rights under the Sixth Amendment of
the U.S. Constitution and Article 1, sec. 9 of the Pennsylvania
Constitution when counsel ineffectively failed to object to the trial
court[’s] using hearsay evidence obtained as part of the Motion to
Suppress for truth of the matter asserted at trial?

VI. Was Appellant denied his rights under the Sixth Amendment
of the U.S. Constitution and Article 1, sec. 9 of the Pennsylvania
Constitution when counsel ineffectively failed to preserve, raise
and argue a claim on direct appeal that the trial court erred in
denying the Motion to Suppress?

Appellant’s Brief at 3.

We have reviewed the certified record, the briefs of the parties, and the

applicable law. Additionally, we have reviewed the thorough and well-crafted

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J-S45014-19

opinion of the Honorable Glenn B. Bronson of the Court of Common Pleas of

Philadelphia County. We conclude that Judge Bronson’s well-reasoned opinion

accurately disposes of the issues presented by Appellant.1 Accordingly, we

adopt his opinion as our own and affirm the order denying Appellant’s PCRA

petition for the reasons set forth therein.

Order affirmed.

____________________________________________

1 We observe, however, that there are two claims raised in Appellant’s brief
that were not addressed by Judge Bronson. First, Appellant contends that his
trial counsel acted ineffectively by advising him not to testify “for purposes of
the suppression motion[,]” which was heard by the court simultaneously with
Appellant’s non-jury trial. See Appellant’s Brief at 15. In Judge Bronson’s
opinion, he analyzed only Appellant’s related allegation that trial counsel acted
ineffectively by advising him not to testify at trial. See PCO at 12-17.
However, Appellant does not point to, and we do not see, where he questioned
trial counsel at the PCRA hearing about counsel’s allegedly advising him not
to testify for purposes of the motion to suppress. Therefore, he has waived
this undeveloped claim for our review. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal.”).

Judge Bronson also did not address Appellant’s assertion (which he adds
to the end of his fifth issue) “that counsel was ineffective for failing to have
the contents of the white bag thrown by Andrews tested for fingerprints.”
Appellant’s Brief at 43. Appellant did not raise this claim in his Rule 1925(b)
statement and, therefore, it is waived. Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.”).

-3-
J-S45014-19

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/13/2019

-4-
 Circulated 10/31/2019 08:50 AM

-�.;( .
.
'

FILED.
. .. IN THE COURT OF COMMON PLEAS
,.,
2019 JAH 28 PM 2: 19 FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
CP-51-CR-0009460-2011

CP�1-CR�21JI I Comm v �. llonlu
V. 0p;,,.,..

MONTEZ BETHEA

OPINION
I\ 111111111111111
�2iQ01_6201
I ii ./ '

BRONSON,J: January 28, 2019

On September 11, 2013. following a non-jury trial before this Court, defendant Montez

Bethea was convicted of two counts of murder of the first degree (18 Pa.C.S. § 2502(a)), two

counts of criminal conspiracy (18 PaC.S. § 903). two counts of first-degree robbery (18 Pa,C.S.

§ 3701(a)(l)(i)). one count of carrying a firearm without a license (18 Pa.C.S. § 6106(aXl)), one

count of carrying a firearm on public streets of Philadelphia (18 Pa.C.S. § 6108). one count of

carrying a fireann by a prohibited person (18 Pa.C.S. § 6l05(a)), l one count of.possessing a

controlled substance with intent to deliver (75 Pa.C.S. § 780-113(aX30)); and one count of

possessing an instrument of crime ("PICt) (18 Pa.C.S. § 907(a)).2 The Court immediately

imposed the mandatory sentence of life in prison for each murder charge. to run consecutive to

one another (18 Pa.C.S. § ·I 102(a)(l)).3

On December 23, 2014, the Superior Court affinned defendant's judgment of sentence,

and the Supreme Court denied allocatur on June 25, 2015. Defendant tiled a prose petition

I
The sect.an 6105 charge �uiRd lbe C 89. Upon entering the apartment and seeing
the bodies of Mr. Daniel and Ms. Lond� it was immediately apparent to police
officers that they were both dead. N.T. 9/10/2013 at 40-41. The paramedics
arrived and pronounced both victims. N.T. 9/10/2013 at 41. Mr. Daniel had been

4
shot ten times: twice in the chest, twice in the stomach, four times in the left arm,
once in the left thigh, and once in the right thigh. N.T. 9/9/2013 at 160-161. Ms.
London had been shot thirteen times: eight times in the back, three times in the
at
left thigh, once in the left arm. and once in the left leg. N.T. 9/912013 ! 61.

At the same time, Philadelphia Police Officer Charles Kapusniak and his partner,
Kenneth Long. were conducting surveillance on the 1800 block of North Judson
Street, pursuant to their assignment with the Narcotics Field Unit. N.T. 9/9/2013'
at 94. This location was near Redner Street. where the murders had just occurred.
At approximately 2:40 p.m., Officer Kapusniak observed a white Cadillac travel
southbound on Judson Street before pulling over near 1820 North Judson Street.
N. T. 91912013 at 95. Officer Kapusniak saw Darryl Rigney exit the vehicle's
driver door, while Mr. James emerged from the front passenger seat and
defendant got out of the rear passenger seat. N.T. 9/9/2013 at 95-96. All three
men walked to the rear of the Cadillac, and Mr. James removed a large trash bag
from the Cadillac's trunk. N.T. 9/9/2013 at 96. The three men then ran into 1820
North Judson Street. N.T. 9/9'1013 at 96.

Thirty seconds after the three men ran into the house on North Judson Street.
Officer Kapusniak received a call over police radio ftom Philadelphia Police
Lieutenant James Smith. N.T. 9/9/2013 at 96, 123. Lieutenant Smith informed
Officer Kapusniak that there had been a shooting at 300 t Redner Street, and that a
white Cadillac containing two or three black males.had been seen fleeing the
scene. N.T. 9/912013 at 96. 123-125; 9/1012013 at 16-17. Officer Kapusniak
radioed for backup, informing Lieutenant Smith that he had just seen a white
Cadillac and that three black males had emerged from the Cadillac and run into a
house. N.T. 9/912013 at96-97, 199.

Approximately one minute after he radioed for backup. Officer Kapusniak
observed two men, later identified as Reginald Andrews and Maurice Morris,
walk past his vehicle. N .T. 9/912013 at 97-98. Mr. Andrews and Mr. Morris ·
approached 1820 North Judson Street, knocked on the door, and entered the ·
house .. N.T. 9/912013 at 98. Mr. James then stuck his head out of the door and
looked around. N.T. 9/9/2013 at 98. A short time later, a silver Kia sped down
the block and parked in the middle of the street in front of the house. N.T.
9/9/2013 at 98-99. Mr. James then ran out of the house, carrying a black duffle
bag. N.T. 9/9/2013 at 99. He jumped into the passenger seat of the Kia and threw
the duftle bag into the backseat. N.T. 9/9/2013 at 99. The driver of the Kia. later
identified as Mohammed Bey. drove down Judson Street at a high rate of speed
and tumed down Montgomery Avenue, at which point Officer Kapusniak lost
.sight of the vehicle. N.T. 9/9/2()13 at 99-100, 120-121.

After Mr. Bey turned onto Montgomery Avenue, Officer Joseph McCabe and
Officer Miles. who were backing up Officer Kapusniak, pulled over the silver Kia
based on Officer Kapusniak's description of the car and its license plate number.

5
 N.T. 9/9/2013 at 99-100, 163-165.!I As Officer McCabe approached the
passenger side of the vehicle, the passenger door popped open, and Officer
McCabe smelled an extremely strong: odor of marijuana emanating from the car.
N.T. 9/912013 at 165. Officer McCabe opened the passenger door the rest of the
way, and Mr. James, who was in the passenger seat, inuuediately said, "Officer,
that's my marijuana." N.T. 9f9/l013 at 165-166. Officer McCabe placed Mr•.
James and Mr. Bey in custody and searched Mr. James's pants pockets,
recovering $555 cash. N.T. 9/9fl013 at 166-167, 179-180. Officer M�� then
saw the duffle bag in the backseat, which was open. N.T. 9/9/2013 at 167. The
· bag contained five dear Ziploc bags of marijuana and a scale. N. T. 9/9/20 J 3 at
167. Officer McCabe radioed Officer Kapusniak and told him that he had
apprehended Mr. James and Mr. Bey. and that he had recovered several clear
Ziploc bags of marijuana from the dutlle bag in the backseat of the Kia. N.T.
91912013 at I 00.

While Officer McCabe was apprehending Mr. 'James and Mr. Bey, Officer
Kapusniak had remained at 1820 North Judson Street, surveilling the house. N.T.
9/9/2013 at 100-101. Officer Kapusniak observed Mr. AndRws and Mr. Morris
emerge from the house. N. T. 9/9/2013 at l 00. Mr. Andrews had a white plastic
bag in his hand. N.T. 9/9/2013 at 100. Officer Kapusniak again radioed baclcup
officers and gave them a description of Mr. Andrews and Mr. Morris. N.T.
9t9n.O 13 at I 00. Mr. Andrews and Mr. Morris walked up the block, turning onto
Berks Street. N.T. 9/912013 at 101.

After Mr. Andrews and Mr. Morris turned onto Berks Street, Officer Joseph
McCauley and Officer Aponte began pursuing Mr. Andrews and Mr. Morris on
foot, based on the descriptions relayed to them by Officer Kapusniak. N.T.
9/9fl013 at 101.6 Mr. Morris did not run from the police, and was placed in
custody. Mr. Andrews fled, throwing the white plastic bag that he had been
carrying over a fence. N.T. 9/9/lOIJ at JO]. Officer McCauley caught up to Mr.
Andrews and placed him under arrest. N.T. 9/9/2013 at 191. Officer McCauley
then jwnped over the fence and retrieved the bag that Mr. Andrews had discarded.
N.T. 919n.013 at 191. In the bag were a clear Ziploc·bag full of marijuana, ·
several empty bags with marijuana residue, a gun holster, a photograph album,
and two passports. The passports were later discovered to belong to Mr. Daniel,
one of the homicide victims. N.T. 9/9!2013
I
at 192; 9/10/2013 at 21-22; 9/l 1'2013
at 85-89. , ·

As Officer McCauley was apprehending Mr. Andrews and Mr. Morris, Officer
Kapusniak continued his surveillance of 1820 North Judson Street. N.T. 9/9/20 l 3
at l 03. Lieutenaet Smith, along with Philadelphia Police Corporal Gerard Menz
and other members of the narcotics team, arrived at the house and informed
Officer Kapusniak that two people had been killed in the shooting at 3001 Redner
Street. N.T. 9/9/2013 at 103. At that point, the officers heard movement from

5
Officer Miles's fmt name was not given at trial. ·
6
Officc(rl Aponte's firsr name was not given at trial.
inside 1820 North J udson Street, and Corporal Gerard Mertz ordered officers to
enter the house in order to secure the property. N.T. 9/9n013 at 202-203. .
Corporal Mertz, Lieutenant Smith, Officer Kapusniak, Officer Long, and Officer
Stephen Ratka entered the house. N.T. 9/912013 at 103,. 200.
As police entered the house, defendant and Mr. Rigney were sitting in the living
room along with a young woman, later identified as Shonte Smith. N.T. 9/9/2013
at 104, 203. Mr. Rigney was sitting in a chair by the front door, while defendant
was sitting on a couch on the opposite side of the room. N.T. 9/9/2013 at 40, 104,
226. Next to defendant was a dog cag� on top of which was an unzipped duftle
bag. N.T. 9/912013 at 104. Inside the duffle bag, clearly visible to the police,
were clear Ziploc bags full of marijuana. N.T. 9/9/2013 at 104, 148. ·Defendant,
Mr. Rigney, and Ms. Smith were all placed in custody. From Mr. Rigney's
pocket. Officer Ratka recovered the key to the white Cadillac. N.T. 9/9/2013 at
109, 152, 226.

Police performed a protective sweep of the property for other suspects, and
awaited a search warrant in order to further search the property. N. T. 9/9n.O 13 at
l 04-105, 149, 200, 2211 9110/2013 at 19-21. As police awaited the warrant, Ms.
Smith was sitting in a chair and defendant and Mr. James were sitting on the
floor. N.T. 9/lOn.013 at 41-42. All three were handcuffed. N.T. 9/9/2013 at 41-
43. As he sat on the floor in handcuffs. defendant kicked a pink bag underneath
the couch. N.T. 9/10/2013 at 4344.

After obtaining a search wamnt. police searched the entire residence. N.T.
9/9/2013 at 105-106. Police recovered seven clear Ziploc bags full of marijuana
from within the open duffle bag and five clear Ziploc bags full of marijuana from
within the white trash bag. N.T. 91912013 at 106, 240. Police also recovered the
pink bag from underneath the couch, which contained a .357 revolver, a 9-
millimeter handgun, and a .4S caliber handgun. N.T. 9/10/2013 at 66.

Police recovered 25 pieces of ballistic evidence from the scene of the murders:
eighteen fired cartridge casings and projectiles from a 9·millimeter handgun, four
fired cartridge casings from a .4S caliber handgun. two bullets from a .357
revolver, and one bullet jacket ofindetenninabJe caliber. N.T. 9/10/2013 at 66-
68. The Fireanns Unit matched J I of the fired cartridge casings to the 9-
millimeter gun recovered from the pink bag found in 1820North Judson Street,
one of the fired cartridge casings to the .45 caliber handgun found in the pink bag,
and both of the .357 bullets to the .357 revolver found in the pink bag. N.T.
91l0/2013 at 70-71. The medical examiner recovered three 9-millimeter bullets
from Ms. London's body. and one 9-inillimeter bullet and one .45 caliber bullet
from Mr. Daniel's body. N.T. 9/1012013 at 69. The .45 caliber bullet removed

7

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 from Mr. Daniel's body was matched to the .45 caliber handgun from the pink
bag. N.T. 9/10/2013 at ·10.7

After obtaining a search warrant for the Cadillac, the police recovered from its
trunk the license plate that was registered.to the car, which read "HJZ-1543."
_N.T. 9/10/2013 at 27. The license plate that was affixed to the Cadillac, which
was not registered to the car, read "HPG-2737." N.T. 9/10/2013 at 25-26.

The marijuana recovered from 1820 North Judson Street, the marijuana recovered
from the Kia, and the marijuana that Mr. Andrews attempted to discard over a
fence were all "hydroponic" marijuana, which is particularly expensive, powerful,
and pungent�smeHing form of drug. N.T. 9/10/2013 at 14, 56. All of this
marijuana was identical to the small amount of marijuana that was left behind in
the apartment at 3001 Redner Street. N.T.· 9/1012013 at 56.

Trial Court Opinion, filed December 6, 20 J 3, at pp. 2-8.

II. DISCUSSION

An appellate court's review of a PCRA court's grant or denial ofrelief"is limited to

determining whether the court's findings are supported by the record and the court's order is

otherwise free of legal error." Commonweahh». Green, 14 A.Jd 114, 116 (Pa. Super. 2011)

(internal quotations omitted). The reviewing court "wiJl not disturb findings that are supported

by the record." Id. Moreover, "where a PCRA court's credibility determinations are supported

by the record, they are binding on the reviewing court." Commomvealth v. White, 734 A.2d 3 74,

381 (Pa 1999) (citing Comnwnweallh v. Abu.Jamal, 120 A.2d 79, 93 (Pa. 1998)).

A. After Discovered Evidence

Defendant claims that the Court erred "'in finding that after discovered evidence that the

Commonwealth's key witness, Darryl Rigney, lied when he inculpated the [defendant] in the

crime was not credible and/or did not have merit," Statement of Matters at 1 Il. At �al, Rigney

testified that after co-defendant Rashann James talked to the decedent about purchasing

7
The remaining 9-milllmeter and .4S caliber tired cartridge ca.sings and bullets were consistent with.the 9·millimcter
handgun llnd the .45· �aliber handgun rocovc:rcd limn the bag, but had insufficient markings to positively mateh the
casings to the fireanns. N.T. 9/10/2013 at 71.

8
marijuana. defendant, James, and Rigney switched cars with another man and drove to the

decedent's apartment on Redner Street in a white Cadillac. N.T. 9/10/2013 at 115-120. He also

testified that defendant and James went inside the decedent's apartment and, a few minutes later,

ran from the apartment to the car carrying a large garbage bag. N.T. 9/10/2013 at 122. At the

evidentiary hearing. Rigney recanted his trial testimony and stated that two other men, and not

defendant and James, committed the actions described above.

To obtain relief under the PCRA base.don after-discovered evidence, defendant must

plead and prove that the evidence: 1) could not have been obtained prior to the conclusion of the

trial by the exercise of reasonable diligence; 2) is not merely cumulative; 3) will not be used

solely to impeach the credibility of a witness; and 4) would likely compel a different verdict. 42

Pa.C.S. § 9543(a)(2Xvi); Commonwealth v. D'Amato, 856 A.2d 806, 823 (Pa. 2004).

With regard to recantanon testimony as after discovered evidence, the Pennsylvania

Supreme Court has stated the foll?wing:

[T]his Court has repeatedly "acknowledged the limiurlons inherent in recantation
testimony, which has been characterized as 'extremely unreliable.?' In fact, we
have remarlced that "[tJhere is no less reliable Conn of proof. especially where it
involves an admission of perjury." For that reason, we have emphasized that.
when addressing an after-discovered evidence claim pmnised on recantation
testimony. "the PCRA court must, in the fttSt instance, assess the credibility and
significance of the recantation in light of the evidence as a whole." "Unless the
[PCRAJ court is satisfied that the recantation is true, it should deny a new trial."

Commonweallh v. Small, 189 A3d 961, 977 (Pa. 2018) (internal citations omitted).
Evidence Presented at the Evidentiary Hearing

At the evidentiary hearing, defendant presented testimony on this issue from Darryl

Rigney. He testified that two men named Carray and Block accompani_ed him in a white

Cadmac and entered the Redner Street apartment. where the robbery and m� were

corrunitted. N. T. 4/27/201 � at 56-57. Contrary to his trial testimony, Rigney claimed that

9
defendant and co-defendant James were not in the white Cadillac when he drove to the house on

Redner Street. N.�. 4/27/2018 at 56. Instead, Rigney claimed that as he was driving away from

the scene of the crime with Carrey and B� he unexpectedly saw_defendant on Ridge Avenue

and decided to give him a ride. N.T. 4/27/2018 at 57-58, 105. Rigney claimed that shortly

thereafter, Canay and Block got out of the car, leaving Rigney with the 1rash bag containing the

marijuana stolen after the murders. N .T. 4127/2018 at 58, 107. Rigney stated that he then picked

up James, and that Rigney, James and defendant then went to the house of defendant's aunt

where they emptied out the bag left by Carray and Block, finding the marijuana and three guns.

N.T. 4/27/2018 at )06-109. Accordingly, under Rigney's new version of the events, Carray and

Block killed the decedents and stole the marijuana, but then left the marijuana and the murder

weapons in the car with Rigney. In this version of the events, defendant and James wound up

with the guns and drugs only because Rigney fortuitously ran into defendant and James on the

street and picked them up in the getaway car after dropping off the real killers.

Rigney also testified that he initially had told detectives that Carray and Block were the

murderers, end only told them defendant committed these crimes "(a]fter they persistently,

continuously pushed me to say [defendant] did, yeah." N.T. 4127/201,8 at 78; see also 4/27/'2018

at 61--62. He also claimed that he told his lawyer and the prosecutor before testifying at

defendant' s trial that Block and Carray committed the murders and defendant and James did not.

N.T. 4/2712018 at 82.

During cross-examination of Rigney at the hearing, the Commonwealth reviewed

Rigoey's statement to police in which he had implicated defendant and James•. During this line

of questioning. Rigney often fell silent for 1 S to 20 seconds before answering questions and at

times refused to answer questions. See N.T. 4/27/2018 at 90·93, 98·102, 113. He also often

10
contradicted his direct testimony by agreeing that statements he had made to detectives, which

conflicted with his recantation, were true. SeeN.T. 4127/2018at90, 93, 96, 991 100-101, 103.

Findinrs of Fact and Conclusions o(Law

FolJowing the evidentiary hearing, the Court rendered findings of fact and conclusions of

law on this issue, in open court, which were, in substance, as follows:

1. R.igney's recantation testimony was completely incredible and did not undermine

confidence in the outcome of the trial. His new story appeared to be a total fabrication. and his

demeanor and behavior during the hearing rendered his recantation to be unbelievable.

2. Because the Court was not satisfied that the recantation was true, no new trial is

warranted. See Commonwealth "'· Small, 189 A.3d 961. 977 (Pa. 2018).

As the record fully supports the Court's finding that Rigney's testimony was not credible,

that finding should not be disturbed. See Commonwealth v. While, 134 A.2d 374, 381 (Pa.

1999); Commonwealth v. Green, 14 A.3d 114, 116 (Pa. Super. 2011).

B. lneffeclil'e Asststance ofCounsel

Defendant's remaining· claims pertain to the alleged ineffectiveness of trial counsel or

appellate counsel. Under Pennsylvania law, counsel is presumed to be effective and the burden

to prove otherwise lies with the petitioner. Commonwealth v, kid, 99 A3d 427, 435 (Pa. 2014).

To obtain collatera1 relief based on the ineffective assistance of counsel, a petitioner must show

that counsel's representation fell below accepted standards �f advocacy and that as a result

thereof, the petitioner was prejudiced. Stricl:J� v. Washington, 466 U.S. 6681 694 (1984}. In

Pennsylvania. the Strickland standard is interpreted as requiring proof that (I) the claim

underlying the ineffectiveness claim had arguable merit; (2) counsel's actions lacked any

reasonable basis; and (3) the ineffectiveness of counsel caused the petitioner prejudice.

11
 Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009) (citing Commonwealth v. Pierce, 527

A.2d 973, 975 (Pa 1987)). To satisfy the third prong of the test. the petitioner must prove that,

but for counsel's error, there is a·reasonable probability that the outcome of the proceeding

would have been different. Commonwealth v. Sneed, 899 A.2d 1067. 1084 (Pa. 2006) (citing

Strickland; 466 U.S. at 694).

1. Trial Counscl�s Advice Not to Iestify

Defendant claims that trial counsel. David Rudenstein, Esquire, was ineffective when he

"advised [defendant] not to testify on his own behalf for purposes of the Motion to Suppress

andlor·for substantive trial purposes." Statement of Matters at, 1.1
. .
"The decision whether to testify in one's own behalf is ultimately to be made by the

accused after full consultation with counsel," Commonwealth v. Neal, 618 A.2d 438, 440 (Pa.

Super. I992)(quotingCo,nmo�ea/rhv. Bazabe, S90A.2d 1298, 1301 (Pa.Super.1991)). In

order to establish a claim of ineffective assistance of counsel for failing to call a defendant to the

stand, the defendant must establish that: 1) counsel interfered with defendant's freedom to

testify; and 2) counsel gave specific advice so unreasonable as to negate a knowing and

intelligent decision by the defendant. Id

Evidenee Presented at the EvidentiarvHearing

At the evidc:ntiary heanng, defendant testified on his own behalf and presented the

testimony of mitigation counsel, Gary Server,_Esquire, and trial counsel. David Rudenstein,

Esquire. on this issue.9

I
The waiver trial and suppression hearing were condu(;� simuhaneousry.
9
The Commonweal1h initially sought the death penalty and Mr. Server was appointed as mitigation counsel
However, the Commonwealth agreed not to seek the death penalty in exchange for defendant agreeing to a waiver
trial. Mr. Server was excused ahr jeopardy attached at the waiver trial. S4e N. T. 4127f1.018 at 9- l 0.
·12
 Mr. Server testified that it is his common practice at his initial meetings with defendants

to give.a presentation during which. among other things, he explains the major decisions,

including whether or not to testify, where defendants have the ultimate decision making

authority. N.T. 4127/2018 at 19-20. He further testified that defendant first told him he had an

alibi when they met on November 12, 2012. at Philadelphia Industrial Correction Center

("'PICC"). N.T. 4/2712018 at 10-11. According to Mr. Server. who kept contemporaneous notes

during the meeting, defendant told him· that at the time of the murders on December 8. 20 I 0,

defendant was being visited by his parole officer at his home. Id Mr. Server, who was tasked

with investigating defendant's alibi, testified that parole records did not corroborate defendant's

alibi and that the parole officer actually visited defendant on December 7, 2010. N.T. 4/27f2018

at 13-15. Moreover, Mr. Server testified that he told defendant this infonnation in person on

September I, 2013. at PICC. N.T. 4127!2018 at 16.

Defendant testified that Mr. Rudenstein informed him that he should not testify because if

he did his aggravated assault conviction would come into evidence and because his testimony

would conflict with co-defendant James' defense theory. N.'.f. 4/2712018 at 146-147. He also

testified that he never told Mr. Server that he � meeting with his parole officer on the day of

the murders. N.T. 4/2712018 at 143, 149. He testified that he told Mr. Rudenstein that his alibi

was that he met with his parole agent on December 7, 2010, and the agent told him he could not

leave his home until 2:00 p.m. N.T. 4127!2018 at 142. The next day, the day of the murders,

aefendant claimed he did not leave his home until 2:00 p.m., following the instructions of the

·parole officer, and that he subsequently took out someone's trash. which ostensibly gave him an

alibi. Id Finally, defendant testified that he did not know, and Mr. Rudenstein did not tell him,

that the decision of whether or not to testify was ultimately up to him. N. T. 4/27/2018 at 150.

13
 During the cross-examination of the defendant, the prosecutor reviewed with defendant

the· colloquy regarding defendant's right to testify that took place prior to the defense resting.

N.T. 4/27/2018 at 150-155. That colloquy, during which defendant was under oath, was as

follows:

(The CourtJ; All right. You can have a seat. Thank you. First of all. let
mejust verify, have either of you had any drugs. alcohol.
medication. anything that would affect your ability to
understand what's going on in court today? Mr. Bethea?
IDefendant Bethea): No.
(The Courtf: Mr. James?
(Defendant J•mes]: No.
{The Court): AU right. Each of you have a right under the Fifth
Amendment to the Constitution, also under very similar
provision in the Pennsylvania Constitution not to testify in
this case. And ifyou·decide not to testify, I wiU be
precluded by law from holding that against you in any way.
I won't draw any inference adverse to either of you if you
decide not to testify. Do you understand that, Mr. Bethea?
[Defendant Bethea): Yes. ·
(The Court): Do you understand that, Mr. James?
[Defendant James): Yes.
(The Court): On the other hand, you also have the right to testify, to ten
me your side of the story if you so choose, but that right is
qualified in this way. Once your counsel rests on your
' behalf [in] your case, that right will be extinguished, and
what I mean by that is the right will be gone forever. You
won't be able to come back at a later time and say that you
then wanted to testify or that you wanted to testify now, but
nobody gave you a chance to do that or your lawyer talked
you out of it even though you wanted to do it. If you
wanted to raise any kind of concerns about those kinds of
things, you need to do that now. Do you understand that,
Mr. Bethea?
(Defendant Bethea): Yes.
[The Court}: Do you Wlderstand that, Mr. James?
(Defendant Jamesf: Yes.
[The Court): There are-most of the decisions that are made during the
course of the.trial are entrusted to your lawyers who are
excellent attorneys, well versed in the law, but there are a
few things that you two as defendants have the final say
about. You have the right to decide of course whether to
go to trial or not, that's your decision. Whether you have a

14
 judge trial or jury trial. that's ultimately your decision.
Also whether or not you testify. That's also ultimately
your decision. You get the final say on that. but of course
nobody with any sense at all would make that decision
without speaking to and getting the advice of counsel, but if
you had a disagreement with your lawyer about that, you'd
have the final say. Do you Wlderstand that, Mr. Bethea?
(Defendant Bedteal: Yes.
[The Court]: Do you understand that, Mr. James?
(Defendant James]: Yes.
(The Court): Have you had a full and fair opportunity to discuss your
options with your lawyen? Mr. Bethea?
[Defendant Bethea]: Yes.
{Tbe Court]: Mr. James?
(Delendan.t James): Yes.
(The Court): Having done that. is it your decision not to testify? Mr.
Bethea?
(Defendant Bethea): Yes.
lTbe Court): Mr. James?
(Defendant James]: Yes.
[The Court): Has anybo!Jy threatened you in any way or used any force
against you or promised you something to get you not to
testify in this case? Mr. Bethea?
(Defendant Bethea]: No.
(Tbe Court]: Mr. James?
[Defendant James): No.
fTJae Court): All right. I'm satisfied there's a knowing, intelligent, and
vohmtary waiver of their rights to testify and I'll accept
that.

N.T. 9/1112013 at l 19-123. Defendant acknowledged that he had understood the Court's

instructions to him during the colloquy. N.T. 412712018 at 150-155.

Next. Mr. Rudenstein testified that he did not specificaHy recall the conversation he had

with defendant regarding whether or not he should testify. N.T. 412712018 at 31, 37-38; N.T.

7/20/2018 at 4-5. He testified that, in his 37 years as a criminal defense attorney, it is bis

common practice to inform defendants oftbe advantages and disadvantages of testifying, to tell

them that they have an absolute right to testify or not to testify, and to inform them that the

decision to testify is ultimately up to the defendant himself. N.T. 4/2712018 at 38-39, 42-44. He

15
also testified that he customarily advises clients who have oon crimen falsi prior convictions,

such as aggravated assault, that such con�ictions generally cannot be used for impeachment

purposes unless a defendant "opens the door" by testifying to something inconsistent with ever

having been convicted of such a crime. N.T. 7/20/2018 at 7-10. Further. Mr. Rudenstein

testified that if defendant had wanted to testify, he would have calleddefendant as a witness.

N.T. 4/27/2018 at 39-40. Finally, he testified that he tells defendants to answer questions during

the colloquy honestly. N.T. 7/20/2018 at 6, 10.

Eindings ofFact and Conclusions ofLaw

Following the evidentiary hearing, the Court rendered findings of fact and conclusions of

law on this issue, in open court, which were, in substance, as follows:

1. Defendant's testimony at the evidentiary hearing that was inconsistent with what he

stated in his colloquy was not credible. In particular, the Court clearly explained to defendant

during the colloquy that he had the absolute authority to decide whether or not to testify. and

defendant affinned, under oath. that after full and fair opponunity to discuss his options with Mr.

Rudenstein, it was defendant's de<:ision.not to testify in this case. N.T. 9/1 J/2013 et 121-122.

OefendanCs claim that he never knew he had the final say on this issue, and that he was

answering questions during the colloquy based on orders from Mr. Rudenstein, was belied by the

record:

2. Defendant's claim that Mr. Rud.enstein told him that his aggravated assault conviction

would come in if he testified also was not credible. Based on the credible testimony of Mr.

Rudenstein, the Court concluded that he correctly advised defendant that the aggravated assault

conviction could possibly come in only if-defendant opened the door by testifying to something

inconsistent with ever having been convicted of that crime. See Commonwealth v. Mwphy. 182

16
A.Jd 1002, 1008 (Pa. Super. 2018) (citation omitted) {"[E]vidence of a non·crimenfalsi

conviction . : . may be admitted into evidence after the defendant raises the issue of his good

character.").

3. Attorney Server's testimony that defendant claimed to have an alibi through his parole

officer, and that records refuted defendant's claim, was credible. Defendant's contrary testimony

was not That defendant falsely claimed to have an alibi to counsel was a compelling reason to

advise him not to testify in this case.

4. Defendant has failed to prove that trial counsel interfered with his freedom to testify

and gave specific advice so unreasonable as to negate a knowing and intelligent decision by

defendant. Commonwealth v. Neal. 618 A.2d 438, 440 (Pa. Super. 1992).

As the record fully supports the Court's finding that Mr. Rudenstein was not ineffective

for advising defendant not to �· .that finding should not be disturbed. See Commonwealth v.

White, 734 A.2d 374. 381 (Pa. 1999); Commonwealth v. Green, 14 A.3d 114, l 16 (Pa. Super.

201 l).

2. Fpjlure to Obtain Cell Phgne �ecords

Defendant claims that the Court erred in fmding that tria1 counsel was not ineffective for

failing to "secure and use cell phone records at trial to refute Commonwealth evidence placing

[defendant] at the scene." Statement of Matters at 1 IJI. This claim is without merit.

Evidence Presented at the EvidentiQJJ' Hearinf '

At the evidentiary hearing. defendant testified on his own behalf and presented the

testimony of Darryl Rigney. David Rudenstein, Esquire. and Gary Server, Esquire on this issue.

Defendant presented his cell phone records from the day of the murders,� testified as

to whom he spoke and the contents of those phone calls. While the murders occurred at around

17
2:00 to 2:30 p.m. on that day, 10 defendant noted that he bad an 11 minute call with Darryl Rigney

at 2:04 p.m. N.T. 4127/2018 at 126. Defendant contended that this proved that he was not

together with Rigney at the time of the murders. He also noted that he made or received phone

calls at 2:22 p.m., 2:24 p.m., and 2:36 p.m.ieither at the time of, or shortly after, the murders.

See N.T. 4/27/2018 at 128-130. Defendant testified that the first two phone calls were with his

friend, Rafiq Jones, and the latter with his then gi�lfriend, Joye Lavender. Id He contended that

. the records regarding these calls were also exculpatory, since he would have been unlikely to

make and receive calls unrelated to the crimes around the time of the murders,

Defendant's phonerecords also documented a 12:52 p.m. phone call with Robert

Williams. the man who provided Rigney with the white CadiUac used as the getaway car. N.T.

4/27/2018 at 167-168. This record was highly inculpatory, since it appeared to refute

defendant's claim that he did not know Williams at alt and had never had contact with him.

Defendant addressed this issue by claiming that other people were using his phone on the day of
. .
the murders: "A couple people arocmd my way have the phone. They just passed the phone

around." N.T. 4127/2018 at 169.

Defendant testified that when he asked Mr, Rudenstein about his phone records prior to

trial, Mr. Rudenstein said ''he'd get back with [defendant]," but that Mr. Rudenstein never did.

N.T. 4127/2018 at 164. Mr. Rudenstein did not recall whether defendant told him he was on the

phone with Rigney during or close to the time of the murders. N.T. 4/27/2018 at 40. Mr. Sei:ver,

on the other hand. testified that defendant never claimed to have been on the phone with Rigney

around the time ofthemurders. N.T. 4'17/2018 at 19.

io The time of the slaooting was established by witness Lester Johnson, who heard the gunshots. saw lhe flaeing
. Cadillac. and called police. N.T. 9/I0/20l3 at 10.13. He escimmd die time as between 2:00 and 2:30 p.m. N.T.
9/10'2013 at 13. Tho radio call for gunshots fired went out at 2:32 p.m. N.T. 9/10/2013 at 47.

18
 Findings o(Fqct and Conclusions o(Law

1. Defendant was not prejudiced, in any manner, by counsel's ostensible failure to use

the cell phone records al trial. First, the records were highly iriculpatory by establishing that

shortly before the murders, defendant spoke with Robert Williams, the man who provided the

getaway car. while having denied knowing Williams or having had any contact with him.

Moreover, defendant's explanation for how that call took place, that is, that many other people

were using his phone on the day in question, undermined all of his other claims regarding the

records, since defendant's own testimony established that the calls could have been made with

his phone by several other people who were �'passfing) the phone around." See N.T. 4127fl018

at 169.

2. Moreover, even if defendant did make all of the calls apart from the one to Williams,

the records would not exculpate defendant. The evidence was not disputed that Rigney drove the

getaway car and did not go into the residence where the murders occurred. 'Therefore, it is

entirely consistent with the Commonwealth's theory that Rigney could have been on the phone

with defendant around the time of the murders, with Rigney being in the car and defendant being

in the house. Similarly, there is no reason that def�dant, who did not drive the getaway car

either to or from the scene of the crimes, could not have made or received the three calls

descn"bed above near the time of the murders.

As the record fully supports the Court's finding that nial counsel was not ineffective for

failing to secure and use cell phone records at trial, that finding should not be disturbed. See

Commorrwea/t� v. Whi�e, 734 A.2d 374. 381 (Pa. 1999); Commonwealth v. Green. 14 A.3d 114,

· 116 (Pa. Super. 2011).

19
3. Failure to Obtain Impeachment Evidence

Defendant claims that the Court erred in finding that trial counsel was not ineffective for

failing "to obtain and use available impeachment evidence I) related to Officer Forrest 2) linking

the cream Cadillac seen leaving the crime scene to the white Cadillac that drove up to Judson

Street and 3) the-incomplete crime scene log." Statement of Matters at 1 rv. "[Tjhe failure to

impeach a witness on a particular ground cannot constitute ineffective assistance of counsel if
triaJ counsel had a reasonable strategy for not so impeaching." Commonwealth v. Hanible, 30

A.3d 426, 454 (Pa. 2011) (citing Commonwealth v. Small� 980 A.2d 549, 565 (Pa. 2009)).

a. Impeachment Evidence ·Related lo Officer Forrest

Defendant argues that trial counsel was ineffective for failing to obtain and use available

impeachment evidence against Officer Forrest. Statement of Matters at 1 IV. In his Amended

Petition, defendant claimed that trial counsel should have impeached Officer Forrest with an out-

of-court statement given by Officer Outlaw that was inconsistent with Officer Forrest's

testimony. Amended Petition, filed 7n.312017, at 41-42. However. in order to impeach a

witness with a prior inconsistent statement, "there must be evidence that the statement was made
' .
or adopted by the witness whose credibility is being impeached." Commonwealth v. Brown, �8

A.2d 1097, 1102 (Pa. Super. 1982) (c�ting Commonwealth v. Baez. 43 l A.2d 909, 912 (Pa.

198 l )). Here, there is no indication thaf Officer Forrest adopted Officer Outlaw's statement.

Accordingly, any attempt to impeach Officer Forrest with Officer Outlaw's statement would

have been improper. For that reason, trial counsel could not have been ineffective for failing to

attempt to impeach Officer Forrest in that manner.

20
 b. Impeachment Evidence Linking the Cream Cadillac Seen Leaving the Crime
Scene to Im While Cadillac that Drove up to Judson Street

Defendant's next argument is that trial counsel failed to use available impeachment

material ·� would have challenged the Commonweahh's linking the cream Cadillac seen

leaving the crime scene to the white Cadillac that drove up to Judson Street," Amended Petition,

filed 7/23/2017, at 43; see also Statement of Matters at 1' IV. Here,defendant is referring to a

prior inconsis.tent statement of witness Lester Johnson, who heard �ts and saw a white

Cadillac fleeing the scene. At trial, Johnson testified that as he witnessed the Cadillac speed

away, he wrote down what he could see oftbe license plate number, that is, ''HP 7-27." N.T.

9/10/2013 at 1 J-14. That was compelling evideeee since the license plate nwnber that was

actually affixed to the Cadillac parked outside 1820 North Judson Street read ''HPG·273 7 ... N.T.

9/10/2013 at 25-26.

The alleged inconsistency pertains to whether Johnson gave the police the slip of paper

on which he had recorded the partial license plate on the day of the crime. In particular.

defendant notes that at trial, Johnson testified that he gave the slip of paper to the police on the

day of the crime. while in his prior statement to police. he said he gave the paper to the· police

two days after the crime. See Amended Petition, filed 7123/2017, at 43.

Defendant fails to aver how this minor inconsistency could undermine the

Commonwealth's case. Johnson was a very compelling witness, whose alert recording of a

panial license plate number offered highly probative evidence that the ietaway car used for the

murders was the car parked in front of the home where c;lefendant was found after the murders.

If defense counsel had confronted Johnson with this minor inconsistency in his statement, it

would not have diminished Johnson's credibility or otherwise undennined the Commonwealth "s

case.

21
 c. Incomplete Crime Log Scene

Defendant's last claim regarding impeachment material is as follows:

Counsel also failed to use available evidence to impeach Commonwealth witness
with the incomplete crime scene log. According to Officer Outlaw, Lt. Bernard
told him to change his clothes and to see if the witnesses would come down to
homicide. Neither Lt. Bernard or. notably. Officer Outlaw are listed on the crime
scene log. Lt Bernard wasn't even listed on the Commonwealth's potential
witness list. Showing that a police investigation was sloppy or incomplete could
have only supported [defendant's] assertion that he was an innocent man who was
not involved in or even know about the murders and was only with Rigney in that
white Cadillac that afternoon in order to buy some marijuana.

Amended Petition, filed 7123{2017. at 43-44 (footnote omitted).

This argument is without merit. The ostensible omission of two people from a crime

scene log, neither of whom testified during the trial, was largely irrelevant. An effort by counsel

to bring out this type of minor and inconsequential error in police paperwork could not have

affected the outcome of the case.

4. Failure to Object to Hearsay Evidence

Defendant next claims:

The PCRA Court erred in finding that [ defendant] was not denied his rights under
the Sbcth Amendment of the U.S. Constitution and Article 1, sec. 9 of the
Pennsylvania Constitution when trial counsel failed to object to the triaJ court
using hearsay evidence obtained as part of the Motion to Suppress for the truth of
the matter asserted at trial; to the extent that this Court found that the claim was
preserved at trial, the PCRA Court erred in finding that appellate counsel was not
ineffective for failing to present and argue it in the direct appeal.

Statement of Matters at 1 V.

In his Amended Petition, defendant specifically claimed that some of the Court's factual

findings in defendant's substantive case were based on Officer Forrest's hearsay testimony in

which he stated that two unidentified witnesses told him they saw two or three black males flee

the scene of the crime in a white Cadillac. See Amended Petition, filed 7/23/2017, at 44·50.

· 22
Defendant states that "[d]uring the oral' ruling at the conclusion of the trial, the Court held as

finding of fact number three, 'information contained in the police radio call was based on a

statement from a neighbor who spoke to a police officer and reported what she had seen.?' Id at

49 (quoting N.T. 911112013 at 140). Defendant argues, therefore, that he was .. prejudiced by the

Court's use of inadmissible hearsay for the truth of the matter asserted [as] a basis for a trial

factual finding.', Id.

Defendant's argument is plainly contradicted by the record. On numerous occasions

during the waiver trial and suppression hearing, which were held simultaneously, the Court

stated on the record that it was not considering hearsay admitted for pwposes of the suppression

motion when deciding defendant's guilt. See N.T. 9/10/2013 at 90, 96; N.T.9111/2013 at 91,

151. In fact, with regards to the statement to which defendant is referring, the Court twice

explicitly stated it would not consider the statement when determining defendant's guilt. First,·

the fol lowing exchange took place during the direct testimony of Officer Forrest:

(The Witness): I believe she said three [black males] from the niece, she
said three.
[Defense Counsel): Well, that I would have to object then. Your Honor. Again,
if it's for both-
(Prosecution): It's not for both, it's for the motion.
[The Court): · I don 't think that I would or should and I will not consider
this. It's all hearsay. I'm not going to consider it.in any
manner except with regard to the two pending motions to
suppress.
JDefease Counsel]: 1hank you, Your Honor.

N.T. 9/10/2013 at 96. Next, while defense counsel was giving his closing he stated, ..lt is true,

Your Honor. that someone sees two or three black males getting into a white Cadillac over on

Redmond Street. but-", N.T. 9/1112013 at 151. As defense counsel was stating this, the Court

interrupted him and said. "Let me just say I wouldn't consider that because that was hearsay and

admissible only for purposes of the motion." N.T. 9/J 112013 at 151�152.

23
 Finally, finding of fact number three was a finding of fact on the suppression motions,

not the waiver trial. The Court made this clear before ann01mcing the findings:

· � 'm going to render some Findings of Fact and Conclusions of Law on those
motions so that counsel when they make their argument are aware of what
evidence is being admitted. Let me just Slate preliminarily these findings are by a
preponderance of the evidence. so I did not mean to foreclose counsel from
making any arguments that these findings are inconsistent with proof beyond a
reasonable doubt at the guilt stage of my decision.

N.T. 9/11/2013 at 139.

Accordinglyp inadmissible hearsay was not considered at all by the Court in determining

whether the defendant had been proven guilty. For that reason, neither trial nor appellate counsel

were ineffective for failing to raise this issue.

5. Motion to Suppress

Finally, defendant claims that ''trial counsel" was ineffective for failing "to preserve,

raise and argue a claim for direct appeal that the trial court erred in denying the Motion to.

Suppress," Statement of Matters at 1 Vl.11 Because the suppression motion was without merit,

this claim is without merit.

"In reviewing a ruling on II suppression motion. the standard of review is whether the

factual findings and legal conclusions drawn therefrom are supported by the evidence."

Commonwealth v. Wholaver, 989 A.2d 883, 896 (Pa. 2010) (quoting Commonwealth v.

Bronshtein; 691 A.2d 907, 913 (Pa. 1997)). Additionally, "[w]herethe record supports the

findings of the suppression court, [the reviewing court is] bound by those tacts and may reverse

only if the legal conclusions drawn therefrom are in error." Commonwealth v. Ligons, 971 A.2d ·

1.125, 1148 (Pa. 2009) (citation omitted).

11 Trial counsel also handled the direct appeal in this ease. Of course. he could only have been inelfedive for failing
to raise an issue on appeaJ in his role as appellate counsel.

24
 Here, defendant filed a motion to suppress all of the evidence seized from 1820 North

1 udson Street, the home where defendant was arrested. Police obtained a search warrant for the

premises and conducted a full search of the property pursuant to that warrant, Defendant never

challenged the validity of the search warrant and conceded that there was probable cause for the

search. However, before the warrant had been secured, police entered the property to conduct a

protective sweep of the premises in order to secure the property while awaiting the warrant. The

Commonwealth argued that the protective sweep was lawful under the exigent circumstances

exception to the warrant requirement Defendant contended that there were not sufficient exigent

circumstances, and therefore, the warrantless entry into the property was unconstitutional.

Under the exigent circumstances exception to the wan.mt requirement. a warrantless

entry into a home may be lawful ifjustified by both probable ca� and exigent circumstances.

See Commonwealth v. Bostick, 958 A.2d 543, 556--557 (Pa. Super. 2008). opp. denied, 987 A.2d

543 (Pa 2009). The relevant factors for the Court to consider are as follows:

(l) the gravity of the offense, (2) whether the suspect is reasonably
believed to be armed, (3) whether there is above and beyond a
clear showing of probable cause, (4) whether there is strong reason
to believe that the suspect is within the premises being entered, (5)
whether there is a likelihood that the suspect will escape if not
swiftly apprehended, (6) whether the entry was peaceable, and (7)
the time of the entry, i.e. whether it was made at night, •.. Other
factors may aJso be taken into accowit. such as whether there is hot
pursuit of a fleeing.felon, a likelihood that evidence will be
destroyed if police take time to obtain a warrant. or danger _to
police or other persons inside or outside the dwelling."

Commonwealth v. Roland, 637 A.2d 269, 270-271 (Pa. 1994); see Bostic� 958 A.2d at 557.

Here, as stated above, defendant did not dispute the existence of probable cause to search

the property. Accordingly, the legality of the initial search tmned on whether there were

sufficient exigent circumstances to justify the entry into the property before the warrant arrived.
 After all of the relevant evidence on this issue had been presented, the Court rendered findings of

fact and conclusions of law, addressing each of the factors relevant to exigency as set forth by

our Supreme Court in Roland See N.T.9/1112013 at 139-149. ·

First, as to the gravity of the offense, the Court found that the police reasonably believed

that people who were just involved in fatal shootings, a very serious offense. were present in the

house. Officer Kapusniak, while conducting a narcotics surveillance, saw a white Cadillac stop

near the house and observed three black males, including defendant, enter the home. N.T.

9/9f2013 at 95-96. Around the same time. he received a radio call of a shooting just a few blocks

away which described the assailants as two to three black men leaving the scene of the crime in a

white Cadillac. N.T. 9/912013 at 96, 123-1-24. Minutes thereafter, Officer Kapusniak observed

two different men enter the home and then leave with bags in their hands. N.T. 9/912013 at 97.
· 100. When police asked these men to stop, one of them fled, throwing the beg he was holding

over a fence. N.T. 9/9/2013 at 101. That bag was recovered and found to contain marijuana, a

gun holster, passports and a photo album. N.T. 9/912013 at 100-101, 138. Captain James Smith,

who was then a lieutenant, responded to the scene of the crime and saw immediately that two

victims had been shot dead. N.T. 9/11/2013 at 14·15. Accordingly. the police had compelling

reasons to believe that people involved in two murders were then present in the house.

Second. regarding whether. the suspects were armed, the above-described facts made it

highly likely that people in the house were anned, since they had just left the scene of a double

homicide committed with firearms.

Third, as to the showing of probable cause. as mentioned above, defendant conceded that.

the evidence clearly established probable cause to believe that the premises contained evidence

of a crime.

26
 Fourth, as to whether there is a strong reason to believe that the suspects were in the

premises to be entered, the police had observed three men, who likely had fled the scene of the

killings, enter the premises. It is true that police observed co-defendant James run out of the

house and jump into a vehicle, leaving the premises before ·the protective sweep. N. T. _9/9n.O 13

at 98-99. 12 However, the police knew that the other two men who had arrived in the Cadillac,

including defendant. were still inside.

Fifth, as to whether there· is a likelihood that the suspects would escape if not swiftly

apprehended. the Court credited the testimony of Captain Smith on this i_ssue. He testified that

because co-defendant James, and the two individuals who had left the house with bags, had

already been arrested by police, there was good reason to believe that the investigation may have

been compromised. N.T. 9/1 l/2013 at 19-21. Therefore, an attempted escape, accompanied by a

possible shootout, was a reasonable concern.

Sixth, as to whether the entry was peace.able, it was undisputed that the police entered the

premises through an unlocked open door. N.T. 9/912013 at 203.

Finally, as to the time of entry, the evidence showed that entry was made in the

afternoon, and not at �ght. N.T. 9/9/2013 at 189. · · ·

Accordingly, the record clearly established that exigent circumstances permitted the

police to enter the premises for a limited protective sweep while awaiting the arrival of the

search warrant. The police had compelling reasons to believe that people in the home were

armed and dangerous. that they had just committed a double murder, that the police investigation

may have been compromised due to the arrests of three people who had recently left the

12
The car that James was in was stDppod by police md he was am:sted with a large bag of marijuana. N.T.
919/2013 at 99-100.

27
•
.�

premises, and that there were real concerns of danger to police and the community should an

escape be attempted. For these reasons. the protective sweep was lawful.

Because the record established that the motion to suppress was without merit, appellate

counsel could hot have been ineffective for failing to raise the issue on direct appeal. No relief is

due.

Ill. CONCLUSION

For the foregoing reasons, the Court's order dismissing defendant's PCRA Petition

should be affirmed.

BY TIIE COURT:

GLENN B. BRONSON, J.

:·
,·

28
Commonwealth v. Montez Bethea
Type of Order. 192S(a) Opinion

PROOF OF SERVICE

I hereby certify that l arn this day serving the foregoing Court Order upon the personfs), and in
the manner indicated below, which service'satisfies the requirements of Pa.R..Crim.P.114:

Defense Counsel/Party:
Teri B. Himebangh, Esquire
2201 Pennsylvania Ave. #513
Philadelphia, PA 19130

Type of Service: ( ) Personal (X) First Class Mail ( ) Other, please specify:

District Attoraey:
Lawrence Goode, Esquire
Interim Supervisor, Appeals Unit
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107-3499

Type of Service ( ) Personal ( ) First Class Mail (X) Other, please specify: l11teroffice Mail

Additional Counsel/Party;

Joseph D. Seletyn, Esquire
Prothonotary
Office of the Prothonotary - Superior Court
530 Walnut Steer. Suite 31 S
Philadelphia, PA 19106

Type of Service: () Personal (X) First Class Mail () Other, please specify:

Dated: January 28, 2019

Thomas R. Smith
Law Clerk to Hon. Glenn B. Bronson