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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EDWARD LOWE BAKER, JR. :
:
Appellant : No. 911 WDA 2021
Appeal from the PCRA Order Entered June 29, 2021
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0001284-2016
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MARCH 10, 2022
Edward Lowe Baker, Jr. (Baker) appeals from the June 29, 2021 order
of the Court of Common Pleas of Beaver County (PCRA court) dismissing his
petition pursuant to the Post-Conviction Relief Act.1 We affirm.
We have previously summarized the facts of this case as follows:
[Baker’s] former girlfriend, Addaleigh Huzyak (“the Victim”) ended
their six-month relationship in late May of 2016. Late in the
evening on June 5, 2016, [Baker] entered the Victim’s apartment
and waited for her to come home from her shift at work, which
ended at 11:00 p.m. When the Victim arrived home, she was
annoyed to see [Baker] and said she was going to call for help.
[Baker] shot her in the face to disable her, slit her throat twice,
fatally shot her in the back of the head, and then had sexual
intercourse with her. [Baker] escaped through a window.
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541 et seq.
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Authorities apprehended [Baker] in Winchester, Kentucky, on
June 7, 2016. Pennsylvania State Troopers Jason Domenick and
Christopher Birckbichler proceeded to Winchester that day and
interviewed [Baker] in the Winchester Police Station. Prior to the
interview, Trooper Birckbichler discussed with [Baker] his
Miranda2 rights, and [Baker] completed a waiver form. During
the interview, [Baker] confessed to killing the Victim. [Baker] was
extradited to Pennsylvania the next day. Prior to trial, [Baker]
filed a motion to suppress his confession and a petition for writ of
habeas corpus, which the trial court denied.
2 Miranda v. Arizona, 384 U.S. 436 (1966).
Commonwealth v. Baker, 201 A.3d 791, 794–95 (Pa. Super. 2018)
(citations omitted), allocator denied, 215 A.3d 963 (Pa. June 19, 2019). Baker
was convicted of first-, second- and third-degree murder, rape, burglary and
criminal trespass.2 He was sentenced to an aggregate term of life
imprisonment with a consecutive period of ten to twenty years’ incarceration.
On direct appeal, Baker challenged the sufficiency and weight of the
evidence to support his convictions and the denial of his motion to suppress
his confession. He argued that his confession was involuntary because the
Pennsylvania State Troopers who interviewed him in Kentucky did not inform
him that his family had retained counsel on his behalf. Trial counsel had told
the troopers that Baker should not be interviewed without counsel present.
Id. at 801-02. Relying on Moran v. Burbine, 475 U.S. 412 (1986), we
concluded that Baker’s waiver of his Miranda rights and subsequent
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2 18 Pa.C.S. §§ 2502(a)-(c), 3121(a)(1), 3502(a)(2) & 3503(a)(1)(i).
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confession were knowing and voluntary. Id. We affirmed his judgment of
sentence and our Supreme Court denied further review.
Baker filed the instant timely petition on March 6, 2020, arguing that
trial counsel was ineffective for failing to seek suppression on the basis that
he had invoked his right to counsel before he gave his videotaped confession.
He averred that after his arrest, he was interviewed by a pretrial services
employee who asked him if he wanted an attorney. He responded that he did.
Baker alleged that the troopers who interviewed him were aware that he had
spoken with this woman but sought a Miranda waiver and interrogated him
regardless. He contended that his confession would have been suppressed if
trial counsel had raised this issue.
The PCRA court appointed counsel who subsequently filed a petition to
withdraw and a Turner/Finley3 no-merit letter. Counsel concluded that
Baker was not entitled to relief because his claim had been previously litigated,
as trial counsel had challenged the voluntariness of Baker’s Miranda waiver
in the trial and appellate proceedings. The PCRA court issued a notice of intent
to dismiss the petition without a hearing. Baker filed a pro se response
arguing that the issue raised in his petition was distinct from the suppression
claim trial counsel had litigated.
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3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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The PCRA court subsequently issued an order and opinion dismissing
the petition and granting PCRA counsel’s petition to withdraw. It held the
claim had no arguable merit and that trial counsel had a reasonable basis
pursuing alternate grounds for suppression. Baker timely appealed. The
PCRA court did not order him to file a concise statement pursuant to Pa. R.A.P.
1925(b), but issued a brief statement referring to its opinion and order as the
basis for dismissing the petition.
Baker raises two issues on appeal: whether trial counsel was ineffective
for failing to argue that he validly invoked his right to counsel during his
pretrial services interview and whether the PCRA court erred in dismissing his
petition without a hearing.4 He argues that after he invoked his right to
counsel when speaking to the pretrial services employee, the troopers were
prohibited from interrogating him under Edwards v. Arizona, 451 U.S. 477
(1981). As his issues are related, we address them together.
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4 “The standard of review of an order dismissing a PCRA petition is whether
that determination is supported by the evidence of record and is free of legal
error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017).
“The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Id. (citation omitted). “[A] PCRA court
has discretion to dismiss a PCRA petition without a hearing if the court is
satisfied that there are no genuine issues concerning any material fact; that
the defendant is not entitled to post-conviction collateral relief; and that no
legitimate purpose would be served by further proceedings.”
Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super. 2017) (citations
omitted).
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Initially, the Commonwealth argues that Baker is not entitled to relief
because his suppression claim was previously litigated. See 42 Pa.C.S.
§ 9543(a)(3) (stating that to be eligible for PCRA relief, a petitioner must
plead and prove that “the allegation of error has not been previously litigated
or waived”). We disagree. A claim is previously litigated if “the highest
appellate court in which the petitioner could have had review as a matter of
right has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2). “Whether
an issue was previously litigated turns on whether [the issue] constitutes a
discrete legal ground or merely an alternative theory in support of the same
underlying issue that was raised on direct appeal.” Commonwealth v.
Small, 980 A.2d 549, 569 (Pa. 2009) (cleaned up).
Baker argued in the trial and appellate proceedings that his confession
was involuntary because trial counsel had told the troopers not to interview
him without counsel present. Here, he argues that he personally invoked his
right to counsel before his confession, independent of his attorney’s
instructions to the troopers. This is not merely a different theory in support
of the same issue, but rather a discrete basis for relief. Small, supra. Neither
the trial court nor this Court has addressed whether Baker invoked his right
to counsel; we only passed on whether trial counsel’s actions outside of
Baker’s knowledge rendered his waiver involuntary. Accordingly, the instant
issue has not been previously litigated and we proceed to consider the merits.
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“[T]o succeed on an ineffectiveness claim, a petitioner must
demonstrate that: the underlying claim is of arguable merit; counsel had no
reasonable basis for the act or omission in question; and he suffered prejudice
as a result[.]” Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015)
(citations omitted). Counsel cannot be ineffective for failing to pursue a
meritless claim. Commonwealth v. Tarver, 420 A.2d 438, 438 (Pa. 1980).
Finally, we presume that counsel has rendered effective assistance. See
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015).
Baker argues that trial counsel was ineffective for failing to assert that
his confession should be suppressed under the Miranda-Edwards line of
cases because he invoked his right to counsel during his bail interview. The
United States Supreme Court has explained:
In [Miranda], we established a number of prophylactic rights
designed to counteract the “inherently compelling pressures” of
custodial interrogation, including the right to have counsel
present. Miranda did not hold, however, that those rights could
not be waived. On the contrary, the opinion recognized that
statements elicited during custodial interrogation would be
admissible if the prosecution could establish that the suspect
“knowingly and intelligently waived his privilege against self-
incrimination and his right to retained or appointed counsel.”
In [Edwards], we established a second layer of prophylaxis for
the Miranda right to counsel: Once a suspect asserts the right,
not only must the current interrogation cease, but he may not be
approached for further interrogation “until counsel has been made
available to him,”—which means, we have most recently held, that
counsel must be present, Minnick v. Mississippi, 498 U.S. 146
[] (1990). If the police do subsequently initiate an encounter in
the absence of counsel (assuming there has been no break in
custody), the suspect’s statements are presumed involuntary and
therefore inadmissible as substantive evidence at trial, even
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where the suspect executes a waiver and his statements would be
considered voluntary under traditional standards.
McNeil v. Wisconsin, 501 U.S. 171, 176–77 (1991) (cleaned up). A suspect
must invoke his right to counsel unambiguously to end an interrogation.
Commonwealth v. Frein, 206 A.3d 1049, 1065 (Pa. 2019).
Baker is entitled to no relief. As the PCRA court noted, the protections
of Miranda and Edwards apply to a suspect who is subject to custodial
interrogation. Here, Baker asserts that he informed a pretrial services
employee that he wanted an attorney during a bail interview following his
arrest. While he was undisputedly in custody, our Supreme Court has held
that bail interviews and other routine booking questions are not
“interrogation” for the purposes of Miranda. Commonwealth v. Daniels,
644 A.2d 1175, 1181 (Pa. 1994) (“[I]nformation obtained via routine
questions designed to secure biographical data necessary to complete booking
or pre-trial services is exempt from Miranda’s coverage.”). At his suppression
hearing, Baker testified that in addition to asking if he needed an attorney,
the employee asked him for biographical data such as his Social Security
number, address and father’s name. N.T., 10/21/16, at 74-75. He confirmed
that this interview was related to his bail conditions. Id. He did not testify,
and there is no indication in the record, that the employee asked him any
questions regarding his offenses or designed to elicit a confession.
Pursuant to Daniels, this interview was not an interrogation and Baker’s
rights under Miranda and Edwards were not implicated. Accordingly, trial
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counsel was not ineffective for failing to argue that Baker invoked his right to
counsel during this interview. His Fifth Amendment right to counsel attached
when he was later subjected to custodial interrogation by the troopers, and
we previously determined that Baker knowingly and voluntarily waived his
right to counsel at that time. Baker, supra. Additionally, as there are no
genuine issues of material fact, the PCRA court did not err in dismissing the
petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2021
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