J-S32018-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DWAYNE WRIGHT : : Appellant : No. 493 MDA 2022
Appeal from the PCRA Order Entered March 21, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004113-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: NOVEMBER 17, 2022
Appellant, Dwayne Wright, appeals from the March 21, 2022 order
denying his petition for relief under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The PCRA court summarized the facts and procedural history of
Appellant’s case, as follows:
On June 12, 2018, Officers Jacob Bingham and Timothy Sinnot[] of the Lancaster City Bureau of Police (“LCBP”) were on patrol when they stopped a vehicle with an expired registration. The vehicle, a 2001 Ford Focus, was registered to Bruce Dates, who Officer Bigham [sic] later learned lived in Alabama. Officer Bingham approached the vehicle and spoke with the driver, [Appellant] Dwayne Wright, who provided Officer Bingham with photo identification. Officer Bingham ran [Appellant’s] identification and discovered that [Appellant’s] license was suspended. During the vehicle stop, Dispatch also informed Officer Bingham that [Appellant] had an outstanding warrant for a state parole violation. At that point, Officer Bingham and Officer Sinnot removed [Appellant] from his vehicle, placed him under arrest, and searched [Appellant’s] person. J-S32018-22
After [Appellant] was secured in the police cruiser, Officer Bingham conducted an inventory search of the Ford Focus and located a black jacket on the front passenger’s seat. ln the pocket of the black jacket, Officer Bingham found a clear plastic corner tie baggie containing cocaine. After finding the cocaine, Officers Bingham and Sinnot decided to obtain a warrant before searching the rest of the vehicle. Officer Bingham drove the vehicle to the police station and the [o]fficers obtained a search warrant for controlled substances.
When Officers Bingham and Sinnot executed the search warrant, they found a bag in the trunk containing powder cocaine, crack cocaine, and a firearm. The [o]fficers then applied for a second search warrant for firearms, weapons, and ammunition. When executing the second search warrant, the officers seized approximately 50 grams of cocaine, marijuana and related paraphernalia, two pistols, ammunition for both pistols, and cash totaling approximately $1,579.
[Appellant] was subsequently charged with two counts of firearms not to be carried without a license, two counts of possession with intent to deliver controlled substances, one count of person not to possess firearms, receiving stolen property, possession of drug paraphernalia, and driving while operating privileges are suspended or revoked.
On September 5, 2018, [Appellant], through his attorney, Edwin Pfursich, Esq., filed a Motion to Suppress the physical evidence seized from the vehicle. In his Motion, [Appellant] argued that Officer Bingham’s initial inventory search was conducted in violation of Pennsylvania Constitution Article I, Sections 8 and 9, as well as the United States Constitution Amendments 4, 5, and 6, and that all evidence discovered during that search and the subsequent searches should be suppressed. [The trial court] held a hearing on [Appellant’s] Motion on November 15, 2018, during which the facts set forth above were established. Following the hearing, both [Appellant] and the Commonwealth submitted supporting briefs. After considering the factual record established during the hearing and the arguments of counsel, [the court] determined that although Officer Bingham’s inventory search was improper under 75 Pa.C.S.[] § 6309.2—which governs the proper procedures for immobilization, towing, storage, and impoundment of vehicles driven without a license or proper registration—the inventory search and all subsequent searches were nonetheless valid pursuant to the inevitable discovery doctrine. Consequently,
-2- J-S32018-22
on February 27, 2019, [the court] denied [Appellant’s] Motion to Suppress.
[Appellant] was thereafter found guilty on all counts at a stipulated bench trial. [The court] ordered a pre-sentence investigation and, after receiving the report, sentenced [Appellant] to seven and a half to twenty years[’] imprisonment. [Appellant] subsequently filed a Notice of Appeal challenging, among other things, [the] denial of his Motion to Suppress. On October 26, 2020, the Superior Court affirmed [the trial court’s] decision to deny [Appellant’s] Motion to Suppress[,] and on May 12, 2021, the Pennsylvania Supreme Court denied [Appellant’s] Petition for Allowance of Appeal. [See Commonwealth v. Wright, 241 A.3d 461 (Pa. Super. 2020) (unpublished memorandum), appeal denied, 253 A.3d 222 (Pa. 2021).]
On July 17, 2021, [Appellant] filed the instant[,] pro se PCRA Petition. On August 10, 2021, [the court] appointed Christopher P. Lyden, Esq.[,] to represent [Appellant] and granted Attorney Lyden 60 days to file an amended petition. On September 23, 2021, Attorney Lyden filed a Motion to Extend Time to File Amended Petition. On September 27, 2021, [the PCRA court] granted Attorney Lyden 60 additional days to file an amended petition.
On December 7, 2021, [Appellant], through Attorney Lyden, filed the instant[,] Amended PCRA Petition (hereinafter “Amended Petition”)[,] in which [Appellant] argued that Attorney Pfursich was ineffective for failing to call a key witness—[Appellant’s] mother, Jacklyn Draughn—during the November 15, 2018[] suppression hearing. [Appellant] contended that had Officers Bingham and Sinnot simply immobilized the vehicle without executing an unconstitutional, warrantless search, Ms. Draughn and Mr. Dates—the owner of the Ford Focus—were available to take the steps necessary to take possession of the vehicle before it was towed such that the vehicle would not have needed to be searched, negating the applicability of the inevitable discovery doctrine. In support of his argument, [Appellant] averred that although Ms. Draughn was present at the time of his arrest and approached Officers Bingham and Sinnot, the Officers refused to turn the Ford Focus over to her and instead drove the vehicle from the scene. [Appellant] also asserted that Ms. Draughn later went to the police station and was again denied access to the Ford Focus. Notably, although [Appellant] requested an evidentiary
-3- J-S32018-22
hearing, he failed to include[,] as part of his Amended Petition[,] the witness certification required by 42 Pa.C.S.[] § 9545(d)(1).
On December 8, 2021, [the court] issued an Order directing the Commonwealth to file a response to the Amended Petition and the Commonwealth filed a response on December 28, 2021. On February 1, 2022, [the court] issued a Notice of Intent to Dismiss the Amended Petition without a hearing, explaining that [Appellant] had failed to comply with 42 Pa.C.S.[] § 9545(d)(1), that [Appellant] had previously litigated the claims set forth in his Amended Petition on direct appeal, that there were no genuine issues concerning any material fact, and that no purpose would be served by further proceedings. [The PCRA court] granted [Appellant] until February 21, 2022, to respond to the Notice.
In [Appellant’s] February 9, 2022[] Response, he included a witness certification (hereinafter “Certification”) for Ms. Draughn, signed by Attorney Lyden, setting forth Ms. Draughn’s personal information and the content of her proposed testimony. According to the Certification, Ms. Draughn would have testified to the following at a PCRA hearing:
She was present during the arrest of [Appellant] and during the subsequent search of the vehicle. She resided in Lancaster City at the time of this incident. She asked to have the vehicle turned over to her, but the officers refused. She saw an officer drive the vehicle off from the scene of the arrest. She went to the police station and asked to have the vehicle turned over to her, but again was denied. The police delivered the keys of the vehicle to Ms. Draughn’s residence the following Sunday. Mr. Bruce Dates, the owner of the vehicle, is her brother. She had the ability to communicate with Mr. Dates and, with his cooperation, do what was necessary to clear the registration and receive possession of the vehicle.
[Appellant’s] Response to Pa.R.Crim.P. 907 Notice, Certification, Feb. 9, 2022.
After reviewing [Appellant’s] response—including the attached Certification—in light of relevant case and statutory law, [the court] again found that no purpose would be served by holding a hearing and that [Appellant’s] claim had been previously litigated.
Consequently, [the PCRA court] issued an Order dismissing [Appellant’s] Amended Petition on March 21, 2022. On March 22,
-4- J-S32018-22
2022, [Appellant] filed a counseled Notice of Appeal to the Superior Court from [the] March 21st Order. [Appellant] filed his [Pa.R.A.P. 1925(b)] Concise Statement of Errors [Complained of on Appeal] on March 29, 2022, to which the Commonwealth responded on April 11, 2022.
PCRA Court Opinion (PCO), 6/21/22, at 1-6 (footnotes and citations to the
record omitted). The PCRA court filed its Rule 1925(a) opinion on June 21,
2022.
Herein, Appellant states one issue for our review: “Did the PCRA court
err by concluding that Appellant’s claim raised in his PCRA petition was
meritless and previously litigated?” Appellant’s Brief at 4 (unnecessary
capitalization omitted).
Initially, it is well-settle that,
[o]n appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. We apply a de novo standard of review to the PCRA court’s legal conclusions.
Commonwealth v. Wharton, 263 A.3d 561, 567 (Pa. 2021) (cleaned up).
In assessing Appellant’s issue, we have reviewed the certified record,
the briefs of the parties, and the applicable law. Additionally, we have
examined the well-reasoned opinion of the Honorable Jeffery D. Wright of the
Court of Common Pleas of Lancaster County. We conclude that Judge Wright’s
comprehensive opinion accurately disposes of the issue presented by
Appellant. See PCO at 7-13. Accordingly, we adopt Judge Wright’s opinion
-5- J-S32018-22
as our own and affirm the order denying Appellant’s PCRA petition for the
reasons set forth therein.1 ____________________________________________
1 On November 2, 2022, Appellant filed a motion to proceed pro se, stating that he wishes to raise ineffective assistance of counsel claims against his current attorney, Christopher P. Lyden, Esq., under our Supreme Court’s holding in Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021) (holding “that a PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on appeal”) (emphasis added). We grant Appellant’s motion to proceed pro se only to the extent that we will consider his pro se claims of ineffectiveness of PCRA counsel in accordance with Bradley. In his motion, Appellant first alleges that Attorney Lyden was ineffective for failing “to comply with the requirements set forth in 42 Pa.C.S.[] § 9545(d)(1) by not attaching proper certifications for proposed PCRA hearing witnesses.” Motion to Proceed Pro Se, 11/2/22, at 2 ¶ i(a) (unnumbered). However, Appellant cannot prove this claim has arguable merit. See Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (“It is well-established that counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves all of the following: (1) the underlying legal claim is of arguable merit; (2) counsel’s action or inaction lacked any objectively reasonable basis designed to effectuate his client’s interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome if not for counsel’s error.”) (citations omitted). While Attorney Lyden did not attach proper certifications to his initial, amended petition filed on Appellant’s behalf, he attached a witness certification for Ms. Draughn to his response to the court’s Rule 907 notice. The court reviewed and considered that witness certification, but still determined no evidentiary hearing was warranted. See PCO at 6. Thus, Appellant is incorrect that Attorney Lyden failed to satisfy section 9545(d)(1) and, therefore, his first ineffectiveness claim fails. Likewise, his other two ineffectiveness claims also fail, as they are mere boilerplate assertions that are not specific enough to indicate they have any arguable merit. See Motion to Proceed Pro Se at 2 ¶ i(b), (c) (unnumbered) (alleging PCRA counsel “failed to properly inform Appellant of any and all decisions or circumstances with respect to which the client’s informed consent [was required,]” and that “[c]ounsel was ineffective for failing to place the Commonwealth[’s] case under the adversarial process as guaranteed by Commonwealth v. Crispell, 193 A.3d 919 (Pa. 2017)”). Finally, we note that Appellant’s Motion to Proceed Pro Se also raises claims that the PCRA judge should recuse from this case. (Footnote Continued Next Page)
-6- J-S32018-22
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/17/2022
____________________________________________
However, Appellant cites no legal authority permitting him to raise this claim pro se when he is still represented by Attorney Lyden. See Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016) (“In this Commonwealth, hybrid representation is not permitted. Accordingly, this Court will not accept a pro se motion while an appellant is represented by counsel….”) (internal citation omitted). Therefore, we deny his Motion to Proceed Pro Se regarding this claim.
-7- Circulated 11/07/2022 12:43 PM
COURT OF COMMON PLEAS OF LANGASTER COUNTY,PENNSYLVANIA CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
V. 4113-2018
DWAYNE WRIGHT ca ca PA. R.A. P. 1925 OPINION
BY: WRIGHT, J. June _ j..• , 2l)22
Dwayne Wright ("Petitioner") has filed an appeal to the Superior Court of
Pennsylvania from this Court's Order enteredon March 21, 2422 ,dismissing without a
hearing his Amended Petition for Post Conviction Collateral Relief. This Opinion is
written pursuant to Rule 1925( a) of the Pennsylvania Rules of Appellate Procedure,
and, for the reasons stated herein,Petitioner' sAppeal should be dismissed_
BACKGROUND
On June 12, 2018 ,Officers Jacob Bingham and Timothy Sinnott of the Lancaster
City Bureau of Police (" LCBP") were on patrol when they stopped avehicle with an
expired registrat ion. (Notes of Testimony,Suppression Hearing,Nov. 15 ,2018, at fi
[hereinafter " N.T, at — p]). The vehicle.a2001 Ford Focus,was registered to Bruce
Dates,who Officer Blgham later learned lived in Alabama. (N.T. at 5). Officer Bingham
approached the vehicle and spoke with the driver,Petitioner Dwayne Wright, who
'The factual recitation included below was lamely lifted from the Opinion Iauthored in r+espanse to 8 direct appeal that Petitioner filed with the Superior Court on September 4, 2019.The Superior court denied said appeal on October 25, 2020. 1 provided Officer Bingham with photo identification. (N.T. at 6). Officer Bingham ran
Petitioner's identification and discovered that Petitioner's license was suspended. (N.T.
at 6--7). During the vehicle stop, Dispatch also informed Officer Bingham that Petitioner
had an outstanding warrant for astate parole violation. (N.T. at 8). At that point, Officer
Bingham and Officer Sin not removed Petitioner from his vehicle, placed him under
arrest, and searched Petitioner's person. (N.T. at 8).
After Petitioner was secured in the police cruiser, Officer gingham conducted an
inventory search of the Ford Focus and located ablack jack.et on the front passenger's
seat. (N.T. at 9-10). In the pocket of the black jack.et, Officer Bingham found aclear
plastic comer tie baggie containing cocaine. (N.T. at 12-13). After finding the cocaine,
Officers Bingham and Sinnot decided th obtain awarrant before searching the rest of
the vehicle. (N.T. at 13). Officer Bingham drove the vehicle to the police station and
the Officers obtained asearch warrant for controlled substances. (N.T. at 15).
When Officers Bingham and Sinnot executed the search warrant, they found a
bag Inthe trunk. containing powder cocaine, crack cocaine, and afirearm. The Officers
then applied for asecond search warrant for firearms, weapons, and ammunition.
When executing the second search warrant, the officers seized approximately 50 grams
of cocaine, marijuana and related paraphernalia, two pistols, ammunition for both
pistols, and cash totaling approximately $ 1,579.
Petitioner was subsequently charged with two counts of firearms not to be carried
without alicense, two counts of possession with intent to deliver controlled substances,
2 one count of person not to possess firearms, receiving stolen property, possession of
drug paraphernalia, and driving while operating privileges are suspended or revoked. 2
On September 5 2018, Petitioner, through his attorney, Edwin Pfursich, Esq.,
filed aMotion to Suppress the physical evidence seized from the vehicle. In his Motion,
Petitioner argued that Officer Bingham's initial inventory search was conducted n
violation of Pennsylvania Constitution Article I, Sections 8and 9, as well as the United
States Constitution Amendments 4, 5, and 6, and that all evidence discovered during
that search and the subsequent searches should be suppressed. Iheld ahearing on
Petitioner's Motion on November 15, 2018, during which the facts set forth above were
established. Following the hearing, both Petitioner and the Commonwealth submitted
supporting briefs. After considering the factual record established during the hearing
and the arguments of counsel, Idetermined that although Officer Bingham's inventory
search was improper under 75 Pa C.S.A. § 6309.2-which governs the proper
procedures for immobilization, towing, storage, and impoundment of vehicles driven
without alicense or proper registration-the inventory search and all subsequent
searches were nonetheless valid pursuant to the inevitable discovery doctrine.
Consequently, on February 27, 2019, 1 denied Petitioner's Motion 10 Suppress.
Petitioner was thereafter found guilty on all counts at astipulated bench trial . I
ordered apre-sentence investigation and, after receiving the report, sentenced
Petitioner to seven and a half to twenty years imprisonment. Petitioner subsequently
filed aNotice of Appeal challenging, among other things, my denial of his Motion to
2 18 Pa.CSA§ 6106(a)(1); 18 Pa.CS.A. § 6105(a)(1); 18 Pa.CS.A. § 3925(a); 35 P § 780- 111(a)(30). (32); 75 Pa .C.S A. § 1543(a). 3 Suppress.3 On October 26, 2020, the Superior Court affinned my decision to deny
Petitioner's Motion to Suppress and on May 12, 2021, the Pennsylvania Supreme Court
denied Petitioner's Petition for Allowance of Appeal.
On July 17, 2021, Petitioner filed the instant prose PCRA Petition. On August
10, 2021, 1appointed Christopher P. Lyden, Esq. to represent Petrtioner and granted
Attorney Lyden 60 days to file an amended petition. On September 23, 2021, Attorney
3 The complex procedural history preceding Petitioner's direct appeal of my ruling on his Motion to Suppress, aptly summarized by the Superior Court, is as follows: [Petitioner] filed aNotice of Appeal cn July 11, 2019, and the trial court directed [Petitioner] to file a Pa-R.A.P. 1925(b) concise statement of errors complained of on appeal. On July 22, 2019, [Petitioner] filed acounseled Post-Sentence Motion, indicating his intention to discontinue the appeal, and challenging the legality of the sentences imposed for his fireanns not th be carried without a license convictions. Specifically, [Petitioner] argued that the firearms not to be carved without a license offenses, which were graded as felonies of the third degree, cany astatutory maximum sentence of 7years; however, the trial court imposed concurrent terms of 5to 10years n prison. [Petitioner] also acknowledged that modification of these individual sentences would not alter the aggregate sentence, as they were ordered th run concurrently with all other sentences. Only July 29, 2019, the trial court entered an Order modifying the sentences for firearms not to be carried without alicense to concurrent terms of T/Z th 7years in prison.
On September 3• 2019, [Petitioner], through new counsel, filed a Petition for relief pursuant to the Post Conviction Relief Act ("PCRA") . . , . Therein, [Petitioner] alleged that because trial counsel did not withdraw the July 11, 2019, Notice of Appeal, the Post-Sentence Motion, filed while the appeal was still pending, was a legal nullity. [Petitioner] therefore averred that he was denied effective assistance of counsel, and sought reinstatement of his direct appeal rights, nunc pro tune. On the same date, the PCRA court granted [Petitioner's] PCRA Petition, restored his direct appeal rights, and directed him th file anotice of appeal within 30 days.
Commonwealth V. Wright, 1468 MDA 2019, 2020 WL 6268281, at 2 (Pa. Super., Oct. 26, 2020) (nonprecedentlal). 4 Lyden filed aMotion to Extend Time to File Amended Petition- On September 27, 2021,
1 granted Attorney Lyden 60 additional days to file an amended petition.
On December 7, 2021, Petitioner, through Attorney Lyden, filed the instant
Amended PCRA Petition {hereinafter "Amended Petition") in which Petitioner argued
that Attorney Pfursich was ineffective for failing to call akey witness- Petitioner's
mother, Jacklyn Draughn-during the November 15, 2018, suppression hearing.
Petitioner contended that had Officers Bingham and S1nnot simply immobilized the
vehicle without executing an unconstitutional, warrantless search, W. Draughn and Mr.
Dates-the owner of the Ford Focus-were available th take the steps necessary to
take possession of the vehicle before ii was towed such that the vehicle would not have
needed to be searched, negating the applicability of the inevitable discovery doctrine.
In support of his argument, Petitioner averred that although Nis. Draughn was present at
the time of his arrest and approached Officers Binnham and Sinnot, the Officers refused
to turn the Ford Focus over to her and instead drove the vehicle from the scene.
Petitioner also asserted that Ms. Draughn later went to the police station and was again
denied access to the Ford Focus. Notably, although Petitioner requested an evidentiary
hearing, he failed to include as part of his Amended Petition the witness certification
required by 42 Pa. C.S.A. § 9545(d)(1).
On December $ 2021, 1issued an Order directing the Commonwealth to file a
response to the Amended Petition and the Commonwealth filed a response cn
December 28, 2021. On February 1, 2022, 1issued aNotice of Intent to Dismiss the
Amended Petition without ahearing, explaining that Petitioner had failed to comply with
42 Pa C.S.A. § 9545(d)(1), that Petitioner had previously litigated the claims set forth in
5 his Amended Petition cn direct appeal, that there were no genuine issues concerning
any material fact, and that no purpose would be served by further proceedings. I
granted Petitioner until February 21, 2022, to respond to the Notice.
In Petitioner's February 9, 2022, Response, he included awitness certification
(hereinafter "Certification") for Ms. Draughn, signed by Attorney Lyden, setting forth Ms.
Oraughn's personal information and the content of her proposed testimony. According
to the Certification, Ms. Draughn would have testified to the following at aPCRA
hearing:
She was present during the arrest of [Petitioner] and during the subsequent search of the vehicle. She resided in Lancaster City at the time of this incident. She asked to have the vehicle turned over to her, but the officers refused. She saw an officer drive the vehicle off from the scene of the arrest. She went to the police station and asked to have the vehicle turned over to her, but again was denied. The police delivered the keys of the vehicle to Ms. Draughn's residence the following Sunday. W. Bruce Dates, the owner of the vehicle, is her brother. She had the ability th communicate with Mr. Oates and, with his cooperation, do what was necessary to clear the registration and receive possession of the vehicle.
Petitioner's Response to Pa.R.Crim.P. 907 Notice, Certification, Feb. 9, 2022.
After reviewing Petitioner's response-including the attached Certificaf1 on-; c
light of relevant case and statutory law, Iagain found that no purpose would be served
by holding ahearing and that Petitioner's claim had been previously litigated.
Consequently, Iissued an Order dlsmIssing Petitioner's Amended Petition on March 21,
2022,
On March 22, 2022, Petitioner filed acounseled Notice of Appeal to the Superior
Court from my March 21 st Order. Petitioner filed his Concise Statement of Errors cn
March 29, 2022, th which the Commonwealth responded on April 11, 2022.
6 DISCUSSION
In his Statement of Errors, Petitioner argues that Ierred in denying his Amended
Petition on the ground that his claim had been previously litigated. According to
Petitioner, Ms. Draughn's testimony was necessary to prove that the contraband found
in the Ford Focus would not have been inevitably discovered. Consequently, Petitioner
claims that Attorney Pfursich was ineffective for failing to introduce her testimony at the
suppression hearing and seeks to distinguish his allegation of ineffective representation
from the claim he already litigated on direct appeal.- After reviewing the basic statutory
requirements for post conviction relief, I will address Petitioner's argument that his claim
has not been previously litigated while also outlining why, even if it had not been
previously litigated, Petitioner's claim is merilless.
The Post Conviction Relief Act provides for an action by which an individual
convicted of acrime they did not commit or serving an illegal sentence may obtain
collateral relief. 42 Pa. C.S.A. § 9542. Ordinarily, a PCRA Petition must be filed within
one year of the date that the judgment becomes final. kI § 9545(b)(1). For purposes of
the PCRA, 'bjudgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the Supreme Court
• Petitioner also claims that Ierred by denying his Amended Petition for failing to comply with the certification requirements of 42 Pa. C.S.A § 9545. However, my final Order dismissing the instant Petition was not based on Petitioner's failure to submit the witness certification required by Section 9545. In fact, Petitioner did submit awftness certification 1n his response to my 907 Notice of Intent to Dismiss, which I considered when determining the ultimate viability of Petitioner's Amended Petition. 7 of Pennsylvania, or at the expiration of time for seeking the review." kIat § 9545(b)(3).
The instant Petition was timely filed. 5
To be eligible for relief under the PCRA. Petitioner must also plead and prove all
of the elements of the statute by apreponderance of the evidence. kI § 9543(a). First.
Petitioner must have "been convicted of acrime under the laws of this Commonwealth,"
and must be imprisoned, on probation, or on parole at the time that relief is requested.
kI § 9543(a)(1 )( kiii). Petitioner was sentenced on July 10, 2019, and is still serving his
sentence. Accordingly, this element is established. Second, Petitioner must prove that
his sentence or conviction was the result of one or more errors enumerated n the
statute. kI § 9543(a)(2). A Petitioner may bring aPCRA claim alleging, among other
violations, "ineffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place." k..§ 9543{a)(3)(1i). Here,
Petitioner claims that Attorney Pfursich was ineffective for failing to call Ms. Draughn
during the November 15, 2018, suppression hearing.
Third ; Petitioner must show that the issue has not been previously litigated or
waived. . k § 9543(a). (b). Case law makes it clear that "[a] petitioner cannot obtain
PCRA relief by advancing variations of claims previously litigated and then alleging
ineffective assistance of prior counsel for not presenting these theories."
Commonwealth v Carpenter. 725 A.2d 154, 162 (Pa. 1999). In his direct appeal to the
Superior Court, Petitioner argued that Ierred `1ndenying his Motion to Suppress on the
5 Petitioner's judgment of sentence became final on June 4, 2021, when the Supreme Court denied his Petition for Allowance of Review. He filed his original prose PCRA Petition on July 14, 2021. s basis of the doctrine of inevitable discovery. At issue n Petitioner's Motion to Suppress,
and on appeal to the Superior Court, were the requirements set forth in 75 Pa. C.S.A. §
6309.2, which governs the proper procedures for immobilization, towing, storage, and
'impoundment of vehicles driven without alicense or proper registration.
Section 6309.2(a)(2) provides.-
If a motor vehicle _ for which there is no valid registration or for which the registration is suspended, as verified by an appropriate law enforcement officer, is operated on ahighway or trafficway of this Commonwealth, the law enforcement officer shall immobilize the motor vehicle _ or, in the interest of public safety, direct that the vehicle be towed and stored by the appropriate towing and storying agent _. and the appropriate judicial authority shall be so notffied.
75 Pa. C.S.A.§ 6309.2(a)(2). In ruling cn Petitioner's Motion to Suppress, Iheld that
Officers Bingham and Slnnot had grounds only to immobilize the Ford Focus- not to
tow and impound the vehicle- because the vehicle posed no risk to public safety.
Consequently, as established by Pennsylvania precedent, the inventory search
performed on the Ford Focus was improper. See Commonwealth v Lagenella. 83
A.3d 94 (Pa. 2013).
1ultimately determined, however, that none of the physical evidence seized
during any of the searches needed to be suppressed because the evidence was
admissible under the doctrine of inevitable discovery. The Superior Court came to the
same conclusion, as set forth below:
Next, we turn to the legality of the inventory search performed by Officer Bingham while [Petitioner] was detained hthe police cruiser and the vehicle was at the scene. We first note that [Petitioner] does not contest the validity of the initial traffic stop. Rather, [Petitioner] challenges the search of the vehicle after it was immobilized.
9 •.
.Mhe suppression court concluded that the evidence seized from the vehicle was admissible under the doctrine of inevitable discovery. The doctrine of inevitable discovery
provides that evidence which would have been discovered was sufficiently purged of the original illegality to allow admission of the evidence. Implicit in this doctrine is the fact that the evidence would have been discovered despite the initial illegality.
If the prosecution can establish by a preponderance of the evidence that the illegally obtained evidence ultimately or inevitably would have been discovered by lawful means, then the evidence is admissible. The purpose of the inevitable discovery rule is to block setting aside convictlons that would have been obtained without the police misconduct. Thus, evidence that ultimately or inevitably would have been recovered by lawful means should not be suppressed despite the fact that its actual recovery was accomplished through illegal actions.
Commonwealth v. Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009) (citations, quotation marks, and brackets omitted).
Recovery of a vehicle, whether 1t is immobilized or impounded, requires the owner to produce avalid proof of registration. See id. §6309.2(b)(1)(i), {d){1)(i).
Here, the record refiects that [Mr.] Dates did not appear before an appropriate judicial authority with the necessary paperwork within 24 hours of the vehicle's immobilization, al which time the police could tow the vehicle, and conduct an inventory search. See Lanqella, 83 A.3d at 105 (Pa. 2013) (stating that "only upon the vehicle operator's failure to obtain acertificate of release within 24 hours will the judicial authority notify law enforcement, who, at that time, shall arrange for the towing and storage of the vehicle), 106 (stating that "a warrantless inventory search of a vehicle is permissible only when the police have lawfully owed and stored, or impounded the vehicle.") Accordingly, we affirm the suppression court's denial of Wright's Motion to Suppress, based on the doctrine of inevitable discovery. 10 Wriqht, 2020 W L6268281, at 7
As stated by the Superior Court, Pennsylvania law provides that to prevent
towing, storage, and the eventual inventory search of avehicle immobilized for lack of a
valid registration, the owner of the vehicle must appear before the appropriate judicial
authority within 24 hours and must furnish the necessary papeiwork. 75 Pa. C.S.A. §
6309.2(b)(2) (emphasis supplied). The Superior Court conclusively determined that
because Mr. Dates did not in fact appear before the appropriate judicial authority within
24 hours, the inevitable discovery doctrine applied and cured any issue of admissibility
of the evidence uncovered during the various searches of the Ford Focus. Thus, any
argument that the doctrine of inevitable discovery is somehow inapplicable to
Petitioner's underlying case- even an argument that is cloaked in aclaim of ineffective
assistance of counsel- has been previously litigated.
Even assuming, arguendo, that Petitioner had not previously litigated his claim,
his argument that Attorney Pfursich was ineffective in failing to call Ms. Draughn during
the suppression hearing is baseless. To prevail cn aclaim of ineffective assistance of
counsel, apetlt'loner must show by apreponderance of the evidence that "(1) the underlying
claim Isof arguable merit; (2) the particular course of conduct pursued by counsel had no
reasonable basis designed in effectuate [the petitioner's] interests; and (3) but for counsel's
ineffectiveness, there is areasonable probability that the outcome of the proceedings would
have been different." Commonwealth v. Lambert, 797 A.2d 232, 243 (Pa. 2001);
Commonwealth v. Chmiel, 30 A.3d 111, 1127 (Pa. 2011); see Commonwealth v. Pierce,
527 A.2d 973 (Pa. 1987); see also Strickland v. Washington, 466 U.S. 668 (1984). A
petitioner must satisfy all three elements of the test; failure b meet any single prong of the
11 test is fatal b the ineffectiveness claim. Commonwealth v. Walker, 36 A.3d 1, 7 (Pa. 2011)
(citing Commonwealth v. Basemore, 744 A.2d 717, 738 n.23 (Pa. 2000)). Further, acourt is
not required b analyze the elements of an ineffectiveness claim in any particular order, but,
if aclaim fails b meet an element of the test, the court may proceed to analyze that element
first. Commonwealth v Hannibal, 156 A.3d 197,207 {Pa. 2016).
Petitioner's claim of ineffective assistance fails on the first prong. Arguable merit is
present ' when the factual statements are accurate and 'could establish cause for relief."'
Commonwealth v. Barnett, 121 A.3d 534,540 (Pa. Super. 2015) (quoting Commonwealth v.
Stewart, 84 A.3d 701, 707 (Pa. Super. 2013). In the Certification attached b Petitioner's
Response to my 907 Notice, Petitioner provides that, Ifcalled, Ms. Draughn would have
testified to the following facts: she was present during Petitioner's arrest and the search of
the Ford Focus; she asked to have the vehicle turned over to her but the Officers refused;
she went b the police station and again, b rD avail, asked for the vehicle to be turned over
to her, Mr. Dates, the owner of the vehicle, Is her brother; and she had the ability to
communicate with Mr. Dates, and with his cooperation, to do what was necessary b clear
the registration and receive possession of the vehicle. Ms. Draughn's testimony that she
was able b "do what was necessary to clear the registration and receive possession of the
vehicle" simply misses the statutory mark of what was required to avoid an inventory search
of the vehicle. Mr. Dates himself- not Ms. Draughn with Mr. Dates' cooperation-would
have had to appear before the appropriate judicial authority with the proper documentation
within 24 hours of Petitioner's arrest to recover the vehicle and b prevent an inventory
search. Nothing set forth h Ms. Draugh's proposed testimony n any way changes the
analysis of the applicability of the inevitable discovery doctrine. This simple fact stands:
Mr. Dates did not appear b do what was necessary to recover the vehicle and Ms.
12 Draughn's testimony in no way suggests that he had the ability or intention b do so. Thus,
Attorney Pfursich cannot be found ineffective for failing to call Ms. Draughn as a
suppression hearing witness.
CONCLUSION
For these reasons, Petitioner's claim was previously litigated before the Superior
Court and is also meritless. Petitioner is not entitled to post conviction relief and his
appeal should be dismissed. Accordingly, Ienter the following:
13 COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL
DWAYNE WRIGHT
ORDER .a" AND NOW. this L1 day of June, 2022, the Court hereby submits this
Opinion pursuant to Rule 1025(x) of the Pennsylvania Rules of Appellate Procedure.
BY THE COURT:
JEFFERY*0.WRIGHT JUDG
Copies to: Andrew J. Gonzalez, Esq., ADA Christopher Lyden, Esq.