Commonwealth v. Garnett

613 A.2d 569, 418 Pa. Super. 58, 1992 Pa. Super. LEXIS 2504

• Court: Superior Court of Pennsylvania
• Decided: August 11, 1992
• Docket: 2258
• Status: Published

Opinions

WIEAND, Judge:

Appellant, Walter Garnett, Jr., has appealed from an order denying his petition for post-conviction relief. In a brief filed by appointed counsel, it is argued that trial counsel was constitutionally ineffective for failing to seek the suppression of inculpatory statements made by appellant following an arrest which is alleged to have been illegal because it was made in violation of the Statewide Municipal Police Jurisdiction Act, 42 Pa.C.S. § 8953. Appellant has also filed a pro se supplemental brief in which he avers that his court appointed PCRA counsel was ineffective for failing to raise in this appeal additional instances of trial counsel’s ineffectiveness.

Garnett was tried by jury and, on October 3, 1975, vas found guilty of second degree murder, rape, involuntary deviate sexual intercourse and criminal conspiracy. Post-trial motions vere denied, and appellant vas sentenced to life in prison for murder and to concurrent terms of imprisonment for the remaining convictions. A direct appeal was filed in the Superior Court, which affirmed the judgment of sentence. See: Commonwealth v. Garnett, 267 Pa.Super. 41, 405 A.2d (1979). On February 6, 1989, appellant filed a pro se petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. Following the appointment of counsel, an evidentiary hearing was scheduled. At the time of the hearing, however, appellant decided to submit his petition to the PCRA court for decision without presenting evidence. On June 20, 1991, the PCRA court issued an order denying appellant’s petition for post-conviction relief. This appeal followed.

The factual scenario which led to appellant’s arrest and conviction was summarized in the post-trial opinion of the trial court in the following manner:

The body of Lauren Whitaker, a seven year old girl, was found October 24, 1974 in a vacant room at 710 West Third Street, Chester, Pennsylvania. The child had been sexually molested and murdered. The father of defendant, Walter Garnett, Jr., lived in the building where the child was found and the defendant was living with the victim and her mother. During the resulting criminal investigation, Gar-nett was questioned numerous times concerning the child’s death. He was not considered, at that time, to be a suspect.

Late in April, 1975, Garnett contacted the Chester Police Department on several occasions indicating that he had further information pertaining to the crimes. After some preliminary conversations with the defendant, he was picked up by the police, at his own request, early in the morning of April 29,1975 to discuss the matter fully. On that occasion, following a review of his constitutional rights, Garnett admitted knowledge of certain undisclosed circumstances surrounding the discovery of the victim’s body. Among other information, the defendant described his father’s admission that he had killed Lauren Whitaker. Being rather surprised at the disclosures, the police proposed that Garnett submit to a polygraph test in Philadelphia. The defendant voluntarily accompanied the police to Philadelphia where the test was performed. At the conclusion of the test and after his rights were again detailed, the defendant offered a statement admitting his presence at and participation with his father in the crimes against the victim, Lauren Whitaker. He was promptly arrested and returned to Chester.

On the defendant’s arrival in Chester, early in the evening of April 29, 1975, a further statement was obtained from him. At all times, he was well advised of his rights and offered food and drink. While Garnett appeared emotional at times, the evidence reflected that the statements were given without coercion and that he appeared almost relieved to discuss the incident. He was arraigned at approximately 8:30 p.m., April 29, 1975, before the District Justice.

Trial Court Opinion at pp. 1-2 (filed February 3, 1977).

Appellant argues that his arrest in Philadelphia by the Chester Police violated the provisions of the Statewide Municipal Police Jurisdiction Act and that any subsequent inculpatory remarks were the product of an illegal arrest. As such, his argument continues, trial counsel should have asserted the violation of the Act as a basis for suppressing his inculpatory statements. We disagree.

“Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant.” Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). The standard utilized to evaluate claims of ineffective assistance of counsel has been stated by the Pennsylvania Supreme Court as follows:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). Pursuant to the Post Conviction Relief Act, “a petitioner must not only establish ineffective assistance of counsel, petitioner must also establish that the ineffectiveness was of a type Vhich in the circumstances of the particular ease, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.’ ” Commonwealth v. Thomas, 396 Pa.Super. 92, 98, 578 A.2d 422, 425 (1990), quoting 42 Pa.C.S. § 9543(a)(2)(ii).

In pertinent part, the Statewide Municipal Police Jurisdiction Act provides as follows:

(a) General rule. — Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:

(1) Where the officer is acting pursuant to an order issued by a court of record or an order issued by a district magistrate whose magisterial district is located within the judicial district wherein the officer’s primary jurisdiction is situated, or where the officer is otherwise acting pursuant to the requirements of the Pennsylvania Rules of Criminal Procedure, except that the service of an arrest or search warrant shall require the consent of the chief law enforcement officer, or a person authorized by him to give consent, of the organized law enforcement agency which regularly provides primary police services in the municipality wherein the warrant is to be served.

(2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.

(3) Where the officer has been requested to aid or assist any local, State or Federal law enforcement officer or park police officer or otherwise has probable cause to believe that the other officer is in need of aid or assistance.

(4) Where the officer has obtained the prior consent of the chief law enforcement officer, or a person authorized by him to give consent, of the organized law enforcement agency which provides primary police services to a political subdivision which is beyond that officer’s primary jurisdiction to enter the other jurisdiction for the purpose of conducting official duties which arise from official matters within his primary jurisdiction.

(5) Where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a felony, misdemeanor, breach of the peace or other act which presents an immediate clear and present danger to persons or property.

(6) Where the officer views an offense which is a felony, or has probable cause to believe that an offense which is a felony has been committed, and makes a reasonable effort to identify himself as a police officer.

42 Pa.C.S. § 8953(a).

Instantly, the Chester Police had taken appellant to Philadelphia for the purpose of a polygraph test, which appellant had agreed to take. Under these circumstances, it is clear that the Chester Police were on official business when they transported appellant to Philadelphia. Moreover, when, upon completion of the polygraph test, appellant admitted his involvement in the murder of Lauren Whitaker, the Chester Police then had probable cause to place appellant under arrest. Police conduct, therefore, was lawful and in accordance with 42 Pa.C.S. § 8953(a)(5) and/or (a)(6). It follows that trial counsel was not ineffective for failing to aver an illegal arrest.

Moreover, even if a technical violation of the Municipal Police Jurisdiction Act had occurred, the suppression of appellant’s inculpatory statements “ ‘would be a remedy all out of proportion to the benefits gained to the end of obtaining justice while preserving individual liberties unimpaired.’ ” Commonwealth v. Saul, 346 Pa.Super. 155, 162, 499 A.2d 358, 361 (1985), quoting United States v. Searp, 586 F.2d 1117, 1123 (6th Cir.1978), cert. denied, 440 U.S. 921, 99 S.Ct. 1247, 59 L.Ed.2d 474 (1979). “[Suppression of evidence may or may not be the appropriate remedy for a violation of section 8953 of the Act, depending upon all of the circumstances of the case including the intrusiveness of the police conduct, the extent of deviation from the letter and spirit of the Act, and the prejudice to the accused.” Commonwealth v. O’Shea, 523 Pa. 384, 399, 567 A.2d 1023, 1030 (1989), cert. denied, — U.S. —, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990). See also: Commonwealth v. Fetsick, 392 Pa.Super. 264, 272-273, 572 A.2d 793, 797 (1990). Here, appellant had the benefit of Miranda warnings prior to making his inculpatory remarks, and both the trial court and Superior Court have already determined that the inculpatory statements were voluntarily given by appellant. Thus, even if appellant’s arrest were technically in violation of 42 Pa.C.S. § 8953, the circumstances of the instant case would not warrant the suppression of the inculpatory statements which he voluntarily gave to police.

There also is no basis in this case for finding PCRA counsel ineffective for failing to raise additional claims of ineffective assistance by trial counsel. In his pro se brief, appellant asserts that trial counsel was ineffective for (1) failing to challenge the systematic exclusion of blacks from appellant’s jury pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (2) failing to challenge the 13 hour delay between appellant’s arrest and arraignment; and (3) failing to request a change of venue due to extensive pre-trial publicity. These allegations are wholly lacking in merit and provide no basis for relief.¹

Appellant’s trial counsel was not ineffective for failing to assert that his jury was selected in a racially discriminatory manner in violation of the principles set forth in Batson v. Kentucky, supra. Appellant was convicted in 1975, more than ten years before the United States Supreme Court’s 1986 decision in Batson. Trial counsel will not be deemed ineffective for failing to predict future developments in the law. See: Commonwealth v. Triplett, 476 Pa. 83, 89-90, 381 A.2d 877, 881 (1977); Commonwealth v. Carter, 409 Pa.Super. 184, 190-192, 597 A2d 1156, 1159-1160 (1991). Moreover, the decision in Batson, it has been held, is not to be applied retroactively to cases on collateral review. See: Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986); Commonwealth v. Green, 365 Pa.Super. 142, 529 A.2d 13 (1987); Commonwealth v. Williams, 364 Pa.Super. 630, 528 A.2d 980 (1987). Therefore, Batson has no application in appellant’s appeal from the denial of his petition for post-conviction relief.

Whether an unreasonable delay had occurred between appellant’s arrest and arraignment was raised in appellant’s pre-trial suppression motion, his post-trial motions and in his direct appeal to the Superior Court. Both the trial court and Superior Court found his contention lacking in merit. This issue, therefore, has been finally litigated and cannot now be asserted as a post-conviction basis for challenging the effectiveness of trial counsel. See: 42 Pa.C.S. § 9544(a).

Finally, there is no basis in the record before this Court for holding trial counsel ineffective for failing to file a motion for change of venue prior to appellant’s trial. In support of this claim, appellant attached to his PCRA petition three newspaper articles discussing the circumstances of his crimes. However, two of these articles were written after appellant had been convicted. The third article did not extensively discuss the circumstances of the crimes and was neither sensational nor inflammatory in nature. Thus, there simply is no evidence in the record of any extensive or pervasive pretrial publicity which would have entitled appellant to a change of venue. See: Commonwealth v. Tedford, 523 Pa. 305, 323-325, 567 A.2d 610, 618-619 (1989). We conclude, therefore, that appellant failed to allege a valid claim that trial counsel was ineffective for failing to file a motion for a change of venue.

The order denying post-conviction relief is affirmed.

JOHNSON, J., files a dissenting opinion.

1 . Because it is clear from the record that the additional issues raised by appellant are so lacking in merit as to be frivolous, we have elected to decide these issues on the merits even though they have been argued only in appellant’s pro se brief. To remand for thfe appointment of new counsel to argue appellate counsel’s ineffectiveness in these respects or for further proceedings in the trial court would not only be fruitless but would constitute an inefficient use of judicial resources. Therefore, we have examined and rejected appellant’s frivolous pro se arguments simultaneously with our consideration of the arguments made by appellate counsel.