Com. v. Fowler
| Decision Date | 20 November 1997 |
| Citation | 703 A.2d 1027,550 Pa. 152 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. James M. FOWLER, Appellant. |
| Court | Pennsylvania Supreme Court |
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
James Michael Fowler (Fowler) appeals an Order of the Superior Court affirming the Order of the Court of Common Pleas of Lycoming County, which denied the petition for relief pursuant to the Post Conviction Relief Act 42 Pa.C.S. §§ 9541 et seq. We affirm the Order of the Superior Court.
In July 1990, Pennsylvania State Trooper Al Diaz was working with William Fern as a confidential informant. Fern had been purchasing controlled substances from Michael Parker, who was obtaining drugs from a third party. On July 11, 1990, Trooper Diaz followed Fern to Parker's residence, but Parker did not have any cocaine. Parker told Fern that he could get him marijuana elsewhere On October 31, 1990, Trooper Ronald Clark placed a tape-recording device under Parker's clothes and gave him prerecorded money to make a purchase of marijuana from Fowler. Parker then went to Fowler's house and purchased marijuana from him while tape-recording the transaction. The police subsequently arrested Fowler and charged him with controlled substance offenses stemming from the July 11 and October 30, 1990 transactions.
and they drove to Fowler's house. 1 Fern stayed in the car while Parker went in and purchased marijuana from Fowler. Parker was not cooperating with the Commonwealth on July 11, 1990, but shortly after that the police arrested him and he agreed to cooperate with the Commonwealth as a confidential informant
During a jury trial on August 21--23, 1991, the Commonwealth presented the testimony of Fern, Parker, Trooper Diaz and Trooper Clark. The Commonwealth also played the tape recording for the jury. The defense strategy was to portray Fowler as a marijuana user, rather than a dealer, and he denied ever selling marijuana to Parker. Although Fowler admitted that he discussed marijuana with Parker, he used portions of the tape-recorded conversation to corroborate his claim that he discussed giving Parker tobacco cigarettes, rather than marijuana. The jury found Fowler guilty of the following charges stemming from the October 31, 1990 transactions: possession with intent to deliver marijuana, 2 delivery of marijuana, 3 and possession of marijuana. 4 The jury found Fowler not guilty of all charges related to the July 11, 1990 sale of marijuana. The trial court denied post-verdict motions and sentenced Fowler to eight to twenty-three months incarceration. The Superior Court affirmed the judgment of sentence on December 17, 1992. Commonwealth v. Fowler, 428 Pa.Super. 614, 626 A.2d 644 (1992).
Fowler then retained new counsel, who filed a PCRA Petition in the Court of Common Pleas of Lycoming County on January 7, 1994. After oral argument, the PCRA court denied the PCRA petition without an evidentiary hearing. This Court granted Fowler's Petition for Allowance of Appeal limited to the issue of whether trial counsel was ineffective because he did not move to suppress evidence of the tape-recorded conversation based on the Superior Court's decision in Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987), in which the Superior Court held that the police must obtain a "warrant" before they intercept a conversation in a defendant's home.
The Legislature has set forth specific requirements a petitioner must meet to be eligible for relief pursuant to the PCRA. 42 Pa.C.S. § 9543. When a PCRA petitioner claims that a prior attorney was ineffective, he or she must prove that the conviction resulted from "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." 42 Pa.C.S. § 9543(a)(2)(ii). The law is well settled in Pennsylvania that trial counsel is presumed to have been effective. Commonwealth v. Roberts, 545 Pa. 460, 681 A.2d 1274 (1996); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). To defeat this presumption and warrant relief, a defendant must prove that the underlying claim is of arguable merit, counsel had no reasonable basis for the act or omission in question, and It is well settled that the adequacy of trial counsel's representation will be assessed based on the law as it existed at the time of the representation. Commonwealth v. Pizzo, 529 Pa. 155, 602 A.2d 823 (1992); Commonwealth v. Johnson, 516 Pa. 407, 532 A.2d 796 (1987); Commonwealth v. Brewer, 479 Pa. 558, 388 A.2d 1071 (1978). Counsel cannot be found ineffective for failing to foresee or predict changes in the law. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).
but for counsel's act or omission, the outcome of the proceedings would have been different. Commonwealth v. Appel, 547 Pa. 171, 689 A.2d 891 (1997). Counsel can never be deemed ineffective for failing to raise a claim that has no merit. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).
In Triplett, the defendant was arrested for murder and related charges, and he made an incriminating statement when the police questioned him. The defendant was sixteen years old at the time of his arrest, and both his parents and his attorney were not present when he waived his Miranda 5 rights. Defense counsel filed a motion to suppress the statement, which the trial court denied. After the commencement of trial, the parties reached a plea agreement and the court accepted the defendant's guilty plea after a thorough colloquy. The defendant did not file a direct appeal.
More than one year later, the defendant filed a petition for relief pursuant to the Post Conviction Hearing Act (PCHA). 6 Court-appointed counsel filed an amended PCHA petition in which he alleged that prior counsel was ineffective because he did not advise the defendant that his guilty plea would preclude him from challenging the admissibility of his confession on appeal. The PCHA court denied relief, and on appeal to this Court the defendant argued that his statement should have been suppressed based on changes in the law that occurred after he pled guilty. Specifically, he relied on Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), in which this Court adopted a per se rule that juveniles could not waive their Miranda rights without being afforded an opportunity to confer with a concerned adult.
This Court rejected the defendant's argument that his attorney was ineffective and held that counsel's action was reasonable at the time he pled guilty. This Court stated the following in Triplett:
The test for competency [of counsel] is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record, but whether counsel's assessment of appellant's case and his advice were reasonable. At the time appellant's motion to suppress was decided and at the time his plea of guilty was entered, appellant's youth was but one factor to be considered in determining whether the waiver of Miranda rights was knowing and his statement voluntary.
* * *
We cannot impose upon trial counsel the qualities of a seer and fault him for not foreseeing that this Court would finally adopt per se rules as to juvenile waivers of Miranda rights. For this reason, we examine counsel's stewardship under the standards as they existed at the time of his action; and counsel will not be deemed ineffective for failing to predict future developments in the law.
Id. at 89, 381 A.2d at 880--881 (citations omitted). We must therefore confine our inquiry to a determination of whether the particular course chosen by counsel had some reasonable basis designed to effectuate Fowler's interests under the law as it existed at the time of his trial on August 21--23, 1991. Triplett at 88, 381 A.2d at 880, citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).
To assess trial counsel's actions relative to the suppression of tape-recorded evidence, we must begin with the language of the relevant statute, Section 5704 of the § 5704. Exceptions to prohibition on interception and disclosure of communications
Wiretap Act, 18 Pa.C.S. § 5704, which provides as follows:
It shall not be unlawful under this chapter for:
....
(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:
(i) such officer or person is a party to the communication; or
(ii) one of the parties to the communication has given prior consent to such interception....
18 Pa.C.S. § 5704. Section 5704 does not distinguish between conversations recorded in a defendant's home, or elsewhere. Thus, the language of Section 5704 of the Wiretap Act does not require the police to obtain prior judicial approval to intercept and record a conversation in a defendant's home if one of the parties to that conversation gives his or her consent. This is consistent with well-settled law from the United States Supreme Court, which held that the United States Constitution does not require prior judicial approval of a one-party consensual wiretap in a defendant's home. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952).
Nevertheless, on December 29, 1987, the Superior Court decided Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536...
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