Commonwealth v. Bantum
| Decision Date | 24 October 2022 |
| Docket Number | 446 WDA 2022 |
| Citation | 287 A.3d 885 (Table) |
| Parties | COMMONWEALTH of Pennsylvania v. Brian Kurt BANTUM, Appellant |
| Court | Pennsylvania Superior Court |
Brian Kurt Bantum (Bantum) appeals from the order of the Court of Common Pleas of Blair County (PCRA court) dismissing his first timely petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546. Bantum contends that trial counsel was ineffective for failing to file a pretrial motion to suppress evidence and for declining to call three witnesses to testify in his defense at his jury trial. Additionally, Bantum's court-appointed counsel has filed a motion for leave to withdraw from representation and an Anders brief.1 We grant counsel's motion to withdraw and affirm the PCRA court's order denying Bantum's PCRA petition.
The relevant facts and procedural history of this case are as follows. On October 5, 2016, at about 8:00 p.m., Kenton Knepp (Knepp) was drinking alcohol at his apartment with two friends, Jeffery Cruthers (Cruthers) and Gary O'Shell (O'Shell). Bantum was Knepp's next-door neighbor and as he walked past Knepp's apartment, Knepp invited him inside. However, because Bantum was visibly intoxicated to the extent that he was stumbling around the residence, Knepp asked him to leave. Bantum resisted and swung his fist at Cruthers. Knepp and his friends were eventually able to push Bantum outside of the apartment and onto the porch. In doing so, Bantum and Knepp fell to the ground and the firearm Knepp was carrying slipped out of his holster. Knepp caught the firearm and placed it next to him, but as he lifted his hand off of it to stand up, Bantum reached for the firearm and put his hand on it. Knepp immediately backed into his apartment, closed and locked the door and told Cruthers and O'Shell that Bantum took the firearm. They called the police and when the responding officers arrived at the scene minutes later, Bantum and the firearm were gone.
Police spoke to Bantum's girlfriend at a residence she shared with Bantum, and she indicated that she did not know his whereabouts. She consented to a search of their apartment and the officers found Bantum outside in the backyard sitting in a chair next to a grill. Bantum appeared highly intoxicated and angry, and he was detained after he refused to disclose the location of the firearm. The officers located the firearm under a tarp covering the grill.
Bantum was represented by Mark S. Zearfaus, Esq. at his June 8, 2017 jury trial. The parties stipulated that Bantum had a prior drug conviction that prohibited him from legally possessing a firearm. Bantum testified in his defense that he did not take Knepp's firearm or place it on his grill. The jury found Bantum guilty of person not to possess a firearm, theft by unlawful taking and disorderly conduct, and the court found him guilty of related summary offenses. On August 31, 2017, the trial court sentenced Bantum to an aggregate term of 5 to 10 years’ incarceration. The trial court denied Bantum's post-sentence motion and Bantum timely appealed. This Court affirmed Bantum's judgment of sentence on July 14, 2020.2
Bantum filed the instant timely pro se PCRA petition on August 12, 2020. Appointed counsel filed an amended petition contending that trial counsel was ineffective for failing to file a motion to suppress evidence and for declining to call three witnesses to testify in Bantum's defense at trial.3 The PCRA court held evidentiary hearings on the petition in July 2021 and January 2022.
Bantum and his neighbor at the time of the incident, Susan Nadolsky (Nadolsky), testified at the July 30, 2021 hearing. Bantum stated his position that Attorney Zearfaus was ineffective for failing to call three witnesses in his defense at trial: Nadolsky, Terry Prowl (Prowl) and Angela Brackeow (Brackeow). PCRA counsel advised the court that although these three witnesses had initially agreed to appear without a subpoena, Prowl changed her mind and Brackeow could not be located. Bantum averred that he was willing to proceed with the hearing despite their absence.
Bantum testified that Attorney Zearfaus should have called these witnesses at trial because they (N.T. PCRA, 6/30/21, at 4). Bantum maintained that he had made Attorney Zearfaus aware of these witnesses, but that Attorney Zearfaus told him "there was no need for their testimony." (Id. ).
Bantum also testified that Attorney Zearfaus should have filed a motion to suppress evidence challenging the warrantless search of his residence. Although he had asked Attorney Zearfaus to file this motion on his behalf, Attorney Zearfaus refused "because there was no merit." (Id. at 5).
On cross-examination, Bantum elaborated that the three uncalled witnesses "can attest to [Knepp's] character at the time of the incident that happened prior to that, he always pulls his gun out, a heavy drug user, a heavy drinker, so those witnesses can attest to his behavior during the incident in question at the time of the incident." (Id. at 8). Bantum reiterated that Attorney Zearfaus chose not to call the witnesses even though Prowl and Brackeow were present in court with him at trial.
Nadolsky testified that Bantum was her neighbor and that she dated Knepp (Id. at 11). Nadolsky stated that Knepp used racial slurs and recounted an incident wherein he passed out intoxicated in the driver's seat of his truck.
Nadolsky indicated that she would have been able to testify at Bantum's trial but that she was never contacted by Attorney Zearfaus or any other attorney to appear at the proceedings, and she did not know about the trial at that time. The PCRA court colloquied Nadolsky as to her personal knowledge of the October 5, 2016 incident and she stated: "honestly, I don't remember anything from 2016, but they were out there every day." (Id. at 15). Nadolsky indicated that she did not trust Knepp or his friends and speculated that the gun had been planted at Bantum's residence. Nadolsky also admitted that she had no knowledge as to whether Bantum took Knepp's firearm that day.
The PCRA court noted Attorney Zearfaus’ absence from the hearing due to a family emergency and the need for a second hearing at which both parties could present additional testimony. At the January 25, 2022 hearing, Attorney Zearfaus testified that he did not file pretrial motions in this case and did not remember Bantum requesting him to do so. Attorney Zearfaus recalled speaking to Bantum's girlfriend at the time of trial and determining that her testimony would not be helpful to the defense. He further testified that the fact that Bantum's girlfriend had consented to the search of their shared apartment would have played a role in his decision concerning pretrial motions.
On cross-examination, Attorney Zearfaus testified that he did not recognize the names of any of the three uncalled witnesses, and when asked specifically about Nadolsky, Attorney Zearfaus testified that her name was not familiar to him at all. Attorney Zearfaus indicated that there was no reason to file a motion to suppress because police were given consent to search the residence by Bantum's girlfriend, with whom Bantum then resided.
The PCRA court entered an order denying Bantum's petition on April 1, 2022. Bantum timely appealed and he and the PCRA court complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b). In rendering its decision, the PCRA court found Attorney Zearfaus’ testimony credible in all respects and Bantum's testimony not credible. (See PCRA Court Opinion, 4/01/22 at 7, 11).5
We begin by addressing counsel's application to withdraw. We have explained:
Our review of the record confirms that counsel has substantially complied with the procedural requirements to withdraw by filing a petition to withdraw, accompanying supporting brief, and copy of the letter he sent to Bantum enclosing the filings and advising him of his rights on appeal. See id. at 141 n.6. Accordingly, we will proceed with our independent review of the issues presented to determine if counsel correctly concluded that the issues lack merit.
Bantum raises two claims of ineffective assistance of trial counsel on appeal.6 "To prove counsel ineffective, the petitioner must show that: (1) his...
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