Commonwealth v. Hawkins

• Citation: 257 A.3d 1
• Decision Date: 10 December 2020
• Docket Number: No. 1524 WDA 2019,1524 WDA 2019
• Parties: COMMONWEALTH of Pennsylvania v. James HAWKINS, Appellant
• Court: Pennsylvania Superior Court

257 A.3d 1

COMMONWEALTH of Pennsylvania

v.James HAWKINS, Appellant

No. 1524 WDA 2019

Superior Court of Pennsylvania.

Submitted August 24, 2020

Filed December 10, 2020

Reargument Denied February 11, 2021

Thomas N. Farrell, Pittsburgh, for appellant.

Daniel Albert Vernacchio, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

OPINION BY OLSON, J.:

Appellant, James Hawkins, appeals from the order entered on September 16, 2019, which denied his petition filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541 - 9546. We affirm.

In this Court's October 31, 2018 memorandum, we summarized the underlying facts and procedural posture of this case:

On June 11, 2015, [City of Pittsburgh Police Officer Paul Abel] received a complaint from a female[, named M.H.,] that she was punched in the face by Appellant. [Officer Abel] observed that [M.H.] had a black eye. [M.H.] was the former intimate partner of Appellant. [Officer Abel] responded to [Appellant's residence at 1623 Federal Street, in the City of Pittsburgh,] that evening but nobody appeared to be home at the residence. [1623 Federal Street is a multi-unit apartment building, with one main entry door; Appellant resided in the building's third-floor apartment].

[Officer Abel did not obtain either an arrest warrant for Appellant or a search warrant for Appellant's apartment. Nevertheless, Officer Abel and other officers] responded to [Appellant's] residence the following day. [The] officers knocked on the [front] door [to the apartment complex] and nobody immediately responded but the officers could hear several people moving around inside the residence. [The] officers observed a trash bag on the sidewalk outside the building. Inside the bag was a Verizon telephone bill addressed to Appellant and what appeared to be plastic baggy "diapers," which were described as the remaining portion of plastic baggies after the corners are cut off to be used to package drugs.

Shortly thereafter, Melissa Dono, Appellant's roommate, opened the door to the residence. Ms. Dono confirmed that Appellant was inside the residence and permitted the officers to enter the residence.

In the entryway of the residence, officers observed an empty stamp bag of heroin on the floor. Appellant was placed under arrest. He was asked to consent to a search of the residence but refused consent. Molly Alexander, who identified herself as Appellant's girlfriend, then advised officers that she was diabetic and needed her medicine. She advised that her medicine was inside her purse, which was located inside a larger bag in Appellant's bedroom. The purse was located in Appellant's bedroom next to the bag Ms. Alexander had described. Sticking out of the purse was another bag with the name, "Crown Royal" on it, and which contained bricks of heroin and baggies of crack cocaine. Marijuana was recovered from inside the purse. Ms. Alexander conceded that the marijuana was hers but she denied knowledge of the other drugs inside the "Crown Royal" bag found in her purse. Both Ms. Alexander and Appellant were arrested

On February 2, 2016, the day of trial, Appellant's counsel attempted to present a motion to suppress evidence. The Commonwealth objected to the late filing, and the trial court denied the motion without a hearing because it was not timely filed. See Pa.R.Crim.P. 579 (requiring generally that pre-trial motions shall be filed and served within 30 days after arraignment). After a non-jury trial, Appellant was convicted of one count of possession of heroin, one count of possession of cocaine, and one count of possession with intent to deliver heroin [("PWID").¹ ] On April 21, 2016, the trial court [sentenced Appellant to serve] two and one-half years to five years [in prison,] followed by five years of probation[,] for the [PWID] conviction, and imposed no further penalty for the remaining crimes[.]

Commonwealth v. Hawkins , 200 A.3d 620 (Pa. Super. 2018) (unpublished memorandum) at 1-3 (quotations, citations, corrections, and some capitalization omitted).

On January 23, 2017, Appellant filed a timely, pro se PCRA petition. The PCRA court appointed counsel to represent Appellant and counsel filed an amended petition on Appellant's behalf. Within the amended petition, Appellant claimed that his trial counsel was ineffective for failing to file a motion to suppress the evidence in his case. Specifically, Appellant claimed, the police officers violated his rights under the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution because they entered his home and placed him under arrest without obtaining a warrant that authorized either Appellant's arrest or a search of his residence. See Appellant's Amended PCRA Petition, 8/14/17, at 3.

On October 24, 2017, the PCRA court notified Appellant that it intended to dismiss his petition in 20 days, without holding a hearing. PCRA Court Order, 10/24/17, at 1; see also Pa.R.Crim.P. 907(1). The PCRA court finally dismissed Appellant's petition on December 6, 2017. PCRA Court Order, 12/6/17, at 1. Within the PCRA court's later-filed opinion, the court explained that the police lawfully arrested Appellant without a warrant under 18 Pa.C.S.A. § 2711(a). This section declares:

§ 2711. Probable cause arrests in domestic violence cases

(a) General rule.-- A police officer shall have the same right of arrest without a warrant as in a felony whenever he has probable cause to believe the defendant has violated section ... 2701 (relating to simple assault) ... against a family or household member although the offense did not take place in the presence of the police officer. A police officer may not arrest a person pursuant to this section without first observing recent physical injury to the victim or other corroborative evidence. For the purposes of this subsection, the term "family or household member" has the meaning given that term in 23 Pa.C.S. § 6102 (relating to definitions).

18 Pa.C.S.A. § 2711(a).²

Appellant filed a timely notice of appeal and claimed that the PCRA court erred when it dismissed his petition without holding a hearing. We agreed and held that Appellant was entitled to a hearing on his petition because, first, the record was vague as to whether Officer Abel personally observed the complainant, M.H., with a black eye. Commonwealth v. Hawkins , 200 A.3d 620 (Pa. Super. 2018) (unpublished memorandum) at 6. Second, we held, "there is an issue of material fact as to whether [Melissa] Dono resided in the apartment, which bears upon her authority to permit entry. Moreover, there is an issue of material fact as to whether [Ms.] Dono ever consented to the officers' entry into the apartment." Id. at 8. Thus, since there existed genuine issues of material fact, we held that the PCRA court erred when it dismissed Appellant's petition without holding a hearing and we remanded the case so that the PCRA court could conduct the requisite evidentiary hearing. See id. at 8-9.

Following remand, the PCRA court held a hearing on Appellant's petition. During the hearing, Appellant presented the testimony of: himself; his co-defendant, Molly Alexander; City of Pittsburgh Police Officer Paul Abel; and, his trial counsel, Joseph Paletta, Esquire (hereinafter "Attorney Paletta"). Crucially, however, Appellant did not present Melissa Dono as a witness during the hearing.

At the time of the events, Appellant resided in an apartment, on the third floor of a three-floor apartment building. See N.T. PCRA Hearing, 6/10/19, at 16. Molly Alexander testified that other residents lived in the apartment building; however, she testified, no one else lived in the third-floor apartment but Appellant. Id. at 16-17.

Ms. Alexander testified that, on the day in question, she was visiting Appellant and, "[a]t some point ... there were police officers banging on the door and some people went down and let them in." Id. She testified that Officer Abel and three or more officers entered the apartment; afterwards, she was searched and then moved to another room. Id. at 18-19.

Ms. Alexander testified that she is diabetic and thus asked the officers if she could get her insulin. She testified: "[the officers] said they would get it. So I allowed them to go into my purse that was in the other room. ... They brought my purse to me and said that they found ... a purple bag inside with drugs in it." Id. at 21-22. Ms. Alexander was then arrested.

Officer Paul Abel next testified at the PCRA hearing. As Officer Abel testified, at approximately 5:00 p.m. on June 12, 2015, he and "more than four" other officers arrived at the multi-unit apartment building where Appellant resided, intending to arrest Appellant for assaulting his former intimate partner, M.H. Id. at 34-35. Officer Abel testified that Appellant resided on the building's third floor and that all relevant events occurred during the daylight. Id. at 35 and 38.

As Officer Abel testified, he "pounded on the [main apartment-complex door] for [approximately] ten minutes" and, during this time, he announced "Police. Open up." "a couple of times." Id. at 36. He testified that he did this because "[i]t [was] an apartment building. It was more than one apartment." Id. Eventually, Melissa Dono opened the main apartment complex door. Officer Abel testified:

Melissa Dono opens the door. I asked who she was. She identified herself. We asked her where she lived. She stated up on the third floor. We asked who she lived with. She stated [Appellant]. We asked if ... he was there right then. She said, "Yes. He is upstairs. I'll go get him." We followed her up the stairs. He was at the door of his own apartment[.]

Id. at 38.

Officer Abel also offered a slightly different version of the events. He testified that, when Ms. Dono opened the front door:

She said, "Come in. He's upstairs." And we followed her upstairs.

...

[S]he led us up to the [third-floor apartment] do

...