Commonwealth v. McBride

• Decision Date: 14 February 1990
• Citation: 570 A.2d 539,391 Pa.Super. 113
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Charles J. McBRIDE, Sr., Appellee. COMMONWEALTH of Pennsylvania v. Charles J. McBRIDE, Sr., Appellant.
• Court: Pennsylvania Superior Court

570 A.2d 539

391 Pa.Super. 113

COMMONWEALTH of Pennsylvania, Appellant, v. Charles J. McBRIDE, Sr., Appellee.

COMMONWEALTH of Pennsylvania v. Charles J. McBRIDE, Sr., Appellant.

Superior Court of Pennsylvania.

February 14, 1990

Submitted Oct. 13, 1989.

William M. Kern, Dist. Atty., Clarion for Com., appellant in No. 550 and appellee in No. 669.

David A. Whitney, Ridgway, for appellant in No. 669 and appellee in No. 550.

Before WIEAND, TAMILIA and HESTER, JJ.

WIEAND Judge:

In this criminal action, both the defendant and the Commonwealth have filed appeals. Charles J. McBride, Sr., who was found guilty by a jury of aggravated assault and recklessly endangering another person, ^[1] contends that his trial counsel was constitutionally ineffective. The Commonwealth argues that the trial court improperly refused to impose the mandatory minimum sentence required by 42 Pa.C.S. § 9712.

The charges resulted from an altercation between McBride, on the one hand, and Terry and Brian Shaffer, on the other. Terry Shaffer was an off-duty state trooper, and Brian Shaffer was his son. The Shaffers were standing on the berm of the highway which was adjacent to their home and were pouring oil on the berm to prevent the blowing of dust, when McBride drove past. Words were exchanged, and an argument developed between McBride and Brian Shaffer. Later, McBride returned to the Shaffer residence, confronted Terry Shaffer and pointed a gun at him while making threats. When McBride returned the gun to his car, he retrieved a baseball bat, which he swung at Shaffer. After McBride had departed, Shaffer reported the incident to the barracks of the State Police, and Corporal Haskins and Trooper Beight were dispatched to investigate. They went to McBride's residence and there, without a warrant, seized a handgun. McBride was not then placed under arrest, but the police, nevertheless took the gun with them when they departed.

After McBride had been found guilty of aggravated assault and recklessly endangering another person, post-trial motions, although filed late, were entertained by the trial court and rejected on their merits. McBride was then sentenced to serve a term of imprisonment for not less than eleven and one-half (11 1/2) months nor more than twenty-three (23) months. Thereafter, trial counsel was permitted to withdraw from the case, and new counsel was appointed to represent McBride and filed an appeal on his behalf. McBride argues that trial counsel was ineffective because he waived McBride's right to a preliminary hearing and failed to file timely post-trial motions. He also contends that trial counsel failed to file a timely motion to suppress the handgun which had been seized from McBride without a warrant.

In determining whether counsel's assistance has been constitutionally ineffective, we apply the following rule of law.

Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant. Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986), allo. denied, 514 Pa. 629, 522 A.2d 558 (1987). To meet that burden, appellant must demonstrate that 1) the issue underlying his claim of ineffectiveness is of arguable merit; 2) the course chosen by counsel had no reasonable basis designed to serve his interests; and 3) he suffered prejudice as a result of counsel's ineffectiveness. Commonwealth v Pierce, 515 Pa. 153, 158-160, 527 A.2d 973, 975-76 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378-79, 508 A.2d 1167, 1174-75 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5 & n. 8, 235 A.2d 349, 352-53 & n. 8 (1967).

Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988).

Appellant's contention that trial counsel was ineffective because he waived the preliminary hearing is unsupported by an averment of specific prejudice. He contends only that his defense was hampered because he had not previously heard the Commonwealth's witnesses testify. This is too general to entitle appellant to relief. "Counsel will not be found ineffective in a vacuum, and we will not consider claims of ineffectiveness without some showing of a factual predicate upon which counsel's assistance may be evaluated." Commonwealth v. Thomas, 372 Pa.Super. 349, 364, 539 A.2d 829, 837 (1988). See also: Commonwealth v. Silo, 509 Pa. 406, 411, 502 A.2d 173, 176 (1985); Commonwealth v. Pettus, 492 Pa. 558, 563-564, 424 A.2d 1332, 1335 (1981). In the absence of a more specific allegation regarding the prejudice suffered by appellant due to the waiver of a preliminary hearing, we find no basis upon which to find trial counsel ineffective with respect thereto.

There also is no basis on which to find trial counsel ineffective because of the untimely post-trial motions. The trial court considered the untimely post-trial motions on their merits and did not treat the issues raised as having been waived. Because the trial court chose to consider the issues raised in untimely motions, moreover, the issues were not waived for purposes of appeal. See: Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989); Commonwealth v. Hewett, 380 Pa.Super. 334, 337-338, 551 A.2d 1080, 1082 (1988). Thus, appellant has not been prejudiced in any way by the untimely filing of post-trial motions. See: Commonwealth v. Markovitch, 388 Pa.Super. 244, ----, 565 A.2d 468, 470 (1989).

There is arguable merit, however, in appellant's contention that trial counsel was ineffective because he failed to file a timely motion to suppress evidence. ^[2] As a general rule, an omnibus pre-trial motion, including a motion to suppress evidence, must be filed within thirty (30) days after arraignment. Pa.R.Crim.P. 307. In this case, a timely motion to suppress evidence was not filed; and when counsel sought leave of court to file a tardy motion, reciting "personal and professional matters" as a cause for the default, his motion was denied.

In support of appellant's contention that the handgun was subject to suppression, he avers that Beight and Haskins, without any warrant and without appellant's consent, entered his residence. In response to police questioning, appellant said that he owned a registered gun but that the gun pointed at Shaffer had been a water pistol. When the police insisted that they wanted to see appellant's "real" gun, he retrieved a gun from the second floor of his home. This gun, he avers, was grabbed from him and taken by Trooper Beight, who said that it would be used in the investigation. The removal of the gun, it is alleged, was contrary to appellant's protestations that it should not be removed. This gun, appellant contends, was illegally seized without a warrant and would have been subject to suppression if counsel had moved timely to suppress it.

"The Fourth Amendment to the Constitution of the United States 'protects people from unreasonable government intrusions into their legitimate expectations of privacy.' " Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978), quoting United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538, 546 (1977). See: Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1976). See also: Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1219 (1977); Commonwealth v. Williams, 380 Pa.Super. 227, 230, 551 A.2d 313, 314 (1988); Commonwealth v. Rispo, 338 Pa.Super. 225, 230, 487 A.2d 937, 939 (1985).

The Fourth Amendment safeguard against unreasonable searches and seizures is aimed at deterring, inter alia, physical entry into the home. U.S. v. U.S. District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Securing a warrant under the discernment of a detached and impartial issuing authority prevents the dangers of unfettered intrusions into such sacrosanct environments. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

Commonwealth v. Henkel, 306 Pa.Super. 346, 352, 452 A.2d 759, 761 (1982). See also: Commonwealth v. Rispo, supra. Therefore,

a search or seizure without a warrant is deemed unreasonable for constitutional purposes. Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022 [2031], 29 L.Ed.2d 564 (1971). The warrant requirement, however, is excused where exigent circumstances exist. Id. Exceptions arise where the need for prompt police action is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation, or because the officer must protect himself from danger to his person by checking for concealed weapons.

Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978) (footnote omitted). See also: Commonwealth v Chandler, 505 Pa. 113, 477 A.2d 851 (1984); Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979); Commonwealth v. Hinkson, 315 Pa.Super. 23, 461 A.2d 616 (1983). Other exceptions to the warrant requirement arise in situations where a warrantless search or seizure by police "does not amount to a significant invasion of a defendant's reasonable expectations of privacy." Commonwealth v. Holzer, supra. Such exceptions include consensual searches, seizure of abandoned property and plain view searches. See: Commonwealth v. Holzer, supra, 480 Pa. at 102 n. 6, 389 A.2d at 106 n. 6; Commonwealth v. Albrecht, 510 Pa. 603, 613, 511 A.2d 764, 769 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987) (consent); Commonwealth v. Pine, 370 Pa.Super. 410, 419, 536 A.2d 811, 816 (1988) (plain view); Commonwealth v. Vecchione, 327 Pa.Super. 548, 557, 476 A.2d 403, 408 (1984) (abandoned property). A warrantless search also may be made pursuant to a lawful arrest. See: ...