Commonwealth v. Parker

• Decision Date: 08 April 2021
• Docket Number: No. 395 EDA 2019,395 EDA 2019
• Citation: 249 A.3d 590
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Alton M. PARKER
• Court: Pennsylvania Superior Court

249 A.3d 590

COMMONWEALTH of Pennsylvania, Appellant

v.Alton M. PARKER

No. 395 EDA 2019

Superior Court of Pennsylvania.

Submitted December 21, 2020

Filed: April 8, 2021

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Samuel H. Ritterman, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Douglas N. Stern, Philadelphia, for appellee.

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.^*

OPINION BY BENDER, P.J.E.:

The Commonwealth appeals from the order granting Appellee's, Alton M. Parker, petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 - 9546. The Commonwealth contends that the PCRA court erred by granting relief based on the retroactive application of Birchfield v. North Dakota ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). After careful review, we vacate the order granting Appellee's petition and remand for further proceedings.

On May 7, 2011, Appellee drove his vehicle the wrong way down a street that had been closed off for a block party. PCRA Court Opinion ("PCO"), 8/10/20, at 5. Partygoers screamed at Appellee as he crashed through tables and chairs set out in the street. Id. "Appellee, driving at a rate of between twenty (20) and forty-five (45) mph, ignored them and threw a can of beer out of his car window, as he held a hatchet in his left hand." Id . He then struck two inflatable playhouses with children inside. Id. at 6. An off-duty police officer came upon the scene in his truck and, joined by the father of the girl whose birthday was being celebrated, pursued Appellee in the officer's truck. Id. at 7. They caught up to Appellee's vehicle and pulled up beside him in an attempt to get him to stop. Id. Appellee attempted to escape, clipping the vehicle in front of him, but then he immediately drove his vehicle into a wall at a speed of approximately 30 m.p.h. Id. The father jumped out of the off-duty officer's truck and attempted to remove Appellee from his vehicle. Id. Appellee swung his hatchet at the father, narrowly missing him. Id. As this occurred, the off-duty officer used his truck to block Appellee's vehicle from behind, preventing his attempt to reverse away from the wall. Id. The off-duty officer called 911, and then exited the truck, identified himself as a police officer, and drew his firearm on Appellee as Appellee continued to swing the hatchet wildly through the driver's side window. Id. The off-duty officer kept a safe distance until more police responded to the scene. Responding officers were ultimately able to arrest Appellee after he unsuccessfully tried to strike one of them with the hatchet. Id. at 7-8.

At the time of his arrest, "Appellee was unable to walk under his own power and was completely incoherent. His eyes were bloodshot and his appearance generally was disheveled; his boots were mismatched. He [also] smelled strongly of PCP." Id. at 8 (citations omitted). Several victims escaped Appellee's rampage with numerous injuries that were not life-threatening. Id. at 9. However, one nine-year-old child

was admitted to the hospital with a right epidural hematoma

, a liver laceration, a right shoulder fracture, broken fingers, [a] fractured pelvis, a spine injury, and multiple broken ribs. He was referred for plastic surgery on his scalp, face, and knee. He could not bear weight on his legs initially and spent ten days in a rehab center. He was in St. Christopher's Hospital for a month before being moved to a rehabilitation center and wore a neck brace for three months. He underwent an extensive rehabilitation period: he could not walk for a month and remained in a wheelchair, then required crutches, and finally a walking stick. After his release, he limped for six months.

Id. (citations omitted).

Appellee was taken to the hospital for a blood draw following his arrest, and the toxicology report ultimately identified the presence of PCP in his system. Id. at 8-9. "The amount of PCP in Appellee's blood was consistent with recent, active use in a dosage consistent with and capable of producing adverse psychoactive effects." Id. at 9. At trial, Appellee testified that he suffered from repeated heart attacks

and strokes due to a structural arterial disease. Id. at 10. He claimed that his condition caused him to have a mini-stroke on the day of the incident, causing him to have little recollection of what had occurred. Id. Appellee admitted to consuming PCP, but asserted that he had only done so three days before the incident. Id.

A non-jury trial began on May 7, 2013, after which the trial court found Appellee guilty of aggravated assault, simple assault, possessing instruments of crime, recklessly endangering another person, criminal mischief, aggravated assault by vehicle while driving under the influence, accidents involving death or personal injury, and driving under the influence—controlled substances.¹ On August 20, 2013, the court sentenced Appellee to an aggregate term of 18-36 years’ incarceration. After having his appeal dismissed due to appellate counsel's failure to file a brief, Appellee filed a petition seeking reinstatement of his direct appeal rights nunc pro tunc . The lower court granted that petition on July 9, 2014. This Court ultimately affirmed Appellee's judgment of sentence on September 9, 2015, and he did not seek further review with our Supreme Court. Commonwealth v. Parker , 133 A.3d 65 (Pa. Super. 2015).

Appellee filed pro se PCRA petitions on August 10, 2015,² and December 22, 2015, and the PCRA court appointed counsel to represent him. PCRA counsel filed an amended petition on Appellee's behalf on November 14, 2016, and a supplement thereto on June 28, 2017. On January 30, 2019, the PCRA court granted the petition.³

The Commonwealth filed a timely, court-ordered Pa.R.A.P. 1925(b) statement, and the PCRA court issued its Rule 1925(a) opinion on August 10, 2020. The Commonwealth now presents the following questions for our review:

I. Did the lower court err by granting post-conviction relief by erroneously applying the Birchfield decision retroactively on collateral review?

II. Did [Appellee] fail to demonstrate the ineffective assistance of counsel?

III. Is it in the interest of judicial economy to deny PCRA relief without remanding?

Commonwealth's Brief at 4.

Our standard of review of a trial court order granting or denying relief under the PCRA calls upon us to determine whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Barndt , 74 A.3d 185, 191–92 (Pa. Super. 2013) (cleaned up).

As to the Commonwealth's first issue, both parties and the PCRA court now agree that the court erred by granting relief pursuant to Birchfield . "[T]he Birchfield Court held, inter alia , that a state may not impose criminal penalties on the refusal to submit to a warrantless blood test." Commonwealth v. Olson , 218 A.3d 863, 866 (Pa. 2019) (cleaned up), cert. denied , Olson v. Pennsylvania , ––– U.S. ––––, 141 S.Ct. 87, 207 L.Ed.2d 171 (2020). In Olson , our Supreme Court held that " Birchfield does not apply retroactively on post-conviction collateral review." Olson , 218 A.3d at 875. Birchfield was decided on June 23, 2016, after Appellee had initiated PCRA proceedings below. Our Supreme Court decided Olson on October 31, 2019, after the PCRA court had granted Appellee's petition.

In its Rule 1925(a) opinion, the court acknowledged that, as a result of Olson , it erred by granting Appellee's petition based on the retroactive application of Birchfield on collateral review of Appellee's judgment of sentence. See PCO at 12. As a result, the PCRA court requested that we remand for further proceedings. Id. at 13. Appellee concedes this point, and also requests a remand for further proceedings. See Appellee's Brief at 14, 17-18. As the parties and the PCRA court are in agreement, and because they are correct that Olson precludes application of Birchfield retroactively on collateral review, we conclude that the PCRA court erred by granting a new trial based on Birchfield .

Next, the Commonwealth argues that Appellee's Birchfield -related ineffective assistance of counsel ("IAC") claims are meritless. The Commonwealth states:

[Appellee]’s claim that trial and direct appeal counsel were ineffective for not raising a claim similar to that in Birchfield was also not a basis for granting relief.⁸ First, [Appellee] did not develop the claim, as required. Second, it is axiomatic that counsel cannot be found ineffective for not raising a legal theory that, at the time of trial and direct appeal, was not accepted by the Pennsylvania courts. Third, [Appellee] could not demonstrate prejudice because he could not demonstrate that suppression of the blood evidence would have created a reasonable probability of a different verdict.

⁸ It is not clear from the PCRA court's opinion whether it granted relief on this basis, as it has never articulated its reasoning, other than to imply that it applied Birchfield retroactively.

Commonwealth's Brief at 19.

As noted by the Commonwealth, the PCRA court did not address this matter in its Rule 1925(a) opinion. However, this Court may affirm a PCRA court's order on any legal basis. See Commonwealth v. Rouse , 191 A.3d 1, 7 (Pa. Super. 2018) ("To the extent our legal reasoning differs from the [lower] court's, we note that as an appellate court, we may affirm on any legal basis supported by the certified record."). Consequently, we will address this potential alternative basis to affirm the PCRA court's order out of an abundance of caution.

[I]n order to obtain relief based on [an IAC] claim, a petitioner must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) petitioner suffered

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