J-S33044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JASON ERIC KUHNS

                            Appellant                  No. 1909 WDA 2015


                 Appeal from the PCRA Order December 1, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0005268-2011


BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                             FILED JULY 29, 2016

        Appellant, Jason Eric Kuhns, appeals from the order entered in the

Allegheny County Court of Common Pleas, which dismissed his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinion, the PCRA court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

        Appellant raises the following issue for our review:

           DID THE [PCRA] COURT ERR IN DENYING APPELLANT’S
           PCRA   PETITION  SINCE    TRIAL  COUNSEL   WERE
           INEFFECTIVE FOR FAILING TO FILE A MOTION TO
           SUPPRESS APPELLANT’S 4/22/11 STATEMENT TO POLICE
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


___________________________

*Former Justice specially assigned to the Superior Court.
J-S33044-16


          SINCE   HE  WAS    NEVER   PROVIDED   MIRANDA[2]
          WARNINGS, HE ASKED FOR A LAWYER, AND HE WAS
          UNDER THE INFLUENCE OF DRUGS WHEN HE MADE THE
          STATEMENT; APPELLANT COMMUNICATED ALL OF THE
          AFOREMENTIONED TO TRIAL COUNSEL PRIOR TO AND
          DURING THE TRIAL, AND ALTHOUGH HIS STATEMENT TO
          POLICE WAS UNQUESTIONABLY THE MOST DAMAGING
          EVIDENCE AGAINST HIM THAT WAS PRESENTED TO THE
          JURY, COUNSEL REFUSED TO ATTEMPT TO SUPPRESS THE
          INVOLUNTARY STATEMENT?

(Appellant’s Brief at 3).

        Our standard of review of the denial of a PCRA petition is limited to

examining      whether      the   evidence      of   record     supports    the     court’s

determination      and     whether     its     decision    is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).                  We give no such deference,

however, to the court’s legal conclusions.            Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012). Further, a petitioner is not entitled to a

PCRA hearing as a matter of right; the PCRA court can decline to hold a

hearing if there is no genuine issue concerning any material fact, the

petitioner is not entitled to PCRA relief, and no purpose would be served by

any further proceedings.          Commonwealth v. Wah, 42 A.3d 335, 338
____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).



                                             -2-
J-S33044-16


(Pa.Super. 2012).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Anthony M.

Mariani, we conclude Appellant’s issue merits no relief.     The PCRA court’s

opinion fully discusses and properly disposes of the question presented.

(See PCRA Court Opinion, filed January 14, 2016, at 3-7) (finding: PCRA

court did not conduct hearing because facts necessary to resolve PCRA

petition were present in trial record; substantial evidence was presented at

trial to prove police properly read Appellant his Miranda warnings, that

Appellant did not request to speak with counsel, and that Appellant was not

under influence of narcotics during interview; Detective Sherwood testified

at trial that, prior to interviewing Appellant on April 22, 2011, Detective read

Appellant his Miranda rights direct from Pittsburgh Police Department’s

form, Detective personally observed that Appellant did not exhibit signs that

he was under influence of narcotics, Detective asked Appellant if he

understood his Miranda rights and Appellant answered in affirmative and

indicated his response on Miranda form, Detective informed Appellant that

he could have a lawyer present and Appellant stated he understood and his

response was noted on Miranda form, Detective asked Appellant if he

wished to waive Miranda rights and Appellant responded “yes,” which

Detective indicated on Miranda form, and Appellant signed his name at

bottom of Miranda form and initialed each page of form; Detective’s trial


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J-S33044-16


testimony indicates she properly mirandized Appellant prior to his interview

on April 22, 2011; prior to any questioning, Detective also informed

Appellant he had right not to answer any questions, that anything he said

could be used against him in court, and that he was entitled to attorney and

one would be appointed to represent Appellant if he could not afford

attorney; Appellant indicated he was aware of these rights and voluntarily

waived them; Appellant’s claim that he was under influence of narcotics at

time of April 22, 2011 interview is unsupported by evidence; trial counsel

was not ineffective because court would have properly denied suppression

motion based on Appellant’s meritless issues).      The record supports the

PCRA court’s decision; therefore, we have no reason to disturb it.

Accordingly, we affirm on the basis of the PCRA court’s opinion.

     Order affirmed.

     Judge Olson concurs in the result.

     Justice Fitzgerald files a dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2016




                                    -4-
                                                                         Circulated 05/26/2016 03:05 PM



IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                            CRIMINAL DIVISION


COMMONWEALTII OF PENNSYLVANIA )
                                                )
        VS.                                     )   cc NO. 2011-5268
                                                )
JASON ERIC KUHNS,                               )
                                                )
               Petitioner.                      )
                                                )

                                      OPINION

Mariani, J.

        This is an appeal of a denial of Petitioner, Jason Eric Kuhn's, petition pursuant to

the Post-Conviction Relief Act (hereinafter referred to as "PCRA"), 42 Pa.C.S. § 9541, et

seq. In this case, Petitioner was convicted of First Degree Murder, Burglary, Robbery,

Receiving Stolen Property and Conspiracy.            This Court imposed a term of life

imprisonment relative to the murder conviction and a consecutive aggregate term of not

less than 15 Y2 nor more than 31 years relative to the remaining convictions. He appealed

that sentence and the Superior Court affirmed his conviction and sentence on June 3,

2014 (1972 WDA 2012). Petitioner then filed a pro se PCRA on August 6, 2015.

Counsel was appointed and an Amended PCRA Petition was filed on October It, /2015.

The Commonwealth filed a response to the Amended PCRA Petition on November 3,

2015.   On December 1, 2015, this Court entered an order denying the PCRA petition. A

timely appeal was then filed.
          Petitioner's   only claim is that trial counsel rendered ineffective assistance of

counsel for failing to file a motion to suppress his statements to police on April 22, 2011

because he was not Mirandized, requested counsel and he was under the influence of

drugs at the time he made the statements.      As noted by the Superior Court and this Court

in its original opinion on direct appeal, during this interview, the defendant admitted

sneaking into the victim's residence through the garage door for the purpose of stealing

money or coins. He said that he was under the influence of drugs when he entered the

residence.     He surprised the victim and he struck the victim in the head with a tire iron.

The defendant could not recall how many times he struck the victim.            He admitted to

placing bags over the victim's head. He admitted taking the coins and trying to pawn

them at three different locations.




          It is well established that counsel is presumed effective and the petitioner bears the

burden of proving ineffectiveness. Commonwealth v. Cooper, 596 Pa. 119, 941 A.2d 655,

664 (Pa 2007). Under the federal constitution, to obtain relief on a claim of ineffective

assistance of counsel, a petitioner must rebut that presumption and demonstrate that

counsel's performance was deficient, and that such performance prejudiced him.

Strickland v. Washington, 466 U.S. 668, 687-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).      As set forth in Commonwealth v. Dermis, 17A.ad297, 301 (Pa.Super. 2011),




                   [i]n our Commonwealth, we have rearticulated the
                   Strickland Court's performance and prejudice inquiry as a
                   three-prong test. Specifically, a petitioner must show: (1)
                   the underlying claim is of arguable merit; (2) no reasonable
                   basis existed for counsel's action or inaction; and (3)
                   counsel's error caused prejudice such that there is a


                                                2
                 reasonable probability that the result of the proceeding
                 would     have  been    different  absent    such error.
                 Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213
                 (Pa. 2001).



          The standard remains the same for claims under Pennsylvania and federal law. A

claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any of these

prongs.   1iu,t1~"Pnt. .. Moreover, the credibility determinations of a trial court hearing a
PCRA petition are binding on higher courts where the record supports such credibility

assessments. Commonwealth v. R. Jolmson, 600 Pa. 329, 356-57, 966 A.2d 523, 539

(2009).




          The threshold inquiry in a claim of ineffective assistance of counsel is whether the

issue/argument/tactic which counsel has forgone and which forms the basis for the

assertion of ineffectiveness is of arguable merit. Commonwealth v. Ingram, 404 Pa.

Super. 560, 591 A.2d 734 (Pa.Super. 1991). Counsel cannot be considered ineffective for

failing to assert a meritless claim. Commonwealth v. Tanner. 600 A.2d 201 (Pa.Super.

1991).



          Because the facts necessary to resolve the instant PCRA petition were present in

the trial court record, this Court did not convene a hearing relative to the instant PCRA

petition. At trial, substantial evidence was presented establishing that the Petitioner was

Mirandized, that he did not request to speak with counsel and that he was not under the

influence of narcotics at the time of the interview.      Accordingly, in this Court's view,

trial counsel could not have rendered ineffective assistance of counsel because the issue


                                                3
raised by Petitioner would have been meritless as the suppression motion would have

been properly denied.




        Contrary to the allegations made by the Petitioner, Detective Patricia Sherwood

testified during the trial of this case that prior to interviewing the Petitioner on April 22,

2011, she read his Miranda rights to him directly from a Miranda form maintained by the

City of Pittsburgh Police Department.     She personally observed that Petitioner was clear-

headed and did not exhibit any signs that he was under the influence of narcotics. She

orally advised Petitioner:




                It is my duty to inform you     of the rights that you possess
                under the law. You cannot       be compelled to answer, and
                you have the right to refuse   to answer any questions asked
                of you during this interview   or while you're in custody. If
                you do answer such questions, the answers given by you
                will be used against you in a trial in a court of law at some
                later date.


After advising the petitioner of those rights, Detective Sherwood asked Petitioner if he

understood those rights. Petitioner indicated that he did understand his rights and his

response was noted on the Miranda form. She then informed Petitioner that



                You're entitled to talk to a lawyer, have a lawyer present
                before you decide whether or not to answer any questions,
                and while you're answering questions.

                If you don't have the money to hire a lawyer, you are
                entitled to have lawyer appointed without cost t consult
                with you and to have a lawyer present before you decide
                whether or not you will answer questions and while you're
                answering questions.



                                               4
               Do you understand this?


Petitioner responded "yeap" and Detective Sherwood wrote his response on the Miranda

form.   She further explained




               To continue, you can decide at any time before or during
               the questioning to exercise those rights by not answering
               any further questions or making any further statements, and
               if you exercise the right not to answer, the questioning will
               stop. Do you understand this?


The petitioner replied "yes". Detective Sherwood then asked the petitioner




               Knowing these rights, are you willing to waive your rights
               to answer questions without the presence of a lawyer?


The petitioner again replied "yes". Detective Sherwood wrote the petitioner's answers on

the Miranda form and Petitioner signed his name at the bottom of the Miranda form and

inserted his initials on each page of the form.




        Detective Sherwood's      testimony   clearly indicates that she Mirandized    the

petitioner prior to his incriminating interview.      In Miranda v. Arizona, 384 U.S. 436, 'f1I-

479 (1966), the United States Supreme Court explained:

                To summarize, we hold that when an individual is taken
                into custody or otherwise deprived of his freedom by the
                authorities in any significant way and is subjected to
                questioning, the privilege against self-incrimination is
                jeopardized. Procedural safeguards must be employed to
                protect the privilege, and unless other fully effective means
                are adopted to notify the person of his right of silence and



                                                  5
      to assure that the exercise of the right will be scrupulously
      honored, the following measures are required. He must be
      warned prior to any questioning that he has the right to
      remain silent, that anything he says can be used against him
      in a court of law, that he has the right to the presence of an
      attorney, and that if he cannot afford an attorney one will
      be appointed for him prior to any questioning if he so
       desires. Opportunity to exercise these rights must be
       afforded to him throughout the interrogation. After such
       warnings have been given, and such opportunity afforded
       him, the individual may knowingly and intelligently waive
       these rights and agree to answer questions or make a
       statement. But unless and until such warnings and waiver
       are demonstrated by the prosecution at trial, no evidence
       obtained as a result of interrogation can be used against
       him.




As set forth in Commonwealth v. Best, 789 A.2d 757, 762 (Pa. Super. 2002):

       [T]he protective provisions of Miranda prohibit the
       continued interrogation of an interviewee in police custody
       once he or she has invoked the right to remain silent and/or
       to consult with an attorney. Commonwealth v Rucci, 543
       Pa. 261, 670 A.2d 1129 (Pa.Super. 1996). "Interrogation"
       means police questioning or conduct calculated to,
       expected to, or likely to evoke an admission.
       Commonwealth v Brown, 551 Pa. 465, 711 A.2d 444
       (Pa.Super. 1998). Where an interviewee elects to give an
       inculpatory statement without police interrogation,
       however, the statement is "volunteered" and not subject to
       suppression, notwithstanding the prior invocation of rights
       under Miranda. Id; Commonwealth v. Bracey, 501 Pa. 356,
       461 A.2d 775 (Pa.Super. 1993); Commonwealth v. Abdul-
       Salaam, 544 Pa. 514, 678 A.2d 342 (Pa.Super. 1992).
       Interrogation occurs when the police should know that their
       words or actions are reasonably likely to elicit an
       incriminating response, and the circumstances must reflect
       a measure of compulsion above and beyond that inherent in
       custody itself. See Commonwealth v. Fisher, 564 Pa. 505,
       769 A.2d 1116. (Pa.Super. 2001)(emphasis supplied).




                                     6
         In this case, the record reveals that, Detective Sherwood warned Petitioner prior to

any questioning that he had the right to not answer any of her questions, i.e, remain silent.

She advised him that anything he said to her could be used against him in a court of law.

She informed him that he had the right to the services of an attorney, and that if he could

not afford an attorney, one would be appointed to represent him prior to any questioning.

Petitioner indicated that he was aware of these rights and he voluntarily waived him. His

claim that he was not informed of his Miranda rights and requested counsel is baseless.

His claim that he was under the influence of narcotics at the time of the interview is self-

serving and unsupported by any additional evidence.        This Court gives no credence to

Petitioner's self-serving assertion. Accordingly, had trial counsel filed a motion seeking

to suppress Petitioner's statements of April 22, 2014, such motion would have been

denied as meritless. Therefore, trial counsel did not render ineffective assistance of

counsel and the PCRA petition was properly denied.


                                               By the Court:



Date:   ~':JJ4-,       '20(°0




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