J-S68009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JAMES H. SHRIEVES                       :
                                         :
                   Appellant             :   No. 576 MDA 2017

                Appeal from the PCRA Order March 21, 2017
   In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0003090-2013


BEFORE:    LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                      FILED JANUARY 03, 2018

     James H. Shrieves appeals from the order, entered in the Court of

Common Pleas of Lancaster County, dismissing his petition for relief filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. After careful review, we affirm.

     On January 1, 2013, at approximately 5:15 a.m., Lancaster County

Police Officer Thomas Cole responded to an emergency call to assist EMTs

providing medical care to Shrieves’ fiancée, Anika Munoz-Brown.      Munoz-

Brown was suffering from cardiac arrest. Upon arrival, Officer Cole went to

the second floor of Shrieves’ residence, where Munoz-Brown was receiving

medical attention. While EMTs Alyta Stum and Luke Dunn administered CPR

to Munoz-Brown, Officer Cole collected Munoz-Brown’s demographic, medical

and other pertinent information from Shrieves. The EMTs informed Shrieves

that further efforts to resuscitate Munoz-Brown were unlikely to succeed, but

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Shrieves implored the EMTs, in the presence of Officer Cole, to do everything

they could.

      Eventually, medical personnel determined that the EMTs would

transport Munoz-Brown to Lancaster General Hospital.          The EMTs asked

Shrieves to gather Munoz-Brown’s medication for treatment purposes.

Shrieves went into the second floor bedroom, opened a cabinet and began

gathering Munoz-Brown’s pill bottles; Officer Cole was standing approximately

two to three feet from Shrieves as he collected Munoz-Brown’s medication.

Officer Cole indicated that Shrieves needed to hurry if he wanted to travel in

the ambulance with Munoz-Brown because the EMTs would not wait for him.

Shrieves then moved from the cabinet to a small nightstand where he

retrieved a large plastic bag holding multiple small baggies containing white

substances.   Officer Cole inquired as to what was in the bag, after which

Shrieves dropped the bag into a purse in front of him and picked up a set of

keys. Shrieves told Officer Cole he had only the keys in his hand.

      Officer Cole looked into the purse, which was open, and saw the large

plastic bag lying on top of the contents of the purse. Officer Cole, believing

the smaller baggies contained narcotics, recovered the bag, verified it

contained crack cocaine, and searched Shrieves for additional contraband.

Officer Cole did not find additional contraband on Shrieves’ person and, given

the circumstances, he permitted Shrieves to go to the hospital with his fiancée.

Police secured the area and later obtained Shrieves’ consent to search the




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residence.      During the search, a firearm was located in a drawer in the

bedroom.

          On September 10, 2013, Shrives filed a motion to suppress the physical

evidence seized from his home. Following a hearing, the trial court denied

Shrieves’ motion to suppress by opinion and order dated February 12, 2014.

After the trial court, sua sponte, severed the person not to possess firearms

count from the information, Shrieves proceeded to a jury trial on that

individual charge. On November 13, 2014, the jury found Shrieves guilty of

person not to possess a firearm. On January 21, 2015, the trial court found

Shrieves guilty of possession with intent to deliver (“PWID”) cocaine and

possession of drug paraphernalia. On the same day, the trial court sentenced

Shrieves to four to eight years’ imprisonment for persons not to possess a

firearm and eighteen to thirty-six months’ imprisonment for PWID, which the

trial court imposed concurrently. Shrieves filed a direct appeal, which this

Court rejected on December 16, 2015.         Commonwealth v. Shrieves, 346

MDA 2015 (Pa. Super. filed December 16, 2015) (unpublished memorandum).

          On January 11, 2016, Shrieves filed a timely pro se motion for post-

conviction collateral relief pursuant to the PCRA. On February 4, 2016, the

trial court appointed Vincent J. Quinn, Esquire, as Shrieves’ PCRA counsel. On

May 18, 2016, Shrieves filed an amended petition for post-conviction collateral

relief.     Following an evidentiary hearing, the trial court denied Shrieves’

amended petition by order dated March 21, 2017.           On March 29, 2017,




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Shrieves filed a timely notice of appeal. Both Shrieves and the trial court have

complied with Pa.R.A.P. 1925. On appeal, Shrieves raises the following issue:

      Whether the lower court erred in denying [Shrieves’] amended
      PCRA [petition] when trial counsel was ineffective by failing to call
      [Stum] and [Dunn] as witnesses at the suppression hearing when
      their testimony would have established that the emergency aid
      exception to the warrant requirement was not applicable and that
      all evidence seized from [Shrieves,] including drugs and a
      firearm[,] was obtained in violation of [Shrieves’] rights under the
      Fourth Amendment to the United States Constitution.

Brief of Appellant, at 4.

      Instantly, Shrieves avers that EMTs Stum and Dunn’s testimony would

controvert the applicability of the emergency aid exception and his

suppression counsel’s failure to call them as witnesses prejudiced his defense.

       “It is well-established that counsel is presumed effective, and to rebut

that presumption, the PCRA petitioner must demonstrate that counsel’s

performance was deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citing Strickland

v. Washington, 466 U.S. 688, 687-91 (1984)).                To prevail on an

ineffectiveness claim, the petitioner has the burden to prove that “(1) the

underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel’s deficient performance.” Commonwealth v. Sneed, 45

A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce, 786 A.2d 203,

213 (2001)). “A petitioner establishes prejudice when he demonstrates there


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is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”       Commonwealth v.

Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (quoting Strickland, 466 U.S. at

694). The failure to satisfy any one of the three prongs will cause the entire

claim to fail. Sneed, 45 A3d at 1106. Finally, because a PCRA petitioner

must establish all three prongs to be entitled to relief, we are not required to

analyze the elements of an ineffectiveness claim in any specific order; thus, if

a claim fails under any required element, we may dismiss the claim on that

basis. Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015).

      To establish that counsel was ineffective for failure to call a witness,

appellant must demonstrate that:

      (1) [t]he witness existed; (2) the witness was available to testify
      for the defense; (3) counsel knew of, or should have known of,
      the existence of the witness; (4) the witness was willing to testify
      for the defense; (5) the absence of the testimony of the
      witness was so prejudicial as to have denied the defendant
      a fair trial. Failure to call a witness is not per se ineffective
      assistance of counsel, for such a decision implicates matter of trial
      strategy.

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007) (emphasis

added).    It is appellant’s burden to demonstrate that counsel had no

reasonable basis for declining to call a potential witness. Id.

      Further, a post-conviction claim of ineffective assistance of counsel must

raise a distinct legal ground, rather than an alternative theory in support of

the same underlying issue that defendant raised on direct appeal, and thus,

ineffectiveness claims are distinct from previously litigated issues and may be


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brought up in post-conviction proceedings. See Commonwealth v. Collins,

888 A.2d 564, 570 (Pa. 2005). Accordingly, a petition for relief under the

PCRA cannot obtain PCRA review of previously litigated claims decided

adversely to him in his direct appeal simply by presenting those claims again

in a PCRA petition and setting forth new theories of relief in support thereof.

42 Pa.C.S.A. § 9544(a)(2); Commonwealth v. Hutchins, 760 A.2d 50, 55

(Pa. Super. 2000).

       Shrieves claims that trial counsel, Jennifer Santiago, Esquire, failed to

call EMTs Stum and Dunn as witnesses at his suppression hearing, and thus,

prejudiced his defense.       Specifically, Shrieves asserts that EMTs Stum and

Dunn’s testimony would have repudiated the applicability of the emergency

aid exception. This claim is meritless. Shrieves has already litigated the issue

of whether the emergency aid exception was applicable when Officer Cole

discovered contraband in Shrieves’ residence.1 Shrieves, supra.

____________________________________________


1  This Court, in deciding Shrieves’ direct appeal, addressed the issue of
whether the emergency aid exception was in effect when Officer Cole viewed
contraband in plain sight. There, we determined that:

       [T]he emergency aid exception[] applies when “police reasonably
       believe that someone within a residence is in need of immediate
       aid.” Commonwealth v. Galvin, 985 A.2d 783, 795 (Pa.
       2009)[.]

                                      *        *   *

       The relevant inquiry is “whether there was an objectively
       reasonable basis for believing that medical assistance was



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        On direct appeal, this Court determined that Munoz-Brown’s “medical

emergency had not dissipated when Officer Cole observed in plain view

Shrieves attempting to conceal baggies of crack cocaine.” Id. at 9; see also

Galvin, 985 A.2d at 795 (“Generally, the police will be excused from

compliance with the warrant and probable cause requirements of the Fourth

____________________________________________


       needed, or persons were in danger[.]” Commonwealth v. Potts,
       73 A.3d 1275, 1280 (Pa. Super. 2013)[.]

                                      *        *   *

       [T]he medical emergency had not yet dissipated when Officer Cole
       observed in plain view Shrieves attempting to conceal baggies of
       crack cocaine. While the EMTs attempted to resuscitate [Munoz-
       Brown] in the bedroom, Shrieves spoke with police in the hallway.
       He relayed to the police [Munoz-Brown’s] basic demographic
       information, her symptoms, her medical history, and the name of
       her physician. As the EMTs moved [Munoz-Brown] out to the
       ambulance, one of them asked Officer Cole and Shrieves about
       [Munoz-Brown’s] current prescriptions. Shrieves said that he
       would gather [her] medication bottles. Officer Cole followed
       Shrieves into the bedroom and told him that he needed to hurry
       if he wanted to go to the hospital in the ambulance. When Officer
       Cole saw Shrieves discard crack cocaine, he asked Shrieves “if
       [Munoz-Brown], by chance, used drugs at all.” [] Officer Cole told
       Shrieves that “it was important for [the] EMTs to know” if [Munoz-
       Brown] had used any controlled substances, and that it would help
       them treat her. Id. Officer Cole did not arrest Shrieves at that
       time.

       When responding to emergencies such as this one, police, fire and
       medical personnel must act swiftly and efficiently. It is reasonable
       to expect that EMTs might depend upon responding officers to
       collect vital information needed to accurately diagnose or treat the
       patient. That is exactly what happened in this case.

Commonwealth v. Shrieves, 346 MDA 2015 (Pa. Super. December 16,
2015).

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Amendment to the United States Constitution in only limited circumstances[;]

one of these circumstances is when the police reasonably believe that

someone within a residence is in need of immediate aid.”). Presently, Shrieves

advances a new suppression theory, couched in an ineffective assistance of

counsel claim, asserting that the EMTs’ testimony conclusively establishes that

the emergency aid exception was not applicable when police discovered

contraband in his residence.    This Court has already visited the issue of

whether the emergency aid exception was in effect, and thus, we decline to

reexamine that claim. Hutchins, supra.

      Moreover, Attorney Santiago had a reasonable basis for not calling EMTs

Stum and Dunn as witnesses at the suppression hearing. Attorney Santiago

theorized no exigency existed that specifically permitted Officer Cole to enter

Shrieves’ bedroom when he went to retrieve Munoz-Brown’s medication;

furthermore, Shrieves did not consent to Officer Cole entering his bedroom,

N.T. PCRA Hearing, 11/1/16, at 26, and thus, the contraband discovered in

plain view was inadmissible.      Attorney Santiago further theorized that

Shrieves’ distressed emotional state, due to Munoz-Brown’s cardiac arrest,

invalidated any consent he later gave police to search his residence. Attorney

Santiago, while aware of the emergency aid exception, id., chose not to raise

the issue of whether the emergency aid exception was applicable at the time

Officer Cole discovered contraband in Shrieves’ residence.

      The emergency aid exception applies when “police reasonably believe

that someone within a residence is in need of immediate aid.” Galvin, 985

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A.2d at 795. Here, Shrieves admitted that he was “excited throughout the

process,” and that “he was the one demanding that [Munoz-Brown] be

transported” to the hospital to receive further medical care.       N.T. PCRA

Hearing, 11/1/16, at 27-28.      Accordingly, Attorney Santiago’s suppression

theory accounted for Shrieves’ “excited” behavior, which largely contributed

to the EMTs’ decision to continue to resuscitate Munoz-Brown and transport

her to the hospital. Id. at 27 (“I found that [Shrieves] was excited throughout

the process. He was the one demanding that [Munoz-Brown] be transported

[to the hospital]”).   Id.   Under such circumstances, it was reasonable for

Attorney Santiago to theorize that such behavior would cause Officer Cole to

believe that the emergency aid exception was applicable when he entered

Shrieves’ bedroom. Galvin, supra.

      Attorney Santiago also considered the Lancaster Emergency Medical

Services Agency (“LEMSA”) report, which detailed the actions of EMTs Dunn

and Stum. Attorney Santiago ultimately concluded that the EMTs’ testimony

would not repudiate the existence of the emergency aid exception in light of

Shrieves’ excited emotional state and his directive to continue resuscitating

Munoz-Brown. N.T. PCRA Hearing, 11/1/16, at 26-27. Moreover, Shrieves

did not suggest that Attorney Santiago call EMTs Stum and Dunn as witnesses

until the conclusion of his suppression hearing.     Id. at 28.   Accordingly,

Attorney Santiago determined that the EMTs’ testimony would not contribute

to her suppression theory, and so she did not interview them prior to Shrieves’

suppression hearing. Id. at 27-28. Commonwealth v. Johnson, 966 A.2d

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523, 535-36 (Pa. 2009) (counsel has general duty to investigate and/or

interview potential witnesses; however, counsel may also make reasonable

decisions   given    circumstances   that     render   particular   investigation

unnecessary).       Attorney Santiago ultimately concluded there was no

reasonable strategic basis for calling the EMTs to testify at Shrieves’

suppression hearing. Snead, supra. See Commonwealth v. Pittman, 44

A.2d 436, 438 (Pa. Super. 1982) (failure to call witness whose testimony

would be helpful to defense constitutes ineffective assistance of counsel unless

counsel has reasonable basis for decision not to call witness)

      Shrieves’ attempt to recast his suppression argument as an ineffective

assistance claim warrants no relief.    Furthermore, we do not discern that

Attorney Santiago lacked a reasonable basis for not calling EMTs Stum and

Dunn or that the exclusion of such testimony prejudiced Shrieves’ defense.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2018




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