J-S54020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ENRICO THOEDIS RHODES, SR.                 :
                                               :
                       Appellant               :   No. 133 WDA 2018

               Appeal from the PCRA Order December 28, 2017
      In the Court of Common Pleas of Mercer County Criminal Division at
                        No(s): CP-43-CR-0000564-2015


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.:                          FILED NOVEMBER 08, 2018

        Enrico Thoedis Rhodes, Sr., appeals from the order denying his petition

for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1

Upon review, we affirm.

        Robert Butch, a drug addict, worked at his parents’ business, Butch Auto

Salvage.     Gary and Cynthia Butch, Robert Butch’s parents, lived in an

apartment above their salvage yard office.         A tall cyclone fence with locks

enclosed both the salvage yard and the apartment. Butch’s parents decided

they had had enough of his drug addiction and wrote him a letter forbidding

him from entering the entire auto salvage property, including their apartment.

Thereafter, Butch’s parents changed the locks on the fence and building


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1   42 Pa.C.S.A. §§ 9541-9546.
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because Butch had a key to the previous locks. Gary and Cynthia Butch locked

the fence and building around 5:00 P.M. on the day in question.

      Butch owed a drug debt to Carl Hammonds. To repay this debt, Butch

planned to give Hammonds a sport utility vehicle. Butch went to Youngstown,

Ohio to pick up Hammonds and bring him back to Grove City. Rhodes

accompanied them on the ride back.

      On August 15, 2014, around 8:00 p.m., while at Butch’s home, which

was located across from the salvage yard, Hammonds decided he did not want

the SUV and instead wanted cash. Butch informed Hammonds he owned a

safe, which contained cash, at the salvage yard. Butch told Hammonds he was

forbidden to be on the salvage yard premises, but Hammonds allegedly

insisted they go get the safe anyway. The three men walked across State

Route 58, through high grass and weeds, crawled under the fence, broke a

few windows and entered the salvage yard building. Hammonds and Rhodes

carried the heavy black safe back through the field, where Butch met them

with his car, a Volkswagen Beetle.

      At the same time, Sheriff Gary Hartman was returning from dinner with

his family and observed two black males carrying a heavy object out of the

high grass field, which he found suspicious. Sheriff Hartman exited the car

and encountered Butch, who told the officer a story about keeping his safe

near a tree stand so his girlfriend would not find it. By this point, the safe

was in the trunk of Butch’s Volkswagen. Hammonds and Rhodes, the two


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black men Sheriff Hartman had seen walking out of the field, were sweating

and appeared fidgety in the back seat of Butch’s car.

      Trooper Timothy Callahan of the Pennsylvania State Police arrived and

Sheriff Hartman filled him in on what he had observed.       Sheriff Hartman

remained as backup until other state troopers arrived. Trooper Callahan asked

the three men to exit the car and, after having a conversation with Butch,

conducted a safety frisk on each of the individuals and found nothing. Trooper

Callahan searched the car, for safety, and found a jacket.        The jacket

contained items that did not feel like weapons or contraband.         Trooper

Callahan pulled the items out of the pocket and found them to be a wallet and

gold jewelry, which he subsequently placed back in the pocket. Rhodes asked

for the jacket because he was chilly, even though he was visibly sweating. As

Trooper Callahan handed Rhodes the jacket, the wallet fell out, at which time

Rhodes identified the wallet as his. Trooper Callahan looked inside the wallet

and noticed it was brand new, unused and still had cardboard inside. Trooper

Callahan subsequently let the three men go.

      About a half hour after letting the men go, Trooper Callahan received a

call that Butch’s Salvage Yard had been burglarized. Upon responding to that

call, Gary Butch informed Trooper Callahan that a window was broken, and a

safe, money, jewelry and wallets were missing. Gary Butch stated that the

wallets were in new condition, still containing the cardboard, because they

were gifts.


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       On June 1, 2015, the District Attorney’s Office filed a criminal

information charging Rhodes with burglary, theft by unlawful taking, criminal

conspiracy/burglary, criminal conspiracy/theft, criminal trespass and criminal

mischief. Thereafter, Rhodes filed an omnibus pre-trial motion, which the

court granted in part by finding Trooper Callahan’s initial search of the jacket

to be unlawful because the pat-down search of it clearly indicated it did not

contain a weapon. The court, therefore, suppressed the wallet and jewelry

found during that initial search of Rhodes’ jacket as well as any reference

made to them or Rhodes’ statements about them.2 See Trial Court Order,

8/5/15. However, the court ruled that the events that occurred after Rhodes

asked for the jacket -- the wallet falling out, Rhodes’ statement that the wallet

was his and the trooper’s description of the wallet-- would be admissible at

trial. Trial Court’s Rule 1925(a) Opinion, 4/4/18, at 4-7.




____________________________________________


2 In Rhodes’ motion to suppress, he alleged, “after charges were filed, it
became clear that law enforcement was trying [to] link the items found in the
jacket, [the jewelry and wallet], with items allegedly taken from [Gary and
Cynthia Butch] during the alleged burglary.” Appellant’s Omnibus Pretrial
Motion to Suppress, 7/2/15.




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        On September 25, 2015, a jury convicted Rhodes of theft by unlawful

taking,3 criminal conspiracy,4 criminal trespass,5 and criminal mischief.6 On

April 1, 2016, the court sentenced Rhodes to an aggregate term of

incarceration in a state correctional facility of not less than 36 months, but

not more than 100 months.7 Id. at 1-2. Rhodes filed a direct appeal, and this

Court affirmed his judgment of sentence. See Commonwealth v. Rhodes,

No.    628   WDA     2016    (Pa.    Super.    filed   April   6,   2017)   (unpublished

memorandum).

        On August 31, 2017, Rhodes filed a timely pro se PCRA petition.

Thereafter, the court appointed counsel for Rhodes, who filed an amended

petition challenging trial counsel’s effectiveness. Specifically, Rhodes claimed

counsel was ineffective in failing to object to Trooper Callahan’s testimony

about the contents of the wallet after it fell out of the pocket of the jacket and

for failing to raise this issue in the Rule 1925(b) statement. By order dated

January 3, 2018, the PCRA court denied relief. This appeal followed.



____________________________________________


3   18 Pa.C.S.A. § 3921(a).

4   18 Pa.C.S.A. §§ 903 & 3921(a).

5   18 Pa.C.S.A. § 3503(a)(1)(ii).

6   18 Pa.C.S.A. § 3304(a)(5).

7Butch was not charged with stealing the safe or its contents, instead he was
charged with stealing other cash and items inside the building. Trial Court’s
Rule 1925(a) Opinion, 7/22/16, at 8.

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      On appeal, Rhodes raises the following issues:

      [Whether] the [PCRA c]ourt erred when [it] failed to find [Rhodes’]
      trial counsel ineffective for (1) not including in [the Rule 1925(b)]
      Statement of [Errors] Complained of on Appeal that the
      Commonwealth improperly referenced the contents of the wallet
      when the wallet fell from [Rhodes’] jacket and/or (2) failing to
      object to the testimony of Commonwealth Witness Trooper
      Callahan . . . relative to the contents and/or appearance of the
      wallet when the wallet fell from [Rhodes’] jacket.

Appellant’s Brief, at 4.

      The standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination, and whether the PCRA court’s

determination is free of legal error. Commonwealth v. Allen, 732 A.2d 582,

586 (Pa. 1999). The reviewing court gives great deference to the PCRA court

findings if the record contains any support for these findings.               See

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. 2001) (emphasis added).

      Rhodes’ claims on appeal challenge trial counsel’s effectiveness. “To

prevail on an ineffectiveness claim, appellant must demonstrate that: (1) his

claims are of arguable merit, (2) counsel had no reasonable basis for his

actions, and (3) counsel’s actions prejudiced appellant.” Allen, 732 A.2d at

587; see also Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. Super.

1987). Relating to the prejudice prong of the ineffectiveness test, the PCRA

petitioner must demonstrate “that there is a reasonable probability that, but

for counsel’s error or omission, the result of the proceeding would have been

different.” Commonwealth v. Ly, 980 A.2d 61, 73 (Pa. 2009).




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      The court found the initial search of the jacket unlawful and suppressed

any reference to the contents stemming from that search as fruit of the

poisonous tree. However, the court also ruled that evidence relating to the

wallet arising after it fell out of the jacket pocket was admissible. Trooper

Callahan’s testimony did not violate the court’s suppression order, as it related

to the latter time-period. Moreover, counsel had a reasonable basis for not

objecting. Although there was some discrepancy in Trooper Callahan’s

testimony with respect to the sequence of events, in particular, at what point

he opened the wallet (at the suppression hearing, he testified he opened the

wallet during the initial search that was suppressed; at trial, he testified that

he opened it after it fell out of the jacket), trial counsel testified that he did

not object because he did not want to draw further attention to this issue.

Thus, Rhodes failed to establish that trial counsel lacked a strategic basis for

choosing to forego an objection. See Commonwealth v. Koehler, 36 A.3d

121, 132 (Pa. 2012) (counsel’s decision not to object and to avoid highlighting

issue for jury was objectively reasonable strategy). Finally, Rhodes did not

establish that but for counsel’s failure to object to this testimony, the result

would have been different. The evidence at trial, including the testimony of

co-defendant Robert Butch, as well as that of Sherriff Hartman and Trooper

Callahan, placed Rhodes at the scene. See Ly, supra.

      The PCRA court’s findings are supported by the record. Allen, supra.

We, therefore, affirm the PCRA court’s order denying relief.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/8/2018




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