J-S40034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA             : IN THE SUPERIOR COURT OF
                                             :       PENNSYLVANIA
                                             :
               v.                            :
                                             :
                                             :
    BILL MARTIN MILINSKI,                    : No. 3838 EDA 2016
                                             :
                     Appellant               :

                   Appeal from the Order November 17,.2016
                In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0001044-2013 and
                             CP-45-CR-0002096-2013


BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                                FILED JULY 19, 2017

        Appellant Bill Martin Milinski appeals from the November 17, 2016

Order denying his first Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, and challenges the effectiveness

of trial counsel. After review of the record and the Briefs of the parties, we

adopt the Opinion filed by the PCRA Court on November 17, 2016, as our

own, and affirm.

        On April 10, 2013, Appellant was at Kathy Hockenjos’s apartment in

Smithfield Township when the next-door neighbor, Shannon Henley, heard

banging on the wall coming from the apartment.             Henley sent a text

message to Hockenjos asking her to stop the noise.             The banging then


*
    Former Justice specially assigned to the Superior Court.

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became louder, and Appellant, who was drunk at the time, became

belligerent, stating “just come outside and fight.” N.T. Trial, 3/11/14, at 66,

72.   Henley saw Appellant outside his window with a knife in his hand,

shouting that if Henley did not come out in 15 minutes, he was going to kick

in Henley’s door.   Id., at 69-70.   Henley, who had had prior run-ins with

Appellant and knew that Appellant had guns, called the police.

      Pennsylvania State Troopers Kearney and Olszar responded and, after

Henley informed them that Appellant had firearms in the apartment, five

more troopers were called in to cover the back door and area around the

building at the tree line.   Appellant exited the apartment, and Trooper

Riddell handcuffed him for safety, walked him to a nearby parking lot, and

patted him down for weapons. Appellant was not armed, but when asked

about weapons in the home, Appellant informed troopers that there were

two guns in the apartment that belonged to Hockenjos, his girlfriend.

Appellant also volunteered that he had moved from New Jersey to the

Smithtown apartment three months prior “to get away from all this stuff,”

i.e. similar problems that he had experienced in New Jersey. N.T. Omnibus

Hearing, 10/31/13, at 27, N.T. Trial, 3/11/14, at 149, 161.

      Hockenjos invited State Trooper Kearney into the apartment.          She

retrieved two guns from the living room, and gave them to Trooper Kearney,

telling him that the firearms were hers.        See N.T. Omnibus Hearing,

10/31/13, at 14-16, 19-20; N.T. Trial, 3/11/14, at 171-72.


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        The Commonwealth charged Appellant with, inter alia, Person not to

Possess a Firearm, Terroristic Threats, Harassment, and Public Drunkenness.

After a preliminary hearing, the court bound the charges over for trial. At

Appellant’s arraignment on May 29, 2013, the court ordered that Omnibus

Pre-trial Motions be filed by June 26, 2013.

        On July 30, 2013, Appellant filed an Omnibus Pre-trial Motion,

including a Motion to Suppress, and contended, inter alia, that his

statements about his moving to Pennsylvania should be suppressed because

he was not given his Miranda warning.1, 2

        The court held a hearing on Appellant’s omnibus motion on October

31, 2013. The court subsequently granted the Commonwealth’s Motion to

Reopen,     and   held   an   additional   hearing   where   the   Commonwealth

introduced Appellant’s application for a Pennsylvania State Identification

card.

        On January 21, 2014, the court dismissed the Omnibus Motion as

untimely pursuant to Pa.R.Crim.P. 579(A).3 See Trial Ct. Order and Opinion,



1
    Miranda v. Arizona, 384 U.S. 436 (1966).
2
  On August 30, 2013, Appellant was again charged with various offenses
after Appellant and Henley had another run-in, which escalated and resulted
in Appellant breaking Henley’s arm with a crowbar after Henley had fired a
warning shot into the air. See N.T. Trial, 3/11/14, at 71-76. Those charges
were consolidated with the April 2013 charges. Henley was not charged.
3
 Pa.R.Crim.P. 579(A) provides, in relevant part, that an “omnibus pretrial
motion for relief shall be filed and served within 30 days after arraignment,
unless opportunity therefor did not exist, or the defendant or defense
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dated 1/21/14. The court nonetheless addressed the merits of the Motion

and, after noting its finding that the troopers’ testimony was credible,

concluded that in light of the circumstances, the conditions of Appellant’s

detention were similar to that of a valid investigatory detention to gather

information and to determine if there was a safety concern. Id. at 8. The

court also concluded that Appellant had offered the statement about his

having moved to Pennsylvania from New Jersey without any prompting from

the troopers.   Id.   Having determined that there had been no Miranda

violation, the court concluded that Appellant’s statement about the guns and

his current residence would not be suppressed.4

      Appellant was present for jury selection on March 4, 2014. On March

10, 2014, the first day of trial, Appellant did not appear because he was out

of state and allegedly had no transportation. The court continued the trial to

the next day. On March 11, 2014, Appellant failed to appear, and the court

issued a warrant for his arrest and held the trial with Appellant in absentia.

The jury found him guilty of all charges, except for Public Drunkenness.

      Appellant was subsequently apprehended and on June 30, 2014, the

court sentenced him to an aggregate term of 42 to 84 months’ incarceration.

After the denial of his post-sentence motion, Appellant timely appealed, and



attorney … was not aware of the grounds for the motion, or unless the time
for filing has been extended by the court for cause shown.”
4
 The court also noted that Hockenjos had invited Trooper Kearney into the
apartment and the guns obtained were, therefore, admissible.
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this Court affirmed the Judgment of Sentence.            Commonwealth v.

Milinski, No. 2240 EDA 2014 (Pa. Super. filed June 5, 2015).

        Appellant filed a timely pro se PCRA Petition, amended after the

appointment of counsel, alleging ineffective assistance of trial counsel for

failing to file a timely Pre-trial Motion to Suppress. The PCRA court held a

hearing on June 23, 2016, and denied the Petition on November 17, 2016.

Appellant timely appealed to this Court.

        Appellant raises one issue: “Whether the [PCRA] court erred in finding

that trial counsel provided effective assistance of counsel.” Appellant’s Brief

at 5.

        We review the denial of a PCRA Petition to determine whether it is

supported by the record and free of legal error. Commonwealth v. Fears,

86 A.3d 795, 803 (Pa. 2014). We grant great deference to the findings of

the PCRA court, and “these findings will not be disturbed unless they have

no support in the certified record.” Commonwealth v. Wilson, 824 A.2d

331, 333 (Pa. Super. 2003). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”    Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Moreover, “where a

PCRA court’s credibility determinations are supported by the record, they are

binding on the reviewing court.” Commonwealth v. White, 734 A.2d 374,

381 (Pa. 1999).


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      Appellant avers that he received ineffective assistance of trial counsel.

The    law    presumes     counsel    has    rendered     effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on Appellant.” Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the

particular course of conduct pursued by counsel did not have some

reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceeding would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      Appellant avers that his underlying claim, i.e., that his statement to

the troopers should have been suppressed, has arguable merit.            He also

alleges that counsel did not have a reasonable basis for failing to file a

timely pre-trial motion, and but for counsel’s error, “Appellant would have

had a substantially greater likelihood of having said statements suppressed”

and “the suppression of the statements would have had a significant impact

at trial [because] Appellant’s statement that he had been residing in the

apartment and his acknowledgement that there were firearms located in the




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residence constituted the only evidence establishing Appellant’s constructive

possession of the firearms.” Appellant’s Brief at 29-30.

        The PCRA Court thoroughly addressed Appellant’s arguments in its

Opinion denying the PCRA Petition, with citation to relevant statutory and

case law, as well as thoughtful analysis and reasoning. The certified record

supports the court’s findings. Therefore, we adopt that Opinion as our own

for purposes of this appeal, and affirm the denial of relief. See PCRA Court

Opinion, dated November 17, 2016 (finding that the public safety exception

to Miranda applied under the circumstances presented and Appellant’s

statement about the guns in the residence was therefore admissible, id. at

9-10;    (2)   Appellant’s   statement   about   his   current   residence   was

spontaneous, voluntary, and not in response to custodial interrogation, id. at

10; and (3) notwithstanding counsel’s unexplained tardiness in filing the

omnibus motion, Appellant did not suffer prejudice because his statements

were not subject to suppression, id. at 11).

        We direct the parties to annex the PCRA court’s November 17, 2016

Opinion to all future filings.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2017




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