J-A22045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    OTTO PAXTON                                :
                                               :
                       Appellant               :   No. 17 EDA 2019

             Appeal from the PCRA Order Entered November 5, 2018
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0000231-2012


BEFORE: MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                         FILED OCTOBER 16, 2019

        Otto Paxton (Paxton) appeals pro se from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. We affirm.

        The PCRA court aptly summarized the factual history of this case as

follows:

              On June 24, 2011, police conducted a “controlled buy” at
        the Paxton residence located at 2407 Bloomsdale Road, in Bristol
        Township, Bucks County using a confidential informant.[1] On
        that date, a surveillance officer observed [Paxton] arrive at the
        residence driving a Volkswagen registered to him at that address.
        [Paxton] met briefly with his brother, William Paxton, outside the
        residence, then went inside where he remained for several
        minutes before leaving the property.         Shortly thereafter, a
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*   Retired Senior Judge assigned to the Superior Court.

1   Paxton’s mother owned the residence but did not live there.
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     surveillance officer observed the confidential informant, William
     Paxton and a female enter the residence. A few minutes later, the
     three of them came back outside. The confidential informant then
     left the residence, proceeded to a prearranged location and turned
     over two bags containing white powder to police. The substances
     were later analyzed and determined to be 0.44 grams of cocaine
     base and 0.1 grams of cocaine base.

            On July 7, 2011, a second “controlled buy” occurred at the
     residence. On that date, a surveillance officer observed two
     vehicles registered to [Paxton] parked in front of the residence, a
     black Ford F-150 and a black Cadillac DeVille. A surveillance
     officer observed the confidential informant arrive and enter the
     Paxton home where he remained for several minutes. The
     surveillance officer observed the confidential informant speaking
     to William Paxton at the doorway of the residence.             The
     confidential informant then left the residence, proceeded to a
     prearranged location and turned over a bag containing white
     powder to police.      The substance was later analyzed and
     determined to be 0.56 grams of cocaine base.

            On July 12, 2011, police executed a search warrant at the
     Paxton residence. When police arrived, William Paxton was inside
     the residence. A search of his person resulted in the seizure of a
     plastic bag filled with a mix of rice and 2.0 grams of cocaine base.

           During the search of the residence police found various
     documents belonging to [Paxton] and William Paxton on the dining
     room table. With regard to [Paxton], investigators found the
     current registration card for [his] black Cadillac. Investigators
     also found a document addressed to [Paxton] at the Bloomsdale
     Road address regarding emergency medical services he received
     in September of 2010.

            There were three bedrooms in the residence. The bedroom
     identified at trial as bedroom number one belonged to William
     Paxton. During a search of that bedroom, police recovered a
     loaded Hi Point 9-millimeter handgun with an obliterated serial
     number from the hood of a sweatshirt. Numerous rounds of 9-
     millimeter ammunition were found in a sock. Baggies containing
     white rice, cocaine and a small amount of marijuana were also
     found. The bedroom closet was equipped with a deadbolt lock.
     The key was in the lock. During the search of that closet, police


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      recovered a Stallard Arms 9-millimeter handgun, a green zip lock
      bag containing cocaine and U.S. currency totaling $1,850.

             The bedroom identified at trial as bedroom number two
      belonged to [Paxton]. The door to [Paxton’s] bedroom was
      padlocked when police arrived. After gaining entry by force, police
      recovered two handguns. A Jennings 9-millimeter semiautomatic
      handgun, loaded with nine rounds, was located on a chair. A
      Bryco Arms .380 semiautomatic handgun with an obliterated
      serial number was found in a holster in a box near the bed.
      Neither handgun was registered. In a bag next to the bed, police
      found a box with loose ammunition. In the bottom drawer of a
      dresser, police found mail addressed to [Paxton] and a sawed-off
      shotgun.    A vest containing twenty-four rounds of shotgun
      ammunition was found hanging in the closet. Inside another
      plastic bag, police found a box containing rifle and pistol
      ammunition.

             The third bedroom served as a storage room. Inside that
      room police found a pistol cleaning kit and mail addressed to
      [Paxton] at the Bloomsdale Road address. Inside the closet of
      that room, police found two cigar boxes filled with ammunition, a
      digital scale with white residue, latex gloves, and three razor
      blades wrapped inside of a napkin, all with white residue on them.
      The white material on the scale and razor blades was tested and
      was identified as being cocaine base.

            Ammunition for the weapons seized from [Paxton’s]
      bedroom and from William Paxton’s bedroom and ammunition for
      other types of firearms was found throughout the residence.

           On July 13, 2011, the day after the search warrant was
      executed, police returned to the residence and observed [Paxton]
      removing items from the home.

(PCRA Court Opinion, 5/06/19, at 1-4) (record citations and most footnotes

omitted).

      The cases against Paxton and William Paxton (William) were joined for

purposes of a jury trial. On April 27, 2012, Paxton was convicted of Possession

of a Firearm with Altered Manufacturer’s Number, Prohibited Offensive

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Weapons, Possession of a Firearm by a Person Prohibited, and Use/Possession

of Drug Paraphernalia.2

        The trial court granted defense counsel’s request to defer sentencing for

preparation of a pre-sentence investigation report (PSI). On August 22, 2012,

the court sentenced Paxton to an aggregate term of not less than twelve and

one-half nor more than twenty-five years’ incarceration. Paxton thereafter

litigated a successful PCRA petition reinstating his direct appeal rights. This

Court affirmed his judgment of sentence on May 4, 2016.

        On May 16, 2016, Paxton, acting pro se, filed the instant PCRA petition.

Appointed counsel filed amended PCRA petitions. Newly-appointed counsel

filed a Turner/Finley3 no merit letter and motion to withdraw as counsel. On

October 5, 2018, the PCRA court granted counsel’s motion to withdraw and

issued notice of its intent to dismiss the PCRA petition without a hearing, see

Pa.R.Crim.P. 907(1). Paxton then filed a response thereto. The PCRA court

entered its order dismissing the petition on November 5, 2018. This timely

appeal followed.

        Paxton argues that PCRA counsel was ineffective for failing to litigate

the issue of trial counsel’s ineffectiveness because trial counsel was ineffective

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2   18 Pa.C.S. §§ 6110.2, 908(a), 6105(a)(1) and 35 P.S. § 780-113(a)(32).

3 Commonwealth v. Turner, 544 A.2d 927 (Pa.                         1988),    and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).




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for failing to file a motion to suppress the evidence obtained from the search

of the Paxton residence because it was not supported by probable cause. He

also contended that trial counsel was ineffective for requesting a PSI report

that contained damaging information concerning his incarceration.4

       “The law presumes counsel has rendered effective assistance.” Postie,

supra at 1022 (citation omitted).              “In general, to prevail on a claim of

ineffective assistance of counsel, a petitioner must show, by a preponderance

of the evidence, ineffective assistance of counsel which, in the circumstances

of the particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.”          Id. at

1023 (citation omitted).       The petitioner must demonstrate that:        “(1) the

underlying legal claim is of arguable merit; (2) counsel’s action or inaction

lacked any objectively reasonable basis designed to effectuate his client’s

interest; and (3) prejudice, to the effect that there was a reasonable

probability of a different outcome if not for counsel’s error.” Commonwealth

v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017), appeal denied, 185 A.3d




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4 Although the Commonwealth asserts waiver of these claims, we find that
Paxton preserved them by raising them, albeit inartfully, in his Rule 907
response. (See Commonwealth’s Brief, at 17-18; Rule 907 Response, at 1-
3).




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967 (Pa. 2018) (citation omitted). “The petitioner bears the burden of proving

all three prongs of the test.” Postie, supra at 1023 (citation omitted).5

       Instantly, as noted above, Paxton’s case was joined with William’s case

for purposes of trial.      Although Paxton’s counsel did not file a motion to

suppress the search warrant for the Paxton residence, William’s attorney did

file such a motion. Paxton’s attorney was present at the suppression hearing

and the court offered him the opportunity to ask questions and argue. (See

N.T. Suppression, 4/23/12, at 18-19, 26). The court, after hearing testimony

and argument on the issue, denied the suppression motion, finding that the

warrant was supported by probable cause. (See id. at 33-34). Because the

suppression issue was fully litigated before Paxton’s trial, at a proceeding in

which his trial counsel participated, he has not demonstrated that trial counsel

was ineffective or that he suffered any prejudice with respect to this claim.

       Paxton next asserts that PCRA counsel was ineffective for failing to

litigate the issue of trial counsel’s ineffectiveness for requesting preparation


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5 See, e.g., Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super.
2012) (“Where the defendant asserts a layered ineffectiveness claim[,] he
must properly argue each prong of the three-prong ineffectiveness test for
each separate attorney. Layered claims of ineffectiveness are not wholly
distinct from the underlying claims, because proof of the underlying claim is
an essential element of the derivative ineffectiveness claim. In determining a
layered claim of ineffectiveness, the critical inquiry is whether the first
attorney that the defendant asserts was ineffective did, in fact, render
ineffective assistance of counsel.      If that attorney was effective, then
subsequent counsel cannot be deemed ineffective for failing to raise the
underlying issue.”) (citations, quotation marks and some brackets omitted).


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of a PSI report that contained damaging information regarding his

incarceration. (See Paxton’s Brief, at 16).

      The PCRA court explained that a combination of factors, including

Paxton’s lengthy and violent criminal history dating back to 1982, the nature

of his current offenses, and the sentencing guidelines, led it to impose its

sentence, not Paxton’s prison misconducts. (See PCRA Ct. Op. at 16-17; see

also N.T. Sentencing, 8/22/12, at 24-28). Accordingly, we agree with the

PCRA court’s conclusion that Paxton has not demonstrated prejudice with

regard to trial counsel’s request of a PSI. Thus, Paxton’s final ineffectiveness

claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/19




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