J-S67012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NATHAN WINSTON BUNDY                       :
                                               :
                       Appellant               :   No. 964 EDA 2018

                    Appeal from the PCRA Order April 2, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003368-2008


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                              FILED FEBRUARY 07, 2019

        Nathan Winston Bundy appeals from the order entered April 2, 2018, in

the Philadelphia County Court of Common Pleas, dismissing his first petition

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

Bundy seeks relief from the judgment of sentence of an aggregate term of 19

to 38 years’ imprisonment, imposed following his jury conviction of third-

degree murder, possession of a firearm without a license, and possession of

an instrument of crime (“PIC”).2 On appeal, Bundy contends the PCRA court

erred in dismissing his petition without first conducting an evidentiary hearing

on his claims that trial counsel was ineffective for: (1) failing to object when

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   See 42 Pa.C.S. §§ 9541-9546.

2   See 18 Pa.C.S. §§ 2502(c), 6106(a), and 907(a), respectively.
J-S67012-18



he was arraigned on a charge of persons not to possess firearms (18 Pa.C.S.

§ 6105) before the jury; (2) failing to file a motion to suppress two statements

he provided to police; and (3) failing to object to prosecutorial misconduct.

For the reasons below, we affirm.

       The facts underlying Bundy’s arrest and conviction were summarized by

a prior panel of this Court as follows:

       On December 13, 2007[,] at approximately 5:00 p.m., [Bundy]
       and Jerome Foreman (“Foreman”) engaged in a gun battle on a
       public street in a residential neighborhood in Philadelphia.
       Foreman called [Bundy] on the telephone and challenged him to
       come outside to settle an argument over a watch. As [Bundy]
       walked outside, Foreman saw him and began shooting. Foreman
       was standing in front of a convenience store when [Bundy]
       returned fire, firing thirteen (13) shots from a Ruger 9mm. One
       of these stray bullets entered the store behind Foreman and killed
       the store clerk, Craig Young.

Commonwealth v. Bundy, 24 A.3d 452 [284 EDA 2010] (Pa. Super. 2011)

(unpublished memorandum at 1) (citation omitted). Bundy was apprehended

fleeing from the scene, and initially told officers that someone had tried to rob

him.   See N.T., 5/7/2009, at 62-63.      After Bundy was unable to identify

persons stopped at two locations, he admitted to the officers that he had been

robbed two weeks earlier, and believed he “was being set up” at the time of

the shooting. Id. at 68. He claimed he fled after someone started shooting.

See id. at 68-69. Bundy was transported to the police station as a witness,

and within 30 minutes of his arrival, gave a similar statement to another

officer.   See id. at 150-154, 157, 164.      Later, Bundy was provided with




                                      -2-
J-S67012-18



Miranda3 warnings, and gave a second statement to police, in which he

conceded that he returned fire after others shot at him. See id. at 184-204.

        Bundy was charged with murder, PIC, and three firearm offenses.4

Following a jury trial, he was found guilty of the aforementioned crimes. On

August 12, 2009, Bundy was sentenced to a term of 19 to 38 years’

imprisonment for third-degree murder, a concurrent term of three and one-

half to seven years for the firearms conviction, and a concurrent term of two

and one-half to five years for the PIC conviction. Bundy filed a direct appeal

to this Court, which affirmed the judgment of sentence in an unpublished

decision. See Bundy, supra. On September 19, 2011, the Pennsylvania

Supreme Court denied his petition for review.      See Commonwealth v.

Bundy, 29 A.3d 794 (Pa. 2011).

        On December 11, 2012, Bundy filed a timely, pro se PCRA petition.5

Counsel was appointed, and filed an amended petition on October 23, 2014.
____________________________________________


3   Miranda v. Arizona, 384 U.S. 436 (1966).

4 In addition to carrying a firearm without a license, Bundy was also charged
with persons not to possess firearms and carrying a firearm on a public street
in Philadelphia.      See 18 Pa.C.S. §§ 6105(a)(1) and 6108.              The
Commonwealth, however, chose not to proceed on those charges at trial.

5 A PCRA petition must be filed within one year of the date the petitioner’s
judgment of sentence is final. See 42 Pa.C.S. § 9545(b)(1). In this instance,
Bundy’s judgment of sentence was final on December 19, 2011, 90 days after
the Pennsylvania Supreme Court denied review, and the period for filing a writ
of certiorari with the United States Supreme Court expired. See 42 Pa.C.S.A.
§ 9545(b)(3); U.S.Sup.Ct.R. 13.




                                           -3-
J-S67012-18



For reasons not revealed in the record, the case sat dormant until November

of 2016, when another new attorney was appointed.           That attorney filed

another amended petition, the one presently before us, on January 31, 2017.

The Commonwealth filed a motion to dismiss the petition on January 12, 2018.

Thereafter, on February 12, 2018, the PCRA court provided Bundy with notice

of its intent to dismiss the petition without first conducting an evidentiary

hearing pursuant to Pa.R.Crim.P. 907. Bundy did not file a response to the

court’s Rule 907 notice, and, therefore, the PCRA court dismissed Bundy’s

petition on April 2, 2018. This timely appeal follows.6

       As noted above, all three claims Bundy raises on appeal challenge the

ineffective assistance of trial counsel.         Our standard of review, when

considering the denial of PCRA relief, is well settled. “In reviewing the denial

of PCRA relief, we examine whether the PCRA court’s determination is

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

Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016) (internal punctuation and

citation omitted). Further, “a PCRA court may decline to hold a hearing on

the petition if petitioner’s claim is patently frivolous or lacks support from

either the record or other evidence.” Commonwealth v. duPont, 860 A.2d




____________________________________________


6 On April 3, 2018, the PCRA court ordered Bundy to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Bundy
complied with the court’s directive, and filed a concise statement on April 8,
2018.


                                           -4-
J-S67012-18



525, 530 (Pa. Super. 2004) (citation omitted), appeal denied, 889 A.2d 87

(Pa. 2005), cert. denied, 547 U.S. 1129 (2006).

      In order to obtain relief based upon an allegation of the ineffective

assistance of counsel, a PCRA petitioner must demonstrate: “(1) the claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) counsel’s ineffectiveness prejudiced him.”

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013).

Moreover, we presume counsel provided effective assistance, and “place upon

the appellant the burden of proving otherwise.” Id.

      First, Bundy argues the PCRA court erred in dismissing his petition

without a hearing on his claim that counsel was ineffective for “allowing [him]

to be arraigned” on the charge of persons not to possess firearms (18 Pa.C.S.

§ 6105) before the jury. Bundy’s Brief at 8. He insists: “This is America and

everyone knows that the only people that are prohibited from firearm

possession are convicted felons.”    Id.   Bundy maintains counsel had no

reasonable basis for the inaction, and he suffered prejudice because “his prior

felony was effectively revealed.” Id. at 10. Bundy contends the “suggestion

as to prior criminality” is the reason Section 6105 charges are severed from a

jury trial. Id.

      Here, the PCRA court determined Bundy failed to demonstrate “his

arraignment on VUFA [Violation of the Uniform Firearms Act] § 6105 before

the jury prejudiced the outcome of his trial.” PCRA Court Opinion, 6/7/2018,

at 5. The court explained:

                                     -5-
J-S67012-18


      At the onset of [Bundy’s] trial, [Bundy] was arraigned before the
      jury on five (5) charges. As is customary, the court officer asked
      [Bundy] how he pled to each charge. VUFA § 6105 was the second
      (2nd) charge out of five (5) to which [Bundy] was asked to plead.
      As noted by the Commonwealth, the court officer merely asked
      [Bundy], “to the charge of possession of a firearm prohibited, how
      do you plead?” [Bundy] responded “not guilty.” The court officer
      then proceeded to ask about the other three (3) charges. VUFA §
      6105 was not highlighted and did not stand out from the other
      charges in any way.           [Bundy’s] criminal past was never
      mentioned.       No evidence of [Bundy’s] criminal past was
      introduced. While [Bundy] is correct that “no reference may be
      made at trial to a defendant’s prior criminal acts”, this Court did
      not find that the limited verbal arraignment on VUFA § 6105, in
      any way constituted a reference to [Bundy’s] prior criminal
      history. It is illogical to assume that the mention of “possession
      of a firearm prohibited” signaled to the jury that [Bundy] had a
      prior felony history. There are a multitude of gun laws that
      regulate firearm possession; convicted felons are not the only
      class of citizens who are prohibited from possessing a firearm.
      The court will not assume, and [Bundy] has not proven, that
      arraigning [Bundy] on VUFA § 6105 before the jury, at the onset
      of trial, where his criminal past was not explicitly mentioned,
      prejudiced [Bundy].

Id. (record citations omitted).

      We agree with the PCRA court’s analysis. It is important to reiterate

Bundy was briefly arraigned on five charges just prior to the start of trial. See

N.T., 5/6/2009, at 271. The only mention of the Section 6105 offense was

the following:

      A COURT OFFICER: To the charge—on the same bill to the charge
      of possession of a firearm prohibited, how do you plead?

      [BUNDY]: Not guilty.

Id. Bundy was then arraigned on two additional gun charges, firearms not to

be carried without a license and carrying firearms in public in Philadelphia.

See id. at 271-272. As the PCRA court explained, there was no mention of


                                      -6-
J-S67012-18



Bundy’s criminal record, nor any indication that he was prohibited from

possessing a firearm based on a prior felony conviction.

       Moreover, we find Bundy’s reference to cases in which the trial court

denied a motion to sever a Section 6105 charge from a jury trial clearly

distinguishable. See Bundy’s Brief at 9-10. Indeed, in those cases, this Court

found the defendant was prejudiced because in order to prove the offense to

the jury, the Commonwealth was required “to show a previous conviction for

a violent crime.” Commonwealth v. Carroll, 418 A.2d 702, 704 (Pa. Super.

1980). Therefore, in such a case, “the jury [was] exposed to the fact that this

particular defendant had previously committed a violent crime.” Id. See also

Commonwealth v. Galassi, 442 A.2d 328 (Pa Super. 1982). Here, there

was absolutely no reference to Bundy’s prior convictions.7 Accordingly, this

claim fails.

       Next, Bundy contends the PCRA court erred in dismissing his petition

without a hearing on his claim that counsel was ineffective for failing to file a

pretrial motion to suppress two statements he provided to police.           See

Bundy’s Brief at 11. Bundy argues he gave the first statement without being

provided his Miranda rights, and “while in custody and [] not free to leave.”

Id. at 12. Although he was Mirandized before his second statement, Bundy

____________________________________________


7 We note, too, at the time those severance cases were decided, Section 6105
was titled, “Former convict not to own a firearm.” See 18 Pa.C.S. § 6105,
amended 1995, June 13, P.L. 1024, No. 17 (Spec. Sess. No. 1), § 2, effective
in 120 days (emphasis supplied).


                                           -7-
J-S67012-18



insists it was “tainted by the first non-Mirandized statement.” Id. Moreover,

he emphasizes he was in custody “for thirty hours” before giving the second

statement and “bullied into making a statement because police stated that

[he] was lying with no cutoff unless a confession occurred.” Id. at 13. Bundy

maintains he was prejudiced by counsel’s failure to seek suppression of his

statements because there was “very little evidence” against him, and the

Commonwealth used his “two contradictory statements to imply guilt.” Id. at

13-14.

      It is axiomatic that Miranda warnings are required only when a

defendant is subject to a custodial interrogation. See Commonwealth v.

Heggins, 809 A.2d 908, 914 (Pa. Super. 2002) (“In order to trigger the

safeguards of Miranda, there must be both custody and interrogation”),

appeal denied, 827 A.2d 430 (Pa. 2003). Our Supreme Court has explained:

      “The standard for determining whether police have initiated a
      custodial interrogation or an arrest is an objective one, with due
      consideration given to the reasonable impression conveyed to the
      person interrogated rather than the strictly subjective view of the
      troopers or the person being seized.” … A person is in custody
      when he is physically denied his freedom of action in any
      significant way or is placed in a situation in which he reasonably
      believes that his freedom of action or movement is restricted by
      the interrogation.

Commonwealth v. Yandamuri, 159 A.3d 503, 517-518 (Pa. 2017) (internal

citations omitted).   When determining whether a person is in custody for

Miranda purposes,

      [t]he court must consider the totality of circumstances, including
      factors such as “the basis for the detention; the duration; the
      location; whether the suspect was transferred against his will, how

                                     -8-
J-S67012-18


     far, and why; whether restraints were used; the show, threat or
     use of force; and the methods of investigation used to confirm or
     dispel suspicions.”

Commonwealth v. Cruz, 71 A.3d 998, 1004 (Pa. Super. 2013) (citation

omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

     In the present case, the PCRA court concluded there was no arguable

merit to Bundy’s claim because (1) Bundy was not in custody when he gave

his first statement, and (2) he was provided with Miranda warnings before

his second statement. The court opined:

             Here, [Bundy] was initially treated as a witness therefore
     Miranda warnings were unnecessary. [Bundy] was transported
     to the Homicide Unit by Housing Authority Officer’s (sic) as a
     witness to the shooting of Craig Young. At that time, he was not
     the focus of the investigation, but a witness. He was not
     handcuffed or restrained. [Bundy] was interviewed by Detective
     Buckley within thirty (30) minutes of arriving at the Homicide Unit.
     Detective Buckley asked [Bundy] for basic biographical
     information and whether he could read, write and understand
     English, to which [Bundy] replied “yes.” [Bundy] was also asked
     whether he was under the influence of alcohol or drugs and he
     replied “no”.      Detective Buckley then interviewed [Bundy]
     specifically about the shooting of Craig Young, asking how
     [Bundy] knew the victim and what [Bundy] knew about the
     shooting. [Bundy] told the detective that he heard someone call
     his name, then he heard shots and took off running until he was
     approached by police. Detective Buckley then requested [Bundy]
     read and sign the typed interview and [he] complied. After this
     initial statement was given to Detective Buckley, [Bundy] was left
     to sit on a bench in the waiting area, unrestrained, while waiting
     for transportation by the officer who brought him in, as was
     customary for witnesses brought in by police officers. [Bundy]
     was not detained or in custody for Miranda purposes. The
     Pennsylvania Supreme Court has found that when individuals are
     interviewed as a witness, like here, even if they are subsequently
     arrested, Miranda warnings are not required.5 Thus, [Bundy’s]
     claim that trial counsel as ineffective for failing to file a Motion to
     Suppress [Bundy’s] initial statement to homicide detectives is
     without arguable merit.

                                      -9-
J-S67012-18


         __________
         5 In Commonwealth v. Homer, 442 A.2d 682 (Pa. 1982),

         the Pennsylvania Supreme Court found Miranda warnings
         were unnecessary where a defendant was brought to the
         homicide division as a witness, in a locked police van and
         treated as a witness until police reviewed statements of
         other witnesses and made a decision to arrest the
         defendant.
         __________

            Accordingly, [Bundy’s] assertion that his second,
      Mirandized statement, should be suppressed because it was
      tainted by the first, non-Mirandized statement is meritless
      because [Bundy’s] first statement did not require Miranda
      warnings.

PCRA Court Opinion, 6/7/2018, at 6-7 (record citations omitted).

      Our review of the record supports the trial court’s findings. When Bundy

was initially stopped by the housing officers, he told them he had been a victim

of a robbery. In response, the officers relayed a description he provided of

the alleged suspect over the police radio, and transported Bundy to two

separate locations to see if he could identify suspects that were stopped based

on his description.   See N.T., 5/7/2009, at 62-65. Later, after the officers

took Bundy back to the scene of the shooting, Bundy acknowledged he had

been robbed two weeks earlier, and he believed he was the target of the

shooters. See id. at 68-69. Bundy was then transported to the police station,

where he was interviewed by Detective Stephen Buckley. Detective Buckley

explained that, at that time, Bundy was simply a witness to the shooting. See

id. at 149-150. See also id. at 156 (“He was present at the scene of the

shooting. They brought him in as a witness.”). The detective stated:




                                     - 10 -
J-S67012-18


      When I completed my interview, I sat [Bundy] back out on the
      bench where he first came from, and I let him know as soon as
      we are done interviewing the officers that brought you in, you are
      going to be getting out of here.

Id. at 156. Bundy was not handcuffed, and was given food. See id. at 217-

219. Sometime after speaking with the officers who transported Bundy to the

station, the detectives determined there were inconsistencies in Bundy’s

account.     See id. at 165.   It was at that point he became a suspect.

Accordingly, because at the time of the first interview, Bundy was not in

custody, Miranda warnings were not required. Therefore, we agree with the

PCRA court that there is no arguable merit to his claim that counsel should

have filed a motion to suppress his first statement.

      With regard to his second statement, Bundy’s argument focuses on his

claim that the second Mirandized statement was tainted by the first, non-

Mirandized statement. See Bundy’s Brief at 12. Because we have concluded

the first statement did not require Miranda warnings, we agree with the PCRA

court that the second statement was not tainted. See PCRA Court Opinion,

6/7/2018, at 7.    Furthermore, to the extent Bundy contends his second

statement was involuntary, we find this claim is undeveloped, and therefore

waived. Bundy cites one case for the proposition that “[e]xtended time in

custody” can undermine the voluntariness of a defendant’s statement.

Bundy’s Brief at 12.   His entire argument on this issue is limited to the

following:

      [Bundy] was in custody for thirty hours prior to giving the second
      statement and he was bullied into making a statement because


                                    - 11 -
J-S67012-18


       police stated that [he] was lying with no timely cutoff unless a
       confession occurred.

Id. at 13. He provides no further argument, citation to relevant authority, or

explanation as to why his statement was involuntary. Accordingly, we find

this claim waived.8 See Commonwealth v. Rhodes, 54 A.3d 908, 915 (Pa.

Super. 2012) (defendant waived issue when he failed to “adequately develop

[the] argument”).

       In his final claim, Bundy challenges the PCRA court’s refusal to grant

him an evidentiary hearing on his claim that trial counsel was ineffective for

failing to object to prosecutorial misconduct.     See Bundy’s Brief at 14-15.

Specifically, Bundy asserts the prosecutor improperly elicited testimony

“about a receipt for $500 from a lawyer that was in [Bundy’s] possession when

arrested.”    Id. at 14.     He insists this testimony was improper because it

implied he either had a criminal record, or he anticipated his arrest for this

crime:

             Presently, the mention of a receipt for $500 from a lawyer
       in [Bundy’s] possession implied prior criminality because no young
       men pay lawyers for anything other than crimes, especially those
       who are charged with Murder before a jury. Moreover, and
       potentially worse, the information would imply consciousness of
____________________________________________


8 It merits mention the PCRA court found Bundy’s second statement was
voluntary under the totality of the circumstances. See PCRA Court Opinion,
6/7/2018, at 8 (noting Bundy was “unrestrained, given food and water,
allowed to use the restroom and was not injured or ill.”). Further, the court
concluded the record did not support Bundy’s assertion that he was “abused
or threatened into confession to police.” Id. at 8-9. We find no basis to
disagree.




                                          - 12 -
J-S67012-18


       guilt in the present case because it implies that [Bundy] was
       giving money to an attorney in the present matter in anticipation
       of arrest.

Id. at 15.9

       It is well-settled that “generally no reference may be made at trial in a

criminal case to a defendant’s arrest or incarceration for a previous crime[.]”

Commonwealth v. Johnson, 838 A.2d 663, 680 (Pa. 2003), cert. denied,

543 U.S. 1008 (2004). Nevertheless, “there is no rule in Pennsylvania which

prohibits reference to a defendant’s incarceration awaiting trial or arrest for

the crimes charged.” Id.

       The receipt recovered from Bundy’s car was referred to in the following

context. After Bundy was arrested, the police obtained a search warrant for

his car. Detective Francis Kane executed the warrant and described the items

recovered from the automobile as he displayed them to the jury:

       [There is] a Motorola cell phone.

             One is a receipt from a lawyer’s office in the amount of $500,
       and it was received from Nathan Bundy.

             This is a Home Depot – looks like a bill from Home Depot in
       the name of Nathan Bundy.

            This is a correspondence of Community Bank in the name of
       Nathan Bundy.
____________________________________________


9 While Bundy raised this same issue in his second amended PCRA petition,
the claim in his brief differs slightly from the issue listed in his concise
statement, where he asserted his “pretrial detention was clearly elicited.”
Statement of Matters Complained of on Appeal Pursuant to Pennsylvania Rule
of Appellate Procedure 1925, 4/8/2018, at 2. However, we decline to find
waiver on this basis. See Pa.R.A.P. 1925(b)(4)(v) (“Each error identified in
the Statement will be deemed to include every subsidiary issue contained
therein which was raised in the trial court”).

                                          - 13 -
J-S67012-18


            And this is a sales receipt from Raymour & Flanigan
      Furniture in the name of Nathan Bundy.

N.T., 5/11/2009, at 8-9. That was the sole reference at trial to the lawyer’s

receipt.

      The PCRA court disposed of this claim as follows:

             Here, reference to the receipt for legal services found in
      [Bundy’s] possession was made in passing and not improper. …
      This Court rejects [Bundy’s] claim that the receipt implies prior
      criminality “because no young men pay lawyers for anything other
      than crimes….” The testimony regarding the receipt was made
      within a list of items found in [Bundy’s] possession. It was not
      highlighted nor was any specific information regarding the nature
      of the legal service given. Furthermore, as the Supreme Court
      stated in Johnson, “there is no rule in Pennsylvania which
      prohibits reference to a defendant’s incarceration awaiting trial or
      arrest for the crimes charged.” [Bundy] has failed to establish
      that trial counsel was ineffective for failing to object to the
      testimony regarding the receipt because testimony regarding the
      receipt for legal services was made in passing and reference to a
      defendant’s pretrial incarceration is not improper. Thus, this claim
      is without arguable merit.

PCRA Court Opinion, 6/7/2018, at 9-10 (citations omitted).

      We agree with the trial court’s conclusion that this issue has no arguable

merit. Moreover, even if Bundy could demonstrate he met the first prong of

the ineffectiveness test, he has failed to establish how this brief, passing

reference to a receipt from a lawyer for undisclosed services prejudiced him.

Accordingly, no relief is warranted.

      Order affirmed.




                                       - 14 -
J-S67012-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/19




                          - 15 -
