J-S04021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JAY JONES BAIRD,

                        Appellant                  No. 146 WDA 2015


              Appeal from the PCRA Order December 15, 2014
          In the Court of Common Pleas of Westmoreland County
            Criminal Division at No(s): CP-65-CR-0000941-2008


COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JAY JONES BAIRD,

                        Appellant                  No. 147 WDA 2015


              Appeal from the PCRA Order December 15, 2014
          In the Court of Common Pleas of Westmoreland County
            Criminal Division at No(s): CP-65-CR-0000942-2008


BEFORE: BOWES, OLSON, AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                      FILED FEBRUARY 10, 2016

     Appellant, Jay Jones Baird, appeals from the order entered on

December 15, 2014, dismissing his first petition filed under the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. In addition, PCRA



*Retired Senior Judge assigned to the Superior Court.
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counsel has filed a petition to withdraw. We affirm and grant PCRA counsel’s

petition.

       On January 21, 2008, at approximately 10:31 p.m., Officer Ray

Dupilka of the Latrobe Police Department was dispatched to 513 Ligonier

Street in Latrobe for a report of an unresponsive male. Upon his arrival at

the second floor apartment, he observed the body of Bradley Holnaider (the

victim) lying on the floor in the living room of the residence.          He also

encountered Appellant inside the apartment.

       Following their investigation, the police eventually arrested Appellant

and charged him with the victim’s homicide, robbery, and drug offenses. 1

Appellant filed pre-trial motions in which he sought the suppression of

certain items seized during the investigation, as well as statements and a

confession he allegedly made. The trial court held an evidentiary hearing on

December 15, 2008.          The trial court summarized the pertinent testimony

from this hearing as follows:

            Appellant told Officer Dupilka that [the victim] had been
            staying with him in the apartment for a while, and that he
            had returned home to find the [victim] unresponsive in the
            living room. He further opined that [the victim] had
            suffered a drug overdose. [Appellant] consented to the
            search of the apartment and the apartment was then
            searched and processed by Westmoreland County
            Detective Hugh Shearer.      [Appellant] was interviewed
____________________________________________


1
  18 Pa.C.S.A. §§ 2501(a), 3701(a), and 35 P.S. §§ 780-113(a)(16), and
(30), respectively.




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       inside the apartment by Officer Dupilka and Westmoreland
       County Detective Anthony Marcocci at approximately 3:00
       a.m. on January 22, 2008. [Appellant] related that the
       [victim] came to stay at the apartment on January 20,
       2008, and that he believed [the victim] was inside the
       apartment on January 21, 2008, when [Appellant] left to
       go to work. [Appellant] told the officers that he spent
       some time with friends after work, and returned to the
       apartment at approximately 10:30 p.m., when he found
       [the victim’s] body. [Appellant] was also interviewed by
       Westmoreland County Detectives Richard Kranitz and
       Robert Weaver at his place of employment the following
       day.

       Officers obtained a search warrant for [Appellant’s]
       apartment on January 23, 2008, and executed the search
       warrant on that same day.             Upon arriving at the
       apartment, [the] officers first knocked loudly on the door
       of the apartment and announced their presence at least six
       times. There was no response from inside the apartment.
       There also was no response from [Appellant] when officers
       attempted to contact him by telephone. It was then that
       the officers decided to remove the front door of the
       apartment by removing the hinge pins from the door.
       After the officers had removed the pins and were about to
       remove the door, the front door was opened by [Appellant]
       from the inside, causing it to collapse onto the officers. It
       was as if [Appellant] had pushed the door onto the
       officers. Officer Dupilka testified that he was startled by
       [Appellant’s] actions, and immediately asked him to come
       out into the hallway, where he conducted a pat-down
       search of [Appellant] for officer safety.

       Officer Dupilka knew that [Appellant] had engaged in
       illegal drug use in the past. Therefore, rather than running
       his hands up and down [Appellant’s] pants, he used a
       “squeezing motion” when conducting the pat-down so as
       to lessen the likelihood of sustaining a needle-stick injury.
       During the pat-down of [Appellant], Officer Dupilka felt
       several tablets inside plastic in the left front pocket of
       [Appellant’s] pants. He immediately recognized this as
       suspected contraband, based upon his training and
       experience in narcotic investigations. Upon retrieving this
       object from [Appellant’s] pocket, [Appellant] advised


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          Officer Dupilka that the items were five (5) [S]uboxone
          tablets packaged in a plastic bag.

          The officers then proceeded to search [Appellant’s]
          apartment pursuant to the search warrant. A marijuana
          smoking pipe was located in plain view on the nightstand
          beside [Appellant’s] bed, and was seized by the officers.
          Also seized were a tan leather chair, a tan leather
          ottoman, and a Phillips universal remote control. During
          the search, [Appellant] insisted that the officers search the
          kitchen garbage can, suggesting that there might be
          evidence in that item.          Detective Kuhns of the
          Westmoreland County Detective Bureau complied, and
          located several empty heroin packets.             [Appellant]
          suggested that these empty packets had belonged to the
          [victim].

          [Appellant] was placed under arrest for possession of the
          Suboxone tablets, and he was transported to the Latrobe
          police station. Officer Dupilka asked [Appellant] if he
          wanted to be interviewed about how he had obtained the
          Suboxone tablets. [Appellant] indicated that he would
          speak to the officers, was Mirandized[2] and signed a
          written Waiver of Rights form provided by the police. The
          interview began at approximately 7:12 p.m. on January
          23, 2008.

          [Appellant] initially indicated that the tablets belonged to
          his fiancé.    When confronted with certain conflicting
          evidence that the Suboxone tablets had belonged to the
          [victim], [Appellant] recanted his original statements and
          told police that he had purchased the tablets from the
          [victim] before he died. After further questioning on this
          subject, Officer Dupilka told [Appellant] that he thought
          [Appellant] was lying. He also told [Appellant] that there
          was certain evidence regarding the state of the [victim’s]
          body that called into question whether he had died of an
          overdose. [Appellant] continued to provide conflicting and
          inconsistent statements to Officer Dupilka, and tried to talk
          about subjects unrelated to the focus of the interview.
          When confronted with [these] inconsistencies, [Appellant]
____________________________________________


2
    Miranda v. Arizona, 348 U.S. 436 (1966)



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       replied that he was not involved in killing the [victim]. At
       this point, Detective Kranitz, who was also in the interview
       room, told [Appellant] that he did not believe him, and
       left. After [Appellant] expressed concern that Detective
       Kranitz did not believe him, [Appellant] was offered and
       agreed to submit to a voice stress examination.

       [Appellant] was provided with pizza while waiting for the
       voice stress examiner, Detective [Paul] Burkey, to arrive.
       At no time did [Appellant] request an attorney or ask to
       terminate the interview process. Detective Paul Burkey
       arrived at the Latrobe Police station shortly before 10:00
       p.m[.] He introduced himself to [Appellant], explained
       that the test was completely voluntary, explained how the
       test would be administered, and gathered some
       preliminary information from [Appellant].       [Appellant]
       again signed a form, which was in part a Miranda
       warning, and in part a description of the test. The voice
       stress examination was then conducted.

       Detective Burkey provided the results of the voice stress
       test to [Appellant] and explained which answers indicated
       low levels of stress, indicating truthfulness, and which
       answers indicated high levels of stress, indicating
       deception. While looking at the results of the test, and in
       particular at an answer to a question, “did you kill . . . [the
       victim]?” [Appellant] stated, “I’m fucked.”         Detective
       Burkey asked [Appellant] what he meant by that, and
       [Appellant] stated, “I did it.”

       Detective Burkey then immediately asked Officer Dupilka
       to come into the room and review the results. As he was
       doing so, [Appellant] again stated, “I’m fucked.”
       [Appellant] then began to cry, and lowered his head.
       Officer Dupilka than asked [Appellant] to help him
       understand what happened inside [the] apartment, and
       [Appellant] admitted to killing [the victim] after he got into
       an argument about a debt that he owed to [the victim].
       [Appellant] admitted that during the struggle, he wrapped
       an electrical cord around [the victim’s] neck and choked
       him to the point that he killed him.

       Recognizing that the focus of the investigation had now
       shifted, Officer Dupilka and Detective Kranitz then
       conducted a more in-depth interview of [Appellant]


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         regarding the death of [the victim].     That interview
         concluded at approximately midnight on the morning of
         January 24, 2008. [Appellant] agreed to participate in a
         videotaped interview. The videotaped interview began at
         12:20 a.m. on January 24, 2008, and concluded at 1:06
         a.m. that same date.

         [Appellant] was placed under arrest for homicide [and
         robbery,] and the officers immediately prepared a criminal
         complaint and affidavit for those charges, as well as the
         drug violations. Because the officers were forced to wait
         for a district justice to become available to conduct a
         preliminary arraignment, [Appellant] was not arraigned
         until approximately 3:30 a.m. on January 24, 2008. At no
         time during his interactions with the police did [Appellant]
         ever request counsel, ask to terminate the interview, or
         invoke his right to remain silent. [Appellant] did not
         complain of fatigue, and was provided with access to a
         restroom, food, breaks, drinks, and cigarettes during the
         interview process.

Trial Court Opinion, 3/30/09, at 2-6 (citations and footnotes omitted).

      By order entered March 30, 2009, the trial court denied Appellant’s

pre-trial motions.   Following a five-day trial, a jury convicted Appellant of

first-degree murder and all of the other charges. On September 29, 2009,

the trial court sentenced Appellant to life imprisonment for the murder

conviction, and an aggregate, concurrent term of five to twenty years of

imprisonment on the remaining convictions.

      Appellant filed a timely post-sentence motion in which he challenged

the weight of the evidence supporting his convictions.      By order entered

March 16, 2010, the trial court denied the motion. Appellant then filed an

appeal to this Court. In an unpublished memorandum filed on December 14,

2010, we affirmed Appellant’s judgment of sentence.      Commonwealth v.


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Baird, 23 A.3d 582 (Pa. Super. 2010).                   Our Supreme Court denied

Appellant’s petition for allowance of appeal on December 6, 2011.

Commonwealth v. Baird, 34 A.3d 824 (Pa. 2011).

        Appellant filed a pro se PCRA petition on January 4, 2013, and the

PCRA court appointed counsel to represent him.             On July 15, 2013, PCRA

counsel filed a motion to withdraw along with a “no-merit” letter pursuant to

Commonwealth            v.   Turner,       544   A.2d     927   (Pa.   1988),   and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

Thereafter, Appellant filed a pro se amended PCRA petition in which he

withdrew the claims raised in his initial petition, and raised new claims,

including allegations of PCRA counsel’s ineffectiveness. The PCRA court held

an evidentiary hearing with regard to all of Appellant’s claims on October 30,

2014.      By order entered December 14, 2014, the PCRA court denied

Appellant’s petitions, and permitted PCRA counsel to withdraw.           The PCRA

court appointed present counsel to represent Appellant during his direct

appeal.3



____________________________________________


3
   On March 13, 2015, the PCRA court noted that present counsel for
Appellant did not comply with its earlier order which required a Pa.R.A.P.
1925(b) Statement of Matters Complained of On Appeal. We need not
remand this appeal for the preparation of such a statement, see Pa.R.A.P.
1925(c)(3), because the PCRA court refers us to its opinion and order
denying post-conviction relief, and present counsel has filed a “no-merit”
letter.




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     In lieu of an advocate’s brief, present counsel filed a “Brief for in [sic]

Support of Petition to Withdraw as Counsel,” which resembles a brief filed

when counsel seeks to withdraw on direct appeal pursuant to Anders v.

California, 386 U.S. 738 (1967).      Anders imposes stricter requirements

than those imposed when counsel seeks to withdraw during the post-

conviction    process   pursuant    to      Turner/Finley,   supra.        See

Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.

2004).   Thus, we will assess counsel’s assertion that the issues Appellant

wishes to raise have no merit under a Turner/Finley analysis.

     This Court recently explained:

         The Turner/Finley decisions provide the manner for
         [PCRA counsel] to withdraw from representation. The
         holdings of those cases mandate an independent review of
         the record by competent counsel before a PCRA court or
         appellate court can authorize an attorney’s withdrawal.
         The necessary independent review requires counsel to file
         a “no-merit” letter detailing the nature and extent of
         [counsel’s] review and list each issue the petitioner wishes
         to have examined, explaining why those issues are
         meritless. The PCRA court or an appellate court if the no-
         merit letter is filed before it, see Turner, supra, then
         must conduct its own independent evaluation of the record
         and agree with counsel that the petition is without merit. .
         ..

         [T]his Court imposed additional requirements on counsel
         that closely track the procedure for withdrawing on direct
         appeal. . . . [C]ounsel is required to contemporaneously
         serve upon his [or her] client his [or her] no-merit letter
         and application to withdraw along with a statement that if
         the court granted counsel’s withdrawal request, the client
         may proceed pro se or with a privately retained attorney.
         ...



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Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation

omitted).

      Here, present counsel complied with the mandates of Turner and

Finley, as summarized in Reed, supra.           “Accordingly, we will proceed

without our independent review of the questions presented to determine if

counsel correctly concluded that the issues raised had no merit.” Reed, 107

A.3d at 141.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported   by   the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).      Within the brief he filed, present counsel first

discusses Appellant’s claim in his amended petition that his statements and

confession to police were the result of police intimidation and, therefore,

involuntary. Present counsel notes that Appellant’s claim fails for a number

of reasons. We agree.

      Initially, as recounted above, Appellant fully litigated the voluntariness

of his statements and confession by filing a suppression motion prior to trial.

The denial of this motion, insofar as it related to Appellant’s statements and

confession, was not raised on appeal. Thus, the claim is waived under the

PCRA. See 42 Pa.C.S.A. § 9544(b). In addition, Appellant did not present

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any evidence at the hearing held in this case to establish that trial counsel

was ineffective for failing to raise the denial of this portion of his suppression

motion on appeal. Indeed, given the trial court’s credibility determinations,

and its conclusion that “[t]here is absolutely no evidence to suggest that

[Appellant’s] confession was obtained through coercion, suggestion or

duress[,]” an appellate challenge would have been unsuccessful. Trial Court

Opinion, 3/30/09, at 18. Counsel cannot be deemed ineffective for failing to

pursue a meritless claim.    Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc).          Thus, Appellant’s claim regarding the

admissibility of his statements and confession lacks merit.

      In the second claim addressed by present counsel, Appellant asserts a

conspiracy existed between the trial court, the Latrobe Police Department,

and the district attorney’s office to permit the introduction of an “altered

document” and forgery at trial.     This allegation concerns the admission of

only a portion of the waiver rights form Detective Burkey presented to

Appellant prior to the voice stress examination. As the PCRA court stated at

the PCRA hearing:

         THE COURT: [Y]ou made a statement to Detective Burkey
         but [the jury] is not allowed to know that statement was
         made while you were engaging in a voice stress test or
         polygraph. They’re not allowed to know that. We were
         doing something that we had to do legally to not let the
         jury know. Frequently in trials or in hearings if there is
         information that the jury is not allowed to know we redact
         it, that is, cross it out or black it out so they don’t see
         certain things they’re not supposed to see. We do it



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         usually to protect the defendant’s rights. You don’t want
         the jury to know that you failed a polygraph test.

                                     ***

         THE COURT: . . . The rules are that the jury cannot know
         there was a voice stress or a polygraph test. This is not –
         that wasn’t anybody tampering with anything. You’re are
         saying you don’t like the fact that it was blacked out but
         that’s nobody was tampering. Everything was done on the
         record so you’re saying that your counsel did not see that.
         There was no issue there for your counsel to see. He knew
         the attorneys were working to show things appropriately to
         the jury.    [PCRA counsel] could see that from the
         transcript.

N.T., 10/30/14, at 8-9. Once again, Appellant failed to present any evidence

at the PCRA hearing to support his allegations.        Thus, his claim related to

any alleged conspiracy is devoid of merit.

      Present counsel also notes that in his amended petition Appellant

raised allegations of PCRA counsel’s ineffectiveness in failing to ascertain and

argue the above issues. As we have agreed with counsel’s assessment of

these claims, we further agree that Appellant’s claim relating to PCRA

counsel’s ineffectiveness is baseless.

      In sum, we have reviewed the record, including the notes of testimony

from the PCRA hearing, and agree with present counsel’s determination that

the claims Appellant wished to raise on appeal are devoid of merit.

Additionally, our independent review of the record reveals that Appellant’s

amended PCRA petition is meritless. Reed, supra. We therefore affirm the

PCRA court’s denial of Appellant’s amended petition for post-conviction

relief, and grant counsel’s application to withdraw.


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     Order affirmed. Application to Withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2016




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