Opinion

Com. v. Bishop, S.

Court
Superior Court of Pennsylvania
Filed
Apr 20, 2023
Status
Unpublished
On the bench
Nichols, J.
Cited by
0 cases
Authority
More cited than 23.1%

The opinion

J-S43042-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

SCOTT BISHOP :

:

Appellant : No. 2450 EDA 2021

Appeal from the PCRA Order Entered October 29, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0003894-2015

BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED APRIL 20, 2023

Scott Bishop appeals from the order denying his timely first petition for

relief pursuant to the Post Conviction Relief Act (PCRA).1 Appellant claims that

both trial counsel and direct appeal counsel were ineffective and argues that

the PCRA court erred in denying Appellant’s petition without a hearing. After

review, we reverse the PCRA court’s order and remand for further

proceedings.

The PCRA court set forth the following factual and procedural history:

On March 28, 2015, Parole Agent Brandon Smith made an

unannounced visit to Appellant at his apartment, where he had

just moved the prior month. After chatting briefly, Smith informed

Appellant that he was due for a drug screening test pursuant to

his parole agreement; Appellant complied. A urine test was then

administered, which came back positive for methamphetamines.

Because this was a violation of the terms of Appellant’s parole, the

Agent handcuffed Appellant and placed him into custody while he

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1 42 Pa.C.S. §§ 9541-9546.

J-S43042-22

phoned his supervisor for approval to conduct a search of

Appellant’s property for contraband in light of the positive drug

test.

Once he had obtained approval to search the apartment, Agent

Smith asked Appellant whether he had anything in the home that

Smith should know about, to which Appellant replied that he had

a gun. When prompted, Appellant then told the Agent that the

gun was in the hallway closet. In the closet, Smith detected the

smell of marijuana and observed a black trash bag, inside of which

he found a revolver, some spent shell casings, two electronic

scales, packaging materials and marijuana. In addition to the

marijuana in the closet, parole agents at the scene then recovered

marijuana from Appellant’s bedroom.

Agent Smith called for support from Parole Agent Eric Brown.

Agent Brown arrived and secured the residence. Once inside, he

observed keys on a dresser in Appellant’s bedroom. Brown asked

Appellant where his car was, and Appellant responded that it was

“on the corner.” The vehicle was located; it was registered to

Appellant. While searching Appellant’s vehicle, Agent Brown

recovered bullets in the center console that matched the guns and

bullets which Agent Smith had recovered from Appellant’s closet.

Appellant was charged with prohibited possession of a firearm in

violation of the Uniform Firearms Act, 18 Pa.C.S. § 6105;

possession of marijuana, [35 P.S.] § 780-113(a)(32). On

November 19 and November 25, 2015, Appellant appeared before

the Honorable Daniel J. Anders to litigate his motion to suppress

statements and physical evidence. Judge Anders granted

suppression of Appellant’s statement to Parole Agent Brandon

Smith as to the location of the revolver but denied the suppression

of Appellant’s statement as to the location of his car and denied

suppression of all physical evidence recovered from both the

apartment and the car.

On January 28, 2016, Appellant appeared before [the trial court]

for a waiver trial and was found guilty on all counts. On April 15,

2016, [the trial court] sentenced Appellant to three to eight years

of incarceration, followed by one year of probation. Appellant

timely appealed to the Superior Court, which affirmed Appellant’s

judgment of sentence in an unpublished [memorandum] on June

18, 2018. Commonwealth v. Bishop, 1193 EDA 2016, 2018 WL

3015333 (Pa. Super. filed 2018) (unpublished mem.). The

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Pennsylvania Supreme Court granted Appellant’s petition for

allowance of appeal to address the scope of protection against

self-incrimination offered by the Pennsylvania Constitution

relative to that of the United States Constitution.

Commonwealth v. Bishop, 196 A.3d 129 (Pa. 2018) (per

curiam). In September of 2019, the Supreme Court affirmed the

Superior Court’s order in a 6-1 decision, declining to directly

address the question after determining that it had not been

properly preserved in the courts below. Commonwealth v.

Bishop, 217 A.3d 833 (Pa. 2019).

Appellant timely filed a pro se PCRA petition on June 6, 2020.

Thereafter, the PCRA [c]ourt appointed counsel, who filed an

amended petition on January 22, 2021. After receiving briefs from

the Commonwealth and Appellant, the [PCRA court] gave notice

of its intent to dismiss Appellant’s petition pursuant to

Pa.R.Crim.P. 907, and it dismissed the petition without a hearing

on October 29, 2021.

PCRA Ct. Op., 5/26/22, at 1-3 (citations to the record omitted, formatting

altered). Appellant filed a timely appeal. Both the PCRA court and Appellant

complied with Pa.R.A.P. 1925.

Appellant raises the following issues for our review, which we have

reordered as follows:

1. Whether the PCRA court erred by failing to grant an evidentiary

hearing[?]

2. Whether the PCRA court erred by dismissing the PCRA petition

when clear and convincing evidence was presented to establish

that trial counsel was ineffective for failing at the suppression

hearing to distinguish between the protections provided by

Article I, Section 8 of the Pennsylvania Constitution; failing to

object to the Commonwealth’s non-disclosure of Brady[2]

material; and failing to protect [Appellant’s] constitutional

rights pursuant to the Confrontation Clause[?]

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2 Brady v. Maryland, 373 U.S. 83 (1963).

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J-S43042-22

3. Whether the PCRA court erred by dismissing the PCRA petition

when clear and convincing evidence was presented to establish

that appellate counsel was ineffective for failing to raise the

Article I, Section 8 claim on appeal, leading to a determination

that the claim was waived[?]

4. Whether the PCRA court erred by dismissing the PCRA petition

when clear and convincing evidence was presented to establish

that Appellant’s constitutional rights were violated by trial and

appellate counsel’s deficient performances, the

Commonwealth’s non-disclosure of Brady material, and

unreasonable search and seizure[?]

Appellant’s Brief at 9 (formatting altered).

In his first issue, Appellant contends that the PCRA court erred when it

dismissed Appellant’s PCRA petition without first holding an evidentiary

hearing. Appellant claims that he “raised significant claims of trial and

appellate counsels’ ineffectiveness and violations of his constitutional

rights[,]” and Appellant further describes those claims as “legitimate, based

on fact and supported by legal precedent.” Appellant’s Brief at 22. As noted

by the PCRA court, an evidentiary hearing in this matter would have revolved

around the question of “whether deeper exploration of the field [drug] test

might have led to its suppression and consequently the suppression of the

statements and the contraband, which in this case would have made it

virtually impossible for the Commonwealth to convict Appellant.” PCRA Ct.

Op. at 8.

In its Rule 1925(a) opinion, the PCRA court agrees with Appellant and

concedes that it erred when it failed to hold an evidentiary hearing.

Specifically, the PCRA court notes that there are genuine issues of material

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fact that, should they be resolved in Appellant’s favor, may entitle him to

relief. Id. at 8. Accordingly, the PCRA court requests that its order be

reversed and that this case be remanded with instructions to hold an

evidentiary hearing. Id.

Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citation omitted). “[W]e

apply a de novo standard of review to the PCRA court’s legal determinations.”

Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014) (citation

omitted).

As stated previously, Appellant claims that the PCRA court erred when

it failed to hold an evidentiary hearing before denying his PCRA petition. The

decision of whether to hold a PCRA evidentiary hearing is an exercise of

discretion on the part of the PCRA court, and we review for an abuse of that

discretion. Commonwealth v. Maddrey, 205 A.3d 323, 327 (Pa. Super.

2019).

[T]he right to an evidentiary hearing on a post-conviction petition

is not absolute. It is within the PCRA court’s discretion to decline

to hold a hearing if the petitioner’s claim is patently frivolous and

has no support either in the record or other evidence. It is the

responsibility of the reviewing court on appeal to examine each

issue raised in the PCRA petition in light of the record certified

before it in order to determine if the PCRA court erred in its

determination that there were no genuine issues of material fact

in controversy and in denying relief without conducting an

evidentiary hearing.

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* * *

Generally, if there are factual issues to be resolved, the PCRA

court should hold an evidentiary hearing.

Commonwealth v. Grayson, 212 A.3d 1047, 1054-55 (Pa. Super. 2019)

(citations omitted and formatting altered). This Court has cautioned,

however, that, “an evidentiary hearing is not meant to function as a fishing

expedition for any possible evidence that may support some speculative

claim.” Commonwealth v. Grove, 170 A.3d 1127, 1149 (Pa. Super. 2017).

In the instant case, the determinative issue before us is whether

Appellant’s claim that a challenge to and information concerning the drug test

administered by parole agents “might have led to its suppression and

consequently the suppression of the statements and the contraband, which in

this case would have made it virtually impossible for the Commonwealth to

convict Appellant.” PCRA Ct. Op. at 8. Indeed, Appellant argues that

trial counsel was obligated to insist that the [parole] agent provide

corroborating evidence [as to the positive urine test.] At the very

least, it was incumbent upon trial counsel to inquire of the witness

about the lack of documentation for a positive field test. Although

the field test may not have generated a corresponding written

report, the agent could have provided photographic evidence of

the field test results. Counsel’s omission was not reasonably

designed to advance the interests of [Appellant]. The lack of

documentation for the positive field test undermined the

credibility of the parole agent, yet trial counsel failed to raise this

vital issue during the suppression hearing.

Appellant’s Brief at 15-16.

The PCRA court further noted:

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It may be that no written documentation or photographs exist,

that trying to impeach Agent Smith about it would not have

changed the outcome, and that even if it would have, trial counsel

had latitude to pursue a different strategy. But these are genuine

issues of material fact that, if resolved in Appellant’s favor, could

entitle him to a new proceeding or other relief, be it because there

is exculpatory evidence in the form of favorable written

documentation or photographs or because trial counsel’s strategy

not to impeach the Agent’s credibility was deficient, either of

which could have led to a different outcome.

PCRA Ct. Op. at 8.

On this record, we agree with the PCRA court that Appellant’s challenge

rises to the level of a genuine issue of material fact, as resolution in Appellant’s

favor could entitle him to relief. See Grayson, 212 A.3d at 1054-55.

Accordingly, we reverse the PCRA court’s order and remand this case for the

PCRA court to hold an evidentiary hearing on Appellant’s PCRA petition.3

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/20/2023

____________________________________________

3 In light of our conclusion that the PCRA court erred in denying Appellant’s

petition without a hearing, we do not reach the merits of Appellant’s remaining

issues, as they all relate to whether the results of the field drug test provided

the parole agents with reasonable suspicion to conduct a warrantless search

of Appellant’s residence.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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