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[U] Commonwealth v. Ginnery

Superior Court of Pennsylvania

February 3, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
OWEN E. GINNERY, SR. Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order December 28, 2012 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000253-2009

BEFORE: FORD ELLIOTT, P.J.E., GANTMAN, J., and SHOGAN, J.

MEMORANDUM

GANTMAN, J.

Appellant, Owen E. Ginnery, Sr., appeals from the order entered in the Venango County Court of Common Pleas, which dismissed his first petition brought pursuant to the Post Conviction Relief Act ("PCRA").[1] We affirm.

In its opinion, the PCRA court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them .

Appellant raises the following issues for our review:

WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW OR ABUSED ITS DISCRETION IN DETERMINING THAT COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO FILE TO SUPPRESS THE EVIDENCE OBTAINED FROM THE UNLAWFUL ENTRY OF [APPELLANT'S CAMPER] WITHOUT A SEARCH WARRANT.
WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW OR ABUSED ITS DISCRETION IN DETERMINING THAT COUNSEL WAS NOT INEFFECTIVE FOR FAILING [TO PERFORM] A PRETRIAL INVESTIGATION BY INTERVIEWING [WAYNE L. HEPLER], VIEWING THE TRAILERS, ACQUIRING THE ADDRESS LISTED AT THE POST OFFICE, ACQUIR[ING] [APPELLANT'S] MEGAN['S] LAW FOLDER FROM THE STATE POLICE, AND SEEK[ING] DISCOVERY OF THE COMMONWEALTH'S WITNESSES.
WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW OR ABUSED ITS DISCRETION IN DETERMINING THAT COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO MOTION FOR A MISTRIAL WHEN THE ASSISTANT DISTRICT ATTORNEY SHOUTED THAT [APPELLANT] WAS A RAPIST BEFORE THE TRIAL BEGAN AND IN FRONT [OF] THE WITNESSES.
WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW OR ABUSED ITS DISCRETION IN DETERMINING THAT COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO USING THE GUIDELINES FOR THE TIME TO REPORT UNDER MEGAN['S] LAW III WHEN MEGAN['S] LAW II WAS THE APPROPRIATE STATUTE. SEE COMMONWEALTH V. BENNER, 853 A.2D. 1068 (PA.SUPER. 2004).
WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW OR ABUSED ITS DISCRETION IN DETERMINING THAT COUNSEL WAS NOT INEFFECTIVE FOR FAILING DURING TRIAL, TO CROSS [EXAMINE] WITNESSES ON THEIR BIAS, [AND TO OBJECT] TO THE PHOTOGRAPHS INTRODUCED DURING TRIAL THAT WERE NOT TURNED OVER DURING DISCOVERY[ .]

(Appellant's Brief at 5-6).

Our standard of review for the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings; however, we give no deference to the court's legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). "Traditionally, issues of credibility are within the sole domain of the trier of fact [ because] it is the trier of fact who had the opportunity to personally observe the demeanor of the witnesses." Commonwealth v. Abu-Jamal, 553 Pa. 485, 527, 720 A.2d 79, 99 (1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). "[ A] s with any other credibility determination, where the record supports the PCRA court's credibility determinations, those determinations are binding" on this Court. Id.

After a thorough review of the record, Appellant's brief, the applicable law, and the well-reasoned opinion of the Honorable Oliver J. Lobaugh, we conclude Appellant's issues merit no relief. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented. (See PCRA Court Opinion, dated December 28, 2012, at 8-15) (finding: (1) officers had strong probable cause that Appellant failed to register address change when Tina Trauterman informed officers that Megan's Law offender was living on property, had not changed his address, and had been living there for over week; it was reasonable for officer to open camper door to attempt to apprehend Appellant before he fled because officer heard someone quickly move toward rear of camper; it was reasonable for officer to request Appellant to approach officer so he could determine that Appellant was unarmed; once officer was inside camper, other items seized were in plain view; exigent circumstances and probable cause were present to excuse search warrant requirement; level of intrusion into Appellant's expectation of privacy was minimal; police conducted search soon after crime was reported and with reasonable belief that Appellant might try to flee; Appellant's counsel testified that she explained exigent circumstances to Appellant, and he did not disagree with counsel's decision not to file suppression motion; Appellant's underlying claim lacks arguable merit; (2) Appellant was not prejudiced for failing to have his Megan's Law folder because he testified he knew he was subject to Megan's Law registration requirement; police officers previously examined Appellant's trailer at saw m ill and, therefore, having counsel examine trailer at later date would not have contradicted officer's testimony that trailer contained cob webs, dust and no furnishings; counsel's obtaining layout of camper would not have contradicted officer's testimony because officer admitted entering camper before seeing Appellant stuffing items into knapsack; Appellant's claim lacks arguable merit because there was reasonable basis for counsel's actions based on defense strategy; (3) counsel testified that prosecutor's comments had no effect on proceedings because witnesses had already been sequestered and, therefore, only people present were counsel, Appellant, prosecutor and arresting officer; prosecutor's comments resulted in no prejudice to Appellant because they were made outside presence of any defense or Commonwealth witnesses other than arresting officer and could not have swayed witnesses' testimony; counsel had no grounds upon which to motional for mistrial; Appellant's underlying claim lacks arguable merit; (4) evidence at Appellant's trial indicated he had been living in camper longer than ten days and had failed to report address change; counsel had reasonable basis for failing to object to Commonwealth's use of Megan's Law III "48-hour" guidelines because defense strategy was that Appellant had just moved into camper on 3/ 16/ 09, and did not have adequate time to register address change before he was arrested on same day; whether Appellant was subject to "10-day" or "48-hour" requirement did not matter; thus, counsel was not ineffective; (5) counsel testified that photographs were not objectionable because they showed only location of Trauterman's property on which Appellant had camper; counsel testified she questioned Commonwealth's surprise witnesses about whether they actually knew Appellant; counsel established Samantha Mays knew Appellant only by sight; even if counsel's questioning failed to establish bias, Appellant was not unduly prejudiced; counsel was not ineffective on this basis). The record supports the PCRA court's decision; therefore, we see no reason to disturb it. Accordingly, we affirm on the basis of the PCRA court's opinion.

Order affirmed.

Judgment Entered.

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