J-S67012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NATHAN WINSTON BUNDY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 thirddegree 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 

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 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.
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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 
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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 onehalf 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. 

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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.
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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 

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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.
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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:
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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 
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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 

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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). 

 
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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 
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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.
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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.

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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:
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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, nonMirandized 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 
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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 

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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.
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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. 

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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”). 
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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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/19