J-S02040-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT J. MCBREARTY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1416 EDA 2017

Appeal from the PCRA Order April 4, 2017

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

No(s): CP-09-0001058-2010

BEFORE: BOWES, J., NICHOLS, J., and RANSOM*, J.

CONCURRING MEMORANDUM BY BOWES, J.: FILED JUNE 26, 2018

In this PCRA appeal, Robert J. McBrearty raises several ineffective 

assistance of counsel claims. I agree with my learned colleagues that we may 

deem these claims waived because they are underdeveloped and improperly 

pled. However, I find it preferable to decide the issues on their merits as 

Appellant’s core claim of trial counsel ineffectiveness is, despite those defects,

discernible. For that reason, I concur in the result reached by the Majority.

With respect to the ineffective assistance of trial counsel claims, I 

believe that trial counsel ably represented Appellant in pursuing a claim that 

his confession was obtained in violation of United States v. Miranda, 384 

U.S. 436 (1966), and therefore had a reasonable strategic basis for failing to 

pursue the alternative suppression basis discussed in the PCRA petition. 

Additionally, I find that Appellant has failed to plead and prove his claim of 

appellate counsel ineffectiveness. Critically, Appellant has not established
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that a proper presentation of the Miranda claim would have succeeded on 

direct appeal. My reasoning follows. 

A major factor in this case is our prior memorandum deeming waived

the sole appellate argument. Thus, I begin with a review of the facts, as set 

forth in that decision. 

Prior to the charges being filed in the present case, Appellant pled 

guilty to Driving Under the Influence in Montgomery County and 

had been under the supervision of [Parole Officer Glenn Sherman] 

since July of 2009. On December 21, 2009, Officer Sherman met 

with Appellant in the Adult Probation and Parole Office located in 

the Bucks County Courthouse in Doylestown, Pennsylvania. The 

meeting, which lasted approximately fifteen to twenty minutes, 

took place in a 10’x15’ conference room which had a table and 

chairs in the middle of the room, video conferencing equipment, 

and a telephone. When the meeting concluded, and after Officer 

Sherman scheduled their next appointment, he asked Appellant 

whether he would be willing to speak with Detective [Lance] 

Carlen of the Doylestown Borough Police Department. Appellant 

said that he would be willing to speak with Detective Carlen. After 

Appellant agreed, Officer Sherman allowed Detective Carlen to 

enter the conference room. 

Detective Carlen was in plain clothes and was not carrying his 

firearm at the time of the meeting. He sat at the end of the table 

in the seat closest to the door between Officer Sherman and 

Appellant. Throughout Detective Carlen’s two (2) hour interview 

of Appellant, the door to the conference room was open six inches 

to one foot, Appellant moved freely about the room, never asked 

to use the restroom, or to stop the interview. Officer Sherman 

remained in the room during the interview with the exception of a 

period of approximately fifteen to thirty minutes when he left to 

reschedule clients who he was supposed to see that day. Prior to 

commencing the interview, Detective Carlen told Appellant that he 

was not in nor was he going to be taken into custody, and that 

Appellant did not have to speak with him. Detective Carlen did not 

read the Miranda warnings to Appellant. Detective Carlen 

testified that Appellant did not ask for an attorney at any point 

during the interview. 
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When the interview began, Detective Carlen informed Appellant 

that his purpose was to question him about the recent fires in 

Doylestown. Initially, Appellant denied having any knowledge of 

the fires. It was only after Detective Carlen explained the nature 

and locations of the fires, noted that Appellant had been stopped 

by police on several occasions in connection with those fires, and 

presented evidence of his connection to them, that Appellant 

admitted that he knew about the fires and had been stopped and 

questioned by police investigators. In an effort to help Appellant 

conceptualize the timeline and locations of the fires, Detective 

Carlen drew a map indicating where certain fires had been set 

near the James Lorah house. Appellant admitted to Detective 

Carlen that he set the fire to the fence behind Finny’s Royal Grotto 

and to leaves at the James Lorah house; Appellant made pen 

marks on the map indicating where he had started the fires. 

Appellant denied involvement in the fires at Union Station and 

behind the Doylestown Fire Station. 

As the interview progressed, Detective Carlen wrote all of the 

locations and dates down on a piece of paper and asked Appellant 

if he would be able to confirm whether he did or did not start the 

fires. In confirmation that he’d started two of the fires, Appellant 

wrote “leaves between two buildings” next to the James Lorah 

house entry, and “fence” next to Finny’s Royal Grotto to mark 

where the fires began. He put an “X” and “no” next to the Union 

Station and Shewell Avenue locations to indicate that he did not 

start those fires. Detective Carlen went through thirteen (13) fires 

on the list, Appellant wrote “yes,” “no,” or “possible” next to each 

location and signed the document underneath the detective’s 

signature. Detective Carlen told Appellant that he could be 

prosecuted for each of the thirteen fires separately or as one 

offense on a “common scheme prosecution” and that anything he 

did on the day of the interview would help him in regards to the 

prosecution of the offense. Additionally, Detective Carlen told 

Appellant that it would be beneficial for him if he continued to be 

“forthcoming” with information regarding the fires. Appellant did 

not change his answers regarding the fires after this statement 

was made by Detective Carlen. When the interview concluded, 

Detective Carlen told Appellant that he was not going to arrest 

him until after the holidays when they would proceed with 

prosecution of the arsons. Appellant was permitted to leave the 

courthouse without any interference from Detective Carlen or 

Officer Sherman. 
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. . . Appellant testified that, although the detective told him that 

he was free to terminate the interview and leave at any time, he 

did not believe he was allowed to do so because he believed it 

would “violate [his] relationship with [his] probation officer.” On

cross-examination, Appellant admitted Officer Sherman did not 

tell him that he had to speak with Detective Carlen, would violate 

his probation if he did not talk to the detective, and did not tell 

him that he was not permitted to end the interview at any time. 

Appellant stated that he asked for an attorney during the 

interview. Appellant accused Officer Sherman and Detective 

Carlen of lying about whether he asked for an attorney, the reason 

for Officer Sherman leaving the conference room during the 

interview, and the length of the time that Officer Sherman was 

absent from the room. The testimony of Detective Carlen and that 

of Officer Sherman directly contradict these allegations. 

Commonwealth v. McBrearty, 1381 EDA 2011 (Pa.Super. 2012), at 1-4 

(quoting trial court opinion) (footnote and citations omitted, alterations in 

original).

The trial court denied Appellant’s motion to suppress his statements. 

Appellant proceeded to a non-jury trial, and was convicted of, inter alia, arson, 

and sentenced to four to eight years incarceration, followed by a consecutive 

period of seven years probation. He was also ordered to pay more than

$900,000 in restitution. Appellant did not file post-sentence motions. He filed 

a timely notice of appeal raising the following issue:

Did the trial court err by denying [Appellant’s] motion to suppress 

evidence, namely, [Appellant’s] incriminating statement insofar as 

the statement had been made without [Appellant] having been 

advised of his Miranda rights, had been made by reason of 

coercion by the police threatening to bring additional charges 

against him, and had been made by reason of inducement by the 

police promising not to bring additional charges against him?

Id. at 5 (quoting brief, emphasis and alterations supplied by Superior Court). 
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We deemed this claim waived. As it relates to these proceedings, we 

noted that the pre-trial motion to suppress was based on a purported violation 

of Miranda. However, while Appellant cited Miranda in his brief, our 

memorandum noted that his substantive argument did not rely on the absence 

of those warnings:

Appellant attacks the voluntariness of the admissions that he 

made to Detective Carlen. Appellant points out that he was not 

provided Miranda warnings prior to making the inculpatory 

statements. However, Appellant does not presently argue that his 

statements should be suppressed due to that omission. Rather, 

he contends that the statements were the product of 

coercion through the use of improper promises and 

inducement. Appellant asserts that Detective Carlen induced his 

confession by making both express and implied promises that the 

authorities would “go easier” on him if he confessed and that they 

would not file attempted homicide or manslaughter charges 

against him if he was “forthcoming.” Additionally, Appellant points 

out that he never was informed that he was free to leave or that 

he could terminate the interview at any time. Finally, Appellant 

notes that, during the interview, he never was offered a break, a 

drink, a snack, or a visit to the bathroom. Because of these 

promises and deprivations, Appellant argues that his inculpatory 

statements were involuntary, and therefore inadmissible.

. . . . 

[At the trial court level,] Appellant did not claim that he was 

improperly induced into confessing through promises for leniency 

and/or promises not to file particular charges. . . . Appellant 

informed the court that he would only advance the suppression 

issue contained in the motion, i.e., the Miranda issue. He did not 

attempt to amend the motion orally, or otherwise preserve the 

issues he now raises.

Id. at 6-7 (emphasis added, citation omitted). 

Before discussing the instant PCRA proceedings, I briefly review the 

differing legal theories involved in the pre-trial motion versus those pursued 
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on direct appeal. As noted in our prior decision, the motion to suppress was 

based on Miranda. In United States v. Patane, 542 U.S. 630 (2004), Justice

David Souter summarized Miranda as follows: 

Miranda rested on insight into the inherently coercive character 

of custodial interrogation and the inherently difficult exercise of 

assessing the voluntariness of any confession resulting from it. 

Unless the police give the prescribed warnings meant to counter 

the coercive atmosphere, a custodial confession is inadmissible, 

there being no need for the previous time-consuming and difficult 

enquiry into voluntariness.

Id. at 645 (Souter, J., dissenting). Thus, the failure to warn requires 

suppression of statements made during a custodial interrogation, regardless 

of whether the statement was actually involuntary within the meaning of the 

Fifth Amendment. See Oregon v. Elstad, 470 U.S. 298, 306–07 (1985)

(“The Fifth Amendment prohibits use by the prosecution in its case in chief 

only of compelled testimony. Failure to administer Miranda warnings creates 

a presumption of compulsion. Consequently, unwarned statements that are 

otherwise voluntary within the meaning of the Fifth Amendment must 

nevertheless be excluded from evidence under Miranda.”). 

However, even in cases where a defendant is not subjected to custodial 

interrogation, a confession may still be involuntary under the Fifth Amendment 

standard. See Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998) 

(“In this case, Nester was not in custody when he confessed and he concedes 

that the warnings described in [Miranda] were not required here.”). We 
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apply a totality of the circumstances test to determine if a noncustodial 

interrogation was involuntary: 

a noncustodial interrogation might possibly in some situations, by 

virtue of some special circumstances, result in an involuntary 

confession. When assessing voluntariness pursuant to the totality 

of the circumstances, a court should look at the following factors: 

the duration and means of the interrogation; the physical and 

psychological state of the accused; the conditions attendant to the 

detention; the attitude of the interrogator; and any and all other 

factors that could drain a person's ability to withstand suggestion 

and coercion.

Id. at 882 (quotation marks and citations omitted).

Trial counsel sought suppression based on the failure to issue Miranda 

warnings, and did not challenge the voluntariness of the confession based on 

the totality of the circumstances. Appellate counsel, on the other hand, 

argued that the confession was involuntary under the latter test. We deemed 

the claim waived, since the theory advanced on appeal was not advanced at 

the trial court level. 

Appellant subsequently filed a pro se petition seeking PCRA relief. 

Counsel was appointed and filed an amended petition. Appellant raised

several undeveloped claims and theories. The following passage is illustrative:

It is uncontested that there were multiple factual, legal, and 

constitutional grounds for suppressing the alleged confession 

where there was no forensic evidence implicating Appellant in any 

way, yet there was not litigation and appellate review of these 

matters because trial and appellate counsel raised diametrically 

opposed claims without preserving all constitutional claims for 

Appellant. It is likewise uncontested that trial counsel did not wish 

for his client to be able to exercise his constitutional right to testify 

and trial counsel specifically crafted as short a direct examination 

as possible preempting Appellant from testifying about the issues 
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he had previously and specifically mentioned to trial counsel. It is 

also uncontested that trial counsel did not conduct the 

investigation of the evidence and records requested by Appellant 

to support his diminished mental capacity, supporting his account 

of the coercive nature of the interrogation and impeaching any of 

the Commonwealth's witnesses. Taken together, it is clear that for 

the following reasons, trial counsel provided ineffective 

representation of counsel on issues that involved arguable merit 

without a shared or consulted reasonable basis that prejudiced 

Appellant by waiving suppression, trial, reconsideration, and 

appellate issues resulting in possibly a wrongful conviction and 

sentence of excessive period of probation whenever he ultimately 

is released.

The ineffective assistance of counsel individually and/or jointly 

occurred through the lack of investigation, case preparation,

consultation, advice with client, preparing, litigating and 

ultimately waiving suppression issues, as well as undermining, 

limiting and essentially preventing the exercise of his right to 

testify. This was further compounded by the lack of any 

meaningful advice or discussion regarding the differences between 

a waiver trial, stipulated waiver trial, and a jury trial, the ability 

to present defense evidence, preserving post–sentence rights, as 

well as failing to preserve, litigate, and address issues pre-trial, at 

trial, and on direct appeal. Simply put, the above errors by all 

counsel denied Appellant his constitutional protections, rights, and 

due process, thereby constituting ineffective assistance of counsel 

so significant that it undermined the truth-determining process so 

that no reliable adjudication of guilt or innocence could have taken 

place resulting in the possible conviction of an innocent man.

Appellant’s brief at 14-15. 

Confusingly, Appellant claims that these errors failed to “preserve 

Appellant’s substantive due process rights to present a meaningful defense[.]” 

Id. at 14. As is evident from the aforementioned arguments, Appellant 

elected to litigate several claims of ineffectiveness, which the Majority finds 

underdeveloped. I agree that Appellant’s presentation of these claims is

lacking, but I would address the gravamen of his petition: the claim that trial 
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counsel ineffectively failed to investigate and produce evidence that his 

statement was involuntary under the totality of the circumstances. We apply 

the following standard to such claims.

The law presumes counsel has rendered effective assistance. 

When asserting a claim of ineffective assistance of counsel, the 

petitioner is required to plead and prove: (1) the underlying claim 

has arguable merit; (2) counsel had no reasonable strategic basis 

for his action or inaction; and (3) but for the errors and omissions 

of counsel, there is a reasonable probability that the outcome of 

the proceedings would have been different.

Commonwealth v. Moriarty, 180 A.3d 1279, 1285 (Pa.Super. 2018)

(citation omitted).

I submit that we may dispose of the majority of Appellant’s claims by 

assessing whether the decision to pursue a Miranda suppression motion had 

a reasonable strategic basis.

1

 I would hold that there clearly was, based on 

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1 A consistent theme in Appellant’s brief is that counsel failed to properly 

consult with him regarding the wisdom of pursuing suppression based on 

Miranda. “[W]ithout consulting with Appellant, trial counsel withdrew half of 

the constitutional bas[e]s for said claims in advance of said hearing.” 

Appellant’s brief at 7. However:

[T]he decision to litigate, or not litigate, suppression motions is 

left to counsel in the exercise of his or her professional judgment. 

“[S]trategic choices made after thorough investigation of law and 

facts relevant to plausible options are virtually 

unchallengeable[.]” Strickland v. Washington, 466 U.S. 668, 

690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, where counsel 

fails to file a suppression motion, a prejudice analysis is 

unnecessary so long as there was a reasonable strategic basis for 

failing to file the motion.
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the factual circumstances surrounding Appellant’s probation meeting, the 

request to speak to Detective Carlen immediately following that meeting, and 

the fact that the probation officer was present for most of the interview. 

Furthermore, the PCRA evidentiary hearing demonstrates that trial counsel 

consciously chose not to pursue the unpreserved grounds. Trial counsel 

testified that he only litigated the motion to suppress based on Miranda: 

[THE COMMONWEALTH]: And why was that?

[Trial counsel]: Because I thought that that was the best motion 

to litigate. I thought there was a unique set of facts and 

circumstances that would lead a reasonable person to perhaps 

believe that [Appellant] was in custody during the time that that 

statement was taken. 

N.T. PCRA Hearing, 5/9/16, at 16. On cross-examination by PCRA counsel,

trial counsel explained his assessment of the merits of the motion:

____________________________________________

The upshot of these principles is that where a defendant alleges 

that counsel ineffectively failed to pursue a suppression motion, 

the inquiry is whether the failure to file the motion is itself 

objectively unreasonable, which requires a showing that the 

motion would be meritorious. See Commonwealth v. Melson, 

383 Pa.Super. 139,556 A.2d 836, 839 (1989) (“Where the 

challenge is to a failure to move for suppression of evidence, the 

defendant must establish that there was no reasonable basis for 

not pursuing the suppression claim and that if the evidence had 

been suppressed, there is a reasonable probability the verdict 

would have been more favorable.”).

Commonwealth v. Johnson, 179 A.3d 1153, 1160 (Pa.Super. 2018) 

(footnote omitted). see also Gonzalez v. United States, 553 U.S. 242, 249

(2008) (“Giving the attorney control of trial management matters is a practical 

necessity. The adversary process could not function effectively if every tactical 

decision required client approval.”) (quotation marks and citation omitted). 
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[Trial counsel]: Well, first of all the interview took place in the 

Bucks County Adult Probation Office. [Appellant] was brought in 

for his regular visit. And somehow the Doylestown Police 

Department found out about that and had made arrangements to 

be present at the probation office when [Appellant] met with Mr. 

Sherman.

As I recall the testimony, the sergeant was in another room across 

the hall, and once the interview was concluded by Mr. Sherman, 

[Appellant] was asked would he hang around so the police could 

talk to him.

What I found particularly coercive about that setting not only was 

where it took place, but Mr. Sherman remained in the interview 

the entire time but for what he testified to be about a five-minute 

break where he had to make a phone call. I think the detective 

sergeant said he may have been out of the interview a little longer 

than that. But for an overwhelming majority of the two-and-ahalf-hour interview, another factor that went to this coerciveness, 

his probation officer is sitting right next to him.

So having had a lot of experience with people on probation from 

both sides of the aisle, I don’t think people believe they have the 

right to leave because of the presence of their probation officer 

when he’s present, despite being told to do so.

And so, therefore, I did not think [Appellant], or a reasonable 

person in [Appellant]’s shoes, would believe that he had the right 

to leave. And I thought that that was a very coercive setting, and 

they did not, admittedly, advise him of his Miranda rights. So 

my argument was that he was in custody, and that the statement 

was involuntary. 

Id. at 36-38. 
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With respect to the various materials that Appellant asserts should have 

been introduced in support of his motion to suppress, trial counsel opined on 

cross-examination that those materials were irrelevant:

Q. You are aware now that [Appellant] had records at the Bucks 

County Correctional Facility, Council Rock School District, and 

Children’s Hospital of Philadelphia, correct?

A. Correct.

Q. Did you take any steps to obtain those documents before trial?

A. No.

. . . .

I don’t believe that what happened at Council Rock High School 

has any effect on what happened in this case. I believe it’s 

completely irrelevant.

Q. So if somebody received special education, training, and 

support for numerous years, you believe that’s completely 

irrelevant in your legal opinion?

A. Correct.

Q. You don’t believe that it would establish a history of ongoing 

need and support to understand the difference processing issues?

A. Maybe, but not in this case. 

Id. at 33-34. 

Appellant now attacks the failure to procure and present those kinds of 

materials as follows: 

Trial counsel admitted that one's longstanding mental 

health history could be relevant to issues such as the 

voluntariness of statement and to explain the Appellant's 

conduct, but nevertheless, counsel never asked nor sought readily 

available records regarding Appellant's mental health treatment, 
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eight years of special education, Bucks County Correctional 

Facility records, and Children's Hospital of Philadelphia records. 

Even though trial counsel had retained a mental health expert, he 

did not ask the expert regarding any issue regarding 

involuntariness. Counsel, rather boldly proclaimed, that he 

strongly believed the statement [w]as involuntary and he 

declined to ask the expert this issue because, "I don't need 

him [an expert] to tell me that." This failure to in any way 

investigate the foregoing records, undermined cross[-

]examination, prevented rehabilitation of Appellant's credibility, 

and denied the fact finders of evidence that would corroborate the 

Appellant's account, namely video from the Bucks County 

Courthouse, interview logs, parole papers, rules and regulations, 

or measuring/demonstrating the size of the room where the two 

and one-half (2 1/4) hour interrogation occurred. The records 

submitted as part of the record clearly establish processing and 

other issues that would only further support this claim that 

counsel seemed so strong he did not even need to ask his already 

retained expert. When one's life is at risk, evidence and experts 

cannot be ignored or disregarded, but it was in this case, and the 

records submitted show why an expert was warranted and helpful 

to the defense.

Appellant’s brief at 17-18 (emphases added).2

I do not find trial counsel’s conclusion to be a “bold proclamation,” as 

Appellant’s ineffectiveness argument ignores the distinction set forth supra

between involuntary due to the failure to issue Miranda warnings, and 

involuntary under the distinct totality of the circumstances standard. 

Counsel’s concession that, inter alia, mental health records “could be relevant” 

was obviously referring to the latter standard. Nester, supra at 882 (listing, 

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2 Appellant also faults trial counsel for failing to review these records before 

filing the motions. However, Appellant fails to discuss how the substance of 

those records would have made any difference whatsoever. In other words, 

Appellant appears to advance a “failure to prepare” theory of ineffectiveness 

without explaining how he was prejudiced by those failures. 
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under totality of circumstances test, “the physical and psychological state of 

the accused . . . and any and all other factors that could drain a person's 

ability to withstand suggestion and coercion”). Appellant, however, appears 

to believe that counsel somehow conceded that those records were relevant 

to the Miranda inquiry. Trial counsel correctly opined that those other factors 

were irrelevant if Appellant was in fact subject to custodial interrogation. 

Therefore, I would hold that Appellant has failed to establish that trial counsel 

lacked a reasonable strategic basis in presenting the Miranda claim to the 

exclusion of the alternative claim. “[W]e will conclude that counsel's chosen 

strategy lacked a reasonable basis only if the petitioner proves that the 

alternative strategy not selected offered a potential for success substantially 

greater than the course actually pursued.” Commonwealth v. Busanet, 54 

A.3d 35, 46 (Pa. 2012) (citation omitted). 

Puzzlingly, Appellant appears to believe that Miranda warnings were, 

in fact, required. It is not, of course, inconsistent to state that (1) Appellant 

was in custody and subjected to interrogation, therefore requiring Miranda

warnings, and (2) that his statement was involuntary, even though Miranda 

warnings were not given. However, as trial counsel recognized, there was 

simply no need to establish that the statement was actually involuntary if 

Miranda warnings were required. That is precisely the point of Miranda’s 
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prophylactic rule.3 If Appellant continues to believe that he was subject to 

custodial interrogation, then his continuing insistence that trial counsel was 

ineffective makes little sense.

Having established that trial counsel had a reasonable strategic basis 

for focusing on the Miranda issue, the remaining question would be whether 

appellate counsel was ineffective for failing to pursue that issue. However, 

Appellant has failed to properly plead and prove appellate counsel’s 

____________________________________________

3 Appellant also raises issues regarding the Sixth Amendment right to counsel: 

“Appellate counsel only raised the voluntariness of the statement, and then 

waiving any appellate review of the Fifth or Sixth Amendment violations.” 

Appellant’s brief at 16. Appellant fails to discuss the differences between 

these two Amendments. See McNeil v. Wisconsin, 501 U.S. 171, 176 

(1991) (discussing Sixth Amendment right to counsel versus right to counsel 

under Miranda; “Petitioner relies, however, upon a different ‘right to counsel,’

found not in the text of the Sixth Amendment, but in this Court's jurisprudence 

relating to [Miranda].”).

The source for this claim, it appears, is that Appellant testified at the 

suppression hearing that he had requested an attorney. As trial counsel made 

abundantly clear at the evidentiary hearing, he feared that Appellant’s 

testimony was not credible and urged Appellant not to testify, as the probation 

officer and the detective denied the assertion that Appellant requested an 

attorney. More significantly, trial counsel believed that any invocation of 

counsel was irrelevant since the Commonwealth conceded that Miranda 

warnings were not issued. According to the Commonwealth’s theory, 

Appellant was not in custody, was free to leave, and therefore not entitled to 

counsel. Appellant fails to explain why a preemptive request for counsel in a 

non-custodial interview must be honored. See Commonwealth v. Morgan, 

610 A.2d 1013, 1018 (Pa.Super. 1992) (police officer read Miranda rights to 

non-custodial suspect and suspect thereafter requested counsel, which was 

not honored; “it is error for a court to consider a confession presumptively 

coerced merely because a request for a lawyer is not honored where, as here, 

the suspect was not in custody at the time.”) (emphasis in original)
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ineffectiveness, as a stand-alone claim regarding that attorney’s failure to 

argue the correct legal theory to this Court on direct appeal. I would therefore

find that Appellant has waived that discrete claim. See Commonwealth v. 

Koehler, 36 A.3d 121, 142 n.19 (Pa. 2012) (“A claim of appellate counsel 

ineffectiveness for failing to raise a claim of trial counsel ineffectiveness is 

distinct from the instant stand-alone claim of appellate counsel ineffectiveness 

grounded in the manner in which appellate counsel litigated a claim on 

appeal.”).

Even if properly pled, I would find that Appellant failed to establish 

prejudice. The prejudice prong is not self-proving. Appellant is required to 

show that, had appellate counsel properly presented the Miranda argument 

on direct appeal, “a reasonable probability exists that the outcome of the 

appeal would have been different.” Commonwealth v. Thomas, 44 A.3d 

12, 17 (Pa. 2012). Functionally, that reduces to a question of whether this 

Court, on direct appeal, would have granted relief on the Miranda claim had 

counsel argued that issue. 

Appellant’s only argument in this respect is that his attorneys failed to 

cite Commonwealth v. Cooley, 118 A.3d 370 (Pa. 2015), and other cases 

for the proposition that his confession should have been suppressed. 

Appellant argues:

In Cooley, the court concluded that Cooley was questioned 

regarding new criminal charges, that there was custodial 

interrogation and the failure to issue Miranda warnings violated 

his Fifth Amendment rights. Under Cooley, not only would
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Appellant have been entitled to a suppression of the statement 

because it was so coercive, a legal and factual conclusion that 

would have been far easier to reach if trial counsel was not so 

ineffective, the court clearly indicated that the transition from 

typical parolee/parole officer conversations to one that translates 

to new criminal charges, at the very least required Miranda

warnings. Cooley, supra at 78. (Indicating that in comes [sic] 

circumstances someone subject to custodial interrogation is 

entitled to a self-executing privilege against self-incrimination.)

. . . Pennsylvania is neither the first nor the last jurisdiction to 

have concluded that custodia[l] interrogation by parole or 

probation officers about new crimes requires Miranda warnings. 

The view about whether Miranda rights should be self-executing 

was specifically commented on in the case of Minnesota v. 

Murphy, 465 U.S. 420 (1984), unlike the instant case, the 

defendant did not believe that he would face any consequences 

for walking out of the interview. However, when a defendant 

believes that there are consequences, the right to remain silent 

may be self-executed. Commonwealth v. Knoble, 42 A.3d 976, 

982 (Pa. 2012).

. . . . 

The foregoing case law clearly sets forth that the record, even as 

it now exists, constitutes a violation of Appellant's Miranda rights 

which were not fully and fairly litigated on initial suppression and 

trial stages due to the ineffectiveness of trial counsel. It further 

exemplifies how the additional testimony and evidence regarding 

the circumstances of the room, the position of the actors, physical 

and video evidence, and Appellant's mental state were all highly 

probative and could have only aided in the defense and litigation 

of these issues if counsel had provided effective assistance of 

counsel.

Appellant’s brief, at 21-23 (some citations omitted).

This quoted explanation serves as a proxy for Appellant’s argument that 

he was prejudiced. However, his argument largely places the blame on trial 

counsel—as opposed to appellate counsel—and is little more than citation to 
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cases that might have been used to support a properly-developed argument. 

Therefore, I agree with the Majority that Appellant has waived this claim.

I would add, however, that Cooley is not directly on point, and is readily 

distinguishable. Therein, Cooley’s parole agents received reliable information 

that Cooley possessed firearms and was selling drugs. One week after 

receiving this information, Cooley appeared for a scheduled parole meeting. 

Immediately upon arrival, Cooley was handcuffed and told that his home 

would be searched. He was transported to his home, still in handcuffs. 

Miranda warnings were not issued, and Cooley sought to suppress 

statements made during these events, which the trial court denied on the 

basis that Cooley was neither in custody nor interrogated. The Cooley Court 

concluded that, under the totality of the circumstances, “a reasonable parolee 

would not feel free to terminate the encounter and leave the parole office.” 

A detailed examination of Cooley is not necessary for present purposes. 

Suffice to say, this case does not involve the probation officer asking the 

questions, does not involve the use of physical restraints, and did not result 

in the authorities immediately confronting Appellant. Those facts alter the 

totality of the circumstances analysis applied in Cooley. Id. at 379 n.13 (“A

court views the totality of circumstance in each case; we accordingly limit our 

holding to the facts presented here and recognize the outcome might be 

different with factual variations.”). 
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Moreover, Appellant refers to the possibility that his rights were selfexecuting. That concept applies only if “the government in any way asserts 

that a probationer's claiming of the privilege would lead to probation 

revocation[.]” Knoble, supra at 982. Herein, Appellant was not put in the 

position where he had to choose between speaking to Detective Carlen, and 

refusing, thereby jeopardizing his probationary status. Thus, Appellant has 

failed to establish that a proper presentation of the Miranda claim would have 

resulted in relief on direct appeal.4

Next, Appellant asserts that trial counsel’s ineffectiveness continued 

after suppression, as “trial counsel elected to proceed by way of a stipulated 

waiver trial. The record reflects that Appellant did not realize that he had the 

choice and believed that this decision was up to the attorney[.]” Appellant’s 

brief at 24. The record reflects no such thing. Appellant cites to his own 

testimony at the PCRA hearing to support his argument. However, the 

transcript from the non-jury trial establishes that the trial court fully explained 

to Appellant that he had a right to a jury trial, and asked if he wished to waive 

that right. There is no support whatsoever for his claim that his trial attorney 

made the decision for him. 

____________________________________________

4 Additionally, Appellant does not address the fact that Cooley was issued in 

2015; his direct appeal was decided in 2012. Therefore, Appellant has failed 

to establish that he would have succeeded based on precedents existing at 

the time of his direct appeal. 
J-S02040-18

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Finally, Appellant’s remaining claim asserted that trial counsel failed to 

file a post-sentence motion for reconsideration of his sentence. I would affirm 

denial on substantive grounds. Appellant alleges that a motion to reconsider 

should have been filed because his sentence exceeded the aggravated range 

of the guidelines at one of the counts. Trial counsel fully explained why he 

did not file that motion:

Q. Did you have any recommendations for him regarding filing a 

motion to reconsider?

A. I recommended he not.

Q. Why is that?

A. Well, for a couple different reasons. First of all, while any time 

in the state penitentiary is a long time in my eyes, I still thought 

the sentence was a very fair sentence given the facts and 

circumstances of this case. I mean, a home was pretty much 

burnt down. The people were home at the time. They escaped. 

Their five pets barely escaped, three of which, as I remember now, 

had smoke inhalation. I thought that was extremely egregious. 

The number of fires during a [thirty-one] day period, that was an 

excellent sentence in my book, number one.

Number two, certainly in this case but in most cases I find motions 

to reconsider to be exercises in futility. I mean, the judge gave a 

very reasoned explanation and analysis of why he was going 

outside of the guidelines. His reasons were on the record. I 

thought them to be valid. So from a common sense standpoint 

I’m going to come back now or somebody is going to come back 

in nine or ten days and say, oh, by the way, we want you to 

reconsider? I didn’t think there was much value in the motion to 

reconsider.

And lastly, I made it clear to the family, I don’t do appellate work.

. . . . 

Q. Now, a couple things I want to clarify. You mentioned that the 

actual sentence in terms of looking at the guidelines for at least 

that one count was an aggravated range sentence or outside of 
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the aggravated range. How did you analyze that in terms of the 

overall nature of this case?

A. Well, clearly the judge could have given him – sentenced him 

on each count and made those sentences to run consecutive[ly], 

which would have been far worse than what [Appellant] received

. . . the judge made it clear that he was sentencing [Appellant] to 

a – I don’t remember whether it was an aggravated range or an 

outside-the-guidelines sentence but was not sentencing him on 

the other counts. I mean, listen, quite frankly, I left here very 

satisfied with that sentence.

N.T. PCRA Hearing, 5/9/16, at 27-29.

Therefore, trial counsel believed there was no arguable merit to the 

claim. Moreover, Appellant was not prejudiced by that failure as the PCRA 

judge, who sentenced Appellant, confirmed in his PCRA court opinion that he 

would not have revisited that sentence had the motion been filed. “In 

imposing a sentence in this matter . . . [t]his [c]ourt is satisfied that an 

appropriate sentence was imposed. . . .By failing to demonstrate that this 

[c]ourt would have granted a motion for reconsideration of sentence, PCRA 

counsel has failed to plead and prove that [Appellant] was prejudiced as a

result of his counsel's failure to file post-sentence motions.” PCRA Court 

Opinion, 7/20/17, at 13-14. 

For the foregoing reasons, I concur in the decision to affirm the order 

dismissing the petition.

Judge Nichols concurs in the result.