J-S73042-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERIC WRIGHT, :
:
Appellant : No. 1067 MDA 2014
Appeal from the PCRA Order entered on June 11, 2014
in the Court of Common Pleas of Berks County,
Criminal Division, No. CP-06-CR-0002925-2009
BEFORE: BOWES, WECHT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 22, 2014
Eric Wright (“Wright”), pro se, appeals the Order dismissing his
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
The PCRA court set forth the relevant procedural history in its Opinion,
which we also adopt for purposes of this appeal. See PCRA Court Opinion,
7/29/14, at 1-2.2
On appeal, Wright raises the following issues for our review:
1. Did the PCRA court abuse its discretion when it failed to
reason that [Wright’s trial] counsel [Kevin Feeney, Esquire
(“Attorney Feeney”),] erred when [he] did not seek
1
See 42 Pa.C.S.A. §§ 9541-9546.
2
Additionally, this Court set forth a more thorough discussion of the factual
and procedural history underlying this appeal in its Memorandum. See
Commonwealth v. Wright, 34 A.3d 239 (Pa. Super. 2011) (unpublished
memorandum at 2-9).
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suppression on the grounds that the law was improperly
applied to the facts in this case, and that[,] more specifically,
the correct application of the law would have rendered the
entry into [Wright’s] home unlawful?
2. Did the PCRA court abuse its discretion when it reasoned that
[Wright’s] claim that the law was improperly applied to the
facts (regarding the entry of the home) was previously
litigated?
3. Did the PCRA court abuse its discretion when it failed to
reason that [Attorney Feeney] erred in failing to seek
suppression on the grounds that entry into [Wright’s] home
was a direct result of unlawful police conduct (an illegal arrest
and seizure) and, therefore, unconstitutional?
Brief for Appellant at 4.
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA court’s
ruling if it is supported by evidence of record and is free of legal
error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
As Wright’s first two claims are related, we will address them together.
Wright contends that Pennsylvania courts have not addressed the role that
anonymous tips play in establishing “reasonable belief” regarding a fugitive’s
residence. Brief for Appellant at 9. Wright cites to federal case law on the
issue, and claims that under federal law, substantial evidence is needed to
establish “reasonable belief” regarding a fugitive’s residence. Id. at 9-10.
Wright asserts that (1) the anonymous tipster was never identified; and (2)
there is no evidence that the task force made any effort to verify that the
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address given by the anonymous tipster was in any way connected with the
person named in the warrant, Jerral Spencer (“Spencer”). Id. at 10. Wright
asserts that a determination was made in his prior appeal that Attorney
Feeney was ineffective for failing to raise or preserve the issue of whether
the anonymous tip was corroborated when agents saw Spencer inside of
Wright’s home.3 Id. Wright claims that, without a reasonable belief that
Spencer was a resident of Wright’s home, “the Court” should have applied
Steagald v. United States, 451 U.S. 204 (1981), rather than applying
Payton v. New York, 445 U.S. 573 (1980). Brief for Appellant at 11.
Wright asserts that proper application of controlling case law would have
rendered the entry into his home unlawful, because it was without consent,
exigent circumstances or a search warrant. Id. Wright asserts that, had
Attorney Feeney raised the issue at the suppression hearing or properly
preserved it before during or after trial, all evidence recovered after the
unlawful entry would have been suppressed. Id.
3
Wright misconstrues our holding in his direct appeal. We concluded then,
and again conclude herein, that despite Wright’s attempts to characterize his
claim as an improper application of the law, his claim is, in fact, that the trial
court made an improper factual determination that Agent Switek viewed
Spencer inside Wright’s apartment from a lawful vantage point. See
Wright, 34 A.3d 239 (unpublished memorandum at 17) (applying Payton
based on the trial court’s factual determination). We noted in Wright’s direct
appeal that, because he had not challenged the trial court’s factual
determination, it was waived on appeal. See id. We further noted that,
even if this claim had been properly preserved, it lacked merit because the
trial court’s factual determination was supported by the record. See id. at
17-19.
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Additionally, Wright contends that the PCRA court erred by concluding
that this issue was previously addressed by this Court in Wright’s direct
appeal. Id. Wright contends that his prior appeal raised the question of
whether Parole Agent Jan Switek (“Agent Switek”) had observed Spencer
from a lawful vantage point, and has nothing to do with his current claim of
ineffective assistance “based on counsel’s failure to attempt to compel the
Court to properly apply the holding in Steagald as the controlling case.” Id.
at 11-12.
Although Wright does not indicate in his appellate brief which “court”
applied the wrong case law, our review of the record indicates that, when
the trial court denied Wright’s Omnibus Pretrial Motion, Amended Omnibus
Pretrial Motion and his Motion for Post-Trial Relief, it did not discuss or apply
either Payton or Steagald. However, in Wright’s direct appeal, a panel of
this Court thoroughly discussed the holdings in Steagald and Payton,
before concluding that Payton applied to the factual findings made by the
trial court. See Wright, 34 A.3d 239 (unpublished memorandum at 12-20).
The PCRA is not a forum to raise claims that have already been fully
litigated. See 42 Pa.C.S.A. § 9544(a)(2). Insofar as Wright claims the trial
court erred in making its factual determination that Agent Switek observed
Spencer from a lawful vantage point, thereby necessitating the application of
Payton rather than Steagald, this Court, on direct appeal, thoroughly
addressed this claim and found it to be without merit. See Wright, 34 A.3d
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239 (unpublished memorandum at 12-20). Because this claim has been
fully litigated, it is not cognizable under the PCRA. See 42 Pa.C.S.A.
§ 9544(a)(2).
Moreover, Attorney Feeney cannot be deemed to be ineffective. To
succeed on an ineffectiveness claim, appellant must demonstrate by the
preponderance of the evidence that
(1) [the] underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and (3) but
for counsel’s ineffectiveness, there is a reasonable probability
that the outcome of the proceedings would have been different.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy
any prong of the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
Our review of the record indicates that Attorney Feeney raised this
issue before and after trial. See Wright, 34 A.3d 239 (Pa. Super. 2011)
(unpublished memorandum at 7, 9). Thus, he cannot be deemed ineffective
for failing to do what the record reflects he, in fact, did. Finally, even if
Attorney Feeney had not raised this issue before the trial court, he could not
be deemed ineffective for failing to raise an issue that this Court has already
concluded lacks merit. See Commonwealth v. Tilley, 595 A.2d 575, 587
(Pa. 1991) (stating that “counsel can never be found ineffective for having
elected not to raise a meritless claim.”). Accordingly, we conclude that
Wright’s first two claims lack merit.
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Wright’s third issue was not raised in his Concise Statement of Errors
Complained of on Appeal, or in his Amended Concise Statement of Errors
Complained of on Appeal. Therefore, he failed to preserve this issue for our
review. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)
(stating that if an appellant is directed to file a concise statement of matters
to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised
in that statement are waived).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2014
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:;1;
," COMMONWEALTH OF PENNSYLVANIA
PENNSYLV MIA COl;RT OF COMMON PLEAS
IN THE COURT
OF BERKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
v.
No. CP-06-CR-2925-2009
CP-06-CR-292S-2009
(2 ERIC D. WRIGHT, Superior Court No. 1067 MDA 2014
i,lj
"
"
Appellant LUDGATE, SJ.S.J.
P"·
,., Robinson, 82 A.3d 998, 1005 (Pa.2013)(citation omitted).
Robinson.
.
.'"
Appellant's initial claim failed because, first, it has been previously litigated and, thus, he is
::,'. not eligible for relief. 42 Pa.C.S.A. §9543(a)(3). The PCRA provides that to be entitled to
relief, a petitioner must establish, by a preponderance of the evidence, that his conviction or
sentence resulted from one or more of the enumerated
sentencc cnumerated errors in Section 9543(a)(2), and his
claims have not been previously litigated or waived. 42 Pa.C.S. §9543(a)(2). An issue is
previously litigated if "the highest appellate court in which [the appellanfl
appellant] could have had review
as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. §9S44(a)(2);
§9544(a)(2); Wright,
81 A.3d 767, 782 (Pa.2013).
supra, 1781 MDA 2010, at 10-21; Commonwealth v. Weiss, Sl CPa.20B).
The Superior Court addressed the issue of the anonymous tip and found that there was sufficient
sufficicnt
evidence for the court to find that Supervisor Switek
S\vitek observed Mr. Spencer from a lawful
vantage point. So, this issue was previously litigated and the
thc Superior Court has ruled on the
of the issue. Wright, supra, 1781 MDA 2010, at 10-21. :-Jeither
merits orthe Neither trial counselor
counsel or PCRA
counsel can be deemed ineffective for failure to raise a meritless claim.
Further, Appellant cannot merely reframe a suppression issue to try to get around this hurdle,
attempting to
which he is now attcmpting to do by reframing it from another angle and claiming ineffective
assistance of counsel for not challenging the court's application of the law to the facts.
Commonwealth v. Faulkner, 735 A.2d 67, 701 (Pa.1999); Commonwealth v. Laird, 726
A.2d 346, 359 (Pa.1999). trier of fact in this bench trial and, as noted
The undersigned was the tricr
the Superior Court, the law was properly applied to the facts as they were found by the court
by thc
because it found support
suppon in the rccord
record that "Supervisor Switek observed Mr. Spencer from a
lawful vantage
vantage point." Wright,
W'right, supra, 1781 -:vIDA
MDA 2010, at 16. As the anonymous tip was
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sufficiently corroborated, entry into the apartment was proper under the law. Commonwealth v.
Jackson, 698 A.2d
A,2d 571, 575 (Pa. 1997) citing Commonwealth v. Hawkins, 692 A.2d 1068,
1070-1071 (Pa. 1997).
'U'
"
As for Appellant's other claims of ineffectiveness of trial and PCRA counsel, counsel cannot
be held ineffective for failing to perform a futile act or raising a meritless claim.
Commonwealth v. Tilley, 595 A.2d 575 (Pa.1991). Trial counsel did file an Omnibus PreTrial
Motion for suppression. Once the court ruled on the motion, the suppression issue had been
decided and it could not again be raised during the trial. Trial counsel also filed a Post Sentence
Motion, preserving the suppression claim for the direct appeal. The court's actions on the
suppression issue were fully reviewed by the Superior Court on the merits and, thus, were
already litigated. PCRA counsel cannot be held ineffective for informing the Court through a
"No Merit" letter that this issue lacked merit, because it did not have merit. This fact was
determined by the highest court in which Appellant sought review.
. For the foregoing reasons, we respectfully request that the Superior Court affirm the Order of
June 11,2014.
11. 2014.
By the Court,
6
Com. v. Wright, E.
Combined Opinion