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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALLEN KELLY
Appellant No. 871 MDA 2013
Appeal from the PCRA Order April 17, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001708-2008
BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 24, 2015
Allen Kelly appeals from the order entered in the Court of Common
Pleas of York County, that denied, after a hearing, his first, timely request
for relief, filed pursuant to the Pennsylvania Post Conviction Relief Act
(PCRA), 42 Pa.C.S. § 9741 et seq. On December 11, 2008, Kelly pleaded
guilty to driving under the influence — highest rate of alcohol (third offense),
and the trial court sentenced him to a term of imprisonment of one to five
years.1 The charges arose after Kelly was stopped for a motor vehicle code
violation — making a right turn on a red light.2 The sole issue raised in this
appeal is Kelly’s claim that prior counsel were ineffective in failing to file a
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1
See 75 Pa.C.S. § 3802(c).
2
See 75 Pa.C.S. § 3112(a)(3)(i).
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suppression motion on his behalf “based upon the incorrect information
contained in the Criminal Complaint and Affidavit of Probable Cause and the
issues surrounding the Officer’s honesty and truthfulness[.]” Kelly’s Brief at
4. For the following reasons, we affirm.
The history of this case is discussed in this Court’s opinion filed in
connection with Kelly’s direct appeal. Commonwealth v. Kelly, 5 A.3d 370
(Pa. Super. 2010), appeal denied, 32 A.3d 1276 (Pa. 2011).3
The PCRA court explains the basis of the present appeal as follows:
[Kelly] had difficulty with several Attorneys while pending trial.
He elected to proceed pro se and entered a plea based on a
plea agreement.
At the recent PCRA hearing [Kelly] contend[ed] that his
Attorney[s] should have filed a suppression motion and it was
the Attorney[s’] failure to do so that cause[d] his
disagreements with them.
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3
Generally, a PCRA petition, including second and subsequent petitions,
must be filed within one year of the date the judgment of sentence becomes
final. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence becomes final “at
the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.” 42 Pa.C.S. §
9545(b)(3).
The Pennsylvania Supreme Court denied Kelly’s petition for allowance
of appeal on November 1, 2011. Thereafter, Kelly’s judgment became final
on January 30, 2012, at the end of the 90-day period for filing a petition for
writ of certiorari in the United States Supreme Court. As Kelly filed the
present PCRA petition on December 20, 2012, the petition is timely.
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[Kelly] has filed a 1925(b) statement that the motion to
suppress would have had merit, and that there was no
legitimate trial strategy for not filing a suppression motion.
Each of [Kelly’s] prior attorneys testified that they did not file a
suppression motion because they deemed it to be without merit.
PCRA Opinion, 6/20/2013, at 1.
At the outset, we state our standard of review:
Our standard of review of a PCRA court’s denial of a
petition for postconviction relief is well-settled: We must
examine whether the record supports the PCRA court's
determination, and whether the PCRA court’s
determination is free of legal error. The PCRA court's
findings will not be disturbed unless there is no support
for the findings in the certified record.
Further, considering just the specific claim appellant has raised
in this appeal, a PCRA petitioner will be granted relief only when
he proves, by a preponderance of the evidence, that his
conviction or sentence resulted from the “[i]neffective assistance
of counsel which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42
Pa.C.S.A. § 9543(a)(2)(ii). As our supreme court has stated:
It is well-established that counsel is presumed to have
provided effective representation unless the PCRA
petitioner pleads and proves all of the following: (1) the
underlying legal claim is of arguable merit; (2) counsel’s
action or inaction lacked any objectively reasonable basis
designed to effectuate his client's interest; and (3)
prejudice, to the effect that there was a reasonable
probability of a different outcome if not for counsel's
error.
The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
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Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (case
citations omitted).
The failure to file a suppression motion may be evidence of ineffective
assistance of counsel. Commonwealth v. Ransome, 402 A.2d 1379,
1381–1382 (Pa. 1979). However, if the grounds underpinning the
suppression motion or objection are without merit, counsel will not be
deemed to have been ineffective in failing to so move or object. Id. at
1382.
Here, Kelly maintains that “[t]here were numerous errors in the
Criminal Complaint and Affidavit of Probable Cause. Each one by themselves
may not be sufficient to file a motion. However, the totality warranted the
filing of a suppression motion.” Kelly’s Brief at 9 (“Summary of Argument”).
Kelly’s prior counsel who represented him prior to the entry of his final
guilty plea testified at the PCRA hearing concerning their representation.
Anthony Tambourino, Esquire, who represented Kelly beginning in February
to March of 2008, testified that inaccuracies in the criminal complaint
regarding the race and ethnicity would have no impact for purposes of a
suppression motion. Furthermore, Mr. Tambourino stated that although
Kelly believed the stop was pretextual, the stop was made for a motor
vehicle code violation. Finally, Mr. Tambourino testified that he read the
statement in the criminal complaint that an alcoholic odor was coming from
the “passenger compartment” to mean inside of the car. He stated that
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based upon the affidavit of probable cause and his discussions with Kelly,
Kelly had not provided any evidence that what the officer said was untrue.
Ronald Jackson, Esquire, who represented Kelly from September,
2008, to November 2008, testified that he became involved as standby
counsel at the hearing on Kelly’s request to withdraw his guilty plea.
Jackson testified that Kelly filed a pro se motion to suppress because he
received an unsigned copy of the affidavit, and that this pro se motion was
denied by the trial judge.4 Mr. Jackson further testified that he was aware of
Kelly’s concerns but did not see any reason to file a suppression motion
where it was “strictly a credibility issue with the officer in regards to the stop
and being a motor vehicle violation, where the ethnicity issue was an issue
that would go to the officer’s recollection,” 5 and that he took the officer’s
statement that alcohol was detected coming from the “passenger
compartment” to mean the inside of the car. He reiterated that he did not
feel a suppression motion had any merit.
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4
See Commonwealth v. Kelly, supra, 5 A.3d at 371 n.2 (“While Kelly
acknowledged he received the signed copy of the affidavit he also argued
the affidavit had been signed only ‘after the fact that [he] put a motion in.’
N.T., 9/22/08, at 4. Judge Blackwell, after hearing argument from both
counsel and Kelly, concluded the issue was frivolous. Id. at 3.”) & n.3
(noting Judge Blackwell denied Kelly’s pro se motion omnibus pretrial
motion).
5
N.T., 4/17/2013, at 24–25.
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Scott McCabe, Esquire, who was appointed to represent Kelly in
November of 2008, testified that there was no basis to file a suppression
motion since the officer had a reason to stop the car, “and that was the right
turn on red.”6 He testified “there were not errors that you would file a
pretrial motion for.”7 He stated: “What [Kelly] wanted is against what the
law says and I’m not in the practice of filing meritless, frivolous motions.”8
At the PCRA hearing, Lori Yost, Esquire, who was appointed to assist
Kelly in post-sentence/appeal proceedings also presented testimony
concerning her representation to “complete the record with respect to what
… her involvement was in the case.”9 She testified she filed an appeal on
behalf of Kelly, and argued that his plea was involuntary because he was not
represented by counsel at that time. She stated that this Court affirmed the
decision of the trial court, and she then filed a petition for allowance of
appeal in the Supreme Court, which was denied. She further stated that she
did not file a petition for reconsideration, as she did not see a legitimate
basis for reconsideration. She added that Kelly did not request her to file a
petition for reconsideration. Finally, she stated that she was aware that
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6
N.T., 4/17/2013, at 44.
7
Id. at 41.
8
Id. at 43.
9
See N.T., 4/17/2013, at 50–51.
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Kelly was unhappy with his prior counsel for not filing motions that he
wanted them to file on his behalf.
Lastly, Kelly testified that he believed counsel was inappropriate
because “none of them wanted to do what I wanted to do as far as
suppressions or raising any issues or pretrial motions.” N.T., 4/17/2013, at
71–72. He acknowledged that prior to the entry of his guilty plea, the trial
judge advised him that he could go to trial, require the Commonwealth to
prove its case, and raise any technical issues.
The PCRA court agreed with the conclusion of Kelly’s counsel that
there was no basis for filing a suppression motion, and denied the PCRA
petition.10 We conclude Kelly’s argument presents no reason to disturb the
PCRA court’s conclusion.
A defendant “may make a motion to the court to suppress any
evidence alleged to have been obtained in violation of the defendant’s
rights.” Pa.R.Crim.P. 581. Here, the record makes clear that counsel were
aware of Kelly’s concerns, and correctly concluded that no basis existed for
the filing of a suppression motion. Although Kelly believed the stop was
pretextual, “[a]n officer may conduct a lawful traffic stop if he or she
reasonably believes that a provision of the Motor Vehicle Code has been
violated. Commonwealth v. Steinmetz, 656 A.2d 527, 528 (Pa. Super.
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10
See N.T., 4/17/2013, at 106. The PCRA court reiterated its conclusion in
its Pa.R.A.P. 1925(a) opinion. See PCRA Court Opinion, 6/20/2013, at 2.
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1995). See also Commonwealth v. Busser, 56 A.3d 419, 424 (Pa.
Super. 2012) (officer’s observations enabled him to articulate specific facts
that established an unequivocal motor vehicle code violation, and therefore
probable cause existed and stop was lawful), appeal denied, 74 A.3d 125
(Pa. 2013). Furthermore, the inaccuracies in the criminal complaint with
regard to the wrong checked boxes for race and ethnicity, and the
description of an alcoholic odor in the “passenger compartment” do not
demonstrate any “violation of the defendant’s rights” that would not provide
a basis for a suppression motion. Pa.R.Crim.P. 581. Therefore, counsel
cannot be held ineffective for failing to file a meritless motion. See
Ransome, supra.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2015
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