J-A14023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERMAINE K. WEEKS
Appellant No. 1804 MDA 2014
Appeal from the PCRA Order September 26, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001408-2009
BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY JENKINS, J.: FILED MAY 18, 2015
Appellant Jermaine K. Weeks appeals from the order of the Lycoming
County Court of Common Pleas dismissing his petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541, et seq. We affirm.
On August 16, 2009, the Williamsport Bureau of Police submitted an
application for a warrant to search Appellant’s residence. The affidavit of
probable cause submitted in support thereof stated:
On Sunday August 16th, 2009 at approximately 0219
hours, units from the Williamsport Bureau of Police
responded to the 700 block of West Edwin Street for report
of four shots fired. Shortly after dispatch LCCC advised
that there were more shots fired in the same area.
Police arrived on [the] scene [and] discovered that there
were six shell casings in the street in the 700 block of
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*
Retired Senior Judge assigned to the Superior Court.
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West Edwin Street and two more discovered just around
the corner in the 300 block of Mifflin Place. Contact was
made with one of the reporting persons, a Shakeema
Shuler of 753 West Edwin Street. She stated that she and
[Appellant] had been arguing at her residence. She stated
that as [Appellant] was leaving [] he pulled up his shirt
and grabbed a pistol that was in his waistband.
[Appellant] pulled the gun out of the waistband a little and
then pushed it back in his waistband.
Shuler stated that she closed her door and about three
seconds later she heard three or four shots just outside
her door and observed flashes through her windows. A few
moments later she heard three or four more shots and saw
more flashes, this time coming from the west of her front
door. Shuler stated that she could see the flashes coming
through her son[’]s bedroom window to the west, facing
Mifflin Place.
Another witness stated that he was in the area of the 700
block of West Fourth Street when he heard four shots to
his north, near the 700 block of West Edwin Street. A few
moments later he observe[d] a black male matching
[Appellant’s] description walk from Mifflin Place and get
into a burgundy sedan and leave the area. This witness
stated that he saw no other vehicular or pedestrian traffic
in the area.
A total of eight spent shell casings were discovered in the
700 block of West Edwin Street and the 300 block of Mifflin
Place.
A check of [Appellant’s] criminal history shows that he was
found guilty of Title 18 Section 3701 — Robbery on
09/22/1997, thereby making him a Person Not To Possess
a Firearm as enumerated in 6105 of Title 18.
I ask that a search warrant for [Appellant’s] residence be
issued so that any fruits of said crime be recovered as
evidence. Due to the fact of the weapon being involved
and to the fact of the suspect[’]s apparent state of mind,
as evidenced by the total number of shots being fired, [I]
ask that a [nighttime] search warrant be issued for the
suspect[’]s residence.
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Affidavit of Probable Cause, dated 8/16/2009. Based on this affidavit of
probable cause, Magisterial District Judge Carn granted the search warrant
application on August 16, 2009 at 5:50 a.m.1 Opinion, 7/28/2014, at 2.
Police executed the search warrant at 5:59 a.m., and found a rifle in
Appellant’s residence. Id. at 2.
The trial court set forth the following procedural history:
[Appellant] was charged with two counts of Possession of a
Firearm by a Prohibited Person.1 Following the preliminary
hearing, one count was dismissed, and the other count
was held for trial.
1
18 Pa.C.S. § 6105(a)(1).
On November 17, 2009, trial counsel filed a motion to
suppress the rifle found in [Appellant’s] apartment. During
the hearing on the motion, trial counsel argued that police
entered [Appellant’s] residence before the warrant was
obtained. Trial counsel also argued that police had entered
the residence during nighttime even though the warrant
was to be served only between the hours of 6 A.M. and 10
P.M. Following the hearing, the Honorable Marc Lovecchio
found that MDJ Carn inadvertently checked the wrong box
on the search warrant and intended to indicate that the
warrant could be served any time day or night. In addition,
Judge Lovecchio found that the search warrant was issued
at 5:50 A.M. and execution of the warrant began at 5:59
A.M. Judge Lovecchio determined that [Appellant] was not
entitled to the suppression of the rifle because a technical
or procedural violation does not justify exclusion of the
evidence. See Order, February 2, 2010.
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1
The magisterial judge checked the box indicating the “[w]arrant shall be
served as soon as practicable and shall be served only between the hours of
6AM and 10PM but in no event later than 5:50 A.M. . . . August 18, 2009.”
Application for Search Warrant and Authorization.
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On October 19, 2010, a jury found [Appellant] guilty of
Possession of a Firearm by a Prohibited Person. On March
8, 2011, this [c]ourt sentenced [Appellant] to a prison
term of five to ten years. [Appellant] appealed the
judgment of sentence. The Superior Court denied the
appeal on May 25, 2012. On January 14, 2013, [Appellant]
filed a PCRA petition, in which he requested reinstatement
of his right to petition for allowance of appeal to the
Supreme Court of Pennsylvania. On April 16, 2013, this
[c]ourt reinstated [Appellant’s] right to petition for
allowance of Appeal to the Supreme Court. On October 29,
2013, the Supreme Court of Pennsylvania denied
[Appellant’s] petition for allowance of appeal.
Opinion, 7/30/2014, at 1-3.
On March 5, 2014, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed counsel, who filed an amended PCRA petition. On July
28, 2014, the PCRA court issued its notice of intent to dismiss the PCRA
petition without a hearing pursuant to Pennsylvania Rule of Criminal
Procedure 907. Appellant filed pro se objections to this notice. On
September 26, 2014, the PCRA court dismissed the petition.
Appellant raises the following issue on appeal:
Whether the trial court erred in denying Appellant’s PCRA
petition where Appellant’s trial counsel was ineffective
because she failed to move for suppression of the firearm
located in Appellant’s residence on grounds that police did
not have probable cause to search Appellant’s home?
Appellant’s Brief at 7. Appellant argues his trial counsel was ineffective for
failing to file a suppression motion. Because claims of ineffective assistance
of counsel are cognizable under the PCRA, we will address the merits of his
claim. See 42 Pa.C.S. § 9543(a)(2)(ii).
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Our standard of review from the denial of post-conviction relief “is
limited to examining whether the court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238 (Pa.Super.2011) (citing Commonwealth v.
Morales, 701 A.2d 516, 520 (Pa.1997)).
For ineffective assistance of counsel claims, the petitioner must
establish: “(1) that the underlying claim has merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) but for
the errors or omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different.” Ousley, 21 A.3d at
1244 (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279
(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove
any one of the three [ineffectiveness] prongs results in the failure of
petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).
Appellant alleges trial counsel was ineffective for failing to file a motion
to suppress arguing the police lacked probable cause to search for a firearm
in his residence because the affidavit of probable cause failed to establish a
nexus between the crime and his residence. Appellant’s Brief at 14. This
claim is meritless.
Article I, Section 8 of the Pennsylvania Constitution and the Fourth
Amendment of the United States Constitution require that a search warrant
be supported by probable cause. Commonwealth v. Jones, 988 A.2d
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649, 655 (Pa.2010). “Probable cause exists where the facts and
circumstances within the affiant’s knowledge and of which he has reasonably
trustworthy information are sufficient in themselves to warrant a man of
reasonable caution in the belief that a search should be conducted.” Id.
(quoting Commonwealth v. Thomas, 292 A.2d 352, 357 (Pa.1972)). Both
the Supreme Court of the United States and our Supreme Court apply a
totality of the circumstances test to determine whether probable cause
exists. Id. Pursuant to this test:
[T]he task of an issuing authority is simply to make a
practical, common-sense decision whether, given all of the
circumstances set forth in the affidavit before him,
including the veracity and basis of knowledge of persons
supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a
particular place. . . .
Id. (quoting Commonwealth v. Torres, 764 A.2d 532, 537 (Pa.2001)).
The affidavit in support of probable cause must set forth a substantial nexus
between the crime and the place to be searched. Commonwealth v. Way,
492 A.2d 1151, 1154 (Pa.Super.1985).
A court reviewing an issuing authority’s probable cause determination
must:
[E]nsure that the magistrate had a substantial basis for
concluding that probable cause existed. In so doing, the
reviewing court must accord deference to the issuing
authority’s probable cause determination, and must view
the information offered to establish probable cause in a
common-sense, non-technical manner.
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Jones, 988 A.2d at 655 (quoting Torres, 764 A.2d at 537-38). This Court
does “not . . . conduct a de novo review of the issuing authority’s probable
cause determination, but . . . simply . . . determine[s] whether or not there
is substantial evidence in the record supporting the decision to issue the
warrant.” Id. (quoting Torres, 764 A.2d at 540).
Appellant relies on Commonwealth v. Kline2 and Way, to support
his argument the affidavit lacked a substantial nexus between the alleged
crime and the place to be searched, his residence. Kline and Way both
addressed a suspected drug-dealer and found insufficient evidence of a
connection between the illegal activity, selling drugs outside of the home,
and the home itself to provide probable cause to support a search warrant
for drug items in the defendant’s residence. Kline, 335 A.2d at 364
(insufficient evidence to establish probable cause that fruits of crime would
be found at residence where informants did not say where L.S.D. was
located, affidavit merely had informants’ conclusion it was in defendant’s
apartment, affidavit did not “set forth how information leading to such a
conclusion was obtained,” “[t]here is no indication of where the transaction
took place, how long it took, how long [defendant] was gone, or what led
the girls to conclude that he had gone to his apartment,” and information did
not corroborate conclusion that defendant “kept drugs in his apartment,
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2
Commonwealth v. Kline, 335 A.2d 361 (Pa.Super.1975).
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even though it does tend to establish that [defendant] was a drug dealer”);
Way, 492 A.2d at 1154 (no probable cause because affidavit did not contain
sufficient facts to believe drugs would be found on premises to be searched
where: “informant arranged a drug transaction by phone[; t]he alleged
transaction occurred in a blue van along a country road[; a]fter the alleged
transaction, police followed the blue van to a driveway of a property at the
corner of Douglas [Drive] and Glendale [Road; t]he informant identified
appellant as the driver of the blue van[; and a] police source told the affiant
that appellant lived at the intersection of Douglas [Drive] and Glendale
[Road]”); see also Commonwealth v. Wallace, 42 A.3d 1040 (Pa.2012)
(no probable cause for anticipatory search warrant where confidential
informant made no allegation drugs were being sold by “Greg” at Appellant’s
home, informant provided no factual details regarding location and time of
any of “Greg’s” prior cocaine sales, or his basis of knowledge for this
information, averments did not establish “Greg” or anyone else was using his
home for selling or storing drugs, police had not observed any criminal
activity and were not informed of any prior criminal activity involving either
appellant or location, and no facts in affidavit suggested confidential
informant had purchased drugs from “Greg,” or witnessed “Greg” selling
drugs at “any location, let alone at Appellant’s home”).
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In contrast, in Commonwealth v. Hutchinson,3 this Court found the
affidavit was supported by probable cause and sufficiently averred the fruits
of the crime, robbery, would be found at the defendant’s home where the
affidavit stated that the defendant had been positively identified by two of
the victims and “the items seized, a shirt and a gun, were each of a type
reasonably likely to be found in the perpetrator’s home, especially given the
short period of time between the commission of the crimes and the
application for the search warrant.” 434 A.2d at 743.
The PCRA court found Appellant’s claim lacked merit and counsel was
not ineffective for failing to raise it. Opinion, 7/28/2014, at 8. The affidavit
of probable cause establishes Ms. Shuler saw Appellant with a gun and
immediately thereafter heard gunshots. There were additional eyewitnesses
who saw a man fitting Appellant’s description enter a burgundy sedan and
leave the street. No other pedestrians or vehicles were in the area. Similar
to Hutchinson, the item to be seized, a gun, was the type reasonably likely
to be found in the perpetrator’s home, especially as only four hours passed
between the commission of the crime and the execution of the search.
The PCRA court’s conclusions are supported by the record and free of
legal error. See Ousley, 21 A.3d at 1244.4
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3
434 A.2d 740 (Pa.Super.1981).
4
In his pro se response to the PCRA court’s notice of intent to dismiss the
PCRA petition, Appellant claimed the affidavit of probable cause contained
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2015
_______________________
(Footnote Continued)
false statements because Ms. Shuler gave false information to the police
officers. Petitioner’s Supplemental Objection to Court’s Intent To Dismiss,
filed 8/14/2014, at 4. He attached an affidavit signed by Ms. Shuler stating
Appellant did not have a firearm on the night in question. Id., at Affidavit.
This claim is waived because it is not contained in the statement of
questions presented or argument sections of Appellant’s appellate brief.
Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.”);
Commonwealth v. Veon, 109 A.3d 754, 774 (Pa.Super.2015) (claim
waived where Appellant did not develop argument in support of issue).
Further, the PCRA court correctly found the warrant was supported by
probable cause even without Ms. Shuler’s statement that Appellant had a
gun. Opinion, 9/26/2014, at 2.
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