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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
EDDIE EVANS :
:
Appellant : No. 1763 EDA 2016
Appeal from the PCRA Order March 21, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014962-2010
BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 18, 2017
Appellant, Eddie Evans, appeals from the order entered in the
Philadelphia County Court of Common Pleas, dismissing his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its opinion, the PCRA court fully and correctly set forth the relevant
facts of this case. Therefore, we have no reason to restate them.
Procedurally, a jury convicted Appellant of robbery on October 13, 2011.
The court sentenced Appellant on February 2, 2012, to a term of ten (10) to
twenty (20) years’ imprisonment. This Court affirmed the judgment of
sentence on April 11, 2013, and our Supreme Court denied allowance of
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1
42 Pa.C.S.A. §§ 9541-9546.
___________________________
*Former Justice specially assigned to the Superior Court.
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appeal on September 25, 2013. See Commonwealth v. Evans, 75 A.3d
550 (Pa.Super. 2013), appeal denied, 621 Pa. 189, 76 A.3d 535 (2013).
Appellant did not seek further review, and his judgment of sentence became
final on December 24, 2013.
Appellant timely filed a pro se PCRA petition on December 22, 2014.
The PCRA court appointed PCRA counsel, who subsequently filed a motion to
withdraw and Turner/Finley2 no-merit letter on November 27, 2015. On
February 1, 2016, the PCRA court issued notice of its intent to dismiss
Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907. Appellant filed a
premature notice of appeal on March 2, 2016.3 The PCRA court denied relief
and allowed counsel to withdraw on March 21, 2016. On September 13,
2016, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b). Appellant timely filed a
counseled Rule 1925(b) statement on October 4, 2016. In his Rule 1925(b)
statement Appellant, for the first time, claimed: trial counsel was ineffective
for failing to file and litigate a motion to suppress the physical evidence of
this case; and PCRA counsel was ineffective for failing to raise a claim of trial
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2
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3
Appellant’s notice of appeal relates forward to March 21, 2016, the date
the PCRA court denied PCRA relief. See Pa.R.A.P. 905(a)(5) (stating notice
of appeal filed after court’s determination but before entry of appealable
order shall be treated as filed after such entry and on date of entry). Hence,
no appellate jurisdictional defects impede our review.
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counsel’s ineffectiveness for not filing the motion to suppress. Appellant also
claimed trial counsel was ineffective for not filing a motion to suppress the
complainant’s out of court identification of Appellant.
Appellant presents one issue in his brief:
WHETHER TRIAL COUNSEL WAS INEFFECTIVE IN FAILING
TO FILE AND LITIGATE A MOTION TO SUPPRESS THE
PHYSICAL EVIDENCE?
(Appellant’s Brief at 3).
Appellant concedes the police had reasonable suspicion to stop
Appellant and perform a Terry4 frisk to search for weapons. Appellant,
however, argues police lacked probable cause to search Appellant after the
police confirmed Appellant was unarmed. Appellant asserts the police went
beyond the scope of a Terry frisk when they removed cell phones from
Appellant’s pocket. Appellant maintains even if police could have
immediately determined that what they felt was a cell phone, the police
could not just from the feel decide the cell phone was stolen and thus
contraband. Appellant argues the plain feel doctrine does not apply to the
facts of this case and, as a result, the police unconstitutionally seized the cell
phone from Appellant’s person without the requisite probable cause.
Appellant also claims he was not in possession of the cell phone found on the
ground three feet from him or the gun recovered three to four houses away
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4
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
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from Appellant; and he had no connection to those items. Appellant submits
trial counsel was ineffective for failing to file and litigate a motion to
suppress all of the physical evidence recovered as a result of the stop.
Appellant avers trial counsel had no reasonable basis for failing to file and
litigate a motion to suppress. Appellant insists he was prejudiced by trial
counsel’s failure because without the evidence obtained, nothing tied
Appellant to the crime. Appellant also asserts the complainant failed to
identify Appellant as the assailant at trial, so there is a reasonable possibility
that the outcome at trial would have been different as well.
Appellant additionally argues PCRA counsel was ineffective for failing
to raise this claim of trial counsel’s ineffectiveness regarding the suppression
of evidence. Appellant concludes we should reverse the dismissal of his
PCRA petition and remand for a new trial. We disagree.
Our standard of review of a grant or denial of a PCRA petition is limited
to examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). We exercise de novo review over
the PCRA court’s legal conclusions. Commonwealth v. Spotz, 610 Pa. 17,
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44, 18 A.3d 244, 259 (2011).
A PCRA petitioner must plead and prove his allegation of error has not
been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). “[A]n issue
is waived if the petitioner could have raised it but failed to do so before trial,
at trial, during unitary review, on appeal or in a prior state post-conviction
proceeding.” 42 Pa.C.S.A. § 9544(b). A petitioner must preserve any
challenge to PCRA counsel’s stewardship in a response to counsel’s no-merit
letter, if counsel moves to withdraw, or during the 20-day response period
following the court’s Rule 907 notice of intent to dismiss. Commonwealth
v. Pitts, 603 Pa. 1, 9 n.4, 981 A.2d 875, 880 n.4 (2009). See also
Commonwealth v. Ousley, 21 A.3d 1238, 1245 (Pa.Super. 2011), appeal
denied, 612 Pa. 698, 30 A.3d 487 (2011) (stating Pitts prohibits appellate
review of any ineffectiveness of counsel claim, if issue is raised for first time
in PCRA appeal).
In the instant case, Appellant timely filed a pro se PCRA petition on
December 22, 2014. The PCRA court appointed counsel, who subsequently
filed a motion to withdraw and Turner/Finley no-merit letter. On February
1, 2016, the PCRA court issued Rule 907 notice. Appellant did not respond
to counsel’s motion to withdraw and Turner/Finley no-merit letter or to the
court’s Rule 907 notice. Instead, Appellant filed a premature notice of
appeal on March 2, 2016. The PCRA court denied relief and allowed counsel
to withdraw on March 21, 2016. In his Rule 1925(b) statement, Appellant,
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for the first time, claimed: trial counsel was ineffective for failing to file and
litigate a motion to suppress the physical evidence of this case; and PCRA
counsel was ineffective for failing to raise a claim of trial counsel’s
ineffectiveness for not filing the motion to suppress. Therefore, Appellant’s
claims are waived. See Pitts, supra; Ousley, supra.
Moreover, even if Appellant had properly preserved his issue for
appeal, it would merit no relief, as demonstrated in the PCRA court opinion.
(See PCRA Court Opinion, filed October 21, 2016, at 5-20) (finding: police
possessed reasonable suspicion to stop and frisk Appellant; radio call
reported armed robbery late at night and described assailant as black male
wearing burgundy hoodie; robbery occurred in high crime area; police
responded to radio call and observed Appellant, who was wearing burgundy
hoodie and was only individual in vicinity of robbery; radio call noted
assailant removed two cell phones from complainant; while frisking
Appellant, police felt cell phone in his waistband and recovered it; police
reasonably believed cell phone in Appellant’s waistband was contraband and
were justified in recovering it from Appellant; even if phone recovered from
Appellant’s waistband was subject to exclusion, remaining evidence would
have sustained Appellant’s conviction; when police encountered Appellant
and pursued him, police observed Appellant drop object; item Appellant
dropped and police recovered was cell phone; complainant promptly
identified Appellant, as assailant, as well as cell phone recovered from
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Appellant’s person and cell phone Appellant had discarded; complainant also
identified handgun Appellant had used during robbery, which police also
recovered nearby; complainant positively identified Appellant as robber at
scene; even though complainant could not identify Appellant as assailant at
time of trial, complainant acknowledged he had previously identified
Appellant in signed statement to police; complainant’s prompt one-on-one
identification of Appellant at scene as assailant was unequivocal and
untainted by surrounding circumstances; complainant’s inability to recognize
and identify Appellant at trial did not require exclusion of complainant’s prior
identification of Appellant). Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
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Circulated 06/20/2017 01:26 PM