J-S69025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MANUEL RIOS, JR. :
:
Appellant : No. 495 MDA 2018
Appeal from the PCRA Order March 16, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0001556-2016,
CP-36-CR-0002121-2017, CP-36-CR-0003555-2017,
CP-36-CR-0004452-2016, CP-36-CR-0004992-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 02, 2018
Manuel Rios, Jr., appeals from the order, entered in the Court of
Common Pleas of Lancaster County, denying his petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon careful
review, we affirm.
Rios was arrested for various offenses related to the sale of narcotics
and charged at four docket numbers. He ultimately entered a negotiated plea
agreement with respect to all of them. Pertinent to this appeal, at docket
number 2121 of 2017, Rios pled guilty to one count of person not to possess
a firearm and received a sentence of 5 to 10 years’ incarceration, the
lengthiest single sentence imposed pursuant to the plea agreement.1 The
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1Rios’ other sentences were imposed concurrently and his aggregate sentence
was 5 to 10 years’ imprisonment.
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firearm in question was seized during a raid of his residence executed
pursuant to a search warrant, the validity of which forms the crux of this
appeal. Rios did not file post-sentence motions or a direct appeal.
On September 25, 2017, Rios filed a timely pro se PCRA petition. The
court appointed counsel, who filed an amended petition on January 18, 2018.
The Commonwealth filed its answer and, on February 16, 2018, the PCRA
court issued a notice of intent to dismiss Rios’ petition without a hearing
pursuant to Pa.R.Crim.P. 907. By order dated March 15, 2018, the court
dismissed Rios’ petition.
Rios filed a timely appeal to this Court. Both Rios and the PCRA court
have complied with Pa.R.A.P. 1925. Rios raises the following claim for our
review:
Whether the [PCRA] court erred in denying [Rios’] amended PCRA
[petition] without holding a hearing when trial counsel was
ineffective by advising [Rios] to plead guilty despite the fact that
he had a meritorious motion to suppress pertaining to the charges
docketed to number 2121 of 2017?
Brief of Appellant, at 4.
We begin by noting that our review of a PCRA court’s decision is limited
to examining whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal error.
Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010). The scope of
review is limited to the findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at the PCRA court
level. Id.
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Rios’ claim asserts the ineffectiveness of plea counsel. “It is well-
established that counsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel’s performance was
deficient and that such deficiency prejudiced him.” Commonwealth v.
Koehler, 36 A.3d 121, 132 (Pa. 2012), citing Strickland v. Washington,
466 U.S. 668, 687–91 (1984). To prove that counsel was ineffective, a
petitioner must demonstrate that: (1) the underlying legal issue has arguable
merit; (2) counsel’s actions lacked an objective reasonable basis; and (3) he
was prejudiced by counsel’s act or omission. Koehler, 36 A.3d at 132. Failure
to prove any prong of this test will defeat an ineffectiveness claim.
Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). In order to
invalidate a plea on the basis of ineffectiveness of counsel, a petitioner must
plead and prove that the ineffectiveness caused an involuntary or unknowing
plea. Commonwealth v. D’Collanfield, 805 A.2d 1244, 1246 (Pa. Super.
2002).
A PCRA court may dismiss a petition without a hearing when it is
satisfied there are no genuine issues concerning any material fact, the
defendant is not entitled to post-conviction collateral relief, and no legitimate
purpose would be served by further proceedings. Commonwealth v.
Cousar, 154 A.3d 287, 297 (Pa. 2017).
Here, Rios claims that plea counsel was ineffective for advising him to
accept a plea, despite the fact that he had a meritorious suppression claim
with regard to the fruits of the search performed, pursuant to a warrant, at
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his residence at 646 West Walnut St., First Floor, in the City of Lancaster. In
particular, Rios alleges that probable cause did not exist within the four
corners of the warrant’s supporting affidavit and, thus, a suppression motion
would have been granted had he not pled guilty on the basis of faulty advice
from counsel. The affidavit of probable cause relied, in part, on statements
made to police by a confidential informant (“CI”) who was familiar with Rios
and had previously purchased cocaine from him at his residence. Rios asserts
that the information provided by the CI was stale by the time the affidavit was
prepared, approximately two months after the CI last purchased cocaine from
Rios. Moreover, Rios claims that the additional facts included in the affidavit
– including a statement from a “concerned citizen” and the details of a trash
pull conducted by the affiant – were insufficient to cure the staleness of the
CI’s information.
The Fourth Amendment to the U.S. Constitution and Article I, Section 8
of the Pennsylvania Constitution require that search warrants be supported by
probable cause.
The legal principles applicable to a review of the sufficiency of
probable cause affidavits are well settled. Before an issuing
authority may issue a constitutionally valid search warrant, he or
she must be furnished with information sufficient to persuade a
reasonable person that probable cause exists to conduct a search.
The standard for evaluating a search warrant is a “totality of the
circumstances” test as set forth in Illinois v. Gates, 462 U.S. 213
[] (1983), and adopted in Commonwealth v. Gray, [] 503 A.2d
921 ([Pa.] 1985). A magistrate is to make a practical, common
sense decision whether, given all the circumstances set forth in
the affidavit before him, including the ‘veracity’ and ‘basis of
knowledge’ of persons supplying hearsay information, there is a
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fair probability that contraband or evidence of a crime will be
found in a particular place. The information offered to establish
probable cause must be viewed in a common sense, nontechnical
manner. Probable cause is based on a finding of the probability,
not a prima facie showing of criminal activity, and deference is to
be accorded a magistrate’s finding of probable cause.
Commonwealth v. Manuel, 2018 PA Super 232, *9 (Pa. Super. 2018)
(quotation marks omitted).
In the instant matter, Rios alleges that the affidavit lacked probable
cause because it was based on stale information.
[A]ge of the information supporting a warrant application is a
factor in determining probable cause. If too old, the information
is stale, and probable cause may no longer exist. Age alone,
however, does not determine staleness. The determination of
probable cause is not merely an exercise in counting the days or
even months between the facts relied on and the issuance of the
warrant. Rather, we must also examine the nature of the crime
and the type of evidence.
Commonwealth v. Hoppert, 39 A.3d 358, 363 (Pa. Super. 2012). “If the
issuing officer is presented with evidence of criminal activity at some prior
time, this will not support a finding of probable cause as of the date the
warrant issues, unless it is also shown that the criminal activity continued up
to or about that time.” Commonwealth v. Novak, 335 A.2d 773, 775 (Pa.
Super. 1975), quoting Commonwealth v. Shaw, 281 A.2d 897, 899 (Pa.
1971).
Here, a finding of probable cause is amply supported by the affidavit.
The affiant, Detective Craig Parduski of the Lancaster County Drug Task Force,
explained that, as a result of his training and experience, as well as common
sense and common knowledge, he is aware that sellers of illegal drugs often
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keep evidence of their illicit activities, including drug and packaging
paraphernalia, written records, cash proceeds, and firearms, in their
residences. Detective Parduski further stated that, in February 2017, he met
with a CI who had provided information leading to at least one arrest and
felony drug conviction. The CI was familiar with Rios and knew that he sold
cocaine from his residence, as the CI had purchased cocaine from Rios at his
residence in February 2017.
Detective Parduski also averred that, in April 2017, he spoke with a
“concerned citizen” who had witnessed a male occupant at Rios’ address
making repeated short-term walks from, and back to, his residence all day
long. The citizen had also seen the male with a large bundle of cash in his
hand, and noted that the male had installed several video surveillance
cameras on the residence. When shown a photograph of Rios, the citizen
identified him as the male he had seen.
The affiant further stated that, on April 11, 2017, he and another
detective conducted a trash pull at Rios’ residence, during which they
discovered white trash bags containing documentation for Rios at the address
in question along with 33 plastic sandwich bags with the corners torn off.
Detective Parduski, through his training and experience, was aware that the
baggies were indicative of the packaging of drugs, specifically cocaine, for
sale.
Finally, Detective Parduski stated that Rios had previously been arrested
and convicted of possession and possession with intent to deliver narcotics.
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Under the totality of the circumstances, the information provided in the
affidavit of probable cause was sufficient to support the issuance of a warrant
for Rios’ residence. Although the information provided by the CI was
approximately two months old at the time the affidavit was executed,
Detective Parduski received new additional information from the “concerned
citizen” tending to show that criminal activity continued up to or about the
date of the affidavit.2 Novak, supra. Evidence obtained during the trash
pull, conducted on the very day the affidavit was executed, further bolstered
the inference of current and ongoing criminal activity.
In sum, the affidavit contained a substantial basis to conclude that
criminal activity was afoot in Rios’ residence and that Rios was involved.
Because Rios’ suppression motion was without merit, plea counsel cannot be
deemed ineffective for advising him to plead guilty prior to the disposition of
the motion. Fears, supra (failure to prove any prong of ineffectiveness test
will defeat ineffectiveness claim). Accordingly, the PCRA court did not err in
dismissing Rios’ petition without a hearing. Cousar, supra.
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2 We note that a tip from an anonymous “concerned citizen” would not be
sufficient, standing alone, to support a finding of probable cause. See
Manuel, supra (information provided by a CI whose reliability has not been
adequately corroborated insufficient to establish probable cause to support
issuance of warrant). Here, however, the totality of the circumstances,
including corroborative evidence obtained by police, is sufficient to support
the issuance of a warrant.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/2018
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