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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH MASON :
:
Appellant : No. 661 WDA 2018
Appeal from the PCRA Order March 29, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009052-2013
BEFORE: OTT, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 19, 2018
Appellant, Joseph Mason, appeals pro se from the order entered by the
Court of Common Pleas of Allegheny County dismissing his petition filed under
the Post Conviction Relief Act, (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Herein,
Appellant contends trial counsel ineffectively failed to move for suppression of
illegally seized clothing of Appellant’s. We affirm.
The PCRA court aptly sets forth relevant facts and procedural history, as
follows:
The Defendant [hereinafter “Appellant”] was charged with
Violations of the Uniform Firearms Act (VUFA) [to wit,] Persons
Not to Possess Firearms1 and Carrying a Firearm Without a
License,2 Recklessly Endangering Another Person [(REAP)],3
Escape,4 and Possession or Distribution of Marijuana or Hashish.5
Appellant’s pre-trial Motion to Suppress was denied and Appellant
proceeded to a non-jury trial. At the conclusion of the trial,
Appellant was adjudicated guilty of both VUFA offenses and the
possession charge, and not guilty of [REAP]. On April 7, 2014, he
appeared before this Court and was sentenced to a term of
____________________________________
* Former Justice specially assigned to the Superior Court.
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imprisonment of two (2) to 10 years. Timely Post-Sentence
Motions were filed and were denied on August 20, 2014. The
judgment of sentence was affirmed by the Superior Court on
December 22, 2015 and Appellant’s subsequent Petition for
Allowance of Appeal was denied on April 20, 2016.
1 18 Pa.C.S.A. § 6105(a)(1).
2 18 Pa.C.S.A. § 6106(a)(1).
3 18 Pa.C.S.A. § 2705.
4 18 Pa.C.S.A. § 5121(a).
5 35 P.S. § 780-1113(a)(31).
On June 4, 2016, Appellant filed a pro se Post Conviction Relief
Act [hereinafter “PCRA”] petition. Rachael Santoriella, Esquire,
was appointed to represent Appellant, though she later filed a
Turner “No-Merit” Letter and sought and was granted permission
to withdraw from the representation. After giving the appropriate
notice of its intent to do so, [the PCRA court] dismissed the
Appellant’s pro se PCRA petition without a hearing on March 15,
2017. [An appeal] was taken to the Superior Court and in [a
decision] dated February 14, 2018, [the Court] vacated the Order
and remanded with instructions to issue a Notice of Intent to
Dismiss and give Appellant an opportunity to respond. 6 In
response, [the PCRA court] issued a Notice of Intent on February
21, 2018. After reviewing Appellant’s response which was filed on
March 14, 2018, [the PCRA court] again dismissed the Petition
without a hearing on March 29, 2018. This appeal followed.
6 In his appeal, Appellant argued that this Court erred in not
allowing him an extension of time to respond to the Notice of
Intent to Dismiss.
PCRA Court Opinion, 7/9/18 at 1-2.
In his pro se brief, Appellant presents several questions for our
consideration:
I. WAS TRIAL COUNSEL INEFFECTIVE FOR NOT MOVING
FOR THE SUPPRESSION OF ILLEGALLY SEIZED AND
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OBTAINED CLOTHING OF APPELLANT’S WITHOUT A
LEGAL SEARCH WARRANT?
II. WAS PCRA COUNSEL INEFFECTIVE FOR FAILING TO
AMEND [APPELLANT’S PCRA PETITION] AND RAISE
TRIAL COUNSEL’S INEFFECTIVENESS IN [AN
AMENDED] PETITION?
III. DID THE PCRA COURT ERR IN DISMISSING
APPELLANT’S PETITION WITHOUT A HEARING?
Appellant’s brief, at 1.
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the findings of
the PCRA court and the evidence on the record of the PCRA court's
hearing, viewed in the light most favorable to the prevailing party.
Because most PCRA appeals involve questions of fact and law, we
employ a mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by the
record. In contrast, we review the PCRA court's legal conclusions
de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa.Super. 2015)
(citations omitted).
In addition, A PCRA petitioner’s right to an evidentiary hearing is not
absolute. Commonwealth v. Barbosa, 819 A.2d 81, 85 (Pa.Super. 2003).
Rather, the PCRA court has discretion to dismiss a petition without a hearing
when the court is satisfied that there are no genuine issues of material fact,
the petitioner is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings. Commonwealth
v. Blakeney, 108 A.3d 739, 750 (Pa. 2014). To obtain a reversal of a PCRA
court’s decision to dismiss a petition without a hearing, a petitioner must show
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that he has raised a genuine issue of material fact which, if resolved in his
favor, would have entitled him to relief, or that the court otherwise abused its
discretion in denying a hearing. Id.
Appellant’s first two issues allege ineffective assistance of counsel. To
obtain relief under the PCRA premised on a claim that counsel was ineffective,
a petitioner must establish, by a preponderance of the evidence, that counsel's
ineffectiveness so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place. Commonwealth
v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s
performance is presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.” Id.
This requires the petitioner to demonstrate that: (1) the underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) counsel’s act or omission prejudiced the petitioner.
Id. at 533.
As to the first prong, “[a] claim has arguable merit where the factual
averments, if accurate, could establish cause for relief.” Commonwealth v.
Stewart, 84 A.3d 701, 707 (Pa.Super. 2013) (en banc). “Whether the facts
rise to the level of arguable merit is a legal determination.’” Id. (citing
Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).
As to the second prong of this test, trial counsel's strategic decisions
cannot be the subject of a finding of ineffectiveness if the decision to follow a
particular course of action was reasonably based and was not the result of
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sloth or ignorance of available alternatives. Commonwealth v. Collins, 545
A.2d 882, 886 (Pa. 1988). Counsel's approach must be “so unreasonable that
no competent lawyer would have chosen it.” Commonwealth v. Ervin, 766
A.2d 859, 862-63 (Pa.Super. 2000) (citation omitted). A petitioner asserting
ineffectiveness based upon trial strategy must demonstrate that the
“alternatives not chosen offered a potential for success substantially greater
than the tactics utilized.” Commonwealth v. Clark, 626 A.2d 154, 157 (Pa.
1993). “We do not employ a hindsight analysis in comparing trial counsel’s
actions with other efforts he [or she] may have taken.” Stewart, 84 A.3d at
707. A PCRA petitioner is not entitled to post-conviction relief simply because
a chosen strategy was unsuccessful. Commonwealth v. Buksa, 655 A.2d
576, 582 (Pa.Super. 1995).
As to the third prong of the test for ineffectiveness, “[p]rejudice is
established if there is a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different.” Stewart, 84 A.3d at
707. “A reasonable probability ‘is a probability sufficient to undermine
confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899
A.2d 365, 370 (Pa.Super. 2006).
Finally, when considering an ineffective assistance of counsel claim, the
PCRA court “is not required to analyze these [prongs] in any particular order
of priority; instead if a claim fails under any necessary [prong] of the
ineffectiveness test, the court may proceed to that [prong] first.”
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).
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In particular, when it is clear that the petitioner has failed to meet the
prejudice prong, the court may dispose of the claim on that basis alone,
without a determination of whether the first two prongs have been met.
Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel
cannot be deemed ineffective for failing to pursue a meritless claim.
Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).
Appellant asserts that trial counsel ineffectively failed to move to
suppress evidence of gunpowder residue found on his clothing because the
evidence was seized incident to an unlawful motor vehicle stop, subsequent
arrest, and discovery of a recently fired firearm nearby. Relatedly, he charges
PCRA counsel with ineffective assistance for failing to raise this claim in an
amended petition.
In fashioning his argument in this way, Appellant attempts to relitigate
his failed direct appeal from the order denying his motion to suppress. On
direct appeal, this Court upheld the suppression order, as we concluded
reasonable suspicion existed to conduct a stop of the car in which Appellant
rode. Relying on Commonwealth v. Robinson, 600 A.2d 957, 959
(Pa.Super. 1991) (possession of concealed firearm in public creates
reasonable suspicion to stop person and investigate whether person is
licensed), we held officers’ observation of a firearm in an unoccupied car
parked in a high crime area created reasonable suspicion that Appellant, who
later boarded the car, may be dangerous so as to justify an investigative
detention. Commonwealth v. Mason, 130 A.3d 148 (Pa.Super. 2015).
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As we have previously upheld the legality of police seizures of Appellant
and the firearm, the warrantless, post-arrest confiscation of Appellant’s
clothing for gunpowder residue testing was proper as long as it was directly
connected with the offense charged. See Commonwealth v. Stallworth,
781 A.2d 110, 116 (Pa. 2001) (holding warrantless seizure of clothing worn
at time of shooting was proper as incident to lawful arrest where clothing was
directly connected with offense charged).
Here, Appellant was charged with VUFA offenses and recklessly
endangering another person in connection with his possession of a firearm.
Testimony at Appellant’s suppression hearing established Appellant fled from
the scene of the traffic stop while keeping his hands near the center waistline
of his body. Ignoring police orders for him to stop, Appellant escaped the
officers’ view. Moments later, the officers heard a single gunshot, and the
officer in closest pursuit heard Appellant say, “You shot me.” Appellant gave
himself up moments later. He was not shot, and he was not in possession of
a gun. The officers denied firing a round.
With the aid of a thermal-imaging camera capable of detecting a
recently fired gun, officers recovered a gun from a wooded, overgrown area
right next to where Appellant had just emerged. One round had been fired
from the gun, and an unfired round was in its chamber.
As such, testing Appellant’s clothing for gunshot residue was directly
related to the VUFA and REAP offenses with which he was charged. Appellant
baldly claims Stallworth is inapposite because Appellant, unlike defendant
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Stallworth, was not a murder suspect. Appellant’s brief, at 8. This distinction
is irrelevant, as the scope of Stallworth’s precedential value is not limited to
homicide cases.
We may not deem counsel ineffective for failing to pursue a meritless
claim. See Loner, supra. As the warrantless seizure of Appellant’s clothing
was lawful, Appellant’s ineffectiveness claims based on counsel’s failure to
challenge the seizure is without arguable merit. Accordingly, his claim affords
him no relief.
Finally, Appellant alleges in his Statement of Questions Presented that
the PCRA court erroneously dismissed his petition without an evidentiary
hearing. Because Appellant’s brief contains no argument in support of this
issue, we deem it waived. See Pa.R.A.P. 2119 (regarding required content of
developed argument); Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa.
2002) (“[I]t is a well settled principle of appellate jurisprudence that
undeveloped claims are waived and unreviewable on appeal.”). Even if we did
not deem it waived, we find Appellant fails to make the showing necessary to
reverse a PCRA court’s decision to dismiss a petition without a hearing. See
Blakeney, supra (petitioner must show he has raised a genuine issue of
material fact, which, if resolved in his favor, would have entitled him to relief).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2018
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