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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID MATTHEW TRES :
:
Appellant : No. 1297 EDA 2018
Appeal from the PCRA Order March 19, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004624-2016
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
CONCURRING MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 09, 2019
The majority affirms this PCRA appeal based on the well-reasoned
opinion of the PCRA court. I concur with this decision. I write separately to
specifically address Tres’ argument that his plea counsel was ineffective based
on this Court's decision in Commonwealth v. Jones, 845 A.2d 821 (Pa.
Super. 2004).
Both of Tres’ claims on appeal allege the ineffective assistance of
counsel in relation to the entry of his guilty plea. As this Court has
summarized:
A criminal defendant has the right to effective counsel
during a plea process as well as during trial. A defendant is
permitted to withdraw his guilty plea under the PCRA if
ineffective assistance caused the defendant to enter an
involuntary plea[.]
We conduct our review of such a claim in accordance with
the three-pronged ineffectiveness test under section
9543(a)(2)(ii) of the PCRA. The voluntariness of the plea
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depends on whether counsel’s advice was within the range
of competence demanded of attorneys in criminal cases.
Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)
(citations omitted).
In addressing Tres’ claims, the PCRA court addressed the issue as if it
were a direct challenge to the voluntariness of his plea, rather than a challenge
to the advice given by plea counsel. The PCRA court rejected Tres’
ineffectiveness claim only after engaging in an analysis of the statements
made by Tres during the plea colloquy. The Majority, by adopting the PCRA
court’s reasoning, likewise does not address Tres’ actual claim of
ineffectiveness.
Tres believes his lawyer was ineffective for advising him to take a plea
instead of proceeding with a suppression motion based on an illegal stop. To
support his claim, he relies solely on our decision in Jones, supra. He
believes this case conclusively renders his stop and the subsequent pat-down
for weapons illegal, and that his attorney should have known about the Jones
case and given him better advice.
Tres is mistaken. The facts of his case are significantly different from
Jones, and as such, the suppression court would likely have denied his
suppression motion.
In Jones, a panel of this Court concluded that, although the police knew
the name of the informant, such information alone was insufficient to serve
as a basis for a stop. Id. at 825. Specifically, the panel concluded that the
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identity of the tipster alone was insufficient in light of the content of the
information provided by the tipster to the police. Id. That is, the only
information provided by the identified tipster was a description of a vehicle at
a certain location which was allegedly “involved in drug activity.” Id. Without
a more detailed explanation of the person and activity at issue, the panel
concluded that the police did not have reasonable suspicion to stop the driver.
Id. at 826. Specifically, the panel stated the officer “did not know what ‘drug
activity’ was involved, or the identity, gender, race or number of individuals
involved in the alleged activity.” Id. at 826. Consequently, this tip did not
contain sufficient specificity to justify the detention.
However, we noted in Jones that the knowledge of the identity of the
caller who provided information to the police, may in certain circumstances,
serve as a basis to presume the reliability and trustworthiness of the
information provided by the individual. Id. at 825.
Since Jones, we have observed that “identified citizens who report their
observations of criminal activity to police are assumed to be trustworthy, in
the absence of special circumstances, since a known informant places himself
at risk of prosecution for filing a false claim if the tip is untrue, whereas an
unknown informant faces no such risk.” Commonwealth v. Barber, 889 A.2d
587, 593 (Pa. Super. 2005). Similarly, “Pennsylvania law ... permits a vehicle
stop based upon a radio bulletin if evidence is offered at the suppression
hearing to establish reasonable suspicion.” Id. at 594.
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[F]or a stop to be valid, someone in the police department must
possess sufficient information to give rise to reasonable suspicion.
The officer with the reasonable suspicion, usually the dispatcher,
need not convey all of this background information to the officer
who actually effectuates the stop. Thus, the police may justify the
search by presenting sufficient evidence at the suppression
hearing that someone in the chain of command had reasonable
suspicion before the stop, even if the arresting officer did not.
Id. (citation omitted). See also Commonwealth v. Anthony, 977 A.2d
1182, 1186–87 (Pa. Super. 2009).
Here, in addition to the caller being identified, unlike in Jones, the caller
gave a specific description of the vehicle, driver, and activity at issue. The
caller identified a white male in a black hooded sweatshirt riding a motor
scooter displaying a gun. Therefore, the suppression court could have found
this information was sufficiently specific and reliable to give Officer Garay
reasonable suspicion to stop Tres on his scooter. Moreover, the officer
observed Tres commit a motor vehicle violation on the scooter, i.e. an unlit
headlamp, which also justified the stop. Additionally, the pat-down was
further warranted when Tres disobeyed the officer’s command not to dismount
the scooter; since he got off of the scooter, in direct contravention of the
officer’s order, this arguably gave the officer authority to conduct the pat-
down for officer safety. See e.g. Commonwealth v. Mack, 953 A.2d 587
(Pa. Super. 2008).
Based on the totality of the circumstances here, Tres likely would have
lost his suppression motion. See Barber, supra and Anthony, supra. His
attorney advised him of this likelihood in the letter of October 10, 2016.
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In addition to the unlikely success of the suppression motion, had Tres
pursued suppression, the negotiated plea offer of 3 and ½ years of
incarceration would have been withdrawn. If convicted, Tres faced 5 years
for the gun charge and an additional 2 years for the theft charge, which the
district attorney could request to run consecutively.1 As such, Tres’ attorney
warned him, “When you consider all of this you have to conclude that you
would be taking one hell of a risk.” Letter dated 10/10/16. Further, his
attorney told Tres the choice was up to him and also advised him to get a
second opinion. Tres chose to voluntarily enter a plea.
In sum, Tres has failed to establish that plea counsel’s advice was not
“within the range of competence demanded of attorneys in criminal cases.”
Orlando, supra. Thus, I agree with the Majority that because Tres’ attorney
did not render ineffective assistance of counsel, no PCRA evidentiary hearing
was necessary and Tres’ appellate issues merit no relief.
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1During the oral colloquy, Tres was aware that he faced potential 10-20 years
of incarceration if convicted on all of the charges against him.
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