Com. v. Smith, M.

J-S44016-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW RUSSELL SMITH :
:
Appellant : No. 833 MDA 2020

Appeal from the Judgment of Sentence Entered October 29, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0002063-2017

BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY NICHOLS, J.: FILED MARCH 8, 2021

Appellant Matthew Russell Smith appeals nunc pro tunc from the

judgment of sentence imposed after a jury found him guilty of one count each

of delivery of a noncontrolled substance, possession with intent to deliver a

noncontrolled substance, and criminal use of a communications facility.1

Appellant claims that the trial court erred in denying his motion to suppress

identification evidence and exclude evidence obtained from his cell phone. We

affirm.

The record establishes the following background to Appellant’s

convictions. On December 6, 2017, Pennsylvania State Police Trooper Tyler

Morse worked with an informant to arrange a controlled purchase of crack

cocaine from an individual known as “Mike.” N.T. Omnibus Mot. Hr’g, 6/18/18,

____________________________________________

1 35 P.S. § 780-113(a)(35) and 18 Pa.C.S. § 7512(a) respectively.
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at 26. The informant called a phone number ending in 6609 and spoke to an

unidentified male in order to schedule a purchase of $200 of “hard,” or crack

cocaine. N.T. Trial, 8/8/18, at 29; N.T. Omnibus Mot. Hr’g at 26.

Trooper Morse drove the informant to the scheduled meeting location.

Once there, the informant called the 6609 number and received additional

instructions to meet in front of a nearby bar. The trooper drove the informant

to a location near the bar and provided the informant with $200 in prerecorded

currency. The informant exited the trooper’s vehicle and walked to the

meeting location. The trooper and his undercover surveillance team lost sight

of the informant. According to Trooper Morse, the informant called him

several minutes later and indicated that “it[ was not] Mike today” and that she

purchased drugs from “a light-skinned black male, wearing a blue Gap hooded

sweatshirt and blue sweatpants.” N.T. Omnibus Mot. Hr’g at 27. Trooper

Morse relayed the description to his backup.

Pennsylvania State Police Trooper Daniel Denucci observed Appellant

within one minute of receiving Trooper Morse’s description. Appellant, a white

male, was wearing a blue running suit that matched the Trooper Moore’s

description. Trooper Denucci stated that Appellant started running as soon as

he saw the trooper’s unmarked vehicle. Trooper Denucci pursued Appellant

in his vehicle to a nearby residence. The trooper then exited his vehicle and

arrested Appellant as Appellant attempted to enter a residence. Trooper

Denucci searched Appellant and recovered $180 of the prerecorded buy

money and an iPhone. Further investigation revealed that the phone taken

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from Appellant was not listed as the 6609 phone number that the informant

used to arrange the purchase.

After advising Appellant of his Miranda rights, Trooper Morse

interrogated Appellant. During the interrogation, the trooper observed that

Appellant’s phone received several calls. Specifically, the trooper noticed that

the face of the phone displayed the incoming calls as Mike. Appellant denied

involvement in the sale asserting, in part, that he saw two people drop money

on the street and he picked it up. Trooper Morse filed a criminal complaint

against Appellant on December 6, 2017.

The following day, Trooper Morse presented the informant with a photo

array. The informant identified Appellant’s picture as the person who sold her

the cocaine within thirty seconds. The informant later testified she had seen

Appellant twenty to thirty times before the present incident.

Appellant’s trial counsel, Andrea Pulizzi, Esq. (trial counsel) entered her

appearance on December 29, 2017. Appellant filed an omnibus pretrial

motion seeking the suppression of the informant’s identification. Following a

hearing, the suppression court, with the Honorable Marc F. Lovecchio

presiding, denied the motion to suppress the identification. The trial court

scheduled a jury trial for August 8, 2018.

The record suggests that on August 3, 2018, Trooper Morse obtained a

search warrant for Appellant’s cell phone. Trooper Morse executed the

warrant and took pictures of the phone’s contact information and call log. The

pictures showed contact information for Mike using the 6609 number and that

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Appellant received incoming calls consistent with the phone calls made by the

informant to arrange the purchase.

Immediately before trial on August 8, 2018, Appellant’s trial counsel

moved to preclude the Commonwealth from admitting evidence from

Appellant’s phone. Following arguments on the motion, the trial court, with

the Honorable Dudley N. Anderson presiding,2 construed Appellant’s motion

as a motion to exclude evidence due to a discovery violation and denied it.

The trial court offered Appellant a continuance, which Appellant rejected.

Appellant did not request a separate suppression hearing.

At trial, the Commonwealth called the informant, who testified against

Appellant and identified him in court, and Trooper Morse, among other

witnesses. Trooper Morse testified using the photographs of Appellant’s phone

but did not inform the jury that he observed Mike calling during Appellant’s

interrogation. The jury found Appellant guilty of all charges.

On October 29, 2018, the trial court sentenced Appellant to serve an

aggregate eighteen to thirty-six months’ imprisonment. Appellant’s trial

counsel did not file a direct appeal.

Appellant, through present counsel, filed a Post Conviction Relief Act

(PCRA) petition seeking reinstatement of his direct appeal rights, which

President Judge Nancy L. Butts granted on May 29, 2020. Appellant filed a

____________________________________________

2 Judge Anderson also presided over sentencing.

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notice of appeal nunc pro tunc and complied with President Judge Butts’ order

to file and serve a Pa.R.A.P. 1925(b) statement.

President Judge Butts filed a Rule 1925(a) opinion that incorporated the

suppression court’s findings of fact and conclusions of law in support of

denying Appellant’s motion to suppress the informant’s identification and the

trial court’s ruling on Appellant’s pretrial motion. The Rule 1925(a) opinion

also addressed Appellant’s argument that he was entitled to suppress the

information from his cell phone and concluded no relief was due under

Pa.R.Crim.P. 573. Moreover, the Rule 1925(a) opinion noted that “even if trial

counsel filed a motion to suppress the cellphone evidence, the motion would

have been meritless.” Rule 1925(a) Op., 6/17/20, at 3.

Appellant presents the following questions for review:

1. Did the suppression court err in denying Appellant’s motion to
suppress identification when the . . . informant described him
as a light-skinned black male?

2. Did the [trial] court abuse its discretion in denying Appellant’s
motion to exclude cell phone evidence captured pursuant to a
search warrant issued a few days prior to trial?

Appellant’s Brief at 6 (some formatting altered).

1. Identification Evidence

Appellant contends that the suppression court erred in denying his

motion to suppress the informant’s identification of him from a photo array.

Appellant emphasizes that the informant initially described the person who

sold her the drugs as a light-skinned black male, but then stated she was not

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certain of the individual’s race. Id. at 14. Appellant further argues that he

was the only individual in the array that appeared bi-racial, while the

remaining individuals appeared Caucasian. Id. at 13-14. Additionally,

Appellant asserts that the informant identified him based on a brief exchange.

Id. at 15.

The Commonwealth responds that the suppression court properly

denied Appellant’s relief because the array was not suggestive.

Commonwealth’s Brief at 10-11. The Commonwealth further notes that there

was no basis to exclude the informant’s in-court identification of Appellant.

Id. at 12-13.

This Court recently summarized the principles governing our review:

When reviewing the propriety of a suppression order, an
appellate court is required to determine whether the record
supports the suppression court’s factual findings and
whether the inferences and legal conclusions drawn by the
suppression court from those findings are appropriate.
Where the Commonwealth prevailed in the suppression
court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense
as remains uncontradicted when read in the context of the
record as a whole. Where the record supports the factual
findings of the suppression court, we are bound by those
facts and may reverse only if the legal conclusions drawn
therefrom are in error. However, where the appeal of the
determination of the suppression court turns on allegations
of legal error, the suppression court’s conclusions of law are
not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied the law
to the facts.

A court must assess the reliability of an out-of-court identification
by examining the totality of the circumstances. A pre-trial
identification will not be suppressed as violative of due process

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unless the facts demonstrate that the identification procedure was
so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification. The reliability of an out-
of-court identification is determined by considering the totality of
the circumstances, including, inter alia, the following specific
factors: (1) the witness’ ability to observe the criminal act; (2) the
accuracy of the photo array selection and other descriptions; (3)
the lapse of time between the act and any line-up; and (4) any
failure to identify the defendant on prior occasions. The purpose
of a suppression order regarding exclusion of identification
evidence is to prevent improper police action. Thus, where a
defendant does not show that improper police conduct resulted in
a suggestive identification, suppression is not warranted.

Additionally, even if an out-of-court identification is suggestive,
an in-court identification is admissible if there exists an
independent basis for the identification. An independent basis is
established when the in-court identification resulted from the
criminal act and not the suggestive identification procedure. To
determine if an identification resulted from the criminal act and,
therefore, has an independent basis, the trial court must consider
the following factors:

The opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention, the
accuracy of the witness’ prior description of the criminal, the
level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime and
the confrontation.

Commonwealth v. Russell, 209 A.3d 419, 430-31 (Pa. Super. 2019)

(citations omitted and formatting altered), appeal denied, 218 A.3d 862 (Pa.

2019).

Instantly, the suppression court addressed Appellant’s claim as follows:

Despite [Appellant]’s argument to the contrary, there is no
evidence that the photographs in the array or the procedures
utilized in presenting it to [the informant] were unduly suggestive.

* * *

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The totality of the circumstances do not demonstrate that the
procedure was so impermissibly suggestive as to give rise to any
likelihood of misidentification, let alone a substantial likelihood of
such. The array was comprised by the random selection of
photographs from a computer. While Trooper Morse selected what
photographs would be actually utilized in the array, all of the
utilized photographs were similar to [Appellant]’s appearance in
terms of skin color, facial hair, hairstyle, nose and eyes. The
court’s view of the entirety of the facial characteristics of the
individuals taken together does not lead the court to believe that
there was any suggestiveness whatsoever. While [Appellant]
argues that he is the only mixed [race] individual in the array,
such claim belies his statement to Trooper Morse that he was
white. Moreover, his picture is substantially similar in skin tone
to the other individuals in the photo array. He does not, as
[Appellant] claims, appear to be the only mixed [race] individual
in the array.

As well, there is nothing whatsoever suggestive about how
Trooper Morse presented the array. He did not point to any
particular individuals, he did not say anything that would point to
a particular individual, and he did not suggest that the individual
involved was in fact in the photograph. Moreover, [the informant]
identified [Appellant] immediately, leading the court to conclude
that she was not pressured or influenced by Trooper Morse in any
manner whatsoever.

Suppression Ct. Op. & Order, 6/27/18, at 4-5 (citations omitted).

The suppression court further opined:

Even assuming that there may have been some suggestive pretrial
identification which is not the case, the court concludes that any
in-court identification of [Appellant] by [the informant] clearly had
an origin independent of any suggestive pretrial investigation.
[The informant] was easily able to identify [Appellant], who she
had purchased controlled substances from in the recent past
twenty to thirty times. She knew who [Appellant] was and she
immediately recognized him once the photo array was presented
to her. Furthermore, during the hearing in this matter, she clearly
identified [Appellant] and indicated that her basis for identifying
[Appellant] was that he was the one who sold her the drugs (non-
controlled substances) on the date in question and he was the one
who had sold her drugs countless times in the prior months.

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Id. at 6.

We have reviewed the evidence presented by the Commonwealth, as

well as the photographic array, and as much of Appellant’s evidence that was

uncontradicted in the suppression record. See Russell, 209 A.3d at 430-31.

We conclude that the record supports the suppression court’s findings of fact

and its legal conclusions rejecting Appellant’s claim that the identification

procedures were overly suggestive. See id.; see also Suppression Ct. Op. &

Order. at 4-6. Similarly, notwithstanding the quick nature transaction on this

occasion and the possibility that the informant misidentified Appellant’s race,

we agree that that the informant had an independent basis for her in-court

identification of Appellant. See Russell, 209 A.3d at 430-431; see also

Suppression Ct. Op. & Order at 6. Accordingly, Appellant’s challenge to the

suppression court’s rulings lack merit.

2. Evidence from Appellant’s Phone

Appellant next challenges the admission of evidence from his cell phone.

By way of background to Appellant’s challenges to the cell phone evidence,

we reiterate that trial counsel argued this issue when litigating the motion to

preclude the Commonwealth from presenting evidence. On the day of trial,

the trial court heard arguments on the motion. Appellant’s trial counsel

asserted:

When [Appellant] was arrested. On the date of his arrest they
noticed on his cell phone a Mike was calling, which was the same
name of the target, which they had been going after that day with
the [the informant]. Shortly after the preliminary hearing, I filed
a request for discovery. I received discovery, I filed a motion to

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suppress some other issues. I never received this [referring to
the results of the search warrant] until basically the eve of trial.

* * *

[T]hey never applied for the search warrant until last Friday, which
was approximately five days before trial. They had that phone in
their possession and the reason for going through it back on
December 6th. I -- I’m quite unclear as to why they couldn’t have
conducted this search back on December giving me the discovery
with the other discovery so I could have included this possible
suppression motion with my other motions. I mean, full -- it’s
clear that they cannot look at the phone, they can’t go through
the call logs, they can’t use anything in that phone without a
search warrant.

* * *

I think he [Trooper Morse] needed a search warrant to use
anything that he saw on that phone. He had no right to even look
at the phone when it was ringing until he had a search warrant.

N.T. Trial at 4-6.

Following further exchanges between Appellant’s trial counsel and the

trial court, the trial court asserted that it did not believe Detective Morse

needed a warrant to observe the incoming calls during Appellant’s

interrogation. Id. at 7. The trial court also indicated that Appellant could

have sought suppression of evidence that Trooper Morse observed Mike calling

during the interrogation. Id. at 8, 17-18.

During its response, the Commonwealth cited Pa.R.Crim.P. 573 and

Commonwealth v. Belani, 101 A.3d 1156 (Pa. Super. 2014), arguing:

[I]f there is a remedy here -- and we don’t think there has been
any violation, we don’t think that defense suffered any prejudice
other than this evidence intends to make [Appellant] more guilty.
If there has been a violation here and the -- and they really want
to pursue this -- and I can tell them right now, that Mike that we

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believe is the caller is in the Lycoming County Prison . . . . If
[Appellant] wants to interview him, if [Appellant] wants to argue
the suppression motion, we can do that right now. The trooper’s
here. Or at the very most, [Appellant] is entitled to request a
continuance. We will not oppose it, but outright, exclusion of the
evidence is --[interruption].

Id. at 12-14.

The trial court ultimately ruled:

Look, I don’t like what happened. I -- I sympathize with both you
[trial counsel] and [Appellant] in the -- in the timing on this and
there is an unfairness that absolutely occurs. Nobody will
convince me differently. The exclusion of this type of evidence is
an extraordinary form of relief and I believe that the
Commonwealth, although, it -- I agree with you, it could have
been done so much better that -- that the Commonwealth is on
all fours with it and therefore, I’m not going to exclude this
evidence.

Id. at 15-16. The trial court offered Appellant a continuance.

As noted above, Appellant’s trial counsel elected not to accept a

continuance. Id. at 16. Additionally, trial counsel did not request a

suppression hearing to consider Appellant’s arguments that (1) Trooper

Morse’s observations of Appellant’s phone during the interrogation constituted

a search requiring a search warrant, and (2) the search warrant was based on

Trooper Morse’s observations during the interrogation.3 See id. at 9, 16.

On appeal, Appellant argues the trial court should have excluded the call

logs indicating that Appellant received several calls from the 6609 phone

____________________________________________

3We collectively refer to Trooper Morse’s observations of Appellant’s phone
during the interrogation and the call logs obtained pursuant to the search
warrant as the “cell phone evidence.”

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number shortly before the sale to the informant on three grounds. Appellant’s

Brief at 17-25. First, Appellant cites principles governing motions in limine to

argue that the evidence was prejudicial in light of the late decision to obtain

a search warrant. Id. at 17. Second, Appellant contends that Trooper Morse’s

observation of the incoming call information during the interrogation on

December 6, 2017, constituted a search in violation of Riley v. California,

573 U.S. 373 (2014), and Commonwealth v. Fulton, 179 A.3d 475 (Pa.

2018). Id. at 18-22. Third, Appellant contends that there is clear record

support for finding trial counsel ineffective for not preserving suppression

issues or requesting a continuance. Id. at 22-25.

The Commonwealth responds that Appellant fails to establish prejudice

resulting from the late application for a search warrant and discovery of the

information obtained from Appellant’s phone shortly before trial.

Commonwealth’s Brief at 14-17. The Commonwealth discusses Belani in

support of its contention that the trial court properly refused to exclude the

evidence. Id. at 15-16. Second, the Commonwealth contends that Fulton

and Riley are distinguishable and that Trooper Morse’s observation that Mike

called during the interrogation did not constitute a search requiring a warrant.

Id. at 17-23. Third, the Commonwealth contends that Appellant’s claim of

ineffectiveness must fail because the underlying suppression claim lacked

merit and any error in admitting the evidence was harmless. Id. at 24-27.

We separately address the arguments that (a) the trial court should

have excluded the cell phone evidence based on delay, (b) he was entitled to

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suppression of the cell phone evidence, and (c) he is entitled to relief based

on trial counsel’s ineffectiveness.

(a) Delay Concerning the Search Warrant

Pennsylvania Rule of Criminal Procedure 573 provides,4 in part, as

follows:

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
might obtain under this rule, the Commonwealth shall disclose to
the defendant’s attorney all of the following requested items or
information, provided they are material to the instant case. The
Commonwealth shall, when applicable, permit the defendant’s
attorney to inspect and copy or photograph such items.

* * *

____________________________________________

4 We acknowledge that Appellant refers to the standard of governing a motion
in limine to discuss prejudice and does not discuss Pa.R.Crim.P. 573. See
Appellant’s Brief at 17. While this Court has indicated that a motion in limine
is similar to ruling on a motion to suppress evidence, the distinction between
the two is significant, because an evidentiary abuse of discretion standard
applies to a motion in limine. See Commonwealth v. Zugay, 745 A.2d 639,
645 (Pa. Super. 2000). Here, Appellant’s claims of prejudice do not concern
the prejudice standards of an evidentiary ruling, although this Court may
consider whether the admission of evidence is harmless. See
Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (noting that
“evidence is only admissible where the probative value of the evidence
outweighs its prejudicial impact[,]” but noting that where the admission of
evidence is erroneous the error may be deemed harmless (citation omitted)).
Instead, Appellant argues prejudice in light of the late disclosure of evidence
and the Commonwealth’s lack of diligence in its prosecution, which more
directly implicates the due process standards of prejudice embodied in Rule
573. See Appellant’s Brief at 17 (noting that “the Commonwealth provided
no reasonable explanation for why the search warrant was not executed
earlier”).

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(f) any tangible objects, including documents, photographs,
fingerprints, or other tangible evidence

* * *

(D) Continuing Duty to Disclose. If, prior to or during trial,
either party discovers additional evidence or material previously
requested or ordered to be disclosed by it, which is subject to
discovery or inspection under this rule, or the identity of an
additional witness or witnesses, such party shall promptly notify
the opposing party or the court of the additional evidence,
material, or witness.

(E) Remedy. If at any time during the course of the proceedings
it is brought to the attention of the court that a party has failed to
comply with this rule, the court may order such party to permit
discovery or inspection, may grant a continuance, or may prohibit
such party from introducing evidence not disclosed, other than
testimony of the defendant, or it may enter such other order as it
deems just under the circumstances.

Pa.R.Crim.P. 573(B)(1)(f), (D), (E).

The purpose of the discovery rules is to prevent a trial by ambush that

violates a defendant’s right to due process. Commonwealth v. Ulen, 650

A.2d 416, 419 (Pa. 1994). If the Commonwealth commits a discovery

violation, “[t]he trial court has broad discretion in choosing the appropriate

remedy . . . .” Commonwealth v. Brown, 200 A.3d 986, 993 (Pa. Super.

2018) (citation omitted). However, such “discretion is not unfettered.”

Commonwealth v. Smith, 955 A.2d 391, 395 (Pa. Super. 2008) (en banc)

(citation omitted). This Court has suggested that in most cases, “[a]

continuance is appropriate where the undisclosed statement or other evidence

is admissible and the defendant’s only prejudice is surprise.” Id. (citation

omitted).

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In Belani, the defendants were arrested in 2009, but the

Commonwealth did not begin to seek DNA testing until 2012, approximately

two months before a scheduled trial date listed as “must be tried.” Belani,

101 A.3d at 1158. The trial court ultimately granted a continuance of trial,

and the Commonwealth provided the DNA reports to the defense three days

before the rescheduled trial date. Id. 1158-59. The defense moved to

preclude the Commonwealth from presenting the DNA evidence. The trial

court in that case granted the defendants’ motion. Id. This Court reversed.

Id. at 1163.

The Belani Court noted that the trial court essentially excluded the

evidence because “if the Commonwealth had sought testing earlier, it would

have received its expert’s report sooner” and the defense did not have time

to obtain its own expert. Id. at 1159-60. This Court rejected that reasoning,

noting that the defense did not object when the Commonwealth obtained a

court order in 2012 to have the defendants submit to DNA swabs, the

Commonwealth had explained in delays in testing in 2012, and the

Commonwealth introduced evidence that it attempted to expedite the

analysis. Id. at 1161-63. The Commonwealth further noted that the

prosecutor was assigned the case in 2012 and did not know why the former

prosecutor had not requested DNA testing. Id. at 1163.

The Belani Court concluded:

[T]he trial court’s order excluding the DNA evidence pertaining to
[the defendants] must be reversed. Pa.R.Crim.P. 573 lacks any
provision authorizing the exclusion of evidence and does not

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require that the Commonwealth perform scientific testing in a
specified time frame. Further, the proper remedy for “late”
disclosure should have been authorization of a defense
continuance; alas, none was requested.

Id. at 1163.

Following our review of the record and the relevant law, we conclude

that the trial court did not abuse its discretion. The trial court acknowledged

that the Commonwealth’s delay in seeking a search warrant for Appellant’s

resulted in an “unfair” situation and that the Commonwealth could “do better.”

Nevertheless, relying on Belani, the court concluded that the lateness of

obtaining the report would warrant a continuance, rather than the more

extraordinary remedy of excluding the evidence. As the record supports the

trial court’s findings and the court’s determination of a possible remedy were

both reasonable and supported by case law, we conclude Appellant’s first

argument to exclude the cell phone evidence fails.

(b) Suppression

It is well settled that to preserve a suppression claim, a defendant must

“state specifically and with particularity the evidence sought to be suppressed,

the grounds for suppression, and the facts and events in support thereof.”

Pa.R.Crim.P. 581(D); cf. Commonwealth v. Carter, 234 A.3d 729, 734 (Pa.

Super. 2020). It then becomes the burden of the Commonwealth to establish

that the challenged evidence was not obtained in violation of the defendant’s

rights at a hearing. Pa.R.Crim.P. 581(H); cf. In re L.J., 79 A.3d 1073, 1086

(Pa. 2013). As our Supreme Court held, the scope appellate review of a

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suppression ruling is generally limited to the record developed at a

suppression hearing. L.J., 79 A.3d at 1085.

Instantly, at the hearing on his motion to exclude, Appellant argued that

the cell phone evidence generally should be suppressed when discussing his

motion to exclude the evidence. We acknowledge that the trial court

expressed considerable doubt as to whether Trooper Morse’s observations of

Appellant’s phone during the interrogation required a warrant and did not

expressly state that Appellant could seek suppression of the search warrant

for the contents of the phone. Nonetheless, despite the Commonwealth’s

willingness to proceed to a suppression hearing, Appellant did not request one.

Therefore, the trial court did not expressly rule on Appellant’s present

suppression issue, and the record contains no evidence on which to review

Appellant’s suppression claim.5

Following our review, we conclude Appellant’s failure to insist upon a

hearing deprived the Commonwealth with the opportunity to carry its burden

of establishing that this evidence was not obtained in violation of his rights.

See Pa.R.Crim.P. 581(H); L.J., 79 A.3d at 1086. Accordingly, Appellant’s

claim that the trial court erred by not suppressing the cell phone evidence

merits is waived for the purpose of this appeal.

____________________________________________

5 For example, although the Commonwealth included a copy of Trooper
Morse’s affidavit of probable cause as an attachment to its brief, the record
does not contain the application for the search warrant nor the trooper’s
affidavit of probable cause. Moreover, as noted below, Appellant does not set
forth any arguments based on the affidavit of probable cause.

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(c) Ineffectiveness

Apparently recognizing that trial counsel failed to preserve his

suppression claim before the trial court, Appellant also raises a claim of

ineffective assistance of counsel in this appeal.

Generally, a criminal defendant may not assert claims of ineffective

assistance of counsel on direct appeal. See Commonwealth v. Holmes, 79

A.3d 562, 577-80 (Pa. 2013). Instead, such claims are to be deferred to PCRA

review. Id. However, our Supreme Court has recognized three exceptions to

the general rule. In Holmes, the Supreme Court held that a trial court has

discretion to address ineffectiveness claims on direct review in cases where

(1) there are extraordinary circumstances in which trial counsel’s

“ineffectiveness is apparent from the record and meritorious to the extent that

immediate consideration best serves the interests of justice;” or (2) “there is

good cause shown” and the defendant knowingly and expressly waives his

entitlement to seek subsequent PCRA review of his conviction and sentence.

Holmes, 79 A.3d at 563-64. Our Supreme Court has adopted a third

exception, which requires “trial courts to address claims challenging trial

counsel’s performance where the defendant is statutorily precluded from

obtaining subsequent PCRA review.” Commonwealth v. Delgros, 183 A.3d

352, 361 (Pa. 2018).

Instantly, we note that at trial, Trooper Morse did not testify regarding

his observations of the incoming calls during Appellant’s interrogation.

Therefore, standing alone, Appellant’s ineffectiveness claim concerning the

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suppression of those observations is not meritorious as to require immediate

review in this direct appeal. See Holmes, 79 A.3d at 563-64.

We acknowledge that Appellant further asserts that trial counsel was

ineffective for failing to challenge the search warrant that Trooper Morse

obtained before trial. See Appellant’s Brief at 24. We also note that the

Commonwealth does not dispute that the affidavit of probable cause included

a reference to the trooper’s observations of Appellant’s cell phone during the

interrogation. See Commonwealth’s Brief at 19-20, 19 n.7. Nonetheless,

Appellant has failed to develop any argument that the asserted taint of

Trooper’s observation invalidated the search warrant constitutes a fruit of a

poisonous tree. See Appellant’s Brief at 24 (noting only that “actual prejudice

resulted from [trial] counsel’s failure to act because it resulted in the issuance

of a search warrant for the phone”). But see Commonwealth v. Katona,

240 A.3d 463, 483 (Pa. 2020) (reviewing affidavit of probable cause to

determine whether the magistrate had probable cause to issue the warrant

when it was stripped of references to allegedly improper recordings);

Commonwealth v. Shabezz, 166 A.3d 278, 290 (Pa. 2017) (noting that

“[e]vidence constitutes fruit of the poisonous tree, and must be suppressed,

if it was obtained by ‘exploitation’ of the illegality, and so long as the taint

of that illegality has not been purged” (citation omitted and emphasis

added)); Commonwealth v. Lodis, 543 A.2d 1226, 1230 (Pa. Super. 1988)

(rejecting an ineffectiveness claim for failure to seek suppression of evidence

because the police would have discovered the evidence independently).

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Therefore, we are constrained to conclude that Appellant has not

established extraordinary circumstances warranting consideration of his

ineffectiveness claims in this direct appeal. See Holmes, 79 A.3d at 563-64.

However, even if this Court were to consider Appellant’s ineffectiveness

claims, he has not established a basis for relief. It is well settled that on direct

appeal, as in a collateral proceeding, a defendant must still carry his burden

of proving his claim of ineffectiveness. Specifically, a defendant “must show,

by a preponderance of the evidence, ineffective assistance of counsel which,

in the circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa.

Super. 2007) (citation omitted). The burden is on the defendant to prove all

three of the following prongs: “(1) the underlying claim is of arguable merit;

(2) that counsel had no reasonable strategic basis for his or her action or

inaction; and (3) but for the errors and omissions of counsel, there is a

reasonable probability that the outcome of the proceedings would have been

different.” Id. (citation omitted); see also Commonwealth v. Daniels, 963

A.2d 409, 419 (Pa. 2009). “Boilerplate allegations and bald assertions of no

reasonable basis and/or ensuing prejudice cannot satisfy a petitioner[’]s

burden to prove that counsel was ineffective.” Commonwealth v. Sneed,

45 A.3d 1096, 1106 (Pa. 2012) (citation omitted and some formatting

altered). Moreover, “[a] failure to satisfy any prong of the ineffectiveness test

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requires rejection of the claim of ineffectiveness.” Daniels, 963 A.2d at 419

(citation omitted).

Instantly, aside from boilerplate assertions that the cell phone evidence

“clearly contributed to the verdict” by connecting him to Mike and the

informant, Appellant fails to establish prejudice by showing that the trial’s

outcome would have been different. See Appellant’s Brief at 24-25. For

example, Appellant fails to discuss the trial evidence, which included the

informant’s unwavering in-court identification of Appellant as the individual

who sold her the drugs, the informant’s testimony that she was in continuous

contact with an unknown male by phone immediately before the purchase,

and Appellant’s possession of the prerecorded buy money. Further, as

discussed above, Appellant does not discuss whether a court would have

upheld the search warrant if the allegedly improper reference to Trooper

Morse’s observations were stricken from the affidavit of probable cause. Cf.

Katona, 240 A.3d at 483. Therefore, because Appellant has failed to establish

prejudice resulting from his ineffectiveness claims, no relief would be due.

See Sneed, 45 A.3d at 1106; Daniels, 963 A.2d at 419.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/08/2021

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