J-S57026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                          Appellee

                     v.

KEITH DAVID PETERKIN

                          Appellant                    No. 173 MDA 2019


          Appeal from the PCRA Order Entered November 20, 2018
              In the Court of Common Pleas of Centre County
               Civil Division at No.: CP-14-CR-0001358-2015


BEFORE: BOWES, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                       FILED DECEMBER 20, 2019

      Appellant Keith David Peterkin pro se appeals from the November 20,

2018 order entered in the Court of Common Pleas of Centre County (“PCRA

court”), which denied his request for collateral relief under the Post Conviction

Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

      The facts and procedural history of this case are undisputed.           As

recounted by a prior panel of this Court on direct appeal:

             On July 31, 2015, Troopers Aaron Tiracorda and Christopher
      Pifer were on a midnight traffic detail with a police dog, K9 Officer
      Tom.     At approximately 2:30 a.m., the troopers observed
      suspected illegal window tint on Appellant’s vehicle, in violation of
      75 Pa.C.S.A. § 4524. Trooper Tiracorda activated his emergency
      lights and spotlight to conduct a traffic stop. Appellant did not
      immediately stop; he continued to drive for over one minute
      before pulling over

            The troopers approached Appellant’s vehicle and questioned
      him about his travels that early morning. Appellant was sweating
      profusely, became increasingly nervous throughout the
      interaction, and employed “stall tactics” when answering the
      troopers’ questions: he was evasive, would not immediately
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     answer, and provided vague, uncertain answers. N.T., 1/8/2016,
     at 19.

            Trooper Pifer conducted a check of the National Crime
     Information Center (NCIC) database from the patrol vehicle while
     Trooper Tiracorda remained with Appellant. At this time, Trooper
     Tiracorda detected the odor of raw marijuana emanating from the
     interior of Appellant’s vehicle. Trooper Tiracorda returned to the
     patrol vehicle and notified Trooper Pifer of the smell. The troopers
     returned to Appellant’s vehicle, and Trooper Pifer also detected
     the odor of marijuana.

            Trooper Pifer asked Appellant to exit the vehicle so that
     Trooper Pifer could explain the warning for the window tint
     violation.   Appellant hesitated before reluctantly exiting the
     vehicle. The troopers questioned Appellant about the smell of
     marijuana coming from his vehicle. Appellant initially denied the
     presence of marijuana in the vehicle, but after several more
     questions from the troopers, he acknowledged that there was a
     small amount of marijuana in the vehicle. Appellant was patted
     down and placed in handcuffs for officer safety.

           Trooper Tiracorda conducted a “pre-search” of the vehicle
     to ensure the vehicle was safe for K9 Officer Tom. Id. at 23.
     During    this   pre-search,    Trooper    Tiracorda   recovered
     approximately $12,000 and a small amount of marijuana from
     within the center console. K9 Officer Tom searched the vehicle;
     he alerted the troopers and “indicated on” the center console
     where the marijuana was found and a birthday present bag
     located in the backseat. Id. at 26. The bag was opened and
     found to contain approximately one pound of cocaine. The window
     tint was tested with a tint meter, and the reading indicated that
     only 22% of light could pass through the window.

            Appellant was arrested and charged with [possession with
     intent to deliver a controlled substance, possession of a small
     amount of marijuana, possession of a controlled substance, and
     possession of drug paraphernalia]. Appellant filed a motion to
     suppress, in which he alleged that the initial traffic stop was illegal,
     the search of the vehicle was illegal, and any statements made
     during the stop were not rendered voluntarily, knowingly, and
     intelligently, in violation of Miranda v. Arizona, 384 U.S. 436
     (1966).

            After a hearing, his motion to suppress evidence was
     denied. The trial court held that the troopers had reasonable
     suspicion to conduct the traffic stop due to the window tint
     violation, and that the odor of marijuana and Appellant’s
     admission to the presence of marijuana in the vehicle created
     probable cause for the troopers to search the vehicle. Trial Court
     Opinion, 2/19/2016, at 3-5.
           Appellant’s motion to suppress statements was granted in
     part and denied in part. In addressing Appellant’s motion to

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      suppress statements, the trial court separated the interaction
      between Appellant and the troopers into four periods:

            (1) the period from the start of the traffic stop until
            the initiation of the repetitive questioning of
            [Appellant] regarding marijuana in the vehicle (“How
            much do you have in the car? Did you smoke before
            you left?”); (2) the period from the start of the
            repetitive questioning until the officers notify
            [Appellant] that he is under arrest and give
            [Appellant] an incomplete Miranda warning; (3) the
            period between the arrest and incomplete Miranda
            warning and the second complete Miranda warning
            and; (4) the period after the complete Miranda
            warning.

      Id. at 8. The trial court held that Appellant’s statements in
      segments (1) and (4) were admissible, but those in segments (2)
      and (3) were not. Notably, the admission to the presence of a
      small amount of marijuana occurred during segment (2), and was
      deemed inadmissible.

            Thereafter, Appellant was convicted following a stipulated
      nonjury trial and sentenced [to four and one-half to nine years of
      imprisonment]. Appellant timely filed a notice of appeal. [Both
      Appellant and the trial court complied with Pa.R.A.P. 1925.]

Commonwealth        v.   Peterkin,    No.   485    MDA    2017,    unpublished

memorandum, at 1-5 (Pa. Super. filed November 21, 2017) (footnote

omitted). On appeal, Appellant argued only that the trial court erred in failing

to suppress the results of the illegal search of his vehicle. We disagreed. In

so doing, we determined:

      the totality of the circumstances demonstrates that the troopers
      still had probable cause to believe that an offense had been
      committed, namely: (1) the illegally tinted windows; (2)
      Appellant’s delayed response to the troopers initiating a traffic
      stop; (3) Appellant’s evasiveness and stalling tactics when
      answering the troopers’ basic questions; (4) Appellant’s increased
      nervousness; (5) Appellant’s profuse sweating; (6) the smell of
      marijuana emanating from Appellant’s vehicle; and (7) Appellant’s
      hesitation to exit the vehicle to receive a warning.         These
      circumstances, viewed in the aggregate, would cause a reasonable
      officer to believe that Appellant possessed contraband in the
      vehicle.




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Peterkin, supra, at 7-8.          On April 10, 2018, our Supreme Court denied

Appellant’s petition for allowance of appeal. Commonwealth v. Peterkin,

184 A.3d 144 (Pa. 2018).

       On May 3, 2018, Appellant pro se filed the instant timely first PCRA

petition, challenging the legality of the underlying traffic stop and the resulting

search of his vehicle. On July 11, 2018, the PCRA court appointed counsel.

On August 14, 2018, the Commonwealth filed an answer to Appellant’s PCRA

petition, asserting that Appellant previously litigated the issue raised in his

PCRA petition. See Commonwealth’s Answer, 8/14/18, at 3 (unpaginated).

On September 17, 2018, appointed counsel filed a no-merit letter under

Turner/Finley1 and petitioned to withdraw from the case. The PCRA court

granted counsel’s petition on September 19, 2018. On the same day, the

PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition

without a hearing. The court directed Appellant to respond to the Rule 907

notice within twenty days.2 Appellant responded. On November 14, 2018,

the PCRA court denied Appellant PCRA relief. On November 20, 2018, the

PCRA court vacated its November 14, 2018 order because it contained pages

of, and references to, another, unrelated case and reissued a corrected order
____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2 In September 19, 2018 Rule 907 order, the PCRA court committed a
typographical error by referring to appointed counsel by a different last name.
See PCRA Court Opinion, 11/20/18 at 3 (acknowledging the typographical
error).



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and opinion.       Appellant pro se timely appealed.     The PCRA court directed

Appellant to file a Rule 1925(b) statement of errors complained of on appeal.

Appellant complied, raising eight assertions.3 In response, the PCRA court

issued a Rule 1925(a) opinion, concluding that Appellant’s claims do not merit

relief.     Specifically, the court noted that only Appellant’s “first and fifth

allegations of error pertain to the PCRA proceedings” and that his “second,

third, fourth, six, seventh, and eighth” assertions of error “have either been

fully litigated or have been waived by failure to previously raise them” pre-

trial, during trial and after trial. PCRA Court Opinion, 3/11/19, at 1.

          On appeal,4 Appellant presents the following issues for our review, which

we quote from the argument section of his brief.5

          [I.] Is the court’s dismissal of Appellant’s PCRA petition and
          granting of appointed counsel leave to withdraw valid when Judge

____________________________________________


3 Specifically, Appellant challenged (1) the PCRA court’s decision to dismiss
his petition without a hearing and granting appointed counsel’s petition to
withdraw; (2) the trial court’s denial of his suppression motion and the
discretionary aspects of his sentence insofar as he claims that the sentence
imposed was harsh; (3) the prosecutor’s conduct during trial; (4) the reasons
underlying the traffic stop; (5) the effectiveness of his trial, appellate and
PCRA counsels; (6) the weight of the evidence supporting his conviction; (7)
the sufficiency of the evidence supporting his conviction; and (8) the legality
of his sentence.
4“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).
5We note with disapproval that Appellant’s brief does not fully conform with
our rules of appellate procedure because it does not contain a statement of
questions involved, as required by Pa.R.A.P. 2116.

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      Brian K. Marshall failed to comply with procedures of the
      Pa.R.Crim.P. 907(1)[?]

      [II.] Did the court err in dismissing Appellant’s appointed PCRA
      attorney when Attorney provided ineffective assistance of counsel
      by failing to conduct thorough investigation and amend
      Appellant’s pro se petition[?]

      [III.] Was counsel during suppression hearing and the trial
      ineffective for failing to challenge and impeach evidence and
      testimony of police officers with evidence of misconduct, fraud and
      prior inconsistent statements[?]

      [IV.] Was counsel ineffective for failing to seek recusal of judge
      pending criminal proceedings and for not objecting to the same
      judge presiding over the suppression hearing and judge only
      trial[?]
      [V.] Did layered ineffective assistance of counsel victimize and
      prejudice Appellant during every single phase of his legal
      proceedings[?]

      [VI.] Did counsel’s failure to challenge the discretionary aspects
      of sentencing prejudice Appellant, depriving him of effective legal
      assistance, resulting in an excessive sentence[?]

      [VII.] Did counsel render ineffective assistance of counsel for
      failing to object to sentencing judge’s abuse of discretion,
      prosecutor’s submission of incorrect criminal history and
      imposition of excessive sentence[?]

Appellant Brief at 4, 7, 10, 14, 16, 17, 19 (unnecessary capitalizations

omitted).

      We begin our analysis by addressing Appellant’s third, fourth, sixth, and

seventh issues on appeal. In this regard, the Commonwealth points out that

these issues are waived because Appellant did not raise them before the PCRA

court. Upon our review of the record, as detailed above, we agree. Under

Pa.R.A.P. 302, “[i]ssues not raised in the lower court are waived and cannot

be raised for the first time on appeal.” Pa.R.A.P. 302(a).

      Similarly, we are constrained to agree with the Commonwealth that

Appellant’s second and fifth issues challenging the effectiveness of appointed

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counsel are waived.6 In Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super.

2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014), we explained that

“claims of PCRA counsel’s ineffectiveness may not be raised for the first time

on appeal.” Henkel, 90 A.3d at 20 (citations omitted).

       With the foregoing in mind, we now address the only issue that Appellant

has preserved for our review: whether the PCRA court failed to comply with

Rule 907(1) in dismissing Appellant’s PCRA petition.      Rule 907 provides in

relevant part:

       (1) the judge shall promptly review the petition, any answer by
       the attorney for the Commonwealth, and other matters of record
       relating to the defendant’s claim(s). If the judge is satisfied from
       this review that there are no genuine issues concerning any
       material fact and that the defendant is not entitled to post-
       conviction collateral relief, and no purpose would be served by any
       further proceedings, the judge shall give notice to the parties of
       the intention to dismiss the petition and shall state in the notice
       the reasons for the dismissal. The defendant may respond to the
       proposed dismissal within 20 days of the date of the notice. The
       judge thereafter shall order the petition dismissed, grant leave to
       file an amended petition, or direct that the proceedings continue.

Pa.R.Crim.P. 907(1). Here, no genuine issues concerning any material fact

were raised by Appellant’s PCRA petition and, as a result, the PCRA court

correctly determined that no purpose would be served by any further

proceedings or hearings.        Thus, as we set forth earlier, on September 19,
____________________________________________


6 Although we are aware of this Court's recent decision in Commonwealth v.
Shaw, 214 A.3d 283 (Pa. Super. 2019), we find it readily distinguishable. In
Shaw, this Court concluded that Shaw’s claim of PCRA counsel’s
ineffectiveness was not waived on appeal because prior PCRA counsel
“abandoned the only claim [Shaw] had presented at the PCRA hearing” by
failing to include it in Shaw’s Rule 1925(b) statement. Id. at 292-93. Here,
by contrast, except for the claims addressed below, Appellant did not preserve
the remaining claims by raising them in the PCRA court.

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2018, the PCRA court issued a Rule 907 notice, wherein it granted Appellant

twenty days to respond. Upon receiving and considering the response, the

PCRA court dismissed the petition on November 14, 2018.

      Under the facts and circumstances of this case, we do not discern any

error. Appellant had raised a single claim in his pro se PCRA petition, which

challenged a previously-raised suppression issue. A petitioner must plead and

prove his allegation of error has not been previously litigated or waived.

Commonwealth v. Bridges, 886 A.2d 1127, 1130 (Pa. 2005) (citing 42

Pa.C.S.A. § 9543(a)(3)). “A claim previously litigated in a direct appeal is not

cognizable under the PCRA.” Commonwealth v. Hutchins, 760 A.2d 50, 55

(Pa. Super. 2000). As mentioned, the suppression issue giving rise to the

instant PCRA petition was previously litigated pre-trial and on direct appeal.

Accordingly, the trial court did not err and, contrary to Appellant’s argument,

fully and properly complied with the requirements of Rule 907. Appellant,

therefore, is not entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2019




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