J-S06017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL STEVENS

                            Appellant                   No. 66 EDA 2014


                 Appeal from the PCRA Order December 6, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0803221-2005


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED SEPTEMBER 17, 2015

        Michael Stevens appeals from the trial court’s order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9564.1        On appeal, Stevens claims that he was entitled to an

evidentiary hearing on his amended PCRA petition. After careful review, we

affirm.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    An appellate court’s standard of review for an order denying post-
conviction relief is whether the record supports the PCRA court’s
determination, and whether the PCRA court’s determination is free of legal
error. Commonwealth v. Allen, 732 A.2d 582 (Pa. 1999). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164
(Pa. Super. 2001).
J-S06017-15



       On December 15, 2004, Stevens was charged with various drug

offenses following controlled drug buys involving a confidential informant

(CI) working with authorities. In January 2007, Stevens filed a motion to

suppress, claiming that the police lacked probable cause to stop and search

him; the trial court denied the motion. Following a bench trial, Stevens was

convicted of possession with intent to deliver (PWID), possession of a

controlled substance, and criminal conspiracy. On January 3, 2008, Stevens

was sentenced to 3-6 years of incarceration.2 Stevens filed a timely direct

appeal which was dismissed by this Court, on October 20, 2008, for failure

to file an appellate brief. On December 1, 2008, Stevens filed his first pro se

PCRA petition, seeking reinstatement of his direct appeal rights.      Counsel

was appointed and filed an amended brief on his behalf on June 30, 2009.

On September 1, 2009, the trial court reinstated Stevens’ appeal rights and,

on September 30, 2009, counsel filed an appeal nunc pro tunc. On May 6,

2011, our Court affirmed his judgment of sentence.

       On October 27, 2011, Stevens filed the instant pro se PCRA petition

alleging that counsel was ineffective for failing to challenge the denial of his

suppression motion on direct appeal. Counsel was subsequently appointed




____________________________________________


2
 The possession count merged with the PWID count and no further sentence
was imposed on the conspiracy conviction.




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J-S06017-15



and filed a Turner/Finley3 “no merit” letter.          Stevens filed a pro se

amended petition on November 15, 2013. On December 6, 2013, the court

granted counsel’s request to withdraw and dismissed Stevens’ petition

without a hearing. Stevens filed the instant appeal.

       On January 21, 2015,4 this Court remanded this case to the PCRA

court to determine if Stevens was eligible for PCRA relief at the time the

PCRA court ruled on his petition. See Commonwealth v. Pagan, 864 A.2d

1231 (Pa. Super. 2004) (under PCRA, petitioner who has finished serving

sentence at time court ruled on petition is not entitled to relief); see also 42

Pa.C.S. § 9543(a)(1)(i).         On May 28, 2015, the PCRA court issued the

following findings of fact, in response to our remand instructions:

       (1)    Defendant completed serving his 3 to 6 year sentence for
              PWID on February 4, 2014; and

       (2)    Defendant was still serving his sentence on December 6,
              2013, when the PCRA Court formally dismissed
              Defendant’s PCRA petition as without merit.




____________________________________________


3
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
4
  On April 28, 2015, the Commonwealth filed a petition for allowance of
appeal, from the denial of its petition for reargument filed in this Court,
following our panel’s January 21, 2015 remand decision. On July 2, 2015,
the Supreme Court dismissed the Commonwealth’s petition, holding that this
Court’s order was not final, as the panel had retained jurisdiction. See
Commonwealth v. Stevens, 43 EM 2015.



                                           -3-
J-S06017-15



Findings of Fact by the PCRA Court, 5/28/15.          Therefore, because at the

time the court ruled on Stevens’ petition he was eligible for relief under the

PCRA, we may address the merits of his issue on appeal.

      On appeal, Stevens contends that the PCRA court should have afforded

him a hearing on his petition which raised the issue of whether direct appeal

counsel was ineffective in not raising the claim that the trial court improperly

denied his pre-trial motion to suppress where the police had no probable

cause to arrest him and recover the items seized in his vehicle.

      There is no absolute right to an evidentiary hearing on a PCRA

petition. If the PCRA court can determine from the record that no genuine

issues   of   material   fact   exist,   then   a   hearing   is   not   necessary.

Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003); see also

Pa.R.Crim.P. 907 (PCRA court may dismiss petition without hearing where

judge is satisfied that there are no genuine issues concerning any material

fact and that defendant is not entitled to post-conviction collateral relief, and

no purpose would be served by any further proceedings).

      Here, the PCRA court determined that there was probable cause to

stop and arrest Stevens and search his vehicle where:              (1) officers had

observed a pattern of illegal narcotic sales with a CI on three occasions from

a house at 1213 Sydney Street; (2) on one of those occasions an officer

observed Stevens exchange something from his parked vehicle with a

person who had been standing on the front steps of the Sydney Street

house, moments before the CI emerged with crack cocaine from the same

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J-S06017-15



house; (3) $109 (including $20 in pre-recorded buy money) seized from the

front seat of Stevens’ car, of which he was the sole occupant, was in plain

view; and (4) officers secured a search warrant, following Stevens’ arrest,

before searching the car’s console.

      Therefore, because there was no merit to Stevens’ underlying

suppression claim, his ineffectiveness claims must also fail. Carelli, supra.

Moreover, because there is no genuine issue of material fact, the court

properly denied the petition without first holding a hearing.      Barbosa,

supra; Pa.R.Crim.P. 907.

      We rely upon the opinion, authored by the Honorable Daniel J. Anders,

in affirming the court’s order denying Stevens’ PCRA petition without a

hearing. We instruct the parties to attach a copy of Judge Anders’ decision

in the event of further proceedings in the matter.

      Order affirmed.

      President Judge Emeritus Bender joins the majority Memorandum.

      Justice Fitzgerald files a Concurring Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2015




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                 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                           FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                   TRIAL DIVISION - CRIMINAL

     COMMONWEALTH OF PENNSYLVANIA                                       CP-51-CR-0803221-2005

     vs.                                                               66 EDA 2014                 FILED
                                                                                                    JUL 1 6 2014
     MICHAEL STEVENS
                                                                                              Criminal Appeals Unit
                                                    OPINION                                First Judicial District of PA
             The post-conviction court dismissed Defendant's petition under the Post Conviction

     Relief Act ("PCRA"), 42_ Pa.C.S. §9541 et seq., without an evidentiary hearing after determining

     that the issues raised in the PCRA petition Jacked arguable merit. Defendant filed a timely appeal

     in which he argues that appellate counsel was ineffective for failing to preserve on appeal

    whether a motion to suppress was wrongly denied. For the reasons stated below, the Superior

    Court should affirm the dismissal of Defendant's PCRA petition.'

    FACTUAL BACKGROUND

            I.        Investigation Of Illegal Drug Sales At 1213 Sydney Street

            On December 8, 2004, and December 9, 2004, Philadelphia Police Officers Roosevelt

    Hagins and Douglas Robinson conducted confidential surveillances for illegal drug sales at 1213

    Sydney Street in Philadelphia, On both dates, the officers observed the same activity:

                  • At the direction of the officers, a confidential informant (C.I.) entered the house at
                    12.13
                    . . .
                          .Sydney
                              . Street to purchase crack cocaine with pre-recorded buy money.
                 •   An unknown person allowed the C.I. to enter 1213 Sydney Street.

                 •   A short time later, a vehicle arrived at 1213 Sydney Street and parked in front of
                     the house.

                 •   A male exited the front door of 1213 Sydney Street and approached the vehicle.


I
 Following the death of the Honorable Thomas Dempsey, this matter was administratively assigned to the
Honorable Daniel Anders for disposition.
                                                                                          Circulated 06/08/2015 01:30 PM




              •    The man from inside the house engaged in an exchange with the driver of the
                   vehicle.

              •    The vehicle drove away, and the male re-entered 1213 Sydney Street.

              •    A short time later, the C.I. exited the house and met with Officers Robinson and
                   Hagins.

              •    The officers recovered severaI packets containing crack cocaine from the C.I.

  N.T. 11/13/2007 at 9-10.

          On December 15, 2004, the officers observed the same actions that occurred on the two

  prior days of surveillance. At approximately 6:45pm on that night, Officer Hagins parked in front

  of 1213 Sydney Street and set up surveillance where he could see the front and side of the

 property; Officer Robinson parked at the rear of the property and set up surveillance where he

 could see-the sideof the property. At 6:50pm, the C.I. entered the residence through a side door

 with $20 in pre-recorded buy money. Shortly thereafter, Officer Robinson saw a black male exit

 the sidedoor of   the house, wait on the steps beneath that door, and look northbound.    Officer

 Hagins.saw a black male in a white t-shirtwaiting on the steps at that time. Id. at 8-11; 40, 43.

         At 6:55pm, Officer Hagins observed a black Pontiac sedan arrive on the block and park

 in front of 1213 Sydney Street.The man in thewhite t-shirt leftthe steps and approached the

passenger side of the Pontiac. Defendant was the driver and sole occupant of the Pontiac.

Defendant roJJed down the window of the Pontiac. Defendant and the man in the white t-shirt

engagedin a bri~f conversation. The man in the white t-shirt then leaned into the car with his

upper torso, leaned back from the    car, turned· around, and walked back 'into the house at 121J
Sydney Street. Thirtyseconds later, Defendant drove away in his Pontiac. Officer Hagins

followed the Pontiac while maintaining contact with Officer Robinson. Officer Hagins never lost

sight of the Pontiac and testified that no one else approached the vehicle or interacted with

Defendant. Id. at 40-42.

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            2.     Seizure ofDefendanCs Vehicle and Contraband

            Twenty seconds after Defendant drove off the block, the C.I. exited the side door of 1213

  Sydney Street and met with Officer Robinson. Officer Robinson recovered from the C.I. one red

  plastic packet containing crack cocaine. Upon recovering the packet of crack cocaine, Officer

  Robinson instructed Officer Hagins, who was still following Defendant in the Pontiac, to stop

 Defendant's vehicle. Officer Hagins stopped the Pontiac at the 8000 block of Temple Road and

 arrested Defendant, who was still the sole occupant of the vehicle. Officers recovered $570 and

 two cell phones from Defendant's person in a search incident to his arrest. Officers also

 recovered $109 from the front seat of the car, which included the$20 in pre-recorded buy money

 used by the C.I. earlier that night Id. at 11-12, 36-37, 41.

        Following Defendant's arrest, the officers transported the Pontiac to police headquarters

 and secured it. At approximately 10:30pm, Officer Robinson executed a search and seizure

 warrant on the Pontiac. During the search, Officer Robinson recovered a WD-40 can with a false

screw-off bottom containing $405 and a bulk amount of crack cocaine. Officers also recovered

two clear plastic baggies: the first containing white residue and 16 red packets, all of which

contained crack cocaine, and the second containing a bulk amount of crack cocaine. Id. at 12-15.

        3. . .· Ptocedurai History

        On December 15, 2004, Defendant was charged with possession with intent to deliver

(''PWID"), possession of a controlled substance, and criminal conspiracy. On January 30, 2007,

the Honorable Abram Reynolds denied Defendant's motion to suppress. On November 13, 2007,

following   a bench trial, Judge Dempsey found Defendant    guilty of PWID and criminal




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     conspiracy. On January 3, 2008, Judge Dempsey sentenced Defendant to three to six years of

     incarceration. 2

               Defendant filed a timely appeal to the Superior Court, which affirmed the judgment of

     sentence. Defendant's counsel did not raise the denial of his motion to suppress as an error on

    the direct appear. Defendant filed a timely PCRA petition, which alleged that appellate counsel

    was ineffective for failing to raise the denial of the motion to suppress as error on direct appeal.

    Defendant's counsel filed a Finley letter on October 25, 2013. Defendant filed an amended

    PCRA petition on November 15, 2013. On December 6, 2013, the post-conviction court

    dismissed Defendant's petition without an evidentiary hearing.

    DISCUSSION

           In Commonwealth v. Cox, 983 A.2d 666 (Pa 2009), our Supreme Court set forth the

    standards governing claims brought pursuant to the PCRA alleging ineffective assistance of

    counsel:

                     Under the PCRA, collateral relief is afforded to individuals who
                     prove that they are innocent of the crimes of which they were
                     convicted, and those receiving illegal sentences. 42 Pa.C.S. § 9542.
                     A petitioner is eligible for PCRA relief only when he proves by a
                    preponderance of the evidence that his conviction or sentence
                    resulted from one or more of the circumstances delineated in 42
                    Pa.C.S. § 9543(a)(2). Commonwealth v. Natividad, 938 A.2d 310,
                    320 (Pa 2007). One of the grounds enumerated in 42 PaC.S §
                    9542(a)(2) involves claims alleging ineffective assistance of
                    counsel. Thus, the PCRA provides relief to those individuals
                    whose convictions or sentences 'resulted from ineffective
                    assistance of counsel which, in the circwnstances of the particular
                    case, so undermined the truth-determining process that no reliable
                    adjudication of guilt or innocence could have taken place.' 42

2
  This opinion assumes Defendant is still serving his sentence. If Defendant is no longer serving his sentence, then
this would provide an additional basis to deny relief. Commonwealth v. Judge, 797 A.2d 250 (Pa. 2002) (to be
eligible for post-conviction relief, a defendant must satisfy the statutory requirements at both the time he files the
petition and at the time that relief is due); Commonwealth v. Williams, 977 A.2d 1 l 74 (Pa. Super. Ct. 2009) (a
petitioner is ineligible for relief under the PCRA as soon as he has completed his sentence, regardless of whether he
was serving the sentence when he filed ms petition).

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                  Pa.C.S. § 9542(a)(2)(ii). [The Supreme Court of Pennsylvania] has
                  interpreted this to mean that, in order to obtain relief on a claim
                  alleging ineffective assistance of counsel, a petitioner must prove:
                  (I) the claim underlying the ineffectiveness claim has arguable
                 merit; (2) counseJ's actions lacked any reasonable basis; and (3)
                 counsel's     actions    resulted   in prejudice       to petitioner.
                 Commonwealth        v. Collins, 957 A.2d 237 (Pa 2008);
                 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). The law
                 presumes that counsel was effective and the burden of proving that
                 this presumption is false rests with the petitioner. Commonwealth
                 v. Basemore, 744 A.2d 717, 728, n. l O (Pa 2000).

  Cox, 983 A.2d at 677.

         The standard ofreview for an appeal from the denial of PCRA relief is "whether the

  findings of the PCRA court are supported by the record and free of legal error." Commonwealth

 v. Gorby, 900 A.2d 346, 363 (Pa. 2006). The PCRA court's factual determinations are entitled to

 deference, but its legal conclusions ~    subject to plenary review. Id. There is no absolute right to

 an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record

 that no genuine issues of material fact exist, then a hearing is unnecessary. Commonwealth v.

 Jones, 942 A.2d 903, 906 (Pa. Super. Ct. 2008). In other words, a judge may dismiss aPCRA

 petition without a hearing if the petition is patently .frivolous and without support in the record,

 or if the facts alleged therein would not, even if proven, entitle the defendant to relief.

 Pa.R.Crim.P. 907; Commonwealth v. Walls, 993 A.2d 289, 295 (Pa Super. Ct. 2010).

        1.      The Post-Conviction Court Properly Dismissed Defendant's Petition
                Without An Evidentiary Hearing Because Defendant's Claims
                Were Patently Frivolous And Without Support In The Record

        In his PCRA petition, Defendant argues that appellate counsel was ineffective for failing

to assert on direct appeal that the suppression court erred when it denied Defendant's motion to

suppress. As discussed below, Defendant's claim lacks arguable merit, and his petition is

patently .frivolous and without support in the record. As a result, the post-conviction court

properly dismissed Defendant's PCRA petition without a hearing.

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                  a.      The Suppression Court Properly Denied Defendant's
                          Motion To Suppress Because There Was Probable Cause
                          To Stop And Search Defendant And His Vehicle

          Defendant argues that the suppression court erred in denying his motion to suppress

  because he and his vehicle were stopped and searched without probable cause. The standard of

  review in addressing a challenge to the denial of a suppression motion is limited to a

  determination of whether the suppression court's factual findings are supported by the record and

 whether the legal conclusions drawn from those facts are correct. Commonwealth v. Jones, 988

 A.2d 649, 654 (Pa. 2010). Factual findings of the suppression court are binding on the appellate

 court if they are supported by the record. Id. An appellate court may reverse only if the

 suppression court's legal conclusions are erroneous. Id. Even if the suppression court did err in

 its legal conclusions, the reviewing court may affirm its decision where there are other legitimate

 grounds for the admissibility of challenged evidence. Commonwealth v. Dixon, 997 A.2d 368,

 373 (Pa. Super. Ct. 2010).

         Whether probable cause exists to stop and search an individual depends on whether "the

facts and circumstances which are within the knowledge of the officer at the time of the arrest,

and of which [an officer] has reasonably trustworthy information, are sufficient to warrant a man

ofreasonable caution in the belief that the suspect has committed or is committing a crime."

Commonwealth v. Rodriguez, 585 A.2d 988, 990 (Pa. 1991). Probable cause requires only a

probability, and not a prima facie showing, that an officer's belief is correct. Commonwealth v.

Thompson, 985 A.2d 928, 931 (Pa. 2009). Courts apply a totality of the circumstances test to

determine whether probable cause exists. Id. In relation to the observation of drug trafficking on

the street, courts have found:

               The time is important; the street location is important; the use of a
               street for commercial transactions is important; the number of such
               transactions is important; the place where the small items were

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                   kept by one of the sellers is important; the movements and
                   manners of the parties are important.

  Id. (citing Commonwealth v. Lawson, 309 A.3d 391, 394 (Pa. 1973)).

                           1.     There Was Probable Cause To Stop A.nd Arrest Defendant

           Defendant argues that the suppression court erred in denying his motion to suppress

  because he was arrested and searched without probable cause. An arrest requires a showing of

  probable cause. Commonwealth v. Revere, 888 A.2d 694 (Pa. 2005). When a lawful arrest is

  made, it is reasonable for the arresting officer to search the arrestee and to seize any evidence on

  his person in order to prevent its concealment or destruction. Commonwealth v. Standen, 675

 A.2d 1273 (Pa. Super. Ct. 1996).

           Here, the officers had probable cause to stop and arrest Defendant based on the observed

 pattern of illegal narcotic sales on December 8, December 9, and December 15, 2004, including,

 inter alia, (1) three confirmed illegal drug transactions from the house at 1213 Sydney Street,

 and (2) the interactions between a person inside a car and a man from inside the house at 1213

 Sydney Street while drugs were being so]d from the house. Indeed, Officer Robinson instructed

 the officers to stop Defendant only after he confirmed the C.I. had just successfully bought

 narcotics from the house. Moreover, there is no dispute that Defendant had-moments        before the

C.I. emerged with crack cocaine=exchanged        something with a person who was exiting and

entering a house from which the crack cocaine was sold.

          Based on the totality of the circwnstances summarized above, the officers had sufficient

probable cause to believe that Defendant had criminally conspired to illegally possess and sell

narcotics. Thus, the suppression court properly denied this portion of Defendant's motion

because there was probable cause to arrest Defendant and to search him pursuant to the lawful

arrest.


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                           ii.    The Items Recovered From Defendant's     Vehicle Were In Plain View

          Defendant also argues that the suppression court erred in denying his motion to suppress

  because the officers recovered items in his vehicle without a search warrant. Police may seize

  objects without a warrant if the seizure falls under the plain view exception, which has three

  prongs: (I) the officer must observe the object from a lawful vantage point; (2) the incriminating

  character of the object must be immediately apparent; and (3) the officer must have a lawful right

  of access to the object. Commonwealth v. McCree, 924 A.2d 621, 625 (Pa. 2007).

         Here, the officers could seize the $109 from the front seat of Defendant's car because the

 plain view exception to the warrant requirement applies. First, the officers observed the money

 from outside the vehicle, which is a lawful vantage point. Second, the money was immediately

 apparent to the officer as narcotics-related money due to the illegal drug sale that occurred

 moments earlier and the interaction between Defendant and a male from the house where the

 drug transaction occurred. Third, the officers bad a lawful right to access the object because they

 had lawfully stopped Defendant's vehicle. Thus, the suppression court properly denied this

 portion of Defendant's motion because the $109 recovered from the front seat-including          the

 $20 in pre-recorded buy money-was       lawfully seized by the officers pursuant to the plain view

 exception to the warrant requirement.

                      m.         There Was Probable Cause To Search The Console

        Finally, Defendant argues that the suppression court erred in denying his motion to

suppress because the officers searched and recovered items from the vehicle's console without

probable cause. In a recent decision, the Supreme Court of Pennsylvania clarified that po1ice

officers may lawfully conduct a warrantless search of a motor vehicle if there is probable cause

to do so. Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014). Such a lawful search does not require

a showing of exigency beyond the inherent mobility of the vehicle. Id.
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            Here, the officers had probable cause to search the console of Defendant's vehicle based

  upon all of the circumstances described previously, including the surveillances and the pattern of

  observed sales over three separate days. In addition to these facts, the officers had the additional

  fact that they recovered pre-recorded buy money from the front seat of Defendant's vehicle.

  Although the officers waited to search Defendant's vehicle until they actually received a search

 warrant, under Commonwealth v. Gary they did not have to wait. Instead, the search of

 Defendant's console inside his vehicle was lawful based upon the facts summarized above. Even

 if a warrant was required, however, the officers waited until they received a search warrant for

 Defendant's vehicle; the warrant was valid because it was based upon all of the facts

 summarized above. Therefore, the suppression court properly denied this portion of Defendant's

 motion.

           In sum, the post-conviction court determined that no genuine issues of material fact

 existed and that an evidentiary hearing was unnecessary to determine if appellate counsel was

 ineffective by failing to preserve on appeal whether the suppression court erred in denying

Defendant's motion to suppress. The post-conviction court relied on the proper standards for        ·

ineffectiveness claims regarding motions to suppress, and the record is free of legal error.

Therefore, the post-conviction court properly dismissed Defendant's PCRA petition without a

hearing.

CONCLUSION

       Based on the foregoing, this court should affirm the post-conviction court's dismissal of




DANIEL J. ANDERS, JUD E
Dated: July 16, 2014
                                                  9
