J-S77005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMAR MATTHEWS                             :
                                               :
                       Appellant               :   No. 3922 EDA 2017

                  Appeal from the PCRA Order October 30, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003979-2014


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                  FILED MARCH 07, 2019

        Jamar Matthews appeals, pro se, from the order entered October 30,

2017, in the Philadelphia County Court of Common Pleas, dismissing his first

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 Matthews

seeks relief from the judgment of sentence of an aggregate term of 13 to 26

years’ imprisonment, imposed June 26, 2015, following his jury conviction of

attempted murder, conspiracy, and related charges2 for a November, 2013

attack on Enoch Carter. On appeal, Matthews contends the PCRA court abused

its discretion when it failed to grant him an evidentiary hearing on his claims

that: (1) trial counsel was ineffective for failing to object to prosecutorial
____________________________________________


   Retired Senior Judge assigned to the Superior Court.
1   See 42 Pa.C.S. §§ 9541-9545.

2   See 18 Pa.C.S. §§ 901/2502 and 903, respectively.
J-S77005-18



misconduct, (2) trial counsel was ineffective for failing to challenge an illegal

search and seizure, and (3) the trial court failed to issue a limiting instruction

regarding the jury’s consideration of a statement by his co-defendant which

implicated him in the crime. For the reasons below, we affirm.

      The trial testimony leading to Matthews’ conviction was summarized by

a prior panel of this Court as follows:

      [O]n November 29, 2013, at approximately 9:45 p.m.,
      [Philadelphia Police Officer Milord Celce] received a radio call for
      a shooting and person with a gun at 2603 West Harold Street in
      Philadelphia. Officer Celce, who was approximately four (4) blocks
      away at the time, promptly arrived at the above location, where
      he observed bullet holes in the windows and encountered the
      complainant, Enoch Carter. Based on his conversation with Mr.
      Carter, they proceeded to 2642 North 26th Street—literally just
      around the corner, not even 30 seconds later—where they met
      Highway Patrol Officer Reid, and knocked on the door.
      [Matthews], who was in a wheelchair, answered the door; his
      cohort, Co-Defendant Karie Dozier (hereinafter “Dozier”), was
      seated on a couch directly facing the front door of the residence.
      As soon as Mr. Carter saw Dozier, he yelled and pointed to him,
      [t]hat's the guy.

      Officer Celce placed Dozier on the floor to detain him. He lifted
      the cushion where Dozier was sitting and recovered a handgun;
      Dozier was sitting on the gun. Officer Celce escorted Dozier
      outside, where he was positively identified by Mr. Carter, and took
      him into custody. Mr. Carter also was transported to Central
      Detectives for an interview, during which Officer Celce learned of
      [Matthews’] involvement; he then went back to the residence and
      placed [Matthews] under arrest at 12:15 a.m.

      .... Mr. Carter testified that, prior to the shooting, he had lived
      around the corner from [Matthews] for approximately one and
      one-half (1 1//2) years and was friends with him. Mr. Carter used
      to hang out with [Matthews] frequently, and also helped him with
      chores such as laundry and grocery shopping. Several weeks
      before the shooting, on October 17, 2013, [Matthews] was driving
      a van (with handicapped hand controls) in which Mr. Carter and a


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     female friend of [Matthews] were riding as passengers.
     Approaching a red light, [Matthews] mistook the accelerator for
     the brakes, and crashed into a building, injuring Mr. Carter and
     the female.     [Matthews] was arrested at the scene for his
     involvement in the crash. Mr. Carter was transported to the
     hospital via ambulance for treatment and subsequently required
     physical therapy for his injuries. Several weeks later, Mr. Carter
     commenced a personal injury lawsuit against [Matthews], which
     [Matthews] took to heart. [Matthews] thereafter had several
     different individuals approach Mr. Carter to persuade him to
     “drop” the lawsuit, including a younger gentleman earlier on the
     day of the shooting, who proposed a fistfight in front of
     [Matthews’] residence. Mr. Carter declined the proposal and went
     home.

     Later that evening, at approximately 9:40 p.m., Co-Defendant
     Dozier knocked on Mr. Carter’s door. Mr. Carter stuck his head
     out of his second-story window to see who it was. Dozier asked
     him why he had a beef with [Matthews]; Mr. Carter explained that
     he did not have a problem with [Matthews], it was [Matthews]
     who had a problem with him due to the lawsuit. After speaking
     with Dozier for five (5) to seven (7) minutes, [Matthews]
     approached on his wheelchair and parked it next to Dozier. Dozier
     then asked [Matthews], “what do you want me to do[?]” at which
     point [Matthews] said “go ahead[.]”        Right on cue, Dozier
     retrieved a black handgun, pointed it at Mr. Carter and opened
     fire. Mr. Carter saw the flash from the gun, and a bullet went
     through his window; he fell back into the home. As he was falling,
     Dozier fired several more shots at him. Fortunately, none of the
     bullets struck Mr. Carter, who immediately dialed 911 to summon
     police. During the call, he provided a physical description of
     Dozier and reported [Matthews’] involvement. A few minutes
     later, he accompanied police to [Matthews’] residence, where
     Dozier and the handgun were taken into custody following Mr.
     Carter’s positive identification.

     .... [Ballistics expert and] Philadelphia Police Officer Jesus Cruz
     testified that he test-fired the handgun that Dozier was sitting on
     and compared the fired cartridge casing (“FCC”) with the five (5)
     FCCs recovered in front of Mr. Carter’s residence. Based on his
     analysis, which was peer-reviewed, he concluded to a reasonable
     degree of scientific certainty that each of the five (5) FCCs
     recovered at the scene was, in fact, fired from Dozier’s handgun.



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     ... Philadelphia Police Detective Michael Repici ... testified that, on
     November 29, 2013, he was assigned to investigate this matter.
     At approximately 11:35 p.m., he interviewed Mr. Carter at Central
     Detectives. When Mr. Carter described [Matthews’] involvement,
     Detective Repici asked Officer Celce—who was present—if he
     knew where this guy is? Officer Celce responded, [y]eah, he's still
     back there, at which point Detective Repici directed him to arrest
     [Matthews]. Officer Celce embarked on this quest a few minutes
     prior to 12:00 a.m.

     Detective Repici then went to the crime scene, 2603 Harold Street,
     which was being held, or secured, by fellow officers. There, he
     recovered under property receipt four (4) FCCs on the pavement
     and one (1) FCC in the street, all in close proximity to each other
     in front of Mr. Carter’s residence. He also took photographs of all
     the evidence, including the bullet holes in the windows and inside
     the residence, which he described as the photos were displayed
     to the jury. Detective Repici then proceeded to 2642 North 26th
     Street, where he took photographs of the couch and black
     handgun, the latter of which he recovered under property receipt.

     Finally, the Commonwealth introduced via stipulation: (a)
     certificates of non-licensure with respect to both [Matthews] and
     Dozier, establishing that neither male was licensed to carry a
     firearm and thus not permitted to carry a firearm in Pennsylvania;
     (b) authenticity of prison phone call records between [Matthews]
     and Dozier, in which they discuss methods to prevent the case
     from going forward—which recordings were played for, and their
     transcripts displayed to, the jury.

Commonwealth v. Matthews, 153 A.3d 180 [2468 EDA 2015, at *1-2] (Pa.

Super. 2016) (unpublished memorandum) (citation omitted).

     Matthews proceeded to a joint jury trial with co-defendant Dozier. On

April 23, 2015, he was convicted of attempted murder, criminal conspiracy to

commit murder, aggravated assault, persons not to possess firearms, carrying

a firearm without a license, carrying a firearm on a public street in




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Philadelphia, and possession of an instrument of crime.3             Matthews was

sentenced to an aggregate term of 13 to 26 years’ imprisonment on June 26,

2015. He filed a post-sentence motion, which was denied by the trial court,

followed by a timely direct appeal. See Matthews, supra. A panel of this

Court affirmed his judgment of sentence, and, on March 15, 2017, the

Pennsylvania Supreme Court denied Matthews’ petition for allowance of

appeal. See Commonwealth v. Matthews, 169 A.3d 11 (Pa. 2017).

       On July 20, 2017, Matthews filed a timely, pro se, PCRA petition in which

he challenged trial counsel’s ineffectiveness for:             (1) failing to seek

suppression of the firearm recovered during an illegal search; (2) failing to

raise a claim of prosecutorial misconduct when the Commonwealth presented

perjured testimony from the responding and investigating officers; (3) failing

to object to the introduction of his co-defendant’s statement implicating him

in the crime, and failing to request a curative instruction; and (4) failing to

object to improper comments by the prosecutor during closing argument. See

Motion for Post Conviction Collateral Relief, 7/20/2017, at 6a. Matthews also

argued the trial court committed “reversible error when it failed to issue a

curative instruction to the jury[.]”           Id.   Although counsel was promptly




____________________________________________


3 See 18 Pa.C.S. §§ 901/2502, 903, 2702, 6105, 6106, 6108, and 907
respectively.




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appointed, she later filed a petition to withdraw, accompanied by a

Turner/Finley4 “no merit” letter, on September 21, 2017.

       On September 25, 2017, the PCRA court sent Matthews notice of its

intent to dismiss his petition without first conducting an evidentiary hearing

pursuant to Pa.R.Crim.P. 907. Matthews did not respond directly to the court’s

Rule 907 notice, but rather, filed a motion for extension of time, a motion for

the transcripts, and a petition for leave to amend his PCRA petition.        On

October 30, 2017, the PCRA court entered an order dismissing Matthews’

petition, and permitting counsel to withdraw.      This timely pro se appeal

followed.5



____________________________________________


4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

5 Shortly after filing his appeal, Matthews filed several pro se motions seeking
the relevant transcripts and other discovery to aid him in filing his appellate
brief. On January 29, 2018, this Court entered an order remanding the appeal
to the PCRA court to provide Matthews with the relevant documents. See
Order, 1/29/2018. Meanwhile, unaware of this Court’s remand, on January
30, 2018, the PCRA court directed Matthews to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Matthews filed
a concise statement on February 20, 2018, a petition to file a supplemental
statement on February 27, 2018, and a supplemental statement on March 2,
2018. After receiving assurance that all the discovery and transcripts were
turned over to Matthews, on March 29, 2018, this Court permitted Matthews
to file a supplemental concise statement, and directed the PCRA court to file
a supplemental opinion if necessary. See Order, 3/29/2018. Ultimately,
Matthews filed a supplemental concise statement in November 2018, and the
PCRA court filed a supplemental opinion in response. See PCRA Court
Opinion, 12/4/2018, at 3.



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      Our standard of review, when considering the denial of PCRA relief, is

well settled. “In reviewing the denial of PCRA relief, we examine whether the

PCRA court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).     Further, “a PCRA court may

decline to hold a hearing on the petition if petitioner’s claim is patently

frivolous or lacks support from either the record or other evidence.”

Commonwealth v. duPont, 860 A.2d 525, 530 (Pa. Super. 2004) (citation

omitted), appeal denied, 889 A.2d 87 (Pa. 2005), cert. denied, 547 U.S. 1129

(2006).

      Matthews’ first two issues assert the ineffective assistance of trial

counsel. In order to obtain relief based upon an allegation of trial counsel’s

ineffectiveness, a PCRA petitioner must demonstrate:       “(1) the claim is of

arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) counsel’s ineffectiveness prejudiced him.”

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013).

Moreover, we presume counsel provided effective assistance, and “place upon

the appellant the burden of proving otherwise.” Id.

      In his first issue, Matthews contends the PCRA court abused its

discretion when it declined to hold an evidentiary hearing on his claim that

trial counsel was ineffective for failing to object to prosecutorial misconduct.

Specifically, he claims the Commonwealth withheld evidence and permitted

its witnesses to provide perjured testimony.     See Matthews’ Brief at 1-9.

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Matthews insists Officer Celce provided “false information” regarding his

recovery of the firearm in Matthews’ home. Id. at 2. Although the officer “led

the court to believe that, the gun was found in ‘plain view’ after he removed

[the] co-defendant (Dozier) from the couch,” his trial testimony revealed that

he actually lifted a cushion to retrieve the gun, and that another witness, an

unidentified female, was present in the room.      Id.   Matthews emphasizes,

however, that none of these facts were “in any official report.”           Id.

Furthermore, Matthews contends Detective Repici conspired with Officer Celce

to cover-up “evidence of a bad search.” Id. at 6. He claims the detective

knew Officer Celce removed the gun from a hole in the couch, but allowed his

interview with Officer Celce to be submitted into evidence. In that interview,

Officer Celce stated that he “saw a firearm on the couch” after he picked up

Dozier. Id. Indeed, Matthews maintains that “[b]oth officers have falsified

statements, and withheld evidence of an illegal search.”           Id. at 7.

Furthermore, he insists they “deceptively applied for a warrant for a gun that

they already had in their possession.” Id. at 5.

      Matthews’ assertions raise an allegation that the Commonwealth

committed prosecutorial misconduct by withholding evidence and presenting

false testimony in violation of Brady v. Maryland, 373 U.S. 83 (1963). In

order to establish a Brady violation, a petitioner must demonstrate:

      (1) the evidence was suppressed by the Commonwealth, either
      willfully or inadvertently; (2) the evidence was favorable to the
      defendant; and (3) the evidence was material, in that its omission
      resulted in prejudice to the defendant. The burden rests with the


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        defendant to “prove, by reference to the record, that evidence was
        withheld or suppressed by the prosecution.”

               To demonstrate prejudice, “the evidence suppressed must
        have been material to guilt or punishment.” Evidence is material
        under Brady when there is a reasonable probability that, had the
        evidence been disclosed, the result of the trial could have been
        different. “The mere possibility that an item of undisclosed
        information might have helped the defense, or might have
        affected the outcome of the trial does not establish materiality in
        the constitutional sense.” The relevant inquiry is “not whether the
        defendant would more likely than not have received a different
        verdict with the evidence, but whether in its absence he received
        a fair trial, understood as a trial resulting in a verdict worthy of
        confidence.” Additionally, “[a] reviewing court is not to review the
        evidence in isolation, but, rather, the omission is to be evaluated
        in the context of the entire record.”

Commonwealth v. Antidormi, 84 A.3d 736, 747-748 (Pa. Super. 2014)

(internal citations omitted), appeal denied, 95 A.3d 275 (Pa. 2014).

        Matthews’ Brady claim centers on perceived omissions in the police

reports he received before trial. As noted above, he insists the trial testimony

of both Officer Celce and Detective Repici differed from the information in their

official reports, and either the pretrial omissions were purposeful so as to deny

him a fair trial, or the officers’ trial testimony was false. His argument focuses

on the following “facts:”       (1) Officer Celce “created a witness that did not

exist” in his trial testimony;6 (2) Officer Celce led the court to believe the gun

was in “plain view” after Dozier was removed from the couch, when he had

told Detective Repici it was “inside a hole in the couch;” 7 (3) the
____________________________________________


6   Matthews’ Brief at 4.

7   Id. at 2, 5.



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Commonwealth submitted Officer Celce’s statement into evidence knowing it

was false;8 and (4) Detective Repici knew the gun was in the possession of

police when he applied for the search warrant.9 Our review of the record,

however, fails to reveal any material omissions or potentially false statements

that prejudiced Matthews’ preparation of his defense.

        With regard to the missing female witness, we note Officer Celce

acknowledged during cross-examination that he did not file a report on the

woman, nor did he mention her to Detective Repici. See N.T., 4/21/2015, at

143-144. He further explained that he “didn’t have her stopped” because he

was focused on Dozier. Id. at 144. Officer Celce stated that one of the other

“multiple units in the house” should have filed a report on her, but he did not

know if they did. Id. Although he did not have her name, he testified the

female told him she lived upstairs. See id. Therefore, the officer admitted

he neglected to reference the female in any of his paperwork. Nevertheless,

Matthews fails to demonstrate how this omission was material to his trial or

defense. The Commonwealth did not attempt to call her at trial, and there is

no allegation she would have provided testimony favorable to Matthews so

that had her presence been disclosed, “there is a reasonable probability that,




____________________________________________



8   See id. at 6.

9   See id. at 5.


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… the result of the trial could have been different.” Antidormi, supra, 84

A.3d at 747.

      With regard to the recovery of the firearm, we agree Officer Celce’s trial

testimony differed somewhat from the statement he gave to Detective Repici.

In his statement, Officer Celce said: “[W]e go to cuff [Dozier] and he [was]

still on the couch. We cuffed him up and then we picked him up off the couch

and at that time I see a firearm on the couch.”       Trial Exhibit C4, Officer’s

Interview Report, 12/17/2013, at 1.           At trial, however, Officer Celce

elaborated that after he grabbed Dozier, he “went to the area [on the couch]

where [Dozier] had his hand, … [l]ifted up the couch cushion and there was a

handgun right there.” N.T., 4/21/2015, at 92. The officer acknowledged that

while his interview read as if Dozier was sitting on the gun, the firearm was

actually situated underneath the cushion, although he stated he “could see

[it] without having to move any couch cushions[.]”        Id. at 131, 134-135.

Later at trial, Detective Repici identified a crime scene photo of a hole in the

couch, stating “[t]his is where the gun was originally.” N.T., 4/22/2015, at

158. When asked how he knew the gun was inside the hole, the detective

replied, “[t]he officers told me.” Id. However, during cross-examination by

co-defendant Dozier’s counsel, Detective Repici corrected his testimony and

stated Officer Celce told him “he recovered the gun in the couch[,]” but the

detective could not “specifically say where exactly [Officer Celce] found it from

the couch.”    Id. at 168.   Although counsel pressed him on this purported

change in testimony, the detective insisted he did not remember if Officer

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Celce “said he found it inside the hole of the couch or under the pillows … in

the couch.” Id. at 169.

      Again, Matthews has not demonstrated the Commonwealth either

withheld material evidence, or presented perjured testimony. While Officer

Celce’s trial testimony differed somewhat from his pretrial statement, we note

that the statement was very brief, and did not specify how he recovered the

firearm. His testimony at trial, however, was more detailed, and not entirely

inconsistent.   Dozier’s counsel cross-examined both Officer Celce and

Detective Repici extensively regarding the perceived differences in their trial

testimony and the official reports. There is simply no support for Matthews’

claim that the officers lied during their testimony about any material fact, or

purposefully withheld information from their official reports, much less that

the Commonwealth was aware they did so.

      Furthermore, with regard to Matthews’ assertion that the firearm was in

police custody at the time Detective Repici applied for the search warrant, we

find no support for this claim. See Matthews’ Brief at 4. Matthews avers the

Carter “confirm[ed]” in his testimony that both the gun and Dozier were

transported to the police station. Id. However, the testimony that he cites

does not support this assertion. Indeed, Carter was asked why he did not

initially tell the police about Matthews’ role in the shooting.     See N.T.,

4/22/2015, at 71. He replied:

      I did not tell the police at that time.



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      They [were] more concerned about getting the gun and who was
      the shooter.

      Once they grabbed the gun and the shooter, they took him down
      [to] the station. They took me down [to] the station.

Id. Contrary to Matthews’ claim, Carter did not testify the police took the

firearm to the police station when they left his home. Rather, Officer Celce

explained that after he grabbed the gun, he held it for the detectives. See

4/21/2015, at 99. Later, Detective Repici stated that when he executed the

search warrant, he recovered the gun from a small table in Matthews’ home.

He explained: “The officers had told us that they had it on there because

there was another male in the house at the same time [i.e., Matthews] and

they wanted to make sure it was safe.” N.T., 4/22/2015, at 156. There was

simply no testimony indicating the gun was transported to the police station

prior to the execution of the search warrant. Therefore, because Matthews’

allegations of the Commonwealth’s Brady omissions and fabricated testimony

are not supported by the record, we find the PCRA court did not abuse its

discretion when it denied Matthews an evidentiary hearing on this claim.

      Next, Matthews argues trial counsel was ineffective for failing to

challenge the illegal search of his residence. See Matthews’ Brief at 10-14.

He contends “the police had no probable cause to enter [his] home, or make

an arrest, and therefore, anything that was found after the illegal entry and

arrest, [is] inadmissible and fruits of a poisonous tree.” Id. at 11. Moreover,

he avers Officer Celce then conducted a warrantless search when he lifted up

the couch cushion and found the firearm. See id. at 12. Matthews insists



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there were no “exigent circumstances” to permit this search, and complains

Detective Repici falsified the search warrant affidavit since he knew the gun

had already been transported to the police station for processing. 10 See id.

Accordingly, Matthews argues trial counsel was ineffective for failing “to move

for the suppression of the evidence collected from [his] residence.” Id. at 13.

We find this issue has no arguable merit.11

        It is axiomatic that both the Fourth Amendment of the United States

Constitution and Article 1, Section 8 of the Pennsylvania Constitution protect

individuals from unreasonable searches and seizures of their residence. See

Commonwealth v. Richter, 791 A.2d 1181, 1184 (Pa. Super. 2002) (en

banc).     Consequently, a search warrant is generally required to conduct a

search of a home, and “[a]bsent the application of one of a few clearly

delineated exceptions, a warrantless search or seizure is presumptively

unreasonable.” Commonwealth v. Caple, 121 A.3d 511, 517 (Pa. Super.

2015), appeal denied, 179 A.3d 7 (Pa. 2018). One such exception is exigent

circumstances.

        The exigent circumstances exception to the warrant requirement
        recognizes that some situations present a compelling need for
____________________________________________


10   As noted supra, this allegation is not supported in the record.

11  We note the certified record contains a pretrial motion to suppress filed by
Matthews’ counsel on April 16, 2015, less than a week before trial. However,
it does not appear the motion was ever ruled upon, and it was not referred to
during the pretrial hearing on April 20, 2015. Therefore, for our purposes, we
will presume counsel abandoned the motion, and proceed as if none was ever
filed.


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     instant arrest, and that delay to seek a warrant will endanger life,
     limb or overriding law enforcement interests. In these cases, our
     strong preference for use of a warrant must give way to an urgent
     need for immediate action.

     In determining whether exigent circumstances exist, a number of
     factors are to be considered. Among the factors to be considered
     are: (1) the gravity of the offense, (2) whether the suspect is
     reasonably believed to be armed, (3) whether there is above and
     beyond a clear showing of probable cause, (4) whether there is a
     strong reason to believe that the suspect is within the premises to
     be searched, (5) whether there is a likelihood that the suspect will
     escape if not swiftly apprehended, (6) whether the entry was
     peaceable, and (7) the time of the entry, i.e., whether it was made
     at night. These factors are to be balanced against one another in
     determining whether the warrantless intrusion was justified.

     Other factors may also be taken into account, such as whether
     there is hot pursuit of a fleeing felon, a likelihood that evidence
     will be destroyed if police take the time to obtain a warrant, or a
     danger to police or other persons inside or outside the dwelling.

Richter, supra, 791 A.2d at 1184-1185, quoting Commonwealth v.

Santiago, 736 A.2d 624, 631-632 (Pa. Super. 1999).

     Here, the PCRA court concluded the facts present in this case

“overwhelmingly” established exigent circumstances justifying the officers’

warrantless entry into Matthews’ home. The court opined:

     Officer Celce received a radio call for a shooting and person with
     a gun at 2603 West Harold Street in Philadelphia. Only four (4)
     blocks away, the officer immediately converged on that location,
     where he observed bullet holes in the windows and encountered
     the complainant, Enoch Carter. Mr. Carter – who was well familiar
     with [Matthews] and had just witnessed [Matthews] ordering
     Dozier to shoot him – directed Officer Celce to [Matthews’]
     residence, which was just around the corner. “Not even 30
     seconds” later, he knocked on, and [Matthews] answered, the
     door; Dozier was seated on a couch directly facing the front door
     of the residence. As soon as Mr. Carter saw Dozier, he yelled and
     pointed to him, “[T]hat’s the guy”. Upon removing Dozier from
     the couch, Officer Celce lifted the cushion were Dozier was sitting

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     and recovered a handgun; Dozier was “sitting on” the gun. Thus,
     nearly each of the above factors, with the exception perhaps of
     “time of the entry”, weighs in favor of exigency. Accordingly, the
     police activity was justified in this case.

PCRA Court Opinion, 7/17/2018, at 14-15 (footnote omitted).

     We agree with the ruling of the PCRA court. Officer Celce responded to

the radio call of a shooting very quickly, and immediately he spoke with

Carter, the victim, who directed him to Matthews’ residence.        See N.T.

4/21/2015, at 87-90. At that point, the officer was investigating a serious

offense (a shooting), had reason to believe the suspect was armed, and had

reason to believe the suspect would be in Matthews’ home.       Officer Celce

knocked on the door and waited for Matthews to answer. See id. at 90-91.

When he did, the officer testified he could see Dozier sitting on a couch. See

id. at 91. Carter, who was standing behind the officer, immediately pointed

at Dozier and said, “that’s the guy who shot at my house.” Id. Officer Celce

then entered the home and arrested Dozier. He noticed Dozier had his hand

between his legs when he was sitting on the couch. See id. at 92. When he

picked up Dozier off the couch, he could see a firearm under the cushion.

Therefore, he flipped the cushion and retrieved the gun. See id. at 134-135.

We agree that under these facts, Officer Celce was presented with exigent

circumstances to enter the residence and arrest Dozier. Moreover, when he

saw the gun in the couch, based upon the fact there were other individuals

present, the officer acted properly when he removed the cushion and seized

the weapon. Therefore, because Matthews’ suppression claim has no arguable

merit, we find trial counsel was not ineffective for failing to pursue a

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suppression motion, and the PCRA court did not abuse its discretion when it

declined to conduct an evidentiary hearing on this baseless claim.            See

Michaud, supra.

        In his final argument, Matthews contends the PCRA court abused its

discretion when it failed to grant relief on his claim that the trial court should

have issued a curative instruction when Dozier’s confession was introduced at

trial. See Matthews’ Brief at 15-16. He maintains the Commonwealth used

the evidence of Dozier’s guilt to establish his conspiracy conviction, and failed

to provide any “cautionary or limiting instructions to the jury to prevent

confusion or misuse of the evidence.” Id. at 16.

        We find this claim is derivative of an issue that was raised, and rejected,

on direct appeal.      In his prior appeal, Matthews raised a Bruton12 claim,

arguing his “rights under the Confrontation Clause were violated when the

trial court permitted the Commonwealth to introduce a statement of Dozier

that implicated him in the shooting.” Matthews, supra, 153 A.3d 180 [2468

EDA 2015 at *3]. The statement at issue was made by Dozier in a recorded

prison phone call with Matthews. See id. However, a panel of this Court

found no Bruton violation because Dozier’s “vague” statement “did not

explicitly reference or facially incriminate [Matthews] in any way.” Id. at *4.

        In this appeal, Matthews contends the trial court erred when, absent a

request by counsel, it failed to provide a limiting instruction as to the use of
____________________________________________


12   Bruton v. United States, 391 U.S. 123 (1968).


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that same statement, sua sponte. See Matthews’ Brief at 15-16. This claim

fails for two reasons. First, an allegation of trial court error, as opposed to a

claim that counsel was ineffective, could have been raised on direct appeal.

Therefore, this issue is waived. See 42 Pa.C.S. §§ 9543(a)(3) and 9544(b).

Second, because a prior panel of this Court found Dozier’s statement did not

incriminate Matthews “in any way,” there was no reason for the trial court to

provide a limiting or cautionary instruction. Matthews, supra, 153 A.3d 180

[2468 EDA 2015 at *4]. In fact, the panel noted that Dozier’s statement was

so vague that it did not even “rise to being an admission” of his own criminal

conduct. Id.      Accordingly, Matthews’ present assertion of trial court error

fails.

         Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/19




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