J-S02035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DAVID MATTHEW TRES                       :
                                          :
                    Appellant             :   No. 1297 EDA 2018

                Appeal from the PCRA Order March 19, 2018
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0004624-2016


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

CONCURRING MEMORANDUM BY KUNSELMAN, J.:              FILED APRIL 09, 2019

      The majority affirms this PCRA appeal based on the well-reasoned

opinion of the PCRA court. I concur with this decision. I write separately to

specifically address Tres’ argument that his plea counsel was ineffective based

on this Court's decision in Commonwealth v. Jones, 845 A.2d 821 (Pa.

Super. 2004).

      Both of Tres’ claims on appeal allege the ineffective assistance of

counsel in relation to the entry of his guilty plea.       As this Court has

summarized:

            A criminal defendant has the right to effective counsel
         during a plea process as well as during trial. A defendant is
         permitted to withdraw his guilty plea under the PCRA if
         ineffective assistance caused the defendant to enter an
         involuntary plea[.]

            We conduct our review of such a claim in accordance with
         the three-pronged ineffectiveness test under section
         9543(a)(2)(ii) of the PCRA. The voluntariness of the plea
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          depends on whether counsel’s advice was within the range
          of competence demanded of attorneys in criminal cases.

Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)

(citations omitted).

      In addressing Tres’ claims, the PCRA court addressed the issue as if it

were a direct challenge to the voluntariness of his plea, rather than a challenge

to the advice given by plea counsel.            The PCRA court rejected Tres’

ineffectiveness claim only after engaging in an analysis of the statements

made by Tres during the plea colloquy. The Majority, by adopting the PCRA

court’s   reasoning,   likewise   does    not   address   Tres’   actual   claim   of

ineffectiveness.

      Tres believes his lawyer was ineffective for advising him to take a plea

instead of proceeding with a suppression motion based on an illegal stop. To

support his claim, he relies solely on our decision in Jones, supra.               He

believes this case conclusively renders his stop and the subsequent pat-down

for weapons illegal, and that his attorney should have known about the Jones

case and given him better advice.

      Tres is mistaken. The facts of his case are significantly different from

Jones, and as such, the suppression court would likely have denied his

suppression motion.

      In Jones, a panel of this Court concluded that, although the police knew

the name of the informant, such information alone was insufficient to serve

as a basis for a stop. Id. at 825. Specifically, the panel concluded that the



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identity of the tipster alone was insufficient in light of the content of the

information provided by the tipster to the police.         Id.   That is, the only

information provided by the identified tipster was a description of a vehicle at

a certain location which was allegedly “involved in drug activity.” Id. Without

a more detailed explanation of the person and activity at issue, the panel

concluded that the police did not have reasonable suspicion to stop the driver.

Id. at 826. Specifically, the panel stated the officer “did not know what ‘drug

activity’ was involved, or the identity, gender, race or number of individuals

involved in the alleged activity.” Id. at 826. Consequently, this tip did not

contain sufficient specificity to justify the detention.

      However, we noted in Jones that the knowledge of the identity of the

caller who provided information to the police, may in certain circumstances,

serve as a basis to presume the reliability and trustworthiness of the

information provided by the individual. Id. at 825.

      Since Jones, we have observed that “identified citizens who report their

observations of criminal activity to police are assumed to be trustworthy, in

the absence of special circumstances, since a known informant places himself

at risk of prosecution for filing a false claim if the tip is untrue, whereas an

unknown informant faces no such risk.” Commonwealth v. Barber, 889 A.2d

587, 593 (Pa. Super. 2005). Similarly, “Pennsylvania law ... permits a vehicle

stop based upon a radio bulletin if evidence is offered at the suppression

hearing to establish reasonable suspicion.” Id. at 594.




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      [F]or a stop to be valid, someone in the police department must
      possess sufficient information to give rise to reasonable suspicion.
      The officer with the reasonable suspicion, usually the dispatcher,
      need not convey all of this background information to the officer
      who actually effectuates the stop. Thus, the police may justify the
      search by presenting sufficient evidence at the suppression
      hearing that someone in the chain of command had reasonable
      suspicion before the stop, even if the arresting officer did not.

Id. (citation omitted). See also Commonwealth v. Anthony, 977 A.2d

1182, 1186–87 (Pa. Super. 2009).

      Here, in addition to the caller being identified, unlike in Jones, the caller

gave a specific description of the vehicle, driver, and activity at issue. The

caller identified a white male in a black hooded sweatshirt riding a motor

scooter displaying a gun. Therefore, the suppression court could have found

this information was sufficiently specific and reliable to give Officer Garay

reasonable suspicion to stop Tres on his scooter.          Moreover, the officer

observed Tres commit a motor vehicle violation on the scooter, i.e. an unlit

headlamp, which also justified the stop.       Additionally, the pat-down was

further warranted when Tres disobeyed the officer’s command not to dismount

the scooter; since he got off of the scooter, in direct contravention of the

officer’s order, this arguably gave the officer authority to conduct the pat-

down for officer safety. See e.g. Commonwealth v. Mack, 953 A.2d 587

(Pa. Super. 2008).

      Based on the totality of the circumstances here, Tres likely would have

lost his suppression motion.    See Barber, supra and Anthony, supra. His

attorney advised him of this likelihood in the letter of October 10, 2016.



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       In addition to the unlikely success of the suppression motion, had Tres

pursued suppression, the negotiated plea offer of 3 and ½ years of

incarceration would have been withdrawn. If convicted, Tres faced 5 years

for the gun charge and an additional 2 years for the theft charge, which the

district attorney could request to run consecutively.1 As such, Tres’ attorney

warned him, “When you consider all of this you have to conclude that you

would be taking one hell of a risk.”           Letter dated 10/10/16.   Further, his

attorney told Tres the choice was up to him and also advised him to get a

second opinion.      Tres chose to voluntarily enter a plea.

       In sum, Tres has failed to establish that plea counsel’s advice was not

“within the range of competence demanded of attorneys in criminal cases.”

Orlando, supra. Thus, I agree with the Majority that because Tres’ attorney

did not render ineffective assistance of counsel, no PCRA evidentiary hearing

was necessary and Tres’ appellate issues merit no relief.




____________________________________________


1During the oral colloquy, Tres was aware that he faced potential 10-20 years
of incarceration if convicted on all of the charges against him.

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