J-S35015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDWIN R. ANDERSON                          :
                                               :
                       Appellant               :   No. 544 EDA 2019

             Appeal from the PCRA Order Entered January 15, 2019
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0000334-2015


BEFORE:      OLSON, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                               FILED AUGUST 16, 2019

        Appellant, Edwin R. Anderson, appeals from the order entered on

January 15, 2019, which dismissed his petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        In 2015, Appellant was arrested and charged with persons not to

possess firearms and firearms not to be carried without a license. 1 Prior to

trial, Appellant filed a motion to suppress the physical evidence against him,

on the ground that the police did not have reasonable suspicion to conduct a

stop and frisk of his person. See Appellant’s Motion to Suppress, 6/22/15, at

1-9.     We previously summarized the evidence presented during the

September 23, 2015 suppression hearing:

          In the early morning hours of January 22, 2015, Corporal
          Jonathan Shave of the Coatesville Police Department
____________________________________________


1   18 Pa.C.S.A. §§ 6105(a)(1) and 6106(a)(1), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       received a dispatch to the scene of a robbery. The suspects
       had fled, and the victim

          described them as being young black males in their teens
          or early twenties. The suspect that came in the house
          and took the wallet he described as light skinned, shorter
          and stocky. The other suspect he described as dark
          skinned and taller. . . .

          . . . [The victim] stated that one of the suspects implied
          that he had a gun and he did observe a dark handle in his
          pocket, but he could not tell if it was a gun or not. . . .

       [N.T. Suppression Hearing, 9/23/15, at 13].

       On January 23, 2015, at about 5:25 p.m., while off-duty, Cpl.
       Shave went to a Walgreens store located in a high crime area,
       approximately ten blocks away from where the robbery
       occurred. Cpl. Shave observed two men who generally
       matched the physical description of the robbery suspects
       walk into the store together, specifically, Mr. Ernay, a
       “[l]ight-skinned black male, small in stature,” and Appellant,
       who “was darker skinned than his light-skinned male
       companion and he was taller.” [Id. at 10 and 19]. Cpl.
       Shave

          observed that [Mr. Ernay] was carrying a firearm. The
          firearm was on his right side. [Cpl. Shave] observed the
          firearm, the slide and the barrel to be tucked into his
          jeans pocket with the handle of the firearm sticking out.
          The weapon was not holstered in any way, shape or form.

       [Id. at 7].

       Cpl. Shave, who has had extensive training in the area of
       firearm safety, had never seen anyone carry a firearm in this
       dangerous manner. [See id. at 7-8, 11, and 19]. This “stood
       out completely [to him]” and he thought: “[t]hese are the
       two guys from that robbery because of that firearm, the way
       it was positioned in his pocket.” [Id. at 19].

       Cpl. Shave exited the store and notified shift supervisor Cpl.
       Jeffrey Ingemie that “[he] had observed [two] subjects [who]
       appeared to have matched the description of a robbery,

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        specifically one with a firearm tucked in his pocket, and [he]
        asked [Cpl. Ingemie] to respond to assist.” [Id. at 14, 27,
        36, and 45]. Multiple officers responded to the Walgreens,
        including Cpls. Ingemie and Sean Dowds. . . .

        Appellant remained in the store, and Mr. Ernay returned to
        his vehicle. Cpl. Ingemie investigated Mr. Ernay, and
        determined that he was legally carrying the firearm. While
        Cpl. Ingemie was investigating Mr. Ernay, he noticed that
        Appellant was pacing inside of the store near the cash
        registers and staring at the officers, without purchasing
        anything. Cpl. Ingemie directed Cpl. Dowds to speak to
        Appellant.

        Cpl. Dowds entered the store accompanied by Police Officer
        Chris McCarthy, and they approached Appellant. Cpl. Dowds
        told Appellant that he would like to speak to him and
        requested identification. Appellant produced his license[]
        and Officer McCarthy returned to his patrol vehicle to run it.
        Cpl. Dowds asked Appellant to step outside of the store with
        him, Appellant assented, and the two men walked outside of
        the store towards the patrol vehicle. Cpl. Dowds asked
        Appellant if he could pat him down for safety[] and Appellant
        did not respond. Cpl. Dowds proceeded to pat Appellant
        down, checking for weapons, “for [his] safety,” and because
        “in [his] training and experience, where there’s one gun,
        there possibly could be two guns.” [Id. at 43-46]. The pat
        down revealed a loaded handgun in Appellant’s waistband.
        Cpl. Dowds detained Appellant, and police determined that
        he is a prior convicted felon, and is ineligible to have a license
        to carry a firearm.

Commonwealth v. Anderson, 161 A.3d 369 (Pa. Super. 2017) (unpublished

memorandum) at 2-4 (footnote omitted).

      The suppression court denied Appellant’s motion to suppress and

Appellant proceeded to a stipulated bench trial. At the conclusion of the trial,

the trial court found Appellant guilty of the charged crimes and, on March 28,

2016, the trial court sentenced Appellant to serve an aggregate term of



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three-and-a-half to eight years in prison, followed by three years of probation,

for his convictions.

      On direct appeal, this Court rejected Appellant’s claims that the police

illegally detained and frisked him and that the suppression court erred when

it denied his motion to suppress. See id. at 1-9. We reasoned:

        Here, while at a drugstore located in a high crime area in
        close proximity to where a robbery had occurred the day
        before, Cpl. Shave observed two men who matched the
        general description of the robbery suspects enter the store
        together.

        Importantly, one of the men was carrying a firearm in the
        exact same dangerous and highly unusual manner as one of
        the robbery suspects. Because of his concern for safety, Cpl.
        Shave requested police assistance, and relayed to the other
        officers his observations.     Upon police arrival at the
        drugstore, Appellant paced and stared at the officers,
        remaining in the store without purchasing anything, while
        police investigated his companion. Cpl. Dowds then engaged
        Appellant and conducted a pat-down search to determine
        whether he was carrying a weapon, “for [his] safety,” and
        because “in his training and experience, where there’s one
        gun, there possibly could be two guns.”

        Based on the foregoing, in light of the totality of the
        circumstances, and giving weight to the inferences Cpl.
        Dowds drew based on his training and experience, we
        conclude that the investigatory detention was supported by
        reasonable suspicion of criminal activity, and Cpl. Dowds’
        justifiable belief in the need to protect officer safety. Thus,
        the trial court properly denied Appellant’s motion to suppress
        evidence.

Id. at 8-9 (citations omitted).

      On February 7, 2017, we affirmed Appellant’s judgment of sentence.

Id. at 1-9.


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      Appellant filed a timely, pro se PCRA petition and the PCRA court

appointed counsel to represent Appellant during the proceedings. See, e.g.,

Appellant’s Pro Se PCRA Petition, 1/29/18, at 1-8. Counsel eventually filed an

amended PCRA petition on Appellant’s behalf. See Amended PCRA Petition,

7/16/18, at 1-8. Within the PCRA petition, Appellant claimed that his trial

counsel provided ineffective assistance during the suppression hearing

because counsel: failed to properly cross-examine Corporal Shave regarding

the statement given by the robbery victim that “he could not tell whether [the

dark handle he saw in the pocket of one of the perpetrators] was a gun or

not;” failed to properly cross-examine Corporal Shave regarding the

statement given by the robbery victim that “the same perpetrator also pulled

a large knife out and stuck it to [the victim’s] back;” and, failed to properly

argue to the suppression court “that the robbery victim’s statement did not

support the Commonwealth’s argument that the robbery victim ‘reported that

he believed the actor had a gun sticking out of his pocket.’” Id. at 4-5 and 7

(emphasis omitted). According to Appellant:

        It is clear that trial counsel’s ineffectiveness in failing to
        properly cross-examine [Corporal] Shave and make the
        corresponding argument to the [suppression] court caused
        prejudice. The [robbery] victim had stated that he could not
        tell whether the handle was a firearm or not.              The
        [suppression] court was unaware of the fact that the robbery
        victim who reported seeing a large handle had also reported
        seeing a large knife during the same encounter. Without the
        information regarding the large knife, the [suppression] court
        would certainly assume the handle was that of a gun and,
        therefore, credit this as a unique match between the two sets
        of individuals. Without the assumption that the handle was


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        that of a gun being carried in an unusual manner, the
        description of the two robbery suspects was insufficient to
        justify an investigatory detention of [Appellant] and Mr.
        Ernay.

Id. at 7.

      Further, Appellant attached to his PCRA petition a portion of the January

22, 2015 police incident report, which documented the robbery. In relevant

part, the police incident report declares:

        01/22/2015             05:07 . . .

        On the above date and time, I, [Police Officer Kirt Guyer],
        was dispatched to [a particular house] in reference to a
        robbery. Upon arrival[,] I met with [J.M.] who stated that he
        went outside to warm up his vehicle. . . . He stated that he
        was approached by two [black males] dressed in all black and
        wearing masks. He stated that they demanded that he give
        [them] money. He stated that he had no money on him so
        he gave them the car keys. They stated to him, “fuck your
        car, we know you got money.” He stated that he did not have
        his wallet on him and he told them that it was in the house.
        He wanted them to follow him in the house because he had
        guns in his house. He stated that one of the suspects implied
        that he had a gun and he did observe a dark handle in his
        pocket, but could not tell if it was a gun or not. The same
        suspect also pulled a large knife out and stuck it to [J.M.’s]
        back as he led him in his house. The other stood outside by
        the vehicle. . . .

Police Incident Report, dated 1/22/15, at 5 (attached as “Exhibit B” to

Appellant’s Amended PCRA Petition).

      On December 7, 2018, the PCRA court provided Appellant with notice

that it intended to dismiss his petition in 20 days, without holding a hearing.

PCRA Court Order, 12/7/18, at 1-7; see also Pa.R.Crim.P. 907(1). Appellant




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did not respond to the Rule 907 notice and, on January 15, 2019, the PCRA

court finally dismissed Appellant’s petition. PCRA Court Order, 1/15/19, at 1.

      Appellant filed a timely notice of appeal. He numbers two claims in his

statement of questions involved:

        1. Did the PCRA court err in failing to find trial counsel
        ineffective for failing to properly cross-examine [Corporal]
        Jonathan Shave during the suppression hearing conducted on
        September 23, 2015?

        2. Did the PCRA court err in failing to find trial counsel
        ineffective for failing to argue that the robbery victim’s
        statement did not support the Commonwealth’s argument
        during the suppression hearing?

Appellant’s Brief at 4.

      “We review a ruling by the PCRA court to determine whether it is

supported by the record and is free of legal error. Our standard of review of

a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar, 154

A.3d 287, 296 (Pa. 2017) (citations omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffective 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).



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     Counsel is presumed to be effective and “the burden of demonstrating

ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead

and prove by a preponderance of the evidence that:

       (1) his underlying claim is of arguable merit; (2) the
       particular course of conduct pursued by counsel did not have
       some reasonable basis designed to effectuate his interests;
       and, (3) but for counsel’s ineffectiveness, there is a
       reasonable probability that the outcome of the challenged
       proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has

explained:

       A claim has arguable merit where the factual averments, if
       accurate, could establish cause for relief.                 See
       Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
       (“if a petitioner raises allegations, which, even if accepted as
       true, do not establish the underlying claim . . . , he or she
       will have failed to establish the arguable merit prong related
       to the claim”). Whether the facts rise to the level of arguable
       merit is a legal determination.

       The test for deciding whether counsel had a reasonable basis
       for his action or inaction is whether no competent counsel
       would have chosen that action or inaction, or, the alternative,
       not chosen, offered a significantly greater potential chance of
       success. Counsel’s decisions will be considered reasonable if
       they effectuated his client's interests. We do not employ a
       hindsight analysis in comparing trial counsel's actions with
       other efforts he may have taken.

       Prejudice is established if there is a reasonable probability
       that, but for counsel’s errors, the result of the proceeding
       would have been different. A reasonable probability is a
       probability sufficient to undermine confidence in the
       outcome.



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Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some

quotations and citations omitted); see also Kimmelman v. Morrison, 477

U.S. 365, 375 (1986) (“[w]here defense counsel's failure to litigate a Fourth

Amendment claim competently is the principal allegation of ineffectiveness,

the defendant must [] prove that his Fourth Amendment claim is meritorious

and that there is a reasonable probability that the verdict would have been

different absent the excludable evidence in order to demonstrate actual

prejudice”). “A failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim.” Stewart, 84 A.3d at 707.

      Finally, a PCRA petitioner is not automatically entitled to an evidentiary

hearing on his petition. A PCRA petition may be dismissed without a hearing

if the PCRA court “is satisfied from [its review of the petition] that there are

no genuine issues concerning any material fact and that the [petitioner] is not

entitled to post-conviction collateral relief, and no purpose would be served

by any further proceedings.” Pa.R.Crim.P. 907(1). However, when the PCRA

petition raises material issues of fact, the PCRA court “shall order a hearing.”

Pa.R.Crim.P. 908(A)(2). Thus, “[t]o obtain reversal of a PCRA court's decision

to dismiss a petition without a hearing, an appellant must show that he raised

a genuine issue of fact which, if resolved in his favor, would have entitled him

to relief, or that the court otherwise abused its discretion in denying a

hearing.”   Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011)

(quotations and citations omitted).




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      First, Appellant claims that he is entitled to relief on his claims that,

during the suppression hearing, his trial counsel was ineffective for failing to

“properly cross-examine Corporal Shave” regarding the fact that the robbery

victim told the police: “he could not tell whether [the dark handle he saw in

the pocket of one of the perpetrators] was a gun or not” and “the same

perpetrator also pulled a large knife out and stuck it to [the victim’s] back.”

Appellant’s Brief at 15. These claims fail.

      Appellant’s first sub-claim contends that his trial counsel was ineffective

for failing to properly cross-examine Corporal Shave “regarding the fact that

the robbery victim told police ‘he could not tell whether [the dark handle he

saw in the pocket of one of the perpetrators] was a gun or not.’” Id. This

claim fails because, during the suppression hearing, Corporal Shave

specifically testified as to this point. To be sure, during Corporal Shave’s direct

testimony, the corporal read from the police incident report, which

documented the earlier robbery. Corporal Shave testified:

        On page five . . . [of the police incident report,] there is a
        main narrative that was written by Officer Kirt Guyer. . . .
        [T]he report states: [the robbery victim] stated that one of
        the suspects implied that he had a gun and he did
        observe a dark handle in his pocket, but he could not
        tell if it was a gun or not.

N.T. Suppression Hearing, 9/23/15, at 12-13 (emphasis added).

      Therefore, the suppression court was well aware of the fact that the

robbery victim “could not tell whether [the dark handle he saw in the pocket

of one of the perpetrators] was a gun or not.” See Appellant’s Brief at 15.


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Appellant’s claim that trial counsel was ineffective for failing to have Corporal

Shave reiterate this fact during cross-examination fails, as Appellant did not

suffer prejudice from this alleged failing.

      Appellant also claims that his trial counsel was ineffective for failing to

cross-examine Corporal Shave regarding the fact that the robbery victim told

the police “the same perpetrator also pulled a large knife out and stuck it to

his back.” Appellant’s Brief at 15. Appellant contends that this failure was

prejudicial because the suppression court was never made aware that “the

large handle upon which [Corporal] Shave placed so much weight with regard

to the identification could have corresponded to the large knife which was

brandished.” Id. at 16. Further, Appellant argues, if the suppression court

knew that the robbery suspect possessed a large knife, the suppression court

would have concluded that the police did not have reasonable suspicion to

stop and frisk Appellant or his companion. See id. at 15-19.

      Contrary to Appellant’s argument on appeal, the fact that the

perpetrator “pulled a large knife out and stuck it to [the robbery victim’s]

back” does not prove that the “dark handle in [the perpetrator’s] pocket” was

the handle of a knife.     Further, and more importantly, the fact that the

perpetrator “pulled a large knife out and stuck it to [the robbery victim’s]

back” would not subtract from Corporal Shave’s reasonable suspicion that

Appellant and Mr. Ernay matched the description of the robbery suspects, in

part, because the corporal saw that Mr. Ernay had a firearm haphazardly

tucked into his pants pocket.

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      Certainly, the robbery victim attested to the police that: “one of the

suspects implied that he had a gun and [the victim] did observe a dark handle

in [the suspect’s] pocket, but could not tell if it was a gun or not. The same

suspect also pulled a large knife out and stuck it to [the victim’s] back as he

led him in his house.” Police Incident Report, dated 1/22/15, at 5. Therefore,

although the robbery victim told the police that the perpetrator “pulled a large

knife out,” the victim did not identify the “dark handle” as belonging to the

“large knife.” Rather, as to the “dark handle,” the robbery victim only stated:

“one of the suspects implied that he had a gun and [the robbery victim] did

observe a dark handle in [the suspect’s] pocket, but could not tell if it was a

gun or not.” Id.

      Given the robbery victim’s statement that “one of the suspects implied

that he had a gun and [the victim] did observe a dark handle in [the suspect’s]

pocket,” Corporal Shave was entitled to believe that the “dark handle” in the

perpetrator’s pocket was possibly a gun.           Corporal Shave thus acted

reasonably when he suspected that Appellant and Mr. Ernay matched the

description of the robbery suspects, partially because the corporal saw that

Mr. Ernay had a firearm tucked into his pants pocket. We thus conclude that,

even if the suppression court were made aware of the fact that the robbery

suspect “pulled a large knife out and stuck it to [the robbery victim’s] back,”

the suppression court would have still concluded that the police had

reasonable suspicion to stop and frisk Appellant. Therefore, since “there is

[no] reasonable probability that, but for [trial] counsel’s [alleged] error[], the

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result of the proceeding would have been different,” Appellant’s claim on

appeal must fail.   See Stewart, 84 A.3d at 707 (quotations and citations

omitted).

      Finally, Appellant claims that the PCRA court erred when it “fail[ed] to

find trial counsel ineffective for failing to argue that the robbery victim’s

statement did not support the Commonwealth’s argument during the

suppression hearing.” Appellant’s Brief at 4. The PCRA court ably explained

why this claim fails:

        [Appellant] argues that trial counsel was ineffective for failing
        to argue that the robbery victim’s statement did not support
        the Commonwealth’s argument [during the suppression
        hearing] that the robbery victim “reported that he believed
        the actor had a gun sticking out of his pocket.” Specifically,
        [Appellant] contends that trial counsel was ineffective for
        failing to argue that the victim never testified that the suspect
        had a gun sticking out of his pocket and these facts do not
        support the Commonwealth’s argument.

        During closing arguments in the suppression hearing, the
        Commonwealth argued “it’s not just about the skin color or
        the height issue, but the key is the gun sticking out of the
        pocket in that manner.” The Commonwealth’s arguments are
        not binding on the fact finder, are not part of the evidence,
        and are not required to be accepted by the fact finder. The
        prosecutor, as well as defense counsel, must have reasonable
        latitude to present their case with logical force and vigor. The
        Commonwealth’s remarks to the [suppression] court may
        contain fair deductions and reasonable inferences from the
        evidence presented; however, personal opinions may not be
        offered.

            [C]omments by a prosecutor do not constitute reversible
            error unless the “unavoidable effect of such comments
            would be to prejudice the jury, forming in their minds
            fixed bias and hostility toward the defendant so that they
            could not weigh the evidence objectively and render a

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            true verdict.” Furthermore, the prejudicial effect of the
            prosecutor's remarks must be evaluated in the context in
            which they occurred.

        [Commonwealth v. Chmiel, 777 A.2d 459, 466 (Pa. Super.
        2001) (citations and paragraphing and some quotations
        omitted); see also Commonwealth v. Irwin, 579 A.2d
        955, 957 (Pa. Super. 1990) (“[i]t has long been held that trial
        judges, sitting as factfinders, are presumed to ignore
        prejudicial evidence in reaching a verdict”)].

        [Appellant] has failed to establish how the Commonwealth’s
        remarks prejudiced him. The [suppression] court’s decision
        to deny the suppression [motion was] based upon more than
        this one argument. The [suppression] court was aware that
        the victim of the robbery did not specifically state that the
        perpetrator was carrying a firearm. . . .           Therefore,
        [Appellant] has failed to provide evidence that trial counsel’s
        argument would have altered the outcome of the
        proceedings.

PCRA Court Order, 12/7/18, at n.1 (some citations and capitalization omitted).

      We agree and conclude that Appellant’s final claim on appeal thus fails.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/19




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