J-S41031-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                      v.                  :
                                          :
DETRICK S. DAWKINS,                       :
                                          :
                 Appellant                :     No. 64 MDA 2019

          Appeal from the PCRA Order Entered December 31, 2018
             in the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0004529-2012

BEFORE:     LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*

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

      Detrick S. Dawkins (Appellant) appeals from the December 31, 2018

order dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

      A prior panel of this Court provided the following factual and

procedural history.

      Appellant was charged with, inter alia, possession with intent to
      deliver (PWID) following two controlled buys of crack cocaine
      inside 316 Hummel Street. Based on the controlled buys, a
      search warrant was executed for the residence at 316 Hummel
      Street. Within the residence, officers recovered, inter alia, crack
      cocaine, cash, packaging paraphernalia, cutting agent, indicia for
      Appellant,1 and five cell phones. Prior to trial, Appellant filed a
      motion to suppress the search of the residence. Following a
      hearing, the trial court denied the motion on January 15, 2014.
            ______
            1 Several items recovered from the middle bedroom bore

            Appellant’s name, including a luggage tag, receipt, mail,
            and a social security card.


*Retired Senior Judge assigned to the Superior Court.
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           A second search warrant was obtained and executed on
     February 6, 2014, to search the seized cell phones. “One of the
     phones, a Samsung Galaxy, matched the phone number that the
     [confidential informant] called to make the drug buys. Photos
     recovered from th[at] cell phone depicted images of
     [Appellant].” PCRA Court Opinion, 1/8/2018, at 1 n.1. Appellant
     did not file a motion to suppress this evidence.

           Appellant proceeded to a jury trial and was found guilty of
     PWID.2 On September 9, 2014, Appellant was sentenced to a
     term of 27 to 54 months of incarceration. This Court affirmed
     Appellant’s judgment of sentence. See Commonwealth v.
     Dawkins, 151 A.3d 1136 (Pa. Super. 2016) (unpublished
     memorandum). Appellant did not file a petition for allowance of
     appeal with our Supreme Court.
           ______
           2 Appellant was found not guilty of persons not to possess

           a firearm, and the Commonwealth withdrew the remaining
           charges.

            On July 25, 2016, Appellant pro se timely filed a PCRA
     petition. The PCRA court appointed counsel, who filed a motion
     for evidentiary hearing on March 13, 2017. Appellant
     alleged, inter alia, ineffective assistance of appellate counsel for
     failing to file a petition for allowance of appeal, and ineffective
     assistance of trial counsel for failing to file a motion to suppress
     the search of the cell phones.

Commonwealth       v.   Dawkins,        198   A.3d   424   (Pa.   Super.    2018)

(unpublished memorandum at 1-3).

     Appellant asserted in his initial pro se PCRA petition that Officer

Stewart searched the Samsung Galaxy’s data to determine which phone

number   was   associated   with   it   prior   to   securing   the   warrant,   in




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contravention of Riley v. California, 573 U.S. 373 (2014).1 PCRA Petition,

7/25/2016, at 4-7. According to Appellant, “[b]ecause the initial search of

the phone was done without a warrant, any subsequent information obtained

was tainted by the illegality of the primary search [and c]ounsel should have

objected[.]” Id. at 7; see also Motion for Evidentiary Hearing, 3/13/2017,

at ¶ 9.

      At the July 7, 2017 hearing on this issue, Officer Stewart testified that

the cell phones were not accessed or searched until the execution of the

second search warrant. N.T., 7/7/2017, at 38. Trial counsel testified that

he did not believe there was any reason to move to suppress the evidence

from the search of the cell phones because the police’s holding of the cell

phones in police custody resulted in “a snapshot in time” of the cell phones

at the point they were seized, which tolled any potential staleness. Id. at

20-21.    The PCRA court permitted the filing of post-hearing briefs.    In his

brief, Appellant expanded his claim to include an allegation that trial counsel

was ineffective for failing to object to the search warrant on staleness

grounds.    See Post-Evidentiary Hearing Filing to Supplement PCRA and

Argument in Support of Relief, 8/2/2017, at 6-7, 9.


1 In Riley, the Supreme Court of the United States held that officers must
generally obtain a search warrant to search data on a cell phone, “even
when a cell phone is seized incident to arrest[,]” although “other case-
specific exceptions may still justify a warrantless search of a particular
phone.” 573 U.S. at 401-02.



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             On January 8, 2018, the PCRA court granted in part and
      denied in part Appellant’s PCRA petition. The PCRA court granted
      Appellant’s PCRA petition as to his ineffective assistance of
      appellate counsel claim by reinstating his right to file a petition
      for allowance of appeal. Simultaneously, the PCRA court ruled on
      and dismissed the remainder of Appellant’s PCRA petition,
      including his ineffective assistance of trial counsel claim.

Dawkins, 198 A.3d 424 (unpublished memorandum at 3).

      The PCRA court credited the testimony of Officer Stewart and trial

counsel, and found that Appellant failed to meet his burden of establishing

the ineffective assistance of trial counsel.       Specifically, it addressed

Appellant’s claim as follows.

      Riley involves a warrantless search of a cell phone obtained
      from a defendant pursuant to a search incident to arrest. In the
      instant case, a valid search warrant was initially executed for the
      home, and testimony revealed that the contents of the cell
      phone[s] were not reviewed prior to the police obtaining a
      second warrant. The length of time between the first search
      warrant for the home and the second search warrant for the
      phones does not render the information stale, as [Appellant]
      contends. The phones had been in custody and secured, so
      there was little risk that any information had changed. Even if
      trial counsel’s decision not to pursue suppression was in error,
      such would not rise to the level of prejudice, given the
      abundance of evidence of guilt presented at trial. [Appellant]
      has not met his burden of establishing ineffective assistance of
      trial counsel.

PCRA Court Opinion, 1/8/2018, at 4 (some citations omitted).

            Appellant filed a petition for allowance of appeal with our
      Supreme Court on February 3, 2018, from this Court’s decision
      affirming his judgment of sentence. On February 5, 2018, while
      the petition for allowance of appeal was pending, Appellant filed
      [a] notice of appeal from the PCRA court’s order that denied the
      remainder of his PCRA claims.



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Dawkins, 198 A.3d 424 (unpublished memorandum at 3).

      On appeal to this Court, we affirmed in part and vacated in part the

January 8, 2018 PCRA order because “[w]hen the PCRA court reinstated

Appellant’s right to file a petition for allowance of appeal, his sentence was

no longer final. Thus, the PCRA court did not have jurisdiction to consider

the merits of Appellant’s remaining PCRA claims, and consequently, neither

d[id] this Court.”     Id. (unpublished memorandum at 4-5) (citations

omitted).   We further pointed out that “[b]ecause the PCRA court already

held hearings on Appellant’s remaining PCRA claims, it may use the already

developed evidentiary record in a future PCRA proceeding, and may

supplement the record as it sees fit.” Id. (unpublished memorandum at 5

n.3) (citation omitted).

      Our Supreme Court denied Appellant’s February 3, 2018 petition for

allowance of appeal on June 4, 2018.       See Commonwealth v. Dawkins,

186 A.3d 945 (Pa. 2018).     Appellant timely filed a second amended PCRA

petition on October 5, 2018, re-raising his prior PCRA claim that trial counsel

was ineffective for failing to file a motion to suppress the evidence obtained

in the second search warrant. PCRA Petition, 10/5/2018, at 3-5. Relying on

the already developed evidentiary record, the PCRA court dismissed

Appellant’s PCRA petition. PCRA Order, 12/31/2018.




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      This timely-filed notice of appeal followed.2     On appeal, Appellant

claims the PCRA court erred in denying his ineffective assistance of trial

counsel claim for failing to file a motion to suppress the cell phone evidence.

See Appellant’s Brief at 3. According to Appellant, he established all three

prongs for ineffective assistance of counsel. Id. at 17-18, 22-23. Further,

Appellant argues that the second search warrant was overly broad and relied

on stale information.   Id. at 12-14.    In doing so, he relies upon Riley,

supra, to support his claim.

      We begin with our standard of review.

             This Court analyzes PCRA appeals in the light most
      favorable to the prevailing party at the PCRA level. Our review
      is limited to the findings of the PCRA court and the evidence of
      record and we do not disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error.
      Similarly, we grant great deference to the factual findings of the
      PCRA court and will not disturb those findings unless they have
      no support in the record. However, we afford no such deference
      to its legal conclusions. Where the petitioner raises questions of
      law, our standard of review is de novo and our scope of review is
      plenary. Finally, we may affirm a PCRA court’s decision on any
      grounds if the record supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).




2Appellant complied with Pa.R.A.P. 1925(b). In lieu of an opinion, the PCRA
court relied on its January 8, 2018 memorandum opinion.                 See
Memorandum Statement in Lieu of Opinion, 5/28/2019.




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     “To establish ineffectiveness of counsel, a PCRA petitioner must show

the underlying claim has arguable merit, counsel’s actions lacked any

reasonable    basis,     and     counsel’s    actions   prejudiced   the   petitioner.”

Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citations

omitted). “A failure to satisfy any prong of the ineffectiveness test requires

rejection of the claim of ineffectiveness.” Commonwealth v. Daniels, 963

A.2d 409, 419 (Pa. 2009).

      While we agree with Appellant that additional messages or phone calls

could have been placed to the cell phones after they were seized, this does

not negate the PCRA court’s finding that the evidence pertaining to the

time of the controlled buys would have remained unchanged because the

phones were untouched while in police custody. Upon review, we find that

the PCRA court’s findings are supported by the record and are free of legal

error. Accordingly, we conclude that Appellant has not established that the

underlying claim has arguable merit because the lapse in time did not render

the information stale.         Even if it did, he failed to establish that he was

prejudiced by counsel’s failure to file a motion to suppress the evidence from

the cell phone search given the abundant evidence from the two controlled

buys and the initial search of the residence. Thus, the PCRA court did not

err in dismissing Appellant’s PCRA petition. See Daniels, supra (“A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim

of ineffectiveness.”).


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     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 08/16/2019




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