J-S51037-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
                   Appellee                 :
                                            :
              v.                            :
                                            :
ANTOINE MAURICE BLACK,                      :
                                            :
                   Appellant                :            No. 367 MDA 2014

              Appeal from the Order entered on January 22, 2014
               in the Court of Common Pleas of Dauphin County,
                 Criminal Division, No. CP-22-CR-0003493-2010

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED NOVEMBER 18, 2014

        Antoine Maurice Black (“Black”), pro se, appeals from the Order

denying his first Petition for relief filed pursuant to the Post Conviction Relief

Act (“PCRA”).1 We affirm.

        The PCRA court summarized the history relevant to the instant appeal

as follows:

               On June 15, 2010, [Black] was stopped for a traffic
        violation. His information and that of his passenger were run
        and [Black] was taken into custody on an unrelated matter,
        along with his passenger. As per standard procedure and at the
        direction of [Harrisburg Police] Officer [Michael] McCormick
        [“Officer McCormick”], the police informed [Black] that his
        vehicle was going to be towed[,] since it was parked too close to
        the stop sign.

             The officers requested his keys, to which [Black] refused.
        The officers explained that it was standard police procedure to
        conduct an inventory search of towed vehicles as the vehicle’s

1
    42 Pa.C.S.A. §§ 9541-9546.
J-S51037-14


     are taken to Don’s Towing Lot and anything of value over five
     dollars is inventoried. Prior to towing and searching the vehicle
     and while on the scene, Officer McCormick called his supervisor
     for approval to conduct said inventory search. [His supervisor]
     looked through the computer system to try and find a phone
     number for Ms. Patricia Louise Darty (hereinafter “Ms. Darty”),
     the owner of the car per its registration, but was unable to locate
     one. Ms. Darty testified that she is [Black’s] cousin. The vehicle
     [that Black] was driving on June 15, 2010, is in Ms. Darty’s
     name, i.e., the title, tags, and insurance. However, Ms. Darty
     testified that it is not her vehicle and that [Black] drives it. Ms.
     Darty put the vehicle in her name because [Black] told her [that]
     he could not have it in his name. Ms. Darty has driven the
     vehicle approximately three (3) times before. Ms. Darty does
     not know the current location of the vehicle.

            [Police] Officer [Matthew] Haflett [“Officer Haflett”]
     conducted a search of the trunk of the vehicle…. When he
     arrived at the right side of the trunk, he noticed a CD changer
     that was bolted to the side of the vehicle. There was about a
     three (3) inch space between the side of the trunk and the CD
     changer wherein Officer Haflett observed a baby sock with pink
     glassine plastic baggies protruding from the top…. Specifically,
     there were twenty-eight (28) pink baggies and one (1)
     blue/purple baggie with a dolphin emblem. Based upon his
     training and experience, Officer Haflett suspected the baggies
     contained crack cocaine. As a result, he field tested the contents
     of the baggies[,] which resulted positive for crack cocaine.
     Thereafter, the drugs were sent to the Pennsylvania State Police
     Lab for testing. The lab report indicated that the drugs were
     tested and confirmed to be over five (5) grams of crack
     cocaine….

Trial Court Opinion, 3/13/14, at 3-4.   Black was transported to the police

station. Id. at 5. During a strip search of Black conducted upon his arrival

at the station, officers discovered a blue/purple baggie with a dolphin

emblem. Id. The baggie matched the baggies found in the baby sock found

in the vehicle. Id. That baggie contained 0.18 grams of crack cocaine. Id.




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        Black was charged with possession with intent to deliver a controlled

substance, possession of drug paraphernalia, driving without a license,

driving while operating privileges are suspended or revoked, and the

summary offense of turning movements and required signals.2 Represented

by the public defender’s office, Black filed a pre-trial suppression Motion,

which the suppression court denied.

        A jury convicted Black of the above-described charges.   On January

17, 2013, the trial court sentenced Black to an aggregate prison term of

three to six years, followed by one year of probation.        The trial court

credited Black with the time he served in jail from December 4, 2012 to

January 16, 2013.      After sentencing, Black requested leave to represent

himself during his direct appeal.   After a hearing, Black was permitted to

proceed pro se. On direct appeal, this Court affirmed Black’s judgment of

sentence, after which the Pennsylvania Supreme Court denied allowance of

appeal.     Commonwealth v. Black, 91 A.3d 1286 (Pa. Super. 2013)

(unpublished memorandum), appeal denied, 2013 Pa. LEXIS 2027.

        On November 23, 2013, Black, pro se, timely filed his first PCRA

Petition.   The PCRA court appointed Jennifer Tobias, Esquire (“Attorney

Tobias”), to represent Black. On January 15, 2014, Attorney Tobias filed a

Petition to withdraw from representation pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550


2
    35 P.S. §§ 780-113(a)(30), (32); 75 Pa.C.S.A. §§ 1501, 1543, 3334.


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A.2d 213 (Pa. Super. 1988) (en banc). Thereafter, the PCRA court issued

Notice of its intention to dismiss Black’s PCRA Petition and a Memorandum

Opinion.   On January 22, 2014, the PCRA court denied Black’s Petition.

Black timely filed a Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of Matters Complained of on Appeal.

     On appeal, Black presents the following claims for our review:

     (A). Whether PCRA counsel, [Attorney Tobias], gave ineffective
     assistance[] for failing to raise ineffective assistance of trial
     counsel, … for failing to raise ineffective assistan[ce] of
     suppression hearing counsel, … for failing to object to Officer
     McCormick’s testimony at the suppression hearing, and at trial
     concerning [Black’s] vehicle being a safety hazard[?]

     (B). Whether PCRA counsel, [Attorney Tobias], gave ineffective
     assistance[] for failing to raise ineffective assistance of trial
     counsel, … for failing to raise ineffective assistan[ce] of
     suppression hearing counsel, … for failing to raise a “weight
     claim” defense during pre-trial, trial and post-sentence, when
     [Black] asked them to raise this claim[?]

     (C). Whether PCRA counsel, [Attorney Tobias], gave ineffective
     assistance[] for failing to raise ineffective assistance of trial
     counsel, … for failing to raise ineffective assistan[ce] of
     suppression hearing counsel, … for failing to investigate [Black’s]
     actual innocence[?]

     (D). Whether PCRA counsel, [Attorney Tobias], gave ineffective
     assistance[] for failing to raise ineffective assistance of trial
     counsel, … for failing to raise ineffective assistan[ce] of
     suppression hearing counsel, … for citing the wrong case law[]
     and statute at [Black’s] suppression hearing, prejudicing [Black]
     in the process[?]

     (E). Whether PCRA counsel, [Attorney Tobias], gave ineffective
     assistance[] for failing to raise ineffective assistance of
     suppression hearing counsel, … for failing to argue [that] “trial
     court erred and abused its discretion[] by denying [Black’s]
     Motion to Suppress Evidence found in [Black’s] vehicle”; “[t]he


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      police had no probable cause to tow[] and inventory search
      [Black’s] vehicle without a search warrant”[;] [and that] “[t]his
      constituted [] a ‘warrantless search[]’”[?]

      (F). Whether PCRA counsel, [Attorney Tobias], gave ineffective
      assistance[] for failing to raise ineffective assistance of trial
      counsel, … for failing to raise ineffective assistan[ce] of
      suppression hearing counsel, … for failing to argue[] “the plain
      view doctrine,” as a defense for [Black?]

      (G). Whether PCRA counsel, [Attorney Tobias], trial counsel, …
      and suppression hearing counsel, … completely abandon[ed]
      [Black] by not filing any motions [or] appeals, when [Black]
      asked them to do so, violating [Black’s] sixth [] Amendment
      right to effective assistance of counsel at [sic] at stages of the
      appeal process[?]

Brief for Appellant at 5-7 (emphasis in original).

      An appellate court’s standard of review regarding an order denying a

PCRA petition is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.     Commonwealth v.

Kretchmar, 971 A.2d 1249, 1251 (Pa. Super. 2009).            The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.   Commonwealth v. Treadwell, 911 A.2d 987, 989

(Pa. Super. 2006).

      Black’s seven issues assert various claims of ineffective assistance of

counsel. To be eligible for relief based on a claim of ineffective assistance of

counsel, a PCRA petitioner must demonstrate, by a preponderance of the

evidence, that (1) the underlying claim is of arguable merit; (2) no

reasonable basis existed for counsel’s action or omission; and (3) there is a

reasonable probability that the result of the proceeding would have been


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different absent such error. Commonwealth v. Steele, 961 A.2d 786, 796

(Pa. 2008). With regard to the second, i.e., the “reasonable basis” prong,

this Court will conclude that counsel’s chosen strategy lacked a reasonable

basis only if the appellant proves that “an alternative not chosen offered a

potential for success substantially greater than the course actually pursued.”

Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (citation

omitted).     To establish the third prong, i.e., prejudice, the appellant must

show that there is a reasonable probability that the outcome of the

proceedings would have been different but for counsel’s action or inaction.

Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).

      Black first claims that PCRA counsel rendered ineffective assistance by

failing to claim that his suppression hearing counsel rendered ineffective

assistance.    Brief for Appellant at 10.   Black asserts that his suppression

hearing counsel rendered ineffective assistance by failing to object to the

testimony of Officer McCormick that Black’s vehicle presented a safety

hazard, which justified towing the vehicle. Id. at 12. According to Black,

Officer McCormick’s suppression hearing testimony directly contradicted his

testimony at the preliminary hearing. Id. At the preliminary hearing, Black

asserts, Officer McCormick testified that Black’s car was not a safety hazard.

Id.    Black contends that his suppression hearing counsel rendered

ineffective assistance by failing to object to Officer McCormick’s testimony on

this basis. Id. at 13.



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      Our review of the record discloses that Black did not raise this claim in

his pro se PCRA Petition.    To overcome this waiver, Black avers that his

PCRA counsel rendered ineffective assistance by not raising this claim. The

record, however, discloses no arguable merit to Black’s ineffectiveness

claims.

      Black’s underlying ineffectiveness claim is premised upon his assertion

that Officer McCormick’s suppression hearing testimony contradicted the

testimony he presented at the preliminary hearing. However, the notes of

testimony from the preliminary hearing are not included in the certified

record. In his appellate brief, Black has attached an affidavit, dated March

21, 2014, averring that Officer McCormick testified at the preliminary

hearing that Black’s vehicle presented no safety hazard. This affidavit was

not presented to the PCRA court and is not part of the certified record.

      “[D]ocuments which are not part of the certified record on appeal are

considered to be non-existent.” Lundy v. Manchel, 865 A.2d 850, 855 (Pa.

Super. 2004). “[T]hese deficiencies may not be remedied by inclusion in a

brief.”   Id.   Those items that do not appear of record do not exist for

appellate purposes.    Stumpf v. Nye, 950 A.2d 1032, 1041 (Pa. Super.

2008). Because Black did not raise this claim in his pro se PCRA Petition and

the record includes no evidence supporting for his claim, Black has failed to

establish arguable merit to his claim of ineffective assistance of suppression




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hearing counsel or PCRA counsel. Therefore, we cannot grant him relief on

this claim.3

      Black next claims that his trial counsel rendered ineffective assistance

by failing to file a post-sentence motion challenging the verdict as against

the weight of the evidence.   Brief for Appellant at 15.   In its Opinion, the

PCRA court addressed this claim and concluded that it lacks merit.      PCRA

Court Opinion, 3/13/14, at 8-9. We agree with the reasoning of the PCRA

court, and affirm on this basis. See id.

      In his third claim, Black argues that his PCRA counsel rendered

ineffective assistance by failing to claim the ineffective assistance of prior

counsel for not investigating his “actual innocence.”   Brief for Appellant at

23.   In support, Black asserts that his claim has arguable merit because the

evidence was not sufficient to sustain his verdict. Id. at 24. In this regard,

Black asserts that “the lab results proved [that his] fingerprints or DNA

wasn’t on the sandwich baggie,” and that police did not charge him related

to contraband found during his strip search. Id.

      Our review of the record discloses that in his Pa.R.A.P. 1925(b)

Concise Statement, Black’s ineffectiveness claim did not address the

sufficiency of the evidence. Rather, Black presented the following claim:

3
  In his Affidavit of Probable Cause, which is part of the record, Officer
McCormick averred that Black’s vehicle “was parked illegally at the
intersection. It was parked directly next to a stop sign and more than 12”
from the curb.” Affidavit of Probable Cause, 6/15/10. Officer McCormick’s
suppression hearing testimony was consistent with this statement. See
N.T., 6/7/11, at 5.


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      PCRA Counsel … gave ineffective assistance for failing to raise
      the ineffective assistance of trial counsel, … for failing to raise
      the ineffective assistance of Suppression Hearing counsel, … for
      failing to investigate [Black’s] actual innocence….

Concise Statement, ¶ 3.       Because Black’s Concise Statement raised a

boilerplate and vague claim, the PCRA court concluded that the claim was

waived and denied relief. PCRA Court Opinion, 3/13/14, at 9. We agree,

and affirm on this basis. See id.

      Black next claims that his suppression counsel rendered ineffective

assistance by citing “the wrong caselaw and statute” at his suppression

hearing.   Brief for Appellant at 28.      Black argues that his suppression

counsel referred to Pennsylvania Constitution Article I, section 9, rather than

section 8, as the provision applicable to illegal searches and seizure. Id. at

29. Black claims that his PCRA counsel rendered ineffective assistance by

not raising this claim. Id. at 28.

      In its Opinion, the PCRA court addressed this claim and concluded that

it lacks merit. PCRA Court Opinion, 3/13/14, at 9-11. We agree with the

PCRA court’s determination that suppression counsel did not render

ineffective assistance by stating the wrong section number.        Id. at 10.

Accordingly, we affirm on the basis of the PCRA court’s Opinion with regard

to this claim.4 See id. at 9-11.




4
  We do not adopt the PCRA court’s speculation as to suppression hearing
counsel’s motivation for failing to correct his error.


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      In his fifth claim, Black asserts that his trial counsel rendered

ineffective assistance by failing to challenge the suppression court’s denial of

Black’s suppression Motion. Brief for Appellant at 30. Black asserts that the

Commonwealth failed to prove that he constructively possessed the

controlled substances found in the vehicle; the police officers failed to follow

a uniform policy on inventory searches; and there were no exigent

circumstances permitting a search of the vehicle without a warrant. Id. at

33-42.

      In order to be eligible for PCRA relief, Black was required to plead and

prove that “the allegation of error has not been previously litigated or

waived.” 42 Pa.C.S.A. § 9543(a)(3). “[A]n issue is waived if the petitioner

could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal or in a prior state post-conviction proceeding.” Id.

§ 9544(b).

      Our review of the record discloses that Black did not raise this claim in

his pro se direct appeal. Because this claim could have been raised on direct

appeal and Black failed to do so, Black’s claim is not cognizable under the

PCRA. Black’s PCRA counsel cannot be deemed ineffective for failing to raise

a claim that is without merit. See Commonwealth v. Fears, 86 A.3d 795,

804 (Pa. 2014) (stating that counsel cannot be deemed ineffective for failing

to raise a claim that lacks merit). Accordingly, we cannot grant Black relief

on this claim.



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      In his sixth claim, Black argues that his suppression counsel rendered

ineffective assistance by failing to argue the “plain view” doctrine as a

defense.     Brief for Appellant at 44.    Black asserts that his PCRA counsel

rendered ineffective assistance by not raising this claim before the PCRA

court. Id.

      Our review discloses that during his pro se direct appeal, Black did not

challenge the legality of the vehicle search and the applicability of the plain

view doctrine. Because Black could have raised this issue on direct appeal,

and failed to do so, he was not eligible for relief under the PCRA. See 42

Pa.C.S.A. § 9543(a)(3). Black’s PCRA counsel cannot be deemed ineffective

for failing to raise a claim that is without merit. See Fears, 86 A.3d at 804.

Accordingly, we cannot grant Black relief on this claim.

      In his seventh claim, Black argues that all prior counsel rendered

ineffective assistance “by not filing any motions [or] appeals, when [Black]

asked them to do so, violating [Black’s] Sixth (6th) Amendment right to

effective assistance of counsel, at all stages of the proceedings.” Brief for

Appellant at 57 (emphasis omitted). In support, Black argues that his PCRA

counsel refused to file an amended PCRA petition.       Id. at 58.   Black also

claims that his trial counsel rendered ineffective assistance. Id.

      In its Opinion, the PCRA court addressed this claim and concluded that

it lacks merit. PCRA Court Opinion, 3/13/14, at 12. We agree, and affirm

based upon the reasons stated in the PCRA court’s Opinion. See id.



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     Order affirmed.

     Ott, J., joins the memorandum.

     Bowes, J., files a concurring statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2014




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