J-S06040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

STEPHEN STEPHEN SMITH,

                         Appellant                    No. 975 MDA 2015


                 Appeal from the PCRA Order May 14, 2015
             In the Court of Common Pleas of Schuylkill County
            Criminal Division at No(s): CP-54-CR-0000996-2011


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                  FILED FEBRUARY 11, 2016

      Stephen Smith (“Appellant”) appeals from an order denying him

collateral relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-

9546 (“PCRA”).     Specifically, he contends counsel rendered ineffective

assistance at the hearing on his motion to suppress evidence obtained

during a parole officer’s search of his residence. We affirm.

      In our disposition of Appellant’s direct appeal, we related the following

factual and procedural history of Appellant’s case:

            On    August    1,   2010,    Agents   Ronald   Thompson
      (“Thompson”) and Frank Horvath (“Horvath”) of the
      Commonwealth’s Board of Probation and Parole, arrived at
      Appellant’s home in Auburn, Schuylkill County, for an
      unannounced home visit. They had received an anonymous
      phone call that there were drugs and a gun in the home where
      Appellant was residing and that Appellant was using drugs. A
      few days prior, Thompson had determined that Appellant had
      three outstanding traffic citations [from Ocean City, Maryland]
      which were all violations of Appellant’s parole. Upon arrival at

*Former Justice specially assigned to the Superior Court.
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      the home, the agents requested Appellant to come outside and
      meet them at the patrol car to discuss Appellant’s status further.
      Appellant admitted that he had recently been out of state which
      was also a parole violation. [According to Thompson, Appellant
      also admitted to using cocaine, marijuana, and alcohol, and an
      instant urinalysis tested positive for cocaine and marijuana.

            The agents then handcuffed Appellant, cleared the house
      of other people, took Appellant into the home.] The [a]gents
      then discovered the various items of contraband in . . .
      Appellant’s bedroom, after which they took . . . Appellant into
      custody and alerted the State Police. The State Police arrived
      and conducted the search of the home as well as an adjacent
      recreational trailer situate in the back yard. Based upon the
      search, they arrested . . . Appellant, and charged him with [ten
      counts pertaining to possession and possession with intent to
      deliver].    The Complaint and Information were filed and
      proceeded through the Court of Common Pleas to jury trial. . . .
      [The trial] concluded on October 24, 2012, with the jury’s verdict
      finding Appellant guilty on all ten charges.

Commonwealth v. Smith, No. 2212 MDA 2012, unpublished memorandum

at 2, (Pa.Super. filed March 31, 2014) (citing Trial Court Opinion, filed

2/6/2013, at 3-5).

      Sentenced to an aggregate term of 8 to 16 years’ imprisonment,

Appellant filed a direct appeal challenging, inter alia, the order denying his

motion to suppress evidence. Specifically, Appellant argued that the search

of his property was invalid because agents neither possessed reasonable

suspicion to believe he had committed a parole violation nor obtained their

supervisor’s prior approval to conduct the search. Id. at 5.            In our

memorandum      decision,   we   noted   the   suppression   court’s   following

observations on evidence developed during counsel’s cross-examination of

Agent Thompson:

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      [Appellant’s] argument rests on the paper records of the day [of
      the search], consisting of handwritten notes and a typed report
      created by Agent Thompson.          The handwritten notes are
      completely silent regarding [Appellant’s] admission to the agents
      that he was using drugs and the positive instant urinalysis. The
      typed report entitled “Notice of Charges and Hearing” dated
      August 3, 2010 fails to state when [it was], during the sequence
      of events, that [Appellant] admitted he was using drugs. The
      report is completely silent as to the positive drug test. An
      accompanying “Technical Violation Arrest Report” dated August
      3, 2010 also indicates in a check-marked box that prior
      supervisor approval for the search was not obtained.

Id. at 5 (citing Suppression Court Opinion, filed 1/25/2013, at 2).

      Agent Thompson, however, denied that his notes and arrest report

recounted all events preceding the search, and he insisted he also obtained

his supervisor’s approval and secured Appellant’s positive urinalysis test

result and admission of drug use beforehand. N.T. Suppression, 9/6/12, at

22-23. Testifying consistently with this account, Agent Horvath recalled how

Agent Thompson asked Appellant whether he would test “hot” on a urine

test if he took one at the scene, which prompted Appellant to admit he was

using cocaine, marijuana, and alcohol.        N.T. at 41.      Agent Thompson

administered the instant urine test immediately, Agent Horvath continued,

and the results were positive for marijuana and cocaine. Id.

      The suppression court deemed the Agents’ testimonies credible in all

respects and discounted conflicting paperwork on the issue of prior

supervisor approval as the result of a typographical error. See Suppression

Court Opinion at 5.     Adhering to precedent calling for appellate court

deference   to   a   suppression   court’s   credibility   determinations,   see

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Commonwealth v. Simmen, 58 A.3d 811, 817 (Pa.Super. 2012), we

discerned no error with the suppression court’s order denying Appellant’s

motion.

      Appellant filed a timely PCRA petition and obtained a hearing before

the PCRA court, at which he assailed the adequacy of suppression counsel’s

cross-examination of Agent Thompson and examination of Appellant’s

landlord, Richard Keller.    Specifically, PCRA counsel argued that prejudice

resulted from suppression counsel’s failure to draw attention to both a

technical violation arrest report and a criminal arrest and disposition report

filed by Thompson just prior to Appellant’s 2012 suppression hearing. The

two reports listed only the anonymous tip and Appellant’s illicit travel as

reasons offered for supervisor approval.    Had Thompson actually acquired

Appellant’s admission of guilt and a positive urinalysis test as he claimed at

the suppression hearing, PCRA counsel posited, he would have said so on

the 2012 reports, for they made the strongest case for gaining the

supervisor’s approval.      Failing to offer this evidence to impeach Agent

Thompson’s suppression hearing testimony constituted ineffective assistance

of counsel, PCRA counsel concluded. N.T. PCRA Hearing, 1/12/15 at 11-12.

      PCRA counsel also attacked suppression counsel’s failure to call

landlord Keller to testify that Agents Thompson and Horvath never apprised

him of Appellant’s admission or positive urinalysis.   At the PCRA hearing,

Keller testified that Thompson informed him about only the anonymous tip


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and Appellant’s admission of leaving the state.    N.T. at 32-33.     Revealing

this limitation in the conversation between Keller and Thompson was

likewise critical to impeaching the agents’ testimonies regarding Appellant’s

admission of guilt and urinalysis, PCRA counsel maintained.

     The    PCRA     court   deemed       suppression   counsel’s     advocacy

constitutionally sound despite Appellant’s contentions to the contrary.      It

was the court’s opinion that suppression counsel aptly cross-examined Agent

Thompson on the inconsistencies between what he reported and what he

later said with respect to his pre-search investigation of Appellant.

Nevertheless, the PCRA court reasoned, the suppression court exercised its

authority as finder of fact to credit Thompson’s testimony that the

admission, urinalysis, and supervisor’s approval all occurred despite his

failure to include them in his written reports.   Moreover, the PCRA court

minimized the importance of Keller’s PCRA testimony because the agents

had no legal obligation to apprise a landlord as to every reason supporting

their search of the tenant’s residence.    Accordingly, the court entered an

order denying collateral relief, although it granted relief on an unrelated

issue concerning the imposition of an unlawful mandatory minimum

sentence, and it remanded the matter for resentencing.              PCRA Court

Opinion, filed May 14, 2015, at 6-7. This timely appeal followed.

     Reiterating the positions taken in his PCRA petition and at his hearing,

Appellant contends suppression counsel rendered constitutionally deficient


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assistance in his cross-examination of Agent Thompson and examination of

Richard Keller.       Our standard of review from the grant or denial of post-

conviction   relief    is   limited   to   examining   whether   the   PCRA   court's

determination is supported by the evidence of record and whether it is free

of legal error. Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997).

“The PCRA court's factual determinations are entitled to deference, but its

legal determinations are subject to our plenary review.” Commonwealth v.

Hawkins, 894 A.2d 716, 722 (Pa. 2006); see also Commonwealth v.

Jones, 912 A.2d 268, 293 (Pa. 2006) (“the findings of a post-conviction

court, which hears evidence and passes on the credibility of witnesses,

should be given great deference”);           Commonwealth v. White, 734 A.2d

374, 381 (Pa. 1999) (appellate court is bound by credibility determinations

of PCRA court where determinations are supported by record).

      Our standard of review for claims of ineffective assistance of counsel is

well settled.     Counsel is presumed to be effective, and the burden of

demonstrating ineffectiveness rests on the appellant.            Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). A petitioner must show (1)

that the underlying claim has merit; (2) counsel had no reasonable strategic

basis for his or her action or inaction; and (3) but for counsel's errors or

omissions, there is a reasonable probability that the outcome of the

proceedings would have been different. Id. The failure to prove any one of

the three prongs results in the failure of the petitioner's claim. Id.


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      Central to the PCRA court’s decision rejecting both issues was an

appropriate adherence to a standard of review prohibiting it from overriding

a credibility-based finding of fact made by the suppression court.          See

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011)

(acknowledging appellate court not at liberty to reject finding of fact based

on credibility determination).    At the hearing on Appellant’s motion to

suppress, suppression counsel conducted lengthy cross-examination laying

bare the inconsistencies between Agent Thompson’s written reports and his

testimony with respect to whether he obtained an admission to drug use,

urinalysis results, and his supervisor’s approval prior to searching Appellant’s

residence.    Moreover,    suppression   counsel   also   gained   the   Agent’s

agreement that Appellant’s four prior urinalysis test results between March

and June of 2010 were clean, the original impetus of the investigation was

an anonymous tip, there was no other official investigation into Appellant’s

conduct at the time, and the Agent believed Appellant’s traffic citations,

alone, gave him reasonable suspicion to search Appellant’s residence. N.T.

at 14-34.

      Nevertheless, such evidence was still reconcilable with the agents’

testimonies if the suppression court credited the agents’ explanations and

viewed Thompson’s written reports as simply containing a minimally

adequate account of events justifying the search, which is what the court

did. On direct appeal, this Court upheld the denial of Appellant’s motion to


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suppress on this basis, Smith, supra at 6.           In the present collateral

challenge to suppression counsel’s performance, the PCRA court reviewed

two additional reports in which Agent Thompson omitted reference to

Appellant’s admission of drug use and the administration of an instant

urinalysis, and it found such evidence to be cumulative to previously

admitted   evidence   on   the   limitations   and   inconsistencies   of   Agent

Thompson’s notes and reports.      This Court agrees with the PCRA court’s

assessment, and we note, additionally, that Appellant develops no argument

supported by authority compelling us to disturb the PCRA court’s rejection of

the claim underlying Appellant’s ineffective assistance of counsel challenge.

Accordingly, we discern no merit to the present appeal.

     Order is AFFIRMED.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/2016




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