J-S51022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ALLEN KELLY

                            Appellant                 No. 871 MDA 2013


                  Appeal from the PCRA Order April 17, 2013
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0001708-2008


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                           FILED FEBRUARY 24, 2015

        Allen Kelly appeals from the order entered in the Court of Common

Pleas of York County, that denied, after a hearing, his first, timely request

for relief, filed pursuant to the Pennsylvania Post Conviction Relief Act

(PCRA), 42 Pa.C.S. § 9741 et seq. On December 11, 2008, Kelly pleaded

guilty to driving under the influence — highest rate of alcohol (third offense),

and the trial court sentenced him to a term of imprisonment of one to five

years.1 The charges arose after Kelly was stopped for a motor vehicle code

violation — making a right turn on a red light.2 The sole issue raised in this

appeal is Kelly’s claim that prior counsel were ineffective in failing to file a
____________________________________________


1
    See 75 Pa.C.S. § 3802(c).
2
    See 75 Pa.C.S. § 3112(a)(3)(i).
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suppression motion on his behalf “based upon the incorrect information

contained in the Criminal Complaint and Affidavit of Probable Cause and the

issues surrounding the Officer’s honesty and truthfulness[.]” Kelly’s Brief at

4. For the following reasons, we affirm.

       The history of this case is discussed in this Court’s opinion filed in

connection with Kelly’s direct appeal. Commonwealth v. Kelly, 5 A.3d 370

(Pa. Super. 2010), appeal denied, 32 A.3d 1276 (Pa. 2011).3

       The PCRA court explains the basis of the present appeal as follows:

       [Kelly] had difficulty with several Attorneys while pending trial.
       He elected to proceed pro se and entered a plea based on a
       plea agreement.

       At the recent PCRA hearing [Kelly] contend[ed] that his
       Attorney[s] should have filed a suppression motion and it was
       the Attorney[s’] failure to do so that cause[d] his
       disagreements with them.




____________________________________________


3
   Generally, a PCRA petition, including second and subsequent petitions,
must be filed within one year of the date the judgment of sentence becomes
final. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence becomes final “at
the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.”        42 Pa.C.S.  §
9545(b)(3).

      The Pennsylvania Supreme Court denied Kelly’s petition for allowance
of appeal on November 1, 2011. Thereafter, Kelly’s judgment became final
on January 30, 2012, at the end of the 90-day period for filing a petition for
writ of certiorari in the United States Supreme Court. As Kelly filed the
present PCRA petition on December 20, 2012, the petition is timely.



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     [Kelly] has filed a 1925(b) statement that the motion to
     suppress would have had merit, and that there was no
     legitimate trial strategy for not filing a suppression motion.

     Each of [Kelly’s] prior attorneys testified that they did not file a
     suppression motion because they deemed it to be without merit.

PCRA Opinion, 6/20/2013, at 1.

     At the outset, we state our standard of review:

         Our standard of review of a PCRA court’s denial of a
         petition for postconviction relief is well-settled: We must
         examine whether the record supports the PCRA court's
         determination,     and     whether     the   PCRA    court’s
         determination is free of legal error. The PCRA court's
         findings will not be disturbed unless there is no support
         for the findings in the certified record.

     Further, considering just the specific claim appellant has raised
     in this appeal, a PCRA petitioner will be granted relief only when
     he proves, by a preponderance of the evidence, that his
     conviction or sentence resulted from 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). As our supreme court has stated:

         It is well-established that counsel is presumed to have
         provided effective representation unless the PCRA
         petitioner pleads and proves all of the following: (1) the
         underlying legal claim is of arguable merit; (2) counsel’s
         action or inaction lacked any objectively reasonable basis
         designed to effectuate his client's interest; and (3)
         prejudice, to the effect that there was a reasonable
         probability of a different outcome if not for counsel's
         error.

     The PCRA court may deny an ineffectiveness claim if the
     petitioner’s evidence fails to meet a single one of these prongs.
     Moreover, a PCRA petitioner bears the burden of demonstrating
     counsel’s ineffectiveness.




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Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (case

citations omitted).

        The failure to file a suppression motion may be evidence of ineffective

assistance of counsel. Commonwealth v. Ransome, 402 A.2d 1379,

1381–1382      (Pa.   1979).   However,   if   the   grounds   underpinning   the

suppression motion or objection are without merit, counsel will not be

deemed to have been ineffective in failing to so move or object.          Id. at

1382.

        Here, Kelly maintains that “[t]here were numerous errors in the

Criminal Complaint and Affidavit of Probable Cause. Each one by themselves

may not be sufficient to file a motion. However, the totality warranted the

filing of a suppression motion.” Kelly’s Brief at 9 (“Summary of Argument”).

        Kelly’s prior counsel who represented him prior to the entry of his final

guilty plea testified at the PCRA hearing concerning their representation.

Anthony Tambourino, Esquire, who represented Kelly beginning in February

to March of 2008, testified that inaccuracies in the criminal complaint

regarding the race and ethnicity would have no impact for purposes of a

suppression motion.       Furthermore, Mr. Tambourino stated that although

Kelly believed the stop was pretextual, the stop was made for a motor

vehicle code violation.    Finally, Mr. Tambourino testified that he read the

statement in the criminal complaint that an alcoholic odor was coming from

the “passenger compartment” to mean inside of the car.            He stated that




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based upon the affidavit of probable cause and his discussions with Kelly,

Kelly had not provided any evidence that what the officer said was untrue.

        Ronald Jackson, Esquire, who represented Kelly from September,

2008, to November 2008, testified that he became involved as standby

counsel at the hearing on Kelly’s request to withdraw his guilty plea.

Jackson testified that Kelly filed a pro se motion to suppress because he

received an unsigned copy of the affidavit, and that this pro se motion was

denied by the trial judge.4 Mr. Jackson further testified that he was aware of

Kelly’s concerns but did not see any reason to file a suppression motion

where it was “strictly a credibility issue with the officer in regards to the stop

and being a motor vehicle violation, where the ethnicity issue was an issue

that would go to the officer’s recollection,” 5 and that he took the officer’s

statement     that    alcohol   was     detected   coming   from   the   “passenger

compartment” to mean the inside of the car. He reiterated that he did not

feel a suppression motion had any merit.


____________________________________________


4
  See Commonwealth v. Kelly, supra, 5 A.3d at 371 n.2 (“While Kelly
acknowledged he received the signed copy of the affidavit he also argued
the affidavit had been signed only ‘after the fact that [he] put a motion in.’
N.T., 9/22/08, at 4. Judge Blackwell, after hearing argument from both
counsel and Kelly, concluded the issue was frivolous. Id. at 3.”) & n.3
(noting Judge Blackwell denied Kelly’s pro se motion omnibus pretrial
motion).
5
    N.T., 4/17/2013, at 24–25.




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        Scott McCabe, Esquire, who was appointed to represent Kelly in

November of 2008, testified that there was no basis to file a suppression

motion since the officer had a reason to stop the car, “and that was the right

turn on red.”6      He testified “there were not errors that you would file a

pretrial motion for.”7 He stated: “What [Kelly] wanted is against what the

law says and I’m not in the practice of filing meritless, frivolous motions.”8

        At the PCRA hearing, Lori Yost, Esquire, who was appointed to assist

Kelly    in   post-sentence/appeal       proceedings   also   presented   testimony

concerning her representation to “complete the record with respect to what

… her involvement was in the case.”9 She testified she filed an appeal on

behalf of Kelly, and argued that his plea was involuntary because he was not

represented by counsel at that time. She stated that this Court affirmed the

decision of the trial court, and she then filed a petition for allowance of

appeal in the Supreme Court, which was denied. She further stated that she

did not file a petition for reconsideration, as she did not see a legitimate

basis for reconsideration. She added that Kelly did not request her to file a

petition for reconsideration.       Finally, she stated that she was aware that

____________________________________________


6
    N.T., 4/17/2013, at 44.
7
    Id. at 41.
8
    Id. at 43.
9
    See N.T., 4/17/2013, at 50–51.



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Kelly was unhappy with his prior counsel for not filing motions that he

wanted them to file on his behalf.

       Lastly, Kelly testified that he believed counsel was inappropriate

because “none of them wanted to do what I wanted to do as far as

suppressions or raising any issues or pretrial motions.” N.T., 4/17/2013, at

71–72. He acknowledged that prior to the entry of his guilty plea, the trial

judge advised him that he could go to trial, require the Commonwealth to

prove its case, and raise any technical issues.

       The PCRA court agreed with the conclusion of Kelly’s counsel that

there was no basis for filing a suppression motion, and denied the PCRA

petition.10 We conclude Kelly’s argument presents no reason to disturb the

PCRA court’s conclusion.

       A defendant “may make a motion to the court to suppress any

evidence alleged to have been obtained in violation of the defendant’s

rights.” Pa.R.Crim.P. 581. Here, the record makes clear that counsel were

aware of Kelly’s concerns, and correctly concluded that no basis existed for

the filing of a suppression motion.            Although Kelly believed the stop was

pretextual, “[a]n officer may conduct a lawful traffic stop if he or she

reasonably believes that a provision of the Motor Vehicle Code has been

violated.   Commonwealth v. Steinmetz, 656 A.2d 527, 528 (Pa. Super.

____________________________________________


10
   See N.T., 4/17/2013, at 106. The PCRA court reiterated its conclusion in
its Pa.R.A.P. 1925(a) opinion. See PCRA Court Opinion, 6/20/2013, at 2.



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1995).   See also Commonwealth v. Busser,           56 A.3d 419, 424 (Pa.

Super. 2012) (officer’s observations enabled him to articulate specific facts

that established an unequivocal motor vehicle code violation, and therefore

probable cause existed and stop was lawful), appeal denied, 74 A.3d 125

(Pa. 2013). Furthermore, the inaccuracies in the criminal complaint with

regard to the wrong checked boxes for race and ethnicity, and the

description of an alcoholic odor in the “passenger compartment” do not

demonstrate any “violation of the defendant’s rights” that would not provide

a basis for a suppression motion. Pa.R.Crim.P. 581. Therefore, counsel

cannot be held ineffective for failing to file a meritless motion.       See

Ransome, supra.

     Accordingly, we affirm.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015




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