J-S73042-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                    Appellee                :
                                            :
              v.                            :
                                            :
ERIC WRIGHT,                                :
                                            :
                    Appellant               :          No. 1067 MDA 2014

             Appeal from the PCRA Order entered on June 11, 2014
                in the Court of Common Pleas of Berks County,
                Criminal Division, No. CP-06-CR-0002925-2009

BEFORE: BOWES, WECHT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED DECEMBER 22, 2014

        Eric Wright (“Wright”), pro se, appeals the Order dismissing his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

        The PCRA court set forth the relevant procedural history in its Opinion,

which we also adopt for purposes of this appeal. See PCRA Court Opinion,

7/29/14, at 1-2.2

        On appeal, Wright raises the following issues for our review:

        1. Did the PCRA court abuse its discretion when it failed to
           reason that [Wright’s trial] counsel [Kevin Feeney, Esquire
           (“Attorney Feeney”),] erred when [he] did not seek

1
    See 42 Pa.C.S.A. §§ 9541-9546.

2
 Additionally, this Court set forth a more thorough discussion of the factual
and procedural history underlying this appeal in its Memorandum. See
Commonwealth v. Wright, 34 A.3d 239 (Pa. Super. 2011) (unpublished
memorandum at 2-9).
J-S73042-14


         suppression on the grounds that the law was improperly
         applied to the facts in this case, and that[,] more specifically,
         the correct application of the law would have rendered the
         entry into [Wright’s] home unlawful?

      2. Did the PCRA court abuse its discretion when it reasoned that
         [Wright’s] claim that the law was improperly applied to the
         facts (regarding the entry of the home) was previously
         litigated?

      3. Did the PCRA court abuse its discretion when it failed to
         reason that [Attorney Feeney] erred in failing to seek
         suppression on the grounds that entry into [Wright’s] home
         was a direct result of unlawful police conduct (an illegal arrest
         and seizure) and, therefore, unconstitutional?

Brief for Appellant at 4.

             We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      As Wright’s first two claims are related, we will address them together.

Wright contends that Pennsylvania courts have not addressed the role that

anonymous tips play in establishing “reasonable belief” regarding a fugitive’s

residence. Brief for Appellant at 9. Wright cites to federal case law on the

issue, and claims that under federal law, substantial evidence is needed to

establish “reasonable belief” regarding a fugitive’s residence.    Id. at 9-10.

Wright asserts that (1) the anonymous tipster was never identified; and (2)

there is no evidence that the task force made any effort to verify that the


                                  -2-
J-S73042-14


address given by the anonymous tipster was in any way connected with the

person named in the warrant, Jerral Spencer (“Spencer”). Id. at 10. Wright

asserts that a determination was made in his prior appeal that Attorney

Feeney was ineffective for failing to raise or preserve the issue of whether

the anonymous tip was corroborated when agents saw Spencer inside of

Wright’s home.3    Id.   Wright claims that, without a reasonable belief that

Spencer was a resident of Wright’s home, “the Court” should have applied

Steagald v. United States, 451 U.S. 204 (1981), rather than applying

Payton v. New York, 445 U.S. 573 (1980).               Brief for Appellant at 11.

Wright asserts that proper application of controlling case law would have

rendered the entry into his home unlawful, because it was without consent,

exigent circumstances or a search warrant.       Id.    Wright asserts that, had

Attorney Feeney raised the issue at the suppression hearing or properly

preserved it before during or after trial, all evidence recovered after the

unlawful entry would have been suppressed. Id.



3
  Wright misconstrues our holding in his direct appeal. We concluded then,
and again conclude herein, that despite Wright’s attempts to characterize his
claim as an improper application of the law, his claim is, in fact, that the trial
court made an improper factual determination that Agent Switek viewed
Spencer inside Wright’s apartment from a lawful vantage point.               See
Wright, 34 A.3d 239 (unpublished memorandum at 17) (applying Payton
based on the trial court’s factual determination). We noted in Wright’s direct
appeal that, because he had not challenged the trial court’s factual
determination, it was waived on appeal. See id. We further noted that,
even if this claim had been properly preserved, it lacked merit because the
trial court’s factual determination was supported by the record. See id. at
17-19.


                                   -3-
J-S73042-14


      Additionally, Wright contends that the PCRA court erred by concluding

that this issue was previously addressed by this Court in Wright’s direct

appeal.     Id.   Wright contends that his prior appeal raised the question of

whether Parole Agent Jan Switek (“Agent Switek”) had observed Spencer

from a lawful vantage point, and has nothing to do with his current claim of

ineffective assistance “based on counsel’s failure to attempt to compel the

Court to properly apply the holding in Steagald as the controlling case.” Id.

at 11-12.

      Although Wright does not indicate in his appellate brief which “court”

applied the wrong case law, our review of the record indicates that, when

the trial court denied Wright’s Omnibus Pretrial Motion, Amended Omnibus

Pretrial Motion and his Motion for Post-Trial Relief, it did not discuss or apply

either Payton or Steagald. However, in Wright’s direct appeal, a panel of

this Court thoroughly discussed the holdings in Steagald and Payton,

before concluding that Payton applied to the factual findings made by the

trial court. See Wright, 34 A.3d 239 (unpublished memorandum at 12-20).

      The PCRA is not a forum to raise claims that have already been fully

litigated. See 42 Pa.C.S.A. § 9544(a)(2). Insofar as Wright claims the trial

court erred in making its factual determination that Agent Switek observed

Spencer from a lawful vantage point, thereby necessitating the application of

Payton rather than Steagald, this Court, on direct appeal, thoroughly

addressed this claim and found it to be without merit. See Wright, 34 A.3d



                                    -4-
J-S73042-14


239 (unpublished memorandum at 12-20).          Because this claim has been

fully litigated, it is not cognizable under the PCRA.      See 42 Pa.C.S.A.

§ 9544(a)(2).

      Moreover, Attorney Feeney cannot be deemed to be ineffective.         To

succeed on an ineffectiveness claim, appellant must demonstrate by the

preponderance of the evidence that

      (1) [the] 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 proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

      Our review of the record indicates that Attorney Feeney raised this

issue before and after trial.   See Wright, 34 A.3d 239 (Pa. Super. 2011)

(unpublished memorandum at 7, 9). Thus, he cannot be deemed ineffective

for failing to do what the record reflects he, in fact, did.   Finally, even if

Attorney Feeney had not raised this issue before the trial court, he could not

be deemed ineffective for failing to raise an issue that this Court has already

concluded lacks merit. See Commonwealth v. Tilley, 595 A.2d 575, 587

(Pa. 1991) (stating that “counsel can never be found ineffective for having

elected not to raise a meritless claim.”).    Accordingly, we conclude that

Wright’s first two claims lack merit.



                                  -5-
J-S73042-14


      Wright’s third issue was not raised in his Concise Statement of Errors

Complained of on Appeal, or in his Amended Concise Statement of Errors

Complained of on Appeal. Therefore, he failed to preserve this issue for our

review.   See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)

(stating that if an appellant is directed to file a concise statement of matters

to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised

in that statement are waived).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2014




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:;1;
,"     COMMONWEALTH OF PENNSYLVANIA
                       PENNSYLV MIA                                 COl;RT OF COMMON PLEAS
                                                             IN THE COURT
                                                             OF BERKS COUNTY, PENNSYLVANIA
                                                             CRIMINAL DIVISION
                            v.
                                                             No. CP-06-CR-2925-2009
                                                                 CP-06-CR-292S-2009
(2     ERIC D. WRIGHT,                                       Superior Court No. 1067 MDA 2014
i,lj
"
 "
                             Appellant                       LUDGATE, SJ.S.J.
P"·
<t.i
::~
"

[.:~   Jason C. Glessner, Esquire, ADA
       Kevin Feeney, Esquire, Trial and Appellate counsel for Defendant
       Lara Glenn Hoffert, Esquire, PCRA counsel for Defendant
       Eric D. Wright, pro se

                  OPINION
       MEMORANDUM OPINIOl'I'                LUDGATE, S.J.                                      'f ,2014.
                                                                                       July ().1
                                                                                Dated: July,).

              Before the Court is the appeal of Eric D. Wright [Appellant], pro se, from our Order of

       June 11,2014,
            11, 2014, which denied his request for relief under the Post Conviction Relief Act (PCRA).

                          non·jury trial on September 24, 2010, Appellant was found guilty of
              Following a non-jury

       Possession with Intent to Deliver a Controlled Substance, 35 Pa.C.S.A. § 780-1l3(a)(30);
                                                                                780·113(a)(30);

       Possession of Drug Paraphernalia, 35 Pa.C.S.A. § 780·113(a)(32);
                                                        780-113(a)(32); Possession of a Firearm with

       Altered Manufacturer's Number, 18 Pa.C.S.A. § 6110.2(a); and Possession of Unlawful
                                                                                  Cnlawful Body

       Armor, 18 Pa.C.S.A. § 907(c). On September 29,2010,
                                                  29, 2010, Appellant was found guilty, following a

       non·jury trial before the undersigned, of the severed count of Persons Not to Possess Firearms,
       non-jury

        18 Pa.C.S.A. § 6105(a)(1).
                       6105(a)(I). On that same date, this Court sentenced Appellant to an aggregate

            of ten (10) years to twenty (20) years of incarceration plus a $ 15,000 fine.
       term often

               Subsequently, on October 6, 2010, Appellant, through his attorney, Kevin Feeney,

        Esquire, filed timely post-sentence
                              post·sentence motions, which we denied on October 7,2010.
                                                                                7, 2010. Trial counsel

        filed a timely Notice of Appeal to the Superior Court.         In a memorandum decision dated

                  27,?,:29,~
        September 22   201.1,1, .,the- ':$'upeJ~or Court affirmed the sentence in part and vacated in part,
                                (the' \\SUpeXlor

                                                   detennine if Appellant is able to pay the fine imposed.
        remanding the matter to the trial court to determine

        See Commonwealth v. Eric Wright, 1781 MDA 2010.                   Appellant filed a Petition for


                                                         1
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       Allowance of Appeal with the Supreme Court of Pennsylvania, which was denied on May 10,
,-
,,,.
',.'
                          5,2012,
       2012. On September 5, 2012, an Amended Sentence Order was entered by this Court lowering

                                            $ 100.00. Appellant's judgment of sentence became final
       Appellant's fine from $ 15,000.00 to S                                                 fmal
.",
.,.'
;";
 "
       on August 8, 2012.
:,.

                                                   fust pro se Petition for Post-Conviction Collateral
              On July 6, 2013, Appellant filed his first

       Relief pursuant to 42 Pa.C.S.A. § 9541 et. seq. On July 17,2013, Lara Glenn Hoffert, Esquire,

       was appointed by this Court as PCRA
                                      PCRA. counsel to represent Appellant in all proceedings

       regarding the disposition ofms
                                 of his PCRA
                                        PCRA. petition. Attorney Hoffert was granted thirty (30) days to

       file an amended petition under the Post-Conviction Collateral Relief Act or, in the alternative, to

       file a "No Merit" letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

       Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), detailing the reasons why this

       Court should allow counsel to withdraw. After being given extensions, on February 28, 2014,

       Attorney Hoffert filed a "No Merit" letter under Turner and Finley, supra, as well as a Petition

       for Leave to Withdraw as Counsel. She was permitted
                                                 pennined to withdraw on March 28,
                                                                               28,2014.
                                                                                   2014. After an

        independent review of the record, on April 14,2014, we gave Appellant Notice of our intent to

        dismiss his PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907(1).         On April 28,

        2014, Appellant filed a response to the )l"otice.
                                                Notice. Upon review of his response and the pertinent

        caselaw, on June 11, 2014, we dismissed his petition without a hearing. On June 23, 2014,

        Appellant filed a Notice of Appeal to the Superior Court.        On June 24, 2014, we ordered

                  to file a concise statement of the errors complained of on appeal, which he filed on
        Appellant to

        July 7,2014.
             7, 2014.
                                     .-- ~..,




                                         F;




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      In his concise statement, Appellant asserts:

           a. "The court abused it's [sic] discretion when it failed to reason that counsel erred
              when itit- did not seek suppression on the grounds that the law was improperly
              applied to the facts in this case. More specifically, the correct application of the
              law would have render [sic] the entry into the appellant's home unconstitutional
              because it was without a search warrant.
           b. The court abused it's [sic] discretion when it failed to reason that counsel erred in
              failing to seek suppression on the grounds that the entrance into the Defendant's
              (Appellant's) home was a direct result of unlawful police conduct and, therefore,
              unconstitutional. "
              unconstitutional."

      Appellant amended his concise statement on July 21, 2014 to include these issues:

           a. "PCRA court abused it's [sic] discretion when it failed to reason that petitioner's
              pcra counsel was ineffective for not raising the petitioner's claims about the trial
              counsels [sic] ineffectiveness as held in Martinez v. Ryan, 132 S.CT. 1309
              (2012).
           b. peRA
              PCRA court abused it's [sic] discretion when it reasoned that the Appellant's
              claim that the law was improperly applied to the facts (regarding the entrance of
              the home) was previously litigated."

                                                                      peRA petition is
  To begin, we note that the standard of review of an order denying a PCRA          1S


"whether the determination of the PCRA court is supported by the evidence of record and is free

of legal error. The PCRA court's findings will not be disturbed unless there is no support for the

findings   in
           m    the   certified   record."   Commonwealth       v.   Lambert,      57   A.3d     645,

    (Pa.Super.2012)~ The scope of review is limited to the findings of the PCRA
647 (Pa.Super.2012).                                                       peRA court and the

evidence of record, viewed in the light most favorable to the prevailing party at the peRA
                                                                                      PCRA court

level. Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa.2010).

   To be eligible for peRA
                      PCRA relief, Appellant had to prove, by a preponderance of the evidence,

that his conviction or sentence resulted from one or more of the enumerated circumstances found

at 42 Pa.C.S. § 9543(a)(2) (listing, inter alia, the ineffective assistance of counsel). Further,

                                                           peRA petition have not been
Appellant had to demonstrate that the issues raised in his PCRA



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     previously litigated or waived. § 9543(a)(3). An issue has been previously litigated if "the

     highest appellate court in which the petitioner could have had review as a matter of right has

     ruled on the merits of the issue." § 9544(a)(2). A PCRA claim is waived "if the petitioner could
'"
i~   have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a

     prior state post·conviction                9S44(b).
                 post-conviction proceeding." § 9544(b).

        In his appeal from the denial of PCRA relief, Appellant now raises four issues, challenging

     the effectiveness of trial counsel and PCRA counsel.        It is well-established
                                                                       well·established that counsel is

     presumed effective, and to rebut that presumption, the PCRA
                                                            PCM petitioner must demonstrate that

     counsel's performance was deficient and that such deficiency prejudiced him. Strickland v.

     Washington, 466 U.S. 668, 687-91, 104 S.C!.
                                           S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Supreme

     Court of Pennsylvania has characterized the Strickland standard as tripartite, by dividing the

     'performance element into distinct parts. Commonwealth v. Pierce, 515 Pa. 153,527
                                                                               153, 527 A.2d 973,

     975 (1987). Thus, to prove counsel ineffective, Appellant must demonstrate that: (1) the

     underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable

                    Appel1ant was prejudiced by counsel's act or omission. Id.
     basis; and (3) Appellant                                              Jd. at 975.

        Relating to the prejudice prong of the ineffectiveness test, the PCRA
                                                                         rCRA petitioner must

      demonstrate "that there is a reasonable probability that, but for counsel's error or omission, the

      result of the proceeding would have been different." Commonwealth v. Ly,
                                                                           Ly. 980 A.2d 61, 73

      (Pa.2009). Particularly relevant herein, it is well-settled that "a court is not required to analyze

      the elements of an ineffectiveness claim in any particular order of priority; instead, if a claim

      fails under any necessary element of the Strickland test, the court may proceed to that element

      first." Commonwealth v. Koehler,36 A.3d 121, 131 -132 (Pa.20l2).
                                                            (Pa.2012). (citing Commonwealth

         Lesko, 15 A.3d 345, 374 (Pa.20ll) (internal citations omitted).
      v. Lesko.                                                                    Additionally, counsel



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        obviously cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v.
r:.J
>,.,    Robinson, 82 A.3d 998, 1005 (Pa.2013)(citation omitted).
        Robinson.


 .
 .'"
           Appellant's initial claim failed because, first, it has been previously litigated and, thus, he is

::,'.   not eligible for relief. 42 Pa.C.S.A. §9543(a)(3). The PCRA provides that to be entitled to

        relief, a petitioner must establish, by a preponderance of the evidence, that his conviction or

        sentence resulted from one or more of the enumerated
        sentencc                                  cnumerated errors in Section 9543(a)(2), and his

        claims have not been previously litigated or waived. 42 Pa.C.S. §9543(a)(2).            An issue is

        previously litigated if "the highest appellate court in which [the appellanfl
                                                                           appellant] could have had review

        as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. §9S44(a)(2);
                                                                               §9544(a)(2); Wright,

                                                               81 A.3d 767, 782 (Pa.2013).
        supra, 1781 MDA 2010, at 10-21; Commonwealth v. Weiss, Sl               CPa.20B).

        The Superior Court addressed the issue of the anonymous tip and found that there was sufficient
                                                                                             sufficicnt

        evidence for the court to find that Supervisor Switek
                                                       S\vitek observed Mr. Spencer from a lawful

        vantage point. So, this issue was previously litigated and the
                                                                   thc Superior Court has ruled on the

               of the issue. Wright, supra, 1781 MDA 2010, at 10-21. :-Jeither
        merits orthe                                                 Neither trial counselor
                                                                                   counsel or PCRA

        counsel can be deemed ineffective for failure to raise a meritless claim.

            Further, Appellant cannot merely reframe a suppression issue to try to get around this hurdle,

                         attempting to
         which he is now attcmpting to do by reframing it from another angle and claiming ineffective

         assistance of counsel for not challenging the court's application of the law to the facts.

         Commonwealth v. Faulkner, 735 A.2d 67, 701 (Pa.1999);               Commonwealth v. Laird, 726

         A.2d 346, 359 (Pa.1999).                             trier of fact in this bench trial and, as noted
                                      The undersigned was the tricr

            the Superior Court, the law was properly applied to the facts as they were found by the court
         by thc

         because it found support
                          suppon in the rccord
                                        record that "Supervisor Switek observed Mr. Spencer from a

         lawful vantage
                vantage point." Wright,
                                W'right, supra, 1781 -:vIDA
                                                     MDA 2010, at 16. As the anonymous tip was



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      sufficiently corroborated, entry into the apartment was proper under the law. Commonwealth v.

      Jackson, 698 A.2d
                   A,2d 571, 575 (Pa. 1997) citing Commonwealth v. Hawkins, 692 A.2d 1068,

      1070-1071 (Pa. 1997).
'U'
"
         As for Appellant's other claims of ineffectiveness of trial and PCRA counsel, counsel cannot

      be held ineffective for failing to perform a futile act or raising a meritless claim.

      Commonwealth v. Tilley, 595 A.2d 575 (Pa.1991). Trial counsel did file an Omnibus PreTrial

      Motion for suppression. Once the court ruled on the motion, the suppression issue had been

      decided and it could not again be raised during the trial. Trial counsel also filed a Post Sentence

      Motion, preserving the suppression claim for the direct appeal.       The court's actions on the

      suppression issue were fully reviewed by the Superior Court on the merits and, thus, were

      already litigated. PCRA counsel cannot be held ineffective for informing the Court through a

      "No Merit" letter that this issue lacked merit, because it did not have merit. This fact was

      determined by the highest court in which Appellant sought review.

       . For the foregoing reasons, we respectfully request that the Superior Court affirm the Order of

      June 11,2014.
           11. 2014.


                                                                   By the Court,




                                                        6
