J-S75028-16


                               2016 PA Super 311

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

ANDRE RAYMELLE WATLEY

                          Appellant                  No. 845 EDA 2016


               Appeal from the PCRA Order January 27, 2016
           In the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0001701-2009


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

OPINION BY MOULTON, J.:                         FILED DECEMBER 29, 2016

      Andre Raymelle Watley appeals from the January 27, 2016 order of

the Court of Common Pleas of Northampton County dismissing, in part, his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

      This Court previously summarized the factual background of this

matter as follows:

               State police effectuated a traffic stop of [Watley] and
         his passenger, Randy Hayward, after observing them
         traveling at ninety-five miles per hour in a forty-five mile
         per hour zone. The stop occurred at approximately 1:45
         a.m. on February 14, 2009, on State Route 22 in
         Northampton County, Pennsylvania. After pulling over the
         vehicle, Trooper Michael Acevedo and Trooper Lucas
         Lohrman approached. Trooper Lohrman walked to the
         passenger's side of the car while Trooper Acevedo went to
         the driver's side, where [Watley] was seated. When asked
         why he was traveling at such a high rate of speed [Watley]
         indicated that he was going to Easton Hospital. However,
J-S75028-16


       [Watley] had passed two exits leading to the hospital.
       [Watley] turned over to police a Pennsylvania identification
       card with the name “Chonce Acey.” Hayward informed
       police that he was Jermaine Jones, and his birth date was
       October 4, 1982, but he was unable to provide his social
       security number.

             The troopers ran the information and learned that
       Jermaine Jones was an alias for Hayward, who had an
       outstanding warrant for his arrest in New Jersey. Trooper
       Lohrman removed [Watley] from the car and took the keys
       to the vehicle before allowing [Watley] to re-enter it. The
       troopers also asked Hayward to exit the vehicle. When
       Hayward stepped from the vehicle, police noticed that the
       floor mat was raised into a high bump and an object
       appeared to be underneath it. While placing Hayward
       under arrest, Trooper Acevedo lifted the floor mat and
       discovered a loaded .22 caliber handgun. Trooper Acevedo
       promptly alerted his partner, drew his own weapon, and
       ordered [Watley] to step from the car and show his hands.
       Rather than comply, [Watley] who was on his cellular
       phone, fled the scene by running across the road and its
       median before crossing the opposing lanes of travel and
       into a wooded area. Trooper Acevedo gave chase for
       approximately fifteen minutes, but was unable to locate
       [Watley].

              Before police ordered the towing of the vehicle,
       Hayward requested a jacket that was in the backseat.
       Police searched the coat for weapons before turning it over
       to Hayward and discovered two receipts from Western
       Union containing [Watley’s] name. Police also obtained a
       search warrant for the car and discovered a .25 caliber
       pistol, a .25 caliber magazine, a box of .22–caliber
       ammunition, a container with a small amount of
       marijuana, and thirty-four Ecstasy pills. These items were
       located in the passenger side glove compartment.

             Hayward provided police with a written statement, as
       follows:

              On the date of February 13th I was picked up
              by “TEF” whose real name is Andre Watley
              around 6'o[']clock in the evening he was
              driving a [I]mpala (silver) which he told me


                                  -2-
J-S75028-16


              was rented for him by a female friend by the
              name of Erica[.] [W]e proceeded to drive thru
              Allentown while he made his drops and
              transactions[.] [A]round 10 or 11 I got
              dropped off at Philly's sport[s] bar on Hamilton
              for a few while he had to go get something. He
              picked me up around 11:30 or 12 and told me
              about a party going on in Easton at Larry
              Holmes Ringside Bar and Grille so we headed
              out that way about 1:15 or so before we made
              it to Ringside we were pulled over on 22 East.
              When the officers initially turned the lights
              over he stated let's keep going we can outrun
              them and I stated “no” because we were only
              speeding and that's when Andre Watley told
              me there's a slammer under the seat which
              means “gun” and I said so it's not min[e] and
              he said it isn't mine either by then the officers
              were at my window asked for License reg.
              insurance and ID[.] I didn't have mine and
              gave them my alias Jermaine Jones which
              came back as my real name Randy Hayward
              [.] I was then taken into custody and the gun
              was found under the seat and Andre took off
              running.

        Commonwealth's Exhibit 6, Hayward Statement.

              Prior to [Watley's] trial, Hayward also pled guilty to
        conspiracy related to the firearms possession and admitted
        that he was in a vehicle driven by [Watley] that contained
        two firearms and that he was not licensed to carry such
        weapons. This information was presented to the jury.
        When he testified at [Watley’s] trial, however, Hayward
        denied knowing [Watley] or having been with [Watley] on
        the morning of the stop. In addition, he denied any
        knowledge of Ecstasy being in the car or that police
        provided him with his Miranda rights, and he did not
        remember writing the drops and transactions statement.
        That statement, which was adopted by Hayward, was
        introduced as substantive evidence.

     Commonwealth v. Watley, 81 A.3d 108, 111–13 (Pa.Super. 2013)

(en banc) (footnote omitted).

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       Following a jury trial, Watley was convicted of two counts of firearms

not to be carried without a license, one count of possession with intent to

deliver (“PWID”) ecstasy, one count of criminal conspiracy to commit PWID,

one count of possession of ecstasy, one count of possession of a small

amount of marijuana, one count of false identification to law enforcement,1

and two summary offenses.            The court imposed consecutive sentences of

42-84 months on the firearms charges, 60-120 months on the PWID

charge,2 4-12 months on the false identification charge, and a consecutive

sentence of 15-30 days on the marijuana charge.

       Subsequently, as the trial court explained:

           [Watley] filed a direct appeal to the Superior Court on May
           27, 2011, following the reinstatement of his appellate
           rights nunc pro tunc. A panel of the Superior Court
           reversed [Watley’s] PWID and conspiracy convictions. The
           Commonwealth sought reargument, which was granted.
           Thereafter, [Watley’s] sentence was affirmed by the
           Superior Court. Commonwealth v. Watley, 81 A.3d 108
           (Pa. Super. 2013). He filed a petition for allowance of
           appeal to the Supreme Court, which was denied on July 8,
           2014. On June 2, 2015, [Watley] filed a timely petition
           pursuant to the Post-Conviction Relief Act (PCRA), 42
           Pa.C.S, § 9541 et seq., which was assigned to the
           Honorable Paula A. Roscioli as a result of Judge Smith’s
           appointment to the Federal bench in 2014. A hearing on
           the matter was held on October 9, 2015, and the record
____________________________________________


       1
        18 Pa.C.S. § 6106(a)(1); 35 P.S. § 780-113(a)(30); 18 Pa.C.S. §
903(a)(1); 35 P.S. § 780-113(a)(16); 35 P.S. § 780-113(a)(31); and 18
Pa.C.S. § 4914(a), respectively.
       2
        The court imposed a mandatory minimum sentence of five years’
incarceration on the PWID charge pursuant to 42 Pa.C.S. § 9712.1.



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           left open for additional testimony.   The parties then
           reconvened on October 30, 2015, at which time counsel
           for [Watley] made an oral discovery motion. That motion
           was denied in a written opinion by the undersigned on
           November 12, 2015.

Opinion, 1/27/16, at 1-2 (“PCRA Op.”).

       On January 27, 2016, the PCRA court vacated Watley’s sentence and

ordered re-sentencing to be held on March 11, 2016.3          The PCRA court

explained that, pursuant to Alleyne v. United States, 133 S.Ct. 2151

(2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014),

Watley’s mandatory minimum sentence was unconstitutional. PCRA Op. at

7.    The PCRA court further explained that Watley’s sentence had to be

vacated in its entirety because the entire sentencing scheme was impacted.

Id.   The PCRA court denied Watley’s petition in all other aspects. Watley

filed a timely notice of appeal on February 19, 2016.4

       Watley raises the following issues on appeal:


____________________________________________


       3
        The court’s order stated that re-sentencing was contingent upon lack
of a timely appeal in this matter. Order of Court, 1/27/16. We find that this
appeal is now properly before us. See Commonwealth v. Gaines, 127
A.3d 15, 17-18 (Pa.Super. 2015) (finding that an order granting in part and
denying in part all issues raised in Appellant’s PCRA petition was a final order
for purposes of appeal).
       4
        Watley originally filed a pro se notice of appeal on February 16,
2016. He then filed a counseled notice of appeal on February 19, 2016.
Watley’s pro se appeal, docketed with this Court at No. 835 EDA 2015, was
discontinued, and this Court sent notice of the discontinuance on April 5,
2016.



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         A. Attorney Sletvold was ineffective for failing to object (or
            failing to appeal, if the trial record is construed as the
            Trial Court ruling that such statements were admissible)
            to the admission of the prior statement and prior guilty
            plea colloquy of Randy Hayward, given that such prior
            statements were not inconsistent with Haywards trial
            testimony.

         B. Attorney Sletvold was ineffective for failing to file a
            motion to suppress evidence found during an
            unconstitutional search and seizure of the vehicle
            stopped by the state police.

         C. Attorney Sletvold was ineffective for failing to consult
            with [Watley] prior to trial, failing to call alibi witnesses,
            and failing to advise [Watley] that it was in his interest
            to testify at trial.

         D. The PCRA Court erred in failing to grant [Watley]'s
            request that the identification card of Chonce Acey be
            sent to the Pennsylvania State Police for fingerprint
            analysis.

Watley’s Br. at 4-5 (suggested answers omitted).

      Our standard of review from the 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. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).                     This

Court “will not disturb findings that are supported by the record.” Id.

      I. INEFFECTIVE ASSISTANCE OF COUNSEL

      We first address Watley’s claims for ineffective assistance of counsel.

When analyzing ineffectiveness claims, we begin with the presumption that

counsel was effective. Commonwealth v. Spotz, 18 A.3d 244, 259-60 (Pa.

2011).   “[T]he defendant bears the burden of proving ineffectiveness.”



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Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009). To overcome

the presumption of effectiveness, a PCRA petitioner must demonstrate that:

“(1) the underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel’s deficient performance.” Id. “A claim of ineffectiveness

will be denied if the petitioner’s evidence fails to meet any of these prongs.”

Id. To establish the second ineffectiveness prong, the petitioner must prove

that “an alternative not chosen offered a potential for success substantially

greater than the course actually pursued.” Spotz, 18 A.3d at 260 (quoting

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

establish the third prong, the petitioner “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.” Id.

      A. Prior Inconsistent Statements

      First, Watley claims that his trial counsel was ineffective for failing to

object to (or failing to appeal) the admission of Randy Hayward’s prior

statement to the police and prior guilty plea colloquy.       The prosecution

called Hayward as a witness at trial. When Hayward testified that he did not

know Watley, the prosecutor first used both Hayward’s earlier, signed

statement to the police and his sworn guilty plea colloquy in an effort to

refresh Hayward’s recollection. See N.T., 7/13/10, at 126-41. When that



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effort proved largely unsuccessful, the prosecutor then used the statements

both to impeach Hayward and as substantive evidence of Watley’s guilt.

See id. at 183.5 Watley argues that his trial counsel should have objected

to the admission of those prior statements on the ground that they were not

inconsistent with his trial testimony and therefore inadmissible hearsay.

Watley’s Br. at 25.

       “Hearsay is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Commonwealth v. McCrae, 832 A.2d 1026, 1034 (Pa.

2003); see Pa.R.E. 801(c). Hearsay is not admissible “except as provided

by the Pennsylvania Rules of Evidence, [by other rules prescribed by the

Supreme Court of Pennsylvania], or by statute.”          McCrae, 832 A.2d at

1034; see Pa.R.E. 802.            “It is long settled that a prior inconsistent

statement may be used to impeach a witness.” Commonwealth v. Brown,

448 A.2d 1097, 1102 (Pa.Super. 1982) (quoting Commonwealth v.

Hensley, 441 A.2d 431, 435 (Pa.Super. 1982)).                “Further, a prior

inconsistent statement may be offered not only to impeach a witness, but

also as substantive evidence if it meets additional requirements of

reliability.”   Commonwealth v. Carmody, 799 A.2d 143, 148 (Pa.Super.

2002). “The test is a two-part inquiry: 1) whether the statement is given
____________________________________________


       5
       The transcript of Hayward’s guilty plea hearing was admitted into
evidence without objection on the second day of trial. N.T., 7/14/10, at 125.



                                           -8-
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under reliable circumstances; and 2) whether the declarant is available for

cross-examination.”        Id.     “With respect to the second prong, cross-

examination, the inconsistent statement itself must be the subject of the

cross-examination in order to satisfy the test.” Id. at 148. At the time of

Watley’s trial, Pennsylvania Rule of Evidence 803.1 read as follows:

           The following statements, as hereinafter defined, are not
           excluded by the hearsay rule if the declarant testifies at
           the trial or hearing and is subject to cross-examination
           concerning the statement:

                 (1) Inconsistent Statement of Witness.         A
                 statement by declarant that is inconsistent
                 with the declarant’s testimony and (a) was
                 given under oath subject to the penalty of
                 perjury at a trial, hearing, or other proceeding,
                 or in a deposition, or (b) is a writing signed
                 and adopted by the declarant, or (c) is a
                 verbatim contemporaneous recording of an
                 oral statement.6

       In his brief, Watley contends:

           As a matter of law, Hayward’s trial testimony, consisting of
           “I don’t know” and “I don’t recall” in response to the
           Commonwealth’s questions, was not inconsistent with his
           February 20, 2009 statement to the police. As such,
           neither the statement to the police nor his guilty plea
           colloquy were admissible as substantive evidence.




____________________________________________


       6
       The text of Pa.R.E. 803.1 was amended in 2013, after Watley’s trial.
The amendment did not change the rule substantively. See Pa.R.E.
Explanatory Comments (noting that 2013 amendments to Pennsylvania
Rules of Evidence left substantive content unchanged).




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Watley’s Br. at 25 (emphasis in original).        In support of this argument,

Watley relies chiefly on the following statement in Commonwealth v.

Knudsen, 278 A.2d 881, 883 (Pa. 1971):

            [O]ur courts have been loathe to allow cross-examination
            for purposes of impeachment by use of prior statements
            when a witness states that he does not know or that he
            cannot remember. This is so for the reason that such an
            in-court declaration does not harm the calling party nor aid
            the opposing party.

      We disagree with Watley’s contention that Hayward’s trial testimony

was not inconsistent with his prior written statement and guilty plea

colloquy.     There is an important distinction between a mere failure of

recollection, which might not be inconsistent with an earlier statement, see

Commonwealth v. Moore, 340 A.2d 447, 449 (Pa. 1975) (“[W]here the

witness has made no assertions which stand in contradiction to statements

the witness has made earlier, but merely claims he or she does not know or

cannot remember, the prior statements should not be introduced.”), and a

claimed failure      of recollection accompanied by affirmative       assertions

inconsistent with the earlier statement.        While at times during his trial

testimony, Hayward professed a failure of recollection, see, e.g., N.T.,

7/13/10, at 126, 134, at other times his recollection was quite strong. Most

significantly, he repeatedly asserted both that he did not know Watley and

that Watley was not in the car with him at the time of the stop.            The

following passages from Hayward’s trial testimony are illustrative:




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        Q. Exactly. He picked you up again around 11:30 or 12
        and told you about a party going on in Easton at the Larry
        Holmes Ringside.

           So you headed that way about 1:15 or so. You’re
        leaving Allentown about 1:15 with Watley in the car, with
        Watley driving; right? Right? Yes? Correct?

        A. I don’t know who Watley is.

        Q. You don’t know who he is?

        A. No.

        Q. You’re writing all about him in the statement, but you’re
        telling these people you don’t know who he is?

        A. No, I don’t.

        Q. You made it to the Ringside. You were headed to the
        Ringside; right? Right? Because he told you about the
        party’s there; is that right? Is that a yes?

        A. You keep saying he told me about the party, but I’m
        telling you I don’t know who he is.

        Q. Notwithstanding the fact that your entire statement
        referring to Andre Watley, Andre Watley, Andre Watley,
        now you don’t know?

        A. No, sir. I don’t know who he is.

N.T., 7/13/10, at 132-33.

        Q. And with the State Police standing at your window, you
        knew you got guns in the car?

        A. Yes.

        Q. And you knew you got Watley sitting next to you or had
        he run yet?

        A. I don’t know who Watley is.

        Q. Well, let me help you. Look over there.

        A. I never seen him before in my life.

        Q. Never saw him before in your whole life?


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        A. No, sir.

        Q. Andre Watley, all the way through the statement; right?

        A. Yes.

        Q. Now you’re telling me you never seen him before?

        A. No, sir.

Id. at 136.

        Q. Now, I said so it’s not mine. I went through that
           already. But now you’re telling us you did know it was
           there. Officers at your window asking for a license, you
           didn’t have your license, so you gave them an alias.
           You gave them a fake name; right?

        A. Yes.

        Q. And came back as your real name Randy Hayward. You
           were taken into custody and then Watley ran; right?

        A. I don’t know who ran.

        Q. Somebody ran.

        A. Somebody ran.

        Q. The person that throughout your interview with police
           you called Andre Watley; right?

        A. No, sir.

        Q. No, sir?

        A. I said, No, sir. It wasn’t Andre Watley. I’m watching
           him right now. It wasn’t him.

Id. at 136-37.

        Q. You told the state police, yeah, that’s the guy who was
           driving the car. I’m wearing his coat. Remember that?

        A. No. I don’t remember that, sir.

        Q. You don’t remember that?

        A. No.



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           Q. But there’s no question Commonwealth’s Exhibit 6 is
              your statement in your hand, signed by you; correct?

           A. Yes.

           Q. But somehow your testimony today is that it was not
              Andre Watley with you; is that correct?

           A. Yes, sir.

           Q. With your written statement and your interview with the
              police being in exact contradiction; right?

           A. Yes.

Id. at 138-39.

      Similarly, Hayward affirmatively denied at trial knowing

several important facts, such as the meaning of the term

“slammer,” despite having told the police in his written statement

that Watley had used the term to refer to a gun under the seat of

the car.

           Q. Right here, That’s when Andre Watley. You see where
           you wrote that.

           A. Yes.

           Q. February 20, 2009?

           A. Yes.

           Q. That’s when Andre Watley told me there’s a slammer
           under the seat. Tell them what a slammer is. Tell the
           ladies and gentlemen of the jury what a slammer is.

           A. I don’t know what it is.

           Q. You don’t know what that is either?

           A. No, sir.

           Q. So when Watley told you there was a slammer under
           the seat, you’re telling us you didn’t know what that
           meant?

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        A. No, sir.

        Q. But in the very next line, the very next set of words,
        you tell us what a slammer is, because you know what a
        slammer is. You know, you’re with Watley. Let’s read on.

            I stated no because we are only speeding. And that’s
        when Andre Watley told me there’s a slammer under the
        seat, which means -- right in the statement -- you see
        that? Which means gun. That’s your statement; right,
        sir?

        A. Yes. I’m reading it.

        Q. Okay. That’s what it says; right?

        A. Yes. That’s what it says.

        Q. That’s your statement. I said no. Excuse me. I said so
        -- this is you speaking -- I said, So it’s not mine. And then
        he, Watley, said, It isn’t mine either; right? That’s what
        you wrote?

        A. Yes. That’s what I wrote.

Id. at 134-36.

     We agree with the PCRA court that Hayward’s trial testimony “was

plainly inconsistent with his prior sworn testimony on multiple occasions.”

PCRA Op. at 12. Hayward acknowledged that he wrote and signed a

statement to the police on February 20, 2009.     N.T., 7/13/10, at 124-25.

Hayward also acknowledged his previous guilty plea colloquy.      Id. at 139.

However, contrary to both his signed written statement and his plea

colloquy, in his trial testimony Hayward expressly denied that Watley was in

the car with him on the day in question, that Watley had told him about the

gun under the seat of the car, and that Watley was the person who had run

from the car to elude the police. Indeed, Hayward himself, in response to a


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question from the prosecutor, conceded that his trial testimony was in “exact

contradiction” to his statement to the police.     Id. at 138-39.   In short,

contrary to Watley’s claim on appeal, Hayward’s trial testimony was plainly

and materially inconsistent with both his signed prior statement to the police

and his sworn plea colloquy.

      Watley’s reliance on our Supreme Court’s 1971 decision in Knudsen is

misplaced. In Knudsen, a witness testified on direct examination that he

did not know whether the defendant had cocked his gun before heading in

the direction of his victim. 278 A.2d at 882. Conversely, the witness had

earlier told the police that the defendant had cocked the gun.      Id.   Our

Supreme Court held that “when a witness claims he does not know or cannot

remember, the prior statements should not be introduced because of the

danger that the prior statements will be considered as substantive evidence

by the jury.” Id. at 883. While Knudsen was decided before Pennsylvania

adopted the Rules of Evidence in 1998, its central premise remains good law

– in some circumstances a mere failure of recollection at trial should not be

understood as sufficiently inconsistent with an earlier statement to warrant

the admission of the earlier statement.      Nevertheless, Knudsen is readily

distinguishable. As discussed above, Hayward’s trial testimony, far from a

simple failure of recollection, directly contradicted his earlier statements.

That Hayward also responded “I don’t recall” and “I don’t remember,” see,

e.g., N.T., 7/13/10, at 125, 128, 131, hardly brings this case within


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Knudsen’s ambit. In sum, Hayward’s statement to the police and his guilty

plea colloquy were both inconsistent with his trial testimony.          Because

Hayward signed and adopted the prior statement, and the guilty plea

colloquy was administered under oath at a formal legal proceeding, both

were properly admitted as substantive evidence at trial. See Lively, 610

A.2d at 11. Because Watley’s underlying substantive claim lacks merit, he

cannot satisfy the first prong of the ineffectiveness test.    Accordingly, we

need not reach the second and third prongs of the test.

         B. Search of Vehicle

     Next, Watley claims that trial counsel was ineffective for failing to file a

motion to suppress evidence found during an unconstitutional search and

seizure of the vehicle. We disagree.

     This Court has previously found that “[t]he failure to file a suppression

motion under some circumstances may be evidence of ineffective assistance

of counsel.” Commonwealth v. Metzger, 441 A.2d 1225, 1228 (Pa.Super.

1981); see also Commonwealth v. Ransome, 402 A.2d 1379, 1381 (Pa.

1979).   “However, if the grounds underpinning that motion are without

merit, counsel will not be deemed ineffective for failing to so move.”

Metzger, 441 A.2d at 1228.       “[T]he defendant must establish that there

was no reasonable basis for not pursuing the suppression claim and that if

the evidence had been suppressed, there is a reasonable probability the




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verdict would have been more favorable.” Commonwealth v. Melson, 556

A.2d 836, 839 (Pa.Super. 1989).

      Watley contends that his trial counsel should have filed a pretrial

motion seeking suppression of all evidence – including firearms, drugs, and

receipts – recovered from the vehicle stopped by police on February 14,

2009. Watley’s Br. at 32. In particular, he argues that the officers’ search

of the vehicle, resulting in discovery of a gun under the passenger floor mat,

was unconstitutional.   Id. at 36.   After the vehicle was impounded, police

conducted a second search pursuant to a warrant. PCRA Op. at 14. Watley

argues that the evidence recovered from this search should have been

suppressed as fruit of the poisonous tree. Watley’s Br. at 37.

      We find that Watley’s trial counsel was not ineffective because a

motion to suppress the evidence would have been without merit. Watley’s

claim turns on whether it was constitutionally proper for Trooper Acevedo to

have lifted the floor mat on the passenger’s side of the car. We agree with

the PCRA court that “[Trooper] Acevedo’s action in lifting the floor mat” was

a constitutionally permissible protective search for weapons.    PCRA Op. at

14.   The United States Supreme Court, in addressing when a police officer

may conduct a protective weapons search of the interior compartment of a

car, has held that:


         [T]he search of the passenger compartment of an
         automobile, limited to those areas in which a weapon may
         be placed or hidden, is permissible if the police officer


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           possesses a reasonable belief based on “specific and
           articulable facts which, taken together with the rational
           inferences from those facts, reasonably warrant the
           officers believing that the suspect is dangerous and the
           suspect may gain immediate control of weapons.”

Michigan v. Long, 463 U.S. 1032, 1049 (1983) (quoting Terry v. Ohio,

392 U.S. 1, 21 (1968)).7 Our Supreme Court has stated that a police officer

may conduct a protective weapons sweep of a vehicle where the officer has

sufficient facts at his disposal such that a “reasonably prudent man would

have believed his safety was compromised.”         Commonwealth v. Morris,

644 A.2d 721, 723 (Pa. 1994). Accordingly, “[w]e look at the totality of the

circumstances facing an officer when we examine whether that officer came

to a reasonable suspicion to search for a weapon.”       Commonwealth v.

Tuggles, 58 A.3d 840, 843 (Pa.Super. 2012).

       The totality of the circumstances in this case gave the officers

reasonable suspicion to support a protective search of the car for weapons.

As Trooper Acevedo testified, upon first approaching the car and looking

inside, he observed that Hayward, who was sitting in the passenger seat,

had his knees together and was suspiciously covering up the area

underneath his knees. N.T., 7/13/10, at 37, 103-04. After running the

information Hayward provided through the computer, the officers discovered
____________________________________________


       7
        In Commonwealth v. Morris, 644 A.2d 721 (Pa. 1994), “our
Supreme Court concluded that the Long standard comported with the
Pennsylvania Constitution.” Commonwealth v. Tuggles, 58 A.3d 840, 843
(Pa.Super. 2012).



                                          - 18 -
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that there was an outstanding warrant for Hayward’s arrest and decided to

take him into custody. Id. at 206. First, the officers told Watley to exit the

car, took the keys out of the ignition, and permitted Watley to re-enter the

car. Id. at 37, 207. They then removed Hayward from the car to take him

into custody.     Id.   At this time, Trooper Acevedo “observed that the floor

mat was bunched up really high and that something was there. . . .

[u]nderneath the floor mat.” Id. at 38.

       Trooper Acevedo had reasonable suspicion to believe a firearm was

under the floor mat in an area that Hayward, who had an outstanding arrest

warrant, had earlier appeared to be covering up. Further, he had reasonable

suspicion to fear for his safety, as Watley was still in the vehicle where he

could easily access the object underneath the passenger’s side floor mat. 8

See Tuggles, 58 A.3d at 844 (finding that police were permitted to ensure

that suspect would not be able to gain access to a weapon in his vehicle

upon return to his car after the close of investigative detention).

       Watley observes that neither of the troopers testified that they feared

for their safety before looking under the floor mat, and that the officers did

not search Watley prior to letting him back into the car. Watley’s Br. at 36.

The relevant inquiry, however, is not the officers’ subjective beliefs at any

____________________________________________


       8
        Trooper Acevedo testified that when he discovered the gun under the
floor mat, “[t]he gun was within arm’s reach of the driver at that point.”
N.T., 7/13/10, at 109.



                                          - 19 -
J-S75028-16


given time but the objective reasonableness of the search under the totality

of the circumstances. Tuggles, 58 A.3d at 843. The officers’ discovery of

the bulge in the floor mat while Watley was in the car fundamentally

changed the totality of the circumstances.9        As stated above, Trooper

Acevedo had yet to observe the floor mat when Watley was allowed re-enter

the car.      Furthermore, although Trooper Acevedo had seen Hayward

covering up an area of the car, he had no further reason to believe that

Hayward might have been actively concealing a weapon, until he saw the

bulge.10

       Here, the officers acted on a reasonably prudent belief that their safety

was compromised once they saw the bulge in the floor mat in an area that

an unsecured person in the car could readily access. Accordingly, because

the claim that the evidence should have been suppressed lacks merit, we

need not reach the second and third prongs of the ineffectiveness test.

____________________________________________


       9
        Although the occupants of the car complied the officers’ instructions,
at least up to the time Watley fled, “cooperation with police does not erase
an otherwise valid belief that a defendant may have access to a gun.”
Tuggles, 58 A.3d at 845.
       10
          This Court has previously held that “[w]here a person performs an
activity that is indicative of an attempt to secrete a weapon, that movement,
regardless of whether it is singular, or multiple, can support a belief that the
person has a gun.” Tuggles, 58 A.3d at 844. Although the record does not
suggest that the troopers immediately feared for their safety when Trooper
Acevedo first observed Hayward concealing an area of the car, this act of
concealment coupled with the actual discovery of the bulge in the floor mat
supported the officers’ subsequent belief that there was a gun.



                                          - 20 -
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         C. Investigation and Trial Preparation

      Watley also claims that trial counsel was ineffective for failing to

conduct a proper investigation of the case, including failing to spend

sufficient time consulting with Watley prior to trial, resulting in a failure to

advise Watley to testify and a failure to call critical alibi witnesses on

Watley’s behalf. Watley’s Br. at 41. This claim lacks merit.

      “[C]ounsel is not deemed ineffective per se merely because of the

short amount of time he has met with his client.”          Commonwealth v.

Porter, 728 A.2d 890, 896 (Pa. 1999).           “[T]he time actually spent by

counsel with the accused discussing his case is not necessarily related to,

and affords no basis for inferring, the extent of total trial preparation.”

Commonwealth v. Owens, 312 A.2d 378, 381 (Pa. 1973). Rather, “to

establish [ineffectiveness of counsel] Appellant must establish that counsel

inexcusably failed to raise issues which, had they been raised, would have

afforded Appellant relief.” Porter, 728 A.2d at 896.

      Watley alleges that he interacted with counsel only once before trial,

“during which Attorney Sletvold simply presented him with a Rule 600

waiver form and asked him to sign it.”        Watley’s Br. at 14.   According to

Watley, “[a]t that time, Attorney Sletvold did not engage in any detailed

discussion of the case with [him].”      Id.     In contrast, Attorney Sletvold

testified at the PCRA hearing that he met with Watley on a number of

occasions prior to trial:


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         Q: In your file in this case, would it be your typical practice
         to mark down when you meet with a client to discuss his
         case?

         A: Sometimes it is. Not usually, because with Court-
         appointed cases, I’m not paid or I don’t bill for my time, so
         I try to meet with clients when I’m able to. And certainly
         for a serious case like this, I tried to meet with him as
         much as I thought was necessary to be prepared for the
         trial.

                                       ...

         Q: And I’m sorry to keep badgering you about this, but
         beyond testifying that you met with him more than once,
         can you narrow it down to any extent?

         A. I would have met with him to discuss what he wanted to
         do with the case. I would have met with him to discuss
         the allegations in discovering the case and I would have
         met with him prior to trial, certainly when it got much
         closer to trial more frequently, just to make sure that he
         understood what was going on, what the procedure was
         and what evidence we would be either presenting or
         fighting as the case proceeded.

N.T., 10/9/15, at 6-8. The PCRA court found Watley’s testimony not credible

and Attorney Sletvold’s testimony credible.       We are bound by the PCRA

court’s credibility determinations.    Commonwealth v. Abu Jamal, 720

A.2d 79, 93 (Pa. 1998). Therefore, we find the PCRA court did not err in

concluding that Attorney Sletvold did not fail to consult with Watley.

      Further, the PCRA court did not err in concluding that counsel was not

ineffective for failing to call alibi witnesses. The PCRA court found Watley’s

aunt, Karen Burton, not credible when testifying that she had communicated

Watley’s alibi to Attorney Sletvold. PCRA Op. at 18. While Burton testified

that she spoke to Attorney Sletvold over the phone on two occasions before


                                      - 22 -
J-S75028-16


trial, she could not state when these conversations occurred.11 She further

testified that, “despite believing that she had an alibi for [Watley], she did

not contact the authorities with this information.” Id. The PCRA court found

Attorney Sletvold credible when he testified that just before trial, he was

approached by females whose identities he could not recall, and was

uncomfortable during his conversations with them, because it appeared the

women intended to perjure themselves.              Id. at 19-20. Further, the PCRA

court found that Attorney Sletvold credibly testified that Watley’s aunt and

uncle did not contact him prior to trial concerning an alibi, and that Watley

never told Attorney Sletvold that he was at his aunt and uncle’s house

during the time period in question. Id. at 20. Accordingly, given the PCRA

court’s fully supported conclusion that counsel had not been made aware of

any truthful alibi witnesses prior to trial, he cannot be found ineffective. Id.

       We also conclude the PCRA court did not err in finding that Attorney

Sletvold was not ineffective for failing to advise Watley to testify. 12      The

PCRA court found that Watley’s testimony – that Attorney Sletvold did not

____________________________________________


       11
       Burton testified that she spoke to Attorney Sletvold “way prior to a
week before the trial” but was unable to provide any more specific estimate
when asked. N.T., 10/8/15, at 82.
       12
          Watley asserts that he would have testified as to how Chonce Acey
came into possession of the Western Union receipts bearing Watley’s name,
as well as Watley’s whereabouts at the time of the arrest, and that Attorney
Sletvold would have learned this information had he consulted with Watley
prior to trial. Watley’s Br. 41-43.



                                          - 23 -
J-S75028-16


speak to him about the decision to testify prior to trial – was not credible.

PCRA Op. at 21.      Rather, the PCRA court found that Attorney Sletvold

credibly testified that, while he could not recall a specific conservation with

Watley, he would have discussed the decision to testify with Watley prior to

trial, and would not have presented him with this choice at the last minute.

Id.   Moreover, Attorney Sletvold’s testimony is supported by Watley’s

colloquy at trial, wherein Watley stated that it was his decision not to

testify, and that Attorney Sletvold told him that “It’s ultimately my decision

of taking the stand or not.” Id.; N.T., 7/14/10, at 95. Finally, Watley also

testified at the PCRA hearing that it was his choice not to testify at trial.

N.T., 10/9/15, at 108.

      II. REQUEST FOR FINGERPRINT ANALYSIS

      Finally, Watley seeks reversal of the PCRA court’s November 12, 2015

order denying his motion for fingerprint analysis of an identification (“ID”)

card bearing the name “Chonce Acey,” given to the police by the driver of

the car and admitted by the Commonwealth as evidence at trial.        As both

parties acknowledge, “no discovery shall be permitted at any stage of

[PCRA] proceedings, except upon leave of court after a showing of

exceptional circumstances.” Pa.R.Crim.P. 902(E)(1). Neither the PCRA nor

the Pennsylvania Rules of Criminal Procedure define the term “exceptional

circumstances.”   Commonwealth v. Frey, 41 A.3d 605, 611 (Pa.Super.

2012). This Court, however, has held that “the trial court, in its discretion”


                                    - 24 -
J-S75028-16


determines whether a case is exceptional and warrants discovery.              Id.

Thus, “[w]e will not disturb a court’s determination regarding the existence

of exceptional circumstances unless the court abused its discretion.” Id.

      Watley argues that fingerprint testing is appropriate for a number of

reasons. In part, Watley claims that “the presence of his fingerprints on the

card would be highly incriminating,” while the absence of his fingerprints

“would be highly exculpatory, given that, if Watley were the driver of the

vehicle, then his fingerprints would be on the ID card.” Watley’s Br. at 49

(emphasis and footnote omitted).

      We find that the PCRA court did not abuse its discretion in denying

Watley’s motion. There is nothing in the record to suggest that the PCRA

court’s decision was the result of bias, ill will, partiality, prejudice, manifest

unreasonableness, or misapplication of law. Rather, the PCRA court found

that exceptional circumstances warranting discovery did not exist. The PCRA

court reasoned:

                First, we cannot conclude that the evidence alleged
         to exist would be exculpatory. Exculpatory evidence is that
         which tends to establish a criminal defendant's innocence.
         The fingerprint evidence that Defendant contends would be
         found upon testing of the ID is not of such character, and
         his contention that “if [he] were the driver of the vehicle,
         then his fingerprints would be on the ID card” is logically
         false. The alleged absence of Defendant’s fingerprints on
         the ID card in this case could be as a result of any number
         of circumstances, including those consistent with his guilt
         in this case, e.g. the ID was wiped by Defendant, the ID
         was held by other persons in such a manner as to obscure
         Defendant's prints, the ID was held by the Defendant only
         along the edges, or degradation of the prints over time.

                                      - 25 -
J-S75028-16


         See, e.g. Commonwealth v. Wright, 388 A.2d 1084
         (Pa.Super. 1978).

                Furthermore, we cannot conclude that the alleged
         absence of fingerprints would be of any particular
         impeachment value. At the time of trial, both Trooper
         Lohrman and Trooper Acevedo positively identified
         Defendant as the driver of the vehicle in question. N.T.
         7/13/10, pp.33, 48-50, 202. During cross-examination,
         trial counsel thoroughly tested this identification by calling
         into question Trooper Lohrman’s opportunity to see the
         driver under the lighting conditions that were present, the
         amount of time he had in which to observe the driver, the
         position from which his observation was made, and
         whether a mistake can be made in distinguishing between
         two people of similar features. N.T. 7/13/10, pp.247 -253.
         The jury heard from the officers that an ID was provided to
         them identifying the driver as Chonce Acey. N.T. 7/13/10,
         p.34. The jury also heard testimony that the codefendant,
         Randy Hayward, told police that Chonce Acey was not the
         driver, while pointing to evidence which would tend to
         identify Defendant. N.T. 7/13/10, pp.244-245. The jury
         was able to consider all of this evidence in reaching its
         verdict, and we cannot conclude that additional evidence of
         an absence of Defendant's fingerprints on the ID would
         have had such additional impeachment value as to render
         the circumstances in this case exceptional so as to warrant
         discovery.

Order of Court, Statement of Reasons, 11/12/15, at 2-4 (emphasis in

original).

      Watley further argues that Attorney Sletvold was “ineffective for failing

to request fingerprint analysis of the ID card prior to trial.” Watley’s Br. at

48.    As Watley acknowledges, a PCRA petitioner alleging ineffective

assistance of counsel must demonstrate resulting prejudice in order to

prevail on his claim.   Id.   Watley argues that he cannot demonstrate the

required prejudice “unless the ID card is actually analyzed and the analysis


                                     - 26 -
J-S75028-16


confirms that Watley’s fingerprints are not present.” Id. This argument is

unconvincing, and Watley offers no support from the case law for this

proposition. The law is clear that there is no discovery in PCRA proceedings

except upon a showing of exceptional circumstances, and the PCRA court

found that exceptional circumstances warranting discovery do not exist in

this matter.     Accordingly, we will not order fingerprint analysis so that

Watley may advance a speculative claim for ineffectiveness of counsel, and

in essence, circumvent the PCRA court’s determination that discovery is

unwarranted.

       Accordingly, because Watley is unable to demonstrate the required

prejudice, his ineffectiveness claim based on Attorney Sletvold’s alleged

failure to request fingerprint analysis fails.

       Order affirmed.13

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2016


____________________________________________


       13
        In light of our disposition of this appeal, we note that Watley is due
for re-sentencing on his PWID conviction pursuant to the PCRA court’s
January 27, 2016 order and opinion.



                                          - 27 -
