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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAWN MCAFEE

                            Appellant                 No. 3010 EDA 2012


                Appeal from the PCRA Order September 20, 2012
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0016133-2008


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED DECEMBER 29, 2014

        Shawn McAfee appeals from the order of the Court of Common Pleas

of Philadelphia County dismissing his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”).1 Upon review, we affirm.

        This Court previously summarized the facts of the case as follows.

        On June 3, 2008, around 8:40 p.m., Police Officer James
        Kuzowsky and Sergeant Patrick McDonald, who were in full
        uniform in a marked police vehicle, were on patrol around the
        1000 block of West Huntingdon Street in Philadelphia, when
        Officer Kuzowsky observed [McAfee] operating a black Jeep.
        [N.T., 4/30/09, at 5-7]. When [McAfee] failed to signal before
        making a right hand turn, the officers stopped him for a violation
        of the Vehicle Code. Id. at 8. Officer Kuzowsky approached
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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     [McAfee’s] vehicle on foot, after which he instructed [McAfee] to
     roll down his heavily tinted windows for the officers’ safety. Id.

     When the officers asked for [McAfee’s] driver’s license,
     registration, and proof of insurance, [McAfee] “proceeded to be
     very nervous, very agitated, and hostile, [asking] why was he
     being pulled over [and stating that] [h]e was being pulled over
     for no reason.”     Id. at 9.     While attempting to find his
     documentation, [McAfee] opened the vehicle’s center console, in
     which Officer Kuzowsky observed “a large amount of money
     loose … and in numerous bundles, rubber bands, and different
     stacks.” Id.

     After observing the money, Sergeant McDonald asked [McAfee]
     if there were any weapons in the vehicle, after which [McAfee]
     became “even more nervous[,] fidgety,” and “hostile.” Id. at
     12, 38-39. [McAfee] became so agitated as to start moving
     back and forth between the passenger and driver’s side of the
     vehicle. Id. [McAfee] was removed from the vehicle for the
     officers’ safety, at which point Officer Kuzowsky observed large
     bulges in his pants pockets[,] which the officer immediately
     identified as consistent with the bundles of currency observed in
     [McAfee’s] vehicle. Id. at 12-13. Sergeant McDonald then
     patted down [McAfee] and recovered numerous large bundles of
     money from [McAfee’s] pants pockets. Id. at 12-13, 17.

     At this point, based on [McAfee’s] suspicious behavior and the
     large amount of money both on his person and in plain view
     inside his vehicle, Officer Kuzowsky suspected that there were
     narcotics and weapons inside the vehicle and radioed for a
     narcotics detecting dog, which arrived about fifteen minutes
     later. Id. at 13. The dog approached the vehicle and “went
     crazy,” indicating that it detected the odor of narcotics on both
     sides of the vehicle. Id. at 14-15. At this point, [McAfee] was
     taken to a police station while police conducted further
     investigation, which included towing [McAfee’s] car to a lot while
     police obtained a warrant to search it. Id. at 15-16, 41. Police
     Officer Brian Myers testified that, on June 3, 2008, he executed
     a search warrant for [McAfee’s] vehicle, pursuant to which he
     recovered three clear jars of suspected PCP, a loaded nine
     millimeter handgun, and $26,998.00 in cash. Id. at 44-47.

Commonwealth v. McAfee, 32 A.3d 272, 272 (Pa. Super. 2011).




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        On April 30, 2009, following a non-jury trial, the court convicted

McAfee of possession of a firearm by a prohibited individual, 2 carrying a

firearm without a license,3 carrying a firearm in public in Philadelphia,4 and

knowing or intentional possession of a controlled substance.5      The court

sentenced McAfee on December 17, 2009, and imposed an aggregate

sentence of 7½ to 15 years’ incarceration, to be followed by 5 years of

probation.     McAfee appealed his judgment of sentence, alleging the trial

court erred in dismissing his motion to suppress evidence seized by the

police following a lawful traffic stop and vehicle search. This Court affirmed

McAfee’s sentence on July 18, 2011. Id.

        On November 17, 2011, McAfee filed a pro se PCRA petition. McAfee

filed an amended petition on February 28, 2012. On April 19, 2012, PCRA

counsel filed an addendum to the amended petition.         Subsequently, the

PCRA court dismissed McAfee’s petition, without a hearing, on September

20, 2012. This timely appeal followed, in which McAfee claims that the PCRA

court erred when it dismissed his petition alleging ineffective assistance of

counsel.

____________________________________________


2
    18 Pa.C.S. § 6105.
3
    18 Pa.C.S. § 6106.
4
    18 Pa.C.S. § 6108.
5
    35 P.S. § 780-113(a)(16).



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      This Court’s standard of review regarding an order dismissing a PCRA

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

evidence of record and is free of legal error. Commonwealth v. Burkett, 5

A.3d 1260, 1267 (Pa. Super. 2010) (citations omitted).                 In evaluating a

PCRA court’s decision, our scope of review is limited to the findings of the

PCRA court and the evidence of record, viewed in the light most favorable to

the prevailing party at the trial level.          Id. We may affirm a PCRA court’s

decision on any grounds if it is supported by the record. Id.

      “To plead and prove ineffective assistance of counsel a petitioner must

establish:    (1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice

resulted from counsel's act or failure to act.” Commonwealth v. Chmiel,

30 A.3d 1111, 1127 (Pa. 2011). Where the petitioner “fails to plead or meet

any elements of the above-cited test, his claim must fail.” Burkett, supra.

      McAfee     first   argues    that   trial   counsel    was   ineffective   for   not

challenging    the   sufficiency    of    the     evidence   supporting    his   firearm

convictions. Illegal possession of a firearm may be shown by constructive

possession.    Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super.

2004)

      Constructive possession is a legal fiction, a pragmatic construct
      to deal with the realities of criminal law enforcement.
      Constructive possession is an inference arising from a set of
      facts that possession of the contraband was more likely than not.
      We have defined constructive possession as conscious dominion.
      We subsequently defined conscious dominion as the power to
      control the contraband and the intent to exercise that control.

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      To aid application, we have held that constructive possession
      may be established by the totality of the circumstances.

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (internal

quotation and citations omitted).

      The PCRA court explained its reasoning for finding the evidence

sufficient to prove constructive possession as follows:

      [McAfee] was acting nervous, fidgety, and hostile with police
      when he was being investigated for a traffic violation.
      Recovered from [McAfee’s] person and scattered about the car
      was $26,998.00 in cash. [McAfee] was the sole occupant of the
      car. [McAfee] clearly knew that cash was in the car. When the
      Officers questioned him about the existence of a weapon in the
      car, for their safety, [McAfee] became even more visibly
      agitated. Clearly, anyone who is carrying that enormous amount
      of cash around would want a means to protect himself and the
      cash – such as a loaded nine millimeter handgun.          See
      Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super.
      2011) (rejected sufficiency challenge to firearms offenses,
      although gun was concealed in a car in which Cruz had no
      ownership interest, where Cruz was the sole occupant and
      appeared to show consciousness of guilt).

PCRA Court Opinion, 7/15/13, at 5.              Based on the totality of the

circumstances, the Commonwealth’s evidence was sufficient to establish that

McAfee was in constructive possession of the firearm. See Hopkins, supra.

      McAfee   also   argues   that   trial   counsel   was   ineffective   for   not

challenging the sufficiency of the evidence supporting his conviction for

knowing or intentional possession of a controlled substance. McAfee claims

he had no knowledge of the existence of the concealed drugs and, therefore,

possession could not be established.




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      Here, McAfee was the sole occupant of the vehicle and was therefore

in exclusive control of the vehicle and its contents.        Based on McAfee’s

suspicious behavior and the large amount of cash divided into bundles in a

manner characteristic of narcotics trafficking, the officers suspected there

were narcotics and weapons inside the vehicle and radioed for a narcotics

detecting dog.    When the dog approached the vehicle, it “went crazy,”

indicating that it detected the odor of narcotics on both sides of the vehicle.

When viewed in their totality, the facts and circumstances support the

court’s finding that McAfee was in constructive possession of the drugs. See

Hopkins, supra.

      Accordingly, McAfee’s claims that the Commonwealth’s evidence was

insufficient to prove constructive possession of the firearm and drugs are

meritless.   Because counsel cannot be deemed ineffective for failing to

pursue   a   meritless    claim,   we   decline   McAfee’s   request   for   relief.

Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2014




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