J-S28024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 OLIVER EMILIO RIVERA                     :
                                          :
                    Appellant             :   No. 1131 MDA 2018

             Appeal from the PCRA Order Entered June 11, 2018
    In the Court of Common Pleas of Luzerne County Criminal Division at
                      No(s): CP-40-CR-0002592-2014


BEFORE:    BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED AUGUST 27, 2019

      Oliver Rivera appeals from the Order of the Court of Common Pleas of

Luzerne County that denied his petition filed under the Post-Collateral Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Rivera claims counsel was

ineffective for failing to file a motion to suppress evidence seized pursuant to

a search warrant. We affirm.

      The following is taken from the affidavit of probable cause in support of

the warrant. In February 2014, agents from the Pennsylvania Office of

Attorney General (“OAG”) conducted a sting operation in the parking lot of the

Giant food store in Hazleton. The operation took place based on information

from a confidential informant (“CI”) who arranged to buy heroin from Rivera’s

codefendant, Rachel Rebarchick. At the appointed time and place, Rebarchick

arrived with Rivera in a Honda Accord; the CI was waiting in the parking lot

____________________________

* Retired Senior Judge assigned to the Superior Court.
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in another vehicle. Rebarchick got into the CI’s vehicle, while Rivera got into

a Pontiac Grand Am. Rebarchick then sold 499 packets of heroin to the CI,

after which she got back into the Accord.

      Subsequently, OAG agents stopped the vehicles carrying Rebarchick and

Rivera. The agents found Rivera in possession of 200 packs of heroin, 18

grams of cocaine, and 3.5 grams of crack cocaine, and they took him into

custody. Rebarchick waived her Miranda rights and told agents that Rivera

had supplied the heroin she had sold to the CI. She said he told her to give

the heroin to the CI, and to get the money from the CI to give to him.

Rebarchick also said that Rivera had come to the parking lot from 541 North

Locust Street in Hazleton.

      That same day, OAG agents received additional information about

Rivera from a “known but unnamed” confidential source (“CS”). Aff. of

Probable Cause at 3, R.R. 38. The CS said that Rivera and others used the

second-floor apartment at 541 North Locust Street in Hazleton as a

“workhouse” to package heroin and cocaine. The CS stated that he/she

observed numerous incriminating items on the day before the sting operation

while in the apartment with Rivera: a black duffle bag “filled with dope,”

heroin, cocaine, a scale on the counter, and packaging materials for drugs.

The CS also said that Rivera had a key to the apartment.

      A magisterial district judge issued a warrant for 541 North Locust Street

in Hazleton. When agents executed it, they recovered heroin, cocaine, a digital

scale, and bail bond paperwork in the name of Oliver Rivera.

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      Rivera initially hired Mark Mack, Esquire to represent him. N.T.,

5/30/18, at 2-3. However, the trial court allowed Mack to withdraw as counsel

and Thomas Cometa, Esquire entered his appearance on behalf of Rivera.

Rivera pled guilty in December 2015 to one count of possession with intent to

deliver 310.75 grams of cocaine and one count of possession with intent to

deliver 122.9 grams of heroin. However, Rivera moved to withdraw his guilty

plea and the trial court granted the motion.

      Rivera then switched counsel several times. He first filed a Motion to

Proceed Pro Se, but the trial court did not rule on that motion, evidently

because the day after he filed it, a new lawyer, Brian Corcoran, Esquire of the

Luzerne County Public Defender’s Office, entered his appearance on Rivera’s

behalf. However, the Public Defender’s Office moved for conflict counsel, and

the trial court granted the motion and appointed Mary Deady, Esquire.

Although Deady moved to suppress the evidence seized pursuant to the

warrant, the court dismissed the motion as untimely.

      Eventually, Rivera again pled guilty to the same offenses as those to

which he had previously pled guilty, and the court sentenced him to eight to

16 years of incarceration. Rivera did not file a post-sentence motion or an

appeal. He did file a timely pro se PCRA petition, and subsequently, an

amended pro se PCRA petition. Paul Walker, Esquire later entered his

appearance on behalf of Rivera and filed an amended PCRA petition. The

petition claimed, among other things, that all prior counsel were ineffective




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for failing to move to suppress the evidence seized from the apartment

because Rivera was allegedly not in Hazleton on the day in question.

      At a hearing, Rivera narrowed his claims to argue only that his first

lawyer, Mack, was ineffective for failing to a file a motion to suppress,

contending that Mack had represented Rivera “during the period within which

the motions had to be filed.” N.T., 5/30/18, at 42. Rivera testified that he was

in Baltimore on the day of the controlled buy, which made it impossible for

him to be in Hazleton on that date, as was alleged in the affidavit of probable

cause. Id. at 12-14, 24-25. He stated that he left his residence in Drums,

Pennsylvania between approximately 7:30 a.m. and 8:30 a.m. on that day to

travel to Baltimore. Id. at 15, 36. As support, Rivera presented a YouTube rap

video that he claimed he appeared in and filmed in Baltimore on the day of

the sting operation. Id. at 24. He testified that he told Mack of his alibi and

the video and asked him to file a motion to suppress based on this information,

but Mack had not done so despite his repeated requests. Id. at 5-7, 10, 15,

25-26. No other witnesses testified at the PCRA hearing on Rivera’s behalf and

Mack was not present at the PCRA hearing. Id. at 34.

      The PCRA court denied Rivera’s petition and Rivera filed the instant

timely appeal raising three issues:

         I. Whether, the Lower Court erred in denying Appellant’s
         Amended Petition For Post-Conviction for Collateral Relief
         when it found that probable cause existed for the issuance
         [of a] warrant thus obviating any merit to a suppression
         motion.



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         II. Whether, the Lower Court erred in finding that
         Appellant’s attorneys made a strategic decision in not filing
         a Motion to Suppress.

         III. Whether, [the] Lower Court erred in denying Appellant’s
         Amended Post-Conviction Act Petition as Appellant was
         prejudiced by his counsels’ failure to timely file a Motion [t]o
         Suppress.

Rivera’s Brief, at 7.

      We review an order denying relief under the PCRA to determine whether

the record supports the PCRA court’s findings and the decision is free of legal

error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We afford

the court’s factual findings deference if the record supports those findings.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa.Super. 2012). The

appellant has the burden of convincing this Court that the PCRA court erred

and that relief is due. Id.

      There is a presumption that counsel is effective. Commonwealth v.

Andrews, 158 A.3d 1260, 1263 (Pa.Super. 2017). In order to prevail on a

claim that counsel was ineffective, the petitioner must establish three things:

“(1) his 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 challenged proceeding would

have been different.” Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa.

2003). “A failure to satisfy any prong of the ineffectiveness test requires




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rejection of the claim of ineffectiveness.” Commonwealth v. Daniels, 963

A.2d 409, 419 (Pa. 2009).

      We will address Rivera’s three claims together, as all of his claims assert

that counsel was ineffective in failing to file a motion to suppress the evidence

obtained during the search of the North Locust Street apartment. To the

extent Rivera claims on appeal that counsel other than Mack was ineffective,

he has waived any such argument by narrowing his claim to Mack at the PCRA

hearing.

      Specifically, Rivera argues that because he was in Baltimore, Maryland

on the day in question, the search warrant was defective because it relied on

the CS’s false statements. Rivera maintains that in the absence of a motion to

suppress, he never had the opportunity to demonstrate that the court issued

the search warrant based, in part, on false averments. Therefore, he contends

that he was denied the right to attack the averments in the affidavit of

probable cause and thus, was unable to challenge the validity of the warrant.

      Where a petitioner alleges that counsel ineffectively failed to file a

suppression motion, “the inquiry is whether the failure to file the motion is

itself objectively unreasonable, which requires a showing that the motion

would be meritorious.” Commonwealth v. Johnson, 179 A.3d 1153, 1160

(Pa.Super. 2018). “Where the challenge is to a failure to move for suppression

of evidence, the 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 verdict would have been

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more favorable.” Commonwealth v. Melson, 556 A.2d 836, 839 (Pa.Super.

1989).

      Rivera’s ineffectiveness claim fails because his challenge to the warrant

lacks arguable merit. A search warrant must be supported by probable cause

in order to be valid. Commonwealth v. Johnson, 42 A.3d 1017, 1031 (Pa.

2012). Probable cause exists where:

           the facts and circumstances within the affiant’s knowledge
           and of which he has reasonably trustworthy information are
           sufficient in themselves to warrant a man of reasonable
           caution in the belief that a search should be conducted. In
           considering an affidavit of probable cause, the issuing
           magistrate must apply the “totality of the circumstances
           test” which requires her to make a practical, common-sense
           decision whether, given all of the circumstances set forth in
           the affidavit ... including the veracity and basis of knowledge
           of persons supplying hearsay information, there is a fair
           probability that contraband or evidence of a crime will be
           found in a particular place. A court reviewing a search
           warrant determines only if a substantial basis existed for the
           magistrate to find probable cause.

Id. (citations and quotations omitted). Further, we accord deference to a

magistrate’s finding of probable cause, as probable cause is based on a finding

of   the   probability   of   criminal   activity,   not   a   prima   facie   showing.

Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa.Super. 2013). Moreover,

when determining whether the warrant was issued upon probable cause, we

must limit our inquiry to the information contained within the four corners of

the affidavit presented in support of probable cause. Id.

      “While [this Court has] recognized that the veracity of facts establishing

probable cause recited in an affidavit supporting a search warrant may be

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challenged and examined, we have not suggested that every inaccuracy will

justify an exclusion of evidence obtained as a result of the search.”

Commonwealth v. Baker, 24 A.3d 1006, 1017 (Pa.Super. 2011) (quoting

Commonwealth v. Monte, 329 A.2d 836, 842 (Pa. 1974)) (citations

omitted). “[M]isstatements of facts will invalidate a search warrant and

require suppression of the fruits of the search only if the misstatements of fact

are deliberate and material.” Id. (quoting Commonwealth v. Tucker, 384

A.2d 938, 941 (Pa.Super. 1978)) (emphasis in Baker). Indeed, “[t]he

inclusion of false evidence will not invalidate a search warrant if the warrant

is based upon other information which is valid and sufficient to constitute

probable cause.” Tucker, 384 A.2d at 941.

      The information contained in the affidavit was sufficient to establish

probable cause to issue the search warrant for the North Locust Street

apartment. The affidavit of probable cause stated that the affiant and other

agents had personally observed Rivera’s involvement in the drug transaction,

which took place only one day after the CS allegedly was with Rivera in the

apartment and had observed a black duffle bag “filled with dope,” heroin,

cocaine, a scale, and packaging materials for drugs. In addition, the CS said

Rivera had a key to the apartment. Rivera has supplied no evidence that the

CS’s statements were deliberate or material misstatements. Baker, 24 A.3d

at 1017.

      Rivera’s claim that he was in Baltimore on the day that the CS alleged

that he/she was with Rivera in the North Locust Street apartment does not

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prove that the CS’s statements were false. His testimony at the PCRA hearing

was that he left his home in Drums between approximately 7:30 a.m. and

8:30 a.m. on the day in question to travel to Baltimore. This does not, in fact,

contradict the CS’s statements repeated in the search warrant. By Rivera’s

own account, Rivera was in Luzerne County on the day in question before he

left between 7:30 a.m. and 8:30 a.m. to travel to Baltimore. It was thus

entirely possible for Rivera to have been present at 541 North Locust Street

during the seven-and-a-half hour window between 12:00 a.m. and 7:30 a.m.

on the day in question. This was consistent with the CS’s statements in the

search warrant. As the PCRA court aptly stated:

         [Rivera] seems to believe that because he left his residence
         on Snow Valley Drive in Drums at 7:30 a.m. on February
         16, 2014, he could not have been present at the 541 North
         Locust Street apartment at any time prior thereto and that
         this testimony somehow affects the validity of the search
         warrant. Based upon the record before the court, [Rivera’s]
         presence at the apartment on February 16, 2014 does not
         negate the establishment of probable cause. [Rivera] did
         not contest the accuracy of the search warrant with the
         exception of his presence on the premises on February 16.

PCRA Court Opinion, filed June 15, 2018, at 5.

      Accordingly, we conclude that the issuing authority in this case made “a

practical, common-sense decision” based on the totality of the circumstances

set forth in the affidavit that there was “a fair probability that contraband or

evidence of a crime” would be found at 541 North Locust Street. Johnson, 42

A.3d at 1031. Because the issuance of the search warrant was supported by

probable cause, Rivera’s trial attorneys were not ineffective for failing to file a

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motion to suppress that would not have been meritorious. “Trial counsel

cannot be held to be ineffective for failing to take futile actions or to raise a

meritless claim.” Commonwealth v. Howard, 645 A.2d 1300, 1304 (Pa.

1994).

      Rivera’s challenge to the search warrant fails for an additional reason.

As the PCRA court pointed out, Rivera did not establish a privacy interest in

the North Locust Street apartment. In order to prevail on a motion to suppress

evidence, “a defendant is required to separately demonstrate a personal

privacy interest in the area searched or effects seized, and that such interest

was    actual,   societally   sanctioned   as   reasonable,   and    justifiable.”

Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998) (citations and

quotations omitted). “Such a legitimate expectation of privacy is absent where

an owner or possessor meaningfully abdicates his control, ownership or

possessory interest.” Id. There was no evidence that Rivera had a personal

privacy interest in the North Locust Street apartment. Therefore, he could not

prevail on a motion to suppress and counsel cannot be held to have been

ineffective for failing to file a non-meritorious motion. Thus, Rivera is not

entitled to relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/27/2019




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