J-S12024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

RILEY G. DARLENE,

                            Appellant                     No. 983 EDA 2014


            Appeal from the PCRA Order Entered February 26, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-1301267-2006


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                                 FILED APRIL 30, 2015

       Appellant, Darlene G. Riley,1 appeals from the order denying her

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.              The facts adduced at

Appellant’s bench trial are as follows:        On March 9, 2006, as a result of an

investigation of suspected drug activity at Appellant’s address, 1636 North

6th Street in Philadelphia, Pennsylvania, Officer Henry Giammarco of the

Pennsylvania Office of Attorney General Bureau of Narcotics and Drug

Control secured a search warrant for the premises. N.T. (Trial), 12/4/09, at
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
     Appellant has been identified intermittently throughout the adjudication
of the criminal underlying case and the PCRA proceedings as “Riley Darlene”
and/or “Darlene Riley aka Riley Darlene.” Appellant’s correct name is
Darlene Riley.
J-S12024-15



31.   When executing the warrant the following day, the participating law

enforcement officers encountered and arrested Appellant’s son. Id. at 34.

Appellant was not at home, but her son informed the officers that she was

two blocks away at a school. Id. at 87. Some of the officers travelled to the

school where they encountered Appellant. Agent James Avery testified that

he approached Appellant in his SWAT uniform with a shotgun slung across

his body, but not pointed at Appellant. Id. at 80. Agent Christina Staunton

testified that she may have approached Appellant with a weapon drawn

because Appellant was conversing with several people on a corner. Id. at

99. Rosita Young, a witness called by Appellant, testified that the officers

approached with weapons drawn and pointed at Appellant. Id. at 135–136.

       Agents Avery and Staunton testified differently concerning Appellant’s

arrest. Agent Avery recalled that Appellant was handcuffed and arrested in

the school yard area, N.T. (Trial), 12/4/09, at 81; Agent Staunton recounted

that Appellant was not handcuffed in the school yard and was not arrested

until the officers brought her back to the premises being searched. Id. at

117–120.      Agent Staunton further testified that once back at 1636 North

6th Street, she witnessed Appellant receive her Miranda2 rights, sign a

waiver of those rights, and sign a consent to search her vehicle. Id. at 101-

102, 107–108.

____________________________________________


2
    Miranda v. Arizona, 396 U.S. 868 (1969).



                                           -2-
J-S12024-15


      Inside the property, the executing officers discovered approximately

1400 pills and $309.00 in United States currency. N.T. (Trial), 12/4/09, at

34-35. Some of the pills were in bottles with Appellant’s name on the label

and some were found in bottles with obliterated labels. Id. at 43–44. The

majority of the pills were in amber pill bottles and bags scattered on the first

floor. Id. at 44–46. Documents verifying that Appellant lived in the house

were also seized. Id. at 51. Additionally, the officers searching Appellant’s

vehicle recovered and searched Appellant’s purse.        The purse contained

$1295.00 in United States currency, including a $100 pre-recorded bill that

had been utilized during investigation of the drug activity at Appellant’s

house. Id. at 35.

      After   the   search   was   completed,   Agents   Avery   and   Staunton

transported Appellant to police headquarters. N.T. (Trial), 12/4/09, at 84,

106. Agent Staunton testified that Appellant was cooperative and admitted

to selling pills because she “fell on hard times” and “knew she had done

wrong.”     Id. at 107.   Agent Staunton was present when Appellant gave a

statement to Agent John Cohen confessing to selling pills for about five to six

months, and witnessed her initialing each page of the statement.         Id. at

109, 126.


      On November 21, 2006, Appellant filed an omnibus pretrial motion

requesting, inter alia, that her statement be suppressed. On July 9, 2009, a

hearing was held on the motion before the Honorable Ramy Djerassi. Agent


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Staunton testified that Appellant was not arrested at the school and that,

when Appellant returned to 1636 North 6th Street, she consented to a

search of her vehicle, was issued her Miranda warnings, and signed a

waiver of her constitutional rights.   N.T. (Suppression), 7/9/09, at 10–12;

15–16; 26.      Agent Staunton also detailed that she was present when

Appellant gave her statement to Agent Cohen and witnessed Appellant initial

each page of the statement. Id. at 16–17.

      Appellant also testified at the suppression hearing, offering a very

different account of the events. In Appellant’s version, Agent Staunton ran

up to her in the school yard with a shotgun and held the gun to the base of

her neck. N.T. (Suppression), 7/9/09, at 33. She was then restrained with

two sets of handcuffs.    Id. at 34.    Appellant also claimed that she was

rushed into signing the consent to search her vehicle and acknowledgement

of her Miranda rights.     She denied receiving an oral recitation of her

Miranda rights or any explanation of the paperwork she signed. She also

averred that she was not afforded an opportunity to read the documents.

Id. at 35–36.    Regarding the questioning at the police station, Appellant

remembered being asked only four questions related to her health care

provider and her prescribed medications. Id. at 38. Appellant claimed that

she did not recognize the written statement that was recorded at the police

station by Agent Cohen, nor did she admit to signing the statement. Id. at

39–40.


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      On cross examination, Appellant initially averred that, although her

signature appeared on the bottom of the consent to search the vehicle, she

did not sign the document.         N.T. (Suppression), 7/9/09, at 43.           However,

Appellant recanted that statement when she was shown her certificate of bail

and her signature on that document matched the signature on the consent.

Id. at 44. She also reiterated her direct examination testimony that Agent

Cohen only questioned her about her physician and denied admitting that

she had done “a bad thing.” Id. at 46–47.

     At   the    conclusion   of    the   hearing,   Judge       Djerassi   denied   the

suppression motion, convinced that Appellant “lied to this Court.”                   N.T.

Suppression, 7/9/09, at 56.        He further found that Appellant received her

Miranda rights and that the statement she gave to Agent Cohen was

knowing, intelligent, and voluntary.        Id. at 57.       Given Judge Djerassi’s

unfavorable     assessment    of    Appellant’s   credibility,    Appellant’s    counsel

requested that the judge recuse himself from further proceedings involving

Appellant. Judge Djerassi granted the motion. Id. at 58.

     On December 4, 2009, Appellant waived her right to a jury trial and

proceeded to a bench trial before the Honorable Glynnis Hill.                     At the

conclusion of testimony and argument by counsel, the trial court found

Appellant guilty of possession with intent to deliver controlled substances

(“PWID”), possession of controlled substances, and criminal conspiracy.

Appellant was sentenced to a five-to-ten-year term of incarceration.


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      Appellant appealed to this Court.      Appellant’s trial counsel, James

Mugford, Esquire, filed a Pa.R.A.P. 1925(b) statement of errors complained

of on appeal raising four issues. Trial counsel then withdrew, and the trial

court appointed Jerome Brown, Esquire, as appellate counsel who filed an

additional Pa.R.A.P. 1925(b) statement.       The trial court addressed the

substantive issues raised in both statements in its Pa.R.A.P. 1925(a) opinion,

but, citing Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), declined to

discuss those issues alleging ineffectiveness of counsel. Trial Court Opinion,

6/4/10, at 3 n.3. Concerning the merits of Appellant’s claims, the trial court

concluded that the suppression court did not err when it denied Appellant’s

motion to suppress because her written and oral statements were given

voluntarily. The trial court also determined that the statements were not the

fruit of an illegal arrest.   Finally, the trial court considered and rejected

Appellant’s claims that the Commonwealth committed misconduct by

presenting false police testimony concerning whether the agents approached

Appellant with their weapons drawn, that her waiver trial colloquy was

deficient, and that the verdict was against the sufficiency and weight of the

evidence. Id. at 18.

      In her appellate brief, Appellant restyled her argument about Agent

Staunton’s inconsistent testimony and Commonwealth misconduct as a




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Brady3 violation.      Appellant also argued that her statement should have

been suppressed on the alternate ground that it was not voluntary.

Commonwealth v. Riley, 237 EDA 2010 (Pa. Super. filed June 24, 2011)

(unpublished memorandum at 1–2). The Superior Court panel in the direct

appeal agreed with the trial court that the claim of misconduct lacked merit

and noted additionally that there was no legal basis supporting a Brady

violation. Riley, slip op. at 3–4. The panel also observed that Appellant did

not establish that Agent Staunton’s credibility was determinative of

Appellant’s guilt or innocence.         The panel reasoned that even if coercive

tactics employed by the agents rendered Appellant’s statement to the police

involuntary, the other evidence offered at trial supported the guilty verdict.

Id. at 6.    Finally, the panel rejected Appellant’s claim that her statement

was not voluntary and affirmed on the basis of the trial court’s opinion. Id.

at 7.

        On April 20, 2012, Appellant filed a timely PCRA petition alleging trial

counsel’s    ineffectiveness.       Appellant    first   claimed   that   counsel   was

ineffective for failing to move for a mistrial or to have the suppression

hearing reopened when the trial testimony revealed that Appellant testified

credibly at the suppression hearing regarding the circumstances of her

apprehension.       As part of this allegation of ineffectiveness, Appellant

____________________________________________


3
    Brady v. Maryland, 373 U.S. 83 (1963).



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contends that her arrest was illegal and that the Commonwealth’s seizure of

her vehicle and search of the purse discovered therein, as well as the taking

of her statement, were illegal acts by the Commonwealth as they constituted

fruit of the poisonous tree.        Appellant also alleged that trial counsel was

ineffective for failing to seek suppression of the evidence seized from the

search of her vehicle, failing to present Rosita Young’s testimony at the

suppression hearing, and failing to request the trial court to revisit the issue

of voluntariness under the Massachusetts rule.4            Finally, Appellant re-

asserted her claim that the Commonwealth committed misconduct by

presenting false testimony about Appellant’s arrest.

       The Commonwealth filed a motion to dismiss on November 20, 2012.

Appellant filed a response on September 13, 2013. On November 07, 2013,

the Commonwealth filed a supplemental motion to dismiss. On January 16,

2014, the trial court, now sitting as the PCRA court, filed a Pa.R.Crim.P. 907

notice of intent to dismiss the petition. On January 29, 2014, Appellant filed
____________________________________________


4
   Pennsylvania has adopted the “Massachusetts” or “humane” rule with
regard to determining the voluntariness of statements by an accused.
Commonwealth v. Baker, 24 A.3d 1006, 1024 n.16 (Pa. Super. 2011)
(quoting Commonwealth v. Motley, 372 A.2d 764, 768 (Pa. 1977));
Pa.R.Crim.P. 323(j) (renumbered Rule 581, effective April 1, 2001). This
procedure allows a criminal defendant to attack the voluntariness of his
confession both at a suppression hearing and at trial. Motley, 372 A.2d at
768.    Thus, if the suppression court determines that a confession is
voluntary, a defendant may challenge the voluntariness before the jury; if
the jury determines that the confession was involuntary, it may ignore that
evidence. Commonwealth v. Myers, 371 A.2d 1279 (Pa. 1977).




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objections to the Rule 907 notice of dismissal contending that the PCRA

court improperly analyzed the issue of the voluntariness of Appellant’s

statement as a Fifth Amendment issue.       Appellant urged that because the

question implicated the legality of her arrest, the PCRA court should have

instead conducted a Fourth Amendment analysis.         On February 26, 2014,

the PCRA court dismissed Appellant’s PCRA petition.

      On March 21, 2014, Appellant filed a pro se notice of appeal from the

order denying PCRA Relief.      Attorney Brown was granted permission to

withdraw, and Raymond Roberts, Esquire, was appointed to represent

Appellant. The PCRA court did not order counsel to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.

      On May 13, 2014, the PCRA court issued a Pa.R.A.P. 1925(a) opinion

discussing its rationale for dismissing Appellant’s petition. The PCRA court

first concluded that three of Appellant’s ineffectiveness claims, i.e., counsel’s

failure to move for a mistrial or request that the suppression hearing be re-

opened based upon Agent Staunton’s alleged inconsistent testimony,

counsel’s failure to request suppression of Appellant’s statements and

physical evidence retrieved from her vehicle as fruit of the poisonous tree

from an illegal arrest, and counsel’s failure to argue that the Commonwealth

committed misconduct by presenting false testimony, were previously

litigated and could not be pled in a PCRA petition. PCRA Opinion, 5/13/14,

at 7–9. The PCRA court further opined that, even if presented, Appellant’s


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motion for a mistrial would have been denied because “there is no indication

that the testimony offered by the Commonwealth was false, or that any

action by the Commonwealth rose to the level of a Brady violation. . . . As

the Appellant failed to demonstrate she was unfairly prejudiced, there is

little substance to her claims.” Id. at 8–9.

         Regarding the legality of Appellant’s arrest, the PCRA court concluded

this claim was previously litigated, denied by the trial court, and affirmed on

appeal. The PCRA court then made the additional observation that it would

have found Appellant guilty “even without [Appellant’s] statement to police”

and “even if one did not take into consideration items recovered from []

Appellant’s car.” PCRA Opinion, 5/13/14, at 10.

         The PCRA court likewise ruled against Appellant’s argument that

counsel was ineffective for failing to call Rosita Young as a witness at the

suppression hearing because she did not meet the requirements of the

failure to call a witness test.   PCRA Opinion, 5/13/14, at 11.    Finally, the

PCRA court determined that counsel was not ineffective for failing to request

that the trial court revisit the voluntariness of Appellant’s statement to the

police, because the court considered the voluntariness of the statement at

trial. Id. at 12. The PCRA court thus concluded that “all of the Appellant’s

underlying claims lack merit, and there was no reasonable probability that

the outcome of the challenged proceeding would have been different.” Id.

at 13.


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      Appellant’s newly appointed counsel filed an appellate brief, raising the

following issues for review:

            I. TRIAL COUNSEL WAS INEFFECTIVE IN THAT HE:

           a. FAILED TO MOTION FOR A MISTRIAL AND FAILED TO
      HAVE THE SUPPRESSION HEARING REOPENED BASED ON THE
      INCONSISTENCIES OF AGENT STAUNTON'S TESTIMONY AND
      THE SUBSEQUE[]NT TESTIMONY OF AGENT AVERY.


           b. FAILED TO SEEK TO SUPPRESS AND RAISE ON APPEAL
      THAT APPELLANT’S STATEMENTS AND PHYSICAL EVIDENCE
      SEIZED FROM HER VEHICLE WERE THE “FRUIT OF THE
      POISONOUS TREE” FROM AN ILLEGAL ARREST.


           c. FAILED TO ARGUE THAT THE COMMONWEALTH
      COMMITTED MISCONDUCT BY PRESENTING FALSE TESTIMONY
      ABOUT MS. RILEY’S ARREST AND HIDING THIS BRADY
      MATERIAL AT THE SUPPRESSION HEARING.


          d. FAILED TO PRESENT THE TESTIMONY OF ROSITA
      YOUNG AT THE SUPPRESSION HEARING.

           e. FAILED TO SEEK TO HAVE THE COURT REVISIT THE
      ISSUE OF THE VOLUNTARINESS OF APPELLANT’S STATEMENT
      AT THE TIME OF TRIAL UNDER THE MASSACHUSETTS RULE.


      2. APPELLATE COUNSEL AND PCRA COUNSEL WERE
      INEFFECTIVE IN FAILING TO RAISE THE SUFFICIENCY ISSUE
      WITH REGARD TO THE CONSPIRACY CHARGE AND

          2b IN FAILING TO RAISE THE ISSUE OF MERGER WITH
      REGARD TO THE SUBSTANTIVE CHARGES OF PWID AND SIMPLE
      POSSESSION.

      3. ALL COUNSEL WERE INEFFECTIVE IN FAILING TO RAISE AND
      PRESERVE AT ANY LEVEL INCLUDING COLLATERAL REVIEW THE
      FAILURE OF THE COURT TO FIND APPELLANT ELIGIBLE FOR THE
      RRRI ELIGIBILITY AND



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          3b. THE UNCONSTITUTIONALITY OF PENNSYLVANIA’S
      MANDATORY MINIMUM SENTENCING SCHEME


          3c. AND THAT THE MANDATORY SHOULD NOT APPLY
      WHERE EACH SALE WAS A SEPARATE CRIMINAL ACT.

Appellant’s Brief at 11 (verbatim).

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

petition under the PCRA 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).                    The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.   Commonwealth v. Carter, 21 A.3d 680,

682 (Pa. Super. 2011).

      Each of Appellant’s claims contends that either her trial, appellate,

and/or PCRA counsel were ineffective.          To succeed on an ineffectiveness

claim, a PCRA petitioner must satisfy the test set forth in Strickland v.

Washington, 466 U.S. 668, 687 (1984). Applying the Strickland test, an

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. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012)

(citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)).


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    We address first Appellant’s five claims of ineffectiveness of trial

counsel.5     The PCRA court concluded that three of the allegations—trial

counsel’s failure to move for a mistrial or request that the suppression

hearing be re-opened, counsel’s failure to seek to suppress Appellant’s

statements and physical evidence retrieved from her vehicle as fruit of the

poisonous tree from an illegal arrest, and counsel’s failure to argue that the

Commonwealth committed misconduct by presenting false testimony—were

previously litigated and could not be re-litigated as ineffectiveness of counsel

claims.     It also concluded that the arguments did not have merit.      PCRA

Opinion, 5/13/14, at 13.

       Initially, we take issue with the PCRA court’s determination that these

three allegations of ineffectiveness were previously litigated.      The PCRA
____________________________________________


5
    Because the PCRA court did not order counsel to file a Pa.R.A.P. 1925(b)
statement, it considered the issues on appeal as those enumerated in the
PCRA petition filed by Attorney Brown. In the brief filed on appeal from the
PCRA court’s denial of Appellant’s petition, Appellant’s current appellate
counsel, Attorney Roberts, raised the same allegations of trial counsel’s
ineffectiveness, along with a new assertion that trial counsel was ineffective
for failing to raise the legality of Appellant’s arrest on appeal. Our review of
the proceedings reveals that while trial counsel, James Mugford, did not
include the arrest issue in the 1925(b) statement he filed before he
withdrew, appointed counsel for the direct appeal, Attorney Brown, raised
the issue and the trial court addressed it. However, Attorney Brown did not
identify the legality of Appellant’s arrest as an issue for review in the brief
presented to this Court on direct appeal. See Commonwealth v. Riley,
237 EDA 2010 (Pa. Super. filed June 24, 2011) (unpublished memorandum
at 1–2) (identifying claims on review by reference to Appellant’s brief). That
oversight, though, implicates a question of appellate counsel’s effectiveness,
not trial counsel’s. Attorney Roberts has not argued in this appeal that
direct appeal counsel was ineffective in this regard.



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statute   provides   that    the   petitioner   must   plead   and   prove   by   a

preponderance of the evidence that the allegation of error has not been

previously litigated or waived. 42 Pa.C.S. § 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 [.]” 42 Pa.C.S. § 9544(a)(2).

      In Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005), our

Supreme Court examined the PCRA statute’s preclusion of previously

litigated issues and addressed whether “a claim of ineffectiveness is a

discrete legal ground or merely an alternative theory in support of the same

underlying issue that was raised on direct appeal.”        Id. at 570–573.    The

Supreme Court concluded that an ineffectiveness claim is distinct because it

challenges “the adequacy of representation rather than the conviction of the

defendant.”    Id. at 573.    In so concluding, the Collins Court noted that

“[u]ltimately, the claim may fail on the arguable merit or prejudice prong for

the reasons discussed on direct appeal, [even though] a Sixth Amendment

claim raises a distinct issue for purposes of the PCRA and must be treated as

such.” Id.

      The PCRA court’s erroneous conclusion that these claims were

previously litigated, however, does not require reversal because the PCRA

court also addressed, to varying extents, the merits of these ineffectiveness

allegations.   As regards the assertions that trial counsel was ineffective


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because he did not request that the suppression hearing be re-opened and

did not argue that the Commonwealth committed misconduct (the Brady

argument), the PCRA court determined that these arguments “lack merit

because [Appellant] was not prejudiced by counsel’s failure to raise these

issues.” PCRA Opinion, 5/13/14, at 7. Although conflated with its erroneous

conclusion that these claims were “previously litigated,” the PCRA court

noted that it had earlier rejected Appellant’s contention that Agent

Staunton’s suppression hearing testimony could be characterized as false

and that a panel of this Court affirmed that conclusion based upon the trial

court’s reasoning.   Id. at 8; Riley, slip op. at 3.      The PCRA court also

pointed out that this Court on direct appeal concluded that Appellant could

not prove a Brady violation. PCRA Opinion, 5/13/14, at 7; see Riley, slip

op. at 4 (Appellant knew at suppression hearing that Agent Staunton’s

recollection of initial confrontation varied from Appellant’s version).

      We construe the PCRA court’s decision on the ineffectiveness related to

trial counsel’s failure to request to re-open the suppression hearing and to

argue that the Commonwealth committed misconduct as a determination

that Appellant failed to satisfy the prejudice prong of the ineffective counsel

inquiry. In other words, Appellant could not demonstrate that there was a

reasonable probability that, but for counsel’s ineffectiveness, the outcome of

the proceedings would have been different.        Commonwealth v. Ali, 10

A.3d 282, 291 (Pa. 2010). Here, we agree with the trial court. Although


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Appellant strenuously contends that Agent Staunton’s testimony at the

suppression hearing was inconsistent with the trial testimony to the point of

fabrication, there is no indication that the Commonwealth offered false

testimony. As observed by the trial court:

      [B]oth [Agent Avery and Agent Staunton] qualified their
      testimony by saying that they could not be sure of the exact
      circumstances of the arrest because three years had elapsed
      since the day of the incident. The officers testified from memory
      to the best of their ability. The only evidence contrary to the
      officers’ is the testimony of the defense witness, Rosita Young.
      Young’s arrest account contradicted that of the officers. This
      contradictory testimony alone does not indicate that the officers
      offered false testimony.      The inconsistencies between the
      officers’ account and Young’s account were for the fact finder to
      consider. The fact-finder determines the weight to be afforded
      to testimony.

            The court believes the Commonwealth did not commit
      misconduct.     The court has no reason to believe the
      Commonwealth’s testimony was false. The officers testified from
      memory regarding events three years old. In addition, the court
      has no evidence that the Commonwealth presented witnesses
      they knew would lie under oath. Just because the Appellant
      offered a witness who testified differently from the
      Commonwealth’s witnesses does not mean the Commonwealth
      was guilty of misconduct. Therefore, the Commonwealth did not
      commit misconduct and no error occurred.

Trial Court Opinion, 6/4/10, at 12–13.       As noted, the direct appeal panel

affirmed the trial court on this issue based upon the trial court’s reasoning.

Riley, slip op. at 3.

      The Riley direct appeal panel also rejected Appellant’s Brady

argument:

            Riley asserts that the Commonwealth’s misconduct
      constituted a violation of the United States Supreme Court’s


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      holding in Brady. To establish a Brady violation, an appellant
      must prove three elements:

            [1] the evidence [at issue] was favorable to the
            accused, either because it is exculpatory or because it
            impeaches; [2] the evidence was suppressed by the
            prosecution, either willfully or inadvertently; and [3]
            prejudice ensued.

      Commonwealth v. Paddy, 15 A.3d 431, 450 (Pa. 2011)
      (citation omitted). In addition,

            [t]here is no Brady violation when the appellant
            knew or, with reasonable diligence, could have
            uncovered the evidence in question, or when the
            evidence was available to the defense from non-
            governmental sources.

      Commonwealth v. Dixon, 997 A.2d 368, 376 (Pa. Super. 2010)
      (citation omitted). Finally, in order to be entitled to a new trial
      for failure to disclose evidence affecting a witness’ credibility, the
      defendant must demonstrate that the reliability of the witness
      may well be determinative of his guilt or innocence.
      Commonwealth v. Marinelli, 810 A.2d 1257, 1274 (Pa. 2002).

            In this case, Riley knew at the time of the suppression
      hearing that Agent Staunton’s version of the agents’ initial
      confrontation with Riley differed from Riley’s version of the
      events.4 Thus, on this basis, there is no Brady violation.
            4
              In its Opinion, the trial court acknowledged Agent
            Staunton’s suppression hearing testimony that the
            agent “may have approached [Riley] with a weapon
            drawn because [Riley] was conversing with several
            people on a corner.” Trial Court Opinion, 6/4/10, at
            6. In addition, as noted by the trial court, Agent
            Staunton conceded that “she was not totally sure of
            a few details because of the amount of time that had
            passed between the arrest and the trial. The arrest
            occurred three years prior to trial. Id. at 6.

Riley, slip op. at 3–4.




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      The PCRA court’s conclusion that Appellant could not demonstrate

prejudice traceable to trial counsel’s failure to request that the suppression

hearing be re-opened or for failing to argue that a Brady violation occurred

is supported by the record, as well as this Court’s determination on direct

appeal.   There was no indication that the agents’ somewhat different

versions of events was occasioned by anything other than memory loss due

to the passage of time. Without any evidence of impropriety, trial counsel

cannot be faulted for failing to request that the suppression hearing be re-

opened or for failing to argue that a Brady violation occurred, particularly

when the trial court had made a credibility determination favoring the

Commonwealth witnesses.      Given this assessment, there is no reasonable

probability that the outcome of the proceedings would have been different if

the trial court had been presented with and addressed those particular

arguments.

      The PCRA court also concluded that Appellant was not prejudiced by

trial counsel’s failure to motion for a mistrial based on Agent Staunton’s

testimony. Noting that a mistrial is an “extreme remedy,” the PCRA court

explained:

      because there is no indication that the testimony offered by the
      Commonwealth was false, or that any action by the
      Commonwealth rose to the level of a Brady violation . . .
      [Appellant’s] motion for a mistrial would have likely been denied
      by this court. As [Appellant] failed to demonstrate that she was
      unfairly prejudiced, there is little substance to her claims.

PCRA Opinion, 5/13/14, at 8.

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       Again, we agree with the PCRA court that Appellant has failed to

demonstrate that she was prejudiced by trial counsel’s failure to request a

mistrial based upon the agents’ testimonies. The PCRA court declared that it

would likely have denied the motion for a mistrial; therefore, Appellant

cannot demonstrate that there is a reasonable probability that the outcome

of the proceedings would have been different if trial counsel requested the

mistrial.6

       The PCRA court next examined whether trial counsel was ineffective

when he failed to seek suppression of Appellant’s statements and physical

evidence seized from her vehicle as fruit of the poisonous tree from an illegal

arrest. The PCRA court determined first that this claim was “disingenuous”

because it was previously litigated, noting, “[Appellant] already argued on


____________________________________________


6
    Appellant presents a lengthy argument in her brief suggesting that Agent
Avery’s trial testimony also represents after-discovered evidence requiring
analysis under 42 Pa.C.S. § 9543(a)(2)(vi) (PCRA petitioner must plead and
prove by preponderance of evidence that exculpatory evidence unavailable
at trial would change the outcome at trial if introduced). However, this
claim was not raised in either the PCRA petition or enumerated in Appellant’s
brief as a question presented for review. Thus, we will not consider this a
basis for PCRA relief on appeal. See Commonwealth v. Roney, 79 A.3d
595, 611 (Pa. 2013) (issues waived for failure to present them to PCRA
court); Wirth v. Commonwealth, 95 A.3d 822, 858 (Pa. 2014) (quoting
Commonwealth v. Miller, 424 A.2d 531, 533 (Pa. 1981)) (under clear
language of Pa.R.A.P. 2116(a) no question will be considered unless included
within statement of the issues)).




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appeal that she was subject to an illegal arrest, and this court’s explanation

about the legality of [Appellant’s] arrest was affirmed by the Superior Court.

PCRA Opinion, 5/13/14, at 9 (footnote omitted).             The PCRA court’s

determination in this regard is neither supported by evidence of record nor

free of legal error.

      We have already decided that the PCRA court erred when it described

some of the allegations of trial counsel’s ineffectiveness as previously

litigated because a claim of deficient representation raises a distinct ground

for relief and thus is not precluded by the PCRA’s previous litigation

restriction.    Sepulveda, 55 A.3d at 1136.     Additionally, the PCRA court’s

representation that the legality of Appellant’s arrest was affirmed on appeal

by this Court is inaccurate. Although the panel in the direct appeal affirmed

the trial court in some aspects based upon that court’s reasoning, the

precise issue of the legality of Appellant’s arrest was not a question

presented on appeal. See n.5, infra.

      The PCRA court, however, offered Appellant’s failure to demonstrate

prejudice      as an alternative   reason for   dismissing this allegation of

ineffectiveness:

      Assuming arguendo that [Appellant was] subjected to an illegal
      arrest, the court’s suppression of [Appellant’s] statement and
      items recovered from her vehicle would not have changed the
      outcome of her case. At [Appellant’s] waiver trial, the court
      stated that the trial would have likely resulted in a guilty verdict
      even without [Appellant’s] statement to police.           Similarly,
      suppressing the items found in the Appellant’s purse, which was
      located in her vehicle, would also not have changed the outcome

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J-S12024-15


      of this court’s decision. For one thing, there was sufficient
      evidence in the record to support her conviction even if one did
      not take into consideration items recovered from [Appellant’s]
      car. Since there is not a reasonable probability that the outcome
      of this proceeding would have been different, [Appellant’s] claim
      fails to satisfy the prejudice prong of the effective assistance
      test.

PCRA Opinion, 5/13/14, at 10 (footnote and citation omitted).

      We begin discussion of this issue by commenting that Appellant’s

assertion that she was illegally arrested and that her subsequent consent to

search her vehicle and her confession were poisonous fruit of this illegal

arrest has arguable merit.    Although the trial court credited Agent Avery’s

testimony that Appellant was arrested a “couple of blocks away” from her

house, and mentioned that that police had a warrant to search Appellant’s

house, it concluded that “[t]he Police had probable cause to arrest

[Appellant] because they uncovered illegal prescription pills while executing

a search warrant on her house.” Trial Court Opinion, 6/4/10, at 5, 11.

      The trial court’s conclusion regarding the probable cause for the arrest

is unsupportable. Obviously, the contraband uncovered from the search of

the house could not justify Appellant’s arrest by agents away from the house

who had no knowledge what execution of the search warrant had uncovered.

Thus, the legality of Appellant’s arrest was certainly questionable particularly

in light of recent United States Supreme Court jurisprudence. See Bailey v.

United States, 133 S.Ct. 1031, 1041 (2013) (Supreme Court explicitly

limited the rule established in Michigan v. Summers, 452 U.S. 692 (1981),


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by concluding that “[t]he categorical authority to detain incident to the

execution of a search warrant must be limited to the immediate vicinity of

the premises to be searched.”).

      What remains to be decided is whether the PCRA court correctly

concluded that Appellant was not prejudiced by trial counsel’s failure to

argue for suppression of her statement and the physical evidence seized

from her vehicle because it would have found her guilty even without this

evidence.   After careful consideration, we agree that Appellant cannot

demonstrate that the outcome of the trial would have been different without

this allegedly tainted evidence.      Certainly, the Commonwealth’s case

benefitted from Appellant’s confession that she knew that she had done

wrong and the discovery of pre-recorded currency in Appellant’s purse.

However, the PCRA court informed that neither Appellant’s statement nor

the evidence recovered from the vehicle was essential to the trial court’s

determination of guilt. PCRA Opinion, 5/13/14, at 10.

      Additionally, although not in the context of the legality of the arrest,

the direct appeal Riley panel likewise concluded that Appellant’s statement

to the police was not determinative of her guilt or innocence:

            At trial, the Commonwealth presented evidence that the
      agents conducted surveillance of [Appellant’s] residence, and
      that a confidential informant had engaged in controlled
      purchases of Zanax pills at the residence. The day after a
      controlled purchase of narcotics, agents executed a search
      warrant at [Appellant’s] residence. . . . As a result of the
      execution of the search warrant, agents recovered, inter alia,
      573 Endocet, 539 Vicodin, 173 Darvocet, 60 Zanax and 40

                                    - 22 -
J-S12024-15


      Oxycontin pills, as well as $309 in U.S. currency and documents
      in the name of [Appellant and Appellant’s son]. The majority of
      the pills were discovered next to a Lazy-Boy chair on the first
      floor. Agents found mail/bills at the residence. Agents also
      discovered that [Appellant’s] driver’s license and voter
      registration listed the residence at her address.      Thus, the
      Commonwealth        presented    extensive    evidence   against
      [Appellant], independent of her statement.

Riley, slip op. at 4–5. Thus, the determination of the PCRA court that the

outcome of the trial would not have been different is supported by evidence

of record and is free of legal error.

      Appellant’s fourth allegation of deficient representation involves trial

counsel’s failure to call Rosita Young as a witness at the suppression

hearing.   In order to prevail on a claim that counsel was ineffective for

failing to call a witness, a PCRA petitioner must establish that:     (1) the

witness existed; (2) the witness was available; (3) trial counsel knew or

should have known of the existence of the witness; (4) the witness would

cooperate and testify on the petitioner’s behalf; and (5) that the absence of

the witness’s testimony prejudiced the petitioner.       Commonwealth v.

Hammond, 953 A.2d 544, 556 (Pa. Super. 2008) (citation omitted).

      On this issue, the PCRA court determined that:

      Appellant has failed to meet her burden. In fact, she has not
      remotely met the four-part test. Neither can she show the
      proposed testimony was necessary. It is unlikely Ms. Young’s
      testimony would have changed the result of the Suppression
      Hearing because Judge Djerassi’s Suppression decision was
      largely based on the Appellant’s lack of credibility.
      Consequently, the Appellant has failed to demonstrate that
      prejudice was dispositive.


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J-S12024-15


PCRA Opinion, 5/13/14, at 11 (footnote omitted).

      We agree with the PCRA court that Appellant has failed to meet the

prerequisites for asserting an ineffectiveness claim based upon counsel’s

failure to call a witness. Appellant’s PCRA petition avers only that Ms. Young

would have testified at the suppression hearing that the agents approached

Appellant with guns drawn and that this testimony would have lent

credibility   to   Appellant’s   testimony   which   was   not   believed   by   the

suppression court.      Appellant advances a similar argument on appeal and

asserts additionally that Ms. Young’s testimony would have been relevant to

the voluntariness of Appellant’s actions.       However, there is no submission

that trial counsel knew about Ms. Young at the time of the suppression

hearing and was aware of her availability or the substance of what would be

her testimony. Thus, Appellant has failed to demonstrate that trial counsel

was ineffective for failing to have Ms. Young testify at the suppression

hearing. See Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002)

(undeveloped claims of ineffectiveness do not entitle a petitioner to relief).

      Appellant’s last claim of trial counsel’s ineffectiveness concerns trial

counsel’s failure to ask the court to revisit the issue of the voluntariness of

her statement to police under the Massachusetts rule, a procedure

permitting a criminal defendant to challenge the voluntariness of his

confession both at a suppression hearing and at trial. Commonwealth v.

Motley, 372 A.2d 764, 768 (Pa. 1977); see note 4, infra.


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      The PCRA court dismissed this claim of ineffectiveness reasoning that:

      [I]t is a stretch for the Appellant to suggest that trial counsel
      was ineffective when he did not challenge the voluntariness of
      the Appellant’s statement. During the Appellant’s waiver trial,
      this court considered the voluntariness of her statement to
      police.    However, the court believed her statement was
      voluntary. Trial counsel’s failure to specifically re-raise the
      voluntariness issue did not prejudice the Appellant. This court
      would have likely found the Appellant guilty based on the
      evidence presented by the Commonwealth, apart from the
      voluntariness of her statement.

PCRA Opinion, 5/13/14/ at 12 (footnotes omitted) (emphasis in

original).

      The PCRA court correctly determined that Appellant was not prejudiced

by counsel’s failure to request the trial court to reconsider the voluntariness

of her statement because the fact-finder announced that it would have found

Appellant guilty even if her statement was excluded from evidence.

      Appellant’s remaining arguments—that appellate counsel and PCRA

counsel were ineffective for failing to raise a sufficiency of the evidence

challenge, and an issue of merger of the offenses, and all counsels’

ineffectiveness for failing to raise and preserve issues concerning Appellant’s

sentencing—are waived because they were not included in her PCRA

petition.    See Commonwealth v. Reid, 99 A.3d 470, 494 (Pa. 2014)

(claims not raised in PCRA petition cannot be raised for the first time on

appeal).     Appellant attempts to avoid waiver by asserting that she is

permitted to raise new grounds for appeal in her brief because the PCRA

court did not order her to file a Pa.R.A.P. 1925(b) statement. However, the


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PCRA court’s discretionary decision in this regard cannot defeat waiver. See

Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (regardless of

reasons for Appellant’s belated raising of issue, claim not raised in PCRA
                                      7
petition is indisputably waived).

       For these reasons, the PCRA court’s order denying collateral relief is

affirmed. Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2015




____________________________________________


7
    Additionally, PCRA counsel’s ineffectiveness cannot be raised on appeal
from denial of PCRA relief. See Commonwealth v. Ford, 44 A.3d 1190,
1201–1202 (Pa. Super. 2012) (collecting cases and clarifying that all claims
of PCRA counsel’s ineffectiveness may not be raised for first time on appeal).




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