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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

TYRELL TAYLOR HINES

                            Appellant                 No. 2733 EDA 2015


                 Appeal from the PCRA Order August 19, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000022-2013


BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 12, 2016

        Tyrell Taylor Hines appeals from the order denying his petition filed

pursuant to the Post Conviction Relief Act (PCRA), 1 entered in the Court of

Common Pleas of Lehigh County. Upon review, we affirm.

        In his direct appeal from his judgment of sentence, this Court

summarized the facts underlying his conviction as follows:

        On October 24, 2012, members of the Allentown Police
        Department executed a search warrant at Hines’ residence,
        which he shared with his brother. The search warrant permitted
        a search for items related to the distribution of controlled
        substances, including firearms and other weapons. When the
        officers entered the residence, they encountered Hines and his
        three adolescent daughters in the living room. Detective Jack
        Gill removed Hines to the kitchen where he explained the
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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        warrant to him. Hines immediately expressed his willingness to
        cooperate with the officers. As the search proceeded, two
        handguns were recovered from two separate bedrooms, along
        with various types of ammunition.           The detectives then
        questioned Hines about a specific firearm, a .9 caliber Baretta.
        Hines initially told the detectives that the Baretta was in New
        Jersey. When the police told Hines that they would transport
        him to New Jersey so that he could show them where it was,
        Hines changed his story. After procuring a promise that he
        would be allowed to remain in the house overnight with his
        daughters, Hines told the police that the Baretta was in his
        vehicle, which was parked in the driveway. After Hines executed
        a form consenting to the search of his car, the police recovered
        the Baretta from a speaker box in the trunk of the car.

                                           ...

        Hines was subsequently arrested.           The initial criminal
        information filed by the Commonwealth charged Hines with one
        count each of persons not to possess firearms, firearms not to be
        carried without a license, receiving stolen property, and
        possession of drug paraphernalia. The information was later
        amended to provide that Hines was being charged with three
        counts of persons not to possess firearms.

Commonwealth v. Hines, 3196 EDA 2013, at 1-2 (Pa. Super. 2014)

(internal citations omitted).

        On March 15, 2013, Hines filed an omnibus pre-trial motion including a

motion to suppress physical evidence (alleging the search warrant lacked

probable cause) and statements he gave to the police (claiming the

statements were involuntary and he was not Mirandized2).              After an

evidentiary hearing was held regarding these motions, on April 18, 2013, the

motion to suppress was denied. On September 10, 2013, after a jury trial,

____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436 (1966).



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Hines was found guilty on all three counts of persons not to possess, use,

manufacture, control, sell or transfer firearms.3 On October 17, 2013, the

court sentenced Hines to an aggregate sentence of 8 to 20 years’

incarceration.

        Following a timely direct appeal, this Court affirmed Hines’ judgment

of sentence on August 5, 2014. On May 5, 2015, Hines filed a pro se PCRA

petition in the Court of Common Pleas of Lehigh County. Appointed counsel

filed an amended PCRA petition on June 12, 2015. On July 20, 2015, the

PCRA court held an evidentiary hearing. Subsequently, on August 19, 2015,

Hines’ petition was denied.

        Hines filed a timely notice of appeal and court-ordered concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

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

        1.    Did the trial court err in finding that counsel was not
        ineffective for the following reasons:

           A. Failing to pursue the validity of the search warrant for
           lack of probable cause since it did not indicate the veracity
           of the confidential informant. This issue was raised in a
           pretrial suppression motion which was denied by the trial
           court, and never pursued on appeal to the Superior Court;
           [and]

           B. Failing to pursue the denial of the motion to suppress
           the statements as being involuntary and failure of the
           police to Mirandize the defendant. This issue was raised
           in a pretrial suppression motion which was denied by the

____________________________________________


3
    18 Pa.C.S. § 6105(a)(1).



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            trial court, and never pursued on appeal to the Superior
            Court.

Brief for the Appellant, at 4.

      When considering an order disposing of a petition under the PCRA, we

review it

      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of the record. We will not disturb a PCRA
      court’s ruling if it is supported by evidence of [the] record and is
      free of legal error. Further, we afford great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record.

Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en

banc) (internal citations and quotations omitted).

      To be eligible under the PCRA for relief on an ineffectiveness of counsel

claim, petitioner must prove by a preponderance of the evidence that the

conviction resulted from “ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S. § 9543(2)(ii). To prove this claim, the petitioner must

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

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

resulted from counsel’s act or failure to act.” Stewart, 84 A.3d at 706.

      Arguable merit exists when the factual statements are accurate and

“could establish cause for relief.” Id. at 707. To prove counsel’s strategy

lacked an objective reasonable basis, it must be proven that the alternative



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not chosen offered a potential for success substantially greater than the

strategy pursued.      Commonwealth v. Howard, 719 A.2d 233, 237 (Pa.

1998). “Prejudice in the context of ineffective assistance of counsel means

demonstrating that there is a reasonable probability that, but for counsel’s

error,    the   outcome    of   the   proceeding   would   have   been   different.”

Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). The law presumes

that counsel was effective. Id.

         The thrust of Hines’ issue on appeal is that his trial counsel was

ineffective for not appealing the trial court’s denial of his motion to suppress.

Specifically, Hines contends that Detective Jack Gill was not familiar with the

confidential informant in the case and could not attest to his veracity;

therefore, the search warrant lacked probable cause.

         When evaluating a trial court’s refusal to suppress evidence, the

appellate court must determine:

         [W]hether the record supports the trial court’s factual findings
         and whether the legal conclusions drawn therefrom are free from
         error. Our scope of review is limited; we may consider only the
         evidence of the prosecution and so much of the evidence for the
         defense as remains uncontradicted when read in the context of
         the record as a whole. Where the record supports the findings of
         the suppression court, we are bound by those facts and may
         reverse only if the court erred in reaching its legal conclusions
         based upon the facts.

Commonwealth v. Manley, 985 A.2d 256, 263 (Pa. Super. 2009)

(citations omitted).

         Article I, Section 8 of the Pennsylvania Constitution protects citizens of

the Commonwealth against unreasonable searches and seizures, and

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requires that a warrant: (1) describe the place to be searched and items to

be seized with specificity; and (2) be supported by probable cause to believe

that the items sought will provide evidence of a crime. Commonwealth v.

Waltson, 724 A.2d 289, 292 (Pa. 1998).          Pennsylvania has adopted the

“totality of the circumstances” test expounded in Illinois v. Gates, 462 U.S.

213 (1983), which tasks the issuing authority with making “probable cause

determinations [] based on [a] common sense non-technical analysis.”

Commonwealth v. Gray, 503 A.2d 921, 925 (Pa. 1985).               The reviewing

court affords the magistrate judge deference, and must determine if the

magistrate had a substantial basis for concluding that probable cause

existed. Id.

      Hines argues that because Detective Gill was not familiar with the

confidential informant that provided information, probable cause did not

exist for a search warrant. However, as our Supreme Court has held:

      [A] determination of probable cause based upon information
      received from a confidential informant depends upon the
      informant’s reliability and basis of knowledge viewed in a
      common sense, non-technical manner. Thus, an informant’s tip
      may constitute probable cause where police independently
      corroborate the tip . . . or where the informant himself
      participated in the criminal activity. The corroboration by police
      of significant details disclosed by the informant in the affidavit of
      probable cause meets the Gates threshold.

Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011) (internal

citations omitted).

      Instantly, Detective Gill submitted an application for a search warrant

and an affidavit stating probable cause for the warrant. Hines argues that

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because the confidential informant was an informant of another Detective,

Detective Gill could not rely on him/her for probable cause. This argument

that the search warrant lacked probable cause is meritless.        The police

independently verified the confidential informant’s information through a

controlled buy where the informant was searched for weapons, money, and

controlled substances before and after entering Hines’ house. The informant

returned directly to the detectives after leaving the house with heroin.

Moreover, while the informant was in the house, police observed another

vehicle pull up and multiple individuals enter the house. Upon being stopped

later, one of the passengers was found with heroin and pills and stated they

had been purchased at the house.

      When viewed in a common sense, non-technical              manner, the

magistrate judge had a substantial basis for concluding probable cause

existed for a search warrant based upon the confidential informant’s

participation in the controlled buy and later police corroboration.     Gray,

supra; Clark, supra.

      Hines next argues that trial counsel was ineffective for not appealing

the trial court’s denial of his motion to suppress regarding his statements to

police.   He claims that the statements were involuntary and he was not

provided his Miranda warnings. At the motion to suppress hearing, Hines

testified that he was not read his Miranda rights, although he signed a

Lehigh    County   Detectives/Drug   Task   Force   Miranda   Warnings    and




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Statement Form on October 24, 2012, and Detective Gill testified that he

provided Hines his Miranda rights.

      A   court   must   determine    if   inculpatory   statements   were   made

voluntarily to determine if they should be suppressed. Commonwealth v.

Nester, 709 A.2d 879, 882 (Pa. 1998). When reviewing the voluntariness

of inculpatory statements, the court must examine the “totality of the

circumstances.”    Commonwealth v. Templin, 795 A.2d 959, 961 (Pa.

2002). This determination requires an assessment of: “[1] the duration and

means of the interrogation; [2] the physical and psychological state of the

accused; [3] the conditions attendant to the detention; [4] the attitude of

the interrogator; and [5] any and all other factors that could drain a person’s

ability to withstand coercion.” Commonwealth v. Roberts, 969 A.2d 594,

599 (Pa. Super. 2009) (quoting Nester, 709 A.2d at 882).               Moreover,

regarding Miranda rights, the most significant factor is that the defendant

was fully aware of and expressly waived those rights before any substantive

questioning began. Templin, 795 A.2d at 966.

      Here, Detective Gill testified that after entering the house, he

verbalized the Miranda warnings to Hines. Detective Frank O’Hara was also

present and corroborated that Detective Gill Mirandized Hines. According

to Detectives Gill and O’Hara, after being provided his Miranda rights, Hines

verbally waived those rights.        Moreover, not only did Hines waive his

Miranda rights, he knowingly expressed a willingness to be a confidential

informant and cooperate with the detectives.         He provided the detectives

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with five or six names of individuals whom he had drug-related relationships

with (whether it was selling them drugs or doing drugs with them).

Additionally, Hines signed a Miranda waiver form after being informed what

it was, further evincing his knowing and intelligent waiver of his rights.

      We also note that Hines was interviewed in his basement by detectives

in plain clothes, which is less psychologically draining than an interview at

the station-house by officers in uniform.    Hines specifically requested that

the interview occur in his basement, so that his daughters would not be able

to hear the interview, and the detectives agreed.         The interview lasted

approximately one hour, which is not unduly long. See Commonwealth v.

Taylor, 431 A.2d 915, 918 (Pa. 1981) (holding interrogation lasting slightly

over an hour did not psychologically coerce defendant’s confession). Hines

stated that he understood the police officers and his Miranda rights, and at

no point did Hines ask for counsel or request that the interview stop.

Accordingly, the totality of the circumstances demonstrates that Hines’

confession was voluntary, Nester, supra, and the court’s denial of the

motion to suppress is supported by the record. Manley, supra.

      Based upon the foregoing, we conclude that Hines’ underlying claims

are meritless. In order to succeed on a claim that counsel was ineffective,

the underlying claims must have arguable merit. Stewart, 84 A.3d at 706.

Moreover, ”[t]rial counsel cannot be deemed ineffective for failing to raise a

meritless claim.”   Commonwealth v. Harris, 852 A.2d 1168, 1173 (Pa.

2004) (citing Commonwealth v. Smith, 650 A.2d 863, 866 (Pa. 1994)).

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Accordingly, the trial court did not err in holding that trial counsel was not

ineffective.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2016




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