J-S37041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
            v.                            :
                                          :
DAVID R. LAMBERT,                         :
                                          :
                  Appellant               :           No. 1835 MDA 2016

           Appeal from the PCRA Order entered October 5, 2016
            in the Court of Common Pleas of Lancaster County,
            Criminal Division, No(s): CP-36-CR-0000928-2010

BEFORE: STABILE, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 31, 2017

      David R. Lambert (“Lambert”) appeals from the Order denying his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court set forth the relevant factual and procedural history in

its Opinion, which we adopt for the purpose of this appeal. See PCRA Court

Opinion, 10/5/16, at 1-9.

      Following an evidentiary hearing, the PCRA court denied Lambert’s

PCRA Petition. Lambert filed a timely Notice of Appeal and a court-ordered

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

      On appeal, Lambert raises the following questions for our review:

      I.    Whether the PCRA court erred when it determined
            [Lambert’s] appellate counsel was not ineffective for failing
            to challenge the court’s denial of suppression related to
            [Lambert’s] second phone number, 267-339-[****]?
            Specifically, whether the court erred, as a matter of law,
            when it found sufficient probable cause existed for
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            authorization of the electronic wiretap and considered
            evidence beyond the wiretap application’s four corners in
            fashioning the findings of probable cause?

      II.   Whether the PCRA court erred, as a matter of law, when it
            determined [Lambert’s] Brady[ v. Maryland, 373 U.S. 83
            (1963)] claim lacked merit?        Specifically, whether the
            court erroneously concluded that the Commonwealth
            hadn’t definitively withheld Justin Judd’s [(“Judd”)] proffer
            letter/agreement; the evidence was cumulative and not
            impeaching; and that the impact of the withheld evidence
            would not have resulted in a different result at [Lambert’s]
            trial, despite evidence established to the contrary?

Brief for Appellant at x (capitalization omitted).

            Our standard of review of the denial of a PCRA petition is
      limited to examining whether the evidence of record supports
      the [PCRA] court’s determination and whether its decision is free
      of legal error. This Court grants great deference to the findings
      of the PCRA court if the record contains any support for those
      findings. We give no such deference, however, to the [PCRA]
      court’s legal conclusions.

Commonwealth v. Secreti, 134 A.3d 77, 79-80 (Pa. Super. 2016)

(citations omitted).

      In his first claim, Lambert contends that appellate counsel was

ineffective for failing to challenge the trial court’s denial of the suppression

of evidence derived from a wiretap of the second phone number, which was

not registered to him.    Brief for Appellant at 26, 29, 34.   Lambert argues

that there was no probable cause to evidence criminal conduct relating to

the second phone number contained within the four corners of the

Application for wiretap intercepts. Id. at 37, 40. Lambert asserts that the

Commonwealth attempted to lump the representations from the first phone



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number, which was supported by probable cause, to support a wiretap

intercept on the second phone number. Id. at 33-34, 35-36, 37, 40; see

also id. at 37, 39-40 (arguing that the existence of probable cause on the

first phone number does not result in probable cause on the second phone

number). Lambert claims that while there were calls between the first and

second phone numbers, no transactions were completed through the second

phone number, and there was no evidence that Lambert was using the

second phone number.           Id. at 34-35; see also id. at 34 (noting that

“[a]ttributing   calls   to   [Lambert]   on   both   phones   when   the   phones

communicated with each other would be illogical and unreasonable to use as

a basis for probable cause[.]”) (emphasis omitted). Lambert argues that the

Commonwealth could have used a pen register on the second phone number

as an investigative tool to obtain additional data and information. Id. at 36;

see also id. at 35 (wherein Lambert argues that by obtaining data from the

first phone, the Commonwealth could have ascertained who was speaking on

the second phone number). Lambert also points out that the wiretap was

the first step in the investigation of the second phone number. Id. at 32,

33, 35. Furthermore, Lambert contends that the PCRA court’s reliance on

Agent David Carolina’s testimony from the suppression hearing, in rendering

its decision, went beyond the four corners of the Application. Id. at 40-41.

Lambert additionally claims that there was no reasonable basis for appellate

counsel’s inaction, and that he was prejudiced by the inaction, as the bulk of



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the Commonwealth’s case involved evidence from the second phone

number. Id. at 41-44.

        To succeed on an ineffective assistance of counsel claim, Lambert

must demonstrate that

        (1) the underlying claim has arguable merit; (2) no reasonable
        basis existed for counsel’s actions or failure to act; and (3) the
        petitioner suffered prejudice as a result of counsel’s error such
        that there is a reasonable probability that the result of the
        proceeding would have been different absent such error.

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014).               “A failure to

satisfy any prong of the ineffectiveness test requires rejection of the claim.”

Commonwealth v. Daniels, 104 A.3d 267, 281 (Pa. 2014).               Counsel is

presumed to be effective, and the burden is on the appellant to prove

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

        The PCRA court set forth the relevant law, addressed Lambert’s first

claim    and   determined that    it   is   without   merit.   See PCRA Court




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Opinion, 10/5/16, at 12-18, 18-21, 22.1 We adopt the sound reasoning of

the PCRA court for the purposes of this appeal, and affirm on this basis.

See id.2

      In his second claim, Lambert contends that the PCRA court erred in

determining his Brady claim was without merit. Brief for Appellant at 44,

58.   Lambert argues that the Commonwealth failed to inform him of a

meeting between Judd, a co-conspirator in the corrupt organization, and the

Commonwealth, which resulted in a letter that indicated that any statements


1
  We decline to adopt those portions of the PCRA court Opinion that cite to
testimony presented at the suppression hearing, see PCRA Court Opinion,
10/5/16, at 18, 21-22, because Lambert alleges that counsel was ineffective
for failing to challenge the lack of probable cause supporting the Application
as to the second phone number. It is well-settled that “the issuing authority
may not consider evidence outside the affidavit in making the probable
cause determination, and the suppression court, in reviewing this
determination, may only consider the affidavit.”          Commonwealth v.
James, 69 A.3d 180, 187 (Pa. 2013). But see id. at 190 (stating that
“when a fact in an affidavit is specifically challenged (as opposed to a
generic, global challenge to the affidavit’s sufficiency), the Commonwealth
must come forward with evidence elucidating the validity of the fact in
question.”).     However, the PCRA court’s mere inclusion of testimony
presented at the suppression hearing in its Opinion, which corroborates
information in the Application, does not grant Lambert relief. In point of
fact, the PCRA court specifically found, and our review confirms, that the
Application was supported by probable cause. See, e.g., PCRA Court
Opinion, 10/5/16, at 16-17 n.18, 22.
2
  We also note that suppression is not an available remedy for an alleged
failure to satisfy the “normal investigative procedures” requirement of 18
Pa.C.S.A. § 5710(a)(3). See Commonwealth v. Steward, 918 A.2d 758,
760 (Pa. Super. 2007); Commonwealth v. Donahue, 630 A.2d 1238, 1249
(Pa. Super. 1993). Therefore, to the extent that Lambert claims that his
counsel rendered ineffective assistance, by failing to challenge the trial
court’s determination that section 5710(a)(3) was satisfied, his claim lacks
merit for that reason as well.


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made by Judd at the meeting would not be used against Judd. Id. at 44,

46-47, 50-51. Lambert further argues that without this evidence, he could

not confirm whether Judd’s disclosures in the meeting were consistent with

his trial testimony or exculpatory for Lambert. Id. at 51-52; see also id.

at 48, 50 (wherein Lambert claims that this evidence would have changed

his counsel’s cross-examination of Judd at trial, and Judd would have

testified differently if the evidence had been disclosed).    Lambert asserts

that the Commonwealth withheld the evidence until March 2015, nearly four

years after he was convicted of the crimes.      Id. at 47, 48-49.    Lambert

claims that Judd’s letter was “non-cumulative impeachment evidence

affecting the credibility of the only un-charged co-conspirator who testified

against [Lambert] at trial.”   Id. at 53; see also id. at 54-58 (wherein

Lambert argues that Judd’s credibility was determinative of Lambert’s guilt

as it would have put the remaining evidence in a different light for the jury).

Lambert seeks a new trial based upon the Brady violation. Id. at 58.

      The PCRA court set forth the relevant law, addressed Lambert’s second

claim, and determined that it is without merit.     See PCRA Court Opinion,

10/5/16, at 22-31.3 We adopt the sound reasoning of the PCRA court for the

purposes of this appeal, and affirm on this basis. See id.


3
  “We recognize that decisions of the Court of Common Pleas are not binding
precedent; however, they may be considered for their persuasive authority.”
Commonwealth v. Anderson, 40 A.3d 1245, 1249 (Pa. Super. 2012)
(citation omitted).



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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/31/2017




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