J-S60036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
    DUANE COOLEY, SR.                           :
                                                :
                      Appellant                 :   No. 386 WDA 2017

                 Appeal from the PCRA Order February 17, 2017
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001836-2014


BEFORE:      OLSON, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED SEPTEMBER 29, 2017

        Appellant Duane Cooley, Sr. appeals from the order entered by the

Court of Common Pleas of Erie County denying Appellant’s petition pursuant

to the Post Conviction Relief Act (“PCRA”)1 without a hearing.             Appellant

raises several claims of ineffective assistance of counsel.          We vacate the

PCRA court’s order and remand for an evidentiary hearing on the petition.

        On May 19, 2014, Erie County detectives were conducting an

undercover narcotics investigation targeting an individual named Derrys

Sanders, a suspected drug dealer.              During this surveillance, the officers

observed a 2004 Mercedes SUV enter the parking lot of the Rack N Roll




____________________________________________


1   42 Pa.C.S. §§ 9541-9546.


____________________________________
*     Former Justice specially assigned to the Superior Court.
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restaurant and believed Sanders was a passenger in this SUV.        Additional

officers were following the SUV in marked patrol vehicles.

      The SUV immediately parked in the lot and Sanders exited the vehicle

from one of the rear passenger doors. When Sanders saw the marked police

vehicles pull into the parking lot, he dipped down behind another car and

threw an object under the car. Officers placed Sanders under arrest once

they discovered that Sanders had attempted to discard an ounce of cocaine.

Officers subsequently ordered the occupants of the SUV, Brandi Carlgren and

Appellant, to exit the vehicle. Carlgren was the driver and owner of the SUV

and Appellant was the front seat passenger. Thereafter, the officers frisked

Carlgren and Appellant and discovered Appellant was in possession of a

digital scale. The officers took Carlgren and Appellant into custody.

      At the police station, Appellant admitted to the officers that he had

several ounces of cocaine and a .40 caliber firearm at Calgren’s residence,

where Appellant was staying. After the officers obtained Calgren’s consent

to search her home, the officers recovered eighty-nine grams of cocaine

where Appellant had told them it would be located along with drug

paraphernalia consistent with packaging material for distribution of cocaine

and the weapon Appellant had described to police.

      On August 15, 2014, Appellant was charged with possession of a

controlled substance with intent to deliver (PWID), intentional possession of

a controlled substance, possession of drug paraphernalia, receiving stolen

property, and persons not to possess a firearm. On June 17, 2014, the day

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before trial, Appellant filed a motion to suppress the evidence recovered

from the search of his residence. On June 18, 2014, Appellant filed a motion

to allow his suppression motion to be filed nunc pro tunc.2         There is no

indication in the record that the trial court ruled on either motion.

       After Appellant proceeded to trial, a jury convicted Appellant of the

aforementioned charges.          On July 29, 2015, the trial court imposed an

aggregate sentence of 13½ to 27 years’ imprisonment. On the same day,

Appellant filed a post-sentence motion, which the trial court subsequently

denied.    On August 21, 2015, Appellant filed a timely appeal.         On May 4,

2016, this Court affirmed the judgment of sentence.

       On August 8, 2016, Appellant filed the instant, timely PCRA petition

with the assistance of counsel.          On November 11, 2016, the PCRA court

issued an order and opinion notifying Appellant of its intent to dismiss his

petition without a hearing pursuant to Pa.R.Crim.P. 907. On December 16,

2016, Appellant submitted a filing to oppose this action.      On February 17,

2017, the PCRA court dismissed Appellant’s petition.        On March 2, 2017,

Appellant filed this appeal.

       Appellant raises the following issues for our review on appeal:
____________________________________________


2 Our rules of criminal procedure provide that an “omnibus pretrial motion
for relief shall be filed and served within 30 days after arraignment, unless
opportunity therefor did not exist, or the defendant or defense attorney, or
the attorney for the Commonwealth, was not aware of the grounds for the
motion, or unless the time for filing has been extended by the court for
cause shown.” Pa.R.Crim.P. 579(A).



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      1. Did the trial court abuse its discretion when it denied the PCRA
         petition without a hearing?

      2. Was trial counsel ineffective for not filing a suppression motion
         challenging a Terry patdown of [Appellant] when the officer
         was unable to point to particular facts from which he
         reasonably inferred that the individual was armed and
         dangerous?

      3. Was trial counsel ineffective for not filing a motion to sever the
         charge of persons not to possess guns [from] the drug
         charges?

      4. Was trial counsel ineffective when he did not request a
         cautionary charge to the jury after [Appellant] testified that he
         was convicted for possession with intent to deliver drugs and
         that he had been a drug dealer in the past?

Appellant’s Brief, at 3 (reordered for ease of review).

      In reviewing the lower court’s decision to deny Appellant’s PCRA

petition, we examine whether the PCRA court's determination “is supported

by the record and free of legal error.” Commonwealth v. Mitchell, --- Pa.

---, 141 A.3d 1277, 1283–84 (2016). We review the PCRA court’s denial of

Appellant’s petition without a hearing under an abuse of discretion standard.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).

      [T]he right to an evidentiary hearing on a post-conviction
      petition is not absolute. It is within the PCRA court's discretion
      to decline to hold a hearing if the petitioner's claim is patently
      frivolous and has no support either in the record or other
      evidence. It is the responsibility of the reviewing court on
      appeal to examine each issue raised in the PCRA petition in light
      of the record certified before it in order to determine if the PCRA
      court erred in its determination that there were no genuine
      issues of material fact in controversy and in denying relief
      without conducting an evidentiary hearing.



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Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (internal

citations omitted).

      In order to be eligible for PCRA relief, the petitioner must prove by a

preponderance of the evidence that his conviction or sentence resulted from

one or more of the enumerated circumstances found in 42 Pa.C.S. §

9543(a)(2), which includes the ineffective assistance of counsel.                 “It is well-

established    that    counsel    is    presumed      effective,   and    to   rebut     that

presumption,     the    PCRA      petitioner    must    demonstrate       that     counsel's

performance was deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing

Strickland v. Washington, 466 U.S. 688, 687-91 (1984)).

      To prevail on an ineffectiveness claim, the petitioner has the burden to

prove that “(1) the underlying substantive claim has arguable merit; (2)

counsel whose effectiveness is being challenged did not have a reasonable

basis for his or her actions or failure to act; and (3) the petitioner suffered

prejudice as a result of counsel's deficient performance.” Commonwealth

v.   Sneed,    616     Pa.   1,   17,   45     A.3d    1096,   1106      (2012)     (quoting

Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001)). The

failure to satisfy any one of the three prongs will cause the entire claim to

fail. Sneed, 616 Pa. at 18, 45 A.3d at 1106 (citation omitted).

      First, Appellant claims trial counsel was ineffective in failing to file a

timely suppression motion to challenge the legality of the search of his

person. As Appellant concedes that he was riding in a vehicle with Sanders,

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who was arrested for the possession of cocaine, Appellant does not contest

the officers’ authority to subsequently order him and Calgren to exit the SUV

upon Sanders’ arrest. Instead, Appellant contends that the officers had no

authority to arrest or frisk him as they had no reason to believe he was

armed and dangerous.

     While the PCRA court reasoned that Appellant’s ineffectiveness claim

had no arguable merit, the PCRA court’s opinion provides inadequate

discussion of Appellant’s claims, which the court dismissed without an

evidentiary hearing.

            To enable appellate review, PCRA courts are required to
     provide “a legally robust discussion, complete with clear findings
     of fact where required.” Commonwealth v. Dennis, 597 Pa.
     159, 950 A.2d 945, 957 (2008); see also Commonwealth v.
     Craig Williams, 566 Pa. 553, 782 A.2d 517, 522–23 (2001);
     Commonwealth v. Roy Williams, 557 Pa. 207, 732 A.2d
     1167, 1181 (1999) (remanding and directing the PCRA court to
     render “findings of fact and conclusions of law” in support of its
     disposition of issues turning on credibility). A fact-finding court
     should support its holding with sufficient explanations of the
     facts and law to facilitate appellate review. Commonwealth v.
     Weiss, 604 Pa. 573, 986 A.2d 808, 816 n. 4 (2009) (remanding
     where the PCRA court failed to address the “salient inquiry”);
     Commonwealth v. Beasley, 600 Pa. 458, 967 A.2d 376, 391
     (2009) (remanding to permit the PCRA court to prepare an
     opinion addressing all claims raised in the amended post-
     conviction petition, and expressly resolve areas of material,
     factual controversy and material credibility disputes via
     numbered factual findings); Commonwealth v. Peoples, 599
     Pa. 254, 961 A.2d 109, 110 (2008) (remanding and directing the
     PCRA court to address all properly presented claims). Where a
     petitioner has presented a claim to the PCRA court and that
     court has not addressed it, a remand is appropriate where the
     claim cannot be resolved on the record.



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Commonwealth v. Smith, 609 Pa. 605, 624–25, 17 A.3d 873, 884 (2011).

“[P]articularly   in     close   cases,   a   developed   post-conviction   record

accompanied by specific factual findings and legal conclusions is an essential

tool necessary to sharpen the issues.” Commonwealth v. Gibson, 597 Pa.

402, 422, 951 A.2d 1110, 1121–22 (2008).

      First, the PCRA court found the officers were permitted to pat down

Appellant as a search incident to arrest, but failed to delineate the grounds

that gave the officers probable cause to arrest Appellant before the search

was conducted.         Second, in the alternative, the PCRA court deemed the

search to be a protective frisk during an investigative detention, which is

justified when police possess a “reasonable belief that criminal activity is

afoot, and that the suspect may be armed and dangerous.”              Trial Court

Opinion, 3/10/17, at 3 (citing Commonwealth v. Mesa, 683 A.2d 643, 646

(Pa.Super. 1996)). However, the PCRA court did not discuss or make any

finding with respect to whether it was reasonable to believe that Appellant

was armed and dangerous.

      As the PCRA court failed to support its conclusion with specific factual

findings and legal conclusions to facilitate appellate review, it is necessary to

remand for the PCRA court to provide a more through explanation of this

holding as this claim cannot be resolved on the record before this Court.

      As Appellant’s remaining claims are related, we will address them

together. In his second claim, Appellant argues that trial counsel was

ineffective in failing to request that the trial court sever the charge of

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Persons Not to Possess a Firearm from the remaining drug charges that did

not require proof of a prior conviction. In his third claim, Appellant contends

trial counsel was ineffective in failing to request a limiting instruction after

Appellant admitted on cross-examination that he had a prior PWID

conviction.     The following exchange occurred when the prosecutor was

questioning Appellant on the statement he gave to police once he was taken

into custody:

      [Prosecutor:] Did you tell [Lieutenant Nolan] that there was
      about three ounces of cocaine in that house?

      [Appellant:] I told him there were drugs in the house, but not
      specific or the weight.

      [Prosecutor:] You didn’t tell him it was three ounces?

      [Appellant:] I didn’t know if it was three ounces, five ounces, or
      ten. I didn’t know.

      [Prosecutor:] You didn’t tell him that you sold drugs?

      [Appellant:] I have a record and I’m pretty sure you looked at
      my past history. I was convicted in 2006 for possession with
      intent. I made mistakes in my life. I’m not lying about that.
      I’m not perfect, but I’m trying to change my life. I’ve been
      working for three years now, and the time I was incarcerated I
      almost lost my job. I’m good with my employer, so when I was
      released he gave me my job back.

      [Prosecutor:] But you told us a few minutes ago that you’re not
      a drug dealer.

      [Appellant:] No. I have made mistakes before.

      [Prosecutor:] And you indicate that you were a drug dealer in
      the past?



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      [Appellant:] I have dealt before.

Notes of Testimony (N.T.), Trial, 6/19/15, at 89-90. Appellant asserts that

he was unaware that his prior conviction would have been inadmissible and

alleges that counsel never told him to avoid discussing his criminal history.

Appellant argues that without a limiting instruction, the jury likely inferred

that proof of Appellant’s prior conviction for PWID was substantive evidence

of his guilt on the PWID charges in this case.

      Moreover, Appellant points out that his prior PWID conviction was

highlighted when the Commonwealth emphasized to the jury in closing

argument that the arresting officers “knew that [Appellant] was a convicted

drug dealer in the past, and [Appellant] brought that up on his own.” N.T.

Trial, 6/19/15, at 101. Further, the trial court reiterated to the jury in its

charge that the parties had stipulated, and Appellant had admitted to his

prior conviction for possessing a controlled substance with intent to deliver,

which rendered Appellant ineligible to possess a firearm.          N.T. Trial,

6/19/15, at 119-120.

      The PCRA court found counsel was not ineffective for failing to request

that the Persons Not to Possess charge be severed or for failing to seek a

curative instruction to advise the jury on the limited purpose for which

Appellant’s prior PWID charge could be considered. Without providing any

supporting analysis for either conclusion, the PCRA court found Appellant’s

“claims fall far short of showing [counsel’s] trial strategy was so lacking in




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reason that, in light of all the alternatives available, no competent attorney

would have chosen it.” PCRA Court Opinion, 11/29/16, at 5.

      However, as the PCRA court chose to deny Appellant’s ineffectiveness

claims without a hearing pursuant to Pa.R.Crim.P. 907, the record does not

contain any evidence to analyze whether trial counsel’s decisions not to seek

a severance or request a limiting instruction were based on strategic or

tactical concerns.    Without an evidentiary hearing, Appellant did not have

the opportunity to question trial counsel as to the reasonableness of his

actions and trial counsel had no chance to explain his motives. As a result,

there is a genuine factual dispute on whether counsel’s decisions not to

request a severance or a limiting instruction were founded upon reasonable

strategic concerns.

      Moreover, the PCRA court’s decision to dismiss Appellant’s petition

without a hearing cannot be justified on the grounds that Appellant’s claims

are patently frivolous.   While not directly analogous to Appellant’s specific

ineffectiveness claim that counsel was ineffective in failing to seek a

severance of the weapons charge, this Court has held that a trial court

should grant a defendant’s motion to sever a charge under 18 Pa.C.S.A. §

6105, which prohibits a former convict from owning a firearm, from other

charges that do not require proof of a conviction, unless evidence of the

prior criminal conduct is otherwise admissible – for example, to prove intent,

identity, motive, or a common scheme.         Commonwealth v. Jones, 858

A.2d 1198, 1208 (Pa.Super. 2004).

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      In the same manner, while the PCRA court refused to hold a hearing

on Appellant’s claim that trial counsel was ineffective in failing to request a

limiting instruction regarding his prior PWID conviction, it is well established

that “[e]vidence of a defendant's prior bad acts is generally inadmissible,

and where such evidence is admitted, a defendant is entitled to a jury

instruction that the evidence is admissible only for a limited purpose.”

Commonwealth v. Hutchinson, 571 Pa. 45, 54, 811 A.2d 556, 561

(2002).   Thus, the PCRA court erred in determining that there were no

genuine issues of material fact in controversy.

      Accordingly, for the foregoing reasons, we find the PCRA court abused

its discretion in denying Appellant’s petition without a hearing.

      Order vacated. Remanded for an evidentiary hearing consistent with

this decision. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2017




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