J-S29006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    SHAWN MOSES,

                             Appellant                 No. 1711 EDA 2018


                Appeal from the PCRA Order Entered May 1, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003521-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                            FILED JULY 11, 2019

       Appellant, Shawn Moses, appeals pro se from the post-conviction court’s

May 1, 2018 order dismissing his first petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

       Following a jury trial in June of 2015, Appellant was convicted of carrying

a firearm without a license, 18 Pa.C.S. § 6106, and carrying a firearm in public

in Philadelphia, 18 Pa.C.S. § 6108.1           On December 4, 2015, the court

sentenced Appellant to an aggregate term of 3 to 6 years’ incarceration,

followed by 4 years’ probation. He filed a timely notice of appeal and, after

this Court affirmed his judgment of sentence, our Supreme Court denied his

subsequent petition for allowance of appeal. Commonwealth v. Moses, 159

____________________________________________


1 Appellant was acquitted of possession with intent to deliver narcotics, 35
P.S. § 780-113(a)(30).
J-S29006-19



A.3d 590 (Pa. Super. 2016) (unpublished memorandum), appeal denied, 169

A.3d 560 (Pa. 2017).

       On December 20, 2017, Appellant filed a timely, pro se PCRA petition.

Therein, he claimed, inter alia, that he was unlawfully arrested, and that his

trial counsel acted ineffectively by not filing a pretrial motion to suppress the

evidence seized during the search of his person incident to that illegal arrest.

PCRA counsel was appointed, but instead of filing an amended petition on

Appellant’s behalf, counsel filed a Turner/Finley2 ‘no-merit’ letter and a

petition to withdraw from representing Appellant. On March 29, 2018, the

PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s

petition without a hearing. Appellant filed a pro se response. However, on

May 1, 2018, the court issued an order dismissing his petition and granting

counsel’s petition to withdraw.

       On May 24, 2018, Appellant filed a timely, pro se notice of appeal.3 The

court did not order him to file a Pa.R.A.P. 1925(b) concise statement of errors
____________________________________________


2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3 We recognize that Appellant’s pro se notice of appeal confusingly indicated
that he was appealing from his judgment of sentence, but also suggested that
he was appealing from the PCRA court’s order denying his petition. We agree
with the PCRA court that Appellant “was most likely attempting to appeal his
PCRA dismissal.” PCRA Court Opinion (PCO), 12/11/18, at 2 n.1. Because
Appellant’s notice of appeal was timely filed from that order, we have
jurisdiction over his appeal. See Commonwealth v. Williams, 106 A.3d
583, 587 (Pa. 2014) (“A timely notice of appeal triggers the jurisdiction of the
appellate court, notwithstanding whether the notice of appeal is otherwise



                                           -2-
J-S29006-19



complained of on appeal, but it issued a Rule 1925(a) opinion on December

11, 2018.

       Herein, Appellant has filed two briefs, yet in neither one does he set

forth a Statement of the Questions Presented that comports with Pa.R.A.P.

2116(a). Notwithstanding, it is apparent that he is alleging that the PCRA

court erred in dismissing his petition because: (1) his arrest was illegal, as it

was unsupported by probable cause, and (2) his trial counsel acted

ineffectively by not filing a motion to suppress the evidence seized pursuant

to that arrest.

       Our standard of review regarding an order denying post-conviction relief

under the PCRA is whether the determination of the court is supported by the

evidence of record and is free of legal error. Commonwealth v. Ragan, 923

A.2d 1169, 1170 (Pa. 2007). This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding. Commonwealth v. Touw, 781 A.2d

1250, 1252 (Pa. Super. 2001).

       Initially, Appellant’s first issue is waived, as he failed to raise it before

trial in a motion to suppress. See 42 Pa.C.S. § 9543(a)(3) (stating that, to

____________________________________________


defective.”). Moreover, we need not remand for Appellant to correct the
defects in his notice of appeal. See id. at 587-88 (“In the event of a defective
notice of appeal, [Pa.R.A.P.] 902 encourages, though it does not require,
appellate courts to remand the matter to the lower court so that the
procedural defect may be remedied.”). The PCRA court correctly presumed
that Appellant was appealing from the order dismissing his petition, and it
addressed the issues raised in his petition in its Pa.R.A.P. 1925(a) opinion.

                                           -3-
J-S29006-19



be eligible for PCRA relief, the petitioner must demonstrate “[t]hat the

allegation of error has not been previously litigated or waived”); 42 Pa.C.S. §

9544(b) (declaring that “an issue is waived if the petitioner could have raised

it but failed to do so before trial, at trial, during unitary review, on appeal or

in   a    prior   state   post[-]conviction   proceeding”)   (emphasis     added).

Consequently, the PCRA court did not err in denying him relief on his first

suppression claim.

         In Appellant’s second issue, he argues that his trial counsel acted

ineffectively by not filing a motion to suppress the evidence seized during his

ostensibly illegal arrest. Regarding ineffectiveness claims, our Supreme Court

has directed that the following standards apply:

         [A] PCRA petitioner will be granted relief only when he proves, by
         a preponderance of the evidence, that his conviction or sentence
         resulted from the “[i]neffective 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(a)(2)(ii).
         “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.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,]
         886 [(Pa. 2010)] (citing Strickland[ v. Washington, 466 U.S.
         668, 104 S.Ct. 2052 (1984)]). In Pennsylvania, we have refined
         the Strickland performance and prejudice test into a three-part
         inquiry. See [Commonwealth v.] Pierce, [515 Pa. 153, 527
         A.2d 973 (Pa. 1987)]. Thus, to prove counsel ineffective, the
         petitioner must show that: (1) his underlying claim is of arguable
         merit; (2) counsel had no reasonable basis for his action or
         inaction; and (3) the petitioner suffered actual prejudice as a
         result. Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291
         (2010). “If a petitioner fails to prove any of these prongs, his
         claim fails.” Commonwealth v. Simpson, [620] Pa. [60, 73],
         66 A.3d 253, 260 (2013) (citation omitted). Generally, counsel’s

                                        -4-
J-S29006-19


      assistance is deemed constitutionally effective if he chose a
      particular course of conduct that had some reasonable basis
      designed to effectuate his client’s interests. See Ali, supra.
      Where matters of strategy and tactics are concerned, “[a] finding
      that a chosen strategy lacked a reasonable basis is not warranted
      unless it can be concluded that an alternative not chosen offered
      a potential for success substantially greater than the course
      actually pursued.” Colavita, 606 Pa. at 21, 993 A.2d at 887
      (quotation and quotation marks omitted).           To demonstrate
      prejudice, the petitioner must show that “there is a reasonable
      probability that, but for counsel’s unprofessional errors, the result
      of the proceedings would have been different.” Commonwealth
      v. King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
      quotation marks, and citation omitted).           “‘[A] reasonable
      probability is a probability that is sufficient to undermine
      confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
      86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins, 598
      Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466 U.S.
      at 694…)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

      Instantly, the PCRA court found that Appellant’s suppression claim

lacked arguable merit and, therefore, his trial counsel could not be deemed

ineffective for failing to file a suppression motion. See PCO at 8. In discussing

the underlying suppression issue, the court stated:

      It is well established that a person may be detained without
      probable cause to make an arrest if there is reasonable suspicion
      that criminal activity is afoot. Terry v. Ohio, 392 S.Ct. 1868
      (1968). Reasonable suspicion exists where[,]

         the officer is able to articulate specific observations which,
         in conjunction with reasonable inferences derived from
         those observations, led him reasonably to conclude, in light
         of his experience, that criminal activity was afoot and that
         the person he stopped was involved in that activity.
         Therefore, the fundamental inquiry of a reviewing court
         must be an objective one, namely, whether the facts
         available to the officer at the moment of intrusion warrant
         a man of reasonable caution in the belief that the action
         taken was appropriate.

                                      -5-
J-S29006-19


     Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005)
     [(citation omitted)]. To assess if reasonable suspicion existed at
     the time of the stop, the courts must look at the totality of the
     circumstances. Commonwealth v. Zhahir, 751 A.2d 1153,
     1156-57 (Pa. 2000). “[C]ourts must also afford due weight to the
     specific, reasonable inferences drawn from the facts in light of the
     officer’s experience and acknowledge that innocent facts, when
     considered collectively, may permit the investigative detention.”
     Commonwealth v. Clemens, 66 A.3d 373, 379 (Pa. Super.
     2013) [(citation omitted)].

           Furthermore, hand-to-hand transactions can be enough to
     raise a reasonable suspicion where the transaction is in a high
     crime area and the item passed is small. In Commonwealth v.
     Daniels, 999 A.2d 590 … (Pa. Super. 2010), the Superior Court
     found that “quick, hand-to-hand transactions of money for small
     items through a car window in a crime-friendly stretch of
     Philadelphia are, in the absence of noticeably larger items such as
     soft pretzels, pies, roses, beverages or newspapers, commonly
     known to often involve narcotics.” [Id. at 597 n.3 (citation
     omitted)]. Although a hand-shake or fist bump alone is not
     enough to raise a reasonable suspicion, where money is
     exchanged and the item received is small and concealed, a
     suspicion is raised as to the legality of the transaction. Thus, a
     combination of innocent facts when [taken] together can warrant
     further police investigation. Commonwealth v. Cook, 735 A.2d
     673, 676 (Pa. 1999).

            As a result of Pennsylvania’s heightened privacy
     considerations, a police officer’s pursuit of a fleeing individual is a
     seizure pursuant to Article 1, Section 8 of the Pennsylvania
     Constitution. Id. at 675. Thus, an officer must have reasonable
     suspicion to pursue a fleeing individual. However, the courts have
     held that “unprovoked flight could be considered among the
     relevant contextual considerations, since ‘nervous, evasive
     behavior is a pertinent factor in determining reasonable suspicion’
     and ‘[h]eadlong flight — wherever it occurs — is the consummate
     act of evasion.’” In re D.M., 781 A.2d 1161, 1164 (Pa. 2001)
     (citing Illinois v. Wardlow, 120 S.Ct. 673 (2000)). The Superior
     Court of Pennsylvania has clarified that such flight must be after
     either being confronted by police or recognizing their presence in
     the area. Commonwealth v. Washington, 51 A.3d 895, 898
     (Pa. Super. 2012).



                                      -6-
J-S29006-19


            In order for a [d]efendant to challenge the seizure of
     physical evidence, he has to demonstrate both a possessory
     interest in the evidence and a legally cognizable expectation of
     privacy in the area from which the evidence was seized.
     Commonwealth v. Byrd, 987 A.2d 786, 790 (Pa. Super. 2009).
     It is well[-]established that a defendant has no reasonable
     expectation of privacy in voluntarily abandoned contraband. [Id.
     (citation omitted)]. However, abandonment does not occur where
     evidence is discarded as a result of unlawful police coercion or
     action. Id. [at 791 (citation omitted).] If the initial seizure of a
     person is tainted, the abandonment of any property on their
     persons is a direct consequence of that illegality and will not be
     considered voluntary. [Id. (citation omitted).]

            In the case at bar, [Appellant] averred that his search and
     seizure was illegal because there was no probable cause to arrest.
     Additionally, [Appellant] averred that his detainment was not an
     investigatory stop but rather a complete arrest. This is false.
     [Appellant] was stopped pursuant to Terry when officers saw him
     make a hand-to-hand exchange of money for a small unknown
     object. At [Appellant’s] preliminary hearing, Officer Vaughn
     testified that he exited his vehicle and initiated the stop, [and
     Appellant] then attempted to flee. (N.T.[,] 3/19/2012, p. 19). A
     brief struggle ensued after which police officers were able to
     detain [Appellant]. Id. Once on the ground and in compliance,
     [Appellant] tossed a glove he had on his person. Eight green-
     tinted plastic bags fell out of the glove when it was tossed. Id.
     [Appellant] then voluntarily notified officers that he had a Glock
     .9 millimeter gun on his person. This gun was then removed by
     police. It was at this point that [Appellant] was placed in custody
     and arrested for possession of the firearm and marijuana. Id. at
     22. Following his arrest, [Appellant] attempted to flee police
     custody [again,] and was pursued and eventually caught by
     officers. At this point, he was rearrested.

           At trial, Officer Soto, who first called in the flash information
     with regard to the transaction, testified to the following:

        Q: What about it made you think it was a narcotics sale?

        A: It was [done] discretely. There was the money and, you
        know, a brief conversation, then he handed him the money,
        and in a closed fist over an open palm, he gave him what I
        believed was narcotics. I couldn’t actually see the object….



                                      -7-
J-S29006-19


     (N.T. 6/9/2015, p. 35). He testified that his experience and
     training led him to believe that this transaction was a narcotics
     sale. Id. at 34-[3]5. Additionally, at the time of the transaction,
     Officer Soto was merely five to six feet away in an unmarked
     vehicle. The transaction occurred directly in front of him. After
     witnessing the transaction, Officer Soto called in the flash
     information and requested back-up[,] since he had three females
     in custody in his car. Officer Vaughn and Officer Nance arrived on
     the scene shortly thereafter to make the stop. Officer Vaughn
     testified at trial to the following:

        Q: Can you tell us what happened when you approached?

        A: I approached with Officer Nance. We verbally identified
        ourselves as police officers. At that point [Appellant] and
        Mr. Johnson panicked and attempted to --

        MR. EGAN: Objection.

        THE COURT: Sustained. Tell me what you saw, please.

        THE WITNESS: Okay. They attempted to flee.

     ([Id. at] 60-[6]1).

            Testimony from both the preliminary hearing and trial,
     indicate that officers had reasonable suspicion to stop [Appellant].
     Officer Soto witnessed money and a small object being exchanged
     in a high crime area. His experience led him to believe that this
     was most likely a narcotics transaction. Police Officers Vaughn
     and Nance then arrived on the scene and attempted to stop
     [Appellant], by announcing police presence, when [Appellant]
     tried to flee and struggled with police. This[,] too[,] was evidence
     that illegal activity was afoot. [Appellant] was never frisked[;]
     rather, he was simply stopped for investigation and then
     voluntarily abandoned the glove containing the illegal substance.
     He also voluntarily informed officers that he had a gun on him.
     The gun was removed for safety purposes. Pursuant to well[-]
     established case-law, officers stopped [Appellant] legally after
     having a reasonable suspicion that criminal activity was afoot.
     Thus, the content abandoned by [Appellant] after this stop was
     voluntarily discarded and was properly admitted at trial. As a
     result, the trial court did not err in admitting the gun and drug
     evidence at trial.

PCO at 3-7.


                                    -8-
J-S29006-19



      After reviewing the record and the case law on which the PCRA court

relies, we conclude that it did not err in determining that Appellant’s

suppression claim lacks arguable merit and, therefore, his trial counsel did not

act ineffectively by not filing a motion to suppress. See Commonwealth v.

Rivera, 816 A.2d 282, 292 (Pa. Super. 2003) (“It is axiomatic that trial

counsel will not be considered ineffective for failing to pursue meritless

claims.”) (cleaned up).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/19




                                     -9-
