J-S38014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                      Appellee                   :
                                                 :
               v.                                :
                                                 :
    EDDIE EVANS                                  :
                                                 :
                      Appellant                  :       No. 1763 EDA 2016

                   Appeal from the PCRA Order March 21, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014962-2010


BEFORE:      GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                                 FILED JULY 18, 2017

        Appellant, Eddie Evans, appeals from the order entered in the

Philadelphia County Court of Common Pleas, dismissing his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinion, the PCRA court fully and correctly set forth the relevant

facts of this case.         Therefore, we have no reason to restate them.

Procedurally, a jury convicted Appellant of robbery on October 13, 2011.

The court sentenced Appellant on February 2, 2012, to a term of ten (10) to

twenty (20) years’ imprisonment.               This Court affirmed the judgment of

sentence on April 11, 2013, and our Supreme Court denied allowance of


____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


___________________________

*Former Justice specially assigned to the Superior Court.
J-S38014-17


appeal on September 25, 2013. See Commonwealth v. Evans, 75 A.3d

550 (Pa.Super. 2013), appeal denied, 621 Pa. 189, 76 A.3d 535 (2013).

Appellant did not seek further review, and his judgment of sentence became

final on December 24, 2013.

       Appellant timely filed a pro se PCRA petition on December 22, 2014.

The PCRA court appointed PCRA counsel, who subsequently filed a motion to

withdraw and Turner/Finley2 no-merit letter on November 27, 2015. On

February 1, 2016, the PCRA court issued notice of its intent to dismiss

Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907.        Appellant filed a

premature notice of appeal on March 2, 2016.3 The PCRA court denied relief

and allowed counsel to withdraw on March 21, 2016.          On September 13,

2016, the PCRA court ordered Appellant to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b).         Appellant timely filed a

counseled Rule 1925(b) statement on October 4, 2016. In his Rule 1925(b)

statement Appellant, for the first time, claimed: trial counsel was ineffective

for failing to file and litigate a motion to suppress the physical evidence of

this case; and PCRA counsel was ineffective for failing to raise a claim of trial
____________________________________________


2
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3
  Appellant’s notice of appeal relates forward to March 21, 2016, the date
the PCRA court denied PCRA relief. See Pa.R.A.P. 905(a)(5) (stating notice
of appeal filed after court’s determination but before entry of appealable
order shall be treated as filed after such entry and on date of entry). Hence,
no appellate jurisdictional defects impede our review.



                                           -2-
J-S38014-17


counsel’s ineffectiveness for not filing the motion to suppress. Appellant also

claimed trial counsel was ineffective for not filing a motion to suppress the

complainant’s out of court identification of Appellant.

        Appellant presents one issue in his brief:

           WHETHER TRIAL COUNSEL WAS INEFFECTIVE IN FAILING
           TO FILE AND LITIGATE A MOTION TO SUPPRESS THE
           PHYSICAL EVIDENCE?

(Appellant’s Brief at 3).

        Appellant concedes the police had reasonable suspicion to stop

Appellant and perform a Terry4 frisk to search for weapons.                 Appellant,

however, argues police lacked probable cause to search Appellant after the

police confirmed Appellant was unarmed. Appellant asserts the police went

beyond the scope of a Terry frisk when they removed cell phones from

Appellant’s    pocket.      Appellant     maintains   even   if   police   could   have

immediately determined that what they felt was a cell phone, the police

could not just from the feel decide the cell phone was stolen and thus

contraband. Appellant argues the plain feel doctrine does not apply to the

facts of this case and, as a result, the police unconstitutionally seized the cell

phone from Appellant’s person without the requisite probable cause.

Appellant also claims he was not in possession of the cell phone found on the

ground three feet from him or the gun recovered three to four houses away

____________________________________________


4
    Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).



                                           -3-
J-S38014-17


from Appellant; and he had no connection to those items. Appellant submits

trial counsel was ineffective for failing to file and litigate a motion to

suppress all of the physical evidence recovered as a result of the stop.

Appellant avers trial counsel had no reasonable basis for failing to file and

litigate a motion to suppress.    Appellant insists he was prejudiced by trial

counsel’s failure because without the evidence obtained, nothing tied

Appellant to the crime.     Appellant also asserts the complainant failed to

identify Appellant as the assailant at trial, so there is a reasonable possibility

that the outcome at trial would have been different as well.

      Appellant additionally argues PCRA counsel was ineffective for failing

to raise this claim of trial counsel’s ineffectiveness regarding the suppression

of evidence.     Appellant concludes we should reverse the dismissal of his

PCRA petition and remand for a new trial. We disagree.

      Our standard of review of a grant or denial of a PCRA petition is limited

to   examining    whether   the   evidence     of   record    supports    the    court’s

determination     and   whether    its    decision    is     free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007). We exercise de novo review over

the PCRA court’s legal conclusions. Commonwealth v. Spotz, 610 Pa. 17,


                                         -4-
J-S38014-17


44, 18 A.3d 244, 259 (2011).

      A PCRA petitioner must plead and prove his allegation of error has not

been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). “[A]n 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.”    42 Pa.C.S.A. § 9544(b).       A petitioner must preserve any

challenge to PCRA counsel’s stewardship in a response to counsel’s no-merit

letter, if counsel moves to withdraw, or during the 20-day response period

following the court’s Rule 907 notice of intent to dismiss. Commonwealth

v. Pitts, 603 Pa. 1, 9 n.4, 981 A.2d 875, 880 n.4 (2009).              See also

Commonwealth v. Ousley, 21 A.3d 1238, 1245 (Pa.Super. 2011), appeal

denied, 612 Pa. 698, 30 A.3d 487 (2011) (stating Pitts prohibits appellate

review of any ineffectiveness of counsel claim, if issue is raised for first time

in PCRA appeal).

      In the instant case, Appellant timely filed a pro se PCRA petition on

December 22, 2014. The PCRA court appointed counsel, who subsequently

filed a motion to withdraw and Turner/Finley no-merit letter. On February

1, 2016, the PCRA court issued Rule 907 notice. Appellant did not respond

to counsel’s motion to withdraw and Turner/Finley no-merit letter or to the

court’s Rule 907 notice.     Instead, Appellant filed a premature notice of

appeal on March 2, 2016. The PCRA court denied relief and allowed counsel

to withdraw on March 21, 2016. In his Rule 1925(b) statement, Appellant,


                                      -5-
J-S38014-17


for the first time, claimed: trial counsel was ineffective for failing to file and

litigate a motion to suppress the physical evidence of this case; and PCRA

counsel was ineffective for failing to raise a claim of trial counsel’s

ineffectiveness for not filing the motion to suppress. Therefore, Appellant’s

claims are waived. See Pitts, supra; Ousley, supra.

      Moreover, even if Appellant had properly preserved his issue for

appeal, it would merit no relief, as demonstrated in the PCRA court opinion.

(See PCRA Court Opinion, filed October 21, 2016, at 5-20) (finding: police

possessed reasonable suspicion to stop and frisk Appellant; radio call

reported armed robbery late at night and described assailant as black male

wearing burgundy hoodie; robbery occurred in high crime area; police

responded to radio call and observed Appellant, who was wearing burgundy

hoodie and was only individual in vicinity of robbery; radio call noted

assailant removed two cell phones from complainant; while frisking

Appellant, police felt cell phone in his waistband and recovered it; police

reasonably believed cell phone in Appellant’s waistband was contraband and

were justified in recovering it from Appellant; even if phone recovered from

Appellant’s waistband was subject to exclusion, remaining evidence would

have sustained Appellant’s conviction; when police encountered Appellant

and pursued him, police observed Appellant drop object; item Appellant

dropped and police recovered was cell phone; complainant promptly

identified Appellant, as assailant, as well as cell phone recovered from


                                      -6-
J-S38014-17


Appellant’s person and cell phone Appellant had discarded; complainant also

identified handgun Appellant had used during robbery, which police also

recovered nearby; complainant positively identified Appellant as robber at

scene; even though complainant could not identify Appellant as assailant at

time of trial, complainant acknowledged he had previously identified

Appellant in signed statement to police; complainant’s prompt one-on-one

identification of Appellant at scene as assailant was unequivocal and

untainted by surrounding circumstances; complainant’s inability to recognize

and identify Appellant at trial did not require exclusion of complainant’s prior

identification of Appellant). Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2017




                                     -7-
Circulated 06/20/2017 01:26 PM
