J-S41012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEFFREY HERNANDEZ                          :
                                               :
                       Appellant               :   No. 2031 MDA 2018

              Appeal from the Order Entered November 16, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0003588-2016

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEFFREY HERNANDEZ                          :
                                               :
                       Appellant               :   No. 2032 MDA 2018

              Appeal from the Order Entered November 16, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0003587-2016


BEFORE:      LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                     FILED: AUGUST 22, 2019

       Jeffrey Hernandez appeals from the order,1 entered in the Court of

Common Pleas of Lancaster County, dismissing his petition filed pursuant to

____________________________________________


1  Hernandez pled guilty on two separate dockets numbers below, CP-36-CR-
0003587-2016 (#3587) and CP-36-CR-0003588-2016 (#3588). Hernandez
filed two separate notices of appeal, each containing one docket number for
each case listed in the trial court. Thus, he has complied with the holding of


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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the Post Conviction Relief Act (PCRA).2          Because Hernandez’s underlying

suppression claim has no merit, we affirm.

        In July 2016, Hernandez was charged with various drug offenses after

police executed two search warrants that resulted in the confiscation of over

14 grams of heroin on Hernandez’s person and 2 grams of heroin (in 149

individual bags) and drug paraphernalia from Hernandez’s residence.         The

warrants were based on information obtained by Lancaster Drug Task Force

Officers from two confidential informants (CI); the CIs were involved in five

controlled buys of heroin from Hernandez in 2014 and 2016. Hernandez filed

a pretrial motion to suppress the seized evidence, claiming that the seizure of

“the drugs found on his person following the issuance of the search warrant

was not based upon probable cause that the drugs would be found on his

person.” Brief of Defendant in Support of Motion to Suppress, 5/16/17, at 1.

After a hearing, the court denied the motion and, on May 17, 2017, Hernandez

entered an open guilty plea to various drug charges on two separate docket

numbers. See supra n.1.


____________________________________________


Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (“[I]n future cases
[Pa.R.A.P.] 341(a) will, in accordance with its Official Note, require that when
a single order resolves issues arising on more than one lower court docket,
separate notices of appeal must be filed. The failure to do so will result in
quashal of the appeal.”). The appeals were consolidated upon stipulation by
the parties on January 7, 2019.
2   42 Pa.C.S. §§ 9541-9546.




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        After reviewing a mental health evaluation and a presentence

investigation report (PSI), the court sentenced Hernandez on docket #3587

to 30 months to 5 years’ incarceration on Count 1 (possession with intent to

deliver heroin),3 30 months to five years’ incarceration on Count 2 (criminal

conspiracy),4 and 6 to 12 months of incarceration on Count 3 (possession of

drug paraphernalia);5 all sentences were ordered to run concurrent to one

another, for an aggregate sentence of 30 months to 5 years of incarceration.

On docket #3588, Hernandez was sentenced to 33 months to 10 years’

incarceration for possession with intent to deliver heroin,6 to run consecutively

to the sentence at docket #3587. Hernandez filed a motion to reconsider

sentence that was denied on August 18, 2017.            On February 8, 2018,

Hernandez filed a timely pro se PCRA petition; counsel was appointed and filed

an amended petition, raising the instant issue. On October 16, 2018, the trial

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

petition without a hearing; Hernandez did not file a response to the notice.

On November 16, 2018, the trial court dismissed Hernandez’s petition.




____________________________________________


3   35 P.S. § 780-113(a)(30).

4   18 Pa.C.S. § 903.

5   35 P.S. § 780-113(a)(32).

6   35 P.S. § 780-113(a)(30).

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         Hernandez filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.            On appeal,

Hernandez raises the following issue for our consideration:

         Did the trial court err in denying Mr. Hernandez[’s] PCRA [petition]
         without a hearing on his claim that trial counsel was ineffective for
         failing to advise him to have a stipulated bench trial and plead
         guilty as there was a reasonable probability that the Superior
         Court would have reversed the trial court’s suppression denial
         where probable cause did not exist to support the issuance of the
         search warrant to search Mr. Hernandez’s person?

Appellant’s Brief, at 5.

         The standard of review of an order denying a PCRA petition is whether

that determination is supported by the evidence of record and is free of legal

error.    Commonwealth v. Brown, 196 A.3d 130 (Pa. 2018).                The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record. Commonwealth v. Johnston, 42 A.3d 1120, 1126

(Pa. Super. 2012). Moreover, a court may dismiss a PCRA petition without a

hearing if the judge is satisfied after review that there are no genuine issues

concerning any material fact and that the defendant is not entitled to post-

conviction collateral relief, and no purpose would be served by any further

proceedings. Pa.R.Crim.P. 907.

         Instantly, Hernandez contends that trial counsel was ineffective 7 for

advising him to plead guilty, rather than proceed to a bench trial, where by
____________________________________________


7“In order to establish a claim of ineffective assistance of counsel, a defendant
must demonstrate three things: (1) that the underlying claim has arguable



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doing so he was unable to challenge the suppression court’s finding on appeal.

Hernandez claims that it was “reasonabl[y] probab[le]” that our Court would

have reversed the trial court’s order denying his suppression motion where

“[i]n the instant case, the warrant did not contain probable cause that drugs

would be found on Mr. Hernandez’s person on July 8, 2016.” Appellant’s Brief,

at 15, 18.

       In Commonwealth v. Ruey, 892 A.2d 802, 810 (Pa. 2006), our

Supreme Court stated:

       To ensure that the citizens of Pennsylvania are protected from
       unreasonable searches and seizures, Article 1, Section 8 [of the
       Pennsylvania Constitution] requires that a warrant: (1) describe
       the place [or person] to be searched and the items to be seized
       with specificity;[8] and (2) be supported by probable cause to
       believe that the items sought will provide evidence of a crime.



____________________________________________


merit; (2) that counsel’s performance was not reasonably designed to
effectuate the defendant’s interests; and (3) that counsel’s unreasonable
performance prejudiced the defendant.” Commonwealth v. Lynch, 820
A.2d 728, 733 (Pa. Super. 2003).

8 Here, the challenged search warrant specifically describes the person to be
searched as “Jeffrey Hernandez, DOB: 07/15/1992 H/M 5’7”. The warrant
also indicates that the “attached affidavit of probable cause is incorporated by
reference in its entirety.” Application for Search Warrant and Authorization,
Warrant Control # TF-0132-16F, 7/8/16 at 1. The items that the warrant
specifically identifies to be searched for and seized are: “[c]ontrolled
[s]ubstances, . . . specifically, but not limited to heroin, . . . [and] any assets,
paraphernalia, or other materials related to the use or sales of same.” Id.
The affidavit also notes that “[s]ellers and users of controlled substances . . .
maintain on their person, paraphernalia for cutting, packaging, weighing and
distributing controlled substances.” Id. at 2(f) (emphasis added).



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Probable cause exists where the facts and circumstances within the affiant’s

knowledge, and of which he has reasonably trustworthy information, are

sufficient in themselves to warrant a man of reasonable caution in the belief

that a search should be conducted. Commonwealth v. Jones, 988 A.2d 649

(Pa. 2010).

      The United States Supreme Court established a “totality of the

circumstances” test for determining whether a request for a search warrant

under the Fourth Amendment of the United States Constitution is supported

by probable cause. Id. at 656. The Pennsylvania Supreme Court adopted

this test “for purposes of making and reviewing probable cause determinations

under Article 1, Section 8.”    Id.   Under the test, “the task of an issuing

authority is ‘simply to make a practical, common-sense decision whether,

given all of the circumstances set forth in the affidavit before him, including

the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay

information, there is a fair probability that contraband or evidence of a crime

will be found in a particular place.’” Commonwealth v. Torres, 764 A.2d

532, 537 (Pa. 2001) (citations omitted).

      Hernandez claims that the information in the search warrant was “stale”

as paragraphs 3-9 of the affidavit of probable cause discuss controlled buys

that occurred between Hernandez and CI#1 in 2013 and 2014.                   In

Commonwealth v. Leed, 186 A3d 405 (Pa. 2018), our Supreme Court

recognized that “[t]he age of the information supporting a warrant application

is a factor in determining probable cause. If too old, the information is stale,

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and probable cause may no longer exist.            However, staleness is not

determined by age alone, as this would be inconsistent with a totality of the

circumstances analysis.” Id. at 413

      While the first nine paragraphs of the affidavit of probable cause involve

three controlled buys and information obtained by the task force in 2013 and

2014, the remainder of the affidavit, specifically paragraphs 10-15, concern

two controlled buys and information gained from CI#2 regarding personal

knowledge that Hernandez was in the business of selling heroin at his Zook

Avenue, Lancaster residence, and out of his black BMW in 2016. In fact, CI#2

stated that he had seen “multiple bundles” of heroin in Hernandez’s BMW and

had purchased heroin from Hernandez inside of his BMW as recently as May

2016. Affidavit of Probable Cause, 7/8/16, at ¶ 10. In addition, during the

weeks of June 19, 2016 and July 3, 2016, CI#2 made two controlled buys of

heroin from Hernandez at a location in Lancaster and at his Zook Avenue

residence. Both purchases were made under the direction and control of the

affiant, a member of the Lancaster County Drug Task Force, who saw

Hernandez arrive at the Lancaster location and the Zook Avenue residence at

the times of the controlled purchases. Finally, the affidavit states that within

48 hours of applying for the search warrant, “CI#2 had a conversation with

Jeffrey Hernandez [who told CI#2] that he has quantities of [h]eroin for sale.”

Affidavit of Probable Cause, 7/8/16, at ¶ 15.

      Based on a totality of the circumstances, it is evident that the magistrate

had probable cause to issue a search warrant of Hernandez’s person in July

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2016 based on the information contained within the July 8, 2016 affidavit of

probable cause. See Commonwealth v. Novac, 335 A.2d 773, 775, (Pa.

Super. 1975) (“If the issuing officer is presented with evidence of criminal

activity at some prior time, this will not support a finding of probable cause as

of the date the warrant issues, unless it is also shown that the criminal

activity continued up to or about that time.”) (emphasis added) (citation

omitted). The information provided in the affidavit shows an ongoing course

of conduct, specifically the possession and sale of heroin, on the part of

Hernandez.    Moreover, just days before the affidavit was prepared, CI#2

conducted a controlled buy from Hernandez at his Zook Avenue residence.

The affiant saw Hernandez arrive at the residence driving his black BMW (out

of which he also sold heroin) immediately prior to the CI emerging from the

residence with heroin in his possession. Based on the above information, we

conclude that there was sufficient evidence “to warrant a man of reasonable

caution in the belief that a search warrant should be conducted” on

Hernandez’s person. Jones, 988 A.2d at 656.

      Because Hernandez’s underlying suppression claim, as it relates to his

ineffectiveness issue, does not have arguable merit, the trial court properly

dismissed his PCRA petition without a hearing. Lynch, supra (counsel will

not be deemed ineffective for failing to raise meritless claim).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2019




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