J-S38019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

HENRY JOHN ALLEN,

                            Appellant                 No. 2651 EDA 2016


                  Appeal from the Order Entered July 28, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000187-2011


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

MEMORANDUM BY SHOGAN, J.:                           FILED AUGUST 03, 2017

       Appellant, Henry John Allen, appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

       The PCRA court summarized the history of this case as follows:

              By way of background, on April 10, 2010[,] the Appellant
       was arrested by Officer William J. Murphy[,] III at approximately
       3:00 a.m. while on patrol on Concord Avenue in Chester City.
       Officer Murphy, III observed the Appellant engaged in suspicious
       activity, loitering around the passenger window of a Dodge
       Intrepid. On seeing the police, the Appellant began to flee in a
       Chevrolet Geo which was summarily stopped by Officer Murphy.
       On inspecting the Dodge Intrepid, Officer Murphy[,] III observed
       an open glove box, cocaine scattered around the vehicle, and
       spice bottles with suspected cocaine scattered around the
       vehicle.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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               Thereafter[,] on February 25, 2011[,] the Appellant filed a
        suppression motion which was thereafter heard on December 1,
        2011. After the Appellant’s suppression motion was denied, [a]
        jury trial proceeded on May 15, 2012 and continued thereafter
        until jury verdict on May 17, 2012[,] at which time the Appellant
        was found guilty of possession with intent to deliver and
        possession of drug paraphernalia.[1] On July 16, 2012, Appellant
        was sentenced to 60 to 120 months for possession with intent to
        deliver and a consecutive 4 to 8 month sentence for possession
        of drug paraphernalia and a $15,000 fine.

              On July 23, 2012[,] Appellant filed timely post-sentence
        motions. Amended post[-]sentence motions were filed through
        counsel on September 13, 2012.       After amendment of the
        sentencing order on October 19, 2012, the Appellant filed a
        timely Notice of Appeal to the Pennsylvania Superior Court on
        November 8, 2012. On [September 23, 2013,] the Pennsylvania
        Superior Court affirmed the Appellant’s judgment of sentence.
        [Commonwealth v. Allen, 87 A.3d 388, 3093 EDA 2012 (Pa.
        Super. filed September 23, 2013) (unpublished memorandum).]

PCRA Court Opinion, 1/18/17, at 2-3.

        On August 18, 2014, Appellant filed, pro se, this timely PCRA petition.

The PCRA court appointed counsel, who filed an amended PCRA petition on

January 21, 2015. Subsequently, the PCRA court held a hearing on March

10, 2016.2

____________________________________________


1
    35 P.S. §§ 780-113(a)(30), (32).
2
    The PCRA court summarized Appellant’s claims as follows:

               Appellant raised the following issues seeking collateral
        relief: Initially, the Appellant raised an Alleyne issue but after
        review on the record acknowledged that the issue was moot as
        impertinent as the Appellant was not sentenced to any
        mandatory minimum sentence. (N.T. 3/10/16, pp 3). Next, the
(Footnote Continued Next Page)


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      On July 28, 2016, the PCRA court entered an order dismissing

Appellant’s PCRA petition. This timely appeal followed. Both Appellant and

the PCRA court have complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

      I. WAS THE [PCRA] COURT IN ERROR FOR DISMISSING
      [APPELLANT’S] PETITION FOR POST CONVICTION RELIEF
      ALLEGING INEFFECTIVENESS OF TRIAL COUNSEL WHEN,
      DURING A HEARING PURSUANT TO A PRETRIAL OMNIBUS
      MOTION FILED, FAILED TO PRESENT TESTIMONY AS TO
      OWNERSHIP OF THE MOTOR VEHICLE IN QUESTION WHEN THE
      TRIAL COURT RULED THAT [APPELLANT] DID NOT HAVE
      STANDING TO RAISE SAID ISSUE?

Appellant’s Brief at 4 (capitalization in original).

      In his sole issue, Appellant argues that his trial counsel was

ineffective. Appellant’s Brief at 7-11. Specifically, Appellant contends that

trial counsel should have called Appellant’s son as a witness at Appellant’s

suppression hearing in order to testify that Appellant had permission from

his son to be in the Dodge Intrepid. Id. at 7. Appellant asserts that such


                       _______________________
(Footnote Continued)

      Appellant raised an ineffectiveness claim based on trial counsel’s
      failure to call a purported necessary witness in support of
      suppression. That is, the Appellant claims that trial counsel
      should have called the Appellant’s son, Jamal, to testify that the
      Appellant was a permissible user of the vehicle such that he
      would have legally cognizable standing to challenge suppression
      of the contraband seized from the vehicle. (N.T. 3/10/16, p. 4).
      Lastly, there was yet a final issue raised in Appellant’s PCRA
      petition that he withdrew at the hearing. (N.T. 3/10/16, p.4).

PCRA Court Opinion, 1/18/17, at 3-4.



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testimony from his son would have permitted Appellant to establish the

proper standing in order to pursue his suppression claim. Id. at 11.

       When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

       Appellant’s claim challenges the effective assistance of his trial

counsel. Our Supreme Court has long stated that in order to succeed on a

claim of ineffective assistance of counsel, an appellant must demonstrate (1)

that   the   underlying claim   is of    arguable   merit; (2) that   counsel’s

performance lacked a reasonable basis; and (3) that the ineffectiveness of

counsel caused the appellant prejudice.       Commonwealth v. Pierce, 786

A.2d 203, 213 (Pa. 2001).

       We have explained that trial counsel cannot be deemed ineffective for

failing to pursue a meritless claim.     Commonwealth v. Loner, 836 A.2d


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125, 132 (Pa. Super. 2003) (en banc). Moreover, with regard to the second

prong, we have reiterated that trial counsel’s approach must be “so

unreasonable    that   no   competent    lawyer   would   have    chosen   it.”

Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000)

(quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).

      Our Supreme Court has defined “reasonableness” as follows:

             Our inquiry ceases and counsel’s assistance is deemed
      constitutionally effective once we are able to conclude that the
      particular course chosen by counsel had some reasonable basis
      designed to effectuate his client’s interests. The test is not
      whether other alternatives were more reasonable, employing a
      hindsight evaluation of the record.        Although weigh the
      alternatives we must, the balance tips in favor of a finding of
      effective assistance as soon as it is determined that trial
      counsel’s decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349, 352-353

(Pa. 1967)) (emphasis in original).

      In addition, prejudice requires proof that there is a reasonable

probability that, but for counsel’s error, the outcome of the proceeding

would have been different. Pierce, 786 A.2d at 213. “A failure to satisfy

any prong of the ineffectiveness test requires rejection of the claim of

ineffectiveness.”   Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,

when it is clear that a petitioner has failed to meet the prejudice prong of an

ineffective-assistance-of-counsel claim, the claim may be disposed of on that



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basis alone, without a determination of whether the first two prongs have

been met.      Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super.

2005).

       It is presumed that the petitioner’s counsel was effective, unless the

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,

1177     (Pa. 1999).         We   are   bound by the         PCRA   court’s credibility

determinations     where      there     is   support   for   them    in   the   record.

Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).                       Furthermore,

claims    of   ineffective    assistance      of   counsel    are   not   self-proving.

Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).

       To prevail on a claim of trial counsel’s ineffectiveness for failure to call

a witness, an appellant must prove: “(1) the witness existed; (2) the witness

was available; (3) trial counsel was informed of the existence of the witness

or should have known of the witness’s existence; (4) the witness was

prepared to cooperate and would have testified on appellant’s behalf; and

(5) the absence of the testimony prejudiced appellant.” Commonwealth v.

Chmiel, 889 A.2d 501, 545-546 (Pa. 2005) (citations omitted).                     Trial

counsel’s failure to call a particular witness does not constitute ineffective

assistance without some showing that the absent witness’s testimony would

have been beneficial or helpful in establishing the asserted defense.              Id.

Appellant must demonstrate how the testimony of the purported witness


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would have been beneficial under the circumstances of the case.        Id.   In

addition, counsel is not ineffective for failing to call a witness whose

testimony would have been merely cumulative.             Commonwealth v.

Meadows, 787 A.2d 312, 320 (Pa. 2001).

     Moreover, we are mindful that the plain view doctrine permits the

warrantless seizure of an object in plain view.     Specifically, the doctrine

allows the admission of evidence seized without a warrant when: (1) an

officer views the object from a lawful vantage point; (2) it is immediately

apparent to him that the object is incriminating; and (3) the officer has a

lawful right of access to the object. Commonwealth v. Collins, 950 A.2d

1041, 1045 (Pa. Super. 2008) (en banc) (citing Commonwealth v.

McCree, 924 A.2d 621, 628-629 (Pa. 2007)). As we have long observed,

there is no legitimate expectation of privacy shielding that portion of the

interior of an automobile which may be viewed from outside of the vehicle

by either an inquisitive passerby or diligent police officers. Commonwealth

v. Jones, 978 A.2d 1000, 1005 (Pa. Super. 2005) (citing Texas v. Brown,

460 U.S. 730, 740 (1983).

     The PCRA court addressed this claim of ineffective assistance of

counsel as follows:

     At issue here[] is trial counsel’s decision not to call Jamal Allen,
     [Appellant’s] son. However, failing to call [Appellant’s] son was
     of no moment to the adverse decision on suppression nor the
     adverse result at trial.




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            Even assuming arguendo [that Appellant] had standing to
     challenge the cocaine and packaging evidence, separate
     independent lawful grounds existed for the admission of the
     contraband evidence and denial of suppression of the evidence
     recovered from the Dodge Intrepid, that is, while Officer
     Murphy[,] III was conducting his investigation he observed and
     readily recognized all of the contraband from a lawful vantage
     point. Therefore, even if the son, Jamal Allen, were [called to
     testify] and his testimony credited[,] there still would have been
     no difference in the outcome of the matter.

            In this case, independent justification for Officer Murphy[,]
     III’s search and seizure of the pertinent contraband was present
     pursuant to the “plain view” doctrine. “The ‘plain view’ doctrine
     is often considered an exception to the general rule that
     warrantless searches are presumptively unreasonable . . . .”
     McCree, 924 A.2d at 627 (quoting Horton v. California, 496
     U.S. 128, 133, 110 S.Ct. 2301, 2306, 110 L. Ed. 2d 112
     (1990)). The plain view doctrine permits the warrantless seizure
     of evidence in plain view when: (1) an officer views the object
     from a lawful vantage point; and (2) it is ‘immediately apparent’
     to him that the object is incriminating. In determining ‘whether
     the incriminating nature of an object is immediately apparent to
     the police officer, we look to the totality of the circumstances.’
     An officer can never be one hundred percent certain that a
     substance in plain view is incriminating, but his belief must be
     supported by probable cause. Commonwealth v. Johnson,
     921 A.2d 1221, 1223 (Pa. Super. 2007).

           When reviewing whether an object’s criminal nature is
     “immediately apparent”, probable cause merely requires that the
     facts available to the officer would warrant a man of reasonable
     caution in the belief, that certain items may be contraband or
     stolen property or useful as evidence of a crime; it does not
     demand any showing that such a belief be correct or more likely
     true than false.     A practical, non-technical probability that
     incriminating evidence is involved is all that is required.
     Commonwealth v. McEnany, 667 A.2d 1143, 1148 (Pa. Super.
     1995). In this case, the trial court properly determined that the
     contraband and paraphernalia were discovered pursuant to the
     “plain view” exception to the warrant requirement.         Officer
     Murphy[,] III’s observations of the “criminal nature” of the
     suspected cocaine and packaging are obvious.


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             Here, trial counsel cannot be deemed ineffective for failing
      to pursue a meritless claim. Commonwealth v. Christy, []
      656 A.2d 897, 881 ([Pa.] 1995). Also, [Appellant] would have to
      show that the result of the proceedings would have been
      different but for counsel’s purported errors.          Here, the
      contraband and paraphernalia would not be suppressed as they
      were observed from a lawful vantage point and their criminal
      nature obvious.

            For all of the foregoing reasons, the Appellant’s claim of
      ineffectiveness is wholly unsupported by the record, and his
      claim under the [PCRA] was properly DISMISSED.

PCRA Court Opinion, 1/18/17, at 8-10.

      Indeed, as the PCRA court determined, Appellant failed to establish the

prejudice prong of the ineffectiveness test.      The PCRA court’s analysis is

supported by the record and the law, and we agree with its determination

that Appellant failed to meet his burden to prove that trial counsel was

ineffective. Accordingly, Appellant’s allegation of ineffective assistance fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2017




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