J-S46027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RYAN WRIGHT

                            Appellant                No. 2980 EDA 2015


                 Appeal from the PCRA Order August 31, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0005191-2012


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                 FILED JULY 26, 2016

        Ryan Wright appeals, pro se, from the order entered August 31, 2015,

in the Montgomery County Court of Common Pleas, denying his first petition

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

9541-9546. Wright seeks relief from the judgment of sentence of a term of

five to 10 years’ imprisonment, imposed following his non-jury conviction of

persons not to possess firearms.1 On appeal, Wright contends trial counsel

was ineffective for failing to argue that the parole agent involved in his




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 6105(a)(1).
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arrest was acting as a “stalking horse” for the police.2 For the reasons that

follow, we affirm.

        The facts underlying Wright’s arrest and conviction were summarized

by this Court in the unpublished decision affirming his judgment of sentence

on direct appeal:

              During April 2012, State Parole Agent Harry Gaab learned
        information from two sources that [Wright] would be in
        Norristown, Montgomery County. At the time, [Wright] was on
        state parole and was not permitted outside of Philadelphia
        County. According to these sources, [Wright] was carrying a
        gun, involved in drug deals and robberies, and driving a black
        Jeep Cherokee. The sources were individuals whom the agent
        had used in the past on multiple occasions[, and had provided
        information that led to arrests.] On April 30, 2012, Agent Gaab
        learned from one source that [Wright] would be in Norristown in
        the vehicle in question in the vicinity of Spruce and Willow
        Streets. Agent Gaab confirmed this information within fifteen
        minutes, observing a black Jeep Cherokee parked on the corner
        of Spruce and Willow Streets. The agent recorded the license
        plate number and ran a check, which revealed no record of that
        tag. However, Agent Gaab's source confirmed that the tag
        number belonged to the vehicle driven by [Wright].

              Thereafter, for safety reasons, Agent Gaab and his
        supervisor contacted Norristown police to aid in arresting
        [Wright]. Agent Gaab informed Sergeant Langdon of the
        Norristown police how he had learned of the information
        regarding [Wright]. Sergeant Langdon passed this information
        along to Officer Louis Geiser of the Norristown Police
        Department. Officer Geiser also discovered from his own check
        that [Wright] had four active fine and costs arrest warrants from
        a magisterial district court.


____________________________________________


2
    Wright’s Brief at 4.




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             Subsequently, on May 2, 2012, Agent Gaab learned from a
       source that [Wright] would be in Norristown in the black Jeep
       Cherokee. Within a half-hour of receiving this information,
       Officer Geiser, at approximately 10:00 p.m., located a black Jeep
       Cherokee matching the description previously given.            He
       confirmed that the license plate number of the vehicle matched
       that of the suspect vehicle. Accordingly, he activated his lights
       and approached the vehicle with his weapon drawn. Officer
       Geiser directed [Wright] to place his hands outside the window
       of the vehicle. [Wright] complied.

             Agent Gaab and his supervisor then arrived on the scene
       along with an additional Norristown police officer. After being
       removed from the vehicle and placed on the ground, [Wright]
       indicated that he had a gun in his back pocket.            Law
       enforcement seized the weapon and arrested [Wright].

Commonwealth v. Wright, 104 A.3d 56 [1067 EDA 2013] (Pa. Super.

2014) (unpublished memorandum at 1-3).

       As noted above, Wright was charged with one count of persons not to

possess firearms.3       Prior to trial, Wright sought to suppress the firearm,

asserting that the stop of his vehicle, and subsequent seizure and search of

his person, were illegal.4 Following a hearing on March 28, 2013, the trial

court denied Wright’s motion to suppress. Wright proceeded to a stipulated

non-jury trial on April 3, 2013, was found guilty by the trial court, and was
____________________________________________


3
 We note that Wright was also charged with one count of firearms not to be
carried without a license, but that charge was later nolle prossed by the
Commonwealth. See 18 Pa.C.S. § 6106(a)(1).
4
  In the memorandum disposing of Wright’s direct appeal, the panel noted
that although no written suppression motion was included in the record, or
reflected on the docket, the Commonwealth did not object to the lack of a
written suppression motion.     See Wright, supra, 1067 EDA 2013,
unpublished memorandum at 3 n.3.




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sentenced the same day to a standard range term of five to 10 years’

imprisonment.       This Court affirmed the judgment of sentence on direct

appeal. See id.

       On June 3, 2015, Wright filed a timely, pro se PCRA petition, and

counsel was appointed. However, on August 4, 2015, counsel filed a petition

to withdraw and accompanying Turner/Finley5 “no merit” letter. The same

day, the PCRA court granted counsel’s petition to withdraw, and issued

notice of its intent to dismiss Wright’s petition without first conducting an

evidentiary hearing pursuant to Pa.R.A.P. 907.        Wright did not file a

response to the court’s notice, and accordingly, on August 31, 2015, the

PCRA court entered an order dismissing the petition.      This timely appeal

followed.6
____________________________________________


5
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
6
  Although the notice of appeal was time-stamped October 5, 2015, Wright
mailed the notice on September 28, 2015, as evidenced by a copy of the
prison “cash slip” included with the petition, which indicates the date he had
postage deducted from his prisoner account. “Under the prisoner mailbox
rule, we deem a pro se document filed on the date it is placed in the hands
of prison authorities for mailing.” Commonwealth v. Brandon, 51 A.3d
231, 234 n.5 (Pa. Super. 2012) (citation omitted). Therefore, Wright’s
appeal was timely filed.

      Thereafter, on October 6, 2015, the PCRA court ordered Wright to file
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Wright complied with the court’s directive, and filed a concise
statement that was docketed on November 2, 2015. Although the court
directed Wright to file the petition within 21 days of the its order, Wright
averred in his concise statement that he handed the document to prison
(Footnote Continued Next Page)


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      Wright’s sole claim on appeal asserts the ineffectiveness of trial

counsel for failing to argue during the suppression hearing that Parole Agent

Gaab circumvented the warrant requirement by acting as a “stalking horse”

for the police. Wright’s Brief at 4.

      When reviewing an order dismissing a PCRA petition, we must

determine whether the PCRA court’s findings of fact are supported by the

record,     and   whether       its   legal      conclusions    are   free   from     error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference

is granted to the findings of the PCRA court, and these findings will not be

disturbed    unless      they    have    no      support   in   the   certified     record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted).

      “[T]o 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.” Spotz, supra, 84 A.3d at 311. Moreover, “[c]ounsel is presumed

to have rendered effective assistance, and, if a claim fails under any

required element …, the court may dismiss the claim on that basis.”

Commonwealth v. Reid, 99 A.3d 470, 481 (Pa. 2014) (quotation omitted).
                       _______________________
(Footnote Continued)

officials for mailing on October 26, 2015. The trial court accepted the filing,
and, therefore, we will deem it timely filed pursuant to the prisoner mailbox
rule. See Brandon, supra.




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      During the suppression hearing, counsel argued the stop of Wright’s

vehicle and the seizure of his person were unlawful. Specifically, he claimed

Agent Gaab did not have reasonable suspicion to believe Wright committed a

parole violation.   See N.T., 3/28/2013, at 61.     However, Wright asserts

counsel should have argued Agent Gaab “switched hats” and “began acting

as a police officer” when he conducted an investigation and gathered

evidence to support new criminal charges.        Wright’s Brief at 13.     He

explains:

      When a parole agent, in his normal duties, involves the police in
      the search and arrest of a parolee, the parole agent “switched
      hats” and became a “stalking horse”, thereby, circumventing the
      warrant requirement which in reality is the normal function of
      the police.

Id.

      Wright contends Agent Gaab began gathering evidence against him

based on hearsay statements from two informants, who claimed Wright was

engaged in illegal activity. See id. at 14. He then conducted “surveillance”

which resulted in his observation of Wright’s vehicle parked legally near the

home of Wright’s children. Id. at 15. Agent Gaab never contacted Wright’s

supervising parole agent, but rather, “with the police in tow, relied fully on

the police power to arrest Wright.”    Id.   Therefore, Wright argues Agent

Gaab was not acting within his authority as a parole agent at the time he

stopped and searched Wright, but rather, he had “switched hats” to become

a “stalking horse” for the police.    Wright further contends this claim has

arguable merit, counsel had no reasonable basis for failing to present a

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“stalking horse” defense, and he was prejudiced as a result of counsel’s

inaction. See id. at 16-17.

     In Commonwealth v. Pickron, 634 A.2d 1093 (Pa. 1993), the

Pennsylvania Supreme Court recognized parolees retain the right, under the

Fourth Amendment, to be free from unreasonable searches and seizures.

Id. at 1096. In that case, the Court considered whether parole officers had

exceeded their authority in conducting a full search of a parolee’s home.

The suppression court concluded the agents “had ‘switched hats’ by ceasing

to act as administrators of the parole system, and began acting as police

officers gathering evidence to support new criminal charges.” Id. at 1095.

However, the Superior Court reversed the decision on appeal. Id.

     In reinstating the order of the trial court, the Supreme Court opined:

     It is a matter of federal law and state law that parole and
     probation officers cannot act like “stalking horses” for the police.
     We have a factual determination by the Suppression Court that
     these agents were subjectively operating as police officers. We
     do not have a statute or regulation which allows or
     governs the performance of warrantless searches based
     upon reasonable suspicion or probable cause.

Id. at 1097 (emphasis supplied).

     Subsequently, in January of 1996, the legislature added Section

331.27 to the 1941 Parole Act which permitted a parole agent “to search a

parolee’s person and property if there [was] a reasonable suspicion to

believe that the person or property [had] evidence of parole violations.”

See Commonwealth v. Mathis, 125 A.3d 780, 785 (Pa. Super. 2015),

appeal granted, 134 A.3d 51 (Pa. 2016).      That statute was later repealed

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and recodified as the Prison and Parole Code, 61 Pa.C.S. § 6101 et seq.

Pursuant to 61 Pa.C.S. § 6153, a parole agent may conduct a personal or

property search of a parolee if there is a reasonable suspicion to believe that

“the offender possesses contraband or other evidence of violations of the

conditions of supervision” or “the real or other property in the possession of

or under the control of the offender contains contraband or other evidence of

violations of the conditions of supervision.” 61 Pa.C.S. § 6153(d)(1)(i) and

(d)(2).7   See Commonwealth v. Curry, 900 A.2d 390, 394 (Pa. Super.

2006) (“Essentially, parolees agree to ‘endure warrantless searches’ based

only on reasonable suspicion in exchange for their early release from

prison.”) (citation omitted).         Accordingly, this Court has explained the

determination of whether a parole agent acted as a “stalking horse” for the

police when conducting a search of a parolee, is “pertinent” to the extent

that a parole agent may, statutorily, circumvent the warrant requirement

based upon a finding of reasonable suspicion under Section 6153(d)(1).

Commonwealth v. Altadonna, 817 A.2d 1145, 1153 (Pa. Super. 2003).

       In the present case, the PCRA court found Agent Gaab was not acting

as a “stalking horse” for the police. The court opined:


____________________________________________


7
  We note that, absent exigent circumstances, an agent must obtain prior
approval from a supervisor to conduct a search of a parolee’s property. 61
P.S. § 6153(d)(3). However, no prior approval is required for a personal
search. Id.




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             In this case, the May 2, 2012, search and seizure of
       [Wright] was based solely upon Agent Gaab’s investigation which
       uncovered information from two reliable informants, that
       [Wright] would be in Norristown carrying a gun and doing drug
       deals, all of which were parole violations. Agent Gaab first went
       to his supervisor, State Parole Agent Dettiburn, to report what
       he had learned through his investigation. Agent Gaab then
       coordinated with Norristown police only for safety purposes since
       [Wright] was reportedly selling drugs and carrying a firearm.
       There was nothing in the unfolding of these events to suggest
       that Agent Gaab was working with the Norristown police in
       search of criminal activity; rather, Agent Gaab in his role as a
       parole agent, determined that there was evidence that [Wright]
       was violating his parole as a result of his own investigation,
       which never involved the Norristown police. It was only after
       Agent Gaab developed the facts in his investigation that he went
       to the Norristown police for safety reasons. Accordingly, Agent
       Gaab was not a stalking horse for the Norristown police.
       Furthermore, trial counsel was not ineffective in failing to
       present this argument to the suppression court when the
       underlying claim lacks merit.

PCRA Court Opinion, 11/16/2015, at 7-8.

       Our review of the transcript from the suppression hearing confirms the

PCRA court’s findings are supported by the record. Agent Gaab testified he

acquired information from two previously reliable contacts that Wright was

frequently in Norristown without written permission and was carrying a

firearm, both of which were violations of the conditions of his parole.8 See


____________________________________________


8
   To the extent Wright contends Agent Gaab neglected to contact his
supervising agent, whom, Wright claims, gave him permission to travel to
Norristown to see his children, we note Agent Gaab testified he “reviewed all
the notes,” as well as Wright’s “travel pass query,” and found no request for
Wright to travel to Norristown. N.T., 3/28/2013, at 49-50, 55. Moreover,
Wright admitted “normally you have to get a written permission slip” to
travel outside of the approved jurisdiction. Id. at 56.



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N.T., 3/28/2013, at 19-20, 21. Moreover, he also received information from

those contacts that Wright was selling marijuana and conducting gunpoint

robberies. See id. at 21.       Agent Gaab then conducted surveillance and

confirmed the vehicle Wright was driving was in Norristown without written

approval. See id. at 25-26. Thereafter, the agent briefed his supervisor on

the situation, who instructed him to coordinate the parole arrest with the

Norristown Police Department due to the fact Wright was purportedly

carrying a gun.      See id. at 28.       Therefore, although the police were

ultimately   involved    in   the   apprehension     of   Wright,   Agent   Gaab’s

investigation and his subsequent search of Wright, focused on Wright’s

parole violations. See Altadonna, supra, 817 A.2d at 1153 (holding parole

officers were not acting as agents of police; “[a]lthough [the defendant]

cites correctly the ways in which the BNI agents assisted the parole officers

in effectuating the seizure of [him] and the search of the van, the witnesses

testified consistently that the stop and search took place in order to

determine whether [the defendant] had committed a technical violation of

his parole.”).   Accordingly, we conclude Wright’s claim had no arguable

merit, and the PCRA court did not err in finding trial counsel was not

ineffective for failing to raise this meritless claim.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2016




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