J-S42022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 NAFIS ANTUAN FAISON                      :
                                          :
                    Appellant             :   No. 1423 MDA 2017

                 Appeal from the PCRA Order July 13, 2017
   In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0000126-2014


BEFORE:    BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                    FILED DECEMBER 03, 2018

      Nafis Antuan Faison appeals from the order denying him relief under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541–46. Faison asserts

that the PCRA court erred in denying his claim that he was denied effective

assistance of counsel because his trial attorney did not file a pre-trial motion

to suppress. We affirm

      The facts are as follows. In November 2013, the Lycoming County Court

of Common Pleas issued an order under Section 5773 of the Wiretapping and

Electronic Surveillance Control Act, 18 Pa.C.S.A. §§ 5701-5782, authorizing

the disclosure of tracking data on Faison’s cell phone number. See 18

Pa.C.S.A. § 5773. The court issued the order following an application

submitted by the Commonwealth, which included an affidavit of probable

cause written by then-Trooper Robert Lombardo of the Pennsylvania State

Police. (Trooper Lombardo was subsequently made a corporal of the State

______________________________
* Retired Senior Judge assigned to the Superior Court.
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Police). In the affidavit, Corporal Lombardo stated that a warrant existed for

Faison’s arrest on drug charges, and described that during the underlying

investigation, a confidential informant had made four controlled drug

purchases from Faison, whom his customers called “Mickey.” See Affidavit of

Probable Cause in Support of Application for the Disclosure of Mobile

Communication Tracking Information, 11/19/13, at 2. According to Corporal

Lombardo’s affidavit, attempts to locate Faison following the issuance of the

arrest warrant had been unsuccessful. The affidavit asserted that Faison could

be located using the data from a certain telephone number that a parolee had

provided to a probation and parole agent.

      Following the issuance of the Order authorizing the disclosure of Faison’s

cellular data, Corporal Lombardo used the data to determine that Faison was

located at a particular residence in Williamsport. On the afternoon of

December 12, 2013, at the request of Corporal Lombardo, multiple law

enforcement agencies, including the state and local police, began surveilling

that residence in hopes of finding Faison. As trial testimony later established,

Faison was indeed at that location, in the second-floor apartment belonging

to his friend, Demetrius Simpson. Simpson had allowed Faison to stay in the

apartment overnight. Simpson’s nine-year-old son was also in the apartment.

      Over the course of the evening, the police observed several people visit

the second-floor apartment and stay for only a short period of time. Trooper

Lombardo stopped one of these people, Joshua Colley, after Colley left the

apartment. Trooper Lombardo frisked Colley and found a small amount of

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illegal drugs, and arrested him. During the arrest, Colley told Corporal

Lombardo that he had seen Faison inside the apartment. Following the arrest,

Trooper Kenneth Fishel, who had been surveilling the residence, informed

Corporal Lombardo that he had spotted Faison standing outside the door to a

third-floor apartment.

     Corporal Lombardo and multiple law enforcement officers returned to

the apartment building and ascended a staircase to the second floor. Corporal

Lombardo knocked on the door to the second-floor apartment. Faison jumped

out of a second-floor window and fled on foot, and the police entered and

secured the apartment. While the police were in a central room in the

apartment, they observed an un-zippered black backpack containing what

appeared to be bags of cocaine.

     An officer caught Faison and found that he was carrying nearly $4,000

in cash and a small amount of illegal drugs. Simpson, who had answered the

door to the apartment after Corporal Lombardo knocked, was also arrested

and taken for questioning, but ultimately was not charged with any criminal

offenses.

     Several officers stayed in the apartment while Trooper Fishel applied for

a search warrant. During this time, Trooper Lancer Thomas took Simpson’s

son, who was standing outside on the balcony and shivering, back inside the

apartment to find clothing. While doing so, Trooper Thomas also saw the un-

zippered backpack containing bags of cocaine. Trooper Fishel’s search warrant

was granted, and the police searched the apartment and recovered the black

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backpack, which contained over 500 grams of cocaine and a scale; a box in a

closet which contained rubber bands, small plastic bags, a stamp pad, and a

brown piece of paper with heroin residue on it; and a tan jacket with a bag of

cocaine in its right pocket.

        Faison was charged with possession with intent to deliver a controlled

substance1 and related drug offenses. Faison did not file a pre-trial motion to

suppress any evidence at trial. At the conclusion of trial, a jury found Faison

guilty, and the trial court thereafter sentenced him to an aggregate term of

five to ten years’ incarceration.2 We affirmed Faison’s judgment of sentence,

and the Pennsylvania Supreme Court denied allowance of appeal on October

25, 2016.3

        Faison filed the instant PCRA Petition pro se on December 1, 2016,

alleging that his trial counsel was ineffective for failing to file a motion to

suppress the evidence against him, and requesting an evidentiary hearing.

The PCRA court appointed counsel to represent Faison, and on May 10, 2017,




____________________________________________


1   35 P.S. § 780–113(a)(30).

2Faison had his right to direct appeal reinstated nunc pro tunc in November
2015 following his filing of a PCRA petition.

3 See Commonwealth v. Faison, 151 A.3d 1150 (Pa.Super.), appeal denied,
160 A.3d 756 (Pa. 2016). While Faison’s direct appeal was pending, Faison
filed a PCRA petition, which was dismissed as premature by the PCRA court.



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counsel filed a Motion to Withdraw and a Tuner/Finley4 “no merit” letter. On

May 15, 2017, Faison filed a pro se Supplemental PCRA Petition.5

       On June 22, 2017, in an Opinion and Order explaining its reasoning, the

PCRA court granted counsel leave to withdraw and gave Faison notice of its

intentions to dismiss Faison’s Petition in 20 days pursuant to Rule 907 of the

Rules of Criminal Procedure. Faison did not respond to the notice, and the

court denied his Petition on July 13, 2017.

       Faison filed a timely notice of appeal, and raises the following issues:

       [1.] Trial counsel had no reasonable basis for his inactions[.]

       [2.] Trial counsel was constitutionally deficient for failing to file [a]
       motion to suppress evidence obtained in violation of [Faison’s]
       constitutional right where [the] affidavit of probable cause to
       obtain [a] pen register and trap and trace device was insufficient
       as a matter of law and all evidence obtained as a result was
       illegally obtained.

       [3.] Trial counsel was constitutionally defective for failing to
       investigate and file a motion to suppress evidence seized in [the]
       second floor apartment as it was procured as a result of [an] illegal
       search without search warrant.

       [4.] Trial counsel was constitutionally deficient for failing to
       investigate/file [a] motion to suppress [the] affidavit of probable
       cause to [search,] based on false averments contained within.

Faison’s Br. at 4. The Commonwealth did not submit a brief.


____________________________________________


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

5We note that Faison did not obtain leave from the PCRA court to amend his
petition. See Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015).

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      “[I]n reviewing the propriety of an order granting or denying PCRA relief,

this Court is limited to ascertaining whether the evidence supports the

determination of the PCRA court and whether the ruling is free of legal error.”

Commonwealth v. Andrews, 158 A.3d 1260, 1262-63 (Pa.Super. 2017). A

PCRA petitioner is entitled to an evidentiary hearing where the petition raises

an issue of material fact, which, if resolved in the petitioner’s favor, would

justify relief. Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).

      A petitioner is eligible for relief under the PCRA when he pleads and

proves by a preponderance of the evidence that his conviction resulted from

ineffective assistance of counsel. See 42 Pa.C.S.A. § 9543(a)(2)(ii). A PCRA

petitioner will only prevail on a claim that trial counsel was ineffective through

pleading and proving each of the following: “(1) the underlying legal claim is

of arguable merit; (2) counsel’s action or inaction lacked any objectively

reasonable basis designed to effectuate his client’s interest; and (3) prejudice,

to the effect that there was a reasonable probability of a different outcome if

not for counsel’s error.” Commonwealth v. Grove, 170 A.3d 1127, 1138

(Pa.Super. 2017) (quoting Commonwealth v. Andrews, 158 A.3d 1260,

1263 (Pa.Super. 2017). A failure to plead or prove any prong will defeat an

ineffectiveness claim. Id. at 1138.

                                   I. Waiver

      The PCRA court first concluded that Faison waived his right to PCRA

relief under 42 Pa.C.S.A. § 9543(a)(3). See PCRA Court Opinion, filed October


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20, 2017, at 2. In its Rule 1925(a) opinion, the court explained that the claims

were waived because “Faison himself directed his attorney not to pursue pre-

trial motions and instead focus on trying to obtain relief pursuant to Rule 600.”

Id.6

       The PCRA requires that for a petitioner to be eligible for relief, he or she

must prove that “the allegation of error has not been previously litigated or

waived,” 42 Pa.C.S.A. § 9543(a)(3), and states that, “an issue is waived if the

petitioner could have raised it but failed to do so before trial, at trial, . . . on

appeal[,] or in a prior state postconviction proceeding.” Id. at § 9544(b). An

assertion of ineffective assistance of counsel overcomes the bar to waived

issues. Commonwealth v. Lambert, 765 A.2d 306, 324 (Pa.Super. 2000).

       The PCRA court is correct in its conclusion that the unfiled suppression

motion has been waived, but the distinction the PCRA court failed to recognize

is that Faison does not directly advocate for the suppression of evidence, but

argues that trial counsel was ineffective in relation to pursuing a motion to

suppress. Faison has not waived his ineffectiveness claims under Section

9543(a)(3), as he was unable to raise these claims prior to the instant

collateral petition. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.

2013) (holding that aside from certain exceptions not applicable here, claims


____________________________________________


6 Rule 600(B) provides that a criminal defendant is not to be held in pre-trial
incarceration in excess of 180 days, and Rule 600(A) provides that the
Commonwealth shall commence trial within 365 days. See Pa.R.Crim.P.
600(A), (B).

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of ineffective assistance of counsel are to be deferred until collateral review).

We therefore address Faison’s ineffectiveness claims.

                     II. The Cell Phone Data Authorization

       Faison argues that his trial counsel was ineffective for failing to file a

motion to suppress because the affidavit that supported the authorization of

the disclosure of his cell phone data was insufficient to establish probable

cause. According to Faison, the affidavit “contained vague and conclusory

averments” and was based on double hearsay, because the affiant was not

privy to the conversation between the parole agent and the parolee, there was

no information regarding the reliability of the parolee, and there was no basis

given for the parolee’s knowledge that the phone number belonged to Faison.

Faison’s Br. at 19. Faison argues that because the warrant for the tracking

information lacked probable cause, and Faison was arrested using the tracking

information, the evidence recovered at the time of Faison’s arrest was

tainted.7

       The standard for determining whether probable cause to support the

issuance of wiretaps is the same as that used to determine probable cause for

search warrants. See Commonwealth v. Iannelli, 634 A.2d 1120, 1127 (Pa.

1993) (citing Commonwealth v. Doty, 498 A.2d 870, 881-82 (Pa.Super.

1985)). Hearsay alone may form the basis for an affidavit of probable cause


____________________________________________


7 Faison does not argue that the underlying warrant for his arrest lacked
probable cause.

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“as long as the issuing authority has been provided with sufficient information

to make a ‘neutral’ and ‘detached’ decision about whether” probable cause

existed. Commonwealth v. Huntington, 924 A.2d 1252, 1255 (Pa.Super.

2007). The issuing authority is to review the assertions in the affidavit,

“including the ‘veracity’ and ‘basis of knowledge’ of persons suppling hearsay

information,” and “make a practical, common-sense decision” as to whether

probable   cause    exists   under   the   totality   of   the   circumstances.

Commonwealth v. Melilli, 555 A.2d 1254, 1261 (Pa. 1989) (quoting Illinois

v. Gates, 462 U.S. 213, 238 (1983)).

      “In assessing an informant's reliability, a presumption exists that the

information is trustworthy when it has been provided by an identified witness.”

Huntington, 924 A.2d at 1255; see, e.g., Commonwealth v. Klimkowicz,

479 A.2d 1086, 1088 (Pa.Super. 1984) (holding that warrant based on an

affidavit containing double hearsay was valid where the magistrate found the

initial source of information to be reliable). On appeal, we need only to

ascertain that there was a “substantial basis” for the issuing authority to

conclude that probable cause existed. Melilli, 555 A.2d at 1261 (quoting

Gates, 462 U.S. at 238-39).

      Here, the PCRA court determined the affidavit supporting the order for

cell phone tracking data supplied sufficient probable cause to believe that

Faison could be located using information from the telephone number provided

in the affidavit. The court came to this conclusion because “[l]aw enforcement


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obtained reliable information from a known parolee” who was “specifically

identified and known to law enforcement, [and] who could be held accountable

for false information provided to law enforcement.” PCRA Ct. Op. at 3-5

(emphasis in original). To these observations, we add that the affidavit also

provided the name of the parole agent, the date and time of the interview

between the parole agent and parolee, and stated that the parolee told the

parole agent that Faison was “in the Lycoming area and using the street name

of [‘]Mike[’],” which is similar to the name “Mickey” that Faison used during

the controlled drug buys in the underlying investigation leading to the issuance

of the arrest warrant. See Affidavit of Probable Cause in Support of Application

for the Disclosure of Mobile Communication Tracking Information at 2.

      We therefore hold that based on the averments in the Affidavit there

was a substantial basis for the issuing court to conclude that probable cause

existed to support the authorization of the disclosure of the cell phone data.

A motion to suppress on this basis would therefore have been lacking in merit,

and so we affirm the PCRA court’s conclusion that Faison’s trial attorney was

not ineffective for failing to file one.

                    III. The Entry and Protective Sweep

      Faison argues that his trial counsel was ineffective for failing to file a

motion to suppress on the basis that the police illegally entered and searched

Simpson’s apartment before they obtained a search warrant. Faison first

argues on appeal that the PCRA court erred in concluding that Colley


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purchased drugs at the apartment, which was one of the reasons that the

PCRA court found justified the entry of the officers. See PCRA Ct. Op. and

Order, filed 6/22/17, at 6 (stating that law enforcement’s entry was legal

because, in part, “a witness” had just purchased drugs at the apartment).

      Faison did not raise this issue with the PCRA court prior to his appeal,

either in his PCRA Petition or in response to the court’s Opinion and Order

giving notice of its intent to dismiss the Petition, and thus it is waived. See

Pa.R.A.P. 302(a) (providing that issues cannot be raised for the first time on

appeal). Regardless, the level of belief that law enforcement possessed

regarding whether Colley had purchased drugs in the apartment at the time

of their initial entry is of no moment. The police did not claim to have entered

the apartment based on probable cause evidence of drug dealing, but based

on their belief that Faison, for whom they had an arrest warrant, was located

in the apartment. See N.T. at 97 (Trooper Lombardo testifying that the police

entered the apartment because they knew that Faison was inside).

      Next, Faison contends that the police entered the apartment after they

saw Faison leave, and that they had no grounds to do so without exigent

circumstances not of their own creation and articulable circumstances to

support a protective sweep. Faison’s Br. at 27.

      Police do not violate the privacy rights of the subject of an arrest warrant

when they enter the home of a third party, without a search warrant related

to that address, in order to execute the arrest, provided they have a


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reasonable belief that the subject of the arrest warrant is inside or is living

there. See Commonwealth v. Muniz, 5 A.3d 345, 350-52 (Pa.Super. 2010)

(relying on Commonwealth v. Stanley, 446 A.2d 583 (Pa. 1982) and

Commonwealth v. Conception, 657 A.2d 1298 (Pa.Super. 1995)). When

executing an arrest, police may perform a “protective sweep” of their location,

without first obtaining a search warrant, to ensure the absence of any

individuals that may pose a threat to their safety, so long as the officers

possess “a reasonable belief based on specific and articulable facts that the

area to be swept harbors an individual posing a danger to those on the arrest

scene.” Buie v. Maryland, 494 U.S. 325, 337 (1990).

      Faison argues that Steagald v. United States, 451 U.S. 204 (1981),

would have controlled his suppression issue. In Steagald, the United States

Supreme Court held that the police cannot execute an arrest warrant by

entering the home of a third party without a search warrant. Id. at 216.

However, in Steagald, the third party homeowners, the defendants in that

case, raised the issue. Id. at 212. While Steagald controls in that situation,

when the issue of privacy rights is instead raised by the subject of an arrest

warrant who was arrested in the home of a third party, as in the instant case,

the same protections do not apply. See Commonwealth v. Romero, 183

A.3d 364, 379 n.6 (Pa. 2018) (differentiating between cases in which the issue

of entry without a search warrant was raised by the subject of the arrest

warrant or the third-party homeowners, and stating that Steagald controls in


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the latter scenario); Muniz, 5 A.3d at 350-52; Commonwealth v. Martin,

620 A.2d 1194, 1196 (Pa.Super. 1993).

      Here, the PCRA court noted that the police had identified that Faison

was inside the apartment, and “when” Simpson opened the door for the police,

“a runner” jumped out of a second floor window. The PCRA court concluded

that the police “had good reason to secure the apartment” at that point

because they “would be uncertain as to who was at the apartment, and not

all of law enforcement would immediately know whether the fugitive was the

runner or not.” PCRA Ct. Op. at 5.

      The record evidence supports the conclusion that at the time they

approached the apartment, the police reasonably believed that Faison was

inside. The cell data had led them to that location, Colley told Trooper

Lombardo that Faison was in the second floor apartment, and Trooper Fishel

saw Faison standing outside a door of the apartment building.

      Moreover, the evidence demonstrates that the police reasonably

believed that there were multiple people inside the apartment and that the

police entered at approximately the same time “a runner” fled through a

window on the opposite side of the building. Nothing suggests that the police

knew that the “runner” was Faison. Corporal Lombardo testified that after he

knocked on the apartment door and announced that he was a police officer,

one of the other officers stationed around the building “said out loud that he




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observed somebody else in the residence.” Id. at 92-93, 96-97.8 Simpson

opened the door a few minutes later. Id. at 96-97. While Corporal Lombardo

was at the door speaking with Simpson, he “heard a loud bang-like crash

noise,” toward the front of the house, and “the next thing [he knew was that]

someone came over the radio saying an individual was fleeing.” Id. at 93, 97-

98. Corporal Lombardo and other officers then entered the residence. Id. at

98. Trooper Fishel similarly testified “brief chaos erupted” when Faison jumped

out of the window and that half of the officers descended the stairs to chase

him. Id. at 72-73.

       Because the police possessed a reasonable belief that Faison was

located in the apartment, they were permitted to enter in order to execute the

arrest warrant and conduct a protective sweep for other persons. Faison’s

argument that the police should have aborted their plans to enter when some

officers observed a person flee the apartment is meritless, as the two events

occurred simultaneously and it was unclear to the entering officers that it was

Faison who had, in fact, fled.

       Faison next argues that Simpson’s trial testimony established that the

police “searched” the house immediately upon entry, prior to the issuance of

the search warrant.



____________________________________________


8 Because the observation of the other officer was hearsay, it was not admitted
for its truth. See N.T. at 93. Still, we find the observation relevant insofar as
it relates to the beliefs the officers.

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      A protective sweep “is for persons” and “cannot be lengthy or unduly

disruptive.” Commonwealth v. Crouse, 729 A.2d 588, 598 (Pa.Super.

1999). “[P]olice officers may make cursory visual inspections of spaces

immediately adjacent to the arrest scene, which could conceal an assailant,”

and, if articulable facts exist which justify an officer’s fear for the safety of

himself and others, the officer can also search for attackers further from the

place of arrest. Commonwealth v. Taylor, 771 A.2d 1261, 1267 (Pa. 2001).

      Here, the PCRA court stated that the police “secured” the apartment at

the time of their entry. PCRA Ct. Op. at 5. The testimony of law enforcement

officers consistently referred to the initial “search” in the same terms as a

protective sweep. Trooper Thomas testified that after Faison was arrested, he

assisted other law enforcement officers in “securing” the apartment. Id. at

104. Corporal Lombardo testified that after the officers entered the residence,

they “cleared the residence for officer safety.” Id. at 93, 98. Trooper Fishel

did not testify regarding the initial sweep of the apartment, but his affidavit

says the officers “secured” the apartment and occupants. Affidavit at 2. In

contrast, Trooper Thomas’s testimony regarding the full search, after the

search warrant was issued, described the process of drawing a diagram of the

apartment and numbering each room in order to track recovered evidence.

See N.T. at 114-16.

      Faison has offered no facts to contradict the PCRA court’s conclusion

that the officers’ performed a protective sweep, rather than a full search, at


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the time of Faison’s arrest. While Simpson testified that the officers “searched”

the home after their entry, when he was detained in the kitchen area,

Simpson’s testimony did not otherwise indicate that the police exceeded the

bounds permitted by a protective sweep for dangerous persons. See N.T. at

36. Rather, the testimony indicates that Simpson used the term “search” in

its lay meaning, which encompasses the type of search deemed by

Pennsylvania law to be a protective sweep permissible in conjunction with an

arrest.

       Finally, Faison asserts that there was no legal basis for Trooper Thomas’

to re-enter and “search” the apartment when he helped gather clothing for

Simpson’s son. Faison did not argue in his PCRA Petition that Trooper

Thomas’s re-entry was illegal, and thus, this issue is waived. Pa.R.A.P. 302(a).

       Faison has presented no successful arguments for why a motion to

suppress the evidence based on the officers’ initial entry and sweep of the

apartment would have been meritorious, and thus we affirm the PCRA court’s

conclusion that Faison’s trial counsel was not ineffective for failing to pursue

one.

                               IV. The Search Warrant

       Faison’s final argument is that his trial counsel was ineffective for failing

to file a motion to suppress because the affidavit of probable cause supporting

the search warrant contained false statements. Specifically, Faison complains

that the affidavit is false in stating that when Faison ran from the residence,


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members of law enforcement “entered the second floor apartment and

secured the apartment and occupants,” and that “multiple cellular telephones

were observed lying in different locations of the apartment along with a large

amount of suspected cocaine in an unzipped backpack lying on the couch.”

Faison’s Br. at 32 (quoting Affidavit).

      The PCRA court found that Faison’s claim that the affidavit of probable

cause supporting the search warrant contained false averments was without

merit because Faison failed to establish any significant or material

misstatements in the affidavit. Id. PCRA Ct. Op. at 6. Our review confirms the

PCRA court’s assessment. Faison argues that “Simpson’s trial testimony states

the police conducted a search. This testimony is corroborated by other law

enforcement officials who testified that they indeed performed a protective

sweep.” Faison’s Br. at 32. As explained above, the police were permitted to

conduct a protective sweep of Simpson’s apartment, and were not obligated

to ignore the contraband they saw at that time.

      As Faison has not indicated in what way any material statements in the

affidavit supporting the search warrant were false, we affirm the PCRA court’s

conclusion that his trial counsel was not ineffective for failing to file a

suppression motion on those grounds.

      Because Faison has failed to establish that a motion to suppress would

have had merit, we need not consider whether trial counsel had a reasonable




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basis for failing to file one. Grove, 170 A.3d at 1138. We therefore affirm the

order of the PCRA court denying relief.

      Order affirmed.

Judge Bowes joins the Memorandum.

Judge Strassburger files a Concurring Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/03/2018




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