J-S07042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CHAKHANNAH DUPREAY SMITH

                            Appellant               No. 1184 MDA 2014


                   Appeal from the Order Entered July 8, 2014
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000192-2011


BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                 FILED MAY 26, 2015

       Chakhannah Dupreay Smith appeals from the order entered in the

Lycoming County Court of Common Pleas, dated July 8, 2014, dismissing his

first petition filed under the Post-Conviction Relief Act (“PCRA”).1    Smith

seeks relief from the judgment of sentence of four to eight years’

incarceration imposed on September 20, 2011, after pleading guilty to one

count of persons not to possess firearms.2 On appeal, Smith raises a claim

of PCRA court error with respect to the credibility of a witness. Based on the

following, we affirm.

       The PCRA court set forth the factual background as follows:

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 6105(c)(2).
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           On January 27, 2011, Smith was charged with two criminal
     counts. Under Count I, Smith was charged pursuant to 18
     Pa.C.S. § 6105 (Persons Not to Possess a Firearm), a felony in
     the second degree and under Count II he was charged pursuant
     to 35 P.S. [§] 780-113[(a)](31) (Possession of a Small Amount
     of Marijuana), a misdemeanor. At that time, Mr. John G[i]rardi,
     a Pennsylvania State Parole Agent, supervised Smith related to a
     life sentence Smith received in New York State for a drug
     conviction in 1997. Subsequent to the New York conviction,
     Smith was also convicted for drug related charges locally. In
     2004, Smith was convicted in Clinton County for possession with
     intent to deliver. Smith was convicted twice in Lycoming County
     for selling drugs. Smith received a 2-5 year sentence for a drug
     related conviction in Lycoming County on 2007 charges. On
     January 27, 2011, Girardi had been supervising Smith for New
     York State for about 8 months.

                                    …

            While under the supervision of Agent Girardi, Smith
     resided with his mother at 617 High Street in Williamsport,
     Pennsylvania. The residence was subject to a home approval by
     parole and an agreement permitting searches. As the agent
     supervising Smith related to Smith’s life sentence, Girardi was
     well aware of Smith’s criminal convictions for selling and
     possessing drugs. Agent Girardi received 3 tips from 3 separate
     individuals over the course of 3 weeks about Smith using or
     selling drugs. The most recent tip came from an anonymous
     female who left a message stating that Smith was selling drugs.
     On January 27, 2011, Agent Girardi orchestrated a home visit of
     Smith’s residence.      Girardi requested assistance from the
     Williamsport Police to use their[] K-9 drug detection dog.
     (Lycoming parole agents lost their drug detection dog because of
     funding.) Agent Girardi conducted a home visit of Smith’s
     residence.    Girardi knocked on the door and was granted
     permission to enter the residence. The K-9 officer, Officer Roy
     Snyder, did not enter the residence at that time. Upon entry
     into the residence, Girardi smelled marijuana. Shortly thereafter
     Girardi requested that Snyder deploy the drug detection dog.
     Once in the residence, the dog alerted to a black nylon luggage
     bag. A search of the bag revealed an automatic pistol and New
     York State Correction paperwork with Smith’s information. The
     dog also found a partially smoked marijuana cigarette in plain
     view on a dresser in a bedroom at the residence where Smith
     lived.   The cigarette tested positive for marijuana.       As a
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       convicted felon on parole, it was unlawful for Smith to possess a
       firearm and a parole violation to have marijuana at his
       residence.

PCRA Court Opinion, 5/29/2014, at 1-2.

       Following his arrest, Smith filed a petition for writ of habeas corpus,

which was denied on May 25, 2011. On September 20, 2011, Smith pled

guilty to one count of persons not to possess firearms. The possession of

marijuana charge was dismissed. That same day, the court sentenced Smith

to a term of four to eight years’ incarceration.

       Smith did not file a direct appeal, but did file a pro se PCRA petition on

September 21, 2012.           Counsel was appointed, who filed an amended

petition on February 22, 2013.             Subsequently, on April 17, 2013, new

counsel was appointed to represent Smith. Two evidentiary hearings were

held on February 27, 2014, and May 13, 2014. On May 29, 2014, the PCRA

court entered an order and opinion, pursuant to Pa.R.Crim.P. 907, of its

intent to dismiss the petition unless Smith filed an objection within 20 days.3

Smith filed objections to that order on June 13, 2014. Nevertheless, on July

8, 2014, the court dismissed Smith’s PCRA petition.           This timely appeal

followed.4


____________________________________________


3
   We note Rule 907 is reserved for disposition of a PCRA petition where
there is no evidentiary hearing.
4
    On July 17, 2014, the PCRA court ordered Smith to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
(Footnote Continued Next Page)

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      On appeal, Smith raises one issue:

      Did the lower court err when it found testimony of Officer John
      Girardi concerning tips from parolees credible in light of the fact
      that Officer Girardi testified differently at [Smith]’s preliminary
      hearing?

Smith’s Brief at 6.

      Our standard and scope of review for the denial of a PCRA petition is

well-settled:

      [A]n appellate court reviews the PCRA court’s findings of fact to
      determine whether they are supported by the record, and
      reviews its conclusions of law to determine whether they are free
      from legal error. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level.

Commonwealth v. Charleston, 94 A.3d 1012, 1018-1019 (Pa. Super.

2014) (citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

      To be eligible for PCRA relief, [the a]ppellant must prove by a
      preponderance of the evidence that his conviction or sentence
      resulted from one or more of the enumerated circumstances
      found at 42 Pa.C.S. § 9543(a)(2) (listing, inter alia, the
      ineffective assistance of counsel and the unavailability at the
      time of trial of exculpatory evidence, which would have changed
      the outcome of the trial had it been introduced).

Commonwealth v. Koehler, 36 A.3d 121, 131-132 (Pa. 2012).

      We initially note that Smith’s brief is poorly constructed.      Smith’s

argument centers on the assertion that the “PCRA court made a controlling
                       _______________________
(Footnote Continued)

Smith filed a concise statement on July 25, 2014. The PCRA court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on September 22, 2014, relying on its
May 29, 2014, and July 8, 2014, opinions and orders. The Commonwealth
did not file a responsive brief in this matter.


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credibility determination with respect to Officer Girardi’s testimony that was

not supported by the record.” Id. at 11. He points to alleged discrepancies

in statements made by Agent Girardi, while testifying at the February 4,

2011, preliminary hearing and at the May 13, 2014, PCRA hearing, as to the

agent’s reasonable suspicion that permitted the search of Smith’s residence.

Id. at 11-13. On its face, this argument does not qualify under any of the

enumerated errors found at 42 Pa.C.S. § 9543(a)(2) that would make Smith

eligible for relief.

       Nevertheless, we are able to discern from Smith’s amended PCRA

petition, his objections to the Rule 907, and one statement in his brief that

he is actually arguing trial counsel was ineffective for counseling him to

accept a guilty plea rather than to file a motion to suppress based on the

agent’s alleged lack of reasonable suspicion.    Consequently, he complains

that because of counsel’s ineffectiveness, his guilty plea was not voluntary,

knowing, or intelligent because the evidence would have been suppressed if

counsel filed such a motion. See Amended Petition for Post-Conviction

Collateral Relief and Certified Statement of Defendant, 2/22/2013;5 see



____________________________________________


5
    In the amended petition, Smith asserted the following:

       5. [Smith] was denied his constitutionally guaranteed right to
       effective representation when trial counsel advised [Smith] that
       there was no reason to request a suppression hearing.

(Footnote Continued Next Page)

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also Smith’s Brief at 12 (“This [testimony at the preliminary hearing] goes

to the very heart of [Smith]’s ineffective assistance argument because the

issue of reasonable suspicion was never contested.”).

      With respect to a claim of ineffective assistance of counsel, we are

guided by the following:

      It is well-settled that counsel is presumed effective, and to rebut
      that presumption, the PCRA petitioner must demonstrate that
      counsel’s performance was deficient and that such deficiency
      prejudiced him. Strickland v. Washington, 466 U.S. 668,
      687-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674, (1984). This Court
      has described the Strickland standard as tripartite by dividing
      the performance element into two distinct components.
      Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975
      (Pa. 1987). Accordingly, to prove trial counsel ineffective, the
      petitioner must demonstrate that: (1) the underlying legal issue
      has arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) the petitioner was prejudiced by
      counsel’s act or omission. Id. A claim of ineffectiveness will be
      denied if the petitioner’s evidence fails to satisfy any one of
      these prongs.

Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013), cert. denied, 135

S.Ct. 50 (U.S. 2014).
                       _______________________
(Footnote Continued)

      6. The prejudicial ineffectiveness of trial counsel so undermined
      the truth determining process that no reliable adjudication of
      guilt or innocence could have taken place.

      7.     [Smith]’s guilty plea was not voluntary, knowing, and
      intelligent.

      8. [Smith] asserts that he relied upon trial counsel’s advice that
      all evidence was admissible when he entered his plea.

Amended Petition for Post-Conviction Collateral         Relief   and   Certified
Statement of Defendant, 2/22/2013, at 1.


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      In his argument, Smith fails to address any of the three prongs of the

ineffectiveness test directly. Accordingly, we find he fails to overcome the

presumption of counsel’s effectiveness. “Counsel’s assistance is deemed

constitutionally effective once this Court determines that the defendant

has not established any one of the prongs of the ineffectiveness test.”

Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (citation

omitted) (emphasis in original). Therefore, his claim fails.

      Additionally, his argument would merit no relief.        As noted above,

Smith claims the PCRA court erred in finding Agent Girardi’s testimony

credible. With respect to this assertion, we are guided by the following:

      [W]e must defer to the PCRA court’s findings of fact and
      credibility determinations, which are supported by the record.
      [Commonwealth v. Johnson, 600 Pa. 329, 345, 966 A.2d 523,
      532 (2009)] (“The findings of a post-conviction court, which
      hears evidence and passes on the credibility of witnesses, should
      be given great deference.”) (quotation and quotation marks
      omitted). The PCRA court, and not the appellate courts, has
      personally observed the demeanor of the witnesses, and as we
      indicated in Johnson, when a PCRA hearing is held, “we expect
      the PCRA court to make necessary credibility determinations.”
      Id. at 358, 966 A.2d at 539.              See Commonwealth v.
      Basemore, 560 Pa. 258, 293-94, 744 A.2d 717, 737 (2000)
      (offering that particularized assessment of the credibility of
      testimony is essential to resolution of ineffectiveness claims and
      that such assessment “is most appropriately accomplished, in
      the first instance, by the finder of fact”).

Commonwealth v. Spotz, 84 A.3d 294, 319 (Pa. 2014).

      Here, the PCRA found the following:

      The Court … notes that the difference in [Agent Girardi’s]
      testimony at the preliminary hearing as compared to the PCRA
      hearing is consistent with the differences in the purpose of those
      proceedings.    At the preliminary hearing it was determined
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      whether there was sufficient evidence to proceed at trial whereas
      one of the issues at the PCRA hearing was whether the parole
      officer had a reasonable suspicion to search the residence. As a
      result, the testimony elicited may have had a different focus. To
      find in [Smith]’s favor in the PCRA petition, this Court would
      have had to find that Officer Girardi was not credible. Instead,
      this Court found Officer Girard[i]’s testimony credible.

Order, 7/8/2014, at 1-2.

      We agree with the PCRA court’s sound analysis and reiterate that

credibility determinations are vested solely with the PCRA court.         See

Spotz, supra.     Accordingly, we discern no error on the part of the PCRA

court in dismissing Smith’s contention that Agent Girardi was an incredible

witness. Therefore, his sole claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2015




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