J-S45014-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

TERRY LIGHTY,

                          Appellant                    No. 297 MDA 2015


                Appeal from the PCRA Order February 5, 2015
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0000893-2011


BEFORE: BOWES, WECHT, AND FITZGERALD * JJ.

MEMORANDUM BY BOWES, J:                         FILED SEPTEMBER 02, 2015

       Terry Lighty appeals the order entered on February 5, 2015, wherein

the trial court denied his petition for post-conviction relief. We affirm.

       Appellant was charged and convicted of one count of burglary of an

occupied structure and one count of theft by unlawful taking. These charges

stemmed from Appellant’s unauthorized entry into an occupied residence at

136 North Mary Street in Lancaster, Pennsylvania on January 18, 2011. The

victim testified that she awoke to find Appellant in her house and that he

told her that he was going to take her television. Appellant also warned the

victim not to call the police because he had “friends downstairs” and he

knew where she lived.


*
    Former Justice specially assigned to the Superior Court.
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        The victim’s neighbor, Brian Manning, noticed Appellant leaving the

residence carrying some of the victim’s property.     Mr. Manning called 911

immediately after witnessing this and provided the police with a detailed

description of Appellant’s clothing and physical characteristics. A fresh snow

was falling on the night of the burglary. Sergeant Philip Berkheiser tracked

a single set of boot prints leading away from the crime scene down Mill

Avenue, until they reached 500 West Orange Street, where he noticed other

sets of footprints in the snow. N.T., 11/08/11, at 156-160. While tracking

these    prints,   Sergeant Berkheiser   located an   abandoned box which

contained an air purifier and palm sander owned by the victim.

        After Mr. Manning provided him with the suspect’s description as a

“black male . . . wearing a gray hoody, gray pants, a blue vest, and gloves,”

Officer Ben Bradley sent out a police radio call to all officers at 1:00 a.m.

N.T., 11/07/11, at 95. Sergeant William Hickey received this call and, just

before 2:00 a.m., he observed a black male, who matched Mr. Manning’s

description, walking through the parking lot where his patrol vehicle was

parked and heading toward the convenience store across the street. Id. at

99. Officer Chris Genetti arrived to back up Sergeant Hickey and the two

approached Appellant and identified themselves. Id. at 101-102. Sergeant

Hickey explained to Appellant that a burglary had just occurred at a nearby

house and that he matched the suspect’s description. Id. He then asked




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Appellant if would step outside the store so that he could ask him some

questions about the incident. Id.

       During this period of questioning, Sergeant Hickey learned Appellant’s

identity and that he claimed to be staying at 602 West King Street,

Apartment 5, with a person named “B” or “Bob.” Id. at 101, 104. Appellant

was patted-down for weapons, and police officers took photographs of his

clothing and boots. Id. at 106-108. Sergeant Hickey contacted the officers

who had been at the crime scene and asked if they could bring anyone who

could identify the suspect to the convenience store.       Id. at 102.   Mr.

Manning was brought to the store and was allowed to view Appellant from

inside a police vehicle. Id. He identified Appellant’s clothing as matching

that of the suspect but was not able to conclusively state that Appellant was

the person who he observed at the crime scene. Id. at 103.

       Appellant’s photograph was later included in a photo array shown to

Willy Robertson, who occupied an apartment in the same building in which

Appellant claimed that he was staying. Mr. Robertson identified Appellant as

the person who had brought him a television the same night of the burglary.

Id. at 111. This television was recovered from Mr. Robertson’s apartment

by police and was identified as the same one stolen from the victim. Id. at

108.




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        Appellant’s trial counsel failed to file a suppression motion seeking to

preclude the introduction of evidence obtained during Appellant’s Terry1

stop outside the convenience store. Consequently, Appellant’s statements,

items seized, and the photographs taken from this encounter with the police

were later offered into evidence at trial.

        A jury convicted Appellant of burglary of an occupied structure and

theft by unlawful taking. The trial court imposed the mandatory minimum

sentence of twenty-five to fifty years imprisonment pursuant to 42 Pa.C.S. §

9714(a)(2) because Appellant had a prior record that included at least two

crimes of violence.      We affirmed the judgment of sentence on August 14,

2012, and our Supreme Court denied allowance of appeal on April 16, 2013.

Commonwealth v. Lighty, 60 A.3d 570 (Pa.Super. 2012) (unpublished

memorandum), appeal denied, 64 A.3d 631 (Pa. 2013).

        On December 24, 2013, Appellant filed a timely pro se PCRA petition.

Appointed counsel filed an amended PCRA petition that alleged Appellant’s

trial counsel provided ineffective assistance for failing to file an omnibus

pretrial motion seeking to suppress the evidence derived from his detention

outside of the convenience store and the search of his person.        Appellant

requested that the PCRA court vacate his sentence and remand the matter

for a new trial without the allegedly tainted evidence.
____________________________________________


1
    Terry v. Ohio, 392 U.S. 1 (1968).



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      An evidentiary hearing was held on Appellant’s PCRA petition on April

16, 2014. Appellant’s trial counsel was the only witness and testified as to

why he had not filed a suppression motion. He explained:

      [The police] asked him to come outside; he voluntarily went with
      them. They returned all his personal belongings to him. There
      was no statement made by him at the time and he, again,
      basically volunteered to when they asked him to go with them,
      or at least outside with them.

PCRA Hearing, 05/16/14, at 9. Counsel further elucidated that he received

the police report prior to trial and reviewed the report’s account of the

interaction to determine whether a suppression motion was warranted. Id.

at 10-12. He continued that it was his typical trial strategy in criminal cases

to identify suppression issues, and when he discovered a potentially

meritorious challenge, he pursued it. Id. at 11-12. He estimated that he

files suppression motions in approximately thirty-five percent of the cases

that he tries, but he did not believe that the facts and circumstances of this

encounter   between    Appellant   and   the   police   would   be   subject   to

suppression. Id at 11-14.      Specifically, he agreed, “that it was a lawful

investigative detention supported by reasonable suspicion[.]” Id. at 13.

      The PCRA court denied relief on February 5, 2015, on the grounds that

Appellant, “failed to demonstrate by a preponderance of the evidence that

[counsel’s failure to file a] motion to suppress rises to the level of a claim of

arguable merit,” because trial counsel’s testimony indicated that he had

done the necessary investigation of Appellant’s interaction with the police

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before determining that there were no meritorious suppression issues. PCRA

Court Opinion, 02/15/15, at 6, 10. Appellant filed a timely notice of appeal.

      Appellant presents a single issue for our review:

      Whether the Court erred in denying post-conviction relief where
      trial counsel was ineffective in failing to seek suppression of the
      fruits of an illegal search, when the police did not have sufficient
      cause to detain and interrogate Appellant, or to search him for
      incriminating evidence?

Appellant’s brief at 4.

      In order to prevail on his ineffective assistance of counsel claim,

Appellant must show that his trial counsel provided ineffective assistance.

We have previously held that:

      This Court’s standard of review regarding an order denying a
      petition under the PCRA is whether the determination of the
      PCRA court is supported by the evidence of record and is free of
      legal error. Commonwealth v. Halley, 870 A.2d 795, 799 n. 2
      (Pa. 2005). The PCRA court’s findings will not be disturbed
      unless there is no support for the findings in the certified record.
      Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.
      2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007).

      For Appellant to prevail on a PCRA claim for ineffectiveness of counsel,

Appellant must establish by a preponderance of the evidence: (1) that the

underlying claim has merit; (2) that there was no reasonable basis for

counsel’s conduct or lack thereof; and (3) that Appellant suffered prejudice

as a result of counsel’s conduct or lack thereof. Commonwealth v. Laird,

__ A.3d __, 2015 WL 4401561 at *3 (Pa. 2015). We are also reminded that



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counsel is presumed effective, and the burden of establishing counsel’s

ineffectiveness always lies with Appellant. Commonwealth v. Balodis, 747

A.2d 341, 334 (Pa. 2000).

      In Commonwealth v. Reed, 19 A.3d 1163, 1166 (Pa.Super. 2011),

this Court highlighted the differences between the three levels of police

interaction with a person. We also held that each level requires a different

amount of justification. Id. The three levels of interaction between police

and citizens under search and seizure laws are the “mere encounter,”

“investigative detention,” and “custodial detention.” Id.

      The first level of interaction is the ‘mere encounter’ (or request
      for information) which need not be supported by any level of
      suspicion, but carries no official compulsion to stop or respond.
      The second, an ‘investigative detention’ must be supported by
      reasonable suspicion; it subjects a suspect to a stop and period
      of detention, but does not involve such coercive conditions as to
      constitute the functional equivalent of an arrest. Finally, an
      arrest or ‘custodial detention’ must be supported by probable
      cause.

Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005)

(citation omitted).

      The determination of whether or not a person can be considered to

have been “seized” by police requires the court to consider whether the

citizen’s movement was restrained in some way by means of physical force

or a show of authority. Commonwealth v. Strickler, 757 A.2d 884, 887

(Pa. 2000).   Instantly, there is nothing in the record which suggests that

Appellant’s movement was restrained at the outset of questioning. Appellant

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voluntarily agreed to go outside after Sergeant Hickey and Officer Genetti

approached    him,   identified   themselves,   indicated    that   they   were

investigating a burglary in the area, and asked if he would step outside with

them for questioning.    N.T., 11/07/11, at 101-102.         At this point, the

interaction between Appellant and police witnesses remained a mere

encounter and he was under no compulsion to comply with the officers’

request to step outside or provide them with any information.

      The Commonwealth mistakenly claims that Appellant provides no

factual or evidentiary basis from which we can assume that this mere

encounter became an investigatory detention.      However, once the officers

began to conduct a pat-down search for weapons and use a camera to take

photographs of Appellant’s appearance and attire, we find that, “the

encounter escalated into an investigatory detention.”       Commonwealth v.

Guess, 53 A.3d 895, 901 (Pa.Super. 2012).

      Examples of circumstances that might indicate a seizure, even
      where the person did not attempt to leave, would be the
      threatening presence of several officers, the display of a weapon
      by an officer, some physical touching of the person of the
      citizen, or the use of language or tone of voice indicating that
      compliance with the officer’s request might be compelled.

Commonwealth v. McClease, 750 A.2d 320, 324-325 (Pa.Super. 2000)

(citation omitted)

      An investigatory detention requires a reasonable belief by the officers

that criminal activity was afoot.     In Commonwealth v. Tam Thanh



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Nguyen, __A.3d __, 2015 WL 1883050 (Pa.Super. 2015), we recently

reiterated,

      Reasonable suspicion exists only where the officer is able to
      articulate specific observations which, in conjunction with
      reasonable inferences derived from those observations, led him
      reasonably to conclude, in light of his experience, that criminal
      activity was afoot and that the person he stopped was involved
      in that activity.

Id. at *5 (citation omitted).    We continued, “this Court must make an

objective inquiry, namely, whether the facts available to the officer at the

moment of the intrusion warrant a man of reasonable caution in the belief

that the action taken was appropriate.” Id. (citation omitted).

      Appellant relies on Commonwealth v. Hicks, 253 A.2d 276 (Pa.

1969), in support of his claims that his investigatory detention by the

officers lacked the requisite reasonable suspicion. Forty-five minutes after a

reported attempted burglary, the defendant therein was detained and

subjected to a pat-down search as he was walking on the sidewalk four

blocks from where the crime occurred.        The victims, who reported the

burglary via a 911 call, described the suspect as a thirty-year-old black male

with a mustache, wearing a brown coat. The defendant lacked a mustache,

but was black, in his thirties, and wearing a “beige or light colored jacket.”

Id. at 278. The police officers continued to hold the defendant following the

pat-down to enable the victims to arrive and positively identify the suspect.

Our Supreme Court ultimately found that the mere fact that the defendant



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was black and in his thirties was not enough to establish reasonable

suspicion that he committed the crimes.

       Appellant also relies upon Commonwealth v. Berrios, 263 A.2d 342

(Pa.   1970),    where   the   Pennsylvania   Supreme   Court   invalidated    an

investigative detention of two men based on their respective races.           The

police officers in Berrios had received information about a shooting and

received a generalized description that the suspects were two black males in

dark clothing and one Hispanic male in light clothing.      Id. at 344.       The

officers proceeded to patrol the nearby area searching for the suspects, and

twenty minutes later, observed a black man and a Hispanic man walking

together three blocks from the crime scene. Id. The men were stopped by

the officers and subjected to an investigatory detention.       Id.   The Court

found that the description of the defendants’ races and general color of their

clothing was insufficient to raise a reasonable suspicion to justify their

detention. Id.

       Instantly, Appellant asserts that the rulings in Hicks and Berrios

conclusively illustrate that there were insufficient facts for Sergeant Hickey

to form a reasonable suspicion that Appellant was involved in the Mary

Street burglary just because he was black and wore clothing that was similar

to the witness’s description. Appellant mischaracterizes the difference in the

level of specificity between the descriptions given of the suspects in Berrios

and Hicks, and the suspect’s description in the present case. In contrast to

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the generalized descriptions of the respective suspects in those two cases,

the eyewitness’s description of the suspect in the instant case matched the

color and type of almost every piece of clothing that Appellant was wearing.

      Appellant was observed by Sergeant Hickey entering a convenience

store only four blocks from the crime scene an hour after the burglary had

occurred.   N.T., 11/07/11, at 99.    Sergeant Hickey also noticed Appellant

was wearing gray sweatpants, a gray hooded sweatshirt, a dark vest, and

tan boots, which identically matched the description of the burglary suspect

provided by the eyewitness.    Id.    Sergeant Hickey testified that, prior to

Appellant’s appearance at the convenience store, he had not seen any other

individuals dressed in any type of clothing that even remotely matched this

description. Id. at 100.   Due to these circumstances, we concur with the

trial court’s opinion that, from the beginning of Appellant’s interaction with

police, Sergeant Hickey’s suspicions were much more reasonable than those

of the officers in Hicks and Berrios.          Moreover, Appellant was not

immediately detained based on Sergeant Hickey’s observations of his

clothing, as was the defendant in Hicks.      In fact, Appellant acquiesced to

the officers’ request to go outside the store and answer some questions

about the burglary. Id. at 102.

      This Court has previously found that the combination of a defendant

matching the physical description of a suspect, coupled with the fact that no

other individuals in the area fit the description, and nervous or anxious

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behavior during questioning in the mere encounter stage of police interaction

are all relevant factors in an officer’s reasonable suspicion determination.

Guess, supra.     We find that it is entirely reasonable for trial counsel to

conclude that Appellant’s behavior prior to the pat-down search, in

combination with the fact that his attire directly matched the description of

the suspect given by Mr. Manning, enhanced Sergeant Hickey’s suspicions

and justified his investigatory detention.

      Upon careful review of the evidence, we concur with the PCRA court’s

finding that Appellant has failed to demonstrate that trial counsel provided

ineffective assistance by not raising a motion to suppress the evidence

presented by the Commonwealth at trial. As a result, Appellant has failed to

prove one of the three required elements of the established test for a PCRA

claim regarding ineffective assistance of counsel. Since counsel cannot be

considered ineffective for failing to raise a claim that is without merit,

Douglas, supra, Appellant is not entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/2/2015


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