J-S42022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        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.

CONCURRING MEMORANDUM BY STRASSBURGER, J.:

                                                     FILED DECEMBER 03, 2018

        I agree with the Majority that Faison was not prejudiced by trial

counsel’s failure to file a motion to suppress and therefore the PCRA court

order should be affirmed. However, under the circumstances of this case, I

believe it is prudent to address also the reasonable basis prong of the

ineffective-assistance-of-counsel test as an alternative basis for affirming the

order of the PCRA court.

        It is well settled that “to prove counsel ineffective, the [PCRA] 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. A claim of ineffectiveness will be

____________________________________________




*   Retired Senior Judge assigned to the Superior Court.
J-S42022-18


denied if the petitioner’s evidence fails to satisfy any one of these prongs.”

Commonwealth v. Roane, 142 A.3d 79, 88 (Pa. Super. 2016) (internal

citations and quotation omitted).

       My review of the record reveals that trial counsel did not file a motion

to suppress because Appellant himself directed trial counsel not to do so.

According to PCRA counsel, he spoke to trial counsel several times, and trial

counsel communicated the following.

       [Trial counsel] made it clear that [Faison] communicated to [trial
       counsel] that of primary concern to [Faison] was the avoidance of
       delay in this matter. Specifically, [Faison was] focused on Rule
       600 and [his] right to a speedy trial and, therefore, [he] did not
       want any pre-trial motions filed on [his] behalf. It is well within
       [Faison’s] discretion to direct your attorney to not file any pre-trial
       motions.

Turner/Finley Letter, 5/9/2017, at 3 (unnumbered).1

       Based on the foregoing, it is clear that trial counsel had an objectively

reasonable basis not to file a motion to suppress on Faison’s behalf.




____________________________________________


1 Here, the PCRA court misconstrues these statements. The PCRA court states
that “Faison directed his attorney not to file any pre-trial motions in the hopes
of obtaining relief pursuant to Rule 600 and has not raised any dispute as to
that fact.” PCRA Court Opinion, 6/22/2017, at 5; see also, PCRA Court
Opinion, 10/20/2017, at 1 (“On appeal, Mr. Faison raised three issues
involving ineffective assistance of trial counsel for the failure to file pre-trial
motions to suppress when Mr. Faison himself directed his attorney not to
pursue pretrial motions to suppress and instead hoped to become eligible for
relief pursuant to Rule 600.”). See also, Majority at 7 (same). It is clear that
Appellant was not hoping to become eligible for relief pursuant to Rule 600,
nor did he want trial counsel to file a motion to dismiss pursuant to Rule 600;
rather, he was seeking to move his case along as quickly as possible.


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J-S42022-18


Accordingly, I would conclude that Faison’s ineffective-assistance-of-counsel

claim fails for that reason.




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