J-S05033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TROY CESAIRE

                            Appellant               No. 1121 WDA 2014


                 Appeal from the Order Entered June 12, 2014
              In the Court of Common Pleas of Allegheny County
               Criminal Division at No: CP-02-CR-0017508-2008


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                           FILED APRIL 24, 2015

       Appellant, Troy Cesaire, appeals from the June 12, 2014 order denying

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. § 9541-46. We affirm in part, vacate in part, and remand.

       Police arrested Appellant on November 5, 2008 and charged him with

possession of a controlled substance, possession with intent to deliver a

controlled substance, and criminal use of a communication facility. 1 At the

conclusion of a September 10, 2012 bench trial, the trial court found

Appellant guilty of those offenses and immediately imposed an aggregate

three to ten years of incarceration. Appellant filed a timely notice of appeal


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1
    35 P.S. § 780-113(a)(16), (30); 18 Pa.C.S.A. § 7512, respectively.
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from the judgment of sentence, but discontinued that appeal, on appellate

counsel’s advice, on January 2, 2013.

      On January 24, 2013, Appellant filed this timely first PCRA petition.

Appointed counsel filed an amended petition on November 4, 2013.          On

March 28, 2014, the PCRA court issued an order scheduling a hearing a

hearing on a single issue and notifying its intent, pursuant to Pa.R.Crim.P.

907, to deny relief on the remaining issues. The hearing took place on June

12, 2014. At its conclusion, the PCRA court issued an order denying relief.

This timely appeal followed. Appellant raises three arguments:

      1. Whether [Appellant] is entitled to additional credit for the
         period of November 6, 2008 to April 4, 2009 as he was
         detained for that period on account of the instant matter and
         credit for that period was not applied to any other
         case/matter?

      2. Whether direct appeal counsel was ineffective in advising
         [Appellant] to discontinue the [direct appeal] because the
         denial of suppression was meritless when, in fact, said claim
         was arguably meritorious in light of Commonwealth v.
         Washington, 51 A.3d 895 (Pa. Super. 2012)?

      3. Whether the Court of Common Pleas erred and/or abused its
         discretion in not holding an evidentiary hearing on the second
         question presented?

Appellant’s Brief at 3.

      We review an order denying collateral relief to determine whether the

record supports the PCRA court’s findings and whether the court’s ruling was

free of legal error.   Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa.

Super. 2013).    “This Court grants great deference to the findings of the



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PCRA court if the record contains any support for those findings. Further, the

PCRA court’s credibility determinations are binding on this Court, where

there is record support for those determinations.” Id.

      Appellant first argues the PCRA court erred in refusing to award proper

credit for time served.    Appellant asserts his November 5, 2008 arrest

resulted in his incarceration from November 6, 2008 to April 4, 2009 on a

probation detainer. Appellant also asserts he has not received credit toward

any sentence for that time. This issue implicates the legality of Appellant’s

sentence, and therefore is not waivable. See Commonwealth v. Menezes,

871 A.2d 204, 207-08 (Pa. Super. 2005), appeal denied, 890 A.2d 1057 (Pa.

2005).   The Commonwealth concedes as much.         Commonwealth’s Brief at

14. Likewise, this issue is cognizable under the PCRA. Commonwealth v.

Davis, 852 A.2d 392, 399-400 (Pa. Super. 2004), appeal denied, 868 A.2d

1197 (Pa. 2005); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super.

2004).

      Notwithstanding     the   foregoing,   the   Commonwealth     raises     a

jurisdictional challenge we must address before we reach the merits.

Appellant did not plead this issue in his pro se petition or amended,

counseled petition.   Rather, he raised it for the first time on appeal.     The

Commonwealth argues Appellant’s failure to plead this issue in a timely




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PCRA petition or amended petition2 deprived the PCRA court of jurisdiction to

award relief. In effect, the Commonwealth argues Appellant’s introduction of

this issue in a supplemental Pa.R.A.P. 1925(b) statement amounts to an

untimely, serial PCRA petition.

       Well-settled precedent provides that a collateral challenge to the

legality of a sentence must meet the PCRA’s jurisdictional timeliness

requirements.      Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super.

2005) (en banc), appeal denied, 917 A.2d 844 (Pa. 2007).               Thus, the

question before us is whether Appellant’s failure to plead this issue in a

timely petition or amended petition deprived the PCRA court of jurisdiction.

The Commonwealth relies on Commonwealth v. Williams, 900 A.2d 906

(Pa. Super. 2006) (en banc), appeal denied, 916 A.2d 1102 (Pa. 2007).

Williams      is   inapposite.       In   Williams   and   its   companion   case,

Commonwealth v. Jacobs, 900 A.2d 368 (Pa. Super. 2006) (en banc),
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2
   In this case, Appellant filed his amended counseled petition within one
year of the finality of his judgment of sentence.          To the extent the
Commonwealth suggests an amended petition cannot include new claims if
the petitioner files it outside of the one-year deadline for the original
petition, the Commonwealth is incorrect. Nothing in the PCRA statute or the
applicable Rules of Criminal Procedure requires a petitioner to file an
amended petition within one year of the finality of the judgment of sentence.
Indeed, Rule 905 permits amendment “at any time” and provides
amendment “shall be freely allowed to achieve substantial justice.”
Pa.R.Crim.P. 905(A).      The instant case is not one in which the
Commonwealth can allege “inordinate delay” between the original and
amended petitions. See Commonwealth v. Weatherhill, 24 A.3d 435,
439 (Pa. Super. 2011), appeal denied, 63 A.3d 777 (Pa. 2013).




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appeal denied, 917 A.2d 313 (Pa. 2007), this Court held the right of

allocution does not implicate the legality of a sentence and is therefore

waivable. Williams, 900 A.2d at 911. Accordingly, the petitioner’s failure

to include it in his PCRA petition in accord with Pa.R.Crim.P. 902(B)3 resulted

in waiver. Id. Moreover, the petitioner could not have avoided waiver by

including the issue in a Pa.R.A.P. 1925(b) statement. Id.

       The   instant    case    is   distinguishable   because   binding   precedent

establishes that Appellant’s issue implicates the legality of his sentence.

Though Appellant did not raise this issue until after he filed his appeal, he

filed a timely PCRA petition and thereby invoked the PCRA court’s jurisdiction

over issues cognizable under the PCRA statute.             We therefore reject the

Commonwealth’s jurisdictional challenge to Appellant’s first issue.

       The PCRA court deemed this issue moot, noting Appellant was released

on parole on January 21, 2014.            We disagree.   “A case is ‘moot’ when a

determination is sought on a matter which, when rendered, cannot have any

practical effect on the existing controversy.” Commonwealth v. Nava, 966

A.2d 630, 632-633 (Pa. Super. 2009).             Appellant asserts this issue is not

moot because his consecutive sentence of probation will start later than it

otherwise would absent proper credit for time served.              In addition, we
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3
   “Each ground relied upon in support of the relief requested shall be stated
in the petition. Failure to state such a ground in the petition shall preclude
the defendant from raising that ground in any proceeding for post-conviction
collateral relief.” Pa.R.Crim.P.902(B).



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observe that proper credit for time served would be relevant in the event of

a parole revocation. For these reasons, a decision on this issue will indeed

have practical effect for Appellant and we decline to dismiss the issue as

moot.

        Turning finally to the merits, the PCRA court’s Pa.R.A.P. 1925(a)

opinion states only that Appellant is not entitled to credit for time served on

an unrelated sentence.    PCRA Court Opinion, 11/4/14, at 6-7.      From that

statement, we infer Appellant has not received credit toward the instant

sentence for the time he served from November 6, 2008 to April 4, 2009 on

the probation detainer.   Section 9760 of the Judicial Code requires a trial

court to give the defendant credit against his sentence for time served in

prison prior to trial, during trial, pending sentence and pending the

resolution of an appeal. 42 Pa.C.S.A. § 9760(1). Further, § 9760 requires a

trial court to give credit for time served where a defendant eventually is

incarcerated on charges other than those leading to his arrest. 42 Pa.C.S.A.

§ 9760. Where, as here, an arrest for a new offense results in imprisonment

on a probation detainer, the trial court must credit the time served toward

either the sentence resulting from the new offense, or a sentence imposed

after revocation of probation. Commonwealth v. Smith, 853 A.2d 1020,

1025-26 (Pa. Super. 2004). We cannot discern from the record before us

whether Appellant has received credit for the time in dispute. We therefore




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remand to the PCRA court for reconsideration of this issue in accordance

with this memorandum.

      Next, Appellant argues his appellate counsel was ineffective for

advising him to discontinue his direct appeal and file a PCRA.           Appellant

believes he had a meritorious challenge to the trial court’s denial of his

pretrial suppression motion and that this Court would have vacated his

judgment of sentence and remanded for a new trial.

      To prevail on this claim, Appellant must establish (1) the underlying

issue is of arguable merit; (2) counsel had no reasonable strategic basis for

his action or inaction; and (3) counsel’s ineffectiveness prejudiced Appellant.

Commonwealth v. Baumhammers, 92 A.3d 708, 719 (Pa. 2014). Failure

to establish any one of these three prongs is fatal to Appellant’s claim. Id.

      Appellant relies on Commonwealth v. Washington, 51 A.3d 895

(Pa. Super. 2012) to establish his claim is of arguable merit.                  In

Washington, the defendant fled unprovoked just as plain clothes police

officers approached in an unmarked police vehicle.          Id. at 899.        The

defendant was in a high crime area at the time of his flight.            Id.   The

defendant fled the scene before he had time to observe a badge around the

neck of an officer who exited the unmarked police car. Id. Since the record

failed to establish the defendant knew he was fleeing police, this Court held

the defendant’s flight did not justify an investigative detention. Id.




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     Instantly, as in Washington, Appellant fled from plain clothes police

officers patrolling in an unmarked police vehicle. He argues Washington is

controlling because the record contains no evidence to support a finding that

Appellant knew he was fleeing police.        The record does not support

Appellant’s argument.    Officer Thomas Gault (“Officer Gault”), a narcotics

officer for the City of Pittsburgh police department, was patrolling a high

crime area in McKeesport when he came upon Appellant. N.T. Suppression,

9/10/12, at 5-6.    As Officer Gault was driving with the vehicle’s windows

open, he “heard somebody yell loud and clear them boys, them boys, which

is a signal that we’re coming.” Id. at 7. The prosecutor asked: “When you

say ‘a signal that we’re coming,’ who do you mean by ‘we’re?’” Id. Officer

Gault replied:   “That the police, the undercover police in particular.”   Id.

Immediately thereafter, Officer Gault turned a corner in his vehicle and

observed Appellant. Id. at 8. Appellant put his right hand in his pocket and

quickly walked away, glancing at the unmarked car several times. Id. at 8-

9, 11. When Officer Gault stopped the car and stepped out with his badge

around his neck, Appellant ran. Id. at 9, 11-12.

     The trial court denied Appellant’s suppression motion based on

Appellant’s unprovoked flight after an unidentified bystander shouted out a

warning of the presence of undercover police officers. Id. at 57. In other

words, the trial court credited Officer Gault’s testimony and found as fact

that Appellant knew he was fleeing from police.        On direct appeal, an


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appellate court defers to a suppression court’s findings of fact so long as the

record supports them:        “Our review is limited to determining whether the

record supports the findings of fact of the suppression court and whether the

legal conclusions drawn from those findings are correct.” Commonwealth

v. Briggs, 12 A.3d 291, 320 (Pa. 2011), cert. denied, 132 S. Ct. 267

(2011).   Here, the record supports the suppression court’s finding that

Appellant was aware of police presence when he fled. As such, Washington

is inapposite. Appellant, relying solely on his purported lack of knowledge of

the presence of police, has failed to establish arguable merit in support of his

assertion of ineffective assistance of counsel. Appellant’s second argument

lacks merit.

      Finally, Appellant argues the PCRA court erred in declining to conduct a

hearing regarding the issue we have just addressed. Rule 907 permits the

PCRA court to deny collateral relief without a hearing if “the judge is satisfied

[…] that there are no genuine issues concerning any material fact and that

the   defendant   is   not     entitled   to    post-conviction   collateral   relief.”

Pa.R.Crim.P. 907(1). Given our analysis of Appellant’s second argument, we

do not believe a hearing on that issue would shed light on a genuine issue of

material fact. A review of the suppression transcript and the applicable law

provided the PCRA court with a sufficient basis to deny relief on that issue.

Appellant’s third and final argument also lacks merit.




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      In summary, we vacate the PCRA court’s order insofar as it denied

relief on Appellant’s request for credit for time served.   On remand, the

PCRA court must assess whether Appellant received proper credit for the

period of incarceration from November 6, 2008 to April 4, 2009. In all other

respects, we affirm the PCRA court’s denial of relief.

      Order affirmed in part and vacated in part.           Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015




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