J-S16039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

REYNALDO ADOLFO SUAREZ

                            Appellant                  No. 1956 MDA 2014


                   Appeal from the PCRA Order April 28, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0004549-2009


BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                   FILED JUNE 30, 2015

       Reynaldo Adolfo Suarez appeals, pro se, from the order entered on

April 28, 2015, in the Court of Common Pleas of Berks County, denying him

relief on his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. § 9541 et seq.1 In this timely appeal, Suarez claims trial counsel

was ineffective for: (1) failing to challenge the validity of the search warrant,

(2) failing to seek the identity of the confidential informant, and (3) failing to



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1
  The hearing that produced the appealable order was held on October 9,
2014 and this appeal was originally taken from that date.           Due to
inadvertent oversight, no order was actually entered on that date. That has
been corrected with the entry of the April 28, 2015 order. Although the
original appeal was technically premature, the entry of the order rendered
the appeal timely and proper. We have amended the caption accordingly.
J-S16039-15



call certain defense witnesses.2 After a thorough review of the submissions

by the parties, relevant law, and the certified record, we affirm.

        The facts and procedural history of this matter are well known to the

parties and so we have no need to reiterate them herein.3 We refer to and

rely on the factual recitation found in our Court’s memorandum decision

denying Suarez relief in his direct appeal. See Commonwealth v. Suarez,

40 A.3d 182 (Pa. Super. 2011)(unpublished memorandum), at 1-6.

Relevant to this matter, following denial of relief on his direct appeal, Suarez

filed a timely, counseled PCRA petition.         At some point, counsel withdrew

and Suarez went forward pro se. The PCRA court denied Suarez relief and

he appealed to our Court. A panel of our Court vacated the order denying

Suarez relief and remanded the matter for a Grazier4 hearing.          As noted

above, the hearing was held on October 9, 2014, at which time the PCRA

court found Suarez was knowingly, intelligently and voluntarily choosing to

represent himself. The matter was returned to our Court, without first re-

entering an order denying Suarez’s PCRA petition, leaving our Court with
____________________________________________


2
    We have reworded Suarez’s claims for clarity.
3
  On April 22, 2010, a jury found Suarez guilty two counts of possession with
intent to deliver a controlled substance (cocaine and marijuana), two counts
of possession of a controlled substance (cocaine and marijuana), possession
of drug paraphernalia, receiving stolen property, and possession of a firearm
with altered manufacturer’s number. 35 P.S. §§ 780-113(a)(30), (16), and
(32); and 18 Pa.C.S. §§ 3925, 6110.2 respectively.
4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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nothing to review. That oversight was corrected and the matter is ready for

resolution.

      Initially we note our scope and standard of review.

      In PCRA proceedings, an appellate court’s scope of review is
      limited by the PCRA’s parameters; since most PCRA appeals
      involve mixed questions of fact and law, the standard of review
      is whether the PCRA court’s findings are supported by the record
      and free of legal error.

Commonwealth v. Pitts, 981 A.2d 875, 978 (Pa. 2009).

      Additionally, in order to prevail on a claim of ineffective assistance of

counsel, a petitioner is required to prove by a preponderance of the

evidence:

      (1) that the claim is of arguable merit; (2) that counsel had no
      reasonable strategic basis for his or her action or inaction; and,
      (3) that, but for the errors and omissions of counsel, there is a
      reasonable probability that the outcome of the proceedings
      would have been different.

Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999). All claims of

ineffective assistance of counsel begin with the presumption that trial

counsel was effective.    See Commonwealth v. Turetsky, 925 A.2d 876,

880 (Pa. Super. 2007).

      First, Suarez contends the PCRA court erred in determining trial

counsel was not ineffective for failing to file a motion challenging the search

warrant.      Suarez initially claims the PCRA court incorrectly determined

counsel could not have been ineffective because Suarez had no standing to




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challenge the search warrant.5 The PCRA court did not hold Suarez lacked

standing to challenge the search warrant. Indeed, the PCRA court properly

acknowledged the fact that anyone charged with a possessory crime

automatically has standing to challenge the search.           See PCRA Court

Opinion, 10/21/2013, at 4, citing Commonwealth v. Boulware, 876 A.2d

440 (Pa. Super. 2005).6 Rather, the PCRA court determined Suarez lacked

the requisite privacy interest in the residence, having been a casual visitor at

the time the search occurred.          The PCRA court also determined the four-

corners of the warrant provided sufficient probable cause to support the

search warrant.7       Accordingly, we need only examine the PCRA court’s

determination regarding the four-corners of the warrant.

       We note the rules regarding a determination of the existence of

probable cause:
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5
  Suarez labels his claim in terms of lack of standing, although substantively
he also raises arguments addressing reasonable expectation of privacy and a
four-corners challenge.
6
 We are aware that our Supreme Court has since disapproved of Boulware
on other grounds in Commonwealth v. Enimpah, 106 A.3d 695 (Pa.
2014).
7
  For purposes of our discussion, we note that issues of standing or privacy
interest are threshold issues that must be met to substantively challenge the
warrant. Here, the PCRA court assumed that Suarez had established these
issues.   Accordingly, even if trial counsel should have filed a motion
challenging the validity of the search warrant, Suarez would still be required
to prove he would have prevailed on the motion.            If Suarez cannot
demonstrate he would have prevailed, he cannot demonstrate prejudice.
Without prejudice, he is not entitled to relief.



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      “In determining whether the warrant is supported by probable
      cause, the magistrate may not consider any evidence outside the
      four-corners of the affidavit.” Commonwealth v. Sharp, 453
      Pa. Super. 349, 683 A.2d 1219, 1223 (1996) (citations omitted).

         The legal principles applicable to a review of the sufficiency
         of probable cause affidavits are well settled. Before an
         issuing authority may issue a constitutionally valid search
         warrant, he or she must be furnished with information
         sufficient to persuade a reasonable person that probable
         cause exists to conduct a search. The standard for
         evaluating a search warrant is a ‘totality of the
         circumstances’ test as set forth in Illinois v. Gates, 462
         U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 527 (1983), and
         adopted in Commonwealth v. Gray, 509 Pa. 476, 503
         A.2d 921 (1985). A magistrate is to make a ‘practical,
         common sense decision whether, given all the
         circumstances set forth in the affidavit before him,
         including the ‘veracity’ and ‘basis of knowledge’ of persons
         supplying hearsay information, there is a fair probability
         that contraband or evidence of a crime will be found in a
         particular place.’ The information offered to establish
         probable cause must be viewed in a common sense, non-
         technical manner. Probable cause is based on a finding of
         the probability, not a prima facie showing of criminal
         activity, and deference is to be accorded a magistrate's
         finding of probable cause.

      Commonwealth v. Dean, 693 A.2d 1360, 1365 (Pa. Super.
      1997) (citations, quotations, and emphasis omitted).

Commonwealth v. Ryerson, 817 A.2d 510, 513-14 (Pa. Super. 2003).

      The instant affidavit of probable cause related three separate instances

of a confidential informant making controlled buys of narcotics from the

residence in question.   These buys all took place within one month of the

execution of the warrant, the last buy occurring within a few days of the

drug raid. We agree with the PCRA court that the search warrant provided

sufficient indicia of criminal activity taking place at the target residence that


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a reasonable person would conclude there was probable cause that a search

would reveal evidence of that activity.       Therefore, even if Suarez’s trial

counsel had filed a motion to suppress evidence challenging the validity of

the search warrant, such a challenge would have failed. Accordingly, Suarez

cannot demonstrate prejudice and he is not entitled to relief on this issue.

      Suarez’s next claim is that trial counsel was ineffective for failing to file

a motion to disclose the identity of the confidential informant.           Suarez

argues the PCRA court erred in determining he was not entitled to discover

that information.

      “Our standard of review of claims that a trial court erred in its
      disposition of a request for disclosure of an informant’s identity
      is confined to abuse of discretion.” Commonwealth v.
      Washington, 63 A.3d 797, 801 (Pa. Super. 2013).

      Under Pennsylvania Rule of Criminal Procedure 573, a trial court
      has the discretion to require the Commonwealth to reveal the
      names and addresses of all eyewitnesses, including confidential
      informants, where a defendant makes a showing of material
      need and reasonableness:

         (a) In all court cases, except as otherwise provided in Rule
         230 (Disclosure of Testimony Before Investigating Grand
         Jury), if the defendant files a motion for pretrial discovery,
         the court may order the Commonwealth to allow the
         defendant’s attorney to inspect and copy or photograph
         any of the following requested items, upon a showing that
         they are material to the preparation of the defense, and
         that the request is reasonable:

         (i) the names and addresses of eyewitnesses....

      Pa.R.Crim.P. 573(B)(2)(a)(i).

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     The Commonwealth enjoys a qualified privilege to withhold the
     identity of a confidential source. Commonwealth v. Bing, [551
     Pa. 659, 713 A.2d 56 (1998)]; Commonwealth v. Roebuck,
     545 Pa. 471, 681 A.2d 1279, 1283 n.6 (1996). In order to
     overcome this qualified privilege and obtain disclosure of a
     confidential informant’s identity, a defendant must first
     establish, pursuant to Rule 573(B)(2)(a)(i), that the information
     sought is material to the preparation of the defense and that the
     request is reasonable. Roebuck, supra at 1283. Only after the
     defendant shows that the identity of the confidential informant is
     material to the defense is the trial court required to exercise its
     discretion to determine whether the information should be
     revealed by balancing relevant factors, which are initially
     weighted toward the Commonwealth. Bing, supra at 58;
     Commonwealth v. Herron, 475 Pa. 461, 380 A.2d 1228
     (1977).

     In striking the proper balance, the court must consider the
     following principles:

        A further limitation on the applicability of the privilege
        arises from the fundamental requirements of fairness.
        Where the disclosure of an informer’s identity, or of the
        contents of his communication, is relevant and helpful to
        the defense of an accused, or is essential to a fair
        determination of a cause, the privilege must give way. In
        these situations[,] the trial court may require disclosure
        and, if the Government withholds the information, dismiss
        the action.

        [N]o fixed rule with respect to disclosure is justifiable. The
        problem is one that calls for balancing the public interest in
        protecting the flow of information against the individual’s
        right to prepare his defense. Whether a proper balance
        renders nondisclosure erroneous must depend on the
        particular circumstances of each case, taking into
        consideration the crime charged, the possible defenses,

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         the possible significance of the informer's testimony, and
         other relevant factors.

         Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284,
         287 (1967) (quoting Rovario v. United States, 353 U.S.
         53, 60-62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)).

      Commonwealth v. Marsh, 606 Pa. 260-261, 997 A.2d 318,
      321-322 (2010).

Commonwealth v. Watson, 69 A.3d 605, 607-08 (Pa. Super. 2013).

      Here, Suarez has failed to show how his defense was impaired by the

failure to identify the confidential informant (CI).    Suarez complains that

information gleaned from the CI, regarding the identify of those people

inside the target house when the controlled buys took place, was never

tested by cross-examination. However, Suarez was never accused of being

one of the people who took part in any of the controlled buys. Suarez’s guilt

was based upon his being found in the house, in the immediate vicinity of

drugs, while his wife attempted to dispose of those drugs as he tried to flee

the scene by climbing out a window.       Suarez’s defense was based upon a

claim that he was simply a visitor to the home, without any knowledge of

the drug dealing that the Commonwealth alleged took place therein.

Accordingly, the identity of those people in the house during the controlled

buys had no effect upon his defense and the PCRA court did not abuse its

discretion in denying Suarez relief on this issue.

      In his final issue, Suarez claims trial counsel was ineffective for failing

to call certain witnesses at trial. Specifically, Suarez claims his trial counsel


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should have called his mother, Mayra Cruz, and two others, Luis Ramos and

Lisa Green.8      We rely upon the able analysis of the PCRA court for the

resolution of this issue. See PCRA Court Opinion, 10/21/2013, at 7-9. The

parties are directed to attach this portion of the PCRA court opinion in the

event of further proceedings.

       Having found no errors of law or abuse of discretion on the part of the

PCRA court, we affirm the order denying Suarez relief on his PCRA petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2015




____________________________________________


8
  In his Appellant’s brief, Suarez mistakenly refers to Jose Abreu, rather than
Lisa Green as the missing witness. Abreu testified at trial. Our review of the
certified record reveals that none of the missing witnesses were named in
either Suarez’s pro se PCRA petition or in the counseled amended PCRA
petition. Nonetheless, Cruz testified at the PCRA hearing. Ramos and Green
were not identified as potential witnesses until Suarez mentioned their
names in his PCRA testimony.




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