J-S11041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :        IN THE SUPERIOR COURT OF
                                             :              PENNSYLVANIA
                   Appellee                  :
                                             :
             v.                              :
                                             :
KEVIN O. BLENMAN,                            :
                                             :
                   Appellant                 :              No. 802 MDA 2014

             Appeal from the PCRA Order entered on April 21, 2014
               in the Court of Common Pleas of Lebanon County,
                 Criminal Division, No. CP-38-CR-0000358-2010

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED FEBRUARY 19, 2015

     Kevin O. Blenman (“Blenman”) appeals from the Order denying his

first Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     The PCRA court thoroughly set forth the relevant factual and

procedural    history   underlying   this   appeal   in   its   Opinion,   which   we

incorporate herein by reference. See PCRA Court Opinion, 6/1/14, at 3-7.1, 2

     On appeal, Blenman presents the following issues for our review:

       I.    Whether trial counsel was ineffective for:


1
  On direct appeal, this Court affirmed Blenman’s judgment of sentence.
See Commonwealth v. Blenman, 48 A.3d 479 (Pa. Super. 2012)
(unpublished memorandum). Blenman did not file a petition for allowance of
appeal in the Pennsylvania Supreme Court.
2
   At trial, Blenman was represented by Nicholas Sidelnik, Esquire
(hereinafter referred to as “trial counsel”). Trial counsel also represented
Blenman in his direct appeal.
J-S11041-15

         a. Failing to show the video [taken by the arresting
            officer’s dashboard camera] at the pre-trial hearing … to
            use the video to impeach the officer’s testimony[?]

         b. Withholding discovery materials from [Blenman] in the
            form of a video of what happened on the day of
            [Blenman’s] arrest[?]

         c. Failing to challenge the reliability of the dog handler and
            the dog sniff that was conducted[?]

         d. Failing to consult with [Blenman] regarding his appeal,
            thereby creating a deficiency in [Blenman’s] appellate
            brief[?]

         e. Failing to properly investigate [a] witness,          who
            ultimately perjured herself during trial[?]

Brief for Appellant at 4 (issues renumbered for ease of disposition,

capitalization omitted).

      The applicable standards of review regarding the denial of a PCRA

petition and ineffectiveness claims are as follows:

             Our standard of review of a PCRA court’s denial of a
      petition for post[-]conviction relief is well-settled: We must
      examine whether the record supports the PCRA court’s
      determination, and whether the PCRA court’s determination is
      free of legal error.   The PCRA court’s findings will not be
      disturbed unless there is no support for the findings in the
      certified record.

                                 ***

             It is well-established that counsel is presumed to have
      provided effective representation unless the PCRA petitioner
      pleads and proves all of the following: (1) the underlying legal
      claim is of arguable merit; (2) counsel’s action or inaction lacked
      any objectively reasonable basis designed to effectuate his
      client’s interest; and (3) prejudice, to the effect that there was a
      reasonable probability of a different outcome if not for counsel’s
      error. The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.

                                  -2-
J-S11041-15

      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(citations omitted).

      Blenman first argues that trial counsel was ineffective for failing to

show at the pretrial hearing the video of the stop and arrest taken by

Trooper Robert Claar’s (“Trooper Claar”) dashboard camera (hereinafter

referred to as “the video”), in order to impeach Trooper Claar’s credibility.

See Brief for Appellant at 14-16. According to Blenman, trial counsel should

have used the video because there were inconsistencies between it and

Trooper Claar’s pretrial hearing testimony. Id. at 15-16.

      In its Pa.R.A.P. 1925(a) Opinion, the PCRA court cogently addressed

Blenman’s ineffectiveness claim, and found that trial counsel had good

reason for not showing the video at the pretrial hearing, because to do so

would have been a “fruitless venture.” See PCRA Court Opinion, 6/1/14, at

10-12. The PCRA court’s determination and rationale are supported by the

record, and we therefore affirm on this basis concerning Blenman’s first

ineffectiveness challenge. See id.

      Next, Blenman contends that trial counsel was ineffective for ignoring

Blenman’s repeated requests to view the video to “assist in his own

defense[.]”   Brief for Appellant at 8.     According to Blenman, he had

expressed to trial counsel before the pretrial hearing that he wanted to view

the video in order to highlight inconsistencies between it and Trooper Claar’s



                                 -3-
J-S11041-15

account of the stop. Id. at 8, 9. Blenman asserts that trial counsel did not

inform him of the existence of the video until the day before the pretrial

hearing, and Blenman did not get to see the video until several months later,

after the trial court had denied his Motion to Suppress. Id. at 9, 12.

      In its Opinion, the PCRA court addressed and rejected Blenman’s

claim, determining that trial counsel was not ineffective because, inter alia,

Blenman’s viewing of the video prior to the pretrial hearing would not have

had any impact on its outcome, or on the outcome of the trial. See PCRA

Court Opinion, 6/1/14, at 12-14.          We agree with the PCRA court’s

determination and rationale, which is supported by the record, and affirm on

this basis with regard to this issue. See id.

      In his third issue, Blenman argues that trial counsel was ineffective for

failing to challenge at trial the reliability of the K-9 dog, Draco, and the dog

sniff of his vehicle.    See Brief for Appellant at 16-18.   Blenman contends

that the dog sniff was unreliable because Draco failed to alert to a small

amount of marijuana that was contained in the vehicle’s glove compartment.

Id. at 17. Additionally, Blenman asserts that trial counsel was ineffective for

failing to challenge the qualifications of Draco and his handler, Trooper

Claar. Id. at 18.

      The PCRA court addressed this claim in its Opinion, and determined

that trial counsel properly concluded that a challenge to Draco’s reliability

would have been a “meritless issue” that would have had no impact upon

the jury’s verdict.     See PCRA Court Opinion, 6/1/14, at 14-16. We agree

                                    -4-
J-S11041-15

with the PCRA court’s determination and rationale, which is supported by the

record, and we therefore affirm on this basis with regard to this issue. See

id.

      Next, Blenman asserts that “[t]rial [c]ounsel was ineffective for failing

to consult with [Blenman] regarding his [direct] appeal, thereby creating a

deficiency in [Blenman’s] appellate brief.”       Brief for Appellant at 18.

Blenman maintains that he had specifically requested that trial counsel raise

on appeal challenges to (1) the inconsistencies between Trooper Claar’s

testimony and the video; and (2) the reliability of Draco, which issues trial

counsel also failed to raise in his pretrial Motion. Id. at 19-21. Additionally,

Blenman argues that trial counsel was ineffective for failing to ensure that

the search warrant was included in the certified record.            Id. at 19.

Specifically, Blenman points out that, in this Court’s Memorandum affirming

the judgment of sentence, the majority deemed his challenge to the search

warrant waived because this document was not contained in the record. Id.

      The PCRA court thoroughly addressed Blenman’s ineffectiveness

challenge in its Opinion, and properly rejected it. See PCRA Court Opinion,

6/1/14, at 16-20. We affirm with regard to this issue based on the PCRA




                                  -5-
J-S11041-15

court’s sound rationale. See id.3

      Finally, Blenman argues that trial counsel was ineffective for failing to

investigate Dominique Reid (“Reid”). Brief for Appellant at 22. Reid testified

against Blenman at trial, but subsequently recanted her testimony at the

PCRA hearing, asserting that the police and Assistant District Attorney had

coerced her to testify falsely against Blenman by threatening to arrest her.

Id.; see also id. at 24-29 (setting forth Reid’s testimony at the PCRA

hearing).   According to Blenman, he had expressed to trial counsel his

concern that the police had coerced Reid to write a false statement against

him and perjure herself at trial, but trial counsel never investigated

Blenman’s concerns.    Id. at 23; see also id. at 29 (arguing that “[h]ad

[t]rial [c]ounsel zealously investigated [] Reid, he would have discovered

that she had a reason for not being truthful during the [t]rial and that her

testimony was essentially delivered under duress.”).

      The PCRA court addressed this claim in its Opinion, and determined

that trial counsel was not ineffective because the PCRA court had found

Reid’s testimony and recantation at the PCRA hearing to be incredible. See

PCRA Court Opinion, 6/1/14, at 20-23.       We agree with the PCRA court’s

3
  As an addendum, based on our above discussion regarding the purported
inconsistencies between Trooper Claar’s testimony and the video, the PCRA
court properly determined that trial counsel was not ineffective for
determining that there was no merit to this issue, and that it did not have a
chance of success on direct appeal. As the PCRA court noted in its Opinion,
any alleged inconsistencies are “minor,” and raising this issue would have
been a “fruitless venture.” PCRA Court Opinion, 6/1/14, at 12; see also id.
at 14 (stating that “[trial counsel] did not dwell on these inconsistencies
because they would have had no impact on the outcome of the trial.”).

                                    -6-
J-S11041-15

determination and rationale, which is supported by the record, and affirm on

this basis with regard to Blenman’s final issue. See id.

      Because we conclude that the PCRA court neither abused its discretion

nor committed an error of law by denying Blenman’s first PCRA Petition, we

affirm the Order on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2015




                                 -7-
                                                          L~'   ~
           IN THE COURT OF COMMON PLEAS LEBANON           COUNTY~
                                                           Jl'jl ;'.:
                                                                  ,
                                                                        .; .-- .   •   :'.
                                                                                         L   •.•


                            PENNSYLVANIA

                           CRIMINAL DIVISION


 COMMONWEAL TH OF
 PENNSYLVANIA

      v.                                  NO. CP-38-CR-358-2010

 KEVIN BLENMAN




 APPEARANCES

 Jonathan Faust, Esquire              For Commonwealth of Pennsylvania
 DISTRICT ATTORNEY'S OFFICE

Erin Zimmerer, Esquire             For Kevin Blenman
PUBLIC DEFENDER'S OFFICE


OPINION BY CHARLES, J.! June 27, 2014


      Following a Jury Trial, Kevin Blenman (hereafter "DEFENDANT")

was convicted of several drug-related offenses.    His charges originated

from a canine sniff and subsequent search of his vehicle, from which

police recovered over seven pounds of marijuana.     DEFENDANT filed a

Petition for Post-Conviction Relief on October 2, 2013, alleging several

claims of ineffective assistance of counsel against his Trial attorney,

Nicholas Sidelnik (hereafter "TRIAL COUNSEL").    Because we find today

that the issues DEFENDANT raised would have had no impact on the




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outcome of his Trial, we affirm our decision of April 21, 2014 to deny his

PCRA Petition.



I.    FACTS

      On February 5, 2010, Trooper Robert W. Claar of the Pennsylvania

State Police stopped a vehicle driven by DEFENDANT for failure to

display a registration sticker. After DEFENDANT rolled down his window,

Trooper Claar noticed the smell of burnt marijuana emanating from the
                                                       -.
vehicle. Trooper Claar explained the reason for the stop and indicated to

DEFENDANT that he was driving ,without displaying a registration sticker

or temporary paper registration.       DEFENDANT informed Trooper Claar

that he had a temporary paper registration on the back window.                Upon a

close-up inspection and removal of dirt from the window, Trooper Claar

 could see the registration through the window.        DEFENDANT -explained

 that his windows were tinted, and that it is difficult to see the tag.

       A criminal history check on DEFENDANT revealed that he had been

 previously charged three times with Possession with Intent to Deliver.

 DEFENDANT also had an active bench warrant issued for his arrest at the

 time of the traffic stop, and he was driving with a suspended and expired

 license.   Trooper Claar asked DEFENDANT to step out of the vehicle.

 Once DEFENDANT was out of the vehicle, Trooper Claar questioned him

 on   his whereabouts and whether there were any ·guns in the car.

 DEFENDANT stated that there was not a gun in the vehicle. Trooper Claar




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then asked DEFENDANT if there was cocaine in the vehicle. DEFENDANT

stated that there was not.               When questioned about the marijuana smell,

DEFENDANT informed him that he and his passenger, Dominique Reid

(hereafter "REI DilL had just finished smoking marijuana prior to the traffic

stop.    He explained that he and REID were coming home from visiting a

friend in Philadelphia.

        After DEFENDANT denied consent to a search of his vehicle,

Trooper Claar informed him that he was going to deploy his State Police
                                                 JI
Drug Detection (hereafter "SPDD                       )   dog in the vehicle.      DEFENDANT then

admitted that he frequently makes :'runsJl to Philadelphia for people.                                    He

explained that he was coming home from one of these "runs", but he did

not know what was in his vehicle.

        State Police Detection dog Draco was deployed to sniff the vehicle. 1

DRACO alerted the officer of the presence of drugs while he was outside

of the vehicle, and again when he was inside of the vehicle. He alerted to

 a red cooler and small suitcase in the rear of the vehicle.                               DEFENDANT

 was arrested for the bench warrant and his vehicle was impounded.

 Trooper Claar applied for and was issued a search warrant to search

 DEFENDANT's vehicle.                During the search, seven gal/on zip lock bags full

 of marijuana totaling 7.3 pounds were found in a duffle bag located in the

 cooler. An additional 10 grams of marijuana were found in the glove box.

         Based upon these findings, DEFENDANT was charged as follows:

 I DRACO is a canine certified in the detection oftbe odor ofmarijuanalhashish, cocaine hydrochloride/cocaine
 base, heroine hydrochloride, and d, I-methamphetamine hydrochloride. DRACO has been a certified team member
 since July 1,2008.


                                                           4
                                                               Circulated 01f29f2015 04:14 PM




Count I:        Violation of the Controlled     Substance,     Drug,     Device, and

                Cosmetic Act - Possession with Intent to Deliver Marijuana            2


Count II:       Violation of the Controlled     Substance,     Drug,     Device, and

                Cosmetic Act - Possession of Marijuana 3

Count III:      Violation of the   Controlled   Substance,     Drug,. Device, and

                Cosmetic Act - Possession of Drug Paraphernalia 4



        On May 14,2010, DEFENDANT filed an Omnibus Pre-Trial Motion to

Suppress Evidence and Dismiss Charges, challenging the constitutionality

of the admission of the following evidence:



        (1)      The evidence obtained via the traffic stop;

         (2)     Statements made by DEFENDANT while subject to a custodial

                 interrogation;

         (3)     Evidence obtained via the canine search of his vehicle; and

         (4)     Evidence seized from his vehicle.



         We denied all but one of DEFENDANT's Motions on September 1,

 2010 - we granted DEFENDANT's Motion to Suppress the statements he

 made while subject to a custodial interrogation.




 235 Pa.C.S.A. § 780-113(a)(30).
 335 Pa.C.S.A. § 780-113(a)(16).
 435 Pa.C.S.A. § 780-113(a)(32).


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        DEFENDANT's case was submitted for a jury trial on November 2,

2010.     At trial, the Commonwealth called five witnesses.                                  After roughly

one and one-half hours of deliberation, the jury returned verdicts of guilty

on all three charges.                Because a dispute existed with respect to the

amount of marijuana possessed by the Defendant for purposes of Counts

1 and 2 (N.T. 11/2/2010 p. 8), we submitted a special interrogatory with

respect to Counts 1 and 2. That interrogatory read:

        If you find the Defendant guilty of Count (1) [2], do you find
        beyond a reasonable doubt that the amount of marijuana
        possessed by the Defendant was between one pounds and ten
        pounds?


            (Yes)                                        (No)


The jury responded "~yes" to this special interrogatory with respect to both

counts.

         DEFENDANT was brought before us for sentencing on December 29,

2010.      At    that     time,     we      noted      the    extensive         amount       of marijuana

possessed by DEFENDANT, and we noted DEFENDANT's prior criminal

history that included multiple drug offenses. In addition, we were advised

 by the Commonwealth that it sought to apply a drug weight ma'ndatory of

two years on Count 1.                  After consideration of everything, we imposed a

 sentence on Count 1 of 2 years to 6 six years in a state correctional



 5We selected the one pound to ten pound amounts for the special interrogatory because those amounts control the
 offense gravity score of Count 1. Under Pennsylvania's Sentencing Guidelines, the offense gravity score for
 Possession of Marijuana between one and ten pounds is a five, while the offense gravity score for Possession of
 Marijuana under one pound is a three. (N.T.8). The special interrogatory was not designed to address mandatory
 sentencing provisions.


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                                                                            Circulated 01/29/2015 04:14 PM



facility.    We declared that Count 2 should merge with Count 1. We

imposed a consecutive 6 month to 1 year sentence on Count 3. Thus, the

aggregate sentence we imposed was 2 % to 7 years.

        Following      sentencing,    DEFENDANT            filed   timely    Post-Sentence

Motions, which we denied in an ii-page Opinion dated March 18, 2011.

DEFENDANT filed a pro-se Post-Conviction Relief Act Petition on April 8,

2013,       and   an   Amended       Petition       on   October    2,   2013.        Therein,

DEFENDANT           argued   that he was        denied      his    Constitutional     right to

effective assistance of counsel during his proceedings.                     We conducted a

Hearing on all but one of DEFEDANT's Post-Conviction issues on October

 18, 2013. Because DEFENDANT failed to timely notify the Commonwealth

 of a witness prior to his Hearing, we continued the conclusion of the

 Hearing to April 21, 2014 in order to afford the Commonwealth time to

 investigate and rebut DEFENDANT's untimely claim.

        Following the conclusion of the Hearing on April 21, 2014, we issued

 an   Order denying        DEFENDANT's Petition for Post-Conviction                      Relief.

 DEFENDANT filed a timely appeal to the Superior Court on May 8, 2014.

 We author today's Opinion to further explain our rationale in denying

 DEFENDANT's Petition for Post-Conviction Relief.




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II.    DISCUSSION

       A. The Post-Conviction Relief Act


       The   Post-Conviction   Relief Act         (hereafter "PCRA")        provides       a

process by which persons convicted of crimes they did not commit and

persons serving illegal sentences can           obt~in   relief. 42 Pa.C.S.A. § 9542.

The PCRA is the exclusive method by which collateral relief may be

obtai ned in Pen nsylvan ia.   C01J1monwealth v. Chester, 733 A.2d 1242,

 1250 (Pa. 1999).     To be eligible for relief, a PCRA defendant must prove

the following elements by a preponderance of evidence:

 (1)    That he has been convicted of a crime under the laws of this

        Commonwealth and that he is serving a sentence for that crime;

 (2)    That the conviction resulted from one of the enumerated errors

        listed in § 9543(a)(2) of the PCRA;

 (3)    That the allegation of error has not previously been litigated or

        waived; and

 (4)    That any failure to litigate the issue previously was not the result of

        a rational, strategic, or tactical decision by the Defendant or his

        counsel.

 See 42 Pa.C.S.A. § 9543.

        When   a   claim   of ineffective       assistance    of counsel       is   raised,

 additional principles apply. Trial counsel is presumed to be effective, and

 the Defendant bears the burden of proving otherwise.              Commonwealth v.

  Lewis, 708 A.2d 497,500 (Pa.Super. 1998); Commonwealth v. Williams,



                                            8
                                                                             Circulated 01/29/2015 04:14 PM




570 A.2d 75, 81 (Pa. 1990).                 In determining whether counsel rendered

ineffective assistance, the Court must first determine whether the issue

underlying    the    claim        of     ineffectiveness     has      even     arguable       merit.

Commonwealth          v.    DiNicoJa,        751   A.2d     197,    198      (Pa.Super.       2000);

Commonwealth v. Johnson, 588 A.2d 1303, 1305 (Pa. 1991).                                       If the

claim is without arguable merit, the Court's inquiry ends, as counsel will

not be deemed ineffective for failing to pursue a meritless issue.                                 Jd.

Even if the underlying claim is of arguable merit, the Defendant must

establish that the course of action chosen by counsel had no reasonable

basis designed to effectuate the Defendant's interest. Jd. In addition, the

Defendant      must        also        establish   that     but    for    counsel's        deficient

performance, the result of the trial would have been different. Jd.

      DEFENDANT's Amended PCRA Petition alleged the following four

errors of TRIAL COUNSEL:



      1. TRIAL COUNSEL failed to introduce the traffic stop video at

      the Pre-Trial Hearing to impeach the testimony of the officer;

      2.     TRIAL     COUNSEL              withheld      discovery      materials       from

      DEFENDANT by failing to show him the video of the traffic

      stop;

      3. TRIAL COUNSEL failed to challenge the reliability of the

      drug sniffing dog, Draco; and




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                                                                        Circulated 01/29/2015 04:14 PM




               4.   TRIAL   COUNSEL      failed   to   consult   with     DEFENDANT

               regarding his appeal.



        DEFENDANT alleged an additional ground for relief under the Act:



               5.   That    witness    REI D   disavowed     her    trial      testimony        and

               acknowledged that she lied at trial.



        We conducted two separate factual Hearings on DEFENDANT's Petition.

        For the reasons that follow, we conclude that our decision to deny

        DEFENDANT _relief under the Post-Conviction Relief Act was the right

        one.



               1. Failure to Introduce the Traffic Stop Video at the Pre-Trial

               Hearing


               DEFENDANT argues that TRIAL COUNSEL provided him with

        ineffective assistance because he failed to introduce the traffic stop

        video at the Pre-Trial Hearing. DEFENDANT explains that he did not

        actually see the traffic stop video until August of 2010. When he finally

        viewed the video, he noticed that there were several inconsistencies

         between the officer's testimony and what was depicted in the traffic stop

         video. He explains that TRIAL COUNSEL should have raised these




                                                  10

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                                                         Circulated 01/29/2015 04:14 PM




inconsistencies at the Pre-Trial Hearing to impeach the testimony of the

officer.


      We initially note that the traffic stop video was provided to the Court

for review and was admitted as Exhibit 1 to the Pre-Trial Hearing. N.T.

6/16/2010 p. 23. This Court was therefore able to thoroughly review the

video and the Hearing testimony before rendering our decision to deny

DEFENDANT's Motion to Suppress the evidence seized from his vehicle.

We conclude therefore that the fact that the video of the traffic stop was

not actually physically shown at the Pre-Trial Hearing had no bearing on

the outcome of that Pre-Trial Hearing.


      DEFENDANT hangs his hat on an alleged minor inconsistency in

Trooper Claar's testimony compared to what is depicted in the traffic

stop video. Trooper Claar testified that Draco alerted him to the

presence of drugs in a red cooler in the rear of the vehicle. When asked

how he knew that Draco was alerting to the presence of drugs in the red

 cooler, Trooper Claar testified that he saw Draco through the window

 from behind the vehicle. However, the video shows that Trooper Claar

 never walked behind the vehicle, and instead remained at the side of the

 vehicle. DEFENDANT argues that Trooper Claar could not have seen

 what Draco was alerting him to from his vantage point. He explains that

 TRIAL COUNSEL should have raised this issue at the Pre-Trial Hearing.

       Assuming arguendo that Trooper Claar was unable to see Draco

 insid e the vehicle from his vantage point, sufficient evidence existed


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                                                          Circulated 01f29f2015 04:14 PM




independent of Trooper Claar visually observing Draco within the vehicle

to create probable cause:


(1)   Trooper Claar noted that he detected the odor of burnt marijuana

      coming from the DEFENDANT's vehicle when he approached the

      window.

(2)   Trooper Claar conducted a criminal history check of DEFENDANT

      which revealed that DEFENDANT had been previously charged three

      times with Possession with Intent to Deliver.

(3)   DRACO was deployed on the exterior of the vehicle and was alerted

      to the open driver's door. While inside of the vehicle, Draco hopped

      to the back seat of the vehicle and continued to bark and alert

      Trooper Claar to the presence of marijuana.


Based on this evidence alone, it is clear that the Magistrate had a

substantial basis for concluding that probable cause existed to search

DEFENDANT's vehicle. TRIAL COUNSEL showing the video at the

 Hearing and pressing Trooper Claar on a minor inconsistency in his

testimony would have therefore been a fruitless venture. As such, we

 cannot find TRIAL COUNSEL ineffective for failing to introduce the video

 at the Hearing.


      2. Withholding of Discovery Materials from DEFENDANT


      DEFENDANT further insists that TRIAL COUNSEL should have

 reviewed the traffic stop video with him prior to the Pre-Trial Hearing so


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                                                                Circulated 01/29/2015 04:14 PM




     that DEFENDANT could have searched for inconsistencies in the video.

     DEFENDANT wanted to be aware of what was going to be shown to the

     Court via the traffic stop video so that he could offer help to his counsel

     in order to question Trooper Claar. N.T. 10/18/2013 p. 4. For instance,

     as described above, he sought to impeach the testimony of Trooper Claar

     by pointing out minor inconsistencies between the video and Trooper

     Claar's testimony. N.T. 10/18/2013 p. 12. He believes that if he would

     have been able to view the video before the Pre-Trial Hearing, it would

     have helped him prepare his defense. N.T. 10/18/2013 p. 11.


          The fact that TRIAL COUNSEL did not show DEFENDANT the video

     of the traffic stop similarly had no bearing on this Court's decision with

     respect to the Pre-Trial issue, nor did it have any bearing'with respect to

     the presentation of evidence at trial. DEFENDANT identified minor

     discrepancies between the video and the officer's testimony that he

     sought to discuss with TR'IAL COUNSEL and raise during the Pre-Trial

     Hearing. The fact that Trooper Claar observed Draco identify the

     presence of drugs from the side of the vehicle rather than the back of the
                                                      \-0
     vehicle as he testified is not significant enough"discredit his ·testimony.

      It is clear from the video that Draco first detected the odor of marijuana

     from outside the vehicle; he began barking and jumping around. After

      Draco jumped in the driver's side door on his own, he continued to bark

      and alert to the presence of marijuana. Trooper Claar testified that he

      could see Draco alerting to the red cooler in the back of the car.



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                                                                   ¥"W~t§ff~Wff~~~~~:~:,~:Y{~/·~:'~)~~··<'~i
                                                      Circulated 01/29/2015 04:14 PM                       .




    TRIAL COUNSEL had a chance to fully review the traffic stop video.

N.T. 10/18/2013 p. 47. TRIAL COUNSEL also discussed with

DEFENDANT his recollection of what occurred at the traffic stop. TRIAL

COU NSEL heard the testimony of Trooper Claar and his recollection of

the drug sniff, and he then cross-examined him on his actions during the

drug sniff (See N.T. 6/1612010 pp. 23-36). This Court was then able to

review the video in light of the Hearing testimony. We were unable to

discern any glaring discrepancies between the Hearing testimony and the

video that TRIAL COUNSEL had missed.


     It is clear that TRIAL COUNSEL was fully aware of the minor

inconsistencies between the video and Trooper Claar's testimony to

which DEFENDANT refers in his PCRA Petition. It is also clear that he

did not dwell on these inconsistencies because they would have had no

impact on the outcome of the trial. More than enough evidence existed

to establish probable cause to search DEFENDANT's vehicle, and we are

confident that DEFENDANT's screening of the video prior to Trial would

have had no impact on its outcome. As such, we cannot conclude that

TRIAL COUNSEL was ineffective for failing to show DEFENDANT the

traffic stop video prior to Trial.


     3. Failure to Challenge the Reliability of Draco


     DEFENDANT next claims that TRIAL COUNSEL failed to challenge

the reliability of the drug dog, Draco. DEFENDANT's sole argument



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        regarding the reliability of Draco is that he never alerted on the glove

        compartment even th ough the re we re drugs inside. N. T. 10/18/2013 p.

        25. DEFENDANT therefore argues that Draco could not be reliable. He

        submits that TRIAL COUNSEL should have challenged the reliability of

        Draco at Trial.


              At the Pre-Trial Hearing, Trooper Claar testified to the training and

        certification of Draco as a drug detection dog. Draco is certified in the

        detection of the odor of marijuana/hashish, cocaine

        hydrochloride/cocaine base, heroine hydrochloride, and d, 1-

        methamphetamine hydrochloride. N'.T. 6/16/2010 p. 13. Draco has been

        a certified team member since July 1, 2008.


              DEFENDANT expected TRIAL COUNSEL to call into question

        Draco's reliability at Trial because Draco never alerted on the drugs in

        the glove compartment. TRIAL COUNSEL reminded us at DEFENDANT's

        first PCRA Hearing that seven and one-half pounds of marijuana were

        located in the red cooler that Draco hit upon, while only a very small

         amount of marijuana was located in the glove compartment. He

         explained that it was not surprising that Draco chose to alert to the

         cool er rather th a n th e g love compartment. Because of this, he concluded

         that a challenge to Draco's reliability would have been a meritless issue
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         in t his cas e . N . T. 1 0/1 8/20 1 3 Pp. 49 - 50.
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                                                       15
     We follow the logic of TRIAL COUNSEL and conclude that Draco's

decision to hit upon the large amount of marijuana in the cooler instead

of the small amount of marijuana in the glove compartment is not

evidence that Draco's drug sniff was unreliable. Trooper Claar testified

to Draco's credentials and capabilities as a drug sniffing dog. The traffic

stop video clearly shows Draco sniffing around the outside of the vehicle

and alerting to the smell of marijuana before he jumps inside the vehicle.

Trooper Claar testified at trial that he could see Draco inside the vehicle

sniffing the red cooler and alerting him to the presence of a large amount

of drugs therein. We are confidenfthat a challenge to Draco's reliability

in light of these facts would have failed. Because a challenge to Draco's

reliability would have had no impact on DEFENDANT's verdict at Trial,

we do not find TRIAL COUNSEL ineffective for choosing not to pursue

this argument.


      4. Failure to Consult with DEFENDANT Regarding His Appeal


      DEFENDANT next explains that TRIAL COUNSEL failed to discuss

and pursue all issues with him that he wished to raise on appeal.

Specifically, DEFENDANT alleges that TRIAL COUNSEL did not discuss

 the reliability of Draco with DEFENDANT, and did not challenge the dog's

 reliability on appeal. N.T. 10/18/2013 p. 14. TRIAL COUNSEL further

 failed to address the inconsistency of the officer's testimony with the

 traffic stop video on appeal. N.T. 10/18/2013 p. 15. DEFENDANT claims




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        that he told TRIAL COUNSEL that he wanted to appeal these issues, but                   \          "




        he failed to do so. N.T. 10/18/2013 p. 17.
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             TRIAL COUNSEL testified that he met with DEFENDANT prior to his                           \
                                                                                                       I
                                                                                                       i       I
        sentencing to discuss the issues he wanted to raise on appeal. N.T.

        10/18/2013 p. 50. He explained that he included each of the issues

        DEFENDANT requested for him to appeal. N.T. 10/18/2013 p. 51. He

        explained that DEFENDANT referenced the reliability of Draco's drug

        sniff, but his request was vague and TRIAL COUNSEL was not sure what

        exactly DEFENDANT wanted to appeal. He testified that he "felt that

        [the) issue was tied to the drug sniff, not the actual search of the interior

        of the vehicle." N.T. 10/18/2013 p. 50. Since he concluded that a

        challenge to Draco's reliability would have been meritless, he did not

        include this issue in the appeal.


              Central to a claim of ineffective assistance of counsel under the

         PCRA is an attorney's failure to pursue a meritorious issue that would

         have likely affected the outcome of a Defendant's trial. Conversely,

         counsel cannot be deemed ineffective for failing to pursue a meritless

         issue. As discussed above, an attack on Draco's reliability under the

         circumstances of this case would likely have not affected the outcome of

         DEFENDANT's trial. TRIAL COUNSEL therefore cannot be deemed

         ineffective for failing to pursue this meritless argument.



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     DEFENDANT also explains that the two-Judge majority of the

Superior Court panel deemed his challenge to the Search Warrant

waived because the Search Warrant itself was not part of the record.

DEFENDANT references the Superior Court's Opinion of April 17,2012

that affirms DEFENDANT's sentence. Because of this, DEFENDANT

suggests that TRIAL COUNSEL was ineffective for failing to ensure that

the Search Warrant was part of the record.


     In Judge Bowes' Concurring Statement,jhe opined that the validity

of the warrant could have been determined based upon the transcripts of

the suppression hearing contained in the certified record.fHe explained,

therefore, that the Search Warrant itself did not have to be a part of the

record for the Superior Court to rule on the issue. Judge Bowes

reasoned:


      The warrant is sound because the evidence adduced at that

      proceeding confirms that the vehicular stop was legal,

      reasonable suspicion to order the canine sniff was present,

      and the canine alerted to the presence of drugs while it was

      located outside the vehicle. Thus, even if the interior alert

      was used to sustain the warrant and that alert was

      constituti"onally infirm, the warrant itself remained lawful due

      to the exterior alert. Based on the transcript in the record, we

      are able to discern that there was sufficient untainted

       information to support a finding of probable cause   an~   render


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     the warrant acceptable. Not agreeing with the majority's

     finding of waiver, I concur.


Concurring Statement, 4/17/2012, p. 3.


    We incorporate this legal analysis undertaken by Judge Bowes into

our Opinion. We find that ample evidence exists in the record to support

a finding that probable cause existed at the time of the search. The

record indicates that while Trooper Claar was speaking with

DEFENDANT, he detected the odor of burnt marijuana coming from the

vehicle. N.T. 6/16/2010 p. 7. This alone gave Trooper Claar reasonable

suspicion to deploy Draco. Commonwealth v. Kemp, 961 A.2d 1247

(Pa.Super. 2008) (reasonable suspicion present when police smell odor

of drugs); Commonwealth v. Rogers, 849 A.2d 1185, 1191 (Pa. 2004)

(to support canine sniff of a place, including vehicle, police must possess

reasonable suspicion). This reasonable suspicion became probable

cause when Draco performed an exterior sniff of the vehicle and alerted

to the marijuana (N.T. 6/16/2010 p. 13) (Commonwealth v. Hernandez,

935 A.2d 1275, 1285 (Pa. 2007) ("the law is clear that once a canine

sniff of a vehicle's exterior triggers a positive indication, reasonable

suspicion of contraband in the vehicle ripens to probable cause")).


     Even had the Search Warrant itself been appended to

DEFENDANT's Appeal, the Superior Court's decision to affirm his

Sentence would not have changed. The Search Warrant states that



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Trooper Claar pulled DEFENDANT over pursuant to a perceived traffic

violation. Trooper Claar then smelled the odor of burnt marijuana coming

from the vehicle. Thereafter, Draco performed an exterior sniff of the

vehicle and alerted to the presence of marijuana. Had the Superior

Court received the actual Search Warrant with the Record, they would

have found these facts within and would have concluded that Trooper

Claar had probable cause to search the vehicle.


     TRIAL COUNSEL clearly consulted with DEFENDANT regarding his

appeal, and DEFENDANT has not identified any meritorious issues that

TRIAL COUNSEL failed to raise on appeal. We therefore cannot find that

TRIAL COUNSEL gave ineffective assistance during DEFENDANT's

appeal process.


      5. Trial Testimony of Dominique Reid


      Finally, DEFENDANT argues that he is entitled to Post-Conviction

Relief because trial witness REID recanted her testimony, explaining that

she was "coerced" into testifying against DEFENDANT.6 Since we found

that her testimony at the October 18, 2013 PCRA Hearing was not

credible, we find that DEFENDANT is not entitled to relief under the

 PC RA on this ground.


 6Notice regarding Ms. REID's change of testimony was not provided to the
 Commonwealth until less than two weeks before the first PCRA Hearing. Because
 notice of this issue was not timely provided to the Commonwealth and because the
 Commonwealth has not had the opportunity to subpoena necessary witnesses to rebut
 REID's testimony, we continued the PCRA Hearing until April 21,2014 in order to
 afford the Commonwealth time to procure witnesses.


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     REID testified against DEFENDANT during trial, explaining that she

did not know that the red cooler full of marijuana was in the vehicle. She

explained that there was a period of thirty minutes to an hour where

DEF ENDANT left her at his cousin's house in Philadelphia. N. T.

11/2/2010 pp. 34-35. REID explained that she did not know where

DEFENDANT went during the time that she was at his cousin's house.

This testimony created a window of time during which DEFENDANT could

have obtained the red cooler full of marijuana because his whereabouts

were unknown to REID. REID also prepared a written statement prior to

Trial at the Commonwealth's request memorializing this information.


      However, at the October 18, 2013 PCRA Hearing, REID explained

that her trial testimony was coerced and that DEFENDANT never left her

at his cousin's house. She insists that she and DEFENDANT were

together during their entire trip to Philadelphia. Since REID indicated at

Trial that the vehicle they were driving belonged to DEFENDANT's

 girlfriend, Aigner London (N.T. 11/2/2010 p. 38), this created the

 possibility that the red cooler full of marijuana belonged to

 DEFENDANT's girlfriend and not DEFENDANT.


      REID explained that she lied at trial because she felt "intimidated"

 during her interview with the police and Attorney McAteer of the Lebanon

 County District Attorney's Office. N.T. 10/18/2013 p. 31. She

 proclaimed that Attorney McAteer and the officers told her they were

 going to "lock her up" if she didn't testify that DEFENDANT left her at his


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cousin's house for a brief period of time during their trip. N.T.

10/18/2013 p. 31. They told her that she "wouldn't be able to go to

school". Her testimony at DEFENDANT's PCRA Hearing was that she

was with DEFENDANT during the entire trip, and she did not see him

place the red cooler full of marijuana in the vehicle. She explained that

she felt she could not tell the truth at DEFENDANT's jury trial because

she was afraid that she was going to "get locked up" that day. N.T.

10/18/2013 p. 36.


     We do not find REID's attempt to recant her testimony to be credible

for several reasons. We initially note that REID provided Trial testimony

on N ovem ber 2, 2010, and waited until now to recant her testimony. It is

also obvious to this Court that REID has a motive to assist DEFENDANT.

She indicated in her testimony, "I have love for the DEFENDANT," "I do

not want him to be in jail," and "I pray that he comes home." N.T.

 10/18/2013 pp. 44-45. We also note that throughout the Hearing on

 October 15, 2013, REID sat in the courtroom with friends and family

 members who obviously supported DEFENDANT.


      Further, considerable testimony was presented from Trooper Claar

 and Attorney McAteerthat REID was not in any way threatened or

 intimated when she met with police prior to her Trial testimony. In fact,

 Attorney McAteer indicated that REID was accompanied by her father

 and was extremely cooperative at all times during her meetings at the

 District Attorney's office. He explained that he would never threaten a


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witness to elicit testimony, and that REED was not in any way reluctant

to provide him with information. N.T. 4/2112014 pp. 14-15.


       Ultimately, we find Attorney McAteer's testimony to be credible. At

the PCRA Hearing, it was clear to us that REID was simply attempting to

help her friend instead of tell the truth. REID testified under oath in 2010

to information she knew at the time to be accurate, and any attempt by

REID to disavow such testimony years later is simply not credible. As

such, we will not grant DEFENDANT's PCRA on these grounds.


III.   CONCLUSION


          It is clear to us that DEFENDANT's appeal should be denied for

several reasons.        First, since the traffic stop video was provided to the

Court for review and was admitted as Exhibit 1 to the Pre-Trial Hearing,

introducing and cross-examining the video at the Hearing would not have

impacted the outcome of DEFENDANT's Suppression Hearing because

this Court was able to review the video and observe the interaction

between DEFENDANT and Trooper Claar, as well as the subsequent drug

 sniff.    We concluded - and still conclude today - that the drug sniff was

 based      on   a   reasonable    suspicion,   and   the     subsequent      search       of

 DEFENDANT's vehicle was based on probable cause.                     As such, TRIAL

 COUNSEL         should   not be     deemed     ineffective    for   choosing      not     to

 introduce the video at the Hearing.




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     Next, we fail to see how showing DEFENDANT the video before the

Hearing and Trial would have impacted his case.              DEFENDANT argues

that he could have pointed out certain observations to TRIAL COUNSEL

and could have helped him prepare a defense, but after viewing the

video,    this   Court    is    not   aware   of any   "observations" that TRIAL

COUNSEL failed to raise at the Pre-Trial Hearing and at Trial that would

have had any arguable merit.             We therefore find that TRIAL COUNSEL

was not ineffective for failing to show DEFENDANT the video prior to the

Pre-Trial Hearing.


     Next, DEFENDANT's argument that Draco is unreliable because he

failed to hit on the marijuana in the glove compartment is meritless.

Trooper Claar testified to Draco's credentials and capabilities as a drug

sniffing dog.     The traffic stop video clearly shows Draco sniffing around

the outside of the vehicle and alerting to the smell of marijuana before he

jumps inside the vehicle. When he jumped inside the vehicle, Draco not

surprisingly chose to alert Trooper Claar to the seven                   pounds       of

marijuana in the red cooler, rather than the small amount in the glove

compartment.          We are confident that a challenge to Draco's reliability

would have failed.             As such, we find that TRIAL COUNSEL was not

effective for failing to challenge Draco's reliability in this regard.


         Next,   we    find    that   TRIAL   COUNSEL     adequately   represented

DEFENDANT throughout his appeal. TRIAL COUNSEL and DEFENDANT

both testified that they met to discuss the issues DEFENDANT wished to


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raise    on     appeal.    DEFENDANT is simply unhappy because TRIAL

COUNSEL refused to appeal the meritless issues of Draco's reliability

and the discrepancy between Trooper Claar's testimony compared to the

video.        We cannot find TRIAL COUNSEL ineffective for choosing not to

pursue a meritless argument on appeal.


        Finally, we find that the PCRA testimony of REID is not credible,

and we find the PCRA testimony of Attorney McAteer to be credible. It is

clear that REID had a motive to recant her testimony.                  Further, REID

waited at least 2 and a half years to come forth and claim that she lied at

Trial. We find that REID was not intimidated or coerced when she wrote

her statement to police, nor was she threatened or coerced when she

testified against DEFENDANT at trial. As such, DEFENDANT's argument

must fail.


         In    sum,   we   reject   Defendant's    arguments   and    conclude that

Defendant's appeal should be denied.              A Court Order will be entered on

today's date to transmit Defendant's file to the Superior Court for their

review.




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