J-S23042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MICHAEL ELLIOTT                          :
                                          :
                    Appellant             :   No. 2606 EDA 2017

                  Appeal from the PCRA Order July 25, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0005442-2010


BEFORE:    SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                         FILED JUNE 12, 2018

      Appellant, Michael Elliott, appeals pro se from the order entered in the

Court of Common Pleas of Philadelphia County dismissing his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Herein, Appellant contends he is entitled to a new trial based on trial

counsel’s ineffective assistance in foregoing a pretrial motion to suppress his

confession as the product of an illegal arrest, in interfering with his right to

testify, and in failing to file a post-sentence motion raising a weight of the

evidence challenge to the verdict. We affirm.

      The PCRA court aptly relates the pertinent facts and procedural history

of the case, as follows:

      The factual background of this matter is set forth in the [trial
      court’s] Rule 1925(a) opinion filed in Appellant’s direct appeal as
      follows:



____________________________________
* Former Justice specially assigned to the Superior Court.
J-S23042-18


           These charges arose out of an incident that occurred
           on April 7, 2010, at approximately 2:00 a.m. Earlier
           that morning, the decedent, Rachel Marcelis
           (“Marcelis”) and her friend, Gina Fehr (“Fehr”) were
           sitting in Fehr’s car smoking marijuana, outside of Fat
           Pete’s Bar in Northeast Philadelphia. As they were
           smoking, Fehr’s boyfriend, David DiPersio (“DiPersio”)
           and Appellant came to the car and began chatting with
           Fehr and Marcelis. DiPersio and Appellant got into
           Fehr’s car and sat in the driver’s seat and passenger’s
           seat, respectively. Fehr then sat on DiPersio’s lap,
           while Marcelis sat leaning against the dashboard of
           the car on Appellant’s lap with the doors open. The
           four (4) individuals smoked marijuana and as they
           did, Appellant pulled out a gun. Fehr asked Appellant
           to put the gun away and Appellant stated that he was
           licensed to carry.

           Appellant then removed the clip from the gun and the
           gun was fired. Marcelis was hit with one (1) bullet to
           the chest and immediately asked the others to call 9-
           1-1. After seeing Marcelis was hit, Appellant got out
           of the car, causing Marcelis to fall into the street, and
           ran to his mother’s house at 6123 Hegerman Street in
           Wissinoming. Upon arriving at his mother’s house,
           Appellant went to the basement and changed his
           clothes. Appellant then came upstairs where he spoke
           with his mother before Police Officers Andre Hudgens
           (“Hudgens”) and Ashley Johnson (“Johnson”) arrived.
           Hudgens and Johnson questioned Appellant [at his
           mother’s home] regarding the incident . . . and then
           transported Appellant to the Homicide Unit.

           Medics responded to the 9-1-1 call and Marcelis was
           transported to Aria Health – Frankford Campus.
           Marcelis was shocked three (3) times during transit
           and was given six (6) rounds of ACLS medication
           before being pronounced dead at 2:45 a.m.

     Trial Court Opinion, filed November 27, 2013, at 2-3.

     On January 17, 2013, following a jury trial before the Honorable
     Lillian H. Ransom, [Appellant] Michael Elliott was convicted of one
     count each of third-degree murder (18 Pa.C.S. § 2502(c)),

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       possessing a firearm without a license (18 Pa.C.S. § 6106), and
       carrying a firearm on a public street or public property in
       Philadelphia (18 Pa.C.S. § 6108). On March 5, 2013, Judge
       Ransom sentenced Appellant to an aggregate term of fifteen to
       thirty years’ incarceration. Appellant’s post-sentence motion was
       denied by operation of law on July 16, 2013.

       Appellant subsequently filed an appeal on July 18, 2013. On
       December 15, 2014, the Superior Court affirmed Appellant’s
       judgment of sentence. The Supreme Court denied allocator on
       October 26, 2015. Appellant then filed a pro se petition, with an
       accompanying brief in support thereof (“Brief in Support of
       Petition”), under the PCRA on November 6, 2015. Stephen
       O’Hanlon, Esquire was appointed to represent Appellant on May
       16, 2016.

       With Judge Ransom having been elevated to the Superior Court,
       this matter was assigned to [the Honorable Glenn B. Bronson] on
       November 11, 2016.        Appellant subsequently requested to
       proceed pro se, and after a Grazier[1] hearing, the [PCRA court]
       permitted Appellant to do so. On May 26, 2017, after reviewing
       Appellant’s petition and the Commonwealth’s Motion to Dismiss,
       the [PCRA court] ruled that the claims set forth in Appellant’s
       petition were without merit.         On that day, pursuant to
       Pa.R.Crim.P. 907, the [PCRA court] issued notice of its intent to
       dismiss the petition without a hearing (“907 Notice”). On July 25,
       2017, the [PCRA court] entered an order dismissing Appellant’s
       petition.

       Appellant has now appealed the [PCRA court’s] dismissal of his
       petition, alleging that trial counsel was ineffective for: 1) failing to
       seek suppression of the inculpatory statement that Appellant
       made following his [purportedly] illegal arrest; 2) refusing to
       permit Appellant to testify based on incorrect and misleading
       factors; and 3) failing to challenge the weight of the evidence in a
       post-sentence motion, thereby waiving the issue on appeal.
       Statement of Matters Complained of Pursuant to Rule of Appellate
       Procedure 1925(b) (“Statement of Errors”) at ¶¶ 1-3.
____________________________________________


1Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (holding court must
determine on record that indigent defendant wants to proceed pro se, to
ensure waiver of counsel is knowing, intelligent and voluntary).


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PCRA Court Opinion, filed 10/5/17, at 1-3.

      Appellant’s Statement of Questions Presented raises the following three

questions for our review:

         I.      SHOULD    THE   INDICTMENT   BE   DISMISSED
                 AGAINST THE APPELLANT AS A RESULT OF AN
                 ILLEGAL ARREST WITHOUT PROBABLE CAUSE IN
                 VIOLATION OF THE 4TH AMENDMENT TO THE
                 UNITED STATES CONSTITUTION AND ARTICLE 1,
                 SECTION 8 OF THE PENNSYLVANIA CONSTITUTION
                 AND IS THE APPELLANT ENTITLED TO A NEW TRIAL
                 BASED ON COUNSEL’S INEFFECTIVENESS FOR
                 FAILING   TO   SEEK  SUPPRESSION     OF  HIS
                 INCULPATORY STATEMENT MADE AFTER HIS
                 ILLEGAL ARREST?

         II.     IS THE APPELLANT ENTITLED TO A NEW TRIAL
                 BASED ON TRIAL COUNSEL’S INEFFECTIVE
                 ASSISTANCE IN REFUSING TO PERMIT HIM TO
                 TESTIFY BASED ON INCORRECT FACTORS?


         III. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING
              TO FILE POST SENTENCE MOTIONS THEREBY
              WAIVING THE APPELLANT’S ARGUMENT AGAINST
              THE WEIGHT OF THE EVIDENCE ON APPEAL?

Appellant’s brief at 4-5.

                     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, 582 Pa. 164, 870 A.2d
               795, 799 n. 2 (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), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).


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            [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. Commonwealth
            v. Jordan, 772 A.2d 1011, 1014 (Pa.Super. 2001). It
            is within the PCRA court's discretion to decline to hold
            a hearing if the petitioner's claim is patently frivolous
            and has no support either in the record or other
            evidence. Id. It is the responsibility of the reviewing
            court on appeal to examine each issue raised in the
            PCRA petition in light of the record certified before it
            in order to determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without     conducting    an     evidentiary    hearing.
            Commonwealth v. Hardcastle, 549 Pa. 450, 454,
            701 A.2d 541, 542–543 (1997).

      Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,
      1239–1240 (Pa.Super. 2004).

            To prevail on a claim alleging counsel's ineffectiveness
            under the PCRA, Appellant must demonstrate (1) that
            the underlying claim is of arguable merit; (2) that
            counsel's course of conduct was without a reasonable
            basis designed to effectuate his client's interest; and
            (3)    that   he    was    prejudiced    by    counsel's
            ineffectiveness, i.e. there is a reasonable probability
            that but for the act or omission in question the
            outcome of the proceeding would have been different.
            Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d
            326, 333 (1999); Commonwealth v. Douglas, 537
            Pa. 588, 645 A.2d 226, 230 (1994).

      Commonwealth v. Bracey, 568 Pa. 264, 276, 795 A.2d 935,
      942 (2001).

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012).

      In both Appellant’s Rule 1925(b) statement and his appellate brief, he

first contends that counsel rendered ineffective assistance by failing to file a

pretrial motion seeking suppression of his incriminating statement, as it was



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the product of an illegal arrest effected without probable cause. Specifically,

Appellant maintains that police officers impermissibly relied solely on an

anonymous tip to locate his residence and arrest him.

      It is undisputed that Appellant was subjected to a warrantless arrest at

the conclusion of the officers’ questioning inside his home. Thus, the arresting

officers were required to possess probable cause to justify that arrest. See

In Interest of O.A., 717 A.2d 490, 495 (Pa. 1998) (“In order to be

constitutionally valid under the Fourth Amendment to the United States

Constitution, a warrantless arrest must be supported by probable cause.”).

This Court has summarized that:

      Probable cause to arrest exists when the facts and circumstances
      within the police officer's knowledge and of which the officer has
      reasonably trustworthy information are sufficient in themselves to
      warrant a person of reasonable caution in the belief that an
      offense has been committed by the person to be arrested.

      Probable cause justifying a warrantless arrest is determined by
      the totality of the circumstances.

      Probable cause does not involve certainties, but rather the factual
      and practical considerations of everyday life on which reasonable
      and prudent men act. It is only the probability and not a prima
      facie showing of criminal activity that is a standard of probable
      cause. To this point on the quanta of evidence necessary to
      establish probable cause, the United States Supreme Court
      recently noted that finely tuned standards such as proof beyond a
      reasonable doubt or by a preponderance of the evidence, useful
      in formal trials, have no place in the probable-cause decision.

Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005)

(internal citations, quotation marks, and brackets omitted).




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        In an attempt to advance his position that he was subjected to an illegal

arrest, Appellant directs this Court to Terry2 jurisprudence invalidating

searches and seizures of incriminating evidence supported only upon an

anonymous tip without independent police corroboration.            See Appellant’s

brief at 9 (discussing Commonwealth v. Wiley, 858 A.2d 1191 (Pa.Super.

2004) (holding single anonymous tip alone insufficient to justify seizure; mere

corroboration of suspect’s features with information from call did not create

reasonable suspicion to allow immediate investigation through temporarily

maintaining status quo)). Setting aside the fact that Appellant has, with this

argument,     conflated    the    reasonable     suspicion standard applicable   to

investigatory detentions with the probable cause standard applicable to

arrests,3 we find that the record belies Appellant’s underlying assertion that

the officers relied solely on an anonymous tip to arrest him.

____________________________________________


2   Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

3We have acknowledged the following approach to police/citizen encounters
under both the Fourth Amendment and Article 1, Section 8:

        This Court has noted that there are three basic categories of
        interactions between citizens and the police. The first category, a
        mere encounter or request for information, does not need to be
        supported by any level of suspicion, and does not carry any official
        compulsion to stop or respond.         The second category, an
        investigative detention, derives from Terry v. Ohio and its
        progeny: such a detention is lawful if supported by reasonable
        suspicion because, although it subjects a suspect to a stop and a
        period of detention, it does not involve such coercive conditions
        as to constitute the functional equivalent of an arrest. The final



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____________________________________________


       category, the arrest or custodial detention, must be supported by
       probable cause.

Commonwealth v. Moyer, 954 A.2d 659, 663 (Pa.Super. 2008) (en banc)
(quoting Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5, 10 (2003)).

Initially, we note Wiley is not only inapposite to the issue of whether officers
arrested Appellant without probable cause, it is also factually distinguishable.
In Wiley, an officer received a 9-1-1 dispatch relating an anonymous tip that
a man entered a nearby barbershop with a gun in his waistband. The officer
arrived at the barbershop one minute later with his gun drawn and
immediately directed Wiley to raise his hands. The officer recovered the gun
from Wiley and arrested him. As noted above, this Court held the officer
lacked reasonable suspicion to support the Terry search and seizure and
required suppression of the handgun.

In contrast, investigating officers in the case sub judice used the anonymous
tip to locate the residence to which Appellant fled, but once there, they did
not present with a show of force as was done in Wiley. Instead, the officers
knocked on the front door and received Appellant’s stepfather’s permission to
enter. N.T. 1/15/13 at 78. The stepfather called everyone downstairs, and
the officers, observing that Appellant matched the description given in the tip,
asked Appellant how long he had been home that night, to which Appellant
answered “ten minutes” and began to cry. N.T. at 79. Appellant then
admitted he was in the vehicle when the shooting occurred but denied
responsibility for the shooting. Id. Appellant also admitted to fleeing the
scene once the victim was shot. Id. At this point, given the totality of
circumstances known to the officers, including Appellant’s admissions, police
arrested him.

The record establishes, therefore, that police were lawfully in Appellant’s
mother’s home at the time they spoke with Appellant, as Appellant’s
stepfather admitted them voluntarily. Cf. Commonwealth v. Gonzalez, 979
A.2d 879, 886 (Pa.Super. 2009) (collecting cases holding Fourth Amendment
recognizes valid warrantless entry and search of premises when police obtain
voluntary consent of occupant). The record further supports the conclusion
that the officers did not employ coercive measures in addressing Appellant.
Appellant came downstairs at his stepfather’s request and voluntarily
answered the officers’ first question, which asked how long he had been home,
by breaking down in tears. He subsequently admitted to being in the car at
the time of the shooting and fleeing immediately thereafter. As such, the



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       Contrary to Appellant’s argument, the officers had other information in

addition to the anonymous tip to provide them with probable cause to arrest

Appellant.    The anonymous tip describing Appellant’s physical appearance

enabled the officers to pursue an eyewitness’s lead to Appellant’s home, where

they knocked on the door of the residence and asked permission to enter.

Appellant’s stepfather, who was free to refuse the officers’ request, allowed

the officers entry. From there, the grandfather called everyone downstairs,

and the officers observed that Appellant fit the description given over the

dispatch.

       Moreover, Appellant broke down in tears when asked how long he had

been home, and he volunteered he was in the car when the shooting took

place and fled the scene immediately thereafter. Only then did officers place

him under arrest and bring him to the stationhouse for further questioning.

       Therefore, the officers did not predicate their arrest solely on the

anonymous tip, but had ample additional information corroborating that tip

and pointing to Appellant as a key suspect in the victim’s shooting.

Accordingly, as we agree with the PCRA court that the officers possessed

probable cause to arrest Appellant, we discern no arguable merit with

Appellant’s first ineffective assistance of counsel claim.

____________________________________________


totality of circumstances present in this case bears no relation to that present
in either Wiley or other decisional law cited by Appellant on this issue.




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      In his second ineffectiveness claim, Appellant charges trial counsel with

refusing to permit him to testify on his own behalf.    Specifically, Appellant

alleges he advised counsel of his wish to tell the jury exactly what happened

on that night, but counsel insisted that he not take the stand lest the

Commonwealth impeach him with his prior crimen falsi record.         Appellant

asserts that he had no crimen falsi record, which rendered counsel’s advice

erroneous and constitutionally ineffective.

      A criminal defendant's decision whether to testify in his own defense or

remain silent is a basic fundamental right grounded in both our national and

Commonwealth's Constitutions. See U.S. Const. Amdt. 5; Pa. Const. Art. I,

§ 9. Generally, a defendant cannot successfully claim ineffective assistance

of counsel for failing to call him to testify after a defendant has voluntarily

waived his right to testify in a colloquy, unless certain exceptions are

established. Commonwealth v. Rigg, 84 A.3d 1080, 1086 (Pa.Super. 2014)

(citing Commonwealth v. Peay, 806 A.2d 22, 29 (Pa.Super. 2002));

Commonwealth v. Schultz, 707 A.2d 513, 520 (Pa.Super. 1997).

      In order to sustain a [PCRA] claim that counsel was ineffective for
      failing to advise the appellant of his rights in this regard, the
      appellant must demonstrate either that counsel interfered with his
      right to testify, or that counsel gave specific advice so
      unreasonable as to vitiate a knowing and intelligent decision to
      testify on his own behalf.

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (quoted by

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa.Super. 2013)).




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      The PCRA court rejected Appellant’s claim on two grounds. First, the

court observed that counsel’s advice was correct, for Appellant’s prior

conviction for the unauthorized use of a motor vehicle involved a crimen falsi

offense   that   may   be   admissible    for   impeachment      purposes.       See

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1263 (Pa.Super. 2014)

(holding 18 Pa.C.S. § 3928, unauthorized use of a motor vehicle is a crimen

falsi offense). Second, the court conducted an extensive colloquy of Appellant

on the issue where Appellant confirmed that, after lengthy consultation with

trial counsel, it was his own decision not to testify.          Appellant’s second

ineffectiveness claim, therefore, is devoid of merit.

      Finally, Appellant assails trial counsel for failing to file a post-trial motion

challenging the weight of the evidence, thereby waiving the issue or purposes

of direct appeal. “Nowhere in the testimony is [there] any evidence to show

that the Appellant acted with any malice[,]” Appellant maintains. Appellant’s

brief at 17. Counsel’s failure to file a post-sentence motion basing a weight

of the evidence claim upon this argument prevented Appellant from presenting

this meritorious claim, he contends.

      By claiming the element of malice went unproven at trial, however,

Appellant conflates his underlying weight of the evidence challenge with a

sufficiency challenge. It is well-settled that “[a] challenge to the weight of the

evidence is distinct from a challenge to the sufficiency of the evidence in that

the former concedes that the Commonwealth has produced sufficient evidence

of each element of the crime, “but questions which evidence is to be believed.”

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Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa.Super. 2006)

(emphasis added). Here, Appellant does not argue that evidence suggesting

the absence of malice was so clearly of greater weight than evidence of the

presence of malice that the verdict of guilt shocks one’s sense of justice.

Instead, he argues there was no evidence of malice, which asserts the distinct

challenge that the Commonwealth failed to produce sufficient evidence in the

case.4 As Appellant has, therefore, failed to advance his underlying weight of

the evidence claim properly, we find it is without arguable merit and may not

support his ineffective assistance of counsel claim.5

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/18



____________________________________________


4Appellant previously advanced this very argument within the context of his
sufficiency of the evidence challenge on direct appeal, to no avail.

5  The PCRA court denied Appellant’s weight of the evidence-based
ineffectiveness claim for reasons expressed in the trial court’s Pa.R.A.P.
1925(a) opinion addressing the merits of Appellant’s weight claim raised in his
Rule 1925(b) statement. As we agree with the trial court’s merits-based
analysis of Appellant’s weight claim, we, too, would reject Appellant’s claim
for the same reasons had Appellant presented an appropriate argument
warranting merits review.

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