J-S49035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIMOTHY BALDWIN                            :
                                               :
                       Appellant               :   No. 353 MDA 2018

                 Appeal from the PCRA Order January 22, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0000769-2014


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

MEMORANDUM BY STEVENS, P.J.E.:                         FILED AUGUST 30, 2018

        Appellant Timothy Baldwin appeals from the Order entered in the Court

of Common Pleas of Lancaster County on January 22, 2018, denying his first

petition filed pursuant to the Post Conviction Relief Act (PCRA).1 We affirm.

        A prior panel of this Court reiterated the trial court’s summary of the

factual and procedural history of this case as follows:

        On October 26, 2013, Detective [Roland] Breault was
        investigating a report of shots fired in the 500 block of East
        Strawberry Street, Lancaster, PA. Eventually, Kyle Baldwin was
        identified as a suspect; he was ultimately arrested and charged
        with discharge of a firearm into an occupied structure and
        recklessly endangering another person. On October 28, 2013,
        Detective Breault spoke to the victims of that incident; the victims
        informed Detective Breault that "within two days after the
        incident, three black males had approached [him] at his residence
        and had made comments to him about it." Detective Breault
        testified that the "main part that really stuck was one of the
        individuals had commented that we watch your wife walk to work
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S49035-18


     everyday and that they're up there just to make money."
     Detective Breault began an investigation to identify the three
     black males who made those comments to the victims. Based on
     his investigation, Detective Breault prepared a photo array
     including eight similarly featured individuals; [Appellant] was one
     of the individuals in the photo array. The victim positively
     identified [Appellant] as the person who had approached the
     victim and made comments to him. A week later, Detective
     Breault received information that [Appellant] had parked his
     vehicle in front of the victim's residence and stood in front of the
     residence for a period of time. The victim called police, but
     [Appellant] was gone by the time officers arrived. On December
     6, 2013, Detective Breault received approval to file charges
     against [Appellant] for intimidation of a victim or witness, which
     is graded as a [third-degree felony], based on the fact that the
     underlying charge was a discharge of a firearm into an occupied
     structure. The charges were filed before the issuing authority on
     December 19, 2013.

     Detective Breault informed the other patrol officers that
     [Appellant] was a suspect in an intimidation related to the
     shooting of October 26, 2013, and that Detective Breault would
     be preparing charges and obtaining a warrant. Officer [J.] Hatfield
     was one of the patrol officers informed before going out on duty
     and he saw a memorandum that included a picture of [Appellant].
     Officer Hatfield believed that there was an actual warrant out for
     [Appellant’s] arrest and that [Appellant] was actually still out and
     not arrested on that warrant. On December 18, 2013, Officer
     Hatfield was on duty when he observed a vehicle traveling east on
     West Strawberry Street towards Vine Street; Officer Hatfield ran
     the registration tag on the vehicle, which [indicated] [Appellant]
     was the registered owner. Officer Hatfield asked over the radio if
     [Appellant] was still wanted on the warrant; Officer Weaver[1] and
     Detective Breault advised [Officer Hatfield] that the warrant was
     still active. As the vehicle turned left, Officer Hatfield observed the
     driver of the vehicle; Officer Hatfield indicated [that] he believed
     [Appellant] was operating the vehicle. Detective Breault advised
     Officer Hatfield that if Officer Hatfield stopped [Appellant], then
     Officer Hatfield should take [Appellant] into custody, as Detective
     Breault had charges prepared for him; no warrant had been
     obtained at that time. Officer Hatfield called for other officers and
     they conducted a felony stop. Three occupants were in the car;
     [Appellant] was called out first and [was] escorted [] back to the
     police vehicles. Officer [Jared] Snader handcuffed [Appellant] and

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     transported him from the scene.

     Before transporting [Baldwin], Officer Snader searched
     [Appellant] at the scene, searching his pockets and conducting a
     pat-down for weapons; Officer Snader found $770 in [Appellant’s]
     pockets. During booking, [Appellant] was required to remove his
     shoes; upon removal, Officer Snader found that [Appellant’s]
     pants had drawstrings at the bottom and [Appellant’s] right pant
     leg was tucked into his boot and the drawstring was tight at the
     bottom. After releasing the drawstrings, Officer Snader found a
     plastic sandwich bag that contained sixty-nine (69) smaller bags
     of heroin and thirty-six (36) bags of crack cocaine. No
     paraphernalia related to the heroin or cocaine was found on
     [Appellant]. [Appellant] did not present any characteristics of
     someone who is under the influence or addicted to heroin or
     cocaine. The narcotics were sent to the Pennsylvania State Police
     Harrisburg Regional Crime Laboratory, where it was confirmed
     that the substances were, in fact, heroin and cocaine.

     [Appellant] was charged with [PWID-heroin and PWID-cocaine].
     On April 14, 2014, [Appellant] filed a motion to suppress evidence
     and a suppression hearing was held on October 27, 2014. The
     suppression motion was denied based on the [trial court's]
     findings that Detective Breault had probable cause to arrest
     [Appellant] as of December 6, 2013, for felony charges of
     intimidation of a victim and that probable cause was transferrable
     to Officer Hatfield, particularly when Officer Hatfield received the
     information both in memo form before going on duty and by
     personal contact via radio with Detective Breault prior to the stop.
     A stipulated bench trial followed the suppression hearing. The only
     additional testimony came from the forensic scientist who tested
     and confirmed the narcotics and from Officer Thomas Ginder, a
     member of the Selective Enforcement Unit, who testified that
     based on the amount of drugs, the presence of a significant
     amount of money, and the lack of paraphernalia, he believed the
     narcotics were possessed with the intent to deliver, as opposed to
     personal use. The [trial court] found [Appellant] guilty of both
     charges. A pre-sentence investigation was ordered.

     On January 15, 2015, [Appellant] was sentenced to an aggregate
     sentence of ten (10) to fifty (50) years; at Count 1 [PWID-cocaine,
     Appellant] received a sentence of five (5) to twenty (20) years
     and at Count 2 [PWID-heroin, Appellant] received a consecutive
     sentence of five (5) to thirty (30) years. [Baldwin's] sentencing

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      guidelines indicated the standard range for the charge of [PWID-
      heroin] was 24-30 months; the standard range for the charge of
      [PWID-cocaine] was 27-32 months. [Appellant] had a prior record
      of felony drug charges, which increased his maximum penalty for
      the heroin charge to thirty (30) years and for the cocaine charge
      to twenty (20) years. At sentencing, the Commonwealth pointed
      out [Appellant’s] lack of verifiable work history in contrast to the
      leisure activities [Appellant] reported in his pre-sentence
      investigation, such as riding four-wheelers and vacationing.
                                      ***
      On January 23, 2015, [Appellant] filed a post-sentence motion to
      reconsider and modify sentence, claiming the imposition of the
      statutory maximum sentence for each count to run consecutively
      to each other [ ] was unreasonable and that the sentencing judge
      improperly considered [Appellant’s] prior record, as it was already
      factored into the sentencing guidelines. After giving the
      Commonwealth the opportunity to respond, the [trial court]
      denied [Appellant’s] post-sentence motion on February 2, 2015.
      __
      1Officer Weaver's first name does not appear in the notes of

      testimony.

Commonwealth v. Baldwin, No. 436 MDA 2015, unpublished memorandum

at 1-4 (Pa.Super. filed December 2, 2015) (some brackets in original) quoting

Trial Court Opinion, 4/28/15, at 1-5.

      On March 4, 2015, Appellant filed a notice of appeal, and this Court

denied the same in the aforecited December 2, 2015, Memorandum decision.

The Pennsylvania Supreme Court denied Appellant’s Petition for Allowance of

Appeal on May 11, 2016.

      On December 14, 2016, Appellant filed a timely, pro se Motion for Post

Conviction Collateral Relief. In its Order entered on January 4, 2017, the PCRA

court appointed PCRA counsel who filed an Amended Motion for Post

Conviction Collateral Relief on March 6, 2017, and a supplement thereto on


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June 13, 2017. On September 6, 2017, the PCRA court held an evidentiary

hearing. In an Opinion and Order filed on January 22, 2018, the PCRA court

denied Appellant’s PCRA Petition.     In doing so, the court found Appellant

essentially was attempting to relitigate the existence of probable cause

underlying his arrest, an issue this Court had addressed and rejected on direct

appeal, by couching it as an ineffective assistance of counsel claim.

      Appellant filed a timely notice of appeal, and on February 21, 2018, the

PCRA court entered its Order pursuant to Pa.R.A.P. 1925(b). Appellant filed

his Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P.

1925(b) on March 12, 2010. On March 27, 2018, the PCRA court filed its Rule

1925(a) Opinion wherein it reiterated that Appellant improperly is seeking to

relitigate the existence of probable cause underlying his arrest, because this

Court previously addressed this claim on direct appeal.      The Court further

indicated its January 22, 2018, Opinion sufficiently articulated its reasons for

denying Appellant’s PCRA petition and incorporated that document for

purposes of Pa.R.A.P. 1925(a).

      In his brief, Appellant presents the following Statement of Questions

Involved:

      I.    Whether the PCRA court erred, as a matter of law, when it
      determined Appellant’s claim related to trial counsel’s ineffective
      assistance in failing to properly cross-examine Detective Rolland
      Breault, III at Appellant’s suppression hearing lacked merit?

      II.   Whether the PCRA court erred, as a matter of law, when it
      denied Appellant an evidentiary hearing on his three claims of
      ineffective assistance related to trial and appellate counsel’s

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      failure to challenge the appropriate grading of the intimidation of
      a witness allegations so that a concession as to probable cause
      existing for the misdemeanor version of the charge would have
      prohibited Appellant’s warrantless arrest? Whether the PCRA
      court also erred when it determined Appellant’s grading-based
      claims were previously litigated; the claims were related to the
      suppression matter, but not the same claim or issue as was
      previously litigated by trial and appellate counsel.


Brief for Appellant at viii.

      Our standard of review for issues arising from the denial of PCRA relief

is well-settled:

      “Our review of a PCRA court’s decision is limited to examining
      whether the PCRA court’s findings of fact are supported by the
      record, and whether its conclusions of law are free from legal
      error.” Commonwealth v. Hanible, 612 Pa. 183, 204, 30 A.3d
      426, 438 (2011) (citing Commonwealth v. Colavita, 606 Pa. 1,
      21, 993 A.2d 874, 886 (2010)). We view the findings of the PCRA
      court and the evidence of record in a light most favorable to the
      prevailing   party.   Id....  “The   PCRA    court’s   credibility
      determinations, when supported by the record, are binding on this
      Court; however, we apply a de novo standard of review to the
      PCRA court’s legal conclusions.” Commonwealth v. Roney, 622
      Pa. 1, 16, 79 A.3d 595, 603 (2013).

Commonwealth v. Mason, 634 Pa. 359, 387, 130 A.3d 601, 617 (2015).

      Counsel is presumed to be effective. Commonwealth v. Washington,

592 Pa. 698, 712, 927 A.2d 586, 594 (2007). To overcome this presumption

and plead and prove ineffective assistance of counsel, a petitioner must

establish by a preponderance of the evidence: (1) that the underlying issue

has arguable merit; (2) counsel’s actions lacked an objective reasonable

basis; and (3) actual prejudice resulted from counsel’s act or failure to act.

Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa.Super. 2013) (en banc),


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appeal denied, 625 Pa. 664, 93 A.3d 463 (2014). Failure to establish any one

of these prongs will defeat an ineffectiveness claim. Mason, 634 Pa. at 388,

130 A.3d at 618. In addition,

      An assessment of appellate counsel's ineffectiveness for failing to
      raise a claim of trial counsel's ineffectiveness involves the same
      type of proof required for any claim of ineffective assistance of
      counsel. The petitioner has the burden of pleading and proving
      that the underlying claim has arguable merit (i.e., that trial
      counsel in fact rendered ineffective assistance in the manner that
      should have been alleged on appeal); appellate counsel did not
      have a reasonable strategic basis for failing to raise the claim; and
      the petitioner was prejudiced, as there is a reasonable probability
      that the outcome of the direct appeal would have been different if
      appellate counsel had raised the omitted claim. Commonwealth
      v. Blakeney, 108 A.3d 739, 750 (Pa.2014), cert. denied, ––– U.S.
      ––––, 135 S.Ct. 2817, 192 L.Ed.2d 857 (2015); Commonwealth
      v. Lopez, 578 Pa. 545, 854 A.2d 465, 469 & n. 5 (2004).

Commonwealth v. Williams, 636 Pa. 105, 154, 141 A.3d 440, 470 (2016).

      Appellant first maintains trial counsel failed to cross-examine “properly”

Detective Breault at the suppression hearing on the following topics which he

opines could have been used as “impeachment fodder”: “Detective Breault’s

status as the prosecuting officer in both Kyle Baldwin and Appellant’s case;

the grading of the intimidation charge; the timing and context of the

information provided by the victim(s); the existence of an arrest warrant; and

any mention of Appellant having access to firearms.” Brief for Appellant at

27.   Appellant goes on to discuss numerous alleged inconsistencies in the

Detective’s testimony at the suppression and PCRA hearings and claims that

“[w]hile   each   of   these   unaddressed   inconsistencies   or   questionable

explanations may not have individually given Appellant’s claim arguable merit,

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the cumulative prejudice derived from the totality of them provides the

arguable merit for Appellant’s claim.” Id. at 38. Appellant further reasons

that:

        [w]hen Attorney Dougherty failed to thoroughly impeach the
        credibility of the Commonwealth’s only witness capable of
        providing any basis of probable cause for Appellant’s warrantless
        arrest, Appellant suffered great prejudice. Not only was his
        suppression motion denied, said denial virtually guaranteed his
        felony drug convictions.

Id. at 43.

         Upon our review of the record, and in particular the transcript from the

September 6, 2017, PCRA hearing, we agree with the PCRA court that

Appellant’s first issue presents a new theory of relief pertaining to the issue

of whether officers had probable cause to make a felony arrest. In

Commonwealth v. Howard, 553 Pa. 226, 280–281, 719 A.2d 233, 240

(1998), the Pennsylvania Supreme Court held that a petitioner “is precluded

from raising a claim of post-conviction review that was previously and finally

litigated on direct appeal.... Further, an appellant cannot obtain collateral

review of previously litigated claims by alleging ineffective assistance of prior

counsel and presenting new theories of relief.”

         On   direct   appeal,   Appellant   maintained   that   his   arrest   was

unconstitutional because of both the lack of a warrant and absence of probable

cause. This Court recognized it was undisputed that police did not have a

valid arrest warrant at the time of Appellant’s arrest, despite the fact that

some officers involved were under the mistaken belief that a valid warrant had

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been issued at some point. Commonwealth v. Baldwin, No. 436 MDA 2015,

unpublished memorandum at 7 (Pa.Super. filed December 2, 2015).             We

ultimately held:

               Instantly, Detective Breault was investigating reports
      that multiple individuals were intimidating the victims of the
      October 26, 2013 shooting. The perpetrator of that crime was
      [Appellant’s] brother Kyle.      Kyle Baldwin was charged with
      discharging a firearm into an occupied structure, which is graded
      as a third-degree felony. See 18 Pa.C.S. § 2707.1(b).
               Detective Breault received reports that, within a couple
      of days after the shooting, three individuals had threatened and
      intimidated the victims of Kyle Baldwin’s shooting. Detective
      Breault presented a photo array to the victim. The victim selected
      [Appellant’s] photograph from the eight contained in the array.
      One week later, [Appellant] again appeared at the victim’s home
      and parked his car in front of the residence, but he left before he
      could be apprehended.
               From this information, a reasonable police officer could
      have concluded that probable cause existed to arrest [Appellant]
      for the crime of intimidation of a witness, which would have been
      graded as a felony because the underlying offense, discharging a
      firearm into an occupied structure, was a felony. See 18 Pa.C.S.
      § 4952(b)(4). [Appellant] appeared at the home of the victims of
      a crime that his brother perpetrated and threatened the
      occupants. One of the victims identified [Appellant] as one of the
      actors. Finally, [Appellant] revealed himself as one of the actors
      when he went back to the victim’s home a short time later and
      parked in front of the residence. Probable cause existed to arrest
      [Appellant] for a felony, and, consequently, the arrest was not
      unconstitutional. The trial court correctly did not suppress the
      evidence that resulted from [Appellant’s] arrest.

Id. at 8-9 (footnote omitted).

       At the PCRA hearing, Appellant initially questioned trial counsel Dennis

Dougherty regarding his strategy in choosing not to have the preliminary

hearing transcribed and in deciding not to record it on his cell phone. N.T.

PCRA Hearing, 9/6/17, at 34-35, 42-44. Appellant briefly explored Attorney

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Dougherty’s cross-examination of Detective Breault at the suppression

hearing and asked him if he would be surprised to learn it spanned just three

pages. Id. at 40. Attorney Dougherty stated he was not surprised, and after

showing Attorney Dougherty the transcript, Appellant asked him if: “there

[is] anything that jumps out at you based on hearing Detective Breault’s

testimony earlier and some of our questions, is there anything that you feel

like you missed or you could have delved into further that you would have

done differently?”   Id. at 41.     Attorney Dougherty responded, [n]ot

particularly, no[]” to this inquiry. Id. Appellant did not question Attorney

Dougherty about specific areas into which the latter might have chosen to

delve more fully or suggest how additional questioning of Detective Breault

might have bolstered his suppression motion.

     “Where matters of strategy and tactics are concerned, counsel's
     assistance is deemed constitutionally effective if he chose a
     particular course that had some reasonable basis designed to
     effectuate his client's interests.” Commonwealth v. Colavita,
     606 Pa. 1, 993 A.2d 874, 887 (2010) (quoting Commonwealth
     v. Howard, 553 Pa. 266, 719 A.2d 233, 237 (1998)). “A finding
     that a chosen strategy lacked a reasonable basis is not warranted
     unless it can be concluded that an alternative not chosen offered
     a potential for success substantially greater than the course
     actually pursued.” Id. A claim of ineffectiveness generally cannot
     succeed “through comparing, in hindsight, the trial strategy
     employed with alternatives not pursued.” Commonwealth v.
     Miller, 572 Pa. 623, 819 A.2d 504, 517 (2002).

Commonwealth v. Sneed, 616 Pa. 1, 19–20, 45 A.3d 1096, 1107 (2012).

     As noted previously, Attorney Dougherty questioned Detective Breault

at the suppression hearing regarding the information that led to Appellant’s


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detention, and this Court found that probable cause existed for Appellant’s

arrest. In doing so, we noted no deficiencies in the officer’s testimony and

stressed it was undisputed that officers did not have a valid arrest warrant for

Appellant at the time the heroin and cocaine was seized; notwithstanding, we

found that from the information the victims had provided, probable cause

existed to arrest him for a felony. “The mere fact that current counsel might

have utilized an alternative strategy does not render the approach of trial

counsel ineffective.”   Id.   Accordingly, the claim that Attorney Dougherty

counsel failed to “properly” cross-examine Detective Breault fails.

       Appellant next asserts the trial court erred when it denied him an

opportunity to explore at the PCRA hearing three claims of trial and appellate

counsels’ failure to challenge the appropriate grading of the intimidation of a

witness allegations. However, “[t]here is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008),

appeal denied, 598 Pa. 764, 956 A.2d 433 (2008). “A reviewing court on

appeal must examine each of the issues raised in the PCRA petition in light of

the record in order to determine whether the PCRA court erred in concluding

that there were no genuine issues of material fact and denying relief without

an evidentiary hearing.” Commonwealth v. Jordan, 772 A.2d 1011, 1014

(Pa.Super. 2001).


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      Appellant’s arguments to the contrary, the PCRA court entertained a

great deal of argument from him regarding the grading of the intimidation

charge at the PCRA hearing. N.T.PCRA Hearing, 9/6/17, at 4-15. Appellant

explained that the relevance of the grading of the offense had “to do with the

probable cause for the arrest and Detective Breault’s credibility regarding the

information he had prior to those charges.”     Thus, once again, Appellant’s

arguments admittedly pertain to the previously decided issue of the existence

of probable cause for his arrest. As the PCRA court stated:

             [Appellant] persists with the claim that probable cause did
      not exist to effectuate a felony arrest. In these proceedings, he
      appears to argue that Detective Breault, this [c]ourt and the
      Superior Court improperly graded [Appellant’s] intimidation
      charge as a felony of the third degree. [Appellant] claims that this
      [c]ourt and the Superior Court "automatically" and improperly
      graded the charge as a felony of the third degree because the
      underlying charge, discharge of a firearm into an occupied
      structure, was a felony of the third degree.34 [Appellant] claims
      that the record lacks evidence or testimony that would
      demonstrate [Appellant] threatened to employ force or violence
      upon the witness or victim or any other person as required by 18
      Pa.C.S.A. § 4952(b)(1) to make the offense a felony.35
             In support of his claim, [Appellant] takes single statements
      of both courts completely out of context and ignores other
      relevant findings and testimony, including that Detective Breault
      was informed and believed that [Appellant] had made threats to
      one of the victims concerning the other victim. In its Opinion on
      direct appeal, this [court] specifically noted the comments
      allegedly made by [Appellant] concerning watching the victim's
      wife walk to work every day.36 Additionally, the Superior Court
      specifically noted that "Detective Breault received reports
      that...three individuals had threatened and intimidated the victims
      of Kyle Baldwin's shooting."37 Testimony at the suppression
      hearing established that both the victims and Detective Breault
      perceived [Appellant] to be making threats towards the victims.38
      The totality of the circumstances resulting in Detective Breault's
      perception that [Appellant] had made a threat of violence, the only

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     perception that was relevant in the suppression proceedings,39
     was further expounded by Detective Breault at the PCRA hearing.
     Detective Breault testified that from his perspective, a relative of
     the suspect in the underlying charge, a charge involving the
     discharge of a firearm into an occupied structure, had approached
     a victim of that incident, without having any prior contact or
     relationship with or any other reason to approach that victim, and
     made comments concerning the relative, the incident and the
     reason for their presence in the neighborhood, and then
     commented that he watches the victim's wife, the other victim of
     the underlying incident, walk to work every day.40 Detective
     Breault further explained that in addition to the information he
     had received from the victim(s), he knew that a gun and a lot of
     drugs had been seized in connection with the incident and that
     [Appellant] himself was suspected of selling drugs in the area.41
     The record and prior findings of both this [c]ourt and the Superior
     Court clearly establish that at the time of [Appellant’s] arrest,
     Detective Breault had probable cause to believe that [Appellant]
     had threatened violence upon a witness, victim or other person to
     intimidate or attempt to intimidate a witness or victim in a case
     involving a felony of the third degree. Detective Breault, therefore,
     had probable cause to believe [Appellant] had committed a felony.
     __
     34 Amended Mot. for Post-Conviction Collateral Relief, 03/06/17,

     1 19(d), 21(b).
     35See, Amended Mot. for Post-Conviction Collateral Relief,

     03/06/17,1 19(d), 21(b), Ex. F; N.T. PCRA Hearing, 09/06/17, pp.
     6-8.
     36 Opinion, 04/28/15, pp. 2, 9.
     37  Com. v. Baldwin, No. 436 MDA 2015, 12/02/2015
     Memorandum, p. 8.
     38 N.T. Suppression Hearing/Bench Trial, 10/27/14, pp. 7, 10, 16-

     17.
     39The standard for determining whether probable cause exists for

     "a warrantless arrest is governed by the totality of the
     circumstances. Com. v. Evans, 661 A.2d 881, 884 (Pa.Super.
     1995)(citing Illinois v. Gates, 462 U.S. 213 (1983)). The Court in
     Evans found probable cause where the facts and circumstances
     within the officer's knowledge are sufficient to warrant a person
     of reasonable caution in the belief that an offense has been or is
     being committed. Id.

Trial Court Opinion, 1/22/18, at 8-10.


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      Upon our review of the record, we agree with the trial court’s analysis.

At the suppression hearing, Attorney Dougherty argued before the trial court

“that probable cause didn’t exist to stop [Appellant],” N.T. Suppression,

12/27-10/28/14, at 34, and Appellate counsel raised the same issue on direct

appeal.      However, Appellant now claims that these arguments waived

Appellant’s ability to concede “probable cause existed for the misdemeanor

version of the offense,” which would have prevented a warrantless arrest and

mandated the exclusion of all evidence derived from Appellant’s arrest. Brief

for Appellant at 45. As the Commonwealth argues, Appellant’s concession

that probable cause existed for a misdemeanor Intimidation charge would not

have changed the Commonwealth’s burden of proving at the suppression

hearing that officers had probable cause to arrest Appellant, because it was

undisputed     that   Appellant   had    been    arrested   without   a   warrant.

Commonwealth’s Brief at 19.        This Court previously determined on direct

appeal that this burden had been met and, consequently, Appellant’s arrest

was legal.

     The PCRA court was able to decide without an evidentiary hearing on

these claims that they lacked merit. Thus, based on the foregoing, it follows

that Collins's ineffectiveness of counsel claims must fail. See Commonwealth

v. Hall, 582 Pa. 526, 872 A.2d 1177 (2005) (holding that three-prong

standard for reviewing ineffectiveness claims applies to the performance of

counsel at any level of representation); Commonwealth v. Busanet, 572


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Pa. 535, 545, 817 A.2d 1060, 1066 (2002), cert. denied, 540 U.S. 869 (2003)

(ruling that “failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim”).

      Finding no prejudice arising from trial counsel's alleged failure to

challenge the appropriate grading of the intimidation of a witness allegations,

we further conclude that appellate counsel cannot be deemed ineffective for

failing to pursue such issue. See Commonwealth v. Jones, 590 Pa. 202,

912 A.2d 268, 278 (2006) (holding that counsel cannot be deemed ineffective

for failing to raise a meritless claim). Accordingly, Appellant properly was

denied relief.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/30/2018




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