J-S41039-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
JUAN RAMON MARTINEZ,                      :
                                          :
                 Appellant                :     No. 167 MDA 2019

          Appeal from the PCRA Order Entered December 27, 2018
               in the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0004881-2015

BEFORE:     LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:               FILED SEPTEMBER 13, 2019

      Juan Ramon Martinez (Appellant) appeals from the December 27, 2018

order dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

      The PCRA court provided the following background.

      [Appellant] was charged[, following a traffic stop and subsequent
      search of his residence,] with possession with intent to distribute
      a noncontrolled substance [(synthetic marijuana)], [possession
      with intent to deliver a controlled substance (cocaine)],
      possession of a small amount of marijuana, and possession of
      drug paraphernalia. On November 18, 2015, Appellant, through
      his first trial counsel, Jacob Gurwitz, Esq., filed an omnibus pre-
      trial motion. On May 12, 2016, th[e trial] court held a hearing
      addressing the motion and on May 19, 2016, [] denied
      Appellant’s motion. On July 25, 2016, Appellant through his
      counsel, filed a motion to reconsider Appellant’s amended
      omnibus pre-trial motion. On July 26, 2016, upon motion, th[e
      trial] court granted withdrawal of Attorney Gurwitz, and James
      Polyak, Esq.[,] entered his appearance as Appellant’s counsel.



*Retired Senior Judge assigned to the Superior Court.
J-S41039-19


      On August 1, 2016, th[e trial] court denied the motion to
      reconsider Appellant’s amended omnibus pre-trial motion.

            On September 30, 2016, Appellant, through [Attorney
      Polyak], filed a motion for enlargement of time to file [an]
      omnibus pre-trial motion and on October 3, 2016, th[e trial]
      court granted the motion. On October 17, 2016, Appellant,
      through counsel, filed a timely omnibus pre-trial motion[,
      challenging the initial stop of the vehicle. Specifically, Appellant
      argued that the traffic stop was unlawful because it was based
      upon failing to use a turn signal to change lanes, which Appellant
      argued was not a violation of the Motor Vehicle Code. Therefore,
      he sought suppression of all evidence seized from the vehicle,
      Appellant’s person, and Appellant’s home as fruit of the
      poisonous tree.] On November 2, 2016, after [a] hearing [was]
      held, th[e trial] court ordered both counsel[] to file briefs. Both
      counsel[] timely filed briefs and on February 10, 2017, th[e trial]
      court denied Appellant’s omnibus pre-trial motion.

            On November 14, 2017, upon motion, th[e trial] court
      granted withdrawal of Attorney Polyak, and Eric Winter, Esq.[,]
      entered his appearance as Appellant’s counsel. On December
      14, 2017, Appellant was found guilty of possession with intent to
      deliver a controlled substance [(cocaine)], possession of a small
      amount of marijuana, and possession of drug paraphernalia,
      after a bench trial. On January 31, 2018, th[e trial] court
      sentenced [] Appellant to an aggregate term of [9 to 23 months]
      of incarceration, 4 years of probation, and [a] $500 fine.

1925(a) Opinion, 2/28/2019, at 1 (unnumbered; unnecessary capitalization

omitted).

      On July 17, 2018, Appellant, through counsel, timely filed a PCRA

petition, alleging ineffective assistance of counsel for Attorney Polyak’s

failure to include additional grounds for suppression in his pretrial motion.1


1 Appellant also alleged Attorney Gurwitz provided ineffective assistance of
counsel for failing to file a sufficiently detailed pretrial motion. However,
(Footnote Continued Next Page)


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PCRA Petition, 7/14/2018, at ¶¶ 46-48. Specifically, Appellant alleged that

Attorney Polyak should have sought suppression because (1) the officers

could not have formed reasonable suspicion or probable cause to search the

vehicle based on the smell of synthetic marijuana, (2) even if they could,

because synthetic marijuana is not criminalized under Pennsylvania law,

they lacked probable cause to search the vehicle, and (3) the search of the

residence and backpack were done without the consent of Appellant, the

owner of the residence and backpack. Id. at ¶¶ 24-28, 33, 37-40.

      On October 11, 2018, a PCRA hearing was held.                  At the hearing,

Attorney Polyak testified that he did not raise a challenge to whether the

officers could identify the smell of synthetic marijuana in the motion to

suppress because he did not think it was “a valid issue appropriate for

pretrial relief.”   N.T., 10/11/2018, at 8.            For the same reason, Attorney

Polyak did not argue in the suppression motion that possession of the

specific type of synthetic marijuana here, while illegal under federal law, was

not a violation of any particular Pennsylvania statute at that time. Id. at 9.

As an additional reason, Attorney Polyak noted that the driver of the vehicle,

Pedro Rodriguez, told the officers, prior to the search of the vehicle, that
                       _______________________
(Footnote Continued)

Appellant abandoned this claim at the PCRA hearing, stating that “to the
degree there was any error on [Attorney Gurwitz’s] part, [it] was cured by
the [trial c]ourt giving [Attorney] Polyak the opportunity to file a
supplemental motion.     Accordingly, essentially anything that [Attorney]
Gurwitz did is moot[.]” N.T., 10/11/2018, at 4.



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Appellant’s bag contained synthetic marijuana.         Id. at 14-15.     Finally,

Attorney Polyak testified that he did not raise a challenge to the search of

the house or backpack because the discovery indicated that Yashira

Rodriguez lived at the house and had authority to consent to the search, and

he had discussed this with Appellant. Id. at 10-12. Attorney Polyak did not

challenge specifically the search of the backpack, which contained cocaine

and drug paraphernalia, because it was recovered from a common room, the

kitchen. Id. at 18-19. Instead, he testified that he raised the only issues he

deemed appropriate and eligible for pretrial relief. Id. at 20.

      The officers who conducted the traffic stop also testified at the PCRA

hearing.    The officers testified that they smelled synthetic marijuana

emanating from inside the vehicle as soon as Appellant opened his window.

The officers testified they were familiar with the distinctive smell of synthetic

marijuana from their experience because synthetic marijuana accounts for

approximately 80% of drug arrests in Reading, and the officers encounter it

“on an almost daily basis.” Id. at 23-24, 27-28, 32, 34.

      Additionally, the criminal investigator who conducted the search of the

residence testified.   He testified that he was under the impression that

Appellant lived at the apartment with his girlfriend, Yashira, and the two

were allowing Pedro, Yashira’s brother, to stay as a guest at the apartment

with his girlfriend, Carmen Morales.      Yashira, Pedro, and Carmen signed

consent forms to search the apartment. Id. at 41-42.


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     In his testimony, Appellant confirmed that Yashira was his girlfriend,

who had been living at the apartment with him for approximately nine

months and helped to pay the apartment’s bills, and that Pedro and Carmen

were staying there as guests.    Id. at 52-54.   Appellant also testified that

synthetic marijuana has a distinctive smell, though he qualified it as “weak.”

Id. at 51, 56.   Finally, Appellant testified that Attorney Polyak filed the

suppression motion without speaking to him beforehand. Id. at 55-56.

     Following the hearing, the PCRA court permitted both Appellant and

the Commonwealth to file briefs, which they did. On December 6, 2018, the

PCRA court issued notice of its intent to dismiss Appellant’s PCRA petition

pursuant to Pa.R.Crim.P. 907.2    Appellant timely filed a response, and on

December 27, 2018, the PCRA court dismissed Appellant’s PCRA petition.

     This timely-filed notice of appeal followed.3     On appeal, Appellant

claims that the PCRA court erred in dismissing his PCRA petition.        See

Appellant’s Brief at 4. We begin with our standard of review.

            This Court analyzes PCRA appeals in the light most
     favorable to the prevailing party at the PCRA level. Our review
     is limited to the findings of the PCRA court and the evidence of

2
 Rule 907 only applies to dismissal of claims without a hearing; thus, such
notice was unnecessary here as the PCRA court granted a hearing on all of
Appellant’s claims.
3 Appellant complied with Pa.R.A.P. 1925(b). In its Rule 1925(a) opinion,
the PCRA court referred this Court to its December 6, 2018 notice of intent
to dismiss for the reasons relied upon in dismissing Appellant’s PCRA
petition. 1925(a) Opinion, 2/28/2019, at 3 (unnumbered).



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      record and we do not disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error.
      Similarly, we grant great deference to the factual findings of the
      PCRA court and will not disturb those findings unless they have
      no support in the record. However, we afford no such deference
      to its legal conclusions. Where the petitioner raises questions of
      law, our standard of review is de novo and our scope of review is
      plenary. Finally, we may affirm a PCRA court’s decision on any
      grounds if the record supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).

      “Counsel is presumed to be effective, and the petitioner bears the

burden of proving to the contrary.” Commonwealth v. Brown, 196 A.3d

130, 150 (Pa. 2018).     “To establish ineffectiveness of counsel, a PCRA

petitioner must show the underlying claim has arguable merit, counsel’s

actions lacked any reasonable basis, and counsel’s actions prejudiced the

petitioner.”   Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super.

2013) (citations omitted).      “A failure   to satisfy any prong of the

ineffectiveness test requires rejection of the claim of ineffectiveness.”

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).

      We first address Appellant’s claim that counsel should have argued

that the smell of synthetic marijuana could not support probable cause to

search the vehicle.

      [I]n this Commonwealth, the law governing warrantless searches
      of motor vehicles is coextensive with federal law under the
      Fourth Amendment. The prerequisite for a warrantless search of
      a motor vehicle is probable cause to search; no exigency beyond
      the inherent mobility of a motor vehicle is required. The


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      consistent and firm requirement for probable cause is a strong
      and sufficient safeguard against illegal searches of motor
      vehicles, whose inherent mobility and the endless factual
      circumstances that such mobility engenders constitute a per
      se exigency allowing police officers to make the determination of
      probable cause in the first instance in the field.

Commonwealth        v.   Gary,   91   A.3d   102,   138   (Pa.   2014)   (Opinion

Announcing the Judgment of the Court).

      The level of probable cause necessary for warrantless searches
      of automobiles is the same as that required to obtain a search
      warrant. The well-established standard for evaluating whether
      probable cause exists is the “totality of the circumstances” test.
      This test allows for a flexible, common-sense approach to all
      circumstances presented. Probable cause typically exists 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. The evidence
      required to establish probable cause for a warrantless search
      must be more than a mere suspicion or a good faith belief on the
      part of the police officer.

Commonwealth v. Runyan, 160 A.3d 831, 837 (Pa. Super. 2017) (quoting

Commonwealth v. Lechner, 685 A.2d 1014, 1016 (Pa. Super. 1996)

(internal citations omitted)).

      In dismissing this claim, the PCRA court found the underlying claim to

be without merit. As discussed supra, the officers testified that they could

smell the distinctive odor of synthetic marijuana emanating from inside the

vehicle as soon as Appellant opened the window. The PCRA court credited

the testimony of the officers that they were familiar with this smell based on

their extensive experience with synthetic marijuana in Reading.          In fact,

even Appellant acknowledged at the PCRA hearing that synthetic marijuana


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has a distinctive smell.     Thus, we conclude the PCRA court’s factual

determination that the officers could identify synthetic marijuana by smell to

be supported by the record. Additionally, the driver of the vehicle, Pedro,

told the officers that the bag at Appellant’s feet contained synthetic

marijuana. As such, the officers had probable cause to search the vehicle.

See Commonwealth v. Gelineau, 696 A.2d 188, 192-94 (Pa. Super.

1997) (holding there was sufficient probable cause to search vehicle without

a warrant where officer smelled raw marijuana, but ultimately determining,

pre-Gary, that search was unreasonable because failed to establish exigent

circumstances). Because the underlying claim lacked merit, the PCRA court

did not err in concluding counsel was not ineffective for failing to raise this

issue in a suppression motion.

      Next, we consider Appellant’s claim that counsel should have sought

suppression on the basis that the specific type of synthetic marijuana

Appellant possessed, AB-PINACA, was not prohibited by Pennsylvania statute

at the time of the search.

      We reiterate that probable cause “exists 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.”    Runyan, supra.      In dismissing this claim, the PCRA

court noted that, at the time of the search, possession of synthetic

marijuana was illegal under federal law, and possession of certain types of


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synthetic marijuana was also prohibited under Pennsylvania law. Notice of

Intention to Dismiss, 12/6/2018, at 5-6.          Therefore, the PCRA court

concluded that when the officers “detected the smell of synthetic marijuana

from the vehicle, it was rational for the officers to believe that the vehicle

contained contraband [and] the issue of whether AB-PINACA was illegal does

not affect the validity of the vehicle search[.]” Id. at 6. We agree.

      In this case, the officers smelled synthetic marijuana and were told by

the driver that there was a bag containing synthetic marijuana in the car.

As such, the officers had sufficient knowledge “to warrant a person of

reasonable caution in the belief that an offense has been or [wa]s being

committed[,]” namely, the possession of synthetic marijuana.            Runyan,

supra.   That the specific type of synthetic marijuana recovered ultimately

was not a controlled substance under Pennsylvania statute at that time is of

no moment.      The totality of the circumstances warranted a reasonable

person to believe that a crime, possession of synthetic marijuana, was being

committed.    The officers had no way of knowing what specific variety of

synthetic marijuana was present until it was tested. In essence, the totality

of the circumstances did not indicate that the particular type of synthetic

marijuana Appellant possessed was anything other than a controlled

substance under federal and Pennsylvania law. Accordingly, the underlying

claim is without merit, and the PCRA court did not err in concluding that

counsel was not ineffective for failing to raise this suppression claim.


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      Finally, we address Appellant’s contention that counsel should have

challenged the search of the residence and backpack because, while three

individuals did consent, Appellant, the owner of the residence and backpack,

did not. Appellant’s Brief at 24.

      In determining whether another individual had authority to consent to

the search of the residence and backpack, we consider the doctrines of

common authority and apparent authority.             “The United States Supreme

Court has held that a third party has actual authority to consent to

a search if he/she ‘possesses common authority over or other sufficient

relationship    to   the   premises   or   effects   sought   to    be   inspected.’”

Commonwealth v. Basking, 970 A.2d 1181, 1188 (Pa. Super. 2009)

(quoting United States v. Matlock, 415 U.S. 164, 171 (1974)).                  “This

Court has held that the concept of common authority is based on mutual use

of the property rather than a mere property interest.”             Id. (citation and

quotation marks omitted).

      Regarding apparent authority,

      [i]n Commonwealth v. Blair, [] 575 A.2d 593, 598 ([Pa.
      Super. ]1990), this Court discussed the standard to be applied in
      determining whether a police officer reasonably believed that a
      person possessed apparent authority to consent:

               [W]e are not allowing carte blanche consent entries
               into residences with the police officer being able to
               ratify his entry at a later date suppression hearing by
               merely stating that he was mistaken as to the actual
               authority of the consenting party. We hold that the
               police officer’s reasonable mistake must be judged


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            from an objective standard based on the totality of
            the circumstances. Although the police officer’s state
            of mind is one factor to be considered in determining
            the reasonability of the mistake, it is not the only
            factor. Moreover, the police officer’s mistake must be
            reasonable. In ambiguous situations, those situations
            which would cause a reasonable person to question
            the consenting party’s    actual     authority   or   if
            the consenting party’s assertions of authority appear
            unreasonable, a police officer should make further
            inquiries    to    determine       the     status    of
            the consenting party. Reliance on a third party’s bald
            assertion   in   such     situations    could   subject
            any search to the remedy of the exclusionary rule.

      Id. (footnote omitted).

Basking, 970 A.2d at 1190-91.

      Here, Yashira had actual authority to consent to the search of the

house under the common authority doctrine as she and Appellant mutually

used the property.      Additionally, Yashira had common and apparent

authority to consent to the search of the backpack.      It was located in the

kitchen, a common area of the home, which she mutually used with

Appellant. There was no indication that the backpack belonged to Appellant.

In fact, Yashira told the investigator that the backpack belonged to her.

N.T., 10/11/2018, at 43, 46. Based on the totality of the circumstances, it

was entirely reasonable for the investigator to believe that Yashira had

authority to consent to the search of the backpack. As such, the underlying

claim is without merit, and the PCRA court did not err in dismissing this

ineffective-assistance-of-counsel claim.



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     Based on the foregoing, we conclude that the PCRA court did not err in

dismissing Appellant’s PCRA petition.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/13/2019




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