J-S28021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DEVON DAUSJAY MIMS CARTER

                            Appellant                 No. 1270 WDA 2016


                 Appeal from the PCRA Order September 13, 2016
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0016495-2013


BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                      FILED: OCTOBER 23, 2017

       Devon Dausjay Mims Carter appeals from the September 13, 2016

order1 entered in the Allegheny County Court of Common Pleas dismissing

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-46. We affirm.
____________________________________________


       *   Retired Senior Judge assigned to the Superior Court.

       1 In his August 24, 2016 notice of appeal, Mims Carter purports to
appeal from the PCRA court’s order dated August 16, 2016 and entered
August 17, 2016, notifying him of the court’s intent to dismiss his petition.
Order of Court, 8/17/16. This order was not a final, appealable order.
However, on September 13, 2016, the PCRA court entered an order
dismissing Mims Carter’s petition without a hearing.       Order of Court,
9/13/16. Therefore, we will treat the instant appeal as filed from the
September 13, 2016 order. See Pa.R.A.P. 905(a)(5) (“A notice of appeal
filed after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof.”).
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      On direct appeal, this Court adopted the trial court’s summary of the

factual history of this matter as follows:

            Officer Josh Alfer of the McKeesport Police Department,
         a police officer with nine years’ experience, testified that
         he was on patrol duty on October 29, 2013. At 2:30 a.m.,
         he made a traffic stop on a gold Pontiac Sunfire for failing
         to signal prior to making a left turn. [Mims Carter] was
         seated in the front passenger seat of the car, and a female
         was the driver. Officer Alfer radioed the traffic stop into
         dispatch, and Officer Bryan Easter responded as back-up.

            Officer Alfer observed [Mims Carter] leaning forward in
         his seat, reaching towards his right side pocket in between
         his hip and the door. Officer Alfer instructed all occupants
         of the car to keep their hands where he could see them.
         [Mims Carter] originally complied with the officer’s
         instruction, but later reached down towards his right side,
         out of the view of the officer. Officer Alfer testified that the
         area in which the car was stopped was a high crime area
         with a history of violent crimes including numerous
         shootings. When [Mims Carter] was again asked to show
         his hands, Officer Alfer observed that [Mims Carter]’s
         breathing was increased, and [Mims Carter] began to look
         from right to left in what the officer described as a nervous
         motion. Officer Alfer testified that, due to [Mims Carter]’s
         movements within the vehicle, and the officer’s concern
         that [Mims Carter] may have a firearm on his person,
         Officer Alfer instructed [Mims Carter] and the female driver
         to exit the vehicle.

            Officer Alfer observed [Mims Carter] exit the vehicle and
         saw Officer Easter begin a pat-down search of [Mims
         Carter]. As Officer Easter approached [Mims Carter]’s
         right front pocket, [Mims Carter] immediately began to pull
         away and a struggle ensued between [Mims Carter] and
         Officer Easter. Officer Alfer came around the car to assist.
         He instructed [Mims Carter] to stop moving. When [Mims
         Carter] failed to comply, Officer Alfer discharged his Taser
         and [Mims Carter] was subsequently handcuffed.

           Officer Easter also testified to his encounter with [Mims
         Carter]. Officer Easter testified that, as he approached the


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        vehicle, [Mims Carter] kept looking over his shoulder to
        see where the officer was. Officer Easter observed [Mims
        Carter] move his shoulder and reach towards the right side
        of his body near his waistband, pocket area.         [Mims
        Carter]’s hands were not in plain view at that time. After
        Officer Alfer asked the driver to exit the vehicle, Officer
        Easter also asked [Mims Carter] to exit the car. [Mims
        Carter] was directed to face the vehicle and place his
        hands behind his head, interlocking his fingers. [Mims
        Carter] put his hands on his head but did not interlock his
        fingers.

           Officer Easter began a pat down of [Mims Carter] for
        weapons. As the officer brought his hand down toward
        [Mims Carter]’s right pocket area, [Mims Carter]
        immediately started to spin away from the officer. Officer
        Easter felt something in [Mims Carter]’s pocket, but did
        not know at that time what it was. [Mims Carter] kept
        trying to break away from Officer Easter, who instructed
        him to stop or he would be tased. [Mims Carter] did not
        comply and Officer Alfer deployed his Taser. After [Mims
        Carter] had been handcuffed, Officer Easter searched
        [Mims Carter] incident to arrest and recovered from [Mims
        Carter]’s right pocket a white plastic grocery bag
        containing numerous packets of heroin.

Commonwealth v. Mims-Carter, No. 536 WDA 2015, unpublished mem.

at 1-3 (Pa.Super. filed April 14, 2016) (quoting Trial Ct. Op., 5/29/15, at 3-

4).

      On June 20, 2014, Mims Carter filed a motion to suppress the physical

evidence. On February 19, 2015, following a hearing, the trial court denied

the motion.   The matter immediately proceeded to a stipulated non-jury

trial. The trial court found Mims Carter guilty of possession with intent to

deliver a controlled substance (heroin) (“PWID”), three counts of possession




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of a controlled substance (heroin), possession of drug paraphernalia, and

resisting arrest.2     On February 27, 2015, for the PWID conviction, the trial

court sentenced Mims Carter to a term of 11 months and 15 days to 23

months’ incarceration, as well as 3 years’ probation, with credit for 443 days

served. The trial court did not impose a further penalty for Mims Carter’s

remaining convictions.        Accordingly, the trial court ordered Mims Carter

released on parole.

       On March 27, 2015, Mims Carter filed a notice of appeal. On April 14,

2016, this court affirmed Mims Carter’s judgment of sentence. On April 22,

2016, Mims Carter filed a pro se PCRA petition. The PCRA court appointed

counsel, and Mims Carter filed an amended PCRA petition on June 6, 2016.

On August 15, 2016, the Commonwealth filed an answer to the petition. On

August 17, 2016, the PCRA court filed a notice of intent to dismiss Mims

Carter’s petition. On September 13, 2016, the PCRA court entered an order

dismissing Mims Carter’s petition without a hearing.       Mims Carter timely

appealed to this Court.

       Mims Carter’s sole issue on appeal is: “Whether the trial court erred in

dismissing [Mims Carter]’s Petition and finding counsel was effective where

trial counsel waived a suppression challenge to this search when the record


____________________________________________


       235 P.S. §§ 780-113(a)(3), (a)(16), (a)(32), and 18 Pa.C.S. § 5104,
respectively.



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shows that the police lacked reasonable suspicion to support a second

detention after the traffic stop concluded?” Mims Carter’s Br. at 3.

      Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). Furthermore,

            We review an order dismissing a petition under the
         PCRA in the light most favorable to the prevailing party at
         the PCRA level. This review is limited to the findings of the
         PCRA court and the evidence of record. We will not disturb
         a PCRA court’s ruling if it is supported by evidence of
         record and is free of legal error.

            This Court may affirm a PCRA court’s decision on any
         grounds if the record supports it.         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. Further, where the petitioner raises
         questions of law, our standard of review is de novo and
         our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super. 2012)

(quotation and internal citations omitted).

      When analyzing claims for ineffective assistance of counsel, we begin

with the presumption that counsel was effective.         Commonwealth v.

Spotz, 18 A.3d 244, 259-60 (Pa. 2011). “[T]he defendant bears the burden

of proving ineffectiveness.”   Commonwealth v. Ligons, 971 A.2d 1125,

1137 (Pa. 2009).    To overcome the presumption of effectiveness, a PCRA

petitioner must demonstrate that: “(1) his underlying claim is of arguable

merit; (2) counsel had no reasonable basis for his action or inaction; and (3)

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the petitioner suffered actual prejudice as a result.        If a petitioner fails to

prove any of these prongs, his claim fails.” Commonwealth v. Spotz, 84

A.3d 294, 311 (Pa. 2014) (internal quotation and citations omitted).

       Mims Carter claims that trial counsel was ineffective for failing to

assert in the suppression motion that the evidence was the fruit of an illegal

seizure.3    Specifically, Mims Carter’s underlying claim is that the police

lacked reasonable suspicion for a subsequent investigatory detention of

Mims Carter following the end of the initial traffic stop.

       This Court has previously stated that, for his safety, an officer

conducting a valid traffic stop has the absolute authority to order the

occupants of a vehicle to alight, even absent reasonable suspicion of criminal

activity. Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa.Super. 2016).

However, this right is extinguished once the primary traffic stop has

concluded.      Id.    “The matter of when a traffic stop has concluded or

otherwise given way to a new interaction does not lend itself to a ‘bright[-

]line’ definition.” Commonwealth v. Reppert, 814 A.2d 1196, 1202

(Pa.Super. 2002). We have observed:

____________________________________________


       3At the suppression hearing, Mims Carter’s counsel conceded that “the
police officers had the right to have my client get out, pat him down for their
. . . safety and for anyone else’s safety.” N.T., 2/19/15, at 35. Counsel
argued that the officers’ search, pursuant to Terry v. Ohio, 392 U.S. 1
(1968), only allowed them to search for weapons and did not serve as a
pretext to search for contraband. See N.T., 2/19/15, at 35.




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               The United States Supreme Court has held that
           authority for a seizure pursuant to a traffic stop ends
           “when tasks tied to the traffic infraction are—or reasonably
           should have been—completed.” Rodriguez v. United
           States, –––U.S. ––––, 135 S.Ct. 1609, 1614, 191 L.Ed.2d
           492 (2015). Applying this principle, this Court’s analysis .
           . . has turned on whether the purpose of the traffic stop
           was accomplished prior to ordering occupants out of the
           vehicle, and whether the occupants had previously been
           issued citations or told that they were free to leave.

Palmer, 145 A.3d at 173.

       At the suppression hearing, Officer Alfer testified that, prior to asking

the occupants of the vehicle to exit, he handed back the driver’s cards and

information and explained why she had been stopped. N.T., 2/19/15, at 19-

20. He also testified that he had not issued a citation to the driver at the

time he handed back her cards and information.              Id. at 23.   Officer Alfer

said that Carter’s movements during the course of his returning the

driver’s information had made him concerned that there might be a

firearm in the vehicle. Id. at 20. Therefore, the officers asked Mims Carter

and the driver to exit the vehicle.            Because the “tasks tied to the traffic

infraction” were not completed,4 we conclude that the traffic stop had not




____________________________________________


       4Officer Alfer’s testimony that handing back the driver’s information
indicated the end of the stop, see N.T., 2/19/15, at 20, does not change our
analysis, because by that time his reasonable concern for his safety had
already arisen.




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ended and, at the time they asked the vehicle’s occupants to alight, the

officers retained authority for a seizure pursuant to the stop. 5

       Because the initial traffic stop had not concluded, Carter’s underlying

claim that he was subject to a second seizure unsupported by reasonable

suspicion lacks merit. Therefore, the PCRA court appropriately dismissed his

petition.6

       Order affirmed.




____________________________________________


       5 We note that Officer Easter’s pat-down of Carter, prior to arrest, was
supported by reasonable suspicion. An officer may conduct a Terry frisk of
an individual he is investigating if he has a reasonable belief that the
individual is armed and dangerous to the officer or others. Commonwealth
v. Gray, 896 A.2d 601, 605-06 (Pa.Super. 2006). “In determining whether
a Terry frisk was supported by a sufficient articulable basis, we examine the
totality of the circumstances.” Id. at 606. “[N]ervous behavior is a relevant
factor, [but] nervousness alone is not dispositive and must be viewed in the
totality of the circumstances.” Id. at 606 n.7.

      The totality of the circumstances supports a Terry frisk because the
stop occurred at night in a high crime area, N.T., 2/19/15, at 7-8, Carter
appeared nervous, was breathing heavily, appeared to be looking around for
Officer Easter’s location, was making movements towards his right side, id.
at 6-8, 26, and had disobeyed a request to keep his hands visible, id. at 7.
See Commonwealth v. Wilson, 927 A.2d 279, 284-85 (Pa.Super. 2007)
(concluding that Terry frisk to ensure officer safety was justified where
defendant made suspicious gestures and movements in conjunction with
placing hands inside coat pocket as if defendant was reaching for
something).

       6We may affirm the PCRA court’s decision on any grounds if supported
by the record. See Rykard, 55 A.3d at 1183.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/17




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