J-S49015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 NAFIS ANTUAN FAISON                        :
                                            :
                     Appellant              :   No. 600 MDA 2018

                Appeal from the PCRA Order March 21, 2018
   In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0001495-2014


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

MEMORANDUM BY SHOGAN, J.:                         FILED DECEMBER 04, 2018

      Nafis Antuan Faison (“Appellant”) appeals pro se from the order

dismissing his petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. After careful review, we affirm.

      Appellant was detained and arrested on August 6, 2014, following police

surveillance of a Bridge Street apartment in Lycoming County, Pennsylvania.

Prior to Appellant’s arrest, the police sent a confidential informant (“CI”) into

the apartment to make a controlled buy of crack cocaine. N.T.(Suppression),

12/1/14, at 6.     At the time of the buy, the detective conducting the

surveillance believed that Appellant was inside the apartment, and the

affidavit of probable cause reflects that belief. Affidavit of Probable Cause,

8/6/14, at unnumbered 2. After the controlled buy, police observed Appellant

standing outside of the Bridge Street apartment, conversing with the


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* Former Justice specially assigned to the Superior Court.
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individual who sold the drugs to the CI, and handing currency to that

individual.    N.T.(Suppression), 12/1/14, at 9–10.       Following his arrest,

Appellant was strip searched and police recovered, inter alia, a plastic baggie

containing approximately seven grams of cocaine. Id. at 33–36.

       Prior to trial, Appellant filed a motion in limine seeking to preclude the

Commonwealth from presenting evidence of the activities that occurred in the

Bridge Street apartment.         During the hearing on that motion, Appellant’s

counsel informed the trial court of the possibility of exculpatory evidence in

the form of global positioning system (“GPS”) monitoring, which Appellant

alleged would prove he was not at the Bridge Street apartment when the

controlled buy occurred.1 N.T.(Hearing), 4/6/15, at 2.

       Although Appellant sought additional discovery regarding the GPS

information, he was informed, prior to the start of trial, that discovery was not

available. N.T. (Trial), 4/20/15, at 7. During an off-the-record conference, it

was determined that the manager of the county bail-release program,

Harry Rogers, whom Appellant had subpoenaed, was not able to testify to the

exculpatory information Appellant believed could be found on his GPS. 2 Id.

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1  Appellant was wearing an ankle GPS monitor as part of his bail on an
unrelated case.

2  Due to the off-the-record nature of the hearing, our review is limited. This
Court has reviewed a transcript of an earlier conference wherein the
Commonwealth stated that the GPS information was not specific enough to
(footnote continued)



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Prior to trial, the Commonwealth stipulated that it would not discuss the

August 6, 2014 controlled buy and, therefore, would not assert that Appellant

was present for the buy. Id. at 7. As stipulated, the Commonwealth did not

produce any evidence during Appellant’s trial relating to the August 6, 2014

controlled buy at the Bridge Street apartment.

       Following a jury trial, Appellant was convicted of one count each of the

following: possession with intent to deliver a controlled substance, possession

of a controlled substance, and possession of drug paraphernalia.3 The court

subsequently sentenced Appellant to twenty-two to forty-four months of

incarceration, followed by five years of probation, for the possession-with-

intent-to-deliver conviction. Order, 4/28/15, at 1. The court did not impose

any additional sentence for the other charges.   Id.

       Appellant filed a timely post-sentence motion, which the trial court

denied. Appellant filed a timely notice of appeal on August 14, 2015, and this


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prove when and where Appellant was located. N.T. (Hearing), 4/6/15, at 8.
The Commonwealth specifically stated, “[A]ny additional evidence would not
provide the specifics [Appellant’s counsel] is seeking to learn from the
information.” Id. at 9. We also reviewed the subpoena of Harry Rogers, LCP,
the individual Appellant subpoenaed to testify regarding GPS data and the
Motion of Lycoming County Prison to Quash the Subpoena Directed to Harry
Rogers. In the motion to quash, Lycoming County Prison averred that
Mr. Rogers was unable to produce the requested information. Following the
hearing, and upon defense counsel’s request, the trial court released
Harry Rogers from the subpoena. Order, 4/28/15.

3   35 P.S. §§ 780-113 (a)(30), (16), and (32), respectively.



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Court    affirmed    Appellant’s    judgment     of   sentence   on   May   9,   2016.

Commonwealth v. Faison, 151 A.3d 1140, 1442 MDA 2015 (Pa. Super. filed

May 9, 2016) (unpublished memorandum).

        Appellant filed a timely PCRA petition, his first, on July 22, 2016. The

PCRA court appointed counsel for Appellant on July 25, 2016, but due to the

expiration of appointed counsel’s contract with the court, new counsel was

appointed on December 29, 2016.                Appointed counsel filed a motion to

withdraw as counsel and a no-merit letter pursuant to Turner/Finley.4 The

PCRA court granted the motion, and Appellant proceeded pro se. Both the

PCRA court and Appellant complied with Pa.R.A.P. 1925.

        Appellant raises the following three issues for our review, verbatim:

        A.   TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
             INVESTIGATE AND ACQUIRE GPS INFORMATION WHICH
             WOULD HAVE PROVEN APPELLANT’S ARREST WAS
             UNLAWFUL.

        B.   TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE
             MOTION TO SUPPRESS AFFIDAVIT OF PROBABLE CAUSE
             WHERE AFFIDAVIT CONTAINED KNOWING FALSE MATERIAL
             INSTRUMENTAL TO THE ESTABLISHMENT OF PROBABLE
             CAUSE.

        C.   TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
             PRESENT GPS TRACKING EVIDENCE AT MOTION TO
             SUPPRESS HEARING TO CLEARLY SHOW THAT IT WAS
             IMPOSSIBLE FOR APPELLANT TO HAD BEEN PRESENT AT
             CONTROLLED BUY WHICH GAVE POLICE PROBABLE CAUSE
             TO DETAIN HIM.


____________________________________________


4 Commonwealth v. Turner, 544 A.2d 927 (Pa.                             1988),    and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)

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Appellant’s Brief at 3.

      When reviewing the propriety of an order denying PCRA relief, this Court

is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA

court’s findings will not be disturbed unless there is no support for them in the

certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super.

2014).

      All of Appellant’s issues relate to alleged ineffectiveness of counsel. It

is well settled that:

      [c]ounsel is presumed effective, and to rebut that presumption,
      the PCRA petitioner must demonstrate that counsel’s performance
      was deficient and that such deficiency prejudiced him.           In
      Pennsylvania, we have refined the Strickland [v. Washington,
      466 U.S. 668 (1984)] performance and prejudice test into a three-
      part inquiry. Thus, to prove counsel ineffective, the petitioner
      must show that: (1) his underlying claim is of arguable merit; (2)
      counsel had no reasonable basis for his action or inaction; and (3)
      the petitioner suffered actual prejudice as a result.          See
      [Commonwealth v.] Pierce[, 527 A.2d 973 (Pa. 1987)]. If a
      petitioner fails to prove any of these prongs, his claim fails.
      Generally, counsel’s assistance is deemed constitutionally
      effective if he chose a particular course of conduct that had some
      reasonable basis designed to effectuate his client’s interests.
      Where matters of strategy and tactics are concerned, 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. To demonstrate prejudice, the petitioner must
      show that there is a reasonable probability that, but for counsel’s
      unprofessional errors, the result of the proceedings would have
      been different. A reasonable probability is a probability that is
      sufficient to undermine confidence in the outcome of the
      proceeding.

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Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2016)

(some internal citations omitted).      Moreover, “[a] court is not required to

analyze the elements of an ineffectiveness claim in any particular order of

priority; instead, if a claim fails under any necessary element of the

ineffectiveness   test,   the   court   may   proceed to   that   element first.”

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014).

      In support of his first issue, Appellant asserts that his counsel was

ineffective for failing to investigate and retrieve GPS information that

Appellant alleges would have proven that his arrest was unlawful. Appellant’s

Brief at 12. Specifically, Appellant alleges that the GPS information, which he

avers counsel initially sought but then abandoned, would have provided

exculpatory material and “aided in suppressing the probable cause to arrest,

proving the police never had probable cause to detain Appellant, and most

importantly that the evidence seized should have been suppressed.” Id.

      Appellant’s claim fails because he cannot show his underlying issue is of

arguable merit or that he was prejudiced by the alleged ineffectiveness of his

counsel.   As the PCRA court correctly found, Appellant was charged with

crimes as a result of a search near the apartment where the controlled drug

buy occurred, not because he was present when the buy occurred. Trial Court

Opinion, 1/30/18, at 4. Even assuming the GPS information would show that

Appellant was not at the property when the controlled buy occurred, police

officers who were surveilling the apartment observed Appellant coming from


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that same apartment later that day, after the controlled buy.            Id. at 5.

Moreover, police also observed Appellant conversing with the individual who

sold the drugs to the CI and witnessed Appellant hand that individual currency.

N.T. (Suppression), 12/1/14, at 13. As the trial court properly noted, “[t]he

evidence collected from [Appellant] was admitted at trial, and [Appellant] was

found guilty, with no reference made as to the activities that occurred in the

apartment that gave rise to officers observing him depart the apartment.” Id.

Moreover, as discussed infra, Appellant is unable to ascertain that the GPS

evidence at issue would establish Appellant’s location during the controlled

buy. Consequently, Appellant is due no relief.

      In his second issue, Appellant argues that his trial counsel was

ineffective for failing to file a motion to suppress the affidavit of probable cause

specifically raising the GPS information. Appellant’s Brief at 15. As discussed

above, Appellant cannot show that the GPS evidence would prove he was not

in the apartment when the controlled buy occurred and, therefore, he cannot

attest he was prejudiced by the alleged failure of his counsel.

      The above notwithstanding, Appellant points to the following language

contained in the affidavit of probable cause as being deliberately and

materially false: “During the narcotics investigation it was later determined

that two B/M subjects were in the apartment during the controlled buy to

include [Appellant].    Through the investigation it was later learned that

[Appellant] did not make the delivery during the controlled buy but was


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present in the residence.” Appellant’s Brief at 16 (quoting Affidavit of Probable

Cause, 8/6/14, at unnumbered 2). Appellant claims that the GPS data would

have shown that he was not in the apartment when the controlled buy

occurred, and the warrant “contained material deliberately false statements.”

Id. at 17.      Appellant further argues that if his counsel filed a motion to

suppress the affidavit, it would have been granted, and the evidence seized

from Appellant would have been suppressed. Id. Appellant also avers that

the police officer’s alleged misstatement regarding Appellant’s location at the

time of the buy “is what enabled the officer to allegedly investigate Appellant.”

Id. Finally, Appellant claims that the suppression court denied the motion to

dismiss filed by Appellant because Appellant was at the earlier drug buy, and

the police, therefore, had reasonable suspicion to detain and arrest him. Id.

at 18.

         Appellant’s claim of ineffective assistance of counsel on these grounds

fails because Appellant cannot prove the underlying claim has merit or that he

was prejudiced by the alleged ineffective assistance. It is well established that

“while [this Court has] recognized the veracity of facts establishing probable

cause recited in an affidavit supporting a search warrant may be challenged

and examined, we have not suggested that every inaccuracy will justify an

exclusion of evidence as a result.” Commonwealth v. Baker, 24 A.3d 1006,

1018 (Pa. Super. 2011) (quoting Commonwealth v. Monte, 329 A.2d 836,

842–843 (Pa. 1974) (citations omitted). Indeed, “misstatements of fact will


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invalidate a search warrant and require suppression of the fruits of the search

only if the misstatements of fact are deliberate and material.”           Baker,

(emphasis in original).

       In the instant case, the PCRA court reviewed the affidavit of probable

cause and found that “there does not appear to be any material and intentional

false statements present[ed] to the issuing authority such that [the] warrant

would not issue.”       Trial Court Opinion, 1/30/18, at 6.    This statement is

supported by the record. In the instant case, the Bridge Street apartment

was under surveillance for several hours. Appellant was observed leaving the

Bridge Street apartment after the controlled buy, but the detective conducting

the surveillance did not witness Appellant entering the Bridge Street

apartment either before or after the controlled buy.          N.T. (Suppression),

12/1/14, at 14.

       Even if we found merit in Appellant’s averments, we would find his

argument waived because it is comprised almost exclusively of conclusory

statements regarding the deliberate and material nature of the statements

contained in the affidavit. Indeed, Appellant fails to engage in any meaningful

discussion of what constitutes a material and intentional false statement and

why the statement made by the affiant constitutes the same.5            “It is an



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5   Although this Court is willing to liberally construe a brief filed by a pro se
litigant, that status “generally confers no special benefit upon an appellant.”
Commonwealth v. Pew, 189 A.3d 486, 489 (Pa. Super. 2018).

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appellant’s duty to present arguments that are sufficiently developed for our

review.   The brief must support the claims with pertinent discussion, with

references to the record and citations to legal authority.” Commonwealth

v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010). Failure to present developed

arguments or cite to supporting authorities and/or the record results in waiver

of the claim.    Commonwealth v. Perez, 93 A.3d 89, 838 (Pa. 2014).

Further, to the extent Appellant argues that “[w]here the police officer affiant

makes an untrue or misleading statement in an affidavit of probable cause,

the warrant is invalid [and] all evidence obtained as a result of the subsequent

search is suppressed,” that argument misstates the law, as discussed above.

Appellant’s Brief at 17.    Appellant’s second claim of ineffective assistance

counsel provides no ground for relief.

      In his third and final issue, Appellant asserts that trial counsel was

ineffective for failing to present the GPS tracking data during a motion to

suppress “to clearly show that it was impossible for Appellant to had been

pres[]ent at controlled buy which gave police probable cause to detain him.”

Appellant’s Brief at 17. In support of this issue, Appellant argues that the

suppression court “believed that Appellant was at an earlier buy which

therefore, gave police reasonable suspicion to detain and arrest Appellant later

in the day.”    Appellant’s Brief at 18.   Appellant misstates the reasons the

suppression court found that he was lawfully detained by the police. In its




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opinion, the suppression court relied on the following factors in finding

reasonable suspicion:

      After the CI deal, [Detective] Diaz observed Peterson and
      [Appellant] converse outside of the apartment. This shows an
      association between Peterson and [Appellant].         Diaz later
      observed what he suspected was [Appellant] handing currency to
      Peterson.    The sale of cocaine to the CI, the presence of
      [Appellant] during the sale, the movement of various people in
      and out of the apartment, [Appellant’s] conversations with
      Peterson and [Appellant] handing money to Peterson provided the
      police with reasonable suspicion that [Appellant] was engaged in
      the sale of drugs.

Opinion and Order, 1/14/15, at 5.       Moreover, we note that during the

suppression hearing, the police officer who observed Appellant noted that the

Bridge Street apartment is located in a high crime area, and there were

specific complaints about the sale of narcotics at that location.         N.T.

(Suppression), 12/1/18, at 11–12. Reasonable suspicion is a less stringent

standard than that required for probable cause. Commonwealth v. Brown,

996 A.2d 473, 477 (Pa. 2010). “In order to demonstrate reasonable suspicion,

the police officer must be able to point to specific and articulable facts and

reasonable inferences drawn from those facts in light of the officer’s

experience.” Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999).

      Given the facts as set forth by the detective surveilling Appellant, even

if Appellant had been able to produce “viable GPS evidence” establishing that

Appellant was not in the Bridge Street apartment at the time of the controlled

buy, that fact does not exonerate him nor does it prove that the police did not

have reasonable suspicion to detain him. Indeed, as the PCRA court stated,

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“[The suppression court] determined that the officers did have reasonable

suspicion to detain [Appellant] in the Family Dollar parking lot outside any

authority granted by the search warrant.” Trial Court Opinion, 1/30/18, at 6.

The suppression court’s determination was affirmed by this Court on direct

appeal. Faison, 1442 MDA 2015 (unpublished memorandum). Appellant’s

counsel, therefore, was not ineffective for failing to raise a meritless claim.

      For all the foregoing reasons, order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/04/2018




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