J-S47014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

TIMOTHY DONNELL ANDERSON,

                         Appellant                  No. 1930 MDA 2015


               Appeal from the PCRA Order October 21, 2015
             In the Court of Common Pleas of Lancaster County
 Criminal Division at No(s): CP-36-CR-0000378-2010, CP-36-CR-0000419-
                       2010, CP-36-CR-0005069-2009


BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 26, 2016

      Appellant, Timothy Donnell Anderson, appeals from the order denying

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

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

      The PCRA court summarized the relevant factual and procedural

history of the case, as follows:

            On November 23, 2009, the Attorney General filed an
      information docketed to No. 5069–2009 charging [Appellant],
      Timothy D. Anderson, with two counts of unlawful contact with a
      minor and one count of criminal use of communication facility.
      These offenses arose from [Appellant’s] contact with an agent of
      the Attorney General’s Office, posing as a 14 year old girl, via
      computer. In August and September, 2009, [Appellant] was in
      contact with the person he believed to be a 14 year old girl for
      the purpose of engaging in sexual activity with her. [Appellant]
      was arrested by law enforcement authorities when he arrived at
      the pre-arranged meeting place. At the time of [Appellant’s]
      arrest, a cell phone was seized from him.
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           On February 19, 2010, the District Attorney of Lancaster
     County filed an information docketed to No. 419-2010 charging
     [Appellant] with aggravated indecent assault of a person less
     than 16, sexual abuse of children, unlawful contact with a minor
     and corruption of minors. These charges were the result of
     [Appellant’s] actions in contacting a 15 year old girl between
     November, 2008, and July 13, 2009, for the purpose of engaging
     in sexual activity. Eventually, [Appellant] met the victim at a
     swimming pool on July 13, 2009, at which time he digitally
     penetrated her vagina and photographed her vagina with his cell
     phone.

           On April 9, 2010, the Attorney General filed a second
     information docketed to No. 378-2010 charging [Appellant] with
     five counts of unlawful contact with a minor, one count of
     involuntary deviate sexual intercourse, one count of sexual
     abuse of children, two counts of statutory sexual assault, one
     count of aggravated indecent assault and one count of criminal
     use of communication facility. The offenses charged on this
     docket occurred during July and August, 2009. [Appellant],
     using a computer, again contacted a 15 year old female under
     the guise of befriending her. He engaged in digital penetration,
     oral and vaginal intercourse and photographed her genitals with
     his cell phone.

          [Appellant’s] suppression motion was denied on July 1,
     2011, and he proceeded with a jury trial on docket No. 419-
     2010A. On July 20, 2011, he was found guilty of all offenses.

           On September 12, 2011, [Appellant] was again found
     guilty after a jury trial of the offenses charged on docket No.
     5069-2009.

           On docket No. 378-2010, [Appellant] waived his right to a
     jury trial and was tried by the [c]ourt sitting without a jury. On
     October 28, 2011, [Appellant] was found not guilty of one count
     [each] of statutory sexual assault and aggravated indecent
     assault, but was found guilty of the remaining nine offenses.

          On March 1, 2012, after a pre-sentence investigation,
     [Appellant] was sentenced to an aggregate term of not less than
     30 nor more than 60 years incarceration on all dockets. The


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      [c]ourt also found that [Appellant] was a sexually violent
      predator.

            On March 6, 2012, [Appellant] filed a motion to modify
      sentence which was denied on March 20, 2012. On April 18,
      2012, [Appellant] filed a timely notice of appeal to the Superior
      Court.   On May 7, 2013, the Superior Court affirmed the
      judgment of sentence. Commonwealth v. Anderson, 81 A.3d
      991[, 767 MDA 2012 (Pa. Super. filed May 7, 2013)
      (unpublished memorandum)].

            On June 6, 2013, [Appellant] filed a petition for allowance
      of appeal in the Supreme Court of Pennsylvania. On [November
      25,] 2013, the Supreme Court denied [Appellant’s] petition,
      Commonwealth v. Anderson, 622 Pa. 754, 80 A.3d 774 (table),
      [404 MAL 2013 (Pa. filed November 25, 2013)], and he did not
      seek further review.

            On April 29, 2014, [Appellant] filed a pro se motion    for
      post conviction collateral relief. Counsel was appointed       to
      represent him, and on October 17, 2014, counsel filed         an
      amended motion on his behalf.      On January 28, 2015,       an
      evidentiary hearing was held.

PCRA Court Opinion, 10/21/15, at 1–4 (footnotes omitted).

      The PCRA court denied Appellant’s PCRA petition on October 21, 2015.

Appellant filed a timely notice of appeal to this Court. Both Appellant and

the PCRA court complied with Pa.R.A.P. 1925.

      Appellant raises the following single issue on appeal:

      A.   Whether the lower court erred in denying [Appellant’s]
      amended PCRA when counsel failed to properly litigate a
      meritorious motion to suppress evidence?

Appellant’s Brief at 4 (full capitalization omitted).

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

Court is limited to determining whether the evidence of record supports the


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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).

      To be entitled to PCRA relief, an appellant must establish, by a

preponderance of the evidence, that 1) his conviction or sentence resulted

from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2);

2) his claims have         not been previously litigated or      waived,     id. at

§ 9543(a)(3); and 3) the failure to litigate the issue prior to or during trial or

on direct appeal could not have been the result of any rational, strategic, or

tactical decision by counsel. Id. at § 9543(a)(4).

      While inartfully and inaccurately worded, Appellant is alleging trial

counsel’s    ineffective   assistance   in   the   manner   counsel   litigated   his

suppression motion. To plead and prove ineffective assistance of counsel a

petitioner must establish: (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).                 A claim of

ineffectiveness will be denied if the petitioner’s evidence fails to meet any

one of these prongs.        Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.

2010).      Counsel is presumed to have rendered effective assistance of


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counsel. Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015). We

have explained that trial counsel cannot be deemed ineffective for failing to

pursue a meritless claim.     Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc).        “We need not analyze the prongs of an

ineffectiveness claim in any particular order. Rather, we may discuss first

any prong that an appellant cannot satisfy under the prevailing law and the

applicable facts and circumstances of the case.”              Commonwealth v.

Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citing Commonwealth v.

Albrecht, 720 A.2d 693, 701 (Pa. 1998)).

        The sole focus at the evidentiary hearing, the only issue identified in

Appellant’s Pa.R.A.P. 1925(b) statement, and the issue raised on appeal is

the allegation that trial counsel was ineffective in his argument concerning

the suppression motion he filed. Appellant asserts that the Commonwealth

violated his constitutional rights “when it examined without a warrant the

contents of a cell phone which was seized as a result of a warrantless arrest.

The contents of a cell phone cannot be lawfully searched based on a valid

warrantless arrest.” Appellant’s Brief at 11, 16. In support, Appellant cites

Riley    v.   California,   ___   U.S.   ___,   134   S.Ct.   2473   (2014),   and

Commonwealth v. Stem, 96 A.3d 407 (Pa. Super. 2014). Appellant does

not contend the cellular telephone itself was unlawfully seized; rather, he

claims, pursuant to Riley, that the contents of the telephone could not be

searched without a warrant.


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     In rejecting Appellant’s claim, we rely on the PCRA court’s cogent and

thorough explanation and disposition. The PCRA court stated as follows:

           The sole issue presented is that trial counsel was
     ineffective for failing to specifically challenge the search of
     [Appellant’s] cell phone which revealed certain photographs of
     the victims and others that were used at trial. (N.T. January 28,
     2015, pp. 9, 12–13). In support of his position, [Appellant] cites
     Riley v. California, 573 U.S. 134 S.Ct. 2473 (2014), and
     Commonwealth v. Stem, 96 A.3d 407 (Pa. Super. 2014).

            In Riley v. California, decided June 25, 2014, the Supreme
     Court of the United States held that police must obtain a warrant
     to search the contents of a cell phone which is seized incident to
     arrest. Riley, 134 S.Ct. at 2496. In Stem, decided July 11,
     2014, the Superior Court of Pennsylvania was presented with the
     same issue that was decided by the Supreme Court in Riley—
     whether police may search the contents of a cell phone seized
     incident to arrest without obtaining a warrant. Stem, 96 A.3d at
     409. Based upon the Supreme Court’s decision in Riley, the
     Superior Court upheld the trial court’s order suppressing
     evidence obtained from a warrantless search of the defendant’s
     cell phone which was seized incident to arrest. Stem, 96 A.3d at
     414.

            [Appellant] asserts that trial counsel was ineffective for
     failing to argue at the suppression hearing that the search of the
     lawfully seized cell phone was illegal based on Riley and Stem.
     However, both these cases were decided after [Appellant’s]
     appellate rights were exhausted on direct review.             The
     suppression hearing was held on July 1, 2011. . . .

           Moreover, the record shows that the Commonwealth did
     obtain a warrant prior to searching the cell phone. Testimony at
     the suppression hearing established that [Appellant’s] cell phone
     was seized pursuant to a search incident to his arrest on
     September 11, 2009. (N.T. July 1, 2011, pp. 11, 21–22, 34–
     35). On the same date, law enforcement officers obtained a
     warrant to search his home and person. (N.T. January 28, 2015,
     at 5–6; Def. Ex. 1). The warrant authorized the police to seize
     and examine the contents of all computers and electronic
     devices including cell phones. (Id., Def. Ex. 1). The contents of


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     the cell phone were not examined until after the warrant was
     obtained. (N.T. July 1, 2011, pp. 48, 50–51).

            While [Appellant] notes that the cell phone is not listed on
     the inventory for the search warrant, (Def. Ex. 1), this omission
     does not entitle him to relief. The cell phone was already in the
     possession of the police when the search of [Appellant’s]
     residence took place. Under the circumstances, the failure to list
     it on the inventory of items seized would be at most a technical
     oversight in violation of Pa.R.Cr[im].P. 20919 which would not
     affect any of [Appellant’s] substantive rights. “Nothing in the
     history of the Rules themselves, or related case law, mandates
     that every violation of the Rules of Criminal Procedure—however
     technical—requires exclusion of evidence seized in the process.
     Rather . . . it is only where the violation implicates fundamental
     constitutional concerns that exclusion may be appropriate.”
     Commonwealth v. Ruey, 854 A.2d 560, 568 [Pa. Super. 2004]
     (quoting Commonwealth v. Edmunds, 526 Pa. 374, 407, n.14,
     586 A.2d 887, 903 n.14 (1991)). There is no question that
     [Appellant] knew the cell phone had been seized[,] as he
     challenged the admissibility of the evidence obtained from it.
     (N.T. July 1, 2011, pp. 7–8, 54–55; N.T. January 28, 2015, p.8).
           19
               Rule 209(C) requires that an inventory of items
           seized shall be made by the law enforcement officer
           serving a search warrant. Pa.R.Cr[im].P. 209(C). In
           this case, the cell phone was not seized by the officer
           serving the search warrant, but by the officers who
           took [Appellant] into custody prior to the search of
           his residence.      Since [Appellant] was searched
           incident to arrest, it may not be necessary to list the
           cellphone on the inventory for the search warrant.
           The Court need not resolve this question since the
           search of the contents of the cell phone was
           authorized by the search warrant.

           Based upon the record, [Appellant] has failed to establish
     that his claim has arguable merit. Therefore, the [c]ourt need
     not consider whether he has satisfied the second and third
     prongs of a claim of ineffective assistance of counsel.
     Commonwealth v. Chmiel, 585 Pa. 547, 614, 889 A.2d 501, 541
     (2005) (citing Commonwealth v. Williams, 537 Pa. 1, 29, 640
     A.2d 1251, 1265 (1994)).


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PCRA Court Opinion, 10/21/15, at 7–10 (some footnotes omitted). We rely

on the PCRA court’s reasoning and adopt it as our own.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2016




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