J-S24005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

H. ALLEN LITT

                            Appellant                  No. 1059 EDA 2014


                   Appeal from the PCRA Order March 7, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002280-2008


BEFORE: GANTMAN, P.J., ALLEN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED MAY 08, 2015

        Appellant, H. Allen Litt, appeals from the order entered in the

Philadelphia County Court of Common Pleas, granting in part and denying in

part his first petition brought pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

           [Appellant] was a licensed attorney who operated a solo
           practice specializing in personal injury claims in
           Philadelphia. To obtain business, [Appellant] utilized the
           services of several “runners” to recruit clients.       With
           [Appellant’s] knowledge and encouragement, the runners
           often manufactured cases for the prospective clients and
           coached the prospective clients to lie about their accidents
           and injuries.

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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       Three of the runners used by [Appellant] were Nathaniel
       Shaw and James Guinn, who specialized in slip-and-fall
       cases, and Joshua Pitts, who specialized in automobile
       accidents. For the slip-and-fall cases, [Appellant] used a
       procedure whereby the runners would find a plausible
       accident location, recruit a client to claim that he or she
       had been injured at that location, and then provide the
       recruit with a story about how the accident happened and
       the injuries that he or she sustained. [Appellant] taught
       the runners to select accident locations with visible
       defects, such as broken pavement or handrails, to avoid
       large department stores and locations with surveillance
       cameras, and to claim that the accidents occurred during
       daylight hours. For the automobile accidents, Mr. Pitts
       used a police scanner to listen for reports of automobile
       accidents and then would go to the accident site and
       approach the individuals involved. Mr. Pitts would suggest
       to the individuals involved in the accident that they should
       exaggerate the extent of the accident, claim to be injured,
       and then hire [Appellant] to pursue claims with their
       insurance companies.

       [Appellant] encouraged the runners to take prospective
       clients to an emergency room to make specific complaints
       about the location of fake accidents and the nature of
       fabricated injuries. The runners would then personally
       accompany the client to [Appellant’s] office for an
       interview. There, the prospective client was to recite the
       story of the accident and injuries as provided to them by
       the runners. In some cases, the runners would relay the
       false story of the accident themselves and [Appellant]
       would merely ask the client a few basic questions.
       [Appellant] would then recommend a doctor to the client
       to visit for treatment, and instruct the client that the more
       frequently he or she went to the doctor, the more money
       he or she could recover.

       At some point, [Appellant] would speak to the runner
       privately and write out a check to the runner for his
       services.   [Appellant] instructed the runners that the
       clients were not to know that he was aware that the claims
       were fake. If a client was required to give a sworn
       statement, [Appellant] would represent them at that
       proceeding where the client would again recite the lies

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          concocted by the runners about the accidents and injuries.
          If a client’s claim was successful, the insurance company
          would issue a settlement check to [Appellant]. [Appellant]
          would then issue checks to pay for the client’s medical
          bills, other costs associated with the claim, and his own
          services. The remaining funds would be paid by check to
          the client.

(Trial Court Opinion, filed December 21, 2009, at 2-4) (internal citations to

the record omitted).

       Following trial, a jury convicted Appellant of six (6) counts each of

theft by deception and insurance fraud, five (5) counts of attempted theft by

deception, and one (1) count of dealing in proceeds of unlawful activities.

On March 11, 2009, the court sentenced Appellant to an aggregate term of

five (5) to ten (10) years’ imprisonment. This Court affirmed the judgment

of sentence on November 17, 2010. See Commonwealth v. Litt, 22 A.3d

1072 (Pa.Super. 2010) (unpublished memorandum). Appellant did not seek

further review with our Supreme Court.

       On April 13, 2011, Appellant timely filed a pro se PCRA petition.2 In it,

Appellant raised multiple claims of ineffective assistance of trial and direct

appeal counsel.       Appellant also asserted that the applicable statutes of

limitations barred several of his convictions.     The court appointed PCRA

____________________________________________


2
  Pursuant to the prisoner mailbox rule, a document is considered filed on
the date the appellant delivered it to prison authorities for mailing.
Commonwealth v. Castro, 766 A.2d 1283 (Pa.Super. 2001). Here, the
postmark attached to Appellant’s pro se PCRA petition is dated April 13,
2011.



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counsel, who filed an amended PCRA petition on October 19, 2012.            On

October 31, 2013, the court issued notice of its intent to dismiss the petition

without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant filed a response

to the Rule 907 notice on January 17, 2014.         On February 6, 2014, the

Commonwealth filed an answer indicating it did not oppose relief regarding

the convictions barred by the statutes of limitations. On March 7, 2014, the

court granted PCRA relief in part, vacating Appellant’s sentences for six (6)

time-barred convictions. The court re-sentenced Appellant on the remaining

convictions to an aggregate term of five (5) to ten (10) years’ imprisonment.

The court denied PCRA relief in all other respects.3

       Appellant timely filed a notice of appeal on April 7, 2014. On April 8,

2014, the court ordered Appellant to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b).        Appellant timely

filed a Rule 1925(b) statement on April 29, 2014.

       Appellant raises the following issues for our review:

          WHETHER THE TRIAL/PCRA COURT ERRED IN FAILING TO
          GRANT AN EVIDENTIARY HEARING TO DETERMINE
          WHETHER A VIOLATION OF APPELLANT’S 6TH AMENDMENT
          RIGHT TO COUNSEL UNDER THE U.S. CONSTITUTION,
          AND ARTICLE 1, § 9 OF THE PENNSYLVANIA
          CONSTITUTION OCCURRED:
____________________________________________


3
  In its March 7, 2014 order, the PCRA court inadvertently failed to dispose
of Appellant’s ineffective assistance of counsel issues. By agreement of the
parties, the court entered an order on June 27, 2014, denying all other
claims raised in Appellant’s PCRA petitions “nunc pro tunc as of 3/7/14.”
(Criminal Docket Entries, printed 7/14/14, at 35).



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          WHEN TRIAL COUNSEL FAILED TO CHALLENGE THE
          VALIDITY OF THE SEARCH WARRANTS ISSUED
          WHEN: THE WARRANTS LACKED PROBABLE CAUSE;
          THE WARRANTS CONTAINED ALLEGATIONS THAT
          WERE TOO REMOTE OR STALE TO SUBSTANTIATE
          CURRENT    CRIMINAL    ACTIVITY;  WHERE   THE
          ALLEGATIONS OF ILLEGAL ACTIVITIES WERE
          BEYOND THE STATUTE OF LIMITATIONS; AND
          WHERE    WARRANTS     FAILED   TO  ARTICULATE
          APPELLANT’S ALLEGED CRIMINAL CONNECTION TO
          THE ILLEGAL ACTIVITY?

          WHEN APPELLATE COUNSEL FAILED TO RAISE IAC
          CLAIMS AGAINST TRIAL COUNSEL AT THE
          APPELLATE LEVEL WHEN TRIAL COUNSEL FAILED TO
          CHALLENGE THE VALIDITY OF OR DEFECTS IN
          SEARCH   WARRANTS    ISSUED    THAT   LACKED
          PROBABLE CAUSE; CONTAINED ALLEGATIONS THAT
          WERE TOO REMOTE OR STALE TO SUBSTANTIATE
          CURRENT    CRIMINAL   ACTIVITY;    CONTAINED
          ALLEGATIONS OF ILLEGAL ACTIVITIES BEYOND THE
          STATUTE OF LIMITATIONS; AND WHERE WARRANTS
          FAILED TO ARTICULATE APPELLANT’S ALLEGED
          CRIMINAL CONNECTION TO THE ILLEGAL ACTIVITY?

          WHEN TRIAL COUNSEL FAILED TO CHALLENGE THE
          PREJUDICIAL   EFFECT   OR   IMPACT  OF   THE
          ADMISSION OF STALE OR REMOTE EVIDENCE PRIOR
          TO THE COMMENCEMENT OF TRIAL BY LITIGATING A
          MOTION TO QUASH, A PRETRIAL MOTION IN
          LIMINE, OR A MOTION TO SUPPRESS?

          WHEN APPELLATE COUNSEL FAILED TO CHALLENGE
          TRIAL COUNSEL’S INACTION REGARDING THE USE
          OF EVIDENCE ILLEGALLY CONFISCATED FROM
          APPELLANT’S OFFICE, EVIDENCE ADMITTED FOR
          CHARGES BEYOND THE STATUTE OF LIMITATIONS
          PERIOD, AND THE ADMISSION OF EVIDENCE THAT
          WAS STALE OR TOO REMOTE TO BE RELEVANT OR
          MATERIAL?

       WHETHER   THE  TRIAL/PCRA  COURT  ERRED  IN
       CONCLUDING THAT STALE, REMOTE AND UNRELATED

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         EVIDENCE  WAS   ADMISSIBLE  TO   ESTABLISH “A
         CONTINUING COURSE OF CONDUCT” TO SUBSTANTIATE
         THE CHARGE OF DEALING IN PROCEEDS OF UNLAWFUL
         ACTIVITY?

         WHETHER THE TRIAL/PCRA COURT ERRED IN FAILING TO
         FIND THAT A NEW TRIAL WAS WARRANTED WHERE THE
         ADMISSION OF EVIDENCE BEYOND THE STATUTE OF
         LIMITATION    PERIOD,    ILLEGALLY   CONFISCATED
         EVIDENCE, AND STALE OR REMOTE EVIDENCE PRESENTED
         DURING THE TRIAL RESULTED IN AN UNFAIR TRIAL
         WHERE SAID EVIDENCE CONSTITUTED AN ONGOING
         TAINT PRESENTED TO THE JURORS DURING THE TRIAL,
         THAT ACTED LIKE A SNOW BALL ROLLING DOWNHILL AND
         RESULTED IN A CONTINUUM OF PREJUDICE WHICH
         DEMANDS A NEW TRIAL?

(Appellant’s Brief at 5-6).

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether    the   evidence    of   record     supports    the     court’s

determination    and    whether   its    decision    is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).            We give no such deference,

however, to the court’s legal conclusions.      Commonwealth v. Ford, 44

A.3d 1190 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA

hearing as a matter of right; the PCRA court can decline to hold a hearing if

there is no genuine issue concerning any material fact, the petitioner is not

entitled to PCRA relief, and no purpose would be served by any further

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proceedings. Commonwealth v. Wah, 42 A.3d 335 (Pa.Super. 2012).

       In his first and second issues, Appellant contends Detective Donald

Murtha obtained two warrants to search Appellant’s law office during the

Commonwealth’s initial investigation into the fraudulent insurance claims.

Appellant asserts the affidavits of probable cause supporting the search

warrants contained the following defects:

          In his affidavits of probable cause Detective Murtha failed
          to identify the dates on which suspected offenses were
          believed to have occurred, referred to incidents that
          happened more than five years before the warrants were
          sought, failed to specify the dates and times within which
          [the detective] obtained the information which led to his
          request for the warrants, failed to provide any current,
          recent or active information, and failed to provide evidence
          of any alleged criminal activity of Appellant’s involvement
          in any unlawful activity.

(Appellant’s Brief at 16-17). In light of the purportedly defective affidavits,

Appellant argues trial counsel should have moved to quash the indictments

against Appellant and suppress all evidence obtained as a result of the

searches.4     Appellant further argues that appellate counsel should have

raised similar challenges on direct appeal.      Appellant complains trial and

appellate counsel did not have a reasonable basis for failing to challenge the

____________________________________________


4
  In a related claim, Appellant avers the trial court improperly admitted the
evidence at issue to establish a continuing course of conduct related to the
charge of dealing in proceeds of unlawful activities. Appellant insists,
however, dealing in proceeds of unlawful activities is not a continuing
offense, and trial counsel should have challenged the admissibility of the
evidence on this basis.



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defective search warrants or the admissibility of the evidence obtained as a

result of the searches, and counsels’ failures caused Appellant to suffer

prejudice. Appellant concludes trial and appellate counsel were ineffective.

We disagree.

      The   law   presumes    counsel   has   rendered    effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).                When

asserting a claim of ineffective assistance of counsel, the petitioner is

required to demonstrate that: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and,

(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).                   The

failure to satisfy any prong of the test for ineffectiveness will cause the claim

to fail. Williams, supra.

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

         Once this threshold is met we apply the ‘reasonable basis’
         test to determine whether counsel’s chosen course was
         designed to effectuate [her] client’s interests.    If we
         conclude that the particular course chosen by counsel had

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         some reasonable basis, our inquiry ceases and counsel’s
         assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

         Prejudice is established when [a defendant] demonstrates
         that counsel’s chosen course of action had an adverse
         effect on the outcome of the proceedings. The defendant
         must show that there is a reasonable probability that, but
         for counsel’s unprofessional errors, the result of the
         proceeding would have been different.             A reasonable
         probability is a probability sufficient to undermine
         confidence in the outcome. In [Kimball, supra], we held
         that a “criminal defendant alleging prejudice must show
         that counsel’s errors were so serious as to deprive the
         defendant of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).

       “In this jurisdiction, in determining whether probable cause for

issuance of a warrant is present, the ‘totality of the circumstances’ test set

forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527

(1983), was adopted in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d

921 (1985).”      Commonwealth v. Murphy, 916 A.2d 679, 681-82

(Pa.Super. 2007), appeal denied, 593 Pa. 739, 929 A.2d 1161 (2007).

“Under such a standard, the task of the issuing authority is to make a

practical,   common    sense   assessment    [of]   whether,   given      all   the

circumstances set forth in the affidavit, there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” Id. at

682.   Further, a magistrate’s finding of probable cause must be based on

facts described within the four corners of the affidavit. Commonwealth v.

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Smith, 784 A.2d 182 (Pa.Super. 2001).

     “Under our law, the focus is on the information provided to the

issuing authority and its response to that information.” Commonwealth

v. Huntington, 924 A.2d 1252, 1256 (Pa.Super. 2007), appeal denied, 593

Pa. 746, 931 A.2d 656 (2007) (emphasis in original).

         The role of the reviewing court and the appellate court is
         to ascertain whether the issuing magistrate appropriately
         determined that probable cause existed for the issuance of
         the warrant. Probable cause is based on a finding of
         probability and does not require a prima facie showing of
         criminal activity. Both the reviewing court and this Court
         must accord deference to a magistrate’s finding of
         probable cause.

Id. (internal citations and quotation marks omitted).

     “An affidavit of probable cause must include facts from which a

magistrate can determine the time frame within which the supporting

information was acquired.”    Commonwealth v. Sharp, 683 A.2d 1219,

1223 (Pa.Super. 1996).       “A search warrant is defective if the issuing

authority is not supplied with a time frame upon which to ascertain when the

affiant obtained the information from the informant and when the informant

himself witnessed the criminal acts detailed in the affidavit of probable

cause.” Id. “[S]tale information cannot provide probable cause in support

of a warrant.” Commonwealth v. Hoppert, 39 A.3d 358, 363 (Pa.Super.

2012),   appeal   denied,   618   Pa.    684,    57   A.3d   68   (2012)   (quoting

Commonwealth v. Janda, 14 A.3d 147, 158 (Pa.Super. 2011)).                      “A

showing that criminal activity is likely to have continued up to the time of

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the issuance of a warrant renders otherwise stale information viable.”

Commonwealth v. Jones, 542 Pa. 418, 427, 668 A.2d 114, 118 (1995).

      Additionally, “Admission of evidence is within the sound discretion of

the trial court and will be reversed only upon a showing that the trial court

clearly abused its discretion.”     Commonwealth v. Drumheller, 570 Pa.

117, 135, 808 A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123 S.Ct.

2284, 156 L.Ed.2d 137 (2003) (quoting Commonwealth v. Stallworth,

566 Pa. 349, 363, 781 A.2d 110, 117 (2001)).

            Admissibility depends on relevance and probative value.
            Evidence is relevant if it logically tends to establish a
            material fact in the case, tends to make a fact at issue
            more or less probable or supports a reasonable inference
            or presumption regarding a material fact.

Drumheller, supra at 135, 808 A.2d at 904 (quoting Stallworth, supra at

363, 781 A.2d at 117-18).

      “Evidence of prior crimes or bad acts may not be presented at trial to

establish      the    defendant’s    criminal   character   or   proclivities.”

Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.Super. 2008),

appeal denied, 600 Pa. 739, 964 A.2d 1 (2009).

            The same evidence may be admissible in other
            circumstances, however. To be admissible, the evidence
            must have some purpose other than simply prejudicing the
            defendant.     Some examples of legitimate evidentiary
            purposes for the introduction of evidence of other crimes
            or criminal behavior include: motive, intent, absence of
            mistake or accident, a common scheme, to establish the
            identity of the person charged with the commission of the
            other crime, to impeach the credibility of a defendant’s
            testimony, situations where a defendant used his prior

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        criminal history to threaten or intimidate the victim, or
        situations where the distinct crimes were part of a chain or
        sequence [of] events which formed the history of the case
        and were part of its natural development.

Commonwealth v. Santiago, 822 A.2d 716, 728 (Pa.Super. 2003), cert.

denied, 542 U.S. 942, 124 S.Ct. 2916, 159 L.Ed.2d 820 (2004) (internal

citations and quotation marks omitted).

     Instantly, Detective Murtha applied for the first warrant to search

Appellant’s office on December 1, 2005.      The affidavit of probable cause

included the following averments:

        Your affiant is investigating a series of fraudulent
        insurance claims in which Nathaniel Shaw recruits
        individuals to participate in fraudulent insurance claims.
        All of the claimants have had a slip and fall type accident
        on a commercial property. They have then treated at an
        emergency room, and followed up with physical therapy.
        Shaw then referred them to [Appellant], who filed claims
        with the insurance carrier on their behalf.

        Brenda Alexander, Kenneth Harrison, Lucille Hickman,
        Beverly Johnson, and John Whitmore either live or have
        lived in properties owned by Mr. Shaw. Carolyn Cottman
        lived with Shaw, and was involved in a relationship with
        him for several years. Carolyn Cottman, Shirley Cottman,
        and Denise Cottman are sisters.

        Kenneth Harrison made a statement to…a representative
        of Chubb Insurance, in which he identified Brenda
        Alexander as his girlfriend.         Harrison stated that
        Alexander’s insurance claim was fraudulent, and set up by
        Nathaniel Shaw, whom he identified as his landlord.
        Harrison added that Shaw attempted to recruit him into a
        fraudulent insurance claim by telling him that all he had to
        do was answer a few questions, and he would get paid.

        Harrison stated that Shaw provided Alexander with
        pictures and told her what she was supposed to do, and

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       what to say to the lawyer. Shaw later drove Harrison and
       Alexander to [Appellant’s] office and stayed for the
       interview.

       Harrison stated that Lucille Hickman and Beverly Johnson,
       also former tenants of Shaw’s, had participated with Shaw
       in fraudulent insurance claims. According to Harrison,
       Hickman and Johnson both told him that Shaw set them up
       by providing them with pictures, and telling them what to
       say.    Shaw also set Hickman and Johnson up with
       [Appellant]. According to Harrison, Shaw also told him
       that he had set up both Hickman and Johnson with their
       fraudulent insurance claim.

       Your affiant interviewed Brenda Alexander.     Alexander
       admitted that her insurance claim against Chubb was
       fraudulent.   Alexander stated Shaw took her to see
       [Appellant], and that Shaw provided her with photographs
       and told her what to say.

       [Appellant] eventually withdrew his claim on behalf of
       Brenda Alexander with Chubb. [Appellant] settled the
       claim on behalf of Beverly Johnson with Nationwide and
       the City of Philadelphia for $5,750.00. [Appellant] settled
       the claim on behalf of Lucille Hickman with Travelers for
       $5,000.00.

       Your affiant interviewed Carolyn Cottman.         Carolyn
       Cottman admits that her insurance claim against Chubb
       Insurance is fraudulent. Carolyn Cottman stated that she
       was involved in a relationship with Nathaniel Shaw.
       According to Carolyn Cottman, Shaw took her to see
       [Appellant]. Shaw also provided her with photographs of
       the insured location and told her what to say. [Appellant]
       settled the claim on behalf of Carolyn Cottman for
       $1,500.00.

       Your affiant spoke to Shirley Cottman. Shirley Cottman
       admits to exaggerating her injuries in her claim against
       The Hartford. Shirley Cottman stated that Shaw took her
       to see [Appellant], and that Shaw took photographs of the
       hole in the parking lot where she alleges she actually
       twisted her ankle. [Appellant] settled this claim on behalf
       [of] Shirley Cottman with The Hartford for $1,000.00.

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        Your affiant reviewed claim file # P-6585 from Magna
        Carta Companies for a slip and fall claim involving Denise
        Cottman on the insured property of the Hollywood Video
        Store at 4333 N. Broad Street on 05-21-01. [Appellant]
        represented Denise Cottman in this claim. According to
        the file, Denise Cottman fell and injured herself due to a
        depressed manhole cover in the sidewalk. The claim file
        includes four Polaroid photos of the manhole cover.
        Shirley Cottman is listed as a witness to the fall. Denise
        Cottman treated at Temple Hospital Emergency Room and
        then with Dr. Richard S. Glick. [Appellant] settled this
        claim on behalf of Denise Cottman for $10,000.00.

        Your affiant interviewed John Whitmore. Mr. Whitmore
        admitted that his insurance claim against Church Mutual is
        fraudulent. Whitmore stated that Shaw took him to see
        [Appellant] and sat with him while [Appellant] interviewed
        him. According to Whitmore, Shaw was aware that he did
        not injure himself at the insured property. Whitmore
        stated Shaw encouraged him to exaggerate his injuries in
        order to get a large sum of money in settlement.
        [Appellant] settled this claim on behalf of Mr. Whitmore for
        $12,000.00.

        Your affiant learned that Nathaniel Shaw…had a
        commercial liability claim from an incident at the First
        Union Bank, 2627 Germantown Avenue on or about 08-26-
        1999. Your affiant contacted Jody Jaffry of the Special
        Investigation Unit of GAB Robins North America. Ms. Jaffry
        confirmed that her company insured First Union, and that
        [Appellant] had filed a claim on Nathaniel Shaw’s behalf.
        [Appellant] settled this claim on behalf of Nathaniel Shaw
        for $5,500.00.

                                 *     *      *

(See Amended PCRA Petition, filed 10/19/12, at Exhibit A; Appellant’s Brief

at Exhibit A.) Detective Murtha subsequently received a warrant to search

for records related to the aforementioned insurance claims.

     Detective Murtha applied for the second warrant to search Appellant’s

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office on February 6, 2006.   The affidavit of probable cause included the

following averments:

        On 12-05-2005, your affiant and other members of the
        [Philadelphia District Attorney’s Insurance Fraud Unit]
        served Search and Seizure Warrant # 118246 at
        [Appellant’s law office]. As a result of this search and
        seizure warrant numerous files, documents, and
        accounting cards were seized.

        During the search inside [Appellant’s] office, Melissa
        Burns, an employee of [Appellant’s], directed your affiant
        to [Appellant’s] accounting cards. These cards were stored
        in [Appellant’s] office, in an area directly behind
        [Appellant’s] desk and also in a cabinet in front of
        [Appellant’s] desk. Your affiant reviewed the accounting
        cards, and seized those cards that were [relevant] to
        Nathaniel Shaw, as outlined in Search and Seizure Warrant
        # 118246.

        Your affiant reviewed the accounting cards recovered from
        [Appellant’s] office during the execution of the Search and
        Seizure warrant on 12-05-2005. These cards reveal over
        130 payments from [Appellant] to Nathaniel Shaw from
        1985 to the present. These payments, listed as fees for
        photographs or investigation, range from $100.00 to
        $1,000.00 per case, and total more than $47,000.00. The
        total payments issued by the corresponding insurance
        carriers in these cases, as indicated by [Appellant’s]
        accounting cards, are over one million dollars. On the
        accounting cards seized, the payment to Nathaniel Shaw is
        generally the first item listed on the card.

        While searching through the accounting cards inside
        [Appellant’s] office, your affiant noticed many additional
        accounting cards, which also indicated a payment to other
        individuals as the first entry on the card. Several different
        names appeared again and again, along with payment
        information, on these cards. These cards were similar to
        the cards indicating payments to Nathaniel Shaw, but
        these cards were not seized, and the names of the
        individuals were not recorded as they did not relate to
        search and seizure warrant # 118246.

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                                *     *      *

        On 01-03-2005, Nathaniel Shaw and his attorney…came
        into the District Attorney’s Office and made a statement.
        In summary, Shaw stated he has known [Appellant] for
        about thirty years. Shaw went on to state that he is
        involved in bringing clients into see [Appellant], and
        [Appellant] files fraudulent insurance claims on their
        behalf. [Appellant] pays [Shaw] from $150.00 to $500.00
        for each client. According to Shaw, [Appellant] is aware
        that the cases are fraudulent.         In fact, [Appellant]
        instructed Shaw to find locations with broken concrete,
        missing or broken steps, or broken handrails, and then
        take pictures of the defect. Shaw was to then match the
        location up with a client and to instruct the client on where
        to say they fell.

                                *     *      *

        Your affiant asked Shaw if there were others who also
        brought cases to [Appellant]. Shaw identified a Gerry
        Marshall and a Mario Westcott as bringing cases to
        [Appellant]. According to Shaw, Marshall told Shaw that
        he had referred a lot of cases to [Appellant]. Shaw stated
        that Westcott also stated that he referred cases to
        [Appellant]. In addition, Shaw stated he knew there were
        others, but didn’t know their names.

                                *     *      *

(See Amended PCRA Petition, filed 10/19/12, at Exhibit B; Appellant’s Brief

at Exhibit B.) Detective Murtha subsequently received a warrant to search

for records related to the other individuals who served as runners for

Appellant.

     The PCRA court reviewed Appellant’s claims concerning the affidavits

of probable cause as follows:

        [V]iewed in a commonsense manner, the information

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          contained in the [first] affidavit established an ongoing
          course of fraudulent conduct, evidence of which could be
          found in the records held by [Appellant] in his law office.
          The affidavit established that Shaw had been engaged in
          repeated fraudulent insurance claims at least until January
          2004,[5] that Shaw took the claimants to [Appellant’s]
          office, and that [Appellant] had filed claims and received
          payment on behalf of the claimants. Since the totality of
          the circumstances, as demonstrated in the affidavit,
          established a “fair probability” that evidence of fraudulent
          insurance claims would be found in [Appellant’s] offices,
          there was substantial evidence in the record to support the
          decision to issue the warrant.

                                       *       *    *

          [Appellant’s] claims of staleness are belied by the
          continuous course of conduct engaged in, as well as the
          nature of the records sought. The affidavit clearly details a
          course of conduct wherein Shaw recruited fake insurance
          claimants and presented those claimants to [Appellant].
          The affidavit also clearly describes the events therein in
          the present tense, detailing past claims of only a few years
          earlier to support the allegation of conduct that had begun
          five years earlier. Finally, the affidavit avers that each of
          these fraudulent claims were litigated by [Appellant], who
          maintained business records as part of that litigation. The
          affidavit, therefore, did not include remote or stale
          allegations, as the evidence sought would be expected to
          be found in the business records located in [Appellant’s]
          law office.

                                       *       *    *

          The averments in the affidavit for the second warrant
          established that the incriminating evidence sought in the
          warrant were not only likely to be kept in [Appellant’s]
____________________________________________


5
  The first affidavit of probable cause stated that Shirley Cottman’s
purported injury occurred on January 13, 2004. The incidents precipitating
the other fraudulent insurance claims mentioned in the first affidavit
occurred between 2000 and 2002.



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J-S24005-15


          offices, but were actually known to be located there. The
          affidavit established that [Appellant] kept accounting
          records for payments made to runners other than Shaw
          and that there were additional files associated with those
          runners.     Since the totality of the circumstances, as
          demonstrated in the affidavit, established more than a “fair
          probability” that additional evidence of fraudulent
          insurance claims would be found in [Appellant’s] offices,
          there was substantial evidence in the record to support the
          decision to issue the warrant.

(See PCRA Court Opinion, filed July 14, 2014, at 5-8.) We agree. Although

Appellant vigorously asserts that the first affidavit did not specifically allege

Appellant’s participation in/knowledge of criminal activity, we emphasize that

the affidavit had only to establish a fair probability that evidence of a crime

would be found at Appellant’s office.         See Murphy, supra.      Here, the

circumstances described in the first affidavit, including Appellant’s clients’

statements to Detective Murtha, created a fair probability that the detective

would find evidence related to the fraudulent insurance claims at Appellant’s

office.   As the search warrants were valid, all prior counsel cannot be

deemed ineffective for failing to challenge them.         See Pierce, supra;

Poplawski, supra.

      Regarding trial counsel’s failure to object to the admission of allegedly

improper evidence, the PCRA court noted:

          It is true that the Commonwealth’s case included evidence
          of numerous fraudulent claims that were remote enough in
          time to be barred by the statute of limitations applicable to
          theft and insurance fraud. However, all of this evidence
          was clearly relevant and admissible….

          First, the evidence was admissible…for the Commonwealth

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        to prove necessary predicate acts for [Appellant’s] corrupt
        organization charge.

                                 *     *      *

        As the evidence objected to by [Appellant] was directly
        relevant to establish predicate acts constituting a “pattern
        of racketeering activity,” a requisite element of the corrupt
        organization charge, [Appellant] was not unfairly
        prejudiced by the [admission] of such evidence.

                                 *     *      *

        Finally, the evidence was admissible under Pa.R.E. 404(b)
        to establish that the fraudulent acts with which [Appellant]
        was charged were part of a common scheme or plan.

                                 *     *      *

        Here, evidence of [Appellant’s] past interactions with Shaw
        and other runners was admissible to demonstrate
        [Appellant’s] common scheme and plan.            [Appellant]
        utilized runners to scope out potential locations for a
        fraudulent accident. The same runner would then recruit
        an individual to claim that they had been injured in that
        location, whereupon the runner would take the claimant to
        [Appellant] for legal representation. [Appellant] would
        then pay the runner a fee and would file a fraudulent claim
        on behalf of the claimant. Upon completion of the case,
        [Appellant] would split the proceeds of any financial award
        pursuant to a fee agreement. In many instances, the only
        difference between the “stale acts” and the acts for which
        [Appellant] was convicted were the physical location of the
        claimed accident and the amount of money distributed.
        Clearly, [Appellant’s] course of conduct was sufficiently
        similar to the conduct at issue as to be admissible as
        evidence of [Appellant’s] common scheme and plan.

(See PCRA Court Opinion at 8-11) (internal citations omitted).        We agree

that the trial court properly admitted the relevant evidence at issue.     See

Drumheller, supra; Santiago, supra.           Thus, Appellant’s claim that trial


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counsel should have objected to the admission of the evidence, lacks

arguable merit. Therefore, Appellant is not entitled to relief on his first and

second issues. See Pierce, supra; Poplawski, supra.

      In his third issue, Appellant reiterates his allegations regarding the

purportedly defective search warrants. Appellant maintains he satisfied his

burden of proof in the PCRA court, because “[w]hat was required…was that

the jury verdict could have been different but for the admission of the

illegally obtained and stale evidence.” (Appellant’s Brief at 41). Appellant

concludes he is entitled to a new trial on this basis. Nevertheless, we have

already determined that probable cause supported the issuance of the

search warrants, and the trial court properly admitted the evidence obtained

through execution of the warrants. Thus, the PCRA court correctly applied

the law, and Appellant’s third issue warrants no relief.       See Conway,

supra.   Accordingly, we affirm the court’s order disposing of Appellant’s

PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2015




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