J-S64006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JUSTIN T. STACKHOUSE

                            Appellant                No. 52 WDA 2014


                Appeal from the PCRA Order December 20, 2013
                 In the Court of Common Pleas of Butler County
              Criminal Division at No(s): CP-10-CR-0000959-2011


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                     FILED NOVEMBER 25, 2014

        Justin T. Stackhouse appeals from the order of the Court of Common

Pleas of Butler County, which denied his petition brought pursuant to the

Post-Conviction Relief Act (“PCRA”).1 After careful review, we affirm.

        On direct appeal of Stackhouse’s judgment of sentence, this Court

affirmed the trial court and summarized the facts of this case as follows:

        The Pennsylvania State Police had received information that
        [Stackhouse] and several other individuals had been purchasing
        large amounts of pseudoephedrine at various pharmacies. After
        investigating the matter, members of the Pennsylvania State
        Police went to [Stackhouse’s] residence at 132 Cherry Valley
        Road in Butler County to conduct what they termed a “knock and
        talk” on May 20, 2011.       They wanted to speak with the
        occupants of the residence about suspected manufacturing of
        methamphetamine and [Stackhouse’s] outstanding warrants
        from Florida.
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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     The officers proceeded to walk up the driveway to the house
     where they observed two fans located in the basement stairwell
     pointing outward acting as a form of an exhaust system. As the
     troopers continued to the backdoor, they saw a burnt “blister
     pack,” which is packaging for pseudoephedrine, and a piece of
     surgical tubing near the steps leading to the back porch. The
     troopers believed these items were all indicia of a
     methamphetamine lab.

     When the officers knocked on the door, [Stackhouse’s] girlfriend,
     Robyn Tuttle (“Tuttle”), answered. The troopers, who were not
     in uniform, identified themselves and asked her to get
     [Stackhouse] to come outside. [Stackhouse] “[c]ame out, swore
     at us a little bit, ran back in, and eventually we got him out of
     the house to talk to him.” Tuttle’s father and Tuttle’s five-year-
     old son were also in the residence at the time. [Stackhouse]
     was handcuffed and placed on the ground as he was acting very
     “unruly” and “wild.”           After consulting privately with
     [Stackhouse], Tuttle gave the officers permission to search the
     residence and signed the consent form. The troopers agreed
     that [Stackhouse] was permitted to walk through the residence
     during the search.

     [Stackhouse] took the officers through the house and while in
     his bedroom, pointed out a black box where he kept items he
     used for taking drugs. Additionally, several gallon-sized freezer
     bags were recovered containing meth oil; essentially a
     combination of Coleman fuel and methamphetamine, which was
     one    step   away     from  being    converted    into    usable
     methamphetamine. [Stackhouse] was arrested and charged
     with various offenses.

     On July 26, 2011, [Stackhouse] filed an omnibus pre-trial motion
     challenging the legality of the search. The motion was denied on
     September 2, 2011. Following a jury trial, [Stackhouse] was
     convicted of unlawful manufacturing of methamphetamine (child
     under 18 years of age present), possession of methamphetamine
     precursors with intent to manufacture methamphetamine,
     possession with intent to manufacture a controlled substance of
     100 grams or more, possession of a controlled substance, and
     possession of drug paraphernalia; he was found not guilty of
     endangering the welfare of a child.



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     [Stackhouse] was sentenced on January 26, 2012; with regard
     to   his   conviction   for  unlawful    manufacturing   of
     methamphetamine. [Stackhouse] was sentenced to 35 to 70
     months’ incarceration to be served concurrently with his
     sentence of 96 to 240 months for possession with intent to
     manufacture methamphetamine in excess of 100 grams.

Commonwealth         v.   Stackhouse,    No.   338   WDA   2012,   unpublished

memorandum at 1-4 (citations omitted).

     Stackhouse filed a timely PCRA petition on June 10, 2013, and on

August 9, 2014, he filed a counseled amended petition. The PCRA court held

a hearing on September 19, 2013, and by memorandum and order dated

December 20, 2013, it denied the petition.

     On appeal, Stackhouse raises the following issue and sub-issues for

our review:

     1. Whether the trial court erred as a matter of law in finding that
        [Stackhouse] failed to demonstrate the assertions forming the
        basis of [his] ineffective assistance of counsel claim were
        meritorious.

              A. Whether the trial court erred as a matter of law in
                 finding that the consent given by Tuttle was [not] the
                 result of coercion and that the evidence recovered
                 during the subsequent search would not have been
                 suppressed as the fruits of an illegal search.

              B. Whether the trial court erred in considering evidence
                 not of record in violation of the procedural due process
                 guarantees of the Fourteenth Amendment.

              C. Whether the trial court erred as a matter of law in
                 finding that the search conducted by Trooper Walker did
                 not exceed the scope of consent given by Tuttle and
                 that the evidence recovered during the search would
                 not have been suppressed as the fruits of an illegal
                 search.



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Brief of Appellant, at 4.2

       In reviewing an appeal from the denial of PCRA relief, “our standard of

review is whether the findings of the court are supported by the record and

free of legal error.”      Commonwealth v. Martin, 5 A.3d 177, 182 (Pa.

2010) (citations omitted).

       To be eligible for relief under the PCRA, Stackhouse must prove by a

preponderance of the evidence that his conviction resulted from “ineffective

assistance of counsel which, in the circumstances of the particular case so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.”           42 Pa.C.S. § 9543(a)(2)(ii).

“Counsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”           Commonwealth v. Ousley, 21 A.3d

1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the

defendant must show that the underlying claim had arguable merit, counsel

had no reasonable basis for his or her action, and counsel’s action resulted

in prejudice to the defendant. Commonwealth v. Prince, 719 A.2d 1086,

1089 (Pa. Super. 1998).

       Stackhouse argues that his counsel was ineffective for failing to

include in his omnibus pretrial motion a challenge to the validity of Tuttle’s

consent to search the property.           At the PCRA hearing on September 19,

____________________________________________


2
 We have changed the order in which the issues are raised to facilitate our
analyisis.



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2013, Stackhouse called his trial counsel, Armand Cingolani, III, Esquire, as

a witness. Attorney Cingolani testified that he believed Tuttle’s consent was

valid:
         This was her house. So did I presume that her consent was
         valid[?] [Y]es. And Mr. Stackhouse had by that time told me
         that he had led the police officer through the house and showed
         him stuff especially in the basement. So, I thought I would get
         myself into a trap denying consent whenever he was showing
         them around and consenting to them searching. So consent was
         not a focus of this because of his actions. It put me in the
         position of arguing there’s no consent but I’m consenting, which
         is just absurd. So that’s why I didn’t do it.

N.T. PCRA Hearing, 9/9/13, at 20-21.

         Attorney Cingolani testified that he chose not to address the validity of

Tuttle’s consent to search in the pre-trial motion or at trial. Regarding the

pre-trial motion, he testified, “I did not think that consent, her consent

would work nor did I know enough about it at the time nor could I have

talked to her at the time. They would have all said this is not your client.”

Id. at 27.      Rather, Attorney Cingolani’s focus in the pre-trial motion was

Stackhouse’s lack of consent.

         When asked whether he challenged Tuttle’s consent at trial, Attorney

Cingolani testified, “I chose not to because in my experience he could not

use her consent or non-consent and I could not raise it. She was the renter

of the property. He was a guest there.” Id. at 28.

         Based on Attorney Cingolani’s testimony, it is clear that he had a

reasonable basis not to challenge Tuttle’s consent. See Prince, supra.




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      To prevail on a claim of ineffective assistance of counsel, Stackhouse

had to prove there was arguable merit to his claim that Tuttle’s consent to

the search of the house was invalid. See Prince, supra. Here, the PCRA

court did not have to speculate whether a court would have sustained a pre-

trial challenge to Tuttle’s consent because Tuttle, in fact, filed her own

omnibus pretrial motion raising that claim, which the trial court denied.

Commonwealth v. Tuttle, CP-10-CR-960-2011.             Stackhouse asserts that

the PCRA court’s reliance on the findings of fact issued by the Tuttle court

constitutes a violation of his Sixth Amendment rights because he was not a

party to those proceedings and did not have the opportunity to cross-

examine the troopers who testified at the hearing.

      Had the PCRA court relied exclusively on the denial of Tuttle’s pre-trial

motion as a basis for finding a lack of arguable merit, we might have found

some validity to Stackhouse’s position.     However, because the PCRA court

had an independent basis on which to reach its conclusion that there was no

arguable merit, we decline to grant relief on this issue.

      Stackhouse further asserts that the PCRA court erred in finding that

the search did not exceed the scope of consent given by Tuttle and that the

evidence recovered during the search would not have been suppressed as

the fruits of an illegal search. At the PCRA hearing, Tuttle testified:

      The first discussion [the officers] asked me if I would consent to
      the search of the home and I said no. The first time. They
      asked a second time, and I told them I would have to discuss it
      with Mr. Stackhouse before I made any answers for them. So,
      at the time I proceeded to speak with Mr. Stackhouse about

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     searching the premises, and the condition that we came up with
     that we agreed on was that I would sign the consent but Mr.
     Stackhouse had to escort the officers into the home.

N.T. PCRA Hearing, 9/19/13, at 76-77.

     Based on the record developed at the PCRA hearing, the court

concluded that Stackhouse did, in fact, accompany the officers during their

search of the premises. Accordingly, it determined that the search did not

exceed the scope of Tuttle’s consent. Under these circumstances, there was

no arguable merit to Stackhouse’s claim that Attorney Cingolani’s failure to

raise the issue in a motion to suppress constituted ineffective assistance of

counsel.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2014




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