J-S31024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                        Appellee          :
                                          :
            v.                            :
                                          :
LAMAR ALLEN,                              :
                                          :
                        Appellant         :     No. 2299 EDA 2013


           Appeal from the PCRA Order Entered August 5, 2013,
           In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0010365-2009.


BEFORE: BOWES, SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED AUGUST 29, 2014

      Appellant, Lamar Allen, appeals from the order entered on August 5,

2013, that denied his petition filed pursuant to the Post Conviction Relief Act

                                -9546. We affirm.

      The PCRA court set forth the relevant facts of this case as follows:

            The evidence presented at the suppression hearing is
      summarized as follows. On June 27, 2009, between 2:30 and
      3:00 a.m., Officer Davis of the Philadelphia Police Department
      responded to a call of a robbery near 17th and Pine Streets, in
      the city and county of Philadelphia, Pennsylvania. Upon arriving
      on the scene, the officer spoke to the robbery victims
                          Marisa Guaglione Stevens, Glenn Stevens,
      and Christopher Guaglione.1 Based on information supplied by

      the robbery suspect(s) over police radio. (N.T. 2/1/10, pp. 74-
      77).
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           1
            Glenn Stevens
           Marisa  Guaglione       Stevens     (Mrs.    Stevens).


          At the time of the robbery, Sergeant Dominick Cole was
     working bike patrol near 5th and South Streets, in the city and
     county of Philadelphia, Pennsylvania. While directing traffic,
     Sergeant Cole observed a gray Yukon vehicle turn the wrong
     way on 5th Street. The officer signaled the vehicle to pull over so

     complied. (Id., pp. 16-19, 38).


     while another officer (Officer Rivera) approached the passenger
     side. Appellant was the sole passenger in the vehicle. Sergeant
     Cole asked the driver for his license, registration and insurance


     what he asserted to be his name, but when the officer checked
     this name with the Department of Motor Vehicles (DMV), the

     name. (Id., pp. 20-21).

          At this point, Sergeant Cole requested the driver to exit
     the vehicle and advised that the car would be impounded
                                                       ecause the



     (Id., p. 21).2
           2
               The driver eventually provided Sergeant Cole

           license had been issued under this second name.
           (Id., p. 39).

           While Sergeant Cole and Officer Rivera escorted the driver

     sweatshirt o


     white male who resided near 17th and Pine Streets. Upon


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     inquiring over police radio whether any robberies recently
     occurred in that area, the officers learned that one had just
     occurred at 17th and Pine Streets. Sergeant Cole therefore
     requested that the robbery victims be brought to 5th and South
     Streets for purposes of identification. (Id., pp. 23-24, 42-43).

            By this time, another officer, Officer Corrado, had arrived
                                                                    Id.,
     p. 67). When she attempted to remove Appellant from the
     passenger seat, a glove fell from the vehicle and landed on the
     pavement. Officer Corrado leaned over to retrieve the glove and
     observed the handle of a gun beneath the passenger seat.
     Officer Corrado immediately notified Sergeant Cole and Officer
     Rivera of her discovery, assisted them in securing Appellant in
     handcuffs, and recovered the weapon. (Id., pp. 68-69).3 The
     officers also recovered several items from the floor of the vehicle
     where they discovered the gun, including several cell phones, a
     camera, and credit cards. (Id., pp. 27-29). After removing
     Appellant from the vehicle, Officer Corrado asked whether he

     stated that the gun belonged to his brother. (Id., pp. 68-69).
           3

           with ten (10) live rounds. (Id., p. 23).


     transported the complainants to 5th and South Streets for
     possible identification. Upon seeing Appellant, all of the
     complainants identified him as the man who robbed them at

                             Id., pp. 77-81). The complainants also
     identified the gun used by Appellant in the robberies, and
     confirmed that the items recovered from the vehicle belonged to
     them. (Id., pp. 34-35).

           After these positive identifications, Officer Rivera searched
     Appellant and recovered from his left pocket an ID and credit
     card belonging to Mrs. Stevens. (Id., p. 57).

           Appellant provided no testimony or other evidence at the

     owner, never testified that [the driver] had permission to


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J-S31024-14




      unidentified owner gave Appellant permission to occupy the
      vehicle. Based
      denied Appellants suppression motion in its entirety.

PCRA Court Opinion, 2/12/14, at 2-4.

      Appellant was charged with three counts each of robbery, theft by

unlawful taking, receiving stolen property, simple assault, and recklessly

endangering another person, two counts of violating the Uniform Firearms

Act, and one count of possessing an instrument of crime. Appellant filed a

motion to suppress physical evidence, out-of-court identifications, and his

statements to police. The motion was denied, and the case proceeded to a

bench trial. At the conclusion of the trial, Appellant was found guilty on all

charges.   On March 24, 2010, the trial court sentenced Appellant to an

aggregate term of ten to twenty years of incarceration, followed by six

months of probation. Appellant filed a timely appeal, and his judgment of

sentence was affirmed on March 31, 2011. Commonwealth v. Allen, 891

EDA 2010, 26 A.3d 1212 (Pa. Super. filed March 31, 2011) (unpublished

memorandum

for allowance of appeal on September 14, 2011. Commonwealth v. Allen,

29 A.3d 370 (Pa. 2011).

      On January 11, 2012, Appellant, through counsel, filed a timely PCRA

petition, and on August 5, 2013, the PCRA court dismissed the petition. This

timely appeal followed.


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      On appeal, Appellant raises the following issues:

      A. Is the appellant entitled to post-conviction relief in the form of
      a new trial or a remand for an evidentiary hearing as a result of
      the ineffective assistance of appellate counsel for failing to raise

      motion to suppress physical evidence?

      B. Is the appellant entitled to post-conviction relief in the form of
      a remand for resentencing or for an evidentiary hearing as a
      result of the ineffective assistance of trial counsel for failing to
      file and litigate a post-sentence motion in the nature of a motion
      for reconsideration of sentence?



      When reviewing the propriety of an order granting or denying PCRA

relief, this Court is limited to determining whether the evidence of record

supports the determination of the PCRA court and whether the ruling is free

of legal error.   Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.

2007).     Great deference is granted to the findings of the PCRA court, and

these findings will not be disturbed unless they have no support in the

certified record.       Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.

Super. 2003).       There is no right to an evidentiary hearing on a PCRA

petition, and the PCRA court may decline to hold a hearing if the claims are

patently    frivolous    and   without   a    trace   of   support   in   the   record.

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). On

review, we examine the issues raised in the petition in light of the record to

determine whether the PCRA court erred in concluding that there were no




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genuine issues of material fact and in denying relief without an evidentiary

hearing. Id.

      When considering an allegation of ineffective assistance of counsel, we

note that counsel is presumed to have provided effective representation

unless the PCRA petitioner pleads and proves that: (1) the underlying claim

is of arguable merit; (2) counsel had no reasonable basis for his or her

conduct; and (3)

Commonwealth v. Pierce, 527 A.2d 973, 975-

to meet the prejudice prong of the ineffectiveness standard, a defendant

must show that there is a reasonable probability that but for the act or

omission in question the outcome of the proceeding would have been

           Commonwealth v. Wallace, 724 A.2d 916, 921 (Pa. 1999). A

claim of ineffective assistance of counsel will fail if the petitioner does not

meet any of the three prongs.       Commonwealth v. Williams, 863 A.2d

505, 513 (Pa. 2004) (quoting Commonwealth v. Rush, 838 A.2d 651, 656

(Pa. 2003)).

      Upon review of the issues raised, the briefs of the parties, the certified

rec

thorough   and     well-crafted   opinion    filed   on   February   12,   2014,

comprehensively outlines the relevant standards and law, and it correctly

                                                 we affirm the August 5, 2013




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the event of further proceedings in this matter.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2014




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