J-S60013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

RONALD ANDREW KESSELRING

                          Appellant                  No. 554 MDA 2014


                Appeal from the PCRA Order March 4, 2014
              In the Court of Common Pleas of Adams County
            Criminal Division at No(s): CP-01-CR-0000196-2011


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                               FILED APRIL 14, 2015

      Ronald Andrew Kesselring appeals from the order entered on March 4,

2014, in the Court of Common Pleas of Adams County, denying him relief on

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. § 9541 et seq.     Kesselring raises two issues in this timely appeal.

He claims the PCRA court erred in determining trial counsel was not

ineffective for (1) failing to challenge the existence of probable cause in the

search warrant affidavit, and (2) failing to challenge the veracity of the

search warrant affidavit, which was false by omission. Following a thorough

review of the submissions by the parties, relevant law, and the certified

record, we affirm.

      The relevant factual history of this matter is briefly stated.        On

December 12, 2010, Reading Township Police Officer Eric Beyer went to
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Kesselring’s residence on a matter unrelated to this appeal. One of Officer

Beyer’s duties is as a firearms instructor, and he has received additional

training regarding firearms. While he was there, he saw what appeared to

be a small caliber rifle, sitting on top of Kesselring’s refrigerator.   Officer

Beyer was approximately three feet away from the refrigerator at the time.

The barrel of the rifle was pointed away from Officer Beyer. However, he

could see the wooden stock of the gun and that it had a sticker on it. From

his personal knowledge, he believed the gun was a .22 caliber Mossberg

rifle, which had a similar wooden stock. Additionally, Mossberg was the only

arms manufacturer he knew that put a sticker on the stock of its rifles.

Kesselring’s possession of a rifle had no direct relevance to why Officer

Beyer was visiting that day, and Officer Beyer did not pick up the gun at that

time. However, when he returned to the police station, Officer Beyer ran a

background check on Kesselring and determined he was a previously

convicted felon and was prohibited from legally possessing a firearm.

       Based upon his observation at Kesselring’s residence and his research

into Kesselring’s background, Officer Beyer obtained a search warrant for

Kesselring’s residence and garage.1 When the warrant was served, the rifle

was located and determined to be a spring activated pellet gun, which,

therefore, Kesselring was legally entitled to own.       However, while the

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1
  Kesselring’s business was conducted on the same property. The warrant
allowed the search of all buildings.



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warrant was being served, Kesselring admitted to owning two antique

firearms. One was a .44 caliber cap and ball revolver and the other a .50

caliber flintlock rifle.       Both of the weapons were seized and were

subsequently determined to be fully functional. Kesselring was charged with

two counts of illegal possession of a firearm. 2

        Counsel filed a motion to suppress the physical evidence, claiming the

warrant was based upon false information, namely the misidentification of

the BB gun.        The motion to suppress was denied and Kesselring was

subsequently convicted by a jury of both counts.       Kesselring received an

aggregate sentence of 11 months and 29 days to 23 months and 29 days’

incarceration concurrent with 5 years of intermediate punishment, the first

18 months of which was to be served as house arrest.        Kesselring filed a

direct appeal that afforded him no relief.         This timely PCRA petition

followed.3

        In reviewing the denial of PCRA relief, we examine whether “the
        PCRA court’s determinations are supported by the record and are
        free of legal error.” Commonwealth v. Robinson, --- Pa. ----, -
        ---, 82 A.3d 998, 1005 (2013) (quotation and quotation marks
        omitted). See Commonwealth v. Strong, 563 Pa. 455, 461 n.
        3, 761 A.2d 1167, 1170 n. 3 (2000) (“Since most PCRA appeals
        involve ... issues raising mixed questions of fact and law, our
        standard of review is whether the findings of the PCRA court are
____________________________________________


2
    18 Pa.C.S. § 6105(a)(1).
3
 It is undisputed that this petition is timely, having been filed on October 4,
2013, approximately seven months after his sentence became final on March
21, 2013. Accordingly, we need not recite the PCRA’s statutory time limits.



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     supported by the record and free of legal error.”) (citations
     omitted). “The PCRA court’s credibility determinations, when
     supported by the record, are binding on this Court; however, we
     apply a de novo standard of review to the PCRA court’s legal
     conclusions.” Commonwealth v. Roney, 622 Pa. 1, 16, 79
     A.3d 595, 603 (2013) (citation omitted).

Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014).

     Additionally, when examining a claim of ineffective assistance of

counsel, we note,

     [t]rial counsel is presumed to be effective, and appellant has the
     burden of proving otherwise. Commonwealth v. Williams, 524
     Pa. 218, 570 A.2d 75, 81 (1990). Appellant must prove: (1) his
     underlying claim is of arguable merit; (2) counsel’s performance
     lacked a reasonable basis; and (3) counsel’s action or inaction
     caused him prejudice. Commonwealth v. Pierce, 515 Pa. 153,
     527 A.2d 973, 975-77 (1987); see also Commonwealth v.
     Gwynn, 596 Pa. 398, 943 A.2d 940, 945 (2008). To
     demonstrate prejudice, appellant must show there is a
     reasonable probability that, but for counsel’s error, the outcome
     of the proceeding would have been different. Commonwealth
     v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001). When it is
     clear the party asserting an ineffectiveness claim has failed to
     meet the prejudice prong of the ineffectiveness test, the claim
     may be dismissed on that basis alone, without a determination
     of whether the first two prongs have been met.
     Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 224-25
     (2007) (citation omitted). Failure to meet any prong of the test
     will defeat an ineffectiveness claim. Id., at 224. Counsel is not
     ineffective for failing to raise meritless claims. Commonwealth
     v. Peterkin, 538 Pa. 455, 649 A.2d 121, 123 (1994) (citation
     omitted).

Commonwealth v. Wright, 961 A.2d 119, 148-49 (Pa. 2008) (footnote

omitted).

     Kesselring’s first claim is that the PCRA court erred in determining that

trial counsel was not ineffective for failing to challenge the existence of

probable cause in the search warrant affidavit. Specifically, he argues the

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affidavit of probable cause merely refers to Officer Beyer having observed a

rifle, without any further explanation of the different possibilities of what

“rifle” meant, or any accompanying explanation of how Officer Beyer came

to the conclusion that what he had seen was a firearm.4

        In analyzing this argument, the PCRA court took note of the legal

principles applicable to the review of the sufficiency of an affidavit of

probable cause. The PCRA court correctly stated:

        Before an issuing authority may issue a constitutionally valid
        search warrant, he or she must be furnished with information
        sufficient to persuade a reasonable person that probable cause
        exists to conduct a search. The standard for evaluating a search
        warrant is a ‘totality of the circumstances’ test as set forth in
        Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527
        (1983), and adopted in Commonwealth v. Gray, 509 Pa. 476,
        503 A.2d 931 (1985). A magistrate is to make a ‘practical,
        common sense decision whether, given all the circumstances set
        forth in the affidavit before him, including the ‘veracity’ and
        ‘basis of knowledge’ of persons supplying hearsay information,
        there is a fair probability that contraband or evidence of a crime
        will be found in a particular place.’ The information offered to
        establish probable cause must be viewed in a common sense,
        non-technical manner. Probable cause is based on a finding of
        the probability, not a prima facie showing of criminal activity,
        and deference is to be accorded a magistrate's finding of
        probable cause.
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4
    For purposes of 18 Pa.C.S. § 6105, a firearm is defined as:

        (i) Firearm.--As used in this section only, the term “firearm”
        shall include any weapons which are designed to or may readily
        be converted to expel any projectile by the action of an explosive
        or the frame or receiver of any such weapon.

18 Pa.C.S. § 6106(i).



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PCRA Court Opinion, 3/4/2014, at 4, quoting Commonwealth v. Ryerson,

817 A.2d 510, 513-14 (Pa. Super. 2003) (citation omitted).

     Further, we note that when reviewing a challenge to the existence of

probable cause in support of a search warrant,

     “An affidavit of probable cause to support a search warrant does
     not require a prima facie showing of criminal activity on the part
     of the occupants of the premises to be searched.”
     Commonwealth v. Gutierrez, 969 A.2d 584, 588 (Pa. Super.
     2009) (quotation and quotation marks omitted), appeal denied,
     603 Pa. 690, 983 A.2d 726 (2009). Moreover, “[a] reviewing
     court may not conduct a de novo review of the issuing
     authority's probable cause determination. The role of both the
     reviewing court and the appellate court is confined to
     determining whether there is substantial evidence in the record
     supporting the decision to issue the warrant.” Commonwealth
     v. Wallace, 953 A.2d 1259, 1262 (Pa. Super. 2008) (quotation
     and quotation marks omitted), reversed on other grounds, 615
     Pa. 395, 42 A.3d 1040 (2012). “We must limit our inquiry to the
     information within the four corners of the affidavit submitted in
     support of probable cause when determining whether the
     warrant was issued upon probable cause.” Commonwealth v.
     Rogers, 419 Pa. Super. 122, 615 A.2d 55, 62 (1992).

Commonwealth v. Bourgos, 64 A.3d 641, 655-56 (Pa. Super. 2013).

     The affidavit of probable cause states, in relevant part:

     I [Officer Eric B. Beyer, Reading Township Police Department]
     have been a police officer in the Commonwealth of Pennsylvania
     for approximately eleven years. Prior to becoming employed as
     a police officer, I attended and successfully completed the
     required basic training as outlined by the Municipal Police
     Officer’s Education and Training Commission, through Harrisburg
     Area Community College. As a police officer, I am authorized by
     law to serve search warrants and make arrests. I am also a
     firearms instructor and have a familiarity with handguns, rifles,
     shotguns, and other firearms.


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      On 12 December 2010 at or about 1310 hrs., I went to 2630
      Hunterstown-Hampton Road, New Oxford, Reading Township,
      Adams County, PA 17350, in an effort to follow up on a
      Harassment complaint. While at this location, I made contact
      with Ronald Ray Kesselring, who is the resident at this location.
      Kesselring is also the owner of Café’s Custom Cycles, a business
      located in a detached building at this address.            As such,
      Kesselring has unfettered access to the residence, business, and
      detached garage.      Upon my arrival at 2630 Hunterstown-
      Hampton Road, New Oxford, Reading Township, Adams County,
      PA 173450 [sic], I was invited into the residence by Ronald Ray
      Kesselring, who, as the resident therein, has the right to permit
      entry. During my presence at this location, I observed what
      appeared to me, based upon my training, education, and
      experience, to be a functional rifle, on top of the refrigerator.

      After completing my interview at 2630 Hunterstown-Hampton
      Road, New Oxford, Reading Township, Adams County, PA 17350,
      I obtained a criminal history via the National Crime Information
      Computer Systems, for Ronald Ray Kesselring. This criminal
      history shows that on 3 March 1987, Ronald Ray Kesselring was
      arrested, and subsequently convicted of a felony under the act of
      April 14, 1972, also known as the Controlled Substances, Drug,
      Device, and Cosmetic Act. As such, Ronald Ray Kesselring would
      be prohibited from possessing, using, manufacturing, controlling,
      selling or transferring firearms.

      It has been my experience, based upon my training, education,
      and prior investigations, that persons that own and possess
      firearms will own or possess multiple firearms. My training,
      education and experience has shown that persons that possess
      firearms will possess them in multiple locations, such as their
      residence or business and other buildings that they may control.

Affidavit of Probable Cause, 12/14/2010.

      Our review leads us to conclude the PCRA court committed no error

dismissing Kesselring’s claim that the affidavit did not provide probable

cause. We agree with the PCRA court that in reading the entire affidavit, it

is clear that Officer Beyer was referring to a firearm when he related that he

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had seen a rifle in Kesselring’s kitchen. We further agree, at least within the

context of this matter, that the word “rifle” is a word of common use and

understanding that does not require additional clarification.      The affidavit

uses the terms “rifle” and “firearm” interchangeably.         This is especially

relevant in the paragraph in which Officer Beyer states that as a convicted

felon, Kesselring is not permitted to possess a firearm.        While Kesselring

argues “rifle” could be interpreted as any of a variety of devices, including

spring loaded pellet guns, the affidavit makes no sense if a person was to

assume that by “rifle”, Officer Beyer meant any of the possible definitions,

only one of which would be illegal for Kesselring to possess.

      In essence, read in a common sense manner, the affidavit of probable

cause sets forth Officer Beyer’s familiarity with firearms, his belief that he

saw a firearm in Kesselring’s kitchen, and the fact that Kesselring has a

felony conviction making it illegal for him to possess a firearm.         These

statements set forth probable cause to believe Kesselring was illegally in

possession of a firearm. Accordingly, the PCRA court correctly determined

trial counsel was not ineffective for failing to challenge the existence of

probable cause in the search warrant.

      Kesselring’s second claim is that the PCRA court erred in determining

trial counsel was ineffective for failing to challenge the veracity of the search

warrant.   Here, the PCRA court determined the issue had been previously

litigated on direct appeal.   See Commonwealth v. Kesselring, 55 A.3d


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146 (Pa. Super. 2012) (unpublished memorandum).5 Accordingly, pursuant

to 42 Pa.C.S. § 9543(a)(3), the claim is not cognizable under the PCRA.

Additionally, given that trial counsel did challenge the veracity of the

information contained in the search warrant, counsel cannot have been

ineffective for failing to do that which was done. Therefore, not only is this

claim not cognizable under the PCRA, it is also substantively without merit.

        Because the PCRA court’s order is supported by the record and is free

of legal errors, we affirm.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2015



____________________________________________


5
    Specifically, the claim raised on direct appeal was:

        Whether the Adams County Court of Common Pleas erred as a
        matter of law in denying [Kesselring’s] Omnibus Pre-trial Motion
        to Suppress Evidence of the firearms seized was a result of the
        search warrant which was issued based upon false and
        inaccurate information contained in the Affidavit of Probable
        Cause?

Id. at 3.



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