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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
PATRICK E. GARDINOR,                     :          No. 926 MDA 2019
                                         :
                        Appellant        :


             Appeal from the PCRA Order Entered May 8, 2019,
              in the Court of Common Pleas of Luzerne County
             Criminal Division at No. CP-40-CR-0002618-2014


BEFORE: PANELLA, P.J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: APRIL 27, 2020

      Patrick E. Gardinor appeals from the May 8, 2019 order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

      The factual history of this case is not relevant to our disposition and

need not be reiterated here. The pertinent procedural history of this case, as

gleaned from the certified record, is as follows: On June 3, 2014, appellant

was arrested by members of the Pennsylvania Internet Crimes Against

Children Task Force (“Task Force”) following the execution of a search warrant

at his residence, and charged with multiple counts of distribution of child

pornography, possession of child pornography, and criminal use of a
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communication facility.1     Appellant waived his right to a jury trial and

proceeded to a bench trial on November 9, 2016. Following a one-day trial,

the trial court found appellant guilty of 100 counts of possession of child

pornography and one count each of distribution of child pornography and

criminal use of a communication facility. On February 27, 2017, the trial court

sentenced appellant to an aggregate term of five to ten years’ imprisonment,

followed by ten years’ probation. Appellant was also ordered to register as a

Tier II non-violent sexual offender for a period of 25 years, pursuant to

42 Pa.C.S.A. § 9799.10 et seq. (“SORNA”). Appellant filed a direct appeal

with this court that he withdrew on November 7, 2017.          Thereafter, on

November 13, 2017, appellant filed a timely, counseled PCRA petition wherein

he argued that trial counsel2 was ineffective for failing to file a motion to

suppress appellant’s computer because the search warrant application was

stale. (See PCRA petition, 11/13/17 at 4-5, ¶ 17.) Following an evidentiary

hearing, the PCRA court dismissed appellant’s petition on May 8, 2019. This

timely appeal followed.3




1   18 Pa.C.S.A. §§ 6312(c), 6312(d), and 7512(a), respectively.

2Appellant was represented during the suppression phase of this case by
George Skumanick, Esq.

3 The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b). On August 1,
2019, the PCRA court filed a “statement in lieu of opinion” indicating that it
was relying on the reasoning set forth in its prior opinion authored in support
of its May 8, 2019 order denying appellant’s PCRA petition.


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      Appellant raises the following issue for our review:

            Did the PCRA [c]ourt err when it refused to find that
            [trial] counsel was ineffective for failing to move to
            suppress a computer that was obtained pursuant to a
            search warrant that was based on information that
            was five months old?

Appellant’s brief at 2.

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). In order to be eligible for PCRA relief, a defendant must

plead and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2). Further, these issues must be neither previously litigated nor

waived. 42 Pa.C.S.A. § 9543(a)(3).

      To prevail on a claim of ineffective assistance of counsel under the PCRA,

a petitioner must plead and prove by a preponderance of the evidence that

counsel’s ineffectiveness “so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place.”

42 Pa.C.S.A. § 9543(a)(2)(ii). We apply a three-pronged test for determining

whether trial counsel was ineffective, derived from the test articulated by the



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United States Supreme Court in Strickland v. Washington, 466 U.S. 668,

687 (1984), and as applied in Commonwealth v. Pierce, 527 A.2d 973 (Pa.

1987). Commonwealth v. Simpson, 66 A.3d 253 (Pa. 2013).

            The Pierce test requires a PCRA petitioner to prove:
            (1) the underlying legal claim was of arguable merit;
            (2) counsel had no reasonable strategic basis for his
            action or inaction; and (3) the petitioner was
            prejudiced—that is, but for counsel’s deficient
            stewardship, there is a reasonable likelihood the
            outcome of the proceedings would have been
            different.

Id. at 260, citing Pierce, 527 A.2d at 975.

      This court has explained that a petitioner “must meet all three prongs

of the test for ineffectiveness[.]” Commonwealth v. Charleston, 94 A.3d

1012, 1020 (Pa.Super. 2014) (citation and internal quotation marks omitted),

appeal denied, 104 A.3d 523 (Pa. 2014).         “[C]ounsel is presumed to be

effective and the burden of demonstrating ineffectiveness rests on appellant.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation

omitted), appeal denied, 30 A.3d 487 (Pa. 2011). Additionally, we note that

counsel cannot be found ineffective for failing to raise a claim that is devoid

of merit. See Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).

      Instantly, appellant contends that trial counsel was ineffective failing to

file a motion to suppress the computer seized from his residence because the

search warrant application was stale. (Appellant’s brief at 4). In support of

this contention, appellant argues that “[Task Force] Agent [Kurt] Smith

discovered the child pornography [o]n January[ 29,] 2014 [and] . . . did not


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apply for a search warrant to search [appellant’s] home until over [four]

months later [o]n June[ 3,] 2014.”         (Id. at 7 (timeframe corrected).)

Appellant maintains that the PCRA court’s reliance on Commonwealth v.

Gomolekoff, 910 A.2d 713 (Pa.Super. 2006), is misplaced and cites a number

of cases to the contrary. (See appellant’s brief at 8-12.)

      Upon review, we find that appellant’s ineffectiveness claim fails because

he failed to satisfy the first prong of the Pierce test; namely, that the

underlying legal claim was of arguable merit. See Simpson, 66 A.3d at 260.

In reaching this conclusion, we note that trial counsel testified at the

March 26, 2019 evidentiary hearing that staleness was a frivolous suppression

claim:

            Q.    [Trial counsel], did you consider whether or not
                  you should have filed a motion to suppress
                  based on what we say is stale information in the
                  warrant application?

            A.    I did but because, frankly, what I thought was
                  relevant and compelling case law of the fact that
                  in cases of child pornography the staleness rules
                  are much more relaxed and that the
                  Commonwealth had the ability to show that this
                  was the type of crime where a Defendant would
                  keep things around for a long period of time and
                  tend not to get rid of them. Unlike in, like,
                  narcotic cases where if you are selling drugs
                  they are going to be constantly selling them.

            Q.    Do you recall any specific cases that you, in fact,
                  relied on?

            A     Not at this time. At that time, I did research
                  and I know there are several Superior Court and
                  at least one or two Supreme Court cases dealing


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                    with this issue that -- especially given the
                    circumstances where a Defendant is likely to
                    keep things around the staleness rules are much
                    more relaxed.

             ....

             Q.     And based on your judgment you thought a
                    staleness motion would be meritless; is that
                    right?

             A.     Yes, that’s why I didn’t file it. I figured go with
                    the two strongest arguments we had and not
                    add something that I felt that was frivolous that
                    would distract the Court’s attention from the
                    main argument.

Notes of testimony, 3/26/19 at 4-5. We agree with trial counsel’s assessment.

        Appellant’s argument, while potentially relevant to many other types of

crime, is not applicable to an investigation into child pornography evidence.

Generally, it is well settled in this Commonwealth “that stale information

cannot provide probable cause in support of a warrant.” Commonwealth v.

Hoppert, 39 A.3d 358, 363 (Pa.Super. 2012) (citation omitted), appeal

denied, 57 A.3d 68 (Pa. 2012). In Gomolekoff, a panel of this court held

that:

             Age of the information supporting a warrant
             application is a factor in determining probable
             cause. . . . Age alone, however, does not
             determine staleness. The determination of probable
             cause is not merely an exercise in counting the days
             or even months between the facts relied on and the
             issuance of the warrant. Rather, we must also
             examine [1.] the nature of the crime and [2.] the
             type of evidence.




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Gomolekoff, 910 A.2d at 713 (citation and internal quotation marks omitted;

emphasis and numeration added).

      Gomolekoff involved the execution of a search warrant by police in

Kansas based on their discovery of child pornography in two emails from

November 2003, wherein Gomolekoff, a resident of Pennsylvania, was one of

the recipients. Id. at 712. That information was not forwarded to authorities

in Pennsylvania until June 2004, and in August 2004, police obtained a search

warrant for Gomolekoff’s home based on that information and subsequently

discovered child pornography on four of his computers. Id.

      Gomolekoff challenged the August 2004 warrant on staleness grounds,

but the trial court denied his suppression motion. Id. On appeal, a panel of

this court rejected Gomolekoff’s argument that the 9½-month gap between

the initial discovery of the child pornography and the execution of the search

warrant rendered the evidence of the child pornography stale, based on the

two aforementioned factors unique to child pornography cases. Id. at 713.

In reaching this conclusion, the Gomolekoff court reasoned that individuals

who   possess   child   pornography    “rarely,   if   ever,   dispose   of   child

pornography[]” and “will protect and retain child pornography for long periods

of time because it is illegal and difficult to obtain.”    Id. at 714 (citations

omitted).

      Similarly, in the instant matter, the 4- to 5-month gap between law

enforcement’s initial discovery of evidence that appellant possessed child



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pornography and the execution of the warrant at appellant’s residence did not

render the evidence in question stale. As recognized by the PCRA court, the

delay in executing the warrant in this case (4 to 5 months) was approximately

half of that involved in Gomolekoff (9½ months). (See PCRA court opinion,

5/8/19 at 4.4) Based on the foregoing, we conclude that appellant’s staleness

claim is devoid of arguable merit, and trial counsel cannot be found ineffective

for failing to pursue this meritless claim. See Ligons, 971 A.2d at 1146.

      Accordingly, we affirm the PCRA court’s May 8, 2019 order denying

appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/27/2020




4 The PCRA court’s opinion does not contain pagination; for the ease of our
discussion, we have assigned each page a corresponding number.


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