Com. v. Martinez, J. ( 2019 )

J-S41039-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JUAN RAMON MARTINEZ, :
:
Appellant : No. 167 MDA 2019
Appeal from the PCRA Order Entered December 27, 2018
in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004881-2015
BEFORE: LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 13, 2019
Juan Ramon Martinez (Appellant) appeals from the December 27, 2018
order dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.
The PCRA court provided the following background.
[Appellant] was charged[, following a traffic stop and subsequent
search of his residence,] with possession with intent to distribute
a noncontrolled substance [(synthetic marijuana)], [possession
with intent to deliver a controlled substance (cocaine)],
possession of a small amount of marijuana, and possession of
drug paraphernalia. On November 18, 2015, Appellant, through
his first trial counsel, Jacob Gurwitz, Esq., filed an omnibus pre-
trial motion. On May 12, 2016, th[e trial] court held a hearing
addressing the motion and on May 19, 2016, [] denied
Appellant’s motion. On July 25, 2016, Appellant through his
counsel, filed a motion to reconsider Appellant’s amended
omnibus pre-trial motion. On July 26, 2016, upon motion, th[e
trial] court granted withdrawal of Attorney Gurwitz, and James
Polyak, Esq.[,] entered his appearance as Appellant’s counsel.
*Retired Senior Judge assigned to the Superior Court.
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On August 1, 2016, th[e trial] court denied the motion to
reconsider Appellant’s amended omnibus pre-trial motion.
On September 30, 2016, Appellant, through [Attorney
Polyak], filed a motion for enlargement of time to file [an]
omnibus pre-trial motion and on October 3, 2016, th[e trial]
court granted the motion. On October 17, 2016, Appellant,
through counsel, filed a timely omnibus pre-trial motion[,
challenging the initial stop of the vehicle. Specifically, Appellant
argued that the traffic stop was unlawful because it was based
upon failing to use a turn signal to change lanes, which Appellant
argued was not a violation of the Motor Vehicle Code. Therefore,
he sought suppression of all evidence seized from the vehicle,
Appellant’s person, and Appellant’s home as fruit of the
poisonous tree.] On November 2, 2016, after [a] hearing [was]
held, th[e trial] court ordered both counsel[] to file briefs. Both
counsel[] timely filed briefs and on February 10, 2017, th[e trial]
court denied Appellant’s omnibus pre-trial motion.
On November 14, 2017, upon motion, th[e trial] court
granted withdrawal of Attorney Polyak, and Eric Winter, Esq.[,]
entered his appearance as Appellant’s counsel. On December
14, 2017, Appellant was found guilty of possession with intent to
deliver a controlled substance [(cocaine)], possession of a small
amount of marijuana, and possession of drug paraphernalia,
after a bench trial. On January 31, 2018, th[e trial] court
sentenced [] Appellant to an aggregate term of [9 to 23 months]
of incarceration, 4 years of probation, and [a] $500 fine.
1925(a) Opinion, 2/28/2019, at 1 (unnumbered; unnecessary capitalization
omitted).
On July 17, 2018, Appellant, through counsel, timely filed a PCRA
petition, alleging ineffective assistance of counsel for Attorney Polyak’s
failure to include additional grounds for suppression in his pretrial motion.1
1 Appellant also alleged Attorney Gurwitz provided ineffective assistance of
counsel for failing to file a sufficiently detailed pretrial motion. However,
(Footnote Continued Next Page)
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PCRA Petition, 7/14/2018, at ¶¶ 46-48. Specifically, Appellant alleged that
Attorney Polyak should have sought suppression because (1) the officers
could not have formed reasonable suspicion or probable cause to search the
vehicle based on the smell of synthetic marijuana, (2) even if they could,
because synthetic marijuana is not criminalized under Pennsylvania law,
they lacked probable cause to search the vehicle, and (3) the search of the
residence and backpack were done without the consent of Appellant, the
owner of the residence and backpack. Id. at ¶¶ 24-28, 33, 37-40.
On October 11, 2018, a PCRA hearing was held. At the hearing,
Attorney Polyak testified that he did not raise a challenge to whether the
officers could identify the smell of synthetic marijuana in the motion to
suppress because he did not think it was “a valid issue appropriate for
pretrial relief.” N.T., 10/11/2018, at 8. For the same reason, Attorney
Polyak did not argue in the suppression motion that possession of the
specific type of synthetic marijuana here, while illegal under federal law, was
not a violation of any particular Pennsylvania statute at that time. Id. at 9.
As an additional reason, Attorney Polyak noted that the driver of the vehicle,
Pedro Rodriguez, told the officers, prior to the search of the vehicle, that
_______________________
(Footnote Continued)
Appellant abandoned this claim at the PCRA hearing, stating that “to the
degree there was any error on [Attorney Gurwitz’s] part, [it] was cured by
the [trial c]ourt giving [Attorney] Polyak the opportunity to file a
supplemental motion. Accordingly, essentially anything that [Attorney]
Gurwitz did is moot[.]” N.T., 10/11/2018, at 4.
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Appellant’s bag contained synthetic marijuana. Id. at 14-15. Finally,
Attorney Polyak testified that he did not raise a challenge to the search of
the house or backpack because the discovery indicated that Yashira
Rodriguez lived at the house and had authority to consent to the search, and
he had discussed this with Appellant. Id. at 10-12. Attorney Polyak did not
challenge specifically the search of the backpack, which contained cocaine
and drug paraphernalia, because it was recovered from a common room, the
kitchen. Id. at 18-19. Instead, he testified that he raised the only issues he
deemed appropriate and eligible for pretrial relief. Id. at 20.
The officers who conducted the traffic stop also testified at the PCRA
hearing. The officers testified that they smelled synthetic marijuana
emanating from inside the vehicle as soon as Appellant opened his window.
The officers testified they were familiar with the distinctive smell of synthetic
marijuana from their experience because synthetic marijuana accounts for
approximately 80% of drug arrests in Reading, and the officers encounter it
“on an almost daily basis.” Id. at 23-24, 27-28, 32, 34.
Additionally, the criminal investigator who conducted the search of the
residence testified. He testified that he was under the impression that
Appellant lived at the apartment with his girlfriend, Yashira, and the two
were allowing Pedro, Yashira’s brother, to stay as a guest at the apartment
with his girlfriend, Carmen Morales. Yashira, Pedro, and Carmen signed
consent forms to search the apartment. Id. at 41-42.
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In his testimony, Appellant confirmed that Yashira was his girlfriend,
who had been living at the apartment with him for approximately nine
months and helped to pay the apartment’s bills, and that Pedro and Carmen
were staying there as guests. Id. at 52-54. Appellant also testified that
synthetic marijuana has a distinctive smell, though he qualified it as “weak.”
Id. at 51, 56. Finally, Appellant testified that Attorney Polyak filed the
suppression motion without speaking to him beforehand. Id. at 55-56.
Following the hearing, the PCRA court permitted both Appellant and
the Commonwealth to file briefs, which they did. On December 6, 2018, the
PCRA court issued notice of its intent to dismiss Appellant’s PCRA petition
pursuant to Pa.R.Crim.P. 907.2 Appellant timely filed a response, and on
December 27, 2018, the PCRA court dismissed Appellant’s PCRA petition.
This timely-filed notice of appeal followed.3 On appeal, Appellant
claims that the PCRA court erred in dismissing his PCRA petition. See
Appellant’s Brief at 4. We begin with our standard of review.
This Court analyzes PCRA appeals in the light most
favorable to the prevailing party at the PCRA level. Our review
is limited to the findings of the PCRA court and the evidence of
2
Rule 907 only applies to dismissal of claims without a hearing; thus, such
notice was unnecessary here as the PCRA court granted a hearing on all of
Appellant’s claims.
3 Appellant complied with Pa.R.A.P. 1925(b). In its Rule 1925(a) opinion,
the PCRA court referred this Court to its December 6, 2018 notice of intent
to dismiss for the reasons relied upon in dismissing Appellant’s PCRA
petition. 1925(a) Opinion, 2/28/2019, at 3 (unnumbered).
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record and we do not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error.
Similarly, we grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference
to its legal conclusions. Where the petitioner raises questions of
law, our standard of review is de novo and our scope of review is
plenary. Finally, we may affirm a PCRA court’s decision on any
grounds if the record supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).
“Counsel is presumed to be effective, and the petitioner bears the
burden of proving to the contrary.” Commonwealth v. Brown, 196 A.3d
130, 150 (Pa. 2018). “To establish ineffectiveness of counsel, a PCRA
petitioner must show the underlying claim has arguable merit, counsel’s
actions lacked any reasonable basis, and counsel’s actions prejudiced the
petitioner.” Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super.
2013) (citations omitted). “A failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim of ineffectiveness.”
Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).
We first address Appellant’s claim that counsel should have argued
that the smell of synthetic marijuana could not support probable cause to
search the vehicle.
[I]n this Commonwealth, the law governing warrantless searches
of motor vehicles is coextensive with federal law under the
Fourth Amendment. The prerequisite for a warrantless search of
a motor vehicle is probable cause to search; no exigency beyond
the inherent mobility of a motor vehicle is required. The
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consistent and firm requirement for probable cause is a strong
and sufficient safeguard against illegal searches of motor
vehicles, whose inherent mobility and the endless factual
circumstances that such mobility engenders constitute a per
se exigency allowing police officers to make the determination of
probable cause in the first instance in the field.
Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014) (Opinion
Announcing the Judgment of the Court).
The level of probable cause necessary for warrantless searches
of automobiles is the same as that required to obtain a search
warrant. The well-established standard for evaluating whether
probable cause exists is the “totality of the circumstances” test.
This test allows for a flexible, common-sense approach to all
circumstances presented. Probable cause typically exists where
the facts and circumstances within the officer’s knowledge are
sufficient to warrant a person of reasonable caution in the belief
that an offense has been or is being committed. The evidence
required to establish probable cause for a warrantless search
must be more than a mere suspicion or a good faith belief on the
part of the police officer.
Commonwealth v. Runyan, 160 A.3d 831, 837 (Pa. Super. 2017) (quoting
Commonwealth v. Lechner, 685 A.2d 1014, 1016 (Pa. Super. 1996)
(internal citations omitted)).
In dismissing this claim, the PCRA court found the underlying claim to
be without merit. As discussed supra, the officers testified that they could
smell the distinctive odor of synthetic marijuana emanating from inside the
vehicle as soon as Appellant opened the window. The PCRA court credited
the testimony of the officers that they were familiar with this smell based on
their extensive experience with synthetic marijuana in Reading. In fact,
even Appellant acknowledged at the PCRA hearing that synthetic marijuana
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has a distinctive smell. Thus, we conclude the PCRA court’s factual
determination that the officers could identify synthetic marijuana by smell to
be supported by the record. Additionally, the driver of the vehicle, Pedro,
told the officers that the bag at Appellant’s feet contained synthetic
marijuana. As such, the officers had probable cause to search the vehicle.
See Commonwealth v. Gelineau, 696 A.2d 188, 192-94 (Pa. Super.
1997) (holding there was sufficient probable cause to search vehicle without
a warrant where officer smelled raw marijuana, but ultimately determining,
pre-Gary, that search was unreasonable because failed to establish exigent
circumstances). Because the underlying claim lacked merit, the PCRA court
did not err in concluding counsel was not ineffective for failing to raise this
issue in a suppression motion.
Next, we consider Appellant’s claim that counsel should have sought
suppression on the basis that the specific type of synthetic marijuana
Appellant possessed, AB-PINACA, was not prohibited by Pennsylvania statute
at the time of the search.
We reiterate that probable cause “exists where the facts and
circumstances within the officer’s knowledge are sufficient to warrant a
person of reasonable caution in the belief that an offense has been or is
being committed.” Runyan, supra. In dismissing this claim, the PCRA
court noted that, at the time of the search, possession of synthetic
marijuana was illegal under federal law, and possession of certain types of
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synthetic marijuana was also prohibited under Pennsylvania law. Notice of
Intention to Dismiss, 12/6/2018, at 5-6. Therefore, the PCRA court
concluded that when the officers “detected the smell of synthetic marijuana
from the vehicle, it was rational for the officers to believe that the vehicle
contained contraband [and] the issue of whether AB-PINACA was illegal does
not affect the validity of the vehicle search[.]” Id. at 6. We agree.
In this case, the officers smelled synthetic marijuana and were told by
the driver that there was a bag containing synthetic marijuana in the car.
As such, the officers had sufficient knowledge “to warrant a person of
reasonable caution in the belief that an offense has been or [wa]s being
committed[,]” namely, the possession of synthetic marijuana. Runyan,
supra. That the specific type of synthetic marijuana recovered ultimately
was not a controlled substance under Pennsylvania statute at that time is of
no moment. The totality of the circumstances warranted a reasonable
person to believe that a crime, possession of synthetic marijuana, was being
committed. The officers had no way of knowing what specific variety of
synthetic marijuana was present until it was tested. In essence, the totality
of the circumstances did not indicate that the particular type of synthetic
marijuana Appellant possessed was anything other than a controlled
substance under federal and Pennsylvania law. Accordingly, the underlying
claim is without merit, and the PCRA court did not err in concluding that
counsel was not ineffective for failing to raise this suppression claim.
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Finally, we address Appellant’s contention that counsel should have
challenged the search of the residence and backpack because, while three
individuals did consent, Appellant, the owner of the residence and backpack,
did not. Appellant’s Brief at 24.
In determining whether another individual had authority to consent to
the search of the residence and backpack, we consider the doctrines of
common authority and apparent authority. “The United States Supreme
Court has held that a third party has actual authority to consent to
a search if he/she ‘possesses common authority over or other sufficient
relationship to the premises or effects sought to be inspected.’”
Commonwealth v. Basking, 970 A.2d 1181, 1188 (Pa. Super. 2009)
(quoting United States v. Matlock, 415 U.S. 164, 171 (1974)). “This
Court has held that the concept of common authority is based on mutual use
of the property rather than a mere property interest.” Id. (citation and
quotation marks omitted).
Regarding apparent authority,
[i]n Commonwealth v. Blair, [] 575 A.2d 593, 598 ([Pa.
Super. ]1990), this Court discussed the standard to be applied in
determining whether a police officer reasonably believed that a
person possessed apparent authority to consent:
[W]e are not allowing carte blanche consent entries
into residences with the police officer being able to
ratify his entry at a later date suppression hearing by
merely stating that he was mistaken as to the actual
authority of the consenting party. We hold that the
police officer’s reasonable mistake must be judged
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from an objective standard based on the totality of
the circumstances. Although the police officer’s state
of mind is one factor to be considered in determining
the reasonability of the mistake, it is not the only
factor. Moreover, the police officer’s mistake must be
reasonable. In ambiguous situations, those situations
which would cause a reasonable person to question
the consenting party’s actual authority or if
the consenting party’s assertions of authority appear
unreasonable, a police officer should make further
inquiries to determine the status of
the consenting party. Reliance on a third party’s bald
assertion in such situations could subject
any search to the remedy of the exclusionary rule.
Id. (footnote omitted).
Basking, 970 A.2d at 1190-91.
Here, Yashira had actual authority to consent to the search of the
house under the common authority doctrine as she and Appellant mutually
used the property. Additionally, Yashira had common and apparent
authority to consent to the search of the backpack. It was located in the
kitchen, a common area of the home, which she mutually used with
Appellant. There was no indication that the backpack belonged to Appellant.
In fact, Yashira told the investigator that the backpack belonged to her.
N.T., 10/11/2018, at 43, 46. Based on the totality of the circumstances, it
was entirely reasonable for the investigator to believe that Yashira had
authority to consent to the search of the backpack. As such, the underlying
claim is without merit, and the PCRA court did not err in dismissing this
ineffective-assistance-of-counsel claim.
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Based on the foregoing, we conclude that the PCRA court did not err in
dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2019
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