Com. v. Moses, S. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
SHAWN MOSES,
Appellant No. 1711 EDA 2018
Appeal from the PCRA Order Entered May 1, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003521-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 11, 2019
Appellant, Shawn Moses, appeals pro se from the post-conviction court’s
May 1, 2018 order dismissing his first petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
Following a jury trial in June of 2015, Appellant was convicted of carrying
a firearm without a license, 18 Pa.C.S. § 6106, and carrying a firearm in public
in Philadelphia, 18 Pa.C.S. § 6108.1 On December 4, 2015, the court
sentenced Appellant to an aggregate term of 3 to 6 years’ incarceration,
followed by 4 years’ probation. He filed a timely notice of appeal and, after
this Court affirmed his judgment of sentence, our Supreme Court denied his
subsequent petition for allowance of appeal. Commonwealth v. Moses, 159
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1 Appellant was acquitted of possession with intent to deliver narcotics, 35
P.S. § 780-113(a)(30).
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A.3d 590 (Pa. Super. 2016) (unpublished memorandum), appeal denied, 169
A.3d 560 (Pa. 2017).
On December 20, 2017, Appellant filed a timely, pro se PCRA petition.
Therein, he claimed, inter alia, that he was unlawfully arrested, and that his
trial counsel acted ineffectively by not filing a pretrial motion to suppress the
evidence seized during the search of his person incident to that illegal arrest.
PCRA counsel was appointed, but instead of filing an amended petition on
Appellant’s behalf, counsel filed a Turner/Finley2 ‘no-merit’ letter and a
petition to withdraw from representing Appellant. On March 29, 2018, the
PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s
petition without a hearing. Appellant filed a pro se response. However, on
May 1, 2018, the court issued an order dismissing his petition and granting
counsel’s petition to withdraw.
On May 24, 2018, Appellant filed a timely, pro se notice of appeal.3 The
court did not order him to file a Pa.R.A.P. 1925(b) concise statement of errors
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2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3 We recognize that Appellant’s pro se notice of appeal confusingly indicated
that he was appealing from his judgment of sentence, but also suggested that
he was appealing from the PCRA court’s order denying his petition. We agree
with the PCRA court that Appellant “was most likely attempting to appeal his
PCRA dismissal.” PCRA Court Opinion (PCO), 12/11/18, at 2 n.1. Because
Appellant’s notice of appeal was timely filed from that order, we have
jurisdiction over his appeal. See Commonwealth v. Williams, 106 A.3d
583, 587 (Pa. 2014) (“A timely notice of appeal triggers the jurisdiction of the
appellate court, notwithstanding whether the notice of appeal is otherwise
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complained of on appeal, but it issued a Rule 1925(a) opinion on December
11, 2018.
Herein, Appellant has filed two briefs, yet in neither one does he set
forth a Statement of the Questions Presented that comports with Pa.R.A.P.
2116(a). Notwithstanding, it is apparent that he is alleging that the PCRA
court erred in dismissing his petition because: (1) his arrest was illegal, as it
was unsupported by probable cause, and (2) his trial counsel acted
ineffectively by not filing a motion to suppress the evidence seized pursuant
to that arrest.
Our standard of review regarding an order denying post-conviction relief
under the PCRA is whether the determination of the court is supported by the
evidence of record and is free of legal error. Commonwealth v. Ragan, 923
A.2d 1169, 1170 (Pa. 2007). This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
record could support a contrary holding. Commonwealth v. Touw, 781 A.2d
1250, 1252 (Pa. Super. 2001).
Initially, Appellant’s first issue is waived, as he failed to raise it before
trial in a motion to suppress. See 42 Pa.C.S. § 9543(a)(3) (stating that, to
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defective.”). Moreover, we need not remand for Appellant to correct the
defects in his notice of appeal. See id. at 587-88 (“In the event of a defective
notice of appeal, [Pa.R.A.P.] 902 encourages, though it does not require,
appellate courts to remand the matter to the lower court so that the
procedural defect may be remedied.”). The PCRA court correctly presumed
that Appellant was appealing from the order dismissing his petition, and it
addressed the issues raised in his petition in its Pa.R.A.P. 1925(a) opinion.
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be eligible for PCRA relief, the petitioner must demonstrate “[t]hat the
allegation of error has not been previously litigated or waived”); 42 Pa.C.S. §
9544(b) (declaring that “an issue is waived if the petitioner could have raised
it but failed to do so before trial, at trial, during unitary review, on appeal or
in a prior state post[-]conviction proceeding”) (emphasis added).
Consequently, the PCRA court did not err in denying him relief on his first
suppression claim.
In Appellant’s second issue, he argues that his trial counsel acted
ineffectively by not filing a motion to suppress the evidence seized during his
ostensibly illegal arrest. Regarding ineffectiveness claims, our Supreme Court
has directed that the following standards apply:
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the “[i]neffective 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 effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel’s performance
was deficient and that such deficiency prejudiced him.”
[Commonwealth v.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,]
886 [(Pa. 2010)] (citing Strickland[ v. Washington, 466 U.S.
668, 104 S.Ct. 2052 (1984)]). In Pennsylvania, we have refined
the Strickland performance and prejudice test into a three-part
inquiry. See [Commonwealth v.] Pierce, [515 Pa. 153, 527
A.2d 973 (Pa. 1987)]. Thus, to prove counsel ineffective, the
petitioner must show that: (1) his underlying claim is of arguable
merit; (2) counsel had no reasonable basis for his action or
inaction; and (3) the petitioner suffered actual prejudice as a
result. Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291
(2010). “If a petitioner fails to prove any of these prongs, his
claim fails.” Commonwealth v. Simpson, [620] Pa. [60, 73],
66 A.3d 253, 260 (2013) (citation omitted). Generally, counsel’s
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assistance is deemed constitutionally effective if he chose a
particular course of conduct that had some reasonable basis
designed to effectuate his client’s interests. See Ali, supra.Where matters of strategy and tactics are concerned, “[a] finding
that a chosen strategy lacked a reasonable basis is not warranted
unless it can be concluded that an alternative not chosen offered
a potential for success substantially greater than the course
actually pursued.” Colavita, 606 Pa. at 21, 993 A.2d at 887
(quotation and quotation marks omitted). To demonstrate
prejudice, the petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different.” Commonwealth
v. King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
quotation marks, and citation omitted). “‘[A] reasonable
probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins, 598
Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466 U.S.
at 694…)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
Instantly, the PCRA court found that Appellant’s suppression claim
lacked arguable merit and, therefore, his trial counsel could not be deemed
ineffective for failing to file a suppression motion. See PCO at 8. In discussing
the underlying suppression issue, the court stated:
It is well established that a person may be detained without
probable cause to make an arrest if there is reasonable suspicion
that criminal activity is afoot. Terry v. Ohio, 392 S.Ct. 1868(1968). Reasonable suspicion exists where[,]
the officer is able to articulate specific observations which,
in conjunction with reasonable inferences derived from
those observations, led him reasonably to conclude, in light
of his experience, that criminal activity was afoot and that
the person he stopped was involved in that activity.
Therefore, the fundamental inquiry of a reviewing court
must be an objective one, namely, whether the facts
available to the officer at the moment of intrusion warrant
a man of reasonable caution in the belief that the action
taken was appropriate.
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Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005)
[(citation omitted)]. To assess if reasonable suspicion existed at
the time of the stop, the courts must look at the totality of the
circumstances. Commonwealth v. Zhahir, 751 A.2d 1153,
1156-57 (Pa. 2000). “[C]ourts must also afford due weight to the
specific, reasonable inferences drawn from the facts in light of the
officer’s experience and acknowledge that innocent facts, when
considered collectively, may permit the investigative detention.”
Commonwealth v. Clemens, 66 A.3d 373, 379 (Pa. Super.
2013) [(citation omitted)].
Furthermore, hand-to-hand transactions can be enough to
raise a reasonable suspicion where the transaction is in a high
crime area and the item passed is small. In Commonwealth v.
Daniels, 999 A.2d 590 … (Pa. Super. 2010), the Superior Court
found that “quick, hand-to-hand transactions of money for small
items through a car window in a crime-friendly stretch of
Philadelphia are, in the absence of noticeably larger items such as
soft pretzels, pies, roses, beverages or newspapers, commonly
known to often involve narcotics.” [Id. at 597 n.3 (citation
omitted)]. Although a hand-shake or fist bump alone is not
enough to raise a reasonable suspicion, where money is
exchanged and the item received is small and concealed, a
suspicion is raised as to the legality of the transaction. Thus, a
combination of innocent facts when [taken] together can warrant
further police investigation. Commonwealth v. Cook, 735 A.2d
673, 676 (Pa. 1999).
As a result of Pennsylvania’s heightened privacy
considerations, a police officer’s pursuit of a fleeing individual is a
seizure pursuant to Article 1, Section 8 of the Pennsylvania
Constitution. Id. at 675. Thus, an officer must have reasonable
suspicion to pursue a fleeing individual. However, the courts have
held that “unprovoked flight could be considered among the
relevant contextual considerations, since ‘nervous, evasive
behavior is a pertinent factor in determining reasonable suspicion’
and ‘[h]eadlong flight — wherever it occurs — is the consummate
act of evasion.’” In re D.M., 781 A.2d 1161, 1164 (Pa. 2001)
(citing Illinois v. Wardlow, 120 S.Ct. 673 (2000)). The Superior
Court of Pennsylvania has clarified that such flight must be after
either being confronted by police or recognizing their presence in
the area. Commonwealth v. Washington, 51 A.3d 895, 898
(Pa. Super. 2012).
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In order for a [d]efendant to challenge the seizure of
physical evidence, he has to demonstrate both a possessory
interest in the evidence and a legally cognizable expectation of
privacy in the area from which the evidence was seized.
Commonwealth v. Byrd, 987 A.2d 786, 790 (Pa. Super. 2009).
It is well[-]established that a defendant has no reasonable
expectation of privacy in voluntarily abandoned contraband. [Id.
(citation omitted)]. However, abandonment does not occur where
evidence is discarded as a result of unlawful police coercion or
action. Id. [at 791 (citation omitted).] If the initial seizure of a
person is tainted, the abandonment of any property on their
persons is a direct consequence of that illegality and will not be
considered voluntary. [Id. (citation omitted).]
In the case at bar, [Appellant] averred that his search and
seizure was illegal because there was no probable cause to arrest.
Additionally, [Appellant] averred that his detainment was not an
investigatory stop but rather a complete arrest. This is false.
[Appellant] was stopped pursuant to Terry when officers saw him
make a hand-to-hand exchange of money for a small unknown
object. At [Appellant’s] preliminary hearing, Officer Vaughn
testified that he exited his vehicle and initiated the stop, [and
Appellant] then attempted to flee. (N.T.[,] 3/19/2012, p. 19). A
brief struggle ensued after which police officers were able to
detain [Appellant]. Id. Once on the ground and in compliance,
[Appellant] tossed a glove he had on his person. Eight green-
tinted plastic bags fell out of the glove when it was tossed. Id.[Appellant] then voluntarily notified officers that he had a Glock
.9 millimeter gun on his person. This gun was then removed by
police. It was at this point that [Appellant] was placed in custody
and arrested for possession of the firearm and marijuana. Id. at
22. Following his arrest, [Appellant] attempted to flee police
custody [again,] and was pursued and eventually caught by
officers. At this point, he was rearrested.
At trial, Officer Soto, who first called in the flash information
with regard to the transaction, testified to the following:
Q: What about it made you think it was a narcotics sale?
A: It was [done] discretely. There was the money and, you
know, a brief conversation, then he handed him the money,
and in a closed fist over an open palm, he gave him what I
believed was narcotics. I couldn’t actually see the object….
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(N.T. 6/9/2015, p. 35). He testified that his experience and
training led him to believe that this transaction was a narcotics
sale. Id. at 34-[3]5. Additionally, at the time of the transaction,
Officer Soto was merely five to six feet away in an unmarked
vehicle. The transaction occurred directly in front of him. After
witnessing the transaction, Officer Soto called in the flash
information and requested back-up[,] since he had three females
in custody in his car. Officer Vaughn and Officer Nance arrived on
the scene shortly thereafter to make the stop. Officer Vaughn
testified at trial to the following:
Q: Can you tell us what happened when you approached?
A: I approached with Officer Nance. We verbally identified
ourselves as police officers. At that point [Appellant] and
Mr. Johnson panicked and attempted to --
MR. EGAN: Objection.
THE COURT: Sustained. Tell me what you saw, please.
THE WITNESS: Okay. They attempted to flee.
([Id. at] 60-[6]1).
Testimony from both the preliminary hearing and trial,
indicate that officers had reasonable suspicion to stop [Appellant].
Officer Soto witnessed money and a small object being exchanged
in a high crime area. His experience led him to believe that this
was most likely a narcotics transaction. Police Officers Vaughn
and Nance then arrived on the scene and attempted to stop
[Appellant], by announcing police presence, when [Appellant]
tried to flee and struggled with police. This[,] too[,] was evidence
that illegal activity was afoot. [Appellant] was never frisked[;]
rather, he was simply stopped for investigation and then
voluntarily abandoned the glove containing the illegal substance.
He also voluntarily informed officers that he had a gun on him.
The gun was removed for safety purposes. Pursuant to well[-]
established case-law, officers stopped [Appellant] legally after
having a reasonable suspicion that criminal activity was afoot.
Thus, the content abandoned by [Appellant] after this stop was
voluntarily discarded and was properly admitted at trial. As a
result, the trial court did not err in admitting the gun and drug
evidence at trial.
PCO at 3-7.
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After reviewing the record and the case law on which the PCRA court
relies, we conclude that it did not err in determining that Appellant’s
suppression claim lacks arguable merit and, therefore, his trial counsel did not
act ineffectively by not filing a motion to suppress. See Commonwealth v.
Rivera, 816 A.2d 282, 292 (Pa. Super. 2003) (“It is axiomatic that trial
counsel will not be considered ineffective for failing to pursue meritless
claims.”) (cleaned up).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/19
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