Com. v. Faison, N. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
NAFIS ANTUAN FAISON :
:
Appellant : No. 1423 MDA 2017
Appeal from the PCRA Order July 13, 2017
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000126-2014
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 03, 2018
Nafis Antuan Faison appeals from the order denying him relief under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541–46. Faison asserts
that the PCRA court erred in denying his claim that he was denied effective
assistance of counsel because his trial attorney did not file a pre-trial motion
to suppress. We affirm
The facts are as follows. In November 2013, the Lycoming County Court
of Common Pleas issued an order under Section 5773 of the Wiretapping and
Electronic Surveillance Control Act, 18 Pa.C.S.A. §§ 5701-5782, authorizing
the disclosure of tracking data on Faison’s cell phone number. See 18
Pa.C.S.A. § 5773. The court issued the order following an application
submitted by the Commonwealth, which included an affidavit of probable
cause written by then-Trooper Robert Lombardo of the Pennsylvania State
Police. (Trooper Lombardo was subsequently made a corporal of the State
______________________________
* Retired Senior Judge assigned to the Superior Court.
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Police). In the affidavit, Corporal Lombardo stated that a warrant existed for
Faison’s arrest on drug charges, and described that during the underlying
investigation, a confidential informant had made four controlled drug
purchases from Faison, whom his customers called “Mickey.” See Affidavit of
Probable Cause in Support of Application for the Disclosure of Mobile
Communication Tracking Information, 11/19/13, at 2. According to Corporal
Lombardo’s affidavit, attempts to locate Faison following the issuance of the
arrest warrant had been unsuccessful. The affidavit asserted that Faison could
be located using the data from a certain telephone number that a parolee had
provided to a probation and parole agent.
Following the issuance of the Order authorizing the disclosure of Faison’s
cellular data, Corporal Lombardo used the data to determine that Faison was
located at a particular residence in Williamsport. On the afternoon of
December 12, 2013, at the request of Corporal Lombardo, multiple law
enforcement agencies, including the state and local police, began surveilling
that residence in hopes of finding Faison. As trial testimony later established,
Faison was indeed at that location, in the second-floor apartment belonging
to his friend, Demetrius Simpson. Simpson had allowed Faison to stay in the
apartment overnight. Simpson’s nine-year-old son was also in the apartment.
Over the course of the evening, the police observed several people visit
the second-floor apartment and stay for only a short period of time. Trooper
Lombardo stopped one of these people, Joshua Colley, after Colley left the
apartment. Trooper Lombardo frisked Colley and found a small amount of
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illegal drugs, and arrested him. During the arrest, Colley told Corporal
Lombardo that he had seen Faison inside the apartment. Following the arrest,
Trooper Kenneth Fishel, who had been surveilling the residence, informed
Corporal Lombardo that he had spotted Faison standing outside the door to a
third-floor apartment.
Corporal Lombardo and multiple law enforcement officers returned to
the apartment building and ascended a staircase to the second floor. Corporal
Lombardo knocked on the door to the second-floor apartment. Faison jumped
out of a second-floor window and fled on foot, and the police entered and
secured the apartment. While the police were in a central room in the
apartment, they observed an un-zippered black backpack containing what
appeared to be bags of cocaine.
An officer caught Faison and found that he was carrying nearly $4,000
in cash and a small amount of illegal drugs. Simpson, who had answered the
door to the apartment after Corporal Lombardo knocked, was also arrested
and taken for questioning, but ultimately was not charged with any criminal
offenses.
Several officers stayed in the apartment while Trooper Fishel applied for
a search warrant. During this time, Trooper Lancer Thomas took Simpson’s
son, who was standing outside on the balcony and shivering, back inside the
apartment to find clothing. While doing so, Trooper Thomas also saw the un-
zippered backpack containing bags of cocaine. Trooper Fishel’s search warrant
was granted, and the police searched the apartment and recovered the black
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backpack, which contained over 500 grams of cocaine and a scale; a box in a
closet which contained rubber bands, small plastic bags, a stamp pad, and a
brown piece of paper with heroin residue on it; and a tan jacket with a bag of
cocaine in its right pocket.
Faison was charged with possession with intent to deliver a controlled
substance1 and related drug offenses. Faison did not file a pre-trial motion to
suppress any evidence at trial. At the conclusion of trial, a jury found Faison
guilty, and the trial court thereafter sentenced him to an aggregate term of
five to ten years’ incarceration.2 We affirmed Faison’s judgment of sentence,
and the Pennsylvania Supreme Court denied allowance of appeal on October
25, 2016.3
Faison filed the instant PCRA Petition pro se on December 1, 2016,
alleging that his trial counsel was ineffective for failing to file a motion to
suppress the evidence against him, and requesting an evidentiary hearing.
The PCRA court appointed counsel to represent Faison, and on May 10, 2017,
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1 35 P.S. § 780–113(a)(30).
2Faison had his right to direct appeal reinstated nunc pro tunc in November
2015 following his filing of a PCRA petition.
3 See Commonwealth v. Faison, 151 A.3d 1150 (Pa.Super.), appeal denied,
160 A.3d 756 (Pa. 2016). While Faison’s direct appeal was pending, Faison
filed a PCRA petition, which was dismissed as premature by the PCRA court.
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counsel filed a Motion to Withdraw and a Tuner/Finley4 “no merit” letter. On
May 15, 2017, Faison filed a pro se Supplemental PCRA Petition.5
On June 22, 2017, in an Opinion and Order explaining its reasoning, the
PCRA court granted counsel leave to withdraw and gave Faison notice of its
intentions to dismiss Faison’s Petition in 20 days pursuant to Rule 907 of the
Rules of Criminal Procedure. Faison did not respond to the notice, and the
court denied his Petition on July 13, 2017.
Faison filed a timely notice of appeal, and raises the following issues:
[1.] Trial counsel had no reasonable basis for his inactions[.]
[2.] Trial counsel was constitutionally deficient for failing to file [a]
motion to suppress evidence obtained in violation of [Faison’s]
constitutional right where [the] affidavit of probable cause to
obtain [a] pen register and trap and trace device was insufficient
as a matter of law and all evidence obtained as a result was
illegally obtained.
[3.] Trial counsel was constitutionally defective for failing to
investigate and file a motion to suppress evidence seized in [the]
second floor apartment as it was procured as a result of [an] illegal
search without search warrant.
[4.] Trial counsel was constitutionally deficient for failing to
investigate/file [a] motion to suppress [the] affidavit of probable
cause to [search,] based on false averments contained within.
Faison’s Br. at 4. The Commonwealth did not submit a brief.
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4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
5We note that Faison did not obtain leave from the PCRA court to amend his
petition. See Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015).
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“[I]n reviewing the propriety of an order granting or denying PCRA relief,
this Court is limited to ascertaining whether the evidence supports the
determination of the PCRA court and whether the ruling is free of legal error.”
Commonwealth v. Andrews, 158 A.3d 1260, 1262-63 (Pa.Super. 2017). A
PCRA petitioner is entitled to an evidentiary hearing where the petition raises
an issue of material fact, which, if resolved in the petitioner’s favor, would
justify relief. Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).
A petitioner is eligible for relief under the PCRA when he pleads and
proves by a preponderance of the evidence that his conviction resulted from
ineffective assistance of counsel. See 42 Pa.C.S.A. § 9543(a)(2)(ii). A PCRA
petitioner will only prevail on a claim that trial counsel was ineffective through
pleading and proving each of the following: “(1) the underlying legal claim is
of arguable merit; (2) counsel’s action or inaction lacked any objectively
reasonable basis designed to effectuate his client’s interest; and (3) prejudice,
to the effect that there was a reasonable probability of a different outcome if
not for counsel’s error.” Commonwealth v. Grove, 170 A.3d 1127, 1138
(Pa.Super. 2017) (quoting Commonwealth v. Andrews, 158 A.3d 1260,
1263 (Pa.Super. 2017). A failure to plead or prove any prong will defeat an
ineffectiveness claim. Id. at 1138.
I. Waiver
The PCRA court first concluded that Faison waived his right to PCRA
relief under 42 Pa.C.S.A. § 9543(a)(3). See PCRA Court Opinion, filed October
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20, 2017, at 2. In its Rule 1925(a) opinion, the court explained that the claims
were waived because “Faison himself directed his attorney not to pursue pre-
trial motions and instead focus on trying to obtain relief pursuant to Rule 600.”
Id.6
The PCRA requires that for a petitioner to be eligible for relief, he or she
must prove that “the allegation of error has not been previously litigated or
waived,” 42 Pa.C.S.A. § 9543(a)(3), and states that, “an issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, . . . on
appeal[,] or in a prior state postconviction proceeding.” Id. at § 9544(b). An
assertion of ineffective assistance of counsel overcomes the bar to waived
issues. Commonwealth v. Lambert, 765 A.2d 306, 324 (Pa.Super. 2000).
The PCRA court is correct in its conclusion that the unfiled suppression
motion has been waived, but the distinction the PCRA court failed to recognize
is that Faison does not directly advocate for the suppression of evidence, but
argues that trial counsel was ineffective in relation to pursuing a motion to
suppress. Faison has not waived his ineffectiveness claims under Section
9543(a)(3), as he was unable to raise these claims prior to the instant
collateral petition. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.
2013) (holding that aside from certain exceptions not applicable here, claims
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6 Rule 600(B) provides that a criminal defendant is not to be held in pre-trial
incarceration in excess of 180 days, and Rule 600(A) provides that the
Commonwealth shall commence trial within 365 days. See Pa.R.Crim.P.
600(A), (B).
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of ineffective assistance of counsel are to be deferred until collateral review).
We therefore address Faison’s ineffectiveness claims.
II. The Cell Phone Data Authorization
Faison argues that his trial counsel was ineffective for failing to file a
motion to suppress because the affidavit that supported the authorization of
the disclosure of his cell phone data was insufficient to establish probable
cause. According to Faison, the affidavit “contained vague and conclusory
averments” and was based on double hearsay, because the affiant was not
privy to the conversation between the parole agent and the parolee, there was
no information regarding the reliability of the parolee, and there was no basis
given for the parolee’s knowledge that the phone number belonged to Faison.
Faison’s Br. at 19. Faison argues that because the warrant for the tracking
information lacked probable cause, and Faison was arrested using the tracking
information, the evidence recovered at the time of Faison’s arrest was
tainted.7
The standard for determining whether probable cause to support the
issuance of wiretaps is the same as that used to determine probable cause for
search warrants. See Commonwealth v. Iannelli, 634 A.2d 1120, 1127 (Pa.
1993) (citing Commonwealth v. Doty, 498 A.2d 870, 881-82 (Pa.Super.
1985)). Hearsay alone may form the basis for an affidavit of probable cause
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7 Faison does not argue that the underlying warrant for his arrest lacked
probable cause.
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“as long as the issuing authority has been provided with sufficient information
to make a ‘neutral’ and ‘detached’ decision about whether” probable cause
existed. Commonwealth v. Huntington, 924 A.2d 1252, 1255 (Pa.Super.
2007). The issuing authority is to review the assertions in the affidavit,
“including the ‘veracity’ and ‘basis of knowledge’ of persons suppling hearsay
information,” and “make a practical, common-sense decision” as to whether
probable cause exists under the totality of the circumstances.
Commonwealth v. Melilli, 555 A.2d 1254, 1261 (Pa. 1989) (quoting Illinois
v. Gates, 462 U.S. 213, 238 (1983)).
“In assessing an informant's reliability, a presumption exists that the
information is trustworthy when it has been provided by an identified witness.”
Huntington, 924 A.2d at 1255; see, e.g., Commonwealth v. Klimkowicz,
479 A.2d 1086, 1088 (Pa.Super. 1984) (holding that warrant based on an
affidavit containing double hearsay was valid where the magistrate found the
initial source of information to be reliable). On appeal, we need only to
ascertain that there was a “substantial basis” for the issuing authority to
conclude that probable cause existed. Melilli, 555 A.2d at 1261 (quoting
Gates, 462 U.S. at 238-39).
Here, the PCRA court determined the affidavit supporting the order for
cell phone tracking data supplied sufficient probable cause to believe that
Faison could be located using information from the telephone number provided
in the affidavit. The court came to this conclusion because “[l]aw enforcement
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obtained reliable information from a known parolee” who was “specifically
identified and known to law enforcement, [and] who could be held accountable
for false information provided to law enforcement.” PCRA Ct. Op. at 3-5
(emphasis in original). To these observations, we add that the affidavit also
provided the name of the parole agent, the date and time of the interview
between the parole agent and parolee, and stated that the parolee told the
parole agent that Faison was “in the Lycoming area and using the street name
of [‘]Mike[’],” which is similar to the name “Mickey” that Faison used during
the controlled drug buys in the underlying investigation leading to the issuance
of the arrest warrant. See Affidavit of Probable Cause in Support of Application
for the Disclosure of Mobile Communication Tracking Information at 2.
We therefore hold that based on the averments in the Affidavit there
was a substantial basis for the issuing court to conclude that probable cause
existed to support the authorization of the disclosure of the cell phone data.
A motion to suppress on this basis would therefore have been lacking in merit,
and so we affirm the PCRA court’s conclusion that Faison’s trial attorney was
not ineffective for failing to file one.
III. The Entry and Protective Sweep
Faison argues that his trial counsel was ineffective for failing to file a
motion to suppress on the basis that the police illegally entered and searched
Simpson’s apartment before they obtained a search warrant. Faison first
argues on appeal that the PCRA court erred in concluding that Colley
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purchased drugs at the apartment, which was one of the reasons that the
PCRA court found justified the entry of the officers. See PCRA Ct. Op. and
Order, filed 6/22/17, at 6 (stating that law enforcement’s entry was legal
because, in part, “a witness” had just purchased drugs at the apartment).
Faison did not raise this issue with the PCRA court prior to his appeal,
either in his PCRA Petition or in response to the court’s Opinion and Order
giving notice of its intent to dismiss the Petition, and thus it is waived. See
Pa.R.A.P. 302(a) (providing that issues cannot be raised for the first time on
appeal). Regardless, the level of belief that law enforcement possessed
regarding whether Colley had purchased drugs in the apartment at the time
of their initial entry is of no moment. The police did not claim to have entered
the apartment based on probable cause evidence of drug dealing, but based
on their belief that Faison, for whom they had an arrest warrant, was located
in the apartment. See N.T. at 97 (Trooper Lombardo testifying that the police
entered the apartment because they knew that Faison was inside).
Next, Faison contends that the police entered the apartment after they
saw Faison leave, and that they had no grounds to do so without exigent
circumstances not of their own creation and articulable circumstances to
support a protective sweep. Faison’s Br. at 27.
Police do not violate the privacy rights of the subject of an arrest warrant
when they enter the home of a third party, without a search warrant related
to that address, in order to execute the arrest, provided they have a
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reasonable belief that the subject of the arrest warrant is inside or is living
there. See Commonwealth v. Muniz, 5 A.3d 345, 350-52 (Pa.Super. 2010)
(relying on Commonwealth v. Stanley, 446 A.2d 583 (Pa. 1982) and
Commonwealth v. Conception, 657 A.2d 1298 (Pa.Super. 1995)). When
executing an arrest, police may perform a “protective sweep” of their location,
without first obtaining a search warrant, to ensure the absence of any
individuals that may pose a threat to their safety, so long as the officers
possess “a reasonable belief based on specific and articulable facts that the
area to be swept harbors an individual posing a danger to those on the arrest
scene.” Buie v. Maryland, 494 U.S. 325, 337 (1990).
Faison argues that Steagald v. United States, 451 U.S. 204 (1981),
would have controlled his suppression issue. In Steagald, the United States
Supreme Court held that the police cannot execute an arrest warrant by
entering the home of a third party without a search warrant. Id. at 216.
However, in Steagald, the third party homeowners, the defendants in that
case, raised the issue. Id. at 212. While Steagald controls in that situation,
when the issue of privacy rights is instead raised by the subject of an arrest
warrant who was arrested in the home of a third party, as in the instant case,
the same protections do not apply. See Commonwealth v. Romero, 183
A.3d 364, 379 n.6 (Pa. 2018) (differentiating between cases in which the issue
of entry without a search warrant was raised by the subject of the arrest
warrant or the third-party homeowners, and stating that Steagald controls in
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the latter scenario); Muniz, 5 A.3d at 350-52; Commonwealth v. Martin,
620 A.2d 1194, 1196 (Pa.Super. 1993).
Here, the PCRA court noted that the police had identified that Faison
was inside the apartment, and “when” Simpson opened the door for the police,
“a runner” jumped out of a second floor window. The PCRA court concluded
that the police “had good reason to secure the apartment” at that point
because they “would be uncertain as to who was at the apartment, and not
all of law enforcement would immediately know whether the fugitive was the
runner or not.” PCRA Ct. Op. at 5.
The record evidence supports the conclusion that at the time they
approached the apartment, the police reasonably believed that Faison was
inside. The cell data had led them to that location, Colley told Trooper
Lombardo that Faison was in the second floor apartment, and Trooper Fishel
saw Faison standing outside a door of the apartment building.
Moreover, the evidence demonstrates that the police reasonably
believed that there were multiple people inside the apartment and that the
police entered at approximately the same time “a runner” fled through a
window on the opposite side of the building. Nothing suggests that the police
knew that the “runner” was Faison. Corporal Lombardo testified that after he
knocked on the apartment door and announced that he was a police officer,
one of the other officers stationed around the building “said out loud that he
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observed somebody else in the residence.” Id. at 92-93, 96-97.8 Simpson
opened the door a few minutes later. Id. at 96-97. While Corporal Lombardo
was at the door speaking with Simpson, he “heard a loud bang-like crash
noise,” toward the front of the house, and “the next thing [he knew was that]
someone came over the radio saying an individual was fleeing.” Id. at 93, 97-
98. Corporal Lombardo and other officers then entered the residence. Id. at
98. Trooper Fishel similarly testified “brief chaos erupted” when Faison jumped
out of the window and that half of the officers descended the stairs to chase
him. Id. at 72-73.
Because the police possessed a reasonable belief that Faison was
located in the apartment, they were permitted to enter in order to execute the
arrest warrant and conduct a protective sweep for other persons. Faison’s
argument that the police should have aborted their plans to enter when some
officers observed a person flee the apartment is meritless, as the two events
occurred simultaneously and it was unclear to the entering officers that it was
Faison who had, in fact, fled.
Faison next argues that Simpson’s trial testimony established that the
police “searched” the house immediately upon entry, prior to the issuance of
the search warrant.
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8 Because the observation of the other officer was hearsay, it was not admitted
for its truth. See N.T. at 93. Still, we find the observation relevant insofar as
it relates to the beliefs the officers.
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A protective sweep “is for persons” and “cannot be lengthy or unduly
disruptive.” Commonwealth v. Crouse, 729 A.2d 588, 598 (Pa.Super.
1999). “[P]olice officers may make cursory visual inspections of spaces
immediately adjacent to the arrest scene, which could conceal an assailant,”
and, if articulable facts exist which justify an officer’s fear for the safety of
himself and others, the officer can also search for attackers further from the
place of arrest. Commonwealth v. Taylor, 771 A.2d 1261, 1267 (Pa. 2001).
Here, the PCRA court stated that the police “secured” the apartment at
the time of their entry. PCRA Ct. Op. at 5. The testimony of law enforcement
officers consistently referred to the initial “search” in the same terms as a
protective sweep. Trooper Thomas testified that after Faison was arrested, he
assisted other law enforcement officers in “securing” the apartment. Id. at
104. Corporal Lombardo testified that after the officers entered the residence,
they “cleared the residence for officer safety.” Id. at 93, 98. Trooper Fishel
did not testify regarding the initial sweep of the apartment, but his affidavit
says the officers “secured” the apartment and occupants. Affidavit at 2. In
contrast, Trooper Thomas’s testimony regarding the full search, after the
search warrant was issued, described the process of drawing a diagram of the
apartment and numbering each room in order to track recovered evidence.
See N.T. at 114-16.
Faison has offered no facts to contradict the PCRA court’s conclusion
that the officers’ performed a protective sweep, rather than a full search, at
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the time of Faison’s arrest. While Simpson testified that the officers “searched”
the home after their entry, when he was detained in the kitchen area,
Simpson’s testimony did not otherwise indicate that the police exceeded the
bounds permitted by a protective sweep for dangerous persons. See N.T. at
36. Rather, the testimony indicates that Simpson used the term “search” in
its lay meaning, which encompasses the type of search deemed by
Pennsylvania law to be a protective sweep permissible in conjunction with an
arrest.
Finally, Faison asserts that there was no legal basis for Trooper Thomas’
to re-enter and “search” the apartment when he helped gather clothing for
Simpson’s son. Faison did not argue in his PCRA Petition that Trooper
Thomas’s re-entry was illegal, and thus, this issue is waived. Pa.R.A.P. 302(a).
Faison has presented no successful arguments for why a motion to
suppress the evidence based on the officers’ initial entry and sweep of the
apartment would have been meritorious, and thus we affirm the PCRA court’s
conclusion that Faison’s trial counsel was not ineffective for failing to pursue
one.
IV. The Search Warrant
Faison’s final argument is that his trial counsel was ineffective for failing
to file a motion to suppress because the affidavit of probable cause supporting
the search warrant contained false statements. Specifically, Faison complains
that the affidavit is false in stating that when Faison ran from the residence,
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members of law enforcement “entered the second floor apartment and
secured the apartment and occupants,” and that “multiple cellular telephones
were observed lying in different locations of the apartment along with a large
amount of suspected cocaine in an unzipped backpack lying on the couch.”
Faison’s Br. at 32 (quoting Affidavit).
The PCRA court found that Faison’s claim that the affidavit of probable
cause supporting the search warrant contained false averments was without
merit because Faison failed to establish any significant or material
misstatements in the affidavit. Id. PCRA Ct. Op. at 6. Our review confirms the
PCRA court’s assessment. Faison argues that “Simpson’s trial testimony states
the police conducted a search. This testimony is corroborated by other law
enforcement officials who testified that they indeed performed a protective
sweep.” Faison’s Br. at 32. As explained above, the police were permitted to
conduct a protective sweep of Simpson’s apartment, and were not obligated
to ignore the contraband they saw at that time.
As Faison has not indicated in what way any material statements in the
affidavit supporting the search warrant were false, we affirm the PCRA court’s
conclusion that his trial counsel was not ineffective for failing to file a
suppression motion on those grounds.
Because Faison has failed to establish that a motion to suppress would
have had merit, we need not consider whether trial counsel had a reasonable
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basis for failing to file one. Grove, 170 A.3d at 1138. We therefore affirm the
order of the PCRA court denying relief.
Order affirmed.
Judge Bowes joins the Memorandum.
Judge Strassburger files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/03/2018
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