Com. v. Allen, L. ( 2014 )

J-S31024-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LAMAR ALLEN, :
:
Appellant : No. 2299 EDA 2013
Appeal from the PCRA Order Entered August 5, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0010365-2009.
BEFORE: BOWES, SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 29, 2014
Appellant, Lamar Allen, appeals from the order entered on August 5,
2013, that denied his petition filed pursuant to the Post Conviction Relief Act
-9546. We affirm.
The PCRA court set forth the relevant facts of this case as follows:
The evidence presented at the suppression hearing is
summarized as follows. On June 27, 2009, between 2:30 and
3:00 a.m., Officer Davis of the Philadelphia Police Department
responded to a call of a robbery near 17th and Pine Streets, in
the city and county of Philadelphia, Pennsylvania. Upon arriving
on the scene, the officer spoke to the robbery victims
Marisa Guaglione Stevens, Glenn Stevens,
and Christopher Guaglione.1 Based on information supplied by
the robbery suspect(s) over police radio. (N.T. 2/1/10, pp. 74-
77).
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1
Glenn Stevens
Marisa Guaglione Stevens (Mrs. Stevens).
At the time of the robbery, Sergeant Dominick Cole was
working bike patrol near 5th and South Streets, in the city and
county of Philadelphia, Pennsylvania. While directing traffic,
Sergeant Cole observed a gray Yukon vehicle turn the wrong
way on 5th Street. The officer signaled the vehicle to pull over so
complied. (Id., pp. 16-19, 38).
while another officer (Officer Rivera) approached the passenger
side. Appellant was the sole passenger in the vehicle. Sergeant
Cole asked the driver for his license, registration and insurance
what he asserted to be his name, but when the officer checked
this name with the Department of Motor Vehicles (DMV), the
name. (Id., pp. 20-21).
At this point, Sergeant Cole requested the driver to exit
the vehicle and advised that the car would be impounded
ecause the
(Id., p. 21).2
2
The driver eventually provided Sergeant Cole
license had been issued under this second name.
(Id., p. 39).
While Sergeant Cole and Officer Rivera escorted the driver
sweatshirt o
white male who resided near 17th and Pine Streets. Upon
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inquiring over police radio whether any robberies recently
occurred in that area, the officers learned that one had just
occurred at 17th and Pine Streets. Sergeant Cole therefore
requested that the robbery victims be brought to 5th and South
Streets for purposes of identification. (Id., pp. 23-24, 42-43).
By this time, another officer, Officer Corrado, had arrived
Id.,
p. 67). When she attempted to remove Appellant from the
passenger seat, a glove fell from the vehicle and landed on the
pavement. Officer Corrado leaned over to retrieve the glove and
observed the handle of a gun beneath the passenger seat.
Officer Corrado immediately notified Sergeant Cole and Officer
Rivera of her discovery, assisted them in securing Appellant in
handcuffs, and recovered the weapon. (Id., pp. 68-69).3 The
officers also recovered several items from the floor of the vehicle
where they discovered the gun, including several cell phones, a
camera, and credit cards. (Id., pp. 27-29). After removing
Appellant from the vehicle, Officer Corrado asked whether he
stated that the gun belonged to his brother. (Id., pp. 68-69).
3
with ten (10) live rounds. (Id., p. 23).
transported the complainants to 5th and South Streets for
possible identification. Upon seeing Appellant, all of the
complainants identified him as the man who robbed them at
Id., pp. 77-81). The complainants also
identified the gun used by Appellant in the robberies, and
confirmed that the items recovered from the vehicle belonged to
them. (Id., pp. 34-35).
After these positive identifications, Officer Rivera searched
Appellant and recovered from his left pocket an ID and credit
card belonging to Mrs. Stevens. (Id., p. 57).
Appellant provided no testimony or other evidence at the
owner, never testified that [the driver] had permission to
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unidentified owner gave Appellant permission to occupy the
vehicle. Based
denied Appellants suppression motion in its entirety.
PCRA Court Opinion, 2/12/14, at 2-4.
Appellant was charged with three counts each of robbery, theft by
unlawful taking, receiving stolen property, simple assault, and recklessly
endangering another person, two counts of violating the Uniform Firearms
Act, and one count of possessing an instrument of crime. Appellant filed a
motion to suppress physical evidence, out-of-court identifications, and his
statements to police. The motion was denied, and the case proceeded to a
bench trial. At the conclusion of the trial, Appellant was found guilty on all
charges. On March 24, 2010, the trial court sentenced Appellant to an
aggregate term of ten to twenty years of incarceration, followed by six
months of probation. Appellant filed a timely appeal, and his judgment of
sentence was affirmed on March 31, 2011. Commonwealth v. Allen, 891
EDA 2010, 26 A.3d 1212 (Pa. Super. filed March 31, 2011) (unpublished
memorandum
for allowance of appeal on September 14, 2011. Commonwealth v. Allen,
29 A.3d 370 (Pa. 2011).
On January 11, 2012, Appellant, through counsel, filed a timely PCRA
petition, and on August 5, 2013, the PCRA court dismissed the petition. This
timely appeal followed.
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On appeal, Appellant raises the following issues:
A. Is the appellant entitled to post-conviction relief in the form of
a new trial or a remand for an evidentiary hearing as a result of
the ineffective assistance of appellate counsel for failing to raise
motion to suppress physical evidence?
B. Is the appellant entitled to post-conviction relief in the form of
a remand for resentencing or for an evidentiary hearing as a
result of the ineffective assistance of trial counsel for failing to
file and litigate a post-sentence motion in the nature of a motion
for reconsideration of sentence?
When reviewing the propriety of an order granting or denying PCRA
relief, this Court is limited to determining whether the evidence of record
supports the determination of the PCRA court and whether the ruling is free
of legal error. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.
2007). Great deference is granted to the findings of the PCRA court, and
these findings will not be disturbed unless they have no support in the
certified record. Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.
Super. 2003). There is no right to an evidentiary hearing on a PCRA
petition, and the PCRA court may decline to hold a hearing if the claims are
patently frivolous and without a trace of support in the record.
Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). On
review, we examine the issues raised in the petition in light of the record to
determine whether the PCRA court erred in concluding that there were no
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genuine issues of material fact and in denying relief without an evidentiary
hearing. Id.When considering an allegation of ineffective assistance of counsel, we
note that counsel is presumed to have provided effective representation
unless the PCRA petitioner pleads and proves that: (1) the underlying claim
is of arguable merit; (2) counsel had no reasonable basis for his or her
conduct; and (3)
Commonwealth v. Pierce, 527 A.2d 973, 975-
to meet the prejudice prong of the ineffectiveness standard, a defendant
must show that there is a reasonable probability that but for the act or
omission in question the outcome of the proceeding would have been
Commonwealth v. Wallace, 724 A.2d 916, 921 (Pa. 1999). A
claim of ineffective assistance of counsel will fail if the petitioner does not
meet any of the three prongs. Commonwealth v. Williams, 863 A.2d
505, 513 (Pa. 2004) (quoting Commonwealth v. Rush, 838 A.2d 651, 656
(Pa. 2003)).
Upon review of the issues raised, the briefs of the parties, the certified
rec
thorough and well-crafted opinion filed on February 12, 2014,
comprehensively outlines the relevant standards and law, and it correctly
we affirm the August 5, 2013
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the event of further proceedings in this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
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