Com. v. Wright, R. ( 2016 )

J-S46027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RYAN WRIGHT
Appellant No. 2980 EDA 2015
Appeal from the PCRA Order August 31, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005191-2012
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED JULY 26, 2016
Ryan Wright appeals, pro se, from the order entered August 31, 2015,
in the Montgomery County Court of Common Pleas, denying his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541-9546. Wright seeks relief from the judgment of sentence of a term of
five to 10 years’ imprisonment, imposed following his non-jury conviction of
persons not to possess firearms.1 On appeal, Wright contends trial counsel
was ineffective for failing to argue that the parole agent involved in his
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 6105(a)(1).
J-S46027-16
arrest was acting as a “stalking horse” for the police.2 For the reasons that
follow, we affirm.
The facts underlying Wright’s arrest and conviction were summarized
by this Court in the unpublished decision affirming his judgment of sentence
on direct appeal:
During April 2012, State Parole Agent Harry Gaab learned
information from two sources that [Wright] would be in
Norristown, Montgomery County. At the time, [Wright] was on
state parole and was not permitted outside of Philadelphia
County. According to these sources, [Wright] was carrying a
gun, involved in drug deals and robberies, and driving a black
Jeep Cherokee. The sources were individuals whom the agent
had used in the past on multiple occasions[, and had provided
information that led to arrests.] On April 30, 2012, Agent Gaab
learned from one source that [Wright] would be in Norristown in
the vehicle in question in the vicinity of Spruce and Willow
Streets. Agent Gaab confirmed this information within fifteen
minutes, observing a black Jeep Cherokee parked on the corner
of Spruce and Willow Streets. The agent recorded the license
plate number and ran a check, which revealed no record of that
tag. However, Agent Gaab's source confirmed that the tag
number belonged to the vehicle driven by [Wright].
Thereafter, for safety reasons, Agent Gaab and his
supervisor contacted Norristown police to aid in arresting
[Wright]. Agent Gaab informed Sergeant Langdon of the
Norristown police how he had learned of the information
regarding [Wright]. Sergeant Langdon passed this information
along to Officer Louis Geiser of the Norristown Police
Department. Officer Geiser also discovered from his own check
that [Wright] had four active fine and costs arrest warrants from
a magisterial district court.
____________________________________________
2
Wright’s Brief at 4.
-2-
J-S46027-16
Subsequently, on May 2, 2012, Agent Gaab learned from a
source that [Wright] would be in Norristown in the black Jeep
Cherokee. Within a half-hour of receiving this information,
Officer Geiser, at approximately 10:00 p.m., located a black Jeep
Cherokee matching the description previously given. He
confirmed that the license plate number of the vehicle matched
that of the suspect vehicle. Accordingly, he activated his lights
and approached the vehicle with his weapon drawn. Officer
Geiser directed [Wright] to place his hands outside the window
of the vehicle. [Wright] complied.
Agent Gaab and his supervisor then arrived on the scene
along with an additional Norristown police officer. After being
removed from the vehicle and placed on the ground, [Wright]
indicated that he had a gun in his back pocket. Law
enforcement seized the weapon and arrested [Wright].
Commonwealth v. Wright, 104 A.3d 56 [1067 EDA 2013] (Pa. Super.
2014) (unpublished memorandum at 1-3).
As noted above, Wright was charged with one count of persons not to
possess firearms.3 Prior to trial, Wright sought to suppress the firearm,
asserting that the stop of his vehicle, and subsequent seizure and search of
his person, were illegal.4 Following a hearing on March 28, 2013, the trial
court denied Wright’s motion to suppress. Wright proceeded to a stipulated
non-jury trial on April 3, 2013, was found guilty by the trial court, and was
____________________________________________
3
We note that Wright was also charged with one count of firearms not to be
carried without a license, but that charge was later nolle prossed by the
Commonwealth. See 18 Pa.C.S. § 6106(a)(1).
4
In the memorandum disposing of Wright’s direct appeal, the panel noted
that although no written suppression motion was included in the record, or
reflected on the docket, the Commonwealth did not object to the lack of a
written suppression motion. See Wright, supra, 1067 EDA 2013,
unpublished memorandum at 3 n.3.
-3-
J-S46027-16
sentenced the same day to a standard range term of five to 10 years’
imprisonment. This Court affirmed the judgment of sentence on direct
appeal. See id.
On June 3, 2015, Wright filed a timely, pro se PCRA petition, and
counsel was appointed. However, on August 4, 2015, counsel filed a petition
to withdraw and accompanying Turner/Finley5 “no merit” letter. The same
day, the PCRA court granted counsel’s petition to withdraw, and issued
notice of its intent to dismiss Wright’s petition without first conducting an
evidentiary hearing pursuant to Pa.R.A.P. 907. Wright did not file a
response to the court’s notice, and accordingly, on August 31, 2015, the
PCRA court entered an order dismissing the petition. This timely appeal
followed.6
____________________________________________
5
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
6
Although the notice of appeal was time-stamped October 5, 2015, Wright
mailed the notice on September 28, 2015, as evidenced by a copy of the
prison “cash slip” included with the petition, which indicates the date he had
postage deducted from his prisoner account. “Under the prisoner mailbox
rule, we deem a pro se document filed on the date it is placed in the hands
of prison authorities for mailing.” Commonwealth v. Brandon, 51 A.3d
231, 234 n.5 (Pa. Super. 2012) (citation omitted). Therefore, Wright’s
appeal was timely filed.
Thereafter, on October 6, 2015, the PCRA court ordered Wright to file
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Wright complied with the court’s directive, and filed a concise
statement that was docketed on November 2, 2015. Although the court
directed Wright to file the petition within 21 days of the its order, Wright
averred in his concise statement that he handed the document to prison
(Footnote Continued Next Page)
-4-
J-S46027-16
Wright’s sole claim on appeal asserts the ineffectiveness of trial
counsel for failing to argue during the suppression hearing that Parole Agent
Gaab circumvented the warrant requirement by acting as a “stalking horse”
for the police. Wright’s Brief at 4.
When reviewing an order dismissing a PCRA petition, we must
determine whether the PCRA court’s findings of fact are supported by the
record, and whether its legal conclusions are free from error.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “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. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation
omitted).
“[T]o 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.” Spotz, supra, 84 A.3d at 311. Moreover, “[c]ounsel is presumed
to have rendered effective assistance, and, if a claim fails under any
required element …, the court may dismiss the claim on that basis.”
Commonwealth v. Reid, 99 A.3d 470, 481 (Pa. 2014) (quotation omitted).
_______________________
(Footnote Continued)
officials for mailing on October 26, 2015. The trial court accepted the filing,
and, therefore, we will deem it timely filed pursuant to the prisoner mailbox
rule. See Brandon, supra.
-5-
J-S46027-16
During the suppression hearing, counsel argued the stop of Wright’s
vehicle and the seizure of his person were unlawful. Specifically, he claimed
Agent Gaab did not have reasonable suspicion to believe Wright committed a
parole violation. See N.T., 3/28/2013, at 61. However, Wright asserts
counsel should have argued Agent Gaab “switched hats” and “began acting
as a police officer” when he conducted an investigation and gathered
evidence to support new criminal charges. Wright’s Brief at 13. He
explains:
When a parole agent, in his normal duties, involves the police in
the search and arrest of a parolee, the parole agent “switched
hats” and became a “stalking horse”, thereby, circumventing the
warrant requirement which in reality is the normal function of
the police.
Id.
Wright contends Agent Gaab began gathering evidence against him
based on hearsay statements from two informants, who claimed Wright was
engaged in illegal activity. See id. at 14. He then conducted “surveillance”
which resulted in his observation of Wright’s vehicle parked legally near the
home of Wright’s children. Id. at 15. Agent Gaab never contacted Wright’s
supervising parole agent, but rather, “with the police in tow, relied fully on
the police power to arrest Wright.” Id. Therefore, Wright argues Agent
Gaab was not acting within his authority as a parole agent at the time he
stopped and searched Wright, but rather, he had “switched hats” to become
a “stalking horse” for the police. Wright further contends this claim has
arguable merit, counsel had no reasonable basis for failing to present a
-6-
J-S46027-16
“stalking horse” defense, and he was prejudiced as a result of counsel’s
inaction. See id. at 16-17.
In Commonwealth v. Pickron, 634 A.2d 1093 (Pa. 1993), the
Pennsylvania Supreme Court recognized parolees retain the right, under the
Fourth Amendment, to be free from unreasonable searches and seizures.
Id. at 1096. In that case, the Court considered whether parole officers had
exceeded their authority in conducting a full search of a parolee’s home.
The suppression court concluded the agents “had ‘switched hats’ by ceasing
to act as administrators of the parole system, and began acting as police
officers gathering evidence to support new criminal charges.” Id. at 1095.
However, the Superior Court reversed the decision on appeal. Id.
In reinstating the order of the trial court, the Supreme Court opined:
It is a matter of federal law and state law that parole and
probation officers cannot act like “stalking horses” for the police.
We have a factual determination by the Suppression Court that
these agents were subjectively operating as police officers. We
do not have a statute or regulation which allows or
governs the performance of warrantless searches based
upon reasonable suspicion or probable cause.
Id. at 1097 (emphasis supplied).
Subsequently, in January of 1996, the legislature added Section
331.27 to the 1941 Parole Act which permitted a parole agent “to search a
parolee’s person and property if there [was] a reasonable suspicion to
believe that the person or property [had] evidence of parole violations.”
See Commonwealth v. Mathis, 125 A.3d 780, 785 (Pa. Super. 2015),
appeal granted, 134 A.3d 51 (Pa. 2016). That statute was later repealed
-7-
J-S46027-16
and recodified as the Prison and Parole Code, 61 Pa.C.S. § 6101 et seq.
Pursuant to 61 Pa.C.S. § 6153, a parole agent may conduct a personal or
property search of a parolee if there is a reasonable suspicion to believe that
“the offender possesses contraband or other evidence of violations of the
conditions of supervision” or “the real or other property in the possession of
or under the control of the offender contains contraband or other evidence of
violations of the conditions of supervision.” 61 Pa.C.S. § 6153(d)(1)(i) and
(d)(2).7 See Commonwealth v. Curry, 900 A.2d 390, 394 (Pa. Super.
2006) (“Essentially, parolees agree to ‘endure warrantless searches’ based
only on reasonable suspicion in exchange for their early release from
prison.”) (citation omitted). Accordingly, this Court has explained the
determination of whether a parole agent acted as a “stalking horse” for the
police when conducting a search of a parolee, is “pertinent” to the extent
that a parole agent may, statutorily, circumvent the warrant requirement
based upon a finding of reasonable suspicion under Section 6153(d)(1).
Commonwealth v. Altadonna, 817 A.2d 1145, 1153 (Pa. Super. 2003).
In the present case, the PCRA court found Agent Gaab was not acting
as a “stalking horse” for the police. The court opined:
____________________________________________
7
We note that, absent exigent circumstances, an agent must obtain prior
approval from a supervisor to conduct a search of a parolee’s property. 61
P.S. § 6153(d)(3). However, no prior approval is required for a personal
search. Id.
-8-
J-S46027-16
In this case, the May 2, 2012, search and seizure of
[Wright] was based solely upon Agent Gaab’s investigation which
uncovered information from two reliable informants, that
[Wright] would be in Norristown carrying a gun and doing drug
deals, all of which were parole violations. Agent Gaab first went
to his supervisor, State Parole Agent Dettiburn, to report what
he had learned through his investigation. Agent Gaab then
coordinated with Norristown police only for safety purposes since
[Wright] was reportedly selling drugs and carrying a firearm.
There was nothing in the unfolding of these events to suggest
that Agent Gaab was working with the Norristown police in
search of criminal activity; rather, Agent Gaab in his role as a
parole agent, determined that there was evidence that [Wright]
was violating his parole as a result of his own investigation,
which never involved the Norristown police. It was only after
Agent Gaab developed the facts in his investigation that he went
to the Norristown police for safety reasons. Accordingly, Agent
Gaab was not a stalking horse for the Norristown police.
Furthermore, trial counsel was not ineffective in failing to
present this argument to the suppression court when the
underlying claim lacks merit.
PCRA Court Opinion, 11/16/2015, at 7-8.
Our review of the transcript from the suppression hearing confirms the
PCRA court’s findings are supported by the record. Agent Gaab testified he
acquired information from two previously reliable contacts that Wright was
frequently in Norristown without written permission and was carrying a
firearm, both of which were violations of the conditions of his parole.8 See
____________________________________________
8
To the extent Wright contends Agent Gaab neglected to contact his
supervising agent, whom, Wright claims, gave him permission to travel to
Norristown to see his children, we note Agent Gaab testified he “reviewed all
the notes,” as well as Wright’s “travel pass query,” and found no request for
Wright to travel to Norristown. N.T., 3/28/2013, at 49-50, 55. Moreover,
Wright admitted “normally you have to get a written permission slip” to
travel outside of the approved jurisdiction. Id. at 56.
-9-
J-S46027-16
N.T., 3/28/2013, at 19-20, 21. Moreover, he also received information from
those contacts that Wright was selling marijuana and conducting gunpoint
robberies. See id. at 21. Agent Gaab then conducted surveillance and
confirmed the vehicle Wright was driving was in Norristown without written
approval. See id. at 25-26. Thereafter, the agent briefed his supervisor on
the situation, who instructed him to coordinate the parole arrest with the
Norristown Police Department due to the fact Wright was purportedly
carrying a gun. See id. at 28. Therefore, although the police were
ultimately involved in the apprehension of Wright, Agent Gaab’s
investigation and his subsequent search of Wright, focused on Wright’s
parole violations. See Altadonna, supra, 817 A.2d at 1153 (holding parole
officers were not acting as agents of police; “[a]lthough [the defendant]
cites correctly the ways in which the BNI agents assisted the parole officers
in effectuating the seizure of [him] and the search of the van, the witnesses
testified consistently that the stop and search took place in order to
determine whether [the defendant] had committed a technical violation of
his parole.”). Accordingly, we conclude Wright’s claim had no arguable
merit, and the PCRA court did not err in finding trial counsel was not
ineffective for failing to raise this meritless claim.
Order affirmed.
- 10 -
J-S46027-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2016
- 11 -