Com. v. Litt, H. ( 2015 )

J-S24005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
H. ALLEN LITT
Appellant No. 1059 EDA 2014
Appeal from the PCRA Order March 7, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002280-2008
BEFORE: GANTMAN, P.J., ALLEN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 08, 2015
Appellant, H. Allen Litt, appeals from the order entered in the
Philadelphia County Court of Common Pleas, granting in part and denying in
part his first petition brought pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
[Appellant] was a licensed attorney who operated a solo
practice specializing in personal injury claims in
Philadelphia. To obtain business, [Appellant] utilized the
services of several “runners” to recruit clients. With
[Appellant’s] knowledge and encouragement, the runners
often manufactured cases for the prospective clients and
coached the prospective clients to lie about their accidents
and injuries.
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1
42 Pa.C.S.A. §§ 9541-9546.
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Three of the runners used by [Appellant] were Nathaniel
Shaw and James Guinn, who specialized in slip-and-fall
cases, and Joshua Pitts, who specialized in automobile
accidents. For the slip-and-fall cases, [Appellant] used a
procedure whereby the runners would find a plausible
accident location, recruit a client to claim that he or she
had been injured at that location, and then provide the
recruit with a story about how the accident happened and
the injuries that he or she sustained. [Appellant] taught
the runners to select accident locations with visible
defects, such as broken pavement or handrails, to avoid
large department stores and locations with surveillance
cameras, and to claim that the accidents occurred during
daylight hours. For the automobile accidents, Mr. Pitts
used a police scanner to listen for reports of automobile
accidents and then would go to the accident site and
approach the individuals involved. Mr. Pitts would suggest
to the individuals involved in the accident that they should
exaggerate the extent of the accident, claim to be injured,
and then hire [Appellant] to pursue claims with their
insurance companies.
[Appellant] encouraged the runners to take prospective
clients to an emergency room to make specific complaints
about the location of fake accidents and the nature of
fabricated injuries. The runners would then personally
accompany the client to [Appellant’s] office for an
interview. There, the prospective client was to recite the
story of the accident and injuries as provided to them by
the runners. In some cases, the runners would relay the
false story of the accident themselves and [Appellant]
would merely ask the client a few basic questions.
[Appellant] would then recommend a doctor to the client
to visit for treatment, and instruct the client that the more
frequently he or she went to the doctor, the more money
he or she could recover.
At some point, [Appellant] would speak to the runner
privately and write out a check to the runner for his
services. [Appellant] instructed the runners that the
clients were not to know that he was aware that the claims
were fake. If a client was required to give a sworn
statement, [Appellant] would represent them at that
proceeding where the client would again recite the lies
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concocted by the runners about the accidents and injuries.
If a client’s claim was successful, the insurance company
would issue a settlement check to [Appellant]. [Appellant]
would then issue checks to pay for the client’s medical
bills, other costs associated with the claim, and his own
services. The remaining funds would be paid by check to
the client.
(Trial Court Opinion, filed December 21, 2009, at 2-4) (internal citations to
the record omitted).
Following trial, a jury convicted Appellant of six (6) counts each of
theft by deception and insurance fraud, five (5) counts of attempted theft by
deception, and one (1) count of dealing in proceeds of unlawful activities.
On March 11, 2009, the court sentenced Appellant to an aggregate term of
five (5) to ten (10) years’ imprisonment. This Court affirmed the judgment
of sentence on November 17, 2010. See Commonwealth v. Litt, 22 A.3d
1072 (Pa.Super. 2010) (unpublished memorandum). Appellant did not seek
further review with our Supreme Court.
On April 13, 2011, Appellant timely filed a pro se PCRA petition.2 In it,
Appellant raised multiple claims of ineffective assistance of trial and direct
appeal counsel. Appellant also asserted that the applicable statutes of
limitations barred several of his convictions. The court appointed PCRA
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2
Pursuant to the prisoner mailbox rule, a document is considered filed on
the date the appellant delivered it to prison authorities for mailing.
Commonwealth v. Castro, 766 A.2d 1283 (Pa.Super. 2001). Here, the
postmark attached to Appellant’s pro se PCRA petition is dated April 13,
2011.
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counsel, who filed an amended PCRA petition on October 19, 2012. On
October 31, 2013, the court issued notice of its intent to dismiss the petition
without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant filed a response
to the Rule 907 notice on January 17, 2014. On February 6, 2014, the
Commonwealth filed an answer indicating it did not oppose relief regarding
the convictions barred by the statutes of limitations. On March 7, 2014, the
court granted PCRA relief in part, vacating Appellant’s sentences for six (6)
time-barred convictions. The court re-sentenced Appellant on the remaining
convictions to an aggregate term of five (5) to ten (10) years’ imprisonment.
The court denied PCRA relief in all other respects.3
Appellant timely filed a notice of appeal on April 7, 2014. On April 8,
2014, the court ordered Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely
filed a Rule 1925(b) statement on April 29, 2014.
Appellant raises the following issues for our review:
WHETHER THE TRIAL/PCRA COURT ERRED IN FAILING TO
GRANT AN EVIDENTIARY HEARING TO DETERMINE
WHETHER A VIOLATION OF APPELLANT’S 6TH AMENDMENT
RIGHT TO COUNSEL UNDER THE U.S. CONSTITUTION,
AND ARTICLE 1, § 9 OF THE PENNSYLVANIA
CONSTITUTION OCCURRED:
____________________________________________
3
In its March 7, 2014 order, the PCRA court inadvertently failed to dispose
of Appellant’s ineffective assistance of counsel issues. By agreement of the
parties, the court entered an order on June 27, 2014, denying all other
claims raised in Appellant’s PCRA petitions “nunc pro tunc as of 3/7/14.”
(Criminal Docket Entries, printed 7/14/14, at 35).
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WHEN TRIAL COUNSEL FAILED TO CHALLENGE THE
VALIDITY OF THE SEARCH WARRANTS ISSUED
WHEN: THE WARRANTS LACKED PROBABLE CAUSE;
THE WARRANTS CONTAINED ALLEGATIONS THAT
WERE TOO REMOTE OR STALE TO SUBSTANTIATE
CURRENT CRIMINAL ACTIVITY; WHERE THE
ALLEGATIONS OF ILLEGAL ACTIVITIES WERE
BEYOND THE STATUTE OF LIMITATIONS; AND
WHERE WARRANTS FAILED TO ARTICULATE
APPELLANT’S ALLEGED CRIMINAL CONNECTION TO
THE ILLEGAL ACTIVITY?
WHEN APPELLATE COUNSEL FAILED TO RAISE IAC
CLAIMS AGAINST TRIAL COUNSEL AT THE
APPELLATE LEVEL WHEN TRIAL COUNSEL FAILED TO
CHALLENGE THE VALIDITY OF OR DEFECTS IN
SEARCH WARRANTS ISSUED THAT LACKED
PROBABLE CAUSE; CONTAINED ALLEGATIONS THAT
WERE TOO REMOTE OR STALE TO SUBSTANTIATE
CURRENT CRIMINAL ACTIVITY; CONTAINED
ALLEGATIONS OF ILLEGAL ACTIVITIES BEYOND THE
STATUTE OF LIMITATIONS; AND WHERE WARRANTS
FAILED TO ARTICULATE APPELLANT’S ALLEGED
CRIMINAL CONNECTION TO THE ILLEGAL ACTIVITY?
WHEN TRIAL COUNSEL FAILED TO CHALLENGE THE
PREJUDICIAL EFFECT OR IMPACT OF THE
ADMISSION OF STALE OR REMOTE EVIDENCE PRIOR
TO THE COMMENCEMENT OF TRIAL BY LITIGATING A
MOTION TO QUASH, A PRETRIAL MOTION IN
LIMINE, OR A MOTION TO SUPPRESS?
WHEN APPELLATE COUNSEL FAILED TO CHALLENGE
TRIAL COUNSEL’S INACTION REGARDING THE USE
OF EVIDENCE ILLEGALLY CONFISCATED FROM
APPELLANT’S OFFICE, EVIDENCE ADMITTED FOR
CHARGES BEYOND THE STATUTE OF LIMITATIONS
PERIOD, AND THE ADMISSION OF EVIDENCE THAT
WAS STALE OR TOO REMOTE TO BE RELEVANT OR
MATERIAL?
WHETHER THE TRIAL/PCRA COURT ERRED IN
CONCLUDING THAT STALE, REMOTE AND UNRELATED
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EVIDENCE WAS ADMISSIBLE TO ESTABLISH “A
CONTINUING COURSE OF CONDUCT” TO SUBSTANTIATE
THE CHARGE OF DEALING IN PROCEEDS OF UNLAWFUL
ACTIVITY?
WHETHER THE TRIAL/PCRA COURT ERRED IN FAILING TO
FIND THAT A NEW TRIAL WAS WARRANTED WHERE THE
ADMISSION OF EVIDENCE BEYOND THE STATUTE OF
LIMITATION PERIOD, ILLEGALLY CONFISCATED
EVIDENCE, AND STALE OR REMOTE EVIDENCE PRESENTED
DURING THE TRIAL RESULTED IN AN UNFAIR TRIAL
WHERE SAID EVIDENCE CONSTITUTED AN ONGOING
TAINT PRESENTED TO THE JURORS DURING THE TRIAL,
THAT ACTED LIKE A SNOW BALL ROLLING DOWNHILL AND
RESULTED IN A CONTINUUM OF PREJUDICE WHICH
DEMANDS A NEW TRIAL?
(Appellant’s Brief at 5-6).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA
hearing as a matter of right; the PCRA court can decline to hold a hearing if
there is no genuine issue concerning any material fact, the petitioner is not
entitled to PCRA relief, and no purpose would be served by any further
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proceedings. Commonwealth v. Wah, 42 A.3d 335 (Pa.Super. 2012).
In his first and second issues, Appellant contends Detective Donald
Murtha obtained two warrants to search Appellant’s law office during the
Commonwealth’s initial investigation into the fraudulent insurance claims.
Appellant asserts the affidavits of probable cause supporting the search
warrants contained the following defects:
In his affidavits of probable cause Detective Murtha failed
to identify the dates on which suspected offenses were
believed to have occurred, referred to incidents that
happened more than five years before the warrants were
sought, failed to specify the dates and times within which
[the detective] obtained the information which led to his
request for the warrants, failed to provide any current,
recent or active information, and failed to provide evidence
of any alleged criminal activity of Appellant’s involvement
in any unlawful activity.
(Appellant’s Brief at 16-17). In light of the purportedly defective affidavits,
Appellant argues trial counsel should have moved to quash the indictments
against Appellant and suppress all evidence obtained as a result of the
searches.4 Appellant further argues that appellate counsel should have
raised similar challenges on direct appeal. Appellant complains trial and
appellate counsel did not have a reasonable basis for failing to challenge the
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4
In a related claim, Appellant avers the trial court improperly admitted the
evidence at issue to establish a continuing course of conduct related to the
charge of dealing in proceeds of unlawful activities. Appellant insists,
however, dealing in proceeds of unlawful activities is not a continuing
offense, and trial counsel should have challenged the admissibility of the
evidence on this basis.
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defective search warrants or the admissibility of the evidence obtained as a
result of the searches, and counsels’ failures caused Appellant to suffer
prejudice. Appellant concludes trial and appellate counsel were ineffective.
We disagree.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, the petitioner is
required to demonstrate that: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable strategic basis for his action or inaction; and,
(3) but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different.
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The
failure to satisfy any prong of the test for ineffectiveness will cause the claim
to fail. Williams, supra.“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate [her] client’s interests. If we
conclude that the particular course chosen by counsel had
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some reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [a defendant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The defendant
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. In [Kimball, supra], we held
that a “criminal defendant alleging prejudice must show
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
(2002) (some internal citations and quotation marks omitted).
“In this jurisdiction, in determining whether probable cause for
issuance of a warrant is present, the ‘totality of the circumstances’ test set
forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527(1983), was adopted in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d
921 (1985).” Commonwealth v. Murphy, 916 A.2d 679, 681-82
(Pa.Super. 2007), appeal denied, 593 Pa. 739, 929 A.2d 1161 (2007).
“Under such a standard, the task of the issuing authority is to make a
practical, common sense assessment [of] whether, given all the
circumstances set forth in the affidavit, there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Id. at
682. Further, a magistrate’s finding of probable cause must be based on
facts described within the four corners of the affidavit. Commonwealth v.
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Smith, 784 A.2d 182 (Pa.Super. 2001).
“Under our law, the focus is on the information provided to the
issuing authority and its response to that information.” Commonwealth
v. Huntington, 924 A.2d 1252, 1256 (Pa.Super. 2007), appeal denied, 593
Pa. 746, 931 A.2d 656 (2007) (emphasis in original).
The role of the reviewing court and the appellate court is
to ascertain whether the issuing magistrate appropriately
determined that probable cause existed for the issuance of
the warrant. Probable cause is based on a finding of
probability and does not require a prima facie showing of
criminal activity. Both the reviewing court and this Court
must accord deference to a magistrate’s finding of
probable cause.
Id. (internal citations and quotation marks omitted).
“An affidavit of probable cause must include facts from which a
magistrate can determine the time frame within which the supporting
information was acquired.” Commonwealth v. Sharp, 683 A.2d 1219,
1223 (Pa.Super. 1996). “A search warrant is defective if the issuing
authority is not supplied with a time frame upon which to ascertain when the
affiant obtained the information from the informant and when the informant
himself witnessed the criminal acts detailed in the affidavit of probable
cause.” Id. “[S]tale information cannot provide probable cause in support
of a warrant.” Commonwealth v. Hoppert, 39 A.3d 358, 363 (Pa.Super.
2012), appeal denied, 618 Pa. 684, 57 A.3d 68 (2012) (quoting
Commonwealth v. Janda, 14 A.3d 147, 158 (Pa.Super. 2011)). “A
showing that criminal activity is likely to have continued up to the time of
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the issuance of a warrant renders otherwise stale information viable.”
Commonwealth v. Jones, 542 Pa. 418, 427, 668 A.2d 114, 118 (1995).
Additionally, “Admission of evidence is within the sound discretion of
the trial court and will be reversed only upon a showing that the trial court
clearly abused its discretion.” Commonwealth v. Drumheller, 570 Pa.
117, 135, 808 A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123 S.Ct.
2284, 156 L.Ed.2d 137 (2003) (quoting Commonwealth v. Stallworth,
566 Pa. 349, 363, 781 A.2d 110, 117 (2001)).
Admissibility depends on relevance and probative value.
Evidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue
more or less probable or supports a reasonable inference
or presumption regarding a material fact.
Drumheller, supra at 135, 808 A.2d at 904 (quoting Stallworth, supra at
363, 781 A.2d at 117-18).
“Evidence of prior crimes or bad acts may not be presented at trial to
establish the defendant’s criminal character or proclivities.”
Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.Super. 2008),
appeal denied, 600 Pa. 739, 964 A.2d 1 (2009).
The same evidence may be admissible in other
circumstances, however. To be admissible, the evidence
must have some purpose other than simply prejudicing the
defendant. Some examples of legitimate evidentiary
purposes for the introduction of evidence of other crimes
or criminal behavior include: motive, intent, absence of
mistake or accident, a common scheme, to establish the
identity of the person charged with the commission of the
other crime, to impeach the credibility of a defendant’s
testimony, situations where a defendant used his prior
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criminal history to threaten or intimidate the victim, or
situations where the distinct crimes were part of a chain or
sequence [of] events which formed the history of the case
and were part of its natural development.
Commonwealth v. Santiago, 822 A.2d 716, 728 (Pa.Super. 2003), cert.
denied, 542 U.S. 942, 124 S.Ct. 2916, 159 L.Ed.2d 820 (2004) (internal
citations and quotation marks omitted).
Instantly, Detective Murtha applied for the first warrant to search
Appellant’s office on December 1, 2005. The affidavit of probable cause
included the following averments:
Your affiant is investigating a series of fraudulent
insurance claims in which Nathaniel Shaw recruits
individuals to participate in fraudulent insurance claims.
All of the claimants have had a slip and fall type accident
on a commercial property. They have then treated at an
emergency room, and followed up with physical therapy.
Shaw then referred them to [Appellant], who filed claims
with the insurance carrier on their behalf.
Brenda Alexander, Kenneth Harrison, Lucille Hickman,
Beverly Johnson, and John Whitmore either live or have
lived in properties owned by Mr. Shaw. Carolyn Cottman
lived with Shaw, and was involved in a relationship with
him for several years. Carolyn Cottman, Shirley Cottman,
and Denise Cottman are sisters.
Kenneth Harrison made a statement to…a representative
of Chubb Insurance, in which he identified Brenda
Alexander as his girlfriend. Harrison stated that
Alexander’s insurance claim was fraudulent, and set up by
Nathaniel Shaw, whom he identified as his landlord.
Harrison added that Shaw attempted to recruit him into a
fraudulent insurance claim by telling him that all he had to
do was answer a few questions, and he would get paid.
Harrison stated that Shaw provided Alexander with
pictures and told her what she was supposed to do, and
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what to say to the lawyer. Shaw later drove Harrison and
Alexander to [Appellant’s] office and stayed for the
interview.
Harrison stated that Lucille Hickman and Beverly Johnson,
also former tenants of Shaw’s, had participated with Shaw
in fraudulent insurance claims. According to Harrison,
Hickman and Johnson both told him that Shaw set them up
by providing them with pictures, and telling them what to
say. Shaw also set Hickman and Johnson up with
[Appellant]. According to Harrison, Shaw also told him
that he had set up both Hickman and Johnson with their
fraudulent insurance claim.
Your affiant interviewed Brenda Alexander. Alexander
admitted that her insurance claim against Chubb was
fraudulent. Alexander stated Shaw took her to see
[Appellant], and that Shaw provided her with photographs
and told her what to say.
[Appellant] eventually withdrew his claim on behalf of
Brenda Alexander with Chubb. [Appellant] settled the
claim on behalf of Beverly Johnson with Nationwide and
the City of Philadelphia for $5,750.00. [Appellant] settled
the claim on behalf of Lucille Hickman with Travelers for
$5,000.00.
Your affiant interviewed Carolyn Cottman. Carolyn
Cottman admits that her insurance claim against Chubb
Insurance is fraudulent. Carolyn Cottman stated that she
was involved in a relationship with Nathaniel Shaw.
According to Carolyn Cottman, Shaw took her to see
[Appellant]. Shaw also provided her with photographs of
the insured location and told her what to say. [Appellant]
settled the claim on behalf of Carolyn Cottman for
$1,500.00.
Your affiant spoke to Shirley Cottman. Shirley Cottman
admits to exaggerating her injuries in her claim against
The Hartford. Shirley Cottman stated that Shaw took her
to see [Appellant], and that Shaw took photographs of the
hole in the parking lot where she alleges she actually
twisted her ankle. [Appellant] settled this claim on behalf
[of] Shirley Cottman with The Hartford for $1,000.00.
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Your affiant reviewed claim file # P-6585 from Magna
Carta Companies for a slip and fall claim involving Denise
Cottman on the insured property of the Hollywood Video
Store at 4333 N. Broad Street on 05-21-01. [Appellant]
represented Denise Cottman in this claim. According to
the file, Denise Cottman fell and injured herself due to a
depressed manhole cover in the sidewalk. The claim file
includes four Polaroid photos of the manhole cover.
Shirley Cottman is listed as a witness to the fall. Denise
Cottman treated at Temple Hospital Emergency Room and
then with Dr. Richard S. Glick. [Appellant] settled this
claim on behalf of Denise Cottman for $10,000.00.
Your affiant interviewed John Whitmore. Mr. Whitmore
admitted that his insurance claim against Church Mutual is
fraudulent. Whitmore stated that Shaw took him to see
[Appellant] and sat with him while [Appellant] interviewed
him. According to Whitmore, Shaw was aware that he did
not injure himself at the insured property. Whitmore
stated Shaw encouraged him to exaggerate his injuries in
order to get a large sum of money in settlement.
[Appellant] settled this claim on behalf of Mr. Whitmore for
$12,000.00.
Your affiant learned that Nathaniel Shaw…had a
commercial liability claim from an incident at the First
Union Bank, 2627 Germantown Avenue on or about 08-26-
1999. Your affiant contacted Jody Jaffry of the Special
Investigation Unit of GAB Robins North America. Ms. Jaffry
confirmed that her company insured First Union, and that
[Appellant] had filed a claim on Nathaniel Shaw’s behalf.
[Appellant] settled this claim on behalf of Nathaniel Shaw
for $5,500.00.
* * *
(See Amended PCRA Petition, filed 10/19/12, at Exhibit A; Appellant’s Brief
at Exhibit A.) Detective Murtha subsequently received a warrant to search
for records related to the aforementioned insurance claims.
Detective Murtha applied for the second warrant to search Appellant’s
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office on February 6, 2006. The affidavit of probable cause included the
following averments:
On 12-05-2005, your affiant and other members of the
[Philadelphia District Attorney’s Insurance Fraud Unit]
served Search and Seizure Warrant # 118246 at
[Appellant’s law office]. As a result of this search and
seizure warrant numerous files, documents, and
accounting cards were seized.
During the search inside [Appellant’s] office, Melissa
Burns, an employee of [Appellant’s], directed your affiant
to [Appellant’s] accounting cards. These cards were stored
in [Appellant’s] office, in an area directly behind
[Appellant’s] desk and also in a cabinet in front of
[Appellant’s] desk. Your affiant reviewed the accounting
cards, and seized those cards that were [relevant] to
Nathaniel Shaw, as outlined in Search and Seizure Warrant
# 118246.
Your affiant reviewed the accounting cards recovered from
[Appellant’s] office during the execution of the Search and
Seizure warrant on 12-05-2005. These cards reveal over
130 payments from [Appellant] to Nathaniel Shaw from
1985 to the present. These payments, listed as fees for
photographs or investigation, range from $100.00 to
$1,000.00 per case, and total more than $47,000.00. The
total payments issued by the corresponding insurance
carriers in these cases, as indicated by [Appellant’s]
accounting cards, are over one million dollars. On the
accounting cards seized, the payment to Nathaniel Shaw is
generally the first item listed on the card.
While searching through the accounting cards inside
[Appellant’s] office, your affiant noticed many additional
accounting cards, which also indicated a payment to other
individuals as the first entry on the card. Several different
names appeared again and again, along with payment
information, on these cards. These cards were similar to
the cards indicating payments to Nathaniel Shaw, but
these cards were not seized, and the names of the
individuals were not recorded as they did not relate to
search and seizure warrant # 118246.
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* * *
On 01-03-2005, Nathaniel Shaw and his attorney…came
into the District Attorney’s Office and made a statement.
In summary, Shaw stated he has known [Appellant] for
about thirty years. Shaw went on to state that he is
involved in bringing clients into see [Appellant], and
[Appellant] files fraudulent insurance claims on their
behalf. [Appellant] pays [Shaw] from $150.00 to $500.00
for each client. According to Shaw, [Appellant] is aware
that the cases are fraudulent. In fact, [Appellant]
instructed Shaw to find locations with broken concrete,
missing or broken steps, or broken handrails, and then
take pictures of the defect. Shaw was to then match the
location up with a client and to instruct the client on where
to say they fell.
* * *
Your affiant asked Shaw if there were others who also
brought cases to [Appellant]. Shaw identified a Gerry
Marshall and a Mario Westcott as bringing cases to
[Appellant]. According to Shaw, Marshall told Shaw that
he had referred a lot of cases to [Appellant]. Shaw stated
that Westcott also stated that he referred cases to
[Appellant]. In addition, Shaw stated he knew there were
others, but didn’t know their names.
* * *
(See Amended PCRA Petition, filed 10/19/12, at Exhibit B; Appellant’s Brief
at Exhibit B.) Detective Murtha subsequently received a warrant to search
for records related to the other individuals who served as runners for
Appellant.
The PCRA court reviewed Appellant’s claims concerning the affidavits
of probable cause as follows:
[V]iewed in a commonsense manner, the information
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contained in the [first] affidavit established an ongoing
course of fraudulent conduct, evidence of which could be
found in the records held by [Appellant] in his law office.
The affidavit established that Shaw had been engaged in
repeated fraudulent insurance claims at least until January
2004,[5] that Shaw took the claimants to [Appellant’s]
office, and that [Appellant] had filed claims and received
payment on behalf of the claimants. Since the totality of
the circumstances, as demonstrated in the affidavit,
established a “fair probability” that evidence of fraudulent
insurance claims would be found in [Appellant’s] offices,
there was substantial evidence in the record to support the
decision to issue the warrant.
* * *
[Appellant’s] claims of staleness are belied by the
continuous course of conduct engaged in, as well as the
nature of the records sought. The affidavit clearly details a
course of conduct wherein Shaw recruited fake insurance
claimants and presented those claimants to [Appellant].
The affidavit also clearly describes the events therein in
the present tense, detailing past claims of only a few years
earlier to support the allegation of conduct that had begun
five years earlier. Finally, the affidavit avers that each of
these fraudulent claims were litigated by [Appellant], who
maintained business records as part of that litigation. The
affidavit, therefore, did not include remote or stale
allegations, as the evidence sought would be expected to
be found in the business records located in [Appellant’s]
law office.
* * *
The averments in the affidavit for the second warrant
established that the incriminating evidence sought in the
warrant were not only likely to be kept in [Appellant’s]
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5
The first affidavit of probable cause stated that Shirley Cottman’s
purported injury occurred on January 13, 2004. The incidents precipitating
the other fraudulent insurance claims mentioned in the first affidavit
occurred between 2000 and 2002.
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offices, but were actually known to be located there. The
affidavit established that [Appellant] kept accounting
records for payments made to runners other than Shaw
and that there were additional files associated with those
runners. Since the totality of the circumstances, as
demonstrated in the affidavit, established more than a “fair
probability” that additional evidence of fraudulent
insurance claims would be found in [Appellant’s] offices,
there was substantial evidence in the record to support the
decision to issue the warrant.
(See PCRA Court Opinion, filed July 14, 2014, at 5-8.) We agree. Although
Appellant vigorously asserts that the first affidavit did not specifically allege
Appellant’s participation in/knowledge of criminal activity, we emphasize that
the affidavit had only to establish a fair probability that evidence of a crime
would be found at Appellant’s office. See Murphy, supra. Here, the
circumstances described in the first affidavit, including Appellant’s clients’
statements to Detective Murtha, created a fair probability that the detective
would find evidence related to the fraudulent insurance claims at Appellant’s
office. As the search warrants were valid, all prior counsel cannot be
deemed ineffective for failing to challenge them. See Pierce, supra;Poplawski, supra.Regarding trial counsel’s failure to object to the admission of allegedly
improper evidence, the PCRA court noted:
It is true that the Commonwealth’s case included evidence
of numerous fraudulent claims that were remote enough in
time to be barred by the statute of limitations applicable to
theft and insurance fraud. However, all of this evidence
was clearly relevant and admissible….
First, the evidence was admissible…for the Commonwealth
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to prove necessary predicate acts for [Appellant’s] corrupt
organization charge.
* * *
As the evidence objected to by [Appellant] was directly
relevant to establish predicate acts constituting a “pattern
of racketeering activity,” a requisite element of the corrupt
organization charge, [Appellant] was not unfairly
prejudiced by the [admission] of such evidence.
* * *
Finally, the evidence was admissible under Pa.R.E. 404(b)
to establish that the fraudulent acts with which [Appellant]
was charged were part of a common scheme or plan.
* * *
Here, evidence of [Appellant’s] past interactions with Shaw
and other runners was admissible to demonstrate
[Appellant’s] common scheme and plan. [Appellant]
utilized runners to scope out potential locations for a
fraudulent accident. The same runner would then recruit
an individual to claim that they had been injured in that
location, whereupon the runner would take the claimant to
[Appellant] for legal representation. [Appellant] would
then pay the runner a fee and would file a fraudulent claim
on behalf of the claimant. Upon completion of the case,
[Appellant] would split the proceeds of any financial award
pursuant to a fee agreement. In many instances, the only
difference between the “stale acts” and the acts for which
[Appellant] was convicted were the physical location of the
claimed accident and the amount of money distributed.
Clearly, [Appellant’s] course of conduct was sufficiently
similar to the conduct at issue as to be admissible as
evidence of [Appellant’s] common scheme and plan.
(See PCRA Court Opinion at 8-11) (internal citations omitted). We agree
that the trial court properly admitted the relevant evidence at issue. See
Drumheller, supra; Santiago, supra. Thus, Appellant’s claim that trial
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counsel should have objected to the admission of the evidence, lacks
arguable merit. Therefore, Appellant is not entitled to relief on his first and
second issues. See Pierce, supra; Poplawski, supra.In his third issue, Appellant reiterates his allegations regarding the
purportedly defective search warrants. Appellant maintains he satisfied his
burden of proof in the PCRA court, because “[w]hat was required…was that
the jury verdict could have been different but for the admission of the
illegally obtained and stale evidence.” (Appellant’s Brief at 41). Appellant
concludes he is entitled to a new trial on this basis. Nevertheless, we have
already determined that probable cause supported the issuance of the
search warrants, and the trial court properly admitted the evidence obtained
through execution of the warrants. Thus, the PCRA court correctly applied
the law, and Appellant’s third issue warrants no relief. See Conway,
supra. Accordingly, we affirm the court’s order disposing of Appellant’s
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2015
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