Com. v. Croom, X. ( 2020 )

J-S10016-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
XAVIER CROOM :
:
Appellant : No. 1441 MDA 2019
Appeal from the PCRA Order Entered July 31, 2019,
in the Court of Common Pleas of Berks County,
Criminal Division at No(s): CP-06-CR-0000807-2018.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED: APRIL 6, 2020
Xavier Croom appeals from the order dismissing his petition for relief
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant factual and procedural history underlying the instant
appeal can be summarized as follows. In 2018, while Croom was on
supervised probation for receiving stolen property (a firearm), Berks County
Adult Probation Officers Brian Hartling and Carlo DeAngelo performed a
routine home compliance visit at Croom’s approved residence. N.T.
Suppression, 4/25/18, at 5-6, 24, 25, 27. When speaking with Croom in the
living room area of the residence, the officers detected an odor of marijuana.
Id. at 25, 31. The officers had both training and years of experience in
detecting the smell of burnt and unburnt marijuana. Id. at 8, 19, 27. It is a
____________________________________________
1 See 42 Pa.C.S.A. §§ 9541-9546.
J-S10016-20
violation of a Berks County probation or parole to possess or smoke marijuana.
Id. at 10, 28.
During a tour of the residence with Croom, the officers noticed that the
smell became noticeably stronger in an upstairs bedroom, and as they
approached the basement area. Id. at 8, 10, 18-19, 26. The officers
concluded that the smell of unburnt marijuana was strongest in the middle of
a makeshift music studio in the basement. Id. at 8-9. Officer Hartling stood
on a two-inch concrete ledge in the studio and observed a backpack and a
grey box in the rafters of the basement ceiling. Id. at 9-10. Officer Hartling
did not need to move any ceiling tiles to see the backpack and the grey box
because the rafters were in open view. Id. Based on the officers’ observation
of the backpack and grey box stored in the rafters near where the smell of
unburnt marijuana was the strongest, the officers believed that they had
reasonable suspicion to conduct a property search of the basement, which was
an area of equal access and control. Id. at 10. Officer Hartling then contacted
his supervisor, and requested permission to search the basement area. Id.
at 10-11. Officer Hartling’s supervisor approved the search of the basement.
Id. at 11, 23, 28. After receiving such approval, Officer Hartling retrieved
from the rafters the backpack and grey box, along with a plate with a scale
and a spoon coated in a white powdery substance, and small glassine baggies
commonly used to package drugs. Id. at 11, 23, 37. Inside the backpack,
the officers found approximately twenty sandwich bags containing suspected
marijuana. Id. at 11. The markings on the gray box indicated that contained
-2-
J-S10016-20
a .45 caliber Ruger firearm. Id. at 12. No firearm was in the box; however
it contained a loaded magazine. Id. It is a violation of Bucks County probation
or parole to possess a firearm or ammunition. Id. Croom denied having a
firearm in the house. Id.
Based on the items discovered in the basement, Officer Hartling believed
that he had reasonable suspicion to conduct a further property search for the
gun. Id. at 13. He again contacted his supervisor, and requested permission
to search Croom’s bedroom and any common areas in the residence for a
firearm. Id. After the supervisor approved the second property search,
Officer Hartling found a loaded .45 caliber Ruger firearm in the closet of
Croom’s bedroom. Id. at 14-15. Croom was thereafter arrested and charged
with multiple drug and firearm violations.
Croom filed a motion to suppress the items found in his residence.
Following a suppression hearing, the trial court denied the motion. On August
27, 2018, Croom entered an open guilty plea to persons not to possess
firearms and possession with intent to deliver a controlled substance. The
Commonwealth nolle prossed the remaining charges. On the same date, the
trial court sentenced him to an aggregate term of three and one-half to ten
years in prison. Croom did not file a post-sentence motion or a direct appeal.
On March 11, 2019, Croom filed a timely pro se PCRA petition. The
PCRA court appointed counsel, who filed an amended petition in which Croom
claimed that trial counsel was ineffective for not calling Croom’s girlfriend,
Crystal Colon, as a witness at the suppression hearing. The PCRA court issued
-3-
J-S10016-20
notice of its intent to dismiss the petition without a hearing, and thereafter
dismissed the petition on August 1, 2019. Croom filed a timely notice of
appeal. Both Croom and the PCRA court complied with Pa.R.A.P. 1925.
Croom raises the following issue for our review: “Did not the PCRA court
err and abuse its discretion by d[ismiss]ing [Croom’s] PCRA petition without
a hearing where there was a genuine issue of material fact raised and well
pleaded in the petition, and [Croom’s] witness would have contradicted the
testimony of witnesses who testified previously?” Croom’s Brief at
unnumbered 4 (unnecessary capitalization omitted).
Our standard of review is well-settled:
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
The PCRA court has the discretion to dismiss a petition without a hearing
when the court is satisfied “that there are no genuine issues concerning any
material fact, the petitioner is not entitled to post-conviction collateral relief,
and no legitimate purpose would be served by further proceedings.”
-4-
J-S10016-20
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011); see also
Pa.R.Crim.P. 907. “To obtain reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he raised a genuine
issue of fact which, if resolved in his favor, would have entitled him to relief,
or that the court otherwise abused its discretion in denying a hearing.”
Paddy, 15 A.3d at 442 (quoting Commonwealth v. D’Amato, 856 A.2d 806,
820 (Pa. 2004)).
When a petitioner alleges trial counsel’s ineffectiveness in a PCRA
petition, he or she must demonstrate that:
(1) that the underlying claim has arguable merit; (2) that no
reasonable basis existed for counsel’s actions or failure to act; and
(3) that the petitioner suffered prejudice as a result of counsel’s
error. To prove that counsel’s chosen strategy lacked a
reasonable basis, a petitioner must prove that an alternative not
chosen offered a potential for success substantially greater than
the course actually pursued. Regarding the prejudice prong, a
petitioner must demonstrate that there is a reasonable probability
that the outcome of the proceedings would have been different
but for counsel’s action or inaction. Counsel is presumed to be
effective; accordingly, to succeed on a claim of ineffectiveness[,]
the petitioner must advance sufficient evidence to overcome this
presumption.
Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal
citations and quotation marks omitted). A failure to satisfy any prong of the
test for ineffectiveness will require rejection of the claim. Commonwealth
v. Martin, 5 A.3d 177, 183 (Pa. 2010).
Further, in order to establish that trial counsel was ineffective for failing
to call a witness, the petitioner must also demonstrate that (1) the witness
-5-
J-S10016-20
existed; (2) the witness was available to testify for the defense; (3) counsel
knew of, or should have known of, the existence of the witness; (4) the
witness was willing to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have denied the petitioner a
fair trial. See Commonwealth v. Thomas, 44 A.3d 12, 23 (Pa. 2012).
Croom contends that the PCRA court erred and abused its discretion in
dismissing the petition without conducting an evidentiary hearing. He claims
that he raised a genuine issue of material fact regarding trial counsel’s
ineffectiveness for failing to call Ms. Colon as a witness at the suppression
hearing. He asserts that Ms. Colon was present in the residence at the time
of the property searches, attended the suppression hearing, and would have
testified at that proceeding. He additionally submitted Ms. Cole’s affidavit,
wherein she attested that the probation officers failed to follow the procedures
for the search of Croom’s residence, as provided in 61 Pa.C.S.A. § 6153 of the
Parole Act.
In particular, § 6153(d) provides that “[a] property search may be
conducted by an agent if there is reasonable suspicion to believe that 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.” Id. § 6153(d)(2). However, the statute further provides that
“[p]rior approval of a supervisor shall be obtained for a property search absent
exigent circumstances.” Id. § 6153(d)(3).
-6-
J-S10016-20
Croom maintains that Ms. Cole was prepared to testify that the
probation officers searched the backpack prior to obtaining authorization from
a supervisor. He claims that trial counsel was aware of the substance of Ms.
Cole’s proposed testimony, but did not call her as a witness at the suppression
hearing. Croom argues that, had Ms. Cole testified that the officers searched
the backpack prior to contacting the supervisor, the suppression court would
have suppressed the gun and the drugs. On this basis, he claims that he
raised a material fact regarding trial counsel’s ineffectiveness, thereby
entitling him to an evidentiary hearing.
The PCRA court conceded that Croom established the first four prongs
of the test for ineffectiveness in failing to call a witness. See PCRA Court
Opinion, 7/2/19, at 4 (stating “based on the witness’ affidavit, she existed,
was willing and able to testify at the time and prior counsel did or should have
known of her existence”). However, the PCRA court determined that Croom’s
ineffectiveness claim lacked merit because he could not establish the final
prong of the test for ineffectiveness which required Croom to demonstrate
that, but for counsel’s ineffectiveness, the results of the proceeding would
have been different. See id. The court reasoned that, even if Ms. Cole had
testified and the suppression court had credited her testimony over that of the
probation officers, the outcome of the suppression hearing would not have
been different. See id. In so ruling, the PCRA court pointed to § 6153(c),
which provides that “[n]o violation of this section shall constitute an
-7-
J-S10016-20
independent ground for suppression of evidence in any probation or parole
proceeding or criminal proceeding.” 61 Pa.C.S.A. § 6153(c). Based on this
provision, the PCRA court concluded that, even if Croom established that the
officers did not follow the correct procedure, that fact alone would not have
entitled Croom to suppression. See PCRA Court Opinion, 7/2/19, at 5-6.
We discern no error or abuse of discretion by the PCRA court. Although
a parolee or probationer does not relinquish his Fourth Amendments rights
pursuant to § 6153,2 his rights are nevertheless limited because of a
diminished expectation of privacy in exchange for an early release from
incarceration. See Commonwealth v. Williams, 629 A.3d 1031, 1035 (Pa.
1997). Therefore, a warrantless search of a probationer’s residence will be
deemed reasonable if the totality of the evidence demonstrates that: (1) the
probation officer had a reasonable suspicion that the probationer had
committed a probation violation; and (2) the search was reasonably related
to the probation officer’s duty. See id. at 1036.
Here, Croom does not dispute that the officers had reasonable suspicion
to search his residence for contraband. Nor does he claim that Ms. Cole’s
proposed testimony would have negated the officers’ reasonable suspicion
that Croom was in possession of contraband. Therefore, even if the officers
____________________________________________
2 Pursuant to § 6153(b)(2), “[n]othing in this section shall be construed to
permit searches or seizures in violation of the Constitution of the United States
or Article 1 of the Constitution of Pennsylvania.” 61 Pa.C.S.A. § 6153(b)(2).
-8-
J-S10016-20
violated § 6153(d)(2) by failing to obtain approval from a supervisor prior to
the search of the backpack, the outcome of the suppression hearing would not
have been different because that failure would not constitute an independent
basis for suppression pursuant to § 6153(d)(c). Accordingly, as the PCRA
court’s ruling is supported by the record and free of legal error, we affirm its
determination that dismissal of the petition without an evidentiary hearing
was warranted because Croom failed to raise a genuine issue of material fact,
and his ineffectiveness claim did not entitle him to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/06/2020
-9-