Com. v. Gardinor, P. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
PATRICK E. GARDINOR, : No. 926 MDA 2019
:
Appellant :
Appeal from the PCRA Order Entered May 8, 2019,
in the Court of Common Pleas of Luzerne County
Criminal Division at No. CP-40-CR-0002618-2014
BEFORE: PANELLA, P.J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: APRIL 27, 2020
Patrick E. Gardinor appeals from the May 8, 2019 order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
The factual history of this case is not relevant to our disposition and
need not be reiterated here. The pertinent procedural history of this case, as
gleaned from the certified record, is as follows: On June 3, 2014, appellant
was arrested by members of the Pennsylvania Internet Crimes Against
Children Task Force (“Task Force”) following the execution of a search warrant
at his residence, and charged with multiple counts of distribution of child
pornography, possession of child pornography, and criminal use of a
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communication facility.1 Appellant waived his right to a jury trial and
proceeded to a bench trial on November 9, 2016. Following a one-day trial,
the trial court found appellant guilty of 100 counts of possession of child
pornography and one count each of distribution of child pornography and
criminal use of a communication facility. On February 27, 2017, the trial court
sentenced appellant to an aggregate term of five to ten years’ imprisonment,
followed by ten years’ probation. Appellant was also ordered to register as a
Tier II non-violent sexual offender for a period of 25 years, pursuant to
42 Pa.C.S.A. § 9799.10 et seq. (“SORNA”). Appellant filed a direct appeal
with this court that he withdrew on November 7, 2017. Thereafter, on
November 13, 2017, appellant filed a timely, counseled PCRA petition wherein
he argued that trial counsel2 was ineffective for failing to file a motion to
suppress appellant’s computer because the search warrant application was
stale. (See PCRA petition, 11/13/17 at 4-5, ¶ 17.) Following an evidentiary
hearing, the PCRA court dismissed appellant’s petition on May 8, 2019. This
timely appeal followed.3
1 18 Pa.C.S.A. §§ 6312(c), 6312(d), and 7512(a), respectively.
2Appellant was represented during the suppression phase of this case by
George Skumanick, Esq.
3 The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b). On August 1,
2019, the PCRA court filed a “statement in lieu of opinion” indicating that it
was relying on the reasoning set forth in its prior opinion authored in support
of its May 8, 2019 order denying appellant’s PCRA petition.
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Appellant raises the following issue for our review:
Did the PCRA [c]ourt err when it refused to find that
[trial] counsel was ineffective for failing to move to
suppress a computer that was obtained pursuant to a
search warrant that was based on information that
was five months old?
Appellant’s brief at 2.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). In order to be eligible for PCRA relief, a defendant must
plead and prove by a preponderance of the evidence that his conviction or
sentence arose from one or more of the errors listed at 42 Pa.C.S.A.
§ 9543(a)(2). Further, these issues must be neither previously litigated nor
waived. 42 Pa.C.S.A. § 9543(a)(3).
To prevail on a claim of ineffective assistance of counsel under the PCRA,
a petitioner must plead and prove by a preponderance of the evidence that
counsel’s ineffectiveness “so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken place.”
42 Pa.C.S.A. § 9543(a)(2)(ii). We apply a three-pronged test for determining
whether trial counsel was ineffective, derived from the test articulated by the
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United States Supreme Court in Strickland v. Washington, 466 U.S. 668,
687 (1984), and as applied in Commonwealth v. Pierce, 527 A.2d 973 (Pa.
1987). Commonwealth v. Simpson, 66 A.3d 253 (Pa. 2013).
The Pierce test requires a PCRA petitioner to prove:
(1) the underlying legal claim was of arguable merit;
(2) counsel had no reasonable strategic basis for his
action or inaction; and (3) the petitioner was
prejudiced—that is, but for counsel’s deficient
stewardship, there is a reasonable likelihood the
outcome of the proceedings would have been
different.
Id. at 260, citing Pierce, 527 A.2d at 975.
This court has explained that a petitioner “must meet all three prongs
of the test for ineffectiveness[.]” Commonwealth v. Charleston, 94 A.3d
1012, 1020 (Pa.Super. 2014) (citation and internal quotation marks omitted),
appeal denied, 104 A.3d 523 (Pa. 2014). “[C]ounsel is presumed to be
effective and the burden of demonstrating ineffectiveness rests on appellant.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation
omitted), appeal denied, 30 A.3d 487 (Pa. 2011). Additionally, we note that
counsel cannot be found ineffective for failing to raise a claim that is devoid
of merit. See Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).
Instantly, appellant contends that trial counsel was ineffective failing to
file a motion to suppress the computer seized from his residence because the
search warrant application was stale. (Appellant’s brief at 4). In support of
this contention, appellant argues that “[Task Force] Agent [Kurt] Smith
discovered the child pornography [o]n January[ 29,] 2014 [and] . . . did not
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apply for a search warrant to search [appellant’s] home until over [four]
months later [o]n June[ 3,] 2014.” (Id. at 7 (timeframe corrected).)
Appellant maintains that the PCRA court’s reliance on Commonwealth v.
Gomolekoff, 910 A.2d 713 (Pa.Super. 2006), is misplaced and cites a number
of cases to the contrary. (See appellant’s brief at 8-12.)
Upon review, we find that appellant’s ineffectiveness claim fails because
he failed to satisfy the first prong of the Pierce test; namely, that the
underlying legal claim was of arguable merit. See Simpson, 66 A.3d at 260.
In reaching this conclusion, we note that trial counsel testified at the
March 26, 2019 evidentiary hearing that staleness was a frivolous suppression
claim:
Q. [Trial counsel], did you consider whether or not
you should have filed a motion to suppress
based on what we say is stale information in the
warrant application?
A. I did but because, frankly, what I thought was
relevant and compelling case law of the fact that
in cases of child pornography the staleness rules
are much more relaxed and that the
Commonwealth had the ability to show that this
was the type of crime where a Defendant would
keep things around for a long period of time and
tend not to get rid of them. Unlike in, like,
narcotic cases where if you are selling drugs
they are going to be constantly selling them.
Q. Do you recall any specific cases that you, in fact,
relied on?
A Not at this time. At that time, I did research
and I know there are several Superior Court and
at least one or two Supreme Court cases dealing
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with this issue that -- especially given the
circumstances where a Defendant is likely to
keep things around the staleness rules are much
more relaxed.
....
Q. And based on your judgment you thought a
staleness motion would be meritless; is that
right?
A. Yes, that’s why I didn’t file it. I figured go with
the two strongest arguments we had and not
add something that I felt that was frivolous that
would distract the Court’s attention from the
main argument.
Notes of testimony, 3/26/19 at 4-5. We agree with trial counsel’s assessment.
Appellant’s argument, while potentially relevant to many other types of
crime, is not applicable to an investigation into child pornography evidence.
Generally, it is well settled in this Commonwealth “that stale information
cannot provide probable cause in support of a warrant.” Commonwealth v.
Hoppert, 39 A.3d 358, 363 (Pa.Super. 2012) (citation omitted), appeal
denied, 57 A.3d 68 (Pa. 2012). In Gomolekoff, a panel of this court held
that:
Age of the information supporting a warrant
application is a factor in determining probable
cause. . . . Age alone, however, does not
determine staleness. The determination of probable
cause is not merely an exercise in counting the days
or even months between the facts relied on and the
issuance of the warrant. Rather, we must also
examine [1.] the nature of the crime and [2.] the
type of evidence.
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Gomolekoff, 910 A.2d at 713 (citation and internal quotation marks omitted;
emphasis and numeration added).
Gomolekoff involved the execution of a search warrant by police in
Kansas based on their discovery of child pornography in two emails from
November 2003, wherein Gomolekoff, a resident of Pennsylvania, was one of
the recipients. Id. at 712. That information was not forwarded to authorities
in Pennsylvania until June 2004, and in August 2004, police obtained a search
warrant for Gomolekoff’s home based on that information and subsequently
discovered child pornography on four of his computers. Id.
Gomolekoff challenged the August 2004 warrant on staleness grounds,
but the trial court denied his suppression motion. Id. On appeal, a panel of
this court rejected Gomolekoff’s argument that the 9½-month gap between
the initial discovery of the child pornography and the execution of the search
warrant rendered the evidence of the child pornography stale, based on the
two aforementioned factors unique to child pornography cases. Id. at 713.
In reaching this conclusion, the Gomolekoff court reasoned that individuals
who possess child pornography “rarely, if ever, dispose of child
pornography[]” and “will protect and retain child pornography for long periods
of time because it is illegal and difficult to obtain.” Id. at 714 (citations
omitted).
Similarly, in the instant matter, the 4- to 5-month gap between law
enforcement’s initial discovery of evidence that appellant possessed child
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pornography and the execution of the warrant at appellant’s residence did not
render the evidence in question stale. As recognized by the PCRA court, the
delay in executing the warrant in this case (4 to 5 months) was approximately
half of that involved in Gomolekoff (9½ months). (See PCRA court opinion,
5/8/19 at 4.4) Based on the foregoing, we conclude that appellant’s staleness
claim is devoid of arguable merit, and trial counsel cannot be found ineffective
for failing to pursue this meritless claim. See Ligons, 971 A.2d at 1146.
Accordingly, we affirm the PCRA court’s May 8, 2019 order denying
appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/27/2020
4 The PCRA court’s opinion does not contain pagination; for the ease of our
discussion, we have assigned each page a corresponding number.
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