Com. v. Rivera, O.

J-S28024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OLIVER EMILIO RIVERA :
:
Appellant : No. 1131 MDA 2018
Appeal from the PCRA Order Entered June 11, 2018
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002592-2014
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 27, 2019
Oliver Rivera appeals from the Order of the Court of Common Pleas of
Luzerne County that denied his petition filed under the Post-Collateral Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Rivera claims counsel was
ineffective for failing to file a motion to suppress evidence seized pursuant to
a search warrant. We affirm.
The following is taken from the affidavit of probable cause in support of
the warrant. In February 2014, agents from the Pennsylvania Office of
Attorney General (“OAG”) conducted a sting operation in the parking lot of the
Giant food store in Hazleton. The operation took place based on information
from a confidential informant (“CI”) who arranged to buy heroin from Rivera’s
codefendant, Rachel Rebarchick. At the appointed time and place, Rebarchick
arrived with Rivera in a Honda Accord; the CI was waiting in the parking lot
____________________________
* Retired Senior Judge assigned to the Superior Court.
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in another vehicle. Rebarchick got into the CI’s vehicle, while Rivera got into
a Pontiac Grand Am. Rebarchick then sold 499 packets of heroin to the CI,
after which she got back into the Accord.
Subsequently, OAG agents stopped the vehicles carrying Rebarchick and
Rivera. The agents found Rivera in possession of 200 packs of heroin, 18
grams of cocaine, and 3.5 grams of crack cocaine, and they took him into
custody. Rebarchick waived her Miranda rights and told agents that Rivera
had supplied the heroin she had sold to the CI. She said he told her to give
the heroin to the CI, and to get the money from the CI to give to him.
Rebarchick also said that Rivera had come to the parking lot from 541 North
Locust Street in Hazleton.
That same day, OAG agents received additional information about
Rivera from a “known but unnamed” confidential source (“CS”). Aff. of
Probable Cause at 3, R.R. 38. The CS said that Rivera and others used the
second-floor apartment at 541 North Locust Street in Hazleton as a
“workhouse” to package heroin and cocaine. The CS stated that he/she
observed numerous incriminating items on the day before the sting operation
while in the apartment with Rivera: a black duffle bag “filled with dope,”
heroin, cocaine, a scale on the counter, and packaging materials for drugs.
The CS also said that Rivera had a key to the apartment.
A magisterial district judge issued a warrant for 541 North Locust Street
in Hazleton. When agents executed it, they recovered heroin, cocaine, a digital
scale, and bail bond paperwork in the name of Oliver Rivera.
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Rivera initially hired Mark Mack, Esquire to represent him. N.T.,
5/30/18, at 2-3. However, the trial court allowed Mack to withdraw as counsel
and Thomas Cometa, Esquire entered his appearance on behalf of Rivera.
Rivera pled guilty in December 2015 to one count of possession with intent to
deliver 310.75 grams of cocaine and one count of possession with intent to
deliver 122.9 grams of heroin. However, Rivera moved to withdraw his guilty
plea and the trial court granted the motion.
Rivera then switched counsel several times. He first filed a Motion to
Proceed Pro Se, but the trial court did not rule on that motion, evidently
because the day after he filed it, a new lawyer, Brian Corcoran, Esquire of the
Luzerne County Public Defender’s Office, entered his appearance on Rivera’s
behalf. However, the Public Defender’s Office moved for conflict counsel, and
the trial court granted the motion and appointed Mary Deady, Esquire.
Although Deady moved to suppress the evidence seized pursuant to the
warrant, the court dismissed the motion as untimely.
Eventually, Rivera again pled guilty to the same offenses as those to
which he had previously pled guilty, and the court sentenced him to eight to
16 years of incarceration. Rivera did not file a post-sentence motion or an
appeal. He did file a timely pro se PCRA petition, and subsequently, an
amended pro se PCRA petition. Paul Walker, Esquire later entered his
appearance on behalf of Rivera and filed an amended PCRA petition. The
petition claimed, among other things, that all prior counsel were ineffective
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for failing to move to suppress the evidence seized from the apartment
because Rivera was allegedly not in Hazleton on the day in question.
At a hearing, Rivera narrowed his claims to argue only that his first
lawyer, Mack, was ineffective for failing to a file a motion to suppress,
contending that Mack had represented Rivera “during the period within which
the motions had to be filed.” N.T., 5/30/18, at 42. Rivera testified that he was
in Baltimore on the day of the controlled buy, which made it impossible for
him to be in Hazleton on that date, as was alleged in the affidavit of probable
cause. Id. at 12-14, 24-25. He stated that he left his residence in Drums,
Pennsylvania between approximately 7:30 a.m. and 8:30 a.m. on that day to
travel to Baltimore. Id. at 15, 36. As support, Rivera presented a YouTube rap
video that he claimed he appeared in and filmed in Baltimore on the day of
the sting operation. Id. at 24. He testified that he told Mack of his alibi and
the video and asked him to file a motion to suppress based on this information,
but Mack had not done so despite his repeated requests. Id. at 5-7, 10, 15,
25-26. No other witnesses testified at the PCRA hearing on Rivera’s behalf and
Mack was not present at the PCRA hearing. Id. at 34.
The PCRA court denied Rivera’s petition and Rivera filed the instant
timely appeal raising three issues:
I. Whether, the Lower Court erred in denying Appellant’s
Amended Petition For Post-Conviction for Collateral Relief
when it found that probable cause existed for the issuance
[of a] warrant thus obviating any merit to a suppression
motion.
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II. Whether, the Lower Court erred in finding that
Appellant’s attorneys made a strategic decision in not filing
a Motion to Suppress.
III. Whether, [the] Lower Court erred in denying Appellant’s
Amended Post-Conviction Act Petition as Appellant was
prejudiced by his counsels’ failure to timely file a Motion [t]o
Suppress.
Rivera’s Brief, at 7.
We review an order denying relief under the PCRA to determine whether
the record supports the PCRA court’s findings and the decision is free of legal
error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We afford
the court’s factual findings deference if the record supports those findings.
Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa.Super. 2012). The
appellant has the burden of convincing this Court that the PCRA court erred
and that relief is due. Id.
There is a presumption that counsel is effective. Commonwealth v.
Andrews, 158 A.3d 1260, 1263 (Pa.Super. 2017). In order to prevail on a
claim that counsel was ineffective, the petitioner must establish three things:
“(1) his underlying claim is of arguable merit; (2) the particular course of
conduct pursued by counsel did not have some reasonable basis designed to
effectuate his interests; and, (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the challenged proceeding would
have been different.” Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa.
2003). “A failure to satisfy any prong of the ineffectiveness test requires
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rejection of the claim of ineffectiveness.” Commonwealth v. Daniels, 963
A.2d 409, 419 (Pa. 2009).
We will address Rivera’s three claims together, as all of his claims assert
that counsel was ineffective in failing to file a motion to suppress the evidence
obtained during the search of the North Locust Street apartment. To the
extent Rivera claims on appeal that counsel other than Mack was ineffective,
he has waived any such argument by narrowing his claim to Mack at the PCRA
hearing.
Specifically, Rivera argues that because he was in Baltimore, Maryland
on the day in question, the search warrant was defective because it relied on
the CS’s false statements. Rivera maintains that in the absence of a motion to
suppress, he never had the opportunity to demonstrate that the court issued
the search warrant based, in part, on false averments. Therefore, he contends
that he was denied the right to attack the averments in the affidavit of
probable cause and thus, was unable to challenge the validity of the warrant.
Where a petitioner alleges that counsel ineffectively failed to file a
suppression motion, “the inquiry is whether the failure to file the motion is
itself objectively unreasonable, which requires a showing that the motion
would be meritorious.” Commonwealth v. Johnson, 179 A.3d 1153, 1160
(Pa.Super. 2018). “Where the challenge is to a failure to move for suppression
of evidence, the defendant must establish that there was no reasonable basis
for not pursuing the suppression claim and that if the evidence had been
suppressed, there is a reasonable probability the verdict would have been
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more favorable.” Commonwealth v. Melson, 556 A.2d 836, 839 (Pa.Super.
1989).
Rivera’s ineffectiveness claim fails because his challenge to the warrant
lacks arguable merit. A search warrant must be supported by probable cause
in order to be valid. Commonwealth v. Johnson, 42 A.3d 1017, 1031 (Pa.
2012). Probable cause exists where:
the facts and circumstances within the affiant’s knowledge
and of which he has reasonably trustworthy information are
sufficient in themselves to warrant a man of reasonable
caution in the belief that a search should be conducted. In
considering an affidavit of probable cause, the issuing
magistrate must apply the “totality of the circumstances
test” which requires her to make a practical, common-sense
decision whether, given all of the circumstances set forth in
the affidavit ... including the veracity and basis of knowledge
of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be
found in a particular place. A court reviewing a search
warrant determines only if a substantial basis existed for the
magistrate to find probable cause.
Id. (citations and quotations omitted). Further, we accord deference to a
magistrate’s finding of probable cause, as probable cause is based on a finding
of the probability of criminal activity, not a prima facie showing.
Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa.Super. 2013). Moreover,
when determining whether the warrant was issued upon probable cause, we
must limit our inquiry to the information contained within the four corners of
the affidavit presented in support of probable cause. Id.
“While [this Court has] recognized that the veracity of facts establishing
probable cause recited in an affidavit supporting a search warrant may be
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challenged and examined, we have not suggested that every inaccuracy will
justify an exclusion of evidence obtained as a result of the search.”
Commonwealth v. Baker, 24 A.3d 1006, 1017 (Pa.Super. 2011) (quoting
Commonwealth v. Monte, 329 A.2d 836, 842 (Pa. 1974)) (citations
omitted). “[M]isstatements of facts will invalidate a search warrant and
require suppression of the fruits of the search only if the misstatements of fact
are deliberate and material.” Id. (quoting Commonwealth v. Tucker, 384
A.2d 938, 941 (Pa.Super. 1978)) (emphasis in Baker). Indeed, “[t]he
inclusion of false evidence will not invalidate a search warrant if the warrant
is based upon other information which is valid and sufficient to constitute
probable cause.” Tucker, 384 A.2d at 941.
The information contained in the affidavit was sufficient to establish
probable cause to issue the search warrant for the North Locust Street
apartment. The affidavit of probable cause stated that the affiant and other
agents had personally observed Rivera’s involvement in the drug transaction,
which took place only one day after the CS allegedly was with Rivera in the
apartment and had observed a black duffle bag “filled with dope,” heroin,
cocaine, a scale, and packaging materials for drugs. In addition, the CS said
Rivera had a key to the apartment. Rivera has supplied no evidence that the
CS’s statements were deliberate or material misstatements. Baker, 24 A.3d
at 1017.
Rivera’s claim that he was in Baltimore on the day that the CS alleged
that he/she was with Rivera in the North Locust Street apartment does not
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prove that the CS’s statements were false. His testimony at the PCRA hearing
was that he left his home in Drums between approximately 7:30 a.m. and
8:30 a.m. on the day in question to travel to Baltimore. This does not, in fact,
contradict the CS’s statements repeated in the search warrant. By Rivera’s
own account, Rivera was in Luzerne County on the day in question before he
left between 7:30 a.m. and 8:30 a.m. to travel to Baltimore. It was thus
entirely possible for Rivera to have been present at 541 North Locust Street
during the seven-and-a-half hour window between 12:00 a.m. and 7:30 a.m.
on the day in question. This was consistent with the CS’s statements in the
search warrant. As the PCRA court aptly stated:
[Rivera] seems to believe that because he left his residence
on Snow Valley Drive in Drums at 7:30 a.m. on February
16, 2014, he could not have been present at the 541 North
Locust Street apartment at any time prior thereto and that
this testimony somehow affects the validity of the search
warrant. Based upon the record before the court, [Rivera’s]
presence at the apartment on February 16, 2014 does not
negate the establishment of probable cause. [Rivera] did
not contest the accuracy of the search warrant with the
exception of his presence on the premises on February 16.
PCRA Court Opinion, filed June 15, 2018, at 5.
Accordingly, we conclude that the issuing authority in this case made “a
practical, common-sense decision” based on the totality of the circumstances
set forth in the affidavit that there was “a fair probability that contraband or
evidence of a crime” would be found at 541 North Locust Street. Johnson, 42
A.3d at 1031. Because the issuance of the search warrant was supported by
probable cause, Rivera’s trial attorneys were not ineffective for failing to file a
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motion to suppress that would not have been meritorious. “Trial counsel
cannot be held to be ineffective for failing to take futile actions or to raise a
meritless claim.” Commonwealth v. Howard, 645 A.2d 1300, 1304 (Pa.
1994).
Rivera’s challenge to the search warrant fails for an additional reason.
As the PCRA court pointed out, Rivera did not establish a privacy interest in
the North Locust Street apartment. In order to prevail on a motion to suppress
evidence, “a defendant is required to separately demonstrate a personal
privacy interest in the area searched or effects seized, and that such interest
was actual, societally sanctioned as reasonable, and justifiable.”
Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998) (citations and
quotations omitted). “Such a legitimate expectation of privacy is absent where
an owner or possessor meaningfully abdicates his control, ownership or
possessory interest.” Id. There was no evidence that Rivera had a personal
privacy interest in the North Locust Street apartment. Therefore, he could not
prevail on a motion to suppress and counsel cannot be held to have been
ineffective for failing to file a non-meritorious motion. Thus, Rivera is not
entitled to relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/27/2019
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