Com. v. Metts, L.

J-S52025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAMAR METTS,
Appellant No. 3011 EDA 2013
Appeal from the PCRA Order entered September 27, 2013,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0007220-2008
BEFORE: GANTMAN, P.J., ALLEN and FITZGERALD*, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 26, 2014
pro se from the order denying his
sections 9541-46. We affirm.
On March 25, 2009, Appellant was found guilty of two firearm
violations. On May 18, 2009, the trial court sentenced Appellant to an
aggregate term of six to twelve years of imprisonment, as well as a
appeal was reinstated nunc pro tunc, Appellant later discontinued his appeal.
On March 18, 2011, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, and on April 13, 2013, PCRA counsel filed an
amended petition. The Commonwealth filed a response, after which the
*Former Justice specially assigned to the Superior Court.
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amended PCRA petition without a hearing. On August 30, 2013, PCRA
counsel filed a response. By order entered September 27, 2013, the PCRA
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court denied A
Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
Appellant raises the following issue:
I) WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO MOVE TO SUPPRESS ILLEGALLY OBTAINED
EVIDENCE OF THE UNLAWFUL TERRY INVESTIGATIVE
DETENTION AND ILLEGAL SEIZURE OF APPELLANT
ABSENT PROBABLE CAUSE AND REASONABLE SUSPICION
I SECTION 8 OF THE PENNSYLVANIA CONSTITUTION AND
THE FOURTH AMENDMENT OF THE UNITED STATES
CONSTITUTION.
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
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On February 20, 2014, the PCRA court conducted a Grazier hearing and
entered an order permitting PCRA counsel to withdraw and allowing
Appellant to proceed pro se. See generally, Commonwealth v. Grazier,
713 A.2d 81 (Pa. 1998).
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1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
is patently frivolous and is without a trace of support in either the record or
from other evidence. Commonwealth v. Jordan, 772 A.2d 1011, 1104
(Pa. Super. 2001).
To be entitled to relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that the conviction or sentence
arose from one or more of the errors enumerated in section 9543(a)(2) of
the PCRA. One such error involves the ineffectiveness of counsel.
To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must establish 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.
Commonwealth v. Johnson
counsel will only be deemed ineffective upon a sufficient showing by the
Johnson, 966 A.2d at 532. This requires the petitioner to
demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his or her action or inaction; and (3)
petitioner was prejudiced by counsel's act or omission. Id. at 533. A
finding of "prejudice" requires the petitioner to show "that there is a
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result of the proceeding would have been different." Id. In assessing a
claim of ineffectiveness, when it is clear that appellant has failed to meet the
prejudice prong, the court may dispose of the claim on that basis alone,
without a determination of whether the first two prongs have been met.
Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel
cannot be deemed ineffective for failing to pursue a meritless claim.
Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc),
appeal denied, 852 A.2d 311 (Pa. 2004).
Appellant claims that trial counsel was ineffective for failing to file a
subjected to an unlawful investigative detention and illegal seizure
[premised] on nothing more than an anonymous call giving a vague
description and location, without any predictive information about
is based upon the failure to pursue a suppression motion, proof of the merit
of the underlying suppression claim is necessary to establish the merit of the
ineffective assistance of Commonwealth v. Carelli, 546
A.2d 1185, 1189 (Pa. Super. 1988) (citations omitted). The PCRA court
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The Superior Court should affirm the denial of the PCRA
petition because there is no merit to the allegations of
ineffectiveness contained therein. The events in question
do not constitute a Terry search or seizure. Furthermore,
[Appellant] abandoned or relinquished the gun when he
saw the officers.
The trial testimony indicates that the police officers
received an anonymous telephone call that five men with
Chester, PA. As they entered the deli, [Appellant] took out
a gun and dropped it to the ground. Another one of the
men did likewise. The officers then secured
the area, arrested [Appellant] and the others, and
charged [Appellant] with various counts of unlawful
possession of a firearm.
PCRA Court Opinion, 4/14/14, at 5.
conclusion that,
since Appellant was not seized, a suppression motion would have been
meritless. Thus, trial counsel cannot be deemed ineffective for failing to file
a suppression motion. Loner, supra. There is no support in the record for
claim within his amended PCRA petition that the officers
See
Trial Court Opinion, 4/14/14, at 5. Our review indicates that neither the
police officers nor Appellant testified to these facts. Rather, the record
reveals that as soon as the police officers entered the store, they saw
Appellant release a gun from his hand to the floor. N.T., 3/24/09, at 15.2
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Appellant also refers to the PCRA court opinion which stat
Once again, there is no record support for this conclusion.
(Footnote Continued Next Page)
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In sum, because a suppression motion would have been meritless,
l counsel was not ineffective. We therefore agree with the
conclude that the PCRA court did not err in dismissing the petition without a
hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2014
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(Footnote Continued)
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