MEMORANDUM
McCAFFERY, J.
Calvin
Labron Jones Jr. (Appellant) appeals from the order entered
February 17, 2021 in the Dauphin County Court of Common Pleas
dismissing his initial, timely petition filed under the Post
Conviction Relief Act (PCRA).[1]We affirm.
The
trial court summarized the factual history as follows:
On the evening of December 8, 2017, Officer Chad McGowan of
the Harrisburg Bureau of Police was working as a [s]treet
[c]rimes [u]nit [o]fficer with Probation Officer Dan
Kinsinger. They came across an individual by the name of
Curtis Hall [("Curtis")] in the 1300 block of
Swatara Street, a high crime/drug area of Harrisburg[,
Pennsylvania]. Officer McGowan testified that the initial
reason why they stopped in that area was because his partner
recognized Curtis[, who] was standing next to a silver
minivan. Officer Kinsinger initiated contact with Curtis, who
was with his brother Donell Hall [ ("Donell") ] at
the time.
Officer McGowan exited his vehicle to assist Officer
Kinsinger. As he walked over to the minivan, he observed a
male, later identified as [Appellant], sitting in the
driver's seat. As Officer McGowan approached, [Appellant]
got out of the vehicle and started to walk towards him.
According to Officer McGowan, while Curtis and Donell did not
appear to be at all affected by the police presence,
[Appellant] appeared very nervous, talkative, excited, and
looked as though he was trying to distance himself from the
[minivan]. [Appellant] asked to talk to [Officer McGowan] in
private, away from [Curtis and Donell], and told him that he
was actually working undercover for the [Pennsylvania] State
Police, and had previously done work for former Chief Deputy
District Attorney Johnny Baer. [Appellant] told Officer
McGowan that the officers' presence was [interfering
with] the undercover operation. It appeared to Officer
McGowan that [Appellant] was [attempting to use] various
[distraction techniques to avoid inquiry by the officer].
Through the [minivan's] lowered window, Officer McGowan
saw an open, partially consumed bottle of brandy on the front
passenger seat. He asked for and [received Appellant's
identification card] and asked if [Appellant] had anything
illegal on his person. [Appellant] said he did not, and then
consented to a search of his person. The only thing found by
Officer McGowan was a folded stack of lottery tickets.
Officer McGowan then asked for permission to search the
minivan. [Appellant] said yes, but then told the officer that
it was his girlfriend Khailah Layton's vehicle, and he
would feel better if they called her first to get her
consent. When asked if there were any drugs or firearms
inside the [minivan], [Appellant] told Officer McGowan that
he believed his girlfriend left a [gun] in the [minivan].
Officer McGowan asked exactly where [the] gun was located,
and [Appellant] told him Ms. Layton left the gun inside her
purse on the second[-]row bench seat. They made contact with
Ms. Layton and received her consent to search the vehicle.
During the search of the [minivan], Officer McGowan found the
[gun] directly underneath the second[-]row bench seat, within
arm's reach of the driver's seat. There was no purse,
only the gun. It was a nine-millimeter semi-automatic Smith
and Wesson pistol and was fully-loaded, with a round in the
chamber. The firearm was registered to Ms. Layton.
[Appellant's] explanation for the gun being in the
[minivan] was
that he, Ms. Layton, and their children had been grocery
shopping and Ms. Layton had left her purse inside the
[minivan]. [Appellant] was subsequently arrested by Officer
McGowan.
When asked who owned the [minivan], Ms. Layton testified that
it was not owned by her; rather, it was a loaner [vehicle]
given to her from the dealership after she experienced car
trouble. At trial Ms. Layton testified that she, [Appellant],
and their daughter had gone grocery shopping on the evening
in question, although the statement given to the police that
night indicated that [Appellant] had not gone shopping with
them. Ms. Layton testified that the gun was in her purse, as
she had forgotten to take it out, and when they got to the
grocery store[, ] she did not want it with her. She claimed
to have put it under the [front] passenger seat. Ms. Layton
testified that she was carrying a loaded gun because a
woman[, ] who [Appellant] had a relationship with[, ] was
stalking and harassing her.
[Appellant] took the stand and first admitted that he had [
]a prior conviction for false identification to law
enforcement. He asserted that he had already been in the
process of getting out of the minivan when the officers
[arrived on] the evening in question, and [he] had been at
that location to speak to Curtis. He testified that he did
not know that the firearm was in the [minivan] when he gave
Officer McGowan consent to search the [vehicle]. Contrary to
Officer McGowan's testimony, he claimed that Officer
McGowan never asked if there was anything illegal in the
vehicle and that [Appellant] never revealed that he knew
there was a gun in the [minivan]. Rather, [Appellant's]
testimony was that he called his girlfriend on speaker-phone
and told her he was with the police. According to
[Appellant], Ms. Layton responded by asking why he [was not]
answering his phone, told him she left her firearm in the
[minivan], and asked where he was. Officer McGowan was
re-called as a witness to clarify that [Appellant] made an
admission that there was a firearm inside the vehicle, and
was specific about its whereabouts. [Officer McGowan] was
given this information prior to searching the [minivan].
Trial Court Opinion, 9/30/19, at 1-4 (record citations and
footnote omitted); see also Pa.R.Crim.P. 907 Notice, 1/22/21,
at 2 n.1. Appellant appealed from his June 17, 2019 judgment
of sentence ordering him to serve 50 to 100
months' imprisonment and to pay a $500 fine and costs
after a jury convicted Appellant of persons not to possess
firearms.[2] This Court affirmed, rejecting
Appellant's claims sounding in sufficiency and weight of
the evidence. Commonwealth v. Jones, 1189 MDA 2019
(unpub. memo.) (Pa. Super. May 22, 2020). No petition for
allowance of appeal was docketed.
Appellant
filed a pro se PCRA petition on August 6, 2020. His
petition was filed within one year of his sentence becoming
final, and thus it was timely filed per 42 Pa.C.S §
9545(b)(1). The trial court appointed counsel, and on
November 10, 2020, counsel filed a letter of no merit
pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988) (en banc). On January 22, 2021,
the trial court issued a notice of its intention to dismiss
the petition without a hearing pursuant to Pa.R.A.P. 907. The
trial court permitted counsel to withdraw, and on February
17th, entered a final order dismissing Appellant's
petition. On February 26th, Appellant filed the present
appeal.
Appellant
brings the following claims for our review:
I. Whether trial counsel was ineffective for failing to file
a motion to suppress any and all evidence obtained from the
warrantless search of Appellant's vehicle?
II. Whether trial counsel was ineffective for failing to
object to the illegal detention and subsequent search [of
Appellant and the vehicle]?
III. Whether trial counsel was ineffective for failing to
interview or call witnesses for trial?
Appellant's Brief at vii (unpaginated).[3]
Appellant's
first two ineffectiveness claims relate to suppression. The
trial court analyzed these claims as follows:
Here, the officer had the requisite reasonable suspicion to
detain [Appellant] and request consent to search his minivan
when [the officer] spotted an open container of brandy in
[Appellant's] vehicle while talking to [Appellant]. [ ]
Moreover, during his own testimony, [Appellant] stated that
prior to the interaction with the officer, "[W]e was
having a drink, that's why I had a bottle, you know, of
brandy and just was, you know, feeling good."
Notice Pursuant to Pa.R.Crim.P. 907 of Intention to Dismiss
Petition for [PCRA] Relief [(907 Notice)], 1/22/21, at
5.[4]
Our independent review of the record confirms that the
investigating officer saw the open bottle of brandy in the
minivan prior to asking Appellant for his identification.
See N.T. Trial, 4/9-4/11/19, at 75-77 (one volume).
"The officer witnessed [Appellant] commit a summary
offense by having an open container of alcohol in his vehicle
on a public highway. See 75 Pa.C.S. §
3809(a)." 907 Notice at 5.
When
considering an order dismissing a PCRA petition, "[t]he
standard of review ... is whether that determination is
supported by the evidence of record and is free of legal
error. The PCRA court's findings will not be disturbed
unless there is no support for the findings in the certified
record." Commonwealth v. Williams, 220 A.3d
1086, 1090 (Pa. Super. 2019) (citation omitted). There is no
absolute right to a PCRA hearing, and we review dismissal
without a hearing "to determine whether the PCRA court
erred in concluding that there were no genuine issues of
material fact and in denying relief without an evidentiary
hearing." Commonwealth v. Burton, 121 A.3d
1063, 1067 (Pa. Super. 2015) (en banc). Counsel is
presumed to have been effective, and the petitioner must bear
the burden of proving ineffectiveness....
