Commonwealth v. Riley, 1868 EDA 2020

• Decision Date: 22 September 2021
• Docket Number: 1868 EDA 2020,J-A17030-21
• Parties: COMMONWEALTH OF PENNSYLVANIA Appellee v. DWAYNE RILEY Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA Appellee v. DWAYNE RILEY Appellant

No. 1868 EDA 2020

No. J-A17030-21

Superior Court of Pennsylvania

September 22, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered September 21, 2020 In the Court of Common Pleas of Bucks County Criminal Division at No(s) CP-09-CR-0001141-2015

BEFORE: McLAUGHLIN, J., KING, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

KING J.

Appellant Dwayne Riley, appeals pro se from the order entered in the Bucks County Court of Common Pleas, which denied his first petition filed under the Post Conviction Relief Act ("PCRA").^[1] We affirm.

The facts were summarized as follows at Appellant's guilty plea hearing:

On May 5, 2014, [Officer Gansky] along with other officers was conducting an investigation into several prostitutes that were running a business out of the Neshaminy Inn located at 2345 Old Lincoln Highway in Bensalem Township.

In doing so they discovered through one of the individuals that they came in contact with that she had been in contact with [Appellant] via a cell phone. That individual showed Officer Gansky her phone. He observed text messages that said "I got that white girl, Perc 15's and loud."

Officer Gansky immediately recognized that to mean that the individual had cocaine, Percocets and marijuana.

What he did was he arranged with the confidential informant, the woman that had been found at the hotel, for a phone call to be made with [Appellant]. That phone call did, in fact, occur. It occurred on speakerphone. And Officer Gansky then heard [Appellant] on speakerphone saying that he, in fact, had an eighth of marijuana, white girl and percs. He indicated he had $60 worth of cocaine on him.

[Appellant] then asked where were the females, and the confidential informant advised that she was at the Neshaminy Inn.

A short time later [Appellant] arrived at the Neshaminy Inn. He was observed getting out of his vehicle and approaching Room 111, which is where the confidential informant told him she was, and knocked on the door.

When he knocked on the door, Officer Gansky was waiting for him. He was then apprehended and found to be in possession of $481, three bags of marijuana, four bags of cocaine, half an orange pill and 111 pills that were later determined to be Percocets.

There was an interview conducted, and during that interview Officer Gansky spoke to [Appellant] who indicated that he, in fact, was going to trade marijuana and cocaine in exchange for sex.

[Appellant] further admitted that he does sell the Percocets as well as the cocaine. He sells the Percocets for $10 a pill and the cocaine for $60.

(N.T. Guilty Plea Hearing, 12/5/16, at 8-11).

On November 23, 2016, Appellant filed a pretrial motion to suppress evidence found on his person and his subsequent statements to police, alleging that the police lacked probable cause to arrest him. The court held a suppression hearing on November 29, 2016. At the conclusion of the hearing, the court denied Appellant's motion. On December 5, 2016, Appellant entered an open guilty plea to three counts of possession with intent to deliver a controlled substance ("PWID"). On that same day, the court sentenced Appellant to an aggregate term of four to eight years' incarceration. Appellant timely filed a post-sentence motion on December 12, 2016. The court denied that motion on December 21, 2016. Appellant did not file an appeal.

On May 8, 2017, Appellant timely filed a PCRA petition. The court appointed counsel, who filed an amended PCRA petition on August 17, 2017. On February 28, 2018, the court permitted Appellant to file a supplemental post-sentence motion nunc pro tunc. Appellant timely filed a supplemental post-sentence motion nunc pro tunc on March 8, 2018. Following a hearing, on May 3, 2018, the court reduced Appellant's aggregate sentence to three to six years' incarceration plus five years' probation. Appellant did not file an appeal.

On February 25, 2019, Appellant timely filed the current pro se PCRA petition. The court appointed PCRA counsel on March 13, 2019. Appellant filed a pro se supplemental PCRA petition on July 19, 2019. On August 23, 2019, Appellant filed a second pro se supplemental PCRA petition. Appointed counsel filed a Turner/Finley^[2] no-merit letter on September 17, 2019. On October 3, 2019, Appellant filed a pro se response objecting to counsel's no merit letter. The Commonwealth filed its response to Appellant's objection on November 19, 2019. On December 6, 2019, Appellant filed a pro se reply to the Commonwealth's response. Appellant filed another pro se supplemental response raising PCRA counsel's ineffectiveness on December 23, 2019.

On May 22, 2020, the court issued notice of its intent to dismiss all of Appellant's claims without a hearing per Pa.R.Crim.P. 907, except his claim that prior counsel was ineffective for failing to file a direct appeal challenging the sentence imposed on May 3, 2018. The court held a hearing solely on this issue on July 2, 2020. On July 8, 2020, Appellant filed a pro se supplemental amended PCRA petition. The court issued another Rule 907 notice on July 21, 2020. On August 13, 2020, Appellant filed a pro se response. The court denied Appellant's PCRA petition, and it granted counsel's petition to withdraw on September 8, 2020. On September 21, 2020, the court vacated its September 8^th order, because it had failed to advise Appellant of his appellate rights. On that same day, the court issued a new order denying Appellant's PCRA petition. On October 7, 2020, Appellant timely filed a pro se notice of appeal. The court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and none was filed.

Appellant raises these three issues on appeal:

Whether PCRA counsel was ineffective for failing to amend [his] claim that, before advising Appellant to plead guilty, plea counsel was ineffective for failing to move and successfully suppress evidence found during an unlawful Terry^[3] pat and frisk search.

Whether [the] PCRA court erred in allowing counsel to withdraw and dismissed, without a hearing, Appellant's claim that plea counsel was ineffective for failing to move to suppress statements before advising Appellant to plead guilty, causing Appellant to enter an unknowing and involuntary plea.

Whether PCRA court erred in allowing counsel to withdraw and dismissed, without a hearing, Appellant's claim that plea counsel was ineffective for failing to move to suppress evidence found during an unlawful Terry pat and frisk search before advising Appellant to plead guilty, causing Appellant to enter an unknowing and involuntary plea.

(Appellant's Brief at vi).

Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings. Commonwealth v. Wah, 42 A.3d 335 (Pa.Super. 2012).

For purposes of disposition, we combine Appellant's first and third issues. Appellant argues that plea counsel was ineffective for advising Appellant to plead guilty without first "moving to suppress evidence found during an unlawful Terry pat and frisk."^[4] (Appellant's Brief at 7). Appellant concedes that plea counsel filed a suppression motion, but he asserts that motion only alleged that the police did not have probable cause to arrest and search him. Appellant maintains that the officers unlawfully searched inside his pockets, rather than merely patting down the outside of his clothing. Further, Appellant alleges that the court did not evaluate whether the officers conducted a proper Terry search because plea counsel failed to raise that argument.

Appellant claims that arguable merit exists to support his position because had counsel filed this motion, the contraband discovered inside his pockets would have been suppressed. Appellant avers that plea counsel did not have a reasonable basis for failing to challenge this search as a violation of Terry. Appellant reasons that plea counsel's failure to challenge the unlawful Terry pat down caused him to enter an involuntary and unknowing guilty plea. Appellant contends that he suffered prejudice because had this motion been filed the evidence would have been suppressed, and he would not have pled guilty. Appellant also alleges PCRA counsel's ineffectiveness for failing to amend his PCRA petition to include this claim. Appellant concludes that this Court should sua sponte "declare the illegally obtained evidence suppressed and [Appellant's] guilty plea involuntary and remand the matter back to Bucks County for a new trial." (Appellant's Brief at 33). We disagree.

Pennsylvania law presumes counsel has rendered effective assistance. Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When asserting a claim of ineffective assistance of counsel, the petitioner is required to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for...