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11/20/97 COMMONWEALTH PENNSYLVANIA v. JAMES M.

November 20, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JAMES M. FOWLER, APPELLANT



Appeal from the Order of Superior Court entered on January 11, 1996 at 0414HBG94 affirming the Order of the Court of Common Pleas of Lycoming County at No. 91-10, 423. JUDGE(S) BELOW: CCP - Hon. Kenneth D. Brown, J. / SUPERIOR - ROWLEY, P.J., CAVANAUGH, BECK, TAMILIA, KELLY, JOHNSON, HUDOCK, FORD ELLIOTT, SAYLOR, JJ.

Before: Flaherty, C.j., Zappala, Cappy, Castille, Nigro and Newman, JJ. Messrs. Justice Zappala, Cappy and Nigro concur in the result.

The opinion of the court was delivered by: Newman

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

MADAME JUSTICE NEWMAN

DECIDED:NOVEMBER 20, 1997

James Michael Fowler (Fowler) appeals an Order of the Superior Court affirming the Order of the Court of Common Pleas of Lycoming County, which denied the petition for relief pursuant to the Post Conviction Relief Act 42 Pa.C.S. §§ 9541 et seq. We affirm the Order of the Superior Court.

FACTS AND PROCEDURAL HISTORY

In July 1990, Pennsylvania State Trooper Al Diaz was working with William Fern as a confidential informant. Fern had been purchasing controlled substances from Michael Parker, who was obtaining drugs from a third party. On July 11, 1990, Trooper Diaz followed Fern to Parker's residence, but Parker did not have any cocaine. Parker told Fern that he could get him marijuana elsewhere, and they drove to Fowler's house. *fn1 Fern stayed in the car while Parker went in and purchased marijuana from Fowler. Parker was not cooperating with the Commonwealth on July 11, 1990, but shortly after that the police arrested him and he agreed to cooperate with the Commonwealth as a confidential informant.

On October 31, 1990, Trooper Ronald Clark placed a tape-recording device under Parker's clothes and gave him prerecorded money to make a purchase of marijuana from Fowler. Parker then went to Fowler's house and purchased marijuana from him while tape-recording the transaction. The police subsequently arrested Fowler and charged him with controlled substance offenses stemming from the July 11 and October 30, 1990 transactions.

During a jury trial on August 21 - 23, 1991, the Commonwealth presented the testimony of Fern, Parker, Trooper Diaz and Trooper Clark. The Commonwealth also played the tape recording for the jury. The defense strategy was to portray Fowler as a marijuana user, rather than a dealer, and he denied ever selling marijuana to Parker. Although Fowler admitted that he discussed marijuana with Parker, he used portions of the tape-recorded conversation to corroborate his claim that he discussed giving Parker tobacco cigarettes, rather than marijuana. The jury found Fowler guilty of the following charges stemming from the October 31, 1990 transactions: possession with intent to deliver marijuana, *fn2 delivery of marijuana, *fn3 and possession of marijuana. *fn4 The jury found Fowler not guilty of all charges related to the July 11, 1990 sale of marijuana. The trial court denied post-verdict motions and sentenced Fowler to eight to twenty-three months incarceration. The Superior Court affirmed the judgment of sentence on December 17, 1992. Commonwealth v. Fowler, 428 Pa. Super. 614, 626 A.2d 644 (1992).

Fowler then retained new counsel, who filed a PCRA Petition in the Court of Common Pleas of Lycoming County on January 7, 1994. After oral argument, the PCRA court denied the PCRA petition without an evidentiary hearing. This Court granted Fowler's Petition for Allowance of Appeal limited to the issue of whether trial counsel was ineffective because he did not move to suppress evidence of the tape-recorded conversation based on the Superior Court's decision in Commonwealth v. Schaeffer, 370 Pa. Super. 179, 536 A.2d 354 (1987), in which the Superior Court held that the police must obtain a "warrant" before they intercept a conversation in a defendant's home.

Discussion

I. Ineffective Assistance of Counsel

The Legislature has set forth specific requirements a petitioner must meet to be eligible for relief pursuant to the PCRA. 42 Pa.C.S. § 9543. When a PCRA petitioner claims that a prior attorney was ineffective, he or she must prove that the conviction resulted from "ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). The law is well settled in Pennsylvania that trial counsel is presumed to have been effective. Commonwealth v. Roberts, 545 Pa. 460, 681 A.2d 1274 (1996); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). To defeat this presumption and warrant relief, a defendant must prove that the underlying claim is of arguable merit, counsel had no reasonable basis for the act or omission in question, and but for counsel's act or omission, the outcome of the proceedings would have been different. Commonwealth v. Appel, 547 Pa. 171, 689 A.2d 891 (1997). Counsel can never be deemed ineffective for failing to raise a claim that has no merit. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).

It is well settled that the adequacy of trial counsel's representation will be assessed based on the law as it existed at the time of the representation. Commonwealth v. Pizzo, 529 Pa. 155, 602 A.2d 823 (1992); Commonwealth v. Johnson, 516 Pa. 407, 532 A.2d 796 (1987); Commonwealth v. Brewer, 479 Pa. 558, 388 A.2d 1071 (1978). Counsel cannot be found ineffective for failing to foresee or predict changes in the law. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).

In Triplett, the defendant was arrested for murder and related charges, and he made an incriminating statement when the police questioned him. The defendant was sixteen years old at the time of his arrest, and both his parents and his attorney were not present when he waived his Miranda *fn5 rights. Defense counsel filed a motion to suppress the statement, which the trial court denied. After the commencement of trial, the parties reached a plea agreement and ...


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