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BRODEUR v. PATRICK

July 19, 2004.

ANDRE J. BRODEUR, Jr. [DC-3877], Petitioner
v.
SUPT. GEORGE N. PATRICK, et al., Respondents.



The opinion of the court was delivered by: M. FAITH ANGELL, Magistrate Judge

REPORT AND RECOMMMENDATION

Presently before this court is a pro se Petition for Writ of Habeas Corpus, filed, pursuant to 28 U.S.C. § 2254, by a state prisoner. Petitioner is currently incarcerated at State Correctional Institution ("SCI") Houtzdale, Pennsylvania, where he is serving a sentence of eight and one half years to seventeen years for his involvement in "replating" and reselling stolen vehicles. For the reasons, which follow, it is recommended that the Petition for Writ of Habeas Corpus be denied and dismissed without an evidentiary hearing.

BACKGROUND

  On July 29, 1996, Petitioner entered a plea of not guilty before the Honorable R. Barclay Surrick of the Court of Common Pleas of Delaware County Pennsylvania. On July 30, 1996, Petitioner's motion to suppress and motion to compel production of the confidential informant was denied at the conclusion of a suppression hearing. He proceeded to a non-jury trial and was convicted of unauthorized use of a motor vehicle; theft by receiving stolen property; removal or falsification of identification number; dealing in vehicles with removed or falsified numbers; dealing in titles and plates for stolen vehicles; knowing or intentional possession of a controlled substance; delivery, manufacture or possession with intent to deliver or manufacture a controlled substance; former convict not to own a firearm; and criminal conspiracy. Judge Surrick on September 20, 1996, sentenced petitioner to an aggregate term of incarceration of not less than eight and one half years or more than seventeen years. Commonwealth's Response: Exhibit "A" (June 27, 1997 Court of Common Pleas Opinion) at pp. 1-2.

  The facts underlying Petitioner's conviction were set forth by the trial court as follows:

  On February 8, 1996, Andre Brodeur was arrested by the Criminal Investigation Division of the Office of the District Attorney of Delaware County. At the time he was arrested, he was driving a stolen 1988 maroon and silver Ford Bronco. The car he was driving had a replated public vehicle identification number (VIN) which was not the same as the confidential VIN. Id. at p. 1.

  Detective Larry Hughes, a nine year veteran of the Criminal Investigation Division (CID) of the Office of the District Attorney, received information from a confidential, reliable informant sometime in mid-January of 1996. The confidential informant (C.I.) said that the Petitioner, Andre Brodeur, was involved in the possession of stolen vehicles and the replating of stolen cars for a profit. Id. at pp. 4-5.

  The C.I. also informed the Detective that Petitioner had a reputation for being involved in this type of activity and had a prior criminal record for this form of activity. The C.I. told Detective Hughes that he had been in the Petitioner's residence about six months before and had observed numerous automobile titles, automobile transfer documents, licenses, tags and items used to replate stolen vehicles such as VIN plates. He also saw automobile parts such as ignition systems and door locks. Id. at p. 5.

  The C.I. informed Detective Hughes that he had overheard a conversation in which the Petitioner stated that he pays people to steal vehicles. These vehicles were then replated or sold to others who would then replate them. Petitioner would pay these individuals in cash or narcotics. The C.I. also stated that he heard the Petitioner state that the 1988 maroon (red) and silver Bronco was stolen and replated. Id. at p. 5.

  Detective Hughes drove to the Petitioner's residence with the C.I. The Petitioner's home matched the description of the one given to Detective Hughes by the C.I. The C.I. then pointed out the maroon and silver 1988 Bronco behind the Petitioner's home, indicating that this was the stolen and replated vehicle which Petitioner drove. Id. at pp. 5-6.

  Then Detective Hughes verified the registration number of the automobile with PENNDOT. The 1988 Ford Bronco was in fact registered to Maryann Brodeur at Petitioner's address. The title history indicated that the owner before Maryann Brodeur was a resident of Wayne, Delaware County. After talking to the insurance company, Detective Hughes was informed that the maroon and silver 1988 Ford Bronco that was registered to Maryann Brodeur had been involved in a serious accident in Haverford Township. Hughes than contacted the Haverford Township Police Department and the officer informed him that the 1988 Ford Bronco that had been involved in that accident had been severely damaged. He also told Detective Hughes that the 1988 Ford Bronco was blue or black and not maroon and silver. Id. at p. 6.

  After Detective Hughes ran a criminal history check on the Petitionr, he learned that Petitioner had a lengthy criminal history including multiple convictions for possession of stolen vehicles and altering serial numbers on vehicles. Detective Hughes set up a surveillance of Mr. Brodeur's home on February 8, 1996 at about 10:00 A.M. Petitioner Brodeur was observed leaving his residence, carrying papers in his hands at 1:00 P.M. Petitioner proceeded to go into the 1988 maroon and silver Bronco and drive away. The Upper Darby Police Department, acting in association with the CID, stopped Petitioner a few blocks away from his home. Id. at pp. 6-7.

  Detective Hughes then proceeded to walk up to the car while Petitioner was still seated in the driver's seat. Detective Hughes wanted to talk about the possibility of the car being a stolen car. At the time Detective Hughes reached the car, he noticed that the steering column on the vehicle was damaged in several places. He also noticed that the public VIN plate on the dashboard was scratched. He knew that these are conditions commonly seen in stolen vehicles. Hughes asked Mr. Brodeur to park his vehicle at a gas station, in order to get it out of the intersection. He then had Mr. Brodeur exit the vehicle and placed him in the back of his own unmarked vehicle. Detective Hughes left the door to the unmarked vehicle open. Id. at p. 7.

  Detective Hughes asked Mr. Brodeur for permission to search his vehicle. Petitioner voluntarily consented to the search, and after the consent form was read to him and explained, he signed it. Petitioner asked where the search was going to take place. Detective Hughes told Petitioner that the search would take place at the Delaware County garage because it was cloudy and starting to rain. At the Delaware County garage the confidential VIN was located. The confidential VIN found on the vehicle did not match the public VIN. In a normal vehicle the confidential VIN and the public VIN would match. Id. at pp. 7-8. After speaking again with PENNDOT, Detective Hughes learned that the vehicle with this confidential vehicle identification number had been stolen in Tinicum Township in February, 1994. Detective Hughes then spoke with the owner of the vehicle, a Mr. Troutman, who indicated that the car which was stolen from him was a maroon and silver 1988 Ford Bronco. After learning this information, Andre Brodeur was arrested. Id. at p. 8.

  Detective Hughes asked Petitioner for permission to search his home, however, Petitioner denied permission. Thus, on February 8, 1996, Detective Hughes prepared the affidavit for a search warrant to search Petitioner's residence. Id. at pp. 8-9.

  A search warrant (for Petitioner's residence) was executed on February 9, 1996. Items discovered in Petitioner's home included multiple public VIN plates, rivets used to put on VIN plates, rivet guns, numerous vehicle titles for automobiles (some in Petitioner's name and some in the name of others), inspection stickers, month stickers, numerous driver licenses with names other than the Petitioner's, welfare cards for other individuals, as well as a brown paper bag containing car locks. Also found in the home was a brown paper bag containing one pound of methamphetamine, a .22 caliber semi automatic weapon, and $400 in cash. Id. at p. 9.

  After being sentenced by Judge Surrick in September 20, 1996, Petitioner filed a timely notice of appeal on October 17, 1996.

  On Appeal, Petitioner presented three main issues, with several sub-parts:
I. Whether the trial court erred in denying Mr. Brodeur's motion to suppress the evidence gathered as a result of the search of Mr. Brodeur's residence where:
A. The warrant lacked a specific time frame for ascertaining when the information was received from the alleged confidential informant, when the alleged informant obtained the information he allegedly had, and if probable cause existed at the time the search warrant was issued that Mr. Brodeur was engaged in the criminal activity.
B. The affidavit in support of the search warrant affidavit contained material misrepresentations and was deliberately vague and misleading.
II. Whether the trial court in denying Mr. Brodeur's motion to suppress the evidence gathered pursuant to the stop and search of his vehicle where:
A. The stop was not supported by objective facts creating a reasonable suspicion that Mr. Brodeur was presently involved in criminal activity or creating probable cause that Mr. Brodeur was committing a violation of the Pennsylvania Motor Vehicle code.
B. The officers had sufficient time to obtain a search warrant and there were no exigent circumstances to excuse the failure of the officers in obtaining a search warrant prior to stopping Petitioner's car.
C. Mr. Brodeur's consent to search his vehicle was the fruit of an illegal stop and where [sic] the officers never informed him that they would be moving the vehicle to the Delaware County Courthouse to conduct the search.
III. Whether the trial court erred in refusing to order the Commonwealth to disclose the identity of the alleged confidential informant.
Commonwealth's Response: Exhibit "B" (June 24, 1998 Superior Court Opinion) at p. 4.

  The Pennsylvania Superior court affirmed the trial court decision on the merits on June 24, 1988. The Pennsylvania Supreme Court on February 2, 1999 denied allocatur. On August 12, 1999, Petitioner filed his first pro se petition under the State Post-Conviction Collateral Relief Act, 42 Pa. C.S.A. § 9541-9546. In the pro se petition, Mr. Brodeur raised twelve issues challenging suppression counsel's representation and one issue challenging the legality of his sentence. PCRA counsel was appointed to represent Petitioner. Counsel filed a no-merit Finley letter and a petition to withdraw. An evidentiary hearing was held on October 28, 1999 and November 30, 1999. At the beginning of the hearing on October 28, the Court advised PCRA counsel that it would hold his application to withdraw in abeyance until the PCRA hearing had concluded. Commonwealth's Response: Exhibit "C" (June 27, 2000 Common Pleas Court Opinion) at pp. 1-3.

  Petitioner testified at the PCRA hearing, as did Attorney Reilley, who represented Petitioner during the suppression hearing.

  The motion for collateral relief was denied by Order on December 22, 1999. The court found Appellant's petition to be without merit. Commonwealth's Response: Exhibit "C" (June 27, 2000 PCRA Opinion) at pp. 1-3.

  An appeal was filed on time to the Superior Court of Pennsylvania. Petitioner raised twelve ineffective assistance of counsel claims. Claims I, II, III, IV, V, VII, VIII, and X all relate to the legality of Petitioner's vehicular stop and search, and the legality of the subsequent residential search. Claim number VI, faults suppression and trial counsel for failing to impeach the credibility of Detective Hughes and Frey. Petitioner's ineffective claim number IX, charges trial counsel with "threatening" petitioner with the likelihood that both he and his wife would go to jail if Petitioner did not waive his right to a jury trial. The final two ineffectiveness claims, numbered XI and XII, assert that suppression and trial counsel failed to object to the Commonwealth's refusal to disclose the name of the person actually responsible for stealing and replating Petitioner's vehicle. Petitioner's final claim, ...


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