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.
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.
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
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
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
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, ...