Appeal from the Order Entered March 30, 2007, in the Court of Common Pleas of Lancaster County Criminal Division at No. CP-36-CR-0002649-2001.
The opinion of the court was delivered by: Ford Elliott, P.J.
BEFORE: FORD ELLIOTT, P.J., DONOHUE AND POPOVICH, JJ.
¶ 1 The Commonwealth appeals the March 30, 2007 order granting Samuel Harris's ("appellee's") petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court determined that appellee had received ineffective assistance of counsel when his attorney failed to file a motion to suppress his statements to the police following his arrest. After careful review, we reverse the order of the PCRA court.
¶ 2 The procedural history of this case is as follows. Appellee was alleged to have engaged in various illegal activities with the minor female victim, F.B. Appellee was arrested on April 11, 2001 on unrelated charges by members of the East Lampeter Township Police. He subsequently provided an inculpatory statement to the police about the events with F.B. and was charged with two counts of rape, two counts of involuntary deviate sexual intercourse, two counts of aggravated indecent assault, one count of indecent assault, one count of false imprisonment, and one count of corruption of minors.
¶ 3 On January 11, 2002, appellee pled guilty to all charges pursuant to a negotiated plea agreement.*fn1 On this same date, appellee was sentenced to an aggregate term of 71/2 to 15 years' imprisonment. Immediately after appellee was sentenced, the Commonwealth requested that the trial court order appellee to undergo assessment by the Sexual Offender's Assessment Board ("SOAB") to assess appellee's sexually violent predator ("SVP") status. The trial court denied the Commonwealth's request on the grounds that certain provisions of Megan's Law*fn2 were unconstitutional.*fn3
¶ 4 At this point, the record becomes convoluted. On January 23, 2002, the Commonwealth filed a notice of appeal to the Pennsylvania Supreme Court pursuant to 42 Pa.C.S.A. § 722(7), from the January 7, 2002 order and judgment of sentence, asserting the SVP provisions of Megan's Law were, in fact, constitutional. On February 6, 2002, the Pennsylvania Supreme Court reserved ruling on the Commonwealth's appeal pending the outcome of a related case, Williams II.
¶ 5 On February 8, 2002, appellee also filed a notice of appeal from the January 11, 2002 judgment of sentence. Appellee's court-appointed counsel filed an Anders brief and a motion to withdraw. A panel of this court affirmed the judgment of sentence on October 18, 2002 and permitted counsel to withdraw. Commonwealth v. Harris, 815 A.2d 1126 (Pa.Super. 2002) (unpublished memorandum). Appellee did not file an appeal with the Pennsylvania Supreme Court.
¶ 6 On June 22, 2004, the Pennsylvania Supreme Court reversed the trial court's order insofar as it found specified provisions of Megan's Law unconstitutional and remanded for further proceedings. Commonwealth v. Harris, 578 Pa. 240, 851 A.2d 856 (2004), citing Williams II, supra; Maldonado, supra. Ultimately, the SOAB determined that appellee did not meet the criteria of a sexually violent predator. On November 3, 2004, the Commonwealth filed notice that appellee would not be subject to the SVP provisions of Megan's Law II.
¶ 7 On December 21, 2004, appellee filed a pro se PCRA petition. Counsel was appointed and an amended petition was filed on May 27, 2005 raising issues regarding the ineffectiveness of appellate counsel for not raising the issue of prior counsel's failure to file a motion to suppress the statement made to the police. On November 28, 2005, a PCRA hearing was held to determine the timeliness of the petition; the court found appellee's petition had been timely filed. (See opinion and order, 3/30/07 at 4-10.) On October 2 and 4, 2005, hearings were held regarding the merits of the petition. Thereafter, the PCRA court granted appellee relief, permitting him to withdraw his guilty plea and proceed to trial. The Commonwealth filed a notice of appeal on April 9, 2007. The court directed the Commonwealth to file a concise statement of matters complained of on appeal. The Commonwealth complied, and the PCRA court filed an opinion.
¶ 8 On appeal, the Commonwealth raises two issues:
WHETHER THE PCRA COURT ERRED BY FINDING THAT GUILTY PLEA COUNSEL [WAS] INEFFECTIVE FOR NOT LITIGATING A SUPPRESSION ISSUE WHEN SUCH A MOTION WOULD HAVE BEEN UNSUCCESSFUL?
WHETHER THE PCRA COURT ERRED BY FINDING THAT DEFENDANT'S GUILTY PLEA WAS TAINTED WHERE GUILTY PLEA COUNSEL CANNOT BE ...