Appeal from the Order Entered August 10, 2011 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003118-2008
The opinion of the court was delivered by: Stevens, P.J.:
BEFORE: STEVENS, P.J., PANELLA, J., and STRASSBURGER, J.*fn1
OPINION BY STEVENS, P.J.:
This is an appeal from the order of the Court of Common Pleas of Berks County denying Appellant Hermion Jay McLaurin's petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541- 9546. Appellant claims the PCRA court erred in dismissing his petition without a hearing as he alleges the ineffective assistance of his trial counsel entitles him to a new trial. After careful review, we affirm.
This Court summarized the factual background of this case in reviewing Appellant's direct appeal:
Appellant was in a relationship with the mother of his 13- year-old victim, S.E., and frequently spent the night at the mother's home. On the night of June 22, 2008, Appellant was in the living room of the home, watching television, when S.E. came downstairs to watch television. S.E. watched television for a while and fell asleep on a couch. S.E. awoke to the feeling of something "going around [her] mouth." When she opened her eyes, she "saw a man's penis in [her] face." She screamed and ran up the stairs. Her mother was coming down the steps and S.E. told her what happened. S.E. continued up the stairs where she told her older sister what happened. As S.E.'s mother was telling Appellant to leave the home, S.E.'s older sister called 9-1-1. Appellant left the house before the police arrived. While the police were in the home, Appellant called and S.E.'s sister answered the phone. She told Appellant the police wanted him to return to the home to talk with them. During this conversation, Appellant told S.E.'s sister that he was trying to get the remote control from the couch where S.E. was lying.
When Appellant returned to the home, Officer Lincoln of the Exeter Township Police Department went outside and saw a fellow officer patting down Appellant and removing a plastic baggie containing marijuana from Appellant's pants pocket. Appellant was arrested and charged with two counts of indecent assault, and one count each of indecent exposure, corruption of minors, and possession of a small amount of marijuana.
Appellant testified in his own defense at trial and explained he woke up around 4 a.m. after falling asleep watching television in a sectional chair across the living room from the couch where S.E. fell asleep. He continued watching TV for another 40 minutes and then heard someone say, "No. No. No." He then saw S.E. jump up and run upstairs. S.E.'s mother came down the stairs into the living room and told Appellant to get out of her house. He explained that he left the home but then called and spoke with S.E.'s sister to find out what happened. He testified that he told S.E.'s sister that he "didn't do anything with [S.E.]." He returned to the home and spoke with police, and denied "doing anything." He did admit smoking marijuana with S.E.'s sister that evening. He speculated that S.E. made accusations against him, not because she was having a bad dream, but because he refused to give her $1,000 for cheerleading camp. Following deliberations, a jury returned guilty verdicts on one count of indecent assault and on the indecent exposure and corruption of minors charges. The trial court found Appellant guilty of possession of a small amount of marijuana.
... Appellant was sentenced to a term of 88 days (time served) to 23 months for indecent assault. The trial court also imposed concurrent three-year probationary sentences for indecent exposure and corruption of minors, consecutive to the indecent assault sentence, and imposed a $25 fine for possession of a small amount of marijuana for personal use. The trial court also confirmed that Appellant completed his tenyear Megan's Law registration form.
Commonwealth v. McLaurin, 1627 MDA 2009, unpublished memorandum at 1-3 (Pa. Super. filed July 22, 2010) (internal citations omitted). On July 22, 2010, this Court affirmed Appellant judgment of sentence. Id.
On March 10, 2011, Appellant filed a timely, counseled PCRA petition raising several claims of the ineffective assistance of trial counsel. After the Commonwealth filed a response to Appellant's petition, the PCRA court notified Appellant of its intention to dismiss his petition pursuant to Pennsylvania Rule of Criminal Procedure 907 and set forth its reasons why an evidentiary hearing was unnecessary. On August 10, 2011, the PCRA court dismissed Appellant's petition. This timely appeal followed.
In reviewing a challenge to an order denying a PCRA petition, our standard of review is "whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super. 2012) (citations omitted).
Appellant claims the PCRA court erred in denying his petition without an evidentiary hearing as he alleges his various claims of the ineffective assistance of his trial counsel entitle him to a new trial. Specifically, Appellant claims his trial counsel was ineffective in (1) failing to seek the suppression of marijuana found on his person, (2) failing to call character witnesses, (3) failing to properly cross-examine and impeach the victim's mother, (4) failing to raise the issue of tainted testimony, (5) failing to obtain the victim's CYS records, and (6) failing to provide an appropriate defense to the corruption of minors charge.
Our Supreme Court has emphasized, "[a] PCRA petitioner is not entitled to an evidentiary hearing as a matter of right, but only where the petition presents genuine issues of material fact. ... A PCRA court's decision denying a claim without a hearing may only be reversed upon a finding of an abuse of discretion." Commonwealth v. Walker, ---Pa.---, 36 A.3d 1, 17 (2011) (citations omitted). Pennsylvania Rule of Criminal Procedure 907 provides that "[a] petition for post-conviction collateral relief may be granted without a hearing when the petition and answer show that there is no genuine issue concerning any material fact and that the defendant is entitled to relief as a matter of law." Pa.R.Crim.P. 907(2).
As noted above, Appellant raises numerous claims of ineffectiveness of trial counsel. "It is well-established that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him." Commonwealth v. Koehler, ---Pa.---, 36 A.3d 121, 132 (2012). More specifically,
[t]o prevail on a claim alleging counsel's ineffectiveness under the PCRA, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without a reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness, i.e. there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999); Commonwealth v. Douglas, 537 Pa. 588, 645 A.2d 226, 230 (1994).
Commonwealth v. Wah, ---A.3d---, 2012 WL 666151, at *2 (Pa. Super. filed March 1, 2012) (quoting Commonwealth v. Bracey, 568 Pa. 264, 276, 795 A.2d 935, 942 (2001)). After reviewing the record and Appellant's petition, we find that Appellant neither established that there are any genuine issues of material fact nor that he is entitled to post-conviction collateral relief.
First, Appellant claims his trial counsel was ineffective in failing to pursue suppression of the marijuana confiscated from his person after the police frisked Appellant for their safety in order to check for weapons. In his petition, Appellant states "[w]hile a patdown for weapons may have been appropriate, there was no reason [for the officers] to believe that a small bag of marijuana was a weapon." PCRA Petition, at 2.
However, regardless of the legality of the patdown, the PCRA court concluded that this claim had no arguable merit because the marijuana was admissible under the inevitable discovery doctrine upon a search incident to arrest for indecent assault. The inevitable discovery doctrine provides the following:
[i]f the prosecution can establish by a preponderance of the evidence that the illegally obtained evidence ultimately or inevitably would have been discovered by lawful means, then the evidence is admissible. The purpose of the inevitable discovery rule is to block setting aside convictions that would have been obtained without police misconduct. Thus, evidence that ultimately or inevitably would have been recovered by lawful means should not be suppressed despite the fact that its actual recovery was accomplished through illegal actions. Suppressing evidence in such cases, where it ultimately or inevitably would have lawfully been recovered, "would reject logic, experience, and common sense."
Commonwealth v. Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009) (quoting Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). In Gonzales, this Court found that cocaine which police seized from Gonzales's apartment was admissible under the inevitable discovery doctrine regardless of the legality of the police interaction as the officers had probable cause to arrest Gonzales and had facts to support the issuance of a search warrant for his apartment after Gonzales voluntarily showed police he had cocaine and a wad of cash in his pocket and officers observed drug paraphernalia in plain view in his apartment. Gonzalez, 979 A.2d at 891.
Likewise, in this case, the police had probable cause to believe Appellant had committed an indecent assault and had the power to lawfully arrest Appellant on those grounds.*fn2 Appellant does not challenge the officers' authority to arrest him for the indecent assault but limits his claim to challenge the officer's decision to retrieve the marijuana from Appellant's pants. As the marijuana would have inevitably been discovered in a search incident to arrest, counsel cannot be deemed ineffective for failing to raise this meritless claim.
Second, Appellant argues that trial counsel was ineffective in failing to call witnesses to testify to his character as a "law-abiding individual." PCRA Petition, at 2. Our courts have set forth the procedure by which a petitioner must properly plead and prove his ...