February 12, 2014
COMMONWEALTH OF PENNSYLVANIA
DERIACE STONE, Appellant
Appeal from the Order Entered October 24, 2012, in the Court of Common Pleas of York County Criminal Division at No. CP-67-CR-0006522-2007
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND PLATT, [*] JJ.
FORD ELLIOTT, P.J.E.
Appellant appeals the order granting in part, and denying in part, his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Finding no error, we affirm.
On November 6, 2008, a jury found appellant guilty of possession of a controlled substance and other drug-related crimes as well as a weapons offense. On December 31, 2008, appellant was sentenced to an aggregate term of 5½ to 11 years' imprisonment.
Appellant was apprehended after police searched trash bags that abutted appellant's property and found a plastic sandwich bag containing marijuana particles. Police then obtained a search warrant for appellant's residence by presenting an affidavit of probable cause that read as follows:
This affiant is an officer with the Spring Garden Township Police Department and a member of the York County Drug Task Force.
Based on the following information I believe there is Marijuana present at 719 State St.
Specifically, I have reveived [sic] information from concerned persons that illegal drugs are being used and sold at 719 State St.
On August 14, 2007 I picked up trash from the north side of the residence. The trash was located in an area where trash is normally located for 719 State St. I have picked up trash from 719 State St. at this same location on four separate occasions in the past. During normal routine patrol I observe trash to be normally placed at this same location. Further, there are no houses located on the north, west or east sides of 719 State St. There is only one home attached to the south side of the residence. The trash was located on the north side of the residence. 719 State St. is bordered by three roadways located on the north, west and east sides of the residence.
The trash was sitting in an area between the roadway and the north side of the residence which is appx. two feet wide.
The following items were recovered from the trash, loose cigar tobacco
two Dutch Masters cigar labels
four plastic sandwich type bags
one plastic sandwich type bag containing green vegetable matter particles
This green vegetable matter field tested positive as marijuana.
Affidavit of Probable Cause, 8/14/07 at 2.
As a result of the search of the house, police found a large quantity of marijuana, drug paraphernalia, and two firearms. Appellant filed an omnibus pre-trial motion in which he sought suppression of the evidence. Appellant argued that the house search yielded "fruit of the poisonous tree" because it was based upon an illegal search of appellant's trash bags. The bags were not placed where they would be for pick-up by the trash collector but were alongside appellant's property abutting an alley. Appellant argued that police had to enter his property to access the trash bags and that, therefore, they could not be considered as abandoned property.
At a suppression hearing on July 10, 2008, Officer Rick Eisenhart testified:
Q. Okay. And can you describe to the Court where the trash was located?
A. It's on the north side of the residence. The main roadway travels along the west side, which is State Street, and then there's an alley on the north side and an alley on the -- east side of the residence, and the south side is attached to another residence.
The trash was actually on a -- sitting next to an extended portion of the house, which is like a sun room. There's approximately 18 to 24 inches of space there between the actual house and the roadway, and that's where the trash was always sitting.
. . . .
Q. Now, let's specifically talk about August 14th of 2007. I believe that is a trash pull at issue here. Again, what time did you do that?
A. 5:30 a.m.
Q. And when you pulled the trash, were they in trash cans? Were they bags? Can you explain to the Court how that was?
A. They were in -- the one I picked up in particular was a loose garbage bag sitting actually partially on the roadway. It was just a small portion between the house and the roadway, like I said, approximately 18 inches to 24 inches.
He also had used to have a trash can sitting out there. I believe it was a plastic trash can.
Q. How many bags were out there on August 14th?
A. There was, I believe, two outside of the trash can, and I'm not sure how many in.
Q. And it's your testimony that you only took the one?
A. I believe I took both bags outside the trash can.
Q. Did you look inside the trash can at all, officer?
A. I don't recall. I don't believe I did.
Q. But it's your testimony that the bags that you pulled were partially on Utah Alley?
Q. And is Utah Alley a private or a public roadway?
A. Public roadway.
Q. Did you step onto the property at 719 State Street at all to pull this trash?
A. No, I didn't. I was on the roadway on Utah Alley.
Notes of testimony, 7/10/08 at 7; 9-11. Officer Eisenhart also testified that there is a fence on appellant's property at the Utah Alley location and that he has occasionally seen trash bags within the fenced area. (Id. at 14-15.) Further, although he did not know at the time, Officer Eisenhart conceded on cross-examination that he was currently aware that trash was put out for collection on State Street and not on Utah Alley. (Id. at 17-19.)
Appellant's suppression motion was denied, and as noted, he was subsequently convicted and sentenced. Appellant filed a timely direct appeal. Among the several issues raised in the concise statement of matters complained of on appeal was an assertion that the search of the trash bags was improper because, based upon their location, they could not be considered abandoned property. In appellant's appellate brief, however, he argued that the trash bag search was unlawful because police failed to verify that the contents of the bags were garbage, or whether the bags had been placed out for collection. This court ruled that the issue argued in the brief had not been raised by the concise statement and was waived. On March 17, 2011, this court affirmed the judgment of sentence, and on March 1, 2012, our supreme court denied appeal. Commonwealth v. Stone, 26 A.3d 1196 (Pa.Super. 2011), appeal denied, 615 Pa. 766, 40 A.3d 1236 (2012).
On May 9, 2012, appellant filed the instant PCRA petition pro se. Counsel was appointed on June 4, 2012, and a hearing was held September 26, 2012. Among the issues raised was an issue as to appellate counsel's ineffectiveness in failing to properly pursue appellant's suppression claim. Appellant also asserted that he was due certain credit for time served. On October 24, 2012, the PCRA court entered an opinion and order granting appellant relief as to the credit for time served issue, but denying relief as to all other issues including counsel's ineffectiveness in pursuing appellant's suppression claim. Appellant now brings this timely appeal raising the sole issue of counsel's ineffectiveness in presenting the suppression claim on appeal.
Our standard of review for an order denying post-conviction relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id.
Moreover, as the issue on appeal is stated in terms of ineffective assistance of counsel, we also note that appellant was required to make the following showing in order to succeed with such a claim: (1) that the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any prong of this test will cause the entire claim to fail. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed to be effective, and appellant has the burden of proving otherwise. Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).
The PCRA court found merit in appellant's underlying issue; that is, if properly presented, this court would have reviewed appellant's suppression issue. The PCRA court also found no reasonable basis for counsel's failure. However, the PCRA court found that appellant failed to meet the third prong regarding prejudice, reasoning that this court would not have reversed on the suppression issue and remanded for a new trial. The PCRA court was correct.
Appellant argues on appeal essentially that at the suppression hearing, Officer Eisenhart should have been limited to the allegations in the affidavit of probable cause. Appellant quotes the Rules of Criminal Procedure:
(B) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.
Pa.R.Crim.P., Rule 203(B), 42 Pa.C.S.A. (emphasis added). Appellant also cites Commonwealth v. Coleman, 574 Pa. 261, 830 A.2d 554 (2002), for the proposition that "[i]n analyzing whether a warrant was supported by probable cause, judicial review is confined to the four corners of the affidavit." Coleman, 574 Pa. at 271, 830 A.2d at 560. Appellant complains that the affidavit of probable cause placed the trash bags on the north side of the residence and not partially in the alley as testified to by Officer Eisenhart.
Appellant's argument improperly conflates two separate searches. In determining whether the warrant for the search of the residence was properly issued, the suppression court's review would be confined to the four corners of the affidavit of probable cause. However, that is not the search the suppression court was being asked to review; rather, the court was reviewing the initial, warrantless search of the trash bags and there was no underlying affidavit that confined that review. Thus, in determining the propriety of the warrantless search of the trash bags, the court could properly consider Officer Eisenhart's testimony and pictorial indication that the trash bags were partially in the alley. That being stated, we find that the court below properly declined to suppress the evidence.
When reviewing a challenge to a trial court's denial of a suppression motion, our standard of review is:
limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.
Commonwealth v. Delvalle, 74 A.3d 1081, 1084 (Pa.Super. 2013), quoting Commonwealth v. Hoppert, 39 A.3d 358, 361-362 (Pa.Super. 2012), appeal denied, __Pa. __, 57 A.3d 68 (2012).
This court has previously stated the appropriate considerations pertaining to the warrantless search of trash:
It is also well-established that "no one has a standing to complain of a search and seizure of property that he has voluntarily abandoned." Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976). "The determination of whether or not there has been an abandonment of property is an ultimate fact, dependent upon the purported act of abandonment and the manifested intent of the person alleged to have abandoned the property." Commonwealth v. Sero, 478 Pa. 440, 452, 387 A.2d 63, 69 (1978). "The test for abandonment is whether the complaining party could retain a reasonable expectation of privacy in the property allegedly abandoned." Id. In Commonwealth v. Minton, 288 Pa.Sup.Ct. 381, 432 A.2d 212 (1981), this Court held that "placing trash for collection is an act of abandonment which terminates any fourth amendment protection." Id. at 391, 432 A.2d at 217. In Minton, police removed a large plastic trash bag sitting at the curb side directly in front of the defendant's residence and discovered marijuana residue in the bag. See also United States v. Reicherter, 647 F.2d 397, 399 (3d Cir.1981) ("Every circuit considering the issue has concluded that no reasonable expectation of privacy exists once trash has been placed in a public area for collection"; such trash has been abandoned).
Commonwealth v. Cihylik, 486 A.2d 987, 990-991 (Pa.Super. 1985).
Thus, had appellant placed the trash bags at issue out for collection, it would be dispositive that he had abandoned the property and could not be heard to complain about the search. Nonetheless, like the court below, we do not find it dispositive as to abandonment that the trash bags had not been placed for collection.
We find the suppression court reasonably concluded that the trash bags in question had been abandoned. The bags were left partially in a public roadway where they could be accessed without entering appellant's property. Appellant plainly exhibited no expectation of privacy in leaving the bags where they could be examined and searched by any stranger or passer-by. Appellant gave no indication that he asserted any possessory interest in these bags unlike those he kept within the fence on Utah Alley. Finally, the very act of placing an item in a trash bag manifestly indicates an intent to abandon the property at some point. We think appellant crossed that point. Simply stated, although the trash bags had not been put out for collection, we find that there are sufficient indications that appellant abandoned this property. Thus, the search here was proper as appellant had no reasonable expectation of privacy in these trash bags.
Accordingly, we will affirm the order of the PCRA court.