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[U] Commonwealth v. Riddick

Superior Court of Pennsylvania

March 10, 2014



Appeal from the PCRA Order Entered February 15, 2013 in the Court of Common Pleas of Lehigh County, Criminal Division at No: CP-39-CR-0000788-2010




Shakime Riddick (Appellant) appeals from the February 15, 2013 order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant contends his trial counsel provided ineffective assistance of counsel (IAC) by failing to file a motion to suppress, post-sentence motions, and/or a direct appeal on Appellant's behalf. After careful review, we reverse the PCRA court's order denying Appellant collateral relief.

On February 11, 2010, Amaury Almonte, a police officer for the City of Allentown, was assisting members of the Pennsylvania State Police (PSP), who were conducting an investigation involving a house located at 220 North 10th Street, Allentown, and was watching vehicles parked in a private parking lot located adjacent to the North 10th Street house. As he was driving past the house, Officer Almonte saw [Appellant] leave the North 10th
Street house through the door and walk toward a vehicle parked in the parking lot. Officer Almonte reversed the vehicle he was driving, stopped the vehicle in the entrance to the parking lot, and engaged [Appellant] in conversation. After speaking with [Appellant] and as he was driving away from the area, Officer Almonte saw [Appellant] shoveling snow from in front of the North 10th Street house.
On February 12, 2010, at approximately 11:45 A.M., Matthew Tretter, a PSP Trooper assigned to Vice/Narcotics, participated in a search conducted at the North 10th Street house. During the search, he saw in the house's basement, what, based on his training and experience, he believed to be approximately 50 marijuana plants growing in both a hydroponic or water-fed system and a soil system. The plants ranged in size from a few inches to a foot and a half. He also saw in the basement such equipment as grow lights, electrical ballasts, venting materials, and an outside vent. According to Trooper Tretter, the building was mostly vacant, except that a mattress was found on the floor in one of the second floor bedrooms.
On February 12, 2010, Jonathan Eckhart, a PSP Trooper assigned to the Central Interdiction Unit, and other law enforcement officers conducted a consensual search of a residence located at 1350 West Highland Street, Allentown. During the search, the police found a safe located within a cubby hole in the residence's master bedroom. The police opened the safe after it was brought downstairs from the upstairs bedroom. The police found a plastic container and drug paraphernalia inside the safe and found drugs and other drug paraphernalia inside the container. The drugs the police found inside the plastic container included dime bags of marijuana, hashish, and powder and crack cocaine. The crack cocaine was found in one bag; chunks of powder cocaine were found in a separate bag, and both bags were inside a third bag. [The total weight for the cocaine was approximately 153 grams.]
[Appellant] answered the door when Trooper Eckhart and the other police officers arrived at the West Highland Street residence and admitted them inside the residence. Virginia McFadden, the residence's owner, was also present when the police arrived at the residence. [Charone] Davis was not present when the police arrived, but returned after receiving a telephone call from [Appellant] who, at Trooper Eckhart's request, had telephoned Ms. Davis and told her that police wanted to speak with her. According to Trooper Eckhart, [Appellant] and [Ms. Davis] lived at the West Highland Street residence.

Motions Court Opinion, 11/3/2010, at 3-5 (footnotes and citations to notes of testimony omitted).

Appellant was arrested and charged with offenses related to evidence found at both addresses. On May 3, 2010, Appellant filed an omnibus pre-trial motion. That motion included, inter alia, a writ of habeas corpus as to Appellant's charges related to the marijuana grow operation at the North 10th Street house. On November 3, 2010, the motions court granted Appellant relief with respect to those charges, as it concluded that "the evidence [was] not sufficient to establish a prima facie case." Id. at 11. However, the motions court denied the motion with respect to the charges stemming from the items found in the West Highland Street residence, concluding that the Commonwealth had made out a prima facie case that Appellant had constructive possession of the contraband found there.

On April 18, 2011, Appellant entered into a negotiated plea agreement to plead guilty to possession with intent to deliver cocaine as an ungraded felony. In exchange, the Commonwealth agreed to waive the mandatory minimum sentence of 7 years' incarceration and cap Appellant's minimum sentence at 4 years' incarceration. The Commonwealth also withdrew the other charges arising from this incident, and agreed not to re-file the charges related to the North 10th Street residence. On August 16, 2011, Appellant was sentenced, consistent with his plea agreement, to 4 to 15 years' incarceration. Appellant did not file post-sentence motions or a direct appeal.

On August 9, 2012, Appellant timely filed a pro se PCRA petition. Counsel was appointed, and an amended petition was filed. Specifically, Appellant asserted, inter alia, that trial counsel was ineffective for failing to file a motion to suppress the evidence seized from the safe, and for failing to meet with Appellant to discuss the filing of post-sentence motions or a direct appeal.

The PCRA court held an evidentiary hearing on December 5, 2012. On February 15, 2013, the PCRA court entered an order dismissing Appellant's PCRA petition. Appellant filed a timely notice of appeal, and both Appellant and the PCRA court complied with Pa.R.A.P. 1925. On appeal, Appellant presents two issues for our review, which we reorder for ease of disposition.

[I.] Did the court err in failing to find counsel ineffective where he failed to see the Appellant following sentencing to discuss a post-sentence motion or appeal[?]
[II.] Did the court err in failing to find counsel ineffective for failing to file a motion to suppress evidence found in a safe belonging to the Appellant and located in the room he shared with his wife?

Appellant's Brief at 4.

In reviewing the propriety of an order granting or denying PCRA relief, an appellate court is limited to ascertaining whether the record supports the determination of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). If the record supports a post-conviction ...

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