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[U] Commonwealth v. Riddick

Superior Court of Pennsylvania

March 10, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
SHAKIME RIDDICK, Appellant

NON-PRECEDENTIAL DECISION

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

BEFORE: BENDER, P.J., OTT, and STRASSBURGER [*] , JJ.

MEMORANDUM

BENDER, P.J.

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 court's credibility determination, it is binding on the appellate court. Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa. Super. 1999).

In reviewing the PCRA court's denial of Appellant's claims of ineffective assistance of counsel, we presume counsel to be effective. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). To overcome this presumption, Appellant bears the burden of proving the following: "(1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance." Id. Appellant's claim will be denied if he fails to meet any one of these three prongs. Id.

Appellant first claims that his trial counsel was ineffective for failing to consult with Appellant about the possibility of filing a post-sentence motion or a direct appeal. Appellant's Brief at 14 - 18.

It is well settled that when a lawyer fails to file a direct appeal requested by the defendant, the defendant is automatically entitled to reinstatement of his direct appeal rights. Where a defendant does not ask his attorney to file a direct appeal, counsel still may be held ineffective if he does not consult with his client about the client's appellate rights. Such ineffectiveness, however, will only be found where a duty to consult arises either because there were issues of merit to raise on direct appeal or the defendant, in some manner, displayed signs of desiring an appeal.

Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa. Super. 2011), appeal denied, 40 A.3d 1235 (Pa. 2012) (citations omitted).

Instantly, trial counsel testified at the PCRA hearing that he had "a long history with" Appellant. N.T., 12/5/2012, at 50. Appellant wrote trial counsel several letters following his sentencing, but those letters only concerned Appellant's request that he be exempt from having to cut his hair in prison as he is a follower of the Rastafarian movement. The first time an appeal was mentioned was in a letter dated February 24, 2012, well after the 30 day time period had expired. Thus, the PCRA court found credible trial counsel's testimony that he was not asked by Appellant to file a direct appeal until it was too late to do so. Id. at 61; PCRA Court Opinion (PCO), 5/29/2013, at 10. "The law is clear that we are bound by the credibility determinations of the PCRA court, where such findings have support in the record." Commonwealth v. Clark, 961 A.2d 80, 87 (Pa. 2008). Accordingly, no relief is due on this basis.

However, Appellant could still be entitled to relief if trial counsel were derelict in his duty to consult with Appellant about an appeal. "[C]ounsel has a constitutional duty to consult with a defendant about an appeal where counsel has reason to believe either (1) that a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Commonwealth v. Bath, 907 A.2d 619, 623 (Pa. Super. 2006) (internal quotations omitted).

As to the first prong, we point out that a "plea of guilty constitutes a waiver of all nonjurisdictional defects and defenses. When a defendant pleads guilty, he waives the right to challenge anything but the legality of his sentence and the validity of his plea." Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007). Additionally, "where a defendant pleads guilty pursuant to a plea agreement specifying particular penalties," a defendant may seek a discretionary appeal related to any portion of the penalty that was not part of the agreement. Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009).

Thus, in this case, the only grounds available for post-sentence motions or appeal were that the plea was entered into unintelligently, unknowingly, and/or involuntarily, and that the maximum sentence of 15 years' incarceration violated a fundamental norm underlying the sentencing process. Instantly, Appellant makes no argument with respect to either issue.[1] Accordingly, Appellant has not established that he is entitled to relief on this basis.

As to the second prong, Appellant argues that counsel should have known Appellant wanted to appeal because he was "unsure of himself as to whether he wanted to take a plea or go to trial, and following the plea, wanting to withdraw that plea." Appellant's Brief at 15. Appellant further argues that the PCRA court erred in finding trial counsel's testimony that he did not receive any phone calls from Appellant about filing an appeal to be credible. Id.

Here, Appellant testified that trial counsel did not meet with Appellant after he was sentenced; however, Appellant tried to call counsel's office, but his calls were not answered. N.T., 12/5/2012, at 15. Appellant also testified that he had his family try to contact counsel as well. Id. Appellant's wife, Ms. Davis, testified that she called trial counsel's office the day after sentencing to speak to counsel about an appeal. She testified that she also went to trial counsel's office the following week and spoke to trial counsel about an appeal. Id. at 41 - 42.

Trial counsel testified that he recalled meeting with Ms. Davis sometime after August 25, 2011. Counsel testified that he could not recall discussing an appeal; rather, the two discussed the hair exemption. Id. at 59. The PCRA court found trial counsel's testimony credible. Thus, the record supports the conclusion that trial counsel had no reason to believe that Appellant wanted to file an appeal, and Appellant is not entitled to relief on this issue.

Next, Appellant argues that trial counsel was ineffective for failing to file a motion to suppress the evidence discovered in the safe. Appellant contends that the PCRA court abused its discretion when it found that trial counsel had not provided Appellant with IAC, because trial counsel had a reasonable basis for not filing such a motion.

In considering Appellant's second IAC claim, we are mindful of the following standards:

"[A]ll constitutionally-cognizable claims of ineffective assistance of counsel may be reviewed in a PCRA petition." Commonwealth ex rel. Dadario v. Goldberg, 565 Pa. 280, 773 A.2d 126, 130 (2001) (holding that PCRA afforded relief for ineffective assistance of counsel where trial counsel misinformed defendant of sentencing range). The Sixth Amendment guarantees the effective assistance of counsel at all stages of a criminal proceeding, including during the plea process. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). If the ineffective assistance of counsel caused the defendant to enter an involuntary or unknowing plea, the PCRA will afford the defendant relief. Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).

Commonwealth v. Lynch, 820 A.2d 728, 731-32 (Pa. Super. 2003).

Where [an] ineffectiveness claim is based on the failure of counsel to move for suppression of evidence, "the defendant must establish that there was no reasonable basis for not pursuing the suppression claim and that if the evidence had been suppressed, there is a reasonable probability the verdict would have been more favorable."

Commonwealth v. Arch, 654 A.2d 1141, 1143 (Pa. Super. 1995) (quoting Commonwealth v. Melson, 556 A.2d 836, 839 (Pa. Super. 1989)).

Synthesizing these standards, we can formulate Appellant's burden in this instance as follows: to be entitled to relief, Appellant must establish that 1) the forgone suppression motion was arguably meritorious; 2) trial counsel lacked a reasonable basis for not filing a suppression motion; and 3) there is a reasonable probability that counsel's omission caused Appellant to enter an unintelligent and/or unknowing plea. As the PCRA court dismissed Appellant's claim because it concluded that trial counsel had a reasonable basis to not file a suppression motion, we begin our analysis with the second prong.

At the PCRA hearing, Appellant's trial counsel, Glenn M. Goodge, Esq., gave three reasons why he did not file a suppression motion in this case. First, he stated that Appellant lacked standing to seek suppression for the drugs located in the safe. PCO, at 5; N.T., 12/5/12, at 55. However, the PCRA court "found that this was an incorrect assessment of the law" and the Commonwealth conceded "that Appellant would have had automatic standing in this case because he was charged with a possessory offense." PCO, at 5. We agree that Appellant was entitled to automatic standing under the circumstances of this case. Under Article 1, § 8 of the Pennsylvania Constitution, "a defendant charged with a possessory offense has automatic standing to litigate a suppression motion." Commonwealth v. Strickland, 707 A.2d 531, 533-34 (Pa. Super. 1998); see also Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998) (holding that Article 1, § 8 of the Pennsylvania Constitution "accord(s) standing automatically, with no preliminary showing of a proprietary or possessory interest by the defendant, … where possession at the time of the contested search and seizure is an essential element of the prosecution's case[,]" despite the United States Supreme Court's abandonment of the construct under the Fourth Amendment to the United States Constitution). Accordingly, the PCRA court correctly determined that trial counsel's assertion that Appellant lacked standing was not a reasonable basis that would justify counsel's failure to file a motion to suppress.

The second reason trial counsel gave was his assessment that Appellant could not establish a reasonable expectation of privacy in the house at 1350 West Highland Street. Here, the PCRA court again indicates that trial counsel's legal conclusion was faulty, stating that:

[I]t appeared Appellant could potentially establish a reasonable expectation of privacy in the West Highland Street residence [as] [h]e had documents addressed to him at that address, items supporting a reasonable inference that he was residing in the master bedroom with Ms. Davis, and had at least limited access to the residence.

PCO, at 7.

The PCRA court does suggest that "whether Appellant had a reasonable expectation of privacy was not clear-cut." Id. at 8. Nevertheless, trial counsel testified that he repeatedly told Appellant that "[h]e had no reasonable expectation to privacy over what was in someone else's house." N.T., 12/5/12, at 55. Counsel's statement was plainly an erroneous legal assessment as there was sufficient evidence upon which a suppression court could have concluded that Appellant had a reasonable expectation of privacy in the residence.[2] Furthermore, Appellant was likely to have an even stronger expectation of privacy in the safe.[3] Accordingly, we conclude that this was not a reasonable basis upon which to fail to file a suppression motion. Indeed, considering the applicable case law, we believe that there was more than adequate evidence for a suppression court to determine that Appellant had a reasonable expectation of privacy in both the residence and, more specifically, the safe.

For his third and final reason for failing to file a suppression motion, trial counsel asserted the following strategic basis upon which he relied:

A. … Um, and, you know, he's in the unenviable position of having to say that the drugs were his in order to suppress the search which discovered them. And he denied that the drugs were his. And then there was the issue as to whether or not the safe was his. I mean, his best position was neither the safe nor the drugs were mine, you know, prove it at the time of trial. But that being the case he would have left no standing to resist the search.
Q. So, what you're saying is, to proceed on a motion to suppress, he would have to concede that drugs were his?
A. Absolutely. Or if – whether the safe, too, was his. N.T., 12/5/12, at 54.

It is for this reason that the PCRA court determined that trial counsel had a reasonable basis in failing to file a motion to suppress. However, the trial attorney's reasoning represents a critical misunderstanding and misstatement of applicable law. It has been well-established for nearly half a century "that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." Simmons v. United States, 390 U.S. 377, 394 (1968). Because of the Simmons rule, our Supreme Court has stated that "[i]t is difficult to see how a motion to suppress incriminating evidence can ever be prejudicial to an accused, regardless of its chances for success." Commonwealth v. Wheeler, 541 A.2d 730, 735 (Pa. 1988). In Wheeler, the appellant argued that his counsel provided IAC by filing a motion to suppress incriminating letters, arguing that "the very act of presenting the motion, which had no chance of legal success, amounted to an admission that Wheeler had written the letters." Id. In light of the Simmons rule, our Supreme Court described the appellant's argument as being "utterly fallacious." Id.

We conclude, therefore, that the PCRA court abused its discretion in determining that trial counsel proffered a reasonable basis for not filing a motion to suppress the seized contraband. Accordingly, we now examine the other IAC prongs to determine whether the PCRA court's order denying relief can be sustained on other legal grounds.

Satisfaction of the first prong of the IAC test requires Appellant to demonstrate that the forgone suppression claim had arguable merit. The motion would have asserted the illegality of the search that occurred at 1350 West Highland Street. As already discussed above, Appellant had automatic standing to raise such a claim, and was likely to have been found to have a reasonable expectation of privacy in the safe that was located in a bedroom he shared with his wife at that address, even if he did not own the home. Beyond these threshold matters, the following standard would have been employed by a suppression court in evaluating the otherwise omitted suppression motion.

It is well established that "probable cause alone will not support a warrantless search or arrest in a residence ... unless some exception to the warrant requirement is also present.... [A]bsent consent or exigent circumstances, private homes may not be constitutionally entered to conduct a search or to effectuate an arrest without a warrant, even where probable cause exists."

Commonwealth v. Johnson, 68 A.3d 930, 935 (Pa. Super. 2013) (quoting Commonwealth v. Santiago, 736 A.2d 624, 631 (Pa. Super. 1999)).

The record indicates that the police did not have a warrant to search the residence at 1350 West Highland Street.[4] Furthermore, the record does not demonstrate that probable cause existed to conduct the search. This is because it is not at all clear, particularly in the absence of a suppression hearing addressing the matter, whether the probable cause justifying the search of Appellant's North 10th Street house was transferable to the 1350 West Highland Street address, nor is it obvious whether the search of North 10th Street was itself supported by probable cause. The record is also devoid of any evidence that the search was prompted by exigency. Therefore, the forgone suppression motion's likelihood of success was contingent upon factual findings that were never made - whether adequate consent was given to the officers to conduct the warrantless search of 1350 West Highland Street. We conclude, therefore, that there was arguable merit to the underlying suppression claim.[5]

Finally, we consider the third, or "prejudice" prong, of Appellant's second ineffectiveness claim. To demonstrate prejudice in this instance, Appellant must show that there is a reasonable probability that he would not have pleaded guilty but for counsel's erroneous advice concerning his ability to file a suppression motion. Here, trial counsel advised Appellant to enter a plea because of: 1) counsel's belief that Appellant lacked standing to suppress the seized evidence; 2) the unlikelihood of Appellant being acquitted at a trial due to a prediction of unfavorable testimony from Charone Davis; and 3) the avoidance of mandatory sentences. See Letter, 10/7/11, at 1 (Commonwealth's Exhibit C-1).

If Appellant's suppression motion had been successful, there is no reason to believe that Appellant would have been inclined to plead guilty when the Commonwealth's case against him had been eviscerated. Indeed, the Commonwealth may have abandoned the prosecution entirely having been deprived of that key evidence, rendering Appellant's decision to plead guilty moot. We also have no basis upon which to conclude that Charone Davis' testimony at trial would have been sufficient to convict Appellant if the Commonwealth was precluded from entering the seized contraband into evidence. Obviously, since trial counsel believed that a suppression motion was futile, he would have assumed that the seized evidence would have been entered at trial. Accordingly, we can surmise that counsel's assessment of Appellant's chances at trial, including the possible effect of Charone Davis' testimony, were heavily influenced by his improper assumptions about the viability of a suppression motion.

Furthermore, even a partially successful suppression motion, resulting in the suppression of some but not all of the seized contraband, could have impacted the applicability of the threatened mandatory minimum sentence, or otherwise significantly affected the bargaining position of the parties in arriving at the terms of the plea agreement. Consequently, all of the advice given by trial counsel in convincing Appellant to plead guilty hinged on incorrect assumptions regarding the viability and likelihood of success of the forgone suppression motion. Moreover, the record does not indicate any other reason why Appellant would have pled guilty but for the aforementioned advice of counsel. Compare Commonwealth v. Miller, 433 A.2d 1, 3 (Pa. 1981), (holding that "[g]iven the unlikelihood of success on a motion to suppress and appellant's initial desire to plead guilty, counsel cannot be deemed ineffective for failing to file a motion to suppress") (emphasis added).

We conclude, therefore, that Appellant was prejudiced by his counsel's failure to file a motion to suppress the seized contraband in this case in satisfaction of the third and final prong of the IAC test. There is at least a reasonable probability that, but for trial counsel's erroneous legal advice regarding a potential suppression motion, Appellant would not have pled guilty. Accordingly, having successfully demonstrated that trial counsel's ineffectiveness caused Appellant to enter an unintelligent or unknowing plea due to counsel's erroneous advice regarding the viability of a suppression motion, we reverse the PCRA court's order denying relief, vacate Appellant's judgment of sentence, and remand this case to the trial court in order to permit Appellant to withdraw his guilty plea.

Order reversed. Judgment of sentence vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

DISSENTING MEMORANDUM

STRASSBURGER, J.

I agree with the majority that Appellant is not entitled to relief on his PCRA claim that counsel was ineffective for failing to file a direct appeal on his behalf. However, for the following reasons, I disagree that Appellant is entitled to relief on his other ineffective assistance of counsel claim. Accordingly, I would affirm the order of the PCRA court.

Appellant contends that counsel was ineffective for failing to file a motion to suppress. The Majority first concludes that counsel was ineffective because the motion to suppress had arguable merit and counsel did not offer a reasonable basis for not filing a suppression motion. I agree with the Majority on those two points.

Where I part ways with the Majority is in its analysis of the prejudice prong. "[W]ith regard to the prejudice prong, where an appellant has entered a guilty plea, the appellant must demonstrate it is reasonably probable that, but for counsel's errors, he would not have pleaded guilty and would have gone to trial." Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa. Super. 2013). Furthermore, we observe "[o]ur scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party." Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted; emphasis added).

Instantly, the Majority's prejudice analysis views the record in the light most favorable to Appellant by making assumptions based on the potential success of the suppression motion. This is error where Appellant's own testimony contradicts the underlying assumption.

At the PCRA hearing, Appellant did not testify that his decision to plead guilty was influenced at all by counsel's failure to file a motion to suppress. Instead, he testified that he pled guilty because he felt his attorney did not want to go to trial. See N.T., 12/5/2012 at 14 ("I felt like I wanted to go to trial in this situation, so therefore I was basically pressured into taking a plea to a certain extent, because, I mean, if my attorney didn't want to go to trial, I have no -- you know, I couldn't go to trial by myself."). Viewing this evidence in the light most favorable to the Commonwealth as the prevailing party, I conclude that Appellant has not satisfied the prejudice prong of the test for ineffective assistance of counsel, and would affirm the order of the PCRA court as to this claim.


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