Commonwealth v. Faison

Full title: COMMONWEALTH OF PENNSYLVANIA v. NAFIS ANTUAN FAISON, Appellant

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Dec 3, 2018

J-S42022-18 (Pa. Super. Ct. Dec. 3, 2018)

Opinion

J-S42022-18 No. 1423 MDA 2017

12-03-2018

COMMONWEALTH OF PENNSYLVANIA v. NAFIS ANTUAN FAISON, Appellant

CONCURRING MEMORANDUM BY STRASSBURGER, J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order July 13, 2017 in the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000126-2014 BEFORE: BOWES, J., MCLAUGHLIN, J. and STRASSBURGER^*, J. CONCURRING MEMORANDUM BY STRASSBURGER, J.:

* Retired Senior Judge assigned to the Superior Court.

I agree with the Majority that Faison was not prejudiced by trial counsel's failure to file a motion to suppress and therefore the PCRA court order should be affirmed. However, under the circumstances of this case, I believe it is prudent to address also the reasonable basis prong of the ineffective-assistance-of-counsel test as an alternative basis for affirming the order of the PCRA court.

It is well settled that "to prove counsel ineffective, the [PCRA] petitioner must demonstrate that (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) the petitioner was prejudiced by counsel's act or omission. A claim of ineffectiveness will be denied if the petitioner's evidence fails to satisfy any one of these prongs." Commonwealth v. Roane , 142 A.3d 79, 88 (Pa. Super. 2016) (internal citations and quotation omitted).

My review of the record reveals that trial counsel did not file a motion to suppress because Appellant himself directed trial counsel not to do so. According to PCRA counsel, he spoke to trial counsel several times, and trial counsel communicated the following.

[Trial counsel] made it clear that [Faison] communicated to [trial counsel] that of primary concern to [Faison] was the avoidance of delay in this matter. Specifically, [Faison was] focused on Rule 600 and [his] right to a speedy trial and, therefore, [he] did not want any pre-trial motions filed on [his] behalf. It is well within [Faison's] discretion to direct your attorney to not file any pre-trial motions.

Turner/Finley Letter, 5/9/2017, at 3 (unnumbered).¹

1 Here, the PCRA court misconstrues these statements. The PCRA court states that "Faison directed his attorney not to file any pre-trial motions in the hopes of obtaining relief pursuant to Rule 600 and has not raised any dispute as to that fact." PCRA Court Opinion, 6/22/2017, at 5; see also , PCRA Court Opinion, 10/20/2017, at 1 ("On appeal, Mr. Faison raised three issues involving ineffective assistance of trial counsel for the failure to file pre-trial motions to suppress when Mr. Faison himself directed his attorney not to pursue pretrial motions to suppress and instead hoped to become eligible for relief pursuant to Rule 600."). See also , Majority at 7 (same). It is clear that Appellant was not hoping to become eligible for relief pursuant to Rule 600, nor did he want trial counsel to file a motion to dismiss pursuant to Rule 600; rather, he was seeking to move his case along as quickly as possible. --------

Based on the foregoing, it is clear that trial counsel had an objectively reasonable basis not to file a motion to suppress on Faison's behalf. Accordingly, I would conclude that Faison's ineffective-assistance-of-counsel claim fails for that reason.