Opinion
J-S06017-15 No. 66 EDA 2014
09-17-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. MICHAEL STEVENS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order December 6, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0803221-2005
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J. MEMORANDUM BY LAZARUS, J.:
Former Justice specially assigned to the Superior Court.
Michael Stevens appeals from the trial court's order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9564. On appeal, Stevens claims that he was entitled to an evidentiary hearing on his amended PCRA petition. After careful review, we affirm.
An appellate court's 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. Allen , 732 A.2d 582 (Pa. 1999). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr , 768 A.2d 1164 (Pa. Super. 2001).
On December 15, 2004, Stevens was charged with various drug offenses following controlled drug buys involving a confidential informant (CI) working with authorities. In January 2007, Stevens filed a motion to suppress, claiming that the police lacked probable cause to stop and search him; the trial court denied the motion. Following a bench trial, Stevens was convicted of possession with intent to deliver (PWID), possession of a controlled substance, and criminal conspiracy. On January 3, 2008, Stevens was sentenced to 3-6 years of incarceration. Stevens filed a timely direct appeal which was dismissed by this Court, on October 20, 2008, for failure to file an appellate brief. On December 1, 2008, Stevens filed his first pro se PCRA petition, seeking reinstatement of his direct appeal rights. Counsel was appointed and filed an amended brief on his behalf on June 30, 2009. On September 1, 2009, the trial court reinstated Stevens' appeal rights and, on September 30, 2009, counsel filed an appeal nunc pro tunc. On May 6, 2011, our Court affirmed his judgment of sentence.
The possession count merged with the PWID count and no further sentence was imposed on the conspiracy conviction.
On October 27, 2011, Stevens filed the instant pro se PCRA petition alleging that counsel was ineffective for failing to challenge the denial of his suppression motion on direct appeal. Counsel was subsequently appointed and filed a Turner/Finley "no merit" letter. Stevens filed a pro se amended petition on November 15, 2013. On December 6, 2013, the court granted counsel's request to withdraw and dismissed Stevens' petition without a hearing. Stevens filed the instant appeal.
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988).
On January 21, 2015, this Court remanded this case to the PCRA court to determine if Stevens was eligible for PCRA relief at the time the PCRA court ruled on his petition. See Commonwealth v. Pagan , 864 A.2d 1231 (Pa. Super. 2004) (under PCRA, petitioner who has finished serving sentence at time court ruled on petition is not entitled to relief); see also 42 Pa.C.S. § 9543(a)(1)(i). On May 28, 2015, the PCRA court issued the following findings of fact, in response to our remand instructions:
On April 28, 2015, the Commonwealth filed a petition for allowance of appeal, from the denial of its petition for reargument filed in this Court, following our panel's January 21, 2015 remand decision. On July 2, 2015, the Supreme Court dismissed the Commonwealth's petition, holding that this Court's order was not final, as the panel had retained jurisdiction. See Commonwealth v. Stevens , 43 EM 2015.
(1) Defendant completed serving his 3 to 6 year sentence for PWID on February 4, 2014; andFindings of Fact by the PCRA Court, 5/28/15. Therefore, because at the time the court ruled on Stevens' petition he was eligible for relief under the PCRA, we may address the merits of his issue on appeal.
(2) Defendant was still serving his sentence on December 6, 2013, when the PCRA Court formally dismissed Defendant's PCRA petition as without merit.
On appeal, Stevens contends that the PCRA court should have afforded him a hearing on his petition which raised the issue of whether direct appeal counsel was ineffective in not raising the claim that the trial court improperly denied his pre-trial motion to suppress where the police had no probable cause to arrest him and recover the items seized in his vehicle.
There is no absolute right to an evidentiary hearing on a PCRA petition. If the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary. Commonwealth v. Barbosa , 819 A.2d 81 (Pa. Super. 2003); see also Pa.R.Crim.P. 907 (PCRA court may dismiss petition without hearing where judge is satisfied that there are no genuine issues concerning any material fact and that defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings).
Here, the PCRA court determined that there was probable cause to stop and arrest Stevens and search his vehicle where: (1) officers had observed a pattern of illegal narcotic sales with a CI on three occasions from a house at 1213 Sydney Street; (2) on one of those occasions an officer observed Stevens exchange something from his parked vehicle with a person who had been standing on the front steps of the Sydney Street house, moments before the CI emerged with crack cocaine from the same house; (3) $109 (including $20 in pre-recorded buy money) seized from the front seat of Stevens' car, of which he was the sole occupant, was in plain view; and (4) officers secured a search warrant, following Stevens' arrest, before searching the car's console.
Therefore, because there was no merit to Stevens' underlying suppression claim, his ineffectiveness claims must also fail. Carelli , supra. Moreover, because there is no genuine issue of material fact, the court properly denied the petition without first holding a hearing. Barbosa , supra ; Pa.R.Crim.P. 907.
We rely upon the opinion, authored by the Honorable Daniel J. Anders, in affirming the court's order denying Stevens' PCRA petition without a hearing. We instruct the parties to attach a copy of Judge Anders' decision in the event of further proceedings in the matter.
Order affirmed.
President Judge Emeritus Bender joins the majority Memorandum.
Justice Fitzgerald files a Concurring Statement. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2015
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