J-S60013-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RONALD ANDREW KESSELRING

Appellant No. 554 MDA 2014

Appeal from the PCRA Order March 4, 2014

In the Court of Common Pleas of Adams County

Criminal Division at No(s): CP-01-CR-0000196-2011

BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY OTT, J.: FILED APRIL 14, 2015

Ronald Andrew Kesselring appeals from the order entered on March 4, 

2014, in the Court of Common Pleas of Adams County, denying him relief on 

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. § 9541 et seq. Kesselring raises two issues in this timely appeal. 

He claims the PCRA court erred in determining trial counsel was not 

ineffective for (1) failing to challenge the existence of probable cause in the 

search warrant affidavit, and (2) failing to challenge the veracity of the 

search warrant affidavit, which was false by omission. Following a thorough 

review of the submissions by the parties, relevant law, and the certified 

record, we affirm.

The relevant factual history of this matter is briefly stated. On 

December 12, 2010, Reading Township Police Officer Eric Beyer went to 
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Kesselring’s residence on a matter unrelated to this appeal. One of Officer 

Beyer’s duties is as a firearms instructor, and he has received additional 

training regarding firearms. While he was there, he saw what appeared to 

be a small caliber rifle, sitting on top of Kesselring’s refrigerator. Officer 

Beyer was approximately three feet away from the refrigerator at the time. 

The barrel of the rifle was pointed away from Officer Beyer. However, he 

could see the wooden stock of the gun and that it had a sticker on it. From 

his personal knowledge, he believed the gun was a .22 caliber Mossberg 

rifle, which had a similar wooden stock. Additionally, Mossberg was the only 

arms manufacturer he knew that put a sticker on the stock of its rifles. 

Kesselring’s possession of a rifle had no direct relevance to why Officer 

Beyer was visiting that day, and Officer Beyer did not pick up the gun at that 

time. However, when he returned to the police station, Officer Beyer ran a 

background check on Kesselring and determined he was a previously 

convicted felon and was prohibited from legally possessing a firearm.

Based upon his observation at Kesselring’s residence and his research 

into Kesselring’s background, Officer Beyer obtained a search warrant for 

Kesselring’s residence and garage.1 When the warrant was served, the rifle 

was located and determined to be a spring activated pellet gun, which, 

therefore, Kesselring was legally entitled to own. However, while the 

____________________________________________

1 Kesselring’s business was conducted on the same property. The warrant 

allowed the search of all buildings.
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warrant was being served, Kesselring admitted to owning two antique 

firearms. One was a .44 caliber cap and ball revolver and the other a .50 

caliber flintlock rifle. Both of the weapons were seized and were 

subsequently determined to be fully functional. Kesselring was charged with 

two counts of illegal possession of a firearm. 2

Counsel filed a motion to suppress the physical evidence, claiming the 

warrant was based upon false information, namely the misidentification of 

the BB gun. The motion to suppress was denied and Kesselring was 

subsequently convicted by a jury of both counts. Kesselring received an 

aggregate sentence of 11 months and 29 days to 23 months and 29 days’ 

incarceration concurrent with 5 years of intermediate punishment, the first 

18 months of which was to be served as house arrest. Kesselring filed a 

direct appeal that afforded him no relief. This timely PCRA petition 

followed.3

In reviewing the denial of PCRA relief, we examine whether “the 

PCRA court’s determinations are supported by the record and are 

free of legal error.” Commonwealth v. Robinson, --- Pa. ----, -

---, 82 A.3d 998, 1005 (2013) (quotation and quotation marks 

omitted). See Commonwealth v. Strong, 563 Pa. 455, 461 n. 

3, 761 A.2d 1167, 1170 n. 3 (2000) (“Since most PCRA appeals 

involve ... issues raising mixed questions of fact and law, our 

standard of review is whether the findings of the PCRA court are 

____________________________________________

2 18 Pa.C.S. § 6105(a)(1).

3

It is undisputed that this petition is timely, having been filed on October 4, 

2013, approximately seven months after his sentence became final on March 

21, 2013. Accordingly, we need not recite the PCRA’s statutory time limits.
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supported by the record and free of legal error.”) (citations 

omitted). “The PCRA court’s credibility determinations, when 

supported by the record, are binding on this Court; however, we 

apply a de novo standard of review to the PCRA court’s legal 

conclusions.” Commonwealth v. Roney, 622 Pa. 1, 16, 79 

A.3d 595, 603 (2013) (citation omitted).

Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014).

Additionally, when examining a claim of ineffective assistance of 

counsel, we note,

[t]rial counsel is presumed to be effective, and appellant has the 

burden of proving otherwise. Commonwealth v. Williams, 524 

Pa. 218, 570 A.2d 75, 81 (1990). Appellant must prove: (1) his 

underlying claim is of arguable merit; (2) counsel’s performance 

lacked a reasonable basis; and (3) counsel’s action or inaction 

caused him prejudice. Commonwealth v. Pierce, 515 Pa. 153, 

527 A.2d 973, 975-77 (1987); see also Commonwealth v. 

Gwynn, 596 Pa. 398, 943 A.2d 940, 945 (2008). To 

demonstrate prejudice, appellant must show there is a 

reasonable probability that, but for counsel’s error, the outcome 

of the proceeding would have been different. Commonwealth 

v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001). When it is 

clear the party asserting an ineffectiveness claim has failed to 

meet the prejudice prong of the ineffectiveness test, the claim 

may be dismissed on that basis alone, without a determination 

of whether the first two prongs have been met. 

Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 224-25 

(2007) (citation omitted). Failure to meet any prong of the test 

will defeat an ineffectiveness claim. Id., at 224. Counsel is not 

ineffective for failing to raise meritless claims. Commonwealth 

v. Peterkin, 538 Pa. 455, 649 A.2d 121, 123 (1994) (citation 

omitted).

Commonwealth v. Wright, 961 A.2d 119, 148-49 (Pa. 2008) (footnote 

omitted).

Kesselring’s first claim is that the PCRA court erred in determining that 

trial counsel was not ineffective for failing to challenge the existence of 

probable cause in the search warrant affidavit. Specifically, he argues the 
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affidavit of probable cause merely refers to Officer Beyer having observed a 

rifle, without any further explanation of the different possibilities of what 

“rifle” meant, or any accompanying explanation of how Officer Beyer came 

to the conclusion that what he had seen was a firearm.4

In analyzing this argument, the PCRA court took note of the legal 

principles applicable to the review of the sufficiency of an affidavit of 

probable cause. The PCRA court correctly stated:

Before an issuing authority may issue a constitutionally valid 

search warrant, he or she must be furnished with information 

sufficient to persuade a reasonable person that probable cause 

exists to conduct a search. The standard for evaluating a search 

warrant is a ‘totality of the circumstances’ test as set forth in 

Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 

(1983), and adopted in Commonwealth v. Gray, 509 Pa. 476, 

503 A.2d 931 (1985). A magistrate is to make a ‘practical, 

common sense decision whether, given all the circumstances set 

forth in the affidavit before him, including the ‘veracity’ and 

‘basis of knowledge’ of persons supplying hearsay information, 

there is a fair probability that contraband or evidence of a crime 

will be found in a particular place.’ The information offered to 

establish probable cause must be viewed in a common sense, 

non-technical manner. Probable cause is based on a finding of 

the probability, not a prima facie showing of criminal activity, 

and deference is to be accorded a magistrate's finding of 

probable cause. 

____________________________________________

4

For purposes of 18 Pa.C.S. § 6105, a firearm is defined as:

(i) Firearm.--As used in this section only, the term “firearm” 

shall include any weapons which are designed to or may readily 

be converted to expel any projectile by the action of an explosive 

or the frame or receiver of any such weapon.

18 Pa.C.S. § 6106(i).
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PCRA Court Opinion, 3/4/2014, at 4, quoting Commonwealth v. Ryerson, 

817 A.2d 510, 513-14 (Pa. Super. 2003) (citation omitted).

Further, we note that when reviewing a challenge to the existence of 

probable cause in support of a search warrant,

“An affidavit of probable cause to support a search warrant does 

not require a prima facie showing of criminal activity on the part 

of the occupants of the premises to be searched.” 

Commonwealth v. Gutierrez, 969 A.2d 584, 588 (Pa. Super. 

2009) (quotation and quotation marks omitted), appeal denied, 

603 Pa. 690, 983 A.2d 726 (2009). Moreover, “[a] reviewing 

court may not conduct a de novo review of the issuing 

authority's probable cause determination. The role of both the 

reviewing court and the appellate court is confined to

determining whether there is substantial evidence in the record 

supporting the decision to issue the warrant.” Commonwealth 

v. Wallace, 953 A.2d 1259, 1262 (Pa. Super. 2008) (quotation 

and quotation marks omitted), reversed on other grounds, 615 

Pa. 395, 42 A.3d 1040 (2012). “We must limit our inquiry to the 

information within the four corners of the affidavit submitted in 

support of probable cause when determining whether the 

warrant was issued upon probable cause.” Commonwealth v. 

Rogers, 419 Pa. Super. 122, 615 A.2d 55, 62 (1992).

Commonwealth v. Bourgos, 64 A.3d 641, 655-56 (Pa. Super. 2013).

The affidavit of probable cause states, in relevant part:

I [Officer Eric B. Beyer, Reading Township Police Department] 

have been a police officer in the Commonwealth of Pennsylvania 

for approximately eleven years. Prior to becoming employed as 

a police officer, I attended and successfully completed the 

required basic training as outlined by the Municipal Police 

Officer’s Education and Training Commission, through Harrisburg 

Area Community College. As a police officer, I am authorized by 

law to serve search warrants and make arrests. I am also a 

firearms instructor and have a familiarity with handguns, rifles, 

shotguns, and other firearms.
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On 12 December 2010 at or about 1310 hrs., I went to 2630 

Hunterstown-Hampton Road, New Oxford, Reading Township, 

Adams County, PA 17350, in an effort to follow up on a 

Harassment complaint. While at this location, I made contact 

with Ronald Ray Kesselring, who is the resident at this location. 

Kesselring is also the owner of Café’s Custom Cycles, a business 

located in a detached building at this address. As such, 

Kesselring has unfettered access to the residence, business, and 

detached garage. Upon my arrival at 2630 HunterstownHampton Road, New Oxford, Reading Township, Adams County, 

PA 173450 [sic], I was invited into the residence by Ronald Ray 

Kesselring, who, as the resident therein, has the right to permit 

entry. During my presence at this location, I observed what 

appeared to me, based upon my training, education, and 

experience, to be a functional rifle, on top of the refrigerator.

After completing my interview at 2630 Hunterstown-Hampton 

Road, New Oxford, Reading Township, Adams County, PA 17350, 

I obtained a criminal history via the National Crime Information 

Computer Systems, for Ronald Ray Kesselring. This criminal 

history shows that on 3 March 1987, Ronald Ray Kesselring was 

arrested, and subsequently convicted of a felony under the act of 

April 14, 1972, also known as the Controlled Substances, Drug, 

Device, and Cosmetic Act. As such, Ronald Ray Kesselring would 

be prohibited from possessing, using, manufacturing, controlling, 

selling or transferring firearms.

It has been my experience, based upon my training, education, 

and prior investigations, that persons that own and possess 

firearms will own or possess multiple firearms. My training, 

education and experience has shown that persons that possess 

firearms will possess them in multiple locations, such as their 

residence or business and other buildings that they may control.

Affidavit of Probable Cause, 12/14/2010.

Our review leads us to conclude the PCRA court committed no error 

dismissing Kesselring’s claim that the affidavit did not provide probable 

cause. We agree with the PCRA court that in reading the entire affidavit, it 

is clear that Officer Beyer was referring to a firearm when he related that he 
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had seen a rifle in Kesselring’s kitchen. We further agree, at least within the 

context of this matter, that the word “rifle” is a word of common use and 

understanding that does not require additional clarification. The affidavit 

uses the terms “rifle” and “firearm” interchangeably. This is especially 

relevant in the paragraph in which Officer Beyer states that as a convicted 

felon, Kesselring is not permitted to possess a firearm. While Kesselring 

argues “rifle” could be interpreted as any of a variety of devices, including 

spring loaded pellet guns, the affidavit makes no sense if a person was to 

assume that by “rifle”, Officer Beyer meant any of the possible definitions, 

only one of which would be illegal for Kesselring to possess. 

In essence, read in a common sense manner, the affidavit of probable 

cause sets forth Officer Beyer’s familiarity with firearms, his belief that he 

saw a firearm in Kesselring’s kitchen, and the fact that Kesselring has a 

felony conviction making it illegal for him to possess a firearm. These 

statements set forth probable cause to believe Kesselring was illegally in 

possession of a firearm. Accordingly, the PCRA court correctly determined 

trial counsel was not ineffective for failing to challenge the existence of 

probable cause in the search warrant.

Kesselring’s second claim is that the PCRA court erred in determining

trial counsel was ineffective for failing to challenge the veracity of the search 

warrant. Here, the PCRA court determined the issue had been previously 

litigated on direct appeal. See Commonwealth v. Kesselring, 55 A.3d 
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146 (Pa. Super. 2012) (unpublished memorandum).5 Accordingly, pursuant 

to 42 Pa.C.S. § 9543(a)(3), the claim is not cognizable under the PCRA. 

Additionally, given that trial counsel did challenge the veracity of the 

information contained in the search warrant, counsel cannot have been 

ineffective for failing to do that which was done. Therefore, not only is this 

claim not cognizable under the PCRA, it is also substantively without merit. 

Because the PCRA court’s order is supported by the record and is free 

of legal errors, we affirm.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2015

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5 Specifically, the claim raised on direct appeal was: 

Whether the Adams County Court of Common Pleas erred as a 

matter of law in denying [Kesselring’s] Omnibus Pre-trial Motion 

to Suppress Evidence of the firearms seized was a result of the 

search warrant which was issued based upon false and 

inaccurate information contained in the Affidavit of Probable 

Cause?

Id. at 3.