J-S51022-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALLEN KELLY

Appellant No. 871 MDA 2013

Appeal from the PCRA Order April 17, 2013

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0001708-2008

BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED FEBRUARY 24, 2015

Allen Kelly appeals from the order entered in the Court of Common 

Pleas of York County, that denied, after a hearing, his first, timely request 

for relief, filed pursuant to the Pennsylvania Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. § 9741 et seq. On December 11, 2008, Kelly pleaded 

guilty to driving under the influence — highest rate of alcohol (third offense), 

and the trial court sentenced him to a term of imprisonment of one to five 

years.1 The charges arose after Kelly was stopped for a motor vehicle code 

violation — making a right turn on a red light.2 The sole issue raised in this 

appeal is Kelly’s claim that prior counsel were ineffective in failing to file a 

____________________________________________

1 See 75 Pa.C.S. § 3802(c).

2 See 75 Pa.C.S. § 3112(a)(3)(i).
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suppression motion on his behalf “based upon the incorrect information 

contained in the Criminal Complaint and Affidavit of Probable Cause and the 

issues surrounding the Officer’s honesty and truthfulness[.]” Kelly’s Brief at 

4. For the following reasons, we affirm.

The history of this case is discussed in this Court’s opinion filed in 

connection with Kelly’s direct appeal. Commonwealth v. Kelly, 5 A.3d 370 

(Pa. Super. 2010), appeal denied, 32 A.3d 1276 (Pa. 2011).3

The PCRA court explains the basis of the present appeal as follows:

[Kelly] had difficulty with several Attorneys while pending trial. 

He elected to proceed pro se and entered a plea based on a 

plea agreement.

At the recent PCRA hearing [Kelly] contend[ed] that his 

Attorney[s] should have filed a suppression motion and it was 

the Attorney[s’] failure to do so that cause[d] his 

disagreements with them.

____________________________________________

3 Generally, a PCRA petition, including second and subsequent petitions, 

must be filed within one year of the date the judgment of sentence becomes 

final. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence becomes final “at 

the conclusion of direct review, including discretionary review in the 

Supreme Court of the United States and the Supreme Court of Pennsylvania, 

or at the expiration of time for seeking the review.” 42 Pa.C.S. § 

9545(b)(3). 

The Pennsylvania Supreme Court denied Kelly’s petition for allowance 

of appeal on November 1, 2011. Thereafter, Kelly’s judgment became final 

on January 30, 2012, at the end of the 90-day period for filing a petition for 

writ of certiorari in the United States Supreme Court. As Kelly filed the 

present PCRA petition on December 20, 2012, the petition is timely.
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[Kelly] has filed a 1925(b) statement that the motion to 

suppress would have had merit, and that there was no 

legitimate trial strategy for not filing a suppression motion.

Each of [Kelly’s] prior attorneys testified that they did not file a 

suppression motion because they deemed it to be without merit.

PCRA Opinion, 6/20/2013, at 1.

At the outset, we state our standard of review:

Our standard of review of a PCRA court’s denial of a 

petition for postconviction relief is well-settled: We must 

examine whether the record supports the PCRA court's 

determination, and whether the PCRA court’s 

determination is free of legal error. The PCRA court's 

findings will not be disturbed unless there is no support 

for the findings in the certified record.

Further, considering just the specific claim appellant has raised 

in this appeal, a PCRA petitioner will be granted relief only when 

he proves, by a preponderance of the evidence, that his 

conviction or sentence resulted from the “[i]neffective assistance 

of counsel which, in the circumstances of the particular case, so 

undermined the truth-determining process that no reliable 

adjudication of guilt or innocence could have taken place.” 42 

Pa.C.S.A. § 9543(a)(2)(ii). As our supreme court has stated:

It is well-established that counsel is presumed to have 

provided effective representation unless the PCRA 

petitioner pleads and proves all of the following: (1) the 

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

action or inaction lacked any objectively reasonable basis 

designed to effectuate his client's interest; and (3) 

prejudice, to the effect that there was a reasonable 

probability of a different outcome if not for counsel's 

error.

The PCRA court may deny an ineffectiveness claim if the 

petitioner’s evidence fails to meet a single one of these prongs. 

Moreover, a PCRA petitioner bears the burden of demonstrating 

counsel’s ineffectiveness. 
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Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (case 

citations omitted).

The failure to file a suppression motion may be evidence of ineffective 

assistance of counsel. Commonwealth v. Ransome, 402 A.2d 1379, 

1381–1382 (Pa. 1979). However, if the grounds underpinning the 

suppression motion or objection are without merit, counsel will not be 

deemed to have been ineffective in failing to so move or object. Id. at 

1382.

Here, Kelly maintains that “[t]here were numerous errors in the 

Criminal Complaint and Affidavit of Probable Cause. Each one by themselves 

may not be sufficient to file a motion. However, the totality warranted the 

filing of a suppression motion.” Kelly’s Brief at 9 (“Summary of Argument”).

Kelly’s prior counsel who represented him prior to the entry of his final 

guilty plea testified at the PCRA hearing concerning their representation. 

Anthony Tambourino, Esquire, who represented Kelly beginning in February 

to March of 2008, testified that inaccuracies in the criminal complaint 

regarding the race and ethnicity would have no impact for purposes of a 

suppression motion. Furthermore, Mr. Tambourino stated that although 

Kelly believed the stop was pretextual, the stop was made for a motor 

vehicle code violation. Finally, Mr. Tambourino testified that he read the

statement in the criminal complaint that an alcoholic odor was coming from 

the “passenger compartment” to mean inside of the car. He stated that 
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based upon the affidavit of probable cause and his discussions with Kelly, 

Kelly had not provided any evidence that what the officer said was untrue. 

Ronald Jackson, Esquire, who represented Kelly from September, 

2008, to November 2008, testified that he became involved as standby 

counsel at the hearing on Kelly’s request to withdraw his guilty plea. 

Jackson testified that Kelly filed a pro se motion to suppress because he 

received an unsigned copy of the affidavit, and that this pro se motion was 

denied by the trial judge.4 Mr. Jackson further testified that he was aware of 

Kelly’s concerns but did not see any reason to file a suppression motion 

where it was “strictly a credibility issue with the officer in regards to the stop 

and being a motor vehicle violation, where the ethnicity issue was an issue 

that would go to the officer’s recollection,”5and that he took the officer’s 

statement that alcohol was detected coming from the “passenger

compartment” to mean the inside of the car. He reiterated that he did not 

feel a suppression motion had any merit. 

____________________________________________

4 See Commonwealth v. Kelly, supra, 5 A.3d at 371 n.2 (“While Kelly 

acknowledged he received the signed copy of the affidavit he also argued 

the affidavit had been signed only ‘after the fact that [he] put a motion in.’ 

N.T., 9/22/08, at 4. Judge Blackwell, after hearing argument from both 

counsel and Kelly, concluded the issue was frivolous. Id. at 3.”) & n.3 

(noting Judge Blackwell denied Kelly’s pro se motion omnibus pretrial 

motion).

5 N.T., 4/17/2013, at 24–25.
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Scott McCabe, Esquire, who was appointed to represent Kelly in 

November of 2008, testified that there was no basis to file a suppression 

motion since the officer had a reason to stop the car, “and that was the right 

turn on red.”6 He testified “there were not errors that you would file a 

pretrial motion for.”

7

 He stated: “What [Kelly] wanted is against what the 

law says and I’m not in the practice of filing meritless, frivolous motions.”8

At the PCRA hearing, Lori Yost, Esquire, who was appointed to assist 

Kelly in post-sentence/appeal proceedings also presented testimony 

concerning her representation to “complete the record with respect to what 

... her involvement was in the case.”9 She testified she filed an appeal on 

behalf of Kelly, and argued that his plea was involuntary because he was not 

represented by counsel at that time. She stated that this Court affirmed the 

decision of the trial court, and she then filed a petition for allowance of 

appeal in the Supreme Court, which was denied. She further stated that she 

did not file a petition for reconsideration, as she did not see a legitimate 

basis for reconsideration. She added that Kelly did not request her to file a 

petition for reconsideration. Finally, she stated that she was aware that 

____________________________________________

6 N.T., 4/17/2013, at 44. 

7

Id. at 41.

8

Id. at 43. 

9 See N.T., 4/17/2013, at 50–51.
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Kelly was unhappy with his prior counsel for not filing motions that he 

wanted them to file on his behalf.

Lastly, Kelly testified that he believed counsel was inappropriate 

because “none of them wanted to do what I wanted to do as far as 

suppressions or raising any issues or pretrial motions.” N.T., 4/17/2013, at 

71–72. He acknowledged that prior to the entry of his guilty plea, the trial 

judge advised him that he could go to trial, require the Commonwealth to 

prove its case, and raise any technical issues. 

The PCRA court agreed with the conclusion of Kelly’s counsel that 

there was no basis for filing a suppression motion, and denied the PCRA 

petition.10 We conclude Kelly’s argument presents no reason to disturb the 

PCRA court’s conclusion.

A defendant “may make a motion to the court to suppress any 

evidence alleged to have been obtained in violation of the defendant’s 

rights.” Pa.R.Crim.P. 581. Here, the record makes clear that counsel were 

aware of Kelly’s concerns, and correctly concluded that no basis existed for 

the filing of a suppression motion. Although Kelly believed the stop was 

pretextual, “[a]n officer may conduct a lawful traffic stop if he or she 

reasonably believes that a provision of the Motor Vehicle Code has been 

violated. Commonwealth v. Steinmetz, 656 A.2d 527, 528 (Pa. Super. 

____________________________________________

10 See N.T., 4/17/2013, at 106. The PCRA court reiterated its conclusion in 

its Pa.R.A.P. 1925(a) opinion. See PCRA Court Opinion, 6/20/2013, at 2.
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1995). See also Commonwealth v. Busser, 56 A.3d 419, 424 (Pa. 

Super. 2012) (officer’s observations enabled him to articulate specific facts 

that established an unequivocal motor vehicle code violation, and therefore 

probable cause existed and stop was lawful), appeal denied, 74 A.3d 125 

(Pa. 2013). Furthermore, the inaccuracies in the criminal complaint with 

regard to the wrong checked boxes for race and ethnicity, and the 

description of an alcoholic odor in the “passenger compartment” do not 

demonstrate any “violation of the defendant’s rights” that would not provide 

a basis for a suppression motion. Pa.R.Crim.P. 581. Therefore, counsel 

cannot be held ineffective for failing to file a meritless motion. See 

Ransome, supra.

Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/24/2015