J-S25013-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DARIUS MCDOWELL 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2014 EDA 2022

Appeal from the PCRA Order Entered August 8, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0009409-2017

BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 11, 2023

Appellant Darius McDowell appeals from the order denying his first Post 

Conviction Relief Act1 (PCRA) petition. Appellant argues that his trial counsel 

was ineffective for failing to call a witness at trial and for failing to challenge

the weight of the evidence. Appellant also claims that appellate counsel was

ineffective for failing to raise the denial of Appellant’s motion to suppress on 

direct appeal. We affirm. 

The underlying facts of this matter are well known to the parties. See 

Commonwealth v. McDowell, 1296 MDA 2017, 2020 WL 3412338, at *1-2 

(Pa. Super. filed June 22, 2020) (unpublished mem.). Briefly, in October of 

2017, police officers responded to a call about a man in a blue shirt with a gun 

banging on the door of a residence. The officers approached a car parked 

____________________________________________

1 42 Pa.C.S. §§ 9541-9546. 
J-S25013-23

- 2 -

nearby and saw a fired cartridge casing on the car’s windshield. Appellant 

was wearing a blue shirt and was seated inside that vehicle. The officers also 

saw additional fired cartridge casings inside the vehicle. After the officers 

opened the car door, Appellant refused to get out of the car and struggled 

with the officers. The officers arrested Appellant and recovered a firearm from 

his pants pocket. Appellant was charged with persons not to possess firearms 

and other offenses.2 

Appellant filed a motion to suppress the firearm and related evidence, 

which the trial court denied after a hearing on July 24, 2018. 

At trial, Appellant testified that his girlfriend Shakira Maddox owned the 

firearm and the car in which Appellant was sitting when the police arrested 

him. See McDowell, 2020 WL 3412338, at *3. Appellant denied touching

or possessing the firearm and stated that Ms. Maddox had locked the firearm 

in the car’s glove compartment before she got out. See id. Officer Allen Reed

testified that Ms. Maddox had given a statement in which she claimed that she 

was the owner of the firearm. See id. at *7. Ms. Maddox did not testify at 

trial. 

On August 16, 2018, a jury convicted Appellant of persons not to 

possess firearms. The trial court sentenced Appellant to a term of seven and 

one-half to fifteen years’ incarceration followed by three years’ probation on 

____________________________________________

2 18 Pa.C.S. § 6105(a)(1). 
J-S25013-23

- 3 -

October 18, 2018. Kenneth Williams, Esq. (trial counsel), of the Defender 

Association of Philadelphia represented Appellant at trial and at sentencing. 

Appellant did not file any post-sentence motions, but he filed a timely 

notice of appeal. On direct appeal, Appellant claimed that the trial court erred 

in one of its evidentiary rulings, had shown bias towards the Commonwealth 

and against Appellant, and failed to give a curative jury instruction. See 

McDowell, 2020 WL 3412338, at *3-4. This Court affirmed the judgment of 

sentence, and our Supreme Court denied Appellant’s petition for allowance of 

appeal on December 21, 2020. See id. at *8, appeal denied, 242 A.3d 1252

(Pa. 2020). Shonda Williams, Esq. (appellate counsel), of the Defender 

Association of Philadelphia represented Appellant on direct appeal. 

On January 29, 2021, Appellant filed a pro se PCRA petition, and the 

PCRA appointed Peter Levin, Esq., to represent Appellant. Attorney Levin filed 

an amended PCRA petition on July 30, 2021. Appellant claimed that trial 

counsel was ineffective for failing to call Shakira Maddox as a witness at trial

and for failing to file a post-sentence motion challenging the weight of the 

evidence. Am. PCRA Pet., 7/30/21, at 4. Appellant also argued that appellate 

counsel was ineffective for failing to challenge the denial of Appellant’s 

suppression motion on direct appeal. Id. 

The PCRA court held an evidentiary hearing on March 24, 2022, limited 

to the issue of whether trial counsel was ineffective for failing to call Ms. 

Maddox at trial. Appellant, Ms. Maddox, and trial counsel testified at this 
J-S25013-23

- 4 -

hearing. On August 8, 2022, the PCRA court filed an opinion and order 

denying Appellant’s PCRA petition. Appellant filed a timely notice of appeal. 

The PCRA court did not order Appellant to comply with Pa.R.A.P. 

1925(b), but filed a Rule 1925(a) statement adopting its August 8, 2022 

opinion and order. See PCRA Ct. Statement, 9/12/22. 

On appeal, Appellant raises four issues, which we reorder as follows:

1. Whether trial counsel was ineffective for failing to call a witness 

to testify at Appellant’s trial?

2. Whether trial counsel was ineffective for failing to file a post 

sentence motion that the verdict was against the weight of 

evidence?

3. Whether appellate counsel was ineffective for failing to appeal 

the denial of the motion to suppress?

4. Whether the PCRA court was in error in not granting relief on 

the issue that counsel was ineffective?

Appellant’s Brief at 7. 

Timeliness of PCRA Petition

Before we may address the issues presented, we must first determine 

whether the PCRA court had jurisdiction to consider Appellant’s PCRA petition. 

A PCRA petition “shall be filed within one year of the date the judgment 

becomes final[.]” 42 Pa.C.S. § 9545(b)(1). Further, Section 9545 explains:

For purposes of this subchapter, a judgment 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); see also Pa.R.Crim.P. 901, cmt. 
J-S25013-23

- 5 -

Under the PCRA, Appellant’s judgment of sentence did not become final 

until May 20, 2021, 150 days after the Pennsylvania Supreme Court denied 

Appellant’s petition for allowance of appeal, when the time for petitioning for 

a writ of certiorari in the United States Supreme Court expired. See 42 

Pa.C.S. § 9545(b)(3); Miscellaneous Order Addressing the Extension of 

Filing Deadlines [COVID-19], 334 F.R.D. 801 (U.S. 2020).

3

 Therefore, 

when Appellant filed his pro se PCRA petition on January 29, 2021, the 150-

day period in which Appellant could have pursued an appeal in the United 

States Supreme Court had not yet expired, and his pro se petition was 

premature. 

However, Attorney Levin filed a PCRA petition on Appellant’s behalf on 

July 30, 2021, after Appellant’s judgment of sentence became final. 

Accordingly, we conclude that this timely filing permitted the PCRA court to 

address Appellant’s claims. See e.g., Commonwealth v. Williams, 472 EDA 

2020, 2021 WL 2287462 (Pa. Super. filed June 1, 2021) (unpublished mem.) 

(concluding that although the defendant filed a premature pro se PCRA 

petition prior to the expiration of the time for seeking direct review, the 

subsequent filing of a timely, counseled PCRA petition occurred after the 

defendant’s judgment of sentence became final, and it allowed the PCRA court 

____________________________________________

3 The United States Supreme Court rescinded this order on July 19, 2021. 

Miscellaneous Order Rescinding COVID-19 Related Orders, 338 F.R.D. 

801 (U.S. 2021). 
J-S25013-23

- 6 -

to proceed with its review of the defendant’s claims under the PCRA).4

Therefore, we will address the merits of Appellant’s claims. 

Failure to Call a Witness

In his first issue, Appellant argues that trial counsel was ineffective 

because he failed to call Shakira Maddox as a witness. Appellant’s Brief at 15-

18. Appellant notes that at the PCRA evidentiary hearing, Ms. Maddox testified 

that she owned the firearm and the vehicle involved in this case, and that she 

locked the firearm in the glove box of her car when she got out while Appellant 

remained behind in the vehicle. Id. at 15 (citing N.T. PCRA Hr’g, 3/24/22, at 

16-17). Trial counsel had interviewed Ms. Maddox prior to trial but did not 

issue a subpoena for her to testify. Id. at 15-16 (citing N.T. PCRA Hr’g, 

3/24/22, at 31, 34). Appellant argues that when Ms. Maddox failed to appear 

at Appellant’s trial, trial counsel should have issued a subpoena for her and 

requested a continuance. Id. at 16. Appellant claims that counsel’s failure to 

call Ms. Maddox as a witness prejudiced him because her testimony would 

have corroborated Appellant’s testimony that he did not possess the firearm 

when the police arrested him because it was locked in the car’s glove 

compartment. Id. at 17-18. 

Our standard of review from the denial of a PCRA petition “is limited to 

examining whether the PCRA court’s determination is supported by the 

____________________________________________

4 Unpublished, non-precedential decisions of this Court that are filed after May 

1, 2019, “may be cited for their persuasive value.” Pa.R.A.P. 126(b)(1)-(2); 

see also 210 Pa. Code § 65.37(B).
J-S25013-23

- 7 -

evidence of record and whether it is free of legal error.” Commonwealth v. 

Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citation omitted). This 

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

conclusions. Commonwealth v. Hutchinson, 25 A.3d 277, 284 (Pa. 2011). 

A PCRA court’s credibility determinations, however, are binding on this Court 

when such determinations are supported by the record. Id.; see also 

Commonwealth v. Davis, 262 A.3d 589, 595 (Pa. Super. 2021) (stating that 

“[t]his Court grants great deference to the findings of the PCRA court if the 

record contains any support for those findings” (citation omitted)). 

[T]o establish a claim of ineffective assistance of counsel, a 

defendant must show, by a preponderance of the evidence, 

ineffective 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. The burden is on the defendant to prove all three of the 

following prongs: (1) the underlying claim is of arguable merit; 

(2) that counsel had no reasonable strategic basis for his or her 

action or inaction; and (3) but for the errors and omissions of 

counsel, there is a reasonable probability that the outcome of the 

proceedings would have been different.

We have explained that a claim has arguable merit where the 

factual averments, if accurate, could establish cause for relief. 

Whether the facts rise to the level of arguable merit is a legal 

determination.

The test for deciding whether counsel had a reasonable basis for 

his [or her] action or inaction is whether no competent counsel 

would have chosen that action or inaction, or, the alternative, not 

chosen, offered a significantly greater potential chance of success. 

Counsel’s decisions will be considered reasonable if they 

effectuated his [or her] client’s interests. We do not employ a 

hindsight analysis in comparing trial counsel’s actions with other 

efforts he may have taken.
J-S25013-23

- 8 -

Prejudice is established if there is a reasonable probability that, 

but for counsel’s errors, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

Boilerplate allegations and bald assertions of no reasonable basis 

and/or ensuing prejudice cannot satisfy a petitioner’s burden to 

prove that counsel was ineffective. Moreover, a failure to satisfy 

any prong of the ineffectiveness test requires rejection of the 

claim of ineffectiveness.

Sandusky, 203 A.3d at 1043-44 (citations omitted and formatting altered). 

Further, “[c]ounsel cannot be found ineffective for failing to pursue a 

baseless or meritless claim.” Davis, 262 A.3d at 596 (citation and quotation 

marks omitted). 

“A failure to call a witness is not per se ineffective assistance of counsel 

for such decision usually involves matters of trial strategy.” Commonwealth 

v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012) (citation and quotation marks 

omitted). 

With respect to a claim of ineffective assistance of counsel for failing to 

call a potential witness, the defendant must establish that

(1) the witness existed; (2) the witness was available to testify 

for the defense; (3) counsel knew of, or should have known of, 

the existence of the witness; (4) the witness was willing to testify 

for the defense; and (5) the absence of the testimony of the 

witness was so prejudicial as to have denied the defendant a fair 

trial.

Id. (citations omitted). 

Here, the PCRA made the following findings of fact and conclusions of 

law:
J-S25013-23

- 9 -

32. [Trial counsel’s] testimony was credible.

33. [Appellant] rejected [trial counsel’s] suggestion of 

requesting a continuance to obtain Ms. Maddox as a trial 

witness, and instead elected to proceed even if she didn’t 

appear.

* * *

42. Even if true, Ms. Maddox’s testimony that she locked the 

gun in the glovebox before leaving to enter the daycare 

center with her children does not rebut the testimony of the 

officers that that [Appellant] was in possession of the gun 

when they saw him in the vehicle, when she was not 

present, nor does it rebut evidence that the glove box was 

open after [Appellant] was arrested.

43. Since Ms. Maddox’s testimony would not have rebutted the 

testimony of the police regarding the events after she left 

the scene, [Appellant] suffered no prejudice from the 

absence of her testimony.

44. Because the same evidence Ms. Maddox would have offered 

was presented through her statement at trial, there was no 

prejudice to [Appellant] from her failure to appear.

45. If “counsel’s failure to seek compulsory process to obtain [a 

witness’]s testimony . . . was the result of sloth or lack of 

awareness of the available alternatives, then his assistance 

was ineffective.” Commonwealth v. Twiggs, 331 A.2d 

440, 443 (Pa. 1975).

46. Trial counsel’s efforts to obtain the testimony of Ms. Maddox 

were reasonable under the circumstances.

47. Once it became apparent that she was not returning his calls 

and might not appear for trial, trial counsel offered to seek 

a continuance of trial in order to obtain Ms. Maddox’s 

testimony.

48. This offer to seek a continuance was reasonable under the 

circumstances.

49. [Appellant] rejected that offer, and instead elected to 

proceed to trial, whether or not Ms. Maddox would appear.
J-S25013-23

- 10 -

50. Having rejected his trial counsel’s offer to request a trial 

continuance for Ms. Maddox’s appearance, and deciding 

instead to proceed whether or not she appeared, [Appellant]

made the ultimate decision.

51. Counsel will not be deemed ineffective where his attempt to 

secure the testimony of Ms. Maddox was reasonable under 

the circumstances, and his last opportunity to seek a 

continuance to obtain her testimony was rejected by 

[Appellant].

PCRA Ct. Op. & Order, 8/8/22, at 7, 9-10 (some citations omitted). 

Following our review of the record, we find no error in the PCRA court’s 

conclusion that Appellant failed to establish that trial counsel was ineffective 

for failing to call Ms. Maddox as a witness at trial. See Sandusky, 203 A.3d 

at 1043-44; see also Sneed, 45 A.3d at 1109. Therefore, we affirm on the 

basis of the PCRA court’s analysis of this issue. See PCRA Ct. Op. & Order, 

8/8/22, at 7, 9-10. Accordingly, Appellant is not entitled to relief on this claim. 

Failure to Raise a Weight Claim

In his second issue, Appellant argues that trial counsel was ineffective 

for failing to file a post-conviction motion challenging the weight of the 

evidence. Appellant’s Brief at 20-23. Appellant contends that the verdict was 

against the weight of the evidence because Appellant’s testimony and Ms. 

Maddox’s statement that the firearm was locked in the glove compartment of 

the car contradict the testimony of the police officers. Id. at 20-21. Appellant 

further argues that the Commonwealth did not present any scientific evidence,

such as fingerprints or DNA from the firearm or the spent shell casings, to 

corroborate the officers’ testimony that Appellant possessed Ms. Maddox’s 
J-S25013-23

- 11 -

firearm. Id. Appellant claims that counsel’s omission prejudiced him because 

it waived this claim both on post-sentence and appellate review. Id. at 20. 

Appellant asserts that if his trial counsel had preserved a weight-of-theevidence claim for appeal, an appellate court would have reversed his 

conviction. Id. at 20-21.

To satisfy the arguable merit prong of a claim that counsel was 

ineffective for failing to file a post-sentence motion challenging the weight of 

the evidence, the petitioner “must demonstrate that the verdict was against 

the weight of the evidence such that counsel may be deemed ineffective in 

failing to file the post-sentence motion.” Commonwealth v. Smith, 181 

A.3d 1168, 1186 (Pa. Super. 2018) (citation omitted). When there is no merit 

to the underlying weight-of-the-evidence claim, a PCRA petitioner is not 

entitled to relief on a claim that trial counsel was ineffective in failing to file a 

post-sentence motion to preserve the weight claim for appeal. Id. at 1187. 

Our Supreme Court has explained:

A motion for a new trial based on a claim that the verdict is against 

the weight of the evidence is addressed to the discretion of the 

trial court. A new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same facts 

would have arrived at a different conclusion. When a trial court 

considers a motion for a new trial based upon a weight of the 

evidence claim, the trial court may award relief only when the 

jury’s verdict is so contrary to the evidence as to shock one’s 

sense of justice and the award of a new trial is imperative so that 

right may be given another opportunity to prevail. . . . 

At trial, the jury [is] the ultimate fact-finder and the sole arbiter 

of the credibility of each of the witnesses. Issues of witness 

credibility include questions of inconsistent testimony and 

improper motive. A jury is entitled to resolve any inconsistencies 
J-S25013-23

- 12 -

in the Commonwealth’s evidence in the manner that it sees fit. . . 

.

[I]nconsistencies in eyewitness testimony are not 

sufficient to warrant a new trial on grounds that the verdict 

was against the weight of the evidence.

Commonwealth v. Jacoby, 170 A.3d 1065, 1080-81 (Pa. 2017) (citations 

and quotation marks omitted, emphasis added).

Here the PCRA court explained:

39. Having observed the testimony [at trial], the court’s 

conscience is not at all shocked by the verdict. To the 

contrary, the verdict is consistent with the weight of the 

evidence.

40. [Appellant’s] claim that trial counsel was ineffective for 

failing to file a post sentence motion asserting that the 

verdict was against the weight of the evidence is without 

merit, and [Appellant] suffered no prejudice from trial 

counsel’s decision (or failure) to file a post-sentence motion 

on that ground.

PCRA Ct. Op. & Order, 8/8/22, at 8. 

Following our review of the record, we find no error in the PCRA court’s 

conclusion that Appellant failed to establish that trial counsel was ineffective 

for failing to challenge the weight of the evidence. See Sandusky, 203 A.3d 

at 1043-44; see also Smith, 181 A.3d at 1186-87. The PCRA court also

presided over Appellant’s jury trial and concluded that the verdict did not 

shock the conscience of the court. See PCRA Ct. Op. & Order, 8/8/22, at 8; 

see also Jacoby, 170 A.3d 1065, 1080-81. Therefore, the underlying 

weight-of-the-evidence claim lacks arguable merit, and trial counsel cannot 
J-S25013-23

- 13 -

be ineffective for failing to raise a meritless claim. See Davis, 262 A.3d at 

596. Appellant is not entitled to relief on this issue.

Failure to Raise Suppression Claim

In his final issue, Appellant argues that appellate counsel was ineffective 

for failing to challenge the denial of his motion to suppress on direct appeal. 

Appellant’s Brief at 18-20. Appellant claims that the police lacked reasonable 

suspicion to detain him. Id. at 19. Appellant contends that an anonymous 

tip, without more, is insufficient to “constitute reasonable grounds for the 

police to suspect that an individual is armed and dangerous.” Id. (citing 

Commonwealth v. Jackson, 698 A.2d 571 (Pa. 1997)). Appellant contends 

that because his suppression motion was meritorious, appellate counsel lacked 

a reasonable basis for failing to raise this issue on appeal. Id. at 18, 20. 

Appellant concludes that if appellate counsel had challenged the trial court’s 

order denying his motion to suppress the firearm on direct appeal, the 

outcome of his appeal would have been different. Id. at 19-20. 

Our Supreme Court has explained that to establish prejudice for a claim 

of ineffective assistance of appellate counsel claim, “the petitioner must show 

that there is a reasonable probability that the outcome of the direct appeal 

proceeding would have been different but for counsel’s deficient 

performance.” Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014). 

It is well settled that 

Article I, § 8 of the Pennsylvania Constitution and the Fourth 

Amendment to the United States Constitution both protect the 

people from unreasonable searches and seizures. Jurisprudence 
J-S25013-23

- 14 -

arising under both charters has led to the development of three 

categories of interactions between citizens and police. The first, 

a “mere encounter,” does not require any level of suspicion or 

carry any official compulsion to stop or respond. The second, an 

“investigative detention,” permits the temporary detention of an 

individual if supported by reasonable suspicion. The third is an 

arrest or custodial detention, which must be supported by 

probable cause.

Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014) (citations omitted). 

[T]o establish grounds for reasonable suspicion, the officer must 

articulate specific observations which, in conjunction with 

reasonable inferences derived from those observations, led him 

reasonably to conclude, in light of his experience, that criminal 

activity was afoot and that the person he stopped was involved in 

that activity. The question of whether reasonable suspicion 

existed at the time [the officer conducted the stop] must be 

answered by examining the totality of the circumstances to 

determine whether the officer who initiated the stop had a 

particularized and objective basis for suspecting the individual 

stopped. Therefore, the fundamental inquiry of a reviewing court 

must be an objective one, namely, whether the facts available to 

the officer at the moment of the [stop] warrant a man of 

reasonable caution in the belief that the action taken was 

appropriate.

Commonwealth v. Green, 168 A.3d 180, 184 (Pa. Super. 2017) (citation 

omitted). 

This Court has explained:

Where an investigative detention is based on an anonymous tip, 

we must determine whether under the totality of the 

circumstances the informant’s tip established the necessary 

reasonable suspicion that criminal activity was afoot. The veracity 

and reliability of anonymous tips are particularly difficult for the 

police to evaluate. Unlike trusted (or at least tested) informants 

or members of the public not concealing their identity, anonymous 

tipsters know they cannot be held to account for false allegations. 

See Florida v. J.L., 529 U.S. 266, 270 (2000). In addition, they 
J-S25013-23

- 15 -

often fail to reveal the basis for their alleged knowledge and are 

generally unavailable to answer follow-up questions from police.

The United States Supreme Court has made clear that an 

anonymous tip that a particular person in a particular location is 

carrying a firearm does not, by itself, establish reasonable 

suspicion for an investigative detention. J.L., 529 U.S. at 274.

Commonwealth v. Mackey, 177 A.3d 221, 230 (Pa. Super. 2017) (some 

citations omitted and formatting altered). 

However, “[a]n anonymous tip, corroborated by independent police 

investigation, may exhibit sufficient indicia of reliability to supply reasonable 

suspicion for an investigatory stop.” Commonwealth v. Brown, 996 A.2d 

473, 477 (Pa. 2010); see also Jackson, 698 A.2d at 572, 575 (concluding

that an anonymous tip of “a man in a green jacket carrying a gun[]” did not, 

by itself, exhibit sufficient indicia of reliability to establish reasonable suspicion 

to support an investigatory detention and explaining that “the police must 

investigate further by means not constituting a search and seizure. If, as a 

result, they acquire sufficient information to give rise to a reasonable suspicion 

that the individual is armed and dangerous, they may then initiate” an 

investigatory detention). 

Here, the PCRA court explained:

36. [Appellant’s] claim that appellate counsel was ineffective for 

failing to appeal the denial of [Appellant’s] motion to 

suppress fails, because the motion [to] suppress physical 

evidence was properly [denied], and thus the underlying 

legal issue is without arguable merit. See Findings of Fact 

and Conclusions of Law, NT 7/24/18, 47-50.

37. Since the motion to suppress was properly denied, 

[Appellant] suffered no prejudice.
J-S25013-23

- 16 -

PCRA Ct. Op. & Order, 8/8/22, at 7 (some formatting altered). 

The suppression court made the following findings of fact and 

conclusions of law when denying Appellant’s motion to suppress:

Police Officer Ibbotson . . . testified that on the date, time, and 

location in question, at approximately 6:30 p.m., he was at the 

time 3 1/2 years into the police force when he received a radio 

call for person with a gun at 1917 West Venango Street who was 

described as a black male with a blue shirt banging on the door. . 

. . The officer testified he arrived at the location within 5 minutes 

and also he was familiar with that area as a place of high incidence 

of arrests within a few block radius for guns and other illegal 

activity. He indicated that when he and his partner[, Officer 

Kology,] arrived there, he saw that Police Officer Robinson was

already on location. . . . As [O]fficer Ibbotson, along with his 

partner, are walking down the sidewalk, they are walking toward 

the burgundy Nissan Maxima that this defendant is sitting in, 

facing them. He observes this defendant through the windshield 

leaning back in his seat as if to avoid detection. He is wearing a 

blue shirt and also during their approach, they observe a spent 

shell casing on the sidewalk. They also observe shortly thereafter 

spent shell casings inside the vehicle. At this point Officer Kology 

orders the defendant out of the car and tries to open the door, to 

which the defendant responds by saying “Get the fuck out of 

here,” and was able to shut the door back. A struggle ensues that 

then involves four police officers, . . . and also involves the 

sighting of a prominent outline of a gun on the jeans of the 

defendant, which Officer Ibbotson immediately recognizes to be 

the outline of a gun and he then felt with his hand and during the 

struggle he pressed down on it as they continued to try to 

apprehend the defendant. Eventually, the defendant was 

apprehended and [a firearm, spent shell casings, and live 

ammunition] was recovered. . . .

This court does find credible the testimony of Police Officer 

Ibbotson. This court finds that at the time that Police Officer 

Kology ordered the defendant out and tried to open the door, 

there was, at the very least, reasonable suspicion, and I think, 

more than likely, outright probable cause to search the vehicle. 

Assuming that it was only reasonable suspicion at this point, once 

the defendant resisted it would blossom into probable cause. 

Probable cause was then further enhanced by the struggle, 
J-S25013-23

- 17 -

enhanced further still by the sighting of the outline of the firearm, 

then enhanced further still by Officer Ibbotson’s feeling of the 

firearm as he tried to hold it during the struggle. In sum, the 

totality of the circumstances, which include, but are not limited to, 

the radio call, the defendant’s description, the location, the facts 

he was there within 5 minutes, that he was leaning back in the 

seat eluding detection, and looking up the steps where Officer 

Robinson was on the same property that was named in the radio 

call, and the presence of shell casings not only on the sidewalk 

right outside the car but inside the car, altogether provide ample 

probable cause for the search and the arrest of the defendant. 

Therefore, his constitutional rights have not been violated, and 

the motion to suppress is denied.

N.T. Suppression Hr’g, 7/24/18, at 47-50 (some formatting altered). 

Based on our review of the record, we agree with the PCRA court that 

Appellant has failed to establish the arguable merit and prejudice prongs for 

his ineffectiveness claim against appellate counsel. Contrary to Appellant’s 

assertions, the police did not rely solely on an anonymous tip to establish 

reasonable suspicion to detain Appellant. As the trial court explained, the 

police officers saw spent shell casings in and around the car in which Appellant 

was seated. See id. at 47-48. The shell casings were sufficient independent 

indicia that the anonymous tip of a man in a blue shirt with a gun was reliable. 

See Brown, 996 A.2d at 477; Jackson, 698 A.2d at 575. Based on the 

totality of the circumstances, the police had reasonable suspicion when they 

opened the car door to believe that Appellant possessed and had at some 

point discharged a firearm. See Green, 168 A.3d at 184. For these reasons, 

Appellant’s suppression issue lacks arguable merit and appellate counsel 

cannot be ineffective for failing to pursue a meritless claim on appeal. See 

Davis, 262 A.3d at 596. Further, Appellant has failed to establish that there 
J-S25013-23

- 18 -

was a reasonable probability that if appellate counsel had raised this claim, 

the outcome of his direct appeal would have been different. See Blakeney, 

108 A.3d at 750. Appellant is not entitled to relief on this issue. 

Conclusion

Appellant’s fourth issue is cumulative of the other issues he has raised 

on appeal and are meritless, therefore no relief is due. For these reasons,

Appellant is not entitled to relief on his claims, and we affirm the PCRA court’s 

order. 

Order affirmed. Jurisdiction relinquished. 

Date: October 11, 2023