J-S38014-17

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*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

EDDIE EVANS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1763 EDA 2016

Appeal from the PCRA Order March 21, 2016

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0014962-2010

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 18, 2017

Appellant, Eddie Evans, appeals from the order entered in the 

Philadelphia County Court of Common Pleas, dismissing his first petition 

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

In its opinion, the PCRA court fully and correctly set forth the relevant 

facts of this case. Therefore, we have no reason to restate them. 

Procedurally, a jury convicted Appellant of robbery on October 13, 2011. 

The court sentenced Appellant on February 2, 2012, to a term of ten (10) to 

twenty (20) years’ imprisonment. This Court affirmed the judgment of 

sentence on April 11, 2013, and our Supreme Court denied allowance of 

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1 42 Pa.C.S.A. §§ 9541-9546. 
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appeal on September 25, 2013. See Commonwealth v. Evans, 75 A.3d 

550 (Pa.Super. 2013), appeal denied, 621 Pa. 189, 76 A.3d 535 (2013). 

Appellant did not seek further review, and his judgment of sentence became 

final on December 24, 2013. 

Appellant timely filed a pro se PCRA petition on December 22, 2014. 

The PCRA court appointed PCRA counsel, who subsequently filed a motion to 

withdraw and Turner/Finley2 no-merit letter on November 27, 2015. On 

February 1, 2016, the PCRA court issued notice of its intent to dismiss 

Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907. Appellant filed a 

premature notice of appeal on March 2, 2016.3 The PCRA court denied relief 

and allowed counsel to withdraw on March 21, 2016. On September 13, 

2016, the PCRA court ordered Appellant to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b). Appellant timely filed a 

counseled Rule 1925(b) statement on October 4, 2016. In his Rule 1925(b) 

statement Appellant, for the first time, claimed: trial counsel was ineffective 

for failing to file and litigate a motion to suppress the physical evidence of 

this case; and PCRA counsel was ineffective for failing to raise a claim of trial 

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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 

3 Appellant’s notice of appeal relates forward to March 21, 2016, the date 

the PCRA court denied PCRA relief. See Pa.R.A.P. 905(a)(5) (stating notice 

of appeal filed after court’s determination but before entry of appealable 

order shall be treated as filed after such entry and on date of entry). Hence, 

no appellate jurisdictional defects impede our review. 
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counsel’s ineffectiveness for not filing the motion to suppress. Appellant also 

claimed trial counsel was ineffective for not filing a motion to suppress the 

complainant’s out of court identification of Appellant. 

Appellant presents one issue in his brief:

WHETHER TRIAL COUNSEL WAS INEFFECTIVE IN FAILING 

TO FILE AND LITIGATE A MOTION TO SUPPRESS THE 

PHYSICAL EVIDENCE?

(Appellant’s Brief at 3). 

Appellant concedes the police had reasonable suspicion to stop 

Appellant and perform a Terry4frisk to search for weapons. Appellant, 

however, argues police lacked probable cause to search Appellant after the 

police confirmed Appellant was unarmed. Appellant asserts the police went 

beyond the scope of a Terry frisk when they removed cell phones from 

Appellant’s pocket. Appellant maintains even if police could have 

immediately determined that what they felt was a cell phone, the police 

could not just from the feel decide the cell phone was stolen and thus 

contraband. Appellant argues the plain feel doctrine does not apply to the 

facts of this case and, as a result, the police unconstitutionally seized the cell 

phone from Appellant’s person without the requisite probable cause. 

Appellant also claims he was not in possession of the cell phone found on the 

ground three feet from him or the gun recovered three to four houses away 

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4 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). 
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from Appellant; and he had no connection to those items. Appellant submits 

trial counsel was ineffective for failing to file and litigate a motion to 

suppress all of the physical evidence recovered as a result of the stop. 

Appellant avers trial counsel had no reasonable basis for failing to file and 

litigate a motion to suppress. Appellant insists he was prejudiced by trial 

counsel’s failure because without the evidence obtained, nothing tied 

Appellant to the crime. Appellant also asserts the complainant failed to 

identify Appellant as the assailant at trial, so there is a reasonable possibility 

that the outcome at trial would have been different as well. 

Appellant additionally argues PCRA counsel was ineffective for failing 

to raise this claim of trial counsel’s ineffectiveness regarding the suppression 

of evidence. Appellant concludes we should reverse the dismissal of his 

PCRA petition and remand for a new trial. We disagree. 

Our standard of review of a grant or denial of a PCRA petition is limited 

to examining whether the evidence of record supports the court’s 

determination and whether its decision is free of legal error. 

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the 

findings of the PCRA court if the record contains any support for those 

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal 

denied, 593 Pa. 754, 932 A.2d 74 (2007). We exercise de novo review over 

the PCRA court’s legal conclusions. Commonwealth v. Spotz, 610 Pa. 17, 
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44, 18 A.3d 244, 259 (2011). 

A PCRA petitioner must plead and prove his allegation of error has not 

been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). “[A]n issue 

is waived if the petitioner could have raised it but failed to do so before trial, 

at trial, during unitary review, on appeal or in a prior state post-conviction 

proceeding.” 42 Pa.C.S.A. § 9544(b). A petitioner must preserve any 

challenge to PCRA counsel’s stewardship in a response to counsel’s no-merit 

letter, if counsel moves to withdraw, or during the 20-day response period 

following the court’s Rule 907 notice of intent to dismiss. Commonwealth 

v. Pitts, 603 Pa. 1, 9 n.4, 981 A.2d 875, 880 n.4 (2009). See also 

Commonwealth v. Ousley, 21 A.3d 1238, 1245 (Pa.Super. 2011), appeal 

denied, 612 Pa. 698, 30 A.3d 487 (2011) (stating Pitts prohibits appellate 

review of any ineffectiveness of counsel claim, if issue is raised for first time 

in PCRA appeal). 

In the instant case, Appellant timely filed a pro se PCRA petition on 

December 22, 2014. The PCRA court appointed counsel, who subsequently 

filed a motion to withdraw and Turner/Finley no-merit letter. On February 

1, 2016, the PCRA court issued Rule 907 notice. Appellant did not respond 

to counsel’s motion to withdraw and Turner/Finley no-merit letter or to the 

court’s Rule 907 notice. Instead, Appellant filed a premature notice of 

appeal on March 2, 2016. The PCRA court denied relief and allowed counsel 

to withdraw on March 21, 2016. In his Rule 1925(b) statement, Appellant,
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for the first time, claimed: trial counsel was ineffective for failing to file and 

litigate a motion to suppress the physical evidence of this case; and PCRA 

counsel was ineffective for failing to raise a claim of trial counsel’s 

ineffectiveness for not filing the motion to suppress. Therefore, Appellant’s 

claims are waived. See Pitts, supra; Ousley, supra. 

Moreover, even if Appellant had properly preserved his issue for 

appeal, it would merit no relief, as demonstrated in the PCRA court opinion. 

(See PCRA Court Opinion, filed October 21, 2016, at 5-20) (finding: police 

possessed reasonable suspicion to stop and frisk Appellant; radio call 

reported armed robbery late at night and described assailant as black male 

wearing burgundy hoodie; robbery occurred in high crime area; police 

responded to radio call and observed Appellant, who was wearing burgundy 

hoodie and was only individual in vicinity of robbery; radio call noted 

assailant removed two cell phones from complainant; while frisking 

Appellant, police felt cell phone in his waistband and recovered it; police 

reasonably believed cell phone in Appellant’s waistband was contraband and 

were justified in recovering it from Appellant; even if phone recovered from 

Appellant’s waistband was subject to exclusion, remaining evidence would 

have sustained Appellant’s conviction; when police encountered Appellant 

and pursued him, police observed Appellant drop object; item Appellant 

dropped and police recovered was cell phone; complainant promptly 

identified Appellant, as assailant, as well as cell phone recovered from 
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Appellant’s person and cell phone Appellant had discarded; complainant also 

identified handgun Appellant had used during robbery, which police also 

recovered nearby; complainant positively identified Appellant as robber at 

scene; even though complainant could not identify Appellant as assailant at 

time of trial, complainant acknowledged he had previously identified 

Appellant in signed statement to police; complainant’s prompt one-on-one 

identification of Appellant at scene as assailant was unequivocal and 

untainted by surrounding circumstances; complainant’s inability to recognize 

and identify Appellant at trial did not require exclusion of complainant’s prior 

identification of Appellant). Accordingly, we affirm.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/18/2017
Circulated 06/20/2017 01:26 PM