J

- S38014

- 17

___________________________ *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 : : : : : : : : : 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 senten ced 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

____________________________________________ 1 42 Pa.C.S.A. §§ 9541

- 9546.J

- S38014

- 17

- 2

-

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/Finley 2 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 liti gate a motion to suppress the physical evidence of this case; and PCRA counsel was ineffective for failing to raise a claim of trial

____________________________________________ 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 entr y). Hence, no appellate jurisdictional defects impede our review.J

- S38014

- 17

- 3

-

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? (Ap pellant’s Brief at 3). Appellant concedes the police had reasonable suspicion to stop Appellant and perform a Terry 4 frisk to search for weapons. Appellant, however, argues police lacked probable cause to search Appellant after the police confirmed Appe llant 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 p olice 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

____________________________________________ 4 Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).J

- S38014

- 17

- 4

-

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 tria l, 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

o f 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 r ecord 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,J

- S38014

- 17

- 5

-

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 tr ial, 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 t o 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), appe al 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 Decemb er 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 Turne r/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,J

- S38014

- 17

- 6

-

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 f iling 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. ( Se e 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 occur red 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, po lice 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 excl usion, 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 App ellant, as assailant, as well as cell phone recovered fromJ

- S38014

- 17

- 7

-

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 identifi ed 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 identificati on 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). According ly, we affirm. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

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