J-S52025- 14

*Former Justice specially assigned to the Superior Court

. NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. LAMAR METTS, Appellant No. 3011 EDA 2013

Appeal from the PCRA Order entered September 27 , 2013, in the Court of Common Pleas of Delaware County, Criminal Division, at No(s): CP

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- CR -0007220-2008
BEFORE: GANTMAN, P.J., ALLEN and FITZGERALD*, JJ. MEMORANDUM BY ALLEN, J.: FILED AUGUST 26, 2014 Lamar Metts (“Appellant”) appeals pro se from the order denying his petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. sections 9541-46. We affirm. On March 25, 2009, Appellant was found guilty of tw o firearm violations. On May 18, 2009, the trial court sentenced Appellant to an aggregate term of six to twelve years of imprisonment, as well as a consecutive probationary term. Although Appellant’s ri ght to file a direct appeal was reinstated nunc pro tunc , Appellant later discontinued his appeal. On March 18, 2011, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel, and on April 13, 2013, PCRA co unsel filed an amended petition. The Commonwealth filed a response, after which theJ-S52025- 14

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PCRA court issued Pa.R.A.P. 907 notice of its intent to dismiss Appellant’s amended PCRA petition without a hearing. On August 30, 2013, PCRA counsel filed a response. By order entered September 2 7, 2013, the PCRA court denied A ppellant’s amended petition. This timely appeal foll owed. 1 Both Appellant and the PCRA court have complied wit h Pa.R.A.P. 1925. Appellant raises the following issue:

I) WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO SUPPRESS ILLEGALLY OBTAINED EVIDENCE OF THE UNLAWFUL TERRY INVESTIGATIVE DETENTION AND ILLEGAL SEIZURE OF APPELLANT ABSENT PROBABLE CAUSE AND REASONABLE SUSPICION IN VIOLATION OF [APPELLANT’S] RIGHTS UNDER ARTICLE I SECTION 8 OF THE PENNSYLVANIA CONSTITUTION AND THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION. Appellant’s Brief at 7. This Court’s standard of review regarding an order di smissing a petition under the PCRA is whether the determinatio n of the PCRA court is supported by the evidence of record and is free of leg al error. Commonwealth v. Halley , 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr , 768 A.2d 1164,

____________________________________________ 1 On February 20, 2014, the PCRA court conducted a Grazier hearing and entered an order permitting PCRA counsel to withdraw and allowing Appellant to proceed pro se. See generally , Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998).J-S52025- 14

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1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a hearing on the petition if the PCRA court determines that a petitioner’s claim is patently frivolous and is without a trace of support in either the record or from other evidence. Commonwealth v. Jordan , 772 A.2d 1011, 1104 (Pa. Super. 2001). To be entitled to relief under the PCRA, the petiti oner must plead and prove by a preponderance of the evidence that the conv iction or sentence arose from one or more of the errors enumerated in sect ion 9543(a)(2) of the PCRA. One such error involves the ineffectiveness of counsel. To obtain relief under the PCRA premised on a claim t hat counsel was ineffective, a petitioner must establish by a preponder ance of the evidence that counsel's ineffectiveness so undermined the truth-det ermining process that no reliable adjudication of guilt or innocence cou ld have taken place. Commonwealth v. Johnson , 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s performance is presumed to be constitutionally ad equate, and counsel will only be deemed ineffective upon a sufficie nt showing by the petitioner.” Johnson , 966 A.2d at 532. This requires the petitioner to demonstrate that: (1) the underlying claim is of ar guable merit; (2) counsel had no reasonable strategic basis for his or her action o r inaction; and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice" requires the petitioner to show "that there is a reasonable probability that, but for counsel’s unprofess ional errors, theJ-S52025- 14

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result of the proceeding would have been different." Id. In assessing a claim of ineffectiveness, when it is clear that appellan t has failed to meet the prejudice prong, the court may dispose of the claim on that basis alone, without a determination of whether the first two pro ngs have been met. Commonwealth v. Travaglia , 661 A.2d 352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing to pursue a m eritless claim. Commonwealth v. Loner , 836 A.2d 125, 132 (Pa. Super. 2003) ( en banc ), appeal denied , 852 A.2d 311 (Pa. 2004). Appellant claims that trial counsel was ineffective for failing to file a suppression motion on Appellant’s behalf. According to A ppellant, the gun introduced against him at trial was obtained illegally , because Appellant “was subjected to an unlawful investigative detention and i llegal seizure [premised] on nothing more than an anonymous call givi ng a vague description and location, without any predictive inform ation about [Appellant’s] behavior or independent verification o f criminality by the police.” Appellant’s Brief at 10. “When, as in this case, an assertion of ineffective assistan ce of counsel is based upon the failure to pursue a suppression motion , proof of the merit of the underlying suppression claim is necessary to establis h the merit of the ineffective assistance of counsel claim.” Commonwealth v. Carelli , 546 A.2d 1185, 1189 (Pa. Super. 1988) (citations omitted) . The PCRA court found no merit to Appellant’s suppression claim, expla ining:J-S52025- 14

- 5 - The Superior Court should affirm the denial of the PCRA petition because there is no merit to the allegations o f ineffectiveness contained therein. The events in questio n do not constitute a Terry search or seizure. Furthermore, [Appellant] abandoned or relinquished the gun when h e saw the officers. The trial testimony indicates that the police officers received an anonymous telephone call that five men wi th guns were walking in the direction of Ming’s Deli in Chester, PA. As they entered the deli, [Appellant] t ook out a gun and dropped it to the ground. Another one of the men did likewise. The officers then secured the area, arrested [Appellant] and the others, and charged [Appellant] with various counts of unlawful possession of a firearm. PCRA Court Opinion, 4/14/14, at 5. Our review of the record supports the PCRA court’s conclusion that, since Appellant was not seized, a suppression motion would have been meritless. Thus, trial counsel cannot be deemed ineffecti ve for failing to file a suppression motion. Loner , supra . There is no support in the record for Appellant’s claim within his amended PCRA petition that the offi cers “block[ed] the exit path and rushed into the store with guns drawn.” See Trial Court Opinion, 4/14/14, at 5. Our review ind icates that neither the police officers nor Appellant testified to these facts. R ather, the record reveals that as soon as the police officers entered the sto re, they saw Appellant release a gun from his hand to the floor. N.T., 3/24/09, at 15. 2

____________________________________________ 2 Appellant also refers to the PCRA court opinion which stat es: “the police entered the deli with guns drawn”. PCRA Court Opinio n, 4/14/14, at 6. Once again, there is no record support for this conclusi on. (Footnote Continued Next Page)J-S52025- 14

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In sum, because a suppression motion would have been mer itless, Appellant’s tria l counsel was not ineffective. We therefore agree with the PCRA court that Appellant’s amended PCRA petition lack ed merit, and conclude that the PCRA court did not err in dismissing t he petition without a hearing. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/26/2014

(Footnote Continued) _______________________