J-A14023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JERMAINE K. WEEKS

Appellant No. 1804 MDA 2014

Appeal from the PCRA Order September 26, 2014

In the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0001408-2009

BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.: FILED MAY 18, 2015

Appellant Jermaine K. Weeks appeals from the order of the Lycoming 

County Court of Common Pleas dismissing his petition filed pursuant to the 

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541, et seq. We affirm.

On August 16, 2009, the Williamsport Bureau of Police submitted an 

application for a warrant to search Appellant’s residence. The affidavit of 

probable cause submitted in support thereof stated:

On Sunday August 16th, 2009 at approximately 0219 

hours, units from the Williamsport Bureau of Police 

responded to the 700 block of West Edwin Street for report 

of four shots fired. Shortly after dispatch LCCC advised 

that there were more shots fired in the same area. 

Police arrived on [the] scene [and] discovered that there 

were six shell casings in the street in the 700 block of 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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West Edwin Street and two more discovered just around 

the corner in the 300 block of Mifflin Place. Contact was 

made with one of the reporting persons, a Shakeema 

Shuler of 753 West Edwin Street. She stated that she and 

[Appellant] had been arguing at her residence. She stated 

that as [Appellant] was leaving [] he pulled up his shirt 

and grabbed a pistol that was in his waistband. 

[Appellant] pulled the gun out of the waistband a little and 

then pushed it back in his waistband. 

Shuler stated that she closed her door and about three 

seconds later she heard three or four shots just outside 

her door and observed flashes through her windows. A few 

moments later she heard three or four more shots and saw 

more flashes, this time coming from the west of her front 

door. Shuler stated that she could see the flashes coming 

through her son[’]s bedroom window to the west, facing 

Mifflin Place.

Another witness stated that he was in the area of the 700 

block of West Fourth Street when he heard four shots to 

his north, near the 700 block of West Edwin Street. A few 

moments later he observe[d] a black male matching 

[Appellant’s] description walk from Mifflin Place and get 

into a burgundy sedan and leave the area. This witness 

stated that he saw no other vehicular or pedestrian traffic 

in the area.

A total of eight spent shell casings were discovered in the 

700 block of West Edwin Street and the 300 block of Mifflin 

Place.

A check of [Appellant’s] criminal history shows that he was 

found guilty of Title 18 Section 3701 — Robbery on 

09/22/1997, thereby making him a Person Not To Possess 

a Firearm as enumerated in 6105 of Title 18.

I ask that a search warrant for [Appellant’s] residence be

issued so that any fruits of said crime be recovered as 

evidence. Due to the fact of the weapon being involved 

and to the fact of the suspect[’]s apparent state of mind, 

as evidenced by the total number of shots being fired, [I] 

ask that a [nighttime] search warrant be issued for the 

suspect[’]s residence. 
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Affidavit of Probable Cause, dated 8/16/2009. Based on this affidavit of 

probable cause, Magisterial District Judge Carn granted the search warrant 

application on August 16, 2009 at 5:50 a.m.1 Opinion, 7/28/2014, at 2. 

Police executed the search warrant at 5:59 a.m., and found a rifle in 

Appellant’s residence. Id. at 2.

The trial court set forth the following procedural history:

[Appellant] was charged with two counts of Possession of a 

Firearm by a Prohibited Person.1 Following the preliminary 

hearing, one count was dismissed, and the other count 

was held for trial.

1

 18 Pa.C.S. § 6105(a)(1).

On November 17, 2009, trial counsel filed a motion to 

suppress the rifle found in [Appellant’s] apartment. During 

the hearing on the motion, trial counsel argued that police 

entered [Appellant’s] residence before the warrant was 

obtained. Trial counsel also argued that police had entered 

the residence during nighttime even though the warrant 

was to be served only between the hours of 6 A.M. and 10 

P.M. Following the hearing, the Honorable Marc Lovecchio 

found that MDJ Carn inadvertently checked the wrong box 

on the search warrant and intended to indicate that the 

warrant could be served any time day or night. In addition, 

Judge Lovecchio found that the search warrant was issued 

at 5:50 A.M. and execution of the warrant began at 5:59 

A.M. Judge Lovecchio determined that [Appellant] was not 

entitled to the suppression of the rifle because a technical 

or procedural violation does not justify exclusion of the 

evidence. See Order, February 2, 2010.

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1 The magisterial judge checked the box indicating the “[w]arrant shall be 

served as soon as practicable and shall be served only between the hours of 

6AM and 10PM but in no event later than 5:50 A.M. . . . August 18, 2009.” 

Application for Search Warrant and Authorization.
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On October 19, 2010, a jury found [Appellant] guilty of 

Possession of a Firearm by a Prohibited Person. On March 

8, 2011, this [c]ourt sentenced [Appellant] to a prison 

term of five to ten years. [Appellant] appealed the 

judgment of sentence. The Superior Court denied the 

appeal on May 25, 2012. On January 14, 2013, [Appellant] 

filed a PCRA petition, in which he requested reinstatement 

of his right to petition for allowance of appeal to the 

Supreme Court of Pennsylvania. On April 16, 2013, this 

[c]ourt reinstated [Appellant’s] right to petition for 

allowance of Appeal to the Supreme Court. On October 29, 

2013, the Supreme Court of Pennsylvania denied 

[Appellant’s] petition for allowance of appeal.

Opinion, 7/30/2014, at 1-3. 

On March 5, 2014, Appellant filed a timely pro se PCRA petition. The 

PCRA court appointed counsel, who filed an amended PCRA petition. On July 

28, 2014, the PCRA court issued its notice of intent to dismiss the PCRA 

petition without a hearing pursuant to Pennsylvania Rule of Criminal 

Procedure 907. Appellant filed pro se objections to this notice. On 

September 26, 2014, the PCRA court dismissed the petition.

Appellant raises the following issue on appeal:

Whether the trial court erred in denying Appellant’s PCRA 

petition where Appellant’s trial counsel was ineffective 

because she failed to move for suppression of the firearm 

located in Appellant’s residence on grounds that police did 

not have probable cause to search Appellant’s home?

Appellant’s Brief at 7. Appellant argues his trial counsel was ineffective for 

failing to file a suppression motion. Because claims of ineffective assistance 

of counsel are cognizable under the PCRA, we will address the merits of his 

claim. See 42 Pa.C.S. § 9543(a)(2)(ii).
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Our standard of review from the denial of post-conviction relief “is 

limited to examining whether the court’s determination is supported by the 

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

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

Morales, 701 A.2d 516, 520 (Pa.1997)).

For ineffective assistance of counsel claims, the petitioner must 

establish: “(1) that the underlying claim has merit; (2) counsel had no 

reasonable strategic basis for his or her action or inaction; and (3) but for 

the errors or omissions of counsel, there is a reasonable probability that the 

outcome of the proceedings would have been different.” Ousley, 21 A.3d at 

1244 (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 

(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of 

demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove 

any one of the three [ineffectiveness] prongs results in the failure of 

petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).

Appellant alleges trial counsel was ineffective for failing to file a motion 

to suppress arguing the police lacked probable cause to search for a firearm 

in his residence because the affidavit of probable cause failed to establish a 

nexus between the crime and his residence. Appellant’s Brief at 14. This 

claim is meritless. 

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

Amendment of the United States Constitution require that a search warrant 

be supported by probable cause. Commonwealth v. Jones, 988 A.2d 
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649, 655 (Pa.2010). “Probable cause exists where the facts and 

circumstances within the affiant’s knowledge and of which he has reasonably 

trustworthy information are sufficient in themselves to warrant a man of 

reasonable caution in the belief that a search should be conducted.” Id.

(quoting Commonwealth v. Thomas, 292 A.2d 352, 357 (Pa.1972)). Both 

the Supreme Court of the United States and our Supreme Court apply a 

totality of the circumstances test to determine whether probable cause 

exists. Id. Pursuant to this test:

[T]he task of an issuing authority is simply to make a 

practical, common-sense decision whether, given all of the 

circumstances set forth in the affidavit before him, 

including the veracity and basis of knowledge of persons 

supplying hearsay information, there is a fair probability 

that contraband or evidence of a crime will be found in a 

particular place. . . . 

Id. (quoting Commonwealth v. Torres, 764 A.2d 532, 537 (Pa.2001)). 

The affidavit in support of probable cause must set forth a substantial nexus 

between the crime and the place to be searched. Commonwealth v. Way, 

492 A.2d 1151, 1154 (Pa.Super.1985).

A court reviewing an issuing authority’s probable cause determination 

must:

[E]nsure that the magistrate had a substantial basis for

concluding that probable cause existed. In so doing, the 

reviewing court must accord deference to the issuing 

authority’s probable cause determination, and must view 

the information offered to establish probable cause in a 

common-sense, non-technical manner.
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Jones, 988 A.2d at 655 (quoting Torres, 764 A.2d at 537-38). This Court 

does “not . . . conduct a de novo review of the issuing authority’s probable 

cause determination, but . . . simply . . . determine[s] whether or not there 

is substantial evidence in the record supporting the decision to issue the 

warrant.” Id. (quoting Torres, 764 A.2d at 540).

Appellant relies on Commonwealth v. Kline2and Way, to support 

his argument the affidavit lacked a substantial nexus between the alleged 

crime and the place to be searched, his residence. Kline and Way both 

addressed a suspected drug-dealer and found insufficient evidence of a 

connection between the illegal activity, selling drugs outside of the home, 

and the home itself to provide probable cause to support a search warrant 

for drug items in the defendant’s residence. Kline, 335 A.2d at 364 

(insufficient evidence to establish probable cause that fruits of crime would 

be found at residence where informants did not say where L.S.D. was 

located, affidavit merely had informants’ conclusion it was in defendant’s 

apartment, affidavit did not “set forth how information leading to such a 

conclusion was obtained,” “[t]here is no indication of where the transaction 

took place, how long it took, how long [defendant] was gone, or what led 

the girls to conclude that he had gone to his apartment,” and information did 

not corroborate conclusion that defendant “kept drugs in his apartment, 

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2 Commonwealth v. Kline, 335 A.2d 361 (Pa.Super.1975).
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even though it does tend to establish that [defendant] was a drug dealer”); 

Way, 492 A.2d at 1154 (no probable cause because affidavit did not contain 

sufficient facts to believe drugs would be found on premises to be searched 

where: “informant arranged a drug transaction by phone[; t]he alleged 

transaction occurred in a blue van along a country road[; a]fter the alleged 

transaction, police followed the blue van to a driveway of a property at the 

corner of Douglas [Drive] and Glendale [Road; t]he informant identified 

appellant as the driver of the blue van[; and a] police source told the affiant 

that appellant lived at the intersection of Douglas [Drive] and Glendale 

[Road]”); see also Commonwealth v. Wallace, 42 A.3d 1040 (Pa.2012) 

(no probable cause for anticipatory search warrant where confidential 

informant made no allegation drugs were being sold by “Greg” at Appellant’s 

home, informant provided no factual details regarding location and time of 

any of “Greg’s” prior cocaine sales, or his basis of knowledge for this 

information, averments did not establish “Greg” or anyone else was using his 

home for selling or storing drugs, police had not observed any criminal 

activity and were not informed of any prior criminal activity involving either 

appellant or location, and no facts in affidavit suggested confidential 

informant had purchased drugs from “Greg,” or witnessed “Greg” selling 

drugs at “any location, let alone at Appellant’s home”).
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In contrast, in Commonwealth v. Hutchinson,

3

this Court found the 

affidavit was supported by probable cause and sufficiently averred the fruits 

of the crime, robbery, would be found at the defendant’s home where the 

affidavit stated that the defendant had been positively identified by two of 

the victims and “the items seized, a shirt and a gun, were each of a type 

reasonably likely to be found in the perpetrator’s home, especially given the 

short period of time between the commission of the crimes and the 

application for the search warrant.” 434 A.2d at 743.

The PCRA court found Appellant’s claim lacked merit and counsel was 

not ineffective for failing to raise it. Opinion, 7/28/2014, at 8. The affidavit 

of probable cause establishes Ms. Shuler saw Appellant with a gun and 

immediately thereafter heard gunshots. There were additional eyewitnesses 

who saw a man fitting Appellant’s description enter a burgundy sedan and 

leave the street. No other pedestrians or vehicles were in the area. Similar 

to Hutchinson, the item to be seized, a gun, was the type reasonably likely 

to be found in the perpetrator’s home, especially as only four hours passed 

between the commission of the crime and the execution of the search.

The PCRA court’s conclusions are supported by the record and free of 

legal error. See Ousley, 21 A.3d at 1244.4

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3 434 A.2d 740 (Pa.Super.1981).

4

In his pro se response to the PCRA court’s notice of intent to dismiss the 

PCRA petition, Appellant claimed the affidavit of probable cause contained 

(Footnote Continued Next Page)
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/18/2015

(Footnote Continued) _______________________

false statements because Ms. Shuler gave false information to the police 

officers. Petitioner’s Supplemental Objection to Court’s Intent To Dismiss, 

filed 8/14/2014, at 4. He attached an affidavit signed by Ms. Shuler stating 

Appellant did not have a firearm on the night in question. Id., at Affidavit. 

This claim is waived because it is not contained in the statement of 

questions presented or argument sections of Appellant’s appellate brief. 

Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the 

statement of questions involved or is fairly suggested thereby.”); 

Commonwealth v. Veon, 109 A.3d 754, 774 (Pa.Super.2015) (claim 

waived where Appellant did not develop argument in support of issue). 

Further, the PCRA court correctly found the warrant was supported by 

probable cause even without Ms. Shuler’s statement that Appellant had a 

gun. Opinion, 9/26/2014, at 2.