Com. v. Suarez, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

REYNALDO ADOLFO SUAREZ

Appellant No. 1956 MDA 2014

Appeal from the PCRA Order April 28, 2015 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0004549-2009

BEFORE: PANELLA, J., OLSON, J., and OTT, J. MEMORANDUM BY OTT, J.: FILED JUNE 30, 2015

Reynaldo Adolfo Suarez appeals, pro se, from the order entered on April 28, 2015, in the Court of Common Pleas of Berks County, denying him relief on his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.1 In this timely appeal, Suarez claims trial counsel was ineffective for: (1) failing to challenge the validity of the search warrant, (2) failing to seek the identity of the confidential informant, and (3) failing to ____________________________________________

1 The hearing that produced the appealable order was held on October 9, 2014 and this appeal was originally taken from that date. Due to inadvertent oversight, no order was actually entered on that date. That has been corrected with the entry of the April 28, 2015 order. Although the original appeal was technically premature, the entry of the order rendered the appeal timely and proper. We have amended the caption accordingly.

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call certain defense witnesses.2 After a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm.

The facts and procedural history of this matter are well known to the parties and so we have no need to reiterate them herein.3 We refer to and rely on the factual recitation found in our Court’s memorandum decision denying Suarez relief in his direct appeal. See Commonwealth v. Suarez, 40 A.3d 182 (Pa. Super. 2011)(unpublished memorandum), at 1-6. Relevant to this matter, following denial of relief on his direct appeal, Suarez filed a timely, counseled PCRA petition. At some point, counsel withdrew and Suarez went forward pro se. The PCRA court denied Suarez relief and he appealed to our Court. A panel of our Court vacated the order denying Suarez relief and remanded the matter for a Grazier4 hearing. As noted above, the hearing was held on October 9, 2014, at which time the PCRA court found Suarez was knowingly, intelligently and voluntarily choosing to represent himself. The matter was returned to our Court, without first re-

entering an order denying Suarez’s PCRA petition, leaving our Court with ____________________________________________

2 We have reworded Suarez’s claims for clarity. 3 On April 22, 2010, a jury found Suarez guilty two counts of possession with intent to deliver a controlled substance (cocaine and marijuana), two counts of possession of a controlled substance (cocaine and marijuana), possession of drug paraphernalia, receiving stolen property, and possession of a firearm with altered manufacturer’s number. 35 P.S. §§ 780-113(a)(30), (16), and (32); and 18 Pa.C.S. §§ 3925, 6110.2 respectively. 4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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nothing to review. That oversight was corrected and the matter is ready for resolution.

Initially we note our scope and standard of review.

In PCRA proceedings, an appellate court’s scope of review is limited by the PCRA’s parameters; since most PCRA appeals involve mixed questions of fact and law, the standard of review is whether the PCRA court’s findings are supported by the record and free of legal error.

Commonwealth v. Pitts, 981 A.2d 875, 978 (Pa. 2009).

Additionally, in order to prevail on a claim of ineffective assistance of counsel, a petitioner is required to prove by a preponderance of the evidence:

(1) that the claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and, (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999). All claims of ineffective assistance of counsel begin with the presumption that trial counsel was effective. See Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007).

First, Suarez contends the PCRA court erred in determining trial counsel was not ineffective for failing to file a motion challenging the search warrant. Suarez initially claims the PCRA court incorrectly determined counsel could not have been ineffective because Suarez had no standing to

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challenge the search warrant.5 The PCRA court did not hold Suarez lacked standing to challenge the search warrant. Indeed, the PCRA court properly acknowledged the fact that anyone charged with a possessory crime automatically has standing to challenge the search. See PCRA Court Opinion, 10/21/2013, at 4, citing Commonwealth v. Boulware, 876 A.2d 440 (Pa. Super. 2005).6 Rather, the PCRA court determined Suarez lacked the requisite privacy interest in the residence, having been a casual visitor at the time the search occurred. The PCRA court also determined the four-corners of the warrant provided sufficient probable cause to support the search warrant.7 Accordingly, we need only examine the PCRA court’s determination regarding the four-corners of the warrant.

We note the rules regarding a determination of the existence of

probable cause: ____________________________________________

5 Suarez labels his claim in terms of lack of standing, although substantively he also raises arguments addressing reasonable expectation of privacy and a four-corners challenge. 6 We are aware that our Supreme Court has since disapproved of Boulware on other grounds in Commonwealth v. Enimpah, 106 A.3d 695 (Pa. 2014). 7 For purposes of our discussion, we note that issues of standing or privacy interest are threshold issues that must be met to substantively challenge the warrant. Here, the PCRA court assumed that Suarez had established these issues. Accordingly, even if trial counsel should have filed a motion challenging the validity of the search warrant, Suarez would still be required to prove he would have prevailed on the motion. If Suarez cannot demonstrate he would have prevailed, he cannot demonstrate prejudice. Without prejudice, he is not entitled to relief.

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“In determining whether the warrant is supported by probable cause, the magistrate may not consider any evidence outside the four-corners of the affidavit.” Commonwealth v. Sharp, 453 Pa. Super. 349, 683 A.2d 1219, 1223 (1996) (citations omitted).

The legal principles applicable to a review of the sufficiency of probable cause affidavits are well settled. Before an issuing authority may issue a constitutionally valid search warrant, he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search. The standard for evaluating a search warrant is a ‘totality of the circumstances’ test as set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 527 (1983), and adopted in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). A magistrate is to make a ‘practical, common sense decision whether, given all 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.’ The information offered to establish probable cause must be viewed in a common sense, non- technical manner. Probable cause is based on a finding of the probability, not a prima facie showing of criminal activity, and deference is to be accorded a magistrate's finding of probable cause.

Commonwealth v. Dean, 693 A.2d 1360, 1365 (Pa. Super. 1997) (citations, quotations, and emphasis omitted).

Commonwealth v. Ryerson, 817 A.2d 510, 513-14 (Pa. Super. 2003).

The instant affidavit of probable cause related three separate instances of a confidential informant making controlled buys of narcotics from the residence in question. These buys all took place within one month of the execution of the warrant, the last buy occurring within a few days of the drug raid. We agree with the PCRA court that the search warrant provided sufficient indicia of criminal activity taking place at the target residence that

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a reasonable person would conclude there was probable cause that a search would reveal evidence of that activity. Therefore, even if Suarez’s trial counsel had filed a motion to suppress evidence challenging the validity of the search warrant, such a challenge would have failed. Accordingly, Suarez cannot demonstrate prejudice and he is not entitled to relief on this issue.

Suarez’s next claim is that trial counsel was ineffective for failing to file a motion to disclose the identity of the confidential informant. Suarez argues the PCRA court erred in determining he was not entitled to discover that information.

“Our standard of review of claims that a trial court erred in its disposition of a request for disclosure of an informant’s identity is confined to abuse of discretion.” Commonwealth v. Washington, 63 A.3d 797, 801 (Pa. Super. 2013).

Under Pennsylvania Rule of Criminal Procedure 573, a trial court has the discretion to require the Commonwealth to reveal the names and addresses of all eyewitnesses, including confidential informants, where a defendant makes a showing of material need and reasonableness:

(a) In all court cases, except as otherwise provided in Rule 230 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:

(i) the names and addresses of eyewitnesses....

Pa.R.Crim.P. 573(B)(2)(a)(i).

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The Commonwealth enjoys a qualified privilege to withhold the identity of a confidential source. Commonwealth v. Bing, [551 Pa. 659, 713 A.2d 56 (1998)]; Commonwealth v. Roebuck, 545 Pa. 471, 681 A.2d 1279, 1283 n.6 (1996). In order to overcome this qualified privilege and obtain disclosure of a confidential informant’s identity, a defendant must first establish, pursuant to Rule 573(B)(2)(a)(i), that the information sought is material to the preparation of the defense and that the request is reasonable. Roebuck, supra at 1283. Only after the defendant shows that the identity of the confidential informant is material to the defense is the trial court required to exercise its discretion to determine whether the information should be revealed by balancing relevant factors, which are initially weighted toward the Commonwealth. Bing, supra at 58; Commonwealth v. Herron, 475 Pa. 461, 380 A.2d 1228 (1977).

In striking the proper balance, the court must consider the following principles:

A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations[,] the trial court may require disclosure and, if the Government withholds the information, dismiss the action.

[N]o fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses,

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the possible significance of the informer's testimony, and other relevant factors.

Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284, 287 (1967) (quoting Rovario v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)).

Commonwealth v. Marsh, 606 Pa. 260-261, 997 A.2d 318, 321-322 (2010).

Commonwealth v. Watson, 69 A.3d 605, 607-08 (Pa. Super. 2013).

Here, Suarez has failed to show how his defense was impaired by the failure to identify the confidential informant (CI). Suarez complains that information gleaned from the CI, regarding the identify of those people inside the target house when the controlled buys took place, was never tested by cross-examination. However, Suarez was never accused of being one of the people who took part in any of the controlled buys. Suarez’s guilt was based upon his being found in the house, in the immediate vicinity of drugs, while his wife attempted to dispose of those drugs as he tried to flee the scene by climbing out a window. Suarez’s defense was based upon a claim that he was simply a visitor to the home, without any knowledge of the drug dealing that the Commonwealth alleged took place therein. Accordingly, the identity of those people in the house during the controlled buys had no effect upon his defense and the PCRA court did not abuse its discretion in denying Suarez relief on this issue.

In his final issue, Suarez claims trial counsel was ineffective for failing to call certain witnesses at trial. Specifically, Suarez claims his trial counsel

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should have called his mother, Mayra Cruz, and two others, Luis Ramos and Lisa Green.8 We rely upon the able analysis of the PCRA court for the resolution of this issue. See PCRA Court Opinion, 10/21/2013, at 7-9. The parties are directed to attach this portion of the PCRA court opinion in the event of further proceedings.

Having found no errors of law or abuse of discretion on the part of the PCRA court, we affirm the order denying Suarez relief on his PCRA petition.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/30/2015 ____________________________________________

8 In his Appellant’s brief, Suarez mistakenly refers to Jose Abreu, rather than Lisa Green as the missing witness. Abreu testified at trial. Our review of the certified record reveals that none of the missing witnesses were named in either Suarez’s pro se PCRA petition or in the counseled amended PCRA petition. Nonetheless, Cruz testified at the PCRA hearing. Ramos and Green were not identified as potential witnesses until Suarez mentioned their names in his PCRA testimony.

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