Com. v. Blenman, K. ( 2015 )

J-S11041-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KEVIN O. BLENMAN, :
:
Appellant : No. 802 MDA 2014
Appeal from the PCRA Order entered on April 21, 2014
in the Court of Common Pleas of Lebanon County,
Criminal Division, No. CP-38-CR-0000358-2010
BEFORE: PANELLA, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 19, 2015
Kevin O. Blenman (“Blenman”) appeals from the Order denying his
first Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court thoroughly set forth the relevant factual and
procedural history underlying this appeal in its Opinion, which we
incorporate herein by reference. See PCRA Court Opinion, 6/1/14, at 3-7.1, 2
On appeal, Blenman presents the following issues for our review:
I. Whether trial counsel was ineffective for:
1
On direct appeal, this Court affirmed Blenman’s judgment of sentence.
See Commonwealth v. Blenman, 48 A.3d 479 (Pa. Super. 2012)
(unpublished memorandum). Blenman did not file a petition for allowance of
appeal in the Pennsylvania Supreme Court.
2
At trial, Blenman was represented by Nicholas Sidelnik, Esquire
(hereinafter referred to as “trial counsel”). Trial counsel also represented
Blenman in his direct appeal.
J-S11041-15
a. Failing to show the video [taken by the arresting
officer’s dashboard camera] at the pre-trial hearing … to
use the video to impeach the officer’s testimony[?]
b. Withholding discovery materials from [Blenman] in the
form of a video of what happened on the day of
[Blenman’s] arrest[?]
c. Failing to challenge the reliability of the dog handler and
the dog sniff that was conducted[?]
d. Failing to consult with [Blenman] regarding his appeal,
thereby creating a deficiency in [Blenman’s] appellate
brief[?]
e. Failing to properly investigate [a] witness, who
ultimately perjured herself during trial[?]
Brief for Appellant at 4 (issues renumbered for ease of disposition,
capitalization omitted).
The applicable standards of review regarding the denial of a PCRA
petition and ineffectiveness claims are as follows:
Our standard of review of a PCRA court’s denial of a
petition for post[-]conviction relief is well-settled: We must
examine whether the record supports the PCRA court’s
determination, and whether the PCRA court’s determination is
free of legal error. The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the
certified record.
***
It is well-established that counsel is presumed to have
provided effective representation unless the PCRA petitioner
pleads and proves all of the following: (1) the underlying legal
claim is of arguable merit; (2) counsel’s action or inaction lacked
any objectively reasonable basis designed to effectuate his
client’s interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error. The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
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J-S11041-15
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(citations omitted).
Blenman first argues that trial counsel was ineffective for failing to
show at the pretrial hearing the video of the stop and arrest taken by
Trooper Robert Claar’s (“Trooper Claar”) dashboard camera (hereinafter
referred to as “the video”), in order to impeach Trooper Claar’s credibility.
See Brief for Appellant at 14-16. According to Blenman, trial counsel should
have used the video because there were inconsistencies between it and
Trooper Claar’s pretrial hearing testimony. Id. at 15-16.
In its Pa.R.A.P. 1925(a) Opinion, the PCRA court cogently addressed
Blenman’s ineffectiveness claim, and found that trial counsel had good
reason for not showing the video at the pretrial hearing, because to do so
would have been a “fruitless venture.” See PCRA Court Opinion, 6/1/14, at
10-12. The PCRA court’s determination and rationale are supported by the
record, and we therefore affirm on this basis concerning Blenman’s first
ineffectiveness challenge. See id.
Next, Blenman contends that trial counsel was ineffective for ignoring
Blenman’s repeated requests to view the video to “assist in his own
defense[.]” Brief for Appellant at 8. According to Blenman, he had
expressed to trial counsel before the pretrial hearing that he wanted to view
the video in order to highlight inconsistencies between it and Trooper Claar’s
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J-S11041-15
account of the stop. Id. at 8, 9. Blenman asserts that trial counsel did not
inform him of the existence of the video until the day before the pretrial
hearing, and Blenman did not get to see the video until several months later,
after the trial court had denied his Motion to Suppress. Id. at 9, 12.
In its Opinion, the PCRA court addressed and rejected Blenman’s
claim, determining that trial counsel was not ineffective because, inter alia,
Blenman’s viewing of the video prior to the pretrial hearing would not have
had any impact on its outcome, or on the outcome of the trial. See PCRA
Court Opinion, 6/1/14, at 12-14. We agree with the PCRA court’s
determination and rationale, which is supported by the record, and affirm on
this basis with regard to this issue. See id.
In his third issue, Blenman argues that trial counsel was ineffective for
failing to challenge at trial the reliability of the K-9 dog, Draco, and the dog
sniff of his vehicle. See Brief for Appellant at 16-18. Blenman contends
that the dog sniff was unreliable because Draco failed to alert to a small
amount of marijuana that was contained in the vehicle’s glove compartment.
Id. at 17. Additionally, Blenman asserts that trial counsel was ineffective for
failing to challenge the qualifications of Draco and his handler, Trooper
Claar. Id. at 18.
The PCRA court addressed this claim in its Opinion, and determined
that trial counsel properly concluded that a challenge to Draco’s reliability
would have been a “meritless issue” that would have had no impact upon
the jury’s verdict. See PCRA Court Opinion, 6/1/14, at 14-16. We agree
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J-S11041-15
with the PCRA court’s determination and rationale, which is supported by the
record, and we therefore affirm on this basis with regard to this issue. See
id.
Next, Blenman asserts that “[t]rial [c]ounsel was ineffective for failing
to consult with [Blenman] regarding his [direct] appeal, thereby creating a
deficiency in [Blenman’s] appellate brief.” Brief for Appellant at 18.
Blenman maintains that he had specifically requested that trial counsel raise
on appeal challenges to (1) the inconsistencies between Trooper Claar’s
testimony and the video; and (2) the reliability of Draco, which issues trial
counsel also failed to raise in his pretrial Motion. Id. at 19-21. Additionally,
Blenman argues that trial counsel was ineffective for failing to ensure that
the search warrant was included in the certified record. Id. at 19.
Specifically, Blenman points out that, in this Court’s Memorandum affirming
the judgment of sentence, the majority deemed his challenge to the search
warrant waived because this document was not contained in the record. Id.
The PCRA court thoroughly addressed Blenman’s ineffectiveness
challenge in its Opinion, and properly rejected it. See PCRA Court Opinion,
6/1/14, at 16-20. We affirm with regard to this issue based on the PCRA
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court’s sound rationale. See id.3
Finally, Blenman argues that trial counsel was ineffective for failing to
investigate Dominique Reid (“Reid”). Brief for Appellant at 22. Reid testified
against Blenman at trial, but subsequently recanted her testimony at the
PCRA hearing, asserting that the police and Assistant District Attorney had
coerced her to testify falsely against Blenman by threatening to arrest her.
Id.; see also id. at 24-29 (setting forth Reid’s testimony at the PCRA
hearing). According to Blenman, he had expressed to trial counsel his
concern that the police had coerced Reid to write a false statement against
him and perjure herself at trial, but trial counsel never investigated
Blenman’s concerns. Id. at 23; see also id. at 29 (arguing that “[h]ad
[t]rial [c]ounsel zealously investigated [] Reid, he would have discovered
that she had a reason for not being truthful during the [t]rial and that her
testimony was essentially delivered under duress.”).
The PCRA court addressed this claim in its Opinion, and determined
that trial counsel was not ineffective because the PCRA court had found
Reid’s testimony and recantation at the PCRA hearing to be incredible. See
PCRA Court Opinion, 6/1/14, at 20-23. We agree with the PCRA court’s
3
As an addendum, based on our above discussion regarding the purported
inconsistencies between Trooper Claar’s testimony and the video, the PCRA
court properly determined that trial counsel was not ineffective for
determining that there was no merit to this issue, and that it did not have a
chance of success on direct appeal. As the PCRA court noted in its Opinion,
any alleged inconsistencies are “minor,” and raising this issue would have
been a “fruitless venture.” PCRA Court Opinion, 6/1/14, at 12; see also id.
at 14 (stating that “[trial counsel] did not dwell on these inconsistencies
because they would have had no impact on the outcome of the trial.”).
-6-
J-S11041-15
determination and rationale, which is supported by the record, and affirm on
this basis with regard to Blenman’s final issue. See id.
Because we conclude that the PCRA court neither abused its discretion
nor committed an error of law by denying Blenman’s first PCRA Petition, we
affirm the Order on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2015
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L~' ~
IN THE COURT OF COMMON PLEAS LEBANON COUNTY~
Jl'jl ;'.:
,
.; .-- . • :'.
L •.•
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEAL TH OF
PENNSYLVANIA
v. NO. CP-38-CR-358-2010
KEVIN BLENMAN
APPEARANCES
Jonathan Faust, Esquire For Commonwealth of Pennsylvania
DISTRICT ATTORNEY'S OFFICE
Erin Zimmerer, Esquire For Kevin Blenman
PUBLIC DEFENDER'S OFFICE
OPINION BY CHARLES, J.! June 27, 2014
Following a Jury Trial, Kevin Blenman (hereafter "DEFENDANT")
was convicted of several drug-related offenses. His charges originated
from a canine sniff and subsequent search of his vehicle, from which
police recovered over seven pounds of marijuana. DEFENDANT filed a
Petition for Post-Conviction Relief on October 2, 2013, alleging several
claims of ineffective assistance of counsel against his Trial attorney,
Nicholas Sidelnik (hereafter "TRIAL COUNSEL"). Because we find today
that the issues DEFENDANT raised would have had no impact on the
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outcome of his Trial, we affirm our decision of April 21, 2014 to deny his
PCRA Petition.
I. FACTS
On February 5, 2010, Trooper Robert W. Claar of the Pennsylvania
State Police stopped a vehicle driven by DEFENDANT for failure to
display a registration sticker. After DEFENDANT rolled down his window,
Trooper Claar noticed the smell of burnt marijuana emanating from the
-.
vehicle. Trooper Claar explained the reason for the stop and indicated to
DEFENDANT that he was driving ,without displaying a registration sticker
or temporary paper registration. DEFENDANT informed Trooper Claar
that he had a temporary paper registration on the back window. Upon a
close-up inspection and removal of dirt from the window, Trooper Claar
could see the registration through the window. DEFENDANT -explained
that his windows were tinted, and that it is difficult to see the tag.
A criminal history check on DEFENDANT revealed that he had been
previously charged three times with Possession with Intent to Deliver.
DEFENDANT also had an active bench warrant issued for his arrest at the
time of the traffic stop, and he was driving with a suspended and expired
license. Trooper Claar asked DEFENDANT to step out of the vehicle.
Once DEFENDANT was out of the vehicle, Trooper Claar questioned him
on his whereabouts and whether there were any ·guns in the car.
DEFENDANT stated that there was not a gun in the vehicle. Trooper Claar
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then asked DEFENDANT if there was cocaine in the vehicle. DEFENDANT
stated that there was not. When questioned about the marijuana smell,
DEFENDANT informed him that he and his passenger, Dominique Reid
(hereafter "REI DilL had just finished smoking marijuana prior to the traffic
stop. He explained that he and REID were coming home from visiting a
friend in Philadelphia.
After DEFENDANT denied consent to a search of his vehicle,
Trooper Claar informed him that he was going to deploy his State Police
JI
Drug Detection (hereafter "SPDD ) dog in the vehicle. DEFENDANT then
admitted that he frequently makes :'runsJl to Philadelphia for people. He
explained that he was coming home from one of these "runs", but he did
not know what was in his vehicle.
State Police Detection dog Draco was deployed to sniff the vehicle. 1
DRACO alerted the officer of the presence of drugs while he was outside
of the vehicle, and again when he was inside of the vehicle. He alerted to
a red cooler and small suitcase in the rear of the vehicle. DEFENDANT
was arrested for the bench warrant and his vehicle was impounded.
Trooper Claar applied for and was issued a search warrant to search
DEFENDANT's vehicle. During the search, seven gal/on zip lock bags full
of marijuana totaling 7.3 pounds were found in a duffle bag located in the
cooler. An additional 10 grams of marijuana were found in the glove box.
Based upon these findings, DEFENDANT was charged as follows:
I DRACO is a canine certified in the detection oftbe odor ofmarijuanalhashish, cocaine hydrochloride/cocaine
base, heroine hydrochloride, and d, I-methamphetamine hydrochloride. DRACO has been a certified team member
since July 1,2008.
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Count I: Violation of the Controlled Substance, Drug, Device, and
Cosmetic Act - Possession with Intent to Deliver Marijuana 2
Count II: Violation of the Controlled Substance, Drug, Device, and
Cosmetic Act - Possession of Marijuana 3
Count III: Violation of the Controlled Substance, Drug,. Device, and
Cosmetic Act - Possession of Drug Paraphernalia 4
On May 14,2010, DEFENDANT filed an Omnibus Pre-Trial Motion to
Suppress Evidence and Dismiss Charges, challenging the constitutionality
of the admission of the following evidence:
(1) The evidence obtained via the traffic stop;
(2) Statements made by DEFENDANT while subject to a custodial
interrogation;
(3) Evidence obtained via the canine search of his vehicle; and
(4) Evidence seized from his vehicle.
We denied all but one of DEFENDANT's Motions on September 1,
2010 - we granted DEFENDANT's Motion to Suppress the statements he
made while subject to a custodial interrogation.
235 Pa.C.S.A. § 780-113(a)(30).
335 Pa.C.S.A. § 780-113(a)(16).
435 Pa.C.S.A. § 780-113(a)(32).
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DEFENDANT's case was submitted for a jury trial on November 2,
2010. At trial, the Commonwealth called five witnesses. After roughly
one and one-half hours of deliberation, the jury returned verdicts of guilty
on all three charges. Because a dispute existed with respect to the
amount of marijuana possessed by the Defendant for purposes of Counts
1 and 2 (N.T. 11/2/2010 p. 8), we submitted a special interrogatory with
respect to Counts 1 and 2. That interrogatory read:
If you find the Defendant guilty of Count (1) [2], do you find
beyond a reasonable doubt that the amount of marijuana
possessed by the Defendant was between one pounds and ten
pounds?
(Yes) (No)
The jury responded "~yes" to this special interrogatory with respect to both
counts.
DEFENDANT was brought before us for sentencing on December 29,
2010. At that time, we noted the extensive amount of marijuana
possessed by DEFENDANT, and we noted DEFENDANT's prior criminal
history that included multiple drug offenses. In addition, we were advised
by the Commonwealth that it sought to apply a drug weight ma'ndatory of
two years on Count 1. After consideration of everything, we imposed a
sentence on Count 1 of 2 years to 6 six years in a state correctional
5We selected the one pound to ten pound amounts for the special interrogatory because those amounts control the
offense gravity score of Count 1. Under Pennsylvania's Sentencing Guidelines, the offense gravity score for
Possession of Marijuana between one and ten pounds is a five, while the offense gravity score for Possession of
Marijuana under one pound is a three. (N.T.8). The special interrogatory was not designed to address mandatory
sentencing provisions.
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facility. We declared that Count 2 should merge with Count 1. We
imposed a consecutive 6 month to 1 year sentence on Count 3. Thus, the
aggregate sentence we imposed was 2 % to 7 years.
Following sentencing, DEFENDANT filed timely Post-Sentence
Motions, which we denied in an ii-page Opinion dated March 18, 2011.
DEFENDANT filed a pro-se Post-Conviction Relief Act Petition on April 8,
2013, and an Amended Petition on October 2, 2013. Therein,
DEFENDANT argued that he was denied his Constitutional right to
effective assistance of counsel during his proceedings. We conducted a
Hearing on all but one of DEFEDANT's Post-Conviction issues on October
18, 2013. Because DEFENDANT failed to timely notify the Commonwealth
of a witness prior to his Hearing, we continued the conclusion of the
Hearing to April 21, 2014 in order to afford the Commonwealth time to
investigate and rebut DEFENDANT's untimely claim.
Following the conclusion of the Hearing on April 21, 2014, we issued
an Order denying DEFENDANT's Petition for Post-Conviction Relief.
DEFENDANT filed a timely appeal to the Superior Court on May 8, 2014.
We author today's Opinion to further explain our rationale in denying
DEFENDANT's Petition for Post-Conviction Relief.
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II. DISCUSSION
A. The Post-Conviction Relief Act
The Post-Conviction Relief Act (hereafter "PCRA") provides a
process by which persons convicted of crimes they did not commit and
persons serving illegal sentences can obt~in relief. 42 Pa.C.S.A. § 9542.
The PCRA is the exclusive method by which collateral relief may be
obtai ned in Pen nsylvan ia. C01J1monwealth v. Chester, 733 A.2d 1242,
1250 (Pa. 1999). To be eligible for relief, a PCRA defendant must prove
the following elements by a preponderance of evidence:
(1) That he has been convicted of a crime under the laws of this
Commonwealth and that he is serving a sentence for that crime;
(2) That the conviction resulted from one of the enumerated errors
listed in § 9543(a)(2) of the PCRA;
(3) That the allegation of error has not previously been litigated or
waived; and
(4) That any failure to litigate the issue previously was not the result of
a rational, strategic, or tactical decision by the Defendant or his
counsel.
See 42 Pa.C.S.A. § 9543.
When a claim of ineffective assistance of counsel is raised,
additional principles apply. Trial counsel is presumed to be effective, and
the Defendant bears the burden of proving otherwise. Commonwealth v.
Lewis, 708 A.2d 497,500 (Pa.Super. 1998); Commonwealth v. Williams,
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570 A.2d 75, 81 (Pa. 1990). In determining whether counsel rendered
ineffective assistance, the Court must first determine whether the issue
underlying the claim of ineffectiveness has even arguable merit.
Commonwealth v. DiNicoJa, 751 A.2d 197, 198 (Pa.Super. 2000);
Commonwealth v. Johnson, 588 A.2d 1303, 1305 (Pa. 1991). If the
claim is without arguable merit, the Court's inquiry ends, as counsel will
not be deemed ineffective for failing to pursue a meritless issue. Jd.
Even if the underlying claim is of arguable merit, the Defendant must
establish that the course of action chosen by counsel had no reasonable
basis designed to effectuate the Defendant's interest. Jd. In addition, the
Defendant must also establish that but for counsel's deficient
performance, the result of the trial would have been different. Jd.
DEFENDANT's Amended PCRA Petition alleged the following four
errors of TRIAL COUNSEL:
1. TRIAL COUNSEL failed to introduce the traffic stop video at
the Pre-Trial Hearing to impeach the testimony of the officer;
2. TRIAL COUNSEL withheld discovery materials from
DEFENDANT by failing to show him the video of the traffic
stop;
3. TRIAL COUNSEL failed to challenge the reliability of the
drug sniffing dog, Draco; and
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4. TRIAL COUNSEL failed to consult with DEFENDANT
regarding his appeal.
DEFENDANT alleged an additional ground for relief under the Act:
5. That witness REI D disavowed her trial testimony and
acknowledged that she lied at trial.
We conducted two separate factual Hearings on DEFENDANT's Petition.
For the reasons that follow, we conclude that our decision to deny
DEFENDANT _relief under the Post-Conviction Relief Act was the right
one.
1. Failure to Introduce the Traffic Stop Video at the Pre-Trial
Hearing
DEFENDANT argues that TRIAL COUNSEL provided him with
ineffective assistance because he failed to introduce the traffic stop
video at the Pre-Trial Hearing. DEFENDANT explains that he did not
actually see the traffic stop video until August of 2010. When he finally
viewed the video, he noticed that there were several inconsistencies
between the officer's testimony and what was depicted in the traffic stop
video. He explains that TRIAL COUNSEL should have raised these
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inconsistencies at the Pre-Trial Hearing to impeach the testimony of the
officer.
We initially note that the traffic stop video was provided to the Court
for review and was admitted as Exhibit 1 to the Pre-Trial Hearing. N.T.
6/16/2010 p. 23. This Court was therefore able to thoroughly review the
video and the Hearing testimony before rendering our decision to deny
DEFENDANT's Motion to Suppress the evidence seized from his vehicle.
We conclude therefore that the fact that the video of the traffic stop was
not actually physically shown at the Pre-Trial Hearing had no bearing on
the outcome of that Pre-Trial Hearing.
DEFENDANT hangs his hat on an alleged minor inconsistency in
Trooper Claar's testimony compared to what is depicted in the traffic
stop video. Trooper Claar testified that Draco alerted him to the
presence of drugs in a red cooler in the rear of the vehicle. When asked
how he knew that Draco was alerting to the presence of drugs in the red
cooler, Trooper Claar testified that he saw Draco through the window
from behind the vehicle. However, the video shows that Trooper Claar
never walked behind the vehicle, and instead remained at the side of the
vehicle. DEFENDANT argues that Trooper Claar could not have seen
what Draco was alerting him to from his vantage point. He explains that
TRIAL COUNSEL should have raised this issue at the Pre-Trial Hearing.
Assuming arguendo that Trooper Claar was unable to see Draco
insid e the vehicle from his vantage point, sufficient evidence existed
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independent of Trooper Claar visually observing Draco within the vehicle
to create probable cause:
(1) Trooper Claar noted that he detected the odor of burnt marijuana
coming from the DEFENDANT's vehicle when he approached the
window.
(2) Trooper Claar conducted a criminal history check of DEFENDANT
which revealed that DEFENDANT had been previously charged three
times with Possession with Intent to Deliver.
(3) DRACO was deployed on the exterior of the vehicle and was alerted
to the open driver's door. While inside of the vehicle, Draco hopped
to the back seat of the vehicle and continued to bark and alert
Trooper Claar to the presence of marijuana.
Based on this evidence alone, it is clear that the Magistrate had a
substantial basis for concluding that probable cause existed to search
DEFENDANT's vehicle. TRIAL COUNSEL showing the video at the
Hearing and pressing Trooper Claar on a minor inconsistency in his
testimony would have therefore been a fruitless venture. As such, we
cannot find TRIAL COUNSEL ineffective for failing to introduce the video
at the Hearing.
2. Withholding of Discovery Materials from DEFENDANT
DEFENDANT further insists that TRIAL COUNSEL should have
reviewed the traffic stop video with him prior to the Pre-Trial Hearing so
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that DEFENDANT could have searched for inconsistencies in the video.
DEFENDANT wanted to be aware of what was going to be shown to the
Court via the traffic stop video so that he could offer help to his counsel
in order to question Trooper Claar. N.T. 10/18/2013 p. 4. For instance,
as described above, he sought to impeach the testimony of Trooper Claar
by pointing out minor inconsistencies between the video and Trooper
Claar's testimony. N.T. 10/18/2013 p. 12. He believes that if he would
have been able to view the video before the Pre-Trial Hearing, it would
have helped him prepare his defense. N.T. 10/18/2013 p. 11.
The fact that TRIAL COUNSEL did not show DEFENDANT the video
of the traffic stop similarly had no bearing on this Court's decision with
respect to the Pre-Trial issue, nor did it have any bearing'with respect to
the presentation of evidence at trial. DEFENDANT identified minor
discrepancies between the video and the officer's testimony that he
sought to discuss with TR'IAL COUNSEL and raise during the Pre-Trial
Hearing. The fact that Trooper Claar observed Draco identify the
presence of drugs from the side of the vehicle rather than the back of the
\-0
vehicle as he testified is not significant enough"discredit his ·testimony.
It is clear from the video that Draco first detected the odor of marijuana
from outside the vehicle; he began barking and jumping around. After
Draco jumped in the driver's side door on his own, he continued to bark
and alert to the presence of marijuana. Trooper Claar testified that he
could see Draco alerting to the red cooler in the back of the car.
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TRIAL COUNSEL had a chance to fully review the traffic stop video.
N.T. 10/18/2013 p. 47. TRIAL COUNSEL also discussed with
DEFENDANT his recollection of what occurred at the traffic stop. TRIAL
COU NSEL heard the testimony of Trooper Claar and his recollection of
the drug sniff, and he then cross-examined him on his actions during the
drug sniff (See N.T. 6/1612010 pp. 23-36). This Court was then able to
review the video in light of the Hearing testimony. We were unable to
discern any glaring discrepancies between the Hearing testimony and the
video that TRIAL COUNSEL had missed.
It is clear that TRIAL COUNSEL was fully aware of the minor
inconsistencies between the video and Trooper Claar's testimony to
which DEFENDANT refers in his PCRA Petition. It is also clear that he
did not dwell on these inconsistencies because they would have had no
impact on the outcome of the trial. More than enough evidence existed
to establish probable cause to search DEFENDANT's vehicle, and we are
confident that DEFENDANT's screening of the video prior to Trial would
have had no impact on its outcome. As such, we cannot conclude that
TRIAL COUNSEL was ineffective for failing to show DEFENDANT the
traffic stop video prior to Trial.
3. Failure to Challenge the Reliability of Draco
DEFENDANT next claims that TRIAL COUNSEL failed to challenge
the reliability of the drug dog, Draco. DEFENDANT's sole argument
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regarding the reliability of Draco is that he never alerted on the glove
compartment even th ough the re we re drugs inside. N. T. 10/18/2013 p.
25. DEFENDANT therefore argues that Draco could not be reliable. He
submits that TRIAL COUNSEL should have challenged the reliability of
Draco at Trial.
At the Pre-Trial Hearing, Trooper Claar testified to the training and
certification of Draco as a drug detection dog. Draco is certified in the
detection of the odor of marijuana/hashish, cocaine
hydrochloride/cocaine base, heroine hydrochloride, and d, 1-
methamphetamine hydrochloride. N'.T. 6/16/2010 p. 13. Draco has been
a certified team member since July 1, 2008.
DEFENDANT expected TRIAL COUNSEL to call into question
Draco's reliability at Trial because Draco never alerted on the drugs in
the glove compartment. TRIAL COUNSEL reminded us at DEFENDANT's
first PCRA Hearing that seven and one-half pounds of marijuana were
located in the red cooler that Draco hit upon, while only a very small
amount of marijuana was located in the glove compartment. He
explained that it was not surprising that Draco chose to alert to the
cool er rather th a n th e g love compartment. Because of this, he concluded
that a challenge to Draco's reliability would have been a meritless issue
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in t his cas e . N . T. 1 0/1 8/20 1 3 Pp. 49 - 50.
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We follow the logic of TRIAL COUNSEL and conclude that Draco's
decision to hit upon the large amount of marijuana in the cooler instead
of the small amount of marijuana in the glove compartment is not
evidence that Draco's drug sniff was unreliable. Trooper Claar testified
to Draco's credentials and capabilities as a drug sniffing dog. The traffic
stop video clearly shows Draco sniffing around the outside of the vehicle
and alerting to the smell of marijuana before he jumps inside the vehicle.
Trooper Claar testified at trial that he could see Draco inside the vehicle
sniffing the red cooler and alerting him to the presence of a large amount
of drugs therein. We are confidenfthat a challenge to Draco's reliability
in light of these facts would have failed. Because a challenge to Draco's
reliability would have had no impact on DEFENDANT's verdict at Trial,
we do not find TRIAL COUNSEL ineffective for choosing not to pursue
this argument.
4. Failure to Consult with DEFENDANT Regarding His Appeal
DEFENDANT next explains that TRIAL COUNSEL failed to discuss
and pursue all issues with him that he wished to raise on appeal.
Specifically, DEFENDANT alleges that TRIAL COUNSEL did not discuss
the reliability of Draco with DEFENDANT, and did not challenge the dog's
reliability on appeal. N.T. 10/18/2013 p. 14. TRIAL COUNSEL further
failed to address the inconsistency of the officer's testimony with the
traffic stop video on appeal. N.T. 10/18/2013 p. 15. DEFENDANT claims
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that he told TRIAL COUNSEL that he wanted to appeal these issues, but \ "
he failed to do so. N.T. 10/18/2013 p. 17.
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TRIAL COUNSEL testified that he met with DEFENDANT prior to his \
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sentencing to discuss the issues he wanted to raise on appeal. N.T.
10/18/2013 p. 50. He explained that he included each of the issues
DEFENDANT requested for him to appeal. N.T. 10/18/2013 p. 51. He
explained that DEFENDANT referenced the reliability of Draco's drug
sniff, but his request was vague and TRIAL COUNSEL was not sure what
exactly DEFENDANT wanted to appeal. He testified that he "felt that
[the) issue was tied to the drug sniff, not the actual search of the interior
of the vehicle." N.T. 10/18/2013 p. 50. Since he concluded that a
challenge to Draco's reliability would have been meritless, he did not
include this issue in the appeal.
Central to a claim of ineffective assistance of counsel under the
PCRA is an attorney's failure to pursue a meritorious issue that would
have likely affected the outcome of a Defendant's trial. Conversely,
counsel cannot be deemed ineffective for failing to pursue a meritless
issue. As discussed above, an attack on Draco's reliability under the
circumstances of this case would likely have not affected the outcome of
DEFENDANT's trial. TRIAL COUNSEL therefore cannot be deemed
ineffective for failing to pursue this meritless argument.
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DEFENDANT also explains that the two-Judge majority of the
Superior Court panel deemed his challenge to the Search Warrant
waived because the Search Warrant itself was not part of the record.
DEFENDANT references the Superior Court's Opinion of April 17,2012
that affirms DEFENDANT's sentence. Because of this, DEFENDANT
suggests that TRIAL COUNSEL was ineffective for failing to ensure that
the Search Warrant was part of the record.
In Judge Bowes' Concurring Statement,jhe opined that the validity
of the warrant could have been determined based upon the transcripts of
the suppression hearing contained in the certified record.fHe explained,
therefore, that the Search Warrant itself did not have to be a part of the
record for the Superior Court to rule on the issue. Judge Bowes
reasoned:
The warrant is sound because the evidence adduced at that
proceeding confirms that the vehicular stop was legal,
reasonable suspicion to order the canine sniff was present,
and the canine alerted to the presence of drugs while it was
located outside the vehicle. Thus, even if the interior alert
was used to sustain the warrant and that alert was
constituti"onally infirm, the warrant itself remained lawful due
to the exterior alert. Based on the transcript in the record, we
are able to discern that there was sufficient untainted
information to support a finding of probable cause an~ render
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the warrant acceptable. Not agreeing with the majority's
finding of waiver, I concur.
Concurring Statement, 4/17/2012, p. 3.
We incorporate this legal analysis undertaken by Judge Bowes into
our Opinion. We find that ample evidence exists in the record to support
a finding that probable cause existed at the time of the search. The
record indicates that while Trooper Claar was speaking with
DEFENDANT, he detected the odor of burnt marijuana coming from the
vehicle. N.T. 6/16/2010 p. 7. This alone gave Trooper Claar reasonable
suspicion to deploy Draco. Commonwealth v. Kemp, 961 A.2d 1247(Pa.Super. 2008) (reasonable suspicion present when police smell odor
of drugs); Commonwealth v. Rogers, 849 A.2d 1185, 1191 (Pa. 2004)
(to support canine sniff of a place, including vehicle, police must possess
reasonable suspicion). This reasonable suspicion became probable
cause when Draco performed an exterior sniff of the vehicle and alerted
to the marijuana (N.T. 6/16/2010 p. 13) (Commonwealth v. Hernandez,
935 A.2d 1275, 1285 (Pa. 2007) ("the law is clear that once a canine
sniff of a vehicle's exterior triggers a positive indication, reasonable
suspicion of contraband in the vehicle ripens to probable cause")).
Even had the Search Warrant itself been appended to
DEFENDANT's Appeal, the Superior Court's decision to affirm his
Sentence would not have changed. The Search Warrant states that
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Trooper Claar pulled DEFENDANT over pursuant to a perceived traffic
violation. Trooper Claar then smelled the odor of burnt marijuana coming
from the vehicle. Thereafter, Draco performed an exterior sniff of the
vehicle and alerted to the presence of marijuana. Had the Superior
Court received the actual Search Warrant with the Record, they would
have found these facts within and would have concluded that Trooper
Claar had probable cause to search the vehicle.
TRIAL COUNSEL clearly consulted with DEFENDANT regarding his
appeal, and DEFENDANT has not identified any meritorious issues that
TRIAL COUNSEL failed to raise on appeal. We therefore cannot find that
TRIAL COUNSEL gave ineffective assistance during DEFENDANT's
appeal process.
5. Trial Testimony of Dominique Reid
Finally, DEFENDANT argues that he is entitled to Post-Conviction
Relief because trial witness REID recanted her testimony, explaining that
she was "coerced" into testifying against DEFENDANT.6 Since we found
that her testimony at the October 18, 2013 PCRA Hearing was not
credible, we find that DEFENDANT is not entitled to relief under the
PC RA on this ground.
6Notice regarding Ms. REID's change of testimony was not provided to the
Commonwealth until less than two weeks before the first PCRA Hearing. Because
notice of this issue was not timely provided to the Commonwealth and because the
Commonwealth has not had the opportunity to subpoena necessary witnesses to rebut
REID's testimony, we continued the PCRA Hearing until April 21,2014 in order to
afford the Commonwealth time to procure witnesses.
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REID testified against DEFENDANT during trial, explaining that she
did not know that the red cooler full of marijuana was in the vehicle. She
explained that there was a period of thirty minutes to an hour where
DEF ENDANT left her at his cousin's house in Philadelphia. N. T.
11/2/2010 pp. 34-35. REID explained that she did not know where
DEFENDANT went during the time that she was at his cousin's house.
This testimony created a window of time during which DEFENDANT could
have obtained the red cooler full of marijuana because his whereabouts
were unknown to REID. REID also prepared a written statement prior to
Trial at the Commonwealth's request memorializing this information.
However, at the October 18, 2013 PCRA Hearing, REID explained
that her trial testimony was coerced and that DEFENDANT never left her
at his cousin's house. She insists that she and DEFENDANT were
together during their entire trip to Philadelphia. Since REID indicated at
Trial that the vehicle they were driving belonged to DEFENDANT's
girlfriend, Aigner London (N.T. 11/2/2010 p. 38), this created the
possibility that the red cooler full of marijuana belonged to
DEFENDANT's girlfriend and not DEFENDANT.
REID explained that she lied at trial because she felt "intimidated"
during her interview with the police and Attorney McAteer of the Lebanon
County District Attorney's Office. N.T. 10/18/2013 p. 31. She
proclaimed that Attorney McAteer and the officers told her they were
going to "lock her up" if she didn't testify that DEFENDANT left her at his
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cousin's house for a brief period of time during their trip. N.T.
10/18/2013 p. 31. They told her that she "wouldn't be able to go to
school". Her testimony at DEFENDANT's PCRA Hearing was that she
was with DEFENDANT during the entire trip, and she did not see him
place the red cooler full of marijuana in the vehicle. She explained that
she felt she could not tell the truth at DEFENDANT's jury trial because
she was afraid that she was going to "get locked up" that day. N.T.
10/18/2013 p. 36.
We do not find REID's attempt to recant her testimony to be credible
for several reasons. We initially note that REID provided Trial testimony
on N ovem ber 2, 2010, and waited until now to recant her testimony. It is
also obvious to this Court that REID has a motive to assist DEFENDANT.
She indicated in her testimony, "I have love for the DEFENDANT," "I do
not want him to be in jail," and "I pray that he comes home." N.T.
10/18/2013 pp. 44-45. We also note that throughout the Hearing on
October 15, 2013, REID sat in the courtroom with friends and family
members who obviously supported DEFENDANT.
Further, considerable testimony was presented from Trooper Claar
and Attorney McAteerthat REID was not in any way threatened or
intimated when she met with police prior to her Trial testimony. In fact,
Attorney McAteer indicated that REID was accompanied by her father
and was extremely cooperative at all times during her meetings at the
District Attorney's office. He explained that he would never threaten a
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witness to elicit testimony, and that REED was not in any way reluctant
to provide him with information. N.T. 4/2112014 pp. 14-15.
Ultimately, we find Attorney McAteer's testimony to be credible. At
the PCRA Hearing, it was clear to us that REID was simply attempting to
help her friend instead of tell the truth. REID testified under oath in 2010
to information she knew at the time to be accurate, and any attempt by
REID to disavow such testimony years later is simply not credible. As
such, we will not grant DEFENDANT's PCRA on these grounds.
III. CONCLUSION
It is clear to us that DEFENDANT's appeal should be denied for
several reasons. First, since the traffic stop video was provided to the
Court for review and was admitted as Exhibit 1 to the Pre-Trial Hearing,
introducing and cross-examining the video at the Hearing would not have
impacted the outcome of DEFENDANT's Suppression Hearing because
this Court was able to review the video and observe the interaction
between DEFENDANT and Trooper Claar, as well as the subsequent drug
sniff. We concluded - and still conclude today - that the drug sniff was
based on a reasonable suspicion, and the subsequent search of
DEFENDANT's vehicle was based on probable cause. As such, TRIAL
COUNSEL should not be deemed ineffective for choosing not to
introduce the video at the Hearing.
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Next, we fail to see how showing DEFENDANT the video before the
Hearing and Trial would have impacted his case. DEFENDANT argues
that he could have pointed out certain observations to TRIAL COUNSEL
and could have helped him prepare a defense, but after viewing the
video, this Court is not aware of any "observations" that TRIAL
COUNSEL failed to raise at the Pre-Trial Hearing and at Trial that would
have had any arguable merit. We therefore find that TRIAL COUNSEL
was not ineffective for failing to show DEFENDANT the video prior to the
Pre-Trial Hearing.
Next, DEFENDANT's argument that Draco is unreliable because he
failed to hit on the marijuana in the glove compartment is meritless.
Trooper Claar testified to Draco's credentials and capabilities as a drug
sniffing dog. The traffic stop video clearly shows Draco sniffing around
the outside of the vehicle and alerting to the smell of marijuana before he
jumps inside the vehicle. When he jumped inside the vehicle, Draco not
surprisingly chose to alert Trooper Claar to the seven pounds of
marijuana in the red cooler, rather than the small amount in the glove
compartment. We are confident that a challenge to Draco's reliability
would have failed. As such, we find that TRIAL COUNSEL was not
effective for failing to challenge Draco's reliability in this regard.
Next, we find that TRIAL COUNSEL adequately represented
DEFENDANT throughout his appeal. TRIAL COUNSEL and DEFENDANT
both testified that they met to discuss the issues DEFENDANT wished to
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raise on appeal. DEFENDANT is simply unhappy because TRIAL
COUNSEL refused to appeal the meritless issues of Draco's reliability
and the discrepancy between Trooper Claar's testimony compared to the
video. We cannot find TRIAL COUNSEL ineffective for choosing not to
pursue a meritless argument on appeal.
Finally, we find that the PCRA testimony of REID is not credible,
and we find the PCRA testimony of Attorney McAteer to be credible. It is
clear that REID had a motive to recant her testimony. Further, REID
waited at least 2 and a half years to come forth and claim that she lied at
Trial. We find that REID was not intimidated or coerced when she wrote
her statement to police, nor was she threatened or coerced when she
testified against DEFENDANT at trial. As such, DEFENDANT's argument
must fail.
In sum, we reject Defendant's arguments and conclude that
Defendant's appeal should be denied. A Court Order will be entered on
today's date to transmit Defendant's file to the Superior Court for their
review.
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