Opinion
J-S72041-18 No. 740 MDA 2018
06-04-2019
COMMONWEALTH OF PENNSYLVANIA v. RICARDO VARGAS, JR., Appellant.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order, April 19, 2018, in the Court of Common Pleas of Lancaster County, Criminal Division at No(s): CP-36-CR-0001281-2016. BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J. MEMORANDUM BY KUNSELMAN, J.:
Ricardo Vargas Jr., appeals from the order denying his petition for relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. For the reasons that follow, we affirm.
The PCRA court summarized the pertinent facts involving the investigation of Vargas as follows:
The investigation in this matter began in February 2016 based on information from a confidential informant identified as CI #1 ("CI #1)." CI #1 informed Detective Jesse Zimmerman that a man named "Rick" was in the business of selling heroin from his residence at 45 S. Marshall Street in Lancaster City and that he/she had personally purchased heroin directly from "Rick" at his residence as recently as February 2016. CI #1 provided a physical description of "Rick" and pointed out "Rick's" residence and a burgundy Ford Explorer bearing Pennsylvania registration JZS-7097 that he [sic] knew "Rick" to drive. Detective Zimmerman completed a PennDot registration check of JZS-7097 and discovered that the
burgundy Ford Explorer was owned by [Vargas]. Detective Zimmerman also obtained a photograph of [Vargas] from PennDot and CI #1 positively identified the photograph of [Vargas] as the person he/she knows as "Rick."PCRA Court Opinion, 4/19/18, at 1-3 (footnotes omitted).
CI #1 had previously provided reliable information to police that led to at least one arrest and [drug] conviction[.] CI #1 also expressed knowledge of controlled substances, including the pricing, packaging and terminology associated with the sale of heroin. Using CI #1, the Lancaster County Drug Task Force conducted two (2) separate controlled purchases of cocaine from [Vargas] at his residence. During both of the controlled purchases, CI #1 was provided with Drug Task Force/DA funds, was searched for contraband prior to the purchase with negative results, was observed walking to and from [Vargas'] residence, upon return, turned over a quantity of heroin reportedly purchased from [Vargas] and reported observing additional quantities of heroin within the residence for the purpose of future sales.
During the month of March 2016, Detective Zimmerman conducted surveillance at 45 S. Marshall Street and observed [Vargas] exit and enter the residence on several occasions and also observed various individuals enter and exit the residence for short periods of time. Detective Zimmerman states that his training and experience demonstrate that such activity is indicative of drug dealing. Detective Zimmerman states that his training and experience demonstrate that possessors and sellers of illegal drugs are known to maintain certain items related to their criminal activity within their residence, including: firearms or other weapons for securing drugs and proceeds; books, records, receipts, notes and ledgers for accounting; and paraphernalia for cutting, packaging, weighing and distributing the illegal drugs. Detective Zimmerman obtained a criminal history for [Vargas], which revealed that on January 13, 2011, [Vargas] pled guilty to a felony [drug charge] and was sentenced to two (2) to four (4) years of incarceration and two (2) years of probation.
Following his investigation, Detective Zimmerman applied for and obtained, on March 4, 2016, a search warrant for Vargas' residence. Members of the Lancaster County Drug Task Force executed the warrant that same day. As the PCRA court further explained:
Prior to executing the search warrant, detectives conducted surveillance and waited until [Vargas] was present at the residence to execute the search warrant. Detective Zimmerman testified that the purpose of waiting for [Vargas] to be present was to make sure [Vargas] did not arrive while they were executing the warrant and to avoid giving [Vargas] the opportunity to destroy evidence. Furthermore, Detective Troy DeShong testified that suspects are detained during the execution of search warrants because weapons and guns are commonly associated with the drug trade and pose a threat to officer safety during those drug investigations. Detective Deshong also testified that it is helpful to have the suspect present in order to avoid the destruction of evidence, to prevent flight, to limit the destruction of the suspect's personal property during the search and because suspects will often show detectives where the drugs are located, thereby preventing the dangers posed to officers by the presence of Fentanyl in heroin.
Eventually, Detectives observed [Vargas] park a burgundy Ford Explorer directly across the street from the front of his residence in a parking stall. After [Vargas'] vehicle was parked, a female passenger got out and proceeded to walk towards the residence. At that point, uniformed Detectives surrounded [Vargas] and instructed him to get on the ground. Detective Deshong testified that he detained [Vargas] for the execution of the search warrant for officer safety, to prevent the destruction of evidence and to prevent flight. After [Vargas] got onto the ground, Detective Deshong advised [him] of the search warrant and, for purposes of officer safety, initiated a pat-down and asked [Vargas] if he had anything that Detective DeShong should now about on his person. In response, [Vargas] stated that he had two (2) bundles of heroin in his pocket. After the drugs were located on [Vargas'] person, he was
arrested, placed [] in handcuffs and walked to his residence for the execution of the search warrant.PCRA Court Opinion, 4/19/18, at 3-5 (footnotes omitted).
Detective Zimmerman read [Vargas] the service portion of the search warrant and the Miranda warnings inside of his residence. The [ Miranda ] warnings were read from a preprinted card and [Vargas] indicated that he understood his rights. Subsequently, he told Detective Zimmerman where the drugs were located, provided access to the safe where they were kept and admitted that the items found belonged to him. After the drugs, a handgun and drug paraphernalia were located, [Vargas] was taken to the Lancaster City Drug [Task] Force Officer at the Lancaster City Police Station. Detective Zimmerman testified that if [Vargas] had not already been under arrest, that he would have been placed under arrest at that time.
[Vargas'] vehicle was seized after the execution of the search warrant as an asset seizure and was driven to the Lancaster City Police Station. Detective Zimmerman obtained [Vargas'] basic information, read him the Miranda warnings for a second time and then proceeded to question [Vargas]. At some point while [Vargas] was in the Lancaster City Police Station, Detective Ryan Kelly requested that [Vargas] consent to a search of his vehicle. [Vargas] consented to the search and signed a written consent form. An additional amount of heroin was found within [Vargas'] vehicle during that search.
Ultimately, the Commonwealth charged Vargas with various drug-related charges. Vargas' counsel filed a motion seeking to suppress evidence on the basis that the search warrant and Vargas' arrest were illegal and that Vargas' Miranda rights were violated. The trial court held a suppression hearing on January 5, 2017. At that time, Vargas' counsel eventually abandoned the claim that Vargas' arrest was illegal and that his Miranda rights were violated, and proceeded only with the claim that the search warrant was not properly supported by probable cause. Before the trial court issued its decision on the suppression issue, Vargas entered an open guilty plea to all of the charges on February 10, 2017. On April 26, 2017, the trial court imposed an aggregate term of 6¼ to 16 years of imprisonment, and a consecutive one-year probationary term. Vargas filed neither post sentence motions nor a direct appeal.
Miranda v. Arizona , 384 U.S. 436 (1966).
On August 10, 2017, Vargas filed a pro se PCRA petition. The PCRA court appointed counsel, and PCRA counsel filed an amended petition on October 6, 2017. Both Vargas and trial counsel testified at an evidentiary hearing held on December 18, 2017. By order entered April 19, 2018, the PCRA court dismissed Vargas' amended petition. This pro se appeal followed. Both Vargas and the PCRA court have complied with Pa.R.A.P. 1925.
The PCRA court granted Vargas' motion to waive counsel and proceed pro se following a hearing pursuant to Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998).
Vargas raises the following issues in his pro se brief:
1. Whether the PCRA court erred as a matter of law and/or abused its discretion in denying Vargas PCRA relief on his claim that his trial counsel was ineffective for advising him to plead guilty prior to addressing meritorious claims for suppression of evidence and prior to the trial court issuing an opinion and/or ruling on the merits of the suppression claims which trial counsel raised?
2. Whether the PCRA court erred as a matter of law and/or abused its discretion in denying without a hearing Vargas' motion for change of appointed PCRA counsel based upon PCRA counsel's ineffectiveness in failing to identify, present and litigate a meritorious claim that Vargas' trial counsel was ineffective for failing to identify and discuss with Vargas the propriety of challenging the warrantless search of a safe as located in Vargas' residence prior to advising Vargas to plead guilty?See Vargas' Brief at 4.
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, 1242 (Pa. Super. 2011)(citation omitted).
Vargas' first claim alleges the ineffective assistance of counsel in relation to the entry of his guilty plea. As this Court has summarized:
A criminal defendant has the right to effective counsel during a plea process as well as during trial. A defendant is permitted to withdraw his guilty plea under the PCRA if ineffective assistance caused the defendant to enter an involuntary plea[.]Commonwealth v. Orlando , 156 A.3d 1274, 1280 (Pa. Super. 2017) (citations omitted).
We conduct our review of such a claim in accordance with the three-pronged ineffectiveness test under section 9543(a)(2)(ii) of the PCRA. The voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.
To obtain relief under the PCRA premised on a claim that counsel was ineffective, a petitioner must establish by a preponderance of the evidence that counsel's ineffectiveness so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Johnson , 966 A.2d 523, 532 (Pa. 2009). "Generally, counsel's performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner." Id. This requires the petitioner to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or 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 unprofessional errors, the result of the proceeding would have been different." Id.
The failure to file a suppression motion under some circumstances may be evidence of the ineffective assistance of counsel. However, if the grounds underpinning that motion are without merit, counsel will not be deemed ineffective for failing to so move. The defendant must establish that there was no reasonable basis for not pursuing the suppression claim and that if the evidence had been suppressed, there is a reasonable probability that the verdict would have been more favorable. Commonwealth v. Watley , 153 A.3d 1034, 1044 (Pa. Super. 2016). Here, trial counsel did file a suppression motion but, as she testified at the evidentiary hearing, she abandoned certain claims following her additional research. See N.T., 12/18/17, at 7-8. Vargas has failed to meet his burden. After careful review, we conclude that the Honorable Howard F. Knisely has prepared thorough and well-reasoned opinions that aptly demonstrate why Vargas' ineffectiveness claims lack merit. See PCRA Court Opinion, 4/18/18, at 7-10; Pa.R.A.P. 1925(a) Opinion, 6/14/18, at 5. We therefore adopt Judge Knisely's opinions as our own in disposing of the present appeal. The parties are directed to attach a copy of these opinions to this memorandum in the event of future proceedings.
Although Judge Knisely does directly address Vargas' claim of PCRA ineffectiveness regarding the search of the safe, given his correct conclusion that the underlying suppression claim was meritless, Vargas' PCRA ineffectiveness claim fails. See Commonwealth v. Loner , 836 A.2d 125, 132 (Pa. Super. 2003) (en banc) (explaining that counsel cannot be deemed ineffective for failing to pursue a meritless claim).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 06/04/2019
Image materials not available for display.