Commonwealth vs. Beniquez-Rodriguez CP-38-CR-1507-2010

David Arnold, Esquire           For Commonwealth of Pennsylvania

District Attorney’s Office

 

Eric Winter, Esquire                        For Adalberto Beniquez-Rodriguez

 

OPINION BY CHARLES, J., December 5, 2013

 

As Justice Day eloquently explained in his Weeks v. United States Opinion, “[t]he efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established [by] years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.”[1]  It is the responsibility of this Commonwealth’s judges to protect the balance between the rights of the individual and the needs of the State.

Today, we are faced with a Defendant’s Petition for Post-Conviction Relief challenging the validity of a search that uncovered evidence sufficient to convict him and deprive him of his liberty.  Providing us with nothing more than, “I don’t think I should have to file a frivolous motion if there’s no legal basis for it,” (N.T. 11/19/2012 pp. 38-39)[2], the Defendant’s trial counsel chose not to file a Motion to Suppress this evidence.  After careful analysis, however, we conclude that a valid legal basis existed for a suppression motion and that the Defendant’s counsel should have filed one.  Accordingly, we find that Defendant’s Trial Counsel was ineffective for failing to file a Suppression Motion.

 

I.        FACTS AND PROCEDURAL HISTORY

On September 3, 2010 at approximately 4:41 p.m., Officer Minnick of the Lebanon City Police Department was on duty traveling on Church Street in the City of Lebanon (N.T. 4/8/2011 p.8).  Officer Minnick observed DEFENDANT on a bicycle.  DEFENDANT turned east on Church Street from Seventh Street.  Officer Minnick observed DEFENDANT drinking from what appeared to be a Heineken beer bottle (N.T. 4/8/2011 pp. 8-9).  Officer Minnick called to DEFENDANT to come back to him.  When DEFENDANT came back to Officer Minnick, Officer Minnick observed that DEFENDANT was holding two cellular telephones in his hand and had a third cellular telephone attached to his waistband (N.T. 4/8/2011 p.10).

During the course of Officer Minnick’s conversation with DEFENDANT, he noticed DEFENDANT was visibly shaking almost to the point where he was unable to control his shaking (N.T. 4/8/2011 p.14).  Because Officer Minnick was starting to be concerned that something was not right, he advised DEFENDANT that he was going to pat him down for weapons (N.T. 4/8/2011 p.14). Officer Minnick asked DEFENDANT to get off of his bike and DEFENDANT refused (N.T. 4/8/2011 p.15).  Because Officer Minnick had no way of knowing whether DEFENDANT was armed or not, he requested another police officer to respond to his location (N.T. 4/8/2011 p.15).  Officer David Zinda arrived. Officer Minnick again informed DEFEDANT that he was going to perform a pat-down of his person.  Officer Minnick grabbed DEFENDANT’s arm in an effort to assist him off of his bicycle at which time DEFENDANT struggled with him.  Because of DEFENDANT’s resistance, Officer Minnick handcuffed him (N.T. 4/8/2011 p.16).

After DEFENDANT was handcuffed, Officer Zinda conducted a pat-down search.  He felt something inside DEFENDANT’s pants pocket.  Office Zinda reached inside the pocket and found a folded up one dollar bill in his right front pants pocket.  After unfolding that one dollar bill, Office Zinda saw a white powdery substance that appeared to be powder cocaine (N.T. 4/8/2011 p.17). Officer Zinda also located a clear plastic knotted off bag.  The bag contained eight Xanax tablets (N.T. 4/8/2011 p.19).  Officer Zinda also searched DEFENDANT’s left pocket and found a cigarette pack. Upon further inspection of the cigarette pack, Officer Zinda found a clear plastic knotted off sandwich bag that contained cocaine. (N.T. 4/8/2011 p.20-21; Exh. 6).

On April 8, 2011, a jury convicted DEFENDANT of six counts of Violation of the Controlled Substance, Drug, Device and Cosmetic Act[3].  On May 25, 2011, this Court sentenced Defendant to serve 2 to 4 years in a state correctional facility.  On September 26, 2011, this Court denied DEFENDANT’s Post-Sentence Motions.  On October 5, 2011, DEFENDANT filed a timely appeal to the Superior Court of Pennsylvania.  On April 5, 2012, the Superior Court affirmed DEFENDANT’s conviction and sentence.

On July 13, 2012, DEFENDANT filed a timely PCRA petition.  A hearing was held on November 19, 2013 at which Officer Minnick testified that it was actually Officer Zinda who recovered the items from DEFENDANT’s pockets during the September 3, 2010 encounter[4].  Based on this revelation, the PCRA hearing was continued to allow Officer Zinda to testify.  A new Hearing was scheduled for March 1, 2013, and was continued until August 16, 2013.[5]  On August 16, a hearing was held at which Officer Zinda testified and admitted that he conducted the pat-down while Officer Minnick attempted to control DEFENDANT. (N.T. 8/16/2013 p.7)

At the PCRA Hearings, DEFENDANT raised two issues:

(1)     Whether inaccurate information presented to the jury rendered DEFENDANT’s trial unfair; and

(2)     Whether Attorney Judd was ineffective for failing to request a suppression hearing for the drugs recovered from DEFENDANT by police.

These issues are now ripe for our review and will be addressed seriatim.

 

II.       POST-CONVICTION RELIEF ACT

The Post-Conviction Relief Act (PCRA) provides a process by which persons convicted of crimes they did not commit and persons serving illegal sentences can obtain relief.  42 Pa.C.S.A. § 9542.  The PCRA is the exclusive method by which collateral relief may be obtained in Pennsylvania.  Commonwealth 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[6];

(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.  A Petitioner seeking post-conviction relief based on boilerplate allegations of constitutional error and ineffective assistance of counsel must offer proof that, in the circumstances of the case, no reliable adjudication of guilt or innocence could have taken place.  Commonwealth v. Rivers, 567 Pa. 239, 246-247, 786 A.2d 923, 927-928 (2001).

When a claim of after-acquired evidence is raised, additional principles apply.  To succeed on claim of newly discovered exculpatory evidence, the petitioner must establish that: (1) the evidence has been discovered after the trial and it could not have been obtained at or prior to trial through reasonable diligence; (2) such evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) such evidence would likely compel a different verdict.  Commonwealth v. Abu-Jamal, 553 Pa. 485, 517, 720 A.2d 79, 94 (1998), citing Commonwealth v. Williams, 537 Pa. 1, 24–26, 640 A.2d 1251, 1263 (1994).

When a claim of ineffective assistance of counsel is raised, trial counsel is presumed to be effective, and the Defendant bears the burden of proving otherwise.  Commonwealth v. Lewis, 708 A.2d 497 (Pa.Super. 1998); Commonwealth v. Williams, 570 A.2d 75 (Pa. 1990).  In order for a petitioner to establish a claim of ineffectiveness of counsel, he must satisfy a three prong test set forth by the Pennsylvania Supreme Court in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).  The Defendant must demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel’s particular course of conduct did not have some reasonable basis designed to effectuate the petitioner’s interests; and (3) but for counsel’s ineffectiveness, a reasonable probability exists that the outcome of the proceeding would have been different.  Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).  If the claim is without arguable merit, the Court’s inquiry ends, because counsel cannot be deemed ineffective for failing to pursue a meritless issue.  Commonwealth v. DiNicola, 751 A.2d 197, 198 (Pa.Super. 2000).

III.      DISCUSSION

DEFENDANT raised two issues at his PCRA hearings.  DEFENDANT first argued that Officer Minnick’s trial testimony inaccurately suggested that he had conducted the search that revealed the presence of contraband, when in fact the search was actually conducted by Officer Zinda.  DEFENDANT argues that this inconsistency warrants a new trial and that his argument is timely based upon the following provisions of the PCRA:

(i)      A violation of the Constitution of this Commonwealth or the                             Constitution or laws of the United States which, in the                                     circumstances of the particular case, so undermined the truth-                        determining process that no reliable adjudication of guilt or                             innocence could have taken place; or

(vi)    The unavailability at the time of trial of exculpatory evidence                           that has subsequently become available and would have                                changed the outcome of the trial if it had been introduced.

DEFENDANT also argued that Attorney Judd should have filed a Motion to Suppress the drugs found on DEFENDANT’s person because they were the fruit of an illegal search.  Because Attorney Judd failed to do so, DEFENDANT argued that he received ineffective assistance of counsel under subsection (ii) of the PCRA.

The first argument outlined above does not justify granting relief to DEFENDANT.  However, DEFENDANT’s second argument requires us to grant his request for PCRA relief.  Our reasons for these decisions follow:

A.      INACCURATE INFORMATION TO JURY

 

DEFENDANT argues that the Commonwealth presented factually inaccurate information to the jury regarding the search of DEFENDANT during the September 3, 2010 encounter.  He explains that during Trial, the testimony of Officer Minnick showed that Officer Minnick conducted the search and uncovered the drugs for which DEFENDANT was charged[7].  However, at the November 19, 2012 PCRA Hearing, Officer Minnick’s testimony showed that it was actually Officer Zinda who uncovered the drugs.[8]  Moreover, Officer Minnick’s PCRA testimony was consistent with his written report.[9]

We have a difficult time reconciling Officer Minnick’s testimony at trial with his testimony at the PCRA Hearing.  However, we find that the inaccurate information submitted to the jury at Trial falls short of the requirements set forth in subsections (i) and (vi) of the PCRA.  Subsection (i) requires that the Constitutional violation must be so severe that “no reliable adjudication of guilt or innocence could have taken place” at DEFENDANT’s trial.  42 Pa. Cons. Stat. Ann. § 9543(a)(2)(i) (West).  Subsection (vi) requires that submission of the after-acquired evidence “would have changed the outcome of the trial if it would have been introduced.”  42 Pa. Cons. Stat. Ann. § 9543(a)(2)(vi) (West).  While it is true that the jury was under the impression that Officer Minnick conducted the pat-down when, in fact, it was Officer Zinda that conducted the pat-down, we do not see how this fact could have changed the outcome of the case.

We find it difficult to characterize Officer Zinda’s testimony as “after-acquired evidence.”  DEFENDANT was present both at the time of the search and during Officer Minnick’s testimony at Trial.[10]  Even if we did find that this discrepancy in testimony was misleading, we find it odd that DEFENDANT only raises the issue now.

In addition, and more important, the contraband discovered by police was possessed by DEFENDANT.  Regardless of which officer actually found the drugs, the critical fact was that the drugs were seized from DEFENDANT.  After a careful review of the transcript from Trial and the two transcripts from the PCRA hearings, it is clear that Officer Minnick’s inconsistent testimony was not critical to the jury’s decision that DEFENDANT possessed drugs.  Both police officers testified that cocaine was found in DEFENDANT’s pockets.  The only inconsistency involves the identity of the searching officer.

We conclude that the identity of the searching officer likely would not have had an impact on the outcome of the case.  Moreover, it should not have been a surprise to DEFENDANT and his trial counsel that it was actually Officer Zinda that conducted the pat-down.  Accordingly, we reject DEFENDANT’s PCRA claim based upon Officer Minnick’s inconsistent testimony.

 

B.      SUPPRESSION HEARING

DEFENDANT next argues that he received ineffective assistance of counsel under subsection (ii) of the PCRA because Attorney Judd failed to file a Motion to Suppress the drugs found during DEFENDANT’s pat-down.  Because we find that a reasonable probability exists that the outcome of the proceeding would have been different had Attorney Judd filed the Motion, we find that DEFENDANT received ineffective assistance of counsel and is entitled to relief under the PCRA.
1.       The Underlying Claim is of Arguable Merit

The first element of an ineffective assistance of counsel claim is whether the petitioner’s underlying claim is of arguable merit.  If the claim is without arguable merit, the Court’s inquiry ends, because counsel cannot be deemed ineffective for failing to pursue a meritless issue.  Commonwealth v. DiNicola, 751 A.2d 197, 198 (Pa.Super. 2000).  Therefore, we must analyze the suppression issue in light of all the circumstances to determine if there is merit to DEFENDANT’s argument.  In doing so, we will address each of the Commonwealth’s proffered justifications for Officer Zinda’s search.

                             a.       Search Incident to Arrest

The prosecution posits that Officer Zinda’s search was incident to arrest, rendering the contraband in DEFENDANT’s pockets inevitably discovered.   DEFENDANT, on the other hand, argues that he was not charged for his summary offense, nor was there any indication that he was under arrest before the pat-down was conducted.[11]  The Commonwealth argues that because Officer Zinda could have arrested DEFENDANT, the search should be upheld.  DEFENDANT responds that “could have arrested” is not the standard used to trigger a warrantless search.

We begin by stating that a warrantless search incident to a lawful arrest is reasonable and no additional justification is required for a search of the defendant.  Commonwealth v. Long, 414 A.2d 113 (Pa. 1980).  This concept involves all arrests, including summary offenses.  United States v. Robinson, 38 L.Ed.2d.427 (1973).  An arrest may be accomplished by “any act that indicates an intention to take (a person) into custody and subjects him to the actual control and will of the person making the arrest.”  Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1963), Cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963).  A search “incident to” an arrest may not occur prior to an arrest, and if the DEFENDANT is not under arrest at the time of the search, the search may not later be supported as being incident to arrest.  Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), Commonwealth v. Hlavsa, 266 Pa.Super. 602, 405 A.2d 1270 (1979).

The Summary Offense in this this case reads as follows: “An individual who is an operator or an occupant in a motor vehicle may not be in possession of an open alcoholic beverage container or consume a controlled substance.” 75 Pa.C.S.A. § 3809(a).  “An individual who violates this section commits a summary offense.”  75 Pa.C.S.A. § 3809(c).  Further, “when an arrest without a warrant in a summary case is authorized by law, a police officer who exhibits some sign of authority may institute proceedings by such an arrest.” Pa.R.Crim.P. Rule 440.  Under the comments to Rule 440, the legislature explains that “it is intended that these proceedings will be instituted by arrest only in exceptional circumstances such as those involving violence, or the imminent threat of violence, or those involving a danger that the defendant will flee.”  Id.

The Commonwealth cites Commonwealth v. Williams, 390 Pa.Super. 493, 568 A.2d 1281 (1990).  In Williams, a borough police officer cited a defendant for the summary offense of disorderly conduct.  The defendant was unable to provide identification, so the officer advised the defendant he would need to go back to the police station for identification purposes.  Before placing the defendant in the police car, the officer searched the defendant and found cocaine in his jacket.  The Court held that the cocaine was admissible because it was discovered pursuant to a search incident to arrest.

The Commonwealth argues that the present case is very similar to the Williams case.  In the present case, DEFENDANT committed a Summary Offense by drinking beer while riding a bicycle.  His behavior led the officers to believe that he was a flight risk.  According to the Commonwealth, the officers had the authority to institute proceedings by arrest without a warrant; the fact that Officer Minnick ultimately did not file the summary citation is of no import.

We disagree with the Commonwealth’s comparison of the present case to Williams.  In Williams, the Defendant was cited, arrested, placed in a police car, and taken to the police station.  In the present case, DEFENDANT was not cited, arrested, placed into a police car, nor was he taken to the police station.  Contrary to the Commonwealth’s assertion, case law suggests that without an actual arrest, a search incident to arrest cannot occur.

We find that the case of Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978) is more instructive.  In Silo, the Court held that the arrival and presence of police at a hospital ward in which Silo was a patient did not constitute an arrest where the police did not communicate to Silo any intention of taking him into custody and did not read Miranda warnings to him until almost an hour after they had seized his clothing.  After Silo admitted himself to a hospital, police responded to a call from two neighbors and found the dead body of Silo’s mother.  Two of the detectives went to the hospital to attempt to interview Silo concerning his mother’s death.  While waiting, they asked the nurse to give them Silo’s personal belongings that he had when he was admitted to the hospital.  The officers saw bloodstains on Silo’s trousers, which matched the victim’s blood and later constituted key circumstantial evidence upon which the prosecution based its case.  Officers then interviewed Silo and read him his Miranda warnings before arresting him.

The key issue in Silo was whether the defendant had been arrested before his clothing was seized.  The Court explained as follows:

In this case, the only pre-seizure actions by the police officers were their arrival at the intensive care ward and their presence there before requesting appellant’s clothing from the nurse.  The officers did not communicate to appellant any intention of taking him into custody.  The reading of the Miranda warnings to appellant did not occur until almost an hour after the police had seized appellant’s clothing.  The arrival and presence of the police at the hospital ward cannot constitute an arrest under the test articulated in Bosurgi.  Therefore, we cannot accept the Commonwealth’s argument that appellant’s clothing was seized incident to an arrest.

Silo, 480 Pa. at 22, 389 A.2d at 65-66.

The following footnote to the case clarifies that, even if officers do have probable cause to arrest, this is not justification for a warrantless search:

The Commonwealth also argues that since the police had probable cause to arrest appellant, they were entitled to his clothing.  Assuming arguendo that probable cause to arrest did exist, there is no legal authority to support this argument.  On the contrary, it has long been established that the mere existence of probable cause furnishes no justification for a warrantless search or seizure.  Chapman v. United States, 365 U.S. 610, 613, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).

 

Id. at 66.

Silo is clear.  It is also consistent with the purpose behind the search incident to arrest exception.  A search incident to an arrest is justified “by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime – things which might easily happen when the weapon or evidence is on the accused’s person or under his immediate control.”  Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777, 780, (1964); Commonwealth v. Brown, 329 Pa.Super. 85, 477 A.2d 1364 (1984).

When an officer has probable cause and places an accused under arrest, he can and should conduct a warrantless search.  When an officer merely has a reasonable suspicion that criminal activity is afoot, the standard is different.  Police officers are only permitted to perform an exterior pat-down of the accused’s person when they feel that the accused is armed and dangerous, as their need for protection and preservation of evidence is not as high as during a formal arrest.  Therefore, the law only permits a lower level of intrusion.  Precedent makes it clear that there is a bright line between these two standards, and the argument “we could have arrested him, but didn’t” does not justify crossing the line between a pat-down for weapons and an actual search of a pocket.

The case at bar is very similar to Silo.  Here, Officer Minnick and Officer Zinda had probable cause to arrest DEFENDANT for the Summary Offense of operating a motor vehicle while in possession of an open container of alcohol.  Rather than arresting DEFENDANT or indicating to him in any way that they intended to take him into custody, they instead conducted a warrantless search of DEFENDANT’s pockets.  We find that the evidence obtained from DEFENDANT was taken prior to his arrest and, therefore, the search of DEFENDANT cannot be considered as incident to arrest.

                    b. Reasonable Suspicion and Officer Safety

Of course, searches can be conducted independent of an arrest if the search is necessary to preserve officer safety:  “If, during the course of a valid investigatory stop, an officer observes unusual and suspicious conduct on the part of the individual which leads him to reasonably believe that the suspect may be armed and dangerous, the officer may conduct a pat-down of the suspect’s outer garments for weapons.”  Commonwealth v. E.M./Hall, 558 Pa. 16, 735 A.2d 654, 659 (Pa. 1999).  “Nothing in Terry [the U.S. Supreme Court case that justified officer safety searches] can be understood to allow…any search [whatsoever] for anything but weapons.”  Commonwealth v. Canning, 402 Pa. Super. 438, 439, 587 A.2d 330, 331 (1991).   As we understand it, “the purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence…” Commonwealth. v. Johnson, 429 Pa. Super. 158, 164, 631 A.2d 1335, 1338-39 (1993), citing Adams v. Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 1922, 32 L. Ed. 2d 612 (1972).

Simply put, we fail to see how DEFENDANT could have been perceived as dangerous after he was handcuffed.  According to the officers, DEFENDANT was visibly shaking and was “combative in [their] efforts to try to conduct the pat-down” (N.T. 11/19/2012 p. 10).  It is for this reason that Officer Minnick handcuffed DEFENDANT.  After this point, however, there is no testimony in the record suggesting that DEFENDANT was dangerous in any way.  For this reason alone, we cannot at this point declare Officer Zinda’s search to be necessary to preserve officer safety.[12]

We do not have to decide today whether a Motion to Suppress would absolutely have been granted.  All we must decide at this point is whether such a motion would be “arguable merit.”  Based upon the record before us, we find that “officer safety” is not an argument that would likely succeed at a suppression motion.  By definition, this causes us to conclude that DEFENDANT’s suppression motion would have “arguable merit.”

                    2.       No Reasonable Basis to Effectuate Petitioner’s Interests                                                                      

           Next, we must determine whether Attorney Judd’s particular course of conduct had a reasonable basis to effectuate DEFENDANT’s interests.  DEFENDANT argues that Attorney Judd never discussed the option of a Motion to Suppress with him.  As such DEFENDANT never knew of this option.  He asserts that he would have opted to pursue suppression had he been given a choice.

After reviewing Attorney Judd’s testimony, we find that she did not articulate a reasonable basis to justify her course of conduct.  At the November 19, 2012 PCRA Hearing, Attorney Judd testified that she did not think the Pretrial Motion would have been legally appropriate and, in her opinion, she should not have to file a frivolous Motion[13].  Nowhere in her testimony does she mention that it was part of a legitimate trial strategy or a means to effectuate DEFENDANT’s interests in any way.  Essentially, Attorney Judd did not file the Pretrial Motion because she did not think it had any merit.  Because we find that the Suppression Motion is a meritorious issue, and because Attorney Judd did not proffer any other reasons for not filing the Motion, we find that DEFENDANT has satisfied this element of his ineffectiveness claim.

                    3.       Reasonable Probability of a Different Outcome

Finally, we must determine whether a reasonable probability exists that, but for counsel’s ineffectiveness, the outcome of the proceeding would have been different.  A mere showing of error by counsel or ineffectiveness of counsel is insufficient to demonstrate a right to such relief; the petitioner must show that he or she was thereby prejudiced.  Commonwealth v. O’Searo, 483 Pa. 286, 396 A.2d 1173 (1978).  In analyzing the prejudice prong of the test for ineffective assistance of counsel during the trial, the postconviction court must examine the trial with the focus not on the outcome, but on whether the error so affected the adversarial balance that the trial was rendered unfair and the verdict rendered suspect.  Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523 (2009).

We note that DEFENDANT was convicted of six counts of possession, all of which were based on the drugs and paraphernalia found as a result of the September 3, 2010 confrontation.  In our September 26, 2011 Opinion, we listed the following pieces of evidence that the Jury used to convict DEFENDANT:

1.       The Defendant possessed several types of controlled substances.

2.       The Defendant possessed three cellular telephones.

3.       The drugs possessed by the Defendant were packaged for delivery.

4.       No drug paraphernalia of the type used to ingest drugs was found        in the Defendant’s possession.

5.       The Defendant possessed an unusually large amount of cocaine          that exceeded the amount that is normally found in the possession of a mere user.

6.       Officer Minnick was qualified as an expert witness. He testified   based upon all of the facts and circumstances presented that he believed the Defendant possessed drugs with the intent to deliver         them.

Without the fruits of the September 3, 2010 illegal search, the only evidence the Commonwealth would have had against DEFENDANT was the three cell phones.  Indeed, we stated in our Opinion that “[i]t may be true that any one of the above factors, by itself, would not justify the Jury’s verdict” (p. 9).  We do not see how, if the Suppression Motion would have succeeded, a jury would have been able to convict him of the crimes for which he was charged.

Because a reasonable probability exists that, but for counsel’s ineffectiveness, the jury would not have been able to convict DEFENDANT, we find that DEFENDANT has satisfied the third element of his ineffectiveness claim.

IV.     Conclusion

Since DEFENDANT has established a claim for ineffective assistance of counsel under the PCRA, we will be granting DEFENDANT’s PCRA Petition.  Via an Order entered simultaneous with this Opinion, we will be returning the Defendant and the Commonwealth to the position they enjoyed at Arraignment.  As such, DEFENDANT will be afforded another opportunity to file and pursue a Pre-Trial Suppression Motion.

In the event that the Commonwealth does not appeal this decision, our intent will be to conduct a status conference with both counsel during March of 2014.  At the status conference, we will establish a schedule leading forward to trial.

 

---