Com. v. Alexander, J.

• Court: Superior Court of Pennsylvania
• Decided: June 25, 2019
• Docket: 1283 WDA 2018
• Status: Unpublished

Opinion

J-S20026-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHNTAE LAVELL ALEXANDER : : Appellant : No. 1283 WDA 2018

Appeal from the PCRA Order Entered August 13, 2018 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000118-2015

BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 25, 2019

Johntae Lavell Alexander appeals from the denial of his request for relief

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He

maintains that the trial court erred in denying his PCRA petition that raised

claims of ineffective assistance of counsel (“IAC”). We affirm.

The Commonwealth charged Alexander with Possession with Intent to

Deliver (PWID)1 along with other narcotics related offenses. Alexander filed a

motion to suppress challenging the search and the validity of his consent to

the search. At the hearing on the motion, the Commonwealth presented the

following evidence from Sergeant Matthew Fischer.

Sergeant Fischer received information from a confidential informant

(“CI”) that Alexander “would be traveling back to Erie, PA from the State of

____________________________________________

1 35 P.S. § 780-113(a)(30). J-S20026-19

Michigan carrying a quantity of heroin.” N.T., Suppression Hearing, 6/3/15, at

4. Prior to this conversation, Sergeant Fischer had never used this CI. Id. at

22. The CI told Sergeant Fischer that in his past experience “any time that Mr.

Alexander did go to the Michigan area, he would return with a quantity of

heroin.” Id. at 6. The CI gave the specific date that Alexander would be

returning by train, “described [Alexander] physically,” and knew what kind of

vehicle he drove, a white Mercedes. Id. at 5. Additionally, the CI told Sergeant

Fischer where he believed Alexander lived and the person living with

Alexander. Id. at 6.

Sergeant Fischer knew Alexander prior to receiving the information from

the informant. Id. at 19. He also knew that Alexander owned a white

Mercedes. Id. at 5-6. Sergeant Fischer arrived at the train station on the date

that the CI gave and observed Alexander leaving the train station.

Q [Assistant District Attorney (“ADA”)]: Okay. All right. Did you go to the train station on October 4th of 2014?

A [Sergeant Fischer]: I did.

*** Q: Okay. Was the train on time?

A: No, it was not.

*** Q: Okay. Did you leave and come back to the train station.

A: I did.

*** Q: . . . Okay, did the train that you were waiting for eventually arrive?

-2- J-S20026-19

A: It did.

Q: Okay. And when the train arrived, where were you at?

A: I was standing out in front of the train station where we were actually watching the tracks to physically see the train arrive.

Q: Okay. Did you see the passengers exit the train?

A: I did not, no.

Q: Okay. Did you see - - are you familiar with what Mr. Alexander looks like?

A: Yes.

Q: Did you see Mr. Alexander get off the train or in the train station area?

A: I saw him approach the stairwell where I was stationed at the bottom of.

Id. at 6-7, 9-10.

When Alexander saw Sergeant Fischer, he “walked around this building

eventually coming back to the south side of the stairs - - or south side of this

small building where there was a small freight elevator.” Id. at 10. Sergeant

Fischer and fellow officers followed Alexander and found him “hiding back in

this cubbyhole where this freight elevator is.” Id. Following a consent to

search, Sergeant Fischer recovered heroin from Alexander’s groin area. Id. at

14, 17-18.

The trial court denied the motion to suppress and Alexander

subsequently pled guilty to PWID. The trial court sentenced him to five to ten

years’ incarceration. He did not file a post-sentence motion or direct appeal.

-3- J-S20026-19

In June 2016, Alexander filed a timely PCRA petition, alleging claims of

IAC. In part he claimed that trial counsel was ineffective for failing to challenge

the lawfulness of the stop. See Commonwealth v. Alexander, No. 1631

WDA 2016 (Pa.Super. 2017) (unpublished memorandum). The PCRA court

denied the petition without an evidentiary hearing. Alexander appealed and

this Court reversed the order. We remanded the case, concluding that “[t]he

record confirms [Alexander’s] assertion that his counsel failed to ‘fully litigate’

and ‘really delve into the reliability of the tip and the circumstances under

which it was received.’” Id. at 16. We ordered that the trial court hold an

evidentiary hearing, “at which the parties shall address all three prongs of the

ineffective assistance test stated in [Commonwealth v.] Fulton [, 830 A.2d

567, 572 (Pa. 2003)].” Id. at 17.

Upon remand, the PCRA court held two evidentiary hearings. Trial

counsel, David Ridge, Esquire, and Alexander testified at the first hearing and

Sergeant Fischer and Lieutenant Jonathan Nolan testified at the second

hearing. Regarding the issue of the lawfulness of the stop, “Attorney Ridge

could not recall why he did not pursue this issue, even after the trial court

gave him time in which to file a supplement to his Motion to Suppress, in order

to raise the issue of the validity of [Alexander’s] initial stop at the train

station.” PCRA Court Opinion (“PCRA Ct. Op.”), filed 8/13/18, at 8.

Sergeant Fischer testified similar to his testimony at the suppression

hearing with the exception of some additional details.

-4- J-S20026-19

Q [ADA]: All right. And other than that information that the CI provided to you, what other information [did] you receive from the CI regarding Mr. Alexander?

A [Sergeant Fischer]: He gave us some biographical information as to his size, age, his hair style, type of vehicle he was driving, when he would be arriving.

*** Q [PCRA Counsel]: All right. And this confidential informant was able to describe for you, I think you talked about a physical description of a vehicle that matched something that you knew about Mr. Alexander?

A: That’s correct.

Q: Okay. Your prior dealings with Mr. Alexander, I think your testimony was, was two years prior to October 4th, 2014, correct?

A: Yes, ma’am.

N.T., Evidentiary Hearing, 1/23/18, at 7, 23.

The PCRA court denied Alexander’s IAC claim and concluded that the

claim lacked arguable merit because “a motion to suppress on the basis of

[Alexander’s] initial stop at the trial station would have been denied on the

basis of [Commonwealth v.] Brown [, 996 A.2d 473 (Pa. 2010)] and

[Alabama v.] White [, 496 U.S. 325 (1990)]. PCRA Ct. Op. at 12. This timely

appeal followed.

Alexander raises one issue on appeal: “Did the PCRA court err when it

determined that [Alexander] had not pleaded and proven his claim of

ineffectiveness, namely, that the trial counsel’s failure to challenge the

lawfulness of the stop caused petitioner to enter an unknowing, involuntary,

and unintelligent plea?” Alexander’s Br. at 6.

-5- J-S20026-19

Our review of the denial of a PCRA petition is limited “to whether the

PCRA court’s determination is supported by evidence of record and whether it

is free of legal error.” Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super.

2018) (quoting Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.Super.

2018)). “We review the PCRA court’s legal conclusions de novo.” Id.

“Counsel is presumed to have been effective.” Commonwealth v.

Andrews, 158 A.3d 1260, 1263 (Pa.Super. 2017). Thus, a petitioner

challenging the effectiveness of counsel must establish all of the following:

“(1) his underlying claim is of arguable merit; (2) the particular course of

conduct pursued by counsel did not have some reasonable basis designed to

effectuate his interests; and (3) but for counsel’s ineffectiveness, there is a

reasonable probability that the outcome of the challenged proceedings would

have been different.” Fulton, 830 A.2d at 572. The petitioner must establish

all of the above prongs or the ineffectiveness claim fails. See Commonwealth

v. Dennis, 950 A.2d 945, 954 (Pa. 2008) (stating that failure to satisfy one

prong “requires rejection of the ineffectiveness claim”).

In the instant case, the parties agree that Alexander was subjected to

an investigative detention and therefore the police officers needed to have

had a “reasonable suspicion that criminal activity was afoot.” See Brown, 966

A.2d at 477. “Reasonable suspicion is a less stringent standard than probable

cause necessary to effectuate a warrantless arrest, and depends on the

information possessed by police and its degree of reliability in the totality of

the circumstances.” Id. Where an investigative detention is based on

-6- J-S20026-19

information from a known informant, it “may carry sufficient ‘indicia of

reliability’ to justify an investigative detention.” Id. (citation omitted).

Here, the PCRA court concluded that Alexander failed to establish that

his claim had arguable merit. In support of this conclusion, it stated that this

case was on point with Brown and therefore no relief was due. See PCRA Ct.

Op. at 8. The Court in Brown held that an officer had reasonable suspicion

to stop Brown based on a tip from a known informant. 996 A.2d at 479. The

informant told the police officer “that Brown would be going to a particular

area, around a particular time, in a specific make of vehicle, and would be

dealing prescription drugs.” Id. at 478-79. Our Supreme Court concluded that

this information was “corroborated through police investigation” and thereby

“gave rise to reasonable suspicion sufficient to warrant an investigative

detention.” Id. at 479.

Alexander argues that the informant’s tip was not sufficient to justify his

investigative detention. See Alexander’s Br. at 36. He maintains that “Brown

is distinguishable” from the instant case because Sergeant Fischer never used

the CI before and at the evidentiary hearing Sergeant Fischer did not testify

“that the informant predicted [Alexander] would return with drugs.” Id. at 37.

He also claims that Sergeant Fischer “did not corroborate some of the

biographical information provided to him by the informant.” Id. Specifically,

whether or not Alexander resided at the address the informant gave. See id.

at 37-38 (noting that Sergeant Fischer “testified that, in his past experience

-7- J-S20026-19

with [Alexander] he did not recall him living” at the address given by

informant).

We agree that unlike Brown, the informant here was never used

previously. However, Brown is instructive and otherwise similar to the instant

case. Similar to Brown, “[t]he informant in this case was not anonymous,

and the tip consisted of more than mere description.” Brown, 996 A.2d at

479. The tip alerted officers to criminal activity by Alexander on a particular

day and at a particular place. Additionally, officers conducted an independent

investigation to corroborate the information given. Sergeant Fischer was

aware at the time that he spoke with the informant that Alexander drove a

white Mercedes. He also went to the train station, waited for the train

returning from Michigan, and observed Alexander leaving the train station.2

Further, when Alexander saw the officers at the train station, he turned away

and hid in a freight elevator which indicated his consciousness of his guilt.

See Commonwealth v. Smith, 146 A.3d 257, 263 (Pa.Super. 2016) (stating

flight is consciousness of guilt). The facts collectively were sufficient to give

officers reasonable suspicion to stop Alexander. As such, his claim fails as it

lacks arguable merit and we affirm the PCRA court’s order denying his PCRA

petition. See Brown, 996 A.2d 479; see also Dennis, 950 A.2d at 954.

Order affirmed. ____________________________________________

2 We are unpersuaded by Alexander’s argument regarding Sergeant Fischer’s omission at the evidentiary hearing in reference to the heroin as he testified at the suppression hearing that the CI told him that Alexander would be returning with heroin. See N.T., Suppression Hearing at 4.

-8- J-S20026-19

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/25/2019

-9-