Com. v. Lherison, P.

• Court: Superior Court of Pennsylvania
• Decided: December 27, 2023
• Docket: 1249 MDA 2022
• Status: Unpublished

Opinion

J-S35026-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PATRICK LHERISON : : Appellant : No. 1249 MDA 2022

Appeal from the PCRA Order Entered August 4, 2022 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000572-2017

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: DECEMBER 27, 2023

Patrick Lherison appeals from the order denying his Post Conviction

Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-46. He presents a

layered ineffectiveness claim, arguing prior counsel were ineffective for failing

to argue that the Pennsylvania Constitution provided greater protection from

warrantless searches of motor vehicles than its federal counterpart and that

Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), should be overturned. We

affirm.

Lherison was arrested after controlled substances were found in his

vehicle following a traffic stop. Lherison filed a pretrial motion to suppress

arguing, among other things, that the search of his car was conducted without

a search warrant and without probable cause. See Defendant’s Omnibus Pre-

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S35026-23

Trial Motion, filed Sept. 15, 2011, at ¶ 4(B). In the memorandum in support

of the motion, Lherison noted that previously in Pennsylvania both probable

cause and a search warrant were required to search a vehicle, unless exigent

circumstances existed. See Defendant’s Br. in Support of Omnibus Pre-Trial

Motion, filed Sept. 15, 2011, at 8. However, he then pointed out that in Gary,

which at that time was a recent case, the Pennsylvania Supreme Court

concluded that only probable cause was needed to search a vehicle.

Following a bench trial, the court found Lherison guilty of two counts

each of possession of a controlled substance with the intent to deliver

(“PWID”), intentional possession of a controlled substance, and possession of

drug paraphernalia, and one count each of delivery of a controlled substance

and criminal use of a communication facility.1 Lherison filed a motion in arrest

of judgment and motion for new trial, which the trial court denied.

In March 2018, the trial court sentenced Lherison to an aggregate term

of 11 to 27 years’ incarceration and 16 years’ probation. Lherison filed a

motion to modify the sentence, which the trial court denied. Lherison filed a

timely notice of appeal. In the concise statement of matters complained of on

appeal, Lherison raised, among other issues, whether the trial court erred in

denying the motion to suppress where the evidence seized from his vehicle

was pursuant to a search conducted without probable cause and without a

search warrant and the search and seizure violated the United States and ____________________________________________

1 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), 35 P.S. § 780-

113(a)(3), and 18 Pa.C.S.A. § 7512(a), respectively.

-2- J-S35026-23

Pennsylvania Constitutions’ prohibitions against unreasonable searches and

seizures. Pa.R.A.P. 1925(b) Statement at ¶ 3. This Court affirmed on

September 19, 2019, and, in April 2020, the Pennsylvania Supreme Court

denied allowance of appeal.

In April 2021, Lherison filed the instant timely pro se PCRA petition. The

court appointed counsel. PCRA counsel filed a Turner/Finley2 letter and

petition to withdraw as counsel. Lherison filed objections.

In June 2022, the court vacated the judgment of sentence and amended

the sentence to reflect the “correct RRRI eligibility of [110] months” and

granted credit for time served. Amended Order, filed June 21, 2022.

In July 2022, the court issued notice of its intent to dismiss the PCRA

petition without a hearing. The notice stated that Lherison’s request for relief

was denied, and then immediately states, “As such, NOTICE IS HEREBY

GIVEN, pursuant to Pennsylvania Rule of Criminal Procedure 907, that the

Defendant has the right to respond to this proposed dismissal within twenty

(20) days of the date of this filing.” See Notice of Intention to Dismiss Under

Pennsylvania Rule of Criminal Procedure 907, filed July 8, 2022.

On August 4, 2022, the court denied the PCRA petition. Later that same

day, the court received a letter postmarked July 22, 2022, in which Lherison

requested copies of transcripts so that he could respond to the notice of intent

to dismiss. He asked the court to “bear with [him] in regards to the timeline ____________________________________________

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

-3- J-S35026-23

for response to the motion to dismiss dated July 8, 2022[,] received July 15,

2022.” Letter from Lherison to the Clerk of Court and Trial Judge.

Lherison filed a timely appeal and, in January 2023, the court appointed

new counsel. In the amended concise statement of matters complained of on

appeal, Lherison noted that prior to this Court’s decision affirming the

judgment of sentence, the Pennsylvania Supreme Court granted a petition for

allowance of appeal in Commonwealth v. Alexander,3 where the issue

presented was whether Gary should be overruled as inconsistent with the

protections afforded by the Pennsylvania Constitution. Lherison noted that his

direct appeal counsel filed a petition for allowance of appeal after the Court

granted review in Alexander. However, he did not allege that he was entitled

to greater privacy protections under the Pennsylvania Constitution and that

Gary should be overruled. The 1925(b) statement alleged PCRA and appellate

counsel ineffectiveness for failing to challenge Gary.

Lherison raises the following issues on appeal:

A. Whether the PCRA Court erred and/or abused its discretion where it denied/refused to rule on [Lherison’s] request for leave to amend his PCRA Motion and, therefore, did not address all of the claims raised in [Lherison’s] PCRA Motion/amended PCRA Motion?

B. Did appellate counsel, on direct appeal, render ineffective assistance of counsel in failing [to] engage in research of law and argue before the Superior Court and Supreme Courts of Pennsylvania, in a petition for allowance of appeal, that Article I, § 8 of the Pennsylvania Constitution, provided ____________________________________________

3 Commonwealth v. Alexander, No. 151 EAL 2019 (Pa. filed Sept. 24, 2019).

-4- J-S35026-23

greater protection than its federal counterpart, contrary to Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), a plurality decision, and that the trial court erred in failing to suppress the search and seizure of evidence [Lherison’s] vehicle and contained in bags and a safe located in the front and rear passenger compartments of that vehicle without a search warrant where exigency circumstances did not exist?

Lherison’s Application to Amend Appellant’s Br., at Exh. A at 4.

Lherison first argues the court erred when it dismissed his amended

PCRA petition without providing notice of intent to dismiss pursuant to

Pa.R.Crim.P. 907(1). He claims the court’s notice of intent to dismiss provided

reasons for the intended future dismissal but denied his pro se PCRA petition

outright, claiming the court did not provide notice that he could amend the

motion for the court to consider before dismissal. He claims that in August

2022 “the trial court again denied, by formal order, [Lherison’s] PCRA

[m]otion,” but “by its Notice of Intent, it had effectively denied [Lherison’s]

pro se PCRA [m]otion.” Lherison’s Br. at 19.

Lherison further argues that in July 2022, he mailed a motion seeking

to amend his PCRA petition, which the trial court did not receive until after its

August order dismissing the petition. He states that the PCRA court did not

address his motion to amend in any order.

This claim does not warrant relief. Although the notice of intent to

dismiss stated the claims were denied, it also provided Lherison with 20 days

to respond to the notice and, after the 20 days, the court issued an order

denying the petition. See Notice of Intention to Dismiss Under Pennsylvania

Rule of Criminal Procedure 907, filed July 8, 2022. Furthermore, although both

-5- J-S35026-23

Lherison and the PCRA court mention an amended PCRA petition postmarked

July and received August 4, 2022, there is no such document in the certified

record. The document matching those dates in the record requests additional

time to respond to the Rule 907 notice. It does not assert any amendments

to the PCRA petition or include any attachment with PCRA claims, and no other

document in the record contains amended PCRA claims.4 Because the alleged

amended petition is not in the record, we cannot review the claim the court

erred in its handling of the document. See Commonwealth v. Preston, 904

A.2d 1, 7 (Pa.Super. 2006) (en banc) (stating “if a document is not in the

certified record, the Superior Court may not consider it”).

Lherison next argues that PCRA counsel was ineffective for not asserting

direct appeal counsel’s ineffectiveness in not arguing that the Pennsylvania

Constitution provided greater privacy rights than the United States

Constitution and that Gary should be overruled. He claims appellate counsel

should have engaged in research to determine that a case with a similar issue

was pending before the Pennsylvania Supreme Court and file a petition for

allowance of appeal raising the issue. He argues neither counsel had a

reasonable basis for failing to raise the arguments and that he was prejudiced.

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

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v. ____________________________________________

4 The PCRA court states that the claims raised in the document mirrored those

raised in the PCRA petition and response to the Turner/Finley letter.

-6- J-S35026-23

Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019) (citation omitted). To

prevail on an ineffective assistance of counsel claim, the petitioner must

establish: “(1) his underlying claim is of arguable merit; (2) counsel had no

reasonable basis for his action or inaction; and (3) the petitioner suffered

actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311

(Pa. 2014). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Commonwealth v.

Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011) (quoting Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)). “The failure to prove any one

of the three [ineffectiveness] prongs results in the failure of petitioner’s

claim.” Id. (quoting Rivera, 10 A.3d at 1279). “To establish the third,

prejudice prong, the petitioner must show that there is a reasonable

probability that the outcome of the proceedings would have been different but

for counsel’s ineffectiveness.” Commonwealth v. Chmiel, 30 A.3d 1111,

1127-28 (Pa. 2011). Counsel will not be deemed ineffective “for failing to

anticipate a change in the law.” Commonwealth v. Rollins, 738 A.2d 435,

451 (Pa. 1999).

In Gary, a three-Justice plurality of the Pennsylvania Supreme Court

declared that Article I, Section 8 of the Pennsylvania Constitution did not

provide greater protection regarding warrantless searches of motor vehicles

than its federal counterpart and the “law governing warrantless searches of

motor vehicles [was] coextensive with federal law under the Fourth

-7- J-S35026-23

Amendment” and therefore required only probable cause. 91 A.3d at 138. A

fourth Justice concurred.

Five days after this Court affirmed Lherison’s judgment of sentence, on

September 24, 2019, the Pennsylvania Supreme Court granted a petition for

allowance of appeal to address whether to overrule or limit Gary as

“inconsistent with privacy protections under Article I, § 8, and this Court’s

decisions protecting privacy through the warrant requirement[.]”

Commonwealth v. Alexander, Order, 151 EAL 2019, 218 A.3d 380 (Pa. filed

Sept. 24, 2019). After review, the Court held in December 2020 that the

Pennsylvania Constitution allows warrantless searches of vehicles only where

there is both probable cause and exigent circumstances. Commonwealth v.

Alexander, 243 A.3d 177,181 (Pa. 2020).

Nonetheless, Alexander is “not automatically” retroactive.

Commonwealth v. Heidelberg, 267 A.3d 492, 502 (Pa. Super. 2021) (en

banc). To have retroactive effect, the defendant must have “preserved [an

Alexander claim] at all stages of adjudication up to and including the direct

appeal” by challenging both probable cause and exigency. Id. at 503 (citation

and quotation marks omitted).

At the time of Lherison’s trial in 2018 and appeal in 2019, Gary was the

prevailing law in Pennsylvania. Indeed, the Supreme Court did not even grant

review in Alexander until after this Court had rendered its decision in

Lherison’s direct appeal. Counsel was not required to anticipate a change in

law and therefore, was not ineffective for failing to raise the issue. See

-8- J-S35026-23

Rollins, 738 A.2d at 451. As a result, PCRA counsel cannot be found

ineffective for failing to challenge direct appeal counsel’s performance on this

basis. Furthermore, Lherison’s trial counsel did not preserve an Alexander

claim in the trial court, and Lherison has not claimed trial counsel was

ineffective. Lherison has thus not presented a properly layered ineffectiveness

claim that could afford him relief.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 12/27/2023

-9-