Commonwealth v. Clark

634 A.2d 254, 430 Pa. Super. 270, 1993 Pa. Super. LEXIS 3741
CourtSuperior Court of Pennsylvania
DecidedNovember 15, 1993
DocketNo. 360
StatusPublished
Cited by3 cases

This text of 634 A.2d 254 (Commonwealth v. Clark) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Clark, 634 A.2d 254, 430 Pa. Super. 270, 1993 Pa. Super. LEXIS 3741 (Pa. Ct. App. 1993).

Opinion

CERCONE, Judge.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Allegheny County, dated January 15, 1992, after appellant was convicted of possession of a controlled substance,1 possession of a controlled substance with intent to deliver,2 and possession of drug paraphernalia.3 We affirm.

Appellant was arrested on the aforementioned charges in connection with a Pittsburgh police investigation which targeted him as a drug dealer. Pittsburgh narcotics detectives located appellant conducting a drug sale in the city’s Hill District. Police subsequently arrested appellant. A jury was impaneled for trial on September 9, 1991. The following day, the jury adjudged appellant guilty of all the charges. On January 15, 1992, the trial court sentenced appellant. This timely appeal followed in which appellant raises two issues for our review:

1. Was counsel ineffective for failing to file a motion to suppress the evidence alleging that the search was without probable cause;
2. was counsel ineffective for failing to file a motion in arrest of judgment alleging that there was insufficient [274]*274evidence to establish that Mr. Clark possessed heroin with the intent to deliver it?

We shall address each of these claims.

Our standard of review for allegations of ineffective assistance of counsel is well-established and quite narrow. Ineffectiveness claims are subject to a three-part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his or her client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. Commonwealth v. Tavares, 382 Pa.Super. 317, 321, 555 A.2d 199, 201 (1989), allocatur denied, 524 Pa. 619, 571 A.2d 382 (1989). Prejudice in the context of a claim of ineffective assistance of counsel is determined by an evaluation of whether “but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.” Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987). The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Commonwealth v. Smith, 380 Pa.Super. 619, 624, 552 A.2d 1053, 1056 (1989), allocatur denied, 525 Pa. 581, 575 A.2d 112 (1990). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Cook, 383 Pa.Super. 615, 623, 557 A.2d 421, 425 (1989). Moreover, in making assertions of ineffectiveness, a claimant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective since the appellate courts will not consider such claims in a vacuum. Commonwealth v. Durst, 522 Pa. 2, 4, 559 A.2d 504, 505 (1989).

In his first claim, appellant argues that trial counsel was ineffective for failing to file a motion to suppress the physical evidence in this case. In this regard he avers that the police did not have probable cause to arrest him. As we set forth in our decision in Commonwealth v. Frank, 407 Pa.Super. 500, 595 A.2d 1258 (1991),

[275]*275A police officer may arrest without a warrant where there is probable cause to believe that a felony has been committed and that the arrestee is the felon. Probable cause exists where the facts and circumstances within the knowledge of the officer are reasonably trustworthy and sufficient to warrant a person of reasonable caution in believing that the arrestee has committed the offense. [Commonwealth v. Chase, 394 Pa.Super. 168, 171, 575 A.2d 574, 575 (1990) ], citing Commonwealth v. Travaglia, 502 Pa. 474, 484, 467 A.2d 288, 292 (1983). Furthermore, the standard of probable cause must be applied to the totality of the circumstances facing the police. Thus, “when we examine a particular situation to determine if probable cause exists, we consider all factors and their total effect, and do not concentrate on each individual element.... We also focus on the circumstances as seen through the eyes of a trained officer, and do not view the situation as an average citizen might.... Finally, we must remember that in dealing with questions of probable cause, we are not dealing in certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond a reasonable doubt’ standard which we apply in determining guilt or innocence at trial.” Chase, supra, 394 Pa.Super. at 172, 575 A.2d at 575-76 (emphasis in original).

Commonwealth v. Frank, 407 Pa.Super. at 505-06, 595 A.2d at 1261.

When police observe citizens engaged in seemingly suspicious transactions on public streets, the determination of whether probable cause exists can be a difficult one. Commonwealth v. Agnew, 411 Pa.Super. 63, 76, 600 A.2d 1265, 1272 (1991). Moreover, not all commercial transactions involving unidentified property give rise to probable cause to arrest. Id. (quoting Commonwealth v. Lawson, 454 Pa. 23, 28-29, 309 A.2d 391, 394 (1973). Nonetheless, probable cause to arrest may exist where the police find a known drug dealer, in an area known for its high volume of drug transactions, conducting an exchange indicative of a drug transaction. Common[276]*276wealth v. Frank, 407 Pa.Super. at 509-10, 595 A.2d at 1263; Accord Commonwealth v. Burnside, 425 Pa.Super. 425, 625 A.2d 678 (1993).

In the case sub judice, the Commonwealth adduced the following evidence: On September 25,1990, City of Pittsburgh Police Officer Charles Provident, was part of a plain-clothes narcotics detail which was assigned to patrol an area of the Hill District of Pittsburgh known for its high volume of drug traffic. N.T. 9/9/91 at 26, 40. Officer Provident indicated that in his three and one-half year tenure as a police officer, he observed over 700 drug transactions. N.T. 9/9/91 at 59. Officer Provident was working with three other policemen in the investigation which specifically targeted appellant as a drug dealer. N.T. 9/9/91 at 51.

When Officer Provident, who was driving his patrol car, located appellant, he (appellant) was standing with an unknown individual. Officer Provident observed the unknown individual hand appellant an undetermined amount of United States currency. N.T. 9/9/91 at 29.

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634 A.2d 254, 430 Pa. Super. 270, 1993 Pa. Super. LEXIS 3741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-clark-pasuperct-1993.