Com. v. Coley, R. (memorandum)

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J-S19036-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. RASHAN D. COLEY, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1332 MDA 2013 Appeal from the PCRA Order entered on June 18, 2013 in the Court of Common Pleas of Lackawanna County, Criminal Division, No. CP-35-CR-0001318-2009 BEFORE: PANELLA, OLSON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED APRIL 30, 2014 appeals, pro se, from the Order dismissing his Petition for relief filed pursuant to the Post Conviction Relief Act See 42 Pa.C.S.A. ยงยง 9541-9546. We affirm. This Court previously set forth the history underlying this appeal as follows: On December 15, 2009, following a jury trial, [Coley] was The charge arose on June 2, 2008, when Pennsylvania State [hereinafter refe passenger[. A]fter securing a search warrant for the J-S19036-14 vehicle, [Trooper Horan] discovered 4,529 bags of heroin.[1] On March 31, 2010, [Coley] was sentenced to seven to fourteen years[ of] incarceration. No post-sentence motions this Court subsequently quashed the appeal as untimely filed. Commonwealth v. Coley, No. 765 MDA 2010 (Judgment Order) (Pa. Super. filed December 7, 2010). On February 3, 2011, [Coley] filed a pro se PCRA [P]etition alleging ineffective assistance of [trial] counsel for failing to file a timely direct appeal and requesting reinstatement of his appeal rights nunc pro tunc. On February 17, 2011, the PCRA court nunc pro tunc]. Commonwealth v. Coley, 589 MDA 2011 (Pa. Super. filed December 16, 2011) (unpublished memorandum at 1-2) (footnote added). On appeal, this of Pennsylvania denied allowance of appeal. See id., appeal denied, 47 A.3d 844 (Pa. 2012). 1 Relevant to the instant appeal, neither Coley nor the operator of the vehicle, Ghana Harper, consented to the search of the vehicle, and both men stated to Trooper Horan that a third party owned the vehicle. Prior to the search of the vehicle, Trooper Horan radioed a police dispatcher and requested that a police officer with a K-9 police dog be sent to the scene to and his Knded to the scene, and K-9 Bruin alerted on several places on the exterior of the vehicle described his training and certification as a K-9 handler, and stated that K-9 Bruin was certified as a police K-9 dog after K-9 Bruin and Officer Forese had completed extensive training at a Police K-9 Academy. Finally, Trooper barracks following the traffic stop of the vehicle, he determined that the MVR dashboard camera was not operational and did not record the traffic stop. -2- J-S19036-14 On June 29, 2012, Coley timely filed a pro se PCRA Petition. Following the filing of the PCRA Petition, the PCRA court appointed Kurt Lynott, Esquire Turner/Finley2 - pro se PCRA Petition lacked merit.3 Attorney Lynott also filed a granted Attorney Lynott permission to withdraw as counsel. On April 30, 2013, the PCRA court gave Coley Notice of its intent to dismiss his PCRA Petition without a hearing, pursuant to Pennsylvania Rule of Criminal Procedure 907. Coley filed a pro se se and determining that the claims raised therein did not entitle Coley to relief, the PCRA court entered an Order on June 18, pro se Notice of Appeal. On appeal, Coley presents the following issues for our review: I. Whether the [C]ommonwealth failed to prove beyond a reasonable doubt that [Coley] had actual or constructive possession of a controlled substance? 2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 3 Additionally, Coley filed a response challenging Attorney Lynott -3- -merit J-S19036-14 II. counsel for failure to investigate, research, obtain, and present [] valuable information? Brief for Appellant at 4. Coley first argues that his conviction of PWID cannot stand because the Commonwealth failed to prove beyond a reasonable doubt that he was in actual or constructive possession of the narcotics seized from the vehicle. Id. at 8-9. conviction. However, such a claim is not cognizable in a PCRA petition, as it must be raised on direct appeal. See Commonwealth v. Price, 876 A.2d distinct from a collateral claim that his trial counsel was ineffective for failing to present a challenge to the sufficiency of the evidence on direct appeal, and Coley does not raise such an ineffectiveness claim on appeal. See id. (stating that challenges to the sufficiency of the evidence, without any ineffectiveness of counsel analysis, are not cognizable under the PCRA). Accordingly, we cannot r Coley next argues that the PCRA court erred by dismissing his PCRA Petition because he pled and proved that his trial counsel was ineffective for Brief for Appellant at 19. -4- J-S19036-14 The applicable standards of review regarding ineffectiveness claims and dismissal of a PCRA petition are as follows: petition for post[-]conviction relief is well-settled: We must disturbed unless there is no support for the findings in the certified record. *** It is well-established that counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves all of the following: (1) the underlying legal claim is of any objectively reasonable basis designed to effectuate his error. The PCRA court may deny an ineffectiveness claim if the Moreover, a PCRA petitioner bears the burden of demonstrating Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations omitted). Coley first argues that trial counsel was ineffective for failing to interview or obtain a statement from the owner of the vehicle. Brief for Appellant at 19. Coley failed to raise this claim in either his PCRA Petition or his Rule 907 Response. Accordingly, this claim is waived. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the first time on appeal). Next Coley asserts that trial counsel was ineffective for failing to object at trial that neither Officer Forese nor his police dog, K-9 Bruin, had the -5- J-S19036-14 requisite certifications to conduct a valid canine sniff for narcotics. Brief for the canine sniff of the vehicle was therefore inadmissible at trial and trial counsel should have objected to the admission of his testimony. Id. at 22. We disagree. At trial, Officer Forese presented testimony regarding both his certification as a police K-9 handler, as well as K-9 B and certification as a police K-9 dog. N.T., 12/15/09, at 138-43. fails because (1) the underlying legal claim lacks arguable merit; and (2) testimony. See Franklin, supra (stating that in order to prevail on an ineffectiveness claim, a PCRA petitioner must plead and prove that there is arguable merit to the underlying claim and that lacked any objectively reasonable basis designed to effectuate his or her ). Finally, Coley argues that trial counsel was ineffective because he MVR dashboard camera was not operational and did not record the traffic stop. Brief for Appellant at 23- -6- J-S19036-14 & video evidence to transcribe the events as they took place[] left [Coley] at Id. at 23 (parentheses omitted); oper [Horan] inadvertently violated see also id. Although the MVR dashboard camera did not record the traffic stop, n without the admission of a contemporaneous audio/video recording of the testimony regarding the traffic stop based upon the absence of an audio/video recording of the stop. See Franklin, supra. Response, we conclude that the PCRA court properly determined that none of these claims entitles Coley to collateral relief. Accordingly, because we conclude that the PCRA court neither abused Petition, we affirm the Order on appeal. Order affirmed. -7- J-S19036-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/30/2014 -8-

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