Commonwealth v. Moore

1

COMMONWEALTH OF PENNSYLVANIA v. WILLIAM MOORE III Appellant

No. 567 WDA 2023

No. J-S10044-24

Superior Court of Pennsylvania

May 8, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered April 18, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s) CP-02-CR-0000599-2019

BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM

LANE J.

William Moore, III ("Moore") appeals from the order dismissing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA").^[1] We affirm.

This Court previously summarized the relevant factual and procedural history as follows:

Agent Richard Castagna testified that he was conducting mobile surveillance on November 27, 2018 . . . in the City of Clairton due to a recent rash of shooting incidents and drug complaints. At the time of [Moore]'s arrest, Agent Castagna was a detective for the City of Clairton Police Department. . . . While he was conducting surveillance, he observed a black automobile driving up Miller Avenue and turn onto Farnsworth Avenue without its turn signal activated. Agent Castagna then initiated a traffic stop of the vehicle . .. Prior to actually stopping the vehicle, Agent Castagna observed [Moore] place a backpack (later described as a blue Kenneth Cole Reaction bookbag) behind the driver's seat. Agent Castagna approached the passenger side of the vehicle and Officer Tallie approached the driver's side. Both law enforcement officers smelled a strong odor of marijuana emanating from the vehicle. Both occupants of the vehicle were removed from the vehicle and patted down for officers' safety. The driver, Kelsey Gori, was cooperative and admitted that she had been smoking marijuana. She removed a baggie of marijuana from her bra and gave it to Officer Tallie. The passenger in the vehicle was [Moore]. Upon being removed from the vehicle and being patted down, [Moore] refused to identify himself. The officers began searching the vehicle. The officers also observed marijuana "roaches," or burnt marijuana cigarettes, in the vehicle. Soon, [Moore]'s mother and brother arrived on the scene of the traffic stop. [Moore] started to walk away from the site of the traffic stop. He was ordered not to leave. [Moore] became irate and began yelling at the police officers that they could not search his backpack. He told the officers at least three times that they could not search the backpack. [Moore]'s mother also yelled at the police officers that they could not search the backpack. [Moore]'s mother was also detained at the scene. As the officers approached the backpack, [Moore] left the scene of the traffic stop and entered a residence [on] Madison Avenue.

Officer Tallie then searched the backpack. Inside the backpack was a .45 caliber Springfield Armory pistol, marijuana, ammunition, . . . and ripped baggies used for drug sales.

Trial Court Opinion, 7/15/20, at 1-3. The trial court also concluded that the backpack contained "a knife with a 14-inch blade[.]" Id. at 3.

[Moore] filed a motion to suppress, and . . . the trial court conducted a hearing on the suppression motion. After accepting briefs and hearing additional oral argument, the trial court denied [Moore's] suppression motion on October 16, 2019. The trial court concluded that officers had probable cause to search Ms. Gori's vehicle because "Agent Castagna and Officer Tallie both smelled marijuana emanating from the vehicle[,] observed 'roaches' of marijuana in the vehicle[,]" and had taken possession of marijuana from Ms. Gori that she had concealed on her person. Trial Court Opinion, 7/15/20, at 5. The trial court further determined that the probable cause to search the vehicle also authorized the search of [Moore's] backpack within the car, but that, in any event, there existed independent probable cause to search the bag based upon [Moore's] actions at the scene, including his uncooperativeness and demands that the bag not be searched. Id.

[Moore] proceeded to a stipulated bench trial, where he was convicted of [persons not to possess a firearm, violating the Uniform Firearms Act, possession of drug paraphernalia, and possession of an instrument of crime ("PIC")]. On March 10, 2020, the trial court [imposed an prison term of five to ten years], followed by 3 years of probation, on the persons not to possess. . . charge. No further punishment was imposed on his remaining convictions. [Moore then filed a direct appeal.]

Commonwealth v. Moore, 263 A.3d 1193, 1196-97 (Pa. Super. 2021) (footnotes omitted); appeal denied, 278 A.3d 857 (Pa. 2022).

Notably, at the time Moore filed his suppression motion, the warrantless search of the vehicle was subject to our Supreme Court's ruling in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (opinion announcing judgment of the court), which held that the search and seizure provision of Article I, Section 8 of the Pennsylvania Constitution provides no greater protection than does the Fourth Amendment to the United States Constitution with regard to warrantless searches of automobiles. See id. at 125. The Gary plurality thus concluded that, in line with United States Supreme Court decisions interpreting the Fourth Amendment, the only prerequisite for a warrantless search of a motor vehicle was probable cause to search, with no exigency required beyond the inherent mobility of a motor vehicle. See id. at 138.

However, while Moore's direct appeal was pending in this Court, our Supreme Court issued its ruling in Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), which overruled its decision in Gary. In Alexander, our Supreme Court concluded that the Pennsylvania Constitution affords greater protection to our citizens than the Fourth Amendment to the United States Constitution, noting that "[t]he long history of Article I, Section 8 and its heightened privacy protections do not permit us to carry forward a bright-line rule that gives short shrift to citizens' privacy rights." Id. at 207-08. Our Supreme Court thereby re-affirmed and reinstated the pre-Gary line of cases that required police to have both probable cause and exigent circumstances before conducting a warrantless search of an automobile. See id. at 181, 201, 207-09. Our Supreme Court instructed that courts "will have to decide, just as they did pre-Gary, whether exigent circumstances justified warrantless searches in discrete scenarios, with a focus on the particular facts." Id. at 208.

Moore's direct appeal counsel attempted to invoke Alexander for the first time in his appellate reply brief. However, this Court determined that the issue had not been preserved for appellate review. This Court additionally determined that the evidence was insufficient to support Moore's conviction for PIC and vacated that conviction. However, this Court affirmed Moore's remaining convictions and the judgment of sentence, and our Supreme Court denied allowance of appeal on May 18, 2022. See Moore, 263 A.3d 1193; appeal denied, 278 A.3d 857. Moore did not seek review in the United States Supreme Court.

On June 14, 2022, Moore filed the instant timely pro se PCRA petition.^[2]The PCRA court appointed counsel who filed an amended petition. The PCRA court issued a notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. Moore filed a response in opposition to the Rule 907 notice. On April 18, 2023, the PCRA court entered an order dismissing the petition. Moore filed a timely notice of appeal, and both he and the PCRA court complied with Rule 1925.

Moore raises the following issues for our review:

1. The PCRA court erred in denying relief because Moore's case was pending on direct appeal when the Supreme Court entered its decision in . . . Alexander.

2. The PCRA court erred in denying relief because prior trial and appellate counsel provided ineffective assistance for failing to preserve the issue that the warrantless search of Moore's backpack was not supported by exigent circumstances, particularly because the automobile exception under Gary was under review by the Supreme Court before Moore's judgment of sentence became final.

Moore's Brief at 5 (unnecessary capitalization omitted).

Our standard of review of an order dismissing a PCRA petition is well-settled:

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).

Under the PCRA, a claim that has been previously litigated is not cognizable for collateral relief. See 42 Pa.C.S.A. § 9544(a)(2). The PCRA defines a matter as having been previously litigated when "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." Id.; see also Commonwealth v. Spotz, 18 A.3d 244, 281 (Pa. 2011) (recognizing that a claim that has been previously litigated is not cognizable under the PCRA).

In his first issue, Moore contends that, because Alexander was decided while his direct appeal was pending and before his judgment of sentence became final,...