Com. v. Bayete, C. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHIKUYO BAYETE
Appellant No. 1150 WDA 2014
Appeal from the PCRA Order July 2, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000473-2012
BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 16, 2015
Appellant Chikuyo Bayete appeals, pro se, from the order entered in
the Erie County Court of Common Pleas, dismissing his petition for relief
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
Korrine Nicole Carson (“Korrine”), Jordan Tyler Tracy (“Jordan”), and Jarod
Tracy (“Jarod”) testified that on November 21, 2011, they were socializing in
Jordan’s apartment around 2:00 a.m. N.T., 9/12/12 at 17, 19. After
smoking some marijuana, the three decided to leave the apartment to get
something to eat. Id. at 20. Korrine opened the door and encountered two
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1
42 Pa.C.S. §§ 9541-9546.
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armed, masked men, wearing dark clothing, one of whom pushed her to the
floor and tased her. Id. at 20-22. One of the men pistol-whipped and tased
Jordan. Id. at 43, 44. According to Jordan, one of the men requested that
the music be turned up, and it was turned up. Id. at 45. According to
Jarod, one of the men pointed a gun at his head and asked him to turn the
T.V. off, and he turned off the T.V. Id. at 76. Jarod then ran out of the
apartment and went to a neighbor’s house. Id. at 78. One of the men
pointed a gun at Jordan and told him he wanted his safe.2 Id. at 46-47.
The armed men took the safe and left the apartment. Id. at 48.
Jordan heard a gunshot and looked outside. Id. at 51. He saw one of
the two armed men, later identified as Appellant, dragging the other armed
man, who had been shot and was later identified as Appellant’s brother,
Shanti Bayete. Id. at 51, 86. Appellant then lifted his mask and Jordan
recognized him as the older brother of his friend, Jeremiah. Id. at 51, 56.
Appellant then ran down the street. Id. at 54.
Patrol Officer James Cousins responded to the scene for a disturbance
of one shot heard. Id. at 84. Officer Cousins encountered Jordan and
Korrine by the body, claiming that they had been robbed by the victim and
that they could identify the other robber. Id. at 84-87. Officer Nick Stadler
and Officer White also responded to the scene and encountered Appellant
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2
$3000.00 along with marijuana were later found in the safe.
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running East from the scene, wearing all black, with blood on him, toward
their patrol car. Id. at 99, 101, 102. The officers apprehended Appellant
and brought him to the crime scene, where Jordan, Jarod and Korrine
identified Appellant as one of the robbers. Id. at 90.
According to Appellant, his brother had gone to Jordan’s apartment to
purchase marijuana. N.T., 9/13/12, at 5. When his brother did not return,
Appellant left his apartment to find him. Id. at 7. He found his brother
lying in the street, bleeding, and tried to move him. Id. at 9. Appellant
then ran to find the police when he was apprehended by them. Id. at 11.
On September 13, 2012, a jury found Appellant guilty of robbery,3
criminal conspiracy/robbery,4 theft by unlawful taking,5 simple assault,6
possessing an instrument of crime (“PIC”),7 and burglary,8 relating to the
home invasion. On November 26, 2012, the court imposed consecutive
sentences of 84-168 months’ incarceration for robbery, 72-144 months’
incarceration for criminal conspiracy/robbery, 12-24 months’ incarceration
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3
18 Pa.C.S. § 3701(a)(1)(ii).
4
18 Pa.C.S. § 903/3710(a)(1)(ii).
5
18 Pa.C.S. § 3921(a).
6
18 Pa.C.S. § 2701(a)(1).
7
18 Pa.C.S. § 907(a).
8
18 Pa.C.S. § 3502(a).
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for simple assault, and 72-144 months’ incarceration for burglary. The court
also imposed a concurrent sentence of 18-36 months’ incarceration for PIC.
On December 6, 2012, Appellant filed post-sentence motions, which
the court denied the next day. On March 1, 2013, Appellant filed an
untimely pro se notice of appeal. The court appointed counsel and
ultimately reinstated Appellant’s direct appeal rights nunc pro tunc.
Appellant filed a notice of appeal on July 17, 2013, and on February 7, 2014,
this Court affirmed Appellant’s judgment of sentence.
On April 21, 2014, Appellant filed a timely pro se PCRA petition. The
court appointed counsel on April 25, 2014, who filed a Turner9/Finley10 no
merit letter and a petition to withdraw as counsel on May 27, 2014. On June
5, 2014, the court issued a Pa.R.Crim.P. 907 notice and granted counsel’s
petition to withdraw. On July 2, 2014, the court denied Appellant’s PCRA
petition. Appellant filed a timely notice of appeal on July 14, 2014. The
court did not order, and Appellant did not file, a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On July 21, 2014,
the court issued a statement pursuant to Pa.R.A.P. 1925(a), incorporating its
opinion and notice of intent to dismiss PCRA without a hearing pursuant to
Pa.R.Crim.P. 907, dated June 5, 2014.
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9
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
10
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988).
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Appellant raises the following issues for our review:
WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW
AND/OR ABUSED ITS DISCRETION IN DENYING AND/OR
OTHERWISE DISMISSING WITHOUT A HEARING
APPELLANT’S CLAIMS THAT:
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
MOVE FOR SUPPRESSION AND/OR EXCLUSION OF A
PRE-TRIAL IDENTIFICATION OF APPELLANT WHERE
SAID IDENTIFICATION WAS OBTAINED BY A
PROCEDURE SO UNNECESSARILY SUGGESTIVE AND
CONDUCIVE TO IRREPARABLE MISTAKEN
IDENTIFICATION AS TO DENY APPELLANT DUE
PROCESS OF LAW?
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
COMPLY WITH THE TECHNICAL NOTICE REQUIREMENTS
OF PA.R.CRIM.P. 567, THEREBY PRECLUDING THE
TESTIMONY OF DEFENSE WITNESS, LONI SHEROD,
WHO WAS AVAILABLE AND WILLING TO TESTIFY AS AN
ALIBI WITNESS ON APPELLANT’S BEHALF?
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
OBJECT TO THE ADMISSION OF IRRELEVANT
INFLAMMATORY AND UNDULY PREJUDICIAL
PHOTOGRAPHS, AS CONTAINED ON A COMPACT DISC
MARKED AS COMMONWEALTH EXHIBIT-“1”, WHICH
DEPICTED THE BODY OF APPELLANT’S DECEASED
BROTHER, SHANTI BAYETE?
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
OBJECT TO THE ADMISSION OF EVIDENCE THAT
APPELLANT HAD PREVIOUSLY BEEN CONVICTED OF A
FELONY DRUG OFFENSE?
Appellant’s Brief at 4.
In all of his issues, Appellant argues his trial counsel was ineffective
and he is entitled to a new trial or an evidentiary hearing. Appellant’s issues
merit no relief.
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Our standard of review is well-settled. “In reviewing the denial of
PCRA relief, we examine whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Fears,
86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).
“The scope of review is limited to the findings of the PCRA court and the
evidence of record, viewed in the light most favorable to the prevailing party
at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014)
(citation omitted). “It is well-settled that a PCRA court’s credibility
determinations are binding upon an appellate court so long as they are
supported by the record.” Commonwealth v. Robinson, 82 A.3d 998,
1013 (Pa.2013) (citation omitted). However, this Court reviews the PCRA
court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa.Super.2014) (citation omitted).
Initially, we note that claims of ineffective assistance of counsel are
cognizable under the PCRA and Appellant’s PCRA petition is timely. See 42
Pa.C.S. §§ 9543(a)(2)(ii), 9545(b).
This Court follows the Pierce11 test adopted by our Supreme Court to
review claims of ineffective assistance of counsel:
When a petitioner alleges trial counsel’s ineffectiveness in
a PCRA petition, he must prove by a preponderance of the
evidence that his conviction or sentence resulted from
ineffective assistance of counsel which, in the
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11
Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
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circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place. We have
interpreted this provision in the PCRA to mean that the
petitioner must show: (1) that his claim of counsel’s
ineffectiveness has merit; (2) that counsel had no
reasonable strategic basis for his action or inaction; and
(3) that the error of counsel prejudiced the petitioner-i.e.,
that there is a reasonable probability that, but for the error
of counsel, the outcome of the proceeding would have
been different. We presume that counsel is effective, and
it is the burden of Appellant to show otherwise.
Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal
denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S. Ct.
2029, 164 L. Ed. 2d 782 (2006) (internal citations and quotations omitted).
The petitioner bears the burden of proving all three prongs of this test.
Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001). “If an
appellant fails to prove by a preponderance of the evidence any of the
Pierce prongs, the Court need not address the remaining prongs of the
test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009),
appeal denied, 990 A.2d 727 (Pa.2010) (citation omitted).
First, Appellant argues that because police transported him to the
crime scene, in a patrol car, immediately after the crime, in handcuffs and
covered with blood, the out-of-court identification of him as the robber by
Jordan, Jarod, and Korrine was unduly suggestive. He claims that his
counsel’s failure to move for suppression of this pre-trial identification was
ineffective assistance of counsel that entitles him to a new trial. We
disagree.
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Where the challenge is to a failure to move for suppression
of evidence, the defendant must establish that there was
no reasonable basis for not pursuing the suppression claim
and that if the evidence had been suppressed, there is a
reasonable probability the verdict would have been more
favorable.
Commonwealth v. Melson, 556 A.2d 836, 839 (Pa.Super.1989), appeal
denied, 575 A.2d 111 (Pa.1990) (quoting Kitrell v. Dakota, 540 A.2d 301,
306, (Pa.Super.1988), appeal denied, 565 A.2d 1167 (Pa.1988)).
In reviewing the propriety of identification evidence, the
central inquiry is whether, under the totality of the
circumstances, the identification was reliable. The purpose
of a “one on one” identification is to enhance reliability by
reducing the time elapsed after the commission of the
crime. Suggestiveness in the identification process is but
one factor to be considered in determining the admissibility
of such evidence and will not warrant exclusion absent
other factors. As this Court has explained, the following
factors are to be considered in determining the propriety of
admitting identification evidence: the opportunity of the
witness to view the perpetrator at the time of the crime,
the witness’ degree of attention, the accuracy of his prior
description of the perpetrator, the level of certainty
demonstrated at the confrontation, and the time between
the crime and confrontation. The corrupting effect of the
suggestive identification, if any, must be weighed against
these factors. Absent some special element of unfairness,
a prompt “one on one” identification is not so suggestive
as to give rise to an irreparable likelihood of
misidentification.
Commonwealth v. Kearney, 92 A.3d 51, 65 (Pa.Super.2014), appeal
denied, 101 A.3d 102 (Pa.2014).
Instantly, Jordan, Jarod, and Korrine positively identified Appellant as
the person who had robbed Jordan’s apartment when police brought him to
them in a marked patrol car, immediately after the shooting. Jarod and
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Korrine both testified that they had never seen Appellant’s face, but they
both noticed he was wearing dark clothing. Jordan testified that he saw
Appellant’s face when he was bending over his brother’s dead body in the
street around 2:00 a.m., under a streetlight, when he lifted his mask. He
specifically recognized him as the older brother of Jordan’s friend, Jeremiah.
A suppression court may have found that, under the totality of the
circumstances, the identification by Jarod and Korrine was not reliable and
granted a motion to suppress their out-of-court identification of Appellant.
However, due to Jordan’s certainty of Appellant’s identity as someone he
specifically recognized, it is unlikely the court would have found Jordan’s
identification of Appellant so suggestive as to give rise to an irreparable
likelihood of misidentification.
Even if the court had granted a motion to suppress and found that all
out-of-court identifications were unduly suggestive and tainted because the
police presented Appellant to the witnesses while he was in handcuffs, in a
police vehicle, immediately after the crime scene, Appellant’s claim fails.
Although Appellant alleges that the out-of-court identification is the
only evidence “linking Appellant to [Jordan’s] apartment [and] the crimes
committed therein”,12 Jordan subsequently identified Appellant in court.
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12
Appellant’s Brief at 35.
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“When an out-of-court identification is alleged to be tainted, an in-
court identification may still stand if, considering the totality of the
circumstances, the identification had an origin sufficiently distinguishable to
be purged of the primary taint.” Commonwealth v. Kendricks, 30 A.3d
499, 506 (Pa.Super.2011), appeal denied, 46 A.3d 716 (Pa.2012) (internal
quotations and citation omitted). The Commonwealth must prove this
independent basis for identification through clear and convincing evidence.
See Commonwealth v. Davis, 17 A.3d 390, 394 (Pa.Super.2011), appeal
denied, 29 A.3d 371 (Pa. 2011). “An independent basis is established when
‘the in-court identification resulted from the criminal act and not the
suggestive [identification procedure].’” Id.
The factors a court should consider in determining whether there
was an independent basis for the identification include: (1) the
opportunity of the witness to view the criminal at the time of the
crime; (2) the witness’s degree of attention; (3) the accuracy of
the witness’s prior description of the criminal; (4) the level of
certainty demonstrated by the witness during the confrontation;
and (5) the length of time between the crime and the
confrontation.
Kendricks, 30 A.3d at 506.
With regard to the first factor, Jordan had an opportunity to view
Appellant while he robbed the apartment, wearing dark clothing and a mask.
Jordan then saw Appellant’s face while Appellant was bent over his dead
brother’s body and lifted his mask. Jordan immediately recognized Appellant
as someone he had seen before in the neighborhood, specifically, the
brother of Jordan’s friend, Jerimiah.
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Regarding the second factor, due to the intensity of the robbery, it is
likely Jordan was paying close attention, even though he had been smoking
marijuana and had been knocked down and tased.
Regarding the accuracy of the description, Jordan testified that the two
people who robbed his apartment were wearing: “Black jacket[s] and
pantyhose over their face[s]. Just all black.” N.T., 9/12/12, at 43. After
the shot was fired, Jordan saw Appellant dragging his brother in the street
and testified: “[Appellant] lifted up his mask and I was like, oh, I know who
you are.” Id. at 51. Jordan testified that he recognized Appellant as his
friend’s brother because he had seen him around before in the
neighborhood.
Regarding the fourth and fifth factors, Jordan expressed certainty that
Appellant was the person who robbed him, and he identified him
immediately after the crime.
An analysis of these factors make it unlikely that a court would have
granted a motion to suppress Jordan’s out-of-court identification of
Appellant. However, even if the court had granted a motion to suppress the
out-of-court identification, Jordan’s in-court identification was admissible
because it resulted from the criminal act and not the suggestive
identification procedure. See Davis, supra. This in-court identification,
along with the corroborative stories of the other witnesses and Appellant’s
admission that he was at the crime scene, dragging his brother in the street,
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implicated Appellant as one of the two robbers. Even if the court had
granted a motion to suppress the out-of-court identification, there is not a
reasonable probability that the result of the trial would have been more
favorable to Appellant. See Carelli, supra.
Because Appellant was not prejudiced by the alleged error by counsel,
an evidentiary hearing is unnecessary. See Clemmons, supra.
Additionally, even if Appellant’s claim had arguable merit, and counsel had
no strategic basis for failing to file a motion to suppress the out-of-court
identification, because he has failed to prove by a preponderance of the
evidence the prejudice prong required by Pierce, his first claim fails. See
Fitzgerald, supra.
In his second issue, Appellant claims his trial counsel failed to comply
with the technical notice requirements of Pa.R.Crim.P. 567, which precluded
Appellant’s alibi witness Loni Sherod from testifying. Appellant concludes his
counsel’s ineffectiveness entitles him to an evidentiary hearing or a new
trial. We disagree.
Where a claim is made of counsel’s ineffectiveness for
failing to call witnesses, it is the appellant’s burden to
show that the witness existed and was available; counsel
was aware of, or had a duty to know of the witness; the
witness was willing and able to appear; and the proposed
testimony was necessary in order to avoid prejudice to the
appellant.
Com. v. Chmiel, 30 A.3d 1111, 1143 (Pa.2011) (quoting Commonwealth
v. Wayne, 720 A.2d 456, 470 (Pa.1998)).
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To properly grant [relief on an ineffective assistance of
counsel claim], the PCRA court would have to find that the
… witness had relevant evidence that could have aided
[appellant’s] defense, and that there is a reasonable
probability that the introduction of such evidence would
have altered the outcome of the trial.
Commonwealth v. Johnson, 966 A.2d 523, 540 (Pa.2009).
In this case, it is not clear that Appellant’s witness was available to
testify on Appellant’s behalf even if counsel had complied with the technical
notice requirements of Pa.R.Crim.P. 567. The following transpired at trial:
[DEFENSE COUNSEL]: There is another witness, Lonny
Sherod, he’s not here, again – he’s wavering again. He’s
supposed to be here tomorrow...
[PROSECUTOR]: …I’ll object to that… If you look at the
notice that he filed, it wasn’t a notice. He didn’t give me
an address, he didn’t give me a proffer as to where he
was. And in the notice, he actually specifically said he
would withdraw the notice if he didn’t have that
information. So I took him at his word, didn’t file a
response and until yesterday actually I didn’t think Sherrod
was going to be part of the case.
[DEFENSE COUNSEL]: … I had to file it late… I did contact
Mr. Sherrod on a few occasions. He seemed disinterested
in me and did not get back to me. The only reason why
I’m asking the court today is because I have to on behalf
of my client because he came forward last night and I
know it’s late notice.
THE COURT: No. I will not allow alibi.
N.T., 9/12/12, at 126-127.
Although the court did not conduct an evidentiary hearing, it is unlikely
that Appellant would meet his burden of proving that the witness was
available or that counsel had a reason to know that Appellant wanted to
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present him as an alibi witness. Even if the court had permitted Mr. Sherod
to testify, the transcript reveals that the witness was uncooperative and did
not appear in court. Further, because Appellant only came forward the night
before trial about his request to introduce Mr. Sherod as an alibi witness,
counsel may not have been aware of the witness at all.
Even if Appellant could prove that his claim had arguable merit and
that counsel had no reasonable strategy for failing to call Mr. Sherod as an
alibi witness, Appellant again fails to prove by a preponderance of the
evidence the prejudice prong established in Pierce.
Appellant admits to being at the crime scene, minutes after the crime,
holding his bleeding brother in his arms in the street. Jordan testified that
he saw Appellant rob his apartment and then lift his mask while standing
over the body. The police testified that they saw Appellant immediately
after the crime, covered in blood and wearing dark clothing. Appellant
testified that he was coincidentally there at that time to check on his
brother, who had departed to purchase marijuana from Jordan. If he had
testified, Loni Sherod may or may not have corroborated Appellant’s story.
However, he would not have presented any new information that would have
placed Appellant anywhere other than at the crime scene immediately after
the crime. Thus, Appellant has failed to prove by a preponderance of the
evidence that the outcome of the trial would have been different if Mr.
Sherod had testified.
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In his third issue, Appellant argues his counsel was ineffective for
failing to object to “inflammatory and unduly prejudicial photographs” of
Appellant’s deceased brother, Shanti Bayete. Appellant’s claim lacks
arguable merit because Appellant was not on trial for the murder of his
brother, and he fails to articulate how the photographs were prejudicial to
his trial for burglary.
In his fourth issue, Appellant claims his trial counsel was ineffective for
failing to object the admission of evidence that Appellant had been
previously convicted of a felony drug offense. Again, Appellant’s claim fails.
We recognize that, pursuant to Pa.R.E. 403, relevant
evidence may be excluded “if its probative value is
outweighed by a danger of ... unfair prejudice.” In a
Comment to Rule 403, unfair prejudice is defined as “a
tendency to suggest decision on an improper basis or to
divert the jury’s attention away from its duty of weighing
the evidence impartially.” We are unable to conclude that,
in a § 6105 persons not to possess firearms case, a
defendant suffers unfair prejudice merely by the admission
into evidence of his or her certified conviction of a specific,
identified, predicate offense, which has been offered by the
Commonwealth to prove the prior conviction element of §
6105.
Any possibility of unfair prejudice is greatly mitigated by
the use of proper cautionary instructions to the jury,
directing them to consider the defendant’s prior offense
only as evidence to establish the prior conviction element
of the § 6105 charge, not as evidence of the defendant’s
bad character or propensity to commit crime.
Commonwealth v. Jemison, 98 A.3d 1254, 1262 (Pa.2014).
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“The law presumes that the jury will follow the instructions of the
court.” Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa.2011)
(quoting Commonwealth v. Spotz, 896 A.2d 1191, 1224 (Pa.2006).
Instantly, Appellant was charged with possessing a firearm, persons
not to possess firearms. Counsel stipulated to Appellant’s prior conviction as
an element of this crime, and the court gave a curative instruction:
Let me also say as to the stipulation to the fact that
[Appellant] has a prior conviction which precludes him
from owning a firearm, that prior conviction is not in any
way, shape, or form any evidence of [Appellant’s] guilt in
this case. The sole purpose for the admission of that prior
conviction is to show that [Appellant] is not allowed, under
Pennsylvania law, to own a firearm because of it, and that
is part of the charge that is – has been lodged against him
at Count Number 11 and I will instruct you specifically on
the elements of that charge at a later time.
N.T., 9/12/12, at 124-125.
Because the law presumes the jury followed the court’s instruction,
Appellant has suffered no prejudice.13
Order affirmed.
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13
Additionally, Appellant testified about illegal drug transactions and his
knowledge and understanding of them. See N.T., 9/13/12, at 5, 17. Even if
evidence of Appellant’s prior conviction had not been introduced, the jury
would have been aware of Appellant’s prior bad acts.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2015
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