Com. v. Lewis, D. ( 2017 )

J-S95015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARNELL RAY LEWIS, JR.
Appellant No. 1377 EDA 2016
Appeal from the PCRA Order Entered April 4, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No: CP-39-CR-0005370-2012
BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 21, 2017
Appellant, Darnell Ray Lewis, Jr., appeals pro se from the April 4, 2016
order dismissing his petition pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
The underlying facts are as follows:
On the morning of October 18, 2011, Barbara Hausknect
[(“Hausknect”)] left her home in Allentown, Pennsylvania and
travelled by foot to the Taco Bell located on Route 145,
Whitehall, Lehigh County, Pennsylvania to get her paycheck.
Hausknect was with her friend, Jeremiah “J.J.” Carasquilla
(“Carasquilla”). From Taco Bell, the two walked further north on
Route 145 to the Walmart Superstore. The two shopped at
Walmart for approximately 30 to 45 minutes. While there,
Hausknect selected a few items and proceeded to the checkout
lane. There, she signed over her paycheck to pay for her
selected items and obtained the remainder of the money owed to
her. Hausknect put the additional money, totaling approximately
$500[.00], into her black wristlet wallet. Hausknect and
Carasquilla exited through the doors and walked to their left.
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While speaking to her friend, Hausknect noticed
[Appellant] pacing nearby and [Ferante Troutman (“Troutman”)]
approximately [five] feet away. The individuals made her
nervous and they continued to walk in front of Hausknect and
Carasquilla. [Appellant], wearing a red long-sleeved shirt, gray
sweatshirt, jeans[,] and a black hat, approached Hausknect and
asked her for a cigarette. Hausknect replied that she did not
have one. [Appellant] then asked for a lighter and Hausknect
handed Carasquilla matches to give to [Appellant]. [Appellant]
and Carasquilla were now behind Hausknect. [Appellant] then
approached Hausknect from behind and asked for her money.
She replied “Hell, no” and continued to walk away. [Appellant]
then asked her for her wallet, and she again replied, “No.”
After Hausknect refused to give [Appellant] the wallet,
[Appellant] pulled out a gun and pointed it at her. [Appellant]
grabbed at Hausknect and tried to take her wallet from her left
hand. Hausknect struggled with [Appellant]. As Hausknect
attempted to run away from [Appellant], she was shot directly in
her back. After she fell to the ground, [Troutman] held
Hausknect down and [Appellant] hit her in the mouth with the
gun, cutting her below her nose and damaging her teeth. The
individuals got her wallet and got into a silver or blue vehicle.
[…]
Immediately, people from nearby stores came to
Hausknect’s aid. They applied pressure to her wound and
attempted to calm her down. At approximately 12:30 p.m.,
members of the Whitehall Township Police Department arrived
on scene. Patrolman Derrick Williams observed several people
flagging him down and found [] Hausknect lying on the ground.
Patrolman Williams spoke to the victim and attempted to get a
description of the perpetrator(s) and the vehicle involved.
Carasquilla, who had initially run when [Appellant] pulled out the
gun, returned to Hausknect’s location and related that the two
black males involved ran to a blue vehicle and fled the area.
Patrolman Williams observed blood pulsing out of the victim’s
back and blood in her mouth area. He directed her to stop
attempting to move and determined that she was traumatized
and in shock. [Hausknect] ultimately left by ambulance and was
taken to Lehigh Valley Hospital for immediate surgery. During
the surgery, a bullet was retrieved from [Hausknect]’s back and
was taken into evidence.
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[***]
On October 18, 2011, [Tymesha] McKenzie [(“McKenzie”),
Appellant’s co-defendant,] received a phone call from [Appellant]
and Troutman, asking her to give them a ride. She and her then
[two] year old son picked the two men up in Allentown and
proceeded to the Walmart in Whitehall. She was driving a blue
Chevrolet Cobalt bearing a license plate from the State of North
Carolina. [Appellant] was seated in the front passenger seat and
Troutman and the minor child were in the back seat. McKenzie
parked her vehicle in the parking lot while Troutman and
[Appellant] went inside the Walmart. [Appellant] was wearing a
red shirt and Troutman was wearing a gray shirt.
Shortly thereafter, the two men emerged from the
Walmart, without any bags or packages. They reentered
McKenzie’s vehicle. [Appellant] took out a silver “cowboy style”
gun, placed it on his lap, and instructed McKenzie to drive. One
of the men instructed her to stop the vehicle when they noticed
Hausknect walking in the parking lot. [Appellant], still
possessing the gun, walked in Hausknect’s direction, with
Troutman a small distance behind [Appellant]. McKenzie
watched their interaction with Hausknect from the side window
of her vehicle. She saw [Appellant] point the gun at Hausknect
and saw her fall, although she did not actually hear any shots.
Once Hausknect fell to the ground, McKenzie saw
Troutman take her wallet and both men returned to McKenzie’s
vehicle. When McKenzie asked [Appellant] if he shot Hausknect,
[Appellant] replied that he had to because she wasn’t going to
give him her wallet. McKenzie, Troutman, and [Appellant] left
the area. While driving back to Allentown, [Appellant] removed
the money from the [wallet] and threw the wallet out[of] the
window.
[***]
Dr. [Michael] Badellino testified that the area where
[Hausknect] was shot was a critical part of the body in that it
receives secretions of the pancreas and processes bile from the
liver.
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Commonwealth v. Lewis, 2968 EDA 2013 (Pa. Super. Filed August 13,
2014), unpublished memorandum at 1-4 (quoting Trial Court Opinion,
11/5/13, at 3-7).
On January 5, 2012, the Commonwealth charged Appellant with
attempted homicide, robbery, aggravated assault, theft by unlawful taking,
receiving stolen property, and conspiracy.1 A bench trial commenced on July
29, 2013, and the trial court found Appellant guilty of all charges on July 31,
2013. On September 9, 2013, the trial court imposed an aggregate thirty to
sixty years of incarceration. This Court affirmed the judgment of sentence
on August 13, 2014. See id. Our Supreme Court denied allowance of
appeal on December 16, 2014.
Appellant filed a timely pro se PCRA petition on October 8, 2015. The
PCRA court appointed counsel on October 12, 2015. On February 22, 2016,
counsel filed a no merit letter and petition to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On February 29,
2016, the PCRA court filed a notice of intent to dismiss Appellant’s petition
without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant responded to
the Rule 907 notice on March 21, 2016. On April 4, 2016, the PCRA court
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1
18 Pa.C.S.A. §§ 901, 2501, 3701, 2702, 3921, 3925, and 903,
respectively.
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entered an order denying Appellant’s petition and granting counsel’s petition
to withdraw. This timely pro se appeal followed.
Appellant raises six assertions of error:
1. Counsel was ineffective where he failed to obtain an expert
witness concerning eyewitness identification.
2. Counsel was ineffective where he failed to present the desired
defense requested by [Appellant].
3. The trial court was erroneous in waiving [Appellant’s]
sufficiency of the evidence claim previously litigated [sic].
4. [Appellant] argues that the evidence was insufficient to
convict the petitioner of criminal attempted homicide[.]
5. Did [Appellant’s] trial attorney constitute ineffective
assistance of counsel where he didn’t read and understand
the applicable law?
6. Counsel was ineffective for failing to fully litigate sufficiency of
the evidence on direct appeal.
Appellant’s Brief at 7.2
The arguments in Appellant’s brief do not align with the six assertions
of error. See Pa.R.A.P. 2119(a) (“The argument shall be divided into as
many parts as there are questions to be argued [….]”). Assertions of error 1
and 2 appear to relate to counsel’s failure to call an expert witness.
Assertions of error 3, 4, and 6 relate to Appellant’s sufficiency of the
evidence argument, and whether appellate counsel rendered ineffective
service in his presentation of that issue on direct appeal. Assertion of error
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2
Appellant’s Brief is not paginated. We have added our own pagination,
with page one immediately following the cover page.
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5 criticizes trial counsel’s defense strategy. We will address these issues in
turn.
On review from a PCRA court’s denial of relief, we must determine
whether the record supports the court’s findings and whether its legal
determinations are free from error. Commonwealth v. Pitts, 981 A.2d
875, 878 (Pa. 2009). Appellant argues trial counsel was ineffective for not
offering expert testimony on the victim’s identification. Appellant argues
that scientific evidence indicates that identification testimony from a victim
who was under attack, and therefore under a great deal of stress, is
potentially unreliable. To establish ineffective assistance of counsel, a PCRA
petitioner must plead and prove that the underlying claim is of arguable
merit, that counsel had no reasonable strategic basis for the act or omission;
and that counsel’s mistake prejudiced the petitioner. Commonwealth v.
Kimball, 724 A.2d 326, 333 (Pa. 1999). Further, to succeed on a claim that
counsel was ineffective for failing to call a certain witness, the petitioner
must show
(1) that the witness existed; (2) that the witness was available;
(3) that counsel was informed of the existence of the witness or
should have known of the witness’s existence; (4) that the
witness was prepared to cooperate and would have testified on
appellant’s behalf; and (5) that the absence of the testimony
prejudiced appellant.
Commonwealth v. Brown, 767 A.2d 576, 581–82 (Pa. Super. 2001).
“Thus, trial counsel will not be found ineffective for failing to investigate or
call a witness unless there is some showing by the appellant that the
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witness's testimony would have been helpful to the defense.” Id. “A failure
to call a witness is not per se ineffective assistance of counsel for such
decision usually involves matters of trial strategy.” Id.
In Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014), our Supreme
Court removed an absolute prohibition on expert testimony regarding
eyewitness identifications.
We now allow for the possibility that such expert testimony
on the limited issue of eyewitness identification as raised in this
appeal may be admissible, at the discretion of the trial court,
and assuming the expert is qualified, the proffered testimony
relevant, and will assist the trier of fact. Of course, the question
of the admission of expert testimony turns not only on the state
of the science proffered and its relevance in a particular case,
but on whether the testimony will assist the jury. Trial courts
will exercise their traditional role in using their discretion to
weigh the admissibility of such expert testimony on a case-by-
case basis. It will be up to the trial court to determine when
such expert testimony is appropriate. If the trial court finds that
the testimony satisfies Frye,[3] the inquiry does not end. The
admission must be properly tailored to whether the testimony
will focus on particular characteristics of the identification at
issue and explain how those characteristics call into question the
reliability of the identification. We find the defendant must make
an on-the-record detailed proffer to the court, including an
explanation of precisely how the expert’s testimony is relevant to
the eyewitness identifications under consideration and how it will
assist the jury in its evaluation. The proof should establish the
presence of factors (e.g., stress or differences in race, as
between the eyewitness and the defendant) which may be
shown to impair the accuracy of eyewitness identification in
aspects which are (or to a degree which is) beyond the common
understanding of laypersons.
Commonwealth v. Walker, 92 A.3d 766, 792 (Pa. 2014).
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3
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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Appellant’s brief goes on at length about the scientific evidence
pertaining to expert evaluation of eyewitness identifications. Appellant does
not, however, proffer an expert who would have testified on Appellant’s
behalf, given the facts of this case. Nor does Appellant attempt to explain
why expert testimony would have been helpful to him in this case. As our
Supreme Court explained in Walker, the admission of expert testimony as
to an eyewitness identification is highly dependent on the facts at issue.
Appellant has failed to demonstrate that expert testimony was relevant,
admissible, and helpful to him in this case. Thus, he cannot demonstrate
that counsel was ineffective for failing to call an expert. We reject
Appellant’s first and second assertions of error as lacking in merit.
Next, Appellant argues that the evidence against him was insufficient,
and that appellate counsel was ineffective in presenting a sufficiency of the
evidence challenge on direct appeal.
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s participation in a crime is
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circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the light most
favorable to the Commonwealth, demonstrates the respective
elements of a defendant’s crimes beyond a reasonable doubt,
the appellant’s convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722–23 (Pa. Super. 2013)
(internal citations and quotation marks omitted).
Appellant challenges direct appeal counsel’s effectiveness to avoid the
previous litigation bar of § 9543(a)(3). On direct appeal, Appellant argued
that the Commonwealth failed to produce sufficient evidence that Appellant
acted with specific intent to kill. Lewis, 2968 EDA 2013, unpublished
memorandum at 6. We rejected that argument because the record
demonstrated that Appellant filed a gunshot at a vital part of the victim’s
body. Id. at 6-7. Appellant also argued that he shot the victim because she
would not turn over her wallet, and not because he intended to kill her. Id.
at 7. We rejected that argument because it required us to draw an inference
in Appellant’s favor. Id.
Appellant’s present argument, while unartful, appears to be precisely
the same argument this Court rejected on direct appeal. Appellant argues
that “[c]ompetent counsel would have determined that the evidence that
[Appellant] had the ‘intent to rob’ the victim through his actions and
conduct.” Appellant’s Brief at 17. “Competent counsel would have
determined that the evidence shown [sic] that [Appellant] could’ve had the
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intent to rob and the chance of having the specific intent to kill was
extremely thin.” Id. at 18. Further, “[t]he use of a deadly weapon directed
at a vital organ of another human being justifies a factual presumption that
the actor intended death unless the testimony contains additional evidence
that would demonstrate a contrary intent.” Id. at 19. Based on the
foregoing, we conclude the PCRA court did not err in treating this argument
as previously litigated. Appellant’s third, fourth, and sixth assertions of error
therefore lack merit.
The sole remaining issue is Appellant’s assertion that counsel was
ineffective for failing to read and understand the applicable law. This
argument appears to be based on Appellant’s belief that his sufficiency of
the evidence and expert witness arguments were meritorious. See
Appellant’s Brief at 16. Since we have concluded otherwise, we reject this
assertion as well.
Having found no merit in any of Appellant’s arguments, we affirm the
PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2017
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