Com. v. Shipley, J. ( 2014 )

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37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. :
:
JOHN ROSCOE SHIPLEY, :
:
Appellant : No. 1650 WDA 2013
Appeal from the PCRA Order September 25, 2013,
Court of Common Pleas, Cambria County,
Criminal Division at No. CP-11-CR-0002077-2010
BEFORE: DONOHUE, OLSON and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 26, 2014
) appeals from the order of court
denying his petition filed pursuant to the Post Conviction Relief Act, 42
Pa.C.S.A. §§ 9541-
We begin with a brief recitation of the facts, as summarized by this
Court in
loaf of bread while she remained in the car. N.T.,
6/16/11, at 4. As he entered his house, he observed
an intruder carrying a white box that was later
identified as a computer gaming module (a Wii). Id.
at 38. [] Werzyn chased the intruder out of the
house and engaged in a brief struggle with him on
the outdoor deck before he ran away. Id. Amber
after observing an intruder flee the house with her
husband following behind him. Id. at 74. [] Werzyn
described the intruder as late fifties, grayish hair,
*Retired Senior Judge assigned to the Superior Court.
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gray sweatshirt, blue jeans and tennis shoes. Id.
at 41.
the home soon after receiving a call from Ms. Werzyn
about the intruder. Id. at 89. Peel then began to
move in the direction in which Ms. Werzyn told her
the intruder had fled. Id. at 89. She soon came
upon a man in a car attempting to turn around in the
street, at which time she stopped him and asked if
he had seen anyone. Id. at 91. She then went back
about her encounter with the man in the automobile,
including a description of his appearance, his car,
and his license plate number. Id. at 93.
A police officer in a neighboring municipality soon
stopped a vehicle with the license plate number and
physical description provided by Peel. Id. at 105.
The police called [] Werzyn and asked him to come
to the scene of the vehicle stop (about a mile and a
half to two miles from his home). Id. at 47. []
Werzyn immediately did so and, upon arrival,
identified Shipley as the intruder. Id. at 48. Later in
look through a window at Shipley in his cell. Id. at
93-94. She identified Shipley as the man she had
seen and talked to earlier that evening. Id.
Commonwealth v. Shipley, 48 A.3d 481 (Pa. Super. 2012) (unpublished
memorandum).
Shipley was convicted of burglary, criminal trespass, driving under the
influence, loitering and prowling at nighttime, and criminal mischief. He was
sentenced to an aggregate term of seven and three-quarters to 15½ years
of incarceration. This Court affirmed his judgment of sentence on direct
appeal. After his petition for allowance of appeal to the Pennsylvania
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Supreme Court was denied, Shipley filed a pro se PCRA petition. Counsel
timely appeal followed.
We begin with our standard of review:
Our review of a PCRA court's grant or denial of relief
is limited to examining whether the court's
determination is supported by the evidence and
whether it is free of legal error. This Court grants
great deference to the findings of the PCRA court,
and we will not disturb those findings merely
because the record could support a contrary holding.
The findings of a post-conviction court will not be
disturbed unless they have no support in the record.
Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa. Super. 2002)
(internal citations omitted).
Shipley raises two claims on appeal, both of which claim ineffective
assistance of trial counsel. To prove ineffective assistance of his trial
counsel, an appellant must show (i) that the underlying claim is of arguable
merit; (ii) that counsel had no reasonable basis designed to effectuate the
counsel's ineffectiveness actually prejudiced the appellant. Commonwealth
v. Moser, 921 A.2d 526, 531 (Pa. Super. 2007). The failure to meet any
prong of this test requires that the claim be dismissed. Id.In his first issue, Shipley claims that trial counsel was ineffective for
failing to raise a particular issue in the trial court and thereby preserve it for
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direct appeal. Specifically, Shipley argues that trial counsel should have
-
laim, some further background is
necessary. On the night of the burglary, after making the roadside
identification of Shipley mentioned in the recitation of the facts above,
Werzyn went to the police station to give a statement. Shipley alleges that
while he was in a holding room in the police station, a Detective Musulin
opened the door, put Werzyn in front of Shipley and asked Shipley if Werzyn
-10. According to Shipley,
when he responded in the negative,
Id. at 10.
Shipley argues that this interaction, which he characterizes as an
identification of Shipley by Werzyn, was highly suggestive and that trial
counsel was ineffective for not questioning Werzyn about this occurrence
identification, and the need for that identification, prejudiced [Shipley] in
that the level of certainty of [] Werzyn at the street identification was not
The PCRA court dismissed this claim upon finding that that there is no
occurred, and therefore that there is no merit to this claim. See PCRA Court
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Opinion, 9/25/13, at 2-4. We agree. The events as alleged by Shipley fail
to establish that Werzyn made an identification at the police station at all;
rather, they establish only that Shipley was asked a question about
identity. Shipley conjectures that perhaps Werzyn doubted his
roadside identification and asked to see Shipley again; however, there is
absolutely no evidence to support this claim.1 To be entitled to relief under
the petitioner must plead and prove by a preponderance of the
failed to prove the facts underlying this claim, and therefore failed to
establish that it has merit.
In his second issue, Shipley argues that trial counsel was ineffective
Werzyn identified Shipley as the man he encountered in his kitchen. N.T.,
7/6/11, at 41. On cross-examination, trial counsel sought to impeach
crimen falsi convictions,
receiving stolen property, and conspiracy to commit access device fraud.
Id. at 61-64. Shipley testified in his own defense, claiming that he was on
1
Of note, Shipley did not call Detective Musulin to testify at the PCRA
hearing.
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thought it was the home of his friends, Erica and Mike. Id. at 198-99. He
also called a man he met in prison, Joseph Bittner, to testify that Werzyn
has a poor reputation for truthfulness in the community. Id. at 186; N.T.,
h
recalled Werzyn in rebuttal. Werzyn testified that had never met Bittner or
the people Bittner claimed they knew in common. Id. at 222-23. Shipley
assault and disorderly conduct convictions, because evidence of these
Brief at 10. We disagree.
testimony about the witness's reputation for having a character for
testimony, Shipley sought to offer evidence of these two criminal convictions
as
credibility is limited to convictions of crimes involving dishonestly or false
ons
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Shipley sought to introduce were for assault and disorderly conduct, which
do not involve dishonestly or false statements.2 Accordingly, they were not
proper impeachment material.
do
at 10, we also disagree.
inadmissible evidence by presenting proof that creates a false impression
Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013). In this
instance
evidence of the two convictions at issue. Thus, we find no error in the trial
these convictions, and therefore that there was no merit to this issue. PCRA
Court Opinion, 9/25/13, at 4.
Order affirmed.
Platt, J. concurs in the result.
2
See 18 Pa.C.S.A. §§ 2701(a), 5503(a).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2014
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