Com. v. Bashir, J. ( 2021 )

J-A25043-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JIHAD RAGUEEB BASHIR :
:
Appellant : No. 197 MDA 2020
Appeal from the PCRA Order Entered January 8, 2020
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007373-2012
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: JANUARY 15, 2021
Appellant, Jihad Ragueeb Bashir, appeals from the order entered in the
York County Court of Common Pleas, which denied his first petition filed under
the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
The relevant facts and procedural history of this case are as follows:
[Appellant]’s convictions arose from the September 6, 2011
shooting of [Victim], who testified as follows. On the night
in question, [Victim] and his aunt were smoking cigarettes
outside the home of [Victim]’s mother on 207 Jefferson
Avenue, York. [Victim]’s aunt entered the house to use the
bathroom, and [Victim] remained outside. [Victim] looked
to the right, to the left, and again to the right. When he
turned back to look left, [Victim] saw “a guy standing in
front of [him].”
At that time [Victim] was not impaired, and the man was
ten feet away. [Victim] recognized the person and identified
him at trial as [Appellant]. [Appellant] asked [Victim] where
[Victim]’s nephew “Blizz” was located. [Appellant] then
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“started fumbling around,…pulled out a gun,” and shot
[Victim] in the face with a .357 Magnum. After shooting
[Victim] a single time, [Appellant] ran away.
[Victim] explained that he recognized [Appellant] because
[Appellant]’s mother had introduced [Appellant] to [Victim].
[Victim] also saw [Appellant] two weeks prior to the incident
seated in a car. At that time, [Victim] overheard [Appellant]
telling someone that his name was [Appellant]. [Victim]
testified that he did not initially remember who shot him,
but when his memory returned in November, he called his
mother and told her that [Appellant], who was Tanoue’s
son, had committed the crime.
Eartha, [Victim]’s mother, confirmed that, in November
2011, while [Victim] was still hospitalized, he called her on
the telephone and said, “[I] remember now, I know who
shot me, and he said [Appellant]. He said big Tanoue’s
son.” [Victim’s mother] did not know [Appellant] but was
acquainted with his mother, whose first name was Tanoue.
[Victim]’s brother, Michael, also testified that, in November
2011, [Victim]’s memory of the events of the shooting
returned. [Victim] also told Michael that [Appellant],
Tanoue’s son, was his assailant.
York Detective Travis Sowers testified that he was the lead
detective in the investigation into the shooting. After
[Victim] returned to his mother’s home from the hospital
and rehabilitation, Detective Sowers visited him. Detective
Sowers testified, “I asked him who shot him. He advised
me [Appellant]. The next thing I asked, [Appellant]? And
he said, yes, the one who lives on South Street.” Detective
Sowers told the jury that [Appellant] lived with his mother,
Tanoue…, at 21 East South Street. Five days after this first
interview, Detective Sowers showed [Victim] [Appellant]’s
picture, and “he hit the picture and said that’s the guy who
shot me right there, that’s Tanoue’s son[.]”
Based upon this evidence, a jury convicted [Appellant] of
attempted murder and aggravated assault graded as a first-
degree felony. The matter proceeded to sentencing on May
1, 2014, where the court imposed a twenty to forty year
term of imprisonment as to the attempted murder and no
penalty on aggravated assault since that crime merged for
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sentencing purposes.
(PCRA Court Opinion, filed January 6, 2020, at 1-3) (internal citations
omitted). This Court affirmed the judgment of sentence on June 4, 2015, and
our Supreme Court denied allowance of appeal on December 17, 2015. See
Commonwealth v. Bashir, 122 A.3d 1124 (Pa.Super. 2015) (unpublished
memorandum), appeal denied, 634 Pa. 724, 128 A.3d 1204 (2015).
On August 24, 2016, Appellant filed a timely PCRA petition pro se, and
the PCRA court subsequently appointed counsel. Counsel filed an amended
petition on February 21, 2017, and a second amended petition on April 3,
2017. In the petitions, Appellant argued, inter alia, that trial counsel failed to
call an expert witness who could have addressed Victim’s competency to
testify and failed to file a motion to challenge Victim’s competency. Appellant
also requested fees to retain Dr. Amy Taylor, an expert in forensic psychology,
to meet with Victim and determine if he had been competent to testify at trial.
Following a status hearing on April 25, 2017, the court granted Appellant’s
request for fees to retain Dr. Taylor, but limited Dr. Taylor’s report to a review
of Victim’s medical records prior to trial and did not permit a face-to-face
interview with Victim.
Following changes in counsel, current PCRA counsel filed another
amended petition on September 30, 2019, and the court conducted a PCRA
hearing on October 30, 2019. Detective Sowers, Dr. Taylor, and trial counsel
testified at the hearing. Detective Sowers repeated much of his trial testimony
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regarding Victim’s identification of Appellant. Dr. Taylor testified that she
studied Victim’s medical records from September 2011 to August 2012, and
while she could not provide an opinion as to Victim’s competency to testify at
the time of trial, she stated that had she been consulted prior to trial, she
would have suggested that a competency evaluation of Victim be conducted.
Trial counsel testified that she addressed Victim’s hallucinations, brain
swelling, and inconsistencies in his memory by calling or cross-examining
various medical and lay witnesses, including psychiatrist, Dr. Stephen Dilts;
Dr. Daniel Carney, the emergency room doctor who treated Victim following
the shooting; and Lori Genovese, the medical custodian of records. Trial
counsel testified that she and Appellant had numerous conversations about
the problems with Victim’s memory and Victim’s identification of Appellant.
Trial counsel, however, conceded that she did not review or consider
Pennsylvania Rule of Evidence 601 prior to Appellant’s trial, and had never
previously challenged an adult witness’ competency. Trial counsel further
stated that she did not consider challenging Victim’s competency or hiring an
expert to assist in doing so, and now believes her failure to do so was a
mistake. Trial counsel also stated that she should have filed a motion to
suppress Victim’s identification of Appellant based on Victim’s memory issues.
The PCRA court denied relief on January 8, 2020. On January 24, 2020,
Appellant filed a timely notice of appeal. On January 27, 2020, the court
ordered Appellant to file a concise statement of errors complained of on appeal
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pursuant to Pa.R.A.P. 1925(b); Appellant complied on February 24, 2020.
Appellant raises the following issues on appeal:
Whether the [PCRA] court erred and abused its discretion
by finding that Appellant’s trial counsel was not ineffective
for failing to file a motion challenging the competency of the
victim?
Whether the [PCRA] court erred and abused its discretion
by finding that Appellant’s trial counsel was not ineffective
for failing to consult with an expert witness to opine whether
or not the victim was competent to testify pursuant to
Pa.R.[E.] 601?
Whether the [PCRA] court erred and abused its discretion
by finding that Appellant’s trial counsel was not ineffective
for failing to file a motion to suppress the victim’s
identification of Appellant, which was the product of police
suggestiveness and confabulation by the victim?
(Appellant’s Brief at 4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795(2011). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74(2007). We do not give the same deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012).
Traditionally, credibility issues are resolved by the trier of fact who had the
opportunity to observe the witnesses’ demeanor. Commonwealth v. Abu-
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Jamal, 553 Pa. 485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120
S.Ct. 41, 145 L.Ed.2d 38 (1999). “A PCRA court passes on witness credibility
at PCRA hearings, and its credibility determinations should be provided great
deference by reviewing courts.” Commonwealth v. Johnson, 600 Pa. 329,
356-357, 966 A.2d 523, 539 (2009).
Pennsylvania law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, the petitioner is required
to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had
no reasonable strategic basis for her action or inaction; and, (3) but for the
errors and omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different. Commonwealth v.
Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong
of the test for ineffectiveness will cause the claim to fail. Williams, supra.“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate [her] client’s interests. If we
conclude that the particular course chosen by counsel had
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some reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The [appellant] must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. In [Kimball, supra], we held that a “criminal
[appellant] alleging prejudice must show that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)
(some internal citations and quotation marks omitted).
In his first issue, Appellant argues trial counsel was ineffective for failing
to file a motion to challenge Victim’s competency to testify. Appellant
contends Victim suffered a gunshot wound to the head that caused “severe
brain injuries, hallucinations, and the inability to separate confabulation from
reality,” and was diagnosed with “dementia secondary to a traumatic brain
injury.” (Appellant’s Brief at 12-13). Appellant claims these injuries
prevented Victim from initially remembering who shot him, as Victim did not
identify Appellant as his assailant until several months after the attack.
Appellant suggests that someone could have told Victim to incriminate
Appellant, or Victim might have hallucinated that Appellant was his attacker.
Appellant avers he has always maintained his innocence of the crime, and no
other evidence outside of Victim’s testimony points toward his guilt.
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Appellant further emphasizes Dr. Taylor’s opinion that Victim should
have been examined by a psychologist prior to trial to determine whether his
traumatic brain injury prevented him from remembering who shot him.
Appellant maintains Victim’s injuries, symptoms, and diagnosis, as well as the
delay in identification, were sufficient to prove Victim’s incompetency under
Rule 601 of the Pennsylvania Rules of Evidence. Appellant concludes this
Court should reverse the PCRA court’s order and grant him a new trial. We
disagree.
As a general matter, the Pennsylvania Rules of Evidence presume all
persons are competent to be a witness. Pa.R.E. 601(a). Specifically, Rule
601 provides, in pertinent part:
Rule 601. Competency
(a) General Rule. Every person is competent to be a
witness except as otherwise provided by statute or in
these rules.
(b) Disqualification for Specific Defects. A person is
incompetent to testify if the court finds that because of
a mental condition or immaturity the person:
(1) is, or was, at any relevant time, incapable of perceiving
accurately;
(2) is unable to express himself…so as to be understood
either directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the
truth.
Pa.R.E. 601. This Court has interpreted Rule 601 as follows:
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In general, the testimony of any person, regardless of his
mental condition, is competent evidence, unless it
contributes nothing at all because the victim is wholly
untrustworthy. Thus, in Pennsylvania, [a witness is]
presumed competent to testify, and it is incumbent upon the
party challenging the testimony to establish incompetence.
Above all, given the general presumption of
competency of all witnesses, a court ought not to
order a competency investigation, unless the court
has actually observed the witness testify and still has
doubts about the witness’ competency.
Claims that a witness’ memory has been corrupted by
insanity, mental retardation, hypnosis, or taint go to the
competency of that witness to testify. The capacity to
remember and the ability to testify truthfully about the
matter remembered are components of testimonial
competency. The party alleging a witness is incompetent to
testify must prove that contention by clear and convincing
evidence.
Commonwealth v. Boich, 982 A.2d 102, 109-10 (Pa.Super. 2009) (en
banc), appeal denied, 607 Pa. 689, 3 A.3d 669 (2010) (internal citations and
quotation marks omitted) (emphasis added).
Instantly, in addressing this issue, the PCRA court reasoned, in pertinent
part, as follows:
The trial court observed [Victim] testify at trial and, a few
months after the trial at [Appellant]’s post-sentence motion
hearing, this [c]ourt affirmed [Victim]’s obvious competency
to testify at trial. At that time this [c]ourt stated, “[Victim]
testified he identified [Appellant] as the shooter. When his
testimony was presented, there was no indication in the
eyes of the [c]ourt that he was incompetent or unable to
reason, or had any sort of cognitive defect that rendered
him unable to testify or to be incompetent. The jury could
rely upon his testimony.” The [c]ourt, at that time, had the
benefit of recently and directly witnessing [Victim]’s
testimony and found that [Victim] satisfied the factors for
determining competency laid out by the Pennsylvania
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Supreme Court: “(1) the capacity to perceive an event with
accuracy; (2) the ability to remember; (3) the ability to
understand questions and communicate a response; and (4)
a consciousness of the duty to tell the truth.”
The [c]ourt also had the benefit of the testimony of Dr.
Stephen Dilts, a defense witness, who testified at length at
trial regarding the potential defects in [Victim]’s reasoning
caused by [Appellant]’s infliction of a gunshot wound to
[Victim]’s brain. Dr. Dilts, a qualified psychiatrist, testified
before the [c]ourt and jury regarding [Victim]’s possible loss
of perception and memory. This [c]ourt, with the insight
provided by the psychiatrist’s expert testimony, found
[Victim] competent to testify. Under Rule 601(b), a
determination of a witness’s competency is ultimately in the
hands of the trial court. Because there was not a reasonable
probability that this [c]ourt would have found [Victim]
incompetent to stand trial even if his trial counsel had filed
a motion challenging his competence, [Appellant] was not
prejudiced by the choice to not submit such a motion and
his claim is denied.2
2 To eliminate any doubt caused by the revisionist
approach of this PCRA, [Victim] at the time of his trial
presented no indication of lack of competency. He did
have some recollection issues, which were no different
than any other fact witness. [Appellant] repeatedly
confuses the concepts of impeachment regarding
memory accuracy and lack of competency in his PCRA.
The ability to remember is one factor in determining
competency…. Having a flawless memory is not.
(PCRA Court Opinion at 6-7) (internal citations omitted). We see no reason
to disrupt the PCRA court’s reasoning. As the PCRA court explained, the trial
court witnessed Victim’s testimony and had no doubts as to Victim’s
competency. See Boich, supra. Thus, Appellant’s ineffectiveness claim fails.
See Kimball, supra.In his second issue, Appellant argues trial counsel was ineffective for
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failing to consult with an expert witness regarding Victim’s competency.
Appellant alleges trial counsel was aware of Victim’s medical history and
related cognitive and memory issues. Appellant contends that despite this
information, counsel admitted she never reviewed Rule 601, considered filing
a competency motion, or retained the services of an expert witness to evaluate
Victim’s competency prior to trial. Appellant further emphasizes that counsel
admitted at the PCRA hearing that it was an error not to challenge Victim’s
competency or hire an expert witness to evaluate him.
Appellant highlights Dr. Taylor’s PCRA hearing testimony that Victim was
experiencing dementia following the shooting and prior to trial, which
warranted a psychiatric examination to determine whether he was competent
to testify. Appellant asserts that had trial counsel consulted with Dr. Taylor
regarding Victim’s competency prior to trial, there is a reasonable probability
that the trial court would have ordered Victim to undergo a psychiatric
examination or disqualified him as a witness pursuant to Rule 601. Appellant
concludes this Court should reverse the PCRA court’s order and remand for a
new trial. We disagree.
In response to Appellant’s claims, the PCRA court explained:
[Appellant]…argues that his trial counsel was ineffective for
failing to consult with an expert witness [regarding] whether
[Victim] was medically competent to testify as a witness in
this case pursuant to Pa.R.E. 601. … [Appellant]’s trial
counsel had an expert witness testify at trial regarding the
extent and severity of [Victim]’s injuries and their potential
effects on [Victim]’s cognition. Hiring another expert merely
to advise trial counsel on whether to file a competency
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evaluation would have been an unreasonable course of
conduct for trial counsel, a public defender, when the judge
and jury already had the benefit of the testimony of a
qualified expert who had personally interviewed [Victim]
during his recovery before trial.
This case evolved over a continuum of time that began with
the shooting and ended with the trial. The PCRA defense
has repeatedly sought to mix medical facts and brain trauma
conditions that may have existed right after [Victim] was
shot (and then resolved), and to bootstrap those
impairments into creating an argument that a competency
evaluation was needed during judicial proceedings before
[Victim] testified. This argument is built on a foundation of
faulty logic that ignores that [Victim] significantly healed
and recovered his memory prior to trial. This healing and
progress was reflected in the medical testimony at trial. The
fact that the defense counsel did not choose to pursue this
same path of faulty logic is not ineffectiveness—it was good
lawyering, by not pursuing a meritless position.
As part of his PCRA proceedings, [Appellant] hired a forensic
psychologist, Dr. Amy Taylor, to create a report, based on
trial transcripts and a review of [Victim]’s past psychological
and medical evaluations. She was not granted a face-to-
face interview with [Victim]. She sought to analyze
[Victim]’s potential competence at the time of trial from
records created years earlier. [Appellant] argues Dr.
Taylor’s report, created four years after [Appellant]’s trial
concluded, shows that [Victim] should have received a
mental competency evaluation prior to giving testimony at
trial. This is not true. The report was inconclusive at best.
The most the forensic expert could testify to was that, based
on her review of past records, if she had been consulted
prior to the trial, she would have recommended that the
[c]ourt order a psychological examination of [Victim] to
determine whether or not he was medically competent to
testify. Dr. Taylor made it clear that since she was not
personally at the trial and did not have the opportunity to
interview the witness, her conclusions could not be made
with a reasonable degree of psychological certainty. Her
testimony, five years after the trial, does not convince this
[c]ourt, which had the benefit of examining [Victim]
directly, that hiring a second expert prior to trial to expound
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on [Victim]’s competence would have been a reasonable
course of action.
(PCRA Court Opinion at 9-11) (internal citations omitted). We agree with the
PCRA court’s analysis of this issue. Trial counsel had an expert witness testify
at trial concerning Victim’s injuries and their effect on Victim’s memory and
cognition. Appellant is unable to show that trial counsel’s failure to consult
with an additional expert witness concerning Victim’s competency to testify
was unreasonable.1 See Pierce, supra.In his third issue, Appellant argues trial counsel was ineffective for
failing to file a pre-trial motion to suppress Victim’s identification of Appellant
as unduly suggestive. Appellant emphasizes that Victim was shot in the head,
suffered severe brain damage, and was hospitalized for a lengthy period of
time following the September 6, 2011 attack. Appellant avers that police
received information from a third party on May 3, 2012, that Victim named
Appellant as the shooter. Appellant asserts that on May 8, 2012, a police
officer arrived at Victim’s home to find Victim sleeping and disoriented.
Appellant claims the officer showed Victim a photo lineup with Appellant’s
____________________________________________
1 To the extent Appellant alleges trial counsel’s ineffectiveness for failing to
call another expert witness to testify at trial (as opposed to consulting an
expert witness pre-trial), this claim is waived for Appellant’s failure to specify
it in his Rule 1925(b) statement. See Commonwealth v. Castillo, 585 Pa.
395, 888 A.2d 775 (2005) (stating issues not raised in Rule 1925(b) statement
will be deemed waived for appellate review). See also Commonwealth v.
Reeves, 907 A.2d 1 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d
956 (2007) (explaining Rule 1925(b) statement that is not specific enough for
court to identify and address issues may also result in waiver).
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picture in it, but Victim was unable to identify the shooter. Appellant contends
the officer then showed Victim a single enlarged photograph of Appellant and
asked if that was the person who shot Victim; Victim stated it was. Given the
nature of Victim’s injuries and his previous inability to make an identification,
Appellant asserts that the officer’s presentation to Victim of a single
photograph of Appellant was unduly suggestive. Appellant maintains that trial
counsel’s failure to file a motion to suppress Victim’s identification was
objectively unreasonable, and that Appellant was prejudiced by counsel’s
failure to do so. Appellant concludes this Court should reverse the PCRA
court’s order and remand for a new trial. We disagree.
“When…an assertion of ineffective assistance of counsel is based upon
the failure to pursue a suppression motion, proof of the merit of the underlying
suppression claim is necessary to establish the merit of the ineffective
assistance of counsel claim.” Commonwealth v. Carelli, 546 A.2d 1185,
1189 (Pa.Super. 1988), appeal denied, 521 Pa. 609, 557 A.2d 341 (1989)
(citations omitted). Furthermore,
In reviewing the propriety of identification evidence, the
central inquiry is whether, under the totality of the
circumstances, the identification was reliable….
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
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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.
Commonwealth v. Moye, 836 A.2d 973, 976 (Pa.Super. 2003), appeal
denied, 578 Pa. 694, 851 A.2d 142 (2004).
Instantly, the PCRA court addressed this issue, in pertinent part, as
follows:
[Appellant] argues the identification procedure used by the
police was unduly suggestive given the totality of the
circumstances. [Appellant] alleges the suggestiveness
comes from the detective showing [Victim] [Appellant]’s
picture singly, after getting a lethargic response during a full
photographic line-up. [Appellant] claims his trial counsel
was ineffective because she did not try to suppress this out-
of-court identification. The claim is rejected because the
record clearly shows [Victim] had previously identified
[Appellant] verbally before the allegedly suggestive
photographic lineup and there was an obvious independent
basis for the identification. [Victim] testified at trial that he
knew who [Appellant] was through his prior acquaintance
with [Appellant]’s mother, Tanoue…, who he knew lived on
the “South Side” of town. This is part of the independent
basis for [Victim]’s knowledge of [Appellant]’s identity
outside the photo lineup. [Appellant] is correct that the
suggestiveness of an out-of-court identification must be
determined by the totality of the circumstances, but in this
case, the totality does not weigh in his favor.
As the Superior Court noted in [its] opinion rejecting
[Appellant]’s claim that [Victim]’s identification was against
the weight of the evidence, “Two witnesses, [Victim]’s
mother and brother, confirmed that [Victim] recalled who
perpetrated the crime a couple of months after the shooting.
[Victim] thereafter identified Appellant as the shooter, and
he knew the name of Appellant’s mother and where they
lived.” These identifications were prior to and independent
of the allegedly suggestive photo lineup. [Victim] also
identified [Appellant] by name and street to the detective
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who administered the photo lineup five days prior to viewing
the photos. The detective administered the photo lineup…as
an extra measure to ensure the Commonwealth had the
best foundation for its investigation. The Commonwealth
already had sufficient identification evidence from [Victim]
to create an independent basis for an identification even
without the photo lineup. The photos were in fact
surplusage to identify the shooter by the time [Victim] was
shown [Appellant]’s single photo.
The issue before the [c]ourt is whether [Appellant]’s trial
counsel was ineffective for failing to file a suppression
motion regarding [Victim]’s identification of [Appellant].
This [c]ourt finds that such a motion would have been
without merit given the independent basis for [Victim]’s
identification of [Appellant] by reference to his mother and
address. The precedent in this matter is clear that when
there is an independent basis for an identification, with
enough independence to overcome the suggestiveness of a
photo lineup by clear and convincing evidence given the
totality of the circumstances, then the in-court identification
of [Appellant] will be admissible. …
* * *
The factors in this case weigh in favor of finding an
independent basis for [Victim]’s identification of [Appellant].
… The identification’s independent origin negates the
argument that [Victim]’s identification was the result of a
suggestive procedure. The independent basis comes from
[Victim]’s prior encounter with [Appellant] weeks before the
shooting took place, from his having a clear view of
[Appellant] right before he was shot, from [Victim]’s
identification of [Appellant] to his mother and brother before
the photo lineup, and his identification of [Appellant] to the
detective five-days before the photo lineup. Taking the
independent origins of [Victim]’s identification into account,
this [c]ourt holds that it was reasonable for [Appellant]’s
trial counsel to not file a suppression [motion] that would
not have successfully blocked the admission of [Victim]’s
identification.
(PCRA Court Opinion at 12-14; 16-17) (internal citations and footnotes
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omitted). Again, we agree with the PCRA court’s analysis. Here, Victim
provided an independent identification of Appellant prior to the allegedly
suggestive photo identification. Victim identified Appellant by name and street
address, and even identified Appellant’s mother. Thus, any suppression
motion counsel filed based upon the allegedly suggestive photo identification
would have failed, and counsel cannot be deemed ineffective for failing to file
a meritless suppression motion. See Poplawski, supra. Accordingly, we
affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/15/2021
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