Com. v. Banks, A. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ALVIN BANKS, : No. 317 EDA 2019
:
Appellant :
Appeal from the PCRA Order Entered January 16, 2019,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0006388-2012
BEFORE: LAZARUS, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 16, 2020
Alvin Banks appeals the January 16, 2019 order, entered in the Court of
Common Pleas of Philadelphia County, dismissing his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”).1 After careful review, we
affirm.
We take the underlying facts and procedural history in this matter from
our decision on direct appeal, and the PCRA court’s December 31, 2019
opinion.
On May 12, 2012, at around 10:30 p.m.,
Lacey Walerski, one of the complainants,
walked to the Copper Clover, a
neighborhood bar in Port Richmond.
There, Ms. Walerski met her boyfriend,
John Buettler, and they left together
shortly thereafter. As the pair was
1 See 42 Pa.C.S.A. §§ 9541-9546.
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walking home, they stopped at the corner
of Agate Street and Allegheny Avenue, a
well-lighted place across the street from
Northeastern Hospital. As Ms. Walerski
was saying goodnight to Mr. Buettler, an
old, red pick-up truck equipped with a
ladder rack drove up and stopped nearby.
[Appellant] approached with a gun, placed
it to Ms. Walerski’s head, and forced her
and her companion to the ground.
Ms. Walerski noticed that [appellant] had
a distinctive limp as he walked.
[Appellant] demanded that she “give up
all [her] shit”. He took her earrings,
cellular telephone, and handbag.
[Appellant] then pointed the gun at
Mr. Buettler’s head, threatened to kill
him, and demanded his belongings.
[Appellant] stole Mr. Buettler’s wallet,
cellular telephone, and sneakers.
[Appellant] ordered Ms. Walerski and
Mr. Buettler to count to 100 and not look
at him. As [appellant] approached the
truck, Ms. Walerski noticed another man
standing next to the driver’s side door.
The two men entered the truck and drove
away.
After the assailants fled, Ms. Walerski and
Mr. Buettler ran into Allegheny Avenue
and flagged down a police cruiser.
Ms. Walerski was visibly shaken and told
the officers the details of the robbery,
including a description of the truck and
attackers. Ms. Walerski and Mr. Buettler
were driven to the police station, and
eventually were taken to another location
where they positively identified
[appellant] and the driver, later identified
as Tracey Marrow (a.k.a. Yusef
Johnson)[.]
At 11:45 p.m. on May 12, 2012,
Philadelphia Police Officer Michael
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Szelagowski was on routine patrol when
he received a report of a robbery nearby.
Moments later, Officer Szelagowski
observed Ms. Walerski and Mr. Buettler
screaming for help. Ms. Walerski was
“petrified, shaking, [and] very nervous.”
Mr. Buettler was coherent, and did not
appear intoxicated.
Police Officer Danny Wright was also on
patrol that evening when he received a
report of a gun-point robbery where the
assailants had fled in a red truck with
ladder racks. Approximately thirty to
forty minutes after the report,
Officer Wright observed a red truck
disregard a stop sign. Officer Wright
activated his cruiser’s lights and siren, but
the suspect vehicle did not stop for two
blocks. As the truck pulled over, the
passenger alighted and fled on foot.
Officer Wright arrested the driver, who
was subsequently identified as
[appellant]. The passenger, Marrow, was
later arrested by Officer William Nagy and
a 9 millimeter-styled BB gun was
recovered. During Officer Nagy’s pursuit
of the [sic] Marrow, the suspect did not
have a limp. Officers also recovered
Ms. Walerski’s and Mr. Buettler’s personal
items from [appellant], the red truck, and
Marrow.
Detective James Weiss headed the
robbery investigation. He interviewed
both Ms. Walerski and Mr. Buettler, the
officers involved, and prepared the arrest
report for [appellant]. In the report when
describing the post-incident identification
of the assailants, Detective Weiss testified
that he transposed the names of the
suspects. The report incorrectly indicated
Marrow was the perpetrator of the
robbery, while [appellant] was the
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getaway driver. This transposition was
contrary to the witnesses’ statements and
the testimony at trial, and was merely a
scrivener’s error.
Finally, Police Officer Eric Pross testified
that he was at the courthouse for another
matter during [appellant’s] trial.
Officer Pross observed [appellant] in the
hallway outside the courtroom for
approximately twenty minutes and
testified that [appellant] had an “obvious”
limp.
Trial [c]ourt [o]pinion, 02/24/2015 at 2-4 (citations
and footnotes omitted).
Following a three-day trial, [appellant] was found
guilty [of two counts of robbery, conspiracy, and
possessing an instrument of crime.][2] See N.T.
2/28/14 at 13. Following sentencing,[3] [appellant]
filed a timely post-sentence motion, which was denied
by operation of law on September 3, 2014.
Commonwealth v. Banks, 2015 WL 6675503 at **1-2 (Pa.Super. Aug. 21,
2015) (unpublished memorandum).
This court affirmed the judgment of sentence on August 21, 2015. See
id. On February 29, 2016, the Supreme Court of Pennsylvania denied
appellant’s request for leave to appeal. Commonwealth v. Banks, 132 A.3d
456 (Pa. 2016) (parallel citation omitted).
2 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, and 907(a), respectively.
3 The trial court sentenced appellant to an aggregate term of 10 to 30 years’
imprisonment.
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On August 29, 2016, appellant filed the instant, timely PCRA petition.
The PCRA court appointed counsel, who filed an amended petition on
March 16, 2018. On June 14, 2018, counsel filed a supplemental amended
PCRA petition. On November 20, 2018, the Commonwealth filed a motion to
dismiss. Following oral arguments, the PCRA court filed a notice of intent to
dismiss pursuant to Pa.R.Crim.P. 907. On January 16, 2019, the PCRA court
denied the petition; the instant, timely appeal followed.4
On appeal, appellant raises the following issues for our review:5
[1.] Whether the Commonwealth committed
prosecutorial misconduct by allowing false
testimony to be presented at trial[?]
[2.] Whether the court erred in not granting relief on
the PCRA [p]etition alleging counsel was
ineffective[?]
[3.] Whether the court erred in denying the
[a]ppellant’s PCRA [p]etition without an
evidentiary hearing on the issues raised in the
amended PCRA [p]etition regarding trial
counsel’s ineffectiveness[?]
Appellant’s brief at 9.
Appellant appeals from the denial of his PCRA petition. Our standard of
review is settled. We review the denial of a post-conviction petition to
determine whether the record supports the PCRA court’s findings and whether
4 In response to the PCRA court’s order, appellant filed a timely concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On December 31, 2019, the PCRA court issued an opinion.
5 For ease of disposition, we have reordered the issues in appellant’s brief.
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its order is otherwise free of legal error. See Commonwealth v. Faulk,
21 A.3d 1196, 1199 (Pa.Super. 2011). To be eligible for relief pursuant to the
PCRA, appellant must establish, inter alia, that his conviction or sentence
resulted from one or more of the enumerated errors or defects found in
42 Pa.C.S.A. § 9543(a)(2). See 42 Pa.C.S.A. § 9543(a)(2). He must also
establish that the issues raised in the PCRA petition have not been previously
litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An allegation of error “is
waived if the petitioner could have raised it but failed to do so before trial, at
trial, during unitary review, on appeal or in a prior state postconviction [sic]
proceeding.” 42 Pa.C.S.A. § 9544(b). Further,
. . . a PCRA petitioner is not automatically entitled to
an evidentiary hearing. We review the PCRA court’s
decision dismissing a petition without a hearing for an
abuse of discretion.
[T]he right to an evidentiary hearing on a
post-conviction petition is not absolute. It
is within the PCRA court’s discretion to
decline to hold a hearing if the petitioner’s
claim is patently frivolous and has no
support either in the record or other
evidence. It is the responsibility of the
reviewing court on appeal to examine
each issue raised in the PCRA petition in
light of the record certified before it in
order to determine if the PCRA court erred
in its determination that there were no
genuine issues of material fact in
controversy and in denying relief without
conducting an evidentiary hearing.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citations
omitted).
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In his first claim, appellant contends the assistant district attorney
committed misconduct by allowing several Commonwealth witnesses to
provide false testimony. (Appellant’s brief at 20-25.) However, appellant
waived this claim. See 42 Pa.C.S.A. § 9544(b) (“For purposes of this
subchapter, an issue is waived if the petitioner could have raised it but failed
to do so before trial, at trial, during unitary review, on appeal or in a prior
state postconviction [sic] proceeding.”). We note, generally, claims of trial
prosecutorial misconduct, other than those enumerated in 42 Pa.C.S.A.
§ 9543(a)(2)(i-viii), are not cognizable under the PCRA. Here, appellant could
have raised his claims of prosecutorial misconduct on direct appeal, but he
failed to do so. Accordingly, we need not address appellant’s first issue
further.
In his second issue, appellant contends he received ineffective
assistance of trial counsel. (Appellant’s brief at 25-34.) Specifically, appellant
maintains trial counsel: (1) requested an improper jury instruction (id. at
25-26); (2) wrongly advised appellant not to testify (id. at 26-29); (3) failed
to object to a surprise witness (id. at 29-30); (4) failed to investigate and call
a potential defense witness (id. at 30-31); (5) failed to litigate a motion to
suppress and to request a charge pursuant to Commonwealth v. Kloiber,
106 A.2d 820 (Pa. 1954) (parallel citation omitted); (appellant’s brief at
30-34). Our standard of review is long settled:
With respect to claims of ineffective assistance of
counsel, counsel is presumed to be effective, and the
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petitioner bears the burden of proving to the contrary.
To prevail, the petitioner must plead and prove, by a
preponderance of the evidence, the following three
elements: (1) the underlying claim has arguable
merit; (2) counsel had no reasonable basis for his or
her action or inaction; and (3) the petitioner suffered
prejudice as a result of counsel’s action or inaction.
With regard to the second prong (reasonable basis),
we do not question whether there were other more
logical courses of action which counsel could have
pursued; rather, we must examine whether counsel’s
decisions had any reasonable basis. We will hold that
counsel’s strategy lacked a reasonable basis only if
the petitioner proves that a foregone alternative
offered a potential for success substantially greater
than the course actually pursued. Our review of
counsel’s performance must be highly deferential. To
establish the third element (prejudice), the petitioner
must show that there is a reasonable probability that
the outcome of the proceedings would have been
different but for counsel’s action or inaction.
Because a petitioner’s failure to satisfy any of the
above-mentioned elements is dispositive of the entire
claim, [a] court is not required to analyze the
elements of an ineffectiveness claim in any particular
order of priority; instead, if a claim fails under any
necessary element of the ineffectiveness test, the
court may proceed to that element first.
Commonwealth v. Brown, 196 A.3d 130, 150-151 (Pa. 2018) (citations,
internal citations, parallel citations, and quotation marks omitted).
Appellant’s first ineffective assistance of counsel contention is trial
counsel was ineffective for requesting the trial court instruct the jury
appellant’s co-defendant entered a guilty plea. (Appellant’s brief at 25-26.)
Appellant maintains because he was charged with conspiracy, this allowed the
jury to infer appellant was guilty of conspiracy. (Id. at 25.) We disagree.
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The record reflects appellant and his co-defendant Marrow were going
to be tried together, and Marrow was present during jury selection. (PCRA
court opinion, 12/31/19 at 8.) Marrow pleaded guilty prior to opening
statements. (Id.) Thus, the trial court believed there needed to be some
explanation to the jury concerning Marrow’s disappearance from the
proceedings. (Id.) During a discussion with counsel, appellant’s counsel
stated the following:
I think just be honest with them. Tell them that
Mr. Marrow has entered a plea in this case and won't
be going to trial, and my client will.
....
[] It in no way implies my client’s guilt, and they
shouldn't consider that at all with respect to him.
Notes of testimony, 2/26/14 at 4. In accordance with this suggestion, prior
to opening statements, the trial court instructed the jury thusly:
I want to tell you something, that yesterday there
were two defendants here. The other defendant was
Tracey Marrow. He has pled guilty. In no way does
that imply anything about [appellant’s] guilty [sic],
the defendant who is before you, and is not to be
considered in any way as to [appellant]. And I want
to make that clear at the beginning and explain why
we have one defendant at this point for trial.
Id. at 8-9. Further, in its closing instructions to the jury with respect to
conspiracy, the trial court stated:
A defendant cannot be convicted because he or she
was present with others or even because he or she
knew what the other or others planned or were doing.
There must be proof of an agreement between the
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defendant and another person or persons to form or
continue a conspiracy.
To be proved guilty of being a conspirator, the
defendant must have intended to act jointly with the
other charge and must have intended that the crime
alleged to be the goal of the conspiracy would be
committed.
Notes of testimony, 2/27/14 at 72.
Initially, we note while appellant complains about this approach to the
problem of explaining his co-defendant’s sudden absence from the
proceedings (see appellant’s brief at 25-26), he fails to offer any alternatives.
(See id.) Further, counsel’s trial strategy was to show Marrow acted alone in
committing the robbery, and appellant was unaware of what he intended to
do. (See notes of testimony, 2/24/14 at 26-27; 2/27/14 at 18.) The fact
Marrow pleaded guilty to the crimes and the jury was aware of the fact aided
in this strategy. Also, the trial court’s instructions, quoted above, clearly
informed the jury they were not to consider Marrow’s guilty plea against
appellant, and appellant’s mere presence with Marrow was insufficient to
convict him of conspiracy. It is settled, “[t]he law presumes that the jury will
follow the instructions of the court.” Commonwealth v. Leap, 222 A.3d 386,
392 (Pa.Super. 2019) (citation omitted), appeal denied, 233 A.3d 677 (Pa.
2020). Appellant has pointed to nothing which would indicate the jury did not
follow these instructions and has utterly failed to show counsel’s decision
prejudiced him. Thus, this claim does not merit relief. See Brown, supra at
150-151.
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In his second contention of ineffective assistance of trial counsel,
appellant argues counsel was ineffective for advising him not to testify.
(Appellant’s brief at 26-29.) Appellant’s argument on this issue consists
largely of a precis of what he would have testified to if called. (Id. at 27-28.)
Appellant fails to discuss what specific advice counsel gave him about not
testifying and merely baldly states, “had the jury been allowed to hear from
himself [sic], it would have been sufficient enough to exonerate him.” (Id.
at 29.)
This claim is belied by the record. The trial court conducted a colloquy
with appellant on the record concerning his right to testify. Appellant stated
under oath he discussed his right to testify with his trial counsel and he had
made his own decision to assert his Fifth Amendment right not to testify.
(Notes of testimony, 2/27/14 at 2-4.) The trial court advised appellant he had
an absolute right to testify, and appellant said he understood. (Id. at 3-4.)
The trial court specifically asked appellant if he had been threatened or
coerced into making the decision not to testify and whether he was making
the decision of his own free will. (Id.) Appellant responded that he was not
being coerced and was making the decision of his own free will. (Id.) “It is
well settled that a defendant who made a knowing, voluntary, intelligent
waiver of testimony may not later claim ineffective assistance of counsel for
failure to testify.” Commonwealth v. Lawson, 762 A.2d 753, 755
(Pa.Super. 2000) (citations omitted), appeal denied, 781 A.2d 141 (Pa.
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2001) (parallel citation omitted). As shown by the above, appellant was
colloquied on the record and made a knowing, voluntary, and intelligent
waiver. Appellant’s claim fails.
In his third contention, appellant argues counsel was ineffective for not
objecting to the testimony of Commonwealth witness, Police Officer Erik Pross.
(Appellant’s brief at 29-30.) In its opinion, the PCRA court described the
circumstances underlying Officer Pross’ testimony thusly:
At the close of the Commonwealth’s case Officer Pross
was called to testify. Officer Pross testified that on
the previous day, February 25, 2019, he been [sic] in
the hallway outside the Courtroom regarding another
matter and during this time he observed the appellant
walking up and down the hallway for approximately
twenty minutes and that during the entire time the
appellant was walking with “an obvious limp.” On
cross-examination, Officer Pross stated that the
assistant district attorney approached him that day
and asked if he had seen the appellant walking the
day before with a limp. He further testified that he
was not told by the assistant district attorney that
other witnesses testified that the appellant walked
with a limp. During Officer Pross’ testimony, the
appellant made a request to demonstrate his walk
before the jury which was granted by this Court.
Appellant rose from [the] counsel table and did a
demonstration of his walk in view of the jury.
PCRA court opinion, 12/31/19 at 12-13 (record citations omitted); see also
notes of testimony, 2/26/14 at 152-156.
Appellant contends counsel should have objected on the basis this
witness was not on the Commonwealth’s witness list, and had appellant known
in advance about this testimony, he would have been able to hire a
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“medical expert” to prove he did not limp.6 (Appellant’s brief at 30.) We
disagree.
The Pennsylvania Rules of Criminal Procedure provide, in pertinent part:
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order
which the Commonwealth might obtain under
this rule, the Commonwealth shall disclose to
the defendant’s attorney all of the following
requested items or information, provided they
are material to the instant case. The
Commonwealth shall, when applicable, permit
the defendant’s attorney to inspect and copy or
photograph such items.
(a) Any evidence favorable to the
accused that is material either to
guilt or to punishment, and is within
the possession or control of the
attorney for the Commonwealth;
(b) any written confession or
inculpatory statement, or the
substance of any oral confession or
inculpatory statement, and the
identity of the person to whom the
confession or inculpatory statement
was made that is in the possession
or control of the attorney for the
Commonwealth;
(c) the defendant’s prior criminal
record;
6 We note appellant did not attach, to his amended PCRA petition or his
supplemental PCRA petition, the names of any medical experts willing to
testify on his behalf and/or any medical records which would substantiate his
claim.
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(d) the circumstances and results of
any identification of the defendant
by voice, photograph, or in-person
identification;
(e) any results or reports of scientific
tests, expert opinions, and written
or recorded reports of polygraph
examinations or other physical or
mental examinations of the
defendant that are within the
possession or control of the
attorney for the Commonwealth;
(f) any tangible objects, including
documents, photographs,
fingerprints, or other tangible
evidence; and
(g) the transcripts and recordings of
any electronic surveillance, and the
authority by which the said
transcripts and recordings were
obtained.
(2) Discretionary With the Court.
(a) In all court cases, except as
otherwise provided in Rules 230
(Disclosure of Testimony Before
Investigating Grand Jury) and
556.10 (Secrecy; Disclosure), if the
defendant files a motion for pretrial
discovery, the court may order the
Commonwealth to allow the
defendant’s attorney to inspect and
copy or photograph any of the
following requested items, upon a
showing that they are material to
the preparation of the defense, and
that the request is reasonable:
(i) the names and addresses
of eyewitnesses;
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(ii) all written or recorded
statements, and
substantially verbatim
oral statements, of
eyewitnesses the
Commonwealth intends
to call at trial;
(iii) all written and recorded
statements, and
substantially verbatim
oral statements, made by
co-defendants, and by
co-conspirators or
accomplices, whether
such individuals have
been charged or not; and
(iv) any other evidence
specifically identified by
the defendant, provided
the defendant can
additionally establish
that its disclosure would
be in the interests of
justice.
Pa.R.Crim.P. 573(B)(1) and (2).
Thus, the disclosure of the names of the Commonwealth’s witnesses is
not mandatory, nor was Officer Pross’ testimony exculpatory. Moreover,
appellant has not claimed he made a pre-trial request for the Commonwealth’s
witness list. Thus, the Commonwealth was not required to turn over his name
to the defense. See Commonwealth v. Woodell, 496 A.2d 1210,
1212-1213 (Pa.Super. 1985) (reversing grant of sanctions on Commonwealth
for failing to disclose various information, including witness list, where
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evidence was not exculpatory, disclosure was not mandatory, and defense
failed to make specific pre-trial discovery request). Thus, there was no basis
for counsel to object to Officer Pross’ testimony on this ground. We will not
fault counsel for failing to make a frivolous objection. See Commonwealth
v. Perez, 103 A.3d 344, 350 (Pa.Super. 2014), appeal denied, 116 A.3d
604 (Pa. 2015) (parallel citation omitted). This claim lacks merit.
In his fourth contention, appellant contends trial counsel was ineffective
for failing to investigate and call potential defense witness Lenora Smith.
(Appellant’s brief at 30-31.) Appellant states, without explanation, Smith was
in possession of the clothing appellant wore on the night he was arrested and
this would show, “the identification of the clothing worn by the assailant was
not the clothing of [a]ppellant.”7 (Id. at 30.)
To prove that trial counsel provided ineffective
assistance for failing to call a witness, a petitioner must
demonstrate:
(1) the witness existed; (2) the witness
was available to testify for the defense;
(3) counsel knew of, or should have
known of, the existence of the witness;
(4) the witness was willing to testify for
7 Appellant’s explanation of the nature of Smith’s testimony has not been
consistent. In his original, pro se PCRA petition, he stated she would testify
she was the owner of the truck used on the night of the robbery, she never
allowed co-defendant Marrow to drive it, and appellant did not have a limp.
(Pro se PCRA petition, 8/29/16 at 10-11.) While appellant claimed to have
attached to the petition a letter from Smith, it is not contained in the certified
record. (Id. at 10.) In his amended PCRA petition, he abandoned this claim
and, instead, advanced the clothing claim, summarized above. (Amended
PCRA petition, 12/13/17 at 23.) Appellant did not attach to this petition a
witness statement from Smith.
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the defense; and (5) the absence of the
testimony of the witness was so
prejudicial as to have denied the
defendant a fair trial.
Brown, supra at 167 (citation omitted).
Here, appellant did not attach any witness certification from
Leonora Smith to either his PCRA, amended PCRA petition, or supplemental
PCRA petition, did not delineate how she came to be in possession of this
clothing or how its appearance would contradict the witnesses’ testimony, did
not state that she would testify at a PCRA hearing, and did not indicate she
was ready and willing to testify at trial. These omissions are fatal to his claim.
See Pa.R.Crim.P. 902(A)(15); Brown, supra. This claim fails.
In his fifth contention, appellant maintains counsel was ineffective for
failing to file a motion to suppress challenging both the stop of the vehicle and
the identification by the victims, and for failing to request the jury be charged
pursuant to Commonwealth v. Kloiber, supra. (Appellant’s brief at 31-34.)
These arguments lack merit.
Appellant argues counsel was ineffective for failing to file a motion to
suppress because the police improperly stopped his vehicle. (Appellant’s brief
at 31.) Appellant claims, without citation to the record, the vehicle he was
driving did not match the description of the vehicle used in the robbery and
he did not run a stop sign. (Id.)
Initially, we note the uncontradicted trial testimony of Officer
Danny Wright, who was on routine patrol when he heard a radio report about
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the robbery. Approximately 30-40 minutes later, he observed a vehicle, which
matched the description of the vehicle used in the robbery, run a stop light.
(Notes of testimony, 2/26/14 at 88-89.) This was sufficient to permit the
police to make an investigatory stop of the vehicle. See Commonwealth v.
Harris, 176 A.3d 1009, 1019 (Pa.Super. 2017 (“Pennsylvania law makes clear
that a police officer has probable cause to stop a motor vehicle if the officer
observes a traffic code violation, even if it is a minor offense.”);
Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.Super. 2011) (holding
there is no “dispute[] that the vehicle in question was subject to a valid stop
as a result of a [] violation of the Pennsylvania Motor Vehicle Code.”), appeal
denied, 25 A.3d 328 (Pa. 2011) (parallel citation omitted). Thus, counsel had
no basis to move to suppress the motor vehicle stop.
Moreover, appellant does not identify any evidence which was allegedly
obtained in violation of his Fourth Amendment rights. (Appellant’s brief
at 31.) He appears to be under the mistaken belief that a successful
suppression motion would have ended the prosecution. However,
the United States Supreme Court has ruled that an
illegal arrest, without more, has never been viewed as
a bar to a subsequent prosecution nor as a defense to
a valid conviction. A person is not a suppressible fruit
and any illegality of detention cannot deprive the
government of the opportunity to prove guilt through
the introduction of evidence wholly untainted by the
police misconduct. The Pennsylvania Supreme Court
has also held that an appellant cannot seek the
suppression of his very person.
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Commonwealth v. Standen, 675 A.2d 1273, 1276 (Pa.Super. 1996)
(citations omitted), appeal denied, 685 A.2d 545 (Pa. 1996) (parallel citation
omitted). An illegal arrest also does not provide a basis for suppressing a
witness’s in-court identification of a defendant, so long as the witness, such
as the witnesses in the instant matter, had an independent basis for the
identification. Commonwealth v. Santiago, 209 A.3d 912, 929 (Pa. 2019).
Thus, as appellant has failed to show he was prejudiced by counsel’s failure
to file a motion to suppress the automobile stop, this claim fails. Brown, 106
A.3d 150-151.
Appellant also claims counsel should have moved to suppress the
identifications as unduly suggestive. (Appellant’s brief at 32-33.) He argues
the victims could not have identified him because they were lying on the
ground during the robbery. (Id. at 32.) He further claims the post-arrest
show-up was unduly suggestive. (Id. 32-33.)
The PCRA court disposed of this claim as follows:
In Pennsylvania, whether a defendant is entitled to a
pre-trial suppression of an identification as unduly
suggestive and therefore violate of due process is
determined by evaluating the totality of the
circumstances. Commonwealth v. Pierce, 786 A.2d
203, 217 (Pa. 2001)[, abrogated on other grounds
by Commonwealth v. Grant, 813 A.2d 726 (Pa.
2002)]. The following factors are to be considered in
determining the admissibility of identification
evidence: “the opportunity of the witness to view the
perpetrator at the time of the crime, the witness’s
degree of attention, the accuracy of his prior
description of the perpetrator, the level of certainty
demonstrated at the confrontation and the time
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between the crime and the confrontation.[”]
Commonwealth v. Moye, 836 A.2d 973, 976
(Pa.Super[.] 2003)[, appeal denied, 851 A.2d 142
(Pa. 2004) (parallel citation omitted)]. Further, our
Supreme Court has held that an on[-]scene
identification made shortly after the occurrence of a
crime does not offend a suspect’s due process rights
but rather enhances the reliability of the identification.
Commonwealth v. Turner, 314 A.2d 496, 498-499
(Pa. 1974).
Appellant argues that the complainants did not have
an opportunity to view the appellant during the
robbery as they were forced to lay “face down.”
However, Ms. Walerski testified that she was able to
see the appellant’s face during the robbery. She
testified that he was wearing a white tee and walked
with a limp. She also described the appellant and the
truck he used to get away following the robbery.
When taken to the location where appellant was
stopped she positively identified both the truck and
the appellant who was still wearing the white tee shirt.
As such, given the totality of the circumstances,
including Ms. Walerski’s observation of the appellant’s
face and white tee shirt, his limp, the truck he fled in
and her identification of the appellant less than one
hour after the robbery support the conclusion that
there would have been no legal basis to support
suppressing the victims’ out-of-court identifications of
the appellant. Therefore, counsel cannot be found to
be ineffective for failing to pursue a meritless motion
to suppress identification.
PCRA court opinion, 12/31/19 at 16-17 (record citations omitted).
We have thoroughly reviewed both the law and the record and see no
basis for disturbing the PCRA court’s finding with respect to this issue. We
cannot fault counsel for failing to file a baseless motion. See Perez, 103 A.3d
at 350.
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In his last contention of ineffective assistance of counsel, appellant
argues counsel was ineffective for failing to request a Kloiber charge.
(Appellant’s brief at 34.) Appellant never explains the basis for his belief he
was entitled to a Kloiber charge. (See id.)
A Kloiber charge is “appropriate ‘where there are special identification
concerns: a witness did not have the opportunity to clearly view the
defendant, equivocated in his identification of a defendant, or had difficulty
making an identification in the past.” Commonwealth v. Reid, 99 A.3d 427,
448 (Pa.Super. 2014) (interior quotation marks omitted).
Here, the PCRA court addressed this issue in the following manner:
. . . the witnesses had an opportunity to view the
appellant during the commission of the robbery and
provided an accurate description and never
equivocated on these identifications. Although
appellant suggests that they did not have an
opportunity to see him as they were told to lay on the
ground, both victims had an opportunity to see the
appellant during file robbery and unequivocally
identified him within a half hour of the robbery and at
trial. Therefore, had counsel requested that [the trial
c]ourt provide the jury with a Kloiber instruction [it]
would have likely denied this request.
PCRA court opinion, 12/31/19 at 18.
Appellant does not point to anything in the record which would have
supported a request for a Kloiber charge, and we see nothing in our review
of the record which demonstrates the witnesses equivocated in any way in
their identification of appellant. We will not fault counsel for failing to make
an unwarranted request for a jury charge. See Commonwealth v. Upshur,
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764 A.2d 69, 77 (Pa.Super. 2000) (holding defendant not entitled to Kloiber
charge where eyewitness “had an unobstructed view of [Upshur] . . . lit by a
streetlight, at a distance of three feet and has consistently identified [him] as
the shooter throughout the investigation”), appeal dismissed as
improvidently granted, 782 A.2d 538 (Pa. 2001) (parallel citation omitted);
see also Perez, 103 A.3d at 350; Reid, 99 A.3d at 488.
In his third and final claim, appellant alleges the PCRA court erred in
dismissing his petition without an evidentiary hearing. (Appellant’s brief at
19-20.) We disagree.
The Pennsylvania Rules of Criminal Procedure provide the PCRA court
with the discretion to dismiss a PCRA petition without an evidentiary hearing
if it is patently without merit. See Pa.R.Crim.P. 907. Because, for the reasons
discussed above, appellant’s ineffective assistance of counsel claims lack merit
and his prosecutorial misconduct claim is procedurally barred, he was not
entitled to an evidentiary hearing. See Miller, supra at 992. Accordingly,
appellant’s third and final claim must fail.
As appellant’s claims are meritless, we affirm the denial of his PCRA
petition without an evidentiary hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/20
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