Com. v. Craig, M. ( 2021 )

J-A13043-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW CRAIG :
:
Appellant : No. 1139 EDA 2020
Appeal from the PCRA Order Entered March 11, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007335-2014
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: Filed: June 3, 2021
Appellant, Matthew Craig, appeals from the March 11, 2020, order
entered in the Court of Common Pleas of Montgomery County, which
dismissed Appellant’s first petition filed under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, following an evidentiary hearing. After
a careful review, we affirm.
The relevant facts and procedural history have been set forth, in part,
by this Court on direct appeal as follows:
On June 12, 2014, Glenn Collins was working at RadioShack,
located at 9 East Lancaster Avenue in Ardmore, Montgomery
County, Pennsylvania. See Notes of Testimony (N.T.), 5/2/16, at
67-68. [At] [a]round 9:00 p.m., shortly before closing, Appellant
and Latif Byard entered the store. Id. at 69. Appellant asked Mr.
Collins whether the store sold Beats headphones and whether a
particular model was in stock. Id. While he looked, Mr. Byard
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* Former Justice specially assigned to the Superior Court.
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locked the front door, and Appellant approached Mr. Collins with
a gun. Id. at 69-70. Appellant ordered Mr. Collins into the
basement and threatened to shoot him. Id. at 69-70, 74.
In the basement, Appellant and Mr. Byard forced Mr. Collins
to lie face down on the floor while they searched his pants and
took his keys, cell phone, and cash. Id. at 74-75. They obtained
the lockbox key from Mr. Collins and filled their bags with cellular
phones, Beats headphones, and video game systems. Id. at 75,
77. Appellant and Mr. Byard left Mr. Collins in the basement and
fled the scene. Id. at 76. Mr. Collins called 911. Id. at 77. The
value of the stolen merchandise totaled $20,635.52. Id.
Police officers responded to the scene and began their
investigation. See N.T., 5/3/16, at 142-45. Mr. Collins was
unable to make a positive identification of Appellant after viewing
a photo array, although he later identified Appellant at the
preliminary hearing and at trial. See N.T., 5/2/16, at 71-73. The
store did not have security cameras. [Id.] at 68. Despite these
setbacks, Mr. Byard was arrested on June 14, 2014, and his cell
phone was seized by police. See N.T., 5/3/16, at 167. He had
exchanged phone calls and Facebook messages with Appellant
prior to the robbery. [Id.] at 177-85.
Appellant was arrested at *** Marston Street on June 19,
2014, and his cell phone [was] seized and examined by police.
[Id.] at 151. This examination revealed that on May 21, 2014,
Appellant [sent] a text message to a contact named “Karl” that
read, “I sold more phones.” Id. at 185-86. Appellant also called
“Karl” before and after the instant robbery. [Id.] at [142-45,]
177-85. Based upon a generated cell phone site map of
Appellant’s number, police were able to determine that on the
night of the robbery, he had initially made connections to cell
phone towers near his house. Id. at 231-274. Appellant then
began making different site connections en route to the scene of
the robbery. Id. Triangulation of Appellant’s cell phone showed
that he was within close vicinity of the RadioShack because his
phone made eight site connections between 8:48 p.m. and 9:10
p.m. Id. at 231-41. The phone did not connect again until 9:29
p.m. Id. at 241. At that time, it “pinged” in the vicinity of ***
Marston Street in Philadelphia, Pennsylvania, the location at which
Appellant was later arrested. Id.
On May 27, 2015, Mr. Byard entered a negotiated guilty plea
to conspiracy to commit robbery. See N.T., 5/27/15, at 1-12. Mr.
Byard testified that on June 12, 2014, he and Appellant committed
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the robbery for which they were charged. Id. at 6. Following the
entry of his plea, Mr. Byard was sentenced to time served to
twenty-three months of incarceration and five years of
consecutive probation. Id. at 12.
Prior to trial, the Commonwealth filed a motion in limine to
introduce a text message Appellant had sent to “Karl” on May 21,
2014, three weeks prior to the robbery, reading “I sold more
phones.” See N.T., 5/3/16, at 136-37. Appellant was also
accused of committing robberies of two Philadelphia RadioShacks
on May 19, 2014, and May 31, 2014, respectively. See Trial Court
Opinion (TCO), 5/22/17, at 19; see also Commonwealth’s Mot. in
Lim., 4/27/16, at 1. Ultimately, the text message was admitted,
but evidence of the Philadelphia robberies was excluded by the
trial court. See TCO at 19. Although Appellant originally objected
to the admission of the text messages as evidence of prior bad
acts, at trial, he requested that the court not read a curative
instruction. See N.T., 5/3/16, at 137, 206.
In May 2016, Appellant’s case proceeded to trial by jury. At
trial, Mr. Byard admitted to committing the Ardmore robbery but
denied Appellant’s involvement. See N.T., 5/2/16, at 110-121.
The Commonwealth impeached Mr. Byard with his prior
testimony. Id. at 117-121. Both Appellant and the
Commonwealth stipulated that phones recovered from Appellant
and his codefendant at the time of their arrests had particular
international mobile equipment identifier ("IMEI") numbers which
belonged to Appellant and Mr. Byard. See TCO at 16.
The jury convicted Appellant of [robbery, theft by unlawful
taking, and two counts of criminal conspiracy1] and acquitted him
of an additional count of robbery. The Commonwealth filed a
notice of intent to seek a ten-year mandatory sentence due to
Appellant’s conviction for a second and subsequent violent
offense. On June 9, 2016, the court sentenced Appellant to two
concurrent terms of ten to twenty years of incarceration.
Appellant filed post-sentence motions, which were denied. [He
then filed a timely direct appeal.]
Commonwealth v. Craig, No. 3663 EDA 2016, *1-4 (Pa.Super. filed
11/16/17) (unpublished memorandum) (footnote added).
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1 18 Pa.C.S.A. §§ 3701(1)(ii), 3921, and 903, respectively.
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On direct appeal, Appellant contended the trial court erred in admitting
into evidence a text massage sent to “Karl” from Appellant which read, “I sold
more phones.” Id. at *5. Appellant specifically contended the message
constituted inappropriate evidence of prior bad acts. Id. Further, Appellant
contended the jury’s verdict was against the weight of the evidence. Id. at
*7. Specifically, he challenged the weight of the evidence based on Mr. Collins’
failure to identify Appellant from the photo array, Mr. Byard’s recantation of
his earlier testimony, and the “heightened” weight placed on Detective Jean
Morrison’s testimony regarding a “cell site map” she had generated for
Appellant’s phone for the night of the robbery. See id. at *8-10. Finding no
merit to Appellant’s claims, we affirmed his judgment of sentence on
November 16, 2017. See id. Thereafter, Appellant filed a timely petition for
allowance of appeal, which our Supreme Court denied on May 2, 2018.
On September 11, 2018, Appellant filed a timely pro se PCRA petition,
and counsel was appointed to represent him. On March 8, 2019, Appellant
filed a counseled amended PCRA petition. On May 13, 2019, the PCRA court
provided Appellant with notice of its intent to dismiss Appellant’s PCRA petition
without an evidentiary hearing, and on May 31, 2019, Appellant filed a
counseled response. Appellant also filed a motion for a PCRA evidentiary
hearing.
On January 29, 2020, the PCRA court held an evidentiary hearing on
Appellant’s PCRA petition. On March 11, 2020, the PCRA court denied
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Appellant’s PCRA petition, and Appellant filed a counseled notice of appeal on
April 29, 2020. All Pa.R.A.P. 1925 requirements have been met.
On appeal, Appellant sets forth the following issues in his “Statement of
Questions Involved” (verbatim):
I. Whether the PCRA Court abused its discretion in denying
Appellant’s request to add an alternate theory for Post-
Conviction relief, on the issue of whether trial counsel
rendered ineffective assistance for failing to file a Motion in
limine to preclude an in-court identification because this
issue is dependent upon a factual issue that this Court has
to decide in determining whether or not there was a proper
identification of Appellant by the store manager prior to
trial?
II. Whether pre-trial counsel rendered ineffective assistance by
failing to file a Motion for line-up prior to the preliminary
hearing, in light of the witness being unable to identify
appellant from a photo array, given the day after the
robbery?
III. Whether trial counsel rendered ineffective assistance by
failing to file a Motion to Suppress an in-court identification
following a suggestive pre-trial identification, or otherwise
object at the time of the in-court identification at trial?
Appellant’s Brief at 4 (suggested answers omitted).
Preliminarily, we must determine whether we have jurisdiction over the
instant appeal. Generally, a notice of appeal must be filed within 30 days after
the entry of the order from which the appeal is taken. Pa.R.A.P. 903(a). Here,
the PCRA court denied Appellant’s PCRA petition on March 11, 2020; however,
Appellant did not file his counseled notice of appeal until April 29, 2020, which
is beyond the thirty-day period provided for in Rule 903(a). However, we
decline to quash the instant appeal.
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On March 16, 2020, the Pennsylvania Supreme Court declared “a
general, statewide judicial emergency until April 14, 2020, on account of
COVID-19.” Supreme Court of Pennsylvania No. 531 Judicial Administration
Docket, Order, 3/16/20, at 1. The order authorized the president judges in
the individual judicial districts to, inter alia, “suspend time calculations for the
purposes of time computation relevant to court cases…as well as time
deadlines[.]” Id. at 2. The Supreme Court extended and expanded the scope
of the judicial emergency in several supplemental orders, directing that the
emergency shall cease on June 1, 2020. Supreme Court of Pennsylvania Nos.
531 & 532 Judicial Administration Docket, Order, 5/27/20.
Pursuant to the Supreme Court’s March 16, 2020, order, the President
Judge of the Montgomery County Court of Common Pleas declared a judicial
emergency. In an order filed on March 16, 2020, the President Judge
indicated:
All statewide procedural and administrative rules involving
time calculations within the 38th Judicial District for the filing of
documents with the court or taking of judicially mandated action
are suspended for the period of time covered by the emergency
declaration. Beginning date March 12, 2020, ending date to be
determined.
38th Judicial District Administrative Order (AD00001-2020), 3/16/20.
Thereafter, on March 31, 2020, the President Judge filed an
administrative order extending the judicial emergency until April 30, 2020.
Accordingly, based on the aforementioned, we decline to quash Appellant’s
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April 29, 2020, notice of appeal as untimely filed. Thus, we turn to a review
of Appellant’s issues.
Initially, we note it is well-settled that in addressing the grant or denial
of post-conviction relief, we consider whether the PCRA court’s conclusions
are supported by record evidence and are free of legal error.
Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 652 (2008). “We
must accord great deference to the findings of the PCRA court, and such
findings will not be disturbed unless they have no support in the record.”
Commonwealth v. Scassera, 965 A.2d 247, 249 (Pa.Super. 2009) (citation
omitted).
In his first issue, Appellant contends the PCRA court erred in denying
his oral request to amend his PCRA petition to include an alternate theory of
relief. Specifically, Appellant contends the PCRA court erred in denying his
oral motion, made at the commencement of the PCRA hearing, to raise “an
additional theory that counsel was ineffective for failing to file a Motion in
Limine to preclude an in-court identification because it became apparent that
a factual issue existed as to whether or not trial counsel knew that [Mr. Collins]
would positively identify Appellant at trial.” Appellant’s Brief at 25 (citing N.T.,
PCRA Hearing, 12/13/19, at 5-13). Appellant argues the amendment of a
PCRA petition is to be liberally allowed, and thus, the PCRA court abused its
discretion in denying his request.
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Appellant is correct that a “judge may grant leave to amend or withdraw
a petition for post-conviction collateral relief at any time” and that
“[a]mendment shall be freely allowed to achieve substantial justice.”
Pa.R.Crim.P. 905(A). However, because the rule states that the judge “may”
allow amendment at any time, the decision to grant or deny such a request is
at the discretion of the PCRA court. See Commonwealth v. Keaton, 615
Pa. 675, 45 A.3d 1050, 1059 n. 3 (2012) (“Although the Rules of Criminal
Procedure permit amendment of a PCRA petition ‘at any time’ and state
amendment ‘shall be freely allowed to achieve substantial justice[,]’
Pa.R.Crim.P. 905(A), it was within the PCRA court’s discretion not to address
[the] eleventh-hour supplemental issues during the hearing.”). Thus, we
must determine whether the PCRA court abused its discretion by denying
Appellant’s request to amend his PCRA petition.
At the commencement of the PCRA evidentiary hearing, the following
relevant exchange occurred:
[APPELLANT’S PCRA COUNSEL]: And with the Court’s
indulgence, the way that I couched that ineffectiveness claim was
whether or not trial counsel should have filed a motion to suppress
the in-court identification.
With leave of Court, I would request that it be an alternative
that also to encompass that issue is whether or not trial counsel
was ineffective for failing to file a motion in limine to preclude an
in-court identification because there is a factual issue that Your
Honor is going to need to decide, and that goes to whether or not
there had been a prior identification of [Appellant] by Mr. Collins
prior to the trial.
THE COURT: [PCRA counsel], why should I allow that at
this point? We have a PCRA petition, we have had an amended
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PCRA petition. This has been scheduled, initially trying to
schedule it in July. We are now in December, and everyone has
come here, and the Court and counsel prepared for the issues
raised in your amended [petition].
So at this late stage, the morning of the hearing, why is that
not prejudicial to the Commonwealth at this point?
[APPELLANT’S PCRA COUNSEL]: Well, Your Honor, we
can keep the issue as framed, but if Your Honor finds that factually
something different from what was decided previously.
Specifically[,] your opinion addressing the issues raised on a direct
appeal made a finding that there had, in fact, been an
identification at the preliminary hearing by Mr. Collins, identifying
[Appellant]. And the issue was raised in [the amended PCRA
petition] in terms of whether or not there should have been a
suppression of his in-court identification at the time of trial. And
the testimony, as I anticipate to come out today, is that there was
never an identification made by Mr. Collins of [Appellant] at the
preliminary hearing.
THE COURT: [ADA], do you want to be heard on the
request at this time to amend the allegations in the…PCRA
[petition]?
[ADA]: Yes, Your Honor….The Commonwealth objects to
this for a couple [of] reasons. First of all, we are not conceding
that there was [no] identification at the preliminary hearing. We
do have victim’s sworn testimony, and should the issue come up,
we will have corroborating testimony. So it’s already established
that there was an identification at the preliminary hearing. And—
THE COURT: You are speaking quickly. There was an
identification?
[ADA]: Yes. And so we might hear something about that,
that we are not conceding that, and we would be contesting any
allegations to the contrary that there was no identification.
Moreover, procedurally, the Commonwealth objects to this
attempt to amend the petition.
***
Criminal procedural rules reflect that a PCRA judge may
grant leave to amend and that amendment shall be freely allowed
to achieve substantial justice. Nevertheless, it is clear from the
rule’s texts that leave to amend must be sought and obtained and,
hence, amendments are not self-authorizing. Thus, for example,
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a petitioner may not simply amend the pending petition with a
supplemental pleading. Rather, Rule 905 explicitly states, an
amendment is made only by direction or leave of the PCRA court.
The petitioners may not automatically amend their petition in
responsive pleadings.
Now that we are here the day of the hearing and there is an
attempt to amend the petition, it’s completely inappropriate….So
at this late stage, even if some of this equivocal testimony does
come out, which is rebutted by the record and the findings of the
jury and the facts in the record as the trial court and Superior
Court articulated, which would be corroborated by some testimony
from the Commonwealth, it’s just completely prejudicial, and we
would object to it.
[APPELLANT’S PCRA COUNSEL]: Your Honor, if I may,
there is an important fact that I think Your Honor needs to be
aware of, and I believe that we are in a stipulation of this fact.
The Public Defender’s Office has misplaced the file of [Appellant].
So in drafting and preparing his PCRA [amended petition], I was
limited to what is filed of record in the pleadings themselves. And
the critical issue would be contained within a report that would
have been prepared by the Public Defender,…who conducted the
preliminary hearing. There were no notes of testimony taken from
the preliminary hearing.
I was under the impression there was no report. The Public
Defender’s Office lost the file, and [the Public Defender] showed
up today pursuant to the subpoena, and he has located his report.
And in his report, he documents that there was no identification
of the defendant at the time of the preliminary hearing. I did not
come into knowledge of that fact until this morning when I spoke
to [the Public Defender].
And the rule which was just cited says that a PCRA petition
can be amended at any time and shall be freely allowed to achieve
substantial justice.
The reason the PCRA [issue] was couched in terms of
whether or not trial counsel was ineffective, in failing to file [a]
motion to suppress the in-court identification, was that there was
a presumption that there had, in fact, been an identification of
[Appellant] prior to trial.
The evidence, which I think is going to be presented today,
which is a factual decision that Your Honor will have to make, is
whether or not there was, in fact, an identification of [Appellant]
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prior to trial, and if there was, when that identification occurred
because—
THE COURT: Counsel, [the Public Defender] is not unknown
to this Court. He is a regular practitioner here, as are you. This
case was first scheduled in July. You have had many, many—and
you have been appointed far before that and asked for leave of
court for extensions of time to look into other matters. This is not
something that could not have been known before the morning of
trial, morning of this hearing, and at this time, to walk in and add
a claim to your amended, already amended PCRA petition is unfair
as no one was anticipating it. So your request is denied.
N.T., 12/13/19, at 6-13.
We find no abuse of discretion. As the PCRA court further elaborated in
its Pa.R.A.P. 1925(a) opinion, Appellant had numerous opportunities to raise
the alternate theory, which was based on his claim that Mr. Collins did not
identify him at the preliminary hearing. For instance, Appellant could have
raised the alternate theory of relief in his PCRA petition, his amended PCRA
petition, or his reply to the PCRA court’s order of its intent to dismiss. To the
extent Appellant contends PCRA counsel could not have raised the issue prior
to the PCRA evidentiary hearing, the PCRA court specifically rejected this
argument and found “[t]his is not something that could not have been known
before the morning of…this hearing[.]” Id. at 12. Thus, the PCRA court
denied Appellant’s eleventh-hour attempt to present an alternate theory of
relief to the PCRA court. We find no error or abuse of discretion in this regard.
See Keaton, supra; Sattazahn, supra.In his next issue, Appellant contends trial counsel was ineffective in
failing to file a motion for a line-up prior to the preliminary hearing. In this
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regard, Appellant contends a line-up was necessary because Mr. Collins was
unable to identify Appellant from a photo array, which was shown to him the
day after the robbery. Appellant contends Mr. Collins identified him as a
perpetrator for the first time when he was handcuffed at the preliminary
hearing, which was a highly suggestive situation. Appellant contends his trial
counsel “should have filed a Motion for a line-up to ensure that [Mr. Collins]
would not come in and identify him in person at the time of the highly
suggestive preliminary hearing.” Appellant’s Brief at 37.
Because there is a presumption that counsel provided effective
representation, the defendant bears the burden of proving ineffectiveness.
Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282 (2010). To prevail on an
ineffective assistance claim, a defendant must establish “(1) [the] underlying
claim is of arguable merit; (2) the particular course of conduct pursued by
counsel did not have some reasonable basis designed to effectuate his
[client’s] interests; and (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the proceedings would have been
different.” Id., supra, 10 A.3d at 291 (citations omitted). A failure to satisfy
any prong of the test for ineffectiveness will require rejection of the claim. Id.Here, in rejecting Appellant’s claim, the PCRA court concluded trial
counsel had a reasonable basis for not filing a motion for a line-up prior to the
preliminary hearing. Relevantly, the PCRA court indicated the following:
Appellant [avers] that trial counsel’s failure to request a pre-
trial line-up was ineffective. [Trial] counsel testified that he did
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not file a motion for a line-up because Appellant could not be
identified from a photo array. [N.T., 12/13/19,] at 32. [Trial]
counsel’s report, which was admitted at the PCRA hearing, stated
“Affiant could not ID anybody and does not recognize faces. Given
photo array and could not pick out defendants.” Id. at 35. If a
pre-trial line-up resulted in a positive identification of Appellant as
the robber, then identification testimony would have been
admitted at trial.
PCRA Court Opinion, filed 11/23/20, at 6.
We find no error or abuse of discretion in this regard. At the PCRA
evidentiary hearing, trial counsel specifically testified that, although he
sometimes files a motion for a line-up prior to a preliminary hearing, he had
specific reasons for not requesting one in Appellant’s case. N.T., 12/13/19,
at 32. Relevantly, the following exchange occurred on cross-examination of
Appellant’s trial counsel by the ADA at the PCRA evidentiary hearing:
Q. And you didn’t request [a line-up prior to the preliminary
hearing] in this case?
A. I did not.
Q. Why not?
A. Because he couldn’t pick him out of the photo array.
Q. Why is that significant in your decision to not request a lineup?
A. Because if he had a lineup and [Mr. Collins] picked him out, it
would have—I guess what I thought was, the best evidence had
already happened. [Mr. Collins] couldn’t pick him out of a photo
array. The only thing that could happen is, now he figures who
this guy is and picks him out.
Q. Is it fair to say, you would be giving the victim a second bite of
the apple?
A. That’s exactly what my thought process was.
Id. at 32-33.
It is well-settled that:
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When assessing whether counsel had a reasonable basis for
his act or omission, the question is not whether there were other
courses of action that counsel could have taken, but whether
counsel’s decision had any basis reasonably designed to effectuate
his client’s interest. As the Commonwealth accurately states, this
cannot be a hindsight evaluation of counsel’s performance, but
requires an examination of “whether counsel made an informed
choice, which at the time the decision was made reasonably could
have been considered to advance and protect [the] defendant’s
interests.” Our evaluation of counsel’s performance is “highly
deferential.”
Commonwealth v. Williams, 636 Pa. 105, 141 A.3d 440, 463 (2016)
(citations and quotations omitted).
In the case sub judice, the PCRA court did not err in concluding trial
counsel set forth a reasonable basis for not requesting a line-up prior to the
preliminary hearing. See id. Trial counsel was aware that Mr. Collins had
failed to identify Appellant from a photo array. He concluded that, since it
was already established Mr. Collins could not identify Appellant prior to the
preliminary hearing from a photo array, it would be an unnecessary risk to
give Mr. Collins a second opportunity to identify Appellant prior to the
preliminary hearing via a line-up. We agree with the PCRA court that this was
a reasonable strategy designed to effectuate Appellant’s interest. See id.Thus, we conclude trial counsel was not ineffective on this basis.
In his next issue, Appellant contends trial counsel was ineffective in
failing to file a pre-trial motion to suppress Mr. Collins’ in-court identification
of Appellant as one of the perpetrators. Specifically, Appellant contends Mr.
Collins was only able to identify Appellant as the perpetrator after he saw him
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at the preliminary hearing, where he was handcuffed. Appellant asserts the
basis of the in-court identification was the suggestive identification at the
preliminary hearing and not the actual criminal acts; thus, any in-court
identification by Mr. Collins should have been suppressed. Therefore,
Appellant contends trial counsel was ineffective in failing to file a motion in
this regard.
Assuming, arguendo, Appellant has demonstrated the underlying claim
has arguable merit, and trial counsel had no reasonable basis for his inaction,
we conclude Appellant has failed to demonstrate prejudice. See Ali, supra.Specifically, Appellant has failed to demonstrate that, but for Mr. Collins’ in-
court identification testimony,2 there is a reasonable probability that the
outcome of the proceedings would have been different as it relates to
Appellant’s identity as one of the robbers.
To demonstrate prejudice, the petitioner must show that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have
been different.” Commonwealth v. King, 618 Pa. 405, 57 A.3d
607, 613 (2012) (quotation, quotation marks, and citation
omitted). “‘[A] reasonable probability is a probability that is
sufficient to undermine confidence in the outcome of the
proceeding.’” Ali, 608 Pa. at 86–87, 10 A.3d at 291.
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2 We note the jury was informed that Mr. Collins could not identify Appellant
from a pre-trial photo array. At Appellant’s trial, Mr. Collins testified he got
a “general look” at the perpetrators but that his “eyes were sort of focused
on the gun—for the most part.” N.T., 5/2/16, at 70. However, Mr. Collins
positively indicated that he recognized Appellant as one of the perpetrators.
Id. at 71.
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Commonwealth v. Spotz, 624 Pa. 4, 84 A.3d 294, 312 (2014) (citations
omitted).
Here, aside from Mr. Collins’ identification testimony at trial, which was
vigorously cross-examined by trial counsel, the Commonwealth offered
overwhelming evidence of Appellant’s participation in the robbery. Initially,
Latif Byard entered a negotiated guilty plea as to his participation in the
robbery. N.T., 5/2/16, at 116. During his guilty plea hearing, the transcript
of which the Commonwealth entered into evidence at Appellant’s trial, Mr.
Byard admitted that Appellant threatened the RadioShack store manager, Mr.
Collins, while Mr. Byard acted as a lookout. Id. at 117; N.T., Byard Guilty
Plea, 5/27/15, at 8. Also, Mr. Byard admitted during his guilty plea colloquy
that Appellant left the RadioShack with Beats headphones and 24 various
other electronics equipment. N.T., 5/2/16, at 117. When Mr. Byard recanted
at Appellant’s trial by indicating Appellant, who was his friend, was not present
during the robbery, the Commonwealth extensively cross-examined Mr. Byard
with the use of his guilty plea colloquy transcript. Id. at 117-121.
Furthermore, as the trial court indicated in summarizing the evidence in
its opinion on direct appeal:
Officer David LaRosa responded to the RadioShack following
the robbery. (Id. at 144-45). Officer LaRosa…explained the
Commonwealth’s lack of video surveillance and fingerprint
evidence. Specifically, there was neither security surveillance
inside the RadioShack nor reliable security footage outside the
store, which was corroborated by [Mr. Collins] who was the
manager of the store. (Id. at 145-46, 149). There was only one
(1) fingerprint that was able to be lifted from the scene and it was
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of such poor quality that it was not sent for further analysis. (Id.
at 147).
Nevertheless, Officer LaRosa gave testimony that connected
Appellant to his registered cell phone, which ultimately was used
to determine Appellant’s location at the RadioShack on the date
and at the time of the robbery. In fact, both parties stipulated,
inter alia, to the following: a white iPhone SC, with International
Mobile Equipment Identifier ("IMEI") number *** and phone
number ***-***-0013, was found on and registered to Appellant
when he was arrested on June 19, 2014; and a green iPhone SC,
with IMEI number *** and phone number ***-***-9605, was
found on Co-conspirator Byard when he was arrested on June 14,
2014. (Id. at 225). Throughout Officer LaRosa’s testimony, he
explained that Appellant’s cell phone “pinged” a cell phone tower
in the area near the RadioShack on the day of the robbery, making
calls specifically to contacts labeled “Dad” and “Sister,”
presumably Appellant’s familial relations. (Id. at 149-204,
286)….Additionally, there was evidence that [Appellant made] a
call…before and after the robbery to a contact, “Karl,” as well as
a text [to] “Karl” before the robbery that read, “I sold more
phones.” (Id. at 149-204, 289-90). This communication to “Karl”
from Appellant’s phone was admitted into evidence to prove
Appellant’s intent, motive, and plan in robbing the RadioShack of
cell phones and other expensive electronic merchandise, i.e., to
sell them for profit.
Jean Morrison, a detective with the Montgomery County
Detective Bureau - Major Crimes Unit who specializes in cellular
site mapping, testified as an expert witness for the
Commonwealth. (Id. at 218-21). According to Detective
Morrison, cell mapping entails gathering call detail records;
including dates, times, and locations of connections to a particular
cell site (or “cell tower”); from the cell phone carrier (in this case,
AT&T) and constructing a map of those listings. (Id. at 219, 221).
She also explained that each cell phone has a unique identifier
known as an IMEI. (Id. at 223). With this information, one is able
to determine the general location of a cell phone because a cell
phone must be in the vicinity of the cell site in order to
communicate with it. (Id. at 227). Detective Morrison created a
cell site map for Appellant's phone (phone number ending in 0013)
for June 12, 2014, the day of the robbery. See Exhibit C. The map
is limited to the time period surrounding the robbery, i.e., between
8:00 P.M. and 10:36 P.M., and contains red circles (representative
of a half-mile radius) illustrating site connections, which are the
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AT&T cell sites in the general area of the RadioShack that were
used during the relevant time frame by Appellant’s cell phone.
(Id. at 237-38, 254). The cell site map revealed the travel pattern
of Appellant’s cell phone during the relevant time period. (Id. at
239). Specifically, a zoomed-in version of the map shows
Appellant’s cell phone initially made site connections around his
home (*** North 45th Street, Philadelphia, Pennsylvania),
between 8:00 P.M. and 8:34 P.M., then began making different
site connections en route to the RadioShack between 8:43 P.M.
and 9:10 P.M. (Id.). Notably, at 8:48 P.M., there is a triangular
area on the map indicating three (3) site connections were made
at that time; Detective Morrison explained that AT&T displays
every site connection made during the entirety of a
communication, i.e., a text or call, and thus, one can see that
when Appellant’s cell phone was in use at 8:48 P.M. it made
connections to the three (3) different cell sites. (Id. at 242-43).
Appellant’s cell phone ended up in the close vicinity (within 3,500
feet) of the RadioShack because eight (8) site connections were
made there between 8:48 P.M. and 9:10 P.M. (Id. at 244). After
9:10 P.M., the cell phone begins to make site connections away
from the RadioShack, ultimately ending up within 2,700 feet of
*** Marsden St., Philadelphia, Pennsylvania (place of Appellant’s
arrest one (1) week after the robbery) where thirteen (13) site
connections were made between 9:46 P.M. and 10:36 P.M. (Id.
at 239-42, 244-45). From this mapping evidence, one can see
Appellant’s phone was in the area of the RadioShack at the time
the robbery occurred (approximately between 8:57 P.M. and 9:08
P.M., when [Mr. Collins] made the 911 call), and that the phone
left the area and ended up at Appellant’s place of arrest. (Id. at
284-86).
Trial Court Opinion, filed 5/22/17, at 16-18 (footnotes omitted).
Based on the aforementioned, we agree with the PCRA court that,
absent Mr. Collins’ identification testimony, there is no reasonable probability
that the outcome of Appellant’s trial would have been different. Spotz,
supra. Accordingly, Appellant has failed to meet the prejudice prong of the
ineffectiveness test, and, thus, he is not entitled to relief on his ineffective
assistance of counsel claim. See id.- 18 -
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For all of the foregoing reasons, we affirm.
Affirmed.
Judge Dubow joins the memorandum.
P.J.E. Bender concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/21
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