Com. v. Zepprinans, D.

J-S03037-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
DALONZO MONTEZ ZEPPRINANS :
: No. 1681 EDA 2017
Appellant
Appeal from the PCRA Order May 4, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011333-2013
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 25, 2018
Appellant, Dalonzo Montez Zepprinans, appeals pro se from the order
entered in the Court of Common Pleas of Philadelphia County dismissing his
first petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. He asserts the PCRA court erred when it rejected his claims
challenging the trial court’s refusal to recuse itself and asserting trial counsel’s
ineffective assistance.1 We affirm.
The PCRA court aptly provides the procedural history and facts of the
case as follows:
Procedural History
____________________________________________
1 At the outset, we note with displeasure Appellant’s attempt to assert bias on
the part of a learned trial judge simply because she is a female jurist. See
infra.
____________________________________
* Former Justice specially assigned to the Superior Court.
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On July 11, 2013, [Appellant] was arrested and charged with
Aggravated Assault and related offenses. On July 16, 2014, after
this Court denied the Appellant’s Motion to Suppress video
evidence, the Appellant elected to be tried on a bench trial. On
July 17, 2014, the [trial court] convicted Appellant of Aggravated
Assault, Firearms Not to Be Carried Without a License (“VUFA”),
Possession of an Instrument of Crime (“PIC”), and Recklessly
Endangering Another Person (“REAP”) and sentenced him to five
to ten years for VUFA, with concurrent sentences of two to four
years for Aggravated Assault, one to two years for PIC, and one
to two years for REAP. After Appellant timely appealed, the
Superior Court affirmed his judgment of sentence on July 6, 2015.
[]
On February 3, 2016, Appellant filed a pro se [PCRA] petition. On
May 16, 2016, PCRA counsel entered his appearance. On July 14,
2016 PCRA counsel filed a no-merit letter pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc) and a motion to withdraw. On August 18, 2016, [the PCRA
court] filed a Notice of Intent to Dismiss under Pa.R.Crim.P. 907.
On August 10, 2016, Appellant filed a response to PCRA counsel’s
Finley letter.[ ] In his letter, Appellant reiterated his pro se petition
claims and alleged that PCRA counsel only communicated with him
once and did not properly address his issues. On September 1,
2016, this Court removed counsel and appointed new PCRA
counsel. On October 13, 2016, Appellant counsel filed an
amended petition.
On October 31, 2016, Appellant filed a Motion to Proceed pro se
and requested a Grazier hearing.[2] On November 16, 2016,
Appellant forwarded a letter to [the PCRA court’s] chambers
stating that, even though his second PCRA counsel filed an
amended petition, PCRA counsel did not address all of Appellant’s
issues. On November 28, 2016, after a Grazier hearing, [the
PCRA court] removed PCRA counsel and permitted Appellant to
proceed pro se.
On December 20, 2016, Appellant filed a pro se amended petition.
On March 7, 2017, the Commonwealth filed a Motion to Dismiss.
On March 27, 2017, [the PCRA court], after finding Appellant’s
____________________________________________
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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claims meritless, filed a Notice of Intent to Dismiss under
Pa.R.Crim.P. 907. On April 19, 2017, Appellant filed a response
to [the trial court’s] 907 Notice [in which he raised the issues now
raised in the present appeal].
Facts
In its July 6, 2015 Opinion, the Superior Court recounted the
relevant facts:
On July 11, 2013 at about 2:30 a.m., Philadelphia
Police Sergeant Francis Rawls responded to a call
regarding a person with a gun at 68th Street and
Limekiln Pike. Rick Miller, the complainant, had
returned to his home and called 911, claiming that a
man named “Lonzo” had shot at him. Miller provided
a description of what the shooter was wearing,
including blue jeans and a white t-shirt. Upon arriving
at the scene, Sergeant Rawls encountered Miller, who
indicated that the shots had been fired in front of
Appellant’s house and pointed out where the house
was located. An unidentified woman permitted
Sergeant Rawls to enter the residence and directed
him to an upstairs bedroom, where Appellant was
discovered, wearing an outfit matching Miller’s
description. Sergeant Rawls secured the property
pending receipt of a search warrant.
Detective Edward Davis interviewed Miller twice.
During the first interview, at about 3:30 a.m., Miller
stated that someone other than Appellant had shot at
him. During a second interview, conducted
approximately 40 minutes after the first interview
concluded, Miller indicated that Appellant was the
shooter and that he had stated otherwise because he
was scared. After the second interview, Detective
Davis applied for, and obtained, a warrant to search
Appellant’s home for ballistics evidence and proof of
residence.
Detective Davis conducted the search at
approximately 8:30 a.m. He recovered a 32-caliber
fired cartridge casing [(“FCC”)] from the outside of the
landing area near Appellant’s porch. Inside, he
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recovered Appellant’s driver’s license and personal
correspondence addressed to Appellant at that
address. While conducting the search, Davis noticed
a monitor split into four views that looked like a
security camera monitor. Two of the views showed a
live feed of the porch and front outside area of the
house, where the shooting was alleged to have
occurred and where the casing was recovered. The
monitor was attached to a digital video recorder
(“DVR”) that Davis also recovered. Video footage
contained on the DVR depicts Appellant firing a
handgun.
Appellant appeared for trial on July 16, 2014, before
the Honorable Barbara A. McDermott. However,
Appellant requested that a suppression motion be
heard even though none had been filed. The court
allowed the defense to raise a suppression motion
orally, in which Appellant argued that the search
warrant obtained by Detective Davis was limited to
ballistics evidence and proof of residency and did not
include the DVR. The trial court permitted the
Commonwealth to present its case, while holding the
suppression motion under advisement. Following
Detective Davis’ testimony concerning the discovery
of the DVR, the court denied the suppression motion
and permitted the detective to testify regarding the
video recording as it was shown in court.
Commonwealth v. Zepprinans, [No. 2407 EDA 2014,
unpublished memorandum at 2-3 (Pa.Super. filed July 6, 2015)].
PCRA Court Opinion, filed May 4, 2017, at 1-3 (footnotes deleted)
Appellant raises the following issues for our review:
I. [DID] THE TRIAL JUDGE [COMMIT] ERROR BY
DENYING APPELLANT’S PCRA [PETITION] ON MAY 4,
2016, WHICH RAISED THE ISSUES OF JUDICIAL
MISCONDUCT AND INEFFECTIVE ASSISTANCE OF
COUNSEL?
II. [DID] THE TRIAL JUDGE [ABUSE] HER POWERS BY
REVIEWING APPELLANT’S PRIOR CRIMINAL
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HISTORY BEFORE TRIAL, AND [DID] SUCH CONDUCT
[AFFECT] DECISIONS MADE DURING APPELLANT’S
TRIAL?
III. [WAS TRIAL COUNSEL] INEFFECTIVE FOR FAILING
TO CALL A MATERIAL EXCULPATORY WITNESS TO
TESTIFY, ESPECIALLY SINCE THAT WITNESS WAS
PRESENT AT TRIAL AND WILLING TO TESTIFY?
IV. [WAS TRIAL COUNSEL] INEFFECTIVE FOR NOT
REQUESTING THE TRIAL JUDGE [TO] RECUSE
HERSELF FOR IMPROPERLY REVIEWING
APPELLANT’S PRIOR CRIMINAL HISTORY PRIOR TO
TRIAL AND [WAS COUNSEL] INEFFECTIVE FOR NOT
ADVISING APPELLANT THAT A RECUSAL COULD BE
REQUESTED?
V. [WAS TRIAL COUNSEL] INEFFECTIVE FOR FAILING
TO RAISE A SUFFICIENCY OF EVIDENCE CLAIM,
EITHER IN A POST VERDICT MOTION OR ON DIRECT
APPEAL?
VI. [WAS TRIAL COUNSEL] INEFFECTIVE FOR NOT
REQUESTING THE SUPPRESSION OF THE SECOND
STATEMENT MADE BY THE ALLEGED VICTIM, WHICH
WAS APPARENTLY MADE UNDER DURESS?
Appellant’s brief at 4-5.
Our scope and standard of review of decisions denying relief pursuant
to the PCRA is limited to examining whether the PCRA court's findings of fact
are supported by the record, and whether its conclusions of law are free from
legal error. Commonwealth v. Chmiel, 173 A.3d 617, 624 (Pa. 2017). “The
PCRA court's credibility determinations, when supported by the record, are
binding on this Court. However, this Court applies a de novo standard of
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review to the PCRA court's legal conclusions.” Commonwealth v. Spotz, 18
A.3d 244, 259 (Pa.2011) (citations omitted).
In his first two issues, Appellant contends the trial judge should have
recused herself from his criminal trial because she had reviewed his prior
record during a pre-trial hearing at which Appellant entertained the
Commonwealth’s offer of five to twenty years’ incarceration in exchange for
his plea of guilty. Specifically, the purpose of the review was to ensure a
knowing and intelligent plea by advising Appellant of his sentencing exposure
should he instead proceed to trial. These issues are waived.
“To be eligible for relief under [the PCRA], the petitioner must plead and
prove by a preponderance of the evidence ... [t]hat the allegation of error has
not been previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3). “[A]n
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
proceeding.” 42 Pa.C.S.A. § 9544(b). “At the collateral review stage,
allegations of trial court error are waived, since they were not raised at the
first opportunity for review.” Commonwealth v. Rush, 838 A.2d 651, 660
(Pa. 2003) (citation omitted).
Here, Appellant could have raised these issues before or during trial but
failed to do so. Therefore, the issues are waived, and he is not eligible for
relief on either basis on collateral review. See 42 Pa.C.S.A. § 9543(a)(3).
Appellant’s remaining claims assert that his trial counsel was ineffective.
Generally, to obtain relief on a claim of ineffective assistance of counsel, a
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petitioner must plead and prove that (1) the underlying claim is of arguable
merit; (2) counsel's performance lacked a reasonable basis; and (3) the
ineffectiveness of counsel caused him prejudice. Commonwealth v. Pierce,
527 A.2d 973, 975 (Pa. 1987). If a petitioner fails to prove by a
preponderance of the evidence any of the Pierce prongs, 527 A.2d at 975,
the court need not address the remaining prongs. Commonwealth v.
Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009).
Counsel is presumed to have rendered effective assistance of counsel.
Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015). We have
explained that trial counsel cannot be deemed ineffective for failing to pursue
a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.Super.
2003) (en banc). “We need not analyze the prongs of an ineffectiveness claim
in any particular order. Rather, we may discuss first any prong that an
appellant cannot satisfy under the prevailing law and the applicable facts and
circumstances of the case.” Commonwealth v. Johnson, 139 A.3d 1257,
1272 (Pa. 2016) (citing Commonwealth v. Albrecht, 720 A.2d 693, 701
(Pa. 1998)).
First, Appellant contends trial counsel ineffectively failed to file a motion
for recusal after the judge, who sat as finder of fact at his non-jury trial, had
reviewed his prior record during a pre-trial hearing. A party seeking recusal
bears the burden of producing evidence to establish bias, prejudice, or
unfairness which raises a substantial doubt as to the jurist's ability to preside
impartially. Commonwealth v. Watkins, 108 A.3d 692, 734 (Pa. 2014)
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(citing Commonwealth v. Hutchinson, 25 A.3d 277, 319 (Pa. 2011)).
Appellant's claim does not meet this standard.
Knowledge of a defendant’s criminal history, alone, does not
automatically disqualify a jurist from hearing a case. It is where, instead,
“circumstances exist showing a continuing or recurring bias against a
particular defendant or a class of cases, the trial judge should be disqualified.”
Commonwealth v. Bryant, 476 A.2d 422, 427 n. 1 (Pa.Super. 1984). See
also Commonwealth v. Boyle, 447 A.2d 250, 252 (Pa. 1982) (“The mere
participation by the presiding judge in an earlier stage of the proceeding
neither suggests the existence of actual impropriety nor provides a basis for
a finding of the appearance of impropriety.”).
Appellant argues that the trial judge allowed her knowledge of his
criminal record, which included sex crimes against children, to skew her
perception of a video the Commonwealth offered to prove Appellant fired
gunshots at the victim. According to Appellant, the video was too dark to
identify either what caused the “flashes” depicted or who was responsible for
them. The judge, sitting as finder of fact, however, stated she had no doubt
from the video that it was Appellant holding the gun. N.T. 7/17/14 at 7.
Moreover, the judge found that the flashes combined with the reaction of
those nearby, who scattered immediately, were consistent with the firing a
gun, and she deemed the victim credible when he testified Appellant fired
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shots at him during this episode.3 By all appearances, Judge McDermott
engaged in an objective assessment of the evidence in making her factual
findings, such that we perceive no indication of bias or partiality in her
determination.
Appellant also points to the trial judge’s pretrial colloquy in anticipation
of Appellant’s guilty plea as evincing her bias against Appellant as a sex
offender. Therein, the court acknowledged Appellant’s “long record”
comprising “a lot of sex cases, sex charges there[,]” as well as a conviction
for endangering the welfare of a child. N.T. 7/16/14, at 7, 10, 11. Subsequent
judicial comments during sentencing reinforce the presence of bias during
trial, Appellant maintains, as the judge stated “I react, and I have to calm
down and do this dispassionately, but I can’t ignore the fact I react to the fact
not only that you had the gun when you shouldn’t have had a gun, but you
were on house arrest.” N.T., 7/17/14 at 36.
From this record, Appellant makes the sweeping accusation that Judge
McDermott was incapable of assessing the evidence in an impartial manner
____________________________________________
3 In the victim’s initial stationhouse statement, he recanted his previous
identifications of Appellant as the person who shot at him. He returned to his
original account 40 minutes later, admitting to investigators he did not tell the
truth in the first statement because he was scared. N.T. 7/16/14, at 58, 79-
83. It was within the exclusive province of the trial judge as finder of fact to
deem the victim’s identifications of Appellant credible despite his recantation,
which he, in any event, disavowed in both his second statement and his trial
testimony. See Commonwealth v. Brown, 52 A.3d 1139, 1168 (Pa. 2012)
(deferring to credibility determinations of fact-finder, who observed witnesses
recant earlier accounts of crime and assert explanations for inconsistent
statements under vigorous cross-examination).
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once she learned of Appellant’s prior sex crimes, primarily because she is a
female jurist:
These are indeed the exact conditions under which any female,
even Judge Barbara McDermott, could possibly, and in this case,
did become emotionally inflamed and biased against the
defendant, Mr. Zepprinans. The trial judge, having full knowledge
of the defendant’s “long record,” many sex charges and
Endangering the Welfare of a Child, developed a bias[ed] opinion
against the defendant, and the fact that the defendant was
convicted on Endangering the Welfare of a Child, would further
raise the ire of anyone with the natural instincts to protect a child,
including Judge McDermott.
Appellant’s brief at 19.
Contrary to Appellant’s argument, the remarks of Judge McDermott
reflect not a biased disposition against Appellant but, instead, proper
contemplation of both the court’s pretrial duty to colloquy a defendant on
possible increased sentencing exposures should he choose trial over a
negotiated plea offer and its post-trial duty to engage in dispassionate
consideration of aggravating factors during sentencing. Neither set of
comments so much as suggests, let alone establishes, that the judge harbored
bias or ill-will while she sat as finder of fact in Appellant’s criminal trial, and
Appellant points to no instance during pre-trial, trial, or sentencing where the
trial judge exhibited a bias. Accordingly, we discern no arguable merit to
Appellant’s ineffectiveness claim based on counsel’s failure to file a motion for
recusal.
Next, Appellant claims trial counsel ineffectively failed to call Tanya
Conover as a defense witness, even though Ms. Conover was present in court
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and, according to her PCRA affidavit, available to testify that “at know [sic]
time [Appellant] was in possession of a gun. At know [sic] time I never seen
[Appellant] shoot a gun.” PCRA Petition, Exhibit A. The following legal
principles apply.
“To be entitled to relief on a claim of ineffectiveness for failure to
call a witness, [an] appellant must demonstrate [that]: the
witness existed, was available, and willing to cooperate; counsel
knew or should have known of the witness; and the absence of
the witness's testimony prejudiced [the] appellant.”
Commonwealth v. Birdsong, [24 A.3d 319, 334 (Pa. 2011)
(citing Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261,
275 (2000)). A PCRA petitioner cannot succeed on such a claim
if the proposed witness' testimony “would not have materially
aided him.
Commonwealth v. Johnson, 139 A.3d 1257, 1284 (Pa. 2016). “A failure to
call a witness is not per se ineffective assistance of counsel for such decision
usually involves matters of trial strategy.” Commonwealth v. Auker, 681
A.2d 1305, 1319 (Pa. 1996).
Appellant contends that counsel’s failure to call Ms. Conover to the stand
prejudiced his defense, for she was a material witness who was “on the porch
when the alleged shooting incident is said to have occurred on July 11, 2013.”
Appellant’s brief at 30. Given the shooting victim’s inconsistent stationhouse
statements as to the identity of the person who shot him, Conover’s testimony
would have aided his defense, Appellant maintains.
The PCRA court observes, however, that Conover’s affidavit stops short
of saying Appellant did not shoot at the victim. Instead, the court opines, the
affidavit is limited to the generic allegation that Conover never saw Appellant
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possess or fire a gun. Significantly, nowhere does Conover say when she saw
Appellant or whether she was present at the scene when shots were allegedly
fired.
When viewed against the backdrop of compelling evidence, the PCRA
court continues, Conover’s proposed testimony as it appears in her affidavit
would not have materially aided Appellant:
The Commonwealth presented compelling evidence that
[Appellant] shot at the victim from his porch. The victim identified
[Appellant] as the shooter.6 When police first encountered
[Appellant] after the shooting, his clothing matched the
description the victim had provided. Surveillance video from the
[Appellant’s] home showed him on the porch at the time of the
shooting. Based on the flashes of light and the [Appellant’s]
movement on the video, the video conclusively established that
he had fired a gun. Finally, police discovered a 32-caliber FCC on
the ground near the porch.
6 Although the victim initially failed to identify [Appellant during
the first part of his stationhouse interview], he stated that he
failed to do so because he was afraid.
PCRA Court Opinion, 5/4/17 at 7-8.
It was Appellant’s burden to demonstrate there was a reasonable
probability that the outcome of his trial would have been different had counsel
called Ms. Conover to testify. Here, the PCRA judge, who had presided over
Appellant’s non-jury trial, observed that she had found incriminating both the
security video and the victim’s testimony, both of which were vigorously
contested at trial. Critically, Ms. Conover’s vague affidavit, devoid of
specificity with respect to time and place, never directly addressed this
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evidence implicating Appellant as the person who fired shots at the victim
from the porch. Under this record, Appellant has failed to show the PCRA
court erred or abused its discretion in dismissing his petition without a hearing,
such that we will not disturb the court’s ruling on this issue.
In Appellant’s next ineffective assistance of counsel claim, he argues
counsel should have raised a sufficiency of the evidence claim either in a post-
trial motion for acquittal or on direct appeal given the Commonwealth’s failure
to prove the identity of the shooter.
When an appellant complains that a conviction is infirm due to lack of
sufficient evidence, we review such claims under the following standards:
The standard we apply when reviewing the sufficiency
of the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note
that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt
may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may
sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and
all evidence actually received must be considered.
Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence
produced is free to believe all, part or none of the
evidence.
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Commonwealth v. Nahavandian, 849 A.2d 1221, 1229–30
(Pa.Super. 2004) (citations omitted). Furthermore, when
reviewing a sufficiency claim, our Court is required to give the
prosecution the benefit of all reasonable inferences to be drawn
from the evidence. Commonwealth v. Robinson, 817 A.2d
1153, 1158 (Pa.Super. 2003), quoting Commonwealth v.
Widmer, [744 A.2d 745 (Pa. 2000)]. However, “the inferences
must flow from facts and circumstances proven in the record, and
must be of such volume and quality as to overcome the
presumption of innocence and satisfy the jury of an accused's guilt
beyond a reasonable doubt.” Id., quoting Commonwealth v.
Scott, 597 A.2d 1220, 1221 (Pa. 1991). “The trier of fact cannot
base a conviction on conjecture and speculation and a verdict
which is premised on suspicion will fail even under the limited
scrutiny of appellate review.” Id.
Commonwealth v. Matthews, 870 A.2d 924, 928 (Pa.Super. 2005).
After a thorough review of the record, we conclude that even if prior
counsel had raised a sufficiency challenge in either a post-trial acquittal
motion or a direct appeal, the challenge lacks merit. Viewed in a light most
favorable to the Commonwealth as verdict winner, the evidence recounted
above proved beyond a reasonable doubt that it was Appellant who aimed a
gun and fired shots at the victim without justification. Specifically, the victim
implicated Appellant in his 911 call, in his complaint to the investigating
officer, during the second part of his stationhouse interview with police, and
on the witness stand at Appellant’s trial. Even if the trial judge had not viewed
the video as corroborative of the victim’s accusation, she would still have been
free to accept the victim’s testimony as sufficient to prove Appellant’s guilt.
See Commonwealth v. Johnson, --- A.3d ----, 2018 Pa.Super. 40, ** 4-6
(holding uncorroborated testimony of a single witness sufficient to sustain
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conviction so long as testimony addresses every element of crime charged);
Commonwealth v. Filer, 846 A.2d 139, 141–142 (Pa.Super. 2004)
(uncorroborated testimony of a victim, if believed by the trier of fact, is
sufficient to convict, despite contrary evidence from the defense)
As discussed, however, the victim’s testimony was substantiated by
Appellant’s home security video depicting Appellant holding an object from
which flashes emanated, causing people to jump around and scatter
immediately from the porch. The following morning, investigators collected a
fired cartridge casing near the porch while executing a search warrant.
Based on this evidence, the court’s finding that Appellant fired shots at
the victim was a reasonable one. Hence, as there is no merit to the underlying
sufficiency challenge Appellant levels, we conclude the PCRA court did not err
when it rejected Appellant’s ineffective assistance of counsel claim as lacking
arguable merit.
Finally, Appellant contends counsel was ineffective for failing to object
to or move to suppress the victim’s second statement implicating Appellant as
the person who shot at him. Specifically, the victim recanted his initial 911
and crime scene accusations of Appellant when he provided his first statement
to police at the stationhouse. Investigators placed the victim in a room and
closed the door for approximately 40 minutes before bringing the victim back
to resume the interview, at which time they recorded the victim’s identification
of Appellant as the shooter.
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According to Appellant, counsel provided ineffective assistance of
counsel when she failed to move for suppression of the victim’s statement as
the product of coercion, particularly since the victim suffered from mental
illness and would have been easily intimidated into giving a false statement
to appease investigators. We disagree.
Generally, to have standing to pursue a suppression motion under
Pa.R.Crim.P. 581, the defendant's own constitutional rights must have been
infringed. Commonwealth v. Enimpah, 106 A.3d 695, 698 (Pa. 2014).
Here, Appellant fails to identify what constitutional right of his was implicated
by the investigators’ manner of interviewing the victim. To the extent that
Appellant, therefore, seeks to base his ineffectiveness claim on counsel’s
failure to invoke the constitutional rights of the victim to be free from such an
interview, he may not prevail.
If, instead, Appellant’s argument is understood as challenging counsel’s
failure to file a motion in limine4 contesting the admission of the victim’s
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4 This Court has stated the following regarding motions in limine:
A motion in limine is used before trial to obtain a ruling on the
admissibility of evidence. It gives the trial judge the opportunity
to weigh potentially prejudicial and harmful evidence before the
trial occurs, thus preventing the evidence from ever reaching the
jury. A motion in limine differs from a suppression motion in that
a suppression motion is designed to preclude evidence that was
obtained in violation of a defendant's constitutional rights, while a
motion in limine precludes evidence that was constitutionally
obtained but which is prejudicial to the moving party.
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allegedly unreliable and prejudicial identification, we would still find his
argument affords him no relief. Appellant’s challenge turns on the credibility
and testimonial capacity of the victim, both of which were the subject of
vigorous cross-examination conducted by trial counsel in her attempt to
expose the victim’s testimonial weaknesses. The trial court nevertheless
found the victim credible, and the notes of testimony provide support for the
court’s determination. Therefore, we may not disturb the credibility
determinations of the court in this regard.
For the foregoing reasons, judgment of sentence is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/18
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Commonwealth v. Reese, 31 A.3d 708, 715 (Pa.Super. 2011) (quoting
Commonwealth v. King, 689 A.2d 918, 921 (Pa.Super. 1997)).
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