Com. v. Ross, D.

J-S24006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVONN ROSS
Appellant No. 217 WDA 2016
Appeal from the PCRA Order January 7, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011234-2006
BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED MAY 5, 2017
A jury convicted Appellant, Davonn Ross, of third-degree murder and
related charges arising from allegations that he had shot and killed Ramon
Yates on June 8, 2006. At trial, the Commonwealth impeached a juvenile
eyewitness with his taped, prior inconsistent statement to police
investigators. In his timely, first petition pursuant to the Post Conviction
Relief Act (“PCRA”), Ross asserted that his trial counsel, Lisa Middleman,
Esquire, was ineffective when she failed to challenge the competency of the
juvenile witness. The PCRA court dismissed Ross’s petition without a
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*
Former Justice specially assigned to the Superior Court.
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hearing, after permitting his court-appointed counsel to withdraw from the
case.1
On appeal,2 Ross argues that the PCRA court erred in dismissing his
petition, and that PCRA counsel was ineffective in filing a no-merit letter. We
conclude that Ross did not establish that he was prejudiced by Attorney
Middleman’s failure to challenge the juvenile witness’s competency, albeit
through reasoning that differs from the PCRA court’s, and therefore affirm.
At Ross’s trial, the Commonwealth presented a significant amount of
circumstantial evidence linking Ross to the murder of Yates. It also called
two juvenile eyewitnesses to the crime to testify. However, both witnesses
were uncooperative on the stand, claiming to have no specific recollection of
the event. See N.T., Jury Trial, 1/29-2/2/08, at 195-202, 207-210. As a
result, the Commonwealth sought to introduce the witnesses’ recorded
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1
The PCRA court granted withdrawal after it found that counsel had
complied with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Upon the filing of this appeal, the PCRA court appointed new counsel to
represent Ross on appeal. However, following a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988), Ross waived his right
to appointed appellate counsel. He is proceeding pro se.
2
Ross’s appeal was docketed more than thirty days after the entry of the
order dismissing his PCRA petition. However, he was incarcerated at the
time, his notice of appeal is dated February 2, 2016, and the time stamp on
the envelope attached to his filing has a date of February 5, 2016. Thus, we
conclude that Ross’s appeal was timely filed pursuant to the prisoner
mailbox rule. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa.
1997).
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interviews with police investigators as prior inconsistent statements of a
witness pursuant to Pa.R.E. 803.1. The recorded statements of both
witnesses explicitly identified Ross as the individual who shot and killed
Yates. See N.T., Jury Trial, 1/29-2/2/08, at 319, Appendix A, at 2-3. Under
Rule 803.1, the jury was allowed to consider these recorded statements, not
just as evidence regarding the credibility of the witnesses, but also as
evidence that Ross killed Yates. See Commonwealth v. Buford, 101 A.3d
1182, 1201 (Pa. Super. 2014), appeal denied, 114 A.3d 415 (Pa. 2015).
The first eyewitness, J.W., was ten years old at the time of the
shooting and twelve at the time of trial. Ross asserts that his trial counsel
was ineffective in failing to request that the trial court determine J.W.’s
competency before allowing the Commonwealth to use his prior inconsistent
statement.
We review challenges to an order dismissing a petition under the PCRA
to determine whether the order is supported by the evidence of record and is
free of legal error. See Commonwealth v. Halley, 870 A.2d 795, 799 n.2
(Pa. 2005). The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record. See Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
Counsel is presumed effective; thus, an appellant has the burden of
proving otherwise. See Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.
Super. 2004). “In order for Appellant to prevail on a claim of ineffective
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assistance of counsel, he must show, by a preponderance of the evidence,
ineffective assistance of counsel which … so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.
Super. 2005) (citation omitted). It is well settled that
[t]o plead and prove ineffective assistance of counsel a
petitioner must establish: (1) that the underlying issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice resulted from
counsel's act or failure to act.
Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012)
(citation omitted).
In assessing a claim of ineffectiveness, when it is clear that an
appellant has failed to meet the prejudice prong, the court may dispose of
the claim on that basis alone, without a determination of whether the first
two prongs have been met. See Commonwealth v. Travaglia, 661 A.2d
352, 357 (Pa. 1995). “To establish the [prejudice] prong, Appellant 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.”
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).
Here, the PCRA court concluded that Ross had not established
prejudice, as J.W.’s live testimony at trial – that he didn’t remember the
shooting – was actually a benefit to Ross. See Notice of Intent to Dismiss,
12/4/2015, at 1. This, however, misconstrues Ross’s argument. Clearly, he
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does not object to J.W.’s live testimony, which was not inculpatory evidence.
It is just as clearly not exculpatory evidence, as it amounts to no more than,
at best, a witness who did not remember the crime. What Ross rightfully
focuses on is the use of the prior recorded statement of J.W., which was
admissible as evidence that he committed the crime.
“A child’s competency to testify is a threshold legal issue that a trial
court must decide.” Commonwealth v. Pena, 31 A.3d 704, 706 (Pa. Super
2011) (citation omitted). The competency of hearsay declarants is governed
by the general rules of testimonial capacity. See Commonwealth v. Ware,
329 A.2d 258, 272 (Pa. 1974). Under these rules, every witness is presumed
to be competent. See Pa.R.E. 601(a). Thus, to succeed on this claim, Ross
bore the burden of establishing, by clear and convincing evidence, that J.W.
lacked the “minimal capacity … (1) to communicate, (2) to observe an event
and accurately recall that observation, and (3) to understand the necessity
to speak the truth.” Pena, 31 A.3d at 707.
It is undisputed that there was no competency hearing for J.W.
Furthermore, it is undisputed that Ross’s trial counsel did not request one.
Just as importantly, the PCRA court did not provide Ross an opportunity,
through a hearing on his petition, to meet his burden of proof on this issue.
However, we conclude that, in any event, Ross cannot establish that he was
prejudiced by counsel’s failure to request a competency hearing for J.W.
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The primary relevance of J.W.’s testimony was the identification of
Ross as the shooter. Even assuming that we would conclude that J.W. was
incompetent and his prior recorded statement should have been stricken,
another eyewitness explicitly identified Ross as the shooter.
Similar to J.W., D.W.3 testified on the stand that he did not remember
the shooting. Thus, the Commonwealth once again played the D.W.’s prior
recorded statement for the jury. In his recorded statement, D.W. stated that
Ross shot Yates. See N.T., Jury Trial, 1/29-2/2/08, at 319. Combined with
testimony that the bullet that killed Yates was consistent with the gun found
behind Ross’s house, see id., at 595-596, as well DNA evidence that Ross
had likely handled the gun found behind his house, see id., at 726-728, we
conclude that the exclusion of J.W.’s testimony at trial was highly unlikely to
have affected the verdict.
Ross highlights the differences between J.W.’s and D.W.’s recorded
statements. Specifically, he argues that J.W.’s statement was the only
evidence of a possible motive that Ross may have had for killing Yates.
However, even accepting this characterization as true does not alter our
conclusion that, had the jury not heard J.W.’s recorded statement, the
verdict would not have been affected. Ross has thus failed to establish that
the failure to request a competency hearing prejudiced him.
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3
Ross has not challenged D.W.’s competency in this appeal.
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Ross’s remaining issue on appeal, that PCRA counsel was ineffective in
filing to withdraw from this case, is predicated on this claim of trial counsel
ineffectiveness. As we have concluded that Ross cannot establish that trial
counsel’s action prejudiced him, his claim of PCRA counsel ineffectiveness
likewise fails. We therefore affirm the PCRA court’s order dismissing Ross’s
petition.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2017
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