J-S37008-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARVIN ALSBROOK : : Appellant : No. 2405 EDA 2022
Appeal from the PCRA Order Entered August 28, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002093-2014
BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 27, 2024
Appellant, Marvin Alsbrook, appeals nunc pro tunc from the August 28,
2020 order denying his petition under the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. Appellant argues that the PCRA court erred in
dismissing the petition without a hearing. We affirm.
This Court previously set forth the factual history, as taken from the trial
court opinion issued on direct appeal:
On July 17, 2013, around 10:00 p.m., [the victim, Ronald Brown,] received a call to deliver food to 1139 Union Street. When he arrived at the row house address, he called the caller ID number of the person who ordered the pizza, and the person responded that he would come downstairs. While the victim was waiting on the porch of the property, he saw [Appellant], with his distinct style of walk, and codefendant Tyreek Torrence walking together down the street towards him from the corner. [Appellant] asked, “What’s up, homie?” while holding a black .38 revolver gun in his left hand. The victim said, “Damn,” and put his keys down, the pizza down, and his hands up by his head “for fear of [his] life.” Codefendant stood there [and] then came up on the steps, J-S37008-23
grabbed the victim by the collar of his shirt, and the victim “went willingly to the ground” and lay on his stomach. [Appellant] went up on the porch, got the keys, and went straight to the driver’s side of the victim’s van. Codefendant went through the victim’s pockets and sock and took $380.00 United States Currency, his wallet, and his phone. The victim pleaded, “Please don’t hurt me. I have two children.” Codefendant replied, “Nobody’s going to hurt you.” Codefendant then got up, got into the passenger side of the van, and [Appellant] drove off toward the Philadelphia Zoo. The victim went around the corner to a friend’s house and called the police.
Commonwealth v. Alsbrook, No. 2298 EDA 2015, unpublished
memorandum at *1-2 (Pa. Super. July 6, 2016) (bracketing in original).
Appellant sought review with our Supreme Court, which denied his petition on
December 7, 2016.
Appellant filed a timely, pro se PCRA petition on August 24, 2017.
Lawrence J. Bozzelli, Esq., was appointed to represent Appellant and filed an
amended petition. Meanwhile, Appellant had filed a motion to proceed pro se.
Motion to Withdraw Counsel, 7/9/18, at 1 (unpaginated). On April 2, 2019,
the PCRA court issued a notice of its intent to dismiss the counseled petition
pursuant to Pa.R.Crim.P. 907, and Appellant filed a timely response objecting
to the notice, citing his outstanding request to proceed pro se.
The PCRA court held a Grazier1 hearing on May 20, 2019, issued an
order permitting Appellant to proceed pro se, and directed Appellant to file a
supplemental petition. Appellant complied, and the Commonwealth filed an
answer, with Appellant’s lodging a response. The PCRA court issued a Rule ____________________________________________
1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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907 notice on July 1, 2020, to which Appellant did not file a response. The
PCRA court dismissed the petition on August 28, 2020. Appellant did not file
an appeal, but his appellate rights were reinstated nunc pro tunc pursuant to
a subsequent PCRA petition. Appellant, who is now represented by counsel,
challenges the denial of his pro se PCRA petition. He raises eight points of
error:
1. Whether the [c]ourt erred when it dismissed the petition without a hearing insofar as numerous disputed issues of fact were at issue in the same?
2. Whether the [c]ourt erred in dismissing the claim that the evidence was insufficient to prove that [Appellant] was the perpetrator of the crimes beyond a reasonable doubt and the conviction therefore was in violation of Due Process?
3. Whether the [c]ourt erred in dismissing the claim that trial counsel was ineffective for failing to consult with, and present the testimony of, an expert witness on eyewitness identification evidence?
4. Whether the [c]ourt erred in dismissing the claim that trial counsel was ineffective for failing to investigate and offer evidence of [Appellant]’s medical condition and his treatment by a nurse for a gunshot which would have made his involvement in the crime unlikely?
5. Whether the [c]ourt erred in dismissing the claim that trial counsel was ineffective for failing to show that the number used to order the pizza was not registered to [Appellant]?
6. Whether the [c]ourt erred in dismissing the claim that trial counsel was ineffective in failing to object to witnesses identifying themselves as members of the Narcotics Enforcement Team [(NET)] and in failing to request a cautionary instruction insofar as NET members testified to knowing [Appellant], thereby implying that he was involved in drug activity in the past?
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7. Whether the [c]ourt erred in dismissing the claim that counsel was ineffective in failing to object to testimony from Detectives Jara and Antoni which violated the Confrontation Clause.
8. Whether the [c]ourt erred in rejecting [Appellant]’s challenge to appellate counsel’s effectiveness insofar as he failed to challenge the admission of hearsay testimony regarding [Appellant’s] location when he was arrested which violated the Confrontation Clause?
Appellant’s Brief at 8-9.2
Our standard of review is well-established:
When reviewing the propriety of an order denying PCRA relief, this Court is limited to a determination of whether the evidence of record supports the PCRA court’s conclusions and whether its ruling is free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). This Court will not disturb the PCRA court’s findings unless there is no support for them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014).
Commonwealth v. Hudson, 156 A.3d 1194, 1196–97 (Pa. Super. 2017).
The bulk of Appellant’s claims sound in ineffective assistance of counsel. The
law “presumes counsel has rendered effective assistance.” Commonwealth
v. Mullen, 267 A.3d 507, 512 (Pa. Super. 2021). The PCRA petitioner bears
the burden of establishing counsel’s ineffectiveness. Pennsylvania law
requires the petitioner to prove three prongs: “(1) the underlying claim is of
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2 Appellant’s list of issues presented does not correspond to the argument section of his brief. For example, Appellant begins his brief with the heading “I,” designated as “The [PCRA] court erred in dismissing [Appellant]’s challenge to trial counsel’s effectiveness.” Appellant’s Brief at 19. He then lists sub issue “A,” which argues the expert witness claim designated as issue three in the questions presented. Meanwhile, issue number two, regarding the sufficiency of the evidence to convict, is argued under the separate heading “III,” and is the last issue briefed. For ease of discussion, we have addressed the issues as presented in the statement of questions presented.
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arguable merit; (2) that counsel had no reasonable strategic basis for his or
her action or inaction; and (3) but for the errors and omissions of counsel,
there is a reasonable probability that the outcome of the proceedings would
have been different.” Commonwealth v. Sandusky, 203 A.3d 1033, 1043
(Pa. Super. 2019). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland v. Washington, 466 U.S.
668, 694 (1984). A court need not address the prongs in order, as the failure
to establish any prong precludes relief. Commonwealth. v. Basemore, 744
A.2d 717, 739 n.23 (Pa. 2000) (“Ordinarily, a claim of ineffectiveness may be
denied by a showing that the petitioner’s evidence fails to meet a single one
of these prongs.”).
Appellant’s first issue generically challenges the PCRA court’s decision
to dismiss the petition without holding an evidentiary hearing. A PCRA court
may issue a notice of its intent to dismiss a petition without a hearing if the
judge, after reviewing the petition, the Commonwealth’s answer, and the
record, determines that “there are no genuine issues concerning any material
fact and that the defendant is not entitled to post-conviction collateral relief,
and no purpose would be served by any further proceedings….” Pa.R.Crim.P.
907(1). We discuss those points where relevant to our analysis.
Appellant’s second issue asserts that the evidence was insufficient to
convict him of the crimes beyond a reasonable doubt. We agree with the
Commonwealth that this claim has been waived. The PCRA’s eligibility
provision requires that “the allegation of error has not been previously
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litigated or waived,” 42 Pa.C.S. § 9543(3), and “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 proceeding.” 42
Pa.C.S. § 9544. A challenge to the sufficiency of the evidence can be raised
on direct appeal and the issue is therefore waived. See Commonwealth v.
Rounsley, 717 A.2d 537, 539 (Pa. Super. 1998) (deeming sufficiency of
evidence claim waived for failing to raise issue on direct appeal).
The Commonwealth cited waiver in its answer to Appellant’s petition,
and additionally noted that direct appeal counsel preserved a sufficiency of
the evidence argument in his concise statement but chose not to develop the
issue on appeal. Appellant’s response countered that the Commonwealth
ignored Section 9543(a)(4) of the PCRA, which states that “the failure to
litigate the issue prior to or during trial, during unitary review or on direct
appeal could not have been the result of any rational, strategic or tactical
decision by counsel.” 42 Pa.C.S. § 9543(a)(4). Appellant maintained that
“the Commonwealth does not claim that appellate counsel’s decision was
rational, strategic, or tactical.” Reply to Commonwealth’s Answer, 12/26/19,
at 3.
Appellant’s response ignores the statutory language preceding
subsection (4), which states: “To be eligible for relief under this subchapter,
the petitioner must plead and prove by a preponderance of the evidence all of
the following….” 42 Pa.C.S. § 9543(a). Counsel is presumed effective, and
Appellant must establish that the decision was not rational. By ignoring his
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burden, Appellant did not properly plead his claim for relief. On this basis
alone, the PCRA court did not err in dismissing his petition without a hearing.
Additionally, to the extent that the PCRA court should have charitably
interpreted Appellant’s statement to mean that he intended to call his direct
appeal attorney at an evidentiary hearing to discuss his reasons for
abandoning the claim, we note that Appellant does not request a remand for
that purpose, electing instead to litigate the underlying merits of the
sufficiency of the evidence claim. See Appellant’s Brief at 46-52. However,
he does not establish that prejudice resulted from his counsel’s abandonment
of the sufficiency claim. Specifically, Appellant asserts that “appellate
counsel’s failure [to raise the sufficiency issue] was the functional equivalent
of a denial of appellate review. Under these circumstances, prejudice is
presumed….” Id. at 44. We disagree. When appellate counsel’s acts cause
an actual denial of appellate review (such as by failing to file a requested
notice of appeal) or its functional equivalent (such as by failing to file an
appellate brief), the presumption of prejudice results in a specific remedy:
reinstatement of the right to file a direct appeal. See Commonwealth v.
Ciotto, 555 A.2d 930, 931 (Pa. Super. 1989) (“When a defendant establishes
that counsel’s ineffective assistance denied him entirely his right to a direct
appeal, he is entitled to a direct appeal nunc pro tunc without regard to his
ability to establish the merit of the issues which he seeks to raise on direct
appeal.”). If Appellant maintains that he was presumptively prejudiced, the
proper recourse was to request reinstatement of his direct appeal rights.
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Additionally, counsel’s asserted failures did not deny Appellant appellate
review. Counsel’s decision to focus on the sentencing issue may have
reflected a professional judgment that the sufficiency of the evidence claim
was so weak that its inclusion detracted from a potentially meritorious
sentencing claim. As our Supreme Court has noted, “[c]laims involving
appellate counsel ineffectiveness … involve concerns unique to appellate
practice. Arguably meritorious claims may be omitted in favor of pursuing
claims which, in the exercise of appellate counsel’s objectively reasonable
professional judgment, offer a greater prospect of securing relief.”
Commonwealth v. Lambert, 797 A.2d 232, 244 (Pa. 2001). The following
discussion explains why prejudice is not presumed when counsel chooses to
litigate some issues to the exclusion of others:
We expressly distinguish herein cases like the present where direct appeal counsel’s ineffectiveness waived all the issues that the post-conviction petitioner wished to raise from those cases where direct appeal counsel simply did not raise every issue requested by the criminal defendant. Clearly, in both situations, the criminal defendant has a right to effective representation. However, in the later situation, counsel’s conduct may, in fact, have been effective, despite not raising every issue which the defendant believes is meritorious.
Thus, a PCRA petitioner is entitled to an appeal nunc pro tunc where prior counsel’s actions, in effect, entirely denied his right to a direct appeal, as opposed to a PCRA petitioner whose prior counsel’s ineffectiveness may have waived one or more, but not all, issues on direct appeal. In the latter situation, the PCRA petitioner’s right to a direct appeal was not entirely denied by counsel’s ineffectiveness, and, therefore, he must establish that counsel’s ineffectiveness so undermined the truth-determining process so as to render unreliable the adjudication of guilt or innocence. 42 Pa.C.S.[] § 9543(a)(2)(ii).
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Commonwealth v. Hernandez, 755 A.2d 1, 9 n.4 (Pa. Super. 2000), aff’d
in part, 817 A.2d 479 (Pa. 2003) (citations omitted). Counsel’s decision did
not completely deny Appellant appellate review and therefore Appellant’s
claim of presumptive prejudice is mistaken.
Alternatively, Appellant could not establish prejudice even if he had
presented a proper ineffectiveness claim. Counsel would be ineffective if the
sufficiency claim were so strong that relief was likely; the prejudice inquiry
under these circumstances asks whether the abandoned claim was so much
stronger that no rational attorney would decline to pursue it. Obviously, a
winning sufficiency claim would result in complete discharge and counsel
would have no valid strategic reason for abandoning it in favor of a claim
focusing on sentencing. In other words, this is not a case where counsel chose
to pursue a suppression issue in lieu of another evidentiary error that would
also result in a new trial. We thus examine the merits of Appellant’s sufficiency
claim as if presented on direct appeal to determine if counsel was ineffective.
Cf. Commonwealth v. Halley, 870 A.2d 795, 800 (Pa. 2005) (claim of
appellate counsel ineffectiveness; “Under the circumstances, although [the
a]ppellant’s position before the common pleas court was wanting in terms of
the development which has later occurred on appellate review, we find that it
was within the Superior Court’s prerogative to treat the issue as preserved.”).
Appellant does not challenge any specific elements of the crimes, only
Ronald Brown’s identification of Appellant. Appellant’s Brief at 47 (“As
explained below, the evidence in the case was insufficient to allow the jury to
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conclude that [Appellant] was the perpetrator of the robberies at issue.”).
Appellant describes Brown’s testimony as “unreliable and inconsistent” on this
topic, because it “was too dark and Brown’s opportunity to observe his
assailants was too inhibited” for an accurate identification. Id. at 48.
Additionally, while Brown claimed that he recognized Appellant from the
neighborhood and positively identified him as one of the men who robbed him,
Appellant argues that his testimony is weakened because “he never mentioned
[this] to the 911 operator or to the first responders.” Id. Appellant’s brief
also discusses concepts germane to expert testimony concerning eyewitness
identification, such as the concept that a witness’s ability to make an accurate
identification decreases when a weapon is present, and also where the
subject’s attention is divided between multiple people, as was the case here
since two men accosted the victim. Appellant also asserts that even if he “did
observe [Appellant] in the past, there is a reasonable probability that this is a
case of ‘unconscious transference,’” a phenomenon whereby someone selects
a person from a lineup based on past familiarity. Id. at 49.
We are not persuaded by these arguments. Appellant fails to grapple
with the fact that issues concerning the adequacy of a witness’ identification
go to weight, not sufficiency. In Commonwealth v. Boone, 429 A.2d 689
(Pa. Super. 1981), a group of men robbed three victims. Only one of the
three victims positively identified Boone as the culprit and, on cross-
examination, the victim “conceded that his identification was somewhat
‘fuzzy’” and further stated that Boone ‘looked like’ one of the men who robbed
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him. Id. at 691. We concluded that the evidence concerning identification
was sufficient, as “any uncertainty in [the victim’s] identification of [Boone]
was a matter for the jury in passing on weight and credibility, and did not
render the evidence insufficient to convict.” Id. Similarly, any issues
concerning the reliability of the victim’s identification in this case are not
sufficiency issues.
Appellant’s third and fourth issues involve the failure to call a witness.
The third issue relates to counsel’s failure to present an expert witness on the
subject of eyewitness identifications, while the fourth challenges counsel’s
failure to call a nurse who treated Appellant, which was relevant to his ability
to hold a firearm.
Beginning with the expert witness claim, Appellant argues that trial
counsel should have presented an expert on the subject of eyewitness
identification. In Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014), our
Supreme Court overruled law holding that such evidence was per se barred.
Appellant reasons that because this case rested on the victim’s identification,
there was a need to present expert testimony and counsel was ineffective for
not pursuing that strategy.
We conclude that the PCRA court did not err in dismissing this claim.
Our Supreme Court has explained the arguable merit prong as applied to this
claim requires proof “that an expert witness was willing and available to testify
on the subject of the testimony at trial, counsel knew or should have known
about the witness and the defendant was prejudiced by the absence of the
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testimony.” Commonwealth v. Williams, 141 A.3d 440, 460 (Pa. 2016).
Appellant failed to specify an expert witness who would have been willing to
testify and explain how that testimony would be helpful. While this holding is
sufficient to resolve this issue, we add that Appellant’s argument assumes it
is self-evident that the failure to call an expert prejudiced him following
Walker. We disagree. Appellant appears to interpret Walker as announcing
a per se rule that expert testimony on this topic is always admissible, but the
Court held that the trial court must exercise its discretion:
The absolute prohibition of such expert testimony simply proves too extreme an approach in determining whether relevant testimony should be admitted in this area. A more flexible framework strikes a crucial balance in determining the admission of expert testimony, as well as between protecting a defendant’s rights while enabling the Commonwealth to meet its responsibility of protection of the public. … We now allow for the possibility that such expert testimony on the limited issue of eyewitness identification as raised in this appeal may be admissible, at the discretion of the trial court, and assuming the expert is qualified, the proffered testimony relevant, and will assist the trier of fact. Of course, the question of the admission of expert testimony turns not only on the state of the science proffered and its relevance in a particular case, but on whether the testimony will assist the jury. Trial courts will exercise their traditional role in using their discretion to weigh the admissibility of such expert testimony on a case-by-case basis. It will be up to the trial court to determine when such expert testimony is appropriate. If the trial court finds that the testimony satisfies Frye [v. United States, 293 F. 1013 (D.C. Cir. 1923),] the inquiry does not end. The admission must be properly tailored to whether the testimony will focus on particular characteristics of the identification at issue and explain how those characteristics call into question the reliability of the identification. We find the defendant must make an on-the-record detailed proffer to the court, including an explanation of precisely how the expert’s testimony is relevant to the eyewitness identifications under consideration and how it will assist the jury in its evaluation. The proof should establish the presence of
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factors (e.g., stress or differences in race, as between the eyewitness and the defendant) which may be shown to impair the accuracy of eyewitness identification in aspects which are (or to a degree which is) beyond the common understanding of laypersons.
Walker, supra at 791–92.
While these observations address whether a trial court should permit an
expert to testify, the Court’s analysis illustrates the importance of calling a
witness at a PCRA hearing. If a defendant at trial must clear these hurdles,
the PCRA petitioner must do so as well, and in fact bears the additional burden
of showing how the absence of the testimony prejudiced him. That necessarily
entails an examination of the testimony as presented at a hearing. In
Commonwealth v. Robinson, 278 A.3d 336 (Pa. Super. 2022), wherein this
Court granted a new trial due to counsel’s failure to call an expert witness
under Walker, we concluded that the petitioner had established arguable
merit by locating a witness who “described a scientific model for how humans
create memory … [and] surveyed the five factors listed in Walker, explaining
how they might have affected Officer Fitzgibbon’s identification of Robinson.”
Id. at 343. The expert went “[b]eyond the five Walker factors[,] … also
describ[ing] other variables that can affect identification.” Id. at 344. We
then concluded that Robinson was prejudiced by the failure to present that
testimony.
Appellant declined to proffer similar testimony, even when alerted to the
defect by the Commonwealth’s answer. He therefore failed to establish that
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this claim has arguable merit, and the PCRA court did not err in dismissing
this claim without a hearing.
Turning to the other witness, Appellant alleges that trial counsel was
ineffective for failing to call a nurse to testify to Appellant’s injuries. By way
of background, Appellant testified at trial that he had been treated for a
gunshot wound to the neck close to his spine on May 8, 2013. Appellant then
introduced the medical records from his hospital stay for that wound, which
included discharge instructions. Appellant testified that he “couldn’t move
[his] left side” of his arm and that he “had a quality care nurse” who came to
his house to assist him with cleaning the wound. N.T., 4/10/15, at 104. This
evidence was relevant because Brown testified that Appellant was holding the
firearm in his left hand.
Appellant faults trial counsel for failing to call the nurse to corroborate
his testimony that he could not have held a gun in his left hand. In fact, he
did not name the witness. As with the expert witness claim, Appellant’s failure
to identify the witness is fatal to his claim. Commonwealth v. Selenski,
228 A.3d 8, 17 (Pa. Super. 2020) (concluding that PCRA court properly denied
failure to call witness claim where the witness “did not testify at [the
a]ppellant’s PCRA evidentiary hearing, [the a]ppellant did not offer an affidavit
from Mr. Weakley indicating he would have been willing to testify for the
defense, and [the a]ppellant has pointed to no other evidence establishing
that Mr. Weakley would have been willing to testify for the defense”). Again,
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the PCRA court did not err in denying this claim without holding an evidentiary
hearing.3
Appellant’s next issue alleges that trial counsel ineffectively failed to
identify the owner of the phone number used to call the pizza delivery. Recall
that the testimony from the victim established that, when he arrived to deliver
the food, he called the phone number supplied. The recipient said he would
come downstairs. Shortly thereafter, Appellant and his co-defendant
approached the victim. Appellant maintains that counsel ineffectively failed
to determine who owned the phone number in question.
This claim of PCRA court error is meritless. Appellant cannot establish
prejudice, as we agree with the Commonwealth that “[Appellant] was not
linked to the crime through the telephone number….” Commonwealth’s Brief
at 28 (emphasis omitted). Even if we assume that Appellant could definitively
establish that he did not own the phone number, the jury could still have
concluded that Appellant’s co-defendant or some other unnamed participant
called the phone. Alternatively, the jury could conclude that Appellant and his
co-defendant decided to rob Brown on a purely opportunistic basis, i.e., the
3 Even if Appellant proffered a witness who could have testified at a PCRA hearing, it is doubtful that Appellant could establish prejudice. As the PCRA court noted, the medical records introduced at trial indicated that Appellant could return to normal activities on May 8, 2013. PCRA Court Opinion, 11/9/22, at 14. The robbery occurred July 17, 2013. Appellant does not state how long he received care from the nurse and, if he stopped treatment as of May 8, 2013, the nurse’s testimony would not be particularly relevant as to events occurring two months later.
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pizza delivery was legitimate. We point out that “[i]t is not enough for the
defendant to show that the errors had some conceivable effect on the outcome
of the proceeding. Virtually every act or omission of counsel would meet that
test, and not every error that conceivably could have influenced the outcome
undermines the reliability of the result of the proceeding.” Strickland, supra
at 693 (citation omitted).
Appellant’s next claim involves the fact that the Commonwealth called
several police officers who, generically speaking, testified that they knew
Appellant from their police duties and attempted to locate Appellant after
Brown positively identified him. Several of these officers stated, when asked
by the Commonwealth how they are employed, that they were members of
their department’s narcotics unit. Appellant argues that there was no reason
for the Commonwealth to have the officers indicate their specific job duties.
He further submits that the jury was left with the impression that Appellant
must have been involved in the drug trade.
Counsel cannot be deemed ineffective for failing to object because he
did, in fact, object to those references. As briefly acknowledged in Appellant’s
brief, counsel asked the court to exclude those references. During a
discussion before the jury was brought in, the Commonwealth stated, “Your
Honor, I don’t know if there was a ruling[;] counsel in the back indicated that
he did not want the officers to identify themselves as [narcotics] [o]fficers….”
N.T., 4/10/15, at 10. The trial judge stated “their jobs are their jobs” and
overruled the objection. Id. at 11. Appellant did not seek review of that issue
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on direct appeal and does not explain how trial counsel can be deemed
ineffective when he sought to exclude this evidence.
Appellant’s next two claims both involve evidence elicited by the
Commonwealth in connection with efforts to apprehend Appellant, and we
address them together. Detective Gregory Jara testified that his job duties
included attempting to serve arrest warrants. He explained that he and his
fellow officers make notes in an “apprehend log” when attempting to serve
warrants. The Commonwealth then asked Detective Jara, over Appellant’s
hearsay objection, to read entries from the log. Detective Jara informed the
jury that on September 18, 2013, the log showed that a police officer spoke
to Appellant’s girlfriend, who in turn provided a cell phone number. He further
testified that the log indicated that on October 8, 2013, someone asked the
FBI to investigate the phone number, and the FBI reported that the number
was “down.” Id. at 49. Additionally, on October 10, 2013, unspecified
members of Appellant’s family reported that they had not recently seen
Appellant. Turning to Detective Antonini’s testimony, he testified that when
Appellant was arrested he had been found hiding under a bed. On cross-
examination, Detective Antonini stated that he learned that information from
other police reports and officers.
Beginning with Detective Jara’s testimony, Appellant argues that trial
counsel, instead of objecting on hearsay grounds, should have specifically
objected that the testimony violated the Confrontation Clause to the United
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States Constitution.4 We conclude that Appellant was not prejudiced. The
Commonwealth properly introduced evidence establishing that Appellant
stopped appearing in the neighborhood once an arrest warrant was issued,
and that Appellant failed to appear in court on an unrelated matter, which
resulted in a separate bench warrant. Thus, Detective Jara’s statements were
cumulative of evidence already properly admitted. The same analysis applies
to Detective Antonini, and the case for no prejudice is even stronger since the
witness freely admitted that he had no personal basis for his statement.
Appellant’s final issue also involves testimony that Appellant was found
hiding under a bed when apprehended. Sergeant Kimber Zerweck testified
that he and four other police officers were on assignment when they received
information that Appellant was at a particular house. The five officers
proceeded to that location, and he saw a male run into the property. Sergeant
Zerweck knocked on the door and a woman answered. She denied that
anyone had entered the house and allowed the officers to enter. Sergeant
Zerweck testified that, while he was dealing with another male who was on
4 The trial court overruled Appellant’s hearsay objection on the basis that the
log qualified as a business record. Appellant did not pursue that claim on appeal. The Commonwealth concedes that the log may not have qualified as a business record since that exception does not apply if the records are generated for use in court. With respect to Appellant’s constitutional argument, the Confrontation Clause does not permit the Commonwealth to introduce “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]” Crawford v. Washington, 541 U.S. 36, 52 (2004). We will assume for purposes of our disposition that there is arguable merit to the Confrontation Clause claim.
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site, Officer McCoy5 went to another room. He stated, “Officer McCoy … had
encountered [Appellant] in the room under the bed and he pulled him out.”
N.T., 4/13/15, at 18. The Commonwealth then asked, “And did you see Officer
McCloud [sic] pulling [Appellant] from the bed?” He replied, “I didn’t see him
pulling him out, but he was there at the bed when I saw him.” Id. Appellant
moved to strike the testimony, and the trial court overruled the objection,
stating, “Well, for what it’s worth, he didn’t see it, so overruled.” Id.
Appellant alleges that appellate counsel was ineffective for failing to
pursue this issue on appeal, once again contending that “appellate counsel’s
failure in this regard was the functional equivalent of a denial of appellate
review.” Appellant’s Brief at 44. For this claim, Appellant recognizes that the
applicable remedy would be reinstatement of appellate rights, as he does not
argue that this preserved allegation of error would have resulted in a new trial
on appeal. As set forth supra, Appellant was not denied appellate review. He
has therefore failed to plead and prove his entitlement to PCRA relief.
Alternatively, we conclude that Appellant could not establish that he was
prejudiced by appellate counsel’s failure to pursue the claim on direct review.
Appellant would need to establish the merits of this claim for appellate counsel
to be ineffective, and he has failed to show how the witness’ comment could
possibly warrant a new trial. See Commonwealth v. Ragan, 645 A.2d 811,
827 (Pa. 1994) (noting that the test for “remarks made during the
5 The officer’s first name was not given.
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examination of witnesses” is “whether the unavoidable effect of the contested
comments was to prejudice the jury, forming in their minds fixed bias and
hostility towards the accused so as to hinder an objective weighing of the
evidence and impede the rendering of a true verdict”) (citation omitted). Even
if the jury considered the hearsay for the truth of the matter asserted, whether
Appellant was in fact under the bed is, in our view, an incredibly minor point
since Sergeant Zerweck testified that he saw Appellant in the bedroom. The
probative value of the evidence rests in the fact that Appellant absented
himself from court proceedings, was not seen in the neighborhood following
the robbery, and hid from officers who knocked on the door seeking Appellant.
Whatever prejudice resulted to Appellant from the additional, untested
information that Appellant was under the bed is so minor that we cannot
conclude there is a reasonable probability that the outcome would have been
different if Sergeant Zerweck had refrained from making that comment.
Accordingly, Appellant would not have been entitled to PCRA relief even if this
claim had been properly pled.
Order affirmed.
Date: 2/27/2024
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