Com. v. Dale, L.

• Court: Superior Court of Pennsylvania
• Decided: November 17, 2015
• Docket: 3565 EDA 2014
• Status: Unpublished

Opinion

J-S60021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LOUIS DALE

Appellant No. 3565 EDA 2014

Appeal from the PCRA Order December 2, 2014 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001184-2010

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 17, 2015

Louis Dale appeals pro se from the order entered on December 2,

2014, in the Court of Common Pleas of Delaware County, denying him relief,

without a hearing, on his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. § 9541 et seq. In this timely appeal, Dale raises

eight issues for our review.1 The Honorable Kevin F. Kelly has authored an ____________________________________________

1 The issues are: (1) error in failing to appoint counsel for the instant appeal; (2) error in failing to consider Dale’s subsequent petition raising Alleyne v. United States, 133 S.Ct. 2151 (2013), as a continuation of the instant petition rather than as a separate petition; (3) error in dismissing the petition without a hearing; (4) PCRA counsel ineffectiveness for failing to comply with the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988; (5) PCRA counsel ineffectiveness for failing to develop and investigate Dale’s PCRA claims; (6) pre-trial counsel ineffectiveness for failure to investigate possible defense or to file pre-trial motions, including a motion to suppress; (7) trial counsel ineffectiveness for failure to object to misstatements of (Footnote Continued Next Page) J-S60021-15

exhaustive, 79 page, Pa.R.A.P. 1925(a) opinion that comprehensively

addresses Dale’s issues and which demonstrates the errors and fallacies of

those issues. Accordingly, we affirm on the basis of that sound decision. In

light of the thoroughness of the PCRA court opinion, we refer the reader to

pages 1-10 of that decision for the factual and procedural history. We

simply note that Dale was convicted by a jury of the armed robbery of

Darren Brooks on December 4, 2009, and that the police were led to Dale

due to his suspected involvement in another recent robbery.

Regarding Dale’s substantive claims2:

Issue one, regarding the failure to appoint counsel for this appeal, is

discussed at pages 10-13;

Issue two, regarding Alleyne v. United States, is discussed at pages 13-

23;3 _______________________ (Footnote Continued)

evidence by Commonwealth counsel and failure to call alibi witnesses; and (8) trial counsel ineffectiveness for failure to object to misstatements by Commonwealth counsel during closing argument. 2 We address the claims in the order Dale raised them. The PCRA reordered the issues, addressing issue three, last. Additionally, the PCRA court opinion addresses nine issues rather than eight because the PCRA court broke issue six, regarding claims of pre-trial ineffectiveness into two numbered issues, as there were two lawyers involved in pre-trial activities. 3 Regarding Dale’s claim that his sentence is illegal per the United States Supreme Court decision in Alleyne, Dale has argued he was subjected to a mandatory minimum sentence pursuant to 42 Pa.C.S. § 9712 regarding sentences committed for offenses committed with firearms. The PCRA court, however, correctly noted his mandatory sentence was based upon his status as a recidivist. See 42 Pa.C.S. § 9714(a)(1); Certificate of Imposition of (Footnote Continued Next Page)

-2- J-S60021-15

Issue three, regarding dismissal of the instant petition without a hearing, is

discussed at pages 73-74;

Issues four and five, regarding PCRA counsel ineffectiveness, are discussed

at pages 23-31;

Issue six, regarding the failure to file pre-trial motions and explore defenses,

is addressed at pages 31-49;

Issues seven and eight, regarding the failure to object to misstatements at

trial and in closing argument are addressed at pages 49-72, 75-77.

Our standard of review for the denial of relief of a PCRA petition is well

settled:

On appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Lewis, 63 A.3d 1274, 1278 (Pa.Super. 2013) (citation

omitted).

_______________________ (Footnote Continued)

Judgment of Sentence, 9/28/2010. The trial court conducted a pre-trial colloquy with Dale, regarding his decision to go to trial, that clearly explained the nature of the mandatory sentence he was facing. See N.T. Trial, 7/13/2010, at 3-15. During this same colloquy, Dale stated he was satisfied with counsel’s representation and counsel had done everything requested of him. These statements, although not under oath, support the PCRA court’s conclusions rejecting Dale’s claims of pre-trial ineffective assistance of counsel.

-3- J-S60021-15

Our review of the certified record demonstrates the PCRA court’s

denial of Dale’s petition, without a hearing, is supported by the record and

free from legal error. Accordingly, the order of December 2, 2014, denying

Dale relief is affirmed.

Order affirmed. Parties are directed to attach a copy of the PCRA

court’s June 17, 2015, opinion in the event of further proceedings. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/17/2015

-4- Circulated 10/30/2015 02:48 PM

IN THE COURT OF COlYIMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA CRIMJNAL

COMMONWEAL TH OF PEJ\1NSYL VANIA NO. 1184-10

John F.X. Reilly, Esquire- Deputy District Attorney for the Commonwealth Louis Dale - Pro Se

OPINION

Kelly, J. Date: June 17, 2015

A criminal complaint was filed on or about ·February 4, 2010, by Detective Joseph

Houghton, Yeadon Borough Police Department, charging Louis Dale (hereinafter referred to as

"Defendant" or "Dale"), inter alia, with Robbery' and Possessing Instruments of Crime.2

A preliminary hearing was held on February 19, 2010, before the Magisterial District

Court during which the prosecution moved to amend its criminal complaint to add the allegation

of Criminal Conspiracy' to commit all other already charged offenses. N.T. 2/19/10, pp. 20-22.

After the Commonwealth's presentation of evidence, the presiding Magisterial District Judge

held the Defendant for trial court purposes as to all prosecuted offenses, including the amended

·· Criminal Conspiracy" charge. N.T. 2/19/10, pp. 27-30.

Defendant Dale was formally arraigned before the trial court on or about March 18, 2010,

at which time the Office of the Delaware County District Attorney lodged against him Criminal

1 l 8 Pa.C.S. § 370 l. 2 18 Pa.C.S. § 907. 3 J 8 Pa.C.S. § 903. 4 Id. Circulated 10/30/2015 02:48 PM

Informations averring, inter alia, as follows: Information A - Robbery5 and Information F -

Possessing Instruments of Crime.6 See Criminal Informations.

The Delaware County Public Defender's Office determined that at bar the Defendant was

eligible for its professional services, and Defendant Dale was thus initially represented before the

trial court by Assistant Public Defender, Arthur J. Modesti, Esquire. On May 6, 2010, private

counsel, Scott L. Kramer, Esquire, entered his appearance on behalf of the Defendant and

assumed for the balance of proceedings before this court, including trial and sentencing,

Defendant Dale's stewardship.

A jury trial commenced on July 13, 2010, before this court and concluded the next day

(July 14, 2010). N.T. 7/13/10 and 7/14/10. As to all prosecuted charges/ Information A -

Robbery,8 a felony of the first degree, and Information F - Possessing Instruments of Crime,9 a

first degree misdemeanor, the jury found Defendant Dale guilty. N.T. 7/14/10, pp. 111-16. See

also Jury's Verdict.

Confirming its oral, of-record, notice offered in open court immediately subsequent to the

verdict's recording, the Commonwealth lodged written notice on or about July 28, 2010, further

memorializing, inter alia, its invocation of the Sentences for Second and Subsequent Offenses

mandatory minimum sentencing provisions material to Information A - Robbery.10 See

Commonwealth's Sentencing Notice. See also 42 Pa.C.S. § 9714.

s 18 Pa.C.S. § 3701. 6 18 Pa.C.S. § 907. 7 Immediately prior to the commencement of the trial's evidentiary presentation, without objection, the Commonwealth, of-record, withdrew the balance of its past filed Criminal Informations. N.T. 7/13/10, pp. 15-17. 8 18 Pa.C.S. § 3701. 9 l8Pa.c.s. § 907. 1018Pa.C.S. § 3701. 2 Circulated 10/30/2015 02:48 PM

A sentencing bearing was held on September 28, 2010, before this court. N.T. 9/28/10.

Defendant Dale's prior, first degree felony Robbery'! conviction was established via the

stipulation of counsel and unsolicitedly acknowledged of-record by the Defendant. N.T. 9/28/10,

pp. 13-14, 17-18. See also Commonwealth v. Dale, No. 5936-96 - Delaware County. Finding

the prosecution had sufficiently established the applicability of the Sentences for Second and

Subsequent Offenses' mandated provisions, 12 the court in the aggregate imposed a sentence of

ten (l 0) through twenty (20) years incarceration to be served at a state correctional institution.13

N.T. 9/28/10, pp. 20-28. See also Certificate of Imposition of Judgment of Sentence. No post-

sentence motions were lodged.

On September 27, 2010, trial counsel, Mr. Kramer, lodged a Petition for Leave to

Withdraw Appearance. Immediately following the imposition of sentence on September 28,

2010, by order also of that date (September 28, 20 l 0), the court granted this withdrawal petition.

See Order dated September 28, 2010.

Defendant Dale on or about October 27, 2010, filed a counseled Notice of Appeal from

his sentencing judgment with the Superior Court of Pennsylvania. See Superior Court No. 2944

EDA 2010. Contemporaneous with his lodging of the appeal notice, Assistant Public Defender

Patrick J. Connors, Esquire entered his office's appearance on behalf of Defendant Dale. See

Entry of Appearance dated October 27, 2010.

Via order of November 16, 20 l 0, this court directed the Defendant's attorney to file

of-record a Concise Statement of Matters Complained of on Appeal. See Order dated November

11 ld. 12 42 Pa.C.S. § 9714(a)(I). 13 No objection was raised by defense counsel at sentencing relevant to the adequacy of the Commonwealth's mandatory minimum sentencing invocation notice. N.T. 9/28/10, pp. 3-4. See 42 Pa.C.S. § 9714(d). 3 Circulated 10/30/2015 02:48 PM

16, 2010. See also Pa.R.A.P. 1925(b). Responding to this order (November 16, 2010),

Defendant Dale's lawyer timely filed on December 3, 2010, a Statement of Matters Complained

advancing the sole issue that the trial court erred when it failed during voir dire to inquire of the

venire whether any of the panelists would be unable to follow the instruction of law that the

jury's verdict must be unanimous. See Statement of Matters Complained, dated December 3,

2010.

This court on or about February 4, 2011, lodged its opinion concluding the Defendant's

appellate error assignment had been waived. See Trial Court Opinion, pp. 4-5.

The Superior Court by opinion dated September 9, 2011, affirmed the Defendant's

sentencing judgment finding that the singular claim advanced on direct appeal had been waived.

See Superior Court No. 2944 EDA 2010, Opinion, p. 2.

Defendant Dale on or about October 11, 2011, filed with the Pennsylvania Supreme

Court a Petition for Allowance of Appeal. See Supreme Court No. 765 MAL 2011.

The Supreme Court of Pennsylvania per its order dated January 5, 2012, denied the

Defendant's allowance of appeal petition. See Supreme Court No. 765 MAL 2011, Order dated

January 5, 2012. The Defendant did not lodge with the United States Supreme Court a Petition

for Writ of Certiorari.

Defendant Dale on or about March 28, 2012, filed pro se his initial Petition for Post

Conviction Collateral Relief See Defendant's Petition. This original collateral petition being

his first PCRA pleading the Defendant for such purposes was entitled to counsel's assistance.

See Commonwealth v. Perez, 799 A.2d 848, 851-52 (Pa.Super. 2002) citing Commonwealth v,

Guthrie, 749 A.2d 502, 504 (Pa.Super. 2000); Commonwealth v. Ferguson, 722 A.2d 177, 179

(Pa.Super. 1998); and Commonwealth v. Hampton, 718 A.2d 1250, 1252-53 (Pa.Super. 1998).

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See also Commonwealth v. Ramos, 14 A.3d 894, 895-96 (Pa.Super. 201]) and Commonwealth v.

Luckett, 700 A.2d 1014, 1016 (Pa.Super. 1997). Per order dated March 30, 2012, and consistent

with his request for counsel's stewardship, Henry DiBenedetto Forrest, Esquire was for this

initial collateral action appointed to represent the Defendant. See Defendant's Petition, p. 31 and

Order dated March 30, 2012.

Subsequent to his requesting and being granted an extension of time within which to

lodge of-record an amended PCRA pleading, appointed counsel in compliance with the dictates

of Commonwealth v. Finley, 481 U.S. 551, 558-59, 107 S.Ct. 1990, 1995 (1987), Commonwealth

v. Turner, 518 Pa. 491, 495, 544 A.2d 927, 928-29 (1988) and Commonwealth v. Friend, 896

A.2d 607, 614-15 (Pa.Super. 2006) filed on or about August 15, 2013, an «Application to

Withdraw Appearance" and supporting "No Merit Letter." See "Application to Withdraw" and

"No Merit Letter." By his "No Merit Letter," the Defendant's lawyer based on his

comprehensive, advocate's review of the salient record and related investigation concluded

Defendant Dale's various explicit and/or implicit collateral claims raised by the Defendant's

original PCRA pleading lacked merit and/or otherwise were unsupported by the material record.

See "No Merit Letter," pp. 1-2, 10.

The Defendant on or about August 26, 2013, filed prose a Petition for Extension of Time

to File Response to "No Merit Letter." See Defendant's Extension Petition. Through this

extension petition, the Defendant requested leave of court to submit in support of his initial

collateral challenges additional legal authorities, other supportive documents, and/or relevant

witness affidavits. See Defendant's Extension Petition, p. 1. The court by order dated August

30, 2013, granted Defendant Dale's request for an extension of time to submit his supplemental

legal argument and/or other supportive factual materials. See Order dated August 30, 2013.

5 Circulated 10/30/2015 02:48 PM

On September 20, 2013, the Defendant filed Petitioner's Response to Counsel's "No

Merit Letter."14 See Petitioner's Response to "No Merit Letter."

Defendant Dale on June 26, 2014, lodged pro se his Subsequent Petition for Post

Conviction Collateral Relief. 15 See Defendant's Subsequent Petition.

By his subsequent petition, the Defendant sought to have his mandatory minimum

sentence (Information A - Robberyj " set aside and that he be afforded a de novo sentencing

hearing. See Defendant's Subsequent Petition, p. 8. More specifically, Defendant Dale

maintained that his ten (10) year mandatory minimum sentence pursuant to the Sentences for

Second and Subsequent Offenses17 ran afoul of the constitutional teachings per the United States

Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (2013).18 See Defendant's

Subsequent Petition, p. 2.

14 It was only on its receipt of the· Defendant's later submitted prose Petitioner's Combined Response to the Trial Court's Notice of Intent to Dismiss Without a Hearing (August 8, 2014) that this court became aware Defendant Dale bad past lodged bis requested response to appointed counsel's "No Merit Letter" as for whatever the reasons the Delaware County Office of Judicial Support on the response's lodging did not forward the same. See · Petitioner's Combined Response and Petitioner's Response to "No Merit Letter." After being so alerted to the Defendant having seemingly past filed bis response to the "No Merit Letter," this court finally was able to secure from the Judicial Support Office of Delaware County his Petitioner's Response to Counsel's "No Merit Letter." See Petitioner's Response to "No Merit Letter." 15 This subsequent collateral pleading advanced a sentencing legality claim wholly separate and discrete from any of the challenges the Defendant's original PCRA petition raised. See Defendant's Petition and Defendant's Subsequent Petition. 16 18 Pa.C.S. § 370 l(a)(l)(ii). 17 42 Pa.C.S. § 9714. 18 In addition to his Alleyne driven challenge to the sentence at bar's legality, the Defendant most generally advanced a claim that bis ten (10) through twenty (20) year Incarceration term exceeded the lawful statutory maximum, See Defendant's Subsequent Petition, p. 2. Bald, undeveloped averrnents fail to satisfy a defendant's burden of establishing entitlement to PCRA relief when such allegations are boiler plate, constitutional claims. Commonwealth v. Hall, 582 Pa. 526, 535, 872 A.2d 1177, 1182 (2005) and Commonwealth v. Washington, 583 Pa. 566, 573-74, 880 A.2d 536, 540-41 (2005).

Moreover, Defendant Dale was found guilty by the jury of perpetrating a robbery through means of intentionally placing his victim in fear of immediate serious bodily injury, 18 Pa.C.S. § 370l(a)(l)(ii). N.T. 7/14/10, pp. 112-13: See also Jury's Verdict. This mode of robbery (intentionally placing victim in fear of immediate serious bodily injury) was a first degree felony, 18 Pa.C.S. § 370l(b)(l). The statutory maximum period of imprisonmentsalient to 6 Circulated 10/30/2015 02:48 PM

Because of the discreet nature of the claims raised by bis first versus bis second PCRA

petitions and recognizing that the resolution of the original collateral filing was grounded on

appointed counsel's "No Merit Letter" in combination with its independent case record review,

the court on July 29, 2014, entered of-record two (2) respective dismissal notices, one (1)

adopting the defense attorney's "No Merit Letter" rationale and granting Mr. DiBenedetto

Forrest's withdrawal application" salient to the first PCRA petition while the other detailed with

robbery - intentionally place victim i:n fear of immediate serious bodily injury (J 8 Pa.C.S § 3701 (b)), a felony of the first degree, is twenty (20) years imprisonment. See 18 Pa.C.S. § J 103(1 ). This court's aggregate sentence of ten (10) through twenty (20) years incarceration comported with the salient statutory maximum and was thus unquestionably lawful. See Certificate of Imposition of Judgment of Sentence. See generally 42 Pa.C.S. § 9543(a)(2)(vii) and Commonwealth v. Lewis, 430 Pa.Super. 336, 343, 634 A.2d 633, 636 (1993) citing Commonwealth v, Grier, 410 Pa.Super. 284, 288, 599 A.2d 993, 995 (1991). 19 On the Defendant's pro se lodging of his Subsequent Petition for Post Conviction Collateral Relief as discussed infra, the court reviewed the salient case record and based on the filings then available to it, inter alia, concluded as below regarding the Defendant's prose Petition for Extension of Time to File Response to "No Merit Letter:"

Despite being afforded the requested opportunity to provide such to this court, the Defendant to date bas submitted in support of his original PCRA petition no additional legal authorities, no relevant documents of any kind, and not a single witness affidavit similar to his not having provided appointed counsel affidavits of any potential witnesses as the instant collateral filing and extension petition so averred.

See Dismissal Notice of Original Collateral and Order, dated July 29, 2014, Fn. 2. See also Defendant's Extension Petition; Order dated August 30, 2013; and "No Merit Letter."

Once having received from the Judicial Support Office the Defendant's reply to his lawyer's "No Merit Letter," the court reviewed the same and in the context of that which the response set forth once more independently examined the relevant case record. In such regard, inter alia, the court noted that based on bis advocate's examination of the salient case record and related investigation, including but not limited to reviewing the trial attorney's file and discussing such concerns with him, collateral counsel per bis "No Merit Letter" concluded that below:

The record initially indicates that Defendant's wife, Shavon Jenkins testified in Defendant's case to assist in the alleged alibi . .. . Isiah Matthews .... and Natasha Dale (sister of Defendant) were also interviewed in advance of trial. Based on this investigation, the undersigned submits that trial counsel strategically determined that no exculpatory evidence would have been elicited, and it was otherwise not in defendant's interest to call said witnesses. While there did not to appear to be an issue regarding the availability of said witnesses, the use of such a testimony, if elicited, would have not have been helpful to the defendant. Counsel clearly had a reasonable basis for not utilizing said witnesses at trial, which rationale concludes that counsel rendered affective assistance. 7 Circulated 10/30/2015 02:48 PM

the factual findings and legal conclusions the court's reasoning underlining its intent to dismiss,

absent a hearing, the Defendant's second, sentencing driven collateral petition. See Dismissal

Notices, dated July 29, 2014.

On August 8, 2014, the Defendant filed Petitioner's Combined Response to the Trial

Court's Notice ofintent to Dismiss Without a Hearing.20 See Petitioner's Combined Response.

Without seeking such and/or the court granting him that leave, Defendant Dale on

October 6, 2014, submitted an Amendment to Subsequent Petition for Post Conviction Collateral

Relief.21 See Defendant's Amendment to Subsequent Petition.

"No Merit Letter," p. 7. (Emphasis added). 20 Defendant Dale appended to his combined response a copy of a letter from Scott D. Galloway, Esquire indicating a belief he was appointed for purposes of the second collateral petition to represent the Defendant's interests. See Petitioner's Combined Response.

On its review of the Defendant's subsequent PCRA petition in recognizing that it set forth a sentencing legality attack wholly discreet and independent of any of those claims his original collateral petition advanced, the court opted not to again appoint counsel, but instead to first conduct its independent case record review believing the legal nature of this collateral claim would readily allow its resolution without an evidentiary bearing. Pa.R.Crim.P. 904(D). See also Commonwealth v. Smith, 572 Pa. 572, 577-85, 818 A.2d 494, 496-501 (2003) quoting Pa.R.Crim.P. 904; Commonwealth v, Rykard, 55 A.3d 1177, 1187 (Pa.Super, 2012); and Commonwealth v. Glacken, 32 A.3d 750, 753 (Pa.Super. 2011).

Pursuant to longstanding administrative practices, the Office of Judicial Support on the Defendant's prose lodging of bis subsequent petition forwarded the same to this court along with notification that in the event it was determined counsel should be appointed, Mr. Galloway per such relevant protocols was to be designated such. Despite this court never having so acted, judicial support personnel assumed Mr. Galloway's appointment and erroneously noted such of-record on the case docket. After discussions with the Delaware County Judicial Support Office Director and the Office of Judicial Support' s inability to produce the order of another jurist appointing Mr. Galloway stewardship of the Defendant's interests material to the second PCRA pleading, the case record was corrected to accurately reflect this matter's events. 21 In his prose lodging of this petition, the Defendant neither sought nor did this court grant him leave to so amend his subsequent collateral filing attacking his conviction's legality. See Commonwealth v, Rykard supra 55 A.3d at 1192 citing Commonwealth v. Williams, 551 Pa. 207, 252-53, 732 A.2d 1167, 1191 (1999); Commonwealth v. Paddy, 609 Pa. 272, 339-40, 15 A.3d 431, 471 (2011); Commonwealth v. Porter, 613 Pa. 510, 523-24, 35 A.3d 4, 12 (2012); Commonwealth v, D'Amato, 579 Pa. 490, 522, Fn. 19, 856 A.2d 806, 825, Fn. 19 (2004); and Commonwealth v. Derrickson, 923 A.2d 466, 469 (Pa.Super, 2007). 8 Circulated 10/30/2015 02:48 PM

The court by order dated December 2, 2014, dismissed both the Defendant's original

Petition for Post Conviction Collateral Relief and his Subsequent Petition for Post Conviction

Collateral Relief.22 See Order dated December 2, 2014.

On December 12, 2014, the Defendant lodged a timely pro se Notice of Appeal. See

Notice of Appeal. The court instructed Defendant Dale via order dated December 23, 2014, to

file a Concise Statement of Matters Complained of on Appeal. See Order dated December 23,

2014.

Per a separate order of the same date (December 23, 2014), the court granted in part and

denied in part the Defendant's Combined Request for Leave to Proceed in Forma Pauperis [sic]

and for Appointment of Counsel on Appeal. See Order dated December 23, 2014. The court

allowed Defendant Dale's application for leave to proceed in forma pauperis, but refused his

request for an appellate attorney's appointment. See Order dated December 23, 2014.

Responding to this court's order (December 23, 2014), directing the same, Defendant

Dale timely lodged on December 31, 2014, a prose statement of appellate complaints raising

nine (9) assignments of error.

The majority of the Defendant's appellate complaints maintain he was afforded

professionally incompetent representation by his pretrial, trial, and collateral attorneys. See

Statement of Matters Complained, Nos. 4, 5, 6, 7, 8. Such error assignments will be addressed

collectively below with individualized discussion as necessary salient to certain of these

challenges to counsel's stewardship, along with the related claim this court erred in the dismissal

of Defendant Dale's initial PCRA petition, absent a hearing. See Statement of Matters

22 As part of its deliberative processes material to the dismissal order's entry, the court fully reviewed and considered that set forth by the Defendant via his Petitioner's Combined Response to the Trial Court's Notice of Intent to Dismiss Without a Hearing. See Defendant's Combined Response. See also Order dated December 2, 2014. 9 Circulated 10/30/2015 02:48 PM

Complained, No. 3. The Defendant also advances via his final error assignment as discussed

infra a generalized prosecutorial misconduct claim. See Statement of Matters Complained, No.

9, compared to No. 8. The Defendant's two (2) remaining complaints on appeal contending

errors on the part of this court in refusing his request to appoint appellate counsel regarding the

dismissal of the original PCRA.petition and not by considering his subsequent collateral filing an

"extension" of his initial such lodging will be first addressed. See Statement of Matters

Complained, Nos. 1, 2.

L Did the trial court err in denying appellant's Request/or Appointment of Counsel on Appeal from the order dismissing Appellant's initial PCRA petition?

See Statement of Matters Complained, No. l.

By way of this first appellate complaint, Defendant Dale maintains that the court erred in

its denial of his request for the appointment of counsel on the present appeal as it relates to

" ... the order dismissing Appellant's initial PCRA. Petition .... "23 See Statement of Matters

Complained, No. 1. See also Defendant's Combined Request ... for Appointment of Counsel on

Appeal and Order dated December 23, 2014. This error assignment on the instant record is

without merit.

"An indigent petitioner is entitled to appointment of counsel on his first PCRA.

petition .... " Commonwealth v. Perez supra 799 A.2d at 851-52 (Emphasis added) citing

Commonwealth v. Guthrie supra 749 A.2d at 504; Commonwealth v, Ferguson supra 722 A.2d

23 By the plain terms of this error assignment and his statement of complaints otherwise, the Defendant does not take issue with the court having declined for purposes of his subsequent collateral petition challenging the lawfulness of the sentence at bar to once more appoint counsel, See Statement of Matters Complained, No. l. Hence, this court will offer no further discussion regarding its decision to not again appoint a lawyer to represent Defendant Dale oo the pro se lodging of bis subsequent petition beyond that already described above and detailed per the order of dismissal (December 2, 2014). Pa.R.A.P 1925(b)(4)(vii) ("Issues not included in the statement aod/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.") See also Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 83 I A.2d 599 (2003) and Commonwealth v. Cannon, 954 A.2d 1222, 1228 (Pa.Super. 2008). 10 Circulated 10/30/2015 02:48 PM

at 179; and Commonwealth v. Hampton supra 718 A.2d at 1252-53. See also Commonwealth v.

Ramos supra 14 A.3d at 895-96 and Commonwealth v. Luckett supra 700 A.2d at 1016.

The court appointed Attorney DiBenedelto Forrest as counsel for the Defendant with the

prose lodging of his first post conviction collateral relief petition. See Order dated March 30:

2012. See also Defendant's Petition. Mr. DiBenedetto Forrest on or about August 15, 2013,

filed an "Application to Withdraw Appearance" and supporting "No Merit Letter." See

"Application to Withdraw" and "No Merit Lener." See also Commonwealth v. Finley supra 481

U.S. at 558-59, 107 S.Ct. at 1995; Commonwealth v. Turner supra 518 Pa. at 495, 544 A.2d at

928-29; and Commonwealth v. Friend supra 896 A.2d at 614-15. On July 29, 2014, this court

granted the appointed counsel's "Application to Withdraw Appearance." See Dismissal Notice

of Original Petition and Order, dated July 29, 2014.

Defendant Dale on December 12, 2014, lodged his Combined Request ... for

Appointment of Counsel on Appeal. By way of this request, the Defendant, inter alia, sought at

bar his second appointment of counsel in order to raise ineffectiveness claims on appeal against

h.is first appointed, collateral lawyer. Defendant Dale noted per his appointment of appellate

counsel request that "[tjhe record is not clear as to whether or not the Court has granted former

counsel's Application to Withdraw Appearance." See Defendant's Combined Request ... for

Appointment of Counsel on Appeal. Despite this assertion, the instant record clearly

demonstrates that this court granted originally appointed counsel's withdrawal application via its

July 29, 2014, dismissal notice and related order. See Dismissal Notice of Original Collateral

Petition and Order, dated July 29> 2014.

On December 23, 2014, this court denied the Defendant's Combined Request ... for

Appointment of Counsel on Appeal. See Order dated December 23, 2014. This denial of the

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Defendant's application for counsel was grounded in the court's prior decision to allow the past

appointed collateral attorney's withdrawal request. The court concurred on its independent case

examination with appointed counsel relevant to Defendant Dale's first PCRA petition that such

collateral complaints were meritless and/or unsupported by the material record. The court

relatedly permitted via order Attorney DiBenedetto Forrest's requested withdrawal. See

Dismissal Notice of Original Petition and Order, dated July 29, 2014. See also Pa.R.Crim.P.

J20(B)(l)(2). The Defendant was not again entitled to the appointment of a lawyer to pursue an

appeal from the resulting denial of this same PCRA pleading. Commonwealth v. Perez supra

799 A.2d at 851-52 citing Commonwealth v. Gutherie supra 749 A.2d at 504.

Moreover, Defendant Dale's assertion that a second court appointment was needed to

advance claims of ineffectiveness against his collateral counsel is of no moment as such

allegations are to be raised in a defendant's response to a court's dismissal notice and not for the

first time on appeal. See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) and

Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa.Super. 2012) ("[W]hen counsel files a

Turner/Finley no-merit letter to the PCRA court, a petitioner must allege any, claims of

ineffectiveness of PCRA counsel in a response to the court's notice of intent to dismiss.") citing

Commonwealth v. Pitts, 603 Pa. 1, 9, Fn. 4, 981 A.2d 875, 880, Fn. 4. The Defendant did in fact

by his Petitioner's Response to Counsel's "No Merit" Letter challenge his collateral lawyer's

stewardship and has pursued on the instant appeal some of those same attacks. See Petitioner's

Response to "No Merit Letter" and Statement of Matters Complained, Nos. 4, 5.

Having reviewed his appointed attorney's "No Merit Letter" as well as the case record

and determined the collateral claims of Defendant D~e's initial PCRA petition were meritless

and/or lacked on the salient record adequate support, this court granted counsel's withdrawal

12 Circulated 10/30/2015 02:48 PM

application. See Dismissal Notice of Original Petition and Order, dated July 29. 2014. The

Defendant was not thereafter once more entitled to counsel's appointment. In denying

Defendant Dale's request that he again be afforded counsel to pursue the instant appeal relevant

to the denial of his first collateral filing, this court for these reasons above believes it did not err.

See Order dated December 23, 2014.

11. Did the trial court err in failing to consider Appellant's subsequent PCRA Petition (citing Alleyne v. Unites States) as a continuation of his PCRA petition?

See Statement of Matters Complained, No. 2.

Defendant Dale contends per this appellate complaint that the court was mistaken in

considering the Defendant's Subsequent PCRA petition as an entirely separate and distinct

PCRA petition versus a continuation of his original PCRA petition. See Statement of Matters

Complained, No. 2.

It is only for the first time on appeal via his statement of appellate complaints that

Defendant Dale advances his "extension" argument. Defendant Dale lodged his first PCRA

petition on March 8, 2012. See Defendant's Petition. He then filed on June 26, 2014, bis second

collateral pleading. See Defendant's Subsequent Petition. A fair reading of the subsequent

petition reveals that while the Defendant was obviously well aware the timing of its filing was

problematic, he did not cite explicitly or implicitly that this second collateral pleading was an

"extension" of his first PCRA petition, but rather averred what he believed to be an applicable

exception to the Post Conviction Relief Act's one (1) year lodging mandate. See Defendant's

Subsequent Petition, pp. 2-4. On July 29, 2014, this court filed its dismissal notice regarding the

later PCRA petition and detailed, inter alia, that this collateral pleading was untimely. See

Dismissal Notice of Subsequent Petition, dated July 29, 2014, pp. 6-11. Similar to his

subsequent petition, Defendant Dale by his response to the court's dismissal notice did not 13 I !' Circulated 10/30/2015 02:48 PM

directly or indirectly set forth the argument his subsequent petition was an «extension" of his

first original collateral pleading was timely lodged. See Petitioner's Combined Response. The

Defendant via his amended petition also recognized the subsequent petition's filing was on its

face untimely and once more cited what he believed to be the statutory exception material to the

Post Conviction Relief Act's one (l) year date certain filing requisite, yet again Defendant Dale

did not explicitly and/or implicitly maintain that as an "extension" of the original PCRA petition

this later collateral pleading was timely lodged. See Defendant's Amendment Petition, p. 4.

While not directly advanced by the Defendant, his claim on appeal that this second collateral

filing was merely an "extension" of his original PCRA petition is a belated effort to avoid the

statutory time bar and the court resultantly lacking requisite jurisdiction. See generally 42

Pa.C.S. § 9543(b)(1)(3). The Defendant having failed to raise before this court his current

"extension" claim and opting to do so only for the first time at bar on appeal, this error

assignment for purposes of appellate review should be deemed waived. Pa.R.A.P. 302(a)

("Issues not raised in the lower court are waived and cannot be raised for the first time on

appeal."). See also Commonwealth v. Duffy, 832 A.2d 1132, 1137 (Pa.Super. 2003);

Commonwealth v. Tejada, 107 A.3d 786, 797 (Pa.Super. 2015); and Commonwealth v. Parker,

104 A.3d 17, 28 (Pa.Super. 2014).

Although believing that it did not err in refusing to consider Defendant Dale's subsequent

petition a simple "extension" of his first collateral filing, regardless of whether this court was

mistaken in not so viewing the Defendant's second PCRA petition, the collateral claim it

advances is without legal merit.

The Pennsylvania Supreme Court has rejected attempts " ... to circumvent the PCRA

time-bar by treating the second petition as an amendment to the first petition, where . . . the

14 Circulated 10/30/2015 02:48 PM

second petition was filed after the expiration of the PCRA. filing deadline." Commonwealth v.

Rienzi, 573 Pa. 503, 508, 827 A.2d 369, 371 (2003). The Supreme Court has further opposed the

notion that untimely collateral petitions may be viewed as "extensions" of previous collateral

petitions. See geneialiy Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2003).

Tue Supreme Court of Pennsylvania in Commonwealth v. Porter observed, "[o'[ur

procedural Rules contemplate that amendments to pending PCRA petitions are to be 'freely

allowed to achieve substantial justice.' Pa.RCrim.P. 905(A)." Commonwealth v. Porter supra

613 Pa. at 523, 35 A.3d at 12. The Supreme Court further found in Porter that the

" ... appellant is mistaken in arguing that Rule 905 amendments are self-authorizing, i.e. that a

petitioner may simply "amend" a pending petition with a supplemental pleading. Rather the

Rule explicitly states that amendment is permitted only by direction or leave of the PCRA court."

Id. at 523-24, 35 A.3d at 12. See also Commonwealth v. Rykard supra 55 A.3d at 1192 citing

Commonwealth v. Williams supra 557 Pa. at 252-53, 732 A.2d at 1191; Commonwealth v. Paddy

supra 609 Pa. at 339-40, 15 A.3d at 471; Commonwealth v. D'Amato supra 579 Pa. at 522, Fn.

19, 856 A.2d at 825, Fn. 19; and Commonwealth v. Derrickson supra 923 A.2d at 469. The

Pennsylvania Supreme Court also noted that the defendant in Porter wrongly addressed new and

unrelated claims via his "amended" petition of his initial PCRA filing. Id. at 523-24, 35 A.3d at

12.

Although the record at bar certainly shows Defendant Dale did lodge an Amendment to

Subsequent Petition for Post Conviction Collateral Relief having learned from the court's

previously .filed dismissal notice of the second collateral petition's untimeliness, this pleading by

its plain terms neither requested leave to amend his past filing nor did this court grant him such

15 Circulated 10/30/2015 02:48 PM

relief. Pa.R.Crim.P. 905(A).24 See also Defendant's Amendment Petition. This unauthorized

attempted amendment to his subsequent petition does not bolster his effort to bring his second

collateral filing within mandated statutory time parameters as a simple "extension" of his first

PCRA petition. Commonwealth v. Porter supra 613 Pa. at 523, 35 A.3d at 12. See also

Commonwealth v. Rienzi supra 573 Pa. at 508, 827 A.2d at 371 and generally Commonwealth v.

Robinson supra.

Further, Defendant Dale averred in his subsequent PCRA petition entirely new and

unrelated challenges from those asserted in the Defendant's original PCRA petition. See

Subsequent PCRA Petition. See also Commonwealth v. Porter supra at 523-24, 35 A.3d at 12.

These separate and distinct claims all largely focused on the legality of the Defendant's sentence

through the teachings of Alleyne v. United States supra; however, the Defendant's initial PCRA

petition did not contain explicitly and/or implicitly any such sentencing challenge. See

Defendant's Petition and Subsequent PCRA Petition.

Defendant Dale's argument that he can avoid the patent time bar and the absence of this

court enjoying requisite jurisdiction under the guise that the wholly separate and distinct

sentencing challenge advanced via his belated subsequent petition was a mere extension of his

first collateral petition only attacking counsel's stewardship is failing. Commonwealth v. Porter

supra 613 Pa. at 523-24, 35 A.3d at 12. See also Commonwealth v. Rykard supra 55 A.3d at

1192 citing Commonwealth v. Williams supra 557 Pa. at 252-53, 732 A.2d at 1191;

Commonwealth v. Paddy supra 609 Pa. at 339-40, 15 A.3d at 471; Commonwealth v. D'Amato

24 Per this error assignment and his statement of complaints otherwise, Defendant Dale does not take issue with the court having declined to recognize his attempted, self-authorizing amendment petition. Hence, this court wi!J offer no further discussion regarding the Defendant's amendment petition beyond that detailed above salient to bis "extension'' argument. Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.") See also Commonwealth v. Mann supra 820 A.2d at 794 and Commonwealth v. Cannon supra 954 A2d at 1228. 16 Circulated 10/30/2015 02:48 PM

supra 579 Pa. at 522, Fn. 19, 856 A.2d at 825, Fn. 19; and Commonwealth v. Derrickson supra

923 A.2d at 469.

With Defendant Dale's argument failing for these reasons detailed above that his

subsequent petition was a simple "extension" of bis original PCRA pleading, the untimely nature

of this filing on the instant record is unquestioned.

A defendant must file a PCRA petition, including a second or subsequent one(s) within

one (1) year from the date judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(l). A

sentencing judgment becomes final for purposes of the Post Conviction Relief Act " . . . at the

conclusion of direct review, including discretionary review in the Supreme Court of the United

States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review." 42 Pa.C.S. § 9545(b)(3). This otherwise mandated one (1) year filing date is excused

onJy if a defendant alleges and proves one of the statutory exceptions set forth in subsections (i),

(ii) and/or (iii) of the Act's Section 9545, relating to government interference, newly discovered

evidence, or a constitutional right recognized by the federal and/or state Supreme Courts that is

applied retroactively. 42 Pa.C.S. § 9545(b)(l)(i)(ii)(iii). Even should one or more of these

enumerated exceptions to the one (1) year lodging requisite attach, a defendant for purposes of

the court's necessary jurisdiction must file any such collateral pleading " . . . within 60 days of

the date the claim could have been presented.', 42 Pa.C.S. § 9545(b)(2).

The Superior Court has repeatedly held second or subsequent PCRA petitions untimely

when such collateral pleadings were not filed within one (1) year after a defendant's judgment of

sentence became final. Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008) and

Commonwealth v. Davis, 916 A.2d 1206, 1208-09 (Pa.Super. 2007). Moreover, a second or

additional PCRA petition will only be considered if a defendant demonstrates that the

17 Circulated 10/30/2015 02:48 PM

proceedings resulting in his conviction were so unfair that a miscarriage of justice occurred

which no civilized society can tolerate, or a defendant is innocent of the convicted crimes.

Commonwealth v. Lawson, 519 Pa. 504, 513-14, 549 A.2d 107, 112 (1988) and Commonwealth

v. Szuchon, 534 Pa. 483, 487, 633 A.2d 1098, 1100 (1993).

The Supreme Court of Pennsylvania on January 5, 2012, denied the Defendant's Petition

for Allowance of Appeal salient to direct appeJlate review of his convictions. See Supreme

Court No. 765 MAL 2011, Order dated January 5, 2012. Hence, after recognizing the ninety

(90) day period for filing a Petition for Writ of Certiorari to the United States Supreme Court,25

the sentencing judgment at bar became final on April 4, 2012. 42 Pa.C.S. § 9545(b)(3). See also

Sup.Ct.R. 13.1.

Thus, in order to satisfy the Post Conviction Relief Act's one (1) year filing mandate,

Defendant Dale was required to lodge his second PCRA pleading no later than April 4, 2013.

The Defendant's second PCRA petition was filed on June 26, 2014, approximately twenty-six

(26) months beyond the date his sentencing judgment at bar became final and accordingly this

coJlateraJ pleading on its face was patently untimely. See Defendant's Subsequent Petition.

While after the one (1) year filing mandate a defendant may lodge a collateral pleading

no more than sixty (60) days subsequent to the United States Supreme Court or the Supreme

Court of Pennsylvania recognizing the constitutional protection being asserted, those claimed

rights must be held by the Supreme Court of the United States and/or the Pennsylvania Supreme

Court to have retroactive application for an otherwise belated coJlateral filing to fall within the

relevant exception to the Post Conviction Relief Act's one (1) year lodging deadline necessary to

the court's jurisdictional authority. 42 Pa.C.S. § 9545(a)(b)(l )(iii). See also Commonwealth v.

2s Defendant Dale did not lodge such a Petition for Writ of Certiorari. i 18 11 ., Circulated 10/30/2015 02:48 PM

Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007) citing Commonwealth v. Murray, 562 Pa. 1, 4,

753 A.2d 201, 203 (2000).

The Defendant's second collateral petition clearly rested on the United States Supreme

Court opinion of Alleyne v. United States supra which was decided on June 17, 2013. Because

Defendant Dale was asserting constitutional rights recognized by the Supreme Court of the

United States in its June 17, 2013, Alleyne supra decision, inter alia, he was required by the Post

Conviction Collateral Relief Act to file of-record any such claims on or before August 16, 2013.

42 Pa.C.S. § 9545(b)(l )(2). His subsequent petition was lodged some ten (10) months thereafter.

See Defendant's Subsequent Petition.

Defendant Dale's attempts to bring the subsequent PCRA pleading within the purview of

any recognized exception to the Post Conviction Relief Act's one (l) year from the date

sentencing judgment became final lodging mandate simply failed. Although via the collateral

petition at bar the Defendant was unquestionably asserting a constitutional claim driven by the

Alleyne v United States supra United States Supreme Court decision, he contended to avoid the

fatal flaw of this court not having necessary jurisdiction those constitutional protections are

" ... facts upon which the claim is predicated were unknown to him and could not have been

ascertained by the exercise of due diligence, ... whereby satisfying the requirements of 42

Pa.C.S .. § 9545(b)(2) [sic]:'' See Defendant's Subsequent Petition, p. 4. See also 42 Pa.C.S.

§ 9545(b)(l)(ii). The Defendant in an apparent concession his subsequent collateral petition was

untimely, misconstrued his constitutional right assertion as a factually driven after discovered

evidence challenge ignoring the Post Conviction Relief Act's unambiguous requisite, inter alia,

that the assertion of a constitutional right recognized by the Supreme Court of the United States

must be lodged within sixty (60) days of the date the claim could have been presented. 42

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Pa.C.S. § 9545(b)(l)(ii)(iii)(2). See Defendant's Subsequent Petition, pp. 3-4. Moreover, the

Defendant via his subsequent petition had not adequately averred let alone established bis

necessary exercise of due diligence, assuming his claim of constitutional rights could in some

manner be seen as an after discovered evidence factual contention asserting constitutional

protections. 42 Pa.C.S. § 9545(b)(l)(ii). See Commonwealth v. Johnson supra 945 A.2d at 188

and Commonwealth v. Davis supra 916 A.2d at 1208-09.

Assuming this error assignment is not found for purposes of the instant appeal to have

been waived and in the event the facially late filing of the subsequent petition did not deprive

this court of the jurisdiction necessary to adjudicating its collateral claim, Defendant Dale's

Alleyne driven attack on his sentence is misplaced and without merit.

Unlike the defendant in Alleyne being subject to a mandatory minimum sentence

resulting from the factual circumstance of his brandishing a firearm, Alleyne v. United States

supra 133 S.Ct. at 2155-56, Defendant Dale's mandatory minimum sentence was solely

grounded in his criminal recidivism. 42 Pa.C.S. § 9714(a)(l) ("Any person who is convicted in

any court of this Commonwealth of a crime of violence shall, if at the time of the commission of

the current offense the person had previously been convicted of a crime of violence, be sentenced

to a minimum sentence of at least ten years total confinement, .... ") See also Commonwealth's

Sentencing Notice. N.T. 9/28/10, pp. 3-4, 13-14, 17-18.

In Alleyne, the Supreme Court of the United States acknowledged that it had past

recognized a recidivism-prior conviction narrow exception to the constitutional requirement that

the ultimate fact finder determine beyond a reasonable doubt any "element" of the crime that on

conviction increases the sentencing penalty. Alleyne v. United States supra 133 S.Ct. at 1260,

Fn. 1 citing Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998).

20 Circulated 10/30/2015 02:48 PM

Relatedly, the Supreme Court in Alleyne exp.licitly did not revisit this recidivism exception to the

Sixth Amendment constitutional right of a jury finding beyond a reasonable doubt any "element"

of the crime that on conviction attaches a mandatory minimum sentence. Id.

As it related to Defendant Dale's contention his prior first degree felony Robbery26

conviction triggering his mandatory minimum sentence at bar should have been submitted to the

jury for their collective determination whether such was proven beyond a reasonable doubt,27 the

United States Supreme Court in rejecting a similar constitutional attack opined as follows:

... [T]he sentencing factor at issue here-recidivism-is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence. . .. Consistent with this tradition, the Court said long ago that a State need not allege a defendant's prior conviction in the . . . information that alleges the elements of an underlying crime, even though the conviction was 'necessary to bring the case within the statute.' Graham v. West Virginia, 224 U.S. 616, 624, 32 S.Ct. 58J, 585-86 (1912). That conclusion followed, the Court said, from 'the distinct nature of the issue,' and the fact that recidivism 'does not relate. to the commission of the offense, but goes to the punishment only, and therefore ... may be subsequently decided.' Id., at 629, 32 S.Ct. at 588 (emphasis added). The Court has not deviated from this view, See Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503-504 (1962).

Almendarez-Torres v. United States supra 523 U.S. at 243-44, 118 S.Ct. at 1230-31.

The question before us is whether this latter provision defines a separate crime or .simply authorizes an enhanced penalty. . .. [I]f the provision simply authorizes an enhanced sentence when an offender also has an earlier conviction, then . . . the fact of an earlier conviction is not an element of the present crime.

26 18 Pa.C.S. § 370 l. n . . Although not required by the language of the Sentences for Second and Subsequent Offenses statute Defendant Dale's previous first degree felony Robbery conviction was in effect established beyond a reasonable doubt via the stipulation of. counsel regarding this past conviction as well as unsolicitedly acknowledged of-record by the Defendant. 42 Pa.C.S. § 9714(d). N.T. 9/28/10, pp. 13-14, 17-18. See also Commonwealth v. Dale, No. 5936-96- Delaware County. 21 Circulated 10/30/2015 02:48 PM

We conclude that the subsection is a penalty provision, which simply authorizes the court to increase the sentence for a recidivist. It does not define a separate crime.

ld. 523 U.S. at 226, 118 S.Ct. at 1222.

The Superior Court has repeatedly found that Alleyne constitutionally invalidates those

present Pennsylvania mandatory minimum sentencing statutes triggered by the prosecution's

proof of certain facts (E.g. Visible Possession of Firearm during the Commission of certain

Violent Crimes, 42 Pa.C.S. § 9712; Possession with Intent to Deliver specified Quantities of

Controlled Substances, 18 Pa.C.S. § 7508; Possession of a Firearm while engaged in Drug Sales

42 Pa.C.S. § 9712. l; and/or Perpetrating listed crimes of violence at or about a public transit site,

42 Pa.C.S. § 9713). See generally Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014)

(Invalidating 42 Pa.C.S. §§ 9712 and 9713); Commonwealth v. Mosley, 2015 WL 1774216

(Pa.Super. 2015) (Invalidating 18 Pa.C.S. § 7508); Commonwealth v. Munday, 78 A.3d 661

(Pa.Super. 2013) (Invalidating 42 Pa.C.S. § 9712.1).

However, the Pennsylvania Superior Court bas further reviewed the applicability of

Alleyne in relation to a defendant's past criminal history in Commonwealth v. Watley and

recognized relevant to current considerations that "[t]he Alleyne decision, therefore, renders

those Pennsylvania mandatory minimum sentencing statutes that do not pertain to prior

convictions constitutionally in.firm insofar as they permit a judge to automatically increase a

defendant's sentence based on a preponderance of the evidence standard." Commonwealth v

Watley, 81 A.3d 108, 117 (Pa.Super. 2013) (en bane) (Emphasis added). See also

Commonwealth v. Lane, 81 A.3d 974, 976, Fn. 5 (Pa.Super. 2013), appeal denied, 92 A.3d 811

22 Circulated 10/30/2015 02:48 PM

(Pa. 2014) ("No Pennsylvania case has applied Alleyne to sentences enhanced solely by prior

· · convictions. ")28

Assuming arguendo it enjoyed necessary jurisdiction and this appellate complaint has not ,, been waived being first raised on appeal, this court concluded that Defendant Dale's request that

his recidivism driven mandatory minimum sentence be set aside as violative of his Sixth

Amendment rights per the United Stated Supreme Court teachings in Alleyne was without

support. Alleyne v. United States supra 133 S.Ct. at 2160, Fn. 1. See also Almendarez-Torres v.

United States supra 523 U.S. at 226, 243-44, 118 S.Ct. at 1222, 1230-31; Commonwealth v.

Watley supra 81 A.3d at 117; and Commonwealth v, Lane supra 81 A.3d at 976, Fn. 5. In light

of the foregoing, this error assignment, if not seen as waived, is without support and rneritless.

Ill. Was PC.RA counsel ineffective in Jailing to comply with the standards set out in Finley?

JV. Was PC.RA counsel ineffective in failing to investigate and develop appellant's claims raised in his PCRA petition?

See Statement of Matters Complained, Nos. 4 and 5.

Defendant Dale maintains that his PCRA counsel was professionally incompetent in not

complying with the standards established for such representation by Finley and further that his

collateral lawyer failed to address all those claims the Defendant had averred in his original

collateral petition. See Statement of Matters Complained, No. 4 and 5. See also Petitioner's

Response lo "No Merit Letter." As these two (2) appellate complaints pertain to the alleged

28 This court is aware that the Pennsylvania Supreme Court most recently in its decision of Commonwealth v Hopkins held the Drug Free School Zones' mandatory minimum sentencing provisions, 18 Pa C.S. § 6317, constitutionally infirm under Alleyne. Commonwealth v. Hopkins, 98 MAP 2013, Opinion. While the Supreme Court's reasoning in combination with those other fact driven mandatory sentencing statutes employing a similar statutory scheme and language render these other mandated sentences for the same reasons unconstitutional (E.g. 42 Pa.C.S. § 9712 - Sentences for Offenses Committed with Firearms), it is the view of this court that there are no saJient legal principles set forth via Hopkins that call into question the current viability of the Superior Court's past decisions recognizing that Alleyne yet acknowledges a recidivism-prior conviction narrow exception to the constitutional requirement that the ultimate fact finder determine beyond a reasonable doubt any other type "element" of the crime that on conviction increases the sentencing penalty. Commonwealth v. Hopkins supra. 23

I Circulated 10/30/2015 02:48 PM

ineffectiveness of Defendant Dale's PCRA counsel and both involve his PCRA attorney's review

of the Defendant's record at bar they will be addressed jointly. See Statement of Matters

Complained, No. 4 and 5.

Foremost, an ineffectiveness of PCRA counsel error assignment is waived for appellate

review unless it is raised in a defendant's response to the court's dismissal notice.

Commonwealth v. Henkel supra 90 A.3d at 20 and Commonwealth v Ford supra 44 A.3d at

1198 ("[\V]hen counsel files a Turner/Finleyno-merit letter to the PCRA court, a petitioner must

allege any claims of ineffectiveness of PCRA counsel in a response to the court's notice of intent

to dismiss.") citing Commonwealth v. Pitts supra 603 Pa. at 9, Fn. 4, 981 A.2d at 880, Fn. 4.

Defendant Dale properly raised the alleged incompetence of his collateraJ lawyer for purposes of

the pending appeal having advanced such a claim in his combined response to this court's

dismissal notices.29 See Petitioner's Combined Response. See also Commonwealth v. Henkel

supra 90 A.3d at 20 and Commonwealth v. Ford supra 44 A.3d at 1198 citing Commonwealth v.

· Pitts supra 603 Pa. at 9, Fn. 4, 981 A.2d at 880, Fn. 4.

An examination of a PCRA. attorney's supposed professional incompetence is conducted

under the general ineffectiveness of counsel standard. Commonwealth v. Rykard supra 55 A.3d

at 1189 citing Commonwealth v. Chmiel, 612 Pa. 333, 361-62, 30 A.3d 1111, 1127-28 (2011)

citing Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2d at 975-76.

The law presumes counsel was not incompetent, and a defendant bears the burden to

prove otherwise. Commonwealth v. Uderra, 550 Pa. 389, 400, 706 A.2d 334, 339 (1998) and

29 In Defendant Dale's Combined Response to this court's dismissal notices, be noted that he had previously asserted his collateral counsel's ineffectiveness in the Defendant's Response to Counsel's "No Merit Letter." See Petitioner's Response to Dismissal Notice, p. 2. Through the incorporation of this document the Defendant adequately raised his collateral counsel's professional incompetence as required in Commonwealth v. Henkel. Commonwealth v. Henkel supra 90 A.3d at 20. See also Commonwealth v. Ford supra 44 A.3d at 1198 citing Commonwealth v. Pitts supra 603 Pa. at 9, Fn. 4, 981 A.2d at 880, Fn. 4. 24 Circulated 10/30/2015 02:48 PM

Commonwealth v, Burkholder, 719 A.2d 346, 349 (Pa.Super. 1998). To prevail on a claim of

ineffective assistance of counsel, a defendant must demonstrate as follows: 1) The claim(s) are of

arguable merit; 2) Counsel had no reasonable basis for his or her action(s) and/or omission(s) in

question; and 3) Counsel's action(s) and/or inaction(s) prejudiced the defendant in that there was

a reasonable possibility that but for the act or omission challenge, the outcome of the

proceedings would have been different. Commonwealth v. Pierce, 515 Pa. 153, 158, 527 A.2d

973, 975 (1987) citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064

(1984). See also Commonwealth v. Allen, 557 Pa. 135, 144, 732 A.2d 582, 587 (1999);

Commonwealth v. Fulton, 547 Pa. 282, 291, 830 A.2d 567, 572 (2009) citing Commonwealth v.

Pierce, 567 Pa. 186, 202, 786 A.2d 203, 213 (2001); Commonwealth v. Kimball, 555 Pa. 229,

312, 724 A.2d 326, 333 (1999); and Commonwealth v. Neal, 421 Pa.Super. 478, f 82, 618 A.2d

4 3 8, 440 ( 1992). A defendant bears the burden of proving all three (3) prongs of ~he ineffective I standard and failure to establish even just one (1) of these requisites warrants dismissal of the

claim without further consideration of the other two (2) additional neJssary proofs.

Commonwealth v. Robinson, 583 Pa. 358, 369, 877 A.2d 433, 439 (2005). . I ' I I The Strickland benchmark encompasses all constitutionally cognizable I claims of

counsel's incompetence. Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2? at 975 citing

Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct. at 2064. Under ~e Strickland

standard, an allegation of ineffectiveness cannot be proven without a finding of prejudice that

except for the challenged act(s) or omission(s), the proceeding's outcome would have been

different. Commonwealth v. March, 528 Pa. 412, 414, 598 A.2d 961, 962 (1991) and

Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1166, 1174 (1986). Moreover, a

defendant's lawyer cannot be deemed incompetent for failing to raise and/or pursue meritless

25 Circulated 10/30/2015 02:48 PM

claims. Commonwealth v. Sneed, 616 Pa. 1, 33, 45 A.3d 1096, 1115 (2012) and Commonwealth

v. Hutchinson, 521 Pa. 482, 488, 556 A.2d 370, 372 (1989).

"A PCRA petitioner must exhibit a concerted effort to develop his ineffectiveness claim

and may not rely on boilerplate allegations of ineffectiveness." Commonwealth v. Natividad,

595 Pa. 188, 209, 938 A.2d 310, 322-23 (2007) citing Commonwealth v. Spotz, 587 Pa. 1, 99,

896 A.2d 1191, 1250 (2006) (Finding the ineffectiveness claim insufficient when the appellant

" . . . failed to set forth his claim pursuant to the three-prong Pierce test for establishing an

ineffective assistance of counsel claim."). See also Commonwealth v. Perry, 959 A.2d 932, 936

(Pa.Super. 2012) quoting Commonwealth v. Natividad supra 595 Pa. at 209, 938 A.2d at 322-23.

Commonwealth v. Hall supra 582 Pa. at 535, 872 A.2d at 1182 and Commonwealth v.

Washington supra 583 Pa. at 573 74, 880 A.2d at 540-41. " ... (A)n undeveloped argument,

which fails to meaningfully discuss and apply the standard governing the review of

ineffectiveness claims, simply does not satisfy Appellant's burden of establishing that he is

entitled to any relief." Commonwealth v. Bracey, 568 Pa. 264, 273, Fn. 4, 795 A.2d 935, 940,

Fn. 4 (2001). Furthermore, bald, undeveloped averments fail to satisfy a defendant's burden of

establishing entitlement to PCRA relief when such allegations are boilerplate, constitutional

claims. Commonwealth v. Hall supra 582 Pa. at 535, 872 A.2d at 1182 and Commonwealth v.

Washington supra 583 Pa. at 573-74, 880 A.2d at 540-41.

Section 9543 of the Post Conviction Relief Act, inter alia, provides to be eligible for

relief a defendant must establish by a preponderance of the evidence that the conviction(s)

resulted from one (1) or more of the Act's specifically delineated errors and/or defects and that

such have not been previously litigated. See 42 Pa.C.S. § 9543(a)(l)(2)(3). A defendant

asserting ineffective assistance of counsel must relatedly show that this ineffectiveness " ... so

26 Circulated 10/30/2015 02:48 PM

undermined the truth-deterrruning process that no reliable adjudication of guilt or innocence

could have taken place." See 42 Pa.C.S. § 9543(a)(2)(ii).

The Defendant's two (2) error assignments maintain that his collateral counsel was

ineffective. and it was his burden to demonstrate that his collateral counsel was professionally

incompetent. Commonwealth v. Uderra supra 550 Pa. at 400, 706 A.2d at 339 and

Commonwealth v Burkholder supra 719 A.2d at 349. Defendant Dale was unable to satisfy the

Strickland benchmark requiring that he demonstrate: 1) TI1e claim(s) are of arguable merit; 2)

Counsel had no reasoned basis for his or her action(s) and/or omission(s) in question; and 3)

Counsel's action(s) and/or inaction(s) prejudiced the defendant in that there was a reasonable

possibility that but for the act(s) or om.ission(s) challenged, the outcome of the proceedings

would have been different. Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2d at 975

citing Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct. at 2064.

In .first attacking his appointed counsel, Defendant Dale maintains Attorney DiBenedetto

Forrest did not comply in some otherwise unspecified manner with the dictates of

Commonwealth v Finley supra, Commonwealth v, Turner supra and Commonwealth v, Friend

supra. See Statement of Matters Complained, No. 4. A review of the salient case record,

including collateral counsel's "No Merit Letter" reveals otherwise. See "No Merit Letter."

Mr. DiBenedetto Forrest by his "No Merit Letter" fully detailed the scope of his

collateral examination. See "No Merit Letter," pp. 1-2, 10. From Attorney DiBenedetto

Forrest's review of the Defendant's initial petition and subsequent communications with him, via

the "No Merit Letter," appointed counsel listed with particularity those PCRA issues Defendant

Dale wanted examined. See "No Merit Letter," pp. 2-4, 9, 10. Mr. Di.Benedetto Forrest then

individually explained with references to notes of testimony and legal citations why these

27 Circulated 10/30/2015 02:48 PM

collateral claims were meritless. See "No Merit Letter," pp. 4-9. Per that which his "No Merit

Letter" details, the comprehensive, advocate's review Mr. DiBenedetto Forrest undertook and

completed on the Defendant's behalf offers no support for this error assignment's complaint that

appointed counsel was ineffective. To the contrary, Attorney DiBenedetto Forrest in the lodging

of his "No Merit Letter" followed the applicable requisites of Commonwealth v. Finley supra,

Commonwealth v. Turner supra and Commonwealth v. Friend supra.

Defendant Dale contends via his extensive response that his PCRA lawyer failed to

address numerous allegations of his prior attorneys' purported professional incompetence. See

Petitioner's Response to "No Merit Letter." A review of the Defendant's response, his original

PCRA petition, and appointed counsel's "No Merit Letter" show otherwise. The only issues this

court can discern that Defendant Dale raised and which was not directly detailed per the ''No

Merit Letter" is regarding pre-trial counsel's (Attorney Modesti) supposed failure to adequately

meet with the Defendant. See Defendant's Petition; "No Merit Letter;" and Petitioner's

Response to "No Merit Letter." Any challenge to the pre-trial stewardship of Attorney Modesti,

including an alleged failure to sufficiently meet with the Defendant, on the instant record is

meritless.

· As discussed in more detail infra, Attorney Modesti's stewardship of Defendant Dale's

interests at bar was modestly limited to an approximate month during which this case was at a

pre-trial posture between an initial pre-trial conference and first trial listing. Moreover, and

contrary to the Defendant's assertion that he failed to communicate with him, inter alia, Attorney

Modesti lodged of record a Notice of Alibi Defense listing Cvyonne Jenkins as such a defense

witness. See Notice of Alibi Defense, dated April 5, 2010. It defies common sense that Attorney

Modesti could file an alibi notice with a specifically identified individual who was subsequently

28 1:'·

Ii Circulated 10/30/2015 02:48 PM

called as a witness and so testified at trial, absent communications with Defendant Dale. See

Notice of Alibi Defense, dated April 5, 2010. See also N.T. 7/14/10, pp. 10-29.

Defendant Dale has failed to adequately demonstrate that he was indeed prejudiced by

the failure to address this issue of his pre-trial lawyer supposedly not communicating with him as

it was his burden to do so in order to establish his collateral counsel's alleged ineffectiveness for

not addressing and/or otherwise pursuing such a challenge. Commonwealth v. Pierce supra 515

Pa. at 158, 527 A.2d at 975 citing Strickland v. Washington fUpra 466 U.S. at 687, 104 S.Ct. at

2064. See also Commonwealth v. Uderra supra 550 Pa. at 400, 706 A.2d at 339 and

Commonwealth v. Burkholder supra 719 A.2d at 349.

As the Defendant failed to demonstrate that he was prejudiced by his pretrial attorney's

purported failure to meet with him prior to trial, his collateral counsel cannot be deemed

professionally incompetent for failing to address such an issue. Commonwealth v. Sneed supra

616 Pa. at 33, 45 A.3d at 1115 and Commonwealth v. Hutchinson supra 521 Pa. at 488, 556 A.2d

at 372.

Defendant Dale's second attack on collateral counsel's stewardship via his related

contention that Attorney DiBenedetto Forrest 11 ... fail[ed) to investigate and develop Appellant's

claims raised in his PCRA petition ... " likewise is just without adequate of record support. See

Statement of Matters Complained, No. 5.

Mr. Difsenedetto Forrest's examination of the salient record was comprehensive. All

notes of testimony were read. The court's file was reviewed. The files of the trial and direct

appeal lawyers were fully inspected which included all discoverable materials as well as each

attorney's litigation preparation. There were related communications with both trial counsel and

the appellate lawyer. There were also communications with the Defendant and requests for

29 Circulated 10/30/2015 02:48 PM

relevant information which if provided, was reviewed and considered. Armed with this wealth

of material and documentation, applicable legal research was conducted. See "No Merit Letter,"

pp. 1-2. Eight (8) collateral claims were specifically identified as those ineffective challenges

Defendant Dale wanted pursued. See "No Merit Letter," pp. 2-4. Beyond examining the case

record in the context of those issues Defendant Dale wanted reviewed, appointed counsel

additionally engaged in the supplemental record examination per that below:

. . . l have conducted an additional, independent review of the record regarding any potential, viable issues under the PCRA, not previous discussed, including possible claims against appellate counsel. This review encompassed all possible claims of a State [sic] and/or Federal [sic] Constitutional [sic] nature. Such legal and constitutional claims may not have been raised by the Defendant, but such a review is typically warranted. With regard to these issues and other potential violations of the law as well as that under the Constitutions of Pennsylvania and/or the United States, my investigation reveals no facts sufficient to prove a violation of any right of the Defendant.

See "No Merit Letter," p. 10.

Resulting from this all-inclusive review, Attorney DiBenedetto Forrest lodged his ten

(10) page, single spaced, "No Merit Letter" replete with legal authorities, testimonial notes,

citations, and numerous footnotes. See "No Merit Letter."

The comprehensive, advocate's review Mr. DiBenedetto Forrest undertook and

completed on the Defendant's behalf belies this error assignment's complaint that appointed

counsel failed to investigate those collateral claims raised in his original PCRA petition as

subsequently discussed further between Defendant Dale and appointed lawyer. See "No Merit

Letter," pp. 1-4.

Despite the Defendant's assertions, Mr. DiBenedetto Forrest acted competently through

his lodging of this "No Merit Letter." See "No Merit Letter." As Defendant Dale's appointed

30 Circulated 10/30/2015 02:48 PM

PCRA counsel, Attorney DiBenedetto Forrest was free to reach the conclusions he believed in

his best professional judgment warranted regarding the Defendant's PCRA petition and any other

possible collateral claims. See Commonwealth v. Finley, 379 Pa.Super. 390, 397, 550 A.2d 213,

217 (Pa.Super. 1988); Commonwealth v. Chmiel supra 612 Pa. at 468, 30 A.3d at 1190-91; and

Commonwealth v. Meadows, 567 Pa. 344, 365, 787 A.2d 312, 324 (2001). Defendant Dale's

understandable disappointment that his PCRA lawyer found on his behalf no viable PCRA

grounds to pursue is not a basis on which to support a finding that 1'1r. DiBenedetto Forrest

provided incompetent, collateral stewardship.

Moreover, a defendant's lawyer cannot be found professionally incompetent for failing to

raise and/or pursue baseless claims. Commonwealth v. Sneed supra 616 Pa. at 33, 45 A.3d at

1115 and Commonwealth v. Hutchinson supra 521 Pa. at 488, 556 A.2d at 372. This standard is

as well applicable concerning assertions of a PCRA counsel's supposed ineffectiveness and their

review of claims against a prior lawyer's claimed ineffectiveness. "Post-trial counsel will not be

deemed ineffective for failing to raise and preserve meritless challenges to the effectiveness of

trial counsel." Commonwealth v. Rivera, 816 A.2d 282, 292 (Pa.Super. 2003) quoting

Commonwealth v. Thuy, 424 Pa.Super. 482, 498, 623 A.2d 327, 335 (1993).

V. Was pretrial counsel (Modesti) ineffective in/ailing to meet and consult with appellant prior to trial, inf ailing to exp lgre potential trial defenses, in failingto petition the trial court for funds to hire an investigator, in failing to prepareand file any pretrial motions, and in failing to contact and interview known witnesses whose testimony would have been exculpatory in nature?

See Statement of Matters Complained, No. 6.

Through this appellate complaint, the Defendant maintains that his pre-trial lawyer,

Arthur J. Modesti, Esquire, afforded him less than professionally mandated representation by

failing to complete the following: Meeting with the Defendant prior to trial; Exploring possible

31 Circulated 10/30/2015 02:48 PM

trial defenses; Hiring an investigator; Filing pretrial motions; and Contacting witnesses. See

Statement of Matters Complained, No. 6. Given his very abbreviated stewardship of Defendant

Dale's interests at bar together with such representation being limited to a time span

encompassing only the case's pre-trial conference through the first trial listing at which Scott L.

Kramer, Esquire entered his appearance, any challenge that Attorney Modesti was in some

manner ineffective warranting collateral remedy is meritless'"

Attorney Modesti began his representation of the Defendant on April 5, 2010, and was

soon after replaced on May 6, 2010, by Attorney Kramer. See Entries of Appearance. During

th.is single month of Attorney Modesti's tenure as Defendant Dale's lawyer, no material

instances of any consequence took place. Recognizing the minimal nature of the time period

Attorney Modesti was the Defendant's of record attorney, it is not surprising that Defendant Dale

failed to sufficiently demonstrate that any of his pre-trial lawyer's alleged actions and/or

omissions underpinning this appellate complaint enjoy even arguable merit. Moreover, the

Defendant has certainly not adequately established the challenged actions and/or inactions of

Attorney Modesti occasioned him to suffer the requisite degree of prejudice necessary to

collateral relief in that but for these purported oversights, the outcome of his trial which took

place two (2) months subsequent to Mr. Modesti stepping aside and under the stewardship of a

wholly independent defense counsel would have been otherwise. Commonwealth v. Uderra

supra 550 Pa. at 400, 706 A.2d at 339; Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2d

30 As maintained by the Defendant in this appellate complaint, the only possible avenue by which Attorney Modesti could even remotely be found ineffective is bis failure to lodge and litigate an exclusionary pleading. See Statement of Matters Complained, No. 5. However, the several issues the Defendant believes should have been addressed via a suppression motion by either Attorney Modesti or Attorney Kramer as discussed infra are each without merit. Recognizing, as Attorney Modesti may not be deemed incompetent for not pursuing meritless claims, his failing to lodge an exclusionary motion is not a viable ground on which a collateral remedy may rest. Commonwealth v. Sneed supra 616 Pa. at 33, 45 A.3d at 1115 and Commonwealth v. Hutchinson supra 521 Pa. at 488, 556 A.2d at 372. 32 Circulated 10/30/2015 02:48 PM

at 975 citing Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct. at 2064; and

Commonwealth v. Robinson supra 583 Pa. at 369; 877 A.2d at 439.

Defendant Dale first maintains that Attorney Modesti failed to meet with him prior to his

trial. See Statement of Matters Complained: No. 6. The Defendant has not offered any support

as to how this alleged failure prejudicially impacted his matter at bar. See Statement of Matters

Complained, Nos. 4 and 5. Additionally, this claimed lack of communication between counsel

and Defendant Dale is undercut by Attorney Modesti having lodged of record an alibi notice

detailing the very same witness who so subsequently at trial testified. See Notice of Alibi

Defense, dated April 5, 2010 and N.T. 7/14/10, pp. 10-29.

Defendant Dale further contends that Attorney Modesti was professionally incompetent

by failing to petition the court for funds to hire an investigator." Defendant Dale previously

averred in his Response to Counsel's "No Merit Letter» that "[h]ad counsel petitioned the court

for funds to hire an investigator, Shaykia Cherry may have been located and subpoenaed for

court." See Petitioner's Response to "No Merit Letter," p. 12. (Emphasis added.)

Not only is Defendant Dale's averrnent meritless as the Defendant failed to show how the

hiring of a private investigator, who may or may not have found the purportedly helpful Shaykia

Cherry,32 who may or may not have been able to testify, and whose testimony may or may not

31 ln the Defendant's original PCRA petition, he averred that both Attorney Modesti and Attorney Kramer were ineffective for failing to petition the court for funds to hire private investigator. See Defendant's Petition. pp. 4, IS. See also Defendant's Response to "No Merit Letter," pp. 8-9.

T11e Office of the Delaware County Public Defender employs paralegals and investigators either of which was accessible to Attorney Modesti. Hence, no investigative authorization funding petition would have been lodged with the court by pre-trial counsel. 32 The Defendant maintains that an individual named Shaykia Cherry was 'in possession of the victim's cellular phone and made contact with the victim concerning his phone. However, the Defendant has not provided any basis for his assertions other than references to Detective Houghton's affidavit of probable cause, "However, on p. 6 of the Incident Investigation Report, Detective Houghton notes that the victim notified him that he had been contacted by a Shaykia Cherry .... " See Defendant's Petition, pp. 12, 17. A review of the relevant criminal complaint reveals 33 Circulated 10/30/2015 02:48 PM

have been beneficial to the Defendant, even if such testimony was found credible by the jury,

would have in fact altered the trial's outcome, especially at such an early stage of the

proceedings when Attorney Modesti was still of record defense counsel. Commonwealth v.

Pierce supra 515 Pa. at 158, 527 A.2d at 975 citing Strickland v. Washington supra 466 U.S. at

687, 104 S.Ct. at 2064. The Defendant's sheerly speculative argument regarding the hiring of a

private investigator not only fails to possess merit, but falls short of demonstrating that be was

indeed prejudiced by the absence of such an investigation being pursued.

Defendant Dale also avers by way of this error assignment that his pretrial counsel was

ineffective by failing to " ... prepare and file any pretrial motions." See Statement of Matters

Complained, No. 6. A review oftbe record at bar reveals he is mistaken.

On the same date Attorney Modesti entered his appearance (April 5; 2010), be

simultaneously lodged a Notice of Alibi Defense and an Omnibus Pretrial Motion. See Notice of

Alibi Defense, dated April 5, 2010. See also Omnibus Pretrial Motion. The notice listed a

Cvyonne Jenkins as an alibi witness for the Defendant. See Notice of Alibi Defense, dated April

5, 2010. The omnibus pretrial pleading included both a Motion for Discovery and a Motion to

Extend Time for Filing Omnibus Motion requesting additional time to file any omnibus claims

that would be deemed necessary after a review of any received discovery materials. See

Omnibus Pretrial Motion.

The Defendant is unable to demonstrate that this generalized claim has any arguable

merit and/or that he suffered the degree of prejudice requisite to collateral relief. Commonwealth

v Pierce supra 515 Pa. at 158, 527 A.2d at 975 citing Strickland v. Washington supra 466 U.S.

at 687, 104 S.Ct. at 2064.

that on page six (6) of the criminal complaint there is no mention of the purported Shaykia Cherry and/or this individual contacting the victim. See Criminal Complaint and Probable Cause Affidavit, No. 1184-10. 34 Circulated 10/30/2015 02:48 PM

Defendant Dale also maintains that Attorney Modesti failed to contact and interview

supposedly known witnesses, who would have divulged exculpatory evidence. See Statement of

Matters Complained, No. 6. The Defendant again generally avers these witnesses possessed

evidence beneficial to the defense without providing any support. Even had Attorney Modesti

contacted these witnesses, Defendant Dale failed to demonstrate how such supposed exculpatory

evidence stemming from these witnesses would have altered this case's outcome. Moreover, the

limited time period that Attorney Modesti represented the Defendant would have also in tum

restricted his ability to locate and contact potential trial witnesses.

Further, a review conducted by Defendant Dale's collateral counsel revealed even had

Attorney Modesti spoken to these supposed exculpatory witnesses they would not have

benefitted the Defendant's cause. See "No Merit Letter," p. 7. As collateral counsel's

comprehensive, advocate's review found:

. . . The undersigned submits that trial counsel strategically determined that no exculpatory evidence would have been elicited, and it was otherwise not in Defendant's best interest to call said witnesses. . .. the use of such testimony, if elicited, wou1d not have been helpful to the Defendant. Counsel clearly had a reasonable basis for not utilizing said witnesses at trial, which rationale concludes that counsel rendered effectiveassistance. ·

See "No Merit Letter," p. 7. (Emphasis added).

Based on a review of the record at bar, not only does this error assignment Jack arguable

merit, but Defendant Dale failed to adequately demonstrate how these alleged failures of his

pre-trial counsel of one (1) month at such an early stage of the proceeding would result in a

different trial outcome. Commonwealth v. March supra 528 Pa. at 414, 598 A.2d at 962 and

Commonwealth v. Buehl supra 510 Pa. at 378, 508 A.2d at 1174. See also Commonwealth v.

Natividadsupra 595 Pa. at 209, 938 A.2d at 322-23 citing Commonwealth v. Spatzsupra 587 Pa.

35 Circulated 10/30/2015 02:48 PM

at 99, 896 A.2d at 1250; Commonwealth v. Hall supra 582 Pa. at 535, 872 A.2d at 1182; and

Commonwealth v. Washington supra 583 Pa. at 573-74, 880 A.2d at 540-41. The Defendant has

simply not established how his pretrial lawyer's supposed ineffectiveness "undermined the truth-

determining process that no reliable adjudication of guilt or innocence could have taken place."

42 Pa.C.S. § 9543(a)(2)(ii).

The Defendant's various challenges pertaining to Attorney Modesti's professional

incompetence lack the support necessary to demonstrate such ineffectiveness did in fact take

place and/or that he as a result suffered actionable prejudice. Commonwealth v, Pierce supra

515 Pa. at 158, 527 A.2d at 975 citing Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct.

at 2064. Defendant Dale has foremost failed to indicate how Attorney Modesti's supposed errors

months prior to a trial at which he was represented by wholly independent and privately retained

counsel altered the outcome of the matter at bar. Id. This appellate complaint of the Defendant

is therefore meritless.

VL Waspretrial/trialcounsel Scott Kramer ineffectivein failing to prepareandfile any pretrial motions on behalf of the Appellant, to include, and most importantly, a pretrial motion to suppressevidence?

See Statement of Matters Complained, No. 7.

Defendant Dale via this appellate complaint most. generally maintains that his pretrial

lawyer, Attorney Modesti, and trial counsel, Attorney Kramer, were professionally incompetent

by failing to file pretrial pleadings. The only such lodging so noted with particularity is a motion

to suppress evidence. See Statement of Matters Compla~ed, No. 7. Although the Defendant has

not referenced in this error assignment any underlying justification that bis counsel would have

for pursuing a suppression motion, a review of his original collateral petition in conjunction with

the Defendant's Response to Counsel's "No Merit Letter" reveals that he previously averred for

36 Circulated 10/30/2015 02:48 PM

the filing of an exclusionary pleading numerous rationales. See Defendant's Petition, pp. 8-17.

See also Defendant's Response to "No Merit Letter," pp. 12-14.

Per his initial PCRA petition as well as bis response to collateral counsel's "No Merit

Letter," Defendant Dale maintained that both Attorney Modesti33 and Attorney Kramer should

have lodged an exclusionary filing seeking to bar from the prosecution's use at trial the

following: Description of the motor vehicle involved in the robbery; Victim's description of the

offenders; Clothing worn by the Defendant; Detective Houghton's investigation into the

Defendant's alibi; A supposed Incorrect date on Detective Hougbton's affidavit of probable

cause; and/or A Photograph array entered into evidence at trial. See Defendant's Petition, pp. 8-

17. Defendant's Response to "No Merit Letter," pp. 12-14.

Even upon a cursory review of the relevant case record, it is readily evident that the vast

· majority of those claims Defendant Dale complains about bis lawyers not advancing via a

suppression motion are just devoid of merit. The Defendant's suggested challenges to the

following are simply not the proper subjects of an exclusionary pleading, but rather are at most

potential trial issues: Alleged conflicting descriptions of the motor vehicle involved in the

robbery; Victim's description of the robbers and/or their clothing; Detective Houghton's

investigation of the alibi defense; and Purported incorrect date noted in the criminal complaint's

probable cause affidavit. Commonwealth v. Burnside, 425 Pa.Super. 425, 429, 625 A2d 678,

680 (1993) citing Commonwealth v. Tuck, 322 Pa.Super. 328, 3 32, 469 A.2d 644, 646 (1983)

and Commonwealth v. Millner, 585 Pa. 237, 259, 888 A.2d 680, 692 (2005). See also

33 As was addressed previous salient to error assignment No. 6, Attorney Modesti's representation of the Defendant's interests at bar was most abbreviate and limited to a single month between the case's pre-trial conference and its first trial listing at which Attorney Kramer then entered his appearance. See Entries of Appearance. To the extent applicable, this prior discussion about Mr. Modesti's most modest stewardship is incorporated by reference as if fully set forth. 37

I I

.11 Circulated 10/30/2015 02:48 PM

Defendant's Petition, pp. 8, 12-14 and Defendant's Response to "No Merit Letter," pp. 12-14.

From the litany of subjects Defendant Dale contends should have been litigated pre-trial per an

exclusionary pleading, only those of the photo array and the seizure of certain articles of cJothing

incident to his unrelated, arrest require further discussion. Commonwealth v. Sneed supra 616

Pa. at 33, 45 A.3d at 1115 and Commonwealth v, Hutchinson supra 521 Pa. at 488, 556 A.2d at

372.

Starting with the circumstances through which the Commonwealth came into possession

of the Defendant's clothing articles, these two (2) possible suppression challenges as further

detailed below do not advance a sufficient basis on which to ground Post Conviction Relief Act

remedy.

Although the barring of physical items from the prosecution's trial usage is a common

and proper form of relief to be sought via a suppression motion, the grounds Defendant Dale

proffered as the basis for the clothing articles' exclusion34 were not those of his constitutional

rights supposedly being contravened and thus beyond the purview of a suppression pleading's

relief. See Commonwealth v. Burnside supra 425 Pa.Super. at 429, 625 A.2d at 680 citing

Commonwealth v. Tuck supra 322 Pa.Super. at 332, 469 A.2d at 646 and Commonwealth v.

Millner supra 585 Pa. at 259, 888 A.2d at 692 ("The point of a motion to suppress physical

evidence is to eliminate certain tangible evidence from the Commonwealth's trial

armamentarium, on grounds that the manner of the government's acquisition of that evidence

involved a violation of the defendant's constitutional rights.") (Emphasis added).

34 Defendant Dale maintains that the shirt entered into evidence should have been suppressed as it was the article of clothing he was wearing on the day of his arrest which took place a month before the robbery at issue and that no information detailing the shirt tbe robbery assailant was wearing underneath the other clothing described by the victim. See Defendant's Petition, p. 13. See also Petitioner's Response to "No Merit Letter," pp. 10-11. I 38 1! u 'I.! ii Circulated 10/30/2015 02:48 PM

The Defendant's claimed grounds for the exclusion of his clothing articles not being a

cognizable basis to suppress these items, this collateral attack lacks the merit requisite to Post

Conviction Relief Act remedy. See Commonwealth v. Dennis, 597 Pa. 159, 175-76, 950 A.2d

954-55 (2008) quoting Commonwealth v. McGill, 574 Pa. 574, 587, 832 A.2d 1014, 1022

(2003); Commonwealth v. Busanet, 618 Pa. 1, 19, 54 A.3d 35, 46 (2012); and Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa.Super. 2013) ("A claim has arguable merit where the factual

averments, if accurate, could establish cause for relief See Commonwealth v. Jones, 583 Pa.

130, 876 A.2d 3 80, 385 (2005) ('if a petitioner raises allegations, which, even if accepted as true,

do not establish the underlying claim ... , he or she will have failed to establish the arguable merit

prong related to the claim.') whether the 'facts rise to the level of arguable merit is a legal

determination.' Commonwealth v. Saranchak, 581 Pa. 490, 866 A.2d 292, 304 n. 14 (2005).")

Recognizing relatedly that a defendant's lawyer caIU16t be found professionally incompetent for

not pursuing frivolous litigation, neither Attorney Modesti nor Attorney Kramer not seeking the

clothing articles' exclusion is an instance of ineffective counsel. Commonwealth v. Sneed supra

616 Pa. at 33, 45 A.3d at 1115 and Commonwealth v. Hutchinson supra 521 Pa. at 488, 556 A.2d

Beyond the meritless nature of the underlining grounds he advanced regarding th.is

collateral challenge to his lawyers not litigating the clothing items' exclusion, a review of the

instant record and that of Commonwealth v. Dale, No. 798-10 Delaware County, shows that the

Commonwealth lawfully came to possess these articles of clothing. See also Commonwealth's

Exhibits C-5 - Black Long Sleeve Shirt; C-6 - Black Cargo Pants; and C-7 - Stipulation. N.T.

7/14/10, pp. 4-7.

39 Circulated 10/30/2015 02:48 PM

· Unrelated to the robbery at bar,

Detective Richard Herron responded to a call involving a residential burglary. A Penndot search

of the vehicle that was involved in this burglary revealed the mini van to be registered to the

Defendant. Defendant Dale was further positively identified as one of the perpetrators by an

eyewitness to the home's burglary. See Criminal Complaint and Probable Cause Affidavit, No.

798-10. Based on the above, Detective Herron lodged a criminal complaint on January 12, 2010,

which after reviewing its supporting affidavit the Magisterial District Court Judge determined set

forth mandated probable cause and the complaint was resultantly issued. See Criminal

Complaint and Probable Cause Affidavit, No. 798-10. Pursuant to this court authorized criminal

complaint, Detective Herron later that same day (January 12, 2010) arrested Defendant Dale and

presented him for preliminary arraignment to the Magisterial District Court. See Case Docket,

No. CR 5-10 - Magisterial District Court 32-2-50. On bis arrest, the Defendant was wearing a

black, long sleeve shirt and black cargo style, Dickies brand pants. See Commonwealth's

Exhibit C- 7 - Stipulation. See also Criminal Complaint and Probable Cause Affidavit, No. 1184-

10; N.T. 7/13/10, pp. 172-77; and N.T. 7/14/10, pp. 4-7.

As Detective Houghton's probable cause affidavit detailed, while reviewing criminal

investigations online through DeJCoCrimeStat, he observed a posting from Detective Herron,

This message advised that a black male was arrested for a burglary and not only described the

motor vehicle involved in the burglary, but also included a picture of the mini van. Believing

from interviews of the victim and his mother that the burglary and the robbery involved the same

motor vehicle and, inter alia, the same person Sharon Hill police had recently arrested, Detective

Houghton included this individual, Defendant Dale, in a photo array. See Criminal Complaint

and Probable Cause Affidavit, No. 1184-10. This photo array was shown to the victim, and he

40 Circulated 10/30/2015 02:48 PM

readily identified the Defendant as his armed assailant. N.T. 7/13/10, pp. 181-84, 261-62, 266-

270. See also Commonwealth's Exhibit C-1 - Photo Array.

In No. 798-10, it is clear based on a review of the supporting affidavit, the Magisterial

District Judge's determination that probable cause for the Defendant's arrest existed regarding

the residential burglary was proper. See Criminal Complaint and Probable Cause Affidavit, No.

798-10. See Commonwealth v. Thompson, 604 Pa. 198, 203, 985 A.2d 928 (2009) quoting

Commonwealth v. Rodriguez, 526 Pa.· 268, 273, 585 A.2d 988, 990 (1991). See also

Commonwealth v. Burnside supra 425 Pa.Super. at 429-30, 625 A.2d at 681 quoting

Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1234 (1982). When then

arrested Defendant Dale was wearing a black, long sleeve shirt and a black, pair of cargo style

Dickies brand pants. N.T. 7/14/J 0, pp. 4- 7. See also Commonwealth's Exhibit C-7 - Stipulation.

As the Defendant was legally taken into custody per an appropriately judicially approved

criminal complaint, his person and the articles of clothing that he was wearing were in plainly

and lawfully observable to the arresting officers.

" '[Pjlain view' provides grounds for seizure of an item when an officer's access to an

object has some prior justification under the Fourth Amendment. 'Plain view' is better perhaps

understood therefore, not as an independent 'exception' to the warrant clause, but simply as an

extension of whatever the prior justification for an officer's 'access to an object' may be."

Commonwealth v. McCree, 592 Pa. 238, 248, 924 A.2d 621, 627-28 (2007) quoting

Commonwealth v. Graham, 5 54 Pa. 4 72, 481-82, 721 A.2d 107 5, 1079 (1998) quoting Texas v.

Brown, 460 U.S. 730, 738-39, 103 S.Ct. l 535, 1541 (1983).

Both the Federal Constitution's Fourth Amendment and Article 1, § 8 of the Pennsylvania

Constitution require that law enforcement officials have a lawful right of access ·to any items

41 Circulated 10/30/2015 02:48 PM

observed in plain view. See also Commonwealth v. Dean, 940 A.2d 514, 520 (Pa.Super. 2008).

"The plain view doctrine permits the warrantless seizure of evidence where a police officer

views an object from a " ... lawful vantage point, and it is immediately apparent that object is

incriminating." Commonwealth v. Winfield, 835 A.2d 365, 369 (Pa.Super. 2003) citing

Commonwealth v. Petrol!, 558 Pa. 565, 576, 738 A.2d 993, 999 (1999); and Commonwealth v.

Ballard, 806 A.2d 889, 891 (Pa.Super. 2002). For the plain view doctrine to be applicable the

following four (4) conditions must be satisfied: In arriving at the location from which the item

can be viewed, police must not violate the Fourth Amendment; The items must be plainly

observed; The items' incriminating character must be immediately apparent; and Police

authorities must have a lawful right of access to the plainly viewed items. Commonwealth v.

McCree, 592 Pa. 238, 256, 924 A.2d 621, 632 (2007) citing Horton v. California, 496 U.S. 128,

136-37, 110 S.Ct. 2301, 2308 (1990).

This requisite probable cause nexus between observed items in plain view and criminal

activity demands the facts known to police would warrant a man of reasonable caution in the

belief that certain items may be useful as evidence of a crime. Commonwealth v. McEnany, 446

Pa.Super. 609, 619, 667 A.2d 1143, 1148 (1995) citing Commonwealth v. Daniels, 406 Pa.Super.

112, 116, 593 A.2d 895, 898-99 (1999). See also Commonwealth v. Ellis, 541 Pa. 285, 298, 662

A.2d 1043, 1049 (1995).

Moreover, the Pennsylvania Supreme Court has previously. held that the seizure of a

defendant's clothing following an arrest is constitutionally permissible as a search incident to a

lawful arrest. See Commonwealth v.. Daniels, 474 Pa. 173, 174, 377 A.2d 1376 (1977) quoting

Commonwealth v. Bundy, 458 Pa. 240, 245-46, 328 A.2d 517, 520 (1974).

42 Circulated 10/30/2015 02:48 PM

On the foregoing record, there was at bar no viable grounds to seek exclusion from the

prosecution's use at trial the now challenged clothing articles of the Defendant. Id. See also

Commonwealth's Exhibits C-5 -Black Long Sleeve Shirt; C-6 - Black Cargo Pants; and C-7 -

Stipulation. Attorneys Kramer and Modesti cannot be shown to have been professionally

incompetent for failing to pursue the suppression of the clothing as such an effort would have

been baseless. Commonwealth v. Sneed supra 616 Pa. at 33, 45 A.3d at 1115 and

Commonwealth v. Hutchinson supra 521 Pa. at 488, 556 A.2d at 372.

Similar to any attempt to suppress these articles of clothing coming into the

Commonwealth's possession incident to the Defendant's unrelated, lawful arrest (No. 798-10),

although neither Attorney Modesti nor Attorney Kramer lodged and litigated an exclusionary

challenge to the victim being shown an investigative photo array and resultantly identifying

Defendant Dale, the same offers this appellate complaint no support. Once again, defense

counsel cannot be found ineffective for failing to pursue a rneritless cour~e of action. Id.

The Superior Court has previously found salient to photo arrays and suppression

challenges as follows:

Whether an out of court identification is to be suppressed as unreliable, and therefore violative of due process, is determined from the totality of the circumstances.' Commonwealth v. Carson, 559 Pa. 460, 480, 741 A.2d 686, 697 (1999), cert. denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000), abrogated on other grounds by Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003). 'Suggestiveness in the identification process is a factor to be considered in determining the admissibility of such evidence, but 'suggestiveness alone does not warrant exclusion.' ' Commonwealth v. Kubis, 978 A.2d 391, 396 (Pa.Super. 2009). Identification evidence will not be suppressed 'unless the facts demonstrate that the identification procedure was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' ' Commonwealth v. Burton, 770 A.2d 771, 782 (Pa.Super. 2001 ), appeal denied, 582 Pa. 669, 868 A.2d 1197 (2005), overruled on other grounds by 43 Circulated 10/30/2015 02:48 PM

Commonwealth v. Mouzon, 571 Pa. 419, 429, 812 A.2d 617, 623 (2002), quoting [sic] Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Photographs used in line- ups are not unduly suggestive if the suspect's picture does not stand out more than the others, and the people depicted all exhibit similar facial characteristics. Commonwealth v. Fisher, 564 Pa. 505, 520, 769 A.2d 1116, 1126-1127 (2001).

Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa.Super. 2011).

"With regard to the suggestiveness of an identification procedure, we have consistently

held that only if the totality of circumstances shows that the identification procedure was 'so

imperrnissibly suggestive as to give rise to a very substantial likelihood of irreparable

misidentification' will the evidence be suppressed." Commonwealth v, Blassingaie, 398

Pa.Super. 379, 393, 581 A.2d 183, 189 (1990) citing Commonwealth v. Monroe, 373 Pa.Super.

618, 622-23, 542 A.2d 113, 114-15 (1988), appeal denied, 522 Pa. 574, 559 A.2d 36 (1989)

quoting Simmons v. UnitedStates, 390 U.S. 377, 384, 88 S.Ct. 976, 971 (1968).

"The factors relevant to determining the reliability of the identification are: ' . . . the

opportunity of the witness to view the criminal at the time of the crime, the witness' degree of

attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated

at the confrontation, and the time between the crime and the confrontation. Against these factors

is to be weighed the corrupting effect of the suggestive identification itself.' " Commonwealth v.

Ransome, 485 Pa .. 490, 496, 402 A.2d 1379, 1381 (1979) quoting Manson v. Brathwaite, 432

U.S. 98, 114, 97 S.C( 2243, 2253 (1970). "An opportunity to observe, even for a limited

moment, can form an independent basis for an in-court identification." Commonwealth v.. Baker,

531 Pa. 541, 553, 614 A.2d 663, 669 (1992) citing generally Commonwealth v, Holland, 480 Pa.

202, 389 A.2d 1062 (1978).

44 Circulated 10/30/2015 02:48 PM

At trial, the victim described the two (2) men who robbed him, including specifically the

handgun wielding Defendant. N.T. 7/13/10, pp. 172-77, 201-203. During his testimony, the

victim explained there was nothing covering or obstructing his fully viewing the Defendant's

face throughout the entirety of the robbery. N.T. 7/13/10, p. 179. The victim identified the

Defendant as his firearm brandishing assailant. N.T. 7/13/10, p. 175.

After this in court identification, the victim explained the process by which he was

presented the photo array and the decision he made in so identifying Defendant Dale. N.T.

7/13/10, pp. 181-84. In sum, the victim went to the police station a few weeks after the robbery

where he was shown photographs by the detective. N.T. 7/13/10, p. 181. The victim testified

that he "easily picked out the guy who I saw" and circled the Defendant's picture on the array as

well as signed his name. N.T. 7/13/10, p. 182. See Commonwealth's Exhibit C-1-Photo Array.

A review of the totality of salient circumstances surrounding the robbery and the victim's

photo array identification of Defendant Dale show that this identification of the Defendant by the

robbery victim was not " ... so imperrnissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification." Commonwealth v. Blassingdale supra 398 Pa.Super.

at 393, 581 A.2d at 189 citing Commonwealth v. Monroe supra 373 Pa.Super. at 622-23, 542

A.2d at 114-15 quoting Simmons v. UnitedStates supra 390 U.S. at 384, 88 S.Ct. at 971.

Throughout the entire robbery, there was nothing obscuring the victim's view of

Defendant Dale's full face. N.T. 7/13/10, p. 179. Having driven slowly next to him as he

walked along, the victim's attention was understandably focused on the mini van parked at the

end of the block which within just seconds sped up toward the victim and Defendant Dale then

exited to perpetrate the robbery. N.T. 7/13/10, pp. 167-69. The Defendant was in the victim's

immediate proximity during the robbery being close enough to place a firearm against his body.

1 '\ Circulated 10/30/2015 02:48 PM

N.T. 7/13/10, pp. 169-77. The lighting conditions were at least adequate for identification

purposes, if not appreciable more than sufficient. N.T. 7/13/10, pp. 177-78. The victim's

description of his armed assailant to police authorities was consistent with Defendant Dale's

physical appearance. N.T. 7/13/10, pp. 172-73. The attire the victim described as what the

Defendant wore during the robbery was in accord with articles of clothing seized from Defendant

Dale incident to his subsequent unrelated arrest.35 N.T. 7/13/10, pp. 172-77. N.T. 7/14/10, pp.

4-7. See also Commonwealth's Exhibits C-5 - Black Long Sleeve Shirt; C-6 - Black Cargo

Pants; and C-7 - Stipulation. The victim readily identified Defendant Dale as one of his robbers

when shown the photo array and his identification of the Defendant was not only unequivocal,

but in the words of the victim, he "easily picked out the guy .... " N.T. 7/13/10, p. 182. See also

Commonwealth's Exhibit C-1 - Photo Array. At bar, the victim did not identify the gun

wielding robber as anyone other than Defendant Dale and had prior to his in court trial

identification of the Defendant so identified him on two (2) previous occasions. N.T. 7/13/10,

pp. 182-83. N.T. 2/19/10, pp. 9-10. See also Pa. SSJI (Crim) 4.07(A), 4.07(B) and

Commonwealth's Exhibit C-1-Photo Array. The totality of these circumstances relevant to the

reliability of the victim's identifying Defendant Dale combine to demonstrate his photo array

identification of the Defendant was proper and not subject to suppression. Commonwealth v.

Ransome supra 485 Pa. at 496, 402 A.2d at 1381 quoting Manson v. Brathwaite supra 432 U.S.

at 114, 97 S.Ct. at 2253.

35 As detailed prior, although a prosecution unrelated to the above-captioned matter, it was on the residentiai burglary arrest of the Defendant that the detective investigating the robbery came to develop Defendant Dale as a suspect and subsequently learned certain articles of clothing the Defendant was wearing when arrested were consistent with those the robbery victim described regarding his armed assailant. See Commonwealth v. Dale, No. 798-10 - Delaware County. See also N.T. 7/13/10, pp. 260-61; N.T. 7/14/10, pp. 4-7; and Commonwealth's Exhibit C- 7 - Stipulation. 46 Circulated 10/30/2015 02:48 PM

The Defendant relatedly contends that the composition of the photo array was such that

for not seeking its suppression his lawyers were professionally incompetent. More specificaJly,

Defendant Dale takes issue with what he believes is the inordinately large depiction of his

picture compared to the other photographs comprising the array. See Defendant's Petition, p. 9

and Petitioner's Response, pp. 5-6. See also Commonwealth's Exhibit C-1 - Photo Array.

Beyond th.is one (1) averred discrepancy, the Defendant must ignore the numerous similarities

between his picture and those additional photographs used for the array to reach the conclusion

that a motion to suppress the photo was meritorious and his lawyers were thus ineffective in not

pursuing its exclusion.

The photo array at issue was comprised of eight (8) total photographs. Each of the eight

(8) individuals depicted is an African American male. The relative ages of the depicted persons

are the same. All these photographs are focal "head shots" showing persons from the lower

neckline upward with slightly varying degrees of shirts and shoulders also depicted. The skin .

tone of each person shown is the largely same. The hairstyles of the individuals depicted are all

short cropped and each person shown bas a somewhat receding hairline resulting in similar

forehead expanses. Hair colors are the same. Facial shapes and features are consistent. All

persons shown have a moustache and hair about their chins in a goatee like fashion. None of the

individuals depicted have scars, tattoos, and/or distinguishing facial markings. There is a modest

variance by size among the pictures' depiction of the persons with five (5) of the eight (8)

photographs, including the Defendant's, appearing to be more in the nature of "close-ups"

compared to the remaining three (3). See Commonwealth's Exhibit C-1 - Photo Array

Even with its discrepancy between five (5) of the eight (8) pictures being somewhat

closer-up depictions, the totality of circumstances material to the photo array, including it

47 Circulated 10/30/2015 02:48 PM

otherwise showing individuals clearly similar in all salient characteristics of physical appearance

and the victim's immediately proximate and unobstructed opportunity to view his armed

assailant, demonstrate this identification procedure simply does not warrant its suppression.

Commonwealth v. Fulmore supra 25 A.3d at 346 quoting Commonwealth v. Kubis supra 978

A.2d at 396 (" 'Suggestiveness in the identification process is a factor to be considered in

determining the admissibility of such evidence, but suggestiveness alone does not warrant

exclusion.' "). Commonwealth v. Blassingdale supra 398 Pa.Super. at 393, 581 A.2d at 189

citing Commonwealth v. Monroe supra 373 Pa.Super. at 622-23, 542 A.2d at J 14-15 quoting

Simmons v. United States supra 3 90 U.S. at 3 84, 88 S. Ct. at 971.

In light of the foregoing, Attorney Modesti and Attorney Kramer not having lodged a

suppression filing seeking to preclude from the prosecution's use at trial Defendant Dale's

clothes seized incident to his unrelated, burglary arresr" and/or the victim's photo array

identification of him are not viable grounds for finding either and/or both lawyers ineffective.

For not having pursued these baseless claims, defense counsel cannot be deemed professionally

incompetent. See Commonwealth v. Carelli, 377 Pa.Super. 117, 125, 546 A.2d )185, 1189

(Pa.Super. 1988) (""When, as in this case, an assertion of ineffective assistance of counsel is

based upon the failure to pursu~ a suppression motion, proof of the merit of the underlying

suppression claim is necessary to establish the merit of the ineffective assistance of counsel

claim.") citing Kitrell v. Dakota, 373 Pa.Super. 66, 74-75, 540 A.2d· 301, 306 (1988), citing

Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305, 318-19

(1986). See also Commonwealth v. Thomas, 560 Pa. 249, 255-57, 744 A.2d 713, 716-17 (2000);

36 See Commonwealth v. Dale, No. 798-10 - Delaware County.

48 Circulated 10/30/2015 02:48 PM

Commonwealth v, Speight, 544 Pa. 451, 461, 677 A.2d 317, 322 (1996); and Commonwealth v.

Pierce supra 515 Pa. at 158, 527 A.2d at 975.

Material to this error assignment, Defendant Dale has not advanced with particularity

additional pre-trial pleadings his attorneys should have filed beyond the above discussed

suppression motion. The Defendant relatedly has not developed any support and/or meaningful

argument for the generalized claim that his lawyers were ineffective in not lodging other types of

pre-trial filings.37 See Statement of Matters Complained, No. 7. Accordingly, this appellate

complaint should be viewed as encompassing nothing more than a challenge to counsel's

stewardship in not pursuing the exclusionary challenges detailed above and warrants no further

commentary by this court. Commonwealth v. Natividad supra 595 Pa. at 209, 938 A:2d at 322-

23 citing Commonwealth v. Spotz supra 587 Pa. at 99, 896 A.2d at 1250. Commonwealth v.

Bracey supra 568 Pa. at 273, Fn. 4, 795 A.2d at 940, Fn. 4 (2001) (" ... [A)n undeveloped

argument, which fails to meaningfully discuss and apply the standard governing the review of

ineffectiveness claims, simply does not satisfy Appellant's burden of establishing that he is

entitled to any relief.")

VIL Was trial counsel Scott Kramer ineffective in failing to question Commonwealth witnesses on issues relevant to credibility, in/ailing to object to the admission of prejudicial evidence, in/ailing to object to prejudicial remarks and mis-stating [sic] of the evidence by the Commonwealth's attorney, and in/ailing to call alibi witnesses?

See Statement of Matters Complained, No. 8.

By way of this appellate complaint, Defendant Dale maintains that his trial counsel,

Attorney Kramer, was professionally incompetent during the course of trial relating to the

37 Defendant Dale is .mistaken in his sweeping assertion that neither Attorney Modesti nor Attorney Kramer filed pre-trial pleadings. Mr. Modesti lodged an Omnibus Motion regarding discovery and an extension of time in which to file additional counts on bis review of the discoverable materials while Mr. Kramer also lodged a Motion to Compel Discovery seeking relevant materials such as the photo array, cellular telephone records, and/or a community flyer. See Omnibus Motion and Motion to Compel Discovery. 49 Circulated 10/30/2015 02:48 PM

Commonwealth's presentation of its case concerning witness examination, admitted evidence,

and statements made during the prosecution's summation that be contends were improperly

prejudicial and/or misstatements of evidence. The Defendant also attacks his trial lawyer for

failing to call alibi witnesses. See Statement of Matters Complained, No. 8. As Defendant Dale

has failed to adequately demonstrate that Attorney Kramer's stewardship regarding any of these

claims meets the requisites necessary for an ineffective counsel finding, this appellate complaint

is meritless. Commonwealth v, Uderra supra 550 Pa. at 400, 706 A.2d at 339 and

Commonwealth v. Allen supra 557 Pa. at 144, 732 A.2d at 587.

The majority of Defendant Dale's complaints per this error assignment clearly implicate

matters of trial strategy. Hence, it must also be recognized that with respect to whether the acts

and/or omissions of a defendant's attorney were reasonable, defense counsel is afforded broad

discretion to determine tactics and strategy. Commonwealth v. Thomas supra 560 Pa. at 255-57,

744 A.2d at 716-17. The benchmark is not whether other alternatives were more reasonable

employing a hindsight evaluation of the case record, but whether counsel's decisions had any

reasoned basis to effectuate or advance a defendant's interests. See Commonwealth v. Speight

supra 544 Pa. at 461, 677 A.2d at 322 and Commonwealth v. Pierce supra 515 Pa. at 158, 527

A.2d at 975. The fact that the strategy of a defendant's lawyer in any given case was not

successful is irrelevant as long as the challenged actions and/or inactions of counsel "may be

viewed" as reasonably designed to benefit the client. Commonwealth v. Mickens, 409 Pa.Super.

266, 277, 597 A.2d 1196, 1202 (1991).

Defendant Dale first maintains through this error assignment that his trial counsel failed

to question the Commonwealth's witnesses as to issues relating to their credibility. See

i' I Circulated 10/30/2015 02:48 PM

Statement of Matters Complained, No. 8. A review of the record at bar readily reveals

otherwise.

Attorney Kramer questioned the victim, Darren Brooks, extensively as to his recollection

of the robbery clearly attempting to show the victim was at the very least mistaken in his

identification of Defendant Dale as the firearm brandishing robber. N.T. 7I 13110, pp. 188-222.

Relatedly, defense counsel undeniably inquired as to the location of the offense, the scene's

lighting, the duration of the robbery, and the appearanceof the two (2) offenders. N .T. 7/13/10,

pp. 189-92. Likewise, the Defendant's attorney also sought to place the victim's memory in

doubt by confronting him with statements be previously provided at the preliminary hearing and

the inconsistencies between those answers be bad formerly attested to and those at trial. N.T.

7/13/10, pp. 189, 193-95, 204-05, 214-17. See generally Pa. SSIT (Crim) 4.08A.

During the testimony of Reatha Johnson, the victim's mother, Attorney Kramer requested

Ms. Johnson to describe her recollection of the night in question, including the lighting at the

scene of the robbery, her vantage point in relation to the robbery's location, her inability to see

the robbery take place, and a description of the assailants' motor vehicle. N.T. 7/13/10, pp. 248-

54.

The Commonwealth's final witness at trial was Detective Houghton. N.T. 7/13/10, pp.

274-85. Defense counsel inquired into Detective Houghton's investigation surrounding the

robbery, including the following: The victim and his mother's description of the mini van

involved in the robbery; The detective's inability to locate the stolen cellular phone; and Toe

victim's two (2) statements to Detective Houghton relative to the descriptions of the offenders

and the robbery itself. N.T. 7/13/10, pp. 274-85.

51 Circulated 10/30/2015 02:48 PM

This review of the testimony shows that Attorney Kramer did consistently con.front all

the Commonwealth witnesses with the understandable goal of having the jury doubt their

individual and/or coUective credibility so as to undermine the persuasiveness and the overall

weightiness of the prosecution's evidentiary presentation. Specifically, Attorney Kramer sought

to demonstrate that the victim's inconsistent memory of the night and bis differing trial

testimony from the preliminary hearing, the mother of the victim's remembrance of the

location's lighting and her view of the robbery, as well as Detective Houghton's investigation

and the victim-witness' descriptions of the robbers and their motor vehicle combined to show the

prosecution's evidence was materially lacking. See Pa. SSJI (Crim) 2.04; 4.08A; 4.09; 4.15; and

4.17. N.T. 7/13/10, pp. 189, 193-95, 204-05, 214-17, 248-54, 274-85.

The record clearly revealing that trial counsel did challenge each prosecution witness

with the obvious goal of discrediting their respective testimony, this attack on Attorney Kramer's

stewardship is meritless. Commonwealth v, Pierce supra 515 Pa. ·at l 58, 527 A.2d at 975 citing

Strickland v, Washington supra 466 U.S. at 687, 104 S.Ct. at 2064.

Defendant Dale next maintains that his trial attorney was professionally incompetent by

failing to object to the Commonwealth's introduction of prejudicial evidence, prejudicial remarks

and/or misstatements of the evidence. See Statement of Matters Complained, No. 8. An

examination of the record clearly reveals these assertions of ineffectiveness are unfounded.

While not specifically identified by the Defendant's appellate complaint, bis response to

collateral counsel's "No Merit Letter" did advance a challenge to his trial attorney's decision to

refrain from objecting to the introduction of a shirt and a related claim he was professionally

52 Circulated 10/30/2015 02:48 PM

incompetent for failing to do so.38 See Petitioner's Response to "No Merit Letter," p. 11.

Defendant Dale previously averred that the prosecutor " ... present[ed] the shirt in a way that

would make it seem as though the petitioner was arrested while wearing the shirt on the day of

the robbery when it was clearly not the case." See Petitioner's Response to "No Merit Letter,"

p. 1.1. Defendant Dale further maintained via bis response that the trial testimony revealed the

perpetrator of the robbery to be wearing a black, hooded sweatshirt while the shirt introduced at

trial was a black, long-sleeve shirt. See Petitioner's Response to "No Merit Letter," p. 11.

At trial, the victim testified that the firearm brandishing of the two (2) robbers, Defendant

Dale, was wearing a black, hooded sweatshirt and a pair of black, cargo pants during the robbery.

N.T. 7/13/10, pp. 172, 202-203. Previously, the victim bad relayed this information to Detective

Houghton, who. considered the clothing description notable in ms investigation after having

communicated with Detective Herron following the Defendant's unrelated arrest in No. 798-10.

N.T. 7/13/10, pp. 270, 281. N.T. 7/14/10, pp. 4-7. See also Commonwealth's Exhibits C-5 -

Black Long Sleeve Shirt; C-6 - Black Cargo Pants; C-7 - Stipulation; and Commonwealth v

Dale, No. 798-10 -Delaware County.

Later, during the Commonwealth's presentation of its case a black, long-sleeve shirt and

a black, pair of cargo pants were entered into evidence through the use of a stipulation between

tbe attorneys which stated as follows: " ... that if called to testify Detective Richard Herron

would testify that at the time the Defendant, Louis Dale, was arrested be was wearing a black,

38 This appellate complaint of the Defendant is so broadly stated that it could encompass almost any prosecution testimony and/or evidence his trial attorney did not oppose. See Statement of Complaints, No. 8. It is only in the context of reviewing the Petitioner's Response to "No Merit Letter" and its attack on trial counsel not objecting to the Commonwealth introducing the shirt (Commonwealth's Exhibit C-5) recovered incident to his unrelated, residential burglary arrest (Commonwealth v. Dale, No. 798-10) that meaning can be given to this error assignment. Assuming as stated this complaint on appeal is sufficiently averred, it should for purposes of appellate review be limited to the prosecution's admission into evidence of the long sleeve shirt, absent defense opposition. Pa.R.A.P. 1925(b)(vii). See also Commonwealth v. Mann supra 820 A.2d at 794 and Commonwealth v. Cannon supra 954 A.2d at 1228. 53 Circulated 10/30/2015 02:48 PM

long sleeve shirt and a black, pair of cargo style Dickies brand pants." N.T. 7/14/10, pp.

4-7. See also Commonwealth's Exhibits C-5 - Black Long Sleeve Shirt; C-6 - Black Cargo

Pants; and C-7 - Stipulation.

On the record at bar, the Defendant's trial counsel through this stipulation

(Commonwealth's Exhibit C-7) and the related introduction of the clothing items

(Commonwealth's Exhibits C-5 and C-6) furthered two (2) obvious defense aims.

As discussed prior, the admitted articles of clothing (Commonwealth's Exhibits C-5 and

C-6) came into the prosecution's possession incident to Defendant Dale's subsequent, residential

burglary arrest.39 Absent the stipulation (Commonwealth's Exhibit C-7), the Commonwealth

would at trial have called Detective Richard Herron of the Sharon Hill Police Department to

authenticate this physical evidence. While Detective Herron most certainly would not have been

permitted to testify about the Defendant's involvement in the subsequent burglary, just the

testimonial appearance of a detective from a police agency other than that investigating the

robbery may very well have created a suggestion adverse to the defense. Even had Detective

Herron on being called to testify not been permitted to acknowledge his professional association

with a law enforcement agency other than that investigating the robbery, the detective's

testimony and the attorney's examination of him would have awkwardly confined and stilted

again raising a possible suggestion contrary to the Defendant's cause. These understandable

defense concerns were addressed through the use of this stipulation (Commonwealth's Exhibit

C-7) in lieu of Detective Herron appearing as a Commonwealth witness which wholly avoided

even a subtle inference of Defendant Dale's involvement in another, distinct criminal

prosecution.

:39 See Commonwealth v. Dale, No. 798-10 - Criminal Complaint and Probable Cause Affidavit

54 Circulated 10/30/2015 02:48 PM

Beyond precluding any suggestion of the Defendant's unrelated criminality.l'' his trial

attorney's agreement to the introduction of the black long sleeve shirt via the stipulation can

readily be seen to further his interests generally and more specifically, the presented alibi

defense. See Commonwealth's Exhibits C-5-Black Long Sleeve Shirt and C-7 - Stipulation.

In describing the clothing of his armed assailant, the victim consistently detailed his attire

relevant to this issue as a black "hoodie." N.T. 7/13/10, pp. 172, 202-203. The introduction of

the t-shirt by the prosecution created an obvious internal inconsistency within the

Commonwealth's own evidence. Its victim resolutely maintained his aimed robber wore a

hooded sweatshirt, yet in support of the same the prosecution through its investigators offered

only at-shirt. N.T. 7/13/10, pp. 'i 72, 202-203. N.T. 7/14/10, pp. 4-7. See also Commonwealth's

Exhibits C-5 - Black Long Sleeve Shirt and C-7 - Stipulation. This inherent conflict in the

Commonwealth's evidence as well afforded the defense an additional avenue to dispute the

victim's credibility not with its evidence, but more impactfully so with the visual, physical

exhibit (Commonwealth's Exhibit C-5) of the prosecution. By its introduction, the

Commonwealth was offering that its investigators believed the armed robber to have been clad in

the t-shirt which called directly into question the victim's consistent claim of a hooded

sweatshirt. N.T. 7/13/10, pp. 172, 202-203, 281-82. His relevant testimony being at odds with

this physical evidence the police recovered during the investigation, also called into question the

victim's critical identification of Defendant Dale in that if he could not accurately recount

something as straightforward as what the armed robber in his immediate proximity was wearing,

40 Assuring the jury did not directly or indirectly come to learn of Defendant Dale's unrelated, residential burglary arrest (Commonwealth v. Dale, No. 798-10) was a concern that went beyond tbe possible testimonial appearance of Detective Herron as addressed via the stipulation, Commonwealth's Exhibit C-7. On the defense's presentation of the alibi witness, Ms. Jenkins, this very same issue was discussed outside tbe jury's hearing among the court and attorneys to avoid even such an inadvertent disclosure. N.T. 7/14/10, pp. 16-17. 55 Circulated 10/30/2015 02:48 PM

the weight of the victim's identification should as well be discounted. See Pa. SSJI (Crim)

4.07 A, 4.09, 4.15. From the course of action the Defendant now collaterally attacks, his trial

attorney not surprisingly made during his summation similar type arguments. N.T. 7/14/10, pp.

49-50, 52,41 58.

Defendant Dale further challenges the stipulation and admission of the long sleeve shirt

(Commonwealth's Exhibit C-5) asserting that such was akin to a concession he was wearing that

t-shirt while arrested on the day of the robbery. See Petitioner's Response to "No Merit Letter,"

p. 11. Foremost, this assertion founds no of record support. The stipulation neither makes

mention of when Detective Herron arrested the Defendant for the unrelated, residential

burglary42 nor does the record otherwise suggest he was taken into custody on the same day as

the robbery. See Commonwealth's Exhibit C-7 - Stipulation. N.T. 7/13/10, pp. 257-85. To the

contrary, the detective in his testimony acknowledged that Defendant Dale was not arrested and

charged until some weeks subsequent to the robbery. N.T. 7/13/10, pp. 165, 181, 267.

Moreover, assuming arguendo that the stipulation (Commonwealth's Exhibit C-7) and material

case record could even somehow be construed to suggest the Defendant was arrested on the date

of the robbery then wearing the long sleeve t-shirt (Commonwealth's Exhibit C-5) and not the

hooded sweatshirt, such would have just benefitted the defense. With the victim insisting his

armed robber was wearing a black hooded sweatshirt, had the police later that same day

promptly arrested the Defendant and not found him to have the sweatshirt, the victim's

identification of Defendant Dale is again readily questioned as the time span to in some way

41 An understandable and repeated theme during trial counsel's closing arguments salient to the victim's testimony and credibility was that" ... if you were robbed you would know basic things." N.T. 7/14/10, p. 52. 42 The specifics of Detective Herron arresting the Defendant for the unrelated, residential burglary, including a date, were not referenced in the stipulation as an obvious guard against raising any suggestion adverse to Defendant Dale. See Commonwealth's Exhibit C-7 - Stipulation. See also Commonwealth v. Dale, No. 798-10. 56 Circulated 10/30/2015 02:48 PM

dispose of the sweatshirt is greatly minimized and the absence of the hooded sweatshirt much

harder for the prosecution to explain versus an arrest a number of weeks later.

The stipulation (Commonwealth's Exhibit C-7) and the related admission of the long

sleeve t-shirt (Commonwealtb's Exhibit C-5) together with the victim's unwavering description

of his armed attacker wearing a black hooded sweatshirt also created circumstances which

bolstered the Defendant's alibi defense. The victim's testimony established the gun wielding

robber was attired in one set of clothes, while the stipulated police testimony and prosecution

exhibit of the long sleeve t-shirt (Commonwealth's Exhibit C-5) arguably showed Defendant

Dale, at least partially, to be dressed differently in a second set clothing when arrested. This

positing of two (2) sets of clothes, one worn by the robber and the other being that of the

Defendant is wholly consistent with a defense that while the victim may have been robbed. it

was perpetrated by someone other than Defendant Dale, who at such a time was elsewhere.

Contrary to Defendant Dale's arguments that the same was in a largely unspecified

manne~ problematic for the defense and something his trial lawyer should have opposed, the

patent discrepancy between the long sleeve t-shirt (Commonwealth's Exhibit C-5) the

prosecution per such a stipulation (Commonwealth's Exhibit C-7) introduced and the hooded

sweatshirt its victim insistently maintained the gun brandishing robber was wearing on several

appreciable levels for those reasons described above can certainly be seen as beneficial to his

cause. See Petitioner's Response to "No Merit Letter," p. 1 l.

The Defendant's attack on his trial attorney's stewardship as to the stipulated testimony

of Detective Herron (Commonwealth's Exhibit C-7) and the related introduction of the long

sleeve t-shirt (Commonwealth's Exhibit C-5) is failing. Even assuming this error assignment

finds any needed support in the instant record, has the requisite merit, and Defendant Dale

57 Circulated 10/30/2015 02:48 PM

suffered the necessary prejudice, this challenged course of action certainly falls within the broad

tactical and strategic decision making discretion afforded a defendant's lawyer and thus, cannot

sustain a demand for collateral remedy. Commonwealth v. Thomas supra 560 Pa. at 25 5-57, 7 44

A.2d at 716-17. See also Commonwealth v, Spotz, 84 A.3d 294, 311 (Pa.Super. 2014) (A failure

to satisfy any prong of the Pierce standard requires a PCRA claim's rejection.) Furthermore, it is

immaterial that the strategy of defense counsel was unsuccessful as long as the tactical decisions

of a defendant's attorney may be seen as reasonably undertaken to effectuate a defendant's

interests. Commonwealth v. Mickens supra 409 Pa.Super. at 277, 597 A.2d at 1202. See also

Commonwealth v. Speight supra 544 Pa. at 461, 677 A.2d at 322. (An examination of the case

record with benefit of hindsight is not the collateral review standard, but whether the questioned

decisions of defense counsel had any reasoned basis to benefit the defendant.)

Defendant Dale further contends by this appellate complaint that Attorney Kramer was

professionally incompetent for failing to object to allegedly prejudicial remarks and/or

misstatements of evidence purportedly made by the Commonwealth's attorney.43 See Statement

of Matters Complained, No. 8. The Defendant previously maintained that his trial counsel

should have objected to statements made during the prosecution's summation where the

Assistant District Attorney made comments alluding to the theory that the Defendant's wife, Ms.

Jenkins, was the unknown female in the motor vehicle during the robbery and a reference that

Ms. Jenkins hated the police. See Defendant's Petition, pp. 25-27. See also Petitioner's

43 Similar to the vast majority of this error assignment's contentions, the generalization of this averment is so wide-ranging it could be seen to include almost any of the Assistant District Attorney's comments through trial as well as the Commonwealth's closing argument. See Statement of Complaints, No. 8. A review of the Defendant's petition and response to his collateral attorney's "No Merit Letter" are again needed in combination with this broadly stated appellate complaint to discern that which it advances on appeal. See Defendant's Petition, pp. 25-27 and Petitioner's Response to "No Merit Letter," pp. 19-21. Assuming this complaint on appeal is adequately alleged, it should for purposes of appellate review be limited to the collateral challengesdiscussed above. Pa.RA.P. J926(b)(vii). See also Commonwealth v. Mann supra 820 A.2d at 794 and Commonwealth v. Cannon supra 954 A.2d at 1228. 58 Circulated 10/30/2015 02:48 PM

Response to ''No Merit Letter," pp. 19-21. Despite Defendant Dale's assertions, a review of the

Commonwealth's summation reveals that he is at least partially mistaken in regard to the

prosecutor's comments, trial counsel did object to the eliciting of the referenced testimony, and

his attorney was justified in refraining from once more objecting during the Assistant District

Attorney's closing argument.

The Pennsylvania Superior Court has held that comments made during a closing

argument " ... must be considered in the context of the entire summation." Commonwealth v.

Johnson, 719 A.2d 778, 790 (Pa.Super. 1998), appeal denied, 559 Pa. 689, 739 A.2d 1056

(1999) (Emphasis added). See also Commonwealth v. Ligons, 565 Pa. 417, 430, 773 A.2d 1231,

1238 (2001) and Commonwealth v, Brown, 911 A.2d 576, 579 (Pa.Super. 2006) citing

Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa.Super. 2006) quoting Commonwealth v.

Correa, 444 Pa.Super. 621, 624, ·664 A.2d 607, 609 (1995). The Superior Court in

Commonwealth v. Raffensberger, 291 Pa.Super. 193, 207, 435 A.2d 864, 870-71 (1981) found

that the scope of this contextual review extends even further to include the contents of the entire

case. " ... [A]llegedlyprejudicial remarks must be read in the context of the case as a whole,

with a particular view to the evidence presented and reasonable inferences drawn therefrom, in.

order to determine whether they are indeed prejudicial." Id. (Emphasis added). See

Commonwealth v. Boone, 286 Pa.Super. 384, 398-400, 428 A.2d 1382, 1389-90 (1981) and

generally Commonwealth v. Bullock, 284 Pa.Super. 601, 426 A.2d 657 (1981).

During the course of closing summations, "[t)he prosecutor is free to argue that the

evidence leads to the conclusion of guilt, and is permitted to suggest all favorable and reasonable

inferences that arise from the evidence." Commonwealth v. Chamberlain, 612 Pa. 107, 153, 30

A.3d 381, 408 (2011) citing Commonwealth v. Sam, 535 Pa. 350, 362, 635 A.2d 603, 608 (1993).

59 Circulated 10/30/2015 02:48 PM ., :, I I A new trial will not be considered necessary 'Tw]here the prosecutor's arguments are supported

by the evidence and contain inferences which are reasonably derived therefrom."

Commonwealth v. Chamberlain supra 612 Pa. at 153, 30 A.3d at 408 citing Commonwealth v.

Bronshtein, 547 Pa. 460, 485, 691 A.2d 907, 919 (1997). See also Commonwealth v. Lacava,

542 Pa. 160, 181, 666 A.2d 221, 23 l ( 1995) and Commonwealth v. Hardcastle, 519 Pa. 236, 254,

546 A.2d 1101, 1109 (1988).

Furthermore, "[t]he prosecutor may ... argue to the jury that the evidence establishes the

guilt of the defendant and that certain facts in evidence are conclusive of such guilt."

Commonwealth v. Kaufman, 307 Pa.Super. 63, 71, 452 A.2d 1039, 1043 (1982) citing

Commonwealth v. Oglesby, 274 Pa.Super. 586, 595, 418 A.2d 561, 565 (1980). During the

course of his closing swnmation, a prosecutor may as well " ... attempt to meet the arguments

made by defense counsel in his summation." Commonwealth v. Kelly, 319 Pa.Super. 204, 211,

465 A.2d 1301, 1305 (1983) (Emphasis added) citing Commonwealth v. Van Cliff, 483 Pa. 576,

584, 397 A.2d 1173, 1177 (1979). See also Commonwealth v. Robinson supra 583 Pa. at 383,

877 A.2d at 448 citing Commonwealth v. Trivigno, 561 Pa. 232, 244, 750 A.2d 243, 249 (2000).

See also Commonwealth v. Hardcastle supra 519 Pa. at 254, 546 A.2d at 1 1 09 quoting

Commonwealth v. Barren, 501 Pa. 493, 498, 462 A.2d 233, 23·5 (1983).

I In a closing argument, " ... it is improper for a prosecutor to offer any personal opinion I l as to the guilt of the defendant or the credibility of the witnesses ... ;" however, an Assistant I I District Attorney may " ... summarize the evidence presented, to offer reasonable deductions and I inferences from the evidence, and to argue that the evidence establishes the defendant's guilt." l Commonwealth v. Thomas, 618 Pa. 70, 54 A.3d 33~, 338 (2012) citing Commonwealth v. I Hutchinson, 611 Pa. 280, 25 A.3d 277, 307 (2011) and Commonwealth v. Chamberlain supra I 60 Circulated 10/30/2015 02:48 PM I:.

612 Pa. at 152, 30 A.3d at 408. The accepted goal of the prosecutor's closing summation is to

" . . . present the facts in a manner that will lead the jury to a dispassionate and objective

evaluation of those facts and will produce a judgment warranted by the evidence."

Commonwealth v, Turner, 390 Pa.Super. 216, 222, 568 A.2d 622, 625 (1989) citing

Commonwealth v. Davis, 363 Pa.Super. 562, 583, 526 A.2d 1205, 1216 (1987), allocatur denied,

518 Pa. 624, 541 A.2d 1135 (1988).

A Commonwealth's attorney will not be found to have advocated impermissibly and

hence committed "reversible error" during his closing " ... unless the unavoidable effect of such

comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward

the defendant so that they could not weigh the evidence objectively and render a true verdict."

Commonwealth v. Nicholson, 308 Pa.Super. 370, 384, 454 A.2d 581, 588 (1982) quoting

Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669, 673 (1974). See also

Commonwealth v. Boone, 287 Pa.Super. 1, 6, 428 A.2d 1382, 1389 (1981) and Commonwealth v.

Ligons supra 565 Pa. at 430, 773 A.2d at 1238 citing Commonwealth v. Morales, 549 Pa. 400,

423, 701 A.2d 516, 527-28 (1997). See also Commonwealth v. Turner supra 390 Pa.Super, at

223, 568 A.2d at 625 (Referred to in Turner as the "unavoidable prejudice test"). "Whether a

reversal of judgment is required depends on whether the remarks made by the prosecutor are of

I such a nature that they would seriously threaten the jury's objectivity and deprive the accused of I a fair trial." Commonwealth v. Gruff, 822 A.2d 773, 782 (Pa.Super. 2003) quoting l Commonwealth v. Carter, 537 Pa. 233, 264, 643 A.2d 61, 76 (1994). The court in

I Commonwealth v. Guilford relatedly held that "[a] new trial is not mandated every time a

I prosecutor makes an intemperate or improper remark." Commonwealth v. Guilford, 861 A.2d

.•·1 I l' Circulated 10/30/2015 02:48 PM

365, 371 (Pa.Super. 2004). See also Commonwealth v. Ervin, 766 A.2d 859, 864 (Pa.Super.

2000).

The decision as to the prejudicial quality of the statements by the prosecution offered in

summation is for the trial judge. Commonwealth v. Williams, 289 Pa.Super. 388, 393, 433 A.2d

505, 508 (1981) citing Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975).

Moreover," ... the remedy to be applied in each case is within the discretion of the trial judge."

Id. See also Commonwealth v. Silvis, 445 Pa 235, 237, 284 A.2d 740, 741 (1971).

l To properly address Defendant Dale's present error assignment, an examination of not I l only material testimonial evidence, but also of defense counsel's closing argument and the I Assistant District Attorney's summation must be undertaken. Commonwealth v, Raffensberger I supra 291 Pa.Super. at 207, 435 A.2d at 870-71 and Commonwealth v. Johnson supra 719 A.2d I' I at 790. I Throughout the trial, the prosecutor and defense counsel both inquired of the witnesses a I I description of a female passenger in the robbers' mini van. N.T. 7/13/10, pp. 170, 197, 229, 233, l I 281. Similarly, the Assistant District Attorney and defense counsel both questioned Ms. Jenkins

I' about her failure to speak to the police regarding the Defendant's alibi and the reasoning behind

I' her choice to not come forward earlier with such information. N.T. 7/14/10, pp. 18-23, 28. l Following both the Raffensbergerand the Johnson courts' directions, the relevant portions of the I I trial testimony are detailed below. Commonwealthv. Raffensbergersupra and Commonwealth v. J Johnson supra.

During the Commonwealth's and the defense's examinations, the victim testified that I I there was a female passenger in the motor vehicle throughout the course of the robbery. N.T. I 7/13/10, pp. 170, 197. On being pressed for a description by the prosecution, the victim relayed I 62 Circulated 10/30/2015 02:48 PM

I that the female passenger was an African American woman who " . . . bad a bob cut, leather

I r jacket, light-skinned like a little bit lighter than me, and she stayed in the passenger seat the

I whole time of the Robbery." N.T. 7/13/10, p. 229. Following this initial description by the

/ victim, Attorney Kramer con.firmed the victim's description of the female, including her type of

hairstyle. N.T. 7/13/10, p. 233. Subsequently, during his examination of Detective Houghton,

Attorney Kramer also inquired as to the victim's past description of the unknown female. N.T.

7/13/10, p. 281.

Later, the Defendant's wife, Ms. Jenkins, testified in support of the Defendant's alibi. I N.T. 7/14/10, pp. 10-29. In its examination of Ms. Jenkins, the prosecutor sought a sidebar to I l preemptively halt any prejudicial statement from emerging during his subsequent line of I questioning regarding Ms. Jenkins' hair. N:T. 7/14/10, pp. 23-27. During this sidebar, defense l I counsel repeatedly objected to the prosecution's forthcoming inquiries maintaining any l consideration of Ms. Jenkins hair was irrelevant. N.T. 7/14110, pp. 24-25. In response, the court

explained to counsel that a challenge of relevancy was inadequate to sustain the objection. N.T.

7/14/10, p. 26. The Commonwealth's attorney then continued with his examination as follows:

Mr. Miller:

l Ms. Jenkins, just one last question that I have. l Ms. Jenkins: I I Okay. I Mr. Miller:

It would be fair to describe your haircut as a bob style haircut, wouldn't it?

Ms. Jenkins:

Thi s.? 63

I' .· Circulated 10/30/2015 02:48 PM

Yes.

Ms. Jenkins: I wear wigs so I wear different styles ...

Okay. Well ...

Ms. Jenkins: ... to be honest with you. But this, yes. But I wear different colors.

N.T. 7/14/10, p. 27. Attorney Kramer also inquired as . to Ms. Jenkins' hairstyle after the prosecutor's

examination. N.T. 7/14/10, pp. 28-29. Unquestionably, the Commonwealth's justification for such a line of questioning was to

have the jury question the credibility of Ms. Jenkins and simultaneously the Defendant's alibi by

indicating that the unknown female passenger in the motor vehicle could likely have been Ms.

Jenkins. N.T. 7/14/10, p. 25. Further testimony from Ms. Jenkins supported this theory and the

Commonwealth's understandable effort to call into question Ms. Jenkins' testimony as

suspicious. Prior to the Commonwealth's questions concerning Ms. Jenkins' hairstyle, she testified

that one (1) of the reasons she felt uncomfortable going to the police station to inform the

officers of Defendant Dale's innocence was "I wasn't going to go there and talk to (Detective

Houghton] ... because I would have probably got locked up also." N.T. 7/14/10, p. 21. As

Detective Houghton had previously testified that his investigation of the motor vehicle revealed

that the van was jointly owned by Defendant Dale and Ms. Jenkins ta.ken together with the 64 Circulated 10/30/2015 02:48 PM

J' !I l victim's description of the mini van's African American female passenger being a consistent

I detailing of her, it was a logical and reasonable inference for the Commonwealth's attorney to

l advance the theory that the unknown female passenger in the motor vehicle was quite possibly

I Ms. Jenkins. N.T. 7/13/.10, pp. 229, 233-34, 265. N.T. 7/14/10, pp. 50-51, 56-57, 76-79. See I also Commonwealth's Exhibit C-3 = Abstract from Pennsylvania Department of Transportation.

After recognizing this relevant testimonial evidence, a review of the salient portions of I the defense counsel's summation and the Assistant District Attorney's closing argument is as I well essential to properly examine this assignment of error. I I The material portion of Mr. Kramer's closing statements is that below:

... The second description, front passenger, black female, dark skin, straight black hair cut in bobby style, black leather jacket with epaulets on right shoulder, white or tan in color hoodie under jacket, between 19 to 20 years old. . ..

. . . And regarding the alibi, the Commonwealth is going to tell you that well, you can't believe her. That's the wife, the mother of the children she has no credibility. She's just here to help him out. She's here to tell the truth. Why? Because she was afraid to tell the truth to the one person that's supposed to protect the community. The police. Why? Because the police went in, they were trying to do their job, they got a little crazy, they made threats against her son. What mother is going to trust an individual that made threats against her own kid? What mother would do such a thing? ....

N.T. 7/14/10, pp. 50-51, 56-57.

The salient portion of the Assistant District Attorney's closing argument is below:

... But I'll tell you somebody who does have a reason to lie. And that's Shavon Jackson - or Jenkins. I'm sorry. The defense's alibi witness, I guess. And Mr. Kramer is right. Typically there's a whole thing we argue that she's got a motive to lie. This is her husband, boyfriend, three kids. Wouldn't want anything bad to happen to him and things like that. That's her basis. But I don't know if I'm going to go with that. She said they were at home watching wrestling 8:00 to 10: 15. That's what they do every 65 /) Circulated 10/30/2015 02:48 PM

ii r

I I Friday. I'm actually starting to think that maybe they were together. Maybe they were together that night. You know why I think that? Because we have a female person sitting in the passenger seat of this vehicle that pulled up when Darren Brooks was robbed. And that female was dark skinned, straight black hair l in a bob cut, black leather jacket. It goes on and on and on. We I have a black female with a bob cut sitting in the passenger seat of l I the vehicle owned by Louis Dale, also owned by Shavon Johnson - I I mean Jenkins. And I asked her. She does say I wear wigs and I weaves. I have different hair. But she said the one I'm wearing I today is described as a bob cut. So I don't know what to tell you to

l I do with the alibi defense. I don't know which way you're going to go with that. I submit to you that it's not a credible alibi defense. Whether or not you believe she was with him or not during the I I commission of. this crime, she has a bias and a motivation to lie. I Not only that, but she even testified yes, I talked to my - Louis I Dale's attorney and he said, you know, contact the police about I making a statement about the alibi, that you were with him that

I I night. And she testified yes, Detective Houghton contacted me and we set up a meeting so I could go provide this information to him, but I didn't show up because I hate cops. So that's a good reason. I I hate cops so who cares what happens to Louis Dale. I have l I information that could save his skin, but I hate cops so I'm not I going there. Forget about it. That's not reasonable. That's not I reasonable doubt. That's ridiculous. That's a giant lie. She didn't II go to the cops because she's scared. She's going to have to lie to the cops. She's going to have to tell them something that's not I true. She's going to have to go there and possibly be identified as I I this woman who was also involved in this Robbery. And Detective I Houghton testified, when I called him back, that he was provided

I I the names, by me, and asked to go check out the alibi and get some information on this. And he said be called, which she said also, and set up a meeting at 12:00. She never called, never showed up,

I nothing. And Mr. Kramer made a big deal about Detective Houghton not following up, not calling again. But again, you heard him testify. She's the one with the information to provide to me to

I' help a man that I've already arrested because I already compiled enough evidence against him. She should come forward to me and provide me with the information that might change something. I' I've already completed my investigation. He's been arrested and charged. But she doesn't do that. She doesn't come forward at the prelim. She doesn't come forward when he's arrested to tell anybody. She doesn't come forward until today, July 14. She's got this alibi information and she leaves the sword dangling over Louis Dale's head for that long? She could have come and told that in April and she didn't. All this time making him sweat saying 66 Circulated 10/30/2015 02:48 PM

~ . I'

II I do have an alibi for you, Louis. I'm going to come in and tell the Court you were with me, but I'm going to make it dramatic. I'm going to wait until the last day of trial, of your Robbery trial, to tell anybody about it. Maybe that's how she wanted to do it.

N.T. 7/14/10, pp. 76-79.

During the course of the victim's testimony, the description of the unknown female I I passenger in the motor vehicle was emphasized by both the prosecution and the defense. N.T. I

I' 7/13/10, pp. 170, 197, 233. Such a description was further revisited during the cross examination

I' of Detective Houghton. N.T. 7/13/10, p. 281. Toe focus of these inquiries' related not only to

I the presence of the female passenger, but also a description of this person, inter alia, particularly l I her hairstyle. N.T. 7/13/10, pp. 229, 233, 281. N.T. 7/14/10, p. 27. l I Defendant Dale presented an alibi witness, Ms. Jenkins, who closely matched the I

II description of the unknown female passenger and on the day of her testimony wore her hair in a

manner that she clearly stated was a bob or bobby cut, the same style as was previously testified II to by prior witnesses, including the robbery victim, regarding the mini van's female passenger. l N.T. 7/14/10, p. 27. I I The Commonwealth's attorney was able to respond to both the evidence brought forth at I trial and the related argument presented by defense counsel during his closing summation where

Attorney Kramer made mention of the unknown female passenger's description that included a

focus on hairstyle. N.T. 7/14/10, pp. 50-51. I I The prosecution's comments relating to Ms. Jenkins' contempt for police was also I j elicited throughout the course of her testimony. N.T. 7/14/10, pp. 18-23, 28. In his examination,

the prosecutor inquired as to why Ms. Jenkins bad not come forward at an earlier date with this

information relating to Defendant Dale's alleged innocence. N.T. 7/14/10, pp. 18-23. Ms.

Ii .I Jenkins detailed that she did not contact the police due to statements purportedly made by police ,.. I, :1 67 I: Circulated 10/30/2015 02:48 PM

J officers to her son during the search of her residence.44 N.T. 7/14/10, p. 18. Ms. Jenkins

testified that when asked by Detective Houghton to visit the police station concerning the

Defendant's alibi she elected not to do so because she felt uncomfortable visiting with law

enforcement and feared she would be arrested. N.T. 7/14/10, pp. 20-21.

The prosecutor during his closing argument was allowed to " ... argue that the evidence

leads to the conclusion of guilt, and is permitted to suggest aU favorable and reasonable I I inferences that arise from the evidence." Commonwealth v. Chamberlain supra 612 Pa. at 153,

/ 30 A.3d at 408 citing Commonwealth v. Sam supra 535 Pa. at 362, 635 A.2d at 608. On

I reviewing this appellate complaint in the context of the trial as a whole, the Assistant District

Attorney was within the bounds assigned by him in his prosecutorial duties to "argue the

evidence," offer reasoned inferences based upon the evidence that had been presented at trial,

and attempt to meet the arguments made by defense counsel in his closing. N.T. 7/13/10, pp.

170, 197, 229, 233, 281. N.T. 7114/10, pp. 21, 27-29, 50-51, 56-57, 76-79. See also

Commonwealth v. Kelly supra 319 Pa.Super. at 211, 465 A.2d at 1305 citing Commonwealth v.

Van Cliffsupra 483 Pa. at 584, 397 A.2d at 1177.

Further, the prosecution's challenged statements read in the context of the entire case,

I including both defense counsel's and the prosecutor's examinations and closing summations, I l clearly reveals these corrunents were not impermissible. The Commonwealth's attorney argued I l the evidence that was presented at trial and did not "prejudice the jury, forming in their minds I I fixed bias and hostility toward the defendant so that they could not weigh the evidence I I objectively and render a true verdict." Commonwealth v. Nicholson supra 308 Pa.Super. at 384, I 44 Detective Houghton testified for a second time in rebuttal immediately following the completion of Ms. Jenkins' testimony. N.T. 7/14/10, p. 30-36. Detective Houghton explained that not only was Ms. Jenkins absent dunng the search of the residence, but further that he did not have any interaction witb any of Ms. Jenkins' children, notably her son, during the search. N.T. 7/14/10, p. 32. 68 I Circulated 10/30/2015 02:48 PM

454 A.2d at 588 quoting Commonwealth v. McNeal supra 456 Pa. at 400, 319 A.2d at 673.

Hence, Attorney Kramer may not be deemed professionally ineffective for failing to object to

these comments and arguments of the Commonwealth as an attorney need not pursue a meritless

I course of action. Commonwealth v. Sneed supra 616 Pa. at 33, 4,5 A.3d at 1115 and

Commonwealth v. Hutchinson supra 521 Pa. at 488, 556 A.2d at 372. I Moreover, an examination of the record demonstrates and the Defendant in his original I collateral petition also acknowledged that Attorney Kramer did initially object to the I Commonwealth's line of questioning relating to Ms. Jenkins being the unknown female I passenger. See Defendant's Petition, p. 24. Despite Attorney Kramer arguing that the inquiries

I l were irrelevant, the court did not share his viewpoint. N.T. 7/14/10, pp. 24-27. Although the

Defendant challenged trial counsel's failure to object during the Commonwealth's summation it

is clearly evident that Attorney Kramer did protest the prosecutor's questions and was overruled

by this court. As such a repeated objection of Attorney Kramer was refused by the court, he may

not be deemed ineffective for failing to continuing to oppose a line of questioning and/or

I' subsequent argument referencing the resulting testimony where he knew the court had not ruled

in his favor and having no reason to believe the court would reverse its prior determination.

Commonwealth v. Sneed supra 616 Pa. at 33, 45 A.3d at 1115 and Commonwealth v. Hutchinson

supra 521 Pa. at 488, 556 A.2d at 372.

Relatedly, Attorney Kramer's decision to not later object during the Commonwealth's

summation can be viewed as a strategic decision to refrain from further drawing the jury's

attention to the possibility that Ms. Jenkins may have been the unknown female in the mini van

used during the robbery and underscoring the resulting inference that her alibi testimony was

thus patently false. As defense counsel is afforded broad discretion to make strategic and tactical

69 Circulated 10/30/2015 02:48 PM

trial determinations, this decision by Attorney Kramer cannot be viewed as his being

professionally ineffective in his representation of the Defendant. See Commonwealth v. Thomas

supra 560 Pa. at 255-57, 744 A.2d at 716-17. See also Commonwealth v. Speight supra 544 Pa.

at 461, 677 A.2d at 322; Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2d at 975; and

Commonwealth v. Mickens supra 409 Pa.Super. at 277, 597 A.2d at 1202.

Lastly, the Defendant per this assignment of error maintains that Attorney Kramer was

professionally incompetent " ... in failing to call alibi witnesses." See Statement of Matters

Complained, No. 8. Trial counsel most certainly pursued an alibi defense and in support of the

same presented the testimony of Ms. Jenkins. N.T. 7/14/10, pp. 10-29. Thus, the only

potentially viable ground to possibly sustain this collateral attack is Attorney Kramer's tactical

decision not to call additional alibi witnesses.

As part of his comprehensive, advocate's review of Defendant Dale's initial PCRA

petition, collateral counsel salient to these considerations, inter alia, inspected and reviewed

Attorney .Kramer's file, including all documentation generated and obtained in trial preparation.

See "No Merit Letter," p. 2. Appointed counsel relatedly communicated with Attorney Kramer

and obtained further information relevant to the Defendant's prose collateral claims. See "No

Merit Letter," p. 2. There were as well communications between Defendant Dale and his

appointed lawyer which included the Defendant providing PCRA counsel with some additionally

requested information and/or documentation. See "No Merit Letter," p. 2. After reviewing the

case record and this supplemental information in combination with his material legal research,

appointed counsel per his "No Merit Letter" noted and concluded as follows:

Trial counsel's failure to call or interview a particular witness does not constitute ineffective assistance of counsel without some showing that said witness' testimony would have been beneficial or helpful in establishing the asserted defense. The Defendant 70 Circulated 10/30/2015 02:48 PM

further bears the burden of demonstrating that the testimony of the uncalled witness would have been helpful. Com. v. Shaffer, 763 A.2d 411 (Pa.Super. 2000). To be entitled to relief, a Defendant must establish that the witness existed, the witness was available, counsel knew or should have known of the identity of the witness, the witness would have testified on Defendant's behalf, and the Defendant was prejudiced by the absence of the testimony which would have been offered. Com. v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012); Com. v. Dennis, 17 A.3d 297 (Pa. 2011); Com. v. Speight, 677 A.2d 317, 323 (Pa. 1996).

I Counsel has a general duty to undertake reasonable investigations or make reasonable decisions that render particular investigations l unnecessary. Commonwealth v. Basemore, 744 A.2d 717 (Pa. 2000). Counsel's unreasonable failure to prepare for trial is "an abdication of the minimum performance required of defense I counsel." Commonwealth v. Johnson, 866 A.2d 523 (Pa. 2009); Commonwealth v. Brooks, 839 A.2d 245 (Pa. 2003). The duty to l investigate may include a duty to interview certain potential witnesses; and a prejudicial failure to fulfill this duty may lead to a I finding of ineffective assistance of counsel. See Commonwealth v. ~' 644 A.2d 705, 709 (Pa. 1994); Commonwealth v. 'Weiss, 606 A.2d 439 (Pa. 1992)(claim has arguable merit where trial counsel fails to call or interview a particular witness).

Where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that bad some reasonable basis to effectuate the client's interest. Com v. Lesko, 15 A.3d 345, 380 (Pa. 2011). j Issue #2 suggests that prior counsel was ineffective for failing to l interview and/or otherwise call a pair of alibi witnesses who would have allegedly provided beneficial testimony concerning

l Defendant's whereabouts at the time of the robbery. The record initially indicates that Defendant's wife, Shavon Jenkins testified in Defendant's case to assist in the alleged alibi IJ'.T'f, 7/14/10, pp. l 10-29]. Isaiah Matthews (stepson of Defendant) and Natasha Dale (sister of Defendant) were also interviewed in advance of trial.4 l Based on this investigation, the undersigned submits that trial counsel strategically determined that 110 exculpatory evidence would have been elicited, and it was otherwise not in Defendant's best interest to call said witnesses. While there did not appear to be an issue regarding the availability of said witnesses> the use of such testimony, if elicited, would not have been help/ ul to the Defendant. Counsel clearly had a reasonable basis for not utilizing said witnesses at trial, which rationale concludes that 71

l II Circulated 10/30/2015 02:48 PM

counsel rendered EFFECTIVE assistance. Counsel further conducted appropriate pre-trial investigation relative to the substance of the purported testimony. For the foregoing reasons, the claims related to inadequate investigation and failure to call witnesses lack merit under the PCRA and accompanying case law.

I Footnote 4. Moreover, no witness affidavits containing the I purported, beneficial testimony have been provided to the undersigned, a necessary component of any such claim under the I PCRA.

"No Merit Letter," pp. 5, 6, and 7, Fn. 4. (Emphasis added).

Defendant Dale's challenges encompassing this appellate complaint averring Attorney

Kramer's ineffectiveness fail for these reasons detailed above to satisfy all three (3) of the

requisite Strickland prongs and his trial counsel thus cannot be deemed ineffective so as to

warrant Post Conviction Relief Act remedy. Commonwealth v. Pierce supra 515 Pa. at 158, 527

A.2d at 975 citing Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct. at 2064. Attorney

Kramer clearly questioned the Commonwealth's witnesses with the goal of undermining their

I credibility and was as well justified in his decision to refrain from objecting to the introduction

of the attire, including the long sleeve shirt (Commonwealth's Exhibit C-5). Also, the record

clearly establishes that defense counsel did protest the prosecution's eliciting purportedly

prejudicial testimony, but that he sensibly chose during the Commonwealth's closing not to once

more object to the already allowed testimony's referencing. Finally; despite the Defendant's

assertion otherwise, Attorney Kramer did call Ms. Jenkins as an alibi witness and his election to

present no such additional witnesses was reasonably based on pre-trial investigation and

interviews and grounded in advancing Defendant Dale's interests. These decisions by Attorney

Kramer were accordingly reasoned and justified therefore making the Defendant's present

appellate complaint meritless.

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VIII. Did the trial court err in dismissingAppellant'sfirst PCRApetitio11without a hearing?

See Statement of Matters Complained, No. 3.

Per this error assignment on appeal, the Defendant maintains that the court erroneously

dismissed his original PCRA petition, absent an evidentiary hearing. See Statement of Matters

Complained, No. 3. This court to the contrary concluded that no reasoned purpose would be

served by any further proceedings as there were no genuine issues of material fact and Defendant

Dale thus was not entitled to a hearing prior to the court dismissing his initial collateral petition. .1 See Dismissal Notice of Original Collateral Petition and Order dated July 29, 2014. See also 'l Order dated December 2, 2014. Moreover, this review of the Defendant's collateral petition and I I related error assignments on appeal demonstrates that the dismissal of his original collateral

petition, without a hearing, was not misguided.

"The right to an evidentiary hearing on a post-conviction petition is not absolute. A

PCRA court may decline to hold a hearing if the petition's claim is patently frivolous and l without a trace of support in either the record or from other evidence." Commonwealth v. Payne, l I 794 A.2d 902, 906 (Pa.Super. 2002) citing Commonwealth v. Jordan, 772 A.2d 1011, 1014

I (Pa.Super. 2001). "The control1ing factor in determining whether a petition may be dismissed

l without a hearing is the status of the substantive assertions in the petition." id. at 906 quoting I Commonwealth v, Weddington, 514 Pa. 46, 50, 522 A.2d 1050, 1052 (1987). I Pennsylvania Rule of Criminal Procedure 907(1) in salient part states:

If the judge is satisfied from this review that there are no genuine

I issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would

I be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal ....

Pa.R.Crim.P. Rule 907(1). 73 Circulated 10/30/2015 02:48 PM

"A reviewing court on appeal must examine each of the issues raised ... in light of the

record to determine whether the PCRA court erred in concluding that there were no genuine

issues of material fact and denying relief without an evidentiary hearing." Commonwealth v.

DuPont, 860 A.2d 525, 530 (Pa.Super. 2004) quoting Commonwealth v. Jordan, 772 A.2d 1011,

1014 (Pa.Super. 2001). See also Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.Super.

2008).

On July 29, 2014, the court entered its two (2) notices of dismissal as to both Defendant

Dale's original and subsequent PCRA petitions.45 See Dismissal Notices and Orders, dated July

29, 2014. The dismissal notice relating to the Defendant's initial collateral petition was entered

after a review of appointed collateral counsel's "No Merit Letter" and the court's independent

examination of the salient case record. See Dismissal Notice of Original Collateral Petition and·

Order, dated July 29, 2014. See also Defendant's Petition. The court resultantly determined that

the Defendant's initial collateral petition lacked genuine issues of material fact. See Dismissal

Notice of Original Collateral Petition and Order, dated July 29, 2014.

Having concluded that Defendant Dale's initial PCRA petition lacked any genuine issues

of material fact, the court relatedly determined a hearing was unwarranted. See Commonwealth

v. DuPont supra 860 A.2d at 530 quoting Commonwealth v. Jordan supra 772 A.2d at 1014.

The Defendant's appellate complaints relating to the dismissal of his original collateral petition

and the averments pertaining to his pre-trial, trial, and collateral counsel's professional

incompetence as detailed above reveals that such errors were meritless. 45 This complaint on appeal by its plain terms and the statement of appellate complaints generally does not take issue with the court having dismissed the Defendant's subsequent PCRA petition, absent a bearing. See Statement of Matters Complained, No. 3 and Defendant's Subsequent Petition. Hence, this court will offer no discussion regarding its decision to dismiss. without a hearing, Defendant Dale's second collateral pleading. See generally Dismissal Notice of Subsequent Petition dated July 29, 2014. Pa.R.A.P. 1925(bX4)(vii) ("Issues not included in the statement ... are waived." See also Commonwealth v, Mann supra 820 A.2d at 794, and Commonwealth v, Cannon supra 954 A.2d at 1228. · 74 Circulated 10/30/2015 02:48 PM

IX. Did the Commonwealth's attorney commit instances of misconduct by mis-stating [sic]the evidence, and making highly prejudicial comments and inferences not supported by the evidence at trial?

See Statement of Matters Complained, No. 9.

The Defendant has failed in bis final error assignment to detail with even modest

particularity those purported instances of prosecutorial misconduct this appellate complaint

largely references. There is simply no sufficiently descriptive allegation of what, when, and/or

how any purported actions of the Assistant District Attorney constituted improper prosecutorial

conduct, despite the bald averment that there were repeated and "highly prejudicial" "instances"

of the same. See Statement of Matters Complained, No. 9. It is only on a review of Defendant

Dale's initial PCRA filing as well as its allegations regarding the Commonwealth's closing

argument and his trial attorney not objecting to certain of the prosecution's summation that a

modicum of appreciable meaning can be imported to this error assignment. See Defendant's

Petition, pp. 25-27.

However, when this appellate complaint is viewed in the context of the original collateral

pleading it is seemingly nothing more than a generalized repetition of that advanced, in part, via

error assignment eight (8) fully discussed above. See Statement of Matters Complained, No. 8.

("Was trial counsel ... ineffective ... in failing to object to prejudicial remarks and mis-stating

[sic] ofthe evidence by the Commonwealth's attorney.") If not just a restatement of appellate

complaint No. eight (8) warranting no additional comment from the court, ·this complaint on

appeal (No. 9) is by its plain terms so broadly vague as to be meaningless and should thus be

deemed waived. Alternatively, this error assignment if in some manner is seen to be a discreet

75 Circulated 10/30/2015 02:48 PM

claim beyond such advanced by Defendant Dale prior,46 it is not an actionable basis on which

Post Conviction Relief Act remedy can be grounded.

Pennsylvania Rule of Appellate Procedure 1925 provides "[tjhe Statement [of appellate

complaints] shall concisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues for the judge." Pa.R.A.P. 1925(b)(4)(ii)

(Emphasis added.) See also Order dated December 23, 2014. As the Superior Court in

Commonwealth v. Mann previously recognized:

Pa.R.A.P. 1925 is intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is thus a crucial component of the appellate process. Id. 804 A.2d at 37. 'When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review.' Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.Super. 2011). 'When an appellantfails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a Legal analysis which is pertinent to those issues.' In re Estate of Daubert, 757 A.2d 962, 963 (Pa.Super. 2003). . .. Appellant's claim was not specific enough to allow the trial court the opportunity to address the claim that he is now raising on appeal .... Accordingly, we find this issue to be waived.

Commonwealth v. Mann supra 820 A.2d at 794 (Emphasis added). See also Commonwealth v. Cannon supra 954 A.2d at 1228.

Defendant Dale's most generalized assertion that the Commonwealth's attorney

committed misconduct in the form of unspecified "prejudicial comments and inferences" is

lacking any required detail. Resultantly, this error assignment should be seen for appellate

purposes as waived. Id.

Furthermore, to be eligible for relief under the Post Conviction Relief Act a defendant

must establish by a preponderance of the evidence that the challenged conviction(s) resulted

46 See Statement of Matters Complained, No. 8. 76

... i ., II Circulated 10/30/2015 02:48 PM

from one (1) or more of the Act's specifically delineated errors and/or defects and that such have

not been previously litigated and/or waived. 42 Pa.C.S. § 9543(a)(1)(2)(3). See also

Commonwealth v. Banks, 540 Pa. 143, 148-49, 656 A.2d 467, 469 (1995).

The Defendant's bald assertion that the Commonwealth's attorney committed

prosecutorial misconduct is not within the parameters of the PCRA and that generally detailed

per this error assignment is not cognizab]e for remedy under the Post Conviction Relief Act. 42

Pa.C.S. § 9543(a)(2). Commonwealth v. Lutz, 788 A.2d 993, 995, Fn. 7 (Pa.Super. 2001) ("A

prayer for relief, however, which does not fall within the remedies afforded by the PCRA will

not constitute a PCRA petition"). See also Commonwealth v. Deaner, 779 A.2d 578, 580

(Pa.Super. 2001) and Commonwealth v. Tanner, 410 Pa.Super. 398, 405, 600 A.2d 201, 205

(1991) ("The PCRA limits the types of claims that are cognizable. Thus, the petitioner must

'plead and prove by a preponderance of the evidence' that the conviction or sentence resulted

from one or more of eight specified circumstances. See 42 Pa.C.S. § 9543(a)(2)(i)-(viii)").

Foremost, this complaint on appeal should be seen as waived given its lack of even

modest specificity. Alternatively, the averments underpinning this error assignment are simply

not grounds on which the Post Conviction Relief Act allows the sought after collateral remedy.

Finally, assuming this appellate complaint is not found to have been waived. and/or alleges a

cognizable basis for relief under the Act, it is simply a generalized restatement of error

assignment No. eight (8) requiring no additional comment by this court beyond that already

discussed in its addressing and concluding that supposed failure of trial counsel to object to the

discernable instances of claimed prosecutorial misconduct is without merit.

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X. CONCLUSION

The Superior Court has held that appellate review of a PCRA's dismissal is conducted:

[I]n the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super. 2010). This review is limited to the findings of the PCRA court and the evidence of record. Id. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. Id This Court may affirm a PCRAcourt's decision on any grounds if the record supports it. Id We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super. 2011). However, we afford no such deference to its legal conclusions. Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011); Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (2007). Further, where the petitioner raises questions of law, our standard of review is de nova and our scope of review is plenary. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 886 (2010).

Commonwealth v. Rykard supra 55 A,3d at 1183 quoting Commonwealth v. Ford supra 44 A.3d at 1194.

As recounted above, this court did not err in its dismissal of Defendant Dale's original

and subsequent collateral petitions as there were no genuine issues concerning any material fact,

Defendant Dale was not entitled to such post conviction collateral relief, this court lacked

jurisdiction relevant to the second collateral petition (Subsequent Petition), and/or any such

claim(s) had been waived, and no reasoned purpose was served by further proceedings. This

assessment of the Defendant's collateral petition further reveals that his pre-trial, trial, and

collateral attorneys cannot be deemed professional ineffective in their stewardship of Defendant

Dale's interests. These findings of this court are amply supported by the instant case record, and

it committed no related legal error. Commonwealth v. Rykard supra 55 A.3d at 1183 quoting

Commonwealth v. Ford supra 44 A.3d at 1194.

78 Circulated 10/30/2015 02:48 PM

For all of these reasons, this court's dismissal, absent a hearing, of Defendant Dale's

II original and subsequent collateral filings should be affirmed. I'!

BY THE COURT:

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