2 DISCUSSION OF THE ISSUES RAISED
I. DEFENDANT IS NOT ENTITLED TO AN EVIDENTIARY HEARING.
Defendant complains that the Court erred by dismissing his three failing averments
without a hearing. This argument is without merit.
"There is no absolute right to an evidentiary hearing on a PCRA Petition."
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. Ct. 2008). "A PCRA petitioner
is not entitled to an evidentiary hearing as a matter of right, but only where the petition
presents genuine issues of material fact." Commonwealth v. Keaton, 45 A.3d I 050, l 094
· (Pa. 2012). Pa. R. Crim. P. Rule 907 provides that courts have the discretion to dismiss a
PCRA petition without a hearing if the court finds that "there are no genuine issues
concerning any material fact and that the defendant is not entitled to post-conviction
collateral relief, and no purpose would be served by any further proceedings." "[T]o obtain
reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant
must show that he raised a genuine issue of fact which, if resolved in his favor, would have
entitled him to relief, or that the court otherwise abused its discretion in denying a hearing. 11
Commonwealth v. Sneed, 45 A.3d l 096, 1106 (Pa. 2012) Quoting; Commonwealth v,
D'Amoto, 856 A.2d 806, 820 (Pu. 2004).
Here, Defendant's argument that an evidentiary hearing should have been held prior
to the dismissal of his PCRA Petition must fail because the substantive arguments advanced
by Defendant are without merit. As will be discussed below, Defendant failed to meet his
burden of proving by a preponderance of the evidence that his trial counsel was ineffective.
3 Thus, with there being no issues of material fact on the record, there was no legitimate
purpose to holding an evidentiary hearing,
II. TRIAL COUNSEL WAS EFFECTIVE.
In his "Rule 1925 Statement," Defendant complains that trial counsel was
ineffective for three reasons. Specifically, he claims counsel was ineffective for failing to
litigate a Rule 600 motion, failing to call character witnesses at trial, and failing to litigate
a motion to suppress the identifications made by Tyreese Ramsey. Defendant is complaints
are without merit.
"It is well-established that counsel is presumed effective, and the defendant bears
the burden of proving ineffectiveness." Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa.
20 l 1 ). In order to be eligible for PCRA relief based on an ineffectiveness claim, Defendant
must prove by a preponderance of the evidence "that: (1) the underlying substantive claim
has arguable merit; (2) counsel whose effectiveness is being challenged did not have a
reasonable basis for his or her actions or failure to act; and (3) the defendant suffered
prejudice as a result of counsel's deficient performance." Id., at 438, 439. (Internal
citations ornitted.) 0A claim of ineffectiveness will be denied if the defendant's evidence
fails to meet any one of these prongs." Id., at 439.
Regarding the prong of reasonableness, B[a] chosen strategy will not be found to
have lacked a reasonable basis unless it is proven that an alternative not chosen offered a
potential for success substantially greater than the course actually pursued:'
Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (Internal citations omitted).
"To establish prejudice, a petitioner must demonstrate that there is a reasonable probability
that, but for trial counsel's errors, the result of the proceeding would have been different."
4 Commonwealth v. Simpson> 66 A.Jd 253, 277 (Pa. 2013) (Internal citations omitted). In
accord: Strickland v. Washington, 104 S. Ct. 2052 ( 1984). "Strategy is not measured
through hindsight against alternatives not pursued, so long as trial counsel had a reasonable
basis for the decision made." Commonwealth v. Williams, 899 A.2d 1060, I 064 (Pa.
2006). "Counsel will not be found ineffective for failing to raise a meritless claim."
Commonwealth v. Roney, 79 A.Jd 595, 604 (Pa. 2013).
a. TRIAL COUNSEL WAS NOT INEFFECTJVE FOR FAILING TO RAISE A MERITLESS RULE 600 CLAIM. In his statement of errors, Defendant first argues that trial counsel was ineffective
for failing to litigate a Rule 600 motion. Defendant's complaint is without merit.
Pa. R. Crim. P. 600 ("Rule 600") "serves two equally important functions: ( l) the
protection of the accused's speedy trial rights, and (2) the protection of society. In
determining whether an accused's right to a speedy trial has been violated, consideration
must be given to society's right to effective prosecution of criminal cases, both to restrain
those guilty of crime and to deter those contemplating it." Commonwealth v, Jefferson,
741 A.2d 222, 225 (Pa. Super. Ct. 1999). Rule 600 was "not designed to insulate the
criminally accused from good faith prosecution through no fault of the Common- wealth."
Id.
Rule 600 states, in relevant part: "Trial in a court case in which a written complaint
is filed against the defendant shall commence within 365 days from the date on which the
complaint is filed ... [P]eriods of delay at any stage of the proceedings caused by the
Commonwealth when the Commonwealth has failed to exercise due diligence shall be
included in the computation of the time within which trial must commence. Any other
periods of delay shall be excluded from the computatlon." Pa. R. Crim. P. 600. "If the
5 Commonwealth attempts to bring a defendant to trial beyond the 365 day-period prescribed
by Rule 600, and the defendant flies a Rule 600 motion to dismiss, the court must assess
whether there is excludable time and/or excusable delay." Commonwealth v. Hunt, 858
A.2d 1234, 1241 (Pa. Super. Ct. 2004).
mExcludable time' is defined in Rule 600(C) as the ... period of delay at any stage of the proceedings as results from: (a) the unavailability of the defendant or the defendant's attorney; (b) any continuance granted at the request of the defendant or the defendant's attorney. 'Excusable delay' is not expressly defined in Rule 600, but the legal construct takes into account delays which occur as a result of circumstances beyond the Commonwealth's control and despite its due diligence."
Id. (Internal citations ornitted.) Excludable time is added as an extension to the original
365-day date in order to calculate the "adjusted run date." Commonwealth v. Preston, 904
A.2d I, 11 (Pa. Super. Ct. 2006). Likewise, "[a] period of delay that is excusable pursuant . to Rule 600(0) results in an extension to the adjusted nm date." Commonwealth v. Ramos,
936 A.2d 1097, 1103 (P�. Super. Ct. 2007).
"Even where a violation of Rule [600] has occurred, the motion to dismiss the
charges should be denied if the Commonwealth exercised due diligence and ... the
circumstances occasioning the postponement were beyond the control of the
Commonwealth." Id. In accord; Preston, at l l. "It is well-settled that the Commonwealth
cannot control the schedule of the trial courts and that therefore judicial delay can support
the grant of an extension of the Rule 600 rundate." Commonwealth v. Trippett, 932 A.2d
188, 198 (Pa. Super. Ct. 2007) (Internal citations omitted.) "Accordingly, where a trial-
ready prosecutor must wait several months due to a court calendar, the time should be
treated as 'delay' for which the Commonwealth is not accountable." Commonwealth v. -
Mills, 162 A.3d 323, 325 (Pa. 2017). If such is the case, the trial court must establish "it
6 has devoted a reasonable amount of its resources to the criminal docket and that it
scheduled the criminal trial at the earliest possible date consistent with the court's
business." Commonwealth v. Brown, 875 A.2d 1128, 1135 (Pa. Super. Ct. 2005), quoting
Commonwealth v. Williams, 726 A.2d 389, 392 (Pa. Super. 1999).
After careful review of the record, the Court agrees with the Commonwealth's
calculation of excludable and excusable delays in the case at hand, and finds no Rule 600
violation. The noteworthy dates, as reflected in the record, are as follows:
Defendant was arrested on December 30, 2011, resulting in a mechanical run date
of December 30, 20 I 2. A scheduling conference was held on March 22, 2012, and the case
was listed for jury trial on the "earliest possible date given" consistent with the Court's
schedule, which was June 14, 2012. This resulted in 84 excusable days. On June 14, 2012,
the case was continued to the "earliest possible date" consistent with the Court's schedule,
which was October 18, 2012. This resulted in 126 excusable days. On October 18, 2012,
both the Commonwealth and Defendant filed a joint request for a continuance to October
23, 2012. This resulted in 5 excludable days. On October 23, 2012, Defendant requested
a continuance, and the case was listed for November 14, 2012. This resulted in 22
excludable days. On November 14, 2012, the docket reflects that the case was continued
with "Time Ruled Excludable." This resulted in 86 excludable days." On February 28,
2013, a scheduling conference .was held, and the case was listed for jury trial on February
24, 2014. The docket reflects that this was the "earliest possible date given." This resulted
in 361 excusable days between February 28, 20 I J, and when jury selection began on
February 24, 2014.
7 As indicated above, the docket reflects 684 excludable/excusable days from the
time Defendant was charged to the time his trial commenced. This results' in an adjusted
run date of no earlier than August 6, 2014. As Defendant's trial began on February 24,
2014, no Rule 600 violation exists. Thus, trial counsel cannot be found ineffective for
failing to raise a meritless claim. Roney, at 604.
b. DEFENDANT HAS FAILED TO DEMONSTRATE THAT TRIAL COUNSEL WAS INEFFECTIVE FOR NOT CALLING CHARACTER WITNESSES. Defendant next complains that trial counsel was ineffective for failing to call
character witnesses at trial. As Defendant has not only foiled to meet the requirements of
the Pennsylvania Rules of Criminal Procedure, but has also failed to show that trial
counsel's decision lacked any strategic basis or prejudiced him, the claim is without merit.
Pa. R. Crim. P. 902 states, in relevant part that, in the event that a petition for post-
conviction relief involves a request for an evidentiary hearing, "[tjhe request for an
evidentiary hearing shall include a signed certification as to each intended witness, stating
the witness's name, address, and date of birth, and the substance oft he witness's testimony.
Any documents material to the witness's testimony shall also be included in the petition."
Pa. R. Crim. P. 902(A)( 15). See also, Pa. C. S. A. § 9545 (d)( I). "Failure to substantially
comply with the requirements of this paragraph shall render the proposed witness's
testimony inadmissible." Commonwealth v, Brown, 767 A.2d. 576, 582 (Pa. Super. Ct.
200 l), While an affidavit is notrequired, "[ejither the witness, his attorney, the defendant's
attorney, or the petitioner himself> the defendant himself can sign a certification saying to
his best knowledge that this was an accwa�e statement of what the witness would testify
to." Id. at 583. In accord; Commonwealth v. Pander, 100 A.3d 626 (Pa. Super. Ct. 2014).
s Here, in his "Attorney Certification" (Defendant's Petition For Relief, 4/5/16, pg.
8), Defendant merely lists the names of three witnesses, claiming that they would allegedly
be available to testify at an evidentiary hearing. He fails to indicate their addresses, dates
of birth, 01· whether he even spoke to them regarding this matter. He also fails to describe
the substance of their testimony, other than that they «knew/know" Defendant and that he
allegedly has a reputation for peacefulness. Therefore, Defendant's claim for an
evidentiary hearing fails at the outset, as his petition does not satisfy the requirements of
Pa, R. Crim. P. 902(A) (15) and Pa. C. S. A. § 9545 (d)(t).
Alternatively, even if Defendant had satisfied the requirements of Pa. R. Crim, P,
902(A)(l 5), his claim fails on its merits. "The failure to call character witnesses does not
constitute per se ineffectiveness." Commonwealth v. Treiber, 121 A.3d 435, 463 (Pa.
2015). In order to establish that counsel was ineffective for failing to call a witness, a
defendant must prove that "( 1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of, the existence of the witness;
(4) the witness was willing to testify for the defense; and (5) the absence of the testimony
of the witness was so prejudicial as to have denied the defendant a fair trial." Id., at 464.
A defendant will only be able to establish prejudice if he can demonstrate that he was
denied a fair trial due to the absence of the testimony of the proposed witness.
Commonwealth v. Kita/ii, 806 A.2d 415, 422 (Pa. Super. Ct 2002),
Additionally, trial counsel will not be found ineffective if it is determined that they
had a "reasonable, strategic basis in not calling character witnesses." Treiber, at 464
(finding that counsel was not ineffective for failing to present good character evidence
because he did not want to risk the introduction of bad character evidence.)
9 HWe cannot emphasize strongly enough, however, that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is nol whether other alternatives were more reasonable; employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis."
Commonwealth v. Blount, 647 A.2d I 99, 207 (Pa. 1994). In Blount, the Pennsylvania
Supreme Court found that trial counsel had a reasonable basis for not presenting character
witnesses because, "[ajside from the obvious bias of these witnesses arising from their
close association with Appellant. .. it is likely that these witnesses would have provided
evidence of Appellant's bad reputation arising from his activities including those as a drug
dealer." Id.
Here, Defendant has failed to show that trial counsel's decision to put on character
evidence lacked any reasonable basis. At the time at which he committed the offense in
the instant case, Defendant was out on bail for a Possession With Intent to Deliver charge
in Delaware County, which he later pied guilty to on February 17, 2012. (N.T.15/28/2014,
pg. 20.) (CP-23-000539l-2011.) Trial counsel was aware of this fact. (N.T.) 5/28/2014>
pg. 26.) Given his knowledge that Defendant was not only awaiting trial for a drug charge,
but that he was out on bail for that charge when he committed the offense in the case at
hand, trial counsel acted reasonably by not calling character witnesses. Defendant's prior
bad acts would have been grounds for impeachment on any introduction of Defendant's
alleged good character.
Furthermore, Defendant fails to show a reasonable probability that the presentation
or°clrnracter evidence would have altered the outcome of his trial. Extensive evidence of
guilt was presented against him, including eye witness Tyreesc Ramsey's ability to identify
10 Defendant as the shooter both in court and in a photo array, his testimony that he had not
only seen Defendant prior to the day of the shooting, but that he knew him by his nickname,
"D Man," and the consistent descriptions of Defendant from Mr. Ramsey and victim
Shiehean Carter. (N.T., 2/25/2014, pgs. 67, 73, 80-81.) Therefore, character evidence
would not I ikely have altered the outcome of trial.
Thus, as Defendant has failed to demonstrate that he was prejudiced by trial
counsel's decision to not call character witnesses at trial, or that the decision lacked any
reasonable strategic basis, Defendant's claim fails.
c. TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO LITIGATE A MERITLESS MOTION TO SUPPRESS. Finally, Defendant complains that trial counsel was ineffective for failing to litigate
a motion to suppress Mr. Ramsey's identification of Defendant during a photo array, as
well as his in-court identification. This claim is without merit.
POLICE MISCONDUCT DID NOT RESULT IN AN UNDULY SUGGESTIVE PHOTO ARRAY. The purpose of motions to suppress identification evidence is to prevent police
misconduct. Commonwealth v. Sanders, 42 A.3d 325, 330 (Pa. Super. Ct. 2012). Citing
Commonwealth v. O'Bryant, 467 A.2d 141 16 (Pa. Super. Ct. 1983). "Thus, where a
defendant does not show that improper police conduct resulted in a suggestive
identification, suppression is not warranted." Sanders, at 330. In order for a pre-trial
identification to be suppressed, there must be facts to "demonstrate that the identification
procedure was so imperrnissibly suggestive as to give rise to a very substantial likelihood
of irreparable misidentification." O'Bryant, at l 7. In accord; Commonwealth v. Lark, 91
A.Jd 165, 171-72 (Pa. Super. Ct. 2014).
ll Our Supreme Court has held that photographic identifications are not unduly
suggestive unless "the procedure creates a substantial likelihood of misidentification."
Commonweatth v. Fisher. 769 A.2d 1116, 1126 (Pa. 2001). In Commonwealth v.
Fulmore, 25 A.3d 340, 347 (Pa. Super. Ct. 2011), the court found that a detective's use of
the phase "Which one comes to mind?" during a photo array "may have implied that the
assailant was included within the array:' but, as there was no evidence that the detective
directed the witness's attention to a specific picture, the phrase was of "no special
significance." Id. "Moreover, providing such information to the witness before he views
the lineup does not render the identification procedure unduly suggestive." Id. ot 347-348.
Here, Defendant's claim fails because there is no evidence of improper police
conduct, or of an impermissibly suggestive photo array: Philadelphia Police Detective
Craig Fife testified that a few days following the shooting, he administered a photo array
to Mr. Ramsey containing eight photos. Defendant's photo was "in the fourth posilion on
the top." (N .T., 2/25/20 I 4, pgs. 17 8-179.) Mr. Ramsey identified Defendant, and told
Detective Fife that he was "100 percent sure" that this was the person who shot his brother.
(N.T., 2/25/2014, pgs. 179, 182.) With the exception of Detective Fife's testimony, the
record is completely silent with regard to police conduct before or while Mr. Ramsey was
making his identification.
Defendant bases his complaint on the language in a question posed by the
Commonwealth to Mr. Ramsey, asking "Do you recall, when the police showed you that
photo array, they asked you if you could identify the person in that array, if you could, if
anyone, that committed the shooting a few days prior?" (N.T. 2/25/2014, . pg. -··· 80.) ...
However, nowhere in the record does it indicate that Detective Fife made such a statement.
12 Alternatively, even if he had made that statement to Mr. Ramsey, our Supreme Court has
made clear that such language is not impermlssibly suggestive absent evidence that the
detective directed the witness's attention to a specific photo. Id.
Thus, there being no evidence on the record that police directed Mr. Ramsey's
attention to Defendant's photo in any way, the photo array was not unduly suggestive and
Defendant's claim fails.
THE IN-COURT IDENTIFICATION WAS RELIABLE. Defendant's argument that the in-court identification of him should also have been
suppressed fails as well. "[Ijn-court identifications, despite impermissibly suggestive pre-
trial procedures, are admissible if there exists an independent basis for the identifications."
Commonwealth v. Abdul-Salaam, 678 A.2d 342, 349 (Pa. 1996). In determining whether
an independent basis for the identification exists, courts are to look at "(I) the opportunity
of the witness to view the criminal at the time of the crime; (2) the witness' degree of
attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of
certainty demonstrated by the witness at the confrontation; and (5) the length of time
between the crime and the confrontation." Id.
Here, Mr. Ramsey unequivocally identified Defendant as the shooter from the
witness stand. (N.T., 2/25/2014, pgs. 67-68.) He testified credibly that he had seen
Defendant multiple times prior to the shooting in the areas of 41 �• and 4211d of Holly and
Ogden Streets. He even knew the Defendant by his nickname, "D Man," and was able to
recall what he was wearing on the day of the incident. (N.T., 2/25/2014, pgs. 73, 82-83.)
Additionally, Mr. Ramsey testified that he had been looking up the street in the direction
of the shooter for a full minute prior to the shooting> and that he could see "all the way
down the street." (N.T., 2/25/2014, pgs. 135-137.) Therefore, based on Mr. Ramsey's
13 ability to unequivocally identify Defendant both in-court and in a photo army, coupled with
his prior acquaintance with Defendant, the detail of his description, and his ability to view
Defendant on the day of the shooting, the identification evidence in the case at hand would
not have been suppressed. Thus, trial counsel is not ineffective for failing to litigate a
rneritless motion to suppress. Commonwealth v. Wayne, 720 A.2d 456, 469 (Pa. 1998).
CONCLUSION
In conclusion, the Court finds that all averments in Defendant's PCRA Petition are
without merit and were properly dismissed.
May 9, 2018