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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RAHEIM ALPHONSO WILLIAMS, :
:
Appellant : No. 1960 MDA 2015
Appeal from the PCRA Order November 2, 2015
in the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005490-2011
BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 26, 2016
Raheim Alphonso Williams (Appellant) appeals from the November 2,
2015 order which dismissed his petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Also before us is a petition to
withdraw filed by Appellant’s counsel and a no-merit brief pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We
grant counsel’s petition and affirm.
This Court offered the following history of the case in Appellant’s direct
appeal.
On the night of July 17, 2011, Tyler Knaub and Todd Lippy
accompanied their friend Mikey to his house at 729 Jessop Place,
York City. They opened the back door, walked through the
kitchen and went into the living room, where they joined two
other residents of the house, Jay and Cash. While the five men
*Retired Senior Judge assigned to the Superior Court.
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were in the living room, [Appellant] and an accomplice, both of
whom were armed, entered the house through the back door.
They walked into the living room, and [Appellant] asked if
anyone knew where he could find a girl whom he thought lived in
the house. When no one could provide the information,
[Appellant] and his accomplice, who were both pointing guns at
the victims, ordered them to take off their shoes and put the
contents of their pockets on the coffee table. They then ordered
the men to remove their pants and stand by the front door with
their backs to them.
The morning after the robbery, Knaub and Lippy reported
the incident to police.
On June 5, 2012, at the conclusion of a two-day trial, a
jury convicted [Appellant] of two counts of robbery and two
counts of simple assault. On August 1, 2012, the court imposed
an aggregate sentence of 15½ to 40 years for the robbery
convictions, with no additional sentence for simple assault. The
court also ordered [Appellant] to pay restitution.
Commonwealth v. Williams, 100 A.3d 322 (unpublished memorandum at
1-2). This Court affirmed Appellant’s judgment of sentence, id., and our
Supreme Court denied his petition for allowance of appeal on October 7,
2014. Commonwealth v. Williams, 101 A.3d 786 (Pa. 2014).
On September 4, 2015, Appellant timely filed pro se a PCRA petition.
Counsel was appointed, and a hearing was held. Thereafter, the PCRA court
denied the petition, and Appellant timely filed the instant appeal. Both
Appellant and the PCRA court complied with Pa.R.A.P. 1925.
In this Court, Appellant’s counsel filed a petition to withdraw and a
Turner/Finley brief raising the following issues that Appellant wants this
Court to review:
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I. Whether the [PCRA] court erred in denying Appellant’s
PCRA petition when [trial] counsel was ineffective for
failing to file a pretrial motion to suppress a photo lineup
which was later introduced as evidence at trial?
II. Whether the PCRA court erred in denying Appellant’s PCRA
petition when appellate counsel was ineffective for failing
to appeal the court’s denial of the Batson[1] challenge
made during voir dire?
Turner/Finley Brief at 4 (unnecessary capitalization omitted).
Before we may address the potential merit of Appellant’s claims, we
must determine if counsel has complied with the technical requirements of
Turner and Finley.
… Turner/Finley counsel must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the
nature and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of
the “no-merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
If counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not reach the
merits of the underlying claims but, rather, will merely deny
counsel’s request to withdraw. Upon doing so, the court will
then take appropriate steps, such as directing counsel to file a
proper Turner/Finley request or an advocate’s brief.
However, where counsel submits a petition and no-merit
letter that do satisfy the technical demands of Turner/Finley,
the court—trial court or this Court—must then conduct its own
1
Batson v. Kentucky, 476 U.S. 79 (1986).
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review of the merits of the case. If the court agrees with
counsel that the claims are without merit, the court will permit
counsel to withdraw and deny relief. By contrast, if the claims
appear to have merit, the court will deny counsel’s request and
grant relief, or at least instruct counsel to file an advocate’s
brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)
(citations omitted).
We are satisfied that counsel has complied with the technical
requirements of Turner and Finley. Therefore, we will consider the
substantive issues contained in counsel’s brief.
“Our standard of review of a trial court order granting or denying
relief under the PCRA calls upon us to determine ‘whether the determination
of the PCRA court is supported by the evidence of record and is free of legal
error.’” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013)
(quoting Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super.
2011)).
In his PCRA petition, Appellant raised two claims of ineffective
assistance of counsel. “It is well-established that counsel is presumed
effective, and the defendant bears the burden of proving ineffectiveness.”
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). To overcome this
presumption, Appellant must show each of the following: “(1) the
underlying substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis for his or
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her actions or failure to act; and (3) the petitioner suffered prejudice as a
result of counsel’s deficient performance.” Id. Appellant’s claim will be
denied if he fails to meet any one of these three prongs. Id.
Appellant’s first issue is whether trial counsel was ineffective in failing
to file a motion to suppress, as unduly suggestive, a photo lineup which
ultimately was admitted into evidence at trial. Turner/Finley Brief at 7.
“’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. Fulmore, 25 A.3d 340,
346 (Pa. Super. 2011) (quoting Commonwealth v. Carson, 741 A.2d 686,
697 (Pa. 1999)). “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.” Id. (internal quotation
marks and citation omitted).
“Photographs used in line-ups are not unduly suggestive if the
suspect’s picture does not stand out more than those of the others, and the
people depicted all exhibit similar facial characteristics.” Commonwealth
v. Fisher, 769 A.2d 1116, 1126 (Pa. 2001). “A photographic identification
is unduly suggestive if, under the totality of the circumstances, the
identification procedure creates a substantial likelihood of misidentification.”
Commonwealth v. DeJesus, 860 A.2d 102, 112 (Pa. 2004).
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Appellant complained that he was only one of two men pictured who
wore his hair in cornrows while the others were bald or had shorter
hairstyles. Turner/Finley Brief at 7. Further, Appellant contended that not
all of the men depicted were of the same skin tone as he. Id.
Our review of the photo array confirms counsel’s assertion that the
claim lacks merit. Although not all of the men have identical coloring or hair
styles, all fit within the witnesses’ description of the perpetrators as “two
black males, different heights and different skin complexion, darker and
lighter.” Turner/Finley Brief at 7 (quoting N.T., 10/21/2015, at 9). More
importantly, nothing about the array causes Appellant’s photo to stand out
from the others to suggest that he be identified. See Commonwealth v.
Howard, 659 A.2d 1018, 1023 (Pa. Super. 1995) (affirming the denial of a
suppression motion where the “appellant’s picture did not stand out more
than the other photos and the men depicted therein all exhibited similar
facial and bodily characteristics”).
Because the underlying suppression issue lacks merit, counsel was not
ineffective in failing to pursue it. Commonwealth v. Keaton, 82 A.3d 419,
426 (Pa. 2013) (quoting Commonwealth v. Pursell, 724 A.2d 293, 304
(Pa. 1999)) (“[I]t is axiomatic that [trial] counsel will not be considered
ineffective for failing to pursue meritless claims.”).
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Appellant’s remaining issue is whether direct appeal counsel was
ineffective in failing to appeal the trial court’s denial of Appellant’s Batson
challenge. Turner/Finley Brief at 9.
In Batson, the United States Supreme Court held that the
Equal Protection Clause forbids a prosecutor from challenging
potential jurors solely on account of their race. The framework
for analyzing a Batson claim is three-fold:
[F]irst, the defendant must make a prima facie
showing that the circumstances give rise to an
inference that the prosecutor struck one or more
prospective jurors on account of race; second, if the
prima facie showing is made, the burden shifts to the
prosecutor to articulate a race-neutral explanation
for striking the juror(s) at issue; and third, the trial
court must then make the ultimate determination of
whether the defense has carried its burden of
proving purposeful discrimination.
***
The second prong of the Batson test, involving the
prosecution’s obligation to come forward with a race-
neutral explanation of the challenges once a prima
facie case is proven, does not demand an
explanation that is persuasive, or even plausible.
Rather, the issue at that stage is the facial validity of
the prosecutor’s explanation. Unless a
discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race
neutral.
If a race-neutral explanation is tendered, the
trial court must then proceed to the third prong of
the test, i.e., the ultimate determination of whether
the opponent of the strike has carried his burden of
proving purposeful discrimination. It is at this stage
that the persuasiveness of the facially-neutral
explanation proffered by the Commonwealth is
relevant.
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Commonwealth v. Williams, 980 A.2d 510, 529-30 (Pa. 2009) (quoting
Commonwealth v. Cook, 952 A.2d 594, 602-03 (Pa. 2008)) (citations,
quotation marks, and emphasis omitted).
“[A] trial court’s decision on the ultimate question of discriminatory
intent represents a finding of fact of the sort accorded great deference on
appeal and will not be overturned unless clearly erroneous.”
Commonwealth v. Roney, 79 A.3d 595, 619 (Pa. 2013) (quoting
Williams, 980 A.2d at 531). “Such great deference is appropriate and
warranted because the trial court, having viewed the demeanor and heard
the tone of voice of the attorney exercising the challenge, is uniquely
positioned to make credibility determinations.” Id.
The PCRA court, which also sat as the trial court, offered the following
description of Appellant’s Batson challenge at trial:
Defendant is African-American. During trial, [trial counsel]
raised a Batson challenge when the prosecutor moved to strike
the only African-American juror on the jury panel. The
prosecutor explained three reasons for striking the juror. First,
because the juror was a nursing assistant, and the prosecutor
likened the profession to clergy or teachers, who[m] the
prosecutor categorized as having a greater amount of sympathy
generally. Second, the juror failed to make eye-contact with the
prosecutor, and third because the juror lived in an area [(South
Queen Street)] where her last name [(Johnson)] was associated
by police with criminal activity.
PCRA Court Opinion, 11/2/2015, at 4 (footnote omitted). The trial/PCRA
court determined that Appellant made his prima facie showing and that the
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Commonwealth offered race-neutral reasons for the strike, and gave the
following explanation for its decision to deny the challenge:
I am going to find that I don’t believe that the
Commonwealth intended to use this in a racial manner. I think
the reason stated for striking her [] based on where she lived is
weak, and it raises concern with the [trial c]ourt because that is
a predominantly African-American neighborhood.
[The Commonwealth’s presumption] that because
somebody is named Johnson and must be related to a bunch of
criminal Johnsons, also has a taste about it that is not in itself as
neutral as this [c]ourt would like to hear in the circumstances
that she is the sole African-American on this panel.
However, putting that aside I find that the rational[e]
about striking the nurses, teachers and clergy is a racially
neutral one. The lack of eye contact [-] you have to give a
certain level of deference to counsel for either side to use their
experience and knowledge on how people answer questions in
exercising challenges, so I will deny the motion at this point.
N.T., 6/4-5/2012, at 95.
Thus, the PCRA court gave serious consideration to Appellant’s Batson
challenge but ultimately was convinced, based upon the totality of the
circumstances, that the Commonwealth was not guilty of purposeful
discrimination. Our review of the record reveals no reason why we “should
not extend great deference to the PCRA court’s ruling on the question of the
prosecutor’s discriminatory intent or lack thereof.” Roney, 79 A.3d at 622.
Accordingly, the claim on appeal challenging the court’s ruling on the
Batson challenge would not have merited Appellant relief. Appellant’s
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appellate counsel was not ineffective in failing to pursue this non-meritorious
claim on appeal.
Because we agree with Appellant’s counsel that none of the issues
Appellant raised in his PCRA petition has merit, we grant his petition to
withdraw and affirm the order dismissing Appellant’s PCRA petition.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2016
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