Com. v. Cash, R.

J-S42007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ROBERT L. CASH,

Appellant No. 807 WDA 2015

Appeal from the PCRA Order April 28, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000844-2005

BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 12, 2016

Appellant, Robert L. Cash, appeals from the order denying his first

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

On March 21, 2005, Appellant was charged with two counts each of

rape and involuntary deviate sexual intercourse; one count each of robbery,

burglary, criminal conspiracy, firearms not to be carried without a license;

and five counts each of terroristic threats, unlawful restraint, recklessly

endangering another person, and simple assault in connection with a home

invasion on November 16, 2004, in McKeesport, Pennsylvania. A jury

____________________________________________

*
Former Justice specially assigned to the Superior Court.
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acquitted Appellant of the two counts of rape and the single firearms

violation and convicted him of all other charges on February 23, 2007.

We previously summarized the factual and procedural history as

follows:

On November 16, 2004, [Appellant] called his
cousin, Joshua Cash [Joshua], and asked Joshua to
participate in the robbery of the home of a purported
drug dealer located in McKeesport, Pennsylvania.
[Appellant] told Joshua, who agreed to aid
[Appellant], that there were drugs in the residence.
Later that day, [Appellant] and Joshua met with
William Chaffin, and at 1:00 a.m. on November 17,
2004, the three men climbed onto the roof of the
house and broke into it through a second-story
window. [Appellant] and Chaffin were in possession
of handguns while Joshua had a sawed-off shotgun.
At that time, six people were present in the house:
1) T.M., the woman who owned the home; 2) T.M.’s
daughter, J.M.; 3) J.M.’s six-year-old daughter, who
will be referred to as Jane Doe; 4) J.M.’s three-year-
old son, who will be referred to as John Doe; 5)
T.W., who was the girlfriend of T.M.’s son, whose
name was Robert Warren; and 6) T.W.’s five-month-
old infant daughter with Robert Warren.

After breaking in, [Appellant], Chaffin, and
Joshua went downstairs to the living room, where
T.M., J.M., T.W., John Doe, and T.W.’s infant
daughter were located. Jane Doe was sleeping in a
bedroom on the second floor and remained there
during the ensuing criminal episode. [Appellant] and
his accomplices pointed guns at the occupants of the
living room, demanded drugs, and threatened to kill
everyone present if the location of the drugs was not
identified. T.M. informed the intruders that there
were no drugs in the house. Chaffin became angry
and pointed a gun at John Doe’s head. Joshua
intervened and told Chaffin to put down the weapon.
At that point, J.M. and T.W. were ordered to remove
their clothing, and T.M. took John Doe and the infant

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into the dining room. At gunpoint, J.M. and T.W.
were forced to perform oral sex on [Appellant], who
was wearing a gray hoodie. Both women were able
to view [Appellant’s] face. After performing oral sex
on [Appellant], T.W. was forced to perform oral sex
on Chaffin, who also raped her. Then, [Appellant]
forced J.M. to engage in sexual intercourse with him
while he held a gun to her side. J.M. was able to
clearly see [Appellant’s] face during this assault.

While Chaffin and [Appellant] were sexually
assaulting T.W. and J.M., Joshua started to search
the house for drugs and cash. While Joshua was not
able to locate drugs, he confiscated a number of
J.M.’s belongings, including money and jewelry, and
a pit-bull puppy. At that point, Robert Warren
arrived at the house, and [Appellant], Joshua, and
Chaffin fled. Robert Warren wanted to pursue the
three criminals, but was stopped by the women since
the three men were armed. Then, J.M. and T.W.
went to the hospital where they were tested. Semen
from Chaffin was found on T.W. Since [Appellant]
had used a condom while assaulting J.M., no seminal
fluid was discovered on that victim.

Based upon this evidence, a jury acquitted
[Appellant] of two counts of rape and one count of
carrying an unlicensed firearm, but convicted him of
two counts of involuntary deviate sexual intercourse,
one count each of robbery, burglary, and conspiracy,
and five counts each of terroristic threats, unlawful
restraint, reckless endangerment (“REAP”), and
simple assault. The trial court ordered the
preparation of a presentence report. The court
sentenced [Appellant] on May 16, 2007, and
corrected it the next day by a written order. The
court imposed an aggregate sentence of thirty to
sixty years’ imprisonment followed by seventy years’
probation.

Commonwealth v. Cash, [4 A.3d 674], 613 WDA 2008,
unpublished memorandum at 1–4 (Pa. Super. filed June 3,
2010).

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[Appellant] appealed his original judgment of sentence at
the foregoing docket number and, following direction to the trial
court to file a supplemental opinion to address the issue of the
court’s alleged bias in sentencing, we vacated the judgment of
sentence and remanded the matter with direction that re-
sentencing be held before another trial judge. We also
concluded that multiple lesser-included offenses should have
merged with other offenses at sentencing and found the
evidence insufficient to sustain one count each of Terroristic
Threats and Simple Assault. Although, on re-sentencing, the
substituted trial judge convened a re-sentencing hearing, he
received only the argument of counsel and did not take
testimony, relying instead on the existing record. In advance of
the court’s pronouncement of sentence, defense counsel
requested imposition of concurrent prison terms but
acknowledged that the circumstances could also reasonably
support consecutive terms. . . .

* * *

After receiving argument from the Commonwealth as well
as an apology from [Appellant], the court imposed standard
range sentences to run consecutively on two counts of IDSI (66
to 132 months each), and one count each of Robbery (66 to 132
months), Burglary (60 to 120 months), and Criminal Conspiracy
(60 to 120 months). On the remaining counts, the court
imposed either consecutive terms of probation or no further
penalty yielding the aggregate sentence at issue of 23½ to 53
years in prison followed by 20 years’ probation. Following
imposition of sentence, [Appellant’s] counsel filed a “Motion for
Modification of Sentence” challenging the sentence as excessive.
The court denied [Appellant’s] motion, following which
[Appellant] filed [an] appeal.

Commonwealth v. Cash, 38 A.3d 933, 423 WDA 2011, (Pa. Super. filed

November 29, 2011) (unpublished memorandum at 1–5).

In his direct appeal following resentencing, this Court affirmed the

judgment of sentence, stating, “[T]he sentencing scheme appears to reflect

the need of the public to be protected from [Appellant’s] demonstrated

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proclivities, while allowing him adequate time for rehabilitation should he

avail himself of opportunities while confined.” Commonwealth v. Cash,

423 WDA 2011 (unpublished memorandum at 11). Our Supreme Court

denied Appellant’s petition for allowance of appeal. Commonwealth v.

Cash, 51 A.3d 837, 682 WAL 2011 (Pa. filed September 4, 2012).

Appellant filed a pro se PCRA petition on September 9, 2013, and

appointed counsel filed an amended petition on July 16, 2014. Counsel filed

a supplemental amended PCRA petition on March 5, 2015, the same day the

PCRA court held an evidentiary hearing. The PCRA court dismissed

Appellant’s PCRA petition on April 28, 2015. Appellant filed a timely notice

of appeal, and both Appellant and the PCRA court complied with Pa.R.A.P.

1925.

Appellant raises the following two issues on appeal:

First Issue

Appellate counsel’s decision not to challenge the trial court’s
denial of [Appellant’s] suppression motion regarding J.M.’s and
T.W.’s photographic identifications of [Appellant] was objectively
unreasonable. The suppression issue was of arguable merit
because J.M’s and T.W.’s identifications were procured via highly
suggestive identification procedures and there was a substantial
likelihood they misidentified [Appellant]. Appellate counsel’s
deficient performance prejudiced [Appellant] on appeal because
it deprived this Court from reviewing it and granting relief. U.S.
Const. amdts. 5, 6, 8, 14; Pa. Const. Art. I, §§ 1, 9.1 Ex.

Second Issue

Trial counsel failed to identify facts relevant to the
suggestiveness inquiry and to develop and present substantial,
valid, and persuasive non-scientific and scientific evidence into

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the record explaining how and why these facts demonstrated
that the identification process and procedures were unduly
suggestive. Trial counsel also failed to identify facts relevant to
the accuracy inquiry and develop and present substantial, valid,
and persuasive non-scientific and scientific evidence into the
record explaining how and why these facts affected J.M.’s and
T.W.’s ability to accurately capture, store, and recall the grey
hooded perpetrator’s facial features. Trial counsel’s failures are
objectively unreasonable and not based on strategic or tactical
reasons and they prejudiced Mr. Cash by allowing the jury to
hear unreliable and unduly suggestive identification evidence.
U.S. Const. amdts. 5, 6, 8, 14; Pa. Const. Art. I, §§ 1, 9.

Appellant’s Brief at 1–2.

Our review of a PCRA court’s decision is limited to
examining whether the PCRA court’s findings of fact are
supported by the record, and whether its conclusions of law are
free from legal error.” Commonwealth v. Hanible, 612 Pa.
183, 204, 30 A.3d 426, 438 (2011) (citing Commonwealth v.
Colavita, 606 Pa. 1, 21, 993 A.2d 874, 886 (2010)). We view
the findings of the PCRA court and the evidence of record in a
light most favorable to the prevailing party. Id. With respect to
the PCRA court’s decision to deny a request for an evidentiary
hearing, or to hold a limited evidentiary hearing, such a decision
is within the discretion of the PCRA court and will not be
overturned absent an abuse of discretion. See Commonwealth
v. Reid, 627 Pa. 151, 99 A.3d 470, 485 (2014). “The PCRA
court’s credibility determinations, when supported by the record,
are binding on this Court; however, we apply a de novo standard
of review to the PCRA court’s legal conclusions.”
Commonwealth v. Roney, 622 Pa. 1, 16, 79 A.3d 595, 603
(2013).

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

Initially, we are compelled to comment on Appellant’s non-compliance

with Pa.R.A.P. 2135, which provides, in pertinent part:

(a) Unless otherwise ordered by an appellate court:

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(1) A principal brief shall not exceed 14,000 words and a reply
brief shall not exceed 7,000 words, except as stated in
subparagraphs (a)(2)-(4). A party shall file a certificate of
compliance with the word count limit if the principal brief is
longer than 30 pages or the reply brief is longer than 15 pages
when prepared on a word processor or typewriter.

* * *

(b) Supplementary matter. Supplementary matters, such as,
the cover of the brief and pages containing the table of contents,
tables of citations, proof of service and any addendum containing
opinions, signature blocks or any other similar supplementary
matter provided for by these rules shall not count against the
word count limitations set forth in paragraph (a) of this rule.

* * *

(d) Certification of compliance. Any brief in excess of the
stated page limits shall include a certification that the
brief complies with the word count limits. The certificate
may be based on the word count of the word processing system
used to prepare the brief.

Pa.R.A.P. 2135 (emphasis added). Excluding supplementary pages,

Appellant’s brief is sixty-seven pages in length, more than double the

maximum page length prescribed by Rule 2135(a)(1). Moreover, the brief

does not contain the certification required by Rule 2135(d). Further, counsel

has not filed a petition requesting permission to exceed the brief’s maximum

word count and page limit. See Commonwealth v. Roane, ___ A.3d ___,

___ n.3, 2016 PA Super 124 at *19 n.3 (Pa. Super. filed June 15, 2016)

(where the appellant’s principal brief was 122 pages in length and counsel

failed to certify it did not exceed 14,000 words, Superior Court would

consider issues on their merits because counsel filed a petition requesting

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permission to exceed the brief’s maximum word count and page limit). This

Court views deviations from procedural rules seriously, as evidenced by our

ability to quash or dismiss an appeal for procedural noncompliance.

Pa.R.A.P. 2101. Thus, we admonish counsel for his failure to follow the rules

set forth by our Supreme Court. In light of the fact that the Commonwealth

has not objected and in the interest of judicial economy, we address

Appellant’s arguments to the extent we are able to discern his claims.

In essence, Appellant asserts that appellate counsel was ineffective for

failing to challenge the trial court’s denial of trial counsel’s motion to

suppress J.M.’s and T.W.’s out-of-court photographic identifications. The

following standards are applicable to claims of ineffective assistance of

counsel:

To prevail on a claim of ineffective assistance of counsel, a
PCRA petitioner must satisfy the performance and prejudice test
set forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). See Sepulveda, 55 A.3d at 1117. This Court has
recast the two-part Strickland standard into a three-part test
by dividing the performance element into two distinct
components. Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d
35, 45 (2012); Commonwealth v. Pierce, 515 Pa. 153, 527
A.2d 973, 975 (1987). Accordingly, to prove that counsel was
ineffective, the petitioner must demonstrate: (1) that the
underlying claim has arguable merit; (2) that no reasonable
basis existed for counsel's actions or failure to act; and (3) that
the petitioner suffered prejudice as a result of counsel’s error.
[Commonwealth v.] Sepulveda, 55 A.3d [1108,] 1117 [Pa.
2012] (citing Pierce, 527 A.2d at 975). To prove that counsel’s
chosen strategy lacked a reasonable basis, a petitioner must
prove that “an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.”
Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 678

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(2009) (quoting Commonwealth v. Williams, 587 Pa. 304,
899 A.2d 1060, 1064 (2006)). Regarding the prejudice prong, a
petitioner must demonstrate that there is a reasonable
probability that the outcome of the proceedings would have been
different but for counsel’s action or inaction. Commonwealth
v. Dennis, 597 Pa. 159, 950 A.2d 945, 954 (2008). Counsel is
presumed to be effective; accordingly, to succeed on a claim of
ineffectiveness the petitioner must advance sufficient evidence
to overcome this presumption. Sepulveda, 55 A.3d at 1117.

We need not analyze the prongs of an ineffectiveness claim
in any particular order. Rather, we may discuss first any prong
that an appellant cannot satisfy under the prevailing law and the
applicable facts and circumstances of the case. Id. at 1117–18;
Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701
(1998). Finally, counsel cannot be deemed ineffective for failing
to raise a meritless claim. Commonwealth v. Jones, 590 Pa.
202, 912 A.2d 268, 278 (2006).

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016).

We reject Appellant’s claims that the circumstances of the victims’

identifications of Appellant were highly suggestive, and we conclude that the

PCRA court properly determined as much. We rely on the PCRA court’s

explanation, as follows:

First, [Appellant] claims that appellate counsel . . .
rendered ineffective assistance of counsel because he did not
appeal [the trial court’s] denial of the motion to suppress J.M.
and T.W.’s out-of–court photographic identifications. In the
alternative, [Appellant argues] trial counsel was ineffective for
failing to develop an adequate record and object to the factors
that made the identification procedure unduly suggestive.
According to [Appellant], the events surrounding J.M and T.W.’s
photo identification were “highly suggestive.”

The facts of the case at bar do not indicate the presence of
any “highly suggestive” behavior or conduct surrounding J.M.[’s]
or T.W.’s identification of [Appellant]. J.M. testified that she
recognized [Appellant] when he took her into the dining room
where he forced her to perform oral sex on him and then raped

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her, but at that time, she did not know his name. (TT, p. 69).
[Appellant] argues that the victims identified him based on the
“word on the street.” However, J.M. stated when Detective
Lopretto showed her the photo array, he did not tell her the
name of the man she identified, and she only “put the name and
the face together” once she viewed the photo array. (TT, pp.
69, 83, 130). T.W. also testified that she had never seen
[Appellant] prior to the attack, and only heard the rumors on the
street after identifying [Appellant] in the photo array. (TT, pp.
158, 177). Further, despite what [Appellant] contends, the
record reflects that Detective Lorpetto only told the victims the
names he was hearing in the McKeesport community after he
spoke with the victims, and did not discuss the “word on the
street” with them before showing them the photo arrays. (TT,
pp. 340, 342).

The Pennsylvania Supreme Court has stated that the
Standard of Review in addressing a challenge to a trial court’s
denial of a suppression motion is limited to determining whether
the factual findings are supported by the record and whether the
legal conclusions drawn from the facts are correct.
Commonwealth v. DeJesus, 860 A.2d 102, 112 (Pa. 2004).

These facts do not rise to the level of undue[]
suggestiveness to make this claim of arguable merit. Even if the
facts did lend themselves to that conclusion, the central inquiry
in reviewing the propriety of identification evidence is whether,
under the totality of the circumstances, the identification was
reliable. Commonwealth v. Moye, 836 A.2d 973, 976 (Pa.
Super. 2003). The following factors are to be considered in
determining the propriety of admitting identification evidence:
the opportunity of the witness to view the perpetrator at the
time of the crime, the witness’ degree of attention, the accuracy
of his prior description of the perpetrator, the level of certainty
demonstrated at the confrontation, and the time between the
crime and confrontation. Id.

Suggestiveness in the identification process is merely 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

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likelihood of irreparable mis-identification.” Commonwealth v.
Burton, 770 A.2d 771,782 (Pa. Super. 2001), appeal denied,
868 A.2d 1197 (Pa. Super. 2005), overruled on other grounds by
Commonwealth v. Mouzon, 812 A.2d 617,623 (Pa. 2002).

In the case at hand, J.M. had sufficient time to view the
perpetrator who was not wearing a mask at the time of the
crime and stated that she used a high degree of attention during
the crime. (TT, 56-57, 69). J.M. stated that she “got a ‘good
look’” at [Appellant] when they were sitting “face to face” during
the five-ten minute sexual intercourse. (TT, 68). Both J.M. and
T.W. immediately identified [Appellant], and demonstrated a
high level of certainty at the confrontation. When weighed
against the alleged suggestive conduct, the additional factors for
consideration outweigh any alleged suggestiveness surrounding
J.M.[’s] and T.W.’s identification of [Appellant] from the photo
array. As such, trial counsel was not ineffective for failing to
develop an adequate record or object to the identification
process where it was quite apparent the identification was not so
impermissibly suggestive as to give rise to a substantial
likelihood of misidentification. Both J.M. and T.W. also made in
court identifications of the [Appellant] as the one in the hoodie
that sexually assaulted them.

Likewise, based upon the foregoing facts, [appellate
counsel] had an objectively reasonable basis for not raising the
issue of the suppression motion on appeal. “Arguably
meritorious claims may be omitted in favor of pursing claims
which, in the exercise of appellate counsel’s objectively
reasonable professional judgment, offer a greater prospect of
securing relief.” Commonwealth v. Pitts, 844 A.2d 251, 254
(Pa. Super. 2005). Rather than pursue the instant claim,
appellate counsel raised other matters that had a higher
probability of success for his client on appeal. [Appellate
counsel] was successful on all meritorious claims he made on
appeal.

There is no evidence that [Appellant] was prejudiced
“sufficiently to undermine confidence in the outcome” of his
case. Strickland v. Washington, 466 U.S. 668, 688 (1988).
The victims not only had an opportunity to identify [Appellant]
from a photo array, but also made an in-court identification. As
such, even if there was any merit to the claim that the photo
identifications were “highly suggestive,” which they were not,

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the motion to suppress was properly denied. The law in
Pennsylvania requires a trial court to look at the totality of the
circumstances when determining if an identification is reliable
and whether the factual findings are supported by the record and
whether the legal conclusions drawn from the facts are correct.
Moye, supra, at p. 976 and DeJesus, supra, at p. 112. In the
case at hand, the identifications were overwhelmingly reliable.

Finally, the trial court gave a jury instruction pertaining to
how the jury should view the victims’ identification[s] of
[Appellant]:

Now, [J.M. and T.W.] have identified [Appellant] as
the individual—as one of the individuals—who
committed these particular crimes. A victim or other
witness can make a mistake in identifying an
individual who committed the crime if certain factors
are present. That is whether or not they were in a
position to see that witness, whether or not they had
ample opportunity to observe them, whether or not
the individuals who committed the crime were
wearing masks, whether or not the individual who
was the victim of that crime was under certain
pressures; and threats that would cause them to
have difficulty in identifying the individual who
perpetrated these crimes. If you believe that one or
more of these factors are present, you should view
identification testimony with caution. If you believe
that these factors are not present, you will accept
the victim’s testimony as you will accept the
testimony of any other witness.

(TT, 434).

For all of the reasons stated above, [Appellant’s] claims
are meritless and non-prejudicial. [The trial court] properly
denied the suppression motion. And this [c]ourt properly denied
the PCRA Petition.

PCRA Court Opinion, 11/25/15, at 14–19. We rely on the PCRA court’s

disposition of this issue, adopting it as our own.

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We also reject as meritless Appellant’s reference to several purported

scholarly articles, upon which he claims that the photographic array was

improper because the detective presenting them showed them

simultaneously rather than sequentially. Appellant’s Brief at 61–66.

Appellant suggests that trial counsel’s “narrow focus also prevented him

from researching the scientific literature regarding eyewitness

identifications,” and thereby failed to “develop evidence minimizing or

discrediting the identification evidence.” Id. at 64. As noted by the

Commonwealth, expert testimony concerning flaws in eyewitness

identifications was barred at the time of Appellant’s trial. Commonwealth’s

Brief at 20. Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014), was the

first time our Supreme Court held that the admission of expert testimony

regarding eyewitness identification was no longer per se impermissible. We

will not find appellate counsel ineffective for failing to predict a change in the

law. See Commonwealth v. Gribble, 863 A.2d 455, 464 (Pa. 2004)

(counsel not ineffective for failing to predict changes in the law.). Thus,

Appellant’s second issue lacks arguable merit.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2016

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