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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RICKY ROUSE
Appellant No. 682 WDA 2015
Appeal from the PCRA Order April 8, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004190-2009
BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J: FILED SEPTEMBER 19, 2016
Ricky Rouse appeals pro se from the April 8, 2015 order denying his
PCRA petition. We affirm.
We previously set forth the relevant facts:
On February 24, 2009, Antoine Cooper (“the victim”) was shot at
approximately 4:30 in the afternoon in Northview Heights, a
neighborhood in the North Side of the city of Pittsburgh. The
victim suffered multiple gunshot wounds with the fatal wound
being a single shot to the head. The Commonwealth’s theory of
the case was that [A]ppellant fired the fatal bullet in retaliation
for an earlier shooting and that [A]ppellant was seen leaving the
crime scene in a vehicle rented by [Appellant’s] co-defendant,
Damone Porter.
At the conclusion of trial, [A]ppellant was found guilty of first
degree murder, carrying a firearm without a license, and
conspiracy. On December 21, 2010, [A]ppellant was sentenced
to life in prison.
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Commonwealth v. Rouse, 60 A.3d 559 (Pa.Super. 2012) at 1-2
(unpublished memorandum, citations and footnotes omitted), appeal denied,
63 A.3d 776 (Pa. 2013). Appellant was identified by a UPS driver, who saw
him fleeing the scene of the crime with a firearm. We affirmed Appellant’s
judgment of sentence and the Supreme Court denied further review. Id.
On January 28, 2014, Appellant filed a timely pro se PCRA petition
raising five claims and requesting the appointment of counsel. The court
appointed Ryan H. James, Esquire. Mr. James subsequently filed a motion
to withdraw and authored a Turner/Finley1 no-merit letter. Before the
court resolved counsel’s motion to withdraw, the court granted co-defendant
Porter a hearing pursuant to his own PCRA petition. The court ordered
Appellant’s PCRA counsel to review Porter’s petition to determine whether
any issues raised by Porter were applicable in Appellant’s matter. In a
second letter, counsel determined those issues did not implicate Appellant’s
case, and the court agreed.
In the meantime, Appellant filed a letter outlining his response to
counsel’s no-merit letter, and raised additional claims. The court issued an
order on March 11, 2015, disposing of some of Appellant’s claims and
directing counsel to evaluate three additional issues contained in the
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1
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
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response. Counsel addressed those issues, and on April 8, 2015, the court
issued an order adopting counsel’s analysis, dismissing Appellant’s PCRA
petition without a hearing, and granting counsel’s motion to withdraw.
Appellant filed a timely pro se notice of appeal and complied with the
court’s order to file a Rule 1925(b) concise statement of errors complained
of on appeal. The court filed a Rule 1925(a) opinion, and this matter is now
ready for our consideration.
Appellant raised five issues for our review:
1. Did the trial court erred [sic] when it denied Appellant’s PCRA
petition where it was clear that trial counsel was ineffective
for failing to investigate the crime scene to properly
determine whether the Commonwealth’s key witness could
have testified truthfully that he saw Appellant on an angle at
a considerable distance away, thus, violating his Sixth
Amendment Right to effective assistance pursuant to
Wiggins v. Smith, 539 U.S. 510 (2003)?
2. Did the prosecutor abuse its authority, thus committing a
miscarriage of justice, when it allowed testimony from the
Commonwealth witness (Barbara Geraci) to testify falsely to a
fact that the name of the hotel room (room in which alleged
getaway vehicle keys were recovered) was in Appellant’s
name. Where evidence to the contrary was instituted, thus
violating Appellant’s Sixth and Fourteenth Amendment right
under the [guise] of prosecutor misconduct?
3. Was counsel (direct appeal) ineffective for failing to raise a
proper “weight of the evidence” thus, causing this claim to be
waived at the stage guaranteed pursuant to Pa.Const.Article
I, Section 9?
4. Pursuant to Commonwealth v. Walker, 92 A.3d 766 (Pa.
2014) does Appellant have a guaranteed right to present
evidence of an expert witness by compulsory process of the
Sixth Amendment and Pa.Const.Article I, Section 9 to the
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issue whether there was an misidentification of Appellant via
cross-racial and lapse in time between the crime and the trial,
thus, violating Appellant’s right to due process and equal
protection of the Fourteenth Amendment?
5. Pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012) was
PCRA counsel ineffective for failing to raise properly preserved
claim of “newly discovered evidence” of an affidavit of Eugene
Mackey pursuant to Commonwealth v. Abu-Jamal, 833
A.2d 719 (Pa. 2003)?
Appellant’s brief at 4 (unnecessary capitalization omitted).
We review PCRA appeals “in the light most favorable to the prevailing
party at the PCRA level.” Commonwealth v. Steckley, 128 A.3d 826, 831
(Pa.Super. 2015) (citation omitted). Our “review is limited to the finding of
the PCRA court and the evidence of record [and] we do not disturb a PCRA
court’s ruling if it is supported by the evidence of record and is free of legal
error.” Id. As such, “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.” Id. Nevertheless, “we afford no such deference to its legal
conclusions.” Id. Where the petitioner raises questions of law “our
standard of review is de novo and our scope of review is plenary.” Id.
Appellant first contends that the trial court erred in denying his PCRA
petition since the evidence of record supports a finding that trial counsel was
ineffective for failing to investigate the crime scene in preparation for trial.
Appellant has raised this issue for the first time on appeal. It is axiomatic
that “issues not raised in the lower court are waived and cannot be raised for
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the first time on appeal.” Pa.R.A.P. 302(a); Commonwealth v. Fletcher,
986 A.2d 759, 778 (Pa. 2009) (finding waiver where appellant did not
present claim in a PCRA petition). Therefore, this claim is waived.
We consider Appellant’s second, third, and fifth claims together, as
they all raise claims of counsel ineffectiveness. Pennsylvania courts utilize a
three-factor test in reviewing the effectiveness of counsel. In order to
obtain relief, the petitioner must prove:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3)
petitioner suffered prejudice as a result of counsel’s error such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error.
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa.Super. 2015) (citation
omitted). Failure to satisfy any prong of this test requires rejection of the
claim. Id. Furthermore, “counsel is presumed to be effective, and a PCRA
petitioner bears the burden of pleading and proving each of the three factors
by a preponderance of the evidence.” Id.
Appellant first argues that the Commonwealth committed prosecutorial
misconduct by suborning perjury from its witness, Barbara Geraci. Claims of
prosecutorial misconduct sound in ineffectiveness of counsel for purposes of
the PCRA. Commonwealth v. Tedford, 960 A.2d 1 (Pa. 2008) (holding
where counsel fails to object to prosecutor misconduct at trial, claim must be
argued as ineffective assistance of counsel). Appellant asserts that evidence
adduced at trial proved that the prosecutor knew Appellant was not
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associated with a hotel room where Ms. Geraci found incriminating evidence,
and yet permitted her to testify that Appellant was connected to it. Thus,
Appellant’s claim assails trial counsel’s failure to object to this alleged
misconduct.
At trial, the Commonwealth offered the testimony of Ms. Geraci, a
hotel housekeeper, who recovered keys to the getaway vehicle in a room
rented by Porter. When Ms. Geraci was first questioned regarding the renter
of the room, she replied “I believe it was rented to Damone Porter and
[Appellant].” N.T. Trial, 10/1/10, at 313. Trial counsel did not object to Ms.
Geraci’s statement. The Commonwealth immediately thereafter offered into
evidence, without objection, a receipt for that room indicating that
Appellant’s co-defendant, and not Appellant, had rented the room. Id. at
314. Appellant maintains the prosecutor elicited Ms. Geraci’s initial response
to associate him with incriminating evidence, despite possessing the receipt,
which clearly indicated only Porter rented the room. The PCRA court
determined this issue lacked merit. We agree.
The PCRA court found the testimony of the housekeeper was “real and
genuine.” Order, 3/11/15, at unnumbered 2. It notes that Appellant offered
no proof that the housekeeper, a neutral witness, fabricated her testimony.
Id. She merely stated that it was her subjective belief that Appellant and
Porter both rented the room. That the Commonwealth immediately offered
a receipt implicating Porter as the renter of the room demonstrated that it
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quickly dispelled any falsity associated with Ms. Geraci’s statement that she
thought Appellant was one of the renters. Without proof to establish the
Commonwealth engaged in misconduct, trial counsel cannot be found
ineffective for failing to object. Therefore, we find this claim is devoid of
merit, and hence, it fails.
Appellant next challenges direct appeal counsel’s failure to properly
preserve a weight-of-the-evidence claim. On appeal, this Court found
counsel had conflated a weight claim with a sufficiency claim, and had
thereby waived the issue. Rouse, supra, at 15. Appellant maintains that
the verdict was against the weight of the evidence, and thus, counsel was
ineffective for failing to preserve his claim. Since we find Appellant’s
underlying challenge to the weight of the evidence to be without arguable
merit, direct appeal counsel was not ineffective for failing to preserve the
issue. See Perry, supra.
When we review a weight-of-the-evidence challenge, we do not
actually examine the underlying question; instead, we examine the trial
court’s exercise of discretion in resolving the challenge. Commonwealth v.
Leatherby, 116 A.3d 73, 82 (Pa.Super. 2015). This type of review is
necessitated by the fact that the trial judge heard and saw the evidence
presented. Id. Moreover, “One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that the verdict was or
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was not against the weight of the evidence and that a new trial should be
granted in the interest of justice.” Id.
A new trial is warranted in this context only when the verdict is “so
contrary to the evidence that it shocks one’s sense of justice and the award
of a new trial is imperative so that right may be given another opportunity to
prevail.” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014). It is
essential to note, “The finder of fact . . . exclusively weighs the evidence,
assesses the credibility of witnesses, and may choose to believe all, part, or
none of the evidence.” Commonwealth v. Konias, 136 A.3d 1014, 1023
(Pa.Super. 2016) (citation omitted).
The trial court denied Appellant’s post-sentence motion challenging the
weight of the evidence. The PCRA court, who also presided at trial, reviewed
Appellant’s weight-of-the-evidence claim and determined the argument was
without merit. The PCRA court noted that this Court found sufficient
evidence to convict Appellant and that the testimony identifying Appellant
near the crime scene, and in possession of a firearm, immediately after
shots were fired would not suggest the verdict should be overturned. Upon
review of the record, we discern no abuse of discretion in the denial of
Appellant’s weight claim. We concur with the PCRA court that the issue is
meritless. Ample circumstantial evidence supported Appellant’s conviction,
and he does not otherwise highlight evidence that was purportedly weighed
improperly. Thus, no relief is due.
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Appellant next argues that PCRA counsel was ineffective for failing to
assert a claim arising from “newly discovered evidence.” Appellant’s brief at
23. As this issue was raised in Appellant’s Pa.R.Crim.P. 907 response, and
included in his Pa.R.A.P. 1925(b) statement, it is properly before us.2 Cf.
Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009) (challenge to
PCRA counsel’s ineffectiveness was not preserved on appeal since it was not
raised during trial court proceedings in response to Pa.R.C.P. 907 notice or
no merit letter).
We note, however, although Appellant characterized this claim as
“newly discovered evidence,” he concedes he was aware of the evidence at
trial. Appellant’s brief at 24. Appellant claims PCRA counsel was ineffective
for failing to contact Eugene Mackey to persuade him to testify, and to
confirm that he was willing and able to provide an alibi defense. Specifically,
Appellant contends that he asked PCRA counsel to use a purported affidavit
created by Eugene Caldwell to convince Mackey to offer alibi testimony on
Appellant’s behalf. According to Appellant, Mackey was unwilling to testify
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2
Appellant relies on Martinez v. Ryan, 132 S.Ct. 1309 (2012), for the
proposition that ineffective assistance of counsel during collateral review
may establish cause for a prisoner’s procedural default of a claim of
ineffective assistance at trial. However, as Martinez relates to jurisdictional
prerequisites for ineffectiveness claims before a federal habeas proceeding,
it is inapplicable here.
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without assurance that Caldwell would corroborate his account of Appellant’s
whereabouts on the day in question.
Counsel has a general duty to undertake reasonable investigations or
make reasonable decisions that render particular investigations unnecessary.
Commonwealth v. Mitchell, 105 A.3d 1257, 1276 (Pa. 2014) (citation
omitted). “The duty to investigate, of course, may include a duty to
interview certain potential witnesses; and a prejudicial failure to fulfill this
duty, unless pursuant to a reasonable strategic decision, may lead to a
finding of ineffective assistance.” Id. However, counsel’s “failure to
interview a particular witness prior to trial does not constitute ineffective
assistance of counsel unless there is some showing that such an interview
would have been beneficial to the defense under the facts and circumstances
of the case.” Id.
The PCRA court adopted PCRA counsel’s Turner/Finley analysis in
rejecting this claim. Counsel represented that, during a series of
communications with Appellant regarding Mackey, Appellant acknowledged
Mackey’s reluctance to provide alibi testimony without Caldwell’s
corroboration. However, Appellant failed to produce Caldwell’s affidavit, and
PCRA counsel attested that the affidavit did not emerge in discovery.
Consequently, PCRA counsel did not contact Mackey since “he appears to be
an alibi witness who does not want to provide an alibi,” confirming
Appellant’s assessment in a prior communiqué, that “[Mackey] just doesn’t
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want to get involved with this situation.” Letter from PCRA Counsel to
Appellant, 5/12/14, at 2. PCRA counsel concluded, and the PCRA court
agreed, that Mackey’s participation would not benefit Appellant’s defense,
and thus, the issue lacked merit. We agree.
Although Appellant continues to maintain that Caldwell generated an
affidavit attesting to Appellant’s whereabouts during the commission of the
crime, the record contains no such affidavit. Furthermore, Appellant
informed PCRA counsel of Mackey’s unwillingness to testify, and has offered
no argument that Mackey would be willing to testify even if an affidavit, or
other statement from Caldwell, was produced. Commonwealth v. Pander,
100 A.3d 626, 639 (Pa.Super. 2014) (en banc) (citation omitted) (finding
counsel will not be deemed ineffective for failing to investigate a witness or
call a witness to testify unless the PCRA petitioner demonstrates, inter alia,
that the witness was willing to testify for the defense). Appellant simply has
made no showing that contacting Mackey would have been beneficial to the
defense. Mitchell, supra. Thus, this claim also fails.
As a corollary matter, Appellant appended an “unsworn declaration,”
which we will treat as a witness certification, to his PCRA petition regarding
Mackey’s supposed testimony at the PCRA hearing. Pursuant to Pa.R.Crim.P.
902(A)(15), Appellant is required to attach a signed certification as to each
witness he intends to offer when requesting an evidentiary hearing. That
rule reads, in pertinent part:
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A petition for post-conviction collateral relief shall bear the
caption, number, and court term of the case or cases in which
relief is requested and shall contain substantially the following
information . . . (15) if applicable, any request for an evidentiary
hearing. The 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 of
the 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). Appellant’s attached certification reads:
Feb. 2009 (I don’t remember the exact date, but I only fixed a
flat for “Uey” once). Eugene “Uey” [Caldwell] called me (Eugene
Mackey) and told me he was almost back on the Northside he
was coming from getting a new tire. He said his car was parked
on a side street behind Dave’s Barbershop, an that I should
meet him down there. I left Northview Heights at about 3:30
[p.m.] I remember [because] Northview Elementary kids were
still walking home from school. Once I got to Uey’s car, Uey,
[Appellant] and a couple other young dudes were sitting on
some steps smoking weed and busting jokes. I remember
clearly for a fact [Appellant] was sitting there the whole time,
from the time I got down there till the time I got finish an we all
left. Once I got finish, we drove down Manchester to McDonald’s
(Me, [Appellant], Uey and another young dude). Right after that
they took me up to Northview Heights. I’m not sure of the time
but I do recall it was dark outside now
Appellant’s witness certification is unsigned, and fails to include the
witness’s date of birth or address as required by Rule 902(A)(15). Although
it purports to set forth alibi testimony by Mackey, it merely established
Appellant’s whereabouts on some day in in February 2009. Thus, Appellant
has failed to demonstrate prejudice due to counsel’s decision not to contact
Mackey. “Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have been
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different.” Pander, supra at 631 (quoting Commonwealth v. Stewart,
84 A.3d 701, 706-07 (Pa.Super. 2013) (en banc). Therefore, PCRA counsel
cannot be ineffective for failing to call Mackey as an alibi witness. Perry,
supra.
We now turn to Appellant’s fourth issue, wherein Appellant contends
the PCRA court erred in not granting him a new trial to offer expert
testimony regarding the unreliability of eyewitness identification pursuant to
Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014). The PCRA court
found this issue meritless since the Walker decision has not been held to
apply retroactively.3 We agree.
In Walker, our Supreme Court reviewed extensive scientific research
and observed the trend among federal and state courts, to overturn the per
se ban on expert testimony regarding eyewitness identification.
Nonetheless, the Supreme Court concluded the admissibility of such
testimony in criminal proceedings in Pennsylvania should be left to the
discretion of the trial court. Walker, supra, at 792-793. The Court did not
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3
Appellant originally raised this issue as an ineffectiveness claim against
direct appeal counsel in his response to PCRA counsel’s motion to withdraw.
Hence, the PCRA court analyzed this issue under that rubric. Appellant
altered this claim to its present formulation for the purposes of his Rule
1925(b) statement and his brief. We refrain from finding waiver here as we
can liberally construe Appellant’s filed materials to encompass his current
claim, and doing so does not otherwise affect our disposition. See
Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014) (“courts may
liberally construe materials filed by a pro se litigant[.]”).
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express whether Walker should apply retroactively. Rather, it indicated
that “the admission of expert testimony regarding eyewitness identification
is no longer per se impermissible[.]” Id. at 793 (emphasis added).
Neither the Supreme Court, nor any court of this Commonwealth, has
found Walker to apply retroactively to cases on collateral review, and we
decline to do so here. The Walker court did not base its decision on
constitutional jurisprudence, and the rule does not implicate a right so
fundamental to the fairness of the criminal proceeding as to warrant
retroactive effect. See Teague v. Lane, 489 U.S. 288 (1989) (plurality);
Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011); Commonwealth v.
Washington, 2016 WL 3909088 (Pa. 2016).
Appellant’s trial began in September 2010, and the Pennsylvania
Supreme Court denied his petition for allowance of appeal on February 13,
2013. Thus, Appellant’s judgment of sentence became final on Tuesday,
May 14, 2013, when the ninety-day period to seek certiorari with the United
States Supreme Court expired. As Walker was decided May 28, 2014, it is
not applicable to Appellant’s criminal proceedings, and his position does not
afford him relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2016
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Com. v. Rouse, R.
Combined Opinion