Com. v. Jacobs, S.

J-S59037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.

SHAWN OMAR JACOBS

Appellant No. 2755 EDA 2014

Appeal from the PCRA Order August 26, 2014
in the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0002057-2009

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 04, 2017

Shawn Omar Jacobs (“Appellant”) appeals from the order of the

Montgomery County Court of Common Pleas denying his first petition for

relief filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546. We affirm.

On December 10, 2008, Appellant and his co-defendant, Stanley

Howard, (“Howard”) committed the armed robbery of Jamal Terry (“Terry”)

and Andrew Willis (“Willis”), during the course of which Appellant shot and

killed Terry. At the conclusion of a joint trial on August 21, 2009, the jury

convicted Appellant of first-degree murder and Howard of second-degree

murder. The jury also convicted both men of robbery and related offenses.

The PCRA court summarized Willis’s trial testimony as follows:

*
Former Justice specially assigned to the Superior Court.
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[Willis] testified that, shortly after 11 p.m. on the night
of December 10, 2008, he and [Terry] went to the Golden
Dragon restaurant at the corner of Powell and Spruce
Streets so that [Terry] could purchase cigarettes. Inside
the restaurant, [Willis] noticed two men “standing by the
door, just hanging around.” At trial, [Willis] definitively
identified these two men as [Appellant] and [Howard].
[Willis] testified that he was “one hundred percent sure” of
the accuracy of his identification.

[Willis] testified that he and [Terry] left the Golden
Dragon and were walking down Powell Street when [Terry]
suddenly stopped. [Willis] turned to see why [Terry] had
stopped and saw that [Appellant] and Howard were
approaching them. [Willis] saw that Howard was armed
with a handgun.

[Willis] testified that Howard took physical control of
him, pulling him by the shirt and compelling him to
proceed to a yard adjacent to 1064 Powell Street, where
he forced [Willis] to lie on the ground. [Appellant]
meanwhile, had taken physical control of [Terry]. [Willis]
could hear [Appellant] demanding that [Terry] give him
“money or anything valuable he had on him.”

Still armed with the handgun, Howard ordered [Willis]
to empty his pockets. [Willis] removed cash and a cell
phone from his pockets. Howard picked up the phone and
the cash and then pistol-whipped [Willis] three times in the
head. As he lay on the ground, [Willis] could hear [Terry]
telling [Appellant] to take whatever he wanted from him.

Howard then forced [Willis] to get back on his feet.
Holding his gun to [Willis’s] back, Howard compelled
[Willis] to go into a side yard, where he ordered [Willis] to
go down onto his knees and put his hands on his head.
From this vantage point, [Willis] could see [Appellant] and
[Terry] on the sidewalk. [Willis] could hear [Appellant]
ordering [Terry] to surrender his valuables and [Terry]
continuing to tell [Appellant] to take whatever he wanted.
Howard – who was still with [Willis] in the side yard – then
instructed [Appellant] “to stop playing with him, smack
him up.”

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At this point, Howard again forced [Willis] to lie on the
ground, following which Howard left the side yard and
went to [Appellant], giving [Appellant] his handgun, again
telling [Appellant] to “smack him up” and stop playing with
him.”

Howard then returned to the side yard, put his fist to
[Willis’s] back, and began rifling through [Willis’s] pockets,
demanding to know what else [Willis] had, taking [Willis’s]
wallet and a second cell phone. From where he lay,
[Willis] heard [Appellant] demanding that [Terry] give him
“what’s in your pockets,” and [Terry] continuing to tell
[Appellant] to take anything he wanted. [Willis] then
began shouting himself, telling Howard and [Appellant] to
take whatever they wanted because he and [Terry] want
to go home to their families.

[Willis] testified that the next thing that happened was
that he heard a single gunshot, coming from “the area
where [Terry] and [Appellant] were standing,” following
which Howard and [Appellant] fled the scene.

PCRA Ct. Op., 8/14/15, at 1-4 (citations omitted). Officers from the

Norristown Police Department arrived on scene within minutes. Terry was

transported to a hospital, but was pronounced dead on arrival.

On January 11, 2010, the trial court sentenced Appellant to an

aggregate term of life in prison, as well as a consecutive term of fifteen to

thirty years of imprisonment.1 Appellant filed a timely appeal to this Court.

Among his issues raised was a claim that the prosecutor committed a

1
The trial court sentenced Howard to an aggregate term of life in prison,
and a consecutive term of five to ten years of imprisonment. In an
unpublished memorandum filed on November 3, 2010, we affirmed his
judgment of sentence. See Commonwealth v. Howard, 681 EDA 2010
(Pa. Super. Nov. 3, 2010) (unpublished memorandum).

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violation of Bruton v. United States, 391 U.S. 123 (1968), when, during

his closing argument, the prosecutor referenced Appellant by name while

discussing a statement to the police made by Howard that had been

admitted into evidence at trial in redacted form. Although trial counsel

raised an appropriate objection at trial, Appellant claimed that the trial court

erred in failing to rule on the objection.

In an unpublished memorandum filed on December 7, 2010, this Court

affirmed on the basis of the opinion prepared by the trial court and affirmed

the judgment of sentence. See Commonwealth v. Jacobs, 353 EDA 2010

(Pa. Super. Dec. 7, 2010) (unpublished memorandum). On May 3, 2011,

our Supreme Court denied Appellant’s petition for allowance of appeal.

Commonwealth v. Jacobs, 21 A.3d 1191 (Pa. 2011). The United States

Supreme Court denied Appellant’s petition for writ of certioriari on February

21, 2012. Jacobs v. Pennsylvania, 132 S. Ct. 1580 (2012).

On July 19, 2012, Appellant filed a timely pro se PCRA petition. The

PCRA court appointed counsel and, on June 21, 2013, PCRA counsel filed an

amended PCRA petition. The Commonwealth filed its answer on July 13,

2013. The PCRA court held an evidentiary hearing on January 23, 2014.

Subsequently, Appellant informed the court that he wished to raise an

additional issue, and PCRA counsel filed a second amended petition. In light

of this newly raised issue, the PCRA court held an additional hearing on

August 7, 2014. By order entered August 25, 2014, the PCRA court

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dismissed Appellant’s petition. PCRA counsel filed a timely appeal on

Appellant’s behalf, as well as a timely Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.

After this Court granted the PCRA court’s request for an extension of

time in which to file its Pa.R.A.P. 1925(a) opinion, the PCRA court received

from Appellant a pro se “Motion to Waive the Right to Counsel and Proceed

Pro Se,” in which he requested a hearing pursuant to Commonwealth v.

Grazier, 713 A.2d 81 (Pa. 1998). A Grazier hearing was held on April 14,

2015, and, after an on-the-record colloquy with Appellant, the PCRA court

determined that Appellant knowingly, voluntarily, and intelligently waived his

right to counsel. Accordingly, Appellant was permitted to proceed pro se,

and the PCRA court afforded him thirty days to file a pro se Rule 1925(b)

statement. When Appellant failed to do so, the PCRA court afforded him an

additional twenty-one days to file his statement. The PCRA court informed

Appellant that if he still did not file a pro se statement, the court would

prepare its Rule 1925(a) opinion by addressing the claims in the Rule

1925(b) statement previously filed by counsel. Because Appellant never

filed a pro se statement, the PCRA court’s Rule 1925(a) opinion addresses

the claims that were raised by PCRA counsel.2

2
Although Appellant did not comply with the PCRA court’s order to submit a
pro se Rule 1925(b) statement, we conclude that Appellant’s issues were
sufficiently preserved for our review. Our review of the record reveals a
letter from Appellant that included a “draft” of the Rule 1925(b) statement

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Appellant raises the following issues:

POINT A

The prosecutor referenced [Appellant] by name twice while
discussing Howard’s—a non-testifying codefendant—
redacted statement during his closing summation. Did this
violate [Appellant’s] Confrontation Clause rights? If so,
the PCRA court abused its discretion by not finding trial
counsel ineffective for objecting only after the prosecutor’s
second violative remark and not requesting a mistrial.

POINT B

Willis observed [Appellant] on three prior occasions; once
at a photo lineup, and twice in the media. Did [Appellant]
stand out at the subsequent police arranged physical
lineup procedure? If so, the PCRA court abused its
discretion by not finding trial counsel ineffective for not
seeking to suppress or otherwise object to [Willis’s]
identification testimony.

POINT C

Were each of the claims presented here valid and
prejudicial to [Appellant’s] defense? If so, the PCRA court
abused its discretion by not finding trial counsel ineffective
for his multiple instances of deficient performance.

Appellant’s Brief at 7.

Our scope and standard of review is well-settled:

In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court’s hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA

to be filed by PCRA counsel. The claims raises in this letter and PCRA
counsel’s subsequently filed Rule 1925(b) statement are the same.
Additionally, the trial court instructed Appellant that it would address the
issues raised in counsel’s Rule 1925(b) statement. Under these
circumstances, we decline to find all issues waived based on Appellant’s
failure to file a pro se Rule 1925(b) statement.

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appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court’s
factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court’s legal
conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015) (internal citations and quotations omitted).

To obtain relief under the PCRA on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel’s ineffectiveness so undermined the truth-determining process

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

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable

strategic basis for his or her action or inaction; and (3) petitioner was

prejudiced by counsel's act or omission. Id. at 533.

A finding of “prejudice” requires the petitioner to show “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. (citation omitted).

In assessing a claim of ineffectiveness, when it is clear that appellant has

failed to meet the prejudice prong, the court may dispose of the claim on

that basis alone, without a determination of whether the first two prongs

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have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.

1995). Counsel cannot be deemed ineffective for failing to pursue a

meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.

2003) (en banc).

Moreover, trial counsel's strategic decisions cannot be the subject of a

finding of ineffectiveness if the decision to follow a particular course of action

was reasonably based and was not the result of sloth or ignorance of

available alternatives. Commonwealth v. Collins, 545 A.2d 882, 886 (Pa.

1988) (cited with approval by Commonwealth v. Hall, 701 A.2d 190, 204

(Pa. 1997)). “[C]ounsel’s approach must be so unreasonable that no

competent lawyer would have chosen it.” Commonwealth v. Ervin, 766

A.2d 859, 862-63 (Pa. Super. 2000) (quoting Commonwealth v. Miller,

431 A.2d 233, 234 (Pa. 1981). Our Supreme Court has defined

“reasonableness” as follows:

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 not 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 decision had
any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting Com.

ex rel. Washington v. Maroney, 235 A.2d 349, 352-53 (Pa. 1967)). See

also Commonwealth v. Clark, 626 A.2d 154, 157 (Pa. 1993) (explaining

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that a defendant asserting ineffectiveness based upon trial strategy must

demonstrate that the “alternatives not chosen offered a potential for success

substantially greater than the tactics utilized”). A defendant is not entitled

to appellate relief simply because a chosen strategy is unsuccessful.

Commonwealth v. Buksa, 655 A.2d 576, 582 (Pa. Super. 1995).

In his first issue, Appellant “faults trial counsel for failing to object to

the prosecutor’s first violation of the rule set forth in [Bruton, supra], by

referencing [his] name while discussing codefendant Howard’s redacted

statement.” Appellant’s Brief at 21. In addition, Appellant “faults [trial]

counsel for not requesting a mistrial or a cautionary instruction after

objecting to the prosecutor’s second” Bruton violation. Id.

By way of background, during closing arguments, the prosecutor

discussed Willis’s identification testimony and argued why it was sufficient to

convict Appellant of Terry’s murder. The prosecutor then cited corroborating

evidence that the Commonwealth had presented, including Howard’s

redacted statement, which corroborated the respective roles of Appellant

and Howard in the murder and robbery:

Furthermore, [Howard], in his statement to Detective
McGowan, you remember the progression of truth, but
when we ultimately got to the point where [Howard] told
Detective McGowan the full truth, what did [Howard] say?
What did he attribute that his role in the robbery was?

He said that I was with this other person, and that I
knew it was going to happen, and we were dressed in all
black, and we were in the Golden Dragon, and we saw
these two guys leave, and we followed them, and I knew

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what was going to happen when the other person said, “we
out,” I knew it was going to happen, and we each took
control of one of the different guys, but I didn’t have
control of the guy who died, I didn’t shoot the guy who
dies, I had control of the guy with the ponytail.

You look at [Willis]. [Willis] has a ponytail, and the only
thing [Howard] reverses is he says he doesn’t pistol whip
[Willis]. [Howard] tries to take that off of himself, but he
clearly implicates himself in the entire robbery, and in his
own statement, he attributes his actions as being identical
to the one that [Willis] has said, save the pistol whipping.

[Howard] says he is in control of [Willis]. He said that
[Appellant] has control of [Terry]. So not only is
[Willis’s] testimony corroborated by the physical evidence
at the scene, but it is also corroborated by [Howard’s]
statement given to Detective McGowan, less than a week
after this crime occurred.

N.T., 8/21/09, at 51-52 (emphasis added). Trial counsel did not object to

this first reference to Appellant’s name when discussing Howard’s redacted

statement.

The prosecutor later asserted:

[I]t’s reasonable to conclude that both of these individuals
had contact with that gun, given that it was in close
proximity to their position when they were found by the
police, and, again, [Howard] testified [sic] that at the very
least, both of them were holding it in the car.

But if you also recall, [Howard] said in his statement
they were both holding it in the car, but you also recall
that [Howard] said in his statement that [Appellant] had
handled the gun on the night—

[TRIAL COUNSEL]: Objected to, Your Honor.

[THE PROSECUTOR]: Pardon me. That the other
person had handled the gun on the night of the murder,

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and [Howard] had briefly handled that gun on the night of
the murder.
N.T., 8/21/09, at 62 (emphasis added).3

As noted above, Appellant claimed on direct appeal that the trial court

erred in failing to rule on an objection defense made after the prosecutor’s

second reference to Appellant’s name. The trial court, in its Rule 1925(a)

opinion issued in the direct appeal, characterized the purported Bruton

violation as a “momentary slip” and concluded that “there was no need to

sustain [trial counsel’s] objection because [the prosecutor] immediately

corrected himself.” Trial Ct. Op., 5/19/10, at 18-19. This Court affirmed the

judgment of sentence based on the trial court’s opinion. See Jacobs, 353

EDA 2010 at 2-3. However, the trial court and this Court did not expressly

consider a claim based on the prosecutor’s first reference to Appellant by

name. See id.; see also Trial Ct. Op. at 18-19.

In Bruton, the United States Supreme Court held that a criminal

defendant’s rights under the Confrontation Clause are violated when a trial

court allows the prosecution to admit his or her non-tesifying co-defendant’s

statement that implicates him in the relevant crimes even if the trial court

instructs the jury that they may only use the stated against the co-

defendant. Bruton, 391 U.S. at 137. Subsequently, in Richardson v.

3
The prosecutor’s closing argument reveals several incidents when the
prosecutor misstated the appropriate party, only to immediately correct
himself. See, e.g., N.T., 8/21/09 at 55 (misidentifying Appellant as the
murder victim).

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Marsh, 481 U.S. 200 (1987), the United States Supreme Court examined

the “per se Bruton rule,” and emphasized its narrow scope. The

Richardson Court held that the “the Confrontation Clause is not violated by

the admission of a nontestifying co-defendant’s confession with a proper

limiting instruction when . . . the confession is redacted to eliminate not only

the defendant’s name, but any reference to his or her existence.”

Richardson, 481 U.S. at 211.

Consistent with this precedent, the Pennsylvania Supreme Court has

held that substituting a neutral phrase such as “the other guy” for the

defendant’s name is an appropriate redaction. See Commonwealth v.

Travers, 768 A.2d 845, 851 (Pa. 2001). Our Supreme Court has also

addressed the issue of whether the prosecutor’s opening or closing remarks

to the jury constitutes a separate Bruton violation by negating the proper

redaction of a non-testifying co-defendant’s confession. In Commonwealth

v. Brown, 925 A.2d 147 (Pa. 2007), the Court examined the circumstances

surrounding a purported Bruton violation during the prosecutor’s argument

and concluded that the defendant’s confrontation rights were not violated in

light of the proper redaction of his co-defendant’s confession at trial, and the

“direct, unequivocal, and strong” curative instruction the trial court gave to

the jury that the confession could not be used in any way against the

defendant. Brown, 925 A.2d at 161. Stated differently, the Brown Court

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held that “[i]n light of the context and circumstances of the misstatement . .

. we hold that Bruton’s per se rule does not apply.” Id. at 160.

The PCRA court considered this issue as follows:

As we explained in our [direct appeal] opinion, we saw
no need to formally rule upon [trial counsel’s] objection as
to do so would have been to needlessly call attention to
[the prosecutor’s] remark, which was plainly an
inadvertent slip of the tongue. As we further explained,
[Appellant] was–in any event–entitled to no appellate relief
on the basis of [the prosecutor’s] remark. In [Brown],
our Supreme Court held that a prosecutor’s reference to a
defendant by name in his closing – when discussing a non-
testifying co-defendant’s statement that had been redacted
to eliminate reference to the defendant by name – did not
implicate the per se rule of Bruton, supra. The Court
held that, in such circumstances, when the jury was
properly instructed that the statement was to be
considered only as evidence against the defendant who
made the statement, the court may properly find that
there was no prejudice. As we further noted in our
opinion, in the instant case–as in Brown, supra–the
undersigned explicitly instructed the jurors that, while they
could consider defendant Howard’s statements against
defendant Howard, if they so chose, “You must not,
however, consider the statement against defendant
[Appellant]. You must not use the statement in any way
against [Appellant.]”

* * *

In regard to the first comment by [the prosecutor], it is
plain on the face of the record that [the prosecutor] was
addressing defendant Howard’s role in the crime, and was
discussing the manner in which Howard’s statement served
to corroborate the testimony of [Willis] that implicated
Howard. In any event, to the extent that the
[prosecutor’s] fleeting reference to [Appellant] by name in
this comment could be said to have in any way worked
arguable prejudice against [Appellant], any such prejudice
was cured by the undersigned’s clear instruction that
Howard’s statement could only be considered as evidence

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against defendant Howard, and not as evidence as to
[Appellant].

PCRA Court Opinion, 8/14/15, at 22, 23-24 (some citations omitted).

Our review reveals no basis to disturb the PCRA court’s conclusion.

See Brown, 925 A.2d at 160-61. See also Commonwealth v. Roney, 79

A.3d 595, 629 (Pa. 2013) (acknowledging “that the United States Supreme

Court has not extended the reach of its per se Bruton rule to comments by

counsel, which are by definition nonevidentiary”); Commonwealth v.

James, 66 A.3d 771, 781 (Pa. Super. 2013) (concluding that no Bruton

violation occurred given circumstances of the prosecutor’s misstatement and

curative instruction given by the trial court). Appellant has not

demonstrated the prosecutor’s inapt remarks constituted a per se violation

of Bruton. Moreover, Appellant fails to demonstrate any error in the PCRA

court’s reasoning that any prejudice arising from the remarks did not require

a mistrial and could be cured by the Court’s Bruton instruction to the jury.

See Brown, 925 A.2d at 160-61 (recognizing the trial court is in the best

position to determine whether the misstatement is curable). Lastly, we

conclude the evidence against Appellant was overwhelming and there is no

reasonable basis to conclude that outcome at trial would have been different

had trial counsel objected or requested a mistrial. Thus, Appellant’s first

claim fails.

Appellant next claims that trial counsel was ineffective for failing to

seek suppression of Willis’s pre-trial identification. Appellant asserts that

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trial counsel should have moved to suppress Willis’s pre-trial identification of

him because “the record establishes that [Willis’s] pre-trial and in-court

identifications resulted from the detective[’s] use of an unnecessarily

suggestive identification procedure that created a substantial likelihood of

misidentification.” Appellant’s Brief at 21. According to Appellant, trial

counsel’s failure to file a suppression motion on this basis “permitted the

[jury] to use tainted, unreliable and hence inadmissible identification

testimony in evaluating [his] guilt.” Id. at 22. Finally, Appellant asserts

prejudice because, absent Willis’s identification of him, there was insufficient

evidence to support his murder conviction.

“When . . . an assertion of ineffective assistance of counsel is based

upon the failure to pursue 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.” Commonwealth v. Carelli, 546

A.2d 1185, 1189 (Pa. Super. 1988) (citations omitted).4

An appellate court must assess the reliability of an out-of-court

identification by examining the totality of the circumstances.

Commonwealth v. Johnson, 139 A.3d 1257, 1278 (Pa. 2016). The mere

fact that a witness was unsure about the identification does not mean that

later identifications were unreliable—initial equivocation does not render

4
Trial counsel unsuccessfully sought to suppress physical evidence, but did
not challenge the reliability of the identification.

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later identifications constitutionally unreliable per se. Id. A pre-trial

identification violates due process only when the facts and circumstances

demonstrate that the identification procedure was so impermissibly

suggestive that it gave rise to a very substantial likelihood of irreparable

misidentification. Johnson, 139 A.3d at 1278.

The PCRA court found no merit to Appellant’s ineffectiveness claim,

explaining:

In the instant case, the record reflects that, in oral and
written statements to the police made shortly after the
crime, [Willis] – while in a highly emotional state following
the murder of his friend – provided arguably vague or
inconsistent information concerning the respective heights,
skin tones, and clothing of the perpetrators. As detailed at
length above, however, [Willis] had more than ample
opportunity to view the perpetrators, and [Willis]
subsequently provided definitive identifications of
[Appellant] upon viewing [Appellant] in person at a
physical line-up on July 8, 2009, and in open court during
[Appellant’s] trial. Given this, the information initially
provided by [Willis] concerning the appearance of the
perpetrators goes to the weight to be accorded to
[Willis’s] identification of [Appellant] and not to the
admissibility of the identification. We note that [trial
counsel], indeed, zealously cross-examined [Willis] in
regard to alleged inconsistencies in his descriptions of the
perpetrators, so zealously that the undersigned repeatedly
had to caution [trial counsel] not to be argumentative with
the witness.

We reject [Appellant’s] contention that [Willis’s] in-
person identifications of [him] should be deemed
unreliable because [Willis] had previously failed to
definitively identify a photograph of [Appellant] from a
photo array shown to him shortly after the murder of
[Terry]. [Willis] testified at trial that, in fact, he had
identified the photo of [Appellant] as an individual he was
“pretty sure” was one of the perpetrators, but that couldn’t

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be certain because “The lighting on the photo made me –
his skin tone was a little off, but I was pretty sure that it
was him.” [Willis] testified: “I said that his facial features
resembled the short, but the skin tone in the picture
seemed to be too dark.” There is nothing here that
renders [Willis’s] subsequent definitive in-person
identifications of [Appellant] inherently unreliable.

We also reject [Appellant’s] contention that [Willis’s] in-
person identifications of [him] should be deemed
unreliable because they came after [Willis] saw a
photograph of [him] on the television news after
[Appellant] was arrested. Again, [Willis] had already
identified a photograph of [Appellant] as depicting the
individual he was “pretty sure” was the perpetrator.
Plainly, the record shows that [Willis] had an independent
basis for identifying [Appellant], apart from the
photograph he saw on television.

PCRA Ct. Op. at 14-16 (citations omitted).

Finally, the PCRA court rejected Appellant’s attempt to base his

ineffectiveness claim on the fact that Willis participated in a physical line-up.

The court explained:

We additionally reject [Appellant’s claim that [Willis’s]
identification was inherently unreliable because it was
tainted by an unfairly suggestive physical lineup on July 8,
2009. We likewise reject [his] contention that [trial
counsel] was ineffective for agreeing to the lineup.

During the course of [Appellant’s] first PCRA hearing,
[trial counsel] testified at length as to his reasons for
agreeing to the lineup, and the undersigned readily
determined that [trial counsel] offered a reasonable
strategic basis for the decision that was calculated to
advance [Appellant’s] interests. Stated succinctly, [trial
counsel] testified that he believed that [Willis] would not
be able to identify [Appellant] in the lineup. [Trial counsel]
testified that he came to this conclusion: because [Willis]
had provided the police with descriptive information that
appeared inconsistent with [Appellant] being the

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perpetrator; because [Willis] had been unable to
conclusively identify [Appellant] in the photo array;
because the lineup participants included individuals [trial
counsel] believed [Willis] was likely to incorrectly identify
as the perpetrator, and because [Appellant] told him that
he ([Appellant]) was not at the scene of the crime. [Trial
counsel] specifically noted that [Willis’s] description of the
perpetrator’s skin tone and height appeared inconsistent
with [Appellant’s] appearance, and that there was a
question “as to how much of the face [of the perpetrator]
that was seen” by [Willis] at the time of the crime.

Given all these factors, we determined that [trial
counsel’s] decision to agree to a lineup constituted
reasonable – albeit ultimately unsuccessful – strategy that
was calculated to advance [Appellant’s] interests.
Obviously, had [Willis] failed to identify [Appellant] from
the lineup – or had misidentified another individual – it
would have been a significant boon to the defense.

The undersigned also rejected [Appellant’s] contention
that [trial counsel] should have refused to go forward with
the lineup – or should have moved to suppress the
resulting identification of [him] – on the grounds that the
lineup was unfairly suggestive. This claim arises from the
fact that [Appellant] – at the time of the lineup – had a
tattoo on his right cheek. [Appellant] speculates that the
presence of the tattoo made it probable that [Willis] would
identify [him] as the perpetrator. There is no basis in the
record for such speculation. First, [Appellant] did not have
this tattoo on his face at the time of the robbery/murder,
so its presence during the lineup could not be said to be
unfairly suggestive as identifying the perpetrator in that
regard. Second, there was introduced into the record
absolutely no evidence to support [Appellant’s] further
speculation that the photograph of [him] that [Willis] saw
on the television news depicted [Appellant] with a tattoo.
Third, [Willis] gave no indication that the tattoo played any
part in his identification, much less that he had seen a
tattoo on [Appellant] in the photograph on television. At
trial, [Willis] testified simply that he saw the photograph
shown on television “momentarily, not even a whole
minute, but long enough to know who it was, to realize
who it was.”

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The record reflects that [trial counsel] actually initially
attempted to arrange for the lineup to be conducted with
[Appellant’s] tattoo covered. [Trial counsel] testified that,
when this proved impossible, he discussed with [Appellant]
whether they should go forward with the lineup, and that
they both decided to proceed. The undersigned fully
credited [trial counsel’s] testimony in this regard, and
indeed, in its entirety.

PCRA Ct. Op. at 16-17 (citations omitted).

Given these determinations, the PCRA court concluded:

[Appellant] thus failed to establish that any motion to
suppress [Willis’s] identification of [him] would have been
successful, and [trial counsel] cannot be found ineffective
for failing to file such a motion. [Trial counsel] also cannot
be found to have been ineffective for agreeing to submit
[Appellant] to a physical lineup, because the procedure
was not unduly suggestive under the circumstances and
the decision to submit to the lineup was reasonably
calculated to advance [Appellant’s] interests.

Id. at 18.

Instantly, shortly after the victim’s shooting, Howard and Appellant

went to a house were they both got two teardrop tattoos put on their faces.

N.T., 8/20/09, at 151. One week later, however, Appellant contacted the

tattoo artist and had him change the teardrops to a crescent moon and a

star. Id. at 162-63. On the night of the incident, Willis gave a description

of the assailants to police. Shortly thereafter, he was shown a photo array.

At that time, Willis positively identified Howard. Willis felt “pretty sure” one

of the men in the photo array was Appellant, but equivocated because of

how the picture depicted the man’s skin tone. Approximately one week

later, Willis saw a photograph of Appellant in a news report following

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Appellant’s arrest. After observing Appellant, Willis contacted the police and

told them he was sure that Appellant was the man who killed Terry.

Subsequently, Appellant participated in a prison line-up, and Willis

immediately identified Appellant as the shooter.

Thus, the record supports the PCRA court’s conclusions that any

attempt to suppress Willis’s identification testimony would be meritless. The

PCRA court credited the testimony of counsel over the testimony and other

allegations made by Appellant at the PCRA hearing. We cannot disturb this

determination. See Commonwealth v. Battle, 883 A.2d 641, 648 (Pa.

Super. 2005) (explaining that credibility determinations are solely within the

province of the PCRA court). Moreover, although, in hindsight and contrary

to trial counsel’s belief, Willis did identify Appellant as the perpetrator,

counsel’s failed strategy does not establish his ineffectiveness. Buksa, 655

A.2d at 582. Because trial counsel cannot be deemed ineffective for failing

to file a meritless suppression motion, Appellant’s second issue fails. Loner,

836 A.2d at 132.

In his final issue, Appellant argues cumulative prejudice. Since we

have already determined that Appellant’s second claim lacks merit and/or

that trial counsel had a reasonable basis for his actions, we need not address

this claim further. See Johnson, 139 A.3d at 1287 (citation omitted)

(reiterating that “no number of failed claims may collectively warrant relief if

they fail to do so individually”).

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/4/2017

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