J-S21002-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
AARON VAUGHN HENDERSON :
:
Appellant : No. 15 WDA 2016
Appeal from the PCRA Order December 1, 2015
in the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0014877-2010
BEFORE: LAZARUS, DUBOW, and STRASSBURGER, JJ.*
DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED: MAY 18, 2017
Because the PCRA court erred by denying Appellant relief, I
respectfully dissent and offer the following analysis.
On April 19, 2011, our Supreme Court granted allocatur on the issue
of whether a trial court should have the discretion to permit expert
testimony regarding memory, perception, and race as it related to
eyewitness testimony. See Commonwealth v. Walker, 17 A.3d 921 (Pa.
2011). Appellant’s trial commenced on November 30, 2011, and the
Commonwealth presented the eyewitness testimony of Rhonda Johnson. In
concluding the evidence was sufficient to sustain Appellant’s conviction, this
Court pointed out that “the jury credited Johnson’s repeated identifications
of [Appellant] as the shooter.” Commonwealth v. Henderson, 93 A.3d
519 (Pa. Super. 2013) (unpublished memorandum).
*Retired Senior Judge assigned to the Superior Court.
J-S21002-17
Despite the fact that our Supreme Court had granted allocatur in
Walker, counsel for Appellant did not file a motion to present expert
testimony for the purpose of preserving this issue in the event the Supreme
Court would join “courts in 44 states and the District of Columbia [in
permitting] such testimony at the discretion of the trial judge.”
Commonwealth v. Walker, 92 A.3d 766, 782 (Pa. 2014). On May 28,
2014, the Supreme Court concluded that Pennsylvania would indeed join the
vast majority of states in permitting such testimony. At that point,
Appellant’s judgment of sentence had been affirmed by this Court, and his
petition for allowance of appeal was being considered by our Supreme Court.
Accordingly, his judgment of sentence was not yet final.1
In his timely-filed PCRA petition, Appellant contends that trial counsel
was ineffective for failing to preserve this issue. The PCRA court, and now
the Majority here, conclude counsel was not ineffective because at the time
of trial, Pennsylvania law did not permit counsel to call such an expert. We
recognize that counsel “will not be deemed ineffective for failing to anticipate
a change in the law.” Commonwealth v. Cam Ly, 980 A.2d 61, 96 (Pa.
2009). However, the issue in this case is whether trial counsel should have
been aware of the grant of allocatur in Walker and preserved the issue for
1
Neither this Court nor the Supreme Court has decided whether the new
evidentiary rule announced in Walker should be retroactive. However, that
does not matter in this case because Appellant’s judgment of sentence was
not final when Walker was decided; so no analysis of retroactivity is
required.
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the purposes of appeal in the event the Supreme Court changed
Pennsylvania law.2
Our examination of case law reveals no cases directly on point in
Pennsylvania.3 Moreover, the Circuit Courts of Appeal are divided as to how
such matters should be handled.4 Under the facts of this case, where our
Supreme Court adopted a rule that was present in 44 other jurisdictions, I
believe that counsel could have had no reasonable basis for not knowing
about Walker and then preserving this issue. Because Appellant was
prejudiced by trial counsel’s ineffectiveness, he is entitled to a new trial.
2
Trial counsel submitted an affidavit stating that he was not aware of the
grant of allocatur in Walker.
3
Our Supreme Court addressed a Walker-related issue in Commonwealth
v. Cousar, 154 A.3d 287 (Pa. 2017). In that case, Cousar was charged
with capital murder with respect to a series of crimes including murders that
occurred in 1999. At his 2001 trial, he was found guilty, and his judgment
of sentence was affirmed by our Supreme Court in 2007. In 2017, our
Supreme Court considered his timely-filed PCRA petition. In that petition, he
alleged that trial counsel was ineffective for failing to file a motion to permit
“testimony in the area of eyewitness identification. Id. at 303. Our Supreme
Court concluded that Appellant was not entitled to an evidentiary hearing or
relief for a “claim raised on a collateral attack approximately fifteen years
after trial, and following a change in the law as any examination of the
reasonableness of counsel’s chosen course would necessarily entail hindsight
analysis.” Id. The instant matter is distinguishable because the Supreme
Court granted allocatur prior to Appellant’s trial.
4
For a comprehensive analysis of this issue, see Ruth Moyer, Counsel As
“Crystal Gazer”: Determining the Extent to Which the Sixth Amendment
Requires That Defense Attorneys Predict Changes in the Law, 26 Geo. Mason
U. Civ. Rts. L.J. 183 (2016).
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