J-S37010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMAL HATCHER :
:
Appellant : No. 3607 EDA 2016
Appeal from the PCRA Order October 28, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006133-2010
BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED AUGUST 03, 2018
Appellant, Jamal Hatcher, appeals pro se from the order entered on
October 28, 2016, dismissing his first petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We briefly summarize this case as follows. On July 10, 2011, a jury
convicted Appellant of attempted murder, aggravated assault, conspiracy,
possessing an instrument of crime, and three related firearms offenses. On
September 9, 2011, the trial court sentenced Appellant to 30 to 60 years of
imprisonment. We affirmed Appellant’s judgment of sentence on June 5,
2013. See Commonwealth v. Hatcher, 2013 WL 11262133 (Pa. Super.
2013) (unpublished memorandum).1 On March 17, 2014, Appellant filed a
pro se PCRA petition and thereafter retained counsel, who filed an amended
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1 That decision provides a detailed recitation of the facts of this case.
* Former Justice specially assigned to the Superior Court.
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PCRA petition. Appellant, however, was not satisfied with retained counsel
and counsel later asked to withdraw. The PCRA court appointed PCRA counsel
who filed an amended PCRA petition on August 26, 2015. Thereafter,
Appellant requested that he be permitted to proceed pro se and the PCRA
court granted the request after conducting a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (“When the waiver of
the right to counsel is sought during PCRA review, an on-the-record
determination should be made that the waiver is knowing, intelligent, and
voluntary.”). On July 13, 2016, Appellant filed a pro se amended PCRA
petition. The PCRA court heard arguments and, on September 23, 2016,
issued notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s
various PCRA petitions and amendments. On October 28, 2016, the PCRA
court denied Appellant relief. This timely appeal followed.2
On appeal, Appellant presents the following pro se issues for our review:
1. Did the PCRA court err in denying relief in light of affidavit
evidence substantiating that trial counsel was ineffective for
failing to litigate a motion to suppress and object to an in-court
identification at trial, which was the result of a pretrial live
line[-]up identification [that was] suggestive, unreliable, and
conducive to misidentification?
2. Did the PCRA court err in denying relief in light of
newly-discovered evidence substantiating that the
[C]ommonwealth violated [A]ppellant’s due process rights by
presenting false testimony and fabricated evidence at trial,
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2 Appellant filed a pro se notice of appeal on November 8, 2016. The PCRA
court issued an opinion pursuant to Pa.R.A.P. 1925(a) on February 16, 2017.
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which so undermined the truth-determining process that no
reliable adjudication was possible?
3. Whether [A]ppellant has been denied effective review because
of the loss and/or failure to certify and transmit essential
portions of transcripts, exhibits, and affidavits necessary for
the determination of the issues raised on appeal?
4. Did the PCRA court abuse its discretion by denying
[A]ppellant’s recusal motion without explanation, where Code
of Judicial Conduct Canons and due process mandate recusal
from a proceeding in which a jurist[’s] impartiality might be
reasonably questioned?
Appellant’s Brief at 6 (footnote and suggested answers omitted).
Upon review of the various PCRA filings in this matter, we initially
conclude that Appellant has waived his second issue because his claim that
the Commonwealth presented false and/or fabricated evidence at trial could
have been raised on direct appeal, but was not.3 See 42 Pa.C.S.A. § 9544(b)
(“an issue is waived if the petitioner could have raised it but failed to do so
before trial, at trial, during unitary review, on appeal or in a prior state
post-conviction proceeding”); Commonwealth v. Price, 876 A.2d 988,
992-993 (Pa. Super. 2005) (same), appeal denied, 897 A.2d 1184 (Pa. 2006),
cert. denied, 549 U.S. 902 (2006). In addition, Appellant waived appellate
issues three and four by failing to present them to the PCRA court in the first
instance. See Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006)
(“[A]n issue is waived where it was not presented in the original or amended
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3 Appellant’s effort to support his second claim with an affidavit prepared after
the PCRA court denied relief does not alter our assessment since the PCRA
requires a petitioner to plead and prove that an allegation of error has not
been waived. See 42 Pa.C.S.A. § 9543(a)(3).
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PCRA petition[s] below.”); see also Pa.R.A.P. 302(a). As such, we will not
address issues two, three, and four as set forth above.
In the lone issue we address, Appellant claims that trial counsel was
ineffective for failing to file a motion to suppress the victim’s identification of
Appellant and, subsequently, for not objecting to the victim’s in-court
identification of him. Appellant’s Brief at 15-22. Appellant claims that the
victim failed to identify Appellant or his co-defendant when police showed him
a photo array of potential suspects at the hospital 24 hours after the shooting.
Id. at 15. He suggests that the victim’s girlfriend, who knew Appellant and
co-defendant, influenced the victim to choose Appellant as the perpetrator
during a police line-up. Id. Appellant also maintains that police unduly
suggested that Appellant was the shooter by showing the victim still
photographs from a nearby bank and video surveillance from the Wine and
Spirits liquor store. Id. at 16. Appellant claims that because the victim only
personally observed his assailant for eight seconds while fleeing, the victim
did not have an opportunity to independently witness the criminal act and,
thus, the victim’s subsequent “identifications were based on [the victim’s]
improper exposures to [Appellant], rather than [from the victim’s] memories
of the crime.” Id. at 17-18. Appellant also relies upon an alleged affidavit
from Maisie Suarez, one of the eyewitnesses, who now claims that neither
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Appellant nor his co-defendant was the shooter.4 Id. at 20. In sum, Appellant
claims that the victim’s identification of Appellant was tainted and trial counsel
was ineffective for failing to move to suppress the identification prior to trial
or object to the identification at trial.
Our standard of review of the denial of a PCRA petition is
limited to examining whether the record evidence supports the
court's determination and whether the court's decision is free of
legal error. This Court grants great deference to the findings of
the PCRA court if the record contains any support for those
findings. If the record supports a post-conviction court's
credibility determination, it is binding on the appellate
court. A PCRA court's legal conclusions, however, are
reviewed de novo.
* * *
The law presumes counsel has rendered effective
assistance. When asserting a claim
of ineffective assistance of counsel, the petitioner is required to
plead and prove: (1) the underlying claim has arguable merit;
(2) counsel had no reasonable strategic basis for his action or
inaction; and (3) but for the errors and omissions of counsel, there
is a reasonable probability that the outcome of the proceedings
would have been different.
Commonwealth v. Moriarty, 180 A.3d 1279, 1284–1285 (Pa. Super. 2018)
(internal citations and quotations omitted). “Failure to satisfy any prong of
the test for ineffectiveness will result in rejection of the
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4 Because the affidavit is dated January 18, 2017, after the PCRA court ruled
on the PCRA filings, we may not consider it. See Jones, supra; see also
Pa.R.A.P. 302(a).
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appellant's ineffective assistance of counsel claim.” Commonwealth v.
Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (citation omitted).
Regarding in-court identification testimony:
Suggestiveness in the identification process is but one factor to be
considered in determining the admissibility of such evidence and
will not warrant exclusion absent other factors. As this Court has
explained, 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. The corrupting effect of the suggestive
identification, if any, must be weighed against these factors.
Commonwealth v. Wade, 33 A.3d 108, 114 (Pa. Super. 2011) (internal
citations and quotations omitted).
Here, the PCRA court determined:
[Appellant] cannot demonstrate a reasonable probability that the
verdict would have been different had counsel filed a pretrial
motion to suppress [the victim’s] identification. Indeed there
were other witnesses who identified [Appellant] as the shooter, as
well as surveillance footage showing the same. [… The victim]
testified at trial that he was 100% certain that the man who stood
over him, in broad daylight, and shot him was [Appellant,] Jamal
Hatcher. Thus, an independent basis for the in-court
identification was clearly established and a motion to suppress the
identification would have been an exercise in futility. […] Here,
[Appellant] cannot show that there was a reasonable probability
that the trial outcome would have been different had counsel filed
a pretrial motion to suppress the victim’s identification of him.
PCRA Court Opinion, 2/16/2017, at 3.
Upon review of the record and applicable law, we agree with the PCRA
court’s assessment. In this case, the victim testified unequivocally that
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Appellant was the shooter and that he was able to see him standing over him
firing a weapon during daylight hours. As such, the PCRA court determined
that the victim had ample opportunity to observe his attacker at the time of
the crime and demonstrated complete certainty at the confrontation of
Appellant. We will not disturb the PCRA court’s findings.
Moreover, there was additional overwhelming evidence of Appellant’s
guilt admitted at trial such that there was no probability that the outcome of
trial would have been different without the victim’s identification. In fact,
Appellant conceded that “[t]he Commonwealth presented six eyewitnesses to
the crime.” Appellant’s Pro Se Amended PCRA Petition, 7/13/2016, at 12
(emphasis added). Several of the eyewitnesses were able to identify the
vehicle that Appellant and his brother, the co-defendant, used to flee the crime
scene. Appellant’s brother and mother were the registered owners of the
vehicle and the registration listed their address, which was where Appellant
also resided. The Commonwealth also presented surveillance from a nearby
bank and the liquor store where the victim’s girlfriend worked. With such
evidence presented, Appellant fails to show he suffered prejudice. As such,
his sole reviewable issue on appeal does not merit relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/18
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