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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
QUINCEY ROSSER, :
:
Appellant. : No. 479 EDA 2017
Appeal from the PCRA Order, January 12, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0015049-2010.
BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 18, 2018
Quincey Rosser appeals from the order denying his first petition for relief
pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
In disposing of Rosser’s direct appeal, this Court summarized the
pertinent facts and procedural history as follows:
On November 11, 2010, [the victim] was walking to her
mother’s house when she noticed two men walking behind
her, who attempted to talk with her. [The victim] ignored
them. However, one of the men behind her then grabbed
her and pulled her into an alleyway. The men then displayed
a knife, threatened to kill her, and began to remove her
clothes. [The victim] struggled with her assailants, began
to scream, and managed to escape, fleeing to her mother’s
home where she called the police.
Officers William Giulian and Brian Smith of the
Philadelphia Police responded to the radio dispatch and
spoke with [the victim], who, although “in an emotional
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state” and “distraught and crying”, was able to provide a
description of her assailants. Officer Giulian then
communicated the description over the police radio and
asked for other police units to search the area for anybody
matching the description. [The victim], along with Officer
Giulian, then proceeded to drive through the neighborhood
to see if they could find the assailants, when another police
unit reported that they had detained some suspects and
requested [the victim] to be brought to determine if they
were the perpetrators. [The victim] immediately identified
one of the suspects, Derrick McLaughlin, as one of her
assailants, but denied that the second person detained had
been involved. While [McLaughlin] was being taken to a
patrol car, he called out to [Rosser], who was standing on
the street, and who began to run away. The police officers
pursued [Rosser], and after they apprehended him, [the
victim] identified him as the second assailant. [Rosser] was
arrested and was charged with [several crimes, including
unlawful restraint and indecent assault].
A three-day jury trial commenced on October 25, 2011,
at the conclusion of which, on October 27, 2011, the jury
found [Rosser] guilty of unlawful restraint and indecent
assault.
[Rosser] was not sentenced until June 15, 2012, when
the trial court sentenced him to [an aggregate term of five
to ten years of imprisonment. Rosser was also designated
a sexually violent predator, and a lifetime registration
requirement was imposed on him pursuant to Megan’s Law.]
Commonwealth v. Rosser, 97 A.3d 795 (Pa. Super. 2014), unpublished
memorandum at 1-3. Rosser filed a timely appeal to this Court. On February
7, 2014, we affirmed his judgment of sentence. Id. On July 29, 2014, our
Supreme Court denied Rosser’s petition for allowance of appeal.
Commonwealth v. Rosser, 96 A.3d 1027 (Pa. 2014).
On October 30, 2014, Rosser filed a timely pro se PCRA petition. On
June 4, 2015, the PCRA court appointed counsel, and, on April 28, 2016, PCRA
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counsel filed an amended petition, in which Rosser raised multiple claims of
ineffective assistance of counsel. On August 4, 2016, the Commonwealth filed
a motion to dismiss. On October 7, 2016, the PCRA court issued Pa.R.Crim.P.
907 notice of its intent to dismiss Rosser’s petition without a hearing. Rosser
did not file a response. By order entered January 12, 2017, the PCRA court
dismissed Rosser’s petition. This timely appeal follows. Both Rosser and the
PCRA court have complied with Pa.R.A.P. 1925.
Rosser raises the following issues in his brief:
I. Whether the [PCRA court] erred in denying [Rosser’s]
petition without a hearing on the issues raised in the
amended PCRA petition regarding [trial counsel’s]
ineffectiveness.
II. Whether the [PCRA] court erred in not granting relief
on the PCRA petition alleging [trial counsel] was
ineffective.
Rosser’s Brief at 8. We will address these claims together.
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
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)
(citations omitted). In addition, A PCRA petitioner’s right to an evidentiary
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hearing is not absolute. Commonwealth v. Barbosa, 819 A.2d 81, 85 (Pa.
Super. 2003). Rather, the PCRA court has discretion to dismiss a petition
without a hearing when the court is satisfied that there are no genuine issues
of material fact, the petitioner is not entitled to post-conviction collateral relief,
and no legitimate purpose would be served by further proceedings.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014). To obtain a
reversal of a PCRA court’s decision to dismiss a petition without a hearing, a
PCRA petitioner must show that he has raised a genuine issue of material fact
which, if resolved in their favor, would have entitled him to relief, or that the
court otherwise abused its discretion in denying a hearing. Id.
Within his second issue, Rosser raises three separate challenges to trial
counsel’s effectiveness. To obtain relief under the PCRA premised 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) counsel’s
act or omission prejudiced the petitioner. Id. at 533.
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As to the first prong, “[a] claim has arguable merit where the factual
averments, if accurate, could establish cause for relief.” Commonwealth v.
Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts
rise to the level of arguable merit is a legal determination.’” Id. (citing
Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).
As to the second prong of this test, 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). Counsel'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) (citation omitted). A petitioner
asserting ineffectiveness based upon trial strategy must demonstrate that the
“alternatives not chosen offered a potential for success substantially greater
than the tactics utilized.” Commonwealth v. Clark, 626 A.2d 154, 157 (Pa.
1993). “We do not employ a hindsight analysis in comparing trial counsel’s
actions with other efforts he [or she] may have taken.” Stewart, 84 A.3d at
707. A PCRA petitioner is not entitled to post-conviction relief simply because
a chosen strategy was unsuccessful. Commonwealth v. Buksa, 655 A.2d
576, 582 (Pa. Super. 1995).
As to the third prong of the test for ineffectiveness, “[p]rejudice is
established if there is a reasonable probability that, but for counsel’s errors,
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the result of the proceeding would have been different." Stewart, 84 A.3d at
707. “A reasonable probability ‘is a probability sufficient to undermine
confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899
A.2d 365, 370 (Pa. Super. 2006).
Finally, when considering an ineffective assistance of counsel claim, the
PCRA court “is not required to analyze these [prongs] in any particular order
of priority; instead if a claim fails under any necessary [prong] of the
ineffectiveness test, the court may proceed to that [prong] first.”
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).
In particular, when it is clear that the petitioner 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 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).
Here, Rosser first claims that trial counsel was ineffective for failing to
file a motion to suppress his pre-trial identification by the victim. According
to Rosser, the victim’s pre-trial identification of him in this case “was so
unnecessarily suggestive and [conducive] to misidentification as to deny [him]
his due process of law. An evidentiary hearing was necessary on this issue
because [he] has presented a genuine issue of material fact[.]” Rosser’s Brief
at 15. We disagree.
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With respect to the identification evidence, this Court has summarized:
The purpose of a “one on one” identification is to enhance
reliability by reducing the time elapsed after the commission
of a crime. 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 [or her] 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. Absent some
special element of unfairness, a prompt “one on one”
identification is not so suggestive as to give rise to an
irreparable likelihood of misidentification.
Commonwealth v. Wade, 33 A.3d 108, 114 (Pa. Super. 2011) (citation
omitted).
In disposing of Rosser’s claim, the PCRA court explained:
Although [Rosser] simply asserts, without sufficient
specificity, that his identification was unduly suggestive,
there is, however, nothing in the record to support this
assertion. Not only did the [victim] promptly report the
assault, she gave Officer Giulian a description of her
assailants. Based on these descriptions, two suspects were
taken into custody, one of whom was exonerated by the
[victim]. Based on the actions of both [Rosser] and his co-
defendant, [Rosser] was taken into custody and positively
identified by the [victim] as the other of her two assailants.
All of this taking place in less than ten minutes of Officer
Giulian first encountering the [victim].
In consideration of the above, even had trial counsel
pursued a motion to suppress, the Court concludes that
there would have been no chance of it succeeding. Counsel,
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therefore, cannot be faulted for his actions and [Rosser] has
failed to meet his burden.
PCRA Court Opinion, 10/13/17, at 7 (citation omitted). Our review of the
record supports the PCRA court’s conclusion.
Before an evidentiary hearing will be granted, a PCRA petitioner “must
set forth an offer to prove at an appropriate hearing sufficient facts upon which
a reviewing court can conclude that trial counsel may have, in fact, been
ineffective.” Commonwealth v. Begley, 780 A.2d 605, 635 (Pa. 2001)
(quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981).
Rosser made no such proffer. Within his brief, he does not take issue with
any of the relevant factors cited above in Wade, but rather, he asserts that
there was no evidence that he matched the description originally given by the
victim to the police, and that he was merely “sitting on the steps with his
friends doing nothing suspicious or illegal.” Rosser’s Brief at 18.1 Given these
circumstances, the PCRA court did not err in dismissing this ineffectiveness
claim without first holding an evidentiary hearing. See Commonwealth v.
Clark, 961 A.2d 80, 94 (Pa. 2008) (explaining that, in the absence of a
sufficient proffer, a petitioner’s bare assertions would inappropriately convert
an evidentiary hearing into a “fishing expedition” for possible exculpatory
evidence).
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1 Rosser does not claim that the police unlawfully detained him.
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In his second claim of ineffectiveness, Rosser asserts that trial counsel
failed “to contact and interview witnesses that would have been beneficial to
[his] defense.” Rosser’s Brief at 19.
Because a decision to call a particular witness implicates matters of trial
strategy, the failure to call a witness is not per se ineffective.
Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007). Rather, is
the PCRA petitioner’s burden to demonstrate that trial counsel had no
reasonable basis for declining to call a witness to testify. Id. As our Supreme
Court has summarized:
When raising a claim of ineffectiveness for the failure to
call a potential witness, a petitioner satisfies the
performance and prejudice requirements of the Strickland
test by establishing that: (1) the witness existed; (2) the
witness was available to testify for the defense; (3) counsel
knew of, or should have known of, the existence of the
witness; (4) the witness was willing to testify for the
defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant
a fair trial. To demonstrate Strickland prejudice, a
petitioner must show how the uncalled [witness’s]
testimony would have been beneficial under the
circumstances of the case. Thus, counsel will not be found
ineffective for failing to call a witness unless the petitioner
can show that the witness’s testimony would have been
helpful to the defense.
Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations
omitted).
The PCRA Court concluded that Rosser did not meet this burden:
After a careful review of the record, the Court agrees with
the Commonwealth that the proposed testimony of Ms.
Venus Rawls and Ms. Glenda Rosser would have directly
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contradicted the trial testimony of Ms. Shuray Bosman, thus
“rendering all accounts incredible.” It cannot be fairly said
that “the absence of the testimony of the witness was so
prejudicial as to have denied the defendant a fair trial.”
[Sneed, supra.] To the contrary, the introduction of such
contradictory testimony would certainly have been
prejudicial to the defense. The Court finds that trial
counsel’s course of action in not presenting such
contradictory testimony did not render his assistance
constitutionally defect.
PCRA Court Opinion, 10/13/17, at 9.
Our review of the record supports the PCRA court’s conclusions. At
Rosser’s trial, he presented the testimony of Ms. Bosman, his girlfriend, in
support of his alibi defense. Within his brief, although Rosser claims that the
testimony of these witnesses was “crucial,” he does establish how their
proposed testimony did not conflict with the alibi defense he presented at trial.
Rosser’s Brief at 19.2 Once again, ineffectiveness claims are not self-proving.
See Begley, supra. Thus, the PCRA court did not err in dismissing this claim
without first holding an evidentiary hearing.
In his final claim, Rosser asserts that trial counsel was ineffective for
failing to file a motion for reconsideration of his sentence. According to
Rosser, he “suffered actual prejudice as a result of counsel’s failure to file” the
motion because he could not “appeal the sentence to the appellate courts.”
Citing our Supreme Court’s decision in Commonwealth v. Reaves, 923 A.2d
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2 Rosser disagrees with the PCRA court’s conclusion that he did not
substantially comply with 42 Pa.C.S.A. § 9545(d)(1). See Rosser’s Brief at
15. Nevertheless, it is clear that the PCRA court did not dispose of Rosser’s
claim on this basis.
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1119, 1131-32 (Pa. 2007), the PCRA court explained that in order for Rosser
to establish “actual prejudice” he “must establish that there was a ‘reasonable
probability’ that such a motion would have resulted in the reduction of his
sentence.” PCRA Court Opinion, 10/13/17, at 10. After reiterating the
reasons it stated previously in support of his sentencing choice, the PCRA court
stated that it found “nothing in the record that would prompt it to even
remotely consider reducing [Rosser’s] sentence.” Id.
In Reaves, supra, our Supreme Court addressed whether a PCRA
petitioner whose counsel failed to file a motion to reconsider sentence suffered
prejudice. The Superior Court had “summarily concluded” that prejudice was
presumed because counsel’s inaction “effectively waived [Reaves’] right to
challenge this issue on appeal.” Reaves, 923 A.2d at 1123 (citing Reaves,
3190 EDA 2003, unpublished memorandum at 4-5).
Our Supreme Court disagreed. Instead, the Court held that a PCRA
petitioner raising a claim of ineffectiveness regarding counsel’s failure to file
a motion for reconsideration must establish actual prejudice. See Reaves,
923 A.2d at 1130. Specifically, the Court held that a PCRA petitioner must
show that filing the motion would have led to a more favorable sentence:
The Commonwealth argues that the Superior Court’s
prejudice analysis misses the mark because the panel
improperly focused on the effect of counsel’s inaction upon
the [appeal], rather than looking to the outcome of the
underlying [proceeding] itself. The Commonwealth is
correct. Although contemporaneous objections operate to
preserve issues for appellate review, they serve an equally
important function in obviating appeals by affording the
trial court a timely opportunity to correct mistakes and/or
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to reconsider decisions. Whether [counsel] can be deemed
ineffective, then, depends upon whether [ a defendant] has
proven that a motion to reconsider sentence if filed . . .
would have led to a different and more favorable outcome
at [sentencing]. In this context, the only way the
proceeding would have been more favorable would be if
counsel’s objection secured a reduction in the sentence. The
Superior Court panel erred as a matter of law in failing to
appreciate the actual focus of the [actual] prejudice
standard.
Reaves, 923 A.2d at 1131-32 (emphasis in original; footnote omitted). Our
Supreme Court further concluded that Reaves did not establish actual
prejudice, since “[on] this record, there is no reason to believe that, if only
counsel had asked for a statement of reasons for the sentence at [the time of
sentencing], that statement or explanation alone would have led the court to
reduce the sentence”). Id. at 1132.
Here, we agree with the PCRA Court that Rosser failed to establish actual
prejudice. Our Supreme Court in Reaves rejected a PCRA petitioner’s claim
of actual prejudice based merely upon counsel’s failure to preserve an
appellate issue. Moreover, although Rosser noted that this was his first adult
offense, that the sentence was “well above the guidelines,” and that he
received consecutive maximum sentences for his crimes, Rosser did not
develop a challenge to the discretionary aspects of his sentence. Compare
Reaves, 923 A.2d at 1132-33 (remanding so that this Court may address
additional claims of ineffective assistance Reaves raised involving the
discretionary aspects of the sentence imposed). Given these circumstances,
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the PCRA court did not err in dismissing Rosser’s final claim of ineffectiveness
without a hearing.3
In sum, the PCRA court correctly determined that Rosser did not
establish any of his claims of trial counsel’s ineffectiveness, and the PCRA
court properly dismissed his amended PCRA petition without a hearing. We
therefore affirm the PCRA court’s order denying post-conviction relief.
Order affirmed.
Judge Dubow joins in this Memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/18
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3 We further note that, Rosser was designated a sexually violent predator
(SVP) in 2012 and his judgment of sentence became final in October 2014,
which predated a panel decision by this Court, on October 31, 2017, finding
the SVP process unconstitutional. See generally, Commonwealth v.
Butler, 173 A.3d 1212 (Pa. Super. 2017). Since that decision was not
retroactive, we need not address Rosser’s SVP designation.
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