Com. v. Amoop, J.

J-S36013-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH M. AMOOP, :
:
Appellant. : No. 428 EDA 2017

Appeal from the PCRA Order, January 6, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0014293-2007,
CP-51-CR-0014308-2007.

BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 18, 2018

Joseph M. Amoop 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.

The PCRA court, which acted as the fact-finder during Amoop’s bench
trial, summarized the pertinent facts as follows:

Desmond McMoore who participated in these crimes with
[Amoop] testified pursuant to a plea agreement. McMoore,
whom this Court found to be a credible witness, testified
that at the time of the crimes [Amoop] and he had been
friends for about one year. In the afternoon of June 4, 2007,
they were drinking on Camac Street with others. They went
to a number of bars and ended up at a bar called the Upper
Deck near Germantown and Chelton Avenues in
Philadelphia. At approximately 2AM they left in McMoore’s
two door 1996 Chrysler [Sebring] looking to commit a
robbery. They drove passed Baynton and Church [S]treets
and saw a large group of people. After turning the corner
J-S36013-18

McMoore retrieved his gun, a .9 millimeter High Point, from
the trunk. [Amoop’s] gun, a Tech 9, was under the
passenger seat. They then drove back around with the
intention to rob all the people on the corner. When the
intended victims saw them, the women and two or three
males immediately ran. They stopped the car and Eric
Christmas, who remained was at the driver’s window.
McMoore grabbed his shirt and Mr. Christmas threw all of
his cash into McMoore’s lap. McMoore pulled out his victim’s
pockets searching for his other items. He pointed his gun
at the victim and demanded more. He then fired his gun
intending to intimidate the victim. While this robbery was
occurring, [Amoop] had left the car to rob the others.
[Amoop], who was returning to the car as Mr. Christmas
was attempting to run away, confronted the victim near the
back of the car. As McMoore heard the victim say, “Ah shit,”
[Amoop] repeatedly shot Mr. Christmas. [Amoop], who was
carrying purses got back into the car and threw the purses
into the back seat. [Amoop] told McMoore that the victim
tried to shoot him and McMoore then fired two shots at the
victim as he lay on the ground. They then drove off.

A few minutes later they stopped at a traffic light at
Broad and Lindley Streets. The second victim, Francisco
Rodriguez was crossing the street and looking into the car.
[Amoop] said to the victim, “What the F are you looking at?”
As Mr. Rodriguez kept staring, [Amoop] pulled his gun,
pointed it out of the sunroof and repeatedly shot it, striking
the victim. They then fled to [Amoop’s] house where others
eventually joined them, including a woman named [Sharita]
Riley.

Eventually McMoore and Sharita left. They went to at
least two gas stations to vacuum the broken glass from the
shattered back windshield which had been shot out during
the robbery. As they arrived at McMoore’s house,
[McMoore] was stopped by the police and arrested. His gun
was seized.

Substantial evidence was introduced corroborating
McMoore’s version of the events. Other witnesses who were
at [Baynton] and Church Streets, coincidently staging an
auto accident for purposes of insurance fraud testified
consistently with McMoore’s version of the incident. One of
those witnesses, Amber Anderson identified [Amoop] in a

-2-
J-S36013-18

line-up. Ballistics evidence taken from the scene and from
the decedents was consistent with McMoore’s testimony.
The Medical Examiner’s testimony, which identified the
causes of death to be gunshots, was consistent with
McMoore’s testimony. Sharita Riley gave a statement to
Detective Donald Marano which was consistent with
McMoore’s testimony. [At trial Ms. Riley denied the
substance of the statement. However, this Court as
factfinder credited the detective’s testimony and found Ms.
Riley’s prior statement to be truthful.] Both McMoore’s and
[Amoop’s] fingerprints were found in the car. In addition
the Commonwealth presented evidence that [Amoop] was
not licensed to carry a firearm.

PCRA Court Opinion, 8/11/17, 2-4 (citation and footnote omitted).

At the conclusion of his bench trial, the trial court convicted Amoop of

two counts of first-degree murder and related charges. On June 28, 2010,

the trial court sentenced him to an aggregate term of life in prison. On August

2, 2012, this Court affirmed Amoop’s judgment of sentence, and, on February

13, 2013, our Supreme Court denied his petition for allowance of appeal.

Commonwealth v. Amoop, 60 A.3d 555 (Pa. Super. 2012) (unpublished

memorandum), appeal denied, 63 A.3d 772 Pa. 2013).

On April 9, 2014, Amoop filed a timely pro se PCRA petition in which he

raised various trial court errors, after-discovered evidence, and multiple

claims of ineffective assistance of trial counsel. The PCRA court appointed

counsel, and, on November 12, 2015, PCRA counsel filed an amended petition

raising only Amoop’s claim of after-discovered evidence. Upon motion of both

Amoop and PCRA counsel, the PCRA court held a Grazier1 hearing, and

____________________________________________

1 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

-3-
J-S36013-18

determined that Amoop wished to proceed pro se. On June 6, 2016, the PCRA

court granted Amoop $1000.00 to hire a private investigator.

On June 28, 2016, Amoop filed an amended pro se PCRA petition, in

which he reiterated the claims raised in his first pro se petition. Thereafter,

the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss Amoop’s

petition without a hearing. On October 21, 2016, Amoop filed a timely

response. By order entered January 6, 2017, the PCRA court dismissed

Amoop’s amended petition. This timely appeal follows. Both Amoop and the

PCRA court have complied with Pa.R.A.P. 1925.

Amoop raises the following issues in his brief:

I) Did the PCRA Court commit an error of law and fact
when it held that [Amoop’s amended PCRA petition
had] no merit?

II) Did the PCRA Court commit an error of law and fact
when it held without [an] evidentiary hearing, [trial
counsel] was [not] ineffective for not objecting to
expert use and admission of Testimonial Hearsay
(autopsy report) authored by another as [the] basis
to form his opinion which violated [Amoop’s] Sixth
and Fourteenth Amendment right under the United
States [C]onstitution and Article [I] §9 of [the]
Pennsylvania [C]onstitution right to confront adverse
witness?

III) Did the PCRA Court commit an error of law and fact
when it held without [an] evidentiary hearing, [trial
counsel] was not ineffective for failing to get [an]
exculpatory statement admitted on the record at trial
and was [Amoop] denied Due Process, Equal
Protection and Fundamental Fairness where excluded
evidence [proved] actual innocence and did [the] trial
court apply Hearsay rule mechanistically to deny the
[interests] of justice?

-4-
J-S36013-18

IV) Did the PCRA court commit an error of law and fact
when it held without holding [an] evidentiary hearing,
[trial counsel] was not ineffective for failing to
investigate forensic evidence by not properly cross
examining [the] state expert witness and by not
consulting and retaining his own ballistics expert that
specialize[s] in [the] trajectory of bullet projectiles?

V) Did the PCRA Court commit an error of law and fact
when it held without holding [an] evidentiary hearing,
[after-discovered] evidence of actual innocence in the
form of [an] affidavit of truth by Jose Lopez held no
merit, which stated that state witness [McMoore]
admitted to him that his trial testimony was perjured
and McMoore was the one who actually committed the
murders?

Amoop’s Brief at 4-5.

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

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.

-5-
J-S36013-18

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

petitioner must show that he has raised a genuine issue of material fact which,

if resolved in his favor, would have entitled him or her to relief, or that the

court otherwise abused its discretion in denying a hearing. Id.

In his second, third and fourth issues, Amoop 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.

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).

-6-
J-S36013-18

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,

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).

-7-
J-S36013-18

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).

Amoop first claims that trial counsel was ineffective for failing to object

to the admission of Dr. Gary Collins’ testimony regarding the victims’ manner

and cause of death. According to Amoop, Dr. Collins based his conclusions,

at least in part, on his review of the victims’ autopsy reports which were

authored by another medical examiner who did not testify at trial. Relying on

Commonwealth v. Yohe, 79 A.3d 520, 539 (Pa. Super. 2013), as well as

the United States Supreme Court’s decisions discussed therein, Amoop argues

that “the introduction of such a report at trial may occur only when the

testifying witness is the person who prepared the report, observed the

examination for which the report arose, actively supervised its preparation

and completion and is subjected to cross-examination.” Amoop’s Brief at 11.

-8-
J-S36013-18

Amoop then argues that “because the autopsy report and the toxicology

report [sic] in this case at hand was introduced by a witness who met none of

the [Yohe] criteria, its direct use at trial violated [his] confrontation

guarantee.” Id. In addition, Amoop argues the “constitutional analysis is no

different when an expert reads the report and makes it the basis for his new

conclusion.” Id. According to Amoop, “[u]se of testimonial hearsay to

establish a conclusion deprives an accused of the same confrontation

guarantee.” Id.

The PCRA court found no merit to Amoop’s claim:

Dr. Collins did not perform the actual autopsy. The
autopsy was performed by Dr. Bennett Preston.
Photographs were taken during the autopsy, samples were
taken, tests were performed and reports were written. The
record is clear that, prior to reaching his own conclusions,
Dr. Collins reviewed all of the work previously performed.
Dr. Collins’ conclusions as to the cause and manner of death,
although consistent with those reached by Dr. Preston, were
reached independently, after a thorough review of the
evidence. Accordingly, there was no basis to object to this
testimony. See Commonwealth v. Thomas, 282 A.2d
693 (Pa. 1971)[.]

PCRA Court Opinion, 8/11/17, at 6. We agree.

This Court confronted a similar factual circumstance in Commonwealth

v. Brown, 139 A.3d 208 (Pa. Super. 2016). There, a panel of this Court first

considered “whether an autopsy report is testimonial for purposes of the

Confrontation Clause.” Brown, 139 A.3d at 210. “After careful

consideration,” the panel held that “the autopsy report in this case was

testimonial and the trial court erred in admitting the autopsy report.” Id. The

-9-
J-S36013-18

Brown panel further held that the “trial court also improperly admitted certain

testimony relating to the opinions expressed in the autopsy report.” Brown,

139 A3d at 210. Nevertheless, the Brown panel affirmed Brown’s judgment

of sentence, because the “trial court properly admitted expert testimony

expressing independent conclusions based on the autopsy report[,]” and

concluded the improper admission of the improper evidence was harmless

error. Id.

In reaching this conclusion, the Brown panel summarized:

We hold that an autopsy report is testimonial when the
death was sudden, violent, or suspicious in nature, or was
the result of other than natural causes. Because [the
victim’s] death was sudden, violent, and the result of other
than natural causes, the autopsy report in this case was
testimonial and the trial court erred by admitting the
autopsy report and Dr. Chu’s reference to the opinions
expressed by Dr. Osborne in the autopsy report.
Nonetheless, Dr. Chu’s independent expert testimony
regarding the cause of [the victim’s] death was admissible
and sufficient to prove [the victim’s] cause of death beyond
a reasonable doubt. Thus, the Confrontation Clause
violation was harmless error.

Brown, 139 A.2d at 220.

In affirming this Court’s decision, our Supreme Court unanimously

agreed that autopsy report was testimonial, and that the admission of it

without accompany testimony from its author violated Brown’s rights under

the Confrontation Clause. See Commonwealth v. Brown, 185 A.3d 316,

324-29 (Pa. 2018).

- 10 -
J-S36013-18

Further, all of the Justices agreed that its admission in Brown’s case was

harmless error, albeit for different reasons. Justice Dougherty, joined by

Justices Baer and Todd, agreed with the Brown panel that Dr. Chu’s

independent expert testimony rendered the admission of the autopsy report

harmless. In a Concurring Opinion, joined by Chief Justice Saylor and Justice

Wecht, Justice Donahue disagreed; based on her review of the record, Dr.

Chu’s testimony could not be separated from the conclusions reached by the

autopsy’s author. She nevertheless found that any error was harmless

because Pennsylvania precedent establishes that “medical testimony is not

required to establish causation in a murder prosecution.” Brown, 185 A.3d

at 340 (citation omitted) (Donohue, J., concurring). According to Justice

Donahue, even in the absence of the autopsy report and Dr. Chu’s testimony,

“there was competent evidence presented at trial to a jury to justifiably

conclude, beyond a reasonable doubt, that the victim died as a result of the

gunshot wounds.” Id. In a separate Concurring Opinion, Justice Mundy

opined that any error that occurred was harmless “only because the autopsy

report and its accompanying testimony did not affect the outcome of Brown’s

trial in light of other non-expert witness testimony as to the cause and manner

of [the victim’s] death.” Brown, 185 A.3d at 342 (Mundy, J., concurring).

Here, the PCRA court concluded that Dr. Collins reached his own

independent conclusions about the cause and manner of the victim’s death.

We agree. Moreover, even if this was incorrect, the admission of such expert

medical testimony was nonetheless harmless. Our review of the record

- 11 -
J-S36013-18

establishes that the non-expert testimony of the various Commonwealth

witnesses who saw the shooting and the condition of the victim immediately

thereafter, gave the trial court, as fact-finder, sufficient evidence to determine

the cause and manner of the victims’ death beyond a reasonable doubt. See

Amoop, supra, unpublished memorandum at 5-7. Thus, trial counsel cannot

be deemed ineffective for failing to pursue this meritless claim. Loner, supra.

In his next claim, Amoop asserts that trial counsel was ineffective for

failing to ensure an alleged exculpatory statement by an eyewitness who died

prior to trial was admitted into evidence. Amoop concedes that the trial court

denied his counsel’s attempt to introduce the hearsay statement because it

did not fit within the “excited utterance” exception. Amoop’s Brief at 27.

Nevertheless, Amoop contends that trial counsel “abandoned him when he

gave up on its admission after the denial by [the] trial court,” because “trial

counsel never once argued that the evidence was exculpatory or that it

showed that the crime was committed by someone else.” Id. at 30.

It is well settled that the admissibility of evidence is a matter left to the

sound discretion of the trial court and may be reversed only upon a showing

that the court abused that discretion. Commonwealth v. Shelton, 170 A.3d

549, 552 (Pa. Super. 2017). Here, the trial court sustained the

Commonwealth’s hearsay objection because it determined that the statement

at issue lacked “the necessary indicia of reliability.” PCRA Court Opinion,

8/11/17, at 6. Trial counsel cannot be deemed ineffective because his attempt

- 12 -
J-S36013-18

to introduce the statement was unsuccessful. Buksa, supra. Further we

note that, although Amoop takes issue with the trial court’s application of the

“excited utterance” exception in his brief, he did not raise the issue in his

direct appeal. Thus, this claim is waived and, therefore, does not entitle

Amoop to relief. See 42 Pa.C.S.A. § 9544(b).

In his last claim of ineffective assistance of counsel, Amoop claims that

trial counsel was ineffective “for failing to investigate the medical and forensic

evidence, consult with and retain experts and present expert testimony or

properly cross-examine the Commonwealth’s expert[.]” Amoop’s Brief at 16

(excess capitalization omitted).

Although Amoop raised this claim in his Rule 1925(b) statement, the

PCRA Court did not address it in its Rule 1925(a) opinion. The Commonwealth

contends that the issue is waived because Amoop failed to raise it in his

original or amended pro se PCRA petitions. See Commonwealth’s Brief at 13

n.2. Although our review of the record reveals that Amoop did make reference

to such claim in both of his petitions, the manner in which he did so renders

the claim without merit.

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).

- 13 -
J-S36013-18

Amoop made no such proffer. Although within his brief, he discusses his

disagreement with the ballistics and other evidence presented by the

Commonwealth, he proffers no evidence that a different ballistics expert would

support his conclusions.2 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.” Commonwealth v.

Clark, 961 A.2d 80, 94 (Pa. 2008). Thus, Amoop’s final claim of

ineffectiveness fails.

In his final issue, Amoop argues that the PCRA Court erred in denying

his after-discovered evidence claim, in the form of an affidavit, from Jose

Lopez, a fellow inmate. According to Mr. Lopez’s affidavit, McMoore told Lopez

that he actually committed the murders, and that Amoop was not present.

A petitioner is eligible for relief under the PCRA if he or she can establish

the “unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the

trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). This Court has

explained the test to be applied to such a claim as follows:

To obtain relief based on after-discovered evidence, an
appellant must demonstrate that the evidence: (1) could
____________________________________________

2 As noted above, the PCRA court granted Amoop $1,000 dollars to hire a
private investigator. There is no indication in the record that Amoop used
these funds to hire his own expert.

- 14 -
J-S36013-18

not have been obtained prior to the conclusion of trial by the
exercise of reasonable due diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to
impeach the credibility of a witness; and (4) would likely
result in a different verdict if a new trial were granted.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (citation

omitted). “The test is conjunctive; the [petitioner] must show by a

preponderance of the evidence that each of these factors has been met in

order for a new trial to be warranted.” Id. Moreover, “when reviewing the

decision to grant or deny a new trial on the basis of after-discovered evidence,

an appellate court is to determine whether the PCRA court committed an

abuse of discretion or error of law that controlled the outcome of the case.”

Id.

Here, the PCRA court explained why, having acted as fact-finder at

Amoop’s bench trial, Amoop’s proffered affidavit “would not likely have

resulted in a different verdict if a new trial were granted.” Foreman, supra.

It stated:

In a brief affidavit Mr. Lopez stated that on November 18,
2013, [McMoore] told Mr. Lopez McMoore committed the
killings and gave [Amoop], “All the credit for it.” We
emphasize that this Court sat as fact finder. As stated
above, McMoore’s testimony was corroborated by the other
evidence in the case, made sense and was credible. Even if
this Court heard evidence of an alleged recantation, six
years after the killing, the verdict would not have changed.
Accordingly, this Claim, too is baseless.

PCRA Court Opinion, 8/11/17, at 6.

- 15 -
J-S36013-18

In essence, the PCRA court did not find Lopez’s proffered affidavit

credible. When considering alleged after-discovered evidence, such credibility

considerations are properly part of the determination of the integrity of the

proffered evidence, and, therefore, whether the proposed evidence would

have resulted in a different verdict. Commonwealth v. Padillas, 997 A.2d

356, 363 (Pa. Super. 2010). Here, given that the PCRA court sat as the

original fact finder, 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). Thus, Amoop’s claim is meritless.

In sum, because all of Amoop’s ineffectiveness claims are meritless, and

the PCRA court properly rejected Amoop’s alleged after-discovered evidence,

we affirm its order denying him post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/18/18

- 16 -