Com. v. Peterson, R.

J-A25045-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RASHAUN PETERSON, :
:
Appellant. : No. 61 EDA 2018

Appeal from the PCRA Order, December 21, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0008630-2014.

BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 18, 2019

Rashaun Peterson 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.

On May 18, 2015, a jury convicted Peterson of first-degree murder and

related charges involving a January 13, 2014 incident that resulted in the

shooting death of Acquil Bickerstaff. The pertinent facts and procedural

history have been summarized as follows:

Three witnesses, Rashaad Lewis, Michael James, and
Madrigal Pitman gave statements to police regarding the
shooting. Lewis told detectives that he saw [Peterson] and
Bickerstaff arguing when [Peterson] retrieved a firearm
from his grandmother’s house nearby and returned to argue
some more before shooting Bickerstaff four times.
According to Lewis, [Peterson] began walking away but
turned and shot Bickerstaff again as he lay on the ground.
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Lewis identified [Peterson] from photographs. James gave
a similar statement to police and identified [Peterson] from
a photo array. Pitman told police that she was with
Bickerstaff, [Peterson], and Aaron Peterson (Peterson’s
cousin) moments before Bickerstaff was shot. Pitman told
police that the three men went around the corner and she
heard four gunshots, and then several more shots after a
brief pause. While fleeing the scene, Pitman heard Aaron
Peterson ask [Peterson] why he shot the victim.

In addition, police recovered video surveillance from
Pretty Mary’s convenience store. [Peterson] and Bickerstaff
are seen walking out of the camera’s view toward the corner
of Chelten Avenue and Norwood Street. Aaron Peterson is
seen walking in that same direction thirty seconds later.
About one minute later, the surveillance video shows two
males, with their backs to the camera, fleeing the scene and
looking over their shoulders.

On April 30, 2014, police arrested [Peterson]. The
Commonwealth charged him with the aforementioned
crimes. On May 11, 2015, a jury trial commenced. The
Commonwealth presented the evidence as recited above.
Further, at trial, Lewis was questioned regarding his
statements to police. Originally, Lewis told police that he
could not identify the shooter, but later identified [Peterson]
in a subsequent statement to police; he claimed he initially
feared retaliation. Lewis also testified at trial that he did not
remember several of his statements to police and claimed
that several of his signatures on his statement “looked
funny.” The Commonwealth also presented evidence that
approximately one month prior to the murder, on December
17, 2013, Officer Jason Tomon observed a box of Smith and
Wesson .40 caliber ammunition next to the driver’s seat of
a vehicle [Peterson] was driving. In investigating the
murder at issue, police recovered seven .40-caliber Smith
and Wesson casings from the ground at the scene.

Commonwealth v. Peterson, 151 A.3d 1135 (Pa. Super. 2016),

unpublished memorandum at 2-3.

Following his convictions, the trial court sentenced Peterson to an

aggregate term of life in prison. Peterson filed a direct appeal to this Court,

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and we affirmed his judgment of sentence on May 4, 2016. Peterson, supra.

Peterson did not seek further review.

Peterson filed a timely pro se PCRA petition on May 2, 2017. The PCRA

court appointed counsel, and PCRA counsel filed an amended petition on

September 14, 2017. On November 16, 2017, the PCRA court issued

Pa.R.Crim.P. 907 notice of its intention dismiss the amended petition without

a hearing. Peterson did not file a response. By Order entered December 2,

2017, the PCRA court dismissed the petition. This timely appeal followed. The

PCRA court did not require Pa.R.A.P. 1925 compliance.

Peterson raises the following issues on appeal:

I. Whether trial counsel was ineffective for failing to
object at trial and argue on direct appeal that the trial
court erred in admitting Officer Tomon’s testimony
regarding Peterson’s alleged possession of a box of
.40 caliber ammunition during a December 17, 2013
vehicle stop.

II. Whether trial counsel was ineffective for failing to
thoroughly cross-examine Officer Tomon regarding
his testimony of the December 17, 2013 vehicle stop.

III. Whether trial counsel was ineffective for failing to
motion for the disqualification of Juror Number 2.

See Peterson’s Brief at 3.

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

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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).

All of Peterson’s issues allege the ineffective assistance of trial counsel.

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).

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

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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).

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

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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).

Peterson’s first two claims of ineffectiveness involve the admission of

the trial testimony of Officer Jason Tomon. Because he challenges the trial

court’s evidentiary ruling, this ineffectiveness claim must be considered

subject to our deferential standard of review:

The admission of evidence is solely within the discretion of
the trial court, and a trial court’s evidentiary rulings will be
reversed on appeal only upon an abuse of that discretion.
An abuse of discretion will not be found based on a mere
error of judgment, but rather occurs where the court has
reached a conclusion that overrides or misapplies the law,
or where the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or
ill-will.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. Super. 2015)

(citations omitted).

Generally, all relevant evidence is admissible. Pa.R.E. 402. Evidence is

relevant if “it has any tendency to make a fact [of consequence] more or less

probable than it would be without the evidence.” Pa.R.E. 401. Thus, “[t]he

threshold for relevance is low due to the liberal ‘any tendency’ prerequisite.”

Brady v. Urbas, 111 A.3d 1155, 1162 (Pa. 2015) (emphasis in original).

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Relevant evidence may be excluded, however, if its probative value is

outweighed by a danger of unfair prejudice. Pa.R.E. 403. “Evidence is not

unfairly prejudicial simply because it is harmful to the defendant’s case.

Rather, exclusion of evidence on this ground is limited to evidence so

prejudicial that it would inflame the jury to make a decision based upon

something other than the legal propositions relevant to the case.”

Commonwealth v. Foley, 38 A.3d 882, 891 (Pa. Super. 2012) (citations

omitted).

As part of its evidence at trial, the Commonwealth sought to present the

testimony of Officer Tomon, who approximately one month prior to the

shooting incident, conducted a vehicle stop of Peterson. At trial, Officer

Tomon testified that, after Peterson exited the driver’s seat of the vehicle, he

observed a box of .40 caliber Smith & Wesson bullets between the vehicle’s

front seats. Prior to trial, trial counsel had made an oral motion in limine to

exclude testimony regarding the ammunition because no gun was found.

According to trial counsel, testimony regarding the observation of the same

ammunition a month earlier during a traffic stop had only a “tenuous link” to

the same type of bullet casings found at the crime scene. N.T., 3/2/15, at

205. The trial court disagreed, and permitted the testimony at trial.

The PCRA court, who also presided at Peterson’s trial, explained its

reasoning as follows:

At trial, the ammunition evidence was admitted under
the “similar weapons exception.” See Commonwealth v.
Christine, 125 A.3d 394 (Pa. 2015). Under this exception,

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a weapon not specifically linked to the crime may be
admitted into evidence if the Commonwealth “lay[s] a
foundation that would justify an inference by the finder of
fact of the likelihood that the weapon was used in the
commission of the crime.” Christine, 125 A.3d at 396 n.4
(citing Commonwealth v. Lee, 662 A.2d 645, 652 (Pa.
1995) (citation omitted)). Any uncertainty that the weapon
is the actual weapon used in the crime “goes to the weight
of such evidence,” rather than its admissibility.” Christine,
125 A.3d at 400 (citation omitted).

Although the item at issue is not a weapon, but
ammunition, the same principle for the “similar weapon
exception” applies. In the case at bar, [Peterson] had
access to ammunition—just one month before the murder—
of the same caliber and manufacture as used to kill Acquil
Bickerstaff. This evidence was properly admitted to show
that [Peterson] likely possessed a gun capable of firing the
ammunition used to commit the crime. Because this Court
properly admitted the ammunition into evidence,
[Peterson’s] underlying claim has no arguable merit. As
such, no relief is due.

PCRA Court Opinion, 12/21/17, at 6-7 (footnote omitted). Our review of the

record and relevant case law supports the PCRA court’s conclusion.

In arguing to the contrary, Peterson asserts that “there is no paperwork

documenting the alleged discovery of these bullets; there were three other

people besides [Peterson] in the vehicle where the bullets were found” and

“there was no evidence presented that the .40 caliber Smith & Wesson bullets

observed by Officer Tomon were Remington or PMC bullets, the brand

recovered at the crime scene.” Peterson’s Brief at 10. Peterson further

argues that trial counsel had no reasonable basis for failing to raise this issue

on appeal because it “was not relevant, inadmissible, and highly prejudicial.”

In order for the testimony regarding the .40 caliber bullets to be relevant, the

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jury would have to make the inappropriate inference that the bullets observed

by Officer Tomon were the bullets used in the instant case.” Id. at 10-11.

According to Peterson, “[t]here was no evidence presented that the bullets

belonged to [him].” Peterson’s Brief at 11. Finally, Peterson argues he

suffered prejudice because “[t]his evidence was admitted solely for the

purposes of allowing the jury to impermissibly infer that since [he] was once

in the presence of .40 caliber Smith & Wesson bullets, a generic bullet, he

must have been the shooter in this case.” Id. We disagree.

Initially, although Peterson initially criticizes the PCRA court for relying

on this Court’s unpublished memorandum in Commonwealth v. Bradshear,

2016 WL 7495120 (Pa. Super. 2016), to support its admission of testimony

regarding the ammunition, the cases cited therein, as well as other

Pennsylvania precedent, establish that Peterson’s ineffectiveness claim lacks

arguable merit. See, e.g., Commonwealth v. Owens, 929 A.2d 1187, 1191

(Pa. Super. 2007) (explaining that, although handguns involved in the

shooting were never recovered, handgun parts and ammunition were

“relevant as tending to prove that the defendants had weapons similar to the

one used in the perpetration of the crime”).1

____________________________________________

1 Although our Supreme Court in Christine criticized our reiteration of the
“similar weapons exception” because we did not include language “referring
to the need for a foundation justifying that the weapon was used in the crime,”
Christine, 125 A.3d at 400 n.10, the Court did not overrule Owens’ holding
that the gun parts and ammunition were admissible.

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Moreover, even if this issue had arguable merit, and trial counsel had

no reasonable basis for failing to raise the claim on appeal, we conclude that,

given the overwhelming evidence of Peterson’s guilt, any error in admitting

Officer Tomon’s testimony was harmless. Peterson’s murder conviction was

supported by the testimony of multiple eyewitnesses who knew both him and

the victim, and saw Peterson shoot the victim after demanding that he step

out of the reach of a nearby surveillance camera. See Commonwealth v.

Stokes, 78 A.3d 644, 656 (Pa. Super. 2013) (holding any error in admitting

evidence under similar weapons exception was harmless due to overwhelming

evidence of guilt, including testimony of several eyewitnesses who identified

the defendant, and testified he shot the victim at close range). Thus,

Peterson’s first ineffectiveness claim fails.

In his second claim of ineffectiveness, Peterson argues that trial counsel

was ineffective for failing to thoroughly cross-examine Officer Tomon

regarding the December 17, 2013 traffic stop. Peterson argues that, although

prior to trial, trial counsel indicated that another passenger in the stopped

vehicle possessed a receipt for the ammunition, trial counsel failed to cross-

examine Officer Tomon regarding this fact. He further argues that, “[m]ost

importantly, counsel neglected to cross-examine Officer Tomon regarding his

failure to memorialize in the 75-48 that there were .40 caliber Smith & Wesson

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bullets in the vehicle.” Peterson’s Brief at 12.2 Peterson asserts that

“[e]ffectively cross-examining Officer Tomon would have highlighted to the

jury that not only was the search of the vehicle [he] was in illegal, but that

the .40 caliber Smith & Wesson bullets, an incredibly common caliber bullet,

could have belonged to any of the other passengers in that vehicle, not

necessarily [Peterson].” Peterson’s Brief at 12. Finally, Peterson claims that

he was prejudiced by this lack of cross-examination because “the only

evidence tending to show that [he] was the shooter in the instant case came

from the inconsistent testimony of the Commonwealth witnesses[.]”

Peterson’s Brief at 12-13.

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

Other than trial counsel’s representation at the motion
[in limine] hearing, there is no evidence of any receipt. At
the same motion hearing, the Commonwealth stated that it
had no knowledge of any receipt. N.T., 3/02/2015 at 205-
08. Officer Tomon also did not reference it in his 75-48.
Moreover, [Peterson] failed to attach a copy of the receipt
to his petition. Because there is no evidence of any receipt,
[Peterson] fails to meet his burden in show basis for trial
counsel to cross-examine Officer Tomon about the receipt.
See Commonwealth v. Smith, 121 A.3d 1049, 1055 (Pa.
Super. 2015) (throughout the PCRA proceedings the
petitioner bears the burden to plead and prove his claims).
Accordingly, no relief is warranted.

[Peterson] also claims that trial counsel failed to cross-
examine the officer on why he did not memorialize in the
75-48 that there was Smith & Wesson .40 caliber
ammunition in the van. Although trial counsel did not cross-
____________________________________________

2A 75-48A refers to the Philadelphia Police Department’s Vehicle or Pedestrian
Investigation Report.

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examine Officer Tomon specifically on why he did not
memorialize the ammunition on his 75-48, trial counsel did
review the 75-48 with the officer, and thoroughly
questioned him on the number of occupants in the vehicle,
and their names, suggesting to the jury that one of the other
van occupants could have owned the ammunition. N.T.,
5/13/2015, at 172-77. Irrespective of trial counsel’s
inaction, [Peterson] cannot show prejudice. There were
three independent witnesses to the murder—two of which
knew [Peterson] and the victim prior to the murder.

PCRA Court Opinion, 12/21/17, at 7-8 (footnote omitted).

Once again, our review of the record supports the PCRA court’s

conclusions. Initially, we note that Peterson provides no further argument to

support his claim of an illegal “search” so we will not consider it further. See

Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007) (holding that

undeveloped claims will not be considered on appeal). Additionally, we note

that even if a sales receipt for the ammunition was found on another occupant

of the vehicle, the issue is access to the ammunition not whether Peterson

owned it. Moreover, although PCRA counsel believes other questions should

have been asked upon-cross examination, a hindsight analysis does not

equate to a finding of ineffectiveness. Stewart, supra. Finally, the trial

testimony of the several eyewitnesses was only inconsistent in so far as one

witness contradicted his prior statements to police. Thus, Peterson’s second

claim of ineffective assistance of counsel fails.

In his third and final claim of ineffectiveness, Peterson asserts that trial

counsel was ineffective for failing to file a motion for disqualification of Juror

Number Two. It is well settled:

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The test for determining whether a prospective juror
should be disqualified is whether he is willing and able to
eliminate the influence of any scruples and render a verdict
according to the evidence, and this is to be determined on
the basis of answers to questions and demeanor. . . . It
must be determined whether any biases or prejudices can
be put aside on proper instruction of the court. . . . A
challenge for cause should be granted when the prospective
juror has such a close relationship, familial, financial, or
situational, with the parties, counsel, victims, or witnesses
that the court will presume a likelihood of prejudice by his
or her conduct or answers to questions. . . . The decision
on whether to disqualify is within the discretion of the trial
court and will not be reversed in the absence of a palpable
abuse of discretion. . . .

Commonwealth v. Weiss, 776 A.2d 958, 966 (citations and emphasis

omitted).

The PCRA court found this claim to be devoid of merit because there

was no reason for trial counsel to file such a motion. The court explained:

During the trial, Juror Number Two recognized a person
from church sitting in the gallery on [Peterson’s] side of the
courtroom. [It was later determined that this person was
Peterson’s aunt.] After the juror informed this Court’s staff,
this Court held an on-the-record discussion with the juror.
During this discussion, in which [trial] counsel had an
opportunity to ask questions, Juror Number Two stated that
the person he had recognized from the gallery was not a
friend. N.T., 5/11/2015, at 116. This Court asked the juror
if his acquaintance with this person would have any effect
on his deliberations in this case, to which the juror
responded no. The juror assured this Court that he could
be fair to both sides. The juror further stated that he had
not told anyone on the jury that he recognized the person.
This Court found the juror’s responses to be sincere and
found no reason to disqualify him.

Trial counsel stated that he had no objection, and offered
a reasonable explanation why. He pointed out that it was
not uncommon for jurors to know people or witnesses at

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trial. He further stated that he had spoken with the person
in the gallery, that that the person agreed to leave and
would no longer attend the trial. Id. at 122-23. For the
foregoing reasons, no relief is due.

PCRA Court Opinion, 12/21/17, at 8 (footnote omitted).

Once again, our review of the record supports the PCRA court’s

conclusions. Peterson’s arguments to the contrary are without merit. Without

citation to the record, Peterson makes the bare assertion that “[t]estimony

shows that this juror was noticeably uncomfortable having recognized [his]

aunt, whom was sitting on [his] side of the courtroom.” Peterson’s Brief at

14. Peterson further argues that he was prejudiced because “there is [a]

reasonable probability that the court would have excused Juror Number 2 had

trial counsel made the argument that the juror’s demeanor showed that he

could not be fair and impartial, despite any representations to the contrary.”

Id. at 15. We disagree.

“It was the trial court that observed the juror’s demeanor and heard his

responses; it was, therefore, the trial court that was in the best position to

assess the credibility of the juror’s statements that he could be fair.” Weiss,

776 A.2d at 966. In essence, Peterson inappropriately asks this Court to

reweigh the trial court’s credibility determination. This we cannot do. See

id. (explaining that this Court may properly refuse to excuse a juror for cause

when the trial judge believed that the juror would be fair and impartial. Thus,

Peterson’s third and final ineffective assistance of counsel claim fails.

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In sum, because all of Peterson’s ineffective assistance of counsel claims

lack arguable merit, we affirm the PCRA court’s order denying Peterson post-

conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/18/19

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