J-S29012-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN C. EARLE :
:
Appellant : No. 2285 EDA 2017
Appeal from the PCRA Order July 14, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001676-2010
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: Filed: August 13, 2020
Appellant, Kevin Earle, appeals from the order of the Court of Common
Pleas of Philadelphia County dismissing his petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546. We affirm.
On the morning of January 15, 2010, Agnes Croom and her 16 year-old
granddaughter, Kiana Smallwood, were getting into their parked car when an
unknown man approached them. The man spoke with Croom and told her that
there was gas leaking from the rear of the car. As Croom looked under the
car, the man pulled out a gun and pointed it at Croom’s face. He stole Croom’s
purse and fled.
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* Retired Senior Judge assigned to the Superior Court.
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Smallwood called the police and eventually she and Croom went to the
police station. At the station, Detective Timothy Veal interviewed Smallwood
and Detective Adam McGuigan interviewed Croom. Both Croom and
Smallwood were shown photographs of possible suspects based on their
description of the assailant, but neither were able to make a positive
identification of the man who had robbed Croom.
One week after the robbery, Croom’s son suggested to Croom that
Appellant, whom Croom did not know, may have been the robber. Croom
relayed this information to Detective McGuigan. The detective compiled a
photo array, which included a photograph of Appellant. Detective McGuigan
showed the photo array to Croom, while Detective Veal showed the array to
Smallwood. Both Croom and Smallwood positively identified Appellant as the
robber from the photo array.
Appellant was arrested and charged with multiple offenses, including
robbery. Croom once again positively identified Appellant as the robber at
Appellant’s preliminary hearing and then again at Appellant’s jury trial, stating
that she was “100 percent” that it had been Appellant who had robbed her.
N.T. Trial, 8/9/2011, at 73. Smallwood likewise identified Appellant as the
robber at Appellant’s trial. See id. at 101. Detective McGuigan also testified
at Appellant’s trial, explaining to the jury that he had generated the photo
array from which Croom and Smallwood identified Appellant using photos with
men who all had similar characteristics. See id. at 155.
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Following trial, the jury found Appellant guilty of, inter alia, robbery,
carrying a firearm and possession of an instrument of crime. The trial court
sentenced him to an aggregate term of imprisonment of 17 ½ to 35 years.
This Court affirmed Appellant’s judgment of sentence, and our Supreme Court
denied his petition for allowance of appeal.
On August 22, 2014, Appellant filed a pro se PCRA petition. Counsel was
appointed and filed an amended petition. The Commonwealth filed a motion
to dismiss the petition, and the PCRA court issued a notice of its intent to
dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. The PCRA
court granted the Commonwealth‘s motion to dismiss Appellant’s PCRA
petition on July 14, 2017. Appellant filed a timely notice of appeal.
In his appellate brief, Appellant raises the following singular issue in his
“summary of the question involved” section:
Where counsel failed to object to or move to suppress a photo
identification under circumstances where legitimate issues were
raised as to its fairness, should an evidentiary hearing be held to
determine whether PCRA relief is warranted?
Appellant’s Brief at 8. This claim does not warrant any relief.
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.
Further, a petitioner is not entitled to a PCRA hearing as a matter
of right[.] [T]he PCRA court can decline to hold a hearing if there
is no genuine issue concerning any material fact, the petitioner is
not entitled to PCRA relief, and no purpose could be served by any
further proceedings.
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Commonwealth v. Shaw, 217 A.3d 265, 269 (Pa. Super. 2019) (internal
citations omitted).
Appellant’s sole claim on appeal raises a claim of ineffectiveness of trial
counsel. The law presumes that counsel was effective. See Commonwealth
v. Brooks, 839 A.2d 245, 248 (Pa. 2003). In order to overcome that
presumption and prevail on a claim of ineffectiveness, Appellant must
establish that: (1) the underlying claim has arguable merit; (2) counsel had
no reasonable basis for his conduct; and (3) he was prejudiced by counsel’s
ineffectiveness, i.e. there is a reasonable probability that because of the act
or omission in question, the outcome of the proceeding would have been
different. See id.
Appellant argues, in effect, that the PCRA court erred by not holding a
hearing on his claim that trial counsel was ineffective for failing to file a motion
to suppress Croom’s and Smallwood’s identification of Appellant. According to
Appellant, the identifications were based on a tainted and unduly suggestive
photo array. This claim fails for several reasons.
First, Appellant’s brief is not sufficiently developed and does not comply
with the Rules of Appellate Procedure. While Appellant cites general law
regarding claims of ineffective assistance of counsel, he does not attempt to
apply the three prongs of the ineffectiveness test to the claim he raises here.
Moreover, in support of his claim, Appellant offers three undeveloped
allegations in his statement of the case section of his brief, but does not even
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reassert those allegations in his argument section. Appellant also fails to
explain these allegations in any meaningful way or offer any kind of legal
analysis to support those bald allegations. As this Court has made clear:
The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and
analysis of pertinent authority. Appellate arguments which fail to
adhere to these rules may be considered waived, and arguments
which are not appropriately developed are waived.
Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014) (internal
citations omitted); see also Pa.R.A.P. 2119(a) (stating that the argument
section of the brief “shall have at the head of each part” of the argument “the
particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent”); Commonwealth v. Johnson, 985
A.2d 915, 924 (Pa. 2009) (stating that “where an appellate brief fails to
provide any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that claim
is waived”).
Given the deficiencies in Appellant’s brief, we are constrained to find
that he has waived his claim that counsel was ineffective for failing to pursue
a motion to suppress Croom’s and Smallwood’s identification on the basis of
a tainted photo array. Even if we were to overlook waiver, Appellant has by
no means established that any of the three assertions he offers in support of
his claim have arguable merit.
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Appellant first summarily states that “the four corners of the photos
themselves led to the selection of [ ] Appellant.” Appellant’s Brief at 9.
Although he does not attempt in any way to explain how he believes this to
be so, we note that in discussing the photo array, the PCRA court specifically
found that:
Detectives McGuigan and Veal testified as to standard procedures
of photo assembly, preparation, and presentation, all of which
both detectives testif[ied] to have followed precisely when
compiling the photo array they presented to [Croom] and
[Smallwood], who, without hesitation, selected [ ] Appellant with
no police encouragement. Each of the men included in the photo
array shared similar characteristics in accordance with standard
identification procedure. Race, hair, eye color, height, and weight,
among other characteristics, were common among the men
included.
PCRA Court Opinion, 7/30/19, at 6-7.
Appellant does not address, much less challenge, this finding, and we
fail to see any error on the part of the trial court in this regard. See
Commonwealth v. Fisher, 769 A.2d 1116, 1126 (Pa. 2001) (stating that a
pre-trial photo array identification procedure is not unduly suggestive as long
as the suspect’s photo does not stand out from the others and as long as the
people depicted in the array have similar facial characteristics).
Next, Appellant asserts that the photo array was tainted because the
inclusion of his photo in the array was based on the unreliable hearsay
received by Croom that Appellant may have been involved in the robbery. The
PCRA court found, however, that the statement to Croom suggesting that
Appellant may have been involved in the robbery was not hearsay as it had
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been introduced as an “explanation as to why [the Detectives] included
Appellant’s photo in the photo array rather than concrete evidence as to
Appellant’s involvement in the robbery in question.” PCRA Court Opinion,
7/30/19, at 7, citing Pa.R.E. 801(c) (defining hearsay as a statement, other
than the one made by the declarant while testifying at the trial or hearing,
offered into evidence to prove the truth of the matter asserted). Again,
Appellant does not acknowledge this conclusion or argue how the PCRA court
erred in reaching it, and we do not discern any error on the part of the PCRA
court. See Commonwealth v. Rega, 933 A.2d 997, 1017 (Pa. 2007) (finding
that a statement is not considered hearsay if it is offered to explain the course
of conduct of the police during an investigation).
Finally, Appellant suggests that the photo array was tainted because it
was compiled by Detective Derrick Jacobs, who, according to Appellant, bore
personal animosity against him because Appellant had been found not guilty
in another case in which Detective Jacobs had been involved. Although
Appellant does not make any argument beyond this bald assertion to support
his claim, the PCRA court found Appellant’s assertion to be factually
inaccurate. As the PCRA court noted, the record reflects that it was Detectives
McGuigan and Veal - not Detective Jacobs - who were involved in the
compilation and presentation of the photo array shown to Croom and
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Smallwood.1 Appellant does not address the trial court’s determination that
his claim is not supported by the record, and we see no error in that
determination.
Based on all of the above, we conclude that Appellant has completely
failed to establish that his boilerplate claim that the photo array was unduly
suggestive, even if not waived, has arguable merit. Moreover, as the PCRA
court found, Appellant has also failed to show any prejudice given that both
Croom and Smallwood, in addition to identifying Appellant in the photo array,
positively identified Appellant as the robber at trial. As such, Appellant has not
shown that he was entitled to a hearing regarding his claim that trial counsel
was ineffective for failing to pursue a motion to suppress Croom’s and
Smallwood’s identification on the basis of the photo array. See
Commonwealth v. D’Amato, 856 A.2d 806, 820 (Pa. 2004) (stating that “to
obtain reversal of a PCRA court’s decision to dismiss a petition without a
hearing, an appellant must show that he raised a genuine issue of material
fact which, if resolved in his favor, would have entitled him to relief, or that
the court otherwise abused its discretion in denying a hearing”);
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (stating that
if courts can determine without an evidentiary hearing that one of the prongs
____________________________________________
1 Although Detective Jacobs was involved in the investigation in the instant
case, his involvement was limited to being one of the detectives who executed
the search warrant of Appellant’s residence.
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of the ineffectiveness test cannot be met, then there is no purpose in holding
a hearing).
Appellant raises a second claim of counsel’s ineffectiveness. The entirety
of that claim in his brief’s argument section is that trial counsel was ineffective
for:
Fail[ing] to object to, request that the testimony be stricken
or request curative instructions relating to the testimony of
[Appellant’s] supposed intimidation of witnesses in an
unrelated criminal case, the testimony was improper for
multiple reasons. It was not responsive to the question.
Since it was the detective’s opinion about what someone
else thought, it was at best impermissible hearsay and at
worst testimony without any basis whatsoever. Some
action by counsel was required.
Appellant’s Brief at 15.
In the first place, this claim is not fairly encompassed by Appellant’s
statement of the question involved, and it is waived for that reason alone. See
Pa. R.A.P. 2116(a) (stating that “no question will be considered unless it is
stated in the statement of questions involved or is fairly suggested thereby”).
However, we note that Appellant also does not make any reference in his
argument section to the place in the record where the testimony at issue
appears, as required by Pa.R.A.P. 2119(c). In addition, even a quick reading
of the quoted claim above reveals that it has simply not been developed in
any meaningful way. The claim is waived for that reason as well. See
Ramsden, 94 A.3d at 1088; Johnson, 985 A.2d at 924.
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Even if not waived, the claim is devoid of merit. Appellant only indicates
which detective and which testimony this claim is referring to in his brief’s
statement of the case section, where he cites to the following exchange
between defense counsel and Detective Jacobs:
‘The case you were initially involved in that you testified before,
you said that you knew my client in that case in February 2009.
You know he was found not guilty of all charges in that case,
right?’ (N.T. 8/10/11 p. 68). In … [his] answer [,] Detective Jacobs
stated in part: ‘[The victim in that case], I later learned, was
intimidated by [Appellant] and that’s why she recanted her
statement that she gave me.’ (N.T. 8/10/11 p. 70).
Appellant’s Brief at 9-10.
The PCRA court found that defense counsel was not ineffective for failing
to object to or request a curative instruction in connection with Detective
Jacob’s testimony because it was defense counsel who strategically sought the
admission of testimony from Detective Jacobs demonstrating his involvement
in an earlier investigation of a prior robbery, for which Appellant had been
charged and ultimately found not guilty. As the Commonwealth explains in its
brief:
Counsel wanted to ask the detective about the prior case to
attempt to show that Detective Jacobs allegedly had personal
animosity toward him which purportedly influenced his actions in
the instant case. The court colloquied [Appellant] on his decision
to pursue a line of questioning that would introduce information
about this prior criminal charge, and he agreed on the record with
counsel’s trial strategy (N.T. 8/10/11, 39-44).
Commonwealth’s Brief at 11.
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Appellant does not challenge the PCRA court’s ruling in this regard. In
any event, Appellant has not asserted, much less shown, how he was
prejudiced by counsel’s failure to object to or request a cautionary instruction
regarding the testimony he proffered in a case where both victims consistently
identified Appellant as the man who robbed them at gunpoint, including at
Appellant’s trial. Appellant has simply not shown that counsel was ineffective
or that he was entitled to a hearing on this claim of ineffectiveness. See
Jones, 942 A.2d at 906.
Appellant has failed to demonstrate that the PCRA court erred by not
holding a hearing before dismissing his PCRA petition. While Appellant
concludes his brief with a string of cases that remanded for an evidentiary
hearing where trial counsel failed to call witnesses, he fails to explain how
these cases are relevant to his appeal, which includes no such claim. No relief
is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/20
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