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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DARRYL MINNIS
Appellant No. 3062 EDA 2015
Appeal from the PCRA Order September 22, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005914-2007
BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED OCTOBER 28, 2016
Darryl Minnis appeals from the order entered September 22, 2015,
dismissing his petition for relief filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On December 4, 2006, Appellant and two accomplices robbed Timothy
Williams at gunpoint. See PCRA Court Opinion (PCO), 2/5/16, at 2-3.
Appellant was arrested and charged with robbery and related offenses.1
A jury trial commenced June 11, 2008, and concluded June 12, 2008.
Following deliberations, the jury found Appellant guilty of robbery,
conspiracy, firearms not to be carried without a license, and possessing an
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1
See 18 Pa.C.S. §§ 3701(a)(1)(ii); 903(a)(1); 6105(a)(1); 6106(a)(1);
3921; 3925; 6108; 907; 2701; 2705, respectively.
*
Former Justice specially assigned to the Superior Court.
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instrument of crime.2 On August 5, 2008, the court sentenced Appellant to
six to twelve years’ incarceration followed by three years of probation.
On July 29, 2011, Appellant timely appealed and filed a court-ordered
Pa.R.A.P. 1925(b) statement.3 The trial court issued a responsive opinion.
On October 26, 2012, this Court affirmed the judgment of sentence,
and the Supreme Court of Pennsylvania denied allowance of appeal. See
Commonwealth v. Minnis, 62 A.3d 465 (Pa. Super. 2012) (unpublished
memorandum), appeal denied, 67 A.3d 795 (Pa. 2013).
On June 20, 2013, Appellant timely filed a pro se PCRA petition.4 On
March 2, 2015, Appellant filed a counseled amended petition, asserting
ineffective assistance of trial counsel on several grounds. On June 29, 2015,
the Commonwealth filed a motion to dismiss Appellant’s petition. After
issuing notice pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed
Appellant’s petition without a hearing on September 22, 2015. Appellant
timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The
PCRA court issued a responsive opinion.
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2
The remaining charges were nolle prossed.
3
Appellant’s timely first appeal was dismissed per curiam on March 23,
2009, for failure to file a brief. Appellant filed a counseled PCRA petition,
and on July 8, 2011, the PCRA court reinstated Appellant’s direct appeal
rights nunc pro tunc.
4
See Commonwealth v. Turner, 73 A.3d 1283, 1285 (Pa. Super. 2013)
(noting that when a petitioner’s direct appeal rights are reinstated nunc pro
tunc in his first PCRA petition, a subsequent PCRA petition will be considered
a first petition for timeliness purposes.)
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Appellant raises the following issues:
1. Whether the court erred in denying the Appellant’s PCRA
petition without an evidentiary hearing on the issues raised in
the amended PCRA petition regarding trial counsel’s
ineffectiveness.5
2. Whether the court erred in not granting relief on the PCRA
petition alleging counsel was ineffective.
Appellant’s Brief at 9.
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,
995 A.2d 1184, 1189 (Pa. Super. 2010)).
In this case, the PCRA court dismissed Appellant’s petition without a
hearing. See PCRA Court Order, 9/22/15 (citing in support Pa.R.Crim.P.
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5
Appellant’s claims, as enumerated in his amended petition and in his brief
before this Court, were as follows. Trial counsel was ineffective for: failing
to object to the Commonwealth’s closing argument; failing to object to the
sentence enhancement; failing to litigate a motion to suppress; and failing to
file a post-sentence motion that the verdict was against the weight of the
evidence. See Appellant’s Brief, at 16-24. In Appellant’s pro se petition, he
also raised the issue of counsel’s ineffectiveness for failure to give notice of
an alibi defense or request an alibi instruction, but PCRA counsel averred
that this issue was meritless. The PCRA court did not address this issue in
its opinion, and Appellant did not raise it in his 1925(b) statement. See
Amended PCRA Petition, at 17.
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907). There is no absolute right to an evidentiary hearing. See
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On
appeal, we examine the issues raised in light of the record “to determine
whether the PCRA court erred in concluding that there were no genuine
issues of material fact and denying relief without an evidentiary hearing.”
Springer, 961 A.2d at 1264.
We presume counsel is effective. Commonwealth v. Washington,
927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish
the ineffective assistance of counsel, a PCRA petitioner must prove, by a
preponderance of the evidence: “(1) the underlying legal issue has arguable
merit; (2) that counsel’s actions lacked an objective reasonable basis; and
(3) actual prejudice befell the petitioner from counsel’s act or omission.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations
omitted). “A petitioner establishes prejudice when he demonstrates that
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. A claim
will be denied if the petitioner fails to meet any one of these requirements.
Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)
(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
We first note that Appellant has waived two of the issues which were
raised in the amended PCRA petition: trial counsel’s ineffectiveness for 1)
failing to object to the Commonwealth’s closing argument and 2) for failing
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to litigate a motion to suppress the victim’s identification. The PCRA court
was unable to adequately review Appellant’s claims.
“If a Rule 1925(b) Statement is too vague, the trial judge may find
waiver and disregard any argument.” Commonwealth v. Reeves, 907
A.2d 1, 2 (Pa. Super. 2006) (citation omitted). Where the trial court must
guess the issues an Appellant is appealing, that is not enough for a
meaningful review; a concise statement too vague to allow the court to
identify the issues raised on appeal is the functional equivalent of no concise
statement at all. Id.
Regarding the first waived issue, Appellant identified in his PCRA
petition the specific testimony in the closing argument that he found
objectionable. However, in his 1925(b) statement, Appellant stated only
that trial counsel was ineffective for failing to object to the Commonwealth’s
closing argument. In its responsive opinion, the PCRA court noted that
Appellant had not identified a specific instance of alleged prosecutorial
misconduct and that it had reviewed the record and found no objectionable
remarks. PCO at 5. Now, in his brief, Appellant again identifies the
argument he found objectionable, namely the prosecutor asking jurors to
place themselves in the victim’s shoes. See Appellant’s Brief at 17-18.
Regarding the second waived issue, Appellant identified in his PCRA
petition the specific evidence he wished suppressed. However, in his
1925(b) statement, Appellant stated only that trial counsel was ineffective
for failing to litigate a motion to suppress. In its responsive opinion, the
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PCRA court noted that Appellant had not identified the evidence he wished to
have suppressed and its review of the record did not indicate any evidence
that should have been suppressed. PCO at 6. Now, in his brief, Appellant
again identifies the evidence he wished suppressed, namely, the witness’s
pretrial identification. See Appellant’s Brief at 20-21.
It is apparent that the statement was too vague to allow the trial court
to address the merits of Appellant’s arguments, and Appellant has waived
them for purposes of appeal. However, even if we were to address
Appellant’s claims on their merits, we would not afford relief.
In his first issue, Appellant identifies the prosecutor’s allegedly
inflammatory statements, namely, asking jurors to put themselves in the
victim’s situation.6 Appellant’s Brief at 17; see also Notes of Testimony
(N. T.), 6/12/08, at 38. Appellant claims that these remarks created
hostility towards him in the mind of the jurors such that they would not be
able to evaluate the evidence objectively. Appellant’s Brief at 18-19.
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6
In her closing, the prosecutor stated, “I would submit to you that all of you
put yourself in his situation and pretend maybe that if you were like me and
walk that dog around the corner and think of yourself and say, would you
recognize your neighbor if all of sudden somebody around the corner did
something to you?
“Maybe you wouldn’t know that neighbor’s height. Maybe you wouldn’t know
that neighbor’s weight, but if he jammed you up and assaulted you and you
went down to the police station, you’d say, look, I don’t know my neighbor’s
name, I don’t know who she is, but I know she lives around the corner from
me . . . she assaulted me in some fashion. That’s real life. That’s the real
world.” See N. T., 6/12/08, at 38.
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We note that while it is improper for a prosecutor to invoke sympathy
with a jury by asking the jurors to stand in the shoes of the victims, where
the remarks were of limited duration and were not part of a focused attempt
to appeal to the passions of the jury, they will not entitle the defendant to
relief. See Commonwealth v. Clark, 421 A.2d 374, 378-79 (Pa. Super.
1980), aff'd mem., 461 A.2d 794 (Pa. 1983). Further, a prosecutor may
respond to points made in a defendant’s closing argument. See
Commonwealth v . Chmiel, 889 A.2d 501, 543-44 (Pa. 2005).
In the instant case, a review of the record shows that the prosecutor’s
remarks were limited to an attempt to explain to jurors why the victim, who
was Appellant’s neighbor, might have had issues recognizing and identifying
Appellant. Further, trial counsel attacked the victim’s testimony in his own
closing, arguing it was unbelievable that Mr. Williams would not be able to
identify a neighbor. Consequently, trial counsel was not ineffective for
failing to object to this remark, as it was not improper. See, e.g.,
Commonwealth v. Spotz, 896 A.2d 1191, 1247 (Pa. 2006) (noting that
counsel is not ineffective for failing to raise a meritless objection).
In his second issue, Appellant claims that trial counsel was ineffective
for failing to litigate a motion to suppress the victim’s pre-trial identification
of Appellant, because “the evidence was unreliable” and the identification
was “highly suspect.” Appellant’s Brief, at 20-21. Appellant argues that the
identification was so unnecessarily suggestive and conducive to
misidentification that it deprived him of his due process of law.
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A court must assess the reliability of an out-of-court identification by
the totality of the circumstances; pre-trial identification violates due process
only when the facts and circumstances demonstrate that the identification
process was so impermissibly suggestive that it gave rise to a very
substantial likelihood of irreparable misidentification. See Commonwealth
v. Johnson, 139 A.3d 1257, 1278 (Pa. 2016).
In the instant matter, Appellant has not identified any process or
procedure that was unduly suggestive, but argues only that Appellant was
identified through a picture, and that the description the victim gave did not
fit Appellant’s description. Appellant’s Brief, at 20-21. Consequently,
Appellant has not proven arguable merit with regard to the identifications of
the witnesses he claims were tainted. See Johnson, 139 A.3d at 1279.
Next, Appellant claims trial counsel was ineffective for failing to object
to the deadly weapon sentence enhancement requested by the
Commonwealth, as the issue was not submitted to a jury and, thus, was an
illegal sentence in light of Alleyne v. United States, 133 S.Ct. 2151
(2013). This claim is meritless for several reasons.
Alleyne was decided on June 17, 2013. Appellant was sentenced on
August 5, 2008: four years, eleven months, and thirteen days prior to this
decision. Trial counsel cannot be ineffective for failing to anticipate a change
in the law. See Commonwealth v. Rollins, 738 A.2d 435, 451 (Pa. 1999);
see also Spotz, 896 A.2d at 1247. Further, Alleyne is neither a
substantive nor a “watershed” procedural rule and, therefore, does not apply
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retroactively to cases pending on collateral review. Commonwealth v.
Washington, --- A.3d ---, at *8 (Pa. 2016), see also Commonwealth v.
Riggle, 119 A.3d 1058, 1064-67 (Pa. Super. 2015) (same). Lastly, deadly
weapon enhancements do not implicate Alleyne. See Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014) (noting that the
court retains discretion to sentence outside the guideline range, so Alleyne
is not implicated).
In his remaining issue, Appellant claims trial counsel was ineffective
for failing to file a post-verdict motion to preserve his weight of the evidence
claim, as the Commonwealth’s evidence was allegedly contradictory,
inconsistent, and unreliable throughout trial.7
A verdict is against the weight of the evidence only when the jury’s
verdict is so contrary to the evidence as to shock one’s sense of justice.
See Commonwealth v. Morgan, 913 A.2d 906, 909 (Pa. Super. 2006)
(quoting Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)).
In such cases,
“[w]hen the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court's
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
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7
Appellant did argue on direct appeal that the evidence was insufficient to
sustain his convictions. Another panel of this Court affirmed his judgment of
sentence. See Commonwealth v. Minnis, 62 A.3d 465 (Pa. Super. 2012).
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thereon pure conjecture, these types of claims are not
cognizable on appellate review.”
Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007),
(quoting Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super.
2004) (citation omitted)); see also Commonwealth v. Hankerson, 118
A.3d 415, 420 (Pa. Super. 2015) (noting that this Court may not re-assess
the credibility of a witness’s testimony when ruling on a weight of the
evidence claim).
In the instant case, Appellant cross-examined the Commonwealth’s
witnesses extensively. Thus, Appellant was able to highlight any
inconsistencies in their testimony. It was the jury’s role as fact-finder to
evaluate this testimony, and the jury did so. The jury heard the evidence,
evaluated it, and found the testimony of Mr. Williams, Police Officer
Stephanie Coleman, and Detective Charles King credible. Had trial counsel
litigated this issue on direct appeal, this Court would have declined to make
a reassessment of the jury’s credibility determination. See Hankerson, 118
A.3d at 420. Thus, counsel was not ineffective for failing to raise a meritless
claim. See Spotz, 896 A.2d at 1247.
Accordingly, we discern no error in the PCRA court’s decision to
dismiss Appellant’s petition without an evidentiary hearing. Appellant’s
claims are without merit, and he is entitled to no relief. See Ragan, 923
A.2d at 1170.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2016
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