J-S66038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

LANGSTON LAMAR PALMER

                            Appellant                     No. 408 MDA 2016


                 Appeal from the PCRA Order February 9, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0001758-2013


BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED SEPTEMBER 13, 2016

        Langston Palmer appeals from an order dismissing his petition for

relief under the Post Conviction Relief Act (“PCRA”).1 We affirm.

        A jury found Palmer guilty of assault on a law enforcement officer2 and

related offenses. On February 14, 2014, the trial court sentenced Palmer to

20-40 years’ imprisonment on the assault charge and concurrent terms of

imprisonment on the related charges.           Palmer filed a timely direct appeal,

and on November 7, 2014, this Court affirmed at 371 MDA 2014. On June

2, 2015, our Supreme Court denied Palmer’s petition for allowance of

appeal.

____________________________________________


1
    42 Pa.C.S. § 9541 et seq.
2
    18 Pa.C.S. § 2702.1(a).
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       On July 9, 2015, Palmer filed a timely PCRA petition. The court held a

PCRA hearing on February 9, 2016 and denied Palmer’s petition the same

day.   On March 10, 2016, Palmer filed a timely notice of appeal.          Both

Palmer and the PCRA court complied with Pa.R.A.P. 1925.

       Palmer raises a single issue in this appeal:

       Whether trial counsel was ineffective for failing to object to
       [admission of] statements of Burrell Hughes … which were
       hearsay and violated [Palmer’s] rights to confrontation under the
       Sixth Amendment and Article I, section 9 [of the Pennsylvania
       Constitution]?

Brief For Appellant, at 4.

       “Our standard of review from the grant or denial of post-conviction

relief is limited to examining whether the PCRA court’s determination is

supported by the evidence of record and whether it is free of legal error. We

will not disturb findings that are supported by the record.” Commonwealth

v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011).         “The court’s 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.” Commonwealth v. Duffey, 889 A.2d 56, 61 (Pa.2005).

       Further, counsel is presumed effective, and the appellant bears the

burden to prove otherwise. Commonwealth v. McDermitt, 66 A.3d 810,

813 (Pa.Super.2013). The test for ineffective assistance of counsel is the

same under both the Federal and Pennsylvania Constitutions. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Commonwealth v. Jones, 815


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A.2d 598, 611 (Pa.2002). The appellant must demonstrate that: (1) his

underlying claim is of arguable merit; (2) the particular course of conduct

pursued by counsel did not have some reasonable basis designed to

effectuate the appellant’s interests; and (3) but for counsel’s ineffectiveness,

there is a reasonable probability that the outcome of the proceedings would

have been different.     Commonwealth v. Pierce, 786 A.2d 203, 213

(Pa.2001), abrogated on other grounds by Commonwealth v. Grant, 813

A.2d 726 (Pa.2002).       “A failure to satisfy any prong of the test for

ineffectiveness will require rejection of the claim.” Jones, 815 A.2d at 611.

      The following evidence was adduced during trial:

      At 4 a.m. on September 7, 2012, York City Police Officer
      Christopher Roosen was patrolling York’s western district when
      he observed what he believed was a drug deal near the
      intersection of Princess and West Streets. Officer Roosen saw
      Palmer on a bicycle leaning into a black vehicle occupied by two
      women. As Officer Roosen approached Defendant, he heard a
      callout (a signal used to indicate the presence of police). Palmer
      saw Officer Roosen and began travelling toward West Princess
      Street. Officer Roosen radioed for back-up and continued to
      pursue Palmer.

      Officer Roosen pulled his marked police cruiser next to Palmer
      and asked him to stop, but Palmer kept riding and avoided eye
      contact with the officer. The officer activated his overhead lights
      and again asked Palmer to stop, but Palmer continued to pedal
      faster. He rode his bike onto the sidewalk, jumped off the bike
      and continued by foot. Officer Roosen began chasing Palmer on
      foot. Palmer fled northbound through a small breezeway with
      Officer Roosen approximately 10 feet behind him.            Officer
      Roosen was unable to see Palmer’s hands or any firearms but
      did not see anyone else present.

      Palmer turned into a gravel alleyway, and Officer Roosen was
      within a few seconds of rounding the same corner when he

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     heard three loud shots. Officer Roosen testified that the shots
     ‘almost sounded right on top of [me].’ Officer Roosen stopped
     his pursuit, drew his firearm, and radioed that shots had been
     fired. Officer Roosen resumed his pursuit and ran onto West
     Street. He checked the 900 block of School Place, where, again,
     no one was present, and he radioed for additional units. At this
     time, Burrell Hughes approached Officer Roosen and screamed
     that Officer Roosen had shot ‘Tank’ (Palmer’s street name).
     Officer Roosen told Hughes that he did not shoot Tank, but
     rather that Tank had shot at him. Hughes was detained and
     searched for weapons; none were found on him. Officer Roosen
     and Officer Jay returned to the gravel alleyway, where they
     found three shell casings of the same make and model in close
     proximity to one another. The casings appeared to be fresh,
     since there was no moisture, grass, gravel, or dirt on them. The
     officers did not see any remnants of fireworks, firecrackers, or
     other items that would have created a sound similar to a gun
     shot.

     Officer Roosen prepared and executed a search warrant for
     Palmer’s address but did not recover any firearms.          Police
     officers found Palmer’s state-issued identification card in his
     cargo shorts. Officer Roosen contacted the Pennsylvania State
     Police to see if Palmer had a license to carry a concealed weapon
     and learned that he had no such license.

Commonwealth v. Palmer, 371 MDA 2014, at 3-4 (Pa.Super., 11/7/14)

(unpublished memorandum; citations omitted).

     In this appeal, Palmer argues that trial counsel was ineffective for

failing to object to Officer Roosen’s testimony that Burrell Hughes ran up to

him and stated, “you shot ‘Tank’”, i.e., Officer Roosen had shot Palmer.

Palmer contends that Hughes’ out-of-court statement was inadmissible

hearsay that prejudiced Palmer by identifying him as a person at the scene

of the crime.     Palmer also asserts that this testimony violated his

Confrontation   Clause   rights,   because   it   constituted   an   out-of-court


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identification by a witness, Hughes, who did not take the stand and could

not be cross-examined.

       The PCRA court correctly determined that Palmer’s claim lacked

arguable merit and did not prejudice Palmer.       To begin with, Hughes’

statement to Officer Roosen was not hearsay.      Hearsay is “a statement,

other than one made by the declarant … offered in evidence to prove the

truth of the matter asserted.” Pa.R.E. 801(c). A statement is not hearsay if

it is a statement by a declarant not offered for the truth of the matter

asserted. Id. Here, the Commonwealth did not offer Hughes’ statement for

the truth of the matter asserted -- i.e., Officer Roosen shot at Palmer --

because Officer Roosen testified that he did not shoot at Palmer.     Thus,

Hughes’ statement was not hearsay.

     The gist of Palmer’s argument seems to be that Officer Roosen’s

testimony prejudiced him because it was the only evidence that placed him

at the scene of the shooting.   We disagree.   Palmer placed himself at the

scene of the shooting through his own testimony. He testified that Officer

Roosen saw him selling drugs and pursued him into the alleyway where the

shots were fired. N.T., 12/4/13, at 136-39.

     Moreover, Hughes’ statement actually bolstered Palmer’s defense.

Palmer insisted that he did not shoot at Officer Roosen. N.T., 12/4/13, at




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137.    Hughes’ statement supported Palmer’s defense by indicating that

Officer Roosen, not Palmer, was the shooter during this incident.3

       For these reasons, the PCRA court properly denied Palmer’s PCRA

petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2016




____________________________________________


3
  In this regard, Commonwealth v. Thomas, 578 A.2d 422 (Pa.1990), the
case relied upon by Palmer, is distinguishable. In Thomas, both the victim
and another witness told police that the defendant stole the victim’s car.
The victim testified at trial. The other witness did not testify, but the court
permitted the Commonwealth to introduce the witness’s statement during a
police officer’s testimony. The jury found the defendant guilty of theft and
unauthorized use of an automobile. Our Supreme Court reversed and
remanded for a new trial, reasoning that the witness’s identification
“considerably enhanced” the Commonwealth’s case and furnished proof of
the defendant’s guilt through a person not under oath or available for cross-
examination. Id., 578 A.2d at 428. In contrast, in the present case,
Hughes’ statement was decidedly a mixed blessing for the Commonwealth.
Although it placed Palmer at the scene of the shooting, it also helped
Palmer’s defense by suggesting that Officer Roosen was the shooter instead
of Palmer.



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