J-S57018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellant

                      v.

DEVIN ROUSE

                           Appellee                     No. 3020 EDA 2014


              Appeal from the PCRA Order September 30, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0713202-2002


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                           FILED JANUARY 12, 2016

      The Commonwealth appeals from the September 30, 2014 order

granting the petition for relief filed by Appellee, Devin Rouse, pursuant to

the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.        After careful

review, we reverse.

      On Appellee’s direct appeal, a previous panel of this Court summarized

the relevant factual history of this case as follows.

                    On April 12, 2002, at approximately 11:00
            p.m., Brian Birkelback, (hereinafter “Brian”), his
            girlfriend,    Cassandra       Ketterer   (hereinafter
            “Cassandra”), and his brother, Michael Birkelback
            (“Michael”), went to the corner of Rising Sun and
            Gilham to pick up a few friends before heading to a
            bar. (N.T. 12/9/04 pp. 140-143). Katilynne Mcelroy
            [sic] (hereinafter “Katilynne”), Brian’s cousin, John
            Fearnley (hereinafter “Fearnley”), John Scarpello
            (hereinafter     “Scarpello”),     Scott    Fitzpatrick
            (hereinafter “Scott”), Richard Kostelny (hereinafter
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          “Richard”), Michelle Sayers (hereinafter “Michelle”),
          and Tammy Jauss (hereinafter “Tammy”) were
          sitting on the steps of the Classic Optical store
          located at the corner of Rising Sun and Gilham.
          (N.T. 12/8/04 pp. 26-28).       After Brian arrived,
          Katilynne’s attention was drawn to a gold car moving
          slowly up Rising Sun Avenue; it appeared that the
          people in the car were looking at them. Suspecting
          trouble, Katilynne and Michelle went into the house,
          and everyone [else] got into Brian’s car.      (N.T.
          12/8/04 pp. 44-53).         Brian was the driver,
          Cassandra was next to him and Richard sat in the
          front next to the door. In the rear, Michael was
          behind Brian, Scarpello was next to him, Fearnley
          was next to him, and Tammy sat on Scott’s lap
          behind Richard. (N.T. 12/8/04 pp. 115-117; N.T.
          12/13/04 p. 93).

                At approximately 11:45 p.m., before the car
          pulled off, Richard saw the defendants approach the
          passenger side of the car; [co-defendant] Naem
          [Waller] stood at the front passenger window.
          Scarpello was suspicious of Naem because he
          approached the car with money in his hands and
          asked if anyone wanted to buy weed. Everyone in
          the car stated that they were not interested in
          buying weed.      (N.T. 12/7/04 pp. 173-174; N.T.
          12/8/04 pp. 117-124; N.T. 12/13/04 pp. 95-96). At
          that point, Scott yelled, “Oh, man, we’re getting
          robbed.” Richard noticed a gun in Naem’s hand and
          screamed, “[t]hat’s a fake.”        He noticed that
          [Appellee], who was also on the passenger side, had
          a silver 9mm gun in his hand. (N.T. 12/8/04 pp.
          117-124; N.T. 12/9/04 pp.15-16). Michael noticed a
          third male on the driver’s side. Brian exited the car
          and began fighting the male on the driver’s side of
          the car. [Appellee] fired three shots, one struck
          Brian in the back. (N.T. 12/9/04 pp. 18-19; 149-
          151). Everyone got out of the car and Michael
          grabbed Brian and helped him to the ground. Id. at
          19.     Immediately after the shots were fired,
          [Appellee], Naem and the third male ran off.
          (12/8/04 pp. 126-128). Katilynne, who was in the


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          house, heard the shots, looked out the window, saw
          Brian on the street and came outside. Id. at 53-54.

                 Officer Baird arrived at the intersection of
          Gilham Street and Rising Sun Avenue at
          approximately 11:50 p.m. and saw Michael and
          Cassandra holding Brian as he lay in the street.
          Officer Baird attempted to speak with the occupants
          of the vehicle in order to get a description of the
          perpetrators to give out over police radio. He found
          a fired cartridge case on the back of Brian’s car, one
          on the side walk, and a projectile in the street. The
          medical unit arrived and attempted to render aid to
          Brian before he was transported to Temple hospital.
          (N.T. 12/7/04 pp. 145-172).

                Michael Klepesky (hereinafter “Mr. Klepesky”),
          who lived approximately a half [of] a mile from the
          scene of the incident, was listening to a police
          scanner when he heard a report of a shooting near
          Gilham Street and Rising Sun, and that the getaway
          car, a gold four-door car, was traveling south on
          Oxford Avenue.      After hearing the report, Mr.
          Klepesky took his dog outside for a walk in the alley
          behind his house when he saw a gold four-door car
          speeding through the alley. He noted that the car fit
          the description he heard on the police scanner, there
          were no less than four people in the car as it
          screeched around the corner. He lost sight of the car
          but heard a loud crash. Shortly thereafter he saw a
          black male wearing a dark hoody and dark jeans
          with a white tee-shirt under the hoody walking
          towards the mini-mart on Oxford Avenue. Then he
          saw another male walking down Oxford Avenue
          towards Loretto Avenue wearing a white tee shirt
          and dark jeans. This male went to a phone booth,
          dialed a number, hung up, and quickly walked away.
          Ten minutes later he saw a police car and stopped
          them to tell them what he saw. The officers put this
          information out over police radio. The officer placed
          Mr. Klepesky in the car and drove around looking for
          the gold car; they traveled approximately one block
          before they saw the gold four-door car parked on the
          side walk. Police officer Dawson, [sic] felt the hood

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          of the car and it was hot; there was some light
          bumper damage and the hood was also crumpled a
          bit. (N.T. 12/9/04 pp. 80-105; N.T. 12/13/04 pp.
          180-197). Other officers transported Katilynne and
          Michael to the location of the gold car and she
          identified it as the car she saw moving slowly up
          Rising Sun Avenue just before the shooting. (N.T.
          12/8/04 pp. 56-58). Mr. Klepesky identified the car
          as the one he saw speeding through the alley. (N.T.
          12/9/04 p. 89).

                Officer    Craig    Perry[,]   after   receiving
          information over [the] police radio[,] saw a black
          male, later identified as [Appellee], wearing a white
          tee-shirt and blue jeans in the Oxford Circle area.
          Officer Perry approached [Appellee] and asked him
          his name, to which he replied “Devlin Womack.”
          [Appellee] stated that he was in the area to meet a
          female who he met on the internet. (N.T. 12/14/04
          pp. 9-20). Shortly thereafter, the police brought
          Michael, who was visibly distraught, and Katilynne to
          take a look at [Appellee] to see if they could make
          an identification. [Appellee] was presented to them
          but neither made an identification. (N.T. 12/8/04 pp.
          57-59, 69-70). Mr. Klepesky was brought to the
          area to see if he could identify [Appellee] as one of
          the males he saw earlier, he was unable to do so.
          (N.T. 12/9/04 pp. 116-117). [Appellee] was taken
          to the homicide unit where he gave a statement to
          the police that he was not involved in the shooting.
          (N.T. 12/14/04 pp. 149-153).

                Brian was pronounced dead at 12:19 a.m. at
          Temple Hospital. (N.T. 12/7/04 p. 155). Doctor
          Gregory McDonald, the medical examiner, testified
          that Brian died from a gunshot wound that entered
          the lower portion of the back, severing the spinal
          cord. The bullet proceeded through the aorta, then
          proceeded through several portions of his intestines
          and exited out the front part of the abdominal wall.
          (N.T. 12/13/04 pp. 151-152).

                In the early morning of April 13, 2002, Police
          Officer William Gross ascertained that the gold car

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          involved in the incident belonged to Diane Waller,
          the mother of Naem Waller. Later that day[,] at
          approximately 5:32 a.m., the car was reported
          stolen but it had no signs of forced entry to suggest
          that it had been stolen. (N.T. 12/14/04 p. 70-77).
          On April 14, 2002, in the early morning, Police
          Officer Trenwith photographed the vehicle and
          recovered five pieces of clothing, a black leather
          jacket, a baseball hat, skull cap, and a glove in the
          car. The items found in the car were transmitted to
          the Criminalistics Laboratory for analysis. Latent
          prints were also lifted from inside the car and a half
          full Smirnoff Twist bottle found in the car. It was
          subsequently determined that Naem’s fingerprints
          were on the half full Smirnoff [Twist] bottle, a CD
          cover, and an envelope; Diane Waller’s fingerprints
          were found on the glove compartment. Id. at 108-
          132.     The results of the Criminalistics analysis
          revealed [Appellee’s] DNA on the sweat band of the
          baseball hat taken from the car. (N.T. 12/15/04 p.
          34).

                Immediately after the shooting, Richard,
          Michael, Cassandra, and Scarpello gave statements
          to the police and a description of two of the three
          males involved in the shooting.      The witnesses
          described one of the perpetrators as a light skinned
          black male or a Hispanic male. (N.T. 12/9/04 p. 70,
          155, 169; 12/8/04 pp. 130-131; 12/13/04 pp. 136-
          137). Everyone described the second male as a
          darker skinned black male. Id. A few days later,
          Cassandra assisted the police in drawing a sketch of
          the light skinned male. (See Exhibit “C-22”). On
          May 15, 2002, Richard, Michael, Cassandra, and
          Scarpello were taken to the homicide unit and asked
          to view two photo arrays[;] each contained a photo
          of one of the defendants. Richard identified the
          photo of [Appellee] but not Naem. (N.T. 12/8/04 pp.
          34-138).    Michael identified both the photos of
          [Appellee] and Naem. (N.T. 12/9/04 pp. 34-35).
          Cassandra identified the photo of Naem but not
          [Appellee]. Id. at 162 163. Scarpello could not
          make any identification. (N.T. 12/13/04 pp. 102-
          103).     At a subsequent line-up, Richard and

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            Scarpello identified [Appellee] and Michael identified
            Naem. Everyone else selected someone other than
            the defendants or could not make any identification
            from the lineup. (N.T. 12/15/04 pp. 112-125).

                   On May 13, 2002, Ty-Ron Rouse, [Appellee’s]
            first cousin, was in custody on another matter. Ty-
            Ron told the police that [Appellee] told him that he
            went to rob Brian with two other people. Brian
            jumped out of the car and he thought he had a
            weapon so he shot him in the back. [Appellee] told
            him that he used a 9mm to shoot Brian, they left the
            car on Roosevelt Boulevard and he threw the gun in
            the river. The police picked him up for questioning
            and he told them that he was on his way to see a
            girl.   Ty-Ron testified at trial concerning what
            [Appellee] told him as well as how he knew Brian,
            Michael, [Appellee] and Naem. Ty-Ron stated that
            [Appellee] knew Michael because he bought
            prescription drugs from him. He also testified that
            [Appellee] and Naem knew each other very well and
            that Naem had access to his mother’s car. (N.T.
            12/13/04 pp. 37-53).

                   On May 20, 2002, Police Officer Patrick Whalen
            went to 2016 Rowan Street, [Appellee’s] residence,
            to arrest him. [Appellee] was found in the basement
            sitting under a table with a blanket over the top of
            his body. ([N.T.] 12/15/04 pp. 55-58).

Commonwealth v. Rouse, 902 A.2d 981 (Pa. Super. 2006) (unpublished

memorandum at 1-6) (Rouse I), appeal denied, 909 A.2d 304 (Pa. 2006),

quoting Trial Court Opinion, 4/29/05, at 2-6.

      After two trials that ended in hung juries, Appellee proceeded to a

third jury trial, at the conclusion of which, Appellee was convicted of second-

degree murder, robbery, carrying a firearm without a license, and




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possessing an instrument of crime.1             On February 14, 2005, Appellee was

sentenced to an aggregate sentence of life imprisonment without the

possibility of parole. This Court affirmed the judgment of sentence on April

13, 2006.     Rouse I, supra at 7.             Our Supreme Court denied Appellee’s

petition for allowance of appeal on October 12, 2006. Id.

        Appellee filed the instant timely pro se PCRA petition on October 10,

2007. The PCRA court appointed counsel who filed an amended petition on

Appellee’s behalf on September 26, 2008. The PCRA court issued its notice

of intent to dismiss Appellee’s petition without a hearing pursuant to

Pennsylvania Rule of Criminal Procedure 907 on January 15, 2009. Appellee

did not file a response, and the PCRA court dismissed the petition on March

5, 2009. Appellee filed a timely notice of appeal, and this Court vacated the

PCRA court’s order and remanded for an evidentiary hearing on Appellee’s

petition, including the claim at issue in this appeal, “that trial counsel was

ineffective for failing to assert [Appellee]’s due process right to present

evidence that a third person had committed the offenses with which

[Appellee] was charged.”         Commonwealth v. Rouse, 38 A.3d 925 (Pa.

Super. 2011) (unpublished memorandum at 3) (Rouse II).

        On remand, the PCRA court conducted an evidentiary hearing on

January 27, 2014.       After permitting the parties to file post-hearing briefs,


____________________________________________
1
    18 Pa.C.S.A. §§ 2502(b), 3701(a), 6106, and 907(a), respectively.



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the PCRA court entered an order granting Appellee’s PCRA petition and

ordering a new trial. On October 21, 2014, the Commonwealth filed a timely

notice of appeal, along with a concise statement of errors complained of on

appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b),

although the PCRA court did not order it to file said statement. The PCRA

court filed its Rule 1925(a) opinion on January 9, 2015.

      On appeal, the Commonwealth presents the following issue for our

review.

               Did the PCRA court err in finding trial counsel was
               ineffective for purportedly failing to argue a defense
               motion to admit other crimes evidence, where the
               evidence was inadmissible and [Appellee] was not
               prejudiced?

Commonwealth’s Brief at 5.

      We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA   relief,   we   examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”         Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).           “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”            Commonwealth v.


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Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

       The Sixth Amendment to the Federal Constitution provides, in relevant

part, “[i]n all criminal prosecutions, the accused shall enjoy the right … to

have the Assistance of Counsel for his defence.”2      U.S. Const. amend. VI.

The Supreme Court has long held that the Counsel Clause includes the right

to the effective assistance of counsel.          See generally Strickland v.

Washington, 466 U.S. 668, 686 (1984); Commonwealth v. Pierce, 527

A.2d 973, 975 (Pa. 1987).

       In analyzing claims of ineffective assistance of counsel, “[c]ounsel is

presumed effective, and [appellant] bears the burden of proving otherwise.”

Fears, supra at 804 (brackets in original; citation omitted). To prevail on

any claim of ineffective assistance of counsel, a PCRA petitioner must allege

and prove “(1) the underlying legal claim was of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the

petitioner was prejudiced—that is, but for counsel’s deficient stewardship,

there is a reasonable likelihood the outcome of the proceedings would have


____________________________________________
2
  Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
relevant part, “[i]n all criminal prosecutions the accused hath a right to be
heard by himself and his counsel ….” Pa. Const. art. I, § 9. Our Supreme
Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.



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been different.”      Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence

fails to satisfy any one of these prongs.”         Commonwealth v. Elliott, 80

A.3d 415, 427 (Pa. 2013) (citation omitted), cert. denied, Elliott v.

Pennsylvania, 135 S. Ct. 50 (2014).

       The issue upon which the PCRA court granted relief was that trial

counsel was ineffective for not arguing, as a matter of due process, that

Appellee had a constitutional right to introduce evidence to show that “Ty-

Ron … committed a similar robbery with Naem, three weeks after the

robbery for which Appellee was convicted[.]” PCRA Court Opinion, 1/9/15,

at 4. Appellee wished to introduce the facts of the subsequent robbery in an

effort to prove that Ty-Ron committed the instant robbery.        Id. at 7.   On

appeal, the Commonwealth argues that Appellee failed to meet his burden

as to all three prongs of the Pierce test and his claim should have been

rejected.      Appellee counters that counsel was ineffective, lacked a

reasonable basis to not pursue the due process claim, and Appellee was

prejudiced as a result.3



____________________________________________
3
  Appellee also argues that the Commonwealth waived its entire argument
on appeal for failure to argue its issue in its Rule 1925(b) statement.
Appellee’s Brief at 65-69. However, Rule 1925(b) states that the statement
shall “be deemed to include every subsidiary issue contained therein which
was raised in the trial court.” Pa.R.A.P. 1925(b)(4)(v). In our view, the
issue of whether trial counsel should have raised the other robbery evidence
(Footnote Continued Next Page)


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      We elect to only address the parties’ arguments on the prejudice prong

of the Strickland/Pierce framework, as we conclude it is dispositive of the

instant appeal.    Our Supreme Court has described the required prejudice

showing in the following terms.

                    Relating to the prejudice prong of the
             ineffectiveness test, the PCRA petitioner must
             demonstrate that there is a reasonable probability
             that, but for counsel’s error or omission, the result of
             the proceeding would have been different.
             Particularly relevant herein, it is well-settled that a
             court is not required to analyze the elements of an
             ineffectiveness claim in any particular order of
             priority; instead, if a claim fails under any necessary
             element of the Strickland test, the court may
             proceed to that element first.

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citation

omitted).

      For the purposes of this appeal, we assume, without deciding, that the

PCRA court correctly concluded that Appellee had a constitutional right to

admit the facts of the second robbery in order to show that Ty-Ron

committed the instant robbery and that counsel lacked a reasonable basis

for not arguing this point. However, our review of the record reveals that

Appellee was not prejudiced by this evidence’s exclusion from trial.

      Here, the Commonwealth presented DNA evidence that showed

Appellee’s DNA was found on the inside rim of a baseball cap that was
                       _______________________
(Footnote Continued)

on a different ground is a subsidiary issue of the claim raised by the
Commonwealth’s Rule 1925(b) statement.



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recovered from inside the robber’s vehicle. N.T., 12/14/04, 129-131; N.T.,

12/15/04, at 34-35.    Michael Birkelback affirmatively testified that Ty-Ron

was not present at the crime scene.          N.T., 12/9/04, at 26-27.     More

specifically, Michael testified that Appellee, not Ty-Ron, was the one who

killed Brian. N.T., 12/9/04, at 27, 34. Furthermore, Kostelny and Scarpello

identified Appellee in a line-up proceeding and at trial.    N.T., 12/8/04, at

117, 134, 145; N.T., 12/13/04, at 135. Appellee was stopped by police in

the vicinity of where the robber’s vehicle was found. N.T., 12/14/04, at 9-

20. When stopped by police, Appellee gave the police a fake name and an

implausible story as to why he was in the area at the time. Id. at 13-16,

18; see also Commonwealth v. Toro, 638 A.2d 991, 998 (Pa. 1994)

(stating, “prosecutor [properly] elicited information regarding appellant’s use

of different names during his contacts with the police … [because e]vidence

of this type was relevant to the issue of appellant’s consciousness of

guilt[]”).   As noted above, when the police apprehended Appellee, he was

found hiding in the basement under a table, concealing himself under a

blanket. N.T., 12/15/04, at 57-59; see also Commonwealth v. Johnson,

838 A.2d 663, 68 (Pa. 2003) (stating, “where evidence exists that a

defendant committed a crime, knew he was wanted, and fled or concealed

himself, such evidence is admissible to establish consciousness of guilt[]”).

      When taken together, we conclude that even if Appellee were to

present the facts of the second robbery to attempt to establish that Ty-Ron


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committed both robberies, Appellee did not meet his burden with regard to

prejudice.      The existence of DNA evidence, eyewitness identifications,

Appellee’s alias, story, and concealment lead us to conclude that there was

not “a reasonable probability that, but for counsel’s error or omission, the

result of the proceeding would have been different.”               Koehler, supra.

Therefore, Appellee did not meet his burden under the Strickland/Pierce

test, and the PCRA court incorrectly ordered a new trial in this case.4

       Based on the foregoing, we conclude the PCRA court erred when it

granted Appellee’s PCRA petition.              See Fears, supra.   Accordingly, the

PCRA court’s September 30, 2014 order is reversed, and the February 14,

2005 judgment of sentence is hereby reinstated.

       Order reversed.         Judgment of sentence reinstated.         Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016



____________________________________________
4
  As noted above, because Appellee’s claim failed to meet the prejudice
prong of the Strickland/Pierce test, we need not address the arguable
merit or reasonable basis prongs. See Elliott, supra.



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