J-S74041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


____________________________________________


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.
J-S74041-16



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 Super. 2012) (unpublished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.
____________________________________________


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


____________________________________________


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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