J-S37011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HASAAN HATCHER                             :
                                               :
                       Appellant               :   No. 2418 EDA 2017

                    Appeal from the PCRA Order July 21, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006134-2010


BEFORE:       OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                              FILED OCTOBER 09, 2018

        Appellant, Hassan Hatcher, appeals pro se from the order entered on

July 21, 2017, dismissing his first petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        We briefly summarize this case as follows. On May 10, 2011, a jury

convicted Appellant of aggravated assault and conspiracy.1 On September 9,

2011, the trial court sentenced Appellant to an aggregate term of 10 to 20

years of imprisonment. We affirmed Appellant’s judgment of sentence on June

5, 2013. See Commonwealth v. Hatcher, 2013 WL 11262119 (Pa. Super.

2013) (unpublished memorandum).2               Our Supreme Court denied further

review. See Commonwealth v. Hatcher, 77 A.3d 636 (Pa. 2013).

____________________________________________


1   18 Pa.C.S.A. §§ 2702 and 903.

2   Our decision provides a detailed recitation of the facts of this case.
____________________________________
* Former Justice specially assigned to the Superior Court.
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       Appellant filed a pro se PCRA petition on December 9, 2014. The PCRA

court appointed counsel to represent Appellant and appointed counsel filed an

amended PCRA petition on May 17, 2016.             Counsel filed two subsequent

amended PCRA petitions on September 1, 2016 and February 2, 2017. On

February 24, 2017, the PCRA court issued notice pursuant to Pa.R.Crim.P. 907

of its intent to dismiss Appellant’s various PCRA petitions and amendments.

On March 15, 2017, Appellant filed a pro se response, alleging PCRA counsel’s

ineffectiveness and further requesting that the PCRA court appoint new

counsel or, alternatively, allow Appellant to proceed pro se. On July 21, 2017,

the PCRA court permitted Appellant to proceed pro se, and, ultimately, denied

Appellant relief.3 This timely appeal followed.4

       On appeal, Appellant presents the following pro se issues for our review:

       1. Did the PCRA court err in denying relief in light of affidavit
          evidence substantiating that trial counsel was ineffective for
          failing to litigate a motion to suppress and object to an in-court
          identification at trial, which was the result of a pretrial live
          line[-]up identification so suggestive, unreliable, and conducive
          to misidentification as to taint the conviction?

____________________________________________


3 Before permitting Appellant to proceed pro se, the PCRA court held a hearing
pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (“When the
waiver of the right to counsel is sought during PCRA review, an on-the-record
determination should be made that the waiver is knowing, intelligent, and
voluntary.”).

4  Appellant filed a pro se notice of appeal on July 31, 2017. On August 7,
2017, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on August 15, 2017. The PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on September 29, 2017.

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      2. Did the PCRA court err in denying relief, where Appellant
         presented newly discovered recantation evidence during the
         [PCRA] proceeding substantiating that the [C]ommonwealth
         violated his due process rights by presenting false testimony
         and fabricated evidence at trial, which so undermined the truth
         determining process that no reliable adjudication was possible?

      3. Did the PCRA court err in denying Appellant’s motion for
         appointment of new counsel, where PCRA counsel was
         ineffective for waiving [Appellant’s claim based on recantation
         evidence] by failing to develop and cite case law in support of
         the claim in light of newly discovered evidence [demonstrating
         that] the [C]ommonwealth violated Appellant’s due process
         rights by presenting false testimony and fabricated evidence at
         trial, which so undermined the truth-determining process that
         no reliable adjudication was possible?

      4. Whether Appellant has been denied effective review because of
         the loss and/or failure to certify and transmit essential portions
         of ordered transcripts, exhibits submitted during trial, and
         affidavits necessary for a determination of the issues raised on
         appeal?

Appellant’s Brief at 6 (footnote and suggested answers omitted).

      In his first issue presented, Appellant argues that trial counsel was

ineffective for failing to seek suppression of the victim’s in-court identification

of Appellant at trial.    Id. at 14-20.      Appellant claims that the victim’s

identification of Appellant was based on suggestive and unreliable influences

that occurred immediately prior to the preliminary hearing and before trial.

More specifically, Appellant claims the police exposed the victim to “photo

arrays containing [Appellant’]s mug shot and other evidence collected from

the crime scene by police, such as PNC Bank ATM photographs and live

streaming video footage from [a] liquor [store]” in an effort to encourage the

victim to identify Appellant. Id. at 14. Appellant also maintains that before



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the start of the preliminary hearing, Appellant and his co-defendant were

brought into court and the victim was influenced by his wife to choose

Appellant as a participant in the shooting. Relying on affidavits from his family

members who were present for the preliminary hearing, Appellant suggests

that the victim and his wife “sat together and actually discussed [Appellant’s]

identity while viewing him” before the preliminary hearing.           Id. at 16.

Appellant argues that the victim was not able to identify Appellant as a

participant in the shooting when police presented the victim with photographs

at the hospital 24 hours after the incident. Id. at 14. Accordingly, Appellant

contends that “[g]iven [the victim’s] initial failures to identify, followed by a

later positive in-court identification – [the victim’s] identification [was] based

on his improper exposures to [Appellant], rather than his memories of the

crime.” Id.    Appellant also challenges the PCRA court’s determination that

there was an independent basis for the victim’s identification. Id. at 17-20.

      Our standard of review is as follows:

      Our standard of review of an order denying a PCRA petition is
      limited to an examination whether the PCRA court's determination
      is supported by the evidence of record and free of legal error. We
      grant great deference to the PCRA court's findings, and we will not
      disturb those findings unless they are unsupported by the certified
      record.

                           *            *           *

      The law presumes counsel has rendered effective assistance, and
      the burden of demonstrating ineffectiveness rests with an
      appellant. To satisfy this burden, an appellant must plead and
      prove by a preponderance of the evidence that: (1) his underlying
      claim is of arguable merit; (2) the particular course of conduct

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     pursued by counsel did not have some reasonable basis designed
     to      effectuate      his     interests;      and,     (3)      but
     for counsel's ineffectiveness, there is a reasonable probability that
     the outcome of the challenged proceeding would have been
     different. Failure to satisfy any prong of the test will result in
     rejection of the appellant’s ineffective assistance of counsel claim.

Commonwealth v. Holt, 175 A.3d 1014, 1017–1018 (Pa. Super.

2017).

     Regarding identification, our Supreme Court has determined:

     A court must           assess the      reliability of an        out-of-
     court identification by examining the totality of the circumstances.
     A pre-trial identification violates due process only when the facts
     and circumstances demonstrate that the identification procedure
     was so impermissibly suggestive that it gave rise to a very
     substantial likelihood of irreparable misidentification. [Where an
     initial one-on-one confrontation between the accused and
     the identifying witness       occurs in court, identification evidence
     derived therefrom is not automatically unreliable.                 See
     Commonwealth v. Floyd, 431 A.2d 984, 987 (Pa. 1981).]

     Initial equivocation does not          render   later   identifications
     constitutionally unreliable per se.

                          *            *             *

     [If a pre-trial identification is tainted, “the subsequent in-
     court identification will be admissible if there exists an
     independent basis for the identification.” See Commonwealth v.
     Abdul–Salaam, 678 A.2d 342, 349 (Pa. 1996).] To determine
     whether        a     sufficiently   independent      basis     for
     the identification exists, a court must consider: (1) the
     opportunity of the witness to view the suspect at the time of the
     offense; (2) the witness' focus or attention upon the suspect; (3)
     the accuracy of the witness' description of the suspect; (4) the
     level of certainty demonstrated by the witness at the
     confrontation; and (5) the length of time between the crime and
     the confrontation.

Commonwealth v. Johnson, 139 A.3d 1257, 1278–1279 (Pa. 2016).


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      On Appellant’s first issue, the PCRA court concluded:

      Here, there was more than ample evidence of an independent
      basis for the in-court identification. Accordingly, a [pre-trial]
      line-up was not required. On the day the victim was shot, he
      heard [Appellant] say, “I think that’s him. I think that’s him.”
      Thereafter, the victim and [Appellant] stood face to face at which
      time [Appellant] displayed [a] firearm tucked in his waistband.
      The victim saw [Appellant’s] face as [Appellant] raised his shirt,
      exposing a gun handle. Under these conditions, [including] a
      face-to-face confrontation, the victim’s in-court identification of
      [Appellant] was sufficiently reliable to admit into evidence. Thus,
      there was no basis to suppress [Appellant’s] in-court
      identification. Consequently, [Appellant’s] claim lacks merit and
      cannot afford him relief. A motion to suppress would have been
      baseless and counsel cannot be found ineffective for failing to file
      a meritless claim.

PCRA Court Opinion, 10/29/2017, at 10-11 (record and case citations

omitted).

      Upon review, we agree that Appellant is not entitled to relief. Here, the

facts and circumstances do not demonstrate that any pre-trial identification

procedures were so impermissibly suggestive that they gave rise to a

substantial likelihood of irreparable misidentification. Initially, we note that

the police prepared a photo array for the victim to examine at the hospital

following the shooting.   N.T., 5/4/2011, at 210. The victim was not able to

identify anyone from that array. Id. However, Appellant’s photo was not

contained in the sole photo array examined by the victim. Id. at 234-235.

As such, the police did not suggest Appellant’s identification to the victim in

an impermissible line-up or photo array. Equally important, the victim’s failure




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to identify Appellant in the photo array does not diminish the later in-court

identification since Appellant’s photo was omitted from that array.

      Furthermore, while Appellant baldly contends that the police showed the

victim Appellant’s mugshot, photographs, and live video footage of the

incident prior to identifying Appellant, it is not entirely clear from the record

when, or under what conditions, the victim was shown any of these items.

The victim acknowledged that he was not shown “the actual videos, but

pictures and photos.”    N.T., 5/4/2011, at 15. Appellant fails to support his

current claim with evidence that the police suggested Appellant’s identity to

the victim while he viewed such evidence before trial.

      Moreover, we agree with the PCRA court’s assessment that even if there

were a tainted identification procedure, either at the preliminary hearing or

before trial, there was an independent basis to admit the victim’s in-court

identification. At trial, the victim testified that Appellant left him threatening

voicemail messages prior to the shooting. N.T., 5/4/2011, at 160. Based on

those messages, the victim recognized Appellant’s voice right before the

shooting. Id. at 45, 85-87, and 160. The victim also testified that he stood

face-to-face with Appellant and Appellant showed the victim a firearm tucked

into his waistband. Id. at 45-46, and 103-109. The victim first identified

Appellant at the preliminary hearing, approximately one month after the

shooting. Id. at 126.    At trial, the victim testified that he was 100% certain

that Appellant was the person who made threatening telephone calls and the


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same person who approached him with a gun in his waistband on the day of

the incident. Id. at 161. As such, we agree that the in-court identification

was reliable and, thus, there is no merit to Appellant’s claim that counsel was

ineffective for failing to move to suppress identification evidence.

      Finally, we conclude that Appellant failed to prove that he was

prejudiced by the victim’s identification.     The Commonwealth presented

evidence of prior altercations with the victim at Appellant’s home, regarding

cellular telephone bills. Thus, the Commonwealth offered the jury a plausible,

retaliatory motive. Moreover, the victim’s wife witnessed the shooting and

positively identified Appellant’s brother and co-defendant as the shooter.

Multiple witnesses testified that the shooter and Appellant fled the scene

together in a gray Dodge Magnum. Upon investigation, police recovered a

gray Dodge Magnum near Appellant’s residence. The title to the vehicle listed

Appellant and his mother as co-purchasers.           N.T., 5/4/2011, at 215.

Furthermore,    the   Commonwealth       elicited   testimony   that   Appellant

subsequently threatened the victim and his wife during a pre-trial conference.

Id. at 112-124. Appellant called the victim “a pussy” for testifying against

him and said, “I should have got you when I got the chance.” Id. at 75-75,

and 124.     Hence, there was additional, overwhelming evidence linking

Appellant to the crime. As such, we agree that Appellant’s first claim fails.

      Appellant’s second and third issues are inter-related claims pertaining

to purported newly discovered evidence based on an affidavit from


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Commonwealth witness, Maisie Suarez. As such, we will examine those issues

together.   For both issues, Appellant relies on an affidavit dated January 18,

2017, wherein Commonwealth trial witness, Maisie Suarez, recanted and

clarified several portions of her trial testimony.   Id. at 28.   The thrust of

Appellant’s argument is that he is entitled to relief because the Commonwealth

procured Suarez’s trial testimony knowing that it was false.      Specifically, in

his second issue presented, Appellant argues that PCRA counsel was

ineffective for failing to develop the newly discovered evidence argument in

Appellant’s second supplemental PCRA petition, and he should have received

new counsel. Id. at 21. In his third issue presented, Appellant argues the

merits of his after-discovered evidence claim based upon the Suarez affidavit.

Appellant’s Brief at 27-32. He claims that he is entitled to a new trial as a

result.

      To obtain a new trial based on after-discovered evidence,

      the defendant must prove, by a preponderance of the evidence,
      that the evidence: (1) could not have been obtained before the
      conclusion of trial by the exercise of reasonable diligence; (2) is
      not merely corroborative or cumulative; (3) will not be
      used solely to impeach a witness's credibility; and (4) would likely
      result in a different verdict.


Commonwealth v. Murray, 174 A.3d 1147, 1153 (Pa. Super. 2017).

Recantation testimony is one of the least reliable forms of proof, particularly

when it constitutes an admission of perjury. Commonwealth v. Padillas,

997 A.2d 356, 366 (Pa. Super. 2010).



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     Upon review, the Suarez affidavit and Appellant’s after-discovered

evidence claim were presented to the PCRA court in a counseled, second

supplemental PCRA petition filed on February 2, 2017 and are contained in

the certified record. As such, we conclude that the issue was squarely before

the PCRA court. In denying relief, the PCRA court stated:

     [Appellant] presented an affidavit from [Maisie] Suarez, a
     Commonwealth witness at trial. In her affidavit, this witness
     claimed she could not remember if there were two or three men
     responsible for shooting the victim. However, at trial, the witness
     identified [Appellant] as the driver of the Dodge Magnum and his
     brother as the shooter. The witness also testified that the driver
     had a gun in his hand [and] she heard about three to four
     gunshots. When the shooting stopped, she saw the victim
     collapse next to her car. No relief can be granted on this claim.
     Even if the witness’s recantation was admitted, [Appellant] cannot
     show that it would have resulted in a different outcome. Given
     the overwhelming evidence presented by the Commonwealth,
     which included eyewitness testimony from the victim’s wife, a
     former paramour of [Appellant], Suarez’s recanted testimony
     would not lead to a different result if a new trial was granted.

PCRA Court Opinion, 10/29/2017, at 12 (record citations omitted).

     We agree. Upon review of Suarez’s affidavit, we discern she did not

recant any trial statements that implicated Appellant in the shooting. Suarez

still identified Appellant’s brother and co-defendant as the shooter. Suarez

now claims that “a thinner guy” was driving the Dodge Magnum. Appellant

contends that at the time of the shooting he was 280 pounds and, therefore,

he was not thin and it could not have been him. Appellant’s Brief at 29. Upon

review, however, the slight deviations from Suarez’s trial testimony as

reflected in her subsequent affidavit would only serve to impeach Suarez at


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trial on minor inconsistent statements.       Moreover, Suarez still claims that

Appellant was at the crime scene when the victim was shot, despite now

claiming that there were additional people present.       Such evidence simply

does not exculpate Appellant or otherwise support Appellant’s claim that the

Commonwealth presented knowingly false evidence at trial.          Moreover, as

discussed at length above, there was additional, overwhelming evidence tying

Appellant to the crimes. For this additional reason, Appellant has failed to

show that the outcome of trial would have been different with Suarez’s

recanted testimony.    Accordingly, the PCRA court did not err in denying

Appellant relief on his second and third claims presented.

      Finally, Appellant argues that effective appellate review was impossible

in this case because the certified record is incomplete. Appellant argues that

“the inventory list of record documents does not reflect that the preliminary

hearing transcript dated May 3, 2010, trial transcript[s] dated May 4 through

10, 2011, PNC Bank ATM photographs dated April 2, 2010, police photo array

dated April 2, 2010, Wine and Spirit video footage dated April 2, 2010, and

PCRA hearing transcript dated July 21, 2017, [were] certified and forwarded

to the appellate court.” Appellant’s Brief at 35.

      We have held:

      Our law is unequivocal that the responsibility rests upon the
      appellant to ensure that the record certified on appeal is complete
      in the sense that it contains all of the materials necessary for the
      reviewing court to perform its duty.

                           *           *             *

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      In the absence of specific indicators that a relevant document
      exists but was inadvertently omitted from the certified record, it
      is not incumbent upon this Court to expend time, effort and
      manpower scouting around judicial chambers or the various
      prothonotaries' offices of the courts of common pleas for the
      purpose of unearthing transcripts, exhibits, letters, writs or PCRA
      petitions that well may have been presented to the trial court but
      never were formally introduced and made part of the
      certified record. If, however, a copy of a document has been
      placed into the reproduced record, or if notes of testimony are
      cited specifically by the parties or are listed in the record inventory
      certified to this Court, then we have reason to believe that such
      evidence exists. In this type of situation, we might well make
      an informal inquiry to see if there was an error in transmitting the
      certified record to this Court. We might also formally remand the
      matter to the trial court to ascertain whether notes of testimony
      or other documentation can be located and transmitted. If a
      remand is necessary, it is appropriate to direct the trial court to
      determine why the necessary documentation was omitted from
      the certified record.

Commonwealth v. Preston, 904 A.2d 1, 7–8 (Pa. Super. 2006).

      Initially, we note that Appellant filed a pro se application to remand the

matter to the PCRA court for the correction and modification of the record with

this Court. By per curiam order entered on November 13, 2017, we denied

Appellant’s request “without prejudice to Appellant’s right to apply directly to

the PCRA court for relief for purposes of viewing, correcting and/or

supplementing the certified record.” Per Curiam Order, 11/13/2017. To date,

we have not received any supplementation of the record. However, because

the PCRA court, the trial court, and this Court on direct appeal cited the various

notes of testimony, we informally located them and incorporated them into

the record. Moreover, despite his claim to the contrary, the Suarez affidavit


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was attached to the second supplemental PCRA petition and contained in the

certified record. Accordingly, our appellate review was unhampered and we

conclude that Appellant is not entitled to relief on his final claim.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/18




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