J. A15041/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
BRIAN MAURICE CUNNINGHAM,                 :          No. 1773 MDA 2017
                                          :
                          Appellant       :


                 Appeal from the PCRA Order, October 27, 2017,
                in the Court of Common Pleas of Dauphin County
                Criminal Division at No. CP-22-CR-0003140-2010


BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED AUGUST 03, 2018

        Brian Maurice Cunningham appeals from the October 27, 2017 order

denying his petitions for relief filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

        The relevant facts of this case were set forth in a prior opinion of this

court on direct appeal and need not be reiterated here. See Commonwealth

v. Cunningham, 55 A.3d 123 (Pa.Super. 2012) (unpublished memorandum

at 1-2, quoting trial court opinion, 11/16/11 at 2), appeal denied, 56 A.3d

396 (Pa. 2012). The PCRA court set forth the relevant procedural history of

this case as follows:

              On June 22, 2011, a jury found [appellant] guilty of
              the charges of Robbery, Burglary, Conspiracy,
              Aggravated Assault, and Unlawful Restraint.[1] On

1   18 Pa.C.S.A. §§ 3701(a)(1), 3502(a), 903, 2702, and 2902, respectively.
J. A15041/18


           August 23, 2011, [appellant] was sentenced to an
           aggregate period of 13 to 26 years in a state
           correctional institution, plus fines, costs and
           restitution.      [Appellant] was represented by
           Allen Welch, Esquire [(hereinafter, “trial counsel”)] at
           the trial of this matter.

           On September 22, 2011, a Notice of Appeal was filed
           on [appellant’s] behalf by Bryan DePowell, Esquire
           [(hereinafter, “appellate counsel”)].   [Appellant’s]
           judgment of sentence was affirmed on July 2, 2012,
           and the Supreme Court denied [appellant’s] Petition
           for Allowance of Appeal on [October 31], 2012. [See
           id.] Thereafter, on March 26, 2013, [appellant] filed
           a pro se [PCRA] Petition[.] On April 2, 2013, this
           Court appointed Jennifer Tobias, Esquire to represent
           [appellant] in his PCRA petition.

           Attorney Tobias filed an Amended PCRA Petition on
           behalf of [appellant] on June 17, 2013, requesting
           relief based on several allegations of ineffectiveness
           of counsel. Attorney Tobias later filed an Amended
           PCRA Petition on January 30, 2015 to add a claim that
           [appellant] was sentenced illegally under the
           mandatory minimum statute.               A Hearing was
           subsequently held on April 21, 2015, at which
           testimony was heard regarding [appellant’s] claims
           for ineffective assistance of counsel. On June 12,
           2017, Attorney Tobias filed a second Amended PCRA
           Petition to add a claim that trial counsel was
           ineffective for failing to file for a suppression hearing
           to attempt [to] suppress the victim’s testimony at
           trial.

PCRA court opinion, 10/27/17 at 1-2.

     As noted, the PCRA court entered an opinion and order on October 27,

2017, denying appellant’s PCRA petition.      This timely appeal followed on

November 17, 2017.      On November 21, 2017, the PCRA court directed

appellant to file a concise statement of errors complained of on appeal, in



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accordance with Pa.R.A.P. 1925(b).      Appellant filed a timely Rule 1925(b)

statement on December 11, 2017. On December 13, 2017, the PCRA court

filed a one-paragraph Rule 1925(a) opinion indicating that it was relying on

its rationale set forth in its prior October 27, 2017 opinion.

      Appellant raises a litany of ineffectiveness claims for our review:

            1.    WHETHER COUNSEL WAS INEFFECTIVE FOR
                  FAILING TO FILE A SUPPRESSION MOTION
                  REGARDING    THE   ALLEGED   VICTIM’S
                  TESTIMONY?

            2.    WHETHER COUNSEL WAS INEFFECTIVE FOR
                  FAILING TO CALL AN EXPERT WITNESS TO
                  DISPUTE IN[-] COURT IDENTIFICATION OF THE
                  APPELLANT?

            3.    WHETHER COUNSEL WAS INEFFECTIVE FOR
                  FAILING TO REQUEST A MISTRIAL AFTER
                  IDENTIFICATION BY THE VICTIM?

            4.    WHETHER COUNSEL WAS INEFFECTIVE FOR
                  FAILING TO INVESTIGATE AND INTERVIEW
                  WITNESSES, INCLUDING AN ALIBI WITNESS?

            5.    WHETHER COUNSEL WAS INEFFECTIVE FOR
                  FAILING TO INVESTIGATE THE CASE AND
                  ADEQUATELY PREPARE FOR TRIAL?

            6.    WHETHER  THERE  WAS   PROSECUTORIAL
                  MISCONDUCT DURING TRIAL WHEN THE
                  COMMONWEALTH BRIBED THEIR WITNESS TO
                  TESTIFY?

            7.    WHETHER     APPELLATE  COUNSEL   WAS
                  INEFFECTIVE FOR FAILING TO PROVIDE A
                  SUPPORTING RECORD ON APPEAL?

            8.    WHETHER THE APPELLANT WAS SENTENCED
                  ILLEGALLY?



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Appellant’s brief at 8.2

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants

great deference to the findings of the PCRA court, and we will not disturb those

findings merely because the record could support a contrary holding.”

Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation

omitted). In order to be eligible for PCRA relief, a defendant must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

Further, these issues must be neither previously litigated nor waived.

42 Pa.C.S.A. § 9543(a)(3).

      We begin by addressing appellant’s claim that “[t]here was prosecutorial

misconduct when the Commonwealth bribed their witness[, Xiomara Rivera,]

to testify against [him].” (Appellant’s brief at 22.) Appellant acknowledges

that he failed to raise this claim in his initial PCRA petition or any amendment

thereto but argues he is entitled to relief because it was referenced during the

April 21, 2015 evidentiary hearing. (Id.) We disagree. Under the PCRA, “an

issue is waived if the petitioner could have raised it but failed to do so before




2 For the purposes of our review, we have elected to address appellant’s claims
in a different order than presented in his appellate brief.


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trial, at trial, during unitary review, on appeal[,] or in a prior state

postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). Accordingly, because

appellant failed to raise this issue on direct appeal, he is not entitled to relief

on this claim. See, e.g., Commonwealth v. Ford, 809 A.2d 325, 329 (Pa.

2002) (holding that petitioner’s claims of trial court error, constitutional error,

and prosecutorial misconduct, which could have been raised on direct appeal

but were not, were waived under the PCRA), certiorari denied, 540 U.S.

1150 (2004).

      Appellant also argues that his judgment of sentence of 13 to 26 years’

imprisonment imposed pursuant to the mandatory minimum sentencing

statute, 42 Pa.C.S.A. § 9712, violated the Supreme Court’s mandate in

Alleyne v. United States, 570 U.S. 99 (2013).3 (Appellant’s brief at 24.) In

support of this contention, appellant cites Commonwealth v. Newman, 99

A.3d 86, 103 (Pa.Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa.

2015), wherein this court found that Alleyne renders the mandatory

minimum sentencing provision set forth in Section 9712.14 unconstitutional.

(Appellant’s brief at 24-25.) Contrary to appellant’s contention, courts in this

Commonwealth have recognized that Alleyne and its progeny do not apply


3 In Alleyne, the Supreme Court held that the Sixth Amendment requires that
“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that
must be submitted to the jury and found beyond a reasonable doubt.”
Alleyne, 570 U.S. at 103 (citation omitted).

4 Section 9712.1 concerns sentences for certain drug offenses committed with
firearms.


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retroactively to cases on collateral review.            See Commonwealth v.

Washington, 142 A.3d 810, 814-815 (Pa. 2016) (holding that the Alleyne

decision does not apply retroactively to collateral attacks upon mandatory

minimum        sentences      advanced     in    PCRA   proceedings);    see    also

Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa.Super. 2015) (stating

that, “while this Court has held that Alleyne applies retroactively on direct

appeal, we have declined to construe that decision as applying retroactively

to cases during PCRA review”).           Accordingly, appellant’s sentencing claims

fails.

         Appellant’s remaining six claims concern the ineffectiveness of his trial

and appellate counsel.        To prevail on a claim of ineffective assistance of

counsel under the PCRA, a petitioner must plead and prove by a

preponderance of the evidence that counsel’s ineffectiveness “so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence      could   have    taken   place.”     42 Pa.C.S.A.   §   9543(a)(2)(ii).

Specifically, a petitioner must establish the following three factors: “first[,]

the underlying claim has arguable merit; second, that counsel had no

reasonable basis for his action or inaction; and third, that [a]ppellant was

prejudiced.” Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super.

2014), appeal denied, 104 A.3d 523 (Pa. 2014) (citation omitted).

“[C]ounsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”        Commonwealth v. Ousley, 21 A.3d



                                           -6-
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1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487

(Pa. 2011).

      Appellant first argues that trial counsel was ineffective in failing to file a

motion to suppress the victim’s testimony.       (Appellant’s brief at 13.)     The

record reflects that appellant failed to include this specific allegation of trial

counsel’s ineffectiveness in his court-ordered Rule 1925(b) statement.

Likewise, appellant’s contention that “[a]ppellate counsel was ineffective for

failing to provide a supporting record on appeal” was also absent from the

Rule 1925(b) statement. (Id. at 23.) Accordingly, these claims are waived.

See Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (stating, “[a]ny

issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived;

the courts lack the authority to countenance deviations from the Rule’s

terms[.]” (citation omitted)).

      Appellant next argues that trial counsel “was ineffective for failing to call

an expert witness at trial to dispute the in[-]court identification of [appellant]”

by the victim. (Appellant’s brief at 14.) This claim is meritless. As recognized

by the PCRA court, at the time of appellant’s jury trial in June 2011, “expert

testimony regarding witness identification was prohibited, as it intruded upon

the jury’s basic function of determining credibility.”      (PCRA court opinion,

10/27/17 at 3, citing Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014).)

It is well settled that trial counsel cannot be found ineffective for failing to

raise or pursue meritless claims.     See Commonwealth v. Freeland, 106



                                       -7-
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A.3d 768, 778 (Pa.Super. 2014) (stating, “it is axiomatic that [trial] counsel

will not be considered ineffective for failing to pursue meritless claims.”

(citation omitted)). Accordingly, this ineffectiveness claim fails.

      In a related claim, appellant further argues that trial counsel was

ineffective for failing to request a mistrial after the victim identified him at

trial. (Appellant’s brief at 16.) For the following reasons, we disagree.

      A motion for mistrial is a matter addressed to the discretion of the court,

and “[a] trial court need only grant a mistrial where the alleged prejudicial

event may reasonably be said to have deprived the moving party of a fair and

impartial trial.”    Commonwealth v. McCamey, 154 A.3d 352, 355

(Pa.Super. 2017) (citations omitted).

      Here, trial counsel testified at the April 21, 2015 hearing that he had no

reasonable basis to request a mistrial in this case:

            Q.      Did you feel just, listening to the testimony, that
                    it was something that you could have done to
                    better represent [appellant], request a mistrial?

            A.      I don’t believe that a mistrial would have
                    changed anything. I don’t believe I would have
                    been granted a mistrial. And as has been noted,
                    there was -- there was no legal right to have an
                    expert to challenge the identification process at
                    that time. The -- I thought the victim has been
                    tentative, had been impeached sufficiently. I
                    felt we had done everything that we could do
                    with that identification issue. And I didn’t see
                    anything to gain by asking for a mistrial, which
                    I wouldn’t have gotten anyway.

Notes of testimony, 4/21/15 at 68.



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      The PCRA court, in turn, addressed this this claim in its October 27,

2017 opinion and concluded that appellant did not suffer any prejudice by trial

counsel’s inaction. Specifically, the trial court reasoned as follows:

            [T]here is no evidence that [appellant] suffered
            prejudice as a result of his counsel’s failure to request
            a mistrial.     At the original trial, [trial counsel]
            immediately objected to the identification testimony
            and requested that it be stricken. A discussion was
            held at sidebar, and the Court denied [trial counsel’s]
            Motion to Strike the testimony, determining that the
            identification could be tested by cross-examination.
            Given this Court’s denial of the Motion to Strike, this
            Court also would have denied any request for a
            mistrial. “A trial court need only grant a mistrial
            where the alleged prejudicial event may reasonably
            be said to have deprived the moving party of a fair
            and impartial trial.” [Commonwealth] v. Tharp, []
            830 A.2d 519, 532-533 (Pa. 2003)[, certiorari
            denied, 541 U.S. 1045 (2004).] Since a mistrial
            would not have been granted, [appellant] suffered no
            prejudice as a result of his trial counsel’s failure to
            request same.

PCRA court opinion, 10/27/17 at 4.

      Following our careful consideration, we find that trial counsel’s and the

PCRA court’s conclusions are supported by competent evidence. As appellant

has failed to satisfy both the reasonable basis and prejudice prongs of the

ineffectiveness test, his claim warrants no relief. See Charleston, 94 A.3d

at 1020.

      Appellant’s   final   two   claims   concern    trial   counsel’s   purported

ineffectiveness for failing to properly investigate this case or “adequately

prepare for trial.” (Appellant’s brief at 21.) Specifically, the crux of appellant’s



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argument is that trial counsel “was ineffective for failing to investigate and

interview witnesses, including an alibi witness[, Karielis Colon.]”        (Id. at

18-21.) We disagree.

      A claim that counsel was ineffective for failing to investigate potential

witnesses or call them to testify at trial requires a petitioner to establish that:

             (1) the witness existed; (2) the witness was available
             to testify for the defense; (3) counsel knew of, or
             should have known of, the existence of the witness;
             (4) the witness was willing to testify for the defense;
             and (5) the absence of the testimony of the witness
             was so prejudicial as to have denied the defendant a
             fair trial.

Commonwealth v. Matias, 63 A.3d 807, 810-811 (Pa.Super. 2013)

(en banc) (citation omitted), appeal denied, 74 A.3d 1030 (Pa. 2013).

      Here, the record reflects that trial counsel testified at great length at the

April 21, 2015 hearing on his general strategy with regard to presenting alibi

witnesses:

                   It varies by what’s being presented to me. If
                   somebody looks at me and says I have alibi
                   witnesses and here they are, and they’re listing
                   two or three alibi witnesses, I’m gonna look at
                   it a little more conscientiously than when
                   somebody tells me that their girlfriend or their
                   wife can act as an alibi for where they were two
                   or three years before.

                   If you -- it’s a difference. But you find out what
                   it is the witness is going to say. Then you have
                   to make a determination in your own mind of
                   whether or not based on your experience that’s
                   something that might fly with the jury.




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                  I’ve had very good success with alibi witnesses
                  when people can come in and give me, say, four
                  people who could testify as to what they were
                  doing    at    9:15    on   Thursday       night,
                  December 23rd, because on that particular
                  night they were all together at grandmother’s
                  birthday party or at some specific family event.

                  Alibi witnesses can be real good if you’re talking
                  about a 4th of July family reunion or something,
                  or when you’ve been on a vacation together,
                  something like this. Because when you have
                  those things, there’s a reason for the person to
                  have that date in their mind and a reason to
                  have that event in their mind.

                  When somebody comes in and just says he
                  couldn’t have done it, he was with me two years
                  ago, and when they haven’t said anything
                  throughout that period of time to anybody at all
                  until well after the period of credibility is passed,
                  I think it’s less likely that that’s going to be
                  acceptable to a jury.

Notes of testimony, 4/21/15 at 74-75.          Trial counsel further noted that in

preparing a defense for a client, his general practice is to “review discovery,

study discovery, [and] get ready to go to trial.” (Id. at 74.)

      Trial counsel testified that he did not specifically recall speaking with

either appellant or Colon regarding Colon’s willingness to testify as an alibi

witness and denied ignoring Colon’s repeated attempts to contact him via text

message. (Id. at 69-70, 76-77.) Trial counsel further opined that it was his

belief “that what was being said by the witnesses in those police reports was

sufficient to make the case triable,” and in any event, he would have forgone




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calling Colon as an alibi witness given the concerns he had with her credibility.

(Id. at 70, 76.)

            Q.     So you were indicating right now that if you had
                   talked to [Colon] you probably would have not
                   have put her on the stand based on --

            A.     Based on what I’ve heard here today. Because
                   the experience that we have is you put the
                   witness on the stand, they testify, and then it’s
                   specific -- more specifics that the prosecution
                   wants to hear. What were you doing with him?
                   Who was --

            ....

            A.     So there’s a good bit of time that has passed,
                   and it’s always been my belief that offering an
                   alibi witness who’s deemed to be incredible by
                   a jury is a major mistake. If they don’t believe
                   that witness, now they start to believe not only
                   might the person be guilty but person is taking
                   the steps to have loved ones come in to
                   fabricate stories. And from a juror’s point of
                   view, that well might be where they end up
                   accepting anything that you’re offering. So I
                   tend not to do that.

Id. at 72-73.

      “[G]enerally, where matters of strategy and tactics are concerned,

counsel’s assistance is deemed constitutionally effective if he chose a

particular course that had some reasonable basis designed to effectuate his

client’s interests.”   Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa.

2012). “If counsel’s chosen course had some reasonable basis, the inquiry

ends and counsel’s assistance is deemed effective.”        Commonwealth v.

Williams, 899 A.2d 1060, 1064 (Pa. 2006). Based on the foregoing, we find


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that trial counsel had a reasonable strategic basis for electing not to call Colon

as an alibi witness and appellant was not prejudiced by her failure to testify.

Accordingly, appellant has failed to satisfy the second and third prongs of the

ineffectiveness test, and his claim must fail. See Charleston, 94 A.3d at

1020.

        More importantly, the record reflects that Colon testified at length at the

April 21, 2015 evidentiary hearing, and the PCRA court specifically found her

testimony to be not credible. (See PCRA court opinion, 10/27/17 at 5-6.)

        For all the foregoing reasons, we affirm the October 27, 2017 order of

the PCRA court.

        Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 08/03/2018




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