J-S32002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

RAYMONT WALKER,

                         Appellant                   No. 2019 WDA 2013


            Appeal from the Order Entered November 25, 2013
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0006204-2007


BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 24, 2015

      Appellant, Raymont Walker, appeals from the November 25, 2013

order denying his petition filed pursuant to the Post Conviction Relief Act

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

      We previously summarized the facts of the crime and partial

procedural history in our disposition of Appellant’s direct appeal, as follows:

            Kendall Dorsey (“Dorsey”) testified that on
            December 23, 2006, while sitting on the front porch
            with his friend, Kevin Harrison (“Harrison”), he saw
            co-defendant Terrill Hicks (“Hicks”) shooting at him
            and at Harrison. Dorsey saw [Appellant], who was
            fifteen-years old, standing with Hicks.        Dorsey
            scurried into the house and avoided injury, but
            Harrison was shot and killed shortly thereafter.

                  Dorsey testified that a few days earlier, he was
            at his friend John McDonald’s (“McDonald”) house.
            He heard a knock on the door. Another friend,
            Michael Harris (“Harris”), answered the door.
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          Immediately, Hicks attempted to pull Harris out of
          the house. The attempt was unsuccessful, as Harris
          was able to close the door. Dorsey testified that he
          went upstairs, looked out a window and observed
          [Appellant] and Hicks in the street holding pistols.

                Dorsey testified that he encountered Hicks the
          following day, the day before the shooting. Hicks
          said that he had been robbed, and that he thought
          that Dorsey, Harris and Harrison did it. Dorsey said
          he did not rob Hicks.

                 The next day, the day of the murder, Dorsey
          testified that Hicks and [Appellant] drove up to
          Dorsey and Harrison, while they were walking a dog.
          Hicks and [Appellant] exited the car, and [Appellant]
          said, “Where is Mike Harris at?” Dorsey observed
          that both Hicks and [Appellant] had weapons.
          Dorsey and Harrison lied, denying that they knew
          Harris’s location, and eventually, Hicks and
          [Appellant] got back into their car, a white Impala,
          and left.

                Dorsey testified that he and Harrison
          immediately returned to Harrison’s house, where
          Harris was. Dorsey noticed the white Impala circling
          the house, the same car in which he had just seen
          Hicks and [Appellant].       He safely entered the
          residence, but eventually went outside to the front
          porch with Harrison to smoke a cigarette. Dorsey
          told Harris not to join them on the porch because “he
          was looking for him.”         Hicks and [Appellant]
          approached the house. Hicks fired approximately
          ten shots, killing Harrison.

                McDonald testified similarly to the incident at
          his house. McDonald said that he encountered Hicks
          at a gas station the day before Hicks came to his
          house. McDonald said Hicks was upset because he
          had been robbed. Hicks did not know who had
          robbed him.

               McDonald said that, on the following day, Hicks
          attempted to forcibly remove Harris from McDonald’s

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           home when Harris answered the door. The day
           after, Hicks and [Appellant] came to his house again.
           By that point, Hicks had become convinced that
           Harris, Harrison and a third individual nicknamed
           “Dee” had robbed him. Hicks told McDonald that he
           was looking for the people that he thought had
           robbed him, and if Hicks found them, either they
           would get hurt or someone would die. [Appellant]
           added that what the robbers had done “wasn’t cool”
           and that he “was going to ride with Hicks,” his best
           friend. McDonald, an army sergeant with eight years
           of military experience, recognized the gun Hicks was
           carrying as a “Glock 45.”

     Trial Court Opinion, 1/3/11, at 2–5. Harrison, who was shot
     three times, died from a gunshot wound to his head.

            After his arrest, [Appellant] filed a Motion to transfer the
     matter from the common pleas court to the juvenile court, and a
     Petition for Habeas Corpus—Petition to Quash the Information,
     which the trial court denied. At the jury trial of [Appellant] and
     his co-defendant, Hicks, the trial court granted [Appellant’s]
     Motion for judgment of acquittal of the charge of second-degree
     murder. Ultimately, the jury convicted [Appellant of one count
     each of first-degree murder, criminal attempt (homicide),
     possession of a firearm by a minor, criminal conspiracy, and two
     counts of aggravated assault].1
           1
               The jury also convicted Hicks of similar charges.

           [Appellant] filed a “Post-Sentence Motion”, but filed the
     Motion prior to sentencing. [Appellant’s] Motion challenged the
     weight and sufficiency of the evidence.        Before ruling on
     [Appellant’s] Motion, the trial court sentenced [Appellant]. For
     his conviction of first-degree murder, the trial court sentenced
     [Appellant] to life in prison. For his conviction of criminal
     attempt (homicide), the trial court sentenced [Appellant] to a
     consecutive prison term of 10-20 years. For his conviction of
     aggravated assault, the trial court sentenced [Appellant] to a
     consecutive prison term of 30-60 months.         The trial court
     imposed no further sentence for the remaining convictions.

           The trial court granted [Appellant] leave to amend his
     “Post-Sentence Motion,” but [Appellant] filed no amended

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      motion. Thereafter, the trial court denied [Appellant’s] Post-
      Sentence Motion, after which Appellant filed [a] timely appeal
      and a court-ordered Concise Statement of matters complained of
      on appeal pursuant to Pa.R.A.P. 1925(b).

Commonwealth v. Walker, 1667 WDA 2010, 48 A.3d 490 (Pa. Super.

2012) (unpublished memorandum at 1–4) (citations to the record omitted).

      This Court affirmed the judgment of sentence on April 30, 2012.

Walker, 1667 WDA 2010 (unpublished memorandum at *19).                 Appellant

filed a pro se PCRA petition on July 30, 2012.          The PCRA court appointed

counsel, who filed an amended petition on January 7, 2013. The PCRA court

held a hearing on May 31, 2013. Following the court’s notice of its intent to

dismiss the PCRA petition, Appellant filed a response, a petition to stay, and

a request to amend.     The PCRA court denied the petition to stay, motion to

amend, and the petition for post-conviction relief on November 25, 2013.

Appellant filed a notice of appeal to this Court on December 20, 2013. Both

the trial court and Appellant complied with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

        I.   Did the lower court err when it denied Raymont Walker’s
             PCRA petition, as he currently serves a sentence the
             Supreme     Court    of   the    United    States deemed
             unconstitutionally  cruel and unusual, and whose
             prohibition must be applied retroactively?

       II.   Did the lower court err when it denied Raymont Walker’s
             PCRA     petition,   as    he    received    constitutionally
             impermissible ineffective assistance of cou[n]sel?

Appellant’s Brief at 4 (full capitalization omitted).




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      When reviewing the propriety of an order granting or denying PCRA

relief, this Court is limited to determining whether the evidence of record

supports the conclusions of the PCRA court and whether the ruling is free of

legal error.   Commonwealth v. Perez, 103 A.3d 344 (Pa. Super. 2014).

We grant great deference to the PCRA court’s findings that are supported in

the record, Commonwealth v. Rachak, 62 A.3d 389 (Pa. Super. 2012),

and will not disturb them unless they have no support in the certified record.

Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014), appeal

denied, 95 A.3d 277 (Pa. 2014).

      Appellant’s first issue poses a purely legal question; thus, our review

of the PCRA court’s determination in that regard is plenary and de novo.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).             “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.” Id.

      Appellant argues that he is entitled to a new trial based upon Miller v.

Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012). He acknowledges that our

Supreme Court determined that the holding in Miller does not apply

retroactively to an inmate, such as Appellant, convicted as a juvenile, who is

serving a sentence of life imprisonment without the possibility of parole and

who has exhausted his direct appeal rights and is proceeding under the

PCRA.    Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert.


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denied, ___ U.S. ___, 134 S.Ct. 2724 (2014).             He asserts that the

Pennsylvania Supreme Court was “misguided,” its decision was “erroneous,”

and the High Court “simply erred in determining the Miller Rule is

nonretroactive under the current standards.”      Appellant’s Brief at 24, 28.

Thus, Appellant argues that Cunningham “must be overturned.” Id. at 29.

      Relying upon our Supreme Court’s decision in Cunningham, the PCRA

court rejected Appellant’s claim that Miller does not provide him with relief

and dismissed his claim as without merit. PCRA Court Opinion, 10/24/14, at

5. We agree.

      “This Court is bound by existing precedent under the doctrine of stare

decisis and continues to follow controlling precedent as long as the decision

has not been overturned by our Supreme Court.”            Commonwealth v.

Reed, 107 A.3d 137, 143 (Pa. Super. 2014) (citing Commonwealth v.

Slocum, 86 A.3d 272, 278 n.9 (Pa. Super. 2014)). Indeed, the Reed Court,

while acknowledging that “different courts have reached substantially

differing conclusions on the retroactive application of Miller,” stated that

“this does not alter our analysis of the state of the law in the Commonwealth

of Pennsylvania.” Reed, 107 A.3d at 143. Our Supreme Court has noted

that the doctrine of stare decisis “promotes the evenhanded, predictable,

and consistent development of legal principles, fosters reliance on judicial

decisions, and contributes to the actual and perceived integrity of the judicial




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process.” Pennsylvania State Association of County Commissioners v.

Commonwealth, 52 A.3d 1213, 1230 (Pa. 2012).

     Moreover, it goes without saying that this Court may not overrule our

Supreme Court. See, e.g., Fiore v. White, 757 A.2d 842, 847 (Pa. 2000)

(a court decision remains law unless it is reversed by a court of greater

jurisdiction or overruled by a court of equal jurisdiction).   “It is not the

prerogative of an intermediate appellate court to enunciate new precepts of

law or to expand existing legal doctrines. Such is a province reserved to the

Supreme Court.”     Peters v. Nat'l Interstate Ins. Co., 108 A.3d 38, 47

n.12 (Pa. Super. 2014); Commonweath v. Boyd, 941 A.2d 1, 7 (Pa.

Super. 2007). As we have stated:

     [T]his court has a “duty and obligation to follow the decisional
     law of the Supreme Court of Pennsylvania.” Commonwealth v.
     Shaffer, 557 Pa. 453, 734 A.2d 840, 844 n.6 (1999). “The
     primary role of the Superior Court is to apply existing law
     to the cases that come before us. It is not our function to
     attempt reversing viable Supreme Court rulings....”

Commonwealth v. Foley, 38 A.3d 882, 892–893 (Pa. Super. 2012)

(emphasis added).    Thus, in reliance upon the applicable precedent of our

Supreme Court, we reject Appellant’s claim.

     Appellant’s second issue is actually three separate claims of ineffective

assistance of counsel.   A PCRA petitioner alleging ineffectiveness of his

counsel will be granted relief only if he is able to prove that, “in the

circumstances of [his] particular case,” the truth-determining process was

undermined to the extent “that no reliable adjudication of guilt or innocence

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could have taken place.”   42 Pa.C.S. § 9543(a)(2)(ii).    The law presumes

that counsel was effective, and it is the petitioner’s burden to prove the

contrary.   Perez, 103 A.3d at 348.     To prevail on a claim of ineffective

assistance of counsel, a PCRA petitioner must plead and prove by a

preponderance of the evidence that: (1) the underlying legal claim has

arguable merit; (2) counsel had no reasonable basis for acting or failing to

act; and (3) the petitioner suffered resulting prejudice. Commonwealth v.

Baumhammers, 92 A.3d 708, 719 (Pa. 2014) (citing Commonwealth v.

Pierce, 527 A.2d 973, 975–976 (Pa. 1987)).       A petitioner must prove all

three factors of the Pierce test or the claim fails.      Commonwealth v.

Busanet, 54 A.3d 35, 45 (Pa. 2012). In addition, on appeal, a petitioner

must adequately discuss all three factors of the Pierce test, or the appellate

court will reject the claim.   Commonwealth v. Reyes-Rodriguez, 111

A.3d 775, 780 (Pa. Super. 2015) (citing Commonwealth v. Fears, 86 A.3d

795, 804 (Pa. 2014)). Moreover:

      to satisfy the prejudice prong, it must be demonstrated that,
      absent counsel’s conduct, there is a reasonable probability that
      the outcome of the proceedings would have been different.
      Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa.
      Super. 2014). If it has not been demonstrated that counsel’s act
      or omission adversely affected the outcome of the proceedings,
      the claim may be dismissed on that basis alone, and the court
      need not first decide whether the first and second prongs have
      been met.

Perez, 103 A.3d at 348.




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      Appellant   first    contends   that   trial   counsel   was   ineffective   for

withdrawing a motion in limine, which he suggests precluded review of the

issue that there were no eyewitnesses in this case. Appellant’s Brief at 31.

Originally, at the pretrial stage, this case was assigned to a different judge

than the trial judge.      N.T. (PCRA), 5/21/13, at 12.        Appellant had filed a

motion in limine on February 3, 2010, in which he sought to preclude the

Commonwealth from presenting identification testimony of eyewitness

Kendall Dorsey.   Motion in Limine, 2/3/10; Appellant’s Brief at 31–32.            In

addressing the motion at a hearing on February 4, 2010, the pretrial court

asked defense counsel, “Is there case law that says the District Attorney’s

Office is not allowed to supplement on a habeas on a preliminary hearing?”

N.T., 2/4/10, at 4.       When defense counsel responded in the negative, the

pretrial court denied the motion. Id. Defense counsel advised the pretrial

court that he wanted to address the motion before the trial judge who would

be assigned to the case, so he advised, “Your Honor, I will withdraw my

motion in limine before this court—. . . and file it before the new trial judge.”

Id. at 5.

      Upon raising the issue of the denial of the motion in his direct appeal,

this Court held the issue to be waived. N.T. (PCRA), 5/31/13, at 14. This

Court noted that Appellant failed to direct our attention to the place in the

record where he renewed the motion to the trial court; as there was “no

ruling before this Court for review,” we determined that Appellant was


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entitled to no relief. Walker, 1667 WDA 2010 (unpublished memorandum

at *15).

     At the PCRA hearing, trial counsel testified that he “thought” he

presented the motion to the new trial court but stated, “I really can’t

remember.” N.T. (PCRA), 5/31/13, at 13. Appellant argued in the amended

PCRA petition and asserts on appeal that the failure to present the motion in

limine to the trial court constituted ineffective assistance of counsel.

Appellant’s Brief at 33. The PCRA court rejected the claim stating, “Having

failed in his first attempt at a motion in limine, and presenting no evidence

as to why the same motion would be granted before this [c]ourt, this [c]ourt

cannot find counsel ineffective for failing to raise a meritless claim.” PCRA

Court Opinion, 10/24/14, at 8.

     We agree with the Commonwealth that Appellant cannot demonstrate

prejudice on this issue.   Here, the jury convicted Appellant on sufficient

evidence of record. Indeed, this Court determined on direct appeal that the

evidence at trial was sufficient to sustain all of Appellant’s convictions.

Walker, 1667 WDA 2010 (unpublished memorandum at *5–6).             The fact

that the Commonwealth did not present eyewitness identification testimony

relating to Appellant at the preliminary hearing is of no moment.       See

Commonwealth v. Lee, 662 A.2d 645, 650 (Pa. 1995) (Commonwealth’s

failure to establish prima facie case at preliminary hearing was immaterial




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where it subsequently met burden of proof at trial). Our Supreme Court has

stated:

      We need not consider whether or to what extent the pre-trial
      evidence here was sufficient . . . . Any claims of inadequacy
      Appellant alleges with respect to pre-trial matters have been
      rendered moot by the “subsequent independent judicial
      judgment” confirming the existence of the aggravating
      circumstance in this case. Commonwealth v. Ballard, 501 Pa.
      230, 460 A.2d 1091, 1092 (1983). See also Commonwealth v.
      Lee, 541 Pa. 260, 662 A.2d 645, 650 (1995) (deeming moot
      defendant’s claims that preliminary hearing judge should have
      recused himself, as well as the claim that the evidence failed to
      establish probable cause, where defendant ultimately was found
      guilty by a jury); Commonwealth v. McCullough, 501 Pa. 423,
      461 A.2d 1229, 1231 (1983) (concluding that Commonwealth’s
      failure to establish prima facie case at preliminary hearing was
      immaterial where Commonwealth subsequently met its burden
      of proof beyond a reasonable doubt at trial). Because a jury
      determined that Appellant killed Mr. Sementelli while in the
      perpetration of a felony, Appellant is not entitled to relief on her
      [pretrial] claim . . . .

Commonwealth v. Walter, 966 A.2d 560, 565 (Pa. 2009). We conclude

the issue lacks merit.

      Moreover, Appellant cannot now show prejudice from the failure to

present the motion in limine at trial. In affirming the judgment of sentence,

we relied on the trial court opinion and rejected a claim challenging the

sufficiency of the evidence.       Walker, 1667 WDA 2010 (unpublished

memorandum at *8). In that opinion, the trial court referenced eyewitness

testimony, presumably that of Kendall Dorsey, who was the subject of the

motion in limine and who placed Appellant with the shooter at the time of

the murder. Trial Court Opinion, 1/3/11, at 3. We credited the trial court’s


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opinion, in which the trial court stated that the witness’s “statements

regarding the shooting were corroborated by other witnesses and physical

evidence.” Id. at 6. Thus, if the motion in limine in question would have

been offered at trial, and if it had been granted, the trial court stated that

the witness’s testimony regarding the shooting was corroborated by other

witnesses and evidence, id., and we affirmed this finding on direct appeal.

Walker, 1667 WDA 2010 (unpublished memorandum at *8).                  As counsel

cannot show that any alleged ineffectiveness of counsel in failing to re-offer

the motion prejudiced Appellant, the claim of ineffectiveness must be

rejected. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).

      Appellant’s second claim of trial counsel ineffectiveness underscores

counsel’s failure to file a notice of alibi and failure to call Appellant’s mother,

Pearl Price, as an alibi witness at trial. Appellant’s Brief at 34. This issue

was discussed at length at the PCRA hearing. N.T. (PCRA), 5/31/13, at 24–

27. At that hearing, trial counsel acknowledged that he spoke to Ms. Price

on multiple occasions, that she was present at trial, and that she made a

statement that Appellant was present with her around the time of the

murder. Id. at 24–25. Trial counsel testified as follows:

      We investigated this case for probably I think two, maybe three
      years before it went to trial, every time I spoke with Miss Price it
      was a different story: We were at the mall. We were at a
      Christmas party. We were at another party. We were at a
      church. Holy Family or something to that extent.

            And in a trial, especially when identification is the sole
      issue, the crux of the case, the last thing you want is an alibi

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      witness to come up here who is shaky in her recollection as to
      what the events were.

            I spoke to [Appellant] numerous times . . . . I said I want
      you to be sure that this is what you want to do. He said, no, I
      don’t want to call her because I don’t know what she is going to
      say.

Id. at 26–27.

      The PCRA court rejected the issue based on trial counsel’s testimony.

PCRA Court Opinion, 10/24/14, at 6. The court stated:

      Counsel noted inconsistencies in both the prospective witness’[s]
      testimony and her willingness to testify. Counsel did not believe
      she would be an effective witness and that she would not hold
      up well to cross-examination. As such, counsel made a reasoned
      decision based on his strategy.

Id. As trial counsel testified to a reasonable basis for not calling Ms. Price as

a witness, he cannot be found to be ineffective. Commonwealth v. Reed,

42 A.3d 314, 324 (Pa. Super. 2012), appeal denied, ___ A.3d ___ (Pa.

2015) (“If a reasonable basis exists for the particular course, the inquiry

ends and counsel’s performance is deemed constitutionally effective.”).

Thus, we reject this contention.

      Lastly, Appellant maintains that trial counsel was ineffective for failing

to request a jury instruction pursuant to Commonwealth v. Kloiber, 106

A.2d 820 (Pa. 1954). Appellant’s Brief at 39. The PCRA court rejected the

claim, holding:

      In Commonwealth v. Kloiber, the Pennsylvania Supreme Court
      stated:




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              Where the witness is not in a position to clearly
              observe the assailant, or he is not positive as to
              identification, or his positive statements as to
              identity are weakened by qualifications or by failure
              to identify defendant on one or more prior occasions,
              the accuracy of the identification is so doubtful that
              the Court should warn the jury that the testimony as
              to identity must also be received with caution.

      106 A.2d 820 (Pa. 1954). The instruction is not mandated if the
      identification by the witness is unequivocal, consistent, and
      independently based. Commonwealth v. Johnson, 615 A.2d
      1322, 1336 (Pa. Super. 1992).

            Appellant has failed to establish that a Kloiber instruction
      was warranted. The witness failed to waiver in his testimony
      regarding identification, despite the best efforts of counsel on
      cross-examination. The testimony of record established that the
      witness was able to clearly observe Appellant and his co-
      defendant. As a Kloiber jury instruction was not indicated by the
      facts of this case, it was not ineffective assistance of counsel not
      to request such a charge.

PCRA Court Opinion, 10/24/14, at 7.

      A Kloiber charge instructs the jury that an eyewitness’s identification

should be viewed with caution where the eyewitness: (1) did not have an

opportunity    to   clearly view   the    defendant; (2)   equivocated on     the

identification of the defendant; or (3) had a problem making an identification

in the past. Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa. Super.

2008). None of those circumstances existed in this case.

      Appellant’s claim is based on his assertion that trial counsel failed to

request that the jury be instructed to receive Kendall Dorsey’s identification

testimony with caution, pursuant to Kloiber.       Appellant’s Brief at 39.    At

trial, Kendall Dorsey testified that on the evening of the shootings, he was

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sitting on the porch of victim Kevin Harrison’s house. N.T. (Trial), 4/27/10–

5/3/10, at 104–105. Mr. Dorsey observed Terrill Hicks walking down Hays

Street, fifty feet away. Id. at 107. After the first shot was fired, Mr. Dorsey

looked toward the direction it came from—the alleyway across the street

between the residences at 311 and 309 W. 13th Avenue—and saw Mr. Hicks

firing a gun at Mr. Harrison’s house with Appellant standing beside him. Id.

at 108–109, 164–166, 175, 179. The area where Mr. Hicks and Appellant

stood was illuminated by Christmas lights from the surrounding residences,

and it was a clear, warm night for that time of year. Id. at 174, 179, 285–

286, 299. Additionally, Allegheny County Police Detective Thomas De Felice

testified that Mr. Harrison and Mr. Dorsey had an unobstructed view of the

shooter.   Id. at 327–328, 332.      This evidence clearly was sufficient to

establish that Mr. Dorsey had the opportunity to observe Appellant.

      Under these circumstances, Appellant was not entitled to a Kloiber

instruction.   Identification testimony need not be received with caution

where it is positive, unshaken, and not weakened by a prior failure to

identify. Commonwealth v. Upshur, 764 A.2d 69, 77 (Pa. Super. 2000).

Thus, any such request would have been denied.         As trial counsel is not

ineffective for failing to assert a meritless claim, Commonwealth v. Roney,

79 A.3d 595, 604 (Pa. 2013), the PCRA Court properly dismissed this

contention.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




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