J-S77028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

REGINALD EADDY

                            Appellant                    No. 750 EDA 2014


                 Appeal from the PCRA Order February 21, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007273-2009


BEFORE: STABILE, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                            FILED JANUARY 15, 2015

        Reginald Eaddy appeals from the order of the Philadelphia Court of

Common Pleas denying his petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We affirm.

        The trial court found the following facts:

           On January 3, 2009, Deborah Stokes and Karen Broadnax
           were in the basement of Ms. Stokes’ home watching
           television while Ms. Broadnax completed a college term
           paper. At approximately 9:00 p.m., Ms. Stokes heard a
           knock on the side entrance to the basement. After learning
           that it was [Eaddy], Ms. Stokes asked Ms. Broadnax to
           open the door, as she and defendant had been friends for
           about five (5) months. [Eaddy] entered with another,
           unidentified man, and the two men each took a seat at a
           table in the room. Because it was wintertime, the women
           did not pay much attention to the fact that neither [Eaddy]
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S77028-14


       nor the unidentified man removed their gloves after
       entering Ms. Stokes’ home. Approximately thirty (30)
       minutes later, complainant Mikal Ellis entered Ms. Stokes’
       home, mentioning that he had just closed the barber shop
       where he worked. With his car still running outside, Mr.
       Ellis also took a seat at the table with Ms. Broadnax,
       [Eaddy], and the unidentified male, while Ms. Stokes was
       seated on her bed just a few feet away.

       About five (5) minutes later, the unidentified man stood up
       from the table, pointed a gun at the complainants and
       declared[,] “[d]on't nobody f_____g move.” Standing in
       close proximity to everyone, the unidentified man waved
       the gun around the room at each complainant. At the
       same time, [Eaddy] also stood up and picked up items
       from the table.      Fearing for her life, Ms. Broadnax
       attempted to inch away from the table toward the door,
       and [Eaddy] grabbed her by the hood of her sweatshirt,
       saying “[y]ou are not going any f_____g where, nobody is
       going to hurt you.”       Simultaneously, complainant Ellis
       pushed the gunman and ran up the stairs to the first floor
       of Ms. Stokes’ home.         The unidentified man chased
       complainant Ellis, and as [Eaddy] followed in the pursuit,
       he yelled to Mr. Ellis[,] “[n]o don’t run, take that s__t.
       Take that s__t like a man.” When the three men left the
       room, Ms. Stokes and Ms. Broadnax both fled the
       basement through different doors to neighboring homes
       where they called 9-1-1. Upstairs, Mr. Ellis unsuccessfully
       attempted to wrestle the gun away from the unidentified
       man before succumbing to the robbery, in which $800
       cash, his wallet, credit cards and his car keys were stolen.
       Following the robbery, [Eaddy] and the unidentified man
       fled the home through the basement.

       The police arrived within minutes, and accompanied the
       complainants’ reentry to the home. When they entered the
       home, they observed that it had been ransacked, and Ms.
       Broadnax’s house keys and car keys, which had been on
       the table in the area where [Eaddy] was observed picking
       up items, were no longer there. The complainants were
       taken to the police station, where they gave statements to
       the police. As Ms. Stokes knew [Eaddy], she was able to
       provide police with a nickname, cell phone number and
       address information which was subsequently used to
       generate a photographic array. Complainants Broadnax

                                  -2-
J-S77028-14


           and Stokes subsequently identified [Eaddy] from this
           photographic array. Mr. Ellis’ vehicle was recovered a few
           days after the robbery and returned to him, but police
           were unable to recover any fingerprints. Detective Cremen
           secured an arrest warrant on February 5, 2009 and used
           the cell phone number provided by complainant Stokes to
           notify [Eaddy] of the warrant for his arrest. Detective
           Cremen also encouraged [Eaddy] to surrender and on
           February 11, 2009, he did so.

Opinion, 7/2/2012, at 1-3 (citing Trial Court Opinion, 8/15/2011, at 1-3)

(internal citations to the record omitted).

        On August 18, 2010, a jury found Eaddy guilty of three counts of

robbery.1    On September 30, 2010, the trial court sentenced Eaddy to an

aggregate sentence of 20 to 40 years’ incarceration.2 He filed post-sentence

motions, which the trial court denied. Eaddy appealed, raising three claims,

including a claim that the Commonwealth did not present sufficient evidence

to support the robbery convictions. We affirmed his judgment of sentence.

Commonwealth v. Eaddy, No. 601 EDA 2011 (Pa.Super. filed July 2,

2012) (unpublished memorandum).

        On April 2, 2013, Eaddy filed a timely pro se PCRA petition.     On

October 4, 2013, the court held a hearing pursuant to Commonwealth v.
____________________________________________


1
    18 Pa.C.S. § 3701.
2
  The court sentenced Eaddy to 10 to 20 years’ incarceration for each
robbery. The sentence imposed for the second robbery count was to run
concurrent to the sentence imposed for the first count and the sentence
imposed for third robbery count was to run consecutive to the sentence
imposed on the first count.




                                           -3-
J-S77028-14



Grazier,3 and found Eaddy’s decision to proceed pro se was knowing,

voluntary, and intelligent.       Order, 10/4/2013.   On January 10, 2014, the

court issued a notice of its intent to dismiss the PCRA petition without a

hearing pursuant to Pennsylvania Rule of Criminal Procedure 907.             On

February 21, 2014, the court dismissed the PCRA petition.         On March 5,

2014, Eaddy filed a timely notice of appeal. Both Eaddy and the trial court

complied with Pennsylvania Rule of Appellate Procedure 1925.

        Eaddy raises the following issues on appeal:

          I. Whether PCRA Court erred by concluding that direct
          appeal counsel was not ineffective for failure to properly
          challenge the sufficiency of the evidence as to robbery in
          regards to Karen Broadnax and Debora Stokes?

          II. Whether [Eaddy] is entitled to remand to the PCRA
          Court in light of after-discovered evidence?

Appellant’s Brief at 5 (capitalization removed).

        Eaddy’s first issue raises an ineffective assistance of counsel claim.

For ineffectiveness of counsel claims, the petitioner must establish:      “(1)

that the underlying claim has merit; (2) counsel had no reasonable strategic

basis for his or her action or inaction; and (3) but for the errors or omissions

of counsel, there is a reasonable probability that the outcome of the

proceedings would have been different.”          Commonwealth v. Ousley, 21

A.3d 1238, 1244 (Pa.Super.2011) (quoting Commonwealth v. Rivera, 10

____________________________________________


3
    713 A.2d 81 (Pa.1998).



                                           -4-
J-S77028-14



A.3d 1276, 1279 (Pa.Super.2010)). “[C]ounsel is presumed to be effective

and the burden of demonstrating ineffectiveness rests on appellant.”         Id.

“The failure to prove any one of the three [ineffectiveness] prongs results in

the failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).

      On direct appeal, this Court held the Commonwealth presented

sufficient evidence to find Eaddy committed the three robberies. Eaddy, No.

601 EDA 2011, slip. op. at 5-8. Eaddy now claims counsel was ineffective

for failing to present the following arguments in support of the insufficient

evidence claim on direct appeal: (1) Ms. Stokes and Ms. Broadnax were not

placed in fear of immediate serious bodily injury after the gunman chased

Mr. Ellis upstairs because Eaddy did not possess a firearm and, because the

victims did not know the keys were missing, they did not know they were

being robbed; and (2) the trial court incorrectly summarized the facts when

it stated Eaddy began to collect items from the table after the gunman

brandished a firearm. These arguments are meritless.

      A robbery occurs when, during a theft, an attempt to commit a theft,

or the flight after the attempt or commission of a theft, a person threatens

another with or intentionally puts him in fear of immediate serious bodily

injury.   18 Pa.C.S. § 3701(a)(1)(ii), (a)(2).     A person is liable as an

accomplice where, “with the       intent of promoting or facilitating the

commission of the offense, he . . . aids or . . . attempts to aid [another]

person in . . . committing it[.]” 18 Pa.C.S. § 306(c)(1).




                                     -5-
J-S77028-14



       The arguments Eaddy raises in his PCRA appellate brief would not

have    altered   this   Court’s   determination   on   direct   appeal   that   the

Commonwealth presented sufficient evidence to support the finding that

Eaddy was an accomplice to the commission of a robbery. Eaddy, No. 601

EDA 2011, slip op. at 7. Ms. Stokes and Ms. Broadnax were placed in fear of

serious bodily injury the moment the gunman brandished a firearm.                See

Commonwealth v. Gillard, 850 A.2d 1273, 1275-76 (Pa.Super.2004)

(sufficient evidence established bar patrons were placed in fear of serious

bodily injury and supported robbery convictions where defendant waved a

gun at bar patrons, even though defendant only took money from the

register); Commonwealth v. Rivera, 503 A.2d 11, 12-13 (Pa.Super.1985)

(evidence gun was pointed at victims during robbery sufficient to establish

perpetrators could inflict death or serious bodily injury).      This fear did not

disappear merely because the gunman went upstairs.               Further, Eaddy’s

comments and actions supported a determination that he facilitated and

participated in the robbery. See 18 Pa.C.S. § 306(c)(1); Eaddy, No. 601

EDA 2011, slip op. at 7-8.         Eaddy encouraged the gunman, grabbed Ms.

Broadnax to prevent her from leaving, made threatening statements to Ms.

Broadnax and Mr. Ellis, chased Mr. Ellis, and took items from the table

during the robbery. Eaddy, No. 601 EDA 2011, slip op. at 7-8.

       Eaddy also claims counsel was ineffective for failing to correct the trial

court’s inaccurate summation of the facts. Eaddy maintains the statement

that a gun was pointed at the victims while Eaddy collected items from the

                                        -6-
J-S77028-14



table was not based on the testimony.        Appellant’s Brief at 11-12.   We

disagree.

      There was testimony at trial that Eaddy collected items from the table

and testimony that the gunman pointed the gun at the victims. See, e.g.,

N.T., 8/17/2010, at 55-56, 64-65.       It is irrelevant whether these events

occurred simultaneously. See Commonwealth v. Gillard, 850 A.2d 1273,

1275-76 (Pa.Super.2004) (waving gun at bar patrons sufficient to support

conviction even though defendant attempted to take money only from the

register, not patrons); Commonwealth v. Horton, 644 A.2d 181, 184

(Pa.1994) (evidence appellant was with men who shot and robbed victim

and evidence appellant searched pockets sufficient to support robbery

convictions).   Accordingly, Eaddy’s ineffective assistance of counsel claims

lack merit.

      Eaddy’s next claim is that his case should be remanded for a hearing

based on after-acquired evidence in the form of an affidavit from Ms. Stokes

claiming she found Ms. Broadnax’s keys. Appellant’s Brief at 12-13.        This

claim is waived, as it was not raised in Eaddy’s PCRA petition or his 1925(b)

statement. Commonwealth v. Thomas, 744 A.2d 713, 715 n.4 (Pa.2000)

(claims waived when not raised in PCRA petition); Commonwealth v. Hill,

16 A.3d 484, 491 (Pa.2011) (claims waived where not raised in 1925(b)

statement). Further, it lacks merit.

      A defendant is not entitled to a new trial based on after-discovered

evidence, unless the evidence “could not have been discovered until after

                                       -7-
J-S77028-14



the trial despite reasonable diligence, is not used for merely cumulative or

impeachment purposes, and is of such a nature that it would compel a

different outcome.”      Commonwealth v. Albrecht, 720 A.2d 693, 707

(Pa.1998) (quoting Commonwealth v. Scott, 470 A.2d 91, 93 (Pa.1983)).

      Eaddy does not explain why he could not have obtained the affidavit of

Ms. Stokes, a trial witness, prior to the trial. Further, the affidavit claiming

Ms. Stokes found the keys would not have changed the trial’s outcome.

Eaddy encouraged the gunman, threatened the victims, restrained and

chased the victims, and rummaged through the table during the course of

the robbery. Regardless whether the keys were discovered, and regardless

whether Eaddy took the keys, this evidence was sufficient to establish Eaddy

committed the robberies. Eaddy, No. 601 EDA 2011, slip op. at 7 (citing 18

Pa.C.S. § 3701(a)(2)).

      Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/2015




                                     -8-
