J-S36007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 QUINCEY ROSSER,                           :
                                           :
                    Appellant.             :   No. 479 EDA 2017


               Appeal from the PCRA Order, January 12, 2017,
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0015049-2010.


BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                    FILED SEPTEMBER 18, 2018

      Quincey Rosser appeals from the order denying his first petition for relief

pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

      In disposing of Rosser’s direct appeal, this Court summarized the
pertinent facts and procedural history as follows:

            On November 11, 2010, [the victim] was walking to her
         mother’s house when she noticed two men walking behind
         her, who attempted to talk with her. [The victim] ignored
         them. However, one of the men behind her then grabbed
         her and pulled her into an alleyway. The men then displayed
         a knife, threatened to kill her, and began to remove her
         clothes. [The victim] struggled with her assailants, began
         to scream, and managed to escape, fleeing to her mother’s
         home where she called the police.

            Officers William Giulian and Brian Smith of the
         Philadelphia Police responded to the radio dispatch and
         spoke with [the victim], who, although “in an emotional
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        state” and “distraught and crying”, was able to provide a
        description of her assailants.         Officer Giulian then
        communicated the description over the police radio and
        asked for other police units to search the area for anybody
        matching the description. [The victim], along with Officer
        Giulian, then proceeded to drive through the neighborhood
        to see if they could find the assailants, when another police
        unit reported that they had detained some suspects and
        requested [the victim] to be brought to determine if they
        were the perpetrators. [The victim] immediately identified
        one of the suspects, Derrick McLaughlin, as one of her
        assailants, but denied that the second person detained had
        been involved. While [McLaughlin] was being taken to a
        patrol car, he called out to [Rosser], who was standing on
        the street, and who began to run away. The police officers
        pursued [Rosser], and after they apprehended him, [the
        victim] identified him as the second assailant. [Rosser] was
        arrested and was charged with [several crimes, including
        unlawful restraint and indecent assault].

           A three-day jury trial commenced on October 25, 2011,
        at the conclusion of which, on October 27, 2011, the jury
        found [Rosser] guilty of unlawful restraint and indecent
        assault.

           [Rosser] was not sentenced until June 15, 2012, when
        the trial court sentenced him to [an aggregate term of five
        to ten years of imprisonment. Rosser was also designated
        a sexually violent predator, and a lifetime registration
        requirement was imposed on him pursuant to Megan’s Law.]

Commonwealth v. Rosser, 97 A.3d 795 (Pa. Super. 2014), unpublished

memorandum at 1-3. Rosser filed a timely appeal to this Court. On February

7, 2014, we affirmed his judgment of sentence. Id. On July 29, 2014, our

Supreme    Court   denied   Rosser’s    petition   for   allowance   of   appeal.

Commonwealth v. Rosser, 96 A.3d 1027 (Pa. 2014).

     On October 30, 2014, Rosser filed a timely pro se PCRA petition. On

June 4, 2015, the PCRA court appointed counsel, and, on April 28, 2016, PCRA


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counsel filed an amended petition, in which Rosser raised multiple claims of

ineffective assistance of counsel. On August 4, 2016, the Commonwealth filed

a motion to dismiss. On October 7, 2016, the PCRA court issued Pa.R.Crim.P.

907 notice of its intent to dismiss Rosser’s petition without a hearing. Rosser

did not file a response. By order entered January 12, 2017, the PCRA court

dismissed Rosser’s petition. This timely appeal follows. Both Rosser and the

PCRA court have complied with Pa.R.A.P. 1925.

      Rosser raises the following issues in his brief:

         I.    Whether the [PCRA court] erred in denying [Rosser’s]
               petition without a hearing on the issues raised in the
               amended PCRA petition regarding [trial counsel’s]
               ineffectiveness.

         II.   Whether the [PCRA] court erred in not granting relief
               on the PCRA petition alleging [trial counsel] was
               ineffective.

Rosser’s Brief at 8. We will address these claims together.

      Our scope and standard of review is well settled:

         In PCRA appeals, our scope of review is limited to the
         findings of the PCRA court and the evidence on the record
         of the PCRA court's hearing, viewed in the light most
         favorable to the prevailing party. Because most PCRA
         appeals involve questions of fact and law, we employ a
         mixed standard of review. We defer to the PCRA court's
         factual findings and credibility determinations supported by
         the record. In contrast, we review the PCRA court's legal
         conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted). In addition, A PCRA petitioner’s right to an evidentiary



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hearing is not absolute. Commonwealth v. Barbosa, 819 A.2d 81, 85 (Pa.

Super. 2003). Rather, the PCRA court has discretion to dismiss a petition

without a hearing when the court is satisfied that there are no genuine issues

of material fact, the petitioner is not entitled to post-conviction collateral relief,

and no legitimate purpose would be served by further proceedings.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014). To obtain a

reversal of a PCRA court’s decision to dismiss a petition without a hearing, a

PCRA petitioner must show that he has raised a genuine issue of material fact

which, if resolved in their favor, would have entitled him to relief, or that the

court otherwise abused its discretion in denying a hearing. Id.

        Within his second issue, Rosser raises three separate challenges to trial

counsel’s effectiveness. To obtain relief under the PCRA premised on a claim

that counsel was ineffective, a petitioner must establish, 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.     Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.

2009). “Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Id. This requires the petitioner to demonstrate

that:    (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) counsel’s

act or omission prejudiced the petitioner. Id. at 533.




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      As to the first prong, “[a] claim has arguable merit where the factual

averments, if accurate, could establish cause for relief.” Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts

rise to the level of arguable merit is a legal determination.’”      Id. (citing

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).

      As to the second prong of this test, trial counsel's strategic decisions

cannot be the subject of a finding of ineffectiveness if the decision to follow a

particular course of action was reasonably based and was not the result of

sloth or ignorance of available alternatives. Commonwealth v. Collins, 545

A.2d 882, 886 (Pa. 1988).      Counsel's approach must be "so unreasonable

that no competent lawyer would have chosen it." Commonwealth v. Ervin,

766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted).          A petitioner

asserting ineffectiveness based upon trial strategy must demonstrate that the

“alternatives not chosen offered a potential for success substantially greater

than the tactics utilized.” Commonwealth v. Clark, 626 A.2d 154, 157 (Pa.

1993). “We do not employ a hindsight analysis in comparing trial counsel’s

actions with other efforts he [or she] may have taken.” Stewart, 84 A.3d at

707. A PCRA petitioner is not entitled to post-conviction relief simply because

a chosen strategy was unsuccessful. Commonwealth v. Buksa, 655 A.2d

576, 582 (Pa. Super. 1995).

      As to the third prong of the test for ineffectiveness, “[p]rejudice is

established if there is a reasonable probability that, but for counsel’s errors,


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the result of the proceeding would have been different." Stewart, 84 A.3d at

707.    “A reasonable probability ‘is a probability sufficient to undermine

confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899

A.2d 365, 370 (Pa. Super. 2006).

       Finally, when considering an ineffective assistance of counsel claim, the

PCRA court “is not required to analyze these [prongs] in any particular order

of priority; instead if a claim fails under any necessary [prong] of the

ineffectiveness   test,   the   court   may   proceed   to   that   [prong]   first.”

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

In particular, when it is clear that the petitioner has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).                  Counsel

cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

       Here, Rosser first claims that trial counsel was ineffective for failing to

file a motion to suppress his pre-trial identification by the victim. According

to Rosser, the victim’s pre-trial identification of him in this case “was so

unnecessarily suggestive and [conducive] to misidentification as to deny [him]

his due process of law. An evidentiary hearing was necessary on this issue

because [he] has presented a genuine issue of material fact[.]” Rosser’s Brief

at 15. We disagree.


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     With respect to the identification evidence, this Court has summarized:

        The purpose of a “one on one” identification is to enhance
        reliability by reducing the time elapsed after the commission
        of a crime. Suggestiveness in the identification process is
        but one factor to be considered in determining the
        admissibility of such evidence and will not warrant exclusion
        absent other factors. As this Court has explained, the
        following factors are to be considered in determining the
        propriety of admitting identification evidence:           the
        opportunity of the witness to view the perpetrator at the
        time of the crime, the witness’ degree of attention, the
        accuracy of his [or her] prior description of the perpetrator,
        the level of certainty demonstrated at the confrontation, and
        the time between the crime and confrontation.             The
        corrupting effect of the suggestive identification, if any,
        must be weighed against these factors. Absent some
        special element of unfairness, a prompt “one on one”
        identification is not so suggestive as to give rise to an
        irreparable likelihood of misidentification.

Commonwealth v. Wade, 33 A.3d 108, 114 (Pa. Super. 2011) (citation

omitted).

     In disposing of Rosser’s claim, the PCRA court explained:

            Although [Rosser] simply asserts, without sufficient
        specificity, that his identification was unduly suggestive,
        there is, however, nothing in the record to support this
        assertion. Not only did the [victim] promptly report the
        assault, she gave Officer Giulian a description of her
        assailants. Based on these descriptions, two suspects were
        taken into custody, one of whom was exonerated by the
        [victim]. Based on the actions of both [Rosser] and his co-
        defendant, [Rosser] was taken into custody and positively
        identified by the [victim] as the other of her two assailants.
        All of this taking place in less than ten minutes of Officer
        Giulian first encountering the [victim].

           In consideration of the above, even had trial counsel
        pursued a motion to suppress, the Court concludes that
        there would have been no chance of it succeeding. Counsel,


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           therefore, cannot be faulted for his actions and [Rosser] has
           failed to meet his burden.

PCRA Court Opinion, 10/13/17, at 7 (citation omitted).        Our review of the

record supports the PCRA court’s conclusion.

        Before an evidentiary hearing will be granted, a PCRA petitioner “must

set forth an offer to prove at an appropriate hearing sufficient facts upon which

a reviewing court can conclude that trial counsel may have, in fact, been

ineffective.”   Commonwealth v. Begley, 780 A.2d 605, 635 (Pa. 2001)

(quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981).

Rosser made no such proffer. Within his brief, he does not take issue with

any of the relevant factors cited above in Wade, but rather, he asserts that

there was no evidence that he matched the description originally given by the

victim to the police, and that he was merely “sitting on the steps with his

friends doing nothing suspicious or illegal.” Rosser’s Brief at 18.1 Given these

circumstances, the PCRA court did not err in dismissing this ineffectiveness

claim without first holding an evidentiary hearing. See Commonwealth v.

Clark, 961 A.2d 80, 94 (Pa. 2008) (explaining that, in the absence of a

sufficient proffer, a petitioner’s bare assertions would inappropriately convert

an evidentiary hearing into a “fishing expedition” for possible exculpatory

evidence).

____________________________________________


1   Rosser does not claim that the police unlawfully detained him.



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      In his second claim of ineffectiveness, Rosser asserts that trial counsel

failed “to contact and interview witnesses that would have been beneficial to

[his] defense.” Rosser’s Brief at 19.

      Because a decision to call a particular witness implicates matters of trial

strategy,   the   failure   to   call   a   witness   is   not   per   se   ineffective.

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007). Rather, is

the PCRA petitioner’s burden to demonstrate that trial counsel had no

reasonable basis for declining to call a witness to testify. Id. As our Supreme

Court has summarized:

             When raising a claim of ineffectiveness for the failure to
         call a potential witness, a petitioner satisfies the
         performance and prejudice requirements of the Strickland
         test by establishing 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.    To demonstrate Strickland prejudice, a
         petitioner must show how the uncalled [witness’s]
         testimony would have been beneficial under the
         circumstances of the case. Thus, counsel will not be found
         ineffective for failing to call a witness unless the petitioner
         can show that the witness’s testimony would have been
         helpful to the defense.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations

omitted).

      The PCRA Court concluded that Rosser did not meet this burden:

            After a careful review of the record, the Court agrees with
         the Commonwealth that the proposed testimony of Ms.
         Venus Rawls and Ms. Glenda Rosser would have directly

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          contradicted the trial testimony of Ms. Shuray Bosman, thus
          “rendering all accounts incredible.” It cannot be fairly said
          that “the absence of the testimony of the witness was so
          prejudicial as to have denied the defendant a fair trial.”
          [Sneed, supra.] To the contrary, the introduction of such
          contradictory testimony would certainly have been
          prejudicial to the defense.      The Court finds that trial
          counsel’s course of action in not presenting such
          contradictory testimony did not render his assistance
          constitutionally defect.

PCRA Court Opinion, 10/13/17, at 9.

       Our review of the record supports the PCRA court’s conclusions.          At

Rosser’s trial, he presented the testimony of Ms. Bosman, his girlfriend, in

support of his alibi defense. Within his brief, although Rosser claims that the

testimony of these witnesses was “crucial,” he does establish how their

proposed testimony did not conflict with the alibi defense he presented at trial.

Rosser’s Brief at 19.2 Once again, ineffectiveness claims are not self-proving.

See Begley, supra. Thus, the PCRA court did not err in dismissing this claim

without first holding an evidentiary hearing.

       In his final claim, Rosser asserts that trial counsel was ineffective for

failing to file a motion for reconsideration of his sentence.        According to

Rosser, he “suffered actual prejudice as a result of counsel’s failure to file” the

motion because he could not “appeal the sentence to the appellate courts.”

Citing our Supreme Court’s decision in Commonwealth v. Reaves, 923 A.2d
____________________________________________


2  Rosser disagrees with the PCRA court’s conclusion that he did not
substantially comply with 42 Pa.C.S.A. § 9545(d)(1). See Rosser’s Brief at
15. Nevertheless, it is clear that the PCRA court did not dispose of Rosser’s
claim on this basis.


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1119, 1131-32 (Pa. 2007), the PCRA court explained that in order for Rosser

to establish “actual prejudice” he “must establish that there was a ‘reasonable

probability’ that such a motion would have resulted in the reduction of his

sentence.”    PCRA Court Opinion, 10/13/17, at 10.         After reiterating the

reasons it stated previously in support of his sentencing choice, the PCRA court

stated that it found “nothing in the record that would prompt it to even

remotely consider reducing [Rosser’s] sentence.” Id.

      In Reaves, supra, our Supreme Court addressed whether a PCRA

petitioner whose counsel failed to file a motion to reconsider sentence suffered

prejudice. The Superior Court had “summarily concluded” that prejudice was

presumed because counsel’s inaction “effectively waived [Reaves’] right to

challenge this issue on appeal.” Reaves, 923 A.2d at 1123 (citing Reaves,

3190 EDA 2003, unpublished memorandum at 4-5).

      Our Supreme Court disagreed.       Instead, the Court held that a PCRA

petitioner raising a claim of ineffectiveness regarding counsel’s failure to file

a motion for reconsideration must establish actual prejudice. See Reaves,

923 A.2d at 1130. Specifically, the Court held that a PCRA petitioner must

show that filing the motion would have led to a more favorable sentence:

         The Commonwealth argues that the Superior Court’s
         prejudice analysis misses the mark because the panel
         improperly focused on the effect of counsel’s inaction upon
         the [appeal], rather than looking to the outcome of the
         underlying [proceeding] itself.     The Commonwealth is
         correct. Although contemporaneous objections operate to
         preserve issues for appellate review, they serve an equally
         important function in obviating appeals by affording the
         trial court a timely opportunity to correct mistakes and/or

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         to reconsider decisions. Whether [counsel] can be deemed
         ineffective, then, depends upon whether [ a defendant] has
         proven that a motion to reconsider sentence if filed . . .
         would have led to a different and more favorable outcome
         at [sentencing].     In this context, the only way the
         proceeding would have been more favorable would be if
         counsel’s objection secured a reduction in the sentence. The
         Superior Court panel erred as a matter of law in failing to
         appreciate the actual focus of the [actual] prejudice
         standard.

Reaves, 923 A.2d at 1131-32 (emphasis in original; footnote omitted). Our

Supreme Court further concluded that Reaves did not establish actual

prejudice, since “[on] this record, there is no reason to believe that, if only

counsel had asked for a statement of reasons for the sentence at [the time of

sentencing], that statement or explanation alone would have led the court to

reduce the sentence”). Id. at 1132.

      Here, we agree with the PCRA Court that Rosser failed to establish actual

prejudice. Our Supreme Court in Reaves rejected a PCRA petitioner’s claim

of actual prejudice based merely upon counsel’s failure to preserve an

appellate issue. Moreover, although Rosser noted that this was his first adult

offense, that the sentence was “well above the guidelines,” and that he

received consecutive maximum sentences for his crimes, Rosser did not

develop a challenge to the discretionary aspects of his sentence. Compare

Reaves, 923 A.2d at 1132-33 (remanding so that this Court may address

additional claims of ineffective assistance Reaves raised involving the

discretionary aspects of the sentence imposed). Given these circumstances,




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the PCRA court did not err in dismissing Rosser’s final claim of ineffectiveness

without a hearing.3

       In sum, the PCRA court correctly determined that Rosser did not

establish any of his claims of trial counsel’s ineffectiveness, and the PCRA

court properly dismissed his amended PCRA petition without a hearing. We

therefore affirm the PCRA court’s order denying post-conviction relief.

       Order affirmed.

       Judge Dubow joins in this Memorandum.

     President Judge Gantman concurs in the result.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/18




____________________________________________


3 We further note that, Rosser was designated a sexually violent predator
(SVP) in 2012 and his judgment of sentence became final in October 2014,
which predated a panel decision by this Court, on October 31, 2017, finding
the SVP process unconstitutional. See generally, Commonwealth v.
Butler, 173 A.3d 1212 (Pa. Super. 2017). Since that decision was not
retroactive, we need not address Rosser’s SVP designation.



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