J-S20024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

ANTOINE BENNETT,

                        Appellant                  No. 1387 WDA 2014


               Appeal from the Order Entered July 28, 2014
           In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0009820-2008


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED MAY 20, 2015

     Appellant Antoine Bennett appeals from the July 28, 2014 order

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

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

     The trial court summarized the facts of the crime as follows:

            The case involved a robbery at knifepoint which occurred
     in the Friendship area of the city of Pittsburgh on February 8,
     2008, at approximately 9:30 p.m. At trial, the Commonwealth
     presented evidence through the victim, investigating police
     officer, and detectives. The case involved the robbery at
     knifepoint of a pizza delivery driver. The victim testified that
     after making a delivery he was getting back into his automobile,
     at which time he was grabbed by the neck and threatened with a
     serrated knife blade.     The perpetrator demanded all of his
     money. The victim was extremely afraid of being seriously hurt
     during this encounter. The perpetrator had a hood and ski mask
     on. Despite this, the victim was able to see his eyes, cheeks,
     eyebrows, the bridge of his nose, and the makeup of his face.
     At a later date, the victim identified the defendant from a photo
     array assembled by the robbery squad detectives. The victim
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       identified the defendant at trial as the person who had robbed
       him.

Trial Court Opinion, 4/20/11, at 2.

       Following a trial on December 14–15, 2009, a jury found Appellant

guilty of a single count of robbery on December 15, 2009.           On March 15,

2010, the trial court sentenced Appellant to five and one-half to eleven years

of incarceration. Appellant filed a timely notice of appeal to this Court, and

we affirmed the judgment of sentence on March 23, 2012. Commonwealth

v. Bennett, 617 WDA 2010, 47 A.3d 1255 (Pa. Super. filed March 23, 2012)

(unpublished memorandum). Our Supreme Court denied Appellant’s petition

for allowance of appeal on November 8, 2012.                 Commonwealth v.

Bennett, 181 WAL (2012), 56 A.3d 396 (Pa. filed November 8, 2012).

       Appellant filed a timely pro se PCRA petition on July 29, 2013, and on

August 6, 2013, the PCRA court appointed counsel, who filed an amended

petition on January 10, 2014.          The PCRA court1 filed a notice of intent to

dismiss the PCRA petition without a hearing on February 25, 2014, and

dismissed the petition on July 28, 2014. Appellant filed a timely notice of

appeal, and the PCRA court directed compliance with Pa.R.A.P. 1925.

Appellant filed a timely Rule 1925(b) statement. The PCRA court filed a two-

paragraph “opinion” referencing its February 25, 2014 order, which
____________________________________________


1
  The PCRA court was not the trial court; the trial judge, the Honorable John
K. Reilly, Jr., passed away September 12, 2011. Commonwealth’s Brief at 6
n.4.



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explained why it intended to dismiss Appellant’s PCRA petition without a

hearing.    PCRA Opinion, 10/20/14, at 1.       The PCRA court found that

Appellant was unable “to make a colorable claim of prejudice. The evidence

that was received by the jury does not cause this [c]ourt to have any

reservations that the jury verdict would have been different had this

material been excluded.” Order, 2/25/14. We agree.

     Appellant raises the following issues in his appellate brief to this Court:

     I. Did the PCRA Court err or abuse its discretion in failing to
     grant Appellant a new trial based on a properly pled, preserved
     and supported IAC claim involving trial counsel’s failure to either
     object, request a mistrial or request a curative instruction
     regarding opinion evidence improperly solicited by the
     Commonwealth from Mr. Francioni, said trial counsel failure
     being prejudicial to Appellant entitling him to relief?

     II. Did the PCRA Court err or abuse its discretion in dismissing
     Appellant’s Petition without an evidentiary hearing where
     Appellant’s claim that trial counsel was ineffective for failing to
     either object, request a mistrial or request a curative instruction
     regarding the opinion evidence presented by Mr. Francioni, was
     not patently frivolous, is supported by evidence of record, and
     where a genuine issue of material fact existed which, if proven,
     would entitle Appellant to relief?

Appellant’s Brief at 5.    We address the issues, which are intertwined,

together.

     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. Rykard, 55 A.3d 1177, 1183 (Pa. Super.

2012).     We grant great deference to the PCRA court’s findings that are

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supported in the record and will not disturb them unless they have no

support in the certified record.       Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      In order to obtain collateral relief, a PCRA petitioner must establish by

a preponderance of the evidence that his conviction or sentence resulted

from one or more of the circumstances enumerated in 42 Pa.C.S. §

9543(a)(2). Instantly, Appellant asserted in his PCRA petition the existence

of ineffective assistance of counsel pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).

To plead and prove ineffective assistance of counsel, a petitioner must

establish: (1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice

resulted from counsel’s act or failure to act. Rykard, 55 A.3d 1177, 1189–

1190 (Pa. Super. 2012).      A claim of ineffectiveness will be denied if the

petitioner’s   evidence   fails   to    meet   any   one   of   these   prongs.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). We reiterate that

counsel’s representation is presumed to have been effective, unless the

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,

1177 (Pa. 1999). Further, we have explained that trial 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).




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      The underlying basis for the allegation of ineffective assistance of

counsel was explained in this Court’s memorandum opinion on direct appeal,

as follows:

      Bennett argues that the trial court erred by allowing testimony
      from a victim, Louis Francioni, about Bennett’s conduct at a
      preliminary hearing.      Specifically, Bennett complains that
      Francioni was allowed to testify that Bennett had engaged in a
      staring match with Francioni, suggesting to the jury that Bennett
      was trying to intimidate Francioni.

                                      * * *

            Prior to the relevant testimony, Bennett’s counsel objected,
      arguing that the testimony was unfairly prejudicial, as Bennett was
      never charged with witness intimidation. The trial court ruled that
      Francioni could testify to the incident, but could not proffer any opinion
      regarding the incident. See N.T., 12/14/2008, at 37. The following
      testimony then occurred:

              Q. Mr. Francioni, we left off where you were in this
              crowded Magistrate’s office.

              A. Okay.

              Q. And I asked you, something happened there?

              A. Yes.

              Q. Can you tell the ladies and gentlemen of the jury when
              you were sitting up front then what happened?

              A. Okay, and one of the detectives said he obviously would
              be eventually coming in; and the defendants would keep
              coming into the courtroom from I guess the courthouse—I
              mean, the jail house; and then once he eventually came
              in, after me sitting there for a good bit of time—

              Q. Did you recognize him?

              A. Right away. Like I just felt like—felt it I [sic] was him,
              like, that’s him.

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           Q. Okay.

           A. And as he proceeded to sit down, with me sitting up
           there, and the other preliminary hearings going on, I guess
           he must have recognized me.

           Q. What did you observe to make you think that?

           A. He started to, like lean into me and like staring me
           down, started to put paper over his face; and it made me
           extremely uncomfortable, constantly covering his face with
           paper, to the point where I started to—I informed the
           detectives after a good 20 minutes of this happening, he
           was told to sit back [sic] would not listen. Then he kept
           doing it. He then was asked about 30 minutes after doing
           it to leave the courtroom.

     Id. at 37-38.

           Bennett first contends that the trial court’s ruling was itself an
     error, as it permitted presentation of unfairly prejudicial evidence that
     was merely cumulative. Bennett argues that once Francioni testified
     that he had identified Bennett, evidence of the staring match added no
     probative value, while creating unfair prejudice.          However, we
     conclude that the testimony was not merely cumulative; Bennett’s
     actions in staring at Francioni at the preliminary hearing allowed for an
     inference that Bennett recognized Francioni as well. Furthermore, it
     was evidence of Bennett’s consciousness of guilt, which was relevant.
     See Commonwealth v. Johnson, 576 Pa. 23, 51, 838 A.2d 663, 680
     (2003).

           Alternatively, Bennett argues that the trial court erred in not
     enforcing its ruling prohibiting Francioni from offering opinion
     testimony. However, Bennett did not object to the alleged opinion
     testimony when it was given; accordingly, this issue is waived. See
     Pa.R.A.P., Rule 302(a), 42 PA. CONS. STAT. ANN. “Even where a
     defendant objects to specific conduct, the failure to request a remedy
     such as a mistrial or curative instruction is sufficient to constitute
     waiver.” Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super.
     2008).

Bennett, 617 WDA 2010 (unpublished memorandum at 2–4).


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     In the direct appeal, this Court clearly determined sub silencio that the

incident described by the victim was relevant to the central issue at trial,

which was Mr. Francioni’s identification of Appellant as the person who

robbed him. Prior to trial, Appellant had filed two Notices of Alibi, one on

November 16, 2009, and one on March 15, 2010.             At trial, Appellant

attempted to show that this was a case of mistaken identity.             N.T.,

12/15/09, at 119.    In that Appellant entered a crowded courtroom and

without any information regarding the victim’s identity and location in the

room, engaged in an intense staring episode, the testimony was relevant to

prove that Appellant recognized Mr. Francioni as the man he had robbed.

     Appellant now asserts that trial counsel was ineffective because she

failed to object to what Appellant characterizes as “opinion testimony,”

assumably referencing the victim’s single statement, “I guess he must have

recognized me.” Appellant’s Brief at 14. Like the PCRA court, we need not

analyze whether counsel’s failure to object to Mr. Francioni’s statement has

arguable merit or counsel’s actions lacked an objective reasonable basis

because prejudice could not have resulted from counsel’s failure to act.

Rykard, 55 A.3d at 1190.      As noted, a claim of ineffectiveness will be

denied if the petitioner’s evidence fails to meet any one of the prongs.

Martin, 5 A.3d at 183.

     “In order to demonstrate a defendant was prejudiced by counsel’s

deficient performance, the defendant must ‘show that there is a reasonable


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probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different.’”               Commonwealth v. Burno, 94

A.3d 956, 976 (Pa. 2014), cert. denied sub nom. Burno v. Pennsylvania,

135 S.Ct. 1493 (2015) (quoting Hinton v. Alabama, 134 S.Ct. 1081, 1089

(2014)); see also Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa.

2014) (to establish prejudice, PCRA petitioner must show that there is a

reasonable probability that the outcome of the proceeding would have been

different but for counsel’s deficient performance). Moreover:

       The PCRA court has discretion to dismiss a petition without a
       hearing when the court is satisfied “‘that there are no genuine
       issues concerning any material fact, the defendant is not entitled
       to post-conviction collateral relief, and no legitimate purpose
       would be served by further proceedings.’” Commonwealth v.
       Roney, 622 Pa. 1, 79 A.3d 595, 604 (2013) (quoting
       Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442
       (2011), quoting Pa.R.Crim.P. 909(B)(2)). “To obtain reversal of
       a PCRA court’s decision to dismiss a petition without a hearing,
       an appellant must show that he raised a genuine issue of fact
       which, if resolved in his favor, would have entitled him to relief,
       or that the court otherwise abused its discretion in denying a
       hearing.” Roney, 79 A.3d at 604–05.

Blakeney, 108 A.3d at 749–750.

       As   the      Commonwealth            points   out,     even     if   Mr.    Francioni’s

characterization of Appellant’s actions was excised from the victim’s

testimony, the facts upon which that conclusion were based undoubtedly

were    sufficient    for   the     jurors    to   have      inferred   it   on    their   own.

Commonwealth’s         Brief   at    19.       Furthermore,      the    victim’s    testimony




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concerning his identification of Appellant was clear, detailed, descriptive, and

unwavering. That testimony is as follows:

      [By the Commonwealth]:

      Q. And with respect to that, the night of February 8, something
      unusual happened to you?

      A. Yes, sir.

      Q. And start with the time. What time and where were you
      delivering pizza? Tell the ladies and gentlemen of the jury.

      A. It was about 9:30ish, at night. I was delivering to Friendship.
      The address was 435 South Graham Street; and as I pulled my
      car up, it was a two-lane street, I parked my car, double parked.
      I put my blinkers on. I had my car sign on. I walked up to the
      building, delivered the pizza, and came back to my car. I was
      just coming back to my car. I opened my door. As soon as I
      opened my door I heard footprints from around another car; and
      as I looked, I saw a hooded figure dressed in all black, white
      lettering on the hood; and I tried to pull my door shut. As I did
      that a hand reached on top of the door pushed onto my neck. At
      that time he demanded all the money. I looked down. I just felt
      a thumb on my neck. I saw the serrated knife blade. At that
      point I was extremely nervous and—sorry.

      Q. Let me stop you right there.

      A. Okay.

      Q. When you realized it was a serrated knife, can you explain as
      best you can remember how long a blade it was? What did it
      look like?

      A. Okay. It was generally like you would find in your kitchen
      maybe, old, rusty, black handled, maybe like a steak knife,
      something like that.

      Q. When it’s pressed against your neck where on your neck if
      you can indicate?




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     A. It was sitting right like this. It was pressed up at the top. I
     did not receive a cut or anything from the blade, but—

     Q. What were you thinking when that was pressed against you?

     A. I was thinking if it were to go in me, I’m going to have some
     major bleeding problems.

     Q. Were you afraid you were going to get seriously hurt?

     A. Yeah, if I did not listen to him.

     Q. What was it that he said to you—

     A. He said—

     Q. —when he opened your door and put the rusty blade to your
     neck?

     A. Give me all your money.

     Q. And what did you do?

     A. I reach[ed] down to my left pocket, grabbed all the money I
     had out, and I handed it to him. He asked me if there was
     anymore. I looked up at him, and I dug into my pocket,
     shuffled? I had khakis on. I shook my pocket. The change
     jingled. I asked him if he wanted that. It was about five
     seconds. Like, it was like a five-second time period before
     anything was said. Then he said, no. Then he just took off
     down the street.

     Q. Now, you indicated that he was wearing all black?

     A. Yes.

     Q. And had a hood on?

     A. Yes.

     Q. Tell the ladies and gentlemen—explain to the ladies and
     gentlemen of the jury what it is that you saw of him. You said it
     took five seconds to answer about the change. They weren’t


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      there. Run through what you were seeing, what you were
      thinking, the look you got of his face.

      A. Okay. After I gave him the money I looked up, saw the ski
      mask which was tightly fitted, a nice ski mask right on the tip of
      his nose, where the hoody would take up, the rest of his face
      was shown; and remembering that when I looked at him, I just
      froze. Looking back, still looking back, you could still see the
      piercing eyes of his face. When I looked back on about that day,
      like, engrained into my head, and I remember looking that he
      was not an unattractive man. I remember thinking that. Just
      that look that he gave me and the way I remembered it the
      whole entire ride back to the pizza shop, how I would not forget
      it.

      Q. Now, you heard defense counsel in their opening mentioning
      that all you saw was eyes. That’s not true, is it?

      A. No. I saw his cheeks, high eyebrows, the make-up of his
      face, the bridge of his nose. I just really remember zoning into
      like that point, zoning into this area of his face . . . .

N.T., 12/14/09, at 29-33.

      Not only did Mr. Francioni describe Appellant’s features in detail, he

recalled Appellant’s piercing eyes, high eyebrows, indeed, the entire make-

up of Appellant’s face, all attributes that so impressed the victim he

described them as unique characteristics he “would not forget.” Id. at 32.

Mr. Francioni’s detailed and certain identification of Appellant tied Appellant

to the robbery, even without considering the victim’s testimony about the

staring incident.   Thus, Appellant cannot carry his burden of showing

prejudice   from    trial   counsel’s     alleged   ineffectiveness.   Accord

Commonwealth v. Wright, 961 A.2d 119, 148 (Pa. 2008) (“When it is

clear the party asserting an ineffectiveness claim has failed to meet the


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prejudice prong of the ineffectiveness test, the claim may be dismissed on

that basis alone, without a determination of whether the first two prongs

have been met.”); see also Burno, 94 A.3d at 977 (claim of ineffectiveness

failed because petitioner did not carry burden demonstrating prejudice).

Thus, we conclude that Appellant has failed to prove ineffectiveness, and the

PCRA court cannot be faulted for dismissing the PCRA petition without a

hearing.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2015




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