J-S85013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA


                       v.

DOMINICK PEOPLES

                             Appellant                      No. 408 EDA 2015


                  Appeal from the PCRA Order January 9, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0312271-2006


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                                 FILED January 13, 2017

        Appellant, Dominick Peoples, appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas, dismissing his timely

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        The relevant facts and procedural history are as follows. After a

dispute over a dice game, Appellant shot and killed Lamar Canada. A jury

convicted    Appellant      of   first-degree   murder,   criminal   conspiracy,   and

possessing instruments of crime (“PIC”).1 The court imposed a life sentence,

and Appellant appealed. In an unpublished memorandum filed on May 7,

2010, this Court affirmed Appellant’s judgment of sentence; thereafter, the

____________________________________________


1
    18 Pa.C.S.A. §§ 2502, 903, and 907, respectively.
J-S85013-16



Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal, and the United States Supreme Court denied certiorari. See

Commonwealth v. Peoples, 4 A.3d 185 (Pa. Super. 2010) (Table), appeal

denied, 12 A.3d 752 (Pa. 2010), cert. denied, 563 U.S. 951, 131 S.Ct. 2131

(2011).

       Appellant timely filed a pro se PCRA petition. The PCRA court

appointed counsel, who filed a “no-merit” letter and petition to withdraw

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The

PCRA court issued Rule 907 notice, granted counsel’s petition to withdraw,

and subsequently dismissed Appellant’s petition without a hearing. Appellant

filed a notice of appeal and complied with Pa.R.A.P. 1925(b).2

       Appellant raises the following issues, which we have rephrased for

clarity and reordered for ease of disposition:

       1. Was trial counsel ineffective for failing to file a pretrial motion
          to preclude the prosecution’s references to other bad acts,
          including unrelated firearms evidence?

       2. Was trial counsel ineffective for failing to file a pretrial motion
          to preclude references to Yahya Abdul-Latif, who did not
____________________________________________


2
   Appellant timely filed a notice of appeal following the PCRA court’s
dismissal. Appellant then filed a pro se “Petition to Remand to Obtain Lower
Court Documents and File Supplemental 1925(b) Statement.” This Court
denied Appellant’s petition, erroneously stating that Appellant’s appeal
involved an untimely PCRA and it lacked jurisdiction to entertain his claim.
Appellant then filed “Appellant’s Application for Panel Reconsideration,”
which this Court granted, and Appellant’s appeal proceeded as follows.



                                           -2-
J-S85013-16


         testify in the case, because such references              violated
         Appellant’s rights under the Confrontation Clause?

      3. Was trial counsel ineffective     for   failing   to   appeal   the
         introduction of autopsy photos?

      4. Did the PCRA court err when it granted PCRA counsel’s
         motion to withdraw because Appellant’s ineffectiveness claims
         lacked merit?

      5. Did the PCRA court err in finding Appellant’s isolated claims
         failed to constitute cumulative error warranting a new trial?

      6. Did the PCRA court err by failing to hold an evidentiary
         hearing on Appellant’s newly discovered evidence claim?

Appellant’s Brief, at 11-13.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “[Our] 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

PCRA court level.”    Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

2012) (citation omitted).

      Counsel is presumed effective; thus, an appellant has the burden of

proving otherwise. See Commonwealth v. Pond, 846 A.2d 699 (Pa. Super.

2004). “In order for Appellant to prevail on a claim of ineffective assistance

of counsel, he must show, by a preponderance of the evidence, ineffective

assistance of counsel which … so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.”


                                    -3-
J-S85013-16



Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(citation omitted).

      To prevail on his ineffectiveness claims, Appellant must plead
      and prove by a preponderance of the evidence three elements:
      (1) the underlying legal claim has arguable merit; (2) counsel
      had no reasonable basis for his action or inaction; and (3)
      Appellant suffered prejudice because of counsel’s action or
      inaction. With regard to the second, i.e., the reasonable basis
      prong, we will conclude that counsel’s chosen strategy lacked a
      reasonable basis only if Appellant proves that an alternative not
      chosen offered a potential for success substantially greater than
      the course actually pursued. To establish the third, i.e., the
      prejudice prong, Appellant must show that there is a reasonable
      probability that the outcome of the proceedings would have been
      different but for counsel’s action or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations and

quotation marks omitted).

      Unlike the harmless error standard, which requires the Commonwealth

to show beyond a reasonable doubt that an error did not contribute to the

verdict, the prejudice standard in an ineffective assistance of counsel claim

requires an appellant to demonstrate that counsel’s course of action

adversely affected the outcome of the proceedings. See Commonwealth v.

Freeland, 106 A.3d 768, 776 (Pa. Super. 2014). While an underlying claim

of error at trial is significant in assessing a claim of counsel’s ineffectiveness,

it is relevant only to the extent that it bears upon the three-part test for

assessing counsel’s ineffectiveness. See Commonwealth v. Gribble, 863

A.2d 455, 472 (Pa. 2004).




                                       -4-
J-S85013-16



      Appellant first argues that his trial counsel rendered ineffective

assistance by failing to move pre-trial to preclude the Commonwealth from

referencing other bad acts evidence. “[T]he admission of evidence is within

the sound discretion of the trial court and will be reversed only upon a

showing that the trial court clearly abused its discretion.” Commonwealth

v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012) (citation omitted).

      It is impermissible to present evidence at trial of a defendant’s prior

bad acts or crimes to establish the defendant’s criminal character or

proclivities. See Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.

Super. 2008). Such evidence, however, may be admissible “where it is

relevant for some other legitimate purpose and not utilized solely to blacken

the defendant’s character.” Commonwealth v. Russell, 938 A.2d 1082,

1092 (Pa. Super. 2007) (citation omitted). The Rules of Evidence specifically

provide that “[e]vidence of other crimes, wrongs, or acts may be admitted

for other purposes, such as proving … intent … identity, absence of mistake,

or lack of accident.” Pa.R.E. 404(b)(2).

      Appellant challenges the introduction of testimony that he gave a “bag

full of guns” to Martin Thomas. N.T., Trial, 2/29/08, at 37. Thomas told

police that Appellant bragged that one of the guns was “dumped into” Lamar

Canada, and police recovered several firearms Appellant left on Thomas’s

property. Id., at 38. Appellant argues that forensic analysis determined the

guns at issue were not used in the murder of Lamar Canada, and evidence

of their existence should have been inadmissible at trial. Appellant does not

                                     -5-
J-S85013-16



contest the admission of his statement to Martin Thomas about shooting the

victim. Appellant contends only that counsel was ineffective for failing to file

a motion to preclude the evidence regarding the guns recovered from

Thomas.

      Instantly, the Commonwealth conceded at trial that ballistics analysis

determined the guns found in Martin Thomas’s backyard were not the guns

used to shoot Lamar Canada. The Commonwealth proposed Appellant had

told Mr. Thomas they were the guns used in order to test Mr. Thomas’s

loyalty. Without commenting on the Commonwealth’s characterization of the

evidence, the trial court found that it was admissible because it showed

Appellant had access to guns.

      In its opinion, the court cites Commonwealth v. DeJesus, 880 A.2d

608 (Pa. 2005), for the proposition that a trial court may properly admit

evidence of a gun conclusively proven not to be the murder weapon for

other purposes. See PCRA Court Opinion, filed 3/9/15, at 8. However, the

court fails to acknowledge the distinct facts in DeJesus supporting the

holding. There, the Commonwealth introduced evidence that the defendant

possessed a shotgun unrelated to the murder in order to show the

defendant’s attempts to evade police custody. See 800 A.2d at 615. Here,

on the other hand, the Commonwealth failed to offer any similarly valid

reason for introducing the testimony about the guns Appellant gave Mr.

Thomas.




                                     -6-
J-S85013-16



      The court also relies on Commonwealth v. Williams, 640 A.2d 1251

(Pa. 1994), for the notion that “evidence of a defendant’s access to the type

of weapon used in a crime – such as a firearm – is a relevant purpose.”

PCRA Court Opinion, filed 3/9/15, at 8. This holding from Williams,

however, was later flatly rejected by our Supreme Court in Commonwealth

v. Christine, 125 A.3d 394 (Pa. 2015). The Commonwealth in Christine

sought to introduce evidence that the defendant possessed a shank, even as

it acknowledged that it was not the shank used in the relevant assault. The

Christine   Court   determined   the    similar-weapon   exception   does   not

encompass cases where the Commonwealth concedes the weapon at issue

was not used in the crime. See id., at 400-401. Here, the Commonwealth

also admitted the firearms Appellant gave Mr. Thomas were tested—and

found unrelated to the murder.

      Appellant’s issue bears greater similarity to Commonwealth v.

Stokes, 78 A.3d 644 (Pa. Super. 2013). In that case, the Commonwealth

introduced evidence of ammunition seized from the defendant’s home. The

ammunition was of a different caliber than the murder weapon, and the

Commonwealth recognized that it was unrelated to the crime. Nevertheless,

the trial court permitted its introduction into evidence. When the defendant

appealed to this Court, the panel determined that while the trial court had

erred in admitting the ammunition, the error was harmless given the

overwhelming amount of other evidence demonstrating the defendant’s

guilt. See id., at 655-656. We find similar reasoning applicable in this case.

                                       -7-
J-S85013-16



      Here, the court permitted the Commonwealth to introduce testimony

that Appellant possessed a “bag of guns,” which he entrusted to Martin

Thomas. The Commonwealth’s ballistics expert testified he compared

Appellant’s firearms to the fired cartridges recovered at the scene, and

determined they were not a match. Thus, the court erred in permitting the

Commonwealth to present evidence of the guns. Consequently, Appellant’s

claim satisfies the first prong of the ineffective assistance test, as it has

arguable merit.

      Since the PCRA court failed to hold a hearing in this case, we are

unable to determine whether counsel had a reasonable basis for his decision

not to object. Despite this, Appellant fails to prove that counsel’s failure to

object to this error constituted actual prejudice to his case given the

overwhelming evidence of his guilt.

      At trial, the Commonwealth presented evidence from eyewitnesses

who identified Appellant as the shooter, as well as witnesses who testified to

a disagreement between Appellant and the victim, Lamar Canada. The

Commonwealth also presented evidence of Mr. Canada’s extensive injuries,

including gunshot wounds indicating that he was shot after he had fallen to

the ground, in order to prove the element of specific intent. Moreover,

Appellant admitted to Martin Thomas that he “dumped” one of the guns into

the victim, and this evidence was properly admitted at trial. Based on the

foregoing, we find Appellant cannot show how counsel’s actions actually




                                      -8-
J-S85013-16



prejudiced his case. Accordingly, Appellant’s first claim of ineffective

assistance of counsel fails.

      Appellant also contests the propriety of the prosecution’s references to

Yahya Abdul-Latif. Appellant claims his counsel erred by failing to seek the

exclusion of any mention of or allusions to Mr. Abdul-Latif, whom police

could not find after his initial interview. Appellant contends the prosecution

created an inference that police were unable to locate Mr. Abdul-Latif

because he was too scared to testify against Appellant. Appellant vigorously

argues that the testimony referring to Abdul-Latif violated Appellant’s right

to confront witnesses against him. Appellant concludes his counsel was

ineffective for failing to object or file a motion to preclude references to

Abdul-Latif.

      Despite his fervent assertions about his rights under the Confrontation

Clause, Appellant fails to show Abdul-Latif was actually a witness against

him. The references to which Appellant now objects consisted of a single

brief exchange, confirming the police had spoken to a witness to the crime

named Yahya Abdul-Latif. The officer testifying at trial also stated the police

were unable to locate Abdul-Latif after he gave his initial statement, despite

searching for him. At trial, counsel for the Commonwealth stated he briefly

elicited this testimony in order to illustrate the attempts made by police to

find additional testifying witnesses. The Commonwealth did not introduce

Abdul-Latif’s statement into evidence, and made no further mention of him

or the substance of his conversation with police. Appellant fails to indicate

                                     -9-
J-S85013-16



how the mere mention of Abdul-Latif served as identification evidence

implying Appellant was the culprit. As a result, Appellant’s issue lacks

arguable merit, and counsel was not ineffective for failing to pursue it.

      Appellant also contends counsel was ineffective for failing to appeal

the admission of the autopsy photographs. Appellant concedes that counsel

objected to the introduction of the photographs at trial and was overruled by

the court. Appellant insists counsel erred by not raising the issue again in

Appellant’s direct appeal, and avers he was prejudiced by counsel’s decision

not to do so. Appellant concludes this Court should grant him a new trial.

      “The viewing of photographic evidence in a murder case is, by its

nature, a gruesome task. But photographs of a corpse are not inadmissible

per se.” Commonwealth v. Hetzel, 822 A.2d 747, 765 (Pa. Super. 2003)

(citation omitted).

      In determining whether photographs [of a decedent] are
      admissible, we employ a two-step analysis. First, we consider
      whether the photograph is inflammatory. If it is, we then
      consider whether the evidentiary value of the photograph
      outweighs the likelihood that the photograph will inflame the
      minds and passions of the jury. Even gruesome or potentially
      inflammatory photographs are admissible when the photographs
      are of such essential evidentiary value that their need clearly
      outweighs the likelihood of inflaming the minds and passions of
      the jurors.

Commonwealth v. Solano, 906 A.2d 1180, 1191-1192 (Pa. 2006).

      Here, the autopsy photographs are not in the certified record. But from

what we can glean from the notes of testimony we have no doubt they were

gruesome and potentially inflammatory to members of the jury. Indeed, the


                                     - 10 -
J-S85013-16



trial court acknowledged the gruesome nature of the photographs in its

discussion with Appellant’s counsel and noted that they could prove

inflammatory to members of the jury. See N.T. Trial 2/28/08, 4-6.

Nevertheless, the photographs constituted a key piece of evidence to the

prosecution’s case and its ability to prove a charge of first-degree murder.

      From the wounds displayed in the photographs, the Commonwealth

was able to show that Appellant continued to fire multiple rounds even after

Mr. Canada had fallen to the ground. This evidence demonstrated a specific

intent to kill, necessary for the jury to convict Appellant of first-degree

murder. See Solano. Moreover, Appellant’s counsel did object to the

introduction of these photographs at trial, but was overruled. For the

aforementioned reasons, the trial court permitted the Commonwealth to

introduce the photographs over objection. Appellant’s counsel cannot be

deemed ineffective for failing to raise a meritless claim on appeal. See

Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012). Accordingly, this

claim warrants no relief.

      We decline to address Appellant’s fourth issue. Based on the question

presented, Appellant’s intent behind raising this issue was to rehash points

made in his first three issues, under the guise of his PCRA counsel’s failure

to pursue those same meritless arguments against Appellant’s trial counsel.

However, Appellant does not explore this issue in his brief. Accordingly,

Appellant’s failure to develop this argument in his brief waives the issue for

our review. See Spotz, 18 A.3d at 282.

                                    - 11 -
J-S85013-16



      In Appellant’s fifth question presented, he argues the prosecution

committed numerous violations of his rights, as explored in previous issues.

Appellant asserts each of these violations prejudiced his case and deprived

him of his right to a fair trial. Appellant maintains that, should this Court fail

to grant him relief on any of his other issues for lack of prejudice, he is

entitled to a new trial based on the cumulative error rule. “Where a claimant

has failed to prove prejudice as the result of any individual errors, he cannot

prevail on a cumulative effect claim unless he demonstrates how the

particular cumulation requires a different analysis.” Commonwealth v.

Hutchinson, 25 A.3d 277, 319 (Pa. 2011) (citations and brackets omitted).

      Instantly, Appellant presented several issues without arguable merit,

in addition to a single issue with arguable merit that failed based on his

inability to prove prejudice. Appellant’s bald claim of cumulative error fails to

assert new grounds for demonstrating prejudice, and we consequently

decline to grant relief on this issue.

      Appellant’s final claim disputes the PCRA court’s decision not to hold

an evidentiary hearing on his newly discovered evidence claim. Appellant’s

“newly discovered evidence” consists of two newspaper articles detailing

Detective Dove’s dismissal from the police force. Dove was an investigating

officer in Appellant’s case who testified at trial. Appellant avers Dove’s firing

for police misconduct, based on allegations Dove concealed evidence from

an unrelated homicide that his girlfriend was involved in, establishes Dove’s

character for extralegal behaviors. Appellant claims without support that

                                         - 12 -
J-S85013-16



Detective Dove forced one of the witnesses in his case to give a statement

identifying Appellant as the shooter. Appellant concludes he is entitled to an

evidentiary hearing on this issue.

      To obtain relief based on after-discovered evidence, appellant
      must demonstrate that the evidence: (1) could not have been
      obtained prior to the conclusion of the trial by the exercise of
      reasonable diligence; (2) is not merely corroborative or
      cumulative; (3) will not be used solely to impeach the credibility
      of a witness; and (4) would likely result in a different verdict if a
      new trial were granted.

Commonwealth v. Montalvo, 986 A.2d 84, 109 (Pa. 2009) (citation

omitted).

      The right to an evidentiary hearing on a post-conviction petition is not

absolute. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.

Super. 2001). It is within the PCRA court’s discretion to decline to hold a

hearing if the petitioner’s claim is patently frivolous and has no support

either in the record or other evidence. See id. It is the responsibility of the

reviewing court on appeal to examine each issue raised in the PCRA petition

in light of the record certified before it in order to determine if the PCRA

court erred in its determination that there were no genuine issues of

material fact in controversy and in denying relief without conducting an

evidentiary hearing. See Commonwealth v. Hardcastle, 701 A.2d 541,

542-543 (Pa. 1997).

      Instantly, Appellant fails to fulfill the requirements for obtaining relief

based on after-discovered evidence. Appellant is unable to show how


                                     - 13 -
J-S85013-16


Detective Dove’s subsequent misconduct bears on Appellant’s own case.

Appellant’s accusations center on alleged threats Detective Dove made to a

witness in Appellant’s case. Appellant does not link these claims of

intimidation to Detective Dove’s later dismissal, save for broad assertions

about Detective Dove’s character. At most, the allegations Appellant touts as

newly discovered evidence constitute impeachment evidence insufficient for

obtaining relief. See Montalvo, 986 A.2d at 109. We therefore conclude

Appellant is due no relief on this claim, and affirm the order denying

Appellant’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2017




                                   - 14 -
