J-S37010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    JAMAL HATCHER                               :
                                                :
                       Appellant                :   No. 3607 EDA 2016

                 Appeal from the PCRA Order October 28, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0006133-2010


BEFORE:      OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                                 FILED AUGUST 03, 2018

       Appellant, Jamal Hatcher, appeals pro se from the order entered on

October 28, 2016, dismissing his first petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       We briefly summarize this case as follows. On July 10, 2011, a jury

convicted Appellant of attempted murder, aggravated assault, conspiracy,

possessing an instrument of crime, and three related firearms offenses. On

September 9, 2011, the trial court sentenced Appellant to 30 to 60 years of

imprisonment.        We affirmed Appellant’s judgment of sentence on June 5,

2013. See Commonwealth v. Hatcher, 2013 WL 11262133 (Pa. Super.

2013) (unpublished memorandum).1               On March 17, 2014, Appellant filed a

pro se PCRA petition and thereafter retained counsel, who filed an amended

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1   That decision provides a detailed recitation of the facts of this case.


*    Former Justice specially assigned to the Superior Court.
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PCRA petition. Appellant, however, was not satisfied with retained counsel

and counsel later asked to withdraw. The PCRA court appointed PCRA counsel

who filed an amended PCRA petition on August 26, 2015.                     Thereafter,

Appellant requested that he be permitted to proceed pro se and the PCRA

court    granted    the   request    after     conducting   a   hearing   pursuant   to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (“When the waiver of

the right to counsel is sought during PCRA review, an on-the-record

determination should be made that the waiver is knowing, intelligent, and

voluntary.”).      On July 13, 2016, Appellant filed a pro se amended PCRA

petition.   The PCRA court heard arguments and, on September 23, 2016,

issued notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s

various PCRA petitions and amendments. On October 28, 2016, the PCRA

court denied Appellant relief. This timely appeal followed.2

        On appeal, Appellant presents the following pro se issues for our review:

        1. Did the PCRA court err in denying relief in light of affidavit
           evidence substantiating that trial counsel was ineffective for
           failing to litigate a motion to suppress and object to an in-court
           identification at trial, which was the result of a pretrial live
           line[-]up identification [that was] suggestive, unreliable, and
           conducive to misidentification?

        2. Did the PCRA court err in denying relief in light of
           newly-discovered     evidence  substantiating   that    the
           [C]ommonwealth violated [A]ppellant’s due process rights by
           presenting false testimony and fabricated evidence at trial,


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2  Appellant filed a pro se notice of appeal on November 8, 2016. The PCRA
court issued an opinion pursuant to Pa.R.A.P. 1925(a) on February 16, 2017.

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          which so undermined the truth-determining process that no
          reliable adjudication was possible?

       3. Whether [A]ppellant has been denied effective review because
          of the loss and/or failure to certify and transmit essential
          portions of transcripts, exhibits, and affidavits necessary for
          the determination of the issues raised on appeal?

       4. Did the PCRA court abuse its discretion by denying
          [A]ppellant’s recusal motion without explanation, where Code
          of Judicial Conduct Canons and due process mandate recusal
          from a proceeding in which a jurist[’s] impartiality might be
          reasonably questioned?

Appellant’s Brief at 6 (footnote and suggested answers omitted).

       Upon review of the various PCRA filings in this matter, we initially

conclude that Appellant has waived his second issue because his claim that

the Commonwealth presented false and/or fabricated evidence at trial could

have been raised on direct appeal, but was not.3 See 42 Pa.C.S.A. § 9544(b)

(“an issue is waived if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal or in a prior state

post-conviction proceeding”); Commonwealth v. Price, 876 A.2d 988,

992-993 (Pa. Super. 2005) (same), appeal denied, 897 A.2d 1184 (Pa. 2006),

cert. denied, 549 U.S. 902 (2006). In addition, Appellant waived appellate

issues three and four by failing to present them to the PCRA court in the first

instance.    See Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006)

(“[A]n issue is waived where it was not presented in the original or amended

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3 Appellant’s effort to support his second claim with an affidavit prepared after
the PCRA court denied relief does not alter our assessment since the PCRA
requires a petitioner to plead and prove that an allegation of error has not
been waived. See 42 Pa.C.S.A. § 9543(a)(3).

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PCRA petition[s] below.”); see also Pa.R.A.P. 302(a). As such, we will not

address issues two, three, and four as set forth above.

      In the lone issue we address, Appellant claims that trial counsel was

ineffective for failing to file a motion to suppress the victim’s identification of

Appellant and, subsequently, for not objecting to the victim’s in-court

identification of him. Appellant’s Brief at 15-22. Appellant claims that the

victim failed to identify Appellant or his co-defendant when police showed him

a photo array of potential suspects at the hospital 24 hours after the shooting.

Id. at 15. He suggests that the victim’s girlfriend, who knew Appellant and

co-defendant, influenced the victim to choose Appellant as the perpetrator

during a police line-up.    Id.   Appellant also maintains that police unduly

suggested that Appellant was the shooter by showing the victim still

photographs from a nearby bank and video surveillance from the Wine and

Spirits liquor store. Id. at 16. Appellant claims that because the victim only

personally observed his assailant for eight seconds while fleeing, the victim

did not have an opportunity to independently witness the criminal act and,

thus, the victim’s subsequent “identifications were based on [the victim’s]

improper exposures to [Appellant], rather than [from the victim’s] memories

of the crime.” Id. at 17-18.      Appellant also relies upon an alleged affidavit

from Maisie Suarez, one of the eyewitnesses, who now claims that neither




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Appellant nor his co-defendant was the shooter.4 Id. at 20. In sum, Appellant

claims that the victim’s identification of Appellant was tainted and trial counsel

was ineffective for failing to move to suppress the identification prior to trial

or object to the identification at trial.

       Our standard of review of the denial of a PCRA petition is

       limited to examining whether the record evidence supports the
       court's determination and whether the court's decision is free of
       legal error. This Court grants great deference to the findings of
       the PCRA court if the record contains any support for those
       findings. If the record supports a post-conviction court's
       credibility determination, it is binding on the appellate
       court.     A PCRA court's  legal  conclusions,   however,     are
       reviewed de novo.

                               *                *              *

       The      law      presumes counsel has        rendered     effective
       assistance.           When          asserting        a         claim
       of ineffective assistance of counsel, the petitioner is required to
       plead and prove: (1) the underlying claim has arguable merit;
       (2) counsel had no reasonable strategic basis for his action or
       inaction; and (3) but for the errors and omissions of counsel, there
       is a reasonable probability that the outcome of the proceedings
       would have been different.


Commonwealth v. Moriarty, 180 A.3d 1279, 1284–1285 (Pa. Super. 2018)

(internal citations and quotations omitted). “Failure to satisfy any prong of

the    test    for    ineffectiveness          will   result       in   rejection   of   the




____________________________________________


4 Because the affidavit is dated January 18, 2017, after the PCRA court ruled
on the PCRA filings, we may not consider it. See Jones, supra; see also
Pa.R.A.P. 302(a).

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appellant's ineffective assistance of counsel claim.”     Commonwealth v.

Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (citation omitted).

      Regarding in-court identification testimony:

      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
      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.

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

citations and quotations omitted).

      Here, the PCRA court determined:

      [Appellant] cannot demonstrate a reasonable probability that the
      verdict would have been different had counsel filed a pretrial
      motion to suppress [the victim’s] identification. Indeed there
      were other witnesses who identified [Appellant] as the shooter, as
      well as surveillance footage showing the same. [… The victim]
      testified at trial that he was 100% certain that the man who stood
      over him, in broad daylight, and shot him was [Appellant,] Jamal
      Hatcher.         Thus, an independent basis for the in-court
      identification was clearly established and a motion to suppress the
      identification would have been an exercise in futility. […] Here,
      [Appellant] cannot show that there was a reasonable probability
      that the trial outcome would have been different had counsel filed
      a pretrial motion to suppress the victim’s identification of him.

PCRA Court Opinion, 2/16/2017, at 3.

      Upon review of the record and applicable law, we agree with the PCRA

court’s assessment.     In this case, the victim testified unequivocally that


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Appellant was the shooter and that he was able to see him standing over him

firing a weapon during daylight hours. As such, the PCRA court determined

that the victim had ample opportunity to observe his attacker at the time of

the crime and demonstrated complete certainty at the confrontation of

Appellant. We will not disturb the PCRA court’s findings.

      Moreover, there was additional overwhelming evidence of Appellant’s

guilt admitted at trial such that there was no probability that the outcome of

trial would have been different without the victim’s identification.    In fact,

Appellant conceded that “[t]he Commonwealth presented six eyewitnesses to

the crime.”   Appellant’s Pro Se Amended PCRA Petition, 7/13/2016, at 12

(emphasis added).    Several of the eyewitnesses were able to identify the

vehicle that Appellant and his brother, the co-defendant, used to flee the crime

scene.   Appellant’s brother and mother were the registered owners of the

vehicle and the registration listed their address, which was where Appellant

also resided. The Commonwealth also presented surveillance from a nearby

bank and the liquor store where the victim’s girlfriend worked. With such

evidence presented, Appellant fails to show he suffered prejudice. As such,

his sole reviewable issue on appeal does not merit relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/3/18




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