J-S78026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

SHAUN EDWARD KIMMEL

                            Appellant                       No. 359 WDA 2016


                  Appeal from the PCRA Order February 3, 2016
             In the Court of Common Pleas of Westmoreland County
               Criminal Division at No(s): CP-65-CR-0001950-2012


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                FILED NOVEMBER 23, 2016

        Shaun Edward Kimmel1 appeals pro se2 from the order entered

February 3, 2016, in the Court of Common Pleas of Westmoreland County,

that    denied his first petition        for   collateral relief,   filed pursuant   to

Pennsylvania’s Post Conviction Collateral Relief Act (PCRA), 42 Pa.C.S. §§

9541–9546.       Kimmel was sentenced to serve a term of three to six years’

incarceration, after he was convicted by a jury of three counts of delivery of

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    Kimmel’s first name also appears in the record as “Shawn.”
2
  The PCRA Court granted appointed counsel’s request for leave to withdraw
after counsel filed a no-merit letter. See Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc).
J-S78026-16



a controlled substance, three counts of possession of a controlled substance

with intent to deliver, and three counts of possession of a controlled

substance.3     Kimmel contends (1) appellate counsel was ineffective during

the direct appeal stage in failing to preserve or argue to this Court the issues

identified in the Pa.R.A.P. 1925(a) statement, i.e., the insufficiency of the

evidence and the admission of hearsay testimony, and (2) appellate counsel

was ineffective in failing to preserve and argue in this Court the issue of

whether the trial court erred in permitting the Commonwealth to introduce

hearsay evidence at trial.          See Kimmel’s Brief at 5.   Based upon the

following, we affirm on the basis of the PCRA court’s sound opinion.

        Briefly, we note the charges against Kimmel arose from his delivery of

heroin to a confidential informant (CI) on three separate occasions. Each

delivery involved a controlled purchase by the CI from Kimmel and each

purchase was observed and monitored by police.

        Following sentencing, Kimmel filed a direct appeal, and this Court

affirmed the judgment of sentence on February 12, 2014. Commonwealth

v. Kimmel, 97 A.3d 802 [651 WDA 2013] (Pa. Super. 2014) (unpublished

memorandum) (finding sole claim challenging the weight of the evidence

waived for failure to present to trial court and include in the Rule 1925(b)

statement).


____________________________________________


3
    See 35 P.S. § 780-113(a)(30) and (a)(16).



                                           -2-
J-S78026-16



       On August 25, 2014, Kimmel filed a pro se PCRA petition.         Counsel

was appointed and filed an amended PCRA petition on September 14, 2015.

An evidentiary hearing was held on October 20, 2015.            Subsequently, on

November 15, 2015, appointed counsel filed a no-merit letter and requested

leave to withdraw.           On January 13, 2016, the PCRA court issued

Pa.R.Crim.P. 907 notice of intent to dismiss. On February 3, 2016, the PCRA

court dismissed the petition, and granted appointed counsel’s request to

withdraw. This timely appeal followed.4

       The principles that guide our review are well settled:

       Under the applicable standard of review, we determine whether
       the ruling of the PCRA court is supported by the record and is
       free of legal error. We apply a de novo standard of review to the
       PCRA court’s legal conclusions.

                                           ****

       With respect to Appellant’s claims of ineffective assistance of
       appellate counsel, we begin with the presumption that counsel is
       effective. To prevail on an ineffectiveness claim, Appellant must
       satisfy, by a preponderance of the evidence, the performance
       and prejudice standard set forth in Strickland v. Washington,
       466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This
____________________________________________


4
  We note Kimmel filed a pro se notice of appeal that is time-stamped March
4, 2016. We also note Kimmel’s notice of appeal and brief in support of
appeal were mailed from prison in an envelope post-marked March 1, 2016.
According to the prisoner mailbox rule, an appeal will “be deemed ‘filed’ on
the date that the appellant deposits the appeal with prison authorities and/or
places it in the prison mailbox.” See Commonwealth v. Jones, 700 A.2d
423, 426 (Pa. 1997).




                                           -3-
J-S78026-16


      Court has divided the performance component of Strickland
      into two subparts dealing with arguable merit and reasonable
      strategy. … Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
      973, 975-77 (Pa. 1987). With regard to “reasonable basis” in the
      appellate context, “[i]t is well settled that appellate counsel is
      entitled, as a matter of strategy, to forego even meritorious
      issues in favor of issues he believes pose a greater likelihood of
      success.” To establish Strickland/Pierce prejudice in the
      appellate representation context, the petitioner must
      show that there is a reasonable probability that the
      outcome of the direct appeal proceeding would have been
      different but for counsel's deficient performance.

      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.’” “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.”

Commonwealth v. Blakeney, 108 A.3d 739, 749-50 (Pa. 2014) (some

citations omitted) (emphasis added).

      In his first issue, Kimmel contends counsel was ineffective on direct

appeal because she failed to argue either of the issues raised in the

Pa.R.A.P.   1925(b)   statement   —    namely,   the   circumstantial   evidence

presented by the Commonwealth was insufficient to support Kimmel’s

convictions, and the trial court erred in permitting the trial court to introduce

hearsay evidence at trial — and argued a weight claim that this Court found

to be waived.    Kimmel posits that appellate counsel’s failures completely

foreclosed appellate review. In this regard, Kimmel contends that appellate


                                      -4-
J-S78026-16


counsel’s ineffectiveness was equivalent to the failure to file a brief, and as

such, he is entitled to a presumption of prejudice.      In his second issue,

Kimmel argues that appellate counsel was ineffective in failing to preserve

and argue that the trial court erred in admitting out-of-court statements of

identification by the CI in violation of the hearsay rule, Pa.R.E. 803.1(2).

See Kimmel’s Brief at 9.

      The PCRA judge, the Honorable Rita Donovan Hathaway, has authored

an opinion that cogently rejects, inter alia, the two arguments raised in this

appeal.   See PCRA Court Pa.R.A.P. 1925(a) Opinion, 6/6/2016, attaching

Order of Court and Notice of Intent to Dismiss, 1/13/2016, at 1–10, and 12

(finding: (1) counsel’s failure to pursue on appeal every claim requested by

a defendant is not per se ineffectiveness, and Kimmel must satisfy the

Pierce ineffectiveness test; trial court had determined in its Rule 1925(a)

opinion that there was a plethora of evidence to support Kimmel’s conviction

and same facts support the notion that the jury verdict was not against the

weight of the evidence; Kimmel’s weight of the evidence claim fails under all

three prongs of the ineffectiveness test, and (2) Kimmel’s hearsay challenge

to Sergeant Fiscarella’s testimony with respect to the August 14, 2011

controlled buy, regarding the CI’s identification of Kimmel by looking at a J-

NET photograph, fails under the prejudice prong; although admission of such

evidence was error because CI was not present at trial and did not testify,

see Pa.R.E. 803.1(2), the error was harmless, given the testimony of police


                                     -5-
J-S78026-16


about identifications made shortly after the controlled buys and credible in-

court identifications of Kimmel). Our review confirms that further discussion

by this Court is not warranted here.           Accordingly, we affirm the denial of

PCRA relief on the basis of the PCRA court’s able opinion.5

       Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2016




____________________________________________


5
  In the event of further proceedings, we direct the parties to attach a copy
of the PCRA Court’s Pa.R.A.P. 1925(a) Opinion, 6/6/2016, attaching Order of
Court and Notice of Intent to Dismiss, 1/13/2016, to this memorandum.




                                           -6-
                                                                                 Circulated 11/01/2016 03:50 PM




         IN THE COURT OF COl\™ON PLEAS OF \VESTMORELAND                            COUNTY,
                     PENNSYLVANIA - CRIMINAL DIVISION


  COMMON\VEALTH          OF PENNSYLVANIA                 )
                                                         )
                         vs.                             )
                                                         )         No.   1950 C 2012
        SHAUN EDWARD KIMMEL                              )
                                                         )
                                          Defendant.     )


                              STATEMENT OF THE COURT
                        ISSUED PURSUANT TO PA.R.A.P. RULE 1925


                AND NOW, this         &    day of June, 2016, it appearing to this Court that the

 Defendant filed a Notice of Appeal from this Court's denial of Defendant's Petition for Post-

 Conviction Relief dated February 3, 2016, the reasons for said decision appear in this Court's

Opinion dated dated January 13, 2016. A copy of that Opinion is attached hereto for reference.




ATTEST:




c.c.   File
       John Petrush, Esq., Assistant District Attorney
       Shaun Edward Kimmel, Defendant
                D.O.C. #KY7015, Unit/Side: JIB,
               SCI Albion, 10745 Route 18, Albion, PA 16475-0002
       Pamela Neiderheiser, Esq., Court Administrator's Office
      IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
                PF-NNSYLV ANIA - CRIM I NAL DIVISION




COMMONWEALTH OF PENNSYLVANIA                          )
                                                      )       No.     1950 C 2012
                    -vs.-                             )
                                                      )
        SHAUN EDWARD KIMMEL,                          )
                           Defendant.                 )


                               ORDER OF COURT AND
                            NOTICE OF INTENT TO DISMISS


       ANO NOW, this /.Jday of January, 2016, upon consideration of the Defendant's

pro-se Petition for Post-Conviction Relief filed pursuant to the Post-Conviction Relief Act.

(42 Pa.C.S. §9541, et. seq). and upon consideration of the No Merit Letter submitted by

James Robinson, Esq., court-appointed PCRA Counsel for the Defendant (a copy of which

has been attached to this Order) and upon a review of the record in this case, it appears to this

Court that that there may be no genuine issue of material fact, no entitlement to relief and no

purpose to be served in further proceedings for the following reasons:

               The Defendant, Shaun Edward Kimmel, was convicted of nine counts of

violations of the Controlled Substance, Drug, Device and Cosmetic Act arising from three

separate sales of heroin. He was sentenced on March I, 2013 to a period of three to six years

incarceration, with credit for lime served, and was deemed to be RRR[ eligible. Defendant

filed his Notice of Appeal to the Pennsylvania Superior Court on March 28, 2013. The

Pennsylvania Superior Court affirmed this Court's Judgment of Sentence on March 28, 2014.
      Defendant   timely filed a pro-se Petition for Post Conviction Relief on August 25, 2014.

      Defense counsel James Robinson, Esq., filed a No-Merit Letter on November 16, 2015, and

     requested leave to withdraw as counsel.



     FACTUAL HISTORY

             The evidence presented at trial established that Defendant. Shaun Edward Kimmel

     ("Defendant") delivered heroin lo a confidential informant on three separate occasions. Each

     occasion involved a controlled purchase of heroin by the confidential informant, (hereinafter

     "CI"), from Defendant that was monitored and observed by law enforcement authorities. On

     each occasion. the Cl was strip searched to verify that the Cl had no controlled substances or

    money on his/her person. On each occasion, the CI was provided with pre-recorded currency

    with which lo conduct the transaction. Finally, an undercover police officer accompanied the

    Cl on each of the three occasions.

            The first controlled buy was conducted on June 12, 2011 in the parking lot of the J&L

    Trailer Park in Derry Township, Westmoreland County. Chief John Berger of the Ligonier

    Borough Police Department testified that he, as the undercover officer, and the CJ, who had

    been strip-searched and provided with money, drove to the parking lot of the trailer park. He

    testified that he saw Defendant exit his trailer, walk to the driver's side of the vehicle in

    which the CI and Berger were traveling, and transfer heroin to the CI in exchange for the pre-

recorded currency. (TT 132-36).1 Chief Berger identified the seller of the heroin as

Defendant immediately after the transaction through the use of Defendant's JNET driver's



I
  Numerals in parenthesis preceded by the letters "TT" refer to specific pages of the transcript of the testimony
presented at the trial of this matter, held on December 4 - 6, 2012 before this court, which is made a part of the
record herein.

                                                        2
  license photo. (TT 138-40). This controlled buy was also monitored by other members of the

  Westmoreland   County Drug Task Force.

         The second controlled buy was conducted on August l 0, 2011 at the II Brothers Bar

 on Route 982 in Derry Township, Westmoreland County. Officer Amber Noel of the

 Ligonier Township Police Department, acting as the undercover officer, accompanied the Cl,

 who had been strip-searched and provided with pre-recorded currency, to the parking lot of

 the bar. Officer Noel testified that she observed the Cl get out of their vehicle, approach

 Defendant in his car, conduct a transaction, and return to the task force vehicle. (TT 142-44).

 Officer Noel was able to see the person who provided the heroin to the CI, and immediately

 identi tied Defendant as that person after the controlled buy through the use of Defendant's

JNET driver's license photo. (TT 144).

        The third controlled buy was conducted on August 14, 2011, again al the II Brothers

Bar on Route 982 in Derry Township, Westmoreland County. Officer Robert Hakel of the

Ligonier Borough Police Department, acting as the undercover officer, accompanied the CI,

who had been strip-searched and provided with pre-recorded currency, to the parking lot of

the bar. Officer Hakel testified that he observed the Cl get out of their vehicle, approach

Defendant in his car. conduct a transaction, and return to the task force vehicle. (TT 149~50).

Officer Hakel was able to see the person who provided the heroin to the CI, and he identified

Defendant as that person immediately after the controlled buy through the use of Defendant's

JNET driver's license photo. (TT J 51-52).

ELIGIBILITY FOR RELIEF:




                                               3
         The requirements for eligibility for relief under the Post-Conviction Relief Act are set

 forth both in the Ac! itself(42 Pa.C.S. §9541, et. seq.) and in the Rules of Criminal

 Procedure (Pa.R.Crim.P. Rules 901 and 902). Generally speaking,

                  PCRA petitioners. to be eligible for relief, must, inter alia, plead
             and prove their assertions by a preponderance of the evidence. Section
             9543(a). Inherent in this pleading and proof requirement is that the
             petitioner must not only state what his issues are, but also he must
             demonstrate in his pleadings and briefs how the issues will be proved.
             Moreover, allegations of constitutional violation or of ineffectiveness
             of counsel must be discussed "in the circumstances of the case."
             Section 9543(a)(2)(i-ii). Additionally, the petitioner must establish by
             a preponderance of evidence that because of the alleged constitutional
             violation or ineffectiveness, "no reliable adjudication of guilt or
             innocence could have taken place." Section 9543(a)(2)(i-ii). Finally,
             petitioner must plead and prove that the issue has not been waived or
             finally litigated. §9543(a)(3), and if the issue has not been litigated
             earlier, the petitioner must plead and prove that the failure to litigate
             "could not have been the result of any rational, strategic or tactical
             decision by counsel." Section 9543(a)(4).

        Commonwealth v. Rivers. 567 Pa. 239, 245-246, 786 A.2d 923, 927 (Pa. 200 l ).

        Additionally, because the Defendant has raised allegations of ineffective assistance of

counsel. he must plead and prove, by a preponderance of the evidence:

             ( 1) that there is merit to the underlying claim; (2) that counsel had no
             reasonable basis for his or her course of conduct; and (3) that there is a
             reasonable probability that, but for the act or omission challenged, the
             outcome of the proceeding would have been different. Commonwealth
             v. Jones, 546 Pa. 161, 175, 683 A.2d 1181, 1188 ( 1996). Counsel is
             presumed to be effective and Appellant has the burden of proving
             otherwise. Commonwealth v. Marshall. 534 Pa. 488, 633 A.2d 1100
             ( 1993). Additionally, counsel cannot be considered ineffective for
             failing to raise a claim that is without merit. Commonwealth v.
             Peterkin. 538 Pa. 455, 649 A.2d 121 (1994) ....

       u..   citing Commonwealth v. Holloway, 559 Pa. 258, 739 A.2d 1039, 1044 (1999).

       Defendant now raises the following issues as reasons why he is eligible for relief. f n

his pro-se PCRA petition. Defendant asserts that his counsel failed to raise the issue of



                                                4
 weight of the evidence     in his Rule 1925(b) Statement.   (No-Merit Letter 3). As a result, the

 issue was waived al the Superior Court level, and Defendant "feels he was denied competent

 representation." tPro-se PCRA 18). Defendant also asserts that trial counsel was ineffective

 by failing to preserve the issue of whether this Court erred in permitting the Commonwealth

 lo   introduce hearsay statements at trial. (No-Merit Letter 3). The Defendant also contends

 that it was reversible error for Sergeant James Friscarella to testify that the Cl, who was

unable to testify al trial, identified Defendant in a JNET photograph as the person who

delivered the heroin during the drug transaction. (No-Merit Letter 3). Last, Defendant asserts

that the identification procedure which was used to identify Defendant was unduly

suggestive. (No Merit Letter 3).

      I.      WHETHF,R    TRIAL   COUNSEL    RENDERED    INEFFECTIVE
              ASSISTANCE OF COUNSEL BY FAILING TO PRESERVE THE ISSUES
              OF WEIGHT OF THE EVIDENCE ON APPEAL TO THE SUPERIOR
              COURT?

      Defendant first asserts that trial counsel was ineffective for failing to raise a claim of

weight of the evidence in Defendant's 1925 Statement. ft is certainly true that where trial

counsel fails entirely lo file a direct appeal when directed by a defendant, including a Rule

1925 Statement. counsel's inaction represents per-se ineffectiveness. Comm. v. Halley, 870

A.2d 795, 801 (Pa. 2005) (holding that the failure to perfect a requested direct appeal is the

functional equivalent of having no representation at all); see also Comm. v. Lantzy, 558 Pa.

214 (Pa. 1999): Comm. v. B11rto11, 973 A.2d 428. 432 (Pa.Super. 2009). As the court in

Burton recited:

                  The complete failure to file the 1925 concise statement
                  is per se ineffectiveness because it is without reasonable basis
                  designed to effectuate the client's interest and waives all issues
                  on appeal. Likewise> the untimely filing is per se
                  ineffectiveness because it is without reasonable basis designed

                                                   5
                 lo effectuate the client's interest and waives all issues
                 on appeal. Thus untimely filing of the 1925 concise statement
                 is the equivalent of a complete failure to file. Both
                 are per se ineffectiveness of counsel from which appellants are
                 entitled lo the same prompt relief.

                 Id. at 432-33.

         On the other hand, where counsel fails to pursue every claim requested by a

  defendant, per-se ineffectiveness is not implicated.


                 "It is also well-settled that the reinstatement of direct appeal
                 rights is not the proper remedy when appellate counsel
                 perfected a direct appeal but simply failed to raise certain
                 claims. Where a petitioner was not entirely denied his right to
                 a direct appeal and only some of the issues the petitioner
                 wished to pursue were waived, the reinstatement of the
                 petitioner's direct appeal rights is not a proper remedy."

     Comm. v. Grose/la, 902 A.2d 1290, 1293-94 (Pa.Super. 2006) (citation omitted).


        Thus. because per-se ineffectiveness is not implicated in this case, Defendant must

 meet the three prongs established in Comm v. Pierce, 527 A.2d 973 (Pa. 1987). Under this

standard, a defendant must meet all of the following three prongs to prove ineffectiveness:

(1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his

action or inaction; and (3) the petitioner suffered actual prejudice as a result. Id.; see also

Comm. v. Ali, IO A.3d 282, 291 (Pa. 20 I 0). Further, "if a petitioner fails to prove any of

these prongs, his claim fai Is." Comm. v. Simpson. 66 A.3d 253, 260 (Pa. 2013) ( citation

omitted). Generally, counsel's assistance is deemed constitutionally effective so long as its

contested choices had some reasonable basis "designed to effectuate his client's interests."

See Ali. IO A.3d at 282. Also, "counsel will not be deemed ineffective for failing to raise

baseless or frivolous issues." Comm. v. Gwy1111, 943 A.2d 940, 948 (Pa. 2008).



                                                6
     In this case, Defendant fails the first prong, as he cannot assert that his claim has arguable

 merit. A claim has arguable merit if counsel's act or omission conflicts with a constitutional

 guarantee, statute, rule of procedure, or established precedent. See, e.g., Comm. v. Bennett,

  19 A.Jd 541 (Pa.Super. 2011 ), Comm. v. Jo!,11so11. 875 A.2d 328 (Pa.Super. 2005), Comm.

 v. Poplawski, 852 A.2d 323 (Pa.Super. 2004). As stated above, although Defendant certainly

 has a constitutional right to file an appeal, reinstatement of a defendant's appellate rights are

 not the proper remedy where defense counsel does not further every argument suggested by,

 or available to, a defendant. As discussed, infra. weight of the evidence arguments are very

 narrov. -ly construed. The facts in this case are not so extraordinary as to shock one's sense of

justice, which would garner Defendant relief. Thus, this claim is meritless, and Defendant's

 ineffectiveness claim must fail for not meeting the arguable merit prong.

    Even assuming, arguendo, that Defendant's claim did have arguable merit, Defendant

also fails the second prong under Pierce, as defense counsel acted reasonably in not

furthering Defendant's weight of the evidence claim. To successfully argue that defense

counsel had no reasonable basis for his or her actions, courts "do not question whether there

were other more logical courses of action which counsel could have pursued; rather, we must

examine whether counsel's decisions had any reasonable basis." Co11mL v. Washington, 927

A.2d 586, 594 (Pa. 2007). Further, a court can only conclude that counsel's strategy lacked

a reasonable basis if a defendant proves that "an alternative not chosen offered a potential for

success substantially greater than the course actually pursued. H Comm. v. Williams, 899 A.2d

I 060, 1064 (Pa. 2006).

   In this case. Defendant did not have any potential for success in his weight of the

evidence claim. A new trial is warranted on weight of the evidence grounds only in



                                                7
extraordinary circumstances, or "when the jury's verdict is 'so contrary to the evidence that

it shocks one's sense of justice and the award of a new trial is imperative so that right may be

given another opportunity   to prevail.:''   Criswell v. King, 834 A.2d 505, 512 (Pa. 2003); see

also Armbruster v. Horowitz. 572 Pa. I, 8 I 3 A.2d 698, 703 (2002). The Pennsylvania

Supreme Court also noted that weight of the evidence arguments are narrowly construed

because of the "obvious tension between the broad, settled, exclusive role of the fact-finder

in assessing credibility and the limited power of trial judges, in narrowly circumscribed

circumstances, to overturn those assessments when the judicial conscience is not merely

disappointed, or uncomfortable, but shocked." Criswell, 834 A.2d at 513. For a weight of the

evidence claim, "judges do not sit as the thirteenth juror. Rather, the role of the trial judge is

to determine that 'notwithstanding all the facts, certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny justice.'" Comm.

v. Widmer, 744 A.2d 745, 752 (Pa. 2000).

        Defendant's guilty verdict was not against the weight of the evidence. An individual

is in violation of the Controlled Substance, Drug, Device and Cosmetic Act where he:

                knowingly or intentionally possess] es] a controlled or
                counterfeit substance [and is not] a person not registered under
                this act. or [is] a practitioner not registered or licensed by the
                appropriate State board, unless the substance was obtained
                directly from. or pursuant to, a valid prescription order or order
                of a practitioner. or except as otherwise authorized by this act.
                35 P.S. § 780-113 §Al6.

        Defendant was also convicted of §AJO of the same Act, which reads that the

following acts are prohibited:

                Except as authorized by this act, the manufacture, delivery, or
                possession with intent to manufacture or deliver, a controlled
                substance by a person not registered under this act, or a
                practitioner not registered or licensed by the appropriate State

                                                    8
                 board. or knowingly creating, delivering or possessing with
                 intent to deliver, a counterfeit controlled substance.
                 35 P.S. § 780-113 §A30.

     This Court had already determined, in its 1925 Opinion, that there was a plethora of

 evidence to support Defendant's conviction. The same facts support the notion that the jury

 verdict was not against the weight of the evidence. This Court reiterated that each of the three

 undercover officers were able to identify Defendant, and "the transactions occurred in places

 and at times where the undercover officers as well as the officers conducting surveillance of

 the controlled buys had ample opportunity to observe Kimmel clearly and all indentified

 Kimmel as the heroin dealer through use of his JNET photograph." (Opinion of the Court

 lssued Pursuant to Pa.R.A.P. 1925, pg. 4). Thus, this Court found that "the evidence was

clearly sufficient to support the jury's finding that Kimmel was the individual who delivered

heroin to the Cl on three separate occasions." Id.

        This Court cannot locate any facts presented at trial or thereafter which are of such

great weight as to deny Defendant justice. During each of the controlled buys, a confidential

informant was monitored and observed by Jaw enforcement authorities. The informants were

strip searched to ensure that there were no controlled substances or money on their person.

Further, an undercover officer accompanied the Cls on each of the three controlled buys.

Because the evidence presented at trial was not against the weight of the evidence, defense

counsel acted reasonably in not pursuing the claim at the Superior Court level.

    For many of the same reasons, Defendant also fails the third prong, as he did not suffer

actual prejudice as a result of defense counsel's actions. Prejudice is established where a

petitioner demonstrates that "but for the errors and omissions of counsel, there is a

reasonable probability that the outcome of the proceedings would have been different."



                                               9
  Comm. v. Kimball, 724 A.2d 326, 333 (Pa. 1999). As discussed supra, Defendant's

  conviction was not against the weight of the evidence. Therefore, Defendant cannot establish

  that had his counsel pursued such a claim. that the Superior Court would have granted him

  relief.

      II.    WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE
             ASSISTANCE OF COUNSEL BY FAILING TO PRESERVE THE ISSUE
             OF WHETHER HEARSAY EVIDENCE WAS PROPERLY ADMITTED
             TO THE SUPERIOR COURT?

      Defendant's second issue suggests that defense counsel also erred in not preserving the

 issue of"improperly admitted hearsay evidence." This Court first notes that it appears that

 defense counsel did raise the issue of these hearsay statements in its l 925 Statement. Defense

 counsel opined that despite the fact that the Commonwealth did not disclose the identity of

 one of the confidential informants, "the Commonwealth was still permitted to present ample

 testimony through Sergeant Friscarella regarding information supplied to them by the

 confidential informant." (Concise Statement 2).

      Even assuming arguendo that defense counsel did not properly preserve the issue,

Defendant did not suffer any prejudice by the argument's omission, as this Court previously

ruled that these statements were properly admitted. Defense counsel raised hearsay

objections at the outset of the trial on three occasions, seeking to bar the admission of any

information that the police officers had gained through the CI. Sergeant James Friscarella

testified regarding his role in the undercover drug investigation that led to Defendant's arrest.

When asked whether there was a target for the first controlled buy conducted on June 12,

201 l, Friscarella indicated that there was. When asked who that target was, defense counsel

objected on the basis of hearsay. That objection was overruled. (TT 73-74). Counsel again




                                               10
objected when Sergeant Friscarella was asked if law enforcement had an address for

Defendant:

   MS. ELLIOTT:        Objection. Hearsay. Your Honor, this is the very
   safeguard of the hearsay rule. Mr. Kimmel is sealed before you charged
   with a variety of very serious charges, and if everything the confidential
   informant told Sergeant FriscarcJla is admissible where is his
   constitutional protection?

   (TT 74).

   The Commonwealth withdrew that question, so there was no ruling made by the court on

Defendant's objection. Counsel objected a third time when Sergeant Friscarella testified that

both the undercover officer and the confidential informant identified Kimmel from his JNET

photograph shortly after the controlled buy. (TI l 03). That objection was overruled based

upon the Commonwealth's assertion that a statement made for the purpose of identification

was an exception to the hearsay rule.

   With regard to the background information provided to the police by the confidential

informant (or informants) as suggested on pages 73 ~ 74 of the trial transcript, such

information is clearly admissible to establish the course of conduct on the part of the police.

Similar challenges to the admission of such evidence have been unsuccessful when used for

this limited purpose. See, e.g., Comm. v. Estepp, 17 A.3d 939 (Pa. Super 2011); Comm. v.

Dargan, 897 A.2d 496, 500 (Pa.Super. 2006). Although there was no limiting instruction

given in this case. none was necessary given the very limited nature of the question posed by

the Commonwealth and the timely objection thereto. Therefore) there was no abuse of

discretion in admitting this testimony, and Defendant's claim that they were improperly

admitted has no arguable merit. Thus, this ineffectiveness argument must also fail.




                                                lI
          Ill.      WHETHER    IT WAS REVERSIBLE      ERROR  FOR SERGEANT
                    FISCARELLA TO TESTIFY THAT THE CONFIDENTIAL INFORMANT,
                    WHO DID NOT TESTIFY AT TRIAL, IDENTIFIED THE DEFENDANT
                    BY LOOKING AT A J-NET PHOTOGRAPH?

          Defendant   also declares that it was reversible error for this Court to admit statements   of

   identification     from the undisclosed   Cl through the testimony of Sergeant Fiscarella. Pa.R.E.

  Rule 803.1 sets forth certain exceptions       to the hearsay rule which permit hearsay evidence      to

  be admitted al trial. The exception that has been carved out for statements made for the

  purpose of identi fication requires that the declarant be present and testify in court in order to

  fal1 within that limited exception. "Where , .. the prior consistent statement is one of

  identification, it is admissible as an exception to the hearsay rule as substantive evidence,

  regardless of impeachment, provided that the declarant is present and subject to cross-

 examination." Comm. v. Wilson, 580 Pa. 439, 456, 861 A.2d 919, 929 (Pa. 2004); Pa.R.E.

 803.1 (2).

         The undercover officers were available and. in fact, testified at trial and were subject to

 cross-examination        by De fondant. However, the identity of the confidential informant was

 never disclosed, and the Cl was not present at trial and did not testify, and was therefore not

 subject to cross-examination.        Therefore, it was in fact error to admit the out-of-court

 statements of identification made by the CL Nonetheless, it is clear that the error was

harmless, given the testimony that was provided by the undercover police officers who did

testify and provided not only testimony about the identifications made shortly after the

controlled buys. but provided credible in-court identifications of Kimmel as welt. For these

reasons, Defendant cannot prove by a preponderance of the evidence that because of such an

error, no reliable adjudication of guilt or innocence could have taken place, and his claim

fails.


                                                     12
    IV.     WHETHER THE IDENTIFICATION                        PROCEDURE          USED      WAS
            UNDULY SUGGESTIVE?

    Last, Defendant alleges that the identification procedure that officers used to identify

him. namely, through JNET photographs. was unduly suggestive. This argument is without

merit. "A photographic identification is unduly suggestive when the procedure creates a

substantial likelihood ofmisidentification.11   Comm. v. Fisher, 769 A.2d 1116, 1126

(Pa.Super. 200 I). Suggestiveness arises "when the police employ an identification

procedure that emphasizes or singles out a suspect. See Simmons v. United States, 390 U.S.

377. 383 ( 1968). However, "[s]uggestiveness alone will not forbid the use of an

identification, if the reliability of a subsequent identification can be sustained." Comm. v.

McGagltey. 507 A.2d 357, 359 (Pa. 1986). And as noted by Defense Counsel James

Robinson, Esq. in his No-Merit Letter, "law enforcement officers are permitted to use JNET

photographs as a means to identify suspects who are involved in criminal investigations."

(Defendant's Brief 8-9). See also Comm v. Kendricks, 30 A.2d 499 (Pa.Super, 2011).

    In this case, undercover police officers were inunediately able to identify Defendant after

each of the controlled buys took place. (TT 138-40, 144j 151-52). The reliability of these

identifications were sustained at trial, where each of the officers identified Defendant as the

individual involved in each of the three controlled buys. Thus, Defendant cannot prove by a

preponderance of the evidence that the verdict was compromised by such identification

procedures, and this argument must fail.



NOTICE OF INTENT TO DISMISS:




                                                 13
       Accordingly, the Court hereby notifies the parties of its intention to dismiss the

defendant's pro-se post-conviction petition.

       THE DEFENDANT MAY FILE A WRITTEN RESPONSE TO THIS NOTICE.

SUCH A RESPONSE MUST BE FILED WITHIN 20 DAYS FROM THE DATE OF

THIS NOTICE. IF NO RESPONSE IS FILED, THIS COURT SHALL DISMISS THE

PETITION.

        If a response is filed, this Court may, instead, upon consideration of the response,

grant leave Lo file an amended petition or otherwise direct that the proceedings continue.

Any response should address specifically the areas of defect delineated within the body of

this Order of Court, specifically, any response by the defendant must be in writing and

shall address the issues addressed by this Court herein.

        If no response is filed, this Court shall dismiss the Defendant's pro-se PCRA Petition.

If a response is filed, this Court may, upon consideration of the response, dismiss the

Petition, grant leave lo file an amended Petition or otherwise direct that the proceedings

continue.

        Based upon this court's consideration of the "No Merit Letter" submitted by Attorney

James Robinson, Esq., and upon a review of the record in this case, counsel's Petition to

Withdraw as Counsel of Record in this matter is taken under advisement. The said Petition

shal I be granted by further Order of Court provided that a meritorious response is not

received by this Court from the defendant within the twenty-day period set forth above.

Defendant may. if he chooses, avail himself of the assistance of PCRA counsel in the

preparation of this response, or he may elect to file the required response pro-se.




                                               14
Date



Clerk of Courts

cc:    File
       John Petrush, Esq., Assistant District Attorney
       James Robinson. Esq., Counsel for Defendant
       Shaun Edward Kimmel. Defendant
                D.0.C. IIK Y7015, Unit/Side: J/£3,
                SCI Albion, 10745 Roule 18, Albion, PA 16475-0002
       Pamela Neiderheiscr. Esq .. Court Administrator's Office




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