J-S74017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                          Appellee

                     v.

EMMANUAL YATES

                          Appellant                  No. 2020 EDA 2018


              Appeal from the PCRA Order entered May 16, 2018
              In the Court of Common Pleas of Delaware County
               Criminal Division at No: CP-23-CR-0008091-2013


BEFORE: LAZARUS, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                       FILED FEBRUARY 08, 2019

      Appellant, Emmanuel Yates, appeals form the May 16, 2018 order

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

Pa.C.S.A. §§ 9541-46. We affirm.

      The PCRA court recited the pertinent facts and procedural history.

            On June 19, 2014, following a jury trial before the Honorable
      Gregory M. Mallon, Appellant was found guilty of robbery, criminal
      conspiracy to robbery, and possessing an instrument of crime. He
      was sentenced on August 13, 2014 to an aggregate term of
      seventy-nine (79) to one hundred fifty-eight (158) months of
      incarceration followed by ten (10) years’ probation. The day
      before trial, defense counsel filed a ‘Motion in limine for Correct
      Information Regarding the Alleged Victim, Abdul Diara’s
      Immigration Status and Criminal History.’ The motion requested
      the court to order the victim to submit to a fingerprint scan by the
      Criminal Investigation Division of the District Attorney’s Office to
      establish his true identity. The purpose of said request was to
      establish if the victim had a criminal record for crimen falsi which
      the defense could use at trial to challenge the victim’s
      truthfulness.      During pre-trial investigation, counsel had
J-S74017-18


      discovered there was a man with the same name as the victim,
      living in Philadelphia who had a criminal record and therefore
      requested a fingerprint scan of the victim to determine if the
      victim was who he purported to be or was in reality the other man
      in Philadelphia with a criminal record for crimen falsi. In the
      motion, defense counsel also recognized that the Commonwealth
      had provided defense counsel with the victim’s full name, date of
      birth, address, social security number, and the fact that the victim
      did not have a criminal abstract.

             The court held argument on the Motion on June 17 and June
      18, 2014. The court accepted exhibits, including photographs of
      the two men, and heard argument. The court also questioned the
      victim, outside the presence of the jury about his date of birth,
      criminal history, and immigration status. The court initially agreed
      to fingerprint the victim, but after the victim testified under oath
      and after the court received enlarged photographs of both men,
      the court denied the request to fingerprint the victim.

PCRA Court Opinion, 8/13/2018, at 1-2.

      On October 25, 2015, this Court affirmed the judgment of sentence.

Appellant did not seek allowance of appeal in our Supreme Court. On October

11, 2016, he filed his timely first PCRA petition. Appointed counsel filed an

amended petition on August 23, 2017 asserting that counsel was ineffective

for failing to investigate the victim’s identity and criminal history sooner than

one day before trial. On April 18, 2018, the PCRA court issued its Pa.R.Crim.P.

907 notice of intent to dismiss the petition without a hearing. On May 16,

2018, the PCRA court entered the order on appeal.

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



                                      -2-
J-S74017-18


       supported by the record. In contrast, we review the PCRA court's
       legal conclusions de novo.

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

2015).

       The sole issue before us is whether counsel was ineffective for failing to

investigate the victim’s identity sooner. To prevail on a claim of ineffective

assistance of counsel, a PCRA petitioner must plead and prove that the

underlying claim is of arguable merit; that counsel had no strategic basis for

the disputed action or inaction; and that counsel’s error prejudiced the

petitioner. Reyes-Rodriguez, 111 A.3d at 779-80. Counsel is presumed

effective, and the petitioner bears the burden of proving otherwise. Id.

       Instantly, the record plainly reflects that the underlying issue lacks

arguable merit, and that Appellant suffered no prejudice from counsel’s failure

to raise the issue sooner than one day before trial. The trial court conducted

a hearing on the victim’s identity and found that the victim has the same name

as another individual living in the Philadelphia area. The other individual had

a criminal history, but the victim did not. Since the victim had no criminal

history, Appellant would have gained nothing had counsel raised the issue

sooner than one day before trial. The PCRA court’s opinion of August 13, 2018

explains the trial court’s findings and the lack of merit in Appellant’s argument.

We affirm the order based on that opinion.         In the event of any further

proceedings, the parties shall attach a copy of the August 13, 2018 opinion to

their filings.

                                      -3-
J-S74017-18


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/19




                          -4-
                                            r:
                                                                                                               Circulated 01/17/2019 04:03 PM

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'I
I
              IN THE COURT QF COMMON PLEAS O)? DELA\VARE COUNTY, PENNSYLVANIA
l
                                    CRIMINAL DIVISION
l.-
j"            COMMONWEALTH OF PENNSYLVANIA                                         NO.      8091·2013
i                                                                                            2020 EDA 2018
                                              v.
I




l
!
;
I
              EMMANUEL YATES

                                                                    OPil'llON

!             Amoroso> J.                                                                       Filed;


i
                         Emmanuel Yates (hereinafter referred to as "Appellant") appeals from an order denying
�
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1
              his Petition for Post-Conviction Collateral Relief. For the reasons provided below, the court
                                                                                                                                /
l             submits that the decision of the trial court should be affirmed.
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f
                                             I. FACTUAL AND PROCEDURAL H_ISTORV

                         On June 19, ;W.141 following a jury trial before the Honorable Gregory M. Mallon',
l
I
 I
              Appellant was found guilty of robbery, criminal conspiracy to robbery, .and possessing an
 !      I .   instrument of crime, He Wl:\S sentenced on August 13, '.4014 to an aggregate term ofseventy-nine
 I                                                                                                 .   • ,                  I




                                                                                                  hr ten (10) years' probation.
 I

 !            (79) to one hundred fifty-elgh; (158) months incarceration tallowed
 I            The day before trial, defensecounsel filed a. "Motion in limlne for Cotr��t I�fQtmafu>_ti. __ .. __
    I
              Regarding the Alleged Victim, Abdul Diana's Immigration Status and Criminal History." The

              motion requested the. Court to orderthe victim to submit to a fingerprint scan by the Criminal

              Investigation Division of the.District Attorney's Office to establish his true identity. The

              purpose of said request was to establish if the victim had a criminal record for er/men falsi which

              the defense could use at trial to challenge the victim's truthfulness. During pre-trial

              investigation, counsel had discovered there was a man with the same name as the victim, living

              1
                  Thls matter was admlnlstratlvely transferred to the undersigned in Jan1,1ary 101_8 following Judge Mallon's
              transition out of the crlmlnal dlvi�lon.

                                                                     Page 1 of 6

                                                                    APPENDIX A
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in Philadelphia who had a criminal record and therefore requested a fingerprint scan of the

· victim to determine if the victim was who he purported to be or was in reality the other man in

Philadelphia with a criminal record for crimen falsi. In the motion, defense counsel also

recognized that the Commonwealth had provided defense counsel with the victim's full name,

date of birth, address, social security number, and the foot that the victim did not have a Criminal

abstract.

        The court held argument on the Motion on June 17 and June 18, 2014. The court

accepted exhibits, including photographs of the two men, and heard argument. The court also

questioned the victim, outside the presence o-f the jury about his date of birth, criminal history)

and immigration status. The court initially agreed to fingerprint the victim, but after the victim

testified under oath and after' the court received enlarged photographs of both men, the court

denied the request to fingerprint the victim,

        The matter proceeded to trial on June. 1.8. arid June 19, 2014. The jury convicted the

Appellant of Robbery, Conspiracy, and Possessing an Instrument of Crime. Thejury also found

that Appellant visibly possessed a firearm. The Honorable Gregory M. Mallon sentenced

Appellant on August 13, 2014 to an aggregate term of seventy-nine (79) to one hundred fifty-

eight ( 1.58) months incarceration fol towed b.y ten ( l 0) years probation.

       Appellant filed a timely Motion for Reconsideration of Sentence on August 22, 2014.

The court held a hearing on said motion on September 26, 2014 and ultimately denied the motion

by order entered on September 30, 2014. Appellant filed a timely appeal from the judgment of

sentence. The Superior Court of Pennsylvania affirmed the judgment of sentence by

Memorandum Opinion issued October 25, 2015. Appellant did not file a Petition for Allowance

of Appeal.



                                                Page 2 of 6
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        On October 11, 2016, Appellant filed a prose Petition for Post-Conviction Collateral

 Relief (hereinafter "PCRA"). Tho court appointed attorney Scott Galloway, Esquire as PCRA

 counsel for Appellant. On August 23, 2017, PCRA counsel filed an Amended PCRA petition

 alleging trial counsel was ineffective in failing to investigate the true identity of the victim prior

. to the commencement of trial. The court issued a Rule on the Commonwealth to respond to the

Amended PCRA, which response-was filed on January 22> 2018. Following review of the

petitions, the Commonwealth's response, and following independent review of the record, on

April 18� 20 l 8, the court issued its Notice of Intent to Dismiss without a Hearing in Twenty

Days. Appellant did not file a response. On May 16, 2018> the court issued an order dismissing

Appellant's PCRA

        This timely appeal was filed on June 131;2018. The court issued an order requiring a

1925 Statement of Matters Complained of on Appeal which was filed on July 9, 2018. The

Statement raises one issue for review: Whether or notthe trial court was in error in dismissing
                                                         I



Appellant's PCRA.)

                                     II. STANDARD OF REVIEW

        In reviewing the propriety of a PCRA court's dismissal of a PCRA petition, thy
reviewing court is limited to a determination as to whether the record supports the PCRA court's

findings and whether the order in question is free of legal error. Commonwealth v, Ragan, 923

A.2d J 169, 1.170 (2007). The PCRA court's findings will not be disturbed unless there is no

support for the findings in the certified record. Commonwealth v. Spencer, 892 A.2.d 840, 841

(Pa. Super. 2006).




                                               Page 3 of 6
                                         Ill. DISCUSSION

       "The benchmark for judging any claim of ineffectiveness must be whether counsel's

conduct so undermined the proper functioning of the adversarial process that the trial cannot be

relied on as having produced a just result." Strickland v. Washington, 4.66 U,S, 668, 686 (1984)

To obtain relief on a claim for ineffective assistance of counsel, a Appellant must establish: (1)
                                                                                                11




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 prcbability that, but for the act or omission

challenged, the outcome of the proceeding would have been different." Commonwealth v.

Halloway, 739 A.2d 1039, 1044 (Pa. 1999) Furthermore, our Courts focus on "the reliability of

the verdict rather than the quality of counsel's performance." Commonwealth v. Pierce, 527 A.2d

9731 975 (.1987) "Since our test requires that we examine the approach employed by trial

counsel in light of the available alternatives, a finding of ineffectiveness could never be. made

unless wr;, concluded that the alternatives not chosen offered a potential for success substantially

greater than the tactics actually utilized." Id. at 976 An allegation of ineffectiveness cannot be

established. without a finding of prejudice (but for the act or omission challenged, the outcome of

the proceedings would have been different). Commonwealth v. March, 598 A.2d 961 (1991)

Counsel cannot be deemed inelfectl ve for railing to raise baseless or meritless issues.

Commonwealth. v. Hutchinson, 556 A.2d 370 (Pa. 1989)

       Appellant alleges that trial counsel was ineffective in failing to investigate sooner the

identity of the victim which would have led him to explore whether or not the victim had a

criminal history. There is no merit to this claim. Trial counsel did investigate the victim's

identity and did so with great zeal. Counsel filed his Motion in limine seeking to have the victim

fingerprinted for Identification despite having the victim's full name, address, date of birth, and



                                             Page4of6
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social security number.            The trial court, swayed by the zealous argument .of defense counsel,

held a hearing allowing counsel to present evidence as to Why the fingerprintlng was necessary

despite the Commonwealth's representations that the vlctirn's identity was correct. At the

hearing, the Commonwealth submitted into evidence CPIN photographs of the victim as well as

photographs ofth� person withthe same name in Philadelphia, (N:T., 6/11/14, pp.1°3,ISi N.T.,

6/l 8/14, p.3) The photographs clearly depicted two different men. trial counsel then ar�ued that

without any "proof" of the victim's true identity it could not be ruled out that the victim, whose

immigration status was questioned, could have obtained a fake &b.cial security number. The court

'agreed to fingerprint th� victim the next day prior to the start of trial. The Commonwealth
objected. The Court decided to question the victim under oath outside the pre.senc� of the jury in

lieu of -fingerprlnting, especially since the court became aware that the victim's fingerprints
          I            .       .         •




would like stay in the Automated Fingerprint Identification ·syst.�ni (A..FIS). The next day, prior

to beginning trial, the Commonwealth informed the court that the victim had been born outside

the United States, but later became a, U.S. citizen. (N.T. 6/1$/14, pp.6�7) The court questioned

the. victim under oath who explained that he had never been convicted of � crime and he had

never used a nameother than his. (N.1'., 6/18/14, .p.9)
        It is clear from the record that trial counsel did investigate the identity of the victim and

,alth<;>µgh the motion regarding identity was notpresented to the court prior to the day before trial,

counsel did investigate thoroughly the identity of the victim prior to filing the motion (N.T.>

6/17/14� p.S) and through the information deduced from the hearing on the motion.

        Furthermore, Appellant has not established that trial counsel had no reasonable basis for

his actions. As was discussed above, "a finding of ineffectiveness could never be made unless

we concluded that the alternatives not chosen offered a potential for success substantially greater


                                                    Pages of 6
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than the tactics actually utilized." Commonwealth v. Pierce, 527 A,2d 973, 976 (1987)

Appellant did not offer an alternative strategy that counsel could have followed, Assuming

arguendo that the alternative strategy was for counsel to have investigated the identity at a

sooner date, it is not clear that this would have offered a potential for success. $reater than the

tactic which was employed, the filing of the motion in limine. It seems likely that even if trial

counsel had filed a motion earlier in the case, the court would have conducted 'the same sort of

analysis with the same outcome.

       Appellant has failed to show prejudice., The pbotographs of the two men made it

abundantly clear to the Court that there were. two men with the same name. If d.e.fense counsel
had filed earlier, that would have been clear earlier, That it could, or would have changed the

strategy or outcome is wholly without merit In essence, it would seem that the defendant is

suggesting that the victim presented by the Commonwealth was an imposter, that the true victim

was the person with the same name who had a criminal record. Such a suggestion is not only

ridiculous but without any basis. To suggest that the true victim was the person of same name

who had a criming] record but for some reason chose to hide his identify and get someone .else

with his name to appear for the Commonwealth stretches the bounds ofeven the most modest

application of common sense.

                                       TV. CONCLUSION           '-·

       For these reasons, it is respectfully submitted that the court's order denying PCRA relief

should be affirmed.




                                                                                            GE

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