J-S03037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DALONZO MONTEZ ZEPPRINANS                  :
                                               :   No. 1681 EDA 2017
                       Appellant

                    Appeal from the PCRA Order May 4, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0011333-2013


BEFORE:      BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED APRIL 25, 2018

       Appellant, Dalonzo Montez Zepprinans, appeals pro se from the order

entered in the Court of Common Pleas of Philadelphia County dismissing his

first petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. He asserts the PCRA court erred when it rejected his claims

challenging the trial court’s refusal to recuse itself and asserting trial counsel’s

ineffective assistance.1 We affirm.

       The PCRA court aptly provides the procedural history and facts of the

case as follows:

       Procedural History

____________________________________________


1 At the outset, we note with displeasure Appellant’s attempt to assert bias on
the part of a learned trial judge simply because she is a female jurist. See
infra.


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S03037-18


       On July 11, 2013, [Appellant] was arrested and charged with
       Aggravated Assault and related offenses. On July 16, 2014, after
       this Court denied the Appellant’s Motion to Suppress video
       evidence, the Appellant elected to be tried on a bench trial. On
       July 17, 2014, the [trial court] convicted Appellant of Aggravated
       Assault, Firearms Not to Be Carried Without a License (“VUFA”),
       Possession of an Instrument of Crime (“PIC”), and Recklessly
       Endangering Another Person (“REAP”) and sentenced him to five
       to ten years for VUFA, with concurrent sentences of two to four
       years for Aggravated Assault, one to two years for PIC, and one
       to two years for REAP. After Appellant timely appealed, the
       Superior Court affirmed his judgment of sentence on July 6, 2015.
       []



       On February 3, 2016, Appellant filed a pro se [PCRA] petition. On
       May 16, 2016, PCRA counsel entered his appearance. On July 14,
       2016 PCRA counsel filed a no-merit letter pursuant to
       Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
       banc) and a motion to withdraw. On August 18, 2016, [the PCRA
       court] filed a Notice of Intent to Dismiss under Pa.R.Crim.P. 907.
       On August 10, 2016, Appellant filed a response to PCRA counsel’s
       Finley letter.[ ] In his letter, Appellant reiterated his pro se petition
       claims and alleged that PCRA counsel only communicated with him
       once and did not properly address his issues. On September 1,
       2016, this Court removed counsel and appointed new PCRA
       counsel.     On October 13, 2016, Appellant counsel filed an
       amended petition.

       On October 31, 2016, Appellant filed a Motion to Proceed pro se
       and requested a Grazier hearing.[2] On November 16, 2016,
       Appellant forwarded a letter to [the PCRA court’s] chambers
       stating that, even though his second PCRA counsel filed an
       amended petition, PCRA counsel did not address all of Appellant’s
       issues. On November 28, 2016, after a Grazier hearing, [the
       PCRA court] removed PCRA counsel and permitted Appellant to
       proceed pro se.

       On December 20, 2016, Appellant filed a pro se amended petition.
       On March 7, 2017, the Commonwealth filed a Motion to Dismiss.
       On March 27, 2017, [the PCRA court], after finding Appellant’s
____________________________________________


2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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     claims meritless, filed a Notice of Intent to Dismiss under
     Pa.R.Crim.P. 907. On April 19, 2017, Appellant filed a response
     to [the trial court’s] 907 Notice [in which he raised the issues now
     raised in the present appeal].

     Facts

     In its July 6, 2015 Opinion, the Superior Court recounted the
     relevant facts:

             On July 11, 2013 at about 2:30 a.m., Philadelphia
             Police Sergeant Francis Rawls responded to a call
             regarding a person with a gun at 68th Street and
             Limekiln Pike.    Rick Miller, the complainant, had
             returned to his home and called 911, claiming that a
             man named “Lonzo” had shot at him. Miller provided
             a description of what the shooter was wearing,
             including blue jeans and a white t-shirt. Upon arriving
             at the scene, Sergeant Rawls encountered Miller, who
             indicated that the shots had been fired in front of
             Appellant’s house and pointed out where the house
             was located.      An unidentified woman permitted
             Sergeant Rawls to enter the residence and directed
             him to an upstairs bedroom, where Appellant was
             discovered, wearing an outfit matching Miller’s
             description. Sergeant Rawls secured the property
             pending receipt of a search warrant.

             Detective Edward Davis interviewed Miller twice.
             During the first interview, at about 3:30 a.m., Miller
             stated that someone other than Appellant had shot at
             him.     During a second interview, conducted
             approximately 40 minutes after the first interview
             concluded, Miller indicated that Appellant was the
             shooter and that he had stated otherwise because he
             was scared. After the second interview, Detective
             Davis applied for, and obtained, a warrant to search
             Appellant’s home for ballistics evidence and proof of
             residence.

             Detective     Davis    conducted     the   search     at
             approximately 8:30 a.m. He recovered a 32-caliber
             fired cartridge casing [(“FCC”)] from the outside of the
             landing area near Appellant’s porch.        Inside, he

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J-S03037-18


           recovered Appellant’s driver’s license and personal
           correspondence addressed to Appellant at that
           address. While conducting the search, Davis noticed
           a monitor split into four views that looked like a
           security camera monitor. Two of the views showed a
           live feed of the porch and front outside area of the
           house, where the shooting was alleged to have
           occurred and where the casing was recovered. The
           monitor was attached to a digital video recorder
           (“DVR”) that Davis also recovered. Video footage
           contained on the DVR depicts Appellant firing a
           handgun.

           Appellant appeared for trial on July 16, 2014, before
           the Honorable Barbara A. McDermott.          However,
           Appellant requested that a suppression motion be
           heard even though none had been filed. The court
           allowed the defense to raise a suppression motion
           orally, in which Appellant argued that the search
           warrant obtained by Detective Davis was limited to
           ballistics evidence and proof of residency and did not
           include the DVR.      The trial court permitted the
           Commonwealth to present its case, while holding the
           suppression motion under advisement.         Following
           Detective Davis’ testimony concerning the discovery
           of the DVR, the court denied the suppression motion
           and permitted the detective to testify regarding the
           video recording as it was shown in court.

     Commonwealth v. Zepprinans, [No. 2407 EDA 2014,
     unpublished memorandum at 2-3 (Pa.Super. filed July 6, 2015)].

PCRA Court Opinion, filed May 4, 2017, at 1-3 (footnotes deleted)

     Appellant raises the following issues for our review:

     I.    [DID] THE TRIAL JUDGE [COMMIT] ERROR BY
           DENYING APPELLANT’S PCRA [PETITION] ON MAY 4,
           2016, WHICH RAISED THE ISSUES OF JUDICIAL
           MISCONDUCT AND INEFFECTIVE ASSISTANCE OF
           COUNSEL?

     II.   [DID] THE TRIAL JUDGE [ABUSE] HER POWERS BY
           REVIEWING    APPELLANT’S   PRIOR   CRIMINAL

                                    -4-
J-S03037-18


            HISTORY BEFORE TRIAL, AND [DID] SUCH CONDUCT
            [AFFECT] DECISIONS MADE DURING APPELLANT’S
            TRIAL?


      III. [WAS TRIAL COUNSEL] INEFFECTIVE FOR FAILING
           TO CALL A MATERIAL EXCULPATORY WITNESS TO
           TESTIFY, ESPECIALLY SINCE THAT WITNESS WAS
           PRESENT AT TRIAL AND WILLING TO TESTIFY?


      IV.   [WAS TRIAL COUNSEL] INEFFECTIVE FOR NOT
            REQUESTING THE TRIAL JUDGE [TO] RECUSE
            HERSELF     FOR    IMPROPERLY    REVIEWING
            APPELLANT’S PRIOR CRIMINAL HISTORY PRIOR TO
            TRIAL AND [WAS COUNSEL] INEFFECTIVE FOR NOT
            ADVISING APPELLANT THAT A RECUSAL COULD BE
            REQUESTED?


      V.    [WAS TRIAL COUNSEL] INEFFECTIVE FOR FAILING
            TO RAISE A SUFFICIENCY OF EVIDENCE CLAIM,
            EITHER IN A POST VERDICT MOTION OR ON DIRECT
            APPEAL?


      VI.   [WAS TRIAL COUNSEL] INEFFECTIVE FOR NOT
            REQUESTING THE SUPPRESSION OF THE SECOND
            STATEMENT MADE BY THE ALLEGED VICTIM, WHICH
            WAS APPARENTLY MADE UNDER DURESS?

Appellant’s brief at 4-5.

      Our scope and standard of review of decisions denying relief pursuant

to the PCRA is limited to examining whether the PCRA court's findings of fact

are supported by the record, and whether its conclusions of law are free from

legal error. Commonwealth v. Chmiel, 173 A.3d 617, 624 (Pa. 2017). “The

PCRA court's credibility determinations, when supported by the record, are

binding on this Court.      However, this Court applies a de novo standard of




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review to the PCRA court's legal conclusions.” Commonwealth v. Spotz, 18

A.3d 244, 259 (Pa.2011) (citations omitted).

      In his first two issues, Appellant contends the trial judge should have

recused herself from his criminal trial because she had reviewed his prior

record during a pre-trial hearing at which Appellant entertained the

Commonwealth’s offer of five to twenty years’ incarceration in exchange for

his plea of guilty.   Specifically, the purpose of the review was to ensure a

knowing and intelligent plea by advising Appellant of his sentencing exposure

should he instead proceed to trial. These issues are waived.

      “To be eligible for relief under [the PCRA], the petitioner must plead and

prove by a preponderance of the evidence ... [t]hat the allegation of error has

not been previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3). “[A]n

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 postconviction

proceeding.”    42 Pa.C.S.A. § 9544(b).        “At the collateral review stage,

allegations of trial court error are waived, since they were not raised at the

first opportunity for review.” Commonwealth v. Rush, 838 A.2d 651, 660

(Pa. 2003) (citation omitted).

      Here, Appellant could have raised these issues before or during trial but

failed to do so. Therefore, the issues are waived, and he is not eligible for

relief on either basis on collateral review. See 42 Pa.C.S.A. § 9543(a)(3).

      Appellant’s remaining claims assert that his trial counsel was ineffective.

Generally, to obtain relief on a claim of ineffective assistance of counsel, a

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petitioner must plead and prove that (1) the underlying claim is of arguable

merit; (2) counsel's performance lacked a reasonable basis; and (3) the

ineffectiveness of counsel caused him prejudice. Commonwealth v. Pierce,

527 A.2d 973, 975 (Pa. 1987).            If a petitioner fails to prove by a

preponderance of the evidence any of the Pierce prongs, 527 A.2d at 975,

the court need not address the remaining prongs.            Commonwealth v.

Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009).

      Counsel is presumed to have rendered effective assistance of counsel.

Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015).                  We have

explained that trial counsel cannot be deemed ineffective for failing to pursue

a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.Super.

2003) (en banc). “We need not analyze the prongs of an ineffectiveness claim

in any particular order.    Rather, we may discuss first any prong that an

appellant cannot satisfy under the prevailing law and the applicable facts and

circumstances of the case.” Commonwealth v. Johnson, 139 A.3d 1257,

1272 (Pa. 2016) (citing Commonwealth v. Albrecht, 720 A.2d 693, 701

(Pa. 1998)).

      First, Appellant contends trial counsel ineffectively failed to file a motion

for recusal after the judge, who sat as finder of fact at his non-jury trial, had

reviewed his prior record during a pre-trial hearing. A party seeking recusal

bears the burden of producing evidence to establish bias, prejudice, or

unfairness which raises a substantial doubt as to the jurist's ability to preside

impartially.   Commonwealth v. Watkins, 108 A.3d 692, 734 (Pa. 2014)

                                      -7-
J-S03037-18



(citing Commonwealth v. Hutchinson, 25 A.3d 277, 319 (Pa. 2011)).

Appellant's claim does not meet this standard.

      Knowledge    of   a   defendant’s   criminal   history,    alone,   does   not

automatically disqualify a jurist from hearing a case. It is where, instead,

“circumstances exist showing a continuing or recurring bias against a

particular defendant or a class of cases, the trial judge should be disqualified.”

Commonwealth v. Bryant, 476 A.2d 422, 427 n. 1 (Pa.Super. 1984). See

also Commonwealth v. Boyle, 447 A.2d 250, 252 (Pa. 1982) (“The mere

participation by the presiding judge in an earlier stage of the proceeding

neither suggests the existence of actual impropriety nor provides a basis for

a finding of the appearance of impropriety.”).

      Appellant argues that the trial judge allowed her knowledge of his

criminal record, which included sex crimes against children, to skew her

perception of a video the Commonwealth offered to prove Appellant fired

gunshots at the victim. According to Appellant, the video was too dark to

identify either what caused the “flashes” depicted or who was responsible for

them. The judge, sitting as finder of fact, however, stated she had no doubt

from the video that it was Appellant holding the gun.           N.T. 7/17/14 at 7.

Moreover, the judge found that the flashes combined with the reaction of

those nearby, who scattered immediately, were consistent with the firing a

gun, and she deemed the victim credible when he testified Appellant fired




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shots at him during this episode.3             By all appearances, Judge McDermott

engaged in an objective assessment of the evidence in making her factual

findings, such that we perceive no indication of bias or partiality in her

determination.

       Appellant also points to the trial judge’s pretrial colloquy in anticipation

of Appellant’s guilty plea as evincing her bias against Appellant as a sex

offender.      Therein, the court acknowledged Appellant’s “long record”

comprising “a lot of sex cases, sex charges there[,]” as well as a conviction

for endangering the welfare of a child. N.T. 7/16/14, at 7, 10, 11. Subsequent

judicial comments during sentencing reinforce the presence of bias during

trial, Appellant maintains, as the judge stated “I react, and I have to calm

down and do this dispassionately, but I can’t ignore the fact I react to the fact

not only that you had the gun when you shouldn’t have had a gun, but you

were on house arrest.” N.T., 7/17/14 at 36.

       From this record, Appellant makes the sweeping accusation that Judge

McDermott was incapable of assessing the evidence in an impartial manner

____________________________________________


3 In the victim’s initial stationhouse statement, he recanted his previous
identifications of Appellant as the person who shot at him. He returned to his
original account 40 minutes later, admitting to investigators he did not tell the
truth in the first statement because he was scared. N.T. 7/16/14, at 58, 79-
83. It was within the exclusive province of the trial judge as finder of fact to
deem the victim’s identifications of Appellant credible despite his recantation,
which he, in any event, disavowed in both his second statement and his trial
testimony. See Commonwealth v. Brown, 52 A.3d 1139, 1168 (Pa. 2012)
(deferring to credibility determinations of fact-finder, who observed witnesses
recant earlier accounts of crime and assert explanations for inconsistent
statements under vigorous cross-examination).

                                           -9-
J-S03037-18



once she learned of Appellant’s prior sex crimes, primarily because she is a

female jurist:

      These are indeed the exact conditions under which any female,
      even Judge Barbara McDermott, could possibly, and in this case,
      did become emotionally inflamed and biased against the
      defendant, Mr. Zepprinans. The trial judge, having full knowledge
      of the defendant’s “long record,” many sex charges and
      Endangering the Welfare of a Child, developed a bias[ed] opinion
      against the defendant, and the fact that the defendant was
      convicted on Endangering the Welfare of a Child, would further
      raise the ire of anyone with the natural instincts to protect a child,
      including Judge McDermott.

Appellant’s brief at 19.

      Contrary to Appellant’s argument, the remarks of Judge McDermott

reflect not a biased disposition against Appellant but, instead, proper

contemplation of both the court’s pretrial duty to colloquy a defendant on

possible increased sentencing exposures should he choose trial over a

negotiated plea offer and its post-trial duty to engage in dispassionate

consideration of aggravating factors during sentencing.           Neither set of

comments so much as suggests, let alone establishes, that the judge harbored

bias or ill-will while she sat as finder of fact in Appellant’s criminal trial, and

Appellant points to no instance during pre-trial, trial, or sentencing where the

trial judge exhibited a bias.   Accordingly, we discern no arguable merit to

Appellant’s ineffectiveness claim based on counsel’s failure to file a motion for

recusal.

      Next, Appellant claims trial counsel ineffectively failed to call Tanya

Conover as a defense witness, even though Ms. Conover was present in court


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and, according to her PCRA affidavit, available to testify that “at know [sic]

time [Appellant] was in possession of a gun. At know [sic] time I never seen

[Appellant] shoot a gun.”     PCRA Petition, Exhibit A.      The following legal

principles apply.

      “To be entitled to relief on a claim of ineffectiveness for failure to
      call a witness, [an] appellant must demonstrate [that]: the
      witness existed, was available, and willing to cooperate; counsel
      knew or should have known of the witness; and the absence of
      the     witness's   testimony      prejudiced     [the]   appellant.”
      Commonwealth v. Birdsong, [24 A.3d 319, 334 (Pa. 2011)
      (citing Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261,
      275 (2000)). A PCRA petitioner cannot succeed on such a claim
      if the proposed witness' testimony “would not have materially
      aided him.

Commonwealth v. Johnson, 139 A.3d 1257, 1284 (Pa. 2016). “A failure to

call a witness is not per se ineffective assistance of counsel for such decision

usually involves matters of trial strategy.” Commonwealth v. Auker, 681

A.2d 1305, 1319 (Pa. 1996).

      Appellant contends that counsel’s failure to call Ms. Conover to the stand

prejudiced his defense, for she was a material witness who was “on the porch

when the alleged shooting incident is said to have occurred on July 11, 2013.”

Appellant’s brief at 30. Given the shooting victim’s inconsistent stationhouse

statements as to the identity of the person who shot him, Conover’s testimony

would have aided his defense, Appellant maintains.

      The PCRA court observes, however, that Conover’s affidavit stops short

of saying Appellant did not shoot at the victim. Instead, the court opines, the

affidavit is limited to the generic allegation that Conover never saw Appellant


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possess or fire a gun. Significantly, nowhere does Conover say when she saw

Appellant or whether she was present at the scene when shots were allegedly

fired.

         When viewed against the backdrop of compelling evidence, the PCRA

court continues, Conover’s proposed testimony as it appears in her affidavit

would not have materially aided Appellant:

         The Commonwealth presented compelling evidence that
         [Appellant] shot at the victim from his porch. The victim identified
         [Appellant] as the shooter.6       When police first encountered
         [Appellant] after the shooting, his clothing matched the
         description the victim had provided. Surveillance video from the
         [Appellant’s] home showed him on the porch at the time of the
         shooting. Based on the flashes of light and the [Appellant’s]
         movement on the video, the video conclusively established that
         he had fired a gun. Finally, police discovered a 32-caliber FCC on
         the ground near the porch.


         6 Although the victim initially failed to identify [Appellant during
         the first part of his stationhouse interview], he stated that he
         failed to do so because he was afraid.


PCRA Court Opinion, 5/4/17 at 7-8.

         It was Appellant’s burden to demonstrate there was a reasonable

probability that the outcome of his trial would have been different had counsel

called Ms. Conover to testify. Here, the PCRA judge, who had presided over

Appellant’s non-jury trial, observed that she had found incriminating both the

security video and the victim’s testimony, both of which were vigorously

contested at trial.       Critically, Ms. Conover’s vague affidavit, devoid of

specificity with respect to time and place, never directly addressed this

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evidence implicating Appellant as the person who fired shots at the victim

from the porch.    Under this record, Appellant has failed to show the PCRA

court erred or abused its discretion in dismissing his petition without a hearing,

such that we will not disturb the court’s ruling on this issue.

      In Appellant’s next ineffective assistance of counsel claim, he argues

counsel should have raised a sufficiency of the evidence claim either in a post-

trial motion for acquittal or on direct appeal given the Commonwealth’s failure

to prove the identity of the shooter.

      When an appellant complains that a conviction is infirm due to lack of

sufficient evidence, we review such claims under the following standards:

            The standard we apply when reviewing the sufficiency
            of the evidence is whether viewing all the evidence
            admitted at trial in the light most favorable to the
            verdict winner, there is sufficient evidence to enable
            the fact-finder to find every element of the crime
            beyond a reasonable doubt. In applying the above
            test, we may not weigh the evidence and substitute
            our judgment for the fact-finder. In addition, we note
            that the facts and circumstances established by the
            Commonwealth need not preclude every possibility of
            innocence. Any doubts regarding a defendant's guilt
            may be resolved by the fact-finder unless the
            evidence is so weak and inconclusive that as a matter
            of law no probability of fact may be drawn from the
            combined circumstances. The Commonwealth may
            sustain its burden of proving every element of the
            crime beyond a reasonable doubt by means of wholly
            circumstantial evidence. Moreover, in applying the
            above test, the entire record must be evaluated and
            all evidence actually received must be considered.
            Finally, the trier of fact while passing upon the
            credibility of witnesses and the weight of the evidence
            produced is free to believe all, part or none of the
            evidence.

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      Commonwealth v. Nahavandian, 849 A.2d 1221, 1229–30
      (Pa.Super. 2004) (citations omitted).        Furthermore, when
      reviewing a sufficiency claim, our Court is required to give the
      prosecution the benefit of all reasonable inferences to be drawn
      from the evidence. Commonwealth v. Robinson, 817 A.2d
      1153, 1158 (Pa.Super. 2003), quoting Commonwealth v.
      Widmer, [744 A.2d 745 (Pa. 2000)]. However, “the inferences
      must flow from facts and circumstances proven in the record, and
      must be of such volume and quality as to overcome the
      presumption of innocence and satisfy the jury of an accused's guilt
      beyond a reasonable doubt.” Id., quoting Commonwealth v.
      Scott, 597 A.2d 1220, 1221 (Pa. 1991). “The trier of fact cannot
      base a conviction on conjecture and speculation and a verdict
      which is premised on suspicion will fail even under the limited
      scrutiny of appellate review.” Id.

Commonwealth v. Matthews, 870 A.2d 924, 928 (Pa.Super. 2005).

      After a thorough review of the record, we conclude that even if prior

counsel had raised a sufficiency challenge in either a post-trial acquittal

motion or a direct appeal, the challenge lacks merit. Viewed in a light most

favorable to the Commonwealth as verdict winner, the evidence recounted

above proved beyond a reasonable doubt that it was Appellant who aimed a

gun and fired shots at the victim without justification. Specifically, the victim

implicated Appellant in his 911 call, in his complaint to the investigating

officer, during the second part of his stationhouse interview with police, and

on the witness stand at Appellant’s trial. Even if the trial judge had not viewed

the video as corroborative of the victim’s accusation, she would still have been

free to accept the victim’s testimony as sufficient to prove Appellant’s guilt.

See Commonwealth v. Johnson, --- A.3d ----, 2018 Pa.Super. 40, ** 4-6

(holding uncorroborated testimony of a single witness sufficient to sustain



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conviction so long as testimony addresses every element of crime charged);

Commonwealth v. Filer, 846 A.2d 139, 141–142 (Pa.Super. 2004)

(uncorroborated testimony of a victim, if believed by the trier of fact, is

sufficient to convict, despite contrary evidence from the defense)

      As discussed, however, the victim’s testimony was substantiated by

Appellant’s home security video depicting Appellant holding an object from

which flashes emanated, causing people to jump around and scatter

immediately from the porch. The following morning, investigators collected a

fired cartridge casing near the porch while executing a search warrant.

      Based on this evidence, the court’s finding that Appellant fired shots at

the victim was a reasonable one. Hence, as there is no merit to the underlying

sufficiency challenge Appellant levels, we conclude the PCRA court did not err

when it rejected Appellant’s ineffective assistance of counsel claim as lacking

arguable merit.

      Finally, Appellant contends counsel was ineffective for failing to object

to or move to suppress the victim’s second statement implicating Appellant as

the person who shot at him. Specifically, the victim recanted his initial 911

and crime scene accusations of Appellant when he provided his first statement

to police at the stationhouse. Investigators placed the victim in a room and

closed the door for approximately 40 minutes before bringing the victim back

to resume the interview, at which time they recorded the victim’s identification

of Appellant as the shooter.




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        According to Appellant, counsel provided ineffective assistance of

counsel when she failed to move for suppression of the victim’s statement as

the product of coercion, particularly since the victim suffered from mental

illness and would have been easily intimidated into giving a false statement

to appease investigators. We disagree.

        Generally, to have standing to pursue a suppression motion under

Pa.R.Crim.P. 581, the defendant's own constitutional rights must have been

infringed.    Commonwealth v. Enimpah, 106 A.3d 695, 698 (Pa. 2014).

Here, Appellant fails to identify what constitutional right of his was implicated

by the investigators’ manner of interviewing the victim. To the extent that

Appellant, therefore, seeks to base his ineffectiveness claim on counsel’s

failure to invoke the constitutional rights of the victim to be free from such an

interview, he may not prevail.

        If, instead, Appellant’s argument is understood as challenging counsel’s

failure to file a motion in limine4 contesting the admission of the victim’s
____________________________________________


4   This Court has stated the following regarding motions in limine:

        A motion in limine is used before trial to obtain a ruling on the
        admissibility of evidence. It gives the trial judge the opportunity
        to weigh potentially prejudicial and harmful evidence before the
        trial occurs, thus preventing the evidence from ever reaching the
        jury. A motion in limine differs from a suppression motion in that
        a suppression motion is designed to preclude evidence that was
        obtained in violation of a defendant's constitutional rights, while a
        motion in limine precludes evidence that was constitutionally
        obtained but which is prejudicial to the moving party.




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allegedly unreliable and prejudicial identification, we would still find his

argument affords him no relief. Appellant’s challenge turns on the credibility

and testimonial capacity of the victim, both of which were the subject of

vigorous cross-examination conducted by trial counsel in her attempt to

expose the victim’s testimonial weaknesses.        The trial court nevertheless

found the victim credible, and the notes of testimony provide support for the

court’s determination.         Therefore, we may not disturb the credibility

determinations of the court in this regard.

     For the foregoing reasons, judgment of sentence is AFFIRMED.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/18




____________________________________________


Commonwealth v. Reese, 31 A.3d 708, 715 (Pa.Super. 2011) (quoting
Commonwealth v. King, 689 A.2d 918, 921 (Pa.Super. 1997)).



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