J-S17005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

DARRYL B. NEWMAN,

                          Appellant                   No. 1318 EDA 2017


            Appeal from the PCRA Order Entered March 31, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0000730-2012


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 17, 2019

      Darryl B. Newman (Appellant) appeals from the post-conviction court’s

March 31, 2017 order denying his first, timely petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.         After review, we

affirm.

      On appeal, Appellant sets forth the following three claims in his

“Statement of Questions Involved” section of his brief:

   1. Did the PCRA [c]ourt err in finding [Appellant’s]claim that trial counsel
      was ineffective for failing to litigate a Rule 600 motion was without merit
      and dismissing without [a] hearing?

   2. Did the PCRA [c]ourt err in finding [Appellant] failed to meet his burden
      of proving trial counsel was ineffective for failing to call character
      witnesses at trial?

   3. Did the PCRA [c]ourt in finding [Appellant’s] claim that trial counsel was
      ineffective for failing to litigate a Motion to Suppress Ramsey’s in- and
J-S17005-19


      out- of court identifications was without merit and dismissing without
      hearing?

Appellant’s brief at 4.

      In addressing Appellant’s issues, we are guided by the following:

      “In reviewing the propriety of an order granting or denying PCRA
      relief, an appellate court is limited to ascertaining whether the
      record supports the determination of the PCRA court and whether
      the ruling is free of legal error.” Commonwealth v. Johnson, …
      966 A.2d 523, 532 ([Pa.] 2009). We pay great deference to the
      findings of the PCRA court, “but its legal determination are subject
      to our plenary review.” Id.

Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013).

      We have reviewed the certified record, the briefs of the parties, and the

applicable law. Additionally, we have reviewed the thorough, well-reasoned

opinion of the Honorable Charles J. Cunningham, III, of the Court of Common

Pleas of Philadelphia County. We conclude that Judge Cunningham’s extensive

opinion accurately disposes of the issues presented by Appellant. See PCRA

Court’s Opinion, 5/9/18. Accordingly, we adopt his opinion as our own and

affirm the order denying Appellant’s PCRA petition for the reasons set forth

therein.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/19

                                     -2-
                                                                                                          Circulated 04/23/2019 01:42 PM
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                  FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
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     COMMONWEALTH OF PENNSYLVANIA                                                                              •  l\f
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                                                                          13 18 ED A 2017
                    V.
                                                                          CP·S 1-CR ·0000730-2012
     DARRYL NEWMAN                                                               (PCRA).




                                                                                                                 Ill
                                             OPINION
                                                                          \111111\ 1\111111\UII \
     STATEMENT OF THE CASE
                                                             I
                                                             \....,   �   ... ...   - .   -
                                                                                          8107228901
                                                                                               .   .. .   .. .    "    ,:-   .
            Defendant is appealing the Court's dismissal of his meritless PCRA Petition. After

     Defendant's convictions on the charges of Aggravated Assault and Possession' of an

     Instrument of a Crime ("PIC") were upheld on direct appeal, he filed the instant counseled

     PCRA Petition alleging ineffective assistance of trial counsel. The Court finds that all of

     Defendant's complaints are without merit.


     PROCEDURAL HISTORY

            On February 24, 2014, at the conclusion of his jury trial, Defendant was found

     guilty on the charges of Aggravated Assault and PIC, and not guilty on the charge of ,

     Attempted Murder.     On May 28, .2014, Defendant wassentenced .on .the .charge of

     Aggravated Assault 'to uperlod of confinement ·in-·a state correctional-faci-Hty-of-9-to +S-

     years and to a consecutive period of probation of 5 years. On the PIC charge, Defendant·

     was sentenced to a concurrent period of probation of 5 years, for a total aggregate sente�ce

     of 7 to 15 years confinement fo Hawed by a period of probation of 5 years.
          On June 251 2014, Defendant timely filed a direct appeal to the Superior Court of

Pennsylvania at 1910 EDA 2014. On May 19, 2015, the Superior Court of Pennsylvania

dismissed Defendant' s Appeal for failure to file a brief.

          On April 5, 2016, Defendant filed the instant counseled PCRA.                      The

Commonwealth filed its motion and brief to dismiss· Defendant's PCRA Petition on

November 29, 2016, to which Defendant filed a response on February I 01 2017.

          On February 1 O, 2017, after careful review of the record, the Court issued its notice,

pursuant to the Pennsylvania Rules of Criminal Procedure Rule 907, advising Counsel and

Defendant that it intended to dismiss Defendant' s petition within twenty days of issuance.

On March 31, 2017, the Court entered an Order dismissing Defendant's PCRA Petition for

lack of merit,

         On Apri� 24, 2017, Defendant timely filed the instant appeal to the Superior Court

of Pennsylvania. On April 25, 2017, this Court filed and served on Defendant an Order

pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, directing

Defendant to file and serve a Statement of Errors Complained of on Appeal, within twenty-

011e   days of the Court's Order. On May 16, 2017, Defendant filed his "Appellant's Rule

1925 Statement," in which he raises three issues, namely:

             l. "This Court erred by dismissing Defendant's PCRA petition without a
                hearing because trial counsel was ineffective for failing to litigate a
                meritorious Rule 600 motion.
             2. This Co"rt�rr�<l _by dismissing De(im.dant's PCRA petition withou!_il __
                hearing because trial counsel was ineffective for foiling to call favorable
                character witnesses at trial who would have attested to Defendant's
                reputation of peacefulness.
             3. This Court erred by dismissing Defendant's PCRA petition without a
                hearing because trial counsel was ineffective for failing to litigate a Motion
                to Suppress Ramsey's Identification of Petitioner at the Photo Array as well
                As His Subsequent In-Court Identification of Him."


                                                2
 DISCUSSION OF THE ISSUES RAISED

   I.   DEFENDANT IS NOT ENTITLED TO AN EVIDENTIARY HEARING.

        Defendant complains that the Court erred by dismissing his three failing averments

 without a hearing. This argument is without merit.

        "There is no absolute right to an evidentiary hearing on a PCRA Petition."

 Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. Ct. 2008). "A PCRA petitioner

 is not entitled to an evidentiary hearing as a matter of right, but only where the petition

 presents genuine issues of material fact." Commonwealth v. Keaton, 45 A.3d I 050, l 094

· (Pa. 2012). Pa. R. Crim. P. Rule 907 provides that courts have the discretion to dismiss a

PCRA petition without a hearing if the court finds that "there are no genuine issues

concerning any material fact and that the defendant is not entitled to post-conviction

collateral relief, and no purpose would be served by any further proceedings." "[T]o 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. 11

Commonwealth v. Sneed, 45 A.3d l 096, 1106 (Pa. 2012) Quoting; Commonwealth v,

D'Amoto, 856 A.2d 806, 820 (Pu. 2004).

        Here, Defendant's argument that an evidentiary hearing should have been held prior

to the dismissal of his PCRA Petition must fail because the substantive arguments advanced

by Defendant are without merit. As will be discussed below, Defendant failed to meet his

burden of proving by a preponderance of the evidence that his trial counsel was ineffective.




                                                3
Thus, with there being no issues of material fact on the record, there was no legitimate

purpose to holding an evidentiary hearing,


 II.    TRIAL COUNSEL WAS EFFECTIVE.

        In his "Rule 1925 Statement," Defendant complains that trial counsel was

ineffective for three reasons. Specifically, he claims counsel was ineffective for failing to

litigate a Rule 600 motion, failing to call character witnesses at trial, and failing to litigate

a motion to suppress the identifications made by Tyreese Ramsey. Defendant is complaints

are without merit.

       "It is well-established that counsel is presumed effective, and the defendant bears

the burden of proving ineffectiveness." Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa.

20 l 1 ). In order to be eligible for PCRA relief based on an ineffectiveness claim, Defendant

must prove by a preponderance of the evidence "that: (1) the underlying substantive claim

has arguable merit; (2) counsel whose effectiveness is being challenged did not have a

reasonable basis for his or her actions or failure to act; and (3) the defendant suffered

prejudice as a result of counsel's deficient performance." Id., at 438, 439. (Internal

citations ornitted.) 0A claim of ineffectiveness will be denied if the defendant's evidence

fails to meet any one of these prongs." Id., at 439.

       Regarding the prong of reasonableness, B[a] chosen strategy will not be found to

have lacked a reasonable basis unless it is proven that an alternative not chosen offered a

potential   for success substantially greater than the course actually pursued:'

Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (Internal citations omitted).

"To establish prejudice, a petitioner must demonstrate that there is a reasonable probability

that, but for trial counsel's errors, the result of the proceeding would have been different."



                                               4
Commonwealth v. Simpson> 66 A.Jd 253, 277 (Pa. 2013) (Internal citations omitted). In

accord: Strickland   v.   Washington, 104 S. Ct. 2052 ( 1984). "Strategy is not measured

through hindsight against alternatives not pursued, so long as trial counsel had a reasonable

basis for the decision made." Commonwealth v. Williams, 899 A.2d 1060, I 064 (Pa.

2006). "Counsel will not be found ineffective for failing to raise a meritless claim."

Commonwealth v. Roney, 79 A.Jd 595, 604 (Pa. 2013).

           a. TRIAL COUNSEL WAS NOT INEFFECTJVE FOR FAILING TO
               RAISE A MERITLESS RULE 600 CLAIM.
       In his statement of errors, Defendant first argues that trial counsel was ineffective

for failing to litigate a Rule 600 motion. Defendant's complaint is without merit.

       Pa. R. Crim. P. 600 ("Rule 600") "serves two equally important functions: ( l) the

protection of the accused's speedy trial rights, and (2) the protection of society. In

determining whether an accused's right to a speedy trial has been violated, consideration

must be given to society's right to effective prosecution of criminal cases, both to restrain

those guilty of crime and to deter those contemplating it." Commonwealth v, Jefferson,

741 A.2d 222, 225 (Pa. Super. Ct. 1999). Rule 600 was "not designed to insulate the

criminally accused from good faith prosecution through no fault of the Common- wealth."

Id.

       Rule 600 states, in relevant part: "Trial in a court case in which a written complaint

is filed against the defendant shall commence within 365 days from the date on which the

complaint is filed ... [P]eriods of delay at any stage of the proceedings caused by the

Commonwealth when the Commonwealth has failed to exercise due diligence shall be

included in the computation of the time within which trial must commence. Any other

periods of delay shall be excluded from the computatlon." Pa. R. Crim. P. 600. "If the


                                              5
Commonwealth attempts to bring a defendant to trial beyond the 365 day-period prescribed

by Rule 600, and the defendant flies a Rule 600 motion to dismiss, the court must assess

whether there is excludable time and/or excusable delay." Commonwealth v. Hunt, 858

A.2d 1234, 1241 (Pa. Super. Ct. 2004).

        mExcludable time' is defined in Rule 600(C) as the ... period of delay at any stage
        of the proceedings as results from: (a) the unavailability of the defendant or the
        defendant's attorney; (b) any continuance granted at the request of the defendant
        or the defendant's attorney. 'Excusable delay' is not expressly defined in Rule
        600, but the legal construct takes into account delays which occur as a result of
        circumstances beyond the Commonwealth's control and despite its due diligence."

Id. (Internal citations ornitted.) Excludable time is added as an extension to the original

365-day date in order to calculate the "adjusted run date." Commonwealth v. Preston, 904

A.2d I, 11 (Pa. Super. Ct. 2006). Likewise, "[a] period of delay that is excusable pursuant
                              .
to Rule 600(0) results in an extension to the adjusted nm date." Commonwealth v. Ramos,

936 A.2d 1097, 1103 (P�. Super. Ct. 2007).

       "Even where a violation of Rule [600] has occurred, the motion to dismiss the

charges should be denied if the Commonwealth exercised due diligence and ... the

circumstances occasioning the postponement were beyond the control of the

Commonwealth." Id. In accord; Preston, at l l. "It is well-settled that the Commonwealth

cannot control the schedule of the trial courts and that therefore judicial delay can support

the grant of an extension of the Rule 600 rundate." Commonwealth v. Trippett, 932 A.2d

188, 198 (Pa. Super. Ct. 2007) (Internal citations omitted.) "Accordingly, where a trial-

ready prosecutor must wait several months due to a court calendar, the time should be

treated as 'delay' for which the Commonwealth is not accountable." Commonwealth v. -

Mills, 162 A.3d 323, 325 (Pa. 2017). If such is the case, the trial court must establish "it



                                             6
has devoted a reasonable amount of its resources to the criminal docket and that it

scheduled the criminal trial at the earliest possible date consistent with the court's

business." Commonwealth v. Brown, 875 A.2d 1128, 1135 (Pa. Super. Ct. 2005), quoting

Commonwealth v. Williams, 726 A.2d 389, 392 (Pa. Super. 1999).

        After careful review of the record, the Court agrees with the Commonwealth's

calculation of excludable and excusable delays in the case at hand, and finds no Rule 600

violation. The noteworthy dates, as reflected in the record, are as follows:

        Defendant was arrested on December 30, 2011, resulting in a mechanical run date

of December 30, 20 I 2. A scheduling conference was held on March 22, 2012, and the case

was listed for jury trial on the "earliest possible date given" consistent with the Court's

schedule, which was June 14, 2012. This resulted in 84 excusable days. On June 14, 2012,

the case was continued to the "earliest possible date" consistent with the Court's schedule,

which was October 18, 2012. This resulted in 126 excusable days. On October 18, 2012,

both the Commonwealth and Defendant filed a joint request for a continuance to October

23, 2012. This resulted in 5 excludable days. On October 23, 2012, Defendant requested

a continuance, and the case was listed for November 14, 2012. This resulted in 22

excludable days. On November 14, 2012, the docket reflects that the case was continued

with "Time Ruled Excludable." This resulted in 86 excludable days." On February 28,

2013, a scheduling conference .was held, and the case was listed for jury trial on February

24, 2014. The docket reflects that this was the "earliest possible date given." This resulted

in 361 excusable days between February 28, 20 I J, and when jury selection began on

February 24, 2014.




                                             7
       As indicated above, the docket reflects 684 excludable/excusable days from the

time Defendant was charged to the time his trial commenced. This results' in an adjusted

run date of no earlier than August 6, 2014. As Defendant's trial began on February 24,

2014, no Rule 600 violation exists. Thus, trial counsel cannot be found ineffective for

failing to raise a meritless claim. Roney, at 604.

           b. DEFENDANT HAS FAILED TO DEMONSTRATE THAT TRIAL
              COUNSEL WAS    INEFFECTIVE FOR NOT CALLING
              CHARACTER WITNESSES.
       Defendant next complains that trial counsel was ineffective for failing to call

character witnesses at trial. As Defendant has not only foiled to meet the requirements of

the Pennsylvania Rules of Criminal Procedure, but has also failed to show that trial

counsel's decision lacked any strategic basis or prejudiced him, the claim is without merit.

       Pa. R. Crim. P. 902 states, in relevant part that, in the event that a petition for post-

conviction relief involves a request for an evidentiary hearing, "[tjhe request for an

evidentiary hearing shall include a signed certification as to each intended witness, stating

the witness's name, address, and date of birth, and the substance oft he witness's testimony.

Any documents material to the witness's testimony shall also be included in the petition."

Pa. R. Crim. P. 902(A)( 15). See also, Pa. C. S. A. § 9545 (d)( I). "Failure to substantially

comply with the requirements of this paragraph shall render the proposed witness's

testimony inadmissible." Commonwealth v, Brown, 767 A.2d. 576, 582 (Pa. Super. Ct.

200 l), While an affidavit is notrequired, "[ejither the witness, his attorney, the defendant's

attorney, or the petitioner himself> the defendant himself can sign a certification saying to

his best knowledge that this was an accwa�e statement of what the witness would testify

to." Id. at 583. In accord; Commonwealth v. Pander, 100 A.3d 626 (Pa. Super. Ct. 2014).




                                               s
        Here, in his "Attorney Certification" (Defendant's Petition For Relief, 4/5/16, pg.

8), Defendant merely lists the names of three witnesses, claiming that they would allegedly

be available to testify at an evidentiary hearing. He fails to indicate their addresses, dates

of birth, 01· whether he even spoke to them regarding this matter. He also fails to describe

the substance of their testimony, other than that they «knew/know" Defendant and that he

allegedly has a reputation for peacefulness.        Therefore, Defendant's claim for an

evidentiary hearing fails at the outset, as his petition does not satisfy the requirements of

Pa, R. Crim. P. 902(A) (15) and Pa. C. S. A. § 9545 (d)(t).

       Alternatively, even if Defendant had satisfied the requirements of Pa. R. Crim, P,

902(A)(l 5), his claim fails on its merits. "The failure to call character witnesses does not

constitute per se ineffectiveness." Commonwealth v. Treiber, 121 A.3d 435, 463 (Pa.

2015). In order to establish that counsel was ineffective for failing to call a witness, a

defendant must prove that "( 1) the witness existed; (2) the witness was available to testify

for the defense; (3) counsel knew of, or should have known of, the existence of the witness;

(4) the witness was willing to testify for the defense; and (5) the absence of the testimony

of the witness was so prejudicial as to have denied the defendant a fair trial." Id., at 464.

A defendant will only be able to establish prejudice if he can demonstrate that he was

denied a fair trial due to the absence of the testimony of the proposed witness.

Commonwealth v. Kita/ii, 806 A.2d 415, 422 (Pa. Super. Ct 2002),

       Additionally, trial counsel will not be found ineffective if it is determined that they

had a "reasonable, strategic basis in not calling character witnesses." Treiber, at 464

(finding that counsel was not ineffective for failing to present good character evidence

because he did not want to risk the introduction of bad character evidence.)




                                             9
        HWe cannot emphasize strongly enough, however, that our inquiry ceases and
        counsel's assistance is deemed constitutionally effective once we are able to
        conclude that the particular course chosen by counsel had some reasonable basis
        designed to effectuate his client's interests. The test is nol whether other alternatives
        were more reasonable; employing a hindsight evaluation of the record. Although
        weigh the alternatives we must, the balance tips in favor of a finding of effective
        assistance as soon as it is determined that trial counsel's decisions had any
        reasonable basis."

Commonwealth v. Blount, 647 A.2d I 99, 207 (Pa. 1994). In Blount, the Pennsylvania

Supreme Court found that trial counsel had a reasonable basis for not presenting character

witnesses because, "[ajside from the obvious bias of these witnesses arising from their

close association with Appellant. .. it is likely that these witnesses would have provided

evidence of Appellant's bad reputation arising from his activities including those as a drug

dealer." Id.

        Here, Defendant has failed to show that trial counsel's decision to put on character

evidence lacked any reasonable basis. At the time at which he committed the offense in

the instant case, Defendant was out on bail for a Possession With Intent to Deliver charge

in Delaware County, which he later pied guilty to on February 17, 2012. (N.T.15/28/2014,

pg. 20.) (CP-23-000539l-2011.) Trial counsel was aware of this fact. (N.T.) 5/28/2014>

pg. 26.) Given his knowledge that Defendant was not only awaiting trial for a drug charge,

but that he was out on bail for that charge when he committed the offense in the case at

hand, trial counsel acted reasonably by not calling character witnesses. Defendant's prior

bad acts would have been grounds for impeachment on any introduction of Defendant's

alleged good character.

       Furthermore, Defendant fails to show a reasonable probability that the presentation

or°clrnracter evidence would have altered the outcome of his trial. Extensive evidence of

guilt was presented against him, including eye witness Tyreesc Ramsey's ability to identify


                                               10
Defendant as the shooter both in court and in a photo array, his testimony that he had not

only seen Defendant prior to the day of the shooting, but that he knew him by his nickname,

"D Man," and the consistent descriptions of Defendant from Mr. Ramsey and victim

Shiehean Carter. (N.T., 2/25/2014, pgs. 67, 73, 80-81.) Therefore, character evidence

would not I ikely have altered the outcome of trial.

       Thus, as Defendant has failed to demonstrate that he was prejudiced by trial

counsel's decision to not call character witnesses at trial, or that the decision lacked any

reasonable strategic basis, Defendant's claim fails.

           c. TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO
              LITIGATE A MERITLESS MOTION TO SUPPRESS.
       Finally, Defendant complains that trial counsel was ineffective for failing to litigate

a motion to suppress Mr. Ramsey's identification of Defendant during a photo array, as

well as his in-court identification. This claim is without merit.

                   POLICE MISCONDUCT DID NOT RESULT IN AN UNDULY
                  SUGGESTIVE PHOTO ARRAY.
       The purpose of motions to suppress identification evidence is to prevent police

misconduct. Commonwealth v. Sanders, 42 A.3d 325, 330 (Pa. Super. Ct. 2012). Citing

Commonwealth v. O'Bryant, 467 A.2d 141 16 (Pa. Super. Ct. 1983). "Thus, where a

defendant does not show that improper police conduct resulted in a suggestive

identification, suppression is not warranted." Sanders, at 330. In order for a pre-trial

identification to be suppressed, there must be facts to "demonstrate that the identification

procedure was so imperrnissibly suggestive as to give rise to a very substantial likelihood

of irreparable misidentification." O'Bryant, at l 7. In accord; Commonwealth v. Lark, 91

A.Jd 165, 171-72 (Pa. Super. Ct. 2014).




                                             ll
        Our Supreme Court has held that photographic identifications are not unduly

 suggestive unless "the procedure creates a substantial likelihood of misidentification."

 Commonweatth v. Fisher. 769 A.2d 1116, 1126 (Pa. 2001).             In Commonwealth v.

 Fulmore, 25 A.3d 340, 347 (Pa. Super. Ct. 2011), the court found that a detective's use of

 the phase "Which one comes to mind?" during a photo array "may have implied that the

 assailant was included within the array:' but, as there was no evidence that the detective

 directed the witness's attention to a specific picture, the phrase was of "no special

significance." Id. "Moreover, providing such information to the witness before he views

the lineup does not render the identification procedure unduly suggestive." Id. ot 347-348.

        Here, Defendant's claim fails because there is no evidence of improper police

conduct, or of an impermissibly suggestive photo array: Philadelphia Police Detective

Craig Fife testified that a few days following the shooting, he administered a photo array

to Mr. Ramsey containing eight photos. Defendant's photo was "in the fourth posilion on

the top." (N .T., 2/25/20 I 4, pgs. 17 8-179.) Mr. Ramsey identified Defendant, and told

Detective Fife that he was "100 percent sure" that this was the person who shot his brother.

(N.T., 2/25/2014, pgs. 179, 182.) With the exception of Detective Fife's testimony, the

record is completely silent with regard to police conduct before or while Mr. Ramsey was

making his identification.

       Defendant bases his complaint on the language in a question posed by the

Commonwealth to Mr. Ramsey, asking "Do you recall, when the police showed you that

photo array, they asked you if you could identify the person in that array, if you could, if

anyone, that committed the shooting a few days prior?" (N.T. 2/25/2014,
                                                                     .  pg. -···
                                                                            80.)
                                                                   ...


However, nowhere in the record does it indicate that Detective Fife made such a statement.




                                            12
 Alternatively, even if he had made that statement to Mr. Ramsey, our Supreme Court has

 made clear that such language is not impermlssibly suggestive absent evidence that the

detective directed the witness's attention to a specific photo. Id.

        Thus, there being no evidence on the record that police directed Mr. Ramsey's

attention to Defendant's photo in any way, the photo array was not unduly suggestive and

Defendant's claim fails.

                     THE IN-COURT IDENTIFICATION WAS RELIABLE.
        Defendant's argument that the in-court identification of him should also have been

suppressed fails as well. "[Ijn-court identifications, despite impermissibly suggestive pre-

trial procedures, are admissible if there exists an independent basis for the identifications."

Commonwealth v. Abdul-Salaam, 678 A.2d 342, 349 (Pa. 1996). In determining whether

an independent basis for the identification exists, courts are to look at "(I) the opportunity

of the witness to view the criminal at the time of the crime; (2) the witness' degree of

attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of

certainty demonstrated by the witness at the confrontation; and (5) the length of time

between the crime and the confrontation." Id.

       Here, Mr. Ramsey unequivocally identified Defendant as the shooter from the

witness stand. (N.T., 2/25/2014, pgs. 67-68.) He testified credibly that he had seen

Defendant multiple times prior to the shooting in the areas of 41 �• and 4211d of Holly and

Ogden Streets. He even knew the Defendant by his nickname, "D Man," and was able to

recall what he was wearing on the day of the incident. (N.T., 2/25/2014, pgs. 73, 82-83.)

Additionally, Mr. Ramsey testified that he had been looking up the street in the direction

of the shooter for a full minute prior to the shooting> and that he could see "all the way

down the street." (N.T., 2/25/2014, pgs. 135-137.) Therefore, based on Mr. Ramsey's


                                              13
ability to unequivocally identify Defendant both in-court and in a photo army, coupled with

his prior acquaintance with Defendant, the detail of his description, and his ability to view

Defendant on the day of the shooting, the identification evidence in the case at hand would

not have been suppressed. Thus, trial counsel is not ineffective for failing to litigate a

rneritless motion to suppress. Commonwealth v. Wayne, 720 A.2d 456, 469 (Pa. 1998).


CONCLUSION

       In conclusion, the Court finds that all averments in Defendant's PCRA Petition are

without merit and were properly dismissed.




May 9, 2018




                                             14
