J-S21002-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  :        IN THE SUPERIOR COURT OF
                                              :              PENNSYLVANIA
                Appellee                      :
                                              :
                  v.                          :
                                              :
AARON VAUGHN HENDERSON                        :
                                              :
                Appellant                     :        No. 15 WDA 2016

               Appeal from the PCRA Order December 1, 2015
             in the Court of Common Pleas of Allegheny County,
            Criminal Division, at No(s): CP-02-CR-0014877-2010

BEFORE:     LAZARUS, DUBOW, and STRASSBURGER, JJ.*

DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED: MAY 18, 2017

      Because   the    PCRA   court   erred       by   denying   Appellant   relief,   I

respectfully dissent and offer the following analysis.

      On April 19, 2011, our Supreme Court granted allocatur on the issue

of whether a trial court should have the discretion to permit expert

testimony regarding memory, perception, and race as it related to

eyewitness testimony. See Commonwealth v. Walker, 17 A.3d 921 (Pa.

2011).    Appellant’s trial commenced on November 30, 2011, and the

Commonwealth presented the eyewitness testimony of Rhonda Johnson. In

concluding the evidence was sufficient to sustain Appellant’s conviction, this

Court pointed out that “the jury credited Johnson’s repeated identifications

of [Appellant] as the shooter.” Commonwealth v. Henderson, 93 A.3d

519 (Pa. Super. 2013) (unpublished memorandum).



*Retired Senior Judge assigned to the Superior Court.
J-S21002-17


      Despite the fact that our Supreme Court had granted allocatur in

Walker, counsel for Appellant did not file a motion to present expert

testimony for the purpose of preserving this issue in the event the Supreme

Court would join “courts in 44 states and the District of Columbia [in

permitting]   such   testimony   at   the   discretion   of   the    trial   judge.”

Commonwealth v. Walker, 92 A.3d 766, 782 (Pa. 2014).                  On May 28,

2014, the Supreme Court concluded that Pennsylvania would indeed join the

vast majority of states in permitting such testimony.               At that point,

Appellant’s judgment of sentence had been affirmed by this Court, and his

petition for allowance of appeal was being considered by our Supreme Court.

Accordingly, his judgment of sentence was not yet final.1

      In his timely-filed PCRA petition, Appellant contends that trial counsel

was ineffective for failing to preserve this issue. The PCRA court, and now

the Majority here, conclude counsel was not ineffective because at the time

of trial, Pennsylvania law did not permit counsel to call such an expert. We

recognize that counsel “will not be deemed ineffective for failing to anticipate

a change in the law.” Commonwealth v. Cam Ly, 980 A.2d 61, 96 (Pa.

2009). However, the issue in this case is whether trial counsel should have

been aware of the grant of allocatur in Walker and preserved the issue for


1
  Neither this Court nor the Supreme Court has decided whether the new
evidentiary rule announced in Walker should be retroactive. However, that
does not matter in this case because Appellant’s judgment of sentence was
not final when Walker was decided; so no analysis of retroactivity is
required.

                                      -2-
J-S21002-17


the   purposes   of appeal    in   the   event   the   Supreme   Court   changed

Pennsylvania law.2

      Our examination of case law reveals no cases directly on point in

Pennsylvania.3 Moreover, the Circuit Courts of Appeal are divided as to how

such matters should be handled.4 Under the facts of this case, where our

Supreme Court adopted a rule that was present in 44 other jurisdictions, I

believe that counsel could have had no reasonable basis for not knowing

about Walker and then preserving this issue.            Because Appellant was

prejudiced by trial counsel’s ineffectiveness, he is entitled to a new trial.




2
  Trial counsel submitted an affidavit stating that he was not aware of the
grant of allocatur in Walker.
3
  Our Supreme Court addressed a Walker-related issue in Commonwealth
v. Cousar, 154 A.3d 287 (Pa. 2017). In that case, Cousar was charged
with capital murder with respect to a series of crimes including murders that
occurred in 1999. At his 2001 trial, he was found guilty, and his judgment
of sentence was affirmed by our Supreme Court in 2007. In 2017, our
Supreme Court considered his timely-filed PCRA petition. In that petition, he
alleged that trial counsel was ineffective for failing to file a motion to permit
“testimony in the area of eyewitness identification. Id. at 303. Our Supreme
Court concluded that Appellant was not entitled to an evidentiary hearing or
relief for a “claim raised on a collateral attack approximately fifteen years
after trial, and following a change in the law as any examination of the
reasonableness of counsel’s chosen course would necessarily entail hindsight
analysis.” Id. The instant matter is distinguishable because the Supreme
Court granted allocatur prior to Appellant’s trial.
4
  For a comprehensive analysis of this issue, see Ruth Moyer, Counsel As
“Crystal Gazer”: Determining the Extent to Which the Sixth Amendment
Requires That Defense Attorneys Predict Changes in the Law, 26 Geo. Mason
U. Civ. Rts. L.J. 183 (2016).

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