J-S13025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TOSHAAN OLIVER

                            Appellant                  No. 3452 EDA 2015


                  Appeal from the PCRA Order October 26, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008556-2011


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

MEMORANDUM BY LAZARUS, J.:                            FILED MARCH 20, 2017

        Toshaan Oliver appeals pro se from the trial court’s order dismissing

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. After careful review, we affirm.

        The trial court set forth the relevant factual background of the case as

follows:

        On July 10, 2011, at approximately 2:30 a.m., Complainant[,
        Leonard Kobb,] was in his home on Reger Street in Philadelphia
        when he heard a commotion around the corner. He approached
        the scene, described as “chaotic,” [and] found his girlfriend,
        Theresa Martina (“Martina”), fighting with [Oliver’s] girlfriend[,]
        Angie[,] and another woman. There were approximately fifty
        people observing the altercation. [Oliver] and Martina’s brother,
        Reggie, were also about to fight at the scene. Reggie and
        Martina’s father attempted to break up the fight while other
        people in the crowd tried to hold back [Oliver]. Complainant
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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        tried to intervene in the fight involving his girlfriend but was
        restrained.

        [Oliver] briefly left the scene then returned from the direction of
        Seymour Street and approached Complainant.            Complainant
        turned around and stood face-to-face with [Oliver]. [Oliver]
        stabbed Complainant in the face.          After Complainant was
        stabbed, [Oliver] grabbed Angie and fled the scene on foot, in
        the direction of her house. As they walked away, Angie was
        talking animatedly to [Oliver].

        Police arrived and arrested [Oliver] on Stenton Avenue,
        approximately four to five blocks from the crime scene.
        Complainant was transported to Einstein Hospital, where he was
        treated for the stab wound.        Complainant received twenty
        stitches and was hospitalized for two days.

Trial Court Opinion, 3/8/16, at 3 (citations to record omitted).

        In October 2012, Oliver was convicted, following a non-jury trial, of

aggravated assault,1 possession of an instrument of crime (PIC),2 simple

assault,3 and recklessly endangering another person (REAP).4         On January

18, 2013, the trial court sentenced Oliver to eight to sixteen years of

incarceration for aggravated assault,5 and a consecutive sentence of one to

two years in prison for PIC, followed by four years of reporting probation.

____________________________________________


1
    18 Pa.C.S. § 2702(a).
2
    18 Pa.C.S. § 907(a).
3
    18 Pa.C.S. § 2701(a).
4
    18 Pa.C.S. § 2705.
5
 No further penalty was imposed on the simple assault or REAP; the charges
merged with aggravated assault for sentencing purposes.




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Oliver filed a direct appeal; on January 31, 2014, our Court affirmed Oliver’s

judgment of sentence.          Commonwealth v. Oliver, 413 EDA 2013 (Pa.

Super. filed Jan. 31, 2014).

       On March 31, 2014, Oliver filed a timely pro se PCRA petition. On July

1, 2014, the court appointed Attorney Stephen Thomas O’Hanlon to

represent Oliver.     On July 18, 2014, counsel filed a Turner/Finley6 letter

asserting that the issues raised in Oliver’s pro se petition were without merit

and that he was seeking to withdraw from representation.       On August 12,

2015, the court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

Oliver’s petition without a hearing and advising him that he had 20 days to

respond to the notice. The notice also stated that:

       [t]he Court, after review of the record, finds that the PCRA
       petition lacks merit for the following reason:

          Your attorney has determined that the issues raised in
          your pro se Post Conviction Relief Act petition are without
          merit. Counsel’s letter pursuant to Commonwealth v.
          Finley, 550 A.2d 213 (Pa. Super. 1988), is attached.

Pa.R.Crim. 907 Notice, 8/12/15.

       On August 13, 2015, Oliver filed an amended PCRA petition.           On

October 26, 2015, the trial court dismissed the petition. On that same date,

the court issued a “short certificate” indicating that Attorney O’Hanlon was

permitted to withdraw as PCRA counsel.
____________________________________________


6
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).



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      On November 4, 2015 and December 7, 2015, respectively, Oliver filed

a timely notice of appeal and court-ordered Pa.R.A.P.1925(b) concise

statement of matters complained of on appeal. On appeal, Oliver raises the

following issues for our consideration:

      (1)   Appell[ate] counsel was ineffective for failing to raise trial
            counsel’s ineffectiveness for trial counsel’s failure to
            challenge the Commonwealth violating [Oliver’s] 6th and
            14th Amendment[ Rights] of the U.S. Constitution as well
            as the Appellant’s due process clause rights.

      (2)   [Oliver’s] trial counsel was ineffective and showed his lack
            of interest for not challenging the critical evidence to
            preserve any of the statemen[t]s that were made under
            oath, that was critical in proving [Oliver’s] innocence.

      (3)   Trial counsel was ineffective for not having the medical
            records of the complaining witness’s intoxification [sic]
            present for review.

      The standard of review of an order dismissing a PCRA petition is

whether that determination is supported by the evidence of record and is

free of legal error.   The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record. Commonwealth

v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

      Oliver claims that his due process rights were violated because he was

never afforded the right to “confront his accuser.”        Oliver confuses his

accuser with the daughter of the victim, Gabby Mason. Mason merely gave

information leading to Oliver’s arrest; she did not testify against him at trial.

Commonwealth v. Williams, 84 A.3d 680 (Pa. 2014) (under both

Pa.Const. art. I., § 9 and U.S.Const. amend. VI, the accused has right to be



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confronted with witnesses against him).           Accordingly, we find no merit to

this claim.

       Oliver also alludes to the fact that there was a pre-trial suggestive

identification by the victim, Kobb, which took place at the preliminary

hearing; Oliver claims that counsel was ineffective7 for not questioning Kobb

about this identification, not filing a motion to suppress the identification,

and for failing to object to inconsistent statements Kobb made at trial. Even

if the identification claim had merit, because Oliver and the victim testified

that they have known each other for twenty years (since childhood) and

they were face-to-face during the attack, there was an independent basis to

identify Oliver as the assailant. Commonwealth v. Steward, 775 A.2d 819

(Pa.   Super     2001)     (in   determining     whether   independent   basis   for

identification exists, reviewing court considers: (1) opportunity of witness to

view criminal at time of crime; (2) witness’s degree of attention; (3)

accuracy of witness's prior description of criminal; (4) level of certainty

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

crime and confrontation).         Moreover, any claim regarding Kobb’s alleged
____________________________________________


7
  With respect to claims of ineffective assistance of counsel, we begin with
the presumption that counsel is effective. Commonwealth v. Spotz, 47
A.3d 63, 76 (Pa. 2012). To prevail on an ineffectiveness claim, a petitioner
must plead and prove, by a preponderance of the evidence, three elements:
(1) the underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his or her action or inaction; and (3) the petitioner
suffered prejudice because of counsel’s action or inaction. Id. (citation
omitted).



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inconsistent statements made at trial regarding whether he saw anyone with

weapons during the incident is also meritless. Kobb testified that he did not

see anyone with weapons prior to Oliver returning and cutting him on his

face. See N.T. Non-Jury Trial, 9/28/12, at 17-19. Accordingly, Oliver is not

entitled to relief because he failed to suffer prejudice as a result of counsel’s

inaction and because counsel cannot be deemed ineffective for failing to

raise a meritless issue. Spotz, supra.

      In his final claim on collateral appeal, Oliver asserts that counsel was

ineffective for not having Kobb’s medical records introduced at trial in order

to “show that the victim was too intoxicated on July 10, 2011, to make a

positive identification [of Oliver] or anyone present on [that] night.”

Appellant’s Brief, at 17.

      At trial, the parties stipulated to Kobb’s hospital report, which

indicated that Kobb was intoxicated when he was admitted and would be

discharged when he was sober. See N.T. Non-Jury Trial, 9/28/12, at 50-51.

Therefore, the fact that the victim was intoxicated at the time of the attack

was placed before the trial judge at Oliver’s waiver trial. Accordingly, this

claim has no merit.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2017




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