J-S44008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

CHIKUYO BAYETE

                            Appellant                 No. 1150 WDA 2014


                    Appeal from the PCRA Order July 2, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000473-2012


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED SEPTEMBER 16, 2015

       Appellant Chikuyo Bayete appeals, pro se, from the order entered in

the Erie County Court of Common Pleas, dismissing his petition for relief

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

       The relevant facts and procedural history of this appeal are as follows.

Korrine Nicole Carson (“Korrine”), Jordan Tyler Tracy (“Jordan”), and Jarod

Tracy (“Jarod”) testified that on November 21, 2011, they were socializing in

Jordan’s apartment around 2:00 a.m.            N.T., 9/12/12 at 17, 19.   After

smoking some marijuana, the three decided to leave the apartment to get

something to eat. Id. at 20. Korrine opened the door and encountered two

____________________________________________



1
    42 Pa.C.S. §§ 9541-9546.
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armed, masked men, wearing dark clothing, one of whom pushed her to the

floor and tased her. Id. at 20-22. One of the men pistol-whipped and tased

Jordan. Id. at 43, 44. According to Jordan, one of the men requested that

the music be turned up, and it was turned up.              Id. at 45.   According to

Jarod, one of the men pointed a gun at his head and asked him to turn the

T.V. off, and he turned off the T.V.           Id. at 76. Jarod then ran out of the

apartment and went to a neighbor’s house.              Id. at 78.   One of the men

pointed a gun at Jordan and told him he wanted his safe.2               Id. at 46-47.

The armed men took the safe and left the apartment. Id. at 48.

        Jordan heard a gunshot and looked outside. Id. at 51. He saw one of

the two armed men, later identified as Appellant, dragging the other armed

man, who had been shot and was later identified as Appellant’s brother,

Shanti Bayete.      Id. at 51, 86.      Appellant then lifted his mask and Jordan

recognized him as the older brother of his friend, Jeremiah. Id. at 51, 56.

Appellant then ran down the street. Id. at 54.

        Patrol Officer James Cousins responded to the scene for a disturbance

of one shot heard.        Id. at 84.      Officer Cousins encountered Jordan and

Korrine by the body, claiming that they had been robbed by the victim and

that they could identify the other robber. Id. at 84-87. Officer Nick Stadler

and Officer White also responded to the scene and encountered Appellant

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2
    $3000.00 along with marijuana were later found in the safe.




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running East from the scene, wearing all black, with blood on him, toward

their patrol car. Id. at 99, 101, 102. The officers apprehended Appellant

and brought him to the crime scene, where Jordan, Jarod and Korrine

identified Appellant as one of the robbers. Id. at 90.

        According to Appellant, his brother had gone to Jordan’s apartment to

purchase marijuana. N.T., 9/13/12, at 5. When his brother did not return,

Appellant left his apartment to find him.        Id. at 7.   He found his brother

lying in the street, bleeding, and tried to move him.         Id. at 9.   Appellant

then ran to find the police when he was apprehended by them. Id. at 11.

        On September 13, 2012, a jury found Appellant guilty of robbery,3

criminal conspiracy/robbery,4 theft by unlawful taking,5 simple assault,6

possessing an instrument of crime (“PIC”),7 and burglary,8 relating to the

home invasion.       On November 26, 2012, the court imposed consecutive

sentences of 84-168 months’ incarceration for robbery, 72-144 months’

incarceration for criminal conspiracy/robbery, 12-24 months’ incarceration
____________________________________________


3
    18 Pa.C.S. § 3701(a)(1)(ii).
4
    18 Pa.C.S. § 903/3710(a)(1)(ii).
5
    18 Pa.C.S. § 3921(a).
6
    18 Pa.C.S. § 2701(a)(1).
7
    18 Pa.C.S. § 907(a).
8
    18 Pa.C.S. § 3502(a).




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for simple assault, and 72-144 months’ incarceration for burglary. The court

also imposed a concurrent sentence of 18-36 months’ incarceration for PIC.

        On December 6, 2012, Appellant filed post-sentence motions, which

the court denied the next day.             On March 1, 2013, Appellant filed an

untimely pro se notice of appeal.                The court appointed counsel and

ultimately reinstated Appellant’s direct appeal rights           nunc pro tunc.

Appellant filed a notice of appeal on July 17, 2013, and on February 7, 2014,

this Court affirmed Appellant’s judgment of sentence.

        On April 21, 2014, Appellant filed a timely pro se PCRA petition. The

court appointed counsel on April 25, 2014, who filed a Turner9/Finley10 no

merit letter and a petition to withdraw as counsel on May 27, 2014. On June

5, 2014, the court issued a Pa.R.Crim.P. 907 notice and granted counsel’s

petition to withdraw.      On July 2, 2014, the court denied Appellant’s PCRA

petition.   Appellant filed a timely notice of appeal on July 14, 2014.     The

court did not order, and Appellant did not file, a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On July 21, 2014,

the court issued a statement pursuant to Pa.R.A.P. 1925(a), incorporating its

opinion and notice of intent to dismiss PCRA without a hearing pursuant to

Pa.R.Crim.P. 907, dated June 5, 2014.


____________________________________________


9
    Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
10
     Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988).



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      Appellant raises the following issues for our review:

         WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW
         AND/OR ABUSED ITS DISCRETION IN DENYING AND/OR
         OTHERWISE     DISMISSING WITHOUT    A   HEARING
         APPELLANT’S CLAIMS THAT:

            TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
            MOVE FOR SUPPRESSION AND/OR EXCLUSION OF A
            PRE-TRIAL IDENTIFICATION OF APPELLANT WHERE
            SAID   IDENTIFICATION   WAS   OBTAINED   BY  A
            PROCEDURE SO UNNECESSARILY SUGGESTIVE AND
            CONDUCIVE      TO     IRREPARABLE     MISTAKEN
            IDENTIFICATION AS TO DENY APPELLANT DUE
            PROCESS OF LAW?

            TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
            COMPLY WITH THE TECHNICAL NOTICE REQUIREMENTS
            OF PA.R.CRIM.P. 567, THEREBY PRECLUDING THE
            TESTIMONY OF DEFENSE WITNESS, LONI SHEROD,
            WHO WAS AVAILABLE AND WILLING TO TESTIFY AS AN
            ALIBI WITNESS ON APPELLANT’S BEHALF?

            TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
            OBJECT TO THE ADMISSION       OF IRRELEVANT
            INFLAMMATORY     AND    UNDULY   PREJUDICIAL
            PHOTOGRAPHS, AS CONTAINED ON A COMPACT DISC
            MARKED AS COMMONWEALTH EXHIBIT-“1”, WHICH
            DEPICTED THE BODY OF APPELLANT’S DECEASED
            BROTHER, SHANTI BAYETE?

            TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
            OBJECT TO THE ADMISSION OF EVIDENCE THAT
            APPELLANT HAD PREVIOUSLY BEEN CONVICTED OF A
            FELONY DRUG OFFENSE?

Appellant’s Brief at 4.

      In all of his issues, Appellant argues his trial counsel was ineffective

and he is entitled to a new trial or an evidentiary hearing. Appellant’s issues

merit no relief.

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        Our standard of review is well-settled.          “In reviewing the denial of

PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).

“The scope of review is limited to the findings of the PCRA court and the

evidence of record, viewed in the light most favorable to the prevailing party

at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014)

(citation omitted).       “It is well-settled that a PCRA court’s credibility

determinations are binding upon an appellate court so long as they are

supported by the record.”          Commonwealth v. Robinson, 82 A.3d 998,

1013 (Pa.2013) (citation omitted).             However, this Court reviews the PCRA

court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa.Super.2014) (citation omitted).

        Initially, we note that claims of ineffective assistance of counsel are

cognizable under the PCRA and Appellant’s PCRA petition is timely. See 42

Pa.C.S. §§ 9543(a)(2)(ii), 9545(b).

        This Court follows the Pierce11 test adopted by our Supreme Court to

review claims of ineffective assistance of counsel:

          When a petitioner alleges trial counsel’s ineffectiveness in
          a PCRA petition, he must prove by a preponderance of the
          evidence that his conviction or sentence resulted from
          ineffective  assistance  of     counsel   which,    in   the
____________________________________________


11
     Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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         circumstances of the particular case, so undermined the
         truth-determining process that no reliable adjudication of
         guilt or innocence could have taken place. We have
         interpreted this provision in the PCRA to mean that the
         petitioner must show: (1) that his claim of counsel’s
         ineffectiveness has merit; (2) that counsel had no
         reasonable strategic basis for his action or inaction; and
         (3) that the error of counsel prejudiced the petitioner-i.e.,
         that there is a reasonable probability that, but for the error
         of counsel, the outcome of the proceeding would have
         been different. We presume that counsel is effective, and
         it is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal

denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct.

2029, 164 L.Ed.2d 782 (2006) (internal citations and quotations omitted).

The petitioner bears the burden of proving all three prongs of this test.

Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001).                 “If an

appellant fails to prove by a preponderance of the evidence any of the

Pierce prongs, the Court need not address the remaining prongs of the

test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009),

appeal denied, 990 A.2d 727 (Pa.2010) (citation omitted).

      First, Appellant argues that because police transported him to the

crime scene, in a patrol car, immediately after the crime, in handcuffs and

covered with blood, the out-of-court identification of him as the robber by

Jordan, Jarod, and Korrine was unduly suggestive.          He claims that his

counsel’s failure to move for suppression of this pre-trial identification was

ineffective assistance of counsel that entitles him to a new trial.         We

disagree.


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        Where the challenge is to a failure to move for suppression
        of evidence, the defendant must establish that there was
        no reasonable basis for not pursuing the suppression claim
        and that if the evidence had been suppressed, there is a
        reasonable probability the verdict would have been more
        favorable.

Commonwealth v. Melson, 556 A.2d 836, 839 (Pa.Super.1989), appeal

denied, 575 A.2d 111 (Pa.1990) (quoting Kitrell v. Dakota, 540 A.2d 301,

306, (Pa.Super.1988), appeal denied, 565 A.2d 1167 (Pa.1988)).

        In reviewing the propriety of identification evidence, the
        central inquiry is whether, under the totality of the
        circumstances, the identification was reliable. The purpose
        of a “one on one” identification is to enhance reliability by
        reducing the time elapsed after the commission of the
        crime. Suggestiveness in the identification process is but
        one factor to be considered in determining the admissibility
        of such evidence and will not warrant exclusion absent
        other factors. As this Court has explained, the following
        factors are to be considered in determining the propriety of
        admitting identification evidence: the opportunity of the
        witness to view the perpetrator at the time of the crime,
        the witness’ degree of attention, the accuracy of his prior
        description of the perpetrator, the level of certainty
        demonstrated at the confrontation, and the time between
        the crime and confrontation. The corrupting effect of the
        suggestive identification, if any, must be weighed against
        these factors. Absent some special element of unfairness,
        a prompt “one on one” identification is not so suggestive
        as to give rise to an irreparable likelihood of
        misidentification.

Commonwealth v. Kearney, 92 A.3d 51, 65 (Pa.Super.2014), appeal

denied, 101 A.3d 102 (Pa.2014).

     Instantly, Jordan, Jarod, and Korrine positively identified Appellant as

the person who had robbed Jordan’s apartment when police brought him to

them in a marked patrol car, immediately after the shooting.       Jarod and


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Korrine both testified that they had never seen Appellant’s face, but they

both noticed he was wearing dark clothing.       Jordan testified that he saw

Appellant’s face when he was bending over his brother’s dead body in the

street around 2:00 a.m., under a streetlight, when he lifted his mask. He

specifically recognized him as the older brother of Jordan’s friend, Jeremiah.

        A suppression court may have found that, under the totality of the

circumstances, the identification by Jarod and Korrine was not reliable and

granted a motion to suppress their out-of-court identification of Appellant.

However, due to Jordan’s certainty of Appellant’s identity as someone he

specifically recognized, it is unlikely the court would have found Jordan’s

identification of Appellant so suggestive as to give rise to an irreparable

likelihood of misidentification.

        Even if the court had granted a motion to suppress and found that all

out-of-court identifications were unduly suggestive and tainted because the

police presented Appellant to the witnesses while he was in handcuffs, in a

police vehicle, immediately after the crime scene, Appellant’s claim fails.

        Although Appellant alleges that the out-of-court identification is the

only evidence “linking Appellant to [Jordan’s] apartment [and] the crimes

committed therein”,12 Jordan subsequently identified Appellant in court.



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12
     Appellant’s Brief at 35.



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      “When an out-of-court identification is alleged to be tainted, an in-

court identification may still stand if, considering the totality of the

circumstances, the identification had an origin sufficiently distinguishable to

be purged of the primary taint.”    Commonwealth v. Kendricks, 30 A.3d

499, 506 (Pa.Super.2011), appeal denied, 46 A.3d 716 (Pa.2012) (internal

quotations and citation omitted).         The Commonwealth must prove this

independent basis for identification through clear and convincing evidence.

See Commonwealth v. Davis, 17 A.3d 390, 394 (Pa.Super.2011), appeal

denied, 29 A.3d 371 (Pa. 2011). “An independent basis is established when

‘the in-court identification resulted from the criminal act and not the

suggestive [identification procedure].’” Id.

      The factors a court should consider in determining whether there
      was an independent basis for the identification include: (1) the
      opportunity of the witness to view the criminal at the time of the
      crime; (2) the witness’s degree of attention; (3) the accuracy of
      the witness’s prior description of the criminal; (4) the level of
      certainty demonstrated by the witness during the confrontation;
      and (5) the length of time between the crime and the
      confrontation.

Kendricks, 30 A.3d at 506.

      With regard to the first factor, Jordan had an opportunity to view

Appellant while he robbed the apartment, wearing dark clothing and a mask.

Jordan then saw Appellant’s face while Appellant was bent over his dead

brother’s body and lifted his mask. Jordan immediately recognized Appellant

as someone he had seen before in the neighborhood, specifically, the

brother of Jordan’s friend, Jerimiah.

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      Regarding the second factor, due to the intensity of the robbery, it is

likely Jordan was paying close attention, even though he had been smoking

marijuana and had been knocked down and tased.

      Regarding the accuracy of the description, Jordan testified that the two

people who robbed his apartment were wearing: “Black jacket[s] and

pantyhose over their face[s]. Just all black.” N.T., 9/12/12, at 43. After

the shot was fired, Jordan saw Appellant dragging his brother in the street

and testified: “[Appellant] lifted up his mask and I was like, oh, I know who

you are.”        Id. at 51.   Jordan testified that he recognized Appellant as his

friend’s   brother      because      he    had   seen    him    around     before   in   the

neighborhood.

      Regarding the fourth and fifth factors, Jordan expressed certainty that

Appellant was the person who robbed him, and he identified him

immediately after the crime.

      An analysis of these factors make it unlikely that a court would have

granted a motion to suppress Jordan’s out-of-court identification of

Appellant. However, even if the court had granted a motion to suppress the

out-of-court identification, Jordan’s in-court identification was admissible

because     it    resulted    from   the    criminal    act    and   not   the   suggestive

identification procedure.        See Davis, supra.            This in-court identification,

along with the corroborative stories of the other witnesses and Appellant’s

admission that he was at the crime scene, dragging his brother in the street,


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implicated Appellant as one of the two robbers.        Even if the court had

granted a motion to suppress the out-of-court identification, there is not a

reasonable probability that the result of the trial would have been more

favorable to Appellant. See Carelli, supra.

      Because Appellant was not prejudiced by the alleged error by counsel,

an   evidentiary   hearing   is   unnecessary.   See    Clemmons,     supra.

Additionally, even if Appellant’s claim had arguable merit, and counsel had

no strategic basis for failing to file a motion to suppress the out-of-court

identification, because he has failed to prove by a preponderance of the

evidence the prejudice prong required by Pierce, his first claim fails. See

Fitzgerald, supra.

      In his second issue, Appellant claims his trial counsel failed to comply

with the technical notice requirements of Pa.R.Crim.P. 567, which precluded

Appellant’s alibi witness Loni Sherod from testifying. Appellant concludes his

counsel’s ineffectiveness entitles him to an evidentiary hearing or a new

trial. We disagree.

         Where a claim is made of counsel’s ineffectiveness for
         failing to call witnesses, it is the appellant’s burden to
         show that the witness existed and was available; counsel
         was aware of, or had a duty to know of the witness; the
         witness was willing and able to appear; and the proposed
         testimony was necessary in order to avoid prejudice to the
         appellant.

Com. v. Chmiel, 30 A.3d 1111, 1143 (Pa.2011) (quoting Commonwealth

v. Wayne, 720 A.2d 456, 470 (Pa.1998)).



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        To properly grant [relief on an ineffective assistance of
        counsel claim], the PCRA court would have to find that the
        … witness had relevant evidence that could have aided
        [appellant’s] defense, and that there is a reasonable
        probability that the introduction of such evidence would
        have altered the outcome of the trial.

Commonwealth v. Johnson, 966 A.2d 523, 540 (Pa.2009).

     In this case, it is not clear that Appellant’s witness was available to

testify on Appellant’s behalf even if counsel had complied with the technical

notice requirements of Pa.R.Crim.P. 567. The following transpired at trial:

        [DEFENSE COUNSEL]: There is another witness, Lonny
        Sherod, he’s not here, again – he’s wavering again. He’s
        supposed to be here tomorrow...

        [PROSECUTOR]: …I’ll object to that… If you look at the
        notice that he filed, it wasn’t a notice. He didn’t give me
        an address, he didn’t give me a proffer as to where he
        was. And in the notice, he actually specifically said he
        would withdraw the notice if he didn’t have that
        information. So I took him at his word, didn’t file a
        response and until yesterday actually I didn’t think Sherrod
        was going to be part of the case.

        [DEFENSE COUNSEL]: … I had to file it late… I did contact
        Mr. Sherrod on a few occasions. He seemed disinterested
        in me and did not get back to me. The only reason why
        I’m asking the court today is because I have to on behalf
        of my client because he came forward last night and I
        know it’s late notice.

        THE COURT: No. I will not allow alibi.

N.T., 9/12/12, at 126-127.

     Although the court did not conduct an evidentiary hearing, it is unlikely

that Appellant would meet his burden of proving that the witness was

available or that counsel had a reason to know that Appellant wanted to

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present him as an alibi witness. Even if the court had permitted Mr. Sherod

to testify, the transcript reveals that the witness was uncooperative and did

not appear in court. Further, because Appellant only came forward the night

before trial about his request to introduce Mr. Sherod as an alibi witness,

counsel may not have been aware of the witness at all.

     Even if Appellant could prove that his claim had arguable merit and

that counsel had no reasonable strategy for failing to call Mr. Sherod as an

alibi witness, Appellant again fails to prove by a preponderance of the

evidence the prejudice prong established in Pierce.

     Appellant admits to being at the crime scene, minutes after the crime,

holding his bleeding brother in his arms in the street. Jordan testified that

he saw Appellant rob his apartment and then lift his mask while standing

over the body.    The police testified that they saw Appellant immediately

after the crime, covered in blood and wearing dark clothing.       Appellant

testified that he was coincidentally there at that time to check on his

brother, who had departed to purchase marijuana from Jordan. If he had

testified, Loni Sherod may or may not have corroborated Appellant’s story.

However, he would not have presented any new information that would have

placed Appellant anywhere other than at the crime scene immediately after

the crime.   Thus, Appellant has failed to prove by a preponderance of the

evidence that the outcome of the trial would have been different if Mr.

Sherod had testified.


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      In his third issue, Appellant argues his counsel was ineffective for

failing to object to “inflammatory and unduly prejudicial photographs” of

Appellant’s deceased brother, Shanti Bayete.           Appellant’s claim lacks

arguable merit because Appellant was not on trial for the murder of his

brother, and he fails to articulate how the photographs were prejudicial to

his trial for burglary.

      In his fourth issue, Appellant claims his trial counsel was ineffective for

failing to object the admission of evidence that Appellant had been

previously convicted of a felony drug offense. Again, Appellant’s claim fails.

         We recognize that, pursuant to Pa.R.E. 403, relevant
         evidence may be excluded “if its probative value is
         outweighed by a danger of ... unfair prejudice.” In a
         Comment to Rule 403, unfair prejudice is defined as “a
         tendency to suggest decision on an improper basis or to
         divert the jury’s attention away from its duty of weighing
         the evidence impartially.” We are unable to conclude that,
         in a § 6105 persons not to possess firearms case, a
         defendant suffers unfair prejudice merely by the admission
         into evidence of his or her certified conviction of a specific,
         identified, predicate offense, which has been offered by the
         Commonwealth to prove the prior conviction element of §
         6105.

         Any possibility of unfair prejudice is greatly mitigated by
         the use of proper cautionary instructions to the jury,
         directing them to consider the defendant’s prior offense
         only as evidence to establish the prior conviction element
         of the § 6105 charge, not as evidence of the defendant’s
         bad character or propensity to commit crime.

Commonwealth v. Jemison, 98 A.3d 1254, 1262 (Pa.2014).




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       “The law presumes that the jury will follow the instructions of the

court.”     Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa.2011)

(quoting Commonwealth v. Spotz, 896 A.2d 1191, 1224 (Pa.2006).

       Instantly, Appellant was charged with possessing a firearm, persons

not to possess firearms. Counsel stipulated to Appellant’s prior conviction as

an element of this crime, and the court gave a curative instruction:

          Let me also say as to the stipulation to the fact that
          [Appellant] has a prior conviction which precludes him
          from owning a firearm, that prior conviction is not in any
          way, shape, or form any evidence of [Appellant’s] guilt in
          this case. The sole purpose for the admission of that prior
          conviction is to show that [Appellant] is not allowed, under
          Pennsylvania law, to own a firearm because of it, and that
          is part of the charge that is – has been lodged against him
          at Count Number 11 and I will instruct you specifically on
          the elements of that charge at a later time.

N.T., 9/12/12, at 124-125.

       Because the law presumes the jury followed the court’s instruction,

Appellant has suffered no prejudice.13

       Order affirmed.




____________________________________________


13
   Additionally, Appellant testified about illegal drug transactions and his
knowledge and understanding of them. See N.T., 9/13/12, at 5, 17. Even if
evidence of Appellant’s prior conviction had not been introduced, the jury
would have been aware of Appellant’s prior bad acts.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2015




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