J-S48010-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

CHRISTOPHER L. FREEMAN

                         Appellant                 No. 1050 WDA 2015


                Appeal from the PCRA Order June 11, 2015
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0012372-2010


BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J:                       FILED SEPTEMBER 19, 2016

      Christopher Freeman appeals from the denial of his petition filed

pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. We affirm.

      Based upon the following evidence, Appellant was convicted of

robbery, conspiracy to commit robbery, and person not to possess a firearm

following a non-jury trial:

      Tyler Walk testified at trial that he and Megan Seastedt were
      walking on July 14, 2010 near the West End Overlook park in the
      city of Pittsburgh at approximately 9:00 p.m. As they were
      walking together, they noticed a male walk past them and sit on
      a park bench near a walking tunnel in the park. This person was
      wearing a white t-shirt and a red or dark cap. He had a hairstyle
      that somewhat resembled “dread locks”. They walked toward
      the tunnel. When they were about a foot away from the male
      sitting on the bench, the male got up from the bench and pulled
      a firearm and stuck it against Mr. Walk’s abdomen. Mr. Walk did
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     not get a good look at the gun but he recalled seeing a silver
     streak. The male told Mr. Walk to “give me what you got.”

     Ms. Seastedt said “Oh my God” and stepped behind Mr. Walk.
     Mr. Walk turned over a business card holder and his wallet.
     Another male came from behind Mr. Walk and patted his
     pockets. Mr. Walk recalled that one of the males was carrying a
     backpack. This other male demanded that Mr. Walk turn over
     money. Mr. Walk turned over a $20 bill that he found in his
     pocket. The men appeared disappointed that Mr. Walk didn’t
     have more money. Mr. Walk testified that he got a good look at
     the male holding the gun. They made direct eye contact. He
     didn’t get a good look at the other male. The two males told Mr.
     Walk and Ms. Seastedt not to call the police and they
     disappeared into the park.

     Mr. Walk and Ms. Seastedt returned to Mr. Walk’s vehicle. Once
     there, they phoned the police. Police responded to the scene
     and began searching the area. Police detained two men,
     [Appellant] and Marlin Fields. Mr. Walk and Ms. Seastedt were
     asked to identify their assailants. At trial, Mr. Walk identified
     [Appellant] as the male sitting on the bench that held the gun.
     Mr. Walk also identified Marlin Fields as the other male. By the
     time they had been apprehended by the police however,
     [Appellant] was wearing a long sleeved red t-shirt instead of the
     shirt he was wearing during the robbery.

     On cross-examination, Mr. Walk was asked about the physical
     description of the males that he provided to the police. Mr. Walk
     testified that he believed he originally told the police that the
     male holding the gun was about his height, which would be
     about 5 feet, 9 inches. He did not recall if he originally supplied
     an estimated weight for that male. He believed he told police
     that the male was in his “early twenties.”

     Ms. Seastedt’s testimony was virtually identical to Mr. Walk’s
     testimony. She recalled seeing [Appellant] walk past them, sit
     on the bench and pull the gun on Mr. Walk. She confirmed that
     Mr. Walk turned over the wallet, business card holder and the
     $20 to [Appellant].

     ...



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       Officers conducted a search of the area where the suspects were
       located. They did not find Mr. Walk’s wallet, business card case
       or his $20.      Officers did, however, find a black revolver
       approximately ten to fifteen yards from where the suspects were
       detained. The gun was loaded and the hammer was pulled back
       on the gun. Based on this evidence, [Appellant] was convicted
       as set forth above.

Trial Court Opinion, 12/21/2011, at 1-4.

       We     affirmed     judgment       of     sentence   on     May   15,    2012.

Commonwealth v. Freeman, 50 A.3d 243 (Pa.Super. 2012) (unpublished

memorandum). Appellant did not seek further review, and, on May 9, 2013,

filed a pro se petition under the PCRA.                 Appointed counsel filed a

Turner/Finley1 no-merit letter and motion to withdraw. The PCRA court

granted the motion to withdraw and issued an accompanying notice of intent

to dismiss.

       In response, Petitioner filed a timely pro se motion, asserting that

appointed counsel failed to address certain issues in the no-merit letter. The

PCRA court did not respond to the motion and dismissed the petition.

Petitioner appealed, and, on September 11, 2014, we reversed and

remanded      for   appointment      of   new    PCRA   counsel,   finding   that   the

Turner/Finley letter and the PCRA court’s review thereof were defective.

Commonwealth v. Freeman, 107 A.3d 224 (Pa.Super. 2014).

____________________________________________


1
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),                                 and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



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          Following remand, current counsel filed an amended PCRA petition

raising one issue.      The PCRA court conducted a hearing and again denied

relief.     Appellant perfected a timely appeal, all parties complied with the

mandates of Pa.R.A.P. 1925, and the matter is now ready for review.

Appellant’s sole issue is that

          The PCRA Court erred in denying relief because trial counsel was
          ineffective for failing to file a motion to suppress the unduly
          suggestive “show up” identification procedure used immediately
          following the incident.

Appellant’s brief at 6.

          These facts are relevant to the issue raised on appeal. Officer Timothy

Causey testified that at 10:46 p.m., he and his partner were dispatched for

the reported robbery. Officer Causey encountered Mr. Walk, Ms. Seastedt,

and Officer Mitchell, who was already on scene. N.T. Trial, 3/21/11, at 102.

He recalled that the victims’ description of the assailants was of two black

males in their late teens to early twenties, approximately 5’9” tall. One man

was reported to be wearing a white t-shirt, baggy pants, and a red baseball

cap with dreadlocks in his hair.      The other was reported to be wearing a

white t-shirt, black baseball cap, and carrying a backpack.         Id. at 103.

Officer Causey located and detained two men who appeared to match the

reported ages, were walking together, and wearing ball caps. Appellant was

wearing a red ball cap, and a red shirt with a white shirt underneath. Id. at

105. His companion was wearing a black baseball cap, white t-shirt, jeans,



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and had a backpack.    Id.   Officer Mitchell then transported the victims to

Officer Causey’s location, where the victims, seated together in the patrol

car, identified the men as the robbers. Id. at 106, 61-62.

     In reviewing a decision denying PCRA relief, we consider the record “in

the light most favorable to the prevailing party at the PCRA level.”

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).

We limit our review to the evidence of record and the factual findings of the

PCRA court.    Provided the PCRA court’s ruling is free of legal error and

supported by record evidence, we cannot disturb its ruling. Where the issue

is one of law, our standard of review is de novo and our scope of review

plenary. Id.

     Appellant’s sole claim challenges trial counsel’s effectiveness. In order

to obtain PCRA relief on these grounds, Appellant must establish each of the

following: (1) that the underlying issue has arguable merit; (2) counsel's

actions lacked an objective reasonable basis; and (3) actual prejudice

resulted from counsel's act or failure to act. Commonwealth v. Pander,

100 A.3d 626, 631 (Pa.Super. 2014) (citing Commonwealth v. Chmiel, 30

A.3d 1111, 1127 (Pa. 2011)). Where the alleged ineffectiveness pertains to

a failure to file a suppression motion, Appellant must show proof of the merit

of the underlying suppression claim. Commonwealth v. Carelli, 546 A.2d

1185, 1189 (Pa.Super. 1988).      Prejudice is established if the litigant can

establish that, if the evidence had been suppressed, there is a reasonable

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probability the verdict would have been more favorable. Commonwealth

v. Arch, 654 A.2d 1141, 1143 (Pa.Super. 1995).

      We begin our analysis by discussing the PCRA court’s disposition of

this claim. The PCRA court found that Appellant failed to establish any facts

that would warrant relief.

      At the PCRA hearing, Petitioner did not testify. The lone witness
      was Petitioner’s trial counsel.
      ...

      Petitioner presented no additional evidence. He did not present
      any evidence concerning the circumstances of the identification.
      There was no evidence presented concerning how much time the
      victims had to view the actors or what type of physical
      descriptions the victims provided of the actors. No evidence was
      presented suggesting that the victims’ description of the actors’
      clothing was inconsistent or that Petitioner was one of only two
      suspects presented by the police to the victims in this case.

PCRA Court Opinion, 11/5/15, at 2-3.

      Appellant states the PCRA erred by not considering the suppression

claim in light of the testimony adduced at trial.              We agree.       In

Commonwealth v. Hill, 104 A.3d 1220 (Pa. 2014), our Supreme Court

analyzed a claim of failure to seek suppression of evidence. As in the case

sub judice, no pre-trial motion was filed. Hill observed:

      Because the issue involves a failure to seek suppression, there is
      no pre-trial suppression hearing record. The courts below
      focused on competing factual accounts, including appellee's
      testimony, offered at the PCRA hearing, without looking to the
      trial record; the parties' appellate presentation to this Court has
      a similar focus. However, because appellee's various statements
      to police were introduced at trial, the trial transcript also includes



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       substantial evidence relevant to the circumstances surrounding
       those statements.

Id. at 1222. “[T]he fact remains that the record contains the trial transcript,

and that transcript contains sworn testimony directly relevant to the claim

presented on collateral attack[.]” Id. at 1240.

       Herein, the sworn testimony offered by the Commonwealth in its case-

in-chief is relevant to the suppression claim, and should have been

considered by the PCRA court. Moreover, had the asserted pre-trial motion

been filed, the burden would have fallen on the Commonwealth to establish

that    the   identification    procedure   was     not   unduly   suggestive.

Commonwealth v. Johnson, 668 A.2d 97, 103 (Pa. 1995). We find that

the PCRA court committed legal error in dismissing the petition on this basis,

and we will therefore consider the claim de novo.

       We first address the substantive aspects of the ineffectiveness

allegation.   Appellant asserts that the victims’ ability to identify the

perpetrators at trial was tainted due to the suggestive show up procedure.

       Clearly, transporting the victims to where Appellant and his companion

were detained by police was suggestive to some extent.        “Suggestiveness

arises when the police employ an identification procedure that emphasizes or

singles-out a suspect.”        Commonwealth v. Davis, 17 A.3d 390, 394

(Pa.Super. 2011). However, our inquiry is not whether the procedure was

suggestive but whether it was unduly so, to a degree that the subsequent



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in-court identifications were rendered unreliable. We have consistently held

that, “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. Wade, 33 A.3d 108, 114

(Pa.Super. 2011) (quoting Commonwealth v. Moye, 836 A.2d 973, 976

(Pa.Super. 2003)).

      Prior cases have described the type of show up employed herein as

proper police procedure when a suspect is located shortly after the incident.

      The facts outlined above indicate that the victim's prompt
      complaint enabled the police to use the description provided so
      as to track down and locate appellant almost immediately after
      the perpetration of the robbery. Less than one half hour after
      the crime, the police were able to present appellant for a viewing
      by the victim. This is proper procedure. Absent some special
      element of unfairness, prompt, one-on-one identification is not
      per se violative of the accused's constitutional rights, even where
      the accused has been returned to the scene of the crime in a
      police cruiser.

McElrath v. Commonwealth, 592 A.2d 740, 743 (Pa.Super. 1991).

Moreover, we have explained that prompt show ups are “permissible, if,

indeed, not favored”:

      Appellant first contends that the one-on-one confrontation with
      Miss Kirby at the hospital was illegal, and that Miss Kirby's
      identifying him there as well as at trial should have been
      suppressed. We are not persuaded by appellant's argument,
      however.      As appellant maintains, it is certainly true that
      identification evidence is inadmissible if it is obtained as the
      result of a procedure so unnecessarily suggestive and conducive
      to irreparable mistaken identification as to deny due process of
      law. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d
      1199 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct.


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       1926, 18 L.Ed.2d 1149 (1967); Commonwealth v. Jenkins,
       232 Pa.Super. 523, 335 A.2d 463 (1975). On the other hand
       the courts also recognize that confrontations between victim and
       suspect shortly after the occurrence of a crime may be desirable
       from the standpoint of the suspect as well as from that of law
       enforcement authorities. . . . Hence, while one-on-one
       confrontations are generally condemned, those which occur soon
       after the commission of a crime are permissible if, indeed, not
       favored.

Commonwealth v. Bullock, 393 A.2d 921, 922–23 (Pa.Super. 1978)

(some citations omitted).

       In light of these principles, we have consistently declined to hold that

show     up    procedures        are   unduly    suggestive.   McElrath,   supra;

Commonwealth v. Armstrong, 74 A.3d 228 (Pa. Super. 2013) (victim

heard noise at window and saw appellant, who was then apprehended by

police based on description; victim taken to appellant’s location and

identified him); Moye, supra (appellant was only person present in police

van where he was handcuffed; other circumstances rendered identification

reliable). We find that the process utilized in the case at bar was not unduly

suggestive. Moreover, there is no allegation or record evidence to suggest

that the police officers influenced or coerced the witnesses in any way.2

____________________________________________


2
   In discussing the constitutional check of due process on unreliable witness
identifications, the United States Supreme Court has stated: “A primary aim
of excluding identification evidence obtained under unnecessarily suggestive
circumstances, the Court said, is to deter law enforcement use of improper
lineups, showups, and photo arrays in the first place. Alerted to the
prospect that identification evidence improperly obtained may be excluded,
(Footnote Continued Next Page)


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      Having determined that the use of the procedure does not warrant

suppression, we now must determine whether the identification was reliable

despite the suggestive show up.3                 “The paramount aim of our law,

nevertheless,     is     to    judge     the     reliability   of   the   identification.”

Commonwealth v. Baker, 614 A.2d 663, 668 (Pa. 1992).                           We have

consistently analyzed whether the identification is reliable under the

following principles.

      “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.” McElrath
      [supra]. 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.” McElrath, 592 A.2d
      at 743 (citation omitted). The corrupting effect of the suggestive
      identification, if any, must be weighed against these factors.

                       _______________________
(Footnote Continued)

the Court reasoned, police officers will guard against unnecessarily
suggestive procedures. This deterrence rationale is inapposite in cases, like
Perry's, in which the police engaged in no improper conduct.” Perry v. New
Hampshire, 132 S. Ct. 716, 726 (2012) (internal citation and quotation
marks omitted).
3
  We note that Appellant does not specifically allege that trial counsel should
have further challenged the in-court identifications as impermissibly tainted
by the show up identification. See Johnson, supra (motion to suppress in-
court identification cannot be entertained absent showing that the pre-trial
process was unduly suggestive).




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       Commonwealth v. Sample, 321 Pa.Super. 457, 468 A.2d 799
       (1983).

Wade, supra (quoting Moye, supra).

       Appellant argues that the victims observed their assailants for less

than one minute and that Mr. Walk4 was unable to describe any facial

features or distinguishing marks and gave “only a vague description of the

actor’s white shirt and ball cap.”        Appellant’s brief at 22.        He additionally

avers that Mr. Walk focused on the gun rather than the perpetrator’s face.

       The   Commonwealth         counters     by   highlighting   that    both   victims

identified Appellant and the co-defendant based on observations of the

actors’ faces and physical features. Moreover, Mr. Walk testified that he was

facing Appellant and focused on his features.

       We find that Appellant has failed to demonstrate arguable merit. The

show up procedure had minimal corrupting effect when weighed against all

other factors. Appellant’s claim that Mr. Walk focused on the gun is belied

by the record.      N.T. Trial, 3/21/11, at 59.       Moreover, the victims had an

opportunity to view their assailants, and did so. The robbery portion of the

encounter lasted approximately one minute, and Mr. Walk stated he

observed Appellant sitting on a park bench before the robbery occurred. As

to timing, the victims called police within fifteen minutes of the robbery, and
____________________________________________


4
  Ms. Seastedt testified that Mr. Walk had a better look at Appellant, while
she had a better view of the co-defendant. N.T. Trial, 3/21/11, at 66, 70.



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identified the actors approximately thirty minutes later. Thus, the total time

between the incident and the show up was approximately forty-five minutes.

Appellant was not entitled to suppression, and thus, counsel was not

ineffective in failing to seek it.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2016




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