J-S24006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellee

                       v.

DAVONN ROSS

                             Appellant                      No. 217 WDA 2016


                  Appeal from the PCRA Order January 7, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0011234-2006


BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                                        FILED MAY 5, 2017

        A jury convicted Appellant, Davonn Ross, of third-degree murder and

related charges arising from allegations that he had shot and killed Ramon

Yates on June 8, 2006. At trial, the Commonwealth impeached a juvenile

eyewitness     with    his    taped,     prior   inconsistent   statement   to   police

investigators. In his timely, first petition pursuant to the Post Conviction

Relief Act (“PCRA”), Ross asserted that his trial counsel, Lisa Middleman,

Esquire, was ineffective when she failed to challenge the competency of the

juvenile witness. The PCRA court dismissed Ross’s petition without a




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*
    Former Justice specially assigned to the Superior Court.
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hearing, after permitting his court-appointed counsel to withdraw from the

case.1

       On appeal,2 Ross argues that the PCRA court erred in dismissing his

petition, and that PCRA counsel was ineffective in filing a no-merit letter. We

conclude that Ross did not establish that he was prejudiced by Attorney

Middleman’s failure to challenge the juvenile witness’s competency, albeit

through reasoning that differs from the PCRA court’s, and therefore affirm.

       At Ross’s trial, the Commonwealth presented a significant amount of

circumstantial evidence linking Ross to the murder of Yates. It also called

two juvenile eyewitnesses to the crime to testify. However, both witnesses

were uncooperative on the stand, claiming to have no specific recollection of

the event. See N.T., Jury Trial, 1/29-2/2/08, at 195-202, 207-210. As a

result, the Commonwealth sought to introduce the witnesses’ recorded

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1
   The PCRA court granted withdrawal after it found that counsel had
complied with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Upon the filing of this appeal, the PCRA court appointed new counsel to
represent Ross on appeal. However, following a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988), Ross waived his right
to appointed appellate counsel. He is proceeding pro se.
2
  Ross’s appeal was docketed more than thirty days after the entry of the
order dismissing his PCRA petition. However, he was incarcerated at the
time, his notice of appeal is dated February 2, 2016, and the time stamp on
the envelope attached to his filing has a date of February 5, 2016. Thus, we
conclude that Ross’s appeal was timely filed pursuant to the prisoner
mailbox rule. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa.
1997).



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interviews with police investigators as prior inconsistent statements of a

witness pursuant to Pa.R.E. 803.1. The recorded statements of both

witnesses explicitly identified Ross as the individual who shot and killed

Yates. See N.T., Jury Trial, 1/29-2/2/08, at 319, Appendix A, at 2-3. Under

Rule 803.1, the jury was allowed to consider these recorded statements, not

just as evidence regarding the credibility of the witnesses, but also as

evidence that Ross killed Yates. See Commonwealth v. Buford, 101 A.3d

1182, 1201 (Pa. Super. 2014), appeal denied, 114 A.3d 415 (Pa. 2015).

      The first eyewitness, J.W., was ten years old at the time of the

shooting and twelve at the time of trial. Ross asserts that his trial counsel

was ineffective in failing to request that the trial court determine J.W.’s

competency before allowing the Commonwealth to use his prior inconsistent

statement.

      We review challenges to an order dismissing a petition under the PCRA

to determine whether the order is supported by the evidence of record and is

free of legal error. See Commonwealth v. Halley, 870 A.2d 795, 799 n.2

(Pa. 2005). The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record. See Commonwealth v.

Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

      Counsel is presumed effective; thus, an appellant has the burden of

proving otherwise. See Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.

Super. 2004). “In order for Appellant to prevail on a claim of ineffective


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assistance of counsel, he must show, by a preponderance of the evidence,

ineffective assistance of counsel which … so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.

Super. 2005) (citation omitted). It is well settled that

      [t]o plead and prove ineffective assistance of counsel a
      petitioner must establish: (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. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012)

(citation omitted).

      In assessing a claim of ineffectiveness, when it is clear that an

appellant has failed to meet the prejudice prong, the court may dispose of

the claim on that basis alone, without a determination of whether the first

two prongs have been met. See Commonwealth v. Travaglia, 661 A.2d

352, 357 (Pa. 1995). “To establish the [prejudice] prong, Appellant must

show that there is a reasonable probability that the outcome of the

proceedings would have been different but for counsel’s action or inaction.”

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).

      Here, the PCRA court concluded that Ross had not established

prejudice, as J.W.’s live testimony at trial – that he didn’t remember the

shooting – was actually a benefit to Ross. See Notice of Intent to Dismiss,

12/4/2015, at 1. This, however, misconstrues Ross’s argument. Clearly, he


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does not object to J.W.’s live testimony, which was not inculpatory evidence.

It is just as clearly not exculpatory evidence, as it amounts to no more than,

at best, a witness who did not remember the crime. What Ross rightfully

focuses on is the use of the prior recorded statement of J.W., which was

admissible as evidence that he committed the crime.

      “A child’s competency to testify is a threshold legal issue that a trial

court must decide.” Commonwealth v. Pena, 31 A.3d 704, 706 (Pa. Super

2011) (citation omitted). The competency of hearsay declarants is governed

by the general rules of testimonial capacity. See Commonwealth v. Ware,

329 A.2d 258, 272 (Pa. 1974). Under these rules, every witness is presumed

to be competent. See Pa.R.E. 601(a). Thus, to succeed on this claim, Ross

bore the burden of establishing, by clear and convincing evidence, that J.W.

lacked the “minimal capacity … (1) to communicate, (2) to observe an event

and accurately recall that observation, and (3) to understand the necessity

to speak the truth.” Pena, 31 A.3d at 707.

      It is undisputed that there was no competency hearing for J.W.

Furthermore, it is undisputed that Ross’s trial counsel did not request one.

Just as importantly, the PCRA court did not provide Ross an opportunity,

through a hearing on his petition, to meet his burden of proof on this issue.

However, we conclude that, in any event, Ross cannot establish that he was

prejudiced by counsel’s failure to request a competency hearing for J.W.




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        The primary relevance of J.W.’s testimony was the identification of

Ross as the shooter. Even assuming that we would conclude that J.W. was

incompetent and his prior recorded statement should have been stricken,

another eyewitness explicitly identified Ross as the shooter.

        Similar to J.W., D.W.3 testified on the stand that he did not remember

the shooting. Thus, the Commonwealth once again played the D.W.’s prior

recorded statement for the jury. In his recorded statement, D.W. stated that

Ross shot Yates. See N.T., Jury Trial, 1/29-2/2/08, at 319. Combined with

testimony that the bullet that killed Yates was consistent with the gun found

behind Ross’s house, see id., at 595-596, as well DNA evidence that Ross

had likely handled the gun found behind his house, see id., at 726-728, we

conclude that the exclusion of J.W.’s testimony at trial was highly unlikely to

have affected the verdict.

        Ross highlights the differences between J.W.’s and D.W.’s recorded

statements. Specifically, he argues that J.W.’s statement was the only

evidence of a possible motive that Ross may have had for killing Yates.

However, even accepting this characterization as true does not alter our

conclusion that, had the jury not heard J.W.’s recorded statement, the

verdict would not have been affected. Ross has thus failed to establish that

the failure to request a competency hearing prejudiced him.

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3
    Ross has not challenged D.W.’s competency in this appeal.



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      Ross’s remaining issue on appeal, that PCRA counsel was ineffective in

filing to withdraw from this case, is predicated on this claim of trial counsel

ineffectiveness. As we have concluded that Ross cannot establish that trial

counsel’s action prejudiced him, his claim of PCRA counsel ineffectiveness

likewise fails. We therefore affirm the PCRA court’s order dismissing Ross’s

petition.

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2017




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