J-S50011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

BRANDON RUIZ

                           Appellant                  No. 1654 MDA 2015


                Appeal from the PCRA Order September 3, 2015
       in the Court of Common Pleas of Dauphin County Criminal Division
                       at No(s): CP-22-CR-0000285-2012

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 08, 2016

        Appellant, Brandon Ruiz, appeals from the order denying his first Post

Conviction Relief Act1 (“PCRA”) petition.     Appellant contends trial counsel

was ineffective for not seeking a mistrial or conducting a colloquy of the

remaining jurors after a juror was dismissed because she was allegedly

aware of the area in question and some of the witnesses.         Appellant also

asserts trial counsel was ineffective for not calling an expert to testify about

eyewitness identification. We affirm.

        We adopt the facts and procedural history set forth by a prior panel of

this Court:

              Ms. [Tiffany] Daniels’s testimony is summarized as
              follows: Ms. Daniels and the Victim were engaged at

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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          the time of the shooting. The Victim aspired to
          become a rapper, posted videos of himself rapping
          on YouTube, and performed at clubs and events.
          The Victim had a reputation as being involved in the
          hip-hop scene and he maintained a public image as
          being affluent.

          On December 3, 2011, Ms. Daniels and the Victim
          went to the Derry Street Café (“Café”), left, went to
          another bar, and then returned to the Café at
          approximately 12:15 a.m. on December 4, 2011.
          Ms. Daniels was intoxicated by the end of the night.
          Although Ms. Daniels was familiar with Appellant and
          [Clarence Bender (“Co-Defendant”)], she did not see
          either individual or [Appellant’s friend,] Mr. [Tyrell]
          Weaver at the Café. Ms. Daniels and the Victim left
          the Café at closing time, which was approximately
          1:30 a.m. In the parking lot, the Victim tried to
          maneuver his and Ms. Daniels’s car out of its spot,
          but it was blocked by another vehicle. The Victim
          exited his vehicle and asked a nearby individual if he
          knew who owned the vehicle, but the individual did
          not respond. The Victim turned and lifted his right
          leg, at which point [Co-Defendant] grabbed the
          Victim from behind and demanded that he “give that
          shit up.” [Co-Defendant] grabbed the Victim by the
          neck with his left arm and, with his right hand, held
          a chrome semiautomatic gun against the right side
          of the Victim’s neck. When Ms. Daniels heard [Co-
          Defendant] threaten the Victim, she bent down to
          look out of the open driver’s side doorway.

          The Victim reached for his gun as he was attacked.
          As [Co-Defendant] and the Victim tussled, Appellant,
          who was unarmed, patted down the Victim. Ms.
          Daniels heard a gunshot, exited the vehicle, and
          found the Victim lying face-up in a pool of blood.
          One of the chains the Victim had that night was
          missing after the shooting. Ms. Daniels asserted in
          her testimony that [Co-Defendant] shot the Victim.

          Mr. [John] Sanks[, head of security at the Café,]
          testified that the Victim and Ms. Daniels were
          frequent patrons of the Café. Mr. Sanks testified


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          that he was familiar with Appellant and [Co-
          Defendant], and that the two men arrived around
          midnight on December 4, 2011. According to Mr.
          Sanks’s testimony, he patted down both Appellant
          and [Co-Defendant], but found no contraband. Mr.
          Sanks testified that he did not witness Appellant or
          [Co-Defendant] interacting with Ms. Daniels or the
          Victim that night.

          Mr. Sanks testified that Ms. Daniels and the Victim
          left the Café, that [Co-Defendant], Mr. [Christopher]
          Diggs, and Mr. Weaver left the bar a few minutes
          later, and that Appellant walked out afterwards. Mr.
          Sanks testified that, upon hearing a gunshot outside,
          he looked across the street and saw [Co-Defendant],
          Appellant, the Victim and Ms. Daniels in the area
          where the shot came from; Mr. Sanks then watched
          [Co-Defendant] and Appellant cross Derry Street to
          return to the SUV.        According to Mr. Sanks’s
          testimony, [Co-Defendant] ran away from the scene
          first. Mr. Sanks testified that [Co-Defendant] and
          Appellant got into the SUV and, after a moment, the
          SUV drove westward down Derry Street.

                               *    *    *

          According to       [Harrisburg Police    Department]
          Detective [Christopher] Krokos’s testimony, following
          an interview on December 4, 2011, Appellant
          provided him with a statement that essentially
          claimed     that    Appellant   and   [Co-Defendant]
          approached the Victim to assist him in maneuvering
          his vehicle, but [Co-Defendant] shot the Victim and
          took two of the Victim’s chains. Detective Krokos
          testified that, following an interview on January 3,
          2012, [Co-Defendant] provided a statement that
          asserted that Appellant was fighting with the Victim
          in the parking lot, [Co-Defendant] approached the
          two in order to stop the fight, but Appellant shot the
          Victim.      Detective Krokos testified that the
          surveillance video from the Café established Mr.
          Diggs, Mr. Weaver, and [Co-Defendant] arrived at
          the Café together, and that Appellant met them at
          the bar.       Detective Krokos testified that the


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            surveillance video from the Café established that
            [Co-Defendant] walked up directly behind the Victim.

         (Trial Court Opinion, filed February 15, 2013, at 3-5, 14-
         15) (internal footnotes omitted).

            On February 22, 2012, the Commonwealth filed a
         criminal information charging Appellant with murder,
         robbery, and conspiracy. . . .

            Following trial, a jury found Appellant guilty of second
         degree murder and robbery. The jury found Appellant not
         guilty of conspiracy. On November 5, 2012, the court
         sentenced Appellant to life imprisonment for the murder
         conviction. The court imposed a concurrent term of ten
         (10) to twenty (20) years’ imprisonment for the robbery
         conviction.

Commonwealth v. Ruiz, 2230 MDA 2012, at 1-3 (Pa. Super. Oct. 9, 2013)

(footnote omitted). Appellant timely appealed; he challenged the weight of

the evidence and whether the court erred by not severing the trial.           This

Court affirmed on October 9, 2013, but vacated the judgment of sentence

for robbery. Appellant did not file a petition for allowance of appeal with our

Supreme Court.

      Appellant   filed   a   timely,   counseled   PCRA   petition   on   Monday,

November 10, 2014. See 1 Pa.C.S. § 1908 (stating last day of time-period

cannot fall on weekend or legal holiday). Following an evidentiary hearing,

at which the district attorney and Appellant’s trial counsel testified, the court

denied Appellant’s petition on October 3, 2015. Appellant timely appealed

and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

      Appellant raises the following issues:



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         Whether Appellant was deprived of his constitutional right
         to effective assistance of counsel when his trial attorney
         failed to request a mistrial, or the alternative, request to
         have the remaining jurors colloquyed to ensure they were
         not tainted by the proceedings and could be fair and
         impartial after juror number 8 disclosed she was aware of
         the witnesses and areas discussed during the trial?

         Whether Appellant was deprived of his constitutional right
         to effective assistance of counsel when his trial attorney
         failed to request a Frye hearing to present expert witness
         identification testimony on the only eyewitness to identify
         the Appellant?

Appellant’s Brief at 5 (footnote omitted).

      We summarize Appellant’s arguments for both of his issues. Appellant

contends he was prejudiced because trial counsel failed to request a mistrial

after a juror was dismissed. He alternatively claims counsel was ineffective

by failing to have the remaining jurors questioned to ascertain their fairness

and impartiality after a juror was removed. Appellant also claims that in a

case issued subsequent to his trial, Commonwealth v. Walker, 92 A.3d

766 (Pa. 2014), our Supreme Court held the trial court had the discretion to

permit expert testimony on eyewitness identification.        He concedes that

although counsel cannot be found ineffective for failing to anticipate a

change in the law, the Walker holding is sufficiently significant that he is

entitled to a new trial. We decline to grant Appellant relief.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are




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supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted).

         [C]ounsel is presumed to have provided effective
         representation unless the PCRA petitioner pleads and
         proves that: (1) the underlying claim is of arguable merit;
         (2) counsel had no reasonable basis for his or her conduct;
         and (3) [the petitioner] was prejudiced by counsel’s action
         or omission. To demonstrate prejudice, [the petitioner]
         must prove that a reasonable probability of acquittal
         existed but for the action or omission of trial counsel. A
         claim of ineffective assistance of counsel will fail if the
         petitioner does not meet any of the three prongs. Further,
         a PCRA petitioner must exhibit a concerted effort to
         develop his ineffectiveness claim and may not rely on
         boilerplate allegations of ineffectiveness.

Commonwealth        v.   Perry,   959   A.2d   932,   936   (Pa.   Super.   2008)

(punctuation and citations omitted).

      After careful review of the parties’ briefs, the record, and the well-

reasoned decision by the Honorable Bernard Coates, Jr., we affirm on the

basis of the PCRA court’s decision.       See PCRA Ct. Op., 9/3/15, at 4-7

(holding (1) juror testified she did not discuss her knowledge with the jury;

(2) trial counsel opined insufficient basis for mistrial and did not believe juror

lied; and (3)    trial counsel had no reason to anticipate change in law).

Furthermore, we note       the    overwhelming evidence      of guilt including

eyewitness testimony from, inter alia, the victim’s fiancée, who was present

at the shooting, and surveillance video. See Ruiz, 2230 MDA 2012, at 1-3.

Accordingly, having discerned no error, we affirm.        See Abu-Jamal, 941

A.2d at 1267.



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     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2016




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