J-S39035-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
                 Appellee                    :
                                             :
                    v.                       :
                                             :
RAHEIM ALPHONSO WILLIAMS,                    :
                                             :
                 Appellant                   :          No. 1960 MDA 2015

              Appeal from the PCRA Order November 2, 2015
               in the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0005490-2011

BEFORE:     STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                             FILED JULY 26, 2016

      Raheim Alphonso Williams (Appellant) appeals from the November 2,

2015 order which dismissed his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Also before us is a petition to

withdraw filed by Appellant’s counsel and a no-merit brief pursuant to

Commonwealth        v.   Turner,       544       A.2d     927   (Pa.   1988),   and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We

grant counsel’s petition and affirm.

      This Court offered the following history of the case in Appellant’s direct

appeal.

      On the night of July 17, 2011, Tyler Knaub and Todd Lippy
      accompanied their friend Mikey to his house at 729 Jessop Place,
      York City. They opened the back door, walked through the
      kitchen and went into the living room, where they joined two
      other residents of the house, Jay and Cash. While the five men


*Retired Senior Judge assigned to the Superior Court.
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        were in the living room, [Appellant] and an accomplice, both of
        whom were armed, entered the house through the back door.
        They walked into the living room, and [Appellant] asked if
        anyone knew where he could find a girl whom he thought lived in
        the house.      When no one could provide the information,
        [Appellant] and his accomplice, who were both pointing guns at
        the victims, ordered them to take off their shoes and put the
        contents of their pockets on the coffee table. They then ordered
        the men to remove their pants and stand by the front door with
        their backs to them.

              The morning after the robbery, Knaub and Lippy reported
        the incident to police.

              On June 5, 2012, at the conclusion of a two-day trial, a
        jury convicted [Appellant] of two counts of robbery and two
        counts of simple assault. On August 1, 2012, the court imposed
        an aggregate sentence of 15½ to 40 years for the robbery
        convictions, with no additional sentence for simple assault. The
        court also ordered [Appellant] to pay restitution.

Commonwealth v. Williams, 100 A.3d 322 (unpublished memorandum at

1-2).    This Court affirmed Appellant’s judgment of sentence, id., and our

Supreme Court denied his petition for allowance of appeal on October 7,

2014. Commonwealth v. Williams, 101 A.3d 786 (Pa. 2014).

        On September 4, 2015, Appellant timely filed pro se a PCRA petition.

Counsel was appointed, and a hearing was held. Thereafter, the PCRA court

denied the petition, and Appellant timely filed the instant appeal.        Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

        In this Court, Appellant’s counsel filed a petition to withdraw and a

Turner/Finley brief raising the following issues that Appellant wants this

Court to review:



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       I.    Whether the [PCRA] court erred in denying Appellant’s
             PCRA petition when [trial] counsel was ineffective for
             failing to file a pretrial motion to suppress a photo lineup
             which was later introduced as evidence at trial?

       II.   Whether the PCRA court erred in denying Appellant’s PCRA
             petition when appellate counsel was ineffective for failing
             to appeal the court’s denial of the Batson[1] challenge
             made during voir dire?

Turner/Finley Brief at 4 (unnecessary capitalization omitted).

       Before we may address the potential merit of Appellant’s claims, we

must determine if counsel has complied with the technical requirements of

Turner and Finley.

             … Turner/Finley counsel must review the case zealously.
       Turner/Finley counsel must then submit a “no-merit” letter to
       the trial court, or brief on appeal to this Court, detailing the
       nature and extent of counsel’s diligent review of the case, listing
       the issues which the petitioner wants to have reviewed,
       explaining why and how those issues lack merit, and requesting
       permission to withdraw.

             Counsel must also send to the petitioner: (1) a copy of
       the “no-merit” letter/brief; (2) a copy of counsel’s petition to
       withdraw; and (3) a statement advising petitioner of the right to
       proceed pro se or by new counsel.

             If counsel fails to satisfy the foregoing technical
       prerequisites of Turner/Finley, the court will not reach the
       merits of the underlying claims but, rather, will merely deny
       counsel’s request to withdraw. Upon doing so, the court will
       then take appropriate steps, such as directing counsel to file a
       proper Turner/Finley request or an advocate’s brief.

              However, where counsel submits a petition and no-merit
       letter that do satisfy the technical demands of Turner/Finley,
       the court—trial court or this Court—must then conduct its own

1
    Batson v. Kentucky, 476 U.S. 79 (1986).

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      review of the merits of the case. If the court agrees with
      counsel that the claims are without merit, the court will permit
      counsel to withdraw and deny relief. By contrast, if the claims
      appear to have merit, the court will deny counsel’s request and
      grant relief, or at least instruct counsel to file an advocate’s
      brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)

(citations omitted).

      We are satisfied that counsel has complied with the technical

requirements of Turner and Finley.          Therefore, we will consider the

substantive issues contained in counsel’s brief.

      “Our standard of review of a trial court order granting or denying

relief under the PCRA calls upon us to determine ‘whether the determination

of the PCRA court is supported by the evidence of record and is free of legal

error.’” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013)

(quoting Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super.

2011)).

      In his PCRA petition, Appellant raised two claims of ineffective

assistance of counsel.    “It is well-established that counsel is presumed

effective, and the defendant bears the burden of proving ineffectiveness.”

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). To overcome this

presumption, Appellant must show each of the following:             “(1) the

underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or



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her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel’s deficient performance.”     Id.   Appellant’s claim will be

denied if he fails to meet any one of these three prongs. Id.

      Appellant’s first issue is whether trial counsel was ineffective in failing

to file a motion to suppress, as unduly suggestive, a photo lineup which

ultimately was admitted into evidence at trial. Turner/Finley Brief at 7.

      “’Whether an out of court identification is to be suppressed as

unreliable, and therefore violative of due process, is determined from the

totality of the circumstances.’” Commonwealth v. Fulmore, 25 A.3d 340,

346 (Pa. Super. 2011) (quoting Commonwealth v. Carson, 741 A.2d 686,

697 (Pa. 1999)).   “Suggestiveness in the identification process is a factor to

be considered in determining the admissibility of such evidence, but

suggestiveness alone does not warrant exclusion.” Id. (internal quotation

marks and citation omitted).

      “Photographs used in line-ups are not unduly suggestive if the

suspect’s picture does not stand out more than those of the others, and the

people depicted all exhibit similar facial characteristics.”   Commonwealth

v. Fisher, 769 A.2d 1116, 1126 (Pa. 2001). “A photographic identification

is unduly suggestive if, under the totality of the circumstances, the

identification procedure creates a substantial likelihood of misidentification.”

Commonwealth v. DeJesus, 860 A.2d 102, 112 (Pa. 2004).




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      Appellant complained that he was only one of two men pictured who

wore his hair in cornrows while the others were bald or had shorter

hairstyles. Turner/Finley Brief at 7. Further, Appellant contended that not

all of the men depicted were of the same skin tone as he. Id.

      Our review of the photo array confirms counsel’s assertion that the

claim lacks merit. Although not all of the men have identical coloring or hair

styles, all fit within the witnesses’ description of the perpetrators as “two

black males, different heights and different skin complexion, darker and

lighter.” Turner/Finley Brief at 7 (quoting N.T., 10/21/2015, at 9). More

importantly, nothing about the array causes Appellant’s photo to stand out

from the others to suggest that he be identified. See Commonwealth v.

Howard, 659 A.2d 1018, 1023 (Pa. Super. 1995) (affirming the denial of a

suppression motion where the “appellant’s picture did not stand out more

than the other photos and the men depicted therein all exhibited similar

facial and bodily characteristics”).

      Because the underlying suppression issue lacks merit, counsel was not

ineffective in failing to pursue it. Commonwealth v. Keaton, 82 A.3d 419,

426 (Pa. 2013) (quoting Commonwealth v. Pursell, 724 A.2d 293, 304

(Pa. 1999)) (“[I]t is axiomatic that [trial] counsel will not be considered

ineffective for failing to pursue meritless claims.”).




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      Appellant’s remaining issue is whether direct appeal counsel was

ineffective in failing to appeal the trial court’s denial of Appellant’s Batson

challenge. Turner/Finley Brief at 9.

            In Batson, the United States Supreme Court held that the
      Equal Protection Clause forbids a prosecutor from challenging
      potential jurors solely on account of their race. The framework
      for analyzing a Batson claim is three-fold:

            [F]irst, the defendant must make a prima facie
            showing that the circumstances give rise to an
            inference that the prosecutor struck one or more
            prospective jurors on account of race; second, if the
            prima facie showing is made, the burden shifts to the
            prosecutor to articulate a race-neutral explanation
            for striking the juror(s) at issue; and third, the trial
            court must then make the ultimate determination of
            whether the defense has carried its burden of
            proving purposeful discrimination.
                                     ***

            The second prong of the Batson test, involving the
            prosecution’s obligation to come forward with a race-
            neutral explanation of the challenges once a prima
            facie case is proven, does not demand an
            explanation that is persuasive, or even plausible.
            Rather, the issue at that stage is the facial validity of
            the    prosecutor’s    explanation.         Unless      a
            discriminatory intent is inherent in the prosecutor’s
            explanation, the reason offered will be deemed race
            neutral.

                   If a race-neutral explanation is tendered, the
            trial court must then proceed to the third prong of
            the test, i.e., the ultimate determination of whether
            the opponent of the strike has carried his burden of
            proving purposeful discrimination. It is at this stage
            that the persuasiveness of the facially-neutral
            explanation proffered by the Commonwealth is
            relevant.



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Commonwealth v. Williams, 980 A.2d 510, 529-30 (Pa. 2009) (quoting

Commonwealth v. Cook, 952 A.2d 594, 602-03 (Pa. 2008)) (citations,

quotation marks, and emphasis omitted).

      “[A] trial court’s decision on the ultimate question of discriminatory

intent represents a finding of fact of the sort accorded great deference on

appeal   and    will   not   be   overturned    unless   clearly   erroneous.”

Commonwealth v. Roney, 79 A.3d 595, 619 (Pa. 2013) (quoting

Williams, 980 A.2d at 531).       “Such great deference is appropriate and

warranted because the trial court, having viewed the demeanor and heard

the tone of voice of the attorney exercising the challenge, is uniquely

positioned to make credibility determinations.” Id.

      The PCRA court, which also sat as the trial court, offered the following

description of Appellant’s Batson challenge at trial:

            Defendant is African-American. During trial, [trial counsel]
      raised a Batson challenge when the prosecutor moved to strike
      the only African-American juror on the jury panel.            The
      prosecutor explained three reasons for striking the juror. First,
      because the juror was a nursing assistant, and the prosecutor
      likened the profession to clergy or teachers, who[m] the
      prosecutor categorized as having a greater amount of sympathy
      generally. Second, the juror failed to make eye-contact with the
      prosecutor, and third because the juror lived in an area [(South
      Queen Street)] where her last name [(Johnson)] was associated
      by police with criminal activity.

PCRA Court Opinion, 11/2/2015, at 4 (footnote omitted).        The trial/PCRA

court determined that Appellant made his prima facie showing and that the




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Commonwealth offered race-neutral reasons for the strike, and gave the

following explanation for its decision to deny the challenge:

            I am going to find that I don’t believe that the
      Commonwealth intended to use this in a racial manner. I think
      the reason stated for striking her [] based on where she lived is
      weak, and it raises concern with the [trial c]ourt because that is
      a predominantly African-American neighborhood.

            [The    Commonwealth’s      presumption]      that   because
      somebody is named Johnson and must be related to a bunch of
      criminal Johnsons, also has a taste about it that is not in itself as
      neutral as this [c]ourt would like to hear in the circumstances
      that she is the sole African-American on this panel.

            However, putting that aside I find that the rational[e]
      about striking the nurses, teachers and clergy is a racially
      neutral one. The lack of eye contact [-] you have to give a
      certain level of deference to counsel for either side to use their
      experience and knowledge on how people answer questions in
      exercising challenges, so I will deny the motion at this point.

N.T., 6/4-5/2012, at 95.

      Thus, the PCRA court gave serious consideration to Appellant’s Batson

challenge but ultimately was convinced, based upon the totality of the

circumstances, that the Commonwealth was not guilty of purposeful

discrimination. Our review of the record reveals no reason why we “should

not extend great deference to the PCRA court’s ruling on the question of the

prosecutor’s discriminatory intent or lack thereof.” Roney, 79 A.3d at 622.

Accordingly, the claim on appeal challenging the court’s ruling on the

Batson challenge would not have merited Appellant relief.            Appellant’s




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appellate counsel was not ineffective in failing to pursue this non-meritorious

claim on appeal.

      Because we agree with Appellant’s counsel that none of the issues

Appellant raised in his PCRA petition has merit, we grant his petition to

withdraw and affirm the order dismissing Appellant’s PCRA petition.

      Petition to withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/26/2016




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