J-S69018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

CHARLES CABINESS

                            Appellant                  No. 428 WDA 2017


                 Appeal from the PCRA Order February 15, 2017
               in the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0016743-2009


BEFORE: BOWES, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                            FILED JANUARY 2, 2018

        Appellant, Charles Cabiness, appeals from the order entered February

15, 2017, denying his petition for collateral relief filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        A prior panel of this Court summarized the relevant facts as follows:

        In May 2009, Luzay Watson (“Watson”) shot and killed Davon
        Young. Two months later, Young’s sister, Monnica Gay (“Nikki”),
        testified at Watson’s preliminary hearing, following which Watson
        was held for trial.

        After the preliminary hearing, Watson remained in the Allegheny
        County Jail. He made a number of phone calls to Kevin Watson
        (“Kevin”), his brother, and his girlfriend, Chrissy Stubbs
        (“Stubbs”), from jail. In these phone calls, the parties discussed
        eliminating the witnesses against Watson. In one particular
        phone call, Stubbs told Watson that [Appellant] (who is also his
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S69018-17


     brother) was “posted up”, or waiting around, Nikki’s sister’s
     house.

     In the late morning of August 22, 2009, [Appellant] shot Nikki in
     the back of the head while she was outside her sister Donneika’s
     house, in the company of multiple neighbors and her sister’s
     young children.      Nikki’s younger sister, Shanneika Gay
     (“Shanneika”) was also present, as she had spent the night at
     Donneika’s house. Shanneika was on the second floor of the
     residence when she heard a gunshot. She ran outside and saw
     [Appellant] running away with a gun in his hand. Shanneika,
     who was familiar with [Appellant] because they had lived in the
     same neighborhood for a time, said, “Is that Chuckie?” In
     response, [Appellant] turned and made eye contact with
     Shanneika as he continued to flee. Nikki died shortly thereafter.

     On the same day as the shooting, Shanneika gave the police a
     detailed statement about what she observed and picked
     [Appellant]’s picture out of a photo array. She also identified
     [Appellant] as her sister’s murderer at trial and testified to what
     she observed on the morning of August 22, 2009. The jury
     found [Appellant] guilty of first degree murder, [18 Pa.C.S. §
     2502(a)],1 and the trial court subsequently sentenced him to life
     imprisonment without the possibility of parole. [Appellant] filed
     a pro se post-sentence motion, which was denied as a matter of
     law.
           1
              We note for completeness that [Appellant] was
           tried twice. The first trial occurred in 2010 and
           resulted in a mistrial because the jury could not
           reach a unanimous verdict.        The judgment of
           sentence at issue here is the product of his retrial in
           2011.

See Commonwealth v. Cabiness, 105 A.3d 800 (Pa. Super. 2014)

(unpublished memorandum at 1-3).        Appellant timely appealed, and our

Court affirmed his judgment of sentence.    Id. The Pennsylvania Supreme

Court denied his petition for allocatur. See Commonwealth v. Cabiness,

105 A.3d 734 (Pa. 2014).



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      In August 2015, Appellant pro se filed a timely PCRA petition. Counsel

was appointed, and after some continuances, filed an amended petition. The

Commonwealth filed a response in opposition to the petition.        In January

2017, the PCRA court sent notice pursuant to Pa.R.Crim.P. 907 that

Appellant’s petition would be dismissed without a hearing. Appellant did not

file a response to the notice, and thereafter, the court dismissed Appellant’s

petition.

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

statement of errors complained of on appeal. Instead of issuing an opinion

pursuant to Pa.R.A.P. 1925(a), the PCRA court relied upon the reasoning

outlined in its Pa.R.Crim.P. 907 notice, which cites no authority and does not

expand upon its holdings beyond one or two sentences for each point.

      On appeal, Appellant raises the following issues for our review:

      I. Did the lower court abuse its discretion in denying the petition
      alleging counsel’s ineffectiveness without a hearing, where
      [Appellant] established the merits of the claim that trial counsel
      was ineffective for failing to challenge the competency of key
      Commonwealth witness Shanneika Gay?

      II. Did the lower court abuse its discretion in denying the petition
      alleging counsel’s ineffectiveness without a hearing, where
      [Appellant] established the merits of the claim that trial counsel
      was ineffective for failing to call Danielle Hawkins to rebut the
      Commonwealth’s contention that telephone conversations
      between Luzay Watson, his brother, Kevin Watson, and friend,
      Chrissy Stubbs, at the Allegheny County Jail, involved locating
      and killing witnesses?

      III. Did the lower court abuse its discretion in denying the
      petition alleging counsel’s ineffectiveness without a hearing,
      where [Appellant] established the merits of the claim that trial

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       counsel was ineffective for failing to call Marquea Davis to testify
       for the defense as she did in the first trial?

       IV. Did the lower court abuse its discretion in denying the
       petition alleging counsel’s ineffectiveness without a hearing,
       where [Appellant] established the merits of the claim that trial
       counsel was ineffective for failing to adequately explain or
       otherwise ensure that [Appellant] knew and understood his
       rights, and advise him of his options, and the ramification of his
       choices, when the trial court denied his request for a mistrial due
       to a juror’s apparent misconduct, and limited his choices to
       either removing the juror and proceeding with only [eleven]
       jurors, or allowing the juror who disregarded the court’s
       instructions to remain on the panel?

Appellant’s Brief at 5-6 (unnecessary capitalization and suggested answers

omitted).1

       We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.        Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

       In this case, the PCRA court dismissed Appellant’s petition without a

hearing.     See PCRA Court Order, 1/12/17 (citing in support Pa.R.Crim.P.

____________________________________________


1
   Appellant also raises, as a separate issue, that his petition is cognizable
under the PCRA. See Appellant’s Brief at 17. As Appellant’s petition is
timely filed, the issues raised are within the purview of the PCRA, and the
trial court did not find that the petition was not cognizable under the PCRA,
it is unnecessary to further examine this issue.



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907).      There is no absolute right to an evidentiary hearing.            See

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On

appeal, we examine the issues raised in light of the record “to determine

whether the PCRA court erred in concluding that there were no genuine

issues of material fact and denying relief without an evidentiary hearing.”

Springer, 961 A.2d at 1264.

        All of Appellant’s issues involve the ineffective assistance of counsel.

We presume counsel is effective.       Commonwealth v. Washington, 927

A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish the

ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence: “(1) the underlying legal issue has arguable

merit; (2) that counsel’s actions lacked an objective reasonable basis; and

(3) actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).    “A petitioner establishes prejudice when he demonstrates that

there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. Id. A claim

will be denied if the petitioner fails to meet any one of these requirements.

See Springer, 961 A.2d at 1267 (citing Commonwealth v. Natividad,

938 A.2d 310, 322 (Pa. 2007)); Commonwealth v. Jones, 942 A.2d 903,

906 (Pa. Super. 2008).

        First, Appellant claims that the PCRA court erred in denying his petition

without a hearing where Appellant had established that counsel was

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ineffective for his failure to challenge the competency of Shanneika Gay.

See Appellant’s Brief at 18.     Appellant contends that because Ms. Gay’s

testimony differed between the preliminary hearing, the first trial, and the

second trial, her testimony was tainted.    Id. at 18.   Appellant claims that

counsel should have requested a taint hearing, because a determination of

whether Ms. Gay’s memory had been distorted was crucial to ensuring his

fair trial. Id. at 20-21. He baldly avers that had the court been asked to

address the issue of taint, it could only have concluded that Ms. Gay was

incompetent to testify. Id. at 21.

      Taint is “the implantation of false memories or the distortion of real

memories caused by interview techniques of law enforcement, social service

personnel, and other interested adults, that are so unduly suggestive and

coercive as to infect the memory of the child, rendering that child

incompetent to testify.” See Commonwealth v. Delbridge, 855 A.2d 27,

35 (Pa. 2003).   However, these concerns apply only to children under the

age of fourteen. See Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa.

Super. 2006) (citing Rosche v. McCoy, 156 A.2d 307 (Pa. 1959)).             The

concerns expressed in Delbridge “clearly become less relevant as a

witness’s age increases, ultimately being rendered totally irrelevant as a

matter of law by age fourteen.” See Judd, 897 A.2d at 1229. Thus, where

the witness is over the age of fourteen, the issue is one of credibility and not

of taint. Id. In Judd, we thus found no merit to a challenge to the denial of




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a taint hearing, where the witness was over the age of fourteen at the time

of trial. Id.

      Even had Appellant identified in his pleadings and brief the manner in

which Ms. Gay’s testimony “changed over time” — and he did not — Ms. Gay

was fourteen when she testified at trial. She was cross-examined by counsel

regarding her inconsistent statements, and the jury, as fact-finder, found

her credible. See Commonwealth v. Houser, 18 A.3d 1128, 1135-1136

(Pa. 2011) (noting that the jury is free to believe all, part, or none of the

evidence and to determine the credibility of the witnesses). Thus, the PCRA

court properly determined that there were no genuine issues of fact and that

this claim had no arguable merit, and we discern no abuse of its discretion.

See Springer, 961 A.2d at 1264; Johnson, 966 A.2d at 533.

      Second, Appellant claims that the PCRA court abused its discretion in

denying his petition without a hearing, because Appellant established the

merits of the claim that counsel was ineffective for failing to call a witness.

See Appellant’s Brief at 22. Appellant contends that the expert testimony of

Danielle Hawkins, Appellant’s girlfriend, could have been used to rebut the

Commonwealth’s contention that telephone conversations between Luzay

Watson, Appellant, their brother Kevin Watson, and Chrissy Stubbs, involved

locating and killing witnesses who had testified against him. Id. Appellant

contends Ms. Hawkins, who testified at his first trial, could have been

qualified as an expert in the interpretation of Appellant’s linguistics code.

Id.

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      At trial, the Commonwealth presented recordings of phone calls

between Appellant, his brothers, and Luzay Watson’s girlfriend, Chrissy

Stubbs.   Detective Vonzale Boose was admitted as an expert and testified

regarding certain slang terminology used in the conversations. In one of the

conversations, Luzay Watson indicated he was pleased that Appellant was

“posted up,” or waiting, outside of Monnica Gay’s home. Trial counsel cross-

examined Detective Boose regarding whether the conversations could be

interpreted as Mr. Watson attempting to obtain and raise funds to pay for a

lawyer.

      To establish ineffective assistance of counsel for failure to call a

witness, the petitioner must establish 1) the witness existed; 2) the witness

was available to testify for the defense; 3) counsel knew of, or should have

known of the existence of the witness; 4) the witness was willing to testify

for the defense; and 5) the absence of the testimony of the witness was so

prejudicial   as   to   have   denied   the   petitioner   a   fair   trial.   See

Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012). Specifically, to

show prejudice, the petitioner must show how “the uncalled witnesses’

testimony would have been beneficial under the circumstances of the case.”

Commonwealth v. Gibson, 951 A.3d 1110, 1134 (Pa. 2008).

      Generally, to qualify as an expert witness, “one must only possess

more expertise than is within the ordinary range of training, knowledge,

intelligence, or experience.” In re K.C.F., 928 A.2d 1046, 1050 (Pa. Super.

2007). Essentially, the witness need only have a reasonable pretension to

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specialized knowledge on a subject for which expert testimony is admissible.

See Commonwealth v. Riffert, 549 A.2d 566, 576 (Pa. Super. 1998). In

narcotics   investigations    involving   legally    intercepted    telephone

conversations, expert testimony regarding the cryptic language used is

permissible. See Commonwealth v. Kinard, 95 A.3d 279, 288 (Pa. Super.

2014) (en banc) (emphasis added) (finding that expert testimony of police

officer regarding coded language used by defendant in telephone calls

regarding drug transactions admissible). Specifically, this “cryptic language”

refers to the coded and encrypted language utilized by drug traffickers. See

Commonwealth v. Doyen, 848 A.2d 1007, 1014 (Pa. Super. 2004)

(finding state trooper’s testimony regarding drug dealers’ coded language

appropriate expert testimony).

      Here, Ms. Hawkins was apparently ready and willing to testify, and she

informed counsel of her availability and potential testimony.       Appellant

claims that, as a lifelong resident of the section of Pittsburgh in which the

murder took place, Ms. Hawkins was qualified as an expert beyond the

average resident of that area, but she was not called as a defense witness.

Further analysis of the notes of testimony establishes that the expert

testimony of Detective Boose was not the sole testimony leading to

Appellant’s conviction.   Other evidence and testimony, including an eye

witness to the shooting, were introduced to the jury. Accordingly, Appellant

cannot show that but for the failure to introduce the testimony of Ms.

Hawkins, the result of the proceeding would have been different, therefore

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his claim fails.   See Springer, 961 A.2d at 1267; Johnson, 966 A.2d at

533.

       Third, Appellant contends that the court abused its discretion in

denying the PCRA petition without a hearing, because trial counsel was

ineffective for failing to call Marquea Davis to testify at the second trial. See

Appellant’s Brief at 27. At the first trial, Ms. Davis had testified that the man

she saw running from the crime scene did not look like Appellant, and

Appellant   contends   that   her   testimony   discredited   the   testimony   of

Shanneika Gay. Id. at 28.

       As noted above, the petitioner must establish that the witness existed

and was available to testify for the defense, that counsel knew of the

existence of the witness, that the witness was willing to testify for the

defense, and that the absence of the testimony was so prejudicial as to deny

the petitioner a fair trial. Sneed, 45 A.3d at 1109. A petitioner must show

that the testimony would have been beneficial under the circumstances of

the case to establish prejudice. Gibson, 951 A.3d at 1134.

       Here, the PCRA court properly determined that Ms. Davis’ testimony

was not beneficial. Ms. Davis, who testified at the first trial, was discredited

on cross-examination, including admitting that she was an acquaintance of

Appellant and co-defendants; that she did not tell police who arrived on the

scene about what she had viewed; that she was thirty or forty feet away

from the shooter; and that she viewed the shooter running on a hillside.

See Notes of Testimony (N.T.), 8/11/10, at 535-37; 543-45, 548-53.

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      Thus, Appellant cannot establish prejudice, where the testimony was

not beneficial under the circumstances of the case. See Sneed, 45 A.3d at

1109; Gibson, 951 A.3d at 1134. Accordingly, the PCRA court did not err in

dismissing Appellant’s claim. See Springer, 961 A.2d at 1264; Johnson,

966 A.2d at 533.

      Finally, Appellant contends that the court abused its discretion in

denying Appellant’s petition without a hearing, because counsel was

ineffective for failing to adequately advise Appellant following the trial court’s

denial of his motion for a mistrial. See Appellant’s Brief at 31-32. Appellant

contends that he was not told he would be waiving both his right to be tried

by a jury of twelve and his right to challenge the court’s denial of his motion

for a mistrial on appeal. Id. at 37.

      This issue refers to an incident that occurred during deliberations. On

October 19, 2011, a juror had been excused from service and replaced with

an alternate, leaving one alternate juror remaining.       See N.T. at 501-02.

On October 20, 2011, the court read the jury its instructions, and the jury

began deliberations. Id. at 502-03. The remaining alternate was dismissed

when deliberations began. Id. at 502. On October 21, 2011, the court’s

tipstaff discovered that the jury foreperson was holding a page titled

“Reasonable Doubt,” which he immediately confiscated. Id. at 539.             The

court discussed the matter with counsel and agreed to conduct a voir dire of

the jurors. Id. at 540.




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       The jury foreperson was called first. Id. at 540. She explained she

had printed out the dictionary definition of “reasonable doubt” because jury

members were having difficulty remembering instructions. Id. at 542-43.

She had shown the document to two other jurors but did not think they had

read it. Id. at 542, 545-46.    The foreperson stated she was prepared to

follow the court’s instructions regarding reasonable doubt.        Id. at 543.

Appellant conferred with counsel.   Id. at 544.    Following this conference,

counsel moved for a mistrial, which the court denied. Id. at 545-46. The

court stated that it would reinstruct the jury on reasonable doubt and the

Commonwealth’s burden, but would voir dire the two jurors who had seen

the printout. Id. at 546. The additional jurors denied reading the document

and stated they had only seen the title of the printout. Id. at 547-51.

       The court asked counsel how he wished to proceed.           Id. at 552.

Counsel requested the opportunity to speak with Appellant and stated that

he would recommend the removal of the foreperson.            Id.    The court

indicated counsel could talk to Appellant regarding the issue and that if he

chose to keep the foreperson, the court would redefine reasonable doubt and

the Commonwealth’s burden for the jurors. Id. at 553. If Appellant chose

to strike the foreperson, Appellant could proceed with eleven jurors. Id. at

553.

       Following a discussion with Appellant, counsel stated that Appellant

wished to strike the foreperson. Id. at 554. Counsel stated Appellant was

prepared to go forward with eleven jurors and requested that the court

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recharge on reasonable doubt. Id. at 554. The court colloquied Appellant

on the rights he was giving up by proceeding with eleven jurors, and

Appellant indicated he wished to proceed. Id. at 554-56. The court then

dismissed the foreperson and reinstructed the jury on reasonable doubt. Id.

at 555. Shortly thereafter, the jury returned a guilty verdict. Id. at 654.

      According to Appellant, rather than agreeing to proceed with less than

twelve jurors, counsel should have requested a mistrial a second time. See

Appellant’s Brief at 36-37. Appellant claims that the court would have been

compelled to grant this motion, relying on Commonwealth v. Stewart,

448 A.2d 598 (Pa. Super. 1982).

      In Stewart, the Court noted that a defendant may agree to proceed

with less than twelve jurors.     See Stewart, 448 A.2d at 599.         If the

defendant objects to the dismissal of a juror, then he may refuse to proceed

with less than twelve jurors and require the court to declare a mistrial. Id.

at 600. However, a mistrial is required only when a defendant is forced to

proceed over an objection. Id. Where the defendant does not object to the

numerical composition of the jury, he waives this claim for purposes of

appeal. Id. at 600-01.

      The procedure outlined in Stewart is inapplicable here.            Upon

discovering the jury foreperson’s indiscretion, counsel promptly moved for a

mistrial. See N.T. at 545-46. The court denied the motion, concluding that

the foreperson’s actions did not prejudice Appellant. Id. Nevertheless, the

court offered Appellant a lesser remedy, i.e. the dismissal of the foreperson

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and reinstruction of the remaining eleven jurors on reasonable doubt. Id.

at 552-53.     Following consultations with counsel and an oral colloquy with

the court, Appellant knowingly agreed to proceed with eleven jurors. Id. at

55-56. To be clear, had Appellant rejected the court’s offer to dismiss the

foreperson, deliberations would have proceeded accordingly, and no new

grounds for a mistrial existed. Thus, Counsel could not compel a mistrial.2

Thus, there is no merit to this claim.             See Springer, 961 A.2d at 1264;

Johnson, 966 A.2d at 533.

       Accordingly, we discern no error in the PCRA court’s decision to

dismiss Appellant’s petition without an evidentiary hearing.            Appellant’s

claims are without merit, and he is entitled to no relief. See Ragan, 923

A.2d at 1170.

       Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/2/2018



____________________________________________


2
  Appellant was free to challenge the court’s denial of his mistrial motion on
direct appeal.



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