J-S24010-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
            v.                             :
                                           :
SHANE OWEN STEWART,                        :
                                           :
                  Appellant                :           No. 1199 MDA 2015

                     Appeal from the Order June 10, 2015
                in the Court of Common Pleas of York County,
              Criminal Division, No(s): CP-67-CR-0007100-2011

BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED APRIL 20, 2016

      Shane Stewart (“Stewart”) appeals from the Order denying his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      This Court previously set forth the following relevant facts:

             On October 14, 2011, at approximately 10:55 a.m., Denise
      Miller (“the victim”), was home alone at the residence in Fawn
      Township, York County, that she shared with her sister and
      brother-in-law. As she exited her residence, she was confronted
      by [Stewart,] who was wearing a ski mask, dark clothes and
      gloves, and who forced his way into the residence. [Stewart]
      pointed a gun at the victim’s face and asked where her nephew
      and his girlfriend were, because they owed him money. After
      the victim resisted, and attempted to push the gun away,
      [Stewart] forced her into a downstairs bathroom, and blocked
      the exit with a chair. The victim then heard [Stewart] run
      upstairs. After approximately ten minutes, when the victim
      heard no more sounds, she was able to exit the bathroom, and
      went to a neighbor’s house to call the police. The subsequent
      police investigation revealed that [Stewart] had stolen a .22
      caliber Ruger semiautomatic pistol and ammunition from the
      victim’s residence.     At trial, the victim testified that she
      recognized [Stewart’s] voice because she had interacted with
J-S24010-16


      him previously when he performed odd jobs around her
      residence.    [Stewart’s] friend, Felicia Asbury [“Asbury,”]
      informed police that she had driven [Stewart] to the victim’s
      home at approximately 10:00 a.m. on October 14, 2011, and
      that she waited in the car for approximately five minutes while
      [Stewart] walked toward the residence.         When [Stewart]
      returned, he was carrying a dark-colored bag and appeared
      agitated.

Commonwealth v. Stewart, 91 A.3d 1289 (Pa. Super. 2013) (unpublished

memorandum at 1-2).       Following a jury trial, Stewart was convicted of

burglary, robbery, theft by unlawful taking, receiving stolen property,

criminal trespass, terroristic threats, possessing instruments of crime, false

imprisonment, and simple assault.1 The trial court sentenced Stewart to an

aggregate prison term of 16 to 32 years.      Stewart filed a post-sentence

Motion, which the trial court denied.

      This Court affirmed Stewart’s judgment of sentence in November

2013, and the Pennsylvania Supreme Court denied his Petition for Allowance

of Appeal. See Stewart, 91 A.3d 1289, appeal denied, 89 A.3d 1285 (Pa.

2014).

      In November 2014, Stewart, pro se, filed a timely PCRA Petition. The

PCRA court appointed Stewart counsel, who thereafter filed an Amended

PCRA Petition.    Following a hearing, the PCRA court denied Stewart’s

Petition.   Stewart filed a timely Notice of Appeal and a court-ordered




1
  18 Pa.C.S.A. §§ 3502, 3701(a)(1)(ii), 3921(a), 3925(a), 3503(a)(1)(i),
2706(a)(1), 907(b), 2903 and 2701.


                                  -2-
J-S24010-16


Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement of

Matters Complained of on Appeal.

      On appeal, Stewart raises the following claims for our review:

      I. Did the PCRA court err by holding that trial counsel was not
      ineffective for failing to present the testimony or report of a
      state trooper to whom the victim could not identify the
      perpetrator immediately after the crime occurred?

      II. Did the PCRA court err by holding that trial counsel was not
      ineffective for failing to present evidence that [Stewart’s] eyes
      are blue, where the victim insisted that the perpetrator’s eyes
      are “dark?”

Brief for Appellant at 4.

      The applicable standards of review regarding the denial of a PCRA

petition and ineffectiveness claims are as follows:

            Our standard of review of a PCRA court’s denial of a petition
      for post[-]conviction relief is well-settled: We must examine
      whether the record supports the PCRA court’s determination, and
      whether the PCRA court’s determination is free of legal error.
      The PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

                                     ***

             It is well-established that counsel is presumed to have
      provided effective representation unless the PCRA petition pleads
      and proves all of the following: (1) the underlying legal claim is
      of arguable merit; (2) counsel’s action or inaction lacked any
      objectively reasonable basis designed to effectuate his client’s
      interest; and (3) prejudice, to the effect that there was a
      reasonable probability of a different outcome if not for counsel’s
      error. The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.




                                  -3-
J-S24010-16


Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(citations omitted).

      In his first claim, Stewart argues that trial counsel was ineffective for

failing to present either the testimony of Trooper Timothy Longenecker

(“Trooper Longenecker”) or his police report at trial. Brief for Appellant at

12, 14. Stewart asserts that Trooper Longenecker’s testimony is important

because he interviewed the victim immediately after the incident, and

indicated in his report that the victim could not name the suspect.       Id. at

12, 13-14. Additionally, Stewart claims that Trooper Longenecker identified

another individual as the primary suspect, and that no other witness testified

regarding another suspect at trial. Id. at 12.

             When raising a claim of ineffectiveness for the failure to
      call a potential witness, a petitioner satisfies the performance
      and prejudice requirements of the [ineffectiveness] test by
      establishing that: (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 defendant a fair trial. To demonstrate []
      prejudice, a petitioner must show how the uncalled witnesses’
      testimony would have been beneficial under the circumstances of
      the case. Thus, counsel will not be found ineffective for failing to
      call a witness unless the petitioner can show that the witness’s
      testimony would have been helpful to the defense. A failure to
      call a witness is not per se ineffective assistance of counsel[,] for
      such decision usually involves matters of trial strategy.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations

and quotation marks omitted).




                                   -4-
J-S24010-16


       Here, Stewart failed to prove that Trooper Longenecker was available

for trial.   See PCRA Court Opinion, 6/10/15, at 9.           Additionally, Stewart’s

claim that Trooper Longenecker would have testified that the victim did not

name a suspect immediately following the incident was cumulative to

testimony provided by Trooper Christopher Colarusso at trial.               See N.T.,

11/8/12, at 176. Thus, the fact to which Trooper Longenecker would have

testified had already been presented to the jury for consideration, and

Stewart      could   not   have   suffered   prejudice   as   a   result   of    Trooper

Longenecker’s absence at trial. See Commonwealth v. Milligan, 693 A.2d

1313, 1319 (Pa. Super. 1997) (stating that “[a]s a general rule, counsel will

not be deemed ineffective for failing to call witnesses whose testimony is

merely cumulative of that of other witnesses.”) (quotations omitted).

Accordingly, we cannot grant him relief on this claim.

       In his second claim, Stewart asserts that trial counsel was ineffective

for failing to present evidence that Stewart’s eyes are blue.                   Brief for

Appellant at 14.       Stewart argues that because the victim described the

perpetrator’s eyes as “dark,” the fact that his eyes are blue is an important

piece of identification evidence. Id. at 14-15.

       Here, the record indicates that trial counsel asked the victim about

Stewart’s eye color during cross-examination, and the victim stated that

they were dark. See N.T., 11/8/12, at 109. While the PCRA court observed

that Stewart’s eyes appear dark, “[t]he quantum of evidence presented as to



                                      -5-
J-S24010-16


[Stewart’s] identity was substantial.”   PCRA Court Opinion, 8/28/15, at 5;

see also id. at 4.    Indeed, the victim recognized Stewart based upon his

physical characteristics, his voice, and the fact that she had a prior

encounter with him. N.T., 11/18/12, at 99-101. In light of the evidence in

the record, Stewart has failed to prove that the introduction of more specific

evidence about his eye color would have resulted in a reasonable probability

of a different outcome at trial. See Commonwealth v. Steele, 961 A.2d

786, 801 (Pa. 2008) (holding that counsel was not ineffective for failing to

challenge specific evidence because the other identification evidence

introduced at trial overwhelmingly demonstrated appellant’s guilt).     Thus,

Stewart’s claim of ineffective assistance of counsel for failure to present

evidence of his eye color fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/20/2016




                                   -6-
