J-S20001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 MICHAEL T. DURDEN                         :
                                           :
                     Appellant             :   No. 1173 MDA 2017

              Appeal from the PCRA Order, entered June 30, 2017,
                 in the Court of Common Pleas of York County,
              Criminal Division at No(s): CP-67-CR-0001702-2013.


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                            FILED MAY 21, 2018

      Michael T. Durden appeals from the order denying his first petition for

relief pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§

9541-9546. Appellant’s counsel has filed a motion to withdraw.       We affirm

the order denying Appellant’s post-conviction relief and grant counsel’s

motion.

      The pertinent facts and procedural history have been summarized as

follows:

           On the night of October 26, 2012, the Dollar General in the
           North York Shopping Plaza was robbed at gunpoint by a
           black male. Two employees, Christie Clark and Terrance
           Generate, were working at the Dollar General that night
           around 8:30 p.m. Ms. Clark explained that not many
           customers were in the store at that hour because the store
           closed at 9:00 p.m. Both Ms. Clark and Mr. Generate
           testified that one customer caught [their] attention as he
           entered the store because he was wearing sunglasses when
           it was completely dark outside.
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       When the man wearing the sunglasses was the only one left
       in the store, he approached Mr. Generate and showed him
       a gun in his waistband. He and Mr. Generate then headed
       to the front of the store, and the perpetrator made contact
       with Ms. Clark. The perpetrator then took both employees
       to the back of the store, and he had Ms. Clark tie up Mr.
       Generate with a shoelace. The man then put Mr. Generate
       in the bathroom and took Ms. Clark back to the register and
       safe in front of the store. The man told Mr. Generate to stay
       in the bathroom or things would not be good for either one
       of the employees. Both employees took this as a threat. At
       the front of the store, Ms. Clark emptied the register and
       the safe, and she gave the money to the armed robber.
       After getting the money, the man tied up Ms. Clark in the
       back bathroom with Mr. Generate, and he told them to stay
       there for five minutes. The two employees complied with
       this request, and when they exited the bathroom, the armed
       robber was gone.

       [About two months later, on] December 22, 2012, the
       manager of the Dollar General recognized a similar man
       entering the store. The manager had reviewed the security
       footage multiple times. The manager approached Mr.
       Generate, who happened to be working that night as well,
       and asked him if the man who just entered was the same
       man who robbed the store in October. This man also wore
       sunglasses into the store when it was completely dark
       outside, and he had the same skin tone as the man who
       robbed the store. Once Mr. Generate informed the manager
       that he was very positive the man was the armed robber,
       the manager got the man’s license plate, and Mr. Generate
       contacted the police.

       Detective Haller, the case investigator, traced the license
       plate to a residence near the Dollar General. The vehicle
       was registered to Paula Butler, who is [Durden’s] girlfriend.
       The residence also belonged to Paula Butler. Mr. Haller went
       to the address and made contact with a person on the
       second floor. After shown a still shot of the security footage,
       that person identified [Durden] as one of the two men who
       entered the store on December 22, 2012. Mr. Haller then
       contacted Ms. Clark and put together a photo lineup for her
       to review. On January 8, 2013, she identified [Durden] in
       that lineup as the man who robbed the store in October.


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         When Detective Haller finally made contact with [Durden],
         Mr. Haller asked him why he was wearing sunglasses in the
         store when it was completely dark outside. [Durden]
         explained that he had problems with his eyes. When talking
         with [Durden], Mr. Haller noticed [Durden’s] mouth and how
         he spoke. [Durden’s] mouth, teeth and speech matched Ms.
         Clark’s observations during the robbery. Ms. Clark had told
         Detective Haller that the armed robber’s teeth were very
         distinctive because one of his teeth was chipped. After
         executing a search warrant on the residence of Paula Butler,
         Detective Haller found gloves that were very similar to those
         used in the robbery. No other evidence of the crime was
         found at the residence. Detective Haller then filed charges
         against [Durden].

Commonwealth v. Durden, No. 58 MDA 2014, unpublished memorandum

at 1-3 (citations and footnote omitted).

      On November 14, 2013, a jury convicted Durden of robbery and firearm

violations. On December 16, 2013, the trial court sentenced Durden to an

aggregate term of 11 to 22 years of imprisonment. Following the denial of his

post-sentence motion, Durden filed a timely appeal to this Court in which he

challenged the weight and sufficiency of the evidence supporting his

convictions. Finding no merit to either claim, we affirmed Durden’s judgment

of sentence on January 21, 2015. Durden, supra.

      On June 2, 2015, Appellant filed a pro se PCRA, and the PCRA court

appointed counsel. On June 30, 2017, the PCRA court held an evidentiary

hearing at which both Durden and trial counsel testified. At the conclusion of

the hearing, the PCRA court placed on the record its reasons for denying

Durden’s PCRA petition. This timely appeal follows. Both Durden and the

PCRA court have complied with Pa.R.A.P. 1925.


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     In lieu of an advocate’s brief, Durden counsel has filed a copy of her no-

merit letter and accompanying argument pursuant to the dictates of

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Thus, we will assess

counsel’s assertion that the issues Durden wishes to raise on appeal have no

merit under a Turner/Finley analysis.

     This Court has summarized:

            The Turner/Finley decisions provide the manner for
        post[-]conviction counsel to withdraw from representation.
        The holdings of those cases mandate an independent review
        of the record by competent counsel before a PCRA court or
        [an] appellate court can authorize an attorney’s withdrawal.
        The necessary independent review requires counsel to file a
        “no-merit” letter detailing the nature and extent of his [or
        her] review and list each issue the petitioner wishes to have
        examined, explaining why those issues are meritless. The
        PCRA court, or an appellate court if the no-merit letter is filed
        before it, see Turner, supra, then must conduct its own
        independent evaluation of the record and agree with counsel
        that the petition is without merit[.]

            [T]his Court [has] imposed additional requirements on
        counsel that closely track the procedure for withdrawing on
        direct appeal.       . . . [C]ounsel is required to
        contemporaneously serve upon his [or her] client his [or her]
        no merit letter and application to withdraw along with a
        statement that if the court granted counsel’s withdraw
        request, the client may proceed pro se or with a privately
        retained attorney[.]

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation

omitted). Counsel has complied with the mandates of Turner and Finley, as

summarized in Reed, supra.       Thus, we must determine whether we agree

with counsel’s assessment of Durden’s claims.

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      Durden wished to raise on appeal claims that trial counsel’s assistance

was ineffective for failing to: (1) file a motion to suppress the evidence seized

from his residence because the supporting search warrant lacked probable

cause; (2) obtain and analyze his cell phone’s location and cellular tower

triangulation date to corroborate the trial testimony of his alibi witness; and

(3) obtain DNA results from the shoelaces used during the robbery prior to

proceeding to trial. See Turner/Finley Brief at 5-6.

      Our scope and standard of review is well settled:

        In PCRA appeals, our scope of review is limited to the findings
        of the PCRA court and the evidence on the record of the PCRA
        court's hearing, viewed in the light most favorable to the
        prevailing party.   Because most PCRA appeals involve
        questions of fact and law, we employ a mixed standard of
        review. We defer to the PCRA court's factual findings and
        credibility determinations supported by the record. In
        contrast, we review the PCRA court's legal conclusions de
        novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(internal citations and quotations omitted).

      To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish, by a preponderance of the evidence,

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the

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underlying claim is of arguable merit; (2) counsel had no reasonable strategic

basis for his or her action or inaction; and (3) petitioner was prejudiced by

counsel's act or omission. Id. at 533.

      Moreover, trial counsel's strategic decisions cannot be the subject of a

finding of ineffectiveness if the decision to follow a particular course of action

was reasonably based and was not the result of sloth or ignorance of available

alternatives.   Commonwealth v. Collins, 545 A.2d 882, 886 (Pa. 1988)

(cited with approval by Commonwealth v. Hall, 701 A.2d 190, 204 (Pa.

1997)).    Counsel's approach must be "so unreasonable that no competent

lawyer would have chosen it." Commonwealth v. Ervin, 766 A.2d 859, 862-

63 (Pa. Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233, 234

(Pa. 1981). Our Supreme Court has defined “reasonableness” as follows:

              Our inquiry ceases and counsel’s assistance is deemed
          constitutionally effective once we are able to conclude that
          the particular course chosen by counsel had some reasonable
          basis designed to effectuate his client’s interests. The test is
          not whether other alternatives were more reasonable,
          employing a hindsight evaluation of the record. Although
          weigh the alternatives we must, the balance tips in favor of
          a finding of effective assistance as soon as it is determined
          that trial counsel’s decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting Com. ex

rel. Washington v. Maroney, 235 A.2d 349, 352-53 (Pa. 1967)). See also

Commonwealth v. Clark, 626 A.2d 154, 157 (Pa. 1993) (explaining that a

defendant     asserting   ineffectiveness   based   upon    trial   strategy   must

demonstrate that the “alternatives not chosen offered a potential for success


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substantially greater than the tactics utilized).”   A defendant is not entitled

to appellate relief simply because a chosen strategy was unsuccessful.

Commonwealth v. Buksa, 655 A.2d 576, 582 (Pa. Super. 1995).

      Finally, a finding of "prejudice" requires the petitioner to show "that

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

the result of the proceeding would have been different." Id. In assessing a

claim of ineffectiveness, when it is clear that 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.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).                 Counsel

cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

      The PCRA court summarized the testimony presented at the PCRA

hearing as follows:


         At the June 30, 2017 PCRA hearing, [Durden] testified that
         he asked [trial counsel] whether evidence garnered from the
         execution of the search warrant in the case could be
         suppressed. [Durden] does not believe that there was
         probable cause for the search warrant. During the search,
         a pair of purple and white gloves, utilized by [Durden] for
         work, were seized and used against [him] at trial. [Durden]
         acknowledged that the search warrant was premised upon
         identification evidence. [Durden] also complained that he
         never received any DNA results regarding his case. In the
         interest of judicial economy, [Durden] was allowed to orally
         raise this issue [even though it was not raised in his pro se
         petition].    [Durden] believes trial counsel should have
         obtained DNA results from the shoestrings, utilized to bind
         [the] victims, to show that [he] was not involved. [Durden]

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J-S20001-18


        orally raised a third matter, regarding cell phone records,
        which, also in the interest of judicial economy, was allowed.
        [Durden] testified that trial counsel should have obtained
        cell phone records for [his] phone. This would have,
        according to [Durden], shown that [Durden and his cell
        phone were] at Dick’s Sporting Goods at the time of the
        incident. [Durden] averred that he had informed [trial
        counsel] that he had an alibi from being at Dick’s Sporting
        Goods. On cross-examination, [Durden] admitted that he
        had no cell phone or DNA records to present at the PCRA
        hearing. On redirect, [Durden] offered that he had no idea
        whether any DNA results were ever produced by a lab.

            [Trial counsel] testified that the search warrant at issue
        was premised upon identification of [Durden] by victims
        after being shown a photo lineup. [He] saw no issues with
        the search warrant. [Trial counsel] felt the results of the
        search were actually helpful to the defense in that the
        search only produced the gloves and not any other
        instruments [or evidence] of the crime such as a specific
        shirt and hat or a firearm. Surveillance footage from Dick’s
        Sporting Goods had already been destroyed by the time
        [trial counsel] was appointed to the case. [Trial counsel]
        could not recall whether [Durden] had asked [him] to look
        into cell phone records. Moreover, [trial counsel] opined
        that cell phone records, if obtained, would have only
        revealed the location of [Durden’s] cell phone and not
        [Durden] himself. [Trial counsel] stated that he made
        arguments to the jury about the lack of DNA evidence. On
        cross-examination [trial counsel] stated that because the
        gloves were from Labor Ready, many individuals within the
        city and county had similar gloves—including [trial counsel]
        himself. In [trial counsel’s] opinion, this helped to overcome
        the identification testimony because no other evidence, such
        as the firearm, was found in connection with [Durden].
        Thus, it did not make sense to [trial counsel] to suppress
        the results of the search warrant even if there had been
        reason to do so.

PCRA Court Opinion, 1/10/18, at 3-4 (citations and footnote omitted).




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      Initially, we note that as to each ineffectiveness claim, we are bound by

the PCRA court’s credibility determinations. Reyes-Rodriguez, supra. We

will address each claim separately.

      Durden first claims that trial counsel was ineffective for failing to file a

suppression motion.    The failure to file a suppression motion under some

circumstances may be evidence of ineffectiveness assistance of counsel.

However, if the grounds underpinning that motion are without merit, counsel

will not be deemed ineffective for failing to so move. The defendant must

establish that there was no reasonable basis for not pursuing the suppression

claim and that, if the evidence had been suppressed, there is a reasonable

probability   that   the   verdict    would   have    been    more     favorable.

Commonwealth v. Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016).

      Here, the PCRA court concluded that sufficient probable cause, based

upon witness identification, existed within the four corners of the warrant, and

that trial counsel’s chosen strategy of stressing what was not found during

the search was reasonable. The court explained:


         Within the four corners of the search warrant, the
         magistrate had eyewitness identifications of [Durden] as the
         person who perpetrated the robbery. This was sufficient to
         convince a neutral and detached magistrate that there was
         a fair probability that evidence of the crime would be found
         at [Durden’s] home. The home was located via the address
         connected to [Durden’s] license plate, which was seen
         leaving the store where the robbery occurred on a night two
         months removed from the crime when [Durden] had
         returned to the store. Thus, the strategy preferred by
         [Durden], of seeking suppression of the gloves obtained by

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        a search warrant offered no chance of success substantially
        greater than the strategy pursued by trial counsel.
        Moreover, we do not forget that [trial counsel] believed that
        the paucity of evidence obtained from the search warrant
        aided his argument to the jury that no truly damning
        evidence of the crime was located at [Durden’s] residence.
        The search revealed nothing more than a commonly owned
        pair of gloves. Even if suppression were to have succeeded,
        only one piece of physical evidence would have been
        suppressed and, in doing so, the defense would have been
        deprived of the ability to argue that more damning evidence
        that one might expect to find was not located in connection
        to [Durden]. [Durden] cannot meet the second prong of the
        test for ineffectiveness.

PCRA Court Opinion, 1/10/18, at 8-9 (citation omitted).

     Our review of the record supports the PCRA court’s conclusion that trial

counsel’s chosen trial strategy was reasonable.        Thus, Durden’s first

ineffectiveness claim fails. Johnson, supra.

     The PCRA court next addressed Durden’s claim that trial counsel was

ineffective for failing to obtain phone records that allegedly would have

corroborated his alibi witness’ testimony that he was at another store when

the robbery of the Dollar General occurred.     Once again, the PCRA court

concluded that Durden failed to meet his burden of establishing that trial

counsel’s chosen strategy regarding his alibi was unreasonable. The court

explained:

         To begin, [Durden], at the time of the PCRA hearing, did
        not supply the phone records; however, even if he had, and
        they showed that which [Durden] avers they would show,
        we do not believe they would have been decisive for the
        following reasons. [Trial counsel] opined at the PCRA
        hearing, that while he could not remember whether or not
        [Durden] had asked him to obtain the cell phone records,


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          the cell phone records would have offered little defense
          because they could not have shown that [Durden] was with
          his cell phone. To this we would add that [Durden] was
          identified by the victims. Thus, [trial counsel’s] fears vis-à-
          vis the location of the phone in relation to [Durden] are well
          founded. The phone records would have helped to establish
          where [Durden] was and, perhaps, this would have revealed
          that the phone was nowhere near the robbery. However,
          again, [Durden] might well have handed his phone to
          another person, prior to the robbery, to manufacture an
          alibi. Evidence regarding the location of the phone could
          not have surmounted the eyewitness identifications of
          [Durden] as the robber. There was no substantially greater
          chance of acquittal had trial counsel obtained the phone
          records and attempted to use them to demonstrate
          [Durden’s] alibi. Moreover, the jurors heard from an alibi
          witness, [Durden’s girlfriend], and they clearly did not credit
          her testimony.

PCRA Court Opinion, 1/10/18, at 11-12 (citation omitted). We agree. Thus,

Durden’s second claim of ineffectiveness does not entitle him to relief.

      In his third and final claim of ineffectiveness, Durden asserts that trial

counsel was ineffective for failing to obtain DNA results from the shoelaces

used during the robbery prior to proceeding to trial. Once again, he has failed

to meet his burden. Initially, Durden proffers no evidence that indicates DNA

results were ever obtained, or even if the shoelaces are still available to be

tested.   Claims of trial counsel’s ineffectiveness are not self-proving and

therefore cannot be raised in a vacuum. See generally, Commonwealth v.

Pettus, 424 A.2d 1332 (Pa. 1981); see also Commonwealth v. Clark, 961

A.2d 80, 94 (Pa. 2008) (explaining that, in the absence of a sufficient proffer,

a petitioner’s bare assertions would inappropriately convert an evidentiary

hearing into a “fishing expedition” for possible exculpatory evidence).


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      Moreover, the PCRA court agreed with trial counsel that, “as the

perpetrator wore gloves, it would not be expected that the perpetrator’s DNA

would be found on the shoelaces” and, in fact,” it was not the perpetrator,”

but one of the store employees who was ordered to tie up the other employee

with the shoelaces. PCRA Court Opinion, 1/10/18, at 14. At the PCRA hearing,

trial counsel explained his trial strategy:

            In my opinion, [Durden’s] pretty accurate as far as our
            discussion about the DNA, there was a shoelace that was
            used to tie up the two store clerks. There was possibly
            going to be some testing for DNA. If I recall correctly, as
            we were coming close to when it was likely to go to trial,
            that DNA still hadn’t been tested. They needed to get
            either [Durden’s] DNA or DNA from the clerks to exclude
            it. I explained to [Durden], in my opinion, you know, it
            made sense to go to trial before those results came back
            and instead of him sitting in jail waiting months for that
            to happen, because there’s only three ways it could come
            back, it comes back to him, and then have absolutely no
            defense, it comes back inconclusive, which then I can’t
            make the argument that the DNA is still outstanding,
            which, if I recall correctly, we did try to attack the
            argument of the Commonwealth and evidence they had
            against him, or come back as someone else. I explained
            to [Durden] if it did come back as someone else, he
            would have the ability to file a motion as there is new
            evidence, the DNA results.

N.T., 6/30/17, at 20-21.     According to trial counsel, it was a better trial

strategy to argue that the Commonwealth presented no DNA evidence that

implicated Durden—the actual results may have done so.

      Finally, the PCRA court concluded that, given the overwhelming

evidence of guilt, Durden could not prove prejudice:



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         [M]ultiple eyewitnesses identified [Durden] as the
         perpetrator of the crime. The manager of the Dollar General
         identified [him] based upon his multiple viewings of the
         security footage from the incident. The manager confirmed
         his identification of [Durden] with Mr. Generate. The
         perpetrator had entered the store wearing sunglasses when
         it was dark outside. On a later date, [Durden] whose skin
         tone matched that of the perpetrator, also entered the
         store, at night, wearing sunglasses. Importantly, Ms. Clark
         had described the perpetrator as having distinctive teeth. A
         warrant was procured to obtain photos of [Durden’s] mouth
         and teeth. Ms. Clark then identified that mouth and those
         teeth as belonging to the robber. Ms. Clark was positive of
         this because she had focused on the robber’s mouth as a
         result of the sunglasses he wore.

PCRA Court Opinion, 1/10/18, at 15 (citations omitted). Thus, Durden’s third

ineffectiveness claim fails.

      In sum, because Durden had failed to meet his burden of establishing

the three-part ineffectiveness test, we concur with PCRA counsel’s assessment

of Durden’s claims and permit her to withdraw. In addition, our independent

review of the record reveals no other meritorious issue.       Reed, supra.

We therefore grant PCRA counsel’s motion to withdraw, and affirm the PCRA

court’s order denying post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2018

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