J-S59020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

HISHAMU CURRY,

                         Appellant                  No. 3531 EDA 2015


              Appeal from the PCRA Order of November 4, 2015
               In the Court of Common Pleas of Lehigh County
               Criminal Division at No(s): CP-39-0000637-2011


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                            FILED October 5, 2016

      Appellant, Hishamu Curry, appeals from the order entered on

November 4, 2015, dismissing his first petition filed pursuant to the Post

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

      The PCRA court summarized the facts and procedural history of this

case as follows:

        [Appellant] was found guilty after a jury trial of robbery (3
        counts), attempted criminal homicide, aggravated assault
        (two counts), and criminal conspiracy to commit robbery.
        [A]ppellant and two confederates, Isaah Sampson and
        Edward Maye, robbed the KNBT Bank in Emmaus at
        gunpoint. During the robbery, Edward Maye assaulted the
        assistant manager of the bank with a firearm, and in their
        flight to avoid apprehension, Isaah Sampson fired his
        weapon multiple times at Officer Bryfogle of the Emmaus
        Police Department. Multiple bullets struck Officer Bryfogle’s
        cruiser, but he escaped uninjured.

                            *        *          *


*Former Justice specially assigned to the Superior Court.
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        At the conclusion of [a] sentencing hearing, [A]ppellant
        received a total sentence of not less than thirty (30) years
        nor more than sixty (60) years in a state correctional
        institution.

                             *            *             *

        On October 4, 2013, the judgment of sentence was affirmed
        by [this] Court. A petition for allowance of appeal was
        denied by the Supreme Court on April 4, 2014. On July 10,
        2014, [A]ppellant filed a pro se [PCRA] petition. Attorney
        Robert Long was appointed to represent [A]ppellant and
        filed an amended PCRA petition on May 8, 2015.

        A PCRA hearing was held on August 24, 2015.             On
        November 4, 2015, [A]ppellant’s PCRA petition was denied.
        A notice of appeal was filed on November 24, 2015.
        Thereafter, [the PCRA court] directed [A]ppellant to comply
        with Pa.R.A.P. 1925(b) and [he did so] on December 1,
        2015[.] [The PCRA court issued an opinion pursuant to
        Pa.R.A.P. 1925(a) on November 4, 2015.]

PCRA Court Opinion, 11/4/2015, at 1-3 (superfluous capitalization and

footnotes omitted).

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

        Did the [PCRA] court err in finding that [trial] counsel was
        not ineffective for:

        (A)   Failing to investigate and or call alibi witnesses;

        (B)   Coerc[ing]    [Appellant]   into   unknowingly      and
              involuntarily waiving his right to testify, specifically
              because he had an alibi;

        (C)   Fail[ing] to       review       or   discuss   discovery   with
              [Appellant];

        (D)   Fail[ing] to investigate the subscriber information on
              the Sanyo [cellular telephone];




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          (E)   Failing to discuss and get the agreement of
                [Appellant] to stipulate to Trooper Tempinski’s report;

          (F)   Failing to raise the issue in post sentence motions that
                the verdict was against the weight of the evidence.

Appellant’s Brief at 4 (complete capitalization omitted).

      All of Appellant’s issues allege that trial counsel was ineffective and we

will examine them together.      In his first sub-issue, Appellant asserts trial

counsel was ineffective for failing “to investigate and/or call […] Barbara

Johnson and Carisma Curry [as] potential alibi witnesses.” Id. at 8. Next,

Appellant posits that trial counsel “coerced [him] into not testifying by telling

him he would be convicted if he did so[,]” which, in turn, “prevented

[Appellant] from establishing the viable defense of alibi.” Id. at 9. In his

third sub-issue, Appellant contends that trial counsel was ineffective for

failing to review or discuss discovery with him.        Id.   In his next issue

presented, Appellant maintains that, despite his trial counsel’s testimony at

the PCRA hearing that Appellant claimed ownership of a Sanyo cellular

telephone recovered near him at the time of his arrest, trial counsel was

ineffective for failing to “investigate the subscriber information to the

phone.”    Id. at 10. In sub-issue (E), Appellant argues trial counsel was

ineffective for stipulating to the entry of a police report into evidence,

because Appellant had a constitutional right to confront witnesses against

him. Id. at 9-10. In his final contention, Appellant avers that trial counsel

rendered ineffective assistance by failing to file a post-sentence motion

alleging that the verdict was against the weight of the evidence. Id. at 11-


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12. More specifically, Appellant argues that a customer, four bank tellers,

and three police officers could not identify him at trial. Id.

      In reviewing the denial of PCRA relief,

        we examine whether the PCRA court's determination is
        supported by the record and free of legal error. The scope
        of review is limited to the findings of the PCRA court and the
        evidence of record, viewed in the light most favorable to the
        prevailing party at the trial level. It is well-settled that a
        PCRA court's credibility determinations are binding upon an
        appellate court so long as they are supported by the record.
        However, this Court reviews the PCRA court's legal
        conclusions de novo.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (internal

citations and quotations omitted).

      To plead and prove ineffective assistance of counsel, a petitioner must

establish:

        (1) that the underlying issue has arguable merit; (2)
        counsel's actions lacked an objective reasonable basis; and
        (3) actual prejudice resulted from counsel's act or failure to
        act. The failure to meet any of these aspects of the
        ineffectiveness test results in the claim failing.

        Arguable merit exists when the factual statements are
        accurate and could establish cause for relief. Whether the
        facts rise to the level of arguable merit is a legal
        determination. In considering whether counsel acted
        reasonably, we look to whether no competent counsel would
        have chosen that action or inaction, or, [whether] the
        alternative [course of conduct], not chosen, offered a
        significantly greater potential chance of success. Counsel's
        decisions will be considered reasonable if they effectuated
        his client's interests. We do not employ a hindsight analysis
        in comparing trial counsel's actions with other efforts he
        may have taken. Lastly, prejudice exists where there is a
        reasonable probability that, but for counsel's errors, the


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        result of the proceeding would have been different. This
        probability is sufficient when it undermines confidence in
        the outcome of the proceeding. Counsel is presumed to
        have rendered constitutionally effective representation.

Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa. Super. 2015) (internal

citations and quotations omitted).

      In this case, Appellant and trial counsel testified at the PCRA hearing.

The PCRA court found trial counsel’s testimony more credible. As there is

evidentiary   support     for   this   assessment,   we   will   not   usurp   that

determination.

      With regard to the claims that counsel was ineffective for failing to

investigate alibi witnesses, coercing Appellant into not testifying, and not

procuring the records for the Sanyo cellular telephone found near Appellant

at the time of his arrest, the PCRA court determined that there was no merit

to these claims. More specifically, the PCRA court found that, prior to trial,

Appellant admitted to his trial attorney he committed the crimes and owned

the cellular telephone.    Thus, there were no alibi witnesses to investigate

and it would have been futile to acquire the cellular telephone subscriber

records. Moreover, Appellant did not present any evidence that trial counsel

interfered with his right to testify and the trial court’s colloquy regarding

such right “demonstrated just the opposite.”              PCRA Court Opinion,

11/4/2015, at 7. Upon review, we agree. There is no merit to these claims.

      Next, the PCRA court determined that trial counsel had a reasonable

strategy in stipulating to the entry of a firearm expert’s report into evidence.

The PCRA court found the stipulation was reasonable, because there was no

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evidence that Appellant possessed the firearms and Appellant’s defense at

trial was that he was not present for the robbery. The PCRA court noted,

“[i]t would have been foolhardy to contest the firearms evidence or [argue]

that the bullets recovered were not fired [] from the recovered firearms.”

Id. at 9 (footnote omitted). We agree with the PCRA court’s assessment.

There was no reasonable strategy that called for confronting the author of

the firearm report.

      In addition to the PCRA court’s assessment, we note that Appellant

failed to establish prejudice regarding his issues pertaining to cellular

telephone records, discovery, or stipulating to the firearm expert’s report.

Appellant does not point to evidence that would have been helpful to his

defense or changed the outcome of trial.

      Finally, we examine Appellant’s claim that counsel was ineffective for

failing to file a post-sentence motion challenging the weight of the evidence.

Regarding a weight of the evidence claim:

        A motion for a new trial based on a claim that the verdict is
        against the weight of the evidence is addressed to the
        discretion of the trial court. A new trial should not be
        granted because of a mere conflict in the testimony or
        because the judge on the same facts would have arrived at
        a difference conclusion. Rather, the role of the trial judge is
        to determine that notwithstanding all the facts, certain facts
        are so clearly of greater weight that to ignore them or to
        give them equal weight with all the facts is to deny justice.
        It has often been stated that a new trial should be awarded
        when the jury’s verdict is so contrary to the evidence as to
        shock one’s sense of justice and the award of a new trial is
        imperative so that right may be given another opportunity
        to prevail.

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J-S59020-16


Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (internal

quotations and citations omitted).

    Initially, we note that on October 4, 2013, we affirmed Appellant’s

judgment of sentence by judgment order based on the trial court’s opinion.

See Commonwealth v. Curry, 2013 WL 11253394 (Pa. Super. 2013)

(unpublished).    Our   Supreme       Court denied further      review.       See

Commonwealth v. Curry, 87 A.3d 874 (Pa. 2014).               Upon review of the

trial court’s decision, we reject Appellant’s suggestion that the verdict was

against the weight of the evidence because witnesses in the bank, at the

time of the robbery, could not identify Appellant.         The robbers were all

masked during the commission of the crime.           Police pursued the men as

they escaped in a vehicle. All three men, however, eventually fled from the

vehicle and ran in different directions. Police eventually cornered Appellant

driving another vehicle. When police removed Appellant from that vehicle,

the Sanyo cellular telephone flew out of his lap or a pocket.       Police had to

use force to handcuff and arrest Appellant. When Appellant finally relented,

he admitted to police that they caught him.         At trial, the Commonwealth

presented 395 text messages from the recovered Sanyo cellular telephone to

show communications between all three conspirators in the planning of, and

subsequent flight from, the robbery.        In his defense at trial and on direct

appeal,   Appellant   argued   that   the    Commonwealth     did   not   properly

authenticate the text messages before the trial court entered them into


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evidence. The trial court ultimately concluded, “[A]ppellant’s possession of

the Sanyo cell[ular] [tele]phone, the exchange of text messages between

[A]ppellant and cell[ular] [tele]phones either seized from a conspirator or

the getaway car, and the substance of the text messages, all provide[d] the

threshold necessary for authentication.” Trial Court Opinion, 11/29/2012, at

12.


      In denying relief on Appellant’s weight of the evidence in the context

of an ineffective assistance of counsel claim, the PCRA court concluded the

claim was meritless:

        It is highly unlikely that anyone would be shocked by the
        verdict in this case. Counsel’s opinion was that “a weight of
        the evidence claim had zero chance of going forward.” As a
        result, he pursued the authentication issue, which in light of
        [prevailing law], was more likely to prevail. In other words,
        he engaged in the “process of ‘winnowing out weaker
        arguments on appeal.’”

PCRA Court Opinion, 11/4/2015, at 11 (footnotes and citations omitted).

      We agree that there was no merit and discern no abuse of discretion in

denying Appellant’s ineffective assistance of counsel claim regarding the

weight of the evidence. Moreover, we recognize that the PCRA judge also

presided over the jury trial in this matter. Because he found that a weight of

the evidence claim would not have prevailed, Appellant has failed to

demonstrate that he was prejudiced or that the outcome of his trial would

have been different if this claim were raised.          Hence, we conclude

Appellant’s final contention fails.



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J-S59020-16



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2016




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