J-S48005-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RICKY ROUSE

                        Appellant                   No. 682 WDA 2015


                Appeal from the PCRA Order April 8, 2015
           In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0004190-2009


BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J:                       FILED SEPTEMBER 19, 2016

     Ricky Rouse appeals pro se from the April 8, 2015 order denying his

PCRA petition. We affirm.

     We previously set forth the relevant facts:

     On February 24, 2009, Antoine Cooper (“the victim”) was shot at
     approximately 4:30 in the afternoon in Northview Heights, a
     neighborhood in the North Side of the city of Pittsburgh. The
     victim suffered multiple gunshot wounds with the fatal wound
     being a single shot to the head. The Commonwealth’s theory of
     the case was that [A]ppellant fired the fatal bullet in retaliation
     for an earlier shooting and that [A]ppellant was seen leaving the
     crime scene in a vehicle rented by [Appellant’s] co-defendant,
     Damone Porter.

     At the conclusion of trial, [A]ppellant was found guilty of first
     degree murder, carrying a firearm without a license, and
     conspiracy. On December 21, 2010, [A]ppellant was sentenced
     to life in prison.
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Commonwealth v. Rouse, 60 A.3d 559 (Pa.Super. 2012) at 1-2

(unpublished memorandum, citations and footnotes omitted), appeal denied,

63 A.3d 776 (Pa. 2013). Appellant was identified by a UPS driver, who saw

him fleeing the scene of the crime with a firearm. We affirmed Appellant’s

judgment of sentence and the Supreme Court denied further review. Id.

       On January 28, 2014, Appellant filed a timely pro se PCRA petition

raising five claims and requesting the appointment of counsel.    The court

appointed Ryan H. James, Esquire. Mr. James subsequently filed a motion

to withdraw and authored a Turner/Finley1 no-merit letter.       Before the

court resolved counsel’s motion to withdraw, the court granted co-defendant

Porter a hearing pursuant to his own PCRA petition.      The court ordered

Appellant’s PCRA counsel to review Porter’s petition to determine whether

any issues raised by Porter were applicable in Appellant’s matter.     In a

second letter, counsel determined those issues did not implicate Appellant’s

case, and the court agreed.

       In the meantime, Appellant filed a letter outlining his response to

counsel’s no-merit letter, and raised additional claims. The court issued an

order on March 11, 2015, disposing of some of Appellant’s claims and

directing counsel to evaluate three additional issues contained in the

____________________________________________


1
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).



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response. Counsel addressed those issues, and on April 8, 2015, the court

issued an order adopting counsel’s analysis, dismissing Appellant’s PCRA

petition without a hearing, and granting counsel’s motion to withdraw.

     Appellant filed a timely pro se notice of appeal and complied with the

court’s order to file a Rule 1925(b) concise statement of errors complained

of on appeal. The court filed a Rule 1925(a) opinion, and this matter is now

ready for our consideration.

        Appellant raised five issues for our review:

     1. Did the trial court erred [sic] when it denied Appellant’s PCRA
        petition where it was clear that trial counsel was ineffective
        for failing to investigate the crime scene to properly
        determine whether the Commonwealth’s key witness could
        have testified truthfully that he saw Appellant on an angle at
        a considerable distance away, thus, violating his Sixth
        Amendment Right to effective assistance pursuant to
        Wiggins v. Smith, 539 U.S. 510 (2003)?

     2. Did the prosecutor abuse its authority, thus committing a
        miscarriage of justice, when it allowed testimony from the
        Commonwealth witness (Barbara Geraci) to testify falsely to a
        fact that the name of the hotel room (room in which alleged
        getaway vehicle keys were recovered) was in Appellant’s
        name. Where evidence to the contrary was instituted, thus
        violating Appellant’s Sixth and Fourteenth Amendment right
        under the [guise] of prosecutor misconduct?

     3. Was counsel (direct appeal) ineffective for failing to raise a
        proper “weight of the evidence” thus, causing this claim to be
        waived at the stage guaranteed pursuant to Pa.Const.Article
        I, Section 9?

     4. Pursuant to Commonwealth v. Walker, 92 A.3d 766 (Pa.
        2014) does Appellant have a guaranteed right to present
        evidence of an expert witness by compulsory process of the
        Sixth Amendment and Pa.Const.Article I, Section 9 to the

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         issue whether there was an misidentification of Appellant via
         cross-racial and lapse in time between the crime and the trial,
         thus, violating Appellant’s right to due process and equal
         protection of the Fourteenth Amendment?

      5. Pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012) was
         PCRA counsel ineffective for failing to raise properly preserved
         claim of “newly discovered evidence” of an affidavit of Eugene
         Mackey pursuant to Commonwealth v. Abu-Jamal, 833
         A.2d 719 (Pa. 2003)?

Appellant’s brief at 4 (unnecessary capitalization omitted).

      We review PCRA appeals “in the light most favorable to the prevailing

party at the PCRA level.” Commonwealth v. Steckley, 128 A.3d 826, 831

(Pa.Super. 2015) (citation omitted). Our “review is limited to the finding of

the PCRA court and the evidence of record [and] we do not disturb a PCRA

court’s ruling if it is supported by the evidence of record and is free of legal

error.” Id. As such, “we grant great deference to the factual findings of the

PCRA court and will not disturb those findings unless they have no support in

the record.”    Id.    Nevertheless, “we afford no such deference to its legal

conclusions.”    Id.     Where the petitioner raises questions of law “our

standard of review is de novo and our scope of review is plenary.” Id.

      Appellant first contends that the trial court erred in denying his PCRA

petition since the evidence of record supports a finding that trial counsel was

ineffective for failing to investigate the crime scene in preparation for trial.

Appellant has raised this issue for the first time on appeal. It is axiomatic

that “issues not raised in the lower court are waived and cannot be raised for



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the first time on appeal.” Pa.R.A.P. 302(a); Commonwealth v. Fletcher,

986 A.2d 759, 778 (Pa. 2009) (finding waiver where appellant did not

present claim in a PCRA petition). Therefore, this claim is waived.

      We consider Appellant’s second, third, and fifth claims together, as

they all raise claims of counsel ineffectiveness. Pennsylvania courts utilize a

three-factor test in reviewing the effectiveness of counsel.      In order to

obtain relief, the petitioner must prove:

      (1) the underlying claim has arguable merit; (2) no reasonable
      basis existed for counsel’s actions or failure to act; and (3)
      petitioner suffered prejudice as a result of counsel’s error such
      that there is a reasonable probability that the result of the
      proceeding would have been different absent such error.

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa.Super. 2015) (citation

omitted). Failure to satisfy any prong of this test requires rejection of the

claim. Id. Furthermore, “counsel is presumed to be effective, and a PCRA

petitioner bears the burden of pleading and proving each of the three factors

by a preponderance of the evidence.” Id.

      Appellant first argues that the Commonwealth committed prosecutorial

misconduct by suborning perjury from its witness, Barbara Geraci. Claims of

prosecutorial misconduct sound in ineffectiveness of counsel for purposes of

the PCRA.   Commonwealth v. Tedford, 960 A.2d 1 (Pa. 2008) (holding

where counsel fails to object to prosecutor misconduct at trial, claim must be

argued as ineffective assistance of counsel). Appellant asserts that evidence

adduced at trial proved that the prosecutor knew Appellant was not

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associated with a hotel room where Ms. Geraci found incriminating evidence,

and yet permitted her to testify that Appellant was connected to it. Thus,

Appellant’s claim assails trial counsel’s failure to object to this alleged

misconduct.

      At trial, the Commonwealth offered the testimony of Ms. Geraci, a

hotel housekeeper, who recovered keys to the getaway vehicle in a room

rented by Porter. When Ms. Geraci was first questioned regarding the renter

of the room, she replied “I believe it was rented to Damone Porter and

[Appellant].” N.T. Trial, 10/1/10, at 313. Trial counsel did not object to Ms.

Geraci’s statement. The Commonwealth immediately thereafter offered into

evidence, without objection, a receipt for that room indicating that

Appellant’s co-defendant, and not Appellant, had rented the room.      Id. at

314. Appellant maintains the prosecutor elicited Ms. Geraci’s initial response

to associate him with incriminating evidence, despite possessing the receipt,

which clearly indicated only Porter rented the room.        The PCRA court

determined this issue lacked merit. We agree.

      The PCRA court found the testimony of the housekeeper was “real and

genuine.” Order, 3/11/15, at unnumbered 2. It notes that Appellant offered

no proof that the housekeeper, a neutral witness, fabricated her testimony.

Id. She merely stated that it was her subjective belief that Appellant and

Porter both rented the room. That the Commonwealth immediately offered

a receipt implicating Porter as the renter of the room demonstrated that it

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quickly dispelled any falsity associated with Ms. Geraci’s statement that she

thought Appellant was one of the renters.       Without proof to establish the

Commonwealth engaged in misconduct, trial counsel cannot be found

ineffective for failing to object.   Therefore, we find this claim is devoid of

merit, and hence, it fails.

       Appellant next challenges direct appeal counsel’s failure to properly

preserve a weight-of-the-evidence claim.        On appeal, this Court found

counsel had conflated a weight claim with a sufficiency claim, and had

thereby waived the issue. Rouse, supra, at 15. Appellant maintains that

the verdict was against the weight of the evidence, and thus, counsel was

ineffective for failing to preserve his claim.      Since we find Appellant’s

underlying challenge to the weight of the evidence to be without arguable

merit, direct appeal counsel was not ineffective for failing to preserve the

issue. See Perry, supra.

      When we review a weight-of-the-evidence challenge, we do not

actually examine the underlying question; instead, we examine the trial

court’s exercise of discretion in resolving the challenge. Commonwealth v.

Leatherby, 116 A.3d 73, 82 (Pa.Super. 2015).           This type of review is

necessitated by the fact that the trial judge heard and saw the evidence

presented. Id. Moreover, “One of the least assailable reasons for granting

or denying a new trial is the lower court’s conviction that the verdict was or




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was not against the weight of the evidence and that a new trial should be

granted in the interest of justice.” Id.

      A new trial is warranted in this context only when the verdict is “so

contrary to the evidence that it shocks one’s sense of justice and the award

of a new trial is imperative so that right may be given another opportunity to

prevail.”   Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014).          It is

essential to note, “The finder of fact . . . exclusively weighs the evidence,

assesses the credibility of witnesses, and may choose to believe all, part, or

none of the evidence.” Commonwealth v. Konias, 136 A.3d 1014, 1023

(Pa.Super. 2016) (citation omitted).

      The trial court denied Appellant’s post-sentence motion challenging the

weight of the evidence. The PCRA court, who also presided at trial, reviewed

Appellant’s weight-of-the-evidence claim and determined the argument was

without merit.    The PCRA court noted that this Court found sufficient

evidence to convict Appellant and that the testimony identifying Appellant

near the crime scene, and in possession of a firearm, immediately after

shots were fired would not suggest the verdict should be overturned. Upon

review of the record, we discern no abuse of discretion in the denial of

Appellant’s weight claim. We concur with the PCRA court that the issue is

meritless. Ample circumstantial evidence supported Appellant’s conviction,

and he does not otherwise highlight evidence that was purportedly weighed

improperly. Thus, no relief is due.

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       Appellant next argues that PCRA counsel was ineffective for failing to

assert a claim arising from “newly discovered evidence.” Appellant’s brief at

23. As this issue was raised in Appellant’s Pa.R.Crim.P. 907 response, and

included in his Pa.R.A.P. 1925(b) statement, it is properly before us.2    Cf.

Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009) (challenge to

PCRA counsel’s ineffectiveness was not preserved on appeal since it was not

raised during trial court proceedings in response to Pa.R.C.P. 907 notice or

no merit letter).

       We note, however, although Appellant characterized this claim as

“newly discovered evidence,” he concedes he was aware of the evidence at

trial. Appellant’s brief at 24. Appellant claims PCRA counsel was ineffective

for failing to contact Eugene Mackey to persuade him to testify, and to

confirm that he was willing and able to provide an alibi defense. Specifically,

Appellant contends that he asked PCRA counsel to use a purported affidavit

created by Eugene Caldwell to convince Mackey to offer alibi testimony on

Appellant’s behalf. According to Appellant, Mackey was unwilling to testify



____________________________________________


2
   Appellant relies on Martinez v. Ryan, 132 S.Ct. 1309 (2012), for the
proposition that ineffective assistance of counsel during collateral review
may establish cause for a prisoner’s procedural default of a claim of
ineffective assistance at trial. However, as Martinez relates to jurisdictional
prerequisites for ineffectiveness claims before a federal habeas proceeding,
it is inapplicable here.



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without assurance that Caldwell would corroborate his account of Appellant’s

whereabouts on the day in question.

      Counsel has a general duty to undertake reasonable investigations or

make reasonable decisions that render particular investigations unnecessary.

Commonwealth v. Mitchell, 105 A.3d 1257, 1276 (Pa. 2014) (citation

omitted).   “The duty to investigate, of course, may include a duty to

interview certain potential witnesses; and a prejudicial failure to fulfill this

duty, unless pursuant to a reasonable strategic decision, may lead to a

finding of ineffective assistance.”     Id.      However, counsel’s “failure to

interview a particular witness prior to trial does not constitute ineffective

assistance of counsel unless there is some showing that such an interview

would have been beneficial to the defense under the facts and circumstances

of the case.” Id.

      The PCRA court adopted PCRA counsel’s Turner/Finley analysis in

rejecting this claim.     Counsel represented that, during a series of

communications with Appellant regarding Mackey, Appellant acknowledged

Mackey’s    reluctance   to   provide    alibi   testimony   without   Caldwell’s

corroboration. However, Appellant failed to produce Caldwell’s affidavit, and

PCRA counsel attested that the affidavit did not emerge in discovery.

Consequently, PCRA counsel did not contact Mackey since “he appears to be

an alibi witness who does not want to provide an alibi,” confirming

Appellant’s assessment in a prior communiqué, that “[Mackey] just doesn’t

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want to get involved with this situation.”      Letter from PCRA Counsel to

Appellant, 5/12/14, at 2.        PCRA counsel concluded, and the PCRA court

agreed, that Mackey’s participation would not benefit Appellant’s defense,

and thus, the issue lacked merit. We agree.

      Although Appellant continues to maintain that Caldwell generated an

affidavit attesting to Appellant’s whereabouts during the commission of the

crime, the record contains no such affidavit.        Furthermore, Appellant

informed PCRA counsel of Mackey’s unwillingness to testify, and has offered

no argument that Mackey would be willing to testify even if an affidavit, or

other statement from Caldwell, was produced. Commonwealth v. Pander,

100 A.3d 626, 639 (Pa.Super. 2014) (en banc) (citation omitted) (finding

counsel will not be deemed ineffective for failing to investigate a witness or

call a witness to testify unless the PCRA petitioner demonstrates, inter alia,

that the witness was willing to testify for the defense). Appellant simply has

made no showing that contacting Mackey would have been beneficial to the

defense. Mitchell, supra. Thus, this claim also fails.

      As a corollary matter, Appellant appended an “unsworn declaration,”

which we will treat as a witness certification, to his PCRA petition regarding

Mackey’s supposed testimony at the PCRA hearing. Pursuant to Pa.R.Crim.P.

902(A)(15), Appellant is required to attach a signed certification as to each

witness he intends to offer when requesting an evidentiary hearing.      That

rule reads, in pertinent part:

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     A petition for post-conviction collateral relief shall bear the
     caption, number, and court term of the case or cases in which
     relief is requested and shall contain substantially the following
     information . . . (15) if applicable, any request for an evidentiary
     hearing. The request for an evidentiary hearing shall include a
     signed certification as to each intended witness, stating the
     witness’s name, address, and date of birth, and the substance of
     the witness’s testimony.         Any documents material to the
     witness’s testimony shall also be included in the petition[.]

Pa.R.Crim.P. 902(A)(15). Appellant’s attached certification reads:

     Feb. 2009 (I don’t remember the exact date, but I only fixed a
     flat for “Uey” once). Eugene “Uey” [Caldwell] called me (Eugene
     Mackey) and told me he was almost back on the Northside he
     was coming from getting a new tire. He said his car was parked
     on a side street behind Dave’s Barbershop, an that I should
     meet him down there. I left Northview Heights at about 3:30
     [p.m.] I remember [because] Northview Elementary kids were
     still walking home from school. Once I got to Uey’s car, Uey,
     [Appellant] and a couple other young dudes were sitting on
     some steps smoking weed and busting jokes. I remember
     clearly for a fact [Appellant] was sitting there the whole time,
     from the time I got down there till the time I got finish an we all
     left. Once I got finish, we drove down Manchester to McDonald’s
     (Me, [Appellant], Uey and another young dude). Right after that
     they took me up to Northview Heights. I’m not sure of the time
     but I do recall it was dark outside now

     Appellant’s witness certification is unsigned, and fails to include the

witness’s date of birth or address as required by Rule 902(A)(15). Although

it purports to set forth alibi testimony by Mackey, it merely established

Appellant’s whereabouts on some day in in February 2009. Thus, Appellant

has failed to demonstrate prejudice due to counsel’s decision not to contact

Mackey.   “Prejudice is established if there is a reasonable probability that,

but for counsel’s errors, the result of the proceeding would have been



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different.”   Pander, supra at 631 (quoting Commonwealth v. Stewart,

84 A.3d 701, 706-07 (Pa.Super. 2013) (en banc). Therefore, PCRA counsel

cannot be ineffective for failing to call Mackey as an alibi witness. Perry,

supra.

       We now turn to Appellant’s fourth issue, wherein Appellant contends

the PCRA court erred in not granting him a new trial to offer expert

testimony regarding the unreliability of eyewitness identification pursuant to

Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014).                     The PCRA court

found this issue meritless since the Walker decision has not been held to

apply retroactively.3 We agree.

       In Walker, our Supreme Court reviewed extensive scientific research

and observed the trend among federal and state courts, to overturn the per

se   ban      on   expert     testimony        regarding   eyewitness   identification.

Nonetheless, the Supreme Court concluded the admissibility of such

testimony in criminal proceedings in Pennsylvania should be left to the

discretion of the trial court. Walker, supra, at 792-793. The Court did not
____________________________________________


3
   Appellant originally raised this issue as an ineffectiveness claim against
direct appeal counsel in his response to PCRA counsel’s motion to withdraw.
Hence, the PCRA court analyzed this issue under that rubric. Appellant
altered this claim to its present formulation for the purposes of his Rule
1925(b) statement and his brief. We refrain from finding waiver here as we
can liberally construe Appellant’s filed materials to encompass his current
claim, and doing so does not otherwise affect our disposition.           See
Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014) (“courts may
liberally construe materials filed by a pro se litigant[.]”).



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express whether Walker should apply retroactively.       Rather, it indicated

that “the admission of expert testimony regarding eyewitness identification

is no longer per se impermissible[.]” Id. at 793 (emphasis added).

        Neither the Supreme Court, nor any court of this Commonwealth, has

found Walker to apply retroactively to cases on collateral review, and we

decline to do so here.     The Walker court did not base its decision on

constitutional jurisprudence, and the rule does not implicate a right so

fundamental to the fairness of the criminal proceeding as to warrant

retroactive effect. See Teague v. Lane, 489 U.S. 288 (1989) (plurality);

Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011); Commonwealth v.

Washington, 2016 WL 3909088 (Pa. 2016).

        Appellant’s trial began in September 2010, and the Pennsylvania

Supreme Court denied his petition for allowance of appeal on February 13,

2013.     Thus, Appellant’s judgment of sentence became final on Tuesday,

May 14, 2013, when the ninety-day period to seek certiorari with the United

States Supreme Court expired. As Walker was decided May 28, 2014, it is

not applicable to Appellant’s criminal proceedings, and his position does not

afford him relief.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2016




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