J-S95015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

DARNELL RAY LEWIS, JR.

                         Appellant                 No. 1377 EDA 2016


              Appeal from the PCRA Order Entered April 4, 2016
               In the Court of Common Pleas of Lehigh County
              Criminal Division at No: CP-39-CR-0005370-2012


BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                        FILED MARCH 21, 2017

     Appellant, Darnell Ray Lewis, Jr., appeals pro se from the April 4, 2016

order dismissing his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

     The underlying facts are as follows:

           On the morning of October 18, 2011, Barbara Hausknect
     [(“Hausknect”)] left her home in Allentown, Pennsylvania and
     travelled by foot to the Taco Bell located on Route 145,
     Whitehall, Lehigh County, Pennsylvania to get her paycheck.
     Hausknect was with her friend, Jeremiah “J.J.” Carasquilla
     (“Carasquilla”). From Taco Bell, the two walked further north on
     Route 145 to the Walmart Superstore. The two shopped at
     Walmart for approximately 30 to 45 minutes. While there,
     Hausknect selected a few items and proceeded to the checkout
     lane. There, she signed over her paycheck to pay for her
     selected items and obtained the remainder of the money owed to
     her. Hausknect put the additional money, totaling approximately
     $500[.00], into her black wristlet wallet.       Hausknect and
     Carasquilla exited through the doors and walked to their left.
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           While speaking to her friend, Hausknect noticed
     [Appellant] pacing nearby and [Ferante Troutman (“Troutman”)]
     approximately [five] feet away.      The individuals made her
     nervous and they continued to walk in front of Hausknect and
     Carasquilla. [Appellant], wearing a red long-sleeved shirt, gray
     sweatshirt, jeans[,] and a black hat, approached Hausknect and
     asked her for a cigarette. Hausknect replied that she did not
     have one. [Appellant] then asked for a lighter and Hausknect
     handed Carasquilla matches to give to [Appellant]. [Appellant]
     and Carasquilla were now behind Hausknect. [Appellant] then
     approached Hausknect from behind and asked for her money.
     She replied “Hell, no” and continued to walk away. [Appellant]
     then asked her for her wallet, and she again replied, “No.”

            After Hausknect refused to give [Appellant] the wallet,
     [Appellant] pulled out a gun and pointed it at her. [Appellant]
     grabbed at Hausknect and tried to take her wallet from her left
     hand. Hausknect struggled with [Appellant]. As Hausknect
     attempted to run away from [Appellant], she was shot directly in
     her back.     After she fell to the ground, [Troutman] held
     Hausknect down and [Appellant] hit her in the mouth with the
     gun, cutting her below her nose and damaging her teeth. The
     individuals got her wallet and got into a silver or blue vehicle.
     […]

           Immediately, people from nearby stores came to
     Hausknect’s aid.    They applied pressure to her wound and
     attempted to calm her down. At approximately 12:30 p.m.,
     members of the Whitehall Township Police Department arrived
     on scene. Patrolman Derrick Williams observed several people
     flagging him down and found [] Hausknect lying on the ground.
     Patrolman Williams spoke to the victim and attempted to get a
     description of the perpetrator(s) and the vehicle involved.
     Carasquilla, who had initially run when [Appellant] pulled out the
     gun, returned to Hausknect’s location and related that the two
     black males involved ran to a blue vehicle and fled the area.
     Patrolman Williams observed blood pulsing out of the victim’s
     back and blood in her mouth area. He directed her to stop
     attempting to move and determined that she was traumatized
     and in shock. [Hausknect] ultimately left by ambulance and was
     taken to Lehigh Valley Hospital for immediate surgery. During
     the surgery, a bullet was retrieved from [Hausknect]’s back and
     was taken into evidence.



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                                   [***]

           On October 18, 2011, [Tymesha] McKenzie [(“McKenzie”),
     Appellant’s co-defendant,] received a phone call from [Appellant]
     and Troutman, asking her to give them a ride. She and her then
     [two] year old son picked the two men up in Allentown and
     proceeded to the Walmart in Whitehall. She was driving a blue
     Chevrolet Cobalt bearing a license plate from the State of North
     Carolina. [Appellant] was seated in the front passenger seat and
     Troutman and the minor child were in the back seat. McKenzie
     parked her vehicle in the parking lot while Troutman and
     [Appellant] went inside the Walmart. [Appellant] was wearing a
     red shirt and Troutman was wearing a gray shirt.

           Shortly thereafter, the two men emerged from the
     Walmart, without any bags or packages.            They reentered
     McKenzie’s vehicle. [Appellant] took out a silver “cowboy style”
     gun, placed it on his lap, and instructed McKenzie to drive. One
     of the men instructed her to stop the vehicle when they noticed
     Hausknect walking in the parking lot.            [Appellant], still
     possessing the gun, walked in Hausknect’s direction, with
     Troutman a small distance behind [Appellant].            McKenzie
     watched their interaction with Hausknect from the side window
     of her vehicle. She saw [Appellant] point the gun at Hausknect
     and saw her fall, although she did not actually hear any shots.

           Once Hausknect fell to the ground, McKenzie saw
     Troutman take her wallet and both men returned to McKenzie’s
     vehicle. When McKenzie asked [Appellant] if he shot Hausknect,
     [Appellant] replied that he had to because she wasn’t going to
     give him her wallet. McKenzie, Troutman, and [Appellant] left
     the area. While driving back to Allentown, [Appellant] removed
     the money from the [wallet] and threw the wallet out[of] the
     window.

                                   [***]

            Dr. [Michael] Badellino testified that the area where
     [Hausknect] was shot was a critical part of the body in that it
     receives secretions of the pancreas and processes bile from the
     liver.




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Commonwealth v. Lewis, 2968 EDA 2013 (Pa. Super. Filed August 13,

2014), unpublished memorandum at 1-4 (quoting Trial Court Opinion,

11/5/13, at 3-7).

       On January 5, 2012, the Commonwealth charged Appellant with

attempted homicide, robbery, aggravated assault, theft by unlawful taking,

receiving stolen property, and conspiracy.1 A bench trial commenced on July

29, 2013, and the trial court found Appellant guilty of all charges on July 31,

2013. On September 9, 2013, the trial court imposed an aggregate thirty to

sixty years of incarceration. This Court affirmed the judgment of sentence

on August 13, 2014.          See id.     Our Supreme Court denied allowance of

appeal on December 16, 2014.

       Appellant filed a timely pro se PCRA petition on October 8, 2015. The

PCRA court appointed counsel on October 12, 2015. On February 22, 2016,

counsel filed a no merit letter and petition to withdraw pursuant to

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).           On February 29,

2016, the PCRA court filed a notice of intent to dismiss Appellant’s petition

without a hearing, pursuant to Pa.R.Crim.P. 907.         Appellant responded to

the Rule 907 notice on March 21, 2016. On April 4, 2016, the PCRA court


____________________________________________


1
    18 Pa.C.S.A. §§ 901, 2501, 3701, 2702, 3921, 3925, and 903,
respectively.



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entered an order denying Appellant’s petition and granting counsel’s petition

to withdraw. This timely pro se appeal followed.

       Appellant raises six assertions of error:

       1. Counsel was ineffective where he failed to obtain an expert
          witness concerning eyewitness identification.

       2. Counsel was ineffective where he failed to present the desired
          defense requested by [Appellant].

       3. The trial court was erroneous in waiving [Appellant’s]
          sufficiency of the evidence claim previously litigated [sic].

       4. [Appellant] argues that the evidence was insufficient to
          convict the petitioner of criminal attempted homicide[.]

       5. Did [Appellant’s] trial attorney constitute ineffective
          assistance of counsel where he didn’t read and understand
          the applicable law?

       6. Counsel was ineffective for failing to fully litigate sufficiency of
          the evidence on direct appeal.

Appellant’s Brief at 7.2

       The arguments in Appellant’s brief do not align with the six assertions

of error.   See Pa.R.A.P. 2119(a) (“The argument shall be divided into as

many parts as there are questions to be argued [….]”). Assertions of error 1

and 2 appear to relate to counsel’s failure to call an expert witness.

Assertions of error 3, 4, and 6 relate to Appellant’s sufficiency of the

evidence argument, and whether appellate counsel rendered ineffective

service in his presentation of that issue on direct appeal. Assertion of error
____________________________________________


2
   Appellant’s Brief is not paginated. We have added our own pagination,
with page one immediately following the cover page.



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5 criticizes trial counsel’s defense strategy. We will address these issues in

turn.

        On review from a PCRA court’s denial of relief, we must determine

whether the record supports the court’s findings and whether its legal

determinations are free from error.      Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009). Appellant argues trial counsel was ineffective for not

offering expert testimony on the victim’s identification.     Appellant argues

that scientific evidence indicates that identification testimony from a victim

who was under attack, and therefore under a great deal of stress, is

potentially unreliable. To establish ineffective assistance of counsel, a PCRA

petitioner must plead and prove that the underlying claim is of arguable

merit, that counsel had no reasonable strategic basis for the act or omission;

and that counsel’s mistake prejudiced the petitioner.     Commonwealth v.

Kimball, 724 A.2d 326, 333 (Pa. 1999). Further, to succeed on a claim that

counsel was ineffective for failing to call a certain witness, the petitioner

must show

        (1) that the witness existed; (2) that the witness was available;
        (3) that counsel was informed of the existence of the witness or
        should have known of the witness’s existence; (4) that the
        witness was prepared to cooperate and would have testified on
        appellant’s behalf; and (5) that the absence of the testimony
        prejudiced appellant.

Commonwealth v. Brown, 767 A.2d 576, 581–82 (Pa. Super. 2001).

“Thus, trial counsel will not be found ineffective for failing to investigate or

call a witness unless there is some showing by the appellant that the

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witness's testimony would have been helpful to the defense.” Id. “A failure

to call a witness is not per se ineffective assistance of counsel for such

decision usually involves matters of trial strategy.” Id.

       In Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014), our Supreme

Court removed an absolute prohibition on expert testimony regarding

eyewitness identifications.

              We now allow for the possibility that such expert testimony
       on the limited issue of eyewitness identification as raised in this
       appeal may be admissible, at the discretion of the trial court,
       and assuming the expert is qualified, the proffered testimony
       relevant, and will assist the trier of fact. Of course, the question
       of the admission of expert testimony turns not only on the state
       of the science proffered and its relevance in a particular case,
       but on whether the testimony will assist the jury. Trial courts
       will exercise their traditional role in using their discretion to
       weigh the admissibility of such expert testimony on a case-by-
       case basis. It will be up to the trial court to determine when
       such expert testimony is appropriate. If the trial court finds that
       the testimony satisfies Frye,[3] the inquiry does not end. The
       admission must be properly tailored to whether the testimony
       will focus on particular characteristics of the identification at
       issue and explain how those characteristics call into question the
       reliability of the identification. We find the defendant must make
       an on-the-record detailed proffer to the court, including an
       explanation of precisely how the expert’s testimony is relevant to
       the eyewitness identifications under consideration and how it will
       assist the jury in its evaluation. The proof should establish the
       presence of factors (e.g., stress or differences in race, as
       between the eyewitness and the defendant) which may be
       shown to impair the accuracy of eyewitness identification in
       aspects which are (or to a degree which is) beyond the common
       understanding of laypersons.

Commonwealth v. Walker, 92 A.3d 766, 792 (Pa. 2014).
____________________________________________


3
    Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).



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      Appellant’s brief goes on at length about the scientific evidence

pertaining to expert evaluation of eyewitness identifications. Appellant does

not, however, proffer an expert who would have testified on Appellant’s

behalf, given the facts of this case. Nor does Appellant attempt to explain

why expert testimony would have been helpful to him in this case. As our

Supreme Court explained in Walker, the admission of expert testimony as

to an eyewitness identification is highly dependent on the facts at issue.

Appellant has failed to demonstrate that expert testimony was relevant,

admissible, and helpful to him in this case.    Thus, he cannot demonstrate

that counsel was ineffective for failing to call an expert.             We reject

Appellant’s first and second assertions of error as lacking in merit.

      Next, Appellant argues that the evidence against him was insufficient,

and that appellate counsel was ineffective in presenting a sufficiency of the

evidence challenge on direct appeal.

            As a general matter, our standard of review of sufficiency
      claims requires that we evaluate the record in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.
      Evidence will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

            The Commonwealth may sustain its burden by means of
      wholly circumstantial evidence. Accordingly, [t]he fact that the
      evidence establishing a defendant’s participation in a crime is

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      circumstantial does not preclude a conviction where the evidence
      coupled with the reasonable inferences drawn therefrom
      overcomes the presumption of innocence. Significantly, we may
      not substitute our judgment for that of the fact finder; thus, so
      long as the evidence adduced, accepted in the light most
      favorable to the Commonwealth, demonstrates the respective
      elements of a defendant’s crimes beyond a reasonable doubt,
      the appellant’s convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722–23 (Pa. Super. 2013)

(internal citations and quotation marks omitted).

      Appellant challenges direct appeal counsel’s effectiveness to avoid the

previous litigation bar of § 9543(a)(3). On direct appeal, Appellant argued

that the Commonwealth failed to produce sufficient evidence that Appellant

acted with specific intent to kill.   Lewis, 2968 EDA 2013, unpublished

memorandum at 6.            We rejected that argument because the record

demonstrated that Appellant filed a gunshot at a vital part of the victim’s

body. Id. at 6-7. Appellant also argued that he shot the victim because she

would not turn over her wallet, and not because he intended to kill her. Id.

at 7. We rejected that argument because it required us to draw an inference

in Appellant’s favor. Id.

      Appellant’s present argument, while unartful, appears to be precisely

the same argument this Court rejected on direct appeal. Appellant argues

that “[c]ompetent counsel would have determined that the evidence that

[Appellant] had the ‘intent to rob’ the victim through his actions and

conduct.”    Appellant’s Brief at 17.       “Competent counsel would have

determined that the evidence shown [sic] that [Appellant] could’ve had the

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intent to rob and the chance of having the specific intent to kill was

extremely thin.” Id. at 18. Further, “[t]he use of a deadly weapon directed

at a vital organ of another human being justifies a factual presumption that

the actor intended death unless the testimony contains additional evidence

that would demonstrate a contrary intent.”         Id. at 19.    Based on the

foregoing, we conclude the PCRA court did not err in treating this argument

as previously litigated. Appellant’s third, fourth, and sixth assertions of error

therefore lack merit.

      The sole remaining issue is Appellant’s assertion that counsel was

ineffective for failing to read and understand the applicable law.          This

argument appears to be based on Appellant’s belief that his sufficiency of

the evidence and expert witness arguments were meritorious.                 See

Appellant’s Brief at 16. Since we have concluded otherwise, we reject this

assertion as well.

      Having found no merit in any of Appellant’s arguments, we affirm the

PCRA court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2017

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