J-S39003-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PHU T CHIM,

                            Appellant                No. 2171 EDA 2011


                   Appeal from the PCRA Order July 15, 2011
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0411571-2005
                            CP-51-CR-0411581-2005


BEFORE: BOWES, OTT AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                               FILED JUNE 23, 2015

       Phu T. Chim appeals from the July 15, 2011 order1 denying him PCRA

relief. We affirm.

       On February 22, 2005, Appellant was arrested and charged at criminal

action 0411571-2005 with one count of robbery, one count of possession of
____________________________________________


1
  This appeal was timely filed. The reasons for delay in disposition are, in
chronological order: 1) counsel’s failure to file a docketing statement, which
resulted in a remand for a determination as to whether counsel had
abandoned Appellant: 2) the trial court’s failure to timely forward the
record; 3) two defense requests for extensions of time to file a brief; 4)
Appellant’s petition to proceed pro se just after a counseled brief was filed;
5) a remand for a hearing on that petition; 6) delays in the conduct of the
hearing; 7) after the trial court’s denial of the request to proceed pro se, the
grant of two more extensions to file a brief filed by Appellant’s counsel; 8)
despite the grant of extensions, the late filing of Appellant’s brief; and 9)
grant of two extensions to the Commonwealth to file its brief.
J-S39003-15



an instrument of crime (“PIC”) and related charges based on a criminal

episode occurring on January 23, 2005. One month later, on February 23,

2005, Appellant was arrested and charged at criminal action number

0411581-2005 with two counts of robbery, two counts of PIC, and other

charges due to an incident occurring on February 4, 2005.

        The charges were consolidated for trial, and, on November 3, 2006, a

jury convicted Appellant of three counts each of robbery and PIC. The jury’s

verdict was based upon the following evidence. At approximately 10:00 am.

on January 23, 2005, Iwan Santoso was working with his mother at his cafe

located at 1529 Morris Street, Philadelphia.           Appellant approached Mr.

Santoso’s mother, who was at the cash register, and started yelling and

using profanities. Mr. Santoso pressed a button to summon police and went

to his mother’s aid.    Appellant then removed a gun from his jacket and

demanded that Mr. Santoso open the cash register and give him the money

in it. Mr. Santoso complied with that demand, and Appellant left with the

cash. Mr. Santoso related that he had an unobstructed view of Appellant’s

face during the robbery.        After the incident, Mr. Santoso flagged down a

passing Philadelphia police officer and gave a description of his assailant.

About    two   weeks   later,    Mr.   Santoso   saw   Appellant   driving   in   the

neighborhood and gave police a description of Appellant’s vehicle, a white

Mercedes Benz.




                                        -2-
J-S39003-15



      Mr. Samantri Aimodjo and Ms. Tienneke Suardi testified about an

incident that occurred on February 4, 2005.     At approximately noon, they

were having lunch while working at a store located about two blocks from

Mr. Santoso’s café. Appellant approached the cash register, tapped it with a

gun, and demanded that the victims open it.        Mr. Aimodjo went to the

register, opened it, and slowly handed Appellant the money piecemeal. The

robbery took fifteen to twenty minutes to complete, and both victims were

able to see Appellant clearly.     After the robbery was over, police were

summoned, and the eyewitnesses described their assailant as a thirty-year-

old male Asian with a light-complexion, 5’5” in height, and 125 pounds. He

was wearing a tan suit and a yellow hooded jacket with a dragon on the

back. This description matched that given to police by Mr. Santoso.

      Officer Chris Lai began to conduct surveillance in the area searching

for Appellant. On February 22, 2005, he and his partner observed Appellant,

who matched the description outlined by the victims, driving a white

Mercedes. After Appellant parked his car, Officer Lai approached Appellant,

who fled after Officer Lai displayed his police badge. Appellant was captured

by Officer Lai’s partner.

      Philadelphia Police Detective Frank Wallace photographed Appellant

and created a photographic display containing seven other photographs of

similar individuals.   Mr. Santoso came to the police station and identified

Appellant as the perpetrator of the January 23, 2005 robbery. Based upon

                                     -3-
J-S39003-15



this identification, Detective Wallace obtained search warrants for Appellant’s

car and home.        Police recovered bullets and a jacket matching the

description given by the victims.

      Thereafter, Mr. Aimodjo and Ms. Suardi were shown a photographic

display containing Appellant’s picture.       Those victims also identified

Appellant as the perpetrator of the February 4, 2005 incident.       All three

victims stated at trial that Appellant was the armed robber who stole money

from their cash registers.

      After Appellant’s judgment of sentence was imposed, he filed a direct

appeal raising five contentions.    We affirmed, Commonwealth v. Chim,

972 A.2d 549 (Pa.Super. 2009) (unpublished memorandum), and our

Supreme Court denied review on October 27, 2009.          Commonwealth v.

Chim, 982 A.2d 1227 (Pa. 2009).        Appellant filed a timely PCRA petition,

and this appeal followed its denial.    Appellant presents one issue for our

review:

            A. Did the trial (PCRA) Court err when it denied
      [Appellant’s] amended Post Conviction Relief Act petition
      wherein the issue raised was that direct appellate counsel was
      ineffective for not properly raising and preserving the issue of
      the weight of the evidence on appeal as it was the crux of the
      defense theory at trial and this dereliction of duty deprived the
      appellant of effective assistance of counsel for meaningful
      appellate review?

Appellant’s brief at 2.




                                     -4-
J-S39003-15



      Initially, we outline the applicable principles regarding our review of

the PCRA court’s determinations herein:

           An appellate court reviews the PCRA court's findings of fact to
      determine whether they are supported by the record, and reviews
      its conclusions of law to determine whether they are free from
      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.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa.Super. 2014)

(citation omitted).

      Appellant’s contention is that trial counsel was ineffective for failing to

preserve a weight claim by filing a post-sentence motion. He noted that his

defense at trial was premised upon mistaken identity and avers that a

weight motion would have been “meritorious for the purpose of appeal.”

Appellant’s brief at 14. He observes that “it was necessary to file [a post-

sentence] motion to preserve this issue.” Id.

      Trial counsel “is presumed effective, and to rebut that presumption,

the PCRA petitioner must demonstrate that counsel's performance was

deficient and that such deficiency prejudiced him.” Freeland, supra at 775

(citation omitted).    There is a three-part test for proving counsel’s

ineffectiveness: “To establish trial counsel's ineffectiveness, a petitioner

must demonstrate: (1) the underlying claim has arguable merit; (2) counsel

had no reasonable basis for the course of action or inaction chosen; and (3)

counsel's action or inaction prejudiced the petitioner.     See Strickland v.



                                      -5-
J-S39003-15



Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);

Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).” Id.

(citation omitted). “Counsel's assistance is deemed constitutionally effective

once this Court determines that the defendant has not established any one

of the prongs of the ineffectiveness test.” Id. (citation and emphasis

omitted).

      We note that the PCRA judge was also the presiding judge at trial.

That court concluded that trial counsel was not ineffective for failing to

pursue a weight claim in a post-sentence motion since it was not a

meritorious challenge to the jury’s verdict.   Since the trial judge rejected

Appellant’s weight claim, the merits of that contention is subject to the

following standard of review:

             A verdict is not contrary to the weight of the evidence
      because of a conflict in testimony or because the reviewing
      court on the same facts might have arrived at a different
      conclusion than the fact-finder. Rather, a new trial is warranted
      only when the jury's 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. Where, as here, the judge who presided at trial ruled on
      the weight claim below, an appellate court's role is not to
      consider the underlying question of whether the verdict is
      against the weight of the evidence. Rather, appellate review is
      limited to whether the trial court palpably abused its discretion
      in ruling on the weight claim.

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).

Indeed, “One of the least assailable reasons for granting or denying a new

trial is the lower court's determination that the verdict was or was not


                                    -6-
J-S39003-15




against the weight of the evidence and that new process was or was not

dictated by the interests of justice.” Id.

      Herein, the PCRA court rejected the position that Appellant could have

obtained relief had counsel raised a challenge to the weight of the evidence

in a post-sentence motion.      It noted that the jury was empowered with

deciding the credibility of the witnesses, including Appellant’s defense of

mistaken identity.   It outlined that the verdict did not shock its sense of

justice given that the victims “gave detailed, matching descriptions.

Furthermore, the victims identified the Appellant from a photo array and at

trial. Finally, searches of Appellant’s home yielded both the clothing he wore

during the robberies and ammunition.” Trial Court Opinion, 12/21/11, at 3.

Given the PCRA court’s articulated rationale for rejecting Appellant’s

position, we cannot conclude that a palpable abuse of discretion occurred.

Thus, contrary to Appellant’s position, his weight-of-the-evidence challenge

was not meritorious.    We therefore conclude, as did the PCRA court, that

trial counsel was not ineffective for failing to pursue a weight claim in a post-

sentence motion. Hence, we affirm.

      Order affirmed.




                                      -7-
J-S39003-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2015




                          -8-
