J-S24018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    LAQUAM SMITH

                             Appellant                No. 440 EDA 2019


             Appeal from the PCRA Order entered January 30, 2019
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0005466-2013


BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.:                             Filed: August 25, 2020

        Appellant, Laquam Smith, appeals from the January 30, 2019 order

entered in the Court of Common Pleas of Philadelphia County, denying his

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant asserts PCRA court error for

denying his request to reinstate his appeal rights and for rejecting a claim of

trial counsel ineffectiveness. Upon review, we affirm.
       On direct appeal, this Court condensed the underlying facts set forth in

the trial court’s opinion as follows:

        On February 21, 2012, a white Chrysler 300 followed a red
        Mitsubishi Montero owned by the [d]ecedent, Julio Cesar
        Hernandez (Hernandez), southbound into the shared driveway
        behind Hernandez’s home, located at 3900 Palmetto Street . . . .
        Two surveillance cameras affixed to the rear of 3910 Palmetto
        Street showed the two (2) vehicles enter the driveway, and
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*   Retired Senior Judge assigned to the Superior Court.
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     captured the Chrysler parking along the rear of 3910 at 11:19
     A.M. At 11:24 A.M., [] Ladale Pace (Pace) . . . dressed in a dark
     hoodie, dark jeans and black shoes entered the rear of the
     Chrysler on the driver’s side, remained for approximately [thirty]
     seconds, then exited the Chrysler . . . .

     [] Pace used Hernandez’s keys to enter Hernandez’s home, where
     he went upstairs to Hernandez’s bedroom, and searched the
     drawers of Hernandez’s dresser. Juanna Perez (Perez)[,] the wife
     of Hernandez, . . . went to the living room . . . . [where she]
     noticed a male[, Appellant,] standing outside of the door with his
     hands in his pockets. Perez began calling for her husband and
     saw [] Pace on the stairs holding a gun. Pace ran out of the house
     and turned left, and the male who was outside ran away to the
     right.

                                    ***

     Jorge Gonzalez (Gonzalez), who lived on I Street, was going to his
     van in the same shared driveway when he heard gunshots.
     Gonzalez was [ninety] feet[fn] away when he saw Appellant who
     was wearing a gray hoodie with the hood partially covering his
     hair approach Hernandez. Hernandez was on the ground when
     Gonzalez witnessed Appellant shoot Hernandez in the back of the
     head. Appellant then entered the front passenger side of the
     Chrysler and the car drove south. . . .

                                    ***

     At 11:29 A.M., two (2) security cameras affixed to the rear of J.J.’s
     Café, located at 1065 East Erie Avenue, showed the Chrysler enter
     the shared driveway between Elsinore Street and J Street and pull
     into a side street out of camera view.         Appellant and the
     unidentified driver subsequently walked into camera view, and
     walked toward J Street. . . .

                                    ***

     Detective Gregory Singleton [] obtained a picture of Appellant,
     and prepared a photo array for Gonzalez using a computer to
     generate the other seven (7) images of individuals with similar
     features. In the photograph of Appellant he had longer hair than
     the other males in the photo array. Gonzalez identified Appellant
     out of a photo array by circling Appellant’s picture and signing

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      underneath. . . . Appellant was ultimately arrested on April 11,
      2012. . . .

            In his brief, Appellant alleges that Gonzalez was ninety yards away.
         [fn]

         (See Appellant’s Brief, at 20). At the suppression hearing, defense
         counsel argued that Gonzalez was thirty-three yards away. (See N.T.
         Suppression and Trial, 7/08/14, at 58). During its charge to the jury,
         the trial court stated that “Mr. Gonzale[z] was [ninety] yards away.”
         (N.T. Trial, 7/16/14, at 44).

Commonwealth v. Smith, No 3578 EDA 2014, unpublished memorandum

at 3-6 (Pa. Super. filed June 14, 2016) (“Smith I”) (quoting Trial Court

Opinion, 6/12/15, at 3-6) (alterations in original).

      As the PCRA court explained:

      On July 7, 2014 both Appellant and co-defendant Pace
      proceed[ed] to a jury trial before the Honorable Lillian Ransom.
      On the second day of trial, Judge Ransom denied Appellant’s
      motion to suppress the identification of Appellant by Jorge
      Gonzalez from a photo array and on July 17, 2014, the jury
      returned a verdict of guilty of [first-degree murder, robbery,
      burglary, firearms not to be carried without a license, carrying a
      firearm on public streets, and three counts of conspiracy].

      Following the denial of post-sentence motions, Appellant filed a
      timely Notice of Appeal to the Superior Court which affirmed
      Appellant’s judgment of sentence on June 14, 2016 at 3578 EDA
      2014.

PCRA Court Opinion, 9/19/19, at 4.          Appellant subsequently filed a pro se

PCRA petition, followed by an amended petition. Counsel was appointed and

filed a counseled amended petition. On June 13, 2018, the Commonwealth

filed a motion to dismiss. On December 26, 2018, the PCRA court issued a

Rule 907 notice of intention to dismiss.         Appellant did not file a response.

“After an independent review of the record and the pleadings of both parties,”

the PCRA court dismissed Appellant’s amended petition by order entered on

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January 30, 2019.       Id. at 4-5 (some capitalization omitted).       This timely

appeal followed. Both Appellant and the PCRA court complied with Pa.R.A.P.

1925.

        Appellant presents two issues for this Court’s consideration:

        1. Whether the PCRA court erred when it dismissed the
           Appellant’s PCRA petition after making an independent
           inspection of the Appellant’s photo array and concluding that
           the trial court properly denied the Appellant’s pre-trial
           suppression motion where the propriety of the denial of the
           motion had been raised on direct appeal and where the
           Superior Court ruled that appellate counsel had waived the
           challenge because counsel did not ensure that the photo array
           was made a part of the appellate court record?

        2. Whether the PCRA court erred when it dismissed the
           Appellant’s PCRA petition where trial counsel was ineffective for
           failing to move for a mistrial when five days into the trial it was
           revealed for the first time that the petitioner’s fingerprint was
           found on the getaway vehicle belonging to the co-defendant
           Ladale Pace?

Appellant’s Brief at 6 (some capitalization omitted).

        As this Court reiterated in Commonwealth v. Beatty, 207 A.3d 957

(Pa. Super. 2019):

        Our standard of review of the denial of a PCRA petition is limited
        to examining whether the evidence of record supports the court’s
        determination and whether its decision is free of legal error.
        Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011),
        appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court
        grants great deference to the findings of the PCRA court if the
        record contains any support for those findings. Commonwealth
        v. Boyd, 923 A.2d 513 (Pa. Super. 2007), appeal denied, 593 Pa.
        754, 932 A.2d 74 (2007). We do not give the same deference,
        however, to the court’s legal conclusions. Commonwealth v.
        Ford, 44 A.3d 1190 (Pa. Super. 2012).




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Id. at 960-61.1

       To obtain relief on a claim of ineffective assistance of counsel, Appellant

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

lacked a reasonable basis for his actions or failure to act; and (3) the petitioner

was prejudiced by counsel’s deficient performance such that there is a

reasonable probability that the result of the proceeding would have been

different absent counsel’s error or omission. Commonwealth v. Pierce, 527

A.2d 973, 975 (Pa. 1987). “A failure to satisfy any prong of the ineffectiveness

test requires rejection of the claim of ineffectiveness.” Commonwealth v.

Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation omitted).              Counsel is

presumed to have rendered effective assistance.             Commonwealth v.

Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012).

       Appellant’s first issue relates to a photo array shown to witness

Gonzalez. On direct appeal, Appellant asserted trial court error for denying

his motion to suppress Gonzales’ identification of Appellant because the array

was unduly suggestive.        Specifically, Appellant complained that his hair was

longer than the hair of the individuals portrayed in the other photographs.

This Court disagreed, noting first that Appellant failed to include a copy of the



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1 We remind counsel that Pa.R.A.P. 2111(a)(3) requires the inclusion of a
statement of the scope and standard of review in an appellant’s brief. We also
remind counsel that Pa.R.A.P. 2119(a) requires that the argument section of
the brief is to be divided into as many parts as there are questions to be
argued.

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photo array in the certified record. Because Appellant failed to include a copy

of the array in the record, the issue challenging suppression was waived.

Smith I at 6 (citing, inter alia, Commonwealth v. Manley, 985 A.2d 256,

263-64 (Pa. Super. 2009), appeal denied, 996 A.2d 491 (Pa. 2010)).

      This Court then considered the merits of Appellant’s claim and

determined that the issue would not warrant relief, even if not waived. The

Court observed that the suppression court viewed the photo array and, while

acknowledging Appellant’s hair was longer than that of the other individuals

in the array, concluded “the procedure in the instant case did not rise to the

level of being unduly suggestive or create a substantial likelihood of

misidentification.” Id. at 7 (quoting Trial Court Opinion, 6/12/15, at 9).

      Appellant argues the PCRA court erred when it made its own inspection

of the photo array and found the trial court properly denied the suppression

request.   He argues the only issue before the PCRA court was whether

appellate counsel was ineffective for failing to provide evidence to preserve

the suppression issue for review by this Court on direct appeal.

      As the PCRA court recognized:

      Appellant ignores the fact that after finding this claim to be
      waived, the Superior Court went on to address the merits of his
      claim and determined that it would, “merit no relief.” Specifically
      the Superior Court panel found, “[a]ccordingly, we conclude that
      the trial court did not err in admitting the out-of-court
      identification because the identification procedure was not so
      impermissibly suggestive to give rise to a likelihood of
      misidentification.”

PCRA Court Opinion, 9/19/19, at 6-7 (quoting Smith I at 6, 7).

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      The PCRA court determined that in light of this Court’s holding in

Smith I, the instant case is controlled by Commonwealth v. Reed, 971 A.2d

1216 (Pa. 2009). In Reed, appellate counsel did not adequately develop a

claim and failed to include notes of testimony in the certified record. On direct

appeal, this Court found that, even if not waived, Reed’s claim would fail

because the challenged evidence was properly admitted.

      Reed filed a PCRA petition seeking reinstatement of his appellate rights.

The PCRA court dismissed the petition and this Court reversed, finding Reed’s

claim was not previously litigated because it had been waived. The Supreme

Court reversed, finding this Court’s determination on direct appeal that the

issue lacked merit was binding on both the PCRA court and this Court as the

law of the case. Reed, 971 A.2d at 1220.

      We find no error in the PCRA court’s conclusion that this Court’s ruling

in Smith I, finding the photo array issue lacked merit, was binding on the

PCRA court as the law of the case. Because the PCRA court properly denied

Appellant’s request for relief with respect to the photo array, Appellant’s first

issue fails.

      In his second issue, Appellant argues that trial counsel was ineffective

for failing to request a mistrial after the prosecutor discovered a mistake

involving fingerprint evidence. Essentially, until the fifth day of trial, it was

believed by the prosecution and the defense that both fingerprints identified

as Appellant’s were lifted from the victim’s vehicle. “[O]n the fifth day of trial,

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the prosecutor realized for the first time that Appellant’s fingerprint had been

found on the getaway vehicle which was registered to co-defendant Ladale

Pace.” PCRA Court Opinion, 9/19/19, at 8.2 In other words, until the fifth day

of trial, no fingerprint evidence was presented to the jury that connected

Appellant with Pace’s Chrysler, the getaway vehicle.

       The prosecution requested the opportunity to recall the fingerprint

witness to clarify that Appellant’s fingerprint was, in fact, on the passenger

side mirror of the getaway vehicle. Appellant’s counsel objected, noting he

represented to the jury in his opening that there was no evidence linking

Appellant to that vehicle. He claimed his theory of the case would have been

different had he known of the print linking Appellant to the Chrysler. See

Notes of Testimony, Trial, 7/14/14, at 12-24. In light of the error, the trial

court precluded the prosecution from recalling the witness and from using the

evidence. Id. at 21.

       Based on a review of the record, the PCRA court concluded that in light

of the trial court’s ruling, Appellant could not prove he was prejudiced by

counsel’s failure to move for a mistrial. PCRA Court Opinion, 9/19/19, at 8

(citing Commonwealth v. Garvin, 485 A.2d 36, 39 (Pa. Super. 1984) (no

relief due where counsel’s alleged error had no effect on the outcome)).




____________________________________________


2 The second fingerprint was found on a cell phone used by Appellant that was
recovered from the victim’s Mitsubishi.

                                           -8-
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      In his brief, Appellant argues that he was prejudiced and suggests two

ways the outcome of the case could have been different.         He claims he

“rejected a pre-trial offer without the aid of having complete and accurate

information about the evidence against him.” Appellant’s Brief at 17. He also

contends the outcome was affected because, having failed to seek a mistrial,

counsel had to improvise a defense strategy mid-trial once it was discovered

Appellant’s fingerprint was, in fact, lifted from Pace’s Chrysler. Id. We find

no merit in either scenario.

      Appellant intimates he might have accepted a pre-trial offer if he had

complete and accurate information about the fingerprint evidence. However,

Appellant fails to acknowledge that the Commonwealth was similarly under a

misimpression about the fingerprint evidence, bringing into question whether

the Commonwealth would have extended the offer if it were in possession of

accurate information about the evidence. Moreover, Appellant’s suggestion

the outcome might have been different because counsel had to improvise a

defense strategy does not pass muster. To the extent the defense strategy

was based on the lack of any evidence connecting Appellant with the Chrysler,

there was no need to improvise a new strategy because the trial court’s ruling

precluded the prosecution from attributing fingerprints from the Chrysler to

Appellant.

      Moreover, as the PCRA court observed:

      Further, having successfully precluded this evidence, trial counsel
      possessed a reasonable basis for not requesting a mistrial since

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      the evidence would likely have been admitted at retrial since
      counsel would no longer have been able to claim surprise. Since
      this reasonable basis existed for trial counsel’s actions, Appellant’s
      claims must fail.

PCRA Court Opinion, 9/19/19, at 9 (citing Commonwealth v. Douglas, 645

A.2d 226, 231 (Pa. 1994), in turn citing Commonwealth v. Pierce, 527 A.2d

at 975 (having determined that a reasonable basis exists for the alleged

omission, the court’s inquiry ceases and trial counsel is deemed effective)).

We agree. Not only has Appellant failed to establish that he was prejudiced

by counsel’s omission, but also there was a reasonable basis for counsel’s

actions. Appellant is not entitled to relief on his ineffectiveness claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/20




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