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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                  v.                     :
                                         :
TYREE EDWARDS,                           :        No. 3874 EDA 2017
                                         :
                       Appellant         :


               Appeal from the PCRA Order, October 31, 2017,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0006690-2009


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED JANUARY 11, 2019

     Tyree Edwards appeals from the October 31, 2017 order entered by

the Court of Common Pleas of Philadelphia County denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. After careful review, we affirm.

     The factual history of this case was provided by a previous panel of

this court and need not be reproduced here.        See Commonwealth v.

Edwards, 82 A.3d 461 (Pa.Super. 2013) (unpublished memorandum). The

procedural history of this case is as follows:   the Commonwealth charged

appellant with, inter alia, second-degree murder, attempted murder,

aggravated assault, criminal conspiracy, and possession of an instrument of
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crime.1 Following trial, the jury convicted appellant of the above offenses on

March 1, 2012. Immediately thereafter, the trial court sentenced appellant

to an aggregate term of life imprisonment. Appellant appealed the judgment

of sentence to this court on July 6, 2012.     We affirmed the judgment of

sentence on June 17, 2013.       Id.    Appellant did not file a petition for

allowance of appeal with our supreme court.

      On May 22, 2014, appellant filed a timely pro se petition pursuant to

the PCRA. The PCRA court appointed counsel to represent appellant, and on

January 25, 2016, appellant filed a counseled amended PCRA petition.

Appellant filed another amended PCRA petition on October 25, 2016.

      The PCRA court filed a notice of its intent to dismiss appellant’s PCRA

petition without a hearing pursuant to Pa.R.Crim.P. 907 on September 27,

2017. On October 31, 2017, the PCRA court dismissed appellant’s petition

without a hearing.

      Appellant filed a timely pro se notice of appeal to this court on

November 22, 2017.       On November 27, 2017, the PCRA court ordered

appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and appellant timely complied.      The PCRA

court issued an opinion pursuant to Pa.R.A.P. 1925(a) on April 9, 2018.

      Appellant raises the following issues for our review:




1  18 Pa.C.S.A. §§ 2502(b), 901(a), 2702(a), 903(a)(1), and 907(a),
respectively.


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            I.     Did the Honorable PCRA Court err when it
                   dismissed [appellant’s] PCRA Petition without a
                   Hearing?

            II.    Is [appellant] entitled to a new trial as the
                   result of error on the part of the PCRA court?

Appellant’s brief at 3.

            We begin by noting the following standard of review,
            guiding our consideration of this appeal. “On appeal
            from the denial of PCRA relief, our standard of
            review calls for us to determine whether the ruling of
            the PCRA court is supported by the record and free
            of legal error.” Commonwealth v. Calhoun, 52
            A.3d 281, 284 (Pa.Super. 2012) (citation omitted).
            “The PCRA court's findings will not be disturbed
            unless there is no support for the findings in the
            certified record.” Commonwealth v. Garcia, 23
            A.3d 1059, 1061 (Pa.Super. 2011) (internal
            quotation marks and citation omitted), appeal
            denied, [] 38 A.3d 823 ([Pa.] 2012). “The PCRA
            court's factual determinations are entitled to
            deference, but its legal determinations are subject to
            our plenary review.” Commonwealth v. Johnson,
            [] 966 A.2d 523, 532 ([Pa.] 2009) (internal
            quotation marks and citations omitted).

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012), appeal

denied, 72 A.3d 602 (Pa. 2013).

      In both issues raised on appeal, appellant alleges separate allegations

of ineffective assistance on the part of his trial counsel, Thomas McGill, Esq.

Specifically, appellant alleges that Attorney McGill rendered ineffective

assistance by failing to object to the trial court’s alibi instruction to the jury

and by failing to file a motion to suppress identification evidence.        (See

appellant’s brief at 7-12.)



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            The governing legal standard of review of ineffective
            assistance of counsel claims is well-settled:

                  [C]ounsel 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.
                  Strickland v. Washington, 466 U.S.
                  668, [] (1984). This Court has described
                  the Strickland standard as tripartite by
                  dividing the performance element into
                  two          distinct         components.
                  Commonwealth v. Pierce, [] 527 A.2d
                  973, 975 ([Pa.] 1987). Accordingly, to
                  prove counsel ineffective, the petitioner
                  must     demonstrate     that   (1)     the
                  underlying legal issue has arguable
                  merit; (2) counsel's actions lacked an
                  objective reasonable basis; and (3) the
                  petitioner was prejudiced by counsel's
                  act or omission.       Id.    A claim of
                  ineffectiveness will be denied if the
                  petitioner's evidence fails to satisfy any
                  one of these prongs.

            Commonwealth v. Busanet, [] 54 A.3d 34 [35],
            45 ([Pa.] 2012) (citations formatted). Furthermore,
            “[i]n accord with these well-established criteria for
            review, [an appellant] must set forth and individually
            discuss substantively each prong of the Pierce test.”
            Commonwealth v. Fitzgerald, 979 A.2d 908, 910
            (Pa.Super. 2009).

Commonwealth v. Roane, 142 A.3d 79, 88 (Pa.Super. 2016), quoting

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015),

order vacated on other grounds, 166 A.3d 1213 (Pa. 2017).

      In his first issue, appellant contends that Attorney McGill’s provided

ineffective assistance of counsel when he failed to object to the trial court’s



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alibi instruction to the jury.2    We must first determine if appellant’s

underlying legal issue—whether the trial court’s alibi instruction to the jury—

is of arguable merit.

            [W]hen evaluating the propriety of jury instructions,
            this Court will look to the instructions as a whole,
            and not simply isolated portions, to determine if the
            instructions were improper. We further note that, it
            is an unquestionable maxim of law in this
            Commonwealth that a trial court has broad discretion
            in phrasing its instructions, and may choose its own
            wording so long as the law is clearly, adequately,
            and accurately presented to the jury for its
            consideration. Only where there is an abuse of
            discretion or an inaccurate statement of the law is
            there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014), quoting Commonwealth v.

Trippett, 932 A.2d 188, 200 (Pa.Super. 2007) (citation omitted).

      Here, appellant avers that the trial court made two errors as it

instructed the jury on appellant’s alibi defense.   First, appellant contends

that the trial court provided a “misleading” direction when it instructed that

“the alibi had to demonstrate that [appellant] was at a different location at

the precise time that the crime occurred[.]”        (Appellant’s brief at 7.)


2 We note that appellant is “not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no genuine
issue concerning any material fact and [appellant] is not entitled to post-
conviction relief, and no purpose would be served by any further
proceedings.” Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super.
2008) appeal denied, 965 A.2d 433 (Pa. 2008), quoting Commonwealth
v. Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal denied, 951
A.2d 1163 (Pa. 2008) (citations omitted).


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Appellant takes specific issue with the trial court’s use of the word “precise.”

(Id. at 7-8.)   To further his argument, appellant poses a hypothetical of

whether the jury could determine that appellant was “at a different location

one minute before the murder occurred, and that the different location was

far away, could [it] still find [appellant] not guilty if he was not at a different

location at the precise time that the crime was being committed?” (Id. at

8.) Appellant also contends that the trial court, through its instructions to

the jury, improperly shifted the burden of proving an alibi defense to

appellant. (Id. at 8-9.) The Commonwealth counters by arguing that the

trial court’s jury instructions substantively conformed with the Pennsylvania

Suggested Standard Jury Instructions. (Commonwealth’s brief at 7.)

      The trial court’s jury instructions, in relevant part, were as follows:

            In this case the defendant has presented evidence of
            an alibi, meaning, that he was not present at the
            scene and was at another location at the precise
            time that the crime charged in this case took place.
            You should consider this evidence, along with all of
            the other evidence in the case, in determining
            whether the Commonwealth has met their burden of
            proving beyond a reasonable doubt that the
            defendant committed or took part in commission of
            the crimes at issue.

            The defendant’s evidence that he was not present by
            itself or together with evidence may be sufficient to
            raise a reasonable doubt of his guilt. If you have a
            reasonable doubt of the defendant’s guilt, you must
            find him not guilty. On the other hand, if you are
            convinced beyond a reasonable doubt that he is
            guilty, you should find him guilty.

Notes of testimony, 2/28/12 at 64.


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      By comparison, the Pennsylvania Criminal Suggested Standard Jury

Instructions include the following alibi instruction:

            In this case, the defendant has presented evidence
            of an alibi, that is, that [he] was not present at the
            scene or was rather at another location at the
            precise time that the crime took place. You should
            consider this evidence along with all the other
            evidence in the case in determining whether the
            Commonwealth has met its burden of proving
            beyond reasonable doubt that a crime was
            committed and that the defendant [himself]
            committed [or took part in committing] it.         The
            defendant’s evidence that [he] was not present,
            either by itself or together with other evidence, may
            be sufficient to raise a reasonable doubt of [his]
            guilt.   If you have a reasonable doubt of the
            defendant’s guilt, you must find [him] not guilty.

Pennsylvania Criminal Suggested Standard Jury Instructions § 3.11.

      Based on our review of the trial court’s jury instructions when

compared    with   the   Pennsylvania    Criminal   Suggested     Standard    Jury

Instructions, we find that the trial court substantively complied with the

suggested standard jury instructions and thereby did not abuse its

discretion. Accordingly, appellant’s first issue is without arguable merit.

      In his second issue on appeal, appellant contends that trial counsel

was ineffective for failing to file a pre-trial suppression motion pertaining to

the identification of appellant because appellant was alleged to have worn a

bandana over his face.      (Appellant’s brief at 11-12).       Appellant further

alleges that “identification evidence was the sole evidence used to convict

[appellant] or at the very least [a] major part of the evidence used to



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convict.” (Id. at 12.) To further his argument, appellant cites the testimony

of two of the Commonwealth’s witnesses at trial—Curtis McKnight and

Derrick Brazelton. (Id. at 11.)

      Based on our review of the record, we find that appellant fails to

establish that counsel’s failure to file a pre-trial suppression motion was an

unreasonable omission on the part of trial counsel. Indeed, both McKnight

and   Brazelton’s   respective    testimonies   severely   undercut   appellant’s

contentions.   Both McKnight and Brazelton have known appellant for their

entire lives. (Notes of testimony, 2/23/12 at 30; 2/27/12 at 47.) McKnight

explicitly testified that he was able to recognize appellant despite the fact

that appellant was wearing a bandana over his face. (Notes of testimony,

2/23/12 at 34-35.) Brazelton testified that despite the fact that appellant

was wearing a bandana; Brazelton was able to recognize him by his eyes,

forehead, and the sound of his voice. (Notes of testimony, 2/27/12 at 47.)

      As part of his second issue, appellant also argues that a photo array

presented to Brazelton, which he also used to identify appellant, was

“unnecessarily suggestive and thus in violation of constitutional norms.”

(Appellant’s brief at 11.) Appellant, however, offers no other information as

to how and/or why the photo array in question was unnecessarily

suggestive. Accordingly, we find that appellant has not met his burden in

establishing ineffective assistance of counsel.




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     Order affirmed.



     Lazarus, J. joins this Memorandum.

     McLaughlin, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 1/11/19




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