J-S48008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DANTAE JACQUES                             :
                                               :
                       Appellant               :   No. 527 EDA 2019

            Appeal from the PCRA Order Entered February 15, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0000963-2013


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.:                            FILED NOVEMBER 25, 2019

        Dantae Jacques appeals from the February 15, 2019 order dismissing

his PCRA petition without a hearing. We affirm.

        Appellant was convicted by a jury of second-degree murder and robbery

based on the following events, which were summarized by this Court on direct

appeal:

        On October 18, 2012, Appellant arranged to purchase one pound
        of marijuana from the victim, Raviya Roeuth. Appellant entered
        the backseat of a car driven by Mr. Roeuth at a predetermined
        location, while another individual, Jony Sam, sat in the passenger
        seat.

        From the rear seat of the vehicle, Appellant fatally shot Mr.
        Roeuth, and severely injured Mr. Sam, who sustained injuries to
        his neck, wrist, and the side of his face. Appellant unlocked the
        trunk of the car and stole the marijuana. He then fled the scene
        of the crime.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      Subsequently, a search warrant for Appellant’s residence was
      issued. Officers executed the warrant at 6 a.m. on November 7,
      2012, and seized a large quantity of marijuana and a scale.
      Appellant was placed under arrest and transferred to the
      Philadelphia homicide unit. He remained in an interrogation room
      with suspects from other investigations throughout the course of
      that day, and the next. During this interval, Appellant was
      provided with breakfast, cheese sandwiches, beverages, and a
      cheesesteak. He had access to a bathroom and slept in the
      interrogation room.

      Detective Brian Peters spoke with Appellant numerous times while
      he remained in police custody. At approximately 4 p.m. on
      November 7, 2012, Detective Peters informed Appellant of his
      Miranda rights. Appellant did not request an attorney at this
      time, but chose to speak with the detective, who memorialized
      their conversation with handwritten notes. Later that evening,
      Appellant again waived his rights, and the detective conducted a
      formal interview. Detective Peters created a written statement
      based on Appellant’s statements, which Appellant reviewed and
      signed. The interview ended at 12:32 a.m. on November 8, 2012.

      Following this interview, Detective Peters investigated the
      averments attested to by Appellant in his statement. Noting
      inconsistencies in that statement, Detective Peters conducted a
      second interview with Appellant during the morning and early
      afternoon of November 8, 2012. Appellant once again waived his
      rights and confessed, in a written statement, to the shootings of
      Mr. Roeuth and Mr. Sam.

Commonwealth v. Jacques, 156 A.3d 337 (Pa.Super. 2016) (unpublished

memorandum at 1-3).

      Appellant filed a pre-trial motion to suppress his confession. Following

a hearing, the court denied Appellant’s motion. A jury convicted Appellant of

the abovementioned crimes, and the court sentenced him to life in prison

without possibility of parole.




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       On direct appeal, Appellant challenged the denial of his motion to

suppress. We affirmed the suppression court’s finding that the statements

were voluntarily given. Jacques, supra. The Supreme Court denied allocatur

on December 28, 2016. Commonwealth v. Jacques, ___A.3d___, 2016 Pa.

LEXIS 2944 (Pa. 2016).

       On January 23, 2018, Appellant filed a timely pro se PCRA petition for

post-conviction relief, and counsel was appointed. Counsel filed an amended

PCRA petition on Appellant’s behalf. The Commonwealth moved to dismiss

the petition without a hearing as the petitioner has failed to present evidence

or an appropriate offer of proof demonstrating the existence of genuine issues

of material fact, citing Pa.R.Crim.P. 909(B), and Commonwealth v. Roney,

79 A.3d 595, 604 (Pa. 2013).1 Commonwealth’s brief at 14. The PCRA court

sent Pa.R.Crim.P. 907 notice to Appellant of its intention to dismiss the petition

without a hearing because the issues were without merit. When Appellant did

not file a response, the PCRA court denied the petition by order of February

15, 2019. Appellant timely filed this appeal raising three issues for our review:

       1. Did the PCRA court err in dismissing Appellant’s PCRA Petition
          without a hearing because trial/direct appeal counsel was
          ineffective for failing to properly litigate Appellant’s
          suppression issue in relation to Appellant’s confession to
          homicide detectives?


____________________________________________


1   The Commonwealth’s reliance upon Pa.R.Crim.P. 909(B) and
Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013), is inapt as that
Rule applies only to post-conviction proceedings in death penalty cases, and
this is not such a case.

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      2. Did the PCRA court err in dismissing Appellant’s PCRA Petition
         without a hearing because trial counsel was ineffective for
         allowing Appellant’s prior conviction and incarceration to be
         elicited at trial?

      3. Did the PCRA court err in dismissing Appellant’s PCRA Petition
         without a hearing because trial counsel was ineffective for
         introducing character evidence when counsel knew that such
         evidence would be subject to impeachment with a prior robbery
         conviction?

Appellant’s brief at 4.

      In reviewing the denial of PCRA relief, “this Court is limited to

ascertaining whether the evidence supports the determination of the PCRA

court and whether the ruling is free of legal error.”     Commonwealth v.

Andrews, 158 A.3d 1260, 1263 (Pa.Super. 2017). All three of Appellant’s

claims implicate ineffective assistance of counsel. We start from the premise

that counsel’s performance is presumed to be constitutionally adequate. In

order to prevail on an ineffectiveness claim, the petitioner must demonstrate

that: (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) petitioner

was prejudiced by counsel’s act or omission.         See Commonwealth v.

Johnson, 966 A.2d 523, 533 (Pa. 2009) (citing 42 Pa.C.S. § 9543(a)(2)(ii));

see also Strickland v. Washington, 466 U.S. 668, 687 (1984).

      A finding of “prejudice” requires the petitioner to “show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.”      Strickland, supra at 703

(citations omitted). When it is clear that an appellant has failed to meet the


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prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether a petitioner met the first two prongs. See

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.Super. 2003) (en banc).

      Finally, a PCRA petitioner is not automatically entitled to an evidentiary

hearing.

      “It is the responsibility of the reviewing court on appeal to
      examine each issue raised in the PCRA petition in light of the
      record certified before it in order to determine if the PCRA court
      erred in its determination that there were no genuine issues of
      material fact in controversy and in denying relief without
      conducting an evidentiary hearing.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citations

omitted).

      Appellant alleges first that trial and appellate counsel were ineffective

because they did not challenge the confession based on “a crucial issue of

undisputed fact,” i.e., that Appellant refused to speak to Detective Peters on

November 8, 2012, and that he did not receive Miranda warnings at that

time. See Appellant’s brief at 11. Appellant contends that instead of honoring

his right to remain silent, Detective Peters sent in Detective Howard Peterman,

who did not Mirandize him before he confessed to the crimes. Instead, he

contends, both trial and appellate counsel dwelt on issues such as sleep and

nourishment in arguing that the confession was not voluntary.

      The record does not support the factual predicate of Appellant’s

ineffectiveness claim.    Trial counsel did seek to suppress Appellant’s

confession on the ground that he invoked his right to counsel and right to

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remain silent, but that his rights were ignored.           Trial counsel argued,

“[Appellant] repeatedly asserted his right to counsel and said he did not want

to talk any more” but the “Detectives continued to badger him.” N.T. Motion

Vol. I, 7/3/14, at 30.

        In support of that claim, Appellant testified that he told Detective Peters

that he needed a lawyer. Id. at 147. According to Appellant, Detective Peters

left the room, and Detective Peterman came in and began to question him.

Appellant testified at the suppression hearing that he refused to speak to

Detective Peterman, and asked for Detective Peters. When Detective Peters

returned, Appellant testified that he again asked to make a phone call to ask

his mother to get him a lawyer. Id.

        Trial counsel contended, based in large part on the foregoing testimony

offered by Appellant that, prior to the November 8, 2012 statement, Appellant

“asserted his right to counsel several times and they continued to question

him.”    Id. at 216.     Counsel argued that the waiver was invalid and that

Appellant’s statement was obtained after he had invoked his right to an

attorney should be suppressed.         Id. at 217.    Hence, the record refutes

Appellant’s premise that trial counsel failed to present these facts as the basis

for suppression.

        As the PCRA court noted, it “heard [Appellant’s] assertion during the

suppression hearing that he invoked his right to remain silent.” PCRA Court

Opinion, 4/5/19, at 9. It considered that testimony, together with conflicting


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testimony offered by the Commonwealth. Despite Appellant’s testimony, the

suppression court found that Appellant was given his Miranda warnings, and

he waived them prior to giving his statement to Detective Peters on November

8, 2012.    Id.    The court found further that Appellant “did, in fact receive

Miranda warnings prior to each statement given.” N.T. Motion Vol. I, 7/3/14,

at 228.    Considering the totality of the circumstances, the court found no

violation of Appellant’s rights under Miranda. Id.2 We find Appellant’s claim

that trial counsel was ineffective in this regard meritless.

       Nor do we find any merit in Appellant’s claim that direct appeal counsel

was ineffective because he failed to argue the facts surrounding Detective

Peterman’s involvement after Appellant refused to talk to Detective Peters.

Appellant fails to demonstrate how the outcome of the appeal would have

been different if appellate counsel had focused on this basis for suppressing

the confession, rather than on whether the confession was involuntary and

coerced.    The PCRA court found that he received Miranda warnings, and

waived his right to an attorney prior to confessing to the murder. No relief is

due.



____________________________________________


2 Testimony was adduced by the Commonwealth that Appellant was provided
with Miranda warnings prior to each interrogation, that “he never asked for
an attorney,” and “[h]e never asked not to be questioned.” N.T. Motion Vol.
I, 7/3/14, at 101. In addition, signed waivers were introduced into evidence.
The suppression court credited this evidence.



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       Appellant’s second ineffectiveness claim relates to counsel’s failure to

file a motion in limine, or object at trial, to exclude evidence that he had been

“locked up” at Glen Mills. Appellant’s brief at 15. The evidence was admitted

as part of his confession.3 Appellant concedes that the evidence was relevant

to show that he knew the victim, but claims, without more, that “there was

definitely a manner in which that relationship could have been shown without

reference to being locked up in an institution.” Id.

       The Commonwealth counters that the evidence was admissible for a

proper purpose: to show that he and the victim knew each other, and why the

victim would have trusted Appellant enough to allow Appellant to enter his

car. Commonwealth’s brief at 23. The Commonwealth also points out that it

did not exploit the passing reference. Furthermore, the Commonwealth cites

Commonwealth v. Adams-Smith, 209 A.3d 1011 (Pa.Super. 2019), for the

proposition that it was not required to sanitize its case by removing facts that

are part of its history and development.         Commonwealth’s brief at 23.   In

short, the Commonwealth contends that Appellant cannot demonstrate that

an objection would have been sustained, or that Appellant was prejudiced by

counsel’s alleged failure in this regard. Id. at 24. Moreover, even assuming

a timely objection would have been sustained, the Commonwealth points out


____________________________________________


3 The actual reference to Appellant’s stay at Glen Hills did not state that he
was “locked up.” It consisted of the following: “I met [Roeuth] up at Glen
Mills. We were in the same unit for about a year.” N.T. (Jury), 7/16/14, at
142.

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that the jury already had been told that Appellant would testify in his own

defense. Thus, it was inevitable that his adjudication for robbery as a juvenile

would have been revealed on cross-examination.              Id.    Finally, given

Appellant’s confession and the strong evidence corroborating his guilt, the

Commonwealth argues that there is no reasonable probability that had counsel

successfully objected, the result would have been different. Id. at 24-25.

      The PCRA court noted that even Appellant conceded that there was a

proper purpose for the admission of such Rule 404(b) evidence, and Appellant

did not establish that it was unfairly prejudicial in this case. Since the evidence

was relevant, and not admitted to show that Appellant possessed a bad

character or a propensity to commit crimes, it was generally admissible. PCRA

Court Opinion, 4/5/19, at 12. Furthermore, Appellant failed to suggest an

alternative means for advising the jury about the relationship. Echoing the

Commonwealth’s position, the PCRA court stated that it was aware that

Appellant intended to testify and that his prior robbery adjudication would

have been a basis for cross-examination. It concluded that trial counsel could

not be deemed ineffective for failing to file a motion or make an objection that

was futile. Id. (citing Commonwealth v. Jones, 912 A.2d 268, 278 (Pa.

2006). We find no error or abuse of discretion, and hence, no relief is due on

this claim.

      Finally, Appellant contends that trial counsel was ineffective in

presenting a character witness to testify to his reputation for non-violence.


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He claims that trial counsel had no reasonable basis for such a strategy, as it

resulted in the jury learning that he had committed a prior robbery.

Appellant’s brief at 12-13.

      Again, Appellant’s claim lacks merit. The jury heard that Appellant had

a prior adjudication that resulted in him being placed in a juvenile facility

where he met the murder victim. Trial counsel mitigated the prejudicial effect

of that evidence by eliciting from Appellant’s mother on redirect examination

that the prior adjudication was for a robbery that occurred when Appellant

was thirteen years old and involved a bicycle. As the PCRA court explained,

“the details of the crime as stated sounded like a kid being a kid rather than

a violent person who gets sent to a juvenile institution.” PCRA Court Opinion,

4/5/19, at 13. The court reasoned that since trial counsel could not prevent

the jury from hearing that Appellant had been detained as a juvenile, defense

counsel “framed [Appellant’s] record in a way that he sounded like a child

rather than a hardened offender.” Id. at 14. Moreover, counsel’s strategy

permitted Appellant to request a jury instruction on good character and

nonviolence. Id. Hence, the PCRA court found no support for Appellant’s

claim that trial counsel lacked a reasonable basis for his decision. We find no

error or abuse of discretion. No relief is due.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/19




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