J-S21002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

AARON VAUGHN HENDERSON

                            Appellant                    No. 15 WDA 2016


                 Appeal from the PCRA Order December 1, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0014877-2010


BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 18, 2017

        Aaron Vaughn Henderson appeals from the order, entered in the Court

of Common Pleas of Allegheny County, dismissing his petition filed pursuant

to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46 (“PCRA”). After

review, we affirm based on the opinion authored by the Honorable Anthony

M. Mariani.

        On February 29, 2012, the trial court sentenced Henderson to life

imprisonment after a jury convicted him of criminal homicide, 18 Pa.C.S.A. §

2501(a), and recklessly endangering another person, 18 Pa.C.S.A. § 2705.

Henderson filed a direct appeal to this Court on March 23, 2012, which

affirmed      his   judgment       of    sentence   on   December   24,    2013.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S21002-17



Commonwealth           v.   Henderson,         93   A.3d   519   (Pa.   Super.   2012)

(unpublished memorandum).             On February 24, 2014, this Court denied

Henderson’s application for reargument en banc.                  On March 26, 2014,

Henderson filed a petition for allowance of appeal, which our Supreme Court

denied on July 7, 2014. Commonwealth v. Henderson, 95 A.3d 276 (Pa.

2014).

       Henderson filed a timely PCRA petition on July 6, 2015. On November

6, 2015, after having received an answer to the petition from the

Commonwealth, the PCRA court issued a notice of intent to dismiss the

petition without a hearing pursuant to Pa.R.Crim.P. 907(a). On November

24, 2015, Henderson filed a reply to the notice to dismiss the petition

without a hearing.1 Following review of Henderson’s reply, the PCRA court

dismissed the petition.

       Henderson filed a timely notice of appeal on January 4, 2016, and

court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of
____________________________________________


1
  Henderson’s reply to the PCRA court’s Rule 907 notice of intent to dismiss
included an affidavit from his trial counsel, James A. Wymard, wherein
Wymard stated “[h]ad I been aware of the allocator grant in
[Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014) ], [], I would have
retained an expert and called that expert at trial.” Affidavit of James A.
Wymard, Esq., 11/23/15. In dismissing the petition, Judge Mariani noted
that “[t]hough trial counsel has submitted an affidavit explaining that he had
no reasonable basis for failing to call an expert witness on identification, this
[c]ourt notes [Henderson’s] trial was held between November 30, 2011 and
December 2, 2011. Pennsylvania law at that time absolutely barred expert
identification testimony. Trial counsel would not have been permitted to call
an expert on identification at that time.” PCRA Court Opinion, 6/22/16, at 3.



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J-S21002-17



on appeal.      On June 22, 2016, the PCRA court issued its Rule 1925(a)

opinion.

       On appeal, Henderson raises the following issue for our review:
       Did the [PCRA] court err when it denied without a hearing
       [Henderson’s] PCRA petition, which included the meritorious
       claim that [counsel] was ineffective for failing to call an expert
       witness on the topic of eyewitness identification?

Brief of Appellant, at 4.

       In his petition, Henderson claims that trial counsel rendered ineffective

assistance of counsel when he failed to call an eyewitness identification

expert to testify.2     In his Rule 1925(a) opinion, Judge Mariani applies the
____________________________________________


2
  We note Henderson raises only one issue in his PCRA petition: “Did the
[PCRA] court err when it denied without a hearing . . . [Henderson’s] claim
that counsel was ineffective for failing to call an expert witness on the topic
of eyewitness identification?” Not before us, nor do we comment upon, is
whether counsel was ineffective for failing to preserve an issue in
Henderson’s case that, at the time of his trial, was pending before our
Supreme Court on petition for allowance of appeal.              The trial court
considered the issue before it and cogently discussed the fact that even if
counsel had attempted to introduce the testimony of an eyewitness
identification expert, it would not have been admissible at the time of
Henderson’s trial. See Commonwealth v. Abdul-Salaam, 678 A.2d 342
(Pa. 1996) (eyewitness identification expert testimony per se inadmissible).
If counsel is not ineffective for failing to introduce such testimony, it defies
logic to credit that we could find counsel ineffective for failing to preserve
the same issue for appeal. See, e.g., Commonwealth v. Todaro, 701
A.2d 1343 (Pa. 1997) (citing Commonwealth v. Dunbar, 470 A.2d 74, 77
(Pa. 1983) (it is well established that the effectiveness of counsel is
examined under the standards existing at the time of performance rather
than at the point when an ineffectiveness claim is made). It is true that if
Henderson raised said issue on direct appeal and said direct appeal had been
pending at the time our Supreme Court decided Walker, supra
(admissibility of eyewitness identification expert testimony subject to
discretionary review of trial court), Henderson would be entitled to benefit
(Footnote Continued Next Page)


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J-S21002-17



appropriate standard for reviewing challenges to the effectiveness of trial

counsel, citing Strickland v. Washington, 466 U.S. 668 (1984) and

Commonwealth v. Dennis, 17 A.2d 297 (Pa. Super. 2011). Judge Mariani

notes that Pennsylvania law,3 at the time of Henderson’s trial, barred expert

                       _______________________
(Footnote Continued)

from the decision. It is also true that even if the direct appeal had been
pending and even if it had announced the issue decided by Walker, if such
an appeal were concluded before Walker was decided, Henderson would not
be entitled to relief. It is not appropriate to determine if defense counsel
was ineffective by reviewing the matter applying hindsight or the application
of post hoc reasoning. Nor is counsel charged with being prescient. Cf.
Commonwealth v. Rivera, 154 A.3d 370 (Pa. Super. 2017) (en banc)
(plea counsel was ineffective for failing to consult with defendant regarding
whether he wished to appeal the non-frivolous issue concerning the legality
of his negotiated sentence, not for failing to anticipate a change in the law).
3
  See Abdul-Salaam, 678 A.2d at 351, limited by Walker, 92 A.3d 766
(expert testimony concerning reliability of eyewitness identification not per
se impermissible but instead subject to discretionary review of trial court).
We note that the decision in Walker is prospective, not retroactive.
Walker, 92 A.3d at 793 (“[W]e hold that the admission of expert testimony
regarding eyewitness identification is no longer per se impermissible in our
Commonwealth.”) (emphasis added). Thus, Henderson is not entitled to
collateral relief in the form of a new trial. Our Supreme Court addressed the
issue of retroactive application of new law in Commonwealth v. Rainey:

      Under Pennsylvania law at the time of Appellant's trial, courts
      were prohibited from instructing juries on the possibility of
      parole. See Commonwealth v. Hughes, 865 A.2d 761, 810
      (Pa. 2004); Commonwealth v. Henry, 569 A.2d 929, 941 (Pa.
      1990) (stating that parole, pardon, and commutation should not
      enter into capital jury deliberations). It was not until 1994, three
      years after Appellant's trial, that the United States Supreme
      Court decided Simmons v. South Carolina, 512 U.S. 154
      (1994), and held that in certain circumstances juries should be
      instructed whether life sentences include the possibility of
      parole. Both the United States Supreme Court and this Court
      have held that Simmons announced a new rule of law that does
(Footnote Continued Next Page)


                                            -4-
J-S21002-17



identification testimony. The trial court would have been constrained to deny

any attempt to submit such evidence to the jury. As this Court cannot deem

counsel ineffective for failing to assert a meritless claim, Henderson’s claim

fails. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008).

      After careful review of the parties’ briefs, the record and the relevant

law, we agree with Judge Mariani’s analysis and affirm on the basis of his

opinion. We instruct the parties to attach a copy of Judge Mariani’s decision

in the event of further proceedings.

      Order affirmed.

      Judge Dubow joins this Memorandum.

      Judge Strassburger files a Dissenting Memorandum.




                       _______________________
(Footnote Continued)

      not apply retroactively. See O'Dell v. Netherland, 521 U.S.
      151 (1997) (holding that Simmons announced a new rule of law
      for which [habeas corpus] relief is not available retroactively);
      Commonwealth v. Duffey, 889 A.2d 56, 71 (Pa. 2005).
      Because counsel cannot be deemed ineffective for failing to
      predict a change in the law, the failure to request an instruction
      in this case does not constitute grounds for relief. Hughes, 865
      A.2d at 810; Commonwealth v. Christy, 656 A.2d 877, 889
      (1995).

Commonwealth v. Rainey, 928 A.2d 215, 242 (Pa. 2007).




                                            -5-
J-S21002-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2017




                          -6-
                                                                            Circulated 04/04/2017 03:20 PM




       IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                              CRIMINAL DIVISION




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                                                      )
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       This is a direct appeal wherein the petitioner appeals the denial of his pe<tltion

pursuant to the Post-Conviction Relief Act.     After a jury trial, the petitioner was found

guilty of Criminal Homicide, Recklessly Endangering Another Person and Violation of

the Uniform Firearms Act.       This Court sentenced the petitioner to a term of life

imprisonment and petitioner filed a timely appeal. On December 24, 2013, the Superior

Court, at 533 WDA 2012, affirmed the judgment of sentence.                On July 7, 2014,

Pennsylvania   Supreme Court denied petitioner's          petition for allowance        of appeal.

Petitioner filed a petition pursuant to the Post-Conviction        Relief Act claiming trial

counsel rendered ineffective assistance of counsel during the trial because he did not

present an expert witness on the topic of eyewitness identification.   This Court ultimately

denied the petition on the basis trial counsel could not have rendered ineffective

assistance of counsel on the basis proffered by petitioner because expert eyewitness

identification testimony was not admissible in Pennsylvania at the time of trial. It was

not until May 8, 2014 that the Supreme Court reversed prior law barring expert testimony
on the issue of identification at trial in Commonwealth v. Walker, 92 A.3d 766, 793 (Pa.

2014).      In Walker, the Pennsylvania Supreme Court specifically and unequivocally.

stated "[tlhus, we hold that the admission of expert testimony regarding eyewitness

identification is no longer per se impermissible in our Commonwealth. and join the

majority of jurisdictions which leave the admissibility of such expert testimony to the

discretion of the trial court (emphasis supplied)."



          It is well established that counsel is presumed effective and the petitioner bears the

burden of proving ineffectiveness. Commonwealth v. Cooper, 596 Pa. 119, 941 A.2d 655,

664 (Pa. 2007). Under the federal constitution, to obtain relief on a claim of ineffective

assistance of counsel, a petitioner must rebut that presumption and demonstrate that

counsel's performance was deficient, and. that such performance prejudiced                 him.

Strickland v. Washington, 466 U.S. 668, 687-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).     As set forth in Commonwealth v. Dennis, 17 A.2d 297, 301 (Pa.Super. 2011),

                 [i]n our Commonwealth, we have rearticulated the
                 Strickland Court's performance and prejudice inquiry as a
                 three-prong test. Specifically, a petitioner must show: (1)
                 the underlying claim is of arguable merit; (2) no reasonable
                 basis existed for counsel's action or inaction; and (3)
                 counsel's error caused prejudice such that there is a
                 reasonable probability that the result of the proceeding
                 would have been different absent                such error.
                 Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213
                 (Pa. 2001).



          The standard remains the same for claims under Pennsylvania and federal law. A

cJaim of ineffectiveness will be denied if the petitioner's evidence fails lo meet any of these

prongs. Id. at 221-222. Moreover, the credibility determinations of a trial court hearing a


                                                2
PCRA petition are binding on higher courts where the record supports such credibility

assessments.     Commonwealth     v. R. Johnson, 600 Pa. 329, 356-57, 966 A.2d 523, 539

(2009).




          The threshold inquiry in a claim of ineffective assistance of counsel is whether the

issue/argument/tactic    which counsel has forgone and which forms the basis for the

assertion of ineffectiveness    is of arguable merit. Commonwealth          v. Ingram, 404 Pa.

Super. 560, 591 A.2d 734 (Pa.Super. 1991).          Counsel cannot be considered ineffective

for failing to assert a meritless claim. Commonwealth v. Tanner. 600 A.2d 201 (Pa.Super.

1991).




          In this case, trial counsel did not render ineffective assistance of counsel at the

time of trial because any claim that trial counsel should have presented                  expert

identification testimony at the time of trial is meritless.     Even had trial counsel attempted

to admit expert testimony concerning          identification,    this Court would have been

constrained to deny those attempts because such evidence was not admissible. Though

trial counsel has submitted an affidavit explaining that he had no reasonable basis for

failing to call an expert witness on identification,          this Court notes Petitioner's trial

occurred between November 30, 2011 and December 2, 2011.                Pennsylvania law at that

time absolutely barred expert identification testimony.          Trial counsel would not have

been permitted to call an expert witness on identification at that time.         It was not until

May 8, 2014 that the Supreme Court altered the state of the law. Trial counsel was not




                                                3
even representing petitioner at that time. Therefore, trial counsel could not have been

ineffective for pursuing a meritless strategy.




        For the foregoing reasons, this Court's denial of the post-conviction should be

affirmed.




                                                 By the Court:



Date:




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