J-S03031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JOHN DOUGLAS BITTING, VI

                            Appellant               No. 1297 EDA 2015


                  Appeal from the PCRA Order March 31, 2015
                in the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0001594-2010


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED JANUARY 22, 2016

        John Douglas Bitting, IV (“Appellant”), appeals from the order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

        On March 3, 2011, a jury convicted Appellant of burglary,1 robbery

(inflicts serious bodily injury),2 robbery (threatens serious bodily injury),3

aggravated assault,4 simple assault,5 and conspiracy to commit burglary6

____________________________________________


1
    18 Pa.C.S. § 3502(a).
2
    18 Pa.C.S. § 3701(a)(1)(i).
3
    18 Pa.C.S. § 3701(a)(1)(ii).
4
    18 Pa.C.S. § 2702(a)(1).
5
    18 Pa.C.S. § 2701(a)(1).
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stemming from a brutal, early-morning home invasion that occurred on

September 6, 2008. On May 26, 2011, the trial court sentenced Appellant to

an aggregate term of 21 to 42 years’ imprisonment.7           Appellant timely

appealed, and this Court affirmed the judgment of sentence on September

21, 2012.     On July 16, 2013, the Supreme Court of Pennsylvania denied

Appellant’s petition for allowance of appeal. Appellant did not seek review

by the Supreme Court of the United States.

        Appellant filed a timely PCRA petition on October 14, 2014.8 The PCRA

petition raised one issue for collateral review: a claim that trial counsel

provided ineffective assistance by failing to object to the admission of six (6)

photographs illustrating the victim’s injuries.    On October 16, 2014, the
                       _______________________
(Footnote Continued)
6
    18 Pa.C.S. § 903.
7
   Specifically, the trial court sentenced Appellant to 6 to 12 years’
imprisonment on the aggravated assault conviction, 4 to 8 years’
incarceration on the burglary conviction, 8½ to 17 years’ incarceration on
the robbery (inflicts serious bodily injury) conviction, 6 to 12 years’
incarceration on the robbery (threatens serious bodily injury) conviction
concurrent to the first burglary conviction, and 2½ to 5 years for the
conspiracy conviction.
8
   Appellant’s judgment of sentence did not become final, and his PCRA
limitations period did not commence, until October 14, 2013, at the
expiration of his time for seeking review with the Supreme Court of the
United States. See 42 Pa.C.S. § 9545(b)(1) (PCRA petitions must be filed
within one year of the date the judgment of sentence becomes final); 42
Pa.C.S. § 9545(b)(3) (judgment becomes final at the conclusion of direct
review or at the expiration of time to seek review); U.S.Sup.Ct.Rule 13.1
(allowing 90 days for the filing of a writ of certiorari in the Supreme Court of
the United States). Accordingly, Appellant timely filed his October 14, 2014
PCRA petition.



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PCRA court appointed counsel. On January 20, 2015, PCRA counsel filed a

Turner9/Finley10 no merit letter and a petition to withdraw as counsel. On

January 29, 2015, Appellant filed a pro se Amended PCRA Petition, in which

he raised the additional claim that trial counsel was ineffective for failing to

object when the prosecutor asked the trial court to direct Appellant to stand

to demonstrate his height to the jury. On January 30, 2015, the PCRA court

directed PCRA counsel to address the issue raised by Appellant’s pro se

Amended PCRA Petition.

        On February 3, 2015, Appellant filed a request for an extension of time

in which to respond to PCRA counsel’s Turner/Finley letter. On February

13, 2015, PCRA counsel advised the PCRA court by letter that the issue

Appellant raised in his pro se Amended PCRA Petition lacked merit.           On

February 18, 2015, the PCRA court issued a notice of intent to dismiss the

PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907, which notice

allowed 30 days for Appellant to respond.11

        On February 27, 2015, Appellant filed an unsolicited memorandum of

law in support of his Amended PCRA petition.        Thereafter, on March 24,

____________________________________________


9
    Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
10
     Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
11
   Also on February 18, 2015, Appellant filed a second request for additional
time in which to respond to PCRA counsel’s Turner/Finley letter.




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2015, Appellant filed a response to the PCRA court’s Rule 907 notice.           In

addition to his two previously-raised issues, Appellant’s response to the Rule

907 notice raised three additional issues.12

        On March 31, 2015, the PCRA court issued an order denying and

dismissing the PCRA petition.13                On April 29, 2015, Appellant timely

appealed.      Appellant complied with the PCRA court’s Pa.R.A.P. 1925(b)

order, and the PCRA court filed its 1925(a) Opinion on June 1, 2015.

        Appellant raises the following issues for review:

        [1]. Because the only question in this case was who wore the
        mask, [Appellant’s] position is that trial counsel was ineffective
        for not objecting to the admission and publication of (6) 8½’’ x
        11’’ colored photographs depicting, at close view, the victim[’]s
        head and face while laying in a hospital bed which served only to
        inflame the minds and passions of the jury.
____________________________________________


12
     The trial court explained the additional claims as follows:

        The first additional issue [Appellant] raised consisted of a
        cumulative prejudice argument. Although he claimed that his
        two previous issues were sufficient in themselves to warrant
        PCRA relief, he suggested in the alternative that if they were not,
        the cumulative prejudice ensuing from both of these alleged
        instances of ineffective assistance would overcome any
        deficiencies in the claims individually. Second, [Appellant] asked
        the [c]ourt to stay the Department of Corrections’ Act 84
        deductions from his inmate prison account pending the
        finalization of his PCRA appeal. Finally, [Appellant] requested
        “complete discovery” in his case.

1925(a) Opinion, p. 3.
13
   The March 31, 2015 order addressed the three “new” issues Appellant
raised in his Rule 907 response.




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      [2]. Because [Appellant] is only 5’5” and this case centered on
      the identity of two intruders the victim consistently described as
      standing 6’0” and 6’2” to 6’3”, [Appellant’s] position is that his
      due process right to a fair trial was violated by trial counsel
      ineffectiveness in failing to object to the prosecutor compelling
      [Appellant] to stand before the jury for a suggestive
      demonstration.

      [3.] To the extent that any of [Appellant’s] isolated points are
      (somehow) rejected for lack of prejudice, then [Appellant’s]
      position is that the cumulative error or prejudice arising from the
      two constitutional violations warrant a new trial.

Appellant’s Brief, p. 6.

      Our standard of review is well-settled.     “In reviewing the denial of

PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa.2014) (internal quotation marks and 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. Barndt, 74

A.3d 185, 191-192 (Pa.Super.2013) (internal quotations and citations

omitted). “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. Spotz, 84 A.3d 294,

311 (Pa.2014) (citation omitted).     “It is well-settled that a PCRA court’s

credibility determinations are binding upon an appellate court so long as

they are supported by the record.” Commonwealth v. Robinson, 82 A.3d

998, 1013 (Pa.2013) (citation omitted).      However, this Court reviews the




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PCRA court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d

1080, 1084 (Pa.Super.2014) (citation omitted).

        Pennsylvania courts apply the Pierce14 test to review PCRA claims of

ineffective assistance of counsel:

        When a petitioner alleges trial counsel’s ineffectiveness in a
        PCRA petition, he must prove by a preponderance of the
        evidence that his conviction or sentence resulted from ineffective
        assistance of counsel which, in the circumstances of the
        particular case, so undermined the truth-determining process
        that no reliable adjudication of guilt or innocence could have
        taken place. We have interpreted this provision in the PCRA to
        mean that the petitioner must show: (1) that his claim of
        counsel’s ineffectiveness has merit; (2) that counsel had no
        reasonable strategic basis for his action or inaction; and (3) that
        the error of counsel prejudiced the petitioner-i.e., that there is a
        reasonable probability that, but for the error of counsel, the
        outcome of the proceeding would have been different. We
        presume that counsel is effective, and it is the burden of
        Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).             The petitioner bears the burden of

proving all three prongs of this test.         Commonwealth v. Meadows, 787

A.2d 312, 319-320 (Pa.2001).               “If an appellant fails to prove by a

preponderance of the evidence any of the Pierce prongs, the Court need not

address the remaining prongs of the test.” Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).



____________________________________________


14
     Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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      Appellant claims that trial counsel provided ineffective assistance by

failing to object to the admission of photographs illustrating the victim’s

injuries. See Appellant’s Brief, pp. 22-30. We disagree.

      “[Appellate courts] will affirm a trial court’s admission of photographs

absent an abuse of discretion.”      Commonwealth v. Johnson, 42 A.3d

1017, 1033 (Pa.2012).

      [Courts] employ a two-part test to determine if allegedly
      inflammatory photographic evidence is admissible.          First,
      assuming the photographs are relevant, the court must decide if
      the photographs are inflammatory. If the photographs are not
      inflammatory, they are admissible. On the other hand, if the
      photographs are inflammatory, the court must balance the
      evidentiary need for the photographs against the likelihood they
      will inflame the minds and passions of the jurors. Admission of
      photographic evidence is proper where the evidentiary value
      exceeds the inflammatory danger.

Commonwealth v. Levanduski, 907 A.2d 3, 29 (Pa.Super.2006) (internal

citations and quotations omitted).

      Here, the PCRA court found that this claim lacked merit, explaining as

follows:

      With respect to [Appellant’s] issue concerning the admission of
      photographs, we conclude that the photographs at issue were
      not inflammatory. Alternatively, we conclude that they were of
      such essential evidentiary value that their need clearly
      outweighed the likelihood of inflaming the minds and passions of
      the jurors. [Appellant] was charged with Criminal Attempt to
      Commit First-Degree Murder, a specific intent crime. Thus, . . .
      the photographs served the essential evidentiary purpose of
      permitting the jury to assess whether the Commonwealth had
      established that [Appellant] acted with the intent to kill his
      victims. There was no error in admitting these photographs and
      consequently there was no ineffectiveness on the part of trial


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      counsel in not objecting to them. Counsel cannot be deemed
      ineffective for failing to raise a meritless claim.

See PCRA Court Rule 907 Notice of Intent to Dismiss, February 18, 2015, p.

1 n.1 (internal citations omitted).

      We agree with the PCRA court’s analysis of this issue and its

conclusion that this claim provides Appellant with no relief.

      Appellant next alleges trial counsel provided ineffective assistance of

counsel by failing to object to the prosecution’s request that Appellant stand

to demonstrate his height to the jury.      See Appellant’s Brief, pp. 31-38.

Appellant claims that “trial counsel’s failure to object not only created an

indelible impression in the jurors[’] minds, but also allowed the jury to

engage in an impermissible speculation.” Id. at 32. Appellant is incorrect.

      Compelling a defendant to stand before the jury is not testimonial in

nature.     Commonwealth         v.   Richbourg,    394    A.2d   1007,   1010

(Pa.Super.1978).     As such, the Fifth Amendment right against self-

incrimination does not protect a defendant from such an action.             Id.

Therefore, this Court has ruled frivolous the contention that defendants are

prejudiced by being forced to stand before the jury. Id. (“Appellant . . . is in

the ‘spotlight’ merely by sitting at the defense table. Having him stand to

allow a better view is no more prejudicial than removing a mask from his

face or having him wear a piece of apparel.”).

      Accordingly, the trial court would properly have overruled any

objection to Appellant standing before the jury, and trial counsel was not



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ineffective for failing to make such an objection. See Commonwealth v.

Koehler, 36 A.3d 121, 144 (Pa.2012) (“[C]ounsel cannot be deemed

ineffective for failing to pursue a meritless claim.”). This claim lacks merit.

      Lastly, Appellant claims cumulative error or prejudice arising from his

claims entitles him to relief.     See Appellant’s Brief, pp. 39-40.       He is

incorrect.

      Our Supreme Court “has repeatedly held that no number of failed

ineffectiveness claims may collectively warrant relief if they fail to do so

individually.   Thus, to the extent claims are rejected for lack of arguable

merit, there is no basis for an accumulation claim.”       Commonwealth v.

Hanible, 30 A.3d 426, 483 (Pa.2011).

      Here, each claim lacks arguable merit.      Accordingly, Appellant is not

entitled to relief for any alleged cumulative error resulting from his claims.

See Hanible, 30 A.3d at 483.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2016




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