J-S14033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 RASHEEN RIVERS                          :
                                         :
                   Appellant             :   No. 2015 EDA 2017

                 Appeal from the PCRA Order May 22, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0006706-2012


BEFORE:    OTT, J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.:                            FILED APRIL 27, 2018

      Appellant, Rasheen Rivers, appeals from the order entered May 22,

2017, denying his first petition filed under the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      In August 2012, following an undercover investigation, Appellant was

arrested on numerous drug-related charges.       Notes of Testimony (N.T.),

1/10/13, at 113-32.    During his subsequent trial, Officer Kristine McAleer

identified Appellant as the individual who sold her cocaine in July 2012 and

who agreed to sell her cocaine in August 2012. Id. at 113, 129-30. Officer

McAleer testified that during her interactions with Appellant she observed

scars on his arms and hands. Id. at 122. Although she couldn’t remember

the clothes Appellant was wearing in July 2012, Officer McAleer commented

that “[i]n Narcotics we try to focus more on the things that can’t change, the



____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S14033-18



things that won’t go away and he can’t alter … the scars on his body were very

identifiable.” Id. at 140.

       After mentioning that she was able to identify Appellant through his burn

scars, the Commonwealth asked for a sidebar and made an oral motion for

Appellant to roll up his sleeves. Id. at 141. Appellant’s counsel objected to

the relevance. Id. at 142. The trial court overruled Appellant’s objection,

concluding that Appellant’s scarring was relevant to Officer McAleer’s

identification of Appellant, particularly after Appellant raised identification as

an issue in his opening argument. Id. at 142, 144. Nevertheless, the trial

court determined that photographic evidence would be more appropriate for

practical and evidentiary reasons. Id. at 145-46.

       The trial court called a recess for Appellant’s arms to be photographed.

Id. at 146. Thereafter, Officer McAleer was recalled to the stand to clarify

that she could see Appellant’s arms clearly on July 3, 2012. Id. at 151-52.

The Commonwealth then introduced the photographs of Appellant’s arms for

identification purposes after both counsel stipulated to their authenticity.1 Id.

at 153-54. Officer McAleer then testified that the photographs represented

how Appellant’s arms appeared on July 3, 2012. Id. at 155. The photographs




____________________________________________


1 Counsel stipulated “for the purpose of authentication … that these
photographs are fair and accurate depictions of how [Appellant’s] arms appear
today on January 10, 2013.” N.T., 1/10/13, at 153.



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were admitted into evidence and published to the jury without any further

objection. Id. 155-56.

        In January 2013, Appellant was convicted of possession with intent to

deliver a controlled substance and criminal attempt to deliver a non-controlled

substance.2 Thereafter, in March 2013, Appellant was sentenced to twenty-

five to sixty months of incarceration followed by five years of reporting

probation.

        On appeal, this Court affirmed Appellant’s judgment of sentence, and

his petition for appeal to the Pennsylvania Supreme Court was denied. See

Commonwealth v. Rivers, 104 A.3d 65 (Pa. Super. 2014) (unpublished

memorandum), appeal denied, 102 A.3d 985 (Pa. 2014). Appellant did not

petition for certiorari with the United States Supreme Court.

        In September 2015, Appellant timely and pro se filed a PCRA petition,

asserting that trial counsel was ineffective.       See Appellant’s PCRA Pet.

9/23/15.     The PCRA court appointed counsel, who submitted an amended

petition clarifying Appellant’s assertion that counsel was ineffective for

stipulating to the photographs of Appellant’s arms. See Appellant’s Am. PCRA

Pet., 1/12/17, at 1-2. The PCRA court conducted an evidentiary hearing, at

which Appellant claimed that trial counsel failed to give him any alternatives

to having photographs taken of his arms.         N.T., 5/19/17, at 9.   Appellant

testified that he did not know that photographs would be taken of his arms.
____________________________________________


2   35 Pa.C.S. §780-113(a)(30) and 18 Pa.C.S. § 901(a), respectively.


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Nevertheless, he admitted that his trial counsel eventually informed him of

the trial court’s order for the photographs after they were taken. Id. at 27,

30. Appellant also indicated that, during the court recess, his counsel told

him of his strategy to cross-examine Officer McAleer on her failure to mention

any scarring in her reports. Id. at 32. He testified to not knowing that his

trial counsel planned to agree to the photographs. Id. at 30. Appellant also

asserted that he asked his counsel to object to the admission of the

photographs. Id.

      Trial counsel also testified at the hearing. According to counsel, prior to

the hearing, he had formulated a strategy to argue mistaken identification:

      My strategy for defense as we went into trial was that the police
      only met him—the [Appellant] one time; that it was a rather quick
      interaction. And they sat on it for a few months. So I was going
      with mistaken identification; that they got the wrong guy.

Id. at 12.

      Regarding the photographs, trial counsel acknowledged that Appellant

did not want the photographs taken. Id. at 14. However, he explained to

Appellant that the photographs were court-ordered. Id. at 14-15. According

to counsel, he also explained to Appellant that the Commonwealth could either

use the photographs of Appellant in court or request Appellant to display his

arms before the jury. Id. at 14-15. Counsel believed that of the options, it

was in Appellant’s best interests to stipulate to the photographs. Id. at 17-

18.




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      Following the hearing, the PCRA court dismissed Appellant’s petition,

concluding that Appellant failed to “overcome the presumption of his trial

lawyer’s competence.”    See Order, 5/22/17, at 7-8 n.3.        Appellant timely

appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA

court issued a responsive opinion.

      On appeal, Appellant asks:

      1. Was the trial court in error for denying [Appellant’s] petition
         for Post-Conviction Relief as to whether trial counsel was
         ineffective for stipulating to photographs depicting scarring
         about [Appellant’s] hands and arms without consulting with
         and obtaining [Appellant’s] agreement as to the admission of
         said photographs?

See Appellant’s Brief at 8.

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record. Commonwealth v. Brown, 48 A.3d

1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995

A.2d 1184, 1189 (Pa. Super. 2010)).

      On   appeal,   Appellant   asserts   ineffective   assistance   of   counsel.

According to Appellant, counsel erred when he failed to consult with Appellant

prior to agreeing that the photographs could be taken of his arms.             See

Appellant’s Brief at 8, 11.   Moreover, according to Appellant, counsel also

erred when, without Appellant’s permission, counsel stipulated to the

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authenticity of the photographs.3          Id.   Appellant concludes that counsel’s

failure to properly consult with him was unreasonable and prejudicial, as

evidence of the scarring on his arms was “extremely detrimental” to

Appellant’s defense theory. Id. at 12.

       In order to be eligible for relief, a petitioner must establish that his

conviction resulted from the ineffectiveness of counsel, which “so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.” 42 Pa.C.S. § 9543 (a)(2)(ii). We presume

counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678 (2009). To

overcome this presumption, a petitioner must establish that: (1) the claim has

arguable merit; (2) counsel lacked a reasonable basis for his act or omission;

and (3) petitioner suffered actual prejudice.         Commonwealth v. Treiber,

121 A.3d 435, 445 (Pa. 2015). In order to establish prejudice, a petitioner

must demonstrate “that there is a reasonable probability that, but for

counsel's error or omission, the result of the proceeding would have been

different.” Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). A

claim will be denied if the petitioner fails to meet any one of these prongs.

See Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super 2016) (citing

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).

____________________________________________


3 Appellant appears to conflate two issues: (1) counsel’s stipulation to the
authenticity of the photographs taken of Appellants arms on the day of trial
and (2) the admission of the photographs as relevant evidence tending to
corroborate the identification testimony of Officer McAleer. See Pa.R.E. 401,
403, and 901.

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      First, we will address whether Appellant’s claim has arguable merit.

Essentially, Appellant asserts that counsel failed to properly consult with him

and advise him of developments related to his defense strategy.             See

Appellant’s Brief at 12 (citing in support Commonwealth v. Mason, 130 A.3d

601, 668 (Pa. 2015)).

      Our Pennsylvania Supreme Court has long recognized a narrow list of

important decisions, in the context of a criminal proceeding, that require

counsel to consult with and obtain consent from his or her client:

      An attorney undoubtedly has a duty to consult with the client
      regarding “important decisions,” including questions of
      overarching defense strategy. Strickland, 466 U.S., at 688, 104
      S.Ct. 2052. That obligation, however, does not require counsel to
      obtain the defendant's consent to “every tactical decision.” But
      certain decisions regarding the exercise or waiver of basic trial
      rights are of such moment that they cannot be made for the
      defendant by a surrogate. A defendant, this Court affirmed, has
      “the ultimate authority” to determine “whether to plead guilty,
      waive a jury, testify in his or her own behalf, or take an appeal.”
      Concerning those decisions, an attorney must both consult with
      the defendant and obtain consent to the recommended course of
      action.

Commonwealth v. Mason, 130 A.3d 601, 667 (Pa. 2015) (citing to Florida

v. Nixon, 125 S.Ct. 551, 560 (2004)) (internal citations omitted).

      This precedent aligns with our Pennsylvania Rules of Professional

Conduct, which recognize “a duty to gain the consent of a defendant regarding

the overarching objective or purpose of a defense,” while leaving with “counsel

the authority to control the many aspects involving strategy and tactics in

achieving those objectives.”      See Mason, 130 A.3d at 668 (citing


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Commonwealth v. Sam, 635 A.2d 603, 611-12 (Pa. 1993) (relying on

Pa.R.P.C 1.2, which provides that a “lawyer shall abide by a client's decisions

concerning the objectives of representation”).

      In the instant case, the record does not support Appellant’s assertion

that counsel failed to advise him of developments relating to his defense

strategy. Counsel did not dispute Appellant’s assertions that he did not inform

Appellant in advance that photographs would be taken of his arms during a

trial recess.     However, before trial resumed, counsel explained that the

pictures were court-ordered, that the pictures were the better option, and that

counsel intended to impeach Officer McAleer with her failure to document her

observations of Appellant’s scarring.

      Regarding Appellant’s argument that his prior consent was required, we

disagree.       After the court overruled counsel’s objections, evidence of

Appellant’s scarring was deemed admissible. Appellant had no fundamental

decision to make. Rather, Appellant was left with a mere tactical decision well

within counsel’s purview. Mason, 130 A.3d at 667-68.

      For these reasons, we conclude that Appellant’s claim lacks arguable

merit. Id. The lack of arguable merit is enough to deny Appellant’s petition.

Jarosz, 152 A.3d at 350. Nevertheless, we will briefly address the remaining

prongs of the ineffectiveness analysis. Id.

      Next,      Appellant   argues   that    counsel’s   tactical   decision   was

unreasonable. Appellant’s Brief at 8. Appellant baldy asserts that since the




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trial court’s decision so undermined counsel’s trial strategy, he should have

requested a continuance. See Appellant’s Brief at 11.

      When determining whether counsel’s performance lacked a reasonable

basis, this Court considers that:

      “… counsel's assistance is deemed constitutionally effective if he
      chose a particular course that had some reasonable basis
      designed to effectuate his client's interests.” Courts should not
      deem counsel's strategy or tactic unreasonable “unless it can be
      concluded that an alternative not chosen offered a potential for
      success substantially greater than the course actually pursued.”
      Also “[a]s a general rule, a lawyer should not be held ineffective
      without first having an opportunity to address the accusation in
      some fashion.... The ultimate focus of an ineffectiveness inquiry
      is always upon counsel, and not upon an alleged deficiency in the
      abstract.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (internal citations

omitted).

      Appellant has offered no support for his suggestion that counsel should

have requested a continuance and, thus, risks waiver. See Pa.R.A.P. 2119(a);

Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (stating, “where an

appellant brief fails to … develop an issue in any other meaningful fashion

capable of review, that claim is waived. It is not the obligation of the appellate

court to formulate [the] appellant’s argument for him.”).

      Nevertheless, we find Appellant’s suggestion unpersuasive.         Counsel

made a reasonable decision based on the limited options available to him, as

was made clear in the following testimony:

      I believe we got to the point where the Judge had ordered that
      either it's going to be an in -person exhibition of his arms or the

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      pictures. I thought it would be better for my client to have it be
      pictures rather than have him being forced possibly by Sheriffs to
      remove his shirt. I thought that would be more humiliating or -- I
      didn't like the fact of him being forced to do something in open
      Court, I thought the pictures would be, you know, more sanitary,
      not something that was forced to happen in front of the jury.

See N.T., 5/19/17, at 18.

      Clearly, counsel’s decision was taken in Appellant’s interest, intended to

give Appellant a more dignified appearance in court and not subject him to

the humiliation of disrobing in front of a room full of strangers.     Further,

Appellant has failed to explain how his suggested course of action - requesting

a continuance - would produce a more successful outcome. In the end, a

continuance would merely have postponed a decision on the limited options

available to Appellant.   Thus, Appellant has failed to prove that counsel’s

actions lacked a reasonable basis. Koehler, 36 A.3d at 132.

      Finally, we recognize Appellant’s assertion that the photographs were

“extremely detrimental” to counsel’s mistaken identification defense, thus

implying he suffered prejudice. Appellant’s Brief at 11-12. Undoubtedly, the

testimony of Officer McAleer, corroborated by the photographs, provided

compelling evidence of Appellant’s guilt.     However, the strength of this

evidence was not the result of any error by counsel. Therefore, Appellant

cannot establish prejudice. See Koehler, 36 A.3d at 132 (defining prejudice

in terms of “counsel’s error or omission”).




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     As Appellant has not satisfied any of the prongs for ineffectiveness of

counsel, the PCRA court did not err in denying Appellant’s PCRA petition.

Treiber, 121 A.3d at 445. Accordingly, no relief is due.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/18




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