J-A05030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN LEWIS RUSH                            :
                                               :
                       Appellant               :   No. 339 WDA 2018

                 Appeal from the PCRA Order February 9, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0002090-2014


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                                 FILED MAY 10, 2019

       John Lewis Rush (“Appellant”) appeals from the order denying his

petition for relief filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541–9546. We affirm.

       Underlying this appeal are Appellant’s December 5, 2014 “convictions of

four counts of aggravated assault and one count each of disarming a law

enforcement officer; torture of a police animal; cruelty to animals; resisting

arrest; escape; possession of a weapon; and flight to avoid apprehension,

trial, or punishment.”1 Commonwealth v. Rush, 162 A.3d 530, 534 (Pa.

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1 18 Pa.C.S. §§ 2702(a)(3), 5104.1(a), 5511.2(b), 5511(a)(2.1)(i)(A), 5104,
5121(a), 907(b), and 5126(a), respectively.

  On direct appeal, a panel of this Court set forth the trial court’s factual
summary of this case. See Commonwealth v. Rush, 162 A.3d 530 (Pa.
Super. 2017) (quoting Trial Court Opinion, 2/16/16, at 3–4, 6–10).
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Super. 2017).      The trial court sentenced Appellant on March 10, 2015, to

incarceration for an aggregate term of fourteen years and ten months to

thirty-six years and six months, followed by eight years of probation. Id. at

536. Appellant filed post-sentence motions, which the trial court denied on

April 16, 2015. Id. Appellant timely filed a notice of appeal. We affirmed the

judgment of sentence, and the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal. Id. at 546, appeal denied, 170

A.3d 1049 (Pa. 2017).

       Appellant filed a pro se petition for PCRA relief on November 2, 2017.

Following the appointment of counsel, who filed a Turner/Finley2 “no merit”

letter, the PCRA court permitted counsel to withdraw and dismissed

Appellant’s petition. Order, 1/3/18; Order, 2/9/18. Appellant filed a timely

pro se notice of appeal and a pro se statement of errors pursuant to Pa.R.A.P.

1925(b).     We instructed the trial court to conduct a Grazier3 hearing to

determine if Appellant wanted to proceed pro se. Order, 3/23/18.     The trial

court appointed standby counsel and conducted a hearing, at which Appellant

requested to proceed with appointed counsel. Order, 4/9/18; N.T., 4/20/18,




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2  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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at 3. Counsel filed an amended statement of errors on July 26, 2018, and the

PCRA court filed an opinion on August 22, 2018.

       On    appeal,    Appellant     raises   the   following   questions   for   our

consideration:

       1.     Whether trial counsel was ineffective for failing to request a
       Kloiber[4] instruction where Deputy John Herb did not have a
       good opportunity to view the suspect and his identification was
       qualified by inconsistencies between the description of the suspect
       and [Appellant’s] appearance?

       2.     Whether direct appeal counsel was ineffective for failing to
       raise a challenge to the [trial c]ourt’s rulings on statements
       attributed to Courtney Pitts that allowed an out of court
       identification of [Appellant]?

       3.    Whether trial counsel was ineffective for failing to litigate a
       motion for change of venue when the record shows that multiple
       jurors expressed knowledge of the case and sensitivity to dogs?

Appellant’s Brief at 3.5

       Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. Commonwealth v. Staton, 184 A.3d



____________________________________________


4  Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). A Kloiber charge
instructs the jury that an eyewitness’s identification should be viewed with
caution where the eyewitness: (1) did not have an opportunity to clearly view
the defendant; (2) equivocated on the identification of the defendant; or (3)
had a problem making an identification in the past. Commonwealth v.
Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008).

5 We note that Appellant’s brief does not include a summary of the argument,
in violation of Pa.R.A.P. 2111(a)(6) and 2118. Because this omission does
not hamper our review, we decline to quash.

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949 (Pa. 2018). We consider the record in the light most favorable to the

prevailing party in the PCRA court. Commonwealth v. Mason, 130 A.3d

601, 617 (Pa. 2015). We grant great deference to the PCRA court’s findings

that are supported in the record and will not disturb them unless they have

no support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      Appellant’s issues present claims of ineffective assistance of counsel. A

PCRA petitioner alleging ineffectiveness of his counsel will be granted relief

only if he is able to prove that, “in the circumstances of [his] particular case,”

the truth-determining process was undermined to the extent “that no reliable

adjudication of guilt or innocence could have taken place.”           42 Pa.C.S.

§ 9543(a)(2)(ii). The law presumes that counsel was effective, and it is the

petitioner’s burden to prove the contrary. Commonwealth v. Perez, 103

A.3d 344, 348 (Pa. Super. 2014).         To prevail on a claim of ineffective

assistance of counsel, a PCRA petitioner must plead and prove by a

preponderance of the evidence that: (1) the underlying legal claim has

arguable merit; (2) counsel had no reasonable basis for acting or failing to

act; and (3) the petitioner suffered resulting prejudice. Commonwealth v.

Baumhammers, 92 A.3d 708, 719 (Pa. 2014) (citing Commonwealth v.

Pierce, 527 A.2d 973, 975–976 (Pa. 1987)). A petitioner must prove all three

factors of the Pierce test or the claim fails. Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012).        In addition, on appeal, a petitioner must


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adequately discuss all three factors of the Pierce test, or the appellate court

will reject the claim. Commonwealth v. Reyes–Rodriguez, 111 A.3d 775,

780 (Pa. Super. 2015) (citation omitted).        Counsel will not be deemed

ineffective for failing to assert a meritless claim. Commonwealth v. Roney,

79 A.3d 595, 604 (Pa. 2013). Moreover:

      to satisfy the prejudice prong, it must be demonstrated that,
      absent counsel’s conduct, there is a reasonable probability that
      the outcome of the proceedings would have been different.
      Commonwealth v. Charleston, 94 A.3d 1012, 1019
      (Pa.Super.2014). If it has not been demonstrated that counsel’s
      act or omission adversely affected the outcome of the
      proceedings, the claim may be dismissed on that basis alone, and
      the court need not first decide whether the first and second prongs
      have been met.

Perez, 103 A.3d at 348.

      Appellant first maintains that trial counsel was ineffective for failing to

request a jury instruction pursuant to Commonwealth v. Kloiber, 106 A.2d

820 (Pa. 1954). Appellant’s Brief at 10. Appellant argues “the trial testimony

demonstrates that [Allegheny County] Deputy [Sheriff John] Herb was not

able to positively [identify] the suspect because he did not have a clear view

of the person and his description of the suspect was qualified by multiple

inconsistencies.” Id. at 12. According to Appellant, his Kloiber argument

has arguable merit because “Deputy Herb acknowledged that he could not

positively [identify] the suspect.” Id. Appellant also contends there was “no

reasonable strategic basis for failing to request the cautionary instruction”

given that trial counsel “made a great effort to . . . advance the defense that


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Deputy Herb did not encounter . . . Appellant on the street.” Id. Finally,

Appellant argues that he “was prejudiced by counsel’s error” because the jury

was not instructed to receive Deputy Herb’s testimony with caution. Id. at

12–13.

     The PCRA court rejected this claim with the following analysis:

           Where the witness is not in a position to clearly
           observe the assailant, or he is not positive as to
           identity, or his positive statements as to identity are
           weakened by qualification or by failure to identify
           defendant on one or more prior occasions, the
           accuracy of the identification is so doubtful that the
           [c]ourt should warn the jury that the testimony as to
           identity must be received with caution.

     Commonwealth v. Kloiber, 106 A.2d 820, 826–[8]27 (Pa. 1954).
     Appellant asserts that Deputy Herb “did not have a good
     opportunity to view Appellant and the Detective’s identification
     was qualified by inconsistences between the description of the
     suspect and Appellant’s appearance.” To the contrary, Deputy
     Herb was part of a unit specifically assigned to locate Appellant on
     the night in question. He and his unit had been briefed on
     Appellant’s appearance and attire as well as his likely destination.
     Upon observing Appellant, Deputy Herb initiated a conversation
     with Appellant from which Appellant fled. Deputy Herb radioed
     his unit regarding this encounter with Appellant, the individual
     who was being sought that night. Ultimately, Appellant was
     located in the basement of a nearby building. Deputy Herb
     consistently testified that Appellant was a light[-]skinned black
     male between 5’9” and 6’1” in height. Deputy Herb observed
     Appellant both on the street and in the basement, and consistently
     identified Appellant as his assailant.

           A Kloiber instruction is warranted:

           where a witness: (1) was not in a position to clearly
           observe the defendant, or is not positive as to
           identity; (2) equivocated on the identification; or (3)
           failed to identify the defendant on prior occasions.


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     Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010). As none of
     these criteria applies, Appellant was not entitled to a Kloiber
     instruction[,] and counsel was not ineffective for failing to request
     one.

PCRA Court Opinion, 8/22/18, at 4 (brackets in original omitted). We agree

with the PCRA court that none of these circumstances existed in this case.

     At trial, Deputy Herb testified that, on January 28, 2014, he was a

member of the fugitive squad assigned to locate Appellant and serve him with

an arrest warrant for a violation of his probation. N.T., 12/8/14, at 50–52.

Deputy Herb and the other squad members received information on January

28, 2014, that Appellant was homeless and walking to a residence in the

Lawrenceville section of Pittsburgh. Id. at 52. Deputy Herb and the squad

members began searching the Lawrenceville area; they had “a picture of

[Appellant] and a rough estimate on height and weight.” Id. at 53.

     On Butler Street, Deputy Herb “noticed a man roughly the same height;

[who] appeared to be homeless carrying garbage bags; [wearing] a lot of

layers of clothing[.]” N.T., 12/8/14, at 53. Deputy Herb approached Appellant

and asked his name; Appellant pulled down a mask or scarf, thereby exposing

his face to Deputy Herb, and replied, “John.” Id. at 54–55. Although Deputy

Herb could not identify Appellant from a distance, upon seeing Appellant’s

face, Deputy Herb “knew it was [he]” and told Appellant he was under arrest.

Id. at 55. Deputy Herb described the physical altercation that then occurred

between himself and Appellant. Id. at 56–60. Eventually, Appellant fled and




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a foot-chase ensued, during which Deputy Herb lost sight of Appellant. Id. at

60–62.

       After receiving information about a 911 call regarding a suspicious

person in a home at 3701 Butler Street, Deputy Herb and other law

enforcement personnel went to the residence. N.T., 12/8/14, at 64–65, 91.

Once the suspect was in custody,6 Deputy Herb identified the suspect as

Appellant. Id. at 65–66. Moreover, Deputy Herb identified Appellant in the

courtroom as the man he encountered on January 28, 2014. Id. at 63–64.

Contrary to Appellant’s argument, Deputy Herb was unshaken in his

identification of Appellant. Id. at 123.

       Upon review, we conclude the record supports the PCRA court’s

determination that a Kloiber instruction was not warranted; we further

conclude that its determination was without error. Staton, 184 A.3d 949.

Considering the record in the light most favorable to the Commonwealth, the

evidence was sufficient to establish that Deputy Herb (1) was in a position to

observe Appellant clearly and was positive as to Appellant’s identity; (2) did

not equivocate on the identification; and (3) did not fail to identify Appellant

on prior occasions. Jones, 954 A.2d at 1198. Any inconsistency between



____________________________________________


6  Officer Phillip Lerza and his police dog, Rocco, located Appellant in the
basement of the residence. Appellant attacked Rocco with a knife, fatally
wounding him. Appellant also attacked Officer Lerza and Officer Novak,
injuring both of them. Commonwealth v. Rush, 162 A.3d 530, 535–536
(Pa. Super. 2017).

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Deputy Herb’s testimony regarding what Appellant was wearing when

Deputy Herb first encountered Appellant on Butler Street and when

Deputy Herb identified Appellant at 3701 Butler Street was for the jury to

resolve. N.T., 12/8/14, at 55, 62, 67–68, 75, 78, 92, 106–107. Furthermore,

any inconsistency between Deputy Herb’s testimony and police reports

regarding Appellant’s location when Deputy Herb first encountered him was

for the jury to resolve. Id. at 71, 73, 104–105, 113–114, 118–119, 121,

Commonwealth Exhibit 3, Defense Exhibits D, F.7

       In light of Deputy Herb’s identification testimony, Appellant was not

entitled to a Kloiber instruction. See Commonwealth v. Upshur, 764 A.2d

69, 77 (Pa. Super. 2000) (explaining that identification testimony need not be

received with caution where it is positive, unshaken, and not weakened by a

prior failure to identify). Thus, any such request would have been meritless.

As trial counsel is not ineffective for failing to assert a meritless claim, Roney,

79 A.3d at 604, the PCRA Court properly denied relief on Appellant’s Kloiber-

based ineffectiveness claim.

       Next, Appellant contends that direct-appeal counsel was ineffective for

failing to challenge the trial court’s admission of statements attributed to


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7 Likewise, we reject Appellant’s argument regarding inconsistencies between
Deputy Herb’s testimony and the arrest warrant regarding Appellant’s skin
color and height. Such inconsistencies were also for the jury to resolve. N.T.,
12/8/14, at 78, 80–82, 103, 119, Defense Exhibit B.



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Appellant’s girlfriend, Courtney Pitts (“Ms. Pitts”). Appellant’s Brief at 13.8

The Commonwealth argues that Appellant has waived this ineffectiveness

claim.   According to the Commonwealth, “[Appellant] never made such an

argument to the PCRA court, arguing in his PCRA petition only that his trial

counsel was ineffective for failing to call Pitts to testify on his behalf and that

this failure somehow allowed the prosecution to present hearsay testimony.”

Commonwealth’s Brief at 18.

       “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”                 Pa.R.A.P. 302(a).   Furthermore, the

Pennsylvania Supreme Court has stressed that:

       a claim not raised in a PCRA petition cannot be raised for the first
       time on appeal. We have reasoned that [p]ermitting a PCRA
       petitioner to append new claims to the appeal already on review
       would wrongly subvert the time limitation and serial petition
       restrictions of the PCRA.

Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004).

       Our review of the record indicates that Appellant did, in fact, raise this

ineffectiveness claim in his pro se PCRA petition. PCRA Petition, 11/2/17, at

¶ 7, item (8). Thus, we decline to find waiver.

       This issue stems from the Commonwealth questioning Lieutenant Jack

Kearney on rebuttal about information he learned from Ms. Pitts to explain


____________________________________________


8  Attorney Aaron D. Sontz of the Allegheny County Office of the Public
Defender represented Appellant through the filing of post-sentence motions.
Thereafter, Allegheny County Public Defender Attorney Elliot Howsie
represented Appellant as direct appeal counsel.

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how the police conducted the search for Appellant. N.T., 12/12/14, at 791–

792.    On appeal, Appellant acknowledges that out-of-court “statements

offered to explain a course of police conduct are not hearsay.” Appellant’s

Brief at 13 (citing Commonwealth v. Cruz, 414 A.2d 1032, 1035 (Pa.

1980)). Appellant argues, however, that the “course of conduct doctrine does

not apply to out of court identifications.” Id. According to Appellant, out-of-

court identifications are admissible hearsay only if the declarant testifies at

trial. Id. at 14 (citing Pa.R.E. 803.1). Appellant challenges the trial court’s

ruling as the admission of hearsay, not course-of-police-conduct evidence,

because Ms. Pitts did not testify at trial.   Id. at 14–15. In support of his

position, Appellant relies on Commonwealth v. Palsa, 555 A.2d 808 (Pa.

1989), and Commonwealth v. Dent, 837 A.2d 571 (Pa. Super. 2003), which

“analyzed the tension between ‘course of conduct’ testimony and inadmissible,

hearsay identifications.” Appellant’s Brief at 14. Appellant concludes that his

underlying argument has merit, direct appeal counsel lacked a reasonable

strategic basis for failing to raise this claim, and, as a result, appellate

counsel’s ineffectiveness prejudiced Appellant. Id. at 15–16.

       The PCRA court rejected this claim with the following analysis:

       [Ms.] Pitts, Appellant’s girlfriend at the time, was not called to
       testify regarding information she gave the police to assist them in
       identifying Appellant.     However, her statements regarding
       Appellant’s appearance, his location and objects in his possession
       were not admitted for the truth of the matter asserted, but rather
       to explain why Deputy Herb initially engaged Appellant.




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            Regardless, to prevail on an ineffective assistance of counsel
      claim, Appellant must show actual prejudice, “an actual adverse
      effect on the outcome of the proceedings.” Commonwealth v.
      Spotz, 84 A.3d 294, 315 (Pa. 2014). Deputy Herb testified
      credibly that he had a photograph of Appellant prior to
      encountering him on the street. Deputy Herb further testified that
      he positively identified Appellant from that photograph after
      Appellant removed an article of clothing obscuring his face.
      Appellant identified himself to the Deputy as John. As Appellant
      fled, Deputy Herb fired his [T]aser at Appellant. Those [T]aser
      wires were recovered at the front doorway of the apartment
      building where Appellant was later located. As Appellant was
      being removed from the basement of the apartment building,
      Deputy Herb again positively identified him. Against this tidal
      wave of evidence, Appellant is unable to establish that any
      corroborative hearsay statements had an actual adverse effect on
      the proceedings.

PCRA Court Opinion, 8/22/18, at 4–5.

      Upon review, we conclude the record supports the PCRA court’s

determination that Appellant failed to establish prejudice; we further conclude

that this determination is free of legal error. Staton, 184 A.3d 949. The

record indicates that the prosecutor was the first person to raise the

relationship between Ms. Pitts and the challenged evidence; the prosecutor

did so while questioning Appellant on cross-examination.        N.T. (Excerpt),

12/11/14, at 44. When defense counsel objected to “[f]acts not in evidence,”

the prosecutor explained that she would “bring it in rebuttal,” and the trial

court overruled the objection. Id. at 44–45.

      Testifying on rebuttal, Lieutenant Kearney explained that he first met

Ms. Pitts at the Zone 3 police station on January 28, 2014. N.T. (Excerpt),

12/12/14, at 7, 13–14. Lieutenant Kearney interviewed Ms. Pitts and, based


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on the information she provided, he “directed the detectives to split up and

cover the geographic area from South Side from the Giant Eagle on

Wharton . . . Street to a residence located . . . [at] 5120 Lotus Way in

Lawrenceville.”   Id. at 14.    Contrary to the prosecutor’s intention and

Appellant’s suggestion, Lieutenant Kearney did not testify as to the particulars

of Ms. Pitts’ statements. Rather, he explained what actions he and the squad

members took based on the information he received from Ms. Pitts. Id. at

13–15.

      Furthermore, the     record belies Appellant’s statements that (1)

Lieutenant Kearney “explained that he relayed the information he received

from Ms. Pitts to Deputy Herb,” and (2) “Detective Ninehouser’s testimony

also shows that he was aware of the description provided by Ms. Pitts.”

Appellant’s Brief at 15. Lieutenant Kearney testified only that he interviewed

Ms. Pitts and then directed the fugitive squad members where to search for

Appellant based on the information he received from Ms. Pitts. N.T. (Excerpt),

12/12/14, at 13–15.     Without any reference to a description of Appellant,

Detective Ninehouser testified that the squad members received “information

that [Appellant] would potentially be walking through the Lawrenceville area,”

so they “split up and went different directions.” N.T., 12/11/14, at 513.

      Here, the PCRA court determined that Appellant failed to establish

prejudice, and we agree. Additionally, based on our review of the record, we

conclude that Appellant’s underlying argument lacks merit. Ms. Pitts provided


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information regarding Appellant’s appearance and location. However, nothing

in the record indicates—and Appellant does not argue—that Ms. Pitts’ out-of-

court statements implicated Appellant in criminal conduct.             Moreover,

Lieutenant Kearney did not testify to the full and explicit statements given by

Ms. Pitts. Compare Palsa, 555 A.2d at 119 (explaining that trooper testified

to “full and explicit statements and “specific assertions of [defendant’s]

criminal conduct” made by informant in out-of-court statement to police), and

Dent, 837 A.2d at 581 (“[Dent’s] sister’s out-of-court statement directly

incriminated [Dent] and buttressed the Commonwealth’s case for identifying

[Dent] as the perpetrator of the offense.”).9 Indeed, none of the witnesses

identified by Appellant as testifying to Ms. Pitts’ statements actually did so.

Considering the record in the light most favorable to the Commonwealth,

Appellant’s underlying claim lacks merit; therefore, his derivative claim that

direct appeal counsel was ineffective fails.

       Finally, Appellant argues that trial counsel was ineffective for failing to

litigate a motion for change of venue. Appellant’s Brief at 16. According to


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9  Unlike the case at hand, Dent involved a nonjury trial. The Dent Court
ruled that “the identification statement of [Dent’s] sister was inadmissible
hearsay included in Officer Marko’s testimony.” Dent, 837 at 582. It
concluded, however, that “the guilty verdict alone [was] insufficient to
overcome the presumption that the court did not regard the prejudicial
identification statement as substantive evidence of [Dent’s] guilt.” Id.
Indeed, “the trial court demonstrated it had considered the police officer’s
testimony strictly as ‘course of conduct’ evidence.” Id. at n.2.



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Appellant, trial counsel filed a pretrial motion for change of venue based on

prejudicial pretrial publicity, the passing of “Rocco’s Law”10 while Appellant’s

case was pending, and comments about the case by the district attorney,

members of the judiciary, and the Pittsburgh mayor.       Id. at 17–18. Trial

counsel withdrew the motion after the trial court conducted a test panel voir

dire. Id. at 18. Appellant contends that a change of venue was warranted

because the record shows that “out of 67 interviewed jurists, 23 advised that

they had knowledge of the case and 33 indicated that they were sensitive to

dogs.” Id. at 19 (citing Omnibus Pretrial Motion, 6/25/14, at Appendix A).11

Appellant concludes that his underlying issue has arguable merit, trial counsel

lacked a reasonable strategy for withdrawing the pretrial motion, and

counsel’s ineffectiveness resulted in prejudice. Id. at 18–19.

       In response, the Commonwealth notes that Appellant’s “trial did not

take place until December 2014, meaning that the bulk of the complained-of

publicity took place nearly a year prior to the jury being empaneled.”

Commonwealth’s Brief at 25. Additionally, the Commonwealth points out that


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10 Rocco’s Law, named for the police dog in this case, classified the hurting
or killing of a police dog as a second-degree felony. 3 P.S. § 459-602(b).

11 Appellant argues the fact that juror number six “cried when the defense
played a recording in which the dog was heard in the background” is evidence
that the jury “panel was [prejudiced] against Appellant.” Appellant’s Brief at
19. Appellant raised this same argument on direct appeal in the context of
whether the trial court should have discharged the juror. We held that
Appellant “failed to meet his burden to show that the jury was not impartial.”
Rush, 162 A.3d at 539. Appellant’s resurrection of this argument is specious.

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both trial counsel and the trial court questioned all prospective jurors about

their ability to be impartial. Id. at 27.

      “A change of venue is compelled whenever a trial court concludes a fair

and impartial jury cannot be selected from the residents of the county where

the crime occurred.”    Commonwealth v. Briggs, 12 A.3d 291, 313 (Pa.

2011). Thus:

      the pivotal question in determining whether an impartial jury may
      be selected is not whether prospective jurors have knowledge of
      the crime being tried, or have even formed an initial opinion based
      on the news coverage they have been exposed to, but, rather,
      whether it is possible for those jurors to set aside their
      impressions or preliminary opinions and render a verdict solely
      based on the evidence presented to them at trial.

Id. at 314. Moreover:

      the mere existence of pre-trial publicity does not warrant a
      presumption of prejudice. Commonwealth v. Chambers, 546
      Pa. 370, 685 A.2d 96, 103 (1996). “Our inquiry must focus upon
      whether any juror formed a fixed opinion of the defendant’s guilt
      or innocence as a result of the pre-trial publicity.”
      Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d 203, 213
      (1997) (quotation omitted). Normally, what prospective jurors
      tell us about their ability to be impartial will be a reliable guide to
      whether the publicity is still so fresh in their minds that it has
      removed their ability to be objective. Commonwealth v. Briggs,
      608 Pa. 430, 12 A.3d 291, 314 (2011). The discretion of the trial
      judge is given wide latitude in this area. Id.

           For pre-trial publicity to be presumptively prejudicial, a
      defendant must prove, inter alia, “that the publicity was so
      extensive, sustained, and pervasive without sufficient time
      between publication and trial for the prejudice to dissipate, that
      the community must be deemed to have been saturated.”
      Commonwealth v. Rucci, 543 Pa. 261, 670 A.2d 1129, 1141
      (1996). The publicity must be so inflammatory and slanted
      toward conviction “rather than factual and objective.” Marinelli,
      690 A.2d at 213 (quotation omitted). “Finally, even if there has

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     been inherently prejudicial publicity which has saturated the
     community, no change of venue is warranted if the passage of
     time has sufficiently dissipated the prejudicial effects of the
     publicity.” Chambers, 685 A.2d at 103.

Commonwealth v. Tanner, ___ A.3d___ 2019 PA Super 62 (Pa. Super. filed

February 27, 2019).

     The PCRA court rejected this ineffectiveness claim as follows:

              Lastly, Appellant alleges trial counsel was ineffective for
     failing to pursue a motion for a change of venue,2 as multiple
     jurors expressed knowledge of the case and a love of dogs. A
     change of venue is appropriate where “a fair . . . trial cannot
     otherwise be had in the county where the case is currently
     pending.” Pa.R.Crim.P. 584 (A). Further, this [c]ourt was “in the
     best position to assess the atmosphere of the community and to
     judge the necessity of any requested change.” Commonwealth v.
     Walter, 119 A.3d 255, 270 (Pa. 2015). The standard voir dire
     questions for prospective jurors ask if they know anything about
     the case or have read, seen or heard anything about this case.3
     All prospective jurors who answered this question in the
     affirmative were further questioned and any who were unable to
     fulfill their oaths were screened out at this stage. Furthermore, a
     love of dogs does not, per se, preclude a juror from fairly weighing
     the evidence.4

           2 Trial counsel did file a Motion for Change of Venue.
           This [c]ourt conducted a test panel voir dire, after
           which Appellant withdrew his motion.

           3 This [c]ourt notes that the January 2014 underlying
           incident garnered significant media attention, but by
           the time of the trial in December, coverage had
           reduced drastically.

           4  This [c]ourt takes judicial notice of the fact that a
           love of dogs is a statewide phenomenon.

PCRA Court Opinion, 8/22/18, at 5–6.




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      Upon review, we conclude the record supports the PCRA court’s

determination that a change of venue was not warranted; we further conclude

that its determination is free of legal error.       Staton, 184 A.3d 949.

Considering the record in the light most favorable to the Commonwealth,

Appellant’s bald assertions of pretrial publicity fall short of establishing the

pervasiveness and sustained negative publicity required to change venue of a

case. Tanner, 2019 PA Super 62 at *3. As the PCRA court observed, eleven

months passed from the incident in January 2014 until Appellant’s trial in

December 2014.     Accord Tanner, 2019 PA Super 62 at *4 (holding that

change of venue was properly denied where publicity was followed by eleven-

month “cooling off” period sufficient to dispel prejudice); Commonwealth v.

Walter, 119 A.3d 255 (Pa. 2015) (same). Additionally, the trial court asked

each potential juror if he or she was aware of the case because of pretrial

publicity and, if so, whether the publicity would influence his or her judgment

in rendering a fair and impartial verdict. Any prospective jurors who were

unable to fulfill their oaths did not serve.     Thus, Appellant’s underlying

argument lacks merit. Accordingly, we conclude the PCRA court did not err in

denying Appellant’s final claim of ineffective assistance of counsel.

      Appellant has not established that trial or direct appeal counsel was

ineffective. Therefore, the PCRA court did not err in denying Appellant relief.

Accordingly, we affirm the PCRA court’s order.

      Order affirmed.


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J-A05030-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2019




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