J-S09007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KAHLIL DAVIS,

                            Appellant                   No. 2544 EDA 2015


                    Appeal from the PCRA Order July 21, 2015
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0002625-2008, CP-51-CR-0003742-
                                      2008


BEFORE: SHOGAN, STABILE, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED MARCH 29, 2017

        Appellant, Kahlil Davis, appeals from the July 21, 2015 order that

denied his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

        In addressing Appellant’s direct appeal, a prior panel of this Court set

forth the underlying facts of this case as follows:

        The facts, as aptly stated by the trial court, are as follows:

              On November 24, 2007, Mr. Omar O’Neal (“O’Neal”)
              was getting his hair cut at a barbershop located at
              54th and Christian Streets, Philadelphia.       Also
              present at the barbershop were the owner,
              Mr. Darryl Perry, several employees including
              Mr. O’Neal’s brother, Mr. Samuel Bailey, and several
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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          customers. At approximately 8:30 p.m., three
          individuals, including the Appellant, entered the
          establishment and produced firearms.             They
          immediately ordered everyone inside to get down on
          the ground, and physically struck some of the
          victims to facilitate their demand.       One of the
          robbers stated “Where is all this money at?” and
          “we’re about to start stripping y’all.” Once every
          occupant was positioned on the floor, the three
          individuals began searching each of their pockets.
          During the search, a firearm was discovered in
          Mr. Perry’s possession. Angered, the individual who
          recovered the firearm proceeded to strike Mr. Perry
          in the back of the head with it. Discussions [among]
          the robbers ensued regarding whether to shoot
          everyone. Mr. O’Neal testified that at that time he
          looked up and observed the Appellant wearing a
          large tan coat with a dark hood on, light blue “True
          Religion” jeans, ripped at the bottom, and carrying a
          firearm in his hand. No one else testified that they
          had an opportunity to view the Appellant’s face.
          After the individuals collected currency and personal
          items to their satisfaction, they left the barbershop
          together.    A threat was issued indicating their
          intention to begin shooting if anyone attempted to
          impede their escape. Within several minutes of the
          robbers’ departure on foot, several police officers
          arrived at the barbershop.

                Mr. O’Neal gave a statement to a police officer
          within forty-five minutes of the robbery. The written
          responses on the police report indicated that
          Mr. O’Neal did not observe any guns, and that he
          would be unable to recognize any of the males if he
          saw them again. Mr. O’Neal, who testified he was
          distraught during the time he gave a statement,
          indicated he began to remember details from the
          robbery later that evening. He specifically recalled
          observing exactly one of the participants of the
          robbery, a man he had never seen before prior to
          that day.

               On November 26, 2007, Police Officer Tyreek
          Cunningham and his partner were on patrol near the

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          area of the robbery, conducting an investigation.
          Near     the    700      block    of   Cecil   Street,
          Officer Cunningham observed the Appellant standing
          on the corner with another male later identified as
          James Henderson.          The Appellant, who began
          walking away eastbound, reaching toward his waist
          area, removed a black handgun, and dropped it into
          nearby bushes. After discarding the handgun, the
          officers drove toward the individuals and exited their
          vehicle. The Appellant began running away, but was
          immediately apprehended. Officer Cunningham then
          proceeded to walk toward the bushes where the
          firearm was discarded. As he was recovering the
          firearm, the Appellant again attempted to run away
          while handcuffed. Appellant’s efforts to flee were
          unsuccessful however as the officers grabbed him
          and secured him in the back of the police vehicle.
          The firearm was identified as a .357 Caliber
          Sigsauer, serial number U71038, matching the
          firearm taken from Mr. Perry during the robbery two
          days prior. The firearm and ammunition were tested
          by a qualified ballistics expert and determined to be
          operable. Based on a certificate of non-licensure, the
          Appellant did not have a valid permit to carry a
          firearm on either November 24, 2007 or
          November 26, 2007.

                 In the evening of November 26, 2007,
          Mr. O’Neal along with the six other victims viewed
          two photo arrays consisting of eight individuals.
          Mr. O’Neal was the only victim to give a positive
          identification, picking out the Appellant who was
          included in one of the arrays.

     Trial court opinion, 1/27/10 at 1-3 (citations omitted). O’Neal
     later identified [A]ppellant again under oath at trial, and Perry
     identified his gun at trial. (Notes of testimony, 11/21/08 at 26-
     7, 70-71.)      O’Neal testified that [A]ppellant was the only
     perpetrator not wearing a mask during the robbery. (Id. at 36.)
     Following a jury trial, [A]ppellant was convicted of [eight counts
     of robbery, as well as aggravated assault, criminal conspiracy,
     and violations of the Uniform Firearms Act] on November 24,
     2009. On January 22, 2009, [A]ppellant was sentenced to a


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       term of 15 to 30 years of incarceration to be followed by 10
       years of probation.

Commonwealth v. Davis, 13 A.3d 980, 569 EDA 2009 (Pa. Super. filed

September 13, 2010) (unpublished memorandum at *1-*4). Appellant filed

a timely notice of appeal, and this Court affirmed Appellant’s judgment of

sentence.     Id.    Appellant filed a petition for allowance of appeal in the

Pennsylvania     Supreme       Court    that   was   denied   on   June   28,   2011.

Commonwealth v. Davis, 23 A.3d 1054, 574 EAL 2010 (Pa. 2011).

       On June 7, 2012, Appellant filed a timely pro se PCRA petition. The

PCRA court appointed counsel who filed an amended PCRA petition on

December 12, 2013. An evidentiary hearing was held on July 21, 2015, and

the PCRA court denied Appellant’s petition that same day.                 This timely

appeal followed; both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.

       On appeal, Appellant raises the following issue for this Court’s

consideration:

       I.     Did the PCRA Court err when it dismissed [Appellant’s]
              Amended Petition without a Hearing and all where
              [Appellant] properly pled and would have been able to
              prove and did in fact prove that [Appellant] was entitled to
              relief?

Appellant’s Brief at 3.1

____________________________________________


1
   We are constrained to point out that contrary to Appellant’s assertion in
his issue presented, the PCRA court did in fact hold an evidentiary hearing in
(Footnote Continued Next Page)


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       While not immediately evident from Appellant’s question presented,

Appellant is alleging that trial counsel was ineffective for failing to challenge

the weight of the evidence.              As this claim was specifically raised in

Appellant’s Pa.R.A.P. 1925(b) statement and presented in the argument

portion of Appellant’s brief, we decline to find waiver for Appellant’s failure

to more fully articulate this issue in his statement of questions presented.

Cf. Commonwealth v. Hodge, 144 A.3d 170, 172 n.4 (Pa. Super. 2016)

(citing Pa.R.A.P. 2116(a)) (“No question will be considered unless it is stated

in the statement of questions involved or is fairly suggested thereby.”).

       When reviewing the propriety of an order denying PCRA relief, this

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA

court’s findings will not be disturbed unless there is no support for them in

the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.

Super. 2014).

       Additionally, in resolving questions of counsel’s effectiveness, we begin

with   the   presumption         that    counsel   rendered   effective   assistance.

Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome

that presumption, the petitioner must establish: “(1) the underlying claim
                       _______________________
(Footnote Continued)

this matter on July 21, 2015. Thus, we reject that portion of his argument
outright.



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has arguable merit; (2) no reasonable basis existed for counsel’s action or

failure to act; and (3) the petitioner suffered prejudice as a result of

counsel’s error, with prejudice measured by whether there is a reasonable

probability that the result of the proceeding would have been different.” Id.

(citation omitted). A claim of ineffective assistance of counsel will fail if the

petitioner does not satisfy all three prongs.     Id.    “In order to meet the

prejudice prong of the ineffectiveness standard, a defendant must show that

there is a ‘reasonable probability that but for counsel’s unprofessional errors,

the result of the proceeding would have been different.’” Commonwealth

v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).            “The burden of proving

ineffectiveness rests with Appellant.” Commonwealth v. Rega, 933 A.2d

997, 1018 (Pa. 2007).     We note also that trial counsel cannot be deemed

ineffective for failing to pursue meritless claims.        Commonwealth v.

Freeland, 106 A.3d 768, 778 (Pa. Super. 2014).

      Here, Appellant avers that counsel was ineffective in failing to file a

post-sentence motion.       To support this assertion of ineffectiveness,

Appellant claims that the identification testimony was unreliable resulting in

a verdict that was against the weight of the evidence and, therefore, he

deserves a new trial. Appellant’s Brief at 9-10. We disagree.

      When reviewing issues concerning the weight of the evidence we note

that the jury is free to believe all, part, or none of the evidence presented

and to determine the credibility of the witnesses.         Commonwealth v.


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Houser, 18 A.3d 1128, 1136 (Pa. 2011) (citation omitted).          A new trial

based on a challenge to the weight of the evidence is warranted only where

the jury’s verdict is so contrary to the evidence that it shocks one’s sense of

justice. Id.

      As noted above, following the robbery, one of the victims, Mr. O’Neal,

initially gave conflicting statements regarding Appellant’s identity. However,

after reflection he was able to recall the events more clearly, and at trial

Mr. O’Neal positively identified Appellant.      Additionally, another victim,

Mr. Perry, identified a gun that was stolen from him during the robbery,

which was subsequently recovered from Appellant.            After review, we

conclude that the jury weighed the identification evidence and concluded

that Appellant was in fact the perpetrator. There is nothing “shocking” about

the jury’s conclusion.    We cannot conclude that there is a reasonable

likelihood that, if trial counsel had filed a post-sentence motion challenging

the weight of the evidence, the result of these proceedings would have been

any different.   Accordingly, we agree with the PCRA court that even if

Appellant’s claim had been properly presented in a post-sentence motion,

“there is no prejudice since the underlying claim itself lacks merit.”   PCRA

Court Opinion, 7/20/16, at 15.       Thus, Appellant cannot sustain a claim of

ineffective assistance of counsel.




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     For the reasons set forth above, we discern no error of law or abuse of

discretion in the PCRA court’s decision. Accordingly, we affirm the July 21,

2015 order that denied Appellant’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2017




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