J-S52016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

FERNANDO REAL,

                        Appellant                   No. 1495 EDA 2013


             Appeal from the PCRA Order entered May 3, 2013,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0207721-2004


BEFORE: GANTMAN, P.J., ALLEN and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.:                          FILED AUGUST 27, 2014

                                           pro se from the order denying his



sections 9541-46. We affirm.

     We previously summarized the factual background as follows:

           On September 11, 200[2], Appellant shot and killed

        Frankford section of the City and County of Philadelphia,
        Pennsylvania.    According to eyewitness testimony of
        R
        when the victim placed an insufficient bet.     A verbal
        argument between Appellant and the victim ensued.

        with two other men. Shortly after Appellant returned to
        where the game was being played, the victim walked away
        from the game. Mr. Milburn then heard gun shots [sic]
        and saw Appellant with a 9 mm gun in his hand, standing
        over the victim who had fallen to the curb. After the


*Former Justice specially assigned to the Superior Court.
J-S52016-14


         shooting, Appellant ran away.        Mr. Milburn had seen
         Appellant with the same 9 mm gun about a week earlier in
         a local bar.     According to Mr. Milburn, nearby police
         officers immediately responded to the gunshots and,
         without waiting for an ambulance, transported the victim
         to the hospital. [The victim later died.]

Commonwealth v. Real, 972 A.2d 560 (Pa. Super. 2009), unpublished

memorandum at 1-2 (citations omitted).

      A jury convicted Appellant of first-degree murder and possession of an

instrument of crime.   Thereafter, the trial court sentenced Appellant to a

term of life in prison for his murder conviction, and a concurrent sentence of

two and one-half to five years in prison for possessing an instrument of

crime.   Appellant filed a direct appeal to this Court.   In an unpublished



sentence.   Real, supra.   On October 7, 2009, our Supreme Court denied

                                              Commonwealth v. Real, 982

A.2d 65 (Pa. 2009).    On April 5, 2010, the United States Supreme Court

                                     certiorari.

      Meanwhile, on February 26, 2010, Appellant filed a pro se PCRA

petition. Although the PCRA court appointed counsel, and PCRA counsel filed

an amended petition, on July 16, 2012, Appellant filed a motion to proceed

pro se, and an amended petition in which he raised several claims of

ineffective assistance of counsel. On September 13, 2012, the PCRA court




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conducted a Grazier1 hearing, and granted Appellant permission to proceed

pro se. The PCRA court then held several days of evidentiary hearings. By



PCRA petition. This timely appeal followed. The PCRA court did not require

Pa.R.A.P. 1925 compliance.

       Appellant raises the following issues:

          A. Whether the PCRA court erred when it held [Appellant]

          prosecutor eliciting evidence of another crime previously
          ruled inadmissible     the shooting at Officer Spence

          under the Pennsylvania and United States Constitutions?

          B. Whether the PCRA court erred when in denying
          [Appellant] relief when [his] right to effective assistance of


          counsel was violated by the prosecutor displaying a
          photograph of [Appellant] to a witness, post formal
          charging without defense counsel being present?

                        -3.

       In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

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

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great



____________________________________________


1
    See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).




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                                  Johnson, 966 A.2d at 532. To be entitled

to relief under the PCRA, the petitioner must plead and prove by a

preponderance of the evidence that the conviction or sentence arose from

one or more of the errors enumerated in section 9543(a)(2) of the PCRA.

One such error involves the ineffectiveness of counsel.

        To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Id.

adequate, and counsel will only be deemed ineffective upon a sufficient

                              Id. This requires the petitioner to demonstrate

that:    (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) petitioner

was prejudiced by counsel's act or omission.        Id. at 533.    A finding of

"prejudice" requires the petitioner to show "that there is a reasonable



proceeding would have been different."        Id.    In assessing a claim of

ineffectiveness, when it is clear that appellant has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).               Counsel


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cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc),

appeal denied, 852 A.2d 311 (Pa. 2004).

      Appellant first claims that trial counsel was ineffective for failing to

object and request a mistrial after Sergeant John Spence testified at trial




                                     another occupant fired at the officer.

According to Appellant, the trial court previously ruled this evidence



                                                                        cken[ed]

in the minds of the jury.   Absent this error, the jury was free to believe




                                                      ad arguable merit, and

trial counsel did not provide a reasonable basis for his omission, the PCRA

court concluded that Appellant could not establish the requisite prejudice. In

ruling on the record, the PCRA court stated:


             [T]his Court cannot find that there was a reasonable
         probability that the outcome of the trial would have been
         different had this evidence been excluded due to the
         overwhelming evidence of guilt in this case and the general
         cautionary instruction given to the jury regarding bad acts.

                                    ***


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           This Court reviewed the jury instructions. In their
        totality, the instructions informed the jury of the limited
        purpose for which evidence of flight could be used, as well
        as any other evidence of bad acts by [Appellant].

N.T., 5/3/13, at 12-13.



because Appellant could not establish prejudice, his ineffectiveness claim

fails. Travaglia, supra. Earlier in the hearing, the PCRA court summarized

the overwhelming evidence of Appel


        read to the jury since he was found to be unavailable to
        testify by the Trial Court.


        described the circumstances surrounding the shooting. It
        was an improperly placed bet at a dice game.            He
        described the gun used in the shooting as a 9 millimeter.
        Ballistics confirmed this. The victim was shot from behind.
        He testified that the victim was shot from behind. The
        medical examiner confirmed this. [Mr. Milburn] said that
        [Appellant] stood over the victim after he was down and
        fired more shots at him. Ballistics confirmed this. There

        Milburn] testified that numerous shots were fired. The
        murder weapon was recovered empty and the victim was
        shot 12 times.

           Marquise Nixon gave a statement to police.            He
        recanted at trial, however, under the law, his prior
        inconsistent, signed statement to police must be
        considered by a reviewing Court in the same manner as
        any other type of validly admitted substantive evidence
        when determining if sufficient evidence exists to sustain a
        criminal conviction.


        game. He heard shots,
        [Appellant] as the shooter and he stated that he saw
        [Appellant] run toward Harrison Street.  Police Officer

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         photo out of an array[.]

                                    ***

            Brian Perry also gave a statement to police. He was an
         eyewitness. He recanted at trial, but since it was a signed
         statement to police, which he adopted, that must be
         considered as substantive evidence, as well.

            He stated that he was at a craps game, that he heard
         approximately seven shots coming from the area where he
         last saw [Appellant] behind him, that [Appellant] was
         wearing a white T-shirt and blue jeans, tall, real light,
         looks Puerto Rican, approximately 5, 11.

             Police Officer Vincent - - I am going to purposely leave
         out her in-
         most likely should not have been permitted. She sees a
         light-skinned black male, 5,9 to 5,11, skinny, from 20 to
         30 feet away in well-lit conditions. This male looks in her
         direction, stands flush against the wall, then runs toward
         Harrison Street.

            Police Officer Vincent testified that she found the gun on
         the path along which she chased this person. That gun
         was later determined to be the murder weapon.

            Other   evidence   presented   in   the   case   was   that

         attempted to reclaim it. Also [Appellant] could not be
         found for over one year. [Appellant] was finally found in a
         motel room in New Jersey with a loaded weapon which was
         a 9 millimeter and he gave a false name.


         and there is no claim regarding the statements as a part of
         the PCRA. So the statements are substantive evidence
         that was legally admitted during the trial. The statements
         being I like shooting people and I already got two bodies.



N.T., 5/3/13, at 4-7.




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that the jury was adequately instructed as to the limited use of the evidence

in question. See N.T., 6/27/05, at 199-201. It is well settled that juries are

                                                         Commonwealth v.

Speight, 854 A.2d 450, 458 (Pa. 2004); see also Commonwealth v.

John, 596 A.2d

instructions may suffice to eradicate any prejudice that might result from




      In his next issue, Appellant claims that the PCRA court erred in



on appeal his claim that his constitutional right to counsel was violated.

Prior to addressing this claim, the PCRA explained the circumstances



            Now, by way of factual background, Police Officer
         Vincent arrived on the scene of the homicide. She saw a
         male run in her direction, then look in her direction and
         place his body flat against the wall. The male then ran off
         toward Harrison Street. Police Officer Vincent gave chase.
         She lost the male but recovered a gun on the path along
         which she chased the male which was later determined to
         be the murder weapon.

            Police Officer Vincent gave a statement to homicide
         detectives wherein she described the male as a light-
         skinned black male, 5,9 to 5,11, skinny. Police Officer

         [Appellant] that evening.

            Approximately six weeks after the homicide, a wanted
         poster of [Appellant] was placed in the 15th Police District.

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         Police Officer Vincent testified that she saw the poster and
         recognized it to be the person she chased on the night of
         the homicide. She failed to disclose this information to
         homicide detectives or to the Assistant District Attorney
         until pretrial preparation which was a few days before the
         trial.

            When Police Officer Vincent told the Assistant District
         Attorney, which was close to three years after [Appellant]
         had been arrested and the wanted poster had been taken
         down, Police Officer Vincent, unbeknownst to the Defense
         Attorney beforehand, identified [Appellant] in court. The

         colloquied Police Officer Vincent regarding the basis for her
         in-court identification.

            Police Officer Vincent testified to seeing the wanted
         poster near the time of the homicide but also testified that
         she was shown the poster again by the Assistant District
         Attorney during the trial prep.

N.T., 5/3/13, at 15-17.



the first two prongs of the tripartite test applied to an ineffectiveness claim,

the PCRA denied relief based upon its conclusion that Appellant could not

establish the requisite prejudice:

             [Even if the trial court had] afforded relief to the
         Defense in the form of a complete suppression of any
         identification by Police Officer Vincent, that still would not
         likely have changed the outcome of this case.



         description. The direction in which he ran was consistent
         with the direction in which other witnesses say he ran and
         there were three other identification witnesses - - and this
         is the most important fact - - there were three other
         identification witnesses aside from Police Officer Vincent,
         witnesses who knew [Appellant].        Also, Police Officer
         Vincent was fully cross-examined and her credibility

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         notice of her ability to make an identification in the case.

Id. at 21-22.



                                                                          g that he was

prejudiced   by   any   violation   of    his     right   to   counsel.     See,   e.g.,

Commonwealth v. Spencer, 275 A.2d 299, 332 (Pa. 1971) (refusing to



improperly denied during pretrial identification, when the error was harmless



that prejudice is presumed is inapt.         See



      In sum, because the PCRA court correctly concluded that Appellant



order denying post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2014




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