J-S41029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ROYSCE HAYNES                           :
                                         :
                   Appellant             :   No. 3170 EDA 2017

                Appeal from the PCRA Order August 24, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0014368-2012,
                          CP-51-CR-0014369-2012


BEFORE:    GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 10, 2018

      Appellant, Roysce Haynes, appeals from the order entered on August

24, 2017 in the Criminal Division of the Court of Common Pleas of Philadelphia

County that dismissed, without a hearing, his petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      This Court previously summarized the historical facts in this case as

follows:

      During the afternoon of September 10, 2012, Philadelphia
      Probation and Parole Officers Shondell Williams and Evan Moore–
      Mathis visited [Appellant]. As they approached his apartment,
      they saw him sitting on the steps outside the apartment entrance.
      He appeared stunned and was somewhat unresponsive to
      questions. His head was lowered and when asked whether the
      police should be summoned, he said yes. N.T. April 29, 2014, pp.
      81–87.




____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41029-18


     Philadelphia Police Officer Jonathan Ransom was called to [a
     residence along] Chelton Avenue in the Germantown section of
     Philadelphia. There he encountered [Appellant], who told him that
     he had been in an argument with his girlfriend, that the argument
     had become physical, and that he had choked her. When Officer
     Ransom went inside [Appellant’s] apartment, he saw the
     decedent, Atiya Perry, lying on the floor and bleeding from the
     head. She had no signs of life. Officer Ransom noticed a bloody
     towel lying on the floor near her head. Id. at 32–46.

     Dr. Marlin Osbourne, Assistant Medical Examiner, performed the
     autopsy on the decedent and determined that her death was a
     homicide achieved by strangulation. [The decedent] also had
     small lacerations on her left cheek. Dr. Osbourne determined that
     based on the size of the fetus in her uterus, she had been pregnant
     for seven weeks at the time of her death. Id. at 113–124.

     Detective Edward Tolliver took a statement from [Appellant] the
     day of the killing. In it, [Appellant] acknowledged killing the
     decedent. He said that the decedent had been hitting him with a
     closed fist on the side of his head and that she had tried to use
     pepper spray against him, and that he choked her. He also said
     that the decedent had told him that she was pregnant, but that
     he did not believe her. Id. at 139–157. Detective Tracey Byard
     searched the apartment in the immediate aftermath of the
     murder. He did not find any mace or pepper spray anywhere in
     the apartment. Id. at 189. Prenatal vitamins and magazines
     about pregnancy were found in the apartment. Id. at 68–69.

Commonwealth v. Haynes, 125 A.3d 800, 802 (Pa. Super. 2015), appeal

denied, 140 A.3d 12 (Pa. 2016).

     Appellant was arrested and charged with murder and murder of an

unborn child on September 10, 2012. Following trial, a jury found Appellant

guilty of third-degree murder for killing Atiya Perry and third-degree murder

for the death of her unborn child. On July 1, 2014, the trial court imposed an

aggregate sentence of 35 to 70 years’ incarceration. Both Appellant and the

Commonwealth appealed the judgment of sentence. On October 5, 2015, this

                                    -2-
J-S41029-18


Court affirmed the judgment and our Supreme Court denied further review on

June 1, 2016.

      Appellant filed a pro se PCRA petition on September 29, 2016.

Thereafter, appointed counsel filed an amended petition on May 10, 2017. On

July 13, 2017, pursuant to Pa.R.Crim.P. 907, the PCRA court issued notice of

its intent to dismiss Appellant’s petition without a hearing. Appellant did not

respond to the dismissal notice and the court denied the petition on August

24, 2017. This timely appeal followed.

      Appellant raises a single question for our review:

      Did the [PCRA c]ourt err when it dismissed [Appellant’s] PCRA
      [p]etition without a [h]earing?

Appellant’s Brief at 3.

      We have carefully reviewed the certified record, the submissions of the

parties, and the opinion of the PCRA court.          Based upon our review, we

conclude that Appellant’s claim of ineffectiveness of trial counsel is meritless

and that he failed to raise a genuine issue of fact that required an evidentiary

hearing to resolve. We further find that the PCRA court has adequately and

accurately addressed the issues raised by Appellant in the context of this

appeal. For this reason, we adopt the PCRA court’s opinion as our own and

direct the parties to include a copy of that opinion with all future filings relating

to our disposition of this appeal.

      Order affirmed.




                                        -3-
J-S41029-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/18




                          -4-
                                                                                                                                                                Circulated 09/19/2018 02:46 PM



                                                                                                                                                                    RECEIVED
                                                                         IN THE COURT OF COMMON PLEAS                                                              AUG 2 42017
                                                               FIRST .JUDICIAL DISTRJCT OFPENNSYLV A.NIA
                                                                        CRIMINAL tRJAL DIVISION      ..                                                        . . PORA Unit
                                                                                                                                                               CP Criminal Listings


                                 COMMONWEAL TH ()FPE1'iNSYL VANIA                                                : CP-5 l-CR-0014368.2012
                                                                                                                .: CP�51-CR-0014J69-2012
                                            Y.


                                 ROYSCEHAYNES



                                                                                      .ORD.ER AND OPINION


                                 McDermott, J.                                                                                                     Augus(2412017

                                .Procedural History

                                            On September I 0, 20;12, the Petitioner, Roysce Haynes, was arrested and charged with

                                 Murder and Abuse ofa Corpse in CP-51-CR.,001436.8-2012, and Criminal Homicide of all

                                 Unborn Child in GP-'51-CR-0014369--2012.. On April 30, 2014, after a consolidated trial before

                                this Court, ajury convicted the Petitioner of Third-Degree Murder in CP-5l-CR-0014368-2012

                                 and Criminal Homicide of an Unborn Child in CP-SJ.,.CR-0014369.:2012. On July l , 2014, this

                                 Court imposed a sentence of twenty to forty years imprisonment for Third-Degree.Murder and a

                                 consecutive fifteen to thirty years for CriminalHomicide ofan Unborn Child, for a total sentence

                                 ofthirty-five to seventy years ofimprisonment,

                                            The Petitioner appealed and on October 5., 20 l 51 the Superior Court affirmed his.

                                 judgment of sentence. On June I, 2016, the Pennsylvania Supreme Court denied tile Petitioner's

                                 Petition for Allowance of Appeal.


                                                                                                                                                      .,.··
                                                                                                                                                     1.
                                                                                                                                                                     .                    ---·
                                                                                                                                                          CP-51-CR-0014366-2012 CQtnm•.v ·Haynes. RO,$CC
                                                                                                                                                                             .tjpinion:




                                                     APPENDIX - LOWER CPURT O;IN�ll��ijJJIIIIII                                                      '


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       On September 29, 2016, the Petitioner filed a timefyprd se Pest-Conviction Relief Act

("PCRA ") petition, his first. On May 10, 2017, through .appointed counsel, the. Petitioner filed

an Amended Petition. Ori July 12, 2017., the Commonwealth filed its response .. On July 13,

2017,. after independent review, . this Court.found the Petitioner's. claims meritless and issued a
                                                                                  .




Notice of Intent to Dismiss pursuant to Pa.RiCrim.P. �07. The Petitioner did not respond to this

Court's 907 Notice:


       On direct appeal, the Superior Court summarized the relevant facts .as follows:

                     During lhe afternoon of September 10, 2012, Philadelphia
                Probation and Parole Officers Shondell Williams and Evan.Moore-
                Mathis visited [the Petitioner, Roysce Haynes]. As they approached
                his apartment, they saw him sitting on the steps outside the
                apartment entrance. He appeared stunned and was. somewhat
              · unresponsive to questions. His head was lowered and when· asked
               whether the. police should be summoned, he said yes.                .
                    Philadelphia Police Officer Jonathan Ransom was called to 850
                Chelton Avenue in.the Germantown section of Philadelphia. There
                he encountered· [the Petitioner], who told. him that he had been in an
              .argurnent with his girlfriend, that the argument had become
                physical, and that he had choked her. When Officer Ransom went
                inside [the PetitionerJ's apartment, he saw the decedent AtiyaPerry,
                lying on the floor and bleeding from the head. She had no signs of
               life'. Officer Ransom noticed a bloody towel lying onthe floor near
                her head.           .
                     Dr: Marlin Osbourne, Assistant Medical Examiner, performed
               the autopsy on the decedent and determined that her death was a
               homicide achieved by strangulation. [The decedent] also had small
               lacerations on her left cheek. Dr. Osbourne determined. that based
               on the sizeof.the.fetus in her uterus, shehadbeen pregnantfor seven
               weeks at the time of herdeath,                       .    .       .
                   Detective Edward Tolliver took astatement from [the Petitioner]
               the day of the killing. In. it, [the Petitioner] acknowledged ki Hing the
               decedent. He said that the decedent had been. hitting him. with .a
               closed fist on the side ofhis head and that.she had tried to use pepper
               spray against him, and that he choked her. He also said that the
               decedent had told him that she was pregnant; but that he did not
               believe her. Detective Tracey Byard searched the apartment in the
               immediate aftermath of the· murder. He did not find any mace or
                    pepper spray anywhere in the. apartment, Prenatal vitamins and
                    magazines about-pregnancy were found in the apartment.

Commonwealth v. Haynes, l 25 A.Jd 8.00, 802 (Pa. Super, 2015).

Discussion

           The Petitioner raises a single issue for review, alleging that trial counsel was-ineffective
for failing to challenge the admissibility of his confession to. police. Specifically, in his pro se

petition, the Petitioner admits that.officers read him his Miranda rights prior to taking his
statement, but.argues that Miranda wasvemployedillegally" and was part ofan "accusatory

ruse." Petitioner's Pro Se Petition at 6. The Petitioner further alleges that detectives "suggested

that[he was] notgetting an attorney." Id. Though the Petitioner merely claims that.trial counsel

was. ineffective in his Amended Petition, he goes on to argue, contradictorily.Jn an attached

Memorandum of Law1 that "he was.not given his Miranda warnings" and that he "wanted an

attorney Jresent at the time he was being questioned but no attorney was· provided, thus
rendering the statement something less than knowing, intelligent and voluntary." Petitioner's

May I 0, 2017 Memorandum of Law at 6:

           To warrant relief based on an ineffectiveness claim. a petitioner must show that such
ineffectiveness "in the circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt o:r innocence could have taken place.

Commonwealth v. Bardo, l05 A.3.d 678� 684. (Pa,.2014); 4.2 Pa.C.S. § 9543(a)(Z)(ii). Counsel is

presumed to have rendered effective assistance. Commonwealth v, Weiss, 81 AJd 767, 783 (Pa.

2013) (cirtne Commonwea/thv.Sepu/v(!da,55A.Jd1108,.l tf7 (P.a. 2012)).

           To overcome the presumption, the Petitioner has to satisfy the performance and prejudice

test set forth in Strickland v. Washington, 466 U .S, 668 (1984). The. Supreme Court of

I   The Petitiener titlc.s. his.Memorandum of Law as a "Letter Brief."
                     Pennsylvania has-applied the ·st rick/and test by looking to three elements, whether (I); the.

                     underlying claim has arguable
                                             ..    merit; (2) no reasonable basis existed for counsel's action
                                                                                                          . .. or. •

                    'failure to -�ct;·and (3) the petitioner has shown that. he suffered prejudice asa result of counsel's.

                     lapse, i.e .., (hat there isa reasonable probability that.the result of the proceeding would have been

                     different. Commonwealth v. Pierce, 527'.A.2d 973, 975 (Pa. 1987). Ifa claim faiis under any

                    necessary element ofthe, �irickl.a11d!Pierc� test, the court may proceed to that. element first,

                     Commonwealth v, Bennett, 57 A.3.d 1185, I I 95....-1196 (Pa.2011.) .. Counsel. will not be.deemed.

                    . ineffective for fai Ung to raise a rneritless .cl aim; Com monwealth ,,.. Rivera, ·1 08 A -,3 d 7:79 ,. 78-9

                     (Pa. 2014) (citing Commonwealth v. Jones, .. 912 A.id 26a, 278 (Pa. 2006)).

                            In hisMemorandum -oft.aw attached-to his.Amended.. Petition, the ..Petitioner argues that

                    . his statement confessing to stra·n_gling the decedent during a fight would have been suppressed, if

                     challenged, becauselaw enforcement authorities-failed to Mirandize him andprbvide him with

                     an.attorneyprior to the interrogation. ThePetitioner argues thatthe additional evidence

                     presented against himwas weakrendering-trial counsel's failure to challengehighlyprejudicial.

                     Whenapetitioner asserts .ineffective assistance of counsel based upon the failureto pursue a

                     suppression motion, proofof the: merit of the underlying suppression claim is necessary to

                     demonstrate Inetfecnve assistance .. Commonwealth _v: Warley,           rsz A.3d    l0":34, 1044·.(�a. Super.

                     2016) (cittng Commonwealth' v. Metzger, 441 A:2d 1225, 1228 (Pa Super. l-9S 1)).

                            A waiver of Miranda rights. is· valid.wherethe suspect- is aware of the generalnature of

                     the transaction. giving rise to theinvestigation. Commonwealth. v, Johnson, 160 A}d 127, 1J8

                     (Pa. 20°1-7). A Petitioner is presumed competent to waive Miranda. rights, and he pears the

                     burden
                        .   toprove incornpetencebya .preponderance of the evidence. Commonwealih·v..}Vatkins,

                     J 0.8 A.Jq 692, 703"(Pa. ibM). In deciding whethera confession was involuntary, courts mus!



                                                                                                                                     4·




-·----··..··········---
determine whether. the interrogation was so manipulative or coercive that it deprived the

petitioner ofhis ability to   make. a free. and unconstrained decision. Commonwealth v; Phillstin,

53. A.3d 1, .1 S (Pa. 2012) (citing Commonwealth». Templin, 795 A.2d 959,. 966 (Pa. 2002)}.

        In his prose petition, the Petitioner claims that the Miranda warning he received was too

ambiguous to understand, and that during the course of the interview, police implied that he

would notbe able to communicate with an attorney: The Petitioner does not allege anything

beyond this. bald assertion. On July 13? 2017,.during argument before this Court, the. Petitioner,

through counsel, stated that an evidentiary hearing was necessary so this Court could make a

credibility determination between himself and the interrogating.officer. N.T. 7/13/2017 at 4... s.

        An evidentiary hearing is not meant to function asa fishing expedition for possible

evidence that may support a claim. of ineffectiveness. Commonwealth v; Sneed, 45 kJd 1096,

l 1J6 (Pa. 2012)(cilingCom.monw�q/ih v. Scott, 752 A.2d 871: 877 n, 8 (Pa. 20.0Q)). The fact

that there is a possibility, however slim, that this Court could find the police interrogators

statement incredible-after an evidentiary hearing is not sufficient to satisfy his burden of proving.

ineffec ti veness.

        Although the Petitioner claims that the warnings were ambiguous, he fails to explain

which partof his Miranda waiver was ambiguous or incomprehensible. The Mtrandawarmngs

contained in the standard police.form, as read and signed   by the Petitioner, meets the
constitutional standards necessary to evidence the Petitioner's waiver of'his rights. The' form

clearly and unequivocally explained that thePetitioner had the right to remain silent, the right to

an attorney, and the rightto stopthe interrogation at any time. See Commonwealth's Trial

Exhibit C-12. This evidence shows thatthe Petitioner elected to. speak to detectives Without an

attorney present.
       The evidence presented at trial indicates that the Petitioner wasproperly Mirandized and

was aware of, but failed to invoke, his rightto counsel. Detective Edward Tolliverinterviewed

thf Petitioneron September 10, :2,012 arid waspresentwhen the Petitioner reviewed.answered,

and signed a written Miranda waiver form. Tolliver testified that, on the Miranda waiver form,

the Petitioner indicated that he knew of his right to. remain silent, that he did. not wish to express

that right, that he did not want to speak to a.lawyer despite his constitutional right to do so, .and

thathe answered each question of'h is own free will, wi tho tit any threats or promises having been

made to him. N:T. 4/29/2014 at 142,..149; s�e Commonwealth's TrialExhibit C-12, attached as

«Ex.hibit A.'" Detective Tolliver observed the Petitioner write hisinitials nextto each question on

the waiver form, sign each ()age of his. statement, and attest that the facts set forth in his

statement were true. Id. at.l 43-147: According to Detective Tolliver; the Petitioner willingly

continued to communicate with detectives after being read his rights. Id. at 171--1'72·.

       The Amended Petit ion and its attached Memorandum of Law fail ta develop these

allegations further. Instead: the Petitioner claims that Detectives never gave the Petitioner.

Miranda warnings, despite thePetitioner's contrary assertion in his prose petition. Further,

while the Petitioner states that he wanted an attorney but was never provided one, he fails to

explicitly assert that he. ever invoked his right to an attorney, or thatpolice detectives denied him

access to an attorney after such and invocation, These bald, contradictory cJaims fail to

sufficiently raise the issue that detectives didnot provide proper Miranda warnings or that the

Petitioner invoked, and was denied, his right to counsel. The Petitioner's claim is too

underdeveloped to warrant an evidentiary hearing; ·

        The Petitioner cannot demonstrate prejudice, as even if this Court had suppressed bis

police statement; the evidence contained therein would have been.presented to the.jury. The


                                                                                                         6
contents of the Petitioner' s police statement were .corrsborated by Officer Ransom's testimony;

which recounted. the Petitioner's spontaneous, non-custodial.admission that he choked the

decedent after ari argument between the.two became physical. N.T.4/29/2014 at36. Officer

Ransom discovered the. decedent's body inside the Petitioner's home. Id. at 37; Officer

Ransom's testimony alone was sufficient to establish that the Petitioner strangled the decedent to

death: Finally, trial counsel had a strategic reason to employ the Petitioner's statement, as it

provided the foundation for his manslaughter defense, which the i.fry ultimately rejected. Id at

199-200; N'.T. 4/30/2014 at 28,31-32, 36-37, 41-43.

The Petitioner's claim is meritless,

       For the foregoing reasons; the petition is hereby DISMISSED -. The Petitioner is hereby:

notified that he has thirty (30) days from .the date of this Order and Opinion tofile an appeal with

the Superior Court.



                                                              BY THE COURT




                                                              Barbara-A. McDermott, J.




                                                                                                            7




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