Commonwealth v. Peel, 27 EDA 2022

COMMONWEALTH OF PENNSYLVANIA v. TYREE PEEL Appellant

No. 27 EDA 2022

Superior Court of Pennsylvania

January 10, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered December 16, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011697-2015

BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.

MEMORANDUM

OLSON J.

Appellant Tyree Peel, appeals from the December 16, 2021 order entered in the Court of Common Pleas of Philadelphia County, denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The PCRA court summarized the factual and procedural history as follows:

On the evening of August 15, 2015, Appellant encountered Thomas Holman, decedent, ["the victim"] at [7:00 p.m.] at the intersection of 53rd and Upland Streets in the city and county of Philadelphia, Pennsylvania. The two men conversed briefly, and Appellant drew a handgun. [The victim] turned and tried to run away. Appellant fired several rounds at the unarmed [victim], striking him in the chest, ribs, and buttocks. [The victim] fell and began crawling away from Appellant. Appellant walked toward the victim, stood over him, and shot him in the head, killing him instantly.

[] Appellant's jury trial [began] on May 15, 2017. The Commonwealth presented the testimony of [] two eyewitnesses who knew the Appellant previously and saw Appellant shoot the victim.^[1] The Commonwealth also presented testimony from the police and the medical examiner. [The eyewitness] testified that she was standing on the front steps of her home at the time of the shooting. She [contacted the victim] to buy some marijuana from him. [The eyewitness] called out to him when she [saw] him at the nearby intersection [on the day of the incident], but he held up his index finger in a ["]just-a-minute["] gesture and [then] crossed the street. [The eyewitness] saw him talking to Appellant, whom she knew as "Freaky." Moments later, she saw Appellant pull out a [hand]gun, shoot [the victim], and then fire the final shot to the head as he stood over the fallen victim. [Upon seeing this, the eyewitness] ran into her house[. W]hen she came back out, she saw [the victim's girlfriend] cradling [the victim] in the street and crying for help. [The eyewitness] viewed the murder from no more than 30 feet away, in broad daylight.

[The victim's girlfriend] testified that [the victim] was her boyfriend. They were going to a family cookout on the day of the murder, and [the victim] left the house ahead of her. [The victim's girlfriend] followed shortly after. As she left the house, she saw Appellant conversing with [the victim] at the intersection [where the incident occurred, which was] about 45 feet [from where the victim's girlfriend was located. The victim's girlfriend] heard several gunshots a moment later. She dropped her bag and [tele]phone, looked up, and saw Appellant standing over [the victim]. Describing herself as "in shock," [the victim's girlfriend] went to [the victim] as Appellant left. [The victim] was nonresponsive and surrounded by "so much blood." A crowd gathered, and [the] police arrived a few minutes later. The frightened [victim's girlfriend] noticed Appellant looking on from the crowd.

On May 19, 2017, the jury returned a verdict of guilty [on the criminal charges of:] first[-]degree murder, 18 Pa.C.S.[A.] § 2502; possessing an instrument of crime, 18 Pa.C.S.[A.] § 907; carrying a firearm without a license, 18 Pa.C.S.[A.] § 6106; and carrying a firearm on a public street [in Philadelphia, Pennsylvania], 18 Pa.C.S.[A.] § 6108. On May 19, 2017, the trial court sentenced Appellant to a mandatory term of life in prison without the possibility of parole [for Appellant's first-degree murder conviction. The trial court also imposed] an aggregate sentence of ten [] to twenty [] years[' imprisonment] to run consecutive[ly] to the term of life [in prison] for the remaining charges. Appellant filed post-sentence motions on May 26, 2017, which the trial court denied on September 25, 2017[,] by operation of law.

Appellant filed a timely appeal on October 23, 2017. Appellant raised a single claim on direct appeal: [whether] the trial court erred in denying his request for a Kloiber^[2] instruction to be given to the jury[? This Court] affirmed his judgment of sentence on [November 14, 2018,] and [our] Supreme Court denied Appellant's petition for allowance of appeal on April 23, 2019. [See Commonwealth v. Peel, 2018 WL 5961394 (Pa. Super. filed Nov. 14, 2018) (unpublished memorandum), appeal denied, 207 A.3d 287 (Pa. 2019).]

PCRA Court Opinion, 6/29/22, at 1-3 (extraneous capitalization omitted).

On July 9, 2020, Appellant filed pro se a PCRA petition, his first. Counsel was appointed for Appellant, and on January 22, 2021, counsel filed an amended PCRA petition that included, inter alia, a request for a PCRA evidentiary hearing. On April 13, 2021, counsel filed a motion for leave to file a supplemental amended PCRA petition. That same day, counsel filed a supplemental amended PCRA petition.^[3] On August 3, 2021, the Commonwealth filed a motion to dismiss Appellant's supplemental amended PCRA petition. On November 22, 2021, the PCRA court provided Appellant notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss his PCRA petition without an evidentiary hearing and provided Appellant 20 days to file a response. Appellant did not file a response. On December 16, 2021, the PCRA court dismissed Appellant's PCRA petition. This appeal followed.

Appellant raises the following issues for our review:

1. Did the PCRA court err in dismissing Appellant's PCRA petition without [an evidentiary] hearing because trial counsel was ineffective for failing to file a motion to suppress the single photograph identifications of Appellant?

2. Did the PCRA court err in dismissing Appellant's PCRA petition without [an evidentiary] hearing because trial counsel was ineffective for not calling Sharon Butcher or other identifiers of [a person other than Appellant as the shooter] as witnesses and confronting them with police paperwork that indicated that they had identified [this second person] as the shooter?

Appellant's Brief at 4 (extraneous capitalization omitted).

In addressing Appellant's issues, we are mindful of our well-settled standard and scope of review of an order denying a PCRA petition. Proper appellate review of a PCRA court's denial of a petition is limited to the examination of "whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations omitted). "This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding." Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court's legal conclusions de novo. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).

Appellant's issues raise claims alleging that trial counsel provided ineffective assistance. Appellant's Brief at 9-16. "It is well-established that counsel is presumed effective[.]" Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012), citing Strickland v. Washington, 466 U.S. 668, 687-691 (1984). To plead and prove a claim of ineffective assistance of counsel, "a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act." Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc), appeal denied, 93 A.3d 463 (Pa. 2014). "A claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any of these prongs." Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). "In determining whether counsel's action was reasonable, we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis." Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

Our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his[, or her,] client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). A petitioner establishes prejudice when he demonstrates "that there is a reasonable probability that, but for counsel's [acts or omissions], the result of the proceeding would have been different." Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009).

Appellant's first issue alleges trial counsel was ineffective for failing to file a motion to suppress the single photograph identifications of Appellant as the shooter by the eyewitness and the victim's girlfriend. Appellant's Brief at 9-12. Appellant asserts that, on February 15, 2017, he filed pro se a motion to suppress the single photograph identifications by the eyewitness and the victim's girlfriend and that trial counsel was...