Commonwealth v. Shaw

214 A.3d 283

COMMONWEALTH of Pennsylvania, Appellee

v.Anthony SHAW, Appellant

No. 1573 EDA 2018

Superior Court of Pennsylvania.

Submitted December 31, 2018

Filed July 03, 2019

Reargument Denied September 11, 2019

Teri B. Himebaugh, Philadelphia, for appellant.

Katayoun M. Copeland, District Attorney, and William R. Toal, III, Assistant District Attorney, Media, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOT, P.J.E.

OPINION BY BENDER, P.J.E.:

Appellant, Anthony Shaw, appeals from the order dismissing his timely petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 - 9546. After careful review, we reverse and remand for a new trial.

The PCRA court summarized the facts leading to Appellant's conviction as follows:

On November 30, 2009 [Appellant] and an accomplice, Daniel Vincent, forced their way into the Darby Borough apartment of ... [V]ictim, Alex Adebisi. [Victim] saw [Appellant] and Vincent "hanging" around his apartment building before the home invasion and in fact spoke with them. When the conversation concluded[,] [Victim] then went into his apartment where he was entertaining guests. [Appellant] and Vincent came to the door and asked [Victim] to change a hundred dollar bill. [Victim] accommodated the men and returned to his guests. When there was another knock at his door [Victim] assumed that it was a delivery of take-out food and he opened the door. [Appellant] and Vincent forced their way in and demanded money. The two men assaulted [Victim] and [Appellant] shot him in the thigh and chest before fleeing. [Victim]'s guests, who were hiding in the bathroom, called 911. Eventually police officers and paramedics arrived and [Victim] was taken to a hospital where he was treated.

In addition to [Victim], a neighbor who lived two doors from [Victim] testified that he had seen [Appellant] and Vincent in front of the house earlier and that he had warned others to lock their doors. A guest of [Victim]'s also lived nearby. He saw two strangers outside the house. He asked them to leave and locked the door. A female guest saw Vincent enter the apartment and punch [Victim] before she ran to the bathroom to hide. After the incident when he was being treated for his injuries, [Victim] identified both [Appellant] and Vincent in separate photo arrays that he viewed on different days.

PCRA Court Opinion (PCO), 6/20/18, at 2-3 (quoting Trial Court Opinion, 12/17/13, at 2-3).

A jury convicted Appellant of attempted murder, robbery, aggravated assault, burglary, firearms not to be possessed without a license, possession of an instrument of crime, and criminal conspiracy to commit aggravated assault, robbery, and burglary. On December 15, 2011, the trial court sentenced him to an aggregate term of 15-30 years' imprisonment, and a consecutive term of five years' probation. Appellant's judgment of sentence was affirmed on direct appeal. See Commonwealth v. Shaw , 105 A.3d 794 (Pa. Super. 2014) (unpublished memorandum), appeal denied , 630 Pa. 736, 106 A.3d 726 (2015).

Appellant filed a timely, pro se PCRA petition, his first, on November 5, 2015. PCRA Counsel, Stephen Molineux, Esq., was appointed to represent Appellant on November 16, 2015. Attorney Molineux filed an amended PCRA petition on Appellant's behalf on October 19, 2017. A PCRA hearing was held on April 5, 2018. On April 25, 2018, the PCRA petition was denied. Appellant filed a timely Notice of Appeal, and a timely, court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued its Rule 1925(a) opinion on June 20, 2018.

Appellant now presents the following questions for our review:

I. Were Appellant's Fifth, Sixth and Fourteenth Amendment rights violated due to [trial] counsel's ineffective failure to file a pre-trial motion to preclude the in-court identification of ... Appellant?

II. Were Appellant's Sixth Amendment rights violated due to [trial] counsel's ineffective failure to request a Kloiber^[1] instruction?

III. Were Appellant's Sixth Amendment rights violated due to PCRA counsel's ineffective failure to preserve a potentially meritorious claim which was the basis for the PCRA [c]ourt's evidentiary hearing?

Appellant's Brief at 3.

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.

Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal citations omitted).

Appellant's claims concern the alleged ineffectiveness of his trial and PCRA attorneys.

We begin with the presumption that counsel rendered effective assistance. To obtain relief on a claim of ineffective assistance of counsel, a petitioner must rebut that presumption and demonstrate that counsel's performance was deficient, and that such performance prejudiced him. Strickland v. Washington , 466 U.S. 668, 687–91, 104 S.Ct. 2052, 80 L.Ed.2d 674[ ] (1984). In our Commonwealth, we have rearticulated the Strickland Court's performance and prejudice inquiry as a three-prong test. Specifically, a petitioner must show: (1) the underlying claim is of arguable merit; (2) no reasonable basis existed for counsel's action or inaction; and (3) counsel's error caused prejudice such that there is a reasonable probability that the result of the proceeding would have been different absent such error. Commonwealth v. Pierce , 515 Pa. 153, 158–59, 527 A.2d 973, 975 (1987).

Commonwealth v. Dennis , 609 Pa. 442, 17 A.3d 297, 301 (2011) (some internal citations omitted).

In Appellant's first claim, he asserts that trial counsel was ineffective for failing to seek to preclude Victim's in-court identification testimony by means of a pre-trial motion to suppress. Appellant argues that the pre-trial identification of him was so suggestive that the trial court would have suppressed the in-court identification of Appellant by Victim due to the taint of the pre-trial identification.

Whether an out of court identification is to be suppressed as unreliable, and therefore violative of due process, is determined from the totality of the circumstances. Suggestiveness in the identification process is a factor to be considered in determining the admissibility of such evidence, but suggestiveness alone does not warrant exclusion. Identification evidence will not be suppressed unless the facts demonstrate that the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Photographs used in line-ups are not unduly suggestive if the suspect's picture does not stand out more than the others, and the people depicted all exhibit similar facial characteristics.

Commonwealth v. Fulmore , 25 A.3d 340, 346 (Pa. Super. 2011) (cleaned up). Furthermore, "[f]ollowing a suggestive pre-trial identification procedure, a witness should not be permitted to make an in-court identification unless the prosecution establishes by clear and convincing evidence that the totality of the circumstances affecting the witness's identification did not involve a substantial likelihood of misidentification." Commonwealth v. Fowler , 466 Pa. 198, 352 A.2d 17, 19 (1976).

The PCRA court found that Appellant's claim lacked arguable merit for the following reasons:

[Appellant] alleges that [Victim]'s pre-trial identification tainted his in-court identification and that trial counsel was ineffective for failing to file a motion to suppress. In support[,] he alleges only that [Victim] chose [Appellant]'s "picture very quickly after indicating that two guys that he had never seen before, walked up to him and shot him" and also describes[,] inter alia , discrepancies between [Victim]'s description of his assailants and the actual appearance of [Appellant] and his co-defendant. These allegations do not in any way raise the specter of an unduly suggestive identification procedure. Rather, they are matters that the jury would properly consider in determining the accuracy of [Victim]'s identification and the weight to assign his testimony. This claim has no merit.

At trial[,] Officer Charles Schuler of the Darby Borough Police Department testified that he traveled with [Victim] in an ambulance that transported them to the University of Pennsylvania Hospital following the shooting. During the transport Officer Schuler attempted to interview [Victim] because there was a concern that [Victim] would die as a result of the injuries that he sustained. [Victim] appeared to be in a great deal of pain and the EMT's were tending to his wounds and administering oxygen. Officer Schuler reported that [Victim] said that he was shot by two men that he had never seen before. One was a small, dark-skinned black man wearing a gray hoodie and [Victim] could not remember anything about the second man. During the course of this interview Officer Schuler was repeatedly interrupted by medics and at other times [Victim] was unable to respond. At the hospital[,] [Victim] was immediately taken to a trauma bay and he was not questioned any further. Officer Schuler was told that [Victim] couldn't answer any more questions. [Victim] was in a coma for two days following emergency surgery. At trial[,] [Victim] testified that he did not recall speaking to Officer Schuler during his transport and that he had no recollection of ever saying that he had never seen the two men before.

On December 2, 2009[

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