Opinion
J-S38004-17 No. 1716 EDA 2016
08-28-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. TYREEK MAXWELL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009181-2010 BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, Tyreek Maxwell, appeals from the order entered in the Philadelphia County Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
42 Pa.C.S.A. §§ 9541-9546.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises the following issues for our review:
DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION IN DENYING [APPELLANT'S] PCRA CLAIM RAISING OUT OF COURT PHOTO ARRAY IDENTIFICATION [THAT] WAS MADE UNDER UNDULY SUGGESTIVE CIRCUMSTANCES, WHERE
THE EVIDENCE ESTABLISHED ONE EYE-WITNESS WAS INFLUENCED IN MAKING IDENTIFICATION BY DETECTIVES?
DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION IN DENYING PCRA RELIEF WHERE THE IN[-]COURT IDENTIFICATION WAS BASED ON OUT[-]OF[-]COURT TAINTED PHOTO ARRAY IDENTIFICATION AND A RESULT OF CONFRONTATION AT [THE] PRELIMINARY HEARING AND NOT [THE] WITNESS['] PERSONAL RECOLLECTION OF THE EVENTS SURROUNDING [THE] CRIME?
DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION IN MAKING HIS RULING WHEN [THE] PCRA COURT DENIED [APPELLANT'S] CLAIM OF BEING DENIED DUE PROCESS AND [A] FAIR TRIAL IN VIOLATION OF THE 6TH AND 14TH AMENDMENT[S] TO THE UNITED STATES CONSTITUTION?
DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION IN DENYING [APPELLANT] THE RIGHT TO AMEND [THE] PCRA PETITION TO CURE PLEADING DEFECTS IN [APPELLANT'S] FIRST TIMELY PCRA PETITION?
WAS DIRECT APPEAL COUNSEL INEFFECTIVE FOR FAILING TO RAISE: (A) TRIAL COURT ERROR WHEN [THE] TRIAL COURT IMPROPERLY INSTRUCTED [THE] JURY REGARDING A CHANGE OF APPEARANCE; [AND] (B) TRIAL COURT ERROR IN ALLOWING [THE] COMMONWEALTH TO INTRODUCE OTHER ACTS AND/OR PRIOR BAD ACTS EVIDENCE DURING TRIAL?
DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION IN DENYING [APPELLANT'S] PCRA CLAIM THAT DIRECT APPEAL [COUNSEL] AND TRIAL COUNSEL WERE INEFFECTIVE FOR FAILING TO CHALLENGE AND/OR DISCOVER DURING DIRECT APPEAL AND TRIAL THE EXISTENCE AND IDENTITY TO BECOME A SUSPECT AND INCLUDED IN [THE] LINE-UP, THEREBY CAUSING AND/OR FACILITATING THE DEPRIVATION OF [APPELLANT'S] 6TH AND 14TH AMENDMENT RIGHT TO CONFRONTATION?
DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION IN DENYING [APPELLANT'S] PCRA CLAIM THAT TRIAL
COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE WEIGHT OF THE EVIDENCE?(Appellant's Brief at 4).
DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION IN DENYING [APPELLANT'S] PCRA CLAIM OF ACTUAL INNOCENCE?
DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION IN DENYING [APPELLANT'S] PCRA CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CALL AND/OR USE ALIBI WITNESSES AND DEFENSE DURING TRIAL?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Glenn B. Bronson, we conclude Appellant's issues on appeal merit no relief. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented. ( See PCRA Court Opinion, filed August 16, 2016, at 5-15) (finding: (1) Superior Court rejected on direct appeal Appellant's claim that unduly suggestive photo array led to identification of Appellant as perpetrator; because Appellant previously litigated this claim, it is not cognizable on collateral review; (2) Appellant could have raised on direct appeal claim that in-court identification was based on unduly suggestive out-of-court photo array and confrontation at preliminary hearing; Appellant failed to do so, so this claim is waived; (3) exhibits D2 and D3 were forms victims filled out at pre-trial lineup, which described perpetrators of robbery; Appellant made formal request for exhibits during PCRA proceeding; however, Appellant failed to demonstrate extraordinary circumstances entitled him to discovery of exhibits; thus, PCRA court's denial of Appellant's request for exhibits did not deny his due process rights; (4-5) Appellant failed to raise on direct appeal claims that trial court erred when it issued jury instruction about change of appearance and allowed Commonwealth to introduce "other acts" evidence; thus, these particular claims are waived; (6) Detective Leahy created photo array based on tips police received in response to news coverage of robbery; Detective Leahy showed photo array to two victims, who both identified Appellant as one of robbers; Appellant claims trial counsel was ineffective for failure to learn source of tips, which led to violation of Appellant's Confrontation Clause rights at trial; however, tips led only to creation of photo array; as such, statements about tips at trial were used merely to explain Detective Leahy's course of investigation, not to prove truth of matter asserted; thus, Confrontation Clause challenge would have been meritless; further, trial counsel's failure to discover and challenge source of tip information did not prejudice Appellant because discovery of source would have only identified additional inculpatory evidence against Appellant; therefore, knowledge of source of tips would not have led to different outcome at trial; (7) Appellant did not raise in PCRA court claim that trial counsel was ineffective for failure to challenge weight of evidence; therefore, claim is waived on appeal; Appellant's claim also fails to explain how verdict was against weight of evidence or how trial counsel was ineffective for failing to challenge weight of evidence; thus, Appellant's claim is further waived for vagueness; (8) Appellant claims exhibits and trial testimony contradict identification evidence at trial and prove Appellant was not perpetrator of robbery; Appellant asserts direct appeal counsel should have raised this challenge to weight of evidence claim on direct appeal; initially, direct appeal counsel cannot be ineffective for failure to raise actual innocence claim because Appellant did not challenge weight of identification evidence in post-sentence motion; further, Appellant cannot demonstrate he was prejudiced by direct appeal counsel's actions; two victims identified Appellant in photo array, and at trial, as one of individuals who had robbed them at gunpoint; while Appellant claims victims' failure to mention tattoos or identify Appellant in lineup proves misidentification, jury was free to accept victims' testimony and reject Appellant's arguments; moreover, fact that surveillance video was unable to delineate Appellant's tattoos did not undermine convincing identification testimony at trial; because compelling evidence existed to support jury's conclusion that Appellant committed crime, court would have denied weight of evidence challenge; thus, direct appeal counsel was not ineffective for failing to raise actual innocence claim on this basis; (9) evidence presented at PCRA hearing established that counsel had reasonable basis for not calling alibi witnesses at trial; at PCRA hearing, trial counsel testified she spoke with each potential alibi witness prior to trial; according to trial counsel, each potential alibi witness gave trial counsel conflicting answers to Appellant's whereabouts on date of robbery; trial counsel said she did not think witnesses provided true alibi defense because they could not remember with specificity when Appellant left their presence; trial counsel explained she chose not to call witnesses at trial because their stories were not particularly strong or helpful; trial counsel also noted that witnesses' stories conflicted with Appellant's version of events on night of robbery; trial counsel was concerned presentation of weak alibi evidence would cause jury to question entire defense; PCRA court believed trial counsel's testimony, finding counsel had reasonable basis for failure to present alibi evidence). Accordingly, we affirm on the basis of the PCRA court's opinion.
In his PCRA petition, Appellant raised claims of trial court error contained in issue five without any reference to ineffectiveness of direct appeal counsel. The PCRA court properly determined Appellant waived these claims for failure to raise them on direct appeal. Appellant now raises the allegations of trial court error under the rubric of ineffective assistance of direct appeal counsel; however, Appellant's failure to do so in his PCRA petition results in waiver for purposes of our review. See Commonwealth v. Ousley , 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal denied, 612 Pa. 698, 30 A.3d 487 (2011) (explaining issues not raised in PCRA petition cannot be considered on appeal). To the extent Appellant asserts the PCRA court should have warned him of the pleading defect related to the allegations of trial court error, Appellant fails to cite any relevant law to support his claim. See Commonwealth v. Owens , 750 A.2d 872, 877 (Pa.Super. 2000) (explaining failure to cite case law or other legal authority in support of argument results in waiver of claim). Further, Appellant chose to proceed pro se despite appointment of counsel. Appellant cannot fault the PCRA court for any pleading defect, because the PCRA court has no duty to act as counsel for Appellant, who must accept the consequences of his decision to proceed pro se. --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/28/2017
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