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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHIKUYO BAYETE

Appellant No. 1150 WDA 2014

Appeal from the PCRA Order July 2, 2014

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000473-2012

BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 16, 2015

Appellant Chikuyo Bayete appeals, pro se, from the order entered in 

the Erie County Court of Common Pleas, dismissing his petition for relief 

pursuant to the Post Conviction Relief Act (“PCRA”).

1

 We affirm. 

The relevant facts and procedural history of this appeal are as follows. 

Korrine Nicole Carson (“Korrine”), Jordan Tyler Tracy (“Jordan”), and Jarod 

Tracy (“Jarod”) testified that on November 21, 2011, they were socializing in 

Jordan’s apartment around 2:00 a.m. N.T., 9/12/12 at 17, 19. After 

smoking some marijuana, the three decided to leave the apartment to get 

something to eat. Id. at 20. Korrine opened the door and encountered two 

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1 42 Pa.C.S. §§ 9541-9546.
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armed, masked men, wearing dark clothing, one of whom pushed her to the 

floor and tased her. Id. at 20-22. One of the men pistol-whipped and tased 

Jordan. Id. at 43, 44. According to Jordan, one of the men requested that 

the music be turned up, and it was turned up. Id. at 45. According to 

Jarod, one of the men pointed a gun at his head and asked him to turn the 

T.V. off, and he turned off the T.V. Id. at 76. Jarod then ran out of the 

apartment and went to a neighbor’s house. Id. at 78. One of the men 

pointed a gun at Jordan and told him he wanted his safe.2 Id. at 46-47. 

The armed men took the safe and left the apartment. Id. at 48. 

Jordan heard a gunshot and looked outside. Id. at 51. He saw one of 

the two armed men, later identified as Appellant, dragging the other armed 

man, who had been shot and was later identified as Appellant’s brother, 

Shanti Bayete. Id. at 51, 86. Appellant then lifted his mask and Jordan 

recognized him as the older brother of his friend, Jeremiah. Id. at 51, 56. 

Appellant then ran down the street. Id. at 54.

Patrol Officer James Cousins responded to the scene for a disturbance 

of one shot heard. Id. at 84. Officer Cousins encountered Jordan and 

Korrine by the body, claiming that they had been robbed by the victim and 

that they could identify the other robber. Id. at 84-87. Officer Nick Stadler 

and Officer White also responded to the scene and encountered Appellant 

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2 $3000.00 along with marijuana were later found in the safe.
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running East from the scene, wearing all black, with blood on him, toward 

their patrol car. Id. at 99, 101, 102. The officers apprehended Appellant 

and brought him to the crime scene, where Jordan, Jarod and Korrine 

identified Appellant as one of the robbers. Id. at 90.

According to Appellant, his brother had gone to Jordan’s apartment to 

purchase marijuana. N.T., 9/13/12, at 5. When his brother did not return, 

Appellant left his apartment to find him. Id. at 7. He found his brother 

lying in the street, bleeding, and tried to move him. Id. at 9. Appellant 

then ran to find the police when he was apprehended by them. Id. at 11.

On September 13, 2012, a jury found Appellant guilty of robbery,3

criminal conspiracy/robbery,4theft by unlawful taking,5simple assault,6

possessing an instrument of crime (“PIC”),7and burglary,8relating to the 

home invasion. On November 26, 2012, the court imposed consecutive 

sentences of 84-168 months’ incarceration for robbery, 72-144 months’ 

incarceration for criminal conspiracy/robbery, 12-24 months’ incarceration 

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3 18 Pa.C.S. § 3701(a)(1)(ii).

4 18 Pa.C.S. § 903/3710(a)(1)(ii).

5 18 Pa.C.S. § 3921(a).

6 18 Pa.C.S. § 2701(a)(1).

7 18 Pa.C.S. § 907(a).

8 18 Pa.C.S. § 3502(a).
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for simple assault, and 72-144 months’ incarceration for burglary. The court 

also imposed a concurrent sentence of 18-36 months’ incarceration for PIC.

On December 6, 2012, Appellant filed post-sentence motions, which 

the court denied the next day. On March 1, 2013, Appellant filed an 

untimely pro se notice of appeal. The court appointed counsel and 

ultimately reinstated Appellant’s direct appeal rights nunc pro tunc. 

Appellant filed a notice of appeal on July 17, 2013, and on February 7, 2014, 

this Court affirmed Appellant’s judgment of sentence. 

On April 21, 2014, Appellant filed a timely pro se PCRA petition. The 

court appointed counsel on April 25, 2014, who filed a Turner9/Finley10 no 

merit letter and a petition to withdraw as counsel on May 27, 2014. On June 

5, 2014, the court issued a Pa.R.Crim.P. 907 notice and granted counsel’s 

petition to withdraw. On July 2, 2014, the court denied Appellant’s PCRA 

petition. Appellant filed a timely notice of appeal on July 14, 2014. The 

court did not order, and Appellant did not file, a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On July 21, 2014, 

the court issued a statement pursuant to Pa.R.A.P. 1925(a), incorporating its 

opinion and notice of intent to dismiss PCRA without a hearing pursuant to 

Pa.R.Crim.P. 907, dated June 5, 2014.

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9 Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).

10 Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988).
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Appellant raises the following issues for our review:

WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW 

AND/OR ABUSED ITS DISCRETION IN DENYING AND/OR 

OTHERWISE DISMISSING WITHOUT A HEARING 

APPELLANT’S CLAIMS THAT:

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO 

MOVE FOR SUPPRESSION AND/OR EXCLUSION OF A 

PRE-TRIAL IDENTIFICATION OF APPELLANT WHERE 

SAID IDENTIFICATION WAS OBTAINED BY A 

PROCEDURE SO UNNECESSARILY SUGGESTIVE AND 

CONDUCIVE TO IRREPARABLE MISTAKEN 

IDENTIFICATION AS TO DENY APPELLANT DUE 

PROCESS OF LAW?

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO 

COMPLY WITH THE TECHNICAL NOTICE REQUIREMENTS 

OF PA.R.CRIM.P. 567, THEREBY PRECLUDING THE 

TESTIMONY OF DEFENSE WITNESS, LONI SHEROD, 

WHO WAS AVAILABLE AND WILLING TO TESTIFY AS AN 

ALIBI WITNESS ON APPELLANT’S BEHALF?

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO 

OBJECT TO THE ADMISSION OF IRRELEVANT 

INFLAMMATORY AND UNDULY PREJUDICIAL 

PHOTOGRAPHS, AS CONTAINED ON A COMPACT DISC 

MARKED AS COMMONWEALTH EXHIBIT-“1”, WHICH 

DEPICTED THE BODY OF APPELLANT’S DECEASED 

BROTHER, SHANTI BAYETE?

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO 

OBJECT TO THE ADMISSION OF EVIDENCE THAT 

APPELLANT HAD PREVIOUSLY BEEN CONVICTED OF A 

FELONY DRUG OFFENSE?

Appellant’s Brief at 4. 

In all of his issues, Appellant argues his trial counsel was ineffective 

and he is entitled to a new trial or an evidentiary hearing. Appellant’s issues 

merit no relief.
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Our standard of review is well-settled. “In reviewing the denial of 

PCRA relief, we examine whether the PCRA court’s determination is 

supported by the record and free of legal error.” Commonwealth v. Fears, 

86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted). 

“The scope of review is limited to the findings of the PCRA court and the 

evidence of record, viewed in the light most favorable to the prevailing party 

at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014) 

(citation omitted). “It is well-settled that a PCRA court’s credibility 

determinations are binding upon an appellate court so long as they are 

supported by the record.” Commonwealth v. Robinson, 82 A.3d 998, 

1013 (Pa.2013) (citation omitted). However, this Court reviews the PCRA 

court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080, 

1084 (Pa.Super.2014) (citation omitted). 

Initially, we note that claims of ineffective assistance of counsel are 

cognizable under the PCRA and Appellant’s PCRA petition is timely. See 42 

Pa.C.S. §§ 9543(a)(2)(ii), 9545(b).

This Court follows the Pierce11 test adopted by our Supreme Court to 

review claims of ineffective assistance of counsel:

When a petitioner alleges trial counsel’s ineffectiveness in 

a PCRA petition, he must prove by a preponderance of the 

evidence that his conviction or sentence resulted from 

ineffective assistance of counsel which, in the 

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11 Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
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circumstances of the particular case, so undermined the 

truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place. We have 

interpreted this provision in the PCRA to mean that the 

petitioner must show: (1) that his claim of counsel’s 

ineffectiveness has merit; (2) that counsel had no 

reasonable strategic basis for his action or inaction; and 

(3) that the error of counsel prejudiced the petitioner-i.e., 

that there is a reasonable probability that, but for the error 

of counsel, the outcome of the proceeding would have

been different. We presume that counsel is effective, and 

it is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal 

denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct. 

2029, 164 L.Ed.2d 782 (2006) (internal citations and quotations omitted). 

The petitioner bears the burden of proving all three prongs of this test. 

Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001). “If an 

appellant fails to prove by a preponderance of the evidence any of the 

Pierce prongs, the Court need not address the remaining prongs of the 

test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009), 

appeal denied, 990 A.2d 727 (Pa.2010) (citation omitted). 

First, Appellant argues that because police transported him to the 

crime scene, in a patrol car, immediately after the crime, in handcuffs and 

covered with blood, the out-of-court identification of him as the robber by 

Jordan, Jarod, and Korrine was unduly suggestive. He claims that his 

counsel’s failure to move for suppression of this pre-trial identification was 

ineffective assistance of counsel that entitles him to a new trial. We 

disagree.
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Where the challenge is to a failure to move for suppression 

of evidence, the defendant must establish that there was 

no reasonable basis for not pursuing the suppression claim 

and that if the evidence had been suppressed, there is a 

reasonable probability the verdict would have been more 

favorable. 

Commonwealth v. Melson, 556 A.2d 836, 839 (Pa.Super.1989), appeal 

denied, 575 A.2d 111 (Pa.1990) (quoting Kitrell v. Dakota, 540 A.2d 301, 

306, (Pa.Super.1988), appeal denied, 565 A.2d 1167 (Pa.1988)).

In reviewing the propriety of identification evidence, the 

central inquiry is whether, under the totality of the 

circumstances, the identification was reliable. The purpose 

of a “one on one” identification is to enhance reliability by 

reducing the time elapsed after the commission of the 

crime. Suggestiveness in the identification process is but 

one factor to be considered in determining the admissibility 

of such evidence and will not warrant exclusion absent 

other factors. As this Court has explained, the following 

factors are to be considered in determining the propriety of 

admitting identification evidence: the opportunity of the 

witness to view the perpetrator at the time of the crime, 

the witness’ degree of attention, the accuracy of his prior 

description of the perpetrator, the level of certainty 

demonstrated at the confrontation, and the time between 

the crime and confrontation. The corrupting effect of the 

suggestive identification, if any, must be weighed against 

these factors. Absent some special element of unfairness, 

a prompt “one on one” identification is not so suggestive 

as to give rise to an irreparable likelihood of 

misidentification.

Commonwealth v. Kearney, 92 A.3d 51, 65 (Pa.Super.2014), appeal 

denied, 101 A.3d 102 (Pa.2014).

Instantly, Jordan, Jarod, and Korrine positively identified Appellant as 

the person who had robbed Jordan’s apartment when police brought him to 

them in a marked patrol car, immediately after the shooting. Jarod and 
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Korrine both testified that they had never seen Appellant’s face, but they 

both noticed he was wearing dark clothing. Jordan testified that he saw 

Appellant’s face when he was bending over his brother’s dead body in the 

street around 2:00 a.m., under a streetlight, when he lifted his mask. He 

specifically recognized him as the older brother of Jordan’s friend, Jeremiah. 

A suppression court may have found that, under the totality of the 

circumstances, the identification by Jarod and Korrine was not reliable and 

granted a motion to suppress their out-of-court identification of Appellant. 

However, due to Jordan’s certainty of Appellant’s identity as someone he 

specifically recognized, it is unlikely the court would have found Jordan’s 

identification of Appellant so suggestive as to give rise to an irreparable 

likelihood of misidentification. 

Even if the court had granted a motion to suppress and found that all 

out-of-court identifications were unduly suggestive and tainted because the 

police presented Appellant to the witnesses while he was in handcuffs, in a 

police vehicle, immediately after the crime scene, Appellant’s claim fails.

Although Appellant alleges that the out-of-court identification is the 

only evidence “linking Appellant to [Jordan’s] apartment [and] the crimes 

committed therein”,12 Jordan subsequently identified Appellant in court. 

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12 Appellant’s Brief at 35.
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“When an out-of-court identification is alleged to be tainted, an incourt identification may still stand if, considering the totality of the 

circumstances, the identification had an origin sufficiently distinguishable to 

be purged of the primary taint.” Commonwealth v. Kendricks, 30 A.3d 

499, 506 (Pa.Super.2011), appeal denied, 46 A.3d 716 (Pa.2012) (internal 

quotations and citation omitted). The Commonwealth must prove this 

independent basis for identification through clear and convincing evidence. 

See Commonwealth v. Davis, 17 A.3d 390, 394 (Pa.Super.2011), appeal 

denied, 29 A.3d 371 (Pa. 2011). “An independent basis is established when 

‘the in-court identification resulted from the criminal act and not the 

suggestive [identification procedure].’” Id.

The factors a court should consider in determining whether there 

was an independent basis for the identification include: (1) the 

opportunity of the witness to view the criminal at the time of the 

crime; (2) the witness’s degree of attention; (3) the accuracy of 

the witness’s prior description of the criminal; (4) the level of 

certainty demonstrated by the witness during the confrontation; 

and (5) the length of time between the crime and the 

confrontation.

Kendricks, 30 A.3d at 506. 

With regard to the first factor, Jordan had an opportunity to view 

Appellant while he robbed the apartment, wearing dark clothing and a mask. 

Jordan then saw Appellant’s face while Appellant was bent over his dead 

brother’s body and lifted his mask. Jordan immediately recognized Appellant 

as someone he had seen before in the neighborhood, specifically, the 

brother of Jordan’s friend, Jerimiah. 
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Regarding the second factor, due to the intensity of the robbery, it is 

likely Jordan was paying close attention, even though he had been smoking 

marijuana and had been knocked down and tased. 

Regarding the accuracy of the description, Jordan testified that the two 

people who robbed his apartment were wearing: “Black jacket[s] and 

pantyhose over their face[s]. Just all black.” N.T., 9/12/12, at 43. After 

the shot was fired, Jordan saw Appellant dragging his brother in the street 

and testified: “[Appellant] lifted up his mask and I was like, oh, I know who 

you are.” Id. at 51. Jordan testified that he recognized Appellant as his 

friend’s brother because he had seen him around before in the 

neighborhood. 

Regarding the fourth and fifth factors, Jordan expressed certainty that 

Appellant was the person who robbed him, and he identified him 

immediately after the crime. 

An analysis of these factors make it unlikely that a court would have 

granted a motion to suppress Jordan’s out-of-court identification of 

Appellant. However, even if the court had granted a motion to suppress the 

out-of-court identification, Jordan’s in-court identification was admissible 

because it resulted from the criminal act and not the suggestive 

identification procedure. See Davis, supra. This in-court identification, 

along with the corroborative stories of the other witnesses and Appellant’s 

admission that he was at the crime scene, dragging his brother in the street, 
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implicated Appellant as one of the two robbers. Even if the court had 

granted a motion to suppress the out-of-court identification, there is not a 

reasonable probability that the result of the trial would have been more 

favorable to Appellant. See Carelli, supra. 

Because Appellant was not prejudiced by the alleged error by counsel, 

an evidentiary hearing is unnecessary. See Clemmons, supra. 

Additionally, even if Appellant’s claim had arguable merit, and counsel had 

no strategic basis for failing to file a motion to suppress the out-of-court 

identification, because he has failed to prove by a preponderance of the 

evidence the prejudice prong required by Pierce, his first claim fails. See 

Fitzgerald, supra.

In his second issue, Appellant claims his trial counsel failed to comply 

with the technical notice requirements of Pa.R.Crim.P. 567, which precluded 

Appellant’s alibi witness Loni Sherod from testifying. Appellant concludes his 

counsel’s ineffectiveness entitles him to an evidentiary hearing or a new 

trial. We disagree.

Where a claim is made of counsel’s ineffectiveness for 

failing to call witnesses, it is the appellant’s burden to 

show that the witness existed and was available; counsel 

was aware of, or had a duty to know of the witness; the 

witness was willing and able to appear; and the proposed 

testimony was necessary in order to avoid prejudice to the 

appellant. 

Com. v. Chmiel, 30 A.3d 1111, 1143 (Pa.2011) (quoting Commonwealth 

v. Wayne, 720 A.2d 456, 470 (Pa.1998)).
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To properly grant [relief on an ineffective assistance of 

counsel claim], the PCRA court would have to find that the 

... witness had relevant evidence that could have aided 

[appellant’s] defense, and that there is a reasonable 

probability that the introduction of such evidence would 

have altered the outcome of the trial.

Commonwealth v. Johnson, 966 A.2d 523, 540 (Pa.2009).

In this case, it is not clear that Appellant’s witness was available to 

testify on Appellant’s behalf even if counsel had complied with the technical 

notice requirements of Pa.R.Crim.P. 567. The following transpired at trial:

[DEFENSE COUNSEL]: There is another witness, Lonny 

Sherod, he’s not here, again – he’s wavering again. He’s 

supposed to be here tomorrow...

[PROSECUTOR]: ...I’ll object to that... If you look at the 

notice that he filed, it wasn’t a notice. He didn’t give me 

an address, he didn’t give me a proffer as to where he 

was. And in the notice, he actually specifically said he 

would withdraw the notice if he didn’t have that 

information. So I took him at his word, didn’t file a 

response and until yesterday actually I didn’t think Sherrod 

was going to be part of the case.

[DEFENSE COUNSEL]: ... I had to file it late... I did contact 

Mr. Sherrod on a few occasions. He seemed disinterested 

in me and did not get back to me. The only reason why 

I’m asking the court today is because I have to on behalf 

of my client because he came forward last night and I 

know it’s late notice.

THE COURT: No. I will not allow alibi.

N.T., 9/12/12, at 126-127.

Although the court did not conduct an evidentiary hearing, it is unlikely 

that Appellant would meet his burden of proving that the witness was 

available or that counsel had a reason to know that Appellant wanted to 
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present him as an alibi witness. Even if the court had permitted Mr. Sherod 

to testify, the transcript reveals that the witness was uncooperative and did 

not appear in court. Further, because Appellant only came forward the night 

before trial about his request to introduce Mr. Sherod as an alibi witness, 

counsel may not have been aware of the witness at all. 

Even if Appellant could prove that his claim had arguable merit and 

that counsel had no reasonable strategy for failing to call Mr. Sherod as an 

alibi witness, Appellant again fails to prove by a preponderance of the 

evidence the prejudice prong established in Pierce.

Appellant admits to being at the crime scene, minutes after the crime, 

holding his bleeding brother in his arms in the street. Jordan testified that 

he saw Appellant rob his apartment and then lift his mask while standing 

over the body. The police testified that they saw Appellant immediately 

after the crime, covered in blood and wearing dark clothing. Appellant 

testified that he was coincidentally there at that time to check on his 

brother, who had departed to purchase marijuana from Jordan. If he had 

testified, Loni Sherod may or may not have corroborated Appellant’s story. 

However, he would not have presented any new information that would have 

placed Appellant anywhere other than at the crime scene immediately after 

the crime. Thus, Appellant has failed to prove by a preponderance of the 

evidence that the outcome of the trial would have been different if Mr. 

Sherod had testified.
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In his third issue, Appellant argues his counsel was ineffective for 

failing to object to “inflammatory and unduly prejudicial photographs” of 

Appellant’s deceased brother, Shanti Bayete. Appellant’s claim lacks 

arguable merit because Appellant was not on trial for the murder of his 

brother, and he fails to articulate how the photographs were prejudicial to 

his trial for burglary.

In his fourth issue, Appellant claims his trial counsel was ineffective for 

failing to object the admission of evidence that Appellant had been 

previously convicted of a felony drug offense. Again, Appellant’s claim fails.

We recognize that, pursuant to Pa.R.E. 403, relevant 

evidence may be excluded “if its probative value is 

outweighed by a danger of ... unfair prejudice.” In a 

Comment to Rule 403, unfair prejudice is defined as “a 

tendency to suggest decision on an improper basis or to 

divert the jury’s attention away from its duty of weighing 

the evidence impartially.” We are unable to conclude that, 

in a § 6105 persons not to possess firearms case, a 

defendant suffers unfair prejudice merely by the admission 

into evidence of his or her certified conviction of a specific, 

identified, predicate offense, which has been offered by the 

Commonwealth to prove the prior conviction element of § 

6105.

Any possibility of unfair prejudice is greatly mitigated by 

the use of proper cautionary instructions to the jury, 

directing them to consider the defendant’s prior offense 

only as evidence to establish the prior conviction element 

of the § 6105 charge, not as evidence of the defendant’s 

bad character or propensity to commit crime.

Commonwealth v. Jemison, 98 A.3d 1254, 1262 (Pa.2014). 
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“The law presumes that the jury will follow the instructions of the 

court.” Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa.2011) 

(quoting Commonwealth v. Spotz, 896 A.2d 1191, 1224 (Pa.2006).

Instantly, Appellant was charged with possessing a firearm, persons 

not to possess firearms. Counsel stipulated to Appellant’s prior conviction as 

an element of this crime, and the court gave a curative instruction:

Let me also say as to the stipulation to the fact that 

[Appellant] has a prior conviction which precludes him 

from owning a firearm, that prior conviction is not in any 

way, shape, or form any evidence of [Appellant’s] guilt in 

this case. The sole purpose for the admission of that prior 

conviction is to show that [Appellant] is not allowed, under 

Pennsylvania law, to own a firearm because of it, and that 

is part of the charge that is – has been lodged against him 

at Count Number 11 and I will instruct you specifically on 

the elements of that charge at a later time.

N.T., 9/12/12, at 124-125.

Because the law presumes the jury followed the court’s instruction, 

Appellant has suffered no prejudice.13

Order affirmed.

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13 Additionally, Appellant testified about illegal drug transactions and his 

knowledge and understanding of them. See N.T., 9/13/12, at 5, 17. Even if 

evidence of Appellant’s prior conviction had not been introduced, the jury 

would have been aware of Appellant’s prior bad acts.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/16/2015