J-A25043-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

JIHAD RAGUEEB BASHIR 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 197 MDA 2020

Appeal from the PCRA Order Entered January 8, 2020

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0007373-2012

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

MEMORANDUM BY KING, J.: FILED: JANUARY 15, 2021

Appellant, Jihad Ragueeb Bashir, appeals from the order entered in the 

York County Court of Common Pleas, which denied his first petition filed under 

the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546. We 

affirm. 

The relevant facts and procedural history of this case are as follows:

[Appellant]’s convictions arose from the September 6, 2011 

shooting of [Victim], who testified as follows. On the night 

in question, [Victim] and his aunt were smoking cigarettes

outside the home of [Victim]’s mother on 207 Jefferson 

Avenue, York. [Victim]’s aunt entered the house to use the 

bathroom, and [Victim] remained outside. [Victim] looked 

to the right, to the left, and again to the right. When he 

turned back to look left, [Victim] saw “a guy standing in 

front of [him].”

At that time [Victim] was not impaired, and the man was 

ten feet away. [Victim] recognized the person and identified 

him at trial as [Appellant]. [Appellant] asked [Victim] where 

[Victim]’s nephew “Blizz” was located. [Appellant] then 
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“started fumbling around,...pulled out a gun,” and shot 

[Victim] in the face with a .357 Magnum. After shooting 

[Victim] a single time, [Appellant] ran away.

[Victim] explained that he recognized [Appellant] because 

[Appellant]’s mother had introduced [Appellant] to [Victim]. 

[Victim] also saw [Appellant] two weeks prior to the incident 

seated in a car. At that time, [Victim] overheard [Appellant] 

telling someone that his name was [Appellant]. [Victim] 

testified that he did not initially remember who shot him, 

but when his memory returned in November, he called his 

mother and told her that [Appellant], who was Tanoue’s 

son, had committed the crime. 

Eartha, [Victim]’s mother, confirmed that, in November 

2011, while [Victim] was still hospitalized, he called her on 

the telephone and said, “[I] remember now, I know who 

shot me, and he said [Appellant]. He said big Tanoue’s 

son.” [Victim’s mother] did not know [Appellant] but was 

acquainted with his mother, whose first name was Tanoue. 

[Victim]’s brother, Michael, also testified that, in November 

2011, [Victim]’s memory of the events of the shooting 

returned. [Victim] also told Michael that [Appellant], 

Tanoue’s son, was his assailant. 

York Detective Travis Sowers testified that he was the lead 

detective in the investigation into the shooting. After 

[Victim] returned to his mother’s home from the hospital 

and rehabilitation, Detective Sowers visited him. Detective 

Sowers testified, “I asked him who shot him. He advised 

me [Appellant]. The next thing I asked, [Appellant]? And 

he said, yes, the one who lives on South Street.” Detective 

Sowers told the jury that [Appellant] lived with his mother, 

Tanoue..., at 21 East South Street. Five days after this first 

interview, Detective Sowers showed [Victim] [Appellant]’s 

picture, and “he hit the picture and said that’s the guy who 

shot me right there, that’s Tanoue’s son[.]” 

Based upon this evidence, a jury convicted [Appellant] of 

attempted murder and aggravated assault graded as a firstdegree felony. The matter proceeded to sentencing on May 

1, 2014, where the court imposed a twenty to forty year 

term of imprisonment as to the attempted murder and no 

penalty on aggravated assault since that crime merged for 
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sentencing purposes. 

(PCRA Court Opinion, filed January 6, 2020, at 1-3) (internal citations 

omitted). This Court affirmed the judgment of sentence on June 4, 2015, and 

our Supreme Court denied allowance of appeal on December 17, 2015. See 

Commonwealth v. Bashir, 122 A.3d 1124 (Pa.Super. 2015) (unpublished 

memorandum), appeal denied, 634 Pa. 724, 128 A.3d 1204 (2015). 

On August 24, 2016, Appellant filed a timely PCRA petition pro se, and 

the PCRA court subsequently appointed counsel. Counsel filed an amended 

petition on February 21, 2017, and a second amended petition on April 3, 

2017. In the petitions, Appellant argued, inter alia, that trial counsel failed to 

call an expert witness who could have addressed Victim’s competency to 

testify and failed to file a motion to challenge Victim’s competency. Appellant 

also requested fees to retain Dr. Amy Taylor, an expert in forensic psychology, 

to meet with Victim and determine if he had been competent to testify at trial. 

Following a status hearing on April 25, 2017, the court granted Appellant’s 

request for fees to retain Dr. Taylor, but limited Dr. Taylor’s report to a review 

of Victim’s medical records prior to trial and did not permit a face-to-face 

interview with Victim. 

Following changes in counsel, current PCRA counsel filed another

amended petition on September 30, 2019, and the court conducted a PCRA 

hearing on October 30, 2019. Detective Sowers, Dr. Taylor, and trial counsel 

testified at the hearing. Detective Sowers repeated much of his trial testimony 
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regarding Victim’s identification of Appellant. Dr. Taylor testified that she 

studied Victim’s medical records from September 2011 to August 2012, and 

while she could not provide an opinion as to Victim’s competency to testify at 

the time of trial, she stated that had she been consulted prior to trial, she 

would have suggested that a competency evaluation of Victim be conducted. 

Trial counsel testified that she addressed Victim’s hallucinations, brain 

swelling, and inconsistencies in his memory by calling or cross-examining 

various medical and lay witnesses, including psychiatrist, Dr. Stephen Dilts; 

Dr. Daniel Carney, the emergency room doctor who treated Victim following 

the shooting; and Lori Genovese, the medical custodian of records. Trial 

counsel testified that she and Appellant had numerous conversations about 

the problems with Victim’s memory and Victim’s identification of Appellant. 

Trial counsel, however, conceded that she did not review or consider 

Pennsylvania Rule of Evidence 601 prior to Appellant’s trial, and had never 

previously challenged an adult witness’ competency. Trial counsel further 

stated that she did not consider challenging Victim’s competency or hiring an 

expert to assist in doing so, and now believes her failure to do so was a 

mistake. Trial counsel also stated that she should have filed a motion to 

suppress Victim’s identification of Appellant based on Victim’s memory issues. 

The PCRA court denied relief on January 8, 2020. On January 24, 2020, 

Appellant filed a timely notice of appeal. On January 27, 2020, the court 

ordered Appellant to file a concise statement of errors complained of on appeal 
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pursuant to Pa.R.A.P. 1925(b); Appellant complied on February 24, 2020. 

Appellant raises the following issues on appeal: 

Whether the [PCRA] court erred and abused its discretion 

by finding that Appellant’s trial counsel was not ineffective 

for failing to file a motion challenging the competency of the 

victim?

Whether the [PCRA] court erred and abused its discretion 

by finding that Appellant’s trial counsel was not ineffective 

for failing to consult with an expert witness to opine whether 

or not the victim was competent to testify pursuant to 

Pa.R.[E.] 601?

Whether the [PCRA] court erred and abused its discretion 

by finding that Appellant’s trial counsel was not ineffective 

for failing to file a motion to suppress the victim’s 

identification of Appellant, which was the product of police 

suggestiveness and confabulation by the victim?

(Appellant’s Brief at 4). 

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s determination 

and whether its decision is free of legal error. Commonwealth v. Conway, 

14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 

(2011). This Court grants great deference to the findings of the PCRA court if 

the record contains any support for those findings. Commonwealth v. Boyd, 

923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 

(2007). We do not give the same deference, however, to the court’s legal 

conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). 

Traditionally, credibility issues are resolved by the trier of fact who had the 

opportunity to observe the witnesses’ demeanor. Commonwealth v. Abu-
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Jamal, 553 Pa. 485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120 

S.Ct. 41, 145 L.Ed.2d 38 (1999). “A PCRA court passes on witness credibility 

at PCRA hearings, and its credibility determinations should be provided great 

deference by reviewing courts.” Commonwealth v. Johnson, 600 Pa. 329, 

356-357, 966 A.2d 523, 539 (2009). 

Pennsylvania law presumes counsel has rendered effective assistance. 

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When 

asserting a claim of ineffective assistance of counsel, the petitioner is required 

to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had 

no reasonable strategic basis for her action or inaction; and, (3) but for the 

errors and omissions of counsel, there is a reasonable probability that the 

outcome of the proceedings would have been different. Commonwealth v. 

Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong 

of the test for ineffectiveness will cause the claim to fail. Williams, supra. 

“The threshold inquiry in ineffectiveness claims is whether the 

issue/argument/tactic which counsel has foregone and which forms the basis 

for the assertion of ineffectiveness is of arguable merit....” Commonwealth 

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be 

found ineffective for failing to pursue a baseless or meritless claim.” 

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004). 

Once this threshold is met we apply the ‘reasonable basis’ 

test to determine whether counsel’s chosen course was 

designed to effectuate [her] client’s interests. If we 

conclude that the particular course chosen by counsel had 
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some reasonable basis, our inquiry ceases and counsel’s 

assistance is deemed effective. 

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted). 

Prejudice is established when [an appellant] demonstrates

that counsel’s chosen course of action had an adverse effect

on the outcome of the proceedings. The [appellant] must 

show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the 

outcome. In [Kimball, supra], we held that a “criminal 

[appellant] alleging prejudice must show that counsel’s

errors were so serious as to deprive the defendant of a fair 

trial, a trial whose result is reliable.” 

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002) 

(some internal citations and quotation marks omitted). 

In his first issue, Appellant argues trial counsel was ineffective for failing 

to file a motion to challenge Victim’s competency to testify. Appellant 

contends Victim suffered a gunshot wound to the head that caused “severe 

brain injuries, hallucinations, and the inability to separate confabulation from 

reality,” and was diagnosed with “dementia secondary to a traumatic brain 

injury.” (Appellant’s Brief at 12-13). Appellant claims these injuries 

prevented Victim from initially remembering who shot him, as Victim did not 

identify Appellant as his assailant until several months after the attack. 

Appellant suggests that someone could have told Victim to incriminate 

Appellant, or Victim might have hallucinated that Appellant was his attacker. 

Appellant avers he has always maintained his innocence of the crime, and no 

other evidence outside of Victim’s testimony points toward his guilt. 
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Appellant further emphasizes Dr. Taylor’s opinion that Victim should 

have been examined by a psychologist prior to trial to determine whether his 

traumatic brain injury prevented him from remembering who shot him. 

Appellant maintains Victim’s injuries, symptoms, and diagnosis, as well as the 

delay in identification, were sufficient to prove Victim’s incompetency under 

Rule 601 of the Pennsylvania Rules of Evidence. Appellant concludes this 

Court should reverse the PCRA court’s order and grant him a new trial. We 

disagree.

As a general matter, the Pennsylvania Rules of Evidence presume all 

persons are competent to be a witness. Pa.R.E. 601(a). Specifically, Rule 

601 provides, in pertinent part:

Rule 601. Competency

(a) General Rule. Every person is competent to be a 

witness except as otherwise provided by statute or in 

these rules.

(b) Disqualification for Specific Defects. A person is 

incompetent to testify if the court finds that because of 

a mental condition or immaturity the person:

(1) is, or was, at any relevant time, incapable of perceiving 

accurately;

(2) is unable to express himself...so as to be understood 

either directly or through an interpreter;

(3) has an impaired memory; or

(4) does not sufficiently understand the duty to tell the 

truth.

Pa.R.E. 601. This Court has interpreted Rule 601 as follows: 
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In general, the testimony of any person, regardless of his 

mental condition, is competent evidence, unless it 

contributes nothing at all because the victim is wholly 

untrustworthy. Thus, in Pennsylvania, [a witness is] 

presumed competent to testify, and it is incumbent upon the 

party challenging the testimony to establish incompetence. 

Above all, given the general presumption of 

competency of all witnesses, a court ought not to 

order a competency investigation, unless the court 

has actually observed the witness testify and still has 

doubts about the witness’ competency.

Claims that a witness’ memory has been corrupted by 

insanity, mental retardation, hypnosis, or taint go to the 

competency of that witness to testify. The capacity to 

remember and the ability to testify truthfully about the 

matter remembered are components of testimonial 

competency. The party alleging a witness is incompetent to 

testify must prove that contention by clear and convincing 

evidence.

Commonwealth v. Boich, 982 A.2d 102, 109-10 (Pa.Super. 2009) (en 

banc), appeal denied, 607 Pa. 689, 3 A.3d 669 (2010) (internal citations and 

quotation marks omitted) (emphasis added). 

Instantly, in addressing this issue, the PCRA court reasoned, in pertinent 

part, as follows:

The trial court observed [Victim] testify at trial and, a few 

months after the trial at [Appellant]’s post-sentence motion 

hearing, this [c]ourt affirmed [Victim]’s obvious competency 

to testify at trial. At that time this [c]ourt stated, “[Victim] 

testified he identified [Appellant] as the shooter. When his 

testimony was presented, there was no indication in the 

eyes of the [c]ourt that he was incompetent or unable to 

reason, or had any sort of cognitive defect that rendered 

him unable to testify or to be incompetent. The jury could 

rely upon his testimony.” The [c]ourt, at that time, had the 

benefit of recently and directly witnessing [Victim]’s 

testimony and found that [Victim] satisfied the factors for 

determining competency laid out by the Pennsylvania 
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Supreme Court: “(1) the capacity to perceive an event with 

accuracy; (2) the ability to remember; (3) the ability to 

understand questions and communicate a response; and (4) 

a consciousness of the duty to tell the truth.”

The [c]ourt also had the benefit of the testimony of Dr. 

Stephen Dilts, a defense witness, who testified at length at 

trial regarding the potential defects in [Victim]’s reasoning 

caused by [Appellant]’s infliction of a gunshot wound to 

[Victim]’s brain. Dr. Dilts, a qualified psychiatrist, testified 

before the [c]ourt and jury regarding [Victim]’s possible loss 

of perception and memory. This [c]ourt, with the insight 

provided by the psychiatrist’s expert testimony, found 

[Victim] competent to testify. Under Rule 601(b), a 

determination of a witness’s competency is ultimately in the 

hands of the trial court. Because there was not a reasonable 

probability that this [c]ourt would have found [Victim] 

incompetent to stand trial even if his trial counsel had filed 

a motion challenging his competence, [Appellant] was not 

prejudiced by the choice to not submit such a motion and 

his claim is denied.2

2 To eliminate any doubt caused by the revisionist 

approach of this PCRA, [Victim] at the time of his trial 

presented no indication of lack of competency. He did 

have some recollection issues, which were no different 

than any other fact witness. [Appellant] repeatedly 

confuses the concepts of impeachment regarding 

memory accuracy and lack of competency in his PCRA. 

The ability to remember is one factor in determining 

competency.... Having a flawless memory is not. 

(PCRA Court Opinion at 6-7) (internal citations omitted). We see no reason 

to disrupt the PCRA court’s reasoning. As the PCRA court explained, the trial 

court witnessed Victim’s testimony and had no doubts as to Victim’s 

competency. See Boich, supra. Thus, Appellant’s ineffectiveness claim fails. 

See Kimball, supra.

In his second issue, Appellant argues trial counsel was ineffective for 
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failing to consult with an expert witness regarding Victim’s competency. 

Appellant alleges trial counsel was aware of Victim’s medical history and 

related cognitive and memory issues. Appellant contends that despite this 

information, counsel admitted she never reviewed Rule 601, considered filing 

a competency motion, or retained the services of an expert witness to evaluate 

Victim’s competency prior to trial. Appellant further emphasizes that counsel 

admitted at the PCRA hearing that it was an error not to challenge Victim’s 

competency or hire an expert witness to evaluate him. 

Appellant highlights Dr. Taylor’s PCRA hearing testimony that Victim was 

experiencing dementia following the shooting and prior to trial, which 

warranted a psychiatric examination to determine whether he was competent 

to testify. Appellant asserts that had trial counsel consulted with Dr. Taylor 

regarding Victim’s competency prior to trial, there is a reasonable probability 

that the trial court would have ordered Victim to undergo a psychiatric 

examination or disqualified him as a witness pursuant to Rule 601. Appellant 

concludes this Court should reverse the PCRA court’s order and remand for a 

new trial. We disagree. 

In response to Appellant’s claims, the PCRA court explained:

[Appellant]...argues that his trial counsel was ineffective for 

failing to consult with an expert witness [regarding] whether 

[Victim] was medically competent to testify as a witness in 

this case pursuant to Pa.R.E. 601. ... [Appellant]’s trial 

counsel had an expert witness testify at trial regarding the 

extent and severity of [Victim]’s injuries and their potential 

effects on [Victim]’s cognition. Hiring another expert merely 

to advise trial counsel on whether to file a competency 
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evaluation would have been an unreasonable course of 

conduct for trial counsel, a public defender, when the judge 

and jury already had the benefit of the testimony of a 

qualified expert who had personally interviewed [Victim] 

during his recovery before trial. 

This case evolved over a continuum of time that began with 

the shooting and ended with the trial. The PCRA defense 

has repeatedly sought to mix medical facts and brain trauma 

conditions that may have existed right after [Victim] was 

shot (and then resolved), and to bootstrap those 

impairments into creating an argument that a competency 

evaluation was needed during judicial proceedings before 

[Victim] testified. This argument is built on a foundation of 

faulty logic that ignores that [Victim] significantly healed 

and recovered his memory prior to trial. This healing and 

progress was reflected in the medical testimony at trial. The 

fact that the defense counsel did not choose to pursue this 

same path of faulty logic is not ineffectiveness—it was good 

lawyering, by not pursuing a meritless position. 

As part of his PCRA proceedings, [Appellant] hired a forensic 

psychologist, Dr. Amy Taylor, to create a report, based on 

trial transcripts and a review of [Victim]’s past psychological 

and medical evaluations. She was not granted a face-toface interview with [Victim]. She sought to analyze 

[Victim]’s potential competence at the time of trial from 

records created years earlier. [Appellant] argues Dr. 

Taylor’s report, created four years after [Appellant]’s trial 

concluded, shows that [Victim] should have received a 

mental competency evaluation prior to giving testimony at 

trial. This is not true. The report was inconclusive at best. 

The most the forensic expert could testify to was that, based 

on her review of past records, if she had been consulted 

prior to the trial, she would have recommended that the 

[c]ourt order a psychological examination of [Victim] to 

determine whether or not he was medically competent to 

testify. Dr. Taylor made it clear that since she was not 

personally at the trial and did not have the opportunity to 

interview the witness, her conclusions could not be made 

with a reasonable degree of psychological certainty. Her 

testimony, five years after the trial, does not convince this 

[c]ourt, which had the benefit of examining [Victim] 

directly, that hiring a second expert prior to trial to expound 
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on [Victim]’s competence would have been a reasonable 

course of action. 

(PCRA Court Opinion at 9-11) (internal citations omitted). We agree with the 

PCRA court’s analysis of this issue. Trial counsel had an expert witness testify 

at trial concerning Victim’s injuries and their effect on Victim’s memory and 

cognition. Appellant is unable to show that trial counsel’s failure to consult 

with an additional expert witness concerning Victim’s competency to testify

was unreasonable.1 See Pierce, supra. 

In his third issue, Appellant argues trial counsel was ineffective for 

failing to file a pre-trial motion to suppress Victim’s identification of Appellant 

as unduly suggestive. Appellant emphasizes that Victim was shot in the head, 

suffered severe brain damage, and was hospitalized for a lengthy period of 

time following the September 6, 2011 attack. Appellant avers that police 

received information from a third party on May 3, 2012, that Victim named 

Appellant as the shooter. Appellant asserts that on May 8, 2012, a police 

officer arrived at Victim’s home to find Victim sleeping and disoriented. 

Appellant claims the officer showed Victim a photo lineup with Appellant’s 

____________________________________________

1 To the extent Appellant alleges trial counsel’s ineffectiveness for failing to 

call another expert witness to testify at trial (as opposed to consulting an 

expert witness pre-trial), this claim is waived for Appellant’s failure to specify 

it in his Rule 1925(b) statement. See Commonwealth v. Castillo, 585 Pa. 

395, 888 A.2d 775 (2005) (stating issues not raised in Rule 1925(b) statement 

will be deemed waived for appellate review). See also Commonwealth v. 

Reeves, 907 A.2d 1 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 

956 (2007) (explaining Rule 1925(b) statement that is not specific enough for 

court to identify and address issues may also result in waiver). 
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picture in it, but Victim was unable to identify the shooter. Appellant contends

the officer then showed Victim a single enlarged photograph of Appellant and 

asked if that was the person who shot Victim; Victim stated it was. Given the 

nature of Victim’s injuries and his previous inability to make an identification, 

Appellant asserts that the officer’s presentation to Victim of a single 

photograph of Appellant was unduly suggestive. Appellant maintains that trial 

counsel’s failure to file a motion to suppress Victim’s identification was 

objectively unreasonable, and that Appellant was prejudiced by counsel’s 

failure to do so. Appellant concludes this Court should reverse the PCRA 

court’s order and remand for a new trial. We disagree.

“When...an assertion of ineffective assistance of counsel is based upon 

the failure to pursue a suppression motion, proof of the merit of the underlying 

suppression claim is necessary to establish the merit of the ineffective 

assistance of counsel claim.” Commonwealth v. Carelli, 546 A.2d 1185, 

1189 (Pa.Super. 1988), appeal denied, 521 Pa. 609, 557 A.2d 341 (1989)

(citations omitted). Furthermore,

In reviewing the propriety of identification evidence, the 

central inquiry is whether, under the totality of the 

circumstances, the identification was reliable....

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 
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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. 

Commonwealth v. Moye, 836 A.2d 973, 976 (Pa.Super. 2003), appeal

denied, 578 Pa. 694, 851 A.2d 142 (2004). 

Instantly, the PCRA court addressed this issue, in pertinent part, as 

follows:

[Appellant] argues the identification procedure used by the 

police was unduly suggestive given the totality of the 

circumstances. [Appellant] alleges the suggestiveness 

comes from the detective showing [Victim] [Appellant]’s 

picture singly, after getting a lethargic response during a full 

photographic line-up. [Appellant] claims his trial counsel 

was ineffective because she did not try to suppress this outof-court identification. The claim is rejected because the 

record clearly shows [Victim] had previously identified 

[Appellant] verbally before the allegedly suggestive 

photographic lineup and there was an obvious independent 

basis for the identification. [Victim] testified at trial that he 

knew who [Appellant] was through his prior acquaintance

with [Appellant]’s mother, Tanoue..., who he knew lived on 

the “South Side” of town. This is part of the independent 

basis for [Victim]’s knowledge of [Appellant]’s identity 

outside the photo lineup. [Appellant] is correct that the 

suggestiveness of an out-of-court identification must be 

determined by the totality of the circumstances, but in this 

case, the totality does not weigh in his favor. 

As the Superior Court noted in [its] opinion rejecting 

[Appellant]’s claim that [Victim]’s identification was against 

the weight of the evidence, “Two witnesses, [Victim]’s 

mother and brother, confirmed that [Victim] recalled who 

perpetrated the crime a couple of months after the shooting. 

[Victim] thereafter identified Appellant as the shooter, and 

he knew the name of Appellant’s mother and where they 

lived.” These identifications were prior to and independent 

of the allegedly suggestive photo lineup. [Victim] also 

identified [Appellant] by name and street to the detective 
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who administered the photo lineup five days prior to viewing 

the photos. The detective administered the photo lineup...as 

an extra measure to ensure the Commonwealth had the 

best foundation for its investigation. The Commonwealth 

already had sufficient identification evidence from [Victim] 

to create an independent basis for an identification even 

without the photo lineup. The photos were in fact 

surplusage to identify the shooter by the time [Victim] was 

shown [Appellant]’s single photo. 

The issue before the [c]ourt is whether [Appellant]’s trial 

counsel was ineffective for failing to file a suppression 

motion regarding [Victim]’s identification of [Appellant]. 

This [c]ourt finds that such a motion would have been 

without merit given the independent basis for [Victim]’s 

identification of [Appellant] by reference to his mother and 

address. The precedent in this matter is clear that when 

there is an independent basis for an identification, with 

enough independence to overcome the suggestiveness of a

photo lineup by clear and convincing evidence given the 

totality of the circumstances, then the in-court identification 

of [Appellant] will be admissible. ...

* * *

The factors in this case weigh in favor of finding an 

independent basis for [Victim]’s identification of [Appellant]. 

... The identification’s independent origin negates the 

argument that [Victim]’s identification was the result of a 

suggestive procedure. The independent basis comes from 

[Victim]’s prior encounter with [Appellant] weeks before the 

shooting took place, from his having a clear view of 

[Appellant] right before he was shot, from [Victim]’s 

identification of [Appellant] to his mother and brother before 

the photo lineup, and his identification of [Appellant] to the 

detective five-days before the photo lineup. Taking the 

independent origins of [Victim]’s identification into account, 

this [c]ourt holds that it was reasonable for [Appellant]’s 

trial counsel to not file a suppression [motion] that would 

not have successfully blocked the admission of [Victim]’s 

identification.

(PCRA Court Opinion at 12-14; 16-17) (internal citations and footnotes 
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omitted). Again, we agree with the PCRA court’s analysis. Here, Victim 

provided an independent identification of Appellant prior to the allegedly 

suggestive photo identification. Victim identified Appellant by name and street

address, and even identified Appellant’s mother. Thus, any suppression 

motion counsel filed based upon the allegedly suggestive photo identification 

would have failed, and counsel cannot be deemed ineffective for failing to file

a meritless suppression motion. See Poplawski, supra. Accordingly, we 

affirm.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/15/2021