J-S50011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BRANDON RUIZ

Appellant No. 1654 MDA 2015

Appeal from the PCRA Order September 3, 2015

in the Court of Common Pleas of Dauphin County Criminal Division

at No(s): CP-22-CR-0000285-2012

BEFORE: MUNDY, STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 08, 2016

Appellant, Brandon Ruiz, appeals from the order denying his first Post 

Conviction Relief Act1(“PCRA”) petition. Appellant contends trial counsel 

was ineffective for not seeking a mistrial or conducting a colloquy of the 

remaining jurors after a juror was dismissed because she was allegedly 

aware of the area in question and some of the witnesses. Appellant also 

asserts trial counsel was ineffective for not calling an expert to testify about 

eyewitness identification. We affirm.

We adopt the facts and procedural history set forth by a prior panel of 

this Court:

Ms. [Tiffany] Daniels’s testimony is summarized as 

follows: Ms. Daniels and the Victim were engaged at 

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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the time of the shooting. The Victim aspired to 

become a rapper, posted videos of himself rapping 

on YouTube, and performed at clubs and events. 

The Victim had a reputation as being involved in the 

hip-hop scene and he maintained a public image as 

being affluent.

On December 3, 2011, Ms. Daniels and the Victim 

went to the Derry Street Café (“Café”), left, went to 

another bar, and then returned to the Café at 

approximately 12:15 a.m. on December 4, 2011. 

Ms. Daniels was intoxicated by the end of the night. 

Although Ms. Daniels was familiar with Appellant and 

[Clarence Bender (“Co-Defendant”)], she did not see 

either individual or [Appellant’s friend,] Mr. [Tyrell] 

Weaver at the Café. Ms. Daniels and the Victim left 

the Café at closing time, which was approximately 

1:30 a.m. In the parking lot, the Victim tried to 

maneuver his and Ms. Daniels’s car out of its spot, 

but it was blocked by another vehicle. The Victim 

exited his vehicle and asked a nearby individual if he 

knew who owned the vehicle, but the individual did 

not respond. The Victim turned and lifted his right 

leg, at which point [Co-Defendant] grabbed the 

Victim from behind and demanded that he “give that 

shit up.” [Co-Defendant] grabbed the Victim by the 

neck with his left arm and, with his right hand, held 

a chrome semiautomatic gun against the right side 

of the Victim’s neck. When Ms. Daniels heard [CoDefendant] threaten the Victim, she bent down to 

look out of the open driver’s side doorway.

The Victim reached for his gun as he was attacked. 

As [Co-Defendant] and the Victim tussled, Appellant, 

who was unarmed, patted down the Victim. Ms. 

Daniels heard a gunshot, exited the vehicle, and 

found the Victim lying face-up in a pool of blood. 

One of the chains the Victim had that night was 

missing after the shooting. Ms. Daniels asserted in 

her testimony that [Co-Defendant] shot the Victim.

Mr. [John] Sanks[, head of security at the Café,] 

testified that the Victim and Ms. Daniels were 

frequent patrons of the Café. Mr. Sanks testified 
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that he was familiar with Appellant and [CoDefendant], and that the two men arrived around 

midnight on December 4, 2011. According to Mr. 

Sanks’s testimony, he patted down both Appellant 

and [Co-Defendant], but found no contraband. Mr. 

Sanks testified that he did not witness Appellant or 

[Co-Defendant] interacting with Ms. Daniels or the 

Victim that night.

Mr. Sanks testified that Ms. Daniels and the Victim 

left the Café, that [Co-Defendant], Mr. [Christopher] 

Diggs, and Mr. Weaver left the bar a few minutes 

later, and that Appellant walked out afterwards. Mr. 

Sanks testified that, upon hearing a gunshot outside, 

he looked across the street and saw [Co-Defendant], 

Appellant, the Victim and Ms. Daniels in the area 

where the shot came from; Mr. Sanks then watched 

[Co-Defendant] and Appellant cross Derry Street to 

return to the SUV. According to Mr. Sanks’s 

testimony, [Co-Defendant] ran away from the scene 

first. Mr. Sanks testified that [Co-Defendant] and 

Appellant got into the SUV and, after a moment, the 

SUV drove westward down Derry Street.

* * *

According to [Harrisburg Police Department]

Detective [Christopher] Krokos’s testimony, following 

an interview on December 4, 2011, Appellant 

provided him with a statement that essentially 

claimed that Appellant and [Co-Defendant] 

approached the Victim to assist him in maneuvering 

his vehicle, but [Co-Defendant] shot the Victim and 

took two of the Victim’s chains. Detective Krokos 

testified that, following an interview on January 3, 

2012, [Co-Defendant] provided a statement that 

asserted that Appellant was fighting with the Victim 

in the parking lot, [Co-Defendant] approached the 

two in order to stop the fight, but Appellant shot the 

Victim. Detective Krokos testified that the 

surveillance video from the Café established Mr. 

Diggs, Mr. Weaver, and [Co-Defendant] arrived at 

the Café together, and that Appellant met them at 

the bar. Detective Krokos testified that the 
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surveillance video from the Café established that 

[Co-Defendant] walked up directly behind the Victim.

(Trial Court Opinion, filed February 15, 2013, at 3-5, 14-

15) (internal footnotes omitted).

On February 22, 2012, the Commonwealth filed a 

criminal information charging Appellant with murder, 

robbery, and conspiracy. . . . 

Following trial, a jury found Appellant guilty of second 

degree murder and robbery. The jury found Appellant not 

guilty of conspiracy. On November 5, 2012, the court 

sentenced Appellant to life imprisonment for the murder 

conviction. The court imposed a concurrent term of ten 

(10) to twenty (20) years’ imprisonment for the robbery 

conviction. 

Commonwealth v. Ruiz, 2230 MDA 2012, at 1-3 (Pa. Super. Oct. 9, 2013) 

(footnote omitted). Appellant timely appealed; he challenged the weight of 

the evidence and whether the court erred by not severing the trial. This 

Court affirmed on October 9, 2013, but vacated the judgment of sentence 

for robbery. Appellant did not file a petition for allowance of appeal with our 

Supreme Court.

Appellant filed a timely, counseled PCRA petition on Monday, 

November 10, 2014. See 1 Pa.C.S. § 1908 (stating last day of time-period 

cannot fall on weekend or legal holiday). Following an evidentiary hearing, 

at which the district attorney and Appellant’s trial counsel testified, the court 

denied Appellant’s petition on October 3, 2015. Appellant timely appealed 

and timely filed a court-ordered Pa.R.A.P. 1925(b) statement. 

Appellant raises the following issues:
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Whether Appellant was deprived of his constitutional right 

to effective assistance of counsel when his trial attorney 

failed to request a mistrial, or the alternative, request to 

have the remaining jurors colloquyed to ensure they were 

not tainted by the proceedings and could be fair and 

impartial after juror number 8 disclosed she was aware of 

the witnesses and areas discussed during the trial?

Whether Appellant was deprived of his constitutional right 

to effective assistance of counsel when his trial attorney 

failed to request a Frye hearing to present expert witness 

identification testimony on the only eyewitness to identify 

the Appellant?

Appellant’s Brief at 5 (footnote omitted).

We summarize Appellant’s arguments for both of his issues. Appellant 

contends he was prejudiced because trial counsel failed to request a mistrial 

after a juror was dismissed. He alternatively claims counsel was ineffective 

by failing to have the remaining jurors questioned to ascertain their fairness 

and impartiality after a juror was removed. Appellant also claims that in a 

case issued subsequent to his trial, Commonwealth v. Walker, 92 A.3d 

766 (Pa. 2014), our Supreme Court held the trial court had the discretion to 

permit expert testimony on eyewitness identification. He concedes that 

although counsel cannot be found ineffective for failing to anticipate a 

change in the law, the Walker holding is sufficiently significant that he is 

entitled to a new trial. We decline to grant Appellant relief.

“On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are
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supported by the record and without legal error.” Commonwealth v. AbuJamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted).

[C]ounsel is presumed to have provided effective

representation unless the PCRA petitioner pleads and

proves that: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable basis for his or her conduct;

and (3) [the petitioner] was prejudiced by counsel’s action

or omission. To demonstrate prejudice, [the petitioner] 

must prove that a reasonable probability of acquittal

existed but for the action or omission of trial counsel. A

claim of ineffective assistance of counsel will fail if the

petitioner does not meet any of the three prongs. Further,

a PCRA petitioner must exhibit a concerted effort to

develop his ineffectiveness claim and may not rely on

boilerplate allegations of ineffectiveness.

Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008)

(punctuation and citations omitted). 

After careful review of the parties’ briefs, the record, and the wellreasoned decision by the Honorable Bernard Coates, Jr., we affirm on the 

basis of the PCRA court’s decision. See PCRA Ct. Op., 9/3/15, at 4-7 

(holding (1) juror testified she did not discuss her knowledge with the jury; 

(2) trial counsel opined insufficient basis for mistrial and did not believe juror 

lied; and (3) trial counsel had no reason to anticipate change in law). 

Furthermore, we note the overwhelming evidence of guilt including 

eyewitness testimony from, inter alia, the victim’s fiancée, who was present 

at the shooting, and surveillance video. See Ruiz, 2230 MDA 2012, at 1-3. 

Accordingly, having discerned no error, we affirm. See Abu-Jamal, 941 

A.2d at 1267.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/2016