J-S48005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. RICKY ROUSE Appellant No. 682 WDA 2015

Appeal from the PCRA Order April 8, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004190-2009

BEFORE: BOWES, DUBOW AND MUSMANNO, JJ. MEMORANDUM BY BOWES, J: FILED SEPTEMBER 19, 2016 Ricky Rouse appeals pro se from the April 8, 2015 order denying his PCRA petition. We affirm. We previously set forth the relevant facts: On February 24, 2009, Antoine Cooper (“the victim”) was shot at approximately 4:30 in the afternoon in Northview He ights, a neighborhood in the North Side of the city of Pitts burgh. The victim suffered multiple gunshot wounds with the fa tal wound being a single shot to the head. The Commonwealth’ s theory of the case was that [A]ppellant fired the fatal bulle t in retaliation for an earlier shooting and that [A]ppellant was se en leaving the crime scene in a vehicle rented by [Appellant’s] co -defendant, Damone Porter. At the conclusion of trial, [A]ppellant was found g uilty of first degree murder, carrying a firearm without a license , and conspiracy. On December 21, 2010, [A]ppellant was sentenced to life in prison.J-S48005-16

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Commonwealth v. Rouse , 60 A.3d 559 (Pa.Super. 2012) at 1- 2 (unpublished memorandum, citations and footnotes om itted), appeal denied , 63 A.3d 776 (Pa. 2013). Appellant was identified b y a UPS driver, who saw him fleeing the scene of the crime with a firearm. We affirmed Appellant’s judgment of sentence and the Supreme Court denied f urther review. Id

. On January 28, 2014, Appellant filed a timely pro se PCRA petition raising five claims and requesting the appointment of counsel. The court appointed Ryan H. James, Esquire. Mr. James subseq uently filed a motion to withdraw and authored a Turner / Finley 1 no-merit letter. Before the court resolved counsel’s motion to withdraw, the co urt granted co-defendant Porter a hearing pursuant to his own PCRA petition. The court ordered Appellant’s PCRA counsel to review Porter’s petitio n to determine whether any issues raised by Porter were applicable in Appe llant’s matter. In a second letter, counsel determined those issues did not implicate Appellant’s case, and the court agreed. In the meantime, Appellant filed a letter outlinin g his response to counsel’s no-merit letter, and raised additional cl aims. The court issued an order on March 11, 2015, disposing of some of Appel lant’s claims and directing counsel to evaluate three additional issu es contained in the

____________________________________________ 1 See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988).J-S48005-16

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response. Counsel addressed those issues, and on A pril 8, 2015, the court issued an order adopting counsel’s analysis, dismis sing Appellant’s PCRA petition without a hearing, and granting counsel’s motion to withdraw. Appellant filed a timely pro se notice of appeal and complied with the court’s order to file a Rule 1925(b) concise statem ent of errors complained of on appeal. The court filed a Rule 1925(a) opini on, and this matter is now ready for our consideration. Appellant raised five issues for our review:
1. Did the trial court erred [sic] when it denied Appe llant’s PCRA petition where it was clear that trial counsel was ineffective for failing to investigate the crime scene to prope rly determine whether the Commonwealth’s key witness co uld have testified truthfully that he saw Appellant on an angle at a considerable distance away, thus, violating his S ixth Amendment Right to effective assistance pursuant to Wiggins v. Smith , 539 U.S. 510 (2003)?
2. Did the prosecutor abuse its authority, thus commit ting a miscarriage of justice, when it allowed testimony f rom the Commonwealth witness (Barbara Geraci) to testify fa lsely to a fact that the name of the hotel room (room in which alleged getaway vehicle keys were recovered) was in Appella nt’s name. Where evidence to the contrary was institute d, thus violating Appellant’s Sixth and Fourteenth Amendmen t right under the [guise] of prosecutor misconduct? 3. Was counsel (direct appeal) ineffective for failing to raise a proper “weight of the evidence” thus, causing this claim to be waived at the stage guaranteed pursuant to Pa.Const .Article I, Section 9?
4. Pursuant to Commonwealth v. Walker , 92 A.3d 766 (Pa. 2014) does Appellant have a guaranteed right to pre sent evidence of an expert witness by compulsory process of the Sixth Amendment and Pa.Const.Article I, Section 9 t o theJ-S48005-16

- 4 - issue whether there was an misidentification of App ellant via cross-racial and lapse in time between the crime an d the trial, thus, violating Appellant’s right to due process an d equal protection of the Fourteenth Amendment?
5. Pursuant to Martinez v. Ryan , 132 S.Ct. 1309 (2012) was PCRA counsel ineffective for failing to raise prope rly preserved claim of “newly discovered evidence” of an affidavi t of Eugene Mackey pursuant to Commonwealth v. Abu-Jamal , 833 A.2d 719 (Pa. 2003)? Appellant’s brief at 4 (unnecessary capitalization omitted). We review PCRA appeals “in the light most favorabl e to the prevailing party at the PCRA level.” Commonwealth v. Steckley , 128 A.3d 826, 831 (Pa.Super. 2015) (citation omitted). Our “review i s limited to the finding of the PCRA court and the evidence of record [and] we do not disturb a PCRA court’s ruling if it is supported by the evidence o f record and is free of legal error.” Id . As such, “we grant great deference to the factua l findings of the PCRA court and will not disturb those findings unle ss they have no support in the record.” Id . Nevertheless, “we afford no such deference to it s legal conclusions.” Id . Where the petitioner raises questions of law “ou r standard of review is de novo and our scope of review is plenary.” Id

. Appellant first contends that the trial court erre d in denying his PCRA petition since the evidence of record supports a fi nding that trial counsel was ineffective for failing to investigate the crime sc ene in preparation for trial. Appellant has raised this issue for the first time on appeal. It is axiomatic that “issues not raised in the lower court are waiv ed and cannot be raised forJ-S48005-16

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the first time on appeal.” Pa.R.A.P. 302(a); Commonwealth v. Fletcher , 986 A.2d 759, 778 (Pa. 2009) (finding waiver where appellant did not present claim in a PCRA petition). Therefore, this claim is waived. We consider Appellant’s second, third, and fifth c laims together, as they all raise claims of counsel ineffectiveness. Pennsylvania courts utilize a three-factor test in reviewing the effectiveness of counsel. In order to obtain relief, the petitioner must prove: (1) the underlying claim has arguable merit; (2) no rea sonable basis existed for counsel’s actions or failure to a ct; and (3) petitioner suffered prejudice as a result of counse l’s error such that there is a reasonable probability that the res ult of the proceeding would have been different absent such er ror. Commonwealth v. Perry , 128 A.3d 1285, 1289 (Pa.Super. 2015) (citation omitted). Failure to satisfy any prong of this tes t requires rejection of the claim. Id . Furthermore, “counsel is presumed to be effectiv e, and a PCRA petitioner bears the burden of pleading and proving each of the three factors by a preponderance of the evidence.” Id

. Appellant first argues that the Commonwealth commit ted prosecutorial misconduct by suborning perjury from its witness, B arbara Geraci. Claims of prosecutorial misconduct sound in ineffectiveness o f counsel for purposes of the PCRA. Commonwealth v. Tedford , 960 A.2d 1 (Pa. 2008) (holding where counsel fails to object to prosecutor miscond uct at trial, claim must be argued as ineffective assistance of counsel). Appe llant asserts that evidence adduced at trial proved that the prosecutor knew Ap pellant was notJ-S48005-16

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associated with a hotel room where Ms. Geraci found incriminating evidence, and yet permitted her to testify that Appellant was connected to it. Thus, Appellant’s claim assails trial counsel’s failure t o object to this alleged misconduct. At trial, the Commonwealth offered the testimony o f Ms. Geraci, a hotel housekeeper, who recovered keys to the getawa y vehicle in a room rented by Porter. When Ms. Geraci was first questi oned regarding the renter of the room, she replied “I believe it was rented t o Damone Porter and [Appellant].” N.T. Trial, 10/1/10, at 313. Trial counsel did not object to Ms. Geraci’s statement. The Commonwealth immediately t hereafter offered into evidence, without objection, a receipt for that roo m indicating that Appellant’s co-defendant, and not Appellant, had re nted the room. Id . at 314. Appellant maintains the prosecutor elicited M s. Geraci’s initial response to associate him with incriminating evidence, despi te possessing the receipt, which clearly indicated only Porter rented the room . The PCRA court determined this issue lacked merit. We agree. The PCRA court found the testimony of the housekee per was “real and genuine.” Order, 3/11/15, at unnumbered 2. It not es that Appellant offered no proof that the housekeeper, a neutral witness, f abricated her testimony. Id . She merely stated that it was her subjective bel ief that Appellant and Porter both rented the room. That the Commonwealth immediately offered a receipt implicating Porter as the renter of the r oom demonstrated that itJ-S48005-16

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quickly dispelled any falsity associated with Ms. G eraci’s statement that she thought Appellant was one of the renters. Without proof to establish the Commonwealth engaged in misconduct, trial counsel c annot be found ineffective for failing to object. Therefore, we f ind this claim is devoid of merit, and hence, it fails. Appellant next challenges direct appeal counsel’s failure to properly preserve a weight-of-the-evidence claim. On appeal , this Court found counsel had conflated a weight claim with a suffici ency claim, and had thereby waived the issue. Rouse , supra , at 15. Appellant maintains that the verdict was against the weight of the evidence, and thus, counsel was ineffective for failing to preserve his claim. Sin ce we find Appellant’s underlying challenge to the weight of the evidence to be without arguable merit, direct appeal counsel was not ineffective fo r failing to preserve the
issue. See Perry , supra . When we review a weight-of-the-evidence challenge, we do not actually examine the underlying question; instead, we examine the trial court’s exercise of discretion in resolving the cha llenge. Commonwealth v. Leatherby , 116 A.3d 73, 82 (Pa.Super. 2015). This type of r eview is necessitated by the fact that the trial judge heard and saw the evidence presented. Id . Moreover, “One of the least assailable reasons f or granting or denying a new trial is the lower court’s convict ion that the verdict was orJ-S48005-16

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was not against the weight of the evidence and that a new trial should be granted in the interest of justice.” Id

. A new trial is warranted in this context only when the verdict is “so contrary to the evidence that it shocks one’s sense of justice and the award of a new trial is imperative so that right may be g iven another opportunity to prevail.” Commonwealth v. Morales , 91 A.3d 80, 91 (Pa. 2014). It is essential to note, “The finder of fact . . . exclus ively weighs the evidence, assesses the credibility of witnesses, and may choo se to believe all, part, or none of the evidence.” Commonwealth v. Konias , 136 A.3d 1014, 1023 (Pa.Super. 2016) (citation omitted). The trial court denied Appellant’s post-sentence mo tion challenging the weight of the evidence. The PCRA court, who also p resided at trial, reviewed Appellant’s weight-of-the-evidence claim and determ ined the argument was without merit. The PCRA court noted that this Cour t found sufficient evidence to convict Appellant and that the testimon y identifying Appellant near the crime scene, and in possession of a firear m, immediately after shots were fired would not suggest the verdict shou ld be overturned. Upon review of the record, we discern no abuse of discre tion in the denial of Appellant’s weight claim. We concur with the PCRA court that the issue is meritless. Ample circumstantial evidence supported Appellant’s conviction, and he does not otherwise highlight evidence that w as purportedly weighed improperly. Thus, no relief is due.J-S48005-16

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Appellant next argues that PCRA counsel was ineffe ctive for failing to assert a claim arising from “newly discovered evide nce.” Appellant’s brief at 23. As this issue was raised in Appellant’s Pa.R.C rim.P. 907 response, and included in his Pa.R.A.P. 1925(b) statement, it is properly before us. 2 Cf. Commonwealth v. Pitts , 981 A.2d 875, 880 n.4 (Pa. 2009) (challenge to PCRA counsel’s ineffectiveness was not preserved on appeal since it was not raised during trial court proceedings in response t o Pa.R.C.P. 907 notice or no merit letter). We note, however, although Appellant characterized this claim as “newly discovered evidence,” he concedes he was awa re of the evidence at trial. Appellant’s brief at 24. Appellant claims PCRA counsel was ineffective for failing to contact Eugene Mackey to persuade hi m to testify, and to confirm that he was willing and able to provide an alibi defense. Specifically, Appellant contends that he asked PCRA counsel to us e a purported affidavit created by Eugene Caldwell to convince Mackey to of fer alibi testimony on Appellant’s behalf. According to Appellant, Mackey was unwilling to testify

____________________________________________ 2 Appellant relies on Martinez v. Ryan , 132 S.Ct. 1309 (2012), for the proposition that ineffective assistance of counsel during collateral review may establish cause for a prisoner’s procedural def ault of a claim of ineffective assistance at trial. However, as Martinez relates to jurisdictional prerequisites for ineffectiveness claims before a f ederal habeas proceeding, it is inapplicable here.J-S48005-16

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without assurance that Caldwell would corroborate h is account of Appellant’s whereabouts on the day in question. Counsel has a general duty to undertake reasonable investigations or make reasonable decisions that render particular in vestigations unnecessary. Commonwealth v. Mitchell , 105 A.3d 1257, 1276 (Pa. 2014) (citation omitted). “The duty to investigate, of course, may include a duty to interview certain potential witnesses; and a prejud icial failure to fulfill this duty, unless pursuant to a reasonable strategic dec ision, may lead to a finding of ineffective assistance.” Id . However, counsel’s “failure to interview a particular witness prior to trial does not constitute ineffective assistance of counsel unless there is some showing that such an interview would have been beneficial to the defense under the facts and circumstances of the case.” Id

. The PCRA court adopted PCRA counsel’s Turner / Finley analysis in rejecting this claim. Counsel represented that, du ring a series of communications with Appellant regarding Mackey, App ellant acknowledged Mackey’s reluctance to provide alibi testimony with out Caldwell’s corroboration. However, Appellant failed to produc e Caldwell’s affidavit, and PCRA counsel attested that the affidavit did not em erge in discovery. Consequently, PCRA counsel did not contact Mackey s ince “he appears to be an alibi witness who does not want to provide an al ibi,” confirming Appellant’s assessment in a prior communiqué, that “[Mackey] just doesn’tJ-S48005-16

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want to get involved with this situation.” Letter from PCRA Counsel to Appellant, 5/12/14, at 2. PCRA counsel concluded, and the PCRA court agreed, that Mackey’s participation would not benef it Appellant’s defense, and thus, the issue lacked merit. We agree. Although Appellant continues to maintain that Caldw ell generated an affidavit attesting to Appellant’s whereabouts duri ng the commission of the crime, the record contains no such affidavit. Furt hermore, Appellant informed PCRA counsel of Mackey’s unwillingness to testify, and has offered no argument that Mackey would be willing to testify even if an affidavit, or other statement from Caldwell, was produced. Commonwealth v. Pander , 100 A.3d 626, 639 (Pa.Super. 2014) ( en banc ) (citation omitted) (finding counsel will not be deemed ineffective for failing to investigate a witness or call a witness to testify unless the PCRA petitione r demonstrates, inter alia , that the witness was willing to testify for the def ense). Appellant simply has made no showing that contacting Mackey would have b een beneficial to the defense. Mitchell , supra . Thus, this claim also fails. As a corollary matter, Appellant appended an “unswo rn declaration,” which we will treat as a witness certification, to his PCRA petition regarding Mackey’s supposed testimony at the PCRA hearing. P ursuant to Pa.R.Crim.P. 902(A)(15), Appellant is required to attach a signe d certification as to each witness he intends to offer when requesting an evid entiary hearing. That rule reads, in pertinent part:J-S48005-16

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A petition for post-conviction collateral relief sh all bear the caption, number, and court term of the case or case s in which relief is requested and shall contain substantially the following information . . . (15) if applicable, any request f or an evidentiary hearing. The request for an evidentiary hearing sh all include a signed certification as to each intended witness, s tating the witness’s name, address, and date of birth, and the substance of the witness’s testimony. Any documents material to the witness’s testimony shall also be included in the p etition[.] Pa.R.Crim.P. 902(A)(15). Appellant’s attached cert ification reads: Feb. 2009 (I don’t remember the exact date, but I o nly fixed a flat for “Uey” once). Eugene “Uey” [Caldwell] call ed me (Eugene Mackey) and told me he was almost back on the North side he was coming from getting a new tire. He said his ca r was parked on a side street behind Dave’s Barbershop, an that I should meet him down there. I left Northview Heights at a bout 3:30 [p.m.] I remember [because] Northview Elementary ki ds were still walking home from school. Once I got to Uey’ s car, Uey, [Appellant] and a couple other young dudes were sit ting on some steps smoking weed and busting jokes. I remem ber clearly for a fact [Appellant] was sitting there th e whole time, from the time I got down there till the time I got finish an we all left. Once I got finish, we drove down Manchester to McDonald’s (Me, [Appellant], Uey and another young dude). Rig ht after that they took me up to Northview Heights. I’m not sure of the time but I do recall it was dark outside now Appellant’s witness certification is unsigned, and fails to include the witness’s date of birth or address as required by R ule 902(A)(15). Although it purports to set forth alibi testimony by Mackey, it merely established Appellant’s whereabouts on some day in in February 2009. Thus, Appellant has failed to demonstrate prejudice due to counsel’ s decision not to contact Mackey. “Prejudice is established if there is a r easonable probability that, but for counsel’s errors, the result of the proceed ing would have beenJ-S48005-16

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different.” Pander , supra at 631 (quoting Commonwealth v. Stewart , 84 A.3d 701, 706-07 (Pa.Super. 2013) ( en banc ). Therefore, PCRA counsel cannot be ineffective for failing to call Mackey as an alibi witness. Perry , supra . We now turn to Appellant’s fourth issue, wherein Ap pellant contends the PCRA court erred in not granting him a new tria l to offer expert testimony regarding the unreliability of eyewitness identification pursuant to Commonwealth v. Walker , 92 A.3d 766 (Pa. 2014). The PCRA court found this issue meritless since the Walker decision has not been held to apply retroactively. 3 We agree.
In Walker , our Supreme Court reviewed extensive scientific r esearch and observed the trend among federal and state cour ts, to overturn the per

se ban on expert testimony regarding eyewitness ident ification. Nonetheless, the Supreme Court concluded the admiss ibility of such testimony in criminal proceedings in Pennsylvania s hould be left to the discretion of the trial court. Walker , supra , at 792-793. The Court did not

____________________________________________ 3 Appellant originally raised this issue as an ineff ectiveness claim against direct appeal counsel in his response to PCRA couns el’s motion to withdraw. Hence, the PCRA court analyzed this issue under tha t rubric. Appellant altered this claim to its present formulation for t he purposes of his Rule 1925(b) statement and his brief. We refrain from f inding waiver here as we can liberally construe Appellant’s filed materials to encompass his current claim, and doing so does not otherwise affect our d isposition. See Commonwealth v. Blakeney , 108 A.3d 739, 766 (Pa. 2014) (“courts may liberally construe materials filed by a pro se litigant[.]”).J-S48005-16

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express whether Walker should apply retroactively. Rather, it indicated that “the admission of expert testimony regarding e yewitness identification
is no longer per se impermissible[.]” Id . at 793 (emphasis added). Neither the Supreme Court, nor any court of this Co mmonwealth, has found Walker to apply retroactively to cases on collateral revie w, and we decline to do so here. The Walker court did not base its decision on constitutional jurisprudence, and the rule does not implicate a right so fundamental to the fairness of the criminal proceed ing as to warrant retroactive effect. See Teague v. Lane , 489 U.S. 288 (1989) (plurality); Commonwealth v. Lesko , 15 A.3d 345 (Pa. 2011); Commonwealth v. Washington , 2016 WL 3909088 (Pa. 2016). Appellant’s trial began in September 2010, and the Pennsylvania Supreme Court denied his petition for allowance of appeal on February 13, 2013. Thus, Appellant’s judgment of sentence becam e final on Tuesday, May 14, 2013, when the ninety-day period to seek certiorari with the United States Supreme Court expired. As Walker was decided May 28, 2014, it is not applicable to Appellant’s criminal proceedings, and his position does not afford him relief. Order affirmed.J-S48005-16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/19/2016