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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

neighborhood in the North Side of the city of Pittsburgh. The 

victim suffered multiple gunshot wounds with the fatal wound 

being a single shot to the head. The Commonwealth’s theory of 

the case was that [A]ppellant fired the fatal bullet in retaliation 

for an earlier shooting and that [A]ppellant was seen leaving the 

crime scene in a vehicle rented by [Appellant’s] co-defendant, 

Damone Porter. 

At the conclusion of trial, [A]ppellant was found guilty 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 

- 2 - 

Commonwealth v. Rouse, 60 A.3d 559 (Pa.Super. 2012) at 1-2 

(unpublished memorandum, citations and footnotes omitted), appeal denied, 

63 A.3d 776 (Pa. 2013). Appellant was identified by 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 further 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 subsequently filed a motion 

to withdraw and authored a Turner/Finley1 no-merit letter. Before the 

court resolved counsel’s motion to withdraw, the court granted co-defendant 

Porter a hearing pursuant to his own PCRA petition. The court ordered 

Appellant’s PCRA counsel to review Porter’s petition to determine whether 

any issues raised by Porter were applicable in Appellant’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 outlining his response to 

counsel’s no-merit letter, and raised additional claims. The court issued an 

order on March 11, 2015, disposing of some of Appellant’s claims and 

directing counsel to evaluate three additional issues 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 

- 3 - 

response. Counsel addressed those issues, and on April 8, 2015, the court 

issued an order adopting counsel’s analysis, dismissing 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 statement of errors complained 

of on appeal. The court filed a Rule 1925(a) opinion, 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 Appellant’s PCRA 

petition where it was clear that trial counsel was ineffective 

for failing to investigate the crime scene to properly 

determine whether the Commonwealth’s key witness could 

have testified truthfully that he saw Appellant on an angle at 

a considerable distance away, thus, violating his Sixth 

Amendment Right to effective assistance pursuant to

Wiggins v. Smith, 539 U.S. 510 (2003)? 

2. Did the prosecutor abuse its authority, thus committing a 

miscarriage of justice, when it allowed testimony from the 

Commonwealth witness (Barbara Geraci) to testify falsely to a 

fact that the name of the hotel room (room in which alleged 

getaway vehicle keys were recovered) was in Appellant’s 

name. Where evidence to the contrary was instituted, thus 

violating Appellant’s Sixth and Fourteenth Amendment 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 present 

evidence of an expert witness by compulsory process of the 

Sixth Amendment and Pa.Const.Article I, Section 9 to the 
J-S48005-16 

- 4 - 

issue whether there was an misidentification of Appellant via 

cross-racial and lapse in time between the crime and the trial, 

thus, violating Appellant’s right to due process and 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 properly preserved 

claim of “newly discovered evidence” of an affidavit 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 favorable to the prevailing 

party at the PCRA level.” Commonwealth v. Steckley, 128 A.3d 826, 831 

(Pa.Super. 2015) (citation omitted). Our “review is 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 of record and is free of legal 

error.” Id. As such, “we grant great deference to the factual findings of the 

PCRA court and will not disturb those findings unless they have no support in 

the record.” Id. Nevertheless, “we afford no such deference to its legal 

conclusions.” Id. Where the petitioner raises questions of law “our 

standard of review is de novo and our scope of review is plenary.” Id. 

 Appellant first contends that the trial court erred in denying his PCRA 

petition since the evidence of record supports a finding that trial counsel was 

ineffective for failing to investigate the crime scene 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 waived and cannot be raised for 
J-S48005-16 

- 5 - 

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 claims 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 reasonable 

basis existed for counsel’s actions or failure to act; and (3) 

petitioner suffered prejudice as a result of counsel’s error such 

that there is a reasonable probability that the result of the 

proceeding would have been different absent such error. 

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa.Super. 2015) (citation 

omitted). Failure to satisfy any prong of this test requires rejection of the 

claim. Id. Furthermore, “counsel is presumed to be effective, 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 committed prosecutorial 

misconduct by suborning perjury from its witness, Barbara Geraci. Claims of 

prosecutorial misconduct sound in ineffectiveness of counsel for purposes of 

the PCRA. Commonwealth v. Tedford, 960 A.2d 1 (Pa. 2008) (holding 

where counsel fails to object to prosecutor misconduct at trial, claim must be 

argued as ineffective assistance of counsel). Appellant asserts that evidence 

adduced at trial proved that the prosecutor knew Appellant was not 
J-S48005-16 

- 6 - 

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 to object to this alleged 

misconduct. 

 At trial, the Commonwealth offered the testimony of Ms. Geraci, a 

hotel housekeeper, who recovered keys to the getaway vehicle in a room 

rented by Porter. When Ms. Geraci was first questioned regarding the renter 

of the room, she replied “I believe it was rented to 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 thereafter offered into 

evidence, without objection, a receipt for that room indicating that 

Appellant’s co-defendant, and not Appellant, had rented the room. Id. at 

314. Appellant maintains the prosecutor elicited Ms. Geraci’s initial response 

to associate him with incriminating evidence, despite 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 housekeeper was “real and 

genuine.” Order, 3/11/15, at unnumbered 2. It notes that Appellant offered 

no proof that the housekeeper, a neutral witness, fabricated her testimony. 

Id. She merely stated that it was her subjective belief that Appellant and 

Porter both rented the room. That the Commonwealth immediately offered 

a receipt implicating Porter as the renter of the room demonstrated that it 
J-S48005-16 

- 7 - 

quickly dispelled any falsity associated with Ms. Geraci’s statement that she 

thought Appellant was one of the renters. Without proof to establish the 

Commonwealth engaged in misconduct, trial counsel cannot be found 

ineffective for failing to object. Therefore, we find 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 sufficiency 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. Since we find Appellant’s 

underlying challenge to the weight of the evidence to be without arguable 

merit, direct appeal counsel was not ineffective for 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 challenge. Commonwealth v. 

Leatherby, 116 A.3d 73, 82 (Pa.Super. 2015). This type of review is 

necessitated by the fact that the trial judge heard and saw the evidence 

presented. Id. Moreover, “One of the least assailable reasons for granting 

or denying a new trial is the lower court’s conviction that the verdict was or 
J-S48005-16 

- 8 - 

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 given another opportunity to 

prevail.” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014). It is 

essential to note, “The finder of fact . . . exclusively weighs the evidence, 

assesses the credibility of witnesses, and may choose 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 motion challenging the 

weight of the evidence. The PCRA court, who also presided at trial, reviewed 

Appellant’s weight-of-the-evidence claim and determined the argument was 

without merit. The PCRA court noted that this Court found sufficient 

evidence to convict Appellant and that the testimony identifying Appellant 

near the crime scene, and in possession of a firearm, immediately after 

shots were fired would not suggest the verdict should be overturned. Upon 

review of the record, we discern no abuse of discretion 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 was purportedly weighed 

improperly. Thus, no relief is due. 
J-S48005-16 

- 9 - 

 Appellant next argues that PCRA counsel was ineffective for failing to 

assert a claim arising from “newly discovered evidence.” Appellant’s brief at 

23. As this issue was raised in Appellant’s Pa.R.Crim.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 to 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 aware of the evidence at 

trial. Appellant’s brief at 24. Appellant claims PCRA counsel was ineffective 

for failing to contact Eugene Mackey to persuade him 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 use a purported affidavit 

created by Eugene Caldwell to convince Mackey to offer 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 default of a claim of 

ineffective assistance at trial. However, as Martinez relates to jurisdictional 

prerequisites for ineffectiveness claims before a federal habeas proceeding, 

it is inapplicable here. 
J-S48005-16 

- 10 - 

without assurance that Caldwell would corroborate his 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 investigations 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 prejudicial failure to fulfill this 

duty, unless pursuant to a reasonable strategic decision, 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, during a series of 

communications with Appellant regarding Mackey, Appellant acknowledged 

Mackey’s reluctance to provide alibi testimony without Caldwell’s 

corroboration. However, Appellant failed to produce Caldwell’s affidavit, and 

PCRA counsel attested that the affidavit did not emerge in discovery. 

Consequently, PCRA counsel did not contact Mackey since “he appears to be 

an alibi witness who does not want to provide an alibi,” confirming 

Appellant’s assessment in a prior communiqué, that “[Mackey] just doesn’t 
J-S48005-16 

- 11 - 

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 benefit Appellant’s defense, 

and thus, the issue lacked merit. We agree. 

Although Appellant continues to maintain that Caldwell generated an 

affidavit attesting to Appellant’s whereabouts during the commission of the 

crime, the record contains no such affidavit. Furthermore, 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 petitioner demonstrates, inter alia, 

that the witness was willing to testify for the defense). Appellant simply has 

made no showing that contacting Mackey would have been beneficial to the 

defense. Mitchell, supra. Thus, this claim also fails. 

As a corollary matter, Appellant appended an “unsworn declaration,” 

which we will treat as a witness certification, to his PCRA petition regarding 

Mackey’s supposed testimony at the PCRA hearing. Pursuant to Pa.R.Crim.P. 

902(A)(15), Appellant is required to attach a signed certification as to each 

witness he intends to offer when requesting an evidentiary hearing. That 

rule reads, in pertinent part: 
J-S48005-16 

- 12 - 

A petition for post-conviction collateral relief shall bear the 

caption, number, and court term of the case or cases in which 

relief is requested and shall contain substantially the following 

information . . . (15) if applicable, any request for an evidentiary 

hearing. The request for an evidentiary hearing shall include a 

signed certification as to each intended witness, stating 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 petition[.] 

Pa.R.Crim.P. 902(A)(15). Appellant’s attached certification reads: 

Feb. 2009 (I don’t remember the exact date, but I only fixed a 

flat for “Uey” once). Eugene “Uey” [Caldwell] called me (Eugene 

Mackey) and told me he was almost back on the Northside he 

was coming from getting a new tire. He said his car was parked 

on a side street behind Dave’s Barbershop, an that I should 

meet him down there. I left Northview Heights at about 3:30 

[p.m.] I remember [because] Northview Elementary kids were 

still walking home from school. Once I got to Uey’s car, Uey, 

[Appellant] and a couple other young dudes were sitting on 

some steps smoking weed and busting jokes. I remember 

clearly for a fact [Appellant] was sitting there the 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). Right 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 Rule 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 reasonable probability that, 

but for counsel’s errors, the result of the proceeding would have been 
J-S48005-16 

- 13 - 

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 Appellant contends 

the PCRA court erred in not granting him a new trial 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 research 

and observed the trend among federal and state courts, to overturn the per 

se ban on expert testimony regarding eyewitness identification. 

Nonetheless, the Supreme Court concluded the admissibility of such 

testimony in criminal proceedings in Pennsylvania should 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 ineffectiveness claim against 

direct appeal counsel in his response to PCRA counsel’s motion to withdraw. 

Hence, the PCRA court analyzed this issue under that rubric. Appellant 

altered this claim to its present formulation for the purposes of his Rule 

1925(b) statement and his brief. We refrain from finding waiver here as we 

can liberally construe Appellant’s filed materials to encompass his current 

claim, and doing so does not otherwise affect our disposition. 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 

- 14 - 

express whether Walker should apply retroactively. Rather, it indicated 

that “the admission of expert testimony regarding eyewitness identification 

is no longer per se impermissible[.]” Id. at 793 (emphasis added). 

Neither the Supreme Court, nor any court of this Commonwealth, has 

found Walker to apply retroactively to cases on collateral review, 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 proceeding 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 became 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 

- 15 - 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/19/2016