J-S38004-17

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*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

TYREEK MAXWELL

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1716 EDA 2016

Appeal from the PCRA Order May 4, 2016

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0009181-2010

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 28, 2017

Appellant, Tyreek Maxwell, appeals from the order entered in the 

Philadelphia County Court of Common Pleas, which denied his first petition 

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm. 

In its opinion, the trial court fully and correctly sets forth the relevant 

facts and procedural history of this case. Therefore, we have no reason to 

restate them. 

Appellant raises the following issues for our review: 

DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION 

IN DENYING [APPELLANT’S] PCRA CLAIM RAISING OUT OF 

COURT PHOTO ARRAY IDENTIFICATION [THAT] WAS MADE 

UNDER UNDULY SUGGESTIVE CIRCUMSTANCES, WHERE 

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1 42 Pa.C.S.A. §§ 9541-9546. 
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THE EVIDENCE ESTABLISHED ONE EYE-WITNESS WAS 

INFLUENCED IN MAKING IDENTIFICATION BY 

DETECTIVES? 

DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION 

IN DENYING PCRA RELIEF WHERE THE IN[-]COURT 

IDENTIFICATION WAS BASED ON OUT[-]OF[-]COURT 

TAINTED PHOTO ARRAY IDENTIFICATION AND A RESULT 

OF CONFRONTATION AT [THE] PRELIMINARY HEARING 

AND NOT [THE] WITNESS[’] PERSONAL RECOLLECTION OF 

THE EVENTS SURROUNDING [THE] CRIME? 

DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION 

IN MAKING HIS RULING WHEN [THE] PCRA COURT 

DENIED [APPELLANT’S] CLAIM OF BEING DENIED DUE 

PROCESS AND [A] FAIR TRIAL IN VIOLATION OF THE 6TH

AND 14TH AMENDMENT[S] TO THE UNITED STATES 

CONSTITUTION? 

DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION 

IN DENYING [APPELLANT] THE RIGHT TO AMEND [THE] 

PCRA PETITION TO CURE PLEADING DEFECTS IN 

[APPELLANT’S] FIRST TIMELY PCRA PETITION? 

WAS DIRECT APPEAL COUNSEL INEFFECTIVE FOR FAILING 

TO RAISE: (A) TRIAL COURT ERROR WHEN [THE] TRIAL 

COURT IMPROPERLY INSTRUCTED [THE] JURY REGARDING 

A CHANGE OF APPEARANCE; [AND] (B) TRIAL COURT 

ERROR IN ALLOWING [THE] COMMONWEALTH TO 

INTRODUCE OTHER ACTS AND/OR PRIOR BAD ACTS 

EVIDENCE DURING TRIAL? 

DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION 

IN DENYING [APPELLANT’S] PCRA CLAIM THAT DIRECT 

APPEAL [COUNSEL] AND TRIAL COUNSEL WERE 

INEFFECTIVE FOR FAILING TO CHALLENGE AND/OR 

DISCOVER DURING DIRECT APPEAL AND TRIAL THE 

EXISTENCE AND IDENTITY TO BECOME A SUSPECT AND 

INCLUDED IN [THE] LINE-UP, THEREBY CAUSING AND/OR 

FACILITATING THE DEPRIVATION OF [APPELLANT’S] 6TH

AND 14TH AMENDMENT RIGHT TO CONFRONTATION? 

DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION 

IN DENYING [APPELLANT’S] PCRA CLAIM THAT TRIAL 
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COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE 

THE WEIGHT OF THE EVIDENCE? 

DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION 

IN DENYING [APPELLANT’S] PCRA CLAIM OF ACTUAL 

INNOCENCE? 

DID THE PCRA COURT ERR AND ABUSE [ITS] DISCRETION 

IN DENYING [APPELLANT’S] PCRA CLAIM THAT TRIAL 

COUNSEL WAS INEFFECTIVE FOR FAILING TO CALL 

AND/OR USE ALIBI WITNESSES AND DEFENSE DURING 

TRIAL? 

(Appellant’s Brief at 4). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Glenn B. 

Bronson, we conclude Appellant’s issues on appeal merit no relief. The PCRA 

court opinion comprehensively discusses and properly disposes of the 

questions presented. (See PCRA Court Opinion, filed August 16, 2016, at 5-

15) (finding: (1) Superior Court rejected on direct appeal Appellant’s claim 

that unduly suggestive photo array led to identification of Appellant as 

perpetrator; because Appellant previously litigated this claim, it is not 

cognizable on collateral review; (2) Appellant could have raised on direct 

appeal claim that in-court identification was based on unduly suggestive outof-court photo array and confrontation at preliminary hearing; Appellant 

failed to do so, so this claim is waived; (3) exhibits D2 and D3 were forms 

victims filled out at pre-trial lineup, which described perpetrators of robbery; 

Appellant made formal request for exhibits during PCRA proceeding; 

however, Appellant failed to demonstrate extraordinary circumstances 
J-S38004-17

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entitled him to discovery of exhibits; thus, PCRA court’s denial of Appellant’s 

request for exhibits did not deny his due process rights; (4-5) Appellant 

failed to raise on direct appeal claims that trial court erred when it issued 

jury instruction about change of appearance and allowed Commonwealth to 

introduce “other acts” evidence; thus, these particular claims are waived;2

(6) Detective Leahy created photo array based on tips police received in 

response to news coverage of robbery; Detective Leahy showed photo array 

to two victims, who both identified Appellant as one of robbers; Appellant 

claims trial counsel was ineffective for failure to learn source of tips, which 

led to violation of Appellant’s Confrontation Clause rights at trial; however,

tips led only to creation of photo array; as such, statements about tips at 

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2

In his PCRA petition, Appellant raised claims of trial court error contained 

in issue five without any reference to ineffectiveness of direct appeal 

counsel. The PCRA court properly determined Appellant waived these claims 

for failure to raise them on direct appeal. Appellant now raises the 

allegations of trial court error under the rubric of ineffective assistance of 

direct appeal counsel; however, Appellant’s failure to do so in his PCRA 

petition results in waiver for purposes of our review. See Commonwealth 

v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal denied, 612 Pa. 

698, 30 A.3d 487 (2011) (explaining issues not raised in PCRA petition 

cannot be considered on appeal). To the extent Appellant asserts the PCRA 

court should have warned him of the pleading defect related to the 

allegations of trial court error, Appellant fails to cite any relevant law to 

support his claim. See Commonwealth v. Owens, 750 A.2d 872, 877 

(Pa.Super. 2000) (explaining failure to cite case law or other legal authority 

in support of argument results in waiver of claim). Further, Appellant chose 

to proceed pro se despite appointment of counsel. Appellant cannot fault 

the PCRA court for any pleading defect, because the PCRA court has no duty 

to act as counsel for Appellant, who must accept the consequences of his 

decision to proceed pro se. 
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trial were used merely to explain Detective Leahy’s course of investigation, 

not to prove truth of matter asserted; thus, Confrontation Clause challenge 

would have been meritless; further, trial counsel’s failure to discover and 

challenge source of tip information did not prejudice Appellant because 

discovery of source would have only identified additional inculpatory 

evidence against Appellant; therefore, knowledge of source of tips would not 

have led to different outcome at trial; (7) Appellant did not raise in PCRA 

court claim that trial counsel was ineffective for failure to challenge weight of 

evidence; therefore, claim is waived on appeal; Appellant’s claim also fails to 

explain how verdict was against weight of evidence or how trial counsel was 

ineffective for failing to challenge weight of evidence; thus, Appellant’s claim 

is further waived for vagueness; (8) Appellant claims exhibits and trial 

testimony contradict identification evidence at trial and prove Appellant was 

not perpetrator of robbery; Appellant asserts direct appeal counsel should 

have raised this challenge to weight of evidence claim on direct appeal; 

initially, direct appeal counsel cannot be ineffective for failure to raise actual 

innocence claim because Appellant did not challenge weight of identification 

evidence in post-sentence motion; further, Appellant cannot demonstrate he 

was prejudiced by direct appeal counsel’s actions; two victims identified 

Appellant in photo array, and at trial, as one of individuals who had robbed 

them at gunpoint; while Appellant claims victims’ failure to mention tattoos 

or identify Appellant in lineup proves misidentification, jury was free to 
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accept victims’ testimony and reject Appellant’s arguments; moreover, fact 

that surveillance video was unable to delineate Appellant’s tattoos did not 

undermine convincing identification testimony at trial; because compelling 

evidence existed to support jury’s conclusion that Appellant committed 

crime, court would have denied weight of evidence challenge; thus, direct 

appeal counsel was not ineffective for failing to raise actual innocence claim 

on this basis; (9) evidence presented at PCRA hearing established that 

counsel had reasonable basis for not calling alibi witnesses at trial; at PCRA 

hearing, trial counsel testified she spoke with each potential alibi witness 

prior to trial; according to trial counsel, each potential alibi witness gave trial 

counsel conflicting answers to Appellant’s whereabouts on date of robbery; 

trial counsel said she did not think witnesses provided true alibi defense 

because they could not remember with specificity when Appellant left their 

presence; trial counsel explained she chose not to call witnesses at trial 

because their stories were not particularly strong or helpful; trial counsel 

also noted that witnesses’ stories conflicted with Appellant’s version of 

events on night of robbery; trial counsel was concerned presentation of 

weak alibi evidence would cause jury to question entire defense; PCRA court 

believed trial counsel’s testimony, finding counsel had reasonable basis for 

failure to present alibi evidence). Accordingly, we affirm on the basis of the 

PCRA court’s opinion. 

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/28/2017
I The section 6105 charge required the Commonwealth to prove defendant's prior juvenile adjudication, which 

disqualified him from owning a gun, as an.element of the offense. The Court severed that charge and submitted it to 

the jury after the jury returned its verdict of guilty on the robbery, conspiracy, and PIC charges. N.T.3/9/2011 at 

102; 3/10/2011 at 16-17. 

defendant on appeal. 

Defender Association of Philadelphia, and the Defender Association continued to represent 

Defendant was represented at trial and at sentencing by Bernice Melamud, Esquire, of the 

May 12, 2011, defendant filed a post-sentence motion, which the Court denied on July 26, 2011. 

an aggregate sentence of eight-and-one-half to twenty years incarceration in state prison. On 

possessing an instrument of crime ("PIC") (18 Pa.C.S. § 907(a)), and one count of possession of 

a firearm by a prohibited person (18 Pa.C.S § 6015(a.l)).1 On May 5, 2011, the Court imposed 

conspiracy to commit first-degree robbery (18 Pa.C.S. §§ 903, 3701(a)(l)(ii)), one count of 

was convicted of two counts of first-degree robbery (18 Pa.C.S. § 3701(a)(l)(ii)), one count of 

On March 10, 2011, following a jury trial before this Court, defendant Tyreek Maxwell 

I. PROCEDURALBACKGROUND 

BRONSON August 16, 2016 , J. 

TYREEK MAXWELL 1111111 lll lllllftl II 

OPINION 7486459991 

CP·51.CR-0009181-2010_Comm. v. Maxwell, Tyreek 

v. Op1mon 

COMMONWEALTH OF CP-51-CR-0009181-2010 

PENNSYLVANIA 

Appeals/Post 1Wal 

Office of Judicial Records 

FILED 

AUG 1' 6 2016 IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

CRIMINAL TRIAL DIVISION 

Circulated 08/02/2017 09:14 AM
2 

On August 3, 2012, the Superior Court affirmed defendant's judgment of sentence. 

Defendant then filed a pro se petition under the Post-Conviction Relief Act ("PCRA") on August 

31, 2012. Gary Server, Esquire was appointed to represent defendant on June 24, 2013. On 

August 4, 2014, defendant filed a'motion, pursuant to Commonwealth v. Grazier, 713 A.2d 81 

(Pa. 1998), requesting that he be permitted to proceed prose. The Court held a Grazier hearing 

on March 19, 2015, after which the Court relieved Mr. Server and permitted defendant to 

proceed prose. On September 15, 2015, defendant filed an Amended PCRA Petition 

("Amended Petition") raising multiple claims of trial and appellate counsel ineffectiveness and 

claims regarding the legality of defendant's sentence. On December 15, 2015, defendant also 

filed a document entitled Issues to be Asserted on Initial P.C.R.A./Right to Amend 

("Supplemental Petition"), in which defendant raised additional claims of counsel 

ineffectiveness, as well as multiple claims of trial court error. On May 4, 2016, the Court held an 

evidentiary hearing on a claim defendant raised concerning counsel's failure to call alibi 

witnesses. Following the evidentiary hearing, the Court entered an order dismissing all of 

defendant's claims. Defendant has now appealed this Court's dismissal of his PCRA petitions, 

claiming: 1) the photo array prepared in this matter was unduly suggestive; 2) defendant's right 

of confrontation was violated during trial; 3) trial counsel was ineffective for failing to present an 

alibi defense at trial; 4) defendant was denied due process when he was denied a copy of trial 

exhibits D2 and D3; 5) the trial court erred by permitting the Commonwealth to introduce other 

acts evidence at trial; 6) the Commonwealth was impermissibly allowed to argue concerning 

defendant's change in appearance at trial and the Court erred in instructing the jury regarding 

defendant's changed appearance; 7) the trial court erred in permitting witnesses to make an incourt identification of defendant; 8) appellate counsel was ineffective for failing to preserve or 
3 

2 Defendant filed an Amended Concise Statement of Errors Complained of on Appeal in which he claims that the 

Court erred in denying his claims that the Court erred in letting in other acts evidence and in giving the jury charge 

regarding his change in appearance, without giving him the right to cure pleading defects in these claims. As will be 

seen below, these claims were denied since they were previously litigated, and not due to pleading defects. 

3 Defendant's accomplice was not located or charged. 

As Mr. Paulino attempted to pull out his gun, defendant, who had entered the 

store behind his accomplice and was wearing a black hooded jacket and jeans, 

approached Mr. Paulino N.T. 3/8/2011 at 57-58, 11 I. Pointing his own gun at 

Mr. Paulino, defendant demanded that Mr. Paulino give up his gun, as the man in 

the striped shirt threw Mr. Lara on the ground, knocking him unconscious. N.T. 

3/8/2011 at 57-59, 65. At that point, defendant was standing approximately "two 

or three feet" from Mr. Paulino. N.T. 3/8/2011 at 59. Mr. Paulino handed 

defendant his gun, still in its holster. N.T. 3/8/2011 at 60. As defendant then put 

On September 2, 2009, Lauro Paulino, his employee Carlos Salguero, and two 

customers were in Mr. Paulina's corner grocery store at 140 East Wyoming 

Avenue in Philadelphia. N.T. 3/8/2011 at 54-55, 106-107. At approximately 10 

p.m., Mr. Paulino was behind the store's counter when a tall man wearing a 

striped shirt3 walked into the store, grabbed a bottle out of a refrigerator, and 

smashed it over the head of a customer, Antonio Lera. N.T. 3/8/2011 at 55-57, 

65, 109: After incapacitating Mr. Lera, the tall man grabbed him in a headlock 

and used him "as a hostage" as he pointed a gun at Mr. Paulino. N.T. 3/8/2011 at 

56. Mr. Paulino reached under the counter for his gun, but was unable to remove 

it from its holster. N.T. 3/8/2011 at 57. 

At trial, the Commonwealth presented the testimony of Lauro Paulino, Carlos 

Salguero, Philadelphia Police Officers Christopher Hyk, Kyle Morris, Brian 

Waters, and James McCullough, and Philadelphia Police Detectives Francis Graf, 

Shawn Leahy, and Bill Urban. Viewed in the light most favorable to the 

Commonwealth as the verdict winner, their testimony established the following. 

defendant's direct appeal as follows: 

The factual background of this case is set forth in this Court's 1925(a) Opinion in 

II. FACTUAL BACKGROUND 

("Statement of Errors") at ~1 1-10. 

weight of the evidence during trial.2 Concise Statement of Errors Complained of on Appeal 

sentences should have merged; and 10) trial counsel was ineffective for failing to challenge the 

minimum statute he was sentenced under has been ruled unconstitutional and defendant's 

raise an "actual innocence" claim; 9) defendant is serving an illegal sentence, as the mandatory 
4 

4 Officer Frysiek's first name was not given during testimony. 

5 Officer Sawicki's first name was not given during testimony. 

Mr. Paulina's store had twelve functioning security cameras, which recorded the 

events of the robbery. N.T. 3/8/2011 at 69, 73. The night of the robbery, the 

police and Mr. Paulino viewed the video, but had trouble downloading it. N.T. 

3/9/2011 at 40-41. The next day, on September 3, 2009, the security company 

that had installed the cameras came and made a copy of the security camera 

At the same time, Philadelphia Police Officers Christopher Hyk, Kyle Morris, and 

Sawicki" were doing a routine patrol of the 25th District. N.T. 3/8/2011 at 131. 

At approximately 11 :50 p.m., the officers observed defendant bending down 

between two parked vehicles. N.T. 3/8/2011 at 133, 151-152. The officers exited 

their squad car, at which point defendant ran. N.T. 3/8/2011 at 133-134. All 

three officers pursued defendant as he ran down North Marvin Street and through 

the front door of a house. N.T. 3/8/2011 at 133-136. As he entered the house, 

defendant discarded a handgun. N.T. 3/8/2011 at 152-153. Defendant Officers 

Morris and Sawicki caught defendant and arrested him, while Officer Hyk 

recovered the gun. N.T. 3/8/2011 at 136, 155-156. Defendant was arrested on the 

charge of possession of a firearm by a prohibited person, for the gun that he 

discarded during the chase. 

As the robbery took place, Philadelphia Police Officers Brian Waters and Frysiek" 

were patrolling the 25th District, which encompasses Wyoming Avenue. N.T. 

3/9/2011 at 14-16. Within one minute of Mr. Paulina's phone call to police, 

Officer Waters and Officer Frysiek arrived at the scene of the crime. N.T. 

3/9/2011 at 17. The officers acquired a description of the suspects from the 

witnesses. N.T. 3/9/2011 at 28-29. Mr. Paulino then went to the police station to 

give a statement. N.T. 3/8/2011 at 83-84. Mr. Salguero went to the police station 

and gave a statement the following day. N.T. 3/8/2011 at 120-121. 

Defendant's accomplice then stole approximately fifteen hundred dollars from the 

combination of Mr. Paulina's wallet and the cash register, along with Mr. 

Paulina's cell phone and firearm permit. N.T. 3/8/2011 at 63-64, 96. As his 

accomplice robbed Mr. Paulino, defendant robbed Mr. Salguero of his wallet, 

which contained approximately fifty dollars, and a gold chain that Mr. Salguero 

was wearing. N.T. 3/8/2011 at 112-113. He also robbed customer Satronino 

Garcia of a wallet containing five hundred dollars, a cell phone, and a gold chain. 

N.T. 3/9/2011 at 22-23, 31-32. After he robbed the victims, defendant's 

accomplice told everyone not to move, and he and defendant fled the store. N.T. 

3/8/2011 at 65-66. Mr. Paulino and another customer ran after defendant and his 

accomplice, but did not catch them. N.T. 3/8/2011 at 66-67. Mr. Paulino then 

called the police. N.T. 3/8/2011 at 68-69. 

his own gun in his pocket and attempted to get Mr. Paulino's gun out of its 

holster, Mr. Paulino looked straight at defendant's face for 20 seconds. N.T. 

3/8/2011 at 60. 
5 

Because this claim was previously litigated on defendant's direct appeal, it is not cognizable 

appeal and rejected by the Superior Court. See Superior Court Opinion, filed 8/3/12 at pp. 10-11. 

suggestive .... " Statement of Errors at 11. This claim was initially raised in defendant's direct 

array presented to the Commonwealth witnesses, Lauro Paulino and Carlos Salguero, was unduly 

Defendant first alleges that the Court erred in denying defendant's claim "that the photo 

A. Unduly Suggestive Photo Array 

720 A.2d 79, 93-94 (Pa. 1998)). 

Commonwealth v. White, 734 A.2d 374, 381 (Pa. 1999) (citing Commonwealth v. Abu-Jamal, 

credibility determinations are supported by the record, they are binding on the reviewing court." 

not disturb findings that are supported by the record." Id. Moreover, "[w]here a PCRA court's 

(citing Commonwealth v. Legg, 669 A.2d 389, 391 (Pa. Super. 1995)). The reviewing court "will 

otherwise free of legal error." Commonwealth v. Yager, 685 A.2d 1000, 1003 (Pa. Super. 1996) 

determining whether the court's findings are supported by the record and the court's order is 

An appellate court's review of a PCRA court's grant or denial of relief "is limited to 

III. DISCUSSION 

Trial Court Opinion, filed 10/19/11 atpp. 2-4. 

On December 31, 2009, detectives compiled a photo array and showed it to Mr. 

Paulino. N.T. 3/8/2011 at 85-86. Mr. Paulino identified defendant as one of the 

robbers. N.T. 3/8/2011 at 86. Detectives showed a photo array to Mr. Salguero, 

who also identified defendant as the man who robbed him. N.T. 3/8/2011 at 121- 

122. 

videotape for the police and a copy for Mr. Paulino. N.T. 3/8/2011 at 69-70. 

Police took still images from the videotape and circulated them in both television 

and print media in an attempt to identify the robbers. N.T. 3/9/2011 at 106. 

Based on information the police received as a result of the circulation of the 

images, police developed defendant as a suspect. N.T. 3/9/2011 at 107-108. 
6 

under the PCRA. 42 P.A.C.S. § 9543(a)(3) & 9544; see Commonwealth v. Johnson, --- A.3d---, 

*10 (Pa. 2016). 

B. Right to Confrontation 

Defendant next claims that the Court "erred in making his ruling by denying 

[defendant's] P.C.R.A. claim, that [defendant's] ... right to confrontation was violated during 

trial." Statement of Errors at ,r 2. Presumably, defendant is seeking to reassert his Amended 

Petition claim that trial counsel was ineffective for failing to "discover and challenge how 

[defendant] was developed as a suspect in this case in order to permit him rightful confrontation 

of his accuser .... " Amended Petition at ,r 9. This claim is without merit. 

Under Pennsylvania law, counsel is presumed effective and the burden to prove 

otherwise lies with the petitioner. Commonwealth v. Basemore, 744 A.2d 717, 728 (Pa. 2000), 

n.10 (citing Commonwealth v. Copenhefer, 719 A.2d 242, 250 (Pa. 1998)). To obtain collateral 

relief based on the ineffective assistance of counsel, a petitioner must show that counsel's 

representation fell below accepted standards of advocacy and that as a result thereof, the 

petitioner was prejudiced. Strickland v. Washington, 466 U.S. 668, 694 (1984). In 

Pennsylvania, the Strickland standard is interpreted as requiring proof that: ( 1) the claim 

underlying the ineffectiveness claim had arguable merit; (2) counsel's actions lacked any 

reasonable basis; and (3) the ineffectiveness of counsel caused the petitioner prejudice. 

Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009); Commonwealth v. Pierce, 527 A.2d 

973, 974-75 (Pa. 1987). To satisfy the third prong of the test, the petitioner must prove that, but 

for counsel's error, there is a reasonable probability that the outcome of the proceeding would 

have been different. Commonwealth v. Sneed, 899 A.2d 1067, 1084 (Pa. 2006) (citing 

Strickland, 466 U.S. at 694). 
7 

Here, defendant cannot demonstrate that the underlying claim has merit. At trial, 

Philadelphia Police Detective Shawn Leahy testified that he prepared a photo array, including 

defendant's photo, based on information that he had received after posting stills of the video 

surveillance footage recovered in this matter, which depicted defendant's face, in the news 

media. N.T. 3/9/11 at 106-108. Detective Leahy then testified that he showed this array to the 

two victims of the robbery, who both identified defendant as one of the individuals who robbed 

them. N.T. 3/9/11 at 109-114. 

"Under both the United States Constitution and the Pennsylvania Constitution, the right 

to confrontation specifically guarantees a person accused of a crime the right 'to be confronted 

with the witnesses against him.?' Commonwealth v. Williams, 84 A.3d 680, 684 (Pa. 2014). 

"The Confrontation Clause may be violated by the admission of harmful hearsay testimony as 

substantive evidence against the defendant. However, it is elemental that an out of court 

statement which is not offered for its truth, but to explain the witness' course of conduct is not 

hearsay." Commonwealth v. Carson, 913 A.2d 220, 258 (Pa. 2006) (internal citations and 

quotations omitted). 

Here, the challenged statements were used by Detective Leahy as the basis for creating a 

photo array. They were offered solely to explain Detective Leahy's course of conduct, and not 

for the truth of the matter asserted. For that reason, any objection to Leahy's testimony based on 

the Confrontation Clause would have been meritless. 

Neither can defendant demonstrate that he was prejudiced by trial counsel's failure to 

discover and somehow challenge the information that led Leahy to place defendant's photo in the 

array. Assuming, arguendo, that counsel had managed to identify the source of information 

linking defendant to the video, counsel would have only identified additional inculpatory 
8 

witnesses who could have testified as to defendant's identity as one of the robbers. That 

evidence would not have reasonably lead to a different outcome at trial. No relief is due. 

C. Failure to Present an Alibi Defense 

Defendant next claims that the Court erred in denying defendant's claim that trial counsel 

"was ineffective for failing to call and/or use [ defendant's] alibi witnesses or alibi defense during 

trial." Statement of Errors at 1 3. This claim is without merit. 

At a PCRA hearing, the defendant has the burden of establishing by a preponderance of 

the evidence that he is eligible for relief under the Act. 42. Pa.C.S. § 9543(a). Here, the 

evidence presented at the hearing clearly established that trial counsel had a reasonable basis for 

not calling defendant's alibi witnesses at trial. 

At the evidentiary hearing, defendant presented the testimony of trial counsel Bernice 

Melamud, Esquire, and purported alibi witnesses Maurice Ford, and Alyssa Ford.6 Ms. 

Melamud testified at the hearing that defendant informed her of three potential alibi witnesses: 

Alyssa Goodwin (now Alyssa Ford), Maurice Ford, and Denelia Santiago. N.T. 5/4/16 at 8-9. 

Ms. Melamud further testified that she reached out to these possible witnesses through her 

investigator prior to trial, and that these witnesses each provided conflicting answers concerning 

defendant's whereabouts on the day of the robbery. N.T. 5/4/16 at 10-16. Ms. Melamud also 

testified that she did not believe that the recollections of the alibi witnesses truly provided an 

alibi defense, as the witnesses could not remember with specificity what time defendant left their 

presence. N.T. 5/4/16 at 25-26. Ms. Melamud testified that she did not call these witnesses at 

trial as she did not believe that their stories were particularly strong or would be helpful, and 

because the witnesses conflicted with what defendant stated he had been doing that night. N.T. 

5/4/16 at 17-18, 29-30. Ms. Melamud testified that she was concerned that putting weak 

6 Alyssa Ford's maiden name was Alyssa Goodwin. N.T. 5/4/16 at 46. 
9 

witnesses before the jury would cause the jury to question, and then disregard, the rest of the 

defense. N.T. 5/4/16 at 18. Instead, Ms. Melamud pursued a misidentification defense, as 

defendant's tattoos did not appear to match the individual in the surveillance footage, and 

witnesses had previously failed to correctly identify defendant in a lineup. N.T. 5/4/16 at 21-24. 

The Court found Ms. Melamud's testimony to be credible. N.T. 5/4/16 at 74-77. The testimony 

of purported alibi witnesses Maurice and Alyssa Ford, did not, in any way, undermine the 

testimony of Ms. Melamud. N.T. 5/4/16 at 74-77. 

The record thus amply supports the Court's finding that Ms. Melamud had a reasonable 

basis for not calling defendant's alibi witnesses at trial. Given the conflict between witnesses' 

recollections, the failure of these witnesses to actually place defendant somewhere other than the 

scene of the crime at the actual time of the crime, and a viable alternative defense that did not 

require putting on weak alibi witnesses, the Court did not err in determining that trial counsel 

had a reasonable basis for not calling defendant's proposed alibi witnesses. Miller, 987 A.2d at 

648. Therefore, the Court properly found that Ms. Melamud did not deprive defendant of 

effective assistance of counsel. 

D. Denial of Due Process Concerning Exhibits D2 and D3 

Defendant next claims that he was "denied due process due to [defendant] being denied 

and/or refused a copy of exhibits (D2 and D3) which is exculpatory evidence." Statement of 

Errors at ,r 4. This claim is without merit. 

Exhibits D2 and D3 were forms filled out by victims Lauro Paulino and Carlos Salguero, 

respectively, at a pretrial lineup proceeding, and which included descriptions of some 

characteristics of the robbers. These exhibits were marked by defense counsel at trial and shown 

to Detective Bill Urban, who conducted the lineup proceeding. N.T. 3/9/11 at 129, 141-144. 
10 

These exhibits were not, however, moved into evidence. N.T. 3/9/11 at 157. Accordingly, the 

physical copies of the forms were not made part of the trial record. Defendant made a formal 

request to have copies of these two exhibits provided to him, arguing only that the exhibits were 

required and that defendant "will not be able to complete his amended petition as directed 

without the requested exhibits." Motion for Extension of Time, filed 8/28/15 at 12. 

Under Pa.R.Crim.P. 902(E)(l), a PCRA petitioner in a non-capital case is entitled to 

discovery in PCRA proceedings only upon leave of the Court after a showing of exceptional 

circumstances. Defendant did not set forth any extraordinary circumstances that would entitle 

defendant to discovery, particularly as the contents of these exhibits were revealed during 

testimony at the trial. As defendant did not establish that exceptional circumstances existed, his 

request for copies of these documents, which were not part of the Court file, was properly denied 

and in no way deprived him of due process. 

E. Admission of Other Acts Evidence 

Defendant next claims that the Court "erred by allowing the Commonwealth to introduce 

other acts evidence during trial." Statement of Errors at 15. This claim is waived as defendant 

could have, but did not raise this matter in his direct appeal. 42 Pa.C.S. § 9544(b) ("an issue is 

waived if the petitioner could have raised it but failed to do so before trial, at trial, [ or J on 

appeal"); see Commonwealth v. Lambert, 797 A.2d 232, 240 (Pa. 2001). 

F. Defendant's Change of Appearance 

Defendant next claims that the Court "erred by allowing the Commonwealth to argue 

and/or present a false and.or [sic] argument of change of appearance during trial and Lower 

Court improperly instructed the Jury regarding change of appearance." Statement of Errors at 1 
11 

H Failure to Present "Actual Innocence" Claim 

Defendant next claims that appellate counsel was "ineffective for failing to preserve 

and/or raise an 'Actual Innocence' claim on direct appeal, and/or denying [defendant's] 'Actual 

Innocence' claim on P.C.R.A." Statement of Errors at 18. This claim is without merit. 

Defendant bases this claim on the "patent impossibility of [ defendant] being the actor in 

light of the photographic exhibits Dl photo of doer #2 (attention to both the right and left hands), 

C41 Photo of [defendant's] mug shot (attention to his right hand), and C43 Photo of 

[defendant's] mug shot (attention to his left hand)." Supplemental Petition at 16. Defendant 

asserts that appellate counsel should have asserted that these exhibits, in conjunction with the 

trial testimony, prove that defendant was not the perpetrator, contradicting the other 

identification evidence presented at trial. Supplemental Petition at 116-11. Therefore, defendant 

appears to be claiming that the jury's conclusion that he was one of the robbers was against the 

weight of the identification evidence, and that appellate counsel should have raised this issue in 

defendant's direct appeal. 

6. This claim is waived as defendant could have, but did not raise this matter in his direct appeal. 

42 Pa.C.S. § 9544(b); Lambert, 797 A.2d at 240. 

G. In-Court Identification 

Defendant next claims that the court "erred by allowing the Commonwealth witnesses 

Lauro Paulino and Carlos Salguero to make an in court identification that followed an out of 

court suggestive identification and after both witnesses failed to identify [defendant] out of a line 

up on March 22, 2010." Statement of Errors at 17. This claim is waived as defendant could 

have, but did not raise this matter in his direct appeal. 42 Pa.C.S. § 9544(b); Lambert, 797 A.2d 

at 240. 
12 

Initially, appellate counsel could not have been ineffective for failing to raise a weight of 

the evidence claim on direct appeal, as defendant did not file a post-sentence motion challenging 

the weight of the identification evidence and thus waived the issue. Commonwealth v. Bryant, 

57 A.3d 191, 196 (Pa. Super. 2012) (challenges to weight of the evidence must be presented at 

trial in an oral or written motion prior to sentencing, or in a post-sentence motion, or the claim 

will be waived); Commonwealth v. Spotz, 18 A.3d 244, 278 (Pa. 2011) (no merit to claim that 

appellate counsel was ineffective for failing to raise a waived claim). 

In any event, defendant cannot demonstrate that he was prejudiced by appellate 

counsel's actions. It is well-established that a new trial may only be granted by the trial court 

where the verdict was so contrary to the weight of the evidence as to "shock one's sense of 

justice." Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004), appeal denied, 878 

A.2d 864 (Pa. 2005) (quoting Commonwealth v. Hunter, 554 A.2d 550, 555) (Pa. Super. 1989)). 

Moreover, credibility determinations are solely within the province of the fact-finder, and "an 

appellate court may not reweigh the evidence and substitute its judgment for that of the finder of 

fact." Commonwealth v. Taylor, 63 A.3d 327 (Pa. Super. 2013) (quoting Commonwealth v. 

Shaffer, 40 A.3d 1250, 1253 (Pa. Super. 2012)). In considering a claim that the trial court erred 

in refusing to find that a verdict was against the weight of the evidence, "appellate review is 

limited to whether the trial court palpably abused its discretion in ruling on the weight claim." 

Taylor, 63 A.3d at 327 (quoting Shaffer, 40 A.3d at 1253). 

Here, two victims identified defendant in a photo array. N.T. 3/8/11 at 85-86, 121-122; 

3/9/11 at 110-114. Both victims identified defendant at trial as one of the two individuals who 

robbed them at gunpoint. N.T. 3/8/11 at 58-59, 117-118. Victim Lauro Paulino testified at trial 

that he did not mention defendant's tattoos at the preliminary hearing in this case as it "didn't 
13 

come to [his] mind at that time." N.T. 3/8/11 at 102-103. Paulino clarified that he had never 

been asked about defendant's tattoos prior to trial, either by police or at the preliminary hearing. 

N.T. 3/8/11 at 104. While defendant argued that the failure to mention defendant's tattoos, 

together with failure to identify defendant at a pretrial lineup, proved misidentification, the jury 

was free to accept Paulino's testimony and reject defendant's arguments. Moreover, that the 

video surveillance was unable to clearly delineate defendant's tattoos did not undermine the 

compelling identification testimony. 

Therefore, there was compelling evidence to support the jury's conclusion that defendant 

committed the crimes of which he was convicted. As a result, the Court would have properly 

denied any post-sentence motion based on the weight of the evidence. Of course, appellate 

counsel could not have been ineffective for failing to raise a meritless weight claim, even if it 

had been preserved. Miller, 987 A.2d at 648. 

I. Illegal Sentence 

Defendant next asserts that the Court erred in denying defendant's claim that 

"[ defendant] is still serving an illegal sentence, since the Court has ruled, that a mandatory 

sentence is Unconstitutional...," and that defendant's "charges should have been merged." 

Statement of Errors at , 9. This claim is without merit. 

Defendant claimed that his sentence was unconstitutional because the statute under which 

he was sentenced has been ruled unconstitutional. Supplemental Petition at p. 6. Defendant was 

sentenced to a 5-year mandatory minimum sentence pursuant to 42 Pa.C.S. § 9712 (visibly 

possessing a firearm during a crime of violence), which was subsequently held unconstitutional 

by Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014), as the statute violated the 

United States Supreme Court holding in Alleyne v. United States, 133 S.Ct. 2151 (2013). 
14 

However, defendant's sentence became final thirty days after the Superior Court affirmed his 

sentence on August 3, 2012, prior to the holding in Alleyne, and the Pennsylvania Supreme Court 

has recently held that Alleyne does not apply retroactively to cases pending on collateral review. 

Commonwealth v. Washington, --- A.3d ---, *8 (Pa. 2016). 

Defendant's companion claim, that his sentence is illegal because his sentences for 

robbery and conspiracy should have merged, is frivolous. Pennsylvania courts have long held 

that the crime of conspiracy does not merge with the completed underlying offense. See 

Commonwealth v. Stocker, 622 A.2d 333, 347 (Pa. Super. 1993). 

J Failure to Challenge the Weight of the Evidence 

Finally, defendant alleges that trial counsel "was ineffective for failing to challenge the 

weight of the evidence during trial." Statement of Errors at ,r 10. While defendant implicitly 

raised a claim that appellate counsel was ineffective for failing to argue a weight of the evidence 

claim (see section IIl(H), above), defendant never argued that trial counsel was ineffective for 

failing to raise a weight claim at any time prior to this appeal. Because defendant's claim was 

never raised before the trial court, it has been waived for purposes of appeal. Commonwealth v. 

Rigg, 84 A.3d 1080, 1084-85 (Pa. Super. 2014). Similarly, defendant's claim is waived for 

vagueness, as the Court is left without direction as to how the verdict was allegedly against the 

weight of the evidence, or how trial counsel was ineffective for failing to challenge it. 

Commonwealth v. Freeman, 128 A.3d 1231, 1248-49 (Pa. Super. 2015) (a claim challenging the 

weight of the evidence will be waived where defendant fails to specify in his 1925(b) statement 

which verdict or verdicts were contrary to the weight of the evidence, or to offer specific reasons 

as to why those verdicts were against the weight of the evidence). To the extent that defendant is 
15 

~@~ 

GLENN B. BRONSON, J. 

BY THE COURT: 

should be affirmed. 

For the foregoing reasons, the Court's order dismissing defendant's PCRA petition 

IV. CONCLUSION 

the reasons set forth in section III(H), above. 

reasserting a weight claim based on the identification evidence, the claim fails on the merits for 
Dated: August 16, 2016 

Type of Service; ( ) Personal (X) First Class Mail ( ) Other, please specify: 

Joseph D. Seletyn, Esquire 

Prothonotary 

Office of the Prothonotary - Superior Court 

530 Walnut Street, Suite 315 

Philadelphia, PA 19106 

Additional Counsel/Party: 

Type of Service () Personal (X) First Class Mail () Other, please specify: 

Hugh J. Burns, Jr., Esquire 

Chief, Appeals Unit 

Philadelphia District Attorney's Office 

Three South Penn Square 

Philadelphia, PA 19107 

District Attorney(s): 

Type of Service: () Personal (X) First Class Mail () Other, please specify: 

Tyreek Maxwell 

JK-7424 

SCI Mahanoy 

301 Morea Rd. 

Frackville, PA 17932 

Defense Counsel/Party: 

I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and 

in the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P.114: 

PROOF OF SERVICE 

Commonwealth v. Tyreek Maxwell CP-51-CR-0009181-2010 

Type of Order: 1925(a) Opinion