J-S39035-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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RAHEIM ALPHONSO WILLIAMS,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1960 MDA 2015

Appeal from the PCRA Order November 2, 2015

in the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0005490-2011

BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 26, 2016

Raheim Alphonso Williams (Appellant) appeals from the November 2, 

2015 order which dismissed his petition filed pursuant to the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Also before us is a petition to 

withdraw filed by Appellant’s counsel and a no-merit brief pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We 

grant counsel’s petition and affirm.

This Court offered the following history of the case in Appellant’s direct 

appeal.

On the night of July 17, 2011, Tyler Knaub and Todd Lippy 

accompanied their friend Mikey to his house at 729 Jessop Place, 

York City. They opened the back door, walked through the 

kitchen and went into the living room, where they joined two 

other residents of the house, Jay and Cash. While the five men 
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were in the living room, [Appellant] and an accomplice, both of 

whom were armed, entered the house through the back door. 

They walked into the living room, and [Appellant] asked if 

anyone knew where he could find a girl whom he thought lived in 

the house. When no one could provide the information, 

[Appellant] and his accomplice, who were both pointing guns at 

the victims, ordered them to take off their shoes and put the 

contents of their pockets on the coffee table. They then ordered 

the men to remove their pants and stand by the front door with 

their backs to them.

The morning after the robbery, Knaub and Lippy reported 

the incident to police.

On June 5, 2012, at the conclusion of a two-day trial, a 

jury convicted [Appellant] of two counts of robbery and two 

counts of simple assault. On August 1, 2012, the court imposed 

an aggregate sentence of 151⁄2 to 40 years for the robbery 

convictions, with no additional sentence for simple assault. The 

court also ordered [Appellant] to pay restitution.

Commonwealth v. Williams, 100 A.3d 322 (unpublished memorandum at 

1-2). This Court affirmed Appellant’s judgment of sentence, id., and our 

Supreme Court denied his petition for allowance of appeal on October 7, 

2014. Commonwealth v. Williams, 101 A.3d 786 (Pa. 2014). 

On September 4, 2015, Appellant timely filed pro se a PCRA petition. 

Counsel was appointed, and a hearing was held. Thereafter, the PCRA court 

denied the petition, and Appellant timely filed the instant appeal. Both 

Appellant and the PCRA court complied with Pa.R.A.P. 1925. 

In this Court, Appellant’s counsel filed a petition to withdraw and a 

Turner/Finley brief raising the following issues that Appellant wants this 

Court to review:
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I. Whether the [PCRA] court erred in denying Appellant’s 

PCRA petition when [trial] counsel was ineffective for 

failing to file a pretrial motion to suppress a photo lineup 

which was later introduced as evidence at trial?

II. Whether the PCRA court erred in denying Appellant’s PCRA 

petition when appellate counsel was ineffective for failing 

to appeal the court’s denial of the Batson[1]challenge 

made during voir dire?

Turner/Finley Brief at 4 (unnecessary capitalization omitted).

Before we may address the potential merit of Appellant’s claims, we 

must determine if counsel has complied with the technical requirements of 

Turner and Finley. 

... Turner/Finley counsel must review the case zealously. 

Turner/Finley counsel must then submit a “no-merit” letter to 

the trial court, or brief on appeal to this Court, detailing the 

nature and extent of counsel’s diligent review of the case, listing 

the issues which the petitioner wants to have reviewed, 

explaining why and how those issues lack merit, and requesting 

permission to withdraw. 

Counsel must also send to the petitioner: (1) a copy of 

the “no-merit” letter/brief; (2) a copy of counsel’s petition to 

withdraw; and (3) a statement advising petitioner of the right to 

proceed pro se or by new counsel. 

If counsel fails to satisfy the foregoing technical 

prerequisites of Turner/Finley, the court will not reach the 

merits of the underlying claims but, rather, will merely deny 

counsel’s request to withdraw. Upon doing so, the court will 

then take appropriate steps, such as directing counsel to file a 

proper Turner/Finley request or an advocate’s brief. 

However, where counsel submits a petition and no-merit 

letter that do satisfy the technical demands of Turner/Finley, 

the court—trial court or this Court—must then conduct its own 

 

1 Batson v. Kentucky, 476 U.S. 79 (1986).
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review of the merits of the case. If the court agrees with 

counsel that the claims are without merit, the court will permit 

counsel to withdraw and deny relief. By contrast, if the claims 

appear to have merit, the court will deny counsel’s request and 

grant relief, or at least instruct counsel to file an advocate’s 

brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) 

(citations omitted).

We are satisfied that counsel has complied with the technical 

requirements of Turner and Finley. Therefore, we will consider the 

substantive issues contained in counsel’s brief. 

“Our standard of review of a trial court order granting or denying 

relief under the PCRA calls upon us to determine ‘whether the determination 

of the PCRA court is supported by the evidence of record and is free of legal 

error.’” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) 

(quoting Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 

2011)). 

In his PCRA petition, Appellant raised two claims of ineffective 

assistance of counsel. “It is well-established that counsel is presumed 

effective, and the defendant bears the burden of proving ineffectiveness.” 

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). To overcome this 

presumption, Appellant must show each of the following: “(1) the 

underlying substantive claim has arguable merit; (2) counsel whose 

effectiveness is being challenged did not have a reasonable basis for his or 
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her actions or failure to act; and (3) the petitioner suffered prejudice as a 

result of counsel’s deficient performance.” Id. Appellant’s claim will be 

denied if he fails to meet any one of these three prongs. Id. 

Appellant’s first issue is whether trial counsel was ineffective in failing 

to file a motion to suppress, as unduly suggestive, a photo lineup which 

ultimately was admitted into evidence at trial. Turner/Finley Brief at 7.

“’Whether an out of court identification is to be suppressed as 

unreliable, and therefore violative of due process, is determined from the 

totality of the circumstances.’” Commonwealth v. Fulmore, 25 A.3d 340, 

346 (Pa. Super. 2011) (quoting Commonwealth v. Carson, 741 A.2d 686, 

697 (Pa. 1999)). “Suggestiveness in the identification process is a factor to 

be considered in determining the admissibility of such evidence, but 

suggestiveness alone does not warrant exclusion.” Id. (internal quotation 

marks and citation omitted). 

“Photographs used in line-ups are not unduly suggestive if the

suspect’s picture does not stand out more than those of the others, and the 

people depicted all exhibit similar facial characteristics.” Commonwealth 

v. Fisher, 769 A.2d 1116, 1126 (Pa. 2001). “A photographic identification 

is unduly suggestive if, under the totality of the circumstances, the 

identification procedure creates a substantial likelihood of misidentification.” 

Commonwealth v. DeJesus, 860 A.2d 102, 112 (Pa. 2004). 
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Appellant complained that he was only one of two men pictured who 

wore his hair in cornrows while the others were bald or had shorter 

hairstyles. Turner/Finley Brief at 7. Further, Appellant contended that not 

all of the men depicted were of the same skin tone as he. Id.

Our review of the photo array confirms counsel’s assertion that the 

claim lacks merit. Although not all of the men have identical coloring or hair 

styles, all fit within the witnesses’ description of the perpetrators as “two 

black males, different heights and different skin complexion, darker and 

lighter.” Turner/Finley Brief at 7 (quoting N.T., 10/21/2015, at 9). More 

importantly, nothing about the array causes Appellant’s photo to stand out 

from the others to suggest that he be identified. See Commonwealth v. 

Howard, 659 A.2d 1018, 1023 (Pa. Super. 1995) (affirming the denial of a 

suppression motion where the “appellant’s picture did not stand out more 

than the other photos and the men depicted therein all exhibited similar 

facial and bodily characteristics”). 

Because the underlying suppression issue lacks merit, counsel was not 

ineffective in failing to pursue it. Commonwealth v. Keaton, 82 A.3d 419, 

426 (Pa. 2013) (quoting Commonwealth v. Pursell, 724 A.2d 293, 304 

(Pa. 1999)) (“[I]t is axiomatic that [trial] counsel will not be considered 

ineffective for failing to pursue meritless claims.”). 
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Appellant’s remaining issue is whether direct appeal counsel was 

ineffective in failing to appeal the trial court’s denial of Appellant’s Batson

challenge. Turner/Finley Brief at 9. 

In Batson, the United States Supreme Court held that the 

Equal Protection Clause forbids a prosecutor from challenging 

potential jurors solely on account of their race. The framework 

for analyzing a Batson claim is three-fold:

[F]irst, the defendant must make a prima facie

showing that the circumstances give rise to an 

inference that the prosecutor struck one or more 

prospective jurors on account of race; second, if the 

prima facie showing is made, the burden shifts to the 

prosecutor to articulate a race-neutral explanation

for striking the juror(s) at issue; and third, the trial 

court must then make the ultimate determination of 

whether the defense has carried its burden of 

proving purposeful discrimination. 

* * *

The second prong of the Batson test, involving the 

prosecution’s obligation to come forward with a raceneutral explanation of the challenges once a prima 

facie case is proven, does not demand an 

explanation that is persuasive, or even plausible. 

Rather, the issue at that stage is the facial validity of 

the prosecutor’s explanation. Unless a 

discriminatory intent is inherent in the prosecutor’s 

explanation, the reason offered will be deemed race 

neutral.

If a race-neutral explanation is tendered, the 

trial court must then proceed to the third prong of 

the test, i.e., the ultimate determination of whether 

the opponent of the strike has carried his burden of 

proving purposeful discrimination. It is at this stage 

that the persuasiveness of the facially-neutral 

explanation proffered by the Commonwealth is 

relevant.
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Commonwealth v. Williams, 980 A.2d 510, 529-30 (Pa. 2009) (quoting 

Commonwealth v. Cook, 952 A.2d 594, 602-03 (Pa. 2008)) (citations, 

quotation marks, and emphasis omitted). 

“[A] trial court’s decision on the ultimate question of discriminatory 

intent represents a finding of fact of the sort accorded great deference on 

appeal and will not be overturned unless clearly erroneous.” 

Commonwealth v. Roney, 79 A.3d 595, 619 (Pa. 2013) (quoting 

Williams, 980 A.2d at 531). “Such great deference is appropriate and 

warranted because the trial court, having viewed the demeanor and heard 

the tone of voice of the attorney exercising the challenge, is uniquely 

positioned to make credibility determinations.” Id. 

The PCRA court, which also sat as the trial court, offered the following 

description of Appellant’s Batson challenge at trial:

Defendant is African-American. During trial, [trial counsel] 

raised a Batson challenge when the prosecutor moved to strike 

the only African-American juror on the jury panel. The 

prosecutor explained three reasons for striking the juror. First, 

because the juror was a nursing assistant, and the prosecutor 

likened the profession to clergy or teachers, who[m] the 

prosecutor categorized as having a greater amount of sympathy 

generally. Second, the juror failed to make eye-contact with the 

prosecutor, and third because the juror lived in an area [(South 

Queen Street)] where her last name [(Johnson)] was associated 

by police with criminal activity. 

PCRA Court Opinion, 11/2/2015, at 4 (footnote omitted). The trial/PCRA 

court determined that Appellant made his prima facie showing and that the 
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Commonwealth offered race-neutral reasons for the strike, and gave the 

following explanation for its decision to deny the challenge:

I am going to find that I don’t believe that the 

Commonwealth intended to use this in a racial manner. I think 

the reason stated for striking her [] based on where she lived is 

weak, and it raises concern with the [trial c]ourt because that is 

a predominantly African-American neighborhood.

[The Commonwealth’s presumption] that because 

somebody is named Johnson and must be related to a bunch of 

criminal Johnsons, also has a taste about it that is not in itself as 

neutral as this [c]ourt would like to hear in the circumstances 

that she is the sole African-American on this panel.

However, putting that aside I find that the rational[e] 

about striking the nurses, teachers and clergy is a racially 

neutral one. The lack of eye contact [-] you have to give a 

certain level of deference to counsel for either side to use their 

experience and knowledge on how people answer questions in 

exercising challenges, so I will deny the motion at this point.

N.T., 6/4-5/2012, at 95.

Thus, the PCRA court gave serious consideration to Appellant’s Batson

challenge but ultimately was convinced, based upon the totality of the 

circumstances, that the Commonwealth was not guilty of purposeful 

discrimination. Our review of the record reveals no reason why we “should 

not extend great deference to the PCRA court’s ruling on the question of the 

prosecutor’s discriminatory intent or lack thereof.” Roney, 79 A.3d at 622. 

Accordingly, the claim on appeal challenging the court’s ruling on the 

Batson challenge would not have merited Appellant relief. Appellant’s 
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appellate counsel was not ineffective in failing to pursue this non-meritorious 

claim on appeal.

Because we agree with Appellant’s counsel that none of the issues 

Appellant raised in his PCRA petition has merit, we grant his petition to 

withdraw and affirm the order dismissing Appellant’s PCRA petition.

Petition to withdraw granted. Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/26/2016