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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. SHAUN EDWARD KIMMEL Appellant No. 359 WDA 2016 Appeal from the PCRA Order February 3 , 2016 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP - 65
- CR - 0001950
- 2012
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J. * MEMORANDUM BY OTT, J.: FILED NOVEMBER 23, 2016 Shaun Edward Kimmel 1 appeals pro se 2 from the order entered February 3, 2016, in the Court of Common Pleas of Westmoreland County, that denied his first petition for collateral reli ef, filed pursuant to Pennsylvania’s Post Conviction Collateral Relief Act (PCRA), 42 Pa.C.S. §§ 9541
– 9546. Kimmel was sentenced to serve a term of three to six years’ incarceration, after he was convicted by a jury of three counts of delivery of

____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Kimmel’s first name also appears in the record as “Shawn.”
2 The PCRA Court granted appointed counsel’s request for leave to withdraw after counsel filed a no
- merit letter. See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ).J - S78026
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- 2
-

a contr olled substance, three counts of possession of a controlled substance with intent to deliver, and three counts of possession of a controlled substance. 3 Kimmel contends (1) appellate counsel was ineffective during the direct appeal stage in failing to pre serve or argue to this Court the issues identified in the Pa.R.A.P. 1925(a) statement, i.e. , the insufficiency of the evidence and the admission of hearsay testimony, and (2) appellate counsel was ineffective in failing to preserve and argue in this Court the issue of whether the trial court erred in permitting the Commonwealth to introduce hearsay evidence at trial. See Kimmel’s Brief at 5. Based upon the following, we affirm on the basis of the PCRA court’s sound opinion. Briefly, we note the charges a gainst Kimmel arose from his delivery of heroin to a confidential informant (CI) on three separate occasions. Each delivery involved a controlled purchase by the CI from Kimmel and each purchase was observed and monitored by police. Following sentencing, Kimmel filed a direct appeal, and this Court affirmed the judgment of sentence on February 12, 2014. Commonwealth v. Kimmel , 97 A.3d 802 [651 WDA 2013] (Pa. Super. 2014) (unpublished memorandum) (finding sole claim challenging the weight of the evidence waived for failure to present to trial court and include in the Rule 1925(b) statement).

____________________________________________ 3 See 35 P.S. § 780
- 113(a)(30) and (a)(16).J - S78026
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- 3
-

On August 25, 2014, Kimmel filed a pro se PCRA petition. Counsel was appointed and filed an amended PCRA petition on September 14, 2015. An evidentiary hearing was held on October 20, 2015. Subsequently, on November 15, 2015, appointed counsel filed a no
- merit letter and requested leave to withdraw. On January 13, 2016, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss. On February 3, 2016, the PCRA court dismissed the petition, and granted appointed counsel’s request to withdraw. This timely appeal followed. 4 The pri nciples that guide our review are well settled: Under the applicable standard of review, we determine whether the ruling of the PCRA court is supported by the record and is free of legal error. We apply a de novo standard of review to the PCRA court’s le gal conclusions.
**** With respect to Appellant’s claims of ineffective assistance of appellate counsel, we begin with the presumption that counsel is effective. To prevail on an ineffectiveness claim, Appellant must satisfy, by a preponderance of the e vidence, the performance and prejudice standard set forth in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This

____________________________________________ 4 We note Kimmel filed a pro se notice of appeal that is time
- stamped March 4, 2016. We also note Kimmel’s notice of appeal and brief in support of appeal were mailed from prison in an envelope post
- marked March 1, 2016. According to the prisoner mailbox rule, an appeal will “be deemed ‘filed’ on the date that the appellant deposits the appeal with prison authoritie s and/or places it in the prison mailbox. ” See Commonwealth v. Jones , 700 A.2d 423, 426 (Pa. 1997).J - S78026
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Court has divided the performance component of Strickland into two subparts dealing with arguable merit and reasonable strategy.
... Commonwealth v. Pierce , 515 Pa. 153, 527 A.2d 973, 975
- 77 (Pa. 1987). With regard to “reasonable basis” in the appellate context, “[i]t is well settled that appellate counsel is entitled, as a matter of strategy, to forego even meri torious issues in favor of issues he believes pose a greater likelihood of success.” To establish Strickland/Pierce prejudice in the appellate representation context, the petitioner must show that there is a reasonable probability that the outcome of the d

irect appeal proceeding would have been different but for counsel's deficient performance. The PCRA court has discretion to dismiss a petition without a hearing when the court is satisfied “‘that there are no genuine issues concerning any material fact, the defendant is not entitled to post - conviction collateral relief, and no legitimate purpose would b e served by further proceedings.’” “To obtain reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.” Commonwealth v. Blakeney , 108 A.3d 739, 749
- 50 (Pa. 2014) (some citations omitted) (emphasis added). In his first issue, Kimmel contends counsel was ineffective on direct appeal because she failed to argue either of the issues raised in the Pa.R.A.P. 1925(b) statement
— namely, the circumstantial evidence presented by the Commonwealth was insufficient to support Kimmel’s convictions, and the trial court erred in permitting the trial court to introduce hearsay evidence at trial
— and argued a weight claim that this Court found to be waived. Kimmel posits that appellate counsel’s failures completely foreclo sed appellate review. In this regard, Kimmel contends that appellateJ - S78026
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- 5 -

counsel’s ineffectiveness was equivalent to the failure to file a brief, and as such, he is entitled to a presumption of prejudice. In his second issue, Kimmel argues that appellate cou nsel was ineffective in failing to preserve and argue that the trial court erred in admitting out
- of
- court statements of identification by the CI in violation of the hearsay rule, Pa.R.E. 803.1(2). See Kimmel’s Brief at 9. T he PCRA judge, the Honorable R ita Donovan Hathaway, has authored an opinion that cogently rejects, inter alia , the two arguments raised in this appeal. See PCRA Court Pa.R.A.P. 1925(a) Opinion, 6/6/2016, attaching Order of Court and Notice of Intent to Dismiss, 1/13/2016, at 1
– 10, and 12 (finding: (1) counsel’s failure to pursue on appeal every claim requested by a defendant is not per se ineffectiveness, and Kimmel must satisfy the Pierce ineffectiveness test; trial court had determined in its Rule 1925(a) opinion that there was a ple thora of evidence to support Kimmel’s conviction and same facts support the notion that the jury verdict was not against the weight of the evidence; Kimmel’s weight of the evidence claim fails under all three prongs of the ineffectiveness test, and (2) Ki mmel’s hearsay challenge to Sergeant Fiscarella’s testimony with respect to the August 14, 2011 controlled buy, regarding the CI’s identification of Kimmel by looking at a J
NET photograph, fails under the prejudice prong; although admission of such eviden ce was error because CI was not present at trial and did not testify,
see Pa.R.E. 803.1(2), the error was harmless, given the testimony of policeJ - S78026
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- 6
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about identifications made shortly after the controlled buys and credible in
court identifications of Kimmel). Our review confirms that further discussion by this Court is not warranted here. Accordingly, we affirm the denial of PCRA relief on the basis of the PCRA court’s able opinion. 5 Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/23/2016

____________________________________________ 5 In the event of further proceedings, we direct the parties to attach a copy of the PCRA Court’s Pa.R.A.P. 1925(a) Opinion, 6/6/2016, attaching Order of Court and Notice of Intent to Dismiss, 1/13/2016, to this memorandum.c.c. File John Petrush , Esq., Assistant District Attorney Shaun Edward Kimmel, Defendant D.O.C. #KY7015, Unit/Side: JIB, SCI Albion, 10745 Route 18, Albion, PA 16475-0002 Pamela Neiderheiser, Esq., Court Administrator's Office ATTEST: Opinion dated dated January 13, 2016. A copy of that Opinion is attached hereto for reference. Conviction Relief dated February 3, 2016, the reasons for said decision appear in this Court's Defendant filed a Notice of Appeal from this Court's denial of Defendant's P etition for PostAND NOW, this 

# & day of June, 2016, it appearing to this Court that the

STATEMENT OF THE COURT ISSUED PURSUANT TO PA.R.A.P. RULE 1925 No. 1950 C 2012 COMMON\VEALTH OF PENNSYLVANIA ) ) 

## vs. ) ) SHAUN EDWARD KIMMEL ) ) Defendant. ) IN THE COURT OF COl\TMON PLEAS OF \VESTMORELAND COUNTY,

PENNSYLVANIA - CRIMINAL DIVISION Circulated 11/01/2016 03:50 PMP e nn sy lvan i a S u perio r Court affi rm e d th i s C ou rt 's Jud g me nt of Se nt e n c e o n M arc h 28 , 20 1 4
.

fi l e d hi s No tice of App e al to th e P enn syl vani a Sup eri or C o urt on M ar c h 28 , 2 01 3. T h e i n carcerati o n , wi th cre dit for lim e s erved, and w a s dee m e d to be R RR[ eligi bl e. De f e nd an t se p ar ate sale s of her o in. He w a s s e nten ce d on M ar c h I , 2 0 13 t o a perio d of thre e t o s i x y e ar s vi o lati o ns o f th e Controll e d Su bs t an c e , Dru g , Devi c e and Cos m e tic Ac t ari sing fr om thr ee

T h e De fend ant , S h aun E dward Kimmel , wa s co nv i cte d of n i ne co unt s o f p urp ose to be serv ed in further proc ee din g s fo r th e fo ll o win g re aso n s : C ou rt that th at th er e may b e n o g enuin e i ss u e of m at eri al fac t , n o e ntitlem e nt t o re li e f an d n o h as b e e n att ac h ed to thi s O rd er) and u p o n a rev iew o f th e r eco r d i n thi s c ase , i t ap p ears t o thi s J ame s R obin s o n, Esq ., cou rt- appoi n t e d P C RA C oun se l for the De f e ndant ( a copy o f wh ich ( 42 P a . C.S
. § 9541, e t. seq). and u p on c on si deration of th e N o M eri t Le tter s u bmi tte d by 

### pro -se P eti ti on fo r Pos t
- Co n v i cti o n R elie f fil e d p u r s u ant t o th e Po st
- C on v icti o n Re lief Act. ANO N OW, thi s /.Jd ay of Janu ary, 2 016 , u p o n c on s id eratio n o f th e D efe nd ant' s

ORDER OF COURT AND NO T I CE O F INTENT TO DI S MIS S N o . 1 95 0 C 2 01 2 COM MONW EA L T H OF P ENN S Y LV AN IA ) )

- vs. - ) ) S HA UN E DWA RD KIM M E L, ) D e f e nd an t. ) IN T HE COURT OF C OMMON PL E AS OF WESTMORE L AND C O UN T Y,

P F-NN S YL V ANIA - CRIM I NAL DIVI S ION2 I Numerals in parenthesis preceded by the letters "TT" refer to specific pages of the transcript of the testimony presented at the trial of this matter, held on December 4 - 6, 2012 before this court, which is made a part of the record herein. Defendant immediately after the transaction through the use of Defendant's JNET driver's recorded currency. (TT 132-36). 1 Chief Berger identified the seller of the heroin aswhich the CI and Berger were traveling, and transfer heroin to the CI in exchange for the pretestified that he saw Defendant exit his trailer, walk to the driver's side of the vehicle in been strip-searched and provided with money, drove to the parking lot of the trailer park. He Borough Police Department testified that he, as the undercover officer, and the CJ, who had Trailer Park in Derry Township, Westmoreland County. Chief John Berger of the Ligonier The first controlled buy was conducted on June 12, 2011 in the parking lot of the J&L Cl 

### on each of the three occasions. with 

### which lo conduct the transaction. Finally, an undercover police officer accompanied the money on his/her person. On each occasion, the CI was provided with pre-recorded currency each occasion. the Cl was strip searched to verify that the Cl had no controlled substances or "CI"), from Defendant that was monitored and observed by law enforcement authorities. On occasion involved 

### a controlled purchase 

### of heroin by the confidential informant, (hereinafter ("Defendant") delivered heroin lo a confidential informant on three separate occasions. Each The evidence presented at trial established that Defendant. Shaun Edward Kimmel FACTUAL HISTORY requested leave to withdraw as counsel. Defense counsel James Robinson, Esq., filed a No-Merit Letter on November 16, 2015, and Defendant timely filed a pro-se Petition for Post Conviction Relief on August 25, 2014.3

license photo. (TT 138-40). This controlled buy was also monitored by other members of the Westmoreland County Drug Task Force. The second controlled buy was conducted on August l 0, 2011 at the II Brothers Bar on Route 982 in Derry Township, Westmoreland County. Officer Amber Noel of the Ligonier Town s hip Police Department, acting as the undercover officer, accompanied the Cl , who had been strip-searched and provided with pre-reco r ded currency, to the parking lot of the bar. Officer Noel testified that she observed the Cl get out of their vehicle, approach Defendant in his car, conduct a transaction , and return to the task force vehicle. ( TT 142-44). Officer Noel was able to see the person who provided the heroin to the CI, and immediately identi tied Defendant as that person after the controlled buy through the use of Defendant's JNET driver's license photo. (TT 144). The third controlled buy was conducted on August 14, 2011, again al the II Brothers Bar on Route 982 in Derry Township, Westmoreland County. Officer Robert Hakel of the Ligonier Borough Police Department, acting as the undercover officer , accompanied the CI, who had been strip-searched and provided with pre-recorded currency, to the parking lot of the bar. Officer Hakel testified that he observed the Cl get out of their vehicle, approach Defendant in h i s car. conduct a transaction, and return to the task force vehicle. (TT 149~50). Officer Hakel was able to see the person who provided the heroin to the CI, and he identified Defendant as that person immediately after the controlled buy through the use of Defendant's JNET driver's license photo. (TT J 51-52). ELIGIBILITY FOR RELIEF:4

his 

### pro- se PCRA p e titi o n. D e fen dant as serts th at his coun s el failed t o rai s e the is s ue o f Def e nd ant n ow rais es th e foll o wing issues a s re asons why h e is e ligible for reli ef
. f n 

# u. . citing Commonwealth v. Holl o way, 55 9 Pa. 2 58, 7 3 9 A.2d 103 9, 10 4 4 (19 9 9). ( 1) that th e r e i s merit to the underlying c laim; (2) that c oun se l h a d no r eas on able b a si s for his o r her cours e of c ondu c t; an d (3) th at th e re is a r eas on able probability that , but for the a c t o r o mis s ion chall e ng e d, the outcome of the pr o ce e din g would h ave b ee n different. Commonw e alth v . Jon e s , 54 6 P a . 161, 175 , 6 8 3 A .2d 1181, 1188 ( 1996)
. Counsel i s pr e su me d to b e effectiv e and App e llan t has th e burd e n o f pr o ving otherwi s e . Commonw e alth v. Mar s hall. 534 Pa. 488 , 6 33 A. 2d 1100 ( 1993)
. Ad d itionally, counsel can n ot be c o n s ide r ed in e ffectiv e for failing to rais e a cl aim that i s w ithout meri t. Commonwealth v . 

### P e terkin. 538 Pa
. 455 , 64 9 A.2d 1 2 1 ( 19 9 4)
.. .. coun se l. he must plea d and prov e, by a pr e ponderan ce of the e v i dence: Additio nally, be c aus e the D e f e nd ant has rai se d all e gation s of i n effe c tive a s si s t ance of Commonwealth v. Rivers
. 567 P a. 239, 245 -2 46 , 786 A. 2d 9 2 3 , 927 (Pa. 200 l )
. PCRA petitioner s . t o be e li g ible fo r r e li e f, mu s t, i nte r alia , ple a d and prove their a ssertion s 

### by a prepond erance of the evidence. Se cti o n 9 5 43( a ). Inherent in thi s pl eadi ng and pro o f requirement i s th at the p e titi on er mu s t not o nly s tat e wh at hi s issu e s are , but al so he mus t dem o n s trat e i n his pl e adings and bri ef s h o w the issues will be pr o ved
. Moreover , alleg ation s o f con s tituti o nal v iol ation o r of ineffectiv e ness of c o un s el mu s t b e di s cusse d " in the circumstances of the ca se ." Se cti o n 9543( a)( 2)(i-ii). Additi on ally, th e p e ti tion e r mu s t e s tabli s h by a prep o nd eranc e of eviden c e that b ec au s e of the alleg e d con s titution al vi o lation or ineffe c tiven es s, "n o rel iab le a djudi cati o n o f gu i lt o r innocenc e c ould hav e t ake n plac e . " S ec tion 9543(a)(2)(i-ii)
. F in ally , p e ti ti o ner must plead and prov e th at th e issu e ha s not been waived o r fin ally liti gated
. §9543( a) (3), and i f th e is s u e h as not b een liti gate d earli er , th e petition e r must ple a d and prove that the failure t o litigate "c oul d n o t hav e b ee n th e re s ult of an y rati o nal, s trate gic o r t a ctic al decisi o n by coun s el
. " Section 95 4 3 ( a )(4)
. Pr o cedure (Pa.R
. Crim
. P
. Rules 9 01 and 9 0 2 )
. Gen erally s pe aking , fo rth b o th in the Ac! itsel f (42 P a .C.S
. §9 5 41, 

### e t. seq.) and in the Rules o f Cri min al The r e quirem e nts fo r el i g ibility fo r relief under the Post-Convi c tion Relie f Act are se t5 The complete failure to file the 1925 concise statement is 

### per se ineffectiveness because it is without reasonable basis designed to effectuate the client's interest and waives all issues on appeal. Likewise> the untimely filing i s 

### per se ineffectiveness because it is without reasonable basis designed Burton recited: 214 (Pa. 1999): 

### Comm. v. B11rto11, 973 A.2d 428. 432 (Pa.Super. 2009). As the court in 

### functional equivalent of having no representation 

### at all); 

### see also 

### Comm. v. Lantzy, 558 

### Pa. A.2d 795, 801 (Pa. 

### 2005) (holding that the failure to p erfect a requested direct appeal is the 1925 Statement
. counsel's inaction r e presents per-se ineffectiveness. Comm. v. Halley, 870 counsel fails entirely lo file a direct appeal when directed by a defendant, including a Rule weight of the evidence in Defendant's 1925 Statement. ft is certainly true that where trial Defendant first asserts that trial counsel was ineffective for failing to raise a claim of I. WHETHF,R TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO PRESERVE THE ISSUES OF WEIGHT OF THE EVIDENCE ON APPEAL TO THE SUPERIOR COURT? suggestive. (No Merit Letter 3). that the identification procedure which was used to identify Defendant was unduly delivered the heroin during the drug transaction. (No-Merit Letter 3). Last, Defendant asserts unable to testify al trial, identified Defendant in a JNE T photograph as the person who that it was reversible error for Sergeant James Fri s carella to testify that the Cl, who was lo introduce hearsay statements at trial. (No-Merit Letter 3). The Defendant also contends by failing to preserve the issue of whether this Court erred in permitting the Commonwealth representation." tPro-se PCRA 18). Defendant also asserts that trial counsel was ineffective issue was waived al the Superior Court level, and Defendant "feels he was denied competent weight of the evidence in his Rule 1925(b) Statement. (No

- Merit Letter 3). As a re s ult , the6

baseless or frivolous issues." Comm. v. Gwy1111, 943 A.2d 940, 948 (Pa. 2008). See Ali. IO A.3d at 282. Also, "counsel will not be deemed ineffective for failing to raise contested choices had some reasonable basis "designed to effectuate his client's interests." omitted). Generally, counsel's assistance is deemed constitutionally effective so long as its these prongs, his claim 

### fai Is." Comm. v. Simpson. 66 A.3d 253, 260 (Pa. 2013) ( citation 

### Comm. v. Ali, IO A.3d 282, 291 (Pa. 20 I 0). Further, "if a petitioner fails to prove any of action or inaction; and (3) the petitioner suffered actual prejudice as a result. Id.; see also (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his standard, a defendant must meet all of the following three prongs to prove ineffectiveness: meet the three prongs established in 

### Comm v. Pierce, 527 A.2d 973 (Pa. 1987). Under this Thus. because per-se ineffectiveness is not implicated in this case, Defendant must Comm. v. Grose/la, 902 A.2d 1290, 1293

- 94 (Pa.Super. 2006) (citation omitted).

"It is also well-settled that the reinstatement of direct appeal rights is not the proper remedy when appellate counsel perfected a direct appeal but simply failed to raise certain claims. Where a petitioner was not entirely denied his right to a direct appeal and only some of the issues the petitioner wished to pursue were waived, the reinstatement of the petitioner's direct appeal rights is not a proper remedy." defendant, per-se ineffectiveness is not implicated. On the other hand, where counsel fails to pursue every claim requested by a Id. at 432-33. lo effectuate the client's interest and waives all issues on appeal. Thus untimely filing of the 1925 concise statement is the equivalent of a complete failure to file. Both are per se ineffectiveness of counsel from which appellants are enti tled lo the same prompt relief.7 In this case, Defendant fails the first prong, as he cannot assert that his claim has arguable 

### merit. A claim has arguable merit if 

### counsel's act 

### or omission conflicts with a constitutional guarantee, statute , rule of procedure, or established precedent. See, e.g . , Comm. v. Bennett, 19 A.Jd 541 (Pa.Super. 2011 ), Comm. v. Jo!,11so11. 875 A.2d 328 (Pa.Super. 2005) , Comm.
v. Poplawski, 852 A.2d 323 (Pa.Super. 2004). As stated above , although Defendant certainly has a constitutional right to file an appeal, reinstatement of a defendant's appellate rights are not the proper remedy where defense counsel does not further every argument suggested by, or available to, a defendant. As discussed, infra. weight of the evidence arguments are very
narrov .. -ly construed. The facts in this case are 

### not so extraordinary as to shock one's sense of justice, which would garner Defendant relief. Thus, this claim is meritless, and Defendant's ineffectiveness claim must fail for not meeting the arguable merit prong. Even assuming, arguendo, that Defendant's claim did have arguable merit, Defendant also fails the second prong under Pierce, as defense counsel acted reasonably in not furthering Defendant's weight of the evidence claim. To successfully argue that defense counsel had no reasonable basis for his or her actions, courts "do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis." Co11mL v. Washington, 927 A.2d 586 , 594 (Pa. 2007). Further, a court can only conclude that counsel's strategy lacked a reasonable basis if a defendant proves that "an alternative not chosen offered a potential for success substantially greater than the course actually pursued. H Comm. v. Williams, 899 A.2d I 060, 1064 (Pa. 2006). In this case. Defendant did not have any potential for success in his weight of the evidence claim. A new trial is warranted on weight of the evidence grounds only in8 Ex c ep t a s au th orized by th is ac t , th e man u fa c ture , delivery, or p ossess i o n w ith in te nt to m anu fa c ture o r d e li ver, a controlle d su b s t an c e b y a p er so n not re g i s t e re d un d er thi s ac t , o r a p ra ctiti on er no t r e gi st er ed o r li cens e d by th e ap p ropri at e Stat e fo llo wing acts are p roh ibit e d: D e fend ant w a s also c onvi c ted o f § A JO of th e sam e Ac t , wh i c h r eads th at th e knowing ly or i n tenti o n all y p ossess ] es] a contro ll ed o r c o u nte rf e i t s ubstance [an d i s no t] a pe r so n not reg i s te r e d unde r thi s ac t. o r [ is ] a p ra ctiti oner not r egis t e r ed or li ce n sed by the ap pr o pri ate S tate b o ard , unl e s s th e sub stanc e was ob t ai n e d dire ctly fro m . or pu r s uan t t o , a v alid p r e s c ri p tion o r d er or o rd er of a p ra cti tio ne r . or exce p t a s o th e rw is e autho ri z ed by thi s a c t. 35 P .S. § 78 0

- 11 3 §A l 6
. i s in vi ol ati on o f th e C on tro ll ed Su b st an ce , D ru g , Dev i ce an d C o s m e ti c Ac t where h e : Defe nd ant ' s g uilty v e r di ct was n o t ag ain s t th e w e ig h t o f th e ev i dence. An ind ividual v . Wid m e r, 744 A.2 d 745 , 7 52 (P a . 2 00 0 ). th at t o i g nor e th e m o r t o g i v e them e qual wei g h t w i th all th e fac t s i s t o deny ju s ti c e. '" Co mm . t o determin e th at 'n otwi th s tand in g all th e fac t s , c ertain facts are so cl earl y of great er we i ght ev ide n c e c l ai m , "

ju d ge s d o n o t si t a s th e thi rte enth ju ror . Rath er , the ro l e of the trial j u dge is d is ap p oi n ted , o r unc om fo rt abl e, b ut s ho cked." C riswell , 834 A.2d at 5 1 3
. F or a we i ght of the ci r cums t an ces, to ove rturn tho s e assessment s whe n th e j udi cial consci e nce i s not mere l y in a s sessi ng credi b i li ty an d th e limit e d p o w e r o f tri al j ud g es , in n arrow l y c ir cum s c ri bed b ecau s e o f th e " o b v i o u s tens i o n b e tw e e n the broa d , se ttled , exc l us i ve ro l e of the fac t -finde r Supreme Court al so n oted that weig ht of th e ev i de n ce argumen t s are narrow l y c o nstrued 

### als o A rmbru s ter v. Horowitz
. 5 72 P a . I, 8 I 3 A. 2 d 69 8 , 7 0 3 (2002). The Pennsy lv an ia giv en an o th er o p po rtu ni ty to prevail. : ' ' C ri swe ll v. Kin g, 834 A.2d 5 0 5, 5 1 2 (Pa
. 2003); s e e i t s h oc k s o n e 's se n se o f ju s ti c e an d th e a war d of a n e w tri al is imperative s o that right may be e xtra or dinary cir c umst anc es , o r " w hen th e j ury ' s v erdi c t i s 's o con trary t o th e ev i de n ce th at

### 9

reas on abl e pr o b abili ty th at th e o u tcom e o f th e proc ee din gs w ou ld h av e be e n di fferent." p e tition e r dem o n s trat es th at "but for the erro rs and o mi ss ion s of coun se l , th e re i s a a ctu al prejudice a s a res ult of de fe n s e c o un se l' s action s . Pre judic e is es t abli s h e d wh e r e a For m any o f th e sam e r e a so n s, D e fendant al s o fail s th e third pron g , a s h e di d n o t s u ff e r co un s el ac t e d rea son ably in n o t pur s uing th e cl aim at th e Superi o r Court lev e l. B e cause th e evidence pres e nte d at tri al wa s n o t again s t th e wei g ht of the e vid e nc e , d e f e nse Furth e r, an und e rco v e r o ffic er a ccomp anied the Cl s on ea c h o f th e thre e controll e d buy s. s trip searc hed t o en s ure th at there w er e no c o ntro ll e d s ub s t an c e s o r mon ey on th e ir p e r so n. inform ant w a s monit o red and ob s erve d by J a w e n fo r ce ment au th o riti es . T h e informan ts w e r e gr e at w e i g ht as t o deny D e fendant ju s tice. During ea ch of th e c o ntr o lled bu ys , a co nfid e nti al Thi s C ourt cannot lo cat e any fa ct s pr ese nted at tri al o r th e r eafte r whi c h ar e of su c h h ero in t o th e C l o n thr e e s e p arat e occas ions. " Id
. c learly s ufficient to s upport the jury's fi n ding th at Kimmel was the indi v idu al who d e livere d l s sued Pursuant to Pa.R.A.P. 1 92 5, pg. 4). Thus, this C ourt found that "the eviden c e w a s Kimm e l a s th e h e roin d e al e r through u s e of hi s JNE T photo g raph." (Opinion o f the Co urt th e co ntrolled buys had ampl e o pportunity to obs erv e Kimmel clearl y and all indentified and at times wh e re th e under co ver offic ers a s well as the offi ce rs conducting s urveill ance of underc o ver officers w e re abl e to identify Def e ndant , and "the trans ac ti o ns oc c urred i n place s verdict w a s not again s t the wei ght o f th e e vidence. Thi s C o urt re ite rate d th at eac h o f the thre e evid e n ce to s upport D e fendant' s conviction
. T he sam e facts s upport th e noti on that th e j ury Thi s Court had al rea dy d e termin e d , in its 1 9 25 Opinion , th at the re was a pl e thora o f

board
. or kno w i n gl y cr eatin g, d e liverin g o r p osses sing w ith intent t o deli ve r, a counterfeit controll e d sub stan c e . 35 P.S
. § 780

- 113 §A30.10

objected on the basis of hearsay. That objection was overruled. (TT 73-74). Counsel again 201 l, Friscarella indicated that there was. When asked who that target was, defense counsel When asked whether there was a target for the first controlled buy conducted on June 12, testified regarding his role in the undercover drug investigation that led to Defendant's arrest. information that the police officers had gained through the CI. Sergeant James Friscarella objections at the outset of the trial on three occasions, seeking to bar the admission of any ruled that these statements were 

### prop e rly admitted. Defense counsel raised hearsay Defendant did not suffer any prejudice by the argument's omission, as this Court previously Even assuming arguendo that defense counsel did not properly preserve the issue, confidential informant." (Concise Statement 2). testimony through Sergeant Friscarella regarding info rmation supplied to them by the one of the confidential informants, "the Commonwealth was still permitted to present ample counsel opined that despite the fact that the Commonwealth did not disclose the identity of defense counsel did raise the issue of these hearsay statements in its l 925 Statement. Defense 

### issue of"improperly admitted 

### hearsay evidence." This Court 

### first notes that it 

### appears that Defendant's second issue suggests that defense counsel also erred in not preserving the II. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO PRESERVE THE ISSUE OF WHETHER HEARSAY EVIDENCE WAS PROPERLY ADMITTED TO THE SUPERIOR COURT? relief. that had his counsel pursued such a claim. that the Superior Court would have granted him conviction was not against the weight of the evidence. Therefore, Defendant cannot establish Comm. v. Kimball, 724 A.2d 326, 333 (Pa. 1999). As discussed supra , Defendant'sl I

ad mitte d h as no arg u abl e m e rit. T hu s , th is in e ff ec tiven e s s ar g um ent must al so fai l. d is cr e ti o n i n ad mi ttin g th is t es tim o n y , and D e fend ant's c l ai m th at th ey we r e imp r ope rl y the C ommo n w ealth and th e tim e l y o bj ec ti o n th e r e t o . T h er efo re) th e r e w a s n o abu s e o f g iv e n in th is case. n o ne wa s n e c essary g iven th e v e ry limit e d n atur e o f th e ques ti on p o sed 

### b y Dargan , 8 9 7 A. 2 d 4 96 , 5 00 ( Pa
. Sup er. 200 6 )
. Although th e r e w as n o limiti n g in s tru c ti o n this limit e d purpo se . See , e . g ., Co mm . v. Estepp , 1 7 A.3d 9 39 (Pa. Super 2 011); Comm . v . Simil ar chall e ng e s t o th e a dmi ss ion 

### o f s uch evi de nce 

### h av e b ee n un s u cc e ss ful w h e n u se d 

### fo r info rmation i s cle arly a dmi ss ible to e st abli s h the cou rse o f c o ndu c t on th e p art o f th e p olic e . inform ant ( o r inf

o rmant s ) as s ug ge ste d on pa ge s 73 ~ 74 of th e tri al tran script , s u c h With r egard to th e b a ckgrou n d informati o n pr o vid e d to th e p o li ce by th e co nfi denti al wa s an excepti o n t o the he ar say rul e . up o n th e C o mmonw ealth 's as se rti o n th at a s t at ement m a d e fo r th e purp ose of i d entifi c atio n p h o to g raph s hortly afte r th e contr o ll e d buy
. (TI l 03 ). T h at o bj e c ti o n wa s o ve rru le d b a se d both th e under cove r offi c er and th e c onfid e nti al inform ant id e n tifi ed Kimm e l from hi s JNET De fe n d ant's obj e ction. C ounsel obje c ted a third tim e when Serg e ant Fri sc ar e ll a te s tifi e d th at T h e Comm o nwealth withdrew that que s tion, s o there wa s n o rulin g m a d e b y th e court o n (TT 74). M S
. E L LIOTT : Obje c ti o n. He ar say . Your H onor , thi s i s th e v ery s af e guard of the hearsay rule. Mr. Kimmel is s e aled b e for e y ou charged with a variety of v ery serious charg e s, and if everything the confi d ential informant told Serge ant Frisc arcJla is admi s sible whe re i s hi s constitution al protection? Defendant: object e d wh e n Ser g eant Fri s c ar e lla wa s as ked if l aw enfor c ement h a d an a d dre ss fo r12

fails. error , no reliable adjudication of guilt or innocence could have taken place, and his claim reasons , Defendant cannot prove by a preponderance of the evidence that because of such an controlled buys. but provided credible in-court identifications of Kimmel as welt. For these testify and provided not 

### only testimony about the identifications made shortly after the harmless, given the testimony that was provided by the undercover police officers who did statements of identification made by the CL Nonetheless, it is clear that the error was subject to cross-examination. Therefore, 

### it was in fact error to admit the out-of-court never disclosed, and the Cl was not present at trial and did not testify, and was therefore not cross-examination by De fondant. However, the identity of the confidential informant was The undercover officers were available and. in fact , testified at trial and were subject to 803.1 (2). examination." 

### Comm. v. Wilson, 580 Pa. 439, 456, 861 A.2d 919, 929 (Pa. 2004); Pa.R.E. regardless of impeachment, provided that the declarant is present and subject to crossidentification, it is admissible as an exception to the hearsay rule as substantive evidence, fal1 within that limited exception. "Where , .. the prior consistent statement is one of purpose of identi fication requires that the declarant be present and testify in court in order to be admitted al trial. The exception that has been carved out for statements made for the Rule 803.1 sets forth certain exceptions to the hearsay rule which permit hearsay evidence to identification from the undisclosed Cl through the testimony of Sergeant Fiscarella. Pa.R.E. Defendant also declares that it was reversible error for this Court to admit statements of Ill. WHETHER IT WAS REVERSIBLE ERROR FOR SERGEANT FISCARELLA TO TESTIFY THAT THE CONFIDENTIAL INFORMANT, WHO DID NOT TESTIFY AT TRIAL, IDENTIFIED THE DEFENDANT BY LOOKING AT A J-NET PHOTOGRAPH?1 3

NOT I C E O F IN T E NT TO D IS MI SS: p r oce dures, and thi s arg um e nt mu s t fai l. pr e pon d erance o f the e v i d e n c e th at the verdic t was compromi se d b y suc h i d en ti fic ati o n in di v i du al i nv o l ved i n ea c h of the thr ee co n tro ll e d b u ys . Thus, D efe n d ant cann o t pro v e by a ide ntifi c atio n s w e re sustai ne d at tri al , w h e r e eac h o f th e offi c e r s id e n tifie d D e fe nd an t a s the e ac h of th e co ntroll e d 

### bu ys t ook pl a ce. (TT 1 3 8-40, 144 j 1 5 1- 52)
. Th e re li abili ty of th e se In th is cas e , un d e r co v e r po li ce o ffi c e r s wer e inunediat e l y ab l e t o identify Defendant aft e r ( D e fen d ant ' s B ri e f 8-9 )
. See a lso Co mm v . K en dr ic ks , 3 0 A.2d 4 99 ( Pa
. Sup e r , 2 011 )
. p h otograp h s a s a m e an s t o i d en tif y s u s pe ct s w ho ar e i n v o lved i n c ri min al in ve s ti gations
. " Rob i n s o n , E s q . i n h i s No

- M e rit L e tt e r , " l aw en fo r c e m en t officers ar e p e rmitt ed t o u se JNET 

### M c Ga g ltey . 5 07 A .2 d 35 7 , 3 5 9 ( P a . 1 98 6 ). An d a s no ted b y D efe n se Cou n se l J am e s identifi cati on , 

### if th e rel iability of a s ub s e qu e nt iden tifi cati on c an b e su s tain e d. " 

### Comm
. v. 3 7 7. 383 ( 1 9 6 8). H owever, "[s]ugges tive n e s s al o n e w i ll n ot fo rbi d th e u s e o f an p ro ce du r e th at e mphas i z e s o r s i n gl es out a su sp e ct. Se e Simmons v . United States, 3 90 U .S
. ( P a.S u p e r. 20 0 I). Su gg e s ti ve n ess ari se s "w h en th e p o li ce e mpl o y an i de n ti ficati o n s ub s tan ti al likelih o o d o f

mi s id e nti fic ation
. 11 

### Comm
. v. Fish e r, 769 A .2 d 1116, 11 26 me ri t. " A p h o t ograp h ic id e nti ficatio n is un dul y s u gges tive w h en th e proc edur e cre at es a him. n am el y, throu g h JN E T ph o to g raph s . was u ndu ly su g g e s tiv e . Th i s ar gu me nt i s with out Las t , D e fe n d an t alleg e s th at th e i d e ntificati o n proce du re th at o ffic ers u s e d to i de nti f y I V. W H ETH ER T HE ID E N T IFI CAT ION PROC E DURE US E D W A S U NDU L Y S UGG ES TIV E?1 4 If a r es p o n s e i s fil e d , thi s C o urt may , i n s t ead , u p o n c o ns i d e rati o n of the r es p on s e, gr an t l e av e Lo file an am e nd e d p e titi o n o r othe rw i se di re ct that th e p roc e ed in g s c o ntinue
. An y r es pon s e s h ou ld a ddr e ss s p e ci fi c ally th e ar e a s of d e fe c t delin eat e d w ithin th e b ody o f thi s O r der o f C ou rt, spe ci fi cally, 

### any re s ponse by the d e fendant must be 

### i n writing and sh all addr e ss the i s su e s addre s se d b y thi s C ou rt her e in. I f n o r e sp on s e is fil e d , thi s Cou rt s h all d i smi s s th e Def e nd ant' s pr

o - se P C RA Pe ti tio n . If a re s p onse i s file d, thi s Cou rt m ay , up o n c o n s i de ration of th e r e s p on s e, di s mi ss th e P e ti ti o n, grant l e av e l o fil e an am e nded P e ti ti on o r o th erwi s e dire c t th at th e proc e edi n g s
c o ntinue. B a se d u po n thi s co urt ' s c o n s id erati o n o f th e " N o Me ri t L e tt e r" s u bmi tt e d b y A tt orne y J am e s R ob in s o n , E s q . , an d u pon a r e v i e w of th e re cord i n thi s c a se, c o u ns e l ' s P e ti ti o n t o Wi thdr aw a s Co un se l o f R e co rd i n th i s m att e r i s take n u nd e r a dvi se me nt. T h e said Pe titi o n
s h al I b e g ran t e d b y fu rth er O r d er o f Co u rt p rov i de d th at a m e rito riou s r e s p o n s e i s n o t
r e c e i v e d b y thi s C o urt fr o m th e d e f e nd ant w ithin th e 

### tw e n ty
- d ay period se t forth ab o v e . Defe nd ant m ay . 

### if h e ch oo se s , av ail h i m s e l f of th e ass i s t an c e of P C RA c o un se l in th e p rep aratio n of thi s re s p o n se , o r h e m ay e l e c t t o fi l e th e r e quir e d r es po n s e 

### p ro- s e . THE DEFENDAN T MAY FI L E A WRITT E N RESPONSE TO THI S NOTI C E
. SU C H A RE S PONS E MUST BE FILED WI T HIN 20 DAYS FROM T H E DATE OF THIS NOTIC E
. IF NO RESPONS E IS FI L ED, THIS COUR T SHALL DISMISS THE P E TITION. Ac c ord in gl y , the Co urt h e r eb y n otifi es the parti es o f i t s intenti o n t o dis mis s the de f e nd ant' s p ro -se po st -c on vi c tion p etition
.1 5 cc : Fi l e Jo h n P e tru s h, E s q ., As si s t an t Dis trict A tt o rn e y James Rob i n s o n . E s q., Co un s e l for De f en d ant S h aun E dw ard Ki mmel
. D e f e n d ant D. 0

. C. IIK Y7 0 1 5 , Un it

/ S id e : J/£3 , S C I Al bion , 1074 5 R ou l e 1 8 , A lbi o n , PA 1 6475 -00 02 Pam e l a N ei d e rh e i sc r . Es q .. Co urt A d mini strat o r's O ffice C lerk of Co urt s D ate