J-S32002-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

RAYMONT WALKER, 

 Appellant No. 2019 WDA 2013 

Appeal from the Order Entered November 25, 2013 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0006204-2007 

BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ. 

MEMORANDUM BY SHOGAN, J.: FILED JULY 24, 2015

 Appellant, Raymont Walker, appeals from the November 25, 2013 

order denying his petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. After careful review, we affirm. 

 We previously summarized the facts of the crime and partial 

procedural history in our disposition of Appellant’s direct appeal, as follows: 

Kendall Dorsey (“Dorsey”) testified that on 

December 23, 2006, while sitting on the front porch

with his friend, Kevin Harrison (“Harrison”), he saw 

co-defendant Terrill Hicks (“Hicks”) shooting at him 

and at Harrison. Dorsey saw [Appellant], who was 

fifteen-years old, standing with Hicks. Dorsey 

scurried into the house and avoided injury, but 

Harrison was shot and killed shortly thereafter. 

 Dorsey testified that a few days earlier, he was 

at his friend John McDonald’s (“McDonald”) house. 

He heard a knock on the door. Another friend, 

Michael Harris (“Harris”), answered the door. 
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Immediately, Hicks attempted to pull Harris out of 

the house. The attempt was unsuccessful, as Harris

was able to close the door. Dorsey testified that he 

went upstairs, looked out a window and observed 

[Appellant] and Hicks in the street holding pistols. 

 Dorsey testified that he encountered Hicks the 

following day, the day before the shooting. Hicks 

said that he had been robbed, and that he thought 

that Dorsey, Harris and Harrison did it. Dorsey said 

he did not rob Hicks. 

 The next day, the day of the murder, Dorsey 

testified that Hicks and [Appellant] drove up to 

Dorsey and Harrison, while they were walking a dog. 

Hicks and [Appellant] exited the car, and [Appellant] 

said, “Where is Mike Harris at?” Dorsey observed 

that both Hicks and [Appellant] had weapons. 

Dorsey and Harrison lied, denying that they knew 

Harris’s location, and eventually, Hicks and 

[Appellant] got back into their car, a white Impala, 

and left. 

 Dorsey testified that he and Harrison 

immediately returned to Harrison’s house, where 

Harris was. Dorsey noticed the white Impala circling 

the house, the same car in which he had just seen 

Hicks and [Appellant]. He safely entered the 

residence, but eventually went outside to the front

porch with Harrison to smoke a cigarette. Dorsey 

told Harris not to join them on the porch because “he 

was looking for him.” Hicks and [Appellant] 

approached the house. Hicks fired approximately 

ten shots, killing Harrison. 

 McDonald testified similarly to the incident at 

his house. McDonald said that he encountered Hicks

at a gas station the day before Hicks came to his 

house. McDonald said Hicks was upset because he 

had been robbed. Hicks did not know who had 

robbed him. 

 McDonald said that, on the following day, Hicks 

attempted to forcibly remove Harris from McDonald’s
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home when Harris answered the door. The day 

after, Hicks and [Appellant] came to his house again. 

By that point, Hicks had become convinced that 

Harris, Harrison and a third individual nicknamed 

“Dee” had robbed him. Hicks told McDonald that he 

was looking for the people that he thought had 

robbed him, and if Hicks found them, either they 

would get hurt or someone would die. [Appellant] 

added that what the robbers had done “wasn’t cool” 

and that he “was going to ride with Hicks,” his best 

friend. McDonald, an army sergeant with eight years 

of military experience, recognized the gun Hicks was 

carrying as a “Glock 45.” 

Trial Court Opinion, 1/3/11, at 2–5. Harrison, who was shot 

three times, died from a gunshot wound to his head.

 After his arrest, [Appellant] filed a Motion to transfer the 

matter from the common pleas court to the juvenile court, and a 

Petition for Habeas Corpus—Petition to Quash the Information, 

which the trial court denied. At the jury trial of [Appellant] and 

his co-defendant, Hicks, the trial court granted [Appellant’s] 

Motion for judgment of acquittal of the charge of second-degree 

murder. Ultimately, the jury convicted [Appellant of one count 

each of first-degree murder, criminal attempt (homicide), 

possession of a firearm by a minor, criminal conspiracy, and two 

counts of aggravated assault].1

1 The jury also convicted Hicks of similar charges. 

 [Appellant] filed a “Post-Sentence Motion”, but filed the 

Motion prior to sentencing. [Appellant’s] Motion challenged the 

weight and sufficiency of the evidence. Before ruling on 

[Appellant’s] Motion, the trial court sentenced [Appellant]. For 

his conviction of first-degree murder, the trial court sentenced 

[Appellant] to life in prison. For his conviction of criminal 

attempt (homicide), the trial court sentenced [Appellant] to a 

consecutive prison term of 10-20 years. For his conviction of 

aggravated assault, the trial court sentenced [Appellant] to a 

consecutive prison term of 30-60 months. The trial court 

imposed no further sentence for the remaining convictions. 

 The trial court granted [Appellant] leave to amend his 

“Post-Sentence Motion,” but [Appellant] filed no amended 
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motion. Thereafter, the trial court denied [Appellant’s] PostSentence Motion, after which Appellant filed [a] timely appeal 

and a court-ordered Concise Statement of matters complained of 

on appeal pursuant to Pa.R.A.P. 1925(b). 

Commonwealth v. Walker, 1667 WDA 2010, 48 A.3d 490 (Pa. Super. 

2012) (unpublished memorandum at 1–4) (citations to the record omitted). 

 This Court affirmed the judgment of sentence on April 30, 2012. 

Walker, 1667 WDA 2010 (unpublished memorandum at *19). Appellant 

filed a pro se PCRA petition on July 30, 2012. The PCRA court appointed 

counsel, who filed an amended petition on January 7, 2013. The PCRA court 

held a hearing on May 31, 2013. Following the court’s notice of its intent to 

dismiss the PCRA petition, Appellant filed a response, a petition to stay, and 

a request to amend. The PCRA court denied the petition to stay, motion to 

amend, and the petition for post-conviction relief on November 25, 2013. 

Appellant filed a notice of appeal to this Court on December 20, 2013. Both 

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

 Appellant raises the following issues on appeal: 

I. Did the lower court err when it denied Raymont Walker’s 

PCRA petition, as he currently serves a sentence the 

Supreme Court of the United States deemed 

unconstitutionally cruel and unusual, and whose 

prohibition must be applied retroactively? 

II. Did the lower court err when it denied Raymont Walker’s 

PCRA petition, as he received constitutionally 

impermissible ineffective assistance of cou[n]sel? 

Appellant’s Brief at 4 (full capitalization omitted). 
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 When reviewing the propriety of an order granting or denying PCRA 

relief, this Court is limited to determining whether the evidence of record 

supports the conclusions of the PCRA court and whether the ruling is free of 

legal error. Commonwealth v. Perez, 103 A.3d 344 (Pa. Super. 2014). 

We grant great deference to the PCRA court’s findings that are supported in 

the record, Commonwealth v. Rachak, 62 A.3d 389 (Pa. Super. 2012), 

and will not disturb them unless they have no support in the certified record. 

Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014), appeal 

denied, 95 A.3d 277 (Pa. 2014). 

 Appellant’s first issue poses a purely legal question; thus, our review 

of the PCRA court’s determination in that regard is plenary and de novo. 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “The scope of 

review is limited to the findings of the PCRA court and the evidence of 

record, viewed in the light most favorable to the prevailing party at the trial 

level.” Id. 

 Appellant argues that he is entitled to a new trial based upon Miller v. 

Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012). He acknowledges that our 

Supreme Court determined that the holding in Miller does not apply 

retroactively to an inmate, such as Appellant, convicted as a juvenile, who is 

serving a sentence of life imprisonment without the possibility of parole and 

who has exhausted his direct appeal rights and is proceeding under the 

PCRA. Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert. 
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denied, ___ U.S. ___, 134 S.Ct. 2724 (2014). He asserts that the 

Pennsylvania Supreme Court was “misguided,” its decision was “erroneous,” 

and the High Court “simply erred in determining the Miller Rule is 

nonretroactive under the current standards.” Appellant’s Brief at 24, 28. 

Thus, Appellant argues that Cunningham “must be overturned.” Id. at 29. 

 Relying upon our Supreme Court’s decision in Cunningham, the PCRA 

court rejected Appellant’s claim that Miller does not provide him with relief 

and dismissed his claim as without merit. PCRA Court Opinion, 10/24/14, at 

5. We agree. 

 “This Court is bound by existing precedent under the doctrine of stare 

decisis and continues to follow controlling precedent as long as the decision 

has not been overturned by our Supreme Court.” Commonwealth v. 

Reed, 107 A.3d 137, 143 (Pa. Super. 2014) (citing Commonwealth v. 

Slocum, 86 A.3d 272, 278 n.9 (Pa. Super. 2014)). Indeed, the Reed Court, 

while acknowledging that “different courts have reached substantially 

differing conclusions on the retroactive application of Miller,” stated that 

“this does not alter our analysis of the state of the law in the Commonwealth 

of Pennsylvania.” Reed, 107 A.3d at 143. Our Supreme Court has noted 

that the doctrine of stare decisis “promotes the evenhanded, predictable, 

and consistent development of legal principles, fosters reliance on judicial 

decisions, and contributes to the actual and perceived integrity of the judicial 
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process.” Pennsylvania State Association of County Commissioners v. 

Commonwealth, 52 A.3d 1213, 1230 (Pa. 2012). 

 Moreover, it goes without saying that this Court may not overrule our 

Supreme Court. See, e.g., Fiore v. White, 757 A.2d 842, 847 (Pa. 2000) 

(a court decision remains law unless it is reversed by a court of greater 

jurisdiction or overruled by a court of equal jurisdiction). “It is not the 

prerogative of an intermediate appellate court to enunciate new precepts of 

law or to expand existing legal doctrines. Such is a province reserved to the 

Supreme Court.” Peters v. Nat'l Interstate Ins. Co., 108 A.3d 38, 47 

n.12 (Pa. Super. 2014); Commonweath v. Boyd, 941 A.2d 1, 7 (Pa. 

Super. 2007). As we have stated: 

[T]his court has a “duty and obligation to follow the decisional 

law of the Supreme Court of Pennsylvania.” Commonwealth v. 

Shaffer, 557 Pa. 453, 734 A.2d 840, 844 n.6 (1999). “The 

primary role of the Superior Court is to apply existing law 

to the cases that come before us. It is not our function to 

attempt reversing viable Supreme Court rulings....”

Commonwealth v. Foley, 38 A.3d 882, 892–893 (Pa. Super. 2012) 

(emphasis added). Thus, in reliance upon the applicable precedent of our 

Supreme Court, we reject Appellant’s claim. 

 Appellant’s second issue is actually three separate claims of ineffective 

assistance of counsel. A PCRA petitioner alleging ineffectiveness of his 

counsel will be granted relief only if he is able to prove that, “in the 

circumstances of [his] particular case,” the truth-determining process was 

undermined to the extent “that no reliable adjudication of guilt or innocence 
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could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). The law presumes 

that counsel was effective, and it is the petitioner’s burden to prove the 

contrary. Perez, 103 A.3d at 348. To prevail on a claim of ineffective 

assistance of counsel, a PCRA petitioner must plead and prove by a 

preponderance of the evidence that: (1) the underlying legal claim has 

arguable merit; (2) counsel had no reasonable basis for acting or failing to 

act; and (3) the petitioner suffered resulting prejudice. Commonwealth v. 

Baumhammers, 92 A.3d 708, 719 (Pa. 2014) (citing Commonwealth v. 

Pierce, 527 A.2d 973, 975–976 (Pa. 1987)). A petitioner must prove all 

three factors of the Pierce test or the claim fails. Commonwealth v. 

Busanet, 54 A.3d 35, 45 (Pa. 2012). In addition, on appeal, a petitioner 

must adequately discuss all three factors of the Pierce test, or the appellate 

court will reject the claim. Commonwealth v. Reyes-Rodriguez, 111 

A.3d 775, 780 (Pa. Super. 2015) (citing Commonwealth v. Fears, 86 A.3d 

795, 804 (Pa. 2014)). Moreover: 

to satisfy the prejudice prong, it must be demonstrated that, 

absent counsel’s conduct, there is a reasonable probability that 

the outcome of the proceedings would have been different. 

Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. 

Super. 2014). If it has not been demonstrated that counsel’s act 

or omission adversely affected the outcome of the proceedings, 

the claim may be dismissed on that basis alone, and the court 

need not first decide whether the first and second prongs have 

been met. 

Perez, 103 A.3d at 348. 
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 Appellant first contends that trial counsel was ineffective for 

withdrawing a motion in limine, which he suggests precluded review of the 

issue that there were no eyewitnesses in this case. Appellant’s Brief at 31. 

Originally, at the pretrial stage, this case was assigned to a different judge 

than the trial judge. N.T. (PCRA), 5/21/13, at 12. Appellant had filed a 

motion in limine on February 3, 2010, in which he sought to preclude the 

Commonwealth from presenting identification testimony of eyewitness 

Kendall Dorsey. Motion in Limine, 2/3/10; Appellant’s Brief at 31–32. In 

addressing the motion at a hearing on February 4, 2010, the pretrial court 

asked defense counsel, “Is there case law that says the District Attorney’s 

Office is not allowed to supplement on a habeas on a preliminary hearing?” 

N.T., 2/4/10, at 4. When defense counsel responded in the negative, the 

pretrial court denied the motion. Id. Defense counsel advised the pretrial 

court that he wanted to address the motion before the trial judge who would 

be assigned to the case, so he advised, “Your Honor, I will withdraw my 

motion in limine before this court—. . . and file it before the new trial judge.” 

Id. at 5. 

 Upon raising the issue of the denial of the motion in his direct appeal, 

this Court held the issue to be waived. N.T. (PCRA), 5/31/13, at 14. This 

Court noted that Appellant failed to direct our attention to the place in the 

record where he renewed the motion to the trial court; as there was “no 

ruling before this Court for review,” we determined that Appellant was 
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entitled to no relief. Walker, 1667 WDA 2010 (unpublished memorandum 

at *15). 

 At the PCRA hearing, trial counsel testified that he “thought” he 

presented the motion to the new trial court but stated, “I really can’t 

remember.” N.T. (PCRA), 5/31/13, at 13. Appellant argued in the amended 

PCRA petition and asserts on appeal that the failure to present the motion in 

limine to the trial court constituted ineffective assistance of counsel. 

Appellant’s Brief at 33. The PCRA court rejected the claim stating, “Having 

failed in his first attempt at a motion in limine, and presenting no evidence 

as to why the same motion would be granted before this [c]ourt, this [c]ourt 

cannot find counsel ineffective for failing to raise a meritless claim.” PCRA 

Court Opinion, 10/24/14, at 8. 

 We agree with the Commonwealth that Appellant cannot demonstrate 

prejudice on this issue. Here, the jury convicted Appellant on sufficient 

evidence of record. Indeed, this Court determined on direct appeal that the 

evidence at trial was sufficient to sustain all of Appellant’s convictions. 

Walker, 1667 WDA 2010 (unpublished memorandum at *5–6). The fact 

that the Commonwealth did not present eyewitness identification testimony 

relating to Appellant at the preliminary hearing is of no moment. See 

Commonwealth v. Lee, 662 A.2d 645, 650 (Pa. 1995) (Commonwealth’s 

failure to establish prima facie case at preliminary hearing was immaterial 
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where it subsequently met burden of proof at trial). Our Supreme Court has 

stated: 

We need not consider whether or to what extent the pre-trial 

evidence here was sufficient . . . . Any claims of inadequacy 

Appellant alleges with respect to pre-trial matters have been 

rendered moot by the “subsequent independent judicial 

judgment” confirming the existence of the aggravating 

circumstance in this case. Commonwealth v. Ballard, 501 Pa. 

230, 460 A.2d 1091, 1092 (1983). See also Commonwealth v. 

Lee, 541 Pa. 260, 662 A.2d 645, 650 (1995) (deeming moot 

defendant’s claims that preliminary hearing judge should have 

recused himself, as well as the claim that the evidence failed to 

establish probable cause, where defendant ultimately was found 

guilty by a jury); Commonwealth v. McCullough, 501 Pa. 423, 

461 A.2d 1229, 1231 (1983) (concluding that Commonwealth’s 

failure to establish prima facie case at preliminary hearing was 

immaterial where Commonwealth subsequently met its burden 

of proof beyond a reasonable doubt at trial). Because a jury 

determined that Appellant killed Mr. Sementelli while in the 

perpetration of a felony, Appellant is not entitled to relief on her 

[pretrial] claim . . . . 

Commonwealth v. Walter, 966 A.2d 560, 565 (Pa. 2009). We conclude 

the issue lacks merit. 

 Moreover, Appellant cannot now show prejudice from the failure to 

present the motion in limine at trial. In affirming the judgment of sentence, 

we relied on the trial court opinion and rejected a claim challenging the 

sufficiency of the evidence. Walker, 1667 WDA 2010 (unpublished 

memorandum at *8). In that opinion, the trial court referenced eyewitness 

testimony, presumably that of Kendall Dorsey, who was the subject of the 

motion in limine and who placed Appellant with the shooter at the time of 

the murder. Trial Court Opinion, 1/3/11, at 3. We credited the trial court’s 
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opinion, in which the trial court stated that the witness’s “statements 

regarding the shooting were corroborated by other witnesses and physical 

evidence.” Id. at 6. Thus, if the motion in limine in question would have 

been offered at trial, and if it had been granted, the trial court stated that 

the witness’s testimony regarding the shooting was corroborated by other 

witnesses and evidence, id., and we affirmed this finding on direct appeal. 

Walker, 1667 WDA 2010 (unpublished memorandum at *8). As counsel 

cannot show that any alleged ineffectiveness of counsel in failing to re-offer 

the motion prejudiced Appellant, the claim of ineffectiveness must be 

rejected. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). 

 Appellant’s second claim of trial counsel ineffectiveness underscores 

counsel’s failure to file a notice of alibi and failure to call Appellant’s mother, 

Pearl Price, as an alibi witness at trial. Appellant’s Brief at 34. This issue 

was discussed at length at the PCRA hearing. N.T. (PCRA), 5/31/13, at 24–

27. At that hearing, trial counsel acknowledged that he spoke to Ms. Price 

on multiple occasions, that she was present at trial, and that she made a 

statement that Appellant was present with her around the time of the 

murder. Id. at 24–25. Trial counsel testified as follows: 

We investigated this case for probably I think two, maybe three 

years before it went to trial, every time I spoke with Miss Price it 

was a different story: We were at the mall. We were at a 

Christmas party. We were at another party. We were at a 

church. Holy Family or something to that extent. 

 And in a trial, especially when identification is the sole 

issue, the crux of the case, the last thing you want is an alibi 
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witness to come up here who is shaky in her recollection as to 

what the events were. 

 I spoke to [Appellant] numerous times . . . . I said I want 

you to be sure that this is what you want to do. He said, no, I 

don’t want to call her because I don’t know what she is going to 

say. 

Id. at 26–27. 

 The PCRA court rejected the issue based on trial counsel’s testimony. 

PCRA Court Opinion, 10/24/14, at 6. The court stated: 

Counsel noted inconsistencies in both the prospective witness’[s] 

testimony and her willingness to testify. Counsel did not believe 

she would be an effective witness and that she would not hold 

up well to cross-examination. As such, counsel made a reasoned 

decision based on his strategy. 

Id. As trial counsel testified to a reasonable basis for not calling Ms. Price as 

a witness, he cannot be found to be ineffective. Commonwealth v. Reed, 

42 A.3d 314, 324 (Pa. Super. 2012), appeal denied, ___ A.3d ___ (Pa. 

2015) (“If a reasonable basis exists for the particular course, the inquiry 

ends and counsel’s performance is deemed constitutionally effective.”). 

Thus, we reject this contention. 

 Lastly, Appellant maintains that trial counsel was ineffective for failing 

to request a jury instruction pursuant to Commonwealth v. Kloiber, 106 

A.2d 820 (Pa. 1954). Appellant’s Brief at 39. The PCRA court rejected the 

claim, holding: 

In Commonwealth v. Kloiber, the Pennsylvania Supreme Court 

stated: 
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Where the witness is not in a position to clearly 

observe the assailant, or he is not positive as to 

identification, or his positive statements as to 

identity are weakened by qualifications or by failure 

to identify defendant on one or more prior occasions, 

the accuracy of the identification is so doubtful that 

the Court should warn the jury that the testimony as 

to identity must also be received with caution. 

106 A.2d 820 (Pa. 1954). The instruction is not mandated if the 

identification by the witness is unequivocal, consistent, and 

independently based. Commonwealth v. Johnson, 615 A.2d 

1322, 1336 (Pa. Super. 1992). 

 Appellant has failed to establish that a Kloiber instruction 

was warranted. The witness failed to waiver in his testimony 

regarding identification, despite the best efforts of counsel on 

cross-examination. The testimony of record established that the 

witness was able to clearly observe Appellant and his codefendant. As a Kloiber jury instruction was not indicated by the 

facts of this case, it was not ineffective assistance of counsel not 

to request such a charge. 

PCRA Court Opinion, 10/24/14, at 7. 

 A Kloiber charge instructs the jury that an eyewitness’s identification 

should be viewed with caution where the eyewitness: (1) did not have an 

opportunity to clearly view the defendant; (2) equivocated on the 

identification of the defendant; or (3) had a problem making an identification 

in the past. Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa. Super. 

2008). None of those circumstances existed in this case. 

 Appellant’s claim is based on his assertion that trial counsel failed to 

request that the jury be instructed to receive Kendall Dorsey’s identification 

testimony with caution, pursuant to Kloiber. Appellant’s Brief at 39. At 

trial, Kendall Dorsey testified that on the evening of the shootings, he was 
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sitting on the porch of victim Kevin Harrison’s house. N.T. (Trial), 4/27/10–

5/3/10, at 104–105. Mr. Dorsey observed Terrill Hicks walking down Hays 

Street, fifty feet away. Id. at 107. After the first shot was fired, Mr. Dorsey 

looked toward the direction it came from—the alleyway across the street 

between the residences at 311 and 309 W. 13th Avenue—and saw Mr. Hicks 

firing a gun at Mr. Harrison’s house with Appellant standing beside him. Id. 

at 108–109, 164–166, 175, 179. The area where Mr. Hicks and Appellant 

stood was illuminated by Christmas lights from the surrounding residences, 

and it was a clear, warm night for that time of year. Id. at 174, 179, 285–

286, 299. Additionally, Allegheny County Police Detective Thomas De Felice 

testified that Mr. Harrison and Mr. Dorsey had an unobstructed view of the 

shooter. Id. at 327–328, 332. This evidence clearly was sufficient to 

establish that Mr. Dorsey had the opportunity to observe Appellant. 

 Under these circumstances, Appellant was not entitled to a Kloiber

instruction. Identification testimony need not be received with caution 

where it is positive, unshaken, and not weakened by a prior failure to 

identify. Commonwealth v. Upshur, 764 A.2d 69, 77 (Pa. Super. 2000). 

Thus, any such request would have been denied. As trial counsel is not 

ineffective for failing to assert a meritless claim, Commonwealth v. Roney, 

79 A.3d 595, 604 (Pa. 2013), the PCRA Court properly dismissed this 

contention. 

 Order affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/24/2015