J-S29035-21
2021 PA Super 222
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYRELL BISHOP, :
:
Appellant : No. 106 EDA 2020
Appeal from the PCRA Order Entered December 11, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001140-2014
BEFORE: PANELLA, P.J., KUNSELMAN, J. and STEVENS, P.J.E.*
OPINION BY: STEVENS, P.J.E.: FILED NOVEMBER 15, 2021
Appellant Tyrell Bishop appeals from the December 11, 2019, Order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously provided the following overview of this case:
On November 9, 2013, at around 10:50 p.m., Kyree Silver
was in the area of 10th and Norris Streets in Philadelphia, where
he had a verbal altercation with an unidentified man. Appellant
was present at that altercation. As Silver and his friend, Nasir,
began to walk down the street, Nasir told Silver, “Hey, bro, you
are being followed.” The man following them was wearing a
white thermal shirt, khaki pants, and Timberland boots.
Appellant then yelled to Silver, and Silver turned around and
walked into the middle of the street, where Appellant began
shooting at Silver. At first, Silver stood in shock, but, after the
second shot, he began to run towards an intersection, at which
time he was struck by a bullet. Silver nevertheless was able to
pick himself up and run two more blocks.
*Former Justice specially assigned to the Superior Court.
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Temple University Police Officer Robert Acosta, who had
received a radio call reporting a shooting in the area, found
Silver and placed him into another officer’s patrol car to be
transported for medical attention. Silver was taken to Temple
University Hospital, where “it was determined that [he] had been
shot in his left side, and that the bullet hit his spine.”
Officer Acosta then returned to the scene of the crime,
where he “noticed someone” inside a building, through an open
door, “who was sitting on a chair fitting the doer’s clothing,”
which had been described in the radio call as “tan boots with
light color shirt, possibly a thermal.” The person then closed the
door. Officer Acosta later testified that he “really can't say”
whether the person he saw was Appellant, despite being able to
recognize Appellant from “see[ing] him around the area.”
On November 14, 2013, Silver identified Appellant as the
shooter after viewing a photo array. On December 28, 2013,
Philadelphia Police executed a search warrant on Appellant’s
home and recovered “a tan pair of khaki pants, a tan pair of
Timberland boots, and mail in the name of Appellant.” They
arrested Appellant that same day.
Appellant was indicted for the shooting on January 27,
2014, and a jury trial ultimately was scheduled for December
2014. During that interval, Silver received an unsigned
handwritten letter addressed to him at his home. The letter was
postmarked April 2, 2014, and urged Silver not to testify at trial
and to lie if he was asked if he recognized Appellant during a
line-up. The Commonwealth later produced transcripts of taped
conversations by Appellant with friends and family members in
which he appeared to discuss trying to dissuade Silver from
testifying.
Prior to trial, the parties engaged in motion practice
regarding the Commonwealth’s plan to introduce information
that it contended was from Appellant’s social media accounts.
On November 18, 2014, the Commonwealth provided Appellant
with a numbered exhibit packet. [The packet was] described by
the Commonwealth as screenshots from a Facebook account
registered under the name “Traplife Took.” The Commonwealth
contended that “Traplife Took” was a nickname used by
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Appellant and that the exhibits were from Appellant's Facebook
account.…
The Facebook messages … contained a number of
photographs of Appellant, including one showing him a few
blocks from the location of the shooting. [One] contained a
message stating: “Neighborhood dangerous,, whole lotta
shootas,,,, had to keep a Mac n I ain't talkin bout computers,,”
(punctuation in original). Another stated, “Gotta 40 n a 9 at da
SAME DAMN TIME.. # TEAM BIZZY.. I'm on ma militant shit ...”
(capitalization and punctuation in original). [A third] stated:
“Death before dishonor,,,, don't even bother.. Take me back to
prison I don't kno shit, ya honor..... # snitches get stitches... N I
don't like stitches” (punctuation in original). The posting dates
of the messages were in May or June of 2012 (about 1 ½ years
before the shooting of Silver).
On December 12, 2014, Appellant filed a pre-trial motion
in limine to prohibit the introduction of any social media
evidence, arguing that Appellant's “social media accounts are
irrelevant and inadmissible.” Appellant stated that “[t]he
entirety of the Facebook and Twitter posts are the equivalent of
braggadocio and rap lyrics—what Tipper Gore feared in the early
90s.” The trial court denied the Motion in Limine and allowed
the Commonwealth to introduce the social media evidence at
trial.
During trial, Silver testified that he saw Appellant follow
him and heard Appellant “yell something out.” Throughout his
testimony, Silver identified Appellant as the individual who shot
him, and Silver’s testimony was corroborated by a surveillance
video that recorded a portion of the incident. During his
testimony, Silver identified himself in the video. Also during the
trial, Appellant stipulated that he had a prior felony conviction
that made it unlawful for him to possess a firearm and that he
did not have a license to carry a firearm.
On December 22, 2014, a jury found Appellant not guilty
of attempted murder and guilty of the remaining charges
enumerated above. On March 9, 2015, Appellant was sentenced
to an aggregate term of eighteen to thirty-six years’
incarceration.
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On March 18, 2015, Appellant filed a motion for
reconsideration of his sentence, which the trial court denied on
July 17, 2015. On July 27, 2015, Appellant filed a notice of
appeal to this Court.
Commonwealth v. Bishop, 2017 WL 3225850, at *1–3 (Pa.Super. 2017)
(unpublished memorandum) (brackets, footnotes, and record citations
omitted). This Court affirmed his judgment of sentence, and Appellant did
not pursue his appeal in the Pennsylvania Supreme Court.
Appellant timely filed a PCRA petition, pro se, on February 15, 2018.
Following appointment of counsel, Appellant filed an amended PCRA petition
on November 20, 2018, and the Commonwealth filed a response on
September 9, 2019, urging the PCRA court to dismiss the petition. On
October 23, 2019, the PCRA court issued notice of its intent to dismiss the
petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant did not
file a response before the PCRA court.1 On December 11, 2019, the PCRA
court dismissed Appellant’s petition.
Appellant timely filed the instant notice of appeal.2 Thereafter,
Appellant filed a concise statement of matters complained of on appeal
1Appellant instead prematurely filed a notice of appeal with this Court on
November 4, 2019, which this Court docketed at 3298 EDA 2019.
2 Following Appellant’s filing of a petition to proceed pro se, this Court
remanded the appeal at 3298 EDA 2019 for the PCRA court to conduct a
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
On March 11, 2020, this Court dismissed the appeal at 3298 EDA 2019 as
duplicative of the instant appeal. On July 13, 2020, this Court ordered the
(Footnote Continued Next Page)
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pursuant to Pa.R.A.P. 1925(b), and the PCRA court filed an Opinion pursuant
to Pa.R.A.P. 1925(a).
On appeal, Appellant asserts what purports to be one issue, but is
actually six (verbatim except re-ordered for dispositional purposes):
Trial counsel ineffective because he failed to: 1) suppress
identification where the identification procedure was overly
suggestive and in violation of Appellant’s Due Process rights; 2)
protect Appellant’s Sixth Amendment right to confront
Commonwealth witnesses’ identification information leading to
Appellant’s arrest and conviction; 3) call alibi witnesses; 4)
impeach a Commonwealth witness with prior arrests and to
object and/or impeach a Commonwealth witness after the
Commonwealth elicited false testimony from the witness; 5) file
a post-verdict motion that the verdict was against the weight of
the evidence; and 6) properly investigate and consult with
Appellant to prepare an adequate defense.
Appellant’s Brief at 2.
We review these issues mindful of our well-established standard of
review:
This Court's standard of review regarding an order denying a
petition under the PCRA is whether the determination of the
PCRA court is supported by the evidence of record and is free of
legal error. The PCRA court's findings will not be disturbed unless
there is no support for the findings in the certified record.
Commonwealth v. Hand, 252 A.3d 1159, 1165 (Pa.Super. 2021). “The
PCRA court’s factual determinations are entitled to deference, but its legal
(Footnote Continued) _______________________
PCRA court to conduct a Grazier hearing in the instant appeal. Before such
hearing occurred, Appellant elected to proceed with retained counsel, who
entered an appearance in this Court on September 15, 2020.
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determinations are subject to our plenary review.” Commonwealth v.
Vinson, 249 A.3d 1197, 1203 (Pa. Super. 2021). The PCRA court’s decision
to deny a request for an evidentiary hearing is within the PCRA court’s
discretion and we will not overturn it absent an abuse of that discretion.
Hand,
252 A.3d at 1166.
Appellant’s issues on appeal center around his allegation that his trial
counsel rendered ineffective assistance. “To obtain relief under the PCRA
premised on a claim that counsel was ineffective, a petitioner must establish
by a preponderance of the evidence that counsel’s ineffectiveness so
undermined the truth determining process that no reliable adjudication of
guilt or innocence could have taken place.” Commonwealth v. Webb, 236
A.3d 1170, 1176 (Pa. Super. 2020); see also 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is presumed to have been effective. In order to
overcome that presumption and prevail on a claim of
ineffectiveness, Appellant must establish that: (1) the underlying
claim has arguable merit; (2) counsel had no reasonable basis
for his conduct; and (3) he was prejudiced by counsel's
ineffectiveness, i.e. there is a reasonable probability that
because of the act or omission in question, the outcome of the
proceeding would have been different.
Hand, 252 A.3d at 1166 (citations omitted). Failure to satisfy any one of
the three prongs of the test will result in failure of the entire claim. Webb,
236 A.3d at 1176.
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Failure to File a Motion to Suppress
In his first issue, Appellant argues trial counsel was ineffective for
failing to file a motion to suppress the victim’s pre-trial identification of him.
Appellant’s Brief at 14. Police showed Silver a photographic array with eight
photographs which contained photographs of Appellant and seven other
individuals. Appellant claims this photographic array was unduly suggestive,
unreliable, and violative of due process. Id. Specifically, Appellant contends
the police should have followed the double-blind procedure he asserts is the
department’s normal procedure.3 Id. at 15.
That is, Appellant argues that a police officer who was not involved in
the investigation should have conducted the photographic array, not
Detective Michael Rocks, who was the investigating detective. Id. at 15-16.
He also contends police should not have told the victim that the suspected
perpetrator was one of the individuals in the photographic array. Id. at 16.
In addition to his argument regarding the double-blind procedure,
Appellant urges us to find significant the existence of a single image of him
printed two minutes after the photographic array was printed. Id.
Appellant implies that the existence of the image in the police department’s
records indicate the police showed Silver his photograph in the photographic
3
Appellant does not specify when the department purportedly adopted this
procedure.
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array followed by a separate stand-alone photograph to influence the
victim’s selection. Id.
In considering whether Appellant’s arguments have merit, we bear in
mind the following:
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. 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. Identification evidence will not be
suppressed unless the facts demonstrate that the identification
procedure was so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.
Photographs used in line-ups are not unduly suggestive if the
suspect’s picture does not stand out more than the others, and
the people depicted all exhibit similar facial characteristics.
Commonwealth v. Mbewe, 203 A.3d 983, 986-87 (Pa.Super. 2019)
(citations and quotation marks omitted).
Upon review of Appellant’s original and amended PCRA petitions, we
determine that Appellant has waived his argument concerning the double-
blind procedure. In his PCRA filings, Appellant argued the procedure was
suggestive because the victim had described the perpetrator as having a
beard, Appellant did not have a beard, and no one in the photographic array
had a beard.4 Memorandum of Law in Support of Amended PCRA Petition,
4
Appellant abandoned this argument on appeal by not including it in his
brief. However, even if we were to construe the due process argument in
Appellant’s brief to include this claim, it would fail. Due process requires
police to assemble an array of photographs of individuals who resemble the
(Footnote Continued Next Page)
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11/20/2018, at 19. He also included an argument concerning the
significance of the single photograph in his file. Id.
However, there is no indication in the certified record that he
presented his argument regarding the double-blind procedure to the PCRA
court for it to consider it in the first instance. Generally, a litigant may not
present arguments to this Court which it did not present to the lower court.
See Pa.R.A.P. 302(a).
Appellant’s filing of a petition arguing trial counsel was ineffective for
not filing a motion to suppress the photographic array is not enough to
preserve the claim because he did not give the PCRA court the opportunity
to consider the same argument he now presents on appeal. See
Commonwealth v. Rush, 959 A.2d 945, 948–49 (Pa.Super. 2008) (“[An]
appellant cannot support … claims in this Court by advancing legal
arguments different than the ones that were made when the claims were
preserved.”).
Even if we were to construe Appellant’s argument broadly and find it
preserved, his bald assertion that the “Philadelphia Police Department
detectives have been utilizing [the double-blind procedure] for years” does
not establish whether the procedure was used at the time of the
(Footnote Continued) _______________________
suspect, not the description provided by the victim or eyewitness. Mbewe,
203 A.3d at 986-87.
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photographic array in this case or that a photographic array without use of
the procedure offends due process. Appellant’s Brief at 15-16.
Furthermore, his commentary upon quotations from the record
misconstrue the record in context. Silver merely stated that the exhibit
shown to him at trial was “the paper that detective showed me with the
people who were suspected to do the shooting at the time,” not that
Detective Rocks told him anything at the time of the array that was unduly
suggestive. N.T., 12/17/2014, at 42. Furthermore, Appellant’s assertion
that Detective Rocks told the victim that the array was made up of one
suspect and seven filler photographs is incorrect based on the record.
Detective Rocks used the term “filler” when describing the procedure of
assembling the record to include seven others who resembled the suspect,
but he never testified that he used that term in front of the victim. N.T.,
12/18/2014, at 141.
As for the single photograph, Appellant insists in a one-sentence
argument that the presence of the single photograph in the file printed two
minutes after the photo array “increase[ed] the probability of
misidentification by the victim and suggest[ed] that the Appellant was the
shooter.” Appellant’s Brief 16.
To the extent Appellant is arguing the presence of the photograph in
the file ipso facto indicates that the police showed it to Silver in a suggestive
fashion to persuade Silver to select Appellant as the perpetrator, we agree
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with the PCRA court that such argument is speculative. See PCRA Court
Opinion, 4/9/2021, at 8-9. Appellant does not point to any evidence or
testimony in the record supporting his theory. Therefore, this argument
fails.
Based on the foregoing, we discern no error or abuse of discretion in
the PCRA court’s conclusion that Appellant failed to establish merit to his
suppression argument. Accordingly, Appellant’s ineffective assistance of
counsel claim likewise has no merit, and the PCRA court properly dismissed
this claim without a hearing. See Commonwealth v. Epps, 240 A.3d 640,
645 (Pa.Super. 2020) (“Counsel cannot be found ineffective for failing to
raise a baseless or meritless claim.”).
Failure to Present Police Officer and Protect Right to Confrontation
Appellant’s next argument is centered on his contention that trial
counsel should have called police officer Joseph Goodwin to the stand, filed a
motion to suppress his testimony, or developed at trial why Appellant was
investigated as a suspect. Appellant’s Brief at 17.
Detective Rocks began investigating Appellant as a suspect after
speaking with Officer Goodwin and testified that he was contacted by Officer
Goodwin early in the investigation. He explained that “[b]ased on a
conversation I had with Police Officer Goodwin, I developed this defendant
as suspect in the shooting.” N.T., 12/28/2014, at 143. No further details
were provided as to the conversation. Appellant’s attorney lodged a hearsay
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objection, but the trial court overruled it because Detective Rocks did not
offer information as to the nature of the conversation. Id.
In his brief, Appellant contends that counsel should have presented
Officer Goodwin as a witness because he could have challenged whether his
arrest was based upon probable cause. Appellant’s Brief at 18. Appellant
further argues that he had “a constitutional right to confront Officer Goodwin
to explore the particulars regarding the source of the officer’s information.”
Appellant’s Brief at 17. He contends that Officer Goodwin’s conversation
with Detective Rocks was testimonial in nature pursuant to Crawford v.
Washington, 541 U.S. 36 (2004), and he had the right to cross-examine
Officer Goodwin about the conversation and determine why the police
developed him as a suspect. Appellant’s Brief at 19.
To the extent Appellant is basing his ineffectiveness claim on counsel’s
failure to present Officer Goodwin as a witness, we bear in mind the
following:
When raising a claim of ineffectiveness for the failure to
call a potential witness, a petitioner satisfies the performance
and prejudice requirements of the ineffective assistance of
counsel test by establishing that: (1) the witness existed; (2)
the witness was available to testify for the defense; (3) counsel
knew of, or should have known of, the existence of the witness;
(4) the witness was willing to testify for the defense; and (5) the
absence of the testimony of the witness was so prejudicial as to
have denied the defendant a fair trial.
Prejudice in this respect requires the petitioner to show
how the uncalled witnesses’ testimony would have been
beneficial under the circumstances of the case. Therefore, the
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petitioner’s burden is to show that testimony provided by the
uncalled witnesses would have been helpful to the defense.
Commonwealth v. Selenski, 228 A.3d 8, 16 (Pa.Super. 2020) (quotation
marks, citations, and brackets omitted).
In explaining its rejection of Appellant’s claim, the PCRA court noted
that Appellant “fails to set forth how the testimony of Officer Goodwin would
have helped in his defense[.]” PCRA Court Opinion, 4/9/2021, at 9. We
agree. Appellant has not established how he was prejudiced by counsel’s
failure to present and cross-examine Officer Goodwin, much less that Officer
Goodwin would have offered information that helped his defense.
Regarding Appellant’s vague Confrontation Clause argument, the case
he relies upon, Crawford, applies when the prosecution seeks to introduce a
testimonial out-of-court statement into evidence against a criminal
defendant. See generally Crawford, supra. Crawford is inapplicable
herein because the Commonwealth did not seek to introduce Officer
Goodwin’s statement at trial. Furthermore, police generated probable cause
for Appellant’s arrest when the victim identified him in the lineup and when
they located clothes in Appellant’s home matching the victim’s description of
the perpetrator’s attire. Thus, there is no arguable merit to Appellant’s
claim and the PCRA court properly dismissed this claim without a hearing.
See Epps,
240 A.3d at 645.
Failure to Present “Alibi” Witness
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Appellant argues that trial counsel was ineffective for failing to call
Shenae Graham as a witness.5 Appellant’s Brief at 20-21. Graham,
Appellant explains, was present during a verbal altercation between
Appellant and Officer Goodwin approximately three months prior to the
shooting. Graham was prepared to testify that Officer Goodwin told
Appellant “[h]e would put a case on him that would stick and that he will
make sure Appellant and his friend Sajjad Hall are put away for a long time”
and the “next thing that happens in the projects he will put it on him.” Id.
We agree with the PCRA court that Appellant failed to establish
prejudice by counsel’s failure to call Graham. As the PCRA court explained,
Here, the purported witness … was not an eyewitness to
the shooting. She cannot contradict the sworn identification
testimony of [Silver] who identified [A]ppellant by both his
appearance and the clothes he was wearing on the night of the
shooting. Further, Police Officer Robert Acosta testified that on
the night of the shooting, he observed someone matching
[Silver’s] description of the shooter hiding in a house near the
scene of the shooting wearing the same tan boots, tan pants and
light colored shirt that was heard over police radio. Officer
Acosta testified that this person, whom he was later able to
identify as [A]ppellant, slammed the door closed when he
observed the officer. Upon executing a search warrant at
[A]ppellant’s house, the tan Timberland boots and tan pants as
described by [Silver] as worn by his assailant were recovered.
Therefore, given the identification testimony of both
[Silver] and Officer Acosta, and the physical evidence,
[A]ppellant is unable to show that there was a reasonable
5 Although Appellant refers to Graham as an alibi witness, he offers no
argument that she could have provided an alibi for him on the night in
question.
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probability that he would have been found not guilty of any of
the charges, including aggravated assault, had Shenae Graham
testified on his behalf.
PCRA Court Opinion, 4/9/2021, at 11 (citations omitted).
We agree with the PCRA court’s analysis except for its reliance upon
Officer Acosta’s testimony. This Court noted in Appellant’s direct appeal that
Officer Acosta acknowledged during his testimony that he “‘really can’t say”
whether the person he saw was Appellant, despite being able to recognize
Appellant from ‘see[ing] him around the area.’” Bishop, 2017 WL 3225850,
at *1 (citations omitted).
However, Appellant has not explained how Graham’s testimony would
have changed the outcome at trial considering the victim’s identification of
Appellant and the matching clothes recovered from Appellant’s house.
Additionally, as we described on his direct appeal, Silver’s identification was
corroborated by a video recording of part of the altercation, and the
Commonwealth also introduced transcripts of recordings by Appellant
encouraging family and friends to prevent the Silver from testifying, which
indicated his consciousness of guilt. Bishop, supra at *7 (describing the
properly admitted evidence of guilt as “overwhelming”).
Because Appellant failed to establish prejudice, the PCRA court did not
err or abuse its discretion in dismissing Appellant’s claim relating to the
failure to call Graham. See Hand, 252 A.3d at 1166.
Failure to Impeach Silver
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Several months prior to trial, the victim, Silver, received Accelerated
Rehabilitation Disposition after being charged with forgery, theft by unlawful
taking, theft by deception, receiving stolen property, and executing
documents by deception. N.T., 12/17/2014, at 43-44, 73-77, 80-83. The
Commonwealth asked Silver about the disposition during direct examination
and Appellant’s trial counsel cross-examined Silver about it. Id.
On appeal, Appellant argues counsel failed to investigate Silver’s
crimes and properly impeach Silver regarding the crimes. Appellant’s Brief
at 21-22. He also contends counsel should have requested a jury instruction
on crimen falsi. Id.
According to Appellant, Silver “provided knowingly false testimony”
when Silver testified that after applying online for a warehouse trucking job,
he received and cashed a sign-on bonus check that unbeknownst to him was
fake. Appellant’s Brief at 21. Appellant attaches one page of what he
purports is a criminal complaint against Silver from the incident, which
states Silver attempted to cash a check in the name of Jacqueline Boyette.
Id. at 21, C-1.
Appellant did not present this criminal complaint to the PCRA court in
the first instance. Instead, he baldly argued Silver was being untruthful,
resulting in the PCRA court’s rejection of his claim. See PCRA Court Opinion,
4/9/2021, at 12 (“However, [A]ppellant fails to provide to this Court any
evidence that [Silver] was being untruthful.”). We cannot consider evidence
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that dehors the record or an argument that was not presented to the PCRA
court in the first instance. See Pa.R.A.P. 302(a); Rush, 959 A.2d at 949.
Likewise, Appellant has waived his argument that counsel was ineffective for
not requesting a jury instruction on crimen falsi as he presents this
argument for the first time on appeal.
Id.
Failure to Raise a Weight-of-the-Evidence Claim
Appellant argues trial counsel rendered ineffective assistance by failing
to file a post-trial motion raising a challenge to the weight of the evidence.
To support this claim, Appellant in essence reiterates two of his prior
ineffectiveness claims by asserting that the trial court would have granted
him a new trial if counsel had called Officer Goodwin as a witness to
determine why police developed Appellant as a suspect and if counsel had
filed a motion to suppress the allegedly suggestive photographic array.
Appellant’s Brief at 11-12. These arguments presuppose the success of
these claims, which we have already rejected.
Appellant’s remaining arguments discount Silver’s identification of him
because he claims Silver admitted to smoking marijuana prior to the
incident, and Silver did not identify Appellant until several days after the
incident. Id.
The PCRA court offered the following analysis of this claim:
At trial, Silver testified repeatedly that he saw Appellant
looking at him and his friend Nasir as they were walking away
and that he heard Appellant yell at them about engaging in a
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fight. He further testified that he looked up and saw Appellant
pull out a gun and fire shots at him. Silver further testified that
the area was well lit and was able to give the police a description
of his assailant which was corroborated by video surveillance.
Regarding his use of marijuana that day, Silver testified
that it was several hours prior to the shooting and that he was
not under its effects at the time of the shooting nor when he
gave his statement or identification of Appellant to the police.
The jury sitting as factfinder found this evidence to be credible
and compelling and therefore convicted Appellant of all charges.
Determinations of credibility are within the exclusive province of
the jury. Commonwealth v. Charlton, 902 A.2d 554, 563 (Pa.
Super. 2006).
PCRA Court Opinion, 4/9/2021, at 5-6 (name designations altered). The
court also noted its belief that any challenge to weight lacked merit. Id.
Accordingly, it determined that Appellant’s ineffective assistance of counsel
claim based upon weight failed for lack of merit.
Id. It also concluded
Appellant was unable to prove prejudice, as the outcome of the proceedings
would not have been different had Appellant raised this claim.
Id.
When assessing whether the PCRA court abused its discretion in
concluding Appellant’s claim failed on the merits and prejudice prongs we
are mindful that a defendant must raise a claim that the evidence is against
the weight of the verdict with the trial court by oral or written motion prior
to sentencing, or in a post-sentence motion. Pa.R.Crim.P. Rule 607(a). A
motion asserting that the verdict was against the weight of the evidence is
addressed to the discretionary power of the court. Commonwealth v.
Widmer, 744 A.2d 745, 751–52 (Pa. 2000).
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“A new trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have arrived at a
different conclusion.” Id. “A new trial is warranted in this context only
when the verdict is so contrary to the evidence that it shocks one’s sense of
justice and the award of a new trial is imperative so that right may be given
another opportunity to prevail.” Commonwealth v. Smith,
181 A.3d 1168,
1186–87 (Pa. Super. 2018) (citations omitted).
The jury as finder of fact is free to believe all, none, or some of the
evidence and to determine the credibility of witnesses. Commonwealth v.
Delmonico, 251 A.3d 829, 837 (Pa. Super. 2021). It is the exclusive
province of the jury to resolve contradictory testimony and assess credibility.
Id.
We discern no abuse of discretion in the PCRA court’s assessment that
a weight claim neither had merit nor would have changed the outcome
because the jury relied upon Silver’s ability to get a good look at the
perpetrator and believed his testimony that the marijuana he consumed
hours before the incident did not impair his judgment or recall. These are
the types of determinations that are well within the jury’s province to
determine. See Delmonico, 251 A.3d at 837.
Failure to Investigate and Consult
In Appellant’s final argument, he asserts that his trial counsel’s
assistance was ineffective because counsel failed to investigate the case
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properly and to consult with Appellant to prepare an adequate defense.
Appellant’s Brief at 13. Appellant specifically takes issue with counsel’s
failure “to investigate and/or better develop” these areas: “trial strategy;”
Silver’s prior conviction for impeachment purposes; an unspecified motion in
limine; calling Graham as a witness to testify to the threats Officer Goodwin
made to Appellant; and the information Officer Goodwin provided to
Detective Rocks. Id. Appellant also accuses trial counsel of not reading his
letters, not consulting with him in advance, and overall failing to investigate
the case.
Id.
Appellant’s allegations are merely a rehashing of his prior
ineffectiveness claims that we have rejected supra, along with a few new
bald and vague allegations about trial strategy and an unspecified motion in
limine. Thus, Appellant fails to establish prejudice from counsel’s alleged
failure to consult and investigate. See Commonwealth v. Elliott, 80 A.3d
415, 432 (Pa. 2013) (holding a defendant must establish that he was
prejudiced by trial counsel’s failure to meet with him in order to prepare
adequately for trial). Appellant sets forth no “beneficial information or
issues that counsel should have presented had he been prepared
adequately, which would have changed the outcome of the trial.”
Id.
Accordingly, this claim fails.
Conclusion
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J-S29035-21
Based on the foregoing, we affirm the PCRA court’s dismissal of
Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2021
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