Opinion
03-28-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. JULIO GONZALEZ, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered June 22, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0109021-2003
BEFORE: BENDER, P.J.E., WECHT, J., and STRASSBURGER, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Julio Gonzalez appeals from the June 22, 2012 order dismissing his request for post-conviction relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9542-9546. Gonzalez contends that trial counsel provided ineffective assistance of counsel for failing (1) to seek a mistrial or curative instruction in connection with the identification of Gonzalez, (2) to present an alibi defense, (3) to seek a lineup or sequester a witness, and (4) to request an inconsistent statement jury instruction. We affirm.
Following our review of the record, Gonzalez's brief, the relevant law, and the thorough analysis provided by the PCRA court in its opinion, we conclude that the PCRA court properly found that Gonzalez's claims are without merit. Consequently, finding no error by the court, and determining that its well-reasoned opinion correctly addresses Gonzalez's claims, we adopt the PCRA court's opinion as our own and affirm the June 22, 2012 order on that basis.
The Commonwealth has not submitted a brief in this matter.
Order affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary
IN THE COURT OF COMMON PLEAS OF THE COUNTY OF PHILADELPHIA
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL
COMMONWEALTH OF PENNSYLVANIA JULIO GONZALEZ
CP-51-CR-0109021-2003
1932 EDA 2012
PROCEDURAL HISTORY
Defendant Julio Gonzalez was convicted of attempted murder, aggravated assault, and possession of an instrument of crime following a jury trial before the Honorable John O'Grady, Defendant was sentenced to fifteen to thirty years of incarceration followed by five years of probation. He appealed to the Superior Court, which affirmed the judgment of sentence. Commonwealth v. Gonzalez, 929 A,2d 238 (Pa. Super. 2007). Defendant then filed a petition for allowance of appeal in the Pennsylvania Supreme Court, which denied Defendant's petition. Commonwealth v. Gonzalez, 945 A.2d 167 (Pa. 2008).
Defendant filed a timely counseled petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §9541 et seq. Defendant's petition claimed that William Cannon (Defendant's trial counsel) was ineffective for: (1) failing to preserve a claim challenging the weight of the evidence for appellate review; (2) failing to seek to exclude the preliminary hearing testimony of the eyewitness Muhammed Khalit, who died prior to trial; (3) failing to request an "inconsistent statement" charge; and (4) failing to call an alibi witness, Lillian Medina.
Judge O'Grady granted an evidentiary hearing concerning Defendant's alibi claim. This evidentiary hearing was held on September 23, 2001, befoTe Judge O'Grady. Lillian Medina, Rafael Arroyo, Brenda Rivera, and defense counsel testified at the hearing as follows:
• Lillian Medina testified regarding her alleged alibi testimony including Defendant's whereabouts on July 21, 2002. Medina testified that she drove with Defendant to pick up his niece from her mother's house in Wilmington, Delaware. They left at approximately 6:00 pm and did not return until about midnight. She remembered this because it was the first day that Defendant's niece came to stay with them in more than three years.(N.T. 9/23/11 at 3, 23, 57, 770
• Rafael Arroyo testified that be informed defense counsel of the existence of Medina, who was the alleged alibi witness.
• Brenda Rivera's testimony supported the testimony of Medina and Arroyo.
• Defense counsel testified that neither Defendant nor any family members ever advised him of the existence of any alibi witness including Medina. In fact, he testified that Defendant told him that he had no recollection of where he was on the evening of July 21, 2002. Defense counsel testified that he would have presented the alibi witness if he had known about her existence.
After the hearing on September 23, 2011, Judge O'Grady ruled that many of Defendant's claims lacked merit. Following the evidentiary hearing, Defendant raised and briefed additional claims alleging ineffective assistance of trial counsel. These claims alleged ineffectiveness for failing to seek a mistrial or a curative instruction related to Salch's identification of Defendant as well as for failing to seek a lineup or to take other steps to sequester Defendant from Saleh. Defendant's additional claims were deemed lacking in merit by this Court, which had been administratively assigned to adjudicate the Defendant's petition following Judge O'Grady's retirement.
Following the service upon Defendant of a Pa.R.Crim.P. 907 notice, this Court formally dismissed the petition on June 22, 2012. Defendant filed a timely Notice of Appeal on July 9, 2012, as well as a requested Pa.R.A.P. 1925(b) statement. For the reasons stated below, the appellate court should affirm this Court's dismissal of Defendant's PCRA petition.
FACTUAL BACKGROUND
On July 20, 2002, Roshdi "Richie" Saleh walked to a 7-Eleven convenience store with his girlfriend and his friend Muhammad Khali where they encountered Defendant, who was standing in the parking lot and staring threateningly at Saleh. Defendant and Saleh squared off to fight and stood just two feet apart for approximately two minutes until one of Defendant's friends intervened. Saleh and his friends then walked into the store. Defendant followed him inside and apologized after which the two men then shook hands. (N.T. 1/26/05 at 52; N.T. 1/27/05 at 25.)
The next night, at approximately 11:00 p.m., Saleh and Khalil were riding their motor scooters in the Logan area of Philadelphia. Saleh had a problem with his scooter, and the two men stopped at Ella and Louden Streets to tighten a loose gas tank. Khali! saw Defendant walking toward them from about thirty five feet away, and Khalil said to Saleh, "Yo, yo, the Puerto Rican boy from the day before is coming toward us," Khalil then saw Defendant fire a gun at Saleh approximately six or seven times from about two feet away from Saleh. Saleh was struck in the head and back and fell to the ground. Defendant continued shooting at Saleh while walking away. Defendant also fired the gun at Khalil, but he was not hit. (N.T. 1/27/05 at 28.)
Both Saleh and Khalil knew Defendant from seeing him in the neighborhood prior to the shooting on July 21, 2002. Khalil testified that Defendant was the man who argued with Saleh at the 7-Eleven on July 20, 2002, and later shot Saleh on the evening of July 21, 2002, Saleh testified that Defendant was the same man with whom he argued at the 7-Eleven. Saleh and Khalil both testified that the parking lot and convenience store had been well lit. (N.T. 1/26/05 at 52; N.T. 1/27/05 at 25.)
Although Saleh did not recall the shooting itself, he did remember riding his scooter on the night he was shot. Saleh's next memory following the incident was waking up in the hospital a month after it occurred. (N.T. 1/27/05 at 25-26; N.T. 1/26/05 at 58.)
Saleh was rushed to Temple University Hospital following the shooting where the gunshot wounds to his head and chest were treated. Saleh spent several weeks in the hospital and another two months at the Moss Rehabilitation Hospital. Jeanne Pelensky, M.D., was Saleh's physician at the Moss Rehabilitation Hospital. Dr. Pelensky works in the hospital's Drucker Brain Injury Center and specializes in traumatic brain injury rehabilitation. Dr. Pelensky testified that Saleh continued to suffer from deficits in cognitive function, including "problems with focusing his attention," a rigid thinking pattern, and difficulty organizing his thoughts. Dr. Pelensky further testified that Saleh's memory has improved since the days following the shooting. Last, she testified that it would be fully consistent with his injuries to remember events the day before he was shot and the minutes prior to the shooting, but not to recall the shooting itself (N.T. 1/25/05 at 100-03, 106-07, 110-11.)
DISCUSSION
In his 1925(b) Statement of Matters Complained of on Appeal, Defendant raised the following six issues: (1) "Trial counsel was ineffective for failing to seek a mistrial or a curative instruction from the Court after the complaining witness advised that he had seen Gonzalez on the date of the incident even though the defense had been theretofore advised that he could not make such an identification;" (2) "The Court erred in finding that counsel was not ineffective for failing to present an alibi defense;" (3) "Trial and appellate counsel were ineffective for failing to file timely Post-Sentence Motions seeking a new trial based on the weight of the evidence;" (4) "Trial counsel was ineffective for failing to seek to exclude the Preliminary Hearing testimony of Muhammed Khalil;" (5) "Counsel was ineffective for failing to seek an inconsistent statement charge to advise the jury that an inconsistent statement could be substantive evidence in a case;" and (6) "Trial counsel was ineffective for failing to seek a lineup or to take other steps to sequester Gonzalez from Saieh after trial counsel was allegedly advised that the complaining witness, Saleh, could identify Gonzalez as having been a person with whom he had a verbal altercation the day before the shooting."
In Commonwealth v. Cox, 983 A.2d 666 (Pa. 2009), our Supreme Court set forth the standards governing claims brought pursuant to the PCRA alleging ineffective assistance of counsel:
Under the PCRA, collateral relief is afforded to individuals who prove that they are innocent of the crimes of which they were convicted, and those receiving illegal sentences. 42 Pa.C.S. §9542. "A petitioner is eligible for PCRA relief only when he proves by a preponderance of the evidence that his conviction or sentence resulted from one or more of the circumstances delineated in 42 Pa.C.S. §9543(a)(2)." Commonwealth v. Natividad, 595 Pa. 188, 938 A.2d 310, 320 (Pa. 2007). One of the grounds enumerated in 42 Pa.C.S §9542(a)(2) involves claims alleging ineffective assistance of counsel. Thus, the PCRA provides relief to those individuals whose convictions or sentences "resulted from ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. §9542(a)(2)(ii). This Court has interpreted this to mean that in order to obtain relief on a claim alleging ineffective assistance of counsel, a petitioner must prove that: (1) the claim underlying the ineffectiveness claim has arguable merit; (2) counsel's actions lacked any reasonable basis; and (3) counsel's actions resulted in prejudice to petitioner. Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237 (Pa. 200S); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (Pa. 1987). A chosen strategy will not be found to have lacked a reasonable basis unless it is proven 'that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.'" Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (Pa, 2006) (quoting Commonwealth v. Howard, 553 Pa. 266, 719 A.2d 233, 237 (Pa. 1998)). "Prejudice in the context of ineffectiveCox, 983 A.2d at 678.
assistance of counsel means demonstrating that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different." Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (Pa. 2001); Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052 (1984). Finally, the law presumes that counsel was effective and the burden of proving that this presumption is false rests with the petitioner. Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 728 n.10 (Pa. 2000).
The standard of review for an appeal from the denial of PCRA relief is "whether the findings of the PCRA court are supported by the record and free of legal error." Commonwealth v. Gwynn, 596 Pa. 39S, 943 A.2d 940,944 (Pa. 2008)(citing Commonwealth v. Abu-Jamah, 574 Pa. 724, S33 A.2d 719, 723 (Pa. 2003)). "The level of deference accorded to the post-conviction court may vary depending upon whether the decision involved matters of credibility or matters of applying the governing law to the facts as so determined." Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294, 299 (Pa. 2008). "The PCRA court's factual determinations are entitled to deference, but its legal conclusions are subject to plenary review." Commonwealth v. Gorby, 587 Pa. 417, 444, 900 A.2d 346, 363 (Pa. 2006).
As discussed below, each of Defendant's ineffectiveness claims lack merit and fail at least one of the prongs of the ineffectiveness analysis, The post-conviction court's findings are supported by the record and free of legal error. As a result, the appellate court should affirm the post-conviction court's dismissal of Defendant's PCRA petition.
1. The post-conviclion court properly denied Defendant's claim that defense counsel was ineffective for failing to seek a mistrial or a curative instruction from the trial court regarding Saleh's identification testimony
Defendant challenges the denial of his claim that defense counsel was ineffective for failing to seek a mistrial or a curative instruction from the trial court regarding Saleh's identification testimony. Although Saleh was unable to identify Defendant as the shooter, he did identify Defendant as the individual he encountered the night prior to the shooting. Counsel for the Commonwealdi learned about Saleh's anticipated testimony in the weeks before trial and promptly notified defense counsel that there would be an identification of Defendant by Saleh. Defense counsel disputed that he was so notified, but Judge O'Grady permitted this limited identification testimony at trial. Defendant's claim lacks merit when analyzed under the three prong ineffectiveness test.
In Commonwealth v. Chamberlain, 612 Pa. 107 (Pa. 2011), the Pennsylvania Supreme Court set forth the standard governing the review of the denial of a motion for a mistrial:
It is well-settled that the review of a trial court's denial of a motion for a mistrial is limited to determining whether the trial court abused its discretion. See Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 142 (Pa. 2008); Commonwealth v. Simpson, 562 Pa. 255, 754 A.2d 1264, 1272 (Pa. 2000). "An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will ... discretion is abused." Wright, 961 A.2d at 142 (quoting Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 634 (Pa. 2003) (infernal quotations omitted)). A trial court may grant a mistrial only "where the incident upon which the motion is based is of such a nature that its unavoidable effect is (o deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict." Wright, 961 A.2d at 142; Simpson, at 1272. A mistrial is not necessary where cautionary instructions are adequate to overcome prejudice. Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580, 593 (Pa. 1998); Commonwealth v. Lawsom, 519 Pa. 175, 546 A.2d 589, 594 (Pa. 198S).Chamberlain, 30 A.3d at 422.
As an initial matter, the underlying claim lacks arguable merit as defense counsel had no basis to seek a mistrial. A few weeks before trial, defense counsel was advised by the Commonwealth via telephone that Saleh could make an identification of Defendant on July 20, m 2002, The Assistant District Attorney even provided a notebook detailing the phone call she made to defense counsel with a specific notation regarding Saleh's ability to identify Defendant on July 20,2002, (N.T. 1/26/05 at 7-15.) Defendant was also provided ample opportunity to cross-examine Saleh at trial about his identification. Further, Defendant provides no information about any additional investigation that defense counsel should have pursued, or any difference in trial strategy that would have had an impact on his defense at trial because of the identification. Therefore, defense counsel had no legal basis to request a mistrial, and ~ more importantly - no appellate court would have found that the trial court abused its discretion in denying any request for a mistrial or for a curative instruction. Commonwealth v. Wright, 961 A.2d 119 (Pa. 2008); Commonwealth v. Simpson, 754 A.2d 1264 (Pa. 2000). As a result, the underlying claim lacks merit.
Second, Defendant suffered no prejudice as a result of trial counsel's failure to seek a mistrial or a curative instruction. The record shows that Saleh did not identify Defendant as the man who shot him. Therefore, the instruction Defendant claims trial counsel should have requested was unnecessary. In addition, the trial court provided appropriate cautionary instructions to the jury including instructions on inconsistent statements and credibility. These instructions addressed how the jury may judge the credibility of witnesses based on their demeanor and testimony, inaccuracies and inconsistencies in their testimony, and the ability to discredit a witness's testimony based on a single falsehood. (N.T. 1/2S/05 at 23-26,) The jury is presumed to have followed these instructions, see Commonwealth v. Jones, 542 Pa. 464 (1995)(stnting the jury is presumed to follow the court's instructions), and these instructions were sufficient under the circumstances. Any prejudice would stem from the identification as substantive evidence, and not from trial counsel's failure to seek a mistrial or a curative instruction.
2. The post-conviction court properly denied Defendant's claim that defense counsel was ineffective for failing to present an alibi defense
Defendant challenges the denial of his claim that defense counsel was ineffective for failing to present an alibi defense. In Commonwealth v. Brown, 767 A.2d 576 (Pa. Super. 2001), the Superior Court set forth the standard governing the failure to call a witness at trial:
To prevail on a claim of trial counsel's ineffectiveness for failure to call a witness, the [appellant] must show: (1) that the witness existed; (2) that the witness was available; (3) that counsel was informed of the existence of the witness or should have known of the witness's existence; (4) that the witness was prepared to cooperate and would have testified on appellant's behalf; and (5) that the absence of the testimony prejudiced appellant. . Commonwealth v, Fletcher, 561 Pa, 266, 291, 750 A.2d 261 (2000). Thus, trial counsel will not be found ineffective for failing to investigate or call a witness unless there is some showing by the appellant that the witness's testimony would have been helpful to the defense, Commonwealth v. Auker, 545 Pa. 521. 548. 6S1 A.2d 1305, 1319 (1996).Brown, 767 A.2d at 581-82.
Defendant claimed (1) that Lillian Medina, his sister-in-law, would have provided an alibi if she was called to testify at trial and (2) that Medina was available and known to counsel at the time of trial. Judge O'Grady presided over an evidentiary hearing on September 23, 2011, where Lillian Medina provided her alibi testimony about Defendant's whereabouts on July 21, 2002. In sum, Medina stated she drove with Defendant to pick lip his niece from her mother's house in Wilmington, Delaware, They left at approximately 6:00 p.m., and did not return until about midnight. She remembered this because it was the first day lhat Defendant's niece came to stay with them in more than three years. Rafael Arroyo, Defendant's brother, also testified at this hearing. He claimed that he informed defense counsel of Medina as an alibi witness prior to trial. Brenda Rivera's testimony corroborated the testimony of Medina and Arroyo. (N,T. 9/23/11 at 57-62.)
In contrast, defense counsel testified at the evidentiary hearing that neither Defendant nor any of his family members ever advised him of the existence of any alibi witness including Medina. He testified that Defendant told him that he had no recollection of where he was on the evening of July 21, 2002. Defense counsel also testified that he would have presented the alibi witness if he had known about her existence. (N.T. 9/23/11 at 10, 15, 19.)
After reviewing the testimony from the evidentiary hearing, Judge Anders credited the testimony of defense counsel that he was never informed that an alibi witness existed, that he would have presented the witness if he was actually informed of her existence, and that neither Defendant nor family members informed him of Medina. The court discredited'the testimony of the defense witnesses and found Medina's alleged alibi testimony as incredible. (N.T. 05/4/12 at 3-6.)
In making ibis credibility determination, the court noted Medina's Inconsistent testimony. The court also noted that Defendant's brother Arroyo testified at sentencing but never mentioned that his girlfriend was an alibi witness and that Defendant's mother testified at trial but never mentioned the existence of an alibi witnesses. In other words, the court found it incredulous that Defendant's family members would have withheld the fact that a relative or significant other was an alibi witness when they either testified at the trial or the sentencing.
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Accordingly, Defendant failed to prove that defense counsel knew, or should have known, bf the alleged alibi witness. Indeed, the post-conviction court determined that the alleged alibi witness' testimony was incredible. The court supported this decision on the record with the specific credibility findings referenced above. The court's factual findings regarding the defense witnesses and defense counsel are entitled to deference. The court cited the proper standard for ineffectiveness claims related to failing to present a witness at trial, and the record is free of legal error. Therefore, this court should affirm the post-conviction court's decision to deny Defendant's ineffectiveness claim for defense counsel's failure to present an alibi witness or defense.
3. The post-conviction court properly denied Defendant's claim that trial and appellate counsel were ineffective for failing to file post-sentence motions seeking a new trial based on the weight of the evidence
Defendant challenges the denial of his claim that trial and appellate counsel were ineffective for failing to file post-sentence motions seeking a new trial based on the weight of the evidence. Defendant's claim tacks arguable merit when analyzed under the three prong ineffectiveness test.
In Commonwealth v. Chamberlain, 30 A.3d 381 (Pa. 2011), the Pennsylvania Supreme Court set forth the standards governing review of the decision to grant a new trial:
The decision of whether to grant a new trial on the basis of a challenge to the weight of the evidence is necessarily committed to the sound discretion of the trial court due to the court's observation of the witnesses and the evidence. Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177 (Pa. 1994). A trial court should award a new trial on this ground only when the verdict is so contrary to the evidence as to shock one's sense of justice. Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (Pa. 19S6). A motion alleging the verdict was against the weight of the evidence should not be granted where it merely identifies contradictory evidence presented by the Commonwealth and the defendant. Brown, 648 A,2d at 1191. [The Supreme Court's] review on appeal is limited to determining whether the trial court abused its discretion in denying the motion for a new trial on this ground. Id. at 1190-91.Chamberlain, 30 A.3d at 396-97.
To succeed on a claim that the verdict is against the weight of the evidence, the verdict must shocks one's sense of justice. Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155 (Pa. 19S6). Here, it is clear that the claim regarding defense counsel's and appellate counsel's ineffectiveness lacks arguable merit. Defendant was convicted, in part, on the basis of witness identification testimony by Khalil from the preliminary hearing and by the victim at trial. Based upon a review of the evidence at trial it is clear that the jury credited this testimony, which led to the convictions. Weighing this evidence along with the other substantial evidence admitted at trial, the guilty verdict does not shock the conscience or one's sense of justice. Thus, the post-conviction court's denial of Defendant's ineffectiveness claim should be affirmed because the underlying claim lacks arguable merit.
4. The post-conviction court properly denied Defendant's claim that defense counsel was ineffective for failing to seek to exclude the preliminary hearing testimony of Khalil
Defendant challenges the denial of his claim that defense counsel was ineffective for failing to seek to exclude Khalil's preliminary hearing testimony. At the preliminary hearing, Khalil identified Defendant as the shooter. Unfortunately, Khalil died before the trial. The Commonwealth introduced the preliminary hearing testimony as substantive evidence that was necessary to identify Defendant as the shooter because the victim did not remember who shot him. Defendant argues that his counsel did not have a full and fair opportunity to cross-examine Khalil during the preliminary hearing because the defense had not been given a copy of the 75-48 police report prior to the preliminary hearing, a document that Defendant claims was essential for an effective cross-examination of Khalil. The Commonwealth contends Defendant had ample opportunity and actually did conduct a substantial and searching cross-examination during Khalil's preliminary hearing testimony that satisfied the requirements of admissibility.
Defendant's claim lacks merit when analyzed under the three prong ineffectiveness test. First, the underlying claim lacks arguable merit. The admissibility of an unavailable witness' preliminary hearing testimony "is a matter within the trial court's discretion, and its decision will not be upset absent an abuse of discretion." Commonwealth v. Nelson, 652 A.2d 396, 399 (Pa. Super. Ct. 1995). An abuse of discretion is not simply or merely an error in judgment; instead, it occurs when "the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence on record." Commonwealth v. Cooper, 941 A.2d 655,667 (Pa. 2007). Preliminary hearing testimony is admissible for an unavailable witness if the defense had a full and fair opportunity to cross-examine the witness. Pa.R.E. §804(b)(1), 42 Pa.C.S. §5917, Commonwealth v. Bazemore, 531 Pa. 582, 614 A.2d 684 (1992). A defendant is provided a full and fair opportunity to cross-examine a witness at a preliminary hearing unless he lacked vital impeachment evidence at the time of the questioning. Commonwealth v. Johnson, 758 A.2d 166, 173 (Pa. Super. Ct. 2000)(noting "the established principle that only the withholding of vital impeachment evidence deprives a defendant of the ability to conduct a full and fair cross-examination").
Here, the witness was clearly unavailable at trial. The issue is whether Defendant had a full and fair opportunity to cross-examine the witness. Defense counsel conducted a cross-examination that questioned Khalil's recollections and observations in great detail. Although Defendant points to the 75-48 police report, which was not provided until after the preliminary hearing, he fails to assert how the 75-48 report is "vital impeachment evidence" or even how the questions asked of the witness would have differed.
Second, defense counsel's actions did not result in prejudice to Defendant because - as discussed above - any motion to preclude Khalil's preliminary hearing testimony would have been denied. As a result, Defendant fails to demonstrate that the jury verdict would have been different if defense counsel had moved to exclude Khalil's testimony.
Thus, this claim fails the first and third prongs of the ineffectiveness test.
5. The post-conviction court properly denied Defendant's claim that defense counsel was ineffective for failing to seek an inconsistent statement charge to advise the jury that an inconsistent statement could be used as substantive evidence
Defendant challenges the denial of his claim that defense counsel was ineffective for failing to seek a special jury charge advising the jury that inconsistent statements can be used as substantive evidence. Khalil identified Defendant as the shooter and the same person from the 7-Eleven incident the previous night. Defendant alleges, however, that Khalil gave a statement to . Officer Cole (the initial investigating officer) and failed to provide any information about the 7-Eleven incident the previous night. The Commonwealth maintains this was a mere omission in a police summary, and Defendant argues this is an inconsistency. Defendant claims defense counsel acted unreasonably and ineffectively for failing to seek a jury instruction on inconsistent statements used as substantive evidence.
First, Defendant's underlying claim lacks arguable merit. Defendant claims Khalil testified at trial inconsistently with a statement he gave to police the night of the shooting, and this alleged inconsistency warranted an additional charge regarding the credibility of witnesses who provide inconsistent testimony. Defendant's asserted "inconsistency" is contrary to Pennsylvania law because omissions of facts in prior statements do not render them inconsistent statements for impeachment purposes. Commonwealth v. Hill, 549 A.2d 199, 203 (Pa. Super. Ct. 1938), Commonwealth v. Rue, 524 A.2d 973, 976 (Pa. Super. Ct. 1987). Moreover, the 75-48 police report is only a summary of the victim's declaration and not a verbatim account. See Commonwealth v. Hill, 406 A.2d 796 (Pa. Super. Ct. 1979)(police summary of victim's declaration is not a witness' statement where it was not a verbatim account and the witness did not adopt or approve the statement as accurate). Khalil never adopted the 75-48 report or any information within the report as his own. As a result, the 75-48 police report is not a statement by Khalil and cannot serve as a basis for an inconsistent statement instruction. This underlying claim therefore lacks arguable merit.
Second, counsel's actions did not result in prejudice to Defendant. In Commonwealth v. Cox, 603 Pa. 223 (Pa. 2009), the Pennsylvania Supreme Court clarified the following standard related to ineffectiveness claims for failing to request a jury instruction:
In Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603 (Pa. 1993) and Commonwealth v. Rollins, 525 Pa. 335. 580 A.2d 744 (Pa. 1990), this Court was faced with claims . . . that trial counsel had been ineffective for not requesting limiting instructions following the introduction of other crimes evidence. In both cases, relief was denied because it was not reasonably probable that had cautionary instructions been given, the jury ultimately would have reached a different verdict.Cox, 603 Pa. at 262. Defendant cannot show a reasonable probability that, but for counsel's alleged error, the outcome of the proceeding would have been different. An inconsistent statement instruction would not have altered the jury's verdict because - when taken as a whole - the standard jury instructions fully and adequately explained the relevant legal principles applicable to the evidence presented at trial. This failure certainly did not so undermine the truth-determining process such that no reliable adjudication of guilt or innocence could have ' taken place. Moreover, the court instructed the jury on standard issues of credibility and inconsistent statements. The effect of adding this specific instruction on inconsistent statements used as substantive evidence would have been negligible in light of the totality of the circumstances and the outcome would not have been different.
6. The post-conviction court properly denied Defendant's claim that defense counsel was ineffective for failing to seek a lineup or sequester Defendant from Salch after defense counsel was advised that Saleh could identify Defendant as having been the person with whom he had a verbal altercation the day before the shooting
Defendant challenges the denial of his claim that defense counsel was ineffective for failing to seek a lineup or sequester Defendant from Saleh. Defendant's claim lacks merit when analyzed under the three prong ineffectiveness test.
First, the underlying claim lacks arguable merit. A defendant has no constitutional right to a lineup. Commonwealth v. Blassingale, 581 A.2d 183, 190 (Pa, Super. Ct. 1990). "The grant or denial of a motion for a lineup is a matter within the sound discretion of the trial court." Id.; see also Commonwealth v. Ingram, 591 A.2d 734, 740 (Pa. Super. Ct. 1991)(proper exercise of discretion to deny lineup where witness was familiar with appellant prior to incident and had opportunity to observe him at time of crime). Here, there is no legal merit to the underlying claim because Defendant was not entitled to a lineup. More importantly, a lineup request would have been denied because Khalil and Saleh both knew Defendant from the neighborhood and had seen him multiple times that summer. See N.T. 1/26/2005 at 130 (Khalil identified Defendant in a photo array four days after the shooting); N.T. 1/27/05 at 21 (Khalil identified Defendant at preliminary hearing); N.T. 1/26/2005 (Saleh identified Defendant at trial from night before shooting). The denial of any lineup request would have been upheld under an abuse of discretion standard.
Second, counsel's actions did not result in prejudice to Defendant. Even if a lineup motion was made, the outcome would have been the same. The witness identifications were reliable and unequivocal. Even if a lineup was conducted or there was a sequestration order, their testimony would have been the same, i.e., they would have identified Defendant as the shooter. Additionally, Defendant would be entitled to a cautionary jury instruction only if he hod requested and the court had wrongly denied a lineup. Commonwealth v. Sexton, 400 A.2d 1289, 1293-94 (Pa. 1979). In lieu of complete exclusion, Defendant would simply be entitled to a jury instruction informing the jury that he had been denied the opportunity for a more objective identification. Id. Therefore, Defendant cannot show any prejudice as a result of this claimed error.
CONCLUSION
Based on the foregoing, this court should affirm the post-conviction court's dismissal of Defendant's petition for relief under the PCRA. BY THE COURT: __________
DANIEL J. ANDERS, JUDGE