Opinion
J-S50011-16 No. 1654 MDA 2015
07-08-2016
COMMONWEALTH OF PENNSYLVANIA v. BRANDON RUIZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order September 3, 2015 in the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000285-2012 BEFORE: MUNDY, STABILE, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Brandon Ruiz, appeals from the order denying his first Post Conviction Relief Act ("PCRA") petition. Appellant contends trial counsel was ineffective for not seeking a mistrial or conducting a colloquy of the remaining jurors after a juror was dismissed because she was allegedly aware of the area in question and some of the witnesses. Appellant also asserts trial counsel was ineffective for not calling an expert to testify about eyewitness identification. We affirm.
We adopt the facts and procedural history set forth by a prior panel of this Court:
Ms. [Tiffany] Daniels's testimony is summarized as follows: Ms. Daniels and the Victim were engaged at
the time of the shooting. The Victim aspired to become a rapper, posted videos of himself rapping on YouTube, and performed at clubs and events. The Victim had a reputation as being involved in the hip-hop scene and he maintained a public image as being affluent.
On December 3, 2011, Ms. Daniels and the Victim went to the Derry Street Café ("Café"), left, went to another bar, and then returned to the Café at approximately 12:15 a.m. on December 4, 2011. Ms. Daniels was intoxicated by the end of the night. Although Ms. Daniels was familiar with Appellant and [Clarence Bender ("Co-Defendant")], she did not see either individual or [Appellant's friend,] Mr. [Tyrell] Weaver at the Café. Ms. Daniels and the Victim left the Café at closing time, which was approximately 1:30 a.m. In the parking lot, the Victim tried to maneuver his and Ms. Daniels's car out of its spot, but it was blocked by another vehicle. The Victim exited his vehicle and asked a nearby individual if he knew who owned the vehicle, but the individual did not respond. The Victim turned and lifted his right leg, at which point [Co-Defendant] grabbed the Victim from behind and demanded that he "give that shit up." [Co-Defendant] grabbed the Victim by the neck with his left arm and, with his right hand, held a chrome semiautomatic gun against the right side of the Victim's neck. When Ms. Daniels heard [Co-Defendant] threaten the Victim, she bent down to look out of the open driver's side doorway.
The Victim reached for his gun as he was attacked. As [Co-Defendant] and the Victim tussled, Appellant, who was unarmed, patted down the Victim. Ms. Daniels heard a gunshot, exited the vehicle, and found the Victim lying face-up in a pool of blood. One of the chains the Victim had that night was missing after the shooting. Ms. Daniels asserted in her testimony that [Co-Defendant] shot the Victim.
Mr. [John] Sanks[, head of security at the Café,] testified that the Victim and Ms. Daniels were frequent patrons of the Café. Mr. Sanks testified
that he was familiar with Appellant and [Co-Defendant], and that the two men arrived around midnight on December 4, 2011. According to Mr. Sanks's testimony, he patted down both Appellant and [Co-Defendant], but found no contraband. Mr. Sanks testified that he did not witness Appellant or [Co-Defendant] interacting with Ms. Daniels or the Victim that night.
Mr. Sanks testified that Ms. Daniels and the Victim left the Café, that [Co-Defendant], Mr. [Christopher] Diggs, and Mr. Weaver left the bar a few minutes later, and that Appellant walked out afterwards. Mr. Sanks testified that, upon hearing a gunshot outside, he looked across the street and saw [Co-Defendant], Appellant, the Victim and Ms. Daniels in the area where the shot came from; Mr. Sanks then watched [Co-Defendant] and Appellant cross Derry Street to return to the SUV. According to Mr. Sanks's testimony, [Co-Defendant] ran away from the scene first. Mr. Sanks testified that [Co-Defendant] and Appellant got into the SUV and, after a moment, the SUV drove westward down Derry Street.
* * *
According to [Harrisburg Police Department] Detective [Christopher] Krokos's testimony, following an interview on December 4, 2011, Appellant provided him with a statement that essentially claimed that Appellant and [Co-Defendant] approached the Victim to assist him in maneuvering his vehicle, but [Co-Defendant] shot the Victim and took two of the Victim's chains. Detective Krokos testified that, following an interview on January 3, 2012, [Co-Defendant] provided a statement that asserted that Appellant was fighting with the Victim in the parking lot, [Co-Defendant] approached the two in order to stop the fight, but Appellant shot the Victim. Detective Krokos testified that the surveillance video from the Café established Mr. Diggs, Mr. Weaver, and [Co-Defendant] arrived at the Café together, and that Appellant met them at the bar. Detective Krokos testified that the
surveillance video from the Café established that [Co-Defendant] walked up directly behind the Victim.
Commonwealth v. Ruiz , 2230 MDA 2012, at 1-3 (Pa. Super. Oct. 9, 2013) (footnote omitted). Appellant timely appealed; he challenged the weight of the evidence and whether the court erred by not severing the trial. This Court affirmed on October 9, 2013, but vacated the judgment of sentence for robbery. Appellant did not file a petition for allowance of appeal with our Supreme Court.
(Trial Court Opinion, filed February 15, 2013, at 3-5, 14-15) (internal footnotes omitted).
On February 22, 2012, the Commonwealth filed a criminal information charging Appellant with murder, robbery, and conspiracy. . . .
Following trial, a jury found Appellant guilty of second degree murder and robbery. The jury found Appellant not guilty of conspiracy. On November 5, 2012, the court sentenced Appellant to life imprisonment for the murder conviction. The court imposed a concurrent term of ten (10) to twenty (20) years' imprisonment for the robbery conviction.
Appellant filed a timely, counseled PCRA petition on Monday, November 10, 2014. See 1 Pa.C.S. § 1908 (stating last day of time-period cannot fall on weekend or legal holiday). Following an evidentiary hearing, at which the district attorney and Appellant's trial counsel testified, the court denied Appellant's petition on October 3, 2015. Appellant timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following issues:
Whether Appellant was deprived of his constitutional right to effective assistance of counsel when his trial attorney failed to request a mistrial, or the alternative, request to have the remaining jurors colloquyed to ensure they were not tainted by the proceedings and could be fair and impartial after juror number 8 disclosed she was aware of the witnesses and areas discussed during the trial?Appellant's Brief at 5 (footnote omitted).
Whether Appellant was deprived of his constitutional right to effective assistance of counsel when his trial attorney failed to request a Frye hearing to present expert witness identification testimony on the only eyewitness to identify the Appellant?
We summarize Appellant's arguments for both of his issues. Appellant contends he was prejudiced because trial counsel failed to request a mistrial after a juror was dismissed. He alternatively claims counsel was ineffective by failing to have the remaining jurors questioned to ascertain their fairness and impartiality after a juror was removed. Appellant also claims that in a case issued subsequent to his trial, Commonwealth v. Walker , 92 A.3d 766 (Pa. 2014), our Supreme Court held the trial court had the discretion to permit expert testimony on eyewitness identification. He concedes that although counsel cannot be found ineffective for failing to anticipate a change in the law, the Walker holding is sufficiently significant that he is entitled to a new trial. We decline to grant Appellant relief.
"On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Abu-Jamal , 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted).
[C]ounsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable basis for his or her conduct; and (3) [the petitioner] was prejudiced by counsel's action or omission. To demonstrate prejudice, [the petitioner] must prove that a reasonable probability of acquittal existed but for the action or omission of trial counsel. A claim of ineffective assistance of counsel will fail if the petitioner does not meet any of the three prongs. Further, a PCRA petitioner must exhibit a concerted effort to develop his ineffectiveness claim and may not rely on boilerplate allegations of ineffectiveness.Commonwealth v. Perry , 959 A.2d 932, 936 (Pa. Super. 2008) (punctuation and citations omitted).
After careful review of the parties' briefs, the record, and the well-reasoned decision by the Honorable Bernard Coates, Jr., we affirm on the basis of the PCRA court's decision. See PCRA Ct. Op., 9/3/15, at 4-7 (holding (1) juror testified she did not discuss her knowledge with the jury; (2) trial counsel opined insufficient basis for mistrial and did not believe juror lied; and (3) trial counsel had no reason to anticipate change in law). Furthermore, we note the overwhelming evidence of guilt including eyewitness testimony from, inter alia, the victim's fiancée, who was present at the shooting, and surveillance video. See Ruiz , 2230 MDA 2012, at 1-3. Accordingly, having discerned no error, we affirm. See Abu-Jamal , 941 A.2d at 1267.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/8/2016
ORIGINAL
COMMONWEALTH OF PENNSYLVANIA
vs. BRANDON RUIZ, Petitioner/Defendant IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 285-CR-2012 CHARGE(S): 2ND DEGREE MURDER; ROBBERY
ORDER
MEMORANDUM OPINION
COATES, J., September 3rd, 2015.
Before this Court is an Amended Petition for Relief Pursuant to the Post Conviction Relief Act filed by Brandon Ruiz (hereinafter "Defendant"). A PCRA Hearing was convened on July 7, 2015. Following the PCRA Hearing, this Court directed that Briefs and Memorandum of law be filed on August 7, 2015.
Procedural Background
On or about December 4, 2011, the Defendant was charged with numerous offenses including 2nd degree murder and robbery. A jury trial began on September 10, 2012, and ended on September 18, 2012. Following the jury trial, Defendant was convicted of Count 1, murder of the second degree and Count 2, robbery - inflicts serious bodily injury upon another. Defendant was sentenced on November 5, 2012. On November 14, 2012 Mr. Ruiz filed a post sentence motion requesting a new trial or arrest of judgment based on weight and sufficiency of the evidence. Defendant's post sentence motion was denied on December 10, 2012. Defendant appealed to the Superior Court and on October 9, 2013 the Pennsylvania Superior Court affirmed the murder of the second degree conviction but vacated the separate sentence for the robbery. Defendant did not seek review by the Supreme Court of Pennsylvania which established November 8, 2013, as the date that his judgment of sentence became final. See 42 Pa.C.S.A. §9545.
Mr. Ruiz was sentenced as follows: at Count 1, life imprisonment in a state correctional institution, to pay a fine of $5,000, and to pay the cost of proceedings; and at Count 2, not less than ten (10) or more than twenty (20) years imprisonment in a state correctional institution, to pay a fine of $2,500 and to pay the costs of the proceedings. The sentences were to run concurrent with each other. Defendant was also ordered to pay restitution in the amount of $6,500 to the Victim's Compensation Assistance Program. See also Transcript of Proceedings 5-6, November 5, 2012.
See Non-Precedential Decision - Superior Court I.O.P. 65.37. Commonwealth v. Ruiz, 2230 MDA 2012 (Pa. Super. 2013).
Attorney Jonathan W. Crisp was appointed to represent Defendant. On March 18, 2015, Defendant filed an Amended Petition for Relief Pursuant to the Post Conviction Relief Act ("Amended PCRA Petition"). A PCRA Hearing was held on July 7, 2015, following which the parties were directed to file briefs and memorandums of law in support of their position(s).
In Defendant's Amended PCRA Petition, Defendant asserts that his trial counsel was ineffective for failing to request a mistrial when it was discovered that Juror Number 8 was familiar with many of the paces mentioned in the case and may have had some familiarity with some of the individuals involved in the case. Defendant further asserts that trial counsel was ineffective for failing to request a Frye Hearing in order to present expert testimony to challenge the eyewitness identification of Petitioner by the only eyewitness, Tiffany Daniels.
See Defendant's Amended PCRA Petition filed on March 18, 2015. Defendant further alleged that Juror Number 8's disclosure about potential familiarity of the persons and places involved in the case was prejudicial and that trial counsel was ineffective for failing to request a mistrial to further investigate into any potential issues with the remaining jurors.
Defendant raises this issue in his Amended PCRA Petition. The issue was further addressed at the PCRA Hearing held on July 7, 2015. However, the Defendant did not address the issue in his Brief in Support of Post Conviction Relief Act Petition. As such, this will be addressed below.
Factual Background
As previously mentioned, a jury trial was held from September 10, 2012 to September 18, 2012. At the time of the trial, there were some concerns regarding Juror Number 8. There was a discussion held in chambers in regards to Juror Number 8. At this discussion, Juror Number 8 stated that she had some concerns because her husband goes to some of the places that were mentioned during the trial. She stated that she did not recognize any of the parties but that they may have recognized her. Juror Number 8 was concerned that it might have been a conflict and wanted to bring it to the court's attention. When the District Attorney asked her if it in any way impacted her ability to render a fair verdict, Juror Number 8 rendered that it did not at all. Juror number 8 went on to explain that she was concerned that someone would stand up and look at her and say, "that's Amanda's mom." Finally, Juror Number 8 stated that she did did not tell any of the other jurors what she had told the Court; that she did not tell them (other jurors) anything. After it was determined that there may be a conflict of interest, and wanting to err on the side of caution, an alternate was selected and the Court stated the following:
See Exhibit 1 Transcript of Proceedings - the conference that was conducted in Chambers - attached to Defendant's Amended Petition for Relief Pursuant to the Post Conviction Relief Act filed on March 18, 2015. (hereinafter "Exhibit 1 N.T. ___").
Exhibit 1 N.T. 147.
Exhibit 1 N.T. 147-148.
Exhibit 1 N.T. 149.
Exhibit 1 N.T. 151.
For the purposes of the record, we have inserted Alternate Number 1 or A-1 into the jury panel. We became aware that one of the jurors had some familiarity with this particular case ever so slight. However, we thought it in the best interest of the jury panel that we insert -excuse her and insert Alternate Number 1.
Exhibit 1 N.T. 154-55.
At the PCRA Hearing, Attorney Muller testified that he recalled having an in-chambers discussion in regards to Juror Number 8. Attorney Muller further indicated that he did not have any concerns, at the time, that Juror Number 8 would have discussed the matter with other jurors. When asked whether Attorney Muller had any reason to doubt that Juror Number 8 did not follow the instructions provided by the Court at the beginning of the trial, Attorney Muller indicated that he had no reason to doubt that Juror Number 8 did not follow the Court's instructions. Attorney Muller indicated that he did not think there was a basis to request a mistrial because it was not substantial enough to make a request for a mistrial as at that point in time, Attorney Muller did not feel that a mistrial would have been appropriate at that time. Additionally, Attorney Muller did not notice or recall anything in regards to observations that he made in regards to the jury that raised his concern that Juror Number 8 had somehow tainted the jury.
Attorney Paul Muller along with Attorney Mary Klatt, both from the Public Defender's Office, represented Defendant Brandon Ruiz at the Jury Trial.
These instructions include that the jurors are not to talk to each other about the case until they are sent to the jury room.
Attorney Muller further testified that the reason he did not pursue an expert witness for identification was, because at the time of the trial in 2012, it was not allowed.
Discussion
To obtain relief under the PCRA, the conviction or sentence must have resulted from one or more of the errors specifically enumerated in 42 Pa.C.S. § 9543(a)(2), including ineffective assistance of counsel. Id., § 9543 (a)(2)(ii). To establish ineffective assistance of counsel, a petitioner must demonstrate, by a preponderance of the evidence, that (1) the underlying claim is of arguable merit; (2) no reasonable basis existed for counsel's action or omission; and (3) there is a reasonable probability that the result of the proceeding would have been different absent such error. Commonwealth v. Chmiel, 612 Pa. 333, 30 A. 3d 1111, 1127 (Pa. 2011) (employing ineffective assistance test from Commonwealth v. Pierce, 515 Pa. 153, 527 A. 2d 973, 975-76 (Pa. 1987)). If a petitioner fails to satisfy any prong of the ineffectiveness inquiry, a claim of ineffective assistance of counsel will be rejected. Commonwealth v. Sattazahn, 579 Pa. 648, 952 A. 2d 640, 653 (Pa. 2008). As discussed below, Defendant's ineffective assistance claim on both the Juror Number 8 and expert testimony fail to meet the elements of the Pierce test.
See Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d. 1122 (Pa. 2007) (stating the standard to be used in an ineffective assistance of counsel claim).
Ineffective Assistance Claim on Juror Number 8
Courts have continuously recognized that upholding the sanctity of the jury system is a matter of utmost importance in our system of justice, Colosimo v. Pennsylvania Electric Co., 337 Pa.Super. 363, 369, 486 A.2d 1378, 1381 (1985); Mix v. North American Co., 209 Pa, 636, 59 A. 272 (1904), The Supreme Court has also held that "the removal of a juror can only be done by a trial court, on the record, with notice to the parties, for cause." (quoting Bruckshaw v. Frankford Hosp., 619 Pa. 135, 58 A.3d 102, 109 (2012)).
As previously mentioned, there was some concern regarding Juror Number 8's connection to some of the places involved in the case, At that time, an in-chambers conference was held regarding Juror Number 8's ability to stay on as a juror. Juror Number 8 thought it might have been a conflict that she recognized some of the places involved with the trial and thought it would be best to have it brought to the court's attention. In the presence of the Judge, the defense attorneys and the Commonwealth, Juror Number 8 indicated that she had not discussed what she knew with any of the other jurors involved with the case.
Furthermore, defense counsel at the time testified that he did not think there was a basis to request a mistrial because it was not substantial enough to make a request for a mistrial at that point in time, as Attorney Muller did not feel that a mistrial would have been appropriate at that time. Attorney Muller also indicated that there was nothing at the time to raise his concerns that Juror Number 8 was not telling the truth when she indicated that she had not spoken to the other jurors about the case. As such, there exists a reasonable basis as to why defense counsel did not request a mistrial.
Finally, assuming arguendo that there was an error, the weight of the evidence was against the Defendant, therefore, there is no reasonable probability that the result of the proceeding would have been difference absent such error
Expert Testimony Argument
As indicated above, the Defendant alleges in his Amended Petition for Relief Pursuant to the Post Conviction Relief Act that trial counsel was ineffective for failing to request a Frye Hearing in older to present expert testimony to challenge the eyewitness identification of Petitioner by the only eyewitness, Tiffany Daniels. Defense counsel testified at the PCRA Hearing that the reason that he did not present an expert witness on eyewitness identification as it pertained to Tiffany Daniels' eyewitness testimony was because at the time of the trial in 2012, the decision in Walker had not yet been handed down. Therefore, there was no duty on Attorney Muller to be aware of such expects because, at the time of the Defendant's trial in 2012, he would have been precluded from presenting such expert testimony. As such, Attorney Muller had a reasonable basis for not presenting expert testimony to challenge eyewitness identification.
This argument was included in Defendant's Amended Petition for Relief Pursuant to the Post Conviction Relief Act and was raised again at the PCRA Hearing. However, in the Defendant's Brief in Support of Post Conviction Relief Act Petition, the Defendant fails to address this issue.
See Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014).
In light of the foregoing, this Court finds that Defendant's claims do not warrant PCRA relief.
BY THE COURT:
/s/_________
Bernard L. Coates, Jr. Judge DATED: September 1, 2015 Distribution:
Joseph Cardinale, Esq., District Attorney's Office
John Baer, Esq., District Attorney's Office
Jonathan W. Crisp, Esq., 3540 North Progress Avenue, Suite 209, Harrisburg, PA, 17110
Brandon Ruiz, # KU1889, SCI Forest, 286 Woodland Drive, Marienville, PA 16239
Chambers of the Honorable Bernard L. Coates, Jr.