J-S17023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ANDRE LEWIS                                :
                                               :   No. 1113 EDA 2017
                       Appellant               :

                  Appeal from the PCRA Order March 20, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008894-2009


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY LAZARUS, J.:                                 FILED JUNE 25, 2018

       Andre Lewis appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, denying his petition for post-

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. After review, we affirm.

       On October 11, 2008, Lewis shot Gilberto Alvarez to death following an

altercation that occurred the previous evening. On December 30, 2010, a jury

convicted Lewis of third-degree murder, carrying a firearm without a license

and possession of an instrument of crime.1 On April 11, 2011, the trial court

imposed an aggregate sentence of 15 to 30 years’ imprisonment, followed by

seven years’ probation.        On October 19, 2012, this Court affirmed Lewis’

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1 18 Pa.C.S.A. § 2502(c), 18 Pa.C.S.A. § 6106, and 18 Pa.C.S.A. § 907(a),
respectively.
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judgment of sentence.         Commonwealth v. Lewis, 2512 EDA 2011 (Pa.

Super. filed October 19, 2012) (unpublished memorandum).             On July 11,

2013, our Supreme Court denied Lewis’ petition for allowance of appeal.

       On May 14, 2014, Lewis timely filed, pro se, the instant PCRA petition.

The PCRA court appointed Stephen O’Hanlon, Esquire, PCRA counsel, and

Attorney O’Hanlon subsequently filed a Turner/Finley2 no-merit letter. On

April 24, 2017, the PCRA court dismissed Lewis’ PCRA petition. On March 27,

2017, Lewis filed a timely notice of appeal. Both Lewis and the trial court

have complied with Pa.R.A.P. 1925. On appeal, Lewis raises the following

issue for our review: “Did the PCRA court err in finding that [Lewis’] ineffective

assistance of counsel claim was without merit?” Brief of Appellant, at 7.

       PCRA petitions are subject to the following standard of review:

       As a general proposition, we review a denial of PCRA relief to
       determine whether the findings of the PCRA court are supported
       by the record and free of legal error. A PCRA court’s credibility
       findings are to be accorded great deference, and where supported
       by the record, such determinations are binding on a reviewing
       court. To obtain PCRA relief, appellant must plead and prove by
       a preponderance of the evidence: (1) his conviction or sentence
       resulted from one or more of the errors enumerated in 42 Pa.C.S.
       § 9543(a)(2); (2) his claims have not been previously litigated or
       waived; and (3) the failure to litigate the issue prior to or during
       trial . . . or on direct appeal could not have been the result of any
       rational, strategic or tactical decision by counsel. An issue is
       previously litigated if the highest appellate court in which
       appellant could have had review as a matter of right has ruled on
       the merits of the issue. An issue is waived if appellant could have

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2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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      raised it but failed to so before trial, at trial, . . . on appeal or in a
      prior state post[-]conviction proceeding.

Commonwealth v. Roane, 142 A.3d 79, 86-87 (Pa. Super. 2016) (citations,

quotations and brackets omitted).

      Lewis argues trial counsel rendered ineffective assistance where

counsel: (1) did not file a motion to suppress photographic evidence; (2) did

not seek a voluntary manslaughter charge; and (3) failed to object to the

admission of a prior inconsistent statement by Lewis’ mother, Kimberly

Underwood.

      To prove counsel ineffective, the petitioner must demonstrate that: (1)

the underlying legal issue has arguable merit; (2) counsel’s actions lacked an

objective reasonable basis; and (3) the petitioner was prejudiced by counsel’s

act or omission. Roane, 142 A.3d at 88. A petitioner must set forth and

substantively discuss each individual prong of the test for ineffective

assistance of counsel. Id. A petitioner’s failure to meet any prong of the test

for ineffective assistance of counsel will defeat an ineffectiveness claim.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013). “A finding

that a chosen [trial] strategy lacked a reasonable basis is not warranted unless

it can be concluded that an alternative not chosen offered a potential for

success   substantially    greater     than    the   course     actually   pursued.”

Commonwealth v. Williams, 732 A.2d 1167, 1189 (Pa. 1999).

      Lewis first avers that counsel rendered ineffective assistance of counsel

by not filing a motion to suppress photographic evidence. Specifically, Lewis



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argues that police “went to his Mother’s house . . . while no one was there”

and “gathered up pictures [of Lewis]” prior to obtaining a search warrant.

      “The failure to file a suppression motion under some circumstances may

be evidence of ineffective assistance of counsel.”         Commonwealth v.

Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016) (quotation omitted).

“However, if the grounds underpinning that motion are without merit, counsel

will not be deemed ineffective for failing to so move.” Id. (quotation omitted).

Put otherwise, “trial counsel will not be considered ineffective for failing to

pursue meritless claims.” Commonwealth v. Freeland, 106 A.3d 768, 778

(Pa. Super. 2014) (citation and brackets omitted). The defendant asserting

ineffective assistance in counsel’s failure to file a motion to suppress evidence

must establish that there was no reasonable basis for not pursuing the

suppression claim, and that if the evidence had been suppressed, there is a

reasonable probability the verdict would have been more favorable. Watley,
153 A.3d at 1044 (citation omitted).

      Here, the record belies Lewis’ claim that counsel unreasonably ignored

his request to seek suppression of the photographs or that suppression of the

photographs would have compromised the Commonwealth’s ability to

establish he was the shooter. On February 8, 2010, Lewis’ trial counsel filed

an omnibus pre-trial suppression motion to suppress:            (1) Lewis’ two

statements to police; (2) photographs of Lewis he avers the police unlawfully

obtained from his home; and (3) subsequent identification of Lewis that he

avers resulted from unlawful seizure of the photos and from lineup

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identifications. On December 21, 2010, the trial court heard argument from

both parties regarding the motion; however, the record suggests Lewis’

counsel only argued to suppress the two written statements Lewis gave on

October 31, 2008. The trial court ultimately denied Lewis’ motion to suppress

his statements.

      Although trial counsel forwent arguing in favor of suppression of the

photographs, the record does not indicate his failure to do so prejudiced Lewis’

defense. At trial, multiple witnesses implicated Lewis’ involvement in Alvarez’s

murder without regard to any photographic evidence.            Specifically, the

witnesses testified that they observed Lewis chasing Alvarez down the street,

saw him wielding a handgun, and heard gunshots. N.T. Trial, 12/22/10, at

16-17, 31-42, 86-94.      Moreover, at sentencing, Lewis apologized to the

victims of the crime, further implicating his involvement in Alvarez’s murder.

N.T. Sentencing, 4/11/11, at 20 (“I humbly apologize for the life that was

taken on my behalf[.]”). See also 42 Pa.C.S.A. § 9542 (purpose of PCRA is

to afford collateral relief only to individuals convicted of crimes they did not

commit and persons serving illegal sentences).

      Trial counsel, contrary to Lewis’ assertion, did file a motion to suppress

photographs, and, in light of the evidence, his subsequent decision to forego

arguing the motion at trial did not prejudice Lewis’ defense. Roane, supra;

Williams, supra. Therefore, his first claim on appeal is meritless.

      Lewis next claims that trial counsel was ineffective for failing to request

a voluntary manslaughter instruction. Review of the record again belies Lewis’

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claim. Counsel, in fact, requested a voluntary manslaughter instruction, which

the trial court denied. N.T. Trial, 12/29/10, at 87. Therefore, Lewis’ claim is

meritless.

       Lastly, Lewis claims trial counsel rendered ineffective assistance by

failing to object to the Commonwealth’s admission of his mother’s prior

inconsistent statement at trial. Lewis’ final claim on appeal is without merit.

       At trial, Underwood testified that she was present at the time of the

underlying incident, and saw “something black” in her son’s hand. N.T. Trial,

12/22/10, at 41. However, when confronted with her written statement to

police, Underwood confirmed its accuracy in which she stated she saw her son

with a “gun in [his] hand.”          Id. at 47.   Underwood’s prior inconsistent

statement was properly admitted as substantive evidence pursuant to

Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986),3 and Commonwealth

v. Lively, 610 A.2d 7 (Pa. 1992).4 Thus, counsel had no basis upon which to
____________________________________________


3 See Brady, 507 A.2d at 71 (prior inconsistent statements of non-party
witness who was witness at trial and available for cross-examination, were
admissible as substantive evidence in prosecution for second-degree murder,
burglary, and criminal mischief where out-of-court declaration was rendered
under highly reliable circumstances assuring voluntariness, knowledge, and
understanding, where witness was extensively questioned by both prosecutor
and defense counsel as to respective validity of each statement and as to
discrepancy between prior statement and trial testimony, and where jury had
more than adequate opportunity to observe demeanor, hear explanations, and
assess credibility).
4 See Lively, 610 A.2d at 10 (prior inconsistent statement may be used as
substantive evidence only when statement is given under oath at formal legal
proceeding, or when statement has been reduced to writing signed and



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object to the Commonwealth’s admission of Underwood’s prior inconsistent

statement. Where an underlying claim is meritless, the derivative claim of

ineffective assistance of counsel for failing to object has no arguable merit.

Commonwealth v. Spotz, 47 A.3d 63, 122 (Pa. 2012). Therefore, Lewis’

final claim is meritless.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/18




____________________________________________


adopted by witness, or when statement is contemporaneous verbatim
recording of a witness' statements).


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