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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ALEXANDER FULTON

                            Appellant                 No. 2326 EDA 2015


                   Appeal from the PCRA Order June 19, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009044-2009


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                            FILED FEBRUARY 07, 2017

        Alexander Fulton appeals from the order entered June 19, 2015, in the

Court of Common Pleas of Philadelphia County, that dismissed without a

hearing his first petition filed pursuant to the Pennsylvania Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. Fulton seeks relief from the

judgment of sentence to serve an aggregate term of 5 to 10 years’

incarceration followed by 10 years’ probation, after he was convicted in a

jury trial1 of conspiracy, possession of an instrument of crime, simple

assault, robbery, and impersonating a public servant.2 Fulton contends trial
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 Fulton had previously proceeded to a jury trial that ended in a mistrial.
See N.T., 6/10/2010, at 155.
2
    18 Pa.C.S. §§ 903, 907(a), 2701(a), 3701(a)(1)(ii), 4912.
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counsel was ineffective for failing to (1) raise a double jeopardy claim

following a mistrial, (2) request a lineup prior to the preliminary hearing,

and (3) object to the trial court’s jury instruction.3 See Fulton’s Brief at 6.

Based upon the following, we affirm.

       Fulton’s convictions arise from a home invasion robbery. The facts of

this case are set forth in this Court’s decision in Fulton’s direct appeal. See

Commonwealth v. Fulton, 64 A.3d 25 (Pa. Super. 2012) (unpublished

memorandum), appeal denied, 68 A.3d 907 (Pa. 2013). Furthermore, the

PCRA court has fully summarized the procedural history relevant to this

appeal. See PCRA Court Opinion, 1/4/2016, at 1–3. Therefore, we will not

restate the background of this case, but will proceed directly to the issues

raised in this appeal.

       Our review is guided by the following legal principles:

       We review a ruling by the PCRA court to determine whether it is
       supported by the record and is free of legal error.
       Commonwealth v. Blakeney, 108 A.3d 739, 748-49 (Pa.
       2014), citing Commonwealth v. Spotz, 616 Pa. 164, 47 A.3d
       63, 75 (Pa. 2012). Our standard of review of a PCRA court’s
       legal conclusions is de novo. Id. at 749.

                                           ****

       In analyzing such claims, we begin with the presumption counsel
       is effective. Commonwealth v. Robinson, 623 Pa. 345, 82
       A.3d 998, 1005 (Pa. 2013). To prevail on an ineffectiveness
       claim, appellant must satisfy, by a preponderance of the
       evidence, the performance and prejudice standard set forth in
____________________________________________


3
  Fulton timely complied with the PCRA court’s order to file Pa.R.A.P.
1925(b) concise statement.



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     Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
     L. Ed. 2d 674 (1984). In Pennsylvania, we have applied
     Strickland by looking to three elements an appellant must
     establish: (1) the underlying claim has arguable merit; (2) no
     reasonable basis existed for counsel’s actions or failure to act;
     and (3) appellant suffered prejudice as a result of counsel’s
     error, with prejudice measured by whether there is a reasonable
     probability that the result of the proceeding would have been
     different. See Commonwealth v. Pierce, 515 Pa. 153, 527
     A.2d 973, 975 (Pa. 1987).

                                    ****

     A court is not required to analyze the elements of an
     ineffectiveness claim in any particular order of priority; if a claim
     fails under any necessary element of the Strickland test, the
     court may proceed to that element first. Robinson, 82 A.3d at
     1005, citing Strickland, supra; Commonwealth v. Albrecht,
     554 Pa. 31, 720 A.2d 693, 701 (Pa. 1998).


                                    ****

     [T]he PCRA court has discretion to dismiss a petition without a
     hearing when the court is satisfied “‘there are no genuine issues
     concerning any material fact, the defendant is not entitled to
     post-conviction collateral relief, and no legitimate purpose would
     be served by further proceedings.’” Commonwealth v. Roney,
     622 Pa. 1, 79 A.3d 595, 604 (Pa. 2013), quoting
     Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (Pa.
     2011), quoting Pa.R.Crim.P. 909(B)(2). “To obtain reversal of a
     PCRA court’s decision to dismiss a petition without a hearing, an
     appellant must show that he raised a genuine issue of fact
     which, if resolved in his favor, would have entitled him to relief,
     or that the court otherwise abused its discretion in denying a
     hearing.” Roney, 79 A.3d at 604-05, quoting Commonwealth
     v. D'Amato, 579 Pa. 490, 856 A.2d 806, 820 (Pa. 2004).

Commonwealth v. Hannibal, ___ A.3d ___, ___ [No. 705 CAP, 2016 Pa.

LEXIS 2663, at *9, *13-16] (Pa. Nov. 22, 2016).

     Fulton first contends trial counsel was ineffective for failing to raise a

double jeopardy claim after his first trial ended in a mistrial. Fulton


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maintains that the mistrial was caused by prosecutorial misconduct or

government misconduct when its police witness, Detective Joseph Cremen,

referenced Fulton’s prior arrest record in answer to a question posed by the

District Attorney. See N.T., 6/10/2010, at 134 (“Q. What specific address --

where did you get that information regarding that address [where a search

warrant was executed]? A. I believe this … part of the defendant’s arrest

record had that address --”).   Fulton argues: “The District Attorney knew

that the address was procured from [Fulton’s] arrest record because the

Search Warrant was executed by the police prior to [Fulton’s] arrest and

after the procurement of his mug shot.” Fulton’s Brief at 13.

     “The double jeopardy clause of the Pennsylvania Constitution prohibits

retrial of a defendant not only when prosecutorial misconduct is intended to

provoke the defendant into moving for a mistrial, but also when the conduct

of the prosecutor is intentionally undertaken to prejudice the defendant to

the point of the denial of a fair trial.” Commonwealth v. Basemore, 875

A.2d 350, 358 (Pa. Super. 2005), quoting Commonwealth v. Smith, 615

A.2d 321, 325 (Pa. 1992). “In order to raise double jeopardy implications,

prosecutorial misconduct must be deliberate, undertaken in bad faith and

with a specific intent to deny the defendant a fair trial.” Id., quoting

Commonwealth v. Santiago, 654 A.2d 1062, 1085 (Pa. Super. 1994).

Furthermore, “gross negligence on the part of the Commonwealth is never a

sufficient basis upon which to bar retrial on double jeopardy grounds.”




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Commonwealth v. Kearns, 70 A.3d 881, 886 (Pa. Super. 2013) (emphasis

in original).

       Here, trial counsel moved for a mistrial, stating he did not blame the

prosecutor,4 after which the prior trial judge stated to the prosecutor:

       It is totally clear that you were not gunning for that answer in
       any way, shape or form. It was clear to [trial counsel] because
       he said it. It was clear to me that you were not attempting to
       get that information. Setting that aside, something jumped out
       of his [Detective Cremen’s] mouth --.”

N.T., 6/10/2010, at 136.

       The prosecutor told the court Detective Cremen’s answer “was a

misspeak, I believe it was never intentional in this case, based on the

totality of the circumstances and how long Detective Cremen had been

speaking in this case.” Id. at 138. The prosecutor opposed the motion for


____________________________________________


4
  In requesting a mistrial, trial counsel stated, “I don’t blame the DA for
this.” N.T., 6/10/2010, at 135. After trial counsel finished making his
request, the prosecutor stated:

       Your Honor, if I may address the matter.       I believe the
       information to my question was, quote, unquote, in regards to
       getting information which was elicited during the course of
       interviews and 229s. Where -- just so you know where my
       pattern of question was going --

Id. at 135–136.

      The trial court then called upon trial counsel, and trial counsel
reiterated, “I don’t blame him at all.” Id. at 136.




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mistrial, and asked the trial court to issue a limiting instruction. See N.T.,

6/10/2009, at 143.

      Ultimately, the trial court granted the motion for mistrial and, in doing

so, emphasized:

      I do want to make clear, however, it is very clear to me that the
      statement made by Detective Cremen was in no way, shape, or
      form anything [the prosecutor] expected to come out of his
      mouth. [The prosecutor] has acted completely professionally
      from start to finish in this case. So it is not something that I
      would blame or hold against the prosecution in this case.

      I frankly think it just jumped out of Detective Cremen’s mouth,
      you know, I don’t think he was trying to get that in. But I’m
      absolutely 100 percent confident that this was not something
      that the prosecution was intending to have happen. ….

N.T., 6/10/2010, at 150–151.

      The PCRA court, in support of its decision to dismiss the instant PCRA

petition, concluded that Fulton’s ineffectiveness issue based on counsel’s

failure to seek to bar retrial was meritless.    The PCRA court opined, “At

worst, it might be argued that, in light of his experience as a police officer,

Detective Cremen’s reference to [Fulton’s] ‘arrest record’ may have

amounted to negligence on his part. This alone, however, in light of Kearns,

is insufficient to bar retrial.”   PCRA Court Opinion, 1/4/2016, at 15.    The

PCRA Court further opined that “[a] careful review of the record fails to

reveal that any course of conduct on the part of the Commonwealth

intended to force [Fulton] into moving for a mistrial,” and that “the record

fully supports Judge Rau’s conclusion that she was ‘absolutely 100 percent


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confident that this was not something that the prosecution was intending to

have happen.’” Id.

      Our review finds the PCRA court’s conclusions are supported by the

record. Because the record does not demonstrate misconduct on the part of

the prosecution, a motion to dismiss on double jeopardy grounds would

properly have been denied.      See Basemore, supra. Accordingly, Fulton’s

underlying issue is without merit and, therefore, no relief is warranted on

this ineffective claim of ineffectiveness.        See Commonwealth v. Jones,

912 A.2d 268, 278 (Pa. 2006) (“Counsel will not be deemed ineffective for

failing to raise a meritless claim.”).

      In his second issue, Fulton claims trial counsel was ineffective for

failing to request a line-up for eyewitness and victim James Scheppach prior

to   the   preliminary   hearing.        Fulton   maintains   Scheppach’s   in-court

identification was tainted because Scheppach had told police he did not see

the second assailant, and then identified him in a photo array, stating that

he “If I had to choose, I’d say this guy … from his physical stature which

includes his shoulders and ears,” and that he was “80% sure.” Fulton’s Brief

at 14, citing PCRA Exhibits.

      Regarding this claim, it is well settled that

           “an accused does not have a constitutional right to a line-
           up and the suggestiveness of a courtroom identification is
           only one factor to be considered in determining the
           reliability of the identification evidence. Moreover, this
           jurisdiction has ‘declined to accept a per se rule that a
           pre-trial, pre-hearing line up is mandatory in all cases.’ A

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          fortiori, counsel’s failure to request a lineup or failure to
          object to identification testimony is not per se ineffective
          assistance.” [We must then] review the totality of the
          circumstances to see if there was a reliable independent
          basis for the in-court identification by the [crime] victim.

      Commonwealth v. Edwards, 2000 PA Super 330, 762 A.2d
      382, 391 (Pa. Super. 2000) (discussing Commonwealth v.
      Kenon, 333 Pa. Super. 366, 482 A.2d 611, 613-14 (Pa.Super.
      1984)) (citations omitted). To assess the totality of the
      circumstances, we should consider “the opportunity of the
      witness to view the criminal at the time of the crime, the
      witness’ degree of attention, the accuracy of his prior description
      of the criminal, the level of certainty demonstrated at the
      confrontation, and the time between the crime and the
      confrontation.” Id. (quoting Manson v. Brathwaite, 432 U.S.
      98, 114, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977)).

Commonwealth v. Burton, 770 A.2d 771, 787 (Pa. Super. 2001).

      The PCRA court rejected Fulton’s claim that trial counsel was

ineffective in failing to request a line-up, explaining:

      This Court has already addressed the sufficiency and accuracy of
      the identification testimony introduced at trial in its prior
      1925(b) Opinion [relating to Fulton’s direct appeal]. (Court’s
      Exhibit “A”).    As previously noted, on May 1, 2009, “Mr.
      Scheppach clearly identified [Fulton] as the second man to enter
      his home” and that “[d]espite vigorous cross-examination, Mr.
      Scheppach remained steadfast in his identification of [Fulton].”
      Additionally, “Detective Cremen corroborated this testimony
      when he testified that Mr. Scheppach identified [Fulton] within
      ten seconds of being shown the photo array containing [Fulton’s]
      photograph, on May 1, 2009.” This is especially telling since this
      identification was made within a week of the robbery and led to
      [Fulton’s] arrest over a week later during a routine traffic stop.
      Finally, “Mr. Steppach’s identification testimony was further
      supported by the testimony of Detective Hartman, who testified
      that the latent print he recovered from the bogus document left
      behind was that of [Fulton].” (Court’s Exhibit “A,” pgs. 8, 9).

      [Fulton’s] bald assertion clearly fails to meet his burden of
      showing that counsel’s actions were unreasonable and resulted

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       in prejudice to him, that is, it fails to convince the Court that had
       trial counsel requested a lineup, knowing of the prior
       identification, the result would have been different.             The
       evidence at trial argues to the contrary, especially in light of Mr.
       Scheppach’s positive identification of [Fulton] prior to his arrest,
       supported by fingerprint identification. Reviewing the totality of
       the circumstances, trial counsel cannot be faulted or found
       ineffective for not requesting a lineup. “Counsel will not be
       deemed ineffective for failing to raise a meritless claim.”
       Commonwealth v. Marinelli, 910 A.2d 672, 680 (Pa. 2006). …

PCRA Court Opinion, 1/4/2016, at 11–12.

       Based on our review, we agree with the PCRA court’s sound analysis.

Mr. Scheppach testified that a week after the incident, he made an

identification from the photo array in under 60 seconds, and was “extremely

confident” at that time that he had identified one of the men that came into

his house from the photo array.         N.T., 8/29/2011, at 33.      In addition,

Detective Cremen testified that when Mr. Scheppach was shown the photo

array identified Fulton as one of the assailants “within 10 seconds.” Id. at

155.

       Moreover, Mr. Scheppach stated at trial that having seen Fulton in

person in court, he was “very confident” he had identified the correct person

he had seen at his house. Id. at 36. Mr. Scheppach testified he had three

opportunities to observe Fulton: first, through the peephole; second, on the

sidewalk, 18 inches below as Mr. Scheppach stood inside his house; and

third, when Mr. Scheppach was on his knees in the foyer of his house with

the lights on.    Id. at 36–37. In addition, Fulton’s fingerprints were found

on the false document that assailants used to gain entry to Scheppach’s

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home. Id. at 148. Based on the fingerprint evidence, Mr. Scheppach was

shown the photo array by Detective Cremen. Id.

      The record reveals there was a reliable independent basis for the in-

court identification. Therefore, Fulton’s ineffectiveness claim lacks arguable

merit. Moreover, Fulton cannot show prejudice, i.e., that the result would

have been different had counsel requested a line-up, since, as the PCRA

court pointed out, Mr. Scheppach remained confident in his photo array

identification at trial. Accordingly, Fulton’s second ineffectiveness claim fails.

      Finally, Fulton argues trial counsel was ineffective in failing to object to

a portion of the trial court’s charge to the jury.

      When reviewing a challenge to a jury instruction, we must review the

jury charge as a whole to determine if it is fair and just. Commonwealth v.

Baker, 963 A.2d 495, 507 (Pa. Super. 2008). A trial court has broad

discretion in phrasing its jury instructions and can choose its own words as

long as the law is clearly, adequately, and accurately described to the jury.

Commonwealth v. Ly, 980 A.2d 61, 88 (Pa. 2009). The trial court commits

an abuse of discretion only when there is an inaccurate statement of the

law. Baker, 963 A.2d at 507. We will not review a charge by taking isolated

comments out of context. Commonwealth v. Fisher, 813 A.2d 761, 769

(Pa. 2002).




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      Here, Fulton maintains trial counsel should have objected to the trial

court’s jury instruction because the trial court prefaced the jury instruction

on identification, stating:

      The defense in this case, as has been asserted several times, is
      a defense of identification. That’s been true throughout the trial.

      In his opening, you’ll recall [trial counsel] said no one is
      contesting that the light-skinned man with tattoos pointed a gun
      and committed a robbery. His defense in this case, this man’s
      defense in this case, is all about identification, that he was not
      the second man.

N.T., 8/29/2011, at 79. Fulton claims: “The [c]ourt did not give the opinion

of the guilt of [Fulton]. It did however take out of the province of the jury a

decision as to the sufficiency of the evidence, whether the matter was

fabricated, or in the very least, find [Fulton] guilty of a lesser graded

offense.” Fulton’s Brief at 16.

      Based on our review, we conclude this argument presents no basis

upon which to disturb the decision of the PCRA court that denied relief on

this claim. The trial court’s remarks simply stated the defense presented by

trial counsel to explain the jury instruction that it was about to give

regarding identification.     Furthermore, the trial court repeatedly instructed

the jurors that regarding the evidence, they were the sole factfinders. The

trial court also properly instructed the jury regarding the Commonwealth’s

burden of proof and the elements of the crimes charged.            Finally, Fulton

ignores the fact that the jury found him not guilty of burglary.




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      At the beginning of the jury charge, the trial court instructed the jury,

“It is for you and you alone to decide this case based on the evidence that

was presented from the witness stand and in accordance with the

instructions I am now going to give you.” N.T., 9/29/2011, at 68–69. The

trial court also told the jury:

      [I]f I have said or done anything during the course of the trial or
      if I say or do anything in this closing instruction that indicates to
      you that I have an opinion about any witness or about our
      verdict, I want to tell you two things. Number one, I have no
      opinion about either one, the witness or your verdict.

      The second thing is that if I had an opinion, it would be the least
      well-informed opinion in this courtroom because unlike you, I
      can hardly see the witnesses when they’re testifying.

      The only opinion that matters is your opinion.

Id. at 69–70. The trial court further instructed the jury, “As judges of the

facts, you are the sole judges of the credibility of the witnesses and their

testimony.    This means you must judge the truthfulness and accuracy of

each witness’ testimony and decide whether to believe all or part or none of

that testimony.”    Id. at 74.    Additionally, the trial court stated:   “While

you’re judging the credibility of each witness, you’re likely to be judging the

credibility of other witnesses or evidence. If there’s a real irreconcilable

conflict, it’s up to you to decide which, if any, conflicting evidence or

testimony you believe.” Id. at 76.

      After the trial court made the statement at issue, it instructed the jury

in accordance with the standard instruction for identification testimony. See


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Pa.   Suggested    Standard    Jury   Instruction   (SSJI)      (Crim)   §   4.07B,

“Identification Testimony – Accuracy in Doubt.” Specifically, the trial court

told the jury:

      Identification testimony must be received with caution if the
      witnesses, because of bad position or lighting or other reasons,
      did not have a good opportunity to observe the criminal, if the
      witness in his testimony was not positive as to identity, or if the
      witness identification testimony was weakened by qualifications
      or hedging.

      If you believe that one or more of these factors are present,
      then you must consider with caution the witness’ testimony
      identifying the defendant as the person who committed this
      crime, in this case, as the second man.

N.T., 8/29/2011, at 79-80.

      Finally, in closing, the trial court reminded the jury:

      You, the jurors, are the sole judges of the facts … Your decision
      in this case, as in every case that we hear in this courthouse, is
      a matter of considerable importance.

      Remember, that it is your responsibility as jurors to perform
      your duties and to reach your verdict based on the evidence as it
      was presented during the trial.

Id. at 104–105.

      When read as a whole, the jury instructions adequately present the

law. Baker, supra. As such, there is no basis upon which Fulton can

demonstrate that the court’s statement constituted an abuse of discretion.

Therefore, Fulton’s claim lacks merit, and it follows that counsel was not

ineffective in failing to object to the charge.      In any event, the court’s




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remarks cannot have prejudiced Fulton since the jury acquitted him on the

burglary charge.

     Accordingly, we affirm.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/2017




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