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J-S44040-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM JACKSON :
:
Appellant : No. 2466 EDA 2022
Appeal from the PCRA Order Entered September 7, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000312-2011
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J. *
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 16, 2025
Appellant, William Jackson, appeals from the September 7, 2022 order
dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-46. We affirm.
This Court previously summarized the relevant facts and procedural
history of this case as follows.
On March 29, 2007, at approximately 3:30 [a.m.], Vera Spruill
(Victim) heard [a] commotion outside of her home [along]
Wyalusing Avenue in the City and County of Philadelphia[,
Pennsylvania]. Victim, who was in her bedroom with her infant
child[,] went downstairs and opened her front door to see the
cause of the commotion. [Appellant], Johnny Sow[b]ell[,] and
a third man forced themselves through Victim's front door and
into her home and threw her to the floor; only Appellant and
the third male brandished firearms. All three males searched
Victim yelling, “Where the f*ck is the money!?” When Victim
responded that she had no money, all three males began to
ransack the home. They asked who else was in the home and
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S44040-23
Victim responded, “Just me and the baby.” The third male
yelled to Appellant, “We takin[’] all this sh*t . . . take [Victim]
to the basement!”
Appellant threw Victim down the basement steps. As Victim
was rising to her feet, Appellant forced her back down on her
knees. He held the gun to Victim's head and forced her to
perform oral sex on him. After a few moments, the other males
yelled to Appellant to come back upstairs, and all three exited
the house.
Victim ran upstairs to her child and called [the] police, who
arrived a short time later. Victim went with police to the district
station to file a report.
The record further reflects that Appellant, his co-defendant
Johnny Sow[b]ell, and the unidentified man stole many items
from Victim's house including a laptop computer and computer
bag. However, it was not until three years later that police
discovered Victim's property in Johnny Sow[b]ell's residence
during an unrelated investigation. Inside Victim's computer bag
was a repair ticket bearing Victim's boyfriend's name and
handwriting, and a photograph. Appellant was one of the men
in the photograph. Victim was called and later identified the
computer bag and other items as property that was stolen in
2007. When the police showed Victim the photograph that was
found inside the computer bag, she identified one of the men
as Appellant, and she stated that Appellant was the one who
forced her to perform oral sex at gunpoint. Victim also
identified Appellant from a separate photo array.
On July 23, 2012, a jury found Appellant guilty of robbery, rape,
conspiracy, and possessing an instrument of crime. On January
18, 2013, the trial court sentenced Appellant to an aggregate
term of [15] to [30] years’ imprisonment. He timely filed a
post-sentence motion, which was denied by operation of law on
May 29, 2013. Appellant then timely filed a notice of appeal.
This Court affirmed his judgments of sentence on July 15, 2014,
and our Supreme Court denied allowance of appeal on
December 26, 2014. Commonwealth v. Jackson, 105 A.3d
791 (Pa. Super. 2014) (table), allocatur denied, 105 A.3d 735
(Pa. 2014) (table).
Appellant filed a pro se PCRA petition on December 2, 2015.
Counsel was appointed and, on July 31, 2017, filed an amended
PCRA petition. In the amended petition, Appellant asserted that
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his prior counsel was ineffective for not preserving a challenge
to the weight of the evidence and that he learned that a man
named Marquis Johnson had supposedly committed the crime
with [Mr.] Sowbell and that [Appellant] had been mistakenly
identified for Johnson. After the Commonwealth filed a motion
to dismiss the petition, the PCRA court issued notice of its intent
to dismiss the petition pursuant to Pa.R.Crim.P. 907. Appellant
did not respond and, on June 4, 2018, the PCRA court dismissed
the petition.
After a timely appeal followed, new counsel was appointed after
initial PCRA counsel passed away while the appeal was pending.
On March 16, 2021, this Court affirmed in part, and vacated in
part. Commonwealth v. Jackson, [2021 WL 982759] (Pa.
Super. 2021)[.] As to our disposition, we held that the lower
court improperly dismissed the petition as untimely filed. [Id.
at *6]. We remanded for an evidentiary hearing on the
after-discovered evidence claim at which time the lower court
would assess the credibility of testimony from co-defendant
Sowbell. Id[.] As for the ineffectiveness claim, we determined
that because a weight-of-the-evidence claim lacked merit,
Appellant could not prevail on a claim that prior counsel should
have properly preserved such a claim. Id. at *9. We also
denied a legality of sentence claim as meritless and found that
Appellant waived a claim for entitlement to a remand because
the PCRA court failed to rule on a motion for the appointment
of an investigator. Id. at *10. As to the ruling on the claim
concerning the motion for an appointed investigator, we noted
that the claim was rejected without prejudice to Appellant's
ability to seek a ruling on that motion upon remand. Id.
The PCRA court granted Appellant's subsequent requests for
funds for a private investigator. On May 26 and June 30, 2022,
the court presided over a bifurcated hearing in which the court
heard testimony from [] Sowbell, Appellant's aunt (Tabitha
Jackson), Victim, and Appellant. The PCRA court summarized
the testimony from the hearing as follows:
[Appellant] first called Mr. Johnny Sow[b]ell,
[Appellant]’s [c]o-[d]efendant, to the stand. Mr.
Sow[b]ell came to know [Appellant] because
[Appellant] is a friend of his brother, James King.
Moreover, Mr. Sow[b]ell asserted that he became
acquainted with [Victim] because he regularly sold
narcotics from [Victim]’s house. On the date of the
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incident, Mr. Sow[b]ell was allegedly there prior to the
robbery because he was selling narcotics out of
[Victim]’s residence.
Mr. Sow[b]ell alleged that the robbery was staged by
[Victim]. Mr. Sow[b]ell recounts that two men came
into [Victim]’s home and, while inside of her home,
she and the two men got into an argument. [Victim]
then gave the persons who robbed her the items that
were taken from her premises and started knocking
items everywhere “ransacking” her own property.
Though the persons who robbed [Victim] took her
items, Mr. Sow[b]ell asserts that none of his items
were taken. In contrast, when [the] Commonwealth
inquired why [Victim]’s reported stolen items were
found in Mr. Sow[b]ell's home, he insisted that he
purchased the items found in exchange for drugs for
[Victim].
Mr. Sow[b]ell alleges that while the two men were in
the property, he was sitting at the table and was able
to see their faces. After [Victim] allegedly
“ransacked” her own home, the two men left, and Mr.
Sow[b]ell was instructed by [Victim] to stay at the
property. However, Mr. Sow[b]ell left [Victim]’s home
but stood outside of the residence when the police
arrived. Mr. Sow[b]ell stressed that he was not
involved with the robbery that took place at [Victim]’s
residence nor was [Appellant.] Mr. Sow[b]ell alleges
that the true perpetrators of the robbery are Marquis
Johnson and a man named “Dank,” who are both
allegedly deceased. [Following up upon Mr. Sowbell’s
testimony at Appellant’s PCRA hearing, the PCRA
court asked why Mr. Sowbell told] his attorney about
the alleged conspiracy and whether he filed a PCRA,
which Mr. Sow[b]ell answered in the affirmative.
Additionally, throughout the evidentiary hearing,
[d]efense counsel [] mention[ed] that Mr. Sow[b]ell
had a right against self-incrimination, so he did not
have to testify at trial. However, Mr. Sow[b]ell stated
the reason he did not testify was because he was told
by his lawyer that it would not look good because of
his criminal background; however, it was Mr.
Sow[b]ell's decision not to testify.
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Mr. Sow[b]ell stressed that even if he was not
subpoenaed by [d]efense [c]ounsel to appear at the
evidentiary hearing, he would have found a way to
come to [c]ourt to tell the truth since he was at the
residence during the incident. Mr. Sow[b]ell
maintains that he relayed that information to
[Appellant] prior to the conclusion of trial while they
both were in the “tank” together.
After the [PCRA c]ourt heard from Mr. Sow[b]ell,
[Appellant] testified and maintained that he never
sold drugs with Mr. Sow[b]ell and did not know Mr.
Sow[b]ell at the time of the incident. Tabitha Jackson,
[Appellant]’s aunt who lives on Wyalusing Avenue,
Philadelphia, [Pennsylvania], testified that after
[Appellant] was released from incarceration in March
2007, he lived with friends in South [Philadelphia],
and then moved [in] with her sometime in April 2007.
However, [Appellant] maintained that he lived with his
grandparents after he was released, moved in a house
with friends in South Philadelphia, and then moved in
with his aunt during the end of June or the beginning
of July in 2007. [Appellant] explained that he had to
move from the residence in South Philadelphia
because the landlord was tired of [Appellant] selling
drugs in the house after having been arrested twice.
However, Ms. Jackson stressed that [Appellant] did
not move in with his grandparents after his release
from incarceration.
Nevertheless, once Mr. Sow[b]ell and [Appellant]
were at trial, [Appellant] was told by Mr. Sow[b]ell
that he was going to testify and let the [c]ourt know
that Appellant was not involved. Additionally,
[Appellant] reached out to James King to figure out
what was going on and alleged that Mr. King did not
want to tell him the truth about the matter because
James King's juvenile family member was allegedly
involved, and that person has never been charged
with a crime. Further, while [Appellant] was in prison,
[Appellant] was told by James King that Mr. Sow[b]ell
would tell the truth once he finished his sentence.
To gain clarity, the [PCRA c]ourt questioned
[Appellant] about the timeline of [his awareness]
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J-S44040-23
about the [alleged perpetrators of the home invasion].
Thus, [Appellant] stated before he spoke to Mr.
Sow[b]ell in 2012, he contacted James King, Mr.
Sow[b]ell's brother, in October 2010 and was told that
it was someone named “Skeet” that did the robbery.
At that time, [Appellant] was not aware that “Skeet”
was a street name for Marquis. After [Appellant]
found out that information, he alleges that he told his
lawyer. [Appellant] then testifie[d] that he and Mr.
Sow[b]ell spoke in 2012 and [Appellant] was told that
Marquis and “Dank” were the alleged perpetrators.
Based on the information given to [Appellant], Mr.
Sow[b]ell was going to testify but did not. After the
matter ended, and once Mr. Sow[b]ell was released in
2018 or 2019, [Appellant] was notified by James King
that Mr. Sow[b]ell was trying to get in contact with
[Appellant]’s lawyer. The [c]ourt questioned
[Appellant], between the years of 2012 to 2019, while
he had this information, what did he do with it?
[Appellant] claimed that he was trying to figure out
the case and get people to come to [c]ourt.
Additionally, the [c]ourt questioned whether [James
King] was subpoenaed to appear at the evidentiary
hearing; [d]efense [c]ounsel stated he was not.
The [PCRA c]ourt inquired that if Johnny [Sowbell] did
not commit the crime, why would Mr. Sow[b]ell go
down for a crime he did not commit. [Appellant]
retort[ed], “Man, Johnny lying. Come on, man, that's
the made up story.” The [c]ourt then responds,
“Right. Johnny is lying right?” [Appellant] responds,
“[H]e's lying.” The [c]ourt questions if Mr. Sow[b]ell
was lying, and he was involved, what makes the
testimony that [Appellant] was not involved truthful.
[Appellant] maintains that though Mr. Sow[b]ell was
lying about the facts surrounding the incident, he was
not lying about [Appellant] not being involved.
Nevertheless, [Victim] was called to testify [and did
so via Zoom]. Ultimately, during Victim’s testimony,
she] maintained that [Appellant] is the one who
sexually assaulted her.
On March 7, 2022, the PCRA court dismissed Appellant's
petition and issued a memorandum opinion explaining its
reasons for denying the after-discovered evidence claim.
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Appellant's counsel timely appealed and was granted leave of
court to withdraw from representation. [A subsequent] counsel
was [] appointed and entered his appearance on November 2,
2022. On November 10, 2022, the PCRA court ordered
Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). [Appellant’s counsel
failed to do so].
Commonwealth v. Jackson, 2024 WL 3983469, *1-*5 (Pa. Super. 2024)
(non-precedential decision) (footnotes and most internal citations omitted)
(format modified).
At the initial stages of this appeal, we remanded the instant matter to
the PCRA court in light of Appellant’s counsel’s failure to file a Rule 1925(b)
statement. See id. at *5 (citing Pa.R.A.P. 1925(c)(3) and concluding that, by
failing to file a Rule 1925(b) statement, counsel was per se ineffective). This
Court further directed the PCRA court to appoint new counsel for Appellant
and permit newly-appointed counsel to file a Rule 1925(b) statement nunc pro
tunc. Id. at *6. Upon remand, new counsel was appointed and, on October
8, 2024, the PCRA court entered an order directing counsel to file a Rule
1925(b) statement within 21 days. See PCRA Order, 10/8/24, at *1
(unpaginated). Appellant’s counsel timely complied. See Appellant’s Rule
1925(b) Concise Statement, 10/28/24, at 1-2. Hence, the matter is now ripe
for our review.
Appellant raises the following issues for our consideration.
1. Whether the PCRA court erred in dismissing [A]ppellant’s
[PCRA] petition . . . after [A]ppellant presented clear and
convincing after-discovered evidence that (1) he was not
present at the robbery; (2) he was misidentified by the
[Victim]; and (3) a second perpetrator committed the crime,
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J-S44040-23
all of which proves his innocence and would have exonerated
him had it been available at trial[?]
2. Whether the PCRA court erred in allowing the [Victim] to
proceed in testifying, over objection, via Zoom with technical
difficulties while [she] had other people in the room with her?
3. Whether PCRA counsel was ineffective for (1) not presenting
expert testimony o[n] issues relating to eyewitness
misidentification at the evidentiary hearing; and (2) not
providing the [PCRA c]ourt with a legal argument, after being
requested to do so, at the close of the evidentiary hearing?
Appellant’s Brief at 6-7.
Our Supreme Court previously explained:
In reviewing the grant or denial of PCRA relief, an appellate
court considers whether the PCRA court's conclusions are
supported by the record and free of legal error. Moreover, the
factual findings of a post-conviction court, which hears evidence
and passes on the credibility of witnesses, should be given
deference. A PCRA court passes on witness credibility at PCRA
hearings, and its credibility determinations should be
[accorded] great deference by reviewing courts. Indeed, one
of the primary reasons PCRA hearings are held in the first place
is so that credibility determinations can be made.
***
We will not disturb the findings of the PCRA court if they are
supported by the record, even where the record could support
a contrary holding. [An appellate court's] scope of review is
limited to the findings of the PCRA court and the evidence on
the record of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party.
Commonwealth v. Flor, 259 A.3d 891, 910-911 (Pa. 2021) (quotation
marks, citations, and corrections omitted).
In his first issue, Appellant contends that the PCRA court erred in
dismissing his after-discovered evidence claim. Appellant argues that he “did
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not know that [Mr.] Sowbell was willing to testify until . . . 2021” and, in turn,
allegedly exonerate Appellant by explaining that someone else committed the
instant crime. Appellant’s Brief at 14. This, per Appellant, “qualifies as
after-discovered evidence” and the PCRA court erred in concluding otherwise.
Id. We disagree.
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “unavailability at the time of trial of
exculpatory evidence that has subsequently become available and would have
changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.A.
§ 9543(a)(2)(vi).
To obtain relief based on after-discovered evidence, an appellant must
show that the evidence:
(1) could not have been obtained prior to the conclusion of the
trial by the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to
impeach the credibility of a witness; and (4) would likely result
in a different verdict if a new trial were granted.
Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (citation
omitted). To determine whether the evidence is “of such nature and
character” to compel a different verdict in a new trial, a court should consider
“the integrity of the alleged after-discovered evidence, the motive of those
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offering the evidence, and the overall strength of the evidence supporting the
conviction.” Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super.
2010).
Herein, the PCRA court determined that Appellant’s after-discovered
evidence claim failed for two reasons. First, it held that it was “clear that
[Appellant] knew about the information,” i.e., potential testimony pertaining
to the identity of the perpetrators, “before his trial concluded.” PCRA Court
Opinion, 12/10/24, at 9. Our review confirms the PCRA court’s findings as
Appellant, himself, testified that “prior to trial,” he was informed of the identity
of another individual who allegedly committed the robbery in question. See
N.T. Hearing, 6/30/22, at 52 (Appellant admitting that in October 2010 he
was told an individual with the “street name, Skeet” committed the instant
crime). Second, the PCRA court found Mr. Sowbell’s testimony to be
incredible. See PCRA Court’s Opinion, 12/10/24, at 10 (“Additionally, by
[Appellant’s] admission, Mr. Johnny Sowbell was untruthful in his testimony
to this court concerning the facts surrounding the robbery”). In rejecting the
credibility of Mr. Sowbell’s version of events, the PCRA court ostensibly
determined that the alleged after-discovered evidence – Mr. Sowbell’s
testimony – “would not compel [a] different verdict in [a] new trial.” Padillas,
997 A.2d at 365 (citation omitted). We are bound by the PCRA court’s
credibility determinations where they find support in the record. See
Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa. 2004) (“[W]e note
that we are bound by the PCRA court's credibility determinations where there
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is record support for those determinations.”). We conclude that the PCRA
court’s findings bear record support and, thus, affirm its decision to dismiss
Appellant’s claim of after-discovered evidence.
In his second issue, Appellant challenges the PCRA court’s decision to
allow the Victim to testify during the evidentiary hearing via Zoom. Appellant
contends that the court’s decision to allow the Victim to testimony by video
violated Appellant’s rights under the Confrontation Clause. We disagree.
This Court previously explained:
The Confrontation Clause in the Sixth Amendment to the United
States Constitution provides that “in all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. CONST. amend. VI.6. In
Crawford v. Washington, 541 U.S. 36 (2004), the United
States Supreme Court ruled that where the prosecution
presents testimonial hearsay, the only indicium of reliability
sufficient to satisfy the Sixth Amendment and permit the
admission of the hearsay is “confrontation.” Id. at 68–69[.]
According to our Supreme Court, “[a]t its most basic level, the
Sixth Amendment's Confrontation Clause seeks to ensure that
the trial is fair and reliable by preserving an accused's right to
cross-examine and confront the witnesses against him.”
Commonwealth v. Collins, 888 A.2d 564, 575 (2005). The
focus of claims of violation of this constitutional right is on the
fairness and reliability of the criminal defendant's trial. [Our
review demonstrates that there is] no authority holding that a
Confrontation Clause challenge may be asserted in non-trial
proceedings, including during PCRA evidentiary hearings. See,
e.g., United States v. Stone, 432 F.3d 651, 654 (6th
Cir.2005) (because Crawford focused only on testimonial
evidence at trial, “it does not change our long-settled rule that
the Confrontation Clause does not apply in sentencing
hearings”), cert. denied, 549 U.S. 821 (2006). To the contrary,
on at least two occasions our Supreme Court has held that
Confrontation Clause issues may not be [applied to witness
testimony at hearings in the context of] collateral proceedings.
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J-S44040-23
See Commonwealth v. Collins, 888 A.2d 564, 576 n. 15 (Pa.
2005) (“Crawford, however, is unavailable to claimants on
collateral review[.]”); Commonwealth v. Gribble, 863 A.2d
455, 464 n. 7 (Pa. 2004) (“We need not concern ourselves with
that question, as this is a collateral attack, and Crawford does
not apply.”).
Commonwealth v. Wantz, 84 A.3d 324, 337 (Pa. Super. 2014) (parallel
citations and footnote omitted).
Our review of the certified record reveals that, initially, Appellant did not
object to the Victim’s appearance via Zoom. The Commonwealth indicated
that the Victim lived “a[] thousand miles” away from the courthouse, thereby
necessitating such testimony. N.T. Hearing, 6/30/22, at 65. Appellant’s
counsel indicated a preference for live testimony but “under[stood] the
circumstances of the case.” Id. Thereafter, Appellant affirmed that he was
“okay” with the Victim testifying via Zoom. Id. at 67. Over the course of her
testimony, however, it became apparent to those at the hearing that others
were present in the room with Victim while she testified. The relevant
exchanges between the PCRA court, Appellant’s counsel, the Commonwealth
and the Victim are as follows.
[Defense Counsel]: Your Honor, I object to the fact that there
is other another person in the room.
[Commonwealth]: I agree. [Victim], please, can you not have
any conversation with anyone that’s in your house? And can
you please [not] let anyone speak? And can you please just
answer the questions that are put before you?
[Victim]: I did [not] even know he pulled up.
[Commonwealth]: It [is] just that we want the Judge to hear
you.
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[Victim]: I [am] sorry, yes.
[The court]: Let her know that counsel is going to
cross-examin[e] her.
[Commonwealth]: [Victim]?
[Victim]: Yes.
[Commonwealth]: [Appellant’s] attorney is going to ask you
some questions now, okay?
[Victim]: Yes.
[Defense Counsel]: Your Honor, at this time I'm going to have
to object to her testifying via Zoom. I want to cross-examine
her. My concerns is that there are other people in the room,
and they are talking and making comments –
[The court]: We [will] stop it. This thing needs to proceed. [So
far, the extraneous comments may have affected the emotions
but not the testimony]. You [are] up to bat for
cross-examination. She already understands that other people
should leave the room. It just should be her talking to you.
That [has] been made clear. So, let’s move forward.
[Defense Counsel]: This is what I do want to do, though.
[The court]: Okay.
[Defense Counsel]: I do want to make an objection with her
proceeding [] via Zoom because the anticipation was that, this
would be a little easier with regards to maybe on a screen or
that it was very clear that she [is] not to have other people in
the room. So, at this point I would place an objection.
[The court]: Your objection is noted. I wish to continue with
your cross-examination.
[Defense Counsel]: I will. And Your Honor, can I just have one
brief moment?
Id. at 74-75.
[Defense Counsel]: [Victim], can you hear me?
[Victim]: Loud and clear.
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[The court]: There are people there.
[Victim]: There is no one there. I’m talking to you.
[The court]: I heard voices in the background. [Victim], this is
Judge Vincent Johnson. I need you to make sure there is no
one else in the room while you're doing this, okay?
[Victim]: Okay.
[The court]: Is the room clear?
[Victim]: I hear. Come on. Talk to me.
[Defense Counsel]: [Victim], can you hear me now?
[Victim]: I've been trying to hear you. Yes, sir.
[Defense Counsel]: Who is in the room with you right now?
[Victim]: Who is in the room? God is.
[Defense Counsel]: Say that again.
[The court]: “God is,” she said.
[Victim]: What does that have to do with the price of tea in
China then this man rapping [sic] me and my baby?
Id. at 76.
[The court]: [Victim], I [am] going to let you know that my law
clerk is looking at the screen and notices that there is a
gentleman in the room with you. I [am] going to kindly ask you
to ask that gentleman to leave, so [you can] testify.
[Victim]: They are just warming up some food in the
microwave.
[The court]: All right. Thank you. It [is] in her home. There
are people that are there. We saw it on the camera. We
brought it to your attention. The person left the room. You can
continue your cross-examination.
[Defense counsel]: Note our respectful objection.
[The court]: Your respectful objection is noted.
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J-S44040-23
Id. at 88-89.
[Defense Counsel]: Yup, there’s somebody in the back.
[The court]: There is somebody in the back. [Victim], I [have]
asked you before not to have anyone present.
[Victim]: That’s my son. He [is] only 14 years old.
[The court]: Thank you for identifying him. I do [not] want
anyone in the room.
[Victim]: Can you get out of the room, son? I hate to talk to
you like this. I [am] yo momma [sic]. We trying to deal with
that case what they did to us years ago. Once again --
[The court]: Okay.
[Victim]: He is gone. Now, what were you saying?
Id. at 97.
The foregoing demonstrates that Appellant eventually objected to the
Victim providing testimony via Zoom and, ostensibly, did so based upon the
assertion that it violated his Sixth Amendment rights. See id. at 74
(Appellant’s counsel objecting, stating that he wanted to “cross-examine
her.”). This Court has consistently recognized, however, that a criminal
defendant does not enjoy the Sixth Amendment right of confrontation during
collateral proceedings. See Wantz, supra. Hence, Appellant cannot obtain
relief on this basis. Moreover, to the extent that Appellant takes issue with
the fact that, at times, other individuals were present during the Victim’s
testimony, it is apparent that the PCRA court acted swiftly to ensure that it
did not affect the Victim’s testimony. Accordingly, we conclude that
Appellant’s claim fails.
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In his third issue, Appellant raises a layered claim of ineffective
assistance of counsel.1 More specifically, Appellant contends that, because
the instant matter hinged on the Victim’s identification of Appellant as her
attacker, trial counsel’s failure to present expert testimony discussing
“eyewitness misidentification” constituted ineffective assistance. Appellant’s
Brief at 23. Appellant also faults former PCRA counsel to raise this issue by
way of an amended PCRA petition. 2 See id. at 26 (claiming that PCRA counsel
“was ineffective for failing to raise this argument in an amended petition and
at the evidentiary hearing”). Appellant’s claim fails.
This Court has recently determined:
To be eligible for relief on layered claims of ineffective
assistance of counsel, a petitioner must plead and prove that:
(1) trial counsel was ineffective for a certain action or failure to
act; and (2) subsequent counsel was ineffective for failing to
raise trial counsel's ineffectiveness. As to each relevant layer
of representation, a petitioner must meet all three prongs of the
[] test for ineffectiveness. A failure to satisfy any of the three
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1 In the Questions Presented section of his brief, Appellant contends PCRA
counsel was ineffective for failing to “provide the [PCRA c]ourt with a legal
argument, after being requested to do so, at the close of the evidentiary
hearing[.]” Appellant’s Brief at 7. Appellant, however, fails to develop this
claim in his appellate brief. Accordingly, we deem this issue to be waived for
lack of development. See Commonwealth v. Noss, 162 A.3d 503, 509 (Pa.
Super. 2017) (finding waiver where appellant failed to develop the issue in his
brief), citing Lackner v. Glosser, 892 A.2d 21, 29 (Pa. Super. 2006)
(“[A]rguments which are not appropriately developed are waived[.]”).
2 Appellant preserved this layered claim of the ineffective assistance by raising
this issue at the first opportunity to do so, specifically in his 1925(b) statement
and his brief filed with this Court on appeal. See Appellant’s Rule 1925(b)
Concise Statement, 10/28/24, at 2; see also Commonwealth v. Bradley,
261 A.3d 381 (Pa. 2021).
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prongs [] requires rejection of a claim of ineffective assistance
of trial counsel, which, in turn, requires rejection of a layered
claim of ineffective assistance of subsequent counsel.
Thus, if the petitioner cannot prove the underlying claim of trial
counsel ineffectiveness, then petitioner's derivative claim of
subsequent counsel ineffectiveness of necessity must fail, and
it is not necessary for the court to address the other two prongs
of the [ineffectiveness] test, i.e., the reasonable basis and
prejudice prongs as applied to subsequent counsel.
Commonwealth v. Dickerson, 2024 WL 3372629, at *3 (Pa. Super. 2024)
(non-precedential decision) (internal citations, quotations, and original
brackets omitted).3
Upon review, we conclude that Appellant’s claim fails. Appellant’s trial
occurred in 2012. At that time, expert testimony regarding eyewitness
identification was inadmissible in this Commonwealth. See, e.g.,
Commonwealth v. Abdul-Salaam, 678 A.2d 342 (Pa. 1996);
Commonwealth v. Simmons, 662 A.2d 621 (Pa. 1995); Commonwealth
v. Spence, 627 A.2d 1176 (Pa. 1993). Indeed, our Supreme Court’s decision
which reversed this evidentiary prohibition was not issued until 2014. See
Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014). This Court has
consistently held that “[c]ounsel cannot be deemed ineffective for failing to
predict developments or changes in the law.” Commonwealth v. Spotz, 896
A.2d 1191, 1228 (Pa. 2006) (citation omitted). Because trial counsel cannot
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3 See Pa.R.A.P. 126(b) (we may rely on unpublished decisions of this Court
filed after May 1, 2019 for their persuasive value).
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be said to be ineffective on this basis, Appellant’s layered claim challenging
PCRA counsel’s performance also fails.
Based upon all of the foregoing, we affirm the PCRA court’s order
dismissing Appellant’s PCRA petition.
Order affirmed.
Judge Colins did not participate in the consideration or decision of this
case.
Date: 9/16/2025
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Case Information
- Court
- Pa. Super. Ct.
- Decision Date
- September 16, 2025
- Status
- Precedential