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[U] Commonwealth v. Sparks

Superior Court of Pennsylvania

February 20, 2014



Appeal from the PCRA Order May 4, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001327-2007




David Sparks appeals from the May 4, 2012 order denying his first counseled PCRA petition. We affirm.

The PCRA court carefully summarized the procedural and factual background of this matter as follows.

On May 23, 2008, following a bench trial, appellant was convicted of first degree murder, firearms not to be carried without a license, possession of a firearm by a minor and possession of an instrument of crime, and sentenced to life in prison without parole for the shooting death of Gary Hall. The evidence at trial established that on September 4, 2006 around 11:35 PM, officers responded to radio calls of a shooting in the area of the 1700 block of Wingohocking Street in the City and County of Philadelphia. Philadelphia Police Officer Jason Reid and his partner Officer Colville arrived at the scene to find a very large chaotic crowd of about 50-100 people, including several juveniles. Officer Reid exited his vehicle and was informed that a male, later identified as Gary Hall (Hall), was shot and had been transported to the hospital in a private vehicle. Officer Reid notified police radio that the shooting was founded then began to push back the crowd and cordon off the area and hold it for the Crime Scene Unit (CSU). Officer Reid observed numerous shell casings, a black holster and a silver bicycle in fro[nt] of 1728 Wingohocking Street. Hall was pronounced dead at Einstein Hospital at 11:44 PM. The subsequent autopsy determined that Hall's death was caused by multiple gunshot wounds. One bullet was recovered from the body and submitted to the Police Laboratory for analysis.
Officer Lamont Fox of the CSU processed the crime scene. He photographed the area, prepared a scale sketch and collected ballistic evidence. He recovered nine .40 caliber fired cartridge casings (FCC's), a .40 caliber bullet, a bullet core and a black holster, all of which were placed on a property receipt and submitted for analysis. A latent fingerprint exam performed on the FCC's and the holster was negative. Microscopic comparison of the ballistic evidence determined that all of the FCC's were fired from the same firearm and that the bullet was a full metal jacket with characteristics of six lands and grooves with a right hand twist. The bullet core was unsuitable for microscopic comparison. The bullet recovered from Hall also had six lands and grooves with a right hand direction of twist but there were insufficient corresponding microscopic markings to permit a positive identification or to determine that the bullet specimens were fired from the same firearm. In addition, DNA comparison of blood from Hall and a swab from appellant with the black holster excluded both appellant and Hall as sources of DNA on the holster.
Lieutenant Aisha Perry of the 39th Police District, arrived shortly after 11:35 PM, noticed a video surveillance camera outside of the Far East Chinese restaurant located on the corner of 18th and Wingohocking Street and had a sergeant acquire the corresponding videotape. The videotape showed the interior of the Chinese restaurant and the outside area in front of the restaurant before, during and after the shooting. It showed appellant, and brothers Marquis Lawrence and Ivan Simmons along with several others that were inside and outside of the Chinese restaurant. Lieutenant Perry instructed officers on the scene to round up potential curfew violators who were out there on the street. At around 11:45 PM, Officer Deirdre Still of the 35th District and Officer Allen of the 39th District observed the appellant, who appeared to be a juvenile, walking northbound on Cleveland Street, about one street west of 18th Street, and questioned him regarding his name and age. Appellant told the officers his name and that he was 16 years old. He had no identification. Given the time of the night, appellant's age and his presence in a public area, Officer Still instructed Officer Allen to write appellant up for violation of Philadelphia's curfew ordinance. Officer Allen escorted appellant to his patrol car to be issued a curfew violation citation. While appellant was waiting inside the patrol car and Officer Allen was writing up the curfew violation paperwork, appellant's 15 year old brother, Dominic White, approached and was detained by Officer Still. About this time, Tamika Sparks approached Officer Still and identified herself as the mother of both juveniles. Officer Still advised her that they were conducting curfew investigations and that appellant was in the patrol car awaiting his citation from Officer Allen. Officer Still established an address for both juveniles and released White to Tamika Sparks. However, Detective James Sloan, who had received information that appellant was the shooter from Karen Reddy, mother of eyewitnesses Kalisha and Markita Reddy, informed Officer Allen and appellant that he was looking for appellant in connection with the shooting. Appellant was then taken out of the [sic] Officer Allen's patrol car, handcuffed and transported to the Homicide Unit for questioning. Kalisha and Markita Reddy each gave a statement to detectives and testified at trial that they saw appellant shoot Hall. Both were familiar with appellant from the neighborhood. Kalisha testified that she saw Marquis Lawrence and Hall arguing. Then Hall got on his bike and rode away toward 15th and Wingohocking. She heard 9-10 shots and saw appellant holding his right arm out with a clenched fist about shoulder level in the direction Hall was riding. She did not see a gun, but observed sparks coming from appellant's hand. Markita testified that she heard appellant and Marquis confront Hall and an argument ensued. Hall became angry, got on his bike and rode away. Appellant came from across the street and began shooting at Hall as he rode away. Markita also identified appellant in a photo array.
Lieutenant Perry was on her way from the crime scene to Einstein Hospital when she learned that Hall had expired. She then returned to the crime scene and was approached by Barry McShore (McShore), who she was familiar with as a resident of the neighborhood. McShore informed her that he knew who the shooter was but did not want to be seen because he knew both families and had lived in the area for over forty years. Lieutenant Perry placed McShore in the rear of her patrol car. McShore then pointed out appellant as the shooter. At the time appellant was being detained by Officer Allen for the curfew violation. Lt. Perry instructed officers to have appellant transported to Homicide.
McShore was transported to the Homicide Unit to be interviewed. He gave a written statement to Homicide Detective John Verricchio who questioned McShore and recorded his responses verbatim. McShore stated, in pertinent part, that he was outside when Hall was shot. There was a block party going on that day and Hall was gambling with other males in a dice game at 18th and Wingohocking Streets. All day long at the block party, McShore observed a male whose name he did not know, walking around with a gun in his pocket: McShore saw Hall ride off on his bike from where the males were gambling and the male with the gun in his pocket all day, who McShore identified as appellant, took aim and fired at Hall. McShore was unable to see a gun in appellant's hand but saw sparks and the Smoke. Hall fell off the bike in front of 1729 Wingohocking Street and appellant then ran down 18th Street. Police arrived and McShore told the lieutenant what he saw. He heard her tell officers to arrest kids out there for curfew violations. He then observed that appellant being detained for a curfew violation and told the lieutenant that that was the boy who shot Hall. At the time, he did not know appellant's name but knew his face. Upon completion of the interview, Detective Verricchio asked McShore to read the statement and, if it was accurate, sign each page. McShore signed each page indicating that, he had read the statement and agreed that it was accurate. He made no additions or corrections. McShore also signed a statement adoption attestation. However, at trial McShore testified that he had never seen appellant before seeing him at trial; that he did not see the shooting or know anything about the shooting; and that he did not give the statement, the detectives wrote it up and he just signed it so he could leave. However, during questioning he did acknowledge that he was interviewed by Detective Verricchio and that it was his signature that appeared on each page and the attestation. He also testified that the biographical information in the statement was accurate.
Latisha Lowery, a friend of appellant's from the neighborhood testified on his behalf. Lowery testified that Hall argued with Marquis Lawrence and that Lawrence's brother, Ivan Simmons shot Hall. Appellant was standing on the other side of 18th Street before the shooting. She did not see appellant with a gun. However, Lowery was not sure of appellant's whereabouts at the time of the shooting. Appellant also presented evidence by way of stipulation that Detectives Crystal Williams or Grady Patterson would testify that on December 12, 2006, they contacted brothers, Ivan Simmons and Marquis Lawrence who went to the Homicide Unit with their mother to give a statement but were advised against it by their attorney and no interview was recorded. Counsel further represented to the Court that Marquis Lawrence had been placed at George Junior Republic, and while counsel had experienced some difficulty having Lawrence brought down to testify, he made a strategic decision to proceed without his testimony. Appellant testified under oath that he understood and agreed with trial counsel's decision, that there were no other witnesses or evidence he wished to present and that he was satisfied with the representation of his lawyer. Following presentation of all the evidence, appellant was found guilty of 1st degree murder, firearms not to be carried without a license, possession of a firearm by a minor and possession of an instrument of crime and was sentenced to life imprisonment without parole. Appellant did not file a direct appeal.
On June 2, 2009, appellant filed a pro se petition for post-conviction relief claiming eligibility for relief based on trial counsel's ineffectiveness for failing to interview Marquis Lawrence, Tyrell Hood, Lillian Hall, Taheed Hood, Lakeena Parker, Amanda Boyd, Aleesha Byrd and Nakia Akins; for failing to request DNA results; for failing to ask defense witness Barry McShore whether he was referring to the shooter as David or Ivan; and for failing to ask defense witness Barry McShore whether David or Ivan was walking around with a gun in his pocket all day. Additionally, appellant claimed that, while talking to Renada Council, he learned that she gave a statement to a Detective Pitts indicating that appellant was innocent, and [told] the detective that Ivan Simmons committed the murder. Appellant did not attach any documentation of the witnesses' proposed testimony. PCRA counsel was appointed and, on February 9, 2011, filed an Amended Petition presenting two claims - that appellant is entitled to a new trial because trial counsel provided ineffective assistance by not presenting the testimony of alibi witness Renada Council and that appellant is entitled to resentencing pursuant to Graham v. Florida, 130 S.Ct. 2011 (2010). On May 19, 2011, the Commonwealth responded with a motion to dismiss the claims as meritless.
Between May 20, 2011 and January 13, 2012, PCRA counsel filed and litigated several motions to compel additional discovery, including requesting fund[s] to obtain a private investigator. On March 13, 2012, PCRA counsel filed a Second Amended Petition raising four claims of ineffective assistance of counsel, requesting an evidentiary hearing and reiterating her Graham v. Florida claim. The Court undertook a thorough review of appellant's voluminous filings, the Commonwealth's responses, the record and the controlling law and determined that appellant was not entitled to PCRA relief and further proceedings were unwarranted. On March 23, 2012, the Court filed, and served on appellant, a notice pursuant to Pa.R.Crim.P. 907 indicating that his petition would be denied/dismissed after twenty days without further proceedings. Appellant responded to the notice reiterating his prior claims and raising a claim of actual innocence. After review of all submissions, appellant's petition for PCRA relief was formally dismissed on May 4, 2012. This appeal followed.

PCRA Court Opinion, 9/28/12, 1-7 (footnotes omitted).

The PCRA court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the PCRA court authored its Pa.R.A.P. 1925(a) decision. The matter is now ready for this Court's consideration. Appellant presents the following issues for our review.

1. The PCRA court erred by denying the defendant post-conviction relief because trial counsel failed to adequately consult with appellant, who was a 16 year old juvenile, in preparation for trial. Trial counsel failed to review discovery, a CD of the police 911 calls and a security video tape from a Chinese food store that was made at the time of the murder, with the appellant prior to trial. Therefore, the juvenile defendant could not adequately assist his trial counsel with his defense. There was material and credible evidence that another young man, Ivan Simmons shot the decedent, Gary Hall, after Hall and Ivan Simmons' brother, Marquis Lawrence, had an argument. Also, there was no forensic evidence to tie the defendant to this shooting.
2. The PCRA [c]ourt erred by denying the defendant post-conviction relief because trial counsel failed to introduce the CD of the 911 police calls at trial and the trial judge was precluded from hearing the defendant's own words that were recorded on this tape in his own voice at the time of the shooting. The defendant called the police to help the decedent and this call was recorded on the 911 tape.
3. The PCRA [c]ourt erred by denying the defendant post-conviction relief because trial counsel failed to call certain material witnesses, Renada Council and Marquis Lawrence at trial. If these witnesses were presented at trial, the Commonwealth could not meet its burden to prove the appellant guilty of every element of murder of the first degree beyond a reasonable doubt. Trial counsel failed to conduct an adequate investigation and interview and obtain the testimony of witnesses who were available to testify on the appellant's behalf at the time of trial. There was evidence that the "two brothers" previously argued with the decedent and that these brothers Ivan Simmons and Marquis Lawrence were the brothers who were involved in the shooting.
4. The PCRA [c]ourt erred by denying the defendant post-conviction relief because trial counsel was ineffective for failing to timely file a pre-trial motion and the appellant was precluded from filing a meritorious suppression motion to suppress an illegal detention by Philadelphia police.
5. Whether the PCRA [c]ourt erred by failing to conduct an evidentiary hearing because there are material issues of fact in dispute. There are issues of arguable merit raised in the appellant's pro se petition or discovered by PCRA counsel during the course of the review and investigation of this case. The PCRA [c]ourt failed to establish an adequate record for this appellate court to review.
6. The defendant is entitled to post-conviction relief pursuant to Graham v. Florida and Miller v. Alabama, 132 S.Ct. 2455 (2012). In addition, appellant may be eligible for relief for cases that are presently pending in the Pennsylvania Supreme Court. The issue of the sentence of life without parole for appellant is now pending before the Pennsylvania Supreme Court in the cases [of] Commonwealth v. Cunningham, 51 A.3d 178 (Pa. 2012)[, ] and Commonwealth v. Qu'eed Batts, 2012 Pa. LEXIS 1529 (decided July 9, 2012).

Appellant's brief at 2.[1]

This Court analyzes PCRA appeals "in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super. 2012). Our "review is limited to the findings of the PCRA court and the evidence of record" and we do not "disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error." Id. Similarly, "[w]e grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions." Id. (citations omitted). "[W]here the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary." Id. Finally, we "may affirm a PCRA court's decision on any grounds if the record supports it." Id.

Appellant's first four claims all relate to the effectiveness of trial counsel. "To plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act." Commonwealth v. Stewart, 2013 PA Super 317, *4 (en banc). Failure to meet any prong of this test will result in the claim failing. Id.

Arguable merit exists where the facts alleged could establish cause for relief. Id. In addition, we determine whether counsel had a reasonable basis for his actions by looking to whether counsel's decisions effectuated his client's interest. Id. Counsel's actions are unreasonable if "no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success." Id. In conducting this analysis "[w]e do not employ a hindsight analysis in comparing trial counsel's actions with other efforts he may have taken." Prejudice exists where there is a reasonable probability that absent counsel's errors, the result of the proceeding would have been different. Id.

Appellant's first issue is an allegation that trial counsel inadequately consulted with him and did not effectively investigate the case. In this respect, Appellant maintains that counsel did not review discovery, including a 911 call allegedly placed by Appellant, and a security video surveillance tape outside a Chinese food store. Appellant also contends that counsel was ineffective in neglecting to file a timely suppression motion challenging his arrest and identification.

According to Appellant, trial counsel did not review the 911 tapes with him. Appellant now claims for the first time that he placed one of the 911 calls. He further avers that counsel only met with him two times prior to trial and did not show him the DVD recording from the Chinese take-out restaurant's surveillance cameras. Without citation to any pertinent case law or adequate development of the ineffectiveness test applied to this matter, Appellant maintains that counsel's failure to show the entire surveillance tape or play for the judge his purported 911 call was ineffective assistance. Appellant continues that, due to the lack of forensic evidence against him, his inability to have viewed the DVD precluded him from assisting in his defense by advising his attorney who to present as a witness. He baldly claims that counsel's failure to file a suppression motion was an abdication of his constitutional duties; however, he develops this argument in his fourth issue. Accordingly, we discuss that position in relation to Appellant's fourth claim.

The Commonwealth responds by relying on its multiple motions to dismiss filed with the PCRA court, which it attaches to its brief, and the PCRA court opinion. With respect to Appellant's first issue, the Commonwealth argued that Appellant did not "explain how reviewing the store security DVD with him before trial would have advanced his defense." Commonwealth's supplemental motion to dismiss, at 2. It added that Appellant did not identify any witnesses from the DVD who counsel should have presented or provided witness certifications for such potential witnesses.

As it relates to Appellant's position regarding the 911 calls, the Commonwealth astutely observed that Appellant "never alleges that he mentioned this call." Id. at 4. The Commonwealth also posited that "defendant's belated claim that he was the 911 caller is highly suspect." Id. Respecting the merits of Appellant's argument, the Commonwealth contended that Appellant did not allege facts that could establish actual prejudice. Specifically, Appellant submitted that trial counsel could have learned Appellant's location via cell phone towers through a request to the telephone company. The Commonwealth highlighted that Appellant did not explain how he could not have provided this information himself to counsel, nor did he indicate this information in his PCRA petitions. According to the Commonwealth, his alleged location at the time of his purported 911 call is not exculpatory.[2]

The PCRA court held that Appellant's claim failed because he did not demonstrate how the result of the trial would have likely been different had counsel conducted trial preparation in the manner argued by Appellant. It reasoned that Appellant did not show what material evidence would have been revealed to aid his defense had counsel viewed the entire DVD with Appellant. The PCRA court concluded that Appellant's argument that Ivan Simmons killed the victim could not have been aided by the surveillance video.[3]

We find that Appellant's global first position fails. Initially, we note that Appellant's claim would not entitle him to relief because he has not adequately developed his arguments under the three-prong ineffectiveness test or cited to legal authority relevant to his claims. Commonwealth v. Steele, 961 A.2d 786, 799 (Pa. 2008). The case law Appellant does provide relates to the ineffectiveness test itself and general concerns over waiver and previous litigation. These generic citations have nothing to do with the substance of his positions. Accordingly, Appellant has failed to demonstrate actual prejudice. In this respect, although a defendant is entitled to adequate counsel during the investigation and pre-trial phase of a case, see e.g., Stewart, supra, Appellant has not shown that either reviewing the lengthy DVD, which this Court has viewed and contains mostly non-relevant footage, or listening to the 911 calls, would have led to a reasonable probability of a different outcome at trial.

Appellant does not indicate what witnesses he could have called based on watching the DVD before trial. Nor does the 911 tape call into question the evidence admitted against Appellant. Presumably, Appellant's position is that a person who shoots someone multiple times would not telephone 911. Of course, assuming Appellant placed the call but inexplicably was unaware of this information before trial, the 911 tape does not dispute the testimony that Appellant shot the decedent. We agree that evidence that Appellant possibly dialed 911 does not rise to a reasonable probability that the outcome of this non-jury trial would have been different where Appellant was identified as the shooter by persons who knew him for an extended period of time. While evidence that Appellant dialed 911, if found credible, could have aided Appellant, the ultimate factor in this case was the credibility of the witnesses who identified Appellant. The 911 tape could not have exculpated Appellant or impeached the crucial witnesses in this matter.

Appellant's second claim merely reiterates portions of his first issue with respect to the 911 tape. For reasons outlined above, Appellant's argument does not entitle him to relief.

The third issue Appellant raises on appeal is that counsel was ineffective in declining to present the testimony of Renada Council and Marquis Lawrence.[4] Appellant contends that "[t]rial counsel failed to conduct an adequate investigation and interview and obtain the testimony of witnesses who were available to testify[.]" Appellant's brief at 54. He maintains that counsel should have presented the testimony of Renada Council.

In his first amended petition, Appellant attached an affidavit from Ms. Council. Therein, she averred that, when she heard approximately ten gunshots, she saw Appellant walking along Cleveland Street, not Wingohocking Street. After the gunshots, Appellant approached her and asked her what happened. He then walked her to her house. Ms. Council claimed that she had overheard Marquis Lawrence tell his brother, Ivan Simmons, that the victim had bumped Lawrence in the Chinese store. In addition, Ms. Council asserted that when she arrived at her house after the shooting, both Lawrence and Simmons were inside her home. She stated that Simmons asked her if the victim was dead and then the two brothers called a cab. Lastly, Ms. Council maintained that the next day Simmons called her and told her that he shot the victim. Appellant argues that had Ms. Council testified as to these matters, there is a reasonable probability that the trial court would have found him not guilty.

In this respect, Appellant contends that Ms. Council would have corroborated the testimony of his own witness who testified that Simmons shot the victim. He continues that there is no dispute that Simmons' brother, Marquis Lawrence, and the victim had an argument earlier and that Simmons was in the area at the time of the shooting. Appellant adds that there was evidence that the shooting involved two brothers, and that Simmons therefore was the shooter.

Citing a report on wrongful convictions provided to the Pennsylvania General Assembly in 2011, Appellant highlights that false identifications are a leading cause of wrongful convictions. He suggests that the two eyewitnesses who knew him and identified him as the culprit were under stress and afraid. Moreover, Appellant notes that the shooting occurred at 11:45 p.m. Lastly, Appellant observes that eyewitness Kalisha Reddy informed police that her cousin had identified Simmons as shooting the decedent.

The Commonwealth responded that Ms. Council's affidavit was inconsistent with the video evidence and the defense at trial. It also replied that Appellant had undergone a colloquy at trial indicating that he did not wish to present any additional witnesses. The Commonwealth in its first motion to dismiss quoted trial counsel's closing summation where he pointed out that immediately before the shooting, Appellant is seen on the Chinese take-out restaurant's surveillance camera, as was Lawrence. Counsel then argued that Appellant did not leave the scene, in contrast to Lawrence. Thus, Appellant did see what occurred, but was not seen on the video tape with a gun before the shooting or twenty-five seconds after. Thus, the Commonwealth submitted that Ms. Council's affidavit was at odds with the defense advanced at trial and the actual evidence. It reiterated this position in its supplemental motion to dismiss and added that Ms. Council's claim regarding Simmons' confession was inadmissible hearsay.

The PCRA court found that both the eyewitness testimony and the surveillance recording established that Appellant was at the scene and not walking on Cleveland Street. It opined that Ms. Council's affidavit appeared incredible. The court also agreed that Ms. Council's relaying of Simmons' alleged confession was inadmissible hearsay and that Appellant voluntarily waived his right to call additional witnesses.

This Court recently collected case law relative to the failure to interview or investigate a potential witness and the related issue of neglecting to call a witness in Stewart, supra. The Stewart Court opined, "[n]eglecting to call a witness differs from failing to investigate a witness in a subtle but important way. . . . A claim that trial counsel did not conduct an investigation or interview known witnesses presents an issue of arguable merit where the record demonstrates that counsel did not perform an investigation." Stewart, supra at *8-9. While it may be unreasonable per se to conduct no investigation into known witnesses, prejudice must be shown. Id. at *9.

To demonstrate prejudice, a petitioner must meet the standard relative to failing to call the witness. That test provides a defendant must prove,

(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew or should have known of the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the witness's testimony was so prejudicial as to have denied him a fair trial.

Commonwealth v. Wright, 961 A.2d 119, 155 (Pa. 2008). Since the undisputed physical evidence directly refuted much of Ms. Council's claims, Appellant cannot show that the absence of her testimony denied him a fair trial. Further, Appellant has not demonstrated that Simmons' alleged confession to Ms. Council was admissible evidence. Thus, Appellant's third claim fails.

Appellant's fourth issue is that trial counsel was ineffective in not filing a suppression motion. According to Appellant, his detainment for a curfew violation was an unlawful custodial detention. He maintains that his parents were present and he was two blocks from his home; therefore, he was not in violation of the curfew ordinance, which allows a minor to be with a parent past 10:30 p.m. From this premise, Appellant posits that his subsequent identification by Mr. McShore occurred while Appellant was illegally detained. Accordingly, he asserts that Mr. McShore's identification should have been suppressed.

The Commonwealth countered that Appellant was lawfully detained for a curfew violation before Mr. McShore spontaneously identified Appellant as the shooter. The Commonwealth averred that Appellant's arrest for the shooting therefore was premised on probable cause. Further, it asserted that an illegal arrest is not grounds for suppressing an identification. The PCRA court ruled that Appellant's suppression claim lacked merit because he was lawfully arrested for a curfew violation and police had probable cause to arrest him for the shooting when a bystander identified Appellant as the shooter. We agree.

Appellant's argument is based on a faulty premise. He was never unlawfully detained for a curfew violation since, at the time he was stopped, his parents were not with him, and his mother arrived later. Appellant was not released to his mother because a person had by that time identified him as the culprit in the shooting. Moreover, an illegal arrest is not grounds for suppression of an out-of-court identification. See Commonwealth v. Howard, 659 A.2d 1018, 1022-1023 (Pa.Super. 1995). For all these reasons, Appellant's fourth issue is without arguable merit.

Appellant's penultimate position is that the PCRA court erred in denying him an evidentiary hearing. There is no right to an evidentiary hearing. Commonwealth v. Albrecht, 994 A.2d 1091 (Pa. 2010). Evidentiary hearings are only necessary where there are genuine issues of material fact. Id. Since Appellant's previous claims fail as a matter of law, the PCRA court did not err in declining to conduct an evidentiary hearing.

The final claim Appellant levels is that he was sentenced illegally in violation of his Eighth Amendment right against cruel and unusual punishment. Appellant, a juvenile at the time of his crime, premises his argument on Miller v. Alabama, supra. This last issue fails in light of our Supreme Court's recent decision in Commonwealth v. Cunningham, __ A.3d (Pa. 2013), 2013 WL 5814388; see also Commonwealth v. Creighton, __ A.3d __ (Pa.Super. 2014) (en banc) (applying Cunningham).[5]

Order affirmed.

Judgment Entered.

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