from the PCRA Order Entered April 25, 2018 In the Court of
Common Pleas of Delaware County Criminal Division at No(s):
BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOT, P.J.E.
Anthony Shaw, appeals from the order dismissing his timely
petition filed pursuant to the Post Conviction Relief Act
("PCRA"), 42 Pa.C.S. §§ 9541-9546. After
careful review, we reverse and remand for a new trial.
PCRA court summarized the facts leading to Appellant's
conviction as follows:
On November 30, 2009 [Appellant] and an accomplice, Daniel
Vincent, forced their way into the Darby Borough apartment of
… [V]ictim, Alex Adebisi. [Victim] saw [Appellant] and
Vincent "hanging" around his apartment building
before the home invasion and in fact spoke with them. When
the conversation concluded[, ] [Victim] then went into his
apartment where he was entertaining guests. [Appellant] and
Vincent came to the door and asked [Victim] to change a
hundred dollar bill. [Victim] accommodated the men and
returned to his guests. When there was another knock at his
door [Victim] assumed that it was a delivery of take-out food
and he opened the door. [Appellant] and Vincent forced their
way in and demanded money.
The two men assaulted [Victim] and [Appellant] shot him in
the thigh and chest before fleeing. [Victim]'s guests,
who were hiding in the bathroom, called 911. Eventually
police officers and paramedics arrived and [Victim] was taken
to a hospital where he was treated.
In addition to [Victim], a neighbor who lived two doors from
[Victim] testified that he had seen [Appellant] and Vincent
in front of the house earlier and that he had warned others
to lock their doors. A guest of [Victim]'s also lived
nearby. He saw two strangers outside the house. He asked them
to leave and locked the door. A female guest saw Vincent
enter the apartment and punch [Victim] before she ran to the
bathroom to hide. After the incident when he was being
treated for his injuries, [Victim] identified both
[Appellant] and Vincent in separate photo arrays that he
viewed on different days.
PCRA Court Opinion (PCO), 6/20/18, at 2-3 (quoting Trial
Court Opinion, 12/17/13, at 2-3).
convicted Appellant of attempted murder, robbery, aggravated
assault, burglary, firearms not to be possessed without a
license, possession of an instrument of crime, and criminal
conspiracy to commit aggravated assault, robbery, and
burglary. On December 15, 2011, the trial court sentenced him
to an aggregate term of 15-30 years' imprisonment, and a
consecutive term of five years' probation.
Appellant's judgment of sentence was affirmed on direct
appeal. See Commonwealth v. Shaw, 105 A.3d 794 (Pa.
Super. 2014) (unpublished memorandum), appeal
denied, 106 A.3d 726 (Pa. 2015).
filed a timely, pro se PCRA petition, his first, on
November 5, 2015. PCRA Counsel, Stephen Molineux, Esq., was
appointed to represent Appellant on November 16, 2015.
Attorney Molineux filed an amended PCRA petition on
Appellant's behalf on October 19, 2017. A PCRA hearing
was held on April 5, 2018. On April 25, 2018, the PCRA
petition was denied. Appellant filed a timely Notice of
Appeal, and a timely, court-ordered Pa.R.A.P. 1925(b)
statement. The PCRA court issued its Rule 1925(a) opinion on
June 20, 2018. Appellant now presents the following questions
for our review:
I. Were Appellant's Fifth, Sixth and Fourteenth Amendment
rights violated due to [trial] counsel's ineffective
failure to file a pre-trial motion to preclude the in-court
identification of … Appellant?
II. Were Appellant's Sixth Amendment rights violated due
[trial] counsel's ineffective failure to request a
III. Were Appellant's Sixth Amendment rights violated due
PCRA counsel's ineffective failure to preserve a
potentially meritorious claim which was the basis for the
PCRA [c]ourt's evidentiary hearing?
Appellant's Brief at 3.
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA
court and the evidence of record. We will not disturb a PCRA
court's ruling if it is supported by evidence of record
and is free of legal error. This Court may affirm a PCRA
court's decision on any grounds if the record supports
it. Further, we 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. Where the petitioner
raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012) (internal citations omitted).
claims concern the alleged ineffectiveness of his trial and
We begin with the presumption that counsel rendered effective
assistance. To obtain relief on a claim of ineffective
assistance of counsel, a petitioner must rebut that
presumption and demonstrate that counsel's performance
was deficient, and that such performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687-91
(1984). In our Commonwealth, we have rearticulated the
Strickland Court's performance and prejudice
inquiry as a three-prong test. Specifically, a petitioner
must show: (1) the underlying claim is of arguable merit; (2)
no reasonable basis existed for counsel's action or
inaction; and (3) counsel's error caused prejudice such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error.
Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527
A.2d 973, 975 (1987).
Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011)
(some internal citations omitted).
Appellant's first claim, he asserts that trial counsel
was ineffective for failing to seek to preclude Victim's
in-court identification testimony by means of a pre-trial
motion to suppress. Appellant argues that the pre-trial
identification of him was so suggestive that the trial court
would have suppressed the in-court identification of
Appellant by Victim due to the taint of the pre-trial
Whether an out of court identification is to be suppressed as
unreliable, and therefore violative of due process, is
determined from the totality of the circumstances.
Suggestiveness in the identification process is a factor to
be considered in determining the admissibility of such
evidence, but suggestiveness alone does not warrant
exclusion. Identification evidence will not be suppressed
unless the facts demonstrate that the identification
procedure was so impermissibly suggestive as to give rise to
a very substantial likelihood of irreparable
misidentification. Photographs used in line-ups are not
unduly suggestive if the suspect's picture does not stand
out more than the others, and the people depicted all exhibit
similar facial characteristics.
Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa.
Super. 2011) (cleaned up). Furthermore, "[f]ollowing a
suggestive pre-trial identification procedure, a witness
should not be permitted to make an in-court identification
unless the prosecution establishes by clear and convincing
evidence that the totality of the circumstances affecting the
witness's identification did not involve a substantial
likelihood of misidentification." Commonwealth v.
Fowler, 352 A.2d 17, 19 (Pa. 1976).
PCRA court found that Appellant's claim lacked arguable
merit for the following reasons:
[Appellant] alleges that [Victim]'s pre-trial
identification tainted his in-court identification and that
trial counsel was ineffective for failing to file a motion to
suppress. In support[, ] he alleges only that [Victim] chose
[Appellant]'s "picture very quickly after indicating
that two guys that he had never seen before, walked up to him
and shot him" and also describes[, ] inter
alia, discrepancies between [Victim]'s description
of his assailants and the actual appearance of [Appellant]
and his co-defendant. These allegations do not in any way
raise the specter of an unduly suggestive identification
procedure. Rather, they are matters that the ...