Com. v. Ryak (memorandum)

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J-S13022-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DEVIN RYAK Appellant No. 1308 EDA 2012 Appeal from the PCRA Order April 16, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0910761-2003 BEFORE: BOWES, J., GANTMAN, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, J.: Filed: March 19, 2013 Appellant, Devin Ryak, appeals from the order entered in the Philadelphia County Court of Common Pleas, denying his petition brought pursuant to the Post Conviction Relief Act ( PCRA ).1 We affirm. The PCRA court correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. Appellant raises eight issues for our review: 1. DID THE PCRA COURT ERR AND VIOLATE APPELLANT S SIXTH AND FOURTEENTH AMENDMENT RIGHTS BY ERRONEOUSLY AND IMPROPERLY USING THE WRONG LEGAL STANDARD REQUIRING THAT APPELLANT USE EXTRAORDINARY DILIGENCE IN OBTAINING AND BRINGING PREVIOUSLY UNAVAILABLE NEWLY DISCOVERED EVIDENCE TO THE COURT S ATTENTION? ____________________________________________ 1 42 Pa.C.S.A. ยงยง 9541-9546. J-S13022-13 2. DID THE PCRA COURT ERR AND VIOLATE APPELLANT S RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS WHEN IT FOUND, WITHOUT CONDUCTING A HEARING THAT TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO ADEQUATELY PREPARE FOR TRIAL? 3. DID THE PCRA COURT ERR AND VIOLATE APPELLANT S SIXTH AND FOURTEENTH AMENDMENT RIGHTS WHEN IT FOUND THAT KEY COMMONWEALTH WITNESSES PARKER AND JAMES EXPOSURE TO APPELLANT AT THE POLICE STATION WAS AN INNOCENT ENCOUNTER AND WAS NOT UNDULY SUGGESTIVE BECAUSE IT WAS NOT THE PRODUCT OF ANY IMPROPER POLICE ACTION AND THEREFORE, TRIAL COUNSEL S DECISION TO WITHDRAW THE MOTION TO SUPPRESS WAS TACTICAL AND REASONABLE? 4. THE PCRA COURT ERRED AND VIOLATED APPELLANT S RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS BY FINDING, WITHOUT CONDUCTING A HEARING, THAT TRIAL COUNSEL WAS NOT INEFFECTIVE FOR OPENING THE DOOR AND FAILING TO PROPERLY OBJECT TO PREJUDICIAL HEARSAY TESTIMONY THAT [APPELLANT] AND APPELLANT S CO-CONSPIRATOR WERE COUSINS. 5. DID THE PCRA COURT ERR AND VIOLATE APPELLANT S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS WHEN IT FOUND TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO REQUEST A KLOIBER[2] CHARGE BE GIVEN TO THE JURY AND THAT APPELLATE COUNSEL WAS NOT SERIALLY INEFFECTIVE FOR FAILING TO ALLEGE RELATED TRIAL COURT ERROR? 6. WAS APPELLANT DENIED HIS RIGHTS UNDER ARTICLE 1 SECTION 9 OF THE CONSTITUTION OF THE COMMONWEALTH OF PENNSYLVANIA AND THE SIXTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA TO EFFECTIVE ASSISTANCE OF ____________________________________________ 2 Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). -2- J-S13022-13 COUNSEL IN THAT TRIAL COUNSEL FAILED TO BRING A RULE 600 MOTION? 7. DID THE PCRA COURT ERR AND VIOLATE APPELLANT S SIXTH AND FOURTEENTH AMENDMENT RIGHTS IN HOLDING THAT APPELLANT S CLAIM THAT A MEDICAL EXAMINER S STIPULATED TESTIMONY WAS NOT COGNIZABLE UNDER MELENDEZ-DIAZ V. MASSACHUSETTS, 129 S.CT. 2527 (2009). 8. DID THE PCRA COURT VIOLATE APPELLANT S SIXTH AND FOURTEENTH AMENDMENT RIGHTS BY DISMISSING THE PETITION WITHOUT THE BENEFIT OF CONDUCTING A HEARING? (Appellant s Brief at 4-5). As an initial matter, we address Appellant s seventh issue, the Melendez-Diaz claim. Appellant presented the issue in his PCRA petition but failed to include it in his Rule 1925(b) statement. Therefore, the issue is waived. See Commonwealth v. Hill, 609 Pa. 410, 427, 16 A.3d 484, 494 (2011) (restating general rule that waiver occurs when party does not preserve issue in Rule 1925(b) statement). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Leon W. Tucker, we conclude Appellant s remaining issues merit no relief. The trial court opinion properly disposes of the questions presented. (See Trial Court Opinion, dated September 23, 2012, at 7-19) (finding: (1) Appellant did not exercise reasonable diligence in discovering witnesses Nael Reddy, Rashena Carter, and Desjanava Kinslow; several years have passed since trial and Appellant s explanation that witnesses did not want to get involved, were -3- J-S13022-13 scared, or feared retaliation is insufficient reason to excuse lack of reasonable diligence; additionally, testimony would have only limited impeachment value; (2) Appellant failed to produce evidence in support of his bald assertions that counsel was unprepared for trial; (3) counsel was not ineffective in abandoning suppression motion, as motion was meritless; there is no evidence police contrived inadvertent meeting between Appellant and witness; (4) counsel was not ineffective for opening the door to hearsay testimony; statements at issue were non-hearsay because they were not offered for truth of contents; (5) there is no arguable merit to claim counsel should have requested Kloiber instruction; witnesses did not have difficulty identifying Appellant; (6) ineffective assistance of counsel claim in connection with Rule 600 motion is entirely without evidentiary support; (8) Appellant was not entitled to hearing on PCRA petition as of right and produced no facts to warrant hearing). Accordingly, we affirm on the basis of the PCRA court opinion. Order affirmed. -4-

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