J-S77012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARKISE CROSBY                             :
                                               :
                       Appellant               :   No. 532 EDA 2017

                  Appeal from the PCRA Order January 6, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008007-2009


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                              FILED FEBRUARY 22, 2019

        Markise Crosby appeals from the order entered January 6, 2017, in the

Court of Common Pleas of Philadelphia County, denying his first petition filed

pursuant to the Pennsylvania Post Conviction Act (PCRA), 42 Pa.C.S. § 9541-

9546. Crosby seeks collateral relief from the judgment of sentence of 20 to

40 years’ imprisonment, followed by five years’ probation, after he was found

guilty of murder in the third degree and possession of an instrument of crime

(PIC),1 and pleaded guilty to two violations of the Uniform Firearms Act

(VUFA), namely, carrying a firearm without a license and carrying a firearm

on public streets or public property in Philadelphia. 2     Crosby contends the

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2502(c) and 907(a).

2   18 Pa.C.S. §§ 6106(a)(1) and 6108.
J-S77012-18



PCRA court erred in dismissing his PCRA petition without a hearing. In his

brief, Crosby argues: (1) Trial counsel was ineffective in permitting Crosby to

plead guilty in front of the jury to the VUFA charges, (2) Trial counsel was

ineffective in failing to move for a cautionary instruction which would have

told the jury that it could not hold the guilty plea against Crosby when

evaluating his culpability on all other crimes, (3) Trial counsel was ineffective

in failing to make sure during the colloquy that Crosby was aware the plea

could be used against him by confronting his character witnesses with the

plea,    (4) The decision to plead guilty to the VUFA charges was defense

counsel’s decision and Crosby did not enter a knowing, intelligent and

voluntary plea. Based upon the following, we affirm on the basis of the PCRA

court’s well reasoned opinion.

        The underlying facts and procedural history are well known to the

parties and we need not reiterate them here.         See PCRA Court Opinion,

5/31/2017, at 1-3. We simply state that Crosby’s judgment of sentence was

affirmed by this Court on January 3, 2013, and the Pennsylvania Supreme

Court denied his petition for allowance of appeal on November 8, 2013.

Commonwealth v. Crosby, 64 A.3d 268 (Pa. Super. 2013) (unpublished

memorandum), appeal denied, 79 A.3d 1097 (Pa. 2013). Crosby filed the

instant petition on January 9, 2014,3 and appointed counsel filed an amended

____________________________________________


3 The date of “January 9, 2013” in the PCRA court’s opinion should read
“January 9, 2014.” See PCRA Court Opinion, 5/31/2017, at 2.



                                           -2-
J-S77012-18



petition on January 27, 2016. The PCRA court issued Pa.R.Crim.P. 907 notice

of intent to dismiss, and thereafter formally dismissed the petition on January

6, 2017. This timely appeal followed.4, 5

       The principles that guide our review are well settled.

       We review the denial of PCRA relief to decide whether the PCRA
       court’s factual determinations are supported by the record and are
       free of legal error. When supported by the record, the PCRA
       court's credibility determinations are binding on this Court, but we
       apply a de novo standard of review to the PCRA court's legal
       conclusions. Id. We must review the PCRA court's findings and the
       evidence of record in a light most favorable to the Commonwealth
       as the winner at the trial level.

                                          ****

       With respect to claims of ineffective assistance of counsel, counsel
       is presumed to be effective, and the petitioner bears the burden
       of proving to the contrary. To prevail, the petitioner must plead
       and prove, by a preponderance of the evidence, the following
       three elements: (1) the underlying claim has arguable merit; (2)
       counsel had no reasonable basis for his or her action or inaction;
       and (3) the petitioner suffered prejudice as a result of counsel’s
       action or inaction. With regard to the second prong (reasonable
____________________________________________


4 It appears that counsel for Crosby filed a Pa.R.A.P. 1925(b) statement on
May 23, 2017, beyond the court-ordered deadline of April 17, 2017, thereby
causing Crosby’s claims to be waived for review.                 See Pa.R.A.P.
1925(b)(4)(vii) (all issues not properly raised in a court-ordered concise
statement are waived). This Court has held that PCRA counsel is ineffective
per se for failing to file a timely concise statement, and where the PCRA court
has addressed the merits of the claims included in the late-filed statement, no
remand is necessary for the filing of a concise statement nunc pro tunc, and
we may address the merits of the issues presented. Commonwealth v.
Presley, 193 A.3d 436, 442 (Pa. Super. 2018), appeal denied, ___ A.3d ___
(Pa. 2019). Applying Presley to this case, we proceed to the merits.
5While the PCRA court opinion states Crosby’s appeal was filed on January
24, 2017, the record reflects the notice of appeal was filed on February 2,
2017. See PCRA Court Opinion, 5/31/2017, at 2.

                                           -3-
J-S77012-18


      basis), we do not question whether there were other more logical
      courses of action which counsel could have pursued; rather, we
      must examine whether counsel’s decisions had any reasonable
      basis. We will hold that counsel’s strategy lacked a reasonable
      basis only if the petitioner proves that a foregone alternative
      offered a potential for success substantially greater than the
      course actually pursued. Our review of counsel’s performance
      must be highly deferential. To establish the third element
      (prejudice), the petitioner must show that there is a reasonable
      probability that the outcome of the proceedings would have been
      different but for counsel’s action or inaction.

      Because a petitioner’s failure to satisfy any of the above-
      mentioned elements is dispositive of the entire claim, [a] court is
      not required to analyze the elements of an ineffectiveness claim
      in any particular order of priority; instead, if a claim fails under
      any necessary element of the ineffectiveness test, the court may
      proceed to that element first.

                                     ****

         [T]he PCRA court has the discretion to dismiss a petition
         without a hearing when the court is satisfied that 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. 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. We stress that an evidentiary hearing is not meant
         to function as a fishing expedition for any possible evidence
         that    may     support    some     speculative    claim     of
         ineffectiveness.

Commonwealth v. Brown, 196 A.3d 130, 150-151, 192-193 (Pa. 2018)

(citations and internal citations omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well reasoned opinion of the Honorable Rose Marie

DeFino-Nastasi, we conclude no relief is warranted. The PCRA court’s opinion

                                      -4-
J-S77012-18


fully addresses and properly disposes of the issues raised in this appeal. See

PCRA Opinion, 5/31/2017, at 4-12 (finding, inter alia: (1) Trial counsel had an

objectively reasonable basis for permitting Crosby to plead guilty in front of

the jury, specifically, to have Crosby appear more credible by admitting

immediately to a crime he did commit, in advancing Crosby’s claim of self

defense; the jury heard the same evidence when Crosby testified to self

defense at trial and admitted to possessing the gun in front of the jury, and

Crosby appeared more credible by previewing to the jury he was willing to

come clean right up front about his criminal conduct; (2) Trial counsel had a

reasonable basis for not requesting a cautionary instruction; the trial court

instructed the jury at the close of trial regarding the presumption of innocence,

the Commonwealth’s burden of proof, the elements of the crimes charged,

and self-defense; Crosby’s guilty plea to VUFA charges was cumulative of

other evidence elicited at trial, including Crosby’s own testimony that he

illegally purchased the firearm and used the firearm to shoot the decedent; a

cautionary instruction was not warranted since this evidence was not admitted

as a prior bad act, but as part of a defense strategy to establish Crosby’s

credibility before he testified; further, Crosby cannot show prejudice since

two eyewitnesses testified they had not seen the victim make any threatening

move or action prior to Crosby shooting him, both testified Crosby shot the

victim 11 times, and Crosby fled and remained a fugitive for six weeks; (3)

Regarding Crosby’s claim trial counsel was ineffective in failing to inform him


                                      -5-
J-S77012-18


his character witness could be cross examined as to his guilty plea on the

VUFA charges, Crosby’s character witness, his grandfather (a retired

Philadelphia police officer), testified Crosby had a “very good reputation” for

being a “peaceful non-violent person,” and on cross examination, testified

over objection that he was present when Crosby pled guilty and the fact that

Crosby pled guilty would not change his testimony; Crosby testified he was in

possession of the firearm and explained why he used it; Crosby knew of trial

counsel’s strategy; and Crosby received the benefit of a jury instruction on

character;6 and (4) Crosby was fully colloquied on the record explaining his

right to a trial by jury, and he indicated under oath he understood his rights

and agreed to plead guilty to the VUFA charges; he acknowledged he spoke

to counsel and no one had threatened or promised him anything; Crosby was

fully advised of the rights he was surrendering and nevertheless agreed to

plead guilty; assuming, arguendo, he was not advised his character witness

could be impeached with his plea, Crosby cannot show prejudice for the

reasons already discussed).

____________________________________________


6 Although the PCRA court also opined that Crosby was “alerted” to the fact
that his character witness could be confronted with evidence of the guilty plea
by the prosecutor’s comment during discussion whether Crosby would be
permitted to plead guilty in front of the jury (“He doesn’t have character for
peacefulness if he is pleading to a gun charge unlicensed firearm.” N.T.,
3/15/2011, at 11), we do not rely on this reasoning since trial counsel’s
response was that the prosecutor could use the evidence of the plea in closing
argument. See id. at 11.




                                           -6-
J-S77012-18


       Our review confirms the PCRA court’s analysis that concludes Crosby

has failed to satisfy the three-prong ineffectiveness test with respect to each

of his claims of deficient stewardship. Accordingly, we affirm the dismissal of

Crosby’s PCRA petition on the basis of the PCRA court’s opinion.7

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/19




____________________________________________


7In the event of further proceedings, the parties are directed to attach a copy
of the PCRA court’s May 31, 2017, opinion to this memorandum.

                                           -7-
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                                                                                                           Circulated 01/30/2019 10:53 AM
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)
                                                                                                                                   FILED
,.l
,.I                     IN THE COURT OF COMMON PLEAS OF PHILADELPIDA                                                     MAY 3 12017
                                             CRIMINAL TRIAL DIVISION                              Office of Judicial Records
       COMMONWEALTH OF PENNSYLVANIA                                           CP-51-CR-0008007-2009 Appeals/Post Trial

                 v.                                                           532 EDA 2017

      MARKISE CROSBY
                                                                                   cP,SI-CR-0008007-2000Comm. Y. Croiby, MarkisO
                                                                                                      Opinion



                                                          OPINION
      Rose Marie DeFino-Nastasi, J.
                                                                                        IIII IIII II 111111111111111
                                                                                                 7955055631
                                               PROCEDURAL HISTORY

                 On March 21, 2011, Petitioner was convicted after a jury trial, presided over by the

      Honorable Rose Marie Def'ino-Nastasi, of one count of Third Degree Murder, as a felony of the

      first degree and of one count of Possession of an instrument of Crime (PIC), 18 Pa.C.S. § 907(b),

      as a misdemeanor of the first degree. 1

               On June 24, 2011, Petitioner was sentenced to twenty (20) to forty (40) years

      imprisonment for Third Degree Murder; a concurrent term of three and one-half (3 'h) to seven

      (7) years imprisonment for carrying a firearm without a license; a consecutive term bf five (5)

      years probation for carrying a firearm on public streets or public property in Philadelphia; and

      for PIC.

               On July 1, 2011, Petitioner filed a motion for reconsideration of sentence, which was

      denied on July 26, 2011.

              On January 3, 2013, the Superior Court affirmed the trial court. Commonwealth v.

      Crosby, No. 1737 EDA 2011 (Pa, Super. Jan. 3, 2013).



      I After being arraigned before the jury on the charge of VUF A § 6106 and § 6108, Petitioner pied guilty. He pied
      not guilty to all other charges.

                                                                                                                                    1
       On January 9, 20 I 3, Petitioner filed a timely pro se Post Conviction Relief Act (PCRA)

petition. David Rudenstein, Esq., was appointed as PCRA counsel.

       On January 27, 2016, Petitioner through PCRA counsel filed an amended PCRA petition.

       On October S, 2016, the Commonwealth filed a Motion to Dismiss.

       On January 6, 2017, the Court formally dismissed the PCRA.

       On January 24, 2017, Petitioner filed the instant appeal to the Superior Court.

       On May 23, 2017, Petitioner filed a 1925(b) Statement of Matters Complained of on

Appeal, pursuant to an Order of the Court, claiming that:

       1. The Court erred where it dismissed Petitioner's amended PCRA petition without

           holding an evidentiary hearing even though the Petitioner properly pied, and could

           have proven, several causes for relief, including the following:

              a. Trial counsel was ineffective when counsel permitted Petitioner to plead

                  guilty to VUFA charges, in front of the jury.

              b. Trial/defense counsel was ineffective for failing to move for a cautionary

                  instruction which would have told the jury that it cannot hold a guilty plea

                  against Petitioner when evaluating his culpability on all other crimes.

              c. Ineffective assistance of trial counsel who never informed Petitioner that his

                  character witness would be cross-examined as to his prior conviction - which

                  was the plea to the VUFA charge, and which Petitioner, thus, never consented

                  to said cross-examination.

              d. Petitioner's decision to plead guilty to VUFA was his defense counsel's

                  decision, as it appears that Petitioner did not meaningfully partake in that

                                                                                                  2
                   decision-making process, nor could he reach a knowing, intelligent and

                   voluntary decision as to whether he should have pied guilty to that charge
                   without being informed that his character witness could be cross-examined

                   about his VUFA plea.

       2. Petitioner is entitled to a remand of the PCRA Court for an evidentiary hearing and/or

           permission to withdraw his plea and go to trial as the Court erred when it denied

           Petitioner's amended PCRA petition without a hearing as Petitioner was victimized

           by ineffective assistance of counsel.

                                   STATEMENT OF FACTS

       Petitioner shot and killed his childhood friend, the decedent, Cedric Brown.

       On September 9, 2008) at approximately 9:30 p.m., Petitioner and another friend, Tommy

Williams, were standing on the porch of Williams's grandmother's house when the decedent and

Nasiyr Carter approached them. All four males grew up together. Petitioner engaged in an

argument with his longtime friend, Carter. Carter believed that Petitioner and his friends had

burglarized the house of the decedent. The argument escalated and the decedent joined in the

argument. Ultimately, Petitioner pulled out a gun and fired at the decedent eleven times, striking

him in the back of the head, neck, torso, arms and left thigh. Petitioner fled the scene and was not

arrested until October 22, 2008. The decedent was pronounced dead at the scene.

       Petitioner testified that he was acting in self-defense. He told the jury that a few days

prior to the incident, the decedent, Carter, and another male named "Drew" came to his house

and accused him of breaking into the decedent's home. At that time, Petitioner and the decedent

had a physical altercation and the decedent lifted his shirt and flashed a gun. The decedent told

Petitioner that he was lucky that "too many people were outside." Petitioner testified that he then


                                                                                                    3
 bought a gun because he was in fear of the decedent. On September 9, 2008, while Petitioner was

 standing on Williams' porch, the decedent and Carter showed up. Another argument ensued and

the decedent said to Petitioner, "where the bread at or I will pop you right now?" Upon seeing

the decedent reach for his waist, Petitioner pulled at his gun and began firing.

                                             ANALYSIS

                                                Issue I

        a. Trial counsel was ineffective when counsel permitted Petitioner to plead guilty to

            VUFA charges, in front of the jury.

        A PCRA petitioner alleging ineffectiveness of counsel will be granted relief only if he is

able to prove that, "in the circumstances of [his] particular case," the truth-determining process

was undermined to the extent "that no reliable adjudication of guilt or innocence could have

taken place." 42 Pa.C.S. § 9543(a)(2)(ii). It is well settled that counsel is presumed effective.

Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011). This presumption arises from the

recognition that it is all too easy for the defendant or the court to second guess a strategy that has

proven unsuccessful. Id. Rather, a reviewing court must make every effort to "eliminate the

distorting effects of hindsight, to reconstruct the circumstances of counsel's perspective at the

time." Id. (quoting Strickland v. Washington, 466 U.S. 668, 690 (1884).

       Pennsylvania Courts have refined the Strickland performance and prejudice test into a

three-part inquiry. Thus, to prove an ineffective assistance of counsel claim, a petitioner must

prove that: ( 1) the underlying issue is of arguable merit; (2) that counsel's actions lacked an

objective reasonable basis; and (3) that the petitioner was prejudiced by counsel's act or

omission, Commonwealth v. Koehler, 36 A.3d 1211 at 132 (Pa.2012) (citing Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa.1987)). For a claim to have arguable merit, a petitioner must

                                                                                                     4
prove "that the underlying legal claim ... has 'arguable merit.:" Commonwealth v. Slee le, 961

A.2d 786, 821 (Pa.2008) (emphasis in original), in regards to prejudice, the third prong of the

ineffective assistance of counsel test, a petitioner must demonstrate "that there is a reasonable

probability that, but for counsel's error or omission, the result of the proceeding would have been

different." Koehler, 36 A.2d at 132. The failure to show any prong of this test will cause the

entire ineffective assistance of counsel claim to fail. Id. at 132. Furthermore, courts are not

required to analyze the elements of an ineffectiveness claim in any particular order of priority;

instead, if a claim fails under any necessary element of the Strickland test, the court may proceed

to that element first. Lesko, 15 A.3d at 374.

        "Generally, where matters of strategy and tactics are concerned, counsel's assistance is

deemed constitutionally effective if he chooses a particular course that had some reasonable

basis designed to effectuate his client's interests." Commonwealth v. Puksar, 951 A.2d 267, 277

(Pa. 2008). If a defendant fails to demonstrate that counsel's act or omission adversely affected

the outcome of the proceedings, the ineffectiveness claim should be dismissed at the outset, and

the court need not first determine whether the defendant has satisfied the first and second prongs

of the test.

        Prior to formal arraignment before the jury, defense counsel made it perfectly clear that

they wanted the Petitioner to be permitted to plead guilty in front of the jury to the two weapons

offenses. In fact, when the assistant district attorney objected and requested that the plea be done

outside of the presence of the jury, the defense argued that it was the Petitioner's right to enter

his guilty plea before the jury. The defense indicated that it would be presenting a defense of

justification and that the Petitioner would be testifying on his own behalf and admitting that he

possessed an illegal firearm. Furthermore, it is clear from the record that the defense strategy was

                                                                                                      5
 to have the Petitioner appear more credible before the jury for admitting immediately to a crime

he did commit while maintaining his innocence of the murder charge. Furthermore, Petitioner

provided an explanation to the jury as to why he had the gun - for self-protection - since the

decedent had recently threatened him with a gun.


        The court heard argument from both sides and permitted the Petitioner to enter his plea

when arraigned before the jury. The court then held the plea under advisement until the end of

the trial so that no factual basis would be read before the jury.


        The Petitioner was fully colloquied outside of the presence of the jury regarding whether

his plea was knowing, intelligent and voluntary. The Petitioner affirmed that he understood that

he was about to be tried by a jury on the murder and VUFA charges; that by pleading guilty to

the VUF A charges, he was giving up his right to have the jury decide that issue; that he was

giving up his right to claim that he did not possess the gun; that he understood that his appellate

rights were limited to four grounds on the VUFA charges; that he understood the maximum

sentences for the VUFA charges and the Commonwealth's burden of proof at trial. The

Petitioner indicated that no one promised him anything or threatened him in any way to plead

guilty. Twice Petitioner stated that he was satisfied with counsel's representation.


       The test for deciding whether counsel had a reasonable basis for his action or inaction is

whether no competent counsel would have chosen that action or inaction, or whether the

alternative not chosen offered a significantly greater potential for success. Commonwealth v.

Colavita, 993 A.2d 874 (Pa. 2010). Counsel's decisions will be considered reasonable if they

effectuated his client's interests. Commonwealth v. Miller, 987 A.2d 638 (PA. 2009). <•we do not

employ a hindsight analysis in comparing trial counsel's actions with other efforts he may have

taken." Id at 653.

                                                                                                      6
        Petitioner's claim is similar to that at issue in Commonwealth v. Savage, 529 Pa. 108, 602

A.2d 309 ( 1992). In Savage, a murder prosecution, defense counsel disclosed, in his opening

statement, the defendant's prior criminal record involving convictions for attempted burglary and

drug and weapons offenses. Counsel's strategy rested upon the jury believing that the defendant

was credible, since the defendant needed to testify to establish self-defense. To advance this

strategy, counsel wanted to demonstrate that the defendant was willing to be honest about his

past. Following his conviction, the defendant appealed alleging ineffective assistance of counsel.

The Supreme Court of Pennsylvania held that the introduction of the defendant's prior crimes to

vouch for his credibility was not unreasonable, even if unsuccessful, under the circumstances.

        In the instant case, the record reflects that counsel had an objectively reasonable basis for

permitting Petitioner to plead guilty to the gun charges in front of the jury. Prior to accepting the

plea, counsel stated on the record that they would be presenting a defense of self-defense. N.T.

3/15/11 > at p. l 0. During discussions> the Court stated that if they are going to assert self-defense,

Petitioner will be admitting to possessing a gun - "he could do it by testifying or standing in

front of the jury and pleading guilty." Id., at 11. In accordance with defense counsel's strategy, in

her opening statement, defense counsel argued that Petitioner shot the decedent in self-defense.

Id., at pp. 42-43. Petitioner subsequently testified to self-defense at trial. He also testified that

prior to the shooting he had illegally purchased a loaded .9 millimeter firearm and that he carried

the gun every time he left his home. N.T. 3/18/11, at pp, 81-82> 90-91. Petitioner pied guilty to

the same charges that he freely admitted to having committed when he testified at trial. The jury

heard the same evidence - whether he pied guilty to the VUFA charges in front of the jury or

whether he testified and admitted to possessing the gun in front of the jury at trial. The only

difference between the Petitioner pleading guilty before the jury and the Petitioner admitting to


                                                                                                        7
guilt on the witness stand is that the Petitioner appeared more credible by previewing to the jury

that he was willing to come clean right up front about his criminal conduct which contributed to

the incident in question, thereby giving the jury an impression of his sincerity. The fact that the

jury did not believe his version of the events in the end is of no moment since the analysis of the

strategy is not made in hindsight based on outcome.


           It is apparent from the record that trial counsel had a reasonable basis for their strategy

and therefore Petitioner is unable to show prejudice.

           b, Trial/defense counsel was ineffective forfailing to move/or a cautionary

              instruction which would have told the jury that it cannot hold a guilty plea against

              Petitioner when evaluating his culpability 011 all other crimes.


           In her closing arguments, defense counsel argued that the fact that the gun was purchased

illegally had no bearing on whether Petitioner acted in self-defense. N. T. 3/18/11, at p. 136. At

the close of trial, the Court instructed the jury that "the defendant is presumed to remain innocent

throughout the trial unless you) the Jury, conclude based upon careful and impartial

consideration of the evidence that the Commonwealth has proven the defendant guilty beyond a

reasonable doubt of the charges made against him." N.T. 3/21/11, at pp. 5w6, The Court then

instructed the jury on first and third degree murder, voluntary manslaughter, and self-defense.

Id., at pp. 13w21. The Court explicitly told the jury each of the elements which they were

required to find beyond a reasonable doubt in order to find Petitioner guilty of each particular

offense.

       Moreover, trial counsel had a reasonable basis for not requesting a cautionary instruction.

Evidence of Petitioner's guilty plea to VUFA was cumulative of the other evidence elicited


                                                                                                         8
during trial, including Petitioner's own testimony when he testified that he illegally purchased

the firearm and used that firearm to shoot the decedent. A cautionary instruction was not

warranted since this evidence was not admitted as a prior bad act, but as part of a defense

strategy to establish Petitioner's credibility before Petitioner testified.

       Finally, Petitioner is unable to show prejudice: the two eyewitnesses testified at trial that

they had not seen the decedent make any threatening move or action prior to Petitioner shooting

him. N.T. 3/15/11, at p. 124. Furthermore, both testified that the Petitioner shot the unarmed

decedent eleven times. Finally, instead of remaining at the scene, Petitioner fled and remained a

fugitive for six weeks. Therefore, Petitioner is unable to prove that the jury would have

acquitted him of the remaining charges had a cautionary instruction been given.

       c. Ineffective assistance of trial counsel who never informed Petitioner that his

           character witness would be cross-examined as to his prior conviction - which was

           the plea to the VUFA charge, and which Petitioner, thus, never consented to said

           cross-examination,


       A character witness may be cross-examined regarding his knowledge of particular acts of

misconduct by the defendant to test the accuracy of his testimony and the standard by which he

measures reputation. Commonwealth v. Smith, 539 Pa. 128, 135, 650 A.2d 863, 867 (1994)

(quoting Commonwealth v. Peterkin, 511 Pa. 299, 318, 513 A.2d 373, 383 (1986), cert. denied,

479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987)), cert. denied, 514 U.S. 1085, 115 S.Ct.

1799, 131 L.Ed.2d 726 (1995). During jury selection, defense counsel indicated that they

intended to present character testimony for peacefulness. In response, the Commonwealth argued

that Petitioner had three prior convictions which occurred after the murder. N.T. 3/14/11. At pp.

282-283. The Court ruled that the defense could introduce character evidence for the trait of

                                                                                                    9
peacefulness up until the time of the incident. N.T. 3/15/11, at pp. 2-3. During the discussion on

the record about whether the Petitioner would be permitted to plead guilty to the VUFA charges

in front of the jury, the Commonwealth stated, in the presence of Petitioner: "He doesn't have

character for peacefulness if he is pJeading to a gun charge." N .T. 3/15/11, at pp. 10-11. Hence,

Petitioner was clearly alerted to the fact that his character witness could be confronted with

evidence of his guilty plea.

        After the Commonwealth rested, the defense presented character testimony from

Petitioner's grandfather, a former Philadelphia police officer. He testified that Petitioner had a

"very good reputation" for being "a peaceful non-violent person." N.T. 3/18/11, at pp. 70-71. On

cross-examination, the Commonwealth asked the grandfather whether he was aware of the fact

that his grandson was in possession of an illegal firearm in September of 2008. The grandfather

testified that he was not. The Commonwealth then asked whether he was present when Petitioner

"pied guilty to having a gun." Counsel objected, which the Court overruled. Petitioner's

grandfather answered that he was present when Petitioner pied guilty and that the fact that

Petitioner pied guilty to being in possession of an illegal firearm would not change his testimony.

N.T. 3/18/11, at p. 72. As stated previously, Petitioner's plea was held under advisement and

therefore was not a conviction. Furthermore, the Petitioner testified that he was in possession of

the firearm and explained why he had it. Finally, it is clear that Petitioner knew of trial counsel's

strategy. Therefore, the only effect that the character testimony had on the trial was that this

Petitioner received the benefit of a jury instruction on character.


       d,   Petitioner's decision to plead guilty to VUFA was his defense counsel's decision, as

            it appears tltat Petitioner did 1101 meaningfully partake i11 that decision-making

            process, nor could he reacb a knowing, intelligent and voluntary decision as to

                                                                                                     10
            whether he should have pied guilty to that charge without being informed that his

            character witness could he cross-examined about his VUFA plea.

        Petitioner entered into a knowing, intelligent, and voluntary plea to VUFA § 6106 and

VUFA § 6108. This was preceded by a full colloquy on the record explaining the Petitioner's

right to trial by jury. Petitioner indicated, under oath, that he understood his rights and agreed to

plead guilty to the VUFA charges. N.T. 3/15/11, at pp. 17, 20. Petitioner also acknowledged that

he spoke to counsel and that no one threatened or promised him anything. Id. This colloquy was

adequate to show a voluntary and intelligent guilty plea. See Commonwealth v. Williams, 222 Pa.

Super. 484, 294 A.2d 909 (1972). Petitioner was fully advised of the rights which he was

surrendering and nevertheless agreed to plead guilty to VUFA charges.

       Furthermore, as discussed in Issue I(c.), above, the Commonwealth alerted Petitioner to

the fact that his grandfather could be impeached with evidence of the plea. However, assuming,

arguendo, that counsel did not tell Petitioner about this risk, Petitioner cannot show prejudice.

Petitioner's guilty plea was merely cumulative once the Petitioner testified admitting guilt.

Based on the circumstances, the questioning of the character witnesses regarding Petitioner

possessing a weapon was not prejudicial. Rather the testimony from a retired Philadelphia police

officer regarding Petitioner's reputation for being peaceful and non-violent was beneficial.

                                              Issue II

       Petitioner is entitled to a remand of the PCRA Court/or an evidentlary hearing and/or

       permission to withdraw his plea and go to trial as tire Court erred when it denied

       Petitioner's amended PCRA petition wit/tout a hearing as Petitioner was victimized by

       ineffective assistance of counsel.




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        Petitioner claims that the PCRA court erred in failing to hold an evidentiary hearing.

However, a PCRA court may decline to hold a hearing on the petition if the PCRA court

determines that the petitioner's claim is patently frivolous and is without a trace of support in

either the record or from other evidence. Commonwealth v. Jordan> 772 A.2d 1011, 1014

(Pa.Super.2001). A reviewing court on appeal must examine each of the issues raised in the

PCRA petition in light of the record in order to determine whether the PCRA court erred in

concluding that there were no genuine issues of material fact and denying relief without an

evidentiary hearing. Id. Moreover> a PCRA hearing is not a matter of right, and the PCRA court

may decline to hold a hearing ifthere is no genuine issue concerning any material fact and the

petitioner is not entitled to relief as a matter of law. Commonwealth v. Morrison, 878 A.2d 102,

109 (Pa.Super.2005)� see Pa.R.Crim.P. 907(2).

       Here, the record belies Petitioner's claim that his previous counsel was ineffective. The

record supports the PCRA court's factual finding that there was no relief due on the basis of the

ineffectiveness claims raised. Thus, an evidentiary hearing on these issues was not required and

Petitioner is not entitled to a remand or permission to withdraw his plea and go to trial.

                                         CONCLUSION

       Based on the foregoing, the dismissal of Petitioner's PCRA petition should be affirmed.

                                                      By the Court:




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