J-S16041-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL PURVIS,                            :
                                               :
                       Appellant               :       No. 785 EDA 2019

               Appeal from the PCRA Order Entered March 4, 2019
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006879-2009

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                FILED JUNE 9, 2020

        Michael Purvis (“Purvis”) appeals from the Order dismissing his Petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its Opinion, the PCRA court set forth the relevant history underlying

this case as follows:

        On August 28, 2008, Samir Rice [(“Rice”)] was shot multiple times
        and killed as he exited a SEPTA bus at the corner of 21 st and
        Diamond Streets in the city of Philadelphia.            Several bus
        passengers witnessed the shooting and provided a description of
        the shooter to police. Several months later, police interviewed
        Derrick Williams [(“D. Williams”)] while he was jailed on unrelated
        charges. [D. Williams] told police that [Purvis] shot []Rice. [D.
        Williams] stated that on the day of the shooting, he was sitting on
        his front stoop with his then-girlfriend[,] Zikia Taylor [(“Taylor”)],
        his mother[,] Kelly Williams [(“K. Williams”)], and Zikia’s
        grandmother[,] Lucinda West [(“West”)], when they saw [Purvis]
        running down the block holding his pants. [Purvis], who was
        dating [D. Williams]’s sister at the time, ran into the []home[,]

____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
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        out of breath, told them he had “just been in a shootout,” and
        needed a new shirt to change into and a place to hide his gun. [D.
        Williams] stated that [Purvis] returned a week later to retrieve his
        gun, which had been hidden in the backyard, and paid [D.
        Williams] for hiding it for him. Police then interviewed Taylor, K.
        Williams, and West, and they all told police the same version of
        [the] events.     All of these witnesses later recanted their
        testimony. Evidence presented at trial showed several instances
        of witness intimidation: [K. Williams] received threatening phone
        calls instructing her not to testify; [D. Williams] was knifed in
        prison and received several notes calling him a “rat;” [and D.
        Williams] also discovered that someone had placed 20 copies of
        his police statement in the prison law library. After Taylor gave
        her statement to police, [Purvis] began a romance with her, which
        resulted in [Taylor]’s and [West]’s recantation.

PCRA Court Opinion, 6/28/19, at 1-2.

        Purvis was tried by jury in June of 2012 and February of 2013. Both

trials resulted in hung juries. Purvis was tried for a third time, from March 17

to March 25, 2014, after which the jury convicted Purvis of murder of the first

degree, carrying a firearm without a license, and possessing instruments of

crime.2 On March 26, 2014, the trial court sentenced Purvis to the mandatory

sentence of life in prison on the count of murder of the first degree and

concurrent sentences on the remaining counts.         Purvis filed a timely post

sentence Motion, which the trial court denied by operation of law. This Court

affirmed Purvis’s judgment of sentence, after which the Pennsylvania Supreme

Court denied allowance of appeal. See Commonwealth v. Purvis 133 A.3d

67 (Pa. Super. 2015) (unpublished memorandum), appeal denied, 129 A.3d

1242 (Pa. 2015).


____________________________________________


2   18 Pa.C.S.A. §§ 2502(a); 6106; 907.

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       On December 9, 2016, Purvis, pro se, timely filed his first Petition for

relief under the PCRA. Purvis was appointed counsel, who filed an Amended

PCRA Petition and a Supplemental Amended PCRA Petition. Purvis claimed

that trial counsel was ineffective for failing to call Venita Irvin (“Irvin”), a

passenger on the bus at the time of the shooting, to testify, and for failing to

object when the Commonwealth introduced Purvis’s PennDOT driver’s license

Photograph to impeach witness testimony that Purvis had a goatee at the time

of the shooting. The Commonwealth filed a Motion to Dismiss, and the PCRA

court subsequently issued an appropriate Notice of Intent to Dismiss pursuant

to Pa.R.Crim.P. 907. Purvis filed a pro se Response, and on March 4, 2019,

the PCRA court dismissed Purvis’s PCRA Petition without a hearing. Purvis

timely filed a Notice of Appeal, followed by a pro se Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.3

       Purvis presents the following claim for our review: “[Whether] the

[PCRA] court err[ed] by denying [Purvis]’s [PCRA] Petition where the record

clearly showed that trial counsel was ineffective?” Brief for Appellant at 8.

       When reviewing an appeal from the denial of PCRA relief,

       we must determine whether the findings of the PCRA court are
       supported by the record and whether the court’s legal conclusions
       are free from error. The findings of the PCRA court and the
       evidence of record are viewed in a light most favorable to the
       prevailing party. The PCRA court’s credibility determinations,
____________________________________________


3The PCRA court did not order Purvis to file a Rule 1925(b) concise statement.
See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (explaining that a
pro se concise statement filed while the appellant is represented by counsel
on appeal was a “legal nullity”).

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      when supported by the record, are binding; however, this court
      applies a de novo standard of review to the PCRA court’s legal
      conclusions. We must keep in mind that the petitioner has the
      burden of persuading this Court that the PCRA court erred and
      that such error requires relief. Finally, the Court may affirm a
      valid judgment or order for any reason appearing of record.

Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations

omitted).

      Purvis challenges the effectiveness of his trial counsel, and presents two

arguments for our review, which we will address separately. In his first issue,

Purvis contends that his trial counsel was ineffective for failing to call Irvin as

a witness. Brief for Appellant at 28. Purvis claims that Irvin’s testimony was

crucial to the jury’s decision because the “entire case” was built upon the

“suspect testimony” of Taylor, D. Williams, K. Williams, and West. Id. at 29.

According to Purvis, these witnesses were the only connection between him

and the shooting, and all four witnesses “had major credibility issues.” Id.

Purvis contends that all four witnesses were uncooperative on the stand and

recanted their prior statements. Id. at 29-30. Further, Purvis claims that

Irvin had the “best view” of the shooting and that her testimony was crucial,

not only to rebuff the “suspect testimony” of his friends and family, but

because Irvin was an independent observer with no motive to lie. Id. at 36-

37. Additionally, Purvis argues that Irvin’s testimony would have corroborated

testimony from other witnesses that the shooter was wearing a white t-shirt,

not a blue or black polo shirt, as D. Williams and K. Williams claimed Purvis

was wearing. Id. at 36, 38.

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      Counsel is presumed to be effective and “the burden of demonstrating

ineffectiveness rests on [the] appellant.”   Commonwealth v. Rivera, 10

A.3d 1276, 1279 (Pa. Super. 2010).

      To satisfy this burden, an appellant must plead and prove by a
      preponderance of the evidence that[] (1) his underlying claim is
      of arguable merit; (2) the particular course of conduct pursued by
      counsel did not have some reasonable basis designed to effectuate
      his interests; and, (3) but for counsel’s ineffectiveness there is a
      reasonable probability that the outcome of the challenged
      proceeding would have been different. Failure to satisfy any prong
      of the test will result in rejection of the appellant’s ineffective
      assistance of counsel claim.

Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal

citations and quotation marks omitted). The failure to prove any prong of this

test will defeat an ineffectiveness claim. Commonwealth v. Fears, 86 A.3d

795, 804 (Pa. 2014).

      When a petitioner raises a claim of ineffectiveness based on counsel’s

failure to call a potential witness, the petitioner can satisfy the performance

and prejudice requirements by establishing

      (1) the witness existed; (2) the witness was available to testify
      for the defense; (3) counsel knew of, 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 testimony of the
      witness was so prejudicial as to have denied the defendant a fair
      trial.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations

omitted).   Further, a petitioner “must show how the uncalled witnesses’

testimony would have been beneficial under the circumstances of the case.”

Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008); see also


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Commonwealth v. Auker, 681 A.2d 1305, 1319 (Pa. 1996) (stating that

“[c]ounsel will not be found ineffective for failing to call a witness unless the

petitioner can show that the witness’s testimony would have been helpful to

the defense.”). “A failure to call a witness is not per se ineffective assistance

of counsel [because] such decision usually involves matters of trial strategy.”

Id.

      In its Opinion, the PCRA court addressed this issue as follows:

      Irvin’s testimony was merely corroborative of other witness
      testimony and was not “crucial” to the jury’s decision[]. The
      record shows that []Irvin was a passenger on the bus who
      witnessed the shooting. She gave a statement to the police
      regarding the shooting and described the shooter as wearing a
      white t-shirt. She testified at the first trial, which ended in a hung
      jury, but did not testify at the second or third trials. At the third
      trial, defense counsel called Lydia Jenkins [(“Jenkins”)] to testify,
      another bus passenger who also described the shooter as wearing
      a white t-shirt. This was the same testimony that []Irvin would
      have provided[,] as she was merely a bus passenger who
      witnessed the event; she was not an identifying witness who
      actually knew [Purvis] personally. Thus, []Irvin’s description of
      the shooter wearing a white shirt was corroborative of []Jenkins’
      testimony[,] and [Purvis] has failed to show how []Irvin’s absence
      at his third trial was prejudicial to him.

            [Purvis] further claims that []Irvin’s testimony was “crucial
      to the jury’s decision since [Irvin] testified at the first trial[,] which
      resulted in a hung jury, and she did not testify at the third trial[,]
      which resulted in a conviction. [Purvis] argues that this proves
      her testimony was significant to the jury’s decision-making.
      However, []Irvin also did not testify at his second jury trial[,]
      which also resulted in a hung jury. Thus, []Irvin’s testimony was
      not the deciding factor which would have resulted in a different
      verdict. [Therefore, Purvis] is unable to meet the reasonable basis
      and prejudice prongs to establish ineffectiveness[.]




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PCRA Court Opinion, 6/28/19, at 5. Our review confirms the PCRA court’s

analysis and conclusion that Purvis failed to establish prejudice, because he

did not demonstrate that Irvin’s testimony would be beneficial to him. See

Gibson, supra.

      In his second claim, Purvis contends that trial counsel was ineffective

for failing to object when the Commonwealth introduced his driver’s license

photograph as an exhibit at trial.     Brief for Appellant at 39.   According to

Purvis, the Commonwealth used the photograph to impeach witness testimony

that Purvis had a goatee at the time of the shooting. Id. Purvis argues that

the Commonwealth presented this photograph and claimed it was taken on

May 3, 2008, when it was actually taken in November 2005. Id. Further,

Purvis argues that the photograph depicts Purvis as being clean shaven, but

that he had a goatee at the time of the shooting. Id. at 40. Purvis claims the

photograph erroneously led the jury to believe that Purvis was clean shaven

at the time of the shooting.     Id.   Purvis claims that trial counsel had no

reasonable basis for failing to object to the introduction of the photograph.

Id. at 41.

      In his appellate brief, Purvis failed to develop the “reasonable basis”

prong of his ineffectiveness claim, beyond a bald claim that trial counsel lacked

a reasonable basis for not objecting to the introduction of the photograph.

See Commonwealth v. Jones, 811 A.2d 994, 1003 (Pa. 2002) (stating that

merely asserting that counsel had no reasonable basis for inaction is


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insufficient to warrant any type of PCRA relief and an appellant must show the

appellate court some evidentiary proffer); see also Commonwealth v.

Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (noting that boilerplate allegations

and bald assertions cannot satisfy a petitioner’s burden to prove ineffective

assistance of counsel).   Because Purvis failed to develop this prong of his

ineffectiveness claim, his challenge to the effectiveness of counsel on this

basis is waived. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.

2009) (stating that “where an appellate brief fails to provide any discussion of

a claim with citation to relevant authority[,] or fails to develop the issue in

any other meaningful fashion capable of review, that claim is waived.”); see

also Fears, supra.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/09/2020




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