J-S23011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MARCUS DEANS

                        Appellant                   No. 3344 EDA 2015


               Appeal from the PCRA Order October 8, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0016655-2008

BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                              FILED JUNE 19, 2017

      Appellant, Marcus Deans, appeals from the October 8, 2015 order

denying his first petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm.

      The factual background of this case is as follows. On October 9, 2008,

Richard Bell (“Bell”) and Appellant were present at a craps game at the

corner of 72nd and Greenway Streets in Philadelphia.     Appellant pointed a

gun at Bell’s face and demanded he hand over his money.             Bell gave

Appellant approximately $100.00 in United States currency. Appellant then

ordered Bell to lie down. When Bell refused to lie down, a struggle ensued.

During the struggle, Appellant shot Bell twice – once in the wrist and once in

the abdomen.
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        The procedural history of this case is as follows. On January 9, 2009,

the    Commonwealth        charged   Appellant   via    criminal   information   with

attempted murder,1 aggravated assault,2 carrying a firearm without a

license,3 theft by unlawful taking,4 receiving stolen property,5 carrying a

firearm on the streets of Philadelphia,6 possessing an instrument of crime,7

simple assault,8 recklessly endangering another person,9 and robbery.10 On

December 18, 2009, Appellant was convicted of aggravated assault,

robbery, carrying a firearm on the streets of Philadelphia, possessing an

instrument of crime, and attempted murder.             On April 29, 2010, the trial

court sentenced Appellant to 15 to 30 years’ imprisonment.                On direct

appeal, this Court affirmed Appellant’s convictions; however, this Court

vacated a portion of Appellant’s sentence. Commonwealth v. Deans, 47

1
    18 Pa.C.S.A. §§ 901, 2502.
2
    18 Pa.C.S.A. § 2702(a).
3
    18 Pa.C.S.A. § 6106(a)(1).
4
    18 Pa.C.S.A. § 3921(a).
5
    18 Pa.C.S.A. § 3925.
6
    18 Pa.C.S.A. § 6108.
7
    18 Pa.C.S.A. § 907(a).
8
    18 Pa.C.S.A. § 2701(a).
9
    18 Pa.C.S.A. § 2705.
10
     18 Pa.C.S.A. § 3701(a)(1)(i).



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A.3d 1233 (Pa. Super. 2012) (unpublished memorandum). That vacatur did

not impact Appellant’s aggregate sentence.

        On June 7, 2012, Appellant filed a pro se PCRA petition. Counsel was

appointed and filed an amended petition. At the conclusion of an evidentiary

hearing held on October 8, 2015, the PCRA court denied the petition. This

timely appeal followed.11

        Appellant presents four issues for our review.

     1. [Was trial counsel ineffective in failing] to properly object to and
        preserve on the record the suggestiveness of [Bell’s] in-court
        identification of [] Appellant?

     2. [Was trial counsel ineffective in failing] to interview and
        subpoena essential exculpatory defense witnesses?

     3. [Was trial counsel ineffective in failing] to disclose the existence
        of a plea offer and for misrepresenting the potential sentence
        Appellant would receive if he was found guilty?

     4. [Was appellate counsel ineffective in failing] to challenge the
        sufficiency of the evidence?

Appellant’s Brief at 4.

        “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determinations are supported by the record and are free of legal

error.”    Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014)

(internal quotation marks and citations omitted).        All of Appellant’s issues

11
   On November 9, 2015, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P.1925(b).     On November 30, 2015, Appellant filed his concise
statement. On July 18, 2016, the PCRA court issued its Rule 1925(a)
opinion. All of Appellant’s issues were included in his concise statement.



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allege that his counsel was ineffective at the trial or appellate level. “[T]he

Sixth Amendment to the United States Constitution and Article I, [Section] 9

of the Pennsylvania Constitution, [entitle a defendant] to effective counsel.

This right is violated where counsel’s performance so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.”    Commonwealth v. Simpson, 112 A.3d 1194, 1197

(Pa. 2015) (internal quotation marks and citation omitted).        “[C]ounsel is

presumed to be effective.” Commonwealth v. Patterson, 143 A.3d 394,

398 (Pa. Super. 2016) (citation omitted).        To prevail on an ineffective

assistance of counsel claim, a “petitioner must plead and prove (1) the legal

claim underlying the ineffectiveness claim has arguable merit; (2) counsel’s

action or inaction lacked any reasonable basis designed to effectuate

petitioner’s interest; and (3) counsel’s action or inaction resulted in prejudice

to petitioner.” Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015)

(citation omitted). Where it is clear that a petitioner has failed to satisfy any

one prong of the test, this Court may dispose of the claim on that basis

alone. See Commonwealth v. Faurelus, 147 A.3d 905, 911 (Pa. Super.

2016), appeal denied, 2017 WL 721789 (Pa. Feb. 23, 2017) (citation

omitted).




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      In his first issue, Appellant argues that his trial counsel was ineffective

in failing to object to Bell’s in-court identification of Appellant.12      This

argument is waived. “A failure by Appellant to insure that the original record

certified for appeal contains sufficient information to conduct a proper review

constitutes waiver of the issue sought to be examined.” Commonwealth v.

Martz, 926 A.2d 514, 525 (Pa. Super. 2007), appeal denied, 940 A.2d 363

(Pa. 2008) (internal alteration and citation omitted); see Commonwealth

v. Kennedy, 151 A.3d 1117, 1127 (Pa. Super. 2016).            Appellant’s entire

argument related to this issue is premised on the allegation that Bell’s out-

of-court identification of Appellant from a photo array tainted Bell’s in-court

identification of Appellant. Appellant, however, failed to ensure that a copy

of the photo array appeared in the certified record. As such, we are unable

to determine whether the out-of-court identification was unduly suggestive

and tainted Bell’s in-court identification. Accordingly, Appellant’s first issue

is waived. See Commonwealth v. Stiles, 143 A.3d 968, 978 (Pa. Super.

2016),   appeal   denied,    2016    WL     7106404   (Pa.   Dec.    6,   2016);

Commonwealth v. Manley, 985 A.2d 256, 263–264 (Pa. Super. 2009),

appeal denied, 996 A.2d 491 (Pa. 2010); Martz, 926 A.2d at 525.


12
   Appellant also argues that his appellate counsel was ineffective for failing
to raise trial counsel’s ineffectiveness in this regard. Ineffective assistance
of counsel claims, however, can ordinarily only be raised on collateral
review. See Commonwealth v. Holmes, 79 A.3d 562, 563-564 (Pa.
2013). Therefore, appellate counsel was not ineffective for failing to allege
trial counsel’s ineffectiveness on direct appeal.



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      In his second issue, Appellant argues that trial counsel was ineffective

in failing to interview Bernard Brooks (“Brooks”) and call him as a witness at

trial. Appellant contends that Brooks would have testified that he was also

present at the craps game and a different individual shot Bell. As this Court

has explained:

      To prevail on a claim that counsel was ineffective for failing to
      call [a] witness[], [Appellant] must demonstrate: (1) the
      witness[] existed; (2) the witness[ was] available to testify; (3)
      counsel knew, or should have known, the witness[] existed; (4)
      the witness[ was] willing to testify; and (5) the absence of the
      witness[’] testimony was so prejudicial that it denied [Appellant]
      a fair trial.

Commonwealth v. Solano, 129 A.3d 1156, 1166 (Pa. 2015) (citation

omitted). Similarly, “[a] claim that trial counsel did not . . . interview [a]

known witness[] presents an issue of arguable merit where the record

demonstrates      that    counsel   did   not   perform   an   investigation.”

Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013), appeal

denied, 93 A.3d 463 (Pa. 2014).

      At the PCRA hearing, Appellant’s trial counsel testified that Brooks was

not a known witness because Brooks never contacted him about the instant

case and Appellant never notified him regarding Brooks’ existence.         See

N.T., 10/8/15, at 35-37.13 Brooks testified that he called trial counsel and


13
   Appellant argues that trial counsel did not testify that Brooks failed to
contact him. See Appellant’s Brief at 28-30. This argument is without
merit. Counsel testified that, if Brooks contacted him, he would have
interviewed Brooks to determine if he should be called as a witness. See
(Footnote Continued Next Page)


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went to his office to give a statement. See id. at 58-59. Appellant testified

that he told trial counsel about Brooks. See id. at 90.

        The PCRA court found that Appellant failed to prove that his trial

counsel knew, or should have known, that Brooks existed. The PCRA court

found     defense   counsel’s      testimony     credible    and   found   Brooks’   and

Appellant’s testimony not credible. This factual finding is supported by the

record.    Brooks’ testimony was vague and he was unable to recall several

important details regarding his alleged contact with trial counsel.             On the

other hand, trial counsel’s testimony was supported by a letter he sent to

Appellant several years prior to the PCRA hearing.

        Moreover, after observing Appellant testify at the PCRA hearing, the

PCRA court found his testimony not credible.                N.T., 10/8/15, at 139.    In

addition to witnessing Appellant’s demeanor on the stand, a letter Appellant

sent to trial counsel severely hurt his credibility.           A reasonable inference

from that letter was that Appellant attempted to convince his trial counsel to

lie in order to obtain PCRA relief. Therefore, Appellant’s argument that the

PCRA court’s factual finding was clearly erroneous is without merit. As the

PCRA court’s factual finding that Appellant failed to prove that trial counsel
                       _______________________
(Footnote Continued)
N.T., 10/8/15, at 37. All parties agree that trial counsel never interviewed
Brooks. The only reasonable inference from trial counsel’s testimony is that
Brooks never contacted him. Moreover, trial counsel testified that he sent a
letter to Appellant in 2013 stating that Brooks never contacted him. See id.
at 35-36. Trial counsel further testified that he sent the letter because he
independently remembered, in 2013, that Brooks failed to contact him prior
to trial. See id. at 36.



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knew, or should have known, Brooks existed, is supported by the record, the

PCRA court did not err in denying Appellant relief on this ineffective

assistance of counsel claim.

      In his third issue, Appellant argues that trial counsel was ineffective in

failing to communicate a plea offer made by the Commonwealth and failing

to properly advise him of the potential sentence if convicted at trial.       In

order to be entitled to relief on a claim that trial counsel failed to

communicate a plea offer, a petitioner must plead and prove that “(1) an

offer for a plea was made; (2) trial counsel failed to inform him of such

offer; (3) trial counsel had no reasonable basis for failing to inform him of

the plea offer; and (4) he was prejudiced thereby.”        Commonwealth v.

Chazin, 873 A.2d 732, 735 (Pa. Super. 2005), appeal denied, 887 A.2d

1239 (Pa. 2005) (citation omitted).

      Trial counsel testified that it was his standard practice to communicate

all plea offers to his client. N.T., 10/8/15, at 24. He testified because this is

his standard practice, he communicated the Commonwealth’s plea offer to

Appellant. See id. at 24-26. The prosecutor assigned to the case testified

that Appellant was present when the plea offer was communicated. See id.

at 119-122. Her testimony was supported by her contemporaneous notes

regarding Appellant’s case.    On the other hand, Appellant testified that he

did not learn of the plea offer until 2010. The trial court found trial counsel’s

and the prosecutor’s testimony credible and found all of Appellant’s



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testimony not credible. This factual finding is supported by the record. In

addition to observing Appellant’s demeanor at the PCRA hearing, the PCRA

court noted that Appellant did not allege trial counsel failed to notify him of

the plea offer in his pro se PCRA petition nor did he mention this alleged

omission in his letter to trial counsel referenced above. Instead, Appellant

waited several years after allegedly learning of the plea offer to raise the

issue in his amended PCRA petition.

      Appellant also argues that trial counsel incorrectly advised him that he

would be sentenced to no more than five to ten years’ imprisonment if

convicted at trial.   Trial counsel testified that he notified Appellant he was

facing a mandatory minimum term of five to ten years’ imprisonment if

convicted at trial; however, trial counsel testified that he notified Appellant

that the statutory maximum penalty was 50 to 100 years’ imprisonment if

convicted at trial. See N.T., 10/8/15, at 15. Appellant and his sister, on the

other hand, testified that trial counsel stated that the maximum penalty

Appellant could receive if convicted at trial was five to ten years’

imprisonment.    See id. at 71, 85.     The PCRA court found trial counsel’s

testimony credible and found Appellant’s and his sister’s testimony not

credible. This factual finding was supported by the record.

      As noted above, the trial court’s factual finding that Appellant was

present when the Commonwealth offered a plea deal was supported by the

record.   This plea deal included Appellant serving more than five to ten



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years’ imprisonment.       It would be nonsensical for the Commonwealth to

offer Appellant a plea deal in which he would serve more jail time than if he

were convicted at trial.

      Throughout his brief, particularly in the portion addressing his third

issue, Appellant argues that the PCRA court’s factual findings are clearly

erroneous because of trial counsel’s inability to independently recall this case

and the lack of documentary evidence supporting trial counsel’s testimony.

This argument fails for several reasons. First, as noted above, trial counsel’s

testimony was consistent with a letter sent to Appellant when trial counsel

had an independent recollection of the case. Trial counsel’s testimony was

also supported by the prosecutor’s testimony.      The prosecutor’s testimony

was based upon her contemporaneous notes regarding Appellant’s case.

Second, Appellant’s and Brooks’ testimony was similarly vague and

unsupported by contemporaneous documentation.            Finally, our Supreme

Court rejected a similar argument in Commonwealth v. Chmiel, 30 A.3d

1111 (Pa. 2011).    In that case, the petitioner argued that the PCRA court

erred by relying on the hazy recollection of trial counsel.      Our Supreme

Court rejected this argument and concluded that the PCRA court did not err

in finding trial counsel’s testimony credible.   See id. at 1159.    The PCRA

court in the case sub judice made credibility determinations and credited

trial counsel’s testimony over Appellant’s and Brooks’ testimony.       As this




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factual finding was not clearly erroneous, we conclude that the PCRA court

properly denied Appellant relief on this ineffectiveness claim.

      In his final issue, Appellant argues that appellate counsel was

ineffective in failing to include a challenge to the sufficiency of the evidence

in his concise statement of errors complained of on appeal. See Pa.R.A.P.

1925(b).   He argues that the failure to preserve his sufficiency challenge

prejudiced him because Bell’s testimony was insufficient to identify him as

the gunman. When evaluating a challenge to the sufficiency of the evidence,

a court must determine “whether viewing all the evidence admitted at trial in

the light most favorable to the [Commonwealth], there is sufficient evidence

to enable the fact–finder to find every element of the crime beyond a

reasonable doubt.” Commonwealth v. Williams, 153 A.3d 372, 375 (Pa.

Super. 2016) (citation omitted).      “The evidence need not preclude every

possibility of innocence and the fact-finder is free to believe all, part, or none

of the evidence presented.” Kennedy, 151 A.3d at 1121(citation omitted).

      Eyewitness identification of a defendant is sufficient to prove a

defendant was the perpetrator of an offense.           See Commonwealth v.

Kendricks, 30 A.3d 499, 509 (Pa. Super. 2011), appeal denied, 46 A.3d

716 (Pa. 2012). In this case, Bell, an eyewitness, identified Appellant as the

gunman.       Appellant’s   argument,   related   to   the   reliability   of   Bell’s

identification, goes to the weight of the evidence, not its sufficiency.         See

Commonwealth v. Brewington, 740 A.2d 247, 251 (Pa. Super. 1999),



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appeal denied, 758 A.2d 660 (Pa. 2000).         As such, Appellant’s underlying

sufficiency claim lacks arguable merit and appellate counsel was not

ineffective for failing to preserve this issue for direct appellate review.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/19/2017




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