J-S28019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

TODD V. CALHOUN,

                          Appellant                  No. 1205 MDA 2014


             Appeal from the PCRA Order entered June 20, 2014,
                in the Court of Common Pleas of York County,
             Criminal Division, at No(s): CP-67-CR-0006309-2009


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY ALLEN, J.:                               FILED JUNE 05, 2015

      Todd V. Calhoun (“Appellant”) appeals from the order denying his

petition for post-conviction relief filed pursuant to the Post Conviction Relief

Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. In addition, PCRA counsel has filed

a petition to withdraw. We affirm.

      We previously detailed the pertinent facts and procedural history as

follows:

           On July 26, 2009, Officer Lisa Daniels of the York City
           Police Department responded to a radio report of a
           shooting in the area of Smyser Street in York County. On
           arriving at the scene, Officer Daniels observed the victim,
           Shawn Bailey, lying face down in the street, having
           sustained three gunshot wounds.          Witnesses to the
           shooting reported to police that they saw three or four
           men in a black Jeep and red Saturn shoot at the victim,
           and identified Appellant as being among the shooters.
           Police officers subsequently arrested and charged
           Appellant with [aggravated assault and related] crimes.
           The Commonwealth requested numerous continuances of
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       trial which the trial court granted, and on July 30, 2010,
       Appellant filed a motion pursuant to Pa.R.Crim.P. 600
       seeking dismissal of the charges against him for failure of
       the Commonwealth to bring him to trial within 365 days.
       The trial court denied Appellant’s Rule 600 motion on
       August 5, 2010. A jury trial commenced on August 9,
       2010, and on August 11, 2010, the jury returned its guilty
       verdict.

                                  ***

           At trial, Diamond Bailey, the victim’s sister, testified
       that at the time of the shooting, she was standing on
       Smyser Street with the victim and saw four men, one of
       whom was Appellant, on the street together near a red
       two-door sedan and a black jeep. She testified that she
       heard Appellant say “this is what we do”, and immediately
       thereafter the victim was shot. Ms. Bailey testified that
       she saw two of the men who were standing with Appellant
       fire guns at the victim. While Ms. Bailey stated that she
       did not actually see Appellant fire a gun at the victim, she
       stated that she witnessed the shots being fired from the
       group of men whom Appellant was with.            Ms. Bailey
       testified that after the shooting stopped, one of the men
       came back and “picked up [the victim’s] hat, I guess like a
       souvenir to show that they shot him, and took off with his
       hat.”

          Rachel Garner, a witness to the shooting, testified that
       she was in her apartment when she heard Appellant and
       the victim arguing. She then looked out of her window
       and saw Appellant and the victim standing right in front of
       each other, having a disagreement.       She stated that
       immediately following the argument, she heard gunfire and
       saw the victim being shot at, though she did not know
       precisely who fired the shots. She stated that after the
       shooting began, she saw the victim fire a weapon at
       Appellant.

          Lachara Wintermeyers also testified at trial.        Ms.
       Wintermyers explained that Appellant is the father of her
       son, and that prior to the shooting, she had been in a
       relationship with the victim. She further testified that on
       at least one occasion prior to the shooting, Appellant had
       expressed disapproval of her relationship with the victim,


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       and asked Ms. Wintermyers if she was going to make him
       “fuck this nigga up” and/or “pop this nigga”, referring to
       the victim. Ms. Wintermyers testified that on the day of
       the shooting, Appellant had called the victim and told him
       to “leave Lachara alone.”

          The victim testified at trial that on the date of the
       incident, he was walking towards Smyser Street when he
       received a telephone call from Appellant in which Appellant
       informed the victim that he was waiting for him on Smyser
       Street.   On arrival at the scene, the victim observed
       Appellant standing in the middle of the street. Two other
       unidentified men then drove up and stepped into the
       street. Appellant made eye contact with the two other
       men, who split up on either side of the street and began
       walking towards the victim. Appellant and the victim
       began to argue, after which Appellant said, “this is what
       we do” and immediately thereafter, the victim heard
       gunshots being fired at him. The victim testified that he
       saw Appellant’s companions shoot at him, but did not
       know whether or not Appellant fired a weapon at him. The
       victim further testified that prior to the shooting, he
       received threats from Appellant warning him to stay away
       from Ms. Wintermyers.

          Detective George Ripley of the York City Police testified
       that he interviewed Appellant on August 11, 2009.
       Detective Ripley testified that during the interview,
       Appellant reported that on the date of the incident he
       telephoned the victim and told him to “leave Lachara
       alone.” Later that afternoon, Appellant again called the
       victim, and then, along with a companion named “C-
       Murder”, drove to Symser Street, in a red Saturn, to meet
       the victim. Appellant stated to [Detective] Ripley that
       prior to arriving on Smyser Street, he made a telephone
       call to an individual named Brad [Markle], informed Mr.
       [Markle] that he was going to meet the victim on Smyser
       Street, and asked Mr. [Markle] to “get his back.” Appellant
       stated that on the way to Smyser Street he “took off his
       earrings and his hat, in preparation to fight” with the
       victim, but that upon arriving at Smyser Street, the victim
       appeared with a weapon and shot at Appellant. Appellant
       stated that during the time the shooting occurred, he did
       not know that Mr. [Markle] was firing a weapon. Appellant


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        additionally denied having a gun or shooting a gun on the
        date of the incident.

Commonwealth v. Calhoun, 38 A.3d 92 (Pa. Super. 2011), unpublished

memorandum at 1-2; 8-11 (footnote and citations omitted).

     Following a two-day trial, on August 11, 2010, a jury convicted

Appellant on all charges. Thereafter, Appellant filed post-trial motions that

the trial court denied on November 24, 2010. That same day, the trial court

sentenced Appellant to an aggregate term of 5½ to 11 years of

imprisonment. Appellant filed a timely appeal to this Court. On November

4, 2011, we rejected Appellant’s substantive claims and affirmed his

judgment of sentence.       Calhoun, supra.     On September 17, 2012, our

Supreme   Court    denied   Appellant’s   petition   for   allowance   of   appeal.

Commonwealth v. Calhoun, 53 A.3d 756 (Pa. 2012).

     On September 9, 2013, Appellant filed a pro se PCRA petition, and the

PCRA court appointed counsel to represent him.             PCRA counsel filed an

amended PCRA petition on November 6, 2013, in which he claimed that trial

counsel was ineffective for failing to call Brad Markle as a defense witness.

The Commonwealth filed its response on April 16, 2014. On June 20, 2014,

the PCRA court held an evidentiary hearing at which Mr. Markle, Appellant,

and trial counsel testified. At the conclusion of the PCRA hearing, the PCRA

court entered an order denying Appellant’s amended petition.           This timely

appeal followed.   Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.



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        In lieu of an advocate’s brief, Appellant’s counsel has filed a purported

Anders1 brief and a petition to withdraw. Compliance with Anders applies

to counsel who seeks to withdraw from representation on direct appeal.

Anders imposes stricter requirements than those imposed when counsel

seeks    to   withdraw       during   the      post-conviction    process   pursuant    to

Commonwealth            v.    Turner,       544     A.2d    927     (Pa.    1988),     and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.

2004).    Thus, we will assess counsel’s assertion that the issues Appellant

wishes to raise have no merit under a Turner/Finley analysis.

        This Court has recently explained:

              The Turner/Finley decisions provide the manner for
          [PCRA counsel] to withdraw from representation.            The
          holdings of those cases mandate an independent review of
          the record by competent counsel before a PCRA court or
          appellate court can authorize an attorney’s withdrawal. The
          necessary independent review requires counsel to file a “no-
          merit” letter detailing the nature and extent of his review
          and list each issue the petitioner wishes to have examined,
          explaining why those issues are meritless. The PCRA court,
          or an appellate court if the no-merit letter is filed before it,
          see Turner, supra, then must conduct its own independent
          evaluation of the record and agree with counsel that the
          petition is without merit. . . .

              [T]his Court [has] imposed additional requirements on
          counsel that closely track the procedure for withdrawing on
          direct appeal.      . . .       [C]ounsel is required to
          contemporaneously serve upon his [or her] client his [or
          her] no-merit letter and application to withdraw along with
____________________________________________


1
    Anders v. California, 386 U.S. 738 (1967).




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        a statement that if the court granted counsel’s withdrawal
        request, the client may proceed pro se or with a privately
        retained attorney. . . .


Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation

omitted).

      Here, counsel has substantially complied with the mandates of Turner

and Finley, as summarized in Reed, supra. “Accordingly, we will proceed

with our independent review of the questions presented to determine if

counsel correctly concluded that the issues raised had no merit.” Reed, 107

A.3d at 141.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported   by   the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).     Moreover, 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

(Pa. Super. 2001).

      In his sole claim raised on appeal, Appellant maintains that trial

counsel was ineffective for failing to call Mr. Markle to testify as a defense


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witness. See Appellant’s Brief at 4. In order to establish that trial counsel

was ineffective for failing to investigate and/or call a witness at trial, a PCRA

petitioner must demonstrate that:

        (1) the witness existed; (2) the witness was available; (3)
        trial counsel was informed of the existence of the witness or
        should have known of the witness’s existence; (4) the
        witness was prepared to cooperate and would have testified
        on appellant’s behalf; and (5) the absence of the testimony
        prejudiced appellant.


Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) (citation

omitted).

      Here, the PCRA court summarized the testimony from the evidentiary

hearing as follows:

            At the PCRA hearing in this case, trial counsel []
         testified that one of the reasons why he did not call
         Bradley Markle to testify was that Mr. Markle’s statement
         totally contradicted what [Appellant] told Detective Ripley.
         Mr. Markle’s notarized Affidavit presented to the [PCRA]
         Court in support of the PCRA Petition (Attached to the
         Petition as “Exhibit A”), as well as his testimony at the
         PCRA hearing, indicates that Mr. Markle just happened to
         see [Appellant] in another vehicle while driving down the
         street, tried to get [Appellant] to stop in the hopes of
         collecting some money that was owed to Mr. Markle by
         [Appellant], but before Mr. Markle could talk with
         [Appellant], [the victim] approached holding a gun and
         started firing at [Appellant]. Mr. Markle further testified
         that [Appellant] did not call him to meet for a fight or an
         altercation with another person. This version of events by
         Mr. Markle contradicts not only [Appellant’s] statements to
         Detective Ripley, but also contradicts the version of events
         Mr. Markle, as a co-defendant, gave when he pled guilty to
         Recklessly Endangering Another Person before the
         Honorable Stephen P. Linebaugh.


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Trial Court Opinion, 10/10/14, at 2-3 (citations to notes of testimony

omitted).

      The PCRA court then quoted from Mr. Markle’s guilty plea colloquy,

noting that Mr. Markle admitted that he was “aware that some type of

confrontation was going to occur and that eventually shots were fired.” Id.

at 3 (quoting N.T., 7/12/10, at 6). During the colloquy, Mr. Markle further

admitted that he “got a phone call about another case, and I went to help a

friend out.” Id. The PCRA court attached a copy of Mr. Markle’s guilty plea

colloquy to its Pa.R.A.P. 1925(a) opinion.

      The PCRA court then concluded:

         This version of events as told by Mr. Markle is consistent
         with the statement [Appellant] made to Detective Ripley
         on August 11, 2009. During this interview with Detective
         Ripley, [Appellant] stated that prior to the shooting
         incident, he called Mr. Markle and advised him where he
         was going, that he was going to see this guy, or see the
         dude, and that he asked Mr. Markle “to get his back.”

            However, the version of events as told by Mr. Markle
         under oath during his guilty plea was inconsistent with
         the Affidavit in support of [Appellant’s] PCRA and his
         testimony at the PCRA hearing.          The [PCRA] Court
         questioned Mr. Markle at the hearing about this
         inconsistency, and Mr. Markle’s responses in that regard
         did nothing to explain why his versions differed.

            This guilty plea under oath by Mr. Markle to Recklessly
         Endangering Another Person was another reason [trial
         counsel] gave at the hearing for his decision not to call Mr.
         Markle to testify. Specifically, if [trial counsel] had called
         Mr. Markle to testify, he was concerned that the
         Commonwealth would cross-examine Mr. Markle about
         why, if this is self-defense, did he plead guilty to anything.



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            In addition, [trial counsel] testified that he was
         concerned that the jury would not necessarily believe that
         Bradley Markle just happened to get [to the scene] at the
         precise moment when [the victim] came out firing,
         indicating that it would be quite a coincidence, especially
         given [Appellant’s] statement to Detective Ripley.

            Given that Mr. Markle’s Affidavit in support of
         [Appellant’s] PCRA and his testimony at the PCRA hearing
         contradict both his guilty plea under oath and
         [Appellant’s] statement to Detective Ripley, calling Mr.
         Markle as a witness at [Appellant’s] trial was not only not
         necessary to avoid prejudice, but the likelihood was great
         that it would have been prejudicial to [Appellant]. As a
         result, [trial counsel] was not ineffective for not calling
         Bradley [Markle] to testify.

PCRA Court Opinion, 10/10/14, 3-5 (citations to notes of testimony

omitted).

      Our     review of the   certified record supports the      PCRA court’s

conclusion.    In particular, we note the following exchange between PCRA

counsel and trial counsel:

         Q. Why was Mr. Markle initially - - why did you wish to
         have him testify as a witness?

         A. He may have been good for us if they had not
         introduced [Appellant’s] statement that he gave to
         Detective Ripley, that’s one reason, because [Mr. Markle’s
         proposed testimony] totally contradicted what [Appellant]
         had told Detective Ripley.

            Number two, you know, I – the way the trial went, I
         thought it went pretty well. I mean, you know, when you
         asked me the question, I will tell you why I didn’t call [Mr.]
         Markle, but - -

              [PCRA COUNSEL]: I’m getting - - but - -

           THE COURT: Well, why don’t we just ask the question.
         Why didn’t you call Bradley Markle?


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          [PCRA COUNSEL]: I was trying to first get into why he
       thought his testimony would be beneficial with regards to
       the charges, but I think he just did that.

       BY [PCRA COUNSEL]:

       Q. So why did you not call Mr. Markle?

       A. Yeah, I mean, I had him available because, you know, I
       didn’t know exactly - - well, I thought I knew what was
       going to happen at trial, but, you know, sometimes things
       happen.

           The reason I didn’t call Brad Markle is, as I just said,
       number one, things appeared to be going pretty well for us
       as far as any kind of self-defense claim. I didn’t think [the
       victim] came off particularly well, now one of the other
       witnesses.     I don’t remember her name.              Again,
       [Appellant] gave a - - Mr. Markle testified here today that
       it was just happenstance that he ran into [Appellant] down
       at the area where this occurred. What [Appellant] told
       Detective Ripley is that [Appellant] had called Brad Markle
       and told Brad Markle or requested him to come down to
       that location to get his back, that he was going to see
       some dude, and he wanted Brad Markle there to get his
       back.

          If I would have introduced - - well, if I put [Mr.] Markle
       up, that’s totally going to contradict what my client said,
       you know, and it did come out through a statement to
       Ripley exactly what [Appellant] said, that [Appellant] didn’t
       do anything, that [Appellant] got there and [the victim]
       came out firing, and that [Appellant] didn’t have a gun so
       he had exculpatory information in his statement. That way
       I didn’t have to put [Appellant] on the stand to testify at
       the trial.

           But again, [Mr. Markle’s proposed testimony] would
       have totally contradicted what [Appellant] said. You know,
       quite frankly, I was concerned the jury would not
       necessarily believe that Brad Markle just happens to get
       there at the precise moment when [the victim] comes out
       firing.   That’s quite a coincidence especially given
       [Appellant’s] statement.    And I think it was Lachara
       Wintermeyers who testified at trial, who was with


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           [Appellant], who, if I recall said that he called or was
           making phone calls on her phone.

              You know, [the prosecutor’s] theory of the cases was []
           [Appellant] indicated he didn’t have a gun. His theory was
           he didn’t really care if [Appellant] had a gun or not, that
           he orchestrated, [Mr.] Markle, the third guy and him to be
           there knowing there was going to be a confrontation, and,
           therefore, accomplice liability, [Appellant] should be found
           guilty anyway whether or not he had a gun.

              You know, lastly, with [Mr.] Markle, he pled guilty to
           recklessly endangering. [The PCRA court] referenced [Mr.
           Markle’s] guilty plea.     I had a concern too that [the
           prosecutor] would confront [Mr. Markle], well, if this is all
           self-defense, then why did you plead to anything; so, you
           know, I made the decision based upon those factors that I
           just wasn’t going to call Brad Markle.

N.T., 6/20/15, at 44-47.

      Upon cross-examination, the following exchange occurred between the

assistant district attorney and trial counsel:

           Q. Just to reiterate some things. Is it accurate to say that
           the reason you didn’t call Bradley Markle is he would have
           undercut your case as you were going to be arguing?

           A. Yeah, I guess that’s one way to put it.

Id. at 49.

      The PCRA court credited the testimony of trial counsel over the

testimony and other allegations made by Appellant at the evidentiary

hearing.     We cannot disturb this determination.      See Commonwealth v.

Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility

determinations are solely within the province of the PCRA court). Moreover,




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given the PCRA court’s credibility determinations, Appellant cannot establish

that the absence of Mr. Markle’s testimony prejudiced him. Hall, supra.

      In sum, we have reviewed the record, including the notes of testimony

from the PCRA hearing, and agree with PCRA counsel’s determination that

Appellant’s ineffectiveness claim is without merit. We therefore affirm the

PCRA court’s denial of Appellant’s petition for post-conviction relief, and

grant counsel’s petition to withdraw.

      Order affirmed. Petition to Withdraw granted.

      Judge Lazarus joins the Memorandum.

      Judge Bowes files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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