J-S18025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANDRE WARE

                            Appellant                 No. 3372 EDA 2016


               Appeal from the PCRA Order dated October 3, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002350-2012
                                          CP-51-CR-0012132-2011

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                        FILED NOVEMBER 02, 2017

        Appellant, Andre Ware, appeals pro se from the order dismissing his

first petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546.          Appellant raises numerous claims of PCRA counsel’s

ineffectiveness. We affirm.

        In a prior memorandum addressing Appellant’s direct appeal, we

summarized the factual background of this case:

        On April 20, 2011, Rahfee Yates (“Yates”), Shalik Fogle
        (“Fogle”), and Bakari Diaoume (“Diaoume”) were sitting outside
        of a barbershop located at 1839 South Sixth Street in
        Philadelphia. Yates and Fogle knew one another, but neither
        was familiar with Diaoume. At around 1:45 p.m., two men
        approached the barbershop wearing [black] hoods and holding
        guns and began shooting Yates several times at close range. The
        two men also hit Diaoume with their gunfire. Diaoume was close
        enough to the two men to touch them. While Diaoume survived

____________________________________________
*   Former Justice specially assigned to the Superior Court.
J-S18025-17


     his injuries, Yates died from the injuries that he sustained from
     his gunshot wounds.

           Fogle escaped the incident unharmed. When police
     questioned him immediately after the shooting, he stated that he
     was unable to identify the two individuals who shot Yates and
     Diaoume. However, a few weeks later on April 27, 2011, police
     arrested Fogle on unrelated drug charges. At that time, Fogle
     volunteered information about Yates’s murder, identifying
     [Appellant] as one of the individuals who shot Yates and
     Diaoume. On April 28, 2011, Diaoume identified [Appellant] in a
     photo array.

Commonwealth v. Ware, 102 A.2d 524 (Pa. Super.) (unpublished),

appeal denied, 104 A.3d 4 (Pa. 2014).       Appellant was charged with the

murder of Yates.

     The PCRA court explained how Appellant was apprehended:

     [On June 15, 2011,] Officer Ortiz spotted [Appellant in the 1900
     block of Hemberger Street in North Philadelphia] in a vehicle that
     matched flash information from a shooting. [“The flash
     information for the shooting was unrelated to the Yates murder.”
     PCRA Ct. Op., 10/17/16, at 5 n.5.] As Officer Ortiz and his
     partner approached, [Appellant] and a second male exited the
     vehicle. After [Appellant] exited the vehicle, Officer Ortiz saw in
     plain view, from just fifteen to twenty feet, [Appellant] pull two
     firearms from his waistband and toss them over his head into a
     yard passageway of a home.            Officer Ortiz immediately
     recognized the tossed objects as firearms and heard their
     metallic sound when they hit the concrete. It was only after
     [Appellant] threw the weapons that the officers attempted to
     secure him. [Appellant] then fought with officers and attempted
     to flee. Once [Appellant] was secured, the officers retrieved the
     firearms from the yard. Nothing in the record establishes that
     [Appellant] had a reasonable expectation of privacy in the yard
     where the officers found the firearms.

PCRA Ct. Op., 10/17/16, at 5-6 (citations omitted). Both firearms were nine

millimeter handguns. Trial Ct. Op., 6/20/13, at 5. Neither of the recovered



                                    -2-
J-S18025-17


guns matched the ballistics evidence from the guns used in the Yates

murder.

     On February 12, 2013, the Commonwealth moved to consolidate

Appellant’s murder case with the firearms charges resulting from Appellant’s

June 15, 2011 arrest. The Commonwealth reasoned that consolidation was

appropriate because the June 15, 2011 events established, among other

things, Appellant’s possession of handguns, that he “had the means to

commit” murder, and Appellant’s flight from South Philadelphia, where the

murder occurred.   Commonwealth’s Mot. to Consolidate, 2/12/13, at 2, 6.

At the hearing on the motion, the Commonwealth reiterated this position

and emphasized that the record would establish Appellant’s flight. The court

granted the Commonwealth’s motion over Appellant’s objection.           N.T.,

2/19/13, at 14.

     Appellant was tried before the Honorable Barbara A. McDermott and a

jury. Among the witnesses at trial was Shandel Gregory, whose testimony

was summarized by Judge McDermott in the PCRA proceeding as follows:

     On the day of the murder, [Appellant,] whom Gregory knew as
     Onnie, and another male, whom she knew as Meatball, banged
     on Gregory’s door and entered her apartment, which was located
     near the subject murder. [Appellant] had a dark hoodie in his
     hand. Noticing that it was a nice spring day and that the two
     males were sweating profusely, Gregory asked if they were
     okay. The two males replied that they were “cool.” After
     spending a few minutes in one of the back bedrooms, the two
     males returned to the front room, instructed Gregory to close
     and lock the door, and left the apartment.

        Five minutes later, the police knocked on Gregory’s door, and
     asked if she saw two males run into the apartment building.

                                   -3-
J-S18025-17


      Gregory said “no,” and shut the door. Later that day, the police
      returned and took Gregory to the homicide unit for questioning.
      She repeated that she did not see anything. Six days after the
      murder, on April 26, [2011,] police again asked Gregory to come
      to the homicide unit for questioning. This time, she informed
      detectives that [Appellant] and Meatball, whom she identified
      both from photographs, ran into her apartment on the day of the
      murder. At trial, Gregory stated that she originally lied to police
      because she was nervous and scared.

PCRA Ct. Op., 10/17/16, at 6-7.

      Following Gregory’s direct examination, Appellant’s counsel requested

a sidebar and asked that the Commonwealth turn over any notes taken by

the detectives at their interview of Gregory. The Commonwealth responded

that there were no notes, and Appellant’s counsel began cross-examining

Gregory.    Gregory testified that she saw one of the detectives write

something down but did not see what he wrote. Appellant’s counsel did not

renew his request for notes. Appellant’s counsel impeached Gregory on her

inconsistent statements to the police and emphasized that she lied twice.

See, e.g., N.T. Trial, 3/21/13, at 57, 59, 64.

      At trial, the court conducted a colloquy of Appellant.        The court

reminded Appellant that he was under oath and asked him whether he

wanted to present any witnesses “other than character witnesses [and] the

detective from the lineup?”. N.T., 3/21/13, at 81. Appellant responded that

he did not want to call any other witnesses:

      The court: So in other words, there’s no witnesses that [your
      counsel is] not going to call that you wanted him to call. Is that
      correct?

      [Appellant]: Yes.

                                     -4-
J-S18025-17



N.T., 3/21/13, at 82.

      The court then questioned Appellant extensively about his right to

testify:

      The court: Okay. So the last decision and the most important
      decision, I think, or one of the more important decisions you
      have to make is whether or not you are going to testify. And it’s
      my understanding that you and [your counsel] have had an
      opportunity to discuss that. Is that correct?

      [Appellant]: Yes.

      The court: Now, you understand that only you can make the
      decision as to whether or not you wish to testify in this case. Do
      you understand that?

      [Appellant]: Yes.

      The court: [Your counsel] can give you advice but he can’t make
      the decision. Ultimately it’s your decision. Do you understand
      that?

      [Appellant]: Yes.

      The court: And lastly, has anyone forced you to get you to give
      up your right to testify?

      [Appellant]: No, ma’am.

      The court: Has anyone promised you anything? Like, did [your
      counsel] say, oh, if you don’t testify you’re getting a not guilty?

      [Appellant]: No, ma’am.

      The court: Okay. And so no one has forced you, no one has
      promised you, no one has threatened you not to testify, have
      they?

      [Appellant]: No, ma’am.

      The court: So the bottom line is this. Are you doing it of your
      own free will?

                                     -5-
J-S18025-17



        [Appellant]: Yes.

        The court: And are you satisfied that you have all the
        information that you need to make your decision?

        [Appellant]: Yes.

N.T., 3/21/13, at 82-84.

        The court instructed the jury regarding the June 15, 2011 arrest and

the April 20, 2011 murder:

              You must keep the evidence of the two crimes separate
        during your deliberations except for one piece of information,
        and that is you may consider the evidence of the second crime
        charged, that is, the illegal guns that the defendant is accused of
        possessing on June fifteenth of 2011 during your deliberations as
        to the murder charge, if you see fit and only if you see fit, if you
        believe that it tends to prove that the defendant had access to
        similar weapons when the crime was committed, the alleged
        murder on April twentieth of 2011.

N.T., 3/21/13, at 200. Appellant’s counsel did not object to this instruction.

        On March 22, 2013, the jury found Appellant guilty of first-degree

murder, conspiracy, possessing instruments of crime, recklessly endangering

another person, carrying a firearm without a license, and resisting arrest.1

The trial court sentenced Appellant to a life imprisonment without parole.

        Following his unsuccessful direct appeal, Appellant filed a pro se PCRA

petition on July 17, 2015, and then filed a pro se motion for leave to file an

amended PCRA petition and an amended PCRA petition on August 13, 2015.2

____________________________________________
1   18 Pa.C.S. §§ 2502(a), 903,907, 2705, 6106, and 5104, respectively.
2The PCRA court docketed the motion and amendment on September 14,
2015.

                                           -6-
J-S18025-17


On April 28, 2016, Appellant filed another pro se motion for leave to file an

amended PCRA petition.

       On May 5, 2016, PCRA counsel entered his appearance. On July 26,

2016, PCRA counsel filed a Turner/Finley letter.3 On August 25, 2016, the

PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the PCRA

petition.   On September 7, 2016, Appellant filed a pro se response to the

Rule 907 notice, asserting that the Turner/Finley letter was deficient for

not raising and arguing various claims of trial counsel’s ineffectiveness,

which he then listed.

       On   September       29,   2016,        PCRA   counsel   filed    a   supplemental

Turner/Finley letter addressing the claims raised in Appellant’s pro se

response to the Rule 907 notice.               Appellant did not file a supplemental

response     to   the   Rule   907    notice     challenging the        adequacy of   the

supplemental Turner/Finley letter.              On October 3, 2016, the PCRA court

dismissed Appellant’s PCRA petition, and Appellant timely appealed on

October 20, 2016.4


____________________________________________
3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

4  Although the docket reflects entry of an order dismissing Appellant’s PCRA
petition on October 3, 2016, the record does not include the actual order.
Appellant, however, filed a notice of appeal on October 20, 2016, stating
that the appeal was from the October 3, 2016 order. The PCRA court, out of
an abundance of caution, again dismissed the Appellant’s petition on
October 17, 2016, and stated Appellant had thirty days from October 17 to
file his notice of appeal. Trial Ct. Op., 10/17/16, at 9 n.7. Appellant did not
file a new notice of appeal, but, as the October 17, 2016 order was intended
(Footnote Continued Next Page)
                                           -7-
J-S18025-17


      Appellant raises the following eight issues, which we repeat verbatim

from his brief:

      1. Did the PCRA court violate Appellant’s rights to effective PCRA
      counsel under Pa.R.Crim.P. 904(F)(2) when counsel failed to
      argue, amend, develop and preserve on initial collateral review
      petitioner’s dire[c]t appellant counsel was ineffective under the
      14th Amendment of the U.S. Constitution by failing to raise trial
      court violated petitioner’s 6th and 14th Amendment of the U.S.
      Constitution when trial court committed abuse of discretion.

      2. Did the PCRA court violate Appellant’s rights to effective PCRA
      counsel under Pa.R.Crim.P. 904(F)(2) when counsel failed to
      argue trial counsel was ineffective under the 6th and 14th
      Amendment of the U.S. Constitution for failing to investigate,
      interview and subpoena credible defense witnesses to testify
      during petitioner’s trial.

      3. Did the PCRA court violate Appellant’s rights to effective PCRA
      counsel under Pa.R.Crim.P. 904(F)(2) for failing to argue
      petitioner was denied his 6th and 14th Amendment of the U.S.
      Constitution when trial counsel failed to move to have
      eyewitness identification excluded was unreasonable and fell
      below the objective standard of reasonableness subjecting
      petitioner to be prejudiced and denied a fair trial.

      4. Did the PCRA court violate Appellant’s rights to effective PCRA
      counsel under Pa.R.Crim.P. 904(F)(2) for failing to argue
      petitioner was denied his 6th and 14th Amendment of the U.S.
      Constitution when trial counsel failed to challenge petitioner’s
      June 15, 2011 arrest and the suppression of seized weapons.

      5. Did the PCRA court violate appellant’s rights to effective PCRA
      counsel under Pa.R.Crim.P. 904(F)(2) when counsel failed to
      argue petitioner was denied his 6th and 14th Amendment of the
      U.S. Constitution when trial counsel failed to challenge or object

(Footnote Continued) _______________________
merely to correct any error regarding the October 3, 2016 dismissal, we
treat the Appellant’s appeal from the October 3, 2016 dismissal as also being
from the October 17, 2016 order. See Pa.R.A.P. 905(a)(5) (“A notice of
appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
date thereof”).

                                          -8-
J-S18025-17


       to the court’s and/or government application to consolidate
       petitioner’s June 15, 2011 and April 20, 2011, case(s) for trial.

       6. Did the PCRA court violate Appellant’s rights to effective PCRA
       counsel under Pa.R.Crim.P. 904(F)(2) when counsel failed to
       argue petitioner was denied his 6th and 14th Amendment of the
       U.S. Constitution when trial counsel elicited from government
       witness Shandell Gregory that she observed homicide detectives
       taking notes during her April 20, 2011 investigated interview and
       did not renew his Brady[5] material request of the withheld
       notes, caused petitioner prejudice and denied him his due
       process rights that Brady protects.

       7. Did the PCRA court violate Appellant’s rights to effective PCRA
       counsel under Pa.R.Crim.P. 904(F)(2) for failing to argue
       petitioner was denied his 6th and 14th Amendment of the U.S.
       Constitution when trial counsel failed to investigate nine
       millimeter connection and weather temperature defense(s) for
       trial.

       8. Did the PCRA court violate Appellant’s rights to effective PCRA
       counsel under Pa.R.Crim.P. 904(F)(2) when counsel failed to
       argue petitioner was denied his 6th and 14th Amendment of the
       U.S. Constitution when trial counsel gave [erroneous] advi[c]e
       not to testify.

Appellant’s Brief at 5-6.6


____________________________________________
5 In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme
Court held that a prosecutor’s withholding of information or evidence that is
favorable to a criminal defendant’s case violates the defendant’s due-process
rights and that the prosecution has a duty to disclose such information or
evidence. Id. at 86–89.

6 The Commonwealth contends that Appellant waived his issues because
they all relate to ineffectiveness of Appellant’s PCRA counsel, and Appellant
preserved only claims of his trial counsel’s ineffectiveness in his response
to the Rule 907 notice. We disagree. Appellant’s response to the Rule 907
notice explicitly challenged the sufficiency of PCRA counsel’s advocacy by
contending that PCRA counsel’s Turner/Finley letter was deficient for failing
to raise and argue trial counsel’s ineffectiveness. Appellant’s Resp. to Order
Notice of Intent to Dismiss, 9/7/16, at 1. Thus, Appellant has not waived his
claims regarding PCRA counsel.

                                           -9-
J-S18025-17


     Our standard of review of a PCRA court’s denial of a PCRA petition “is

limited to examining whether the PCRA court’s determination is supported

by” the record evidence and free of legal error. Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa. Super.) (en banc), appeal denied, 839 A.2d 352

(Pa. 2003).

     All of Appellant’s claims are based on ineffectiveness of counsel. We

address such claims under a well-settled framework:

        Counsel is presumed to have been effective. To overcome
        this presumption, a PCRA petitioner must plead and prove
        that: (1) the underlying legal claim is of arguable merit;
        (2) counsel’s action or inaction lacked any objectively
        reasonable basis designed to effectuate his client’s
        interest; and (3) prejudice, to the effect that there was a
        reasonable probability of a different outcome if not for
        counsel’s error.

     If a petitioner fails to prove any of these three prongs, his claim
     fails.

Commonwealth v. Grove, ___ A.3d ___, ___, 2017 WL 3763408, *7 (Pa.

Super. 2017) (quotation marks, brackets, and citations omitted).

                Claims of PCRA Counsel’s Ineffectiveness
                               (Issue 1)

     Throughout his brief, Appellant repeats multiple claims of ineffective

assistance by his PCRA counsel due to a failure to raise arguments that

Appellant believes are meritorious. Appellant collects these claims under his

first issue, and then addresses each of them individually in his remaining

eight issues.   Rather than discussing these issues twice, we defer our




                                   - 10 -
J-S18025-17


discussion of each claim to the separate issue of Appellant that focuses on

that claim.

      In addition to these specific substantive claims, Appellant contends

that PCRA counsel’s supplemental Turner/Finley letter was inadequate

because it failed to include some of Appellant’s specific issues.         See

Appellant’s Brief at 11-13.   We note that Appellant failed to challenge the

adequacy of the letter before the PCRA court and therefore arguably has

waived this issue. See generally Commonwealth v. Pitts, 981 A.2d 875,

879 n.3 (Pa. 2009). However, we acknowledge that Appellant may not have

received the supplemental September 29, 2016 letter prior to the PCRA

court’s October 3, 2016 dismissal of his PCRA petition. We therefore do not

find waiver.

      Assuming that Appellant lacked an opportunity to challenge the

adequacy of counsel’s supplemental letter, he is still not entitled to relief.

For the reasons set forth below with respect to the separate claims,

Appellant has not established that if it were not for counsel’s alleged errors,

there would be a reasonable probability of a different outcome at his trial.

See Grove, 2017 WL 3763408 at *7.

                     Failure to Interview Witnesses
                                 (Issue 2)

      Appellant argues a layered claim of ineffectiveness regarding trial

counsel’s failure to subpoena and call Eric Wallace as a witness. Appellant’s

Brief at 17. According to Appellant, Wallace would have exculpated him by


                                    - 11 -
J-S18025-17


identifying a since-deceased third party as the killer. Id.; see R.R. at 24a-

26a (Wallace’s police statement).

      In the first Turner/Finley letter, PCRA counsel opined that trial

counsel had a reasonable basis for not calling Wallace as a witness, because

Wallace     also   identified   Appellant    as   wearing     “clothes   matching   the

description of the shooters” (black hoodie and long pants) on the day of the

shooting.    Turner/Finley Letter, 7/26/16, at 2.           Counsel also noted that

during his trial, Appellant stated in response to questioning by the trial court

that he did not want to call any other witnesses other than those called by

his trial counsel. Id.; see N.T., 3/21/13, at 81-82.

      The PCRA court agreed with PCRA counsel’s assessment, construing

Wallace’s statement as inculpatory and emphasizing that Appellant stated

under oath at trial that he did not wish for counsel to call any additional

witnesses. After careful review, we agree with the PCRA court. Counsel had

a reasonable strategic basis for not calling Wallace as a witness, given that

his statement was potentially inculpatory. Furthermore, notwithstanding the

allegedly    exculpatory    material   within     Wallace’s     statement,   Appellant

affirmatively agreed that he did not want to call any additional witnesses.

          Failure to Suppress Fogle’s Photographic Identification
                                (Issue 3)

      Appellant asserts that trial counsel was ineffective by not moving to

suppress Fogle’s photo identification of him because it was the result of a

tainted and suggestive process.             Appellant’s Brief at 24.       In support,


                                        - 12 -
J-S18025-17


Appellant appears to argue that the police improperly influenced Fogle to

pick Appellant’s photo from the array because Appellant and Fogle have

known each other since childhood. Id.

      PCRA counsel explained that this issue lacked merit because Fogle

stated that he identified Appellant because he was the shooter, and not

because of any prior relationship.      Turner/Finley Letter, 7/26/16, at 2,

citing N.T., 3/20/13, at 31-33.       Further, even if the array was tainted,

counsel explained that Fogle would have had an independent basis for

recognizing Appellant: their prior relationship. Id. The PCRA court agreed

with counsel’s analysis. PCRA Ct. Op. at 6. We too agree that Appellant has

not established that this issue has arguable merit. Even if the identification

process   was   tainted,   Fogle’s   in-court   identification,   based   upon   his

longstanding familiarity with Appellant, would have sufficiently purged the

process of any alleged taint. See Commonwealth v. Small, 741 A.2d 666,

679 (Pa. 1999).

    Failure to Challenge Appellant’s June 15, 2011 Arrest and To
      Suppress the Firearms Seized as a Result of That Arrest
                             (Issue 4)

      Appellant next asserts that trial counsel was ineffective for not moving

to suppress evidence of his June 15, 2011 arrest and the firearms seized in

that arrest. He contends there were no exigent circumstances or probable

cause for his arrest. Appellant also appears to argue that because he was

on private property, the police had no basis to search or seize him.



                                      - 13 -
J-S18025-17


Appellant’s Brief at 31.   He alleges that the police’s conduct caused him to

flee. Id. at 33.

      PCRA counsel concluded that the police, after seeing Appellant discard

two firearms in plain view, were justified in pursuing and arresting him.

Turner/Finley Letter, 7/26/16, at 2.      The PCRA court agreed, recounting

that as the police approached Appellant, they “saw in plain view, from just

fifteen to twenty feet, [Appellant] pull two firearms from his waistband and

toss them over his head into a yard passageway of a home.” PCRA Ct. Op.

at 5. The court noted that one of the officers “immediately recognized the

tossed objects as firearms and heard their metallic sound when they hit the

concrete.” Id. at 5-6. The police did not attempt to secure Appellant until

he threw the weapons. Once they arrested him, they retrieved the firearms

from the yard. Id. at 6. We agree with the PCRA court that, on these facts,

there was probable cause for the arrest and no ground to suppress evidence

of the arrest or the firearms.    Appellant’s contention that the arrest was

invalid because he was on private property is frivolous; there is no evidence

that Appellant had a reasonable expectation of privacy in the yard where he

threw the guns.    We thus agree with the PCRA court that this issue lacks

merit.

                                 Consolidation
                                   (Issue 5)

      Appellant contends that PCRA counsel was ineffective for not arguing

that trial counsel was ineffective for not objecting to the Commonwealth’s


                                     - 14 -
J-S18025-17


motion for consolidation of the firearms charges with the rest of his case.

Appellant’s Brief at 14. He similarly contends trial counsel’s advocacy was

ineffective and that counsel was unprepared to oppose consolidation. Id. at

40. Appellant contends that because the two cases were consolidated, he

was prejudiced and denied his right to a fair trial. Id. at 44.7

       PCRA counsel opined that Appellant’s issue lacked merit because trial

counsel did object to consolidation. Further, PCRA counsel asserted that the

Commonwealth was entitled to consolidation because Appellant’s June 15,

2011 arrest established his access to firearms and a motive to flee.

Turner/Finley Letter, 9/29/16, at 2.           The PCRA court concluded that this

issue lacked merit because trial counsel did object to the consolidation.

PCRA Ct. Op. at 5.

       We agree that Appellant is not entitled to relief. Appellant’s contention

that trial counsel did not raise this issue is belied by the record. See N.T.,

2/19/13, at 7.      In addition, PCRA counsel raised this issue and explained

why it lacked merit.          Turner/Finley Letter, 9/29/16, at 2.       Because

Appellant’s trial counsel objected, PCRA counsel cannot be ineffective for

failing to raise a meritless issue. Grove, 2017 WL 375408 at *7.



____________________________________________
7  Appellant also raises a derivative argument that trial counsel was
ineffective for failing to object to jury instructions regarding his possession,
in June 2011, of a firearm of the identical caliber as the one used to kill
Yates in April 2011. Appellant’s Brief at 44. This argument fails because we
conclude that trial counsel was not ineffective in objecting to the
consolidation of the charges that led to the jury instruction.

                                          - 15 -
J-S18025-17


                              Brady Request
                                (Issue 6)

     Appellant argues that PCRA counsel was ineffective for failing to argue

that trial counsel was ineffective by not renewing his Brady request for

notes from the police interview of Gregory.    Appellant’s Brief at 14.   The

PCRA court responded that Appellant failed to establish that such notes

existed. PCRA Ct. Op. at 7. The court also pointed out that Appellant’s trial

counsel impeached Gregory with her inconsistent statements.      Id. at 7-8.

PCRA counsel addressed this issue and explained why it is meritless.

Turner/Finley Letter, 9/29/16, at 2.

     The Commonwealth has denied that any notes of the Gregory

interview existed.   Even if such notes did exist, Appellant has failed to

establish that anything in the notes would be exculpatory.             Under

Commonwealth v. Treiber, 121 A.3d 435, 460-61 (Pa. 2015), one

requirement to establish a Brady violation is a showing that “the evidence

was either exculpatory or impeachment evidence favorable to” the party

asserting the violation. In the absence of such a showing, this issue lacks

merit.

    Failure To Raise Similar Firearms and Weather Report Issues
                               (Issue 7)

     According to Appellant, 85% of the shootings in his neighborhood

involve use of nine-millimeter handguns. Appellant’s Brief at 14; R.R. at 17.

Appellant posits that trial counsel should have introduced evidence of these

shootings so that the jury could decide whether his access to nine-millimeter

                                   - 16 -
J-S18025-17


guns was atypical or unique. R.R. at 17-18. He contends that evidence that

he was arrested with a similar nine-millimeter gun was prejudicial and

violated his right to a fair trial. Id. at 18. He asserts that his counsel was

ineffective for not making this argument.

      Appellant also asserts that the weather on the day of the shooting was

65 degrees and more than 50% humidity, and therefore he was wearing a

t-shirt that day. R.R. at 18a. Appellant contends that this fact supports his

assertion that he was not wearing a dark hoodie that day. See id. Again,

Appellant asserts that his counsel was ineffective for not making this

argument.

      The PCRA court concluded that evidence of similar shootings involving

a nine-millimeter gun was irrelevant under Pa.R.E. 403. PCRA Ct. Op. at 8.

Furthermore, the weather did not prevent people from wearing hoodies. Id.

Appellant, the court notes, could have worn a hoodie “in spite of the

weather” to conceal his identity. Id.

      PCRA counsel addressed both of these issues in his Turner/Finley

letter and explained why they lacked merit. Turner/Finley Letter, 9/29/16,

at 2 (opining that evidence of other firearm crimes in the area was either not

relevant or, even if relevant, lacked probative value; and that Appellant

cannot show that his case would have had a different outcome had the

weather report been introduced). We similarly conclude that even if PCRA

counsel erred in his advocacy of these claims, Appellant has not established



                                    - 17 -
J-S18025-17


a reasonable probability of a different outcome, particularly given the other

inculpatory evidence set forth above. See Grove, 2017 WL 3763408 at *7.

                                 Right to Testify
                                    (Issue 8)

        Appellant asserts that trial counsel was ineffective because he advised

him to not testify. He claims that counsel erred by informing him that his

prior criminal record could be used to impeach his credibility.        Appellant’s

Brief at 65. Appellant contends that because he was acquitted in his prior

criminal cases, counsel’s advice was erroneous. He similarly maintains that

PCRA counsel was ineffective for failing to adequately investigate and argue

this claim of trial counsel’s ineffectiveness.

        PCRA counsel opined that this issue was meritless because Appellant

was questioned extensively by the court at trial about whether he wanted to

testify, and Appellant clearly stated that he did not wish to do so.

Turner/Finley Letter, 9/29/16, at 2. The PCRA court agreed. PCRA Ct. Op.

at 9.

        This Court has explained:

        The decision of whether or not to testify on one’s own behalf is
        ultimately to be made by the defendant after full consultation
        with counsel. In order to sustain a claim that counsel was
        ineffective for failing to advise the appellant of his rights in this
        regard, the appellant must demonstrate either that counsel
        interfered with his right to testify, or that counsel gave specific
        advice so unreasonable as to vitiate a knowing and intelligent
        decision to testify on his own behalf.

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa. Super. 2013) (citation

omitted). “[W]here a defendant voluntarily waives his right to testify after a

                                       - 18 -
J-S18025-17


colloquy, he generally cannot argue that trial counsel was ineffective in

failing to call him to the stand.” Commonwealth v. Rigg, 84 A.3d 1080,

1086 (Pa. Super. 2014) (citation omitted).

      Here, we agree with PCRA counsel and the PCRA court that Appellant

failed to demonstrate a basis for finding that PCRA or trial counsel was

ineffective relative to Appellant’s decision not to testify.   Accordingly, this

eighth and final issue lacks merit.

      In sum, upon careful review of the parties’ briefs, the record, and

pertinent legal authority, we affirm the order of the PCRA court dismissing

Appellant’s petition seeking PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2017




                                      - 19 -
