J-S79038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    PHILIP HUMMEL                              :
                                               :
                      Appellant                :         No. 1742 EDA 2016

                   Appeal from the PCRA Order May 31, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011100-2008


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED DECEMBER 19, 2017

        Appellant, Philip Hummel,1 appeals from the order entered in the

Philadelphia Court of Common Pleas, which denied his first petition brought

pursuant to the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§

9541-9546. We affirm.

        In its opinion, the PCRA court set forth the relevant facts and

procedural history of this case.         Therefore, we have no reason to restate

them.    We add that during Appellant’s direct appeal, our Supreme Court

denied    petition    for   allowance     of   appeal    on   December   31,   2012.

Commonwealth v. Hummel, 619 Pa. 700, 63 A.3d 1244 (2012).


____________________________________________


1Appellant’s first name is spelled variously throughout the certified record as
both “Philip” and “Phillip.”
J-S79038-17


Appellant timely filed a notice of appeal on June 9, 2016, from the denial of

PCRA relief. On August 29, 2016, the PCRA court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and Appellant timely complied on September 9, 2016.

      Appellant raises the following issues for our review:

         WHETHER THE COURT ERRED IN DENYING [APPELLANT’S]
         PCRA PETITION WITHOUT AN EVIDENTIARY HEARING ON
         THE ISSUES RAISED IN THE AMENDED PCRA PETITION
         REGARDING [TRIAL] COUNSEL’S INEFFECTIVENESS.

         WHETHER THE COURT ERRED IN NOT GRANTING RELIEF
         ON THE PCRA PETITION ALLEGING COUNSEL WAS
         INEFFECTIVE.

(Appellant’s Brief at 8).

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

applicable law, and the well-reasoned opinion of the Honorable Sierra

Thomas Street, we conclude Appellant’s issues merit no relief.         The PCRA

court opinion comprehensively discusses and properly disposes of the

questions presented. (See PCRA Court Opinion, filed May 9, 2017, at 11-

18) (finding: (1) review of record reveals none of Appellant’s PCRA claims

entitled him to relief; evidentiary hearing served no further purpose; (2)

regarding Appellant’s claim that trial counsel was ineffective for failing to file

post-sentence motion challenging weight of evidence, evidence admitted at

trial firmly established Appellant’s guilt; Victim provided detailed testimony

that Appellant was actively involved in shooting that led to Victim’s

hospitalization; moments before shooting, Victim observed Appellant and

                                      -2-
J-S79038-17


Co-defendant (shooter) ten feet away on sidewalk; Appellant said Victim’s

name aloud before shooting occurred, and Victim identified Appellant due to

his “sad, unique voice”; immediately after shooting, Victim told Ms. Ayers

(eyewitness): “[Appellant] shot me. As a matter of fact, he didn’t do it. He

got somebody else to do it”; police report states that Victim told police

“possible known doer goes by Phil”; Victim also gave Appellant’s name to

police in ambulance on way to hospital; on day after shooting, Victim

positively   identified   Appellant   in   photo   array;   Ms.   Ayers’   testimony

corroborated Victim’s physical descriptions of Appellant and Co-defendant,

along with sequence of events; forensic evidence recovered at scene

supported testimony of Victim and Ms. Ayers about events of shooting;

Appellant’s face was partially obscured during shooting, but Victim testified

that he was able to identify Appellant based on his unique voice and their

prior interactions; Ms. Ayers’ inability to see Appellant’s face during shooting

does not upset Victim’s positive identification of Appellant; rather, Ms. Ayers’

physical description of Appellant corroborated Victim’s description; Victim’s

testimony at preliminary hearing about uncertainty of Co-defendant’s

identity stemmed from Victim’s disbelief that his friend (Co-defendant) could

have been involved, as well as intimidation Victim suffered at school

following shooting; Victim consistently identified Appellant as non-shooter

from night of incident through trial; thus, court would have denied any post-

sentence motion raising weight of evidence claim and counsel is not


                                           -3-
J-S79038-17


ineffective for failing to file one on that ground; regarding Appellant’s claim

that trial counsel was ineffective for failing to file post-sentence motion

challenging discretionary aspects of sentencing, court imposed sentence

within guideline range and considered Appellant’s confinement as consistent

with protection of public, gravity of offense as it relates to impact on life of

Victim, and Appellant’s rehabilitative needs; court noted very serious nature

of offense and that Appellant abandoned his house arrest prior to trial;

Victim suffered serious injuries as result of Appellant’s crimes; further, due

to Appellant’s abandonment of house arrest and failure to appear at trial,

Appellant did not request counsel to file post-sentence motion; Appellant’s

claim of ineffective assistance of trial counsel for failure to file post-sentence

motion to reconsider sentence fails; regarding Appellant’s claim that

appellate counsel was ineffective for failing to raise sufficiency of evidence

challenge to Appellant’s firearm conviction, sufficient evidence demonstrated

Appellant’s intent to promote or facilitate Co-defendant’s unlicensed carrying

of concealed firearm; Co-defendant’s non-licensure was plainly evident

because he was less than twenty-one years old at time of offense, which is

minimum age to apply for license to carry firearms in Pennsylvania;

Appellant’s actions and statements before shooting demonstrated his intent

to facilitate crime; Appellant and Co-defendant together approached Victim,

and Appellant said Victim’s name aloud to signal Co-defendant to begin

shooting; jury had sufficient evidence to convict Appellant of firearms


                                      -4-
J-S79038-17


charge; thus, Appellant’s claim of appellate counsel’s ineffectiveness merits

no relief).2 Accordingly, we affirm based on the PCRA court opinion.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




____________________________________________


2  In his appellate brief, Appellant argues that a break during Victim’s
testimony at trial to allow him to take medication clouded his judgment and
cast doubt on his testimony. Appellant claims this issue affects the weight of
the evidence. Appellant’s Rule 1925(b) statement, however, did not specify
this claim; and the PCRA court did not address this particular argument in its
opinion.    Therefore, Appellant’s “medication” issue is waived.         See
Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005) (holding
any issue not raised in Rule 1925(b) statement is deemed waived for
appellate review); Commonwealth v. Reeves, 907 A.2d 1 (Pa.Super.
2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007) (stating Rule
1925(b) statement that is too vague for trial court to identify and address
issue Appellant wishes to raise on appeal can result in waiver).



                                           -5-
                                                                                                    Circulated 12/07/2017 02:47 PM


                                                                                                                    FILED
               IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY MAY 112017
                       FIRST JUDICIAL DISTRICT OF PENNSYL v ANIA Office of Judicial Records
                               CRIMINAL TRIAL DIVISION            Appeals/Post Trial

    COMMONWEALTH OF PENNSYLVANIA                                      CP�Sl-CR-0011100-2008

                                v.
                                                                         SUPERIOR COURT
                    PHILIP .HUMMEL                                       NO. 1742 EDA 2016


                                                OPINION

    THOMAS STREET; J.                                                                                     May 9,2017

    I.      OVERVIEW AND PROCEDURAL HISTORY

             The Appellant, Philip Hummel, filed a petition for relief pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq. In his petition, the Appellant raised the issues of

ineffective assistance of counsel. This court dismissed his petition as without merit and this appeal

followed. On July 8, 2008, the Appellant was arrested and charged with attempted first degree

murder, 1 aggravated assault/ criminal conspiracy.' and possessing a firearm without a license.4

On May 25, 2010 through June 1, 2010, the Appellant was tried by a jury in abstentia and found

guilty of attempted first degree murder, criminal conspiracy, and possessing a firearm without a

license before Judge Thomas Dempsey. The Appellant was represented at trial by attorney Fred

Harrison.

            On October 8, 2010, the Appellant was sentenced to 10 to 30 years for attempted first

degree murder, a concurrent 10 to       20 years for criminal· conspiracy, and a consecutive 3 Y2 to                  7

years for possessing a firearm without a license. On November 4, 2010, Judge Dempsey modified
                                                        CP-51-CR-001110(}.2008 Comm. v. Hummel, Philip
                                                                           Opinion


1
2
3
4
     18 Pa.c.s_ § l 102(c)
     18 Pa.C.S. § 2702(a)(l)
     18 Pa.C.S. § 905
                                                                 I
                                                             Ill lllll 111111111111111
                                                                      7945664791
     I 8 Pa.C.S. § 6l06(a)(2)
the Appellant's previous sentence on the attempted first degree murder conviction to 10 to 20

years. In sum, the Appellant was sentenced to a total of 13� to 27 years of confinement.

       On November 23, 2010, the Appellant, by and through attorney Daniel A. Pallen, filed a

notice of appeal to the Superior Court of Pennsylvania. On May 31, 2011, the Appellant, by and

through attorney Elayne C. Byrn, filed a concise statement of matters complained of on appeal.

On March 28, 2012, the Superior Court denied the Appellant's appeal and the judgment of sentence

was affirmed. On January 15, 20 !5, the Appellant filed a PCRA petition. On February 2, 2015,

the Appellant, by and through attorney Peter A. Levin, filed an amended PCRA petition. On

February 8, 20lh, the Commonwealth filed a motion to dismiss the PCRA petition. On April 15,

2016, this court issued an oral notice of intent to dismiss the PCRA petition under Rule 907. On

May 31, 2016, this court granted the Commonwealth's motion to dismiss the PCRA petition as

without merit.

II.    FACTUAL HISTORY

       On May 25, 2010, a jury trial commenced against the Appellant and Jamel Kelly, both in

abstentia. (N.T. 5/25/10· p. 1). The attorney for the Appellant entered a plea of not guilty to all

charges on his client's behalf. (N.T. 5/25/10 p. 4). The attorney for Mr. Kelly also entered a plea

of not guilty on her client's behalf. (N.T. 5/25/10 p. 5).

        On direct examination, Police Officer Thomas Brown testified that he and his partner,

Officer Brosious, were dispatched to 1123 South 54th Street in response to a reported shooting on

the evening of June 13, 2008. (N.T. 5/25/lOpp. 31-32). Once at the location, they noticed several

bullet holes in the front door of the house and discovered the complainant lying face-up on the

dining room floor with visible gunshot wounds. (N.T. 5/25/10 pp. 32-33, 44). The complainant's

then-girlfriend, Wyneisha Ayers, was also present in the household but unbanned. Id. The


                                                  2
complainant described the perpetrators to Officer Brown as two black males; one wearing a dark

shirt and blue jeans and the other wearing a white shirt, blue jeans; and a white cloth over part of

his head. (N.T. 5/25/10 pp. 33-35). These descriptions were included on the 75-48 incident report

prepared by the Officer Brown. (N.T. 5/25/10 pp. 34-35, 37-38). On the very bottom of the 75-

48 it was written, "Complainant later stated possible known doer goes by Phil." (N.T. 5/25/10 p.

35).

       On cross-examination, Officer Brown testified that outside of the complainant's residence

he recognized ballistics evidence of fired cartridge casings. (N.T. 5/25/10 p. 38). He asked the

complainant, who remained alert and conscious, who shot him shortly after arriving at the scene.

(N.T. 5/25/10 pp. 39-40). Officer Brown did not receive an answer back from the complainant

before he was taken away for treatment by medics. (N.T. 5/25/10 pp. 40-41). Officer Brown

remained at the scene for a couple hours and the notation at the very bottom of the 75-48 was made

during this time. (N.T. 5/25/10 pp. 41�42).

       On direct examination, Wyneisha Ayers testified that she was present with the complainant

on the evening of the shooting. (N.T. 5/25/10 p. 52). Ms. Ayers explained that she was sitting

outside of the complainant's house when two young men walked up and one of them verbally

alerted the other of the complainant's presence. (N.T. 5/25/10 p; 53). She was then pushed into

the house by the complainant as four bullets were fired at them. (N.T. 5/25/10 p. 54). Ms. Ayers

described the two men as wearing white towels over their faces that covered some of their eyes

and the sides of their faces, but exposed their faces from below their eyebrows. (N.T. 5/25/10 pp.

55-56). Ms. Ayers described the men as wearing white Tvshirts and dark bluejeans. (N.T. 5/25/10

p. 55). She described one of the men as "real chubby and fat looking" while the other was

comparatively smaller. (N.T. 5/25/10 p. 57). The smaller man had alerted the larger man of the



                                                3
complainant's presence before the shooting and the larger man responded in a sarcastic voice, "Oh,

yeah?" (N.T. 5/25/10 p. 58). Only a few seconds passed before the larger man began shooting at

the complainant. (N.T. 5/25/10 p. 59). After having been shot, the complainant escaped into his

house and told Ms. Ayers, "Phil shot me. As a matter of fact, he didn't do it. He got somebody

else to do it." (N.T. 5/25/10 pp. 64-65).

        On cross..examination, Ms. Ayers testified that she and the complainant had been sitting

on the steps of the house for a least two (2) hours before the shooting. (N.T. 5/25/10 p. 66). At

about 9:45 p.m., she first saw the perpetrators from approximately fifteen (15) feet away at the

nearest corner from the house. (N.T. 5/25/10 pp 67-69). Approximately fifteen (15) seconds later,

the men shot at the complainant as she was pushed into the house. (N.T. 5/25/10 p. 71). She

clarified that she did not tell the police that night that the complainant said, "Phil shot me. As a

matter of fact, he didn't do it. He got somebody else to do it." (N.T. 5/25/10 pp. 75-76). On

redirect examination, Ms. Ayers testified that on the night of the shooting she told the police that

the larger man was wearing a dark shirt. (N.T. 5/25/10 pp. 77-78).

       On direct examination, .the complainant testified that he was shot on the steps of his

grandmother's house on the evening of June 13th. (N.T. 5/25/10 pp. 79-80). He stated that the two

men walked up and approached him, said his.name aloud, and then fired four shots at him. (N.T.

5/25/10 p. 81 ). The complainant knew both of the men by name and he identified the Appellant

as the non-shooter. (N. T. 5/25/10 pp. 81, 84 ). He stated that he heard four gun shots go off as he.

pushed Ms. Ayers into his grandmother's house. Id. The complainant then entered the house and

collapsed from the pain of his gunshot wounds.· (N.T. 5/25/10 p. 85). He was eventually taken to

the Children's Hospital of Philadelphia for treatment, where he remained for two and a half (2 Ya)

weeks. (N.T. 5/25/10 p. 86).



                                                 4
        The complainant testified that Detective William Farrell visited him at the hospital the next

day at approximately I p.m, and showed him a photo array that displayed eight individuals. Id.

Detective Farrell asked the complainant whether he recognized anybody that was involved in the

shooting. (N.T. 5/25/10 p. 87). The complainant identified the Appellant as the non-shooter by

circling his picture on the photo array. Id. Approximately three days later, Detective Farrell came

back to the hospital to take a statement from the complainant. (N.T. 5/25/10 p. 88). The

complainant once more identified the Appellant as the non-shooter in the incident. (N.T. 5/25/10

p. 89). Later on July l 71h, the complainant identified Mr. Kelly as the shooter to the police after

previously telling them that he did not know the shooter. (N.T. 5/25/10 pp. 88�90). The

complainant cited his disbelief that Mr. Kelly, as a longtime close friend, would have shot him

despite recognizing him since the time of the shooting. Id. The complainant reiterated this as one

reason he failed to positively identify Mr. Kelly as the shooter at the preliminary hearing on

September 4, 2008. (N.T. 5/25/10 pp. 92-94). Another reason was an instance of witness

intimidation by an associate of the Appellant that took place at the complainant's school. (N.T.

5/25/10 pp. 100-102).

       On cross-examination, the complainant testified that he initially lied about not knowing the

shooter when asked by Detective Farrell because he was in disbelief. (N.T. 5/26/10 pp. 8-9). The

disbelief and witness intimidation Jed the complainant to testify at the preliminary hearing that he

was not certain· that Mr. Kelly was the shooter. (N.T. 5/26/10 pp. 12-14). The complainant

testified that before the shooting he was on the steps outside of his grandmother's house for

approximately ten (10) to fifteen 05) minutes. (N.T. 5/26/10 p. 39). He was not aware of the

men's presence until the Appellant said the complainant's name to Mr. Kelly from about ten (10)

feet away on the sidewalk at this time. (N.T. 5/26/10 p. 42-43, 48). The complainant described



                                                 5
the Appellant as having a towel wrapped around his head, sunglasses on his face, and a blue

bandana around his mouth and nose. (N.T. 5/26/10 p. 45). The complainant testified that he was

able to immediately identify the Appellant as the non-shooter because of his "sad, unique voice."

(N.T. 5/26/10 pp. 45-46). Lighting was provided from the neighbor's light pole and light that

came from the complainant's grandmother's house. (N.T. 5/26/1 O p.47). The complainant

identified the Appellant as the non-shooter to Detective Farrell while in an ambulance on the way

to the hospital after the incident. (N.T. 5/26/10 pp. 55-56).

        On direct examination, Detective William McCroty of the Southwest Detective Division

testified that he was assigned to the Special Investigation Unit that also responded to the incident

that evening. (N.T. 5/26/10 pp. 97-98). Detective McCroty arrived at the scene at approximately

10 p.m. and logged in with the uniformed officers that were present. (N.T. 5/26/10 pp. 98, 115).

He proceeded to observe where the evidence was in reference to the crime and made a sketch of

the crime scene with his findings. (N.T. 5/26/10 pp. 99-100). As part of processing the crime

scene, Detective McGroty took several photographs. (N.T. 5/26/10 p. 100). These photographs

displayed such things as the fired cartridge casings and their location at the scene as well as damage

caused to the house. (N.T. 5/26/10 pp. 105). Detective McGroty collected the cartridge casings

and other items and properly entered them into evidence at the Philadelphia Police Department.

(N.T. 5/26/10 pp. 107-109). On cross-examination, Detective McGroty testified that the grouping

of the cartridge casings indicated that the shooter remained largely still as he fired the gun. (N.T.

5/26/10 p. 124). Detective McGroty was the first detective to arrive at the scene of the crime,

although it had been already taped off by the uniformed officers that arrived earlier. (N .T. 5/26/10

pp. 125-126). He remained at the scene of the crime for about thirty (30) minutes to one (1) hour.

(N.T. 5/26/10 p. 131).


                                                  6
        On direct examination, Police Officer Norman Defields of the Firearms Identification Unit

was entered as an expert by the court in the areas of ballistics, firearms, and tool mark examination.

(N.T. 5/26/10 pp. 137-141). Officer Defields examined the evidence collected by Detective

McCroty and concluded that the shooter utilized a semiautomatic gun with a .380 caliber. (N.T.

5/26/10 pp. 141-145). Officer Defields further concluded that all three of the fired cartridge

casings found at the scene were fired from the same semiautomatic firearm. (N.T. 5/26/10 pp.

145-147). On cross-examination, Officer Defields testified that a live cartridge can get ejected

from a semiautomatic firearm. (N.T. 5/26/10 p. 154). The insufficient amount of striations on the

cartridge left Officer Defields unable to conclude whether the live cartridge came from the same

firearm as the fired cartridges, (N.T. 5/6/10 p. 155). None of the cartridges were examined for

fingerprints. (N.T. 5/26/10 pp. 155-156). Officer Defields explained that fingerprints can only be

recovered from fired cartridges approximately four to five percent of the time due to the

microsecond the cartridge is ignited at a temperature of almost two thousand degrees. (N.T.

5/26/10 pp. 156-157).

       On direct examination, Detective William Farrell of the Southwest Detectives Division,

Specia1 Investigation Unit, testified that he had been an officer in the department for 23 years, with

12 years spent as a detective at Southwest. (N.T. 5/6/10 p. 169). On June 13, 2008, Detective

Farrell was made aware of the shooting at 1123 South 54th Street and became the assigned lead

investigator. Id. As the lead investigator, Detective Farrell acted as a coordinator and went to the

Hospital of the University of Pennsylvania in an attempt to question the complainant. (N.T. 5/6/10

p. 170). Detective Farrell had other detectives go the scene to process it, including Detective

McGroty, while others stayed back at headquarters in case any other witnesses were found. Id.

After the scene was processed, Detective Farrell was provided with a crime scene log from the


                                                  7
shooting scene. (N.T. 5{?44,�)pp. 170-171). Detective Farrell testified that on June 14, 2008, he
showed the complainant a photo array and asked him whether or not he could identify an individual

involved in the shooting. (N.T.    sjµfio p. 172-173).   The complainant pointed to the photo of the

Appellant and then circled and signed his name, including the date as well. (N.T. 5126110 p. 174).

         On direct examination, Detective Farrell testified that he first spoke to the complainant on

June   13th   between approximately 9:45 p.m. and midnight. (N.T. 5/26/10 p. 202). The descriptive

lnformation given to Detective Farrell was of two black males; one wearing a dark shirt and blue

jeans and the other wearing a white shirt, blue jeans, and a white cloth over part of his head. (N.T.

5/2hll0 pp. 202-203). Detective Farrell also had a copy of the 75-48 that included, "Complainant

later stated possible known doer. Goes by Phil." (N.T. 5/26/10 p. 204). Detective Farrell received

no corroboration for that statement from any other witness than the complainant. Id.

         In his two interviews with the complainant, Detective Farrell did not receive any
information about a white towel or other object on the heads of the Appellant and Mr. Ke11y. (N.T.

5/26/10 p. 209). No weapons were recovered at the scene of the shooting nor after the arrest of

the Appe1lant and Mr. Kelly. (N.T. 5/26/ 10 pp. 210-212 ). No neighborhood survey was conducted

after the shooting. (N.T. 5/26/10 pp. 212-213). Detective Farrell stated that he created the photo

array including the Appellant based upon the descriptive information previously provided to the

police by the complainant. (N.T. 5/26/10 p. 215). Detective Farrell explained that he did not seek

a search warrant of the Appellant's mother's residence, where the Appellant resided at the time of

the shooting, because the Appellant had become a runaway. (N.T. 5/26/10 p. 217). Detective

Farrell's stated his arrest warrant for the Appellant was premised entirely upon the positive

identification given by the complainant to the photo array. (N.T. 5/26/10 p. 221).




                                                   8
          On redirect examination, Detective Farrell testified that the statement given by Ms. Ayers

on the night of the shooting provided descriptions of the two perpetrators. (N.T. 5/26/10 p. 222).

The Appellant was described by Ms. Ayers as a skinnier black male with a light complexion, about

I 6 years old, 5 '6" to 5' 8" in height, and wearing a white T-shirt and blue jeans. Id. Mr. Kelly was

described as a heavier black male with a dark complexion, 17-18 years old, Y 6" to 5'8" in height,

facial hair, and wearing a dark shirt andjeans. (N.T. 5/26/10 p. 223). On recross-examination,

Detective Farrell testified that he did not follow-up in his investigation to the notation "they kept

calling him Phil" in regards to who comprised "they." (N.T. 5/26/10 p. 224), On farther redirect

examination, Detective Farrell testified that "they" could have indicated the complainant and the

shooter. (N.T. 5/26/10 p. 225). On further recross-examination, Detective Farrell testified that

"they" could have included any number of people. Id. On further redirect examination, Detective

Farrell testified that out ofthe hundreds of shootings he had investigated in southwest Philadelphia,

it is rare that people in the neighborhood cooperate or provide information. (N .T. 5/26/10 pp. 226�

227).

III.      ISSUES

          In the Pa.R.A.P. 1925{b) Concise Statement of Errors Complained of on Appeal, the

Appellant identifies the following issues:

       1. The court was in error in denying the Appellant's PCRA without an evidentiary
          hearing.
       2. The court was in error in denying the amended PCRA filed by PCRA counsel on
          February 2, 2015 and developed in the amended PCRA. These issues in the
          amended PCRA were the following:
                     1. Counsel was ineffective for failing to file post sentence motions that
                     the verdict was against the weight of evidence.



                                                   9
                   2. Counsel was ineffective for failing to file a motion to reconsider
                   sentence.
                   3. Appellate counsel was ineffective in representation.

IV.    STANDARD OF REVIEW

       In PCRA proceedings, an appellate court's scope of review is limited by the parameters of

the PCRA. Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009). Since most PCRA appeals involve

mixed questions of fact and law, the court must determine whether the post-conviction court's

findings were supported by the record and whether the court's order is otherwise free oflegal error.

Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011). In evaluating the decision of the lower court on

a petition for post-conviction relief, a court's scope ofreview is limited to the findings of the post-

conviction court and the evidence of record, viewed in the light most favorable to the prevailing

party at the trial level. Commonwealth v. Weatherill, 24 A.3d 435 (Pa. 2011 ). It is an appellant's

burden to persuade the reviewing court that the PCRA court erred and relief is due.

Commonwealth v. Bennett, 19 A.3d 541, 543 (Pa. Super. 2011).

       In general, in reviewing the propriety of an order granting or denying relief under the

PCRA, great deference is granted to the factual findings of the PCRA court, and these findings

will not be disturbed unless they have no support in the certified record. Commonwealth v. Green,

14 A.3d 114 (Pa. Super. 2011). Accordingly, where there is support in the record for a post-

conviction relief court's credibility determinations, the reviewing court is bound by those

determinations. Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011 ). Where the questions

presented on review of the denial or grant of post-conviction relief involve questions of law, the

standard of review is de novo. Commonwealth v. Fahy, 598 Pa. 584, 959 A.2d 312 (Pa. 2008).




                                                  10
V.      Dl&CUSSION

A.      This Court Did Not Err In Denying The Appellant's PCRA Without An Evidentiary
        Hearing

        For the first issue on appeal, the Appellant contends that this court erred in denying the

Appellant's PCRA without an evidentiary hearing. This court disagrees.

        It is well settled that PCRA petitioners are not automatically entitled to evidentiary

hearings. Commonwealth v. Walker, 36 A.3d 1, 17 (Pa. 2011). An evidentiary bearing is only

required when a petitioner presents a genuine issue of material fact. Id. A PCRA court may utilize

its discretion in determining whether any of the petitioner's claims warrant a hearing. Id. Absent

an abuse of discretion, a court's decision to deny a claim without a hearing will not be reversed.

Id. In Walker, the Pennsylvania Supreme Court affirmed the PCRA court's dismissal of an

appellant's PCRA Petition without an evidentiary hearing after finding that the appellant's claims

did not warrant any relief. Id.

        Here, a review of the evidence of record reveals none of the Appellant's claims entitled

him to relief; no further purpose would have been served by a hearing. As will be discussed further

below, the Appellant's claims that trial counsel was ineffective for failing to file post-sentence

motions that the verdict was against the weight of evidence, that trial counsel was ineffective for

failing to file a motion to reconsider sentence, and that appellate counsel was ineffective in

representation, are all without merit.

B.     Trial Counsel Was Not Ineffective For Failing To File Post-Sentence Motions That
       The Verdict Was Against The Weight Of The Evidence

       Second, the Appellant contends that trial counsel was ineffective for failing to file post-

sentence motions that the verdict was against the weight of the evidence. This court disagrees.




                                                11
        the test for determinins ineffectiveness of 0QW1sel is the same under both the United States

and Pennsylvania Constitutions. Commonwealth v. Williams, 936 A.2d 12, 19 (Pa. 2007). To

obtain relief on a claim of ineffective assistance of counsel, an appellant must show (I) that there

is merit to the underlying claim; (2) that counsel had no reasonable basis for their course of

conduct; and (3) that the ineffectiveness resulted in prejudice to the appellant. Commonwealth v.

Rega, 933 A.2q 997, 1018 (Pa. 2007). The failure to satisfy any one of the prongs requires

rejection of the claim. Commonwealth v, Pierce, 786 A.2d 203, 213 (Pa. 2001), The burden of

proving ineffectiveness rests with the appellant, Commonwealth v. Wilson, 672 A.2d 293, 298 (Pa.

1996), and trial counsel will not be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999).

        Concerning a post-sentence motion that the verdict was against the weight of the evidence,

it is well-established that a new trial may only be granted by a trial court where the verdict was so

contrary to the weight of the evidence it would "shock one's sense of justice." Commonwealth v.

Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004) (quoting Commonwealth v. Hunter, 554 A.2d

550, 555) (Pa. Super. 1989)). A new trial should not be granted because of a mere conflict in the

testimony or because a judge on the same facts would have arrived at a different conclusion.

Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000). Rather, "the role of the trial judge

is to determine that 'notwithstanding all the facts, certain facts are so clearly of greater weight that

to ignore them or to give them equal weight with all the facts is to deny justice."' Id at 752.
              .          .




Moreover, credibility determinations are solely within the province of the fact-finder, and 'an

appellate court may not reweigh the evidence and substitute its judgment for that of the finder of

fact.   Commonwealth v. Taylor, 63 A.3d 327 (Pa. Super. 2013) (quoting Commonwealth v.

Shaffer, 40 A.3d 1250, 1253 (Pa, Super. 2012)). In considering a claim that the trial court erred in


                                                   12
refusing to find that a verdict was against the weight of the evidence, "appellate review is limited

to whether the trial court palpably abused its discretion in ruling on the weight claim." Taylor, 63

A.3d at 327 (quoting Shaffer, 40 A.3d at 1253).

        Here, the Appellant cannot demonstrate that he was prejudiced by trial counsel's faiJure to

file a motion that the verdict was against the weight of the evidence. The evidence admitted at

trial firmly established that the appellant was guilty of attempted first degree murder, criminal

conspiracy, and possession of � firearm without a license, The complainant provided detailed

testimony that the Appellant was actively involved in the shooting that led to his hospitalization

for several serious bullet wounds. Moments prior to the shooting; the complainant observed the

Appellant and the shooter on the sidewalk from only ten (JO) feet away. (N.T 5/26/10 p. 43, 48).

The Appellant said the complainant's name aloud prior to the shooting, which allowed the

complainant to immediately identify him due to his "sad, unique voice." (N.T. 5/25/10 p. 81,

5/26/10 pp. 45 ..46). The complainant also told Ms. Ayers immediately after having been shot,

"Phil shot me. As a matter of fact, he didn't do it. He got somebody else to do it." (N.T. 5/25/10

pp. 64·65). The 75�38 prepared by Officer Brown at the scene included, "Complainant later stated

possible known doer goes by Phil." (N.T. 5/25/10 p. 35). Further, the complainant said the

Appellant's name to the police in the ambulance on his way to the hospital after the shooting.

(N.T. 5/26/10 pp. 55 ..56). When Detective Farrell presented the complainant with a photo array

of eight individuals the next day. the complainant positively identified the Appellant. (N.T.

5/26/10 p. 87). Ms. Ayers' testimony also corroborated the complainant's physical description of

the Appellant and shooter, along with the sequence of events. (N.T. 5/25/10 pp. 52-78). Moreover,

the forensic evidence recovered at the scene supported the testimony of the complainant and Ms.

Ayers on the events of the shooting. (N.T. 5/25/10 pp. 38, 97�109),


                                                13
        Furthermore, the Appellant's contentions to the weight of the evidence in his amended

PCRA petition does not disrupt the jury's finding of guilt. While the Appellant's face was partially

obscured during the shooting, the complainant testified that he was able to accurately identify the

Appellant based upon his unique voice and their prior interactions. (N.T. 5/25/10 p. 81, 5/26/10

pp. 14, 45-46). As it pertaJns to the testimony of Ms. Ayers, her inability to see the Appellant's

face during the shooting does not disrupt the positive identification made by the complainant.

Rather, Ms. Ayers; physical description of the Appellant corroborates the complainant's

description of the shooting.

       Regarding the complainant being allowed to stop his cross-examination so that he could

receive medication from his mother, an appellant must demonstrate that they were actually

prejudiced by a trial judge's sequestration order before any relief may be warranted.

Commonwealth v. Stevenson, 894 A.2d 759 (Pa. Super. 2006). Absent a clear abuse of discretion.

an appellate court will not reverse a trial judge's decision to grant or deny sequestration. Id. In

this case, the court allowed the complainant a brief recess from his testimony to receive necessary

medication from his mother as a sheriff watched over them the entire time. After the complainant

received this medication, the sheriff affirmed that the complainant took two pills and that nothing

regarding the case was spoken about between the complainant and his mother. (N.T. 5/26/10 p.

31 ). Under these attentive circumstances, the Appellant is unable to demonstrate that any actual

prejudice occurred from the court's limited denial of sequestration.

       Lastly, the complainant's testimony at the preliminary hearing regarding his uncertainty

about the identity of the shooter does not upset his identification of the Appellant as the non-

shooter. The complainant's uncertainty on the shooter stemmed from the disbelief that his friend

Mr. Kelly could have been involved in the shooting, as well as the intimidation he suffered at his


                                                14
school following the shooting. (N.T, 5/25/10 pp. 92�94, 100�102). As it concerns the Appellant.

the complainant consistently identified him as the non-shooter from the night of the shooting all

the way to trial. (N.T. 5/25/10 pp. 35, 81, 84, 94).

       Therefore, there was compelling evidence to support the jury's conclusion that the

Appellant was an active and willing participant in the shooting of the complainant. As a result,

the court would have properly denied any post-sentence motion by the Appellant based on the

weight of the evidence. Accordingly, the record establishes that the Appellant's claim of trial

counsel ineffectiveness for failing to file a post-sentence motion that the verdict was against the

weight of the evidence is without merit.

C.     Trial Counsel Was Not Ineffective For Failing To File A Motion To Reconsider
       Sentence

       Third, the Appellant contends that trial counsel was ineffective for failing to file a motion

to reconsider sentence. This court disagrees.

       "Sentencing is a matter vested in the sound discretion of the sentencing judge, and a

sentence will not be disturbed on appeal absent a manifest abuse of that discretion."

Commonwealth v. Anderson, 552 A.2d 1064, 1072 (Pa. Super. 1988). Where the court imposes a

sentence within the guideline range recommended by the Pennsylvania Commission on

Sentencing, appellate courts may not substitute their judgment for that of the sentencing court but

rather must limit their review to determine whether the trial court's sentence is "clearly

unreasonable." Commonwealth v. Dodge, 957 A.2d I 198 (Pa. Super. 2008). To succeed on this

issue on appeal, an appellant must establish that had counsel submitted a post-sentence motion

challenging their sentence, it "would have led to a different and more favorable outcome

at. .. sentencing." Commonwealth v. Reaves, 923 A.2d 1119, 1131-1132 (Pa. 2007). Also, due to

his voluntary absence from trial, the Appellant is unable to allege in his amended PCRA petition

                                                 15
that he requested that counsel file a post-sentence motion challenging the discretionary aspects of

his sentence. Counsel simply cannot be ineffective for failing to file a post-sentence motion that

an appellant never requested, Commonwealth v. Velasquez, 563 A.2d 1273, 1275 (Pa. Super

1989).

         Here, the Appellant cannot demonstrate that he was prejudiced by trial counsel's failure to

challenge his sentence. The court's sentencing of the Appellant was within the guideline range

and considered the Appellant's confinement as consistent with the protection of the public, the

gravity of the offense as it related to the impact on the life of the victim, and the rehabilitative

needs of the Appellant. See Pennsylvania Sentencing Code, 42 Pa. C.S. § 9701 et. seq. Consistent

with the protection of the public, the court noted the very serious nature of the offense and fact

that the Appellant abandoned his house arrest prior to his trial in abstenua. (N.T. 10/8/10 p. 10,

12). Considering the gravity of the offense as it related to the impact on the victim, the court noted

the serious injuries the victim suffered as a result. (N.T. 10/8/10 p. 11). Once a young man in

good physical shape, the victim was left with a limp and the need for consistent medication to

control his attention deficit issues and anger. Id. The court expressly noted the hurt and pain that

was evident in the victim as he testified over the course of two days at trial. Id. As it pertained to

rehabilitative needs of the Appellant, the court examined his prior criminal history and the serious

nature of the crimes he was convicted. (N.T. 10/8/10 pp. 11-13).

         In sum, the Appellant was ultimately sentenced to a total of 13!/z to 27 years of

confinement. The court had originally sentenced the Appellant to a total of 13Yz to 37 years of

confinement, but later modified its sentence on the attempted first degree murder from 10 to 30

years to 10.to 20 years. There is no indication that had the Appellant submitted a post-sentence

motion challenging their sentence, it would have led to a more favorable outcome. The court



                                                  16
sentenced the Appellant within the guideline range and considered the factors provided for by the

Pennsylvania Sentencing Code. Furthermore, it must also be noted that the Appellant never

requested such a post-sentence motion. a consequence of abandoning house arrest and never

appearing for trial. Accordingly, the record establishes that the Appellant's claim of trial counsel

ineffectiveness for failing to file a post-sentence motion to reconsider sentence is without merit

D.     Appellate Counsel Was Not Ineffective In Representation

       Finally. the Appellant contends that appellate counsel was ineffective in representation.

This court disagrees.

       In his amended PCRA petition, the Appellant alleges that appellate counsel was ineffective

for failing to raise a sufficiency of the evidence claim for the possession of a firearm without a

license conviction. As previously discussed, to obtain relief on a claim of ineffective assistance

of counsel, an appellant must show (1) that there is merit to the underlying claim; (2) that counsel

had no reasonable basis for their course of conduct; and (3) that the ineffectiveness resulted in

prejudice to the appellant, See,' e.g., Rega, 933 A.2d at 1018. In reviewing a sufficiency of the

evidence claim, an appellate court must view all the evidence admitted at trial in the light most

favorable to the verdict winner and determine whether there was sufficient evidence to enable the

fact-finder to find every element of the crime beyond a reasonable doubt. Commonwealth v.

Tucker, 143 A.3d 955 (Pa. Super. 2016). An appellate court may not weigh the evidence and

substitute its judgment for that of the fact-finder. Id. Had appellate counsel raised a sufficiency

of the evidence claim for possession of a firearm without a license, no merit would have been

found to the underlying claim.

       To be guilty of possessing a firearm without a license, a person must be found to have

carried a firearm in any vehicle or carried a firearm concealed on or about their person, except in


                                                 17
their place of abode or fixed place of business, without a valid and lawfully issued license. See 18

Pa.C.S.A. § 6106(a). For possessory convictions resulting under a theory of accomplice liability,

an offense-specific analysis of a defendant's intent and conduct is required. Commonwealth v.
                                                        '
Knox, 1 OS A.3d 1194 (Pa. 2014). In Knox, the Pennsylvania Supreme Court analyzed a defendant's

"accountability for the illegal possession of a firearm by another, under accomplice-liability

theoey.'' Id, at 1195. In that case, the underlying offense was possession of a firearm without a

license. Id. The prosecution ef the detendant was premised on him being an accomplice to his

brother's possession of a firearm when his brother was not licensed to do so. The Court held that

the proper inquiry was whether the defendant, "[acted] with the intent to promote or facilitate his

brother's unlicensed carrying of a concealed firearm, [soliciting] his brother to commit such[ariJ

offense." Id. at 1197.

       Here, there was sufficient evidence presented at trial that the Appellant intended to promote

or facilitate Mr. Kelly's unlicensed carrying of a concealed firearm, First, the issue of Mr. Kelly's

non-llcensure was plainly evident from him being a teenager at the time of the offense. An

individual must be at least 21 years old to apply for a· license to carry firearms in Pennsylvania.

See 18 Pa.C.S.A. § 6109. Second, the Appellant's actions and statements prior to the shooting

demonstrate an intent to facilitate the crime. The· Appellant and Mi'. Kelly together approached

the complainant and it was the Appellant that said the complainant's name aloud to signal to Mr.

Kelly to begin shooting. (N.T. 5/25/10 p. 81). In its judgment as the fact-finder, the jury had

sufficient information to find the Appellant guilty of possession of a firearm without a license. As

a result, if a sufficiency of the evidence claim had been raised on appeal, no merit would have been

found to the underlying claim.          Accordingly, Appellant's claim of appellate counsel

ineffectiveness was properly dismissed.


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   .
.. ,


       VI.   CQNCLU.S.IQ�
             For all of'these reasons. this court's decision should be affirmed.




       Pated: May 9� 2017




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