J-S32016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSE OLIVO-NOBLE                           :
                                               :
                       Appellant               :   No. 1710 MDA 2017

                  Appeal from the PCRA Order October 3, 2017
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0000009-2012


BEFORE:      PANELLA, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                            FILED OCTOBER 05, 2018

        Appellant Jose Olivo-Noble appeals from the order dismissing his first

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. Appellant raises claims of ineffectiveness of trial counsel 1 in failing to

impeach witnesses and to call character witnesses.

        We set forth the facts of this case in a previous memorandum:

        Appellant’s girlfriend was Jateeyia Thompson, and the victim in
        this case was Eric Gunraj (Victim).[2] Victim often visited the home
        of his friends, the Freeman family, who lived across the street
        from Jateeyia’s mother’s house. On Thanksgiving evening in
        2011, Victim, along with his friends Leonard Davis and Larry
        Brickhouse, went to a pub. Victim said hello to Appellant’s
        girlfriend, Jateeyia, gave her a hug, and then touched or grabbed
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   Larry Rosen, Esq., represented Appellant at trial.

2   Victim was also referred to as Quincy. See N.T., 12/6/12, at 55.
J-S32016-18


     her buttocks. Appellant confronted Victim and hit him. They both
     left the bar, and outside, Appellant again approached Victim and
     hit him. At trial, Jateeyia testified that she had seen Victim around
     in the clubs for [about] a month before the incident. Appellant
     testified that he did not know Victim, but had seen him once in a
     while when he goes to Jateeyia’s mother’s house. Furthermore,
     at trial the Commonwealth played surveillance video showing both
     instances of Appellant hitting Victim.

     Two nights later, around 5:00 or 6:00 p.m. on November 26,
     2011, Appellant went to the house across the street from
     Jateeyia’s mother’s house, where Victim visited every day.
     Appellant approached Ms. Masai Freeman, a resident of the home,
     and asked if Victim was around. After being told he was not,
     Appellant told Masai to tell Victim he had stopped by, which Masai
     did by phone.

     Later that night, into the early morning hours, Victim was on the
     front porch of the Freeman home, along with Tanisha Freeman—
     who is Masai’s sister—and Leonard Davis. Jateeyia and her
     mother were at the mother’s house across the street. Appellant

        approached the [Freeman] house from across the street,
        stopped at the bottom of the porch stairs and accused
        [Victim] of looking for [Appellant] as other men approached
        from the side of the porch. An argument ensued between
        [Victim] and [Appellant], in which Mr. Davis interjected
        “What are we arguing for. There’s kids in the crib.” Mr.
        Davis continued to intervene and stated “it’s all you all
        against us. We can go in the alleyway and settle our
        differences.” Meanwhile, [Victim] began pulling up his
        pants. [Appellant] warned [Victim] to stop reaching. Mr.
        Davis [told Victim to stop reaching] as well.

        Nevertheless, [Victim] persisted to pull at his pants, and
        [Appellant] drew his gun and began to shoot. Mr. Davis
        grabbed Tanisha Freeman and pushed her through the front
        door of the house. As Mr. Davis placed on[e] hand on
        [Victim] to grab him, he felt the shots hit [Victim’s] body.
        Mr. Davis followed Tanisha in through the door as [Victim’s]
        body dropped to the floor of the porch. After the first round
        of shots, Tanisha turned toward the direction [Appellant]
        had run and shouted, “you’re going to jail, you’re going to
        jail, you shot him, I am calling the cops you fat expletive,
        you’re going to jail, you’re going to jail.” While shouting,


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           Tanisha looked out of the house and saw [Appellant] back
           up [and] shoot a second round of shots into the house. Two
           of the bullets from the second volley struck Ms. Oveta
           Johnson in the buttocks as she ran to call the police.
           [Johnson is Masai and Tanisha’s mother and was inside the
           house. Victim] died on the porch shortly after the shooting.

           [Victim] was not in possession of a gun.

Commonwealth v. Olivo-Noble, 1112 MDA 2013, 1-3 (Pa. Super. filed Dec.

22, 2014) (citations, footnotes, ellipses, and some internal quotation marks

omitted).

      At trial, trial counsel called Shirley Thompson, Jeanette Thompson, and

Jateeyia Thompson, who testified to Appellant’s good character.           N.T.,

12/6/12, 391-92, 398, 402-03. Appellant, who also testified at trial, admitted

to approaching the Freeman residence searching for Victim, carrying a gun on

his person, and shooting several shots towards Victim. Id. at 442-43, 445-

46, 465.

      On December 6, 2012, the jury convicted Appellant of first-degree

murder, aggravated assault, recklessly endangering another person, firearms

not to be carried without a license, and simple assault. On that same day, the

trial court sentenced Appellant to life imprisonment for the first-degree murder

conviction, four to eight years’ incarceration for the aggravated assault

conviction, one to two years’ incarceration for the reckless endangerment

conviction, and two to four years’ incarceration for the firearms conviction.

Simple assault merged for sentencing purposes. All sentences were to run

concurrent to each other.



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       Appellant filed a post-sentence motion, which the trial court denied on

June 14, 2013. On June 21, 2013, Appellant filed a timely notice of appeal.

On December 22, 2014, this Court affirmed Appellant’s judgment of sentence.

We held that the (1) evidence was sufficient to find Appellant guilty of first-

degree murder and aggravated assault; (2) verdict was not against the weight

of the evidence; and (3) trial court did not abuse its discretion in precluding

evidence regarding Victim’s prior bad acts or a neighbor’s testimony that

someone told Victim to stop reaching for his waist. Appellant filed a petition

for allowance of appeal, which the Pennsylvania Supreme Court denied on

October 29, 2015.

       On August 19, 2016, Appellant filed his first pro se PCRA petition. On

September 15, 2016, the PCRA court appointed counsel, who filed a counseled

PCRA petition on November 14, 2016. Appellant claimed that trial counsel

was ineffective for failing to (1) impeach the credibility of two of the

Commonwealth’s witnesses; (2) request a jury instruction concerning

credibility of witnesses; (3) request a jury instruction regarding “heat of

passion”; (4) impeach the Commonwealth’s witnesses using prior inconsistent

statements; and (5) call character witnesses on Appellant’s behalf.3 See PCRA
____________________________________________


3  We note that after raising claims of ineffectiveness regarding jury
instructions as to credibility of witnesses, “heat of passion,” and impeaching
witnesses with prior inconsistent statements, PCRA counsel also stated why
these claims lacked merit and that trial counsel could not be deemed
ineffective. See PCRA Pet., 11/14/16, at 5, 6, 8 (unpaginated).




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Pet., 11/14/16, at 4-11 (unpaginated). The PCRA petition also included a list

of witnesses to be called at the evidentiary hearing, including Appellant, trial

counsel, “Mrs. Kelly [Goss], Mr. [Ronald] Johnson, Mrs. [L.] Ford, and Mrs.

[M.E.] Cruz.”4 Id. at Witness List for Evidentiary Hr’g.

        On December 8, 2016, counsel filed an amended PCRA petition for the

purpose of updating the witness list.          See Am. PCRA Pet., 12/8/16.       The

updated witness list did not add new witnesses, but provided full names and

addresses of some of the previously named witnesses. Id. at Am. Witness

List for Evidentiary Hr’g.

        On March 27, 2017, the PCRA court held a hearing, and on October 3,

2017, the PCRA court denied relief. Appellant filed a timely notice of appeal

and a court-ordered Pa.R.A.P. 1925(b) statement.           The PCRA court filed a

statement in lieu of a Pa.R.A.P. 1925(a) opinion.

        Appellant raises the following issues on appeal:

        1. Whether trial counsel was ineffective for failing to impeach the
           Commonwealth witness[es.]

        2. Whether trial counsel was ineffective for failing to call character
           witnesses on the Appellant’s behalf[.]

Appellant’s Brief at 5 (full capitalization omitted).

        Our standard of review from the dismissal of a PCRA petition is limited

to examining “whether the record supports the PCRA court’s determination



____________________________________________


4   This witness list did not include the witnesses’ full names or addresses.

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and whether the PCRA court’s decision is free of legal error.” Commonwealth

v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citation omitted).

                         Ineffectiveness of counsel

      It is well-settled that to establish a claim of ineffective assistance of

counsel, a defendant “must show, by a preponderance of the evidence,

ineffective assistance of counsel which, in the circumstances of the particular

case, so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.” Commonwealth

v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). The

burden is on the defendant to prove all three of the following prongs: “(1)

the underlying claim is of arguable merit; (2) that counsel had no reasonable

strategic basis for his or her action or inaction; and (3) but for the errors and

omissions of counsel, there is a reasonable probability that the outcome of the

proceedings would have been different.”          Id. (citation omitted); see

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).

      Our Supreme Court has explained:

      A chosen strategy will not be found to have lacked a reasonable
      basis unless it is proven that an alternative not chosen offered a
      potential for success substantially greater than the course actually
      pursued. Prejudice in the context of ineffective assistance of
      counsel means demonstrating that there is a reasonable
      probability that, but for counsel’s error, the outcome of the
      proceeding would have been different. Counsel is presumed to
      have been effective and the burden of rebutting that presumption
      rests with the petitioner.




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Commonwealth v. Fletcher, 986 A.2d 759, 772 (Pa. 2009) (internal

quotation marks and citations omitted).

       We add that “boilerplate allegations and bald assertions of no reasonable

basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove

that counsel was ineffective.” Commonwealth v. Paddy, 15 A.3d 431, 443

(Pa. 2011). Moreover, “[a] failure to satisfy any prong of the ineffectiveness

test requires rejection of the claim of ineffectiveness.” Daniels, 963 A.2d at

419.

         A.     Impeachment of the Commonwealth’s witnesses

       In Appellant’s first issue, he argues that counsel was ineffective for

failing to impeach Commonwealth witnesses Leonard Davis and Terrance

Williams with evidence of their prior crimen falsi convictions. Appellant’s Brief

at 10-12.     Our Supreme Court has stated that “[e]vidence of a witness’s

conviction for a crime involving dishonesty or a false statement is generally

admissible.”    Commonwealth v. Treiber, 121 A.3d 435, 456 (Pa. 2015)

(citing Pa.R.E. 609(a)). “A failure to so impeach a key witness is considered

ineffectiveness in the absence of a reasonable strategic basis for not

impeaching.” Id. (citation omitted).

                             1.    Leonard Davis

       Appellant claims that Davis had a prior criminal trespass conviction from

February of 2012. He contends that although the Commonwealth established

during Davis’ direct-examination that he “was in prison garb because of a

parole violation,” trial counsel “did not cross-examine or use [Davis’]

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conviction to discredit his testimony.” Appellant’s Brief at 10-11.   Appellant

maintains that there was no strategic bases for failing to impeach Davis and

that the outcome of the case could have been different. Id. at 12.

      By way of background, at the outset of Davis’ testimony at trial, the

following relevant exchange occurred:

      [Commonwealth:] And currently obviously you’re in Dauphin
      County Prison. When did you go to Dauphin County Prison?

      [Davis:] Yesterday.

      Q And that was on a probation violation?

      A That’s what they said.

N.T. Trial, 12/6/12, at 147. Davis then testified as to what occurred on the

night of November 26, 2011.

      I mean, Eric, it happened so fast. When he, Tanisha, Masai and
      [Victim], we was all talking. The next thing you know [Appellant]
      comes over. We don’t know where he came from. He had to be
      across the street, though, because of the angle.

      He was talking. I don’t remember what he was saying, but I guess
      he was, like, you looking for us or whatever. We turned our head.
      Some other guys are coming, like, from the side of the porch
      and—

                                    ***

      They started arguing. I’m like, what are we arguing for. There’s
      kids in the crib. Why are you all doing this here? One guy is, no
      disrespect. I said, you already disrespecting for being here. So I
      don’t know. They started arguing, I said, I’m going to be real. I
      said, it’s all you all against us. We can go in the alleyway and
      settle our differences or whatever. I guess they didn’t want to
      hear that. [Victim] went to pull up his pants, and I don’t know
      why he kept doing it, and the guy told him to stop reaching. I told
      him to stop reaching. I’m, like, stop doing that. I seen the gun



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      drawn. That’s when I grabbed Tanisha and I pushed her through
      the door. As I was pushing her, I heard shots.

Id. at 152-53.      During cross-examination, defense counsel focused his

questioning to Victim’s “reaching”:

      [Defense counsel:] Did you see [Victim] begin to act like he was
      reaching for something?

      [Davis:] I mean, he went to like pull up his pants. Then he tried
      to reach. I was just like, stop whatever you doing because you
      don’t have anything, yeah.

      Q And how many times do you recall the words stop reaching,
      stop reaching, being said by [Appellant]?

      A Two times.

      Q Okay. And after the first time, were you watching a little more
      closely what was going on with [Victim]?

      A I mean, after -- yeah, when he said it again, that’s when I was
      like, yeah.

                                      ***

      Q The concern you had in terms of trying to get your friend to
      stop reaching was your concern you might get shot, correct?

      A Yes, sir.

      Q And even though he may not have had a gun, at the very least
      he acted, it might have been a bluff, correct?

      A I mean, I’m not going to say that, but it could have been. I’m
      not going to lie. I don’t know.

      Q So once again, to be clear, [Victim] was tugging at his pants
      on the right-hand side?

      A I remember just him pulling up his pants.          That’s all I
      remember. I don’t remember which side.

Id. at 168-70.




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      The PCRA court concluded that trial counsel was not ineffective and

stated:

      Attorney Rosen testified as follows:

          Mr. Davis, I thought, frankly, was our best witness. He was
          a Commonwealth witness, but I thought was our strongest
          witness. I would not have wanted to impeach him because
          he kind of corroborated the fact that [V]ictim in this case
          was intoxicated the night of the incident, and he in fact
          corroborated the fact that [Victim] had made at least two
          motions towards his waistband corroborating what
          [Appellant] testified to which caused him to become fearful
          for his safety and took the actions he took.

          So we felt that the fact that – Mr. Davis, we tried to find him
          for quite a long period of time. We were unable to, but the
          Commonwealth found him and put him in protective custody
          before he testified.

      [PCRA Hearing, 3-27-17, Notes of Testimony, pp. 8-9]. Attorney
      Rosen’s testimony reflects that he had a reasonable trial strategy
      to not impeach Mr. Davis’ honesty. Had Attorney Rosen requested
      a crimen falsi instruction, it would have further emphasized Mr.
      Davis’ lack of honesty.        Mr. Davis’ trial testimony aided
      [Appellant]’s defense.

PCRA Ct. Op., 10/3/17, at 2. We agree with the PCRA court’s rationale and

conclude that trial counsel was not ineffective for failing to impeach Davis.

See Treiber, 121 A.3d at 456; Daniels, 963 A.2d at 419.

                           2.     Terrance Williams

      Regarding Williams, Appellant argues that while the Commonwealth

brought out on direct-examination that Williams was previously convicted,

trial counsel did not use this conviction to discredit Williams’ testimony.

Appellant’s Brief at 11. Appellant contends that trial counsel had no strategic



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basis and that the outcome of the jury trial could have been different. Id. at

12. Appellant contends that since the jury was not given the opportunity to

learn of this information, trial counsel was ineffective. Id.

      During trial, the Commonwealth called Williams to testify, and the

following exchange occurred:

      [Commonwealth:] And currently you’re incarcerated, correct?

      [Williams:] Yes, I am.

      Q In what facility?

      A I just got transferred back to Dauphin County Prison.

      Q What are you in prison for?

      A Probation violation, absconding.

      Q And that’s out of Lycoming County?

      A Yes, it is.

      Q What was your original charge?

      A Retail theft.

N.T., 12/6/12, at 174. Williams went on to testify that on the night of the

shooting, he was heading to his friend’s house when he heard around ten to

twelve shots. Id. at 176. He stated that he did not see who was shooting but

saw where the shots were coming from. Id. at 177. Williams testified that

right after the shots were fired, he saw an individual leave in a car, and he

gave a description of the individual and the car. Id. at 177-78. Williams then

called the police. Id. at 178. On cross-examination, trial counsel did not refer

to Williams’ prior conviction for retail theft.



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       Instantly, Appellant makes a bald allegation of prejudice.    Appellant,

however, has not established any way in which he has been prejudiced by trial

counsel’s failure to impeach Williams by re-raising the evidence of Williams’

prior conviction that was raised by the Commonwealth. Therefore, we agree

with the PCRA court’s conclusion that trial counsel was not ineffective for

failing to impeach Williams.5 See Treiber, 121 A.3d at 457; Paddy, 15 A.3d

at 443.

                            B.      Character witnesses

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

for failing to call certain character witnesses on his behalf. Appellant’s Brief

at 12. Appellant claims that Rosa Pereira, Loayma Luz Tussen, and Maria

Roman testified at the PCRA evidentiary hearing that they were willing to

testify at trial but that trial counsel never contacted them.    Id. at 12-13.

Appellant further notes that an additional witness, Ronald Johnson, provided

an affidavit that he would also have testified on Appellant’s behalf. Id. at 13.

According to Appellant, he had given trial counsel a list of people who “had

reached out to [Appellant] and said [that they were] willing to come and testify

on [his] behalf.” Id. Appellant maintains that character witnesses would have




____________________________________________


5Moreover, we note that the testimony offered by Williams was cumulative of
other evidence presented at trial.




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“directly supported” counsel’s self-defense theory and the outcome of the case

would have been different. Id. at 15.

       At the evidentiary hearing, PCRA counsel called Pereira, Tussen, and

Roman to testify, and moved into evidence an affidavit from Johnson.6 Pereira

testified that she has known Appellant for over ten years. N.T. PCRA Hr’g,

3/27/17, at 16. She explained that she lives approximately six houses from

his grandmother’s home, and she “see[s] him every day when he come[s] to

see his grandma.”         Id. at 17.      She stated that he “stop[s], talk[s] to

everybody. He was quiet. I don’t know. Happy. He was a good boy. He

respect[s] everybody, you know, family, no problem.” Id. at 19. She further

testified that she was available and willing to testify on Appellant’s behalf. Id.

at 18. She acknowledged that she did not contact trial counsel about testifying

at trial. Id. at 21.

       Next, Tussen testified that Appellant was like an uncle to her. Id. at

24. She explained that Appellant played a big role in her upbringing and that

he was the only father figure she had. Id. She stated that she was present

during trial and had conversations with trial counsel about testifying. Id. at

25.    She continued that she would have testified that Appellant was a


____________________________________________


6Johnson was the only individual on Appellant’s witness list whose statement
was offered at the evidentiary hearing. The Commonwealth objected at the
evidentiary hearing, noting that Appellant failed to identify Pereira, Tussen,
and Roman, but the PCRA court overruled the objection. See N.T. PCRA Hr’g,
3/27/17, at 4. The Commonwealth also objected to Johnson’s affidavit. Id.
at 5, 42.

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“nonviolent person[,] was very positive in the community with the children[,

and was] very peaceful and loving.” Id. at 27.

        Roman testified that she knew Appellant since he was in middle school.

Id. at 39. She stated that she was present during trial and was willing to

testify. Id. She further stated that she “kn[e]w him as a person who works”

and that she has been at birthday parties were he is present and he “always

behave[s] very well.” Id. at 40. She acknowledged that she did not contact

trial counsel about testifying. Id. at 39.

        PCRA counsel introduced an affidavit by Johnson. Id. at 42. The PCRA

court admitted the affidavit over the Commonwealth’s objection.             Id.

However, the affidavit was not included in the certified record.

        Finally, Appellant testified at the PCRA evidentiary hearing. He stated

that he gave several names to trial counsel of people who were willing to

testify on his behalf. Id. at 33. He continued that the names he gave counsel

were Ronald Johnson, Mary Cahill, Beverly Singleton, Kelly Goss, and Palmer.7

Id. Appellant also testified that during trial he asked trial counsel if he was

going to call any character witnesses and that trial counsel replied that he

was. Id. at 34. However, Appellant continued, the witnesses that trial counsel

called were not the witnesses that Appellant had identified. Id.

        Generally, “[e]vidence of a person’s character or character trait is not

admissible to prove that on a particular occasion the person acted in

____________________________________________


7   Appellant does not indicate Palmer’s first name.

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accordance with the character or character trait.”          Pa.R.E. 404(a)(1).

However, “a defendant may offer evidence of a pertinent trait, and if the

evidence is admitted, the prosecutor may offer evidence to rebut it[.]” Pa.R.E.

404(a)(2)(A).

      We have explained that

      evidence of good character is to be regarded as evidence of
      substantive fact just as any other evidence tending to establish
      innocence and may be considered by the jury in connection with
      all of the evidence presented in the case on the general issue of
      guilt or innocence. Evidence of good character is substantive and
      positive evidence, not a mere make weight to be considered in a
      doubtful case, and, . . . is an independent factor which may of
      itself engender reasonable doubt or produce a conclusion of
      innocence. Evidence of good character offered by a defendant in
      a criminal prosecution must be limited to his general reputation
      for the particular trait or traits of character involved in the
      commission of the crime charged. The cross-examination of such
      witnesses by the Commonwealth must be limited to the same
      traits. Such evidence must relate to a period at or about the time
      the offense was committed, and must be established by testimony
      of witnesses as to the community opinion of the individual in
      question, not through specific acts or mere rumor.

Commonwealth v. Goodmond, --- A.3d ---, 2018 WL 2996061, at *3 (Pa.

Super. 2018) (citation and emphases omitted).

      Moreover, “failure to call character witnesses [at trial] does not

constitute per se ineffectiveness.”     Treiber, 121 A.3d at 463 (citation

omitted). An appellant must show that

      (1) the witness existed; (2) the witness was available to testify
      for the defense; (3) counsel knew of, or should have known of,
      the existence of the witness; (4) the witness was willing to testify
      for the defense; and (5) the absence of the testimony of the



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      witness was so prejudicial as to have denied the defendant a fair
      trial.

Id. at 464 (citation omitted).

      Here, Appellant testified at the PCRA hearing that he provided trial

counsel with names of witnesses who were willing to testify at trial. Notably,

Pereira, Tussen, and Roman were not among the witnesses Appellant named

before trial. N.T., 3/27/17, at 33. Moreover, Pereira and Roman testified that

they did not contact trial counsel to inform him that they were willing to testify

on Appellant’s behalf. Id. at 21, 39. Therefore, Appellant has failed to prove

that trial counsel knew, or should have known, of their existence.           See

Treiber, 121 A.3d at 464.

      As for Tussen, the absence of her testimony was not so prejudicial as to

have denied Appellant a fair trial. The evidence at trial was overwhelming.

Two nights before the shooting Appellant twice struck Victim at a pub after

Victim hugged and grabbed Appellant’s girlfriend’s buttocks. Olivo-Noble,

1112 MDA 2013, at 2. The Commonwealth presented video footage at trial of

both instances of Appellant hitting Victim. Id. Two nights later, Appellant

unsuccessfully searched for Victim at the Freeman residence. Id. Later that

night, Appellant again approached the Freeman residence in search of Victim

while Appellant was armed.       Id. at 3.    Several witnesses testified as to

Appellant’s deliberate act of shooting Victim.     Id.   Several witnesses also

testified that Appellant fired two sets of shots, totaling from ten to twelve

shots. N.T., 12/6/12, at 155, 172, 176, 194. Appellant, who testified at trial,



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admitted to carrying a weapon and shooting in Victim’s direction. Id. at 465.

Therefore, we agree with the PCRA court’s conclusion that Tussen’s testimony

that Appellant was a nonviolent, peaceful, and loving person, and that he was

a positive figure in the community would not have changed the outcome of

the trial. See Treiber, 121 A.3d at 464.

      Lastly, we address the issue of Johnson’s affidavit. This Court has stated

that it is an appellant’s responsibility “to ensure that the record certified on

appeal is complete in the sense that it contains all of the materials necessary

for the reviewing court to perform its duty.”         See Commonwealth v.

Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc) (citation omitted). The

reason for this is that the certified record is “[t]he fundamental tool for

appellate review.” Id. at 6 (citation omitted). It is an “official record of the

events that occurred in the trial court.” Id. (citation omitted). “Simply put,

if a document is not in the certified record, the Superior Court may not

consider it.” Id. (citation omitted).

      We have conducted a thorough review of the certified record and have

not found Johnson’s affidavit. Therefore, because the affidavit is not contained

in the certified record, we are not equipped to review this claim. See Preston,

904 A.2d at 6.

      Accordingly, Appellant’s claim that trial counsel was ineffective for failing

to call Pereira, Tussen, Roman, and Johnson to testify at trial as character

witnesses lacks arguable merit. See Daniels, 963 A.2d at 419.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2018




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