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                                  2014 PA Super 201

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANTHONY D. PANDER,

                            Appellant                 No. 3478 EDA 2012


                Appeal from the PCRA Order December 17, 2012
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009831-2008


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN,
        OTT, WECHT, STABILE, and JENKINS, JJ.

OPINION BY BOWES, J.:                            FILED SEPTEMBER 17, 2014

        Anthony Pander appeals from the order entered December 17, 2012,

in which the court denied his first counseled petition for post-conviction relief

filed pursuant to the Post-Conviction Relief A                                  -

9546. We affirm.



brother-in-law. Appellant, his sister Georgianna Pander,1

boyfriend, Brian Dingler, were celebrating New Year 2008 at Dingl

residence. Georgianna Pander informed Appellant that she was upset with

the victim, causing Appellant to become extremely angry.           As a result,

____________________________________________


1
    Georgianna Pander was married to the victim, but they were separated.
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                                                                                    2



Dingler followed Appellant at the behest of his girlfriend and entered the

front passenger seat of the vehicle in an attempt to calm Appellant down.

However, Appellant proceeded to drive his car, with Dingler as his

                                                                                   n




Gabrinidis attempted to flee, running down the street screaming for help and

                                               ellant, however, continued his attack,

knocking down Mr. Gabrinidis and assaulting him as he lay in the street.

       Several neighbors of the victim, who were familiar with Appellant,

witnessed the attack.       Kimberly Bumpess heard screams from outside her

window and observed Mr. Gabrinidis fleeing from his home.               According to




witnessed the attack.        Both Ms. Bumpess and her son saw the assailant



Police later showed Mr. Bumpess a family photograph depicting Appellant,

but he failed to identify Appellant as the person he saw assaulting the

victim. Mr. Bumpess, nonetheless, subsequently identified Appellant at trial.

____________________________________________


2




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A third neighbor, who could not conclusively identify Appellant, witnessed

the attack and told police that the assailant entered the driver side door of a

vehicle before fleeing.

      Upon re-entering his car, Appellant informed Dingler that Mr.




Dingler observed Appellant scrubbing his pants and hands in a bathroom.

Police arrived on the scene of the attack and found Mr. Gabrinidis bleeding

from his chest. Mr. Gabrinidis died as a result of multiple stab wounds. One

stab wound punctured his heart and another his liver.        According to the

medical examiner, either injury could have caused his death.

      A jury found Appellant guilty of first-degree murder and possession of



the court sentenced Appellant to life imprisonment without parole for the

murder charge and a concurrent term of imprisonment of two and one-half

to five years for the PIC count.     Appellant did not file a post-sentence

motion, but he did file a pro se notice of appeal.       The court appointed

counsel, and this Court affirmed. Commonwealth v. Pander, 24 A.3d 454

(Pa.Super. 2011) (unpublished memorandum).          Appellant did not seek a

petition for allowance of appeal.

      However, Appellant timely filed the underlying pro se PCRA petition in

this matter, which was docketed on May 23, 2011. Thereafter, he submitted


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an amended pro se petition on July 13, 2011.        The PCRA court appointed

counsel.   Counsel filed an amended petition on January 20, 2012.             The

Commonwealth filed a response on August 7, 2012, seeking dismissal.

Appellant responded to that motion on August 13, 2012. The PCRA court

issued a notice of dismissal pursuant to Pa.R.Crim.P. 907 on November 19,

2012. Appellant did not file a response to that notice, and the PCRA court

entered its final order on December 17, 2012. This timely appeal ensued.

      The PCRA court directed Appellant to file and serve a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant complied, and the court authored its opinion in support of its

order. A divided panel of this Court, with this author dissenting, affirmed in

part and reversed in part, and remanded for additional proceedings. Both

parties sought en banc

request. The matter is now ready for our consideration.

      Appellant presents the following issues for our review.

      I.     Is the appellant entitled to post-conviction relief since he
            was rendered ineffective assistance of trial counsel and
            appellate counsel?

            A. Is the appellant entitled to post-conviction relief as a
               result of the ineffectiveness of appellate counsel for
               failing to raise in the direct appeal the issue of the trial

               alternate juror?

            B. Is the appellant entitled to post-conviction relief as a
               result of the ineffectiveness of appellate counsel for
               failing to raise in the direct appeal the issue of the trial


                                     -4-
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                 following a question by the prosecutor suggesting to the
                 jury that the appellant had a burden to produce
                 evidence?

              C. Is the appellant entitled to post-conviction relief as a
                 result of the ineffectiveness of trial counsel for failing to
                 request the trial court for a Kloiber[3]instruction as to
                 Commonwealth witness Shakur Bumpess?

              D. Is the appellant entitled to post-conviction relief as a
                 result of the ineffectiveness of trial counsel for failing to
                 present evidence and argument to prove that someone
                 other than the appellant committed the murder?

              E. Is the appellant entitled to post-conviction relief as a
                 result of the ineffectiveness of trial counsel for failing to
                 interview and present the testimony of Philip DeLuca,
                 Eleftheria Gabranidias, [sic] Rosemarie Pander and
                 Charlene Pander as to the contentious relationship Brian
                 Dingler had with the victim and that Georgianna Pander
                 would instigate fights between the victim and Dingler?

              F. Is the appellant entitled to post-conviction relief as a
                 result of the ineffectiveness of trial counsel for failing to
                 request the Commonwealth to test or make
                 arrangements for the testing of the blood found in the


                        -5.

       Our review in PCRA matters is guided by the following principles. We

                                               favorable to the prevailing party at the

                Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014)

(en banc). This review is limited to the evidence of record and the factual

findings of the PCRA court. Id                                                  actual

____________________________________________


3
    Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).



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findings of the PCRA court and will not disturb those findings unless they

                                    Id.

ruling is free of legal error and is supported by record evidence, we will not

disturb its ruling. Id. Nonetheless, where the issue pertains to a question

                                           de novo and our scope of review is

             Id.



comprehensively outlined the law regarding such claims in Commonwealth

v. Stewart, 84 A.3d 701 (Pa.Super. 2013) (en banc).             Therein, we set

forth:


         petitioner must establish: (1) that the underlying issue has
         arguable merit; (2) counsel's actions lacked an objective
         reasonable basis; and (3) actual prejudice resulted from
                                       Commonwealth v. Chmiel, 612

         to plead or meet any elements of the above-cited test, his claim
                     Commonwealth v. Burkett, 5 A.3d 1260, 1272
         (Pa.Super. 2010).

                A claim has arguable merit where the factual averments, if
         accurate, could establish cause for relief. See Commonwealth
         v. Jones,
         petitioner raises allegations, which, even if accepted as true, do
         not establish the underlying claim ..., he or she will have failed

                       acts rise to the level of arguable merit is a legal
                         Commonwealth v. Saranchak, 581 Pa. 490,
         866 A.2d 292, 304 n. 14 (2005).

               The test for deciding whether counsel had a reasonable
         basis for his action or inaction is whether no competent counsel
         would have chosen that action or inaction, or, the alternative,
         not chosen, offered a significantly greater potential chance of

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      success. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874
      (2010). Counsel's decisions will be considered reasonable if they
      effectuated his client's interests. Commonwealth v. Miller,
      605 Pa. 1, 987 A.2d 638 (2009). We do not employ a hindsight
      analysis in comparing trial counsel's actions with other efforts he
      may have taken. Id. at 653.

                                            re is a reasonable probability
      that, but for counsel's errors, the result of the proceeding would
      have been different. Commonwealth v. Steele, 599 Pa. 341,

      probability sufficient to undermine confid
      Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super.
                Burkett, supra at 1272; Strickland v. Washington,
      466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Stewart, supra at 706-707.

                                          appellate counsel was ineffective for

failing to raise on appeal a preserved challenge to the continuation of juror

number seven sitting on the jury after she became upset over viewing a

photograph of the deceased. Specifically, during the testimony of a medical

examiner, juror number seven required a break after observing pictures of

the victim. She informed the trial court that the photographs reminded her

of her own husband, who had died the prior year, and asserted that the

photographs were too graphic. The court inquired whether she could remain

impartial, and notwithstanding her emotional reaction, she twice indicated

that she could.   The trial court directed that no additional photographs be

shown. Trial counsel asked that the court seat an alternate juror, but the

court denied that request. Appellate counsel, who was not trial counsel, did

not raise this issue on direct appeal.


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      Relying on case law discussing juror challenges for cause, Appellant

contends that, since       the   juror   became   so   upset   over   viewing the

photographs that she had to exit the courtroom, she should have been



reaction to the photographic evidence and because she was still mourning

the loss of her husband.

      The Commonwealth responds that because the juror stated that she

could be fair and impartial, the trial court did not err.       It maintains that

appellate counsel could not be ineffective for failing to present this issue on

direct appeal. The PCRA court set forth that the juror did not discuss the

photographs with the other jurors after she became upset, provided that she

could remain fair and impartial, and was questioned by trial counsel.

Accordingly, it reasoned that the juror was not unable or disqualified from

performing her duty, see Pa.R.Crim.P. 645, and appellate counsel could not

be ineffective for declining to pursue the issue.

      Recently, in Commonwealth v. Hale, 85 A.3d 570 (Pa.Super. 2014)

allowance of appeal granted on other ground, __ A.3d __ (Pa. 2014) (filed

July 2, 2014), this Court analyzed cases discussing the law regarding the

dismissal of jurors for cause.     Therein, we noted that Pennsylvania courts

have distinguished between situations where a juror is presumed biased and

cannot be rehabilitated by questioning from the court, and those jurors who

through questioning indicate that they can be fair and impartial. While Hale


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and the cases discussed therein involved juror challenges prior to trial, we

find the discussion therein apt in lig

should have been presumed prejudiced.

      The Hale Court quoted Commonwealth v. Colon, 299 A.2d 326

(Pa.Super. 1972), which set forth that

      challenges for cause should be granted: (1) when the potential
      juror has such a close relationship, be it familial, financial or
      situational, with parties, counsel, victims, or witnesses, that the
      court will presume the likelihood of prejudice; and (2) when the
      potential juror's likelihood of prejudice is exhibited by his
      conduct and answers to questions at [v]oir dire.

Colon, supra at 327 (footnote omitted).

      In the first situation, our standard of review has been labeled by this

Court as ordinary. Colon, supra at 327-            In the former situation, the

determination is practically one of law and as such is subject to ordinary

           but see Commonwealth v. Black, 376 A.2d 627 (Pa. 1977)



witness evaluated under abuse of discretion standard); Commonwealth v.

Briggs,    12 A.3d 291, 332-333

regarding whether to disqualify a juror for cause is within its sound

discretion and will not be reversed in the absence of a palpable abuse of

                                that what this Court has meant by indicating

that our standard of review is ordinary is that, as a matter of law, it is error

to allow a juror to sit and take part in final deliberations when he or she has

a close relationship to certain interested individuals involved in the case. It

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is nonetheless clear that where the relationship between the juror and a

party, counsel, victim, or witness is not a close relationship, we evaluate a

                                                                              f

discretion standard. Colon, supra; see also Commonwealth v. Johnson,

445 A.2d 509, 512 (Pa.Super. 1982); Commonwealth v. Lesko, 15 A.3d

345, 413 (Pa. 2011).4



prejudice.    Accordingly, we decline to view the juror as per se prejudiced.

Indeed, we do not view becoming upset over a photograph of a murder

victim as indicating prejudice. That the juror was disturbed by pictures of

the victim because it brought back memories of her recently deceased

husband does not alone indicate an inability to consider the evidence

impartially. Here, had appellate counsel raised the issue on direct appeal,

we would have reviewed the issue under our abuse of discretion standard.



that he or she could remain fair and the trial court has had the opportunity

to view the juror in question, we do not lightly reconsider its decision. Since

the juror repeatedly stated that she could remain fair and impartial and was

____________________________________________


4
   The Court in Commonwealth v. Johnson, 445 A.2d 509 (Pa.Super.
1982), recognized that there may exist situations where the two categories
discussed in Commonwealth v. Colon, 299 A.2d 326 (Pa.Super. 1972),
intermingle. We are also cognizant that the abuse of discretion standard
encompasses errors of law.



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questioned by trial counsel and the court, appellate counsel was not

ineffective in not raising this issue on direct appeal.

      Appel

that the trial court erred in denying a motion for a mistrial after the

prosecutor asked a detective if the defense could have tested evidence to

determine if it was blood.     In this regard, police, pursuant to a warrant,



were taken.     Police did not observe any blood in or on the vehicle, and

remarked that there was a small stain that appeared to be from ketchup or

sauce on the passenger seat.        After police processed the vehicle, they



investigator took pictures of the car. One picture contained what appeared

to be blood on the inside passenger door. The investigator was deceased at

the time of trial.

      During     direct    examination   of    Detective   David   Baker,    the

Commonwealth asked about the respective stains. The following exchange

occurred.

      Prosecutor: When you processed the car, did that stain appear
      to be blood?

      A: No, it did not.

      Prosecutor: What about it made it not appear to be blood?

      A:    It looks like it could be sauce or ketchup.    It had a slight




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     Prosecutor: Is that consistent with what you see on the door
     there or not?




     Prosecutor: If you thought there was blood on the seat, what
     would you have done?

     A: For that portion, I would have cut the seat and submitted it.

     Prosecutor: Just like you can submit things for test, is the
     Defense entitled to that as well?

     A: Yes.

     Prosecutor: Did any attorney on behalf of [Appellant]

     Trial Counsel: Objection.

     Court: Sustained.

     A. No.

     Court: Sustained. Strike the answer.

N.T., 12/2/09, at 138-139.

     Appellant did not move for a mistrial at this juncture.   However, on

redirect, another exchange occurred regarding the purported blood from the




     photograph [is] blood?

     A: No, I cannot.

     Prosecutor: Can it be determined what it is?


     analyzed.


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                                                   any request that was made
       by the Defense to do that?

       Trial Counsel: Objection.

       Court: Sustained.

N.T. 12/2/09, at 141.

       Again, trial counsel did not immediately move for a mistrial.

Nonetheless, after the court took a break following the presentation of

several other witnesses, counsel requested a mistrial on the grounds that

the Commonwealth was attempting to shift the burden of proof.5 Appellate

counsel included this challenge in his Pa.R.A.P. 1925(b) concise statement,

but abandoned the issue before this Court.

       Appellant now argues that this questioning infringed upon his right to

remain silent during trial, suggested that he had to test the blood evidence,

and improperly shifted the burden of proof. Discussing case law regarding

statutes that were held to have impermissibly shifted the burden of proof to

a defendant, see Commonwealth v. Butler, 760 A.2d 384 (Pa. 2000) and

____________________________________________


5
    During closing statements, trial counsel objected to a remark by the

blood], the Defendant has no burden. I have all the burden to prove him

N.T., 12/3/09, at 53. The objection was sustained and trial counsel moved
for a mistrial. Appellant does not reference this exchange or challenge
appellate counsel with respect to this portion of the trial. The trial court did
indicate that the Commonwealth was improperly attempting to shift the
burden of proof,
comment.



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Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999), Appellant posits

that it is immaterial that the questions were not answered or that the jury

was given a general instruction on the burden of proof.

     The Commonwealth counters first that the questioning was directed at




prosecutor was responding to evidence that the defendant had presented,

and not shifting the burden of proof. Furthermore, it notes that the objected

to questions were not answered or stricken and submits that Appellant has



                                    Id. at 19. Citing a string of cases, the

Commonwealth contends that a mistrial is not warranted where a witness

does not answer a question. Id. (citing Commonwealth v. Bridges, 757

A.2d 859, 879 (Pa. 2000); Commonwealth v. Tilley, 595 A.2d 575, 580

(Pa. 1991); Commonwealth v. Shotwell, 717 A.2d 1039, 1044 (Pa.Super.

1998); Commonwealth v. Fielder, 612 A.2d 1028, 1036 (Pa.Super.

1992); Commonwealth v. Hoffman, 447 A.2d 983, 986 (Pa.super. 1982);

Commonwealth v. Waters, 417 A.2d 226, 228 (Pa.Super. 1979)).

     Lastly, the Commonwealth posits that the jury was repeatedly

instructed that a defendant bears no burden of proof, was told that c

statements are not evidence, and that jurors are presumed to follow a




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there was nothing for the jury to consider.

      It is well settled that the Commonwealth bears the burden of proving

each element of the crimes charged beyond a reasonable doubt. Further, a

defendant is not required to advance any evidence in support of his defense.

In addition, the Fifth Amendment provides in relevant part that no person



U.S. Const. amend. V.     Similarly, but not identically, Article I, § 9 of the

Pennsylvania Constitution reads in pertin



the respective constitutions, to be a witness and to give evidence were

considered    synonymous    and    both   terms,   under   a   plain    meaning

interpretation, applied to more than trial testimony. See United States v.

Hubbell, 530 U.S. 27, 51 (2000) (Thomas, J., concurring). In fact, the right

prohibited compelling a person to produce incriminating physical evidence.

Id.; Boyle v. Smithman, 23 A. 397, 398 (Pa. 1892); but see Fisher v.

United States, 425 U.S. 391 (1976) (incriminating physical evidence may

be compelled).

      Appellant has failed to meaningfully develop his claim regarding

implication of his constitutional right against self-incrimination.    Thus, that

                                                                         -shifting

position does not entitle him to relief. The grant of a mistrial is an extreme


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remedy. Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013). The

trial court herein sustained cou

was not admitted.        That the trial court did not give an instruction on the



little moment where the objections did not occur in a timely fashion and it

correctly instructed the jury during its final instructions regarding the

appropriate burden of proof.6 Since the trial court did not err in declining to

declare a mistrial, appellate counsel cannot be ineffective for not arguing

that issue on appeal.

       Next, Appellant avers that trial counsel was ineffective in failing to

request    a   Kloiber

testimony       A Kloiber instruction informs the jury that an eyewitness

identification should be viewed with caution when either the witness did not

have an opportunity to view the defendant clearly, equivocated on the

identification of the defendant, or has had difficulties identifying the

                                      Commonwealth v. Sanders, 42 A.3d 325,

332 (Pa.Super. 2012).

       In the instant case, Mr. Bumpess told police on the night of the


____________________________________________


6
  Appellant does not allege that trial counsel was ineffective in failing to
request a mistrial immediately or seek a curative instruction following

reasons his actual claim falters.



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side of a car before fleeing looked like Appellant. However, when shown a

family picture that included Appellant, Mr. Bumpess identified a different

person.     In contrast, at trial, Mr. Bumpess identified Appellant, and



depicted in the family photograph. Trial counsel did not request a Kloiber

instruction.

      The trial court, nonetheless, provided the following instruction relative

to identification.

             Now, throughout the trial you hear testimony on
      identification. And in the testimony of Shakur Bumpess and
      Kimberly Bumpess, they identified the person committing the
      crimes. In evaluating the testimony[,] in addition to the other

      witnesses[,] you should consider the additional following factors.

             Did the witness have a good opportunity to observe the
      perpetrator of the offense? Was there sufficient lighting for
      them to make their observations? Were they close enough to
      the individual to note their facial and other physical
      characteristics as well as clothing at the time of the incident?
      Have they made prior identification of the Defendant as a
      perpetrator of these crimes at any of the proceedings? Was
      their identification positive or was it qualified by any hedging or
      inconsistencies? During the course of this case did the witness
      identify anyone else as the perpetrator? And in considering
      whether or not to accept the testimony of Shakur Bumpess and
      Kimberly Bumpess, you should consider the circumstances under
      which the identifications were made.

N.T., 12/3/09, at 62-63.

      Appellant argues that because Mr. Bumpess misidentified another

person in the family photograph as the assailant, and his mother did not

know Appellant well, counsel was derelict in failing to secure an instruction

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aspect of his argument, Appellant relies on Commonwealth v. Simmons,

647 A.2d 568 (Pa.Super. 1994), and Commonwealth v. McKnight, 453

A.2d 1 (Pa.Super. 1982).     In Simmons, the Commonwealth appealed the

grant of a new trial after the litigation of a post-trial motion alleging

ineffective assistance of trial counsel for not seeking a Kloiber instruction.

Over   a dissent,    the   Simmons    Court   determined    that   counsel   was

ineffective.   The pertinent facts of Simmons were that, at a preliminary

hearing, a witness testified to seeing the defendant and another individual

flee from a shed door. In contrast, at trial that witness indicated that he had

been mistaken and he saw the defendant and another man exit a side door

of the property.    An investigator for the defense testified that the witness

could not have observed someone leaving from the shed door from the area

where the witness asserted he was standing.       The Simmons Court ruled

that Kloiber was implicated because there was a question as to whether the

witness could have observed the perpetrator from his position.

       Similarly, in McKnight, this Court addressed an ineffectiveness claim

on direct appeal regarding an identification instruction.    There, three men

robbed a bar.      The only testimony implicating the defendant was from a

witness driving home from work. He testified that he saw three men exiting

the bar and remove their masks. The witness provided that he saw one man

with a shotgun, that it was broad daylight, and he saw the men from behind


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at approximately twenty feet.    We reasoned that the record demonstrated

that the witness did not have an ideal opportunity to observe the defendant

                                                            McKnight, supra

at 2.

                                                            e Commonwealth

replies that Appellant would not have been entitled to a Kloiber instruction.




observe him during h




of the Commonwealth and PCRA court, Commonwealth v. Rozplochi, 561

A.2d 25 (Pa.Super. 1989), demonstrates that a Kloiber charge was not



misidentification.   In Rozplochi, this Court discussed an ineffectiveness

                                     lure to request a Kloiber instruction.

Therein, the defendant robbed two women at the same time. The women

observed the assailant for approximately ten minutes in a twelve-by-eight-

foot area that was well lit. Each woman separately selected the defendant

from an initial photographic array, but indicated that the robber looked

older. The initial array depicted the defendant ten years earlier.




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      Police then separately provided the women with a second array on a

later date.   This array contained a photograph of the defendant taken six

months before the robbery. The women did not identify the defendant, but

did not misidentify another person. A third array was shown separately to

the women several weeks later.      Both witnesses immediately selected the

defendant.    The women testified at trial that they were positive that the

defendant was the culprit. We ruled that the failure to select the defendant

in the second photographic array did not warrant a Kloiber charge where

both women chose the defendant out of two different arrays and had ample

opportunity to observe him up close.

      We disagree that Rozplochi is controlling.     The facts of that matter

are distinguishable based on the lighting, area, and time period the

witnesses had for observation. Moreover, there was not a misidentification

and the witnesses correctly selected the defendant from two other arrays.

Nonetheless, the Commonwealth has alternatively argued that the trial court

gave an instruction that was substantially similar to a Kloiber instruction.

Thus, it reasons that Appellant cannot establish actual prejudice. We agree

with this latter assertion.

      Unlike Simmons and McKnight, the trial court in this case instructed

the jury regarding identification inconsistencies. Importantly, it directed the

jury to consider whether the witnesses had identified another person in the




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use the magic words that the jury must receive the identification evidence

                       dified Kloiber instruction adequately alerted the jury

of the potential problems with that testimony.      Moreover, Brian Dingler

identified Appellant as the attacker, as did Ms. Bumpess, and a third

                                                          s side door of the

vehicle that fled the scene. Appellant did not dispute that he was the driver

of the car, instead arguing that Mr. Dingler, the passenger, had the motive

to kill the victim.   For these reasons, Appellant cannot establish actual

prejudice.



presenting evidence and argument that another person killed the victim.

Appellant claims that because Mr. Bumpess did not identify him from the

family photograph and there was alleged blood discovered in his car on the

passenger seat where Mr. Dingler was seated, there was evidence that Mr.

Dingler committed the crime. He maintains that because Mr. Dingler was in

                                            -wife, he had motive. Appellant

relies on four cases where the trial courts disallowed evidence that another

person committed the crime: Commonwealth v. McGowan, 635 A.2d 113

(Pa. 1993), Commonwealth v. Ward, 605               A.2d 796    (Pa. 1992),

Commonwealth v. Boyle, 368 A.2d 661 (Pa. 1977), and Commonwealth

v. Rini, 427 A.2d 1385 (Pa.Super. 1981).




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      McGowan relied on Ward, Boyle, and Rini.          In McGowan, police

arrested and charged the defendant with robbing a pharmacy.                The

pharmacist and another employee identified the defendant.         At trial, the

defendant attempted to introduce evidence that he had been incorrectly

identified as the perpetrator of a series of similar robberies. The trial court

refused to allow the evidence on the grounds that it was irrelevant.      This

Court disagreed that the evidence was irrelevant but affirmed on alternative

grounds.      The Supreme Court reversed.     In doing so, it reasoned that

evidence that another person committed the crime is relevant and

admissible.     Quoting at length from Rini, it opined that evidence of a

common scheme is permitted to be shown by the Commonwealth and

applies with equal force to a defendant arguing that another individual

committed the crimes in question.

      In Ward, the Pennsylvania Supreme Court reversed a decision not to

allow a defendant to present evidence that other parties had motive to

commit the crime at issue, arson.      Specifically, the defendant wished to

show via a police officer that he had acted as an informant in prior drug

investigations and feared that these individuals might retaliate. The Ward



Boyle

convictions based on conspiratorial liability where the trial court refused to




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allow him to introduce evidence of motive on the part of two other persons

who took part in the killing.




                                                   7
transcri                                               It continues that during trial



and trial counsel introduced photographs intending to show that there was

purported blood on the passenger side of the vehicle where Mr. Dingler was

sitting.

       We find the cases relied upon by Appellant readily distinguishable.

The cases cited by Appellant are situations where evidence was excluded.

The record in this matter demonstrates that trial counsel did present

evidence in an attempt to implicate Mr. Dingler.            He also argued in his



concoct their story and were lying. Trial counsel, while not cross-examining

                              ively questioned Mr. Dingler, presented evidence

that Mr. Dingler was in the passenger seat of the car Appellant drove to the

scene, and attempted to show that there was blood where Mr. Dingler had

been seated in the car. During his closing summation, trial counsel argued

that the police conducted a poor investigation, Shakur Bumpess lied at trial
____________________________________________


7

However, it was made part of the record after the briefing in this matter.



                                          - 23 -
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and his mother was mistaken in her identification. He also remarked that



                      N.T., 12/3/09, at 21. Counsel maintained that it was

improbable that the evidence was planted.       Indeed, trial counsel argued



that Mr. Dingler had the motive to kill the victim because the victim referred



claim is without merit.



failing to interview and present the testimony of four witnesses regarding

                                                          Neglecting to call a

witness differs from failing to investigate a witness in a subtle but important

       Stewart, supra at 712. The failure to investigate

of arguable merit where the record demonstrates that counsel did not

                            Id   It can be unreasonable per se to conduct no

investigation into known witnesses.    Id. Importantly, a petitioner still must

demonstrate prejudice. Id. To demonstrate prejudice where the allegation

is the failure to interview a witness, the petitioner must show that there is a

reasonable probability that the testimony the witness would have provided

would have led to a different outcome at trial. Commonwealth v. Dennis,

950 A.2d 945, 961 (Pa. 2008).




                                    - 24 -
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       In this respect, a failure to investigate and interview a witness claim

overlaps with declining to call a witness since the petitioner must prove: (i)

the witness existed; (ii) the witness was available to testify; (iii) counsel

knew of, or should have known of, the existence of the witness; (iv) the

witness was willing to testify; and (v) the absence of the testimony was so

prejudicial    as   to   have    denied        the   defendant   a   fair   trial.   See

Commonwealth v. Dennis, 17 A.3d 297, 302 (Pa. 2011) (discussing failure

to interview and call an alibi witness).

       Appellant provided witness certifications that he drafted himself for

Philip Deluca, Eleftheria Gabranidis, Rosemarie Pander, and Charlene

Pander, in which he indicated that these witnesses would testify that Mr.

Dingler and the victim had a contentious relationship. He also set forth that

                                                          -

Georgianna Pander, instigated fights between her ex-husband and Mr.

Dingler.      PCRA counsel attached these certifications to his amended

petition.8    Appellant adds that trial counsel knew of these witnesses or

through reasonable investigation could have learned of them. According to

Appella
____________________________________________


8
  The record contains a letter from PCRA counsel in which he explains that
he did not intend to seek any affidavits from the witnesses and that none of
the individuals had contacted him. PCRA counsel therein indicated that
Appellant had waived this issue by agreeing on the record not to present
additional witnesses aside from his one character witness.         Appellant
attached this letter among others to a document he sent to the PCRA court.



                                          - 25 -
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      In addition, Appellant contends that the fact that he was colloquied on

his decision not to call any witnesses except his character witness does not

defeat his claim.   He suggests that, absent an evidentiary hearing on this

issue in which trial counsel would testify as to his trial strategy, it cannot be

determined      whether

intelligent.



affidavits is fatal to his claim and that his witness certifications were

insufficient because they were authored by himself.          In advancing this

position, it relies on Commonwealth v. McLaurin, 45 A.3d 1131

(Pa.Super. 2012), Commonwealth v. Khalil, 806 A.2d 415 (Pa.Super.

2002), Commonwealth v. Lopez, 739 A.2d 485 (Pa. 1999), and

Commonwealth v. Lark, 698 A.2d 43 (Pa. 1997).                  The PCRA court



McLaurin, although it did not provide notice of this defect in its Rule 907

notice of intent to dismiss.   See Commonwealth v. Robinson, 947 A.2d

710, 711 (Pa. 2008) (per curiam order) (opining that it was error to uphold

summary dismissal on grounds that petitioner did not include witness

certifications from trial counsel where PCRA court did not provide notice of

this defect).


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      In McLaurin, the petitioner was found guilty by a jury of indecent

assault, indecent exposure, and corruption of a minor. The trial court also

adjudicated him guilty of possession of a small amount of marijuana.          He

filed a timely PCRA petition, which the court dismissed without a hearing

after providing notice under Rule 907.        One of the issues McLaurin raised




witnesses was grounds for summary dismissal, but rejected the claim on its

merits. However, on appeal, this Court, relying on Khalil, supra, rejected

his issue based solely on the failure of the petitioner to attach affidavits from

the witnesses. Judge Strassburger filed a concurring and dissenting opinion

in which he disagreed with the affidavit rationale and reasoned that the

                       -based discussion was erroneous.       In his view, the

proper remedy was to remand the case to permit PCRA counsel to correct

the pleading defect.

      We find McLaurin is erroneous to the extent it is read to require

affidavits.   Such a reading is flatly contradicted by Commonwealth v.

Brown, 767 A.2d 576 (Pa.Super. 2001), and is in clear derogation of both

the PCRA statute and the rules of criminal procedure. McLaurin relied on

Khalil, supra, which was not a PCRA case, and involved an allegation of

ineffectiveness during direct appeal. Thus, the McLaurin

that decision is problematic where, as here, the rules of procedure and


                                     - 27 -
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statute governing PCRA matters provide that witness certifications are

sufficient.    Specifically, Pa.R.Crim.P. 902(A)(15) states that a petition



intended witness, stating the witness's name, address, and date of birth,

and the substance of the witness's testimony. Any documents material to



                                               defendant shall attach to the

petition any affidavits, records, documents, or other evidence which show



prerequisite    for   an   evidentiary   hearing.    Pa.R.Crim.P.    902(D).

Concomitantly, the statute reads,

      Where a petitioner requests an evidentiary hearing, the petition
      shall include a signed certification as to each intended witness
      stating the witness's name, address, date of birth and substance
      of testimony and shall include any documents material to that
      witness's testimony. Failure to substantially comply with the
      requirements of this paragraph shall render the proposed
      witness's testimony inadmissible.

42 Pa.C.S. § 9545(d)(1).

      Interpreting the statute and the predecessor rule to Rule 902,

Pa.R.Crim.P. 1502, the Brown Court found that a sworn affidavit is not

necessary to secure a hearing.      That court, quoting from the legislative

history of the statute, observed:

      the notes from the legislative history pertaining to the
      enactment of this statutory section indicate that the legislature
      expressly considered the question of whether a PCRA petitioner
      would be required to obtain a sworn or notarized statement from

                                    - 28 -
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     a proposed witness in order to have the witness testify at an
     evidentiary hearing. A principal architect of the 1995 Legislative
     Amendments to the PCRA, Senator Stewart Greenleaf, spoke on
     this question as follows:

              In addition, when we held the hearing there was
           concern about the fact that when you file a petition,
           we want to make sure that it is a meritorious
           petition, we do not want to have a frivolous petition,
           that there are some witnesses that would be
           available to testify, so the original bill required that
           each witness had to sign a statement and have a
           notarized, sworn statement at the end of the
           statement indicating that this was a true and correct
           representation of what he would testify to at the
           coming collateral hearing. There were objections to
           that, feeling that that was too onerous to require a
           defendant to go out and obtained notarized
           statements from all of his witnesses, some of which
           would be hostile witnesses, and I agreed with that.

               So as a result, this amendment allows a
           defendant to merely present a summary of the
           statement so we know generally what that witness is
           going to say and merely sign a certification. Either
           the witness, his attorney, the defendant's
           attorney, or the petitioner himself, the
           defendant himself can sign a certification saying
           to his best knowledge that this was an accurate
           statement of what the witness would testify to. So I
           think it is an effort, again, not to take anyone's
           rights away from him but also to help that defendant
           in the processing of his appeal and hopefully to make
           it easier for him to obtain a hearing, which we want
           him to obtain.

     Pa. Senate Journal, 1st Spec. Sess., June 13, 1995, at 217.

Brown, supra at 582-583 (Pa.Super. 2001) (emphasis added). The Brown




                                    - 29 -
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that Appellant was not required to attach sworn affidavits to his PCRA

                                                               Id. at 583.9

       As the decision in Brown based its ruling on both statutory

construction and the rules of procedure, and McLaurin is premised on a

non-PCRA case, Brown is the more sound precedent.                 Further, as

highlighted by the Brown decision,



himself is spurious. Its citation to Commonwealth v. Lopez, 739 A.2d 485

(Pa. 1999), is also misplaced as Lopez was not a PCRA case. The sole PCRA

case cited by the Commonwealth, Commonwealth v. Lark, 698 A.2d 43

(Pa. 1997), involved a PCRA petition filed prior to the November 1995

____________________________________________


9

Association was behind the draft of the 1995 PCRA amendments, Pa. Senate
Journal, 1st Spec. Sess., June 13, 1995, at 215-217, and early drafts of the
proposed legislation specifically called for affidavits. See S.B. 81, (Spec.

REQUESTS AN EVIDENTIARY HEARING, THE PETITION SHALL INCLUDE A
NOTARIZED AFFIDAVIT FROM EACH INTENDED WITNESS STATING THE
WITNESS'S NAME, ADDRESS, DATE OF BIRTH AND SUBSTANCE OF

131)                                                          he petition shall
include a notarized affidavit from each intended witness stating the witness's
name, address, date of birth and substance of testimony AND SHALL
                                                                        . This
language was changed and the
                            See S.B. 81, (Spec. Sess. No. 1), June 13, 1995

No. 147); S.B. 81, (Spec. Sess. No. 1), Oct. 30, 1995 (Printe
Nov. 17, P.L. 1118, No. 32 (Spec. Sess. No. 1), § 1, effective in 60 days.




                                          - 30 -
J-E02010-14


amendments to the PCRA statute, which included the witness certification

provision.    Therefore, when that petition was filed, the relevant portion of

the statute governing witness certifications was not in force. See Nov. 17,

P.L. 1118, No. 32 (Spec. Sess. No. 1), § 1, effective in 60 days.

       Simply put, the certification requirement can be met by an attorney or

pro se petitioner certifying what the witness will testify regarding.          See

Brown,       supra;   42    Pa.C.S.    §   9545(d)(1);   Pa.R.Crim.P.   902(A)(15).

Accordingly, we expressly overrule McLaurin insofar as it requires PCRA

petitioners to file affidavits to be entitled to an evidentiary hearing.



the sole basis of inadequate witness certifications where the PCRA court did

not provide notice of the alleged defect.                See Robinson, supra;10

Pa.R.Crim.P. 905(B). Nonetheless, Appellant is not entitled to relief on his

failure to interview or call witnesses claim for the reasons that follow.

       In Commonwealth v. Rios, 920 A.2d 790 (Pa. 2007), the Supreme

Court concluded that a claim that counsel was ineffective in failing to call

alibi witnesses lacked arguable merit where the trial court conducted a

colloquy of the defendant regarding whether he agreed with the decision not

to proffer those witnesses.           The High Court premised its decision on

____________________________________________


10
   We acknowledge that per curiam orders are not binding precedent, but
find the discussion in Robinson, persuasive. See also Commonwealth v.
Williams, 782 A.2d 571, 526-527 (Pa. 2001)



                                           - 31 -
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Commonwealth v. Paddy, 800 A.2d 294 (Pa. 2002). Therein, the Court

           As Paddy expressed the view that the decision not to call alibi

witnesses was his as well as trial counsel's, and his decision has not been

shown to have been unknowingly, involuntarily, or unintelligently made, this

                                                   Id. at 316.

     Instantly, the trial court conducted a thorough colloquy regarding

Appellan

only one character witness. We set forth part of that colloquy below.


     presenting any factual testimony in terms of what happened on
     the date that this incident is alleged to have occurred. You
     talked to your attorney about that as well?

     Defendant: Yes, sir.



     Defendant: Yes, sir.

                                               to present any evidence
     on the factual issues; is that correct?

     Defendant: Yes, sir.



     Defendant: Yes, sir.

     Court: And you had occasion to discuss all aspects of your case
     with him?

     Defendant: Yes.



     Defendant: Yes, sir.

                                    - 32 -
J-E02010-14



      Court: Any questions, Counsel?

      Prosecutor: No, thank you.

      Trial Counsel: Just briefly. Mr. Pander, His Honor asked you
      questions about your decision. Have you had a chance to talk to
      me? Do you remember asking those questions?

      Defendant: Yes, sir.

      Trial Counsel: You had a chance to talk to Mr. Henry from my
      office.

      Defendant: Yes, sir.

                                                                   with
      you today in the basement?

      Defendant: Yes, sir.

      Trial Counsel:   That was about a lot of aspects of the case,
      correct?

      Defendant: Yes, sir.

      Court: Are there any witnesses that you desire to call to testify
                                        e[d] tomorrow morning?

      Defendant: No, sir, just the character witness tomorrow.

N.T., 12/2/07, at 228-230.    Based on these representations and the Rios

and Paddy

      We are cognizant that in Commonwealth v. Nieves, 746 A.2d 1102

(Pa. 2000), a pre-Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)

direct appeal, our Supreme Court found an ineffectiveness claim warranted

relief where the defendant was colloquied as to his decision not to testify in

his own defense. There, counsel incorrectly advised the defendant that if he

                                    - 33 -
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elected to testify, evidence of certain prior convictions would be admissible.



conclusively establishes that A

not to present additional witnesses.



secure DNA testing of alleged blood evidence discovered on the inside

passenger side door of hi



blood on the passenger side of the vehicle would establish that he was



at 65. He continues that this evidence would also have called into question

the identification testimony and that it was immaterial that the alleged blood



family.

      The Commonwealth responds that Appellant has not proffered any




                                                the   alleged   blood   would   be

exculpatory is speculative.   It highlights that three eyewitnesses testified

similarly to Mr. Dingler and two of those witnesses identified Appellant, and

                                                                            car.




                                       - 34 -
J-E02010-14


     We recognize that in Commonwealth v. Williams, 899 A.2d 1060

(Pa. 1999), while discussing the reasonable basis of a claim that counsel was

ineffective in failing to secure DNA testing, the Supreme Court opined,

     It is easy to say that failing to pursue exculpatory evidence is
     ineffectiveness, but this presumes the evidence will indeed be
     exculpatory. If counsel were sure the accused's DNA would not
     be revealed in any relevant samples from the victim or scene,
     certainly testing would give exculpatory results and should be
     sought. However, the client's mere claim of innocence or alibi
     does not always settle the question; effectiveness of counsel is
     not dependent on accepting the candor of the client. Testing
     that shows the DNA matches suddenly makes a conviction-one
     that might have been avoided or less than certain-a sure thing.

            That is, subjecting a client to DNA testing is very likely to
     settle whether there will be a conviction or not. It can demolish
     the prosecution's case, but it can cast it in concrete as well. It

     alibi, or on reasonable doubt, and the less compelling the
     Commonwealth's case, the less compelling is the desire for pre-
     trial DNA testing. Not seeking testing that has the potential to
     convict a client may be a very reasonable strategy; strategy is
     not measured through hindsight against alternatives not
     pursued, so long as trial counsel had a reasonable basis for the
     decision made.

Williams, supra at 1064. The Williams

defendant requests pre-trial DNA testing, counsel should advise him such

test has the potential to strongly inculpate, not just exonerate.         If the

defendant still wishes to have the test, counsel should accede to this

           Id. at 1065. Since it was unclear in Williams why his attorney

did not seek DNA testing, the Williams Court remanded for a determination

as to whether counsel had a reasonable basis for not pursuing the testing.




                                    - 35 -
J-E02010-14


      However, in this matter, DNA testing would not have led to a

reasonable probability that the outcome of the trial would have been

different.     Here, the officer who processed the vehicle originally testified

that the blood-like stain in the passenger area was not in the vehicle when

he examined it. The alleged blood stain appeared in a photograph taken by

a defense investigator six days after police processed the car. The car was



Thus, the fact that blood was located in the vehicle after police examined it

and it was returned to its owner does not exculpate Appellant.

      Moreover, as the Commonwealth astutely points out, aside from Brian

Dingler,     whom    Appellant   claims   committed   the    crime,   two   other

eyewitnesses identified Appellant as the murderer. Equally important, both



fleeing.     Those witnesses had seen Appellant in the neighborhood on prior

occasions.       Admittedly, one   of those    witnesses    did misidentify the

perpetrator in a photograph. That witness, Mr. Bumpess, however, was not

friends with Mr. Dingler, conclusively identified Appellant at trial, and

remained steadfast that the attacker was the driver of the car that fled the

scene. A third witness could not identify Appellant, but testified to seeing



a single person identified Mr. Dingler as the person who killed the victim or




                                      - 36 -
J-E02010-14


stated that he drove the ve
                                                   11




him before entering the passenger side of the car.           Mr. Dingler then

deposited blood from the fight in the passenger area of the vehicle, which

police did not discover when examining the car, but appeared after the car

was returned to his mother. However, the evidence established that the

                                                        ellant himself concedes




prejudice, his issue fails.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2014




____________________________________________


11
    The Commonwealth asked the two eyewitnesses who identified Appellant
if they recognized Brian Dingler from that night; each stated that they did
not.



                                          - 37 -
