J-S59018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

RAHEEM JOHNSON

                         Appellant                    No. 954 EDA 2015


                Appeal from the PCRA Order March 19, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0004848-2002


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 07, 2016

      Appellant, Raheem Johnson, appeals from the order entered on March

19, 2015, dismissing his first petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

      On direct appeal, a prior panel of this Court recited the facts of this

case, as summarized by the trial court, as follows:

        Chester City police responded to a call of shots fired in the
        vicinity of 6th and Lloyd Streets on October 29, 2000 in the
        early morning hours. Upon arrival, the police observed two
        motionless bodies on the ground.         Both had gunshot
        wounds. The bodies were located close to units 1101 and
        1103 of the Dorian Court Apartments in the City of Chester.
        Paramedics arrived and observed that one of the victims
        was still breathing.      This man, Juan Perez, received
        emergency care at the scene and was transported to
        Crozer-Chester Medical Center. Juan Perez survived several
        hours before succumbing to the gunshot wound to his head.
        The second individual, Jose Perez, was declared dead at the
        scene. Two bullets were recovered, one from each of the
        victims. An expert in the field of firearms and tool mark

*Former Justice specially assigned to the Superior Court.
J-S59018-16


       examination testified that the bullets came from the same
       weapon.

       The medical examiner testified Jose Perez sustained a single
       gunshot wound to the back of his head. The gunshot wound
       was the sole cause of his death and a paramedic on the
       scene pronounced him dead at 1:21 a.m. on [October] 29,
       2000. Juan Perez sustained a single gunshot wound to the
       front of his forehead that penetrated his skull. Although
       unconscious, Juan Perez remained alive until 8 p.m. on
       October 29, 2000. The cause of death was the single
       gunshot wound to his forehead.

       Several eyewitnesses saw Appellant murder the Perez
       brothers. Craig Gibson testified that he lived in the vicinity
       of the shooting with his girlfriend. He knew both Appellant
       and the Perez brothers before this incident. He saw the
       Perez brothers, Appellant, and a few people he knew by
       nicknames as he walked toward his girlfriend’s home in the
       early morning hours of October 29, 2000. He stopped to
       watch the young men engage in ‘play fighting.’ Next, he
       saw Appellant point a gun at Juan Perez’s head and fire a
       single gunshot into the front of his head. Juan Perez fell to
       the ground. Jose Perez went to the ground and hugged his
       brother and pleaded with Appellant for his brother’s life
       saying, ‘Please don’t shoot my brother.           He’s drunk.’
       Appellant fired a second shot, this time at Jose. Gibson
       testified that after the second shot was fired, Jose landed on
       top of his brother. The police found the brothers in this
       position when they arrived a few minutes later. Gibson told
       the jury that he witnessed Appellant run from the area after
       the shooting took place.

       Shante Powell testified on behalf of the Commonwealth.
       She had known Appellant for seven or eight years before
       the killings and she witnessed the events of October 29,
       2000. During the evening of October 28, 2000, Powell was
       visiting with friends in the Dorian Court Apartments.
       Sometime after midnight, she heard people arguing outside
       the apartment and looked out the window to investigate the
       disturbance. She saw Appellant, two individuals she knew
       by nicknames and the Perez brothers. Juan Perez was on
       the ground and Appellant stood over him and ‘was just
       hollering at him.’ She could not distinguish the words

                                   -2-
J-S59018-16


       uttered by Appellant, but she saw him point a gun at Juan
       and fire a single shot. . . . After watching Appellant shoot
       Juan, Powell moved away from the window and sat on the
       couch. Five or ten seconds after hearing the first gunshot,
       she heard a second gunshot. Next, she heard a car drive
       away and then looked outside and saw the motionless
       bodies of the Perez brothers. Jose Perez had his arm
       around his brother Juan. A few seconds later, the doorbell
       to the apartment rang and Appellant entered the apartment
       and began to change his clothes. Powell observed blood on
       Appellant’s clothes and saw him wipe the clothes with
       bleach and put them in a bag. Appellant stayed in the
       apartment until six o’clock in the morning on the 29 th and
       he left the apartment with his clothes in the bag.

       Brian Doukas testified on behalf of the Commonwealth and
       told the jury that he spoke to Appellant in August or
       September 2002 while they were inmates at Chester County
       Prison. Appellant admitted to Doukas that he murdered two
       brothers with a gun near an apartment building. Appellant
       made the admission shortly after his arraignment on the
       murder charges. When he returned to the Chester County
       Prison, he asked Doukas if he knew of a good criminal
       defense attorney, one who handles homicide cases. This
       inquiry led to a discussion about the facts of the homicides.
       Appellant told Doukas about a confrontation involving the
       victims and some friends which occurred earlier in the
       evening of the murders. Later that evening[,] Appellant
       admitted that he shot one of the brothers involved in the
       confrontation and then shot the second brother because he
       was a witness. When asked to explain the reason for the
       shooting, Appellant explained that ‘nobody messed with him
       and his crew or him and his, his boys.’ Appellant also
       admitted that after the shooting, he left the scene and
       police never recovered the gun.

                          *        *           *

       The day after the murders, Appellant met with his girlfriend
       Crystal Horsey, and admitted to her that he killed the Perez
       brothers because they ‘underestimated him.’




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J-S59018-16



Commonwealth v. Johnson, 919 A.2d 972 (Pa. Super. 2007) (unpublished

memorandum) at 3-5, citing Trial Court Opinion, 6/19/2006, at 2-5.

       On October 1, 2004, a jury convicted Appellant of two counts each of

first-degree murder, aggravated assault, and recklessly endangering another

person (REAP) and one count of possession of an instrument of crime (PIC).1

The jury was unable to reach a unanimous decision regarding Appellant’s

sentence.      As a result, the trial court imposed consecutive terms of

life-imprisonment for the murder convictions. The trial court also imposed a

consecutive term of one to five years’ incarceration for PIC, but no additional

penalty for the aggravated assault and REAP convictions.            On January 17,

2007, this Court affirmed Appellant’s judgment of sentence. Id. On August

10, 2007, our Supreme Court denied further review.             Commonwealth v.

Johnson, 929 A.2d 644 (Pa. 2007).

       On January 28, 2008, Appellant filed a timely pro se PCRA petition.

The PCRA court appointed counsel for Appellant.                Counsel sought to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

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

On January 20, 2009, the PCRA court denied appointed counsel’s petition to

withdraw and directed him to file an amended PCRA petition.               Counsel,

however,     filed   a   second     Turner/Finley   petition   to   withdraw   from


____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 2702, 2705, and 907, respectively.



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J-S59018-16



representation.     By order entered on December 29, 2009, the PCRA court

dismissed Appellant’s PCRA petition. Thereafter, Appellant filed a timely pro

se notice of appeal. On June 11, 2013, this Court vacated the PCRA court’s

order denying relief and remanded the case for further proceedings.

Appellant obtained new PCRA counsel and she subsequently filed an

amended PCRA petition on Appellant’s behalf.       On October 10, 2014, the

PCRA court held an evidentiary hearing on the amended PCRA petition. On

March 19, 2015, the PCRA court denied Appellant relief. This timely pro se

appeal resulted.2

       On appeal, Appellant raises the following pro se issues for our review:

         I.     The Commonwealth violated Appellant’s Fifth, Sixth,
                and Fourteenth Amendment right[s] by intentionally
                failing to    disclose the   existence     of   an
                arrangement/agreement    made     to    [a]    key
____________________________________________


2
    On April 1, 2015, Appellant filed a timely pro se notice of appeal despite
his continued representation by counsel. The PCRA court ordered Appellant
to file a concise statement pursuant to Pa.R.A.P. 1925(b).          Appellant
complied timely pro se. The PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on July 15, 2015. Thereafter, by per curiam order
entered on August 27, 2015, this Court directed the PCRA court to conduct
an on-the-record determination as to whether Appellant wished to proceed
pro se and whether Appellant's waiver of counsel was knowing, intelligent
and voluntary pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998). On October 2, 2015, following a hearing, the PCRA court entered an
order permitting PCRA counsel to withdraw and allowing Appellant to
represent himself and proceed pro se. We may now address Appellant’s
claims. See Commonwealth v. Figueroa, 29 A.3d 1177, 1183 (Pa. Super.
2011) (following a remand for a Grazier hearing, if an appellant waives his
right to counsel before both the PCRA court and this Court, we may address
the merits of Appellant's remaining PCRA claims).




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               Commonwealth witness        in  exchange     for      his
               cooperation and testimony inculpating Appellant.

        II.    Appellant was denied his right[s] under Article 1 § 9
               of the Constitution of the Commonwealth of
               Pennsylvania and the Sixth Amendment to the
               Constitution of the United States of America to
               effective assistance of counsel in that counsel: (a)
               failed to object to the prosecutor speaking on facts
               outside of the record and suggesting he [knew]
               something the jury [did not] and (b) failed to object
               to the prosecutor’s improper and prejudicial closing
               argument.

        III.   Appellant was denied his right[s] under Article 1 § 9
               of the Constitution of the Commonwealth of
               Pennsylvania and the Sixth Amendment to the
               Constitution of the United States of America to
               effective assistance of counsel in that counsel failed to
               obtain and use available evidence to impeach key
               Commonwealth witnesses.

        IV.    Appellant was denied his right[s] under Article 1 § 9
               of the Constitution of the Commonwealth of
               Pennsylvania and the Sixth Amendment to the
               Constitution of the United States of America to
               effective assistance of counsel in that trial and
               [appellate] counsel failed to properly preserve and
               raise a meritorious [appellate challenge to] the trial
               court[’s abuse of discretion] in failing to grant
               Appellant a 24[-]hour continuance to retain private
               counsel of [Appellant’s] choice.

Appellant’s Brief at 3 (complete capitalization omitted).

      Our standard of review over the denial of a PCRA petition is

well-settled. “As a general proposition, we review a denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79,

86–87 (Pa. Super. 2016) (citation and brackets omitted). “A PCRA court's


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J-S59018-16



credibility findings are to be accorded great deference, and where supported

by the record, such determinations are binding on a reviewing court. Id.

      In his first issue presented, Appellant contends the Commonwealth

failed to disclose a deal it had with Craig Gibson, wherein Gibson agreed to

testify for the Commonwealth against Appellant in exchange for favorable

sentencing treatment in five open cases (for narcotics delivery and simple

assault) that were pending against Gibson at the time of Appellant’s trial.

Id. at 12-13. Appellant avers Gibson was facing a maximum of 34 years of

incarceration, but only received a county sentence of less than one year of

imprisonment. Id. at 14. Accordingly, Appellant argues the Commonwealth

violated Brady v. Maryland, 373 U.S. 83 (1963) “by intentionally

suppressing the existence, nature and scope of the deal [Gibson] received.”

Id. at 7. At the PCRA evidentiary hearing, Appellant presented the notes of

testimony from Gibson’s sentencing hearing.              From those notes of

testimony, Appellant relies on the prosecutor’s statements that Gibson “lived

up to his arrangement with the Commonwealth” and “urg[ed]” the

sentencing   judge   to   give   “consideration”   for   Gibson’s   testimony   in

Appellant’s case as “a pivotal factor[.]”     Id. at 14, citing N.T. Gibson’s

Sentencing Hearing, 10/12/2004, at 10-12.          Appellant asserts that “[i]f

there was in fact no [a]rrangement as the [PCRA] court concluded, [t]hen it

was impossible for Gibson to have lived up to the something that didn’t

exist.” Id. at 15.

      Our Supreme Court previously determined:

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J-S59018-16


       Under Brady, the prosecution's failure to divulge
       exculpatory evidence is a violation of a defendant's
       Fourteenth Amendment due process rights. “[T]o establish a
       Brady violation, a defendant is required to demonstrate
       that exculpatory or impeaching evidence, favorable to the
       defense, was suppressed by the prosecution, to the
       prejudice of the defendant.” Commonwealth v. Gibson,
       951 A.2d 1110, 1126 (Pa. 2008).

       The burden of proof is on the defendant to demonstrate that
       the Commonwealth withheld or suppressed evidence. The
       United States Supreme Court has held, “[T]he prosecutor is
       not required to deliver his entire file to defense counsel, but
       only to disclose evidence favorable to the accused that, if
       suppressed, would deprive the defendant of a fair trial.”
       United States v. Bagley, 473 U.S. 667, 675 (1985)
       (footnote omitted).

                          *         *           *

       “To satisfy the prejudice inquiry, the evidence suppressed
       must have been material to guilt or punishment.” Gibson,
       951 A.2d at 1126–1127. […M]ateriality extends to evidence
       affecting the credibility of witnesses, rather than merely to
       purely exculpatory evidence. See Giglio v. United States,
       405 U.S. 150, (1972) (“When the ‘reliability of a given
       witness may well be determinative of guilt or innocence,’
       nondisclosure of evidence affecting credibility falls within
       this general rule.”). Moreover, [our Supreme Court has]
       held that the protection of Brady extends to the
       defendant's ability to investigate alternate defense theories
       and to formulate trial strategy. See Commonwealth v.
       Green, 640 A.2d 1242, 1245 (Pa. 1994) (holding that
       courts must “consider any adverse effect that the
       prosecutor's failure to disclose might have had on not only
       the presentation of the defense at trial, but the preparation
       of the defense as well.”). “[F]avorable evidence is material,
       and constitutional error results from its suppression by the
       government, if there is a reasonable probability that, had
       the evidence been disclosed to the defense, the result of the
       proceeding would have been different.” Kyles v. Whitley,
       514 U.S. 419, (1995) (internal quotation marks omitted).




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J-S59018-16


        As to Brady claims advanced under the PCRA, a defendant
        must demonstrate that the alleged Brady violation “so
        undermined the truth-determining process that no reliable
        adjudication of guilt or innocence could have taken place.”
        See Commonwealth v. Copenhefer, 719 A.2d 242, 259
        (Pa. 1998). […T]he United States Supreme Court has held
        that “[t]he mere possibility that an item of undisclosed
        information might have helped the defense, or might have
        affected the outcome of the trial, does not establish
        ‘materiality’ in the constitutional sense.” United States v.
        Agurs, 427 U.S. 97, 109–110 (1976).

Commonwealth v. Cam Ly, 980 A.2d 61, 75–76 (Pa. 2009).

     At the PCRA hearing, Appellant conceded that defense counsel told

Appellant of a deal between the Commonwealth and Gibson for Gibson’s trial

testimony against Appellant.   N.T., 10/10/2014, at 70.   Appellant testified

that defense counsel did not give him specifics of that deal.      Id.   Trial

counsel for Appellant testified that he had only one conversation with the

Commonwealth wherein the prosecutor agreed that he “would advise [the

sentencing judge] of Mr. Gibson’s cooperation [] during [Appellant’s] trial.”

Id. at 9.   At Appellant’s trial, Gibson testified that the prosecutor would

appear on his behalf at his sentencing hearing to tell the sentencing judge

about his cooperation in Appellant’s trial.    N.T., 9/28/2004, at 56-57.

However, Gibson also testified that there were no promises regarding the

actual sentence to be imposed upon him and, ultimately, his sentencing

judge would decide upon a term of imprisonment. N.T., 9/27/2004, at 211.

The Commonwealth, in its closing argument, stated that it would tell the

sentencing judge in Gibson’s cases that he was cooperative, but that the




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ultimate sentence Gibson was to receive was to be decided by the judge.

N.T., 9/30/2004, at 39.

      Upon review of the notes of testimony from Gibson’s sentencing

hearing, the prosecutor stated, in full:

        Thank you, Your Honor. Your Honor, I just finished a
        prosecution of the case of Commonwealth v. [R]aheem
        Johnson, at 4848 of ’02. This was a double homicide
        occurring in October of 2000. It actually took two years for
        detectives involved to amass sufficient evidence to make an
        arrest. The defendant in that case, Your Honor, was quite a
        formidable, I’ll say had quite the reputation in Chester. And
        it wasn’t actually until he was arrested on an unrelated
        case, did the case actually break. The case broke, in part,
        and substantially in part, because of a statement given by
        [] Mr. Gibson. He was cooperative at that time, for I’ll say
        consideration that a period he was entitled to. But certainly
        disproportionate to the risk that he put himself at by virtue
        of his statement and his cooperation with the
        Commonwealth back in September of 2002. As a result of
        that statement and another statement the Commonwealth
        received – in fact, we received numerous statements once
        the defendant in that case was incarcerated on other
        charges. Mr. Gibson came forward, other people came
        forward, an arrest was eventually made. But when the case
        came to trial, Your Honor, we had three witnesses who were
        present at the scene who were going to testify. One of the
        witnesses was actually under a material witness warrant.
        He was on bail, and we expected him to appear at trial
        because he was on a monthly status call, and he appeared
        with his attorney each month. However at the time of trial,
        he was a failure to appear. There is a warrant outstanding
        for him at the present time. I intend to prosecute him, or
        at least get, get him on a contempt action when he’s
        eventually    arrested.       But    Mr.   Gibson,    in  the
        Commonwealth’s opinion not only lived up to his
        arrangement with the Commonwealth to testify, and testify
        truthfully. But he was not intimidated at the time of trial
        b[y] people who came into the courtroom. And at one point
        the courtroom had a substantial number of people, friends


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J-S59018-16


        of [Appellant]. Who I found to be there for one purpose,
        and one purpose only, and that was to intimidate [Mr.
        Gibson]. Because after he testified, they left. He wasn’t
        intimidated. He was – he held true to his statement. And,
        for that reason, Your Honor, the Commonwealth is
        suggesting to the [c]ourt that he was a pivotal factor in that
        prosecution, and he should [get] consideration for that.
        And we would urge you to do so, Your Honor. Thank you.

N.T., 10/12/2004, at 10-11 (original brackets omitted).

      We conclude there is no merit to Appellant’s first claim. At Appellant’s

trial, Gibson testified that the Commonwealth agreed to tell Gibson’s

sentencing court about his cooperation in this matter, but would not

recommend a specific sentence. Thereafter, at Gibson’s sentencing hearing,

the   prosecutor   told    the   judge    that   Gibson   cooperated   with   the

Commonwealth in Appellant’s case, highlighting the adversity Gibson faced

in doing so, and asked the judge to consider that factor when imposing

Gibson’s sentence. The Commonwealth, however, did not suggest a specific

sentence. The Commonwealth did not recommend a mitigated or reduced

sentence for Gibson.      Appellant conceded that he knew Gibson agreed to

testify for the Commonwealth prior to trial and that Gibson’s potential for

bias was placed before the jury.         Hence, there is no indication that the

Commonwealth suppressed any evidence.            Thus, Appellant has not shown

that the truth-determining process was undermined or that no reliable




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J-S59018-16



adjudication of guilt or innocence could have taken place. Accordingly, there

is no merit to Appellant’s first claim.3

       Appellant’s next three claims allege that trial counsel was ineffective.

We review ineffective assistance of counsel claims under the following

standard:

         We begin with the presumption that counsel rendered
         effective assistance. To obtain relief on a claim of ineffective
         assistance of counsel, a petitioner must rebut that
         presumption and demonstrate that counsel's performance
         was deficient, and that such performance prejudiced him.

                                *          *       *

         Specifically, a petitioner must show: (1) the underlying
         claim is of arguable merit; (2) no reasonable basis existed
         for counsel's action or inaction; and (3) counsel's error
         caused prejudice such that there is a reasonable probability
         that the result of the proceeding would have been different
         absent such error.

         A claim of ineffectiveness will be denied if the defendant's
         evidence fails to meet any one of these prongs.


____________________________________________


3
    To the extent that Appellant argues that Gibson’s sentencing hearing
transcripts constitute newly discovered evidence under the PCRA, he is not
entitled to relief on that basis either. A petitioner may be eligible for PCRA
relief if he pleads and proves that his conviction or sentence resulted from
“[t]he unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the outcome of the
trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). Here,
however, Gibson received a sentence wholly consistent with the agreement
offered by the Commonwealth. Thus, the notes from Gibson’s sentencing
hearing do not prove there was previously unavailable, exculpatory evidence
that would have changed the outcome of Appellant’s trial.



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Commonwealth v. Oliver, 128 A.3d 1275, 1284 (Pa. Super. 2015)

(internal citations and quotations omitted).

       In his second issue presented, Appellant claims trial counsel failed to

object to the prosecutor’s closing argument when the Commonwealth

alluded to facts outside of the record and personally vouched for the truthful

character of the Commonwealth’s witnesses.          Appellant’s Brief at 18-24.

More specifically, Appellant claims the prosecutor “suggested that the

witnesses wouldn’t risk testifying unless it was the truth” and submitted that

Appellant caused fear among the witnesses.               Id. at 18-19.      In turn,

Appellant avers there was no trial evidence to support the PCRA court’s

determination that “[t]he violent and hardened lifestyle that came along with

living in the witnesses’ community was established during trial as a part of

the record.”    Id. at 19, citing PCRA Court Opinion, 7/15/2015, at 7.

Appellant also claims the prosecutor “spoke on facts outside the record,”

when    the   Commonwealth     stated,   in   closing,    that   although   Doukas’

recollection of the date on which his conversation with Appellant in prison

took place “was wrong by a month,” Doukas “wasn’t wrong about the

conversation.” Id. at 20.

       This Court has previously determined:

         It is well[-]settled that a prosecutor has considerable
         latitude during closing arguments and his arguments are
         fair if they are supported by the evidence or use inferences
         that can reasonably be derived from the evidence. Further,
         prosecutorial misconduct does not take place unless the
         unavoidable effect of the comments at issue was to

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J-S59018-16


        prejudice the jurors by forming in their minds a fixed bias
        and hostility toward the defendant, thus impeding their
        ability to weigh the evidence objectively and render a true
        verdict.

        In determining whether the prosecutor engaged in
        misconduct, we must keep in mind that comments made by
        a prosecutor must be examined within the context of
        defense counsel's conduct. It is well[-]settled that the
        prosecutor may fairly respond to points made in the defense
        closing. Moreover, prosecutorial misconduct will not be
        found where comments were based on the evidence or
        proper inferences therefrom or were only oratorical flair.

                           *         *              *

        It is settled that it is improper for a prosecutor to express a
        personal belief as to the credibility of the defendant or other
        witnesses. However, the prosecutor may comment on the
        credibility of witnesses. Further, a prosecutor is allowed to
        respond to defense arguments with logical force and vigor.
        If defense counsel has attacked the credibility of witnesses
        in closing, the prosecutor may present argument addressing
        the witnesses' credibility.

Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009) (internal

citations and quotations omitted).

     Upon review of the notes of testimony from trial, we conclude that the

prosecutor’s comments were       fair    response    to   trial   counsel’s closing

argument. During closing argument, defense counsel attacked the credibility

of the Commonwealth’s witnesses. See generally N.T., 9/30/2004, at 17-

28; see also id., at 28 (“[D]id the demeanor of Crystal Horzee, Brian

Doukas, Craig Gibson, and Shante Powell, did that instill a whole lot of

confidence within you that they were being truthful during the course of this

trial? I suggest not, ladies and gentlemen.”).      Additionally, at trial, counsel

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J-S59018-16


for Appellant questioned Doukas at length regarding the timing of the prison

conversation between the two men, suggesting they were either not

imprisoned at the same time or housed in different, secured sections of the

prison. Defense counsel highlighted this again during closing argument. Id.

at 25-26.   In response, the Commonwealth gave record-supported reasons

to rebut these assertions.       We agree with the PCRA court that the

Commonwealth did not engage in prosecutorial misconduct.            Accordingly,

there is no merit to Appellant’s claim that trial counsel was ineffective for

failing to object to the Commonwealth’s closing remarks.

      In his third allegation, Appellant claims trial counsel was ineffective for

failing to obtain evidence to impeach Gibson, Doukas, and Powell. We will

examine the argument regarding each witness individually.

      First, we examine Appellant’s ineffective assistance of counsel claim in

relation to Gibson. At trial, Gibson claimed he saw Appellant every day for a

year and one-half starting in 1998.        Appellant’s Brief at 24.    Appellant

argues “[a s]entence status sheet from the [D]epartment of [C]orrections

[…] proves Appellant turned himself into custody” during that time period.

Id.   “Thus, an investigation would have disclosed that it was impossible for

Gibson to have seen Appellant every day for a year and [one-]half before

the murders which would have directly contradicted Gibson’s testimony[.]”

Id. at 25 (internal quotations omitted).

      The PCRA court determined:


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        Gibson’s answer was meant to reflect that he knew
        [Appellant] and frequently saw [Appellant] in their
        neighborhood. This does not take away from the credibility
        of the witness. These matters are inconsequential to the
        outcome of this case, and are therefore, meritless claims of
        ineffective assistance of counsel.

PCRA Court Opinion, 7/15/2015, at 8.         Upon review, we agree.    Defense

counsel questioned Gibson at length about his relationship with Appellant in

connection with whether Gibson could identify Appellant.         Gibson also

testified that he knew Appellant, from growing up in Chester, for “[t]en, 12

years, 13 maybe.” N.T., 9/27/2004, at 189. Appellant has not plead and

proven that the outcome of his trial would have been different had trial

counsel impeached Gibson with evidence of Appellant’s incarceration in the

years preceding the murders.

     Next, we examine Appellant’s claim that counsel was ineffective for

failing to impeach Doukas. Appellant argues “[t]he alleged admission [to

Doukas] was made immediately after Appellant returned to prison on

September 13, 2002, after being arraigned on murder charges.” Appellant’s

Brief at 26. Appellant claims he introduced evidence of the physical layout

of the prison that “[p]roved it was impossible for Appellant and Doukas to

have had physical access to each other on the day Doukas very firmly and

specifically testified the alleged admission [was] made.” Id.

     At trial, Doukas testified “he was pretty sure” he had a conversation

with Appellant in prison on “either August 9 or August 10” 2002.         N.T.,

9/28/2004, at 340, 346. Martin Bennethum, the legal records supervisor at

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Chester County Prison, testified that Appellant was not incarcerated at that

prison until August 27, 2002, making it impossible for the two men to have

had a conversation in early August 2002.         N.T., 9/29/2004, at 69-71.

Doukas, however, also testified that the conversation took place on the “day

[Appellant was] arraigned on double homicide charges.”        Id. at 322.    The

parties stipulated that Appellant was arraigned on September 13, 2002.

N.T., 10/10/2014, at 18. Both men were housed in the same prison block

(H-block) from August 29, 2002 until September 10, 2002.                    N.T.,

9/29/2004, at 70.     They were also in the same cellblock (K-block) from

October 15, 2002 until November 4, 2002. Id. at 74. At the PCRA hearing,

trial counsel testified that his strategy was to impeach Doukas based upon

his inconsistencies in giving different dates on which the conversation may

have taken place.     N.T., 10/10/2014, at 20-21.        Trial counsel further

testified that Appellant told him it would be difficult, but not impossible, for

the two men to have had a conversation when they were in different

cellblocks. Id. A prison official confirmed this fact. Id. at 103. Because

the conversation could have taken place when the men were in different

cellblocks, counsel confined his efforts to impeach Doukas by highlighting

the inconsistencies in his testimony, including Doukas’ belief that the

conversation took place on September 13, 2002. Id. at 28-32.

      The PCRA court determined that trial counsel impeached Doukas by

showing the conversation could not have taken place in August 2002,


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because Appellant had not yet been incarcerated in Chester County. PCRA

Court Opinion, 7/15/2015, at 8-9.              We agree.        Moreover, at trial, trial

counsel questioned Doukas regarding his extensive criminal history in an

attempt to impeach his credibility. N.T., 9/28/2004, at 333-337. We have

previously determined that counsel cannot be deemed ineffective for failing

to impeach a witness in a particular way, where counsel has impeached the

witness by other means. See Commonwealth v. Solano, 129 A.3d 1156,

1175 (Pa. 2015) (trial counsel did not provide ineffective assistance by

failing to impeach witnesses with evidence of certain prior convictions where

counsel     attempted      to     impeach      witnesses        by    other    means    on

cross-examination and the Commonwealth had already brought to the jury's

attention   that   those        witnesses    had     criminal    histories);   see     also

Commonwealth v. Dennis, 715 A.2d 404, 408–409 (Pa. 1998) (holding

counsel not ineffective for failing to impeach witness in one particular way,

where counsel impeached witness in other ways).                      Hence, we deem this

aspect of Appellant’s third claim meritless.

      Next, Appellant claims trial counsel was ineffective for failing to

impeach Powell.     Appellant claims Powell was “a vengeful ex-girlfriend”

despite Powell’s testimony at trial “that her mother and Appellant’s mother

held [themselves] out to be cousins.” Appellant’s Brief at 31-32. Appellant

claims counsel was ineffective for failing to question Powell about their

relationship because she had a bias to lie about Appellant at trial. Id.


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      Upon review of the trial transcript, Powell testified that her mother

and Appellant’s mother claimed they were cousins. N.T., 9/28/2004, at 172.

However, when asked, “Do you know that? What level of cousin?[,]” Powell

responded, “No.”    Id.   The PCRA court determined these statements were

“not meant to assert that the witness and [Appellant] were actually cousins,

but Ms. Powell had known [Appellant] for a number of years and was able to

identify him on sight.” PCRA Court Opinion, 7/15/2015, at 7-8. The PCRA

court further concluded that “Powell’s credibility with the jury would not

have been affected by whether or not she was actually related to

[Appellant].” Id. at 8. We agree. See Commonwealth v. Copenhefer,

719 A.2d 242, 254 (Pa. 1998)(a petitioner fails to demonstrate that counsel

was unreasonable for declining to pursue a minor inconsistency or that he

was prejudiced thereby).      Moreover, defense counsel questioned Powell

extensively about the timing of her statement to police. She denied being

present until two years after the murders and made a statement to police

only after her arrest for assault and other related charges. N.T., 9/28/2004,

at 248-251.    Defense counsel also questioned Powell about her criminal

record.   Hence, for these additional reasons, counsel cannot be deemed

ineffective because he sought to impeach Powell by other means.            See

Solano and Dennis, supra. Accordingly, based on the foregoing reasons,

Appellant’s third claim asserting trial counsel’s ineffectiveness for failing to

impeach Gibson, Doukas, and Powell must fail.


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     Finally, Appellant claims ineffective assistance of counsel for failing to

argue on direct appeal that the trial court abused its discretion when it

denied Appellant’s request for a continuance.        Appellant’s Brief at 35.   He

claims the continuance was necessary “to permit Appellant, who had just

unexpectedly obtained funds from family members, to retain private

counsel,     after   Appellant   [continually]   complained   about     [appointed]

counsel[’s] representation.” Id.

     We previously determined:

           It is clear that a person charged with a crime has a
           constitutional right to the assistance of counsel which
           includes the right to a reasonable opportunity to obtain
           counsel of his or her own choice. That right, however, is
           not absolute. As we stated []:

              The desirability of permitting a defendant additional
              time to obtain private counsel of his choice must be
              weighed against the public need for the efficient and
              effective administration of justice. The matter of
              continuance is traditionally one within the discretion
              of the trial judge, and no prophylactic rule exists for
              determining when a denial of a continuance amounts
              to a violation of due process. Each case must be
              decided by balancing the competing interests, giving
              due regard to the facts presented. It is not every
              denial of a request for more time that violates due
              process even if the party fails to offer evidence or is
              compelled to defend without counsel. Contrariwise, a
              myopic insistence upon expeditiousness in the face
              of a justifiable request for delay can render the right
              to defend with counsel an empty formality. There are
              no mechanical tests for deciding when a denial of a
              continuance is so arbitrary as to violate due process.
              The answer must be found in the circumstances
              present in every case, particularly in the reasons
              presented to the trial judge at the time the request is
              denied.

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Commonwealth v. Boettcher, 459 A.2d 806, 809–810 (Pa. Super. 1983)

(internal citations, quotations, and original brackets omitted) (finding no

abuse of discretion where defendant had been represented by the same

public defender since arrest and had never indicated that she wished to

retain private counsel until the date of trial and where defendant never

claimed to be dissatisfied with the public defender's representation). “[T]his

Court has repeatedly condemned the practice of waiting until the day of trial

to request a continuance for the purpose of obtaining a new attorney.”

Commonwealth v. Antidormi, 84 A.3d 736, 746 (Pa. Super. 2014)

(internal quotations omitted), citing Boettcher, 459 A.2d at 810.

      In this case, the PCRA court determined Appellant “waited until the

day of trial [...] to request a continuance to obtain private counsel[.]” PCRA

Court Opinion, 7/15/2015, at 9. It further concluded that trial counsel was

prepared for trial and Appellant was satisfied with his court-appointed

representation.   Id.   Moreover, Appellant at one point suggested that

appointed-counsel could serve as his private counsel. Id. Upon review, we

agree that a continuance was properly denied. Appellant recognized that a

private attorney was not going to be ready to commence trial.            N.T.,

9/14/2004, at 6. Appellant did not fault appointed counsel’s representation,

but felt he “would be more comfortable coming into trial with a paid lawyer

that’s working on my behalf and [knowing] my family’s paying for it.” Id. at

7.   Appointed counsel also testified that despite their differences in trial

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strategy, counsel explained to Appellant “ultimately it [wa]s his decision” on

how they proceeded.       Id.    Here, the trial court weighed the competing

interests between obtaining counsel of Appellant’s choice and judicial delay.

We   discern   no   abuse   of    discretion   and,   therefore,   no   derivative

ineffectiveness claim. Appellant’s last claim lacks merit.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2016




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