J-S46043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAMES BRYANT.                            :
                                          :
                    Appellant.            :   No. 1894 EDA 2017


                Appeal from the PCRA Order, June 1, 2017,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division at No(s): CP-51-CR-0013822-2011.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED OCTOBER 26, 2018

      James Bryant appeals pro se from the order denying his first petition for

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

9541-9546. We affirm.

      The PCRA court, which acted as the fact-finder during Bryant’s bench
trial, summarized the pertinent facts as follows:

             At approximately 12:00 AM on the evening of July 2,
         2011, [Bryant] and his fiancée, Meatha Saunders
         (Saunders), returned to Saunders’ home on 67th Street in
         southwest Philadelphia. The couple found that the front
         door had been left open, and the lights had been left on.
         Saunders’ son, Will Myatt (Myatt), was asleep on the couch
         in the living room. [Bryant] woke Myatt and confronted him.
         A physical altercation ensued; Myatt and [Bryant] wrestled
         for several minutes until two of Myatt’s friends – Dion
         Bennett (decedent) and Meron Ayele (Ayele) – overheard
         the two men fighting, entered the house, and separated
         Myatt and [Bryant]. Ayele recalled that he was not strong
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       enough to stop the fight by himself, so Bennett came to his
       aid, separating Myatt and [Bryant] from one another.

          After being pulled away from Myatt by decedent,
       [Bryant] exited Saunders’ home through the back door.
       Decedent, Myatt, and Ayele exited through the front door
       onto 67th Street. A few minutes later, [Bryant] emerged
       from the alleyway on the side of Saunders’ home; once on
       67th Street, [Bryant] instigated a verbal spat with decedent.
       Initially, decedent responded, “We all grown out here.
       Everybody should just go home and talk about it tomorrow.”
       When [Bryant] chose not to leave, decedent stated, “Fuck it
       old head. I’ll just fight you myself.” [Bryant] told decedent,
       “We can just take this on the next block.”

          [Bryant] got into his car and drove to Bonaffon Street.
       He drove against traffic and parked the wrong way on
       Bonaffon Street, adjacent to a breezeway between the 6700
       blocks of Bonaffon Street and South 67th Street. [Bryant’s]
       car could be seen across the breezeway from where
       decedent, Myatt, Ayele, and Atakelete Seleshi (Seleshi),
       another friend of Myatt’s, were standing on 67th Street.
       [Bryant] started “calling people out,” from inside his car.
       Specifically, [Bryant] called out to decedent in a loud voice
       from his car, and invited decedent to cross the breezeway
       and meet him on Bonaffon Street. According to Ayele, at
       the time [Bryant] started calling people out, decedent
       appeared upset, but was “just standing” calmly on 67th
       Street. Decedent then obliged and walked across the
       breezeway towards the driver’s side of [Bryant’s] car. While
       standing outside the car, decedent punched [Bryant]
       through the open driver’s side window. [Bryant] then fired
       a .22 caliber gun, striking decedent in the chest. At the time
       of the shooting, [Bryant] was the sole occupant of the car,
       which was still running. [Bryant] then returned to 67 th
       Street in his car, “said something to somebody outside,” and
       then “pulled off.”

          Immediately following the gunshot, Ayele and Seleshi
       saw decedent fleeing from [Bryant’s] car.        Decedent
       staggered into the breezeway and collapsed in Ayele’s arms.
       Ayele and Seleshi carried decedent to decedent’s car and
       transported him to the Hospital of the University of
       Pennsylvania, where he was pronounced dead shortly after
       arrival.

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PCRA Court Opinion, 12/5/17, 2-4 (citations and footnote omitted).

      At the conclusion of his bench trial, the trial court convicted Bryant of

third-degree murder and related charges. On October 10, 2012, the trial court

sentenced him to an aggregate term of 19 ½ to 41 years in prison. Following

the denial of post-sentence motions, Bryant filed a timely appeal to this Court.

On   May    8,   2014,   we    affirmed   Bryant’s   judgment     of   sentence.

Commonwealth v. Bryant, 104 A.3d 41 (Pa. Super. 2014). Bryant did not

seek further review.

      On September 11, 2014, Bryant filed a timely pro se PCRA petition, and,

on October 4, 2016, a supplemental PCRA petition. The PCRA court appointed

counsel. On January 12, 2017, PCRA counsel filed a “no-merit” letter and a

motion 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), based upon PCRA counsel’s conclusion that Bryant’s petition was

without merit.   On April 3, 2017, the PCRA court issued Pa.R.Crim.P. 907

notice of intent to dismiss the petition without a hearing. Bryant filed a pro

se response. By order enter May 19, 2017, the PCRA court dismissed Bryant’s

petition, and granted PCRA counsel’s motion to withdraw. This appeal follows.

Both Bryant and the PCRA court have complied with Pa.R.A.P. 1925.

      Bryant raises the following eight issues in his brief:

         A. Whether trial counsel was ineffective for failing to
            adequately prepare by meeting with [Bryant]?

         B. Whether trial counsel was ineffective for failing to request
            a pre-trial psychological evaluation?

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         C. Whether trial counsel was ineffective for failing to
            conduct a pre-trial investigation of [a] video tape?

         D. Whether trial counsel was ineffective for failing to
            conduct a pre-trial investigation of [the] victim’s attempt
            to enter [Bryant’s] car through a locked rear passenger
            door?

         E. Whether trial counsel was ineffective for failing to
            interview known witness [Mary] Crooks?

         F. Whether trial counsel was ineffective for failing to
            properly present and preserve the claim for
            Reconsideration of Sentence?

         G. Whether [appellate] counsel was ineffective for failing to
            properly present and preserve the claim [of] insufficient
            evidence to support the third degree murder conviction?

         H. Whether PCRA counsel was ineffective for [filing a] No-
            Merit Letter when the pro se claims possessed merit?

Bryant’s Brief at 3.

      Our scope and standard of review is well settled:

         In PCRA appeals, our scope of review is limited to the
         findings of the PCRA court and the evidence on the record
         of the PCRA court's hearing, viewed in the light most
         favorable to the prevailing party. Because most PCRA
         appeals involve questions of fact and law, we employ a
         mixed standard of review. We defer to the PCRA court's
         factual findings and credibility determinations supported by
         the record. In contrast, we review the PCRA court's legal
         conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted). In addition, A PCRA petitioner’s right to an evidentiary

hearing is not absolute. Commonwealth v. Barbosa, 819 A.2d 81, 85 (Pa.

Super. 2003). Rather, the PCRA court has discretion to dismiss a petition

without a hearing when the court is satisfied that there are no genuine issues

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of material fact, the petitioner is not entitled to post-conviction collateral relief,

and no legitimate purpose would be served by further proceedings.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014). To obtain a

reversal of a PCRA court’s decision to dismiss a petition without a hearing, a

petitioner must show that he has raised a genuine issue of material fact which,

if resolved in his favor, would have entitled him to relief, or that the court

otherwise abused its discretion in denying a hearing. Id.

      All of Bryant’s issues allege the ineffective assistance of counsel. To

obtain relief under the PCRA premised on a claim that counsel was ineffective,

a petitioner must establish, by a preponderance of the evidence, that counsel's

ineffectiveness so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009).                    “Generally, counsel’s

performance is presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by the petitioner.” Id.

This requires the petitioner to demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) counsel’s act or omission prejudiced the petitioner.

Id. at 533.

      As to the first prong, “[a] claim has arguable merit where the factual

averments, if accurate, could establish cause for relief.” Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts




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rise to the level of arguable merit is a legal determination.’”      Id. (citing

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).

       As to the second prong of this test, trial counsel's strategic decisions

cannot be the subject of a finding of ineffectiveness if the decision to follow a

particular course of action was reasonably based and was not the result of

sloth or ignorance of available alternatives. Commonwealth v. Collins, 545

A.2d 882, 886 (Pa. 1988).      Counsel's approach must be "so unreasonable

that no competent lawyer would have chosen it." Commonwealth v. Ervin,

766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted).          A petitioner

asserting ineffectiveness based upon trial strategy must demonstrate that the

“alternatives not chosen offered a potential for success substantially greater

than the tactics utilized.” Commonwealth v. Clark, 626 A.2d 154, 157 (Pa.

1993). “We do not employ a hindsight analysis in comparing trial counsel’s

actions with other efforts he [or she] may have taken.” Stewart, 84 A.3d at

707. A PCRA petitioner is not entitled to post-conviction relief simply because

a chosen strategy was unsuccessful. Commonwealth v. Buksa, 655 A.2d

576, 582 (Pa. Super. 1995).

       As to the third prong of the test for ineffectiveness, “[p]rejudice is

established if there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different." Stewart, 84 A.3d at

707.    “A reasonable probability ‘is a probability sufficient to undermine




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confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899

A.2d 365, 370 (Pa. Super. 2006).

      Finally, when considering an ineffective assistance of counsel claim, the

PCRA court “is not required to analyze these [prongs] in any particular order

of priority; instead if a claim fails under any necessary [prong] of the

ineffectiveness   test,   the   court   may   proceed   to   that   [prong]   first.”

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

In particular, when it is clear that the petitioner has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).                  Counsel

cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

      As did the PCRA court, we address Bryant’s first two issues together.

Bryant first claims that trial counsel was ineffective for failing adequately to

prepare for trial by meeting with him. Bryant argues that, because he was

charged with first-degree murder, he “should have had multiple visits” from

[trial counsel] “to understand the totality of the circumstances and to explore

the complexities of the issues with [him].” Bryant’s Brief at 7. Bryant asserts,

“had [trial] counsel bothered to visit [him] more than once he would have

learned of [his] attempted suicide while in jail.” Id. According to Bryant,

because he “was deprived of the benefits of adequate face-to-face meeting[s],


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it is clear that [his] claim has arguable merit.” Bryant’s Brief at 7. He further

argues that no reasonable basis exists for failing to have personal contact with

a client who was facing murder charges. Finally, Bryant argues that he was

prejudiced by trial counsel’s failure to meet with him in person prior to trial,

because “in order to prepare a defense to a charge of murder in the first

degree, it is essential that at [the] very least, counsel meet his client in

person, to gather information from his client in person, to gather information

from the client, evaluate the client’s demeanor, and try to establish a working

relationship.” Id. at 8.

      In his second issue, Bryant argues that trial counsel was ineffective for

failing to request a pre-trial psychological evaluation. Bryant argues that this

evaluation would have aided him in lessening “his culpability to voluntary

manslaughter under the distinct theories of heat of passion and imperfect self-

defense.” Id. Bryant also argues that the “[q]uestion of competency enters

the arena for [him] based upon his suicide attempt” because this attempt

“should have caused [trial] counsel to question [Bryant’s] competency.” Id.

Bryant further argues that “the proffered evidence of his mental health history

would have established that he shot the victim under the heat of passion” and

that “the omitted evidence would have demonstrated that his ‘passion’ had its

origins in his mental disorders.” Id. at 9. Finally, Bryant “further maintains

that the provocation necessary for a heat of passion claim was established by

the [decedent’s] threats against his life preceding the murder, and the stress


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[Bryant] experienced when the gun discharged.” Id. According to Bryant, “if

[his] proffered evidence of mental health impairment was believed and

accepted as evidence of ‘passion,’ the PCRA court was incorrect in dismissing

the [PCRA] petition.” Bryant’s Brief at 9.

      The PCRA court found that Bryant failed to adequately develop either

claim of ineffectiveness of counsel, and that the claims otherwise lacked

arguable merit. The Court explained:

            [Bryant] failed to provide any facts to establish either of
         [his claims].

                                      ***

            In addressing the first portion of [Bryant’s] claims, this
         Court notes that it was [Bryant’s] burden to provide
         sufficient information to describe the exact failure of trial
         counsel. [Bryant] failed to explain what he meant by “the
         totality of the circumstances” and specifically, what
         information he would have shared with trial counsel had
         there been more pre-trial meetings. By failing to develop
         this claim, despite being on notice from this Court’s [Rule]
         907 Notice that the information in the PCRA petition was
         insufficient, [Bryant] failed to show this aspect of his claim
         had any arguable merit.

             [Bryant] also claims that trial counsel was ineffective for
         failing to learn about [his] suicide attempt in jail and for
         failing to request a pre-trial psychological evaluation.
         [Bryant] claims these were “avenues by which [he] could
         have either attained acquittal or a reduced penalty.”
         Although [Bryant] did not specifically relate these matters
         to an issue of competency to stand trial in his [Rule] 1925(b)
         Statement, since [Bryant’s] petition only raised these
         matters with his competency to be tried, this Court will only
         address the issues of [Bryant’s] suicide attempt and pre-
         trial evaluation as they related to [Bryant’s] competency.

           Initially, [Bryant] claims that trial counsel failed to learn
         about [his] suicide attempt in jail while awaiting trial


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         because trial counsel failed to meet with [him] several
         times. [Bryant] did not explain why he did not share this
         information with trial counsel during their first meeting.
         Furthermore, [Bryant] provided no explanation as to what
         purpose this information would have served, beyond
         mitigating evidence with regard to the sentence imposed.
         When filing a PCRA petition, [a] petitioner is required to
         specify the grounds for the relief requested. [Bryant]
         initially failed to provide any specificity in his pro se PCRA
         petition and failed to address this deficiency even after this
         Court’s [Rule] 907 Notice.

            [Bryant] claims that trial counsel failed to request a
         pretrial psychological evaluation, despite [his] allegation
         that trial counsel saw a need for one. As with [Bryant’s]
         preceding claim, [Bryant] failed to explain why trial counsel
         was ineffective for failing to request such an evaluation.
         [Bryant] failed to provide any reasoning or evidence to show
         that his case was actually prejudiced by trial counsel not
         requesting a pretrial psychological evaluation. Because
         [Bryant] did not meet his burden by providing sufficient
         information, he cannot now show he was actually prejudiced
         and therefore, this claim fails.

PCRA Court Opinion, 12/5/17, at 6-7 (citations and footnotes omitted).

      Despite Bryant’s failure to meet his statutory burden, the PCRA court

further addressed Bryant’s claims in relation to his competency to stand trial,

and concluded that the record demonstrated that he “was competent to stand

trial.” Id. at 8.

      Our review of the record supports the PCRA court’s conclusions.

Initially, we note that it is well settled that the “mere shortness of time for a

defendant to confer with his counsel before trial does not constitute ineffective

assistance of counsel.” Commonwealth v. Robinson, 334 A.2d 687, 688

(Pa. Super. 1975); see also Commonwealth v. Bundy, 421 A.2d 1050,



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1051 (Pa. 1980) (citation omitted) (explaining that “[t]he time devoted to

attorney-client consultations affords no basis for inferring the total extent of

trial preparation”). Thus, although trial counsel only met once in person with

Bryant, this does not reflect on the adequacy of trial counsel’s preparation for

trial. Rather, in order to establish arguable merit to such a claim, the PCRA

petitioner must identify specific issues of merit counsel should have raised or

what beneficial information counsel would have learned had he consulted

further with his client. See, e.g. Commonwealth v. Harvey, 812 A.2d 1190,

1196-97 (Pa. 2002). We agree with the PCRA court that Bryant has failed to

meet this burden.

       Before an evidentiary hearing will be granted, a PCRA petitioner “must

set forth an offer to prove at an appropriate hearing sufficient facts upon which

a reviewing court can conclude that trial counsel may have, in fact, been

ineffective.”   Commonwealth v. Begley, 780 A.2d 605, 635 (Pa. 2001)

(quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981).

Bryant’s PCRA petitions made no such proffer. Stated differently, while Bryant

refers to “proffered” and “omitted” evidence, he failed to explain what further

information trial counsel would have gained from further consultation with him

or a pre-trial psychological evaluation. Our review of the record supports the

PCRA court’s conclusion that Bryant was competent to stand trial.

      In addition, although Bryant now claims that use of his mental health

history at trial would have resulted only in a voluntary manslaughter


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conviction, this claim was not included in his PCRA petition, and was not

presented to the PCRA court with sufficient specificity in his Rule 1925(b)

statement.       Thus it is waived.            See generally Commonwealth v.

Whitehawk, 146 A.3d 266 (Pa. Super. 2016).              Moreover, Bryant cites no

case authority to support his claim that his alleged mental illness could have

led to a “heat of passion” involuntary manslaughter conviction, see

Commonwealth v. Hutchinson, 25 A.3d 277, 314 (Pa. 2011) (defining the

term “passion” as used in the crime of involuntary manslaughter). Finally,

there is nothing in the record to support Bryant’s claim that the victim

threatened his life. Indeed, the record testimony regarding the events prior

to the shooting contradict such a claim. Thus, because Bryant has failed to

establish that either claim of ineffectiveness has arguable merit, his first two

claims do not entitle him to relief.1

       In his third and fourth issues, Bryant argues that trial counsel was

ineffective for failing to conduct a pre-trial investigation of a videotape from a

business close to the crime scene, and for failing to investigate the decedent’s

attempt to enter his vehicle via the locked rear passenger door. Bryant argues

that “a cursory investigation [by trial counsel] would have secured information

in possession of the prosecution and the police, i.e., a video tape from the


____________________________________________


1 Although Bryant baldly asserts that use of his mental health history could
also have led to a voluntary manslaughter (unreasonable belief) conviction,
he provides no further argument.


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neighborhood Chinese store,” which “would have shown the [decedent]

running after” his vehicle. Bryant’s Brief at 10. According to Bryant, “[i]n a

case as this one, and where the unpresented evidence so clearly bolsters the

defense that was partially presented by [trial] counsel, prejudice is clear.” Id.

at 11.

         In support of his fourth issue, Bryant asserts that a “cursory

investigation would have revealed the victim had attempted to enter [his]

vehicle through a locked rear passenger door at the scene of the incident.”

Id. at 12. Bryant further argues that during the attempted entry, he clearly

observed a gun in the decedent’s hand, and these facts “clearly would have a

new dimension to the cross-examining of the witnesses.” Id. In addition,

Bryant opines that this information, “would have [alerted] trial counsel to

pursue matters with the police about the witnesses who removed the

[decedent’s] gun from his pocket.       It also would have uncovered that the

[decedent] had drugs in his system from the toxicology report.” Id.

         Like Bryant’s first two issues, the PCRA court concluded that these

claims of ineffectiveness were undeveloped and otherwise without arguable

merit. The court explained:

           As to the matter of the security camera footage, [Bryant]
           failed to cite to any facts in the record which would indicate
           that a recording of security camera footage existed, let
           alone that it would show any of the events leading up to the
           shooting. The [trial] testimony of Saunders made mention
           of a Chinese Store “on the corner,” which decedent ran past
           to get to [Bryant’s] car, which was parked around the corner
           on Bonnafon Street. There is no mention in these records

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         of whether there were any cameras installed at the Chinese
         Store, which may have recorded any of the events on the
         day of the shooting, nor did the Commonwealth at any time
         indicate that it possessed such a recording. In order to be
         eligible for relief under the PCRA, the petitioner must “plead
         and prove” each claim in his PCRA petition. As [Bryant]
         failed to provide any evidence to support his claim that
         security camera footage existed, short of the bare assertion
         of it, it fails.

             [Bryant] also claims that trial counsel was ineffective for
         failing to conduct an investigation that would have revealed
         that decedent attempted to enter [Bryant’s] car while
         holding a gun. Aside from [his] bare assertion that decedent
         had a gun, [Bryant] failed to provide any evidence that
         anyone saw decedent with a gun. [Bryant] elected not to
         testify. Thus, at trial, it was uncontested that decedent did
         not have a weapon in his possession at the time of the
         incident. [Seleshi testified that he “patted down” decedent’s
         clothing while he was looking for decedent’s keys in order
         to drive decedent to the hospital, and did not discover any
         weapons at that time. Further, neither Saunders nor Ayele
         observed any kind of weapon on decedent’s person at any
         time the evening of the shooting.] As such, this claim is
         without arguable merit and, therefore, it fails.

            Next, [Bryant] claims that trial counsel was ineffective
         for failure to learn about or address the fact that decedent
         had drugs in his system at the time of the shooting.
         Because [trial] counsel did, in fact, address this fact, this
         claim lacked arguable merit.

PCRA Court Opinion, 12/5/17, at 9-10 (citations and footnotes omitted).

      Once again our review of the record supports the PCRA court’s

conclusions. Claims of trial counsel’s ineffectiveness are not self-proving and

therefore cannot be raised in a vacuum. See generally, Commonwealth v.

Pettus, 424 A.2d 1332 (Pa. 1981). Because Bryant has not established that

a video tape of security camera footage even existed, this ineffectiveness



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claim rests on no more than speculation. In addition, nothing in the record

supports his claim that the decedent possessed a gun on the night of the

shooting. As recognized by the PCRA court, the testimony from witnesses at

trial indicated that the decedent was unarmed. Although Bryant now claims

that he saw the decedent with a gun in his hand, Bryant had the opportunity

to relay this information to trial counsel either before or during trial. There is

no record evidence that he did so. Finally, as noted by the PCRA court, trial

counsel stipulated to the admission of the medical examiner’s cause of death,

which included the toxicology report, and trial counsel, during his closing

argument, referred to the presence of drugs in the decedent’s system as

affecting the decedent’s behavior on the night of the incident. See PCRA Court

Opinion, 12/5/17, at 10-11. For all these reasons, Bryant’s third and fourth

issues afford Bryant no relief.

      In his fifth issue, Bryant argues that trial counsel was ineffective for

failing to interview Mary Crooks. According to Bryant, Ms. Crooks “was initially

questioned by the police because she saw a black male run past her and throw

his hat on the fence by the Chinese store on the block.” Bryant’s Brief at 13-

14. Bryant argues that because the Chinese store was in close proximity to

where the shooting occurred, she “could have shed light on what the

[decedent] was doing before he attacked [him].” Bryant contends that trial

counsel was provided with Ms. Crooks’ statement in discovery, and that he

was prejudiced because Ms. Crooks was an “eye-witness to the defense theory

that the [decedent] attacked” him. Id. at 14. Bryant further contends that

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her testimony would have also contradicted “the alleged theory put forward

by the Commonwealth.” Id.

      In dismissing this claim, the PCRA court noted that Bryant failed to

attach to his PCRA petition the requisite certification regarding Ms. Crooks’

proposed testimony, information regarding her name, address and date of

birth, and “any documents material to that witness’s testimony.” PCRA Court

Opinion, 12/5/17, at 11-12 (citing 42 Pa.C.S.A. 9545(d)). The PCRA court

further stated that, besides not providing this certification, Bryant “failed to

even provide evidence to establish that such an individual was, in fact,

interviewed by the police in reference to the shooting.” Id. at 12. Finally, the

PCRA court noted that it informed Bryant of this deficiency in its Rule 907

notice, but that Bryant did not address the matter further in his response. Id.

      We agree with the PCRA court’s conclusion that the lack of a certification

from Bryant regarding Ms. Crooks, in and of itself, is fatal to his ineffectiveness

claim. Moreover, as recognized by the PCRA Court, in order to prevail on a

claim that trial counsel was ineffective for failing to interview a witness, a

PCRA petitioner must establish that: 1) the witness existed; 2) the witness

was available and willing to testify for the defense; 3) counsel was aware, or

should have been aware, of the witness’s existence; and 4) that the petitioner

was prejudiced by the absence of the witness’s testimony. Commonwealth

v. Simpson, 66 A.3d 253, 271 (Pa. 2013). Here, other than his bald assertion

that trial counsel was provided Ms. Crooks’ statement in discovery, Bryant has




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failed to prove any of the Simpson factors. Thus, the PCRA court properly

rejected this ineffectiveness claim, and Bryant’s fifth issue fails.

      In his sixth issue, Bryant claims that trial counsel was ineffective for

failing to properly present and preserve a claim regarding his motion for

reconsideration of his sentence. According to Bryant, trial counsel failed to

support his post-sentence motion with legal argument and case law.        See

Bryant’s Brief at 15.     In addition, Bryant claims that there can be no

“reasonable tactical decision” to not adequately support the motion, especially

“when that omission yields a long sentence for one’s client that would

otherwise be the case.” Id.

      The PCRA court found this claim to lack arguable merit because trial

counsel did file a reconsideration motion. Moreover, the court concluded that

Bryant “failed to allege what case law or legal argument trial counsel could

have provided” such that his reconsideration motion would have been granted.

PCRA Court Opinion, 12/5/17, at 13.

         The court also explained:

            Furthermore, this Court does not see what legal
         argument [Bryant] believes trial counsel could have made.
         At [Bryant’s] sentencing hearing, trial counsel requested the
         Court to consider [Bryant’s] past as well as his mental
         health issues. In Pennsylvania, one of the fundamental
         norms in the sentencing process is that a defendant’s
         sentence be individualized. That is what occurred in this
         case.   [Bryant] was not given the maximum possible
         sentence of 20-40 years [of] imprisonment on the murder
         of the third degree conviction. The Court considered the
         facts of the case and the information contained in the
         Presentence Investigation and in the Mental Health Report.


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         Because trial counsel did in fact file for reconsideration of
         sentence, the claim has no arguable merit, and therefore it
         fails.

Id. (citations and footnote omitted).

      We agree with the PCRA Court that this claim of ineffectiveness affords

Bryant no relief. In Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007),

our Supreme Court held that a PCRA petitioner raising a claim of

ineffectiveness regarding counsel’s failure to file a motion for reconsideration

must establish actual prejudice.        See Reaves, 923 A.2d at 1130.

Specifically, the Court held that a PCRA petitioner must show that filing the

motion would have led to a more favorable sentence:

         The Commonwealth argues that the Superior Court’s
         prejudice analysis misses the mark because the panel
         improperly focused on the effect of counsel’s inaction upon
         the [appeal], rather than looking to the outcome of the
         underlying [proceeding] itself.     The Commonwealth is
         correct. Although contemporaneous objections operate to
         preserve issues for appellate review, they serve an equally
         important function in obviating appeals by affording the
         trial court a timely opportunity to correct mistakes and/or
         to reconsider decisions. Whether [counsel] can be deemed
         ineffective, then, depends upon whether [a defendant] has
         proven that a motion to reconsider sentence if filed . . .
         would have led to a different and more favorable outcome
         at [sentencing].     In this context, the only way the
         proceeding would have been more favorable would be if
         counsel’s objection secured a reduction in the sentence. The
         Superior Court panel erred as a matter of law in failing to
         appreciate the actual focus of the [actual] prejudice
         standard.

Reaves, 923 A.2d at 1131-32 (emphasis in original; footnote omitted). Our

Supreme further concluded that Reaves did not establish actual prejudice,


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since “[on] this record, there is no reason to believe that, if only counsel had

asked for a statement of reasons for the sentence at the [time of sentencing]

that statement or explanation alone would have led the court to reduce the

sentence”). Id. at 1132.

      Here, Bryant failed to establish actual prejudice. Our Supreme Court in

Reaves rejected a petitioner’s claim of actual prejudice based merely upon

counsel’s   failure   to    preserve    an      appellate    issue.   Although    Bryant

acknowledges     that      trial   counsel     filed   a   reconsideration   motion,   he

nevertheless asserts that counsel failed to adequately support his sentencing

claims with legal argument and case law. Bryant has provided no basis to

disturb the PCRA court’s determination that a motion for sentence

reconsideration would have resulted in a reduced sentence.                   Given these

circumstances, the PCRA court did not err in dismissing Bryant’s sixth

ineffectiveness claim.

      In his seventh claim, Bryant asserts that appellate counsel was

ineffective because he “failed to articulate any substantial argument on the

issue of insufficient evidence to support the third degree murder conviction.”

Bryant’s Brief at 16. In addition, Bryant notes that appellate counsel failed to

provide the correct docket number. Id. We agree with the PCRA court that,

because appellate counsel challenged the sufficiency of the evidence

supporting Bryant’s murder conviction in his direct appeal, Bryant’s sufficiency

claim is a “previously litigated” claim under the PCRA.               See PCRA Court’s

Opinion, 12/5/17, at 13-14 (citing 42 Pa.C.S.A. § 9544(a). Bryant’s claim

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that appellate counsel was ineffective in presenting the sufficiency challenge

on his direct appeal is refuted by our review of this Court’s disposition of that

claim. Our rejection of Bryant’s sufficiency challenge was not based on an

incorrect docket number. Rather, although appellate counsel argued that the

evidence presented by the Commonwealth supported only a conviction for

voluntary manslaughter (unreasonable belief), we disagreed, concluding that

“the totality of the circumstances established an unintentional killing done with

malice.” Bryant, unpublished memorandum at 6. Thus, Bryant’s seventh

ineffectiveness claim fails.

      In his eighth and final issue, Bryant asserts that PCRA counsel was

ineffective for filing a Turner/Finley no-merit letter instead of an amended

petition raising his meritorious issues, and that raising the claim within his

brief is his first opportunity to raise the claim. See Bryant’s Brief at 16. We

disagree. Bryant had the opportunity to raise this claim in response to the

PCRA court’s Rule 907 notice of intent to dismiss his petition.             See

Commonwealth v. Pitts, 981 A.2d 875, 879-80 n.3 (Pa. 2009). Because he

did not do so, his claim of PCRA counsel’s ineffectiveness is inappropriately

being raised for the first time on appeal. See Pa.R.A.P. 302(a). Nevertheless,

because we have concluded that all of Bryant’s other ineffectiveness claims

fail, even if this final claim was preserved, this would have failed.

      In sum, because all of Bryant’s ineffectiveness claims are meritless, we

affirm the PCRA court’s order denying him post-conviction relief.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/18




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