J-S67005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 ANTOINE GARDINER                      :
                                       :
                   Appellant           :   No. 1494 EDA 2017

                Appeal from the PCRA Order April 20, 2017
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0002773-2014

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 ANTOINE GARDINER                      :
                                       :
                   Appellant           :   No. 1526 EDA 2017

                Appeal from the PCRA Order April 20, 2017
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0002774-2014,
           CP-51-CR-0002780-2014, CP-51-CR-0002781-2014,
           CP-51-CR-0002782-2014, CP-51-CR-0002784-2014,
           CP-51-CR-0002785-2014, CP-51-CR-0002786-2014,
           CP-51-CR-0002787-2014, CP-51-CR-0002788-2014,
           CP-51-CR-0002790-2014, CP-51-CR-0002791-2014,
           CP-51-CR-0002802-2014, CP-51-CR-0002841-2014,
           CP-51-CR-0002842-2014, CP-51-CR-0002843-2014,
            CP-51-CR-0002844-2014, CP-51-CR-0014370-2013


BEFORE:   OTT, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY OTT, J.:                            FILED APRIL 15, 2019




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        Antoine Gardiner appeals from the order entered April 20, 2017, in the

Court of Common Pleas of Philadelphia County, that dismissed, without a

hearing, his first counseled petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.           Gardiner seeks relief from the

judgment of sentence to serve an aggregate term of 11½ to 23 months’

imprisonment, to be followed by twelve years of reporting probation, imposed

upon his convictions for eighteen counts of theft by receiving stolen property

and seventeen counts of criminal conspiracy.1       On appeal, Gardiner claims

that trial counsel was ineffective for: (1) failing to call six fact witnesses who

would have refuted the Commonwealth’s main witness’s testimony that he did

not lease commercial property from Gardiner; and (2) failing to call Gardiner’s

wife to testify to his daily schedule. See Gardiner’s Brief at 4-5. Based upon

the following, we affirm.

        The PCRA court described the facts underlying Gardiner’s convictions as

follows:

        At trial, the Commonwealth’s primary witness was Joseph Murray,
        a heroin addict who schemed with [Gardiner] to steal vans owned
        by construction contractors and other business owners for their
        contents, namely tools and other items used by the vans’ owners
        in their respective businesses. The vans were stolen by Murray
        between May and October, 2013. Murray acted alone except for
        two occasions when [Gardiner] accompanied him. After stealing
        the vans, Murray drove them to 5049-5075 Lancaster Avenue [the
        Property] in West Philadelphia, a 50,000 square foot building
        owned by [Gardiner], where [Gardiner] and Murray would remove
        any equipment and tools that were in the vans and store it in the
____________________________________________


1   18 Pa.C.S.A. §§ 3925 and 903, respectively.

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     [Property]. Once the vans were unloaded, Murray would abandon
     the vans in West Philadelphia. Murray testified that [Gardiner]
     paid him for every van he stole, along with its contents. Following
     his arrest, Murray signed a [m]emorandum of [a]greement with
     the Commonwealth and agreed to testify against [Gardiner].

     Following the repeated thefts of the vans, police determined that
     some vans were equipped with GPS enabling the police to track
     them. Investigation resulted in police focusing on the [P]roperty
     after some vans were tracked to that location. Police installed
     pole cameras to record the area[,] which captured vans being
     driven to and then parked inside [the Property] and items being
     removed from them. On October 4, 2013, in the early morning
     hours, the cameras recorded a van driving up to [the Property]
     and parking outside [it]. Thirty-five minutes later, the van was
     driven inside [it]. At 6:30 p.m., [Gardiner] entered the parking
     lot and was observed backing his vehicle up to a door at which
     time he appeared to be loading items into the vehicle’s trunk.

     On October 7, 2013, two contractors’ vans were stolen and then
     driven to the above location. One person was observed on video
     unloading items from the vans into the building. Later that day,
     police, armed with a search warrant for the premises, went to [the
     Property]. At about 6:00 p.m., police observed [Gardiner] exit
     the [P]roperty and lock the door behind him. [Gardiner] entered
     his vehicle and drove away. Police stopped the vehicle and
     [Gardiner] asked, “What’s this about?” When police told him that
     the stop concerned [the Property], [Gardiner] stated, “I don’t
     have anything to do with it. I don’t have keys to the place.”
     Following this exchange, police drove [Gardiner] back to the
     [P]roperty and executed the search warrant using keys in
     [Gardiner’s] possession to open a door to the [P]roperty and its
     gate. A search of the [P]roperty resulted in the seizure of four
     truckloads of tools and other equipment many of which were
     identified as having come from the stolen vans.

PCRA Court Opinion, 1/31/2018, at 2-4 (footnote and record citations

omitted).

     A bench trial took place on February 26-27, 2015, following which the

trial judge convicted Gardiner of the above-delineated offenses. On July 10,


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2015, the trial court imposed the afore-mentioned sentence. Gardiner did not

file a direct appeal. On June 2, 2016, Gardiner timely filed a counseled PCRA

petition.   On March 6, 2017, the court held oral argument on the PCRA

petition. Thereafter, on March 17, 2017, the PCRA court issued a Pa.R.Crim.P.

907 notice of intent to dismiss. Gardiner did not file a response to the Rule

907 notice. On April 20, 2017, the PCRA Court dismissed the petition. This

timely appeal followed.2

       The principles that guide our review are well settled.

       We review the denial of PCRA relief to decide whether the PCRA
       court’s factual determinations are supported by the record and are
       free of legal error. When supported by the record, the PCRA
       court’s credibility determinations are binding on this Court, but we
       apply a de novo standard of review to the PCRA court’s legal
       conclusions. We must review the PCRA court’s findings and the
       evidence of record in a light most favorable to the Commonwealth
       as the winner at the trial level.

                                         ****


____________________________________________


2 On April 27, 2017, the PCRA court ordered Gardiner to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal. Gardiner filed a concise
statement on May 15, 2017; the court issued its opinion on January 31, 2018.

      Before we address the substance of this appeal, we first note that a
single order disposed of all the cases listed in the caption. Gardiner filed a
single notice of appeal from the order, despite the fact the order disposed of
separate matters. This was a common practice. However, our Supreme Court
has recently determined that in instances, such as is currently before us,
where a single order disposes of multiple cases, the appellant must file a notice
of appeal for each case. If the appellant files a single notice of appeal, the
appeal is to be quashed. See Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018). The Walker decision is to be applied prospectively from the date of
the opinion. Id. at 13. Because this appeal was filed prior to the Walker
decision, we may address the substance of the appeal.

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     With respect to claims of ineffective assistance of counsel, counsel
     is presumed to be effective, and the petitioner bears the burden
     of proving to the contrary. To prevail, the petitioner must plead
     and prove, by a preponderance of the evidence, the following
     three elements: (1) the underlying claim has arguable merit; (2)
     counsel had no reasonable basis for his or her action or inaction;
     and (3) the petitioner suffered prejudice as a result of counsel’s
     action or inaction. With regard to the second prong (reasonable
     basis), we do not question whether there were other more logical
     courses of action which counsel could have pursued; rather, we
     must examine whether counsel’s decisions had any reasonable
     basis. We will hold that counsel’s strategy lacked a reasonable
     basis only if the petitioner proves that a foregone alternative
     offered a potential for success substantially greater than the
     course actually pursued. Our review of counsel’s performance
     must be highly deferential.       To establish the third element
     (prejudice), the petitioner must show that there is a reasonable
     probability that the outcome of the proceedings would have been
     different but for counsel’s action or inaction.

     Because a petitioner’s failure to satisfy any of the above-
     mentioned elements is dispositive of the entire claim, [a] court is
     not required to analyze the elements of an ineffectiveness claim
     in any particular order of priority; instead, if a claim fails under
     any necessary element of the ineffectiveness test, the court may
     proceed to that element first.

                                   ****

     To prove that trial counsel provided ineffective assistance for
     failing to call a witness, a petitioner must demonstrate:

           (1) the witness existed; (2) the witness was available
           to testify for the defense; (3) counsel knew of, or
           should have known of, the existence of the witness;
           (4) the witness was willing to testify for the defense;
           and (5) the absence of the testimony of the witness
           was so prejudicial as to have denied the defendant a
           fair trial.

                                   ****




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      With respect to [a petitioner’s] claim that he should have been
      provided a full evidentiary hearing on all of his PCRA claims, the
      law in this area is clear:

      [T]he PCRA court has the discretion to dismiss a petition without
      a hearing when the court is satisfied that there are no genuine
      issues concerning any material fact, the defendant is not entitled
      to post-conviction collateral relief, and no legitimate purpose
      would be served by further proceedings. To obtain reversal of a
      PCRA court’s decision to dismiss a petition without a hearing, an
      appellant must show that he raised a genuine issue of 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.
      We stress that an evidentiary hearing is not meant to
      function as a fishing expedition for any possible evidence
      that     may      support    some     speculative      claim      of
      ineffectiveness.

Commonwealth v. Brown, 196 A.3d 130, 150-151, 167, 192-193 (Pa.

2018) (citations, internal citations, and quotation marks omitted, emphasis

added).

      In both his issues, Gardiner claims that trial counsel’s representation

was deficient because he did not call certain witnesses. However, Gardiner

waived these claims.

      In his PCRA petition, Gardiner contended that counsel was ineffective

for failing to call six witnesses who would have testified that Gardiner was the

owner of the Property and that he leased out portions of the premises. See

PCRA Petition, 6/02/2016, at 2-5. Gardiner contended that this testimony

was necessary at trial to refute the Commonwealth’s contention that he had

no lawful interest in the Property and did not operate a real estate company

that leased the premises. Id. At oral argument, PCRA counsel reiterated this

claim, stating that the “crux” of the PCRA petition was the claim that counsel


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was ineffective for not refuting the Commonwealth’s assertion that someone

other than Gardiner owned the Property. N.T. PCRA Argument, 3/06/2017,

at 6-8. Specifically, counsel stated:

       During the course of the trial, especially when Mr. Gardiner
       testified [the Commonwealth] confronted him on whether or not
       he was the lawful owner. They also confronted him on cross-
       examination as to whether or not he had any proof that he was
       the owner and lessor, such as bank records, ledger records[.]

                                         ****

       It’s whether or not he was not only the lawful owner — they were
       suggesting he was not the lawful owner. More importantly, there
       was a management company that ran the business. There was
       questions whether there was a proper lease between the people
       that he was identifying or not and whether or not there were
       property receipts for rentals all suggesting that he’s lying about
       his interest in the business.[3]

Id. at 6-7.

       In his Rule 1925(b) statement, Gardiner reiterated these claims but

included, for the first time, a claim that three of the six witnesses were

necessary to refute Murray’s trial testimony that he never entered into a

____________________________________________


3 Gardiner’s argument is a patent misreading of the trial transcript. At no
point did the Commonwealth dispute that Gardiner owned the building, leased
portions of it to various tenants, and employed a management company. The
Commonwealth also did not dispute Gardiner’s claim that Murray rented an
apartment from him, although it did question the existence of a written lease.
Rather, the Commonwealth disputed Gardiner’s claim that Murray leased
commercial space from him and that Murray paid Gardiner rent for either the
apartment or the commercial space.              The entire portion of the
Commonwealth’s cross-examination of Gardiner referenced by counsel at oral
argument concerned whether Gardiner had any documentation to support his
contention regarding the leases with and rent payments from Murray. See
N.T. Trial, 2/27/2015, at 37-49.

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commercial lease with Gardiner.           Statement of [Errors] Complained of on

Appeal, 5/15/2017, at 2-3.

       With respect to Gardiner’s second claim, in both his PCRA petition and

his Rule 1925(b) statement, he alleged that trial counsel was ineffective for

failing to call his wife, Shirley Gardiner, as an alibi witness who would have

testified that, “[Gardiner] was with her during all times relevant to said

charges.” PCRA Petition, 6/02/2016, at 5; see also Statement of [Errors]

Complained of on Appeal, 5/15/2017, at 3.

       However, on appeal, Gardiner has changed his legal theories, he now

claims that trial counsel should have called the six potential witnesses to refute

Murray’s testimony that he did not have a commercial lease with Gardiner and

that there was “not an offset of rent in return for the procurement of stolen

items given to [Gardiner].”4 Gardiner’s Brief, at 4. Moreover, he no longer

claims that his wife was an alibi witness but rather that she would testify about

Gardiner’s general daily schedule and his adherence to it, presumably in an

attempt to demonstrate that he was at home during the hours the thefts took

place. See id. at 4-5.

       It is long settled that PCRA issues not raised in a PCRA petition or

amended PCRA petition are waived on appeal. Commonwealth v. Lauro,

____________________________________________


4 Despite alleging in his statement of the questions involved that all six
witnesses would testify about the existence of a commercial lease between
Gardiner and Murray, in the body of his brief, Gardiner admits that only two
of the six proposed witnesses had any knowledge of his dealings with Murray.
See Gardiner’s Brief, at 13-14.

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819 A.2d 100, 103-104 (Pa. Super. 2003), appeal denied, 830 A.2d 975 (Pa.

2003) (waiving five issues not in original or amended PCRA petition). Further,

an appellant cannot raise matters for the first time in a Rule 1925(b)

statement. Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super.

2011) (issues raised for first time in Rule 1925(b) statement are waived).

Also, as amended in 2007, Rule 1925 provides that issues that are not

included in the Rule 1925(b) statement or raised in accordance with Rule

1925(b)(4) are waived. Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth

v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by rule on other grounds

as stated in Commonwealth v. Burton, 973 A.2d 428, 430 (Pa. Super.

2009). Lastly, an appellant cannot raise a subject for the first time on appeal.

Commonwealth v. Hanford, 937 A.2d 1094, 1098 n.3 (Pa. Super. 2007),

appeal denied, 956 A.2d 432 (Pa. 2008) (new legal theories cannot be raised

for first time on appeal); Pa.R.A.P. 302(a).

      Here, Gardiner did not argue in his PCRA petition or at oral argument

that trial counsel was ineffective for failing to call the six proposed witnesses

to refute Murray’s testimony regarding the existence of a commercial lease.

Instead, he raised this claim for the first time in his Rule 1925(b) statement,

then further modified it on appeal. In addition, on appeal, he dropped his

claim that Shirley Gardiner was an alibi witness, instead, arguing for the first

time that she would testify regarding his daily schedule. Thus, he waived his

issues on appeal.    See Lord, supra at 308; Coleman, supra at 1118;

Hanford, supra at 1098 n.3; Lauro, supra at 103-104.

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       Moreover, Gardiner’s claims are meritless. First, to the extent that he

continues to argue that four of his six proposed fact witnesses are necessary

to refute the Commonwealth’s contention that he did not own the Property,

the record belies his claims. As the PCRA court aptly stated,

       [Gardiner’s] petition fails to set forth where in the record the
       Commonwealth argued or presented evidence that [he] was guilty
       simply because he owned the building. [Gardiner] also fails to cite
       where in the record that [the trial court’s] verdict was predicated
       on the defense’s failure to prove that he owned the building where
       the stolen goods were stored.

                                         ****

       [Gardiner’s] PCRA petition fails to establish that trial counsel’s
       ineffectiveness with regard to this issue prejudiced him such that
       the outcome would have been different had counsel investigated
       and called the witnesses to prove that [Gardiner] owned the
       building. [Gardiner] implies that he simply owned the building
       and divested himself of any occupancy because he entered into a
       series of lease agreements with various tenants. In so arguing,
       [Gardiner] completely ignores the mountain of credible evidence
       presented against him showing his actual knowledge of and
       participation in the conspiracy to steal.      [Gardiner] himself
       testified that he owned the building, testimony which [the trial
       court], sitting as fact-finder believed.[5] Thus, the evidence he
       now claims counsel was ineffective for not introducing was
       cumulative of evidence already presented during trial. Trial
       counsel cannot be deemed ineffective for failing to present
       cumulative testimony. See Commonwealth v. Milligan, 693
       A.2d 1313, 1319 (Pa. Super. 1997) (failure to call witnesses was
       not ineffective assistance of counsel where the witness’ testimony
____________________________________________


5 We note that Commonwealth witness Detective John Logan testified that
Gardiner owned the Property. N.T. Trial, 2/26/2015, at 140. Defense witness
Bernard Williams testified both that Gardiner hired him to work at the Property
and that he was aware that Murray leased space at the Property. N.T. Trial,
2/27/2015, at 5-8. Defense witness David Denenberg, Esquire, testified that
he had a written lease with Gardiner to rent space at the Property. Id. at 14-
15.

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      would have been cumulative evidence presented) (citations
      omitted).

PCRA Court Opinion, 1/31/2018, at 8-9. Thus, we agree with the PCRA court

that this claim lacks merit.

      Gardiner claims that the remaining two of the proposed fact witnesses

would have testified and presented documentary evidence to refute Murray’s

claim that he did not have a commercial lease with him and did not pay him

rent. Gardiner did not attach any affidavits or other supporting documentation

from the witnesses to his PCRA petition, which demonstrated their willingness

to testify for the defense. Further, he did not provide any specific information

regarding the details of their proposed testimony. On appeal, Gardiner never

states that trial counsel was aware of the existence of these witnesses. Lastly,

he never explains how the testimony of these witnesses would have changed

the result in this matter. While the purported testimony of these witnesses

might have refuted Murray’s claim regarding the commercial lease, the issue

of said lease was, at best, peripheral to the issue of Gardiner’s involvement in

the conspiracy and, as the PCRA court stated above, he ignores all the direct

evidence produced by the Commonwealth showing his involvement in the

conspiracy.   Thus, Gardiner fails to set forth the ineffectiveness analysis

required by Strickland v. Washington, 466 U.S. 668, 687 (1984). Because

he did not establish any of the three prongs, we must deem counsel’s

assistance constitutionally effective.   See Commonwealth v. Rolan, 964

A.2d 398, 406 (Pa. Super. 2008) (holding where appellant fails to address

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three prongs of ineffectiveness test, he does not meet his burden of proving

ineffective assistance of counsel, and counsel is deemed constitutionally

effective). Thus, even if Gardiner had not waived his first claim, we would

find it meritless.

      Gardiner’s second claim regarding the proposed testimony of his wife

suffers from the same fatal flaws. In addressing the claim raised below, that

his wife could provide an alibi for the crime, the PCRA court, who sat as the

fact-finder at trial, stated:

      . . . his assertion that Ms. Gardiner [was] with him at all times
      relevant to the prosecution is simply ludicrous and belied by the
      Commonwealth’s uncontradicted evidence as well as [Gardiner’s]
      own testimony. First, the crimes which [Gardiner] was charged
      occurred over a five month period. Certainly any claims that
      [Gardiner] was with his wife during the entire period of time at all
      times relevant to the crimes is simply not credible. . . .

PCRA Court Opinion, 1/31/2018, at 10 (emphasis in original).

      Here, as discussed above, Gardiner now claims that his wife would

testify about his daily schedule, stating that during the entire five-month

period he left for work at approximately 6:30 a.m., arrived home at

approximately 7:00 p.m., and never deviated from this schedule. Gardiner

fails to explain how this testimony is any less ludicrous than a claim that she

was with him at all times during a five-month period and why the trial court

would have credited it, given the above discussion and given the videotape

evidence by the Commonwealth showing Gardiner participating in the crime.

See N.T. Trial, 2/26/2015, at 113-117; 2/27/2015, at 35-36. Again, we find


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that, because Gardiner has failed to set forth the analysis required by

Strickland, even if not waived, his second claim is meritless.          See

Strickland, supra at 687; Rolan, supra at 406.

     As Gardiner’s claims are both waived and meritless, we affirm the denial

of his PCRA petition without an evidentiary hearing.

     Order affirmed.

     Judge Nichols joins this memorandum.

     Judge Strassburger files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/19




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