J-S73006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DENNIS M. ROBINSON                       :
                                          :
                    Appellant             :   No. 711 MDA 2019

             Appeal from the PCRA Order Dated April 8, 2019
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0000549-2010


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 27, 2020

      Appellant, Dennis M. Robinson appeals from the order dated April 8,

2019, denying his petition for relief pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. In this timely appeal, Appellant asserts

that the PCRA court erred in finding that the Commonwealth did not violate

Brady v. Maryland, 373 U.S. 83 (1963), and raises three allegations of

ineffective assistance of counsel. After careful review, we affirm.

      The PCRA court related the relevant facts and procedural history of this

case, as follows:

             [Appellant] was found guilty of criminal homicide and
      firearms not to be carried without a license following a four-day
      jury trial [from October 3, 2011, through October 6, 2011] before
      the Honorable Todd Hoover (now deceased). [On October 11,
      2011, Appellant] was sentenced to life imprisonment for the
      homicide, and a concurrent term of two to five years for firearms
      not to be carried without a license. Bryan McQuillan, Esq.,
      represented [Appellant] at trial, sentencing, and on direct appeal.
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                                    * * *

            According to the trial testimony and as set forth in the trial
     court opinion, Appellant’s friend, Eric Greene [(“Greene”)],
     testified that in the early morning hours of October 11, 2009, he
     and [Appellant] left a party in a car. During the ride home, they
     saw Justin Williams [(“Williams”)] walking on Second Street in
     Steelton and exited the vehicle. At that point, Greene witnessed
     [Appellant] point a .38 caliber revolver towards Williams, hit
     Williams with the gun, and [run] away. Greene and [Appellant]
     then drove to [the Crown Chicken] restaurant. Around 3:00 a.m.,
     Green[e] and [Appellant] were dropped off at the restaurant,
     which was an eight to ten minute drive from their previous location
     in Steelton. While there, the two encountered Jermaine Dawson,
     the homicide victim in this case. A woman named Talitha Davis
     knew Dawson as the “movie guy,” and referred to him as such.
     She knew him because she previously bought some CDs and DVDs
     from Dawson.3 Dawson asked Greene and [Appellant] if they had
     seen his big bag of DVDs and offered $20 in return for his bag.
     Greene observed [Appellant] accept $20 from Dawson and state
     to Dawson that he would retrieve the bag. Green[e] was with
     [Appellant] all night and [Appellant] never said anything about
     knowing the location of Dawson's bag. Surveillance video at
     2:47 a.m. showed [Appellant], Greene, and Dawson at the
     restaurant.

           3 TalithaDavis testified that in the early morning hours
           of October 11, 2009, she went to a restaurant, noticed
           a pocketbook, and decided to take it home. After
           arriving home and sorting through the bag, she
           realized that it belonged to the “movie guy,” as it
           contained movies [and] music. Davis attempted to
           return the bag to him but learned that he had been
           shot.

           Greene later testified that after he and [Appellant] left the
     restaurant, Dawson followed behind and repeated[ly] asked
     [Appellant] for the return of the bag or his money. An argument
     ensued.

           Green[e] observed [Appellant] pull out a .38 revolver,
           which was the same revolver [Appellant] pulled out in
           Steelton less than an hour earlier, and say to Dawson
           [“]stop following me before I spark [sic] you.”

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            [Appellant] and Greene wrestled for the gun and then
            [Appellant] shot Dawson five to six times. After the
            shooting, [Appellant] and Greene ran off and
            separated ways.

           Dawson died of multiple gunshot wounds. [Appellant’s]
      defense theory at trial was that it was Eric Greene who shot and
      killed Dawson.     The Commonwealth heard testimony from
      Greene, Talitha Davis, and other witnesses who lived nearby and
      heard the shooting. The Commonwealth also called Williams as
      a hostile witness. Williams positively identified [Appellant] as the
      person who tried to rob him and struck him in the head with a
      revolver. [Appellant] presented no witnesses.

PCRA Court Opinion, 4/8/19, at 1–3 (record references and some footnotes

omitted).

      Appellant’s judgment of sentence was affirmed by this Court on

November 7, 2012.      On April 16, 2013, the Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal, and on January 29, 2014,

Appellant filed a timely pro se PCRA petition.     William Shreve, Esq., was

appointed to represent Appellant. Attorney Shreve filed a motion to withdraw,

and on April 2, 2015, Roy L. Galloway, Esq., entered his appearance.         An

amended PCRA petition was filed on August 17, 2015, and a second-amended

petition was filed on October 7, 2015, to correct a procedural deficiency in the

amended petition. The PCRA court conducted hearings on Appellant’s second

amended petition on February 21, 2017, July 7, 2017, December 12, 2017,

and October 8, 2018. On April 8, 2019, the PCRA court denied post-conviction




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relief, and this appeal followed. Appellant and the PCRA court complied with

Pa.R.A.P. 1925.1

       Appellant raises the following issues on appeal:

              A. Whether the trial Court erred in not finding a Brady
       violation for the failure to turn over information concerning the
       implied agreement to “help” Eric Green[e] with his criminal
       charges in exchange for his testimony against the Appellant?

             B. Whether the trial Court erred in determining that trial
       counsel was not ineffective for failing to investigate and call
       available character witnesses on behalf of the Appellant at trial?

             C. Whether the trial Court erred when it determined that the
       trial counsel was not ineffective for failing to request an
       accomplice / corrupt and polluted source instruction at trial?

              D. Whether the trial Court erred when it determined that the
       trial counsel was not ineffective for failing to request a crimen falsi
       instruction at trial?

Appellant’s Brief at 3.

       In reviewing an order denying PCRA relief, our well-settled standard of

review is to ascertain “whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error.          The PCRA

court’s findings will not be disturbed unless there is no support for the findings

____________________________________________


1 On April 8, 2019, the PCRA court filed a memorandum opinion outlining its
reasons for its order dismissing Appellant’s petition for PCRA relief. Upon the
PCRA court’s subsequent receipt of Appellant’s 1925(b) Statement of Matters
Complained of on Appeal, on July 25, 2019, the PCRA court issued a
Memorandum Statement in Lieu of Opinion directing this Court to “the
memorandum opinion accompanying this court’s April 8, 2019 order.”
Memorandum Statement in Lieu of Opinion, 7/25/19, at unnumbered 1.



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in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191–192

(Pa. Super. 2013) (internal quotations and citations omitted).

       Appellant’s first claim is that the PCRA court erred in finding that the

Commonwealth did not commit a Brady violation.2 The U.S. Supreme Court

has held that “suppression by the prosecution of evidence favorable to the

accused . . . violates due process where the evidence is material either to guilt

or to punishment, irrespective of the good faith or bad faith of the

prosecution.”     Brady, 373 at 87.        To prove a Brady violation, it must be

shown that: “(1) the prosecutor has suppressed evidence; (2) the evidence,

whether exculpatory or impeaching, is helpful to the defendant; and (3) the

suppression prejudiced the defendant.”           Commonwealth v. Busanet, 54

A.3d 35, 48 (Pa. 2012) (quotation omitted).

       The basis of Appellant’s Brady claim is that the Commonwealth failed

to disclose that prior to Appellant’s trial, the Commonwealth entered into an

agreement with Greene, the chief prosecution witness, that Greene would

receive leniency regarding his outstanding felony charges in exchange for his

testimony against Appellant. Appellant avers that he became aware of the

agreement when his mother received a letter from Greene referencing Deputy

District Attorney Johnny Baer’s promises to him concerning those charges.



____________________________________________


2  We note that Appellant’s Brady claim alleges a violation of his due process
rights and does not assert that counsel was ineffective for failure to pursue
this claim. Appellant’s Brief at 11.

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       Before we discuss the possible merit of Appellant’s Brady claim, we

must determine if Appellant has waived appellate review of this issue. To be

eligible for relief under the PCRA, a petitioner must establish that his

allegations have not been previously litigated or waived.               42 Pa.C.S.

§ 9543(a)(3). An allegation is deemed waived “if the petitioner could have

raised it but failed to do so before trial, at trial, during unitary review, [or] on

appeal. . . .” 42 Pa.C.S. § 9544(b).

       A Brady claim may be subject to waiver if it could have been raised in

an earlier proceeding. Commonwealth v. Roney, 79 A.3d 595, 609 (Pa.

2013) (Brady claim waived when issue could have been raised at trial or on

direct appeal); See also Commonwealth v. Morris, 822 A.2d 684, 696 (Pa.

2003) (rejecting a Brady claim where the appellant did not make clear that

the information was not available at trial or that counsel could not have

uncovered it with reasonable diligence).

       In this matter, Appellant does not clarify when he became aware of the

facts supporting his Brady claim.3 Appellant’s pro se PCRA petition avers that

a Brady violation occurred when the prosecution failed to turn over

exculpatory evidence pertaining to Greene’s plea deal in exchange for his trial

testimony against Appellant.         Petition for Post-Conviction Collateral Relief,



____________________________________________


3  In his brief, Appellant for the first time represents that Greene’s letter was
a “recent post-appellate disclosure” but does not offer any facts supporting
this characterization. Appellant’s Brief at 11.

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1/29/14, at 2.      Appellant does not describe the exculpatory evidence or

identify when he knew of its existence. In both counseled amended petitions,

Appellant offers only vague and conflicting information concerning the timing

of the Greene disclosure. Appellant initially asserts that he was not made

aware of the offer of leniency to Greene “[p]rior to the trial,” see Amended

PCRA Petition, 8/17/15, at unnumbered 6; Second Amended PCRA Petition,

10/7/15, at unnumbered 6, then later claims that his mother received the

Greene letter “after [Appellant] was convicted.” See Amended PCRA Petition,

8/17/15, at unnumbered 15; Second Amended PCRA Petition, 10/7/15, at

unnumbered 15–16. In his brief in support of his PCRA petition, Appellant

repeats that Greene wrote to Appellant’s mother on an unspecified date

“following [Appellant’s] conviction.” Memorandum of Law in Support of PCRA

Petition, 11/9/18, at unnumbered 9.            The letter itself, a copy of which is

attached as an exhibit to both the amended petition and second amended

petition, is undated.4 See Amended PCRA Petition, 8/17/15, Exhibit A; Second

Amended PCRA Petition, 10/7/15, Exhibit A. Finally, at the PCRA hearing held

on October 8, 2018, Appellant did not testify to when he became aware of the

Greene letter. N.T., 10/8/18, at 36–38.          Although Greene was called as a


____________________________________________


4  On November 22, 2017, Appellant filed a “Motion for DNA Testing of
Envelope Which Contained Letter Allegedly From Eric Greene.” In this motion,
Appellant claims that the envelope, attached as Exhibit A, includes the date
that the envelope was mailed, but he does not identify that date. Motion,
11/22/17, at unnumbered 3. There is no discernable date on the copy of the
envelope attached as Exhibit A.

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witness at this hearing, he invoked his Fifth Amendment right and elected not

to testify. Id. at 4–5.

      As the above explanation reveals, the only consistent statement

regarding the date of the Greene letter is that it was received sometime after

Appellant’s conviction. Therefore, it follows that the letter might have been

disclosed during Appellant’s direct appeal period and it was incumbent upon

Appellant to demonstrate otherwise.       Because Appellant failed to indicate

when he became aware of the alleged Brady violation, the claim appears to

have been waived. Roney, 79 A.3d at 609. However, even if we were to

consider the substance of the claim, we would conclude that it lacks merit.

      In reviewing the alleged Brady violation, the PCRA court summarized

the germane facts as follows:

            [Appellant’s] third claim is that the Commonwealth
      committed a Brady violation when it failed to disclose an alleged
      agreement with Greene prior to [Appellant’s] trial, specifically,
      that Greene would receive leniency for his felony dockets in
      exchange for his testimony against [Appellant]. [Appellant]
      asserts that there was a letter allegedly written by Greene
      claiming that “Berry” (whom [Appellant] argues is Chief Deputy
      Attorney Johnny Baer) made promises to him before trial in
      exchange for his testimony, and that Attorney Baer followed
      through on such promises after trial.

            At trial, Greene testified that he had not received promises
      of benefits from the District Attorney prior to [Appellant’s] trial in
      exchange for his testimony.        At the PCRA hearing held on
      December 12, 2017, Attorney Baer testified that there was
      absolutely no agreement between the District Attorney and
      Greene ahead of [Appellant’s] jury trial regarding a plea deal in
      exchange for Greene’s testimony. Attorney Baer indicated that
      Greene was reluctant to testify, and had outstanding charges,
      including a firearm violation.

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                    Attorney Lysaght:[5] Now, given his reluctance
              to testify, as you intimated, did you or anyone from
              the District Attorney’s Office try to encourage his
              testimony by offering him a plea deal in return for his
              testimony before trial? Such that, hey, if you testify
              as you’ve told us that you’re going to implicate
              [Appellant] that we’ll cut you a break on your
              outstanding charges?

                   ATTORNEY BAER: No. We had no specific
              conversation with the resolution of his charges.

                    ATTORNEY LYSAGHT: In your memory did he
              ask you for a deal?

                      ATTORNEY BAER: He did not.... And let me
              give you a complete answer to that. They came up.
              I mean, naturally any time any witness has criminal
              charges and they’re preparing to testify, that’s going
              ... to come up. And it usually comes up in the context
              of what’s going to happen to my charges? And I think
              that that was his line of inquiry. What’s going - what
              can you do about this more than asking more
              specifically what’s going to happen.

                   ATTORNEY LYSAGHT: And did you respond in
              any way to that question?

                     ATTORNEY BAER: Yeah, I respond to every
              inquiry I get along the way . . . the same way, which
              is we’ll talk about it when it[’]s done.

                   ATTORNEY LYSAGHT: Okay. So, again, to beat
              a dead horse, your testimony is that you did not enter
              into a plea deal for his testimony ahead of
              [Appellant’s] trial?

                    ATTORNEY BAER:         Correct.   There was no
              agreement. There was no specific discussion about
              his-about the resolution of his charges. His reluctance
____________________________________________


5 Ryan H. Lysaght, Dauphin County Deputy District Attorney, represented the
Commonwealth at the PCRA hearing.

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            really had nothing to do with the pending criminal
            charges. His reluctance was solely being concerned
            about being a witness in a murder trial.

                  ATTORNEY LYSAGHT: Being a snitch?

                  ATTORNEY BAER:        Being a snitch.         His
            reputation and whatever allegiance he still felt toward
            [Appellant].

             [Appellant] claims that the letter allegedly written by
      Greene states that he expected leniency and did receive leniency.
      At the October 8, 2018 PCRA hearing, [Appellant] called Khody
      Detwiler, a handwriting expert/or forensic document examiner,
      who testified that, to a reasonable degree of professional
      certainty, Greene was the author of the letter. When called to
      testify regarding the letter that he allegedly authored, Greene
      invoked his Fifth Amendment right against self-incrimination,
      which [Appellant] accepted without objection. [Appellant] claims
      that it is not known what was specifically discussed between
      Greene and the DA’s office, but there is “clear evidence” that
      whatever was discussed led Greene to believe he would receive
      leniency for his cases, which he actually received.

             Based on the trial testimony and PCRA hearing testimony, a
      Brady violation has not been established. The record simply belies
      this claim, as there is no evidence that a deal had been made. In
      fact, the testimony of both Greene and Attorney Baer directly
      contradict this assertion.

PCRA Court Opinion, 4/8/19, at 6–8 (footnote and record references omitted).

      Appellant argues that the Greene letter established that “the District

Attorney’s Office had, in actuality, promised [Greene] favorable treatment

before he testified.” Appellant’s Brief at 11. This underlying premise is flawed.

The relevant sentences in the undated Greene letter read: “Point blank

simple. Berry promised me a few things and kept his word on his promises.”

Second Amended PCRA Petition, 10/7/15, Exhibit A. There is no mention of


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the timing of the alleged promises; therefore, Appellant’s assertion that they

were offered prior to Greene’s trial testimony against Appellant has no

evidentiary support. Second, the only indication that the “Berry” referenced

in the letter was in fact Deputy District Attorney Baer was elicited from

Appellant’s testimony at the PCRA hearing:

            Q. Did you actually see the actual letter that was allegedly
      written by Mr. Green[e]?

            A. Yes.

           Q. And in that letter, does it purport that Mr. Green[e] was
      promised something in exchange for his testimony?

             A. Yes. It says that Berry—which we had a—we got into a
      spat about that a few hearings ago that we were going to refer to
      John Baer—promised me something, came through as a promise.
      That’s what I was mentioning when I was stating Johnny Baer
      testified to him telling Mr. Green[e] he’ll get back to his pending
      matters, which he ultimately did after my conviction by relaying
      his cooperation to his prosecuting attorney from the same office.

N.T. (PCRA Hearing), 10/8/18, at 38. As noted by the PCRA court, Appellant

argued that “Berry” is Chief Deputy Attorney Johnny Baer, however, there was

no corroborating evidence in the record clarifying “Berry’s” identity.

      Likewise, Appellant’s assertion that the testimonial evidence of

Attorney Baer confirms the existence of an undisclosed implied agreement for

leniency is unsubstantiated.   Rather, upon review, we conclude the record

supports the PCRA court’s finding that Greene was not promised leniency in

exchange for his testimony against Appellant. See, N.T. (Trial) 10/5/11, at

359 (wherein Greene testifies that he had not cut a deal for reduced charges


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with the Commonwealth, but was hoping for some help with his outstanding

charges); N.T. (PCRA) 12/12/17, at 38-40 (where Deputy District Attorney

Baer states that there was no pretrial agreement promising Greene leniency

in exchange for Greene’s testimony against Appellant).

      Appellant next alleges issues of ineffectiveness of trial counsel.     To

obtain relief on a claim of ineffectiveness of counsel, a PCRA petitioner must

satisfy the performance and prejudice test set forth in Strickland v.

Washington, 466 U.S. 668 (1984). In Pennsylvania, we have applied the

Strickland test by requiring that a petitioner establish that:         (1) the

underlying claim has arguable merit; (2) no reasonable basis existed for

counsel’s action or failure to act; and (3) the petitioner suffered prejudice as

a result of counsel’s error, with prejudice measured by whether there is a

reasonable probability that the result of the proceeding would have been

different.   Commonwealth v. Solano, 129 A.3d 1156, 1162 (Pa. 2015)

(quoting Commonwealth v. Keaton, 45 A.3d 1050, 1060 (Pa. 2012)

(internal citations omitted)). If a claim fails under any required element of

the Strickland test, the court may dismiss the claim on that basis.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). Counsel

is presumed to be effective, and the burden of demonstrating ineffectiveness

rests on the appellant. Id.

      Appellant first claims that counsel was ineffective for failing to

investigate, interview, and present character witnesses on his behalf.


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Appellant’s Brief at 20. To succeed on an ineffectiveness claim for the failure

to call a potential witness:

            a petitioner satisfies the performance and prejudice
            requirements of the [ineffective assistance of counsel]
            test by establishing that: (1) the witness existed; (2)
            the witness was available to testify for the defense;
            (3) counsel knew of, or should have known of, the
            existence of the witness; (4) the witness was willing
            to testify for the defense; and (5) the absence of the
            testimony of the witness was so prejudicial as to have
            denied the defendant a fair trial.

      Commonwealth v. Sneed, 616 Pa. 1, 45 A.3d 1096, 1108-09
      (2012) (citations omitted)

      Prejudice in this respect requires the petitioner to “show how the
      uncalled witnesses’ testimony would have been beneficial under
      the circumstances of the case.” Therefore, the petitioner’s burden
      is to show that testimony provided by the uncalled witnesses
      “would have been helpful to the defense.”

      Commonwealth v. Williams, 636 Pa. 105, 141 A.3d 440, 460
      (2016) (quotations and citation omitted).

Commonwealth v. Selenski, ___ A.3d ___, ___, 2020 PA Super 22, *4–5

(Pa. Super. filed February 4, 2020).

      The trial court resolved this issue, as follows:

             Attorney [William] Shreve, [Appellant’s] prior PCRA counsel,
      testified that [Appellant] indicated to him that he did not present
      potential character witnesses to his trial attorney, Mr. McQuillan.
      Attorney McQuillan testified at a later hearing that while he did
      not recall a specific conversation with [Appellant], it is normally
      his practice to discuss calling character witnesses prior to trial.
      However, he stated that [Appellant] never presented him with
      “person A, B, or C” that he would like to call as a character
      witness. Attorney McQuillan also testified that he did not believe
      it was a plausible strategy to call character witnesses. Specifically,
      [Appellant] had robbed someone (Justin Williams) by force earlier
      in the day in question; he pistol-whipped the victim. [Appellant’s]

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      violent and dishonest nature had been established and counsel
      had no basis upon which to introduce good character evidence.

            At the December 12, 2017 PCRA hearing, [Appellant] called
      Angela Doyle, Bernadette Wyatt, and Linwood Johnson; each of
      them offered testimony as to [Appellant’s] peaceful, nonviolent
      nature. Additionally, they indicated that they would have been
      available to testify had they been asked. [Appellant] admitted at
      the PCRA hearing that he did not provide his trial counsel with
      specific names and addresses of character witnesses, but claimed
      that he provided Attorney McQuillan with his mother’s address
      because the witnesses that wanted to testify lived on or near her
      street.

             Despite the testimony of the character witnesses at the
      PCRA hearing, based on the evidence of record, [Appellant] did
      not inform defense counsel of the existence of witnesses to testify
      as to his good character. Trial counsel did not see it as a plausible
      strategy and, even had he been informed of such witnesses, the
      outcome of the case would not have been altered in light of the
      trial testimony.

PCRA Court Opinion, 4/8/19, at 9–10 (record references omitted).

      On appeal, Appellant challenges the PCRA court’s finding that Appellant

and trial counsel did not discuss the topic of character witnesses. In support,

Appellant references his uncorroborated and imprecise PCRA hearing

testimony   referring   to   certain   “request   slips   and   letters   sent   to

counsel . . . and were actually possessed on the stand by the Appellant.”

Appellant’s Brief at 20.     However, no evidence of these letters or slips

indicating Appellant’s communication with his trial counsel about potential

character witnesses was introduced at the PCRA hearing.              Additionally,

Appellant’s prior pleading belies his PCRA testimony that he informed counsel

of the availability of character witnesses.       See Petitioner’s Response to


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Counsel’s Motion to Withdraw, 10/23/14, at 1 (“[C]ounsel had failed to inform

him of his right to call character witnesses and that, if he had been informed

of this right, he would have given trial counsel the names of several witnesses

who would have been available to testify that he had a good reputation . . . .”).

Attorney Shreve’s testimony at the PCRA hearing confirmed that Appellant

and trial counsel did not discuss character witnesses, specifically, “[Appellant]

indicated to me that he did not present character witnesses to his trial

attorney, Mr. McQuillan.” N.T. (PCRA), 2/21/17, at 5. Therefore, the record

supports the trial court’s finding that Appellant did not inform trial counsel of

the existence of witnesses to testify as to his peaceful nature and we will not

disturb this finding on review.

      Furthermore, assuming arguendo that Appellant could establish that

trial counsel was aware of availability of character witnesses, we cannot

conclude, as Appellant maintains, that counsel’s failure to present this

testimony was prejudicial because there is not “a reasonable probability that

the outcome of the proceedings would have been different.” Commonwealth

v.   Hull,   982   A.2d   1020,   1022–1023    (Pa.   Super.   2009)    (quoting

Commonwealth v. Harris, 972 A.2d 1196, 1203 (Pa. Super. 2009)). Trial

counsel explained that presenting character witnesses would not have been

“a plausible defense strategy” in light of the testimony that Appellant, on the

same day as Dawson’s murder, had robbed another individual by force. N.T.

(PCRA), 7/7/17, at 8–9. In addition, these proposed witnesses would not have


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negated the substantial evidence implicating Appellant in both the pistol-

whipping and robbery of Williams and the shooting of Dawson a few hours

later.    For this reason, we conclude that the PCRA court did nor err in

determining that the outcome of the trial would be unchanged if counsel

presented character witnesses.

         Appellant’s next allegation of ineffectiveness concerns trial counsel’s

failure to request an accomplice liability instruction. Appellant’s theory is that

the fact that the video from the Crown Chicken’s surveillance camera shows

both Appellant and Greene and, because there was a subsequent shooting

near the restaurant, “a strong inference could be made . . . that [Appellant]

and [Greene] were together and may have been involved with criminal

activity.” Appellant’s Brief at 25.

                    It is well settled that whether to request
              additional points for charge is one of the tactical
              decisions “within the exclusive province of counsel.”
              Commonwealth v. Sullivan, 450 Pa. 273, 299 A.2d
              608, 610 (1973), cert. denied, 412 U.S. 923, 93 S.Ct.
              2745, 37 L.Ed.2d 150 (1973). We should not invade
              that province and declare counsel ineffective if any
              reasonable basis for counsel’s decision existed at the
              time of trial. Commonwealth v. Maroney, 427 Pa.
              599, 235 A.2d 349 (1967).         Rather, we should
              scrupulously follow the presumption that attorneys act
              in the interests of their clients, and insist that
              Appellant meet his burden of proving that his
              attorneys had no reasonable basis for their action.
              See, e.g., Commonwealth v. Watson, 523 Pa. 51,
              65, 565 A.2d 132, 139 (1989).

         Commonwealth v. Derk, 553 Pa. 325, 719 A.2d 262, 265 (1998).




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                   [T]he standard charge for accomplice testimony
            [is] commonly referred to as the corrupt and polluted
            source charge. [“I]n any case where an accomplice
            implicates the defendant, the judge should tell the
            jury that the accomplice is a corrupt and polluted
            source whose testimony should be viewed with great
            caution.” ... “If the evidence is sufficient to present a
            jury question with respect to whether the
            prosecution's witness was an accomplice, the
            defendant is entitled to an instruction as to the weight
            to be given to that witness's testimony.”

      Commonwealth v. Smith, 609 Pa. 605, 17 A.3d 873, 906 (2011)
      (citations omitted). “The ‘corrupt source’ charge in particular is
      designed specifically to address situations where one accomplice
      testifies against the other to obtain favorable treatment. It directs
      the jury to view the testimony of an accomplice with disfavor and
      accept it only with care and caution.” Id.

Commonwealth v. Lawrence, 165 A.3d 34, 44–45 (Pa. Super. 2017)

(footnote omitted).

      The trial court dismissed this allegation of ineffectiveness on the

following basis:

             [Appellant’s] trial counsel, Attorney McQuillan, testified at
      the PCRA hearing held on July 7, 2017. He confirmed that he did
      not argue an accomplice theory because the theory and defense
      strategy was that Greene acted alone. There can be no dispute
      that Greene was a critical witness who incriminated [Appellant].
      However, seeking such an instruction would have directly
      conflicted with counsel’s trial strategy. The accomplice instruction
      would have led to [Appellant’s] own culpability instead of
      [extricating] him from criminal conduct. [Appellant’s] theory of
      the case, which was argued throughout the trial, was that Greene
      was the lone shooter. Giving such an instruction would have, at
      the very least, confused the jury by sending mixed messages.
      There was no evidence presented at trial that [Appellant] and
      Greene were accomplices. Consequently, it cannot be said that
      counsel had no reasonable basis for refraining from requesting
      this instruction. Rather, this decision was in line with counsel’s
      strategy and for any hope of an acquittal.

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PCRA Court Opinion, 4/8/19, at 4–5 (record references omitted).

      As the PCRA court observed, Appellant’s trial defense was that Greene,

and not Appellant, was the shooter. Thus, the PCRA court’s legal conclusion

that requesting a corrupt source instruction would be in direct conflict with

Appellant’s defense theory is legally sustainable.

      Apparently recognizing the futility of an argument that a polluted source

instruction would undermine the defense tactic in this case to identify Greene

as the shooter, Appellant now claims that the defense theory was that “Greene

might have been testifying to avoid being charged with murder.” Appellant’s

Brief at 26.   We do not view this characterization as undermining the

conclusion that a polluted source instruction would contradict the defense

strategy and confuse the jury. To the contrary, the information that Greene

was concerned that he might be charged with murder in this matter, see N.T.

(Trial), 10/5/11, at 368 (wherein Greene testified that he initially lied to the

police regarding knowledge of Dawson’s shooting because “I was scared I

might get charged with something I had nothing to do with”) actually

strengthens the theory that Greene was the shooter.

      In any event, Pennsylvania courts have recognized a reasonable

strategy in trial counsel’s decision to forego requesting a corrupt source

charge where the instruction is inconsistent with an assertion that the

defendant has not committed the crime in question. See Commonwealth v.

Karabin, 426 A.2d 91, 93 (Pa. 1981) (reasonable tactic to forego corrupt


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source instruction against girlfriend witness when defendant advanced

innocence defense and alleged that jealousy motivated girlfriend to testify

falsely), and Commonwealth v. Williams, 732 A.2d 1167, 1182 (Pa. 1999)

(1981) (finding trial counsel not ineffective for failing to request accomplice

instruction where it would contradict defense that defendant was not present

at the scene of or involved in the killing). We likewise recognize a reasonable

basis for trial counsel’s strategy to deny an accomplice relationship between

Appellant and Greene. Accordingly, the PCRA court correctly denied Appellant

relief on this claim.

      Appellant’s final claim is that trial counsel was ineffective for failing to

request a crimen falsi jury instruction regarding the prior criminal convictions

of witnesses Williams and Greene.         The trial court concluded that this

ineffectiveness allegation was without merit based on the following rationale:

      Where the Commonwealth preemptively raises the issue of a
      witness’ crimen falsi, there is no obvious benefit to counsel raising
      it again. See Commonwealth v. Treadwell, 911 A.2d 987, 992
      (Pa. Super. 2006) (noting that the Commonwealth also raised the
      fact that the witness was on probation for a non crimen falsi
      conviction and faced pending drug related charges at trial, and
      counsel was not ineffective for failing to raise the point again).
      Greene’s crimen falsi convictions were emphasized to the jury
      many times, including during argument and cross-examination.
      [Appellant] highlighted the fact that Greene openly admitted to
      lying to the detectives, that his oath meant nothing, that he had
      open criminal charges, and wanted a deal for his testimony.
      However, the video from the restaurant on the night in question
      corroborated Greene’s testimony despite his dishonest nature. It
      cannot be established that the result would be different had the
      instruction been included. The jury was advised of the criminal
      history involving the crimen falsi, and the [c]ourt instructed the
      jury to weigh the evidence and consider credibility.

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PCRA Court Opinion, 4/8/19, at 10–11 (record references and footnotes

omitted).

      We recently addressed a similar claim of counsel ineffectiveness.       In

Commonwealth v. Cole, ___ A.3d ___, 2020 PA Super 12, *6 (Pa. Super.

filed January 24, 2020), the appellant contended that his trial counsel was

ineffective because he did not request a jury instruction regarding a witness’s

crimen falsi convictions.    After determining that the appellant’s claim had

arguable merit, we discussed whether counsel’s assertion that his failure to

request the instruction was reasonable because the Commonwealth had

preemptively pointed out the witness’s crimen falsi crimes. We rejected the

concept that counsel acted reasonably because the authority he cited in

support, Commonwealth v. Treadwell, 911 A.2d 987, 992 (Pa. Super.

2006), was not controlling, to wit, “[a]ppellant is not challenging counsel’s

failure to admit [the witness’s] crimen falsi convictions; rather, he is alleging

that counsel acted ineffectively by not requesting an instruction regarding that

evidence.” Cole, ___ A.3d at ___, 2020 PA Super 12 at *4.

      Based upon the teaching in Cole, we find that Appellant’s claim of

ineffectiveness in regard to the crimen falsi instruction has arguable merit.

We further find that trial counsel did not have a reasonable basis for foregoing

a request for the instruction. At the PCRA hearing, trial counsel could not

justify his failure to request the instruction:

            Q. One of the issues that [Appellant] raised was that the
      [c]ourt should have given an instruction to the jury as to how prior

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J-S73006-19


     crimen falsi convictions affect credibility. Do you know why [you]
     didn’t request that instruction?

             A. I don’t know why. I normally would request a crimen
     falsi instruction because I brought it to light. So on that one, if it
     was not, I don’t know. I don’t have an answer to that.

                                    * * *

           Q. Was there any tactical or strategic reason for not doing
     so?

           A. No.

           Q. You agree that it would have been beneficial had it been
     given or could have been beneficial to request it for your client?

                                    * * *

           THE WITNESS: It may have been beneficial. It certainly
     couldn’t have hurt, and I normally -- again, my practice would be
     to request that crimen falsi because I brought it to light with two
     of the main witnesses.

N.T. (PCRA), 7/7/17, at 29–31. Counsel’s acknowledgment that there was no

strategic reason for not requesting the crimen falsi instruction negates any

argument that he acted reasonably in this regard.

     We thus assess whether Appellant was prejudiced by counsel’s conduct.

Appellant contends:

           The standard jury instructions, Section 4.08D, instruct the
     jury that the only purpose for which they may consider the
     evidence of a prior conviction is whether or not to believe all or
     part of the witness’ testimony. See Pa. SSJI (Crim), § 4.08D
     (2016). The jury may consider the type of crime committed, how
     long ago it was committed, and how it may affect the likelihood
     that the witness has testified truthfully in this case. Id.

                                    * * *


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J-S73006-19


       As a jury is presumed to follow the trial court’s instructions, this
       instruction obviously would be helpful and it could be reasonably
       concluded that it made a difference in the outcome of the
       case. . . . Jury instructions exist for a reason. If the jury were to
       follow the instruction that notes that “the only purpose for which
       you may consider this evidence of prior convictions is in deciding
       whether or not to believe all, part, or none of Mr. Williams’ and
       Mr. [Greene’s] testimony” there is a reasonable prospect that their
       testimony would have been wholly rejected and not believed.

             This point is critical. If the jury following that instruction
       decided not to believe all of Mr. [Greene’s] testimony, [Appellant]
       would have been acquitted. If Mr. [Greene] was not believed,
       then there would be insufficient evidence to convict. It is as
       simple as that. Thus, the failure to request this instruction caused
       prejudice as such an instruction likely would have resulted in the
       jury collectively deciding not to believe any of Mr. [Greene’s]
       testimony.

Appellant’s Brief at 28–30.

       Appellant’s argument is viable; therefore, we consider whether the

position of the Commonwealth and the PCRA court that defense counsel’s

emphasis throughout the trial on Greene’s criminal history and his penchant

for lying to law enforcement dispels the notion that Appellant was prejudiced

by the exclusion of the crimen falsi instruction.6 We again turn to Cole to

guide our analysis. Therein, the Commonwealth and PCRA court argued that

Appellant was not prejudiced by the omitted instruction because the trial court

issued a general instruction on assessing witness credibility. We disagreed,

concluding instead that “the court’s general instructions on witness credibility,


____________________________________________


6  Although Appellant notes that witness Williams had extensive crimen falsi
convictions, he does not contend that the jury’s possible rejection of his
testimony for credibility reasons would have impacted the guilty verdict.

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J-S73006-19


provided at the beginning and end of Appellant’s trial, were not sufficient, as

they at no point addressed the specific issue of [the witness’s] crimen falsi

crimes.”    Cole, ___ A.3d at ___, 2020 PA Super 12 at *5 (citing

Commonwealth v. LaMassa, 532 A.2d 450, 451 (Pa. Super. 1987)). The

Court then discussed the PCRA court’s rationale that the appellant was not

prejudiced because it explained crimen falsi when [the witness] testified. We

likewise rejected this justification because it was not supported by the record.

Id. We observed:

      The only statement to which the court could be referring was a
      ruling on defense counsel’s objection to the Commonwealth’s
      asking [the witness] why she was “doing these retail thefts[.]” In
      overruling the objection, the court remarked, “It’s fair background
      for the witness’[s] credibility.” The court did not explain, in this
      statement, the relevancy of [the witness’s] crimen falsi offenses,
      nor instruct the jury on how that evidence could be considered in
      assessing her credibility.

Id. (record references omitted).

      In contrast to Cole, there is support in the instant record that the jury

heard that Greene committed crimen falsi crimes and that these crimes called

his credibility into question.   In his opening statement, defense counsel

explained to the jury why it would hear about Greene’s prior criminal record:

      [Greene’s] the most important guy, and we want to evaluate his
      credibility. . . . His credibility will be scrutinized by you from the
      stand. And the reason you’re able to hear about his prior record
      is because it goes to his credibility. Those are crimes, what are
      called crimen falsi, means crimes of dishonesty.

N.T. (Trial), 10/4/11, at 55. During his cross-examination, defense counsel

questioned Greene about both his prior criminal record and the charges

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J-S73006-19


pending against him at the time of trial. N.T. (Trial), 10/5/11, at 355–356.

Also, upon questioning from defense counsel, Greene twice admitted lying to

the detectives investigating Dawson’s murder. Id. at 362, 364. Finally, in his

closing   argument,     defense   counsel   re-emphasized   that   Greene   was

untrustworthy:

      [H]e has lied at every stage of this investigation. He’s lied from
      the beginning and I think—and I’m certain he lied yesterday about
      certain things. And he lied every step in between. Why do I bring
      up the fact that he has been convicted of theft by unlawful taking,
      attempted burglary, criminal conspiracy, theft by unlawful taking,
      criminal conspiracy to commit burglary, burglary, and theft by
      receiving stolen property, all by the time he was 17 years old?
      Because it goes to his credibility. Those are crimes of dishonesty.
      They’re called crimen falsi, meaning that the core of those crimes
      is dishonest behavior.

N.T. (Trial), 10/6/11, at 478.

      Considering defense counsel’s statements to the jury that Greene’s

convictions of crimen falsi crimes implicated his credibility, we conclude that

Appellant cannot establish prejudice based upon the missing jury instruction.

Accordingly, Appellant is not entitled to relief on this allegation of

ineffectiveness.

      For all of the above reasons, we affirm the PCRA court’s order denying

Appellant’s PCRA petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/27/2020




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