J-S37010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 DARRIAN DEANS                          :
                                        :
                   Appellant            :   No. 3082 EDA 2017

                Appeal from the PCRA Order August 15, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0007584-2007


BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                     FILED SEPTEMBER 19, 2019

      Darrian Deans appeals from the August 15, 2017 order dismissing his

PCRA petition without a hearing. After thorough review, we affirm.

      The facts underlying the convictions were summarized by this Court on

direct appeal:

            On October 2, 2006, William Hilton and Darnell DeLoatch
      were talking on the 1700 block of South 55th Street in
      Philadelphia. At approximately 8:30 p.m., two men, both with
      handguns, approached the pair. They opened fire, and both Hilton
      and DeLoatch were shot multiple times. Both men died from their
      wounds. Elissa Carter, who lived right across the street from
      where the shootings took place, was later able to identify
      [Appellant] as one of the perpetrators. In addition, various
      neighbors gave testimony identifying [Appellant] and his co-
      defendant, Ronsean Johnson, as perpetrators of the crimes.

Commonwealth v. Deans, 981 A.2d 915 (Pa.Super. 2009) (unpublished

memorandum at 1). The record reveals further that a young woman, J.W.,
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testified that Appellant admitted to her that he and “his bull” 1 killed “Keem’s

cousins.”2 N.T. Trial (Jury), 2/20/08, at 80.

       In February 2008, Appellant and Johnson were tried together and the

jury found them both guilty of two counts of first-degree murder and one

count of criminal conspiracy.            The court sentenced Appellant to two

consecutive life sentences on the murder convictions and a consecutive term

of ten to twenty years of imprisonment on the conspiracy charge. This Court

affirmed judgment of sentence on direct appeal.           Deans, supra.       The

Supreme Court denied allowance of appeal. Commonwealth v. Deans, 40

A.3d 120 (Pa. 2012).

       Appellant filed this timely pro se PCRA petition on August 21, 2012, and

counsel was appointed. Appellant filed a pro se amended PCRA petition on

May 27, 2015.       Thereafter, counsel was permitted to withdraw, and new

counsel was appointed to represent Appellant. Counsel filed a Turner/Finley

no-merit letter on April 10, 2017, and a motion to withdraw. After conducting

its review of the no-merit letter and the certified record, the trial court issued

Pa.R.Crim.P. 907 notice of its intention to dismiss the petition without an

evidentiary hearing.      Appellant filed a response, following which the court

dismissed the petition and granted counsel’s motion to withdraw.


____________________________________________


1 The term “bull” was interpreted as “friend.” See N.T. (Motion), 2/13/08,
at 4.

2   We use initials as J.W. was a minor at the time of the events herein.

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     Appellant timely appealed and complied with the PCRA court’s order to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

He presents nine issues that we have re-ordered for ease of disposition:

     I.     Was defense counsel constitutionally ineffective in not
            challenging the Commonwealth’s use of [J.W.’s] testimony
            as “other crimes evidence[?]”

     II.    Whether trial counsel was ineffective for failing to oppose
            the Commonwealth’s use of [J.W.’s] testimony as
            extraneous evidence of another crime, and the
            Commonwealth’s use of this extraneous evidence to form
            the basis of the affidavit of probable cause to arrest and
            seize items from Appellant’s home[?]

     III.   Was defense counsel constitutionally ineffective in not
            moving for severance because of other crimes implications
            that tended to prejudice [Appellant] and co[-]defendant[?]

     IV.    Was defense counsel constitutionally ineffective in not
            challenging the admissibility of [D.D.]’s testimony[?]

     V.     Was defense counsel constitutionally ineffective in failing to
            challenge the authenticity of the photos unlawfully seized
            from [Appellant’s] house[?]

     VI.    Was defense counsel constitutionally ineffective in failing to
            object and raise on direct appeal issues of prosecutorial
            misconduct[?]

     VII.   Was defense counsel constitutionally ineffective for failing to
            call [Appellant’s] alibi witnesses and lying to witnesses and
            [Appellant], as to what each one said to the other
            constituting a fraud on court[?]

     VIII. Is [sic] the affidavits from Hakeem Harris and Latanya
           McKoy evidence, when affidavits exonerate [Appellant] from
           crime and or exclude evidence from being introduced, and
           also prove Atty. Hoof frauded on court[?]

     IX.    Did PCRA court err in dismissing PCRA petition where
            Appellant [should be] considered a child by the

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            Commonwealth due to being on juvenile probation until age
            of 21[?] At the time of this offense [Appellant] was 20 years
            old, and on juvenile probation.

Appellant’s brief at 1-2.

      Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Lane, 81 A.3d 974, 977 (Pa.Super. 2013).         “The PCRA court’s credibility

determinations, when supported by the record, are binding on this Court;

however, we apply a de novo standard of review to the PCRA court's legal

conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014).

      Most of Appellant’s issues on appeal are claims of ineffective assistance

of counsel. In order to prevail on such a claim, a defendant “must show, by a

preponderance of the evidence, ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.”   Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa.Super.

2007) (citation omitted).   As we recently reiterated in Commonwealth v.

Sandusky, 203 A.3d 1033, 1043-44 (Pa.Super. 2019), in order to prove

ineffectiveness, the petitioner has the burden of establishing all three of the

following prongs: “(1) the underlying claim is of arguable merit; (2) that

counsel had no reasonable strategic basis for his or her action or inaction; and

(3) but for the errors and omissions of counsel, there is a reasonable



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probability that the outcome of the proceedings would have been different.”

Id. “A failure to satisfy any prong of the ineffectiveness test requires rejection

of the claim of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409,

419 (Pa. 2009).

      A claim has arguable merit when the factual averments, if true, would

entitle the petitioner to relief. See Commonwealth v. Jones, 876 A.2d 380,

385 (Pa. 2005). This is a legal question. The test for determining whether

counsel had a reasonable basis for his action is an objective one: whether no

competent counsel would have chosen that course or, the alternative not

chosen offered a significantly great likelihood of success. Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa.Super. 2013). In order to establish prejudice,

a petitioner must demonstrate a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different.            Id.   “A

reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. If a petitioner fails to satisfy the prejudice prong, “the

claim may be dismissed on that basis alone and the court need not first

determine    whether    the   first   and   second   prongs   have    been    met.”

Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007).

      Appellant claims first that trial counsel was ineffective in failing to object

to J.W.’s testimony as “other crimes evidence” inadmissible under Pa.R.E.

404(b). J.W. testified, inter alia, that Appellant pointed a gun at her and asked

her what she knew about the murders, i.e., “people being killed in Southwest


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Philly a month or two before?” N.T. Trial (Jury), 2/20/08, at 80. When she

denied knowledge, he told her that “Keem” owed him money and that he and

“his bull” had murdered Keem’s two cousins. Id.

      The Commonwealth points out that trial counsel filed a motion in limine

to exclude the foregoing testimony as impermissible “other crimes” evidence

that improperly showed his propensity to commit criminal acts and that he

acted in accordance therewith. See Pa.R.E. 404(b). Following argument, the

motion was denied. See N.T. (Motion), 2/13/08, at 10. More importantly,

the Commonwealth maintains that although evidence that Appellant pointed

a gun at J.W. was evidence of another crime, it was highly relevant in

establishing that Appellant had access to a gun.        Moreover, Appellant’s

statement that he and “his bull” killed two people was not other crimes

evidence, but an admission of guilt of the crimes for which he was on trial.

      The record confirms that trial counsel filed a motion in limine based on

Rule 404(b) to exclude this evidence. See N.T. Pre-Trial Motions, 2/13/08, at

3-11. Thus, the factual predicate of Appellant’s ineffectiveness claim fails.

Hence, there is no arguable merit in Appellant’s contention that counsel was

ineffective in this regard, and no relief is due.

      Appellant alleges next that counsel was ineffective for failing to

challenge the Commonwealth’s use of J.W.’s information to establish probable

cause to arrest him and search his home. We construe this argument as a

claim that counsel should have moved to suppress the evidence obtained from


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the search of his home based on a lack of probable cause for the search

warrant. Appellant appears to argue that J.W.’s statement was inadmissible

evidence, and therefore, it could not be used by police to support the showing

of probable cause for the search warrant.

      J.W. told police that Appellant pointed a gun at her in his home, and

further, he admitted his participation in the killings. There is no requirement

that information constitute admissible evidence in order to serve as basis for

probable cause.     See Commonwealth v. Woosnam, 819 A.2d 1198

(Pa.Super. 2003) (holding an affidavit for probable cause can be founded on

hearsay). The affidavit need only contain information sufficient to persuade a

reasonable person that probable cause existed to conduct a search. Id. The

issuing authority views the information in a common sense manner to

determine the fair probability of criminal activity and that contraband or

evidence of a crime will be found in a particular place. Id.

      As the PCRA court aptly noted, counsel had no basis to attack the

sufficiency of the affidavit of probable cause based on information gleaned

from J.W.’s statement. Appellant’s incriminating statement that he killed two

people was, in the trial court’s view, “the epitome of facts upon which probable

cause may be established.”         PCRA Court Opinion, 11/13/17, at 7.

Furthermore, Appellant does not allege or offer to prove that the affiant,

Detective Charles Boyle, did not have a good faith belief in the truth of that

information.   The court found that the affiant “rightly included” J.W.’s


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information in the affidavit, and furthermore, that the statement supported a

finding of probable cause for the search warrant for Appellant’s home.3 We

find no showing of arguable merit to support a claim of counsel ineffectiveness

in this regard, and thus, this claim fails.

       Appellant was tried with his co-defendant Ronsean Johnson.4 Appellant

claims that counsel was ineffective in failing to move for severance as their

defenses were antagonistic.         In support thereof, he points to the court’s

exclusion of evidence that one of the victims robbed his co-defendant and that

his co-defendant wanted revenge. In addition, he alleges that since J.W.’s

statement linked the two men together, its admission was prejudicial to his

co-defendant.

       The Commonwealth counters that severance was not warranted herein

and counsel was not ineffective for failing to request it. Commonwealth’s brief

at 13.   According to the Commonwealth, the crimes charged against both

defendants arose out of the same facts, much of the same evidence was

applicable to both, and judicial economy was promoted by eliminating the

duplication of separate proceedings. Furthermore, conspiracy was charged,



____________________________________________


3  The court noted that even if that information had been excluded, “the
information from [J.W.] that defendant committed a rape . . . established
probable cause to search defendant’s residence. N.T. Pre-Trial Motions,
2/13/08, at 16.

4 Ronsean Johnson is also known as Ronsean Jackson and Sean Jackson.
Throughout the trial, he was referred to as Mr. Jackson.

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and generally, conspiring co-defendants should be charged together.        The

Commonwealth contends that this was not a situation where the co-

defendants’ defenses were so antagonistic as to be irreconcilable and result in

prejudice if pursued at a joint trial. Commonwealth v. Lambert, 603 A.2d

568, 573 (Pa. 1992).

      The PCRA court noted first that joint trials of co-defendants are favored

in Pennsylvania, especially where the crimes charged arise out of the same

facts and the majority of the evidence is admissible against both co-

defendants.   PCRA Court Opinion, 11/13/17, at 10-11 (and cases cited

therein). Second, it reasoned that severance should be granted only where

the defenses of each are so antagonistic as to be irreconcilable. Id. at 11

(citing Commonwealth v. Williams, 720 A.2d 679, 685 (Pa. 1998). Our

Supreme Court defined “irreconcilable defenses” in Commonwealth v.

Brown, 925 A.2d 147, 162 (Pa. 2007): “the jury essentially would be forced

to disbelieve the testimony on behalf of one defendant in order to believe the

defense of his co-defendant.”   The PCRA court reasoned that the fact that

Appellant’s co-defendant may have had a motive to kill one of the victims did

not establish a defense for Appellant or cause the jury to choose between

conflicting defenses. PCRA Court Opinion, 11/13/17, at 12. In addition, the

court noted that a defendant must demonstrate actual prejudice from the joint

trial, which Appellant did not do. Id. The fact that J.W.’s testimony may have

prejudiced Appellant’s co-defendant did not provide a basis to sever as J.W.’s


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testimony did not provide a defense for co-defendant Johnson or exculpate

him in the shootings. Id. We find no error or abuse of discretion in the PCRA

court’s determination that Appellant failed to demonstrate arguable merit or

prejudice in support of his claim that counsel was ineffective in failing to seek

severance.

      Next, Appellant claims his counsel was ineffective for failing to object to

the testimony of a thirteen-year-old eyewitness, D.D., on competency

grounds. D.D. was eleven years old when he witnessed the murders, and he

identified Appellant as the shooter shortly thereafter.

      The record reveals that co-defendant Johnson challenged the admission

of D.D.’s testimony on competency grounds, and a hearing was held outside

the presence of the jury. N.T. Trial (Jury), 2/19/08, at 161-68. The trial court

determined that D.D. was competent to testify as he was able to

communicate, understood the difference between a lie and the truth, could

recall the events about which he would testify, understood the duty to tell the

truth, and the roles of the persons involved in the trial. See Commonwealth

v. Delbridge, 855 A.2d 27, 39 (Pa. 2003). Hence, the trial court overruled

co-defendant’s competency objection, and this Court affirmed that ruling in

co-defendant Johnson’s appeal. See Commonwealth v. Johnson, 986 A.2d

1257 (Pa.Super. 2009) (unpublished memorandum).

      We find that Appellant has not established any prejudice due to the

failure of his counsel to object on this ground where a similar objection was


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made by co-defendant’s counsel, overruled, and upheld by this Court on

appeal.    Appellant has not even suggested how his counsel’s participation

would have changed the outcome of the competency hearing. Thus, Appellant

has failed to establish the arguable merit and prejudice prongs of an

ineffective assistance claim.

       Appellant’s next ineffectiveness claim pertains to his counsel’s failure to

object to the admission of a photograph recovered from his home that depicts

Appellant and his co-defendant in a Chinese store located near the scene of

the murders.5 Appellant maintains that his counsel should have objected to

the admission of the photograph based on a lack of authentication. He also

complains that counsel should have objected because the purported

authentication testimony from Detective Charles Boyle, i.e., that he was

familiar with the location seen in the photograph and that Appellant and his

co-defendant were portrayed therein, was offered after the photograph was

admitted.

       We note first that both Appellant’s counsel and co-defendant Johnson’s

attorney objected to the admission of the photograph based on a lack of

authentication prior to trial. N.T. (Motion), 2/13/08, at 15-23. Counsel for

co-defendant renewed that objection at trial, and it was overruled. N.T. Trial



____________________________________________


5Although the person identified as co-defendant Johnson is depicted in the
photograph as holding a gun, the gun was redacted from the photograph
before it was displayed to the jury.

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(Jury), 2/20/08, at 110. Appellant has failed to demonstrate how the outcome

would have been different had his counsel renewed the objection at trial.

      Regarding the timing of the authentication testimony, the record reveals

that the Commonwealth made a proffer of Detective Boyle’s authentication

testimony prior to the admission of the photograph, and the jury was not

shown the photograph until after the detective testified. The law is well settled

that the trial court has discretion as to the order of presentation of witnesses

and proof. See Commonwealth v. Smallwood, 442 A.2d 222, 224 (Pa.

1982) (“The order of proof is a matter within the realm of the trial court’s

judicial discretion which will not be interfered with in the absence of an abuse

thereof.”). Appellant failed to establish prejudice or arguable merit.

      With regard to the photograph, Appellant also argues that it was illegally

seized from his home and that counsel was ineffective in failing to seek its

suppression.   He contends that the search was not supported by probable

cause and the photograph was irrelevant. The Commonwealth counters that

probable cause to search Appellant’s home was supplied by J.W.’s statement

that Appellant admitted that he murdered the two men and held her at

gunpoint in his home. Based on that information, they had reason to believe

that search of the home would yield a gun or other contraband or evidence

relevant to the murders.

      The PCRA court found no merit in Appellant’s claim that counsel was

ineffective for failing to challenge the search that yielded the photograph. The


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court found that the affidavit of probable cause contained not only J.W.’s

report of Appellant’s incriminating admission to the murders, but that it also

contained information that Appellant had committed a rape, “which by itself

established probable cause to search [Appellant’s] residence.” PCRA Court

Opinion, 11/13/17, at 8 (citing N.T. Trial (Jury), 2/13/08, at 16). Moreover,

the fact that photographs were not listed in the search warrant did not

preclude their seizure. As the PCRA court correctly noted, items other than

those described in a search warrant may be seized “if they have a reasonable

relation to the purpose of the search.” Id. at 9 (citing Commonwealth v.

Gannon, 454 A.2d 561, 565 (Pa.Super. 1982)). The PCRA court found the

photographs to be reasonably related to the purpose of the search as they

depicted Appellant in a location near the double homicide and with his co-

defendant who was holding a gun. Hence, the court found no arguable merit

in Appellant’s claim that his counsel was ineffective for failing to challenge the

seizure of the photographs. We agree with the PCRA court’s analysis and find

no arguable merit in Appellant’s ineffective assistance claim that would entitle

him to relief.

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

object and raise on appeal numerous instances of prosecutorial misconduct.

He claims that counsel was ineffective for not objecting to some of the

improprieties, failing to request a mistrial in other instances, and in

abandoning some of these issues on appeal.


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      According to Appellant, ineffectiveness first occurred when counsel

purportedly failed to object, seek a curative instruction, and/or appeal when

the prosecutor argued facts not in evidence during the opening statement.

The prosecutor represented that Appellant, having learned that his co-

defendant had been arrested, accosted J.W. at gunpoint.           Defense counsel

objected, but the objection was overruled. The trial court found the argument

proper as J.W. was going to testify, and did testify, that Appellant held J.W.

at gunpoint after learning that his co-defendant had been arrested. Appellant

faults his counsel for failing to assert the trial court’s ruling as error on appeal

and contends that it prejudiced his co-defendant.

      The PCRA court found that Appellant was not entitled to relief based on

alleged prejudice to his co-defendant where the comment referred to

Appellant. Moreover, the court noted that J.W. testified that Appellant pointed

a gun at her, and the jury was told that her testimony could only be considered

against Appellant. Finally, Appellant offers no support for his claim that had

counsel appealed, the result would have been different.         Thus, he has not

made the requisite showing of prejudice that would entitle him to relief.

      In a closely-related argument, Appellant claims that counsel was

deficient in failing to object when the prosecutor stated that Appellant held a

gun to J.W.’s head, when J.W. actually testified that he pointed a gun at her.

The PCRA court found no prejudice from counsel’s failure to object as Appellant

failed to offer any argument that the outcome of the trial would have been


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any different if counsel had successfully objected. Furthermore, the trial court

had cautioned the jury that the arguments of counsel were not evidence. We

agree, and no relief is due on this basis. N.T. Trial (Jury), 2/21/08, at 11-12.

      Next, Appellant faults his counsel for failing to seek a mistrial when the

Commonwealth “manipulated” J.W.’s testimony “about the murder” to reflect

that there had actually been two murders. Defense counsel objected, but the

objection was overruled. Appellant alleges ineffectiveness on counsel’s part

because he did not seek a mistrial following Detective Boyle’s testimony that

J.W. provided him with information regarding a double murder when she said

“murder” in the singular. N.T. Trial (Jury), 2/20/08, at 175-76.

      The PCRA court found no manipulation of J.W.’s testimony in this regard.

It reasoned that J.W.’s use of the word “murder” was merely a reference to

the incident, not to the number of persons killed.       PCRA Court Opinion,

11/13/17, at 16.   In her statement to police and her trial testimony, J.W.

spoke of “two murders,” and reported that Appellant said “me and my other

bull (friend) murdered Keem's two cousins[,]” clearly indicating that more

than one person was killed. Id. at 7 (citing N.T. (Motion), 2/13/08 at 3-11;

N.T. Trial (Jury), 2/20/08, at 85, 89-90). We find, as to each of the foregoing

claims, Appellant neglected to make any showing of prejudice, i.e., that a

mistrial would have been granted had it been sought.

      Next, Appellant complains that counsel failed to object when the

prosecutor   argued   that   Appellant’s   grandmother    lived   in   Southwest


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Philadelphia in close proximity to the Chinese store, which he claims is

factually incorrect. Again, Appellant fails to establish how he was prejudiced,

especially where there was photographic evidence of him at the Chinese store.

In sum, we find no ineffective assistance of counsel with regard to what

Appellant complains was prosecutorial misconduct.

      Appellant argues next that the testimony of Mrs. Elissa Carter was

inconsistent and that her testimony of fear and intimidation was outside the

scope of the Commonwealth’s proffer. He argues that the Commonwealth’s

reference to the intimidation coming from one side of the courtroom implied

that Appellant was responsible for intimidating the witness.          Appellant’s

counsel objected in closing, to no avail. Appellant faults the trial court for not

providing a cautionary or curative instruction. Appellant’s brief at 37. Since

this alleged error is directed at the trial court, not counsel, it is waived as it

could have been asserted on direct appeal. Commonwealth v. Paddy, 15

A.3d 431, 442 (Pa. 2011) (“An issue has been waived if the petitioner could

have raised it but failed to do so before trial, at trial, during unitary review,

on appeal or in a prior state post-conviction proceeding. 42 Pa.C.S. §

9544(b).”).

      Appellant raises a litany of instances where he alleges counsel was

ineffective for failing to object, or seek a mistrial, or appeal. He blames his

counsel for not objecting to Ms. Carter’s statement being hand-recorded by

the police, although he offers no explanation as to how he was prejudiced.


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      Appellant alleges that counsel should have challenged the court’s refusal

to declare a mistrial based upon improper surprise when Mr. LeRoy Davis

identified him in court as “the tall guy.” However, the PCRA found no prejudice

as the identification was “equivocal at best.” PCRA Court Opinion, 11/13/17,

at 23. Additionally, the PCRA court found no evidence that the Commonwealth

knew Mr. Davis was going to make the in-court identification before he did so.

Id. Finally, the PCRA court noted that an in-court identification is not per se

improper absent a pre-trial identification.     Id. (citing Commonwealth v.

Rush, 562 A.2d 285 (Pa. 1989), and Commonwealth v. Cornish, 370 A.2d

291 (PA. 1977)). We find no error in the PCRA court’s rationale, and no relief

is due.

      Appellant also claims that trial counsel was ineffective for failing to call

his alibi witnesses. In a related issue, Appellant alleges that counsel lied to

him and the alibi witnesses about the reasons for not calling them. Neither

claim affords a basis for relief.

      In support of this ineffectiveness claim, Appellant offers two affidavits

that he acquired after the fact from Hakeem Harris and Latanya McKoy, which

he maintains establish an alibi defense. The Commonwealth counters that

Appellant expressly waived his right to call witnesses at trial, and furthermore,

that neither of the affidavits established an alibi.

      The PCRA court agreed with the Commonwealth that Appellant should

not be heard to complain that counsel was ineffective in failing to call his alibi


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witnesses after Appellant represented to the trial court that he did not ask

counsel to call certain persons as witnesses, counsel had not refused to call

any, and he was satisfied with counsel’s representation.          N.T. Trial (Jury),

2/21/08, at 8-9 (citing Commonwealth v. Lawson, 762 A.2d 753 (Pa.Super.

2000)) (holding that one cannot waive the right to call witnesses and then

later claim that the waiver was coerced by counsel). Furthermore, the PCRA

court found that the affidavits did not establish an alibi for Appellant. Ms.

McKoy did not state that Appellant was in a particular location when the crime

was committed that would have rendered it impossible for him to have

committed it; Hakeem merely said he spoke to Appellant by phone. Hakeem

also stated therein that he intentionally absented himself from trial because

he was angry with Appellant and afraid of being arrested.

      Our review of the affidavits confirms that they do not furnish alibis for

Appellant or establish that these witnesses were available and willing to testify

on Appellant’s behalf.     Hence, Appellant cannot demonstrate that he was

prejudiced by counsel’s failure to call them.        As to Appellant’s claim that

counsel lied to him and the witnesses to secure the witnesses’ absence,

Appellant   offers   no   support.   The      affidavits   do   not   establish   any

misrepresentations that counsel purportedly made regarding their attendance

at trial. Thus, this claim lacks arguable merit and a showing of prejudice that

would entitle Appellant to relief.




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      Appellant’s final issue is that the PCRA court erred in dismissing his PCRA

petition where he should have been sentenced as a juvenile. He claims that,

although he was twenty years old at the time of the offense, he was on juvenile

probation until the age of twenty-one, and should have been treated as a

juvenile.   The Commonwealth directs our attention to Commonwealth v.

Lee, 206 A.3d 1 (Pa.Super. 2019) (en banc), where this Court rejected the

argument that there should be exceptions to the eighteen-year-old ceiling

recognized in Miller v. Alabama, 567 U.S. 460 (2012).

      In Lee, the critical issue was whether the appellant could avail herself

of the Miller rationale, even though she was over the age of eighteen at the

time of the offense. She alleged that the “immature brain” theory was equally

applicable to her and rendered her less culpable under Miller. Lee, supra at

5. This Court refused to expand the Miller holding on collateral review to

individuals over the age of eighteen. Thus, the PCRA court correctly held that

Miller did not apply to Appellant, who was twenty years old at the time of the

murders.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/19/19


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