J-S23037-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           : IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                Appellee                :
                                        :
                  v.                    :
                                        :
JOEL G. MUIR,                           :
                                        :
                Appellant               : No. 1970 EDA 2014

            Appeal from the PCRA Order Entered May 22, 2014,
           in the Court of Common Pleas of Montgomery County,
            Criminal Division, at No(s): CP-46-CR-0001707-2004

BEFORE:    DONOHUE, SHOGAN, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                FILED OCTOBER 27, 2015

     Joel G. Muir (Appellant) appeals from the order entered on May 22,

2014, denying his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel has filed a petition for leave to

withdraw and no-merit letter pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc).     Upon review, we grant counsel’s petition to

withdraw and affirm the order of the PCRA court.

     On direct appeal, this Court summarized the facts underlying this case.

            Around 2:00 a.m., on August 3, 2001, in the parking lot of
     the Sunnybrook Ballroom, [A]ppellant, co-defendant Nicholas
     Roberts, and two unidentified men, riding in a maroon Toyota
     Camry, approached one Rian Wallace, who was standing in the
     parking lot, and began yelling, “New York Crips.” The two
     unidentified men exited the vehicle and began doing a gang
     ritual dance around Wallace, purportedly alerting Wallace to the
     fact they were members of the Crips street gang. Appellant then


*Retired Senior Judge assigned to the Superior Court.
J-S23037-15


         also exited the car, and the three men surrounded Wallace.
         Shortly thereafter, two of Wallace’s friends, the victim Michael
         Ziegler and Brandon Germany, arrived at the scene. No violence
         occurred during this confrontation.

                Wallace then left the scene with a friend, followed 30
         minutes later by Ziegler, Germany, and two other men, driving a
         gold Ford Taurus. After dropping off the other men at an
         acquaintance’s house, Ziegler and Germany stopped briefly at a
         motel party, and then drove to the home of a friend, Janae
         Nixon.     Ziegler parked on the street, and, according to
         Germany’s testimony, [A]ppellant’s maroon Toyota Camry with
         its lights turned out was also parked on that street.        Co-
         defendant Roberts was seated in the driver’s seat of the Camry,
         [A]ppellant was in the passenger’s seat and two other individuals
         were in the backseat. Appellant sped past the victim’s car, but
         returned 10 minutes later, at about 3:00 a.m., minus the two
         rear passengers. As [A]ppellant’s car approached Nixon’s home
         and the parked Taurus, Germany, Nixon and a second woman,
         Shena Beasley[,] were entering the Taurus. The victim already
         was seated at the wheel. With Germany in the passenger seat,
         the victim drove away, and [A]ppellant and Roberts, the driver
         of the Camry, followed. As Roberts sped past the Taurus,
         [A]ppellant, seated in the backseat, fired into the victim’s
         vehicle, striking Ziegler in the head and killing him.

Commonwealth v. Muir, 909 A.2d 884 (Pa. Super. 2006) (unpublished

memorandum at 1-3).

         Appellant absconded to New York and was apprehended three years

later.    After a six-day trial, a jury found Appellant guilty of first-degree

murder, as well as related offenses including conspiracy and possession of a

firearm without a license. On December 29, 2004, Appellant was sentenced

to two concurrent terms of life imprisonment for first-degree murder and

conspiracy to commit first-degree murder, and three consecutive terms of




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J-S23037-15


seven to fourteen years of incarceration for the other charges. This Court

affirmed Appellant’s judgment of sentence on August 23, 2006. Muir,

supra.     After a series of procedural turns,1 our Supreme Court denied

Appellant’s   petition   for   allowance   of   appeal   on   March   29,   2012.

Commonwealth v. Muir, 42 A.3d 292 (Pa. 2012).

      On December 18, 2012, Appellant timely filed a pro se PCRA petition.

Henry S. Hilles, III, Esquire (Attorney Hilles) was appointed to represent

Appellant. On September 30, 2013, Attorney Hilles filed a third amended

PCRA petition, which stated that this petition “fully replaces the first and

second amended PCRA petitions.” Third Amended PCRA Petition, 9/30/2013,

at ¶ 14.   Appellant set forth one issue concerning trial counsel’s ineffective

assistance with respect to Appellant’s right to testify on his own behalf.

Specifically, Appellant argued that counsel misadvised Appellant that his

prior non-crimen falsi convictions would be admissible if he chose to testify.

Appellant also argued that trial counsel “refused” to permit Appellant to

testify. Id. at ¶ 18.

      An evidentiary hearing was held on January 22, 2014, and on May 22,

2014, the PCRA court denied Appellant’s request for PCRA relief. On June

1
  These procedural turns included Appellant’s being abandoned by counsel
causing the reinstatement of Appellant’s PCRA rights, followed by the grant
of Appellant’s PCRA petition which permitted him to file a petition for
allowance of appeal to our Supreme Court from this Court’s affirmance of his
judgment of sentence.



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J-S23037-15


23, 2014, Appellant timely filed a pro se notice of appeal.2      On June 23,

2014, Attorney Hilles filed with the PCRA court a petition for leave to

withdraw as counsel and no-merit letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc).3      On July 2, 2014, the PCRA court

permitted counsel to withdraw.         On July 18, 2014, Appellant filed

“Objections” to the PCRA court’s decision to allow Attorney Hilles to

withdraw, essentially claiming that Attorney Hilles was ineffective for

petitioning to withdraw as counsel at that juncture in the proceedings.

      On appeal, we remanded the case for the appointment of new counsel,

concluding that the PCRA court was without jurisdiction to permit counsel to

withdraw after Appellant timely filed a notice of appeal. Commonwealth v.


2
   Although Appellant’s notice of appeal was not docketed until June 26,
2014, we consider it as being filed, at the latest, on June 23, 2014, the date
stamped on the envelope, as Appellant is incarcerated.                      See
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (“[T]he
prisoner mailbox rule provides that a pro se prisoner’s document is deemed
filed on the date he delivers it to prison authorities for mailing.”). Since the
PCRA court order was filed on May 22, 2014, Appellant had until June 23,
2014 to file timely a notice of appeal. Thus, the instant appeal was filed
timely under the prisoner mailbox rule.

3
  In that letter, Attorney Hilles advised Appellant that the deadline to file a
notice of appeal was “today,” meaning, the day Attorney Hilles sent the
letter to Appellant. No-merit Letter, 6/23/2014, at 1. That letter also
included a thorough analysis of the one issue presented in Appellant’s PCRA
petition, along with six issues Appellant specifically asked Attorney Hilles to
review. Attorney Hilles concluded that none of these issues had merit
warranting an appeal.


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J-S23037-15


Muir, 1970 EDA 2014 (Pa. Super. filed May 29, 2015).         The PCRA court

appointed new counsel, Melissa A. Lovett, Esquire, on June 8, 2015. On July

20, 2015, Attorney Lovett filed with this Court a petition for leave to

withdraw and no-merit letter pursuant to Turner/Finley.

     We review such matters as follows.

     … Turner/Finley counsel must review the case zealously.
     Turner/Finley counsel must then submit a “no-merit” letter to
     the trial court, or brief on appeal to this Court, detailing the
     nature and extent of counsel’s diligent review of the case, listing
     the issues which the petitioner wants to have reviewed,
     explaining why and how those issues lack merit, and requesting
     permission to withdraw.

           Counsel must also send to the petitioner: (1) a copy of
     the “no-merit” letter/brief; (2) a copy of counsel’s petition to
     withdraw; and (3) a statement advising petitioner of the right to
     proceed pro se or by new counsel.

           If counsel fails to satisfy the foregoing technical
     prerequisites of Turner/Finley, the court will not reach the
     merits of the underlying claims but, rather, will merely deny
     counsel’s request to withdraw. Upon doing so, the court will
     then take appropriate steps, such as directing counsel to file a
     proper Turner/Finley request or an advocate’s brief.

            However, where counsel submits a petition and no-merit
     letter that do satisfy the technical demands of Turner/Finley,
     the court—trial court or this Court—must then conduct its own
     review of the merits of the case. If the court agrees with
     counsel that the claims are without merit, the court will permit
     counsel to withdraw and deny relief. By contrast, if the claims
     appear to have merit, the court will deny counsel’s request and
     grant relief, or at least instruct counsel to file an advocate’s
     brief.




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J-S23037-15


Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)

(citations omitted).

      We are satisfied that counsel has complied with the technical

requirements of Turner/Finley.4          We now consider all of the issues

Appellant wishes us to review.

      When we review the propriety of the PCRA court’s order, we are

limited to determining whether the court’s findings are supported by the

record   and   whether    the   order   in   question   is   free   of   legal   error.

Commonwealth v. Grant, 992 A.2d 152, 156 (Pa. Super. 2010). This

Court will not disturb the PCRA court’s findings if there is any support for the

findings in the certified record. Id.

      Moreover, in order to obtain relief based on a claim of ineffective

assistance of counsel under the PCRA, the petitioner must prove that:

4
  On August 14, 2015, Appellant filed a pro se “Application for Clarification.”
In that application, Appellant states that this Court’s prior opinion was
“unclear and [did] not specify how or when Appellant is entitled to respond
to counsel’s no-merit letter filed before this Court.” Application for
Clarification, 8/14/2015, at ¶ 12.        However, in compliance with the
mandates of Turner/Finley, Attorney Lovett specifically advised Appellant
of the following: “[I]f PCRA counsel filed a Turner/Finley brief on appeal,
the appellant has the right to file a brief advocating on his own behalf. …
Therefore, you are allowed to proceed with your appeal pro se or with
privately retained counsel if I am permitted to withdraw from your case.”
Turner/Finley letter, at 11. Thus, Appellant had the right to file with this
Court a new pro se brief if he so desired. He did not do so; however, this
Court has the brief he filed originally, which addresses all of the issues that
could possibly be raised in this case. Moreover, issues of all PCRA counsel
effectiveness will be addressed infra. Accordingly, Appellant’s “Application
for Clarification” is denied.


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J-S23037-15


     (1) the underlying claim is of arguable merit; (2) counsel’s
     performance lacked a reasonable basis; and (3) the
     ineffectiveness of counsel caused the petitioner prejudice. A
     chosen strategy will not be found to have lacked a reasonable
     basis unless it is proven that an alternative not chosen offered a
     potential for success substantially greater than the course
     actually pursued. To demonstrate prejudice, the petitioner must
     show that there is a reasonable probability that, but for counsel’s
     error or omission, the result of the proceeding would have been
     different. A reasonable probability is a probability that is
     sufficient to undermine confidence in the outcome of the
     proceeding. A failure to satisfy any one of the three prongs of
     the test for ineffectiveness requires rejection of the claim.

Commonwealth v. Cam Ly, 980 A.2d 61, 73 (Pa. 2009) (internal quotation

marks and citations omitted).

     To provide background for the issues presented in this appeal, we

summarize the testimony presented at the PCRA hearing. Appellant testified

about his version of the events that occurred on the night of the shooting

and why he believes counsel was ineffective in failing to pursue the defense

of self-defense. He testified that “everyone went to a party, [and] a little

confrontation happened at the party.” N.T., 1/22/2014, at 7. Codefendant

Nicholas Roberts and Appellant were going to pick up Jeanae Nixon and

Shena Beasly “to go hang out after the party.” Id.           However, when

Appellant, who was sitting in the backseat, and Roberts arrived at Nixon’s

house, Brandon Germany and Michael Zeigler were there.         Appellant and

Roberts drove around the block, and Appellant called Nixon to see if Nixon




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J-S23037-15


and Beasly were going to get in the car with them.            Nixon informed

Appellant that she and Beasly were going to go with Germany and Zeigler.

      According to Appellant, Nixon and Beasly got into the car with

Germany and Zeigler, and by “coincidence,” Appellant and Roberts were

driving behind them. Id. at 9.     The front car stopped at a stop sign, and

Roberts then “proceeded to go around them … because they stopped at a

stop sign.” Id. at 10. Appellant then testified as follows.

      So we going around to get past them to leave. As we coming
      around, okay, the way Michael Zeigler was, he was more, like,
      driving, like, slumped in the car. I see Brandon Germany with
      the gun, and he’s pointing out the window.           And I said
      something to the fact like, he got a hammer, and I pulled out,
      and I started firing. From there we left, all right.

Id.   Appellant further testified that “[i]f Brandon Germany never pulled out

a gun, this wouldn’t have happened.” Id. at 11.

      Appellant also testified about the fact he did not testify at trial.   He

stated that at the time of the shooting, he “was on parole in New York for a

gun and a drug charge.” Id. at 14. He testified that trial counsel told him

that the Commonwealth could use his criminal history against him to make

him “look like a liar and destroy [his] credibility.” Id. at 14-15.    He was

concerned they were going to make him “look like a liar and a bad person”

because he had a “drug and gun charge.” Id. at 15.

      Trial counsel testified that Appellant never told trial counsel that

Germany had a gun that night; however, Appellant did tell trial counsel that



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J-S23037-15


Germany had a reputation for carrying a firearm. Id. at 26. Trial counsel

also testified that he told Appellant that his drug conviction could not be

introduced as evidence against him, but the gun conviction could potentially

be used to demonstrate that Appellant had access to a firearm. Id. at 27.

Additionally, trial counsel testified that, based on the information he had, the

best available defense strategy was a combination of poor witness

identification of the shooter because it was dark that night, along with

Appellant’s lack of motive to kill the victim.    Trial counsel believed these

strategies to be inconsistent with the idea of self-defense.

      With this background in mind, we review the issues set forth the

Turner/Finley letter to determine if we agree with counsel’s conclusion that

they are without merit.       We first consider whether trial counsel was

ineffective for purportedly advising Appellant not to testify because it would

permit the Commonwealth to introduce evidence of Appellant’s prior gun and

drug convictions. Turner/Finley Letter, 7/15/2015, at 3 (unnumbered);

Appellant’s Brief at 38-44.

      The PCRA court opined as follows.

      [T]rial counsel credibly testified that [Appellant] had decided
      before trial that the best available defense strategy would be to
      challenge the reliability of the Commonwealth’s eyewitness
      identification testimony intended to prove that it was, in fact,
      [Appellant] who was the man firing bullets from the backseat of
      the car. Second, trial counsel credibly testified that he never
      told [Appellant] that he could be impeached with a drug
      conviction…. Fourth, it is wholly incredible that [Appellant] would



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J-S23037-15


      fear proof he had access to a firearm while admitting to the jury
      that he not only had a firearm, but that he had it at the ready to
      defend himself upon being surprised to see someone in another
      moving car aiming to shoot him. Fifth, it is beyond belief that
      [Appellant] stood accused of having committed a cold-blooded,
      gangland style “hit” at point-blank range and was facing a
      lifetime in prison and that he nevertheless chose not to testify in
      his defense because he feared that the jury might judge him to
      be a “liar and a bad person.” [Appellant] wholly failed to
      persuade [the PCRA court] that trial counsel committed a breach
      of his duty to provide effective representation that caused
      [Appellant] not to exercise his right to take the stand at trial and
      testify in his own defense.

PCRA Court Opinion, 8/22/2014, at 7-8 (citations omitted).

      Instantly, the PCRA court credited trial counsel’s testimony and

discredited Appellant’s testimony from the PCRA hearing. “The findings of a

post-conviction court, which hears evidence and passes on the credibility of

witnesses, should be given great deference.” Commonwealth v. Jones,

912 A.2d 268, 293 (Pa. 2006).         Our review of the testimony from the

hearing reveals that the PCRA court’s conclusions are supported by

competent evidence of record. Accordingly, we agree with counsel and the

PCRA court that this issue is meritless.

      Appellant’s   next   three   issues     involve   trial   counsel’s   strategy.

Specifically, Appellant argues that trial counsel should have pursued an




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J-S23037-15


imperfect self-defense theory in this case. Appellant’s Brief at 15-34, 45-54.

Turner/Finley Letter at 5-7, 8.5

      A defense of “imperfect self-defense” exists where the defendant
      actually, but unreasonably, believed that deadly force was
      necessary. However, all other principles of self-defense must still
      be met in order to establish this defense. The requirements of
      self-defense are statutory: “The use of force upon or toward
      another person is justifiable when the actor believes that such
      force is immediately necessary for the purpose of protecting
      himself against the use of unlawful force by such other person
      on the present occasion.” 18 Pa.C.S.A. § 505(a). If “the defender
      did not reasonably believe deadly force was necessary [,] he
      provoked the incident, or he could retreat with safety, then his
      use of deadly force in self-defense was not justifiable.”
      Commonwealth v. Fowlin, [] 710 A.2d 1130, 1134 ([Pa.]
      1998). A successful claim of imperfect self-defense reduces
      murder to voluntary manslaughter.

Commonwealth v. Truong, 36 A.3d 592, 599 (Pa. Super. 2012) (en banc)

(some citations omitted).

      Appellant’s entire self-defense claim is premised on the fact that he

purportedly saw Germany with a gun that night.         However, trial counsel

testified that Appellant never told him that he saw Germany with a gun that

night. N.T., 1/22/2014, at 26.     Moreover, trial counsel stated that “at the

time of the shooting when the decedent was found and soon thereafter, all




5
  In addition to a general argument that self-defense was a better theory for
the defense, Appellant argues that trial counsel was ineffective for failing to
request a jury instruction for imperfect self-defense. Turner/Finley Letter
at 5. Appellant also argues that trial counsel was ineffective for failing to
investigate witnesses to support the theory of imperfect self-defense. Id. at
6.


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J-S23037-15


the witnesses in the car denied having any evidence of Brandon Germany

carrying a firearm.” Id. at 29.

      Trial counsel’s testimony is supported by the evidence presented by

the Commonwealth at trial.        At trial, Germany testified he did not have a

gun and also that nobody with him had a gun that he observed. N.T.,

8/20/2004, at 48-9.      Furthermore, both Beasly and Nixon testified that

Brandon Germany did not have a gun. N.T., 8/19/2004, at 83, 162-63.

       Thus, the crux of Appellant’s argument, that he shot at the car in self

defense, was utterly contrary to the other evidence presented at trial. We

agree with the PCRA Court’s conclusion that counsel’s strategy, wherein he

did not pursue self defense, was reasonable. Accordingly, trial counsel could

not be ineffective for failing to request a jury instruction on this basis.

      With respect to Appellant’s claim that trial counsel failed to prepare

adequately for the defense of self-defense by investigating relevant

witnesses, we consider the following.

                   When raising a claim of ineffectiveness for the
            failure to call a potential witness, a petitioner
            satisfies the performance and prejudice requirements
            of the [Strickland v. Washington, 466 U.S. 668,
            104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] 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....



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J-S23037-15



      Commonwealth v. Sneed, 45 A.3d 1096, 1108–09 (Pa. 2012).
      “To demonstrate Strickland prejudice, a petitioner must show
      how the uncalled witnesses’ testimony would have been
      beneficial under the circumstances of the case.” Sneed, 45 A.3d
      at 1109. Counsel will not be found ineffective for failing to call a
      witness “unless the petitioner can show that the witness’s
      testimony would have been helpful to the defense. A failure to
      call a witness is not per se ineffective assistance of counsel for
      such decision usually involves matters of trial strategy.” Id.
      (internal quotation marks and citations omitted).

Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013).

      Three of the witnesses that Appellant claims should have been

interviewed to support this theory were Nixon, Beasly, and Germany.

Appellant’s Brief at 29-34. However, as detailed supra, all three witnesses

testified that Germany did not have a gun that night; thus, that testimony

would not have been helpful to the defense. Accordingly, Appellant’s issue

lacks arguable merit.

      Appellant also claims that trial counsel was ineffective for failing to

investigate two other fact witnesses, namely Patricia Whitehawk (also

referred to as “Ms. Pat”) and Larry Phillips. Appellant’s Brief at 25-29.

Specifically, Appellant argues that the testimony of Patricia Whitehawk would

have established that Germany went to her house after the incident

“brandishing a handgun and looking for Appellant.” Id. at 25. At the PCRA

hearing, trial counsel testified as follows.

            And I do recall us having a conversation about Ms. Pat in
      particular; so my investigator certainly would have attempted to



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J-S23037-15


      go and see Ms. Pat, and I do recall having a conversation about
      her. … My recollection was that I think there were several
      attempts to reach [Ms. Pat] to no avail and that was discussed
      with [Appellant] as well.

N.T., 1/22/2014, at 33.

      Whitehawk “is now deceased” and therefore, Appellant could not

receive a new trial on this basis, as Whitehawk is unavailable to testify.

Turner/Finley Letter, at 6 (unnumbered).            Moreover, the PCRA court

believed trial counsel’s testimony that he attempted to contact Whitehawk.

Accordingly, Appellant cannot now meet the standards set forth in Matias to

prevail on his ineffectiveness claim.

      With respect to Larry Phillips, Appellant argues that he “was a first

responder to the scene of the shooting” and provided a statement to police

that he “saw a guy standing on the sidewalk with a gun.” Appellant’s Brief at

27-28.   Appellant’s pro se PCRA petition requests that the Commonwealth

turn over to him “the statement from Commonwealth witness Larry Phillips.”

PCRA Petition, 12/28/2012, at 6.        Our review of the record finds no other

reference to Larry Phillips. Notably, in the Turner/Finley letter prepared by

Attorney Hilles, there is no indication Appellant brought this witness to

counsel’s attention. See Petition to Withdraw, 6/23/2014, at Exhibit A. In

that petition, Attorney Hilles states that Appellant “asked [him] to raise six

(6) specific issues” and attached a pro se brief to file. Id. Attorney Hilles

went on to explain why each of the claims is without merit. Absent from the



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discussion of trial counsel’s ineffective assistance for failure to call a

potential witness is any reference to Larry Phillips.    Moreover, Appellant’s

brief to this Court refers to Larry Phillips’ statement to police as being in the

reproduced record at page 17. Our review of the reproduced record reveals

no page 17 of the reproduced record or any statement by Larry Phillips in it.

Based on the foregoing, any issue with respect to Larry Phillips has been

waived.

      We now turn to Appellant’s next argument where he contends that trial

counsel was ineffective for failing to investigate and present character

witnesses. Appellant’s Brief at 34-38.     Appellant asserts that counsel was

ineffective in failing to contact Curtis Jack, Jamel Harris, and Joseph Bodrick.

             The failure to call character witnesses does not constitute
      per se ineffectiveness. In establishing whether defense counsel
      was ineffective for failing to call witnesses, appellant must
      prove: (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. Treiber, 2015 WL 4886374, at *23 (Pa. August 17,

2015) (citations and quotations omitted).

      The Rules of Evidence are specific as to what type of character

evidence may be presented at trial.

            As a general rule, evidence of a person’s character may
      not be admitted to show that individual acted in conformity with



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     that character on a particular occasion. Pa.R.E. 404(a). However,
     Pennsylvania Rule of Evidence 404(a)(1) provides an exception
     which allows a criminal defendant to offer evidence of his or her
     character traits which are pertinent to the crimes charged and
     allows the Commonwealth to rebut the same. Pa.R.E. 404(a)(1).
     This Court has further explained the limited purpose for which
     this evidence can be offered:

                 It has long been the law in Pennsylvania that
          an individual on trial for an offense against the
          criminal law is permitted to introduce evidence of his
          good reputation in any respect which has “proper
          relation to the subject matter” of the charge at issue.
          Such evidence has been allowed on a theory that
          general reputation reflects the character of the
          individual and a defendant in a criminal case is
          permitted to prove his good character in order to
          negate his participation in the offense charged. The
          rationale for the admission of character testimony is
          that an accused may not be able to produce any
          other evidence to exculpate himself from the charge
          he faces except his own oath and evidence of good
          character.

                It is clearly established that evidence of good
          character is to be regarded as evidence of
          substantive fact just as any other evidence tending
          to establish innocence and may be considered by the
          jury in connection with all of the evidence presented
          in the case on the general issue of guilt or
          innocence. Evidence of good character is substantive
          and positive evidence, not a mere make weight to be
          considered in a doubtful case, and, ... is an
          independent factor which may of itself engender
          reasonable doubt or produce a conclusion of
          innocence. Evidence of good character offered
          by a defendant in a criminal prosecution must
          be limited to his general reputation for the
          particular trait or traits of character involved in
          the commission of the crime charged. The cross-
          examination      of    such     witnesses   by    the
          Commonwealth must be limited to the same traits.



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             Such evidence must relate to a period at or about
             the time the offense was committed, and must be
             established by testimony of witnesses as to the
             community opinion of the individual in
             question, not through specific acts or mere
             rumor.

Commonwealth v. Johnson, 27 A.3d 244, 247-48 (Pa. Super. 2011)

(quoting Commonwealth v. Luther, 463 A.2d 1073, 1077–78 (Pa. Super.

1983) (citations omitted) (emphasis added)).

     Attached to his pro se PCRA petition were three identical affidavits

from the aforementioned individuals.    All three stated the following: “2.

That I do know his past which involve some problems with the law but that I

do not judge him because of that, I base my decision of his character on

who he is as a person that I personally know.” Affidavit of Curtis Jack,

6/12/2012; Affidavit of Jamel Harris, 6/4/2012; Affidavit of Joseph Bodrick,

5/14/2012.

     These affidavits reveal that the testimony that these three individuals

would offer was both irrelevant and inadmissible. The affidavits are void of

any information that Appellant has a reputation for being law abiding and

peaceful. Accordingly, “the absence of the testimony of the witness[es] was

[not] so prejudicial as to have denied the defendant a fair trial.” Treiber,

supra.

     Appellant’s final two issues relate to PCRA counsel’s abandonment of

Appellant on appeal. Turner/Finley Letter at 10-11; Appellant’s Brief at 55-



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65.   This Court remedied that situation in its prior memorandum by

remanding the case for the appointment of new counsel. New counsel was

appointed, she filed a Turner/Finley no-merit letter, and now this Court has

undertaken a thorough review of the issues. Accordingly, Appellant’s claims

about prior PCRA counsel’s performance are moot.

      In summary, we are reminded of the following. “A claim of

ineffectiveness generally cannot succeed through comparing, in hindsight,

the trial strategy employed with alternatives not pursued.” Commonwealth

v. Washington, 927 A.2d 586, 600 (Pa. 2007).           Furthermore, “[a] fair

assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Commonwealth v. Carson, 913 A.2d 220, 274

(Pa. 2006).   While it may look now to Appellant that trial counsel should

have pursued a self-defense theory in hopes that Appellant’s conviction

would be reduced to voluntary manslaughter, at the time of trial counsel’s

investigation, the evidence was not there to support such a defense.    Based

on the foregoing, we affirm the order of the PCRA court and grant counsel’s

petition to withdraw.

      Order affirmed. Petition to withdraw as counsel granted.




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J-S23037-15




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 10/27/2015




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