J-S55029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DREW PRITCHETT,

                            Appellant                 No. 436 WDA 2014


              Appeal from the PCRA Order Entered March 11, 2014
               In the Court of Common Pleas of Allegheny County
                            Criminal Division at No(s):
                            CP-02-CR-0001813-2008
                            CP-02-CR-0016115-2007


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED NOVEMBER 17, 2015

        Appellant, Drew Pritchett, appeals from the March 11, 2014 order

denying his petition for relief filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant raises five claims of ineffective

assistance of counsel (IAC). After careful review, we affirm.

        This Court summarized the facts of this case in our disposition of

Appellant’s direct appeal, as follows:

               On September 13, 2007, Carl Richardson and his cousin,
        Jamal Younger, took a jitney to Mandy’s Pizza and Restaurant in
        the Northside Section of the City of Pittsburgh. After they
        finished their meal, they attempted to get another jitney to go
        home, but were unsuccessful.          Richardson then called
        [Appellant], who he knew had a vehicle, and asked for a ride.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S55029-15


            [Appellant] arrived a short while later with another
     individual, Dorian Peterson, who was riding in the passenger
     seat. Richardson and Younger got into the back seat. However,
     rather than take Richardson and Younger home, [Appellant]
     decided to drive to the Northside Section of Pittsburgh, which
     was controlled by a rival gang, the Crips.1 [Appellant] stated
     that he wanted to do some “G-Shit,” which Younger understood
     to mean shooting.

           While driving down North Charles Street, Peterson spotted
     the first victim, Maurice Johnson, standing on the side of the
     road. Peterson pointed a sawed-off 0.22 caliber rifle out of the
     front passenger window and fired two shots, striking Johnson
     once in the chest. Johnson was able to leave the scene and get
     to a hospital, which successfully treated his gunshot wound.
     [Appellant] then turned onto Morrison Street where Peterson
     spotted the second victim, Terrence Monroe. Again, Peterson
     took aim with the sawed-off rifle and shot Monroe twice, killing
     him. [Appellant] headed back into the Manchester Section of
     Pittsburgh and turned onto Columbus Street.

           Shortly after the two shootings, a police radio report was
     broadcast to nearby officers informing them of the incident and
     providing a description of the vehicle involved. Pittsburgh Police
     Officer Holly Murphy, who was patrolling along Columbus Street,
     received the report and noticed that [Appellant’s] vehicle fit the
     description. Officer Murphy initiated a traffic stop of [Appellant’s]
     vehicle and ordered the occupants to the ground. [Appellant],
     Richardson and Young complied; however, Peterson fled on foot
     to a nearby home.        Police took [Appellant], Younger and
     Richardson into custody to interview. After interviewing
     Richardson and Younger, police determined that [Appellant] was
     the driver and that Peterson was the shooter.                  Police
     subsequently arrested Peterson.

                        __________________________
        1
          [Appellant] and Peterson were both members of the
        Manchester OGs (Original Gangsters).

Commonwealth       v.    Pritchett,   No.   396    WDA    2010,    unpublished

memorandum at 1-3 (citations to the record omitted).




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      Appellant and Peterson were tried together as co-defendants. At the

conclusion of the jury trial, Appellant was convicted (regarding the death of

Monroe) of first-degree    murder, conspiracy to      commit murder, and

possession of firearm by a person prohibited.       He was also convicted

(regarding the shooting of Johnson) of conspiracy to commit murder,

aggravated assault, and recklessly endangering another person. On March

1, 2010, Appellant was sentenced to life imprisonment for his first-degree

murder conviction, plus an aggregate, consecutive term of 20 to 40 years’

imprisonment for his other convictions.

      Appellant filed a timely direct appeal and this Court ultimately

reversed his conviction for first-degree murder, but affirmed his judgment of

sentence for his remaining convictions. See Pritchett, No. 396 WDA 2010.

Appellant’s case was remanded for resentencing, and on July 19, 2012, the

trial court imposed a new, aggregate sentence of 22½ to 45 years’

incarceration.

      Appellant filed a counseled PCRA petition on November 7, 2012, as

well as an amended petition on November 19, 2012.       The Commonwealth

filed a motion to dismiss Appellant’s petition on November 26, 2012.      On

June 24, 2013, a PCRA hearing was conducted by the court. Thereafter, on

March 11, 2014, the PCRA court issued an order denying Appellant’s

petition. Appellant filed a timely notice of appeal, and also timely complied

with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of




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errors complained of on appeal. The PCRA court subsequently issued a Rule

1925(a) opinion.

      Herein, Appellant presents the following five issues for our review:

      1. Was trial counsel ineffective when he did not renew his
      request that the trial court give a corrupt source charge at the
      conclusion of the court charge where the evidence supported
      that charge?[]

      2. Was trial counsel ineffective for not objecting to the
      introduction of the preliminary hearing transcript of Carl
      Richardson at [Appellant’s] trial, denying [Appellant] his Sixth
      Amendment right to confrontation?

      3. Was [Appellant] denied his Sixth Amendment right to a public
      trial when trial counsel advised [Appellant’s] family that they
      were not permitted in the courtroom during voir dire nor did he
      object to the public[’s] being excluded from the voir dire
      proceeding?

      4. Was trial counsel ineffective for not calling any good character
      witnesses where [Appellant] was a college student, had no
      criminal record and never explained to [Appellant] the
      significance of calling good character witnesses[,] i.e.[,] that
      good character witnesses in and of themselves can raise a
      reasonable doubt.       [Appellant] was a teenager with no
      experience in the criminal justice system and was relying wholly
      on the advise [sic] of his attorney and his attorney was offering
      bad advice[?]

      5. Was trial counsel ineffective for dissuading [Appellant] from
      getting on the witness stand and testifying in his own behalf,
      convinced that if [Appellant] testified, he would be found
      guilty[]?

Appellant’s Brief at 3.

      We initially note that “[t]his Court’s standard of review from the grant

or denial of post-conviction relief is limited to examining whether the lower

court’s determination is supported by the evidence of record and whether it



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is free of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.

1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa.

1995)).   Where, as here, a petitioner claims that he received ineffective

assistance of counsel, he

     will be granted relief only when he proves, by a preponderance
     of the evidence, that his conviction or sentence resulted from the
     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. Counsel is presumed effective, and to rebut
     that presumption, the PCRA petitioner must demonstrate that
     counsel's performance was deficient and that such deficiency
     prejudiced him.       In Pennsylvania, we have refined the
     Strickland [v. Washington, 104 S.Ct. 2052 (1984),]
     performance and prejudice test into a three-part inquiry. See
     [Commonwealth v.] Pierce, [527 A.2d 973 (Pa. 1987)]. Thus,
     to prove counsel ineffective, the petitioner must show that: (1)
     his underlying claim is of arguable merit; (2) counsel had no
     reasonable basis for his action or inaction; and (3) the petitioner
     suffered actual prejudice as a result. If a petitioner fails to prove
     any of these prongs, his claim fails.         Generally, counsel's
     assistance is deemed constitutionally effective if he chose a
     particular course of conduct that had some reasonable basis
     designed to effectuate his client's interests. Where matters of
     strategy and tactics are concerned, a finding that a chosen
     strategy lacked a reasonable basis is not warranted unless it can
     be concluded 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
     unprofessional errors, the result of the proceedings would have
     been different. A reasonable probability is a probability that is
     sufficient to undermine confidence in the outcome of the
     proceeding.

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014) (some citations

omitted; quotation marks and brackets omitted).



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      In Appellant’s first claim of ineffectiveness, he maintains that his trial

counsel, Brent McCune, Esq., acted ineffectively by not objecting when the

court refused to provide a ‘corrupt source’ jury charge, pertaining to the

testimony of Younger and Richardson.          While Attorney McCune initially

requested such an instruction, he did not object when the court declined to

provide that jury charge. Consequently, on direct appeal, this Court found

that Appellant waived any objection to the omission of the corrupt source

jury instruction.   Appellant maintains that had Attorney McCune properly

objected and preserved this issue for appeal, “there is a reasonable probably

[Appellant] would have been awarded a new trial.” Appellant’s Brief at 8.

      We disagree. As our Supreme Court has explained:

             A corrupt source instruction advises the jury that if it finds
      that a certain witness who testified against the defendant was an
      accomplice of the defendant in a crime for which he is being
      tried, then the jury should deem that witness a “corrupt and
      polluted source” whose testimony should be considered with
      caution. Commonwealth v.[] Williams, 557 Pa. 207, 732 A.2d
      1167, 1181 (1999); accord Commonwealth v. Hackett, 534
      Pa. 210, 627 A.2d 719, 724 (1993). The instruction is warranted
      only in cases in which there is sufficient evidence to present a
      jury question with respect to whether the witness is an
      accomplice. [] Williams, 732 A.2d at 1181; Hackett, 627 A.2d
      at 724.

              Section 306(c) of the Crimes Code defines accomplice
      liability as follows:

         (c) Accomplice defined.—A person is an accomplice of
         another person in the commission of an offense if:

            (1) with the intent of promoting or facilitating the
            commission of the offense, he:

                (i) solicits such other person to commit it; or


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               (ii) aids or agrees or attempts to aid such
               other person in planning or committing it; or

         (2) his conduct is expressly declared by law to establish his
         complicity.

      18 Pa.C.S. § 306(c). Accordingly, accomplice liability requires
      evidence that the person: (1) intended to aid or promote the
      substantive offense; and (2) actively participated in that offense
      by soliciting, aiding, or agreeing to aid the principal.
      Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1014
      (2007), cert. denied, 552 U.S. 1316, 128 S.Ct. 1879, 170
      L.Ed.2d 755 (2008). One merely present at the crime scene is
      not an accomplice, id., nor is one who merely helps an offender
      try to escape arrest or punishment an accomplice,
      Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176, 1183
      (1993); Hackett, 627 A.2d at 725.

Commonwealth v. Collins, 957 A.2d 237, 262-63 (Pa. 2008).

      Here, Appellant contends that a corrupt source charge was warranted

because Younger and Richardson were accomplices in the shootings.

Appellant’s co-defendant, Peterson, asserted this same argument on direct

appeal, and this Court rejected it. See Commonwealth v. Peterson, No.

368 WDA 2010, unpublished memorandum at 5 (Pa. Super. filed March 16,

2010). In doing so, we relied on the rationale expressed in the trial court’s

Rule 1925(a) opinion. See id. The trial court opinion in Peterson’s case was

identical to the trial court opinion issued in Appellant’s case.

      In that decision, the trial court concluded that Peterson’s and

Appellant’s claim that Younger and Richardson were accomplices was a “bald

assertion” that was not supported by the evidence presented at trial. See

Trial Court Opinion, 9/6/11, at 20-22.      The trial court instead found that

“[t]he only evidence in the record that touche[d] upon Richardson[’s] and


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Younger’s involvements in the shootings was the fact that they were present

at the scene of these shootings.” Id. at 21. Therefore, the court concluded

that “Peterson and Pritchett were not entitled to the corrupt and polluted

source instruction since the record fail[ed] to demonstrate how either

Richardson[’s] or Younger’s presence at these shootings could ever implicate

them as an accomplice or co-conspirator.” Id. at 22. In Peterson’s appeal,

this Court agreed with the trial court’s conclusion, and affirmed the court’s

decision not to provide the requested ‘corrupt source’ jury instruction.

Peterson, No. 368 WDA 2010, unpublished memorandum at 5.

      This Court’s decision in Peterson’s direct appeal convinces us that

Appellant’s underlying claim that a corrupt source jury charge was warranted

lacks arguable merit.       This is especially true where Appellant offers no

discussion of how or why this Court would have concluded that Younger and

Richardson were Appellant’s accomplices, yet not Peterson’s. Consequently,

Appellant’s first claim that Attorney McCune acted ineffectively is meritless.

      In Appellant’s second IAC claim, he maintains that Attorney McCune

erred by not objecting to the introduction of Richardson’s preliminary

hearing testimony. Appellant argues that that evidence was inadmissible at

trial because Appellant was deprived of his right to fully cross-examine

Richardson during     the    preliminary   hearing.   In Commonwealth v.

Bazemore, 614 A.2d 684 (Pa. 1992), our Supreme Court explained:

      Under both our federal and state constitutions a criminal
      defendant has a right to confront and cross-examine witnesses
      against him. Commonwealth v. McGrogan, 523 Pa. 614, 568

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J-S55029-15


     A.2d 924 (1990) (collecting cases). However, it is well
     established that an unavailable witness' prior recorded testimony
     from a preliminary hearing is admissible at trial and will not
     offend the right of confrontation, provided the defendant had
     counsel and a full opportunity to cross-examine that witness at
     the prior proceeding. Commonwealth v. Rodgers, 472 Pa.
     435, 372 A.2d 771 (1977).

Id. at 685.

     We need not address whether Appellant had a full and fair opportunity

to cross-examine Richardson at the preliminary hearing, or whether Attorney

McCune had a reasonable basis for not objecting to the admission of

Richardson’s preliminary hearing testimony, as Appellant has failed to prove

the prejudice prong of the ineffectiveness test.        We reiterate that to

demonstrate counsel’s ineffectiveness, Appellant must prove that he suffered

‘actual prejudice’ or, in other words, that there is a reasonable probability

that the result of the proceeding would have been different but for counsel’s

purported error. See Spotz, 84 A.3d at 312. “A reasonable probability is a

probability that is sufficient to undermine confidence in the outcome of the

proceeding.”     Id.   In this vein, Appellant states, “[t]he outcome would

clearly have been different without Richardson’s testimony[,]” because “[i]t

was Richardson who put [Appellant] at the scene of the crime [and] driving

the car….”     Appellant’s Brief at 13-14.   Appellant also declares that had

Attorney McCune objected [to the admission of Richardson’s preliminary

hearing testimony], “the transcript would have been inadmissible and that

would have gone a long way in the defense of this case.” Id. at 19.




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       These assertions are insufficient to demonstrate actual prejudice.

Richardson was not the only witness who testified that Appellant was present

during the shootings; Jamal Younger also testified that Appellant was driving

the vehicle when the shootings occurred. N.T. Trial, 10/27/09-10/29/09, at

289.    Additionally, the jury heard evidence that, on the night of the

shootings, Younger told police that Appellant said he “was on G shit[,]” id. at

295, which Younger understood as meaning that Appellant was “doing some

gangster shit which is shooting at Crips….” Id. at 301. Younger also told

police that Appellant drove toward an area of the city called “the cave,” id.

at 295, and stated that “[t]here is no other reason to go to the cave other

than to shoot someone.” Id. at 296. Younger explained that once in ‘the

cave,’ Appellant “drove past a group of people on Morrison” and then “made

a U-turn” to drive past the group again while “[t]he front passenger pulled

out and fired two shots into the group….” Id. at 295.

       Based on Younger’s testimony alone, the jury could have concluded

that Appellant was not only present during the shootings, but that he

participated in those offenses by driving the vehicle from which Peterson

fired at the victims.     Appellant fails to explain how the absence of

Richardson’s preliminary hearing testimony would have cast doubt on

Younger’s trial testimony. Therefore, Appellant’s scant argument regarding

the prejudice prong of the IAC test has failed to convince us that the jury’s

verdict would have been different had Richardson’s preliminary hearing




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testimony been objected to by Attorney McCune, and not admitted into

evidence.

        In Appellant’s next IAC claim, he maintains that Attorney McCune

deprived him of his constitutional right to a public trial by incorrectly

informing Appellant’s parents that they were not permitted in the courtroom

during jury voir dire. In addressing this claim, we begin by acknowledging

that:

        The Sixth Amendment right to a public trial in a criminal case is
        binding on the states through the due process clause of the
        Fourteenth Amendment.

        The Pennsylvania Constitution likewise guarantees an accused's
        right to a public trial. The right to a public trial is applicable to
        voir dire proceedings.

                                       ***

        In determining whether the voir dire procedure ... violated [a
        defendant's] right to a public trial, we keep in mind that such
        right serves two general purposes: (1) to prevent an accused
        from being subject to a star chamber proceeding; and (2) to
        assure the public that standards of fairness are being observed.
        The public's right to attend a trial is not absolute, and exists as a
        guarantee of fairness in judicial conduct during criminal court
        proceedings. Where trial courts perceive a threat to the orderly
        administration of justice in their courtrooms by an
        unmanageable public, they may always place reasonable
        restrictions on access to the courtroom, so long as the basic
        guarantees of fairness are preserved such as by the presence of
        the press and the making of a record for later review.

        The question in a particular case is whether that control [over
        the courtroom] is exerted so as not to deny or unwarrantedly
        abridge ... the opportunities for the communication of thought
        and the discussion of public questions immemorially associated
        with resort to public places.




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Commonwealth v. Phillips, 946 A.2d 103, 109 (Pa. Super. 2008) (internal

citations and quotation marks omitted).

         Here, it is apparent from the record that the trial court did not exclude

the public from the jury voir dire proceeding. Moreover, Attorney McCune

did not have the authority, nor did he attempt, to exclude the public from

that portion of Appellant’s trial.       While Attorney McCune conceded at the

PCRA hearing that he informed Appellant’s parents that they could not be in

the      courtroom   during    the   jury      selection   proceeding,   that   incorrect

information did not constitute the exclusion of the public from Appellant’s

trial.    See N.T. PCRA Hearing, 7/14/13, at 20.                Therefore, Appellant’s

contention that his right to a public trial was violated due to Attorney

McCune’s conduct lacks arguable merit.1
____________________________________________


1
   In any event, we note that even if Appellant’s underlying claim had
arguable merit, we would conclude that he has not demonstrated that he
was prejudiced by Attorney McCune’s conduct. Appellant argues in his brief
to this Court that “no showing of prejudice is required where a violation of
an accused’s right to a public trial is asserted[,]” as such a violation
constitutes a “structural error” that carries a presumption of prejudice.
Appellant’s Brief at 25. Appellant’s ‘presumption of prejudice’ argument is
correct in the context of a direct appeal. See Sullivan v. Louisiana, 508
U.S. 275, 281-282 (1993) (explaining that harmless-error review does not
pertain to structural errors); Commonwealth v. Rega, 20 A.3d 777, 786
(Pa. 2013) (stating “various courts have found a violation of the right to a
public trial to be in the nature of a structural error”). See also Waller v.
Georgia, 467 U.S. 39, (1984) (concluding, in context of a direct appeal, that
“the defendant should not be required to prove specific prejudice in order to
obtain relief for a violation of the public-trial guarantee”). However, where,
as here, a public-trial violation is asserted in the context of an ineffective
assistance of counsel claim, the petitioner must prove that prejudice resulted
from counsel’s conduct. See Rega, 20 A.3d at 787 (holding that because
(Footnote Continued Next Page)


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      In Appellant’s fourth issue, he avers that Attorney McCune “was

ineffective for not calling any good character witnesses where [Appellant]

had no prior adult criminal record and counsel’s reasoning was flawed.”

Appellant’s Brief at 28 (unnecessary capitalization omitted). To prove that

counsel was ineffective for failing to call character witnesses, Appellant must

demonstrate, inter alia, that such witnesses were available and willing to

testify at Appellant’s trial, and that Attorney McCune knew or should have

known of the witnesses’ existence. Commonwealth v. Treiber, -- A.3d --,

2015 WL 4886374 (Pa. 2015) (citing Commonwealth v. Chmiel, 889 A.2d

501, 546 (Pa. 2005)).

      The PCRA court concluded that Appellant failed to meet this burden,

and the record supports that determination. Namely, at the PCRA hearing,

Appellant presented the testimony of three potential character witnesses:
                       _______________________
(Footnote Continued)

the appellant “did not object to the after-hours courtroom arrangements
[which ostensibly violated his right to a public trial], the only cognizable
aspect of his claim is that of deficient stewardship, as to which he must
establish prejudice”) (citation omitted; emphasis added); Commonwealth
v. Johnson, 500 A.2d 173, 177 (Pa. Super. 1985) (applying the ‘actual
prejudice’ standard when assessing Johnson’s claim that his right to a public
trial was violated, and that counsel acted ineffectively by failing to object to
the court’s conducting nonpublic jury selection). Here, Appellant offers no
discussion of how he was prejudiced by Attorney McCune’s improperly
informing his parents that they could not attend the jury selection
proceeding. See Appellant’s Brief at 20-27 (claiming only that prejudice is
presumed where a violation of the right to a public trial occurs).
Accordingly, even if Appellant’s underlying claim had arguable merit, we
would conclude that he has failed to demonstrate that he was prejudiced by
Attorney McCune’s conduct.




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Patricia Thompson, Dwayne James, and Gregory Johnston. These witnesses

each testified that they were willing and available to testify at Appellant’s

trial, but were not contacted by Attorney McCune. See N.T. PCRA Hearing,

6/24/13, at 4-5, 15, 25-26.      Appellant testified that he gave Attorney

McCune “a list of people” willing to testify as character witnesses; however,

Appellant did not name any of the individuals he included on that list. Id. at

43. When Attorney McCune later took the stand, he testified that prior to

Appellant’s trial, he compiled a “character witness file,” which contained a

document that had “at least ten if not more names” of potential character

witnesses that Appellant had provided to counsel.        N.T. PCRA Hearing,

7/14/13, at 27-28.    While Attorney McCune was not asked to state the

names of each of those witnesses, he testified that he “tried to contact them

all” and, in doing so, he discovered that only five of the witnesses were

willing to testify and could have offered proper character testimony. Id. at

29.   Attorney McCune named those witnesses as Atrio Walker, Markaiea

McPherson, Denise Rideout, Ben Dixon, and Ira Lewis. Id.

      The PCRA court states that it “does not view as credible the testimony

of [Appellant] or the witnesses presented as character witnesses at the PCRA

[h]earing that they were available and made known to trial counsel at the

time of trial.” PCRA Court Opinion (PCO), 3/23/15, at 9. Accordingly, the

court concludes that Appellant failed to demonstrate that Attorney McCune

acted ineffectively in this regard. The record supports the court’s credibility

determinations and legal conclusions. Appellant did not testify that he told

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Attorney McCune about Thompson, James, and/or Johnston, and Attorney

McCune did not specifically name any of those witnesses as individuals who

were proper character witnesses that were available and willing to testify.

Accordingly, Appellant has failed to demonstrate that counsel was ineffective

for not presenting these witnesses at trial.

      In Appellant’s fifth and final claim of ineffectiveness, he argues that

Attorney McCune interfered with his right to testify. Appellant contends that

Attorney McCune did not “explain the defense to him,” or “the positives and

negatives” of taking the stand.      Appellant’s Brief at 39.    Appellant also

asserts that Attorney McCune “told [Appellant] that he believed that it was

unnecessary for [Appellant] to testify.” Id. Appellant further avers that his

decision not to testify was not knowing and intelligent “[b]ecause of his age,

inexperience, immaturity and the influence placed upon him by his

attorney….” Id.

      In rejecting this claim of ineffectiveness, the PCRA court noted that

Attorney McCune testified at the PCRA hearing,

      that he and [Appellant] spoke extensively about the question as
      to whether or not [Appellant] should testify. [Attorney] McCune
      noted [Appellant’s] concerns about testifying based on concerns
      for his family’s safety, specifically his sister. [Counsel] testified
      that he really wanted [Appellant] to testify, despite [Appellant’s]
      fears. [Attorney] McCune testified that [Appellant’s] decision
      was made at the Allegheny County Jail during a “solemn
      moment[.”]

PCO at 9-10.




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      The PCRA court also emphasized that through a colloquy conducted

during trial, Appellant was “advised of his right to testify at length.” Id. at

9. Moreover, the trial transcript reflects that after that colloquy, conducted

on Friday, October 30, 2009, Appellant indicated that he was “wavering back

and forth” about taking the stand, but “believe[d] [he was] going to

testify….”   N.T. Trial, 10/30/09-11/4/09, at 69.     Attorney McCune then

explained to the court that he “spent two hours” with Appellant the night

before the colloquy and “recommended that [Appellant] testify.” Id. at 70.

However, Appellant was “concern[ed] for his safety, his sister’s safety, [and

the safety of] his family members….” Id. The trial court then recessed to

provide Appellant time to consult with his family. Id. at 70-71. Ultimately,

Appellant was not again asked about his decision to testify until trial

commenced on Monday, November 1, 2009.             See N.T. Trial, 10/30/09-

11/4/09, at 184, 187.    At that time, Appellant informed the court that he

had decided not to take the stand, and stated to the court that his decision

was “free and voluntary.” Id. at 187. Appellant also stated that he had not

been “forced, threatened, or coerced” into making that decision. Id.

      Based on this record, the PCRA court concluded that Appellant “was

fully advised of his rights concerning his ability to testify, thoroughly

discussed this matter with his lawyer, and decided not to testify, despite

counsel’s belief that he wanted [Appellant] to testify.”         PCO at 10.

Accordingly, the court concluded that Appellant’s claim that Attorney McCune

ineffectively interfered with Appellant’s right to testify was “without merit.”

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Id. After reviewing the portions of the trial record cited by the court, as well

as the PCRA hearing transcripts, we ascertain no legal error in the PCRA

court’s decision.

      In sum, we conclude that none of Appellant’s IAC claims warrants

relief. Accordingly, we affirm the PCRA court’s order denying his petition.

      Order affirmed.

      President Judge Emeritus Ford Elliott joins this memorandum.

      Judge Strassburger files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2015




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