J. S26027/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
MICHAEL ALLEN WILLIAMS,                     :
                                            :
                          APPELLANT         :
                                            :     No. 1259 MDA 2016

                  Appeal from the PCRA Order June 28, 2016
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000414-2014

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.:                                FILED JUNE 22, 2017

        Appellant, Michael Allen Williams, appeals from the June 28, 2016

Order denying his first Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, and challenges, inter alia, the

effectiveness of trial counsel. After careful review, we affirm on the basis of

the trial court’s Opinion.

        The trial court’s Pa.R.A.P. 1925(a) Opinion includes a thorough and

complete narrative of the facts and procedural history of this case, which we

adopt for purposes of this appeal. See Trial Court Opinion, filed 6/28/16, at

2-12. While we will not go into exhaustive detail here, some of the relevant

facts are as follows.

*
    Former Justice specially assigned to the Superior Court.
J. S26027/17


      On February 15, 2014, at a bar in the city of Lebanon, Appellant,

believing that the victim had been flirting with his girlfriend, entered the bar

with a knife in his hand, walked directly up to the victim at a fast pace, and

began stabbing him. Although the victim was unarmed, he was able to fight

off Appellant, eventually subduing him.          The bartender, Lori Smith,

witnessed the fight. In addition, security cameras inside the bar captured

the entire incident from two different angles. Police transported the victim,

who was bleeding heavily from 13 stab wounds, to the Hershey Medical

Center by ambulance, where he was treated for his injuries.

      Police officers who responded to the scene arrested Appellant and

charged him with Attempted Homicide, Aggravated Assault, and other

related charges.

      Appellant proceeded to a jury trial.     On August 6, 2014, the jury

acquitted Appellant of the Attempted Homicide charge, but found him guilty

of Aggravated Assault and all other related charges. On October 29, 2014,

the trial court sentenced Appellant to 11½ to 23 years of imprisonment.

      Appellant filed a timely pro se PCRA Petition.          The PCRA court

appointed counsel, who filed an Amended PCRA Petition on April 5, 2016.

      The PCRA court held an evidentiary hearing on June 20, 2016.           On

June 28, 2016, the PCRA court entered an Order denying Appellant’s PCRA

Petition.




                                     -2-
J. S26027/17


      Appellant timely appealed, and all parties complied with Pa.R.A.P.

1925. On appeal, Appellant raises six issues.

      1. Whether Trial Counsel was ineffective when she failed to
      object to the Commonwealth’s leading questions and hearsay
      evidence from multiple witnesses during Appellant’s [t]rial?

      2. Whether Trial Counsel was ineffective when she failed to call
      witnesses on Appellant’s behalf at trial where the Appellant gave
      Trial Counsel a list of potential witnesses and phone numbers
      and specifically told Trial Counsel that he definitely wanted
      [Appellant’s girlfriend,] Melissa Eiler[,] to testify on his behalf?

      3. Whether Trial Counsel was ineffective when she failed to
      properly cross-examine the Commonwealth’s witness, Lori
      Smith, where her testimony clearly contradicted the video
      footage, and where said contradiction would have shown the jury
      that it was plausible that [] Appellant did not wield a weapon?

      4. Whether Trial Counsel was ineffective when she failed to
      introduce the alleged victim’s toxicology reports from the night
      of the alleged incident, where said reports were known and
      available to Trial Counsel, and would have supported Appellant’s
      self-defense claim?

      5. Whether Trial Counsel was ineffective when she allowed the
      Trial Court to utilize an incorrect criminal record at [s]entencing?

      6. Whether Appellant was denied his constitutionally-guaranteed
      right to due process when the Commonwealth disclosed
      information to the alleged victim prior to his testimony,
      regarding the whereabouts of the weapon that was used in the
      alleged incident?

Appellant’s Brief at 4-5 (reordered for ease of disposition).

      When reviewing the denial of PCRA Petition, “we examine whether the

PCRA court’s determination is supported by the record and free of legal

error.”   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal

quotation marks and citation omitted).      We grant great deference to the



                                     -3-
J. S26027/17


findings of the PCRA court, and “these findings will not be disturbed unless

they have no support in the certified record.” Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa. Super. 2003). “The scope of review is limited to the

findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level.” Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).          Moreover,

“[w]here a PCRA court’s credibility determinations are supported by the

record, they are binding on the reviewing court.”        Commonwealth v.

White, 734 A.2d 374, 381 (Pa. 1999).          With this standard in mind, we

address each of Appellant’s claims.

                       Ineffective Assistance Claims

      Appellant’s first five issues contend that trial counsel provided

ineffective assistance to Appellant.       In analyzing claims of ineffective

assistance of counsel, we presume that counsel was effective unless the

PCRA petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d

1167, 1177 (Pa. 1999).       In order to succeed on a claim of ineffective

assistance of counsel, Appellant must demonstrate (1) that the underlying

claim is of arguable merit; (2) that counsel’s performance lacked a

reasonable basis; and (3) that the ineffectiveness of counsel caused the

appellant prejudice.   Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa.

2003). “[Where] the underlying claim lacks arguable merit, counsel cannot

be deemed ineffective for failing to raise it.”   Commonwealth v. Koehler,



                                      -4-
J. S26027/17


36 A.3d 121, 140 (Pa. 2012). Appellant bears the burden of proving each of

these elements, and his “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) (citation omitted).

     In his first ineffectiveness claim, Appellant points to seven specific

instances in which he avers that the Commonwealth improperly asked

leading questions of witnesses or elicited hearsay testimony from witnesses.

In each of these seven instances, Appellant avers that trial counsel was

ineffective for failing to object.   See Appellant’s Brief at 9-20.       The

Honorable Bradford H. Charles has authored a comprehensive, thorough,

and well-reasoned Opinion, separately addressing each of Appellant’s seven

claims, with references to the record and a thorough discussion of the

relevant case law. After a careful review of the parties’ arguments and the

record, we affirm on the basis of that Opinion, which found that certain

leading questions from the Commonwealth were not improper, and that

Appellant was not prejudiced by trial counsel’s failure to object where the

testimony or questions may have been improper. See Trial Court Opinion at

14-21.

     Second, Appellant avers that trial counsel was ineffective for failing to

call three witnesses: his girlfriend, Melissa Eiler, as well as Java Pinson,

Dawn Justiano, and Latoya Williams.        Appellant’s Brief at 20-26.   Judge

Charles’ Opinion includes a comprehensive, thorough, and well-reasoned



                                     -5-
J. S26027/17


discussion of this claim.   After a careful review of the parties’ arguments,

and the record, we affirm on the basis of that Opinion, which found that: (i)

Appellant failed to establish that Java Pinson, Latoya Williams, or Latoya

Williams were known to trial counsel and available at trial; (ii) trial counsel

strategically chose not to call Melissa Eiler because her testimony, that the

victim had made romantic advances towards her, would support the

Commonwealth’s theory of motive; and (iii) Appellant was not prejudiced by

trial counsel’s failure to call Melissa Eiler because she could only testify to

threats the victim made to Appellant after Appellant had already stabbed

the victim. Trial Court Opinion at 22-23.

      Third, Appellant avers that trial counsel was ineffective for failing to

cross-examine     Commonwealth’s      witness     Lori   Smith   on    alleged

inconsistencies between her testimony and the surveillance footage of the

attack.   Appellant’s Brief at 27-31.       Judge Charles’ Opinion includes a

comprehensive, thorough, and well-reasoned discussion of this claim. After

a careful review of the parties’ arguments, and the record, we affirm on the

basis of that Opinion, which found that trial counsel was not ineffective for

failing to cross-examine Lori Smith on the alleged inconsistencies because

there were no substantive inconsistencies between her testimony at trial and

the surveillance footage.1 Trial Court Opinion at 23-24.


1
   At the PCRA hearing, Appellant explained the lack of substantive
inconsistencies by averring that someone must have altered the surveillance



                                     -6-
J. S26027/17


         Fourth, Appellant avers that trial counsel was ineffective for failing to

present a toxicology report that revealed that the victim had drugs in his

system at the time Appellant stabbed him.            Appellant’s Brief at 31-35.

Judge Charles’ Opinion includes a comprehensive, thorough, and well-

reasoned discussion of this claim.       After a careful review of the parties’

arguments, and the record, we affirm on the basis of that Opinion, which

notes that trial counsel was not ineffective for failing to introduce the report

into evidence because “no such toxicology report exists.” Trial Court Opinion

at 24.

         Fifth, Appellant avers that trial counsel was ineffective for failing to

challenge the veracity of four felony convictions from North Carolina that

were included in Appellant’s prior record score. Appellant’s Brief at 38-44.

Judge Charles’ Opinion includes a comprehensive, thorough, and well-

reasoned discussion of this claim.       After a careful review of the parties’

arguments, and the record, we affirm on the basis of that Opinion, which

found that: (i) trial counsel was not ineffective for failing to challenge the

inclusion of his prior convictions in Appellant’s prior record score where she

had investigated Appellant’s mistaken identity claim and learned that his

prior record had been verified using Appellant’s name, date of birth, Social

Security number, and fingerprints; and (ii) even if the contested convictions

footage. Trial Court Opinion at 23. The trial court found no evidence to
support this claim, and Appellant does not advance this claim in his Brief to
this Court.



                                        -7-
J. S26027/17


had not been included in Appellant’s prior record score, Judge Charles, who

sentenced Appellant, would have imposed the same sentence.         Trial Court

Opinion at 25-28.

                            Prosecutorial Misconduct

      In his final claim, Appellant avers that the prosecutor committed

prosecutorial misconduct when she disclosed information to the victim in

order to evoke that information from him during his direct examination.

Appellant’s Brief at 35-38.    Specifically, Appellant avers that the victim

testified at trial that Appellant “went home and took the knife off the wall to

come back and kill [the victim].” Id. at 37. According to Appellant, there is

no way the victim could have known that the knife hung on the wall in his

home and, therefore, the Commonwealth must have improperly given the

victim this information. Id.

      Appellant’s Brief quotes Appellant’s testimony at the PCRA hearing,

where he claimed to recall the victim offering that testimony at trial. Id. at

36-37. Appellant does not provide citation to the trial transcript indicating

where the victim testified to the location of the knife in Appellant’s home.

Further, Appellant does not direct our attention to any evidence that would

support his bald allegation of prosecutorial misconduct.

      Judge Charles’ Opinion includes a comprehensive, thorough, and well-

reasoned discussion of this claim.    After a careful review of the parties’

arguments, and the record, we affirm on the basis of that Opinion, which



                                     -8-
J. S26027/17


found, inter alia, that Appellant misrepresents the victim’s testimony and the

trial transcript is “devoid of any testimony indicating where [Appellant] kept

a knife within his home.” Trial Court Opinion at 24-25.

      The parties are directed to attach a copy of the trial court’s June 28,

2016 Opinion to all future filings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/22/2017




                                      -9-
                                                                                     Circulated 05/22/2017 01:49 PM


                                                                                          [~:~:~=o r~ r:. :o
                                                                                          CLE:-::: Or C~jr:,s
              IN THE COURT OF COMMON PLEAS LEBANON                              COUNTY::3A .. : ... PA
                                         PENNSYLVANIA                               ~:~S ~~.! 2 8    -n ~       (JQ
                                    CRIMINAL            DIVISION

COMMONWEAL TH OF                                                NO. CP-38-CR-414-2014
PENNSYLVANIA

         v.
MICHAEL WILLIAMS


APPEARANCES

Pier Hess, Esquire                                For Commonwealth             of Pennsylvania
DISTRICT ATTORNEY'S OFFICE

Elizabeth        Judd, Esquire                    For Michael Williams


OPINION BY CHARLES,                J., June 28, 2016

         Sometimes        when we sit in PCRA Court, we silently wonder:                       "Can he

really        believe     this?"    In     this     case,     Michael      Williams         (hereafter

"DEFENDANT")             stabbed   another individual 13 times in a bar.                    The event

was captured            on videotape     shown to jurors.            Despite    the overwhelming

evidence        against     him,   DEFENDANT            now blames       his conviction         on his

former        lawyer.     Without any supporting            proof,    he claims     that     the video

surveillance tape was altered.              Also without proof, he alleges                that his trial

counsel should have produced a non-existent toxicology                          report.     He further

complains        that the official Court Reporter           intentionally omitted          testimonial

exchanges that he professes              to recall from the trial.      If this were not enough,

he also claims that his prior record was incorrectly reported ... even though




                                                    1
it was verified by use of name, date of birth, Social Security Number and

fingerprints.

        The more we listened to testimony at the time of the June 20, 2016

PCRA Hearing,             the more we became                   convinced         that DEFENDANT                was

suffering from self-serving delusions.                        For reasons that we unfortunately1

are required to outline in more detail within the body of this Opinion, we will

be denying all of DEFENDANT's                       PCRA issues.


I.      FACTS

        DEFENDANT's               charges arise as a result of an incident that occurred

on February         15, 2014 at approximately                  11:45 p.m. inside the Liberty Bar

(hereafter "BAR") located in the City of Lebanon, Pennsylvania.                                      (N.T. 79).

Much of the incident was captured on a video recording system maintained

by BAR.

         Lori Smith (hereafter "SMITH") and Melissa Eiler (hereafter "EILER")

were employed             as bartenders         at BAR.         (N.T. 8).       EILER's       boyfriend       was

DEFENDANT.                (N.T.     8).       Patrick      Embry       (hereafter "VICTIM")               was a

customer       at BAR.        (N.T. 9). Prior to February                 15, 2015, SMITH observed

many verbal arguments                 between DEFENDANT                   and VICTIM.           (N.T. 9)



1
 We use the word "unfortunately" because an extraordinary amount of judicial resources were expended to address
DEFENDANT's frivolous arguments. A taxpayer-funded lawyer was appointed for DEFENDANT and that lawyer
spent hours preparing for the PCRA Hearing. The Sheriff of Lebanon County was required to transport
DEFENDANT from his state corrections institution home to Lebanon County for the hearing. One-half day of
precious court time was allotted for DEFENDANT's PCRA Hearing. At some point, a transcript of that hearing will
have to be prepared at taxpayer expense. While there are times when defendants possess legitimate PCRA
arguments and the expenditure of resources on those arguments is essential to the process ofjustice, this is not one
of those circumstances.



                                                          2
       On the evening of February                 15, 2014, both SMITH and EILER were

working at BAR.             EILER finished       work at 9:00 p.m.             EILER stayed in BAR

after her shift had ended because                  DEFENDANT                was there.           They were

both      drinking.         (N.T.    10).       DEFENDANT             and     EILER       left    BAR    but

DEFENDANT               returned       approximately           45      minutes        later.          When

DEFENDANT             entered       BAR the second           time, he was talking                on his cell

phone.       He sounded angry and was speaking                       loudly.     DEFENDANT            again

left BAR.      (N.T. 10-11).           VICTIM came into BAR approximately                          one hour

after DEFENDANT              had left BAR the second time.                   (N. T. 11)

          About     one hour after           the time VICTIM            entered     the      Bar, SMITH

noticed DEFENDANT                 outside BAR. SMITH noticed that DEFENDANT was

walking      very fast and she saw him stick                        something     silver-ish        into his

jacket.      At the time, VICTIM was sitting                  in the back part of BAR in the

poolroom       area drinking         alcohol.     (N.T.      12-13).        SMITH did not see any

signs that VICTIM was intoxicated.                    (N.T. 13).

          Upon observing            DEFENDANT,          SMITH called 911. She was going to

alert VICTIM that "it didn't look good" but was unable to do so. (N.T. 13).

SMITH observed              DEFENDANT           enter       BAR and approach              VICTIM.        She

initially    did      not   see     any     weapon.         (N.T.     14).      When       DEFENDANT

approached         VICTIMr        SMITH saw DEFENDANT                  pull a large knife out and

hit VICTIM on the head a couple of times.                      (N.T. 15). SMITH testified that

this knife was not the same type of knife that DEFENDANT                                         used quite

frequently        to punch a hole in the top of his can of beer.                      (N.T. 22).        At no




                                                        3
point during the evening did SMITH notice VICTIM with a weapon, nor did

she hear anyone threaten           DEFENDANT.     (N. T. · 23).

        A fight broke out between          DEFENDANT      and VICTIM in the foyer of

BAR.     The fight then moved to the poolroom.             (N.T. 15-16).          SMITH was

unable to watch the entire incident because             it was "bloody and horrible."

(N.T.    15).     SMITH      did witness    the end of the fight.           She observed

DEFENDANT          with the knife.    She also saw VICTIM choking DEFENDANT.

When VICTIM got a chance to get away, he got up and put his hoodie up

and walked out the door.             VICTIM was bleeding          very heavily.     (N.T. 16-

17).     SMITH stated that during this entire incident,             she was on the phone

with 911.       (N.T. 16).

        VICTIM testified that he received a phone call from El LER indicating

that DEFENDANT          was looking for him.      (N.T. 39).        While VICTIM was at

BAR sitting at a table          in the foyer area,    he saw DEFENDANT               walking

toward him.        (N.T. 39-40).      VICTIM observed      DEFENDANT          walking very

fast.    At some point VICTIM saw DEFENDANT                reach into his coat for what

he believed       may have been a weapon.          Because VICTIM did not have a

weapon, he tried to defend himself with his hands and body.                   (N.T. 40-41).

VICTIM only realized that he was actually being attacked with a knife when

he felt blood running down his head.           (N.T. 41 ). VICTIM further stated that

he was choking DEFENDANT               and that when he felt DEFENDANT               go limp,

he dropped him, wiped the blood from his eyes, put up his hood and walked

out of BAR.       (N.T. 42; 48).




                                              4
                           -..
        When the police          arrived,     VICTIM      was not very happy           that they

became involved.         Although VICTIM did allow police to call an ambulance

and get him medical treatment, he did not initially want to talk about who

was responsible         for injuring    him.      Eventually,    VICTIM      told police    that

DEFENDANT was the person who had assaulted                       him.     (N.T. 75).

        Upon arrival      at the hospital,        VICTIM's clothing        was pretty      much

soaked by blood.        Hospital staff needed to cut the clothing off of VI CTI M's

body.    VICTIM stated that the blood on the inside of his pants was due to

the fact that while         he was chocking              DEFENDANT,        DEFENDANT         was

"chopping     at my leg" which resulted                in three deep cuts.     (N.T. 49).      In

addition to the multiple cuts to the head, and the cuts on his legs, VICTIM

had cuts on his back, and cuts on both sides of his shoulders.                         (N.T. 52;

Exh. 6A - 6E).

        On February       15, 2014, Officers John Allen and Brandt Zimmerman

of the Lebanon City Police Department                   were dispatched     to BAR for a fight

involving    a knife.    (N.T. 79).         Officer Allen was given a description          of the

victim as wearing        a gray sweatshirt and was told that he was outside                    of

the building walking west on Mifflin Street. (N.T. 79).                   Upon arrival at the

location    of BAR, Officer Allen approached                VICTIM and yelled out to him.

VICTIM      stopped,     turned    around,      and was in a fighting stance.               Once

VICTIM      realized    that Officer Allen was a police officer, he relaxed                  and

Officer Allen was able to speak with him. Officer Allen noticed that VICTIM

was bleeding      profusely from his head at which time he had VICTIM                          sit




                                                   5
down.    (N.T. 80). Officer Allen testified that the blood was pooling around

VICTIM's      feet.   He also observed full depth wound cuts to VICTIM's          leg.

In fact, he was able to see tissue and possibly joints or bone matter inside.

(N.T. 81 ).      Officer Allen immediately requested an ambulance to be sent

to the location.       (N.T. 81).

        Officer Allen spoke with VICTIM briefly.            VICTIM related that there

was an individual by the name of Michael who came into BAR and initiated

a fight with him.         VICTIM further told Officer Allen that the assailant

possessed a knife and that he vigorously defended himself. (N.T. 82).

        After VICTIM was transported to the hospital, Officer Allen entered

the BAR.        He spoke with SMITH.                SMITH told Officer Allen that she

observed DEFENDANT cross the street, enter BAR, and approach VICTIM

and that the fig ht then began. (N. T. 83). She also informed Officer Allen

that EILER was a bartender at BAR and that when VICTIM spoke with

EILER, DEFENDANT did not like that. (N.T. 83).

        Officer Allen photographed blood droplets at the crime scene. Given

Officer Allen's training and experience, he determined that the droplets of

blood were fresh.          (N.T. 85).        The photographs of the blood droplets

depicted blood in the area of the foyer between the poolroom and the bar,

on the wall in the foyer, and on the floor which is where the assault at one

point moved to. (N.T. 85).

        Officer Zimmerman also spoke with SMITH.                  SMITH indicated that

DEFENDANT             was still     inside   BAR.      Officer   Zimmerman   identified



                                                6
DEFENDANT             as a black male with a black knit cap on and a black jacket.

(N.T.      100).      Officer Zimmerman             located DEFENDANT            inside BAR in the

corner of the room, concealing                 the knife.      He stated that DEFENDANT was

trying     place the knife in a holster tied to the inside of his jacket.                         (N.T.

102).      Officer Zimmerman             was able to conduct a search of DEFENDANT.

He       retrieved      two     knives    on        DEFENDANT's         person     and     then    took

DEFENDANT             into custody.       (N.T. 101).

          When        Officer     Zimmerman          arrested     DEFENDANT,             DEFENDANT

stated that VICTIM was "talking trash on his girl" or something                           along those

lines.     He also stated that he did not want matters to progress as they did.

(N.T. 103).           Officer Zimmerman             did not see any gushing open wounds or

anything like that on DEFENDANT.                      However, he did notice some blood on

DEFENDANT'S              hands.    (N.T. 103).

          Officer     Allen traveled        to the Hershey         Medical      Center    in order to

follow up with VICTIM.             He was able to retrieve VICTIM's               clothing from the

hospital.      (N.T. 86).        He was also able to speak with VICTIM who told him

that the fight was between him and DEFENDANT                            and that he had received

a text message from EILER stating that DEFENDANT                               was looking for him.

(N.T.      87).        VICTIM      stated      to    Officer    Allen   that     DEFENDANT          was

"controlling         and possessive"        with respect to EILER.           Officer Al'en was also

able to obtain VICTIM's             medical records.            (N.T. 87).

          Because        of past problems,            BAR maintained           a video    surveillance

system.        Office Zimmerman             retrieved       the tape recording      created       by this



                                                       7
video surveillance system on the night in question.               (N.T. 103).     Tapes

depicting the events in question from two different angles were viewed by

the jury at trial. The video clearly depicted that DEFENDANT was the initial

aggressor.       However, VICTIM actually appeared          to "win" the fight.   While

VICTIM and DEFENDANT            were struggling together, VICTIM landed many

blows upon DEFENDANT.             However,       VICTIM   did not possess a weapon.

The video surveillance images            clearly displayed DEFENDANT          using the

knife that he brought into BAR.             The surveillance     video also depicted

bleeding wounds inflicted by DEFENDANT's              slashing and stabbing actions.

(N.T. 45-48; Exh. 3)

        Officer Patrick McKinney was the supervising officer on the evening

of the incident interviewed DEFENDANT.              DEFENDANT      acknowledged that

he knew VICTIM.        He also indicated that at one point in time, the two were

friends.   DEFENDANT        further stated that he and VICTIM had a falling out

over EILER.       (N.T. 111).   DEFENDANT told Officer McKinney that he called

EILER prior to going to BAR and she confirmed that VI :TIM was there.

(N.T.    112).    Prior to leaving BAR the first time, DEFENDANT           told Officer

McKinney that he and VICTIM had words.              DEFENDANT stated when he left

BAR, he went to Gary's Sports Bar.           He then returned to BAR because          he

needed     to purchase     cigarettes.     Officer McKinney did not believe the

statement about needing to buy cigarettes as there were many other places

to purchase cigarettes, including Gary's Sports Bar.            (N. T 113).




                                             8
        When Officer McKinney   questioned     DEFENDANT     about some of the

issues he had with DEFENDANT's       statements,     DEFENDANT     became very

emotional.   He sobbed and explained       how he felt the incident evolved into

what it did. DEFENDANT stated that he wanted the issue between him and

VICTIM to be over once and for all. In fact, Officer McKinney testified that

DEFENDANT's verbatim statement was "[DEFENDANT] wanted to end it."

DEFENDANT was very vague in his description of the assault itself.            He

stated that he entered BAR, VICTIM stood up and the two came together.

(N.T. 114). DEFENDANT did acknowledge that he went into BAR with his

knife out. (N.T. 115).

        When questioned about the knife found on his person, DEFENDANT

stated that he typically carried a smaller knife which he used to open beer

cans.    (N.T. 116).   He stated that he used the larger knife for protection

when he would go out at night.       (N.T. 146).    Officer McKinney observed

blood on the DEFENDANT's shoes, his shirt, his face and his hands. (N.T.

116). At no point during the interview did DEFENDANT complain of any

injury or pain, nor did he ask to go to the hospital or to seek medical

treatment.    (N.T. 119).


II.     PROCEDURAL BACKGROUND

        Charges were filed against DEFENDANT on February 16, 2014. The

most serious offense alleged was Attempted Homicide. All of the charges

stemmed from the stabbing incident that occurred within the Liberty Bar on
February 15, 2014.


                                       9
                            ·-......




       DEFENDANT's             case proceeded          to trial during the August 2014 term

of court.    After a full day of testimony, a jury rendered                    a split verdict on

August 6, 2014.       The jury acquitted DEFENDANT of the Attempted                        Homicide

charge,     but found      him guilty of all other counts,                including     Aggravated

Assault.     In addition, the jury determined that DEFENDANT                           employed       a

deadly weapon during the course of committing the assault.

       DEFENDANT           was sentenced              on October    29, 2014.      At sentencing,

this Court noted DEFENDANT's                    significant prior record from North Carolina

that included one prior conviction for Assault with a Deadly Weapon.                            In our

Sentencing       Order,     we also           referenced     the surveillance      videotape that

depicted the altercation within the Liberty Bar. We described                         DEFENDANT

as "marching       into the bar with the mission of confronting an individual with

whom he had prior problems."                    We also concluded:         "But for the grace of

God the victim would                   have    been    killed."    We    ultimately    imposed       an

aggregate      sentence of 11 % to 23 years of imprisonment.

        On November               13, 2014,      DEFENDANT         filed timely Post-Sentence

Motions seeking to challenge the weight and sufficiency of evidence against

him.      On April 9, 2015, we issued an Order denying                     DEFENDANT's           Post-

Sentence      Motions.           We reminded          DEFENDANT         that he had 30 days to

appeal      our decision.              He did not do so.           However,    in June      of 2015,

DEFENDANT          filed numerous             self-styled documents,      including     one entitled

"Motion to Appoint New Counsel for PCRA and Appeal. "2


2
  Because we mistakenly believed that DEFENDANT had filed an Appeal, we did not take any immediate action
regarding the pro se documents that he filed.


                                                      10
      On      December       10,     2015,        DEFENDANT        again    filed    numerous

documents.        In response, .we issued a Court Order on December                   23, 2015
advising   DEFENDANT         of his right to file a PCRA Petition            within one year

following the date on which his conviction               was made final.     On January      12,

2016, DEFENDANT filed his Post-Conviction Relief Petition.                     VVe appointed

Attorney      Melissa     Montgomery         to    represent      DEFENDANT.           Attorney

Montgomery        filed an Amended      PCRA Petition on April 5, 2016.             Thereafter,

we scheduled       a   hearing for June 20, 2016.

      DEFENDANT           was transported           to Lebanon     County    and personally

appeared at his June 20, 2016 PCRA Hearing.                    As is our practice in PCRA

cases, we asked Attorney Montgomery                    to outline on the record and in the

presence      of her client all of the issues that were proposed to be litigated.

Attorney Montgomery         outlined the following issues:

(1)    DEFENDANT's          trial counsel         failed to object     to leading    questions

      asked during the course of trial.

(2)    DEFENDANT's          trial counsel         failed to object to questions         at trial

      seeking to elicit hearsay responses.

(3)   Trial     counsel     failed     to    cross      examine      Lori   Smith     regarding

      "contradictions on the video."

(4)   Trial counsel was ineffective for failing to present VICTIM's toxicology

       reports.




                                                  11
(5)    The District Attorney committed              prosecutorial misconduct                by advising

         Patrick   Embry where        DEFENDANT's            knife     was located           inside      his

         house.

(6)      Trial counsel       was ineffective for failing to prove that four charges

         contained    on DEFENDANT's             prior record        sheet      were        not actually

         committed    by him.

We received        testimony regarding         all of the above issues.                VVe issue this

Opinion today in order to reject DEFENDANT's                    various claims.


Ill.     LEGAL PRINCIPLES

         The PCRA provides for an action by which innocent persons convicted

of crimes that they did not commit and persons                       serving     illegal sentences

can obtain relief.       42 Pa.C.S. § 9542.            The PCRA is the exclusive                 method

by     which       collateral      relief     may      be    obtained           in      Pennsylvania.

Commonwealth            v.    Chester, 733 A.2d          1242, 1250 (Pa. 1999).                    To be

eligible for relief under the PCRA, a defendant                      must prove the following

elements       by a preponderance           of the evidence:         ( 1) He must prove that he

has been convicted            of a crime under the laws of this Commonwealth                             and

that he is serving           a sentence     of imprisonment,         probation        or parole for a

crime;     (2) he must prove that the conviction                     resulted        from    one of the

enumerated         errors listed in § 9543(a)(2);           and (3) he must prove that the

allegation of error has not been previously litigated or waived.                              Finally,    he

must prove that the failure to litigate the issue prior to or during trial could




                                                  12
not have been the result of any rational,    strategic   or tactical decision   by

counsel.   42 Pa.C.S. § 9543(a).

      Trial counsel will always be presumed effective, and the Defendant

bears the burden of proving otherwise. Commonwealth v. Lewis, 708 A.2d

497, 500 (Pa.Super. 1988) (citing Commonwealth v. Williams, 570 A.2d

75, 81 (Pa. 1990)).    In determining whether counsel rendered ineffective

assistance, the court must first determine whether the issue underlying the

claim of ineffectiveness is of arguable merit. Commonwealth v. DiNicola,

751 A.2d 197, 198 (Pa.Super. 2000) (citing Commonwealth v. Johnson,

588 A.2d 1303, 1305 (Pa. 1991)).       If the claim is without arguable merit,

the Court's inquiry ends, because counsel cannot be deemed ineffective for

failing to pursue a meritless issue. DiNicola, 751 A.2d at 198.

      If a defendant's   underlying    claim is of arguable merit, we must

examine the action chosen by trial counsel in order to ascertain if that

action was designed to effectuate the Defendant's interest.         Id. The fact

that trial counsel's strategy may not ultimately have led to an acquittal does
not render the strategy legally deficient.     Commonwealth v. Spatz, 896

A.2d 1191, 1235 (Pa. 2006).        The Defendant must establish that but for

counsel's deficient performance, the result of his trial would likely have

been different.   DiNicola, 751 A.2d at 198.




                                       13
IV.   DISCUSSION

      A.       Potential       Evidence Obiections

      We begin with recognition         that "the rig ht to a fair trial is not... the right

to a perfect     trial. .. "    Commonwealth v. Pittman, 466 A.2d 1370, 1376

(Pa.Super.     1983), citing Commonwealth v. McQuaid, 417 A.2d 1210

(Pa.Super.     1980).          When ineffectiveness is alleged as a result of an

attorney's failure to pursue evidence              objections,    the Defendant        must

establish not only that a proper objection would have succeeded, but also

that its omission prejudiced the Defendant and was not based upon any

reasonable tactic or strategy.          See, e.g. Commonwealth v. Polston, 616

A.2d 669 (Pa.Super. 1992). Stated differently, "Appellant must prove that

he was 'prejudiced' by the attorney's decisions.                    'Prejudice' can be

described as whether, but for the arguably ineffective act or omission, there

is a reasonable probability that the outcome [of trial] would have been

different." Commonwealth v. Polston, surpa. At 677.

      With respect to decisions involving admission of evidence, a Trial

Judge enjoys wide discretion.              Commonwealth v. Bell, 476 A.2d 439

(Pa.Super. 1984). As our Superior Court has noted:

       Our rules of evidence vest the trial court with the authority to
      determine the admissibility of evidence as well as to control the
      scope of examination ... Appellate review of the court's rulings
      under these rules is limited to determining whether the trial
      judge abused his discretion ... As it applies to rulings on the
      evidence, this standard requires not only technical error but
      also demonstrated harm; 'evidentiary rulings which should not
      affect the verdict will not provide a basis for disturbing the jury's
      judgment.'



                                              14
                                                          .........




Id. at 925 (citations omitted).

      With respect to leading questions, our Superior Court has recently

stated:   "In modern practice, the use of leading questions lies within the

discretion of the trial court and a court's tolerance or intolerance of the

leading questions will not be reversed absent an abuse of its discretion."

Commonwealth v. Welton, 2014 WL 10987061 (Jan. 28, 2014), citing

Commonwealth v. Bell, 476 A.2d 439, 451 (Pa.Super. 1984). While many

novice    practitioners   perceive   that all   leading        questions   on    direct

examination are improper, nothing could be further from the truth. As noted

by a leading criminal law commentator:

      A question is leading when it suggests the answer desired.
      However, questions may reference a particular fact or topic of
      discussion without being misleading. A question is not leading
      merely because it may be answered "yes" or "no." Leading
      questions are permissible on cross-examination, but generally
      not on direct examination.       Leading questions on direct
      examination are permissible, however, when the witness is
      deficient in memory, when the witness is called to contradict
      another, or when such a mode of questioning is consistent with
      a fair trial, when the witness is not familiar with the English
      language,     speaks · English     imperfectly,   understands        the
      language with difficulty, has a limited vocabulary, or is old,
      infirm or difficult to understand; when the witness is a child
      who is not accustomed to court proceedings, or a person who
      is uneducated, unsophisticated or mentally disabled; or when
      the witness is hesitant, evasive, reluctant, adverse or hostile.
      Leading questions, calculated to elicit testimony that is merely
      introductory or preliminary to material evidence, are also
      permissible.

Wharton's Criminal Evidence, Section 8: 15, Leading Questions.

      With respect to alleged ineffectiveness for failing to proffer a hearsay

objection,   our Commonwealth's        highest court has declared "that such



                                         15
claims     made     in        a    vacuum          cannot     provide      a    basis     for     relief."

Commonwealth             v.       Cox,   728       A.2d     923,     933   (Pa.    1999).          If     the

Commonwealth        could have laid            a   sufficient foundation for the admission                 of

such     evidence had a timely objection been                         made,    counsel      cannot be

deemed ineffective for failing to proffer the objection.                          Commonwealth             v.

Cox, supra. Moreover, no attorney has a duty to object to hearsay for which

an exception to the hearsay                rule exists.           See, Pa. R. Ev. 803.          Similarly,

counsel cannot not be ineffective for failing to object to hearsay evidence

that was irrelevant or non-prejudicial.                     Commonwealth          v. Sam, 635 A.2d

603 (Pa. 1993).      On the other hand, where counsel effectively permits the

Commonwealth        to        prove      its entire        case    by hearsay,      and     where         the

cumulative effect of that hearsay evidence created prejudice, a defendant

could be entitled to a fair trial.                 See Commonwealth            v. Seltzer, 437 A.2d

988 (Pa.Super. 1981 ).

         With all of the above legal principles in mind, we will now turn to the

specific complaints proffered by DEFENDANT.

              (1)    Transcript Page 20 - Lines 5-10

         Within the passage              found      on page        20, the prosecutor employed

leading questions to ask the Liberty Bar owner about the physical layout of

the bar.    While the questions asked were clearly leading, the information

sought was neither challenged               nor of critical import to DEFENDANT's                       claim

of self-defense.         We view the information as preliminary and undisputed.

As a result, leading questions are permitted to elicit such information.                                 Had




                                                      16
an objection been made at trial, we would have overruled it.                        Therefore,

counsel cannot be deemed ineffective for failing to proffer the objection.

             (2)      Transcript, Page 21 - Lines 1-1 O; 14-25 and
                      Page 22 - Lines 1-3

      Within this passage,            the prosecutor attempted           to "set the stage" for

what the jury would observe on the surveillance videotape.                      The prosecutor

pointed out where the witness and VICTIM were located and where the fight

between     DEFENDANT           and VICTIM began.          As the prosecutor was asking

questions, she was showing              still photographs from the surveillance video

to the witness.

      During this passage, the prosecutor clearly asked leading questions.

However,    all of the questions were preliminary to the description of the

actual stabbing           incident.     More   important,    the leading        nature   of the

questions could have easily been cured by the prosecutor had an objection

been lodged and sustained. All the prosecutor would have had to do is re-

ask her questions in a non-leading fashion.                 Even had trial counsel lodged

a leading   question        objection, the jury would nevertheless have heard the

same information.            Thus.' trial counsel       cannot be deemed         ineffective for

failing to object to the prosecutor's use of leading questions to describe

what was depicted in still photographs.

               (3)        Transcript Page 39 - Lines 3-7
      Within       this     passage     of   testimony,     the    Commonwealth          elicited

testimony    that VICTIM          received     a    telephone     call   from   DEFENDANT's

girlfriend wherein she said "Mikes looking for you." This was evidence was



                                                   17
not presented             by the Commonwealth             for the truth of the matter asserted;                    it

was presented             to help explain VICTIM's             state of mind when            a confrontation
occurred between VICTIM and DEFENDANT several minutes later.                                                      As

such, the evidence was admissible under the state of mind exception to the

hearsay rule.              See Pa.R.Ev. 803(3).                 Moreover, the admission of this

evidence was not prejudicial; its impact was clearly peripheral and could

not       possibly         have     affected        the     outcome         of    DEFENDANT's               trial.3

DEFENDANT's counsel could not be deemed ineffective for failing to object

to this passage of testimony.

                    (4)     Transcript Page 46 - Lines 1-2

           DEFENDANT argues that his attorney should have objected to the

leading question:              "This object here in his left hand, is that the knife?" We

do not view this question. _as leading simply because it could be answered

with a "yes" or "no." More important, the prosecutor immediately re-asked

the question in a non-leading manner:

           Q.       Now. again here in his left hand raised up, what's in his
                    hand?

           A.       The knife.

(N.T. 46). This passage could not possibly have prejudiced DEFENDANT

to the extent that PCRA relief should be granted.




3
    It is not as though the victim claimed that DEFENDANT's girlfriend stated something to the effect: "Mike is
looking for you because he plans to stab you."



                                                          18
             (5)   Transcript Page 72 - Line 14

      During cross examination, DEFENDANT's attorney asked the victim:

"And for some reason now today you know that she went to the house with

him to get a knife?"     In response, VICTIM responded:       "Yeah.   Mike's

daughter told me about it." (N. T. 72).

      There is no evidence that trial counsel intentionally sought to elicit a

hearsay response by her question.          Moreover, trial counsel actually

exploited this answer by immediately pointing out to the jury tnat VICTIMls

statement disclosed    a detail that had never been disclosed previously.
(N.T. 72).

      During her entire cross examination, trial counsel's primary objective

was to paint VICTIM as someone who was flippant and easy to anger.

Viewed with in the context of this legitimate trial strategy, the entirety of

counsel's cross examination was actually quite effective, and counsel was

able to use VICTIM's unsolicited statement about DEFENDANT's daughter

to her advantage. We do not view the passage on page 72 to be prejudicial

to DEFENDANT. Accordingly, it cannot afford the basis for PCRA relief.

             (6)   Transcript Pages 82-83

      During testimony of. Officer John Allen, the prosecutor elicited b rief

testimony about what both VICTIM and Lori Smith said upon his arrival on

the scene.    During the testimony, the officer described VICl IM's state of




                                      19
mind and physical               condition;        he was bleeding               profusely    as a result         of

multiple wounds.              (N.T. 81-82).4

          The prosecutor's           questioning         of Officer Allen clearly elicited              hearsay

information          that     was     directly     relevant       to the        charges      lodged      against

DEFENDANT.                However, both VICTIM and Lori Smith testified at trial and

were       subject       to   extensive          cross    examination           by trial counsel.             The

information presented through Officer Allen was neither new nor different

from what the jury had already heard.

           In the interest of candor, we very well may have sustained a hearsay

objection had it been lodged during Officer Allen's testimony.                                        However,

there also may have been additional foundation evidence that could have

been presented by the Commonwealth to support the introduction of such

hearsay. 5 More important, we question the import of the evidence that was

introduced.          Given that the jury heard directly from VICTIM and Lori Smith,

and given that the jury watched the video of the stabbing altercation, we

have a hard time believing that the brief hearsay-laden exchange during
Officer Allen's testimony could have or would have chanqed the jury's

ultimate decision.                  Because we conclude that Officer Allen's                            hearsay

information did not cause prejudice to DEFENDANT, we will deny his claim

for PCRA relief.


4
    As such, it could be argued that VICTIM's statement was admissible as an excited utterance.
5
    Moreover, during cross examination, trial counsel attempted to impeach the veracity of both VICTIM and Ms. Smith.
It could therefore be argued that the testimony presented through Officer Allen elicited prior consonant statements
that would be admissible as an exception to the hearsay rule. See, e.g. .·. ·    · ·   ·



                                                          20
            (7)     Transcript Page 103 - Lines 4~9

      Officer Brant Zimmerman was the first one to arrive at the Liberty Bar

following the stabbing incident. During Officer Zimmerman's testimony, the

prosecutor asked what was said to him upon arrival.               Officer Zimmerman

provided   a three sentence    response    describing in broad strokes what Lori

Smith said to him.

      Prosecutors are permitted to ask police officers about what they were

told and what they confronted when arriving at a crime scene.            The purpose

of this evidence is to explain how the police officer responded.             See, e.g.

Commonwealth v. Dent, 837 A.2d 571 (Pa.Super.              2005).

      In addition, our anal.ysis with respect to the passage on page 103 is

identical to our analysis with respect to the passage recorded on pages 82

and 83.    The brief testimony from Officer Zimmerman              elicited to explain

what happened       upon his arrival at the scene of the crime was not lengthy,

nor was it different from testimony that was provided directly from Lori

Smith herself.      Lori Smith testified and was subject to cross examination,

and all of the information attested to by Officer Zimmerman               was clearly

depicted in the video of the event that the jury observed.                Under these

circumstances,      the information    presented    was not prejudicial      and trial

counsel    cannot     be   deemed     ineffective   for failing    to   challenge   the

introduction of hearsay through Officer Zimmerman.




                                           21
     B.     Failure to Call Witnesses

     DEFENDANT argues that trial counsel was ineffective for failing to

call EILER, Dawn Justiano, Java Pinson and Latoya Williams as witnesses.

Of these individuals, only EILER testified at the PCRA Hearing.              EILER

acknowledged that she is DEFENDANT's long-term girlfriend. EILER stated

that after the stabbing incident, VICTIM threatened DEFENDANT.

     DEFENDANT's trial .counsel testified that she was never given the

names of Java Pinson or Latoya Williams.         While she did hear the name

Dawn Justiano, DEFENDANT was not able to afford trial counsel with either

the address or phone number of Ms. Justiano.            We find trial counsel's

testimony regarding Justiano, Pinson and Williams to be cre.dible. None

were "available" to trial counsel during DEFENDANT's trial.

     With    respect   to   Melissa   Eiler,   trial   counsel   confirmed     that

DEFENDANT had provided her name. Trial counsel met with EILER prior

to trial. She became concerned that EILER would present information that

actually hurt DEFENDANT.       EILER had said to trial counsel that VICTIM

had made romantic entreaties toward her.          Trial counsel was concerned

that this information would have bolstered the Commonwealth's theory that

DEFENDANT attacked VICTIM as a result of jealousy.          Because of this fear,

trial counsel chose not to call EILER.

      Based upon her testimony at the PCRA Hearing, we fail to perceive

how EILER's testimony could possibly have benefited DEFENDANT. EILER

was very clear that the threats made by VICTIM toward DEFENDANT



                                      22
                         .......   __




occurred    after the stabbing                incident and not before.                    Th6y thus were not

relevant to bolster DEFENDANT's                             claim of self-defense.               Moreover,    we

understand    and agree with trial counsel's fear that the Commonwealth                                   could

have elicited information from EILER on cross-examination that would have

been devastating to DEFENDANT.

       We reject all of DEFENDANT's                           PCRA claims relating to his so-called

exculpatory witnesses.                   There is no proof that three of the witnesses were

even available at the time of trial, and there is absolutely nothing that would

indicate that any of the proffered witnesses would                                        have   impacted     the

outcome      of DEFENDANT's                   trial.    We will therefore deny DEFENDANT's

witness-related PCRA claim.


       C.     Failure to Cross Examine Lori Smith

       DEFENDANT            argues               that   his      trial   counsel      should      have    cross-

examined      Lori     Smith              with      respect         to    what       he     characterized      as

"contradictions      with               the   video     evidence."              At    the    PCRA      Hearing,

DEFENDANT could not provide specific details about how Ms. Smith should

have   been    cross    examined                   in   a    different     manner.           Moreover,       when

confronted about what was actually depicted                                on the video,          DEFENDANT

claimed that the video surveillance tape had actually been altered.

       Absolutely      no credible                 information           was    presented        at the   PCRA

Hearing that would corroborate DEFENDANT's                                     selt-servtnq proclamations

about alteration of the surveillance videotape.                                  At trial, we watched         the

same video that was seen by the jury, and we listened to Ms. Smith's



                                                            23
description      of events.         Nothing of substance                was inconsistent.             Moreover,

there is no proof anywhere that either Ms. Smith or the police had the ability

or inclination       to alter the videotape              in an effort to frame DEFENDANT                          for

something        he did not do.                DEFENDANT's              PCRA        claims      regarding        the

videotape       evidence will therefore              be denied.


        D.       Toxicology          Reports

        At the time of the PGRA Hearing, DEFENDANT argued that his

attorney should be deemed ineffective                             for failing to present VI CTI M's

toxicology report that revealed "massive amounts of drugs" in VIGTIM's

system.        After much back and forth, even DEFENDANT's attorney was

forced to concede that no such toxicology reports exist.                                      For this reason

alone, DEFENDANT's PCRA claim regarding toxicology will be denied.6


         E.       Prosecutorial Misconduct

         According to DEFENDANT, VICTIM testified at trial that DEFENDANT

kept his knife on a hook affixed to a wall within his home.                                       DEFENDANT

theorizes that the only way VICTIM could have come into poss ession of this

information was through the prosecutor's office. He accuses the prosecutor

of misconduct for planting· this information inside VIGTIM's head and then

eliciting it at trial.



6
 In addition, trial counsel pointed out that she was able to elicit testimony about VlCTIM's consumption of alcohol
on the night of the incident. Based upon the information that was elicited, trial counsel was able to proffer a credible
closing argument that painted VICTIM as an intoxicated and out-of-control individual. Given the information that
was presented, VICTIM's toxicology report, even if it had existed, would have been little more than cumulative.



                                                          24
        There are multiple      problems     with DEFENDANT's           argument.     First,

there   is no information       that   the   prosecutor     knew the whereabouts          of

DEFENDANT'S         knife within his home.         Second, there is no information      that

the prosecutor      related this information       to VICTIM.     Third, we do not adopt

DEFENDANT's         theory   that a prosecutor        commits     misconduct    every time

he/she tells one witness what another has said.              Finally, and perhaps most

important,     the trial transcript    is devoid of any testimony        indicating   where

DEFENDANT         kept a knife within his home.

        When confronted      on cross examination         with the above, DEFENDANT

insisted     that he remembered        VICTIM describing        the location   of the knife.

He then accused the court reporter of falsifying the transcript by eliminating

that testimonial exchange.

        DEFENDANT's arguments pertaining to prosecutorial misconduct are

ludicrous.     There is no evidence that the prosecutor acted improperly, and

there is no evidence that the court reporter falsified the transcript by

omitting a portion of the testimonial exchange that occurred.                   If anything,
DEFENDANT's prosecutorial misconduct claim illustrates the depth of his

desperation.      We cannot and will not give credence to that desperation.


        F.      Prior Criminal Record
        DEFENDANT acknowledged that he was convicted in North Carolina

for Armed Robbery and Assault With A Deadly Weapon With Intent To Kill.

He also did not dispute a multitude of past misdemeanor convictions.




                                              25
However,     he claims that he did not commit four felony offenses that were

listed on his prior record sheet.             The offenses DEFENDANT                  disputes are:

(1)    12/13/90 - Armed Robbery

(2)    12/20/90 - Attempted Sale of Cocaine

(3)    10/7/91 - Larceny7

(4)    5/3/2000 - Possession With Intent To Deliver A Controlled Substance.

       The Commonwealth              presented       evidence from Tonya Zeigler, who is

employed       by the County          of Lebanon         to ascertain and verify the prior

criminal records        of a defendant.           Ms. Zeigler testified that she obtained

DEFENDANT's           "R.A. P. sheet" by utilizing DEFEN DANT's full name, date of

birth and Social         Security.        In addition,       Ms. Zeigler ran DEFENDANT's

fingerprints on a "ten-printer," which is a device used to scan and compare

fingerprints.      Ms. Zeigler testified that the prior criminal .ecord submitted

to the Court was verified as belonging to DEFENDANT                             because      his name,

date of birth, Social Security and fingerprints were all identical to the ones

maintained      for the individual who had previously committed                         the crimes in

North Carolina.

        DEFENDANT'S            trial counsel acknowledged                 that her client denied

committing some of the North Carolina offenses                          that were on his record.

Trial counsel       investigated the possibility of mistaken                   identity.    When trial

counsel     learned that the prior record had been verified by name, date of



7We fail to perceive why this crime was even mentioned. DEFENDANT was acquitted orthis offense and it was
not considered in calculating DEFENDANT's prior record score.




                                                    26
birth,    Social     Security       number        and      fingerprints,       she     concluded         that

DEFENDANT was simply wrong with respect to his prior record score claim.

We agree with trial counsel's               assessment.

         In addition,      we took some time at the PCRA Hearing                              to question

whether     DEFENDANT's             challenge      to his prior record score even mattered.

According      to Ms. Zeigler and the official Presentence                      lnvestlqatlon       Report,

DEFENDANT's            prior record classified             him as an RFEL - a repeat felony

offender.      With such classification, the 10 to 20 year sentence                           imposed on

the Aggravated          Assault     charge fell within the standard                  sentencing       range.

In comparison,          if one were to eliminate the felony convictions challenged

by DEFENDANT, he would have been classified with a prior record score of

5.       Even with a prior record score of 5, the 10 year minimum sentence

imposed on the Aggravated                     Assault charge would have fallen within

standard sentencing range.

         When we sentenced DE FEN DANT, we believed that 10 to 20 years

was an appropriate sanction given his background and the nature of his

conduct.         The difference           between a prior record score of 5 and a

characterization         of being an RFEL would not have changed our opinion

regarding the appropriateness of DEF ENDANT's sentence.                                 6




8
  In our Sentencing Order, we cited the fact that DEFENDANT had a prior criminal history for Assault Using A
Deadly Weapon. DEFENDANT does not dispute having such a past criminal history. Therefore, the information
set forth in our Sentencing Order is accurate even if one were to adopt DEFENDANT's argument regarding his prior
record score.



                                                      27
      Like DEFENDANT's       other PCRA arguments,       we reject the one he has

proffered   regarding his prior record.   We conclude that DEFENDANT's       prior

record score was calculated      correctly.    Even if it were not, the difference

between the official prior record and DEFENDANT's claimed prior record

would not have caused us to alter our sentence.               For these reasons,

DEFENDANT's PCRA claim regarding his prior record score will be denied.


V.     CONCLUSION

       The key piece of evidence in this case has always been the videotape

that depicts the altercation      between DEFENDANT and VICTIM.               That

videotape showed DEFENDANT repeatedly stabbing VICTIM. While other

evidence was presented to provide context to the video, it was the video

itself that formed the cornerstone of the Commonwealth's              prosecution.

Nothing at trial and nothing during the 2016 PCRA hearing has assailed the

video or what it depicted.     No matter how many straws DEFENDANT now

attempts to grasp, the fact remains that he was caught on tape attacking
and stabbing another man inside the Liberty Bar.              It is DEFENDANT'S

conduct and the videotape that recorded that conduct that lea to the jury's

verdict... not the ineffectiveness of trial counsel.

       We categorically reject all of DEFENDANT's PCRA claims against his

trial counsel. Given the overwhelming evidence, trial counsel accomplished

much to prevent DEFENDANT from being convicted of Attempted Homicide.

We certainly cannot and will not declare trial counsel's efforts on behalf of




                                          28
DEFENDANT to be ineffective.   Accordingly,   DEFENDANT s PCRA Petition

will be denied.




                                    29
