J-S14043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                    Appellee                :
                                            :
              v.                            :
                                            :
KALIF V. GANT,                              :
                                            :
                    Appellant               :           No. 1303 EDA 2014

             Appeal from the PCRA Order entered on April 10, 2014
             in the Court of Common Pleas of Philadelphia County,
                 Criminal Division, No. CP-51-CR-0202541-2006

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED MARCH 16, 2015

        Kalif V. Grant (“Grant”) appeals the Order dismissing his Petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1      Additionally, Grant’s

appellate counsel, Todd Mosser, Esq. (“Attorney Mosser”), has filed a

separate Petition to Withdraw as Counsel.         We grant Attorney Mosser’s

Petition to Withdraw as Counsel, and affirm the Order of the PCRA court.

        In its Opinion, the PCRA court set forth the relevant factual and

procedural history, which we incorporate herein by reference.        See PCRA

Court Opinion, 5/23/14, 1-4.




1
    See 42 Pa.C.S.A. §§ 9541-9546.
J-S14043-15


      As an addendum, on November 19, 2014, Attorney Mosser filed a “no-

merit” letter pursuant to Turner/Finley,2 along with a Petition to Withdraw

as Counsel.

      Initially, we must address Attorney Mosser’s Petition to Withdraw as

Counsel.      Where counsel seeks to withdraw on collateral appeal, the

procedure outlined in Turner/Finley must be followed. In Commonwealth

v. Pitts, 981 A.2d 875 (Pa. 2009), our Supreme Court explained that

independent review by competent counsel is required before withdrawal is

permitted. Id. at 876 n.1. Such review requires proof of the following:

      1. [a] “no-merit” letter by [] counsel detailing the nature and
         extent of his review;

      2. the “no-merit” letter by [] counsel listing each issue the
         petitioner wished to have reviewed;

      3. [C]ounsel’s “explanation,” in the “no-merit” letter, of why the
         petitioner’s issues were [without merit];

      4. The PCRA court conducting its own independent review of the
         record; and

      5. The PCRA court agreeing with counsel that the petition was
         [without merit].

Id. (citation and brackets omitted).

      Further, we have held that the Supreme Court in Pitts did not

expressly overrule the additional requirement imposed by this Court in




2
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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J-S14043-15


Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006), stating

that

       counsel seeking to withdraw [must] contemporaneously forward
       to the petitioner a copy of the application to withdraw that
       includes (i) a copy of both the “no-merit” letter, and (ii) a
       statement advising the PCRA petitioner that, in the event the
       trial court grants the application of counsel to withdraw, the
       petitioner has the right to proceed pro se, or with the assistance
       of privately retained counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).

       Here, Attorney Mosser filed a Turner/Finley no-merit letter and a

Petition to Withdraw as Counsel. In his Petition, Attorney Mosser described

the extent of his review, identified the issues that Grant sought to raise, and

explained why the issues lack merit. In addition, Attorney Mosser provided

Grant with notice of his intention to seek permission to withdraw from

representation, a copy of the no-merit letter, and advised Grant of his rights

in lieu of representation.3   Thus, we conclude that Attorney Mosser has

substantially complied with the requirements necessary to withdraw as

counsel. We now independently review Grant’s claims to ascertain whether

they are without merit.

       On appeal, Grant raises the following questions for our review:

       1. Whether trial counsel was ineffective for failing to convey a
          plea offer to Grant?

3
  Attorney Mosser’s Petition to Withdraw as Counsel, as originally filed, failed
to include any proof that he had provided Grant with copies of the no-merit
letter and Petition to Withdraw. Accordingly, we ordered Attorney Mosser to
provide this Court with such proof, which he did.



                                  -3-
J-S14043-15



     2. Whether trial counsel was ineffective for failing to move to set
        aside the verdict?

     3. Whether trial counsel was ineffective for failing challenge the
        sufficiency of the evidence?

     4. Whether trial counsel was ineffective for failing to challenge
        the weight of the evidence?

Turner/Finley Letter at 10, 12 (unnumbered).4

            This Court’s standard of review regarding an order
     dismissing a petition under the PCRA is whether the
     determination of the PCRA court is supported by the evidence of
     record and is free of legal error. The PCRA court’s findings will
     not be disturbed unless there is no support for the findings in the
     certified record. Moreover, a PCRA court may decline to hold a
     hearing on the petition if the PCRA court determines that
     petitioner’s claim is patently frivolous and is without a trace of
     support in either the record or from other evidence.

Commonwealth v. Ortiz, 17 A.3d 417, 420 (Pa. Super. 2011) (citations

omitted).


4
   In his no-merit letter, Attorney Mosser also addresses several claims
initially raised by Grant in his pro se PCRA Petition and pro se Supplemental
PCRA Petition, which were filed prior to the appointment of PCRA counsel
and the filing of a counseled Amended PCRA Petition. Because these
additional claims were not included in the counseled Amended PCRA Petition
filed by PCRA counsel, or addressed by the Commonwealth in its Motion to
Dismiss Grant’s PCRA Petition, they do not appear to have been considered
by the PCRA court as a basis for its decision to dismiss Grant’s PCRA Petition
without a hearing. See Pa.R.A.P. 302(a) (providing that “[i]ssues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.”); see also Commonwealth v. Roney, 79 A.3d 595, 611 (Pa.
2013) (holding that issues not presented to the PCRA court are waived).
Notwithstanding, in its Pa.R.A.P. 1925(a) Opinion, the PCRA court thoroughly
addressed these additional claims, set forth the relevant law, and
determined that they lack merit. See PCRA Court Opinion, 5/23/14, 13-20.
We agree with the rationale of the PCRA court. Thus, even if these claims
were not waived, we would have concluded that they lack merit.


                                 -4-
J-S14043-15


      In his first issue, Grant contends that trial counsel was ineffective for

failing to convey a plea offer to him. Turner/Finley Letter at 10.

      In its Opinion, the PCRA court addressed Grant’s first claim, set forth

the relevant law, and concluded that it lacks merit.        See PCRA Court

Opinion, 5/23/14, 5-8.    We agree with the sound reasoning of the PCRA

court and affirm on this basis as to this issue. See id.

      In his second claim, Grant claims that trial counsel was ineffective for

failing to move to set aside the verdict. Turner/Finley Letter at 12. In his

third claim, Grant claims that appellate counsel was ineffective for failing to

appeal his judgment of sentence on the basis that the evidence was

insufficient to support his convictions. Id. at 12-14.

      In its Opinion, the PCRA court addressed Grant’s second and third

claims, and concluded that they lack merit.        See PCRA Court Opinion,

5/23/14, 8-11. We agree with the sound reasoning of the PCRA court and

affirm on this basis as to these issues. See id.

      In his final claim, Grant claims that appellate counsel was ineffective

for failing to appeal his judgment of sentence on the basis that the verdict

was against the weight of the evidence. Turner/Finley Letter at 14.

      In its Opinion, the PCRA court addressed Grant’s final claim and

concluded that it lacks merit. See PCRA Court Opinion, 5/23/14, 11-13. We

agree with the sound reasoning of the PCRA court and affirm on this basis as

to this issue. See id.



                                  -5-
J-S14043-15


     Based upon the foregoing, we conclude that Grant’s PCRA Petition is

without merit, and allow Attorney Mosser to withdraw from representation.

     Petition to Withdraw as Counsel granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2015




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                              IN THE COURT OF COMMON PLEAS
                         FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                  CRIMINAL TRIAL DIVISION

     COMMONWEALTH OF PENNSYLVANIA                                   CP-51-CR-0202541-2006


            v.
                                         CP-51-CR-0202541-2006 Comm. v. Gant, Kalif
                                                         Opinion



     KALIFGANT
                                             111111111111111 "11111111
                                                                                             FILED
                                                     7154167631                               MAY 23' 2014
                                                                                        .Criminal Ap
                                                    OPINION                           First JUdicial &eta!s Unit
                                                                                                      s rtct of PA
     McDermott, J.                                                                        May 23, 2014

     Procedural History

            On April 2, 2007, after a trial presided over by Honorable Renee Cardwell Hughes, a jury

     found petitioner guilty of Third Degree Murder and related charges. On May 22,2007, the Judge

     Hughes sentenced the defendant to forty to eighty years of imprisonment.

            On June 13,2007, the petitioner filed a Notice of Appeal. On July 3, 2008, petitioner

     filed a pro se Post Conviction Relief Act (PCRA) petition, which was dismissed on November

     10, 2008 as petitioner's direct appeal was still pending.

            On September 21,2009, the Superior Court of Pennsylvania affirmed the petitioner's

     judgment of sentence. The Superior Court rejected petitioner's claims that: 1) the prosecutor

     made improper comments during his closing argument; 2) the trial court erred in instructing the

     jury regarding reasonable doubt; 3) the trial court erred in giving a consciousness of guilt charge,

     and; 4) the trial court abused its discretion in sentencing petitioner. On July 30, 2010, the

     Supreme Court MPennsylvania denied petitioner's Petition for Allowance of Appeal.



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           On April 21, 2011, petitioner filed apro se PCRA petition. On July 29,2011, petitioner

filed a second pro se petition. On August 30, 2012, counsel was appointed to represent petitioner

for purposes of his PCRA. On July 9,2013, private counsel hired by petitioner entered her

appearance to represent the petitioner on his PCRA. On September 13,2013, PCRA counsel

filed an amended PCRA petition styled as a "Supplemental PCRA Petition." On December 3,

2013, the Commonwealth filed aMotion to Dismiss. On February 28,2014 and April 10, 2014,

this Court held evidentiary hearings. On April, 10,2014, this Court dismissed petitioner's PCRA.

On April 25, 2014, petitioner filed a Notice of Appeal.



           The Superior Court of Pennsylvania recounted the facts ofthis case as follows:

                       On April 29, 2005, Kalif Gant[, petitioner,] and several co-
                   conspirators planed to rob Christopher Jones [] during the course
                   of a drug deal. (N.T. 3/30107, pgs. 42-43). The drug transaction
                   was to take place in Progress Plaza, located near the intersection of
                   Oxford and Broad Streets in the City and County of Philadelphia. 1
                   Id. The [petitioner] arrived at the Plaza with Melvin Birdsong
                   ("Birdsong") in a blue Oldsmobile, where they met Jereese Brown
                   ("Brown") and Bilal Reed ("Reed), who arrived in a silver Pontiac.
                   Id. [Petitioner,] Reed, and Brown exited their cars and hid in an
                   alleyway alongside the vacant supermarket. Id. Birdsong got into
                   the silver Pontiac and drove to the other end of the parking lot. Id.
                   J ones entered the backseat. Id. Appellant and Reed walked out of
                   the alley with guns and approached the rear window of the car. Id
                   at 46.
                       Moments later, multiple gunshots were fired from the direction
                   of the Plaza. (N.T. 3/29107, pg. 142; 153; 3/30107. pg. 18). The
                   [petitioner] ran up Park Avenue towards 13th Street and collapsed
                   halfway up the street. (N.T. 3/29107, pg. 143-145; 3/30107, pgs. 18-
                   24). A second male came from the direction of the Plaza, knelt
                   down and removed something from [petitioner's] face, and
                   continued running. (N.T. 3/29107, pgs. 145-146; 155). As police
                   converged on the scene, Birdsong and Brown drove the blue
                   Oldsmobile around the comer and attempted to lift [petitioner] into
                   the car. (N.T. 3/29107, pgs. 147-150).


1   The footnotes from the Superior Court opinion have been omitted.

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    A police officer found Birdsong and Brown struggling to assist
[petitioner]. (N.T. 3/29/07, pg. 180). The officer told the two men
to lay [petitioner] on the backseat of her patrol car so he could be
transported quickly to the hospital. (N.T. 3/29/07, pgs. 180-181).
The two men were nervous and apprehensive, but did assist the
officer. Id. After [petitioner] was secured in the car, the officer
instructed Birdsong and Brown to follow her to the hospital. (N.T.
3/29/07, pg. 184). The two men followed the officer to the end of
the block, turned the corner and sped away. (N.T. 3/29/07, pgs.
185; 202).
     The police converged on Progress Plaza where they found
Christopher Jones bleeding and unresponsive. (N.T. 3/29/07, pg.
184). Before police arrived on the scene, a bystander approached
Jones to ask who shot him. (N.T. 3/30107, pgs. 9-10). Jones
responded that his name was "Chris" and that his chest hurt. Id
Jones was alive and breathing for approximately five (5) to ten
(10) minutes after the shooting. (N.T. 3/29/07, pg. 233). He was
taken by ambulance, and was pronounced dead at Hahneman
Hospital moments after his arrival. (N.T. 3/29/07, pgs. 237).
Christopher Jones sustained two (2) gunshot wounds to the back.
(N.T. 3/29/07, pgs. 231; 237). Police recovered a Tech-22 and .32
caliber revolver with three (3) spent (fired) rounds; both of which
were found just outside the Plaza. (N.T. 3/29/07, pgs. 64-65; 70;
76; 77). A pair of black cloth gloves, and three (3) bandana's - one
of which had holes cut into it - were also found at the Plaza. Id.
Droplets of blood were found approximately twenty (20) feet from
where the weapons were recovered. (N.T. 3/29/07, pgs. 65; 69;
70). Broken car glass was also recovered on the ground [where]
Jones' body was found. Id
     The silver Pontiac Bonneville was found near 10th Street. Reed
and Brown's fingerprints were lifted from the interior and exterior
of the car. (N.T. 3/29/07, pgs. 106; 110; 134; 3/30107, pg. 51). The
rear window of the Pontiac was shot out and there was glass
fragments on the back seat, and a red stain on the bottom of the
rear passenger door. (N.T. 3/29/07, pg. 107). The car was located
approximately forty-five (45) feet from where a .32 revolver was
 discarded in an alleyway. (N.T. 3/29/07, pg. 127). After securing a
search warrant, police also seized $214 in cash, and 132 packets of
crack cocaine from the trunk. (N. T. 3/30107, pg. 50).
     The [petitioner] sustained a gunshot wound to his neck. (N.T.
3/29/07, pgs. 166-169). At the hospital, police recovered a bullet
removed from [petitioner] following surgery; [petitioner's]
sweatshirt, which had a bullet hole in the left collar, and a folded
 up bandana that had two (2) bullet holes in it. Id The location of
the bullet holes in the bandana was consistent with the bandana



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                having been folded in a triangular shape and worn as a mask when
                [petitioner] was shot. (N.T. 3/30107, pgs. 118-130).
                    On June 20,2005, [petitioner] gave a statement to police at his
                home concerning the shooting death of Christopher Jones. (N.T.
                3/30107, pgs. 31-33). [Petitioner] admitted that he was at Progress
                Plaza on the evening of April 29, 2005 with Brown[,] Reed,
                Birdsong, and Jones. (N.T. 3/30107, pgs. 42-47). He also admitted
                to "hiding" in an alleyway with Reed next to the vacant
                supermarket as Jones approached the Plaza. (N.T. 3/30107, pgs. 46-
                47).
                    After further investigation, police issued an arrest warrant for
                [petitioner]. (N.T. 3/30107, pg. 55). [Petitioner] eluded police for
                approximately six (6) weeks. (N.T. 3/30107, pgs. 66-71; 74-75). At
                the time of his apprehension, [petitioner] gave the police a false
                name.ld. Commonwealth v. Gant, 1612 EDA 2007 (Pa. Super.
                September 21, 2009)(Non-precedential decision).


        In the amended petition PCRA counsel raises the following issues:

        1. Trial counsel was ineffective for failing to convey the offer to petitioner.

        2. Trial counsel was ineffective for failing to move to set aside the verdict.

        3. Appellate counsel was ineffective for failing to allege a sufficiency of the evidence
        claim as to both charges.

        4. Appellate counsel was ineffective for failing to argue that the verdict was against the
        weight of the evidence.

        As a preliminary matter, this Court must address the timeliness of the petition.

A PCRA petition must be filed within one year of the date that the judgment becomes final. 42

Pa.C.S. § 9545(b)(l). A judgment becomes final for purposes of the PCRA "at the conclusion of

direct review, including discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S.

§ 9545(b)(3). On July 30,2010, the Supreme Court of Pennsylvania denied petitioner's Petition

for Allowance of Appeal and on April 21, 2011, petitioner filed his pro se petition. Thus, the

petition is timely.



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        To warrant relief based on a claim of ineffective assistance of counsel, a defendant must

show that such ineffectiveness "in the circumstances ofthe particular case, so undermined the

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

place." Commonwealth v. Jones, 912 A.2d 268,278 (Pa. 2006); 42 Pa.C.S. § 9543(a)(2)(ii).

Counsel is presumed to be effective. Commonwealth v. Bennett, 57 A.3d 1185, 1195-96 (Pa.

20 12)(citation omitted). To overcome the presumption, the petitioner has to satisfy the

performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The

Supreme Court of Pennsylvania has applied the Strickland test by looking to three elements,

whether: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for

counsel's actions or failure to act; and (3) the petitioner has shown that he suffered prejudice as a

result of counsel's lapse, i. e., that there is a reasonable probability that the result of the

proceeding would have been different. Bennett, 57 A.3d at 1195-96 (citing Commonwealth v.

Pierce, 527 A.2d 973,975 (Pa. 1987)). If a claim fails under any necessary element of the

Strickland test, the court may proceed to that element first. Bennett, 57 A.3d at 1195-96.

        An adequate and properly layered claim must contain more than boilerplate assertions of

prior counsel's ineffectiveness, because "[s]uch an undeveloped argument, which fails to

meaningfully discuss and apply the standard governing the review of ineffectiveness claims,

simply does not satisfy Appellant's burden of establishing that he is entitled to any relief."

Commonwealth v. Rivera, 816 A.2d 282, 287 (Pa. Super. 2003)(citations omitted).

        Petitioner alleges that trial counsel failed to convey a plea offer to the petitioner. An

attorney has a duty to communicate a plea offer to his client and to explain the advantages and

disadvantages of the offer. Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa. Super. 2001).

As a general rule, defense counsel has the duty to communicate formal offers from the



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prosecution to accept a plea on terms and conditions that may be favorable to the accused.

Missouri v. Frye, 132 S. Ct. 1399, 1408, 182 L. Ed. 2d 379 (20 12)(holding counsel rendered

ineffective assistance for failing to convey a plea offer to appellant before it expired). Failure to

do so may be considered ineffectiveness of counsel if the defendant is sentenced to a longer

prison term than the term he would have accepted under the plea bargain. Id (citing

Commonwealth v. Korb, 617 A.2d 715, 716 (Pa. Super. 1992)); see Commonwealth v. Copeland,

554 A.2d 54, 60-61 (Pa. Super. 1988). In order to be entitled to relief, the petitioner has the

burden of proving that: (1) an offer for a plea was made; (2) trial counsel failed to inform him of

such offer; (3) trial counsel had no reasonable basis for failing to inform him of the plea offer;

and (4) he was prejudiced thereby. Commonwealth v. Chazin, 873 A.2d 732, 735 (Pa. Super.

2005)(citing Copeland, 554 A.2d at 60-61)).

       Here, petitioner cannot establish three of the prongs required by Copeland and its

progeny. This Court finds that a plea offer contingent upon cooperation from the petitioner was

made and conveyed to the petitioner by Mr. Joseph Santaguida. Assistant District Attorney John

Doyle credibly testified that he conveyed an interest in having the petitioner cooperate with the

Commonwealth to aid in the prosecution of Reed. N.T. 2128/2014 at 49-51. Because the

petitioner, through his attorney refused to cooperate no specific offer of a number of years was

ever conveyed to the petitioner. Id This Court rejects petitioner's assertion that an offer of five

years was ever made. N.T. 2/2812014 at 27. Mr. Santaguida credibly testified that if an offer of

cooperation had been made he would have conveyed it to his client. N. T. 411 0/20 14 at 17. Mr.

Santaguida's file had an indication that the petitioner refused an offer of cooperation, although

he did not have an independent recollection of such an offer. N.T. 4/1012014 at 7.




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        The fact that an offer of cooperation was conveyed to and subsequently rejected by

petitioner is supported by the record. On two occasions outside the presence of the petitioner,

Judge Hughes, Mr. Santaguida, and ADA Doyle discussed the fact that an offer of cooperation

had been made and rejected? During trial, in the presence of the petitioner Judge Hughes

referenced a plea deal. 3 At the mention of this deal, petitioner did not make any sort of showing

that this was the first time he had heard of the offer; in fact he did not react at all. N.T. 4/2/2007

at 18; N.T. 2/28/2014 at 29.

        The conclusion that an offer of cooperation was made and rejected by the petitioner is

further supported by the letters written to Judge Hughes for petitioner's sentencing. The

petitioner wrote a letter to Judge Hughes wherein the petitioner explained that he did not

cooperate because his family had been threatened. Commonwealth PCRA Exhibit 1. Three of the

petitioner's family members, Dorthea Miller, Amir Miller, and Ayesha Miller, corroborated

petitioner's account in their letters wherein they indicated that they were aware that an offer

involving cooperation had been made to petitioner. All three individuals insisted that the

petitioner did not take the offer of cooperation because he and his family had been threatened.

N.T. 2/2812014 at 18-26. The evidence contained in the trial record in combination with the

testimony from the PCRA hearings require the conclusion that an offer of cooperation was

conveyed by Mr. Santaguida to petitioner and subsequently rejected by petitioner.

        Finally, the petitioner has not met his burden of showing he was prej udiced even if the

offer had not been conveyed. To show prejudice from ineffective assistance of counsel where a

plea offer has lapsed or been rejected because of counsel's deficient performance, defendants


2 The Court: "The question I'm asking you is why this boy is not taking an offer."
Mr. Santaguida: "They didn't make an offer. They only made an offer ifhe cooperated." N. T. 3/28/2007 at 29.
The Court: "[I]t ain't my fault your boy didn't take third." N.T. 4/212007 at 196.
3 The Court: " ... which is why I don't understand why this young man didn't take the Commonwealth's offer, but
that's water under the bridge now." N.T. 4/2/2007 at 18.

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must demonstrate a reasonable probability they would have accepted the earlier plea offer had

they been afforded effective assistance of counsel. Missouri v. Frye, 132 S. Ct. 1399, 1409, 182

L. Ed. 2d 379 (2012). Prior to trial, the petitioner never requested an offer; instead he continued

to assert his innocence even after being convicted. N.T. 2/28/2014 at 39-40. At the evidentiary

hearing on his PCRA, petitioner testified that he would have considered cooperating with the

Commonwealth, but he did not state that he would, in fact, have taken a deal that required

cooperation. N.T. 2/28/2014 at 12-13. Therefore, petitioner has not shown that he was

prejudiced, because there is no evidence he would have agreed to cooperation, followed through

with the cooperation, or admitted his guilt. Accordingly, petitioner has failed to meet his burden

proving trial counsel was ineffective for failing to convey a plea offer.

       Petitioner claims that trial counsel was ineffective for failing to "move to set aside the

verdict given that there was no independent evidence to support said charge" and that appellate

counsel was ineffective for failing to "allege that the evidence was insufficient to support the

convictions on both charges." Petitioner alleges that there was no direct evidence tying him to

the robbery or the homicide.

       Counsel will not be deemed ineffective for failing to raise a meritless claim.

Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006)(citing Commonwealth v. Hall, 701 A.2d

190,203 (Pa. 1997)). Appellate counsel cannot be found to be ineffective for failing to raise

meritless claims. Commonwealth v. Tanner, 600 A.2d 201,206 (Pa. Super. 1991)(citing

Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977)).

       There was sufficient evidence presented at trial to support the petitioner's convictions. In

its 1925(b) Opinion the trial court explained:

                  There was sufficient evidence for the fact finder to convict the
               appellant on the charge of third degree murder. To find a defendant


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                    guilty of third degree murder, the Commonwealth need not show
                    specific intent, but merely that the defendant acted with malice
                    aforethought; wanton and reckless conduct that manifests extreme
                    indifference to the value of human life. Commonwealth v. Santos,
                    876 A.2d 360 (Pa. 2005). Although it may not have been the
                    perpetrator's purposeful intent to kill a particular person, at the
                    very least, the defendant's conduct must be such that one could
                    anticipate death or serious bodily injury would likely result.
                    Further, malice may be inferred from a consideration ofthe facts
                    and circumstances in its totality. Commonwealth v. Commander,
                    260 A.2d 773 (Pa. 1970).
                        Appellant asserts that he was not the shooter, and therefore,
                    cannot be convicted of third degree murder. The appellant was
                    convicted of murder via the principal of accomplice liability.4
                    Under the theory of accomplice liability, the actor and his
                    accomplice share equal responsibility for the commission of a
                    criminal act. Commonwealth v. Bradley, 392 A.2d 688 (Pa. 1978).
                    Two prongs must be satisfied for a defendant to be found guilty as
                    an accomplice - first, there must be evidence that the defendant
                  . intended to aid of promote the underlying offense. Second, there
                    must be evidence that the defendant actively participated in the
                    crime by soliciting, aiding, or agreeing to aid the principle.
                    Commonwealth v. Murphy, 844 A.2d 1228 (Pa. 2004).
                        These two prongs can be established through circumstantial
                    evidence. Id. The appellant and his accomplices consciously acted
                    in concert to ambush Christopher Jones during a drug deal. (N.T.
                    3/30107, pgs. 42-43). The appellant; Reed and Brown hid in a
                    nearby alleyway as Jones was driven to them in the back seat of
                    the silver Pontiac. Id The appellant and his accomplices emerged
                    from the alley wearing masks and brandishing firearms. (N.T.
                    3/30107, pgs. 46). After several shots were fired, Jones was found
                    lying in the Plaza face down with two (2) bullet wounds to the
                    back. (N.T. 3/29/07, pgs. 207-209). Reed and Brown's fingerprints
                    were lifted from the interior and exterior of the silver Pontiac,
                    which was found approximately three (3) blocks from Progress
                    Plaza. (N.T. 3/29/07, pgs. 104; 112). The rear window of the
                    vehicle was shot out, with glass fragments found on the back seat
                    and a red stain on the bottom of the rear door. (N.T. 3/29/07, pg.
                    107). In addition, the appellant admitted to police that he was in
                    Progress Plaza the night Jones was killed for the purpose of
                    robbing Jones. He waited in an alley with his accomplices to
                    commit the crime. (N.T. 3/30107, pgs. 42-43). The Commonwealth
                    is not required to prove that it was the appellant who fired the gun
                    that killed the victim. The principle and his accomplice share equal
                    responsibility for the commission of a criminal act. See, Murphy,

4   The footnotes from the trial court opinion have been omitted.

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     supra. Appellant was a full and active participant in the killing of
     Christopher Jones and thus shares the liability for his death.
         Third degree murder occurs when a person commits a killing
     which is neither intentional nor committed during the perpetration
     of a felony, but contains the requisite malice; malice exists where
     there is a wickedness of disposition, hardness of heart, cruelty,
     recklessness of consequences, and a mind regardless of social duty,
     although a particular person may not be intended to be injured.
     Commonwealth v. Tielsch, 934 A.2d 81 (Pa. Super. 2007). The
     essential element of third degree murder is malice. See, Santos,
     supra. The use of a deadly weapon on a vital part of the body is
     sufficient to support a finding of malice. See, Commonwealth v.
     Murphy, 739 A.2d 141 (Pa. 1999). Jones was shot in the back with
     the bullets striking vital organs. (N.T. 3/29107, pgs. 233). Malice is
     thus established.
         The appellant evidence the requisite malice necessary for third
     degree murder when he intentionally participated in an ambush of
     Jones brandishing a loaded firearm. Third degree murder requires
     no specific intent to kill. Commonwealth v. DiStefano, 787 A.2d
     574 (Pa. Super. 2001). Appellant's conduct was such that one
     could anticipate that death or serious bodily injury would likely
     result after the appellant and his accomplices emerged from the
     alleyway with firearms and shot at Jones. The elements ofthird
     degree murder are satisfied.
         b.) Conspiracy
         There was sufficient evidence for the fact finder to convict the
     appellant for the crime of conspiracy. In order sustain a conviction
     for criminal conspiracy, "the Commonwealth must establish that
     the defendant (1) entered into an agreement to commit or aid in an
     unlawful act with another person(s), (2) with a shard criminal
     intent and, an overt act was done in furtherance of the conspiracy."
     Commonwealth v. Johnson, 719 A2.d 778 (Pa. Super. 1998), citing
     Commonwealth v. Rios, 684 A.2d 1025, 1030 (Pa. 1996), cert
     denied, 520 U.S. 1231 (1997). Therefore, a conviction for
     conspiracy "requires proof of the existence of a shared criminal
     intent." Johnson, supra, citing Commonwealth v. Sattazahan, 631
     A.2d 597,602 (Pa. Super. 1993)[appeal denied, 652 A.2d 293
     (1994)]. A conspiracy can be "extracted from the circumstances
     that attend its activities."Johnson, supra, citing Commonwealth v.
     Kennedy, 453 A.2d 927, 929 (Pa. 1982). As a result, the "conduct
     of the parties and the circumstances surrounding their conduct may
     create a 'web of evidence' linking the accused to the alleged
     conspiracy beyond a reasonable doubt." Commonwealth v.
     McKreever, 689 A.2d 272,274 (Pa. Super. 1997).
         The appellant admitted his involvement in the conspiracy to
     rob Christopher Jones at gunpoint. (N.T. 3/30107, pgs. 42-47). The


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                     physical evidence corroborated the conspiracy. No error exists on
                     this record.
                         c.) Robbery
                         The evidence was sufficient to sustain a conviction for robbery.
                     A robbery is committed, if, in the course of committing a theft, one
                     "threatens another with or intentionally puts him in fear of
                     immediate serious bodily injury." Commonwealth v. Natividad,
                     773 A.2d 167 (Pa. 2001); see also, 18 Pa.C.S.A § 3701. A
                     conviction for robbery does not required proof of a completed
                     theft, it requires only that the requisite force was used "in the
                     course of committing a theft," which is statutorily defied as "an
                     attempt to commit theft or in flight after the attempt or
                     commission." 18 Pa.C.S.A § 3701 (a)(2). The evidence established
                     that after Jones arrived a Progress Plaza to conduct a drug deal, the
                     appellant and his accomplices emerged from hiding the approached
                     Jones wearing masks and bearing firearms. (N.T. 3/30107, pgs. 42-
                     46). The Commonwealth was not required to establish that a
                     completed theft took place that evening, rather, the evidence was
                     sufficient to establish that force was used to attempt to perpetuate a
                     theft. There was sufficient evidence to sustain the conviction for
                     robbery.
                         The verdict was grounded on the total record which is more
                     than sufficient to establish all the necessary elements of the
                     aforementioned crimes. The sufficiency off the evidence
                     supported, rather than contradicted the verdicts rendered. The
                     conclusion reaches was well within the reasonable bounds of the
                     jury's discretion.

             This Court finds the trial court's reasoning sound. The evidence is sufficient to support

      the petitioner's convictions. Accordingly, neither trial counsel nor appellate counsel was

      ineffective for failing to challenge the sufficiency of the evidence.

             Petitioner alleges that appellate counsel was ineffective for failing to "argue that the

      weight of the evidence failed to support a conviction." Petitioner argues that the petitioner was

      never observed to be in possession of a firearm nor was he observed in the same area where the

      homicide occurred. Weight of the evidence and sufficiency of the evidence are discrete inquiries.

      An argument that the verdict is contrary to the weight ofthe evidence concedes that there is

      sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the



                                                                                                          11
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..   ~




         weight of the evidence. Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002). An

         allegation that the verdict is against the weight of the evidence is addressed to the sound

         discretion of the trial court. Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super.

         2005)(citing Commonwealth v. Sullivan, 820 A.2d 795, 805-806 (Pa. Super. 2003);

         Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000). "The factfinder is free to believe

         all, part, or none of the evidence and to detennine the credibility of the witnesses."

         Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008).

                The Superior Court has explained that the test is whether the evidence is "so tenuous,

         vague and uncertain that the verdict shocks the conscience of the court." Commonwealth v.

         Sullivan, 820 A.2d 795,806 (Pa. Super. 2003). For one to prevail on a challenge of the weight of

         the evidence, the jury's verdict must be so contrary to the evidence as to shock one's sense of

         justice. Jd(citing Commonwealth v. Goodwine, 692 A.2d 233,236 (Pa. Super. 1997)).

                Petitioner's claim must fail as the evidence presented at trial was overwhelming as to his

         guilt. The petitioner was shot and found at the scene of the murder by Police Sergeant Saundra

         Russell. Petitioner's co-conspirators fled the scene ofthe murder upon the arrival of Sergeant

         Russell, demonstrating their consciousness of guilt. N.T. 3/29/2007 at 180-185, 202.

                The petitioner admitted to participating in a conspiracy to rob Jones. N.T. 3/30/2007 at

         32-49. In his statement to police, the petitioner stated that he went to the scene with Birdsong

         and that he hid in an alley with Reed, whom he knew had a firearm. Jd at 46. The petitioner

         admitted that his role in the robbery was to open the back car door and take whatever he found

         there during the drug sale. The petitioner explained that he was shot by the backseat passenger

         during the robbery. After the murder, the petitioner demonstrated a consciousness of guilt when




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'.'


      he evaded arrest for five weeks and when he was found he falsely identified himself at "Kevin

      Smith." Id. at 65-75.

              The physical evidence supports the contention that the victim was killed in a robbery

      committed by three or more persons. Officers recovered a Tech .22 caliber semi-automatic

      weapon, a loaded Tech .32 caliber weapon that had been fired three times, three face masks, a

      blue and white bandana, a black bandana, and gloves. N.T. 3/2912007 at 64-77, 127. Officers

      also found a Pontiac Bonneville registered to Brown, whose rear passenger window had been

      shattered by gunshots and contained $214 U. S. Currency and 132 packets of crack cocaine. N. T.

      3/29/2007 at 107; N.T. 3/30/2007 at 50. The bandana the petitioner was wearing upon arriving at

      the hospital had two bullet holes that were consistent with having been folded into a triangular

      shape and worn as a mask when he was shot. N.T. 3/30/2007 at 118-130. This Court's

      conscience is not shocked where the evidence presented was overwhelmingly in favor of

      conviction.

               In his pro se petition petitioner raises the following issues which were not addressed by

      PCRA counsel: 5

               1. "Was trial counsel ineffective for failing to object to the hearsay testimony of the
               coroner who did not perform the autopsy on the victim and only read from the report,
               thus depriving petitioner ofthe right to confront his accuser, in violation of both the
               Pennsylvania Constitution, Article 1, Section 9, an d, United States Constitution,
               Amendment 5, as they pertain to 'Due Process. ",

               2. Was trial counsel ineffective for failing to bring forth an expert witness to impeach the
               commonwealth's expert witness, Mr. Emira, a forensic expert who gave testimony as to
               his theory that petitioner was wearing a bandana over his face at the time that he was
               shot; where said testimony was not based on scientific fact. Said ineffectiveness violates
               both the Pennsylvania Constitution, Article 1, Section 9, and, United States Constitution,
               Amendment 5, as they pertain to Due Process.


      5 PCRA counsel failed to address any of the claims raised by petitioner in his pro se petition other than the allegation
      that the plea offer was never conveyed as discussed supra.

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                                                                                     Circulated 02/17/2015 04:01 PM




        3. Did trial counsel render ineffective assistance when he failed to object to the surprise
        evidence introduced during trial of a bandana allegedly worn by petitioner. The
        introduction of said evidence constitutes a violation of the Pennsylvania and United
        States Constitutions as they pertain to due process and in accords with Brady v.
        Maryland, 83 S.Ct. 1994 (1963).

        4. Did trial counsel render ineffective assistance of counsel when he failed to object when
        the prosecution submitted facts to the jury during closing augments that were not in
        evidence during trial; and direct appeal counsel was ineffective for failing to rai~e this
        claim on direct appeal.

       5. Did trial counsel render ineffective assistance of counsel when he failed to inform
       petitioner of a plea agreement offered by the prosecution prior to petitioner electing to go
       to trial. And direct appeal counsel was ineffective for failing to raise this claim on direct
       appeal.

        6. Did the Commonwealth throughout trial, and during closing arguments, introduce facts
        not in evidence and therefore counsel was ineffective for failing to inform the jury of the
        fact that none of these alleged facts were supported by any evidence presented at trial.

        7. Was trial counsel ineffective for failing to obtain petitioner's medical record in order to
        impeach the Commonwealth's witness who testified that at the time he took petitioner's
        statement the petitioner was in perfect heath, alert, and coherent.

        8. Was trial counsel ineffective for failing to argue the admission of the bandana
        allegedly worn by the petitioner where the chain of custody was fatally compromised.
        And, was direct appeal counsel ineffective for failing to raise this claim on direct appeal.

        After independent review, this Court finds petitioner's pro se claims to be without merit.

In his first allegation of error, petitioner claims that trial counsel was ineffective for failing to

object to the hearsay testimony of the coroner who did not perform the autopsy on the victim as

it violated his right to confrontation. Petitioner also asserts that appellate counsel was ineffective

for failing to raise this issue on appeal.

        A medical expert who did not perform the autopsy may testify as to cause of death as

long as the testifying expert is qualified and sufficiently informed. Commonwealth v. Ali, 10

A.3d 282,304-307 (Pa. 201O)(citing Commonwealth v. Mitchell, 570 A.2d 532 (Pa. Super.

1990); Commonwealth v. Smith, 391 A.2d 1009 (Pa. 1978)). In Commonwealth v. Ali, the

                                                                                                        14
                                                                                   Circulated 02/17/2015 04:01 PM




Supreme Court of Pennsylvania rejected appellant's claim that trial counsel was ineffective for

failing to adequately challenge the Commonwealth's failure to produce at trial the medical

examiner that performed the autopsy on the victim and drafted the autopsy report. The Court

reasoned that Dr. Ian Hood was qualified to render an opinion on cause of death as well as

viewed the victim's body personally and consulted with the medical examiner that performed the

autopsy both before and after the autopsy itself Id

        Here, although Dr. Feigin performed the autopsy, Dr. Ian Hood was present when the

autopsy was conducted. N.T. 3/29/2007 at 228. At the time of trial, Dr. Feigin had left the

medical examiner's office and had taken ajob in New Jersey. Id at 227-228. In addition to being

present, Dr. Hood reviewed the report and factual findings of Dr. Feigin and independently

arrived at his own determination of the cause of death. Id at 228-229. This Court finds that Dr.

Hood was qualified to testify as to his expert opinion. Petitioner failed to demonstrate how Dr.

Feigin's testimony would have differed from that of Dr. Hood. Trial counsel was not ineffective

for failing to object to Dr. Hood's testimony. Likewise, appellate counsel was not ineffective for

failing to raise the issue on direct appeal.

        Petitioner argues that trial counsel was "ineffective for failing to bring forth an expert

witness to impeach the Commonwealth's expert witness, Mr. Emira, a forensic expert who gave

testimony as to his theory that petitioner was wearing a bandana over his face at the time that he

was shot; where said testimony was not based on scientific fact."

        Where a claim is made of counsel's ineffectiveness for failing to call witnesses, it is the

appellant's burden to show that the witness existed and was available; counsel was aware of, or

had a duty to know of the witness; the witness was willing and able to appear; and the proposed

testimony was necessary in order to avoid prejudice to the appellant. Commonwealth v. Chmiel,



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                                                                      (


30 A.3d 1111, 1143 (Pa. 2011)(quoting Commonwealth v. Wayne, 720 A.2d 456,470 (Pa.

1998)). The mere failure to obtain an expert rebuttal witness is not ineffectiveness. Appellant

must demonstrate that an expert witness was available who would have offered testimony

designed to advance appellant's cause. Chmiel, 30 A.3d at 1143 (citation omitted). Trial counsel

need not introduce expert testimony on his client's behalf if he is able effectively to cross-

examine prosecution witnesses and elicit helpful testimony. Additionally, trial counsel will not

be deemed ineffective for failing to call a medical, forensic, or scientific expert merely to

critically evaluate expert testimony that was presented by the prosecution. Chmiel, 30 A.3d at

1143 (citations omitted).

       A PCRA petition must include facts supporting petition and the place in the record where

they appear; to extent they do not appear in record, petition must include affidavits, documents,

and other evidence showing such facts. Pa.R.Crim.P. 902(A)12 and (D). Petitioner has not

provided this Court with any evidence that an expert witness existed at the time of trial who

would have contradicted Gamal Emira's testimony. Mr. Santaguida effectively cross-examined

Emira on his conclusions. N. T. 3/30/2007 at 131-132. This claim is meritIess.

       Petitioner next claims that trial counsel was ineffective for failing to "object to the

surprise evidence introduced during trial of a bandana allegedly worn by petitioner." The

bandana was taken from the petitioner's person upon admission to the hospital. The petitioner

was fully aware of what he was wearing the night of the murder and its potential use in his trial.

Petitioner has not asserted that trial counsel requested the bandana and it was not disclosed by

the Commonwealth. Accordingly, there was no violation of Pennsylvania Rule of Criminal

Procedure 573. Petitioner has not alleged that the bandana was exculpatory, in fact the bandana

was inculpatory; thus, there is no Brady violation. This claim is meritIess.



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                            (   .


       Petitioner also claims that trial counsel was "ineffective for failing to argue the admission

of the bandana allegedly worn by the petitioner where the chain of custody was fatally

compromised" and appellate counsel was ineffective for failing to raise this claim on direct

appeal. Petitioner alleges that the Commonwealth did not establish the chain of custody for the

bandana because the items Detective Carroll testified to recovering from the hospital were

inconsistent with the items listed in a document entitled "Patient's Possessions at the Time of

Admission or at Time of Transfer."

       Pennsylvania Rule of Evidence 901 provides "[t]o satisfy the requirement of

authenticating or identifying an item of evidence, the proponent must produce evidence

sufficient to support a finding that the item is what the proponent claims it is." Pa.R.E. 901 (a).

This requirement is satisfied by testimony by a witness with knowledge that an item is what it is

claimed to be or by distinctive characteristics of the item. Pa.R.E. 901(b). Detective Fran Carroll

testified that on April 30th, 2005, he recovered clothing, including a bandana, collected by

Temple University Hospital from the petitioner and placed the clothing on Property Receipt

2560697. N. T. 3/29/2007 at 167-169. At trial, Detective Carroll identified the bandana as the one

he collected from the hospital. The chain of custody for this evidence was established. Trial

counsel was not ineffective for refraining from objecting to this evidence. Appellate counsel was

likewise not ineffective for failing to raise this claim on direct appeal.

       Petitioner next claims trial counsel rendered ineffective assistance when he failed to

object when the prosecution submitted facts to the jury during closing augments that were not in

evidence during trial; and appellate counsel was ineffective for failing to raise this claim on

direct appeal. Petitioner takes issue with the following statements by the prosecutor:

               The defendant goes on and says, and Mel wanted me to open the
               back door and take whatever was there from them. Well, he was


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               obviously going to take something or he wouldn't need the masks
               and the guns, neither would the others. N.T. 4/2/2007 at 84.

               He goes to the Temple area with the three other men in two cars.
               He knows Bilal has a gun. He almost certainly has the Tech
               himself. N.T. 4/2/2007 at 89.

       It is well-established that a prosecutor is free to present his argument with logical force

and vigor so long as there is a reasonable basis in the record for the prosecutor's

remarks. Commonwealth v. Hutchinson, 25 A.3d 277,306 (Pa. 2011). A prosecutor has

reasonable latitude during his closing argument to advocate his case, respond to arguments of

opposing counsel, and fairly present the Commonwealth's version of the evidence to the jury.

Commonwealth v. Cox, 983 A.2d 666, 687 (Pa. 2009)(citing Commonwealth v. Abu-Jamal, 720

A.2d 79, 110 (Pa. 1998)).

       Reversible error arises from a prosecutor's comments only where their unavoidable effect

is to prejudice the jurors, forming in their minds a fixed bias and hostility toward the defendant

such that they could not weigh the evidence objectively and render a fair verdict. Commonwealth

v. Tedford, 960 A.2d 1,33 (Pa. 2008). The prejudicial effect of the prosecutor's remarks must be

evaluated in the context in which they occurred. Commonwealth v. Gooding, 649 A.2d 722, 727

(Pa. Super. 1994)(citing Commonwealth v. D 'Amato, 526 A.2d 300, 309 (1987)).

       Here, the prosecutor was within the bounds of permissible argument. Two firearms, three

face masks, a blue and white bandana, a black bandana, and gloves were recovered from the

scene of the murder. N.T. 3/29/2007 at 64-77, 127. It was a reasonable inference from the

evidence that the petitioner was in possession of one of the firearms recovered. It is also a

reasonable inference that the masks and firearms were used for the purpose of committing a

robbery. These remarks represent fair comments on the evidence and were not objectionable.

Accordingly, neither trial nor appellate counsel were ineffective for failing to challenge them.


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       Petitioner claims "the Commonwealth throughout trial, and during closing arguments,

introduced facts not in evidence and therefore counsel was ineffective for failing to inform the

jury of the fact that none of these alleged facts were supported by any evidence presented at

trial." Petitioner contends that it was error for the prosecutor to argue that Birdsong, Brown, and

Reed were the petitioner's co-defendants as there was no evidence presented at trial they

committed any criminal acts.

       The petitioner is mistaken in his characterization of the evidence. In his own statement to

police, petitioner explained that Birdsong, Brown, Reed, and himself were all involved in a

conspiracy to commit a robbery. N.T. 3/29/2007 at 41-47. Officers recovered a Tech .22 caliber

semi-automatic weapon, a loaded Tech .32 caliber weapon that had been fired three times, three

face masks, a blue and white bandana, a black bandana, and gloves. N.T. 3/2912007 at 64-77,

127. Officers also found a Pontiac Bonneville registered to Brown, whose rear passenger

window had been shattered by gunshots and contained $214 U.S. Currency and 132 packets of

crack cocaine. N.T. 3129/2007 at 107; N.T. 3/30/2007 at 50. It was proper for the prosecutor to

argue that Birdsong, Brown, and Reed were uncharged co-conspirators of the petitioner and

engaged in the criminal acts that resulted in the murder of Jones. The claim is meritIess.

       Petitioner claims trial counsel was "ineffective for failing to obtain petitioner's medical

record in order to impeach the Commonwealth's witness who testified that at the time he took

petitioner's statement the petitioner was in perfect heath, alert, and coherent." Petitioner also

claims appellate counsel was ineffective for failing to raise the issue on direct appeal.

       As discussed supra, a PCRA petition must include facts supporting petition. Pa.R.Crim.P.

902(A)12 and (D). Petitioner does not provide the medical records he asserts trial counsel failed

to obtain. Petitioner fails to explain how these records would have impeached Detective James



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                                                                                                         Circulated 02/17/2015 04:01 PM




                    McLaughlin's testimony nor even at the most basic level their admissibility at trial. Without the

                     medical records this Court would need to invent a basis for impeachment and this Court refuses

                     to do so. Trial counsel cross-examined Detective James McLaughlin regarding petitioner's

                     medical condition when he gave his statement. N.T. 3/30/2007 at 56-62. Additionally, trial

                     counsel had petitioner's grandmother testify as to petitioner's poor health at the time he gave the

                     statement. N.T. 4/2/2007 at 31-34. This Court does not see what the medical records could have

                     added to this point that trial counsel did not already elicit. This claim is meritless.

                                  The petition does not meet the requirements of an ineffective assistance of counsel claim

                     and does not merit substantive relief under the Post-Conviction Relief Act. For the foregoing

                     reasons, the decision of this Court should be affirmed.



                                                                                      BY THE COURT,
. - - -..... - - - - -....- -..   --------~--.--_______I_V. ~.---.-.~-.-.--
                                                                                      Barbara A. McDermott, 1.                            .




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