J-S53026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER MOORE                          :
                                               :
                       Appellant               :   No. 2409 EDA 2017

                   Appeal from the PCRA Order June 27, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007232-2010


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 27, 2018

        Christopher Moore appeals, pro se, from the order entered on June 27,

2017, in the Court of Common Pleas of Philadelphia County, denying him relief

on his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. § 9541 et seq. After a thorough review of the submissions by the

parties, relevant law, and the certified record, we vacate Moore’s sentence for

robbery and we affirm in all other regards.

        A jury convicted Moore on October 1, 2012,1 of second degree murder,

robbery and conspiracy.2 Moore took part in the attempted armed robbery of

a reputed drug dealer, and shot and killed her as she sat in a car. Moore was

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   This was Moore’s second trial. His first trial ended with a hung jury.

2   18 Pa.C.S. §§ 2502(d), 3701, and 903, respectively.
J-S53026-18



seen on closed circuit camera approaching the car, and shots being fired. He

was then seen running to another vehicle that was owned by his co-defendant,

Michael Primus. After apprehension, Moore gave a statement to the police

admitting his participation in the crime, claiming he had been promised to be

paid more than $30,000 from the $320,000 they anticipated stealing from the

drug dealer.     Upon conviction, Moore was sentenced to life imprisonment

pursuant to the murder charge and a separate 10-20 year sentence for the

robbery, which was the underlying felony to the second-degree murder

charge.

       On direct appeal, Moore challenged the sufficiency of the evidence and

was afforded no relief.        The Pennsylvania Supreme Court denied Moore’s

petition for allowance of appeal on October 29, 2014. See 325 EAL 2014.

Moore filed this timely PCRA petition on September 24, 2015.

       Moore was appointed counsel, who filed an amended petition. Counsel

subsequently filed a Turner/Finley3 no merit letter with the PCRA court and

petitioned for leave to withdraw as counsel. Proper notice was given to Moore,

and counsel was permitted to withdraw. The PCRA court provided Moore with

proper notice of intent to dismiss the petition without a hearing, pursuant to

Pa.R.Crim.P. 907. Moore filed no repose to either counsel’s notice nor to the


____________________________________________


3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) (setting for the
requirements for counsel to withdraw from representation in a PCRA matter.)



                                           -2-
J-S53026-18



PCRA court’s notice. The petition was denied on June 27, 2017. Moore filed

this timely appeal, pro se, on July 10, 2017.4

        Our standard of review for this matter is both well settled and

straightforward, “This Court’s standard of review regarding an order denying

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.”

Commonwealth v. Kretchmar, 189 A.3d 459, 462 (Pa. Super. 2018)

(citation omitted).

        The PCRA court has provided a thorough assessment of the claims Moore

raised in his amended petition. To the limited extent those claims have been

preserved by argument in his pro se Appellant’s Brief, we rely on the PCRA

court’s opinion at pages 4-12, and direct the parties to attach a copy of that

opinion in the event of further proceedings. We take particular note of the

PCRA court’s determination that Moore’s 10 to 20 year sentence for robbery

must be vacated. It has long been the rule that when a defendant has been

convicted of second-degree murder, a separate sentence cannot be imposed

on the felony underlying the murder conviction.                  Commonwealth v.

Fortune, 451 A.2d 729, 731 (Pa. Super. 1982). Accordingly, we agree with

the PCRA court and vacate the 10-20 year sentence imposed on Moore for

robbery. This action has no practical effect on Moore’s sentence as he is still

serving a mandatory life sentence for second-degree murder.

____________________________________________


4   The PCRA court did not require Moore file a Pa.R.A.P. 1925(b) statement.

                                           -3-
J-S53026-18



        Moore’s pro se brief contains claims that are being raised for the first

time on appeal. As such, these arguments will not be addressed substantively.

See Commonwealth v. Brown, 178 A.3d 1290, 1291 (Pa. Super. 2018)

(Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal); Pa.R.A.P. 302(a) (same).

        Specifically, Moore’s first argument is:

        The trial court erred and caused irreparable harm and prejudice
        to appellant by dismissing appellant’s PCRA petition based upon a
        blatantly biased, unreasonable determination of the actual facts
        of record and, resulting in a fundamental miscarriage of justice,
        thereby, inflicting further injury upon an “actually innocent”
        human being and the reinstatement of appellant’s PCRA rights
        should be ordered, new PCRA counsel should be appointed along
        with the PCRA court’s immediate recusal.

Appellant’s Brief at 29.

        An example of the “blatantly biased, unreasonable determination of the

actual facts” Moore refers to is a reference to trial counsel’s closing argument

when he stated:

        “I asked Mr. Berry:[5] Gee, when you were back at the preliminary
        [N.T., 06/02/2010, P. 94, (lines 7-12)] hearing and you said you
        went out to see what was going on and what Chris [the defendant]
        might have been doing, and you were asked a whole [sic] of
        questions? And this question was asked of you: Do you remember
        what he was doing? And Mr. Berry’s answer was, No. Because
        it’s not a crime for being on the streets. I’m not worried about
        what he is doing. I’m worried about what the girl is doing with
        the big bust. That’s what I’m worried about.” Id., at 167, Lines
        9-22.


____________________________________________


5   This is the same Mr. Berry that Moore claims did not testify at trial.

                                           -4-
J-S53026-18


       In the present case, this Pro se Appellant would like to pause
       momentarily, to point out to this Honorable Court the following
       fact which not only sheds light on trial counsel’s wholesale
       incompetence, but trial counsel’s hint of Alzheimer’s disease.

       FACT: Steven Berry did not say “Bust”. He did say “Butt”.

Appellant’s Brief at 37 (underlining in original). This argument was not raised

before the PCRA court and is waived.

       Second, is a group of claims falling under general argument:

       Trial/direct appellate counsel failed to render constitutionally
       effective assistance, infecting the entire trial so that the resulting
       convictions and direct appeal was violative of Petitioner’s right to
       effective assistance of counsel and due process of law under the
       Federal and State Constitutions, denying Petitioner a fair trial and
       meaningful appellate review for the following reasons:

Id. at 50.

       There are five separate sub-headings that follow. They are:

       a) Trial/Direct appeal counsel failed to impeach lead Detective
       Thomas Gaul’s perjured testimony with several critical pieces of
       evidence including: (1) The Notes of Testimony in regard to
       Appellant’s (1st) first trial revealing such perjury; (2) The
       conflicting testimony of said Detective’s partner John Verrecchio
       elicited at said (1st) first trial; (3) The (.9 mm)[6] nine-millimeter
       Gun Box evidence recovered during the execution of a search-
       warrant of the vehicle/residence of Appellant’s alleged co-
       conspirator Michael Primus.

____________________________________________


6 This is a somewhat common error. There is no such thing as a .9 mm gun
or projectile. It is a 9 mm gun or projectile. A .9 mm projectile would be
slightly smaller than the end of a medium tip ballpoint pen. A 9 mm projectile
is approximately the size of a .38 or .354 caliber projectile. Moore correctly
refers to 9 mm in other parts of his brief. No caliber measurement in
millimeters begins with a decimal point. We mention this, not to criticize
Moore, but only as a general notice to help prevent any such future
inadvertent misrepresentations.


                                           -5-
J-S53026-18


Id.

       None of these issues was raised before the PCRA court and so all are

waived.

       b) Trial counsel failed to render Constitutionally effective
       assistance of counsel, wherein counsel failed to conduct an
       adequate factual and legal pre-trial investigation of defendant’s
       illegally seized cellphone and cellphone records, which should
       have been argued at defendant’s Motion-to-Suppress hearing.

Id. at 57. This issue was not raised in the PCRA court and has been waived.

       c) [T]rial counsel failed to investigate, confer, and or, object to
       Valerie Jordan’s (Juror #7) abrupt dismissal, and said juror’s ex-
       parte communication with Court Officer Menna.

Id. at 62. This issue was not raised in the PCRA court and has been waived.7

       d) Trial counsel failed to “Object” and request a side-bar with the
       Court before stipulating in open-court to Appellant’s alleged
       confession.

Id. at 69.

       The issue of Moore’s confession was raised in Moore’s PCRA petition and

was discussed and properly disposed of in the PCRA court’s 1925(a) opinion,

supra. Moore is not entitled to relief on this issue.

       e) Failure to Investigate, Effectively       Cross-examine,    and
       Consult/Present Defense Expert.

Id. at 72.

       The issue of cross-examining medical examiner Dr. Gary Collins was

raised and addressed by counsel in the Turner/Finley no merit letter. PCRA


____________________________________________


7It appears Juror 7 realized during trial that she knew Moore’s grandmother,
who was seated behind him at trial.

                                           -6-
J-S53026-18



counsel notes that Dr. Collins was cross-examined regarding inconsistencies

between his report, testimony at Moore’s first trial and his second trial. To

the extent that Moore complains the cross-examination itself was not

effective, the jury that convicted Moore, as fact-finder, was entitled to resolve

the inconsistencies as they saw fit and to believe Dr. Collins’ trial testimony.8

See Commonwealth v. Horne, 89 A.3d 277, 286 (Pa. Super. 2014) (jury

resolved the inconsistencies among the testimonies and reached a verdict).

       Moore’s claim of ineffective assistance in failing to consult or present an

expert to challenge Dr. Collins was not raised in the PCRA court and has been

waived.

       Moore’s final claim is another multi-pronged challenge:

       Whether Post Conviction Counsel’s reckless disregard for the truth
       and reckless disregard for the conviction of an “actually innocent”
       petitioner and perfunctory performance summarized in the
       following derelictions of duty and breach of professional
       responsibility to the lawyer/client relation, rendered his
       representation below ineffective assistance of counsel, forfeiting
       and depriving petitioner of his constitutional right to meaningful
       appellate review under the Post Conviction Relief Act.

Appellant’s Brief at 76.

       Moore raises five specific instances of alleged dereliction of duty on the

part of PCRA counsel. Despite receiving proper notice regarding both the filing

of PCRA counsel’s Turner/Finley no merit letter and the PCRA court’s Rule

907 intention of dismissing the claim without a hearing, Moore never raised
____________________________________________


8Dr. Collins originally believed the fatal shot showed evidence of being a close
contact wound, which opinion he later amended to being uncertain of how far
away the gun was when the shot was fired.

                                           -7-
J-S53026-18



any issues regarding PCRA counsel’s stewardship prior to the filing of his pro

se appellant’s brief. Accordingly, we need not address the specifics of Moore’s

argument.   We note again, as we have above, that the claims have been

waived for failure to raise them in the court below.

      Moore has also filed a motion to remand with leave to amend his PCRA

petition. As noted above, Moore was given proper notice of his rights. Those

notices used the standard language provided to all similarly positioned

petitioners. He failed to exercise those rights. This motion is denied.

      Order affirmed. Sentence for robbery is vacated. Parties are directed

to attach a copy of the PCRA court’s November 22, 2017 Opinion in the event

of further proceedings. Motion to remand is denied.

      Judge Platt joins this memorandum.

      President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/18




                                     -8-
0048_Opinion
                                                                                                   Circulated 10/30/2018 04:09 PM


                                                                                                                        FILED
                           IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY      NOV 2 2 2017
                                   FIRST JUDICIAL DISTRICT OF PENNSYLVANIA     Office of Judicial Record
                                      TRIAL DIVISION - CRIMINAL SECTION          Appeals/Post Trial

                COMMONWEALTH OF PENNSYLVANIA                                         CP-51-CR-0007232-2010


                                                 v.


                                   CHRISTOPHER MOORE                                 SUPERIOR COURT


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                                   -CP��l-���7�;;20
                               (
                                                                         OPINION


               Byrd, J.
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                                                                     I
                                                                     )
                                                                                                  November 22, 2017

                       On October 1, 2012, a jury convicted Christopher Moore of second degree murder, robbery

               and criminal conspiracy. On that day, petitioner was sentenced to life imprisonment without the

               possibility of parole. On October 11, 2012, petitioner filed a post-trial motion which was denied

               on February I l, 2013. Petitioner filed a notice of appeal on March 13, 2013. On March 15, 2013,

               petitioner was ordered to file a statement of matters complained of on appeal. Said statement was

               filed on April 5, 2013. On June 6, 2013, this court issued an Opinion and the Superior Court

               affirmed the judgment of sentence. The Supreme Court denied petitioner's allowance of appeal

               petition.

                       On September 24, 2015, petitioner filed a Post Conviction Relief Act (PCRA) petition.

               Petitioner filed a prose amended petition on March 22, 2017. On April 25, 2017, counsel filed a

               "no merit" letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988) and

               Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). This court took the "no merit" letter

               under advisement, and issued a notice of intent to dismiss the PCRA petition pursuant to




                                                                 Commonwealth v. Moore
Pennsylvania Rule of Criminal Procedure 907 on May 26, 2017. On June 27, 2017, this court

formally dismissed petitioner's PCRA Petition. On July 10, petitioner filed a notice of appeal.

                                   STATEMENT OF FACTS
           The following facts are reproduced from this court's June 11, 2013 Opinion:
                On November 21, 2009 at approximately 11 :30p.m., decedent Marlena
       Green and her friend DeAndre Williams headed toward the 200 block of Berkley
       Street in Philadelphia to complete a drug transaction. (N.T., 09/26/12 p. 9). Ms.
       Green, who sold marijuana, was planning to execute a drug sale to a Mr. Jeffery
       Perry at that location. (N.T., 09/26/12 p. 9). Mr. Williams and Ms. Green arrived at
       237 W. Berkley Street, and Mr. Perry entered the back seat of the vehicle. (N.T.,
       09/26/12 p. 9). Shortly thereafter,. defendant Christopher Moore approached the
       passenger side of the vehicle, wearing all black clothing and a brown leather jacket,
       and pointing a .357 revolver at the window. (N.T., 09/25/12 p. 157). Seeing the gun
       pointed at the passenger window of the vehicle, Mr. Williams attempted to flee the
       scene, revving the engine and attempting to pull out from his parking space. (N.T.,
       09/25/12 p. 165). Defendant fired two (2) shots as the vehicle switched into gear
       and started to pull away. (N.T., 09/26/12 p. 59). Ms. Green ducked as the vehicle
       moved, but she was struck by a 'bullet in the back of her head. (N.T., 09/25/12 p.
        167). After the gunshots, Mr. Williams rushed Ms. Green back to her family's home
       on the 500 block of Clapier Street and called police. (N.T., 09/26/12 p. 47). Officers
       arrived on the scene within minutes, and Ms. Green was taken to Temple Hospital
       where she was pronounced dead within minutes of her arrival. (N.T., 09/26/12 p.
       48).
               Officers arriving on the scene attempted to gather evidence about this crime,
       but were unable to locate any ballistics evidence in the area where the shooting took
       place. (N.T., 09/26/12 p. 67). Officers were able to recover a bullet fragment from
       the passenger door of Mr. Williams' Nissan Altima, and a second bullet fragment
       was later recovered from Ms. Green's temple. (N.T., 09/26/12 pp. 65, 106). Officers
       were also able to recover video surveillance footage from the area in the minutes
       surrounding the murder. (N.T., 09/26/12 p. 21). The video captured a male, later
       identified as defendant, walking across the street toward Mr. Williams' vehicle just
       before the vehicle's brake lights were activated, shots were fired, and the vehicle
       sped away. (N.T., 09/26/12 pp. 21-23). After the shooting, the video also showed
       defendant running to a large black SUV, later determined to be a black Chevrolet
       Tahoe belonging to a Michael Primus. (N.T., 09/26/12 p. 23). Based on the license
       plate visible in the video, officers located the vehicle and arrested Michael Primus
       on November 23, 2009. (N.T., 09/26/12 p. 36).
               On November 22, 2009, Steven Berry was arrested while attempting a
       robbery at a McDonald's restaurant in Philadelphia. (N.T., 09/26/12 p. 10). Upon
       his arrest, Mr. Berry informed detectives that he had information about a murder
       committed the night before, and was transported to homicide detectives. (N.T.,
       09/26/12 p. 10). Mr. Berry gave a statement on November 24, 2009 wherein he
       identified Mr. Primus as the person responsible for orchestrating the robbery of Ms.


                                                                                2
                                     Commonwealth v, Moore
 Green, and identified defendant as the shooter. (N.T., 09/26/12 p. 13). He explained
that Ms. Green was Mr. Perry's marijuana connection and that he had set Ms. Green
 up to be robbed and kidnapped. (N.T., 09/26/12 p. 171). He further explained that
 he and three other parties were in Mr. Primus' vehicle when Anthony "Al" Thomas,
called Mr. Primus, who placed the call on speakerphone, and informed the
occupants of the vehicle that the plan "was going down," and instructed them to
drive to Berkley Street. (N.T., 09/26/12 p. 164). The men drove around to the 200
block of Berkley Street and parked at the end of the block thereby forcing the
vehicle Ms. Green would subsequently arrive in to park farther up the street. (N.T.,
09/26/12 p. 164). When Mr. Thomas' vehicle arrived, it parked across the street
from Mr. Primus' truck, and both cars awaited the arrival of Ms. Green. (N.T.,
09/26/12 p. 164). When Ms. Green arrived, accompanied by Mr. Williams as her
driver, Mr. Perry emerged from his home and entered the backseat of the vehicle.
(N.T., 09/26/12 p. 165). Mr. Berry further explained that defendant then pulled out
a gun and proceeded toward the car in which Ms. Green was seated. (N.T., 09/26/12
p. 165). As this happened, Mr. Berry emerged from Mr. Primus' truck to watch
defendant's actions, and observed defendant point the gun at the passenger window
and fire it twice. (N.T., 09/26/12 p. 165). After the shots were fired, both defendant
and Mr. Berry entered Mr. Primus' vehicle, and together the men travelled to a "safe
house" owned by another male in North Philadelphia. (N.T., 09/26/12 p. 165).
         Based on their investigation, an arrest warrant was prepared for defendant
on· November 25, 2009. (N.T., 09/26/12 p. 36). However, officers were unable to
locate defendant, and he was not apprehended until December 10, 2009. (N.T.;
09/26/12 pp. 36-38). On December 1 I, 2009, defendant gave a statement to
detectives wherein he admitted his involvement in the crime. (N.T., 09/26/12 pp.
54-59). Defendant explained that the robbery had been orchestrated by Mr. Perry,
Mr. Thomas, and a man identified only as "O.G." (N.T., 09/26/12 p. 54).
Defendant's role in the robbery was that of gurunan, and his job was to force Ms.
Green into the truck driven by Mr. Primus, where the men would tie her up and
compel her to disclose her source and/or stash house, which the men would then
rob, anticipating proceeds of approximately $320,000. (N.T., 09/26/12 pp. 57-58).
Defendant explained that Mr. Perry was the person responsible for the setup, and
as he entered the backseat of the vehicle, he motioned for defendant to quickly
approach. (N.T., 09/26/12 p. 58). Defendant further explained that he approached
the vehicle carrying a .357 magnum revolver that was given to him by Mr. Primus,
and that upon approaching, he immediately demanded that the vehicle's occupants
stop moving. (N.T., 09/26/12 p. 59). Ms. Green complied with this request, but Mr.
William did not, choosing instead to attempt to get away. (N.T., 09/26/12 pp. 59).
Upon observing Mr. Williams' motions around the gear shift and center console,
defendant grew concerned that Mr. Williams was "reaching" and fired his weapon
twice before the vehicle sped away. (N.T., 09/26/12 pp. 54-59). Defendant went on
to explain that he only learned Ms. Green had been shot and was deceased some
four (4) days later, when informed by Mr. Thomas. (N.T., 09/26/12 p. 60). Finally,
defendant explained that although he anticipated receiving $35,000 for his
participation in the robbery, he never received any proceeds, and returned the gun
to Mr. Primus after firing the fatal shots. (N.T., 09/26/12 p. 60).


                                                                         3
                              Commonwealth v, Moore
           Petitioner raised the following issues in his amended pro se PCRA petition:

    a. Petitioner was denied the effective assistance of counsel, as guaranteed under the
       United States and Pennsylvania Constitution when trial counsel Regina M. Coyne,
       esquire failed to investigate, and or call to the stand Commonwealth's key-witness
       Steven Berry, despite petitioner's demands for her to do so. The Commonwealth,
       for tactical reasons, decided that it would be in their best interest to remove Steven
       Berry from it's case, in fear of receiving a second mistrial, and succeeded. Despite
       Steven Berry being key-witness, Commonwealth dismissed him, certain that Mr.
       Berry's testimony was too damaging, and was not sufficient to permit a rational
       trier of fact to find petitioner guilty beyond a reasonable doubt. And there is a
       reasonable probability that, absent the errors, the factfinder would have had
       reasonable doubt concerning petitioner's guilt.
    b. The sentence imposed on the robbery charge is illegal.
    c. Trial counsel was ineffective for failing to present an "Other Suspect Defense."
    d. A Brady Violation occurred after the Commonwealth decided not to present their
       Key-witness into it's case. In Brady, the United States Supreme Court held that the
       suppression by the prosecution of evidence favorable to an accused upon request
       violates due process where the evidence is material either to guilt or to punishment,
       irrespective of the good faith of the prosecution. Impeachment evidence
       unquestionably falls under Brady's purview and cannot be suppressed by the
       prosecution. Steven Berry was impeachment evidence. Commonwealth withheld
       Steven's Berry's criminal records. See Wilson v. Beard, 589 F.3d 651, 664 (3d Cir.
       2009).
    e. Brady violation. The suppressed Brady-material ... An inconsistent statement by the
       Commonwealth's Medical Examiner Dr. Grey L. Collins, and documents
       indicating that another individual committed the murder. The withholding of these
       pieces of evidence denied petitioner a fair trial in state court.
    f. Abuse of discretion. Trial Judge Sandy L.V. Byrd abused his discretion when he
       refused to entertain petitioner's motion to suppress his coerced confession which
       had been obtained in violation of his Constitutional rights to remain silent.
                                          DISCUSSION

       The Post-Conviction Relief Act (PCRA) affords collateral relief to those individuals

convicted of crimes they did not commit and to those individuals serving illegal sentences. 42 Pa.

C.S. §9542. Claims pursuant to the PCRA are extraordinary assertions that the judicial system

failed; they are not merely direct appeal claims that are made at a later stage of the judicial

proceedings. Commonwealth v. Rivers, 786 A.2d 923 (Pa. 200 I). A petitioner is entitled to file all

PCRA petitions, including second and subsequent petitions within one (I) year from the date his

judgment of sentence becomes final. 42 Pa. C.S. §9545(b)(l ); 42 Pa. C.S. §9545(b)(3). A petitioner

                                                                                4
                                      Commonwealth v. Moore
is eligible for relief under the PCRA if he proves by a preponderance of the evidence that his

conviction or sentence resulted from one or more of the enumerated circumstances found at 42 Pa.

C.S. §9543(a)(2) (setting forth the eligibility requirements of the PCRA). Commonwealth v.

Ligons, 971 A.2d 1125 (Pa. 2009).

        A petitioner may be entitled to relief under the PCRA if he is able to plead and prove that

a conviction or sentence resulted from ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place. 42 Pa. C.S. §9543(a)(2)(ii). It is the

ineffectiveness claim, not the underlying error at trial, which is reviewed. See Commonwealth v.

Clayton, 816 A.2d 217 (Pa. 2002). Under the PCRA, an allegation of ineffective assistance of

counsel amounts to constitutional malpractice where counsel's incompetence deprived a defendant

of his Sixth Amendment right to counsel. See Strickland v. Washington, 466 U.S. 668 (1984);

Commonwealth v. Williams, 782 A.2d 517 (Pa. 2001 ).

       The law presumes that counsel was effective, and the petitioner carries the burden of

proving otherwise. Commonwealth v. Baker, 614 A.2d 663, 673 (Pa. 1992). To prevail on an

ineffective assistance of counsel claim, a three-pronged test must be satisfied: (1) the underlying

claim is of arguable merit; (2) that counsel had no reasonable basis for his or her action or inaction;

and, (3) petitioner must prove that counsel's actions or inaction prejudiced the outcome of the case.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). Furthermore, counsel's choices cannot

be evaluated in hindsight, but rather should be examined in light of the circumstances at that time.

See Commonwealth v. Hardcastle, 701 A.2d 541 (Pa. 1997). Even if there was no reasonable basis

for counsel's course of conduct, a petitioner is not entitled to relief if he fails to demonstrate

prejudice. See Commonwealth v. Douglas, 645 A.2d 226 (Pa. 1994).



                                                                                  5
                                       Commonwealth v. Moore
       Petitioner raises six claims in his amended'pro se PCRA petition: (1) petitioner was denied

the effective assistance of counsel, as guaranteed under the United States and Pennsylvania

Constitutions when trial counsel Regina M. Coyne, failed to investigate and or call the

Commonwealth's key-witness during trial, despite petitioner's demands for her to do so; (2) the

trial court imposed an illegal sentence for robbery; (3) trial counsel was ineffective for failing to

present "Other Suspect Defense"; (4) a Brady violation occurred when the prosecution failed to

present its key-witness; (5) a Brady violation occurred because counsel failed to cross-examine the

medical examiner on an inconsistent statement - and evidence that another individual committed

the murder was suppressed by the Commonwealth; (6) the trial court abused its discretion when it

refused to entertain the petitioner's motion to suppress. These claims are meritless.

       As the court held in Commonwealth v. Fisher, 813 A.2d 761, 767 (Pa. 2002), "[s)peculation

by hindsight that a different strategy might possibly have been successful is not the test which

establishes ineffectiveness of counsel." In Strickland v. Washington, 466 U.S. 668, 689 (1984), the

United States Supreme Court instructed that "(a] fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's

perspective at the time."

       Additionally, "where matters of strategy and tactics are concerned, counsel's assistance is

deemed constitutionally effective if he chose a particular course that had some reasonable basis

designed to effectuate his client's interests." Commonwealth v. Howard, 533 719 A.2d 233, 237

(Pa. 1998). The Court has further declared that "[a] chosen strategy wi II not be found to have

lacked a reasonable basis unless it is proven 'that an alternative not chosen offered a potential for

success substantially greater than the course actually pursued."' Commonwealth v. Williams, 899



                                                                                6
                                      Commonwealth v. Moore
A.2d 1060, 1064 (Pa. 2006) (quoting Howard, 719 A.2d at 237). Indeed, "a claim of

ineffectiveness will not succeed by comparing, in hindsight, the trial strategy trial counsel actually

employed with the alternatives foregone." Commonwealth v. Miller, 605 987 A.2d 638, 653 (Pa.

2009).

         Petitioner first contends that he received ineffective assistance of counsel because trial

counsel failed to investigate and or call Steven Berry to testify despite petitioner's demands to do

so. To establish counsel's ineffectiveness for failure to call a witness, petitioner must show that:

         (1) the witness existed; (2) the witness was available; (3) counsel was informed of
         the existence of the witness or counsel should otherwise have known of the witness;
         (4) the witness was prepared to cooperate and testify for Appellant at trial; and (5)
         the absence of the testimony prejudiced Appellant so as to deny him a fair trial. A
         defendant must establish prejudice by demonstrating that he was denied a fair trial
         because of the absence of the testimony of the proposed witness. Further,
         ineffectiveness for failing to call a witness will not be found where a defendant fails
         to provide affidavits from the alleged witnesses indicating availability and
         willingness to cooperate with the defense.
Commonwealth v. O'Bidos, 849 A.2d 243, 249 (Pa. Super. 2004). appeal denied, 860 A.2d 123

(Pa. 2004) (quoting Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super 2002).

         Petitioner has not properly established this claim. He has failed to attach a certification or

affidavit from Steven Berry to his petition, and he has failed to show how Steven Berry's testimony

would have changed the outcome of the trial. See Commonwealth v. Carter, 661 A.2d 390, 396

(Pa. Super. 1995). Furthermore, in order to demonstrate prejudice as a result of counsel not calling

a witness, a petitioner must show how the uncalled witnesses' testimony would have been

beneficial under the circumstances of the case. Counsel will not be found ineffective for failing to

call a witness unless petitioner can demonstrate that the witness's testimony would have been

helpful to his cause. A failure to call a witness is not per se ineffective assistance of counsel, for

such decisions usually involves matters of trial strategy. Commonwealth v. Sneed, 45 A.3d I 096,

1108-09 (Pa. 2012). Indeed, the trial record indicates that trial counsel consulted with petitioner

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                                        Commonwealth v. Moore
and he agreed, for tactical reasons, that Steven Berry would not be called as a witness. N.T.

9/27/2012 at 50-51, 53-54, 150, 156-157:

               Counsel:      Your Honor, I did have an opportunity to speak about
                             the possibility of calling another witness in this case
                             with my client this morning and after discussing the
                             matter with him, I have made a decision not to call
                             that witness.

              The Court:     Is he in agreement with that?
              Defendant:      Yes.

       N.T. 9/27/2012 at 50-51.

Thereafter, this court conducted an on-the-record colloquy:
              The Court:     Is this your decision made of your own free will?
              Defendant:      Yes, Your Honor.
              The Court:     Anyone threaten you or promise you or force you
                             anything to get you to make this decision?
              Defendant:     No, Your Honor.
              The Court:     It's your decision?
              Defendant:     Yes, Your Honor.
              The Court:     Did you discuss this with your attorney?
              Defendant:     Yes, sir.
              The Court:     Are you satisfied with her services?
              Defendant:     Yes, your honor.
              The Court:     Now, in addition - You have a right to subpoena
                             and/or call witnesses. Are there any other witnesses
                             you wish to call? This is something that you've
                             discussed with your attorney previously and she's
                             told me no, and 1 want you to tell me during this
                             colloquy whether there are any other witnesses you
                             wish to call?
              Defendant:     No, Your Honor.

       N.T. 9/27/2012 at 53-54.

This court and defense counsel continued:

                                                                               8
                                     Commonwealth v. Moore
               The Court:      Ms. Coyne, before we bring the jury out, you wanted
                               to supplement the record?

                Counsel:       Yes, Your Honor. With respect to the witness -
                               Steven Berry, - I discussed the reasons for and
                               against having Mr. Berry testify or recalling him as a
                               witness for my client. We agreed that we would not
                               call Mr. Berry. I made a strategic decision that it
                               would not be wise to call Mr. Berry.

               The Court:      And that's the - witness you've spoken about?

               Counsel:        That's the unavailable witness.

               The Court:      He's already testified.

               Counsel:        Yes, he has testified previously. Mr. Berry was here
                               today, and after conferring with my client this
                               morning - I was asked by the sheriffs sometime
                               around noontime or one o'clock, a little while ago, if
                               they could return Mr. Berry, and I had made a
                               strategic decision at that point not to call him.

       N.T. 9/27/2012 at 156-157.

Hence, petitioner's assertion that trial counsel's failure to call a witness resulted in ineffective

assistance is meritless. Petitioner had the opportunity to call Steven Berry as a witness, but for

strategic reasons chose not to call him.

       Next, petitioner contends that the sentence imposed on the robbery charge was illegal.

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will

not be disturbed on appeal absent a manifest abuse of discretion. See Commonwealth v. McNabb,

819 A.2d 54 (Pa. Super. 2003). A sentence must either exceed the statutory limit or be manifestly

excessive to constitute an abuse of discretion. Commonwealth v. White, 491 A.2d 252 (Pa. Super.

1985). A jury convicted petitioner of second degree murder, robbery and criminal conspiracy. For

each offense this court imposed a sentence within the range permitted by statute. 18 Pa. C.S. §

1102(c ). An individual convicted of robbery, where he intentionally caused serious bodily injury


                                                                                9
                                      Commonwealth v. Moore
or death has committed a first-degree felony. See 18 Pa. C.S. § 3701 (a)(l)(ii), (b). A first-degree

felony carries a maximum imprisonment sentence of twenty years. Although this court sentenced

petitioner to a term of ten to twenty years of state incarceration on the robbery charge, in violation

of the prohibition against imposition of a sentence on the predicate offense in a second-degree

murder case, said sentence was ordered to run concurrently with the second-degree murder charge.

N.T. 10/1/2012 at 18. Thus, the sentence on the robbery bill can be vacated by this court without

prejudice to petitioner.

       Next, petitioner alleges that trial counsel was ineffective for failing to present "Other

Suspect Defense." This claim is meritless. Petitioner provided the police with an inculpatory

statement admitting his involvement in the robbery and murder and told the detectives that he was

promised $32,000 if he served as the gunman in the robbery of the victim. N.T. 9/26/12 at 57-59.

Moreover, video surveillance footage showed petitioner walking toward the car in which the

victim was a passenger just before the vehicle brake lights were activated, shots were fired, and

the vehicle sped away. N.T. 9/26/12 at 21-23. Immediately following the shooting, the video

footage also showed petitioner running to a large SUV belonging to his co-conspirator. N.T.

9/26/12 at 23. Consequently, petitioner cannot establish the prejudice prong required for

ineffective assistance of counsel. The Court in Commonwealth v. Travaglia, 661 A.2d 352, 357

(Pa. 1995) held that if petitioner has failed to meet the prejudice prong, this court could dispose of

the claim on that basis alone, without determining whether the first two prongs have been met.

       In his fourth claim, petitioner alleges a Brady violation occurred when the Commonwealth

failed to present its key witness, Steven Berry. In Brady, the United States Supreme Court held

that "the suppression by the prosecution of evidence favorable to an accused upon request violates

due process where the evidence is material either to guilt or to punishment, irrespective of the good



                                                                                 10
                                      Commonwealth v, Moore
faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). "[E]vidence is

material 'if there is a reasonable probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different."' Strickler v. Greene, 527 U.S. 263, 280

( 1999). "Thus, there are three necessary components that demonstrate a violation of the Brady

strictures: the evidence was favorable to the accused, either because it is exculpatory or because it

impeaches; the evidence was suppressed by the prosecution, either willfully or inadvertently; and

prejudice ensued." Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001). Here, petitioner

cannot meet his burden under Brady. Further, the Commonwealth did call Steven Berry to testify.

N.T. 9/27/2012 at 156-157. Thus, no relief can be granted on this claim.

       Next, petitioner contends that a Brady violation occurred because trial counsel failed to

cross-examine the medical examiner on an inconsistent statement, and evidence that another

individual committed the murder was suppressed. These assertions are meritless. The trial record

shows that the medical examiner was cross-examined on inconsistent statements made in his

report. N.T. 9/27/2012 at 25-30. Moreover, petitioner contends that the Commonwealth possessed

documents indicating that another individual was responsible for the murder yet fails to identify

those documents. The evidence mounted against petitioner was overwhelming: he gave the

authorities an inculpatory statement, and he was observed on video surveillance approaching and

firing at a vehicle in which the victim was a passenger. N.T. 9/26/2012 at 57-59; N.T. 9/26/2012

at 21-23. No relief can be granted on this claim.

       Lastly, petitioner alleges that the trial court abused its discretion by not entertaining his

motion to suppress his alleged coerced confession. This claim is meritless. Discretion is "abused

when the course pursued represents not merely an error of judgement, but where the judgement is

manifestly unreasonable or where the law is not applied or where the record shows that the action



                                                                                11
                                      Commonwealth v. Moore
is a result of partiality, prejudice, bias or ill will." Coker v. S. M Flickinger Company, Inc., 625

A.2d 1181 (Pa. Super. 1993). Here, a suppression hearing was held before the Honorable Shelley

Robins New who found, inter alia, that petitioner's testimony was inconsistent and unworthy of

belief. N. T. 3/22/2012 at 132. Judge Shelley Robins New also found that petitioner's confession

was made knowingly, voluntarily and intelligently, and she denied his motion to suppress the

confession. Id at 132-133. Thus, no relief can be granted on this meritless claim.

       Accordingly, for the foregoing reasons, the dismissal of petitioner's PCRA petition should

be AFFIRMED.

                                                              BY THE COURT:


                                                      �.F
                                                               SANDY L.V. BYRD           J.




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                                     Commonwealth v. Moore
