J-S60024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DAMON WALLS

                            Appellant               No. 2837 EDA 2013


               Appeal from the PCRA Order September 27, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0711932-2000,
             CP-51-CR-0711941-2000, CP-51-CR-0712002-2000,
                           CP-51-CR-0712012-2000


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                     FILED NOVEMBER 17, 2015

       Damon Walls appeals pro se from the trial court’s order dismissing his

amended petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. After careful review, we affirm.

       In 2001, Walls was convicted of first-degree murder and related

offenses1; he is serving a life sentence. The convictions stem from a two-

day shooting spree perpetrated by Walls and his co-defendant, Watts, which

resulted in the death of Isa Muhammed and serious injury to five other



____________________________________________


1
  Walls was also convicted of aggravated assault, possessing an instrument
of crime, and criminal conspiracy. He was sentenced to a consecutive
aggregate prison term of 40-80 years on those charges.
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victims, including a 12-year-old bystander. The trial court summarized the

factual background of the matter as follows:

       Damon Walls was convicted on the above charges based on
       events that occurred over the two-day period of March 30, 2001
       to March 31, 2001. On March 30, 2001, the [appellant] drove a
       car with co-defendant Edward Watts as a passenger. Using this
       vehicle, the defendants initiated a car chase involving victims
       and witnesses, Gary Corbitt, Samuel Jones, Terrance Slappy and
       Terrance Tucker. While [appellant] Walls drove the car, [co-
       defendant] Watts shot at the victim’s vehicle as the chase
       ensued. The victim’s vehicle crashed and flipped over; some
       victim sustained gunshot injuries, and subsequently received
       medical attention.

       On the next day, [appellant] Walls drove a vehicle to chase
       another vehicle containing the decedent, Isa Muhammed[,] as
       well as victim Kaamil Jones. Both defendants Walls and Watts
       were in the car, both were in possession of firearms. The
       decedent exited and ran away from the vehicle, and both
       defendants followed him on foot while shooting. Isa Muhammed
       died of gunshot wounds shortly thereafter.

Trial Court Opinion, 9/25/02, at 2.            Walls filed a direct appeal; our Court

affirmed his judgment of sentence.             Commonwealth v. Walls, No. 1137

EDA 2002 (memorandum decision) (filed 6/20/03).2 On December 2, 2004,
____________________________________________


2
  Counsel also filed a petition for remand to our Court while Walls’ appeal
was pending. In the petition, counsel requested that the Court remand the
case for an evidentiary hearing in light of Walls’ claims of ineffectiveness.
Our Court reviewed the record and determined that a remand was not
warranted as Walls’ allegations of ineffectiveness were wholly frivolous.
Walls, supra, at 3 n.6.; see Commonwealth v. Battle, 879 A.2d 266 (Pa.
Super. 2005). However, since our Court’s decision in Battle, our Supreme
Court has wholly abrogated the Battle procedure and clarified the process
by which a defendant may pursue claims of ineffective assistance of
appellate counsel in the context of post-conviction collateral proceedings.
See Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011) (proper response
to pro se pleading is to refer pleading to counsel and to take no further
(Footnote Continued Next Page)


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Walls filed the instant PCRA petition; counsel was appointed. Counsel filed a

“no merit” letter seeking to withdraw.            Walls filed an objection to the “no

merit” letter and a motion to proceed pro se.               The PCRA court sent its

Pa.R.Crim.P. 907 notice of intent to dismiss his petition within 20 days.

Without ruling on counsel’s request to withdraw or Walls’ motion to proceed

pro se, the PCRA court dismissed his petition on September 21, 2005.

      Walls filed a pro se appeal from that decision, raising 69 issues. Walls

filed motions, with the trial court and our Court, seeking the production of

transcripts for all of his proceedings. Our Court ordered the PCRA court to

provide Walls with the necessary transcripts. On appeal, our Court held that

the PCRA court abused its discretion by summarily dismissing Walls’ PCRA

claims and adopting counsel’s “no merit” letter, providing no explanation of

the nature and grounds for its legal conclusions.              Moreover, our Court

                       _______________________
(Footnote Continued)

action on pro se pleading unless counsel forwards motion). For purposes of
our Court’s 2003 decision on direct appeal from Walls’ judgment of sentence,
Jette makes clear that Walls should have chosen either: (1) to file petition
to remove counsel, prior to counsel's filing a brief, and proceed pro se, or
(2) to remain with appellate counsel for the duration of the appeal and wait
until PCRA review to assert claims of appellate counsel's ineffectiveness.
Moreover, as the Supreme Court noted in Commonwealth v. Jones, 58
A.3d 751 (Pa. 2012), even though Battle was still good law at the time of
the defendant’s direct appeal, our Supreme Court concluded in a petition for
review that the Court’s determinations were not in concert with the Jette
procedure and remanded the case back to our Court “to examine this matter
in light of Jette.” Id. at 752.




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admonished the PCRA court for failing to conduct an independent review of

the record or of Walls’ exceptions to counsel’s Turner/Finley3 letter. As a

result, our Court vacated the order dismissing Walls’ PCRA petition and

remanded the case for consideration of Walls’ motion to proceed pro se and

to conduct a proper judicial review of the record by the PCRA court to rule

upon Walls’ petition.        Commonwealth v. Walls, No. 2958 EDA 2005

(memorandum decision) (filed 10/9/08).

       On remand, the PCRA court held a Grazier hearing and new counsel,

Sondra R. Rodrigues, Esquire, was appointed to represent Walls and file an

amended petition on his behalf.          In August 2010, Walls filed a motion for

change of court-appointed counsel or, in the alternative, waiver of counsel.

The court held two hearings, ultimately concluding that Walls was not

entitled to new court-appointed counsel and that he could proceed pro se.

Walls filed an amended PCRA petition and the Commonwealth subsequently

filed its motion to dismiss. On August 22, 2013, the court sent its Rule 907

notice of intent to dismiss his petition without a hearing, to which Walls filed

objections.     On September 27, 2013, the PCRA court dismissed Walls

petition. On September 23, 2014, the trial court filed its Pa.R.A.P. 1925(a)

opinion. This appeal follows.

       On appeal, Walls presents the following issues for our review:

____________________________________________


3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).



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     1. Whether the PCRA Court committed an abuse of discretion
     and/or error of law denying Appellant's rights to federal and
     state due process by summarily dismissing PCRA claims by
     adopting the Commonwealth's motion to dismiss, and issuing an
     inadequate notice pursuant to Pa.R.Crim.P. 907(1).

     2. Whether the PCRA Court committed an abuse of discretion
     and/or error of law denying Appellant's rights to federal and
     state due process by denying Appellant's motion for change of
     court-appointed counsel.

     3. Whether the PCRA Court committed an abuse of discretion
     and/or error of law denying Appellant's PCRA petition without an
     evidentiary hearing based on whether Appellant was denied due
     process of law, all rights secured by the Sixth and Fourteenth
     Amendments to the United States Constitution, and Article 1,
     Section 9 of our Pennsylvania Constitution by PCRA counsel's
     ineffectiveness for failing to review the record and file an
     amended PCRA petition raising trial counsel's ineffectiveness for
     [:]

       [a.] Failing to object to the erroneous alibi instruction;

       [b.] Failing to object to prosecutorial misconduct where the
       prosecutor stated her false motive, and that Appellant was
       a drug dealer in gang;

       [c.] Failing to object to prosecutorial misconduct where the
       prosecutor stated her personal opinion to Appellant's guilt;

       [d.] Failing to interview and present the testimony of
       eyewitness Roger Baker;

       [e.] Failing to impeach witness with prior testimony and
       motive to implicate Appellant;

       [f.] Failing to raise on appeal that the trial court abused
       its discretion denying Appellant's motion to suppress in-
       court and out-of-court identification;

       [g.] Failing to raise on appeal that the trial court abused its
       discretion denying Appellant's motions for continuance to
       present sick alibi witnesses; [and]

       [h.] Counsel[’]s failure to investigate primary witness
       background, and obtain his exculpatory medical records.



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         The standard of review of an order denying a PCRA petition is whether

that determination 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.            Commonwealth v.

Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

         Walls first contends that the PCRA court’s Rule 907 notice of intent to

dismiss his PCRA petition was inadequate and that the PCRA court

improperly adopted the Commonwealth’s motion to dismiss in summarily

dismissing his petition. We disagree.

         Rule 907(1) states, in relevant part:

         (1) the judge shall promptly review the petition, any answer by
         the attorney for the Commonwealth, and other matters of record
         relating to the defendant's claim(s). If the judge is satisfied from
         this review that there are no genuine issues concerning any
         material fact and that the defendant is not entitled to post-
         conviction collateral relief, and no purpose would be served by
         any further proceedings, the judge shall give notice to the
         parties of the intention to dismiss the petition and shall
         state in the notice the reasons for the dismissal. The
         defendant may respond to the proposed dismissal within
         20 days of the date of the notice. The judge thereafter
         shall order the petition dismissed, grant leave to file an
         amended petition, or direct that the proceedings continue.

Pa.R.Crim.P. 907(1) (emphasis added).

         Instantly, the PCRA court’s Rule 907 notice advises Walls that it

intends to dismiss his petition, lists several reasons why it intends to dismiss

his petition, and informs him that he has 20 days from the date of the notice

to respond to the dismissal.       See Notice Pursuant to Pennsylvania Rule of



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J-S60024-15



Criminal Procedure 907, 8/22/13, at 1. Moreover, in accordance with Rule

907(1), the court subsequently filed an order formally dismissing Walls’

petition, finding all the issues raised in his petition without merit.         Order,

9/27/13.

       Consequently, the trial court’s notice wholly complies with Rule

907(1). Moreover, there is no mention in any notice or order that the court

relied in whole or in part upon the Commonwealth’s motion to dismiss in

coming to its decision to dismiss Walls’ amended PCRA petition. Therefore,

we find this claim meritless.4

       In his next issue, Walls claims the trial court abused its discretion

when it denied his motion for change of court-appointed counsel and forced

him to waive counsel.

       According     to   Walls,    his   attorney,   Ms.   Rodrigues,   ineffectively

represented him in the collateral attack on his judgment of sentence.

Specifically, he claims that she refused to pursue all of the issues he raised

in his pro se petition, raised issues in his amended petition that were not

supported by the record, and has continually refused to correct her errors.




____________________________________________


4
  We note that the cases cited by Walls to support this claim are inapposite
to the instant situation. They are both death penalty cases which invoke
Rule 909, not Rule 907. See Commonwealth v. Simpson, 66 A.3d 253,
285 (Pa. 2013) (Saylor, J., dissenting) and Commonwealth v. Rush, 838
A.2d 651, 658-59 (Pa. 2003).



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      In Commonwealth v. Floyd, 937 A.2d 494 (Pa. Super. 2007), our

Court stated that the “right to appointed counsel does not include the right

to counsel of the defendant's choice.” Id. at 497, citing Commonwealth v.

Albrecht, 720 A.2d 693, 709 (Pa. 1998). Moreover,

          [w]hether to grant a defendant's petition to replace court
          appointed counsel is a decision which is left to the sound
          discretion of the trial court. As a general rule, however, a
          defendant must show irreconcilable differences between
          himself and his court appointed counsel before a trial court
          will be reversed for abuse of discretion in refusing to
          appoint new counsel.

Id., citing Commonwealth v. Grazier, 570 A.2d 1054, 1055 (Pa. Super.

1990) (citations omitted). See Pa.R.Crim.P. 122 (“[a] motion for change of

counsel by a defendant for whom counsel has been appointed shall not be

granted except for substantial reason.”).

      The trial court originally appointed Richard B. Moore, Esquire, to

represent Walls for collateral proceedings.    Attorney Moore, however, was

permitted to withdraw pursuant to Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988).     When our Court reversed the PCRA court’s order

denying Walls relief and remanded the matter, the trial court appointed

Sondra Rodrigues to represent him and file an amended petition on Walls’

behalf.   Walls became unhappy with the issues raised in the amended

petition; consequently, in August 2010, Walls filed a “Motion for Change of

Court-Appointed Counsel or Alternative Waiver of Counsel.”       In response,

counsel filed a letter explaining the issues she selected to pursue in Walls’



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amended petition and detailing why she had concluded particular issues

Walls wished to raise were without merit.

      While an indigent petitioner seeking PCRA relief is entitled to the

mandatory appointment of counsel, this entitlement may be waived only

after addressing his entitlement to appointed counsel with the PCRA court.

See Pa.R.Crim.P. 904. In order to waive counsel, a defendant’s waiver must

be knowing, intelligent and voluntary.        See Grazier, supra (when

defendant seeks waiver of right to counsel at post-conviction and appellate

stages, trial court must conduct on-the-record determination that waiver is

knowing, intelligent, and voluntary).   Moreover, in such cases a court can

appoint standby counsel for a defendant who elects to proceed pro se.

      On September 23, 2010, and May 26, 2011, the court held hearings to

determine whether new counsel should be appointed to replace Walls’

current counsel, Attorney Rodrigues, and, if not, whether he should proceed

pro se.   At the first hearing Walls chose to proceed in the absence of

counsel’s presence. He gave specific examples of why he believed that he

was entitled to new counsel.    The court essentially determined that Walls’

complaints boiled down to a fundamental disagreement with his attorney’s

strategies.   The record is replete with letters between Walls and Attorney

Rodrigues supporting this conclusion.

      Counsel was diligently and effectively attempting to advocate on behalf

of Walls; in counsel’s words “he [could not] accept that not everything

c[ould] be done exactly when [he] want[ed] it.”      Letter from Sondra R.

                                    -9-
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Rodrigues, Esq., 4/17/10. Under such facts, we find that the court properly

determined that Walls was not entitled to new counsel.       See Floyd, supra

(appointment of new counsel not warranted where defendant merely alleges

difference of opinion in trial strategy, defendant lacks confidence in counsel’s

ability, or defendant alleges strained relationship with counsel); see also

Pa.R.Crim.P. 122.

      Moreover, once the PCRA court made the determination that new

counsel would not be appointed, the focus shifted to Walls to determine if he

wished to proceed pro se. Walls unequivocally told the court that he wished

to no longer be represented by Attorney Rodrigues and wanted, instead, to

represent himself.    N.T. Grazier Hearing, 5/26/11, at 10.           The court

conducted a full colloquy to ensure that Walls was waiving his right to

counsel, and that the waiver was being made knowingly, intelligently, and

voluntarily.   The court’s inquiry made Walls aware of both the right to

counsel and the risks of forfeiting that right, specifically indicating that many

rights and potential claims may be permanently lost if not timely asserted

and, that despite pro se status, he would still be bound by all normal

procedural rules. Commonwealth v. Meehan, 628 A.2d 1151, 1157 (Pa.

Super. 1993). Accordingly, we find that Walls properly invoked his right to

self-representation and that the trial court did not abuse its discretion in

permitting him to waive his right to counsel and proceed pro se.            See

Commonwealth v. Monica, 597 A.2d 600 (Pa. 1991) (record must show




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that accused was offered counsel but intelligently and understandingly

rejected offer; anything less is not waiver).

      In his final claim on appeal, Walls asserts that the PCRA court abused

its discretion by denying his petition without a hearing where he raised PCRA

counsel’s ineffectiveness for failing to raise, in an amended petition, several

meritorious claims of trial counsel’s ineffectiveness.

      A court may dismiss a PCRA petition without a hearing, and after

proper notice is given to the parties, when:

      [T]he judge is satisfied from this review [of the petition] that
      there are no genuine issues concerning any material fact
      and that the defendant is not entitled to post-conviction
      collateral relief, and no purpose would be served by any
      further proceedings.

Pa.R.Crim.P. 907(1) (emphasis added). Moreover, with respect to claims of

ineffective assistance of counsel, we begin with the presumption that counsel

is effective.   Commonwealth v. Spotz, 47 A.3d 63, 76 (Pa. 2012).           To

prevail on an ineffectiveness claim, a petitioner must plead and prove, by a

preponderance of the evidence, three elements: (1) the underlying legal

claim has arguable merit; (2) counsel had no reasonable basis for his or her

action or inaction; and (3) the petitioner suffered prejudice because of

counsel's action or inaction. Id. (citation omitted).

      Ineffectiveness with regard to Alibi Instruction

      Walls complains that the trial court’s alibi instruction improperly

included his co-defendant, and, as a result, misled the jury. Specifically, he

alleges that the instruction made the jury think that it was required to acquit

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both defendants if it believed the alibi testimony.             Because the alibi

testimony did not categorically exclude the possibility that his co-defendant

perpetrated the crimes charged, Walls asserts he was prejudiced by the

instruction. We disagree.

     The trial court’s instruction clearly indicated to the jury that each co-

defendant’s case was to be considered independently.            That principle also

encompasses consideration of an alibi defense with regard to each co-

defendant, Walls and Watts.          Additionally, the Commonwealth’s cross-

examination of the alibi witness, Sheryl Allen, brought out the specific

whereabouts of each co-defendant and highlighted the fact that the alibi was

more favorable to Walls. Finally, Walls has failed to show that he suffered

prejudice as a result of the charge where there was overwhelming evidence

of his guilt based upon testimonial evidence as well as eyewitness accounts.

Spotz, supra.

     Ineffectiveness for Failing to Review Record/Object to Prosecutor’s
     Remarks

     Walls claims that trial counsel was ineffective for not objecting to the

prosecutor’s    misconduct    during    closing   arguments.        Specifically,   he

complains that during the Commonwealth’s closing arguments he was

improperly referred to as a drug dealer.          He contends that this reference

undercut his defense and rendered his trial unfair. We disagree.

     Upon      review   of   the   closing   arguments,   it   is   clear   that    the

Commonwealth’s reference to drug dealers, while made in passing about the


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defendant, was also made with regard to eyewitnesses, Samuel Jones and

Gary Corbitt, as well as the victim. The Commonwealth made this reference

to debunk the myth that just because eyewitnesses may be an “unsavory

bunch” it does not mean they are not credible. N.T. Trial (Jury), 11/1/01, at

143-44.   Moreover, as the Commonwealth acknowledged in its Motion to

Dismiss, the reference to drug dealing was made in an effort to downplay

the   defense’s   drug-gang   turf   war      theory   and   to   emphasize    the

Commonwealth’s theory of motive which focused on revenge-killing.

      Walls also claims that counsel was ineffective for failing to object to

the prosecutor’s prejudicial opinion regarding Walls’ guilt.       Specifically, in

closing arguments the prosecutor stated that Walls was the “judge, jury and

executioner of [the victim].” Id. at 145.

      A prosecutor must limit closing remarks to the facts in evidence and

the legitimate inferences that may be drawn therefrom. Commonwealth v.

Anderson, 415 A.2d 887 (Pa. 1980).             Whether improper prosecutorial

remarks constitute reversible error depends on whether they are so

unavoidably prejudicial as to prevent an unbiased verdict. Commonwealth

v. Gilman, 401 A.2d 335, 341 (Pa. 1979).          The effect depends upon the

atmosphere of the trial, and the court has discretion to decide what action

should be taken. Id. Where the evidence and any legitimate inferences that

may be drawn therefrom support the remark, it will be permitted.

Anderson, supra at 888.




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      Instantly, the prosecutor’s remark was made in passing during the

course of a lengthy closing argument.         Evaluated in context of the entire

closing argument, and supplanted by the overwhelming evidence of Walls’

guilt, we conclude that the language used by the prosecutor to portray the

defendant did not have “the unavoidable effect [of] prejudic[ing] the jury,

forming in their minds fixed bias and hostility towards the accused which

would prevent them from properly weighing the evidence and rendering a

true verdict.”   Commonwealth v. Spotz, 896 A.2d 1191 (Pa. 2006)

(citation omitted). Therefore, this ineffectiveness claim fails.

      Ineffectiveness for Failing to Interview Eyewitness Baker

      Walls claims that trial counsel was ineffective for not calling Roger

Baker as a trial witness.   Walls asserts that the statement Baker gave to

police about the instant crime contradicted evidence presented by the

Commonwealth showing that Walls was involved in the victim’s murder and

attempted murder of another victim.

      As the Commonwealth points out, any discrepancy between Baker’s

statement recounting the shooting and those of Commonwealth witnesses

incriminating Walls was slight, at best.        Moreover, a jury is capable of

reconciling any such discrepancy and Walls points to nothing in the record to

establish that the verdict would have been different if Baker had been called

as a trial witness.   Commonwealth v. Butler, 647 A.2d 928, 931 (Pa.

Super. 1994).

      Ineffectiveness for Failing to Impeach Witness’s Trial Testimony

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      Next, Walls claims that PCRA counsel was ineffective for failing to raise

trial counsel’s ineffectiveness for not impeaching Commonwealth witness,

Samuel Jones, with his prior inconsistent statement and bias against Walls.

Specifically, Walls asserts that Jones’ initial statement to police, which did

not identify Walls as the assailant, is inconsistent with his preliminary

hearing testimony and trial testimony, in which he admitted he did not

identify Walls from a photo array until six days following the shooting.

      Walls’   argument   on      this   issue    is   disjointed,   contradictory   and

completely incoherent.     Therefore, we decline to review it further.               See

Commonwealth v. Delligatti, 538 A.2d 34, 41 (Pa. Super. 1988) (citing

Commonwealth v. Sanford, 445 A.2d 149, 150 (Pa. Super. 1982)).

      Ineffectiveness for Failing to Challenge on Direct Appeal Denial
      of Motion to Suppress Identification Testimony

      Walls alleges that counsel was ineffective for failing to challenge the

court’s denial of his motion to suppress Samuel Jones’ in-court and out-of-

court identification testimony implicating him in the shooting. Walls claims

that the photo array procedure was suggestive where the detectives coerced

Jones’ identification of Walls.     Consequently, Walls concludes that, without

an independent basis, this procedure led to a tainted identification of him as

the perpetrator.

      An in-court identification may be admissible despite the inadmissibility

of a pre-trial identification where the in-court identification is not tainted by

the prior identification. Commonwealth v. Wade, 33 A.3d 108 (Pa. Super.


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2011) (citing Commonwealth v. Baker, 614 A.2d 663 (Pa. 1992)).              “In

gauging reliability, we employ a totality of circumstances test.” Wade, 33

A.3d at 114.

      The police officers who conducted the photo array consistently testified

that Jones wrote the name “Damon” on the bottom of the photo of Walls

after he identified him as his assailant and after the officers asked him to

sign his name on the bottom of the picture.           This testimony directly

contradicts Walls’ claim that the officers coerced Jones into identifying Walls.

Moreover, Jones had ample opportunity to view Walls through the untinted

windshield as it drove by him twice before a car chase ensued. Accordingly,

the jury was free to believe the testimony of the officers with regard to the

non-suggestive nature of the photo array and also credit Jones’ in-court

identification of Walls. Wade, supra. Accordingly, we find no merit to this

claim.

      Ineffectiveness for Failing to Challenge on Direct Appeal Denial of
      Motion for Continuance

      Walls next asserts that counsel was ineffective for failing to challenge

the trial court’s denial of his request for a continuance on the basis that

material witnesses, Cheryl Allen and Rebecca Earp, were ill.       Specifically,

Walls claims that the court never asked the reason for the continuance

request or inquired as to what the substance of the witnesses’ testimony

would have been, and also incorrectly determined that Walls had waived the

continuance issue with regard to Earp.


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      We first note that Sheryl Allen, Cheryl Allen’s daughter, did in fact

testify as an alibi witness at Walls’ trial.      Walls has failed to produce any

evidence to support the fact that Sheryl Allen’s mother’s testimony would

have been anything other than cumulative of her daughter’s. Walls also fails

to explain in his brief how the testimony of Earp, who is the sister of Sheryl

Allen and daughter of Cheryl Allen, would have “completed his defense,”

other than the mere fact that they are related to each other. Without more

to   substantiate   his   claim,   we   find     no   merit   to   this   issue.   See

Commonwealth v. Howard, 353 A.2d 438 (Pa. 1976) (trial court’s decision

to grant or refuse continuance is based on whether witness is essential to

defense or necessary to strengthen defendant’s case, diligence exercised to

procure presence of witness at trial, facts to which witness could testify, and

likelihood that witness could be produced at next term of court). Moreover,

a span of 16 days elapsed between the filing of Walls’ continuance motion

and the commencement of the defense’s case.                   Again, Walls does not

explain how the witnesses were still unavailable at that time. Therefore, we

cannot find that counsel was ineffective for failing to challenge the trial

court’s decision where it was not an abuse of discretion to denying the

continuance request.

      Ineffectiveness for Failing to Investigate Commonwealth Witness’s
      Background and Obtain Medical Records

      Finally, Walls claims that counsel was ineffective for failing to

investigate the background of Samuel Jones and obtain his “exculpatory”


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medical records which would have been used to impeach his credibility as

the Commonwealth’s chief witness in the case.

      In Commonwealth v. Polk, 500 A.2d 825 (Pa. Super. 1985), this

court set forth the standard for determining the ineffectiveness of counsel

for the failure to investigate witnesses.    In order to prevail, the appellant

must demonstrate: (1) the identity and existence of the witnesses; (2) that

counsel knew of the witnesses; (3) the material evidence that the witnesses

would have provided; and (4) the manner in which the witnesses would have

been helpful to appellant’s case. Id. at 829. See also Commonwealth v.

Gillespie, 620 A.2d 1143 (Pa. Super. 1993); Commonwealth v. Petras,

534 A.2d 483 (Pa. Super. 1987).

      Walls contends that without Jones’ testimony the Commonwealth

would not have been able to charge him with the stated crimes. Specifically,

Jones’ medical records from Temple University Hospital, where he was taken

following the shooting, indicate that he told medical personnel that he was

shot in the back while sitting in the backseat of a car.     At trial, however,

Jones testified that he was driving the vehicle while he was shot.

      While Jones’ statement to hospital personnel regarding where he was

sitting in the car at the time he was shot contradicts his trial testimony, it

does not make his entire version of events impossible.       Moreover, several

other witnesses, who were actual passengers in Jones’ car on the night in

question, corroborated Jones’ trial testimony with regard to where he was

standing in the street when Walls and Watts first passed him and the fact

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that Jones could see the perpetrators through the untinted front windshield

of their car. Given the limited impeachment potential of Jones’ statement,

coupled   with   the    extensive   cross-examination   that   defense   counsel

conducted on Jones, we find that Walls has failed to show prejudice.

Therefore, he must fail in his ineffectiveness claim. Spotz, 47 A.3d at 76 (to

prevail on ineffectiveness claim,     petitioner must plead and prove, by a

preponderance of the evidence, three elements: (1) underlying legal claim

has arguable merit; (2) counsel had no reasonable basis for his or her action

or inaction; and (3) petitioner suffered prejudice because of counsel's action

or inaction.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2015




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