J-S10005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY MEDINA, JR.                        :
                                               :
                       Appellant               :   No. 2893 EDA 2017

                   Appeal from the PCRA Order August 4, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0302492-2004


BEFORE:      GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                FILED MARCH 22, 2019

       Appellant, Anthony Medina, Jr., pro se, appeals from the order of the

Court of Common Pleas of Philadelphia County, entered August 4, 2017, that

dismissed his petition filed under the Post Conviction Relief Act (“PCRA”)1

without a hearing. We affirm.

       On February 17, 2006, a jury convicted Appellant of the murder of

Fernando Rodriguez and related charges.            During trial, the Commonwealth

presented the testimony of two identification witnesses, Alexis Gomez and

Marilyn Colon.2 Gomez identified Appellant as the shooter of Rodriguez. Trial


____________________________________________


1   42 Pa.C.S. §§ 9541–9546.
2 Appellant disagrees with the PCRA court’s description of Colon as an
“eyewitness.” Appellant’s Brief at 29 (citing PCRA Court Opinion, filed



*    Retired Senior Judge assigned to the Superior Court.
J-S10005-19


Court Opinion, filed October 30, 2006, at 12 (citing N.T., 10/12/2005, at 193-

94).3 Gomez noted Appellant’s “work gloves.” Id. (citing N.T., 10/12/2005,

at 198-99). Gomez testified that Appellant had been “a few feet from his

window[,]” “that he had a clear view of [A]ppellant[,]” and that he “observed

[A]ppellant for more than five minutes.”          Id. at 12, 15 (citing N.T.,

10/12/2005, at 198-99). “He further testified that there were lights next to

his window, on the corner and on the building next door.” Id. at 13 (citing

N.T., 10/12/2005, at 192).

       Colon identified Appellant as the man she saw fleeing the crime scene

when she looked out her second-floor bay window. Id. at 10-11, 15 (citing

N.T., 10/12/2005, at 18, 26, 30, 34). Colon explained that she had a clear

view of Appellant’s uncovered face for about five minutes and that a light



____________________________________________


December 26, 2017, at 11). We have thus chosen to refer to Gomez and
Colon as “identification witnesses,” instead.
3 The notes of testimony for October 11 and 12, 2005 were not included in the
certified record. As discussed below, several other filings are missing from
the certified record. Just as we observed in Erie Insurance Exchange v.
Moore, 175 A.3d 999, 1006 (Pa. Super. 2017) (citing Smith v. Township of
Richmond, 82 A.3d 407, 417 n.9 (Pa. 2013)), reargument denied (Jan. 24,
2018), appeal granted on other grounds, 189 A.3d 382 (Pa. 2018), “we lament
the state of the record, which has encumbered our consideration of this
appeal. . . . Omissions like these significantly impair our ability to consider an
appeal.” However, this Court’s decision on direct appeal accepted the trial
court opinion’s presentation of the facts of this case. Commonwealth v.
Medina, No. 720 EDA 2006, unpublished memorandum at 1-4 (Pa. Super.
filed April 1, 2008). We thus will consider the trial court’s representation of
the trial testimony from October 11 and 12, 2005, to be accurate.


                                           -2-
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shined directly onto Appellant, with a second light coming from a nearby

building.

      In addition to these two identification witnesses, the Commonwealth

also presented the testimony of April Velez, who testified that, prior to the

killing, she heard Appellant planning to murder the victim and accompanied

him to Home Depot “to purchase gloves,” id. at 22 (citing N.T., 10/11/2005,

at 175), and of Rashaan Washington, who testified that, after the killing, he

heard Appellant admit to the murder. Id. at 20 (citing N.T., 10/12/2005, at

109). Sergeant Matthew Stash of the Wilkes-Barre Police Department testified

that, when Appellant was arrested, the murder weapon was in his possession.

N.T., 10/14/2005, at 135. No character witnesses were called on behalf of

Appellant.

      Appellant was convicted of murder of the first degree and related

charges and sentenced to life imprisonment, and this Court affirmed his

judgment of sentence. On March 25, 2009, Appellant, pro se, timely filed a

PCRA petition. Appellant’s appointed PCRA counsel then filed an amended

PCRA petition contending that his appellate counsel was ineffective for failing

to file a petition for allowance of appeal to the Supreme Court of Pennsylvania

and requesting that his right to file such a petition be reinstated nunc pro tunc.

The PCRA court dismissed Appellant’s PCRA petition without a hearing. PCRA

Court Opinion, filed July 28, 2010, at 1. This Court vacated the PCRA order

and reinstated Appellant’s right to file a petition for allowance of appeal to our


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Supreme Court.          Commonwealth v. Medina, No. 1515 EDA 2010,

unpublished memorandum at 1 (Pa. Super. filed April 17, 2012).               On

October 11, 2012, Appellant filed his petition for allowance of appeal, which

was denied by the Supreme Court on June 6, 2013.          Commonwealth v.

Medina, 68 A.3d 907 (Pa. 2013).

       On April 7, 2014, Appellant, pro se, filed the current, timely PCRA

petition. On April 16, 2016, PCRA counsel filed an amended PCRA petition,4

alleging that “[t]rial counsel was ineffective for failing to call character

witnesses as to [Appellant]’s reputation for being non-violent” and that

“[d]irect appeal counsel was ineffective for failing to immediately raise known

recantation made by inculpatory witness, Rashaad Washington.” Amended

PCRA Petition, 4/16/2016, at 4-5. Attached to the amended PCRA petition




____________________________________________


4 Again, we lament the state of the record. No order appointing counsel or
granting permission to file an amended petition appears in the certified record
or on the docket. The docket merely states that PCRA counsel entered his
appearance on August 14, 2014. There is also no explanation in the certified
record or on the docket as to why over 20 months passed between PCRA
counsel’s entry of appearance and his filing of an amended PCRA petition.

In its brief to this Court, the Commonwealth states that the PCRA court
appointed counsel but makes no mention of it granting permission to file an
amended PCRA petition. Commonwealth’s Brief at 5.

However, as neither party objects to the absence of such orders from the
record, their omission will not affect our ultimate decision, even though
“[o]missions like these significantly impair our ability to consider an appeal.”
Erie, 175 A.3d at 1006.


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were affidavits from Yolana Medina, Malta Medina Andrade, Alex Garcia, and

Clari Medina, each stating in their entirety:

       I, [affiant’s name], hereby attest that the foregoing Affidavit is
       true and correct with regard to case CP-51-CR-0302492-2004 and
       to the best of my knowledge, information and belief. I state this
       subject to the penalties of perjury.

       I was available and willing to testify on behalf of
       Anthony Medina, Jr. as to his appropriate good character at the
       above-docket trial but I was not called as a witness.

Id., App. A (Aff. of Yolana Medina, 11/9/2015; Aff. of Malta Medina Andrade,

11/17/2015; Aff. of Alex Garcia, 11/28/2015; Aff. of Clari Medina,

12/15/2015). Each affidavit included the affiant’s address: Yolana Medina

lived in Philadelphia; Andrade lived in the Bronx, New York; Garcia lived in

Silver Springs, Maryland; and Clari Medina lived in Orlando, Florida. Id.

       On August 3, 2016, the PCRA court entered a notice of intent to dismiss

all claims without a hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907 Notice”).

On August 16, 2016, Appellant filed, pro se, a “Motion to Suspend Rule 907

Order Pending Disposition of Petitioner’s Pending Motion to Conduct a

Grazier[5] Hearing.”6 According to the most recent PCRA court opinion: “On

November 29, 2016, a hearing pursuant to [Grazier] was conducted.

Thereafter, the [PCRA c]ourt found [A]ppellant’s decision to represent himself

____________________________________________


5   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
6Despite the name of this filing, no motion to conduct a Grazier hearing was
pending at that time.




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knowing[,]     intelligent    and    voluntary.”   PCRA   Court   Opinion,   filed

December 26, 2017, at 6.7 On February 9, 2017, Appellant, pro se, filed a

response requesting to amend his PCRA petition, which the PCRA court

granted.

       On February 16, 2017, Appellant filed “Petitioner’s Objection to PCRA

Court Notice of Intent to Dismiss Post-Conviction-Relief-Act Petition without a

Hearing” (hereinafter “Objection”), again contending that trial counsel was

ineffective for failing to call character witnesses “in support of his mistaken

identity defense.”      Objection, 2/16/2017, at 5.   Appellant argued that he

suffered prejudice due to trial counsel’s failure to call character witnesses,

because calling such witnesses “would have been consistent with trial

counsel’s strategy” and “would have made his defense of mistaken identity

more believable, by portraying [Appellant] as a non-violent man.” Id. at 9.

       On August 4, 2017, the PCRA court dismissed Appellant’s petition. On

August 31, 2017, Appellant filed this timely appeal.




____________________________________________


7 Nothing in the certified record or on the docket confirms that a Grazier
hearing was held or that the PCRA court allowed PCRA counsel to withdraw
and Appellant to proceed pro se. However, although, again, “[o]missions like
these significantly impair our ability to consider an appeal[,]” Erie, 175 A.3d
at 1006, both Appellant and the Commonwealth agree that the hearing
occurred and the order was entered, and we will thus accept the procedural
history as presented in the PCRA court’s opinion. Appellant’s Brief at 16;
Commonwealth’s Brief at 5; PCRA Court Opinion, filed December 26, 2017, at
6.


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     On November 1, 2017, the PCRA court ordered Appellant “to file of

record and serve on the trial judge” a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b); the order also stated: “A failure

to comply with such direction may be considered by the appellate court as a

waiver of all objections to the Order, ruling or other matter complained of.”

Order, 11/1/2017.    Appellant complied and filed a statement of errors

complained of on appeal on November 9, 2017. The trial court entered its

opinion on December 26, 2017.

     Appellant presents the following issues for our review:

     I.    Should the PCRA court’s failure to inform Appellant of the
     requirements of Pa.R.A.P. 1925(b)(3)(iv), in its written order,
     preclude a finding that the issues briefed on this appeal are waived
     under Pa.R.A.P. 1925(b)(4)(vii), as a matter of law?

     II.   Did the PCRA court commit an error of law when denying
     Appellant, Anthony Medina Jr., post-conviction relief or an
     evidentiary hearing on his meritorious ineffective assistance of
     counsel claims that:

        a). Trial counsel failed to inform him of his right to present
        and call character witnesses at trial to testify to his non-
        violent reputation?

        b). Appellate counsel failed to raise an after-discovered
        evidence claim on direct appeal upon receiving a recantation
        letter      written    by      Commonwealth          witness
        Rashaan Washington?

        c). All prior counsel failed to conduct a competent
        investigation into Rashaan Washington’s inculpatory police
        statement and testimony upon learning he offered false
        evidence used to deprive [Appellant] of a fair trial?

Appellant’s Brief at 5 (suggested answers, PCRA court’s answers, and

unnecessary capitalization omitted).


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      “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018).

                          Pa.R.A.P. 1925(b)(3)(iv)

      Appellant first contends that “the PCRA court’s failure to inform [him] of

the requirements of Pa.R.A.P. 1925(b)(3)(iv) in its written order precludes this

Court from finding that the claims now briefed on this appeal are waived under

Pa.R.A.P. 1925(b)(4)(vii).” Appellant’s Brief at 21. Pa.R.A.P. 1925(b)(3)(iv)

states: “The judge’s order directing the filing and service of a Statement shall

specify . . . that any issue not properly included in the Statement timely filed

and served pursuant to subdivision (b) shall be deemed waived.”            In the

current action, the PCRA court’s order directing Appellant “to file of record and

serve on the trial judge” a concise statement of errors warned: “A failure to

comply with such direction may be considered by the appellate court as a

waiver of all objections to the Order, ruling or other matter complained of.”

Order, 11/1/2017.     Thus, the PCRA court’s order complied with Pa.R.A.P.

1925(b)(3)(iv), and Appellant’s first challenge is meritless.

                  Ineffective Assistance of Trial Counsel

      Next, Appellant argues that “the PCRA court committed an error of law

when denying [him] post-conviction relief or an evidentiary hearing” on his

claim that his trial counsel was ineffective for “fail[ing] to inform Appellant of

his right to present and call character witnesses at trial to testify to his non-


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violent reputation” when he “stood trial for a violent crime of murder.”

Appellant’s Brief at 22, 25. He adds that this Court “has not hesitated to find

arguable merit to such a claim” in other cases.               Id. at 23 (citing

Commonwealth v. Carter, 597 A.2d 1156, 1162 (Pa. Super. 1991) (finding

claim that trial counsel failed to inform appellant of his right to call character

witnesses to be of arguable merit); Commonwealth v. Luther, 463 A.2d

1073, 1081 (Pa. Super. 1983) (trial counsel’s failure to advise appellant, prior

to trial, of the importance of character witnesses was ill-advised, appellant’s

ineffectiveness claim was of arguable merit)).

      The admission of character evidence is controlled by Pa.R.E. 404 and

405. According to Pa.R.E. 404(a)(2)(A), “a defendant may offer evidence of

the defendant’s pertinent trait[.]” The official comment to Pa.R.E. 404 further

clarifies that subsection (a)(2)(A) “allows the defendant to ‘put his character

in issue,’ usually by calling character witnesses to testify to his good reputation

for a law-abiding disposition, or other pertinent trait of character.” Cmt. to

Pa.R.E. 404.    Pursuant to Pa.R.E. 405(a):      “When evidence of a person’s

character or character trait is admissible, it may be proved by testimony about

the person’s reputation.    Testimony about the witness’s opinion as to the

character or character trait of the person is not admissible.” This Court has

explained:

      Evidence of good character offered by a defendant in a criminal
      prosecution must be limited to his general reputation for the
      particular trait or traits of character involved in the commission of
      the crime charged. Such evidence must relate to a period at or

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         about the time the offense was committed and must be
         established by testimony of witnesses as to the community
         opinion of the individual in question, not through specific acts or
         mere rumor.

Commonwealth v. Radecki, 180 A.3d 441, 453–54 (Pa. Super. 2018)

(citation omitted) (some formatting).

         In the current appeal, the affidavits from alleged character witnesses

that were attached to Appellant’s amended PCRA petition do not list what

character trait the witnesses would be testifying about.         Amended PCRA

Petition, 4/16/2016, App. A. Therefore, the proposed testimony would not

comply with the requirement of Pa.R.E. 404(a)(2)(A) that only evidence of a

“defendant’s pertinent trait” may be admitted as character evidence.

Additionally, none of the affidavits refer to the potential character witnesses’

ability to testify to Appellant’s “reputation,” Amended PCRA Petition,

4/16/2016, App. A; only reputation evidence may be used to prove character,

not the individual’s opinion of the Appellant’s character. Pa.R.E. 405(a); see

also Cmt. to Pa.R.E. 404. Also, only one of the affiants, Yolana Medina, lives

in Philadelphia; the other three live in other states. Amended PCRA Petition,

4/16/2016, App. A. Thus, only one could testify “as to the community opinion”

of Appellant. Radecki, 180 A.3d at 454. For all these reasons, Appellant

failed to establish that the testimony of any of his would-be character

witnesses would have been admissible under Pa.R.E. 404(a) and 405(a), and

we cannot find trial counsel ineffective for failing to call these witnesses at

trial.    See Commonwealth v. Sneed, 45 A.3d 1096, 1115 (Pa. 2012)



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(“Counsel will not be deemed ineffective for failing to raise a meritless

claim.”).

       Assuming we accept the representation of the amended PCRA petition

and in Appellant’s brief that Appellant’s character witnesses would have

testified to his reputation for being “non-violent,” Amended PCRA Petition,

4/16/2016, at 4-5; Appellant’s Brief at 22, and that their testimony would

have been admissible pursuant to Pa.R.E. 404(a)(2)(A) and 405(a), we would

still conclude that Appellant’s ineffective assistance claim is without merit.

       In establishing whether defense counsel was ineffective for failing
       to call witnesses, [A]ppellant must [still] prove (1) the witness
       existed; (2) the witness was available to testify for the defense;
       (3) counsel knew of, or should have known of, the existence of
       the witness; (4) the witness was willing to testify for the defense;
       and (5) the absence of the testimony of the witness was so
       prejudicial as to have denied the defendant a fair trial.[8]

Commonwealth v. Treiber, 121 A.3d 435, 463–64 (Pa. 2015) (citations

omitted)    (some     formatting).        For   example,   in   Commonwealth     v.

Goodmond, 190 A.3d 1197, 1202 (Pa. Super. 2018), this Court concluded

that defense counsel was not ineffective for failure to call two character

witnesses when the appellant “failed to demonstrate to the PCRA court or to

this Court that trial counsel had been aware of these particular witnesses at

the time of trial, or should have been aware of them[,]” and that “the absence

____________________________________________


8As Appellant notes in his brief, Appellant’s Brief at 22, 28, the PCRA court
only analyzed this issue pursuant to the prejudice prong. PCRA Court Opinion,
2/26/2017, at 11-12. Nevertheless, “[t]his Court may affirm a PCRA court’s
decision on any grounds if the record supports it.” Commonwealth v.
Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012).

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of the proposed witnesses’ testimony was so prejudicial as to deny him a fair

trial[.]”

       Although Appellant presented affidavits from four alleged character

witnesses that satisfied the first, second, and fourth prongs of the test to

determine whether defense counsel was ineffective for failing to call witnesses,

Amended PCRA Petition, 4/16/2016, App. A, Appellant does not plead that

trial counsel knew or should have known of the existence of these potential

character witnesses. Treiber, 121 A.3d at 464; see Goodmond, 190 A.3d

at 1202. Thus, Appellant has failed to fulfill one of the prongs of the test to

establish that defense counsel was ineffective for failing to call witnesses, and

his entire ineffectiveness claim based on trial counsel’s failure to call character

witnesses collapses. See Treiber, 121 A.3d at 464; Goodmond, 190 A.3d

at 1202.

       Assuming Appellant had established that trial counsel was aware of his

potential character witnesses, Appellant still failed to suffer prejudice due to

the lack of character witnesses during trial. See Treiber, 121 A.3d at 464;

see also Goodmond, 190 A.3d at 1202. In his brief to this Court, Appellant

contends that the testimony of character witnesses would have undermined

the credibility of Gomez, Colon, Washington, and Velez and that he hence was

prejudiced by trial counsel’s failure to call character witnesses. Appellant’s

Brief at 28-36. However, in his pleading before the PCRA court, Appellant only

argued that character witnesses would have aided his defense of mistaken

identification. Objection, 2/16/2017, at 5, 9. “Issues not raised in the lower

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court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.

302(a). We will therefore only consider the claim raised in the PCRA court –

i.e., whether character witnesses could have undermined Gomez’s and Colon’s

identification testimony.

      Pursuant to our review of the record, we conclude that both Gomez’s

and Colon’s identifications of Appellant were so strong that character witness

testimony would have been insufficient to cast doubt on their credibility and

veracity. Both Gomez and Colon testified that they had clear, well-lighted

views of Appellant and that they observed him for about five minutes. Trial

Court Opinion, filed October 30, 2006, at 10-13, 15. Colon also testified that

she had looked down on Appellant from a second-story, large bay window and

that Appellant’s face was uncovered.       The inclusion of character witness

testimony would not have altered the jury’s credibility determination and,

thus, the outcome of the trial; hence, Appellant was not prejudiced by trial

counsel’s failure to call character witnesses at trial. Accordingly, trial counsel

cannot be considered ineffective for this reason. Treiber, 121 A.3d at 464.

      The current matter can therefore be distinguished from the two cases,

Carter and Luther, relied upon by Appellant in his brief, Appellant’s Brief at

23, because, based upon the facts in both those cases, this Court concluded

that there was a likelihood that, had character witnesses been introduced, the

outcome of trial may have been different.       See Carter, 597 A.2d at 1163

(character evidence “would not have been inconsistent with the trial strategy

of alibi which counsel pursued at trial and, indeed, may have bolstered

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appellant’s alibi defense”9; “trial counsel’s failure to inform appellant of that

option may have deprived appellant of an available defense having substantial

potential for success”); Luther, 463 A.2d at 1080 (“In a case where virtually

the only issue is the credibility of the witness for the Commonwealth versus

that of the defendant, failure to explore all available alternatives to assure

that the jury heard the testimony of a known witness who might be capable

of casting doubt upon the truthfulness of the Commonwealth witness is

ineffective assistance of counsel.”).10

       As Appellant is not entitled to PCRA relief on his second challenge, he is

likewise not entitled to an evidentiary hearing on that claim. Commonwealth

____________________________________________


9 Carter consequently can be distinguished from the instant action, because
character witnesses in Carter were intended to bolster an alibi defense,
whereas, in the instant appeal, Appellant’s defense was one of mistaken
identity. Compare 597 A.2d at 1163 with Objection, 2/16/2017, at 5, 9.
10 Ergo, Luther can also be distinguished from the instant case, because
(1) the Commonwealth’s case in Luther almost entirely relied upon the
testimony of one witness, whereas the instant matter involved multiple
witnesses, and (2) the appellant testified in Luther, making his character for
truthfulness an important issue, whereas Appellant in the present action did
not testify. Compare Luther, 463 A.2d at 1076, 1080 with Trial Court
Opinion, filed October 30, 2006, at 10-13, 15, 20, 22.

Luther is further distinguished by the fact that the appellant in that appeal
had no criminal record, whereas Appellant had a criminal record, which could
have been used to counter any assertions by character witnesses as to
Appellant’s good reputation. Compare Luther, 463 A.2d at 1078-79 with
Docket No. CP-40-CR-0002715-2001 (in 2002, Appellant pleaded guilty to
manufacture, delivery, or possession with intent to manufacture or deliver, a
controlled substance, 35 P.S. § 780-113(a)(30), and firearms not to be carried
without a license, 18 Pa.C.S. § 6106(a)).



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v. Postie, ___ A.3d ___, 2018 PA Super 340, *10 (filed Dec. 12, 2018) (en

banc) (“A petitioner is not entitled to a PCRA hearing as a matter of right; the

PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings.”).

                Ineffective Assistance of Appellate Counsel11

       Finally, Appellant maintains that his appellate counsel was ineffective

for “fail[ing] to raise an after-discovered evidence claim on direct appeal upon

receiving a recantation letter written by” Washington. Appellant’s Brief at 38.

Appellant further contends that Washington admitted that his testimony about

hearing Appellant’s admission to the murder was false. Id. at 39.

       [C]ounsel is presumed to be effective.

       To overcome this presumption, a PCRA petitioner must plead and
       prove that: (1) the underlying legal claim is of arguable merit;
       (2) counsel’s action or inaction lacked any objectively reasonable
       basis designed to effectuate his client’s interest; and
       (3) prejudice, to the effect that there was a reasonable probability
       of a different outcome if not for counsel’s error.

Commonwealth v. Root, 179 A.3d 511, 518 (Pa. Super. 2018) (citation

omitted) (some formatting). “A failure to satisfy any of the three prongs of

[this] test requires rejection of a claim of ineffective assistance[.]”

Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011).
____________________________________________


11 Although Appellant lists two separate questions alleging ineffective
assistance of counsel relating to Washington’s evidence in his statement of
questions involved, the argument section of his brief only discusses ineffective
assistance of appellate counsel. Compare Appellant’s Brief at 5 with id. at
38-46.

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      For his final challenge, Appellant has failed to establish the third prong

of the ineffectiveness test -- prejudice. Root, 179 A.3d at 518. Assuming

arguendo that appellate counsel had raised the claim of Washington’s alleged

recantation of his trial testimony and that this Court had agreed that

Washington’s testimony should not have been presented at trial, the evidence

would still have been sufficient to convict Appellant.           Even without

Washington’s testimony, the Commonwealth presented the testimony of one

eyewitness to the murder (Gomez), of another witness who identified

Appellant leaving the scene of the murder (Colon), and of a third witness who

heard Appellant discuss killing Rodriguez and who accompanied him when he

purchased supplies for the murder (Velez).         Trial Court Opinion, filed

October 30, 2006, at 10-13, 15, 22.       In addition, these witnesses often

corroborated each other, such as when Velez stated that she saw Appellant

purchase gloves to commit the murder and Gomez testified that he saw

Appellant’s gloves after the murder. Id. at 12, 22. Furthermore, a police

sergeant testified that Appellant was arrested with the murder weapon in his

possession. N.T., 10/14/2005, at 135.

      Therefore, even if Washington’s testimony were excluded, all of this

other evidence combined would have been sufficient to convict Appellant of all

charges. Consequently, “there was not a reasonable probability of a different

outcome” if Washington’s testimony had been excluded. Root, 179 A.3d at

518. For that reason, Appellant is unable to establish the prejudice prong of




                                    - 16 -
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the ineffectiveness test, id., and, as he cannot satisfy one prong, the entire

ineffectiveness claim fails. Chmiel, 30 A.3d at 1128.

      For the reasons given above, we conclude that Appellant’s issues raised

on appeal are meritless. Having discerned no error of law, we affirm the order

below. Brown, 196 A.3d at 150.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/19




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