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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ERNEST TRICE                             :
                                          :
                    Appellant             :   No. 2636 EDA 2018

               Appeal from the Order Entered August 9, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0006441-2010


BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                      FILED SEPTEMBER 16, 2019

      Ernest Trice (“Appellant”) appeals from the order dismissing his petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541–9546. After careful review, we affirm.

      On direct appeal, this Court summarized the facts underlying Appellant’s

conviction as follows:

      On February 22, 2010, [Appellant] used an accelerant to set fire
      to a residence at 101 East Collum Street in Philadelphia. The
      victim was inside the residence at the time of the fire, and he died
      from smoke inhalation. On March 11, 2010, police interviewed
      Appellant who admitted he had started the fire in an attempt to
      destroy the “stash” of a rival drug dealer. Appellant denied
      knowing that the victim was inside the residence when Appellant
      started the fire.

Commonwealth v. Trice, 100 A.3d 305, 2178 EDA 2012 (Pa. Super. filed

March 12, 2014) (unpublished memorandum).
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        On March 7, 2012, a jury found Appellant guilty of second-degree

murder, arson, and causing a catastrophe.1               Appellant was sentenced the

same day to life imprisonment without the possibility of parole for second-

degree murder, ten to twenty years of incarceration for the arson conviction,

and three and one-half years to seven years of incarceration for the causing

catastrophe conviction, to be served concurrently.             Appellant filed a post-

sentence motion, which the trial court denied. Appellant filed a timely appeal.

This Court, sua sponte, found that the imposition of a sentence for the crime

of arson, which was a predicate offense for Appellant’s murder conviction,

constituted a violation of the Double Jeopardy Clause and an illegal sentence.

Id. at 23–24.        Thus, on March 12, 2014, this Court vacated Appellant’s

sentence for arson, but affirmed the judgment of sentence in all other

respects. Id. at 24. Appellant filed a petition for allowance of appeal on April

10, 2014, which our Supreme Court denied on October 1, 2014.

        Appellant filed the instant, timely PCRA petition, his first, on May 1,

2015.     PCRA counsel was appointed on April 15, 2016, and he filed an

amended petition on June 25, 2016.             Therein, Appellant averred that he was

eligible for post-conviction relief due to the ineffectiveness of his trial counsel

and     sought   time    and    funds    to    conduct    discovery   relating   to   the

availability/existence of alibi witnesses Appellant believed were available to

____________________________________________


1   18 Pa.C.S. §§ 2502(b), 3301, and 3302, respectively.



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testify on his behalf. PCRA Petition, 6/25/16.2       The Commonwealth filed a

response and on December 27, 2017, the PCRA court advised Appellant that

it was going to deny his PCRA petition without a hearing on January 25, 2018,

pursuant to Pa.R.Crim.P. 907. Order, 12/27/17. Appellant filed a response,

and the PCRA court denied Appellant’s PCRA petition on August 9, 2018.

Order, 8/9/18. Appellant filed a timely notice of appeal on September 6, 2018.

Both the PCRA court and Appellant have complied with Pa.R.A.P. 1925.

         On appeal, Appellant presents the following question for our review,

verbatim:

    I.      Did the PCRA Court err when it dismissed without a hearing
            where the Defendant pled, and would have been able to prove,
            that he was entitled to PCRA relief?

Appellant’s Brief at 3.

         When reviewing the propriety of the denial of a PCRA petition, we
         apply the following standard and scope of review: “[A]n appellate
         court reviews the PCRA court’s findings to see if they are
         supported by the record and free from legal error. The court’s
         scope of review is limited to the findings of the PCRA court viewed
         in the light most favorable to the prevailing party.”
         Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa. Super.
         2009) (quoting Commonwealth v. Hammond, 953 A.2d 544,
         556 (Pa. Super. 2008) (citation omitted) ). “Because most PCRA
         appeals involve questions of fact and law, we employ a mixed
         standard of review. We defer to the PCRA court’s factual findings
         and credibility determinations supported by the record. In
         contrast, we review the PCRA court’s legal conclusions de
         novo.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,
         779 (Pa. Super. 2015) (citations omitted).
____________________________________________


2The PCRA court awarded Appellant $1,000.00 to investigate possible alibi
witnesses on July 12, 2016, but that investigation failed to produce any
possible alibi witnesses. N.T., 12/27/17, at 3, 9.

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Commonwealth v. Sarvey, 199 A.3d 436, 445–446 (Pa. Super. 2018). To

the extent Appellant argues that the PCRA court erred in failing to hold a

hearing on his PCRA petition, this Court notes that the PCRA court has

discretion to dismiss a petition without a hearing where “there are no genuine

issues of material fact, the petition is not entitled to post-conviction collateral

relief, and no legitimate purpose would be served by further proceedings.”

Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (citation

omitted).   In order to obtain a reversal of the court’s decision to dismiss

without a hearing, “an appellant must show that he or she raised a genuine

issue of fact which, if resolved in his favor, would have entitled him to relief

or that the court otherwise abused its discretion in denying a hearing.” Id.

      In support of his appeal, Appellant argues that his trial counsel was

ineffective for failing to make an investigation into possible witnesses that

Appellant avers “might provide a complete defense.” Appellant’s Brief at 8.

Specifically, Appellant posits trial counsel was “pointed in a direction” of a

possible witness who might have provided an alibi for Appellant, but counsel

failed to locate that person and failed to hire an investigator to locate the

possible witness. Id. Appellant points to a January 23, 2012 hearing wherein

trial counsel stated that he had spoken to a possible witness who then changed

her address or moved. Id. Trial counsel did not hire an investigator to locate

the potential witness after she changed her address. Id. Ultimately, Appellant

argues that because his trial counsel failed to hire an investigator to find the

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possible witness, Appellant was forced to withdraw his alibi defense and his

counsel was ineffective. Id. at 9.

        When reviewing a claim of ineffectiveness of counsel, it is well settled

that:

              [c]ounsel is presumed effective, and to rebut that
              presumption, the PCRA petitioner must demonstrate
              that counsel’s performance was deficient and that
              such deficiency prejudiced him. In Pennsylvania, we
              have refined the Strickland [v. Washington, 466
              U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
              ] performance and prejudice test into a three-part
              inquiry. Thus, to prove counsel ineffective, the
              petitioner must show that: (1) his underlying claim is
              of arguable merit; (2) counsel had no reasonable
              basis for his action or inaction; and (3) the petitioner
              suffered actual prejudice as a result. See
              [Commonwealth v.] Pierce [, 515 Pa. 153, 527
              A.2d 973 (1987) ]. If a petitioner fails to prove any of
              these prongs, his claim fails. Generally, counsel’s
              assistance is deemed constitutionally effective if he
              chose a particular course of conduct that had some
              reasonable basis designed to effectuate his client’s
              interests. Where matters of strategy and tactics are
              concerned, a finding that a chosen strategy lacked a
              reasonable basis is not warranted unless it can be
              concluded that an alternative not chosen offered a
              potential for success substantially greater than the
              course actually pursued. To demonstrate prejudice,
              the petitioner must show that there is a reasonable
              probability that, but for counsel’s unprofessional
              errors, the result of the proceedings would have been
              different. A reasonable probability is a probability that
              is sufficient to undermine confidence in the outcome
              of the proceeding.

        Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super.
        2014) (internal brackets and some internal citations omitted).

        Moreover, “[a] court is not required to analyze the elements of an
        ineffectiveness claim in any particular order of priority; instead, if

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      a claim fails under any necessary element of the ineffectiveness
      test, the court may proceed to that element first.”
      Commonwealth v. Tharp, 62 Pa. 673, 101 A.3d 736, 747
      (2014)(citation omitted).

Sarvey, 199 A.3d at 452. Further, in order to prove counsel ineffective for

failing to call or investigate a witness, “[an] appellant must demonstrate [1]

the names and whereabouts of the witnesses, [2] the substance of their

testimony, [3] how they would have appreciably strengthened his defense …

[and 4] that his trial counsel knew of the existence of the witnesses who

should have been called.” Commonwealth v. Hunter, 554 A.2d 550, 558

(Pa. Super. 1989) (citations omitted).

      As discussed above, compliance with Strickland requires Appellant to

prove that his underlying claim is of arguable merit, that his trial counsel had

no reasonable basis for his action, and that he suffered prejudice as a result.

Commonwealth v. Daniels, 104 A.3d 267, 281 (Pa. 2014). Appellant does

not engage in any meaningful discussion or analysis of the above factors, and

only references that counsel believes “prejudice is there” because the lack of

investigation “foreclosed on [Appellant] his opportunity to come forward with

witnesses at the earliest possible time.” Appellant’s Brief at 10.    Moreover,

Appellant cites only a single case in the argument section of his brief,

Commonwealth v. Stewart, 84 A.3d 701 (Pa. Super. 2013), as standing for

the proposition that counsel can be found ineffective for failing to interview an

alibi witness and that an appellant is not required to demonstrate that the




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witness would be found credible by a jury to establish prejudice. 3 Appellant’s

Brief at 10.

       Preliminarily, we note that Appellant does not provide the names or any

other additional information about the alleged witnesses who his trial counsel

failed to investigate or locate. This is despite the fact that the PCRA court

provided Appellant with the funds to hire a private investigator to locate any

purported witnesses, alibi or otherwise. Trial Court Opinion, 12/13/18, at 5.

Indeed, Appellant references only an unnamed witness and alleges that his

trial counsel was ineffective for failing to locate this unnamed witness or send

a detective to locate the individual. Appellant’s Brief at 8.4     After reviewing

the record, this Court is unable to determine any information about the alleged

alibi witness, beyond her name, Ms. Mathis, and that Appellant intended to

present her as an alibi witness. N.T., 2/23/12, at 7.        “Where a defendant



____________________________________________


3 Stewart is factually distinguishable and does not provide support for the
instant appeal. In Stewart, the appellee argued that his trial counsel was
ineffective for failing to interview and present the alibi testimony of his fiancée.
Specifically, the appellee provided the court with the name, location, and
substance of his alibi witness’s testimony. Stewart, 84 A.3d at 705.
Moreover, the witness was present in the courtroom for the appellee’s trial.
Id. Finally, the record reflected that the appellee provided his trial counsel
with the witness’s phone number and address prior to trial. Id.

4 In making this argument, Appellant cites to notes of testimony dated January
23, 2012. The certified record does not contain notes of testimony from that
date. However, after review, we believe Appellant intended to cite the notes
of testimony dated February 23, 2012, which appear to contain the
information Appellant referenced in his brief.


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claims that counsel was ineffective for failing to call a particular witness, we

require proof of that witness’s availability to testify, as well as an adequate

assertion that the substance of the purported testimony would make a

difference in the case.”   Commonwealth v. Clark, 961 A.2d 80, 90 (Pa.

2008). To the extent Appellant is arguing that the trial counsel was ineffective

for failing to call Ms. Mathis, Appellant has failed to provide any information

about her location, the substance of her testimony, or even identify her by

name in his brief submitted to this Court.

      Moreover, a review of the record makes clear that Appellant is unable

to prove, inter alia, that he was prejudiced by counsel’s failure to investigate

or call the alleged witnesses.   In order to prove prejudice, Appellant must

show that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012) (quoting Strickland,

466 U.S. at 694)). “A reasonable probability is a probability that is sufficient

to undermine confidence in the outcome of the proceeding.” Id.        Although

failing to conduct an investigation can be per se ineffectiveness, “[a] showing

of prejudice … is still required. Stewart, 84 A.3d at 712.

      In the instant case, Appellant confessed to setting fire to the residence

that ultimately killed the victim. N.T., 3/5/12, at 37–41. He was informed of

his rights prior to police questioning pursuant to Miranda v. Arizona, 384

U.S. 436 (1966), and he signed a paper memorializing the same before he


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gave his statement to Detective Phillip Nordo, one of the detectives assigned

to the case. N.T., 3/5/12, at 30–33. Finally, Detective Nordo gave Appellant

a copy of the statement after Appellant finished speaking with Detective Nordo

and Appellant signed it, representing that what he told the detective was

accurately reflected in the written statement. Id. at 47. Additionally, the

Commonwealth presented the testimony of Ira Young, an individual who was

homeless and stayed at 101 East Collum Street at the time Appellant started

the fire. N.T., 3/6/12, at 6–8. Mr. Young testified that he lived on the first

floor of the Collum Street home, and the victim stayed on the second floor.

Id. at 11. Mr. Young knew and recognized Appellant “from the streets.”    Id.

at 12. Mr. Young testified that on the day of the fire, he witnessed Appellant

running away from the fire, holding a container, and that Appellant ran past

him and told him “he’d gotten his revenge.” Id. at 15. Given the fact that

Appellant confessed to starting the fire and the additional evidence presented

by the Commonwealth, Appellant is unable to show that he was prejudiced by

his trial counsel’s failure to call one or more unidentified witnesses.

      Finally, we note that even if Appellant had been able to show some sort

of prejudice based on trial counsel’s failure to investigate or call certain

witnesses, he would be unable to show that counsel lacked a reasonable basis

for that decision.   Indeed, the record in the instant case is replete with

instances of Appellant’s attempt to interfere with possible witnesses. During

a pretrial sidebar/conference between Appellant’s trial counsel and the


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prosecutor, trial counsel informed the trial court that he was aware of the

existence of audio tapes of prison telephone conversations between Appellant

and an individual, Alpha Omega Johnson.         Allegedly, Appellant told Mr.

Johnson that he needed to ensure any possible alibi witnesses spoke with

Appellant before speaking with his trial counsel. N.T., 2/22/12 (part 2), at

156.   Further, Appellant and another individual were discussing potential

problems with another possible alibi witness, Ebony Matthews, who is the

mother of Appellant’s children, and Appellant made threatening statements

toward Ms. Matthews and her current boyfriend. Id. at 157-158. During that

sidebar/conference, the Commonwealth made it clear that if trial counsel put

Ms. Matthews on the stand, the Commonwealth would have utilized the tapes

to impeach her testimony. Id. at 158, 159.

       Appellant has neither identified a single witness that his trial counsel

failed to call or investigate nor established any prejudice arising from this

alleged failure. Therefore, we ascertain no abuse of discretion in the PCRA

court’s conclusion that Appellant’s PCRA should be dismissed without a

hearing.

       Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/19




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