J. S53038/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :      IN THE SUPERIOR COURT OF
                                       :            PENNSYLVANIA
                 v.                    :
                                       :
ROBERT SPIVEY,                         :         No. 1330 EDA 2016
                                       :
                      Appellant        :


                Appeal from the PCRA Order, April 8, 2016,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0000470-2012


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:

     Robert Spivey appeals pro se from the April 8, 2016 order entered in

the Court of Common Pleas of Philadelphia County which dismissed, without

a hearing, his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     We previously set forth the following:

           The PCRA court set forth the following procedural
           history:

                       On October 24, 2011, [appellant]
                 was arrested and charged with Murder
                 and related offenses. On March 4, 2013,
                 [appellant] elected to be tried by a jury.
                 On March 8, 2013, the jury returned
                 guilty verdicts to First-Degree Murder
                 and Carrying a Firearm in Public in
                 Philadelphia.[][Footnote 1] Sentencing
                 was deferred until April 1, 2013, at which
                 time this Court imposed a mandatory
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               sentence of life imprisonment without
               parole for First-Degree Murder, with a
               concurrent sentence of one to two years
               for Carrying a Firearm in Public in
               Philadelphia.

                     [Footnote   1]   All  other
                     charges were nolle prossed.

                     On May 1, 2013, [appellant] filed a
               timely Notice of Appeal. On May 29,
               2013,     [appellant]  filed   a    timely
               [Pa.R.A.P.] 1925(b) statement. [. . .] On
               June 6, 2013, this Court filed its opinion
               finding [appellant’s] claims meritless.
               On February 21, 2014, [the] Superior
               Court affirmed the judgment of sentence.

                     On September 9, 2014, [appellant]
               timely filed a [PCRA] petition and motion
               to proceed pro se.       On October 23,
               2015, this Court held a Grazier hearing
               in which [appellant] requested counsel to
               be appointed.      On the same day,
               David Rudenstein, Esquire was appointed
               as PCRA counsel and entered his
               appearance.

                     On January 6, 2016, appointed
               PCRA counsel filed an amended petition.
               On January 22, 2016, private counsel,
               Mary Maran, Esquire entered her
               appearance.      Maran did not file a
               supplemental petition.     On March 4,
               2016, the Commonwealth filed a
               response to appointed PCRA counsel’s
               amended petition. On March 8, 2016,
               this Court found [appellant’s] claims
               meritless and filed a Notice of Intent to
               Dismiss under Pa.R.Crim.P. 907.       On
               March 28, 2016, in response to this
               Court’s 907 Notice, Maran filed a “Motion
               to Reconsider Denial of PCRA” on
               [appellant’s] behalf.


                                 -2-
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          PCRA court opinion, 4/8/16 at 1-2 (footnote 2
          omitted).

                The record reflects that on April 8, 2016, the
          PCRA court denied appellant’s motion to reconsider
          denial of PCRA and entered an order dismissing
          appellant’s PCRA petition.       On April 27, 2016,
          Attorney Maran filed a motion to withdraw
          representation and for appointment of counsel
          averring that she had been retained to represent
          appellant in connection with his PCRA petition only
          and that she had fulfilled that obligation. (Motion to
          withdraw representation and for appointment of
          counsel, 4/27/16; docket # 25.) In that motion,
          Attorney Maran also averred that “[p]ursuant to
          [appellant’s] request to exercise his right of appeal,
          counsel has filed a Notice of Appeal to the Superior
          Court and served all parties.” (Id.) Appellant’s
          notice of appeal was docketed on April 27, 2016.
          (Notice of appeal, 4/27/16; docket # 24.)

                 The record further demonstrates that on
          April 29,    2016,     the   PCRA      court   granted
          Attorney Maran’s motion to withdraw as counsel.
          The lower court docket reveals that on May 3, 2016,
          Attorney     Todd    Michael   Mosser     entered   his
          appearance on behalf of appellant, and an
          “appointment notice” was filed. The record further
          reflects that the PCRA court did not order appellant
          to file a concise statement of errors complained of on
          appeal pursuant to Pa.R.A.P. 1925(b), and the PCRA
          court did not file a Rule 1925(a) opinion.

                On August 24, 2016, appellant filed an
          application to proceed pro se on appeal with this
          court. On September 15, 2016, this court entered a
          per curiam order that directed the PCRA court “to
          conduct an on-the-record determination as to
          whether the [a]ppellant’s waiver of counsel is
          knowing, intelligent and voluntary, pursuant to
          Commonwealth v. Grazier, 713 A.2d 81 (Pa.
          1998), and to provide written notice of its
          determination to the Prothonotary of this Court


                                   -3-
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            within sixty (60) days.” (Order of court, 9/15/16
            (emphasis added).) On September 30, 2016, the
            PCRA court entered the following order, which it filed
            in this court on March 3, 2017:

                       AND NOW, this 30th day of
                  September, 2016, after consideration of
                  the Motion Proceed [sic] Pro Se by
                  [appellant,] it is ORDERED that the
                  Motion Proceed [sic] Pro Se is
                  GRANTED.

                  PCRA Hearing.        Defense Motion to
                  Proceed Pro Se is GRANTED. Previous
                  Defense Counsel Todd Mosser is Ordered
                  to Send [appellant] Any Documents in
                  Relation to this Case. [. . .] Atty: Todd
                  Mosser     is    Removed,      [appellant]
                  Pro Se[.]

            Order of court, 9/30/16.

Commonwealth v. Spivey, No. 1330 EDA 2016, unpublished memorandum

at 1-4 (Pa.Super. filed November 13, 2017).

      At that point, because the certified record before us did not contain the

September 30, 2016 Grazier hearing transcript, we remanded again with

instructions. (Order of court, 11/17/17.) On November 21, 2017, the trial

court filed a response order and attached a copy of the September 30, 2016

Grazier hearing transcript.

      With respect to waiver of counsel, we note that an appellant validly

waives his rule-based right to counsel for PCRA purposes when the waiver of

counsel colloquy demonstrates that the defendant understood “(1) his right

to be represented by counsel; (2) that if he waived this right, he will still be



                                       -4-
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bound by all normal procedural rules; and (3) that many rights and potential

claims may be permanently lost if not timely asserted.” Commonwealth v.

Robinson, 970 A.2d 455, 459 (Pa.Super. 2009) (citations omitted).

      Here, the September 30, 2016 colloquy demonstrates that appellant

acknowledged that he understood his right to be represented by counsel.

(Notes of testimony, 9/30/16 at 8-9.)        The colloquy also reveals that

appellant acknowledged that he understood that he would be bound by the

applicable procedural rules of court and that if he failed to timely assert his

rights, those rights may be permanently lost. (Id. at 9-10.) Therefore, the

colloquy demonstrates that appellant’s decision to proceed pro se on direct

appeal was a knowing, intelligent, and voluntary one. We will now review

appellant’s issues on the merits.

      Appellant raises the following issues for our review:

            [1.]   Did the PCRA court error [sic] by not allowing
                   newly retained counsel to amend appellant’s
                   [PCRA] petition where the petition was
                   defective as filed whereas the relief sought
                   could not have been obtained due to defect
                   [sic]?

            [2.]   Was appellant denied his rule based right to
                   counsel on his first PCRA petition where
                   counsel’s amended petition did not comport
                   with the contents of Pa.R.Crim.P. 902?

            [3.]   Trial counsel was ineffective for failing to
                   attack affidavit [sic] of probable cause which
                   omitted reference to victim and cousin having
                   weapon prejudicing appellant to the extent
                   that he would not have been charged with
                   first-degree murder.


                                     -5-
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            [4.]   Trial counsel was ineffective for failing to call
                   Tauheed Hood as a defense witness.

            [5.]   Trial counsel was ineffective for failing to call
                   appellant to testify on his own behalf.

            [6.]   Trial counsel was ineffective for failing to call
                   Sharona Council as a defense witness.

Appellant’s brief at 4 (capitalization omitted).

      We limit our review of a PCRA court’s decision to examining whether

the record supports the PCRA court’s findings of fact and whether its

conclusions of law are free from legal error.      Commonwealth v. Mason,

130 A.3d 601, 617 (Pa. 2015) (citations omitted). We view the PCRA court’s

findings and the evidence of record in a light most favorable to the prevailing

party. Id. To be entitled to PCRA relief, the petitioner bears the burden of

establishing, by a preponderance of the evidence, that his conviction or

sentence resulted from one or more of the circumstances enumerated in

42 Pa.C.S.A. § 9543(a)(2).

      Appellant first complains that the PCRA court erred when it denied

Attorney Mary Maran, who appellant’s family privately retained to represent

appellant as PCRA counsel, permission to amend the amended PCRA petition

that court-appointed PCRA counsel had filed on appellant’s behalf.        This

claim is not cognizable under the PCRA.        In this issue, appellant neither

attacks his sentence nor alleges his innocence with respect to his

convictions. Appellant advances no assertion that his conviction or sentence



                                      -6-
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resulted from a constitutional violation, ineffective assistance of counsel, an

unlawfully-induced plea, obstruction by government officials of his right to

appeal, an illegal sentence, or a lack of jurisdiction; and he makes no claim

that he has obtained newly discovered evidence. 42 Pa.C.S.A. § 9543(a)(2)

(setting forth requirements for PCRA relief eligibility).   Therefore, because

appellant’s first claim does not fall within the scope of the PCRA, it cannot be

reviewed under the PCRA.1


1 We note that the Pennsylvania Rules of Criminal Procedure provide that the
PCRA court “may grant leave to amend . . . a petition for post-conviction
collateral relief at any time,” and that amendment “shall be freely allowed to
achieve     substantial     justice.”   Pa.R.Crim.P. 905(A);      see     also
Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014). “[I]t is
clear from the rule’s text that leave to amend must be sought and obtained.”
Baumhammers, 92 A.3d at 730.

       Here, nothing in the certified record before us demonstrates that
Attorney Maran sought leave of court to amend the amended PCRA petition.
Although appellant attaches to his brief a copy of correspondence dated
April 25, 2016, that he received from Attorney Maran wherein she states
that the trial court “refused to allow me to amend [appointed PCRA counsel’s
amended] petition,” that correspondence is not part of the certified record
and could not be considered. “Any document which is not part of the official
certified record is considered to be non-existent, which deficiency may not
be remedied by inclusion in the reproduced record[,]” and “where a review
of an appellant’s claim may not be made because of such a defect in the
record, we may find the issue waived.” Eichman v. McKeon, 824 A.2d
305, 316 (Pa.Super. 2003), citing Pa.R.A.P. 1921. We further note that the
record reflects that in response to the PCRA court’s Rule 907 Notice,
Attorney Maran filed a “motion to reconsider denial of PCRA,” but failed to
raise appellant’s current claim that the PCRA court erred in prohibiting her
from filing an amended petition in that motion. Therefore, notwithstanding
the fact that appellant’s first claim is not cognizable under the PCRA, as well
as the fact that the record fails to demonstrate that Attorney Maran sought
leave to amend the amended PCRA petition, appellant’s failure to raise this
issue in the PCRA court would have resulted in waiver of the issue on appeal.
See Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa.Super. 2012)


                                     -7-
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     The remainder of appellant’s complaints allege ineffective assistance of

court-appointed PCRA counsel or trial counsel.

           Counsel is presumed effective, and in order to
           overcome that presumption a PCRA petitioner must
           plead and prove that: (1) the legal claim underlying
           the ineffectiveness claim has arguable merit;
           (2) counsel’s action or        inaction   lacked any
           reasonable basis designed to effectuate petitioner’s
           interest; and (3) counsel’s action or inaction resulted
           in prejudice to petitioner. With regard to reasonable
           basis, the PCRA court does not question whether
           there were other more logical courses of action
           which counsel could have pursued; rather, [the
           court] must examine whether counsel’s decisions
           had any reasonable basis.          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, a petitioner
           must show that there is a reasonable probability
           that, but for counsel’s actions or inactions, the result
           of the proceeding would have been different. Failure
           to establish any prong of the [] test will defeat an
           ineffectiveness claim.

Mason, 130 A.3d at 618 (internal quotation marks and citations omitted).

     With respect to ineffective assistance of PCRA counsel, appellant first

alleges that he was denied his rule-based right to counsel on his first PCRA

petition because appointed counsel’s amended PCRA petition requested an




(finding that a petitioner’s failure to raise a claim of ineffectiveness in
response to a Rule 907 Notice results in waiver of the claim on appeal); see
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).


                                    -8-
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evidentiary hearing, but appointed PCRA counsel failed to include a witness

certification pursuant to Pa.R.Crim.P. 902(a)(15).

      Our review of the record reveals that on March 8, 2016, the PCRA

court filed its notice of intent to dismiss appellant’s PCRA petition pursuant

to Pa.R.Crim.P. 907 (Rule 907 Notice).           Appellant then filed a timely

response to the PCRA court’s Rule 907 Notice. In that response, however,

appellant did not allege court-appointed PCRA counsel’s ineffectiveness for

failure to include a witness certification in the amended PCRA petition.

Consequently, appellant’s failure to raise this claim of ineffectiveness in his

response to the Rule 907 Notice results in waiver of this claim on appeal.

See Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa.Super. 2012)

(finding that “issues of PCRA counsel effectiveness must be raised in a serial

PCRA petition or in response to a notice of dismissal before the PCRA

court”); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”).

      Appellant   next   claims   that    court-appointed   PCRA   counsel   was

ineffective for failing to attack the affidavit of probable cause. The record

reflects that appellant failed to raise this claim of ineffectiveness in his

response to the Rule 907 Notice and, therefore, waives this claim on appeal.

See Ford, 44 A.3d at 1198; Pa.R.A.P. 302(a).

      In his final three claims, appellant alleges that trial counsel was

ineffective for failing to call Tauheed Hood, appellant, and Sharona Council



                                         -9-
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as defense witnesses.   The learned PCRA court resolved these issues as

follows:

                 [Appellant first] claims that trial counsel was
           ineffective when he failed present [sic] testimony
           from a known witnesses [sic], Tauheed Hood.
           [Appellant] alleges that Hood would have offered
           testimony supporting a justification claim in that he
           saw [Jermaine] Harvin with a gun before the
           shooting. [Appellant] argues that this testimony may
           have shown that [appellant] did not act with malice
           or specific intent to kill when he shot [the victim].

                 This claim lacks arguable merit as [appellant]
           overlooks the fact that he agreed with trial counsel
           not to call Hood to testify. It is well-settled that an
           ineffectiveness claim will fail for the fundamental
           reason that [appellant] agreed with trial counsel’s
           decision not to call the witnesses in question.
           Commonwealth v. Paddy, 800 A.2d 294 (Pa.
           2002); see also Commonwealth v. Rios, 920 A.2d
           790, 803 (Pa. 2007)[,] abrogated on other
           grounds by Commonwealth v. Tharp, 101 A.3d
           736 (Pa. 2014) (finding that an ineffectiveness claim
           for failure to call a witness will lack arguable merit
           where a petitioner made a knowing, intelligent, and
           voluntary decision at trial not to call the witness.).

                 Before voir dire, [appellant] was well aware
           that the Commonwealth would not call Hood as a
           witness and that it was his decision whether to call
           him.

                 TRIAL COUNSEL: We have not added
                 any names to the witness list. I’ve seen
                 [appellant]. Mr. Trimble from my office
                 has seen [appellant].        There are no
                 witnesses from my understanding that
                 need to be seen[,] interviewed[,] or
                 called. So I just want to make sure
                 that’s accurate because I didn’t add that
                 to the list. Is that correct, [appellant]?



                                   - 10 -
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               [APPELLANT]: Yes.

               THE COURT: So you know, [appellant],
               we did have a conversation before you
               were brought out that one of the names
               on the witness list, is it pronounced
               Tauheed Hood?

               [THE COMMONWEALTH]: Yes.

               THE COURT:        The Commonwealth
               doesn’t   intend  to    call  and   the
               Commonwealth doesn’t have to call all
               the witnesses, but there may be, your
               counsel suggested that you might want
               to call him. If that is true, you don’t
               have to make that decision today. You’ll
               have to make that decision tomorrow so
               we can make sure he’s here Thursday.

               [APPELLANT]: Yes.

               THE COURT: All right.

               [TRIAL COUNSEL]:    Do you understand
               that?

               [APPELLANT]: Yes.

               THE COURT:        So up until this point
               you’re satisfied with the representation
               of [trial counsel]?

               [APPELLANT]: Yes.

               THE COURT: [] You’re prepared for trial
               and you want to take your chances with
               the jury trial; is that correct?

               [APPELLANT]: Yes, Your Honor.

          N.T. 3/04/13 at [10]-12.    At the close of the
          Commonwealth’s   case,   this  Court   colloquied



                                - 11 -
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          [appellant] again during which he made a knowing
          and voluntary decision not to call Hood as a witness.

               [TRIAL COUNSEL]: Judge, prior to doing
               that, if I may, there was also a witness
               by the name of Tauheed Hood you’ve
               heard reference to. I think the Court has
               even heard reference to the statement.
               Some of what Mr. Hood says is beneficial
               to my client. Some of what Mr. Hood
               says is detrimental to my client.      In
               addition to that, Mr. Hood is going to be
               ornery, defensive[,] and non-cooperative
               both to the Commonwealth and myself.

               It is my opinion and I’ve given it to my
               client that this witness will not help our
               case[;] but I told him ultimately the
               decision whether to call Mr. Hood or not
               is his decision, ultimately. My client has
               agreed that for strategic reasons we’re
               not going to call Mr. Hood this morning.
               The defender who represented Mr. Hood
               was kind enough to meet with me. I met
               with Mr. Hood personally at the lunch
               break for about forty-five minutes,
               myself, the defender[,] and Mr. Trimble,
               and discussed what he may or may not
               say.      He appeared to be very
               uncooperative and apprehensive.        For
               those reasons, is it correct, [appellant],
               that you agree with my decision not to
               call Mr. Hood?

               [APPELLANT]: Yes.

               THE COURT: And [appellant], just so
               we’re clear, you know what your
               attorney may or may not argue. I’m sure
               he’s discussed that with you. But one of
               the issues that we were having is[,] and
               you know that I let your attorney explore
               certain issues because there was a
               suggestion,    a   suggestion    in   the


                                 - 12 -
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                statement from Mr. Hood -- I’m not
                saying it was positive or automatic -- but
                a suggestion possibly upon which your
                attorney could have specifically asked for
                a    justification   or   a   self-defense
                instruction, and I just want to make sure
                that [trial counsel] discussed that with
                you.

                [APPELLANT]: Yes.

          N.T. 3/07/13 at 179-81. Shortly thereafter, this
          Court made sure that [appellant] agreed with trial
          counsel’s decision not to call Hood to testify. Id. at
          183. This Court also confirmed with [appellant] that
          he had had sufficient information and consultation
          with his attorney to make that decision. Id.

                 In his response to this Court’s [907 Notice],
          [appellant] argues that because trial counsel
          indicated in his opening argument that this was a
          case of self-defense, counsel had no choice but to
          call Hood as a witness to comport with that
          theory.[Footnote 4]         This argument is not
          persuasive. First, [appellant] failed to provide any
          affidavits from Hood regarding his availability,
          willingness to testify, or the substance of his
          testimony. See Commonwealth v. Khalil, 806
          A.2d 415, 422 (Pa.Super. 2002) (holding that
          “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.”).

                [Footnote 4] A month after the murder,
                Hood gave a statement to police in which
                he stated that right before the murder,
                he saw [Jermaine] Harvin with a gun in
                his hand, peeking around an alleyway.
                He then saw [appellant] get out of a car
                and point a gun at Harvin and [the
                victim]. He claimed that Harvin began to
                run and then [appellant] fired his gun in
                the direction of Harvin and [the victim].


                                  - 13 -
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                See August 15, 2011 Investigation
                Interview Record of Tauheed Hood.

                The record also reflects that trial counsel had a
          reasonable basis for not calling Hood to testify. After
          counsel had interviewed Hood, trial counsel stated—
          on the record—that he believed some of Hood’s
          testimony would be detrimental to his client.
          Further, that Hood would be ornery, defensive, and
          non-cooperative. N.T. 3/07/13 at 179-81. As noted
          above, after a discussion with counsel, [appellant]
          agreed with this assessment.       Id.     Because the
          record is clear on the reasons why trial counsel did
          not present Hood as a witness, no evidentiary
          hearing is required.       See Commonwealth v.
          Eichinger, 108 A.3d 821 (Pa. Super. 2014) (stating
          that a PCRA court is only required to hold a hearing
          where the petition, or the Commonwealth’s answer,
          raises an issue of material fact.). Thus, no relief is
          warranted.

                [Appellant] also alleges that trial counsel was
          ineffective for failing to call [appellant’s] mother
          (Sharona Council) as a witness.[Footnote 5] In his
          response to this Court’s 907 Notice of Intent to
          Dismiss, [appellant] claims that trial counsel should
          have called his mother to the stand to comport with
          his theory of self-defense. This claim also lacks
          arguable merit. First, [appellant], again, failed to
          provide any affidavits from the witness regarding her
          availability, willingness to testify, or the substance of
          their testimony.       See Khalil, supra.        Second,
          [appellant] agreed with trial counsel on the record
          that no more witnesses needed to be seen,
          interviewed, or called. N.T. 3/04/13 at 1-12; see
          also Commonwealth v. Paddy, supra.                 Third,
          [appellant’s] mother did not actually witness the
          shooting. She told police that she heard what she
          thought were firecrackers and then went to a window
          to look outside. There, she saw “Tweetie,” whom
          she identified as [Jermaine] Harvin, pointing a gun at
          [appellant], but the shooting by then had
          ended.[Footnote 6]



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               [Footnote 5] In his amended petition,
               PCRA counsel (Rudenstein) reserved this
               issue, but did not brief it, claiming that
               he    did  not   have     the    necessary
               information.

               [Footnote 6] This information is from
               Ms. Counsel’s [sic] statement to police,
               given on July 20, 2011. See July 20,
               2011 Investigation Interview Record of
               Sharona Council.

                 Finally, her testimony would have been largely
          inculpatory, as it would have corroborated the bulk
          of Harvin’s testimony. For instance, Council told
          police that something must have been wrong with
          Harvin’s gun because when he pointed it at
          [appellant] he had “a really good aim at [him]” but
          did not fire. Harvin testified that after [appellant]
          shot [the victim], he (Harvin) pulled his gun and
          tried to shoot [appellant], but that the gun did not
          fire. N.T. 3/05/13 at 57-62. Council’s statement
          also corroborated Harvin’s testimony regarding the
          motive for the shooting. When asked by detectives
          why [appellant] and Harvin would be shooting at
          each other, Council answered “drugs.” N.T. 3/05/13
          at 3-86.      For these reasons, [appellant] is not
          entitled to relief.

                 In his response to this Court’s 907 Notice,
          [appellant] asserts that the argument that he was
          colloquied and agreed with trial counsel not to call
          his mother and Hood as witnesses is meritless.
          [Appellant] claims that his colloquy was not knowing,
          intelligent, and voluntary because it was “limited to
          the legal advice behind it.” This Court is baffled by
          this argument, as [appellant] cited no case law to
          support it. In any event, as noted above, the record
          clearly reflects that [appellant] made a knowing,
          intelligent, and voluntary decision not to present
          Hood as a witness. N.T. 3/07/13 at 1-12, 179-81,
          183. Trial counsel also had a reasonable basis for
          not presenting Hood, and [appellant]—well aware of
          Hood’s potential detrimental testimony—agreed with


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          trial counsel’s assessment. Id. at 1-12, 179-81,
          183. This Court also confirmed with [appellant] that
          he had had sufficient information and consultation
          with his attorney to make that decision.          Id.
          Further, as previously noted, [appellant] agreed with
          trial counsel on the record that no more witnesses
          needed to be seen, interviewed, or called, which
          would have included his mother and Hood. N.T.
          3/04/13 at 1-12.       [Appellant] is therefore not
          entitled to relief.

                Lastly, [appellant] claims that trial counsel was
          ineffective for failing to present him as a witness.
          [Appellant] argues that his testimony may have
          generated a justification jury instruction and/or an
          imperfect self-defense instruction, potentially leading
          to a verdict of involuntary manslaughter.

                 This claim not only lacks arguable merit[,] it is
          baseless. The decision to testify in one’s own behalf
          is ultimately to be made by the accused after full
          consultation with counsel.        Commonwealth v.
          Thomas, 783 A.2d 328, 334 (Pa. Super. 2001). To
          support an ineffectiveness claim for failing to call
          [appellant] to the stand, [appellant] “must
          demonstrate either that (1) counsel interfered with
          his client’s freedom to testify, or (2) counsel gave
          specific advice so unreasonable as to vitiate a
          knowing and intelligent decision by the client not to
          testify in his own behalf.” Id. [Appellant] fails to
          argue either prong of this ineffectiveness test. In
          any case, the record reflects that [appellant] was
          well informed that he had an absolute right to
          testify, and that the decision to testify was his, and
          his alone. The record also reflects that he knowingly
          and voluntarily waived this right.

                THE COURT: So you and your attorney
                have discussed the fact that you have
                the right to testify in this matter. Would I
                be correct?

                [APPELLANT]: Yes.



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               THE COURT: I want you to be clear
               that[,] as your attorney has told you,
               that you have an absolute right to testify
               in the case and the decision is yours and
               yours alone. Did he tell you that?

               [APPELLANT]: Yes.

               THE COURT:         So he just put on the
               record his decision or actually your
               decision not to call the witness Mr. Hood.
               He also discussed with you your right to
               testify; is that correct?

               [APPELLANT]: Yes, Your Honor.

                                   ...

               THE COURT: Now, you’ve discussed with
               your attorney the fact that you have an
               absolute right to testify. In other words,
               [trial counsel] can only advise you.
               Ultimately, you make that decision. Do
               you understand that?

               APPELLANT: Yes, Your Honor.

                                   ...

               THE COURT: [] You have the ultimate
               decision-making authority in that regard.

               [APPELLANT]: Yes.

               THE COURT: You’ve heard me advise
               the jury during my prior instructions that
               the [d]efendant has no obligation to
               testify and that the jury is not to make a
               negative or adverse inference against
               you if you do not testify. Do you
               remember that?

               [APPELLANT]: Yes.



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J. S53038/17


               THE COURT: [] Do you want me to
               re-instruct the jury on that?

               [APPELLANT]: Yes, Your Honor.

                                  ...

               THE COURT: [] Has anyone forced you
               to give up your right to testify?

               [APPELLANT]: No, Your Honor.

               THE COURT:       Has anyone threatened
               you?

               [APPELLANT]: No, Your Honor.

               THE COURT: Has anyone promised you
               something like you’ll get a not guilty if
               you don’t testify?

               [APPELLANT]: No, Your Honor.

               THE COURT:         So basically by your
               answer, what I’m concluding is that
               you’re making this decision of your own
               free will. Is that accurate?

               [APPELLANT]: Yes, Your Honor.

               THE COURT: Are you satisfied with the
               representation of your attorney?

               [APPELLANT]: Yes.

          N.T. 3/07/13 at 182-86.       [Appellant] cannot be
          deprived of his right to testify when he knowingly
          and    voluntarily     waived  that   right.    See
          Commonwealth v. O’Bidos, 849 A.2d 243, n.2
          (Pa.Super. 2004) (“appellant was not deprived of his
          fundamental right [to testify] because he knowingly
          and voluntarily waived his right to testify.”).
          Because this claim is devoid of merit, [appellant] is
          not entitled to relief.


                                 - 18 -
J. S53038/17



Trial court opinion, 4/8/16 at 6-18 (some brackets in original; ellipses and

emphasis in original). In viewing the PCRA court’s findings and the evidence

of record in the light most favorable to the Commonwealth as the prevailing

party, the record supports the PCRA court’s findings of fact and its

conclusions of law are free from legal error.          Therefore, appellant’s

remaining claims lack arguable merit and necessarily fail.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/1/18




                                    - 19 -
