J.S52010/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
MARVIN PRICE,                               :
                                            :
                          Appellant         :     No. 936 EDA 2013


                 Appeal from the PCRA Order February 22, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0503251-2004

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 24, 2014

        Appellant, Marvin Price, appeals from the order entered in the

Philadelphia County Court of Common Pleas denying his first Post Conviction

Relief Act1 (“PCRA”) petition.    Appellant asserts that the PCRA court erred

when denying his ineffective assistance of counsel (“IAC”) claims related to

the failures of prior counsel to (1) move for a mistrial or request curative

instructions when the prosecutor used a religious theme in summation to the

jury, (2) call as an impeachment witness the prosecutor who represented




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J. S52010/14


the Commonwealth at trial, (3) object to the prosecutor’s knowing

presentation of false testimony of Officer Dawn Benton. We affirm.

     The direct appeal panel of this Court, quoting the trial court opinion,

summarized the facts and procedural history of this case as follows:

               On November 7, 2003, Troy Jones [(“Victim”)] was
        shot and killed. Before he died, however, he made various
        statements to his family and police identifying [Appellant],
        Marvin Price, as his killer. Approximately fourteen or
        fifteen months before this incident, [Appellant] and
        [Victim] had gotten in an argument during which [Victim]
        shot [Appellant].      When police arrived on scene,
        [Appellant] said he did not want their help and that he
        would “take care” of it himself. [Appellant] reiterated this
        sentiment when detectives served him with a subpoena as
        the case was approaching its third preliminary hearing
        listing. That case was subsequently dismissed because
        [Appellant] did not appear for court to testify against
        [Victim].

              As to the incident at bar, on November 7, 2003, at
        around 10:00 p.m., [Victim] went to his parents’ house . .
        . . He stayed for approximately one hour, and at around
        11:00 p.m. when he walked out of his parents’ house, he
        was shot. [Victim’s] nephew, Darnell Gantt, was the first
        of his family outside, followed by Dorothy and Richard
        Jones, [Victim’s] parents. [Victim] said to Mr. Gantt,
        “Marvin shot me.” He said to his mother, Dorothy, and his
        father, Richard, “I’m shot. Marvin shot me.”

              On his way to the hospital, [Victim] asked Police
        Officer and trained paramedic Shane Gaghan if he was
        going to die. Officer Gaghan told him that he didn’t look
        good, but that the medical personnel would do all they
        could. Once inside the hospital, then-Inspector [Frankie2]

2
  Sergeant Frank W. Hayes referred to Inspector Heyward as Frankie. See
N.T., 4/21/05, at 35. Our review of the record indicates that the Inspector
did not testify at trial.




                                    -2-
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           Heyward, in the presence of Sergeant [Frank W.] Hayes,
           asked [Victim] who shot him. [Victim] said that it was
           Marvin Price of 16th and Chelten. Following this incident,
           [Appellant] was not around his normal neighborhood, so
           the homicide fugitive squad was searching for him.
           [Appellant] was apprehended four months after the
           incident.

                                 *    *    *

                  On April 21, 2005, [Appellant’s] motion to suppress
           statement made by [Victim] to various civilians as well as
           to police was heard . . . . The motion was initially decided,
           but reopened upon Commonwealth request.              Thus, a
           second hearing on the motion was held on April 25, 2004 .
           . . . The court ruled as follows: that the statement of
           [Victim] to Darnell Gantt was admissible in part as an
           excited utterance, that the statement of [Victim] to
           Inspector Heyward regarding [Appellant’s] address was
           admissible, that the statements to Richard Jones and the
           second part of the statement to Darnell Gantt[3] were
           inadmissible, that the statements to Dorothy Jones were
           admissible . . . to show [Victim’s] state of mind. The
           Commonwealth appealed the pre-trial rulings regarding the
           exclusion of the declarations of [Appellant’s] address and
           the testimony from Richard Jones. In a [memorandum 4]
           filed September 28, 2006, the Superior Court reversed
           those pre-trial rulings and held that all of [Victim’s]

3
    The court ruled as follows as to Darnell Gantt’s statement:

              With respect to Darnell Gantt, his testimony that
           [Victim] said, “I’m shot, Don, they shot me,” [ ] “Marvin
           shot me,” the [c]ourt finds that portion of the statement of
           [Victim] to be an excited utterance. Anything further
           contained in the statement said by or allegedly said by
           [Victim] the [c]ourt finds not admissible as an excited
           utterance.

N.T., 4/21/05, at 78-79.
4
  Commonwealth v. Price, 1250 EDA 2005 (unpublished memorandum)
(Pa. Super. Sept. 28, 2006).



                                       -3-
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          declarations qualified as both excited utterances and
          dying declarations.

                [Appellant] was tried by a jury over the course of
          three days, beginning January 15, 2008 and ending
          January 18, 2008. The jury found [Appellant] guilty of:
          Murder of the First Degree and Possession of an
          Instrument of Crime. Sentencing was deferred in order for
          a Pre-Sentence and Mental Health Evaluation to be
          completed.

                [Appellant] was sentenced to life imprisonment for
          the murder and two and one half to five years (2½-5)
          imprisonment for the possession of an instrument of crime
          to run concurrent.

Commonwealth v. Price, 1379 EDA 2008 (unpublished memorandum at 1-

3) (Pa. Super. Dec. 21, 2009) (citations to record omitted and emphasis

added).

     This Court affirmed the judgment of sentence.           Id. at 1.    The

Pennsylvania    Supreme   Court   denied   allocator   on   June   22,   2010.

Commonwealth v. Price, 997 A.2d 1177 (Pa. 2010).

     Appellant filed the underlying pro se PCRA petition on March 28,

2011.5    Counsel was appointed and filed an amended PCRA petition on


5
  Appellant’s judgment of sentence became final on September 20, 2010,
ninety days after the Pennsylvania Supreme Court denied his petition for
allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing “a judgment
becomes final at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review[ ]”).
Appellant had until September 20, 2011, to file his PCRA petition. See 42
Pa.C.S. § 9545(b)(1) (providing PCRA petition must be filed within one year
of date judgment becomes final). Because he filed his PCRA petition on
March 28, 2011, his petition is timely.



                                    -4-
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November 4, 2011. The PCRA court notified Appellant of its intent to dismiss

the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. The court

denied the PCRA petition on February 22, 2013. This timely appeal followed.

Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors

complained of on appeal and the PCRA court filed a responsive opinion.

      Appellant raises the following issues for our review:

         I. Was trial counsel ineffective for failing to move for a
         mistrial or curative instructions when the prosecutor used
         a religious theme to support the statements of [Victim]?

         II. Was trial counsel ineffective because he failed to:

         A. Try to call the prosecutor to the witness stand to
         impeach Officer Benton’s testimony that she had told her
         of the Marvin shot me statement at an earlier time or
         times.

         B. Try to secure a stipulation from the prosecutor that if
         called to testify under oath she would have told the jury
         that Officer Benton never told her of the Marvin shot me
         statement.

         C. Try to have the prosecutor correct the false testimony
         given by Officer Benton by telling the jury Officer Benton
         never mentioned the Marvin shot me statement to her.

         III. Were trial and appellate counsel ineffective for failing
         to raise the prosecutor’s knowing use of false testimony
         when Officer Benton testified she had told the prosecutor
         on a prior occasion that she heard [Victim] say “Marvin
         shot me?”

Appellant’s Brief at 11.6


6
  We note that Appellant raised a fourth issue in his Rule 1925(b) statement,
viz., Appellant’s “conviction which is not based on any sworn testimony



                                     -5-
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      First, Appellant contends trial counsel was ineffective for failing to

move for a mistrial or curative instruction when the prosecutor used a

religious theme to support the statements of [Victim]. Appellant objects to

the following statement during the prosecutor’s summation:

         Ladies and gentlemen, the words of [Victim] are the most
         powerful and compelling and reliable evidence that you can
         have. You know intuitively that a man’s dying words are
         crucial and reliable and powerful, you know it intuitively,
         because who would to go meet their maker with a lie upon
         their lips, who, uttering the last words they would say,
         would say anything other than the truth. You know that,
         but the law recognizes it too, the law recognizes it too, [ ]
         the law treats a man’s dying words with the most utmost
         respect and treats them preciously because the law knows
         that─

N.T., 1/18/08, at 69-70.    Appellant’s counsel objected without stating the

basis for the objection and the court responded: “It’s argument and I’ll give

instructions on the law, the [c]ourt will give instructions.” Id. at 70.

      Appellant argues that trial counsel was ineffective in failing to move for

a mistrial or curative instruction based upon the prohibition against using

religious beliefs to bolster the credibility of a witness. He cites 42 Pa.C.S. §

5902(b) and Commonwealth v. Chambers, 599 A.2d 630 (Pa. 1991). We

find no relief is due.



violates the state and federal constitutions.” Appellant’s Pa.R.A.P. 1925(b)
Statement, 8/14/13, at 2. This issue is not identified in the statement of
questions presented section of his brief or developed in the argument
section; thus, it is abandoned on appeal. See Commonwealth v. Dunphy,
20 A.3d 1215, 1218-19 (Pa. Super. 2011).




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             In reviewing the propriety of an order denying PCRA
         relief, this Court is limited to examining whether the
         evidence of record supports the determination of the
         PCRA court, and whether the ruling is free of legal error.
         Great deference is given to the findings of the PCRA court,
         which may be disturbed only when they have no support in
         the certified record.

Commonwealth v. Perry, 959 A.2d 932, 934-35 (Pa. Super. 2008)

(citations omitted).

             When considering an allegation of ineffective assistance
         of counsel, counsel is presumed to have provided effective
         representation unless the PCRA petitioner pleads and
         proves that: (1) the underlying claim is of arguable merit;
         (2) counsel had no reasonable basis for his or her conduct;
         and (3) Appellant was prejudiced by counsel’s action or
         omission. To demonstrate prejudice, an appellant must
         prove that a reasonable probability of acquittal existed but
         for the action or omission of trial counsel. A claim of
         ineffective assistance of counsel will fail if the petitioner
         does not meet any of the three prongs. Further, a PCRA
         petitioner must exhibit a concerted effort to develop his
         ineffectiveness claim and may not rely on boilerplate
         allegations of ineffectiveness.

Id. at 936 (punctuation marks and citations omitted).

             “Our standard of review for a claim of prosecutorial
         misconduct is limited to whether the trial court abused its
         discretion.” “In considering this claim, our attention is
         focused on whether the defendant was deprived of a fair
         trial, not a perfect one.”

            [A] prosecutor’s arguments to the jury are
            [generally] not a basis for the granting of a new trial
            unless the unavoidable effect of such comments
            would be to prejudice 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.




                                     -7-
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            A prosecutor must have reasonable latitude in fairly
            presenting a case to the jury and must be free to
            present [his] arguments with logical force and vigor.
            The prosecutor is also permitted to respond to
            defense arguments. Finally, in order to evaluate
            whether the comments were improper, we do not
            look at the comments in a vacuum; rather we must
            look at them in the context in which they were
            made.

Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa. Super. 2011)

(citations omitted). “There is no prohibition against a prosecutor discussing

applicable law in his closing argument, as long as he states the law clearly

and accurately.”    Commonwealth v. Rios, 684 A.2d 1025, 1034 (Pa.

1996).

      Our rules of evidence provide the following exception to the rule

against hearsay:

         (b) The Exceptions. The following are not excluded by
         the rule against hearsay if the declarant is unavailable as a
         witness:

                                  *    *    *

         Statement Under Belief of Imminent Death. A
         statement that the declarant, while believing the
         declarant's death to be imminent, made about its cause or
         circumstances.

Pa.R.Evid. 804(b)(2).    In Commonwealth v. Smith, 314 A.2d 224 (Pa.

1974), our Pennsylvania Supreme Court opined: “The reliability of a dying

declaration is provided not by an oath, nor by cross-examination; rather, its

admissibility is based on the premise that no one ‘who is immediately going

into the presence of his Maker will do so with a lie upon his lips.’” Id. at 225


                                      -8-
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(citation omitted); accord Commonwealth v. Riggins, 386 A.2d 520, 523

(Pa. 1978) (citing Smith, supra.); Commonwealth v. Griffin, 684 A.2d

589, 592 n.4 (Pa. Super. 1996) (citing Smith, supra.).

     The PCRA court opined:

           Closing argument is a critical stage in a trial. A lawyer
        should not be expected to discuss the facts in a vacuum,
        however; it is generally necessary to consider them in light
        of the rules of law which a case involves. Thus a
        prosecutor may discuss applicable law during closing
        argument, so long as he or she does not misstate the law
        or state it in a manner calculated to confuse the jury.

            [Appellant’s] attack on the prosecutor’s “religious
        theme” is without merit because a quick review of the
        summation shows that the prosecutor’s         merely [sic]
        referenced the law relevant to [Victim’s] dying
        declarations.[7] Dying declarations an of [sic] unavailable
        witness are admissible as an exception to the hearsay rule
        when the declarant, under the belief of imminent death,
        comments on the circumstances of what he or she believes
        will be imminent death. Various rationales have been
        offered for this exception, with the most commonly cited
        reason being that “no one who is immediately going into
        the presence of his Maker will do so with a lie upon his
        lips.” The prosecutor accurately referenced this rationale
        in her closing argument.

7
  We note that this Court in a prior appeal, in ruling that Victim’s dying
declarations were admissible, opined:

            As stated by the Supreme Court, the reliability of a
        dying declaration is based on the premise that “no one
        who is immediately going into the presence of his Maker
        will do so with a lie upon his lips.” Commonwealth v.
        Griffin, 684 A.2d 589, 592 n.4 (Pa. Super. 1996) (quoting
        Commonwealth v. Smith, 314 A.2d 224, 225 (Pa. 1974).

Price, 1250 EDA 2005 at 5-6.




                                   -9-
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PCRA Ct. Op., 9/5/13, at 10-11 (citations omitted). We agree.

      Appellant’s claims of ineffectiveness of trial counsel8 based upon

Section 5902(b) is unavailing. Section 5902(b) provides: “No witness shall

be questioned, in any judicial proceeding, concerning his religious belief;

nor shall any evidence be heard upon the subject, for the purpose of

affecting either his competency or credibility.”        42 Pa.C.S. § 5902(b)

(emphases added). In the case sub judice, the prosecutor did not question

any witness about his religious beliefs. Appellant cannot rely on this section

to challenge the Commonwealth’s closing argument.

      Similarly, Appellant cites Chambers in support of his claim that trial

counsel was ineffective for failing to request a mistrial or curative instruction

based upon the prosecutor’s summation.         In Chambers, “the prosecutor

stated, ‘[the defendant] has taken a life.’      As the Bible says, ‘and the

murderer shall be put to death.’”       Chambers, 599 A.2d at 643.           Our

Pennsylvania Supreme Court opined: “We now admonish all prosecutors that

8
  Appellant also avers in the argument section of his brief that appellate
counsel was ineffective. Appellant did not raise the issue of appellate
counsel’s ineffectiveness in his Rule 1925(b) statement.                   See
Commonwealth v. Dozier, 99 A.3d 106, 110 (Pa. Super. 2014) (citing
Pa.R.A.P. 1925(b)(4)(vii) (issues not included in Rule 1925(b) statement are
waived). Nonetheless, given our resolution of the issues with regard to trial
counsel, his claim of appellate counsel’s ineffectiveness would fail. “[I]f the
petitioner cannot prove the underlying claim of trial counsel ineffectiveness,
then petitioner’s derivative claim of appellate counsel ineffectiveness of
necessity must fail.” Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa.
2011).




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reliance in any manner upon the Bible or any other religious writing in

support of the imposition of a penalty of death is reversible error per se

and may subject violators to disciplinary action.”       Id. at 644 (emphasis

added). The holding in Chambers is inapplicable in the instant case.

     Appellant   has   not   shown    that    the   unavoidable   effect   of   the

prosecutor’s comment prejudiced the jurors, forming in their minds a bias

such that they could not weigh the evidence.         See Solomon, 25 A.3d at

383. We agree with the PCRA court that the prosecutor accurately discussed

the applicable law in closing arguments.        See Rios, 684 A.2d at 1034.

Because this claim is without merit, trial counsel cannot be deemed

ineffective. See Perry, 959 A.2d at 935.

     Next, we address issues II.A and III together because they are

interrelated. Appellant contends that trial counsel 9 was ineffective because

he failed to “try to call the prosecutor to the witness stand to impeach

Officer Benton’s testimony that she had told [the prosecutor] of the Marvin

shot me statement at an earlier time or times.”         Appellant’s Brief at 15.

Appellant contends that if the prosecutor had impeached Officer Benton’s

testimony, “[t]his could have easily altered the outcome and is substantial


9
  In issue III of the statement of the questions presented, Appellant raises
the ineffectiveness of appellate counsel. Appellant’s Brief at 11. However,
in the argument section of his brief, Appellant does not address appellate
counsel’s ineffectiveness.    Issues raised in the statement of questions
involved but not addressed in the argument section of the brief are waived.
Commonwealth v. Jones, 815 A.2d 598, 604 n.3 (Pa. 2002).



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prejudice.” Id. at 17. Appellant avers that trial counsel was also ineffective

because he failed to raise the prosecutor’s presentation of false testimony,

viz., that Officer Benton informed the prosecutor that when she was on the

porch she heard Victim say, “Marvin shot me.”    Id. at 18.

            Where a defendant 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. Generally, we require a defendant to demonstrate
         that:

            (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.

Commonwealth v. Clark, 961 A.2d 80, 90 (Pa. 2008) (citation omitted and

emphases added). “Furthermore, we note that we are bound by the PCRA

court’s credibility determinations where there is record support for those

determinations.”   Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa.

2004).

      At trial, Victim’s mother, father, and nephew, Officer Gordon Andrew,

and Sergeant Frank Hayes testified about Victim’s dying declarations. Mrs.

Jones, Victim’s mother, testified to the following; Her grandson, Darnell




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Gantt10 was on the porch with Victim and yelled for her to come out on the

porch. N.T., 1/15/08, at 64. When she went to the porch she told Victim

not to move. Id. She testified, “All [Victim] kept saying, because we kept

talking to him, and he kept talking to Don-Don, and he told Don-Don he was

shot, and he said to Don-Don, he said, Marvin shot me.” Id. “I was there, I

had the phone in my hand, I was standing in the door . . . and he kept

saying it over and over, he said, Marvin, Marvin Price shot me, he kept

saying it over and over.” Id. at 65.      She heard her husband and Darnell

talking to Victim and he kept saying Marvin shot me. Id. at 66.

      Mr. Jones, Victim’s father, testified at trial to the following; Victim was

at Mr. Jones’ house the night he was killed. Id. at 97-98. Mr. Jones was

upstairs in his bedroom when he heard three shots.            Id. at 102.    His

grandson called him to come downstairs because Victim was lying on the

porch. Id. He stated that when he went out to the porch, Victim “was alert,

I said . . . what is the matter, he said, Dad, I’ve been shot, he said, Marvin

Price shot me.” Id.

      Mr. Gantt, Victim’s nephew, testified at trial to the following; Mr. Gantt

had been in a car accident and was staying at the Jones’ house following his

release from the hospital. Id. at 155-56. Victim came to visit him. Id. at

156-57. When Victim left the house, Mr. Gantt heard “boom, boom, boom,

10
  We note that Darnell was also referred to as Don-Don. N.T., 1/15/08, at
64.




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boom.” Id. at 159. When Mr. Gantt opened the door, Victim fell on him and

said he had been shot. Id. Victim said “Marvin, Marvin shot me . . . .” Id.

at 160.

      Officer Andrew testified at trial to the following; On the night of the

murder, he received a radio call to go to Jones’ residence.       Id. at 198.

When he arrived, he saw a man lying on the ground.         Id.   A few people

were on the porch and they told him Victim had been shot.        Id.     Victim’s

nephew told him that Marv did it and where Marv lived, and the officer knew

it was Marvin Price’s address. Id. at 199-200.

      Sergeant Hayes testified that he went to the hospital where Victim was

to ensure that there were no problems. N.T., 1/16/08, at 24. He was met

at the hospital by Chief Inspector Frankie Heyward. Id. at 23. He and the

Chief Inspector went into the trauma room to see Victim.           Id. at 25.

Sergeant Hayes testified:

          . . . Chief Inspector Heyward then at that time bent over
          [Victim] and asked him if he knew who shot him, [Victim]
          replied “Marvin shot me.” At that time, I’m standing right
          next to the chief and I’m bending over, I’m listening to the
          entire conversation, after [Victim] replied that Marvin shot
          him, then Chief Inspector Heyward said, “Marvin Price,”
          and [Victim] said, “yes.”

Id.

      Officer Benton was cross-examined by defense counsel at trial.




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           [Defense counsel]: If I understand things correctly, Officer
           [Benton11], you came to the District Attorney’s Office a
           couple years ago, 2005, in preparation for testifying in the
           [instant case]?

           A: Correct. . . .

           Q: And the crime scene log clearly depicted you were up
           on the porch that night; correct?

           A: Correct.

           Q: And you’re telling us or are you telling us that you
           didn’t bring up to anybody in preparation for going to court
           in this case that you heard [Victim] say the word “Marvin”?

           A: I can’t recall.

           Q: You can’t recall?

           A: No, I can’t.

           Q: Well, isn’t that an important point, isn’t that something
           you would bring up to somebody if that’s what you heard?

           A: Yes.

           Q: And you’re telling us today you can’t recall if you told
           anybody that ever?

           A: I can’t recall, I’m not going to lie, I can’t recall.

           Q: Did you ever prepare a document memorializing in any
           way, shape or form─

           A: Yes, I have.

           Q: ─that you heard [Victim] say the word “Marvin”?

           A: Oh, no, I didn’t put it on paper, no.


11
     Counsel inadvertently referred to Officer Benton as Officer Kennedy.



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        Q: Did you tell a superior in the police department that you
        heard [Victim] say “Marvin”?

        A: Yes.

        Q: Who?

        A: My superior.

        Q: Which of your superiors?

        A: My superior at the time was Sergeant [George]
        Holcombe.[12]

        Q:. . . Did you tell anyone in the District Attorney’s Office
        that?

        A: I can’t recall.

        Q: How about in preparation of testifying            in   this
        proceeding, you prepared to testify, did you not?

        A: Yes.

        Q: Did you tell anyone, did you meet with [Assistant
        District Attorney Jennifer] Selber?

        A: We talked about it.

                                 *     *      *

        Q: When was that?

        A: A few months ago.

                                 *     *      *

        Q: You told her that you heard [Victim] say “Marvin” on
        the porch?


12
  The record indicates that he was a lieutenant at the time of trial. N.T.,
1/16/08, at 56.



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        A: We talked about it.

                                 *     *      *

        Q: Did you tell Ms. Selber? You’re under oath.

        A: I told her that I was on the porch.

                                 *     *      *

        Q: Did you tell her that while you were on the porch you
        heard [Victim] say the word “Marvin”?

        A: Yes.

N.T., 1/17/08, at 33, 34-35, 36, 37.

     Defense counsel made a motion for a mistrial, out of the presence of

the jury, arguing that the substance of Officer Benton’s testimony was not

disclosed to the defense prior to trial.      Id. at 59.   The Commonwealth,

Attorney Selber, responded as follows:

        . . . I did not know that Officer Benton had heard that.
        Had I known, I would have used it because it’s helpful
        evidence to me. I would have told [defense counsel] back
        in 2005, she was on the witness list already and on the
        crime scene log for that, and I would have put her on at
        the motion when we did the dying declaration because she
        would have been helpful to the Commonwealth’s case,
        especially in light of the fact that Officer Andrew didn’t
        hear it. . . . And although she testified that she
        thinks a couple of years ago she told me, whether
        she did or not, I can’t say, I can only say that I don’t
        remember her telling me . . . .

                                 *     *      *

          And the bottom line is she has been available, she’s
        been on the witness list, it’s been known to the defense as
        well as the Commonwealth that she was at the first scene,
        and what I told Your Honor before is absolutely the truth,


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        which is the first time I heard from her and registered
        that she heard that from [Victim] was out in the
        anteroom, which is what I asked her, if she
        remembers saying something about it, which I think
        she said she thought she did but wasn’t sure, I’m
        not disputing that, I’m just saying that we were not
        aware of it . . . .

Id. at 61, 62-63 (emphases added).

     The trial court opined:

           [Appellant] has not─and cannot─show that [trial]
        counsel’s failure to use the prosecutor as an impeachment
        witness caused him prejudice. Four witnesses─Darnell
        Gantt, Dorothy Jones, Richard Jones, and Sergeant Frank
        Hayes─testified, under oath, that they heard [Victim] say,
        “Marvin shot me” before Officer Benton provided
        cumulative testimony regarding the victim’s dying
        declaration. Moreover, trial counsel aggressively cross-
        examined Officer Benton. Trial counsel demanded to know
        why inculpatory evidence identifying [Appellant] as the
        shooter was conspicuously absent from investigation
        documents and emphasized her vague, imprecise
        recollection that she “talked about” this statement during
        pre-trial preparations with the prosecutor. . . . Because
        Officer Benton was successfully impeached during cross-
        examination, there was no need for trial counsel to call the
        prosecutor as an impeachment witness during his case-in-
        chief. This more than reasonable decision was [a] matter
        of trial strategy, and thus, does not constitute ineffective
        assistance of counsel.

           In his PCRA petition, [Appellant] baldly assumes the
        contrary and argues that if trial counsel called the
        prosecutor as a witness, her testimony would have . . .
        impeached Officer Benton. This assertion patently fails to
        consider the prosecutor’s argument during the motion for
        mistrial─a motion that occurred before [Appellant’s] case─
        in─chief. . . .

                                *     *      *




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             If called to the stand to testify, it is highly probabl[e]
         the prosecutor would have provided a similar attestation.
         Moreover, such testimony would have been merely
         cumulative.     In his PCRA petition, [Appellant] fails to
         identify what additional, non-cumulative evidence the
         prosecutor could have produced.             Additionally, such
         testimony does not prove that Officer Benton testified
         falsely; it only shows the prosecutor and officer have a
         different recollection of the events of this case. . . . Here,
         it is clear the prosecutor would not have provided
         testimony helpful to the defense. . . .

PCRA Ct. Op. at 6, 7 (citations omitted). We agree no relief is due.

      We hold Appellant has not satisfied the prejudice prong of the

ineffective assistance of counsel test, as he has not “prove[n] that a

reasonable probability of acquittal existed but for the action or omission of

trial counsel. Because this claim is without merit, counsel cannot be deemed

ineffective.” See Perry, 959 A.2d at 935.

      The argument section of Appellant’s brief does not address issues II.B

and C, of the statement of the questions presented. Therefore, these issues

are waived. See Jones, 815 A.2d at 604 n.3 .

      For the foregoing reasons, we affirm the order of the PCRA court

denying Appellant’s petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/24/2014




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