J-E01001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

KARIM HUSIEN WRIGHT,

                          Appellant                  No. 648 MDA 2011


             Appeal from the PCRA Order entered March 11, 2011,
                in the Court of Common Pleas of Berks County,
             Criminal Division, at No(s): CP-06-CR-0004799-2002


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., and
        PANELLA, DONOHUE, ALLEN, LAZARUS, MUNDY, and OLSON, JJ.

MEMORANDUM BY ALLEN, J.:                          FILED AUGUST 05, 2014

                                                         the order denying his

first petition filed pursuant to the Post Conviction Relief Ac

Pa.C.S.A. §§ 9541-46. After careful review, we affirm.

        The pertinent facts and procedural history are as follows: On May 3,

2002, Appellant                                                         inside

an after-hours establishment called the Tunnel Club. Prior to the shooting,

Appellant rented a room at the Ramada Inn with Lynnita Theodile and her

boyfriend, Dante Jackson. Two other men arrived at the hotel and Appellant

                                                                         N.T.,

3/24/03, at 123. Ms. Theodile did not observe Appellant with a gun at the

time.
J-E01001-14



     Appellant then traveled to the Tunnel Club. Jermaine Holmes testified

that he witnessed Appellant become involved in a brief physical altercation

with the victim.   According to Mr. Holmes, Appellant and the victim were

involved in a fistfight when Appellant pulled a handgun from his waistband

with his left hand and shot the victim in his right upper chest. The wound

caused massive internal bleeding and resulted in the

the shooting, Mr. Holmes saw Appellant run toward the front door, although

he did not see him exit that door.    Another eyewitness, Jesus Hernandez

Corona, testified that he did not see Appellant fire the fatal shot, but that

immediately after gunshots rang out, he observed Appellant standing in the

area where the victim was shot holding a firearm in the air. Following the

shooting, Appellant traveled to North Carolina with Dante Jackson.

     While en route, Appellant admitted to Jackson that he killed the victim.

Mr. Jackson, who was a juvenile, signed a written statement for police in the




Dengler, that Appellant admitted killing the victim.      According to Mr.

Dengler, Appellant stated that he left the club after an altercation with the

victim, retrieved a gun, and then returned and shot the victim.      Finally, a

Commonwealth witness testified that upon returning to his prison block

following a religious service, he relayed a message from Appellant to Mr.



                                            -70.

                                     -2-
J-E01001-14



      On September 30, 2002, the Commonwealth charged Appellant with

first-degree murder, aggravated assault causing serious bodily injury,

aggravated assault causing bodily injury with a deadly weapon, recklessly

endangering another person, unlawful possession of a firearm, possessing a

firearm without a license, and two separate counts of possessing an

instrument of crime. At the conclusion of trial, the jury convicted Appellant

of the aforementioned charges. The trial court then sentenced Appellant to

the mandatory term of life imprisonment without parole for the murder

charge, and a consecutive sentence of three to seven years imprisonment

for possession of a firearm without a license.

      Appellant filed a timely appeal. In an unpublished memorandum filed

on March 9, 2004, this Cour

Commonwealth v. Wright, 850 A.2d 17 (Pa. Super. 2004). Appellant did

not file a petition for allowance of appeal to our Supreme Court. On March

                                                 pro se PCRA petition, which

we forwarded to the Berks County Clerk of Courts pursuant to Pa.R.A.P.

905(a)(4).



14, 2005. On May 3, 2005, the PCRA court appointed counsel. In the years

that followed, appointed counsel, as well as her replacement, filed several

requests for a continuance, and then sought leave to withdraw. On January

3, 2008, third PCRA counsel was appointed for Appellant.       PCRA counsel


                                     -3-
J-E01001-14


filed, and the PCRA court granted, multiple continuances. Ultimately, PCRA

counsel filed a twenty-three page Turner/Finley1 no-merit letter and a

request to withdraw on August 24, 2010.




Berks County, Pennsylvania. In addition, [PCRA counsel] has reviewed each

                                       petition, reviewed the transcriptions of the

proceeding, thoroughly analyzed and researched the factual and legal

                                                                             -Merit

Letter, 8/24/10, at 2.       PCRA counsel then addressed each issue Appellant

sought to raise, and explained why, in his professional opinion, the claim



investigate and/or call five witnesses, PCRA counsel averred in the letter that

he informed Appell

                                                         Id. at 4.   PCRA counsel



request to the PCRA Court for funds to hire a private investigator,

[Appellant] would need to provide some support beyond the mere



Id. at 4-5.       Nevertheless, PCRA counsel stated that he attempted to
____________________________________________


1
 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



                                           -4-
J-E01001-14


investigate each of these witnesses, and based on that investigation,




withdraw.

      On February 17, 2011, the PCRA court issued a fifteen-page

Pa.R.Crim.P. 907 notice of intent to dismiss, discussing the merits of each of

the issues Appellant raised in his pro se petition, and permitting PCRA

counsel to withdraw.    Appellant filed a pro se response to the notice of

dismissal, and the court issued its final order on March 11, 2011, denying



      Appellant filed a timely pro se appeal to this Court. In an unpublished

memorandum filed on December 17, 2012, a divided panel affirmed the

                               -conviction relief.   On January 11, 2013,

Appellant filed a pro se

                                                                     en banc

reargument, and withdrew the original panel decision. On October 21, 2013,

we entered an order directing the PCRA court to appoint counsel to

represent Appellant for purposes of en banc reargument.      Current counsel

entered his appearance on November 4, 2013.




                                    -5-
J-E01001-14


        On January 7, 2014,

an Anders2 brief and a petition to withdraw.               Compliance with Anders

applies to counsel who seeks to withdraw from representation on direct

appeal.    Anders imposes stricter requirements than those imposed when

counsel seeks to withdraw during the post-conviction process pursuant to

Turner/Finley, supra.          See Commonwealth v. Fusselman, 866 A.2d



that the     issues Appellant wishes to           raise   have   no merit under   a

Turner/Finley analysis.

                                               Anders brief reveals that it fails to

comply with even the more liberal requirements of a Turner/Finley letter.

See generally, Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009).

Rather than discuss the eleven issues Appellant originally sought to raise in

his pro se PCRA petition, current counsel discussed and rejected two of



now withdrawn panel decision.          Anders Brief, at 8. Nevertheless, current

cou




____________________________________________


2
    Anders v. California, 386 U.S. 738 (1967).




                                           -6-
J-E01001-14


withdraw, we will review each claim Appellant raised in his previous pro se

appeal to this Court.3

       Those twenty issues may be summarized as follows:

          1. Trial counsel was ineffective for failing to subpoena
          Angel Freytiz, a bouncer who had searched Appellant when
          he came into the club who would testify that Appellant did
          not have a gun.

          2. Trial counsel was ineffective for failing to put Sam
          Castillo on the stand, a bartender who saw Appellant at the
          bar when shots were fired.

          3. Trial counsel was ineffective for failing to subpoena
          Gregg Jefferson, who was with Appellant the whole time
          and would testify Appellant was not the shooter.

          4. Trial counsel was ineffective for failing to call the
          mother of a defense witness who would have testified that
          she did not meet lead Criminal Investigator Christopher
          Santoro, contrary to his testimony.

          5. Trial counsel was ineffective for failing to subpoena
          Melanie Hallman, who would testify that she saw an
          argument outside the club in which 8-10 shots were fired.
          She also saw the victim being put in the van that took him
          to the hospital and saw a purple car speed away.

          6. Trial counsel was ineffective for failing to properly
          cross-examine and impeach state witness Jermaine
          Holmes through statements that contradict testimony,
          prior drug charges, and pending charges. Trial counsel

____________________________________________


3
                                                 Anders Brief, Appellant challenges

A claim of ineffective assistance of appellate PCRA counsel cannot be raised
at this time. Nevertheless, as discussed supra
claims are meritless, Appellant has not been prejudiced by any perceived
                                      rmance.




                                           -7-
J-E01001-14


       should have shown that Criminal Investigator Santoro was
       lying.

       7. Did the PCRA court abuse its discretion and/or err when
       it allowed PCRA counsel to withdraw?

       8. Should Appellant be afforded all records/documents
       relating to judgment and conviction as to allow Appellant
       to research the record for meritorious appeal issues and to
       cite the record in his pro se brief?

       9. Did the Commonwealth withhold exculpatory evidence
       and/or Brady v. Maryland material and/or Giglio v.
       United States, and/or Jencks Act (18 U.S.C. § 3500)
       material and their progeny when the Commonwealth failed
       to disclose material evidence to the defense relating to
       Commonwealth witnesses; was trial counsel ineffective for
       failing to investigate/obtain same and was all counsel
       ineffective for failing to litigate same on appeal?

       10. Was trial counsel ineffective for failing to present
       and/or investigate known evidence that someone other
       than Appellant committed the crime; was all prior counsel
       ineffective for failing to litigate same on appeal?

       11.    Was trial counsel ineffective for failing to call
       witnesses to aid the defense; was all prior counsel
       ineffective for failing to appeal the same?

       12. Was trial counsel ineffective for failing to object to the

       procedures and/or results of luminol (blood presence test)
       that said witness did not perform and was not qualified as
       an expert; and did the trial court err/abuse its discretion
       when it failed to strike said testimony and/or give curative
       instructions relating to same; was all prior counsel
       ineffective for failing to litigate same on appeal?

       13. Was trial counsel ineffective for failing to strike jurors
       who knew witnesses and/or people involved in the case

       counsel ineffective for failing to litigate same on appeal?

       14. Was trial counsel ineffective for failing to object to
       witnesses who were not sequestered but sat in the trial



                                   -8-
J-E01001-14


           audience and then gave trial testimony; was all prior
           counsel ineffective for failing to litigate same?

           15.    Was the interpreter used in these proceedings
           properly certified/qualified to be used in such capacity;
           was all prior counsel ineffective for failing to litigate same
           on appeal?

           16. Did the prosecution commit misconduct during closing
           arguments, and by allowing false testimony by its
           witnesses at trial; was trial counsel ineffective for failing to
           object to same; was all prior counsel ineffective for failing
           to litigate same on appeal?


           of witness
           and lying under oath, denying Appellant a fair trial; was
           trial counsel ineffective for not objecting to same; was all
           prior counsel ineffective for failing to litigate same on
           appeal?

           18. Did the trial court abuse its discretion/err when it
           allowed a witness to evade questions during cross-
           examination through a Spanish interpreter; was counsel
           ineffective for failing to remedy same; was all prior counsel
           ineffective for failing to litigate same on appeal?

           19.
           when    trial   counsel   inadequately    advised    Appellant

           all prior counsel ineffective for failing to litigate same on
           appeal?

           20. Trial counsel was ineffective for failing to investigate
           available fingerprints that could shed light on who the killer
           was. Trial counsel failed to investigate defense witness

           witness.

See                          -8.

      This Court recently described our scope and standard of review as

follows:



                                        -9-
J-E01001-14


         We review an order dismissing a petition under the PCRA
         in the light most favorable to the prevailing party at the
         PCRA level. Commonwealth v. Burkett, 5 A.3d 1260,
         1267 (Pa.Super. 2010). This review is limited to the
         findings of the PCRA court and the evidence of record. Id.
         We will not disturb a PCRA court's ruling if it is supported
         by evidence of record and is free of legal error. Id. This
         Court may affirm a PCRA court's decision on any grounds if
         the record supports it. Id. Further, we grant great
         deference to the factual findings of the PCRA court and will
         not disturb those findings unless they have no support in
         the record. Commonwealth v. Carter, 21 A.3d 680, 682
         (Pa.Super. 2011). However, we afford no such deference
         to its legal conclusions. Commonwealth v. Paddy, 609
         Pa. 272, 15 A.3d 431, 442 (2011); Commonwealth v.
         Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (2007).
         Where the petitioner raises questions of law, our standard
         of review is de novo and our scope of review plenary.
         Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874,
         886 (2010).

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012).




counsel, a petitioner must plead and prove: (1) that the underlying issue

has arguable merit; (2) counsel's actions lacked an objective reasonable

basis; and (3) actual prejudice resulted from counsel's act or failure to act.

If a petitioner fails to plead or meet any elements of the above-cited test,

                      Id. at 1194. In addition, where the claim pertains to



the witness existed; (ii) the witness was available to testify; (iii) counsel

knew of, or should have known of, the existence of the witness; (iv) the


                                    - 10 -
J-E01001-14


witness was willing to testify; and (v) the absence of the testimony was so

prejudicial as to have denied the defendant a fair trial. Commonwealth v.

Chmiel, 30 A.3d 1111, 1143 (Pa. 2011); Commonwealth v. Cox, 983 A.2d

666, 692 (Pa. 2009).

      With regard to each witness, Appellant has failed to establish one or

more of the Chmiel factors. Instead, he merely asserts that trial counsel

was ineffective for refusing to interview and subpoena Angel Freytiz, Samuel

Castillo, and Gregg Jefferson.   In addition, he maintains that trial counsel

should have called the mother of Felicia Martin to impeach the testimony of

the lead criminal investigator in this matter, and Melanie Hallman to testify

that she saw an argument outside the club where eight to ten shots were

fired and the victim was placed in the van that transported him to the

hospital.



not met his burden of establishing that the witnesses existed, were

available, that trial counsel should have known of the witnesses, or that they

were willing to testify on his behalf.   As discussed above, PCRA counsel

informed Appellant that he needed more information before requesting funds

for a private investigator. See supra. Moreover, as to Gregg Jefferson, our



PCRA counsel that Jefferson was not available at the time of trial. See No-

Merit Letter, 8/24/10, at 6.     In addition, our review also supports the


                                    - 11 -
J-E01001-14




mother could have changed the outcome of the trial, particularly when

Appellant confessed to two different people that he killed the victim. Finally,



contention that Appellant acknowledged that trial counsel did not wish to call

                             experiences with the witness demonstrated the

                      See No-Merit Letter, at 7-8.

      In sum, because Appellant has not advanced any argument as to the

tripartite ineffectiveness test or provided any argument relative to the law

pertaining to the failure to call a witness, these issues fail. Commonwealth

v. Paddy, 15 A.3d 431, 448 (Pa. 2011).

      In his sixth issue, Appellant submits that counsel was ineffective for

not cross-examining Jermaine Holmes about his prior inconsistent statement

to the police, his prior drug charges, and pending charges. Additionally, he

baldy asserts that trial counsel should have shown that Criminal Investigator

Santoro was lying.

                                                              ot only did trial

counsel cross-examine Mr. Holmes about his pending criminal charges, and

his delay in coming forward, the Commonwealth itself elicited information

from Mr. Holmes regarding his initial refusal to identify Appellant as the

assailant and his incarcerated status.       Specifically, the Commonwealth


                                    - 12 -
J-E01001-14


indicated that Mr. Holmes was in jail for drug charges and that he originally

told police that he did not see who shot the victim.      Thus, the jury was



was testifying to curry favor with the prosecution, and his credibility issues.

Because Appellant has failed to identify any additional information about

which trial counsel should have inquired, his ineffectiveness claim fails. See

Commonwealth v. Sneed, 45 A.3d 1096, 1108 (rejecting the PCRA

                                                                   -examine a

Commonwealth witness).

       In his seventh issue, Appellant asserts that the PCRA court abused its

discretion in permitting PCRA counsel to withdraw.4        In support of this

argument, he claims that, as with deficient performances of all prior post-

conviction counsel, he was essentially abandoned by his attorneys, a

conclusion relied upon by this Court in Commonwealth v. Hampton, 718

A.2d 1250 (Pa. Super. 1998), as a basis for relief. We disagree.

       This Court recently summarized the Turner/Finley requirements in

Commonwealth v. Rykard, 55 A.3d 1177 (Pa. Super. 2012). We stated:


          The Turner/Finley decisions provide the manner for post-
          conviction counsel to withdraw from representation. The
          holdings of those cases mandate an independent review of
____________________________________________


4



907 notice of intent to dismiss. See generally, Pitts, supra.



                                          - 13 -
J-E01001-14


            the record by competent counsel before a PCRA court or
            appellate court can authorize an attorney's withdrawal.
            The necessary independent review requires counsel to file
                  -
            review and list each issue the petitioner wishes to have
            examined, explaining why those issues are meritless. The
            PCRA court, or an appellate court if the no-merit letter is
            filed before it, see Turner, supra, then must conduct its
            own independent evaluation of the record and agree with
            counsel that the petition is without merit.

Rykard, 55 A.3d at 1184 (citation omitted).

      As detailed above, PCRA counsel filed a twenty-three page no-merit

letter addressing each of the issues Appellant forwarded in his pro se

petition.    Citing to proper legal precedent, and indicating that Appellant



ineffectiveness claims were without merit.      After reviewing this letter, and

performing its own independent review, the PCRA court issued a fifteen-page



                                                                     counsel to

withdraw.

                                                               -conviction relief

includes a succession of court-appointed counsel and multiple continuances,

we cannot conclude that Appellant was abandoned by PCRA counsel as was

the petitioner in Hampton, supra. Indeed, as PCRA counsel stated in his

Turner/Finley no-merit letter, Appellant was not forthcoming with adequate

information upon which to investigate certain witnesses. Additionally, PCRA

counsel stated:


                                      - 14 -
J-E01001-14


            [Appellant] has suggested during the pendency of his
         PCRA proceedings other witnesses he believed should have
         been investigated. However, [Appellant] has not provided
         his prior PCRA counsel or current PCRA counsel with
         sufficient information to investigate the whereabouts of the
         witnesses or how their testimony would have changed the
         outcome of the trial.

No-Merit Letter, 8/24/10, at 8. Therefore, it is not clear from a review of the

record that prior post-conviction counsel were solely responsible for the

delay in this case. Fur

claims of ineffectiveness, Appellant cannot demonstrate that PCRA counsel

rendered ineffective assistance. Therefore, we do not find that the PCRA

court abused its discretion in permitting PCRA counsel to withdraw.



extent that Appellant has raised certain issues as a layered claim of

ineffectiveness, we note that, if we find trial counsel was not ineffective,

subsequent counsel cannot be deemed ineffective for failing to pursue the

claim further. See Commonwealth v. Rykard, 55 A.3d at 1190 (citation



from the underlying claims because proof of the underlying claim is an




relating to his judgment and conviction. This assertion is belied by the

record, where PCRA counsel filed a certificate of service noting that he

mailed copies of all documents pertaining to the case, including notes of

testimony, to Appellant.

                                    - 15 -
J-E01001-14



      In his ninth position advanced in this appeal, Appellant alleges a

Brady violation. According to Appellant, his uncle, Mr. Dengler, was a paid

Commonwealth informant, and the Commonwealth did not turn over this

information to the defense. At trial, Mr. Dengler testified that he was not

promised anything by the Commonwealth in return for his testimony. N.T.,

3/25/03, at 260. Hence, this claim is devoid of merit.

      The next issue Appellant raises, that trial counsel was ineffective for

failing to present or investigate evidence that another person committed the

crime, is waived for failure to present the issue below. Commonwealth v.

Wallace, 724 A.2d 916, 921 n.5 (Pa. 1999). Additionally, the claim fails for

lack of development of the ineffectiveness test. Commonwealth v. Steele,

961 A.2d 786, 797 (Pa. 2008).



object to testimony regarding the use of luminol, is waived for the same

reasons.   Further, trial counsel did object to the testimony, and was

overruled in part and sustained with respect to conclusions the officer drew

from the luminol test. N.T., 3/24/03, at 99-100.

      The thirteenth claim Appellant raises on appeal is that trial counsel

was ineffective for failing to strike jurors who knew witnesses involved in the



identify the jurors who possessed this familiarity, nor does he set forth the

names of the involved witnesses or family members.         As Appellant utterly


                                     - 16 -
J-E01001-14


fails to develop this issue, it necessarily fails. See Steele, 961 A.2d at 797.

Moreover, although Appellant did assert the names of jurors and witnesses

in filings with the PCRA court, we agree with its conclusion that Appellant

could not establish prejudice. See PCRA Court Opinion, 5/27/11, at 10.

      In his fourteenth issue, Appellant claims that trial counsel was

ineffective for not requesting that Ms. Collado, Ms. Theodile, and Barry

Jackson, the father of Dante Jackson, be sequestered. Consistent with his

prior averments, Appellant presents no argument on the ineffectiveness test.

Our review of the record suppo

if the witnesses were not sequestered, their testimony did not overlap.



the Tunnel Club. Ms. Collado indicated that she saw Appellant at the club,

but did not witness him fire the fatal shot. Lastly, Barry Jackson indicated

that he accompanied his son to the police station and that his son signed a

written statement acknowledging that Appellant admitted shooting the

victim. We fail to discern how neglecting to sequester these witnesses could

have prejudiced Appellant.

      Next, Appellant argues that trial counsel was ineffective for not

seeking a certified Spanish interpreter, apparently to interpret the testimony

of Mr. Corona. Appellant did not raise this issue before the PCRA court nor

does he advance any legal argument or citation relative to this issue.

Therefore, the issue is waived. Wallace, supra.


                                    - 17 -
J-E01001-14


       The sixteenth issue Appellant posits is an ineffective-assistance claim

relative     to   alleged   prosecutorial    misconduct     occurring     during   the



how the prosecution acted inappropriately, but states that it presented false

                                                    m is waived. Steele, supra.



before the PCRA court, that Appellant is referencing the testimony of Dante

Jackson.     When called by the Commonwealth at trial, Mr. Jackson denied

that Appellant confessed to killing the victim, and disavowed a signed

statement he had given the authorities in the presence of his father. See

N.T., 3/25/03, at 213-222. On cross-examination, Mr. Jackson reiterated

that his detailed statement was not the truth. Id. at 223.

       After Mr. Jackson completed his testimony, the trial court ordered,

outside the presence of the jury, that he be detained for committing perjury.

N.T., 3/25/03, at 241. Subsequently, Mr. Jackson indicated that he wished

to retake the stand and admit that Appellant confessed to him. Id. at 347-

348.   However, the trial court did not permit him to do so.              Id. at 349.



the Commonwealth did not induce any false testimony.

       The    seventeenth     issue   that   Appellant    raises   is   that   Criminal

Investigator Santoro harassed a witness, lied under oath, and coerced

witness statements. According to Appellant, Felicia Martin and her mother


                                        - 18 -
J-E01001-14


were coerced and harassed into signing statements and lying under oath.

Our

claim is waived because Appellant did not raise this issue before the PCRA

court. Wallace, supra. Even if the issue was preserved, Ms. Martin did not

provide testimony that damaged Appellant, as she refused to identify him as

the shooter, and therefore, no prejudice could have resulted.      See N.T.,

3/26/03, at 408-

                                                                  t relates to

her.



ineffective for allowing a witness to evade questions during cross-

examination through a Spanish interpreter.         Presumably, Appellant is

referencing Mr. Corona, but he does not identify the witness nor does he

present any cogent legal argument in his brief. For these reasons, his issue

fails. Steele, supra.



unknowingly waive his right to testify.   Appellant asserts that trial counsel




he could only be impeached based on prior convictions, and that if he

te

Id.


                                   - 19 -
J-E01001-14


      In Commonwealth v. Lawson, 762 A.2d 753 (Pa.Super. 2000), we

stated:

          It is well settled that a defendant who made a knowing,
          voluntary, intelligent waiver of testimony may not later
          claim ineffective assistance of counsel for failure to testify.
          See Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d
          261, 274-75 (2000); Commonwealth v. Schultz, 707
          A.2d 513, 520 (Pa.Super.1
          appellant may believe her failure to testify prejudiced her,
          the fact remains that appellant's decision was fully
          informed and voluntary.        As such, neither trial nor
          appellate counsel may be deemed ineffective in this
                    . See also Commonwealth v. Wallace, 347
          Pa.Super. 248, 500 A.2d 816, 819-820 (1985);
          Commonwealth v. Spells, 490 Pa. 282, 416 A.2d 470,

          intelligently decided not to testify, based on conversations
          with his lawyer, and the colloquy with the trial judge, we



Id. at 755-56. In addition, we have held:

          In order to support a claim that counsel was ineffective for

          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


Commonwealth v. Todd, 820 A.2d 707, 711 (Pa.Super. 2003).



[Appellant] in detail that it is his determination as to whether or not he

wants to testify.    I believe in light of the defense strategy and his prior

criminal r

3/26/03, at 406. The trial court asked Appellant if that was correct, and he


                                      - 20 -
J-E01001-14


responded in the affirmative.      Thus, Appellant cannot demonstrate that

counsel interfered with his ability to testify. Lawson, supra.




Indeed, Appellant had a prior record score of five and was previously

convicted of burglary.   See N.T., 4/7/03, at 5.   Burglary is a crimen falsi

conviction.   Commonwealth v. Trippett, 932 A.2d 188, 199 (Pa.Super.

2007).     Appellant was twenty-two at the time of his conviction in the

underlying matter, and was convicted of burglary as an adult.      Hence, his

burglary conviction was within ten years of the charges in this matter, and

therefore admissible as crimen falsi evidence. See Pa.R.E. 609.

      Finally, Appel                                                       be

impeached based on a prior homicide incident is highly disingenuous and

refuted by the record. Trial counsel actually successfully precluded evidence

that Appellant shot another individual in a prior incident in which Appellant

was also wounded. See

issue is entirely without merit.

      The final position Appellant advances on appeal is that trial counsel

was ineffective for failing to investigate fingerprint evidence as well as

conducting an insufficient investigation into his own defense witness, Desiree

Portner.   Ms. Portner was not called as a witness, although her proffered


                                    - 21 -
J-E01001-14


testimony was that she witnessed another person commit the shooting. See

N.T., 3/26/03, at 360.      During sentencing, the trial court placed on the

record the person Ms. Portner accused of committing the crime was in prison

at the time of the incident and subsequently died prior to trial.   See N.T.,

4/7/03, at 12.     Furthermore, Appellant does not adequately develop his

claim. We therefore do not need to consider it further. Steele, supra.

      Within his brief, Appellant does present argument relative to trial



Appellant maintains that counsel should have retained an expert to prove

that fingerprints on the murder weapon were not his. However, no gun was



hired an expert to test fingerprint evidence recovered from the club and the

van that transported the victim to the hospital. Fingerprint evidence from

the club and van were of no evidentiary value in establishing who murdered

the victim. Hence, this issue affords no relief to Appellant.   Further, the

failure to call an expert witness is governed by the same test delineated

supra relative to the failure to call a witness.   See Chmiel, 30 A.3d at

1143. Appellant has not indicated an expert that was available or willing to

testify. This claim of ineffectiveness fails.

      In sum, our review of the record supports the conclusion by the PCRA

                                                                            -

conviction relief was wholly devoid of merit. The additional claims raised by


                                      - 22 -
J-E01001-14


Appellant in his pro se brief are equally meritless or were not preserved for

                                                                            -

conviction relief.

      Petition to withdraw denied. Order affirmed.

      Judge Donohue files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2014




                                   - 23 -
