J-S42001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIAM PHILIP BLACK,

                            Appellant                No. 1504 WDA 2014


                  Appeal from the PCRA Order August 27, 2014
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000943-2009


BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 19, 2016

       Appellant, William Philip Black, appeals from the order entered on

August 27, 2014, denying his petition filed pursuant to the Post Conviction

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

       A prior panel of this Court provided the following factual background

relevant to Appellant’s underlying conviction:

             On July 15, 2009, the Commonwealth charged Appellant
       with criminal homicide and robbery—infliction of serious bodily
       injury, resulting from the April 20, 2009 murder of William
       Joseph Pierce (victim), and the theft of victim’s wallet and cell
       phone. (See Information, 7/15/09, at 1).

               The trial court aptly provided the evidence adduced at
       trial, as follows:

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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          Evidence presented at trial held February 7 through
          February 11, 2011, included the testimony of Jamie
          Douglas of Denbo, Fayette County, who stated that
          she knew both the victim and Appellant. Ms. Douglas
          testified that earlier in April 2009, Appellant asked
          her to use her cell phone to call the victim to see
          about his money. (See N.T., 2/09/11, at 423-24).
          She knew Appellant actually called the victim
          because his name came up in her contact list on the
          phone, Appellant appeared to Ms. Douglas as
          “pissed”, and she overheard him tell the victim that
          he wanted his money. (See id.).

                Another witness, Tina Pitcock, testified that she
          knows Appellant as “Teeni” and thought he was one
          of her best friends. She told the jury that she also
          knew the victim, . . . and had been with him at
          Appellant’s house. On the day of the crime, April 20,
          2009, Appellant borrowed her car, a Mustang, from
          about 7:00 P.M. until he returned it at about 8:17
          P.M., when she then gave him a ride to the home of
          his cousin Brandi. (See N.T., 2/08/11, at 187-94).
          When she allowed Appellant to use her vehicle, Ms.
          Pitcock knew he was trying to collect money from the
          victim. (See id.). An hour or two after dropping
          Appellant off at Brandi’s residence, Ms. Pitcock went
          back to Brandi’s house to borrow either cigarettes or
          money to buy some. While there, she saw Appellant
          for the last time.

                 Commonwealth witness April Krushak told the
          jury that she knows Appellant and was talking to him
          at approximately 7:30 P.M. on April 20, 2009, on her
          front porch when they saw the victim drive by. (See
          id. at 212). Appellant immediately left the porch and
          tried to get the victim to stop his car. (See id. at
          215). When the victim just kept going, Appellant got
          into [a] silver-colored Mustang and drove off in the
          same direction that the victim had been going. (See
          id. at 217). Ms. Krushak also testified that a few
          weeks before the day of the murder, she had been
          involved in a telephone call with Appellant, during
          which he said he wanted to get in touch with the
          victim to “fuck him up” because the victim allegedly

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          owed him money. (See id. at 219). When Ms.
          Krushak saw Appellant on the day of the crime,
          Appellant was wearing a black hooded sweatshirt
          and jeans. When she last saw the victim driving
          away in his green car and Appellant driving after him
          in the silver Mustang, both men were heading toward
          Brownsville, Fayette County. (See id.). She heard
          the next day that somebody had been shot in
          Brownsville. (See id.).

                 At some point later in the evening of April
          20th, Appellant arrived alone at the residence of
          Brandi Brooks, his cousin, on Water Street in
          Brownsville. He stayed there for a couple of hours
          and left at about 2:00 A.M. the following morning
          (April 21st). (See N.T., 2/07/11, at 62-66). A couple
          of days later Appellant called Ms. Brooks to tell her
          to make sure everything was cleaned up in her
          house. He also told her to throw her three garbage
          bags in a dumpster located in one of the housing
          projects some distance away. (See id. at 68-70).
          Appellant told his cousin that she needed to get rid
          of her garbage because of the drug paraphernalia in
          it, and offered to babysit her children so she could
          drive the garbage bags to the project dumpster. Ms.
          Brooks removed the garbage contained in the three
          black plastic bags from her residence, but put it into
          the trash can right outside instead of removing it to
          a dumpster as Appellant had instructed. (See id. at
          72). On April 24, 2009, Trooper Beverly Ashton went
          to Brandi Brooks’ residence and obtained her consent
          to take the three garbage bags from her trash can.
          (See id. at 88-89). Trooper Ashton then drove the
          bags to the state police barracks and searched them,
          eventually finding therein the victim’s cell phone and
          his wallet which had within it his driver’s license.
          (See id. at 89-90).

                 Pennsylvania State Police Trooper Christian
          Lieberum, the lead investigator on this case,
          questioned Appellant as to his whereabouts on April
          20, 2009, and the answers Appellant provided
          differed in germane and relevant details from the
          statements given by the other witnesses. (See N.T.,

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            2/09/11, at 450-53). Trooper Lieberum then
            obtained a search warrant for Appellant’s Brownsville
            residence, pursuant to which he found a dark grey
            hooded sweatshirt, which he confiscated. Said
            sweatshirt was later determined to belong to the
            victim. (See id. at 467-68). On April 28, 2009, the
            trooper served a search warrant on Appellant so as
            to take his palm prints and a bucchal swab. Trooper
            Lieberum asked no questions during the execution of
            the search warrant, but when Appellant asked him
            how the investigation was going, the officer told him
            he was in custody for the crime and he was getting
            the credit for it. Appellant then replied that you don’t
            get any credit for wasting a basehead. (See N.T.,
            2/07/11, at 46-61).

                  Alfred J. Schwoeble, a forensic technical
            advisor with the R.J.Lee Group, an analytical
            laboratory, testifying as an expert in gunshot residue
            analysis, told the jurors that one particle consistent
            with gunshot residue was found on the steering
            wheel of the silver Mustang. (See N.T., 2/08/11, at
            168, 170). More particles consistent with gunshot
            residue were found on the grey sweat shirt belonging
            to the victim as well as on his wallet. (See id. at
            171-72, 175-76).

     (Trial Court Opinion, 4/21/11, at 1-4 (some record citations
     omitted; record citation format provided)).

Commonwealth v. Black, 108 WDA 2012, 53 A.3d 923 (Pa. Super. filed

June 1, 2012) (unpublished memorandum at pages 1-4) (internal footnote

omitted).   On February 11, 2011, a jury convicted Appellant of second-

degree murder, and the trial court sentenced him to a term of life in prison.

This Court affirmed Appellant’s judgment of sentence on June 1, 2012. Id.

Appellant’s petition for allowance of appeal in the Pennsylvania Supreme




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Court was denied on March 1, 2013.             Commonwealth v. Black, 63 A.3d

1242 (Pa. 2013).

       Appellant filed a timely pro se PCRA petition on November 4, 2013,

and the PCRA court appointed counsel. An amended PCRA petition was filed

on April 1, 2014. The PCRA court held hearings on Appellant’s petition, and

in an order filed on August 27, 2014, the PCRA court denied Appellant relief.

This timely appeal followed. Both the PCRA court and Appellant have

complied with Pa.R.A.P. 1925.1

       On appeal, Appellant raises the following issues for this Court’s

consideration:

       1. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO CROSS
       EXAMINE THE FORENSIC GUNSHOT EXPERT?

       2. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILINT [sic] TO
       OBJECT TO THE INTRODUCTION OF THE EVIDENCE OF THE
       SWEATSHIRT WHICH WAS THE VICTIM’S AND NOT THE
       APPELLANT’S?

       3. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO
       REQUEST THE IDENTIFICATION OF THE CONFIDENTIAL
       INFORMANT WHOSE TIP LED TO THE SEARCH OF THE TRASH?

       4. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO
       INTERVIEW OR CALL TO TESTIFY THE ALIBI WITNESS WHO
       WOULD HAVE TESTIFED [sic] THAT THE APPELLANT WAS WITH
       HIM DURING THE PERIOD THAT THE SHOOTING OCCURRED?
____________________________________________


1
  It appears that the delay in disposing of this appeal was due to the PCRA
court’s failure to forward the record to this Court. The Superior Court docket
entries reflect that on December 17, 2014, this Court’s Prothonotary sent
notice to the PCRA court that the record was delinquent. The record was
received in Superior Court on January 15, 2016.



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       5. WAS IT     PROSECUTORIAL MISCONDUCT FOR                         THE
       COMMONWEALTH TO INTRODUCE THE SWEATSHIRT OF                        THE
       VICTIM AS EVIDENCE, CAUSING THE JURY TO CONFUSE                    THE
       ITEM WITH ONE TAKEN FROM THE RESIDENCE OF                          THE
       APPELLANT?

Appellant’s Brief at 5.2

       Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).              The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

       In Appellant’s first four issues, he raises claims of ineffective

assistance of counsel.          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.      Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa.

____________________________________________


2
 For purposes of our discussion, we have renumbered Appellant’s issues on
appeal.



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1987).    “In order to meet the prejudice prong of the ineffectiveness

standard, a defendant must show that there is a ‘reasonable probability that

but for counsel’s unprofessional errors, the result of the proceeding would

have been different.’”    Commonwealth v. Reed, 42 A.3d 314, 319 (Pa.

Super. 2012).     A claim of ineffective assistance of counsel will fail if the

petitioner does not meet any of the three prongs.          Commonwealth v.

Williams, 863 A.2d 505, 513 (Pa. 2004).              “The burden of proving

ineffectiveness rests with Appellant.” Commonwealth v. Rega, 933 A.2d

997, 1018 (Pa. 2007).

      In his first two issues, Appellant avers that trial counsel was ineffective

for failing to cross-examine Alfred Schwoebel, the forensic gunshot expert

(“the expert”).    Appellant asserts that while the gunshot residue expert

testified that residue was found on the victim’s sweatshirt and the steering

wheel of the car Appellant drove, no residue was found on Appellant’s shirt.

Appellant’s Brief at 7. The crux of Appellant’s argument in issues one and

two is that, in Appellant’s opinion, it was not clear whether the jury believed

the gunshot residue was from the victim’s sweatshirt or Appellant’s

sweatshirt. Id. at 9.

      The record reveals that at trial, the Commonwealth questioned the

gunshot-residue expert about the steering wheel and a sweatshirt.          N.T.,

2/7-11/11, at 168, 170. While the Commonwealth on direct examination did

not reiterate that the sweatshirt belonged to the victim, and while counsel


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for Appellant did not cross examine the witness regarding ownership of the

sweatshirt, we do not conclude that Appellant has established ineffective

assistance of counsel.    Appellant merely asserts that ownership of the

sweatshirt was not clear. Appellant’s Brief at 9.

      At the PCRA hearing, Attorney Michael Garofalo, Appellant’s trial

counsel who cross-examined the expert, testified that he “didn’t even

address the sweat shirt, because it was the victim’s sweat shirt that had

been discussed.”   N.T., 6/25/14, at 43.    Attorney Garofalo stated that he

focused on the Commonwealth’s attempt to introduce new evidence that had

not been inventoried, the victim’s wallet, and the steering wheel of the car

Appellant drove. Id. Counsel’s rationale for focusing the jury’s attention on

the steering wheel was that if Appellant drove that car “you would think that

the steering wheel would be covered [with residue] if [Appellant] had fired

[a] gun with his bare hands and then drove away.” Id. at 44. There was,

however, “minimal amounts” of residue on the steering wheel. Id. Thus,

counsel was aware that the sweatshirt did not belong to Appellant and

concluded there was no need to address that item further.       Rather, as a

matter of strategy, counsel opted to focus on the minimal amount of gun

shot residue recovered from the car.

      After review, we conclude that despite Appellant’s opinion on this

matter, he has failed to establish how he was prejudiced. In other words,

Appellant has failed to establish that, if counsel had cross examined the


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expert as to ownership of the shirt, the result of the trial would have been

different. Reed, 42 A.3d at 319. Moreover, while counsel for Appellant did

not specifically ask the expert about ownership of the sweatshirt, the notes

of   testimony     reveal   that   the   sweatshirt,   which   was   marked    as

Commonwealth Exhibit 12, was repeatedly identified as the victim’s shirt and

admitted into evidence. N.T., 2/7-11/11, at 170, 292, 295, 467-468, and

481. For these reasons, Appellant’s first two issues are meritless.

         Next, Appellant argues that trial counsel was ineffective for failing to

request the identification of the confidential informant who led police to

search Brandi Brook’s garbage where the victim’s wallet and phone were

discovered.       A review of Appellant’s Brief, however, reveals that he

abandoned this issue on appeal as there is no argument on this issue in his

brief.    Therefore, it is waived. See Commonwealth v. Puksar, 951 A.2d

267, 293-294 (Pa. 2008) (deeming a claim waived where the appellant failed

to make or develop an argument).

         In his fourth issue, Appellant alleges that trial counsel was ineffective

for failing to interview or call to testify an alibi witness. We disagree.

         In order to establish that counsel was ineffective for failing to call an

alibi witness, the defendant must prove: the witness existed and was

available; counsel was aware of or had a duty to know of the witness; the

witness was willing and able to appear; and the proposed testimony was

necessary to avoid prejudice to defendant.        Commonwealth v. Thomas,


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44 A.3d 12, 17 (Pa. 2012) (citing Commonwealth v. Morris, 684 A.2d

1037, 1044 (Pa. 1996)).

     The PCRA court addressed this issue as follows:

            [Appellant assails] the failure of trial counsel to call
     Alexander R. Thompson as an alibi witness on [Appellant’s]
     behalf during the trial. At [PCRA] hearing on this matter, Mr.
     Thompson testified that he met [Appellant] for the first time on
     the evening of the homicide when [Appellant] came to the
     residence of Brandi Brooks, Mr. Thompson’s girlfriend, when he
     was babysitting her children while she went to bingo. PCRA
     Proceedings, July 15, 2014, p.7. At some time after the
     homicide, Trooper Lieberum talked to Mr. Thompson, and Mr.
     Thompson subsequently provided a written statement to the
     police. Id. p. 6. In the statement dated April 20, 2011, Mr.
     Thompson said that he was standing on the porch as Ms. Brooks
     was leaving for bingo around 6:30 or 6:45 P.M. when [Appellant]
     strolled onto the premises, stating his intention to play video
     games on the game consol[e] in Ms. Brooks’ home. Id. p. 9; See
     also Mr. Thompson’s pretrial statement. Under cross-
     examination at the hearing, Mr. Thompson conceded the
     possibility that Ms. Brooks left the house late that evening, as
     she herself testified at trial, but the bingo itself started at 7:00
     P.M. Id. p. 8. He further testified that he cannot remember
     anyone from the Fayette County Public Defender’s office calling
     him or contacting him. Id. p. 6. The only person he could
     remember talking to about [Appellant’s] presence in his
     residence on the evening of the killing was Trooper Lieberum. Id.
     p.12.

            Mr. Thompson’s testimony at the PCRA hearing is
     contradicted by other testimony elicited at that proceeding.
     Attorney Susan Ritz Harper of the Public Defender’s office, one of
     Petitioner’s trial attorneys, testified that she was aware of Mr.
     Thompson’s statement and spoke to [Appellant] about it before
     the trial. PCRA Proceedings Part One, June 25, 2014, p. 21. She
     absolutely denied that [Appellant] ever told her that he wanted
     Mr. Thompson to be called as a witness, pointing out that he was
     Ms. Brooks’ boyfriend, and she was testifying for the
     Commonwealth. Id. p. 32. Likewise, trial co-counsel, Michael
     Garofalo, did not remember [Appellant] ever saying that he
     wanted Alexander Thompson called to testify. Id. p. 41. In

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      addition, Mr. Thompson’s written statement relative to the time
      of [Appellant’s] arrival at Ms. Brooks’ house was an estimated
      time and, as Attorney Harper stated, was contradicted by Ms.
      Brooks, who testified at trial that she was late for bingo and
      missed the early bird game, which, as Attorney Harper went on
      to say, put her arriving at the bingo after 6:45 or even 7:00 P.M.
      Id. p. 32. Most importantly, [Appellant] himself had said that he
      never left his mother’s house where he had been prior to arrival
      at the Brooks house until after 7:00 P.M., and he walked from
      one residence to the other. Id. Attorney Harper further said that
      Mr. Thompson’s statement also placed [Appellant] in the kitchen
      of the Brooks house, where the garbage can was kept, which
      meant that he could have put something in it. Id. pp. 33-34.
      That garbage can was later placed outside and subsequently
      searched, and the victim’s wallet and cell phone were found
      therein. Id. Part of the defensive argument during the trial was
      that the garbage can was outside, and anyone could have put
      those incriminating items in it. Id. p. 34. The Court finds this
      issue of the alleged failure to call Alexander Thompson as an
      alibi witness at trial to be without merit in that defense counsel
      considered doing so, but had very good strategic reasons for
      deciding not to.

PCRA Court Opinion, 8/27/14, at 5-7.

      We agree with the PCRA court. We cannot conclude that counsel was

ineffective for failing to call Mr. Thompson as a witness and elicit testimony

from an individual who could directly connect Appellant to the garbage can

where the victim’s wallet and phone were found.           Thus, Mr. Thompson’s

testimony would not have prevented prejudice; rather, it would have caused

prejudice to Appellant. Thomas, 44 A.3d at 17. Accordingly, Appellant is

due no relief on this issue.

      Finally,   Appellant     avers   that     the   Commonwealth   committed

prosecutorial misconduct when it introduced the victim’s sweatshirt because

it caused the jury to confuse the item with one belonging to Appellant.

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Appellant’s Brief at 13.      Appellant baldly claims that the attorneys for the

Commonwealth intentionally mislead the jury regarding ownership of the

shirt.    Id. 14.     We are constrained to point out that an allegation of

prosecutorial misconduct is not cognizable as an independent basis for relief

under the PCRA.3         Commonwealth v. Sepulveda, 55 A.3d 1108, 1138

(Pa. 2012); 42 Pa.C.S. § 9543(a)(2). Moreover, Appellant could have raised

this issue on direct appeal but failed to do so; therefore, the issue is also

waived. 42 Pa.C.S. § 9543(a)(3); 42 Pa.C.S. § 9544(b).4

         For the reasons set forth above, we discern no error of law or abuse of

discretion in the PCRA court’s decision.           Accordingly, we affirm the order

denying Appellant’s PCRA petition.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/19/2016
____________________________________________


3
  Were this issue cognizable, we would conclude it is meritless. As noted
above, the sweatshirt was properly referred to and identified as belonging to
the victim, and we would conclude that there is no support for Appellant’s
accusation.
4
  “[A]n issue is waived if the petitioner could have raised it but failed to do
so before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.” 42 Pa.C.S. § 9544(b).



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