J-S02033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JARON AMBROSE

                         Appellant                 No. 2227 EDA 2015


                     Appeal from the Order June 26, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008198-2011


BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.

MEMORANDUM BY MOULTON, J.:                       FILED AUGUST 03, 2017

     Jaron Ambrose appeals from the June 26, 2015 order entered in the

Philadelphia County Court of Common Pleas dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

We affirm.

     The PCRA court comprehensively set forth the factual and procedural

history of this case in its June 26, 2015 order and opinion, which we adopt

and incorporate herein. See Order and Opinion, 6/26/15, at 1-3 (“PCRA Ct.

Op.”).

     Ambrose filed the instant PCRA petition, pro se, on January 31, 2014.

On March 13, 2015, appointed PCRA counsel filed an amended petition. On

May 28, 2015, the PCRA court sent notice of its intent to dismiss Ambrose’s

petition pursuant to Pennsylvania Rule of Criminal Procedure 907. On June
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11, 2015, Ambrose filed a response letter originally addressed to PCRA

counsel. On June 26, 2015, the PCRA court dismissed the petition.

Thereafter, Ambrose filed a timely notice of appeal.1

       Ambrose raises the following issues on appeal:

           Did the trial court err when it denied [Ambrose] post-
           conviction relief in the form of a new trial based on the
           ineffectiveness of trial counsel and after-discovered
           evidence in the absence of an evidentiary [hearing]?[2]

           A. Is [Ambrose] entitled to a new trial or a remand for an
           evidentiary hearing since trial counsel was ineffective when
           he abdicated his responsibility as counsel to make legal
           determinations that were in the best interest of [Ambrose]
           by failing to request a mistrial after a juror was
           approached by a member of the deceased victim’s family?

           B. Is [Ambrose] entitled to a new trial or a remand for an
           evidentiary hearing since appellate counsel was ineffective
           for arguing in the direct appeal that the trial court should
           have sua sponte declared a mistrial?

           C. Is [Ambrose] entitled to a new trial or a remand for an
           evidentiary hearing since trial counsel was ineffective when
           he failed to file and litigate a motion to suppress
           identification?

____________________________________________


       1
        On November 23, 2015, Barnabay C. Wittels, Esquire, who was
Ambrose’s PCRA counsel, entered his appearance in the instant appeal.
Thereafter, he filed an application to withdraw as counsel, which this Court
denied on February 2, 2016. On February 10, 2016, Attorney Wittels filed
an application for reconsideration of the Court’s order. On April 18, 2016,
this Court denied the application without prejudice to Attorney Wittels’ right
to apply to the PCRA court for the requested relief. On May 6, 2016, the
PCRA court appointed Mitchell S. Strutin, Esquire, to represent Ambrose.
       2
      We will not address separately this introductory issue, as it merely
summarizes the remaining issues Ambrose has raised on appeal.



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        D. Is [Ambrose] entitled to a new trial or a remand for an
        evidentiary hearing since trial counsel was ineffective when
        he failed to conduct a pretrial investigation?

        E. Is [Ambrose] entitled to a new trial or a remand for an
        evidentiary hearing since trial counsel was ineffective when
        he failed to request DNA testing be performed on the gun
        retrieved, the fired cartridge casings and the magazine?

        F. Is [Ambrose] entitled to a new trial or a remand for an
        evidentiary hearing as a result of after-discovered
        evidence based upon misconduct allegations against
        Detectives James Pitts and Ohmarr Jenkins?

        G. Is [Ambrose] entitled to a new trial or a remand for an
        evidentiary hearing since PCRA counsel was ineffective for
        failing to raise in the amended PCRA petition trial counsel’s
        ineffectiveness for failing to object to the admissibility of
        [Ambrose]’s Facebook photo as a denial of [Ambrose]’s
        right to confrontation since the photo was not
        authenticated?

        H. Is [Ambrose] entitled to a new trial or a remand for an
        evidentiary hearing since PCRA counsel was ineffective for
        failing to raise in the amended PCRA petition trial counsel’s
        ineffectiveness for failing to object to the Commonwealth’s
        introduction of inadmissible hearsay?

        I. Is [Ambrose] entitled to a new trial or a remand for an
        evidentiary hearing since PCRA counsel was ineffective for
        failing to raise in the amended PCRA petition the issue of
        the prosecutor’s misconduct for failing to disclose DNA
        testing which was conducted by Police Officer Edward
        Fidler and trial counsel’s ineffectiveness for failing to
        investigate and raise this issue at trial?

Ambrose’s Br. at 4-6.

     Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).



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      Further, “[t]he right to an evidentiary hearing on a post-conviction

petition is not absolute.” Commonwealth v. Jordan, 772 A.2d 1011, 1014

(Pa.Super. 2001). If a claim is “patently frivolous and is without a trace of

support in either the record or from other evidence[,]” a PCRA court may

decline to hold an evidentiary hearing. Id. “[O]n appeal, [this Court] must

examine each of the issues raised in the PCRA petition in light of the record

in order to determine whether the PCRA court erred in concluding that there

were no genuine issues of material fact and denying relief without an

evidentiary hearing.” Id.

      Ambrose’s first five issues (A through E) raise claims for ineffective

assistance of his counsel. When analyzing ineffectiveness claims, we begin

with the presumption that counsel was effective.           Commonwealth v.

Spotz, 18 A.3d 244, 259-60 (Pa. 2011). “[T]he defendant bears the burden

of proving ineffectiveness.”   Commonwealth v. Ligons, 971 A.2d 1125,

1137 (Pa. 2009).    To overcome the presumption of effectiveness, a PCRA

petitioner must demonstrate that: “(1) the underlying substantive claim has

arguable merit; (2) counsel whose effectiveness is being challenged did not

have a reasonable basis for his or her actions or failure to act; and (3) the

petitioner suffered prejudice as a result of counsel’s deficient performance.”

Id. “A claim of ineffectiveness will be denied if the petitioner’s evidence fails

to meet any of these prongs.” Id.




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       In Ambrose’s first issue, he argues that his trial counsel was ineffective

for failing to move for a mistrial after a member of the victim’s family spoke

to a juror during a lunch break prior to closing arguments.

       Our Supreme Court has stated:

           [T]he remedy of a mistrial is an extreme one. . . . It is
           primarily within the trial court’s discretion to determine
           whether Appellant was prejudiced by the event that forms
           the substance of the motion.           Finally, it must be
           remembered that a mistrial is required only when an
           incident is of such a nature that its unavoidable effect is to
           deprive the appellant of a fair and impartial trial.

Commonwealth v. Lease, 703 A.2d 506, 508 (Pa.Super. 1997) (quoting

Commonwealth v. Montgomery, 626 A.2d 109, 112-13 (Pa. 1993)).

       On direct appeal, Ambrose claimed the trial court erred in failing to

declare a mistrial sua sponte.3         We concluded the trial court did not err,

reasoning:

           Here, the trial court dismissed the juror who was actually
           approached and thoroughly interviewed every other juror
           with regard to what he or she may or may not have heard.
           Moreover, each juror testified unequivocally that he or she
           could render a fair and impartial verdict.         Moreover,
           [Ambrose] was colloquied and elected to proceed.
           Accordingly, we conclude that the trial court did not abuse
           its discretion when it did not grant a mistrial sua sponte as
           there was no manifest necessity to do so.


____________________________________________


       3
        Because a claim of ineffectiveness “raises a distinct issue for
purposes of the PCRA,” Commonwealth v. Collins, 888 A.2d 564, 573
(Pa.2005), we conclude that this claim for ineffective assistance of counsel is
not barred for having been previously litigated.



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Commonwealth        v.   Ambrose,      No.   698    EDA    2013,   unpublished

memorandum at 6 (Pa.Super. filed Dec. 4, 2013). Accordingly, because we

previously concluded that a mistrial was not necessary, the underlying claim

of Ambrose’s first issue lacks arguable merit. The PCRA court therefore did

not err in finding that Ambrose’s trial counsel was not ineffective.

      In his second issue, Ambrose contends that his appellate counsel was

ineffective for arguing on direct appeal that the trial court should have sua

sponte declared a mistrial in light of the contact between the juror and

family member. Ambrose claims that appellate counsel “should never have

made this argument.” Ambrose’s Br. at 24. Rather, Ambrose argues that

the decision to request a mistrial lay with trial counsel, and not with

Ambrose himself or the trial court. Because we previously concluded that a

mistrial was not necessary, the underlying claim lacks arguable merit.

Further, there is no merit to the argument that only counsel could have

requested a mistrial.    Cf. Commowealth v. Kelly, 797 A.2d 925, 936

(Pa.Super. 2002) (“It is within a trial judge’s discretion to declare a mistrial

sua sponte upon the showing of manifest necessity, and absent an abuse of

that discretion, we will not disturb his or her decision.”).       Accordingly,

Ambrose cannot show that he was prejudiced by appellate counsel’s

performance. Thus, we conclude that appellate counsel was not ineffective.

      Ambrose next argues that his trial counsel was ineffective for failing to

file a motion to suppress identification testimony from a Commonwealth


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witness, Shaquita Morton.       The PCRA court concluded that Ambrose’s

underlying claim, that Morton’s identification testimony should have been

suppressed, had no arguable merit, and thus, counsel was not ineffective for

failing to file a motion to suppress. After our review of the certified record,

the parties’ briefs, and the relevant law, we conclude the PCRA court did not

err for the reasons stated in the PCRA court’s opinion, which we adopt and

incorporate herein. See PCRA Ct. Op. at 6-9.

      Ambrose next argues that his trial counsel was ineffective for failing to

conduct a pretrial investigation. Ambrose claims that “[t]here is no evidence

that trial counsel hired an investigator, sought out witnesses or did anything

other than react to the discovery provided to him by the Commonwealth.”

Ambrose’s Br. at 27.

      We first examine the part of Ambrose’s claim regarding trial counsel’s

alleged failure to investigate witnesses.

         To demonstrate the arguable merit of [an] underlying
         claim that his trial counsel was ineffective in failing to
         present additional witnesses, Appellant must establish the
         existence of and the availability of the witnesses, counsel's
         actual awareness, or duty to know, of the witnesses, the
         willingness and ability of the witnesses to cooperate and
         appear on the defendant’s behalf and the necessity for the
         proposed testimony in order to avoid prejudice. Moreover,
         Appellant must show how the uncalled witnesses’
         testimony would have been beneficial under the
         circumstances of the case.

Commonwealth v. Gibson, 951 A.2d 1110, 1133–34 (Pa. 2008) (citations

and internal quotation omitted).



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       At trial, after Ambrose’s counsel informed the court that he did not

intend to present any testimony or evidence on Ambrose’s behalf, and that

Ambrose did not intend to testify, the court colloquied Ambrose.           The

following exchange occurred:

           THE COURT: The first thing is, I know you have been
           communicating with [your counsel] Mr. Joseph and
           consulting with him and he’s been talking with you as he
           examined witnesses. So the first question I have to you,
           when he makes the representation that he has no
           testimony to present or witnesses to present, are you in
           agreement with that decision?

           [AMBROSE]: Yes.

           THE COURT: Is there anyone that you want him to call or
           subpoena to court and they have not arrived?

           [AMBROSE]: No.

           THE COURT: Are you comfortable in that decision that you
           have had enough time speak with your attorney and he’s
           answered all of your questions?

           [AMBROSE]: Yes.

N.T., 12/6/12, at 84-85.            In addition, Ambrose failed to identify the

witnesses he believes counsel failed to investigate,4 either in his amended

PCRA petition5 or in his appellate brief. Therefore, we agree with the PCRA

____________________________________________


       4
         In his amended PCRA petition, Ambrose alleged that trial counsel
also failed to interview and call alibi witnesses. Amend. PCRA Pet. at 10. He
also averred that PCRA counsel was awaiting information from Ambrose
regarding the witnesses for the purpose of obtaining affidavits. Id. at n.1.
The certified record does not contain any such affidavits.
       5
       In his original pro se PCRA petition, Ambrose listed Shikeda Johnson
as a potential witness. However, Johnson testified at trial, N.T., 12/5/12, at
(Footnote Continued Next Page)


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court that trial counsel was not ineffective for allegedly failing to investigate

witnesses.

      We also conclude that Ambrose’s claim trial counsel was ineffective for

failing to hire an investigator or for failing to do “anything other than react”

to the Commonwealth’s discovery likewise does not warrant relief. Ambrose

cites no legal authority obligating trial counsel to hire an investigator, nor is

this Court aware of such a duty; thus, the underlying claim is without merit.

The case on which Ambrose relies for his claim that counsel did nothing but

react to the Commonwealth’s discovery, Von Moltke v. Gillies, 332 U.S.

708 (1948), is irrelevant and contains no support for his claim.       Thus, we

conclude that the underlying claim lacks merit.



                       _______________________
(Footnote Continued)

25-68, and the certification attached to Ambrose’s pro se petition indicates
that Johnson’s proposed testimony would support Ambrose’s after-
discovered evidence claim, not a claim based on counsel’s alleged failure to
investigate witnesses.

      Additionally, according to the PCRA court, in Ambrose’s response to
the court’s Rule 907 notice, which is not part of the certified record,
Ambrose identified an unknown United States mail carrier as a potential
witness. PCRA Ct. Op. at 14-15. The PCRA court states that this witness
was presumably Elizabeth Gilbert. Id. at 14. Detective James Pitts testified
at trial that someone contacted Gilbert several days after the crime to
inquire whether she was the mail carrier for the street on which the crime
occurred. N.T., 12/5/12, at 56. Later, Gilbert’s supervisor contacted
Detective Pitts, informing him that Gilbert no longer wanted to be involved in
the case, was afraid, and had indicated that “she could never identify
anyone and was ultimately moved off that route.” Id.




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      Ambrose next argues that his trial counsel was ineffective for failing to

request DNA testing on the recovered gun, fired cartridge casings, and gun

magazine. At a pre-trial hearing on November 29, 2012, Ambrose expressly

declined DNA testing of the murder weapon and waived his right to “later

claim that there is possible DNA evidence that could exonerate” him. N.T.,

11/29/12, at 7. As the trial court stated, “[I]n other words, if you were to

be convicted, you can’t later say I want a new trial because the DNA testing

was never done.” Id. Our Supreme Court has stated that counsel cannot

be deemed ineffective for acting in conformity with his or her client’s

instructions.   Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005).

Accordingly, we agree with the PCRA court’s conclusion that counsel was not

ineffective for the reasons stated in the PCRA court’s opinion, which we

adopt and incorporate herein. See PCRA Ct. Op. at 15-18.

      In Ambrose’s sixth issue, he contends that he is entitled to a new trial

based on after-discovered evidence of the alleged misconduct of two

detectives involved in Ambrose’s case. A PCRA petitioner may be eligible for

relief if he pleads and proves by a preponderance of the evidence that his

conviction resulted from “[t]he unavailability at the time of trial of

exculpatory evidence that has subsequently become available and would

have changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.

§ 9543 (a)(2)(vi).     To establish a right to a new trial based on after-

discovered evidence:


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            appellant must show the evidence: 1) has been discovered
            after trial and could not have been obtained at or prior to
            the conclusion of trial by the exercise of reasonable
            diligence; 2) is not merely corroborative or cumulative; 3)
            will not be used solely to impeach a witness's credibility;
            and 4) is of such a nature and character that a different
            verdict will likely result if a new trial is granted.

Commonwealth v. Cousar, 154 A.3d 287, 311 (Pa. 2017).                       Ambrose

argues that the detectives’ misconduct was documented in a November 5,

2013 newspaper article that was attached to Ambrose’s pro se PCRA

petition. Ambrose’s Br. at 30.

       The Supreme Court addressed a similar argument in Commonwealth

v. Castro, 93 A.3d 818 (Pa. 2014). In Castro, the Court concluded that the

newspaper article in that case was not evidence6 for purposes of the


____________________________________________


       6
           The Court explained why the article was not evidence:

            We need not belabor the question of whether a newspaper
            article is evidence – the parties agree the article itself is
            not evidence.11 The Superior Court erred in treating the
            article as containing evidence; the article contains
            allegations that suggest such evidence may exist, but
            allegations in the media, whether true or false, are no
            more evidence than allegations in any other out-of-court
            situation. Nothing in these allegations, even read in the
            broadest sense, can be described as “evidence,” and
            references to the officer being under investigation for
            misconduct contains no information regarding what
            evidence existed to substantiate this averment. One
            cannot glean from these bald allegations what evidence of
            misconduct appellee intended to produce at the hearing.
            As the articles themselves were not evidence, much less
            sufficient evidence, we instead focus on whether the
(Footnote Continued Next Page)


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appellant’s post-sentence motion for a new trial based on after-discovered

evidence. Id. at 826. Moreover, because the newspaper article represented

the reporter’s version of what he or she had been told by another person,

the Court found that it was double hearsay.         Id.   The Court distinguished

Castro from Commonwealth v. Brosnick, 697 A.2d 725 (Pa. 1992), in

which the Court remanded for a new trial. In Brosnick, the appellant, who

had been convicted of driving under the influence, learned from a newspaper

article that the Pennsylvania Auditor General was investigating “the company

that manufactured items used to test the accuracy of breath-testing

machines. The ensuing report [from the Auditor General] attacked the

credibility of the machines’ certificates of accuracy.”      Id. at 826–27. The

appellant then moved for a new trial, citing the report rather the newspaper

article. Id. at 827. The Castro Court found that, unlike Brosnick, there

was no “end product here, no published report, no findings made, no

charges filed.” Id. It concluded that “[w]hile newspaper articles can alert a

party to the possible existence of evidence, the party must do more than
                       _______________________
(Footnote Continued)

          information described in the March 30 article can otherwise
          serve as the basis for appellee's claim.
                11
                       This Court and the Commonwealth and
                       Superior Courts have held newspaper
                       articles generally do  not   constitute
                       evidence, as they contain inadmissible
                       hearsay.

Castro, 93 A.3d at 825–26 (internal citations omitted).



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attach the article as establishing the evidence that will meet the four-

pronged test.” Id.

      Ambrose contends that because the detectives involved in his case

have been removed from their positions and because “some of the

convictions in cases in which they were involved” have been overturned,

“[t]his calls into question the propriety of the investigation and the tactics

employed and utilized to obtain witness statements and identification.”

Ambrose’s Br. at 32. Ambrose baldly asserts that “[i]n the instant matter,

witnesses were prepared to testify that they were pressured, intimidated and

threatened into giving inculpatory statement[s] and testimony against” him,

id.; notably, however, in his brief he does not identify any of the witnesses.

As stated above, in his pro se PCRA petition, Ambrose asserted that Shikeda

Johnson could testify as to possible police misconduct in relation to this

matter.   Specifically, Johnson would testify that she gave statements to

police and testified because “she was pressured, intimidated, [and] possibly

threatened” by Detective Pitts and “possibly Robyn Alston[.]” PCRA Pet. at

7.   However, Ambrose has failed to established that “the evidence was

discovered after trial and could not have been obtained at or prior to the

conclusion of trial by the exercise of reasonable diligence.”   Cousar, 154

A.3d at 311.

      At trial, Johnson testified as follows:

          Q. Did [the police] say that they were going to take [your]
          child from you?

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          A. Yeah. They were threatening me.

          Q. Is that why you gave the statement?

          A. No. They asked me questions and I answered them. But
          this right here is not what I'm saying. He put extra stuff in
          here.

          Q. So what's the extra stuff that he put in?

          A. The big paragraph right here.

          Q. You didn't say any of that?

          A. No. He put it in his words. That's not how I put it in
          mind.

N.T., 12/5/12, at 58. Johnson further testified that although she was asked

to review her statement for accuracy and then sign it, which she did, she

was “trying to sign it and go get [her] child.” Id. at 65. She testified that a

police officer told her that the quicker she signed her statement, the quicker

she could “get out to be with [her] child.”     Id. at 67.   Ambrose does not

explain why any testimony regarding possible police misconduct could not

have been obtained before the conclusion of trial by the exercise of

reasonable diligence.     Therefore, Ambrose is not entitled to relief on his

after-discovered evidence claim.

      Additionally, we conclude that Ambrose’s last three issues, which claim

ineffectiveness of PCRA counsel, cannot be reviewed for the first time on

appeal.   See Commonwealth v. Henkel, 90 A.3d 16, 20, 30 (Pa.Super.

2014) (en banc) (holding that “claims of PCRA counsel's ineffectiveness may

not be raised for the first time on appeal” and that such claims are

unreviewable); Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa.Super.

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2012) (holding that “absent recognition of a constitutional right to effective

collateral review counsel, claims of PCRA counsel ineffectiveness cannot be

raised for the first time after a notice of appeal has been taken from the

underlying PCRA matter”).

      Finally, because there were no genuine issues of material fact, we

conclude that the PCRA court properly dismissed Ambrose’s PCRA petition

without an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2017




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