J-S95020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARWAN HAWES

                            Appellant                 No. 2101 EDA 2016


                   Appeal from the PCRA Order June 20, 2016
              In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-00006674-2011


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                            FILED APRIL 19, 2017

        Marwan Hawes appeals from the June 20, 2016 order entered in the

Montgomery County Court of Common Pleas dismissing his petition filed

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

9546.       In lieu of an advocate’s brief, Hawes’ PCRA counsel has filed a

Turner/Finley1 “no-merit” letter and a motion to withdraw as counsel. We

affirm the PCRA court’s order and grant counsel’s motion to withdraw.

        This Court, in deciding Hawes’ direct appeal, set forth a detailed

factual history:

                  On April 15, 2011, Cheltenham Police arrive[d] at
               403 Salisbury Ave[nue] in Cheltenham Township to
               respond to a burglary in progress. Okkyong Rho
____________________________________________


        1
     Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
J-S95020-16


          [(Rho)] arrived home to find a red Jeep Cherokee
          with tinted windows parked and running outside of
          her home. Upon approaching her home, the Jeep
          blew its horn and three African American males fled
          from the residence and entered the Jeep. Rho stated
          that she was missing thousands of dollars in
          currency and women’s jewelry. Approximately ten
          minutes later, police located a red Jeep Cherokee
          with tinted windows, less than 1 mile from the Rho
          residence, with its engine and exhaust still warm. In
          plain view inside the vehicle were a police scanner
          and a pair of gloves. Rho positively identified [the
          Jeep as] the vehicle involved in the burglary.

             Other burglaries [had] occurred, on April 12 and
          13, in Lower Merion and Springfield Townships
          respectively. Witnesses to each of those burglaries
          saw a red Jeep Cherokee parked and running outside
          of the houses. One witness positively identified the
          Jeep located on April 15 as the one he saw during
          the April 13 burglary. Based on this information, a
          search warrant was issued and executed on the
          Jeep. Police found the following items: 2 police
          scanners, work gloves, a ski mask, a crowbar,
          several pieces of jewelry, and documents identifying
          [Hawes] and Raymond Stevenson[, as well as a
          vehicle registration card identifying Marcelline
          Hawes, [Hawes’] mother, as the owner].

                                 * * *

          During the alleged burglaries, [Hawes] was on house
          arrest and under the supervision of Jack Krupczak
          [(Krupczak)] of the Philadelphia Probation Office.
          After receiving a flyer police distributed identifying
          [Hawes] as a burglary suspect, [Krupczak’s
          supervisor] contacted [police detective Andy] Snyder
          about the probation office assisting law enforcement
          in speaking with [Hawes].       On April 19, 2011,
          Krupczak contacted [Hawes] and directed him to
          come to the probation office. Krupczak testified that
          this meeting was unscheduled and his only purpose
          was to direct [Hawes] to the Cheltenham Police
          Department. [Hawes] testified that he believed if he
          did not comply with this direction, he would be

                                  -2-
J-S95020-16


          arrested for violating his probation. When he arrived
          at the police station, [Hawes] told Detective Snyder
          his probation officer directed him to speak with
          police about the burglaries.       [Hawes] filled out
          paperwork indicating his identifying information,
          including phone numbers where he could be reached.
          [Hawes] then submitted to questioning by Detective
          Snyder, the answers to which [Hawes] signed. He
          was never given [warnings of his] Miranda[2] rights,
          told he was free to terminate the meeting, or told he
          was free to leave the police station.
               2
                   Miranda v. Arizona, 384 U.S. 436 (1966).

       Suppression Court     Opinion,   4/4/2012,   at   1-2,   4-5
       (footnote added).

          Thereafter, the police obtained a search warrant for the
       records attached to the cell phone number that [Hawes]
       provided. Those records revealed that the phone (1) was
       not registered to [Hawes], but was under the account of
       Roscoe Williams, and (2) was used near the scenes of the
       burglaries at the times of the burglaries.

          The Commonwealth filed a complaint and information
       against [Hawes], charging him with various crimes related
       to the burglaries.    Prior to trial, [Hawes] moved to
       suppress the evidence found in the Jeep, the evidence
       obtained from his phone records, and his signed answers
       to Detective Snyder’s questioning. The suppression court
       granted [Hawes]’s motion as to his signed answers to the
       questions, but denied it as to the evidence obtained from
       the Jeep and the biographical information contained in his
       police statement.

          [Hawes] proceeded to a jury trial. Evidence offered
       against [Hawes] included, inter alia, the phone records,
       and a report analyzing DNA evidence taken from a Red Bull
       can found in the Jeep, which showed that the individual
       had XY sex chromosomes and that the chance of the
       sample being someone unrelated to [Hawes] was one in
       seven trillion. N.T., 5/9/2012, at 37.

          On May 10, 2012, [Hawes] was convicted of the crimes
       indicated above. [Hawes] was sentenced on September 5,
       2012.

                                  -3-
J-S95020-16



Commonwealth v. Hawes, No. 2931 EDA 2012, unpublished mem. at 1-4

(Pa.Super. filed Aug. 27, 2013). Hawes appealed, and this Court affirmed

his judgment of sentence on August 27, 2013.         On September 26, 2013,

Hawes filed a petition for allowance of appeal with the Pennsylvania

Supreme Court, which was denied on March 19, 2014.

       On December 10, 2014, Hawes filed a pro se PCRA petition, claiming

ineffective assistance of trial counsel.2 On January 2, 2015, the PCRA court

appointed counsel.       On March 2, 2015, Hawes, through counsel, filed an

amended PCRA petition, asserting two 3 ineffectiveness claims and requesting

an evidentiary hearing.       Am. PCRA Pet., 3/2/15, at 3-6.   The PCRA court

held a hearing on March 21 and May 10, 2016. On June 20, 2016, the PCRA

court dismissed Hawes’ amended PCRA petition.

       On July 5, 2016, Hawes filed a pro se notice of appeal along with a pro

se Pennsylvania Rule of Appellate Procedure 1925(b) statement. On July 7,

2016, the PCRA court directed Hawes’ counsel to file a Rule 1925(b)


____________________________________________


       2
        Hawes’ pro se petition contained 22 allegations of ineffective
assistance of counsel. PCRA Pet., 12/10/14.
       3
         While Hawes’ amended PCRA petition listed two main claims of
ineffectiveness, Hawes’ first claim, which asserted trial counsel
ineffectiveness for failing to call Hawes at trial, presented two arguments for
trial counsel’s ineffectiveness. In his pro se response to PCRA counsel’s
Turner/Finley letter, Hawes addressed those arguments separately.
Accordingly, we will address each argument.




                                           -4-
J-S95020-16



statement. On July 21, 2016, Hawes filed a pro se petition for a Grazier4

hearing to waive counsel and/or appoint new counsel.5           That same day,

PCRA counsel filed a statement of intent to file a Turner/Finley letter

pursuant to Rule 1925(c)(4). On October 17, 2016, PCRA counsel filed with

this Court a Turner/Finley letter brief and petition to withdraw as counsel.6

On October 27, 2016, Hawes filed a response with this Court to the petition

to withdraw. On February 15, 2017, Hawes filed a response with this Court

to counsel’s Turner/Finley letter brief.7

       Before we may address the merits of Hawes’ appeal, we must

determine whether his PCRA counsel has satisfied the requirements for

withdrawal under Turner/Finley. Counsel must

            file a “no-merit” letter detailing the nature and extent of
            his review and list[ing] 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, then must conduct its own independent

____________________________________________


       4
           Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
       5
           The PCRA court did not rule on this petition.
       6
        In lieu of a brief, on October 19, 2016, the Commonwealth filed a
letter agreeing with PCRA counsel “that there is no basis in either law or fact
to support [Hawes’] appeal” and “there is no merit to any issue.” Cmwlth.’s
Ltr., 10/19/16.
       7
         Hawes styled this response as an “application for relief.” However,
the filing is a response to counsel’s Turner/Finley letter brief and we shall
treat it as such. To the extent that this “application for relief” is a separate
motion seeking relief from this Court, it is denied with prejudice.



                                           -5-
J-S95020-16


           evaluation of the record and agree with counsel that the
           petition is without merit.

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012) (internal

citation omitted). Counsel also must serve copies of the petition to withdraw

and no-merit letter on the petitioner and advise the petitioner that he or she

has the right to proceed pro se or with privately retained counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa.Super. 2011).

       In his no-merit letter, PCRA counsel states that he reviewed the

record.    Also in the letter, PCRA counsel identifies the issues that Hawes

wishes to raise8 and explains why the issues are meritless.        PCRA counsel

also mailed a copy of the petition and no-merit letter to Hawes and informed

him that, if he sought to continue the appeal, Hawes could retain private

counsel or proceed without counsel.            We conclude that PCRA counsel has

complied with the dictates of Turner/Finley.

       PCRA counsel raises two issues in his Turner/Finley letter brief:

            I.   Whether trial counsel was ineffective         regarding
                 [Hawes]’s failure to testify at trial?

           II.   Whether trial counsel was ineffective for not calling
                 the following witnesses during trial:

                     a. Merceline Hawes

                     b. Raymond Stevenson

____________________________________________


       8
       Hawes’ pro se PCRA petition and his February 15, 2017 response to
the Turner/Finley letter listed additional issues.      However, Hawes’
amended PCRA petition raised two claims of ineffective assistance of
counsel, which PCRA counsel addressed in his Turner/Finley letter.



                                           -6-
J-S95020-16


                    c. Roscoe Williams

                    d. Luvon Paulson

                    e. Daryl Dees

Turner Ltr. Br. at 4 (PCRA court answers omitted).           PCRA counsel’s first

issue in the Turner/Finley letter involves two claims of ineffective

assistance of counsel that fall under Hawes’ failure to testify at trial: (1) trial

counsel failed to advise Hawes on or interfered with his right to testify, and

(2) trial counsel failed to colloquy Hawes on the record or ask the trial court

to do the same.

      In his pro se response, Hawes raised the two issues presented by

PCRA counsel and asserted that PCRA counsel was incorrect in finding these

issues meritless.    Hawes also raised two additional issues and similarly

claimed that PCRA counsel was incorrect for finding them meritless:

            2. Whether trial counsel was ineffective for presentation
               of an inconsistent alibi defense and[/]or not properly
               prepar[ing] alibi witness[?]

                                          ...

            5. Whether trial counsel was ineffective for not
               [ob]jecting to an illegal consecutive sentence
               violates the sub section of burglary statue [sic]
               3502[?]

Hawes’ Turner/Finley response, 2/15/17, at 2.

      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).            We will not disturb the


                                       -7-
J-S95020-16



PCRA court’s factual findings “unless there is no support for [those] findings

in the certified record.” Commonwealth v. Melendez–Negron, 123 A.3d

1087, 1090 (Pa.Super. 2015).

      When analyzing ineffectiveness claims, “[w]e begin . . . with the

presumption that counsel [was] effective.” Commonwealth v. Spotz, 18

A.3d 244, 259-60 (Pa. 2011).        “[T]he [petitioner] 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.

      In his Turner/Finley letter, counsel first addresses the claim that trial

counsel was ineffective for failing to advise Hawes of his right to testify and

failing to ensure that Hawes knowingly, intelligently, and voluntarily waived

his right to testify.   PCRA counsel concludes that the issues are meritless

because trial counsel testified that on multiple occasions, he advised Hawes

of his right to testify but recommended against testifying because it would

open the door to impeachment with a prior burglary conviction, which would

have “torpedoed” the entire alibi defense. Turner/Finley Ltr. Br. at 7.




                                      -8-
J-S95020-16



       In his pro se response, Hawes argues that he hired new counsel9 to

assist at trial because he felt that his trial counsel had not adequately

discussed trial strategy with him. Hawes’ Turner/Finley response, 2/15/17,

at 15-16. Hawes asserts that he did not know he would not testify until the

morning of trial and believed that the trial court would colloquy him on his

right to testify, “as [the courts] do in his home county [of] Philadelphia.”

Id.   Hawes claims that he would have, consistent with his preferred alibi

defense, testified that he was at work during the burglaries. See N.T. PCRA,

5/10/16, at 34-35.

              The decision to testify on one’s own behalf is ultimately
           to be made by the accused after full consultation with
           counsel. In order to support a claim that counsel was
           ineffective for “failing to call the appellant to the stand,”
           [the appellant] must demonstrate either that (1) counsel
           interfered with his client’s freedom to testify, or (2)
           counsel gave specific advice so unreasonable as to vitiate a
           knowing and intelligent decision by the client not to testify
           in his own behalf. [Commonwealth v. Thomas, 783
           A.2d 328,] 334 [Pa.Super. 2001)].           “Counsel is not
           ineffective where counsel’s decision to not call the
           defendant was reasonable.” Commonwealth v. Breisch,
           719 A.3d 352, 355 (Pa.Super. 1998).

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

       The PCRA court found trial counsel’s testimony credible in all respects.

Trial counsel testified that he had spoken with Hawes on numerous
____________________________________________


       9
         While Hawes hired additional counsel immediately before trial, N.T.
PCRA, 5/10/16, at 26-27, it is clear that his claims of trial counsel
ineffectiveness relate to his initial trial counsel, who was Hawes’ actual
advocate both before and during trial.



                                           -9-
J-S95020-16



occasions about his right to testify and counseled Hawes that if he testified

in his own defense, the Commonwealth would impeach him with a prior

burglary conviction. Hawes testified that he had never discussed the issue

with trial counsel, despite admitting that he had met with trial counsel on

multiple occasions. The PCRA court found trial counsel credible and Hawes

incredible.     Under     these    circumstances, we   defer   to   the   credibility

determinations of the PCRA court. Further, we agree with the PCRA court’s

conclusions that trial counsel did not interfere with Hawes’ right to testify

(because Hawes made a knowing, intelligent, and voluntary waiver of that

right), and trial counsel’s actions were reasonable because calling Hawes to

testify would have immediately opened him to impeachment. Id. at 711-12

(finding counsel not ineffective where counsel testified that he had spoken

with appellant numerous times about his right to testify and advised against

testifying because appellant had four prior convictions that could be used

against him).

       We also conclude that trial counsel was not ineffective for failing to

colloquy Hawes on the record or asking the trail court to do so. There is no

requirement that a trial court colloquy a defendant regarding his right to

testify.10 Id. at 712. Further, where it is clear counsel discussed the right
____________________________________________


       10
          PCRA counsel based the argument that trial counsel was ineffective
for failing to ensure Hawes knowingly, intelligently, and voluntarily waived
his right to counsel, in part, on a claim that counsel failed to request a
mandatory on-the-record colloquy on that waiver.



                                          - 10 -
J-S95020-16



to testify with the defendant, counsel is not ineffective. See id. at 711-12.

Here, the trial court found that Hawes’ claim was meritless, “based on the

testimony of both trial counsel and [Hawes], and the admission by [Hawes]

that his trial counsel met with him ten times prior to trial.”    PCRA Order,

6/20/16, at 1 n.1. We agree with the trial court’s conclusion, which is

supported by the record.

      Next, Hawes argues that his trial counsel was ineffective for failing to

call a number of witnesses during trial.

             When raising a claim of ineffectiveness for the failure to
         call a potential witness, a petitioner satisfies the
         performance and prejudice requirements of the Strickland
         [v. Washington, 466 U.S. 668 (1984),] test by
         establishing 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. To
         demonstrate . . . prejudice, a petitioner “must show how
         the uncalled witnesses’ testimony would have been
         beneficial under the circumstances of the case.” Thus,
         counsel will not be found ineffective for failing to call a
         witness unless the petitioner can show that the witness’s
         testimony would have been helpful to the defense. A
         failure to call a witness is not per se ineffective assistance
         of counsel for such decision usually involves matters of
         trial strategy.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012).                  We will

address each witness separately.

      Hawes first argues that trial counsel was ineffective for failing to call

his mother, Merceline Hawes, to testify.      At the PCRA hearing, Merceline



                                     - 11 -
J-S95020-16



testified that she last saw her red Jeep Cherokee on April 11, 2011, after

Marwan Hawes parked the car on Alma Street. N.T. PCRA, 3/21/16, at 59-

60.   She then stated that she stayed at her daughter Baheejah’s house

during the week. Id. at 61-62. When she returned on April 16, 2011, she

did not see the vehicle on Alma Street and, after finding out that her friend

Raymond Stevenson had been in her home,11 she searched for Stevenson at

locations where he picked up drugs.            Id. at 66.   When she could not find

Stevenson, she reported the car stolen.            Id. at 76.   She then stated that

Montgomery County law enforcement12 contacted her about the car through

her daughter Lakeshia and that Stevenson came to her to talk about the car

a few days later. Id. at 64-66. However, on cross-examination, Merceline

testified that she knew that Stevenson had leased the car out for drugs

before Montgomery County law enforcement contacted her. Id. at 77. She

also testified that in early 2011, Luvon Paulson took possession of Hawes’

cell phone. Id. at 67-68.

       Trial counsel testified that he decided not to call Merceline as a witness

because counsel thought “she would be a terrible witness” and her testimony

would be repetitive of testimony given by Hawes’ sister, Lakeshia, who


____________________________________________


       11
        Raymond Stevenson had access to Merceline’s home.                N.T. PCRA,
5/10/16, at 64.
       12
        Neither the Commonwealth nor Merceline specified                      which
Montgomery County law enforcement unit contacted Merceline.



                                          - 12 -
J-S95020-16



counsel found to be “solid and credible.” Id. at 26-27, 47. The PCRA court

denied relief, concluding that Merceline’s testimony “was in part duplicative

of another defense witness presented at trial, in part contradictory to that of

Raymond      Stevenson,      and    the   witness’s      testimony   appeared     overall

incredible given her bias towards [Hawes] and her use of an alias.” 13 PCRA

Order, 6/20/16, at 2 n.4.

       The PCRA court’s conclusion is supported by the record. Trial counsel’s

decision not to call Merceline was a matter of trial strategy, as counsel

concluded that Lakeshia would be a stronger witness. Further, Hawes failed

to show that Merceline’s testimony would have been beneficial. Merceline’s

testimony would have been cumulative of Lakeshia’s testimony, see

Commonwealth           v.   Tharp,     101     A.3d     736,   758   (Pa.Super.   2014)

(concluding defendant failed to show prejudice where testimony cumulative

of evidence already presented in appellant’s defense), and Merceline’s

testimony at the PCRA hearing was inconsistent as to when Stevenson told

her that he had loaned the car in exchange for drugs.

       Next, PCRA counsel raises the issue whether trial counsel was

ineffective for failing to call Stevenson.            Stevenson testified at the PCRA

hearing that he had loaned Merceline’s car to a person named “J.P.” in
____________________________________________


       13
         While cross-examining Hawes on his phone records, the
Commonwealth introduced letters and receipts for payments into Hawes’
inmate account from a Merceline “Boatwright,” bearing the signatures of
“Mom” or “Mommy.” N.T. PCRA, 5/10/16, at 43-45.



                                          - 13 -
J-S95020-16



exchange for crack cocaine. N.T. PCRA, 3/21/16, at 93. He stated that J.P.

used the car multiple times between April 11, 2011 and April 16, 2011. Id.

Stevenson also testified that he told Merceline that he had loaned the car

out when she approached him and told him that she had reported the car

stolen.   Id. at 93-94.       Stevenson further testified that once he knew

Montgomery County law enforcement was looking for the vehicle, he did not

provide them information because he “was nervous about what was going

on.” Id. at 94. The PCRA court denied relief, concluding that Stevenson’s

testimony was contradictory to Merceline’s testimony, Stevenson had a

“significant   criminal   history,”   and   Stevenson   “did   not   provide   any

information regarding the third party who allegedly [took the car] to the

authorities prior to the time of trial.” PCRA Order, 6/20/16, at 2 n.5.

      We agree with the PCRA court’s conclusions, which are supported by

the record. Under these circumstances, we agree with the PCRA court that

trial counsel was not ineffective for failing to call Stevenson because

Stevenson’s testimony “was not necessary to avoid prejudice to [Hawes] and

trial counsel demonstrated a reasonable basis for failing to call [him] at

trial.” See id. at 2

      PCRA counsel next addresses the claim that trial counsel was

ineffective for failing to call Roscoe Williams. Williams testified at the PCRA

hearing that in January 2011, he permitted Hawes to use the cell phone later

implicated in the burglaries but Hawes returned the phone to Williams in

February 2011 because the cell phone plan was too expensive. N.T. PCRA,

                                       - 14 -
J-S95020-16



3/21/16, at 113. Williams stated he gave the phone to Luvon Poulson, who

used the phone between March 2011 and May 2011.                Id. at 113-14.

According to Williams, Poulson returned the phone to Williams, who

cancelled the plan.          Id. at 115.       At the end of examination, the

Commonwealth introduced a certified record of Williams’ robbery conviction.

The PCRA court concluded that William’s testimony “was not necessary to

avoid prejudice to [Hawes] and trial counsel demonstrated a reasonable

basis for failing to call [him] at trial” because Williams was “incredible and

had a significant criminal history,” and his testimony “would have been

rebutted by evidence presented by the Commonwealth of the cell phone’s

location.”14 PCRA Order, 6/20/16, at 2 n.6.

       We agree with the trial court’s conclusion that this issue is meritless.

The Commonwealth would have impeached Williams with a crimen falsi

robbery conviction if he had testified at trial.        See Pa.R.Evid. 609(a);

Commonwealth v. Bryant, 855 A.2d 726, 746 (Pa. 2004).              Further, the

Commonwealth would have rebutted the testimony with testimony of a cell

____________________________________________


       14
         The PCRA court also found that Williams would have been
impeached by a prior statement given to police about the cell phone. See
PCRA Order, 6/20/16, at 2. We do not find support for the PCRA court’s
conclusion that had Williams testified at trial, he would have been impeached
using a prior inconsistent statement. The notes of testimony do not show
that the Commonwealth introduced a prior inconsistent statement at the
PCRA hearing. Regardless of whether such a statement was introduced, we
conclude that the PCRA court’s conclusion that the claim is meritless is
correct.



                                          - 15 -
J-S95020-16



phone expert, who testified at the PCRA hearing that the cell phone was two

blocks away from Hawes’ residence throughout the early portion of April

2011. N.T. PCRA, 5/10/16, at 114-15.

        Next, Hawes’ counsel addresses trial counsel’s failure to call Luvon

Poulson and Darryl Dees. Hawes asserts that Poulson and Dees were critical

to his defense because Poulson would have testified that he possessed the

cell phone linked to the burglaries and Dees would have testified that when

the burglaries occurred, he and Hawes were working for a contractor. The

PCRA court found that Hawes waived this argument because he failed to

present Paulson and Dees at the PCRA hearing. See PCRA Order, 6/20/16,

at 2.

        We disagree with the PCRA court that Hawes waived this argument

because he failed to produce these witnesses at his PCRA hearing.             Cf.

Commonwealth v. Lopez, 739 A.2d 485, 496 (Pa. 1999) (suggesting that

affidavits could provide “objective proof” that witnesses trial counsel failed to

call “actually exist, or that they were ready, willing and able to testify on his

behalf at his trial”).      However, we conclude that the issue is meritless.

Hawes presented the affidavits of both Poulson and Dees, but these one-

page documents do not confirm that Poulson or Dees would have been

available to testify at Hawes’ trial.15 Further, it is not clear that Poulson’s or

____________________________________________


        15
        Poulson and Dees’ failure to appear for the PCRA hearing further
suggests their unavailability.



                                          - 16 -
J-S95020-16



Dees’ testimony would have been beneficial to Hawes. Poulson’s proposed

testimony was that he possessed the cell phone from March 2011 to May

2011. However, the Commonwealth’s cell phone expert, who placed the cell

phone within two blocks of Hawes’ residence throughout the early portion of

April 2011, would have rebutted Poulson’s proposed testimony. 16 See, N.T.

PCRA, 5/10/16, at 84-87.          Dees’ proposed testimony, that he and Hawes

were at work, would have been cumulative and repetitive of Molina’s

testimony that Hawes was working on a job site throughout the week of the

burglaries. See N.T. Trial, 5/9/12, at 195, 211. Because Hawes failed to

prove that these witnesses would have been available to testify or that their

testimony would have been beneficial, we conclude that trial counsel was not

ineffective for failing to call these witnesses.

       In his pro se response, Hawes raised two additional issues that he

believes are meritorious, but argues that “PCRA counsel err[]ed in

determining that these claims lacked merit and that they did not require[]

the [P]CRA [c]ourt to apply any governing law to the facts.”          Hawes’

Turner/Finley response, 2/15/17, at 2. These issues are waived on appeal

because Hawes did not include them in his amended PCRA petition.         See


____________________________________________


       16
        According to Pennsylvania Department of Transportation records,
Poulson resided at 2919 West Arizona St. in Philadelphia. N.T., 5/10/16, at
96-97. Hawes lived at 5605 Warrington Avenue in Philadelphia. Id. at 89.
The Commonwealth’s cell phone expert testified that these addresses are
approximately five miles apart. Id. at 93.



                                          - 17 -
J-S95020-16



Commonwealth v. Spotz, 18 A.3d 244, 320 (Pa. 2011). Additionally, even

if we concluded that Hawes preserved these issues for appeal, we would find

that he is not entitled to relief because the issues are meritless.

      Hawes first argues that trial counsel was ineffective for failing to

prepare a consistent alibi defense and failing to prepare alibi witness Robert

Molina for trial.   Hawes’ Turner/Finley response, 2/15/17, at 12.       Hawes

contends that trial counsel did not bring Molina to the court’s attention until

the morning of trial, when trial counsel asserted “difficulty . . . locating

[Molina].” Id. Further, Hawes asserts that trial counsel did not familiarize

himself with Molina, as evinced by referring to the witness as “Bobby

Merl[i]no” and the fact that while trial counsel indicated in his opening that

Molina would testify that Hawes worked the entire month of April, Molina

testified on cross-examination that Hawes did not come to work after April

2011. Id. at 10-12.

      This issue is meritless. Molina testified on cross-examination that he

learned Hawes had been arrested in April 2011, when Hawes did not come

into work. N.T. Trial, 5/9/12, at 208. However, Molina did not say when in

April 2011 Hawes failed to come into work.       Further, after Molina testified

that he heard this information from Sean Squire, trial counsel objected to

the testimony as hearsay.        Id. at 209.      Trial counsel attempted to

rehabilitate Molina by asking him if “there [was] any doubt in [his] mind that

[Hawes] was at the job site the entirety of those days, from April 11th to

April 15th,” to which Molina responded “no.” Id. at 211. Further, before the

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first day of trial, trial counsel informed the trial court that he had attempted

to find the “Bobby Merlino” referenced in the grand jury testimony and had

asked Hawes about “Bobby.” N.T. Trial, 5/8/12, at 6-8. Once trial counsel

determined who Molina was, he sent an investigator to talk to Molina, id. at

8, and spoke to Molina personally at least a few days before trial, N.T. Trial,

5/9/12, at 207.17        Trial counsel also subpoenaed Molina to testify and

discussed details with Molina before trial.         N.T. Trial, 5/9/12, at 196-97.

Apart        from   references   to    counsel’s   pretrial   discussion   with   the

Commonwealth and trial court about Molina’s alibi testimony, Hawes

presents no evidence that trial counsel failed to prepare Molina. Contrary to

Hawes’ assertions, it is clear that trial counsel attempted to prepare Molina

in the short amount of time he had to do so.

        Next, Hawes argues that his conviction for possessing an instrument of

crime (“PIC”) should have merged, for sentencing purposes, with his

conviction for burglary. Hawes’ Turner/Finley response, 2/15/17, at 17-18.

First, Hawes claims that his sentence on the PIC conviction violates 18

Pa.C.S. § 3502(d), which prohibits sentencing on both the “burglary and . . .

the offense which it was his intent to commit after the burglarious entry or

for an attempt to commit that offense, unless the additional offense


____________________________________________


        17
        On cross-examination, Molina confirmed that he had spoken to trial
counsel “last Friday.” N.T. Trial, 5/9/12, at 207. Molina testified on
Wednesday, May 9, 2012.



                                          - 19 -
J-S95020-16



constitutes a felony of the first or second degree.”      Alternatively, Hawes

argues that his convictions merge under section 9765 of the Sentencing

Code.18

       Section 3502 of the Crimes Code defines burglary:

            (a) Offense defined.--A person commits the offense of
            burglary if, with the intent to commit a crime therein, the
            person:

               (2) enters a building or occupied structure, or
               separately secured or occupied portion thereof that is
               adapted for overnight accommodations in which at the
               time of the offense no person is present;

18 Pa.C.S. § 3502. Section 907(a) of the Crimes Code defines the crime of

PIC:

            (a) Criminal instruments generally.--A person commits
            a misdemeanor of the first degree if he possesses any
            instrument of crime with intent to employ it criminally.

18 Pa.C.S. § 907(a).




____________________________________________


       18
            Section 9765 provides that:

            [n]o crimes shall merge for sentencing purposes unless the
            crimes arise from a single criminal act and all of the
            statutory elements of one offense are included in the
            statutory elements of the other offense. Where crimes
            merge for sentencing purposes, the court may sentence
            the defendant only on the higher graded offense.

42 Pa.C.S. § 9765.



                                          - 20 -
J-S95020-16



       Both arguments are meritless. The record shows that Hawes intended

to commit theft by unlawful taking,19 not PIC, after breaking into the homes.

With respect to Hawes’ section 9765 argument, burglary contains at least

one element that is not contained within PIC — entering a building or

occupied structure — and PIC contains at least one element that is not

contained within burglary — possessing an instrument of crime. Therefore,

these crimes do not merge for sentencing purposes.

       Order affirmed. Motion to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




____________________________________________


       19
            18 Pa.C.S. § 3921(a).



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