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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERVIN WARFIELD WHITBY

                            Appellant                  No. 179 MDA 2014


                Appeal from the PCRA Order December 30, 2013
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0000054-2010


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                               FILED MARCH 18, 2015

       Ervin Warfield Whitby appeals from the order entered on December

30, 2013, in the Court of Common Pleas of York County, denying his petition

filed pursuant to the Post Conviction Relief Act,1 following an evidentiary

hearing. Whitby contends trial counsel was ineffective in failing to (1) call a

witness, (2) request a mistrial, and (3) file a petition for allowance of appeal.

See Whitby’s Brief at 4. Based upon the following, we affirm.

       This Court, in Whitby’s direct appeal, reiterated the trial court’s

summary of the factual history of the case:

           On November 2, 2008, [L.N.] was working at Shadowfax,
           a group home for mentally and physically disabled
           people. [N.T., 11/8-10/10, at 70-71.] At approximately
____________________________________________


1
    42 Pa.C.S. §§ 9541–9546.
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         8:30 p.m., [L.N.] was in the living room when there was
         a knock at the front door. [Id. at 73-74.] David Fisher
         [“David”], a resident of the group home, unwittingly
         opened the door and two men pushed past him,
         demanding keys to the 2005 Dodge Ram van outside.
         [Id. at 74-75.] While one man began to molest [L.N.],
         the other man, identified by [L.N.] as [Whitby], pushed
         David back into his room. [Id. at 75-79.] When David
         shouted, “I’m calling 911!” both men ran out [of] the
         door, taking $31.00 [that L.N.] had removed from a lock
         box as well as the van keys that [she] had handed one of
         the men. [Id. at 79.] After the men left, [L.N.] shut and
         locked the door and saw that the van was gone. [Id. at
         79-80.]

     Trial Court Opinion, 6/6/11, at 3 (unnumbered).

Commonwealth v. Whitby, 46 A.3d 809 (Pa. Super. 2012) (unpublished

memorandum).

     Whitby proceeded to a trial with a jury on November 8, 2010.         The

evidence showed that on November 4, 2008, at approximately 6:10 p.m.,

police stopped Jody Witter, Whitby’s co-defendant, in the Shadowfax van.

N.T., 11/8/2010, at 166–167. Witter was the only person in the van. Id. at

166. Detective Robert Kane of the Philadelphia Police Department recovered

a tan-colored sweatshirt from Witter when Witter was taken into custody.

Id. at 169. A DNA test matched the sweatshirt to Whitby. Id. at 146–148.

Further, at trial, L.N. identified Whitby by voice and appearance as one of

the two individuals involved in the incident. Id. at 77, 88. Whitby’s brother,

Maurice, testified that Whitby had made statements against his own interest

when he last saw Whitby, at the “end of October, early November,”

approximately “two years ago,” i.e. 2008.      Id. at 179.   Maurice testified



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that Whitby said that he had gotten $20.00 and that he had a stolen car to

get to Wilmington. Id. at 181–182.

        The jury convicted Whitby of two counts of theft by unlawful taking

and one count each of robbery, burglary and criminal conspiracy (robbery).2

The trial court ultimately sentenced Whitby to an aggregate sentence of 13

to 26 years’ imprisonment.         On February 2, 2012, this Court affirmed the

judgment of sentence.          Whitby, supra.    Whitby subsequently filed this

timely PCRA petition on January 31, 2013.3 Counsel was appointed, and the

PCRA court conducted an evidentiary hearing on August 29, 2013. Following

the PCRA court’s denial of relief on December 30, 2013, this appeal

followed.4

        The principles that guide our review are as follows:

        In reviewing the denial of PCRA relief, we examine whether the
        PCRA court’s determination “is supported by the record and free
        of legal error.” Commonwealth v. Robinson, 82 A.3d 998,
        1005 (Pa. 2013). …

        To obtain relief on a claim of ineffective assistance of counsel, a
        PCRA petitioner must satisfy the performance and prejudice test
        set forth in Strickland v. Washington, 466 U.S. 668, 687, 104
        S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In Pennsylvania, we have
        applied the Strickland test by looking to the following three
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2
    See 18 Pa.C.S. §§ 3921, 3701, and 3502, and 903, respectively.
3
    See 42 Pa.C.S. § 9545(b)(1) (PCRA time requirements).
4
  Whitby timely complied with the trial court’s order to file a statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), within the
extension of time granted by the PCRA court.



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     elements that must be satisfied: (1) the underlying claim has
     arguable merit; (2) counsel had no reasonable basis for his
     actions or failure to act; and (3) the PCRA petitioner suffered
     prejudice as a result of counsel’s error, with prejudice measured
     by whether there is a reasonable probability that the result of
     the proceeding would have been different. Commonwealth v.
     Pierce, 515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Counsel is
     presumed to have rendered effective assistance of counsel.
     Commonwealth v. Montalvo, 604 Pa. 386, 986 A.2d 84, 102
     (Pa. 2009). Further, this Court is not required to analyze the
     elements of an ineffectiveness claim in any particular order; if a
     claim fails under any necessary element, the Court may proceed
     to that element first. Commonwealth v. Albrecht, 554 Pa. 31,
     720 A.2d 693, 701 (Pa. 1998). Additionally, counsel cannot be
     deemed ineffective for failing to raise a meritless claim.
     Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (Pa.
     2006).


Commonwealth v. Rivera, ___ A.3d ___, ___ [2014 Pa. LEXIS 3529] (Pa.

Dec. 29, 2014).

     Whitby first claims that trial counsel was ineffective for failing to call

Jody Witter, his co-defendant who was tried separately, as a witness.

     “Where a[n appellant] claims that counsel was ineffective for
     failing to call a particular witness, we require proof of that
     witness’s availability to testify, as well an adequate assertion
     that the substance of the purported testimony would make a
     difference in the case.” Commonwealth v. Clark, 599 Pa. 204,
     961 A.2d 80, 90 (Pa. 2008). With respect to such claims, our
     Court has explained that:

         the [appellant] must show: (1) that the witness existed;
         (2) that the witness was available; (3) that counsel was
         informed of the existence of the witness or should have
         known of the witness’s existence; (4) that the witness
         was prepared to cooperate and would have testified on
         appellant’s behalf; and (5) that the absence of the
         testimony prejudiced appellant.




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      Commonwealth v. Brown, 2001 PA Super 18, 767 A.2d 576,
      581-582 (Pa. Super. 2001), quoting Commonwealth v.
      Fletcher, 561 Pa. 266, 750 A.2d 261, 275 (Pa. 2000),
      abrogated on other grounds by Commonwealth v. Freeman,
      573 Pa. 532, 827 A.2d 385 (Pa. 2003). Thus, trial counsel will
      not be found ineffective for failing to investigate or call a witness
      unless there is some showing by the appellant that the witness’s
      testimony would have been helpful to the defense.
      Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305, 1319
      (Pa. 1996). “A failure to call a witness is not per se ineffective
      assistance of counsel for such decision usually involves matters
      of trial strategy.” Id.

Commonwealth v. Michaud, 70 A.3d 862, 867–868 (Pa. Super. 2013).

      At the PCRA hearing, trial counsel testified that he had discussed

Witter with Whitby. He also testified that he never spoke to Witter. When

questioned why he did not call Witter as a witness, trial counsel explained:

      Well, number one, the man’s already been convicted for this
      offense. Credibility is completely out the window. Having him
      sit up here and say no, Mr. Whitby had nothing to do with this
      whatsoever, through my experience, the jury is going to look at
      him and say – maybe it’s speculation – they’re going to look at
      him and say that you’ve already been convicted and you’re just
      trying to help your friend out and we’re not going to believe a
      word you say.

      And they can bring in past record on him, and I know from
      looking back, he had an extensive record, some of which could
      be brought into court.

      And also, now with him, they can then question him as to how
      they know Mr. Whitby, and then it opens up the whole can of
      worms as to how these men knew each other from prison.

      And I don’t trust Mr. Witter on the stand because I read through
      the transcripts of his other trial, and it was a circus, and me
      calling somebody that’s going to create a circus for Mr. Whitby, I
      was concerned it would be a one-way ticket to a quick conviction
      and the man would have no chance – my client would have no
      chance at trial.

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N.T., 8/29/2013, at 22–23.

        Witter did not testify at the PCRA hearing, but the Commonwealth

agreed that Witter would testify as he stated in his affidavit. See id. at 57.

In his affidavit, Witter claimed he would have testified he never made any

statements to Detective Dony Harbough of York County and Detective Kane,

and he did not make any statements that implicated Whitby in a crime. See

Affidavit of Jody Witter, 11/15/2012.5

        Based on our review, we agree with the PCRA court no relief is due on

this claim, based upon Whitby’s failure to show that counsel’s actions lacked

a reasonable basis, and that he suffered prejudice.         Here, trial counsel’s

explanation of his decision not to call Witter, based on his reading of Witter’s

trial transcripts, constituted a reasonable trial strategy. Furthermore,

although Whitby maintains that “[h]aving the jury see a person (Mr. Witter)

who was responsible for the crimes testify very easily could have changed

the verdict,”6 Whitby ignores the consequences of exposing Witter to cross–

examination regarding Witter’s criminal record, and his association with

Whitby in prison.     Accordingly, we conclude this claim fails.
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5
 We note that prior to this November 15, 2012, affidavit, Witter, in his own
PCRA proceeding, had argued DNA evidence taken from the hoody linked
Whitby to the offenses. Commonwealth v. Witter, 38 A.3d 934 [126 MDA
2011] (Pa. Super. 2011) (unpublished memorandum, at 7), appeal denied,
42 A.3d 293 (Pa. 2012).
6
    Whitby’s Brief, at 15-16.



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        Next, Whitby claims that trial counsel was ineffective in failing to

object and request a mistrial during the testimony of Detective Kane.          It

bears mention that Detective Kane did not testify in court, but rather

testified at trial via speakerphone. The testimony at issue occurred during

cross examination. Specifically, Kane testified Witter told him, at the time

the van was recovered, that Whitby was with Witter in the stolen van in

Wilmington, Delaware, prior to the van’s recovery in Philadelphia.          N.T.,

11/8/2010, at 172. Thereafter, trial counsel requested a short recess, and

then moved to strike Kane’s testimony about Witter’s statements, and asked

the court to issue a cautionary instruction. The trial court agreed, and when

the jury returned, the trial court instructed the jury that Witter’s statement

was hearsay and it should not be considered during their deliberations.7


____________________________________________


7
    The trial judge instructed the jury as follows:

        Ladies and gentlemen, one matter to address before we begin
        taking more testimony. When Detective Kane testified, this was
        the Philadelphia detective, at one point, one or two points, he
        made some reference to statements that were made by another
        individual, the individual driving the van that was recovered in
        Philadelphia. He made some statements about things he said to
        him about what he was wearing or not wearing.

        For the most part, statements, out-of-court statements where
        one person is repeating what someone else said is considered
        hearsay. Generally that is not admissible, and under the facts of
        this case, those statements would not be admissible, so I’m
        instructing you at this time not to consider any statements that
        were repeated by Detective Kane based on information or
(Footnote Continued Next Page)


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      Presently, Whitby claims this instruction was insufficient to cure the

prejudice of the statement, and, consequently, trial counsel was ineffective

for failing to request a mistrial. The PCRA court rejected Whitby’s argument,

opining that “[t]he cautionary instruction was a reasonable basis to pursue,

and [Whitby] agreed to it during the trial.”          PCRA Court Opinion,

12/30/2013, at 7. The PCRA court further determined that Whitby “cannot

argue prejudice from an issue that the Judge addressed at trial and [Whitby]

approved.” Id. We agree with the PCRA court.

      Here, trial counsel consulted with Whitby, Whitby agreed with

counsel’s strategy, and the trial court gave a curative instruction as

requested. It is well settled that absent evidence to the contrary, a jury is

presumed to have followed a court’s curative instructions. Commonwealth

v. Spotz, 896 A.2d 1191, 1224 (Pa. 2006). Accordingly, we conclude the

PCRA court did not err in finding Whitby’s second claim does not support his

request for post collateral relief.

      Finally, Whitby claims that trial counsel was ineffective for not

petitioning for allowance of appeal to the Pennsylvania Supreme Court.

      “[W]hile a defendant does not have an automatic right to an appeal in

the Supreme Court, he has a right to file a PAA, ‘provided that appellate
                       _______________________
(Footnote Continued)

      statements from the other individual, I believe identified as Mr.
      Witter who was driving the van.

N.T., 11/8/2010, at 175–176.



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counsel believes that the claims that a petitioner would raise … would not be

completely frivolous.’” Commonwealth v. Ellison, 851 A.2d 977, 979 (Pa.

Super. 2004), citing Commonwealth v. Liebel, 825 A.2d 630, 635 (Pa.

2003).

      We note that in Whitby’s direct appeal, he challenged the sufficiency

and weight of the evidence, and that this Court, on February 7, 2012,

rejected those claims. See Whitby, supra. Counsel then informed Whitby

that this Court had affirmed the judgment of sentence, and asked him if he

wanted to proceed.    N.T., 8/29/2013, at 32.     Whitby responded by letter,

dated February 20, 2012, stating, “I will like to have you push for the issue

resting on judicial discretion with declaring a mistrial.” Id. at 54–55.

      The PCRA court, in denying relief on this ineffectiveness claim, opined:

             Attorney Gross testified that he appealed the jury’s verdict
      to the Superior Court and challenged the ruling on grounds of
      sufficiency and weight of the evidence. This appeal was denied,
      and Attorney Gross notified the Defendant and asked him if he
      wished to proceed. [Whitby] then thanked Attorney Gross for his
      strong issues raised on appeal, and [Whitby] asked to add new
      issues for an appeal to the Pennsylvania Supreme Court.
      Attorney Gross testified that it was his understanding that he
      could not appeal new issues to the Supreme Court that were not
      first raised to the Superior Court, so he decided not to file a
      petition for allowance of appeal with the Supreme Court.

             This Court agrees with Attorney Gross’s understanding of
      the appellate process. Issues must be preserved on appeal, so
      the lower courts have an opportunity to research and adjudge
      the issues raised by a defendant. [Whitby] cannot choose new
      issues to appeal to the Supreme Court because former issues
      failed in the Superior Court. The mistrial issue was not preserved
      for appeal to the Supreme Court, and because it was not
      preserved, the lower courts were never able to offer opinion on

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      the matter. This Court concludes that not only does this claim of
      ineffectiveness lack arguable merit but Attorney Gross’s decision
      also had a reasonable basis. Attorney Gross’s decision not to file
      new issues with the Supreme Court was not only reasonable but
      the proper course of action. For these reasons, to the extent
      [Whitby] asks for PCRA relief regarding an appeal to the
      Pennsylvania Supreme Court, this Court concludes that [Whitby]
      has failed to satisfy the [ineffectiveness] standard ….

PCRA Court Opinion, 12/30/2013, at 8-9 (record citations omitted).          We

agree with this analysis.

      Here, the mistrial issue was not raised on direct appeal, and,

consequently, was not preserved for review. See Pa.R.A.P. 302 (“Issues not

raised in the lower court are waived.”).      Since the Pennsylvania Supreme

Court would not be able to review Whitby’s waived claim, we conclude

counsel’s reason for failing to file a petition for allowance of appeal was

justified. See, e.g., Commonwealth v. Rigg, 84 A.3d 1080, 1088 (Pa.

Super. 2014) (counsel was not per se ineffective in not filing a petition for

allowance of appeal where the lone issue appellant wished to be reviewed

was a discretionary sentencing claim that the Supreme Court is generally

statutorily   precluded     from   reviewing).   Accordingly,   Whitby’s   final

ineffectiveness claim warrants no relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2015




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