J-S02025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JAMES EDWARD ARMSTRONG                     :
                                               :   No. 1337 EDA 2017
                       Appellant

                  Appeal from the PCRA Order March 22, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0005475-2011


BEFORE:       BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.:                                 FILED MAY 31, 2018

        Appellant James Edward Armstrong appeals from the order dismissing

his timely first petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. Appellant claims that the PCRA court erred by (1)

concluding that the issues raised in his second amended petition, which was

filed without leave of court, were waived; and (2) denying his ineffective

assistance of counsel claims without a hearing. We affirm.

        We previously set forth the facts of this case as follows:

        On May 22, 2007, at approximately 11:53 p.m., police responded
        to a report of a shooting at Patterson and Barclay Streets in
        Chester, Pennsylvania. Upon arriving, the officers discovered an
        individual, later identified as Eric Caldwell (“the victim”), who was
        found lying on the ground with gunshot wounds to his back.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       Witnesses placed [Appellant] and his co-defendant, Rashad
       Ishmail (“Ishmail”) at times inside and outside an establishment
       known as the “5 Street Bar” on the date of the murder. Further
       testimony indicated that the two defendants were initially inside
       the bar, and then stepped outside the bar at the same time the
       victim drove his vehicle in front of the bar. Craig Gibson
       (“Gibson”) indicated that after seeing both defendants inside the
       bar, he stepped outside the bar and then saw the victim pull up in
       a car.[1] According to Gibson, the victim greeted him but their
       conversation was interrupted when Ishmail, who had exited the
       bar with Appellant, began to argue with the victim, asking him
       “[w]here the money at?” N.T. (Preliminary Hearing), 9/23/11, at
       22. Although Gibson stated that he could not hear the victim’s
       reply, Gibson next observed Ishmail punch the victim in the face.

       Gibson stated that after Ishmail punched the victim, the victim
       ran around the corner and Ishmail and Appellant pursued him.
       Gibson stated that he next saw Appellant pull out a gun and
       beg[i]n shooting in the victim’s direction. Fearing he would be
       shot, Gibson turned around and headed back to the bar. According
       to Gibson, he later returned and found the victim on the ground
       gasping for air.

       Commonwealth witness Jimmy Crawford (“Crawford”) testified
       that on the night in question, he had been standing outside when
       he saw the victim walking up the street. As the victim quickened
       his pace, Crawford saw somebody else run around the corner and
       start shooting at the victim. According to Crawford, the victim fell
       to the ground and the gunman walked over to the victim, shot him
       three or four more times, and then walked around the corner.

       Investigating the crime scene, William Costello, of the Delaware
       County Criminal Investigation Division, located eight spent shell
       casings and two projectiles. Mr. Costello testified that some of
       the shell casings were found seven to ten feet from the victim’s
       body. The parties also stipulated that in addition to the shell
       casings and projectiles, the police recovered a nine-millimeter
       handgun and a .357 handgun from a car on the 200 block of Pusey
____________________________________________


1 Gibson testified at the preliminary hearing, but was killed prior to trial. An
audio recording of Gibson’s preliminary hearing testimony was played for the
jury at trial and copies of the testimony were distributed to the jurors so they
could follow along. During deliberations, the jury requested and was given a
copy of the transcript that they reviewed during trial.

                                           -2-
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     Street. The jury subsequently heard testimony from ballistic
     experts that the projectile and eight shell casings were all fired
     from the nine-millimeter handgun.

     Another Commonwealth witness, Darrell Roberts (“Roberts”),
     provided a written statement to the police that indicated he heard
     fifteen gunshots on the night of the incident. He also previously
     identified Ishmail and Appellant from photographic arrays.
     Notwithstanding this written statement, at trial, Mr. Roberts
     declared that he knew nothing about the incident. He also
     testified that [he] did not know either of the two defendants,
     though he had previously included the nicknames of each
     defendant in his written statement.

     The jury also heard the testimony from Steven Cooper (“Cooper”),
     who at one time shared a jail cell with Appellant. Mr. Cooper
     testified that Appellant admitted that he killed the victim because
     the victim “owe his man some money.” N.T., 3/6/12, at 96.
     Another Commonwealth witness, Michael Lane (“Lane”), who
     identified himself as Appellant’s first cousin, also testified that
     Appellant told him he killed the victim because “he owe his man
     money.” N.T., 3/7/12, at 9; see Trial Court Opinion, 10/25/12,
     at 1-5.

     After their arrest, Appellant and Ishmail were tried before a jury
     in March 2012. Appellant was found guilty of first-degree murder
     and the firearms violation. Ishmail was acquitted on all charges.
     On May 17, 2012, the trial court sentenced Appellant to life
     imprisonment for the murder conviction and a consecutive three
     and one-half to seven years for the firearms violation.

Commonwealth v. Armstrong, No. 2427 EDA 2012 at 1-2 (Pa. Super. filed

July 25, 2013) (unpublished mem.).

     Following his conviction, Appellant filed a direct appeal.    This Court

affirmed Appellant’s judgment of sentence on July 23, 2013. Id. On March

5, 2014, the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal. See Commonwealth v. Armstrong, 87 A.3d 317 (Pa.

2014) (table).


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        On August 4, 2014, Appellant filed a timely pro se PCRA petition. Henry

DiBenedetto-Forrest, Esq. (Attorney DiBenedetto-Forrest) was appointed to

represent Appellant and filed an amended petition on Appellant’s behalf on

September 9, 2015.2           On February 10, 2016, the PCRA court filed a

Pa.R.Crim.P. 907 notice of intent to dismiss the first amended petition without

a hearing.

        The PCRA court subsequently granted several extensions for Appellant

to file a 907 response.3 On March 28, 2016, Appellant moved to waive his

right to counsel. After holding a Grazier4 hearing on June 16, 2016, the PCRA

court accepted Appellant’s waiver of counsel and removed Attorney

DiBenedetto-Forrest from the case.             Thereafter, the PCRA court granted

another extension for Appellant to file a 907 response by September 1, 2016.

        On July 21, 2016, Michael J. Malloy, Esq. (Attorney Malloy) entered his

appearance.5 At that time, Attorney Malloy sent a letter to the PCRA court
____________________________________________


2 In the first amended petition, Appellant alleged that trial counsel was
ineffective for failing to object to the jury’s review of Craig Gibson’s
preliminary hearing transcript.       First Amended Petition, 9/9/15, at 3
(unpaginated).      Additionally, Appellant asserted that trial counsel was
ineffective for failing to object to the trial court’s instruction that the jury
should consider and weigh Gibson’s preliminary hearing testimony as if the
testimony had been presented by a live witness. Id. at 4.

3   Appellant filed these requests for extensions pro se.

4   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).

5Attorney Malloy appears to have been privately retained by Appellant. We
note that Attorney Malloy represented Appellant at the preliminary hearing in



                                           -4-
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requesting an additional thirty days “to file an amended PCRA petition, if

necessary.” Letter, 7/26/16.

       On August 3, 2016, a back-up judge6 issued an order granting a thirty-

day extension. Order, 8/3/16. However, on August 16, 2016, the PCRA court

issued an amended order stating that “counsel shall file a response to the

Notice of Intent to Dismiss filed on February 10, 2016 no later than August

30, 2016.” Order, 8/16/16.

       On August 31, 2016, Attorney Malloy filed a second amended petition

which raised new claims,7 but did not respond to the PCRA court’s 907 notice

____________________________________________


the instant case, but did not represent him at trial. As discussed below,
Attorney Malloy raised several issues, some of which pertain to a preliminary
hearing witness and trial counsel’s various failures with respect to
investigating the witness’s criminal history.

6 The record indicates that the original extension was granted by a back-up
judge (the Honorable John P. Capuzzi), rather than the Honorable James P.
Bradley, who had otherwise presided over the trial and PCRA proceedings in
this matter.

7  In his second amended petition, Appellant raised three new claims of
ineffective assistance of counsel. First, Appellant alleged that trial counsel
was ineffective for failing to investigate Gibson’s full criminal history and
discovering a purported cooperation agreement between Gibson and the
Commonwealth. According to Appellant, had counsel discovered the alleged
cooperation agreement the Commonwealth would have been precluded from
admitting Gibson’s preliminary hearing testimony at trial. Second Amended
Petition, 8/31/16, at 2-3. Second, Appellant asserted that trial counsel was
ineffective for failing to present an enhanced video from the 5 Street Bar,
which, Appellant alleged, would contradict testimony that Appellant was inside
the bar. Id. Third, Appellant claimed that trial counsel was ineffective for
failing to investigate or locate witnesses from the bar to contradict the
testimony that Appellant was inside the bar. Id.



                                           -5-
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of intent to dismiss the first amended petition. On October 26, 2016, Attorney

Malloy filed a third amended petition.8

       On January 18, 2017, the Commonwealth filed an objection to

Appellant’s new pleadings. The Commonwealth stated that because Appellant

did not seek leave of court prior to filing his second and third amended

petitions, those petitions were untimely filed and the claims raised therein

were waived.

       On January 25, 2017, Appellant filed a motion to accept the third

amended petition nunc pro tunc, but did not refer to the second amended

petition objected to by the Commonwealth. The PCRA court granted

Appellant’s motion.

       On February 14, 2017, the PCRA court issued a “notice of intent to

dismiss petitioner’s second and third amended PCRA petitions without a

hearing.” Order, 2/14/17. The PCRA court, in relevant part, concluded that

Appellant’s second amended petition was filed without leave of court and the

claims therein were therefore waived. See id. (stating “[Appellant] has been

granted leave, nunc pro tunc, to file the third amended petition and therefore
____________________________________________



8 Appellant’s third amended petition alleged, inter alia, that PCRA counsel
recently located a new witness, Brian Tucker, who would have testified that
Appellant was not present at the scene of the homicide. Third Amended
Petition, 10/26/16, at 2. Appellant, in his third amended petition, Appellant
averred that he filed his second amended petition pursuant to a prior court
order and incorporated portions of the seconded amended petition by
reference. Id. at 1-2. Appellant also attached a copy of his second amended
PCRA petition to his third amended petition.


                                           -6-
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this claim may be considered by the court. However, the additional claims

raised for the first time in the ‘Amended Petition for Post-Conviction Collateral

Relief’ filed on August 31, 2016 [i.e., the second amended petition] have been

waived.”) Nevertheless, the court found all claims raised by Appellant were

meritless.

      Appellant filed a response on March 6, 2017, alleging, inter alia, that he

timely filed his second amended petition at the discretion of the PCRA court.

According to Appellant, the PCRA court orally granted an extension for counsel

to file the second amended petition.      Appellant did not address the PCRA

court’s August 16, 2016 order directing that an extension of time was granted

for the purposes of filing a response to the court’s initial February 10, 2016

Rule 907 notice of its intent to dismiss Appellant’s first amended petition. On

March 22, 2017, the PCRA court dismissed Appellant’s PCRA petitions.

      On March 30, 2017, Attorney Malloy filed a motion to withdraw. After

Attorney Malloy filed a timely notice of appeal on Appellant’s behalf on April

18, 2017, the PCRA court granted his motion to withdraw.

      On April 28, 2017, the PCRA court appointed present counsel, Stephen

Dean Molineux, Esq., to represent Appellant.      Present counsel filed a Rule

1925(b) statement asserting the following errors complained of on appeal,

which we have reordered for discussion:

         1. Whether the PCRA [c]ourt erred in dismissing [Appellant’s]
         PCRA, without an evidentiary hearing, where the [c]ourt
         erroneously did not consider that Brian Tucker was available at
         the time of trial and would have testified that [Appellant] was
         not present at the scene of the homicide on May 22, 2007[.]

                                      -7-
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          2. Whether the PCRA [c]ourt erred in dismissing [Appellant’s]
          PCRA, without an evidentiary hearing, where the [c]ourt
          erroneously determined that [Appellant] was not prejudiced by
          trial counsel’s ineffectiveness when trial counsel failed to object
          when the trial court allowed the jury to review the transcript of
          Craig Gibson’s testimony[.]

          3. Whether the PCRA [c]ourt erred in dismissing [Appellant’s]
          PCRA, without an evidentiary hearing, where the [c]ourt
          erroneously determined that [Appellant’s] claim that trial
          counsel was ineffective for failing to object to the admission of
          Craig Gibson’s preliminary hearing testimony where trial
          counsel did not properly investigate Craig Gibson’s criminal
          history prior to his testimony at the preliminary hearing[.]

          4. Whether the PCRA [c]ourt erred in dismissing [Appellant’s]
          PCRA, without an evidentiary hearing, where the [c]ourt
          erroneously determined that all claims raised in [Appellant’s
          second9] amended petition were waived[.]

Pa.R.A.P. 1925(b) Statement, 5/24/17, at 1.

       The PCRA court filed a responsive opinion. The court concluded that

Appellant’s first two issues regarding Brian Tucker and the jury’s review of the

transcript of Gibson’s preliminary hearing testimony did not warrant relief.

PCRA Ct. Op. at 14-17.

       With respect to Appellant’s issue that trial counsel failed to investigate

Gibson’s criminal history before the preliminary hearing, the court concluded

that claim was not preserved in any of Appellant’s amended petitions. Id. at

18; see supra note 7 (indicating that Appellant raised a claim that trial counsel
____________________________________________


9 Appellant asserted that the PCRA court erred in dismissing Appellant’s “third
amended petition.” Pa.R.A.P. 1925(b) Statement at 1. However, it is
apparent that the court permitted Appellant to proceed with the claim listed
in the third amended petition, but suggested that Appellant’s second amended
petition was filed without leave of the court and that the claims therein were
waived.

                                           -8-
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failed to object to the admission of Gibson’s preliminary hearing testimony

based on an allegedly undisclosed cooperation agreement). The court thus

suggested that Appellant’s issue, as set forth in his Rule 1925(b) statement,

was waived for being raised for the first time on appeal. PCRA Ct. Op. at 18.

In any event, the PCRA court found the issue meritless. Id. at 21-23.

     Lastly, we agree with the PCRA court that it properly refused to consider

the claims raised in Appellant’s second amended petition. See id. at 26. The

court, however, noted that it nonetheless found the Appellant’s claim

regarding the admission of Gibson’s preliminary hearing testimony, which was

raised in the second amended petition to be meritless. Id.

     Appellant raises the following issues for our review, which we have

reordered for the purposes of discussion:

     1. Whether the PCRA court erred in dismissing [Appellant’s]
        PCRA, without an evidentiary hearing, where the court
        erroneously determined that all claims raised in amended
        petitions without leave of court were waived.

     2. Whether the PCRA court erred in dismissing [Appellant’s]
        PCRA, without an evidentiary hearing, where the court
        erroneously determined that [Appellant’s] claim that trial
        counsel was ineffective for failing to object to the admission of
        Craig Gibson’s preliminary hearing testimony where trial
        counsel did not properly investigate Craig Gibson’s criminal
        history.

     3. Whether the PCRA court erred in dismissing [Appellant’s]
        PCRA, without an evidentiary hearing, where the court
        erroneously did not consider that Brian Tucker was available at
        the time of trial and would have testified that [Appellant] was
        not present at the scene of the homicide on May 22, 2007.

     4. Whether the PCRA court erred in dismissing [Appellant’s]
        PCRA, without an evidentiary hearing, where the court

                                    -9-
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         erroneously determined that [Appellant] was not prejudiced by
         trial counsel’s ineffectiveness when trial counsel failed to object
         when the trial court allowed the jury to review the transcript of
         Craig Gibson’s testimony.

Appellant’s Brief at 4 (some formatting altered).

      In his first issue, Appellant contends that the PCRA court incorrectly

concluded that the issues raised in his second amended petition were waived.

Appellant asserts that the PCRA court “orally granted Appellant an extension

of time to file an amended petition” and that he timely filed his second

amended petition “at the discretion of the court.” Id. at 14. As a result, he

claims, the PCRA court erred in finding waiver of the claims he raised in his

second amended petition.

      Pursuant to Pennsylvania Rule of Criminal Procedure 905, a PCRA court

has discretion to grant leave to amend or withdraw a petition at any time.

See Pa.R.Crim.P. 905(A).      Additionally, an “[a]mendment shall be freely

allowed to achieve substantial justice.” Id.

      However, our Supreme Court has explained that

      it is clear from the rule’s text that leave to amend must be sought
      and obtained, and hence, amendments are not “self-authorizing.”
      Commonwealth v. Porter, 35 A.3d 4, 12 (2012). Thus, for
      example, a petitioner may not “simply ‘amend’ a pending petition
      with a supplemental pleading.” Id. Rather, Rule 905 “explicitly
      states that amendment is permitted only by direction or leave of
      the PCRA Court.” Id. at 523–24, 35 A.3d at 12; see also
      Williams, 828 A.2d at 988 (indicating that the PCRA court retains
      discretion whether or not to grant a motion to amend a post-
      conviction petition). It follows that petitioners may not
      automatically “amend” their PCRA petitions via responsive
      pleadings.



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Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014) (some

citations altered).   We review the PCRA court’s decision to deny leave to

amend for an abuse of discretion. See Commonwealth v. Keaton, 45 A.3d

1050, 1060 n.3 (Pa. 2012).

      Even if we were to agree with Appellant that the PCRA court erred in

deeming the claims raised in Appellant’s second amended petition waived, no

relief is due. The court, as noted above, fully addressed all issues raised in all

three amended PCRA petitions. Thus, there is no need to remand the matter

for further consideration of the claims raised in Appellant’s second amended

petition.

      In his second issue, Appellant asserts that the PCRA court erred in

denying relief on the issue raised in his second amended petition, namely that

trial counsel was ineffective for failing to object to the admission of Craig

Gibson’s preliminary hearing testimony based on the alleged cooperation

agreement. For the reasons that follow, we conclude that Appellant’s second

issue has been waived for appellate review.

      It is well-settled that “[a]ny issues not raised in a [Rule] 1925(b)

statement will be deemed waived.” Commonwealth v. Hill, 16 A.3d 484,

491(Pa. Super. 2011) (emphasis and citation omitted).                Further, an

appellant’s Rule 1925(b) Statement “shall concisely identify each ruling or

error that the appellant intends to challenge with sufficient detail to identify

all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii).




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       Here, the ineffectiveness claim raised in Appellant’s Rule 1925(b)

statement was based on counsel’s failure to investigate Craig Gibson’s criminal

history prior to the preliminary hearing. See Appellant’s 1925(b) Statement,

5/24/17. However, as the PCRA court correctly noted, this claim is distinct

from the claim Appellant raised in his second amended petition.10

       Appellant presently attempts to resurrect the original claim that trial

counsel was ineffective for failing to discover the alleged cooperation

agreement and object to admission of Gibson’s preliminary hearing testimony.

Unfortunately, Appellant’s effort is unavailing, as we must find the issue

waived on account of his failure to preserve it in his Rule 1925(b) statement.11
____________________________________________


10The PCRA noted that “[t]hree amended petitions were filed in this matter
and nowhere was it alleged that trial counsel was ineffective for failure to
conduct an investigation before the preliminary hearing.” PCRA Ct. Op.,
6/13/17, at 18.

11Nevertheless, we find this claim meritless on the basis of the PCRA court’s
opinion, which stated:

       The claim before the PCRA court, distilled to its essence[,] was
       that an agreement to testify on behalf of the Commonwealth
       existed, that it was not revealed to trial counsel, that [counsel]
       ineffectively failed to discover it and therefore, [counsel] did not
       “properly” object to the Commonwealth’s motion to admit former
       testimony. The factual basis for this claim is non-existent and the
       record belies the claim that [Appellant] was denied the
       opportunity to cross-examine Gibson. Because this claim is based
       on mere conjecture, the [c]ourt concluded that it had no arguable
       merit and resulting prejudice did not exist.

PCRA Ct. Op., 6/13/17, at 18-19.




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See Hill, 16 A.3d at 494 (stating that this Court “lack[s] the authority to

countenance deviations from [Rule 1925(b)’s] terms [and] the Rule’s

provisions are not subject to ad hoc exceptions or selective enforcement”).

       Appellant’s two remaining issues involve claims of ineffective assistance

of counsel, both of which were preserved in Appellant’s first and third

amended petitions, as well as his Rule 1925(b) statement.

       Where, as here, the PCRA court has dismissed a petition without an

evidentiary hearing, we review the PCRA court’s decision for an abuse of

discretion. See Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013).

Pursuant to Rule 907, a PCRA court has discretion to dismiss a PCRA petition

without a hearing if the court is satisfied that there are no genuine issues

concerning any material fact, that the defendant is not entitled to post-

conviction collateral relief, and that no legitimate purpose would be served by

further proceedings. See Pa.R.Crim.P. 907(1); Roney, 79 A.3d at 604.

       Our review of a PCRA court’s dismissal of a PCRA petition is limited to

the examination of “whether the PCRA court’s determination is supported by

the record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988,

992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s findings will not

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


____________________________________________


Additionally, the PCRA court concluded that even if trial counsel were aware
of Gibson’s criminal background and the extent of his cooperation with the
Commonwealth, the argument that it would have changed the outcome of the
trial is “at best[,] specious.” Id. at 21.

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Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citation

omitted).

        Moreover, it is presumed that the petitioner’s counsel was effective,

unless the petitioner proves otherwise. Commonwealth v. Williams, 732

A.2d 1167, 1177 (Pa. 1999).               Our Supreme Court has adapted the

Strickland12 performance and prejudice test into a three-part inquiry. See

Commonwealth v. Pierce, 527 A.2d 973, 975-77 (Pa. 1987). Thus, to

succeed on a claim of ineffective assistance of counsel, a petitioner must

demonstrate (1) that the underlying claim is of arguable merit; (2) that

counsel’s performance lacked a reasonable basis; and (3) that the

ineffectiveness of counsel caused the appellant prejudice. Commonwealth

v. Washington, 927 A.2d 586, 594 (Pa. 2007). A claim of ineffectiveness

will be denied if the petitioner’s evidence fails to satisfy any one of these

prongs. Id.

        “To demonstrate prejudice, the petitioner 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. King, 57

A.3d 607, 613 (Pa. 2012) (citation omitted). “When it is clear that appellant

has failed to meet the prejudice prong [of his ineffective assistance of counsel

claim], the claim may be disposed on that basis alone, without a determination




____________________________________________


12   Strickland v. Washington, 466 U.S. 668 (1984).

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of whether the first two prongs have been met.” Commonwealth v. Fink,

791 A.2d 1235, 1246 (Pa. Super. 2002) (citation omitted).

      Appellant argues that trial counsel was ineffective for failing to call Brian

Tucker as a witness at trial. Appellant’s Brief at 19. Appellant asserts that

Tucker’s testimony would have shown that Appellant was not at the scene of

the homicide and that, further, Appellant’s co-defendant Ishmail was the one

who shot the victim. Id. As a result, Appellant contends that the PCRA court

should have held an evidentiary hearing to assess the credibility of Tucker’s

testimony. Id.

      The Commonwealth counters that Tucker’s proffered witness statement

pertains only to the conduct of Appellant’s co-defendant and makes no

reference   whatsoever     to   Appellant.     Commonwealth’s      Brief   at   18.

Additionally, it argues that the statement fails to allege why counsel knew of,

or should have known of Tucker’s existence. Id. Finally, the Commonwealth

concludes that there was no issue of material fact warranting a hearing;

Tucker’s statement was an exhibit to the petition, and because Appellant did

not demonstrate that his claim had arguable merit, it was not necessary for

the court to determine Tucker’s credibility, or trial counsel’s basis for her

omission. Id. at 19.

      It is well settled that

      [w]hen raising a claim of ineffectiveness for the failure to call a
      potential witness, a petitioner satisfies the performance and
      prejudice requirements of the Strickland 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

                                      - 15 -
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      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. Commonwealth v. Johnson, 966 A.2d 523, 536 ([Pa.]
      2009); Commonwealth v. Clark, 961 A.2d 80, 90 ([Pa.] 2008).
      To demonstrate Strickland prejudice, a petitioner “must show
      how the uncalled witnesses’ testimony would have been beneficial
      under the circumstances of the case.” Commonwealth v.
      Gibson, 951 A.2d 1110, 1134 ([Pa.] 2008). Thus, counsel will not
      be found ineffective for failing to call a witness unless the
      petitioner can show that the witness’ testimony would have been
      helpful to the defense. Commonwealth v. Auker, 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. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012).

      Instantly, the PCRA court, in relevant part, concluded that Tucker’s

testimony “may have further inculpated co-defendant Ishmail[,] but it ma[d]e

no reference to [Appellant’s] whereabouts or involvement in, or his lack of

involvement in the murder.” PCRA Ct. Op., 6/13/17, at 25. Therefore, the

PCRA court concluded that Appellant failed to demonstrate prejudice.         We

agree with the PCRA court’s analysis.

      Tucker’s handwritten statement, dated August 27, 2016, was attached

to Appellant’s third amended PCRA petition. Assuming Tucker’s testimony is

credible, it establishes only that Appellant’s co-defendant was present at the

scene of the murder, that shots were fired, and that the co-defendant had a

firearm. The statement does not mention Appellant, let alone preclude the

possibility that Appellant was present at the scene.          Additionally, the

statement did not allege that the witness was available and willing to testify



                                     - 16 -
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at trial, nor did Appellant assert that counsel knew of, or should have known

of Tucker’s existence. Because Appellant has failed to demonstrate prejudice,

his claim is without merit. See Pierce, 527 A.2d 973. Accordingly, no relief

is due.

      In his next issue, Appellant contends that trial counsel was ineffective

for failing to object when the trial court allowed the jury to review a transcript

of Gibson’s preliminary hearing testimony during deliberations.

      The determination of whether a trial exhibit should be permitted to go

out with the jury during deliberations “is within the discretion of the trial judge,

and such decision will not be overturned absent an abuse of discretion.”

Commonwealth v. Parker, 104 A.3d 17, 25 (Pa. Super. 2014) (citation

omitted). “Our courts have rarely found that materials given to juries during

deliberations constitute reversible error.” Commonwealth v. Barnett, 50

A.3d 176, 194 (Pa. Super. 2012).

      Appellant’s claim arose from the following circumstances. Approximately

one and a half hours into deliberations, the jury requested three items: Darryl

Roberts’ witness statement, Craig Gibson’s preliminary hearing testimony, and

a hand-drawn map of the murder scene. N.T., 3/8/12, at 115-16. The trial

court granted the jury’s request for the map and Gibson’s preliminary hearing

testimony, but denied the request for Roberts’ statement.          The trial court

explained:

      Yes, okay. I’m going to give you [the map of the scene]. With
      respect to Craig Gibson, I can give that transcript to you that was
      read in court and that you followed along. I can give you that.

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     Darryl Roberts’ statement is a different issue altogether. There’s
     material in there that could be prejudicial to either side. What
     you’re going to have to do is basically huddle together and try to
     reconstruct his testimony. But I can’t send that out to you.

Id. at 116-17. The jury returned to the deliberation room, and reached a

verdict approximately one and a half hours later.

     In considering Appellant’s claim, the PCRA court found that although

Appellant’s claim had arguable merit, he failed to demonstrate prejudice.

PCRA Ct. Op., 6/13/17, at 14. The PCRA court further explained:

     This conclusion must be drawn when the claim is considered in
     light of the record as a whole. The jury retired to deliberate at
     approximately 1:00 p.m. At 2:30 p.m. it requested the transcript,
     a hand-drawn map, and the statement of Darryl Roberts. The
     request for the map was granted. The request for Roberts’ written
     statement was denied. The jury received the two items and
     resumed its deliberations, returning with its verdict at 4:05 p.m.

     Craig Gibson was killed before trial. At trial the jury heard his
     recorded testimony from the preliminary hearing. The jury
     listened to Gibson’s tape-recorded testimony and each juror was
     simultaneously provided with a written transcript of that
     testimony. Therefore, the jury viewed and considered the written
     transcript in court, minimizing any prejudice that could result from
     a second viewing during deliberations. Mr. Gibson testified that he
     saw both [Appellant] and Mr. Is[h]mail as the victim arrived
     outside the [b]ar in a rented motor vehicle. He saw Ishmail punch
     the victim and saw Ishmail and [Appellant] chase the victim
     around the corner. He saw [Appellant] raise a gun, he heard
     gunshots and saw [Appellant] fire a gun.

     Jimmy Crawford also testified. He lives on Patterson Street,
     around the corner from 5th Street Bar. He saw his friend, the victim
     starting to jog up Patterson Street and then saw a “guy” shoot
     him three or four times.

     Darrell Roberts gave a statement to Detective Nutall of the City of
     Chester Police Department, on May 22, 2007, following the
     murder. At trial Roberts denied any knowledge of either defendant
     and claimed that he had no recollection of the statement. He

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J-S02025-18


     acknowledged however, that the identifying information it
     contained matched his and that the signature it bore was his own.
     In that statement he reported that he saw [Appellant] on the
     street by the [b]ar. He saw the Victim run from the bar. He saw
     [Appellant] walk toward the victim and then heard about fifteen
     shots fired. He identified both [Appellant] and Ishmail in photo
     arrays.

     Steven Cooper was a cellmate of [Appellant’s] for six days in the
     George Hill Correctional Facility. He testified that [Appellant] told
     him that he had shot and killed the victim (“Falif”) in front of a bar
     after the victim pulled up because the victim owed someone
     money. Cooper reported this conversation to authorities in
     October of 2011 when he was released from jail.

     Michael Lane, [Appellant’s] cousin, testified that in August of 2007
     [Appellant] told him that he killed the victim. [Appellant] and Lane
     were sitting in a parked car on 5th Street and [Appellant] said that
     he killed the victim because the victim owed a man money.
     [Appellant] shot the victim on Patterson Street, around the corner
     from the 5th Street Bar. Lane reported this conversation to police
     in 2010.

     Given the record, the likelihood of a different outcome had the
     jury’s request for the transcript been denied is not a reasonable
     probability but is de minimis. Had the request been denied the
     jury would have again read the transcript in open court along with
     the replay of the audio. The request for the transcript came after
     the jury deliberated for one and a half hours and a verdict was
     returned one and a half hours later after they returned to
     deliberate. Along with the transcript it received a hand drawn map
     that was used at trial. While the testimony of Gibson was
     significant it did not stand alone. It was corroborated by Roberts,
     Cooper, and Lane. The jury was instructed to consider all of the
     evidence and all of the testimony presented. The request for
     Roberts’ statement and the map evidences the diligence with
     which the jury followed this instruction as it continued its
     deliberation. Under these circumstances prejudice has not been
     demonstrated. Trial counsel’s failure to object did not deprive
     [Appellant] “of a fair trial, a trial whose result is reliable,” [Pierce,
     527 A.2d 973] (a convicted defendant’s claim that counsel’s
     assistance was so defective as to require reversal of a conviction
     requires showing that counsel’s errors were so serious as to
     deprive the defendant of a fair trial, a trial whose result is reliable).


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J-S02025-18



Id. at 14-17 (some citations omitted).

      We agree with the PCRA court’s conclusion in that Appellant failed to

demonstrate that he suffered prejudice on account of counsel’s failure to

object. As the PCRA court noted, although Gibson’s testimony was significant,

it was corroborated by three other witnesses and “did not stand alone.” Id.

at 17. Accordingly, no relief is due.

      Lastly, to the extent that Appellant suggests that an evidentiary hearing

was required to consider his claims, our review compels the conclusion that

Appellant failed to establish genuine issues of fact necessitating an evidentiary

hearing. See Pa.R.Crim.P. 907(1); Roney, 79 A.3d at 604. Thus, we discern

no error in the PCRA court’s determination to dismiss Appellant’s claims

without a hearing.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/18




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