J-S49004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                      v.

KENDALL C. RICHARDSON

                           Appellant                No. 2204 EDA 2012


                 Appeal from the PCRA Order July 13, 2012
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0000217-2008


BEFORE: OLSON, OTT and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                      FILED SEPTEMBER 26, 2014

     Appellant, Kendall C. Richardson, appeals from the order entered on

July 13, 2012, dismissing his first petition filed under the Post-Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.           Further, on appeal,

               rt-appointed counsel has filed a petition for leave to withdraw




                                                 -written opinion, the court

summarized the underlying facts and procedural posture of this case. As the

PCRA court explained:


        elicited[.]   [The victim in this matter is named Alfredo
                                                                 Luis
        Avila, Jr., the brother of the victim, [] brought [Appellant]

        Pennsylvania,] to purchase marijuana from the victim.      At
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       that time, Melissa Guzman, a [23-year old] woman who
       rented the [third] floor apartment from the victim[,] was
       introduced briefly to [Mr. Avila] and [Appellant]. The drug
       deal occurred and [Mr. Avila] and [Appellant] left the

       [Appellant] showed [Mr. Avila] a handgun. Specifically,
       [Appellant] carried the gun in his waist band and pulled it
       out far enough for [Mr. Avila] to observe that it was a black
       revolver.   [Appellant] expressed to [Mr. Avila] that he
       believed it to be a .45 caliber [handgun] and that he
       possessed the gun for protection.

       [O]n June 18, 2007, Jose Cruz, a tenant residing [in the

       [the building. Mr. Cruz telephoned 911.] At approximately
       the same time, Stephen Purdue, a witness residing [nearby]
       . . . heard what he believed to be gunshots and called [911]
       as well. Mr. Purdue witnessed a male [(who was later
       identified as Darryl Peterson)] emerge from Wayne Street
       and quickly run down 13th Street.         Then Mr. Purdue
       observed a second male [(who was later identified as
       Appellant)] approach the intersection of Wayne and 13th

       telephone call, Mr. Purdue described this second individual
       as black and wearing dark clothing and a red cap. . . .

       Officer Michael Torres of the Allentown Police Department
       responded to [the shooting]. While he was approaching
       13th Street, he observed a vehicle proceeding northbound
       flashing its high beams. In full uniform and in a marked
       police car, [Officer Torres] approached the vehicle and
       made contact with [Ms. Guzman. Ms. Guzman appeared]
       scared and shaken up [and] conversed with Officer Torres in
       Spanish about the shooting.

       While the scene was being processed, Officer Torres
       gathered more information about Ms. Guzman.        Ms.
       Guzman informed Officer Torres that the victim was her

       indicated that she was present in the apartment with the
       victim and another friend (later identified as Darryl Peterson
                          ho was a dark-skinned black or Hispanic
       male, wearing blue jean shorts, a blue and white shirt,
       [Nike] sneakers[,] and donning braids.           [The victim]

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       received a telephone call from an unknown caller and
                                                        ant]

       [Appellant into the apartment. The individuals] hung out in
       the living room area for a few minutes socializing.
       Thereafter, [the victim] went to the kitchen area where he
       was soon joined by [Appellant]. [Appellant] ordered [the

       him in the head.

       Then [Appellant] proceeded to the living room area where
       [Ms. Guzman] and Darryl Peterson were seated. Darryl
       Peterson struggled with [Appellant] and [Ms.] Guzman fled
       to her upstairs third floor apartment and exited out of the
       third floor window onto the roof. [Appellant] chased Darryl
       Peterson downstairs and out of the apartment, shooting at
       him with a revolver. [Ms. Guzman] witnessed the shooter
       exit the apartment, re-enter [the apartment,] and
       ultimately exit the apartment.

       During her initial interview with Detective Gress, [Ms.]
       Guzman stated that she recognized [Appellant] from the
       brief encounter that she had with him three [] days earlier

       apartment to buy drugs. [Ms.] Guzman testified that she
       was positive that it was the same person. Further[], [Ms.]
       Guzman described the shooter in her second police
       interview as a black male, approximately [five-feet, ten-
       inches] tall, [with a] medium build, bushy hair[,] and bushy
       beard. Also, at trial, [Ms.] Guzman [testified] that she

       Guzman [testified] that on June 18, 2007, she looked into
       the eyes of the person who she thought was going to kill
       her and [testified] that she would never forget those eyes.

       Testimony revealed that [Ms.] Guzman unexpectedly met
       [Mr.] Avila on the street two [] days after the homicide and
       informed him that the shooter was the person he had
                                                                 on
       June 15, 2007. Consequently, a photo array was compiled
       and shown to [Mr. Avila].        Upon positively identifying
       [Appellant], the [d]etectives presented the photo array to

       photograph and indicated that he was the person who shot

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          [the victim]. Subsequent to this identification . . . , the
          photo array was presented to witness Juan Collazo, an
          individual who resided near the location of the incident and
          who saw a person fleeing from the subject residence after
          the shooting []. [Mr. Collazo] identified [Appellant] as the
          person he saw running from the doorway of the subject
          residence on the evening in question.

          [On] June 1, 2009, [the jury found Appellant] guilty of
          [first-degree murder,] attempted homicide, robbery[,] and
          recklessly endangering another person.[1] [On] July 14,
          2009, [the trial court sentenced Appellant to life
          imprisonment for the murder conviction]. . . .

          [On] April 18, 2011, the Superior Court [] affirmed
                                  entence [and, on October 17,

          petition for allowance of appeal.  Commonwealth v.
          Richardson, 29 A.3d 835 (Pa. Super. 2011) (unpublished
          memorandum) at 1-20, appeal denied, 30 A.3d 488 (Pa.
          2011)]. . . .

          [On] March 22, 2012, [Appellant] filed a [PCRA petition.
          Appointed counsel then filed an amended PCRA petition] on
          May 31, 2012. . . . In [the PCRA petition, Appellant claimed
          that his trial counsel] rendered ineffective assistance [] by:
          (1) failing to adequate[ly] investigate and/or call Alan
          Jenkins and Carissa Clark to testify as alibi witnesses; (2)
          failing to adequately investigate exculpatory evidence
          regarding cell phone records of [the victim]; (3) failing to
          object to Commonwealth witnesses refreshing their
          recollection through reports written by police officers; (4)
          failing to object to the hearsay testimony of Officer Torres
          regarding statements made by Ms. Guzman which were not
          contained in the police reports; and[,] (5) failing to include
          in the [Rule] 1925(b) statement issues regarding trial court
          error in failing to grant a mistrial where improper influences
          occurred. . . .


____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 901(a), 3701(a), and 2705, respectively.



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         June 6, 2012, from which [the PCRA court made] the
         following findings of fact.[2] Lehigh County Chief Deputy
         Public Defender Karen Schular represented [Appellant at
         trial]. Attorney Schular met with [Appellant] regularly to
         discuss the case and prepare for trial. In an effort to be
         thorough, Attorney Schular investigated all the witnesses
         and people identified in the discovery material that was

         theory of the case. These individuals were investigated by
         a Lehigh County Public Defender investigator, as well as
         personally by Attorney Schular on the weekends.

         Police interviewed Alan Jenkins, a person that [Appellant]
         had identified as an alibi witness. Attorney Schular went
         through great lengths to locate Alan Jenkins to speak with
         him. Ultimately an address in Georgia was [discovered] for
         Alan Jenkins, and Attorney Schular served a subpoena on
         him to appear at the time of trial. Upon receipt of the
         subpoena, Alan Jenkins contacted Attorney Schular and
         related to her that he hardly knows [Appellant] and that he
         did not know anything about the incident. Alan Jenkins was
         belligerent and [antagonistic] on the [telephone] with
         Attorney Schular, and clearly conveyed that he wanted no
         involvement in the case. Attorney Schular believed that it
         was too dangerous and risky to utilize him as an alibi
         witness, and discussed [the] same on multiple occasions
         with [Appellant].

         [Attorney      Schular also] spoke with Carissa Clark,
                           -girlfriend[,] in April of 2008, with regard to

         Carissa Clark [initially indicated] that she and [Appellant]
         had been on [her] porch [at the time of the shooting] and
         then had gone to bed together []. This information was
         sufficient to allow Attorney Schular to file a notice of alibi.
____________________________________________


2
   Unfortunately, the court reporter lost the tapes that contained the
testimony from the June 6, 2012 PCRA hearing. Therefore, on November
13, 2013, the parties appeared before the PCRA court and attempted to
recreate the June 6, 2012 transcript.     See N.T. Recreation Hearing,
11/13/13, at 1-43.



                                           -5-
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       However, Carissa Clark was subsequently interviewed by
       Detective Vazquez. [Carissa Clark told Detective Vazquez]
       that she did not specifically recall the evening of the
       murder, but she could relate to him what she and
       [Appellant] routinely did each day.          In light of this
       inconsistent testimony provided by Carissa Clark, Attorney
       Schular spoke with Carissa Clark again concerning the issue
       of alibi. Carissa Clark reiterated her statement that she had
       given to Detective Vazquez and informed Attorney Schular
       that she could only provide a general context of their typical
       evening routine, but [that she] did not have any specific
       recollection of the subject evening. Additionally, Attorney
       Schular noted that when Carissa Clark became upset, she
       developed an attitude that [Attorney Schular] felt would not
       be received well by the jury. Based on the foregoing,
       Attorney Schular believed that it would be a poor decision to
       have Carissa Clark testify at the time of trial and be subject
       to cross-examination.

       In addition to investigating people, Attorney Schular
       investigated the cell phone records of [the victim] that were
       produced to her prior to trial. Attorney Schular was aware
       that there was a direct connect at 9:36 [p.m.] to the
                                                          , Attorney
       Schular investigated this information and it was determined
       that this number belonged to an individual named Lewis
       Brown who resided in Georgia. At the time of trial, during
       cross-examination, Attorney Schular extensively attacked
       Detective Gre
       and specifically argued that the investigation was lacking


       During the trial, Officer Torres testified that Ms. Guzman
       stated that she had recognized [Appellant] because she had
       seen him three [] days prior to the murder [].         This

       Nonetheless, Attorney Schular did not object to its
       admission.     Indeed, Attorney Schular made the tactical
       decision not to object because she wanted other statements
       made by Ms. Guzman to be admitted, which dealt with her
       initial description of the perpetrator. Initially Ms. Guzman
       had described the shooter as having bushy hair and a bushy
       beard. This description was i


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        [Attorney Schular] believed that it was imperative to get
        this information before the jury for consideration. Also,
        Attorney Schular thoroughly cross-examined Officer Torres
        on this issue, indicating that his report was extremely
        detailed, yet failed to include this seemingly vital piece of
        information.

        Finally, during the appeal process, Attorney Schular filed a
        [Pennsylvania Rule of Appellate Procedure 1925(b)]
        statement[,] which included numerous allegations of error



        Attorney Schular also included in her appellate brief the
        ancillary issues of the jury foreperson doing her own
        [Spanish to English] translations and an incident in which

        being escorted to their vehicles at the end of the evening.
        Attorney Schular included these ancillary issues in her brief
        only to provide the Superior Court [] with a complete
        overview of the case, knowing that there was no merit to
        the issues in and of themselves. As a seasoned defense
        attorney, Attorney Schular was aware that the best strategy
        in filing an appeal is to be concise with regard to the
        primary potentially meritorious arguments, and not to dilute
        them by including other flawed issues. Consequently, only
        two [] subsections were included in the [Rule] 1925(b)

        grant a mistrial.

PCRA Court Opinion, 7/13/12, at 1-9 (internal footnotes omitted) (some

internal capitalization omitted).

                                                       on July 13, 2012 and

Appellant filed a timely notice of appeal.     After reviewing the record,

however, PCRA counsel determined that the appeal had no merit.          As a

result, PCRA counsel notified Appellant that he intended to withdraw from

representation and PCRA counsel filed, in this Court, both a petition to



                                    -7-
J-S49004-14



Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v.   Finley,   550   A.2d   213   (Pa.   Super.   1988)   (en   banc).     See

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (to

comply with Turner/Finley                                          -



raises the following claims on appeal:

        1. [Trial c]ounsel was ineffective for failing to adequately
        investigate and/or call to testify the alibi witnesses, Carissa
        Clark and Alan Jenkins[.]

        2. [Trial c]ounsel was ineffective for failing to adequately
        investigate exculpatory evidence regarding the cell phone
        records of [the victim.]

        3. [Trial c]ounsel was ineffective for failing to object to the
        hearsay testimony of Officer Torres regarding statements
        made by Ms. Guzman which were not contained in the
        police reports[.]

        4. [Trial c]ounsel was ineffective for failing to include issues
        regarding trial court error in failing to grant a mistrial where
        improper influences occurred in the [Rule] 1925(b)
        statement, thereby waiving that issue on appeal.



      Before reviewing the merits of this appeal, however, this Court must

first determine whether counsel has fulfilled the necessary procedural

requirements for withdrawing as counsel. Commonwealth v. Daniels, 947

A.2d 795, 797 (Pa. Super. 2008).

      As we have explained:

        Counsel petitioning to withdraw from PCRA representation
        must proceed . . . under [Turner/Finley.         Under]

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        Turner/Finley[,] counsel must review the case zealously.
        Turner/Finley counsel                            -
        to the trial court, or brief on appeal to this Court, detailing

        case, listing the issues which the petitioner wants to have
        reviewed, explaining why and how those issues lack merit,
        and requesting permission to withdraw.

        Counsel must also send to the petitioner: (1) a copy of the
            -
        withdraw; and (3) a statement advising petitioner of the
        right to proceed pro se or by new counsel.

                                     ...

        [W]here counsel submits a petition and no-merit letter that
        do satisfy the technical demands of Turner/Finley, the
        court trial court or this Court must then conduct its own
        review of the merits of the case. If the court agrees with
        counsel that the claims are without merit, the court will
        permit counsel to withdraw and deny relief.

Wrecks, 931 A.2d at 721 (internal citations omitted).

     Here, counsel has satisfied all of the above procedural requirements.

We will, the

determine whether the claims are in fact meritless. Id.

     We have stated:


        dismissing a petition under the PCRA is whether the
        determination of the PCRA court is supported by evidence of
        record and is free of legal error. In evaluating a PCRA

        findings of the PCRA court and the evidence of record,
        viewed in the light most favorable to the prevailing party at

        any grounds if it is supported by the record.




                                     -9-
J-S49004-14


Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).

       To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence



circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enum

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

                                  )(ii).



                                                          Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).         To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

         (1) his underlying claim is of arguable merit; (2) the
         particular course of conduct pursued by counsel did not
         have some reasonable basis designed to effectuate his
                                                                   s
         a reasonable probability that the outcome of the challenged
         proceedings would have been different.

Commonwealth v. Fulton

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.   Id. Further, with respect to the second ineffectiveness prong, we

                          chosen strategy will not be found to have lacked a

reasonable basis unless it is proven that an alternative not chosen offered a


                                    - 10 -
J-S49004-14



potential for success substantia

Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009) (internal quotations

omitted).



adequately investigate and/or call to testify the alibi witnesses, Carissa Clark



      Our Supreme Court has explained:

        Generally, an alibi is a defense that places the defendant at
        the relevant time in a different place than the scene
        involved and so removed therefrom as to render it
        impossible for him to be the guilty party. At the core of an
        alibi defense is, of course, consistency between the date


Commonwealth v. Ali, 10 A.3d 282, 316 (Pa. 2010) (internal citations,

quotations, and corrections omitted).

      Further:

        In order to prevail on a claim of ineffectiveness for failing to
        call a witness, a [petitioner] must [plead and] prove, in
        addition to . . . the three [general ineffective assistance of
        counsel] requirements [listed above], that: (1) the witness
        existed; (2) the witness was available to testify for the
        defense; (3) counsel knew or should have known of the
        existence of the witness; (4) the witness was willing to
        testify
        testimony was so prejudicial as to have denied [the
        petitioner] a fair trial.

Commonwealth v. Wright, 961 A.2d 119, 155 (Pa. 2008).

                                                             Attorney Schular




                                     - 11 -
J-S49004-14


during the course of this investigation, Attorney Schular interviewed both

Alan Jenkins and Carissa Clark.    However, Attorney Schular testified that

neither Alan Jenkins n                                 place[ Appellant] at the

                                                                Ali, 10 A.3d at



hardly knew [Appellant] and knew nothing a




               N.T. Recreation Hearing, 11/13/13, at 28-29.


     Therefore, since neither Alan Jenkins nor Carissa Clark was able to

place[ Appellant] at the relevant time in a different place than the scene



                                             aim on appeal is thus meritless.

                                                                      for failing

to adequately investigate exculpatory evidence regarding the cell phone



invest




     The PCRA court explained why this issue is meritless:

         [Appell
         contradicted by the record. Attorney Schular investigated
         the cell phone records of [the victim] that were produced []
         by the Commonwealth prior to trial. Attorney Schular was

                                    - 12 -
J-S49004-14


         aware of the fact that there was a direct connect at 9:36


         case.    Additionally, Attorney Schular investigated this
         information and it was determined that the subscriber
         information belonged to a Lewis Brown from Georgia.

         in Georgia, and she unfortunately determined that many of
         the individuals named Lewis Brown from Georgia were
         incarcerated at the time of the homicide. Also, at the time
         of trial, during cross-examination, Attorney Schular

         cell phone records and specifically argued that his
         investigation was lacking with regard to determining the
         t

PCRA Court Opinion, 7/13/12, at 12-13.

                                                  that his trial counsel was

                 for failing to adequately investigate exculpatory evidence

                                                    fails, as the claim has no

basis in fact.



to object to the hearsay testimony of Officer Torres regarding statements

made by Ms. Guzman which were not contained in the police rep



this claim lacks merit:

         During the trial, Officer Torres testified that Ms. Guzman
         stated that she had recognized [Appellant] because she had
         seen him three [] days prior to the murder [].         This

         Nonetheless, Attorney Schular did not object to its
         admission.     Indeed, Attorney Schular made the tactical
         decision not to object because she wanted other statements
         made by Ms. Guzman to be admitted, which dealt with her
         initial description of the perpetrator. Initially Ms. Guzman

                                     - 13 -
J-S49004-14


           had described the shooter as having bushy hair and a bushy

           appearance and the ot
           [Attorney Schular] believed that it was imperative to get
           this information before the jury for consideration. Also,
           Attorney Schular thoroughly cross-examined Officer Torres
           on this issue, indicating that his report was extremely
           detailed, yet failed to include this seemingly vital piece of
           information. Accordingly, [the PCRA court concluded] that


           defense.

PCRA Court Opinion, 7/13/12, at 12-13.




and that Appellant was not able to prove that an alternative strategy

offered a potential for success substantially greater than the course actually

              Cox

was supported by the evidence and does not constitute an abuse of



      Finally, Appellant claims that Attorney Schular was ineffective for

failing to include issues regarding trial court error in failing to grant a

mistrial    where     improper   influences   occurred   in   the    [Rule]   1925(b)

statement, thereby waiving that issue on appeal



                                                                    -read to the jury

                                                                                   y,




                                       - 14 -
J-S49004-14




underlying claims have no merit.         With respect to the re-reading of

testimony, we have held:                                         rded testimony

be read to it to refresh its memory, it rests within the trial court's discretion

to grant or deny such request . . . so long as there is not a flagrant abuse of



Commonwealth v. Gladden, 665 A.2d 1201, 1205 (Pa. Super. 1995) (en

banc) (internal quotations and citations omitted).




         While it is true that the jury requested a great deal of
         testimony [be] read back to them during their deliberations,
         the questions and testimony that the members of the jury
         sought were not duplicative or repetitive in nature. Instead,
         it absolutely appeared to [the trial] court that the jury was


Trial Court Opinion, 12/15/09, at 26.

      In this case, the trial court did not abuse its discretion when it re-read




Commonwealth called 14 witnesses. Further, the charges against Appellant

were extraordinarily serious and required very careful deliberation by the

fact-finders. As such, it was reasonable for the jury to request     and for the

trial court to allow   portions of the trial testimony to be re-read to the jury

during deliberations. The trial court thus did not err when it refused to grant

a mistrial based upon the re-reading of the trial testimony and this Court


                                     - 15 -
J-S49004-14



would not have granted Appellant relief on this claim on direct appeal.



challenge is based upon this underlying claim, the challenge fails.

      Appellant also claims that his counsel was ineffective for failing to

preserve, on direct review, the claim that the trial court erred in failing to



in the presence of the jurors. The underlying claim is meritless.

                                                      al, the trial court held a

hearing on an event that occurred outside of court. During this hearing, the

trial court heard testimony from Deputy Sheriff Sue Schiavone.          Deputy

Schiavone testified:

        When the jurors were coming out of the courthouse, there
        was maybe two jurors that were still left that were coming
        out of the door, and there was a man standing smoking,




N.T. Trial, 5/26/09, at 128.



                                                              heard anything.




                          Id. at 132.




                                    - 16 -
J-S49004-14



     Appellant moved for a mistrial.          However, the trial court credited



     It is clear that, had Appellant preserved any claim related to the trial



failed. As we have held:

         Granting a mistrial is an extreme remedy, and we defer to

         only grant a mistrial where the alleged prejudicial event
         may reasonably be said to deprive the defendant of a fair
         and impartial trial.

Commonwealth v. King, 959 A.2d 405, 418 (Pa. Super. 2008) (internal

quotations and citations omitted).



Deputy                                                           not even hear

the individual make the prejudicial remark. This factual finding is supported



ineffective for failing to preserve the underlying claim on direct appeal, as

the underlying

     We have independently conducted our own review of this case and we

agree with appointed counsel that the current appeal has no merit. Thus,

                                                                        enying

Appellant relief under the PCRA.

     Motion to withdraw as counsel granted. Order affirmed.




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J-S49004-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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