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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

               v.


 DENNIS FULTON

                    Appellant              :   No. 2913 EDA 2018
          Appeal from the PCRA Order Entered September 27, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0003414-2014
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY NICHOLS, J.:                              FILED JULY 23, 2019

      Appellant Dennis Fulton appeals from the order dismissing his timely

first Post Conviction Relief Act' (PCRA) petition.       On appeal, Appellant

contends the PCRA court erred by denying his request for an extension of time

to file an amended PCRA petition. Appellant also claims the PCRA court should

have held an evidentiary hearing on his claim that trial counsel was ineffective

by failing to interview and call six witnesses. We affirm.

      We adopt the facts as quoted in a prior decision of this Court:

      On February 7, 2008, Aisha Evans purchased a Smith & Wesson
      Model 10 .38 Special revolver, serial number D424759, for the
      father of her children, [Appellant]. Evans purchased the revolver
      for [Appellant] because he could not buy the gun himself.

      Prior to the murder, the decedent Rudolph Wilkerson, a 61 year -
      old neighborhood "hack driver," provided several unlicensed taxi


1- 42 Pa.C.S. §§ 9541-9546.
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     rides to [Appellant], Evans, and several others living in the
     neighborhood. During one hack ride, the decedent allegedly
     flirted with Evans, which greatly upset [Appellant].

     On June 17, 2010, the decedent purchased thirty bundles of
     heroin from Frank Johnson, Jr., a drug dealer who occasionally
     employed the decedent. Edwin Castro, the decedent's neighbor,
     later observed the decedent transport the heroin in his green 1993
     Ford Explorer.

     On June 18, 2010, the evening of the murder, the decedent and
     Roger Aye, the decedent's close friend, socialized and smoked
     crack cocaine in the decedent's home. While using a "star 67"
     prefix to conceal his phone number, [Appellant] called the
     decedent three times between 11 p.m. and 11:34 p.m. and
     received no response. Once [Appellant] called the decedent from
     his unconcealed number, the decedent immediately returned
     [Appellant's] call and arranged to pick up [Appellant]. As he was
     leaving his home, the decedent told Aye that he needed to pick
     up a "young boy," referring to [Appellant], near Sixth Street and
     Emily Street. The decedent never returned home.

     At 12:33 a.m. on June 19, 2010, Officers Brian Egrie and James
     Bragg responded to a radio call for an unresponsive male lying on
     the highway near 16 E. Wolf Street and discovered the decedent
     lying in a pool of blood. At 12:51 a.m., medics pronounced the
     decedent dead at the scene.

     At approximately 1 a.m. on June 19, auto mechanic John Pilotti
     observed the decedent's vehicle illegally parked near the
     intersection of Seventh and Morris Streets, and called a towing
     service the next morning. That morning, Sergeant Kevin Cannon
     and Officer Melissa Curcio secured the vehicle and observed
     interior and exterior bloodstains.

     At trial, Dr. Gary Collins, [then the] Philadelphia Deputy Medical
     Examiner and an expert in forensic pathology, testified that the
     decedent suffered fatal, penetrating gunshot wounds to the back
     left of the head and the right shoulder. The decedent further
     suffered a fatal perforating gunshot wound to the central chest, a
     non -fatal, perforating gunshot wound to the mouth, and graze
     wound behind the right ear. The gunshot wound to the decedent's
     central chest exhibited a dense stipple pattern indicative of a
     contact wound. The trajectory of the decedent's back left head

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     and right shoulder gunshot wounds were consistent with shots
     fired from above and in front of a kneeling decedent. Dr. Collins
     concluded, to a reasonable degree of scientific certainty, that the
     cause of death was homicide by multiple gunshot wounds. Two
     bullets were recovered from the decedent and turned over to the
     Philadelphia Police Department Homicide Unit.

     On July 8, 2010, Officer Jacqueline Davis of the Philadelphia Crime
     Scene Unit searched the decedent's vehicle and observed a bullet
     hole in the driver's seat and recovered projectiles from the rear
     driver's side door and the driver's side seat belt column. Officer
     Brian Stark, an expert in blood splatter analysis, examined the
     bloodstains   the vehicle and observed downward flowing
                   in
     bloodstains on the passenger side front door that exhibited
     significant blood smear. Blood stains on the dashboard and center
     console indicated that the decedent crawled across the front
     passenger seat before opening the door. Officer Stark further
     observed heavier volume drops on the interior panel between the
     front and rear passenger door, which flowed downward towards
     the street below.

     Officer Stark examined two bloodstains on the highway outside of
     16 E. Wolf Street, marked bloodstains A and B. Bloodstain A
     exhibited a passive droplet pattern and indicated no movement
     from the blood source, consistent with blood flow from the
     passenger side door.  Bloodstain B, located eleven feet east of
     bloodstain A, indicated heavy blood flow from the decedent's
     mouth and demonstrated that the decedent crawled west to east
     along Wolf Street after escaping the truck, smearing blood across
     the pavement. Blood accumulation on the decedent's shoes, legs
     and shirt exhibit a pattern consistent to wiping or smearing
     bloodstain B. The decedent's body laid in a pool of blood six feet
     away from Bloodstain B.

     Officer Ronald Weitman of the Firearms Investigation Unit, a
     ballistics expert, concluded that all four bullets recovered in this
     matter were .38/.357 caliber and exhibited "five right twist" rifling
     markings. Officer Weitman concluded that each bullet was fired
     from the same weapon. At trial, Officer Weitman testified that all
     Smith & Wesson Model 10 .38 Special revolvers left "five right"
     markings on their respective bullets. In 2013, Officer Weitman
     examined the Smith & Wesson Model 10 revolver belonging to
     [Appellant] and determined that the weapon fired .38 caliber
     bullets exhibiting "five right" rifling characteristics. Due to

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     corrosion and wear on the weapon's barrel, test firing the weapon
     produced insufficient microscopic bullet markings to determine
     whether the recovered projectiles were fired from [Appellant's]
     gun.

     On August 7, 2010, Detective Kenneth Rossiter interviewed Aye,
     who stated that he left the decedent's home at approximately 7
     a.m. the morning after the murder. As he travelled home, Frank
     Johnson Sr., a neighborhood drug dealer and Johnson Jr.'s father,
     told Aye that the decedent was murdered over 30 bundles of
     heroin. Aye said that, the day before the shooting, Castro saw
     the decedent transport the heroin in his green Ford Explorer.

     Detective Rossiter recovered the decedent's cell phone and
     discovered that [Appellant's] 267-271-6664 number was the last
     call to the decedent's phone. In the hour prior to the shooting,
     three calls were made from [Appellant's] phone to the decedent's
     phone using a "star 67" prefix to conceal the number's identity.
     The records further revealed that an unconcealed fourth call was
     made from [Appellant's] phone at 11:34 p.m., and that a return
     call was made two minutes later.

     On August 13, 2010, Detectives Rossiter and Nordo interviewed
     [Appellant], who confirmed that the 267-271-6664 number
     belonged to him. [Appellant] claimed that his cousin, Shaku
     Maven, called the decedent from his phone on the night of the
     murder. At trial, Maven testified that he did not use [Appellant's]
     phone on the night of the murder, as he was in Darby at that time.

     Two days after his interview with detectives, [Appellant] told his
     cousin Norman Whitest that police knew that he was the last one
     to call the decedent and the last person in the decedent's car.
     [Appellant] told Whitest that he called the decedent for a ride to
     Evans' home and that he was worried that Maven gave detectives
     his name. At around the same time period, [Appellant] told Evans
     that he killed the decedent because he needed the money and
     stole cash from him.

     Tazmin Willis, [Appellant's] close friend, was incarcerated at the
     time of the decedent's murder. Upon his release in the summer
     of 2010, Willis moved into [Appellant's] home at 604 Emily Street.
     There, [Appellant] told Willis that he murdered the decedent
     because the decedent had disrespected Evans earlier that


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     summer. [Appellant] implored Willis not to tell the decedent's son
     that [Appellant] murdered his father.

      On January 8, 2013, Willis provided a statement about the instant
      matter to state and federal authorities in exchange for a
      downward departure on his pending federal robbery and firearms
      charges.   During the interview, Willis repeated [Appellant's]
      confession and stated that [Appellant] habitually carried a silver
      Smith & Wesson revolver.

     On March 6, 2013, Special Agent Mangold of the Pennsylvania
     Attorney General's Office interviewed [Appellant], whereupon
     [Appellant] stated that Evans purchased a Smith & Wesson Model
     10 revolver, serial number D424759 on his behalf. [Appellant]
     told Special Agent Mangold that someone stole the weapon prior
     to the interview.

     On November 17, 2013, Philadelphia police arrested Carlton
     Wright and recovered the silver Smith & Wesson Model 10
      revolver, serial number D424759, which previously belonged to
      [Appellant].

Commonwealth v. Fulton, 3791 EDA 2015, 2016 WL 7219708, *4 -*7 (Pa.

Super. filed Dec. 13, 2016) (unpublished mem.) (footnotes and citations
omitted).

     Appellant was arrested and tried by a jury.

     At Appellant's trial, significant circumstantial evidence was
     presented, including telephone records revealing several
     telephone calls from Appellant's cell phone to [the decedent's] cell
     phone shortly before the murder, and testimony indicating that in
      2008 Aisha Evans, the mother of Appellant's two children,
      purchased a Smith and Wesson revolver-consistent with the
     murder weapon-for Appellant and did so in his name because he
     was ineligible to be licensed. Evans and [Willis] indicated that
     Appellant confessed to the murder, telling Evans he needed
     money and telling another witness that he was angry because
     Wilkerson "disrespected" Evans.




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Id. at *1. The jury convicted Appellant, and the trial court sentenced him to

"an aggregate sentence of life imprisonment without parole plus eight to
sixteen years." Id. This Court affirmed on direct appeal, see id., and the
Pennsylvania Supreme Court denied Appellant's petition for allowance of

appeal on May 15, 2017. Commonwealth v. Fulton, 169 A.3d 523 (Pa.
2017).

      On January 29, 2018, Appellant filed a timely pro se PCRA petition. The

PCRA court appointed James Berardinelli, Esq., as PCRA counsel.           Attorney

Berardinelli filed an amended PCRA petition claiming that Appellant's trial

counsel was ineffective by failing to object to the admission of the cell phone

records. Am. PCRA Pet., 5/8/18, at ¶ 14. Appellant's petition did not request

an   evidentiary   hearing   or   include   any   witness   certifications.     The

Commonwealth filed a motion to dismiss.

      On June 21, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice of

intent to dismiss indicating that Appellant's issue lacked merit. Appellant filed

a pro se response to the Rule 907 notice requesting a Grazier2 hearing. The

PCRA court held a Grazier hearing on July 30, 2018, at which time Appellant

requested that Attorney Berardinelli file an amended PCRA petition alleging

trial counsel was ineffective by failing to call six witnesses: Marcia Fulton

(Appellant's mother), Derrick Whitest, Norman Whitest, Aisha Evans, Edwin



2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

                                       -6
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Castro, and Tasha James. Suppl. to Appellant's PCRA Pet., 9/19/18, at 1-2.

Attorney Berardinelli requested, and was granted, an extension of time to file

a supplement to the PCRA petition. Order, 8/30/18.

      On September 19, 2018, Attorney Berardinelli filed a supplement to the

PCRA petition, stating as follows:

      4. First, [Appellant's] trial counsel, Daniel Conner, has indicated
      that he was not provided with the names of any witnesses before
      trial. (See Exhibit A). This is consistent with [Appellant's] own
      testimony under oath at trial. (N.T. 11/2/15, p. 13, 11/5/15, p.
      130).

      5. [Appellant's] mother, Marcia Fulton, indicates that Aisha Evans
      did purchase the murder weapon in question, but that she was
      forced to say that it was purchased for [Appellant]. She further
      relates that [Appellant] possessed a similar weapon that was
      stolen before the murder. (See Exhibit B). This testimony,
      however, would have been irrelevant since it in no way refuted
      [Appellant's] potential access to the murder weapon in question.

      6.   [Appellant's] investigator has made repeated efforts to
      interview Norman Whitest, Derrick Whitest, Aisha Evans, Edwin
      Castro and Tasha James but has received no response from any
      of those individuals (See Exhibit C). Further, Norman Whitest and
      Aisha Evans actually testified as a witnesses at trial.       (N.T.
      11/3/15, pgs. 165-187; 11/4/15, pgs. 151-219).

Suppl. to Appellant's PCRA Pet., 9/19/18, at 1-2.      Attorney Berardinelli's

supplement to the PCRA petition essentially stated that Appellant's additional

claims lacked merit.

      At some point-the record does not specify when-Attorney Berardinelli

advised the PCRA court that Appellant wished to proceed pro se on appeal,

which prompted the court to schedule a hearing for the morning of September

27, 2018.      On September 26, 2018, Lauren Wimmer, Esq., entered her

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appearance as Appellant's counsel, but Attorney Berardinelli had not yet
requested permission to withdraw.

      On September 27, 2018, shortly after 9:53 a.m., the PCRA court granted

the Commonwealth's previously filed motion to dismiss Appellant's PCRA

petition.   Order, 9/27/18.        The order also formally dismissed Attorney
Berardinelli as PCRA counsel and appointed Attorney Wimmer as Appellant's

appellate counsel.3 Id.

      Later that morning, the PCRA court held a hearing to address Appellant's

request to proceed pro se on appeal.

      THE COURT:     .   Now, it is my understanding that counsel, who
                         .     .


      will identify herself in a moment, has appeared this morning
      seeking -- well, I'll make certain that that's right -- to enter her
      appearance. So, first of all, Counsel, can you identify yourself for
      the record.

      MS. WIMMER: Good morning, Your [H]onor. Lauren Wimmer. So
      the record is clear, I received a call from [Appellant's] mother last
      night, Marcia Fulton, seeking to retain my law firm for the filing of
      a, I suppose, a supplemental amended petition. In my speaking
      with her before I officially confirm that I've been retained, I did
      enter my appearance, just so there was no confusion. But it's my
      hope to be granted at least 45 days, so that I could thoroughly
      review the file, speak with Mr. Fulton in an attorney -client call,
      and then determine whether further filings need to be made.

      THE COURT: Well, Counsel, since the petition is dismissed, I think
      the question      is whether or not you wish to enter your
                         is,
      appearance for appeal. I mean, we reviewed it, I dismissed it. It
      was actually filed this morning, and before I came into this
      hearing, because court opens early, we of course did not receive


3 The court later filed another order permitting Attorney Berardinelli to
withdraw and appointing Attorney Wimmer as Appellant's appellate counsel.

                                        -8
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      any application for a continuance, nor did we receive any entry,
     which we wouldn't until at least 24 hours after someone files
     something. So I guess the question I have for you is -- well, what
     you're telling me is you know nothing about the case. So, you
     really can't be prepared to argue that there is a necessity for me
     to reconsider the dismissal.

      MS. WIMMER: That's correct, Your Honor.

     THE COURT: I have counsel that I have given several
     continuances, and it was my intent, I think as I already
      articulated, just to see whether or not [Appellant] wanted to
      represent himself on appeal given the history of the case. And I
      did not colloquy or ask Mr. Berardinelli any information.

     As soon as he said that he thought it was appropriate, and he is
     available, if either side thought there was a need for him to testify
     today that      I should,   in   abundance of caution, speak with
      [Appellant].

      So, you know, Counsel, you always have options available to you,
      but at this point, the petition is dismissed. So, let me -- I guess I
      should ask [Appellant] some questions to see whether or not he
     wishes to retain you -- to continue to retain you, because he is
     entitled to counsel of his choice. But at this point I don't see any
      reason to vacate my order to dismiss.

N.T. Hr'g, 9/27/18, at 4-6.

     The PCRA court then questioned Appellant about whether he wished to

represent himself pro se or have Attorney Wimmer represent him. Appellant

did not object to Attorney Wimmer's representation. The PCRA court then

removed Attorney Berardinelli as counsel and formally appointed Attorney

Wimmer as Appellant's appellate counsel.4 Id. at 11-12. The PCRA court also



4 We add that the PCRA court, Appellant, and Attorney Wimmer discussed the
status of her representation because she had not yet been paid. N.T. Hr'g,


                                        -9
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explained its reasoning for dismissing Appellant's PCRA petition earlier that

morning, including the claims raised in Attorney Berardinelli's supplemental

petition. Id. at 6-7 ("So, after reviewing [the supplemental petition], I made

the decision that there was nothing -- that there was no relevant information

that counsel could present on your behalf; so, dismissed your petition").5

      Appellant filed a timely notice of appeal. The PCRA court did not order

Appellant to comply with Pa.R.A.P. 1925(b). Appellant raises two issues on

appeal:

      [1.] Whether the PCRA court erred in denying Appellant's request
      for an extension of time to file an amended PCRA petition.

      [2.] Whether the PCRA court erred in denying Appellant's PCRA
      petition without an evidentiary hearing where Appellant raised
      genuine issues of material fact concerning trial counsel's failure to
      call witnesses.

Appellant's Brief at 3.

      Attorney Wimmer first argues that the PCRA court abused its discretion

by denying her request for a forty-five day continuance to speak with
Appellant and file an amended PCRA petition. Id. at 9. Attorney Wimmer

contends that the PCRA court should have given her at least a week to review




9/27/18, at 8-11. As a result of that discussion, because Attorney Wimmer
was on the list of attorneys that could be appointed by the PCRA court, the
PCRA court appointed Attorney Wimmer as Appellant's appellate counsel, and
Appellant agreed. Id. at 11.
5 The PCRA court also noted that Attorney Wimmer should not have entered
her appearance before she was formally retained. N.T. Hr'g, 9/27/18, at 7.

                                     - 10 -
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the record.    Id. Based on her subsequent review of the record, Attorney
Wimmer claims she has identified two meritorious ineffective assistance of

counsel claims. Id.

      "The decision to grant a continuance is within the sound discretion of

the trial court, and we will reverse only if the court has abused its discretion."

Commonwealth v. Paddy, 15 A.3d 431, 470 (Pa. 2011) (citations omitted).

Initially, the PCRA court had already dismissed Appellant's petition earlier that

morning-before Attorney Wimmer orally requested a forty-five day extension

of time. See N.T. Hr'g, 9/27/18, at 4-6. Regardless, Attorney Wimmer, who

was not formally retained as private counsel, declined to argue that the PCRA

court should reconsider its dismissal.        See id.      Therefore, under the
circumstances, we cannot hold that the PCRA court abused its discretion by

denying Attorney Wimmer an extension of time to file an amended petition.

See Paddy, 15 A.3d at 470.

      Appellant next argues that trial counsel was ineffective by failing to
interview and call Norman Whitest, Derrick Whitest, Aisha Evans, Edwin

Castro, and Tasha James. Appellant acknowledges that a private detective

interviewed Marcia Fulton, Appellant's mother.          According to the private
detective, Appellant's mother said she spoke with Appellant's trial counsel

prior to trial and gave counsel a list of names that included at least Edwin

Castro and Tasha James.          Appellant adds that the private detective
J -S32025-19


interviewed trial counsel who denied that Appellant's mother gave him any

names of witnesses to interview or call for trial.

      We briefly state the applicable standard of review before summarizing

Appellant's arguments.

      This Court's standard of review regarding an order denying a
      petition under the PCRA is whether the determination of the PCRA
      court is supported by the evidence of record and is free of legal
      error. The PCRA court's findings will not be disturbed unless there
      is no support for the findings in the certified record.

Commonwealth v. Grayson,                 A.3d      ,   2019 WL 2417016, *3 (Pa.

Super. 2019) (citation omitted).         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.

      We are guided by the following: 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




                                        - 12 -
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Supreme Court has adopted the Strickland6 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.

     Neglecting to call a witness differs from failing to investigate a
     witness in a subtle but important way. The failure to investigate
     presents an issue of arguable merit where the record
     demonstrates that counsel did not perform an investigation. It
     can be unreasonable per se to conduct no investigation into known
     witnesses.   Importantly, a petitioner still must demonstrate
     prejudice. To demonstrate prejudice where the allegation is the
     failure to interview a witness, the petitioner must show that there
     is a reasonable probability that the testimony the witness would
     have provided would have led to a different outcome at trial.

     In this respect, a failure to investigate and interview a witness
     claim overlaps with declining to call a witness since the petitioner
     must prove: (i) the witness existed; (ii) the witness was available
     to testify; (iii) counsel knew of, or should have known of, the
     existence of the witness; (iv) the witness was willing to testify;
      and (v) the absence of the testimony was so prejudicial as to have
      denied the defendant a fair trial.




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

                                     - 13 -
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Commonwealth v. Pander, 100 A.3d 626, 638-39 (Pa. Super. 2014) (en
banc) (citations and quotation marks omitted); accord Commonwealth v.

Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations omitted).

      Initially, Appellant arguably waived this claim. Appellant's supplement

to the PCRA petition essentially stated that Appellant's claim lacked merit.

See Suppl. to Appellant's PCRA Pet., 9/19/18, at 1-2.        Regardless, even if

Appellant properly raised and preserved this claim, it lacks merit as to
witnesses Norman Whitest and Evans, as they actually testified at trial. See,

e.g., N.T. Trial, 11/3/15, at 165-87; N.T. Trial, 11/4/15, at 151-219.

      Moreover, Appellant failed to establish that trial counsel was aware of

any of the remaining witnesses, let alone that they were available and willing

to testify. See N.T. Trial, 11/2/15, at 13 (Appellant stating at beginning of
trial that he had no witnesses to present on his behalf); N.T. Trial, 11/5/15,

at 130 (Appellant's trial counsel stating at end of trial, that although he called

a police officer as a witness during Appellant's case -in -chief, he had no other

witnesses to present); Pander, 100 A.3d at 638-39.

      Similarly, Appellant has not established that Marcia Fulton's testimony

would have led to a different outcome at trial given, among other evidence,

Appellant's confession to Evans and Willis. See Fulton, 2016 WL 7219708 at

*6.   Since Appellant has not established trial counsel was ineffective, see

Williams, 732 A.2d at 1177, we discern no error in the PCRA court's denial




                                      - 14 -
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of Appellant's PCRA petition.   See Grayson,   A.3d at   ,   2019 WL

2417016 at *3.

     Order affirmed.

Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 7/23/19




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