J-S11024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ARMEL J. BAXTER

                            Appellant                No. 1277 EDA 2015


                   Appeal from the PCRA Order March 4, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013121-2007


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                            FILED NOVEMBER 17, 2016

        Armel J. Baxter appeals the order entered March 4, 2015, in the

Philadelphia County Court of Common Pleas, dismissing his first petition filed

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

seq. Baxter seeks relief from the judgment of sentence of life imprisonment

imposed on February 5, 2009, after a jury found him guilty of first-degree

murder, criminal conspiracy, and possession of an instrument of crime

(“PIC”).1    On appeal, he raises multiple ineffective assistance of counsel

claims. For the reasons that follow, we affirm.




____________________________________________


1
    18 Pa.C.S. §§ 2502(a), 903(a)(1), and 907(a), respectively.
J-S11024-16


     The facts underlying Baxter’s convictions were recited, as follows, in

the decision by this Court affirming his judgment of sentence on direct

appeal:

            On April 21, 2007, approximately twenty (20) to fifty (50)
     people were in the Kenderton Elementary playground. Demond
     Brown (decedent/victim, also identified on the record as
     “Demond”) had recently finished a game of basketball and was
     standing on the sideline. The decedent’s cousin, Anthony Harris
     (also identified on the record as “Tony”), and best friend, Hassan
     Durant, were standing on the basketball court.

           [Baxter]1 and Jeffrey McBride2 were in the backseat of their
     friend Rachel Marcelis’ car, driving to their friend Daryl Mack’s
     (also identified on the record as “Mack”) aunt’s house. Either,
     [Baxter] or McBride said they saw someone on the playground
     and told Rachel Marcelis to go back so they could be sure.
     Rachel Marcelis drove around the block, and [Baxter] and
     McBride exited the car.
     ____________________
          1
            “[Baxter]” also identified on the record as “Snubbs” and
          “Jay-Jay[.]”
          2
         “McBride”, also identified on the record as “Fraddo” and
       “Fra[.]”
     ____________________

        Anthony Harris and Hassan Durant saw [Baxter] and McBride
     enter the playground with “hoodies”3 on. People on the
     playground noticed [Baxter] and McBride because both men
     were wearing hoodies on a very hot day. The decedent turned
     around, noticed [Baxter] and McBride, and began to run.
     [Baxter] and McBride began shooting, and continued to shoot as
     they walked together side by side. The decedent ran in a
     “zigzag” pattern toward the 15th Street exit. The decedent
     stumbled out of the playground and fell in the middle of the
     street.
     ____________________
          3
        A “hoodie” is a long sleeved sweatshirt with a hood.
     ____________________

                                    -2-
J-S11024-16



           [Baxter] and McBride ran out of the playground, and headed
       east on Ontario Street, then south on 15th Street.         Rachel
       Marcelis saw [Baxter] and McBride running in her direction, and
       let them back in her car. While in the car, Rachel Marcelis heard
       [Baxter] and McBride talking about how McBride’s gun did not
       work and he could “not get any rounds off”. When they arrived
       at Daryl Mack’s aunt’s house, Rachel Marcelis asked McBride “if
       that was the person who shot De-Nyce.” McBride answered
       “Yes”. After they left the house, Rachel Marcelis, [Baxter] and
       McBride drove to Wilkes-Barre for the weekend, but only Rachel
       Marcelis returned the following Monday.

          An arrest warrant was issued for both [Baxter] and McBride
       on May 4, 2007. McBride was arrested in Wilkes-Barre on May
       7, 2007, after police were informed of his outstanding warrant.
       [Baxter] was found at a motel in Wilkes-Barre on July 10, 2007,
       after the police received a call regarding a domestic violence
       issue. [Baxter] was initially arrested for false identification, after
       he gave officers three false names.          He was subsequently
       arrested [i]n this case after further investigation by law
       enforcement.

Commonwealth v. Baxter, 996 A.2d 535 [437 EDA 2009] (Pa. Super.

2010) (unpublished memorandum at 1-2) (footnote omitted), quoting Trial

Court Opinion, 7/8/2009, at 2-3 (citations omitted).

       Baxter’s case proceeded to a jury trial on January 29, 2009.2 As noted

above, on February 5, 2009, the jury convicted him of first-degree murder,

criminal conspiracy, and PIC. On that same day, the court sentenced Baxter

to life imprisonment, without the possibility of parole, for the murder

conviction, with concurrent sentences of ten to 20 years’ imprisonment for

the conspiracy charge and one to two years’ incarceration for the PIC crime.
____________________________________________


2
    Baxter and McBride were tried together.



                                           -3-
J-S11024-16


On March 3, 2010, we affirmed his judgment of sentence, and the

Pennsylvania Supreme Court denied his petition for allowance of appeal on

February 23, 2011. See id., appeal denied, 17 A.3d 1250 (Pa. 2011).3

       On September 23, 2011, Baxter filed a pro se PCRA petition.4

       On November 2, 2012, Gary Server, Esquire[,] was appointed to
       represent [Baxter]. On September 24, 2013, Mr. Server filed an
       amended petition, raising various issues [Baxter] identified in his
       pro se filings. On November 13, 2013, [Baxter] filed a motion to
       proceed pro se. On June 9, 2014, after [Baxter] declined to
       participate in a video conference, he was transported from SCI
       Coal Township for a Grazier[5] hearing. At the conclusion of the
       hearing, this Court held that [Baxter]’s waiver of counsel was
       knowing, intelligent, and voluntary, permitted [Baxter] to
       represent himself, and appointed an investigator to assist him.
       On October 27, 2014, Craig Cooley, Esquire[,] entered his
       appearance as counsel for [Baxter].

PCRA Court Opinion, 3/4/5015, at 1-2.

       An evidentiary hearing was held on January 20, 2015. The PCRA court

limited the hearing to the following issues:

       -   Trial counsel’s ineffectiveness for failure to cross-examine a
           witness as to her immunity petition; and

       -   Trial counsel’s ineffectiveness for failure to examine Gregory
           Blackmon, Stefon Studivent, Kyle Carter, Darryl Mack, and
           Deborah McBride.
____________________________________________


3
  Mark Greenberg, Esquire, represented Baxter at trial and on direct appeal.
We note McBride also filed a direct appeal, which was docketed at 440 EDA
2009.
4
  Baxter also filed supplemental petitions on March 8, 2012, September 8,
2014, and September 16, 2014.
5
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



                                           -4-
J-S11024-16



Order, 11/21/2014.        On March 4, 2015, the PCRA court entered an order

and opinion, dismissing Baxter’s petition. This appeal followed.6

       Baxter raises the following issues on appeal:

       1. The PCRA court erred because the record contained sufficient
          evidence to find Mark Greenb[e]rg made several objectively
          unreasonable decisions that individually and collectively
          undermine confidence in Armel Baxter’s convictions
          warranting a new trial. U.S. Const. amends. V, VI, VIII, XIV;
          Pa. Const. art. §§ 8, 9, 23.[7]

              a. Mark Greenb[e]rg’s decision not [to] exercise Armel
                 Baxter’s compulsory process right, by not requesting
                 bench warrants for two subpoenaed witnesses – Kyle
                 Carter and Gregory Blackmon – was objectively
                 unreasonable and prejudiced Baxter because Carter and
                 Blackmon were both fact witnesses whose testimony
                 would have undermined Anthony Harris’s and Hassan
                 Durant’s identifications.

              b. Mark Greenb[e]rg’s decision not to subpoena Stephon
                 Studivant and present him at trial was objectively
                 unreasonable and prejudiced Armel Baxter because
                 Studivant was a fact witness whose testimony
                 significantly undermined Anthony Harris’s and Hassan
                 Durant’s identifications.

              c. Mark Greenb[e]rg’s decisions not to present Darryl
                 Mack and to cross-examine Rachel Marcelis with her
                 Cordell Young trial testimony and immunity agreements
                 with the Commonwealth were objectively unreasonable
____________________________________________


6
   The court did not order Baxter to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b).
7
    With respect to the first issue, we note Baxter focuses on the legal
standard regarding ineffectiveness of counsel and certain duties of counsel,
rather than specific incidences of counsel’s ineffectiveness. See Baxter’s
Brief at 35-37. Therefore, our analysis will begin with the first sub-issue.



                                           -5-
J-S11024-16


                and prejudiced Armel Baxter because they would have
                individually and cumulatively undermined Marcelis’s
                testimony. The absence of Mack’s testimony, Marcelis’s
                testimony at Cordell Young’s trial, and her immunity
                agreements with the Commonwealth undermines
                confidence in Baxter’s convictions warranting a new
                trial.

            d. Mark Greenb[e]rg’s cumulative errors undermine
               confidence in Armel Baxter’s conviction warranting a
               new trial where Baxter can introduce the exculpatory
               and    impeachment   evidence   not   presented   by
               Greenb[e]rg.

      2. Mark Greenb[e]rg violated Armel Baxter’s right to counsel by
         being “totally absent” when the trial court addressed the jury
         and answered its three questions and by sending an
         inexperienced attorney who had no criminal defense
         experience and knew nothing about the case or Baxter’s
         defense. The court should presume prejudice under these
         circumstances and grant a new trial. U.S. Const. amends. V,
         VI, VIII, XIV; Pa. Const. art. §§ 8, 9, 23.

Baxter’s Brief at 35, 37, 50, 54, 63, and 64 (some capitalization removed).

      Our standard and scope of review for the denial of a PCRA petition is

well-settled:

      [A]n appellate court reviews the PCRA court’s findings of fact to
      determine whether they are supported by the record, and
      reviews its conclusions of law to determine whether they are free
      from legal error. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level.

Commonwealth v. Charleston, 94 A.3d 1012, 1018-1019 (Pa. Super.

2014) (citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

      To be eligible for PCRA relief, [the a]ppellant must prove by a
      preponderance of the evidence that his conviction or sentence
      resulted from one or more of the enumerated circumstances
      found at 42 Pa.C.S. § 9543(a)(2) (listing, inter alia, the

                                     -6-
J-S11024-16


       ineffective assistance of counsel and the unavailability at the
       time of trial of exculpatory evidence, which would have changed
       the outcome of the trial had it been introduced).

Commonwealth v. Koehler, 36 A.3d 121, 131-132 (Pa. 2012).

       In Baxter’s first sub-issue, he contends counsel was ineffective for

failing to exercise Baxter’s compulsory process right pursuant to the 6 th

Amendment of the United States Constitution and Article 1, Section 9 of the

Pennsylvania Constitution by not requesting that bench warrants be issued

for two subpoenaed witnesses, Carter and Blackmon, who did not appear at

trial. Baxter’s Brief at 37. Baxter argues, “If subpoenaed witnesses fail to

appear for whatever the reason, e.g., bad weather, trial counsel must

exercise his client’s compulsory process rights and request the trial court’s

assistance by asking it to issue bench warrants to compel and produce these

favorable witnesses.”       Id. at 37.8    Baxter states Greenberg’s actions were


____________________________________________


8
    He further explains:

       Michael Wallace[, co-defendant’s counsel,] subpoenaed Carter
       and Blackmon, and Greenb[e]rg piggybacked off Wallace’s
       subpoena. Carter spoke with Greenb[e]rg the first day he went
       to court, while Blackmon signed a written statement saying the
       gunmen were 6’2” or taller. Thus, by subpoenaing both and
       speaking with Carter at trial, Greenb[e]rg knew or should have
       known the substance and significance of their testimony and how
       it undermined Harris’s and Durant’s identifications. Carter and
       Blackmon were both at court multiple days waiting to testify on
       Baxter’s behalf. Unfortunately, due to bad weather on February
       4, 2009, they incorrectly assumed the courthouse was closed.

(Footnote Continued Next Page)


                                           -7-
J-S11024-16


unreasonable based on the following: (1) counsel never made a proffer to

the court explaining the substance and significance of Carter’s and

Blackmon’s testimony, which would have undermined the identifications

made by Harris and Durant as well as Marcelis’ testimony; (2) if counsel had

made an on-the-record request and objection after the court denied the

request, he would have preserved the issue for appellate review, but by not

doing so, he waived the issue; and (3) Baxter suffered great harm because

counsel made certain the jury would not hear the relevant and exculpatory

testimony of Carter and Blackmon. Id. at 39-40. Furthermore, he states:

            To be clear, because Baxter is arguing Greenb[e]rg erred
      by not raising and preserving this issue for direct appeal, the
      Court’s prejudice analysis must focus on how this Court would
      have adjudicated this issue on direct appeal – not post-
      conviction. The distinction is significant in terms of prejudice.
      Had Greenb[e]rg properly preserved this issue for direct appeal,
      all Baxter would have had to demonstrate is that Carter’s and

                       _______________________
(Footnote Continued)

             Wallace requested a continuance to contact Carter and
      Blackmon, but he [n]ever made a proffer to the trial court
      explaining the significance of their proposed testimony and how
      it undermined the Commonwealth’s identification evidence, so
      the trial court denied his request. Greenb[e]rg, on the other
      hand, as this Court pointed out on direct appeal, never
      requested a continuance. More importantly, Greenb[e]rg never
      exercised Baxter’s compulsory process rights by requesting the
      trial court to issue bench warrants for Carter and Blackm[o]n.
      At the PCRA hearing, Greenb[e]rg and Wallace both said they
      never requested bench warrants because, if the trial court
      denied Wallace’s continuance request, they assumed it would
      have denied bench warrant requests.

Id. at 39.



                                            -8-
J-S11024-16


      Blackmon’s proposed testimony was both relevant and favorable
      to his defense.

Id. at 41 (italics in original).

      Lastly, with respect to this claim, Baxter asserts the PCRA court made

the following errors: (1) it erroneously stated Baxter presented this claim

on direct appeal and a panel of this Court determined it was “meritless;” (2)

by finding the panel previously adjudicated this claim, the PCRA court

misconstrued the substance of his claim and incorrectly analyzed it as a

failure to call a witness claim instead of a compulsory process issue; and (3)

the court improperly found the testimony of Harris and Durant was credible

merely because both men knew Baxter and “the jury ‘credited’ their

testimony.” Id. at 42.

      We begin with the following:

      In evaluating claims of ineffective assistance of counsel, we
      presume that counsel is effective. Commonwealth v. Rollins,
      558 Pa. 532, 738 A.2d 435, 441 (Pa. 1999). To overcome this
      presumption, Appellant must establish three factors. First, that
      the underlying claim has arguable merit. See Commonwealth
      v. Travaglia, 541 Pa. 108, 661 A.2d 352, 356 (Pa. 1995).
      Second, that counsel had no reasonable basis for his action or
      inaction. Id. In determining whether counsel’s action was
      reasonable, we do not question whether there were other more
      logical courses of action which counsel could have pursued;
      rather, we must examine whether counsel’s decisions had any
      reasonable basis.       See Rollins, 738 A.2d at 441;
      Commonwealth v. (Charles) Pierce, 515 Pa. 153, 527 A.2d
      973, 975 (Pa. 1987). Finally, “Appellant must establish that he
      has been prejudiced by counsel’s ineffectiveness; in order to
      meet this burden, he must show that ‘but for the act or omission
      in question, the outcome of the proceedings would have been
      different.’” See Rollins, 738 A.2d at 441 (quoting Travaglia,
      661 A.2d at 357). A claim of ineffectiveness may be denied by a

                                     -9-
J-S11024-16


      showing that the petitioner’s evidence fails to meet any of these
      prongs. Commonwealth v. (Michael) Pierce, 567 Pa. 186,
      786 A.2d 203, 221-22 (Pa. 2001); Commonwealth v.
      Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (Pa. 2000);
      Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701
      (Pa. 1998) (“If it is clear that Appellant has not demonstrated
      that counsel’s act or omission adversely affected the outcome of
      the proceedings, the claim may be dismissed on that basis alone
      and the court need not first determine whether the first and
      second prongs have been met.”). In the context of a PCRA
      proceeding, Appellant must establish that the ineffective
      assistance of counsel was of the type “which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt [or]
      innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
      See also (Michael) Pierce, 786 A.2d at 221-22;
      Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333
      (Pa. 1999).

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

      The Sixth Amendment of the United States Constitution provides, “In

all criminal prosecutions, the accused shall enjoy the right ... to have the

assistance of counsel for his defence.”      U.S.Const. amend. VI.   Likewise,

Article 1, Section 9 of the Pennsylvania Constitution states, “In all criminal

prosecutions the accused hath a right to be heard by himself and his counsel

....” Pa.Const. art. I, § 9.

      “It is clear that under both our state and federal constitutions, a
      criminal defendant has a right of compulsory process to obtain
      witnesses in his favor.”      Commonwealth v. Lahoud, 339
      Pa.Super. 59, 64, 488 A.2d 307, 310 (1985) (allocatur denied),
      quoting Commonwealth v. Allen, 501 Pa. 525, 531, 462 A.2d
      624, 627 (1983). “The right to compulsory process encompasses
      the right to meet the prosecution’s case with the aid of
      witnesses, and the right to elicit the aid of the Commonwealth in
      securing those witnesses at trial, both of which are fundamental
      to a fair trial.” Commonwealth v. Jackson, 457 Pa. 237, 243,
      324 A.2d 350, 354-355 (1974); Commonwealth v. Lahoud,

                                    - 10 -
J-S11024-16


     supra.      “Just as an accused has the right to confront the
     prosecution’s witnesses for the purpose of challenging their
     testimony, he has the right to present his own witnesses to
     establish a defense. This right is a fundamental element of due
     process of law.” Washington v. Texas, 388 U.S. 14, 19, 87
     S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967).            “[The]
     constitutional right, though fundamental, is not, however,
     absolute.” Commonwealth v. Jackson, supra 457 Pa. at 243,
     324 A.2d at 355. In order to compel the attendance of a witness
     at trial, it must be shown that the information possessed by the
     witness is material, i.e., capable of affecting the outcome of the
     trial, and that it is favorable to the defense. United States v.
     Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d
     1193 (1982).

Commonwealth v. McKenzie, 581 A.2d 655, 657 (Pa. Super. 1990).

     Even     though   case   law   is   very   limited   on   this   subject,   in

Commonwealth v. Twiggs, 331 A.2d 440 (Pa. 1975), the Pennsylvania

Supreme Court considered a substantially similar issue:

     In determining whether counsel’s failure to secure the
     attendance of the witness or to have the notes of his previous
     testimony read to the jury constituted constitutionally ineffective
     assistance of counsel, we are guided by the standards
     established in Commonwealth ex rel. Washington v.
     Maroney, 427 Pa. 599, 235 A.2d 349 (1967). There we held
     that

        “counsel’s assistance is deemed constitutionally effective
        once we are able to conclude that the particular course
        chosen by counsel had some reasonable basis designed to
        effectuate his client’s interests. The test is not whether
        other alternatives were more reasonable, employing a
        hindsight evaluation of the record. Although weigh the
        alternatives we must, the balance tips in favor of a finding
        of effective assistance as soon as it is determined that trial
        counsel’s decision had any reasonable basis.”

     Id. at 604, 235 A.2d at 352.




                                     - 11 -
J-S11024-16


     If counsel’s decision not to secure [the witness]’s appearance or
     to have the notes of [the witness]’s previous testimony read to
     the jury was based on a reassessment of its worth and a
     conclusion that it was of little or no value in the posture of this
     case, then that decision clearly had some reasonable basis
     designed to effectuate [the appellant]’s interests.       In such
     circumstances, counsel’s conduct would not constitute
     ineffectiveness. See Commonwealth ex rel. Washington v.
     Maroney, supra. Had counsel reached this decision on a basis
     designed to advance his client’s interest, this case would be
     analogous to those situations in which, as a matter of trial
     strategy, counsel decides not to call a witness at all. See
     Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975);
     Commonwealth v. Owens, 454 Pa. 268, 275, 312 A.2d 378,
     382 (1973); Commonwealth v. Karchella, 449 Pa. 270, 296
     A.2d 732 (1972); Commonwealth v. Ellis, 445 Pa. 307, 284
     A.2d 735 (1971); Commonwealth v. Hawkins, 445 Pa. 282,
     284 A.2d 730 (1971).

     If, however, counsel’s failure to seek compulsory process to
     obtain [the witness]’s testimony or to have his prior testimony
     read to the jury was the result of sloth or lack of awareness of
     the available alternatives, then his assistance was ineffective. In
     a case where virtually the only issue is the credibility of the
     Commonwealth’s witness versus that of the defendant, failure to
     explore all alternatives available to assure that the jury heard
     the testimony of a known witness who might be capable of
     casting a shadow upon the Commonwealth’s witness’s
     truthfulness is ineffective assistance of counsel.

Twiggs, 331 A.2d at 442-443.

     A review of the record reveals the following.     Counsel for McBride,

Michael Wallace, Esquire, subpoenaed both Carter and Blackmon to testify at

both defendants’ trial. On February 4, 2009, during the defense’s case-in-

chief, Wallace asked for a brief continuance to determine which witnesses

were there.   When he learned Carter and Blackmon were not in the

courthouse, he then called them to determine their whereabouts. Wallace


                                   - 12 -
J-S11024-16


stated Carter and Blackmon had been at the trial, and assured him they

would be there. He told the trial court that he assumed their absence was

based on the weather conditions. He attempted to ask for a continuance,

but the court interrupted him, stating there was no problem with public

transportation and there was no line outside the courthouse. Wallace then

asked for time to make additional phone calls, which the trial court granted.

See N.T., 1/20/2015, at 198-204.

       At the January 20, 2015, PCRA evidentiary hearing, Wallace testified

he did not obtain a bench warrant for the two men based on the following:

“[B]ecause the judge immediately said no, we’re moving forward, so it would

have been a waste of time, because if [the judge] wasn’t going to give me

an opportunity to go back and try and get them, she wasn’t going to give me

an opportunity to sit around and wait two days for a bench warrant.” Id. at

209. Wallace indicated he did object “to the fact that [the judge] told me to

go right on. I think the words are in the record, you’re taking my client’s

defense away from me, my defense, whatever I said.” Id.

       Greenberg also testified at the PCRA evidentiary hearing. He indicated

he worked jointly with Wallace “to get the witnesses in court” and

“coordinated   subpoenaing   these    witnesses.”   Id.   at   213,   241-242.

Greenberg stated, “The judge allowed me to follow Mr. Wallace’s lead when

it came to subpoena so we did not have to duplicate the process.”       Id. at

213.     Greenberg further testified the defense at trial was mistaken


                                     - 13 -
J-S11024-16


identification and hypothesized potential concerns with presenting Carter

and Blackmon as defense witnesses. Id. at 244-245. He noted they were

good friends of Baxter’s and based on his experience with juries, “if the

witness is a good friend, he or she has more of a bias than a total stranger.”

Id. at 245. Additionally, he stated that a witness could be impeached by his

or her criminal record but he could not remember if Carter or Blackmon had

criminal records.   Id.   Third, Greenberg testified, “[P]eople see different

things from different perspectives.    Whether or not a hoody would have

covered the face of a witness from one perspective doesn’t mean it would

have covered the face of a witness from a different vantage point.” Id.

      Lastly, Carter and Blackmon both testified at the PCRA hearing. The

court summarized their testimony as follows:

             Blackmon testified that he was at the basketball game
      where the shooting occurred, and that prior to the shooting he
      saw two tall, slender men in hooded sweatshirts approach the
      game. He said that he could not see their faces because the
      hoods obscured them. Blackmon asserted that he would have
      testified to these facts and that he appeared at trial. However,
      when asked why he did not testify, he initially explained that one
      of the attorneys said that he did not need Blackmon to testify.
      Later, Blackmon contradicted this testimony by stating that he
      did not appear for court because of the weather.

             Carter testified that he, too, was at the basketball game on
      the day of the shooting, and saw the hooded shooters but did
      not witness the actual shooting. Carter described the shooters
      as taller than himself but stated that he could not see their faces
      because of their hoods. Carter was inconsistent within his
      testimony regarding where he was located when the shooting
      began. During his testimony he stated he was in three different
      locations: just off the basketball court, sitting on a car, and
      running to get under a car. He was impeached with his affidavit

                                    - 14 -
J-S11024-16


      from October 14, 2013, in which he said he was running at the
      time of the shooting, which he admitted was wrong. Carter was
      also inconsistent regarding the reason he did not testify at trial.
      Carter said that he was present at the trial but did not testify
      because “[m]y services weren’t needed.” Carter did not mention
      anything regarding a snow storm or courts being closed until
      prompted by the District Attorney, after which he indicated he
      believed that court was cancelled.

PCRA Court Opinion, 3/4/2015, at 5 (record citations omitted).

      With respect to this claim, the PCRA court noted the following:
         2
             Carter and Blackmon were subpoenaed by McBride’s
         attorney, Michael Wallace, Esquire. However, it is clear
         from the record at trial that there was communication and
         cooperation between Mr. Greenberg and Mr. Wallace with
         regards to locating witnesses.
         3
             This Court notes that [Baxter]’s argument that trial
         counsel should have made a proffer to the trial court as to
         the testimony of Blackmon and Carter and pursued bench
         warrants was found to be meritless by [the] Superior
         Court. On appeal, [Baxter] argued that the court erred
         and abused its discretion in denying a continuance to the
         defense on February 4, 2009 for these witnesses.
         Although the Superior Court found that the claim was
         waived, it also found it to be meritless based on the fact
         that there were no guarantees that the witnesses would
         have shown up, should the trial have been continued.

Id. at 6, 7.

      In dismissing the claim, the PCRA court found Baxter had “failed to

establish that the witnesses were willing and able to cooperate on behalf of




                                    - 15 -
J-S11024-16


[Baxter] and that proposed testimony was necessary to avoid prejudice.”

Id. at 5.9 Specifically, the court determined:

             [Baxter] has also failed to establish that the proposed
       testimony of Carter, Blackmon, and Studivant was necessary to
       avoid prejudice as the testimony does not discredit the
       persuasive testimony provided at trial by Anthony Harris and
       Hassan Durant. On the day of the shooting, Durant was at the
       park when he noticed [Baxter] and McBride. Durant immediately
       paid attention to [Baxter] and McBride when they arrived at the
       park because it was a hot day and Durant thought it was odd
       that they were wearing hoodies. Durant was about twenty feet
       from the shooters when they shot Brown and “[he] seen [sic] it
       perfect.” Durant identified [Baxter] and McBride at trial and
       indicated that [he] had seen [Baxter] around the neighborhood
       for about a year before the shooting. Durant explained that
       although the shooters had hoods on, he could see their faces.

             Harris was also present in the park for the shooting.
       Harris saw [Baxter] and McBride before they entered the park
       and they put their hoods up. Harris saw [Baxter] pull out a gun
       and shoot Brown. Harris identified [Baxter] as the shooter and
       explained that Harris had known [Baxter] for over twenty years
       as he lived three doors down from him. Harris explained that
       even when [Baxter] and McBride had their hoods up, Harris
       could see their faces.

             Harris and Durant’s testimony was credited by the jury,
       and is not rendered vulnerable by the after-the-fact testimony of
       Carter, Blackmon, and Studivant.           Carter, Blackmon, and
       Studivant stated that they could not see the shooters’ faces
       because of their hoods, a claim that was implausible. The
       shooting took place during the daytime in front of a crowd; in
       those conditions, it is not plausible that a hood would completely
       obscure a person’s face. Further, neither Carter, Blackmon, nor
       Studivant knew [Baxter] prior to the shooting whereas both
____________________________________________


9
    We note the PCRA court also discusses another witness’s, Studivant,
testimony in conjunction with its analysis of Carter and Blackmon. Baxter’s
second argument concerns Studivant. Therefore, for ease of discussion, we
have included the court’s findings regarding Studivant as well.



                                          - 16 -
J-S11024-16


       Harris and Durant were well acquainted with [Baxter]. Carter,
       Blackmon, and Studivant’s incredible and vague assertion that …
       the shooters were taller than [Baxter], a man they did not know,
       would not have swayed the jury to discredit Harris and Durant’s
       testimony that Durant saw his neighborhood acquaintance and
       Harris saw his neighbor of over twenty years shoot Brown in
       broad daylight. [Baxter]’s claim that trial counsel was ineffective
       for failing to present testimony from Carter, Blackmon, and
       Studivant is meritless.

Id. at 7-8 (record citations omitted).

       Although we agree with the court’s ultimate determination, we do so

pursuant to alternative basis.10         In applying the ineffective assistance of

counsel standard, we find there was arguable merit to Baxter’s claim. See

Washington, supra. Counsel should have requested a bench warrant, as

opposed to a continuance, because Carter and Blackmon were subpoenaed.

Moreover, because the witnesses’ testimony would have directly contradicted

the testimony of the two primary Commonwealth witnesses, there was a

factual issue regarding identification that would have been for the jury to

resolve.


____________________________________________


10
    “This Court is not bound by the rationale of the trial court, and we may
affirm the trial court on any basis.” Commonwealth v. Williams, 73 A.3d
609, 617 n.4 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d
320 (Pa. 2014).

      Here, the PCRA court largely dismissed the claim based on credibility
determinations concerning the trial witnesses. In accordance with Twiggs,
this type of determination would not overcome the ineffectiveness hurdle.
Twiggs, 331 A.2d at 443. The court incorrectly assumes the jury would find
Carter and Blackmon’s testimony incredible.



                                          - 17 -
J-S11024-16


       Nevertheless, we are compelled to conclude trial counsel pursued a

reasonable trial strategy with respect Carter and Blackmon based on the

circumstances of the case. We note Greenberg worked jointly with Wallace

and therefore, Wallace’s actions with respect to procuring the witnesses

should be applied to Greenberg. Wallace subpoenaed Carter and Blackmon.

Both men stated they were at trial on the days leading up to the date they

were supposed to testify.         Therefore, both Greenberg and Wallace would

have no reason to believe that the two witnesses would not show up on the

designated day. Furthermore, Wallace did ask for time to call the missing

witnesses and ascertain their whereabouts. When he attempted to ask for a

continuance after failing to find them, the court denied his request.

Therefore, both counsels were correct to infer that the court would not grant

them even more additional time to procure a bench warrant and that such

an attempt would be futile.11

       Counsel’s strategy is further supported by the fact that on direct

appeal, a panel of this Court determined the trial court did not abuse its


____________________________________________


11
   It merits mention that Wallace even objected to the court’s denial of his
request for a continuance, asserting the court denied Baxter’s co-defendant
a defense. Furthermore, the PCRA court noted: “The bench warrant is not
meaningless. The bench warrant could have been issued and each of the
potential witnesses could have been held in contempt, but it would not have
helped the defense in this case when the [trial] judge said she’s not granting
a continuance for the witnesses to be located and brought in.” N.T.,
1/20/2015, at 256.



                                          - 18 -
J-S11024-16


discretion in denying the attempted request for a continuance.12          Baxter,

996 A.2d 535 [437 EDA 2009] (Pa. Super. 2010) (unpublished memorandum

at 13). Specifically, the panel opined:

       After a review of the record, it is clear that the trial court did not
       abuse its discretion in refusing to grant a continuance. Although
       the weather conditions were poor, court was in session, the
       weather did not prevent the jury or the other witnesses from
       appearing, and public transportation was still operational. N.T.,
       2/4/09, at 24.         Also, the potential witnesses did not
       communicate with [Baxter] or his counsel as to their absence.
       Id. [Baxter] hired a private detective to locate one of the
       witnesses and was unable to locate him. Id. at 18-19. No
       information was presented to the trial court that the witnesses
       would appear if a continuance was granted. As the court had no
       basis to believe that any further delay would have produced
       these witnesses, the trial court did not abuse its discretion in
       refusing to grant a continuance.

Id. at 14-15.

       Because the trial court was so decisive in its decision to move the case

forward and the panel determined the trial court did not abuse its discretion

with regard to this action, we cannot conclude Baxter’s counsel was

ineffective for failing to also pursue a bench warrant as it would have been

considered a non-meritorious or frivolous claim.        See Commonwealth v.
____________________________________________


12
     We acknowledge the panel primarily found Baxter waived the issue
because he, himself, did not request a continuance or object to the court’s
decision not to grant a continuance. Baxter, 996 A.2d 535 [437 EDA 2009]
(Pa.   Super.    2010)    (unpublished   memorandum      at    13),   citing
Commonwealth v. Cannady, 590 A.2d 356, 362 (Pa. Super. 1991)
(holding where the defendant did not object, and he did not join in his co-
defendant’s objection, the issue was waived as to the defendant for
purposes of appeal, even if the objection was identical to claim raised on
appeal), appeal denied, 600 A.2d 950 (Pa. 1991).



                                          - 19 -
J-S11024-16


Fears, 86 A.3d 795, 803 (Pa. 2014) (holding counsel cannot be deemed

ineffective for failing to raise a meritless claim).   Furthermore, we cannot

find Baxter’s counsel failure to seek compulsory process with respect to

Carter and Blackmon was “the result of sloth or lack of awareness of the

available alternatives[.]”   Twiggs, 331 A.2d at 443.      Accordingly, Baxter

failed to satisfy the reasonable trial strategy prong of the ineffective

assistance of counsel test. See Washington, 927 A.2d at 594. Therefore,

we reject Baxter’s first sub-claim of PCRA court error.

      Next, Baxter argues counsel was ineffective for not subpoenaing

Studivant and presenting him at trial. Baxter’s Brief at 50. Baxter states:

      Greenb[e]rg knew about Studivant because he wrote him before
      trial and Studivant spoke with Greenb[e]rg’s investigator before
      trial.   Even if Studivant did not speak with Greenb[e]rg’s
      investigator, the record, as the PCRA Court found, “is clear” that
      Greenb[e]rg knew of [or] should have known about Studivant’s
      testimony because, as the PCRA Court found, “there was
      communication and cooperation between Mr. Greenb[e]rg and
      Mr. Wallace with regards to locating witnesses.” Thus, despite
      knowing about Studivant’s testimony, as the PCRA Court found,
      Greenb[e]rg never subpoenaed him.

             At the PCRA hearing, Studivant’s testimony was consistent
      with Carter’s and Blackmon’s regarding the shooting: (1) he
      could not identify the gunmen because their hoodies were pulled
      tightly over their heads; (2) the gunmen were approximately
      6’1” to 6’2”; and (3) when people returned to the basketball
      courts several minutes after the shooting to assess the situation,
      he saw and heard Anthony Harris accuse Malik Ware of being
      one of the gunmen. These facts, as mentioned, would have
      been tremendously favorable to Baxter’s defense.




                                    - 20 -
J-S11024-16


Id. at 50-51. Baxter again argues the PCRA court misinterpreted his claim

by analyzing it as a failure to call a witness argument as opposed to a

compulsory process issue. Id. at 51.

      Here, the PCRA court stated the following:         “Studivant was not

subpoenaed, however, according to a letter from Mark Shaffer dated

December 2008, it is clear that trial counsel made multiple unsuccessful

attempts to locate Studivant.   Additionally, Studivant testified that he was

aware of [Baxter]’s trial and the need for his testimony.”        PCRA Court

Opinion, 3/4/2015, at 6 (citations omitted).      The court also found that

Studivant did not give credible testimony at the PCRA hearing with regard to

why he did not appear at trial. Id.

      The record supports the court’s finding. Multiple attempts were made

to contact Studivant. First, on September 3, 2008, Greenberg sent a letter

to Studivant, stating: “Mr. Baxter insists that he is innocent and advises that

you may have some relevant information about the case. Please contact me

at your earliest convenience so that we can talk about the case in greater

detail.” Baxter’s Post-Hearing Brief, 2/5/2015, at Exhibit 3. Approximately

three months later, Mark H. Shaffer, the hired private investigator, sent a

letter to Greenberg regarding the witnesses he was hired to locate.       With

regard to Studivant, Shaffer stated: “There was no answer at the time of

our arrival. We left a sealed envelope requesting that he telephone us. He




                                      - 21 -
J-S11024-16


has not telephoned.” Id. at Exhibit 5. Subsequently, on January 20, 2009,

Shaffer wrote a second letter to Greenberg, in which he averred:

            No record was found for [Studivant] in our databases. The
      provided residence address of 3433 N 16th Street, Philadelphia,
      PA 19140 is deeded to Deborah Willis as of 1999. No criminal
      record surfaced.

             We traveled to the provided residence address but on this
      occasion residents directed us to go across the street to 3444 N
      16th Street where the door was answered by a black female
      identifying herself only under the first name of Josephine and as
      the grandmother of Stefon [Studivant].

             She states that Stefon [Studivant] is away at college, does
      not live at home and has a cell phone. She refused to give us
      his cell number or the house number. She refused to provide us
      with his college address but did advise he is presently a student
      at Lincoln University, Oxford, PA.

            We gave Josephine the letter we had prepared in advance
      and related the urgency of Stefon [Studivant] telephoning us.
      She stated that she would only promise to pass the letter onto
      Stefon [Studivant]’s mother.

            We have not received a call.

Id. at Exhibit 6, pg. 2.

      At the January 20, 2015, hearing, Studivant testified Greenberg and

Shaffer never contacted him directly or subpoenaed him. N.T., 1/20/2015,

at 82. He also stated he came to the courthouse for one day of Baxter’s trial

but could not remember which day it was. Id. at 86.

      Again, Baxter has failed to establish Greenberg’s failure to seek

compulsory process with regard to Studivant was “the result of sloth or lack

of awareness of the available alternatives[.]    Twiggs, 331 A.2d at 443.


                                    - 22 -
J-S11024-16


Multiple attempts were made to ascertain Studivant’s whereabouts but none

were successful.   Studivant even admitted he was at the trial but did not

indicate he went up to Baxter or Greenberg to indicate his willingness to

testify.   The evidence surrounding Studivant demonstrated he was not

prepared to cooperate with Baxter’s defense.    As such, we agree with the

PCRA court that Studivant’s testimony as a willing witness was incredible.

See Commonwealth v. Pate, 617 A.2d 754, 760 (Pa. Super. 1992) (noting

credibility of witnesses in PCRA proceedings is exclusively within the

province of the trial court).   Accordingly, Baxter’s second ineffectiveness

sub-claim fails.

      Baxter’s third sub-issue involves counsel’s failure to effectively

undermine the testimony of Rachel Marcelis.        By way of background,

Marcelis testified she was driving the two co-defendants to Daryl Mack’s

aunt’s house when they made her stop at the schoolyard/playground and

drop them off.     She said she subsequently saw them running in her

direction, and let them back in the car. She heard the two men discuss how

McBride’s gun did not work and he could not fire any rounds.     She asked

McBride “if that was the person[, the victim,] who shot De-Nyce” and he

answered in the affirmative.    Baxter, 996 A.2d 535 [437 EDA 2009] (Pa.

Super. 2010) (unpublished memorandum at 2). Marcelis testified she drove

the two men to Mack’s aunt’s house and then to Wilkes-Barre, Pennsylvania.

Baxter states counsel was ineffective for not cross-examining Marcelis


                                    - 23 -
J-S11024-16


regarding her trial testimony from an unrelated case (the Cordell Young

trial13), and her immunity agreements with the Commonwealth.              See

Baxter’s Brief at 54. He also contends counsel failed to present Mack as an

impeachment witness with respect to Marcelis.          Id.   Mack would have

purportedly testified that he was at a party with Marcelis on the night before

the shooting took place, and observed her consuming numerous amounts

drugs and alcohol.       N.T., 1/20/2015, at 19-20.   He stated he did not see

Baxter at this party.       The following morning, he saw Marcelis driving her

vehicle with no passengers. Id. at 22. He asked her for a ride and she told

him that he could drive her car because he had a license.       Id. at 24. He

then drove to a paramour’s house and visited for approximately two hours

while Marcelis fell asleep in the vehicle. Id. at 25-26. Afterwards, he was

driving back to his neighborhood when he received a phone call about the

shooting. Id. at 27-28. Mack was not interviewed by investigators but did

speak with Wallace at the courthouse. Id. at 28-32. Consequently, Baxter

complains Greenberg failed to “present readily available witness testimony

and evidence capable of undermining Marcelis’s credibility.” Baxter’s Brief at

54.

____________________________________________


13
   Baxter alleges detectives “coaxed Marcelis to falsely implicate” Young in
connection with the murder of a woman named Fatima Whitfield to protect
her own interests. Baxter’s Brief at 56. Baxter does not provide any
background information regarding this non-related case. He does not recite
the statement or point to any part of it, which he claims is false.



                                          - 24 -
J-S11024-16


       First, Baxter states Greenberg never specifically spoke with Mack, but

rather relied on Wallace’s conversation with Mack to make the decision not

to call him. Id. at 55. Second, he asserts Greenberg did not adequately

interview Marcelis to obtain and review her allegedly fabricated May 3, 2007,

statement in the Cordell Young trial.14 Baxter also claims Mack’s purported

testimony contradicts Marcelis’s narrative of the events unfolding in relation

to the present case. He argues:

       A competent trial attorney could have persuasively argued
       detectives chose not to interview Mack because they coerced
       Marcelis’s May 3, 2007 statement and did not want to interview
       a witness who could expose their coercion.

                                               …

       Competent trial counsel could have also persuasively argued
       detectives chose not to interview Mack because they knew the
       eyewitness statements did not corroborate Marcelis’s narrative
       that, after the shooting, Baxter and McBride supposedly ran
       toward her SUV with a group of scared onlookers from the
       basketball courts. To hammer this point home, competent trial
       counsel would have highlighted the fact the Commonwealth did
       not present one witness who said they saw a white SUV near the
       basketball courts immediately before or after the shooting or
       who saw the gunmen jump into a white SUV immediately after
       the shooting.

____________________________________________


14
    A cursory review of the record reveals that this 2007 statement was not
included in the certified record. We note that it was mentioned in Baxter’s
post-hearing brief as Exhibit 2, but was not attached to the corresponding
brief. See Baxter’s Post-Hearing Brief at 4 n. 2. “It is the responsibility of
an appellant to ensure that the record certified on appeal is complete in the
sense that it contains all of the materials necessary for the reviewing court
to perform its duty.” Commonwealth v. Bongiorno, 905 A.2d 998, 1000
(Pa. Super. 2006) (en banc), appeal denied, 917 A.2d 844 (Pa. 2007).



                                          - 25 -
J-S11024-16


Id. at 56-57.    Third, Baxter maintains Greenberg should have impeached

Marcelis by introducing her immunity agreements with the Commonwealth in

the present matter and in the Cordell Young case. Id. at 57. Further, he

states:

      Despite having the opportunity to tell the whole truth, without
      fearing prosecution, Marcelis’s testimony at both trials cannot
      possibly be true. Her testimony at Cordell Young’s trial differed
      from her testimony at Baxter’s trial because, at Young’s trial, she
      said she fabricated her May 3, 2007 statement, but at Baxter’s
      trial she said her statement was true.

Id.   Baxter suggests that “all Greenb[e]rg did was cross-examine Marcelis

and get her to admit she occasionally heard voices when she did drugs” and

this testimony “did little, if anything, to the Commonwealth’s overall

narrative.” Id. at 58. Baxter also claims Marcelis’s marred testimony and

credibility   would   have    called   into     question   Harris’s   and   Durant’s

identifications. Id. at 59.

      To the extent Baxter argues counsel was ineffective for not cross-

examining Marcelis regarding her testimony at the Cordell Young trial, or her

allegedly contradictory statements at both trials, and for failing to put Mack

on the stand to demonstrate that detectives chose not to interview him

because they coerced Marcelis’s May 3, 2007 statement, we find these

arguments waived for failure to properly preserve the issue. A review of the

record reveals these claims were not contained in Baxter’s amended PCRA

petition or addressed at the January 2015 PCRA hearing. It merits mention

again that the PCRA court limited the hearing to two claims, neither of which

                                       - 26 -
J-S11024-16


touched upon these arguments.             Further, at the end of the hearing, the

court provided the parties with two weeks to file submissions. Counsel for

Baxter stated, “I know [Baxter] has done a tremendous amount of pleadings

already. I think you know the case very well. I’ll just highlight what’s here

and the case law.” N.T., 1/20/2015, at 295. Nevertheless, Baxter did raise

these new assertions in his post-hearing brief.        See Baxter’s Post-Hearing

Brief, 2/5/2015. However, because they were not included in the petition or

raised at the PCRA hearing, these arguments were not properly before the

PCRA court.15 See Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”). Accordingly,

we conclude these contentions are waived.               See Commonwealth v.

Wharton, 811 A.2d 978, 986 (Pa. 2002) (waiving claim where appellant

failed to raise it in PCRA petition).

       We now turn to the remainder of Baxter’s argument that was properly

preserved for appeal. With respect to his claim that counsel was ineffective

for failing to call Mack as a witness, we are guided by the following:

       When raising a claim of ineffectiveness for the failure to call a
       potential witness, a petitioner satisfies the performance and
       prejudice requirements of the [Strickland v. Washington, 466
       U.S. 668 (1984)] test by establishing that: (1) the witness
       existed; (2) the witness was available to testify for the defense;
       (3) counsel knew of, or should have known of, the existence of
       the witness; (4) the witness was willing to testify for the
____________________________________________


15
    This is evidenced by the fact that the PCRA court did not address these
claims in its Rule 1925(a) opinion.



                                          - 27 -
J-S11024-16


     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, 600 Pa. 329, 966 A.2d 523, 536
     (Pa. 2009); Commonwealth v. Clark, 599 Pa. 204, 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, 597 Pa. 402, 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’s testimony would have been helpful to
     the defense. Commonwealth v. Auker, 545 Pa. 521, 681 A.2d
     1305, 1319 (Pa. 1996). “A failure to call a witness is not per se
     ineffective assistance of counsel for such decision usually
     involves matters of trial strategy.” Id.

Commonwealth v. Sneed,          45    A.3d    1096, 1108-1109    (Pa.   2012).

Moreover,

     “[t]he inquiry of whether trial counsel failed to investigate and
     present mitigating evidence turns upon various factors, including
     the reasonableness of counsel’s investigation, the mitigation
     evidence that was actually presented, and the mitigation
     evidence that could have been presented.” Commonwealth v.
     Simpson, 620 Pa. 60, 66 A.3d 253, 277 (Pa. 2013) (citation
     omitted). The reasonable basis prong of an ineffectiveness claim
     does “‘not question whether there were other more logical
     courses of action which counsel could have pursued; rather, we
     must examine whether counsel’s decisions had any reasonable
     basis.’” [Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa.
     2011)] (citation omitted).

Commonwealth v. Treiber, 121 A.3d 435, 471 (Pa. 2015).

     Here, the PCRA court found the following:

     [Baxter] argues that trial counsel was ineffective for failing to
     present testimony from Darryl Mack. Mack testified that on the
     night before the shooting, he attended a party at the home of a
     man named Antoine. At that party, he saw Rachel Marcelis
     consume large amounts of alcohol, smoke PCP and marijuana,
     and take pills. He left the party, but saw Marcelis again the next
     morning; to him, she appeared to be inebriated. He asked for a

                                     - 28 -
J-S11024-16


     ride, and she suggested that he drive her white truck while she
     rode along. He drove to the Frankford section of Philadelphia, in
     order to visit a woman he was seeing. He visited this woman for
     approximately two hours and fifteen minutes, and when he
     returned to Marcelis’s truck, she was sleeping where he had left
     her in the passenger seat. Mack also testified that he showed up
     to testify at [Baxter]’s trial, but was told by co-defendant’s
     counsel that he should leave because his testimony would be
     unhelpful.

             At trial, Mr. Wallace, indicated that he decided not to call
     Mack as a witness as his testimony was not helpful. This Court
     cannot help but conclude that both Mr. Wallace and trial counsel
     exercised good judgment in refraining from offering Mack’s
     testimony, which failed to contradict Marcelis’s testimony and
     was redundant.4 Marcelis freely acknowledged at trial that she
     used Xanax, wet, marijuana, and alcohol on the night before the
     shooting, that she did so to an extreme degree, and that the
     substances were still affecting her on the day of the shooting.
     Mack’s testimony regarding Marcelis’s drug use was cumulative.
     Also, Mack’s testimony did not undermine Marcelis’s testimony
     that she was with [Baxter] and McBride during the shooting.
     Mack merely testified that he drove Marcelis’s car to his
     girlfriend’s house, left Marcelis in the car, and two hours later
     when he returned, she was in the car. Mack was driving Marcelis
     and her car back to Broad Street and Allegheny Avenue when a
     friend called Mack and informed him of Brown’s murder. Nothing
     in Mack’s testimony precludes the possibility that Marcelis drove
     [Baxter] and McBride to the shooting. Additionally, to the extent
     that Mack denies being present in the car with Marcelis, McBride,
     and [Baxter] at the time of the shooting, this Court finds this
     testimony incredible. Trial counsel was not ineffective for failing
     to present testimony from Mack.
     ____________________
        4
          Again, this Court notes that there was communication
       and cooperation between Mr. Greenberg and Mr. Wallace.
       Although the record states that Mr. Wallace told Mack to
       leave, Mr. Wallace stated this fact in front of Mr.
       Greenberg and [Baxter]. It is clear that Mr. Greenberg
       was aware of the fact that Mack had been told to leave and
       agreed with this decision.
     ____________________


                                    - 29 -
J-S11024-16


                                          …

            Finally, [Baxter] argues that trial counsel was ineffective
     for failing to cross-examine Marcelis on the basis that she had
     entered into an immunity agreement with the Commonwealth in
     exchange for her testimony. At this Court’s hearing in this
     matter, Mr. Greenberg testified that he chose not to cross-
     examine Marcelis as to the immunity agreement because he felt
     that it might actually bolster her credibility with the jury, both by
     further establishing the likelihood that she had been the getaway
     driver in this shooting, and by allowing the Commonwealth to
     point out that the immunity agreement required that she tell the
     truth at trial, and exposed her to criminal liability if she failed to
     do so. Because he had already gotten Marcelis to acknowledge
     her significant drug use during the time period in question, he
     felt that he had already called her reliability as a witness into
     question, and thus using the agreement would not offer much
     and might, in fact, backfire.

            Mr. Greenberg expressed a reasonable trial strategy, with
     a sound basis designed to effectuate the petitioner’s interests at
     trial. “Generally, where matters of strategy and tactics are
     concerned, counsel’s assistance is deemed constitutionally
     effective if he chose a particular course that had some
     reasonable basis designed to effectuate his client’s interests.”
     Commonwealth v. Puksar, 597 Pa. 240, 256-57, 951 A.2d 267,
     277 (2008)(quoting Commonwealth v. Miller, 572 Pa. 623, 819
     A.2d 504, 517 (2002)). “A chosen strategy will not be found to
     have lacked a reasonable basis unless it is proven ‘that an
     alternative not chosen offered a potential for success
     substantially greater than the course actually pursued.’”
     Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064
     (2006)(quoting Commonwealth v. Howard, 553 Pa. 266, 719
     A.2d 233, 237 (1998)). This Court agrees that cross-examining
     Marcelis as to the immunity agreement would have had, at best,
     greatly diminished returns given what had already been
     accomplished, and may have had the effect of bolstering her
     credibility to [Baxter]’s detriment. Further, this Court notes that
     the jury was aware that Marcelis was never charged with crimes
     resulting from the murder. Because trial counsel pursued a
     reasonable trial strategy, this claim must fail.

PCRA Court Opinion, 3/4/2015, 8-9, 11-12 (record citations omitted).


                                    - 30 -
J-S11024-16


     Based on our review, we agree with the PCRA court’s well-reasoned

analysis that no relief is due on this claim. First, we note the PCRA court

explicitly found Mack’s testimony incredible.   “[S]uch credibility findings, if

supported by the record, are binding on this Court.” Treiber, 121 A.3d at

471 (citations omitted). Second, with respect to Mack, Baxter would like us

to reweigh the evidence in his favor, which we may not do. Furthermore,

Mack could not account for two hours of Marcelis’s time as well as the

whereabouts of Baxter and McBride during the shooting.          Therefore, the

absence of his testimony was not so prejudicial as to have denied Baxter a

fair trial. See Treiber, supra. Lastly, with respect to Baxter’s contention

regarding evidence of Marcelis’s immunity agreement, we emphasize that

the question is not whether there were more logical courses of action but

whether counsel’s decision had any reasonable basis. See id.

Indeed, the following exchange occurred between Greenberg and Baxter’s

PCRA counsel regarding the issue:

     [PCRA Counsel]: So you saw harm, you say you saw harm in
     bringing up the immunity agreement?

     [Greenberg]: Yes. Well, I didn’t see a whole lot of good, but I
     think it could hurt him. The DA, for example, in redirect can
     emphasize the fact that the immunity agreement obligates her to
     tell the truth and I’ve been in cases – I’ve been in a million cases
     where DAs use plea agreements and immunity agreements to
     emphasize that the witness is obligated to tell the truth,
     otherwise the witness is going to be prosecuted for perjury, and
     I don’t want that to corroborate the witness’ testimony or
     credibility.




                                    - 31 -
J-S11024-16


     [PCRA Counsel]:      You think it’s impactful to the jury that
     somebody has to be instructed to tell the truth? That wouldn’t
     have any impact on the jury’s assessment of her credibility? The
     Commonwealth is giving the document informing you you must
     tell the truth, why? Aren’t you going to tell the truth anyway?

     [Greenberg]: Because there are consequences to not telling the
     truth and I have found that plea agreements and immunity
     agreements that are used that require the witness to tell the
     truth adds to the seriousness of the witness’ demeanor and state
     of mind when he or she testifies. So the answer is yes, it can
     come back to hurt the defendant

                                      …

           [Marcelis’s] lawyer was smart enough to protect his client
     from any murder prosecution by getting a broad immunity
     agreement. That’s the reason why she got the agreement, that
     was to protect her. But when I’m representing Mr. Baxter and I
     have a choice of whether or not to use that agreement, I have to
     evaluate what the purpose of the agreement is, where it is in the
     context of the facts of the case, and what can be done by the
     prosecutor on redirect examination to hammer home to the jury
     that this witness was obligated to tell the truth and that as a
     result she’s going to be that much more careful in recollecting
     things correctly and truthfully.

     [PCRA Counsel]: Or could a trier of fact say, well, she’s locked
     into this set of facts, if she goes outside of this set of facts that
     the prosecution wants her to testify to, she will get charged with
     perjury, therefore she’s simply following marching orders? Could
     a trier of fact reasonably make the inference that, you know
     what, she’s just following marching orders?

     [Greenberg]. Of course.

     [PCRA Counsel]: And would that benefit Mr. Baxter?

                                      …

     [Greenberg]: The answer is yes, but understand here that
     usually in that context the prosecutor brings that up on direct
     examination and then the defendant goes to town about the
     significance of the immunity agreement and locking a witness in.

                                    - 32 -
J-S11024-16



            In our case the prosecutor did not, so if I had brought it up
      on cross-examination or Mike Wallace had brought it up on
      cross-examination, that would have given the prosecutor the last
      word on redirect to elicit facts about that plea agreement that
      were basically favorable to him and would have hurt Mr. Baxter.

N.T., 1/20/2015, at 231-232, 234-235.        The PCRA court found, and we

agree, that Greenberg had acted reasonably by not introducing evidence

regarding Marcelis’s immunity agreement.         See PCRA Court Opinion,

3/4/2015, at 11-12. Accordingly, Baxter’s third sub-claim fails.

      With regard to Baxter’s remaining two claims, we will address them

together.   In his fourth sub-issue, Baxter asserts Greenberg’s cumulative

errors warranted a new trial so that Baxter could introduce exculpatory and

impeachment evidence not presented by Greenberg.         Baxter’s Brief at 63.

In Baxter’s final claim, he alleges Greenberg violated his right to counsel by

being “totally absent” when the trial court addressed the jury and answered

its three questions and by sending in his place an inexperienced attorney

who had no criminal defense experience and knew nothing about the case or

Baxter’s defense. Id. at 64.

      We find both claims were not properly preserved with the PCRA court.

See Pa.R.A.P. 302(a); see also Wharton, supra.           Baxter did not raise

either issue in his PCRA petition or at the PCRA evidentiary hearing. Rather,

he raised the fourth sub-issue in his post-hearing brief and the last

argument for the first time on appeal. Accordingly, both claims are waived

and we need not address them further.

                                    - 33 -
J-S11024-16


      Based on our disposition, we affirm the order of the PCRA court

denying Baxter relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2016




                                - 34 -
