J-S41038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MALIK BENNETT,

                            Appellant                No. 1418 EDA 2015


                Appeal from the PCRA Order May 14, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0314291-2003

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED JULY 11, 2016

      Malik Bennett (“Appellant”) appeals from the order entered in the

Court of Common Pleas of Philadelphia County denying him relief on his first

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

seq. He raises several issues alleging ineffective assistance of counsel and

the denial of due process of law. We affirm.

      The PCRA court aptly summarizes the procedural and factual history of

the case as follows:

      On June 1, 2009, following a jury trial [] before this Court [Court
      of Common Pleas], [Appellant] was found guilty of first degree
      murder [], carrying a firearm on a public street [], and
      possessing an instrument of crime (PIC).[] That same day,
      [Appellant] was sentenced to the mandatory term of life in
      prison.[]

      On June 9, 2009, [Appellant] filed post-sentence motions, which
      were denied by [the Court of Common Pleas] on October 6,
      2009. [Appellant] filed a timely notice of appeal.[] The Superior

*Former Justice specially assigned to the Superior Court.
J-S41038-16


     Court affirmed [Appellant’s] judgment of sentence on April 13,
     2011.[] On June 6, 2011, [Appellant] filed an “Application for
     Leave to File a Petition for Permission to Appeal out of Time,”
     and on January 3, 2012, our Supreme Court denied application
     for permission to file petition for allowance of appeal nunc pro
     tunc.[] The Supreme Court’s order specifically stated that the
     application was denied “without prejudice to petitioner to file a
     Post Conviction Relief Act petition in the Court of Common Pleas
     of Philadelphia County requesting reinstatement of his allocator
     rights nunc pro tunc.”

     On May 1, 2012, [Appellant] filed a timely PCRA petition.[]
     [Appellant] raised multiple issues in his first PCRA petition, one
     of which was appellate counsel’s ineffectiveness for failing to file
     a requested petition for allowance of appeal. Following an
     evidentiary hearing on January 11, 2013, [the Court of Common
     Pleas] reinstated [Appellant’s] right to petition for allowance of
     appeal nunc pro tunc, and denied the other claims raised by
     [Appellant].    Subsequently, [the Court of Common Pleas]
     acknowledged that the other claims should instead have been
     dismissed without prejudice, and the Superior Court agreed.[]
     Thereafter, our Supreme Court received [Appellant’s] petition for
     allowance of appeal and denied it.[]

     On June 16, 2014, [Appellant] filed an amended PCRA petition,
     re-raising the other original claims that were raised in his earlier
     PCRA petition and adding two new claims.[] The Commonwealth
     filed a motion to dismiss on November 13, 2014, and [Appellant]
     filed a response to the Commonwealth’s motion to dismiss on
     January 28, 2015.         Having reviewed the pleadings and
     conducted an independent review, [the PCRA court] determined
     that an evidentiary hearing pursuant to Pa.R.Crim.P. 908 was
     warranted on only one of [Appellant’s] claims.[] Following the
     evidentiary hearing on May 14, 2015, [the PCRA court]
     dismissed [Appellant’s] claim in open court, and dismissed the
     remainder of [Appellant’s] claims in a written Order that same
     day.[] This timely appeal followed.

     On February 9, 2003, [Appellant] and Ramone Randolph
     (Randolph) attended a birthday party at Neil’s R & R Hideaway
     (Bar) at 33rd and Reed Streets in South Philadelphia. The party
     ended in the early morning hours, and, like the other attendees,
     [Appellant] and Randolph left the Bar and lingered outside. At
     approximately 2:20 a.m., as Randolph was sitting in the driver’s

                                    -2-
J-S41038-16


     seat of his car, [Appellant] approached the car and shot six
     times through the closed driver’s side window. Four of the shots
     hit Randolph, who later died at the Hospital of the University of
     Pennsylvania.

     There was a large number of people who were either standing
     outside the Bar or sitting in their cars near the Bar when the
     shooting occurred.    Ronnetta Williams was standing in the
     middle of the street when she heard the gunshots and looked
     up. She saw [Appellant] running away from the car with a gun
     in his hand.    She then approached the car and saw that
     Randolph had been shot.          Another partygoer, Teahonda
     Wilkerson, was also standing outside the Bar when the shooting
     occurred. She heard the shots, looked up, and saw [Appellant]
     run away from Randolph’s car and run through Stinger Park
     (Park), which was across the street from the Bar. Tanisha
     Woods had also attended the party and was sitting in a car
     outside the Bar with her sister-in-law and heard the shots.
     Moments after the shooting, she got a call on her cell phone that
     her brother, Anthony Woods, was chasing [Appellant] as he fled
     the scene of the shooting. Ms. Woods ran up the block and saw
     her brother in pursuit of [Appellant]. Ms. Woods saw a gun in
     [Appellant’s] hand and was afraid that [Appellant] would shoot
     her brother, so she yelled to him to stop pursuing [Appellant],
     and he complied.[]

     [Appellant] was also seen running down the street by two
     witnesses who had not attended the party. Raymond White[,
     Randolph’s cousin], was standing outside of his mother’s house
     near the Bar and across the street from the Park; he heard the
     shots coming from the direction of the Bar and saw a male
     wearing a red, white, and blue jacket and wearing a hat running
     through the Park immediately afterwards. The victim’s nephew,
     Khayree Gay, was also walking near the Bar and saw a man
     wearing a baseball cap and jacket running through the Park.

     Ballistics evidence showed that six shots were fired, all of which
     were fired from the same gun.         Four of these bullets hit
     Randolph; two shots hit Randolph’s upper back, and two hit his
     left arm. The gun was never recovered.

PCRA Court Opinion, filed Sept. 22, 2015, at 1-4.

     Appellant raises the following issues for our review:

                                    -3-
J-S41038-16


      I.    [DID] THE PCRA COURT DEN[Y] DUE PROCESS OF
            LAW GUARANTEED BY THE STATE AND FEDERAL
            CONSTITUTIONS WHEN IT DENIED THE PCRA
            PETITION   WITHOUT  REVIEWING   THE  TRIAL
            TRANSCRIPTS[?]

      II.   [DID] THE PCRA COURT DEN[Y] DUE PROCESS AND
            ERR[] WHEN IT DENIED THE [INEFFECTIVE
            ASSISTANCE OF COUNSEL] CLAIMS WITHOUT
            CONSIDERING THE TOTALITY OF FACTS AND
            CIRCUMSTANCES[?]


      III. [DID] THE PCRA COURT DEN[Y] DUE PROCESS AND
           ERR[] WHEN IT FAILED TO CONSIDER THE
           [INEFFECTIVE ASSISTANCE OF COUNSEL] CLAIM
           FOR FAILURE TO INTERVIEW ANTHONY WOODS
           DISTINCT FROM THE FAILURE TO CALL ANTHONY
           WOODS AS A DEFENSE WITNESS[?]


      IV.   [DID] THE PCRA COURT DEN[Y] DUE PROCESS AND
            ERR[] WHEN IT DENIED THE [INEFFECTIVE
            ASSISTANCE OF COUNSEL] CLAIMS WITHOUT
            CONSIDERING THEM HOLISTICALLY AS OPPOSED TO
            ITEM-BY-ITEM[?]

Appellant’s brief at 2-3.

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

well-settled:

      Our standard of review of the denial of a PCRA petition is limited
      to examining whether the evidence of record supports the
      court's determination and whether its decision is free of legal
      error. Commonwealth v. Conway, 14 A.3d 101 (Pa.Super.
      2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This
      Court grants great deference to the findings of the PCRA court if
      the record contains any support for those findings.
      Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007),
      appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).               “[A]
      petitioner is not entitled to a PCRA hearing as a matter of right;
      the PCRA court can decline to hold a hearing if there is no
      genuine issue concerning any material fact and the petitioner is

                                    -4-
J-S41038-16


     not entitled to post-conviction collateral relief, and no purpose
     would be served by any further proceedings.” Commonwealth
     v. Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal
     denied, 597 Pa. 715, 951 A.2d 1163 (2008); Pa.R.Crim.P.
     907(1). “A reviewing court on appeal must examine each of the
     issues raised in the PCRA petition in light of the record in order
     to determine whether the PCRA court erred in concluding that
     there were no genuine issues of material fact and in denying
     relief without an evidentiary hearing.”      Commonwealth v.
     Derrickson, 923 A.2d 466, 468 (Pa.Super. 2007), appeal
     denied, 594 Pa. 685, 934 A.2d 72 (2007).

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015).

     Further, a PCRA petitioner will be granted relief only when he proves,

by a preponderance of the evidence, that his conviction or sentence resulted

from the “[i]neffective assistance of counsel 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.A. § 9543(a)(2)(ii). As we have recognized:

     It is well-established that counsel is presumed to have provided
     effective representation unless the PCRA petitioner pleads and
     proves all of the following: (1) the underlying legal claim is of
     arguable merit; (2) counsel's action or inaction lacked any
     objectively reasonable basis designed to effectuate his client's
     interest; and (3) prejudice, to the effect that there was a
     reasonable probability of a different outcome if not for counsel's
     error.

     The PCRA court may deny an ineffectiveness claim if the
     petitioner's evidence fails to meet a single one of these prongs.
     Moreover, a PCRA petitioner bears the burden of demonstrating
     counsel's ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010) (case

citations omitted) (quoting Commonwealth v. Natividad, 595 Pa. 188,

207, 938 A.2d 310, 321 (2007)) (citations omitted).

                                   -5-
J-S41038-16



      Appellant first charges the PCRA court with having denied him due

process of law by allegedly failing to refer to transcripts of his criminal trial

prior to denying his PCRA petition. Specifically, Appellant states that support

for this claim lies in the docket sheet, which shows trial transcripts were

transmitted well after the certified record was. This indicates, he says, that

the transcripts were in storage and, thus, not available to the PCRA court at

the time it conducted its review of Appellant’s collateral appeal.

      The PCRA court denies this allegation with the assertion in its Pa.R.A.P.

1925(a) opinion that it conducted an independent review of the entire trial

record.   It notes, further, that Appellant voiced no concerns during PCRA

proceedings that the record was incomplete in any way, and it denounces

this claim as nothing more than an undeveloped allegation unsupported by

the record and unpreserved with a timely objection while the PCRA court

retained jurisdiction over the matter. For its part, the Commonwealth notes

that “[t]he Court of Common Pleas’ website indicates that the notes of

testimony from defendant’s trial were uploaded on November 13, 2009, and

October 8, 2009, respectively.” Appellee’s brief at 8.

      Our review of the record substantiates the PCRA court’s response, as

both its Order and Opinion of May 14, 2015, dismissing all but one of

Appellant’s PCRA claims and its Pa.R.A.P. 1925(a) Opinion of September 22,

2015, are replete with references and accurate pinpoint citations to notes of

testimony from Appellant’s trial.   We, therefore, reject Appellant’s vaguely



                                      -6-
J-S41038-16



presented, facial attack on the PCRA court’s review of his petition as

unsupported by the record.

      Appellant’s next claim, related to his first, alludes to allegedly critical

trial evidence that he claims the PCRA court either misconstrued or

altogether ignored to his prejudice. Appellant predicates this argument on

an assertion that the PCRA court committed legal error by analyzing his

ineffective assistance of counsel claims in a light most favorable to the

Commonwealth as verdict winner.           Evidence of this error, Appellant

maintains, is seen where the PCRA court concludes that “five eyewitnesses

testified that they heard gunshots and saw [Appellant], wearing a red,

white, and blue jacket, run from the victim’s car or run through the park

immediately after the shots were fired[.]”     Order Dismissing PCRA Claims,

filed May 14, 2015 at 5.     In fact, Appellant posits, the witnesses did not

testify uniformly to this effect, but, instead, provided somewhat varying

accounts of a young man wearing a red, white, and blue jacket—similar to

the jacket worn by Appellant that night--running away from the scene and

through a nearby park, with only Ronnetta Williams and Tanisha Woods

identifying the man as Appellant. Such inconsistencies, Appellant maintains,

undermined proof of identity at trial.

      Initially, we agree with the Commonwealth’s reply that Appellant has

waived this issue by failing to raise it in his Pa.R.A.P. 1925(b) statement.

Apparently, Appellant intends this claim to provide the substance and detail

to his first claim, which was raised in his Rule 1925(b) statement but in such

                                      -7-
J-S41038-16



a vague and nonspecific fashion that it left the PCRA court unable to surmise

what portion of the trial record it had allegedly overlooked or misconstrued.

We observe that, generally,

        issues not raised in a Rule 1925(b) statement will be deemed
        waived for review.      An appellant's concise statement must
        properly specify the error to be addressed on appeal. In other
        words, the Rule 1925(b) statement must be “specific enough for
        the trial court to identify and address the issue [an appellant]
        wishe[s] to raise on appeal.” Commonwealth v. Reeves, 907
        A.2d 1, 2 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919
        A.2d 956 (2007). “[A][c]oncise [s]tatement which is too vague
        to allow the court to identify the issues raised on appeal is the
        functional equivalent of no [c]oncise [s]tatement at all.” Id.
        The court's review and legal analysis can be fatally impaired
        when the court has to guess at the issues raised. Thus, if a
        concise statement is too vague, the court may find waiver.

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011) (some

internal citations omitted).

        Moreover, even if we were to review the claim, we would find it

without merit. Initially, Appellant misapprehends our standard and scope of

review in a collateral appeal, for this Court analyzes PCRA appeals “in the

light   most   favorable   to   the   prevailing   party   at   the   PCRA   level.”

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super. 2012); see

also Spotz, 84 A.3d 294, 311 (Pa. 2014) (“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.”).

        Put another way, this Court reviews appeals from the denial of
        collateral relief under the actual prejudice standard, not the less
        stringent harmless error standard. See Spotz, supra at 315,
        320. Therefore, this Court's review of the PCRA court's order

                                       -8-
J-S41038-16


       need not and does not accept Appellant's “version of the facts.”
       [] (emphasis omitted).

Commonwealth v. Charleston, 94 A.3d 1012, 1025-26 (Pa.Super. 2014)

(citation omitted). Viewed in a light most favorable to the Commonwealth

as verdict winner, eyewitness testimony at trial clearly implicated Appellant

as the man who shot the victim and fled.            Accordingly, Appellant cannot

prevail on his claim that the PCRA court prejudicially mischaracterized the

trial record.

       In his third issue, Appellant argues that trial counsel rendered

ineffective assistance of counsel for failing to conduct a pre-trial interview of

Anthony Woods, who was at the Bar on the night of the shooting. According

to Appellant, Mr. Woods would have proved a valuable witness because he

denied ever having seen Appellant shoot Randolph or chasing Appellant

through the nearby park immediately after the shooting as the prosecution

said he did through statements given by Woods’ sister and other

eyewitnesses.1        This   testimony     would   have   been   critical,   Appellant
____________________________________________


1
  Appellant contends that the PCRA court erroneously credited Tanisha
Woods with testifying that she saw her brother chasing Appellant after the
shooting, when, in fact, this story was “something concocted by the
detectives and inserted into a statement.” Appellant’s brief at 29. At trial,
Tanisha Woods testified as follows:

       Q:    After you heard the gunshots where did you go?
       A [by Tanisha Woods]:[She got a phone call and walked one
       block up from the shooting].
       Q:    At some point when you were around that area, did you
       see your brother?
       A:    Uh-huh.
(Footnote Continued Next Page)


                                           -9-
J-S41038-16



maintains,   because       the    jury   specifically   asked   the   court   during   its

deliberations why the man who chased the shooter was not brought in to

testify. N.T. 6/1/09 at 133. At the PCRA hearing, Mr. Woods testified that

he was inside the Bar when he heard gunshots and stayed with Randolph

until emergency response arrived.

                       _______________________
(Footnote Continued)

      Q:    What was he doing?
      A:    Running across the park.
      Q:    Was he chasing someone?
      A:    Yeah.
      Q:    Who was he chasing?
      A:    Malik.
      Q:    Do you see Malik in court today?
      A:    Yes.
      Q:    Can you point him out?
      A:    [Indicating, by point of finger, the defendant]
      Q:    What did you do when you saw your brother chasing
      Malik?
      A:    I called my brother back.
      Q:    Why did you call your brother back?

      ***
      A:  I didn’t want my brother to get hurt.
      Q:  Did your brother listen to you and did he stop chasing?
      A:  Yes.

N.T. 5/28/09 at 166-67.       Friend and neighbor Ronnetta Williams also
identified Anthony Woods as the man chasing Appellant after the shooting.
N.T. at 76-77. At the PCRA hearing, Tanisha Woods confirmed she called
her brother back while he was chasing the shooting suspect, although she
now said she could not have identified Appellant as the man whom her
brother was chasing. N.T. 5/14/15 at 61-66. The PCRA court, however,
deemed incredible Tanisha Woods’ recanting of the identification she made
of Appellant at both the investigation scene and at trial.




                                           - 10 -
J-S41038-16


            When raising a claim of ineffectiveness for the failure to
     call a potential witness, a petitioner satisfies the performance
     and prejudice requirements of the [ineffectiveness] 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 defense; and (5) the
     absence of the testimony of the witness was so prejudicial as to
     have denied the defendant a fair trial. To demonstrate [ ]
     prejudice, a petitioner must show how the uncalled witnesses'
     testimony would have been beneficial under the circumstances of
     the case. 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. A failure to
     call a witness is not per se ineffective assistance of counsel[,] for
     such decision usually involves matters of trial strategy.

Commonwealth v. Sneed, 45 A.3d 1096, 1108–09 (Pa. 2012) (citations

and quotation marks omitted).

     At the PCRA hearing, Anthony Woods was adamant that he knew

nothing about the shooting other than seeing Randolph covered in blood in

the aftermath. He denied seeing the shooting, knowing who committed it,

and chasing the suspect on the night it happened. He testified that he made

no attempt to learn anything about who shot his good friend in the many

years that passed between the shooting and the day of his PCRA testimony.

He testified that he would have appeared as a trial witness if he had been

subpoenaed, but the sum and substance of his testimony would have been

that he knew nothing.

     Appellant has not sufficiently demonstrated that this testimony could

have substantially aided his defense such that counsel’s failure to interview

Woods prejudiced him at trial.        Woods’ testimony did not exculpate



                                    - 11 -
J-S41038-16



Appellant; it simply removed himself from every aspect of the shooting of

Ramone Randolph.       By repeatedly disclaiming any knowledge of who

committed the shooting or who may have pursued the shooter immediately

afterward, Woods established only that a pre-trial interview of him would

have been fruitless, as his statement had little to no probative value.

Indeed, Appellant fails to demonstrate how Anthony Woods’ almost reflexive

denial of knowledge, as exhibited at the PCRA hearing, would have

impeached the credibility of the many eyewitness accounts naming Appellant

as the man wearing the blue, red, and white jacket who ran from the scene

carrying a gun. This claim, therefore, lacks merit.

      In Appellant’s fourth and final enumerated question presented, he

raises seven additional allegations of trial counsel’s ineffective assistance

both individually and collectively. They include: (1) a reiteration of counsel’s

failure to conduct an investigation including the failure to interview Anthony

Woods; (2) counsel’s failure to play a recording of the “9-1-1” call in which

the caller suggests there is more than one shooter when she says “they’re

outside shooting.   The bar just let out, and they’re ju. . .it’s like the OK

corral out there.”; (3) counsel’s failure to lodge a hearsay objection to the

introduction of the autopsy report; (4) counsel’s failure to object to the

Commonwealth’s calling a witness to provide prior inconsistent statements of

some eyewitnesses who proved reluctant to testify—presumptively one of

the detectives, though the brief fails to identify the witness or where in the

notes of testimony his objectionable testimony appears; (5) counsel’s failure

                                     - 12 -
J-S41038-16



to object to a conviction based solely on unsworn testimony; (6) counsel’s

failure to object to the trial court’s instruction (not provided in the brief),

which “merge[d] premeditation and deliberation into one synonymous

lump”; (7) a second reiteration of counsel’s ineffective failure to interview

Anthony Woods; and (8) a claim that all the above instances of alleged

ineffective assistance, when considered collectively, would have prejudiced

Appellant.

       In its Rule 1925(a) opinion, the PCRA court addresses each individual

claim of ineffective assistance of counsel and rejects it on first or second

prong grounds, save for the autopsy-based claim, which the court

determined could not have prejudiced Appellant. See PCRA Court Opinion at

9-22. After careful review of the record, we concur with the PCRA court’s

cogent and comprehensive expression of rationale in dismissing these claims

and, accordingly, we adopt its opinion in this regard.2
____________________________________________


2
  With respect to Appellant’s claim of cumulative prejudice, we note that the
jurisprudence of this Commonwealth has recognized:

       We have often held that no number of failed claims may
       collectively warrant relief if they fail to do so individually.
       However, we have clarified that this principle applies to claims
       that fail because of lack of merit or arguable merit. When the
       failure of individual claims is grounded in lack of prejudice, then
       the cumulative prejudice from those individual claims may
       properly be assessed.

Commonwealth v. Spotz, 18 A.3d 244, 320–321 (Pa. 2011) (citations and
quotation marks omitted). Significantly, however, there is no prejudice to
aggregate in the present case, for the PCRA court resolved only one issue
(Footnote Continued Next Page)


                                          - 13 -
J-S41038-16



     Order is Affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2016




                       _______________________
(Footnote Continued)

with resort to the prejudice prong and concluded there was no prejudice at
all—a disposition with which we agree.




                                           - 14 -
                                                                                                                   Circulated 06/24/2016 02:11 PM




                                                 PHILADELPHIA COURT OF COMMON PLEAS
                                                        CRIMINAL TRIAL DMSIQN


                      COMMONWEAL TH
                                                                                                          CP-51-CR-0314291-2003
                                                                                                          1418 EDA 2015
                                        v.


                      MALIK BENNETT                                                              l=ILED
                      Sarmina,J.                                                                 SEP 2 2 2015
                      September 22, 2015                                                   . Criminal A        ~     .
                                                                                         FirstJudfcia,PoPea[::i
                                                                                                             Untt
..
                                                                                                       istnctot PA
     \                                                                         OPINION
     Ii
     i                PROCEDURAL HISTORY
     l

                               On June 1, 2009, following a jury trial' before this Court, Malik Bennett (hereafter,

                      petitioner) was found guilty of first degree murder (H-1), carrying a firearm on public streets (M~1),

                                                                                 2
                      and possessing instruments of crime (PIC)(M-1).                That same day, petitioner was sentenced to the

                  mandatory term3 of life in p.rison.4 Notes of Testimony (N.T.) 6/1/09 at 144-45.

                              On June 9, 2009, petitioner filed post-sentence motions, which were denied by this Court on

                  October 6, 2009. Petitioner filed a timely notice of appeal.5 The Superior Court affirmed

                  petitioner's judgment of sentence on April 13, 2011.6                 On June 6, 2011, petitioner filed an



                  1   At trial, petitioner was represented by William Spade, Esquire.

                  2   18 Pa.C.S. §§ 2502(a), 6108, and 907(a), respectively.

                  3   18 Pa.C.S. 1102(a).

                  4As to the charge of carrying a firearm on public streets, petitioner was sentenced to a concurrent term of not less than
                  one nor more than five years imprisonment. As to the charge of PIC, petitioner was sentenced to a concurrent term of
                  not less than one nor more than five years imprisonment. N.T. 6/1/09 at 144-45.
          i
          .1
              .   s On direct appeal, petitioner was represented by Alan Tauber, Esquire, who was retained by petitioner's family .

                  6   Commonwealth v. Bennect, No. 3202 EDA 2009, slip op. (Pa.Super., April 13, 2011) (memorandum opinion).'
          "Application for Leave to File a Petition for Permission to Appeal out of Time," and on January 3,

          2012, our Supreme Court denied application for permission to file petition for allowance of appeal

          nunc pro tunc.7 The Supreme Court's order specifically stated that the application was denied "without

          prejudice to petitioner to file a Post Conviction Relief Act petition in the Court of Common Pleas of

          Philadelphia County requesting reinstatement of his allocatur rights nunc pro tune."

                   On May 1, 2012, petitioner filed a timely PCRA petition.8 Petitioner raised multipleissues in

          his first PCRA petition, one of which was appellate counsel's ineffectiveness for failing to file a

         requested petition for allowance of appeal. Following an evidenti.ary hearing on January 11, 2013,

          this Court reinstated petitioner's right to petition for allowance of appeal nuncpro tune, and denied

         the other claims raised by petitioner. Subsequently, this Court acknowledged that the other claims

         should instead have been dismissed without prejudice, and the Superior Court agreed.9 Thereafter,

         our Supreme Court received petitioner's petition for allowance of appeal and denied it.10

                  On June 16, 2014, petitioner filed an amended PCRA petition, re-raising the other original

      claims that were raised in his earlier PCRA petition and adding two new claims." The

     Commonwealth filed a motion to dismiss on November 13, 2014, and petitioner filed a response to

     the Commonwealth's motion to dismiss on January 28, 2015. Having reviewed the pleadings and

     conducted an independent review, this Court determined that an evidentiary hearing pursuant to



     7
          Commonwealth v.    Bennett, No. 89 EM 2011, slip op. (Pa. Jan. 3, 2012).
     &    Cheryl Sturm, Esquire, represents petitioner on collateral attack.

     9 On November 19, 2013, the Superior Court affirmed th.is Court's mling as to ineffectiveness of counsel for failing to
     pursue ol~rot11r and vacated this Court's decision on the other claims, which were to be pursued after the resolution of
     the alloratur petition.

     10
          Commonwealth v. Malik Bennett, No. 101 EAL 2013, slip op. Qune 27, 2013).

     11 Petitioner also filed a motion for recusal on July 15, 2014, alleging that this Court had "pre-judged"   the issues. The



'
I
·l
     motion was denied by this Court on September 9, 2014.




                                                                      2
                                                                                                                                    /
                                                                                                                                   l~
     Pa.R.Crim.P.   908 was warranted on only one of petitioner's claims.12 Following the evidentiary

     hearingon May 14, 2015, this Court dismissed petitioner's claim in open court, and dismissed the

     remainder of petitioner's claims in a written Order that same day.13 This timely appeal followed.

  FACTS

            On February 9, 2003, petitioner and Ramone Randolph (Randolph) attended a birthday

 party at Neil's R & R Hideaway (Bar) at 33'd and Reed Streets in South Philadelphia. N.T. 5/28/09

 at 162-63. The party ended in the early morning hours, and, like the other attendees, petitioner and

 Randolph left the Bar and lingered outside. Id. At approximately 2:20 a.m., as Randolph was sitting

 in the driver's seat of his car, petitioner approached the car and shot six times th.rough the closed

 driver's side window. Ml at 69, 153. Four of the shots hit Randolph, who later died at the Hospital

 of the University of Pennsylvania. N.T. 5/29/09 at32-33.

            There was a large number of people who were either standing outside the Bar or sitting in

 their cars near the Bar when the shooting occurred. Ronnetta Williams was standing in the middle

of the street when she heard the gunshots and looked up. N.T. 5/28/09 at 73-74. She saw

petitioner running away from the car with a gun in his hand. Id,. at 74. She then approached the car

and saw that Randolph had been shot. Id. at 77-78. Another partygoer, Teahonda Wilkerson, was

also standing outside the Bar when the shooting occurred. N.T. 5/29/09 at 46-48. She heard the

shots, looked up, and saw petitioner run away from Randolph's car and run through Stinger Park

(Park), which was across the street from the Bar. Ml at 48-49. Tanisha Woods had also attended

the party and was sitting in a car outside the Bar with her sister-in-la~ and heard the shots. N.T.




12
  On May 14, 2015, this Court held an evidentiary hearing with respect to petitioner's claim that trial counsel was
ineffective for failing to call as a witness Anthony Woods, also known as "Tez,"

13
   At the conclusion of the evidentiary hearing, this Court informed petitioner that his remaining claims were dismissed,
and handed petitioner and counsel a copy of the dismissal Order, which explained th.is Court's reasons for dismissal.
N.T. 5/14/15 at 85.

                                                            3
     5/28/09 at 162-64. Moments after the shooting, she got a call on her cell phone that her brother,

     Anthony Wo_ods, was chasing petitioner as he fled the scene of the shooting. Id. at 165. Ms. Woods

     ran up the block and saw her brother in pursuit of petitioner.           Id. Ms. Woods saw a gun in

     petitioner's hand and was afraid that petitioner would shoot her brother, so she yelled to him to stop

     pursuing petitioner, and he complied. Id. at 166, 171; 176.14

             Petitioner was also seen running down the street by two witnesses who had not attended the

     party. N.T. 5/28/09 at 115; N.T. 5/29/09 at 136. Raymond White15 was standing outside of his

     mother's house near the Bar and across the street from the Park; he heard the shots coming from

     the direction of the Bar and saw a male wearing a red, white, and blue jacket and wearing a hat

 running through the Park immediately afterwards. N.T. 5/28/09 at 115, 123. The victim's nephew,

 Khayree Gay, was also walking near the Bar and saw a man wearing a baseball cap and jacket

 running through the Park. N.T. 5/29/09 at 136-37.

            Ballistics evidence showed that six shots were fired, all of which were fired from the same

 gun. N.T. 5/28/09 at 195, 200. Four of these bullets hit Randolph; two shots hit Randolph's upper

 back, and two hit his left arm. Id. at 152. The gun was never recovered. l!i at 195.

LEGAL ANALYSIS

            Petitioner has raised ten issues on appeal.16

        1. This Court denied due process oflaw guaranteed by the state and federal constitutions when
           it denied the PCRA petition without a review of the entire record.

       2. This Court abused its discretion when it denied the motion for recusal.



u Ms. Woods' testimony was largely consistent w.ith a statement she had given during her police interview after the
shooting. The only major discrepancy in her testimony at trial was that, during her police interview, she stated that she
saw the gun in petitioner's hand while her brother was chasing him, and in her trial testimony she denied that she bad
seen the gun. N.T. 5/28/09 at 170- 72.

IS~-     White happened to be Randolph's cousin.

16   This Court has rephrased petitioner's claims for ease of disposition.

                                                                4
          3. This Court erred when it ruled that      Mr. Woods was not a credible witness.

          4. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for failing
             to play the 9-1-1 tape.

          5. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for failing
             to object to the ad.mission of the autopsy report on the grounds that it was testimonial
'I
·I           hearsay in violation of the Confrontation Clause.


l         6. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for failing
             to object to the Commonwealth's trial tactic of calling a witness for the sole purpose of
             introducing the witness's statement and convicting petitioner based on alleged prior
             inconsistent statements of its witnesses.

          7.    This Court erred by dismissing petitioner's claim that trial counsel was ineffective for failing
                to object on the grounds that petitioner's conviction was based solely on unsworn
                statements in violation of the Confrontation Clause.

          8. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for failure
             to request an instruction on the element of "deliberation" in a case of first degree murder.

         9. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for failing
            to interview and call as a witness Anthony Woods.

         10. Petitioner is entitled to relief based upon the cumulative effect of the errors.

     1. This Court denied due process of law guaranteed by the state and federal constitutions
     when it denied the PCRA petition without a review of the entire record.

               First, petitioner claims that this Court denied him due process of law guaranteed by the state·

     and federal constitutions when it denied the PCRA petition without a review of the entire record.

     Specifically, petitioner claims that "[i]n this case, the PCRA Unit did not have the entire record,

     which makes it impossible for the PCRA Court to review the record." Statement of Matters

     Complained of on Appeal, 6/8/15, at 2. Petitioner, however, failed to state which portion ofthe

     record the PCRA Unit was' supposedly missing. As petitioner has not proven this claim, it fails.

               To determine whether any of petitioner's claims merited a hearing, this Court conducted an

     independent review of the trial record, petitioner's filings, as well as the Commonwealth's filings.

     Petitioner's vague allegation that the PCRA Unit did not have the entire record in this case, without


                                                          5
     more, does not entitle petitioner to relief.17 Petitioner provides nothing in support of this                claim

     aside from his bare assertion of it. In order to be eligible for relief under the PCRA, the petitioner

     must "plead and prove" each ineffectiveness claim in his PCRA petition. Commgnwealth v. Liebel,

     825 A.2d 630, 632 (Pa. 2003), quoting 42 Pa.CS.A.§ 9543(a)(2)(ii). As petitioner has not proven th.is

     claim, it fails.

 2. This Court abused its discretion when it denied the motion for recusal.

              Petitioner's second claim is that this Court abused its discretion when it denied petitioner's

 motion for recusal. Petitioner claims that, after petitioner's right to petition for allowance of appeal

 was restored by this Court, and the remaining claims were dismissed, this Court should have recused

 itself because it had already pre-judged the remaining issues contained in the PCRA petition.

 Because this Court did not in fact pre-judge the issues in bis PCRA claim, and because petitioner

 cannot point to any support for his claim that this Court exhibited bias, unfairness, or impropriety,

 this claim fails.

             In petitioner's initial PCRA petition, he raised multiple issues, one of which was appellate

 counsel's ineffectiveness for failing to file a requested petition for allowance of appeal. Following an

evidentiary hearing on January 11, 2013, this Court reinstated petitioner's right to petition for

allowance of appeal nsmcpro tune, and denied the other claims raised by petitioner. N.T. 1/11/13 at

148-54. So that petitioner understood the reasons why his other claims were denied, and could

therefore decide whether or not to file an appeal regarding the dismissal of any ofthose issues, this

Court explained on the record its reasons for its dismissal of petitioner's remaining cla.i.tns. ~ at



17 Petitioner's counsel has been counsel on this case since prior to the filing of the initial PCRA petition on May 1, 2012.
This is the first time this Court is hearing any complaint that the PCRA Unit did not have the complete record in this
case. And, she never asserted that her representation of petitioner for PCRA purposes was impeded by an incomplete
record. For purposes of the PCRA, an issue has been waived if "the petitioner could have raised it but failed to do so ..
. in .a prior state postconviction proceeding." 42 Pa.C.S. § 9544(b). As petitioner is now raising this claim for the first
tun, on 'PP''' of th, dismissal of hi, PCRA petition, it has been waived, and foil, fo, that reason as well,           r~
                                                             6
     143-54.     Subsequently, this Court realized that the other claims should instead have been dismissed

     without prejudice, and noted this in its 1925(a)       Opinion." The Superior Court agreed and vacated

     this Court's dismissal of the remaining claims in petitioner's PCRA petition,_ so that they could be

     pursued after the resolution of petitioner's petition for allowance of appeal to out Supreme Court.

     Thereafter, our Supreme Court received petitioner's petition for allowance of appeal and denied                        it.

     When petitioner re-filed his substantive PCRA claims, and added two new claims thereto, he also

     filed a motion for recusal, alleging that this Court had "pre-judged" the issues that were being

     refiled. -On September 9, 2014, this Court denied petitioner's motion for recusal.

               In the motion, petitioner, without citing to any prejudicial statements made by this Court,

 argued:

               There is no question that the judge who presided over the numerically "first" PCRA has pre-
               judged the issues which Petitioner now presents in what must be considered· his "first"
               PCRA. Petitioner has a right to a full and fair heating of his first _PCRA. There is at the
               minimum, an appearance of impropriety in the same judge presiding over the PCRA Petition
               that is now before the Court and the appearance of prejudice. Recusal is required.

               ( ... J
               The current PCRA Judge has expressed a fixed opinion regarding the issues contained in Mr.
               Bennett's PCRA petition that is now before the court, even though some of the issues would
               require an evidentiary hearing. The public record made at the conclusion of the evidentiary
               hearing held on January 11, 2013 in this case has irrevocably called into question the judge's
               impartiality and there is nothing the judge can do to change the record.

Petitioner's_ Motion fot; Recusal, 7 /11/14, at 9, 11.

               At the conclusion of the evidentiary hearing held on January 11, 2013, this Court stated that

the claims had been reviewed         by the Court, and were being _dismissed as meritless, and explained the




11At the conclusion of the cvidentiary hearing on January 11, 2013, this Court stated that ordinarily, with requests for
reinstatement of appellate rights 111111( pro 11111(, substantive PCRA claims usually are not .raised until the appellate
proceedings are finished. N .T. 1 /11 /13 at 149. However, since the substantive issues had been presented by PCRA
counsel, and this Court had reviewed them, this Court decided to address all of the PCRA claims raised .i,o "oac fell
swoop." kt PCRA counsel made no objection at that time, and did not ask the Court to hold a decision on the
substantive PCR.A. claims in abeyance. Id.
                                                                                                                       no
                                                                                                                      c/:
                                                             7
          Court's reasoning.     Aside from that, petitioner has failed to produce any evidence of this Court's

          bias, prejudice, or unfairness.     Petitioner cannot cite to anything       in the record in which this Court

          expressed impropriety. "It is the burden of the party requesting recusal to produce evidence

          establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to

          preside impartially." Commonwealth v. Birdsong, 650 A.2d 26, 30 (Pa. 1994), citing Commonwealth

          v. Abu-Jama!, 720 A.2d 79 (Pa. 1998).

                  This Court carefully considered each of the claims raised in petitioner's current PCRA

          petition anew, and, in fact, granted an evidentiary hearing on one of the claims petitioner raised. ·As

          this Court at no ti.me expressed prejudice with respect to petitioner's PCRA petition, petitioner's

          motion for recusal was properly dismissed, and this claim fails.19

          3. This Court erred when it ruled that Mr. Woods was not a credible witness.

                  Petitioner's third claim is that this Court erred when it ruled that Mr. Woods was not a

      credible witness. Petitioner claimed that, had Mr. Woods been interviewed and called as a defense

      witness, there is a reasonable probability that the outcome at trial would have been different. As this

      Court's credibility determination of Mr. Woods' testimony was supported by the facts of record, this

      claim fails.

                 At the PCRA stage, the PCRA court, as factfinder, is required to make credibility

     determinations regarding witnesses. Commonwealth v. Medina, 92 A.3d 1210, 1219 (Pa.Super.

     2014).

                 In support of his claim that trial counsel was ineffective for failing to interview and present

     the testimony of Anthony Woods, petitioner submitted an affidavit signed by Mr. Woods, which

     states the following: Anthony Woods, known as "Tez," was not contacted by petitioner's attorney ·



     19   One could say any time a judge files a 907 Notice prior to dismissal of the claims, the PCRA petition has been pre-   {
·\
 I
 I
     ~                                                             8
                                                                                                                           J,
     at the time of trial, and would have been willing to testify   if he was contacted. At the time of the

     shooting of Ramone Randolph, Woods was inside Neil's R&R Hideaway, and was not chasing

     petitioner. Woods did not see petitioner with a gun. Anthony Woods Affidavit. 5/14/2013. Upon

     review of this claim and Mr. Woods' affidavit, this Court granted petitioner an evidentiary hearing,

     which was held on May 14, 2015.

            At the hearing, following Mr. Woods' testimony, this Court determined that Mr. Woods was

     not a credible witness, and that his testimony would not have changed the outcome at trial. N.T. ·

. 5/14/15 at 85. At the evidentiary hearing, Mt. Woods testified to the information contained in his

 affidavit, which claimed that he was interviewed by police a day or two after the shooting at 811' and

 Race Streets, but never signed a written statement." ~ at           9, 25.

            When questioned regarding why he did not come forward with this information at the tune

 of    trial, Mr. Woods stated that he wanted nothing to do with the situation:

           The Court:       Well, five years ago would you have come at the time of trial?
            [ ... ]
           Mr. Woods:       Well, yeah, I probably would have come at the trial. I would have to be
                            subpoenaed. Yeah, I would have come to testify, absolutely.
           The Court:       Why would you have to be subpoenaed?
           Mr. Woods:       Because I didn't sign no statement. I wasn't subpoenaed. I mean, why-
                            why I got to be in court if my friend - my friend got killed. I know a guy
                            from the neighborhood, I didn't want no parts of nothing. I didn't want to
                            be involved with nothing and nothing.
           [ ... J
           ADA Paul:       So your best friend gets killed and you don't want to know anything about
                           who murdered him or what - you didn't want to follow the trial of someone
                           who killed your friend?
           Mr. Woods:      Listen, ma'am, what you don't understand, I grew up in the streets. I don't
                           want no parts. There are certain codes I just go by, bottom line. I don't
                           want no parts. I don't want to be involved.
           The Court:      Excuse me, what code?
           Mr. Woods:      I just don't - I don't want to be involved with nothing. I don't want my
                           name involved with nothing.



20
   Assistant District Attorney Paul stated on the record that she searched the file, and could find no interview or
statement from Anthony Woods. N.T. 5/14/15 at 70. This statement was not "evidence" in the case, as statements of
counsel are not evidence.

                                                         9
             N.T. 5/14/15 at 30-33.

                     There were a number of inconsistencies throughout the entirety of Mr. Woods' testimony.

             At trial, Mr. Woods' sister, Tanisha Woods, whom he stated that he' sees at least twice a week, ·

             testified that she saw her brother chasing petitioner through the Park after the shooting. N.T.

             5/14/15 at 29. Mr. Woods testified at the evidentiary hearing that,_despite liv.ing at.his mother's

             home and seeing his sister at least twice a week, he had no idea that his sister testified at petitioner's

             trial to that effect Id. at 36. However, Mr. Woods' affidavit makes clear that he was aware that he
 l
-].
.;          was reportedly seen chasing petitioner through the Park that night. In his affidavit, he stated, "I was

            not chasing Malik Bennett at the time Randolph was shot." Id. at 6, 36; Exhibit A. Mr. Woods

            claimed that, although he had conversations with individuals in his neighborhood about this case, it

            was never brought up that his sister had testified, and, in fact, had had to be taken into custody and

            compelled to testify. N.T. 5/14/15 at 34, 38.

                    When questioned regarding why Mr. Woods would change his mind and come forward with

            this information over ten years later, Mr. Woods stated: "Actually, I got locked up, actually, if you

            want to be honest." Id. at 41. Mr. Woods went on to explain that, while in custody, he met and

            spoke with many friends of petitioner's, whom he would laugh and joke with about things that

            happened in the neighborhood. Id. at 41-42.

                   At the evidentiary hearing, Mr. Woods' sister, Tanisha Woods, was called to testify by the

            Commonwealth. She stood by her trial testimony and police statement, and refuted her brother's

            affidavit and evidentiary hearing testimony. ~      Exhibit C-1, Tanisha Woods Police Statement. Ms.

            Woods confirmed that she did not want to testify at trial, and was therefore taken into custody and
                                                                                             .                     .
            compelled to testify. N.T. 5/14/15     at 59. At the hearing, Ms. Woods recollected that, following the

            shooting, she was in a vehicle with her sister-in-law, when she received a phone call telling her that
      ·,I
            her brother was out there. ~ at 60-61. She then jumped out of the vehicle and saw her brother
       I
       I
       !                                                        10
                                                                                                                d,)
          chasing someone through the Park. Id. at 61. Ms. Woods fell to her knees                    in the middle of the

          street and began yelling to her brother to come back because she did not want him to get hurt.                       l!h
          at 61, 63. Mr. Woods stopped chasing petitioner, and ran back towards his sister.                    li   at 61. The


..        two had a conversation in the middle of the street, and then they got into the vehicle with Ms .
 !
      Woods' sister-in-law, and drove home.               Id. at 61-62.

                 Having considered the totality of the testimony at             trial," as well as at the evidentiary hearing,

      this Court made a proper determination that Mr. Woods was not a credible witness, and dismissed

      this claim. As this determination was supported by the factual record, and within the discretion of

      this Court, this claim falls.

      4. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for
      failing to play the 9-1-1 tape.

                 Petitioner's fourth     claim is that this Court erred in dismissing petitioner's claim that trial

      counsel was ineffective for failing to play a 9-1-1 tape, which portrayed events "in a way that

      conflicts with the prior statements of eyewitnesses, and squares with any autopsy report which

     indicates that the decedent was not shot at dose range."22 Because the decision by trial counsel not

     to play the 9-1-1 tape at trial was a reasonable trial strategy, this claim lacks merit, and was properly

     dismissed by this Court.

                According to the Pennsylvania Supreme Court in Commonwealth v. Balodis, 747 A.2d 34,

     343 (Pa. 2000), counsel is presumed effective, and under 42 Pa.C.S.                   § 9543(a), petitioner has the

     burden of proving ineffective assistance of counsel.                 In order to be eligible for PCRA relief due to

     ineffective assistance, petitioner is required to prove that such assistance "so undermined the truth-



     21At trial, multiple witnesses corroborated Ms. Woods' testimony that, following the shooting, petitioner was seen
     running away from the scene. S« Statement of Facts, supra.

     22 The

                                                                                                                           Jy
              autopsy report, to which petitioner actually objects, did not indicate that the decedent was not shot at close raoge.
     ::::~:e~othlngill the report indicated that th, shooting o::ua,d at close "ngc, that would be an impermissible
          determining process that no reliable adjudication     of guilt or innocence could have taken place."      42

          Pa.CS.    § 9543(a)(2)(ii). Petitioner "must prove (1) that the underlying claim has arguable merit, (2)

          that counsel's conduct was without a reasonable basis designed to effectuate his or her client's

          interest, and (3) that counsel's ineffectiveness prejudiced (petitioner)." Commonwealth v. AJlen, 833

          A.2d 800, 802 (Pa.Super, 2003) (citations omitted). "All three prongs of this test must be satisfied.

          If [petitioner] fails to meet even one prong of the test, his conviction will not be reversed on the

          basis of ineffective assistance of counsel." Conunonwealth v. O'Bipos, 849 A.2d 243, 249

          (Pa.Super. 2004).

                   As a general rule, '"trial strategy is a matter best left to counsel and [] a defendant is not

         entitled to relief simply because the strategy is unsuccessful."' Cotnmonwealth v. McMaster, 666

         A.2d 724, 732 (Pa.Super. 1995), quotingCommo!\wealth v. Tippens, 598 A.2d 553, 556 (Pa.Super.

         1991).

                   Trial decisions ... are within the exclusive province of counsel. Counsel will not
                   be declared ineffective where, as here, his trial strategy had a reasonable basis
                   designed to effectuate his client's interest ... and appellant has failed to show
                   that the alternatives not chosen offered a potential for success substantially
                   greater than the strategy and tactics actually utilized.

         Commonwealth v. Metzger, 441 A.2d 1225, 1229-30 (Pa.Super. 1981)(citations omitted).

                   The test for deciding whether counsel had a reasonable basis for his action or inaction is

         "whether no competent counsel would have chosen that action or inaction, or, the .alternativenot

         chosen, offered a significantly greater potential chance of success." Commonwealth v. Stewart, 84

         A.3d 701, 707 (Pa.Super. 2014), appeal denied, 93 A.3d 463 (Pa. 2014). Counsel's decisions are

         considered reasonable if they effectuate the client's interests. 14..

                  · Petitioner, who provided no transcript of the 9-1-1 tape to this Court, claims that, on the

'I       tape, the female caller can be heard saying, "Ah ...      I'm at the comer of 33'd and Reed and they're
 '   I




                                                              12
      outside shooting.      The bar just let out, and they're ju ...      it's like the OK Corral out there." Because

      trial counsel had a reasonable basis for not playing the 9-1-1 tape at trial, this claim fails.

                 Petitioner's only support for this claim is that the 9-1-1 tape says "they're" shooting, which

      suggests that more than one person was firing shots." Without citing to the record, petitioner states

      that the Commonwealth's theory was that ''only Mr. Bennett was firing shots." This claim is

      without merit.

                 Under the second pr<;>ng of the ineffectiveness test, trial counsel's decision not to play a 9-1-

      1 tape in which a woman described the shooting for which petitioner was charged as "just like the

      OK Corral," was a reasonable one. Not one witness at trial even suggested there was an additional

      shooter, nor did the ballistics evidence support such a claim. Five eyewitnesses testified that they

     heard gunshots and saw petitioner, wearing a red, white, and blue jacket, run from the victim's car or

     run through the Park immediately after the shots were fired: Ronnetta Williams, who was standing

     in the middle of the street when she heard the gunshots, testified that she saw petitioner running

     away from the car with a gun in his hand. Teahonda Wilkerson, also standing outside when the

     shots were fired, testified that she saw petitioner run away from the victim's car and run through the

     Park across the street. Tanisha Woods testified that after she heard the shots, she received a

     telephone call notifying her that her brother, Anthony Woods, was chasing a male as he fled the

     scene of the shooting. Ms. Woods testified that she then ran up the block and saw her brother

     chasing petitioner. Raymond White, standing outside of his mother's house at the time of the

     shooting, also testified that he saw a male run through the Park immediately after the shots were

     fued. Finally, Khayree Gay, the victim's nephew, testified that he was walking 'down the street and

     saw a male running through the Park after he heard the shots. After hearing the testimony of five


l
II   23 Though   petitioner discusses what the 9-1-1 tape says, it was not submitted with either the amended petition   or with
'    petitioner's response to the Commonwealth's motion to dismiss.
'
                                                                 13
      eyewitnesses who,     in sum, directly or circumstantiall~ saw petitioner flee the scene _with a gun in his

      hand> counsel's decision not to alert the jury that the setting on that stteet corner was comparable to

      the Wild West was a reasonable one. Therefore, this· Court properly determined that this claim

      lacked merit, and    it fails.
,.    5. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for
      failing to object to the admission of the autopsy report on the grounds that it was
      testimonial hearsay in violation of the Confrontation           Clause.

                Petitioner's fifth claim is that trial counsel was ineffective for failing to object to the

      admission of the autopsy report on grounds that it was testimonial hearsay in violation of the

      Confrontation Clause of the Sixth Amendment.          Although Dr. Gulino based his testimony on the

      findings of Dr. McDonald, because petitioner suffered no prejudice as a result of this,        this Court did

     not err   in dismissing   this claim, and it fails.

               In Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011). the defendant was charged with

     driving under the influence (DUI). At trial, a forensic lab report of the defendant's blood alcohol

     content as analyzed and prepared by the New Mexico Department of Health was offered into

     evidence. The report was completed, signed and certified by an analyst who was not called to testify.

     li   at 2711-12.   A different analyst testified as to the procedures and equipment used but admitted

     that he had no involvement with the specific sample.        Id. at 2712.

               (S]urrogate testimony of the kind (the testifying witness] was equipped to give could not
               convey what [the certifying analyst] knew or observed about the events bis certification
               concerned, i.e. the particular test and testing process he employed.     Nor could such surrogate
               testimony expose any lapses or lies on the certifying analyst's part.

     Id. at 2715.

               In Corrunonwealth v. Yohe, 39 A.3d 381 (Pa.Super. 2012), adoctor testified about a blood

     sample in a DUI case. The doctor "did not handle appellee's blood sample, prepare portions for

     testing, place the prepared portions in the testing machines, or retrieve the portions after testing."




                                                                                                              1
     Id. at 389. But he did "certify the results of the testing and author the report sought to be admitted

                                                           14                                          (1\
  as evidence against appellee."   Id. at 390. The Superior Court found that distinction to be

 dispositive.

          At trial, Dr. Anthony Gulino, as Chief Medical Examiner, testified regarding the autopsy

 report that had been prepared by Dr. Greg McDonald:

          ADA ZARAllO: Dr. Gulino, you've indicated that you're the chief medical examiner,
          How long have you held that position, sir?
          DR. GULINO: Since April of 2008.
          ( ... J
         ADA ZARALLO: Dr. Gulino, you reviewed a specific file upon my request. And who was
          the decedent's name? Who was the decedent?
         DR. GULINO: The decedent was Ramone Randolph.
         ADA ZARALLO: Now, you did not perform this autopsy; is that correct?
         DR. GU.UNO: That's correct.
         ADA ZARALLO: Who did perform it?
         DR. GULINO: Dr. Greg McDonald, who is no longer with the Medical Examiner's Office.
        ADA ZARALLO: Did you, in fact, review Dr. McDonald's findings?
         DR. GULINO: Yes, I did.
        ADA ZARALLO: Beyond this type of report, did you review all of the other - anything else
         that still existed with respect to his findings?
        DR. GULINO: I reviewed all of the documents in the Medical Examiner's case file as well
        as the photographs which were taken at the time of the autopsy.
        ADA ZARALLO: Was a manner of death determined in the autopsy of Mr. Randolph?
        DR. GULINO: Yes.
        ADA ZARALLO: What was the manner of death?
        DR. GULINO: The manner of death is homicide.
        ADA ZARALLO: Was a cause of death determined?
        DR. GULINO: Yes.
        ADA ZARAllO: What was the cause of death, sir?
        DR. GULINO: Multiple gunshot wounds.
        ADA ZARAILO: Were the specific locations gunshot wounds determined?
        DR. GULINO: Yes.
        ADA ZARALLO: Can you tell us, first of all, was there any way for Dr. McDonald or you
        or anyone to determine the order with which the gunshots were received by the victim?
        DR. GULINO: No.

Notes of Testimony (N.T.) 5/28/2009 at 149, 151.:.53.

        Because none of Dr. Gulino's testimony is cast in terms of Dr. Gulino's own conclusion that

he reached from conducting tests or analyzing the information, it might seem appropriate to call Dr.

Gulino a surrogate. However, after analysis of this issue, this Court determined that, even if there

was a violation of petitioner's rights under the Confrontation Clause, counsel's failure to raise this
                                                   15
              issue at trial did not actually prejudice petitioner.    To establish the prejudice prong, petitioner must

              show that there   is a "reasonable probability" that the outcome of the proceedings would have been

              different but for counsel's ineffectiveness. Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 200.8).

                      Had trial counsel objected to Dr. Gulino's testimony, the outcome at trial would not have

.I        changed. Testimony as to manner and cause of deathis not an element of the charge of murder; the
·I
 !
          element to be proven is that a particular person is dead. Commonwealth v. Meder, 611 A.2d 213,

          217 (Pa.Super. 1992). In Meder, the Superior Court found that the testimony of the defendant's

          mother, who testified that she found the victim lying cold and lifeless on the side of the defendant's
 .,I I

 ·1       bed, was sufficient to establish the element of death in a murder prosecution. Id. Here, there was
 ~
     I
          sufficient evidence before the jury that the individual in question was dead.24 Further, Dr. Gulino's

          testimony was not such that only the person who conducted the autopsy could testify about it: there

         was no evidence of any stippling or as to the distance from which the shots would have been fired.

         The autopsy report, from which Dr. Gulino's testimony emanated, merely stated that the victim had

         died, that the manner of death was homicide, and that the cause of death was multiple gunshot

         wounds. N.T. 5/28/09 at 153-55. For all intents and purposes, it was superfluous. Had counsel

         raised this claim at trial, the outcome would still have been the same, given Officer Graber's

         testimony. Therefore, this Court properly determined that this claim failed.

         6. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for
         failing to object to the Commonwealth's trial tactic of calling a witness for the sole purpose
         of introducing the witness's statement and convicting petitioner based on alleged prior
         inconsistent statement of its witnesses.

                    Petitioner's sixth claim is that trial counsel was ineffective for failing to object to the

         Commonwealth's tactic of calling witnesses in order to introduce thei.r prior inconsistent statements.



         24In fact, the statement given by Officer Graber, who arrived at the scene and accompanied the victim to the hospital,
         where he was ultimately pronounced dead, was introduced ioto evidence. In that statement, Officer Graber states that
         the victim was pronounced dead at HUP by Dr. Brashow at 2:58 A.M. N.T. 5/29/09 at 34; Exhibit C-18. Counsel did
         not raise a PCRA claim as to this witness's testimony.

                                                                      16
      Petitioner claims that the Commonwealth       called witnesses "for the sole purpose of introducing and

      convicting based on alleged prior inconsistent    statements of its witnesses."   Petitioner's only support

      for this   claim is that the Commonwealth stated in its closing argument that he had anticipated that

      witnesses would "go south." Because the prior inconsistent statements were properly admitted, this

      Court properly determined that this claim lacked merit, and it fails.

                 Under Corrunonwealth v. Bradi, a witness's prior inconsistent statement is admissible as

1     substantive evidence as well as for impeachment purposes. 610 A.2d 66, 70 (Pa. 1986). In
 i
 I    Commonwealth v. Lively, our Supreme Court found that a prior inconsistent statement is admissible
;I
      as substantive evidence where it was given under circumstances that demonstrate reliability and

     trustworthiness. 610 A.2d at 7, 9 (Pa. 1992). The reliability of a prior inconsistent statement is

     based on: "(1) whether the statement is given under reliable _circumstances; and (2) whether the

     declarant is available for cross-examination." Conunonwealth y. Carmody, 799 A.2d 143, 148

     (Pa.Super, 2002). With respect to reliability, a statement is reliable if it is given "under oath at a

     formal legal proceeding; or the statement had been reduced to a writing signed and adopted by the

     witness; or a statement that is a contemporaneous verbatim. recording of the witness's statements."

     Lively, 610 A.2d at 10.

              The Commonwealth's subjective expectation as to how a witness will testify is irrelevant.

     What matters for purposes of admissibility is the reliability and trustworthiness of the prior

     inconsistent statement. If reliability and trustworthiness is established, the prior statement is

     admissible as substantive evidence if the present testimony from the declarant is inconsistent with it.

     Nothing in petitioner's claim addresses the reliability or trustworthiness of the witnesses' prior

     inconsistent statements that were admitted at trial Therefore, as the prior inconsistent statements

     were properly admitted under Brady/Li~. this Court properly dismissed this claim for lack of

     merit, and it fails.


                                                         17
      7. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for
      failing to object on the grounds that petitioner's conviction was based solely on unswom
      statements in violation of the Confrontation Clause.

               Petitioner's seventh claim is that trial counsel was ineffective for failing to object to.

      petitioner's conviction, which was based on the unsworn testimony of "various witnesses." Here,

      again, petitioner is referring to the prior statements that witnesses gave to police and which were

      admitted at trial pursuant to ~/Lively and their progeny. Th~ fact that the prior statements

     were unsworn makes no difference under the Brady/Lively line ofcases. What matters is that the

     witnesses we.re under oath when they testified in court. See Commonwealth v. Chmiel, 738 A.2d

     406, 419 (Pa. 1999) (stating that the reasoning for the .rule set forth in Brady/Lively was that "since

     the witness in question would testify in court, where she would be under oath and subject to cross-

     examination, the acknowledged dangers of hearsay were largely nonexistent."). Therefore, as eyery

     witness who testified at trial was sworn in when he or she testified, this Court properly determined

     that this claim lacked merit, and it fails.

     8. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for
     failure to request an instruction on the element of "deliberation" in a case of first degree
     murder.

              Petitioner's eighth claim is that that trial counsel was ineffective for failing to request an

     instruction on the element of "deliberation" in a case of first degree murder. Because this Court did

     instruct on "deliberation," trial counsel was not ineffective for failing to request it, and this claim

     fails.

              This Court's jury instruction was:

              Murder of the first degree is a criminal homicide committed with a specific intent to kill. It
              is this specific intent to kill which distinguishes it from other degrees of murder.

              An intentional killing is a killing by any kind of willful, deliberate, and premeditated act.
              Therefore, in order to find the defendant guilty of first degree murder, you must find that
              the killing was a willful, deliberate and premeditated act.
              So what is meant by these words? If an intention to kill exists, then in the eyes of the law
              the killing is willful. If this intent is accompanied by such circumstances as show a mind
                                                                                                               3\
                                                          18


\.
I
         fully conscious of its own purpose it is deliberate.And if sufficient time has been afforded to
         enable the mind of the killer to fully frame the design to kill and to select the instrument or
         to frame the plan to carry this design into execution, it is premeditated.

 N.T. 6/1/2009 at 118-19 (emphasis added).

        Petitioner does not argue how this Court's specific intent instruction fails to define the

 element of "deliberation," nor does he provide the language which he believes should have been

included in that instruction. In order to be eligible for relief under the PCRA, petitioner must

"plead and prove" each claim; bare assertions of error, without more, are not enough. Li~            825

A.2d at 632. Furthermore, this Court's instruction closely tracked the language of the Pennsylvania

Standard Suggested Jury Instruction on first degree murder:

        1. The defendant has been charged with the offense of first-degree murder. First-degree
        murder is a murder in which the perpetrator has the specific intent to kill. To find the
        defendant guilty of this offense, you must find that the following three elements have been
        proven beyond a reasonable doubt:

                First, that [name of victim]is dead;
                Second, that the defendant killed [him] (her]; and
                Third,that the defendant did so with the specific intent to kill and with malice.

       2. A person has the specific intent to kill if he or she has a fully formed intent to kill and is
       conscious of his or her own intention. As my earlier definition of malice indicates, a killing
       by a person who has the specific intent to kill is a killing with malice [provided that it is also
       without [circumstances reducing the killing to voluntary manslaughter) [or] [any lawful
       justification or excuse]].

       [3. Stated differently, a killing is with specific intent to kill if it is [willful, deliberate, and
       premeditated] [by means of poison] (by lying in wait].]
       [4. The specific intent to kill [including the premeditation] needed for first-degree murder
       does not require planning or previous thought or any particular length of time. It can occur
       quickly. All that is necessary is that there be time enough so that the defendant can and does
       fully form an intent to kill and is conscious of that intention.)

Pa.S.S.J.I. (Crim) § 15.2502A (2005).

~   Commonwealth v. Prosdocimo, 578 A.2d 1273, 1277 (Pa. 1990) (holding that a jury charge that

closely tracked the language of the suggested standard jury instructions was accurate, adequate, and




                                                   19
  ..


  sufficiently clear to inform the jury of the law applicable to the case). Therefore, this Court properly

  determined that this claim lacked merit, and it fails.25

  9. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for
  failing to interview and call as a witness Anthony Woods.

             Petitioner's ninth claim is that this Court erred by dismissing petitioner's claim that trial

  counsel was ineffective for failing to interview and call as a witness Anthony Woods. Because

 petitioner failed to prove the witness was willing to testify at trial, and because this Court determined

 that Mr. Woods was not a credible witness and that his testimony would not have changed the

 outcome at trial, this claim fails.

             In order to establish counsel ineffectiveness for failure to call a witness, petitioner must

 demonstrate (1) that the witness existed, (2) was available to testify on petitioner's behalf, (3) that

 counsel knew or should have known that the witness existed, (4) that the witness was willing to

 testify on petitioner's behalf, and, (5) that the absence of such testimony prejudiced petitioner.

 Commonwealth v. Brown, 767 A.2d 576, 581-82 (Pa.Super. 2001).

           At the evidenti.ary heating, when questioned regarding whether he would have testified on

petitioner's behalf had trial counsel contacted him, Mr. Woods stated that, at the time of trial, he

"didn't want no parts of nothing. I didn't want to be involved with nothing and nothing." N.T.

5/14/15 at 31. Mr. Woods also testified that he abides by a certain code of the streets:

          Mr. Woods:        Listen, ma'am, what you don't understand, I grew up in the streets. I don't
                            want no parts. There are certain codes I just go by, bottom line. I don't
                            want no parts. I don't want to be involved.
          The Court:        Excuse me, what code?
          Mr. Woods:        I just don't - I don't want to be involved with nothing. I don't want my
                            name involved with nothing.

Id. at 33.




                                                                                                              0)
25 Petitioner also stated in his PCRA petition that the evidence presented by the Commonwealth was insufficient because
there is no evidence of'"deliberation,' which is an elemental fact that must be proven to establish first degree murder."
This claim, not mt in terms of ineffective assistance of co:;d, has been waived.
  As   Mr. Woods himself stated at the evidentiary hearing that he wanted nothing to do with this

  matter at the time of trial, petitioner has failed to prove that the witness was willing' and able to

  te.stify at the time of trial.

            Additionally, as explained   supra, this Court discredited the testimony of Mr. Woods, and

  found that his testimony would not have changed the outcome          at trial 26

            Therefore, this Court properly dismissed petitioner's claim that trial counsel was ineffective

  for failing to interview and call as a witness Anthony Woods, and this claim fails.

  10. Petitioner is entitled to relief based upon the cumulative effect of the errors.

            Petitioner's tenth claim is that this Court erred in dismissing his claim that he should be

 entitled to relief from his convictions based on the cumulative effect of the en-ors described in        his

 PCRA petition. Because this Court properly determined that all of petitioner's claims failed, this

 claim regarding the cumula rive effect of the errors fails as well. Therefore, this Court did not en in

 dismissing it.

           It is well settled that "no number of failed claims may collectively warrant relief if they fail to

 do so individually." Commonwealth         v. Tedford, 960 A.2d 1, 56 (Pa. 2008). It is only where

instances of deficient performance are found that prejudice can be properly premised upon

cumulative error. Commonwealth v. Johnson, 966 A.2d SZ3, 532 (Pa. 2009). Therefore, because

instances of deficient performance were not found in this case, there was no cumulative effect of the

errors, and this claim fails.




26 ~   issue 3 at pp.8-11, 111pra.

                                                      21
        For the foregoing reasons, this Court's dismissal of petitioner's PCRA claims should be

affirmed.


                                                             BY THE COURT:




                                            22
