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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GREGORY PRICE

                            Appellant                   No. 298 EDA 2016


                  Appeal from the PCRA Order January 8, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0806701-2005


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

MEMORANDUM BY STEVENS, P.J.E.:                    FILED NOVEMBER 09, 2016

        Gregory Price (“Appellant”) appeals from the order of January 8, 2016,

dismissing his first petition for post-conviction collateral relief.1 After careful

review, we affirm.

        In summarizing the history of Appellant’s third-degree murder,

attempted murder, aggravated assault, and conspiracy case involving two

victims, the PCRA court has reproduced the trial court’s Pa.R.A.P. 1925(a)

opinion, which, we noted on direct appeal, “set forth in great detail a

comprehensive recitation of the underlying facts and procedural history of

the matter[.]” Commonwealth v. Price, No. 3208 EDA 2008, unpublished

memorandum at 1. (Pa.Super. filed October 21, 2010).            As Appellant has
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    Post-Conviction Relief Act, (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
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appended the PCRA court’s opinion to his appellate brief, we need not

reproduce the lengthy recitation of fact and procedural history appearing on

therein. See PCRA Court Opinion, filed 3/29/16 at 1-8.

      As for the procedural history of Appellant’s PCRA petition, the court

notes the following:

      On April 20, 2011, Appellant filed a timely pro se petition for
      post-conviction relief.   Counsel was appointed and filed an
      amended petition claiming that Appellant is entitled to PCRA
      relief because of the ineffective assistance of counsel for failing
      to call witnesses that were known to be available, the testimony
      of whom would have changed the outcome of the trial and for
      failing to request a polluted sourced instruction with regard to
      witness Abdul Torrence.[] The Commonwealth responded with a
      motion to dismiss indicating that Appellant had failed to
      demonstrate that he is entitled to relief. Following a thorough
      independent review of the submissions of both counsel, the
      record, and the controlling law, the [PCRA] court determined
      that Appellant was not entitled to PCRA relief. On January 8,
      2016, following proper notice, Appellant’s PCRA petition was
      formally dismissed. This appeal followed.


Id. at 8.

      Appellant presents the following question for our review:

      I.    Is the Defendant/Appellant entitled to a remand to the
            PCRA Court so that that Court can entertain a full
            evidentiary hearing on the issues presented by the
            Defendant to the PCRA Court?

Appellant’s brief at 3.

      Initially, we recite our standard of review:




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      We have explained:

      [This Court's] scope of review is limited by the parameters of the
      [PCRA]. Our standard of review permits us to consider only
      whether the PCRA court's determination is supported by the
      evidence of record and whether it is free from legal error.

Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa. Super. 2007).

      This Court has acknowledged that the right to an evidentiary hearing is

not absolute in PCRA proceedings. See, e.g., Commonwealth v. White,

647 A.2d 253, 256 (Pa. Super. 1996).         A hearing may be denied when

petitioner's claim is “patently frivolous and without a trace of support either

in the record or from other evidence.” Id. When the PCRA court denies a

petition without an evidentiary hearing, we “examine each issue raised in

the PCRA petition in light of the record certified before it in order to

determine if the PCRA court erred in its determination that there were no

genuine issues of material fact in controversy and in denying relief without

conducting an evidentiary hearing.”      Commonwealth v. Khalifah, 852

A.2d 1238, 1240 (Pa. Super. 2004) (citing Commonwealth v. Hardcastle,

701 A.2d 541, 542-43 (Pa. 1997)).

      On an ineffective assistance of counsel claim, the standard a petitioner

must meet for PCRA relief is well-settled:

      A petitioner is eligible for PCRA relief only when he proves by a
      preponderance of the evidence that his conviction or sentence
      resulted from one or more of the circumstances delineated in [42
      Pa.C.S.A. § 9542]. One of the grounds enumerated in [42
      Pa.C.S.A. § 9542] involves claims alleging ineffective assistance
      of counsel. Thus, the PCRA provides relief to those individuals
      whose convictions or sentences resulted from ineffective


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      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. The Supreme Court of Pennsylvania has interpreted
      that to mean that in order to obtain relief on a claim alleging
      ineffective assistance of counsel, a petitioner must prove that: 1)
      the claim underlying the ineffectiveness claim has arguable
      merit; 2) counsel's actions lacked any reasonable basis; and 3)
      counsel's actions resulted in prejudice to petitioner.

Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). A reviewing court

presumes counsel to be effective. Commonwealth v. Martin, 5 A.3d 177,

183 (Pa. 2010).     To overcome this presumption, Appellant's burden is to

plead and prove each element of the test for ineffectiveness by a

preponderance of the evidence. Id. Where it is clear that a petitioner has

failed to satisfy any one prong of the test, this Court may dispose of the

claim on that basis alone. Commonwealth v. Steele, 961 A.2d 786, 795

(Pa. 2008).

      In his sole claim for relief, Appellant contends that his conviction

resulted from the ineffectiveness of trial counsel in failing to ask for a

polluted source instruction regarding witness Abdul Torrence (referred to as

“Abdul” in the recitation of factual history).      Appellant's brief at 12.

Specifically, he maintains Abdul “was part and parcel of the shoot out that

resulted in the shooting death of the victim, Kenneth Baptiste, and the

wounding of Ebony Long and a bystander. It matters not whose side Abdul

was on; it matters only that Abdul was committing a crime on the public

street.”   Appellant’s brief at 13.   By firing his weapon, Abdul encouraged




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others to return fire, and this criminal conduct warranted the corrupt and

polluted source instruction. We disagree.

      “[I]t ‘is well established that, in any case in which an accomplice
      implicates the defendant, the [judge] should instruct the jury
      that the accomplice is a corrupt and polluted source whose
      testimony should be considered with caution.’” Commonwealth
      v. Hanible, 612 Pa. 183, 30 A.3d 426, 462 (2011) (citation
      omitted).      A corrupt-source instruction is warranted where
      sufficient evidence is presented as to whether the witness is an
      accomplice. Commonwealth v. Williams, 557 Pa. 207, 732
      A.2d 1167, 1181 (1999). An individual is an accomplice if, with
      intent to promote or facilitate the commission of the offense, he
      solicits, aids, agrees, or attempts to aid another person in
      planning or committing the offense. 18 Pa.C.S. § 306(c)(1).

Commonwealth v. Treiber, 121 A.3d 435, 459 (Pa. 2015).

      The record demonstrates that Abdul did not act as Appellant’s

accomplice in the commission of the crimes for which Appellant was on trial.

A relative of Ebony Long’s, Abdul was at the scene of the crime, but he was

hiding behind a bush as Appellant and his fellow aggressors approached

Ebony Long’s house, and he soon found himself at the receiving end of

gunfire directed toward Baptiste and Ebony.       Abdul did not retrieve his

firearm until Appellant and his cohorts opened fire. There was, therefore, no

evidence from which the finder of fact could have reasonably inferred that

Abdul was Appellant’s accomplice, as he did not take part in Appellant’s

crimes. It follows, therefore, that Appellant was not entitled to a corrupt-

source instruction, and his ineffectiveness of counsel claim fails for lack of

arguable merit.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2016




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