J-S04020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                          Appellee

                     v.

MAURICE ANDREWS

                          Appellant                    No. 1492 EDA 2019


             Appeal from the PCRA Order entered April 24, 2019
            In the Court of Common Pleas of Montgomery County
              Criminal Division at No: CP-46-CR-0004380-2013


BEFORE:    BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.:                               FILED MAY 11, 2020

      Appellant, Maurice Andrews, appeals from the April 24, 2019 order

dismissing his petition for collateral relief under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546.         This matter is before us after we

remanded with directions to the PCRA court to give Appellant the opportunity

to amend his PCRA petition to address his claim of ineffective assistance of

counsel for failure to call a witness. See Commonwealth v. Andrews, No.

598 EDA 2015, unpublished memorandum (Pa. Super. filed April 15, 2016).

After holding a hearing, the PCRA court denied Appellant’s claim and dismissed

the PCRA petition because Appellant failed to prove that counsel was

ineffective. We agree. Accordingly, we affirm the order of the PCRA court.

      We summarized the factual background and procedural history of this

matter in our previous memorandum, which we incorporate herein by
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reference. Id. at 2-4.1 Briefly,2 Appellant and co-defendant ambushed victim

when victim exited the bar.         While victim struggled with co-defendant for

control of co-defendant’s revolver, Appellant shot victim five times, killing him.

Co-defendant also was hit by Appellant’s gunfire and was wounded in the leg

and hand. Appellant and co-defendant fled the scene separately.

        After being apprehended several hours after the shooting, co-defendant

gave the investigators several statements implicating Appellant as the

shooter. Appellant was apprehended a few weeks later at his aunt’s home.

        After a trial, Appellant was convicted, inter alia, of third degree murder

and conspiracy to commit third degree murder and was sentenced to an

aggregate term of 35 to 70 years’ incarceration.

        We affirmed the judgment of sentence on April 15, 2016.               See

Andrews, No. 598 EDA 2015, unpublished memorandum (Pa. Super. filed

April 15, 2016).

        Appellant filed his first PCRA petition on February 15, 2017, wherein he

raised several claims of ineffective assistance of trial counsel, including a claim

of ineffective assistance of counsel for failing to call Mr. White 3 as a witness


____________________________________________


1See Commonwealth v. Andrews, No. 2325 EDA 2017, unpublished
memorandum (Pa. Super. filed September 6, 2018).

2   Unless otherwise stated, the summary comes from the PCRA Court opinion.

3At the time of trial, Mark White, Appellant’s uncle, was being held on a
material witness warrant. Neither the Commonwealth nor Appellant called
Mark White as a witness at trial.

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at trial. The PCRA court dismissed Appellant’s PCRA petition without holding

a hearing.

      We vacated the portion of the order denying relief on Appellant’s claim

of ineffective assistance of counsel for failing to call Mark White as a witness

because the PCRA court did not first give Appellant the opportunity to amend

his petition to correct the procedural deficiencies related to his claim. See

Andrews, No. 2325 EDA 2017, supra.

      Upon remand, Appellant filed an amended PCRA petition, renewing his

ineffectiveness claim regarding Mark White. After holding a hearing, the PCRA

court denied relief and dismissed the PCRA petition. This appeal followed.

      On appeal, Appellant argues that the trial court erred in not finding trial

counsel ineffective for failing to call Mr. White as a witness at trial.       We

disagree.

      In addressing ineffective assistance of counsel claims, we are guided by

the following authorities:

      [A] PCRA petitioner will be granted relief [for ineffective assistance
      of counsel] 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. § 9543(a)(2)(ii).       “Counsel is presumed
      effective, and to rebut that presumption, the PCRA petitioner must
      demonstrate that counsel’s performance was deficient and that
      such deficiency prejudiced him.” Commonwealth v. Colavita,
      993 A.2d 874, 886 (Pa. 2010) (citing Strickland v. Washington,
      466 U.S. 668, 687 (1984)). In Pennsylvania, we have refined the
      Strickland performance and prejudice test into a three-part
      inquiry. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.

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     2001). Thus, to prove counsel ineffective, the petitioner must
     show that: (1) his underlying claim is of arguable merit;
     (2) counsel had no reasonable basis for his action or inaction; and
     (3) the petitioner suffered actual prejudice as a result.
     Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014) (citations

modified). A petitioner’s failure to satisfy any one element of the test will

result in the rejection of his claim. Commonwealth v. Jones, 811 A.2d 994,

1002 (Pa. 2002).

     Regarding the specific issue here, it is worth noting that the decision to

call a particular witness implicates matters of trial strategy.              See

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007).                   Thus,

Appellant must “prove that the strategy employed by trial counsel was so

unreasonable that no competent lawyer would have chosen that course of

conduct.”   Commonwealth v. Chmiel, 889 A.2d 501, 541 (Pa. 2005)

(internal quotation marks and citation omitted).

     At the evidentiary hearing, Mr. White testified

     that prior to Appellant’s trial, he gave two statements to law
     enforcement, and he also testified before the grand jury in
     between his two statements.

     Mr. White testified that his first statement, wherein he indicated
     that he did not see Appellant and [co-defendant] on the night of
     the murder, was a lie. He testified that his grand jury testimony
     was true and further added that he was not [at location of murder]
     when the gunshots were fired, though he did hear the shots
     because he was just a few block away. Mr. White also testified
     that he was prepared to testify at Appellant’s trial consistent with
     what he told the grand jury. He stated that he never told [trial
     counsel] that he wanted to testify, and does not recall if he told
     Appellant.


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     [Trial counsel testified that he spoke to Mr. White on multiple
     occasions, but he never told counsel that he wanted to testify or
     that he was interested in testifying.] [Trial counsel] testified that
     [Mr. White’s testimony] was harmful to Appellant because it
     placed him at the scene of the murder shortly before the murder
     and established that Appellant and [co-defendant] specifically
     [intended] to “holler’ at victim. In [trial counsel]’s professional
     opinion, the testimony would have hindered Appellant’s case
     because it corroborated and verified [co-defendant] version of
     events, which was the Commonwealth’s theory of the case.

     [Trial counsel] further explained that Mr. White’s testimony was
     damaging because it placed a gun in the hands of [co-defendant]
     just before the murder; it put a gun in Appellant’s hands on
     another occasion; and it was inconsistent with his prior statement,
     which would have shown the jury that he was a liar. [Trial
     counsel] also testified that he had several discussions with both
     Appellant and his mother about the potential of calling Mark White
     as a witness.

PCRA Court Opinion, 8/19/19, at 3-4.

     In denying relief, the PCRA court noted that

     the . . . record is replete with strategic bases for trial counsel’s
     decision not to call Mark White as a witness. At the evidentiary
     hearing, [trial counsel] testified that his strategy regarding Mark
     White was dependent on whether [co-defendant]’s statements
     came in at trial. [Trial counsel] described that Mark White’s
     testimony would have been damning to the defense because it
     would have corroborated his grand jury testimony that placed
     Appellant at the scene of the murder at the time of the murder.
     Moreover, Mr. White’s testimony would have largely substantiated
     crucial aspects of [co-defendant]’s statements while counsel’s
     strategy was to attack [co-defendant]’s statement and show that
     his version of events was untruthful.

     When [co-defendant] did testify at trial, the strategy pivoted. The
     strategy went from reasonable doubt to attacking [co-
     defendant’s] statements, which included attempting to
     demonstrate that [co-defendant] was untruthful and pointing out
     the lack of corroboration of [co-defendant] version of events.

                                    ....

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      [Trial   counsel]   acknowledged     that   there   were    slight
      inconsistencies between Mark White’s grand jury [co-defendant]’s
      statements. As a matter of trial strategy, however, he believed
      that calling Mark White to the stand to contradict “minor details”
      from [co-defendant]’s statements would not outweigh the
      injurious nature of his testimony corroborating crucial aspects of
      [co-defendant] statement.

                                     ....

      [Trial counsel] also explained that although Mark White’s grand
      jury testimony did not place a weapon in Appellant’s hand on the
      night of the murder, his testimony placed two different guns in
      Appellant’s hands on occasions prior to the murder.          [Trial
      counsel] indicated that he could not be certain whether this
      evidence would be able to come in at trial, nonetheless, “it was a
      demining piece of evidence of him putting his nephew in
      possession of a firearm.” Thus, this was another factor in [trial
      counsel]’s decision not to call Mark White as witness. [Trial
      counsel] testified that the fact that Mark White gave several
      inconsistent statements and admitted that he lied, also played into
      his decision not to call him as a witness at trial. . . .

      The final decision not to call Mark White as witness, however, was
      not made until after the Commonwealth rested its case, at which
      time it was apparent that Mark White was not going to be called
      as a Commonwealth witness. Until that time, [trial counsel]
      assumed that Mr. White would be called as a Commonwealth
      witness because he was being held in prison on a material witness
      warrant for the duration of Appellant’s trial. As a matter of trial
      strategy, [trial counsel] chose to highlight the absence of Mark
      White, a potential eyewitness to the crime, in his closing argument
      to the jury.

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

      The PCRA court found, and we agree, that trial counsel acted as a skilled

and effective counsel, and that his decision not call Mr. White as a witness was

certainly reasonable under the circumstances described above. Accordingly,




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we conclude Appellant failed to prove that trial counsel was ineffective for not

calling Mark White as a witness.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/20




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