J-S38034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                       Appellee          :
                                         :
           v.                            :
                                         :
MICHAEL DAVID,                           :
                                         :
                       Appellant         :   No. 3029 EDA 2013


          Appeal from the PCRA Order Entered October 25, 2013,
           In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0402281-2006.


BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED OCTOBER 21, 2014

     Appellant, Michael David, appeals from the denial of his petition filed

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

9546. We affirm.

     In Appellant’s direct appeal, we recited the relevant facts as

summarized by the trial court, as follows:

           On December 3, 2005, at around 11:10 a.m.,
     Officer Thomas Quinn and Sergeant Michael Colello, of the
     Philadelphia Police Department, while in their respective patrol
     cars on the 3100 block of Jasper Street, heard a loud noise
     which sounded like a gunshot. Notes of Testimony (N.T.) 2/5/08
     at 108-131; N.T. 2/6/2008 at 15-17. Both officers then drove
     northbound on Jasper towards the 1800 block of Clementine
     Street, when a call regarding a shooting came over police radio.
     N.T. 2/5/08 at 114. As he reached the intersection, Officer
     Quinn was flagged down by a woman who told him that there
     was a man laying on the sidewalk on South Clementine Street.
     Id. at 119-20. Officer Quinn found Craig Clayton (victim) on the
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     ground; he was non-responsive and was having a hard time
     breathing. Medics pronounced him dead at the scene. Id. at
     123.    Sergeant Colello immediately attempted to gather
     information and question witnesses as to what they may have
     seen that morning. N.T. 2/6/08 at 21. One witness relayed that
     a Black male wearing a green jacket, green pants, and carrying
     a black trash bag had run towards Kensington Avenue. Id. at
     22, 24-25.

           On the previous night, December 2, 2005, Hector Caceres,
     a resident of Clementine Street, had arrived home at
     approximately 9:30 p.m. N.T. 2/5/08 at 265. As he parked his
     car, Mr. Caceres noticed two Black men whom he did not
     recognize. Id. at 266. One of the men stood next to a tree at
     Stouton and Clementine Streets. Id. He had on a dark, heavy
     coat and a black hat. Id. The other man stood across the
     street.  Id.    An hour later, at approximately 10:30 p.m.,
     Monica Yancey, another resident of Clementine Street, left her
     home. N.T. 2/7/08 at 204. She was on the way to the store
     when she noticed two men, whom she did not recognize,
     standing on the corner of Stouton and Clementine. Id. at 204-
     05. Ms. Yancey felt uneasy and decided to go back inside of her
     house rather than go to the store. Id. at 205.

           At 10:40 the next morning, December 3, 2005,
     Mr. Caceres was on his way to the corner store when he noticed
     that the same men he had seen the night before were standing
     in the same locations. N.T. 2/5/08 at 267-68, 273, 277-79.
     That same morning, Brandy Saunders was walking towards her
     mother’s house on Clementine Street when she noticed two
     Black men at the intersection of Ruth and Clementine. N.T.
     2/6/08 at 130-31, 133. As she walked past them, the shorter of
     the two called out to her while the taller man spoke on a cell
     phone. Id. at 134, 136. She overheard the taller man on the
     phone say “it’s about to happen in five minutes.” Id. at 134-36.
     Ms. Saunders then entered her mother’s home and
     approximately five minutes later she heard a loud noise that
     sounded like a gunshot. Id. at 138-39.

          Around the same time, Ms. Yancey heard a popping sound
     which she believed to be a car window breaking. N.T. 2/7/08 at
     216-17. She quickly went outside to investigate the noise, and


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J-S38034-14



     observed the defendant and co-defendant [Jones] across the
     street. Id. at 216-19. She yelled to them that she was going to
     call the police and Jones ran towards Kensington Avenue while
     the defendant ran towards Jasper Street.        Id. at 225-26.
     Ms. Yancey noticed that, as he ran, Jones carried a black
     garbage bag underneath his arm. Id. at 229. A neighbor then
     informed Ms. Yancey that there was a body on the ground. Id.
     at 236.

           B.O., a resident of Jasper Street, was retrieving clothing
     from her aunt’s minivan on Clementine Street when she heard
     people arguing. N.T. 2/5/08 at 216-22. She turned and saw
     three men-two were arguing and the third was talking on his cell
     phone. Id. at 222-24. She then realized that the taller of the
     two quarreling men was pointing a gun toward the other man’s
     face as he backed away with his hands up. Id. at 224-25. B.O.
     saw the taller man shoot him, and she began running back
     towards her aunt’s house. Id. at 225-29. As she ran, she saw
     the taller man running in her direction. Id. at 227-29. She
     entered her aunt’s home, but did not observe in what direction
     the man then ran. Id. at 232.

           At the scene, officers recovered from the victim’s person
     the following items: jewelry, money, a wallet, business cards,
     and a notebook. The notebook was opened to a page that
     contained: the address of 1833 Clementine; two telephone
     numbers, (215) 888-2400 and (267) 262-5094; the name
     “Mike”; and a notation which said “Size 12 Tims.” N.T. 2/6/08 at
     74-75.

            In the early evening of December 3, 2005, the police
     located the victim’s vehicle on the corner of Clementine and
     Jasper Streets. Id. at 263-266. Detective John Cahill found the
     victim’s cell phone in the vehicle, along with a large quantity of
     sporting goods. N.T. 2/7/08 at 117-18. An investigation into
     the victim’s cell phone records revealed that the last incoming
     call on the victim’s cell phone was at 10:49 a.m. on December 3,
     2005, from (215) 888-2400; the last outgoing call was at 11:04
     a.m. to that same number.          N.T. 12/12/08 at 214, 216.
     Detective Francis Kerrigan subpoenaed subscriber information
     and call records for (215) 888-2400 from Sprint Nextel for the
     period from December 2 to December 5, 2005. N.T. 2/6/08 at


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J-S38034-14



      223-24. This cell phone was found to be registered to Dolores
      Johnson, co-defendant Jones’ grandmother. Id. at 226; N.T.
      2/7/08 at 112. The phone records revealed that the last call
      between Dolores Johnson’s cell phone and the victim’s cell phone
      occurred on December 3, 2005, at 11:04 a.m. N.T. 2/6/08 at
      237.

            On December 20, 2005, Ms. Yancey identified the
      defendant in a photo array.       N.T. 2/7/08 at 243.      On
      December 22, 2005, at approximately 6:15 a.m., an arrest and
      search warrant were executed and the defendant was arrested at
      his residence at 4649 Tackawanna Street, in Philadelphia. N.T.
      2/7/08 at 133-34; N.T. 12/12/08 at 180.

      Trial Court Opinion, 12/3/08, at 2-5 (footnotes omitted).

Commonwealth v. David, 2309 EDA 2009, 988 A.2d 717 (Pa. Super. filed

November 25, 2009) (unpublished memorandum at 1–4).

      Appellant was charged with murder and related offenses. He originally

went to trial in June 2007, but when the jury was unable to reach a verdict,

the court granted a mistrial. Appellant’s retrial in February 2008 before a

jury occurred in conjunction with co-defendant Christopher Jones. Appellant

was found guilty of second degree murder, robbery, possessing instruments

of crime (“PIC”), and conspiracy.       The court sentenced Appellant on

February 15, 2008, to life imprisonment for murder with concurrent terms of

twelve to sixty months and ninety to 180 months for PIC and conspiracy,

respectively.   Holding that robbery merged with murder for purposes of

sentencing, the court did not impose a separate sentence for robbery.




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      Appellant filed post-trial motions, which the trial court denied following

a hearing. Appellant then filed a timely appeal to this Court, raising seven

issues.   We affirmed the judgment of sentence on November 25, 2009.

David, 2309 EDA 2008, 988 A.2d 717.                  Our Supreme Court denied

Appellant’s    petition    for   allowance     of   appeal   on   May    4,   2010.

Commonwealth v. David, 718 EAL 2009, 995 A.2d 351 (Pa. filed May 4,

2010).

      On May 27, 2010, Appellant filed a pro se PCRA petition.           The PCRA

court appointed counsel, who filed an amended PCRA petition on November

18, 2011.     Upon Appellant’s request to proceed pro se on September 10,

2012, the PCRA court held a hearing on October 5, 2012, pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988); the PCRA court

represented that Appellant “equivocated” at that hearing.               PCRA Court

Opinion, 12/12/13, at 2. On November 28, 2012, Appellant again requested

to proceed pro se.        The PCRA court held a second Grazier hearing1 on

January 31, 2013, following which the PCRA court concluded that Appellant’s

waiver of counsel was knowing, intelligent, and voluntary.2



1
   While there is no issue raised regarding Appellant’s self-representation in
this appeal, we note that neither transcript from the Grazier hearings is in
the record certified to us on appeal.
2
  While the Grazier hearing was proceeding, Appellant filed a pro se motion
to supplement the amended PCRA petition that was dated December 24,
2012, and filed December 31, 2012.

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     On February 15, 2013, Appellant filed a motion for additional

discovery. The PCRA court held a hearing on June 4, 2013, and thereafter

granted Appellant’s request for additional discovery regarding two cellular

telephones police had seized from his home. PCRA Court Opinion, 12/12/13,

at 3.3   On October 3, 2013, the PCRA court issued notice pursuant to

Pa.R.Crim.P. 907, indicating its intent to deny Appellant’s PCRA petition

without a hearing.   Appellant submitted a thirteen-page response dated

October 8, 2013, which was filed on October 16, 2013.       On October 25,

2013, the PCRA court dismissed the PCRA petition, and Appellant filed the

instant timely appeal to this Court.    Both the PCRA court and Appellant

complied with Pa.R.A.P. 1925.

     In his appellate brief, Appellant raises four of the five issues of

ineffective assistance of counsel that he raised in his Pa.R.A.P. 1925(b)

statement. Those four issues are as follows:

     1. Was trial counsel ineffective for failure to investigate all
     phone records relevant in the trial, and did the PCRA Court err in
     dismissing this claim without a hearing?

     2. Was trial counsel ineffective for failure to impeach Brianna
     O’Brien with her prior inconsistent statement, and calling
     [Detective] Santamala and Kelly O’Brien? Also, did the PCRA
     court err in dismissing this claim without a hearing?

     3. Was appellant[’s] counsel ineffective for failure to properly
     challenge second degree murder, in the petitioner’s insufficient


3
   Appellant has not included notes of testimony from the June 4, 2013
hearing referenced by the PCRA court in the record certified to us on appeal.

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      evidence claim? Also did the PCRA court err in dismissing this
      claim without a hearing?

      4. Was [A]ppellant[’s] counsel ineffective for failure to raise a
      violation of the Due Process Clause of the U.S. Constitution as
      well as the PA. state Constitution pertaining to the impermissible
      hearsay claim? Also, did the PCRA Court err in dismi[s]sing this
      claim without a hearing?

Appellant’s Brief at 4.

      Our Supreme Court recently reiterated the standard and scope of

review when the PCRA court dismisses cognizable claims without a hearing,

as follows:

      To obtain reversal of a PCRA court’s summary dismissal of a
      petition, an appellant must show that he raised a genuine issue
      of fact which, if resolved in his favor, would have entitled him to
      relief. The controlling factor in this regard is the status of the
      substantive assertions in the petition.              Thus, as to
      ineffectiveness claims in particular, if the record reflects that the
      underlying issue is of no arguable merit or no prejudice resulted,
      no evidentiary hearing is required. For each such claim, we
      review the PCRA court’s action for an abuse of discretion.

Commonwealth v. Baumhammers, 92 A.3d 708, 726–727 (Pa. 2014)

(internal citations omitted).

      In post-conviction collateral proceedings, the petitioner bears the

burden to plead and prove eligibility for relief. See 42 Pa.C.S. § 9543(a).

When considering an allegation of ineffective assistance of counsel, counsel

is presumed to have provided effective representation unless the PCRA

petitioner pleads and proves that: (1) the underlying claim is of arguable

merit; (2) counsel had no reasonable basis for his or her conduct; and


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(3) Appellant   was    prejudiced    by     counsel’s   action   or   omission.

Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). “In order

to meet the prejudice prong of the ineffectiveness standard, a petitioner

must show that there is a reasonable probability that but for the act or

omission in question the outcome of the proceeding would have been

different.” Commonwealth v. Wallace, 724 A.2d 916, 921 (Pa. 1999). A

claim of ineffective assistance of counsel will fail if the petitioner does not

meet any of the three prongs.       Commonwealth v. Williams, 863 A.2d

505, 513 (Pa. 2004) (quoting Commonwealth v. Rush, 838 A.2d 651, 656

(Pa. 2003)).

      Following our careful review of the record, the arguments of the

parties, and our consideration of the applicable law, we conclude, except as

relates to the first issue, that the well-reasoned, detailed opinion of the

PCRA court thoroughly addresses the issues raised, and we adopt that

opinion as our own.4 We address the first issue Appellant raises on appeal

separately because the PCRA court responded to a different claim due to

Appellant’s imprecise and vague wording in his statement of the issue in his

Pa.R.A.P. 1925(b) statement.

      The rambling, often inexplicable argument by Appellant challenges our

ability, much like the PCRA Court’s, to address Appellant’s contention.      It


4
   The parties are directed to attach a copy of that opinion in the event of
further proceedings in this matter.

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appears that in his first issue, Appellant is asserting that the PCRA court

erred in denying his claim that trial counsel was ineffective for failing to

investigate   telephone   records    in   this   case.    We   agree   with   the

Commonwealth that this issue is waived because Appellant failed to identify

it with specificity in his Pa.R.A.P. 1925(b) statement.

      In his pro se supplement to the amended PCRA petition that he filed

on November 28, 2012, Appellant advanced trial counsel’s failure to

investigate telephone records, including the records for his own cellular

telephone, and the cellular telephones used by three others: the victim, co-

defendant Jones, and an unidentified person who called the telephone used

by   co-defendant    Jones    from     telephone     number    (267)   825-3918

(“unidentified user”).    In his Rule 1925(b) statement, Appellant had

identified the following claim:     “Was trial counsel ineffective for failure to

investigate all phone records relevant in the trial, and did the PCRA Court err

in dismissing this claim without a hearing?”         1925(b) Statement of the

Petitioner, Michael David, 11/8/13, at 1.        Appellant’s phraseology of “all

phone records” resulted in the PCRA court’s consideration of trial counsel’s

alleged failure to investigate the records for the telephones recovered from

Appellant’s home.     On appeal, Appellant instead focuses on the three

telephones used by the victim, co-defendant Jones, and the unidentified




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user. Thus, Appellant’s imprecision and lack of clarity in his Rule 1925(b)

statement mislead the PCRA court to address an entirely different claim.

      Rule 1925 requires that “[t]he Statement shall concisely identify each

ruling or error that the appellant intends to challenge with sufficient detail

to identify all pertinent issues for the judge.” Pa.R.A.P. 1925 (b)(4)(ii)

(emphasis added). The Rule further provides that “[i]ssues . . . not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”       Id.,

(b)(4)(vii); See also Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.

Super. 2011) (citations omitted) (Rule 1925(b) statement must be “specific

enough for the trial court to identify and address the issue an appellant

wishes to raise on appeal,” and “if a concise statement is too vague, the

court may find waiver.”); see also Greater Erie Indus. Development

Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super. 2014)

(“Our Supreme Court intended the holding in [Commonwealth v.] Lord[,

719 A.2d 306 (Pa. 1998)] to operate as a bright-line rule, such that ‘failure

to comply with the minimal requirements of Pa.R.A.P.1925(b) will result in

automatic waiver of the issues raised.’”).    Accordingly, we conclude that

Appellant’s first issue is waived. Commonwealth v. Garang, 9 A.3d 237,

244 (Pa. Super. 2010) (holding issues not included in the Pa.R.A.P. 1925(b)

statement or raised in accordance with the provisions of Rule 1925(b)(4) are

waived).




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      Even if not waived, the issue lacks merit. In initially raising this claim

in the PCRA court, Appellant contended, without citing support, that trial

counsel provided ineffective assistance because he failed to reveal that co-

defendant Jones’s telephone “was in contact with the 825# thirty-nine times,

back and fourth [sic],” and “with the victim seventeen times, back and

fourth [sic].”    Motion to Proceed Pro Se, 11/28/12, at 1.           Appellant

contended that trial counsel “could have and should have use[d] this to

undermine the prosecution’s theory of a murder in the furtherance of a

robbery.”   Id.   In his brief, Appellant suggests that due to the myriad

number of calls, “this murder was not in the furtherance of a robbery”

because “no normal businessman would need to make so many calls back

and forth for such a small purchase after business hours, if this was just

your everyday transaction.” Appellant’s Brief at 7.

      Appellant has failed to show how trial counsel’s additional investigation

into telephone records would have provided a new defense theory in this

case. In his April 2, 2013, response to the Commonwealth’s second motion

to dismiss, Appellant cited to the notes of testimony from the July 24, 2008

post-sentence motion hearing to support his claim that trial counsel failed to

properly investigate telephone records in this case. Petitioner’s Response to

Motion to Dismiss, 4/2/13, at unnumbered 1. In the first cited passage, the

trial court asked counsel whether he had subpoenaed telephone records for




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telephone number (267) 825-3918, the unidentified user. N.T., 7/24/08, at

51. Counsel confirmed that he had not sought records for that number from

a telephone company but instead, had attempted to subpoena them from

the father or stepfather of co-defendant Jones.     Id. at 51–52.   Counsel

stated that he intended to present the testimony of co-defendant Jones’s

father “who could confirm the phone records.” Id. at 52.

     The telephone records in question had been discussed at trial through

various witnesses. Philadelphia Detective Gregory Santamala testified that

he was dispatched to the 1800 block of Clementine Street, where the

murder occurred. N.T., 2/6/08, at 68. Detective Santamala inventoried the

items removed from the victim’s pockets.        One item was a notebook

containing the following information:    “1833 Clementine, Mike, (215) 888-

2400.”5 Id. at 75.

     The direct testimony of Detective Francis Kerrigan, who was a

Philadelphia homicide detective with a cross-designation as a task force

officer assigned to the United States Drug Enforcement Administration, also

referenced telephone records. N.T., 2/6/08, at 221. The detective testified

that “[o]ne of the things I did on this task force is subpoena phone records

in reference to the murder cases that we have here in Philadelphia.” Id. at



5
   We note that throughout its brief, the Commonwealth frequently refers to
this telephone number as (215) 888-4200, but the correct number in the
notes of testimony is (215) 888-2400. N.T., 2/6/08, at 75.

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222.    Detective Kerrigan testified that he obtained records for cellular

telephone number (215) 888-2400. That number was registered to Delores

Johnson,    co-defendant   Jones’s    grandmother,     and      service   to   it   was

terminated on the day of the murder. Id. at 226–227, 253; N.T., 2/7/08, at

101–103.     Detective Kerrigan testified that (215) 888-2400 had called

unidentified user four times between 11:09 a.m. and 11:26 a.m., which was

moments after the shooting. N.T., 2/6/08, at 238. He also testified that the

unidentified user had contact with the victim’s telephone multiple times on

the night before and morning of the shooting. Id. at 230–237.

       Appellant contends that trial counsel was ineffective for failing to

investigate and present telephone records at trial, specifically referring to

the contacts between the victim’s cellular telephone and (215) 888-2400,

the    telephone   belonging    to   Delores    Johnson,   as    described     above.

Appellant’s Response to Notice of Intent to Dismiss PCRA Petition Without a

Hearing, 10/16/13, at 1.       As noted, however, all of those telephone calls

were described at trial. N.T., 2/6/08, at 230–237. To the extent Appellant

suggests trial counsel should have investigated the communications between

(215) 888-2400 and (267) 825-3918, unidentified user, Appellant has wholly

failed to advance any suggestion as to the user’s identity or any theory as to

how that number would have provided a new defense theory.




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        Our review of the record reveals that the PCRA court gave Appellant

substantial leeway to develop this claim by holding a hearing on Appellant’s

request for additional discovery concerning telephone records on June 4,

2013.     As we noted supra, Appellant has failed to include the notes of

testimony from that hearing in the record certified to us, but the

Commonwealth asserts that it was compelled to provide Appellant “with a

supplemental report addressing the phones recovered from his home.”

Commonwealth Brief at 27. We conclude that Appellant has failed to prove

that the underlying claim is of arguable merit as he never substantiated that

additional investigation into the telephone records would have provided any

basis for relief. Thus, the PCRA court properly denied this claim.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2014




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