J-S19023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALFRED WHITEFIELD                          :
                                               :
                       Appellant               :   No. 3409 EDA 2018

            Appeal from the PCRA Order Entered November 5, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0014999-2013,
                           CP-51-CR-0015000-2013


BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.:                              FILED JUNE 22, 2020

        Alfred Whitefield (Appellant) appeals pro se from the order of the

Philadelphia Court of Common Pleas dismissing his first petition filed pursuant

to the Post Conviction Relief Act (PCRA).1 Appellant seeks collateral relief from

his bench conviction of, inter alia, two counts of first degree murder.2

Appellant contends the PCRA court erred in permitting PCRA counsel to

withdraw and failing to conduct an evidentiary hearing, and asserts several

challenges arising from his right to effective assistance of trial counsel. We

affirm.

        The trial court summarized the underlying facts as follows:


____________________________________________


1   42 Pa.C.S. §§ 9541-9546.

2   18 Pa.C.S. § 2502(a).
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            In the early evening hours of April 23, 2013, Carmen Medina
      was on her way to be admitted to an inpatient clinic at Gaudenzia
      House, accompanied by her ten year old son, [J.H.], Thomas
      Gorman and Yvette Davila. Ms. Medina stopped at the intersection
      of Gurney and Swanson Streets, a drug corner that her family
      claimed to own and rented for the sale of drugs for [$500] a week.
      Ms. Davila testified that when they arrived at the corner, Ms.
      Medina exited the car and conferred with [Appellant], then
      returned to the car with [Appellant], opened the rear door and
      instructed Ms. Davila to look at [Appellant] so Ms. Davila would be
      able to recognize him later. Ms. Medina told [Appellant] that if
      she could not pick up the rent, that Davila would pick up the
      money for her. Carmen Medina closed the door and started
      walking around the back of the vehicle towards the driver’s side
      of the SUV. [Appellant] had started to walk away before turning
      back and firing shots at Medina and the front passenger, Thomas
      Gorman. Yvette Davila grabbed the young boy and ducked down
      in the back seat of the vehicle until the shots stopped. [Medina
      and Gorman died from their gunshot wounds.]

            In addition to Ms. Davila’s eyewitness testimony, the
      prosecution presented the testimony of Angel Torres, a fellow
      inmate incarcerated with [Appellant], who testified that
      [Appellant] confessed to him that Medina was demanding $500 in
      rent for the corner on which he sold heroin, that he no longer
      wanted to pay her, and that when they walked back to the car[,]
      he shot and killed Medina and Gorman. Additionally, Patricia
      Brown testified that she was [Appellant’s] girlfriend in 2013 and
      she was told by [Appellant] to cut off service to his phone as he
      was afraid the police would be able to trace the phone. [Appellant]
      was correct, as Detective James Dunlap was able, through
      triangulation, to pinpoint the location of [Appellant’s] phone at the
      time of the murder to the scene of the double homicide.

Commonwealth v. Whitefield, 2103 EDA 2016, at 1-2 (Pa. Super. 2017)

(citations omitted).

      Appellant was charged at Docket No. CP-51-CR-0014999-2013 with the

first degree murder of Gorman, and at Docket No. CP-51-CR-0015000-2013

with the first degree murder of Medina, several firearms offenses, possession



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of an instrument of crime, and recklessly endangering another person. 3 On

January 26, 2016, at the close of a bench trial, the trial court found him guilty

of all charges.     On the same day, it imposed consecutive mandatory life

sentences as to both counts of first degree murder, with concurrent sentences

of two and one-half to five years for carrying a firearm in Philadelphia and

possession of an instrument of crime, and one to two years for recklessly

endangering another person. Sentencing Order, 1/26/16.

        This Court affirmed the judgment of sentence on direct appeal, and the

Pennsylvania      Supreme        Court     denied   his   petition   for   allocatur.

Commonwealth v. Whitefield, 2103 EDA 2016 (Pa. Super. 2017), appeal

denied, 405 EAL 2017 (Pa. Feb. 6, 2018).

        Appellant timely filed the present petition under the PCRA, his first, on

March 14, 2018. His appointed counsel filed a Turner/Finley4 “no merit”

letter and petition to withdraw from the representation. On October 9, 2018,

the PCRA court issued a notice of its intent to dismiss the petition without a

hearing, per Pa.R.Crim.P. 907. On November 1st, Appellant filed a response

to the Rule 907 notice. The PCRA court dismissed the petition on November

5, 2019, and granted counsel’s petition to withdraw.            This timely appeal



____________________________________________


3   18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 6108, 907(a), 2705.

4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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followed. Appellant complied with the PCRA court’s directive to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.

       We note that Appellant filed a single notice of appeal listing both trial

court docket numbers, a procedure that was disapproved in Commonwealth

v. Walker, 185 A.3d 969 (Pa. 2018).5             Under Walker, when one order

resolves issues arising on multiple lower court dockets, an appellant must file

separate notices of appeal for each docket number; “[t]he failure to do so will

result in quashal of the appeal.” Id. at 977. On January 24, 2020, this Court

issued a rule to show cause why the present appeal should not be quashed,

and on February 4th, Appellant filed a response. The issue was then referred

to this panel.

       Our review of the record reveals that Appellant was advised, via

personal letter affixed to his attorney’s “no merit” letter, that he could file “an

appeal” upon dismissal of his petition. James Lammendola, Esq., Motion to

Withdraw, 9/13/18, Letter, 9/7/18, Exh. 1. The PCRA court issued a single

order dismissing his petition, and the order listed both docket numbers.

Order, 11/5/18. It instructed Appellant that he had 30 days in which to file

“an appeal” in this Court. Id. Based on these factors, we find that there has

been a breakdown in court operations and therefore we may overlook the

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5 “[A]lthough this Court is willing to construe liberally materials filed by a pro
se litigant, pro se status generally confers no special benefit upon an appellant
. . . a pro se litigant must comply with the procedural rules set forth in the
Pennsylvania Rules of the Court.” Commonwealth v. Lyons, 833 A.2d 245,
251–52 (Pa. Super. 2003).

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defect in Appellant’s notice of appeal. See Commonwealth v. Stansbury,

219 A.3d 157, 160 (Pa. Super. 2019)              (“We conclude that such [similar]

misstatements as to the manner that Appellant could effectuate an appeal

from the PCRA court’s order amount to a breakdown in court operations such

that we may overlook the defective nature of Appellant’s timely notice of

appeal rather than quash pursuant to Walker.”) (footnote omitted).

        In his brief, Appellant raises the following issues for our review:

        Claim #1: The [PCRA] court abused its discretion and denied
        [Appellant] his state and federal due process rights by granting
        [PCRA] counsel leave to withdraw in light of the fact that counsel’s
        no-merit letter failed to comply with the [Turner/Finley]
        standards.

        Claim #2: The meritorious Napue claim

        Claim #3: The Brady claim misconception

        Claim #4: The Fourth Amendment violation

        Claim #5: [ineffective assistance of counsel, where there was]
        insufficient evidence to sustain the verdicts

        Claim #6: [ineffective assistance of counsel, where there was a
        failure] to investigate, interview and produce witnesses

        Claim #7: Insufficient record to engage in meaningful review

Appellant’s Brief at 4 (some capitalization omitted).6


____________________________________________


6   In his concise statement, Appellant raised the following three issues:

        1. The [PCRA] Court erred and/or abused its discretion by failing
        to grant PCRA relief in that [Appellant’s] conviction was procured



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       In his brief, Appellant elaborates on his claims as follows: He argues

that the PCRA court erred in permitting appointed counsel to withdraw, as

counsel did not comply with Turner/Finley. Appellant’s Brief at 8-10. He

asserts that counsel should have brought a claim pursuant to Napue v.

Illinois, 360 U.S. 264 (1969), based on the allegedly perjured testimony of

a witness. Id. at 10-11. Appellant argues that the Commonwealth committed

a Brady violation.7 Id. at 11-12. He claims that the Commonwealth violated

the Fourth Amendment by admitting evidence discovered through the

warrantless seizure of two cellular phones.        Id. at 13-14.     He faults trial

counsel for failing to bring a successful claim arguing the sufficiency of the

evidence supporting his conviction and for failing to perform an adequate

investigation, including neglecting to interview certain witnesses. Id. at 14-

22.    Finally, he claims that the PCRA court erred in denying him a PCRA

hearing. Id. at 22-23.



____________________________________________


       by tainted, knowingly, and intentional false perjured testimony by
       Commonwealth witness Angel Torres . . . .
       2. Trial counsel . . . was ineffective for failing to investigate and
       call critical witnesses . . . .
       3. Trial counsel . . . was ineffective for failing to file a suppression
       motion challenging the lawfulness of the seizure of a Verizon cell
       phone [confirming Appellant’s presence at the scene of the crime].
       ...

Appellant’s Concise Statement of Matters Complained of on Appeal
(Appellant’s Statement), 12/17/18, at 1-3.

7   See Brady v. Maryland, 373 U.S. 83 (1963).

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      In its brief, the Commonwealth relies on the PCRA court’s opinion, and

argues   that   Appellant’s   claims    are    either   waived   or   meritless.

Commonwealth’s Brief at 4-6. The Commonwealth points out that any issue

not raised in Appellant’s Statement is waived per Pa.R.A.P. 1925(b)(4)(vii)

(issues not included in the statement of matters complained of on appeal are

waived). Id. at 5.

      In its opinion, the PCRA court points out that much of the testimony

Appellant faults trial counsel for failing to elicit at trial actually came into

evidence. PCRA Ct. Op. at 6-7. For instance, the account of the decedent’s

minor son was recounted by the police officer who took his statement. Id.

Potential witness Akeya Coates allegedly reported that Davila said someone

named “Johnny” committed the shooting; although Coates did not testify, this

information was in evidence at trial.    Id.    Two potential witnesses would

allegedly have testified as to a different shooting that took place in the weeks

before the murders at issue. Id. at 7. Here, again, defense counsel presented

evidence that the earlier shooter was not Appellant, and therefore the PCRA

court asserts that Appellant cannot establish prejudice. Id.

      The PCRA court notes that Appellant’s argument as to suppression was

raised for the first time in Appellant’s Statement, and is therefore waived.

PCRA Ct. Op. at 7. That court also observes that Appellant’s argument as to

alleged prosecutorial misconduct in eliciting the testimony of Angel Torres

could have been raised on direct appeal, and is thus waived per 42 Pa.C.S. §




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9544(b).8 Id. at 8. Further, the PCRA court points out that the outcome of

the trial would have been the same even if Torres had not testified, and

therefore there can be no prejudice. Id.

       Our review of an order denying PCRA relief is well-established:

       This Court examines 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). Our “review is
       limited to the findings of the PCRA court and the evidence of
       record[.]” Id. Additionally, “[w]e grant great deference to the
       factual findings of the PCRA court and will not disturb those
       findings unless they have no support in the record.” Id. In this
       respect, we will not “disturb a PCRA court’s ruling if it is supported
       by evidence of record and is free of legal error.” Id. However,
       we afford no deference to its legal conclusions. Id. “[W]here the
       petitioner raises questions of law, our standard of review is de
       novo and our scope of review is plenary.”

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc).

       The standard for ineffective assistance of counsel was first announced

by the United States Supreme Court in Strickland v. Washington, 466 U.S.

668 (1984), and adopted by our Supreme Court in Commonwealth v.

Pierce, 527 A.2d 973 (Pa. 1987).               When reviewing claims of ineffective

assistance of counsel, courts must presume that counsel provided effective

assistance. Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018). To

overcome this presumption, courts applying Strickland require the defendant

to plead and prove that (1) the claim has arguable merit; (2) counsel lacked


____________________________________________


8 Under the PCRA, “an issue is waived if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, [or] on appeal . . .
.” 42 Pa.C.S. § 9544(b).

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any reasonable basis for the action or inaction; and (3) the petitioner suffered

prejudice as a result. Id. Prejudice is established only where but for counsel’s

action or inaction, there was a reasonable probability that the proceeding

would have had a different outcome. Id. at 150-51, citing Strickland, 466

U.S. at 689. “[B]oilerplate allegations and bald assertions of no reasonable

basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove

that counsel was ineffective.” Commonwealth v. Paddy, 15 A.3d 431, 443

(Pa. 2011). The Strickland factors must not be applied mechanically:

      Although those principles should guide the process of decision, the
      ultimate focus of inquiry must be on the fundamental fairness of
      the proceeding whose result is being challenged. In every case
      the court should be concerned with whether, despite the strong
      presumption of reliability, the result of the particular proceeding
      is unreliable because of a breakdown in the adversarial process
      that our system counts on to produce just results.

Strickland, 466 U.S. at 696; see also Commonwealth v. Diaz, 226 A.3d

995, 1008 (Pa. Mar. 26, 2020).

      Appellant first argues that the PCRA court erred in allowing appointed

counsel to withdraw. Appellant’s Brief at 8. However, as this claim is not

included in Appellant’s Statement, it is waived, per Pa.R.A.P. 1925(b)(4)(vii).

      Appellant next asserts that his conviction was secured with perjured

testimony from Angel Torres. Appellant’s Brief at 10. Torres testified that he

used to sell drugs with Appellant, and that while both were incarcerated,

Appellant confessed to the shooting. N.T., 1/22/16, at 6-12. Appellant cites

Napue v. Illinois, 360 U.S. 264 (1969), a case in which the Supreme Court



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held that a prosecutor’s knowing use of false testimony violates the Due

Process Clause of the 14th Amendment. Id. at 269. The PCRA court sat as

factfinder in Appellant’s trial, and thus the court’s assurance that Appellant

would have been convicted even if Torres had not testified establishes that

there is no prejudice here. Thus, even if we consider this argument as one of

ineffective assistance for failure to raise the core claim on direct appeal, where

there is no Strickland prejudice there can be no relief. See Strickland, 466

U.S. at 689 (prejudice established only where but for counsel’s inaction, it is

reasonably probable that outcome would have been different).

      Next, Appellant makes what he characterizes as a Brady claim.            He

begins by rehashing his argument that PCRA counsel did not comply with

Turner/Finley. Appellant’s Brief at 11-12. He then claims that trial counsel

should have objected to the late disclosure of Angel Torres’ testimony, and

should have requested a continuance to investigate Torres. Id. at 12. Given

the PCRA court’s determination that Torres’ testimony ultimately had little, if

any, impact, this claim fails. See PCRA Ct. Op. at 8.

      Appellant also argues that the Commonwealth committed a warrantless

seizure of two cellular phones. Appellant’s Brief at 14. Appellant claims that

the warrantless seizure led police to Alexandra Krochak, who testified that she

was present when Appellant committed the shooting and that she discussed

the shooting with him afterward, when he said that he feared that if he did

not shoot first, he himself would be shot. N.T., 1/21/16, at 159-62, 172-73.

The PCRA court is correct in concluding that claims raised for the first time in

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Appellant’s Statement are not preserved, and therefore this claim fails. See

PCRA Ct. Op. at 7. See Commonwealth v. Edmiston, 851 A.2d 883, 889

(Pa. 2004) (“Claims not raised in the PCRA court are waived and cannot be

raised for the first time on appeal to this Court.”).

      Next, Appellant argues that because of counsel’s ineffectiveness, he has

been denied the opportunity to have this Court consider his claim that the

evidence against him is insufficient to sustain his conviction. Appellant’s Brief

at 14-15.    This claim was not included in Appellant’s Statement, and is

therefore waived. See Pa.R.A.P. 1925(b)(4)(vii).

      Appellant also argues that trial counsel was ineffective for failing to

interview several potential defense witnesses.

      When raising a claim of ineffectiveness for the failure to call a
      potential witness, a petitioner satisfies the performance and
      prejudice requirements of the Strickland 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.

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

Appellant names two witnesses — Sasha Cabellero and Christopher Rivera —

who allegedly would have rebutted the inference that Appellant was involved

in a prior shooting. Appellant’s Brief at 16. Trial counsel “clearly presented

evidence that the shooter in the prior shooting was not [Appellant].” PCRA

Ct. Op. at 7. Thus, Appellant cannot establish prejudice.



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      Next, Appellant names a witness who would have allegedly called into

question Davila’s identification of the shooter by testifying that she had said

prior to trial that the shooter was named “Johnny.” Appellant’s Brief at 16-

17. This evidence was also admitted at trial, and thus the proposed testimony

would have been merely cumulative. See N.T., 1/25/16, at 79-82; 117-18.

Defense counsel fully explored inconsistencies in Ms. Davila’s identification at

trial, including the fact that she allegedly named “Johnny” as the shooter. See

N.T., 1/21/16, at 95-97. Because the evidence at issue would have been, at

best, merely redundant and cumulative, this claim is meritless.

      Finally, Appellant argues that “[i]f this court finds the record insufficient

to adjudicate [Appellant’s] trial counsel’s ineffectiveness claims, the Court

should remand for an evidentiary hearing . . . .”        Appellant’s Brief at 22.

Because Appellant has not established that there is a genuine issue of material

fact, the PCRA court correctly dismissed his petition without a hearing. See

Pa.R.Crim.P. 907(1).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/20




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