J-S22044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :    IN THE SUPERIOR COURT OF
                                                 :         PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    PHILLIP MALDONADO                            :
                                                 :
                       Appellant                 :    No. 83 MDA 2020

            Appeal from the PCRA Order Entered December 13, 2019
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0000656-2015


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                      FILED JUNE 23, 2020

        Appellant,   Phillip   Maldonado,       appeals     from   the    order     entered

December 13, 2019, that denied his first petition filed under the Post

Conviction Relief Act (“PCRA”).1 We affirm.

        The facts underlying this appeal are as follows.              On May 16, 2014,

Tiffany    Hoover      purchased      drugs      from     Appellant      at   his    home.

Commonwealth           v.   Maldonado,         No.   1504   MDA    2016,      unpublished

memorandum at 2 (Pa. Super. filed June 13, 2017) (citing N.T., 8/3/2016, at

18-20); PCRA Court Opinion, dated December 13, 2019, at 2. While she was

at Appellant’s house,



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
J-S22044-20


     Appellant introduced her to the victim[, Julio Rivera,] and asked
     her if she wanted to make some money, which Ms. Hoover
     understood as having sex or “doing other things” with the victim.
     [N.T., 8/3/2016,] at 20. Ms. Hoover observed that the victim had
     bags of heroin that he purchased from Appellant; bags identical in
     appearance to bags she purchased from Appellant. See id. at 20-
     21. The victim and Ms. Hoover then drove to a motel [in
     Lebanon], smoking crack cocaine, purchased from Appellant,
     together. See id. When they got into the motel room, Ms. Hoover
     stated that she injected heroin that she had purchased from
     Appellant, while the victim sniffed his heroin. See id. at 21-23.
     Then, [when they ran out of heroin,] at the victim’s request,
     Ms. Hoover contacted Appellant to purchase more heroin. See id.
     at 22. Appellant came to the motel [in a taxi cab] and delivered
     an additional four bags of heroin. See id. Ms. Hoover helped the
     victim inject one bag of heroin; shortly thereafter, she observed
     the victim get sick and then go into a sleepy state. See id. at 24-
     25. At that point, Ms. Hoover stole some of the victim’s property
     and left. See id. at 25. The next morning, the motel’s assistant
     manager found the victim dead in the room and contacted the
     police. See id. at 11-12.

     Lebanon City Police Detective William Walton . . . spoke with
     Appellant on three separate occasions. See id. at 46-50. In his
     first statement, Appellant admitted that he purchased a specific
     brand of heroin called Sale on Ms. Hoover’s behalf, then sold it to
     her on May 16, 2014. See id. at 46. He also admitted going to
     the motel to sell additional drugs to her, but claimed it was crack
     cocaine not heroin.        See id. at 47.       During the second
     conversation, Appellant claimed that when Ms. Hoover contacted
     him for additional heroin, it was too late in the evening to contact
     the dealer he purchased it from and that this was why he delivered
     crack cocaine. See id. at 48. During the third conversation,
     Appellant admitted delivering the second batch of heroin to
     Ms. Hoover but claimed that she must have tampered with it
     before giving it to the victim. See id. at 50.

Maldonado, No. 1504 MDA 2016, at 2-3 (some formatting); see also PCRA

Court Opinion, dated December 13, 2019, at 2.

     “On April 27, 2015, the Commonwealth filed a criminal information

charging Appellant with one count each of[:] drug delivery resulting in death[


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J-S22044-20


(“DDRD”), a felony of the first degree;] criminal conspiracy[;] possession with

intent to deliver a controlled substance[;] and receiving stolen property.[2]”

Id. at 2. When Sergeant Jonathan Hess of the Lebanon City Police “gave

Appellant a copy of the charges . . ., Appellant stated that he gave the heroin

to Ms. Hoover and she ‘shot [the victim] up.’”        Id. at 3-4 (quoting N.T.,

8/3/2016, at 65).

       On March 26, 2015, Appellant waived his preliminary hearing; at this

time, he was represented by the Lebanon County Public Defender. On May 5,

2015, after finding “its appearing to the [trial c]ourt that there is a conflict of

interest by the Public Defender’s Office,” the court appointed new trial counsel

to represent Appellant. Order of Court, 5/3/2015.

       On June 26, 2015, [t]rial [c]ounsel filed a Pretrial Motion seeking
       to have the [DDRD] and Conspiracy charges dismissed and
       seeking a jury instruction on Involuntary Manslaughter. [The trial
       court] conducted a hearing on the Pretrial Motion on August 12,
       2015. On September 15, 2015, [the trial court] issued an Order
       refusing to dismiss the [DDRD] and Conspiracy charges and
       deferring the decision regarding the Involuntary Manslaughter
       instruction until trial. . . .

       On August 3, 2016, immediately before trial was to begin,
       [Appellant] submitted a letter to the [trial court] complaining
       about [t]rial [c]ounsel’s representation and an alleged conflict of
       interest. The [trial court] met with counsel in chambers and read
       the letter on the record. Trial [c]ounsel acknowledged that
       [Appellant] had complained about his representation on an almost
       weekly basis. [Trial counsel] advised [Appellant] that he could
       conduct his defense pro se if he was unhappy, but [Appellant] had
       declined that suggestion. [The trial court] denied [Appellant]’s

____________________________________________


218 Pa.C.S. §§ 2506(a), 903(a)(1), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.
§ 3925(a), respectively.

                                           -3-
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      request for the appointment of new counsel and [Appellant]
      proceeded to trial with [t]rial [c]ounsel conducting his defense.

PCRA Court Opinion, dated December 13, 2019, at 5, 8-9 (citing N.T.,

8/3/2016, at 3-6).

      At trial, “[c]ounsel conducted a lengthy cross-examination of Hoover[,]”

id. at 21, which included the following:

      Q.    And you know that when all is said and done you’re going
      to be standing in front of a judge and you’re going to be sentenced
      for your role in [DDRD], do you not?

      A.    Yes.

      Q.    Okay. When you stand[] in front of that judge, you are
      going to tell that judge that you were sitting here and testifying
      today, aren’t you?

      A.    Yes.

      Q.    You want that judge to know that you were sitting here and
      being cooperative and talking to us, right?

      A.    Yes.

      Q.    And you want that judge to know that you helped the
      prosecutor as much as you could, don’t you? Isn’t that what you
      want the judge to know?

      A.    Uh-huh, yes. . . .

      Q.    Now, you have three cases right now that are pending –

      A.    Yes. . . .

      Q.    And they have been delayed in order for you to come in here
      and testify, isn’t that correct?

      A.    I’m really not sure.   I haven’t spoken to my lawyer in a
      while. . . .

      [Q.] You’re in a green uniform right now, but isn’t true that
      recently you have been in a red uniform in the prison?

      A.    Yes.


                                     -4-
J-S22044-20


     Q.     And you were in a red uniform, meaning that you were in a
     disciplinary uniform, correct?

     A.    Yes, I was.

     Q.    And that was for using drugs in the prison; isn’t that right?

     A.    Yes.

     Q.    Okay. So while you were in prison this time you have been
     using drugs?

     A.    Yes. . . .

     Q.    Now, you said that [Appellant] was your connection to
     obtaining drugs when you were out on the street?

     A.    Yes.

     Q.    You had more than one connection though, right?

     A.    Yes. . . .

     Q.    So we talked about your story that you’re giving today, but
     you also acknowledge that you have given stories in the past to
     the police, correct?

     A.    Yes.

     Q.    By my count you met with the police three separate times
     and [have] given three separate stories; isn’t that right?

     A.    Not three separate stories. . . .

     Q.   So when you talked to the police just six days after this
     happened, more than two years ago, you didn’t tell them anything
     about [Appellant] selling you an additional four bags of heroin, did
     you?

     A.    I – I told them that he came down in a taxi, yes. . . .

     Q.     Okay. And the reason that you went with [the victim] was
     because your intention was to have sex with him for money; isn’t
     that right?

     A.    Yes.

N.T., 8/3/2016, at 29-33, 36, 38-39.



                                     -5-
J-S22044-20



       Trial counsel “questioned Detective Walton about the existence of any

videos and Detective Walton . . . testified that he did not believe the [m]otel

had any cameras.” PCRA Court Opinion, dated December 13, 2019, at 23.

       The parties stipulated that the victim died because of mixed
       substance toxicity. See [N.T., 8/3/2016,] at 68. Namely, he had
       ethanol    (alcohol),    morphine,    cocaine,    cocaethylene,
       benzoylecgonine, and 6-monoacetylmorphine in his blood at the
       time of death. See id.

       Joann Sell, the retired manager of the toxicology department for
       Health Network Laboratories, also testified as an expert at trial.
       See id. at 69, 79. Ms. Sell stated that neither the amounts of
       alcohol nor the amounts of cocaine in the victim’s blood were
       sufficient to cause death. See id. at 90, 92-94. She testified that,
       to a reasonable degree of scientific certainty, the victim would not
       have died but for the use of heroin. See id. at 94-95, 105, 108.[3]

       At the close of the Commonwealth’s evidence, Appellant moved
       for a judgment of acquittal with respect to the count of receiving
       stolen property. See id. at 112. The trial court granted the
       motion. See id.

       Appellant took the stand on his own behalf. See id. at 113.
       Appellant testified that he both used and sold drugs, sometimes
       acting as an intermediary, purchasing drugs from another dealer
       and selling them to a user. See id. at 113-15. He admitted that
       he purchased the Sale brand of heroin from another dealer and
       sold it to Ms. Hoover on May 16, 2014. See id. at 115. He also
       admitted that, later that day, after receiving a phone call from
       Ms. Hoover, he took a cab to the motel and sold her crack cocaine;
       he believed it was too late at night to get more of the Sale brand
       of heroin. See id. at 116-18. Appellant claimed that Ms. Hoover
____________________________________________


3 6-monoacetylmorphine is a marker for heroin use, and, based on the level
of 6-monoacetylmorphine in the victim’s system, Sell concluded that he died
a short time after ingesting the heroin, as heroin dissipates within two hours
of consumption. N.T., 8/3/2016, at 108-09; PCRA Court Opinion, dated
December 13, 2019, at 4.




                                           -6-
J-S22044-20


        was alone at the motel room and averred that he had never sold
        drugs to the victim and did not ever see him. See id. at 118-19.

        The jury convicted Appellant of all remaining charges, including
        involuntary manslaughter,[4 a felony of the second degree,] which
        Appellant requested. See id. at 133, 139-40. On August 31,
        2016, the trial court sentenced Appellant to an aggregate term of
        incarceration of not less than nine nor more than nineteen years
        to be served consecutively to [Appellant’s five to ten year
        sentence in an unrelated action at Docket Number CP-38-CR-
        0001143-2014.]      See Sentencing Order, 8/31/16, at i-iii.[5
        Appellant received no penalty for involuntary manslaughter, as it
        merged with DDRD. Id. at ii.] On September 8, 2016, Appellant
        filed both a timely notice of appeal and a concise statement of
        errors complained of on appeal.

Maldonado, No. 1504 MDA 2016, at 4-5 (some formatting).

        Thereafter, [Appellant] sent correspondence to the [trial c]ourt
        which [the court] treated as a Motion to Appoint Substitute
        Counsel. In this correspondence, [Appellant] requested that
        another attorney be appointed to handle his appeal based on
        allegations of a conflict of interest between himself and [t]rial
        [c]ounsel and various shortcomings in [t]rial [c]ounsel’s handling
        of his defense.

        [The trial court] conducted a hearing on that Motion on
        September 28, 2016. At that hearing, [Appellant] complained
        that there was a conflict of interest because [t]rial [c]ounsel had
        questioned his credibility during cross-examination in another
        criminal action, Commonwealth v. William Culbreath,2 in
        which [t]rial [c]ounsel had represented William Culbreath and
        Appellant had testified as a witness for the Commonwealth. He
        also raised various complaints regarding [t]rial [c]ounsel’s
        handling of his defense and the fact that [t]rial [c]ounsel had
        advised him that his appeal had no merit.


____________________________________________


4   18 Pa.C.S. § 2504(a).
5 On September 8, 2016, the trial court entered an amended written
sentencing order, so as to correct a clerical error from the written sentencing
order dated August 31, 2016. Appellant’s judgment of sentence, however,
did not change.

                                           -7-
J-S22044-20


            2  Commonwealth v. William Davaughn Culbreath,
            Court of Common Pleas of Lebanon County, No. CP-38-CR-
            763-2014. Both the [trial c]ourt and [Appellant] requested
            a transcript of [Appellant]’s testimony from the jury trial
            which was conducted in that case on January 5, 2015. The
            notes of testimony of that jury trial were never transcribed
            and the court stenographer who recorded the proceeding
            has left County employment.             Unfortunately, the
            stenographer’s notes could not be located for a transcript to
            be prepared[.]

PCRA Court Opinion, dated December 13, 2019, at 5-6.              The trial court

continued the hearing until October 5, 2016. At that time, Appellant agreed

to allow trial counsel to continue representing him on appeal, with the

understanding that he could raise ineffective assistance of counsel claims

against trial counsel on collateral review. See N.T., 10/5/2016, at 31-33; see

also Letter from trial court to trial counsel (October 19, 2016).

        “On December 9, 2016, counsel filed a motion to withdraw and

Anders[6] brief in this Court[,]” asserting that “the evidence was insufficient

to sustain Appellant’s conviction[.]” Maldonado, No. 1504 MDA 2016, at 5.

On June 13, 2017, this Court affirmed Appellant’s judgment of sentence and

granted trial counsel’s request to withdraw. Id. at 1.

        On December 20, 2017, Appellant filed his first, pro se, timely PCRA

petition.       The next day, the PCRA court appointed counsel to represent

Appellant. On January 30, 2018, the PCRA court ordered PCRA counsel to file



____________________________________________


6   Anders v. California, 386 U.S. 738 (1967).




                                           -8-
J-S22044-20



an amended petition within 30 days of the date of the order. On February 20,

2018, PCRA counsel filed a supplemental PCRA petition.7

       On May 16, 2019, the PCRA court held an evidentiary hearing, during

which --

       [Appellant] again raised his claim of a conflict of interest between
       himself and [t]rial [c]ounsel due to their interaction during the
       William Culbreath jury trial. [Appellant] claim[ed] that during
       his cross-examination [at the Culbreath trial], [t]rial [c]ounsel
       attacked [Appellant]’s credibility and called him a liar. As a result,
       [Appellant] claim[ed] that [t]rial [c]ounsel was “prejudiced
       against me from the beginning.” [Appellant] claim[ed] that he
       was deprived of his right to effective representation when [t]rial
       [c]ounsel told him that “he couldn’t file a conflict of interest or
       ineffective counsel against himself” and failed to request that new
       counsel be appointed to handle this matter. . . . Trial [c]ounsel
       [testified] that he did personally meet with [Appellant] prior to the
       jury trial although he was unable to recall the exact number of
       times or the locations of their meetings due to the passage of
       time: “there was no way to go to trial without having a face-to-
       face meeting.” He explained that these meetings would have
       occurred at the Lebanon County Correctional Facility and/or at the
       Courthouse. He explained that he was fully prepared for the jury
       trial and knew that [Appellant] wanted to testify; he also knew the
       substance of the testimony of both [Appellant] and Hoover. He
       also noted that [Appellant] had written him numerous letters
       expressing his wishes and beliefs about the case. Trial [c]ounsel
       always answered these letters.

PCRA Court Opinion, dated December 13, 2019, at 9, 20 (quoting N.T.,

5/16/2019, at 10, 76). PCRA counsel asked trial counsel, “Would you think it
____________________________________________


7 In the certified record, the supplemental PCRA petition has two date-stamps:
February 20, 2018, and April 10, 2018. Both state “Entered & Filed, Clerk of
Courts, Lebanon, PA.” There is no indication in the record why there are two
filing dates. Nonetheless, as the certified docket lists February 20, 2018, as
the date that the supplemental PCRA petition was filed, we will accept that
date and thus consider the supplemental PCRA petition to have been timely
filed.

                                           -9-
J-S22044-20



would have been helpful or beneficial to go through each different variation of

the stories that [Hoover] gave?”           N.T., 5/16/2019, at 91.    Trial counsel

answered, “If the stories were different. In a substantive way, I think that

may have been useful, yes.” Id. Also, trial counsel believed that the motel

did not have any surveillance cameras.              PCRA Court Opinion, dated

December 13, 2019, at 23.

       On December 13, 2019, the PCRA court denied Appellant’s petition via

a written order and opinion. The lower court’s docket reveals that Appellant,

who was still represented by counsel, filed a pro se notice of appeal on

January 9, 2020, but the notice was never forwarded to this Court.               On

January 10, 2020, PCRA counsel filed a notice of appeal, which was docketed

in this Court as the instant appeal at No. 83 MDA 2020. As the counseled

notice of appeal was timely filed, there was no need for this Court to order

that the trial court forward the pro se notice of appeal to this Court to be

docketed, in order for Appellant to obtain the benefit of an earlier filing date.8

       Appellant now presents the following issues for our review:

       [1.] Whether the Appellant was denied his constitutionally
       guaranteed right to effective representation when Appellant avers
       that [trial counsel] failed to interview and call Eric Michael Livering
       as a witness as he would have testified that Tiffany Hoover
       informed him that she cut the drugs that she used to inject into
       the victim that ultimately killed him?

____________________________________________


8 On January 17, 2020, PCRA counsel filed Appellant’s statement of errors
complained of on appeal. On January 21, 2020, the PCRA court entered a
statement that its opinion dated December 13, 2020, would serve as its
opinion pursuant to Pa.R.A.P. 1925(a).

                                          - 10 -
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     [2.] Whether the Appellant was denied his constitutionally
     guaranteed right to effective representation when Appellant avers
     that [trial counsel] failed to interview or call the following
     witnesses to rebut Tiffany Hoover’s testimony that she provided
     at trial regarding what happened on the day in question:
     Racheal Pilkington; Christine Shaw; and Samantha Santiago?

     [3.] Whether the Appellant was denied his constitutionally
     guaranteed right to effective representation when Appellant avers
     that [trial counsel] failed to file a motion to allow Appellant to have
     a new preliminary hearing when Appellant was not granted his
     promise to be returned to the Lancaster County Prison in return
     for Appellant waiving his preliminary hearing?

     [4.] Whether the Appellant was denied his constitutionally
     guaranteed right to effective representation when Appellant avers
     that [trial counsel] failed to file a Petition for Writ of Habeas
     Corpus to attack the Commonwealth’s establishment of a prima
     facie case?

     [5.] Whether the Appellant was denied his constitutionally
     guaranteed right to effective representation when Appellant avers
     that [trial counsel] asked the [trial c]ourt to include the offense of
     Involuntary Manslaughter?

     [6.] Whether the Appellant was denied his constitutionally
     guaranteed right to effective representation when Appellant avers
     that [trial counsel] failed to have confidential face-to-face
     communication with him while preparing for trial?

     [7.] Whether the Appellant was denied his constitutionally
     guaranteed right to effective representation when Appellant avers
     that   [trial counsel]     failed  to   properly   cross-examine
     Tiffany Hoover regarding the numerous variations of her story?

     [8.] Whether the Appellant was denied his constitutionally
     guaranteed right to effective representation when Appellant avers
     that [trial counsel] failed to provide a proper defense for
     Appellant’s trial by failing to obtain the [m]otel surveillance video
     and taxi records to prove that Appellant was not present at the
     [m]otel when the drugs were given to the victim that resulted in
     his death?

     [9.] Whether the Appellant was denied his constitutionally
     guaranteed right to effective representation when Appellant avers
     that [trial counsel] failed to obtain the victim’s phone records to

                                     - 11 -
J-S22044-20


      prove that he was contacting other drug dealers on the night in
      question?

      [10.] Whether the Appellant was denied his constitutionally
      guaranteed right to effective representation when Appellant avers
      that [t]rial [c]ounsel should have filed a Suppression Motion
      regarding the fact that the Commonwealth reviewed the phone
      records prior to the search warrant being filed?

      [11.] Whether the Appellant was denied his constitutionally
      guaranteed right to effective representation when Appellant avers
      that [trial counsel] was a conflict of interest to the case as he
      cross-examined Appellant in a previous case where Appellant was
      a Commonwealth witness?

Appellant’s Brief at 4-8 (issues re-ordered to facilitate disposition) (suggested

answers omitted).

      “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting

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

denied (July 17, 2019).

      All of Appellant’s appellate challenges allege ineffective assistance of

trial counsel.

      [C]ounsel is presumed to be effective.

      To overcome this presumption, a PCRA petitioner must plead and
      prove that: (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.

      A failure to satisfy any of the three prongs of this test requires
      rejection of a claim of ineffective assistance.

Id. at 1000 (internal brackets, citations, and quotation marks omitted).

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      Appellant’s first two claims specifically allege ineffective assistance of

trial counsel for failure to call certain witnesses – Eric Michael Livering,

Racheal Pilkington, Christine Shaw, and Samantha Santiago.

      In establishing whether defense counsel was ineffective for failing
      to call witnesses, Appellant must [still] prove (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.

Id. at 998 (internal brackets omitted) (quoting Commonwealth v. Treiber,

121 A.3d 435, 463-64 (Pa. 2015)). Appellant has failed to allege, let alone

prove, that Livering was available or willing to testify for the defense. See

Appellant’s Brief at 15-18. Likewise, he has failed to plead or to prove that

Pilkington, Shaw, or Santiago were willing to testify for the defense. See id.

at 18-21.   For example, none of these four potential witnesses provided

affidavits establishing that they were willing to testify for the defense, and

none of them were called to testify at the PCRA hearing.           Accordingly,

Appellant has not established that trial counsel was ineffective for failing to

call these four witnesses. Medina, 209 A.3d at 998.

      Next, Appellant contends that trial counsel was ineffective for failing to

request a new preliminary hearing after Appellant initially waived said hearing

in the belief that he would be transferred from Lebanon County Prison to

Lancaster County Prison if he agreed to the waiver. Appellant’s Brief at 21-

22. However, in order to establish ineffectiveness, Appellant must establish

“that there was a reasonable probability of a different outcome if not for

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counsel’s error.” Medina, 209 A.3d at 1000. Appellant fails to establish how

having a preliminary hearing would have resulted in a different outcome at his

trial, such as not guilty verdicts on any or all of the charges. See Appellant’s

Brief at 21-24. For that reason, Appellant is unable to establish the prejudice

prong of the ineffectiveness test, id., and, as he cannot satisfy one prong, the

entire ineffectiveness claim fails. Medina, 209 A.3d at 1000.

      Appellant next maintains that trial counsel was ineffective for failing to

file a petition for writ of habeas corpus “to attack the Commonwealth’s

establishment of a prima facie case.” Appellant’s Brief at 24. This Court has

already reviewed the evidence and found it sufficient to support Appellant’s

convictions beyond a reasonable doubt on all counts.           See generally

Maldonado, No. 1504 MDA 2016. A preliminary hearing has a lower burden

of proof of probable cause. Commonwealth v. McBride, 595 A.2d 589, 592

(Pa. 1991) (“A judge at a preliminary hearing is not required, nor is he

authorized to determine the guilt or innocence of an accused; his sole function

is to determine whether probable cause exists to require an accused to stand

trial on the charges contained in the complaint.”); Commonwealth v. Marti,

779 A.3d 1177, 1180 (Pa. Super. 2001) (“[t]he Commonwealth need not

prove the elements of the crime beyond a reasonable doubt; rather, the prima

facie standard requires evidence of the existence of each and every element

of the crime charged”; “the Commonwealth need only demonstrate sufficient

probable cause to believe the person charged has committed the offense”).

Appellant points to no evidence presented by the Commonwealth at trial that

                                     - 14 -
J-S22044-20



was different than what it would have presented at a preliminary hearing. This

evidence satisfied the burden of proof of beyond a reasonable doubt; ergo, it

would have fulfilled the lower burden of proof of probable cause at a

preliminary hearing.         Hence, no purpose would have been served by trial

counsel filing a petition for writ of habeas corpus, and the underlying legal

claim thereby lacks arguable merit. Again, as Appellant cannot satisfy one

prong of the ineffectiveness test, this entire ineffectiveness claim fails.

Medina, 209 A.3d at 1000.

          Appellant further contends that trial counsel was ineffective, because he

“asked the [trial c]ourt to include the offense of Involuntary Manslaughter.”

Appellant’s Brief at 27. “Appellant avers that he was severely prejudiced when

the charge of Involuntary Manslaughter was added at the end, as the Jury

would now believe that he was guilty of Involuntary Manslaughter.” Id. at

28. Appellant’s argument is nonsensical. A jury found that the evidence was

sufficient to convict Appellant of DDRD, a felony of the first degree; trial

counsel’s request for a charge of involuntary manslaughter was made in an

attempt to persuade the jury that he should be convicted of a lesser crime, as

involuntary manslaughter was charged as only a felony of the second degree.

Additionally, Appellant was not sentenced for involuntary manslaughter and

hence is not prejudiced by this conviction. This challenge thereby merits no

relief.

          Appellant   next   argues   that   he   was   denied   his   constitutionally

guaranteed right to effective representation when . . . [trial counsel] failed to

                                         - 15 -
J-S22044-20



have confidential face-to-face communication with [Appellant] while preparing

for trial [and] . . . only one time did he have a very brief phone conversation

with him pertaining to housing.” Appellant’s Brief at 29-30. After a thorough

review of the record, the briefs of the parties, the applicable law, and the PCRA

court opinion, we conclude that this challenge merits no relief. The PCRA court

opinion properly discusses and disposes of that question:

      We find no ineffectiveness on the part of [t]rial [c]ounsel in this
      regard. Trial [c]ounsel testified that he personally met with
      [Appellant] and the two exchanged numerous written
      correspondence in which [Appellant] was able to express his
      wishes regarding his defense and [t]rial [c]ounsel was able to
      provide answers to [Appellant]’s questions. Although [Appellant]
      may have desired more face-to-face time with [t]rial [c]ounsel,
      we believe the two had established an effective line of
      communication and were able to fully prepare the defense
      strategy prior to trial. Thus, we find no basis for collateral relief.

PCRA Court Opinion, dated December 13, 2019, at 21; see also id. at 20

(citing N.T., 5/16/2019, at 76).

      Appellant further asserts that he “was denied his constitutionally

guaranteed right to effective representation when . . . [trial counsel] failed to

properly cross-examine Tiffany Hoover regarding the numerous variations of

her story.” Appellant’s Brief at 32. Appellant alleges that he “ask[ed trial

counsel] to ask Tiffany Hoover various questions pertaining to her numerous

stories and statements, but he never asked [her] any of those questions[,]”

even though trial counsel later “testified at the PCRA [h]earing that it would

have been useful to go through the different variations of Tiffany Hoover’s

testimony.” Id. at 32-33 (citing N.T, 5/16/2019, at 91).


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       However, we agree with the PCRA court’s observation that Appellant

“does not divulge to us what specific questions he feels [t]rial [c]ounsel should

have asked of Hoover.” PCRA Court Opinion, dated December 13, 2019, at

22.9 Moreover,

       [trial counsel’s] questioning exposed [Hoover’s] motives for
       testifying for the Commonwealth, impeached her credibility by
       reference to prior statements, noted her intention to trade sex for
       drugs on the night of this incident, discussed charges filed against
       her for using drugs in prison, and established that she had other
       drug sources besides [Appellant]. He asked her at length about
       her pending criminal charges, including an action involving
       [DDRD] charges for [the victim]’s death. Hoover admitted that
       her three pending cases had all been delayed pending her
       testimony in this action and she admitted that she had initially lied
       and left out significant details when questioned about this incident
       by the police, having given three different versions of [w]hat had
       transpired on the night of [the victim]’s death.

Id. at 21-22; see N.T., 8/3/2016, at 29-33, 36, 38-39. Like the PCRA court,

“we fail to see what more he could have asked to impeach her testimony.”

PCRA Court Opinion, dated December 13, 2019, at 22.             Ergo, Appellant’s

underlying claim lacks arguable merit, and, since Appellant has failed to

establish this one prong of the ineffectiveness test, his entire claim that trial

counsel was ineffective for failing to cross-examine Hoover properly likewise

fails. Medina, 209 A.3d at 1000.




____________________________________________


9 Not only did Appellant not submit any questions to the trial court, but
Appellant did not provide any of these alleged questions in his appellate brief,
either. See Appellant’s Brief at 32-34.



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       Appellant furthermore urges this Court to find that trial counsel was

ineffective for “failing to obtain the [m]otel surveillance video and taxi records

to prove that Appellant was not present at the [m]otel when the drugs were

given to the victim that resulted in his death.”      Appellant’s Brief at 34.10

Additionally, he now alleges that “the victim passed away . . . prior to

Appellant’s arrival at the [m]otel, and the taxicab records that prove that fact.”

Id. at 36. He continues: “In addition, although Appellant had the taxicab

records from his discovery packet, [trial counsel] failed to review them and

use them at trial even though Appellant requested that he do so.” Id. at 35-

36.

       As noted above, trial counsel “questioned Detective Walton about the

existence of any videos and Detective Walton . . . testified that he did not

believe the [m]otel had any cameras.”              PCRA Court Opinion, dated

December 13, 2019, at 23. In fact, Appellant has provided no evidence “that

the motel had any surveillance cameras or that any footage of the night of

this incident was ever in existence. If such footage was ever in existence, it

is unlikely that it would still be available a year later when [t]rial [c]ounsel

was appointed to the case.” Id.; see also Order of Court, 5/3/2015.
____________________________________________


10 We note that DDRD does not require the provider’s actual presence when
the victim consumes the drugs or dies as a result of consumption. 18 Pa.C.S.
§ 2506(a) (“A person commits a felony of the first degree if the person
intentionally administers, dispenses, delivers, gives, prescribes, sells or
distributes any controlled substance or counterfeit controlled substance in
violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233,
No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act,
and another person dies as a result of using the substance.”).

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      Appellant’s underlying legal claim therefore relies entirely upon the taxi

cab records. See Appellant’s Brief at 35-36. Thus, in order to determine

whether this underlying legal claim has arguable merit, we would need to

review those records. However, they are not in the certified record; in fact,

no exhibits from any of Appellant’s hearings or his trial appear in the certified

record.

      Our law is unequivocal that the responsibility rests upon the
      appellant to ensure that the record certified on appeal is complete
      in the sense that it contains all of the materials necessary for the
      reviewing court to perform its duty. . . . [T]he ultimate
      responsibility of ensuring that the transmitted record is complete
      rests squarely upon the appellant and not upon the appellate
      courts.

Commonwealth v. Holston, 211 A.3d 1264, 1276 (Pa. Super. 2019)

(quoting Commonwealth v. Bongiorno, 905 A.2d 998, 1000-1001 (Pa.

Super. 2006) (en banc)). By failing to ensure that the taxi cab records were

in the certified record, Appellant has precluded us from determining whether

the underlying legal claim has arguable merit. As he has failed to establish

this one prong of the ineffectiveness test, his entire ineffectiveness claim

based on the taxi cab records fails. Medina, 209 A.3d at 1000.

      Appellant’s antepenultimate claim of ineffective assistance of trial

counsel is that counsel “failed to obtain the victim’s phone records to prove

that he was contacting other drug dealers on the night in question.”

Appellant’s Brief at 37. The victim’s telephone records do not appear in the

certified record; nevertheless, assuming that they did and that they showed

that the victim called other drug dealers on the night of his death, such

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evidence would still not establish that Appellant did not deliver the fatal dose.

Moreover, Hoover explicitly testified that the bag that she injected into the

victim immediately before he became sick and lethargic came from Appellant,

and no evidence to the contrary was presented. Maldonado, No. 1504 MDA

2016, at 2-3 (citing N.T., 8/3/2016, at 22, 24-25). For this reason, Appellant

has failed to establish that the outcome of his trial would have changed had

trial counsel obtained the victim’s telephone records and thus failed to

establish the prejudice prong of the ineffectiveness test, and, without this one

prong, this entire claim fails. Medina, 209 A.3d at 1000.

      In his penultimate claim, Appellant believes that trial counsel was

ineffective for failing to file a motion to suppress the victim’s telephone

records. Appellant’s Brief at 40-41. In this Court’s review of the sufficiency

of the evidence on direct appeal, we made no mention of the victim’s phone

records. Maldonado, No. 1504 MDA 2016, at 9-11. This Court relied upon

Hoover’s and Sell’s testimony, as well as the stipulation that the victim died

of mixed toxicity. Id. (citing N.T., 8/3/2016, at 18-25, 68, 89-95, 105, 108).

Thus, even without the victim’s telephone records, the evidence was sufficient

for the jury to find Appellant guilty, and, therefore, Appellant cannot show

that there was a reasonable probability of a different outcome and, hence,

cannot demonstrate prejudice.      Medina, 209 A.3d at 1000.        Once again,

without this one prong of the ineffectiveness test, the entire claim fails.

      Finally, Appellant maintains that trial counsel had a conflict of interest,

because counsel had “cross-examined Appellant in a previous case where

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Appellant was a Commonwealth witness.” Appellant’s Brief at 12. “Because

this case involves successive and not dual representation, appellant must

demonstrate he was prejudiced by any potential conflict of interest.”

Commonwealth v. Cousar, 154 A.3d 287, 310–11 (Pa. 2017). “Appellant

avers that [t]rial [c]ounsel might have represented him more effectively had

he not already had the opportunity to form an opinion about Appellant when

he questioned him as a witness in a separate trial.” Appellant’s Brief at 14.

However, Appellant fails to explain how trial counsel could have represented

him more effectively, and all of the claims of ineffectiveness that we reviewed

above were meritless. We therefore find that Appellant has failed to

demonstrate that he was prejudiced by any potential conflict of interest, and

this final issue merits no relief.

      For the reasons given above, we conclude that Appellant’s issues raised

on appeal are waived or meritless. Having discerned no error of law, we affirm

the order below. See Medina, 209 A.3d at 996.

      Order affirmed.

      Judge Murray joins the Memorandum.

      Judge Olson Concurs in the Result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/23/2020




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