J-S26028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 KENDRICK COOPER                         :
                                         :
                   Appellant             :   No. 1885 EDA 2017

                  Appeal from the PCRA Order May 25, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0013617-2010

BEFORE:    BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

MEMORANDUM BY BOWES, J.:                                  Filed July 20, 2018

      Kendrick Cooper appeals pro se from the order dismissing his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

      Reginald Kinley and Dana Blaylock, both of whom were involved in illicit

drug sales and knew Appellant, met at the intersection of 38th and Brandywine

Streets in Philadelphia on February 24, 2009, so Mr. Blaylock could give Mr.

Kinley a ride home. Appellant, with a firearm drawn and drug dealer Maurice

McIntosh standing behind him, rapped on the window of Mr. Blaylock’s car.

Appellant tried to pull Mr. Blaylock from the car, while Mr. Kinley exited the

vehicle and took cover in nearby bushes. Mr. Blaylock was able to escape,

but Appellant caught up with him and shot him multiple times in the torso.

Kevin Twyne witnessed the incident from his nearby second-floor apartment.

Mr. Blaylock’s body was discovered by police and transported to the hospital,

where he was pronounced dead on arrival.
____________________________________
* Former Justice specially assigned to the Superior Court.
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      In 2011, Appellant was sentenced to life imprisonment after a jury

convicted him of first-degree murder.        This Court affirmed Appellant’s

judgment of sentence and our Supreme Court denied his petition for allowance

of appeal.   Commonwealth v. Cooper, 82 A.3d 1082 (Pa.Super. 2013)

(unpublished memorandum), appeal denied, 84 A.3d 1062 (Pa. 2014).

      Appellant filed a timely pro se PCRA petition in June 2014. No action

was taken on the petition for more than a year. Appellant, still proceeding

pro se, filed supplements to his petition in September, November, and

December 2015. In September 2016, counsel, who apparently was appointed

at some point by means not reflected on the docket, entered an appearance

on behalf of Appellant.

      On December 4, 2016, counsel filed a petition to withdraw and a no-

merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en

banc). Appellant filed a pro se response. The PCRA court issued notice of its

intent to dismiss Appellant’s petition in March 2017, and Appellant timely filed

pro se objections. The PCRA court dismissed Appellant’s petition by order of

May 25, 2017.     Appellant filed a timely pro se notice of appeal, and both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following questions for our review.

      1)     Was Appellant denied due process of law by ineffective
             assistance of [trial] counsel?




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      2)    Was Appellant denied due process of law by the ineffective
            assistance of appellate counsel?

      3)    Was Appellant wrongfully convicted of crimes he is actually
            innocent of in violation of his [Fifth, Sixth, and Fourteenth
            Amendment] right[s]?

Appellant’s brief at 5 (some capitalization altered).

      “Our standard of review for issues arising from the denial of PCRA relief

is well-settled.   We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.”        Commonwealth v.

Johnson, 179 A.3d 1153, 1156 (Pa.Super. 2018) (internal quotation marks

omitted).

      Regarding Appellant’s claims that he received ineffective assistance of

counsel, the following principles guide our review.

             Counsel is presumed effective, and an appellant has the
      burden of proving otherwise. In order for Appellant to prevail on
      a claim of ineffective assistance of counsel, he must show, by a
      preponderance of the evidence, ineffective assistance of counsel
      which so undermined the truth-determining process that no
      reliable adjudication of guilt or innocence could have taken place.

            To prevail on his ineffectiveness claims, Appellant
            must plead and prove by a preponderance of the
            evidence that: (1) the underlying legal claim has
            arguable merit; (2) counsel had no reasonable basis
            for his action or inaction; and (3) Appellant suffered
            prejudice because of counsel’s action or inaction.
            With regard to the [reasonable basis] prong, we will
            conclude that counsel’s chosen strategy lacked a
            reasonable basis only if Appellant proves that an
            alternative not chosen offered a potential for success
            substantially greater than the course actually
            pursued.      To establish the [prejudice] prong,
            Appellant must show that there is a reasonable
            probability that the outcome of the proceedings would

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            have been different but for counsel’s action or
            inaction.

Commonwealth v. Brown, 161 A.3d 960, 965 (Pa.Super. 2017) (citations

and quotation marks omitted).

      With Appellant’s first question on appeal, he raises various complaints

about trial counsel’s preparedness. Appellant claims that his trial counsel was

ineffective in failing to review the statements given by Kevin Twyne, the man

who witnessed the shooting from his window. Appellant maintains that Mr.

Twyne’s statement was the result of police coercion. Appellant’s brief at 20-

21.

      The PCRA court addressed Appellant’s claim as follows.

            Initially, [Appellant’s] claim fails as “it is settled law that [a
      defendant] lacks standing to assert the alleged deprivation of
      another’s constitutional rights.” Commonwealth v. Brown, 342
      A.2d 84, 91 (Pa. 1979) (quoting Commonwealth v. Butler, 291
      A.2d 89, 90 (Pa. 1972)). Accordingly, counsel would have had no
      grounds to seek the suppression of [Mr.] Twyne’s statement to
      police.

             [Appellant’s] underlying claim is also without merit because
      [he] fails to proffer any evidence that shows [Mr.] Twyne’s
      statement actually was the result of coercion. While [Mr.] Twyne
      testified that he was present at the Homicide Division for
      approximately two days before he gave his statement to police,
      [he] testified that he did not feel pressured to provide the
      statement, and that he did not feel like he would never leave
      unless he told police something. [Appellant] has failed to proffer
      any evidence that would show that [Mr.] Twyne’s statement was
      not freely made. Accordingly, [Appellant’s] underlying claim is
      without merit.

            [Appellant] claims that trial counsel failed to properly
      investigate [Mr.] Twyne and have [his] testimony suppressed on
      the basis that [he] could not have seen the shooting and because

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      of contradictory facts contained in [his] statement. Specifically,
      [Appellant] argues that [Mr.] Twyne could not have seen and
      heard the shooting through a sealed, covered window while his
      television was on and with only one good eye, and that [he]
      contradicted other evidence regarding the description of the
      getaway car, the gun, the number of people in the car, and the
      description of the shooter.       However, contradictions in the
      evidence provide no grounds for the suppression of [Mr.] Twyne’s
      testimony. Rather, these contradictions go to the weight that the
      jury was free to give [his] testimony.

            Moreover, counsel cross-examined [Mr.] Twyne concerning
      his ability to observe the shooting through his covered windows
      while the television was on, and so the jury was aware of the
      conditions under which [Mr.] Twyne made his observations.
      Accordingly, trial counsel was not ineffective for failing to properly
      investigate and suppress [Mr.] Twyne’s testimony.

PCRA Court Opinion, 8/8/17, at 5-6 (some citations omitted).

      The PCRA court’s findings are supported by the record, and we discern

no error of law or abuse of discretion. Accordingly, Appellant has failed to

convince us that the PCRA court erred in dismissing his claim regarding Mr.

Twyne. Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012) (“It

is an appellant’s burden to persuade us that the PCRA court erred and that

relief is due.”).

      Appellant next faults trial counsel’s failure to interview Andre Blaylock

(“Andre”), who was the brother of the victim, and Aisha Gardner, the victim’s

girlfriend. Appellant notes that the police statement given by Andre supports

his theory that the victim, a drug gang leader, was assassinated by a rival

gang with Mr. Kinley’s complicity, since Mr. Kinley was in position to help fill

the vacuum left by the victim’s death.      Appellant’s brief at 21.    Appellant


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contends that the police statement of Ms. Gardner reveals that she had

information to impeach Mr. Kinley’s testimony. Appellant’s brief at 19-20.

      When raising a claim that counsel was ineffective in failing to call a

witness, a PCRA petitioner must show all of the following:

      (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. Johnson, 966 A.2d 523, 536 (Pa. 2009) (quoting

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

Appellant merely relies upon the police statements, and offers noting to show

that Andre or Ms. Gardner was available or willing to testify on his behalf at

trial. See Commonwealth v. Bryant, 855 A.2d 726, 748 (Pa. 2004) (holding

petitioner failed to demonstrate that counsel was ineffective in failing to call

at second trial witnesses who testified at his first trial, where he “made no

proffer as to whether these witnesses were willing and able to testify at [his]

second trial, much less that they would stick to their stories) .

      Even if these witnesses were ready and willing to testify on Appellant’s

behalf, and testified consistent with their police statements, Appellant has not

shown that the absence of their testimony was so prejudicial as to deny him

a fair trial. The PCRA court explained that Andre’s statement actually confirms

that Mr. Kinley identified Appellant as the shooter, and thus would have

bolstered, rather than impeached, Mr. Kinley’s trial testimony. PCRA Court

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Opinion, 8/8/17, at 8. Further, the court determined that it is unlikely that

evidence that Mr. Kinley told Andre that Appellant was wearing a red hoodie,

while he testified at trial that it was a black shirt “would have undermined

Kinley’s identification of [Appellant] as the shooter.” Id.

      A review of Ms. Gardner’s police statement reveals that it does not

support   Appellant’s   contentions   that     Mr.   Blaylock   never   provided

transportation to Mr. Kinley, or that Ms. Gardner witnessed Mr. Kinley

repeatedly calling   to “entice the victim to come out of the building” upon

different pretenses. Appellant’s brief at 20. On the contrary, Ms. Gardner

indicated in her statement that Mr. Blaylock always drove Mr. Kinley around.

Supplemental PCRA Petition, 9/1/15, at Appendix 7.         Further, there is no

indication that Ms. Gardner had information that Mr. Kinley twice called the

victim in attempts to lure him outside. As Mr. Blaylock was already on the

phone when he walked into the apartment, Ms. Gardner did not know who

called whom. Id.

      Accordingly, we see no error in the PCRA court’s determination that

Appellant’s claims regarding Andre and Ms. Gardner lack merit. See Bryant,

supra (holding no prejudice resulted from failure to call witnesses who

testified at earlier proceeding because, even if witnesses were willing to

cooperate, their testimony was not helpful).

      Appellant also contends on appeal that trial counsel was ineffective in

not raising an objection pursuant to Brady v. Maryland, 373 U.S. 83 (1963),


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to the Commonwealth’s failure to turn over evidence collected during the

police investigation, in particular the information obtained from search

warrants for various cellular phones. Appellant’s brief at 17.

      Appellant did not raise any claim related to missing phone records in his

PCRA petition or any of the supplements thereto. Nor did he state such a

claim in response to PCRA counsel’s Turner/Finley letter or the PCRA court’s

notice of intent to dismiss. This Court will not consider PCRA claims raised for

the first time on appeal. See, e.g., Commonwealth v. Santiago, 855 A.2d

682, 691 (Pa. 2004) (“[A] claim not raised in a PCRA petition cannot be raised

for the first time on appeal.”).

      Appellant next raises issues regarding the performance of his direct

appeal counsel. He first asserts that appellate counsel was ineffective in not

challenging the sufficiency of the evidence.         Appellant’s brief at 25.

Particularly, Appellant asserts that counsel should have contended that the

Commonwealth offered neither evidence that Appellant had any motive for

killing Mr. Blaylock nor a witness to establish that Appellant was the shooter.

Id. at 26. He also raises the issue of appellate counsel’s failure to argue that

the trial court erred in suggesting that the Commonwealth request a jury

charge concerning accomplice liability. Id.

      Direct appeal counsel did raise the very arguments Appellant presents

in this appeal. Cooper, supra (unpublished memorandum at 5). This Court




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rejected them.1 Id. (unpublished memorandum at 6-11) (holding that it was

reasonable for the jury to find that Appellant was the person who shot the

victim given the testimony of Mr. Kinley and Mr. Twyne; that motive was

established by Mr. Kinley’s testifimony that Appellant and the victim had

argued over money a few weeks before the shooting,2 and intent to kill was

shown by Appellant’s use of a deadly weapon on a vital part of the victim’s

body; and that, even if the trial court erred in sua sponte suggesting an

accomplice-liability jury instruction, it was harmless).

       Appellant has pointed to no deficiencies in the manner in which direct

appeal counsel litigated these claims, nor cited additional authority that was

likely to garner a more favorable result.        Appellant has not shown that he



____________________________________________


1 At first blush it appears that PCRA relief is unavailable on these claims
because they were previously litigated.            See 42 Pa.C.S. § 9543(a)(3)
(providing that, to be eligible for relief, a petitioner must plead and prove that
“the allegation of error has not been previously litigated or waived”).
However, our Supreme Court has explained that

       collateral claims of trial counsel ineffectiveness deriving from an
       underlying claim of error that was litigated on direct appeal cannot
       automatically be dismissed as “previously litigated.” Rather, Sixth
       Amendment claims challenging counsel’s conduct . . . are
       analytically distinct from the foregone claim of trial court error
       from which they often derive, and must be analyzed as such.

Commonwealth v. Puksar, 951 A.2d 267, 274 (Pa. 2008).

2 Moreover, we note that “[i]t is well established that the Commonwealth is
not required, as a matter of law, to prove the accused’s motive even where
the offense charged is murder in the first degree.” Commonwealth v.
Briggs, 12 A.3d 291, 340 n.44 (Pa. 2011).

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suffered any prejudice as a result of appellate counsel’s performance, and no

relief is due. See Commonwealth v. Hanible, 30 A.3d 426, 443 (Pa. 2011)

(holding that the petitioner failed to overcome the presumption that counsel

performed effectively in challenging the conviction on direct appeal where the

petitioner (1) offered no persuasive authority to establish that counsel acted

unreasonably in emphasizing the unreliability of the evidence, and (2) did not

demonstrate that there was a reasonable probability that a challenge based

instead on due process grounds would have been successful).

      With his final argument, Appellant maintains that he is innocent of the

crime, and that he was wrongfully convicted as the result of the cumulative

effect of counsel’s ineffectiveness. Appellant’s brief at 27. The PCRA court

opined that this claim merely restates the claims already discussed above,

and is thus meritless for the reasons discussed supra. PCRA Court Opinion,

8/8/17, at 14. It further concluded that, “[t]o the extent that [Appellant]

seeks to argue some other claim, his claim is waived for vagueness.” Id.

      We agree with the PCRA court. Appellant in his brief does not support

this issue with any contention that we have not already found lacking in merit.

He merely reiterates his arguments that the witnesses who testified against

him were subjected to lengthy interrogations, that the descriptions of the

shooter offered by the witnesses were inconsistent, and that there were Brady

violations that counsel failed to correct. Appellant’s brief at 27. Nor does

Appellant offer any authority to suggest that the cumulative effect of the


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independently-meritless issues warrants relief. Therefore, Appellant has failed

to convince us that his final claim warrants relief. See Miner, supra.

      For the foregoing reasons, we conclude that the PCRA court properly

entered its order dismissing Appellant’s PCRA petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2018




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