J-S84038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

CHRISTOPHER FLOURNEY

                             Appellant                 No. 253 EDA 2016


                  Appeal from the PCRA Order January 7, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                                   at No(s):
                            CP-51-CR-0004163-2008
                            CP-51-CR-0004164-2008

BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 22, 2017

        Appellant, Christopher Flourney, appeals from an order dismissing his

first petition for relief under the Post Conviction Relief Act 1 (“PCRA”) without

a hearing. Appellant argues that trial counsel was ineffective for failing to

contact and interview an eyewitness to his gunfight with two police officers

and for failing to object to the introduction of a statement by his non-

testifying co-defendant during trial in violation of his rights under the

Confrontation Clause. We affirm.

        The trial court’s opinion on direct appeal accurately summarizes the

evidence adduced during trial as follows:



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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           On November 10, 2007, Officer Hagan and his partner
       Officer Corcoran were in uniform and in their marked
       patrol car. The [o]fficers were assigned to patrol the area
       around 25th to 29th Streets between Oakford and
       Dickinson Streets in South Philadelphia as there had been
       a shooting in that area earlier in the day. While driving
       eastward on the 2900 block of Dickinson Street, Officers
       Hagan and Corcoran heard gunshots and saw muzzle
       flashes coming from both sides of 28th Street to their
       north. The officers activated their lights and sirens and
       drove toward the direction of the gunshots.

           While the officers were driving north on 28th Street
       they heard more gunshots and saw two muzzle flashes
       from two males on the east side of the street. Both males
       were facing in the direction of the officers’ patrol car at the
       time of the muzzle flashes, indicating that guns were being
       fired at the officers. An inspection of the patrol car after
       the gunfire ended showed that a bullet had struck the
       windshield at “head-level.” The officers pursued the two
       males who had shot at them and who ran north on 28th
       Street. Each male was wearing a black hooded sweatshirt
       with a pocket in the front. Three males who were on the
       west side of the street ran away.

           The officers were able [to] see the two males who shot
       at their patrol car more clearly when they ran in a well-lit
       area at the intersection of 28th and Reed Streets. Both
       officers recognized one of the males as [Appellant], who
       they both knew prior to this incident. [Appellant] was
       holding a handgun as he was running away. As the
       officers attempted to cut [Appellant] off as he approached
       Earp Street, [Appellant] went over the hood of the patrol
       car, pointed a gun at the officers, and continued running
       north on 28th Street. At the same time, the other male,
       who was subsequently identified as co-defendant Lashawn
       Reaves, ran east on Earp Street. After Reaves appeared to
       point a gun at them, the officers fired at Reaves, who was
       hit once in the leg. As Officer Corcoran went to secure
       Reaves, Officer Hagan left to pursue [Appellant] and sent
       out a flash description.

          About twelve minutes later, another officer stated over
       the radio that she had seen [Appellant] look out of the


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           window of a house on Sears Street. Officer Albertus and
           his partner responded to this call by going to the house at
           2754 Sears Street, where they ordered everyone out of
           the house. Officer Hagan arrived and identified one of the
           individuals taken out of the house as [Appellant], who was
           no longer wearing a black hooded sweatshirt.          After
           obtaining a search warrant for the house, Detective Blowes
           found a handgun hidden under some dirty underwear
           inside a hole in the wall on the second floor. Detectives
           Blowes turned the gun over to the Crime Scene Unit for
           testing. Detective Blowes also took from this house a
           black hooded sweatshirt that was also found on the second
           floor.

               Officer Edward Nelson of the Firearms Identification Unit
           inspected the gun found hidden in the wall of 2754 Sears
           Street and determined it to be an operable nine-millimeter
           Ruger handgun with a four-inch barrel. He also inspected
           sixteen fired cartridge casings that had been found in the
           area on 28th Street from where the males had been seen
           firing at the officers. Sixteen of the casings were fired
           from the nine-millimeter Ruger that was recovered from
           inside the wall in the house where [Appellant] was hiding.

Trial Ct. Op., 1/19/10, at 2-4 (record citations omitted).

        Appellant and Reaves were tried together.     The jury found Appellant

guilty of attempted murder,2 aggravated assault,3 criminal conspiracy,4

carrying a firearm without a license,5 possessing an instrument of crime,6


2
    18 Pa.C.S. § 901(a).
3
    18 Pa.C.S. § 2702(a).
4
    18 Pa.C.S. § 903(a).
5
    18 Pa.C.S. § 6106(a)(1).
6
    18 Pa.C.S. § 907(a).




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and carrying a firearm on a public street in Philadelphia.7 On July 23, 2009,

the trial court imposed an aggregate sentence of twenty-five to fifty years’

imprisonment.     Appellant filed timely post-sentence motions.    On October

19, 2009, the Court granted Appellant’s motion for a judgment of acquittal

concerning his conviction for carrying a firearm without a license.8

        On August 13, 2010, this Court affirmed Appellant’s judgment of

sentence, and on February 3, 2011, our Supreme Court denied Appellant’s

petition for allowance of appeal. Commonwealth v. Flourney, 3086 EDA

2009 (Pa. Super. Aug. 13, 2010), appeal denied, 476 EAL 2010 (Feb. 3,

2011). On December 7, 2011, Appellant timely filed a PCRA petition pro se.

On February 19, 2015, through counsel, Appellant filed an amended PCRA

petition. On November 3, 2015, the PCRA court issued a notice of intent to

dismiss Appellant’s amended petition without a hearing.        On January 7,

2016, the PCRA court entered an order dismissing Appellant’s PCRA petition.

Appellant filed a timely appeal to this Court, and both Appellant and the

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

        Appellant raises two issues in this appeal:


7
    18 Pa.C.S. § 6108.
8
  The trial court premised its judgment of acquittal on the “absence of
evidence that the handgun possessed by [Appellant] had been concealed or
carried in a vehicle.” Trial Ct. Op., at 1 n.1. This did not affect Appellant’s
sentence, because he had been sentenced to no further penalty on this
charge. Id.




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           I. Whether the [PCRA] court erred in denying the
           Appellant’s PCRA petition without an evidentiary hearing
           on the issues raised in the amended PCRA petition
           regarding trial counsel’s ineffectiveness.

           II. Whether the [PCRA] court erred in not granting relief on
           the PCRA petition alleging counsel was ineffective.

Appellant’s Brief at 9.       Appellant argues that: (1) trial counsel was

ineffective for failing to contact and interview Ellen Banning, an eyewitness

to the gunfight, (2) trial counsel was ineffective for failing to object to the

introduction of a statement by his non-testifying co-defendant during trial,

thus violating Appellant’s rights under the Confrontation Clause, and (3) he

was entitled to an evidentiary hearing on these ineffectiveness claims.9

        “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu–

Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted). When a PCRA

petitioner alleges ineffective assistance of counsel, counsel is presumed to

have provided effective representation unless the 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 (3) the petitioner was

prejudiced by counsel’s action or omission. See Commonwealth v. Spotz,

84 A.3d 294, 311 (Pa. 2014). “In order to meet the prejudice prong of the

ineffectiveness standard, a defendant must show that there is a reasonable

9
    We have reordered Appellant’s arguments for disposition.



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probability that but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Commonwealth v. Reed, 42 A.3d

314, 319 (Pa. Super. 2012) (citation and quotation marks omitted), appeal

denied, 114 A.3d 416 (Pa. 2015).         A claim of ineffective assistance of

counsel will fail if the petitioner does not meet any of the three prongs. See

Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). “The burden

of proving ineffectiveness rests with [a]ppellant.”

      In his first argument, Appellant contends that Banning gave a

statement to police officers10 that exculpated Appellant, but defense counsel

failed to interview Banning or call her as a witness. A review of Banning’s

alleged statement, which is unsigned, indicates that she saw only one

shooter, Amended PCRA Pet., 2/19/15, Ex. B, whereas the police officers

testified that there were two shooters.      N.T., 6/2/09, at 14-15, 67, 88.

Banning stated that the shooter “wasn’t too big, not tall, he was stocky, and

may have been dark comple[cted].” Amended PCRA Pet., Ex. B. Appellant

claims that he was “nearly 312 pounds, light skin[ned], 5’8” and far from

stocky” on the night of the incident. Appellant’s Brief at 19. Banning stated

that the shooter was wearing a coat with a hood that she thought was gray

in color and turned on Reed Street when fleeing the officers. Amended PCRA

Pet., Ex. B.   The officers testified that both shooters were wearing black

10
   Attached as exhibit B to Appellant’s amended PCRA petition is an unsigned
statement that Banning allegedly gave to the police on the night of the
incident.



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hooded sweatshirts, and that Appellant ran straight down 28th Street. N.T.,

6/2/09, at 18-20, 23-24.      Banning stated that the patrol car’s overhead

lights were off during the gun battle.      Amended PCRA Pet., Ex. B.         The

officers testified that the overhead lights were on. N.T., 6/2/09, at 14, 67.

Collectively, Appellant concludes, these discrepancies cast doubt on the

Commonwealth’s version of events and made Banning an essential witness.

No relief is due.

      Our Supreme Court has held: “Where a defendant claims that counsel

was ineffective for failing to call a particular witness, we require proof of that

witness's availability to testify, as well an adequate assertion that the

substance of the purported testimony would make a difference in the case.”

Commonwealth v. Clark, 961 A.2d 80, 90 (Pa. 2008).                The defendant

must demonstrate 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.

Id. (citations omitted).    Here, Appellant failed to certify in his amended

PCRA petition, and failed to argue in his appellate brief, that Banning was

available and willing to testify on his behalf. This alone justified the PCRA

court’s decision to deny PCRA relief without an evidentiary hearing.         See

Commonwealth v. Brown, 161 A.3d 960, 967 (Pa. Super. 2017) (PCRA

court could properly dismissed claim of failing to call alleged witnesses


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without evidentiary hearing where petitioner failed to provide PCRA court

with affidavits or certifications indicating, inter alia, witnesses’ availability

and willingness to testify on appellant’s behalf).

      In his second argument, Appellant contends that trial counsel was

ineffective for failing to object to the admission of a statement by Reaves to

a police detective that was redacted with neutral terms such as “the other

guy” or “him” substituted for Appellant’s name.         Appellant argues that

although his name was replaced with neutral terms such as the “other guy,”

Reaves’ statement “clearly identified Appellant, [because] Reaves denied

being in the actual area [of the gunfight], and Appellant . . . and . . . Reaves

were the only two on trial for the incident in question.” Appellant’s Brief at

22. Further, Appellant argues that defense counsel was ineffective for failing

to request that the court give a limiting instruction directing the jury to use

the statement only as evidence against Reaves but not against Appellant.

Id. at 21. We disagree.

      The PCRA court correctly summarized the relevant law as follows:

            Under Bruton v. United States, 391 U.S. [1]23
         (1968), the confession of a co-defendant that incriminates
         another defendant at a joint trial may not be admitted as
         evidence unless the codefendant who made the statement
         takes the stand and is subject to cross-examination.
         Otherwise, the Sixth Amendment right to confrontation of
         the defendant who did not make the statement would be
         violated. However, the Confrontation Clause is satisfied if
         the confession is redacted in such a manner as to remove
         facially incriminating references to the other defendant and
         the jury is given an appropriate instruction to only consider
         the statement as evidence against the defendant who


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         made it. Commonwealth v. Daniels, 104 A.3d 267, 294
         (Pa. 2014).     Contextual implication will not violate a
         defendant’s rights. So long as neutral pronouns such as
         “the other guy” or “him” are substituted for the name of
         the other defendant, and the jury is given an appropriate
         limiting instruction, Bruton is satisfied. Daniels, 104
         A.3d at 294.

PCRA Ct. Op., at 7-8.

      Here, the Commonwealth introduced Reaves’ statement, which was

edited in accordance with Bruton to refer to Appellant as “the other guy” or

“him.” N.T., 6/3/09, 77-87. Thus, trial counsel had no basis to object to the

admission of the edited statement.

      We note, as did the PCRA court, that defense counsel failed to request

a limiting instruction directing the jury that it could only consider the

statement as evidence against Reaves. Nevertheless, assuming that defense

counsel was ineffective for failing to request this instruction, Appellant did

not suffer prejudice.    The PCRA court aptly observed that the evidence

against Appellant was overwhelming, because after multiple gunshots were

fired at the officers,

         [t]he officers saw [Appellant] with a firearm as they were
         pursing him, and found a firearm in a hole in the wall in
         the house into which [Appellant] fled after the incident.
         Ballistics matched that firearm to all [sixteen] fired
         cartridge casings found at the scene of the shooting. The
         black hooded sweatshirt that Officer Hagan saw
         [Appellant] wearing during the incident was also found in
         the same house. Both Officer Hagan and Officer Corcoran




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         knew [Appellant] from previous encounters and recognized
         him both during the pursuit and after his arrest.11

PCRA Ct. Op. at 6.     Given this evidence, the lack of a limiting instruction

plainly did not affect the outcome of trial.         See Commonwealth v.

Hutchinson, 25 A.3d 277, 305-06 (Pa. 2011) (petitioner was not prejudiced

by trial counsel’s failure to request limiting instruction as to permissible use

of prior bad act evidence that murder victim had requested protection from

abuse order against defendant and that defendant used aliases, where there

was overwhelming evidence of defendant’s guilt, including eyewitness

testimony of victim’s two children, both of whom knew defendant).

      Lastly, Appellant argues that he was entitled to an evidentiary hearing

regarding the foregoing claims. However,

         [t]he right to an evidentiary hearing on a post-conviction
         petition is not absolute. It is within the PCRA court’s
         discretion to decline to hold a hearing if the petitioner's
         claim is patently frivolous and has no support either in the
         record or other evidence. It is the responsibility of the
         reviewing court on appeal to examine each issue raised in
         the PCRA petition in light of the record certified before it in
         order to determine if the PCRA court erred in its
         determination that there were no genuine issues of
         material fact in controversy and in denying relief without
         conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations

omitted).   Having reviewed Appellant’s claims in light of the record, we


11
    We cannot take the statement of Banning, the alleged eyewitness, into
account, since she did not testify at trial, and, as discussed above, Appellant
failed to certify or aver that she was willing and able to testify on his behalf.



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discern no abuse of discretion in the PCRA court’s decision to dismiss

Appellant’s amended PCRA petition without a hearing.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2017




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