J-S48020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                             Appellee

                        v.

SADE O. STEWART

                             Appellant                      No. 27 MDA 2014


                Appeal from the PCRA Order December 4, 2013
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0005499-2009


BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                               FILED AUGUST 06, 2014



4, 2013, by the Honorable John F. Cherry, Court of Common Pleas of



                                    1
                                        After careful review, we affirm.

        Following a jury trial, Appellant was convicted of attempted murder,2

aggravated assault3 (two counts), persons not to possess firearms,4 and

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. § 9541, et seq.
2
    18 Pa.C.S. § 901.
3
    18 Pa.C.S. § 2702.
4
    18 Pa.C.S. § 6105.
(Footnote Continued Next Page)
J-S48020-14



simple assault.5 On December 15, 2010, the trial court sentenced Appellant

to an aggregate term of 10 to 20 years of imprisonment. On direct appeal,

                                                                See Commonwealth

v. Stewart,      51     MDA     2011     (Pa.Super.,   filed   September   20,   2011)

(unpublished memorandum).

        On October 24, 2012, Appellant filed a pro se PCRA petition.

Thereafter, the PCRA court appointed counsel who filed an amended PCRA

petition on January 28, 2013. The PCRA court conducted a hearing on July

23, 2013, and denied the petition on December 4, 2013. This timely appeal

followed.

        On appeal, Appellant argues that trial counsel was ineffective for

failing to call certain individuals to testify at trial. See

8-11. In reviewing an order denying PCRA relief, our well-settled standard



supported by the evidence of record and is free of legal error.             The PCRA

          findings will not be disturbed unless there is no support for the

                                         Commonwealth v. Barndt, 74 A.3d 185,

191-192 (Pa.Super.2013) (internal quotations and citations omitted).




                       _______________________
(Footnote Continued)


5
    18 Pa.C.S. § 2701.



                                            -2-
J-S48020-14



       This Court follows the Pierce6 test adopted by our Supreme Court to

review PCRA claims of ineffective assistance of counsel:


       PCRA petition, he must prove by a preponderance of the
       evidence that his conviction or sentence resulted from ineffective
       assistance of counsel which, in the circumstances of the
       particular case, so undermined the truth-determining process
       that no reliable adjudication of guilt or innocence could have
       taken place. We have interpreted this provision in the PCRA to
       mean that the petitioner must show: (1) that his claim of

       reasonable strategic basis for his action or inaction; and (3) that
       the error of counsel prejudiced the petitioner-i.e., that there is a
       reasonable probability that, but for the error of counsel, the
       outcome of the proceeding would have been different. We
       presume that counsel is effective, and it is the burden of
       Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).             The petitioner bears the burden of

proving all three prongs of this test.         Commonwealth v. Meadows, 787

A.2d 312, 319-

preponderance of the evidence any of the Pierce prongs, the Court need not

                                                   Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).

       [I]n the particular context of the alleged failure to call witnesses,
       counsel will not be deemed ineffective unless the PCRA petitioner
       demonstrates: (1) the witness existed; (2) the witness was
       available; (3) counsel knew of, or should have known of the
       existence of the witness; (4) the witness was willing to testify for
____________________________________________


6
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



                                           -3-
J-S48020-14


     the defense; and (5) the absence of the testimony was so
     prejudicial to petitioner to have denied him or her a fair trial.

Commonwealth v. Miner, 44 A.3d 684, 687 (Pa.Super.2012).

     We have examined the certified record, the briefs of the parties, and

the applicable law.       Additionally



the October 15, 2013 Notice of Intent to Dismiss and Memorandum Opinion

                                                                         nd

which it incorporates, both of which address the issues raised and argued by



thorough and well-reasoned 1925(a) Opinion and Notice of Intent to Dismiss

accurately dispose of the issues Appellant raises on appeal. Accordingly, we



petition on that basis. See 1925(a) Opinion.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/2014




                                         -4-
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     COMMONWEALTH OF PENNSYLVANIA                         ; IN ME COURT OP COMNIGN PLEAS
                                                            DAUPHiN COUNTY,PENNSYLVANIA


                            vs,                               J. 5499 CR 2009


    SADE 0.S 'WART                                         POST CONVICTION. RELIEF ACT

                       TRIAL COOrTiMEMORAND UM OPINION.PURSVANT
                     pEiNWyV....ANI.A RULE.OF APPELLATE.PROCIF,DURE

               Priently before the Srov Court.of Pennsylvania 14.the appat fSade O.Stewart

    (Appellant) from this Court's December 4,"2013 Order vein. we diSrnissed Appellaorl

    Petition for Relief Pursuant to the Post Conviction Relief Act (PCRA),42 Pa,C,S, $495              set.1


                                              Procedural History

               AppellOVAs charged wit onc count of crinftnai aitempt, two cutup Ofaggravated

•   assault, one count ofpeoun ttetlopmess a lir4trolik3 and one cairn of impleagsautt:/

    Appellant was tried before ajliry of her peers begirmirte. on October 25. 2010. On Otgobcr 28,

    20i 0, the jury turned a. verilit.1• of gt,Ulty on ail counts Following pr     nten    [tv *lotion

    thlŠ Coart sentenced Appellant on Detoriber I:5, 2010 as folipos;


                     CPunt 1 —    Crinnnat Vempt murder: Ten GO) to Twenty {20) year- in a   6
                                  state. i.lorrectional insthution, rifle. Of$1,00.00 and the oxisB
                                  of,tbe proceedings;

                     Coca -2 — A2gravate1 assault: TWO (2) to Four VI) •years in a statt
                               corRictional institution. a ime of $500.00 plus costs tpf
                               proceedings' to run etmourrent with'Count 1;

                     Count -      Aggravated assault: Merged with Count 1,



        N,C,5, 2702
     ka p.i   §y5U}.5
    4 kg Pat     § 110
                                                                                                         Circulated 07/24/2014 03:54 PM




                      Count 4 -     N.,rson nut (0 possesg a fiteorm: Four 0)to Eight (8) years in
                                    a statc correctionai instil:L.1110n_ -a íue of $5011.00 and costs ia
                                    the prociee.dings, elonettrrent With Count'

                      CoUrit -               aSsauli.: One (11 to Two (1: year§ in a state
                                                                        )
                                                                        1
                                    correctional institution and costs of •the proceedings,
                                    concurrent %lilt Count 1,

           AI.rit                      iro credit from (6/1"ay 1'4, 20 4:1vOecember .15., 2010, Appellant

 filed a• .post„t„-,:interict motion Oh December 21,20J a lindrthiotourt denied A ppellam's'motion on

 Detember :7. 20111. t:tri January 5, 2011. Appellant filed a Notice of Appeal throt)gh,ber

 appointed counsel, Wendy Gmlla, Esquire. Thi Court then ordered A.ppellant                                file a Concise'

 Statement of Error,-; Complained of on Appcal on January 5,2011_ Appe,Eltuit requested an

 extension to file her Statement of Errom. on January 18, 201) its which this COgit ranted

 Appellant:s
          .             :\13111s. 0t1 on January 19. 2011. Thereafter. Appellant tiinp1y 41ed lteT
                                )

Statement of Emirs an February 2.3, 201 t. This Court filed a Memorandum 0pinion Pur514311
                                                                          -

                  c.)25ta) cin fvfay 9, 201 1 The Superior Court of PenusYlvanis itifirrned this Courft

Pecmhe 15,2010judt!TricaL of sentence                       Aprfl )9. 201.2. Appellant stibsequently filed It

PCRA petitim, a Motion to Pmeced in:Forma PauperiS,41114000o.for Appointment of COLInSel

and a Pet Won for Nmeilng for Private. Invegator nn t)ptabc..,r 74,20 2,                       ïhs Court grE0e#
Appellant's MO:01110 Proceed in Forma Pauperis and also appointed Jennikee, Tobias,

Esquitv.    OTT   Oetober 31, 2012 to represent Apr011unt during post-conmtion review and ordered

                                      PCRA petition on Appellant's behalf within thirrY 0 )
that Attorney Tobia filo stipplemenial.                                                  0

days:of tbis ColurtIptghL s counsel_ Attorney Tobim.r.equested an vitension tO file 11.

supplemen 1 KRA peton to irvbiell /his CoUri qtanted her asitsty. 60).day onension
                                                                (

-1 Prior lo         Appeilant's attorney, Royc. Moms.. Esquirv,. rnadc a motion'tri liniint to 3evbr COUll 3 chit: to thu Viict
that entartru r, idt.trme that Appolhim had a criminal histori to 'support that chine would Itave, bean pm.ittdicial, Thins
                   ,
                   ,
Coun gratted 'Mar motion, and ppeilant plod guilty to that chnrEe Wire the lic)norahle Bruce.F Bratton tin March
'10, 201 1. Judge EAT-anon subsequently sentertted Aplielhint to erve four-to-oigl)t yir rJl l cAU. COrregli(n10.
4150i -1111On, 0;stre,urrant with Count i
                                                                                  Circulated 07/24/2014 03:54 PM




    vember 27;2012, .0n Januart20,2013; Artorney Tobias filed'a supplemental KRA petition

 on Appellant's: behalf Subsequently, this COurt ordered the corriniortwealth to ruspond

 App0.tintig npplometital KRA.petition within thirty (30) dgys ii january 3.20i          On Much

 1, 2013, the; Cornmonweald      hIltan          wer. On Mare119, 20)3, this Court filed a

 N1eniorandurn Opinion             rhduiiig           idenuary hearing fur Jur   7,2013, The

March 29, 2t)13 Order was,a iended on May .1:6; 2013 to permit Appellant to afl Sarnone

Stewarl      Jercl Stew    as WititeSse-s al the evidentiary heating. On June 3, 2013, Appellant

fikd Petition't4 Writ     or HabeAs Corpug. This Cow CM an Order on June 18, 2013 re-
;scheduling Theavidentiary hearing for.july 23, 2011 The transcript of those proccedino WaS
                                                                                          .

Produeed on Autzust 26,2033. The Cornminwealth fileclift Brierin Response(0 Appellarit

PC RA Petition on Sp:tcrrdr 20.201]. )n.Septet ber,23i 2013,•Appellant filo& kr Brief

Regarthng the Evidentiary Hewing Held Pursuant tO the PC RA. This Court tiled a

Memorandum Opinion and Notice of our Intent to Dismiss Appellant s Pet           n,on Ocgibet 15,

2013_ On.November 4,2013, Appellant f1ed a L3ekrin Respartse to at Proposed Dt$Misal of

Appellant' .PC Rik Petition. The CpramonwealthilledjtsRespernse to •Appellant
             :.                                                                         Win

Response to Propos.ed Dismistal ir Novoriber 27, 2013, Thereafter, thi$ Court di:mimed

Appellant's PCRA P.etition on Dec:ember 4, 2013. On December 31, 2Í 3Appeliirit filed,

'Not=or Appee 044.Supd.ridt-Court. Thm.Court entereclan Order( January 2,204

directing Appel ani ‘a file a Concise Statement of Errors pursuant ta Pt          192,5(b),

Appatit umeiv filed       Statement of Errors on January15,2014.


                    AppifliiIs St1meot.uf Nlatters•COmplaind of on Apia:

       inher sLai:1     t.ur1         Pri.M, A.P. 1925(h), Apjel1inta1e that trial counsel.     s

ineffutives for tailing In oil Witne„,sses oft Appellanes Exthalf   trial,
                                                                                         Circulated 07/24/2014 03:54 PM




                                           Factual Backgmund

          The facts                thi$ appeal h ve been discussed a( length in this Court'ilrial
                                      .

Court'Memorandum t)rinkikidated May'6,2011, which We. incorporate by reference.


                                                ti:Nett$si


                                    inder tbi PCi .a• pttorier nti:4.1.1                     flra

pre-p-6   derancotChe oodence. all of the folloWinu:

                 (1.) That the rie-titioncr has been co-avicted -of-a crirelt 1.1tr.-the YAWS-if
                  Cornmcinwealth anti is at the time re1ííis griinted:          cOrtently serving.3
                   crtice of imprisonment, probation or parole fcrir the crime . f.2.) that
                  the- corrkrietion or sentence rest ilied from ofic or rm.we of the foliwwing: (1)-
                  A violation or. th Constitution' of-this Comrnonealth or the Constitution
                                   .
                 or lzo,v5 ofthe United StateS which,in thr citcurnstances of the piirtioniar-
                 ea.5c, undennined the truth-deterrnioing process that no re-liable
                 adjudication of iiilt 1)t-:10110Ce31C. co al.,1 :nave taken place
                  assistance of coonsel•which, in the. cirntrnstarices.of the .particular cse,„-S(1,
                  undermined the .trrith-detrniining proc-VAS that np reliabitt Ojudication of
                  guilt or inniaCentie.couid .have taken plat.)e; Oil) A pica Ll Liìlt,
                  un1atušh indoced-'wliere the circtIrristances,:mak.c it likely that..thi.
                 inducerr=t-c4lused the petitfoner to ple4d:01:illy and the petner it
                 innocent; (ivfllie iniproper obstruction by gOvc'rriment officials of thc.
                  petitioner's right of appeal whereii neritorlottS- appealable issue exi5ted.
                 and WaN properly pre8dirVed iri the-trial court;.„.(vi).The imposition ,of a
                 sentence gi   -eater than thc iawfal -maximum;(vii) A proCeeding in a
                 tribunal without jurisdictior4(3)T:hat the allegaLion ZaCit W.not been
                 preouSly litigated or wanvect7, f.4).Tbat ih failure, to litivate the issue
                 prior to-or during trial, durine unitary review oi on direct 4ppCat E:041d.'nOt
                 :have been -the result of anv- ratiOnal„ strategiO or taci.i.w4 det"slim by




          In revkwing.telOmbriiieffectivenuss of counsel. we begin with the presumotion that

tHal counsel rendcred effective assistance, Commonwealth v.Sesko, 744 A., d'345,374

201 I ) Ïii iibtašu rtlief    tin inett tiye assistance 1ištn      petitioner must rebut that

presumption 1010.41.olp, %tate %hat counsel's performance was deficitmLi and that such
                                                                                        Circulated 07/24/2014 03:54 PM




 perrpraiwice prejudiced )nm. Strickland . Washington. 46-6 Li.S..668. 687.91( 984), lo
                                                                              -1

Pennsylvania. the deteemination pfineffective assistancv           coOnsei is a three-prong test

Specifically, a petitionct muSt show ;hall)the underlying claim iS-of arguable merit,(2)no

icuscmabit; thiSiS existed For counsel's action orii)action, ahd 13) murmurs Mir caused prajtidic

                ..i'easonahle probability that the•feSuit of-the proceeding wo
such that there s                                                                         have been

different ;Ibsen such error, Common`w...!alth      Pierce,527 A.2d 973, 975(Pa, 1987)% T

demoustrW. that ittlis was effective tbr failing k -ail a witiess, Petitioner must demonstrate

that (1) the witness exiŠtvd; L2) 1 b   witneEs voSs available   to testify for the d.efense          4e1


knew of, or $hould hove known of.. the e.,KistCTIti6 Of the witness: (4.0- rhe -%ritness was willing to

testily for(he defense; and (3) the absence of the testimony-ofthe lifitnest was so prejudicial Os

to havtf.clertigd the defendant kiWir trial. Commonwealth v„ WaShingtort, 92.7 A.,2d, M.599(Pa-,

2007),

         TWW: Court pruViOttSly dinliSSed, itS rationale   for disrnissihg Appethint'S PCRA petition in

our   October 15,'2013 Mptitetandurn Opthion and Notice of Intent to.J/Igniss. As Appellant

.alleves itk titml et,ror .in her Staternentof Erroni Complained ofon Appeal, this cnOtt Wi1.1
                                                                     :

.rtiscuss its reasoning' riar dismissing Appellant's PCRA petition.

         .Appellant alleges that trial Qounsei waS inefftalVd rO:r failing to    tfl   Wies,ses on

Appellants-behalf at trial, A PC RA hearing was field on My                   3• vhere Appellant_

Samone Stewart•(Appellatirs:Sister) and Jerel Stewart. wptuane4 Brother) testified-

         Appoliam *tifierilha :Oie spoke to Attorney Nlarrb           Iwo pecasions abouttaN          her

bitither and &sip!test             behalf, (Notes of Testimony, Ally 33,2013 at 4-6, 81....Appellarn

teAified that 'technically she.diti not spettic to her brother or sister about testifying, hut she did

tell them to caH      tawyet -tis;,1,,.at 6) APpenzut further inicated duit Jerei t'"-""'art ci pc'
                                  1         ,
                                                                                     Circulated 07/24/2014 03:54 PM




‘vitness any previous altercations                    iitand -the victim 'because he hittrbecn

inearcerated during.that time, NI„..at 7. 1 -12). Appellant:stated tha. Sarnotte SteWart..

witnessed an olterc,ation between A.ppellaiit and the victim sbortly before.the*cide.nt..(KT., at

7),

        SaniieStrt totingd that Àpiellarit neva asked kr to:testify At trial -and addeti :that

5.;he neva had 'arty contact with Acipeiiarit's.attOrrmy aboutiestifying. (N. at
                                                                             17,,        S*T1t hl:
                                                                                             )

Stewart indiealtd thatsk did observe tm altercatitm between _ppellant and the victim. but that

she wai tiot      icSs to die fficidein   r vhich Appeltant ',vas on trial   LT., ait17-18).

        lerei Stewart tesed that. becauSe he ',Nils intatectated and     rviig a life_ salter*,1*:

was not present    Appellant inul. (LN       at 21 ), Hit;also- testified that he never witnessed any

kind f altercationatietkvcen the vic iminn Appellant because he was incarcerated_ (14.1' 2)-

22),     rinally indicated that if he liad testi:kit* did not kno what he woulii htwe totified-pc/

since he never witnessed arty jocitiehts betwep the Appellant anathe -44101 (N:17 at 22):

        Royce Morris, Esoire, red as eotaUef ror Appellant- at trial, (14.17.,,Ail 2n AttorneY

Morrisiifd that he dIttnot teal Appellant ever speaking to him iibototwiritig Sammie

Ste.wonand Jerd'Stowart testify at tría (N:r, at 24). We Dot 1..hat AttomeY Morri g. testifiPti

that Lithe victirii had a history of being abusive to Appelipt, totx1d bole been relevant. (N

at 25). However, Attorney Morris added that the only reagon be did not present this infOrrnation

mos, bccatise   was Iai available to him and he Iiid not been p.r*lued WWI arkY history 0Eah:0,s ,

(KT,at.35,

        Siri Attorney -Morris was •never made aware of the inforniation regarding a history of

abigeiNhich Avrielhint alleged .that Samone Stewart 4nd Jarel Stewatt pOSSessed,there was no

taiSt31 fOr eounsti to ealliheivas laitnesses at trial, Additionally, ibis Court found the i6stimOrlY
                                                                                     Circulated 07/24/2014 03:54 PM




of Attorney Morris to be more credible than Appell*Vitestirhony. kret $iewart atimitWdthat

he never witnessed i‘ny iat.tbat;ry1                                                       ctim and,

that he di0 ri   ver knQw what:he would iave testiiied Id I vial: Sinct4 ierel Ste_wart was

ingartAble of providing any 01.vant testimony., Appellant was not prejudiced.

                 evidence included the testimony of several people Who whiles*:Appollant

hiffing the. bloody Vietilri with.a gun in her hand, pointing (tic,. gum at the         pulling the

%rigger; (Ndteg-of Testimony of JUry THAL at 158-59: 2654!70; 294-97t for these reasons,

ALPhIT           40 prove that the a:bsence ofLestirriory WL so preJudiciatth4t il denied ìert Fair

trial, Therefore, Appellant's-Oaks-I:bat Attormy. Morris ws ineffective for failing to tzitll

witnesSes a triai on .her belii4Ifis,Aritlot merit,

        Accordingly, We ask the• Superior Court;to             otk Decent:her 4,201, tiler and to:

.ckmiss the appeal in this maticT.



                                                         Rcrspectfully Submitted.




                                                                                        z=
                                                                                           -0     a
Distribution:                                                                           =c7
The Superior Court of Pennsylvania                                                         r-
Sade Stewart: OR-280 „ SC1 Muticy, 11.0, Box 1 BO. Muney,PA 1774
                                                               56
Jemir Tobias. Esquire,      P,O, Box 365, Siewartsto, PA 17363
Dauphin County Districi Aitorney'5 Office
V it:Apr Riley, Esquire. CoUrt Administration
Judg-2, Cherry
                                                                                  Circulated 07/24/2014 03:12 PM




COMMONWEALTH OF PENNSYLVANIA                        : IN THE COURT OF COMMON PLEAS
                                                    : DAUPHIN COUNTY,PENNSYLVANIA


                       VS                           : NO. 5499 CR 2009


SADE O. STEWART                                     : POST CONVICTION RELIEF ACT

                                              ORDER

                             ;
       AND NOW,this                 day of October, 2013, upon consideration ofPetitioner Sade

Stewart's Motion for Post Conviction Collateral Relief, the Commonwealth's Brief in Response

to Defendant's PCRA Petition and upon consideration ofthe relevant statutory and case law, this

Court finds that Petitioner Sade Stewart is not entitled to post conviction collateral relief.

Therefore, NOTICE IS HEREBY GIVEN of this Court's intention to DISMISS her Motion for

Post Conviction Collateral Relief. Petitioner is advised that she may respond to the proposed

dismissal within twenty(20)days of the date of this notice. IT IS FURTHER ORDERED that

Petitioner's Motion for Funding for a Private Investigator is DENIED.


                                                       BY THE COURT:




                                                                         udge
                                                                                                         -71(-1 cri
                                                                                                  -0

                                                                                                          --4
Distribution: (0-1-5-1          3' ,10
Jennifer E. Tobias, Esquire, P.O. Box 365, Stewartstown,PA 17363 k0     1
                                                                        4
Andrew J. Jarbola, Deputy District Attorney, Dauphin County District Attorney's Office           LO
Victor Riley, Esquire, Deputy Court Administrator :00
Clerk of Courts ( rikt-Q)
Judge Cherry


                                                   8
                                                                               Circulated 07/24/2014 03:12 PM




COMMONWEALTH OF PENNSYLVANIA                       : IN THE COURT OF COMMON PLEAS
                                                   : DAUPHIN COUNTY,PENNSYLVANIA

                                                   •
                        vs.     •                  : NO. 5499 CR 2009


SADE O. STEWART                                    : POST CONVICTION RELIEF ACT

                                    MEMORANDUM OPINION


        Presently before this Court is Sade O. Stewart's (Petitioner) Brief Regarding the

Evidentiary Hearing Held Pursuant to the Post Conviction Relief Act(PCRA)and the

Commonwealth's Brief in Response to Defendant's PCRA Petition.


                                         Procedural History

                 Petitioner was charged with one count of criminal attempt,1 two counts of

aggravated assault,2 one count of person not to possess a firearm,3 and one count of simple

assault.4 Petitioner was tried before ajury of her peers beginning on October 25, 2010. On

October 28, 2010, the jury retumed a verdict of guilty on all counts. Following a pre-sentence

investigation this Court sentenced Petitioner on December 15, 2010 as follows:


                 Count 1 — Criminal attempt murder: Ten (10) to Twenty (20) years in a
                           state correctional institution, a fine of $1,000.00 and the costs
                           of the proceedings;

                 Count 2 — Aggravated assault: Two (2) to Four (4) years in a state
                           correctional institution, a fine of $500.00 plus costs of the
                           proceedings to run concurrent vvith Count 1;

                 Count 3 -    Aggravated assault: Merged with Count 2;



I 18 Pa.C.S. § 901
2 18 Pa.C.S. § 2702
3 18 Pa.C.S. § 6105
4 18 Pa.C.S. § 2701
                                                                                              Circulated 07/24/2014 03:12 PM




                  Count 4 - Person not to possess a firearm: Four (4) to Eight (8) years in
                            a state correctional institution, a fine of $500,00 and costs of
                            the proceedings, concurrent with Count 1;5

                  Count 5 -     Simple assault: One (1) to Two (2) years in a state
                                correctional institution and costs of the proceedings
                                concurrent with Count 1.



         Petitioner was given time credit from May 14, 2010 to December 15, 2010. Petitioner

filed a post-sentence motion on December 21, 2010 and this Court denied Petitioner's motion on

December 27, 2010. On January 5, 2011, Petitioner filed a Notice of Appeal through her

appointed counsel, Wendy Grella, Esquire. This Court then ordered Petitioner to file a Concise

Statement of Errors Complained of on Appeal on January 5, 2011. Petitioner requested an

extension to file her Statement of Errors on January 18, 2011 to which this Court granted

Petitioner's time extension on January 19, 2011. Thereafter, Petitioner timely filed her

Statement of Errors on February 28, 2011. The Superior Court of Pennsylvania affirmed this

Court's December 15, 2010judgment of sentence on April 19, 2012. Petitioner subsequently

filed a PCRA petition, a Motion to Proceed in Forma Pauperis, a Motion for Appointment of

Counsel and a Petition for Funding for Private Investigator on October 24, 2012. This Court

granted Petitioner's Motion to Proceed in Forma Pauperis and also appointed Jennifer E. Tobias,

Esquire on October 31,2012 to represent Petitioner during post-conviction review and ordered

that Attorney Tobias file a supplemental PCRA petition on Petitioner's behalf within 30 days of

this Court appointing her as counsel. Attorney Tobias requested an extension to file a

supplemental PCRA petition to which this Court granted her a 60-day extension on November

5 Prior totrial, Appellant's attorney, Royce Morris, Esquire, made a motion in limine to sever Count 3 due to the fact
that entering evidence that Appellant had a crirninal history to support that charge would have been prejudicial. This
Court granted that motion, and Appellant pled guilty to that charge before the Honorable Bruce F. Bratton on March
30, 2011. Judge Bratton subsequently sentenced Appellant to serve four-to-eight years in a state correctional
institution, concurrent with Count 1.

                                                          2
                                                                                 Circulated 07/24/2014 03:12 PM




27, 2012. On Janualy 28, 2013, Attorney Tobias filed a supplemental PCRA petition on

Petitioner's behalf. Subsequently, this Court ordered the Commonwealth to respond to

Petitioner's supplemental PCRA petition within 30 days on January 30, 2013. On March 1,

2013, the Commonwealth submitted its Answer. On March 29, 2013, this Court filed a

Memorandum Opinion and Order scheduling an evidentiary hearing for June 17, 2013. The

March 29,2013 Order was amended on May 16, 2013 to permit Petitioner to call Samone

Stewart and Jerel Stewart as witnesses at the evidentiary hearing. On June 3, 2013, Petitioner

filed a Petition for Writ of Habeas Corpus. This Court filed an Order on June 18, 2013 re-

scheduling the evidentiary hearing for July 23,2013. The transcript of those proceedings was

produced on August 26,2013. The Commonwealth filed its Brief in Response to Defendant's

PCRA Petition on September 20, 2013. On September 23, 2013, Petitioner filed her Brief

Regarding the Evidentiary Hearing Held Pursuant to the PCRA.




                              Petitioner's Motion for Post Conviction Relief


       Petitioner claims she is eligible for relief premised upon "Nneffective assistance of

counsel which, in the circumstances ofthe particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.

9543(a)(2)(ii). In support of her ineffective assistance of counsel claim, Petitioner argues that

her trial counsel, Royce Morris, Esquire, was ineffective for failing to call witnesses at trial on

Petitioner's behalf.


                                           PCRA Hearing




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        At the evidentiary hearing held in this rnatter on July 23, 2013, Petitioner testified that

she spoke to Attorney Morris on two occasions about having her brother and sister testify on her

behalf. (Notes of Testimony ofPCRA Evidentiary Hearing, July 23, 2013 at 4-6, 8). Petitioner

further testified that "technically" she did not speak to her brother or sister about testifying, but

she did tell them to call her lawyer. (N.T. at 6). Petitioner indicated that her brother, Jerel

Stewart, did not witness any previous altercations between Petitioner and the victim because he

had been incarcerated. (N.T. at 7, 11-12), Petitioner further indicated that her sister, Samone

Stewart, witnessed an altercation between Petitioner and the victim shortly before the incident.

(N.T. at 7). Samone asserted that Petitioner never asked her to testify at trial and that she never

had any contact with Petitioner's attorney about testifying. (N.T. at 16).

        Jerel testified that he was not present at Petitioner's trial because he was serving a life

sentence for a murder conviction.(N.T. at 21). He indicated that because of his incarceration he

never witnessed any previous altercations between the Petitioner and victim. (N.T. 21-22). He

further indicated that if he had testified on Petitioner's behalf, he did not know what he would

have testified to since he never witnessed any previous incidents. (N.T. at 22).

        Attorney Morris indicated that he did not remember Petitioner having any conversation

with him regarding Samone and Jerel testifying on her behalf. (N.T. at 24). He indicated that

testimony regarding prior abuse would have been relevant, but that he did not use that

information because it had not been presented to him. (N.T. at 25).


                                              Discussion

        To be eligible for relief under the PCRA,a petitioner must plead and prove, by a

preponderance of the evidence, all ofthe following:




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               (1)That the petitioner has been convicted of a crime under the laws of this
               Commonwealth and is at the time relief is granted: (i) currently serving a
               sentence ofimprisonment, probation or parole for the crime .. .(2)that
               the conviction or sentence resulted from one or more of the following: (i)
               A violation ofthe Constitution of this Commonwealth or the Constitution
               or laws ofthe United States which, in the circumstances of the particular
               case, so undermined the truth-determining process that no reliable
               adjudication of guilt or innocence could have taken place;(ii) Ineffective
               assistance of counsel which,in the circumstances ofthe particular case, so
               undermined the truth-determining process that no reliable adjudication of
               guilt or innocence could have taken place; (iii) A plea of guilty
               unlawfully induced where the circumstances make it likely that the
               inducement caused the petitioner to plead guilty and the petitioner is
               innocent; (iv) The improper obstruction by government officials of the
               petitioner's right ofappeal where a meritorious appealable issue existed
               and was properly preserved in the trial court;...(vi) The imposition of a
               sentence greater than the lawful maximum;(vii) A proceeding in a
               tribunal without jurisdiction;(3)That the allegation of error has not been
               previously litigated or waived;(4)That the failure to litigate the issue
               prior to or during trial, during unitary review or on direct appeal could not
               have been the result of any rational, strategic or tactical decision by
               counsel.

•42 Pa.C.S.A. § 9543(a).

       In reviewing a claim of ineffectiveness of counsel, we begin with the presumption that

trial counsel rendered effective assistance. Commonwealth v. Basemore, 744 A.2d 717, 728 n.

10(Pa. 2000). To obtain relief on an ineffective assistance claim, a petitioner must rebut that

presumption and demonstrate that counsel's performance was deficient, and that such

performance prejudiced him. Strickland v. Washington,466 U.S. 668, 687-91 (1984). In

Pennsylvania, the determination of ineffective assistance of counsel is a three-prong test.

Specifically, a petitioner must show that(1)the underlying claim is of arguable merit,(2) no

reasonable basis existed for counsel's action or inaction, and (3)counsel's error caused prejudice

such that there is a reasonable probability that the result ofthe proceeding would have been

different absent such error. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). To

dernonstrate that counsel was ineffective for failing to call a witness, Petitioner must demonstrate

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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 ofthe witness was so prejudicial as

to have denied the defendant a fair trial. Commonwealth v. Washington,927 A.2d 586,599(Pa.

2007).

         Here, we address whether Attorney Morris was ineffective for failing to call witnesses at

trial on Petitioner's behalf. Attorney Morris testified that he did not remember Petitioner ever

having a conversation with him regarding Samone or Jarel testifying on her behalf. He indicated

that if he had been aware of past abuse, it would have been relevant to Petitioner's defense.

However, since counsel was unaware of the information Petitioner now claims her brother and

sister possessed, it would not have been possible for counsel to call these witnesses to testify, ln

addition, this Court found the testimony of Attorney Morris more credible than that of Petitioner.

Therefore, the claim that counsel knew of or should have known of the existence of the witnesses

is without merit.

         Additionally, because Jarel was incarcerated during the time Petitioner had a relationship

with the victim, he never witnessed any incidents that may have occurred between the Petitioner

and victim during that time. Since Jerel was incapable of testifying as to any knowledge of prior

altercations between Petitioner and the victim, Petitioner was not prejudiced by the absence of

his testimony.

         Samone indicated that she never had any discussions with Petitioner about testifying at

trial. Though she testified that she witnessed a prior incident between the Petitioner and victim,

this information was not brought to counsel's attention. Additionally, there was a great deal of

evidence to support Petitioner's conviction even if Samone and Jerel had testified. This evidence



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included the testimony of several people who witnessed Petitioner hitting the bloody•victim with

a gun in her hand, pointing the gun at the victim and pulling the trigger. (Notes of Testimony of

Jury Trial, at 158-59; 265-270; 294-97). For these reasons, Petitioner has failed to prove that the

absence of testimony was so prejudicial that it denied her a fair trial.

Therefore, Petitioner's claim that Attorney Morris was ineffective for failing to call witnesses at

trial on her behalf is without merit.



       Accordingly, we enter the following:




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