J-S65006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

KYSHIM M. HENDERSON,

                        Appellant                    No. 462 EDA 2014


               Appeal from the PCRA Order January 29, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0007718-2009


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED NOVEMBER 12, 2015

      Kyshim M. Henderson appeals from the order entered January 29,

2014, dismissing his petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. We affirm.

      In August 2008, Appellant was playing dice on North Franklin Place in

Philadelphia. A dispute arose between Appellant and Rashawn Howard when

Mr. Howard threatened to take money lying on the ground next to the game.

Appellant drew a gun and shot Mr. Howard six times in the legs and hips.

Mr. Howard died from his wounds.
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        Appellant was arrested and charged with murder of the third degree,

possession of an instrument of crime (PIC), and related firearms offenses.1

In March 2010, a bench trial commenced.                 The Commonwealth introduced

testimony from three eyewitnesses, Lyle Littlejohn, Germane Thompson, and

Sheryl Smith.        On the witness stand, Mr. Littlejohn and Mr. Thompson

recanted statements previously given to the police.                        However, the

Commonwealth introduced their prior inconsistent statements as substantive

evidence of Appellant’s guilt.

        Following trial, the court found Appellant guilty of third-degree murder

and PIC.2 In June 2010, the trial court sentenced Appellant to eighteen to

thirty-six years’ incarceration, followed by five years’ probation.             Appellant

timely appealed; this Court affirmed the judgment of sentence, and the

Supreme      Court    of    Pennsylvania       denied   allowance    of    appeal.    See

Commonwealth           v.    Henderson,         43   A.3d   525     (Pa.   Super.    2012)

(unpublished memorandum), appeal denied, 48 A.3d 1247 (Pa. 2012).

        In April 2013, Appellant timely filed a counseled petition for collateral

relief, asserting ineffective assistance of trial counsel on several grounds.

The PCRA court dismissed Appellant’s petition without a hearing. Appellant

____________________________________________


1
  See 18 Pa.C.S. §§ 2502(c), 907(a), 6105(a)(1), 6106(a)(1), and 6108,
respectively.
2
    The remaining charges were nolle prossed.




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timely appealed. The PCRA court did not direct Appellant to file a Pa.R.A.P.

1925(b) statement but issued a memorandum opinion explaining its

decision.

      Appellant raises the following issues, restated for clarity:

      1. Whether trial counsel was ineffective for failing to interview
      Lyle Littlejohn prior to trial and, thereafter, failing to move to
      suppress Mr. Littlejohn’s statement to police; and

      2. Whether trial counsel was ineffective for failing to interview
      and/or call Carl Bell or Antwain Young as trial witnesses.

See Appellant’s Brief at 3.

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.     Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

      In this case, the PCRA court dismissed Appellant’s petition without a

hearing.    See PCRA Court Order, 10/16/2014, at 1 (citing in support

Pa.R.Crim.P. 907).    There is no absolute right to an evidentiary hearing.

See Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).

On appeal, we examine the issues raised in light of the record “to determine

whether the PCRA court erred in concluding that there were no genuine




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issues of material fact and in denying relief without an evidentiary hearing.”

Id.

      We presume counsel is effective.      Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence: “(1) the underlying legal issue has arguable

merit; (2) counsel’s actions lacked an objective reasonable basis; and (3)

actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).   “A petitioner establishes prejudice when he demonstrates that

there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. A claim

will be denied if the petitioner fails to meet any one of these requirements.

Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)

(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

      In his first issue, Appellant contends that the police statement

attributed to Mr. Littlejohn was involuntary and coerced.       According to

Appellant, if trial counsel had interviewed Mr. Littlejohn prior to trial, he

could have filed a “persuasive pretrial motion” to suppress Mr. Littlejohn’s

statement. Appellant’s Brief at 19.




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      Appellant’s claim is without merit.            Appellant failed to identify any

additional   information      that   trial   counsel    could    have    obtained    from

interviewing Mr. Littlejohn prior to trial. Accordingly, we discern no error by

trial counsel in this regard. See Commonwealth v. Elliott, 80 A.3d 415,

439-40 (Pa. 2013) (concluding that, “absent a proffer” of information helpful

to a petitioner’s claim that counsel’s failure to interview a potential witness

prejudiced      petitioner,   the    claim    must     fail);   see    also   Appellant’s

Memorandum of Law in Support of his Petition for Post Conviction Relief,

04/23/2013, at 18 (acknowledging that “counsel in the instant case had to

have known based upon Littlejohn’s preliminary hearing testimony that his

police statement was involuntary and could be suppressed”).

      Further, even if Appellant is correct that Mr. Littlejohn’s statement to

police was coerced, Appellant was without standing to move for its

suppression.      See, e.g., Commonwealth v. Millner, 888 A.2d 680, 692

(Pa. 2005) (“[A] defendant cannot prevail upon a suppression motion unless

he demonstrates that the challenged police conduct violated his own,

personal privacy interests.”); Commonwealth v. Brown, 342 A.2d 84, 91

(Pa. 1975) (“[I]t is settled law that [an] appellant lacks standing to assert

the   alleged    deprivation    of   another’s     constitutional     rights.”)   (quoting

Commonwealth v. Butler, 291 A.2d 89, 90 (Pa. 1972)).

      Appellant suggests that his lack of standing is immaterial, as the

admission of Mr. Littlejohn’s statement was a violation of Appellant’s right to


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due process. However, Appellant’s position is without legal support. To the

contrary, the Supreme Court of Pennsylvania has held expressly:

      [The admission of] prior inconsistent statements of witnesses
      who testify at trial, where such statements were properly
      admitted, but recanted at trial, does not offend due process
      provided the makers of such statements have been made
      available for cross examination[.]

Commonwealth v. Brown, 52 A.3d 1139, 1184 (Pa. 2012).                  Here, Mr.

Littlejohn testified at trial, recanted his prior police statement, and was

cross-examined by trial counsel. Accordingly, Appellant suffered no violation

of his right to due process.

      Appellant also contends that trial counsel was ineffective for failing to

interview and call as trial witnesses Carl Bell or Antwain Young. Appellant

submitted affidavits from both potential witnesses.

      Specifically, Mr. Bell attested that on the night of Mr. Howard’s

murder, he heard several gunshots. See Affidavit of Carl Bell, 03/27/2013,

at 1. According to Mr. Bell, he started walking toward the crime scene and

witnessed an unknown black male leaving the area.        Id. at 1-2.    Mr. Bell

gave a statement to police.    Id. at 2.   Further, Mr. Bell attests that the

police wanted him to identify Appellant as the shooter, but he refused to do

so. Id. at 3.

      Mr. Young attested that on the night of the murder, he was at home

watching his son and did not hear of the shooting until later. See Affidavit

of Antwain Young, 04/02/2013, at 1. Mr. Young also suggests that friends


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told him that Ms. Smith testified at Appellant’s trial that she witnessed him

fleeing the crime scene with Appellant.    Id. at 2.   Mr. Young specifically

denied being with Appellant following the shooting. Id.

      Regarding Mr. Bell’s proffered testimony, Appellant suggests that it

“may have established reasonable doubt.” Appellant’s Brief at 23. Further,

according to Appellant, Mr. Young’s testimony “would have impeached” the

testimony of Ms. Smith and rendered the Commonwealth’s evidence

unreliable. Id. at 27.

      In order to establish ineffectiveness for failure to call a witness, a

petitioner must demonstrate:

      (1) the witness existed; (2) the witness was available to testify
      for the defense; (3) counsel knew of, or should have known of,
      the existence of the witness; (4) the witness was willing to
      testify for the defense; and (5) the absence of the testimony of
      the witness was so prejudicial as to have denied the defendant a
      fair trial.

Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012) (citing

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

      Here, Appellant’s claim is devoid of merit.         His conviction was

supported by eyewitness accounts establishing that Appellant shot Mr.

Howard multiple times.     Weighed against this compelling evidence, the

proffered testimony of Mr. Bell is immaterial.     Mr. Bell did not himself

witness the crime, and his affidavit suggests nothing more than the

possibility that an unknown man was in the neighborhood at the time Mr.

Howard was murdered.     Moreover, as noted by the PCRA court, Mr. Bell’s

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statement to police, largely consistent with his affidavit, was introduced at

trial by Appellant’s trial counsel during his cross-examination of Detective

Centeno.     See Opinion, 10/30/2014, at 11 (citing Notes of Testimony,

03/29/2010, at 148-51).

      Similarly, the proffered testimony of Mr. Young does not exculpate

Appellant.    Mr. Young did not witness the murder, nor can he provide

Appellant with an alibi. Indeed, as noted by the PCRA court, “[a]t most, Mr.

Young’s    affidavit   does   nothing   more   than   provide   himself   with   an

uncorroborated alibi.” Id. at 11. Accordingly, Appellant cannot demonstrate

that the absence of testimony from either Mr. Bell or Mr. Young was so

prejudicial as to have denied him a fair trial. Sneed, 45 A.3d at 1109.

      For the above reasons, we discern no error in the PCRA court’s

decision to dismiss Appellant’s petition without a hearing. Appellant’s claims

are without merit. He is entitled to no relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2015




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