J-S37017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DARNELL GRIMSLEY,

                        Appellant                   No. 1256 EDA 2014


                Appeal from the PCRA Order March 21, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0900701-2006


BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 15, 2015

      Appellant, Darnell Grimsley, appeals pro se from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

      This matter involves the murder of Devin Dunbar, which occurred on a

Philadelphia Street in the early evening of April 8, 2006. Just prior to the

murder, several people had seen Appellant walking down the street with

Mr. Dunbar. Witnesses also testified that they heard a single gunshot and

observed a man, fitting Appellant’s description, fleeing from the scene.

Mr. Dunbar died as a result of a single gunshot to the head.         After an

extensive police investigation, a warrant was issued for Appellant’s arrest on

May 6, 2006.    Appellant was apprehended later that day.      Appellant was
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charged with first-degree murder and possession of an instrument of crime

(“PIC”).

       Appellant went to trial on October 10, 2007, and on October 16, 2007,

the jury reported it was deadlocked on the charge of first-degree murder.

The trial judge then declared a mistrial. Appellant was subsequently retried.

On August 12, 2008, a jury convicted Appellant of first-degree murder and

PIC.   On October 24, 2008, the trial court sentenced Appellant to serve a

term of life imprisonment for first-degree murder and a consecutive term of

incarceration of one to two years for the conviction of PIC. Appellant filed

post-sentence motions, which were denied.        Appellant then filed a direct

appeal in which he challenged both the sufficiency and weight of the

evidence. On November 4, 2010, this Court affirmed Appellant’s judgment

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

appeal on May 25, 2011. Commonwealth v. Grimsley, 905 EDA 2009, 22

A.3d 1055 (Pa. Super. 2010) (unpublished memorandum), appeal denied,

21 A.3d 1190 (Pa. 2011).

       On April 30, 2012, Appellant filed the instant PCRA petition. The PCRA

court appointed counsel, who subsequently filed a Turner/Finley letter1

and petitioned to withdraw from representation. On January 14, 2014, the

PCRA court issued its notice of intent to dismiss pursuant to Pa.R.Crim.P.
____________________________________________


1
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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907. Appellant filed a pro se response on February 18, 2014. On March 21,

2014, the PCRA court dismissed Appellant’s PCRA petition and granted PCRA

counsel’s petition to withdraw. This pro se appeal followed.

     Appellant presents the following thirteen issues in his brief, which we

reproduce verbatim:

     I. DID THE TRIAL COURT ERR BY DISMISSING THE POST-
     CONVICTION RELIEF ACT PETITION PURSUANT TO COUNSEL’S
     “NO-MERIT” LETTER THAT FAILED TO COMPORT WITH
     APPELLANT   STANDARD    GOVERNING   WITHDRAWAL    OF
     COUNSEL’S  REPRESENTATION    IN  POST-DIRECT  APPEAL
     PROCEEDINGS?

     II. WAS COUNSEL INEFFECTIVE FOR NOT MEETING WITH
     CLIENT FACE TO FACE, FAILING TO INTERVIEW WITNESSES
     AND FAILING TO CONDUCT ANY INVESTIGATION?

     III. WAS COUNSEL INEFFECTIVE FOR FAILING TO CALL EXPERT
     WITNESS WHICH COULD HAVE PROVING HIS CLIENT’S
     INNOCENCE?

     IV. WHETHER TRIAL COURT ERRED IN ALLOWING FAMILY
     MEMBERS OF THE DECEASED TO BECOME WITNESSES FOR THE
     STATE, AFTER SITTING IN THE COURT-ROOM AND HEARING
     TESTIMONY    FROM    OTHER   WITNESSES   WHILE    A
     SEQUESTRATION ORDER WAS IN EFFECT.

     V. WHETHER THE APPELLANT RECEIVED AN EFFECTIVE APPEAL
     WITHOUT HAVING A COMPLETE COPY OF THE TRIAL
     TRANSCRIPT.

     VI. DID THE TRIAL COURT ERR IN ADMITTING INFLAMMATORY
     PHOTOGRAPHS INTO EVIDENCE AFTER TRIAL COUNSEL
     OBJECTED AT THE FIRST TRIAL THUS FAILING TO DO THE SAME
     AT THE SECOND TRIAL?

     VII. TRIAL COUNSEL FOR MR. GRIMSLEY (APPELLANT)
     PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING
     TO INVESTIGATE MR. BARNES (‘STAR WITNESS’) CRIMINAL


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      HISTORY, AND IN FAILING TO CALL WITNESSES: SAFIYA,
      RAFIYA, PAMELA JOHNSON AND SANDY FOSTER AT TRIAL.

      VIII. WAS P.C.R.A. COUNSEL INEFFECTIVE FOR FILING A NO
      MERIT/FINELY LETTER?

      IX. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE A
      RULE 600 VIOLATION CLAIM.

      X. PROSECUTION MISCONDUCT FOR KNOWINGLY SOLICITING
      FALSE TESTIMONY AND FAILING TO CORRECT THE ERROR AND
      LIE.

      XI. WAS APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO
      RAISE ANY CLAIMS REQUESTED BY THE APPELANT?

      XII. WHETHER COMMONWEALTH PROVED ITS CASE BEYOND A
      REASONABLE DOUBT.

      XIII. WHETHER THE VERDICT IS AGAINST THE WEIGHT OF
      EVIDENCE.

Appellant’s Brief at 5-6.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).     The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      Appellant first argues that the PCRA court erred in dismissing his PCRA

petition pursuant to appointed counsel’s “no merit” letter. Appellant’s Brief


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at 13-14.      Appellant asserts that PCRA counsel never reviewed or

investigated any of the claims that Appellant raised in the PCRA petition,

misstated most of the claims that Appellant wished to have raised, and did

not explain why the issues raised were meritless. Id.

      The PCRA court addressed Appellant’s issue in this regard as follows:

            Following receipt of the 907 Notice of Intent to Dismiss,
      [Appellant] filed a response alleging that PCRA counsel did not
      conduct a thorough review of his pro se claims claiming that he
      failed to list and address several of [Appellant’s] claims that
      were clearly raised in the PCRA petition. However, the [PCRA]
      Court’s review, demonstrated that PCRA counsel addressed each
      of these issues in his Finley letter and fully explained why each
      claim lacked merit. While PCRA counsel may have phrased these
      complaints differently, he adequately addressed each of them.
      After its independent review of [Appellant’s] complaints in the
      pro se petition, the response to the 907 notice, and the record,
      the [PCRA] Court found that PCRA counsel had complied with the
      requirements of Finley, agreed with PCRA counsel’s assessment
      that [Appellant’s] claims lacked merit, and permitted PCRA
      counsel to withdraw from representation.

PCRA Court Opinion, 6/18/14, at 7. Likewise, we have reviewed the certified

record before us, and we discern no error on the part of the PCRA court in

dismissing the PCRA petition and granting PCRA counsel permission to

withdraw. Thus, we conclude that Appellant’s first issue lacks merit.

      In his second issue, Appellant argues that his trial counsel was

ineffective. Appellant’s Brief at 14. Specifically, Appellant claims that, after

the first trial ended in a mistrial, trial counsel was ineffective when he:

      failed to prepare “in any manner” for trial, including a failure to
      meet with [A]ppellant face-to-face, failing to interview
      witnesses, and failing to conduct investigation.


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Id.

       In order to succeed on a claim of ineffective assistance of counsel, an

appellant must demonstrate (1) that the underlying claim is of arguable

merit; (2) that counsel’s performance lacked a reasonable basis; and (3)

that   the   ineffectiveness   of   counsel   caused   the   appellant   prejudice.

Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).                    We have

explained that trial counsel cannot be deemed ineffective for failing to

pursue a meritless claim.      Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc). Moreover, with regard to the second prong,

we have reiterated that trial counsel’s approach must be “so unreasonable

that no competent lawyer would have chosen it.”              Commonwealth v.

Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000) (quoting Commonwealth

v. Miller, 431 A.2d 233 (Pa. 1981)).

       Our Supreme Court has long defined “reasonableness” as follows:

              Our inquiry ceases and counsel’s assistance is deemed
       constitutionally effective once we are able to conclude that the
       particular course chosen by counsel had some reasonable basis
       designed to effectuate his client’s interests. The test is not
       whether other alternatives were more reasonable, employing a
       hindsight evaluation of the record.        Although weigh the
       alternatives we must, the balance tips in favor of a finding of
       effective assistance as soon as it is determined that trial
       counsel’s decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.

1967)) (emphasis in original).



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       In addition, we are mindful that prejudice requires proof that there is a

reasonable probability that, but for counsel’s error, the outcome of the

proceeding would have been different. Pierce, 786 A.2d at 213. “A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim

of ineffectiveness.”   Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,

when it is clear that a petitioner has failed to meet the prejudice prong of an

ineffective assistance of counsel claim, the claim may be disposed of on that

basis alone, without a determination of whether the first two prongs have

been met.     Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super.

2005).

       It is presumed that the petitioner’s counsel was effective, unless the

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,

1177     (Pa. 1999).      We   are   bound by the         PCRA   court’s credibility

determinations    where    there     is   support   for   them    in   the   record.

Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).

       Furthermore, claims of ineffective assistance of counsel are not self-

proving.    Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).

“[A] post-conviction petitioner must, at a minimum, present argumentation

relative to each layer of ineffective assistance, on all three prongs of the

ineffectiveness standard….”     Commonwealth v. D’Amato, 856 A.2d 806,


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812   (Pa.   2004).    “[A]n    underdeveloped   argument,    which   fails   to

meaningfully discuss and apply the standard governing the review of

ineffectiveness claims, simply does not satisfy Appellant’s burden of

establishing that he is entitled to relief.” Commonwealth v. Bracey, 795

A.2d 935, 940 n.4 (Pa. 2001).

      The PCRA court addressed this claim of ineffective assistance of trial

counsel as follows:

             Appellant further complains that trial counsel never came
      to see him to prepare for trial. Appellant’s own submission
      contradicts this claim. Trial counsel visited [A]ppellant in prison
      on September 5, 2007 and counsel’s investigator visited with
      [A]ppellant in prison on October 1, 2007. (Exhibit A, Petitioner’s
      Response to 907 Notice).3 Thereafter, [A]ppellant’s first trial
      ended in a mistrial. Moreover, [A]ppellant has not alleged any
      beneficial information or issue that counsel should have
      presented, had counsel come to see him more often, which
      would have changed the outcome of the trial. Commonwealth v.
      Elliot, 80 A.3d 415, 432 (Pa. 2013)(citing Commonwealth v.
      Travaglia, 541 Pa. 108, 661 A.2d 352, 357 (1995)) (requiring a
      defendant to demonstrate prejudice in an ineffectiveness claim
      by demonstrating that []but for the act or omission in question,
      the outcome of the proceedings would have been different, and
      noting that a claim of ineffectiveness could be denied if the
      petitioner fails to satisfy any one of the three prongs).
      Accordingly, this claim fails.
             3
                The names of both trial counsel and the
             investigator appear prior to the date [A]ppellant
             indicates in his exhibit, however no date is
             associated with the names.

PCRA Court Opinion, 6/18/14, at 5-6 (footnote in original).

      Even if we were to presume that in his appellate brief to this Court

Appellant has presented proper argument pertaining to the first two prongs


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of the ineffectiveness standard, we must conclude that Appellant has offered

no relevant discussion addressing the third prong, i.e., that the alleged

ineffectiveness of counsel in not adequately meeting with Appellant face-to-

face after the first trial ended in a mistrial caused Appellant prejudice.

Indeed, Appellant has failed to establish that, but for trial counsel’s alleged

error, the outcome of the proceeding would have been different.              Pierce,

786 A.2d at 213.     As we stated in Baker, when a petitioner has failed to

meet the prejudice prong of an ineffective assistance of counsel claim, the

claim may be disposed of on that basis alone, without a determination of

whether the first two prongs have been met.              Baker, 880 A.2d at 656.

Accordingly,    Appellant’s      underdeveloped       argument,    which    fails   to

meaningfully     discuss   the    prejudice   prong    governing   the     review   of

ineffectiveness claims, does not satisfy the burden of establishing that

Appellant is entitled to relief. Bracey, 795 A.2d at 940 n.4. Thus, this issue

does not warrant relief.

      In his third issue Appellant again argues that trial counsel was

ineffective.   Appellant’s Brief at 15.   In this instance, Appellant avers that

trial counsel was ineffective for failing to call a crime scene expert as a

witness to dispute whether the victim “was shot on the left side of the back

of the head.” Id. Appellant concludes that “[t]rial counsel was ineffective

for failing to consult with or call [an] expert witness to explain there is no

way that [A]ppellant committed this crime.” Id.


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      Regarding a claim of trial counsel ineffective assistance for failure to

call an expert witness, this Court has stated the following:

      In order to demonstrate counsel’s ineffectiveness for failure to
      call a witness, a petitioner must prove that “the witness existed,
      the witness was ready and willing to testify, and the absence of
      the witness’ testimony prejudiced petitioner and denied him a
      fair trial.” [Commonwealth v.] Johnson, 27 A.3d [244,] 247
      [(Pa. Super. 2011)] (internal citation omitted). In particular,
      when challenging trial counsel’s failure to produce expert
      testimony, “the defendant must articulate what evidence was
      available and identify the witness who was willing to offer such
      evidence.” Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d
      726, 745 (Pa. 2004) (internal citation omitted).

Commonwealth v. Luster, 71 A.3d 1029, 1047 (Pa. Super. 2013).

      Our review of the record reflects that Appellant failed to identify his

expert witness or provide an affidavit that this alleged expert was available

to testify on Appellant’s behalf.     Lacking such evidence of an available

witness, the PCRA court had no reason to believe that any expert would

have testified in the manner that Appellant alleges.      Thus, we discern no

error on the part of the PCRA court in declining to grant Appellant relief on

this ineffective assistance of counsel claim.

      In his fourth issue Appellant argues that trial counsel was ineffective

for failing to object to trial court errors regarding violations of sequestration

orders.   Appellant’s Brief at 15.    Appellant’s complete argument in this

regard is as follows:

            The appellant avers that counsel was ineffective for failing
      to object and raise claims on the trial court errors and violation
      of sequestration order. Thus, after starting trial and after the
      sequestration order, the Commonwealth went to grieving family

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      members of the deceased and obtained statements from them.
      And the next day of trial, allowed them to get on the witness
      stand and testify after hearing all the testimony of the other
      witnesses.   See; N/T 10/11/2007, pp. 15, 89-92, and N/T
      8/08/2008 pp. 86, 187-188. And see; ...Com. v. Pierce, 537 Pa.
      514, 645 A.2d 189, (Pa. 1994); Spicer v. Warden of Roxbury
      Corr., 31 F. Supp. 2d 509 CD.Md (1998). Trial Judge even
      admitted that there was a order violation.          See; N/T
      10/11/2007, pp. 15-16, 92.

Id. (verbatim).

      Assuming for the sake of argument that there is merit to the

underlying claim that trial counsel should have objected to the violation of a

sequestration order, we observe that Appellant has failed to establish, let

alone make an allegation, that he has suffered any prejudice.            As we

previously stated, claims of ineffective assistance of counsel are not self-

proving. Wharton, 811 A.2d at 986. Accordingly, Appellant’s issue fails.

      In his fifth issue Appellant argues that trial counsel was ineffective for

failing to object to remarks made by the prosecution.      Appellant’s Brief at

16. Specifically, Appellant presents the following argument:

             The appellant avers that counsel was ineffective for failing
      to object to the prejudicial remarks made by the prosecutor
      during the playing of the tape-recording which the prosecutor
      kept pausing to make inflammatory remarks to inflame the
      minds of the jurors. Appellant avers that he is unable to address
      exactly what the prosecutor said due to the [loss of transcripts].
      See, N/T 8/08/08, pg. 202, where it only states the time the
      recording was played (2.24pm). Important/crucial portion of the
      trial transcripts are missing. See as follows...; Com. v. Shields,
      383 A.2d 844, 477 Pa. 105 (Pa. 1978).

Id. (verbatim).




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      Appellant fails to state which remarks by the prosecutor were

prejudicial, and it is his responsibility to do so. Again, claims of ineffective

assistance of counsel are not self-proving.     Wharton, 811 A.2d at 986.

Appellant’s underdeveloped argument that does not discuss the prejudice

prong governing the review of ineffectiveness claims does not satisfy the

burden of establishing relief. Bracey, 795 A.2d at 940 n.4. Accordingly, we

must conclude that Appellant has failed to establish his claim that trial

counsel was ineffective in this regard. Consequently, Appellant’s issue fails.

      In his sixth issue Appellant argues that the trial court erred in

permitting the jury to view an inflammatory photograph of the victim’s

gunshot wound. Appellant’s Brief at 16-17. Appellant contends that the trial

court improperly overruled trial counsel’s objection and incorrectly allowed

jurors to see a “gruesome photo” of the deceased victim’s head. Id.

      We observe the following:

      “to be entitled to PCRA relief, a petitioner must plead and prove,
      inter alia, that the allegation of error has not been previously
      litigated or waived.” Commonwealth v. Berry, 877 A.2d 479,
      482 (Pa. Super. 2005), appeal denied, 917 A.2d 844 (Pa. 2007).
      “An issue is waived if it could have been raised prior to the filing
      of the PCRA petition, but was not.” Id. These statements in
      Berry are derived directly from Section 954[4](b) of the PCRA,
      which provides that “an issue is waived if the petitioner could
      have raised it but failed to do so before trial, at trial, during
      unitary review, on appeal or in a prior state postconviction
      proceeding.” 42 Pa.C.S. § 954[4](b).




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Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007). Thus,

where issues presented in a PCRA petition could have been raised on direct

appeal and were not, they are waived. Id.

      Our review of the record reflects that this issue asserting trial court

error in publishing a photograph to the jury could have been raised on direct

appeal but was not. Moreover, it is not a claim which Appellant assigns as

error to counsel for failure to preserve it. Accordingly, we conclude that this

issue is waived. Turetsky.

      In his seventh issue, Appellant presents two claims of trial counsel

ineffective assistance: failing to properly investigate a Commonwealth

witness’s criminal history and failing to call various witnesses on Appellant’s

behalf. Appellant’s Brief at 17-18. For the following reasons, these issues

do not merit relief.

      Initially, Appellant contends that trial counsel was ineffective for failing

to properly investigate the criminal history of Commonwealth witness Eric

Barnes.   We are mindful that Pa.R.A.P. 302(a) provides that “issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.” Pa.R.A.P. 302(a). Hence, only claims properly presented in the

lower court are preserved for appeal. See Commonwealth v. Jones, 912

A.2d 268, 278 (Pa. 2006) (explaining that an issue is waived where it was

not presented in the original or amended PCRA petition below). Instantly,

our review of the certified record reflects that Appellant failed to present this


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issue of ineffective assistance of trial counsel to the PCRA court in his PCRA

pleadings.     Therefore, we are constrained to conclude that the issue is

waived due to Appellant’s failure to present it to the PCRA court.

      In addition, Appellant argues that trial counsel was ineffective for

failing to call various witnesses on Appellant’s behalf. Specifically, Appellant

contends that trial counsel should have called “Safiya,” “Rafiya,” Pamela

Johnson, and Sandy Foster. Appellant’s Brief at 17-18.

      To prevail on an allegation of trial counsel’s ineffectiveness for failure

to call a witness, an appellant must prove: “(1) the witness existed; (2) the

witness was available; (3) trial counsel was informed of the existence of the

witness or should have known of the witness’s existence; (4) the witness

was prepared to cooperate and would have testified on appellant’s behalf;

and   (5)     the     absence      of    the    testimony   prejudiced   appellant.”

Commonwealth v. Chmiel, 889 A.2d 501, 545-546 (Pa. 2005) (citations

omitted).     Trial counsel’s failure to call a particular witness does not

constitute ineffective assistance without some showing that the absent

witness’s testimony would have been beneficial or helpful in establishing the

asserted defense.      Id.   Appellant must demonstrate how the testimony of

the uncalled witness would have been beneficial under the circumstances of

the case.     Id.    In addition, counsel is not ineffective for failing to call a

witness      whose     testimony        would   have   been   merely     cumulative.

Commonwealth v. Meadows, 787 A.2d 312, 320 (Pa. 2001).                      Further,


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ineffectiveness for failing to call a witness will not be found where a

petitioner fails to provide affidavits from the alleged witnesses indicating

availability and willingness to cooperate with the defense. Commonwealth

v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004).

       In the instant matter, our review of the certified record reflects that

Appellant did not include an affidavit from any of the alleged witnesses

indicating their availability and willingness to cooperate with the defense at

trial in any of his pro se PCRA filings.2 This omission alone is grounds for

rejecting his claim. O’Bidos.

       In his eighth issue Appellant raises a claim of PCRA counsel ineffective

assistance. Appellant’s Brief at 18. Appellant asserts that his PCRA counsel

was ineffective for choosing to file a Turner/Finley “no merit letter.” Id.

       Instantly, Appellant’s argument in this regard amounts to mere

allegations of PCRA counsel ineffective assistance and lacks any discussion of

the three prongs of ineffective assistance. Again, as we previously stated,

claims of ineffective assistance of counsel are not self-proving. Wharton,

811 A.2d at 986. A PCRA petitioner must present argumentation relative to
____________________________________________


2
    We note that in his appellate brief filed with this Court, Appellant has
included a copy of an affidavit from “Safiya Bint-Ishmawiyl.” Appendix to
Appellant’s Brief. However, items appended to an appellate brief but not
part of the certified record on appeal are not properly before us for review
and cannot be considered. See Commonwealth v. Crawley, 663 A.2d
676, 681 n.9 (Pa. 1995) (reiterating that where an item it has not been
offered into evidence and is therefore not part of the official record, we
cannot properly consider it on appeal).



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all three prongs of the ineffectiveness standard. D’Amato, 856 A.2d at 812.

Accordingly, Appellant’s undeveloped claim of PCRA counsel ineffective

assistance fails.

      In his ninth issue Appellant again argues that his trial counsel was

ineffective. Appellant’s Brief at 19. In this issue, Appellant alleges that trial

counsel was ineffective for failing to raise a claim of a Rule 600 violation.

Id.

      Again, Pa.R.A.P. 302(a) provides that “issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a).    Only claims properly presented in the lower court are

preserved for appeal.     See Jones, 912 A.2d at 278        (explaining that an

issue is waived where it was not presented in the original or amended PCRA

petition below).    Instantly, our review of the certified record reflects that

Appellant failed to present this issue of ineffective assistance of trial counsel

to the PCRA court in any of his PCRA pleadings. Hence, we conclude that

the issue is waived due to Appellant’s failure to present the claim to the

PCRA court.

      In his tenth issue Appellant argues that the prosecution committed

misconduct. Appellant’s Brief at 19. Specifically, Appellant alleges that the

prosecutor knowingly solicited false testimony from Eric Barnes pertaining to

Mr. Barnes’s criminal record and failed to correct the witness’s misstatement

regarding his criminal record. Id.


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      As mentioned earlier in this memorandum, “An issue is waived if it

could have been raised prior to the filing of the PCRA petition, but was not.”

Turetsky, 925 A.2d at 879. Section 9544(b) of the PCRA provides that “an

issue is waived if the petitioner could have raised it but failed to do so before

trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.”    42 Pa.C.S. § 9544(b).      Consequently, where

issues presented in a PCRA petition could have been raised on direct appeal

and were not, they are waived. Turetsky, 925 A.2d at 879.

      This issue claiming prosecutorial misconduct concerning the testimony

of Mr. Barnes could have been raised on direct appeal, but was not.

Therefore, we conclude that this issue is waived. Turetsky.

      In his eleventh issue Appellant argues that his appellate counsel was

ineffective for failing to raise “any claims requested by the appellant.”

Appellant’s Brief at 20.     Again, a post-conviction petitioner must, at a

minimum, present argumentation on all three prongs of the ineffectiveness

standard. D’Amato, 856 A.2d at 812.

      Our review reflects that Appellant has failed to develop this allegation

of ineffective assistance of appellate counsel beyond bald claims concerning

a failure to raise unspecified issues requested by Appellant. Appellant has

failed to develop an argument concerning whether appellate counsel had a

reasonable basis for the failure to present claims, or how Appellant suffered

prejudice as a result of appellate counsel’s alleged inaction.        Thus, we


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conclude that Appellant has failed to establish his claim that appellate

counsel was ineffective.

      In his twelfth issue Appellant argues that there was insufficient

evidence to support his conviction.    Appellant’s Brief at 20-22.    Appellant

asserts that the Commonwealth failed to prove its case as to all of his

charges, but specifically, Appellant targets his conviction for first-degree

murder.

      As we previously observed, to be entitled to PCRA relief, a petitioner

must plead and prove that the allegation of error has not been previously

litigated. Berry, 877 A.2d at 482. A claim is previously litigated under the

PCRA if the highest appellate court in which the petitioner could have had

review as a matter of right has ruled on the merits of the issue. 42 Pa.C.S.

§ 9544(a)(2).

      Our review reflects that, on direct appeal to this Court, Appellant

specifically challenged the sufficiency of the evidence supporting his

conviction of first-degree murder, and this Court thoroughly addressed the

claim. Grimsley, 905 EDA 2009, 22 A.3d 1055 (unpublished memorandum

at 8-14).     In Appellant’s direct appeal, we ultimately concluded that

“[A]ppellant’s conviction for first degree murder was supported by the

evidence.” Id. at 14. Therefore, because the challenge to the sufficiency of

the evidence was previously litigated on direct appeal, it is not cognizable for

our review.


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     In his final issue Appellant attempts to argue that his conviction of

first-degree murder was against the weight of the evidence.       Appellant’s

Brief at 22. However, this claim is not cognizable under the PCRA.

     In order to be entitled to relief under the PCRA, a petitioner first must

establish that his conviction or sentence resulted from one or more of the

errors found in 42 Pa.C.S. § 9543(a)(2). Commonwealth v. Keaton, 45

A.3d 1050, 1060 (Pa. 2012). Section 9543(a)(2) provides as follows:

     (a) General rule.--To be eligible for relief under this
     subchapter, the petitioner must plead and prove by a
     preponderance of the evidence all of the following:

                                   * * *

           (2) That the conviction or sentence resulted from
           one or more of the following:

                 (i) A violation of the Constitution of this
                 Commonwealth or the Constitution or
                 laws of the 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 of the
                 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.

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                  (iv) The     improper    obstruction by
                  government officials of the petitioner’s
                  right of appeal where a meritorious
                  appealable issue existed and was
                  properly preserved in the trial court.

                  (v) Deleted.

                  (vi) The unavailability at the time of trial
                  of exculpatory        evidence that has
                  subsequently become available and
                  would have changed the outcome of the
                  trial if it had been introduced.

                  (vii) The imposition of a sentence greater
                  than the lawful maximum.

                  (viii) A proceeding in a tribunal without
                  jurisdiction.

42 Pa.C.S. § 9543(a)(2).

      Appellant’s issue challenges the weight of the evidence upon which his

conviction is based.    This claim does not fit into any of the categories

delineated in section 9543(a)(2). Accordingly, it is not cognizable under the

PCRA and will not afford Appellant relief.

      Moreover, even if the issue were cognizable under the PCRA, as we

previously observed, Pa.R.A.P. 302(a) provides that “issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a). See Jones, 912 A.2d at 278 (explaining that an issue is

waived where it was not presented in the original or amended PCRA petition

below). Instantly, our review of the certified record reflects that Appellant

failed to present this issue to the PCRA court in his various PCRA pleadings.


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Therefore, we are constrained to conclude that, had this claim been

cognizable under the PCRA, the issue would be waived due to Appellant’s

failure to present the claim to the PCRA court.3

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2015




____________________________________________


3
   Our review reflects that, on direct appeal, Appellant raised a challenge to
the weight of the evidence. However, in addressing Appellant’s direct
appeal, we determined that the issue was waived for failure to present the
issue to the trial court as required under Pa.R.Crim.P. 607(A). Grimsley,
905 EDA 2009, 22 A.3d 1055 (unpublished memorandum at 14). Thus, we
note that had this issue been presented as a claim of ineffective assistance
of counsel for failing to properly preserve a weight of the evidence challenge
for direct appeal, it could be cognizable under the PCRA. See 42 Pa.C.S.
§ 9543(a)(2)(ii). However, Appellant does not allege ineffective assistance
of counsel in this regard.



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