J-S57011-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                 : IN THE SUPERIOR COURT OF
                                              :      PENNSYLVANIA
                    Appellee                  :
                                              :
            v.                                :
                                              :
ERNEST MORRIS,                                :
                                              :
                    Appellant                 : No. 2564 EDA 2013

                  Appeal from the PCRA Order August 20, 2013,
                   Court of Common Pleas, Montgomery County,
                 Criminal Division at No. CP-46-CR-0005182-2005

BEFORE: DONOHUE, MUNDY and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED OCTOBER 10, 2014

      Appellant,    Ernest     Reginald   Morris   (“Morris”),   appeals   from   the

dismissal of his petition for relief filed pursuant to the Post Conviction Relief

Act, 42 Pa.C.S.A. §§ 9541-46 (the “PCRA”). For the reasons that follow, we

affirm the PCRA court’s order.

      In a prior opinion, the trial court summarized the relevant procedural

background of this case through the time of trial as follows:

            On March 24, 2005, Morris was charged with three
            counts of first-degree murder, three counts of third-
            degree murder and various other related offenses.
            The charges stemmed from the January 31, 2005,
            shooting deaths      of Shawne Mims,        Jennifer
            Pennington and Ms. Pennington’s unborn child.

            Detectives in Montgomery and Philadelphia Counties
            initially were unable to locate Morris. On May 1,
            2005, Montgomery County Detectives were advised
            that Morris had been arrested in Georgia. The
            following day, arrangements were made to have
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          Morris extradited back to Montgomery          County.
          Morris   arrived     at   the  Montgomery      County
          Correctional Facility on May 24, 2005.

          On August 12, 2005, the Commonwealth filed a
          Notice of Intent to Seek Death Penalty. Two weeks
          later, Todd E. Henry, Esquire, entered his
          appearance on behalf of Morris. The trial of Morris,
          and co-defendants Harold Murray and Maurice David
          Jones, commenced in this court before the Honorable
          Richard J. Hodgson on January 3, 2006. Following
          opening statements, the court granted a defense
          request for mistrial. Morris and his co-defendants
          subsequently sought to bar retrial on double
          jeopardy grounds.      Judge Hodgson denied that
          request, and Morris and his co-defendants appealed
          the adverse double jeopardy ruling to the Superior
          Court.

          On January 7, 2008, the Superior Court denied the
          appeal, and remanded the case back to this court.
          The co-defendants timely filed petitions for allowance
          of appeal with our Supreme Court; Morris, still
          represented by Henry, did not.

          With the case against Morris back in this court,
          Henry filed a motion to withdraw as counsel on
          February 15, 2008. On or about February 27, 2008,
          Morris’s family retained Gregory J. Pagano, Esquire
          [“Attorney Pagano”], to represent Morris.        Upon
          reviewing Morris’s file, Pagano discovered that the
          time to appeal to the Supreme Court from the
          Superior Court’s double jeopardy decision had
          expired.    Consequently, on February 28, 2008,
          Pagano filed a nunc pro tunc petition for allowance of
          appeal with the Supreme Court.                 Pagano
          subsequently withdrew the petition on March 14,
          2008.

          On April 3, 2008, President Judge Hodgson
          scheduled the trial of Morris for May 1, 2008, and the
          case was re-assigned to the undersigned. That same




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J-S57011-14


          day, the    Commonwealth        provided   discovery   to
          Pagano.

          The undersigned held a pre-trial conference on April
          29, 2008. With the agreement of Morris, this court
          granted the motion to withdraw previously filed by
          Henry. Pagano then verbalized a desire to withdraw
          as counsel, citing a lack of payment and the volume
          of discovery recently provided to him by the
          Commonwealth.          After lengthy on-the-record
          discussions with Morris regarding his desire to either
          proceed to trial as scheduled, or to re-file a nunc pro
          tunc petition for allowance of appeal, this court
          directed Pagano to re-file the petition.

          On September 25, 2008, the Supreme Court granted
          Morris’s re-filed Petition for Leave to File Petition for
          Allowance of Appeal Nunc Pro Tunc. The Supreme
          Court ultimately denied allowance of appeal on May
          24, 2009.

          With the case returned to Montgomery County, the
          court issued an Order on June 1, 2009, appointing
          John I. McMahon, Jr., Esquire [“Attorney McMahon”],
          to serve as counsel for Morris. At a pre-trial hearing
          on June 4, 2009, this court scheduled trial for August
          24, 2009. The Commonwealth filed an Amended
          Notice of Intent to Seek Death Penalty on June 12,
          2009.

          On August 21, 2009, Morris, through counsel, filed a
          Motion to Dismiss under Pennsylvania Rule of
          Criminal Procedure 600. After two days of hearings,
          this court denied Morris’s Rule 600 motion in an
          Order dated August 25, 2009. Trial commenced on
          September 15, 2009.

          On October 14, 2009, the jury found Morris guilty of
          one count of Criminal Conspiracy, one count of First
          Degree Murder, two counts of Second Degree
          Murder, one count of First Degree Murder of an
          Unborn Child, one count of Kidnapping, two counts of
          Burglary, four counts of False Imprisonment, one



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            count of Possession of an Instrument of Crime and
            one count of Possession of a Weapon. During the
            penalty phase, the jury informed the court in a
            written note after more than 10 hours of
            deliberations that it could not reach unanimity for
            either the death penalty or life in prison. Instead,
            the jury unanimously voted to end deliberations on
            October 19, 2009. This court later sentenced Morris
            to three consecutive terms of life imprisonment
            without parole, plus a consecutive term of
            incarceration of 43 to 90 years.

            Morris, through trial counsel, filed a [timely] Notice
            of Appeal on January 19, 2010. This court issued an
            Order on January 21, 2010, directing Morris to file a
            Concise Statement of Matters Complained of on
            Appeal within 21 days. Morris, through counsel, filed
            a Concise Statement, and served a copy on the
            undersigned, on February 12, 2010.

Trial Court Opinion, 3/15/10, at 1-4 (footnotes omitted).

      On direct appeal, Morris raised one issue for our consideration,

specifically whether the trial court erred in dismissing his motion pursuant to

Rule 600 of the Pennsylvania Rules of Criminal Procedure. On November 1,

2010, this Court affirmed the judgment of sentence. 1       On December 30,

2010, Morris filed a pro se PCRA petition seeking the reinstatement of his

direct appeal rights so that he could file a petition for allowance of appeal

with the Supreme Court of Pennsylvania.       After the appointment of new


1
    In our memorandum decision, we noted that Morris had filed with this
Court a pro se brief reiterating counsel’s arguments and adding his own, but
that we refused to address the new issues raised pro se because Morris was
represented by counsel at that time. Commonwealth v. Morris, 243 EDA
2010, at 4 n.1 (Pa. Super. November 1, 2010) (unpublished memorandum)
(citing Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999) and
Commonwealth v. Ellis, 626 A.2d 1137, 1141 (Pa. 1993)).


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counsel, the trial court granted the requested relief.     On December 29,

2011, the Supreme Court denied Morris’ petition for allowance of appeal.

      On July 11, 2012, Morris filed a second PCRA petition. The PCRA court

eventually appointed Karen Lee DeMerlis, Esquire, to represent Morris. 2 On

May 9, 2013, Attorney DeMerlis filed a petition to withdraw as counsel

pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), on

the grounds that based upon her review of the record no meritorious issues

existed. On July 21, 2013, the PCRA court permitted Attorney DeMerlis to

withdraw as counsel and issued a notice of intent to dismiss Morris’ second

PCRA petition without an evidentiary hearing pursuant to Rule 907 of the

Pennsylvania Rules of Criminal Procedure.     Morris filed multiple objections

and replies to the Rule 907 notice, but on August 20, 2013, the PCRA court

dismissed Morris’ second PCRA petition without an evidentiary hearing. On

September 23, 2013, Morris, proceeding pro se, filed a Pa.R.A.P. 1925(b)

statement, listing 38 issues.3 On November 12, 2013, the PCRA court filed a

written opinion pursuant to Pa.R.A.P. 1925(a).



2
   The PCRA court initially appointed the local public defender’s office to
represent Morris, but the office had a conflict of interest. The PCRA court
then appointed Stephen M. Geday, Esquire, but due to Attorney Geday’s
inability to represent Morris, Attorney DeMerlis was then appointed.
3
  Morris’ Rule 1925(b) statement, listing 38 issues for review, is not concise.
Rule 1925(b)(4)(iv), however, provides that “the number of errors raised will
not alone be grounds for finding waiver.” Pa.R.A.P. 1925(b)(4)(iv), and in
Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417 (Pa. 2007),
our Supreme Court instructed that this Court should not find waiver because


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     On appeal, Morris raises the same 38 issues he set forth in his Rule

1925(b) statement:

     1.    Did the Honorable Court commit error in its opinion
           that no objective facts and circumstances existed to
           prove that the prosecutor intentionally provoked
           defense counsel into moving for a mistrial in
           [Morris’] first trial[.]

     2.    Was the Commonwealth afforded a second, perhaps,
           more favorable opportunity to convict [Morris] as a
           result of the mistrial declared in defendant's first
           trial[.]

     3.    Was the [trial court's] determination of facts
           surrounding      Double      Jeopardy      questions
           unreasonable because the fact finding process was
           defective due to the prosecution's suppression of
           evidence favorable to [Morris], forcing the judge(s)
           to make a decision on an incomplete record[.]

     4.    Did the prosecutor fabricate evidence to the jury in
           his opening statement of [Morris’] first trial[.]

     5.    Was the Commonwealth required to file an affidavit
           along with subpoena for Cell Site Location
           Information (CSLI), pursuant to the probable cause
           standard[.]

     6.    Did the tactic employed by the Commonwealth to
           secure Cell Site Location Information (CSLI) violate
           unlawful search-and-seizure provisions in the State
           and Federal constitutions and the Pennsylvania
           Wiretap Act[.]

     7.    Did [Morris] have a reasonable expectation of
           privacy with respect to the cell phone signal he was


of the number of issues raised in Rule 1925(b) statements unless the trial
court finds that the appellant acted in bad faith. Id. at 420-21. Because the
PCRA court did not find that Morris acted in bad faith, we will not quash his
appeal on this basis.


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           using, at the time(s) he was using the cellphone in
           his possession[.]

     8.    Did the      Commonwealth violate     the  ‘stored
           communications’ provision of the Wiretap Act in its
           obtainment of Cell Site Location Information in
           [Morris’] case[.]

     9.    Was the warrantless search and seizure of Cell Site
           Location Information (CSLI) permissible absent the
           [c]ourt's determination that both probable cause and
           exigent circumstances existed, as set forth in the
           jurisprudence of both the state Superior Court and
           Supreme Court[.]

     10.   Did the Commonwealth have a continuing duty to
           promptly disclose subpoena for Cell Site records []
           received from Nextel Phone Company before the
           adjudication of [Morris’] Double Jeopardy [a]ppeal,
           pursuant to Pa.R.Crim.P. 573 and Brady v.
           Maryland, 373 US 83 (1963)[.]

     11.   Did the Honorable Court violate [Morris’] Due
           Process rights when it failed to initiate an inquiry and
           resolve conflict between [Morris] and defense
           counsel after several pretrial warnings[.]

     12.   Did the Honorable Court's decision to allow attorney
           Gregory Pagano to represent [Morris] as first-chair
           counsel in pretrial and on [i]nterlocutory [a]ppeal to
           Supreme Court violate the legislative intent of the
           Supreme Court, pursuant to Title 1 Pa.C.S.A. §
           1921(b) and Pa.R.Crim.P. 801[.]

     13.   Was [Morris] prejudiced when he was represented by
           unqualified counsel Pagano, who failed to obtain 801
           certification, pursuant to Pa.R.Crim.P. 801 and the
           jurisprudence of both the state Superior Court and
           Supreme Court[.]

     14.   Did the Honorable Court commit error by allowing
           the Commonwealth to introduce Cell Site evidence at
           trial[.]



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     15.   Did the Honorable Court commit error in its opinion
           that [Morris] did not have standing to challenge the
           admission of Cell Site evidence as an aggrieved
           person[.]

     16.   Was trial counsel ineffective for abandoning [Morris’]
           Double Jeopardy claim, and failing to raise objective
           facts and circumstances of the prosecutor's intent to
           provoke defense counsel into moving for a mistrial to
           gain a tactical advantage[.]

     17.   Was trial counsel ineffective for failing to investigate
           witnesses who provided notarized affidavit(s), or
           contradicting statements which could provide
           reasonable doubt[.]

     18.   Was trial counsel ineffective for failing to argue that
           the Cell Site evidence should be suppressed pursuant
           to the Fruit-Of-The-Poisonous-Tree Doctrine because
           the evidence was illegally obtained by the
           Commonwealth[.]

     19.   Was trial counsel ineffective for failing to establish
           that [Morris] had standing to challenge the
           admission of Cell Site evidence because appellant
           was an aggrieved person[.]

     20.   Was trial counsel ineffective for failing to argue that
           the prosecutor should have requested a hearing
           outside of the presence of jury when witness
           (Saleema Whitfield) expressed in an affidavit of
           probable cause for Search & Seizure Warrant her
           contemplation to assert her Fifth Amendment
           privilege rather than question the witness in front of
           the jury[.]

     21.   Did the conduct of the district attorney regarding
           witness Saleema Whitfield's intention to ‘plea The
           Fifth’ if called to testify at [Morris’] trial, the
           prosecutor failing to bring that information to the
           [c]ourt's attention display extraordinary course of




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           prosecutorial overreaching taken in deliberate bad
           faith[.]

     22.   Did the prosecutor's conduct surrounding Ms.
           Whitfield's intention to invoke her Fifth Amendment
           privilege constitute a deliberate attempt to force
           [Morris] to move for a mistrial, or at the least,
           prosecutorial overreaching, bad faith harassment
           designed to prejudice [Morris’] prospects for
           acquittal[.]

     23.   Did the prosecutor knowingly use false testimony to
           convict [Morris.]

     24.   Was trial counsel ineffective for suggesting a trial
           strategy that contradicted [Morris’] plea of ‘not
           guilty’[.]

     25.   Was trial counsel ineffective for requesting
           accomplice liability instruction since [Morris] was not
           charged with accomplice liability by statue [sic] in
           Bills of Information[.]

     26.   Did the Honorable Court commit error by allowing
           the prosecutor to suggest to the jury that they could
           find [Morris] guilty based on the accomplice liability
           principle[.]

     27.   Was trial counsel ineffective for failing to object to
           the prosecutor's suggestion to the jury that they
           should find [Morris] guilty based on the accomplice
           liability principle[.]

     28.   Was trial counsel ineffective for failing to raise and
           preserve more than one (1) issue on direct appeal[.]

     29.   Did the [Commonwealth] act in bad faith, harass or
           prejudice appellant when the district attorney's office
           contacted the Pennsylvania Supreme Court's
           Prothonotary’s Office and suggest the [Morris] did
           not want to appeal and the [C]ourt should deny and
           remand the case, so that the Commonwealth could




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J-S57011-14


           gain an unfair advantage by trying [Morris’] case
           with his codefendants[.]

     30.   Did trial judge commit error when he and       attorney
           Pagano spoke ‘off-the-record’ regarding        [Morris’]
           pending proceeding without [Morris]            present,
           knowing a conflict of interest existed         between
           [Morris] and Pagano[.]

     31.   Was PCRA counsel ineffective for failing to argue and
           preserve ‘layered ineffectiveness’ claim[.]

     32.   Did the anxiety caused by the intentional
           prosecutorial misconduct raise systematic concerns,
           beyond a specific right to fair trial, left unaddressed
           by retrial[.]

     33.   Did the Honorable Court apply an incorrect standard
           of law or misapply the appropriate standard in its
           decision of [Morris’] issues[.]

     34.   Were all counsels to date ineffective, pursuant to the
           provisions of the Fifth, Sixth and Fourteenth
           Amendments to the United States Constitution and
           Article 1 § 9, Article 1 § 10 of the Constitution of the
           Commonwealth of Pennsylvania[.]

     35.   Did the Sentencing Court commit error by not
           considering [Morris’] age and state of maturity and
           all relevant factors before imposing sentence[.]

     36.   Does Pennsylvania's mandatory life without parole
           sentencing scheme violate the Fifth, Sixth, Eighth
           and Fourteenth Amendments to the United States
           Constitution and Article 1 § 6, Article 1 § 9, Article 1
           § 13 and Article 1 § 26 of the Constitution of the
           Commonwealth of Pennsylvania[.]

     37.   Did the theory of ‘transferred intent’ unfairly
           prejudice [Morris], violating the Fifth, Sixth, Eighth
           and Fourteenth Amendment to the United States
           Constitution and Article 1 § 6, Article 1 § 9, Article 1




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             § 13, Article 1 § 26 of the Constitution of the
             Commonwealth of Pennsylvania[.]

      38.    Did the Honorable Court commit error when it
             dismissed [Morris’] PCRA petition without a hearing
             after [Morris] raised several material issues of fact[.]

Morris’ Brief at 5-9.

      When considering the propriety of an order denying a request for relief

under the PCRA, our standard of review is to determine whether the ruling of

the PCRA court is supported by the certified record on appeal and is free of

legal error. Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super.

2013); Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012);

Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. 2012).

      To    obtain   PCRA     relief,   the   petitioner   must   establish,   by   a

preponderance of the evidence, that his conviction or sentence resulted from

one or more of the enumerated errors in 42 Pa.C.S.A. § 9543(a)(2), his

claims have not been previously litigated or waived, and “the failure to

litigate the issue prior to or during trial ... or on direct appeal could not have

been the result of any rational, strategic or tactical decision by counsel.” Id.

§ 9543(a)(3)-(4).       An issue is previously litigated if “the highest appellate

court in which [appellant] could have had review as a matter of right has

ruled on the merits of the issue.” Id. § 9544(a)(2). An issue is waived if

the petitioner “could have raised it but failed to do so before trial, at trial, ...




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on appeal or in a prior state post-conviction proceeding.” Id. § 9544(b);

Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. 2013)

      Based upon these principles, a majority of the issues raised here by

Morris have not been preserved for appellate review at this time.       A prior

panel of this Court decided Morris’ first and thirty-third issues on appeal in a

memorandum decision dated January 7, 2008, concluding that the trial court

did not err in denying Morris’ motion to bar a re-trial on double jeopardy

grounds.4   Commonwealth v. Jones, Morris & Murray, 138, 165, 211

EDA 2006, at 17 (Pa. Super. January 7, 2008) (unpublished memorandum).

In addition, we find that issues 2-15,5 21-23, 26, 29, 30, 33, and 35-37 are



4
  In his appellate brief, Morris challenges the prior panel’s decision, claiming
that it was “contrary to well established federal law.” Morris’ Brief at 15.
Based upon the “law of the case” doctrine, however, this panel may not
reverse the decision of a prior panel. See, e.g., Commonwealth v. Reed,
971 A.2d 1216, 1220 (Pa. 2009) (citing Commonwealth v. Starr, 664 A.2d
1326, 1331 (Pa. 1995) (“Among the related but distinct rules which make up
the law of the case doctrine are that: … (2) upon a second appeal, an
appellate court may not alter the resolution of a legal question previously
decided by the same appellate court ….”).
5
  Although presented here as trial court errors, both the PCRA court and the
Commonwealth addressed Morris’ twelfth and thirteenth issues as claims of
ineffective assistance of counsel. In these two claims, Morris argues that he
was prejudiced because the trial court permitted him to be represented by
Attorney Pagano in a death penalty case even though Attorney Pagano had
not received certification pursuant to 234 Pa.Code § 801 to represent
defendants in death penalty cases. Morris’ Brief at 30-38. This issue,
however, was previously litigated, as it was raised on direct appeal in
connection with arguments related to the Rule 600 issue. In our November
1, 2010 memorandum decision, this Court ruled that “any error the trial
court committed in permitting Mr. Pagano to represent [Morris] prior to trial
was harmless.” Morris, supra n.3, at 9. As this decision is now the law of


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all waived,6 as they could have been (but were not) raised on direct appeal,

and Morris has not alleged that appointed counsel’s decision to forego these

issues on direct appeal “could not have been the result of any rational,

strategic or tactical decision by counsel.”7 42 Pa.C.S.A. § 9543(a)(4).

      Morris’ preserved issues for appeal all involve allegations of ineffective

assistance of counsel. To obtain relief on a claim of ineffectiveness, a PCRA

petitioner must satisfy the performance and prejudice test set forth in

Strickland v. Washington, 466 U.S. 668, 687 (1984).           In Pennsylvania,

we apply the Strickland test by looking to three elements.         To wit, the

petitioner must establish that (1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel's actions or failure to act; and

(3) the petitioner suffered prejudice as a result of counsel's error, with

prejudice measured by whether there is a reasonable probability that the


the case, Morris could not possibly establish prejudice necessary to support
an ineffectiveness claim.
6
   Issues thirty-two and thirty-five through thirty-seven are also waived
because Morris included no argument in support of them in his current
appellate brief. See, e.g., Commonwealth v. Stilley, 689 A.2d 242, 246
(Pa. Super. 1997) (“This argument is completely unsupported and made
without reference to case law or legal analysis. We, therefore, will not
address it.”).
7
   In connection with his twenty-eighth issue, Morris essentially admits that
his appointed counsel waived these issues intentionally on direct appeal by
utilizing a specific strategy – namely to focus this Court’s attention squarely
and exclusively on the Rule 600 issue by foregoing consideration of all other
issues on appeal. Morris’ Brief at 54. Morris now argues that this strategy
was unreasonable and that as a result counsel was ineffective for waiving
issues on direct appeal. Id. We will address this issue hereinbelow.


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result    of   the   proceeding   would    have   been   different.   See,   e.g.,

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

presumed       to    have   rendered      effective   assistance.     See,   e.g.,

Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. 2013). A court is

not required to analyze the elements of an ineffectiveness claim in any

particular order of priority, and if a claim fails under any necessary element

of the three-element test, the court may proceed to that element first. See,

e.g., Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998).

         For his sixteenth issue on appeal, Morris contends that his appointed

trial counsel (Attorney McMahon) was ineffective because he “abandoned”

efforts to bar a retrial on double jeopardy grounds. To understand Morris’

somewhat convoluted argument, we must remind that the trial court

declared a mistrial after opening arguments in Morris’ first trial, based on a

reference by the prosecutor to a statement to police made by one of Morris’

co-defendants.       On January 7, 2008, this Court affirmed the trial court’s

denial of Morris’ motion to bar a retrial on double jeopardy grounds,

rejecting Morris’ contention that the prosecutor had goaded Morris’ counsel

into moving for a mistrial. See, e.g., Commonwealth v. Smith, 615 A.2d

321 (Pa. 1992) (double jeopardy clause prohibits re-trial of a defendant

when prosecutorial misconduct is intended to provoke defendant into moving

for mistrial, or when the conduct of the prosecutor is intentionally

undertaken to prejudice defendant and deny him a fair trial). On May 24,



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2009, our Supreme Court denied Morris’ petition for allowance of appeal of

our decision.

          During the pendency of these appeals, the Commonwealth subpoenaed

and obtained phone records for the cell phone of Morris’ girlfriend.    These

records, which placed Morris at the scene of the crime, were subsequently

used against him at his second trial. Attorney McMahon received copies of

these phone records from the Commonwealth in or around April 2008, and

Morris now argues that Attorney McMahon should have filed a new motion to

bar a retrial on double jeopardy grounds using the phone records to bolster

his arguments. According to Morris, his prior double jeopardy motions and

appeals were decided on an “incomplete record,” since the phone records

provided new evidence that the prosecutor intentionally goaded defense

counsel into seeking a mistrial – namely to buy him more time before a

second trial to obtain said phone records to use against Morris in a second

trial.8    Morris’ Brief at 39-41 (“Apparently someone dropped the ball in

securing cell site records relating to [Morris] prior to the first trial, so

aborting trial in favor of gathering stronger evidence against [Morris] in a

second bite at the apple was ideal.”).




8
   Morris also argues that the “cell site evidence establishes not only did the
D.A. reference inadmissible heresy [sic], but he also fabricated evidence to
the jury.” Morris’ Brief at 40. As we cannot fathom how these points (even
if true) have any bearing on Morris’ sixteenth issue on appeal, we cannot
grant any relief on these bases.


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     In our January 7, 2008 memorandum decision, we rejected Morris’

double jeopardy arguments on two independent grounds.              First, we

concluded that no evidence of record supported Morris’ claims of intentional

misconduct by the prosecutor. Morris, supra, at 6 (“[W]e would agree with

the trial court that there was no evidence of intentional misconduct.”).

Second, we ruled that the prosecutor had not erred in referencing the co-

defendant’s statement to police, as it would have been admissible at trial.

Id. at 10.    In particular, we indicated that the statement of Morris’ co-

defendant did not directly incriminate Morris, as the co-defendant, rather

than confessing, had denied having anything to do with the victims’ murders

or even knowing Morris at all. Id.

     As a result, even if the subsequently obtained cell phone records could

have, hypothetically, been offered as some evidence of the prosecutor’s

intentional misconduct, a second motion to bar a retrial on double jeopardy

grounds had no chance for success.      If such a motion had been filed, the

trial court would have been bound to follow our ruling in the January 7, 2008

memorandum decision, which decision foreclosed any possibility that relief

could have been granted to Morris thereon.     Attorney McMahon cannot be

deemed ineffective for failing to raise a meritless claim.       See, e.g.,

Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006).

     For his seventeenth issue on appeal, Morris argues that Attorney

McMahon failed to investigate “witnesses who provided notarized affidavits,



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or contradicting statements which could provide reasonable doubt.” When

raising a failure to call a potential witness claim, the PCRA petitioner must

show, at a minimum, 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.

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

demonstrate prejudice, the PCRA petitioner “must show how the uncalled

witnesses' testimony would have been beneficial under the circumstances of

the case.” Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008);

see also Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) (“Trial

counsel's failure to call a particular witness does not constitute ineffective

assistance without some showing that the absent witness' testimony would

have been beneficial or helpful in establishing the asserted defense.”);

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

      Morris has not identified any potential witness who satisfies these

requirements.   In his appellate brief, he identifies one potential witness,

Donna Calhoun, who could potentially point to other individuals who were

apparently seen in the area of the crime on the night in question and who

were apparently looking for one of the victims. Morris’ Brief at 42. Morris

provides no basis, however, by affidavit or otherwise, that Calhoun was



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known to Attorney McMahon or was available and/or willing to testify in

Morris’ case at trial.

      In connection with this issue, Morris also contends that Attorney

McMahon failed to investigate DNA evidence on cigarette butts at the scene

of the crime.       According to Morris, this DNA evidence could have

“scientifically excluded” him from being at the scene of the crime, since the

Commonwealth posited that victim Jennifer Pennington was allowed to

smoke a final cigarette before her murder. Id. We cannot conceive of how

this evidence could possibly be exculpatory for Morris, however, since at

best it would show that Morris did not smoke the cigarettes that were tested

– which would prove nothing with regard either to his presence at the scene

or his participation in the crimes at issue.

      For his eighteenth and nineteenth issues on appeal, Morris contends

that Attorney McMahon was ineffective for failing to argue that the cell

phone reports should have been suppressed and that he had standing to

seek their suppression.    The issue of suppression was extensively litigated

prior to the second trial, with the trial court ruling ultimately denying the

suppression motion on the grounds that Morris lacked standing because he

had no possessory interest in the cell phone at issue.

      “The concept of standing in a criminal search and seizure context

empowers a defendant to assert a constitutional violation and thus seek to

exclude or suppress the government's evidence pursuant to the exclusionary



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rules under the Fourth Amendment of the United States Constitution or

Article 1, Section 8 of the Pennsylvania Constitution.” Commonwealth v.

Hawkins, 718 A.2d 265, 266 (Pa. 1998). As this Court has summarized:

             A defendant moving to suppress evidence has the
             preliminary burden of establishing standing and a
             legitimate expectation of privacy. Standing requires
             a defendant to demonstrate one of the following:
             (1) his presence on the premises at the time of the
             search and seizure; (2) a possessory interest in the
             evidence improperly seized; (3) that the offense
             charged includes as an essential element the
             element of possession; or (4) a proprietary or
             possessory interest in the searched premises. A
             defendant must separately establish a legitimate
             expectation of privacy in the area searched or thing
             seized. Commonwealth v. Hawkins, 718 A.2d
             265, 267 (Pa. 1998); Commonwealth v. Black,
             758 A.2d 1253, 1256–1258 (Pa. Super. 2000);
             Commonwealth v. Torres, 764 A.2d 532, 542 (Pa.
             2001); Commonwealth v. Perea, 791 A.2d 427,
             429 (Pa. Super. 2002). Whether [a] defendant has a
             legitimate expectation of privacy is a component of
             the merits analysis of the suppression motion. See
             Commonwealth v. Millner, 888 A.2d 680, 691 (Pa.
             2005). The determination whether [a] defendant
             has met this burden is made upon evaluation of the
             evidence presented by the Commonwealth and the
             defendant.

Commonwealth v. Powell, 994 A.2d 1096, 1103-04 (Pa. Super. 2010)

(quoting Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009)

(en banc).

     The parties do not dispute the basic factual predicate on which the trial

court ruled with respect to the suppression of the cell phone records. On the

night of the crime, Morris had borrowed the cell phone of his girlfriend,



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Saleema Whitfield (“Whitfield”).    Pursuant to a subpoena issued to Sprint

Nextel, in or around April 2006, the Commonwealth obtained the records for

this cell phone for the date in question, including cell tower information

showing the approximately location of where calls were made that night. At

the second trial, the Commonwealth used these cell phone records to place

Morris at the scene of the crime. See Morris’ Brief at 43, 45.

      The trial court ruled, and we agree, that Morris lacked standing to

suppress the cell phone records.       He was not present at the time of

production of the records, and possession of the cell phone and its records

was not an essential element of any of the crimes with which he was

charged or convicted.9 Because the cell phone belonged to Whitfield, Morris,

who was merely borrowing it that night, had no possessory interest in either

the cell phone or the records for it obtained by subpoena.       Moreover, the

trial court properly ruled that Morris had no reasonable expectation of

privacy either in the phone itself or any information associated with its use

on the night in question. Morris returned the borrowed phone to Whitfield

soon thereafter, apparently without erasing any information on it, thus

providing Whitfield with access to its contents.10



9
   Morris was convicted of possession of an instrument of crime and
possession of a weapon, but the essential element for these crimes was
possession of the gun, not the cell phone or its records.
10
    Morris also argues that the trial court erred in finding that Whitfield
consented to a search of the contents of her cell phone. Whether or not


                                     - 20 -
J-S57011-14


      Contrary to Morris’ contentions, Attorney McMahon litigated the issues

surrounding the cell phone records, but the trial court, in its discretion, ruled

in favor of the Commonwealth. As a result, Morris’ ineffectiveness claim on

this basis lacks any merit and no relief is due.

      For his twentieth issue on appeal, Morris argues that Attorney

McMahon was ineffective for failing to insist that the prosecutor request a

hearing outside of the presence of jury when Whitfield, during pre-trial

proceedings before the second trial, indicated that she would consider

asserting her Fifth Amendment privilege if called to testify against Morris

(principally regarding ownership of the above-discussed cell phone). Morris’

claim of ineffectiveness on this basis is moot, since Whitfield testified at the

second trial and did not assert a Fifth Amendment privilege.

      For his twenty-fourth issue on appeal, Morris claims that Attorney

McMahon was ineffective for recommending to him that, instead of claiming

his complete innocence, he take the position at trial that while he

accompanied his two co-defendants on the night in question (as their

driver), he did not know or want anyone to get hurt or killed. 11 Morris’ Brief



Whitfield consented to the search, however, is irrelevant to a determination
of Morris’ standing to seek suppression of the evidence at issue.
11
    In its appellate brief, the Commonwealth contends that Attorney
McMahon had a reasonable strategy for offering this advice, namely to avoid
a death sentence for Morris’ part in the murders. Commonwealth’s Brief at
27. The Commonwealth notes that this was a reasonable approach, both
because of the overwhelming nature of the evidence against him and


                                     - 21 -
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at 50. With respect to this issue, however, Morris has provided this Court

with no basis on which to conclude that he suffered any prejudice, including

no identification of any evidence or alternative strategy that counsel could

have utilized that would have resulted in a reasonable probability that the

result of trial would have been different.         As a result, in the absence of a

showing of prejudice, no relief is due on this issue.

      For his twenty-fifth and twenty-seventh issues on appeal, Morris

claims that Attorney McMahon was ineffective for requesting a jury charge

on accomplice liability and for not objecting when the Commonwealth argued

accomplice liability to the jury. Morris’ Brief at 51-53. Morris points out that

although he was charged with conspiracy, he was not also charged with

accomplice    liability,     and   counsel’s     actions    in    effect   reduced      the

Commonwealth’s burden to prove his guilt as a principal. Id.

      These ineffectiveness claims are meritless.                 A defendant may be

convicted    as   an       accessory   though     only     charged    as    a     principal.

Commonwealth           v.     Spotz,    716      A.2d      580,    588     (Pa.     1998);

Commonwealth v. Melvin, 2014 WL 4100200, at *37 n.30 (Pa. Super.

Aug. 21, 2014).        As long as the defendant is put on notice that the

Commonwealth may pursue theories of liability that link the defendant and


because it was successful. Id. In the absence of an evidentiary hearing,
however, the certified record contains no testimony from Attorney McMahon
as to his actual strategic basis, and we may not speculate in this area when
ruling on an ineffectiveness claim. Commonwealth v. Williams, 899 A.2d
1060, 1065 (Pa. 2006).


                                        - 22 -
J-S57011-14


another in the commission of crimes, the defendant cannot claim that the

Commonwealth's pursuit of such a theory surprised and prejudiced him.

Commonwealth v. Potts, 566 A.2d 287, 293 (Pa. Super. 1989);

Commonwealth v. Smith, 482 A.2d 1124, 1126 (Pa. Super. 1984).                     A

charge of criminal conspiracy puts a defendant on sufficient notice of the

Commonwealth’s intention to argue a link between that defendant and

another   person    in   the   commission      of    the   crimes    in    question.

Commonwealth v. McDuffie, 466 A.2d 660, 662 (Pa. Super. 1983) (“Such

notice was clearly adequate to alert appellant to the potential imposition of

criminal liability as an accomplice of Mr. Warren.”).

      For his twenty-eighth issue on appeal, Morris argues that Attorney

McMahon, as direct appeal counsel, was ineffective for preserving just one

issue (Rule 600) for appeal.    Based upon our review of his appellate brief

and the certified record on appeal, however, and as set forth hereinabove,

Morris has not identified any meritorious issue that Attorney McMahon failed

to pursue on direct appeal.    For this same reason, we must reject Morris’

thirty-first and thirty-fourth issues on appeal, pursuant to which he contends

all of his attorneys have provided ineffective assistance of counsel (including

claims of layered ineffectiveness).    To secure relief on claims for layered

ineffectiveness, an appellant must plead and prove Strickland/Pierce

ineffectiveness as to each relevant layer of representation.              See, e.g.,

Commonwealth v. Robinson,             82   A.3d     998,   1005-06   (Pa.    2013);



                                      - 23 -
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Commonwealth v. Ali, 10 A.3d 282, 292 (Pa. 2010); Commonwealth v.

McGill, 832 A.2d 1014, 1023 (Pa. 2003).               There can be no layered

ineffectiveness   claims,   however,    in   the   absence   of   any   meritorious

ineffectiveness claims.

      Finally, for his thirty-eighth issue on appeal, Morris claims that the trial

court erred in dismissing his second PCRA petition without an evidentiary

hearing.   Rule 908(A) of the Pennsylvania Rule of Criminal Procedure

provides that a judge shall order a hearing when a petition for PCRA relief

raises material issues of fact.    Pa.R.Crim.P. 908(A); Commonwealth v.

Hutchinson, 25 A.3d 277, 320 (Pa. 2011). Where a PCRA petition does not

raise material issues of fact and the petitioner’s claims may be disposed of

based upon the then-existing record, however, a PCRA court does not abuse

its discretion in dismissing the petition without an evidentiary hearing. See

Commonwealth v. Rush, 838 A.2d 651, 659–60 (Pa. 2003).                    Although

Morris now contends that he has raised “a multitude of material facts,” our

review of his second PCRA petition, the certified record on appeal, and his

appellate brief has not uncovered any such issues necessitating an

evidentiary hearing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2014




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