J-S60006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

TYREE BASS,

                        Appellant                   No. 2845 EDA 2014


         Appeal from the PCRA Order Entered September 12, 2014
           In the Court of Common Pleas of Philadelphia County
                        Criminal Division at No(s):
                         CP-51-CR-0005903-2008
                         CP-51-CR-0005904-2008
                         CP-51-CR-0005905-2008


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED OCTOBER 20, 2015

     Appellant, Tyree Bass, appeals pro se from the September 12, 2014

order denying his petition filed under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

     The facts and procedural history of Appellant’s case are set forth in the

PCRA court’s opinion, and we need not reproduce them herein. See PCRA

Court Opinion (PCO), 12/17/14, at 1-4.     However, we note that Appellant

was convicted, following a jury trial, of second-degree murder, attempted

murder, aggravated assault of an unborn child, conspiracy to commit arson,

and possessing an instrument of crime.        On April 22, 2010, he was

sentenced to an aggregate term of life imprisonment, without the possibility

of parole, plus a consecutive term of 35½ to 75 years’ incarceration.      On
J-S60006-15



June 7, 2011, this Court affirmed Appellant’s judgment of sentence, and our

Supreme Court denied his subsequent petition for permission to appeal.

Commonwealth v. Bass, No. 1640 EDA 2010, unpublished memorandum

(Pa. Super. filed June 7, 2011), appeal denied, 32 A.3d 1274 (Pa. 2011).

      Appellant filed a timely, pro se PCRA petition on August 21, 2012.

Counsel was appointed, but rather than filing an amended petition on

Appellant’s behalf, counsel filed a petition to withdraw and ‘no merit’ letter in

accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). On April 14,

2014, the PCRA court filed a Pa.R.Crim.P. 907 notice of its intent to dismiss

Appellant’s petition, and Appellant filed a pro se response. On September

12, 2014, the PCRA court issued an order dismissing Appellant’s petition and

granting PCRA counsel’s petition to withdraw. Appellant filed a timely, pro

se notice of appeal, and also timely complied with the PCRA court’s order to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. In that statement, Appellant preserved the following four issues for

our review:

      a. [T]he [PCRA] [c]ourt committed an error of law by
      determining that trial counsel[,] Gary Sanford Server and W.
      Fred Harrison, [were] not constitutionally ineffective in that trial
      counsel permitted, without objection, the jury to review during
      deliberation the unduly suggestive photo-array without also
      having the related witnesses[’,] Cassandra Cook-Powell and
      Kenneth Watts[,] statements to police;

      b. [T]he [c]ourt committed an error of law by determining that
      trial counsel’s [sic] were not constitutionally ineffective for failing


                                       -2-
J-S60006-15


     to move to stricken [sic] prejudicial hearsay testimony elicited
     from Kevin Cook, and failing to request [] a curative instruction;

     c. [T]he [c]ourt committed an error of law by determining that
     trial counsel’s [sic] were not constitutionally ineffective for failing
     to investigate and call critical/potential witnesses for the
     defense, interview them and, afterwards, call them to testify at
     trial, who were mentioned in the discovery materials as having
     been with the victim’s [sic] or near the crime scene when the
     shooting occurred, and trial counsel’s [sic] failed to explore all
     available alternatives to assure that the jury heard the testimony
     of these known witnesses, to-wit, Belinda Hamilton and Omar,
     whom [sic] testimonies could have been capable of casting doubt
     upon the prosecution witnesses[’] truthfulness;

     d. [T]he [c]ourt committed an error of law by denying
     [Appellant’s] petition for post-conviction collateral relief without
     a hearing pursuant to Pa.R.Crim.P. 907, and by denying
     [Appellant’s] request for permission for leave to amend his PCRA
     petition to add a claim of ineffective assistance of counsel
     rendered by PCRA counsel James Lammendola, Esquire[], in
     conformity with the [p]rescripts delineated under Pa.R.Crim.P.
     905(A), as requested in “Petitioner’s Response to the Court’s
     Proposed Dismissal/Disposition Without Hearing Pursuant to
     Pa.R.Crim.P. 907” dated August 25, 2014.

Rule 1925(b) Statement, 10/24/14, at 1-2 (unnumbered; emphasis and

unnecessary capitalization omitted).

     In Appellant’s brief to this Court, he does not present any argument

regarding issues (b) or (d).     Therefore, those claims are waived.           See

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an

appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful

fashion capable of review, that claim is waived.”) (citations omitted).

Additionally, in issue (c) of Appellant’s Rule 1925(b) statement, he refers

only to trial counsel’s failure to call Belinda Hamilton and an individual


                                       -3-
J-S60006-15



named “Omar.”        Accordingly, in the PCRA court’s Rule 1925(a) opinion, it

only addresses counsel’s failure to call these two witnesses.                 See PCRA

Court Opinion (PCO), 12/17/14, at 8-10. In Appellant’s brief to this Court,

however, he adds several more individuals whom counsel purportedly should

have called as defense witnesses.              See Appellant’s Brief at 27.       By not

referring to these additional witnesses in his Rule 1925(b) statement,

Appellant has waived review of his claim that counsel was ineffective for

failing to properly investigate, and/or call to the stand, these individuals. 1

See Pa.R.A.P. 1925(b)(4)(ii) (“The Statement shall concisely identify each

ruling or error that the appellant intends to challenge with sufficient detail to

identify all pertinent issues for the judge.”); Pa.R.A.P. 1925(b)(4)(vii)

(“Issues not included in the Statement and/or not raised in accordance with

the provisions of this paragraph (b)(4) are waived.”).

       In regard to the issues properly preserved by Appellant in his Rule

1925(b) statement and argued in his brief, we have thoroughly reviewed the

certified record, the       briefs of     the    parties,    and   the   applicable   law.

Additionally, we have reviewed the opinion of the Honorable Glenn B.

Bronson of the Philadelphia County Court of Common Pleas.                   We conclude

that   Judge    Bronson’s      well-reasoned      decision    accurately    disposes    of
____________________________________________


1
  We note that the PCRA court’s order directing Appellant to file a Rule
1925(b) statement informed Appellant that any issues not raised in his
concise statement would be deemed waived.      See PCRA Court Order,
10/3/14.



                                           -4-
J-S60006-15



Appellant’s two preserved claims, i.e., issues (a) and (c) in his Rule 1925(b)

statement.    See PCO at 5-7 (discussing Appellant’s issue (a)); 8-10

(assessing Appellant’s issue (c)).   Accordingly, we adopt Judge Bronson’s

opinion as our own and affirm the order denying Appellant’s PCRA petition

for the reasons set forth therein.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2015




                                     -5-
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                               IN THE COURT OF COMMON PLEAS
                          FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                   CRIMINAL TRIAL DIVISION

         COMMONWEALTH OF                                                  CP-51-CR-0005903-2008
         PENNSYLVANIA                                                     CP-51-CR-0005904-2008                     ·
                                        I'["('  j r•;   2·   n'!:1 :      CP-51-CR-0005905-2008
                                        _J L. r ... '   ·- .,   J
                 v.
                                                                       CP-51-CR-0005903-2008 Comm. v. Bass. Tyree
         TYREE BASS                                                                     Opinion




                                                        OPINION             IIIII II I I 111111111111111
                                                                                    7235702911

         BRONSON,J.                                                              December 17, 20 I 4


                              I. PROCEDURALBACKGROUND

         On March 3, 2010, following a jury trial before the Honorable Carolyn Engel Temin,

 defendant Tyree Bass was convicted of one count of second-degree murder (18 Pa.C.S. §

 2502(b)), one count of attempted murder (18 Pa.C.S. § 901), one count of aggravated assault

 of an unborn child (18 Pa.C.S. § 2606), conspiracy to commit arson (18 Pa.C.S. § 903), and

one count of possessing an instrument of crime (18 Pa.C.S. § 907). On April 22, 2010, Judge

Temin imposed an aggregate sentence of life without parole plus 35 Yz to 75 years

incarceration. Defendant filed post-sentence motions, which Judge Temin denied on May 17,

2010. Defendant was represented at trial and at sentencing by Gary Server, Esquire, and Fred

Harrison, Esquire.

        On June 7, 2011, the Superior Court affirmed defendant's judgment of sentence. On

November 14, 2011, the Supreme Court of Pennsylvania declined to hear defendant's petition

for appeal. Defendant was represented on appeal by Mr. Server. Defendant then filed a pro

se petition under the Post-Conviction Relief Act ("PCRA") on August 21, 2012. James

Lammendola, Esquire was appointed to represent defendant on July 12, 2013.

       On February 11, 2014, pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988), J\A.r. Lammendola filed a letter stating there was no merit to defendant's claims for
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  collateral relief. See Finley Letter of James Lammendola, Esquire, filed 2/11/2014 ("Finley

  Letter"). Since Judge Temin had retired from the bench, this matter was then assigned to the

  undersigned judge on February 21, 2014. On April 14, 2014, the Court issued notice pursuant

  to Pa.RCrim.P. 907 ("907 Notice>') of its intent to dismiss defendant's PCRA Petition without

  an evidentiary hearing. Defendant filed a response to the 907 Notice ("907 Response") on

  August 28, 2014. On September 12, 2014, the Court formally dismissed defendant's PCRA

  Petition and granted Mr. Lammendola's motion to withdraw his appearance.

           Defendant has now appealed the Court's dismissal of his PCRA Petition, alleging that:

  1) counsel was ineffective for permitting the jury, while deliberating, to review defendant's

 photo-array without also having the statements to police made by witnesses Cassandra Cook-.

 Powell and Kenneth Watts; 2) counsel was ineffective for failing to move to strike prejudicial

 hearsay testimony from witness Kevin Cook, and for failing to request a curative instruction;

 3) counsel was ineffective for failing to investigate, interview, and call as witnesses, Belinda

 Hamilton and "Omar"; and 4) the Court erred by denying defendant's PCRA Petition without

 a hearing and by denying defendant's request to amend his Petition to add a claim of

ineffective assistance of PCRA counsel. Defendant's Concise 1925(b) Statement of

Matters/Errors Complained of on Appeal ("Statement of Errors") at~~ 2(a)-2(d). For the

reasons set forth below, defendant's claims are without merit, and the PCRA Court's order

dismissing his PCRA Petition should be affirmed.

                                   II. FACTUALBACKGROUND

          The factual background of this matter is set forth in Judge Terniri's Opinion on direct

appeal:

                  A few days prior to January 21, 2009, Kenny Watts ("Watts")
          introduced his friend, Cassandra Cook-Powell ("Cook-Powell"), to his
          other friend, [defendant].  They spoke on the telephone and the two
          entered into an arrangement whereby [defendant) was to pay Cook-Powell
          $1,000 in exchange for Cook-Powell providing [defendant} with


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 information that would allow him to get a tax refund of several times that
 amount. [Defendant] never paid Cook-Powell.

          At this time, Cook-Powell was living with her husband, Charles
 Powell ("Powell"), and their two children at the residence of her brother,
 Kevin Cook ("Cook") at 1524 Overington Street. Cook's pregnant
 girlfriend, Emine Hajrejinaj ("Emine") also lived at this residence, as well
 as Michael Green ("Green"), the Cook's [sic] teenage cousin.

        When [defendant] did not pay Cook-Powell as per their
 arrangement, she called Watts and explained the situation. Watts called
 [defendant] and told him that Cook-Powell wanted her money.
 [Defendant] asked Watts, "Do I need to get my pump?" referring to a
 shotgun.

         The next day, January 27, 2008, when Cook-Powell still had not
 received her money, she went to [defendant's] house at 1519 Adams
 A venue, around the corner from the Cook residence. Cook drove her to
 [defendant's] house. He remained in his car and watched as Cook-Powell
 picked up two bricks and threw them through [defendant's] windows,
 breaking the glass.

        [Defendant's] girlfriend . called Watts and ranted about their
windows. Watts heard [defendant] in the background say, "Its on and
popping." Watts called Cook-Powell and told her that (defendant] was
furious about his windows and warned her to "watch her back."

         On January 31, 2008 at approximately 1 a.m., Emine drove Cook's
 Chrysler Sebring to McDonald's with Cook in the passenger seat. The
 rest of the people living at the residence remained at home. The couple
 returned home approximately fifteen minutes later and as they pulled up to
 the residence, they saw [defendant] and another male standing outside
 their house. Cook knew [defendant] because they had met earlier in the
 week and spent a few hours together drinking beers at Cook's house.
 Cook noticed that [defendant] had a shotgun and he also saw a red gas can
 and two Snapple bottles. Cook rolled down the window and asked
 [defendant] what he was doing. Cook told [defendant] that his sister was
 not home> that there were kids in the house, and that his girlfriend, Emine,
was pregnant. He told [defendant] to go home. The two men talked for
three or four minutes. Although Book [sic] begged him not to shoot,
[ defendant] fired a shot that went through the passenger side front door.
Then he moved in front of the passenger window, with the muzzle of the
shotgun in the car, and fired two more shots that hit Cook's right shoulder
and left arm. He fired again and hit Emine in the back as she attempted. to
turn away. He fired one more shot that hit Cook in the center of his chest.
[Defendant] and the other male ran away and Cook got out of the car in a
daze. A neighbor took him to the hospital where he blacked out and went
into a coma. Police were called and medics took Emine to the hospital.
Although she was pronounced dead at I :47 a.m., doctors were able to save


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         her baby through a Cesarean Section. A baby girl ("Baby Cook") was
         delivered at 28 weeks old in extreme critical condition.

                 Emine died as a result of a single shotgun wound to her upper
         back. Cook woke up from his coma two weeks later. He remained in the
         hospital for two-and-one-half months and went through nine or ten
         surgeries. He still suffers from his injuries. Baby Cook was in the
         hospital for six months. She is now two years old and cannot talk. She
         requires special medical care that includes the use of a feeding tube.

 Trial Court Opinion, filed August 11, 2010.

                                            III. DISCUSSION

         If court-appointed counsel for a PCRA petitioner determines that the issues the

 petitioner raises for collateral review are meritless, and the PCRA court concurs, counsel may

 withdraw and the petitioner may proceed pro se, by privately retained counsel, or not at all.

 Finley, 550 A.2d at 218. To be permitted to withdraw, petitioner's counsel must file a no-

 merit letter, or "Finley letter," detailing the nature and extent of counsel's review and listing

 each issue the petitioner wished to raise, with counsel's explanation as to why the issues are

 meritless. Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009) (quoting Finley, 550 A.2d at

 215). After reviewing a Finley letter, the PCRA court is required to independently review the

 record to evaluate the petitioner's claims. Id. A PCRA petition may be dismissed without a

hearing if the Court determines that there are no claims of arguable merit and no purpose

would be served by further proceedings.     Commonwealth v. Lignons, 971 A.2d 1125, 1143

(Pa. 2009); see Pa.R.Crim.P. 907(1).

        In his prose PCRA petition, defendant claimed that he was entitled to collateral relief

on the following grounds: l) trial counsel was ineffective for failing to object to object to the

jury being permitted to review a police photo array containing defendant without also having

the statements of witnesses Cook-Powell and Watts; 2) trial counsel was ineffective for failing

to object to hearsay testimony from Cook; and 3) trial counsel was ineffective for failing to

call defense witnesses. PCRA Petition at pp. 3-4. Defendant further claimed ineffective


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 assistance of PCRA counsel in his Response to the Court's 907 Notice. 907 Response at~~ 9,

 11. Each of defendant's claims is considered below.

         A. Ineffective Assistance of Counsel

         Three of defendant's claims are premised upon his contention that he received

 ineffective assistance of counsel. Under Pennsylvania law, counsel is presumed to be

 effective and the burden to prove otherwise lies with the petitioner. Commonwealth v.

Basemore, 744 A.2d 717, 728 (Pa. 2000), n.10 (citing Commonwealth v. Copenhefer, 719

A.2d 242, 250 (Pa. 1998)). To obtain collateral relief based on the ineffective assistance of

counsel, a petitioner must show that counsel's representation fell below accepted standards of

advocacy and that as a result thereof, the petitioner was prejudiced. Strickland v. Washington,

466 U.S. 668, 694 (1984). In Pennsylvania, the Strickland standard is interpreted as requiring

proof that: (1) the claim underlying the ineffectiveness claim had arguable merit; (2) counsel's

actions lacked any reasonable basis; and (3) the ineffectiveness of counsel caused the

petitioner prejudice. Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009); Commonwealth

v. Pierce, 527 A.2d 973 (Pa. 1987). To satisfy the third prong of the test, the petitioner must

prove that, but for counsel's error, there is a reasonable probability that the outcome of the

proceeding would have been different. Commonwealth v. Sneed, 899 A.2d 1067, 1084 (Pa.

2006) (citing Strickland, 466 U.S. at 694). If the PCRA court determines that any one of the

three prongs cannot be met, then the court need not hold an evidentiary hearing as such a

hearing would serve no purpose. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008), appeal denied, 956 A.2d 433 (Pa. 2008).

        1. Failure to Request that Witness Statements be Sent Out to Deliberating Jury

       Defendant first claims "the Court committed an error of law by determining that trial

counsel. .. was not constitutionally ineffective in that trial counsel permitted, without

objection, the jury to review during deliberation the unduly suggestive photo-array without


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 also having the related witnesses Cassandra Cook-Powell and Kenneth Watts' statement to

 police." Statement of Errors at ,r 2(a). This claim is without merit.

          The Rules of Criminal Procedure provide that, "[ uJpon retiring, the jury may take with

 it such exhibits as the trial judge deems proper except (that] ... [d]uring deliberations, the jury

 shall not be permitted to have: ( 1) a transcript of any trial testimony; (2) a copy of any written

 or otherwise recorded confession by the defendant; (3) a copy of the information; [or] (4)

 writtenjury instructions." Pa.R.Crim.P. 646. In general, a jury should be permitted to review

 materials during deliberations where those materials inform the jury and aid it in the

determination of the facts. Commonwealth v. Lilliock, 740 A.2d 237, 243 (Pa. Super. 1999),

appeal denied, 795 A.2d 972 (Pa. 2000). However, a Court should not allow the jury to

possess an exhibit if it is likely that the jury would skew its importance or give it undue

emphasis. Commonwealth v. Dupre, 866 A.2d 1089, 1102 (Pa. Super. 2005), appeal denied,

879 A.2d 781 (Pa. 2005); Commonwealth v. Strong, 836 A.2d 884, 888 (Pa. 2003);

Commonwealth v. Riggins, 386 A.2d 520, 525 (Pa. 1978). So long as an exhibit is not

specifically prohibited by the rule from being submitted to the jury, a trial court's decision to

grant or deny jury access to such an exhibit will not be reversed absent an abuse of discretion.

See e.g., Commonwealth v. Bango, 742 A.2d 1070, 1072 (Pa. 1999); Riggins, supra, 386 A.2d

at 525.

          Here, the deliberating jury requested that the judge send out the statements of Cook-

Powell and Watts and the photo spread. However, while the statements of Cook-Powell and

Watts were identified by the witnesses and admitted into evidence, the contents of the

statements were never read to the jury. N.T. 3/2/10 at 45-47; N.T. 2/23/10 at 18-19, 101. The

sole use of the statements at trial was to confirm that these witnesses were interviewed by, and

gave statements to, the police. For that reason, it would have been manifestly inappropriate

for the trial judge to send out the statements to the jury and have the jurors, during


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  deliberations, see the contents of the statements for the first time. Accordingly, Judge Temin

  denied the jurors request for the statements. N.T. 3/2/10 at 45-47. Because the record

 establishes that Judge Ternin's decision was reasonable, defense counsel had no valid ground

 for objecting to the Cami's ruling and, therefore, could not have been ineffective for failing to

 do so. No relief is due.

         2. Failure to Object to Hearsay Testimony

         Defendant next claims that the Court erred in "determining that trial counsel's [sic]

 were not constitutionally ineffective for failing to move to stricken [sic] prejudicial hearsay

 testimony elicited from Kevin Cook, and failing to request for a curative instruction."

 Statement of Errors at~ 2(b). From defendant's PCRA Petition, it is apparent that defendant

 is referring to testimony by Cook, in which he stated that he had told his brother-in-law,

 Charles Powell, that "Tyree [the defendant] shot me." According to defendant, Cook's out-of-

 court statement to Powell identifying defendant as the shooter was hearsay, since it was

offered to prove the truth of the matter asserted, that is, that defendant was the person who

shot Cook. PCRA Petition at p. 22-24.

        This claim is frivolous. Rule 803.1 (2) provides for an exception to the hearsay rule for

"[a) prior statement by a declarant-witness identifying a person or thing, made after perceiving

the person or thing, provided that the declarant-witness testifies to the making of the prior

statement." Pa.RE. 803 .1 (2). Under this rule, a witness may testify to any prior identification

that he or she made, so long as the witness testifies at trial and is subject to cross-examination.

Because any such prior identification is admitted as an exception to the hearsay rule, it is

properly considered by the factfinder for the truth of the matter asserted. See Pa.R.E. 803.1 (2);

Commonwealth v. Wilson, 861 A.2d 919, 920 (Pa. Super. 2004). Because the testimony here

at issue was admissible under an exception to the hearsay rule, counsel could not have been




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     ineffective for failing to move to strike it or for failing to request a curative instruction.   No

     relief is due.

             3. Failure to Call Defense Witnesses

             Defendant next claims that the Court erred by "determining that trial counsel's [sic]

     were not constitutionally ineffective for failing to investigate and call ... Belinda Hamilton and

     Omar, whom testimonies could have been capable of casting doubt upon the prosecution

     witnesses truthfulness." Statement of Errors at~ 2(c). This claim is without merit.

             In order to prevail on a claim that trial counsel was ineffective in failing to call a

    witness, the petitioner must plead and prove "that: (1) the witness existed; (2) the witness was

    available to testify for the defense; (3) counsel knew 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

    witness' testimony was so prejudicial to have denied [the defendant] a fair trial."

    Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super. 2010) (quoting Commonwealth v.

    Wright, 961 A.2d 199, 155 (Pa. 2001)).

            In his PCRA Petition, defendant asserts that trial counsel should have called Belinda

    Hamilton as a witness in order to impeach Kenny Watts' testimony that defendant said "Do I

    need to get my pump?" and "Its' on and popping." PCRA Petition, p. 36-38. However,

    nothing in the record supports defendant's assertion that the absence of Hamilton's testimony

    was prejudicial to his case.

            As to defendant's reference to his "pump,"' it is true that Watts testified that he had a

telephone conversation with defendant during which defendant told Watts, "Do I have to go

get the pump? Do I need the pump"," after Watts told defendant that Cook-Powell was trying

to contact defendant about the money defendant owed her. N.T. 2/23/10 at 94-96. However,




1
    A "pump" is a street term for a shotgun. N.T. 2/23/1 O at 96.
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 there is nothing in the evidence suggesting that Hamilton was present at the time and could

 have impeached Watts' testimony about that conversation. Id.

         Watts also testified that the day after Cook-Powell broke the windows at defendant's

 house, defendant's girlfriend, Jillian Sanders, called Watts to complain. While talking with

 Sanders, Watts could hear defendant in the background say, "Its on and popping." N.T.

 2/23/10 at 96-97. It is true that Hamilton, in a statement that she gave to the police, stated that

 she was with Watts when he received the telephone call from Sanders and that she "could

 overhear what they were saying." Exhibit E to PCRA Petition (Hamilton's statement) at 1. It

 is further hue that Hamilton's statement makes no reference to any statements made by

 defendant during that telephone call. Id. Assuming arguendo that Hamilton was available to

 testify at trial and would have testified consistent with her statement, there is no reason to

 believe that she would have substantially impeached Watts' testimony. First, Hamilton was

never asked, during her statement, whether she could overhear any statements of defendant in

the background or otherwise. Second, the fact that Hamilton, who was not on the phone

during the conversation between Sanders and Watts, could not hear a speaker in the

background on the other end of the call would be expected and not surprising. In any event,

the absence of Hamilton's proffered testimony certainly was not sufficiently prejudicial as to

have denied defendant a fair trial.

        Moreover, defendant never averred in his petition that Hamilton was now available to

testify, and PCRA counsel avers that Hamilton cannot be located. That is also fatal to

defendant's claim.

       As to counsel's failure to call "Omar," the record establishes that trial counsel, at

defendant's request, sent an investigator to a bar to explore an alibi claimed by defendant, and

that the defense investigator interviewed a bartender named, "Omar." N.T. 2/25/2010 at 80.

According to trial counsel's representation to the Court during the trial, "Omar told us that he


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  didn't recall anything, didn't know [ defendant], didn't know anything about anything. So that

  was all the information that we got about the alibi." N.T. 2/25/2010 at 80. While defendant

  avers in the petition that the investigator's interview of Omar was "specious," he proffers

  nothing to suggest that "Omar," if available, would be in any way helpful to the defense.

  Moreover, PCRA counsel avers that he has received no information enabling him to identify

  "Omar" or to locate him.

         The record therefore demonstrates that defendant was not denied effective assistance

 of counsel due to trial counsel's failure to call witnesses Hamilton and "Omar." This Court,

 therefore, did not en- in denying defendant relief on this claim.

         B. Court Error in Denying Petition without Hearing and Denying Request to Amend
            Petition

         Finally, defendant asserts that the Cami erred by denying defendant's PCRA Petition

 without a hearing and by denying defendant's 907 Response request for permission to amend

 the petition to assert a claim of ineffective assistance of PCRA counsel. Statement of Errors at

 ~ 2( d). These claims are without merit.

        Defendant's claim that the court erred by dismissing the PCRA Petition without a

hearing fails to specify any substantive claims for relief for which there were any genuine

issues of fact that would require a hearing. Therefore, no relief is due on this claim.

        In his 907 Response, defendant requested leave to amend his petition to add a claim of

ineffectiveness of PCRA counsel, Mr. Lammendola. Defendant further asserts that Mr.

Lammendola was ineffective for failing "to understand the evolution of the standard for

ineffective assistance of trial counsel." 907 Response at~ 16. For the reasons stated above,

defendant's underlying claims are without merit. Because all of the underlying claims are

without merit, the derivative claim of PCRA counsel's ineffectiveness is equally meritless.




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                                      IV. CONCLUSION

       For all of the foregoing reasons, the Court's order dismissing Defendant's PCRA

petition should be affirmed.




                                                  BY THE COURT:




                                                ~13~
                                                  GLENN B. BRONSON, J




                                          1I
