J-S27007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 DONALD GRIFFITH                        :
                                        :
                   Appellant            :   No. 1916 EDA 2017

                 Appeal from the PCRA Order May 30, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0004784-2011


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.:                           FILED JUNE 28, 2018

     Donald Griffith (“Appellant”) appeals pro se from the order denying his

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541–9546, without a hearing. We affirm.

     The PCRA court summarized the history of this case as follows:

           A jury convicted [Appellant] of first degree murder,
     possession of an instrument of crime (PIC) and violations of the
     Uniform Firearms Act (VUFA) on April 19, 2013. On that same
     day, [Appellant] was sentenced to life imprisonment without the
     possibility of parole. [Appellant] filed a post-[sentence] motion
     on April 23, 2013. The motion was denied on September 13,
     2013. On September 23, 2013, [Appellant] filed a notice of
     appeal, and was ordered on September 24, 2013 to file a
     statement of matters complained of on appeal. Said statement
     was filed on October 15, 2013. On January 17, 2014, this court
     issued an opinion. On October 6, 2014, the Superior Court
     affirmed the judgment of sentence.          [Commonwealth v.
     Griffith, 108 A.3d 103, 2768 EDA 2013 (Pa. Super. filed October
     6, 2014) (unpublished memorandum).]
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             On August 6, 2015, [Appellant] filed a pro se Post Conviction
       Relief Act (PCRA) petition.       Thereafter, on April 10, 2017,
       appointed counsel filed a “no merit” letter pursuant to
       Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988) and
       Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988).
       This court took the “no merit” letter under advisement, and issued
       a notice of intent to dismiss the PCRA petition pursuant to
       Pennsylvania Rule of Criminal Procedure 907 on April 24, 2017.
       On May 10, 2017, [Appellant] filed a response to counsel’s “no
       merit” letter. On May 30, 2017, this court issued an order formally
       dismissing [Appellant’s] PCRA petition [and permitting counsel to
       withdraw]. [Appellant] filed a notice of appeal on June 5, 2017.

PCRA Court Opinion, 10/19/17, at 1–2.

       On appeal, Appellant presents the following questions for our review:

       I.     Did the PCRA Court err by failing to hold an evidentiary
              hearing to develop Appellant’s claim that missing portions
              of his trial transcripts prevented him from adequate
              appellate review?

       II.    Was trial counsel ineffective for advising Appellant that
              material eyewitnesses did not need to be called to testify?

Appellant’s Brief at 4.1

       When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).     This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is


____________________________________________


1 As the facts of the crime are not germane to the issues raised, we do not
repeat them here. We note that Attorney Thomas L. McGill, Jr. (“trial
counsel”) represented Appellant at trial and on direct review.

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free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016). We will not disturb the PCRA court’s findings unless there is no support

for them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014).

      Appellant first complains that because the PCRA court found waiver, it

did not conduct an evidentiary hearing to develop Appellant’s claim that

missing portions of his trial transcript resulted in a meaningless appeal.

Appellant’s Brief at 7.   We reiterate that there is no absolute right to an

evidentiary hearing.    Commonwealth v. Springer, 961 A.2d 1262, 1264

(Pa. Super. 2008).     “[T]he PCRA court has discretion to dismiss a petition

without a hearing when the court is satisfied ‘there are no genuine issues

concerning any material fact, the defendant is not entitled to post-conviction

collateral relief, and no legitimate purpose would be served by further

proceedings.’” Commonwealth v. Cousar, 154 A.3d 287, 297 (Pa. 2017)

(citing Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013)). “[S]uch a

decision is within the discretion of the PCRA court and will not be overturned

absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015). On appeal, we examine the issues raised in light of the record

“to determine whether the PCRA court erred in concluding that there were no

genuine issues of material fact and denying relief without an evidentiary

hearing.” Springer, 961 A.2d at 1264.




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       Appellant desired an evidentiary hearing to develop his claims of

ineffective assistance of counsel (“IAC”). When considering an IAC claim, we

presume that counsel provided effective representation unless the PCRA

petitioner pleads and proves that: (1) the underlying claim is of arguable

merit; (2) counsel had no reasonable basis for his action or inaction; and (3)

petitioner was prejudiced by counsel’s action or omission. Commonwealth

v. Johnson, 179 A.3d 1105, 1114 (Pa. Super. 2018) (citing Commonwealth

v. Pierce, 527 A.2d 973, 975–976 (Pa. 1987)).                 “In order to meet the

prejudice prong of the ineffectiveness standard, a defendant must show that

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

the result of the proceeding would have been different.’” Commonwealth v.

Reed, 42 A.3d 314, 319 (Pa. Super. 2012).              An IAC claim will fail if the

petitioner’s   evidence   fails   to   meet    any    one    of   the   three   prongs.

Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). Because courts

must    presume    that   counsel      was    effective,    the   burden   of   proving

ineffectiveness rests with the petitioner. Commonwealth v. Montalvo, 114

A.3d 401, 410 (Pa. 2015). “In accord with these well-established criteria for

review, [an appellant] must set forth and individually discuss substantively

each prong of the Pierce test.”        Commonwealth v. Fitzgerald, 979 A.2d

908, 910 (Pa. Super. 2009).

       Contesting the PCRA court’s finding of waiver, Appellant asserts that he

“did meaningfully discuss each prong of [trial] counsel’s ineffectiveness” in


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failing to raise a challenge to objectionable portions of the prosecutor’s closing

arguments.2 Appellant’s Brief at 7 (citing Objection to Counsel’s Finley Letter,

5/10/17). Additionally, Appellant contends that PCRA counsel failed “to review

the record when Appellant raised the claim in an initial pro se petition” and

failed “to exercise reasonable diligence” by not raising a claim of trial counsel’s

ineffectiveness. Id. at 8.

       In his no-merit letter, PCRA counsel advised that Appellant could have

raised the incomplete-transcript issue on direct appeal, but did not; therefore,

Appellant waived it. Letter of No Merit Pursuant to Commonwealth v. Finley,

4/10/17, at 12. Additionally, PCRA counsel opined that Appellant:

       does not provide any details regarding what those prejudicial
       statements were.[3] Further, [t]he trial record does not indicate
       that [trial counsel] (who is presumed to be effective) objected to
       or placed any alleged prejudicial statements on the record. As a
       result, this allegation of ineffective assistance of counsel has been
       waived for lack of development.


____________________________________________


2 According to Appellant, the prosecutor “comment[ed] upon his opinion of
what Appellant’s state of mind was during commission of the offense.”
Appellant’s Brief at 9.

3   PCRA counsel described Appellant’s claim as follows:

       The Petitioner claims that the Prosecutor “referred to Petitioner’s
       state of mind several times in his closing argument with prejudicial
       remarks.” PCRA, p. 9 (unnumbered) (8/6/2015). The Petitioner
       further claims that the Prosecutor made “repeated prejudicial
       comments about Petitioner’s mental state [which] inflamed the
       jury’s determination such that they were unable to render a true
       verdict.” PCRA, p. 10.

Letter of No Merit Pursuant to Commonwealth v. Finley, 4/10/17, at n.9.

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Id. at 13.

      The PCRA court addressed Appellant’s first issue as follows:

      [Appellant] contends that his “appeal was meaningless because
      the prosecutor made prejudicial statements during his closing
      argument and the arguments were not transcribed” by the court
      reporter. As an initial matter, this contention has been waived
      since it could have been, but was not litigated on direct appeal.
      42 Pa.C.S.A. § 9544 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 post-
      conviction proceeding.” Additionally, if an appellant fails to
      meaningfully discuss each of the three ineffectiveness prongs, “he
      is not entitled to relief, and we are constrained to find such claims
      waived for lack of development.” Commonwealth v. Fears, 86
      A.3d 795, 804 (Pa. 2014) (citing Commonwealth v. Steele, 961
      A.2d 786, 797 (Pa. 2008)). [Appellant] argues that he was
      prejudiced by the prosecutor’s comments but fails to identify the
      allegedly prejudicial comments.           Thus, this undeveloped
      ineffective assistance of counsel claim is meritless.

PCRA Court Opinion, 10/19/17, at 6–7.

      Upon review, we agree with the PCRA court that Appellant waived his

first issue. Appellant did not raise this issue on direct appeal. Arguably, his

failure to do so is excused because he is alleging ineffective assistance of

counsel. See Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998)

(“[A] PCRA petitioner’s waiver will only be excused upon a demonstration of

ineffectiveness of counsel in waiving the issue.”). However, when Appellant

resurrected his challenge to the prosecutor’s comments in his pro se PCRA

petition, he did not frame it as an IAC claim. PCRA Petition, 8/6/15, at ¶ 9;

42 Pa.C.S. § 9543(a)(2)(iii). In fact, Appellant first raised an IAC claim based

on the prosecutor’s comments in his response to counsel’s “no merit” letter;


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however, he did not raise the IAC claim against trial counsel, but against PCRA

counsel, arguing that PCRA counsel should have filed an amended petition that

raised trial counsel’s ineffectiveness.    Objection to Counsel’s Finley Letter,

5/10/17, at ¶¶ 6–8.

      Moreover, Appellant failed to develop an IAC claim against trial counsel

and PCRA counsel in his appellate brief.        Pa.R.A.P. 2119(a).   He does not

discuss or apply the standard for ineffectiveness claims, and he fails to develop

an argument concerning the Pierce factors. “Such an undeveloped 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 any relief.” Commonwealth v. Bracey,

795 A.2d 935, 940 n.4 (Pa. 2001).         Consequently, Appellant’s current IAC

claim against trial counsel is waived, and his derivative claim of PCRA counsel

ineffectiveness fails. See Commonwealth v. Hall, 872 A.2d 1177, 1184 (Pa.

2005) (explaining that failure on the part of the petitioner to develop all three

Pierce prongs will result in a failure to “establish the arguable merit prong of

the claim of subsequent counsels’ ineffectiveness”).

      Given our conclusion that Appellant waived his first issue, we discern no

abuse of the PCRA court’s discretion in denying relief without an evidentiary

hearing, as there were no genuine issues of material fact. Cousar, 154 A.3d

at 297. Appellant’s contrary assertion fails.




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       In his second issue, Appellant again assails trial counsel’s representation

as ineffective. Appellant’s Brief at 11. According to Appellant, trial counsel

lacked a reasonable strategic basis “for counseling Appellant to agree to not

call witnesses who’s [sic] testimony would have corroborated Appellants [sic]”

claim that he acted in self-defense. Id. at 12.4 Appellant also asserts that

“there exists a reasonable probability that, but for [trial counsel’s] action, the

jury would have been left with reasonable doubt as to Appellant’s culpability

for 1st Degree murder[;] a conviction of a lesser degree of murder would have

been more likely to occur had the jury heard the proffered testimony.” Id. at

13.

       In his no-merit letter, PCRA counsel explained that, although the

witness, Andrew Taylor, was available to testify, Appellant and trial counsel

“made a tactical and strategic decision not to call Mr. Taylor as a witness.”

Letter of No Merit Pursuant to Commonwealth v. Finley, 4/10/17, at 9.

Additionally, PCRA counsel detailed why Appellant’s “argument of ineffective

assistance of counsel for failing to call Mr. Taylor has no arguable merit nor

was there a reasonable probability that the outcome of the proceedings would

have been different had Mr. Taylor testified.” Id. at 9–10.



____________________________________________


4 At trial, the defense considered calling two witnesses, Andrew Taylor and
Angel Ortega. N.T., 4/17/13, at 69. On appeal, Appellant argues that trial
counsel was ineffective for failing to call Andrew Taylor as a witness.
Appellant’s Brief at 12. Consequently, any challenge to the absence of Angel
Ortega’s testimony is waived.

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     The PCRA court addressed Appellant’s second claim of error as follows:

     [Appellant] claims that counsel was ineffective for failing to
     investigate and subpoena an eyewitness who made a statement
     to the police that [Appellant] attempted to back away from the
     witness and victim. To establish counsel’s ineffectiveness for
     failure to call a witness, [Appellant] must show that:

           (1) the witness existed; (2) the witness was available;
           (3) counsel was informed of the existence of the
           witness or counsel should otherwise have known of
           the witness; (4) the witness was prepared to
           cooperate and testify for Appellant at trial; and (5) the
           absence of the testimony prejudiced Appellant so as
           to deny him a fair trial. A defendant must establish
           prejudice by demonstrating that he was denied a fair
           trial because of the absence of the testimony of the
           proposed witness. Further, ineffectiveness for failing
           to call a witness will not be found where a defendant
           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)[,] appeal denied, 860 A[.]2d 123 (Pa. 2004) (quoting
     Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super 2002).

           In order to demonstrate prejudice, a petitioner must show
     how the uncalled witnesses’ testimony would have been beneficial
     under the circumstances of the case. Thus, counsel will not be
     found ineffective for failing to call a witness unless the petitioner
     can demonstrate that the witness’s statement would have been
     helpful to the defendant. A failure to call a witness is not per se
     ineffective assistance of counsel, for such decision usually involves
     matters of trial strategy. Commonwealth v. Sneed, 45 A.3d 1096,
     1108–[11]09 (Pa. 2012).

            In this case, [Appellant] argues that counsel was ineffective
     for failing to investigate and subpoena a witness, Andrew Taylor,
     despite his availability. The trial record shows that [Appellant]
     and counsel made a strategic decision not to call Mr. Taylor as a
     witness:




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        Counsel:       Judge, over lunch I had the opportunity to
                       discuss with [Appellant] the thought of calling
                       Mr. Taylor and Mr. Ortega as witnesses in the
                       defense’s case.   After considering both the
                       upside and downside, we were in agreement
                       that we would not call them.

     N.T. 4/17/2013 at 78.

           Thereafter, based on counsel’s representation, this court
     conducted a colloquy with [Appellant] on the strategic decision to
     not call Taylor as a witness:

        Court:         [Trial counsel] has told me that you also
                       decided for tactile (sic) and strategic
                       purposes not to call as a witness Andrew
                       Taylor and you will not be calling as a witness
                       Angel Ortega; is that correct?

        Defendant:     Yes, sir, it is.

        Court:         You discussed this with him?

        Defendant:     Yes, sir.

        Court:         The two of you are in agreement that you will
                       not call either one of those witnesses - is that
                       right?

        Defendant:     Yes, sir.

        Court:         Did anyone threaten you, promise you
                       anything or force you to make any of the
                       decisions you made?

        Defendant:     No, sir.

        Court:         Are those decisions made of your own free
                       will?

        Defendant:     Yes, sir.

        Court:         Did you discuss them with [trial counsel]?


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             Defendant:     Yes.

             Court:         Are you satisfied with [his] services?

             Defendant:     Absolutely, yes, sir.

          N.T. 4/17/2013 at 81-82.

                Here, petitioner is bound by his statements made during the
          oral colloquy and may not now assert a claim that contradicts his
          in court admissions. Commonwealth v. Muhammad, 794 A.2d 378,
          384 (Pa. Super. 2002). Thus, this claim is meritless.

PCRA Court Opinion, 10/19/17, at 7–9.

          The record disproves Appellant’s claim that trial counsel was ineffective

for failing to call Andrew Taylor as a witness.         The trial court colloquied

Appellant regarding his strategy not to present the witness. N.T., 4/17/13, at

81–82. Appellant specifically informed the trial court that he was aware of his

right to present the witness, but that he decided not to call him after

consultation with his attorney. Id. The trial court found that Appellant “has

knowingly, intelligently, and voluntarily been able to make the decisions

discussed on this record.” Id. at 82. Having made an informed decision not

to call Andrew Taylor as a witness, Appellant cannot now fault trial counsel for

failing to do so. Commonwealth v. Ligons, 971 A.2d 1125, 1148 (Pa. 2009)

(citations omitted). The record supports the conclusions of the PCRA court,

and its ruling is free of legal error. Thus, we affirm the order denying Appellant

relief.

          Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/18




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